Demicko Billie Thomas v. MAGGIE MILLER-STOUT, Warden of Airway Heights Correctional Center

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DEMICKO BILLIE THOMAS,
Petitioner-Appellant,
v.
MAGGIE MILLER-STOUT, Warden of
Airway Heights Correctional Center, and
the Washington State Department of
Corrections,
Respondent-Appellee.
No. 18-35284
D.C. No. 2:11-cv-02186-RSM
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
Ricardo S. Martinez, District Judge, Presiding
Submitted August 28, 2019**
Seattle, Washington
Before: HAWKINS, McKEOWN, and BYBEE, Circuit Judges.
Washington state prisoner Demicko Billie Thomas (“Thomas”) appeals the
district court’s denial of his federal habeas petition which challenged his convictions
FILED
AUG 30 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent except
as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).

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and sentence for firearm enhancements imposed in connection with his robbery of two
jewelry stores in 2002. We affirm.
The Washington state court did not unreasonably determine that sufficient
evidence supported the imposition of the firearm enhancement with respect to the
second robbery. The jury instructions mistakenly required proof the weapon was
operable, which was not required under Washington law. See State v. Wade, 138 P.3d
168, 176 (Wash. Ct. App. 2006). The Supreme Court has held that “when a jury
instruction sets forth all the elements of the charged crime but incorrectly adds one
more element, a sufficiency challenge should be assessed against the elements of the
charged crime, not against the erroneously heightened command in the jury
instruction.” Musacchio v. United States, 136 S. Ct. 709, 715 (2016) (emphasis
added). Thus, the state court reasonably concluded the government was not required
to prove the weapon was operable despite the erroneous instruction.
The state court also reasonably concluded there was sufficient evidence that
Thomas had used a real weapon in the commission of the robbery, that is, a weapon
“capable of discharging a projectile by an explosive such as gunpowder.” During trial
testimony, a victim described the weapon as “a large hand held gun, it was silver,
aluminum silver color. The barrel of the gun was about that big from what I
remember and had a very dark tunnel-looking hole in the middle.” She also testified
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that when Thomas held the gun to her back it “felt very heavy, very strong.” A second
witness described the weapon similarly and testified that Thomas told them, “I don’t
want to hurt you,” which the court of appeal noted supported an inference that he was
“capable of hurting them with the weapon he held.” Viewing all reasonable inferences
in the light most favorable to the prosecution, there was sufficient testimony for a
rational juror to infer that the gun was real. Jackson v. Virginia, 443 U.S. 307, 324
(1979).
We decline to expand the Certificate of Appealability to include Thomas’s
claim that the imposition of the firearm enhancement violates the Double Jeopardy
Clause. We “look to the district court’s application of AEDPA to petitioner’s
constitutional claims and ask whether that resolution was debatable amongst jurists
of reason.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). Here, the district court
properly evaluated Thomas’s claims under applicable Supreme Court law. See
Missouri v. Hunter, 459 U.S. 359, 368–69 (1983) (no Double Jeopardy violation when
“a legislature specifically authorizes cumulative punishment under two statutes,”
because “regardless of whether those two statutes proscribe the ‘same’ conduct under
Blockburger, a court's task of statutory construction is at an end and the prosecutor
may seek and the trial court or jury may impose cumulative punishment under such
statutes in a single trial”).
AFFIRMED.
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