Thomas B. Armstrong v. James Blodgett, Superintendent, Washington State Penitentiary

967 F.2d 583 NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. Thomas B. ARMSTRONG, Petitioner-Appellant, v. James BLODGETT, Superintendent, Washington State Penitentiary, Respondent-Appellee. No. 90-35581. United States Court of Appeals, Ninth Circuit. Submitted June 5, 1992. * Decided June 15, 1992. Before EUGENE A. WRIGHT, CANBY and WIGGINS, Circuit Judges. 1 MEMORANDUM ** 2 Thomas B. Armstrong, III challenges the constitutionality of the Washington felony-murder statute under which he was convicted. Our review is de novo. United States v. Savinovich, 845 F.2d 834, 839 (9th Cir.), cert. denied, 488 U.S. 943 (1988). DISCUSSION 3 Armstrong contends that section 9A.32.050(1)(b) 1 of the Washington Revised Code is unconstitutional on its face. According to Armstrong, the statute merges the underlying assault offense into the homicide and thereby relieves the state of its burden of proving the mental state for second-degree murder. Armstrong accordingly concludes that the…