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Abuse of Discretion - StevenDarbyMcdonald.com

 

THE HONORABLE 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-BAT
 
PETITIONER’S APPLICATION FOR A CERTIFICATE OF APPEALABILITY FROM THE DISTRICT COURT WITH REASONS IN SUPPORT; NOTICE OF APPEAL AND REQUEST TO PROCEED IN FORMA PAUPERIS
 
Clerk: Please Schedule with Notice of Appeal and Motion to Proceed in Forma Pauperis Before the Honorable John C. Coughenour
 

 
 
INTRODUCTION
1.                        Pursuant to 28 U.S.C. §2253, Rule 22(b) FRAP, and Ninth Circuit Rule 22-1, petitioner Steven Darby McDonald, hereby requests that the District Court issue a Certificate of Appealability (hereinafter COA), permitting him to appeal from the judgment entered by the Honorable John C. Coughenour, U.S. District Judge, denying and dismissing with prejudice the petition for Writ of Habeas Corpus in the above entitled matter on
2.                        Concurrently with this Application for COA, petitioner is filing a timely Notice of Appeal and Request to Proceed in Forma Pauperis.
 
ISSUES ON WHICH CERTIFCATE OF APPEALABILITY IS SOUGHT
 
ISSUE – I
Whether the District Court erred in failing to appoint counsel and grant an Evidentiary Hearing on the grounds that a hearing would assist in producing further supporting facts to prove his Grounds, and that counsel is required to assist in obtaining these facts and present the issues to further develop the record under Totten v. Markle, 137 F.3d 1172, 1176 (9th Cir. 1989) and Griffin v. Johnson, 350 F.3d 956 (9th Cir. 2003(. See Dk #40-43; 74, 75.
 
ISSUE – IA
Whether the District Court erred in failing to appoint counsel and hold an evidentiary hearing because petitioner presented medical records and Declarations showing he is mentally impaired and not doing his own legal work during the course of the litigation, and has been confined to the psychiatric facility for over a year and a half during this litigation which could extend his time to file Amended Ground –VI if he had known how to do so under Laws v. Lamarque, 351 F.3d 919, 922-24 (9th Cir. 2003) and Whalen/Hunt v. Early, 233 F.3d 1145 (9th Cir. 2000) (en banc). See Dk #33-Motion to Amend with Ground-VI; Dk#40-43; 74-75.
 
ISSUE-IB
Whether the District Court erred when it denied petitioner’s request for the appointment of counsel and to hold an evidentiary hearing when it failed to consider five (5) Declarations that were submitted supporting his incompetency and that prison law clerks were doing his legal work; and failed to consider that MRI and CT scans of his brain show abnormalities along with diagnostic testing, and 100% disability awards from SSI and DSHS in addition to his DOC psychological classification as being a S.M.I.O. (Seriously Mentally Ill Offender); all of which required this Court to appoint counsel under Fed. R. Civ. P. 17(c) and Allen v. Calderon, 408 F.3d 1150, 1152-3 (9th. Cir. 2005), “because the allegations are unrebutted the district court was required to take them as true.” See Dk #40-43; 74-75.
 
ISSUE-II
The Court repeatedly applied the State of Washington’s Whitebread Doctrine of Law to petitioner giving him only “two rights under the Constitution, the right to go to jail and the right to stay there until their term is up” when if failed to apply the case laws that petitioner cited to his unique issues; failed to discuss any of these situations to suppress their existence from the public; and failed to allow Magistrate Donohue and Magistrate Benton’s favorable Report and Recommendation by released. See Dk #39 and 56; Motion for Change of Venue Dk #50.
 
ISSUE-III
The District Court failed to properly apply §2254(d)(1) to Habeas Grounds I through VI, contrary to Frantz v. Hazey, 513 F.3d 1002, 1012 (9th. Cir. 2008), especially in Ground-I in which the wrong standard was applied when the state courts applied the “prejudice standard” in evaluating this claim when it is not supposed to be applied and further failed to discuss any of the petitioner’s Federal Constitutional legal argument for any Federal Constitutional Claim, contrary to Frantz, 513 F.3d at 1016, and, Frantz v. Hazey, 533 F.3d 724 (9th Cir. 2008).
 
ISSUE-IV
The District Court erred when it failed to properly consider Ground-I and found that the trial court properly offered counsel and petitioner properly waived his rights to the appointment of counsel.
 
ISSUE-V
Whether the District Court erred when it found that the evidence that the police destroyed was not facially apparent and materially exculpatory evidence, all of which was destroyed in bad faith.
 
ISSUE-VI
Whether the District Court erred when it found that there existed sufficient evidence to support the elements of each offense charged, under each of the three alternative means charged in the information, when the court failed to conduct the required analysis to determine such by the Ninth Circuit in Sarausade v. Porter, 479 F.3d 671, 678 (9th Cir. 2007) Note 2 (state court should have made findings of fact but neglected to do so, so we may).
 
ISSUE-VII
Whether the District Court erred when it found he had not showed prejudice and that defense expert John D. DeHaan’s missing trial testimony did not violate his Constitutional rights to direct appeal and to be able to present the insufficiency of the evidence to show the motel room door was not on fire inside the motel room which is a necessary element of the offenses as they were all charged under RCW 9A.48.020(1)(a)(b)(c). Contrary to Madera v. Risely, 885 F.2d 646 (9th 1989)
 
ISSUE-VIII
As shown herein, the courts are on the take DK #39, 56, filled with sexual degenerates and perverts [1], and comprised of judges who refuse to answer their Interrogatories to hide the truth concerning their past involvement in the decision making in this case DK #72, 76. Petitioner could not receive a fair review of his claims and this case should have been transferred elsewhere as requested to avoid the application of the Whitebread Doctrine of Law Dk #50, ¶ 1, 2 p. 5 and 6 infra; Dk 39 and 56.
 
Was it an abuse of discretion for Judge Coughenour to not allow both Magistrates Monica Benton and James Donohue to file their favorable Report and Recommendation in petitioner’s case, and go on judge shopping until he found a Magistrate who would enter a Recommendation of Denial?
 
LEGAL STANDARD FOR ISSUANCE OF COA
 
1.                        In the U.S. Supreme Court decision of Miller-El v. Cockrell, 537 U.S. 322, 123 S. Ct. 1029 (2009), the Court clarified the standards for the issuance of a COA as follows:
A prisoner seeking a COA need only demonstrate a “substantial showing of the denial of a Constitutional right. A petitioner satisfies this standard by demonstrating that jurists of reasons could disagree with the district court’s resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.
 
Id., 123 S. Ct. 1034, citing Slack v. McDaniel, 529 U.S. 473, 484, 120 S. Ct. 1595 (2000). Reduced to its essentials, the test is met where the petitioner makes a showing that “the petition should have been resolved in a different manner or that the issues presented were ‘adequate to deserve encouragement to proceed further.’” at 1039, citing Barefoot v. Estelle, 463 U.S. 880 (1983). This means that the petitioner does not have to prove that the district court was necessarily “wrong” – just that its resolution of the Constitutional Claim is “debatable”:
We do not require the petitioner to prove, before the issuance of a COA, that some jurists would grant the petition for habeas corpus. Indeed, a claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case received full consideration, that petitioner will not prevail. As we stated in Slack, where a district court has rejected the constitutional claims on their merits, the showing required to satisfy §2253(c) is straightforward: the petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.
 
2.                        Applying the above standard for granting a COA, this Court has acknowledged that the standard is “relatively low.” Jennings v. Woodfood, 290 F.3d 1006, 1010 (9th Cir. 2002). Moreover, because the COA ruling is not adjudication on the merits of the appeal, it does not require a showing that the appeal will succeed. Miller-El v. Cockrell, supra, 537 U.S. at 337. Any doubts about the propriety of a COA must be resolved in the petitioner’s favor. Lambright v. Stewart, 220 F.3d 1022, 1225 (9th Cir. 2000)(en banc).
 
3.                        Petitioner attempted to amend Ground-VI to the petition, which was refused by the Court. This claim should also be considered by this Court because the Slack rule “applies even to claims not contained in the original petition, but that are later asserted in an amended petition.” See Petrocelli v. Angelone, 248 F.3d 877, 885 (9th. Cir. 2001), citing Slack, 120S. Ct. 1595.
 
PRELIMINARY STATEMENT
 
1.                        The federal judiciary, once up on a time . . . the beacons of integrity and the backbone of our country’s strength, seem to be no longer of their own minds, but controlled by special interests and the lure of naked flesh. Judges now openly lust for flesh and engage in sexual fornication in their once sacred chambers. Or dress as transvestites while raging in drunken stupors. If not cross-dressing wearing women’s clothes or raping prostitutes in court chambers, they fondly gaze upon pornography on their personal Web sites. (See Exhibit-A News Article dated 10/21/08 detailing resignation of U.S. District Judge Edward Nottingham for committing a forced rape in court chambers and trying to force the victim to lie and cover it up); (See Exhibit-A News Article dated 9/26/08 detailing resignation of U.S. District Judge Robert Somma for driving drunk and wearing a woman’s dress); (See Exhibit-A News Article dated 9/26/08 detailing investigation of Chief Judge of the Ninth Circuit of Appeals, Alex Kozinski for having sexually explicit photographs on his personal Web site).
 
It is officials like this who have turned a blind eye to the outrages complained of herein. And instead, protected the officials responsible for wrongfully inculpating Mr. McDonald and sending him to prison for life for the alleged crime of “burning a doormat that discolored a door”. See State v. McDonald, 143 Wn. 2d 506, 508 (2001). A crime he did not commit, but could not prove, because those responsible for ensuring that justice is served, instead conspired against him and removed vital exculpatory evidence from the transcripts that supported his innocence. And repeatedly applied the State of Washington’s Whitebread Doctrine of Law giving him only two rights under the Constitution, the right to go to jail and the right to stay there until his term is up.
 
2.                        Mr. McDonald’s petition was initially assigned to Magistrate Monica Benton 1/29/07. She was issuing a favorable Report and Recommendation which was halted when discovered by the district judge who then immediately reassigned it to Magistrate James Donohue 3/11/08. Again Magistrate Donohue was issuing a favorable Report and Recommendation which was discovered by the district judge who then again immediately reassigned it to Magistrate Brian Tsuchdia 7/17/08 Dk #56. Magistrate Tsuchdia, according to the inmate community, recently received his appointment as Magistrate Judge after he thwarted inmate Tony Dictado’s Blakely retroactivity claims before the USSC. He immediately issued a Recommendation of Denial November 6th, 2008 Dk #79. Petitioner timely filed his Objection to this Report November 12, 2008 Dk #81. (See Exhibit B).
 
3.                        The Report and Recommendation erroneously adopted the State Court’s factual reasoning on each issue, and totally ignored the facts that the State Courts failed to address any of petitioner’s Federal Constitutional arguments, contrary to Steward v. Erwin, 503 F.3d 488, 495 (6th Cir. 2007) and Frantz v. Hazey, 533 F.3d 724 (9th Cir. 2008)(en banc), which holds they are supposed to address each Federal Constitutional claim. And are to afford “deference only to the result reached by the State Courts, and not their reasoning.” (See Exhibit C)
 
 
4.                        Petitioner raised six Federal Constitutional Claims which the Magistrate failed to apply the proper controlling USSC standards of law and Ninth Circuit analysis of those standards. Briefly, these claims and his objections consist of the following.

 
A.    Request For Appointment Of Counsel Based On Incompetency/Request For Production Of Exculpatory Documents Trial Exhibit #45/Request For Evidentiary Hearing/Request To Toll ADEPA To File Ground –VI Because Of Incompetency
 
i.                          Petitioner raised his present incompetency to litigate and incompetency during the pendency of this appeal, when he had been confined to the psychological treatment center for the state (SOU) for over 1 ½ years. During which time it would have tolled the ADEPA statue of limitations to file Ground –VI, which the Court claimed was filed several months late. The Attorney General failed to address these issues of incompetency under Fe. R. Civ. P. 17(c), which according to prevailing case laws, requires that these facts be taken as true by the Court in its evaluations of the incompetency claim. See Laws v. Lamarque, 351 F.3d 919, 922 (8th Cir. 2003) and Allen v. Calderon, 408 F.3d 1150, 1153 (9th Cir. 2005). In fact, in other courts petitioner is presently been adjudicated entitled to the appointment of a Guardian Ad Litem based upon these same medical facts. His claims are fully supported by recent MRI and CT scans of his brain, including recent diagnostic testing. In addition, he is presently classified by the DOC as being a Seriously Mentally Ill Offender (SMIO). Also 5 Declarations were filed attesting to his incompetency and the fact that he is not the person who is doing his legal work. All this information was ignored by the Court under the “two Constitutional rights” principle enunciated in the State of Washington’s Whitebread Doctrine of Law. See Laws, at 923 and Allen at 1152 for support. Dk #40-43; Dk #74-75.
 
ii.                        Petitioner also moved for an evidentiary hearing because the State had been suppressing vital exculpatory evidence, Trial Exhibit #45, a Color Photograph of the surface of the motel room door before sanding and scraping, with the appointment of counsel to assist in obtaining these suppressed things, and an Affidavit from his defense expert, Dr. John DeHaan, attesting his reconstructive testimony from the photograph that the door had never been on fire. These things would “produce more reliable and probative evidence” than what the petitioner has been able to obtain so far, requiring an evidentiary hearing. See Griffin v. Johnson, 350 F.3d 956, 966 (9th Cir. 2003)
iii.                     Further, contrary to what the Court held, these issues cannot be “resolved by references to the State Court Record” because they do not exist therein. And what does exist, the State is refusing to release so accurate facts can be reconstructed by defense expert Dr. John DeHaan. See Schriro v. Lindrigan, 127 S. Ct. 1933, 1940 (2007) and Totten v. Merkle, 137 F.3d 1172, 1176 (9th Cir. 1998) evidentiary hearing not required on issues that can be resolved by reference to the state record).
 
iv.                     Petitioner set forth all efforts he made trying to obtain these vital supporting documents in his Request for Counsel and Evidentiary Hearing. Dk#40. The Court ignored his efforts and the importance of obtaining these facts. These facts would show Mrs. Clarke’s testimony that her door was “halfway on fire” were completely false, by Dr. DeHaan’s scientific analysis of the wood grains from the veneer surface of the door.
 
v.                        Moreover, Mrs. Clarke attested that she called the prison and offered to “change her story” if petitioner would buy her a new van. VRP 97. This in addition to the State’s arson expert, who had no credentials supporting his expertise, testimony that the door was only “beginning to burn.” VRP 518. Which does not meet the statutory requirements of the offense that it be “manifestly dangerous.” See RCW 9A.48.020(1)(a)(b)(c).
 
vi.                     The Court ignored the import of these facts and the need for further development. The remainder of which would have totally negated the requisite elements of the offense, and its three (3) alternative means charged which must also be fully supported by the evidence. For all these reasons, petitioner moved for an evidentiary hearing.
 
B.     The Court Failed To Properly Apply The Standards Set Forth By The Ninth Circuit In Frantz v. Hazzey, 533 F.3d 724, 732-35 (9th. Cir. 2008) To Grounds I Through VI.
 
i.                          Petitioner pointed out the State Court’s failure to comment on his Federal Constitutional Law arguments, contrary to Frantz v. Hazey, 533 F.3d 724 (9th Cir. 2008)(en banc) and Steward v. Erwin, 503 F.3d 488, 495 (6th Cir. 2007). These cases set forth the criteria that State Courts must at the very least, comment on the Federal Constitutional question presented by the petitioner. Not once has any State Court performed this type of analysis on any of the petitioner’s six federal claims. Further, the federal court has wrongly adopted the state court’s reasoning in determining these issues, instead of only giving deference to the Courts’ results. See Stewart, 503 F.3d at 495.
 
ii.                        Because these issues have been wrongly decided they should be remanded to the state courts for a comment on the federal questions. And/or the federal court’s reasoning adopted from the state courts should be vacated, and the ordered to provide a correct rationale for their decisions without any deference to the state courts’ logic.
 
C.    The Courts Failed To Apply The Correct Constitutional Standard And Failed To Properly Consider The Facts When It Applied The Prejudice Standard To Petitioner’s Waiver Of Counsel
 
i.                          The State Courts failed to properly consider and evaluate the facts of this claim, and apply the proper controlling standard by the USSC that holds the harmless error analysis does not apply in evaluating this type of claim. Yet the State Courts applied it contrary to Frantz, 533 F.3d at 735 n. 13, which was also ignored by this Court in performing its analysis. See standards: Flanagan v. United States, 465 U.S. 259, 268 (1984) and United States v. Gonzales-Lopez, 126 S. Ct. 2557, 2564 (2006) (no prejudice evaluation in evaluating these claims). The State Court’s application of an erroneous standard of law in evaluating the claim renders their decision “contrary to” controlling US Supreme Court authority. Taylor v. Maddox, 366 F.3d 922, 1001 (9th Cir. 2004); Frantz, and Price v. Vincent, 538 U.S. 634, 640 (2003) (a decision by a state court is contrary to clearly established law if it applies a rule that contradicts the governing law set forth in Supreme Court cases).

 
ii.                        Further, the Magistrate erred when he speculated that the trial court was going to offering petitioner different counsel than Mr. Gaer in the future, when it had given no indication whatsoever of doing so. In fact, just the opposite was the case throughout all the previous proceedings. Moreover, the Court erred by simply even offering the reappointment of Mr. Gaer. Petitioner did not have a “subjective belief” that Mr. Gaer would not be acting in his best interest, but he objectively knew it from the ruling by the Washington State Supreme Court. Compare, Plumlee v. Masto, 512 F.3d 1204 (9th Cir. 2008) with the Court’s holding in State v. McDonald, 143 Wn. 2d 506 (2001). Petitioner clearly wanted counsel. “Not Mr. Gaer after what he said here . . . in both his letters.” 10/4/01 p. 4-15.
 
D.    The Courts Have Failed To Fully Address The Violations Of Both The Material Exculpatory Evidence And/Or Potentially Useful Evidence Destroyed In Bad Faith Standards That Are Used To Support These Claims.
 
i.                          The Report and Recommendation only considered half of petitioner’s argument, not addressing that the evidence could have also been considered Material Exculpatory Evidence. See Objection to Report and Recommendation at p. 15 through 20. Petitioner submits that the evidence was classified as Material Exculpatory Evidence when the police wrote in their reports that they recognized it contained “gasoline vapors” and they knew it did. This action then created a duty for them to act properly and preserve it if they were planning on using it at trial. Because they did not, for whatever reason, they were then prohibited in using it. See United States v. Ramirez-Lopez, 315 F.3d 1143, 1165 n. 6 (9th Cir. 203); United States v. Booth, 309 F.3d 566, 574 (9th. Cir. 2002) (evidence whose exculpatory value was apparent before its destruction is material exculpatory evidence). These facts were established at the 8/29/01 suppression hearing (EP 356-357), and were not considered by the Court. See all facts and admissions by police officers reports (EP 580-599).
 
ii.                        Moreover, the Court failed to properly apply the standards of Arizona v. Youngblood, 488 U.S. 51, 56-57 n.8 (1988) and California v. Trombetta, 467 U.S. 479, 489 (1994), to petitioner’s unique set of facts. No required evaluations took place by any reviewing courts, rendering their decisions “contrary to” federal law.
 
 
iii.                     The standard of “bad faith” and its proper application is defned by the Ninth Circuit in Richter v. Hickman, 521 F.3d 1222, 1235 (9th Cir. 2008). The “state of mind” requirement is defined by United States v. Webster, 497 F. Supp. 2d. 966, 972 (S.D. Iowa 2007). Neither of these evaluations were properly conducted by any of the reviewing courts as required in the evaluation of these Constitutional claims. Rendering all prior decisions “contrary to clearly established law.” Price, 538 U.S. at 640.
 
E.     Insufficiency Of The Evidence/Requisite Elements Not Supported By Competent Evidence And Alternative Means Not Proved.
 
i.                          The reviewing courts have failed to properly apply the Jackson v. Virginia, 443 U.S. 307 (1979), standard to the requisite elements of both Count I and II, and to each of the three (3) alternative means charged under RCW 9A.48.020(1)(a)(b)(c), as required to properly support the conviction. See State v. Smith, 159 Wn. 2d 779, 790 (2007) for explanation of facts required to be present to support each alternative means of committing the crimes. The reviewing courts have failed to take into consideration these factors. And further failed to take into consideration petitioner’s “key arguments and make specific references to the facts and arguments he set forth based on the record as a whole,” as required by Sarausad v. Porter, 4798 F.3d 671, 679 n.2 (9th Cir. 2007)
 
ii.                        Further, the courts have failed to apply the five (5) part “Objective Unreasonableness Test” when conducting their analysis as required by the Ninth Circuit. And further, “failed to properly analyze each of the essential elements of the substantial crime” as required by Sarausad v. Porter, 479 F.3d 678; Juan v. Allen, 408 F.3d 1262 (9th Cir. 2005) and Chein v. Shumsky, 373 F.3d 978, 983 (9th Cir. 2004).
 
F.     Defense Witness Dr. John Dehaan’s Missing Trial Testimony/Unable To Properly Raise Insufficiency Of Evidence On Direct Appeal/Failure Of Courts To Apply Proper Standards To Claims
 
i.                          Each of the reviewing courts have failed to apply the proper standards for missing trial testimony as stated are to be applied by the Court in Britt v. North Carolina, 404 U.S. 226 (1971), and clarified by the Ninth Circuit in Madera v. Risely, 885 F.2d 646 (9th Cir. 1989). The proper criteria to be evaluated are: (1) the value of the transcripts to the defendant in connection with the appeal or trial for which it is sought; and (2), the availability of alternative devices that would fulfill the same function as a transcript. See Britt, 404 U.S. at 227 n. 2; and Madera, 885 F.2d at 648.
 
ii.                        Further, contrary to what the Court claimed in denying this issue, petitioner has properly alleged prejudice in his pleadings as required by the standards, when he claimed in his petition that: “he was not allowed to present facts sufficient to show state witness Edith Clarke and Mark Malone’s testimony was not credible . . . “ Petition Dk#12 p. 30-39. And in his Traverse: “Petitioner was prejudiced by not being allowed to present facts to support the insufficiency of the evidence on all three (3) legal theories charged in the Information.” Traverse Dk #26 p. 19 and 25, Lines 14 through 22. These facts went completely ignored by the Court in performing its analysis, contrary to Price, 538 U.S. at 640 and Taylor, 366 F.3d at 1001 (Court cannot ignore to apply a USSC standards in evaluating the claims, or apply a standard incorrectly).
 
REASONS TO GRANT CERTIFICATE OF APPEALABILITY
 
ISSUE – I          Petitioner Requested To Amend His Petition With Ground-VI, The Failure Of The Trial Court To Conduct A Comparabiity Analysis Of The Out-Of-State Roberry Conviction Which Is Not Legally Or Factually Comparable To Washington’s Roibbery Statute. Dk #33; With New Case Laws And Declaration Kd #47. Order Of Denial 8/1/08 Dk #59
 
1.       Petitioner appealed these issues on page 7 (the first page 7) of his Objection to Report and Recommendation, Dk #81, where he pointed out that he was incompetent during this period which would have tolled the statute of limitations under the ADEPA to file this claim. See Laws v. Lamarque, 351 F.3d 919, 922-24 (9th Cir. 2003). The Court claimed that he had “provided no satisfactory explanation for delay in presenting Ground VI to the Court.” (It was 113 days late) And he had not shown that extraordinary circumstances beyond his control prevented him from filing his claim within the limitation period. Dk#59 p. 5.
 
2.       Petitioner had also filed in conjunction with this request, Motion Requesting Counsel due to incompetency with medical records to support such a finding. Dk #40. This is an “extraordinary circumstance” that would allow the tolling of the statute of limitations, which he was attempting to further develop by evidentiary hearing, which the Court also denied.
 
 
3.       The same records he presented to this Court to show incompetency, have been used in other court proceedings with a finding of the appointment of a Guardian Ad Litem.
 
4.       Petitioner’s supporting medical records show that he is/was incompetent during the pendency of this appeal, and had been confined to the Special Offenders Unit (SOU) for mentally ill inmates for over a year and a half. These facts if fully developed at an evidentiary hearing would toll the AEDPA statue of limitations in his favor under Laws v. Lamarque, 351 F.3d 919, 922024 (9th Cir. 2003). See Request for Appointment of Counsel, Dk#40 Appendix A through H, p. 2 (Medical Records).
 
5.       This claim was set forth under his Request for Counsel/Evidentiary Hearing in order to obtain further supporting facts to make the claim complete. He further supported it with three Declarations, two of which were from other inmates who have assisted him in doing his legal work, and who attested to his abnormal psychological impairments. Later this motion was amended with new medical records showing the existence of liver cancer and other impairments. See New Motion and Declaration, Dk #74-75.
 
6.       Some of these medical records consist of MRI and CT scans showing the presence of “Organic Brain Damage . . . Small Lacunar Infarctions . . . Basal Ganglia Lacunar Infarctions . . . Low Attention Lesions in Both Basal Ganglia . . . Organic Mental Disorders . . . Chronically Mentally Ill . . . Bipolar . . . Psychotic and Delusional Thinking . . . 100% SSI Disability . . . Hepatic Cancer . . . Depression . . . Hallucination. Additionally, the DOC has him presently diagnosed as being a “Seriously Mentally Ill Offender” (SMIO) for the last six years, which is classified by the DOC as being:
 
DOC Policy 630.500. A SMIO is an inmate who has a substantial mental disorder of thought or mood which significantly impairs judgment, behavior, capacity to recognize reality or cope with the ordinary demands of life within the prison environment, and is manifested by substantial pain or disability . . .
 
7.       Petitioner set forth these records showing incompetency for several reasons. First, to show the need for the appointment of counsel. And second, to show he was incompetent during the pendency of this appeal, which resulted in him being transferred to the Special Offenders Unit where he was diagnosed by Dr. Griesmer as suffering from “Organic Brain Damage.” And stayed there for over a year and a half while being “treated.” This period of time should count towards tolling the statute of limitations under Laws.
 
8.       Further, contrary to law, the Attorney General failed to challenge the veracity of these medical records that show his past and present incompetency, requiring that they be taken as true by the Court. See Allen v. Calderon, 408 F.3d 1150, 1152-53 (9th Cir. 2005) (because medical records are unrebutted by State Attorney district court is required to take them as true). Yet the Court failed to even acknowledge them at all as in Laws, 351 F.3d at 924. And failed to acknowledge the Declarations by the legal clerks attesting that they were assisting petitioner in his legal work. Dk #41-43. And then amended this pleading. Dk #74-75.
 
9.       Instead, as in Laws, the Court “speculated” petitioner was “more than capable of articulating his claims.” Completely ignoring his offers of proof stating that inter alia he suffers from “Organic Brain Damage” and is presently classified as suffering from a “substantial mental disorder of thought or mood which significantly impairs his judgment, behavior, capacity to recognize reality . . .” under DOC Policy 630.500.
 
10. It is clear that the courts have in the past applied the State of Washington’s Whitebread Doctrine of Law to the petitioner, which gives him only “two rights under the Constitution, the right to go to jail and the right to stay there until his term is up.” (EP 369)
 
11. Petitioner respectfully submits that these facts “demonstrate jurists of reason” could disagree with the Courts’ factual findings on this issue and with the resolution of his Constitutional claims. And it was an abuse of discretion not to appoint counsel and hold an evidentiary hearing to obtain further supporting facts in order to Amend Ground-VI based on these circumstances that he is/was mentally impaired.
 
ISSUE-II           Petitioner Should Receive The Appointment Of Counsel And An Evidentiary Hearing Got Further Develop The Fact That His Defense Expert Dr. John Dehaan’s Trial Testimony Has Been Removed From The Transcript, Vitiating His Rights To Direct Appeal; And Allow His Trial Testimony To Be Reconstructed By This Court Ordering The State To Release A Color Copy Of Trial Exhibit #45 Which Shows That The Surface Of The Motel Room Door Was Never On Fire.
 
1.       Petitioner set forth all efforts he made attempting to obtain a color copy of trial exhibit #45 which showed that the motel room door had never been on fire, to send Dr. DeHaan in California so he could reconstruct his missing trial testimony by analysis of the motel room door. See Request For Counsel/Evidentiary Hearing Dk #40, p. 11-14.
 
2.       After the Court acknowledged petitioner met all the procedural requirements to obtain an evidentiary hearing, which is a challenge in and of itself, it denied his request Nov. 6, 2008 holding that: “the issues in this case may be resolved by reference to the State Court Record . . . with respect to the Fourth Issue, the record includes Declarations by petitioner and Dr. John DeHaan regarding the testimony by Dr. DeHaan that petitioner alleges was removed from the transcript on appeal. The Court declines to hold an evidentiary hearing.” Dk #79 p. 6-7.
 
3.       Petitioner appealed this issue to the district court pointing out in his Objection, Dk #81 p. 1-7, 25-29, that under Griffin v. Johnson, 350 F.3d 956, 966 (9th Cir. 2003), a new affidavit from Dr. DeHaan would be of material benefit because:
 
“He will now be attesting that the motel room door had not burned, and what his original testimony was that has been removed from the VRP’s. Without this Court’s ordering the release of this photo, and arranging for his testimony to take place, this will never be accomplished, as the State has ensured by its failure to release same to date. See Objection to Report, p. 4, ¶ f and j.
 
4.       In his request for a hearing, Dk #40 p. 3-4 and 11-14, petitioner strenuously argued his need for a hearing on this claim and everything he had done up to this point attempting to secure the full recounting of Dr. DeHaan’s missing trial testimony on direct and collateral appeals.
 
5.       On direct appeal, he informed counsel this testimony was missing, and she filed formal motions attempting to have the Court release certified color copies of trial exhibit #45 which it was based, and which showed how the door appeared after the incident and before sanding and scraping and painting by the hotel manager six months later.
 
6.       The motions informed the Court these exhibits were needed because:
 
Appellate is unable to obtain those certified color copies from the Clerk’s Office of the Court of Appeals, Division I. (They refused to release copies, See Declaration of Stacy Kinzer)
 
Mr. McDonald is requesting the Court compel production of certified color copies of Exhibits 5, 6, 7, 45, 13-A and 14-A for Dr. DeHaan’s use so that he can adequately investigate issues concerning Mr. McDonald’s innocence and the insufficiency of the evidence to convict for a potential Personal restraint Petition. (EP 462, 460-467)
 
7.       Despite these records being accessible to the public under RCW 36.23.030 and RCW 36.23.076, the Court denied this request knowing that Skagit County had removed Dr. DeHaan’s trial testimony which supported the Petitioner’s innocence. Instead, the Court applied the State of Washington’s Whitebread Doctrine of Law, which gives the petitioner only “two rights under the Constitution, the right to go to jail and the right to stay there until their term is up.” (EP 389)
 
8.       Next the Court faulted petitioner for not providing a legally sufficient affidavit attesting to exactly what Dr. DeHaan attested to, when he could not provide such without his personal review and evaluation of the evidence, this public document that his trial testimony was originally based. To do so without his personal review to base his facts, would be to speculate what it was, which is not legally allowable by Declaration.
 
9.       The Magistrate’s request for Dr. DeHaan to do so, and then faulting him for not, is clear error. See Objections to Report at p. 6 and 25-29.
 
10. The Magistrate further erroneously faulted petitioner when it claimed that his:
 
Burden was to show that portions of Dr. DeHaan’s original testimony were missing, not to have Dr. DeHaan provide new or different testimony. Given the ambiguity of Dr. DeHaan’s Affidavit and the absence of any obvious break or disruption in his testimony, the State Supreme Court’s findings that petitioner had not shown an omission in the transcript of Dr. DeHaan’s testimony was not an unreasonable determination of the fact. p. 31 Report and Recommendation.
 
11. The Court’s mischaracterization completely ignores the obvious, along with Dr. DeHaan’s categoric sworn statements that his trial testimony concerning the damage to the surface of the door, is no longer part of the record. In addition to defense counsel’s sworn statements, who questioned him, that his trial testimony is no longer part of the record. (EP 409-410)
 
12. First, the Court alleged “ambiguity of Dr. DeHaan’s Affidavit,” is not ambiguous. He categorically attested that:
 
I can find no mention of the questions that I recall being asked during the proceedings. (EP 414)
 
Ambiguity is defined by Webster’s as: “Doubtfulness or uncertainty.” Dr. DeHaan’s claims are in no way “doubtful or uncertain” as shown by his Declaration. And the Court’s characterization otherwise is clear error, which is highly debatable among jurists of reason.
 
13. The next highly debatable error of fact committed by the Cou8rt was when it mischaracterized that petitioner had not met his “burden to show that portions of Dr. DeHaan’s original testimony were missing.” This error was made by the Court despite the fact Dr. DeHaan made a categorical claim that his trial testimony concerning the damage to the surface of the motel room door was no longer part of the transcript. Further, the Court overlooked defense counsel’s sworn Affidavit attesting it was missing, and exactly what questions were missing:
 
                                                                                  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 record dated February 5, 2002. (EP 409-410)
 
14. The Court also expressed “concern” of the absence of any “obvious break or disruption” in the trial record, which is misplaced. Petitioner claimed that this act was deliberately done to prohibit the chance of a reversal on appeal, as initially occurred, and which caused the prosecutor’s office to lament for days and days. What’s clear is that they would do anything not to retry this case. (See Exhibit-D Press Articles) See also Footnote 1 of PRP Memorandum of Fact and Law.)
 
15. These facts are further supported by the prosecution’s actions during trial to block all exculpatory evidence from being presented to the jury. Including Dr. DeHaan’s testimony that there was no surface damage to the door. VRP 871-872 (EP 101-102). And their attempts at suppressing Trial Exhibit #45, which was the color photograph of the motel room door that showed how it appeared before it was scraped and sanded, and showed it had not been on fire. VRP 287-291 (EP 101-102)
 
16. The Court further committed error when it erroneously found that petitioner had failed to set forth how he had been prejudiced by the omission of Dr. DeHaan’s trial testimony. p. 31 R&R. Again the Court failed to read what petitioner wrote, and how he had been prejudiced in his Petition Dk #12 p. 30-39, and Traverse Dk #26 p. 19 of 25, Lines 14 through 21:
 
Petition: The petitioner was further prejudiced by not being allowed to present facts sufficient to show state witnesses Edith Clarke and Mark Malone’s testimony was not credible, possibly tipping the scales in his favor. (Petition)
 
Traverse: 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.
 
Because of the above, the Court again committed clear error in its findings, as petitioner has explained how he had been prejudiced, and “how additional testimony from Dr. DeHaan would have allowed him to construct a sufficient argument that would permit the state courts to ignore the prosecution’s evidence that the door was on fire.” (See above 3 pages)
 
17. Further, petitioner was prejudiced as he could not argue any of Dr. DeHaan’s scientific factual evaluations and analysis of Trial Exhibit #45, and how this impugned on Mrs. Clarkes’ trial testimony that half her door was on fire, compared with state arson expert (who had no credentials of any type). Mark Malone’s trial testimony that her door was only “beginning to burn.” VRP 518. Which does not meet the legal definition of First Degree Arson codified under RCW 9A.48.020(1)(a)(b)(c).
 
18. Finally, the Court completely failed to apply the controlling USSC standards to evaluate this claim found in 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). In fact, the Court failed to make any reference whatsoever to these standards set forth by the petitioner. These omissions in law and fact constitute clear error that is debatable among jurists of reason. Accordingly, this Court should grant review.
 
ISSUE-III         The Court Erred When It Failed To Apply The Logic Of The Ninth Circuit Court Of Appeals’ Opinion In Frantz. V. Hazey, 533 F.3d 724 (9th Cir. 2008), And Request The State Court To Provide Reasons Why They Denied The Petitioner’s Federal Claims; And Further Erred When It Gave Deference To The State Court’s Reasoning For Their Denials Instead Of To The Result Only
 
1.                        Petitioner presented six Federal Constitutional Claims to the State Courts yet they failed to address any of these Federal Constitutional Claims and to provide reasons for their denials under federal law, contrary to Frantz v. Hazey, 533 F.3d 7322 (9th Cir. 2008) and Stewart v. Erwin, 503 F.3d 488, 495 (6th Cir. 2007). The federal court further erred when it adopted the state court’s reasoning for denying these claims instead of the result only.
 
2.                        Petitioner pointed this out in the Objection to the Magistrate’s Report and Recommendation, p. 7-11. Both the Magistrate and later the District Court Judge were required to address each of these issues “independently” of the State Court reasonings, and then apply the federal constitutional law without deference to the state court reasonings. The Court failed to perform this analysis on any of petitioner’s claims.
 
3.                        These actions have resulted in clear error being committed by the Court, rendering its decision debatable among jurists of reason. See Objection to Report and Recommendation p. 7-11.
 
ISSUE – IV     The Court Erred When It Failed To Apply The Proper USSC Standards To His Claims That This Decision To Waive Counsel Was Not A Voluntary Act And The Only Attorney The Court Would Appoint Was Disabled Conflict Counsel Gary Gear, And The Court Erred When It Speculated The Trial Court Would Have Appointed A Different Attorney Based On No Facts And Without Holding An Evidentiary Hearing.
 
1.                        In addressing this claim, the Court found facts that do not exist anywhere in the record. It presupposes, speculated and invented non existent facts to support its conclusions, and substituted its judgment in place of facts that could only be derived from an evidentiary hearing. Illustratively, it held that:
 
It is mere speculation to surmise that the trial court would have appointed Mr. Gear without exploring the conflict and petitioner’s ability and willingness to waive it. Or, that the trial court would have refused to appoint a different attorney should it have found the conflict irreconcilable. The Court of Appeals’ decision finding that the trial court did not force petitioner to choose between incompetent or unqualified counsel and self-representation was not contrary to, or an unreasonable application . . .
 
2.                        However, the petitioner categorically refused to accept the appointment of Mr. Gaer, no matter what the Court wanted to do. And in fact, Mr. Gaer refused to accept the appointment and informed the Court of this before it continued to attempt to force his reappointment:
 
THE COURT: What you are entitled to is an attorney to represent you at this point . . .I found one to do that. But you do not want an attorney to represent you, is that right?
 
THE DEFENDANT: Well, not Mr. Gaer, after what he said here.
 
THE COURT: Are you referring to his letters?
 
THE DEFENDANT: Both his letters.
 
THE COURT: You understand that I think in my opinion you’d be far better off represented by a trained lawyer?
 
THE DEFENDANT: Oh, I think so, too. (10/5/01 p. 4-15)
 
3.                        Contrary to the Court’s speculation, petitioner alleged the trial court only offered Mr. Gaer because that was the only attorney that the Court would appoint which it knew petitioner would and had refused, just like Mr. Gaer had refused to accept the appointment of petitioner. The Court’s wishful thinking otherwise is pure speculation which is prohibited and constitutes clear error.
 
4.                        Further, the Court failed to apply the correct controlling United States Supreme Court Standard to this claim, and instead, applied the harmless error review. See Frantz, supra. Petitioner pointed this out in his Objection to the district court judge, that the state courts all applied the incorrect standard, and all failed to discuss any of his federal constitutional claims as required by Frantz. See Exhibits attached to Objection to Report, brief filed before the Washington Supreme Court pointing these things out, Exhibit-B, Petition for Review.
 
5.                        Petitioner also claimed violations of Gideon v. Wainwright, 372 U.S. 335 (1963) and Entsminger v. Iowa, 386 U.S. 748 (1967), to the facts. The Court held:
 
He did not renew this request as the trial date approached, despite the trial court’s inquires. Based on the record as a whole, the state court of appeals reasonably determined that the petitioner unequivocally chose to represent himself.
 
6.                        Petitioner did make his request for appointment of counsel: “Well, not Mr. Gaer after what he said here.” The onus then was switched to the state to comply with the request. Compare, Plumlee v. Masto, 512 F.3d 1204 (9th Cir. 2008). After this, petitioner does not have to renew his request for counsel as claimed by the Court. See p. 15, line 14-15.
 
7.                        Further, contrary to Plumlee, petitioner did not “subjectively believe” his counsel would not be acting in his best interest: he objectively knew it. See State v. McDonald, 143 Wn. 2d 506 (2001). Had the Court had any intentions of appointing anyone else, as speculated by the federal court Magistrate, it would have done so at that time when it was apparent that both Mr. McDonald and Mr. Gaer did not want the representation. Not given some judge the opportunity to speculate over this over 7 years later.
 
8.                        Finally, the courts committed clear error when they ignored the State Court’s application of the incorrect legal standard in their evaluation of this claim under the harmless error analysis. See Frantz v. Hazey, 533 F.3d 724, 734 n. 13 (9th Cir. 2008). Petitioner’s claimed error is structural and not subject to the harmless error analysis. Yet the State Courts and Federal Court applied this standard, despite petitioner’s objections to it in his Objection to the Report and Recommendation, p. 9-11, n. 7 and in Appendix Section-B that is attached showing this issue was presented to the Washington Supreme Court on Review:
 
The appellate court also erred in its ruling that Mr. McDonald fails to establish any prejudice on this claim. Controlling authority actually holds that no prejudice need be shown to prevail on a claim of a denial of counsel.
 
9.                        These facts were all completely ignored under the auspices of the two Constitutional right principles enunciated in the State of Washington’s Whitebread Doctrine of Law, and constitute clear error.
 
10.                  Whenever a court fails to apply the proper legal standard to a claim, or applies “a rule that contradicts the governing law set forth in Supreme Court cases,” it commits error. See Price v. Vincent, 538 U.S. 634, 640 (2007). For these reasons, the district court’s assessment of this claim is in error and highly debatable. Accordingly, it should be reviewed.
 
ISSUE-V           The District Court Erred When It Failed To Apply The Controlling USSC Standards Found In Trombetta And Youngblood To The Facts Of The Case And Conduct The Required “State Of Mind” And “Bad Faith” Analysis Based On The Record As A Whole, Which Shows The Officers Actions To “Incorrectly Package The Most Critical Arson Evidence Was Done Deliberately “To Put The Petitioner At A Disadvantage.”
 
1.                        Each of the State Court’s erred by failing to conduct the required “state of mind” and “bad faith” analysis of the officers actions based on the “record as a whole” which shows not only that Officer Lindberg and Detective Ruxton deliberately packaged these items incorrectly, but did so with malice so petitioner could not access this evidence to support his innocence.
 
2.                        Further support for this fact is found by the fact that both officers claimed to have had “no arson training whatsoever,” but “over 2000 hours of training too numerous to mention.” Yet despite this, it never dawned on either to let the on-scene Arson Investigator Mark Malone or Fire Chief Dennis Hofstead, collect, package and process the most critical arson evidence – all the items that connected petitioner with the actual commission of the crime from being in contact with gasoline. Yet they both admitted to observing Arson Investigator Mark Malone collect and package his arson evidence in sealed metal and glass containers.
 
 
3.                        Now both the “professionals” want this Court to believe that they did not draw any conclusions from this observation, and that they just innocuously packaged the evidence incorrectly; the only evidence connecting petitioner with gasoline, the most critical evidence. See Petition Dk #12 p. 10-16 and Traverse Dk #28 p. 8-10 for full facts of inconsistencies.
 
4.                        Not only did they both fail to request professional assistance from on-scene professionals, but also suppressed these facts, that they had discovered gasoline on petitioner, his clothing, inside his room, from both on-scene fire experts so that they too could investigate and verify their suspicions and document these facts so petitioner could access their reports for trial.
 
5.                        Moreover, they even suppressed these facts from both on-scene police officers, Booth and Wenzel, so that they too could verify their suspicions and catalog this information so petitioner could access it for trial.
 
6.                        They inexplicably left two Arson Investigators and two Police Officers in the dark about their alleged discovery of “gasoline” on petitioner, on his person and inside his hotel room. The reason why is simple: There was none!
 
7.                        But what there is, is tons and tons of evidence that shows that the petitioner was innocent. The trial court suppressed the majority of this from coming into evidence to keep the jury in the dark. Some of this consisted of the fact that neither gas station attendant identified petitioner as coming to the gas station by cab and purchasing gasoline. The Court suppressed Richard Thuran’s sworn testimony about this as well as Detective Ruston’s display of the photomontage and non-identification.
 
8.                        The person who purchased the gasoline had “cut and bleeding knuckles” according to the gas station attendant, Lester McFarland. Petitioner had no injuries on his hands when arrested one hour later.
 
9.                        The witnesses’ identifications did not match petitioners. They claimed the person who purchased the gasoline had “blond hair to his collar, scruffily dressed, a young man.” Petitioner was 42, with a military flat top, nicely dressed with brown hair. See Footnote 8 p.18 of Objection to Magistrate Report and Recommendation. None of these factual deficiencies were addressed by any court, contrary to the criteria that is supposed to be evaluated under Trombetta and Youngblood.
 
10.                  The reviewing courts have failed to apply the analysis to properly evaluate the “bad faith and state of mind” requirements set forth by the courts in Richter v. Hickman, 521 F.3d 1222, 1235 (9th Cir. 2008) and United States v. Webster, 497 F. Supp.2d 966, 972 (S.D. Iowa 2007), to the facts of the petitioner’s case, based “on the entire record.” The Federal Court’s reliance on the State Court’s conclusions is in error, because they failed to properly consider the claims and apply the controlling law as outlined hereinabove. And its reliance on the officers testimony that they “did not know the proper procedure to follow to collect the evidence,” is totally ridiculous. Magistrate’s Report at p. 19. These were “19 year veterans with training too numerous to mention,” who at the very least, would have known to ask for help, especially after personally viewing the arson investigator collecting his evidence in sealed containers.
 
11.                  Their explanations do not ring true in light of all the other information in existence. See Objection to Report and Recommendation. For the following reasons, and especially because the courts have failed to evaluate the “state of mind” and “bad faith” requirements correctly as stated in Richter and Webster, this issue is debatable among jurists of reason and should be considered by the court for review.
 
ISSUE-VI         The District Court Erred When It Failed To Apply The Correct Controlling Legal Standard To This Claim And To Correctly Evaluate The Facts And Then Ignored The Petitioner’s Factual Allegations Which Supported Relief.
 
1.                        The Court first erred when it held, apparently without reviewing the petitioner’s Petition and Traverse, that, “Petitioner does not explain how additional testimony from Dr. DeHaan would have allowed him to construct a sufficient argument that would have permitted the state court to ignore the prosecution’s evidence that the door was on fire. Accordingly, petitioner has not shown how any missing testimony prejudiced him in his appeal.” p. 31 Report and Recommendation. (See Attached Exhibit C)
 
2.                        The Court completely ignored the petitioner’s claims contrary, and allegations set forth in his pleadings properly alleging these facts. First in his Petition and again in his Traverse:
 
Petition Dk #12 p. 30-39: “The petitioner was further prejudiced by not being allowed to present facts sufficient to show state witnesses Edith Clarke and Mark Malone’s trial testimony was not credible, possibly tipping the scales in his favor . . .”
 
Travers Dk #26 p. 19: “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.
 
3.                        Besides totally ignoring petitioner’s factual claims concerning necessity of Dr. DeHaan’s missing trial testimony to support his claims of innocence, the Court failed to apply the proper controlling legal standard cited by petitioner found in Britt v. North Carolina, 404 U.S. 226 (1971), and interpreted by the Ninth Circuit in Medera v. Risely, 885 F.2d 646 (9th Cir. 1984). Or even to mention it.
 
4.                        The Britt standard sets forth a two part criterion which is: (1) the value of the transcript to the defendant in connection with the appeal; and (2), the availability of alternative devices that would fulfill the same functions as a transcript. See Cooper v. McGrath, 314 F.Supp.2d 967, 982 (N.D. Cal. 2004).
 
5.                        Petitioner properly argued his need for this information in connection with the appeal, and that no other type of “alternatives” were offered or even acknowledged to exist. In fact, the Court went to the extent of saying that “it did not matter whether or not this testimony existed.” This assessment is totally illogical in light of the subject matter. It sure matters to this petitioner, as it would to any petitioner who was on trial for his life, as petitioner was.
 
6.                        Moreover, what else “matters’ is the Courts’ factual and legal analysis was incorrect, because it failed to apply this analysis to the petitioner facts. Rendering its decisions “clear error” and debatable among jurists of reason. For these reasons, the Court should grant review.
 
ISSUE –VII    The Court Erred When It Failed To Apply The Controlling Analysis Of Sarausade v. Porter, 479 F.3d 671, 678 (9th Cir. 2007), To Properly Evaluate The Insufficiency Of The Evidence Under Jackson V. Virginia, 443 U.S. 307 (1979).
 
1.                        As alleged in the petitioner’s Objection to the Magistrate’s Report and Recommendation, the Court failed to properly apply the test for evaluating a Jackson error under the five part analysis set forth by the court in Sarausad.
 
2.                        Further, it failed to properly apply the criteria set forth in Brown v. Farwell, 525 F.3d 787, 794 (9th Cir. 2008) and Chein v. Shumsky, 373 F.3d 978, 983 (9th Cir. 2004), in evaluating the elements of the crimes to fit the Jackson criteria. This is error because the state courts failed completely to do so, and only used “speculation and conjecture” to assess the elements, without any specific references to petitioner’s actual conduct. See Juan v. Allen, 408 F.3d 1262 (9th Cir. 2005).
 
3.                        No evaluations whatsoever took place by the state or the federal courts to ensure that sufficient evidence existed to support each of the three alternative means charged and submitted to the jury.” See State v. Smith, 159 Wn.2d 778, 790 (2007). This as well constitutes error.
 
4.                        In light of these facts, an improper analysis has taken place to support the convictions. An analysis that should now be undertaken by review by the Ninth Circuit Court of Appeals, since clear error has been committed by the Court below. (See Attached Exhibit-D)
 
CONCLUSION
 
1.                        Petitioner respectfully requests that this Court allow review to take place on these claims, and especially on his claims of psychological instability to properly litigate these issues before this Court, and the failure of the Court to provide an evidentiary hearing to support all these claims. These issues are all debatable among jurists of reason, and the Constitutional claims worthy of review. Because of these facts the petitioner is requesting the issuance of a COA on each of his issues.
 
CERTIFICATE OF SERVICE
 
I, Steven Darby McDonald, do hereby certify that a true and correct copy of the foregoing has been mailed by US Postal Service prepaid to: Rona Larson Assistant Attorney General, PO Box 40116, Olympia, WA 98504 on this 11th day of February 2009.
 
 
Dated: 2/11/09                                                                 ______________________________________
                                                                                  Steven Darby McDonald #703852/C-315
                                                                                  Monroe Correctional Complex/WSR
                                                                                  PO Box 777 Monroe, WA 98272


[1] See Attached Exhibit A.

 

 EXHIBITS

 

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