Honore v. Washington State Bd. of Prison Terms and Paroles

• Decision Date: 26 February 1970
• Docket Number: No. 40108,40108
• Citation: 466 P.2d 485,77 Wn.2d 660
• Parties: Application for a Writ of Habeas Corpus of Elwood Joseph HONORE, Petitioner, v. WASHINGTON STATE BOARD OF PRISON TERMS AND PAROLES, Respondent.
• Court: Washington Supreme Court

Page 660

77 Wn.2d 660

466 P.2d 485

Application for a Writ of Habeas Corpus of Elwood Joseph HONORE, Petitioner, v. WASHINGTON STATE BOARD OF PRISON TERMS AND PAROLES, Respondent.

No. 40108.

Supreme Court of Washington, En Banc.

Feb. 26, 1970.

Martin & Marquis, George M. Martin, Yakima, for petitioner.

Lincoln E. Shropshire, Pros. Atty., F. James Gavin, Yakima, for respondent.

Slade Gorton, Atty. Gen., Olympia, Paul J. Murphy, Asst. Atty. Gen., as amicus curiae.

HAMILTON, Justice.

In 1963, petitioner-appellant, Honore, represented by counsel at the time, entered a plea of guilty to the crime of grand larceny and was sentenced and committed to the state penitentiary. In 1966, the Washington State Board of Prison Terms and Paroles, granting him parole from the penitentiary, released Honore to the custody of federal authorities pursuant to a detainer previously lodged by such authorities. Thereafter, Honore was confined in the federal penitentiary at McNeil Island, Washington, until his release in March, 1967. In keeping with the terms and conditions of his state parole, the Board of Prison Terms and Paroles reasserted supervisory authority over him, to which he acceded. In August, 1967, alleging that Honore had violated conditions of his parole, the board rescinded his parole, issued a parole warrant, and returned him to the state penitentiary where he now is.

Thereafter, Honore filed his petition for a writ of habeas corpus with the Superior Court for Yakima County, the sentencing court, alleging, as the basis for the relief sought, that the state correctional authorities had lost jurisdiction over him when they released him to the federal detainer. The superior court perceiving that the issue raised was one of first impression in this state and that there existed a division of authority elsewhere on the question, appointed counsel to represent Honore, held a hearing, considered the briefs and arguments of counsel, and thereupon denied the petition. Appointed counsel were then permitted to withdraw from the case.

Honore filed notice of appeal and requested permission to proceed in forma pauperis. The trial court granted his request after finding that the 'petitioner is indigent and * * * his appeal is not patently frivolous.' This relief was afforded pursuant to RCW 7.36.250, which provides:

Any person entitled to prosecute a writ of habeas corpus who, by reason of poverty is unable to pay the costs of such proceeding or give security therefor, may file in the court having original jurisdiction of the proceeding an affidavit setting forth such facts and that he believes himself to be entitled to the redress sought. Upon the filing of such an affidavit the court may, if satisfied that the proceeding or appeal is instituted or taken in good faith, order that such proceeding, including appeal, may be prosecuted without prepayment of fees or costs or the giving of security therefor.

Subsequently, the trial court ordered preparation of a statement of facts and transcript on appeal at public expense but denied Honore's motion for appointment of counsel to aid him with his appeal. In this latter respect, the trial court was following the theme of our decision in Summers v. Rhay, 67 Wash.2d 898, 410 P.2d 608 (1966).

Honore then moved this court for appointment of appellate counsel. This motion was set down for en banc hearing with counsel from the American Civil Liberties Union and the University of Washington Law School appearing in support of petitioner's motion, the Prosecuting Attorney for Yakima County representing respondent, and the state Attorney General's office appearing amicus curiae. Following oral argument, and in order to expedite the appeal, we issued an order providing in part:

(2) The Superior Court of Yakima County determined that petitioner was an indigent, that his application was not frivolous, that a hearing upon the merits of his application should be held, and that petitioner was entitled to counsel at public expense (6) The issue raised by petitioner's allegations and his appeal is one of law and counsel would be of assistance to petitioner in properly presenting his contention and would be of substantial aid to the court in the orderly disposition of the matter; Now, Therefore,

It is ordered That the cause be remanded to the Superior Court of Yakima County for the appointment of counsel to represent petitioner on his appeal; and

It is further ordered That the matter of payment of costs and attorney fees to appointed counsel will be determined by an opinion to follow this order.

Before we turn to the matter of compensation, we deem it desirable to clarify the basis of our order directing the superior court to provide appointed counsel to assist Honore, as an indigent, in the prosecution of his appeal from the denial of his nonfrivolous application for habeas corpus.

The remedy of habeas corpus found early expression in the Magna Carta, and was carried and embedded into our federal constitution by this nation's Founding Fathers. In the context of imprisonment in connection with criminal offenses, the writ of habeas corpus provides a speedy device to test the constitutionality of the detention. To insure its availability, both the federal constitution and this state's constitution prohibit suspension of the writ except under extreme circumstances. U.S. Const. art. 1, § 9; Const. art. 1, § 13. In this state, the writ, by legislative enactment, with certain reservations, is available to 'Every person restrained of his liberty under any pretense whatever, * * *.' RCW 7.36.010. Although, as heretofore indicated, the writ is frequently invoked as a method of challenging the constitutional validity of confinement growing out of criminal charges, habeas corpus proceedings have quite consistently been characterized as civil proceedings--I.e., a proceeding to enforce the civil right of personal liberty--as distinguished from criminal proceedings. Ex parte Tom Tong, 108 U.S. 556, 2 S.Ct. 871, 27 L.Ed. 826 (1883); Fisher v. Baker, 203 U.S. 174, 27 S.Ct. 135, 51 L.Ed. 142 (1906); State v. Fenton, 30 Wash. 325, 70 P. 741 (1902); State ex rel. Roberts v. Superior Court, 32 Wash. 143, 72 P. 1040 (1903); Ludwick v. Webb, 23 Wash.2d 115, 160 P.2d 504 (1945); Summers v. Rhay, Supra; Little v. Rhay, 68 Wash.2d 353, 413 P.2d 15 (1966). In this latter vein, however, it is appropriate to note that despite its earlier pronouncements, the United States Supreme Court, in denying applicability of the discovery provisions of the civil rules of procedure to habeas corpus proceedings, has observed that the label 'civil' is inexact when considered in connection with postconviction litigation and that more approximately the remedy in such context is unique, if not somewhat Sui generis. Harris v. Nelson, 394 U.S. 286, 89 S.Ct. 1082, 22 L.Ed.2d 281, March 24, 1969.

By way of further preface, we would inject here the observation that, in instances where an indigent state prisoner's petition for a writ of habeas corpus satisfactorily appears to be nonfrivolous, urged in good faith, and deserving of an evidentiary hearing to resolve significant factual or legal issues, it is not an unprecedented procedure for the trial court before which the hearing is held to appoint counsel to assist the petitioner in the presentation of his claims at the hearing. This has been done either at the instance of this court or on the initiative of the trial court, as in the instant case, in the exercise of judicial discretion. E.g., Mocabee v. Rhay, Supreme Court Cause No. 37627, Order for Appointment of Counsel, February 8, 1965; Mason v. Cranor, 42 Wash.2d 610, 257 P.2d 211 (1953). And, we have long held, in keeping with RCW 7.36.250 and Rules on Appeal 14 and 56, RCW vol. O, that an appeal lies from a superior court denial or dismissal of an application for a writ of habeas corpus. In re Foye, 21 Wash. 250, 57 P. 825 (1899); In re Baker, 21 Wash. 259, 57 P. 827 (1899); In re Sylvester, 21 Wash. 263, 57 P. 829 (1899). This right of appellate review, with some limitations, has also been afforded to impoverished penal petitioners pursuing a nonfrivolous application at public expense. Mason v. Cranor, Supra.

Against this background, then, we turn to the question posed by petitioner-appellant's motion, that is, whether as a matter of right or of discretion, as an indigent prisoner, he is entitled to have counsel appointed to assist in the prosecution of his appeal. Implicit, of course, in the query presented is the question of the superior court's power and duty to appoint counsel to assist an indigent prisoner at the evidentiary hearing stage of a nonfrivolous petition.

The United States Supreme Court has not as yet spoken directly upon the particular questions here involved. Of those appellate courts which have, the majority have tended to deny the existence of a constitutional right compelling appointment of counsel for an indigent prisoner engaged in pursuing a postconviction remedy. While the reasons given for this conclusion are occasionally more refined, most courts, as we recently did, have simply said that the constitutional guarantees of counsel contained in the sixth amendment to the United States Constitution and similar state constitutional provisions and limited to 'criminal prosecutions' and do not extend to postconviction procedures, such as habeas corpus, which are characterized as 'civil proceedings.' See, e.g., Summers v. Rhay, Supra; Foster v. United States, 345 F.2d 675 (6th Cir. 1965); Cullins v. Crouse, 348 F.2d 887 (10th Cir. 1965); Dutton v. Eyman, 95 Ariz. 96, 387 P.2d 799 (1963), cert. denied, 377 U.S. 913, 84 S.Ct. 1176, 12 L.Ed.2d 182 (1964); Loftis v. Amrine, 152 Kan. 464, 105 P.2d 890 (1940); Right to aid of counsel in application or hearing for habeas corpus, Annot., 162 A.L.R. 922 (1946).

Nevertheless, some of these same courts also hold that counsel may be appointed at the court's discretion...