In re Pers. Restraint of Colbert
92421-0
| Wash. | Sep 29, 2016Background
- Petitioner Bobby Colbert was convicted in 2005 of second-degree rape (forcible compulsion) and sentenced to an indeterminate 136 months–life; this PRP concerns only that conviction involving victim K.P.
- At trial the jury was instructed that consent is a defense to second-degree rape and that the defendant must establish consent by a preponderance of the evidence; defense objected but the court gave the instruction consistent with then-controlling Washington precedent (Camara).
- Colbert filed a third personal restraint petition in 2013; the Court of Appeals certified the PRP to the Washington Supreme Court after this court decided State v. W.R., which held that requiring the defendant to prove consent by a preponderance in first- and second-degree rape cases violated due process.
- Colbert argued W.R. (1) was a statutory interpretation exempt from the one-year time bar to collateral attack or (2) was a significant change in law that should be applied retroactively under RCW 10.73.100(6).
- The state conceded W.R. was a significant change material to conviction but argued W.R. announced a new constitutional rule not entitled to retroactive application on collateral review; the court therefore analyzed retroactivity under Teague.
- The court concluded W.R. does not apply retroactively on collateral review, held Colbert’s petition time-barred, and denied relief (the opinion did not reach prejudice in the majority opinion).
Issues
| Issue | Petitioner (Colbert) | Respondent (State) | Held |
|---|---|---|---|
| Are Colbert’s claims timely despite the one-year limit because W.R. is a "significant change in the law" under RCW 10.73.100(6)? | W.R. is a significant, material change that warrants retroactive application and therefore overcomes the time bar. | W.R. is a new constitutional rule not entitled to retroactivity on collateral review; the petition is time barred. | The court: W.R. is a significant change but does not apply retroactively; petition is time barred and denied. |
| Did W.R. rest on statutory interpretation (which would be retroactive to enactment) or on constitutional due process? | W.R. should be viewed as statutory interpretation of the 1975 rape reforms, making it retroactive. | W.R. rests on constitutional due process grounds (misallocation of burden) and is not statutory interpretation. | The court: W.R. rests on due process and not on statutory interpretation; Teague retroactivity analysis applies. |
| Is W.R. a "new rule" under Teague (i.e., not dictated by precedent) or one dictated by prior federal precedent? | W.R. is consistent with earlier federal precedent and therefore not a "new" rule for Teague purposes. | W.R. overruled prior Washington cases and thus announced a new rule not dictated by prior precedent. | The court: W.R. announced a new rule (it overruled Camara/Gregory); Teague presumption of nonretroactivity applies. |
| If Teague applies, does W.R. fall within Teague’s exceptions (substantive or watershed procedural) so as to permit retroactivity? | The instructional burden-shift is a fundamental error requiring retroactive application. | W.R. is neither a substantive decriminalization rule nor a watershed procedural rule; Teague exceptions not met. | The court: Teague exceptions not met; W.R. is not retroactive on collateral review. |
Key Cases Cited
- State v. W.R., 181 Wn.2d 757 (2014) (held burden to prove consent by defendant in 1st/2nd degree rape violates due process)
- State v. Camara, 113 Wn.2d 631 (1989) (prior Washington precedent placing burden of proving consent on defendant)
- State v. Gregory, 158 Wn.2d 759 (2006) (reaffirmed Camara prior to being overruled by W.R.)
- In re Personal Restraint of Grasso, 151 Wn.2d 1 (2004) (plurality) (discussed retroactivity where holdings had statutory components)
- In re Personal Restraint of Yung-Cheng Tsai, 183 Wn.2d 91 (2015) (interpreting RCW 10.73.100(6) retroactivity rules and distinguishing statutory vs. constitutional bases)
- Teague v. Lane, 489 U.S. 288 (1989) (framework for retroactivity of new constitutional rules on collateral review)
- Martin v. Ohio, 480 U.S. 228 (1987) (Supreme Court precedent concerning when a State may place burden of proof on defendant for affirmative defenses)