Cook, Matter of

• Decision Date: 07 June 1990
• Docket Number: No. 55608-3,55608-3
• Parties: In re the Matter of the Personal Restraint Petition of Mark Edwin COOK, Petitioner. En Banc
• Court: Washington Supreme Court

Page 802

114 Wn.2d 802

792 P.2d 506

In re the Matter of the Personal Restraint Petition of Mark Edwin COOK, Petitioner.

No. 55608-3.

Supreme Court of Washington,

En Banc.

June 7, 1990.

Washington Appellate Defender Ass'n, Julie A. Kesler, Seattle, for petitioner.

Norm Maleng, King County Prosecutor, Cynthia S.C. Gannett, and Donna L. Wise, Sr. Appellate Attys., Seattle, for respondent.

BRACHTENBACH, Justice.

Two issues are presented. The first is whether petitioner may advance, in his second personal restraint petition, his claim that his state convictions violated RCW 10.43.040, which, after his conviction and appeal, was interpreted by this court as foreclosing identical state and federal prosecutions. The second is whether petitioner's state convictions were in fact identical to his federal convictions, and thus violated the statute.

Petitioner was involved in a bank robbery in Tukwila, Washington, in January 1976. When police arrived during the bank robbery, petitioner shot a police officer. In March 1976, he assisted a prisoner's escape from police custody in Seattle. During the prisoner's escape, petitioner shot another police officer.

Based upon these activities, petitioner was convicted in federal district court of bank robbery, conspiracy, and use of a firearm during the commission of a bank robbery. Also based upon these activities, he was convicted in King County Superior Court of two counts of assault in the first degree and one count of aiding a prisoner to escape. His state convictions were affirmed. See State v. Cook, 31 Wash.App. 165, 639 P.2d 863, review denied, 97 Wash.2d 1018 (1982). Petitioner is currently serving his federal sentences, and, upon their completion, he will be remanded to Washington State's custody to serve his state sentences.

In 1982 petitioner filed his first personal restraint petition challenging the State's revocation without a hearing of his parole from a 1965 conviction, his competency at the time of a 1958 conviction, and the use of his 1958 conviction to enhance his state sentences for the 1965 and 1976 crimes. That petition was dismissed by the Court of Appeals. Court of Appeals cause 12622-9-I (Mar. 22, 1984). This court denied discretionary review. Supreme Court cause 50485-7 (July 26, 1984).

Petitioner filed this second ¹ personal restraint petition in 1988 claiming that he was entitled to relief based upon this court's interpretation of RCW 10.43.040 as prohibiting identical state and federal prosecutions (statutory double jeopardy). See State v. Caliguri, 99 Wash.2d 501, 664 P.2d 466 (1983). The Court of Appeals read our opinion in In re Hews, 99 Wash.2d 80, 88, 660 P.2d 263 (1983) as limiting relief in personal restraint petitions to errors of constitutional magnitude. That court dismissed this current petition because petitioner's claim was based only upon statutory grounds.

We granted discretionary review, and now deny the petition. The issue raised by petitioner is cognizable by way of a personal restraint petition. However, we deny the petition on the basis that petitioner's convictions do not offend RCW 10.43.040.

Initially, we note that the Legislature has recently created new time limits for "collateral attacks," including those advanced in personal restraint petitions. See Laws of 1989, ch. 395, codified at RCW 10.73.090-.140. Because Mr. Cook's petition was filed before this legislation takes effect, see RCW 10.73.130, those statutory limitations are not applicable here.

Our state constitution grants the Supreme Court jurisdiction to hear petitions for writs of habeas corpus. Const. art. 4, § 4. To implement this jurisdiction at the appellate level, we have adopted the personal restraint petition. See RAP 16.3-16.15; Toliver v. Olsen, 109 Wash.2d 607, 611, 746 P.2d 809 (1987).

We first consider whether RAP 16.4(d) prevents petitioner from advancing this second petition. Next we consider whether a personal restraint petition can be used to advance a challenge to a conviction based on statutory grounds which were not raised at trial or on direct appeal. We note that, at the time of petitioner's conviction, the "double jeopardy" statute existed but had not yet been interpreted as encompassing the protection now sought by petitioner. Finally, we reach the merits, and consider whether petitioner has established a violation of RCW 10.43.040 by demonstrating that his state convictions were in fact identical to his federal convictions. RAP 16.4(d)

RAP 16.4(d) provides that "[n]o more than one petition for similar relief on behalf of the same petitioner will be entertained without good cause shown." The State argues that petitioner seeks relief similar to that sought in his first petition, and that he has not demonstrated good cause. Therefore, the State urges, RAP 16.4(d) bars this second petition.

The interpretation of RAP 16.4(d) urged by the State was adopted by this court in In re Haynes, 95 Wash.2d 648, 652, 628 P.2d 809 (1981), overruled in part in, In re Haverty, 101 Wash.2d 498, 503, 681 P.2d 835 (1984), overruled on other grounds in, In re Hews, 99 Wash.2d 80, 660 P.2d 263 (1983). In Haynes we interpreted RAP 16.4(d) as relating to the type of relief sought. Therefore because both petitions in that case sought "relief from restraint," they were "similar" under the rule and, absent a showing of good cause, the second petition was barred. Haynes, 95 Wash.2d at 653, 628 P.2d 809.

Three years later, however, we reexamined RAP 16.4(d). In re Haverty, supra 101 Wash.2d at 502, 681 P.2d 835. We concluded that the United States Supreme Court's construction of similar language in a federal statute was more consistent with recent decisions of this court. We noted the Supreme Court's conclusion that successive petitions are only to be dismissed where the grounds for relief had previously been "heard and determined," or where there was an abuse of the writ or motion remedy. Haverty, at 503, 681 P.2d 835 (citing Sanders v. United States, 373 U.S. 1, 15, 17, 83 S.Ct. 1068, 1078, 10 L.Ed.2d 148 (1963)).

Thus, in contrast to the analysis in Haynes, we interpreted our rule's "similar relief" language as relating to the grounds advanced in the first petition rather than the type of relief sought. Haverty, 101 Wash.2d at 502-03, 681 P.2d 835. Because the issues raised in the second petition were not raised in Haverty's prior petition, we concluded that the petition was not barred by RAP 16.4(d).

We indicated that our construction of RAP 16.4(d) was "at least with respect to personal restraint petitions which allege prejudicial constitutional error affecting the trial's truth-finding function." Haverty, at 503, 681 P.2d 835. We expressly declined to decide whether the Haynes construction of the rule remained valid for petitions not alleging prejudicial constitutional error. Haverty, at 503 n. 1, 681 P.2d 835.

Now we resolve that issue, and hold that the construction of RAP 16.4(d) adopted in Haverty applies also to petitions advancing nonconstitutional issues. RAP 16.4(d) is simply a procedural rule, Haverty, at 504, 681 P.2d 835, and in light of other restrictions upon collateral attacks, imposed by recent legislation and by substantive burdens on personal restraint petitioners (see discussion below), there is no reason to interpret the rule differently in the context of personal restraint petitions based upon statutory challenges.

Applying the analysis we used in Haverty requires that we determine whether petitioner's grounds for relief have been "heard and determined" in a previous petition and whether petitioner is abusing the personal restraint petition process. Petitioner's first personal restraint petition was based on grounds entirely different from those supporting this second petition. In his first petition he did not challenge his restraint as violating double jeopardy, but challenged the State's revocation without a hearing of his parole from a prior conviction, his competency at the time of a prior conviction, and the use of a prior conviction in his sentencing for the assault and aiding in a prisoner's escape convictions. His double jeopardy claim was not "heard and determined" in his first personal restraint petition and there is no evidence that petitioner is abusing the personal restraint petition process. Therefore, RAP 16.4(d) does not operate to foreclose consideration of this argument in a second petition.

Seeking Collateral Relief on Statutory Grounds Not Raised Previously

Next we consider whether a statutory challenge which was not raised at trial or on direct appeal may be considered in a personal restraint petition.

Petitioner's claim for relief is the double jeopardy protection recognized in State v. Caliguri, supra. In Caliguri we expressly did not rely upon the double jeopardy clauses of either the state or federal constitutions for the source of this protection, but instead held that RCW 10.43.040 provides protection from the double jeopardy threatened by identical federal and state prosecutions. Caliguri, 99 Wash.2d at 511-12, 664 P.2d 466.

At the time of petitioner's convictions, RCW 10.43.040 had not yet been interpreted as providing protection from double jeopardy threatened by identical state and federal prosecutions. However, the statute had long been in existence, see Laws of 1909, ch. 249, § 19, and arguments for similar protection had been advanced and accepted in other jurisdictions. See, e.g., People v. Lo Cicero, 14 N.Y.2d 374, 378, 379, 200 N.E.2d 622, 251 N.Y.S.2d 953 (1964); People v. Belcher, 11 Cal.3d 91, 97, 520 P.2d 385, 113 Cal.Rptr. 1 (1974), cited in State v. Caliguri, 99 Wash.2d 501, 512, 664 P.2d 466 (1983).

Petitioner did argue at his trial and on direct appeal that his state prosecutions violated his right to be free from double jeopardy. In support of this claim, however, he did not rely upon RCW 10.43.040, but instead focused upon the state and federal constitutions, and upon a...