In re Personal Restraint of Haghighi

• Decision Date: 12 September 2013
• Docket Number: No. 87529–4.,87529–4.
• Citation: 178 Wash.2d 435,309 P.3d 459
• Parties: In the Matter of the Personal Restraint of Nadder Baron HAGHIGHI, Petitioner.
• Court: Washington Supreme Court

178 Wash.2d 435

309 P.3d 459

In the Matter of the Personal Restraint of Nadder Baron HAGHIGHI, Petitioner.

No. 87529–4.

Supreme Court of Washington, En Banc.

Argued Feb. 19, 2013.

Decided Sept. 12, 2013.

Nancy P. Collins, Washington Appellate Project, Seattle, WA, for Petitioner.

Donna Lynn Wise, Attorney at Law, Seattle, WA, for Respondent.

Pamela Beth Loginsky, Washington Assoc. of Prosecuting Atty., Olympia, WA, amicus counsel for Washington Association of Prosecuting Attorney's.

C. JOHNSON, J.

[178 Wash.2d 438]¶ 1 This case presents the question of whether our holding in State v. Winterstein, 167 Wash.2d 620, 220 P.3d 1226 (2009), that the inevitable discovery doctrine is inconsistent with article I, section 7 of the Washington State Constitution applies retroactively to judgments final when the case was decided. Because we hold that Winterstein does not apply retroactively, we must also address Nadder Baron Haghighi's claim that his appellate counsel provided ineffective assistance, which requires first determining whether this claim is timely. We affirm the Court of Appeals and hold that Winterstein announced a new rule and that Haghighi's ineffective assistance of appellate counsel claim is time barred.

Facts and Procedural History

¶ 2 A jury convicted Haghighi of one count of theft in the first degree and seven counts of unlawful issuance of checks or drafts. The unlawful issuance of checks or drafts counts relate to checks drawn on an account he opened with Allstate Bank, which provides only internet banking. The theft count is tied to Venture Bank, a local operation. The underlying issue in this personal restraint petition (PRP) involves the admissibility of evidence obtained by way of a warrant issued in Washington but faxed to Allstate's offices in Illinois. The State does not dispute that this method of securing evidence from Illinois was improper.

¶ 3 Several victims initially identified Haghighi in a photo montage and provided copies of fraudulent checks he had written to them. Based on this information, police obtained a search warrant in Washington for Haghighi's bank records with Allstate. However, Allstate's office is in Illinois, and the detective faxed the warrant to Allstate's offices there. A representative at Allstate then provided the records requested by the detective, which did not comply with Illinois law on the domestication of out-of-state warrants.

[178 Wash.2d 439]¶ 4 Before trial, Haghighi moved to suppress the records on the grounds that the issuing court lacked jurisdiction to issue a warrant that would be served out of state. He did not, however, challenge the finding of probable cause upon which the warrant was issued. Based on the improper search, he argued that the records should be excluded. Although the trial court found the warrant unenforceable in Illinois, it ruled Haghighi's constitutional rights had been properly considered and that under the inevitable discovery doctrine, the Allstate records should not be excluded. The court also denied Haghighi's request for an inevitable discovery evidentiary hearing.

¶ 5 After being convicted, Haghighi appealed. As relevant here, he argued that the State failed to prove it would have inevitably discovered the Allstate records and that the trial court erred in not allowing a hearing on the issue. In an unpublished decision, the Court of Appeals affirmed the convictions, concluding that the State would have inevitably discovered the Allstate records. State v. Haghighi, noted at 151 Wash.App. 1047, 2009 WL 2515775 (2009).

¶ 6 When the Court of Appeals issued its decision, Haghighi's appointed counsel, Casey Grannis, wrote to Haghighi telling him of the decision. He stated that he did not think a motion for reconsideration would be successful but that Haghighi could file one himself if he so chose. Grannis also discussed filing a petition for review. He noted that he had been assigned to represent Haghighi only in the Court of Appeals but that occasionally and at its discretion his office extended the representation to petitions for review. He promised to follow up with Haghighi about whether his office would file a petition for review but informed Haghighi that a petition for review was required if Haghighi planned to file a federal habeas corpus action.

¶ 7 On August 20, 2009, Grannis again wrote Haghighi, telling him about a case pending before this court on a competency issue similar to an issue in Haghighi's case. He offered to file a petition for review on that one issue, unless this court issued an unfavorable ruling before the deadline for filing. He did not believe the other issues warranted a petition for review. Grannis also informed Haghighi that he could file only one petition for review, so all issues needed to be raised. If he wanted to raise additional issues, he should hire an attorney or file pro se.

¶ 8 On September 14, Grannis wrote to Haghighi informing him that this court had issued an unfavorable ruling on the competency issue, so his office would no longer be filing a petition for review. He stated, “My substantive involvement with your direct appeal is now over, although I formally remain your attorney for the direct appeal in the Court of Appeals until the mandate terminating review is issued.” Br. of Pet'r, App. E at 2. The mandate issued on September 25, 2009.

¶ 9 On December 22, Grannis wrote to Haghighi informing him of our decision in Winterstein, where we struck down the inevitable discovery doctrine as an exception to the exclusionary rule. He called this a “major change in the law” and told Haghighi that although he was no longer Haghighi's attorney, Haghighi could file a PRP on the Winterstein issue, but generally only one PRP could be filed and it must be filed within one year. Pet'r's Suppl. Br., App. D at 1.

¶ 10 On March 6, 2010, Haghighi filed a timely PRP arguing several theories, including the Winterstein issue, but did not include an ineffective assistance of appellate counsel theory. Roughly 10 months later, on December 22, the chief judge dismissed all of the issues, except for the Winterstein issue. The judge appointed Grannis's firm to represent Haghighi, but on January 6, 2011, the firm notified the court it could not represent Haghighi due to a conflict, since ineffective assistance of counsel was an issue. The firm did not copy Haghighi on this letter or inform him of this issue.

¶ 11 On January 27, Nancy Collins from the Washington Appellate Project was appointed counsel. She filed an amended PRP and argued that the rule announced in Winterstein should apply to Haghighi and that Grannis had been ineffective in not presenting or preserving the inevitable discovery doctrine issue, especially with Winterstein before this court at the time. In a published opinion, the Court of Appeals rejected both arguments.¹ It held that Winterstein announced a new rule that did not apply retroactively to Haghighi's case, which was final at the time. Further, it held that the ineffective assistance claim was added beyond the one-year time limit for PRPs and that equitable tolling should not be applied. Therefore, the claim was time barred. We granted review of this decision.

Analysis

a. Retroactivity

¶ 12 Since Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), this court has consistently and repeatedly followed and applied the federal retroactivity analysis as established in Teague. Oddly, the concurrence/dissent claims that Teague 's applicability is an “open question,” concurrence in part/dissent in part at 472, but, even before Teague, we “attempted from the outset to stay in step with the federal retroactivity analysis.” In re Pers. Restraint of St. Pierre, 118 Wash.2d 321, 324, 823 P.2d 492 (1992) (citing In re Pers. Restraint of Sauve, 103 Wash.2d 322, 326–28, 692 P.2d 818 (1985)).

¶ 13 In St. Pierre, we followed this precedent and adopted Teague, which we consistently applied in later cases. E.g., In re Pers. Restraint of Scott, 173 Wash.2d 911, 271 P.3d 218 (2012); In re Pers. Restraint of Eastmond, 173 Wash.2d 632, 272 P.3d 188 (2012); In re Pers. Restraint of Rhome, 172 Wash.2d 654, 260 P.3d 874 (2011); State v. Robinson, 171 Wash.2d 292, 253 P.3d 84 (2011); State v. Williams–Walker, 167 Wash.2d 889, 225 P.3d 913 (2010); State v. Kilgore, 167 Wash.2d 28, 216 P.3d 393 (2009); State v. Abrams, 163 Wash.2d 277, 178 P.3d 1021 (2008); In re Pers. Restraint of Domingo, 155 Wash.2d 356, 119 P.3d 816 (2005); State v. Evans, 154 Wash.2d 438, 114 P.3d 627 (2005); In re Pers. Restraint of Markel, 154 Wash.2d 262, 111 P.3d 249 (2005); In re Pers. Restraint of Hinton, 152 Wash.2d 853, 100 P.3d 801 (2004); State v. Hanson, 151 Wash.2d 783, 91 P.3d 888 (2004); State v. Summers, 120 Wash.2d 801, 846 P.2d 490 (1993); In re Pers. Restraint of Rupe, 115 Wash.2d 379, 798 P.2d 780 (1990). Similarly, the Court of Appeals has not questioned the applicability of the Teague framework. E.g., In re Pers. Restraint of Jagana, 170 Wash.App. 32, 282 P.3d 1153 (2012); In re Pers. Restraint of Haghighi, 167 Wash.App. 712, 276 P.3d 311,review granted,175 Wash.2d 1021, 287 P.3d 595 (2012); In re Pers. Restraint of Hacheney, 169 Wash.App. 1, 288 P.3d 619 (2012); State v. Chetty, 167 Wash.App. 432, 272 P.3d 918 (2012).

¶ 14 Here, although Haghighi argues for abandonment of Teague, he—in the concurrence/dissent's own words—“provide[s] no specific alternative.” Concurrence in part/dissent in part at 471 n. 16. In an attempt justify abandonment of our long-settled precedent, the concurrence/dissent points to Danforth v. Minnesota, 552 U.S. 264, 128 S.Ct. 1029, 169 L.Ed.2d 859 (2008), where the United States Supreme Court held that Teague did not bind state courts. But nothing in Danforth is new. We recognized this proposition in 2005 before the Supreme Court ever considered Danforth.Evans, 154 Wash.2d at 448–49, 114 P.3d 627. Moreover, as the concurrence/dissent acknowledges, other states...