In re Stenson

• Decision Date: 24 November 2004
• Docket Number: No. 74593-5.,74593-5.
• Citation: 153 Wash.2d 137,102 P.3d 151
• Parties: In the Matter of the Personal Restraint of Darold R.J. STENSON, Petitioner.
• Court: Washington Supreme Court

102 P.3d 151

153 Wash.2d 137

In the Matter of the Personal Restraint of Darold R.J. STENSON, Petitioner.

No. 74593-5.

Supreme Court of Washington, En Banc.

Considered June 3, 2004.

Decided November 24, 2004.

Sheryl Gordon McCloud, Seattle, for Petitioner/Appellant.

Deborah Snyder Kelly, Lauren Michele Erickson, Clallam Co. Prosc. Atty. Office, Port Angeles, for Appellee/Respondent.

Nancy Lynn Talner, Seattle, for Amicus Curiae (American Civil Liberties Union of Washington).

ALEXANDER, C.J.

In this personal restraint petition (PRP), his third, Darold R.J. Stenson seeks reversal of his death sentence for two counts of premeditated first degree murder with aggravating circumstances. Stenson's primary contention is that the required proportionality review that was engaged in by this court on his direct appeal was insufficient. Although the State addresses this argument, it contends that Stenson's PRP is barred on procedural grounds. The State relies on three grounds for a procedural bar, including a contention that the petition is barred by the abuse of the writ doctrine.¹ Stenson counters the State's abuse of the writ argument, opining that this PRP is not barred on that basis because (1) the attorneys who represented him in his first PRP were not sufficiently qualified, and (2) the status of the death penalty reports upon which his proportionality review was based constitutes new evidence. In our view, Stenson was adequately represented throughout his first PRP, and the status of the death penalty reports does not constitute new evidence. Therefore, we conclude that Stenson's petition is procedurally barred by the abuse of the writ doctrine.

I

In 1994, Stenson was convicted and sentenced to death in Clallam County Superior Court for two counts of premeditated first degree murder with aggravating circumstances. The evidence presented at trial established that in March 1993 Stenson shot and killed his wife, Denise Stenson, and his business partner, Frank Hoerner. Evidence also indicated that Stenson committed these murders in order to collect insurance benefits on his wife, to avoid paying Hoerner money from a business venture, and to "blame" Hoerner for the murder of his wife. State v. Stenson, 132 Wash.2d 668, 681, 940 P.2d 1239 (1997) (referred to hereafter as Stenson I). We affirmed his conviction and sentence on direct appeal. Id. at 760, 940 P.2d 1239.² Stenson has since filed two personal restraint petitions, both of which we denied. In re Pers. Restraint of Stenson, 142 Wash.2d 710, 16 P.3d 1 (2001) (referred to hereafter as Stenson II); In re Pers. Restraint of Stenson, 150 Wash.2d 207, 76 P.3d 241 (2003) (referred to hereafter as Stenson III).

In his direct appeal, Stenson advanced many arguments attacking the guilt and penalty phases of his trial. Concerning the statutorily required proportionality review, Stenson argued that the review conducted by this court was "too vague." Stenson I, 132 Wash.2d at 758, 940 P.2d 1239. He asked us to adopt a more mathematical approach to comparing cases, but we rejected the request. Ultimately, we held that

[w]e have compared this case and all the circumstances of the Defendant and his crime with other first degree aggravated murder[ ] [cases where the defendants] have [or] have not received the death penalty. Given the brutal, calculated nature of the crimes, the motivation of financial gain, and the lack of mitigating circumstances, we conclude the sentence was neither excessive nor disproportionate.

Id. at 760, 940 P.2d 1239. The cases used for comparison were those "cases reported in the Washington Reports or Washington Appellate Reports since January 1, 1965, in which the judge or jury considered the imposition of capital punishment regardless of whether it was imposed or executed, and cases in which reports have been filed with the Supreme Court under RCW 10.95.120." Id. at 757 n. 23, 940 P.2d 1239.

In his first PRP, Stenson argued, unsuccessfully, that he received insufficient representation from his trial attorneys. He was represented in his first PRP by Ronald Ness and Judith Mandel who were appointed by this court. The Rules of Appellate Procedure (RAP) set particular requirements for attorneys who are appointed for a PRP in a capital case. RAP 16.25. Pursuant to these requirements, Ness and Mandel each filed a statement of qualification with this court. Ness' statement provided, in pertinent part, that

I have been practicing since 1973, primarily in the area of criminal defense. I have done four (4) death penalty trials and over six (6) first degree aggravated murder trials. I have done criminal appellate work since becoming an attorney and have handled in excess of fifty (50) appellate cases. I was co-counsel on the death penalty appeal of State v. Cal Coburn Brown, cause number 61320-6. I have lectured in regard to death penalty work. I have been qualified in courts in the State of Washington regarding expert opinion in death penalty litigation.

Statement of Qualifications of Ronald D. Ness, In re PRP of Stenson, No. 66565-6, at 1 (Oct. 9, 1998). Mandel's statement of qualifications provided, in pertinent part, that

I was admitted to practice in 1978 and since admission to practice, I have focused on criminal defense. To date I have been involved in three (3) death penalty trials, five (5) first degree aggravated murder trials and two (2) death penalty appeals; State v. Cal Coburn Brown and State v. Dodd. I have been qualified as an expert in the area of death penalty litigation in courts in the State of Washington. I have given lectures in regards to death penalty litigation at seminars. I have done over thirty (30) appeals throughout my career in addition to the prior death penalty appeals.

Statement of Qualifications of Judith M. Mandel, In re PRP of Stenson, No. 66565-6, at 1-2 (Oct. 14, 1998). We rejected, on their merits, all of the arguments Stenson raised in this first PRP. Stenson II, 142 Wash.2d at 757, 16 P.3d 1.

In his second PRP, Stenson argued that (1) the database used to conduct his proportionality review was inaccurate, (2) the trial court misadvised him concerning his right to allocution, (3) the attorneys appointed for his first PRP lacked the required credentials, (4) one of the aggravating factors he was charged with was impermissibly vague, and (5) the prosecution withheld evidence. Stenson III, 150 Wash.2d at 210-11, 76 P.3d 241. Without discussing the merits of Stenson's claims, we dismissed his second PRP, holding that it was procedurally barred as a "mixed petition." Id. at 221, 76 P.3d 241. Specifically, we determined that Stenson's claim relating to allegedly withheld impeachment evidence did not rise to the level of "newly discovered evidence," an exception to the one-year procedural time bar imposed by RCW 10.73.090. Id. at 217, 220, 76 P.3d 241; see RCW 10.73.100.

Here, in Stenson's third PRP, he argues that the database we use to conduct proportionality review is inaccurate, and therefore, a new proportionality review is required.³

II

For this court to grant relief by a personal restraint petition, relief must be appropriate under RAP 16.4(d), which provides that

[t]he appellate court will only grant relief by a personal restraint petition if other remedies which may be available to petitioner are inadequate under the circumstances and if such relief may be granted under RCW 10.73.090, .100, and.130. No more than one petition for similar relief on behalf of the same petitioner will be entertained without good cause shown.

We have stated that "[a] successive petition seeks '"similar relief"' if it either renews claims already '"previously heard and determined"' on the merits or raises '"new"' issues in violation of the abuse of the writ doctrine." In re Pers. Restraint of Greening, 141 Wash.2d 687, 699, 9 P.3d 206 (2000) (quoting In re Pers. Restraint of Jeffries, 114 Wash.2d 485, 488, 492, 789 P.2d 731 (1990)). As noted above, the State argues that Stenson's PRP is barred as an abuse of the writ.

The abuse of the writ doctrine states that "if the petitioner was represented by counsel throughout postconviction proceedings, it is an abuse of the writ for him or her to raise, in a successive petition, a new issue that was '"available but not relied upon in a prior petition."'" Jeffries,114 Wash.2d at 492,789 P.2d 731 (quoting Kuhlmann v. Wilson, 477 U.S. 436, 444 n. 6, 106 S.Ct. 2616, 91 L.Ed.2d 364 (1986)). The doctrine does not, however, apply if the claim is based upon intervening case law or upon newly discovered evidence, which would have probably changed the outcome of the trial or proceeding. Id. at 492-93, 789 P.2d 731. Stenson does not base this PRP on intervening case law. Thus, for the abuse of the writ doctrine to apply in this case, we must determine (1) whether Stenson was represented by counsel throughout his postconviction proceedings, and (2) whether his claim is based on newly discovered evidence. We will discuss these two requirements in turn below.

A. Postconviction Counsel

Stenson asserts that he was inadequately represented during his postconviction proceedings. More specifically, he argues that his attorneys for his first PRP did not have the credentials required by RAP 16.25 as they lacked experience handling a PRP in a capital case. The State responds that Stenson's attorneys were qualified, especially considering that RAP 16.25 does not require experience in collateral review.

After determining that Ness and Mandel met the requirements set forth in RAP 16.25, this court appointed them to represent Stenson in his first PRP. RAP 16.25 has remained unchanged since it was adopted on December 30, 1997, and provides, in pertinent part, that

[u]nless petitioner is proceeding pro se or is represented by retained counsel, ... the Supreme Court shall appoint counsel to assist in preparing and presenting a first personal restraint petition. Appointed counsel must have demonstrated

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