WSR 14-01-060

RULES OF COURT

[December 12, 2013]

The Rules Committee having recommended the adoption of the proposed amendments to RAP 16.3 - Personal Restraint Petition - Generally, RAP 16.4 - Personal Restraint Petition - Grounds for Remedy, RAP 16.7 - Personal Restraint Petition - Form of Petition, RAP 16.8 - Personal Restraint Petition - Filing and Service; RAP 16.8A - Personal Restraint Petition - Preliminary Review by the Court, RAP 16.9 - Personal Restraint Petition - Response to Petition, RAP 16.11 - Personal Restraint Petition - Consideration of Petition, RAP 16.12 - Personal Restraint Petition - Superior Court Hearing, and RAP 16.13 - Personal Restrain Petition - Procedure After Reference Hearing, and the Court having approved the proposed amendments for publication;

Now, therefore, it is hereby

(a) That pursuant to the provisions of GR 9(g), the proposed amendments as shown below are to be published for comment in the Washington Reports, Washington Register, Washington State Bar Association and Administrative Office of the Court's websites in January, 2014.

(b) The purpose statement as required by GR 9(e), is published solely for the information of the Bench, Bar and other interested parties.

(c) Comments are to be submitted to the Clerk of the Supreme Court by either U.S. Mail or Internet E-Mail by no later than April 30, 2014. Comments may be sent to the following addresses: P.O. Box 40929, Olympia, Washington 98504-0929, or Denise.Foster@courts.wa.gov. Comments submitted by e-mail message must be limited to 1500 words.

DATED at Olympia, Washington this 12th Day of December, 2013.

Purpose: This amendment is intended to make the rule clearer, and thus easier to understand, particularly for the many pro se petitioners that seek relief from restraint under these rules. Because a newly proposed rule 16.8A will set forth the circumstances under which a petition filed in the Supreme Court will be transferred to the Court of Appeals, the sentence regarding the Supreme Court "ordinarily" transferring the petition should be omitted, as it is not particularly helpful.

(a) Habeas Corpus and Postconviction Relief. Procedure for Relief from Restraint. Rules 16.3 through 16.15 and rules 16.24 through 16.27 establish a single procedure for original proceedings in the appellate court to obtain relief formerly available by a petition for writ of habeas corpus or by an application for post-conviction relief. from restraint.

(b) Former Procedure Superseded. The procedure established by rules 16.3 through 16.15 and rules 16.24 through 16.27 for a personal restraint petition supersedes the appellate procedure formerly available for a petition for writ of habeas corpus and for an application for post-conviction relief, unless one of these rules specifically indicates to the contrary. These rules do not supersede and do not apply to habeas corpus proceedings initiated in the superior court.

(c) Original Appellate Court Jurisdiction. The Supreme Court and the Court of Appeals have original concurrent jurisdiction in personal restraint petition proceedings in which the death penalty has not been decreed. The Supreme Court will ordinarily exercise its jurisdiction by transferring the petition to the Court of Appeals. The Supreme Court has exclusive original jurisdiction in personal restraint proceedings in which the petitioner is under a sentence of death.

Purpose: RCW 10.73.130 provides that RCW 10.73.090 and 10.73.100 apply to petitions filed after July 23, 1989. The current reference to RCW 10.73.130 is no longer necessary because there would not be any petitions pending that were filed before July 23, 1989.

(a) Generally. Except as restricted by section (d), the appellate court will grant appropriate relief to a petitioner if the petitioner is under a "restraint" as defined in section (b) and the petitioner's restraint is unlawful for one or more of the reasons defined in section (c).

(b) Restraint. A petitioner is under a "restraint" if the petitioner has limited freedom because of a court decision in a civil or criminal proceeding, the petitioner is confined, the petitioner is subject to imminent confinement, or the petitioner is under some other disability resulting from a judgment or sentence in a criminal case.

(c) Unlawful Nature of Restraint. The restraint must be unlawful for one more of the following reasons:

(1) The decision in a civil or criminal proceeding was entered without jurisdiction over the person of the petitioner or the subject matter; or

(2) The conviction was obtained or the sentence or other order entered in a criminal proceeding or civil proceeding instituted by the state or local government was imposed or entered in violation of the Constitution of the United States or the Constitution or laws of the State of Washington; or

(3) Material facts exist which have not been previously presented and heard, which in the interest of justice require vacation of the conviction, sentence or other order entered in a criminal proceeding or civil proceeding instituted by the state or local government; or

(4) There has been a significant change in the law, whether substantive or procedural, which is material to the conviction, sentence, or other order entered in a criminal proceeding or a civil proceeding instituted by the state or local government, and sufficient reasons exist to require retroactive application of the changed legal standard; or

(5) Other grounds exist for a collateral attack upon a judgment in a criminal proceeding or civil proceeding instituted by the state or local government; or

(6) The conditions or manner of the restraint of petitioner are in violation of the Constitution of the United States or the Constitution or laws of the State of Washington; or

(7) Other grounds exist to challenge the legality of the restraint of petitioner.

(d) Restrictions. The appellate court will only grant relief by a personal restraint petition if other remedies which may be available to petitioner are inadequate under the circumstances and if such relief may be granted under RCW 10.73.090 or .100 and .130. No more than one petition for similar relief on behalf of the same petitioner will be entertained without good cause shown.

Purpose: The proposed amendment to 16.7 (a)(2) is intended to more accurately reflect current practice: the courts do not require petitioners to show why other remedies are inadequate. The addition of subsection (3) is intended to provide a mechanism by which pro se petitioners are able to obtain court documents, based upon on an initial proposal by the Washington Association of Criminal Defense Lawyers (WACDL), and a counterproposal by the Washington Association of Prosecuting Attorneys (WAPA). Eliminating the notary requirement in current subsection (5) will be helpful to incarcerated petitioners, who often have no access to a notary. A declaration under penalty of perjury is a more appropriate requirement.

(a) Generally. Under the titles indicated, the petition should set forth:

(1) Status of Petitioner. The restraint on petitioner; the place where petitioner is held in custody, if confined; the judgment, sentence, or other order or authority upon which petitioners restraint is based, identified by date of entry, court, and cause number; any appeals taken from that judgment, sentence or order; and a statement of each other petition or collateral attack as that term is defined in RCW 10.73.090, whether filed in federal court or state court, filed with regard to the same allegedly unlawful restraint, identified by the date filed, the court, the disposition made by the court, and the date of disposition.

(2) Grounds for Relief. A statement of (i) the facts upon which the claim of unlawful restraint of petitioner is based and the evidence available to support the factual allegations, (ii) why other remedies are inadequate, and (iii) why the petitioners restraint is unlawful for one or more of the reasons specified in rule 16.4(c). Legal argument and authorities may be included in the petition, or submitted in a separate brief as provided in rule 16.10(a).

(3) Citations to Court Documents. If some of the evidence supporting the factual allegations is contained in the files of a trial or appellate court, the petition should identify the documents needed for review and the case numbers under which they can be found. The appellate court may order that any court documents identified for review be transferred or transmitted to the court.

(4) Statement of Finances. If petitioner is unable to pay the filing fee or fees of counsel, a request should be included for waiver of the filing fee and for the appointment of counsel at public expense. The request should be supported by a statement of petitioner's total assets and liabilities.

(4) (5) Request for Relief. The relief petitioner wants.

(5) (6) Oath. If a notary is available, The petition must be signed by the petitioner or his attorney and verified substantially as follows under penalty of perjury. The verification may be in the following form:

After first being duly sown, on oath, I depose and say: I declare under penalty of perjury under the laws of the State of Washington that I am the petitioner, that I have read the petition, know its contents, and I believe the petition is true

or

After first being duly sown, on oath, I depose and say: I declare under penalty of perjury under the laws of the State of Washington that I am the attorney for the petitioner, that I have read the petition, know its contents, and I believe the petition is true.

If a notary is available and a petition is filed that is not verified, the appellate court will return the petition for verified signature and advise the petitioner's custodian to make a notary available verification.

(6) (7) Verification. In all cases where the restraint is the result of a criminal proceeding and the petition is prepared by the petitioner's attorney, the petitioner must file with the court no later than 30 days after the petition was received by the court a document that substantially complies with the following form:

I declare that I have received a copy of the petition prepared by my attorney and that I consent to the petition being filed on my behalf.

Dated this ___ [date]_______.

____________________________________________

[Signature]

If the petitioner has been declared incompetent, the verification may be filed by the guardian ad litem. If a petition has been filed to determine competency, the verification procedure shall be tolled until competency is determined.

(b) Standard Form. The clerk of the appellate court will make the standard form of petition available to persons who are confined in state institutions and to others who may request the form.

(c) Length of Petition. The petition should not exceed 50 pages.

Purpose: This amendment is intended to ensure that petitions that contain only technical deficiencies are not rejected for filing, possibly depriving an incarcerated pro se petitioner of the opportunity to file a timely petition. Pursuant to the proposed amendment, a petition with a technical deficiency should be filed and the clerk should direct the petitioner to correct the deficiency within 60 days. The addition of new subsection (c) is not intended to apply to a petition that is wholly deficient, such as a petition that fails to set forth any basis for relief. Such a petition should be filed and dismissed as frivolous pursuant to Rule 16.8A, as proposed by the subcommittee. The addition of new subsection (e) is intended to reflect the current state of the law pursuant to In re Bonds, 165 Wn.2d 135 (2008), which gives the court authority to accept timely amendments, but that new grounds raised for the first time in an amended petition that is filed outside the one-year time bar do not relate back to the original petition, and will be time-barred unless they fall within an exception to the time bar.

(a) Filing Fee. A personal restraint petition will be filed by the clerk of the appellate court only if the statutory filing fee is paid, unless the appellate court determines that the petitioner is unable to pay the filing fee indigent. The statute requiring governing payment of a fee for filing a petition for writ of habeas corpus is controlling.

(b) Filing in Court of Appeals. A personal restraint petition filed in the Court of Appeals must be filed in the division which that includes the superior court entering the decision on the basis of which petitioner is held in custody or, if petitioner is not being held in custody on the basis of a decision, in the division in which the petitioner is located.

(d) Service of Petition. If petitioner's restraint is imposed by the state or local government, the clerk of the appellate court will reproduce a copy of the petition and serve the petition on the officer or agency under a duty to respond to the petition. If petitioner's restraint is imposed by a person or agency other than the state or local government, the petitioner must prepare and serve a copy of the petition on the proper respondent.

Purpose: This new rule is intended to more clearly set forth the current practice of the courts in initially reviewing petitions. Petitions that are frivolous on their face, or are clearly untimely or successive, are summarily dismissed by the appellate court on initial review. Subsection (c) is intended to provide a summary mechanism for the appellate court to remand a collateral attack that has been improperly transferred to the appellate court pursuant to CrR 7.8 (c)(2). It would be unfair to require petitioners to pay a filing fee in such circumstances. If the petition is not dismissed as clearly frivolous or clearly barred, and not transferred back to the trial court, the court will enter an order requesting a response from the State.

Purpose: This amendment to rule 16.9(a) is intended to more accurately reflect current practice. The State's response to a petition will be due 60 days after the court has entered an order requesting a response, which allows time for the preliminary review set forth in proposed rule 16.8A to occur. New subsection (b) provides a mechanism for the court to require the respondent to admit or deny a specific allegation, at the court's discretion after the time for filing a response has passed. Some claims, such as claims that the State withheld material exculpatory evidence, could be more expeditiously resolved by an order to admit or deny an allegation, rather than referring the matter for a superior court reference hearing. The respondent would not be required to admit or deny specific allegations unless directed to do so by the court. As formulated, this mechanism can be utilized in the appropriate circumstances at the court's discretion.

(a) Generally. The respondent must serve and file a any response within 60 days after the petition is served the court requests that a response be filed, unless the time is extended by the commissioner or clerk for good cause shown, or unless the court can determine without requiring a response that the petition should be dismissed under RCW 10.73.090 or RCW 10.73.140. The response must answer the allegations in the petition. The response must state the authority for the restraint of petitioner by respondent and, if the authority is in writing, include a conformed copy of the writing. If an allegation in the petition can be answered by reference to a record of another proceeding, the response should so indicate and include a copy of those parts of the record that are relevant. Respondent should also identify in the response all material disputed questions of fact.

Purpose: This amendment is intended to clarify the determination that is made by the court after the State has responded to a petition. While some petitions are frivolous on their face, and should be summarily dismissed pursuant to RCW 10.73.140, this rule, and newly proposed RAP 16.8A, other petitions may reveal themselves to be frivolous only after the State has provided its response. For example, a claim that a defendant's offender score was miscalculated may be shown to be frivolous once the State provides the plea and sentencing documentation. The rule as formulated makes it clear that such petitions may be decided by the Chief Judge without referring the petition to a panel of judges.

(a) Generally. The Chief Judge will consider the petition promptly after the time has expired to file petitioner's reply brief. The Chief Judge determines at the initial consideration if the petition will be retained by the appellate court for determination on the merits or transferred to a superior court for determination on the merits or for a reference hearing. For the purpose of rules in this Title 16, "Chief Judge" includes "Acting Chief Judge."

(b) Determination by Appellate Court. The Chief Judge determines at the initial consideration of the petition the steps necessary to properly decide on the merits the issues raised by the petition. If, after consideration of the response and any reply, the Chief Judge determines that the issues presented are frivolous, the Chief Judge will dismiss the petition. If the petition is not frivolous and can be determined solely on the record, the Chief Judge will refer the petition to a panel of judges for determination on the merits. If the petition cannot be determined solely on the record, the Chief Judge will transfer the petition to a superior court for a determination on the merits or for a reference hearing. The Chief Judge may enter other orders necessary to obtain a prompt determination of the petition on the merits.

(c) Oral Argument. Decisions of the Chief Judge will be made without oral argument. If a petition is to be decided on the merits by a panel of judges, the appellate court clerk will set the petition for consideration by the panel of judges, with or without oral argument. If oral argument is directed, the clerk will notify the parties of the date set for oral argument.

Purpose: Parties should have a right to reasonable discovery as to the issues to be litigated in a reference hearing, and thus this amendment deletes the "good cause" requirement in the current formulation. The amendment explicitly sets forth the right to counsel in a reference hearing. However, the right to counsel is limited in some cases by RCW 10.73.140, and thus the proposed amendment acknowledges that the right to counsel is "to the extent authorized by statute."

If the appellate court transfers the petition to a superior court, the transfer will be to the superior court for the county in which the decision was made resulting in the restraint of petitioner or, if petitioner is not being restrained on the basis of a decision, in the superior court in the county in which petitioner is located. If the respondent is represented by the Attorney General, the prosecuting attorney, or a municipal attorney, respondent must take steps to obtain a prompt evidentiary hearing and must serve notice of the date set for hearing on all other parties. The parties, on motion, and for good cause shown will be granted reasonable pretrial discovery. Each party has the right to subpoena witnesses. The hearing shall be held before a judge who was not involved in the challenged proceedings. The petitioner has the right to be present at the hearing, and the right to cross-examine adverse witnesses, and the right to counsel to the extent authorized by statute. The Rules of Evidence apply at the hearing. Upon the conclusion of the hearing, if the case has been transferred for a reference hearing, the superior court shall enter findings of fact and have the findings and all appellate files forwarded to the appellate court. Upon the conclusion of the hearing if the case has been transferred for a determination on the merits, the superior court shall enter findings of fact and conclusions of law and an order deciding the petition.

Purpose: The proposed amendment explicitly provides that when preparation of the transcript of a reference hearing has been ordered, it should be prepared at public expense when the petitioner has been determined to be indigent.

After a reference hearing and the findings of fact and appellate court files have been returned to the appellate court, the Chief Judge will dismiss the petition if the issues presented are frivolous. If the petition is not frivolous, the Chief Judge will refer the petition to a panel of judges for determination on the merits. The appellate court may, on motion of a party, order the preparation of and transmittal to the appellate court of a part or all of the record of the reference proceeding. The appellate court order will define at whose expense the record is prepared. The record will be prepared at public expense where the petitioner is indigent, as set forth in rule 16.15(h). Oral argument is governed by rule 16.11(c).