Washington Supreme Court Announces Misconduct of Petitioner’s Own Counsel Can Be Basis for Equitable Tolling in Habeas Proceeding
Vincent Fowler’s convictions for sex offenses were affirmed on appeal, but the Washington Supreme Court remanded for correction of an unrelated error. The superior court entered an amended judgment on October 19, 2016. Fowler then had one year to file a personal restraint petition (“PRP”). RCW 10.73.090, .100. However, before the judgment was even final, Fowler’s brother Darryl hired attorney John Crowley on September 2, 2015, (more than two years before the PRP’s due date of October 20, 2017) and paid him a significant detainer in advance. During Fowler’s incarceration, he was able to speak with Crowley only two times. Crowley falsely assured his client that he was working on the PRP and “had all sorts of plan[s] of what he was going to do.” By June 2017, neither Fowler nor his family could reach Crowley; their numerous calls went straight to voicemail. In August 2017, Fowler learned that Crowley’s phone line was disconnected.
Darryl, suspecting Crowley had abandoned his brother, hired attorney John Henry Browne two weeks before the PRP’s time limitation expired. When Browne attempted to get the case file from Crowley, he discovered that Crowley had resigned in lieu of disbarment for taking clients’ money but doing no work. Crowley had done no work on Fowler’s PRP, and he refused to give Browne the case file.
Browne, aware that the limitations period was about to expire, filed a “placeholder petition” on October 18, 2017, which stated he needed additional time to get Fowler’s legal file and investigate. The Court of Appeals (“COA”) treated the filing as a “motion to file a supplemental petition” and directed Browne to address why the one-year time bar didn’t require dismissal. In March 2018, Browne submitted a supplemental petition arguing that the one-year time bar should be equitably tolled due to prior counsel’s ineffectiveness and that the time limit could be waived under RAP 18.8. The COA, citing In re Pers. Restraint of Haghighi, 309 P.3d 459 (Wash. 2013), stated that “Washington courts require bad faith, deception, or false assurances caused by the opposing party or the court” to justify equitable tolling and ruled that RAP 18.8 doesn’t give the COA authority to waive the statute of limitations. The COA dismissed the PRP as untimely. The Washington Supreme Court granted further review.
The Court agreed that RAP 18.8 did not grant courts authority to waive a statute of limitations because that rule permits courts to expand or shorten the timeframes designated in court rules, not statutes. However, the Washington Supreme Court has inherent power to allow a timely filed motion to extend limitations period to fail a habeas-style challenge to a conviction. In re Pers. Restraint of Davis, 395 P.3d 998 (Wash. 2017). This power flows from the Spreme Court’s plenary judicial power that includes original jurisdiction over writs of habeas, the Court explained. Wash. Const. art. IV, § 4. This power is independent of any of the rules of appellate procedure. Id.
The PRP’s one-year time bar is not jurisdictional and is subject to equitable tolling. Haghighi. In Haghighi, a pro se PRP petitioner had been appointed counsel shortly before the limitations period expired, and counsel sought to supplement the petition with additional claims after the period expired. The Haghighi Court determined that equitable tolling wasn’t warranted because Haghighi had known all the facts relevant to the supplemental claims before the time period expired. But the Haghighi Court did not hold that equitable tolling is limited to malfeasance by the opposing party; consequently, the COA’s statement was in error. The Court reasoned that such a limitation would undermine the purpose of equitable tolling in ensuring fundamental fairness where extraordinary circumstances stood in a petitioner’s way.
In Holland v. Florida, 560 U.S. 631 (2010), the U.S. Supreme Court concluded that the misconduct of a petitioner’s own attorney can give rise to equitable tolling of the federal habeas statute of limitations.
Similarly, in the present case, the Court announced: “We adopt this federal standard to supplement our own.” The Court instructed that petitioners seeking equitable tolling bear the burden of showing (1) they diligently pursued their rights and (2) an extraordinary circumstance prevented a timely filing. Lawrence. Extraordinary circumstances may include, but are not limited to, bad faith, deception, or false assurances by petitioner’s own attorney. Id.
The Court concluded that Fowler had made such a showing, stating that “Crowley’s misconduct is the type of extraordinary circumstance that justifies equitable tolling.” The Court explained that not only did Crowley’s egregious misconduct prevent him from timely filing his PRP, but he also diligently pursued his rights.
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Related legal case
In re Pers. Restraint of Fowler
| Year | 2021 |
|---|---|
| Cite | 2021 Wash. LEXIS 99 (2021) (en banc) |
| Level | State Supreme Court |
| Conclusion | Bench Verdict |
