In the Matter of The Pers. Restraint of Ernest A. Carter

172 Wash.2d 917

263 P.3d 1241

In the Matter of the Personal Restraint of Ernest A. CARTER, Respondent.

No. 84606–5.

Supreme Court of Washington, En Banc.

Argued May 10, 2011.Decided Oct. 20, 2011.

Melody M. Crick, Pierce County Prosecutor's Office, Tacoma, WA, for Petitioner.Jeffrey Erwin Ellis, Oregon Capital Resource Center, Portland, OR, for Respondent.FAIRHURST, J.

[172 Wash.2d 920] ¶ 1 The State appeals the reversal of Ernest A. Carter's ¹ sentence. The Court of Appeals applied the actual innocence doctrine to hear Carter's untimely personal restraint petition (PRP) and held that Carter was erroneously sentenced as a persistent offender under the Persistent Offender Accountability Act (POAA) of the Sentencing Reform Act of 1981, chapter 9.94A RCW. We reverse and remand because the Court of Appeals erroneously applied the actual innocence doctrine to hear Carter's untimely PRP prior to considering Carter's other claimed exceptions to the time bar in RCW 10.73.090.

FACTS AND PROCEDURAL POSTURE

¶ 2 In 1998, the Pierce County Superior Court entered a judgment and sentence convicting Carter on two counts of robbery in the first degree and sentencing him as a persistent offender to life in prison. Carter's prior offenses included a 1983 California conviction for assault with a firearm on a police officer and a 1990 Oregon conviction for attempted murder.

¶ 3 Carter timely filed a direct appeal raising nine issues including a claim that his prior California assault conviction was not comparable to a Washington strike offense under the POAA and should not have been counted toward his persistent offender sentence. The Court of Appeals affirmed the conviction in an unpublished opinion. State v. Carter, noted at 100 Wash.App. 1028, 2000 WL 420660, at *13. Carter petitioned for review, raising only the comparability issue, and we denied review. State v. Carter, 141 Wash.2d 1026, 11 P.3d 824 (2000). The Court of Appeals issued the mandate on October 18, 2000. Carter then sought habeas relief in federal court, but his petition was dismissed as procedurally barred in March, 2002.

[172 Wash.2d 921] ¶ 4 In 2007, almost seven years after the mandate, Carter filed this PRP, arguing that his due process rights were violated during his 1998 trial when he appeared in shackles and that his persistent offender sentence was unlawful because his California assault conviction was not comparable to a Washington strike offense. Carter offers various reasons why his claims are not time barred. For both claims, he argues he did not receive notice of the one year time bar. For shackling, Carter argues there was a significant change in the law (RCW 10.73.100(6)). For comparability, Carter argues (1) there had been a significant change in the law (RCW 10.73.100(6)), (2) the sentence imposed was in excess of the court's jurisdiction (RCW 10.73.100(5)), (3) Carter's judgment and sentence was facially invalid (RCW 10.73.090), (4) equitable tolling under Washington common law warranted review, and (5) the federal actual innocence doctrine warranted review.

¶ 5 The Court of Appeals dismissed Carter's shackling claim as untimely, applied the actual innocence doctrine to the comparability issue, declined to address his alternative claims for relief, vacated Carter's persistent offender sentence, and remanded for resentencing on the comparability issue. In re Pers. Restraint of Carter, 154 Wash.App. 907, 916, 920, 924 n. 5, 925, 230 P.3d 181 (2010). The State petitioned for review, challenging both the adoption of the actual innocence doctrine, as well as the court's conclusion that Carter has made a sufficient showing of actual innocence.

¶ 6 Carter opposed the State's petition and cross-petitioned for review, raising all previously argued exceptions to the time bar regarding his comparability claim and seeking review of the Court of Appeals' denial of his shackling claim. Carter also requested release pending review under RAP 16.15(b). We granted review of the State's motion for discretionary review, denied Carter's cross motion for discretionary review, and denied Carter's motion for release. In re Pers. Restraint of Carter, 170 Wash.2d 1001, 245 P.3d 226 (2010). Therefore, we review only whether the Court of Appeals erred by applying the actual innocence doctrine to hear Carter's untimely PRP.

ISSUE

¶ 7 Did the Court of Appeals err by applying the actual innocence doctrine to Carter's untimely PRP, where Carter claims he is actually innocent of a persistent offender sentence because his prior foreign offenses are not comparable to Washington strike offenses?

ANALYSIS

¶ 8 The State argues that the Court of Appeals erred when it applied the actual innocence doctrine to avoid the time bar to Carter's untimely PRP. PRPs are not a substitute for a direct appeal, and the availability of collateral relief through a PRP is limited. In re Pers. Restraint of Grasso, 151 Wash.2d 1, 10, 84 P.3d 859 (2004). A PRP filed more than one year after the judgment becomes final is time barred. RCW 10.73.090. However, PRPs are exempt from this time bar if the judgment and sentence is invalid on its face or was otherwise rendered by a court lacking jurisdiction. Id. In addition to these two exemptions, the legislature has provided six exceptions to the time bar. RCW 10.73.100. In general terms, these exceptions apply when a petitioner (1) raises newly discovered evidence, (2) is convicted under an unconstitutional statute, (3) is convicted in violation of double jeopardy, (4) pleads not guilty when the evidence was insufficient to convict, (5) is sentenced in excess of the court's jurisdiction, and (6) has a sentence that is materially impacted by a significant change in the law. RCW 10.73.100. Although Carter's PRP was filed more than one year after his judgment and sentence became final, the Court of Appeals held that Carter's PRP was not time barred. Carter, 154 Wash.App. at 920, 230 P.3d 181. Instead of relying on one of the above exemptions or exceptions, the Court of Appeals applied the federal habeas corpus doctrine of actual innocence to evade the time bar. Id.

Actual Innocence Doctrine

¶ 9 The roots of the actual innocence doctrine are found “in the general principle that federal courts will not disturb state court judgments based on adequate and independent state law procedural grounds.” Dretke v. Haley, 541 U.S. 386, 392, 124 S.Ct. 1847, 158 L.Ed.2d 659 (2004). Ordinarily, a habeas applicant must show cause and prejudice in order to avoid such state procedural bars to collateral attack. Id. at 393. This required showing has at times resulted in an imperfect safeguard against fundamental miscarriages of justice. Id. Therefore, the Supreme Court recognized the actual innocence doctrine as a “narrow exception” to state procedural bars in cases where a fundamental miscarriage of justice would otherwise result if the collateral attack is dismissed. Id. at 388, 393.

¶ 10 The actual innocence doctrine requires that the habeas applicant “demonstrate that the alleged constitutional error has resulted in the conviction of one who is actually innocent of the underlying offense or, in the capital sentencing context, of the aggravating circumstances rendering the inmate eligible for the death penalty.” Id. at 388 (citing Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986); Sawyer v. Whitley, 505 U.S. 333, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992)). The applicable test differs depending on the nature of the habeas applicant's innocence claim. If the petitioner is raising a freestanding constitutional claim, namely, that execution of an innocent person would violate the Eighth Amendment to the United States Constitution, then federal habeas relief may be available only where there is “no state avenue open to process such a claim” and the petitioner can meet the “extraordinarily high” burden of showing actual innocence. Herrera v. Collins, 506 U.S. 390, 417, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993). Alternatively, where the petitioner is alleging actual innocence to avoid a procedural bar that prevents judicial review of an alleged constitutional error, the petitioner's claim of actual innocence takes the form of a “gateway” actual innocence claim. Schlup v. Delo, 513 U.S. 298, 314, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995).

¶ 11 Carter argues that he is actually innocent of being a persistent offender, so the time-bar in RCW 10.73.090 should not bar his PRP challenging the comparability of his California assault conviction to a Washington strike offense. Carter's claim is thus a gateway actual innocence claim because it is not a freestanding claim of constitutional error, but rather an attempt to evade a procedural bar and reach the alleged sentencing error.

¶ 12 Gateway actual innocence claims fall into two subcategories. The first subcategory is implicated when a petitioner claims actual innocence of the crime for which he or she was convicted. Schlup, 513 U.S. at 314, 115 S.Ct. 851. The second subcategory is implicated when the petitioner claims actual innocence of a sentencing enhancement. Id. at 323, 115 S.Ct. 851. Because Carter is arguing that he is actually innocent of his persistent offender sentence, his claim is in the form of a gateway actual innocence claim in the sentencing phase.

¶ 13 For gateway actual innocence claims in the sentencing phase, the federal courts require petitioners to show “by clear and convincing evidence that but for constitutional error, no reasonable juror would find him eligible” for the sentence received. Sawyer, 505 U.S. at 348, 112 S.Ct. 2514. The issue in Sawyer was whether the petitioner had sufficiently proved that he was actually innocent of the aggravating factors giving rise to his death penalty sentence. Id. at 347, 112 S.Ct. 2514. The Sawyer court held that the petitioner must show that but for a constitutional error, inadmissible evidence would have been withheld or other evidence...