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Abuse of Discretion - StevenDarbyMcdonald.com

 

 

 
 
 
 
 
 
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
 

STEVEN DARBY McDONALD,
 
                                      Petitioner,
 
      vs.
 
DOUGLAS WADDINGTON,
 
                                      Respondent.
 
CASE NO. C07-135-JCC-MJB
 
MOTION REQUESTING LEAVE TO AMEND GROUND VI TO PETITION FOR WRIT OF HABEAS CORPUS
 
Clerk’s Action Required:
Please Note Immediately on Calendar

 
 
COMES NOW the petitioner and respectfully requests Leave to Amend his petitioner for writ of habeas corpus based on the following reasons.
 
The petitioner’s Traverse and the Attorney General’s reply have already been filed. Pursuant to CR 15(a), the petitioner must now request court permission to amend his pleading. The Attorney General then has 10 days to respond.
 
1.      The petitioner is proceeding pro se without benefit of counsel. He had contracted with a professional typing service in Seattle to type his pleadings and to provide him with the most current and updated legal opinions. This legal service provides these services to many lawyers in Seattle. Its president, Ila McCullough, had been paid to perform this service by petitioner’s friend, Dr. Roy Giles, M.D., who recently passed away. Professional Business Associates will no longer provide these services to the petitioner.
 
2.      The legal case laws that the petitioner receives in the prison law library are several months later than when they were initially issued. This several month delay means that he cannot use the prevailing law as soon as its available, which had he known about these recent decisions, he would have incorporated Ground Six in his petition at the time he initially filed it.
 
3.      Several recent cases support his already fully exhausted federal constitutional claims that his sentence is in error. This claim has been fully presented to the state’s highest court. The most recent case, State v. Mondoza, No. 34698-2-II (7/17/07), concerns a factual situation where the trial court failed to properly determine a defendant’s prior criminal history; yet this exact holding has not been released to the prison’s law library.
 
4.      Other recent decisions that the petitioner was not aware of, and had he bee, would have timely presented Ground Six are, State v. Theifault, 160 Wn.2d 409 (2007) and State v. Moncrief, 137 Wn.App. 729 (2007), again both dealing with the contents of petitioner’s Ground Six, that his three-strike sentence is constitutionally infirm because it was improperly calculated and based on unconstitutional prior criminal convictions. This is not a claimed state sentencing error, but an alleged violation of both substantive and procedural due process of law as contravened by the Fifth and Fourteenth Amendment.
 
5.      Other factors that this Honorable Court should take into consideration in determining whether to grant this request is the severity of the sanction imposed: a mandatory life sentence without the possibility of parole. Because this is the second harshest sentence a court can impose, at the very least a proper review and evaluation of the factors utilized by the sentencing court to impose such a sentence should take place. And more importantly comport with due process of the law. (See Argument, Ground Six Attached) Petitioner’s argument is that it has not.
 
6.      To allow this amendment to take place will assist the court in the proper adjudication of this entire matter, and set forth the proper constitutional standard when dealing with claims such as this. There is much confusion presently in this area that needs to be settled, and petitioner is requesting this court’s assistance.
 
BASED ON THE FOREGOING, petitioner respectfully requests that he be allowed to amend his petition with Ground VI.
 
Respectfully Submitted,
 
 
                                                   ______________________________________
Steven Darby McDonald #703852, C-315
Monroe Correctional Complex/WSR
PO Box 777
Monroe, WA 98272
 
 
CERTIFICATE OF SERVICE
 
I, Steven Darby McDonald, do hereby certify that a true and correct copy of the foregoing has been mailed prepaid by US Postal Authorities to: Ronda Larson Assistant Attorney General, PO Box 40116, Olympia, WA 98504 on this 20th day of September 2007.
 
I declare under penalty of perjury that the foregoing is true and correct under the laws of the State of Washington.
 
 
Dated: 9/20/07                                          ______________________________________
                                                   Steven Darby McDonald #703852/C-315
                                                   Monroe Correctional Complex/WSR
                                                   PO Box 777 Monroe, WA 98272


GROUND-VI
 
THE PETITIONER WAS DENIED PROCEDURAL DUE PROCESS OF LAW IN VIOLATION OF THE FIFTH AND FOURTEENTH AMENDMENT WHEN THE TRIAL COURT FAILED TO CONDUCT THE MANDATORY COMPARABILITY ANALYSIS OF HIS FOREIGN CONVICTIONS AT SENTENCING AND BEFORE THEIR USE AS PREDICATE FELONIES COMPARABLE TO WASHINGTON FELONIES TO SUPPORT A THREE-STRIKE SENTENCE
 
 
A.       Overview of Claim
 
At sentencing petitioner objected to the Court’s use of his 1978 Florida robbery convictions as predicate felonies he claimed were unconstitutional because no factual bases had been established to support his plea and the degree of offense he actually committed, and because the Florida robbery statute and the Washington robbery statute were not legally comparable. The sentencing court denied all objections without taking testimony, performing the mandatory legal and factual comparability analysis of the statutory elements from both jurisdictions and/or the review of the petitioner’s actions and conduct in the commission of the foreign crimes. The Court further failed to compile these facts prohibiting a de novo review to assure correctness, all which denied petitioner procedural due process of law.
 
B.       Supporting Facts and Controlling Supreme Law
 
1.      The lower court’s denial is contrary to, and results from, an unreasonable determination of clearly established law as promulgated by the US Supreme Court; and is a product of an unreasonable determination of the facts. (See Court Opinion Appendix-A)
 
2.      The controlling US Supreme Court law is found in: Shepard v. United States, 544 US 13, 20-21 (2005) (statement of factual basis, transcript of plea colloquy or written plea agreement or comparable findings adopted by defendant constitute facts which a subsequent sentencing court can rely to increase a sentence); Fiore v. White, 531 US 225, 228-29 (2001) (proof of all elements of a crime must be established to incarcerate a defendant); Hicks v. Oklahoma, 447 US 343, 347 (1980) (state cannot deprive a petitioner of his liberty without due process of law); Burgett v. Texas, 389 US 109, 115 (1967) (the admission of a prior unconstitutional conviction for enhancement purposes is inherently prejudicial); Boykin v. Alabama, 395 US 238, 242-43 (1961) (guilty plea is invalid if defendant not appraised of true nature of offense); Henderson v. Morgan, 426 US 637, 644-45 (1076) and McCarthy v. United States, 394 US 459, 466 (1969( (no factual basis established invalidating guilty plea).
 
C.       Supporting Facts
 
1.      During sentencing petitioner objected to the trial court’s imposition of a three-strike sentence because: (i) no factual basis had been established for his Florida convictions or for the degree of his conduct during their commission; (ii) that the elements of Florida robbery statute FS §812.13 was not legally comparable to its Washington counterpart RCW 9A.56.190; (iii) the trial court was using the incorrect standard to validate the prior convictions; (iv) and the State’s sentencing expert could not authenticate the petitioner’s prior criminal history because he was unemployed and uncertified. (Appendix B 3/12/02 and Appendix C 2/22/02 Sentencing Hearing Transcripts – Attached)
 
2.      The prosecution prohibited the sentencing court from performing its mandatory duty to compare the elements of the Florida robbery convictions with the similar Washington statute. In fact, the prosecution went to the extent not to admit the Florida robbery statue so it could be “considered as evidence” now or on appeal. The court agreed with the prosecution’s request that:
 
The law is the law from the State of Florida and the Court can take determination of that without reference to the actual admission of the factual statutes. VRP 2/22/02 pp 26. (Appendix C Attached)
 
3.      The trial court denied all objects and failed to conduct the mandatory legal and factual (if need be) comparability analysis of the out-of-state Florida robbery convictions on the record. Further prejudicing the petitioner by these omissions was the fact that now the record would be silent and no de novo review could take place of the accuracy of this “finding” on appeal as required by law. These errors denied the petitioner procedural due process of law in violation of firmly established precedence as set forth in State v. Morley, 134 Wn. 2d 558, 606, 952 p. 2d 167 (1998( (sentencing court must compare out-of-state elements to the comparable Washington offenses and if elements are not identical court must review out-of-state conviction to determine if petitioner’s conduct violated comparable Washington offense); State v. Ford, 137 Wn. 2d 472, 481, 973, p. 2d 452 (1999( (fundamental principles of due process prohibit sentencing defendant based on facts unsupported in the record); State v. McCorkle, 137 Wn. 2d 490, 973 p. 2d 461 (1999) (proper form for classification of out-of-state convictions is at sentencing hearing where defendant can refute states evidence). [1]
 
4.      On collateral review the State Courts never adjudicated the petitioner’s Constitutional argument that he had been denied procedural Due Process of law in violation of the Fifth and Fourteenth Amendment, when the sentencing court failed to properly classify his prior Florida robbery convictions by comparing the out-of-state statutory elements with the comparable Washington counterparts on the record; determine if the Washington statute defines the offenses more narrowly than the foreign statue; or to review the record of the out-of-state convictions and determine if the petitioner’s conduct would have violated the comparable Washington offense. Accordingly, this claim should be reviewed de novo without deference to any state court decisions on any related issues. See Wiggins v. Smith, 538 US 510, 123 S. Ct. 2527, 2539-40 (2003) (state court should have made findings of fact but neglected to do so) and Pirtle v. Morgan, 313 F. 3d 1160, 1170 (9th Cir. 2002).
 
5.      On review the appellate court attempted to correct this mistake and perform a legal and factual comparability analysis from a non-existent or incomplete record, without giving the petitioner an opportunity to obtain testimony, further documentary evidence and supporting facts as initially mandated by statue and case law to show the non-comparability. See infra. ¶3 and Note 1. More importantly, on appeal the petitioner was not appointed an attorney who could easily obtain these things and present a persuasive argument. Accordingly, these factual findings are infected by substantial legal error and defective because they were made “without giving the petitioner an opportunity to present evidence,” which initially should have been allowed at sentencing. Petitioner is requesting a hearing to correct these deficiencies pursuant to Taylor v. Maddox, 366 F. 3d 992, 1001 (9th Cir. 2004).
 
6.      Further proof that the sentence was imposed in violation of standards of due process is found in a cursory review of the statutes involved. When interpreting statutes under statutory construction, first considered is the statute’s plain language. If the language is clear, it must be regarded as conclusive, absent a clearly expressed contrary legislative intent. Russello v. United States, 464 US 16, 12 (1983). Florida has defined the way its robbery statute is to be construed in Section §775.021(1), which provides as follows:
 
The provisions of the Code and offenses defined by other Statutes shall be strictly construed; when the language is susceptible to constructions, it shall be construed most favorably to the accused.
 
Florida “construes” its robbery statutes FS §812.13 as follows:
 
(1) Robbery means the taking of money or other property which may be the subject of larceny from the person or custody of another by force, violence, or putting in fear.
 
(2)(a) If in the course of committing the robbery the offender carried a firearm or other deadly weapon, then the robbery is a felony of the first degree, punishable by imprisonment for a term of years not exceeding life imprisonment . . .
 
Washington “construes” its robbery statute RCW 9A.56.190 as follows:
 
A person commits robbery when he unlawfully takes personal property from the person of another or in his presence against his will by the use or threatened use of immediate force violence, or putting in fear of injury to that person or of anyone Such force or fear must be used to obtain or retain possession of the property, or to prevent or overcome resistance to the taking; in either of which case the degree of force is immaterial.
 
7.      That Washington and Florida statutes do not share the same elements is found in the fact that the Florida statute does not contain the element of “immediacy” that is codified in its Washington counterpart. See State v. Gallaher, 24 Wn. App. 819, 604 p. 2d 185 (1979) (the definition of robbery requires that the threatened harm be in the immediate future, i.e., while the robbery is taking place). Id at 822.
 
8.      Washington’s Courts have recently reversed several three-strike cases based on the trial court’s failure to correctly factor in the lack of immediacy from the foreign statute. See, State v. Dukes, 2004 WL 370766 (Was. Div. I) (California state robbery charge); In re: Personal Restraint of Lavery, 154 Wn. 2d 249, 111 p. 3d 837 (2005) (federal bank robbery). See Appendix D, petitioner’s Amended and Corrected Motion to Modify pp. 7-10.
 
9.      That petitioner’s factual conduct as defined by the Commissioner by the statutory elements: “force, violence, assault or putting in fear,” do not compare to Washington’s statutory element of immediacy, is found by the fact that these same elements were found not to constitute immediacy in Dukes and Lavery.
 
10. Two recent cases further support the petitioner’s position. In State v. Thiefault, 160 Wn. 2d 409 (2007), counsel failed to ensure that the sentencing court conducted a factual analysis of the defendant’s conduct in the commission of his foreign conviction, and compare it with the Washington statute. The Washington Supreme Court found that this omission constituted ineffective assistance of counsel. As in Thiefault, the sentencing court also failed to conduct a factual analysis of the out-of-state prior conviction, and determine if the petitioner’s conduct matched the statutory definition of a Washington robbery.
 
11. In State v. Moncrief, 137 Wn. App. 729 (2007), the defendant stipulated to the facts during his guilty plea to his foreign conviction, and claimed on appeal that the sentencing court’s reliance on these stipulated facts violated the mandate of Blakely v. Washington, 542 US 296 (2004). The Appellate Court found Shepard v. United States, 544 US 13 (2005), controlling and held the sentencing court could consider “the statement of factual basis for the charge . . . shown by a transcript of the plea colloquy or by written plea agreement presented to the court, or by a record of comparable findings of fact adopted by the defendant upon entering the plea.” This is not possible to do in the petitioner’s case, because no factual basis was established for his conduct during the acceptance of his guilty plea; he only stipulated to the facts of the information. (See Appendix E, Plea Colloquy and Information)
 
12. On review the Commissioner attempted to correct this deficiency by comparing the elements of the Florida offense, “force, violence, assault, or putting in fear,” with this stipulation to the same statutory elements charged in the Information, and held: “even if robbery in Florida is not legally comparable to Washington robbery, McDonald committed a Washington robbery.” (See Appendix A, Court Order)
 
13. This “comparison” was a fundamental error and completely ignores the fact that: there is no element of immediacy codified in the Florida statute. (See ¶6 infra)
 
14. In light of the foregoing, the petitioner respectfully submits that he has been denied procedural due process of law in violation of his Fifth and Fourteenth Amendment right, when the sentencing court failed to perform the mandatory comparability analysis of his foreign convictions; and which are constitutionally infirm because no factual basis was established during the acceptance of his guilty plea. The petitioner is again requesting a hearing and the proper analysis, where the state will be confined to the existing record it filed during the original sentencing proceedings, and when it had an opportunity to respond to the petitioner’s specific objections, and failed to do so. Id. State v. Lopez, 147 Wn. 2d 515, 520-21, 55 p. 3d 609 (2002).
 
Respectfully Submitted,
 
 
                                                   ______________________________________
Steven Darby McDonald #703852, C-315
Monroe Correctional Complex/WSR
PO Box 777
Monroe, WA 98272
 
 
CERTIFICATE OF SERVICE
 
I, Steven Darby McDonald, do hereby certify that a true and correct copy of the foregoing has been mailed prepaid by US Postal Authorities to: Ronda Larson Assistant Attorney General, PO Box 40116, Olympia, WA 98504 on this 20th day of September 2007.
 
I declare under penalty of perjury that the foregoing is true and correct under the laws of the State of Washington.
 
 
Dated: 9/20/07                                          ______________________________________
                                                   Steven Darby McDonald #703852/C-315
                                                   Monroe Correctional Complex/WSR
                                                   PO Box 777 Monroe, WA 98272
 


[1] See also, State v. Thiefault, 160 Wn. 2d 409, 414 (courts conduct de novo review of a sentencing court’s decision to consider a prior conviction as a strike); In re: Cadwallader, 155 Wn. 2d 867, 876, 123 p. 3d 456 (2007) (where prior convictions are from another jurisdiction, the state bears the burden of proving the convictions are comparable to Washington crimes); State v. Labarera, 128 Wn. App. 343, 349, 15 p. 3d 1038 (2005) (if existence of prior out-of-state conviction is proved the sentencing court must properly classify them on the record by comparing the elements of the out-of-state offense with the elements of the arguably comparable Washington felony); State v. Cassel, 128 Wn. Ap. 481, 486, 115, p. 3d 1062 (2005) (trial court must perform comparability analysis of foreign convictions on the record at sentencing); State v. Beals, 100 Wn. App. 189, 196, 997 p. 2d 941 (2000) (proper forum for classification of out-of-state convictions is at the sentencing hearing).