In re Turay

Citation150 Wash.2d 71,74 P.3d 1194
Decision Date21 August 2003
Docket NumberNo. 73255-8.,73255-8.
CourtUnited States State Supreme Court of Washington
PartiesIn the Matter of the Personal Restraint Petition of Richard Garrett TURAY, Petitioner.

Law Offices of Sheryl Gordon McCloud, Sheryl McCloud, Seattle, for Petitioner.

Norm Maleng, King County Prosecutor, Brooke Elizabeth Burbank, David Hackett, Seattle, for Respondent.

MADSEN, J.

Richard Garrett Turay has filed a personal restraint petition challenging his civil commitment as a sexually violent predator. This personal restraint petition, his third, was filed in the Court of Appeals well over one year from the time of his commitment, thus raising the issue whether RCW 10.73.090's one-year time limit for filing a personal restraint petition applies. We hold that the one-year time limitation applies under RCW 7.36.130, which incorporates the time allowed in RCW 10.73.090. We also reject Turay's claim that there has been a significant change in the law bringing him within an exception to the one-year limitation. Finally, we conclude that Turay has filed, at best, a "mixed petition" that must be dismissed without consideration of other issues.

FACTS

Mr. Turay was committed as a sexually violent predator pursuant to chapter 71.09 RCW. He has a history of convictions of sexually violent crimes, including third degree rape in 1977, second degree rape in 1979, and second degree rape in 1985. He was released on parole for the 1985 conviction in October 1989. Parole was revoked in 1990 when Turay was found guilty of committing fourth degree assault on a woman flight attendant staying in a hotel, and of failing to submit to a polygraph.

On December 15, 1993, while Turay was incarcerated following parole revocation, the King County Prosecutor petitioned for Turay's commitment as a sexually violent predator. The petition did not allege that Turay had committed a "recent overt act," i.e., an act that either caused harm of a sexually violent nature or created a reasonable apprehension of such harm.

Following Turay's trial, the court instructed the jury that to find Turay to be a sexually violent predator, the State had to prove that Turay had been convicted of a crime of sexual violence, specifically, rape in the second degree, and that he suffered from a mental abnormality that makes him likely to engage in predatory acts of sexual violence. The jury was not instructed that the State had to prove that Turay committed a "recent overt act." The jury returned a verdict finding Turay to be a sexually violent predator, and determined that a less restrictive treatment option was not in the best interests of the public. Accordingly, on October 19, 1994, the court ordered Turay committed as a sexually violent predator.

Turay challenged his commitment by both appeal and personal restraint petition, which this court consolidated. In re Det. of Turay, 139 Wash.2d 379, 415-22, 986 P.2d 790 (1999),cert. denied, 531 U.S. 1125, 121 S.Ct. 880, 148 L.Ed.2d 789 (2001). The court affirmed the commitment order. Turay filed a second personal restraint petition in this court. That petition was dismissed on September 7, 2001. On May 3, 2002, Turay filed this third personal restraint petition in the Court of Appeals, chiefly claiming that his detention is unlawful because the State did not allege and prove a recent overt act establishing his present dangerousness. The Court of Appeals transferred the petition to this court. Turay's motion for appointment of counsel to represent him at public expense was granted. The parties were directed to file additional supplemental briefs addressing whether the time limitation in RCW 10.73.090 applies to preclude consideration of Turay's petition.

ANALYSIS

The first issue is whether RCW 10.73.090 applies to this case. 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." (Emphasis added.) RCW 10.73.100 lists exceptions to the one-year rule. Turay maintains, correctly, that a sexually violent predator proceeding under chapter 71.09 RCW is a civil, not a criminal case. See In re Det. of Young, 122 Wash.2d 1, 18-25, 857 P.2d 989 (1993)

; In re Pers. Restraint of Turay, 139 Wash.2d at 415, 986 P.2d 790; accord Seling v. Young, 531 U.S. 250, 121 S.Ct. 727, 148 L.Ed.2d 734 (2001). Consequently, the time limit in RCW 10.73.090 does not directly apply to Turay's personal restraint petition.

We agree with the State, however, that a one-year time bar applies under RCW 7.36.130. RCW 7.36.130 is one of the statutes pertaining to habeas corpus, and it states in part that "[n]o court or judge shall inquire into the legality of any judgment or process whereby the party is in custody, or discharge the party when the term of commitment has not expired" unless "the petition is filed within the time allowed by RCW 10.73.090 and 10.73.100." RCW 7.36.130(1) Conspicuously, RCW 7.36.130 incorporates only the "time allowed" in RCW 10.73.090; it does not incorporate RCW 10.73.090 in its entirety, i.e., it does not incorporate that part of RCW 10.73.090 limiting its application to criminal cases.

We note that the legislature has expressly provided in RCW 71.09.080, concerning the rights of persons committed under the sexually violent predators laws, that nothing in chapter 71.09 "prohibits a person presently committed from exercising a right available to him or her for the purpose of obtaining release from confinement, including the right to petition for a writ of habeas corpus." RCW 71.09.080(4).

Turay argues, however, that the habeas corpus statutes do not apply because he filed a personal restraint petition. He urges that his petition is governed by RAP 16.4, which incorporates RCW 10.73.090 in its entirety, including the statute's limitation to criminal cases. See RAP 16.4(d).

This argument reflects a misunderstanding of the appellate courts' jurisdiction over habeas corpus petitions and the function of the rules of appellate procedure. Turning first to the Court of Appeals, that court's jurisdiction "shall be as provided by statute or by rules authorized by statute." Const. art. IV, § 30(2); see In re Pers. Restraint of Johnson, 131 Wash.2d 558, 565, 933 P.2d 1019 (1997)

. In 1969, the legislature enacted RCW 2.06.030. This statute generally implements the constitutional provision by directing that "the court shall have exclusive appellate jurisdiction in all cases except" and then lists types of cases not relevant here. RCW 2.06.030. The statute does not, however, address original jurisdiction to hear and decide petitions for writs of habeas corpus (or personal restraint petitions). In 1971, the legislature amended RCW 7.36.040 to provide the Court of Appeals with jurisdiction in habeas corpus matters. Laws of 1971, ch. 81, § 31. This court has held that RCW 7.36.040 is a "constitutional and fully effective grant of original habeas corpus jurisdiction to the court of appeals." Holt v. Morris, 84 Wash.2d 841, 845 n. 1, 529 P.2d 1081 (1974),

overruled in part on other grounds by Wright v. Morris, 85 Wash.2d 899, 540 P.2d 893 (1975); see Johnson,

131 Wash.2d at 565,

933 P.2d 1019. There are no other statutes granting such jurisdiction to the Court of Appeals, nor any statutes authorizing this court to establish any such jurisdiction by rule. See State v. Pascal, 108 Wash.2d 125, 131, 736 P.2d 1065 (1987) (noting the absence of any statute granting to any forum the authority to confine the jurisdiction of the Court of Appeals through rule-making power). The Court of Appeals itself has recognized that its original jurisdiction over an application for a writ of habeas corpus is derived from a reading of article IV, section 30, RCW 2.06.030, and RCW 7.36.040.1

In re Habeas Corpus of Olson, 12 Wash.App. 682, 685, 531 P.2d 508 (1975); see 3 Lewis H. Orland & Karl B. Tegland, Washington Practice: Rules Practice RAP 16.3 (5th ed.1998).

This court's jurisdiction of habeas corpus procedures, in contrast, is provided for in article IV, section 4 of the Washington State Constitution and is rooted in a long common law history that includes early expression in the Magna Charta. See Toliver v. Olsen, 109 Wash.2d 607, 609-10, 746 P.2d 809 (1987)

; Honore v. Wash. State Bd. of Prison Terms & Paroles, 77 Wash.2d 660, 663, 466 P.2d 485 (1970). Indeed, a statutory grant of jurisdiction over habeas corpus proceedings to the Supreme Court existed in Washington territorial days, preceding adoption of the state constitution; that statement of jurisdiction finds continued expression in RCW 7.36.040. See In re Rafferty, 1 Wash. 382, 25 P. 465 (1890).

Although the sources of jurisdiction over habeas corpus proceedings are different for the Court of Appeals and this court, the two courts nevertheless have concurrent jurisdiction over habeas corpus proceedings, along with the superior courts. Toliver, 109 Wash.2d at 613, 746 P.2d 809. However, in the appellate courts the proceeding is denominated a "personal restraint petition" and procedures are covered by the rules of appellate procedure governing personal restraint petitions. Id.2 RAP 16.3(a) provides that RAP 16.3 through 16.15 and RAP 16.24 through 16.27 "establish a single procedure for original proceedings in the appellate court to obtain relief formerly available by a petition for writ of habeas corpus ...." (Emphasis added.) The procedure established in the rules "supersedes the appellate procedure formerly available for a petition for writ of habeas corpus" in the Court of Appeals and the Supreme Court. Id.

Thus, whether filed in the Court of Appeals as a petition for a writ of habeas corpus or as a personal restraint petition, the single procedure of RAP 16.3 through 16.15 and RAP 16.24 through 16.27 applies and the...

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