The Washington Supreme Court held in In the Matter of the Personal Restraint of Haghighi that its 2009 decision State v. Winterstein, which invalidated the “inevitable discovery doctrine,” does not apply retroactively to old convictions. The Court then held that the petitioner’s ineffective assistance of appellate counsel claim was untimely and, as such, would not be addressed.
Nadder Baron Haghighi was convicted of theft in the first degree and seven counts of unlawful issuance of checks or drafts. During Haghighi’s trial, the prosecution introduced evidence that was illegally obtained by the State. The trial court allowed this evidence to be presented to the jury under the inevitable discovery rule, which allowed the State to present illegally obtained evidence if it could show that it inevitably would have discovered the same evidence through lawful means during the course of investigation. After his conviction, Haghighi appealed and, through his attorney, argued that the trial court improperly applied the inevitable discovery ruling – Haghighi did not challenge the inevitable discovery rule itself, however. The Court of Appeals affirmed his conviction and Haghighi’s defense attorney informed him that his representation was now complete.
The Washington Supreme Court then decided State v. Winterstein, holding that the inevitable discovery rule was contrary to the Washington constitution and illegally obtained evidence, like that used against Haghighi, could not be presented to the jury. After Winterstein was decided, Haghighi’s now-former attorney advised him of the change in law and advised Haghighi that he could file a personal restraint petition (PRP) on that issue within one year, but did not offer to file the PRP himself. Haghighi then filed a PRP raising the Winterstein issue and several others.
Ten months later, the chief judge reviewed Haghighi’s PRP and appointed Haghighi’s attorney as counsel for review of the Winterstein issue. The attorney notified the court he could not provide representation because Haghighi might argue that the attorney provided ineffective assistance. The court then appointed the Washington Appellate Project to pursue the PRP. Haghighi’s new attorney filed an amended PRP, arguing the first appellate attorney had provided ineffective assistance of counsel by not presenting or preserving a challenge against the inevitable discovery rule, especially since Winterstein was under appellate review when Haghighi’s case was decided.
The Court first held that the Winterstein rule is not retroactive. Therefore, a prisoner whose conviction was finalized before Winterstein was decided cannot have his or her conviction overturned because evidence was admitted under the inevitable discovery doctrine. The court confirmed that Washington still follows the federal rule on retroactivity announced by the Supreme Court in Teague v. Lane even though the Supreme Court later ruled in Danforth v. Minnesota that states are free to construct their own retroactivity rules. Under the Teague rule, if the court announces a new rule of law in a case, that rule only applies to current and future cases, not cases that had already been finally decided. Applying that rule here, the Court found that Winterstein announced a new rule, no exceptions to retroactivity existed, and Haghighi’s conviction was not a current or future case because his appeal was resolved by the time the case was decided.
The Court then ruled that Haghighi’s claim that his attorney provided him ineffective assistance of counsel was added to the PRP too late and the Court wouldn’t consider it. The Court found that the Rules of Appellate Procedure did not allow late amendments and even under trial court rules allowing late amendment, Haghighi’s ineffective assistance of counsel claim was a new and separate claim rather than a true amendment. Finally, the Court ruled that the special procedure of equitable tolling did not require the court to hear the claim, because equitable tolling was for special cases, not “garden variety” claims.
Dissent: The partial concurrence and dissent in part by Justice Gordon McCloud, joined by Justices Stephens and Wiggins concurred only to the extent that the first holding leaves open the question of whether the Teague rule governs retroactivity in Washington. However, the majority expressly rejected this categorization. The dissent on the timeliness issue is a useful survey of some of the statutes, court rules, and cases which make this such an unpredictable area of law.
If Winterstein was a pendulum tick towards an emphasis on error correction, Haghighi is the tock swinging back towards an emphasis on finality, at least for prisoners whose convictions were finalized before Winterstein was decided. Criminal defense attorneys will be relieved that Winterstein was not limited for cases moving forward and they may continue to challenge the introduction of illegally obtained evidence without facing a counterargument that the evidence would have been eventually discovered through lawful means. Prosecutors can stop looking nervously through their old suppression hearing files, resting easy with the knowledge that they will not face a new wave of PRPs by prisoners convicted after illegally obtained evidence was introduced into their trials under the now-invalidated doctrine.
The holding regarding Haghighi’s attempt to amend defies easy categorization other than adding another wrinkle to the highly fact dependent jurisprudence of time limits for PRPs. The Court forthrightly acknowledged two cases in which it had allowed new theories to be added to a PRP after the time bar and distinguished one (In re Personal Restraint of Wilson) because ineffective assistance of counsel was actually “part and parcel” of the underlying claim and the other (In re Personal Restraint of Pirtle) as presenting “extraordinary circumstances” in a death penalty case. The Court listed a number of justifications for it to reach late claims: bad faith, deception, false assurances, facial invalidity of judgment and sentence, double jeopardy, actual innocence claims. All that is certain is that the Court will not consider late amendments to PRPs that purport to amend Winterstein claims by adding an ineffective assistance of appellate counsel claim based on failure to preserve a Winterstein claim.
The Court’s limited holding on timeliness will hardly surprise defense or government attorneys practicing in this area. Because prisoners are only appointed counsel after a judge has reviewed their petition, many PRPs are first drafted pro se by prisoners, then taken up by appellate attorneys who may wish to draw the court’s attention to other issues after the year time limit has run. The take away for petitioners’ attorneys is that they must argue that late ineffective assistance of counsel claims were “part and parcel” of a timely claim.