In re Personal Restraint of Carter

In re the Personal Restraint of: ERNEST CARTER, a/k/a LE'TAXIONE, Petitioner.

No. 37048-4-II

Court of Appeals of Washington, Division 2

March 13, 2012

UNPUBLISHED OPINION

ORDER AMENDING OPINION AND DENYING MOTION FOR RECONSIDERATION

Petitioner Ernest Carter moves this court to reconsider the opinion filed on January 31, 2012. After consideration, this court hereby amends the opinion as follows.

On page 8 of the slip opinion, the last sentence before subsection (C) is edited as shown and the following paragraph inserted:

Consequently, Carter does not succeed in showing that a significant change in the <> law entitles him to relief. See RCW 10.73.100(6).

In supplemental briefing, Carter argues that our Supreme Court's decision in In re Personal Restraint of Lavery, 154 Wn.2d 249, 111 P.3d 837 (2005) constitutes a significant change in Washington law that entitles him to relief. In Lavery, however, the court applied a prior change in the law to exempt the petition from the time bar; Lavery did not, in and of itself, change the law. That change came in State v Freeburg, 120 Wn.App. 192, 198-99, 84 P.3d 292 (2004) as the Lavery court observed:

Freeburg changed the comparability analysis for robbery. . . . [U]ntil Freeburg[, ] . . . the rule in Washington was that federal bank robbery and second degree robbery were comparable as a matter of law. . . . It is clear on their faces that federal bank robbery and robbery under Washington law are not legally comparable, and this was not confirmed until Freeburg effectively overruled [State v. Mutch, 87 Wn.App. 433, 942 P.2d 1018 (1997)] in this regard.

Lavery, 154 Wn.2d at 259-60.

The petitioner in Lavery was entitled to relief because, under Freeburg, his federal bank robbery conviction was not comparable to second degree robbery in Washington and was improperly counted as a strike. Lavery, 154 Wn.2d at 260-62. Accordingly, the Lavery court granted the petition due to a change in the law regarding the comparability of federal bank robbery and second degree robbery. It clarified but did not change the underlying comparability analysis endorsed in State v. Morley, 134 Wn.2d 588, 952 P.2d 167 (1998), which was decided before Carter was sentenced. Lavery does not constitute a significant change in the law that entitles Carter to relief under RCW 10.73.100(6).

This Court further denies the motion for reconsideration. It is

SO ORDERED.

We concur: Van Deren, J. Penoyar, C.J.

Armstrong, J.

We previously considered this personal restraint petition challenging Ernest A. Carter's^[1] 1998 robbery convictions and his sentencing as a persistent offender. We held that Carter's challenge to his shackling during trial was untimely, but we granted relief after holding that Carter was actually innocent of being a persistent offender. The Supreme Court granted the State's petition for review and held that the actual innocence exception did not apply. It then remanded the petition to this court for consideration of Carter's other claimed exceptions to the one-year time bar. Finding that these exceptions do not entitle Carter to relief, we deny the petition.

Facts

When tried in Pierce County on two counts of first degree robbery in 1998, Carter had prior convictions in California and Oregon for assault with a firearm on a peace officer and attempted murder. Consequently, he was eligible for life imprisonment without the possibility of parole under the Persistent Offender Accountability Act (POAA), former RCW 9.94A.120 (1994), if found guilty of one or both robbery counts. The jury convicted Carter on both counts. The trial court concluded that his California assault and Oregon attempted murder convictions were comparable to most serious offenses in Washington and sentenced him to life in prison.

Carter appealed, challenging his convictions on the ground that jurors saw his shackles during trial and also challenging the comparability of his California conviction. In an unpublished opinion, we rejected any claim of error regarding the shackling as well as Carter's contention that his California assault conviction was comparable to third degree assault of a police officer in Washington and thus not a most serious offense. State v. Carter, 100 Wn.App. 1028, 2000 WL 420660, at *5, 12-13. Carter petitioned for review, arguing that his California assault conviction was not comparable to assault in Washington because the California assault statute did not require the specific intent the Washington statute requires. Our Supreme Court denied review, and we issued our mandate on October 18, 2000. When Carter filed a habeas petition raising the comparability issue, a federal district court dismissed it as procedurally barred on March 29, 2002.

Carter filed this personal restraint petition on October 3, 2007. He again sought relief based on the visibility of his shackles during his trial and the comparability issue. We rejected his claim that his petition was not subject to the one-year time bar because he did not receive notice of that statute of limitation from the trial court. In re Pers. Restraint of Carter, 154 Wn.App. 907, 914, 230 P.3d 181 (2010), reversed and remanded, 172 Wn.2d 917, 263 P.3d 1241 (2011). We also rejected his claim that a recent change in the law warranted our reconsideration of the shackling issue. Carter, 154 Wn.App. at 916 (citing RCW 10.73.100(6)). Turning to the comparability issue, we held that the mixed petition rule barred consideration of Carter's claim that there was a significant change in the law material to the comparability issue as well as his claim that the sentence imposed was in excess of the trial court's jurisdiction. Carter, 154 Wn.App. at 917 n.2 (citing RCW 10.73.100(6) and RCW 10.73.100(5)). And, because we granted relief on Carter's claim that he was actually innocent of being a persistent offender, we did not reach his argument that his judgment and sentence was facially invalid under RCW 10.73.090. Carter, 154 Wn.App. at 924 n.6.

The State petitioned for review of our analysis of the actual innocence exception, and Carter cross-petitioned for review, raising all previously argued exceptions to the time bar regarding the comparability claim and seeking review of our denial of his shackling claim. Carter, 172 Wn.2d at 921. The Supreme Court granted review of the State's petition, denied review of Carter's petition, and held that we had erred in granting Carter relief. Carter, 172 Wn.2d at 921, 933-34. The Court also remanded so that we could consider Carter's alternative claims to avoid the time bar; i.e., his argument that there was a significant change in the law material to the comparability issue (RCW 10.73.100(6)), that the sentence imposed was in excess of the court's jurisdiction (RCW 10.73.100(5)), and that his judgment and sentence was facially invalid (RCW 10.73.090). Carter, 172 Wn.2d at 933.

Analysis

I. Exceptions under RCW 10.73.100

Personal restraint petitions generally are prohibited if not filed within one year after the judgment and sentence becomes final. RCW 10.73.090(1). A petition is exempt from the one-year time limit, however, if the judgment and sentence is facially invalid or if it was not rendered by a court of competent jurisdiction. RCW 10.73.090(1). There are also statutory exceptions to the time bar for certain categories of issues. RCW 10.73.100. The petitioner bears the burden of proving that an exception to the RCW 10.73.090 statute of limitation applies. State v. Schwab, 141 Wn.App. 85, 90, 167 P.3d 1225 (2007).

Carter's convictions became final when we filed our mandate on October 18, 2000. RCW 10.73.090(3)(b). Filed in 2007, this petition challenged both his shackling and his sentencing. The Supreme Court did not review our conclusion that Carter had adequate notice of the one-year time limit for filing personal restraint petitions, or our conclusion that his shackling claim was untimely under RCW 10.73.100(6), so these conclusions remain the law of the case and do not warrant further analysis. See State v. Strauss, 119 Wn.2d 401, 412, 832 P.2d 78 (1992) (appellate court's decision supersedes a lower court decision only on issues the appellate court decides).

A. Mixed Petition Rule

The Supreme Court has stated that where one or more of the grounds asserted for relief in a personal restraint petition falls within the exceptions in RCW 10.73.100 and one or more does not, the petition is a "mixed petition" that must be dismissed. In re Pers. Restraint of Coats, __P.3d ___, 2011 WL 5593063, at *23 (Wash. 2011) (Stephens, J., concurring); In re Pers. Restraint of Turay, 150 Wn.2d 71, 85-86, 74 P.3d 1194 (2003) (citing In re Pers. Restraint of Hankerson, 149 Wn.2d 695, 697, 702-03, 72 P.3d 703 (2003); In re Pers. Restraint of Stoudmire, 141 Wn.2d 342, 349, 5 P.3d 1240 (2000)). As the Court has explained,

[O]nce the court determines that any one of the claims raised do not fall within an exception, the petition must be dismissed without any further consideration. Hankerson, 149 Wn.2d at 702-03, 72 P.3d 703. The court will not advise as to which claims are time barred and which are not, nor will the court decide claims under RCW 10.73.100 that are not time barred. Id.

Turay, 150 Wn.2d at 86; see also In re Pers. Restraint of Domingo, 155 Wn.2d 356, 370 n.10, 119 P.3d 816 (2005) (where one of the grounds asserted for relief fall within the exceptions in RCW 10.73.100 and one or more do not, the petition is a mixed petition that must be dismissed without considering the other issues presented). "Only those claims which satisfy the conditions of RCW 10.73.090, namely claims which challenge the facial validity of the judgment and sentence or which challenge the jurisdiction of the court, may be addressed when we...