In re Personal Restraint of Hankerson
- Reporters:
- ,
- Before:
- Madsen (en banc)
MADSEN, J.
The Court of Appeals dismissed Gerald Hankerson‘s personal restraint petition because it was filed after the one-year time limit of
We hold that if a personal restraint petition with multiple claims is filed after the one year period expires, and the court determines that at least one of the claims is time barred, the petition must be dismissed. The court will not analyze each claim that is raised in order to advise which claims are time barred and which are not.
FACTS
Hankerson and codefendant Alvin Mitchell were tried together for the aggravated first degree murder of Mr. Nai Vang Saeturn. Hankerson testified at trial, but Mitchell did not. Over Hankerson‘s objection, the trial court admitted, as statements against interest, the testimony of a witness whо repeated Mitchell‘s out of court declarations that incriminated both defendants. The jury was given instructions on accomplice liability. Both defendants were convicted of aggravated first degree murder and sentenced to life in prison without the possibility of parole. Their convictions were affirmed in State v. Mitchell, 117 Wash.2d 521, 817 P.2d 398 (1991).
On January 16, 2002, Hankerson filed a pеrsonal restraint petition in the Court of Appeals, arguing, among other things, that this court‘s decision in State v. Roberts, 142 Wash.2d 471, 14 P.3d 713 (2000) constitutes a significant new change in the law entitling him to relief, both with regard to admission of Mitchell‘s statements against interest that inculpated Hankerson, and with regard to attribution of aggravating factors to an accomplice. On July 3, 2002, the acting chief judgе of Division One of the Court of Appeals dismissed the petition, reasoning that Hankerson‘s claim regarding admissibility of the out of court statements did not fall within any exception in
Hankerson sought discretionary review in this court, which was denied by the court commissioner. The court granted Hankerson‘s motion to modify the commissioner‘s ruling and accepted discretionary review. We affirm the Court of Appeals’ order dismissing Hankerson‘s personal restraint petition.
ANALYSIS
In Stoudmire I, this court considered the mandate in
Hankerson maintains, however, that in Stoudmire I this court identified which claims were untimely under
Stoudmire I does not require the analysis urged by Hankerson. Instead, the court dismissed all the claims that did not involve alleged facial invalidity. As to these claims, the court identified one as possibly falling within
The most that can be said about Stoudmire I is that the court showed how its holding will apply. The case did not establish a procedure that in the future courts would have to consider each claim on the merits, identify the time barred claims, identify thе claims that are not time barred under
Hankerson contends, alternatively, that we should adopt the procedure followed in federal courts. “Mixed” federal habeas corpus petitions, i.e., those containing both claims that have been exhausted in state court and claims that have not, must be dismissed for failure to exhaust state remedies. Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). District courts must provide petitioners “with the choice of returning to state court to exhaust [their] claims or of amending or resubmitting the habeas petition to present only exhausted claims to the district court.” 455 U.S. at 510, 102 S.Ct. 1198. The Ninth Circuit has held that the petitioner has a right to amend the
Hankerson maintains this procedure assures that all issues raised will be resolved in a single case, thus serving the goals of finality and justice. He argues the Court of Appeals dismissal of his petition conflicts with the federal cases, which he views as persuasive precedent.
As the State points out, however, if this procedure did not exist in the federal system, and the courts simply dismissed mixed habeas corpus petitions, then the federal one-year limitation on filing habeas corpus petitions might expire before a petitioner could refile a petition raising only exhausted claims. This is not true in the case of a “mixed petition” under
In addition, under either procedure suggested by Hankerson, the likelihood is that petitioners will file doubtful claims along with legitimate claims and wait to see which the court decides are exempt and either worth proceeding on or refiling. Much more importantly, nеither procedure is consistent with
We are aware, of course, that some examinatiоn of the grounds asserted for relief must be made in order to determine if there is a time barred claim. In many of the cases, this will require limited effort on the part of the court, given its experience. Often the cases cited in support of the claims, or the nature of the claims, will focus the court‘s attention on the claim or claims likely to be time barred. We are persuaded that the interests of judicial economy as well as legislative intent underlying
Accordingly, we reiterate the holding of Stoudmire I that if a personal restraint petition claiming multiple grounds for relief is filed after the one-year period of
Turning to Mr. Hankerson‘s claims, it is obvious that he has filed a mixed petition which must be dismissed. Although dismissal by the Court of Appeals was on the basis that Roberts does not constitute significant new law vis-à-vis the admission of Hankerson‘s codefendant‘s out of court statements, we conclude that another ground for relief asserted in his petition fails to fall within any exception in
These cases do not represent significant new law material to Hankerson‘s conviction. Accordingly, his personal restraint petition was correctly dismissed as a mixed petition. As we noted in Stoudmire I, Hankerson may file a personal restraint petition in the future bringing claims he believes fall within the exceptions of
We also note that if, in the future, Hankerson brings claims challenging whether his judgment and sentence is valid on its face or rendered by a court of competent jurisdictions, such claims do not fall within
We affirm the dismissal of Hankerson‘s personal restraint petition on the basis that it is a mixed petition.
WE CONCUR: ALEXANDER, C.J., JOHNSON, IRELAND, BRIDGE, OWENS, FAIRHURST, JJ.
CHAMBERS, J. (dissenting in part).
I agree that Gerald Hankerson‘s personal restraint petition is mixed. However, given the importance of the issues he raises, I would permit him to withdraw the untimely issues to afford prompt review.1 Therefore, I respectfully dissent.
Under the approach sanctioned by the majority today, if the reviewing court determines one of the issues raised in a personal restraint petition brought under
Certainly no one argues that justice must be inexpensive or subject to a cost efficient analysis. Our obligation is to dispense justice. Justice delayed is often justice denied.
The judicial power of this State is vested in the courts.
I do not read In re Personal Restraint of Stoudmire, 141 Wash.2d 342, 5 P.3d 1240 (2000) (Stoudmire I) or In re Personal Restraint of Stoudmire, 145 Wash.2d 258, 36 P.3d 1005 (2001) (Stoudmire II) to compel the result reached by the majority today. In Stoudmire I, this court identified which claims were properly reviewable under
Similarly, I believe that courts should review personal restraint petitions with an eye toward whether the petitioner has raised any meritorious issues warranting review. The majority‘s approach will have the courts reviewing petitions with an eye for any untimely issues warranting dismissal. This approach is antithetical to principles that should underlie our consideration of every plea for justice.
I believe that when an issue plainly appears to be timely, the court has the inherent equitable power to stay dismissal and give the petitioner the option of withdrawing the untimely claims. This would implement the legislature‘s clear intent of encouraging prompt rеsolution of claims, while allowing meritorious claims to be heard in a timely fashion.
Where the petitioner files numerous and obviously time barred claims, I agree with the majority that the court should dismiss the petition as mixed and not reward petitioner‘s failure to abide by the strictures of
SANDERS, J., concurs.
Notes
The time limit specified in
(1) Newly discovered evidence, if the defendant acted with reasonable diligence in discovering the evidence and filing the petition or motion;
(2) The statute that the defendant was convicted of violating was unconstitutional on its face or as applied to the defendant‘s conduct;
(3) The conviction was barred by double jeopardy under Amendment V of the United States Constitution or Article I, section 9 of the state Constitution;
(4) The defendant pled not guilty and the evidence introduced at trial was insufficient to support the conviction;
(5) The sentence imposed was in excess of the court‘s jurisdiction; or
(6) 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 or civil proceeding instituted by the state or local government, and either the legislature has expressly provided that the change in the law is to be applied retroactively, or a court, in interpreting a change in the law that lacks express legislative intent regarding retroactive application, determines that sufficient reasons exist to require retroactive application of the changed legal standard.
Hankerson raised four issues in his petition. First, he argued that the admittance of out of court statements of a nontestifying codefendant violated the law as subsequently articulated in State v. Roberts, 142 Wash.2d 471, 14 P.3d 713 (2000). Second, he argued the admittance of these statements violated three United States Supreme Court cases, one of which was subsequent to his conviction. Third, he argued that the State used a subsequently invalidated theory of accomplice liability. Fourth, he argued the jury instruction improperly allowed the jury to convict him of an aggravating factor based on his codefendant‘s actions. His first, third, and fourth claims are potentially subject to the