In re Fowler

• Decision Date: 04 February 2021
• Docket Number: No. 97456-0,97456-0
• Citation: 479 P.3d 1164,197 Wash.2d 46
• Court: Washington Supreme Court
• Parties: In the MATTER OF the Personal Restraint of Vincent L. FOWLER, Petitioner.

197 Wash.2d 46

479 P.3d 1164

In the MATTER OF the Personal Restraint of Vincent L. FOWLER, Petitioner.

No. 97456-0

Supreme Court of Washington.

Argued June 23, 2020

Filed February 4, 2021

John Henry Browne, Law Offices of John Henry Browne PS, 801 2nd Ave. Ste. 800, Seattle, WA, 98104-1573, Craig D. Suffian, Attorney at Law, 2847 Nw 71st St., Seattle, WA, 98117-6250, for Petitioner.

Randall Avery Sutton, Kitsap Co. Prosecutor's Office, 614 Division St., Port Orchard, WA, 98366-4614, for Respondent.

Neil Martin Fox, Law Office of Neil Fox, PLLC, 2125 Western Ave. Ste. 330, Seattle, WA, 98121-3573, for Amicus Curiae on behalf of Wa Association of Criminal Defense Lawyers.

González, C.J. ¶1 The writ of habeas corpus is enshrined in our state and federal constitutions. WASH. CONST. art. I, § 13 ; U.S. CONST. art. I, § 9. Our legislature has the power to expand habeas corpus and frame it in ways that do not impinge on the writ's fundamental nature. See In re Pers. Restraint of Runyan , 121 Wash.2d 432, 444-45, 853 P.2d 424 (1993). Reasonable time limits, with appropriate exceptions, are constitutionally permissible. Id. at 444, 853 P.2d 424. In our state, those restrained under facially valid judgments have at least a year to bring a habeas-style challenge. RCW 10.73.090, .100. A year after that judgment is final, the statutory grounds for relief that may be raised are limited. RCW 10.73.090, .100. In keeping with the importance of the writ, the one-year time limit is subject to equitable tolling in extraordinary circumstances. See In re Pers. Restraint of Haghighi , 178 Wash.2d 435, 447-48, 309 P.3d 459 (2013) ; State v. Littlefair , 112 Wash. App. 749, 759, 51 P.3d 116 (2002) ; see also Pace v. DiGuglielmo , 544 U.S. 408, 418, 125 S. Ct. 1807, 161 L. Ed. 2d 669 (2005) (citing Irwin v. Dep't of Veterans Affairs , 498 U.S. 89, 96, 111 S. Ct. 453, 112 L. Ed. 2d 435 (1990) ).

¶2 Long before his judgment and sentence was final, Vincent Fowler hired and paid an attorney, John Crowley, to prepare and file his personal restraint petition (PRP). But after repeatedly and falsely assuring his client he was working on the PRP, Crowley stopped responding to calls. As the one-year time bar approached and it became apparent Crowley had abandoned him, Fowler hired a new attorney. Fowler learned Crowley had resigned his law license rather than face professional discipline for failing to diligently represent other clients, among other things. Before the time bar passed, Fowler's present counsel filed a "placeholder" PRP explaining he needed additional time to get Fowler's legal file and investigate grounds for relief. After the time bar had passed, counsel filed a "supplemental" PRP arguing Fowler's trial attorney was ineffective. The Court of Appeals dismissed the PRP as untimely.

¶3 This court has inherent authority to grant a timely filed motion to extend the time limit to file a habeas-style challenge to a conviction. See In re Pers. Restraint of Davis , 188 Wash.2d 356, 362 n.2, 395 P.3d 998 (2017). Further, courts have the authority, under appropriate circumstances, to equitably toll the statutory time limit on personal restraint petitions and habeas petitions. Haghighi , 178 Wash.2d at 447, 309 P.3d 459 ; Littlefair , 112 Wash. App. at 759, 51 P.3d 116 ; Pace , 544 U.S. at 418, 125 S.Ct. 1807. We conclude that equitable tolling is warranted here. The misconduct of Fowler's attorney was egregious and Fowler exercised diligence. We reverse the Court of Appeals and remand for consideration on the merits.

FACTS

¶4 Fowler was convicted of two counts of first-degree child molestation and one count of first-degree rape of a child. The Court of Appeals affirmed. State v. Fowler , No. 33227-6-III, slip op. at 1, 2015 WL 4911843 (Wash. Ct. App. Aug. 18, 2015) (unpublished), http://www.courts.wa.gov/opinions/pdf/332276.unp.pdf.

We granted review and remanded for correction of an unrelated error. The superior court entered an amended judgment and sentence on October 19, 2016. Before the judgment was final, Fowler's brother Darryl Fowler hired an attorney to prepare and file a PRP for Fowler. Darryl ¹ hired John Crowley on September 2, 2015, more than two years before the PRP's due date of October 20, 2017. Darryl paid Crowley a significant retainer in advance.

¶5 While incarcerated at Stafford Creek Corrections Center, Fowler was able to speak with Crowley "on only a couple of occasions, and he called me ‘Victor.’ " Suppl. Br. of Pet'r, Ex. D, ¶ 16 (Decl. of Vincent Fowler) (Wash. Ct. App. No. 51029-4-II (2018)). Crowley falsely assured his client that he was working on his PRP and "had all sorts of plan[s] of what he was going to do." Id. Crowley became more difficult to reach, and in June 2017, all of Fowler's calls started going to voice mail. Fowler's brother and other family members attempted to contact Crowley "numerous times, but to no avail." Suppl. Br. of Pet'r, Ex. F, ¶ 3 (Decl. of Darryl Fowler) (Wash. Ct. App. No. 51029-4-II (2018)). In August of 2017, just two months before the PRP was due, Fowler discovered that Crowley's phone line was disconnected. During this time, it did not appear that Crowley had produced anything for Fowler's case.

¶6 Meanwhile, and unknown to Fowler, Crowley was under investigation for professional misconduct in other cases where he had taken a fee and done little or no work. On July 18, 2017, Crowley resigned from the practice of law rather than face professional discipline.

¶7 As the one-year time bar approached and it became apparent Crowley had abandoned his brother, Darryl hired a new attorney. Darryl met with John Henry Browne on October 6, 2017 and almost immediately hired him. Browne informed Darryl that Crowley had "retired ... in lieu of discipline and disbarment." Id. at ¶ 4. This was the first time Darryl or Fowler had heard this. Around the same time, Fowler also heard about Crowley's incompetence from several other inmates. The record suggests Crowley has not returned the unearned fee. Crowley also failed to share Fowler's case file with Browne.

¶8 Before the deadline passed, Browne filed something he characterized as a "placeholder" petition for review in the Court of Appeals on October 18, 2017. ² This petition stated that Fowler's counsel needed additional time to get Fowler's legal file and investigate grounds for relief. The Court of Appeals treated Fowler's petition as a "motion to file a supplemental petition" and directed Fowler to address why the one-year time bar under RCW 10.73.090 did not warrant dismissal. Comm'r’s Letter Ruling, No. 51029-4-II (Wash. Ct. App. Nov. 21, 2017).

¶9 In March 2018, after the time bar had run, Fowler's counsel filed a supplemental petition arguing that the one-year time bar should be equitably tolled because Fowler's prior counsel was ineffective and asserting that the court may waive the time limit under RAP 18.8. ³ The Court of Appeals held that equitable tolling applies only when a petitioner asserts bad faith, deception, or false assurances by the opposing party, and that RAP 18.8 does not give the court authority to waive the statute of limitations. In re Pers. Restraint of Fowler , 9 Wash. App. 2d 158, 164-65, 167, 442 P.3d 647 (2019). We granted review. In re Pers. Restraint of Fowler , 195 Wash.2d 1007, 458 P.3d 790 (2020).

ANALYSIS

I. Statutory Limitations and Inherent Power

¶10 This court has inherent power to waive the statutory limitations period for a habeas challenge. Davis , 188 Wash.2d at 362 n.2, 395 P.3d 998. This flows from our plenary judicial power, which includes original jurisdiction over writs of habeas. Id. ; WASH. CONST. art. IV, § 4. Our legislature has the power to expand and frame habeas style challenges, so long as it does not impinge on the writ's fundamental nature. See Runyan , 121 Wash.2d at 443-44, 853 P.2d 424. Nothing in chapter 10.73 RCW deprives this court of the authority to extend the time bar in response to a timely filed motion based on adequate grounds. See Davis , 188 Wash.2d at 362 n.2, 395 P.3d 998.

¶11 We agree with the Court of Appeals that RAP 18.8 does not grant courts the authority to waive a statute of limitations. RAP 18.8 states that the "appellate court may, on its own initiative or on motion of a party, waive or alter the provisions of any of these rules and enlarge or shorten the time within which an act must be done." RAP 18.8(a).

RAP 18.8 applies to court rules—it does not grant the court the ability to "waive or alter statutes " like the one-year time limit in RCW 10.73.090. In re Pers. Restraint of Benn , 134 Wash.2d 868, 938-39, 952 P.2d 116 (1998) (emphasis added). But this court's inherent power is not related to RAP 18.8. See Davis , 188 Wash.2d at 362 n.2, 395 P.3d 998 (exercising inherent power with no reference to RAP 18.8 ). The inherent power of this court does not depend on the rules of appellate procedure. WASH. CONST. art. IV, §§ 4, 6.

¶12 The Court of Appeals concluded that "[t]he statutory time limit is a mandatory rule that acts as a bar to appellate court consideration of collateral attacks, unless the petitioner shows that a statutory exception applies." Fowler , 9 Wash. App. 2d at 167, 442 P.3d 647 (citing State v. Robinson , 104 Wash. App. 657, 662, 17 P.3d 653 (2001) ). This is incorrect. This court may exercise its inherent power to consider a collateral attack even if it would normally be barred by the statutory time limit.

II. Equitable Tolling

¶13 It is well established that the statutory one-year time bar for filing a PRP is not jurisdictional and may be subject to equitable tolling. Haghighi , 178 Wash.2d at 447, 309 P.3d 459. Equitable tolling is a remedy, used sparingly, that allows an action to proceed "when justice requires it, even though a statutory time period has elapsed." In re Pers. Restraint of Bonds , 165 Wash.2d 135, 141, 196 P.3d 672 (2008) (plurality opinion). We have previously held that equitable tolling in...