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Abuse of Discretion - StevenDarbyMcdonald.com

 

 

THE HONORABLE JOHN C. COUGHENOUR DISTRICT JUDGE
THE HONORABLE BRIAN A. TSUCHDIA 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
 
PETITIONER’S OBJECTION TO THE MAGISTRATE’S REPORT AND RECOMMENDATION ISSUED ON NOVEMBER 6, 2008
 
Clerk: Please Schedule Immediately for December ____, 2008
 

 
 
COMES NOW the petitioner and files this Objection to the Magistrate’s Report and Recommendation and failure to consider ancillary support pleadings.[1][i]
 
GROUND-A
 
PETITIONER HAS SHOWN THE NEED FOR THE APPOINTMENT
OF COUNSEL AND FOR AN EVIDENTIARY HEARING
 
1.       Petitioner requested the appointment of counsel to obtain evidentiary facts, with a full Appendix Section and three (3) supporting Declarations outlining the reasons why, and all his attempts at obtaining this supporting evidence. See Docket Sheet #40-43. He also requested counsel’s assistance in filing a reply to this Recommendation, due to the complexity of the issues involved.
 
2.       Petitioner was restricted in investigating the most critical piece of evidence, the motel room door, and any surface damage that occurred, repeatedly denying his defense motions requesting the appointment of an arson investigator to do so. (EP 406-408 Order of Denial)
 
3.       Now the petitioner is permanently prejudiced by the loss of this opportunity to evaluate what really occurred to the surface of the door, consistent with the state’s expert who attested that it was only “beginning to burn.” VRP 518. Compared to the “victim” Mrs. Clarke, whose trial testimony was that half the door was on fire. Beginning to burn is not synonymous with being on fire, which is a requisite element of first degree arson. Mrs. Clarke and her trial testimony were anything but credible.[2]
 
4.       Later the trial court issued limiting orders prohibiting the jury from hearing vital exculpatory evidence bearing on the witnesses’ credibility and prohibited petitioner from investigating vital exculpatory evidence and presenting his defense.
 
5.       The reasons for the suppression of this information from the fact finder is because the justices in the State of Washington are instructed at yearly judicial conferences held in Wenatchee, Washington, by judicial instructor Mr. Whitebread, that “prisoners” are entitle to only two rights under the Constitution, the right to go to jail and the right to stay there until their term is up.[3]
 
6.       Petitioner asks that this Honorable Court not continue and impose this abhorrent standard on him as has occurred time and time again throughout the history of this case. And appoint counsel to expose it.
 
7.       The Honorable Michael Moynihan spilled the beans when laying down the skinny in open court during petitioner’s first jury trial, on exactly how the plebeian is to be treated in Washington State by the Judiciary during trial, and did so when denying petitioner’s pro se motion to discharge attorney Gary Gear[4] who he was suing for leaking defense strategies to the prosecution:
 
We just finished a great judge’s conference over in Wenatchee and Mr. Whitebread, if you have ever had the opportunity to hear Mr. Whitebread talk about the Constitution, prisoner’s now have two rights, the right to go to jail and the right to stay there until their term is up. (EP 369) [5]
 
8.       This abhorrent Constitutional standard is not formally reduced to writing, least to alert the public what the Washington State Judiciary is really doing behind closed doors, or to be officially challenged. But is an esoteric concept practiced and instructed in secret, and applied without the appearance that it is being applied. The following acts constitute proof positive of the application of this doctrine in this case:
 
(i)                       APPLICATIONS OF WHITEBREAD DOCTRINE TO CAUSE WRONGFUL CONVICTION
 
a.         State witness gas station attendant Lester McFarland stated he saw the person who purchased the gasoline twice, face-to-face, under bright quartz lighting for about 10 minutes, and that he had cut and bleeding knuckles, VRP 888, 893, 896-898. Petitioner was arrested one hour later and according to Officer Lindberg who swabbed his hands for petroleum products, “had no injuries on your hands.” VRP 199-200. The court ignored the implications of this fact.
 
b.       Officer Lindberg met with State witness Richard Thuran and picked up his Sworn Police Statement attesting that the person who purchased the gasoline had “blond hair.”Petitioner attempted to introduce this sworn document into evidence and the discussions they had but was prohibited by the court so that the jury would not learn the accurate description of the perpetrator did not match the petitioner’s. VRP 201-205.
 
c.         Detective Tobin Ruxton showed state witness gas station attendant Richard Thuran petitioner’s photograph, and who did not make an identification. The trial court prohibited the jury from learning this vital fact. VRP 673-682.
 
d.       Detective Ruxton displayed photomontages of petitioner and informant Barry Campbell to gas station attendants Lester McFarland and Richard Thuran three (3) months after the incident. Neither made identifications. (Police Reports EP 567-568; VRP 681-682, VRP 804-806) Detective Ruxton then waited seven (7) months to show informant Campbell and cab driver Gerald Hackley petitioner’s photograph. This inordinate delay cannot be in accordance with standard police procedure, and could only cause misidentification. His response: “I had to do it sometime.” VRP 814-815. The court held this was normal police procedure.
 
e.         According to state witness cab driver Dorothy Evans, petitioner was nicely dressed, had no facial hair, was tall, clean cut, with very short hair, well kept. The perpetrator was described as scruffily dressed, facial hair, blond hair to his collar, early 20’s (petitioner was 42) with cut and bleeding knuckles. Petitioner had no injuries when arrested one hour later. VRP 811-824. Detective Ruxton characterized these differences as “a certain amount of nuances.” VRP 823. The court held this was normal police procedure.
 
f.         Petitioner’s forensic expert John D. DeHaan, Ph.D., FABC, CFI. FSSDip, whose Curriculum Vitae resembles a small novel, (EP 420-446) attested by sworn affidavit that his trial testimony was no longer part of the record on appeal, the part concerning the extent of damage to the surface of the door, and whether or not it had been on fire. (EP 414) The court held that this does not matter, ignoring the overall implications of exactly why it is missing. (See defenses alleged by petitioner and missing documents in Request for Appointment of Counsel filed contemporaneously with this Objection, Appendix Sections I through U)
 
g.       Detective Tobin Ruxton’s February 6, 1996 Sworn Affidavit of Probable Cause, state’s petitioner had a confrontation with Mrs. Clarke due to a noise complaint at 1:30 a.m., where she became “frightened of his early morning contact.” (EP 582) According to Mrs. Clarke, this confrontation never took place. VRP 80-81 the courts held this was only a “mistake”.
 
h.       Detective Tobin Ruxton’s February 6, 1996 Sworn Affidavit states that petitioner made a noise complaint against Mrs. Clarke at 11 p.m. (EP 585) According to Mrs. Clarke, this confrontation never took place. VRP 80-81. The courts held that this was only a “mistake”.
 
i.          Detective Tobin Ruxton waited 2 months to send the alleged gasoline arson evidence to the Marysville Crime Laboratory for analysis. His reason: “I have no explanation.” VRP 742-743. The court held that this delay was “beneficial to the petitioner.”
 
j.          Petitioner requested a color copy of trial exhibit #45 by formal motion filed before Division One. (EP 460-467) The court refused to release a color copy of this public record. (EP 389) He next requested a color copy of trial exhibit #45 from the Skagit County Court Clerk. They refused to release a color copy. Petitioner was unable to send his defense expert Dr. John DeHaan a color copy so he could prepare an affidavit attesting that he motel room door had not been on fire, since the wooden surface does not disclose any charring burnt material. (See Appendix Sections J-K and M, Requests and Denials) The state courts then blamed him for not providing a legally sufficient affidavit detailing exactly what testimony was missing from the record on appeal.
 
k.       During the Motion to Dismiss or Suppress the alleged gasoline vapors on petitioner, his clothing items, and inside his room, the State and Court agreed that:
 
In other words, they [Officer Lindberg and Detective Ruxton] didn’t actually know what it had on it [gasoline on all the items], so it doesn’t fall under the exculpatory standard, no showing by the defense of bad faith with respect to the preservation of these particular items. 8/29/01 p. 65-71.
 
This “assessment” ignores the fact that in each of these officer’s sworn affidavits or police reports, they categorically state that they immediately recognized that these items had “some type of petroleum or gasoline products on them.” (EP 581, 583, 586-587, 591) Yet the court did not acknowledge this facially evident fact under the auspices of the Whitebread Doctrine of Law, two constitutional rights principle.
 
l.          Arson Investigator Mark Malone and Fire Chief Dennis Hofstead both went inside petitioner’s motel room searching for collateral fires with the petitioner’s permission before his arrest. VRP 944 Officer Lindberg then ran over and asked them to immediately leave, and sent them on superficial errands not in accordance with their official job descriptions, ostensibly because “I didn’t want them to contaminate the crime scene.” VRP 192. While in petitioner’s room, neither smelled the odor of gasoline vapors or smelled gasoline on petitioner. VRP 556, 738 Officer Lindberg then went back inside the room and allegedly smelled gasoline on the petitioner and all over inside his room causing him to arrest the petitioner. Yet he never mentioned this critical fact to either of the on-scene fire officials. Or, asked either to verify his alleged suspicions, or collect this special type evidence, so they could include this important information in their official reports of the incident. Embracing the principles of the Whitebread Doctrine, the courts have held that these facts “benefited” the petitioner?
 
m.    Detective Tobin Ruxton followed the exact same course of action. He too suppressed his alleged “discovery” of gasoline vapors from these on-scene professionals, not advising either or asking for their intervention to assist in collecting or verifying its existence. (Alleging at trial he had no arson training or experience in his19 years as being a police officer) The courts held that this is normal police procedure.
 
n.       Detective Tobin Ruxton attempted to have witness Roy Giles M.D., file false criminal charges against petitioner for the theft of his firearm. Dr. Giles refused to do so, and testified concerning these facts. VRP 910-912. The courts held this did not matter.
 
o.       Bank of America President Sharon Prouty-Hall, informant Barry Campbell’s ex-wife, came to court and attested that Mr. Campbell was a liar, thief and drug addict, who stole from her and did drugs in front of his daughter. That from her personal experience living with him, that his reputation in the community was poor. (EP 89-96 Testimony; EP 640-641 Interview Summary) The court refused to allow the jury to hear these true facts which prejudiced the petitioner’s defense.
 
p.       Informant Barry Campbell admitted to being arrested by Officer Chad Clark close to the time petitioner was going to trial.(EP629-633) Officer Clark admitted arresting informant Campbell about the same time that the petitioner’s trial was taking place in 1996, and booking him into the Skagit County Jail for an outstanding warrant. Now his arrest, his booking and the outstanding warrant have all disappeared from the jail’s computer. Officer Clark thinks that the Skagit County Drug Task Force removed this information to sanitize informant Campbell’s image as a confidential informant. (EP 312-346; EP 636-737) The trial court refused to allow the petitioner an opportunity to question informant Campbell under oath during trial about these facts, or any personal incentives he may have received, return of $2,000, release from jail, reduction of charges or not filing charges, for his testimony against the petitioner. (EP 271-304; EP 312-346) VRP 1/24/02 p. 1-35; VRP 1/3/02 p. 9-43. The courts have held that this is standard procedure.
 
9.       Because of these things, the facts as set forth in the Request for Evidentiary Hearing and Appointment of Counsel DK #40, should be viewed in a different light. (See Request attached as Appendix-A)
 
10. The newly sought facts from the Evidentiary Hearing will produce information more reliable and probative than initially produced by petitioner, as he was stymied and frustrated at every turn by the very people whose job it is to ensure that justice has been served, by their failure to release the sought information and specifically a color copy of trial exhibit No #45 showing that the motel room door had not been on fire. See Griffin v. Johnson, 350 F.3d 956, 966 (9th Cir. 2003).
 
11. A new Affidavit from Dr. DeHaan will be of material benefit because he will now be attesting that the motel room door had not burned, and why it had not burned, and what his original testimony was that has been removed from the VRP’s. Without this court ordering the release of this photograph, and arranging for his testimony, this will never be accomplished, as the State has ensured by its failure to release same to date.
 
12. The Magistrate also erred in his August 1, 2008 Order of Denial of petitioner’s request for the appointment of counsel, an evidentiary hearing to collect further supportive evidence, and refusal to allow the amendment of Ground-VI to the petition, because of petitioner’s alleged incompetency, when he prohibited the further development of a factual record to support these claims. Id. Contrary to Laws v. Lamarque, 351 F.3d 919, 922 (9th Cir. 2003) and Allen v. Calderon, 408 F.3d 1150, 1153 (9th.Cir. 2005).
 
13. Petitioner had claimed that he had been mentally incompetent on several occasions throughout the course of this litigation, and supported these facts with three (3) Declarations, two from inmates who attested that they had done some of the litigation and petitioner’s abnormal demeanor. Along with over 50 pages of current and prior psychological histories, abnormal CT scans and MRI’s, all attesting to “Organic Brain Damage . . . Chronically Mentally Ill . . . Seriously Mentally Ill Offender.” See Appendix Sections A through L, Request for counsel DK #40-43.
 
14. “Mental incompetency is a condition that is an extraordinary circumstance beyond the prisoner’s control that justifies equitable tolling,” that was ignored by the Magistrate. See Laws, 351 F.3d at 923. In fact, the Magistrate failed to even mention any of these proofs. Further when applying the State of Washington’s Whitebread Doctrine of Law, the Magistrate totally ignored the mandate set forth in Allen, that:
 
All of petitioner’s claims of mental and physical instability have gone unrebutted by the State, requiring the District Court to consider them as true in deciding to dismiss his motion.
 
Allen, 408 F.3d at 1152. Yet the court failed to consider as true petitioner’s claims of incompetency and the need for a hearing and the appointment of counsel to support them. See Allen, 408 F.3d at1153 (Fed. R.Civ.P.17(c) applies to habeas petitioners).
 
GROUND-B
 
THE MAGISTRATE FAILED TO PROPERLY APPLY THE AEDPA’S §2254(d)(1) TO GROUNDS I THROUGH VI IN LIGHT OF THE NINTH CIRCUIT’S HOLDING IN FRANTZ V. HAZEY, 513 F.3d 1002 (9th Cir. 2008)
 
B(i)       Additional Reasons That Counsel Should Be Appointed Because Of The Complexity Of The Ever-Changing AEDPA’s Interpretation
 
1.       At the inception of these proceedings, petitioner set forth violations of Federal Constitutional Law, requiring that the State Courts evaluate the legal and factual allegations of Ground-I through Ground-VI based on the Constitutional violations of:
 
GROUND -I   Violations of the Sixth Amendment right to the appointment of counsel and whether a voluntary waiver of his Constitutional right to the appointment of counsel took place under the circumstances;
 
GROUND -II Violations of the Fifth and Fourteenth Amendment right to Due Process of Law by the State’s admitted destruction of material exculpatory evidence and/or the bad faith destruction of potentially useful evidence;
 
GROUND-III Violations of the Sixth Amendment right to effectively cross examine witnesses: (i) Kevin Stewards; (ii) Officer Peter Lindberg; (iii) Detective Tobin Ruxton; and (iv) Informant Barry Campbell, to present a complete defense;
 
GROUND-IV Violations of the Fifth and Fourteenth Amendment right to Due Process of Law when being prohibited in presenting the insufficiency of the evidence under RCW 9A.48.020(1)(a)(b)(c), on direct appeal because defense expert Dr. John D. DeHaan’s trial testimony was removed from the record on appeal;
 
GROUND-V   Violations of the Fifth and Fourteenth Amendment right to Due Process of Law because insufficient evidence exists to support the conviction on each of the three (3) alternative means charged under RCW 9A.48.020(1)(a)(b)(c); and,
 
GROUND-VI                 Violations of the Fifth and Fourteenth Amendment right to procedural Due Process of Law when the sentencing court failed to conduct the mandatory comparability analysis of petitioner’s foreign robbery convictions under RCW 9.94A.525(3), former RCW 9.94A.360(3).
 
2.       The State Courts rejected these federal Constitutional challenges without articulating any basis in federal law for doing so, despite each being raised based on specific violations. Because of this, the Magistrate was required to conduct an independent review of the entire record and applicable law without deference to the state court reasoning, to determine whether the state court decision was contrary to federal law, unreasonably applied clearly established law, or was based on an unreasonable determination of the facts in light of the evidence presented, as stated by the court in Stewart v. Erwin, 503 F.3d 488, 495 (6th Cir. 2007):
 
In this case, when the Ohio Court of Appeals rejected Stewart’s federal due process challenge, it did not articulate a basis in federal law for doing so. Instead, it cited only an Ohio statute permitting a trial court to withhold victim impact statements at its discretion, as well as two state cases applying this statue, without any discussion of any possible federal constitutional questions. Under Harris then, deference is owed only to the result reached by the Ohio Court of Appeals, and not its reasoning, and this court must conduct an independent review of the record and the law to determine whether the state court’s ruling comports with the requirements of §2254(d).
 
Compare, Lambert v. Blodgett, 393 F.3d 943, 969 n.15 (9th Cir. 2004), and now, Frantz v. Hazey, 513 F.3d 1002, 1011 n. 12 (9th Cir. 2008).
 
3.       The recent case of Frantz v. Hazey, 513 F.3d 1002 (9th Cir. 2008) (en banc), both illuminates this distinction and confounds it, leaving petitioner at a disadvantage as he has absolutely no idea whatsoever how to apply it to his facts when pleading his arguments before this court.
 
4.       Its importance and logic are essential to properly understand how to present his Grounds before this court. The complexity of this new holding exceeds his abilities, and probably many lawyers’ too, and requires the appointment of counsel for the proper presentation of this cause under this new criteria set forth by the Ninth Circuit.
 
5.       Petitioner’s Ground-I is identical to Frantz because the State Appellate Court wrongly applied the prejudice standard in their evaluation of the denial of counsel claim; same as the State Court’s did in the petitioner’s case:
 
By inquiring into prejudicial effect, the Arizona Court of Appeals conducted harmless error review of Frantz’s McKaskle claim. But contrary to the state court’s assumption, Supreme Court case law establishes unequivocally that a violation of the right to self-representation recognized in Faretta v. California, 422 U.S. 806 (1975), is structural and not susceptible to harmless error review . . . see generally United States v. Gonzalez, 548 U.S. 140, 126 S. Ct. 2557, 2564 (2006) (surveying constitutional errors characterized as structural and not subject to harmless error analysis). Because the Arizona Court of Appeals applied a rule that contradicts the governing law set forth in Supreme Court cases, Price, 538 U.S. at 640, the §2254(d)(1) standard for the grant of habeas corpus relief is satisfied. (Emphasis added) Frantz, 513 F.3d at 1012.
 
6.       The state courts have done the same thing in petitioner’s case, rendering it too “contrary to Supreme Court authority”:
 
At no time was McDonald forced to choose between incompetent or unqualified counsel and self-representation. At every juncture, when asked about continuing to represent himself, he unequivocally chose to proceed pro se. McDonald fails to establish any prejudice.
 
Slip Op p. 7. (EP 388) Moreover, petitioner pointed this error out on review to the Washington State Supreme Court, who ignored it:
 
The appellate court also erred in ruling that McDonald fails to establish any prejudice on this claim. Opinion p. 17. Controlling authority actually holds that no prejudice needs to be shown to prevail on a claim of the denial of counsel.
 
Petition for Review to Washington Supreme Court, p. 22-24. (Attached hereto as Appendix-B)
 
7.       Additionally, the State Court further erred by failing to discuss and adjudicate any of his Constitutional Legal Arguments set forth in support of this Ground, as well as in support for his other five (5) Grounds. See Slip Op p. 1-7 (EP 371-388), which he too pointed out:
 
The Appellate Court rejected the factual basis for his claims without discussing any of his legal arguments.
 
See Appendix-B attached. [6] (See Petition for Review p. 22)
 
8.       According to Frantz, these errors now “leave a dispositive Constitutional issue undecided.” And no way to determine if a “mistake in reasoning or predicate decisions” was made. See Frantz, 513 F.3d at 1010.
 
9.       The Court continued to discuss a “two stage process” that may sometimes have to be conducted, but failed to mention what to do when no decision at all was reached by the state courts on a petitioner’s case for each of his Six Grounds for relief.
 
10. In conclusion, the Ninth Circuit en banc held where a §2254(d)(1) error exists, as claimed in Ground-I of the petitioner’s case, the District Court is supposed to “analyze the state court’s actual reasoning to the extent that the Supreme Court has dictated how a state court’s reasoning should proceed.” This evaluation did not occur by any of the state courts on any of the petition’s Federal Constitutional Grounds. So now how can such a review take place by this court on review?
 
11. Moreover, now how should the petitioner plead his case to meet this deficiency? He cannot comprehend the logic of these newly enacted complicated issues, nor probably can may lawyers, and thus requires the appointment of counsel to do so.
 
12. The Frantz court then further concluded that “instead, pursuant to §2254(a) and Pre-AEDPA standards of review, we must also evaluate de novo the petitioner’s Constitutional claims without limiting ourselves to the reasoning of the state court.” Frantz, 513 F.3d at 1016.
 
13. The Magistrate did not perform this analysis on any of the Grounds raised by petitioner. And failed to properly adjudicate Ground-I, because the state court admittedly applied the harmless error analysis to this Ground, contrary to Frantz, in their decision-making process. A rule that the United States Supreme Court specifically states does not apply in this type of error analysis. Frantz, 513 F.3d at 1012.
 
GROUND-I
 
THE RECORD DISCLOSES THAT PETITIONER REQUESTED THE APPOINTMENT OF COUNSEL FOR TRIAL, HE WAS PROHIBITED IN SEEKING COUNSEL OF HIS CHOICE, THE TRIAL COURT ATTEMPTED TO AGAIN FORCE THE REAPPOINTMENT OF CONFLICT COUNSEL GARY GAER ALL OF WHICH CAUSED HIM TO INVOLUNTARILY WAIVE COUNSEL
 
A.                     The Magistrate Misconstrued the Legal and the Factual Issues of This Claim
 
(ii)                   Petitioner’s Arguments Showing Error Were Not Properly Considered by the Magistrate and the State Courts
 
1.                        The State Courts erroneously misstated the accurate facts when they made the following legal and factual findings with respect to petitioner’s requests for the appointment of counsel:
 
(i)                       McDonald did not assert to the Court that he wished to obtain an attorney, or that he did not want to continue representing himself. Slip Op p.6.
 
(ii)                   At no time was McDonald forced to choose between incompetent or unqualified counsel and self-representation. At every juncture when asked about continuing to represent himself, he unequivocally chose to proceed pro se. McDonald fails to establish any prejudice. Slip Op p.7.[7]
 
2.                        Contrary to the Court’s rulings, the Sixth Amendment guarantees a criminal defendant “the right to counsel at all critical stages of the criminal process.” “Trial is such a stage.” Iowa v. Tovar, 541 U.S. 85, 88 (2004).
 
3.                        The trial court attempted to force the reappointment of initial conflict attorney, Gary Gaer, who refused on the record to accept the reappointment because: “I will no longer be able to represent you. That may be for the best, because if the Court did appoint me, the prosecutor would appeal that decision. Who knows what would happen.” 9/19/01 p. 36.
 
4.                        Petitioner informed the court that he wanted the appointment of counsel for trial, and that he thought it was a much better decision, but not the reappointment of Mr. Gaer after everything that had happened: “Oh, I think so too. Uh-huh . . . Well, not Mr. Gaer after what he said here.” (His refusal to represent the petitioner) 10/4/01 p. 9-10. The Court ignored these reasons and attempted to again force the reappointment of Mr. Gaer:
 
THE COURT: It’s a little confusing, but here are your options. You can have an attorney who represents you, full-blown counsel. Right now. Or you can continue to represent yourself. Those are the options. And it’s up to you.
 
5.                        Petitioner refused the forced appointment, and was then required to waive his constitutional rights to the appointment of counsel. Because of this his waiver was not a “voluntary, intelligent knowing act.” See Iowa, 541 U.S. at 88, citing Johnson v. Zerbst, 304 U.S. 458, 464 (1938). Done to avoid the reappointment of the same attorney whose initial appointment was found to constitute a conflict of interest by the Washington Supreme Court, requiring the reversal of his conviction. See State v. McDonald, 143 Wn. 2d 506, 22 P.2d 791 (2001).
 
6.                        Petitioner unequivocally requested counsel “for trial . . . but not Mr. Gaer.” 9/19/01 p. 38; 10/3/01 p. 63, 66; 10/4/01 p. 2, 8, 9. He was “forced” by the court to waive counsel, the only attorney the court would appoint. It was an “unreasonable determination of the facts” for the courts to find that: “McDonald did not assert to the Court that he wished to obtain an attorney, or that he did not want to continue representing himself,” when he had. Slip Op p. 6. See Taylor v. Maddox, 366 F.3d 99, 1000 (9th Cir. 2004) (state courts should have made findings of fact but neglected to do so. No presumption of correctness attaches.)
 
7.                        Petitioner was prohibited also from seeking and contacting an attorney of his choice, as the court Ordered that he could, violating his constitutional right under Flanagan v. United States, 465 U.S. 259, 267-68 (1984) and United States v. Gonzalez-Lopez, 126 S.Ct. 2557, 2564 (2006) (no prejudice need be shown in evaluating claim) (See Frantz, supra)
 
8.                        Petitioner was taking steps to locate other attorneys to represent him in these proceedings. He was litigating a Habeas Corpus in the Western District trying to get these charges dismissed. (EP 398). He had been visited by attorneys Amy Tasi and Antonio Salazar at the jail discussing representation. He was writing Columbia Legal Services, the American Civil Liberties Union and other legal service providers seeking representation on his civil claims against the jail, and for criminal assistance. The Court blocked his use of public funds to contact these organizations, and then October 18, 2001 reversed itself after a letter form the Honorable Marsha J. Peckman to his then judge, John Meyer. During the hearing that followed he clearly authorized him access to “contact private attorneys” to seek possible representation in his criminal case:
 
THE COURT:                 The Order that I entered on September 20, 2001 should be modified to specifically name those other organizations or classes of people such as witnesses or experts and liberally construing the concept of access to justice. I believe that Mr. Pederson, particularly in view of the authorities that I have had a chance to read since I entered this Order, I think Mr. McDonald should be able to contact these people utilizing public funds. (i.e. Private attorneys, A.C.L.U., Columbia Legal Services, Washington Protection and Advocacy Systems). So I’m going to ask the State to draft a new Order which would modify and clarify that Order inserted on September 20, 2001. 10/18/01 p. 10.
 
9.                        Behind everyone’s back however, the prosecutor altered the Court’s oral directive allowing the petitioner to be able to contact “private attorneys at state expense” while trying to obtain legal assistance in his criminal case, and drafted the Order to specifically prohibit such communications. He slid it before the Court and had it signed without it first being read by the Court or the defendant. See October 26, 2001 Order, p. 4 “Copy Received, Notice of Presentment Waived: Steven Darby McDonald.” (See Appendix Section C attached hereto; October 22, 2001 Letter from Defendant Concerning Whereabouts of Order; October 9, 2001 Letter from the Honorable Marsha J. Pechman to the Honorable John M. Meyer)
 
10.                  As soon as petitioner realized what the prosecutor had done, he notified the court by formal motion and letter complaints, none of which were addressed. He may not have had a constitutional right to contact private attorneys at state expense, but clearly the Court Ordered such at the October 18, 2001 hearing, and the prosecutor’s actions foreclosed his being able to contact an attorney to obtain representation.
 
11.                  Once this occurred, his new judge, Susan Cook, would only offer to appoint Mr. Gaer, which then forced him to waive his constitutional rights to the appointment of counsel to avoid the reappointment of Mr. Gaer. 8/29/01 p. 4, 111-117; 10/3/01 p. 66.
 
12.                  Despite this issue being raised on appeal, the State Courts have totally ignored any comment on these constitutional claims.
 
GROUND-II
 
DELIBERATE DESTRUCTION OF MATERIALLY EXCULPATORY EVIDENCE / DELIBERATE DESTRUCTION OF FACIALLY APPARENT EXCULPATORY EVIDENCE AND / OR POTENTIALLY USEFUL EVIDENCE IN BAD FAITH
 
A.                     The Magistrate Misconstrued the Legal and the Factual Issues of this Claim based on the Following Facts.
 
(i)                       Petitioner’s Argument Showing Error
 
1.       August 29, 2001 a suppression hearing was held moving to suppress all evidence the police claimed contained “gasoline vapors.” (EP 353-362) Overlooked by the Magistrate are the evidentiary findings of fact advanced by the State and accepted by the Court that were based upon materially false information presented at the hearing.
 
2.       Also overlooked is where the State Courts clearly misstated the record in making their findings on material factual issues, and the fact that the Court’s decisions are contrary to and involve an unreasonable application of clearly established law as defined by California v. Trombetta, 467 U.S. 479, 489 (1984) and Arizona v. Youngblood, 488 U.S. 51, 58 (1988)
 
3.       During this hearing and on appeal, petitioner argued it would be a violation of his Sixth Amendment right to due process of law, if this evidence was not suppressed because the officers allegedly ruined it before it arrived at the Marysville Crime Laboratory two months late. Now there was no way petitioner could refute their trial testimony that it had. 8/29/01 p. 1-52; 54-68.
 
4.       During the hearing the State claimed that these issues did not matter because; “The State isn’t the law enforcement officers and the State Patrol Crime Lab.” (EP 365)
 
5.       This does not negate their liability, just the opposite, it means it causes liability. They are the ones who are responsible for ensuring that the evidence gets properly collected, processed, stored an then evaluated by the experts if they want to use it at trial They admitted that it wasn’t, and they used it anyway over petitioner’s objections.
 
6.       They claimed, and the Court agreed, the evidence “was not material exculpatory evidence . . . and bad faith had not been established, “ because both officers stated they “had no idea what type of substance was on the petitioner’s clothing and related items in his room” when they collected them:
 
In other words, they [Officer Lindberg and Detective Ruxton] didn’t actually know what it had on it, [If gasoline was on the items] so it doesn’t fall under the exculpatory standard. No showing by the defense of bad faith with respect to the preservation of those particular items. No showing that Detective Ruxton failed to follow any particular procedures that were required of him, and there fore the defense fails to meet its burden on this issue. 8/29/01 p. 65-66 (EP 356-357)
 
(ii)                   Facts That Were Overlooked by the State Courts and Magistrates
 
1.                        These evidentiary holdings conflict with the true and accurate facts of the case as known to exist by the police, the prosecution and the Trial Court, that each did know exactly what this evidence was, and it was gasoline:
 
(1) February 4, 1996 Arrest Affidavit: “He smelled of some type of oil product”; (2) Affidavit to Search: “He smelled strongly of petroleum products from his clothing . . . petroleum products coming from a bucket”; (3) Affidavit: “Mr. McDonald smelled strongly of a petroleum product which concerned Sgt. Lindberg . . . I seized a bucket with water and soap and a strong odor or petroleum coming from it”; (4) Detailed Incident Report: “He was fully dressed with a coat, heavy shirt, pants and tennis shoes and had an odor on him of some type of a petroleum product”; (5) Detailed Incident Report: “I told Mr. McDonald that his person smells strongly of what is believed to be gasoline.” (EP 580-599)
 
2.                        Despite the existence of these facts, the motion was denied and affirmed by all reviewing courts because they were unable to find bad faith. (EP 358-359) The Washington Supreme Court expanded this to include that the police officers’ “mistakes” as they claimed, were “potentially useful to the defense.” Ignoring the obvious that the police officers were not being truthful to cover up their actions and the prosecutor was condoning it. Slip Op p. 3-4
 
3.                        The reviewing courts ignored petitioner’s claims that this evidence was exculpatory, deliberately claimed they destroyed it to protect the fact it never contained gasoline vapors, and it was material exculpatory evidence.
 
4.                        The Magistrate has also ignored that by the prosecutor and the police setting forth such blatantly false statements, that this in and of itself constitutes a “continuing pattern of bad faith” requiring relief. See additional facts in Amended Petition DK# 12 p. 10-21; Traverse DK #29 p. 7-12, with attached supporting Appendix Section A and B.
 
(iii)                 The Evidence was Material Exculpatory Evidence Based on the Contents of the Police Officers’ Reports
 
1.                        This evidence meets the material exculpatory standard. For evidence to meet this standard, it must be favorable to the accused. United States v. Bagley, 473 U.S. 667, 676 (1985). It must have been suppressed by the government either willfully or inadvertently. United States v. Agurs, 427 U.S. 97, 110 (1976). And the evidence must be material to the guilt or innocence of the defendant. Bagley, 473 U.S. at 676-78; Benn v. Lambert, 283 F.3d 1040, 1052 (9th Cir. 2002).
 
2.                        Petitioner submits that since the State alleged gasoline vapors impregnated his clothing items, a bucket he was filing with water, bathroom and inside of his motel room, that these items fit this criterion. And a duty existed for the State to properly protect and preserve these items since they were gong to be using them in the prosecution of the case against petitioner. Yet they did not, and still used this evidence only to their benefit. See United States v. Booth, 309 F.3d 566, 574 (9th Cir. 2002) (explanation on duty to preserve material evidence).
 
3.                        Under Brady v. Maryland, 373 U.S. 83 (1963), and its progeny, the State violates due process when it suppresses or fails to disclose material exculpatory evidence. Illinois v. Fisher, 540 U.S. 544, 547 (2004). Trombetta clarifies that for Brady to apply, “the evidence must . . . possess an exculpatory value that was apparent before the evidence was destroyed.” 467 U.S. at 489. What could be more exculpatory than whether or not major items in an arson investigation contained gasoline? The only items linking the defendant directly to the crime itself?
 
4.                        The import of this evidence is even clearer when you consider the wealth of information that showed the defendant was not the perpetrator of the crime. See Ground-A infra; Request for Evidentiary Hearing DK #40 and Appendix-A attached; Amended Petition DK #12; Traverse DK #29 p. 8-10, w/attached Appendix-A, Pro Se Supplemental Brief, Insufficiency of the Evidence Argument p. 13-61. In conjunction with the reasons given by the police officers for their actions to inculpate him.[8]
 
5.                        Both officers were well aware of the exculpatory value of this evidence, since they both classified each piece in their police reports as containing gasoline vapors. Petitioner submits that this also created a duty under Brady for them to properly collect and preserve it if they planned to use it at trial. Because they did not, it should not have been used because its accuracy became irrefutable leaving only their testimony to authenticate it. (Because allegedly they incorrectly packaged it)
 
6.                        These “omissions” too severely prejudiced the petitioner because a police officer’s testimony will always be believed over that of a criminal defendant’s. See United States v. Webster, 497 F. Supp.2d 966, 972 (S.D.Ioxa. 2007). Petitioner’s testimony was therefore useless.
 
(iv)                 The Evidence was Potentially Useful Evidence Destroyed in Bad Faith as Shown by the Facts of the Police Officers’ Actions
 
1.                        The State Courts and Magistrate have not correctly evaluated these facts according to the mandate issued by the United States Supreme Court in California v. Trombetta, 467, 489 (1984) and Arizona v. Youngblood, 488 U.S. 51, 56-57 n.8 (1988).
 
2.                        The Supreme Court made clear in Trombetta and Youngblood that the dispositive issue for due process purposes is the state of mind of the police or the prosecution at the time the evidence is lost or destroyed. Richter v. Hickman, 521 F.3d 1222, 1235 (9th Cir. 2008). This “bad faith” is defined by the actions taken by these individuals “in order to prejudice the defendant’s defense or to otherwise put him at a disadvantage.” Trombetta, 467 U.S. at 488; United States v. Webster, 497 F.Supp.2d 966, 972 (S.D. Iowa. 2007). This “state of mind” would then require an evaluation be conducted by the Court of the claimed wrongful actions.
 
3.                        These evaluations of fact have never taken place by any court to date as required by the United States Supreme Court. In fact, they have totally ignored these facts, which now must be assessed by this court for a determination if these “actions prejudiced the defendant’s defense and otherwise put him at a disadvantage.” Id.
 
4.                        These prejudicial acts severely hampered his ability to present his defense because he was unable to have proper evaluations conducted on any of this evidence. The evidence that these officers kept secret from both on-scene arson investigators whose job descriptions designate that they investigate, verify, collect and store in proper containers. And include the results of their investigations in their reports of the incident for petitioner’s use too. None of which occurred, prejudicing his defense. (EP 556-566 Incident Reports).
 
5.                        To suppress their actions they also failed to inform both on-scene police officers Booth and Wenzel of their alleged “discover” of gasoline vapors, on anything anywhere. Because there was none, (EP 594, 606-608 Police Officers’ Reports of the Incident), also prejudicing petitioner.
 
6.                        These omissions they classified as “errors,” claimed innocuously by veterans such as these, with a “variety of training too numerous to list . . . over 2000 hours of training,” VRP 134, simply defies logic and could not have been made inadvertently as they claimed at trial.
 
7.                        This court’s review now is to assess the “prejudice and disadvantage” suffered by the wrongful actions of both these officers as listed in the Amended Petition DK#1 p. 10-21 and Traverse DK #29 p. 8-10, under Egregious Acts of Bat Faith ¶ a-p and Collateral Acts Constituting Bad Faith, ¶ a-f; and (i) Applications of Whitebread Doctrine to Cause Wrongful Conviction, Ground-A infra, ¶ a-p. Including Detective Ruxton’s claim he simply “forgot” to send the evidence to the crime laboratory for over two months. Just to ensure his evaporation theory would fly. VRP 742-743, 915.
 
8.                        Petitioner lost the only available means to conclusively prove that he had not come into contact with gasoline the night of the offense. This was a deliberate act, which prejudiced his defense the most.
 
GROUND-V
 
THE EVIDENCE WAS INSUFFICIENT TO SUPPORT THE ELEMENTS OF THE CONVICTION AND THREE ALTERNATIVE MEANS CHARGED IN COMMITTING THE OFFENSE
 
A.                     The Magistrate Misconstrued the Legal and the Factual Issues of the Claim Based on the Following
 
(i)                       The State Courts Findings of Fact Did Not Include the Requisite Elements and Alternative Means of Committing the Offense
 
1.                        Petitioner moved for a direct verdict at the close of the State’s case. The Court denied the request finding that “McDonald was guilty of one or more of the charged offenses.” VRP 841.[9]
 
2.                        He filed Motion for New Trial claiming the insufficiency of the evidence on all means charged. Further claiming that the “essential elements of first and second degree arson and the elements that the defendant acted knowingly and maliciously were not proved beyond a reasonable doubt.” In support he argued his knuckles had not been “cut and bleeding” as the person who had purchased the gasoline; the motel room door was never on fire as his defense expert attested during trial (EP 267), and the state’s expert claimed was “just beginning to burn” VRP 518; he had no petroleum on his person or inside his room; he did not match the physical description of the person who purchased the gasoline; and no loss-restitution statement had been filed by the motel’s manager for any alleged “fire damage” to the surface of the door. 2/22/02 p. 41-71 (EP 240-270).
 
3.                        Also filed in support were the arson investigator’s reports, which did not claim the door had “been on fire,” or that they had detected the odor of gasoline vapors on petitioner or inside his room during their inside investigation and face to face communications with the petitioner immediately upon their arrival at the scene. (EP 556-566).
 
4.                        The trial court again denied the request holding that a rational trier of fact could have found sufficient evidence to conclude that the defendant is guilty of both counts. And sufficient factual basis was established for the convictions. (EP 393, 396).
 
5.                        On direct appeal petitioner pro se briefed the sufficiency of the evidence argument without defense expert Dr. John DeHaan’s trial testimony in his Pro Se Supplemental Brief p. 13-61. (See Traverse Appendix-A attached thereto, DK #29). Counsel’s argument addressed the sufficiency of the evidence under RCW 9A.48.020(1)(c)(fire inside a building), p. 57-59, as did her Reply Brief p. 12-21.
 
6.                        In response to the pro se arguments the Court found the “facts established by Edith and the cab drivers sufficient to support McDonald’s conviction.” 5/24/04 Slip Op p.7. Counsel’s argument was rejected because “substantial evidence supports the jury’s conclusions flames entered the dwelling.” 5/24/04 Slip Op p. 4.
 
7.                        The Washington Supreme Court affirmed the Court of Appeals decision without discussing the evidentiary sufficiency of the evidence.
 
8.                        The Courts have failed to review the “totality of the evidence,” and to “make specific references to the facts and the arguments that petitioner has set forth” showing the insufficiency and wrongdoing by the State officers and prosecution. See Pro Se Supplemental Brief; Amended Petition; Traverse and “Applications of Whitebread Doctrine to Cause Wrongful Conviction,” p. 3 through 6 infra. See specifically, Sarausad v. Porter, 479 F.3d 671, 678 (9th Circ. 2007) (appeal from the Honorable John C. Coughenour, Chief Judge, Western District Court).
 
(ii)                   Standard of Review / Objective Unreasonableness Test
 
1.                        To review sufficiency of evidence claims, the Ninth Circuit employs the Objective Unreasonableness Test under §2254(d)(1) to state court decisions applying Jackson v. Virginia, 443 U.S. 307 (1979); Sarausad, 479 F.3d at 678. This test incorporates five sub-parts required to analyze Jackson. This evaluation also requires the court to “review the entire record” when making this evaluation. A review which has not taken place.
 
2.                        The State Courts failed to perform a proper analysis, comment on the facts and arguments, and have completely ignored the material probative evidence and “key arguments” central to his claims. See Sarausad, 479 F.3d at 697 n.2 (state court should have made findings of fact but neglected to do so, so we may make the findings ourselves).
 
3.                        The Magistrate failed to correctly perform this analysis, and failed to comment on each of the claims in relation to the facts. Nor has the Magistrate properly “considered the following guidelines” in applying the five part analysis of Sarausad.
 
a.                        Federal Court’s Focus on State Court Decisions
 
(i)                       The review has been done incorrectly because the “evaluation” lacks specificity. Further, on collateral proceedings petitioner did not raise the insufficiency of the evidence, only that Dr. DeHaan’s trial testimony was missing from the VRP’s prohibiting briefing and support.
 
b.                        Federal Habeas Court Must Look to the Totality of the Evidence in Evaluating State Court Decisions.
 
(i)                       No State Court has reviewed the “totality of the evidence.”
 
(ii)                   The State Courts erred when they claimed “McDonald wrongfully focuses on his own evidence.” 5/24/04 Slip Op p. 3. Petitioner only cited state witnesses’ trial testimony because “his evidence” had been removed from the Record on Appeal. (EP 409-410, 414 Affidavits)
 
(iii)                 All courts failed to consider trial exhibit #45, a 9x12 color photograph of the motel room door showing that it had never been “on fire.” They refused to release a color copy of this exculpatory evidence when requested by formal motion (EP 389, 460-467), and certified letter to the Skagit County Court Clerk. (Appendix-D attached)
 
(iv)                 The courts totally ignored all the physical evidence cited that supported the facts he did not commit the offense. See specifically Note 8, page 18 infra for complete facts, erroneous descriptions and no injuries on hands, etc.
 
(v)                   The courts ignored the claims of wrongdoing when Officer Lindberg and Detective Ruxton “investigated” the crime scene, and failed to inform either on-scene arson investigator or either on-scene police officers, Booth and Wenzel (EP 594, 606-608), that they had allegedly discovered the presence of “gasoline vapors” inside petitioner’s room and on his person, so that they too could investigate and record these facts as their job descriptions require; and he could have accessed in the investigation of his defense. VRP 223, 226-228; 1/16/02 p. 27-31; VRP 556, 606-608, 827-829, 940.
 
 
(vi)                 The courts ignored the claim that something was seriously wrong in this case because the arson investigator investigated a structure fire to the surface of a motel room door, prepared a 7-page incident report, and failed to mention that the door had ever been on fire. “No.” VRP 546 (EP 489, 556-563)
 
(vii)              The courts ignored the claim that something was seriously wrong in this case because the “victim” spoke with the arson investigator for over 15 minutes when compiling his report of the incident, and did not tell him that her door had been on fire. “No.” VRP 547
 
(viii)           The courts ignored all the facts showing innocence claimed in the Application of the Whitebread Doctrine to Cause Wrongful Conviction. See Ground-A infra; See Appendix-A attached to Traverse DK #29.
 
(ix)                 How many times should the appearance of wrongdoing present itself before the presumption of happenstance no longer exists? This answer is what petitioner is requesting from this court.
 
c.                         Failure of the State Courts to Consider at all a Key Argument of the Defendant
 
(i)                       Petitioner is unable to set forth his “key arguments” because his defense expert’s trial testimony is no longer part of the record. (EP 4090417 Affidavits)
 
(ii)                   Petitioner’s “key argument” was the lack of the Corpus Delicti (EP 485-490) Formal motions were argued and denied. This consists of two elements: (1) that the building burned; and (2) it burned as a result of the willful and criminal act. State v. Picard, 90 Wn.App. 890, 901, 954 P.2d 336 (1998). The State Arson Expert attested the door was only “beginning to burn.” VRP 518. Beginning to burn does not satisfy the requisite elements of the statue. The “victim’s” testimony lacked all credibility: she “forgot” to tell the arson investigator her door was on fire; she offered to “change her story” if petitioner bought her a new van VRP 97; she changed her testimony and was untruthful.
 
(iii)                 Manifestly dangerous RCW 9A.48.020(1)(a) is not supported by the evidence. It must be supported by the evidence that the fire is: “manifestly dangerous, that is obvious, clearly evident to the senses and the mind . . . danger is measured by the potential for harm.” State v. Plewak, 46 Wn.App. 757, 763, 732 P.2d 999 (1987). This means “considering the size of the fire and apparent danger to fireman.” Id. Petitioner dragged the mat away from the door according to the “victim;” she heard the fire siren at her door, which arrived two minutes later; her door was only “beginning to burn”; no loss-restitution was filed to replace the door because it was not damaged; an ice bucket of water extinguished the fire; trial exhibit #45 shows the door was not burned. For these reasons, the fire was not “manifestly dangerous.”
 
(iv)                 Fire in the building RCW 9A.48.020(1)(c), is not supported by the evidence. The carpet was not burned. No smoke damage was inside the room. The state’s arson expert attested that the door was only “beginning to burn.”
 
(v)                   None of the above issues were addressed by the courts.
 
(vi)                 These are the reasons that defense expert Dr. John D. DeHaan’s trial testimony was removed from the record on appeal. Also, because it was based on his scientific evaluation of trial exhibit #45, where he explained the reasons that the door had not been on fire from review of the wood grains on the surface of the door before it was sanded.
 
d.                        The Failure of the State Court to Give Appropriate Weight to All the Evidence
 
(i)                       The State Courts have given no weight whatsoever to any of petitioner’s arguments expressed hereinabove. Or have even mentioned one in any of their “evaluations” contrary to this court’s holding in Sarausad, 479 F.3d at 678 (court must look at the totality of the evidence in evaluating state court’s decision)
 
(ii)                   Petitioner has shown false invented facts designed to inculpate him by the officers in many of their police reports. The State witnesses have even admitted they were false, and no such “altercations” with the victims occurred: “No, that did not occur.” VRP 80-81. These too were ignored by the state courts under the auspices of the two Constitutional rights principle of the Whitebread Doctrine of Law, applied to the plebeian.
 
(iii)                 Facts ignored by the courts to falsely inculpate the petitioner with reasons and motives structured by both officers are listed in the Pro Se Supplemental Brief, p. 42-028, and now attached as Appendix-E, graphically show this illegal conduct.
 
(iv)                 The State of Washington’s Whitebread Doctrine that is instructed to the judiciary behind closed doors is finally being exposed on WASHBLOG and DAILY KIOSK. Over 1000 viewings have taken place, See MySpace.com/stevendarbymcdonald. See Appendix-F attached.
 
e.                         The Absence of Cases of Conviction Precisely Parallel on These Facts
 
(i)                       The state courts have failed to cite even one case to support any similar factual situation dealing with either the requisite elements of the offense or the alternative means charged.
 
Each of the courts have erred when they have “failed to analyze each of the essential elements of the substantive crime,” contrary to Brown v. Farwell, 525 F.3d 787, 794 (9th Cir. 2008); Chein, 373 F.3d at 983, and Jackson, 443 U.S. at 324 n. 16. And erred by ignoring his arguments and facts of innocence, rendering their assessment of the evidence “objectively unreasonable.” Sarausad, 479 F.3d at 677.
 
GROUND-IV
 
PETITIONER’S CONSTITUTIONAL RIGHT TO DIRECT APPEAL WAS VITATED WHEN VITAL EXCULPATORY EVIDENCE WAS REMOVED FROM THE TRIAL TRANSCRIPT PROHIBITING HIM FROM ASSERTING HIS INNOCENCE ON DIRECT APPEAL
 
A.                     The Magistrate Misconstrued the Legal and the Factual Bases of This Claim for the Following Reasons:
 
(i)                       He adopted incomplete and erroneous State Court findings of fact and conclusions of law; and,
 
(ii)                   Failed to properly apply the correct United States Supreme Court legal standards.
 
(i)                       ERRONEOUS AND INCOMPLETE FACTS
 
1.                        The Magistrate incorrectly noted it was “the trial court . . . that refused his requests to send color copies of the photograph so Dr. DeHaan could reconstruct his testimony.” p. 29, 5-7. It was Division One, not the trial court, when petitioner was on direct appeal that refused to release a color copy of trial exhibit #45 that petitioner had requested by sworn motions, so he could provide the Court at that time with this omitted testimony. (EP 460 Motions). However, the Court refused to release these public documents, knowing full and well, that his trial testimony had been removed by Skagit County, and that without a copy of this trial exhibit, no reconstructed testimony could be possible.
 
2.                        Division One instead applied the State of Washington’s Whitebread Doctrine of Law, giving the petitioner only “two constitutional rights, the right to go to jail and the right to stay there until his term is up.” September 16, 1996 VRP 16.
 
3.                        It was therefore, by their deliberate design, that Mr. McDonald “does not present any evidence [from Dr. DeHaan] showing what Dr. DeHaan’s missing testimony would have included, or how he was prejudiced by the lack of this testimony . . .” Report & Recom. at p. 29, 14-15. Contrary to this assertion, petitioner did provide this information which was completely ignored by the Magistrate.
 
4.                        Trial Counsel’s affidavit, ignored by the Magistrate, specifically addresses this issue:
 
4.   I called Dr. DeHaan to the witness stand and questioned him repeatedly whether or not in his opinion the door had ever caught fire. He responded to each of my questions that it had not.
 
8.   I’d like to make this perfectly clear. I repeatedly asked Dr. DeHaan if in his opinion the motel room door had ever been on fire. And his repeated answer was that it had not ever ignited and had never burned. All his trial testimony on this matter is no longer in the trial court record dated February 5, 2002. (Affidavit of Trial Counsel EP 409-410)
 
 
5.                        The Magistrate next finds fault with the impossible: that Dr. DeHaan could “describe questions he recalled being asked or even that he testified that the door did not burn and was not damaged” without actually viewing the evidence he is being asked to give his expert opinions about. P 30, 21-23. This type of testimony is prohibited in an affidavit because it’s pure “speculation”, attesting to facts based on non-existent evidence to evaluation.
 
6.                        Further, it’s unreasonable for the Magistrate to ignore trial counsel’s sworn affidavit attesting exactly what questions were asked of Dr. DeHaan, and his answers to those questions. Including Dr. DeHaan’s categorical reply that: “I can find no mention of the questions that I recall being asked during the proceedings.” Along with petitioner’s repeated attempts to compel the production of trial exhibit #45 for the court to review itself to evaluate if the door had ever been “on fire.” (See Request for Appointment of Counsel and to Produce Evidence, DK #40)
 
(ii) CONTRARY TO / UNREASONABLE APPLICATION OF LAW
 
1.                        The Magistrate states it’s okay that Dr. DeHaan’s trial testimony is missing. P 31, 15. And petitioner “does not explain how additional testimony from Dr. DeHaan would allow him to construct a sufficiency argument . . . and he has not shown how any missing testimony prejudiced him in his appeal.”
 
2.                        The Magistrate’s findings are in direct conflict with Mayer v. City of Chicago, 404 U.S. 189, 194-195 (1971); Britt v. North Carolina, 404 U.S. 226 (1971), as interpreted by the Ninth Circuit in Madera v. Risely, 885 F.2d 646 (9th Cir. 1989).
 
3.                        Petitioner has set forth how he was prejudiced by the omission of Dr. DeHaan’s trial testimony: “Petitioner was prejudiced by not being allowed to present facts to support the insufficiency of the evidence on all three legal theories charged in the information.” Id. Petition DK #12 p. 30-39; Traverse DK #26 p. 19 of 25, Lines 14-21.
 
4.                        Dr. DeHaan’s missing testimony would have showed how and why Mrs. Clarke’s testimony was completely false, and based on non-existent facts. In addition to how and why the door was never on fire according to the veneer surface and texture of the wood grains shown to exist in the trial exhibit #45. These things cannot be “created out of thin air” without review of this photograph to support the contents of Dr. DeHaan’s affidavit. To do otherwise is “pure speculation.”
 
5.                        Moreover, the Magistrate failed to apply the proper legal criteria to this claim as stated by the court in Cooper v. McGrath, 314 F.Supp.2d 967, 982 (N.D. Cal. 2004). Which is: (1) the value of the transcripts to the defendant in connection with the appeal or trial; and (2), the availability of alternative devices that would fulfill the same functions as the transcript. Britt, 404 U.S. at 227 n.2 and Madera, 885 F.2d at 648.
 
6.                        This legal analysis was not applied by the Magistrate to the facts, rendering his decision contrary to and an unreasonable application of Supreme Court authority.
 
7.                        Petitioner clearly complied with the proper pleadings requirements yet the Magistrate did not afford him an evidentiary hearing, and failed to request a copy of trial exhibit #45 to view for himself. And completely ignored the prosecution’s tactics alleged by petitioner as support to prohibit the release of this photograph to the jury, along with Dr. DeHaan’s trial testimony if the door had ever burned or was there any damage to the surface. The reason they tried to prohibit this is the same reason they removed it now from trial transcripts, to tilt the balance in their favor (See Petition DK #12 p. 31-34)
 
8.                        For the foregoing reasons, the Magistrate erred requiring this Court’s intervention to Order an evidentiary hearing and the production of trial exhibit #45 to personally view it at the least.
 
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 this Objection to the Magistrate’s Report and Recommendation and Motion to File Several Page Oversize Objection, were mailed together US Postal Service prepaid to: Rona Larson Assistant Attorney General, PO Box 40116, Olympia, WA 98504 on this 12th day of November 2008.
 
I declare under the penalty of perjury that the foregoing is true and correct and that both these pleadings were mailed together to the Court and the Attorney General, to the best of my information and believe under the laws of the State of Washington.
 
 
Dated: 11/12/08                                              ______________________________________
                                                                                  Steven Darby McDonald #703852/C-315
                                                                                 


[1] Supporting documents referenced herein are to the original five supporting Appendix Sections, designated by the symbols (EP) followed by the appropriate page number. VRP referenced pages are to the trial record. Pre and Post trial hearings are designated by the date of their occurrence followed by specific page number.
 
[2] Mrs. Clarke called petitioner’s classification officer at the prison several years later and told him to tell the petitioner that she would change her story if he would buy her a new van. VRP 97.
 
[3] “Prisoner” is defined under 28 U.S.C. §1915A(c) as follows: The term “prisoner” means any person incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms and conditions of parole and probation, pretrial release, or diversionary program.
 
[4] This same attorney the court again attempted to force petitioner accept as counsel during retrial. 10/4/01 p. 2-10; after the reversal of his conviction by the Washington Supreme Court for being forced to represent him in 1996. See State v. McDonald, 143 Wn.2d 506 (2001).
 
[5] This instruction, shown as being enthusiastically embraced by the trial judge, should be shared with all the citizens of the State of Washington.
 
[6] The petitioner is also claiming violations of §2254(d)(1), the unreasonable application prong, and §2254(d)(2), the unreasonable determination of the facts.
[7] The courts misapplied the correct constitutional standard in reviewing this claim when they applied the prejudice test in their evaluations. See Frantz, 513 F.3d at 1012 and Ground-B infra. Moreover, as noted by this court, Washington courts have a history of reading non-existent facts into the record to support their denials. See Sarausad v. Porter, 479 F.3d 671, 696 (9th Cir. 2007) (appeal from the Honorable John C. Coughenour, Chief Judge). Contrary to what they claimed, petitioner did request appointment of counsel for trial: 8/29/01 p. 4, 111-117; 9/19/01 p. 38; 10/3/01 p. 63, 66; 10/4/01 p. 2, 8, 9-10; 10/18/01 p. 10.
[8] These are not credibility determinations as characterized by the court, but facts attested by State witnesses. Cab driver’s Gerold Hackley and informant Barry Campbell’s identification of petitioner is not credible. Petitioner’s accurate description was described by State witness Dorothy Evans as consisting of: “Casually dressed, well groomed, spoke very articulately, tall, clan-cut, not shabbily dressed.” VRP 446-447. “Very short hair and very well kept . . . neat appearance.” VRP 812, 839. State witness Joseph Clarke’s description confirmed hers: “Well dressed man.” VRP 111. Detective Ruxton’s Search Warrant too verified these distinctions: “Brown hair, crew-cut, 42 years old.” VRP 727 (EP 583, 619). ON the other hand, the perpetrator who purchased the gasoline had “blond hair to his collar, was shabbily dressed and had cut and bleeding knuckles,” according to gas station attendant Lester McFarland. (EP 567-568; 660-664) VRP 886-901. When petitioner was arrested one hour later, he had no injuries on either of his hands according to Officer Lindberg who swabbed his hands looking for gasoline residue which he did not find. VRP 199-200. Further, according to informant Campbell, he picked petitioner’s photograph incorrectly from the photomontage as: “I recognize No. 5 (petitioner) from being in the jail. I think No. 3.” VRP 495-496 (EP 616 Photomontage Form). He further described the person as having “long hair to the collar.” VRP 808 (EP 74). Detective Ruxton admitted that both cab drivers descriptions did not match the petitioner’s which he characterized as only being a “Nuisance”; “No, the hair color, the hair length, the weight, the clothing, the facial hair, no.” VRP 805-806 (EP 72-72). Cab driver Gerald Hackley even described the person as being in his “20’s with hair to his collar, not military cut and scruffily dressed.” VRP 838 (EP 667).
[9] The trial court applied the incorrect standard of review. Petitioner must be guilty of “each of the means charged.” Not “one or more” as found by the Court. See State v. Kinchen, 92 Wn.App. 442, 451, 963 P.2d 982 (1998).