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Abuse of Discretion - StevenDarbyMcdonald.com

 

 

THE HONORABLE JOHN C. COUGHENOUR DISTRICT JUDGE
THE HONORABLE JAMES P. DONOHUE MAGISTRATE JUDGE
 
 
 
 
 
 
 
 
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
 

STEVEN DARBY McDONALD,
 
                                                             Petitioner,
 
         vs.
 
DOUGLAS WADDINGTON,
 
                                                             Respondent.
 
CASE NO. C07-135-JCC-JPD
 
REQUEST FOR APPOINTMENT OF COUNSEL TO OBTAIN DOCUMENTS AND TESTIMONY TO FILE A LEGALLY SUFFICIENT REPLY TO THE MAGISTRATE’S REPORT AND RECOMMENDATION; AND REQUEST FOR AN EVIDENTIARY HEARING
 
Clerk: Please schedule immediately

 
 
COMES NOW the petitioner and respectfully requests that this Honorable Court order an evidentiary hearing and appoint counsel to obtain supporting documents and testimony. And thereafter, to file a legally sufficient reply to the Magistrate’s Report and Recommendation. [1]
 
This request is being made due to the complexity of the legal issues involved, and the inaccessibility of supporting documents that petitioner has tried to obtain for nearly five (5) years. Further, because the petitioner suffers from psychological instability and a deteriorating physical condition from advanced Hepatitis-C end-stage liver disease. These impediments consist of the following abnormalities:
 
APPENDIX-A     At arrest the petitioner was receiving one-hundred percent psychological disability payments from the Social Security Administration because he suffers from “organic mental disorders; affective disorders; mental retardation and autism; hyperactivity; difficulty concentrating or thinking.”
 
APPENDIX-B     The Washington State Department of Health found petitioner to be “chronically mentally ill,” and provided him one-hundred percent psychological disability payments.
 
APPENDIX-C     A six-hour psychological evaluation shows at times petitioner suffers from “psychotic delusions, is Bipolar and has ADHD.”
 
APPENDIX-D     Various DOC psychological evaluations show petitioner is classified as a SMI (Seriously Mentally Ill) inmate, with “psychotic and delusional thinking.” That he has a seizure disorder, and suffers from “hallucinations de-compensated mental condition, with multiple attempts at suicide.”
 
APPENDIX-E     MRI and CT SCANS of petitioner’s brain show that he has organic brain damage: “low attenuation area in the region of the left globus pallidus, and basal ganglia lacunar infractions.”
 
APPENDIX-F     Presently petitioner is diagnosed as suffering from: “organic mental disorders,” and is classified as a SMI (Seriously Mental Ill) inmate, January 2003 and again March 2006. (See update June 11, 2007)
 
APPENDIX-G    Petitioner’s abnormal physical condition consists of an elevated AFP (Alpha Feto Protein Tumor Marker of 17.7 (normal is 6). His blood Ammonia level is elevated causing massive headaches from his Stage-4 Hepatitis-C Necrosis and Stage-4 Portal Inflammation.
 
APPENDIX-H     Petitioner has Cirrhosis with Nodules (cancers) covering the surface of his liver.
 
Due to these psychological and physical impediments, petitioner has trouble comprehending complex legal issues, concentrating and focusing his mind, and accurately remembering events. It is especially difficult for him to understand the requirements of the newly enacted ADEPA compounded by the fact that some days he is unable to get out of bed due to his end-stage liver disease and all resulting symptoms. He constantly suffers from confusion and severe headaches due to abnormally high levels of blood ammonia and other elevated enzymes.
 
Because of these disabilities petitioner’s friend Roy Giles, M.D., contracted with legal assistance provider, Professional Business Associates in Seattle, Washington to provide him with the most current case laws that the prison does not have, securing documents, performing legal research, typing and filing his legal pleadings. Several months ago, Dr. Giles passed away, which has stopped the assistance the Professional Business Associates was providing. See Appendix-I
 
Throughout these proceedings petitioner properly requested an evidentiary hearing so the following supporting documents and testimony could further be developed. See, Estrada v. Scribner, 512 F.3d 1227, 1235-36 n.7 (9th Cir. 2008). Despite these attempts at trying to secure these things, he was denied or ignored; this proof he can no longer access because he has lost his financial support and because the very people who possess these documents ignore his requests or just fail to release them without comment. See list of attempts, APPENDIX J through U.
 
As disclosed below, these sought documents will conclusively support the claims alleged in the petition, and require relief if produced. Accordingly, petitioner is requesting an evidentiary hearing and the appointment of counsel to obtain these documents, and thereafter, to file a legally sufficient reply to the Attorney General’s Reply and the Magistrate’s Report and Recommendation.
 
1.           Certified Color Copy of Trial Exhibit #45 and Reconstructed Trial Testimony by Affidavit of John D. DeHaan, Ph.D.
 
By certified letter and formal motions petitioner attempted to obtain color copies of trial exhibit #45 that shows the motel room door had never been on fire. Petitioner’s arson expert, Dr. John DeHaan, requested to review this exhibit again to properly prepare a legally sufficient affidavit reconstructing his original trial testimony, that is now missing from the trial transcript, which was based entirely on the clarity of the wood grains at the base of the door where the paint had blistered from the heat generated from the burning door mat.
 
The Division One and the Skagit County Clerk have refused to allow petitioner to purchase a color copy of this public record, as defined under RCW 36.23.030 and RCW 36.23.076, to send Dr. DeHaan in California to evaluation. This act caused his fee to nearly double due to the new travel expenses of having to fly to Washington State to personally review the photograph. Without this critical piece of evidence to evaluate, no affidavit could be prepared. Dr. DeHaan then went on and prepared an affidavit attesting that his trial testimony concerning damage to the motel room door was no longer part of the trial record. Dr. DeHaan’s testimony concerning this subject is essential to support Habeas Grounds IV and V. (See APPENDIX J through M for Letters, Cost-Bills to Review Materials and Prepare Affidavit, and Affidavit of Missing Trial Testimony).
 
2.           Prior Employment History and all Benefits Provided State Informant Barry Campbell
 
Under RCW 42.17, Public Records Act, counsel and later petitioner attempted to obtain all suppressed undercover employment history and all compensation provided to State Informant Barry Campbell While working undercover for any police agency in the State of Washington during the time periods he provided inculpatory statements and trial testimony against petitioner. [2]
 
During trial, petitioner sought any discovery documents which contained this information under the normal rules of discovery. The court refused to order the State produce these documents and prohibited any questioning of Mr. Campbell whether or not he had been working undercover for any police agencies, or if he had received any type of benefits from then prosecutor, Corbin Volluz, in exchange for his testimony, 10/25/01 p.25-30; 1/3/02 p. 11-33 (EP 312-346); 1/24/02 p. 14-25 (EP 282-294).The State denied Mr. Campbell worked undercover for any other police agency once for the Skagit County Drug Task Force, 1/24/02 p. 12-25 (EP 282-294) as did Mr. Campbell. (EP 629-633).
 
The prosecutor at the time, Corbin Volluz, claimed that he “could not remember” the answers to any of these questions. (EP 622-628) The court then issued orders to prohibit petitioner from asking any questions concerning these issues, which it termed “collateral impeachment evidence.” (See Orders EP 397,400-401)
 
Many facts discovered show deception on both Mr. Campbell’s and the State’s part that required the need for more cross-examination to expose the true reasons for Mr. Campbell false testimony against the petitioner. [3] One such inconsistency is that Mr. Campbell admitted Officer Chad Clark arrested him and booked him into the Skagit County Jail close to the time petitioner was going to trial (EP 629-633). Officer Chad Clark admitted to arresting Mr. Campbell and booking him into the Skagit County Jail close to when petitioner was going to trial. (EP 636-637) Now, none of this information appears on the Skagit County Jail’s computer, and Officer Clark thinks the Skagit County Task Force erased it to sanitize Mr. Campbell’s image in the cases he was testifying in. (EP 637)
 
Petitioner needs this information he’s requested under RCW 42.17 to support Habeas Grounds III, Section (iv), ¶ 1 through 9. This information will conclusively establish a nexus between Mr. Campbell and the Skagit County Prosecutor, the benefits he received, and the full extent of his cooperation with various police agencies in the state: none of which the state claimed at trial had occurred.
 
That some of these things do in fact exist showing that Mr. Campbell and the prosecutor were being deceitful, is found by the fact that the Washington State Patrol and Sedro-Woolley Police Department recently admitted to having this information, but that a “hearing would have to be scheduled to release it.” (See Reply, Washington State Patrol December 6, 2002; Sedro-Woolley Police Department November 20, 2001 APPENDIX-S)
 
In light of these facts, it is obvious that these agencies are attempting to claim invalid exemptions to avoid releasing this information knowing that it will help the petitioner prove these issues. An in camera review of this material would satisfy these concerns.
 
3.                        Mount Vernon Police Department Policy and Procedure Manual
 
Petitioner requested select sections of the Mount Vernon Police Department Policy and Procedure Manual under RCW 42.17, now recodified as RCW 42.56, Public Records Act, October of 2001. No records were released. (APPENDIX-U) During trial petitioner requested this manual under normal discovery procedures and was denied by the trial court when it held that the manual contained “no relevant material.” No privilege or statutory exception was claimed to exist by the court in its order of denial. 10/18/01 p. 26 (See APPENDIX-Q)
 
The production of this material is essential and required to support Habeas Grounds II and III. It will conclusively show that the officers did not follow their own policy and procedure in conducting the investigation, and failed to do so to inculpate the petitioner. The trial court recognized the importance of this material to impeach these officers for not following established police procedures:
 
The investigating officers exceeded their own written policy manual in some way in the investigation . . . it would tend to support his position the officers in question did something that flies in the face of their own policy manual. 10/3/01 p. 18 (EP 817-836)
 
Despite the trial judge finding there was “nothing material” in this manual, there is no statutory privilege prohibiting petitioner form accessing it. In fact, just the opposite is true. RCW 42.56.070 allows the complete dissemination of this publication. And the amount of times petitioner has made a request for this material and it has been denied or ignored means Skagit County is hiding it because it does contain these facts.
 
Moreover, according to the Chief of Police it does contain a section on the proper procedures to follow when conducting identifications. (APPENDIX-O) According to the prosecutor, it does contain sections on (1) Proper investigation of Crime Scenes; (2) Proper Way to Conduct Fire and Arson Investigations; (3) and Proper Evidence Collection and Property Management of Evidence. 10/3/01 p. 22 (EP 812, 777). these are each of the sections petitioner requested to support his Habeas claims. (See February and March 2005 PDA Request filed by petitioner to Skagit County (APPENDIX-N). Again none of this requested information was sent for use in these proceedings.
 
Clearly these documents exist. That was why the Chief of Police said they did. And that was why the prosecutor said they did.
 
4.                        Officer Peter Lindberg and Detective Tobin Ruxton’s Internal Affairs Investigation Reports
 
Originally October 2001 petitioner filed a Public Records Act Request pursuant to 42.17, seeking disclosure of any investigations conducted against these officers by the Internal Affairs Unit of the City of Mount Vernon Police Department, from complaints filed by the public, by defendants or attorneys against these officers for using false inculpatory facts in their police reports. (APPENDIX-U) Skagit County never replied.
 
Through the normal discovery process during trial, petitioner attempted to obtain these records explaining to the court that they were needed to support his theory of defense, that he had been falsely accused of this crime so these officers could become the first officers in Skagit County to get a three-strike conviction.
 
Petitioner specifically requested only information filed by the public, criminal defendants or by lawyers, who claimed these officers used false inculpatory facts in their sworn affidavits, or took facts out of context, and used them in their affidavits and police reports. The court denied this request finding that there was “only a mere possibility that this information exists in these files,” and that is not strong enough proof just because they did it in petitioner’s case. 10/18/01 p. 18-21 (See APPENDIX-Z)
 
November 7, 2002 counsel filed again seeking this same evidence under RCW 42.17. (APPENDIX-R) Skagit County again refused to reply, later claiming they had no idea what happened. (APPENDIX_R Attorney-Client Letter dated February 14, 2005)
 
Petitioner again requested these records February 14, 2005 (APPENDIX-T) No records were provided by Skagit County so that they could be used in these proceedings. These records are vital and required to support Habeas Grounds II and III.
 
Despite diligently trying for the last 5 years, petitioner has been unable to access any supporting documents no matter how hard he has followed the rules and the procedures established to obtain them (See all attempts (APPENDIX J through U). When clearly it’s through the deliberate obfuscation of others who are responsible for causing this wrongful conviction, and who continue to maintain control over these records, that conclusively support his innocence.
 
Moreover, petitioner can hardly be expected to properly and competently follow the complex rules of the AEDPA and structure legally sufficient arguments in response to the Magistrate’s Report and Recommendation, when suffering from these documented medical conditions, supported by diagnostic testing procedures. (See Medical Records)
 
The Federal Judiciary is the final guardian of the rule of law. Petitioner respectfully requests that this Honorable Court use its equitable powers to correct this horrific injustice as shown to exist throughout the history of the case. The Petitioner has done everything humanly possible to properly obtain these documents, and has been stymied and frustrated at every turn by the very people whose duty it is to uphold the rule of law: not to suppress it in order to maintain a false appearance of correctness, as has taken place. [4]
 
In light of the foregoing reasons, and based on the following facts, petitioner respectfully requests the appointment of counsel under 28 U.S.C. 2254 (h), to assist in these proceedings, obtain legal documents and file a legally sufficient reply to the Magistrate’s Report and Recommendation.
 
GROUND-A THE PETITIONER HAS ALLEGED “GOOD CAUSE” AND ESTABLISHED A COLORABLE CLAIM FOR AN EVIDENTIARY HEARING TO ELICIT SUPPORT FOR HIS GROUNDS
 
A.                     The Applicant Has Not Failed To Develop A Factual Basis For His Grounds In State Court.
 
Petitioner should not be faulted for a “lack of diligence” in developing his Grounds in state court. The test for determining “diligence” is whether he “made a reasonable attempt, in light of the information available at the time, to investigate and pursue his claims in state court.” Williams v. Taylor, 529 U.S. 420, 432 (2000).
 
Petitioner has met his burden as shown below.
 
(i)                       Requests For Hearing In State Courts
 
At each state of the state proceedings, petitioner urged the court to grant him an evidentiary hearing to obtain supporting documents and was ignored. See Williams v. Taylor, 529 U.S. 420, 432 (2000) (diligence requires the prisoner at a minimum to seek a hearing in state court).
 
His attempts consisted of:
a.                         PRP Memorandum of Fact and Law, p. 2-3 states: Petitioner requests that this cause be remanded under option two for a plenary hearing based on the referenced Declarations and supporting exhibits.
b.                        Petitioner’s Reply to State’s Response to PRP, p. 10, 12, 15, 17, and 18, request a hearing.
c.                         Petitioner’s Request for Discretionary Review, p. 7, 10, 12, 14, and 10, request a hearing.
d.                        Motion to Modify, p. 1 requests a hearing.
 
(ii)                   Petitioner’s Actual Attempts To Obtain Evidence To Support Each Ground Raised
 
a.                       Petitioner Has Obtained Some Supporting Documents
 
Petitioner filed five supporting Appendix Sections totaling 840 exhibits, including Affidavits from his forensic defense expert, Dr. John DeHaan (EP 414; Curriculum Vitae EP 420-446); Investigator Kevin Steward, attesting to the truthfulness of his interviews with the state witnesses (EP 412-413; Interview Summaries EP 643-680); Roy Giles, M.D., from a related proceeding (EP 415-417); himself (EP 409-410); Investigator David Linth acknowledgement that his reports are “true and correct” (EP 411; Report from Barry Campbell EP 629-633; Karen Wilson EP 634-635; Deputy Chad Clark EP 636-637; Janet Gibbs EP 638-639; Sharon Prouty-Hall EP 640-641)
 
Also obtained by petitioner is a December 1, 2001 Affidavit from the original prosecutor, Corbin Volluz, alleging he cannot remember 80% of the questions asked, and his responses to the WSBA showing deception regarding questions concerning Mr. Campbell EP 452-458; Affidavit EP 622-628).
 
b.       Petitioner Has Tried To Obtain Documents And Has Been Ignored
 
Filed contemporaneously with this Request for an Evidentiary Hearing and Appendix, is a Request for the Appointment of Counsel, detailing the need for the appointment of an attorney to assist petitioner, and the steps he has undertaken trying to obtain vital supporting documents, and what they will support. These attempts include:
 
1.       Color photographs of the motel room door to send Dr. DeHaan for evaluation and to show the court that the door was never n fire. The state courts made their determination that the door was burning based on the victim’s testimony. However, Trial Exhibit #45 clearly shows that the door was never on fire, yet the state courts would not even look at it before making their unreasonable fact-finding determination.
2.       The undercover confidential informant history and all incentives provided to the informant Barry Campbell for his testimony against petitioner, and in other cases. All his requests have been ignored, even the requests that his counsel filed under RCW 42.17 seeking this information. See Request for Appointment of Counsel, p. 4-9. See the actual requests filed (EP 769-790; Argument in Court for Information EP 791-836)(Court prohibited the release, see Appendix-V)
3.       The Mount Vernon Police Department Policy Manual on the proper procedures officers are to follow to process arson evidence and crime scene investigation. See official requests filed under RCW 42.17 and argument in court (EP 769-790; EP 791-836) See Request for Appointment of Counsel for full explanation, including all post trial requests.
 
c.         Petitioner Has Attempted To Obtain Documents And Been Denied
 
1.       Requests For Color Photographs From Division One For Inclusion In PRP
 
Petitioner’s counsel attempted to obtain certified color photographs of trial exhibits 5, 6, 7, 45, 13-A and 14-A, specifically #45 showing how the motel room door appeared after it had been wiped clean of soot by the motel’s manager, Mrs. Stevens, the following day. Dr. DeHaan required these photographs to accurately reconstruct his missing trial testimony concerning if the door had been on fire. The sworn motion alleged:
 
Mr. McDonald is requesting the court to compel production of certified color copies of Exhibits 5, 6, 7, 45, 13-A and 14-A for Dr. DeHaan’s use, so that the can adequately investigate issues concerning Mr. McDonald’s innocence and the insufficiency of the evidence to convict for a potential PRP.
 
Initially the courts refused an oral request to release copies of these public records, see RCW 36.23.030; RCW 36.23.076, and February 26, 2004 denied the motion claiming if Dr. DeHaan wanted to inspect these photographs he had to do so in Seattle court chambers. (See Appendix-M) Dr. DeHaan was thereby precluded from making the necessary evaluations and preparing a legally sufficient affidavit attesting that the door had never been on fire for inclusion in petitioner’s state court PRP.
 
2.       Requests For Color Photographs From Skagit County Clerk For Inclusion In Petition For Writ Of Habeas Corpus
 
Petitioner next attempted to obtain color copies of these same exhibits from the Skagit County Court Clerk for review by Dr. DeHaan so he could prepare a legally sufficient affidavit concerning his missing trial testimony for inclusion in these proceedings. On November 16, 2006 the court clerk refused to provide color copies, only black and white, which are not acceptable for reconstructive analysis if the door had been on fire. (See Appendix-K and M)
 
3.       Prior Evaluation Of Photographs By Dr. DeHaan And New Affidavit
 
Without being able to review these photographs he initially reviewed before trial, (See August 2, 2004) Affidavit) Dr. DeHaan was unable to properly evaluate and reconstruct his original trial testimony and could only provide a general affidavit without specifics, since he had no point of reference, now attesting that all his trial testimony concerning the door was no longer part of the trial transcript: “I can find no mention of the questions that I recall being asked during the proceedings.” (See Appendix-M) [5]
 
Trial counsel’s June 2005 Affidavit (i.e., the petitioner) supports these contentions as well, that Dr. DeHaan attested the door had not been on fire, and his trial testimony was no longer part of the record. (EP 409-410)
 
Petitioner submits that he has fully met the due diligence requirement and has “made a reasonable attempt in light of the information available at the time, to investigate and pursue his claims in state court.” Id. Williams v. Taylor, 529 U.S. at 435.
 
B.                       Petitioner Has Shown Good Cause And The Evidence Of A Colorable Claim
 
In deciding whether to grant an evidentiary hearing, a federal court must consider whether such a hearing could enable an applicant to prove his factual allegations. Schriro v. Landrigan, 127 S.Ct 1933, 1940 (2007). With the production of the above documents, this can be accomplished. (See full argument in Request for Appointment of Counsel)
 
To date, the state court decisions have been based on outrageously unreasonable determinations of the facts. They claimed the motel room door had been on fire, without even reviewing trial exhibit #45 that clearly shows the door had never been on fire. And claimed “it didn’t matter” if his forensic expert’s testimony was no longer part of the record, or what he had testified to, the evidence was still sufficient to support the conviction under all 3 alternative means of RCW 9A.48.020(1)(a)(b)(c). They found the evidence sufficient without comment on any of the facts presented by petitioner showing it was not; and totally ignored facts in the record that supported petitioner did request the appointment of counsel several times; and performed a comparability analysis based on no facts, except the statutory definition.
 
Under Townsend v. Sain, 372 U.S. 298, 312-13 (1963), their holdings are incorrect because: (1) the facts are in dispute; (2) petitioner has alleged facts which if proven true would entitle him to relief; (3) the state factual determination is not fairly supported by the record as a whole; (4) and the state fact-finding process was not adequate to afford him a fair review.
 
Throughout this litigation petitioner has not been afforded the “benefit of any doubt” as required by the Ninth Circuit. See Brown v. Roe, 279 F.3d 742, 746 (9th Cir. 2002). A cursory review of his Grounds and the request he made for supporting documents under RCW 42.17 (See Appendix-R, U) which show “Good Cause” for the production of these documents.
 
Moreover, that the policy memorandums requested by petitioner do in fact exist, is found by the fact that the Chief of Police (Chief Barsness) told investigator Kevin Steward that they did during his interview summary (EP 777); and because the prosecutor at the time told the court that several existed during the hearing when the petitioner was requesting their release. See October 3, 2001 p. 3, 19, 22-23 (EP 793, 809-813). (See Objections to Denial October 18, 2001, p. 25-26 (EP 833-834)
 
The production of this information would conclusively support both Habeas Grounds II and III, showing that the officers failed to follow their very own policies to inculpate petitioner, by their failure to properly collect and process the arson evidence and conduct the entire investigation in accordance wit the established City of Mount Vernon Police Department Protocol. And further, they had feigned ignorance to petitioner’s questions during trial, contrary to policy, to hide the facts that they knew the answers to, as claimed in Ground-III. [6]
 
Petitioner has shown “Good Cause” that these things should be investigated and produced. “Good Cause” is defined as being “specific allegations that give a court reason to believe that the petitioner may, if the facts are fully developed, be able to demonstrate that he is . . . entitled to relief.” See Bracy v. Gramey, 520 U.S. 899, 908 (1997)
 
Finally, in Insyxiengmay v. Morgan, 403 F.3d 657 (9th Cir.205), the defendant and his counsel were prohibited by the court from accessing information they required from a confidential informant. (Just like petitioner was, in addition to a Police Policy Manual and Investigative Police Misconduct Files). The Ninth Circuit held that fault could not be attributed to either one because of the trial court’s limiting orders, and that they were entitled to a hearing on the information that the informant possessed and the court suppressed, because it had been “unreasonable” for the state court to assume the informant did not possess the information. Id at 665. Likewise in this case:
 
(i)                       It was “unreasonable” for the trial court to assume that the information in the City of Mt. Vernon Police Department Policy and Procedure Manual contained “nothing relevant to produce,” (10/18/01 p. 26 (EP 834)) when both the Chief of Police for the City of Mount Vernon and the prosecuting attorney stated that it did contain some of the policy sections that the petitioner was requesting (See EP 777; 10/3/01 p. 17-23; (EP 807-813));
(ii)                   It was “unreasonable” that the court held there was only “mere possibility” (10/19/01 p. 21 (EP 829)) that information existed in the internal affairs investigation files that Officer Lindberg and Detective Ruxton had on prior occasions fabricated false inculpatory facts in their police reports of other individuals whom they had arrested, as they admittedly did in the petitioner’s case. (See Ground-II p. 8-10 of TRAVERSE for complete listing of all admitted false facts);
(iii)                 It was “unreasonable” for the trial court to prohibit petitioner from inquiring into the nexus of the informant Mr. Campbell and the original prosecutor, and all the police agencies he was working undercover with. (See admission by Sedro-Woolley Police Department and Washington State Patrol (EP 788-790)).
 
The prejudice suffered by petitioner is clear, as he told the court at the time:
The last one is I can’t present a defense without the information since my theory of my defense is that the arresting officers did not follow established police protocol in order to set me up for this offense.
 
The last issue, the very last issue, I’m being denied my Sixth Amendment right to impeachment evidence to prove my theory of defense. When there is evidence in the record that both the officers drafted falsehoods in their police reports as even stated by the state’s own witnesses. Thank you. 10/18/01 p. 25-26. (EP 833-834)
 
In conclusion, petitioner has shown diligence in attempting to develop his claims at each stage in the proceedings, and the existence of the Townsend factors. His allegations amount to a colorable claim for relief, and accordingly, an evidentiary hearing should be held for each Ground on the authority of Insyxiengmay v. Morgan, 403 F.3d at 670 and Earp v. Ornoski, 431 F.3d 1158, 1169 (9th Cir. 2005)
 
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 18th day of March 2008.
 
I declare under penalty of perjury that the foregoing is true and correct under the laws of the State of Washington.
 
 
Dated: 3/18/08                                                                 ______________________________________
                                                                                  Steven Darby McDonald #703852/C-315
                                                                                  Monroe Correctional Complex/WSR
                                                                                  PO Box 777 Monroe, WA 98272


[1] Appendices A through X attached are consolidated from the file (excluding medical records) for quick review. Exhibits designated (EP) followed by a page number refer to the original five filed supporting Appendix Sections. VRP designated pages are to trial transcripts. Pre and Post trial hearings are designated by date of occurrence.
[2] Counsel’s initial request filed November 7, 2002 was totally ignored by Skagit County. See Attorney-Client letter dated February 18, 2005 (APPENDIX-R) No records were provided in response to petitioner’s February 14, 2005 request. (APPENDIX-T) No records were provided in response to petitioner’s original October 2001 request. (APPENDIX-U)
[3] Gas station attendant Lester McFarland and Richard Thuran viewed the photomontage containing Mr. Campbell’s photograph and neither identified him as being the cab driver who drove the perpetrator (alleged to be petitioner) to the gas station to purchase the gasoline February 4, 1996. (EP 567-568 Police Reports)
[4] A more relaxed standard of review should be applied to pro se litigants, with the prisoner receiving “the benefit of any doubt.” See Brown v. Roe, 279 F.3d 742, 746 (9th Cir. 2002). This standard should be applied in this case due to the obstacles that this petitioner has had to endure. See Haines v. Kerner, 404 U.S. 519 (1972).
[5] Thomas Verge and Eric Pederson, both Chief Deputy Prosecuting Attorneys in Skagit County, prosecuted the pro se petitioner. The prosecution was under immense pressure to obtain a reconviction. The prosecutors were incensed after learning petitioner’s conviction had been reversed 9-0, and were quoted in the press as saying the evidence was not tainted, and that the Washington Supreme Court was out of touch with the reality of a trial in a real life setting. To avoid any potential of the possibility of another reversal on appeal, they simply removed dr. DeHaan’s trial testimony attesting the door had not been on fire, negating the proper presentation of the insufficiency of the evidence under RCW 9A.48.020(a), that the fire was manifestly dangerous to any human life; and (c), that it occurred in any building. Dr. DeHaan’s August 2, 2004 Affidavit clearly attests to his missing trial testimony, and by implication, that the evidence is not tainted. (See Appendix-W Newspaper Articles filed as Appendix-A in Division One to support his PRP)
 
[6] Proof also exists to support Ground-III about the fact that informant Campbell and prosecutor Volluz were working together to falsely inculpate the petitioner by returning several thousand dollars in forfeited bond money Mr. Campbell lost when he failed to show up for court (EP 543-555). Prosecutor Volluz claimed he could not remember 80% of these facts and involvement with informant Campbell, including the assistance he personally provided. (EP 622-628). Informant Campbell’s responses were just as deceptive. (EP 629-633). Deputy Chad Clark insisted he arrested informant Campbell and booked him into the Skagit County Jail at the end of September, close to the time of petitioner’s jury trial. Mr. Campbell admitted being arrested and booked too. Now, none of this information appears on the computer. Deputy Clark stated he felt that the Drug Task Force heard of the arrest and erased this information from the computer to sanitize Mr. Campbell’s image. (EP 452-458). The trial court ruled that none of this information could be inquired into or brought out before the jury to establish motive or credibility. Petitioner strenuously objected during the January 3, 2002 hearing (EP 312-346) and January 24, 2002 hearing (EP 271-304), and was overruled. See Appendix-X for issues presented on appeal. See PRP for collateral issue p. 13-22, 8-36.