UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
STEVEN DARBY McDONALD,
MOTION FOR REHEARING EN BANC WITH CITATIONS OF AUTHORITY AND REQUEST FOR APPOINTMENT OF COUNSEL
COMES NOW the appellant and respectfully requests that this Honorable court GRANT a Rehearing EN BANC with the appointment of counsel to properly present these issues before this Court due to Mr. McDonald’s medically documented emotional and physical abnormalities.
1. On 4/2/10, the Court denied the appellant’s Request for a Certificate of Appealability. By doing so, it has condoned some of the most outrageous and blatant acts of abuse that have ever taken place while a pro se litigant represented himself in court.
2. Because of his fears that this contagion complained of in all previous courts could also affect members of this Court, based upon the advice of others, he mistakenly recited several internet publications involving recent judicial wrongdoing. This has only detracted from his issues he correctly presented before this Court, and caused it to only focus on this inflammatory material. See (Dkt 93 p. 5 Request for COA filed in the District Court). Not the Amended COA filed before this Court (Dkt 4).
3. This information was not presented as an insult to the members of this Court, but only as a possible way to exclude any further taint from occurring. This course of action has backfired, and his emotional rage over what has occurred has clouded his ability to properly assess this situation. These things, taken in conjunction with his medically documented psychological issues, have caused him to act irrationally. 
4. Appellant now prays that this court will forgive him. He apologizes to the members of this Honorable Court, and further requests their forgiveness for his transgression and misuse of this information which have absolutely no bearing on these proceedings.
5. Appellant further prays that this Court will now review his issues to see what he has had to endure that led him to become so embittered and hateful toward the judicial system.
6. In 1996 when he was originally arrested for this offense, the alleged “burning of a doormat that discolored a door”, see State v. McDonald, 143 Wn. 2d 506, 508 (2001), he was receiving 100% psychological disability payments from the Social Security Administration. Still to date he is medically diagnosed as being psychologically disabled, with a WA/DOC medical classification of Seriously Ill Mentally Ill Offender (SMIO). Including “Organic Brain Damage” and “Infarcts to the Region of his Lacuna”. (See Dkt 40-43; 74-75, 78).
7. In light of this information, he is requesting some latitude by this court in its decision-making process and use of the inflammatory facts.
8. During the initial trial of this case, the court informed him that the Washington State Judiciary had been instructed to apply a new standard of law to people like him when deciding their defense motions. This new standard was as follows:
We just finished a great Judge’s Conference in Wenatchee, and if you have ever had the opportunity to hear Mr. Whitebread talk about the Constitution, prisoners now have two rights, the right to go to jail and the right to stay there until their term is up. (See Dkt 93)
9. When this court denied his request for a COA, it implicitly condoned this abhorrent standard that is admittedly being instructed throughout Washington State at its Judicial Conferences. Appellant knows from his review of this Court’s decisions, that this is not the proper standard to be applied. Yet again it was during his retrial it was hung out on a banner in the courtroom.
10. Review is being sought to correct these types of abuses as set forth in his district court COA (Dkt 93), Petition and Supporting Appendix Sections (Dkt 1-12) and Traverse (Dkt 29).
11. This Court’s denial conflicts with its own circuit precedent, other circuit case law, as well as United States Supreme Court case law on the following topics:
a. Appellant filed a Request for Evidentiary Hearing with the Appointment of Counsel to obtain additional supporting facts needed to prove his claims, on the authority of this Court’s holdings in both Totten v. Markle, 137 F.3d 1172, 1176 (9th Cir. 1989) and Griffin v. Johnson, 350 F. 3d 956, 966 (9th Cir. 2003). (Dkt 40, 47 Motions). Yet despite the overwhelming facts adduced to obtain a hearing, they have been ignored and not properly considered under these authorities. Which had they, it would have required a remand for a hearing on the missing trial testimony of Dr. DeHaan and the production of trial exhibit #45 which showed that the motel room door had never been on fire.
b. This Court erred when it overlooked the appellant’s request for the appointment of counsel to assist him in obtaining additional supporting documents that the State has been refusing to turn over which would support his claims, and hold an evidentiary hearing, on his claim that he should have been allowed to amend his petition with Ground VI despite it being 133 days late. Appellant claimed that he had been confined to a psychiatric ward for a year and a half during which time it would have extended his time period to file because it was during the appellant process. He also provided a wealth of medical records to support his claims. (Dkt 47). Yet this court ignored its own holding in Whalen/Hunt v. Early, 233 F.3d 1145, 1148 (9th. Cir.2000) (en banc) and Laws v. Lamarque, 251 F.3d 919, 922-24 (9th. Cir. 2003), which hold he is entitled to tolling if he is mentally unstable during this period of time.
c. The Court has also ignored its prior precedent when it failed to appoint counsel or hold an evidentiary hearing to consider his seven (7) Declarations attesting to his abnormal psychological states, many commitments to a psychiatric ward, medications, and WS/DOC medical classifications as being a Seriously Ill Mental Offender (SMIO): None of which were refuted or addressed by the State in any way as required by this Court’s holding in Allen v. Calderon, 408, F.3d 1150, 1153 (9th Cir. 2005), when refuting this claim. (See Dkt 73 Motion)
d. The Washington State Judiciary had adopted a new “constitutional standard”, advanced at its Judicial Conferences by their Judicial Instructor, Mr. Whitebread. It is being applied indiscriminately to people like appellant, who have no financial means in the community, to send them to prison “until their time is up”. It is called the “Whitebread Doctrine of Law” by the prison community. Because of its admitted application, appellant moved for a Change of Venue in this district court which was denied. Dkt 50, 54, 59) In effect, condoning this application giving pro se litigants “only two rights, the right to go to jail and the “right” to stay there until their term is up.” Appellant is requesting that this Court inform the entire Washington State Judiciary what the correct constitutional standard is, by published opinion on this issue.
e. Not one court has addressed any of appellant’s Federal Constitutional Claims, despite the attorney general’s admissions that all his claims had been fully exhausted. Specifically this Court’s denial is in direct conflict with its own precedent established in both Frantz v. Hazey, 533 F. 3d 724 (9th Cir. 2008)(en banc), and Lambert v. Blodgett, 393 F. 3d 943, 969 n. 15 (9th Cir. 2004), where this Court commented upon the necessity of completely addressing fully exhausted federal constitutional claims. Moreover, its decision also conflicts with the case cited by the appellant for this proposition in Stewart v. Erwin, 503 F. 3d 488, 495 (9th. Cir. 2007), where the court required that these issues be fully addressed:
In this case, when 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 statute, 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 Frantz and Lambert, supra. None of these types of analysis ever took place at any of the reviewing courts, including this one, while on appeal.
f. This Court’s decision also conflicts with its recent decision in Frantz because in Frantz it held that the harmless error analysis requirement of finding prejudice in a waiver of counsel claim, as appellant has set forth, does not apply. See Frantz, 533 F. 3d at 735 n. 13. See also, United States v. Gonzales-Lopez, 126 S. Ct. 2557, 2564 (20060 (listing circumstances where no prejudice needs to be alleged or proven). Yet in the appellant’s case, the lower courts applied this standard which was also affirmed by the district court which in turn rendered their decisions “contrary to federal law” because they have each applied “the incorrect constitutional standard as set forth by the United States Supreme Court.” See Price v. Vincent, 538 U.S. 634, 640 (2003). (A decision is contrary to clearly established law if it applies a rule that contradicts the governing law set forth in the following cases: Flanagan v. United States, 465 US 259, 268 (1994); Entsminger v. Iowa, 386 US. 748 (1967) and Gideon v. Wainwright, 372 US 335 (1963).
f(1) Moreover, the federal court has erred when it “speculated” that the trial court judge would have appointed a different attorney than the original conflict attorney, Gary Gear, when there was no indication whatsoever of this ever occurring in the record. In fact, just the opposite occurred each time Mr. McDonald appeared in the courtroom, even in light of his protestations to the appointment of Mr. Gear because the initial conflict of interest had resulted in the reversal of his conviction by the Washington State Supreme Court. And Mr. Gear’s letter which was read into the court record stating that he would not represent the appellant again:
. . . I no longer will 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? See 9/19/01 Hearnig p. 33-38.
During the October 3rd 2001 hearing appellant again requested the appointment of counsel. The prosecution replied that he was “not entitled to counsel of your choice” when he was trying to have the court appoint someone different than Mr. Gear. Again during the October 4, 2001 hearing the court tried to force the appointment of Mr. Gear p. 2-3. Which the appellant refused because of “both his letters indicating that he did not want to represent him because the prosecution would appeal.” 4-15. All this information was ignored by all the reviewing courts. See State v. McDonald, 143 Wn. 2d 506 (2001) for the depth of the conflict.
g. This court has ignored the standards it set forth in Richter v. Hickman, 521 F. 3d 1222, 1235 (9th Cir. 2008), which is applied within our circuit, United States v. Webster, 497 F.Supp.2d 966, 972 (S.D. Iowa 2007), when it did not adhere to its precedence in the evaluation of the “bad faith and the state of mind” criteria it set forth in the proper evaluating of whether or not, based on all the evidence, the police officers improperly collected and processed the most important inculpatory evidence against the defendant, which in this case they admittedly testified they had destroyed. This left the defendant with no way to refute their claims at trial that his clothing had been impregnated with gasoline vapors, and because they allegedly lacked arson evidence collection training, they improperly collected, packaged, and processed it to the crime lab. All this, despite their admittedly watching the on-scene investigator collecting the arson evidence in sealed containers. In addition to their deliberately waiting over two (2) months to send it to the crime lab for processing; claiming they were unaware gasoline “evaporates”; running off both the arson investigator and fire chief from inside appellant’s room (neither of whom detected the odor of gasoline on him or inside of his room); and not collecting vital evidence, his tennis shoes, etc., which according to both the prosecution and defense experts, could have supported his innocence.
g.(1) Moreover, this Court has ignored, along with all the reviewing courts, appellant’s claim that this evidence was not subject to the bad faith requirements of Arizona v. Youngblood, 488 U.S. 51, 58 (1988), because this evidence was materially exculpatory evidence and the police officer knew it. Thus had a “duty not to destroy it” because they knew they were going to be using it at trial to convict appellant. See, United States v. Ramirez-Lopez, 315 F.3d 1143, 1165, n.6 (9th Cir.2003) and United States v. Booth, 309 F.3d 566, 574 (9th Cir.2002). Yet at the August 29, 2001 Suppression Hearing on this issue, the prosecution claimed just the opposite to mislead the court:
In other words, they [Officer Lindberg and Detective Ruxton] didn’t actually know what it had on it [if gasoline was on his items], so it doesn’t fall under the exculpatory standard. No showing by the defense of bad faith with respect to the presentation of those particular items. No showing that Detective Ruxton failed to follow any particular procedures that were required of him, and therefore, the defense fails to meet its burden on this issue.
The Court: I agree. (See August 29, 2001 p. 65-67 Petitioner’s Appendix Section (EP 356-357))
These alleged “facts’ completely ignore the true and accurate facts that were known to all these parties as supported by their very own police reports of the incident:
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 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 of 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 of some type of petroleum product.”
5. Detailed Incident Report: “I told Mr. McDonald that his person smells strongly of what is believed to be gasoline.” See Petitioner’s Appendix Section (EP 580-599).
Because of these true facts known to the police officers, and despite the way the prosecution deliberately mislead the court on this issue, this critical evidence was material exculpatory evidence within the meaning of United States v. Bagley, 473 U.S. 667, 676 (1985) and United States v. Agurs, 427 US 97, 110 (1976) standards. It was “material to the guilt or the innocence of the defendant.” Bagley, 473 US at 676-78; Benn v. Lambert, 283 F. 3d 1040, 1052 (9th Cir. 2002). And therefore, should not have been overlooked by this Court.
h. This Court has failed to apply its standards set for the proper evaluation of insufficiency of the evidence claims, when the State has charged multiple alternative means for committing the offense. See State v. Smith, 159 Wn.2d 778, 790 (2007) for state explanation on proof required to support each alternative means. Accord, Jackson v. Virginia, 443 U.S. 307 (1979). To accurately assess these elements, the analysis the reviewing courts are supposed to follow, is “some part” of a five part test set forth in Sarauade v. Porter, 479 F.3d 671, 678 (9th Cir. 2007). Yet again, not one reviewing court has done so. In fact, the reviewing courts have gone out of their way to completely ignore any comment on any of the appellant’s proofs that support his claims that the evidence did not meet the required specificity. Under his sentencing scheme, all the elements for all the alternative means charged must be supported beyond a reasonable doubt. Smith, supra. These issues and the elements have been set forth by him in his Objection to the Magistrate’s Report and Recommendation (Dkt 81 p. 20-25). Yet not one court has commented on any of these valid proofs that the evidence does not meet the required level. No reviewing court has given any “weight” to any of his presented issues, or complied with the requirements of Sarauade by reviewing the “record as a whole”. Id.
Also ignored by this court is its holdings set forth in both Juan v. Allen, 408 F.3d 1262 (9th Cir. 2005) and Chein v. Shumsky, 373 F. 3d 978, 98d3 (9th Cir. 2004) where this Court clearly stated that the reviewing courts must “analyze the substantive elements of the crime.” Yet again, this criterion was not enforced by this Court in this case.
i. The Court has also ignored its holding in Madera v. Risely, 885 F. 2d 684 (9th Cir. 1989), where it set forth the requirements that in order for missing trial transcript testimony to be essential, two factors must be present and alleged: (1) the value of the transcripts to the appellant must be determined; and (2) the availability of alternative devices that would fulfill the same function must be considered, in order to comply with the mandate of Britt v. North Carolina, 404 U.S. 226, 227 (1971); Madera, 885 F. 2d at 648. This evaluation was never conducted by any reviewing court, despite both appellant and his lead defense witness, Dr. John DeHaan’s sworn affidavits attesting that his trial testimony was no longer part of the record on appeal, that concerned the lack of damage to the surface of the motel room door, and whether or not it had ever been on fire:
COUNSEL’S AFFIDAVIT: 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 . . . 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. (See Affidavit of Counsel (EP 409-410).)
DR. JOHN DEHAAN’S AFFIDAVIT: I can find no mention of the questions that I recall being asked during the proceedings. (EP 414)
The reviewing courts have ignored this sworn testimony and even have gone to the extent to fault the appellant for not “showing prejudice” in his claim. Again ignoring the fact that he had alleged prejudice when he claimed that he could not properly argue on direct appeal his insufficiency of the evidence claim without this supporting evidence:
PETITION: The petitioner was further prejudiced by not being allowed to present facts sufficient to show state witness Edith Clarke and Mark Malone’s trial testimony was not credible, possibly tipping the scales in his favor. (Mr. Malone’s Arson Report failed to mention that the motel room door had even been on fire.)
TRAVERSE: The petitioner was prejudiced by not being allowed to present all the facts to support the insufficiency of the evidence on all of the three (3) alternative legal theories charged in the Information.
This information was absolutely critical to the defense’s contention that the door had never been on fire and flames had not entered into Mrs. Clarkes’ motel room (negating an essential element of the crime). Nor had any “damage” occurred to the door as defined by statute. See the remainder of these supporting facts in appellant’s Objection to the Magistrate’s report and COA filed in the district court. (Dkt 81 and 93). (See also Dkt 12 p. 30-39 Petition and Dkt 26 p. 19 Traverse).
12. Appellant requests that this Honorable Court not ignore these blatant and outrageous violations of federal constitutional law, based upon the same flawed logic that appellant initially used when he incorporated the inflammatory materials into his COA filed before the district court: Emotion. Something that is not supposed to be weighed during the review process.
13. A manifest of injustice has occurred. A man has been wrongly convicted by deliberate State action to cause such, and sentenced to a mandatory life sentence. This Court should address these issues and set the record straight.
Steven Darby McDonald #703852/B-417
Monroe Correctional Complex/WSR
PO Box 777
Monroe, WA 98272
CERTIFICATE OF SERVICE
I, Steven Darby McDonald, do hereby certify that a true and correct copy of the foregoing has been mailed prepaid by U.S. Postal Service to: Ronda Larson, Assistant Attorney General, PO Box 40116, Olympia, WA 98504 on this 8th day of April, 2010.
I declare under penalty of perjury of the State of Washington that the foregoing is true and correct.
Steven Darby McDonald #703852/B-417
 Appellant is requesting the appointment of counsel because of his long history of physical and psychological problems as shown to exist in the medical records attached to his motions for the appointments filed in the district court, and supporting Declarations. (Dkt 40-43; 74-75, 79, 82, 89, 90, 98).