IN RE HANKERSON, 72844-5.

• Decision Date: 03 July 2003
• Docket Number: No. 72844-5.,72844-5.
• Citation: 149 Wash.2d 695,72 P.3d 703
• Parties: In re the Matter of the Personal Restraint Petition of Gerald HANKERSON, Petitioner.
• Court: Washington Supreme Court

72 P.3d 703

149 Wash.2d 695

In re the Matter of the Personal Restraint Petition of Gerald HANKERSON, Petitioner.

No. 72844-5.

Supreme Court of Washington, En Banc.

Argued March 11, 2003.

Decided July 3, 2003.

Sheryl Gordon McCloud, Seattle, for Petitioner.

Deborah A. Dwyer, Ann Summers, Deputies King Co Pros Ofc/Appellate Unit, for Respondent.

Beth Ann Colgan, Charles Christian Sipos, Perkins Coie LLP, Seattle, Amicus Curiae on Behalf of Barry C. Massey.

MADSEN, J.

The Court of Appeals dismissed Gerald Hankerson's personal restraint petition because it was filed after the one-year time limit of RCW 10.73.090, and at least one of the claims it contains does not fall within an exception in RCW 10.73.100. Petitioner challenges the dismissal, arguing that a reviewing court must evaluate each of the claims raised in a personal restraint petition filed after the one-year limit, identify those claims that are time barred and those that fall within an exception in RCW 10.73.100, and decide the claims that are not time barred. Alternatively, the petitioner asks that we follow a procedure similar to that in federal cases holding that if a habeas corpus petition is filed that contains both exhausted and unexhausted claims, the court must give the petitioner the option of withdrawing the procedurally barred claims or face dismissal of the entire petition.

We hold that if a personal restraint petition with multiple claims is filed after the one year period expires, and the court determines that at least one of the claims is time barred, the petition must be dismissed. The court will not analyze each claim that is raised in order to advise which claims are time barred and which are not.

FACTS

Hankerson and codefendant Alvin Mitchell were tried together for the aggravated first degree murder of Mr. Nai Vang Saeturn. Hankerson testified at trial, but Mitchell did not. Over Hankerson's objection, the trial court admitted, as statements against interest, the testimony of a witness who repeated Mitchell's out of court declarations that incriminated both defendants. The jury was given instructions on accomplice liability. Both defendants were convicted of aggravated first degree murder and sentenced to life in prison without the possibility of parole. Their convictions were affirmed in State v. Mitchell, 117 Wash.2d 521, 817 P.2d 398 (1991).

On January 16, 2002, Hankerson filed a personal restraint petition in the Court of Appeals, arguing, among other things, that this court's decision in State v. Roberts, 142 Wash.2d 471, 14 P.3d 713 (2000) constitutes a significant new change in the law entitling him to relief, both with regard to admission of Mitchell's statements against interest that inculpated Hankerson, and with regard to attribution of aggravating factors to an accomplice. On July 3, 2002, the acting chief judge of Division One of the Court of Appeals dismissed the petition, reasoning that Hankerson's claim regarding admissibility of the out of court statements did not fall within any exception in RCW 10.73.100 to the one-year time limit for filing personal restraint petitions, nor did it fit within the limited exceptions in RCW 10.73.090. Therefore, the acting chief judge concluded, under In re Personal Restraint of Stoudmire, 141 Wash.2d 342, 5 P.3d 1240 (2000) (Stoudmire I), the entire petition must be dismissed even though it is arguable that at least one of Hankerson's claims falls within an exception in RCW 10.73.100.

Hankerson sought discretionary review in this court, which was denied by the court commissioner. The court granted Hankerson's motion to modify the commissioner's ruling and accepted discretionary review. We affirm the Court of Appeals' order dismissing Hankerson's personal restraint petition.

ANALYSIS

RCW 10.73.090(1) provides that "[n]o petition or motion for collateral attack on a judgment and sentence in a criminal case may be filed more than one year after the judgment becomes final if the judgment and sentence is valid on its face and was rendered by a court of competent jurisdiction." However, the one-year limit is not applicable in circumstances identified in RCW 10.73.100.¹ Hankerson maintains that his personal restraint petition raises claims falling within the exception in RCW 10.73.100(6) concerning significant changes in the law that are material to his conviction.

In Stoudmire I, this court considered the mandate in RCW 10.73.100 that a petition is not subject to the time limit in RCW 10.73.090 where the petition "`is based solely on one or more of the following grounds.'" 141 Wash.2d at 348, 5 P.3d 1240 (quoting RCW 10.73.100). We held that in order to give effect to the word "solely," a personal restraint petition is exempt from the one-year time limit of RCW 10.73.090 under RCW 10.73.100 only if all asserted grounds for relief in the petition fall within an exception set forth in RCW 10.73.100. But if one or more of the grounds asserted falls within the exceptions in RCW 10.73.100 and one or more does not, then the petition is a "mixed petition" which must be dismissed. Stoudmire I, 141 Wash.2d at 349, 5 P.3d 1240.

Hankerson maintains, however, that in Stoudmire I this court identified which claims were untimely under RCW 10.73.090, which were untimely under RCW 10.73.100, decided the claims that were timely under RCW 10.73.090, and only then dismissed the rest. Thus, he reasons, the court informed the petitioner of the status of each of the claims, and, in fact, advised him that he could refile one claim arguably falling within an exception in RCW 10.73.100. The petitioner in Stoudmire did refile that claim. In re Pers. Restraint of Stoudmire, 145 Wash.2d 258, 36 P.3d 1005 (2001) (Stoudmire II). Upon that resubmission, the court determined the claim did not fit within the exception said to apply, i.e., a significant change in the law, and thus it was also time barred. Stoudmire II, 145 Wash.2d at 265, 36 P.3d 1005. Hankerson contends that under Stoudmire I the Court of Appeals should have determined the timeliness of each of his asserted claims rather than dismissing the petition outright.

Stoudmire I does not require the analysis urged by Hankerson. Instead, the court dismissed all the claims that did not involve alleged facial invalidity. As to these claims, the court identified one as possibly falling within RCW 10.73.100(6), but clearly did not make any actual determination that it was not time barred. This is obvious because in Stoudmire II, the court held that the claim did not fall within RCW 10.73.100(6) and was in fact time barred. As to the claims involving alleged facial invalidity, the court considered those claims because claims of facial invalidity in the judgment and sentence, or lack of jurisdiction, are claims falling under RCW 10.73.090 and thus not subject to the restrictive language in RCW 10.73.100 ("based solely on one or more of the following grounds"). Nor, under RCW 10.73.090, are such claims subject to the one-year time bar.

The most that can be said about Stoudmire I is that the court showed how its holding will apply. The case did not establish a procedure that in the future courts would have to consider each claim on the merits, identify the time barred claims, identify the claims that are not time barred under RCW 10.73.100, and decide the latter claims. Stoudmire I does, however, provide for resubmittal of claims exempt under RCW 10.73.100.

Hankerson contends, alternatively, that we should adopt the procedure followed in federal courts. "Mixed" federal habeas corpus petitions, i.e., those containing both claims that have been exhausted in state court and claims that have not, must be dismissed for failure to exhaust state remedies. Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). District courts must provide petitioners "with the choice of returning to state court to exhaust [their] claims or of amending or resubmitting the habeas petition to present only exhausted claims to the district court." 455 U.S. at 510,102 S.Ct. 1198. The Ninth Circuit has held that the petitioner has a right to amend the mixed petition to delete the unexhausted claims, and proceed on the exhausted claims, as an alternative to dismissal. E.g., Anthony v. Cambra, 236 F.3d 568, 573 (9th Cir.2000)

; James v. Giles, 221 F.3d 1074, 1077 (9th Cir.2000).²

Hankerson maintains this procedure assures that all issues raised will be resolved in a single case, thus serving the goals of finality and justice. He argues the Court of Appeals dismissal of his petition conflicts with the federal cases, which he views as persuasive precedent.

As the State points out, however, if this procedure did not exist in the federal system, and the courts simply dismissed mixed habeas corpus petitions, then the federal one-year limitation on filing habeas corpus petitions might expire before a petitioner could refile a petition raising only exhausted claims. This is not true in the case of a "mixed petition" under RCW 10.73.100, because by definition any claim that is not time barred may be refiled without danger of untimeliness. Moreover, we perceive that the degree to which a court must examine the substance and merits of an issue to determine whether it is an exhausted claim is not, in most cases, the same as would be necessary to determine whether a claim fits within an exception in RCW 10.73.100.

In addition, under either procedure suggested by Hankerson, the likelihood is that petitioners will file doubtful claims along with legitimate claims and wait to see which the court decides are exempt and either worth proceeding on or refiling. Much more importantly, neither procedure is consistent with RCW 10.73.090 and .100 (see RAP 16.4(d) (incorporating these statutes)) and the legislature's obvious intent that the court is not to consider untimely claims. It violates that intent to require the court to consider the merits of the claims in order to determine...