§ 24.7 Practice and Procedure

• Jurisdiction: Washington

§24.7 PRACTICE AND PROCEDURE

The personal restraint petition procedure set out in RAP 16.3 through 16.15 is in general straightforward. The simplified procedure is designed to streamline the process and allow incarcerated persons to litigate illegal restraint pro se. However, as discussed below, not all potential pitfalls have been eliminated.

(1) Preparation of petition and brief

RAP 16.7 governs the required contents and form of a personal restraint petition. Form 17 in the Rules of Appellate Procedure tracks these requirements. Prisoners, and lawyers new to post-conviction cases, may find it safest to stick to the form. It is available online in Word format. An alternate suggestion for a form to be used by counsel is included in §24.10(2), below.

The first section of Form 17, "Status of Petitioner," seeks information about the petitioner and the history of the case. If there have been any previous collateral attacks, or if the petition raises an issue that was addressed on the merits on direct appeal, the petition should explain why it is not barred. If it is not clear from the dates of previous court rulings why the current petition is timely, that should be explained as well. See §24.6, above.

The second section is entitled "Grounds for Relief." For each ground, there are four requirements. First, the petition should state the legal claim. For example: "Mr. Brown is entitled to a new trial because his trial lawyer was ineffective, in violation of the Sixth Amendment right to counsel and Article I, Section 22 of the Washington Constitution." Although reference to the constitutional provisions is not expressly required when initially stating the ground for relief, it is a good idea. The federal courts will not generally review a claim in a habeas petition if it was not clearly raised in state court as a violation of the federal constitution. Similarly, the Washington courts may not consider a state constitutional claim if it was not clearly raised. RAP 16.7(a)(2)(ii) requires a statement of "why the petitioners restraint is unlawful for one or more of the reasons specified in rule 16.4(c)." As the form seems to contemplate, this requirement is probably satisfied by simply stating a claim that falls within RAP 16.4(c).

Second, the petition must set out the facts supporting the claim. It does not appear that great detail is necessary here as long as the petitioner files a supporting brief explaining the facts in greater detail. But the petition must contain at least the basic facts. For example: "Although lawyer X knew through discovery that Y was an eyewitness to the incident, he failed to interview her or call her as a witness. Had she been called, she would have verified that Mr. Brown was acting in self-defense." Division II recently found a petition deficient because it stated no facts in support of each claim other than the bare bones elements of the legal claims. Because the one-year time limit ran before the petitioner filed a brief with additional facts, the petition was dismissed as untimely. In re Personal Restraint of Griffin, 181 Wn. App. 99, 325 P.3d 322 (2014). The result in Griffin would likely have been different if the brief had been filed simultaneously with the petition, but it is safest to include some facts in the petition itself. Note that RAP 16.7(a)(2)(i) further requires "the evidence available to support the factual allegations." Presumably, that may be provided in a supporting brief and appendix, as discussed below. One way or another, the factual basis for the claim must be clear, and it must be supported by sufficient documentation. Conclusory allegations and a lack of specificity will result in dismissal. In re Williams,111 Wn.2d 353, 364-65, 759 P.2d 436 (1988).

Third and fourth, the petition should contain court decisions, statutes, and constitutional provisions involving similar claims to the one raised. See Form 17. There does not appear to be any requirement to say more than "see supporting brief." Some lawyers, however, find it preferable at least to cite the key case regarding the claim, such as Strickland v. Washington,466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) (ineffective assistance of counsel).

Form 17 also asks for an explanation of why a personal restraint petition is the only way to obtain relief. As noted above, however, there is no longer a requirement that other remedies are inadequate. Unfortunately, the form was not updated when the revisions went into effect.

The next section is the "Statement of Finances." This is needed only for prisoners proceeding at public expense. The petitioner may request that the filing fee and other costs be waived. RAP 16.8(a), 16.15(f), (g). This request should be made in or with the petition in a statement of finances. RAP 16.7(a)(4). The rule requires support of allegations of indigency by "a statement of petitioner's total assets and liabilities." Id. This can be accomplished by statements in the petition and supported in appropriate cases by verification of amounts in the prisoner's account by the incarcerating institution's accounting department. See the discussion of the rights of indigent petitioners in §24.8, below. Private counsel might write in something like this: "Because Mr. Brown is not proceeding at public expense, no financial statement is necessary."

Next is the request for relief, such as "The court should vacate Mr. Brown's conviction and remand for a new trial." Of course, the relief may differ from claim to claim. See §24.5, above, discussing the types of relief available.

The final section is the oath of the petitioner. Either the petitioner or the petitioner's attorney must declare under penalty of perjury that he or she has read the petition, knows its contents, and believes the petition is true. RAP 16.7(a)(6).

RAP 16.7(a)(7) requires a represented petitioner to file a verification that he or she has received the petition and consents to its being filed. The verification must be filed within 30 days after filing the petition. It is good practice to send the client the verification form along with the client's copy of the filed petition. When there is some tension between the lawyer and client regarding claims to be raised, it can be helpful to send the petition and verification in advance of filing. There is little point in filing a petition if the client will not verify it. Verification may be accomplished by a guardian ad litem if the prisoner "has been declared incompetent." Id.

RAP 16.7(a)(2) states: "Legal argument and authorities may be included in the petition, or submitted in a separate brief as provided in rule 16.10(a)." Some lawyers find it most efficient to file a single document entitled "Personal Restraint Petition with Legal Argument and Authorities." Others prefer to file a separate brief.

A separate brief "should" be filed at the same time as the petition. RAP 16.10(a)(1). There is no outright prohibition, however, on filing the brief after filing the petition. Sometimes that may be necessary if the lawyer is retained very close to the filing deadline. In that case, however, the lawyer should be particularly careful that the petition itself is adequate. As noted above, a brief filed after the one-year deadline cannot save an inadequate petition.

RAP 16.10(d) states that the content and style of briefs "is governed by rules 10.3 and 10.4," which apply to direct appeals. Most practitioners, however, do not take literally the requirement in RAP 10.3 of assignments of error and issues pertaining to assignments of error. In the context of a personal restraint petition, the "Grounds for Relief" seem to be an adequate substitute.

(2) Supporting evidence

Although RAP 16.7(a)(2), appears to require only "[a] statement of . . . the facts . . . and the evidence available to support the factual allegations," the petition should include the strongest evidentiary support obtainable. A petition will be dismissed if only conclusory allegations are made and "reasonably available" evidence is not identified. Williams, 111 Wn.2d at 364-65. The court in In re Rice,118 Wn.2d 876, 828 P.2d 1086, cert. denied, 506 U.S. 958 (1992), suggested that the evidentiary requirement is even higher:

[A] mere statement of evidence that the petitioner believes will prove his factual allegations is not sufficient. If the petitioner's allegations are based on matters outside the existing record, the petitioner must demonstrate that he has competent, admissible evidence...