Petition for Rehearing — Douglas Dean Scyphers, Petitioner v. Washington

No. 25-7096

IN THE

Supreme Court of the United States

DOUGLAS DEAN SCYPHERS,

Petitioner,

V.

STATE OF WASHINGTON,

Respondent.

ON PETITION FOR REHEARING OF THE ORDER DENYING A

PETITION FOR A WRIT OF CERTIORARI TO THE COURT OF

APPEALS OF THE STATE OF WASHINGTON, DIVISION THREE

PETITION FOR REHEARING

(Pursuant to Rule 44.2 of the Rules of this Court)

Douglas Dean Scyphers

Petitioner, Pro Se

DOC No. 404358

Coyote Ridge Corrections Center

1301 N. Ephrata Ave., P.O. Box 769

Connell, Washington 99326-0769

RECEIVED

JUN 16 2026

OFFICE OF THE CLERK

SUPREME COURT, U.S.

QUESTIONS PRESENTED ON REHEARING

This petition for rehearing presents two substantial grounds that were not presented in, and so were

not considered upon, the petition for a writ of certiorari. See Sup. Ct. R. 44.2.

1. Whether rehearing is warranted because neither the petition for certiorari nor the courts below

squarely confronted that the state procedural grounds invoked to dismiss petitioner’s personal

restraint petition—untimeliness and successiveness—are neither “adequate” nor “independent”

of the federal questions, and therefore present no obstacle to this Court’s jurisdiction under 28

U.S.C. § 1257, where the Court of Appeals’ untimeliness holding rests on the demonstrably

false premise that petitioner “does not address the time bar, nor does he make an argument that

one of the exceptions applies,” and its successiveness holding rests on the premise that a claim

never adjudicated on the merits was nonetheless “previously” decided.

2. Whether rehearing is warranted to address the substantial ground—not previously presented

in this posture—that the Fourth Amendment’s threshold requirement that a warrant issue from

a neutral and detached magistrate raises a disputed question of historical fact (did any magistrate

ever authorize this warrant at all?) that a state court may not resolve against the accused on a

cold, silent record and without any evidentiary or reference hearing, and that the State’s

categorical refusal to permit such factfinding negates the “full and fair’ litigation predicate on

which any state-court foreclosure of a Fourth Amendment claim depends.

TABLE OF CONTENTS

QUESTIONS PRESENTED ON REHEARING... ..ccccsecssesseeesseteeesneenseennseeessaceesrsesaeenaseeeseees

TABLE OF AUTHORITIES .......ccccccecssssscssscsssersesecseeserssseosscessensncses sdaannesdceneenesusassnonbnenaseenees iil

RULE 44.2 STATEMENT AND CERTIFICATE OF GOOD FAITH u....ccceccessceseessessessessesees 1

INTRODUCTION siigssccasssucswsnicnnskesun antaatewune siasieaniessonsesipeshayeseteansspbistancasscceanaeiiocseatcetanstyeieuantbwien 2

STATEMENT OF THE CASE japicsssssssscnseveicaseiraasonsosprasataatecaed uecsvsaucncssqin ninahcanibesascuesenapiveaassiies 3

GROUNDS FOR REHEARING. ,,.exsessenscsuvsedenuveey ssevmsiega ainda secougeuaisaiansaeviassnsenndanetanscmsbanqnasvespes 6

J. Adequate and Independent State Ground—A Ground... ccccesscseeecesecsseeserestesssneeeteenees

Not Previously Presented 0... ccc ceccceeseeceeseceeseeeneeeeceseeseseeneerteaeeeseeeeesieresneeessaesseasaeaeane 6

II, Disputed Historical Fact Resolved Without a Hearing... cc cecsceeseeeeneesesereseeeneseaseees 9

CONCLUSION wasssssssersnesssaneveiessasiennsasnnneaiowvasnncseunensiassascaavavancisneucuneansnneneavecenenesasannantaeuaosvesees 11

CERTIFICATE OF SER VICE ssvssssssxanscessscncessccsncssecastactcaccswasbcansiuas tarrbenaswannecversoviuiansieveaven 13

TABLE OF AUTHORITIES

Cases

Beard vy, Kindler, 558 U.S. 53 (2009)

Carnley v. Cochran, 369 U.S. 506 (1962)

Chatrie v. United States, No. 25-112 (U.S. argued Apr. 27, 2026)

Coleman y. Thompson, 501 U.S. 722 (1991)

Coolidge v. New Hampshire, 403 U.S. 443 (1971)

Ford v. Georgia, 498 U.S. 411 (1991)

Groh y. Ramirez, 540 U.S. 551 (2004)

Jackson v. Virginia, 443 U.S. 307 (1979)

James v. Kentucky, 466 U.S. 341 (1984)

Johnson y. United States, 333 U.S. 10 (1948)

Lee v. Kemna, 534 U.S. 362 (2002)

Michigan v. Long, 463 U.S. 1032 (1983)

NAACP vy. Alabama ex rel. Patterson, 357 U.S. 449 (1958)

Shadwick v. City of Tampa, 407 U.S. 345 (1972)

Stone v. Powell, 428 U.S. 465 (1976)

Walker v. Martin, 562 U.S. 307 (2011)

In re Pers. Restraint of Greening, 141 Wn.2d 687, 9 P.3d 206 (2000)

Kurtz v. Fels, 63 Wn.2d 871, 389 P.2d 659 (1964)

Constitutional Provisions, Statutes, and Rules

U.S. Const. amend. [V

U.S. Const. amend. XIV

28 U.S.C. § 1257

Sup. Ct. R. 44.2

RCW 10.73.090

RCW 10.73.100(1)

RCW 10.73.140

til

RULE 44,2 STATEMENT AND CERTIFICATE OF GOOD FAITH

Petitioner Douglas Dean Scyphers respectfully petitions for rehearing of this Court’s order

entered May 26, 2026 denying his petition for a writ of certiorari in No. 25-7096. This petition is

filed within 25 days of that order. See Sup. Ct. R, 44.2.

Rule 44.2 limits the grounds for rehearing of an order denying certiorari to “intervening

circumstances of a substantial or controlling effect or to other substantial grounds not previously

presented.” Petitioner does not rest this petition on a mere reargument of the points the Court has

already declined to review. He instead presents two substantial grounds not previously presented—

a threshold jurisdictional ground and a structural Fourth Amendment ground—each of which,

properly understood, removes the apparent obstacle that may have counseled denial and supplies

an independent reason for review,

CERTIFICATE. Pursuant to Rule 44.2, the undersigned petitioner, appearing pro se,

certifies that this petition for rehearing is presented in good faith and not for delay, and that it is

restricted to the grounds specified in Rule 44.2.

INTRODUCTION

This is the rare case in which the judge whose signature appears on a search warrant has twice

stated, in writing, after personally reviewing the court file, that he never signed it—that “the

warrant you seek signed by my department ... does not exist,” and that he “signed no warrants or

Court Orders in this case at all.” The judge’s own contemporaneous docket and the Clerk’s Journal

for the date the warrant purports to bear confirm the point: no application, no finding of probable

cause, no on- or off-docket order. Yet a facsimile of that judge’s signature appears on the warrant

that authorized the search of petitioner’s home and computers and produced the evidence on which

he was convicted.

No court has ever held a hearing to resolve how that signature came to be there. The state

courts insted disposed of the claim on procedural grounds that, on inspection, do not hold. The

order of the Court of Appeals states that petitioner “does not address the time bar, nor does he

make an argument that one of the exceptions applies.” That is incorrect: petitioner expressly

invoked the newly-discovered-evidence exception of RCW 10.73.100(1) and briefed it under the

governing state standard. And the “successive” bar was applied to a claim—that no magistrate ever

issued the warrant—that the state courts had never actually adjudicated on the merits. Because

these procedural rulings rest on a mistaken view of the record, they are not “adequate” state

grounds, and they do not insulate the federal questions from this Court’s review. That jurisdictional

point was not presented before. It should be now.

1.

convictions rested on evidence seized from his home and computers under a search warrant dated

“June 2, 2014 10:39 a.m.,” bearing the facsimile signature of Spokane County Superior Court

Judge Michael P. Price. The judgment became final on July 8, 2020, upon issuance of the mandate

STATEMENT OF THE CASE

In December 2017, a Spokane County jury convicted petitioner of multiple offenses. The

on direct appeal.

2.

the warrant directly from Judge Price. In a letter dated December 1, 2021, the judge responded, in

After a superior court ordered the State to produce discovery, petitioner sought a copy of

pertinent part:

3.

to Judge Price and asked him to search again. In a second letter dated January 6, 2022, the judge

wrote:

4,

Judge Price’s docket for June 2, 2014, together with the Clerk’s Journal for that date. Petitioner’s

case does not appear on the judge’s docket, and the Journal reflects no “off-docket” orders signed

[ have personally reviewed the Superior Court File under this cause number [14-1-

02950-1] and have specifically searched for a warrant which this Judicial Officer

may have signed in this case in either 2014 or 2015. In fact, no warrants in this case

were signed in any fashion in 2014 or 2015, or, for that matter, in any other year

that I was able to discover in my review of the file. As such, I am providing this

correspondence to you without any enclosure since an original warrant signed by

this department in 2014 or 2015 does not exist.

After the State produced the warrant in mid-December 2021, petitioner forwarded a copy

While there are multiple Orders in the Superior Court File signed by Judicial

Officers to include Judge Tompkins, Judge Sypolt, Judge Cozza, Judge Harold

Clarke III, and Judge Moreno, this case was never assigned to my department and

[ signed no warrants or Court Orders in this case at all. ... As before, | am providing

this correspondence to you without any enclosure since the warrant you seek signed

by my department in 2014 or 2015 does not exist.

In July 2023, the Spokane County Superior Court Administrator provided petitioner with

by Judge Price that day. The warrant’s facsimile signature is thus contradicted both by the judge’s

sworn-equivalent written statements and by the contemporaneous court records.

5. Petitioner pursued this evidence through successive collateral filings. In its order of May

15, 2025, the Court of Appeals, Division Three, dismissed the operative personal restraint petition

as “time-barred and successive.” In re Pers. Restraint of Scyphers, No. 41141-9-III. On the time

bar, the court stated that petitioner “does not address the time bar, nor does he make an argument

that one of the exceptions applies.” That statement is contradicted by the petition itself, which

invoked the newly-discovered-evidence exception of RCW_10.73.100(1) and analyzed it under

the governing state standard for newly discovered evidence.

6. On June 17, 2025, a Deputy Commissioner of the Washington Supreme Court denied

discretionary review. The Deputy Commissioner characterized the letters as evidence in which

“the judge seems to suggest he did not sign the search warrant,” observed that it was “not entirely

clear ... what materials Scyphers supplied to the judge,” and concluded that “nowhere does the

Judge state specifically that he did not sign the particular warrant involved in this case, nor does

he dispute that the signature ... is his.” The Deputy Commissioner further reasoned that “[w]hether

Judge Price signed the warrant was discoverable before trial in the exercise of reasonable

diligence,” and that the 2025 filing was not diligent in relation to evidence received in early 2022.

7. On October 8, 2025, the Washington Supreme Court (Department II) denied petitioner’s

motion to modify the Deputy Commissioner’s ruling and “also denied” his “request for a reference

hearing.” No court has ever held a hearing—treference, evidentiary, or otherwise—to determine

whether any magistrate in fact authorized the warrant.

8. Petitioner filed his petition for a writ of certiorari, pro se, on December 9, 2025. The petition

argued the merits of his Fourth and Fourteenth Amendment claims and the denial of an evidentiary

hearing. It did not separately frame the threshold question whether the state procedural grounds

were adequate and independent so as to bar this Court’s review under 28 U.S.C. § 1257. This Court

denied the petition on May 26, 2026. This timely petition for rehearing follows.

GROUNDS FOR REHEARING

I. THE JUDGMENT BELOW DOES NOT REST ON AN ADEQUATE AND

INDEPENDENT STATE GROUND; THE FEDERAL QUESTIONS ARE THEREFORE

REVIEWABLE—A SUBSTANTIAL GROUND NOT PREVIOUSLY PRESENTED.

This Court “will not review a question of federal law decided by a state court if the decision

of that court rests on a state law ground that is independent of the federal question and adequate to

support the judgment.” Coleman vy. Thompson, 501 U.S. 722, 729 (1991). The premise of that

rule is that an adequate and independent state ground actually exists. Where it does not—where

the asserted state ground is inadequate or is not in fact independent of the federal claim—the rule

supplies no barrier, and the federal questions are open to review under 28 U.S.C. § 1257.

Petitioner’s pro se certiorari petition argued the federal merits but did not present this threshold

point. It is a “substantial ground|] not previously presented” within the meaning of Rule 44.2, and

it is dispositive of the posture in which this case reaches the Court.

A. An exorbitant or mistaken application of a state procedural rule is not an “adequate”

state ground.

A state procedural ground bars this Court’s review only if it is both “firmly established and

regularly followed.” Ford v. Georgia, 498 U.S. 411, 423-24 (1991) (quoting James v. Kentucky,

466 U.S. 341, 348 (1984)). Even a generally sound rule will not suffice in “exceptional cases in

which exorbitant application of a generally sound rule renders the state ground inadequate to stop

consideration of a federal question.” Lee v. Kemna, 534 U.S. 362, 376 (2002). The adequacy of a

state ground is itself a federal question for this Court. See NAACP vy. Alabama ex rel. Patterson,

357 U.S. 449, 455-58 (1958). While discretionary state rules are not categorically inadequate, see

Beard y. Kindler, 558 U.S. 53, 60-61 (2009); Walker v. Martin, 562 U.S. 307, 316-21 (2011),

a procedural ruling that rests on a demonstrable misreading of the record is the paradigm of an

inadequate ground: it is neither a faithful application of the state rule nor a ruling “regularly

followed.”

B. The untimeliness ground rests on a misstatement of the record.

The Court of Appeals dismissed the petition as untimely on the express ground that petitioner

“does not address the time bar, nor does he make an argument that one of the exceptions applies,”

and that he had therefore “failed” to carry his burden of establishing an exception. That premise is

false. The operative petition squarely invoked the newly-discovered-evidence exception of RCW

10.73.100(1)—the only statutory exception that could apply to the Price letters and docket—and

analyzed it under the controlling Washington standard for newly discovered evidence. A dismissal

predicated on the supposed absence of an argument that was in fact made does not reflect the

“regular” application of Washington’s time bar; it reflects a mistake of fact. Such a ruling cannot

be an “adequate” ground to foreclose this Court’s review. Lee, 534 U.S. at 376.

C. The successiveness ground rests on a merits adjudication that never occurred.

The courts below also invoked the successive-petition bar of RCW_10.73.140, deeming

petitioner’s claims “previously” heard. But under Washington’s own standard, an issue is “heard

and determined on the merits” only if it was “sufficiently argued to command judicial

consideration and discussion,” such that “there is no reasonable basis to conclude that the merits

were [not] reviewed.” In re Pers. Restraint of Greening, 141 Wn.2d 687, 700, 9 P.3d 206 (2000).

The newly-discovered-evidence claim founded on Judge Price’s disavowal was never so reviewed.

The January 11, 2023 order addressed a different theory—the cross-referencing of an “Attachment

A” to the probable-cause affidavit—and did not analyze the letters as newly discovered evidence.

The December 20, 2023 order addressed the docket and Clerk’s Journal, again without

adjudicating the letters under the newly-discovered-evidence standard. A claim that no court has

decided on the merits cannot have been “previously” decided. Applying the successiveness bar to

such a claim is, once more, an inadequate ground.

D. The state grounds are not “independent” of the federal questions.

Independence is equally lacking. Whether the evidence is “newly discovered” turned, in the

courts below, on whether petitioner could, with “reasonable diligence,” have discovered before

trial that the magistrate never signed the warrant. That inquiry is interwoven with the federal

merits: a defendant has no duty to look behind the facial regularity of a warrant bearing a judge’s

signature, and his reliance on that facial validity is itself a matter of federal Fourth Amendment

law. See Kurtz v. Fels, 63 Wn.2d 871, 874-75, 389 P.2d 659 (1964) (due diligence does not require

looking behind facts on which one may reasonably rely). Where the state ground “fairly appears

to rest primarily on federal law, or to be interwoven with the federal law, and when the adequacy

and independence of any possible state law ground is not clear from the face of the opinion,” this

Court presumes that there is no independent and adequate state ground and proceeds to the merits.

Michigan y. Long, 463 U.S. 1032, 1040-41 (1983).

Because the threshold obstacle that ordinarily counsels against review of a state collateral

judgment is absent here—and because that point was not presented before—rehearing is warranted

so that the Court may consider the federal questions free of a procedural bar that does not, in fact,

bar them.

Il. WHETHER A NEUTRAL MAGISTRATE EVER AUTHORIZED THE WARRANT

{IS A DISPUTED HISTORICAL FACT THAT COULD NOT BE RESOLVED AGAINST

PETITIONER ON A SILENT RECORD WITHOUT A HEARING.

The second ground not previously presented in this posture is structural. The state courts

treated petitioner’s claim as a rehash of his pre-trial challenges to the warrant’s staleness and

supporting affidavit. But the claim founded on Judge Price’s disavowal is categorically different.

It is not that the warrant was supported by a stale or deficient affidavit; it is that no neutral

magistrate ever issued the warrant at all. That distinction implicates the bedrock of the Fourth

Amendment and could not be resolved against petitioner on a paper record.

A. Authorization by a neutral and detached magistrate is the Fourth Amendment’s

threshold requirement.

The Fourth Amendment’s central protection is that the decision to search be made not by the

officer “engaged in the often competitive enterprise of ferreting out crime,” but “by a neutral and

detached magistrate.” Johnson v. United States, 333 U.S. 10, 13-14 (1948). A warrant not issued

by such a magistrate is no warrant at all. See Coolidge v. New Hampshire, 403 U.S. 443, 449-53

(1971) (warrant invalid where not issued by a “neutral and detached magistrate”); Shadwick v.

City of Tampa, 407 U.S. 345, 350 (1972). And a warrant that is facially defective in a basic

respect cannot support a search, even where officers acted in subjective good faith. See Groh v.

Ramirez, 540 U.S. 551, 558-65 (2004). If, as Judge Price twice attested and as the

contemporaneous docket confirms, no magistrate ever authorized this warrant, then the search

rested on a document that the Fourth Amendment treats as a nullity, and the evidence it produced

was the fruit of a warrantless intrusion into the home—the place where the Fourth Amendment’s

protections are most heightened.

B. Whether the magistrate authorized the warrant is a question of historical fact

reserved to a factfinder.

Whether Judge Price’s facsimile signature reflects an authorization he made, or instead was

affixed without his act, is a question of historical fact. The Washington Supreme Court itself

recognized as much when petitioner asked for a reference hearing—and then denied it. Resolving

that disputed fact against petitioner on the papers usurped the role reserved to the trier of fact, “to

resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from

basic facts to ultimate facts.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). The Deputy

Commissioner’s observations—that the judge only “seem[ed] to suggest’ he did not sign, and did

not “dispute that the signature ... is his’—are precisely the kind of credibility and inference

determinations that a cold record cannot bear and that a hearing exists to resolve. The judge’s

letters are not equivocal: he stated he “signed no warrants or Court Orders in this case at all” and

that the warrant ‘does not exist.” At a minimum, the conflict between those statements and the

facsimile signature presents a genuine dispute that no appellate court could resolve by fiat.

This Court has long refused to permit findings adverse to a federal right to be presumed from

a silent record. “Presuming waiver from a silent record is impermissible.” Carnley v. Cochran,

369 U.S. 506, 516 (1962). The principle applies with equal force here: the State may not presume,

from a record that contains no application, no probable-cause finding, and no docket entry, that a

valid judicial authorization nonetheless occurred.

C. The refusal of any hearing negates the “full and fair” litigation predicate.

This ground also answers the concern that ordinarily limits review of Fourth Amendment

claims on collateral review. Under Stone v. Powell, 428 U.S. 465, 482, 494 (1976), a Fourth

Amendment claim is foreclosed only “where the State has provided an opportunity for full and fair

litigation” of it. A State that dismisses such a claim on a mistaken procedural premise and

categorically refuses any hearing to develop the dispositive facts has not provided that opportunity;

it has withheld it. The Stone predicate is therefore absent, and this case does not present the routine

Fourth Amendment claim that collateral-review doctrine is designed to channel away. It presents

the opposite: a substantial constitutional claim that has never been heard on the merits at all.

Rehearing should be granted so that the Court may consider directing the development of

these facts—whether by granting certiorari, by summarily vacating and remanding for the

reference hearing the state court denied, or by calling for a response from the State.

CONCLUSION

For the foregoing reasons, the petition for rehearing should be granted, the order denying

certiorari should be vacated, and the petition for a writ of certiorari should be granted. In the

alternative, the Court should vacate the judgment below and remand for the evidentiary or

reference hearing that the state courts declined to hold, or should call for a response from

respondent.

As a further alternative, and at a minimum, petitioner respectfully requests that this petition

be held pending the Court’s decision in Chatrie y. United States, No. 25-112 (U.S. argued Apr.

27, 2026). Although the question on which the Court granted review in Chatrie concerns the

execution of a geofence warrant, the case implicates the role of the neutral magistrate in the warrant

process and the circumstances under which reliance on a warrant later shown to be constitutionally

deficient may be deemed objectively reasonable. To the extent the Court’s decision in Chatrie

bears on the validity of a warrant that issued without any neutral-magistrate authorization, or on

the reasonable-reliance question presented here, its resolution may affect the questions petitioner

raises. Petitioner therefore asks, in the alternative, that this petition be held and then disposed of

as the decision in Chatrie may direct.

Respectfully submitted,

“Oo O(/

Douglas/Dean Styphers i

Petitioner, Pro Se

DOC No. 404358

Coyote Ridge Corrections Center

1301 N. Ephrata Ave., P.O. Box 769

Connell, Washington 99326-0769

Dated: “June U _, 2026

Executed on this 4th day of June, 2026.

AT: Franklin County; Connell, WA. 99326

I, DOUGLAS DEAN SCYPHERS, hereby certifies under penalty of perjury, under

the laws of the United States, pursuant to 28 U.S.C. § 1746, that the

foregoing is true and correct.

OND (>

DOUGLAS“DEAN SCYRHARS, pro se,

Petitioner

CERTIFICATE OF SERVICE

I, Douglas Dean Scyphers, declare under penalty of perjury under the laws of the United

States, pursuant to 28 U.S.C. § 1746, that on the 4th day of June , 2026, I served a copy

of the foregoing Petition for Rehearing by depositing it in the institutional legal-mail system at

Coyote Ridge Corrections Center, with first-class postage prepaid, addressed to counsel for

respondent at the Office of the Attorney General of Washington / Spokane County Prosecuting

Attorney, and that I caused the original of this petition to be transmitted to the Clerk of this Court.

The foregoing is true and correct.

Addressed to:

1. Washington State Attorney General

Nickolas Brown

P.O. Box 40100

Olympia, WA. 98504

by USPS cert. mail, trkg. no. : 9589 0710 5270 3375 4292 44

2. Supreme Court of the United States

1 First Street, NE

Washington, D.C. 20543

by USPS cert. mail, trkg. no. : 9589 0710 5270 3375 4292 37