Petition of Haynes, 47166

• Decision Date: 28 May 1981
• Docket Number: No. 47166,47166
• Citation: 628 P.2d 809,95 Wn.2d 648
• Parties: In the Matter of the Personal Restraint Petition of James D. HAYNES, Petitioner.
• Court: Washington Supreme Court

Page 648

95 Wn.2d 648

628 P.2d 809

In the Matter of the Personal Restraint Petition of James D. HAYNES, Petitioner.

No. 47166.

Supreme Court of Washington, En Banc.

May 28, 1981.

Christopher O. Shea, Port Angeles, for petitioner.

Grant S. Meiner, Clallam County Prosecutor, Port Angeles, for respondent.

HICKS, Justice.

This is petitioner's second collateral attack on his convictions for second degree murder and second degree assault. He has previously appealed to the Court of Appeals, brought a petition for review to the Supreme Court, and petitioned for relief from personal restraint. The issues raised in this petition (instructions which include presumptions which allegedly shift the burden of proof from the prosecutor to the defendant) were not raised previously at the trial court, on appeal, on petition for review, or in the previous personal restraint petition. All issues raised in this personal restraint petition were available to be raised before briefs were filed on the initial appeal to the Court of Appeals. We deny the petition.

Petitioner was convicted of second degree murder in early 1975 for killing his estranged wife with a .38 caliber revolver. This act occurred after he entered his wife's home during the progress of his stepdaughter's 16th birthday party and discovered his wife and her boyfriend sitting on the couch together. He was also convicted of second degree assault for seriously wounding a partygoer. Additional facts are set forth in State v. Haynes, 16 Wash.App. 778, 559 P.2d 583 (1977), wherein the Court of Appeals affirmed petitioner's convictions after reviewing various constitutional and procedural errors assigned.

Six years after his conviction, petitioner now asks this court for a retrial on the basis that four instructions at his trial contained constitutionally impermissible presumptions as determined in Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975). One instruction was proposed by Haynes, and he cannot later claim it to be error. State v. Boyer, 91 Wash.2d 342, 588 P.2d 1151 (1979). The other three, not proposed by Haynes but standard instructions in this state previous to Mullaney, appear to be prohibited by Mullaney and State v. Roberts, 88 Wash.2d 337, 562 P.2d 1259 (1977). No exceptions to these instructions were taken at trial. At no time previous to this petition has petitioner assigned error to these instructions.

Haynes, on parole since May 1980, still has standing to seek this relief by personal restraint petition. RAP 16.4(b). Such relief, however, is denied under RAP 16.4(d), In re Myers, 91 Wash.2d 120, 587 P.2d 532 (1978), and In re Lee, 95 Wash.2d 357, 623 P.2d 687 (1980).

The Lee rule, that constitutional issues may not be raised for the first time on collateral attack if they were not excepted to at trial and were available to be raised on appeal, but were not, is directly in point. The distinction between Lee and the instant case is that the Mullaney rule on instructions is at issue rather than voluntariness of a guilty plea. Mullaney was decided a year before Haynes filed his Court of Appeals brief. While petitioner is correct in arguing that the retroactivity of the Mullaney rule, as to direct appeals, is established in Hankerson v. North Carolina, 432 U.S. 233, 97 S.Ct. 2339, 53 L.Ed.2d 306 (1977), and in this state by State v. Modica, 18 Wash.App. 467, 569 P.2d 1161 (1977), retroactivity is not the issue here. Furthermore, Hankerson does not pertain to collateral attacks.

Myers sets out the rule in this state on collateral attack of criminal convictions, based on Massey v. Rhay, 76 Wash.2d 78, 455 P.2d 367 (1969), Pettit v. Rhay, 62 Wash.2d 515, 383 P.2d 889 (1963), and Mason v. Cranor, 42 Wash.2d 610, 257 P.2d 211 (1953). In Myers, we held that personal restraint petitions, brought in state court under RAP 16.4, will be judged in accordance with state procedural requirements. The Myers' rule requires that those issues, constitutional or nonconstitutional, which were known or could have been known yet were not raised at trial nor on direct appeal, may not be raised on collateral attack. Those constitutional interpretations not yet articulated in decisional law, and which could not have been anticipated, will be considered on collateral attack, subject to our strong public policy interest in the finality of judgments and the avoidance of later and inevitably less reliable criminal trials.

Petitioner argues that the instructions given are such grievous error as to require a retrial. The entire purpose of Mullaney, as stated in Hankerson, was to overcome an aspect of trial that substantially impaired the truth finding function. On a collateral attack which raises a retroactivity issue, we weigh the judicial and prosecutorial burden, along with the consideration that the passage of time itself significantly impairs the truth finding process of a retrial. See the discussion in Myers wherein we decided the balance was not in favor of retrial.

Retroactivity is not the issue here. Mullaney was decided 1 year before Haynes filed his original Court of Appeals brief appealing his convictions. The petition for review in the supreme court was set 5 months after Roberts and the issue not raised. Haynes then brought his first personal restraint petition on other constitutional issues, almost 2 years after Mullaney. At some stages of the procedures he went through after his conviction, he was pro se. At others, he was represented by counsel. Neither fact is relevant to our construction of RAP 16.4 precluding post conviction relief under these facts. Petitioner could have raised the issue previously, and is precluded from relief on that basis.

Aside from Myers and the rule in Lee, petitioner is precluded from a second personal restraint petition by RAP 16.4(d) which states:

(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. No more than one petition for similar relief on behalf of the same petitioner will be entertained without good cause shown.

(Italics ours.)

Petitioner Haynes has previously petitioned this court for post conviction relief, and has shown no good cause why he should be allowed to bring a second petition for similar relief ¹ raising issues which could have been raised in the first petition. The Court of Appeals has previously found "good cause" to allow a second personal restraint petition. In re Bush, 26 Wash.App. 486, 616 P.2d 666 (1980). Where good cause is established, another petition will be allowed under RAP 16.4(d). Such is not the case here. It is unnecessary, costly, and burdensome for the courts to entertain more than one personal restraint petition from a single individual when the grounds for relief could be reviewed in one petition.

We...