In re Arseneau

• Decision Date: 13 December 1999
• Docket Number: No. 39641-2-I.,39641-2-I.
• Citation: 989 P.2d 1197,98 Wash.App. 368
• Court: Washington Court of Appeals
• Parties: In re the Personal Restraint Petition of Robert Leonard ARSENEAU, Petitioner.

989 P.2d 1197

98 Wash.App. 368

In re the Personal Restraint Petition of Robert Leonard ARSENEAU, Petitioner.

No. 39641-2-I.

Court of Appeals of Washington, Division 1.

December 13, 1999.

Robert Leonard Arseneau, Monroe, Dennie Ott, Kelso, for Appellant.

John Blonien, Asst. Atty. Gen., Asst. Atty. Gen. Corr. Div., Michael Mitchell, Office of the Atty. Gen., Olympia, for Respondent.

APPELWICK, J.

In this personal restraint petition (PRP), prison inmate Robert L. Arseneau seeks relief from a Department of Corrections (DOC) prohibition preventing him from writing letters to his 11-year-old niece. Arseneau argues that the prohibition violates his First Amendment right to free speech, denies him due process, and violates the ex post facto and double jeopardy clauses of the United States and Washington Constitutions. We reach the merits of Arseneau's claim. It relates to the "conditions or manner" of his confinement under RAP 16.4(c)(6) and implicates a constitutional right of significant importance. We deny the petition on the merits, however, because the DOC prohibition at issue is no more restrictive than necessary to protect the important governmental interests of furthering Arseneau's rehabilitation and preventing him from "grooming" his niece as a potential abuse victim.

FACTS

In 1991, Arseneau pled guilty and was convicted of four counts of first degree incest. Arseneau had sexually abused his stepdaughter for 13 years, beginning when she was five years old. The stepdaughter became pregnant by these sexual contacts and had several miscarriages. Arseneau told her that he would kill her if she ever told anyone. When she refused his advances, he severely beat her.

At least one other girl claims that Arseneau abused her as well. The girl claims that Arseneau had sexual intercourse with her during August and September 1990, when she was 15 years old. She claims Arseneau warned her that if she told anyone, he would end up in jail, or her father would kill him.

At Arseneau's sentencing, the court imposed an exceptional sentence on each count, for a total of 180 months. The court also prohibited Arseneau from "having any contact, directly or indirectly, with [his stepdaughter] for a period of 10 years."

Once in prison, Arseneau began corresponding with his niece, Amanda Kohl, who resides with Arseneau's mother. Arseneau wrote to Amanda in June and July 1996, when she was 11 years old. Arseneau's early release date is November 20, 2001; Amanda will be 16 years old at the time. There is no evidence that Arseneau ever sexually abused Amanda.

On June 30, 1996, DOC enacted and began enforcing policy 450.050. That policy allows prison officials to restrict or deny contact between an offender and "[an] individual or class of individuals [that] has/have been victimized by the offender." DOC 450.050. Linda Willenberg, the correctional program manager at Twin Rivers Correctional Center, believed the correspondence between Arseneau and Amanda was subject to DOC 450.050. Willenberg concluded that Amanda was "a young school age girl ... in the class of individuals victimized by Mr. Arseneau." Willenberg prohibited the contact based on the policy.

Arseneau filed this PRP contesting the prohibition.

WHETHER THE CLAIM IS COGNIZABLE IN A PRP

As a threshold matter, DOC argues that Arseneau's claim is not cognizable in a PRP because the prohibition that he challenges does not relate to the validity of his conviction, sentencing or custody. DOC contends that the claim is not cognizable because Arseneau has an adequate remedy at law, namely a civil rights action under 42 U.S.C. § 1983. Because the claim here implicates a constitutional right of significant importance, we will reach the merits of the petition.

Bringing a successful claim in a PRP requires "a showing of restraint and an unlawful aspect of the restraint." In re Personal Restraint of Metcalf, 92 Wash.App. 165, 172, 963 P.2d 911 (1998) (citing RAP 16.4). The restraint must be unlawful for one of the reasons set forth in RAP 16.4(c). One of those reasons is that "[t]he conditions or manner of the restraint of petitioner are in violation of the Constitution of the United States." RAP 16.4(c)(6). Here, Arseneau is restrained—he is currently incarcerated. The prohibition preventing him from contacting his niece is one of the "conditions" of his incarceration, which implicates his First Amendment right to free speech. Thus, the plain language of RAP 16.4(c)(6) does not per se prevent us from considering Arseneau's claim, even though it is unrelated to the validity of his incarceration.

The prohibition that Arseneau challenges implicates a constitutional right of significant importance. Prison inmates retain First Amendment rights that are not inconsistent with their status as prisoners or with the legitimate penological objectives of the corrections system. Pell v. Procunier, 417 U.S. 817, 822, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974). Prison officials may not limit free speech rights without sufficient justification. We are persuaded to reach the merits of Arseneau's free speech claim.

DOC further argues that Arseneau's claim is not cognizable because he has another remedy available at law, namely a civil rights suit under 42 U.S.C. § 1983. DOC cites RAP 16.4(d) in support. That rule provides that a petitioner's claims are cognizable in a PRP only "if other remedies which may be available to petitioner are inadequate under the circumstances." DOC further contends that disallowing the present petition would be consistent with the ABA Standards for Criminal Justice: Postconviction Remedies (2d ed. 1980 & Supp.1986), and with federal law governing habeas corpus petitions.

As DOC asserts, Washington's PRP procedures were originally based on the ABA Standards: "[t]he relationship between a personal restraint petition and other remedies defined in [RAP 16.4(d)] is consistent with present law and is in accord with ABA Standards Relating to Post-Conviction Remedies (Approved Draft, 1968)." Rules of Court, RAP 16.4, cmt., 86 Wash.2d at 1244 (1976). In addition, the procedure established by the rules governing personal restraint petitions "supercedes the appellate procedure formerly available for a petition for writ of habeas corpus." RAP 16.3(b). Nonetheless, neither the ABA Standards nor federal habeas corpus case law should deter us from reaching the merits of this petition.

Again, DOC is correct that the ABA Standards clearly disallow an inmate from challenging in a collateral proceedinga condition of confinement unrelated to the validity of confinement. The comment to the Standards states, "[o]ther claims, however, unrelated to the validity of conviction, sentence, or custody are not considered `postconviction' proceedings. The burgeoning litigation concerning conditions within custodial institutions and civil rights of inmates is thus excluded from the scope of these standards." 22-1.1, at 7.

Nonetheless, the ABA Standards are not persuasive authority here. They differ from the plain language of RAP 16.4(c)(6). According to the Standards, the following claims are cognizable in a postconviction proceeding: 1) claims "challenging judgments of conviction and sentence;" and 2) "claims challenging the legality of custody or restraint based upon a judgment of conviction, including claims that a sentence has been fully served or that there has been unlawful revocation of parole or probation or conditional release." 22-2.1, at 16. In contrast, RAP 16.4(c)(6) allows a petitioner to challenge "the conditions or manner of the restraint." On their face, Washington's rules differ from the ABA Standards, allowing a broader type of action.

Furthermore, federal case law regarding habeas corpus actions does not clearly support DOC's position. DOC cites certain United States Supreme Court cases for the proposition that actions pertaining to individual and civil rights which do not implicate the fact of confinement, cannot be brought as habeas petitions. But the Supreme Court cases that DOC cites are not on point. Those cases hold only that inmates challenging actions related to the validity of confinement must first raise the issue in a habeas proceeding. See Edwards v. Balisok, 520 U.S. 641, 648, 117 S.Ct. 1584, 137 L.Ed.2d 906 (1997)

(inmate's constitutional challenge to disciplinary proceeding not cognizable under § 1983 because claim implied "the invalidity of the punishment imposed" and inmate had not previously brought habeas corpus action); Heck v. Humphrey, 512 U.S. 477, 486-87, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994) (to recover damages for unlawful action that would render conviction or sentence invalid, § 1983 plaintiff must prove that conviction or sentence was reversed on direct appeal, expunged by executive order, declared invalid by state tribunal, or called into question by federal writ of habeas corpus). These cases do not stand for the corollary proposition that actions pertaining to individual and civil rights cannot be brought as habeas petitions.

Furthermore, some state and federal courts have allowed inmates to challenge in collateral proceedings conditions of confinement unrelated to the validity of confinement, where other remedies were available at law. See, e.g., Wilwording v. Swenson, 404 U.S. 249, 250, 92 S.Ct. 407, 30 L.Ed.2d 418 (1971) (per curiam)

(allowing federal habeas action challenging prison living conditions and disciplinary measures where inmates had not exhausted possible remedies at law in state court); Harris v. MacDonald, 532 F.Supp. 36, 41 (N.D.Ill.1982) ("a habeas petition challenging conditions of confinement may still be brought, even though § 1983 will also invariably be available in such cases."); Wilson v. State of Idaho, 113 Idaho 563, 746 P.2d 1022 (1987) (allowing constitutional challenges to conditions of confinement by means of habeas corpus petitions); Harrah v. Leverette, 165 W.Va. 665, 271 S.E.2d 322 (W.Va.1980) (same); ...