In re Griffin

• Decision Date: 06 May 2014
• Docket Number: No. 42012–1–II.
• Citation: In re Griffin, 181 Wash.App. 99, 325 P.3d 322 (Wash. App. 2014)
• Court: Washington Court of Appeals
• Parties: In re the Personal Restraint of Lester Juan GRIFFIN, Petitioner.

181 Wash.App. 99

325 P.3d 322

In re the Personal Restraint of Lester Juan GRIFFIN, Petitioner.

No. 42012–1–II.

Court of Appeals of Washington, Division 2.

May 6, 2014.

Jacqueline McMurtrie, Maria Fernanda Torres, UW Law Clinic–Innocence Project NW, Seattle, WA, for Petitioner.

Anne Mowry Cruser, Clark County Prosecuting Attorney, Vancouver, WA, for Respondent.

LEE, J.

¶ 1 A jury found Lester Juan Griffin guilty of one count of first degree assault with a firearm enhancement and one count of attempted first degree burglary with a firearm enhancement. We affirmed Griffin's conviction. State v. Griffin, noted at 157 Wash.App. 1001, 2010 WL 2836703 (2010). Griffin then filed this personal restraint petition (PRP). The State argues that consideration of Griffin's petition is barred on procedural grounds because his petition was inadequate and was not timely cured. We agree and deny Griffin's petition.

FACTS

¶ 2 A jury found Griffin guilty of one count of first degree assault with a firearm enhancement and one count of attempted first degree burglary with a firearm enhancement. We affirmed Griffin's convictions on direct appeal, and we issued a mandate on December 10, 2010. Griffin filed a timely, 67–page pro se personal restraint petition. Later, Griffin sought, through counsel, permission to file an amended petition in place of his original pro se petition. Griffin filed a timely, eight-page amended petition on December 9, 2011, one day before the expiration of the one-year time bar. RCW 10.73.090(1). Griffin's amended petition baldly alleged six grounds for relief, but it did not contain any supporting factual allegations, legal argument, or evidence.

¶ 3 Also on December 9, Griffin filed a motion to stay consideration of his petition pending the outcome of potential deoxyribonucleic acid (DNA) testing on trial evidence. Griffin's motion for a stay was granted. Ultimately, Griffin determined that DNA testing was not possible because the evidence had been contaminated by other forensic testing. On June 6, 2012, Griffin filed a motion requesting “that the stay be lifted and this Court set the briefing schedule set forth in Part II [of the motion], for the parties to have an opportunity to brief the issues raised in the amended petition.” Spindle (Pefr Mot. to Lift Stay at 3). Griffin's motion to lift the stay was granted. The commissioner's ruling stated:

Petitioner has moved to lift the stay in this case and for permission to file a supplemental petition. Petitioner's motions are granted. Petitioner should, however, be aware that the issues in the supplemental brief may be subject to the one-year time bar stated in RCW 10.73.090 if petitioner did not raise these same issues in a previous, timely petition. See In re Pers. Restraint of Bonds, 165 Wash.2d 135, 139–44 [196 P.3d 672] (2008).

Spindle (Ruling Lifting Stay). The commissioner's ruling also set a briefing schedule ordering that “Petitioner's supplemental petition is due within 60 days of the date of this ruling” Spindle (Ruling Lifting Stay).

¶ 4 On August 13, 2012, Griffin filed a document titled “OPENING BRIEF IN SUPPORT OF AMENDED PERSONAL RESTRAINT PETITION” Griffin presented six specific arguments:

¶ 5 1. The State committed a Brady¹ violation.

¶ 6 2. Griffin received ineffective assistance of counsel by failing to conduct an adequate investigation into allegations of misconduct by the investigating detective.

¶ 7 3. Material facts exist which should have been presented at trial.

¶ 8 4. Griffin received ineffective assistance of counsel by failing to effectively impeach the State's witnesses.

¶ 9 5. Griffin received ineffective assistance of counsel when his counsel failed to object to the State's improper closing arguments.

¶ 10 6. The State committed flagrant and ill-intentioned misconduct during closing argument.

¶ 11 In response, the State filed a brief arguing that consideration of Griffin's petition is barred on procedural grounds. First, the State argues that Griffin filed a supplemental petition rather than a supplemental brief, and raised new issues. Therefore, under our Supreme Court's decision in In re Personal Restraint of Hankerson, 149 Wash.2d 695, 700, 72 P.3d 703 (2003), Griffin's petition is a mixed petition that must be dismissed. Second, the State argues that Griffin's timely amended petition was inadequate and that Griffin could not cure the inadequate amended petition by filing a brief after the statutory time bar has expired. SeeRCW 10.73.090. We agree that Griffin failed to timely cure his clearly inadequate amended petition. Accordingly, Griffin's amended petition is denied.

ANALYSIS

A. Mixed Petition

¶ 12 To support its argument that Griffin has filed a mixed petition, the State argues that Griffin's August 2012 filing should be considered a supplemental petition because the Commissioner's order refers to a supplemental petition; therefore, anything Griffin files in response to the Commissioner's order must be considered a supplemental petition. In contrast, Griffin argues that he filed a motion to lift the stay and set a briefing schedule. Griffin never actually filed a motion to file a supplemental petition.

¶ 13 We accept Griffin's argument that he did not file a supplemental petition in August 2012 because he did not file a motion asking permission to file a supplemental petition. We consider the document Griffin filed as a supplemental brief in support of the amended petition and not a supplemental petition. Therefore, we do not address the State's argument that Griffin has filed a mixed petition that must be dismissed. Hankerson, 149 Wash.2d at 700, 72 P.3d 703.

B. Adequacy and timeliness of Petition

¶ 14 The State also argues that Griffin's amended petition was inadequate and could not be cured by an untimely brief. Griffin contends that any inadequacies in his amended petition have been cured by filing his brief. Griffin primarily argues that we are permitted to liberally interpret our court rules to allow a petitioner to file an adequate petition. Although we agree with Griffin to the extent that we may permit liberal interpretation as to the form of a personal restraint petition, we cannot liberally interpret our court rules in a manner which circumvents the statutorily prescribed time bar. Because the inadequacies of Griffin's amended petition were not timely cured, we deny Griffin's amended petition.

¶ 15 As an initial matter, Griffin's amended petition is indisputably inadequate. In order to obtain relief through a personal restraint petition, the petitioner must prove “either a(1) constitutional error that results in actual and substantial prejudice or (2) nonconstitutional error that ‘constitutes a fundamental defect which inherently results in a complete miscarriage of justice.’ ” In re Pers. Restraint of Monschke, 160 Wash.App. 479, 488, 251 P.3d 884 (2010) (quoting In re Pers. Restraint of Davis, 152 Wash.2d 647, 672, 101 P.3d 1 (2004) (internal quotations marks omitted)). In order to meet this burden, the petitioner “must support the petition with facts or evidence and may not rely solely on conclusory allegations.” Monschke, 160 Wash.App. at 488, 251 P.3d 884 (citing RAP 16.7(a)(2)(i); In re Pers. Restraint of Cook, 114 Wash.2d 802, 813–14, 792 P.2d 506 (1990); In re Pers. Restraint of Williams, 111 Wash.2d 353, 365, 759 P.2d 436 (1988)). Further, the petitioner has the burden of demonstrating “that the ‘factual allegations are based on more than speculation, conjecture, or inadmissible hearsay.’ ” Monschke, 160 Wash.App. at 489, 251 P.3d 884 (quoting In re Pers. Restraint of Rice, 118 Wash.2d 876, 886, 828 P.2d 1086,cert. denied506 U.S. 958, 113 S.Ct. 421, 121 L.Ed.2d 344 (1992)).

¶ 16 Here, Griffin filed an amended petition that did not include even general substantive facts supporting his alleged grounds for relief. It stated six grounds for relief; however, he did not support the stated grounds for relief, even with conclusory allegations.² At a bare minimum, a personal restraint petition must include:

A statement of (i) the facts upon which the claim of unlawful restraint of petitioner is based and the evidence available to support the factual allegations, (ii) why other remedies are inadequate, and (iii) why the petitioner's restraint is unlawful.

RAP 16.7(a)(2). A personal restraint petition need not include legal argument or authority if legal argument and authority is included in accompanying briefing. RAP 16.7(a)(2), 16.10. However, because Griffin's amended petition did not include any facts supporting his bare allegations that his restraint was unlawful, Griffin's amended petition is inadequate on its face and does not meet the bare requirements of RAP 16.7(a)(2) for a personal restraint petition. Simply filing a document labeled a personal restraint petition and alleging broad categories of error does not make the document a personal restraint petition. Accordingly, unless Griffin timely cured the inadequacies of the amended petition, we must deny it.

¶ 17 The State relies on RAP 16.10(a)(1)³ to argue that unless the brief is filed with the petition, it cannot be considered to cure any inadequacies in the petition itself. Griffin argues that under RAP 1.2 this court will liberally construe the court rules to “facilitate the decision of cases on the merits.” RAP 1.2(a). According to Griffin, we should consider his amended petition and his brief as a whole and, as a result, his petition is not inadequate.

¶ 18 Our court rules govern the form of a petition. Therefore, we are free to liberally interpret them to provide flexibility in the form in which the petition is filed. Griffin is correct that we may liberally construe the court rules such that we may consider a petition that makes bald allegations regarding the stated grounds for relief without any supporting facts together with a brief that contains factual allegations, evidence, and legal argument or authority as a complete...