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Thomas v. Miller-Stout

United States District Court, W.D. Washington, Seattle

April 4, 2018

DEMICKO BILLIE THOMAS, Plaintiff,
v.
MAGGIE MILLER-STOUT, Defendant.

          ORDER ADOPTING REPORT AND RECOMMENDATION

          RICARDO S. MARTINEZ CHIEF UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION

         The present matter comes before this Court on a petition for habeas relief. This Court has had an opportunity to review Petitioner's amended petition, Judge Tsuchida's Report and Recommendation (“R&R”), and Petitioner's Objections to that R&R. For the reasons set forth below, the Court now APPROVES and ADOPTS the R&R, with the exception that this Court also grants the issuance of a limited Certificate of Appealability.

         II. BACKGROUND

         On July 1, 2016, Petitioner, Demicko Billie Thomas, submitted an amended petition for writ of habeas corpus, arguing that he is entitled to habeas relief under 28 U.S.C. § 2254 with respect to his convictions for first degree robbery, first degree kidnapping, attempted first degree robbery, first degree assault, and unlawful possession of a firearm. Dkts. #70 and #70-1. In his amended petition, Petitioner raises eighteen claims on which he asserts a basis for relief. Dkts. #70 at 25-65 and #70-1 at 1-66. On July 11, 2017, the Honorable Brian A. Tsuchida, United States Magistrate Judge, issued an R&R recommending dismissal of all eighteen claims and the denial of a certificate of appealability. Dkt. #93. Petitioner, after choosing to proceed pro se, filed his Objections to the R&R on December 1, 2017. Dkt. #108.

         III. DISCUSSION

         A. Claim 1 - Firearm Sentencing Enhancements

         On Claim 1, Petitioner argues that his right to due process was violated when the State failed to prove at trial that he possessed an “operable” firearm during the commission of his underlying crimes, an essential element for each of the firearm enhancements under which he was convicted. Dkt. #70 at 25-30. Specifically, he argues that the prosecution did not present sufficient evidence to prove that the gun used in the second robbery was capable of firing a projectile in order to meet the statutory definition as a “firearm” under the enhancement. Id. at 28.

         Judge Tsuchida determined that the state courts viewed the “record as a whole in the light most favorable to the prosecution, ” with deference to the trier of fact, and found sufficient evidence existed for the jury to find that the gun used in the second robbery qualified as a firearm under the enhancement. Dkt. #93 at 6-10. Judge Tsuchida concluded that the state court's determination was therefore neither contrary to, nor an unreasonable application of, federal law, and Petitioner's Claim 1 one should be denied. Id. at 10.

         Petitioner raises a number of objections to that conclusion. First, Petitioner argues that the Magistrate Judge erred by failing to apply Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), to evaluate whether the substantive elements of the crime were proven. Dkt. #108 at 12. Second, Petitioner argues that there was no evidence presented that supports that the gun used in the robberies was either “operable” or a “firearm in fact.” Id. Third, Petitioner argues that the Magistrate Judge erred in not following the “law of the case” doctrine requiring the state to prove each and every element named in the jury instructions. Id. Finally, Petitioner argues that the state court holding that “whether the gun was operable does not matter, the prosecution only needed to show (not prove), that the gun ‘appeared real' rather than a toy, ” was contrary to, and an unreasonable application of, federal law. Id.

         In regards to Petitioner's first objection, his assertion regarding the standard employed by the Magistrate Judge is incorrect. Dkt. #108 at 12. Judge Tsuchida correctly identified and applied the standard set forth in Jackson; assess whether any rational trier of fact could have found the elements of the crime beyond a reasonable doubt, while viewing the record as a whole in the light most favorable to the prosecution. Dkt. #93 at 6 (citing Jackson, 443 U.S. at 319). Addressing Petitioner's second, third, and fourth objections, under Jackson, Judge Tsuchida was not required to determine whether he felt that the evidence was sufficient to prove every element beyond a reasonable doubt, only whether any rational trier of fact could have found that it did. Id. Accordingly, Judge Tsuchida was not limited to the state court cases cited by Petitioner, and appropriately considered all of the available evidence, the state law relied upon by the state courts, and the elements listed in the jury instructions. Id.

         Petitioner also objects to Judge Tsuchida's conclusions regarding the state court's treatment of the element of firearm “operability.” Id. at 12-13. In his Objections, Petitioner asserts that the State Court of Appeals held that “whether the gun was operable does not matter, the prosecution only needed to show (not prove), the gun ‘appeared real' rather than a toy.” Id. at 13. Petitioner argues that without proof of “operability, ” he was convicted on evidence insufficient to prove an element of the firearm enhancement beyond a reasonable doubt. Id. Petitioner cites to a number of United States Supreme Court and Washington State cases for the proposition that a standard allowing conviction on less than proof of all elements of a crime would impermissibly lower the burden of proof held by the state. Id. at 13-14.

         While not incorrect on how such a standard would be treated if present[1], the standard complained of by Petitioner is neither found within the language of the state court's determination, nor a reflection of the legal analysis performed by the State Court of Appeals, State Supreme Court, or Judge Tsuchida. See Dkts. #89, Ex. 2 at 3-5 and Ex. 40 at 4, and Dkt. #93 at 6-10. Instead, the state court's legal analysis recognized that “operability” may be proven through a variety of evidence, including evidence the gun was fired during the commission of a crime, or witness testimony and circumstantial evidence. Dkts. #89, Ex. 2 at 3-5 and Ex. 40 at 4. In reviewing the state court's determination, Judge Tsuchida concluded that, when viewed in the light most favorable to the State, the evidence was sufficient to find Petitioner guilty beyond a reasonable doubt.[2] Dkt. #93 at 10.

         With regards to Petitioner's objection that the State Court of Appeal's erred in not applying the same analysis as in State v. Recuenco, 163 Wn.2d 428, 180 P.3d 1276 (2008) and State v. Pierce, 155 Wn.App. 701, 230 P.3d 237 (2010), even assuming the state court erred, such an error of state law is not entitled to habeas relief and is not cognizable in federal court. See Estelle v. McGuire, 502 U.S. 62, 67, 112 S.Ct. 475, 480, 116 L.Ed.2d 385 (1991); see also Bonillas v. Hill, 134 F.3d 1414, 1417 (9th Cir. 1998). Accordingly, the Court adopts the R&R and denies Claim 1.

         B. Claims 2 and 3 - Amendment to Information and Adequate Notice of Enhanced Penalty

         In Claims 2 and 3, Petitioner argues that he has been deprived of his right to due process, and the protections of the Sixth and Fourteenth Amendments. Dkt. #70 at 30-39. With respect to Claim 2, Petitioner argues that the trial court erred when it constructively amended the charging information by issuing a “to convict” jury instruction that included both the “displaying” and “armed with” alternative means of committing the crime of robbery. Id. at 30-35. Petitioner asserts this was improper, as he was only initially charged in the original information with the “displaying” means. Id. With respect to Claim 3, Petitioner argues that the charging information did not properly notify him of the potential ...


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