Mr. Biggs alleged that his trial counsel was ineffective for failing to raise the defense of diminished capacity. The facts and evidence in the record contain sufficient proof of Mr. Biggs inability to distinguish between what he thought and what happened. The Washington State Appellate Court, in finding no prejuduce, relied upon a diminished capacity defense not being available to a first degree rape conviction due to it contains no mens rea element.

The case thus presents the following question

Did the Washington State Appellate Court err in finding that Mr. Biggs was not prejudiced by his trial counsel's failure to raise the defense of diminished capacity when the decision is in conflict with the Ninth Circuit decision.

Mr. Biggs alleged the triai court erred when it found two separate penetrations formed two independent criminal intents which justified a finding that two separate crimes of rape in the first degree were committed. Based upon this finding, Mr. Biggs was ordered to serve a consecutive sentence. In finding no error, the Washington State Appellate Court relied upon Mr. Biggs committing each penetration in separate places, eg. on the bed and on the floor.

The case thus presents the followi ng guestion

Did the trial court err in finding the two separate penetrations constitute two separate crimes?

Did the Washington State Appellate Court err in finding that Mr. Biggs was not prejudiced by his trial counsel's failure to raise the defense of diminished capacity?