In re Khan

• Decision Date: 25 November 2015
• Docket Number: No. 89657–7.,89657–7.
• Citation: 363 P.3d 577,184 Wash.2d 679
• Parties: In the Matter of the Personal Restraint of Zahid Aziz KHAN, Petitioner.
• Court: Washington Supreme Court

184 Wash.2d 679

363 P.3d 577

In the Matter of the Personal Restraint of Zahid Aziz KHAN, Petitioner.

No. 89657–7.

Supreme Court of Washington, En Banc.

Nov. 25, 2015.

Jeffrey Erwin Ellis, Oregon Capital Resource Center, Portland, OR, for Petitioner.

Seth Aaron Fine, Attorney at Law, Snohomish Co. Pros. Ofc., Everett, WA, for Respondent.

Suzanne Lee Elliott, David B. Zuckerman, Attorney at Law, Seattle, WA, amicus counsel for Washington Association of Criminal Defense Attorneys.

GONZÁLEZ, J.

¶ 1 Zahid Khan was tried, without an interpreter, for multiple counts of child molestation and rape. Khan is not a native English speaker, and his level of English fluency is disputed. It is undisputed that he was not offered an interpreter by the court or by his attorney. Khan contends, among other things, that his trial was unfair and that his attorney provided ineffective assistance of counsel by not securing an interpreter. Khan asks that we vacate his convictions. We find he has not made the requisite showing for such relief. In the alternative, Khan asks for an evidentiary hearing to develop the factual basis for his claims. We conclude he has made the requisite showing for such a hearing. Accordingly, we reverse the Court of Appeals' order dismissing this personal restraint petition. We remand to that court for entry of an order transferring Khan's petition to the Snohomish County Superior Court for a reference hearing. That reference hearing should determine whether Khan's constitutional and/or statutory rights were violated by the lack of an interpreter and whether any such violation caused him the requisite prejudice for collateral relief.

BACKGROUND

¶ 2 A full statement of the facts of the underlying crimes is available in the Court of Appeals' opinion on direct review. State v. Khan, noted at 149 Wash.App. 1052, 2009 WL 1058626. Briefly, Khan was born in Pakistan in 1972 and moved to the United States in 1999. Pers. Restraint Pet. App. B at 1. He is a native speaker of Urdu with, he contends, only limited English proficiency. Id. He lived with his wife, Eram Mirza; their two children; and his wife's daughter from a previous marriage, R.H. Khan, 2009 WL 1058626, at *1. After midnight one night in 2007, Mirza and her sister heard R.H. cry out for help. Id. Mirza and her sister ran up the stairs and found Khan standing over his crying stepdaughter with an erection. Id. A few days later, Mirza called Child Protective Services, who referred the matter to the police. Id. Khan was charged with and convicted of multiple counts of child molestation and rape. Id. at *1–2. Despite his limited English proficiency, he was not offered an interpreter.

¶ 3 After his direct appeal was denied, Khan filed this timely personal restraint petition contending, among other things, (1) that the lack of an interpreter deprived him of due process and equal protection of law, denied him a fair trial, and denied him effective assistance of counsel. He also contends that his counsel provided ineffective assistance (2) by failing to move for a mistrial or to seek a curative instruction after the prosecutor allegedly exploited his lack of English proficiency and (3) by failing to secure an expert to testify that his stepdaughter lacked physical injuries consistent with her testimony that Khan had been abusing her for several years.

¶ 4 The acting chief judge dismissed Khan's petition in a lengthy order. While the order did not explicitly say Khan's petition was frivolous, under the Rules of Appellate Procedure, only frivolous personal restraint petitions are subject to dismissal by order of a single judge. RAP 16.11(b) ; In re Pers. Restraint of Khan, Order Dismissing Pers. Restraint Pet. No. 66398–4–I, at 12 (Wash. Nov. 13, 2013) (citing RAP 16.11(b) ).¹ Khan moved for discretionary review, arguing that, procedurally, his personal restraint petition should have been either referred to a panel of judges for a determination on the merits or transferred to the trial court for further factual development. On the merits, Khan renewed and reformulated his first three claims for relief. We accepted review. In re Pers. Restraint of Khan, 181 Wash.2d 1013, 336 P.3d 1165 (2014).

1. RAP 16.11(b) AND NONFRIVOLOUS PETITIONS

¶ 5 The acting chief judge dismissed this petition under former RAP 16.11(b) (1998). At the time, RAP 16.11 provided in relevant part:

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 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.

Former RAP 16.11(b).² Khan's petition was not referred to a panel under former RAP 16.11(b) and counsel was not appointed under RCW 10.73.150(4). Thus, we infer, the Chief Judge concluded it was frivolous. This was error. We take this opportunity to consider the meaning of the word "frivolous" for purposes of Title 16 RAP.

¶ 6 Khan suggests we adopt the approach we take under RAP 18.9(a) to determine whether an appeal is frivolous for purposes of sanctions. Second Suppl. Br. in Supp. of Pers. Restraint Pet. (Pet'r's Second Suppl. Br.) at 4–5. Under this approach, an appeal is frivolous " ‘if there are no debatable issues upon which reasonable minds might differ and it is so totally devoid of merit that there [is] no reasonable possibility of reversal.’ " State v. Chapman, 140 Wash.2d 436, 454, 998 P.2d 282 (2000) (alteration in original) (quoting State ex rel. Quick–Ruben v. Verharen, 136 Wash.2d 888, 905, 969 P.2d 64 (1998) ). Khan's suggestion is consistent with his allusions to the well-pleaded complaint rule, under which federal jurisdiction for purposes of filing is determined by a plaintiff's well-pleaded complaint, not the existence of any defenses. Mot. for Discr. Review at 2; see also Franchise Tax Bd. of Cal. v. Constr. Laborers Vacation Trust for S. Cal., 463 U.S. 1, 10, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983) (citing Taylor v. Anderson, 234 U.S. 74, 75–76, 34 S.Ct. 724, 58 L.Ed. 1218 (1914) ).

¶ 7 We find the RAP 18.9(a) approach does not fit easily in the personal restraint petition context. Even if a personal restraint petition raises legal issues that, out of context, are debatable, it still may be frivolous when there are clear independent grounds to dismiss. For example, the claims raised may be untimely under RCW 10.73.090 or .100. The petitioner may not be under "restraint" under RAP 16.4(b). The petitioner may have made a debatable showing of error without making any attempt to show the requisite prejudice necessary for collateral relief. See In re Pers. Restraint of Coats, 173 Wash.2d 123, 166–67, 267 P.3d 324 (2011) (citing In re Pers. Restraint of Gentry, 170 Wash.2d 711, 714, 245 P.3d 766 (2010) ; In re Pers. Restraint of Stoudmire, 141 Wash.2d 342, 355–56, 5 P.3d 1240 (2000) ). The issue may already have been resolved on direct review, and the petitioner may make no effort to show the interests of justice require the issue to be reexamined. In re Pers. Restraint of Gentry, 137 Wash.2d 378, 388, 972 P.2d 1250 (1999). The petitioner might raise a cognizable legal claim but fail to state with particularity the facts that would give rise to relief. In re Pers. Restraint of Rice, 118 Wash.2d 876, 886, 828 P.2d 1086 (1992). In any of these situations, a petition may be properly dismissed as frivolous even if the legal issue, properly raised, might be debatable. See In re Pers. Restraint of St. Pierre, 118 Wash.2d 321, 328–29, 823 P.2d 492 (1992). Similarly, as amicus Washington Association of Criminal Defense Lawyers (WACDL) rightly notes, a personal restraint petition might raise a cognizable factual claim that would prove frivolous upon a review of relevant documents, such as a claim that the State breached a plea agreement when an examination of the plea agreement or transcript of the plea hearing finds the State never agreed to the allegedly breached term. Br. of Amicus Curiae WACDL at 4–5. The existence of a debatable issue is not enough.

¶ 8 Instead, we hold that a personal restraint petition is frivolous where it fails to present an arguable basis for collateral relief either in law or in fact, given the constraints of the personal restraint petition vehicle. See, e.g., Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989) ; accord Wallace v. State, 820 N.W.2d 843, 850 (Minn.2012) (holding a collateral attack "is ‘frivolous' ... if it is perfectly apparent, without argument, that the claims in the petition lack an objective, good-faith basis in law or fact"); People v. Hodges, 234 Ill.2d 1, 11–12, 332 Ill.Dec. 318, 912 N.E.2d 1204 (2009) ("a pro se petition seeking postconviction relief ... may be summarily dismissed as frivolous or patently without merit only if the petition has no arguable basis either in law or in fact"). As will be discussed below, Khan's claim that his right to effective assistance of counsel was violated by his counsel's decision not to arrange for an interpreter has an arguable basis for relief and was not procedurally barred. Thus, it was error to dismiss this petition under former RAP 16.11(b).

¶ 9 But while it was error, Khan does not establish it was error for which the law gives a particular remedy.³ Amicus WADCL argues that the acting chief judge lacked the authority to dismiss the petition by order, and Khan argues that an appropriate remedy for an improper RAP 16.11 dismissal is remand for consideration by a three judge panel. Neither...