Shumway v. Payne

• Court: Washington Supreme Court
• Writing for the Court: GUY; DURHAM; SANDERS; ALEXANDER
• Citation: Shumway v. Payne, 136 Wn.2d 383, 964 P.2d 349 (Wash. 1998)
• Decision Date: 17 September 1998
• Docket Number: No. 65602-9
• Parties: . Alice PAYNE, Respondent. Supreme Court of Washington, En Banc

Page 383

136 Wn.2d 383

964 P.2d 349

Certification from the United States District Court for the Western District of Washington In Alexis SHUMWAY, Petitioner, v. Alice PAYNE, Respondent.

No. 65602-9

Supreme Court of Washington En Banc.

Argued Jan. 13, 1998.

Decided Sept. 17, 1998.

Russell Hauge, Kitsap County Prosecutor, Pamela B. Loginsky, Deputy, Port Orchard, Jim Krider, Snohomish County Prosecutor, S. Aaron Fine, Deputy, Everett, amicus curiae on behalf of Washington Association of Prosecuting Attorneys.

Sheryl G. McCloud, Allen & Hansen, Todd Maybrown, Seattle, for Petitioner.

Christine Gregoire, Attorney General, Daniel J. Judge, Assistant Attorney General, Olympia, Erin M. Moore, Seattle, for Respondent.

GUY, Justice.

In August 1991, a jury found Alexis Shumway guilty of the first degree premeditated murder of her grandmother. Ms. Shumway has taken advantage of her right to pursue appellate review and to collaterally attack her conviction in the courts of this state, as well as in federal court. She has most recently filed a petition for writ of habeas corpus in the United States District Court for the Western District of Washington. In that proceeding, Respondent Alice Payne, Superintendent of the Washington Corrections Center for Women (hereafter referred to as State), argued that two of the claims raised by Ms. Shumway, those of severance and ineffective assistance of trial counsel, are procedurally barred from the federal court's consideration because they were never presented to this court. The federal magistrate judge agreed that exhaustion of state court remedies is a prerequisite to the habeas action but was uncertain whether Ms. Shumway still had a right to seek review in this court. Accordingly, the federal district court certified the following two questions to this court, pursuant to RCW 2.60 and RAP 16.16:

1. May petitioner obtain discretionary review of her severance and ineffective assistance of counsel claims now, upon a proper showing from counsel regarding her failure to seek such review earlier?

2. Does any mandatory rule of state law bar petitioner from raising these two claims at this time?

We accepted certification of the issues and now answer "no" to the first question and "yes" to the second.

FACTS

Petitioner Alexis Shumway and her mother, Jimmie Jean Shumway, planned and executed the murder of Alexis's maternal grandmother in 1990. Both Ms. Shumway and her mother confessed to the crime, and their pretrial motions to suppress the confessions were denied. Following the denial of motions for severance, Ms. Shumway and her mother were tried together. The confessions of each were admitted at trial, after those portions relating to the other were redacted from the confessions.

Both Alexis Shumway and her mother were convicted. Prior to sentencing, Ms. Shumway was examined by a psychologist who submitted a report, for purposes of sentencing, stating that Ms. Shumway was greatly influenced by her dependent and pathological relationship with her mother. The psychologist opined that this factor, along with others, "clearly impaired her volitional capacity in the face of her mother's plan and desire to end her grandmother's life." Ex. 23 App. F at 5.

Ms. Shumway appealed her conviction, raising eight issues on direct appeal, including whether the trial court erred in denying her motion to sever while admitting the redacted confession of Ms. Shumway's mother. On December 19, 1994, the Court of Appeals affirmed the conviction in an unpublished opinion. State v. Shumway, 76 Wash.App. 1046 (1994). ¹ A motion for reconsideration was denied on January 26, 1995. Ms. Shumway timely filed a petition for review to this court. She raised two issues in that petition, including whether the trial court erred in admitting the redacted confession of her mother. However, she did not raise the severance issue in this court. This court denied review, State v. Shumway, 126 Wash.2d 1023, 896 P.2d 63 (1995), and the Court of Appeals issued its mandate on June 26, 1995.

Ms. Shumway then filed a petition for writ of certiorari in the United States Supreme Court. She raised three issues but did not include the severance issue. The petition for writ of certiorari was denied on January 22, 1996. Shumway v. Washington, 516 U.S. 1095, 116 S.Ct. 819, 133 L.Ed.2d 762 (1996).

Six months later, in July 1996, Ms. Shumway, acting pro se, filed a personal restraint petition in the Court of Appeals. She challenged her conviction on three grounds, one of which was the trial court's refusal to sever and another was ineffective assistance of trial counsel for failing to raise diminished capacity as a defense to the murder charge. The Acting Chief Judge of the Court of Appeals dismissed the petition on September 30, 1996, holding that Ms. Shumway was barred from raising the severance issue on collateral attack because the issue already had been determined on direct appeal. Additionally, the Acting Chief Judge held that Ms. Shumway did not establish a claim of ineffective assistance of counsel. At the time it notified her of the order dismissing her personal restraint petition, the Court of Appeals informed Ms. Shumway of the method and rules governing discretionary review of the Court of Appeals decision. Ms. Shumway did not seek discretionary review of the Court of Appeals order. She does not deny that she was advised of her right to seek discretionary review. Instead, she claims that she did not move for discretionary review in this court because an attorney she consulted on an informal basis may have told her that she did not need to file the motion. ²

Ms. Shumway filed a petition for habeas corpus in federal district court on January 31, 1997. That petition raises essentially six claims for relief, including the severance claim and the ineffective assistance claim. On motion for summary judgment in the federal court action, the State argued that Ms. Shumway had failed to exhaust her remedies in state court with respect to the severance and ineffective assistance claims and thus was barred from raising those issues in a habeas action in federal court. The federal district court agreed that exhaustion on each claim was a prerequisite to the habeas action. As noted above, the district court then asked this court to answer the following:

CERTIFIED QUESTIONS

1. May petitioner obtain discretionary review of her severance and ineffective assistance of counsel claims now, upon a proper showing from counsel regarding her failure to seek such review earlier?

2. Does any mandatory rule of state law bar petitioner from raising these two claims at this time?

ANALYSIS

A federal court will not consider a state prisoner's habeas corpus petition unless the habeas petitioner has exhausted all of the remedies available in the courts of the state. 28 U.S.C. § 2254. The exhaustion requirement is not satisfied until the petitioner demonstrates that each of the claims presented in the habeas petition has previously been presented to the state's highest court, or that no state remedy is available, and that any remedy that did exist was not deliberately bypassed. Harmon v. Ryan, 959 F.2d 1457, 1460 (9th Cir.1992). Presentation of a claim to the state's highest court is necessary to satisfy the exhaustion requirement, even when that court's review is discretionary. Larche v. Simons, 53 F.3d 1068, 1071 (9th Cir.1995).

If a petitioner fails to demonstrate exhaustion, the federal court will determine whether a "mandatory rule of state law" precludes the petitioner from raising the claims in state court at the time review of the habeas petition is sought. Moreno v. Gonzalez, 116 F.3d 409, 411 (9th Cir.1997) (citing Johnson v. Lewis, 929 F.2d 460, 462-64 (9th Cir.1991) and Coleman v. Thompson, 501 U.S. 722, 735 n. 1, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991)); Binford v. Rhode, 116 F.3d 396, 399 (9th Cir.1997). If the habeas petitioner may still raise the claims in state court, "they are not barred from ultimate federal review, but first must be exhausted in state court." Moreno, 116 F.3d at 411 (citing Rose v. Lundy, 455 U.S. 509, 522, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982)); Binford, 116 F.3d at 399. If petitioner no longer has the right to seek review in state court, then federal review of the unexhausted claims is barred. Moreno, 116 F.3d at 411.

Uncertain as to how Washington law would apply under the particular facts of this case, the federal court fashioned its two questions based on the language of the Moreno and Binford decisions.

Our jurisdiction into this matter is limited to answering the questions certified. RCW 2.60.020; RAP 16.16(a); Wilmot v. Kaiser Aluminum & Chem. Corp., 118 Wash.2d 46, 77, 821 P.2d 18 (1991). In order to fully understand the depth of the response sought by the federal court, we look to the order of the federal magistrate judge. That order states:

Before finding these claims procedurally barred, this Court must determine that no state remedy is still available. It is not absolutely clear that a mandatory rule of state law would apply under the circumstances here to preclude petitioner from raising her claims to the Washington Supreme Court. Until that question is resolved, claims number Four and Six [relating to severance and ineffective assistance of counsel] cannot be considered as exhausted.

A collateral attack on a conviction outside the one-year time limit set by Washington state law may be allowed under certain narrowly-defined circumstances. It is possible that the Washington Supreme Court could apply one of these exceptions to allow petitioner to file a new Personal Restraint Petition presenting her unexhausted claims. Such a subsequent petition, even one raising claims raised previously, may be allowed when the ends of justice would be served thereby. New grounds may be raised in a subsequent petition upon a showing of good cause.

Since petitioner's counsel in this matter is the one...