United States District Court, W.D. Washington, Seattle
ORDER ADOPTING REPORT AND RECOMMENDATION
RICARDO S. MARTINEZ CHIEF UNITED STATES DISTRICT JUDGE.
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.
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.
Claim 1 - Firearm Sentencing Enhancements
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
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.
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.
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.
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.
not incorrect on how such a standard would be treated if
present, 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. Dkt. #93 at 10.
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.
Claims 2 and 3 - Amendment to Information and Adequate Notice
of Enhanced Penalty
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