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                                                    COURT OF APPEALS
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                                                     STATE OF
                                                     2(118JUN 1 I Ali 90




       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Personal Restraint )        No. 76350-4-1
of                                      )
                                        )        DIVISION ONE
MICHIEL OAKES,                          )
                                        )        UNPUBLISHED OPINION
                      Petitioner.       )
                                        )        FILED: June 11,2018

       BECKER, J. — This personal restraint petition is dismissed because it was

not timely filed.

       Petitioner Michiel Oakes was convicted of murdering Theodore Mark

Stover. The underlying facts are set forth in this court's opinion in Oakes' direct

appeal. State v. Oakes, No. 66229-5-1 (Wash. Ct. App. May 18, 2015)

(unpublished), http://www.courts.wa.gov/opinionsiodf/662295.pdf, review denied,

184 Wn.2d 1024 (2015). To summarize, Oakes arrived at Stover's home, armed

and wearing a bulletproof vest. Oakes shot Stover and left the home with his

body. Stover's body was never recovered. Oakes was arrested and charged with

first degree murder. At trial, Oakes claimed self-defense. After a four-week trial

and four days of deliberation, a jury convicted Oakes as charged. The conviction

was affirmed on direct appeal. Oakes has now filed a personal restraint petition.
No. 76350-4-1/2

                            TIMELINESS OF PETITION

       The State contends the petition must be dismissed as untimely under the

one-year time bar of RCW 10.73.090(1): "No petition or motion for collateral

attack on a judgment and sentence in a criminal case may be filed more than one

year after the judgment becomes final if the judgment and sentence is valid on its

face and was rendered by a court of competent jurisdiction."

       The mandate in the criminal case against Oakes was issued on January

15, 2016, making the judgment final on that date. RCW 10.73.090(3)(b). That

day was a Sunday and the next day was a holiday. Oakes had to file his petition

no later than January 17, 2017, to comply with the statutory one-year limit.

RAP 18.6(a). Oakes mailed the petition on Tuesday, January 17, 2017. It

reached this court and was filed on January 18, 2017, one day after the time limit

expired.

       Oakes contends the time for filing should be extended under RAP 18.8(b).

This is not permitted. The one-year time limit of RCW 10.73.090 is a statutory

limitation period. Courts do not have the authority to waive statutory limitation

periods, as opposed to time limits set down in court rules. State v. Robinson,

104 Wn. App. 657, 665, 17 P.3d 653, review denied, 145 Wn.2d 1002(2001).

The statutory time limit is a mandatory rule that acts as a bar to appellate court

consideration of collateral attacks, unless the petitioner shows that an exception

under RCW 10.73.100 applies. Robinson, 104 Wn. App. at 662. Oakes'

untimely filing does not come within any of the exceptions.




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No. 76350-4-1/3

      Alternatively, Oakes contends the time limit was tolled. The one-year limit

in RCW 10.73.090(1) is subject to equitable tolling. In re Pers. Restraint of

Bonds, 165 Wn.2d 135, 143, 196 P.3d 672(2008). Equitable tolling is an

exception to a statute of limitations that should be used "sparingly." Bonds, 165

Wn.2d at 141. The predicates for equitable tolling are bad faith, deception, or

false assurances, along with the exercise of diligence by the party who seeks to

be exempted from the time limit. Bonds, 165 Wn.2d at 141; Robinson, 104 Wn.

App. at 667. Equitable tolling should not be applied to a garden variety claim of

excusable neglect. Robinson, 104 Wn. App. at 667, 669.

       Oakes did not attempt to file his petition until January 17, 2017, the last

day for timely filing. The only evidence in the record explaining why he did not

achieve filing on that day is a declaration submitted by a legal assistant for

Oakes' attorney, whose office is in Tacoma. According to the legal assistant, he

tried to file by e-mail at some unspecified time during the day but was unable to

do so for unspecified reasons. The legal assistant declares that he contacted

this court by telephone at some unspecified time and was told that filing by mail

would suffice as timely filing if it was postmarked on January 17. The legal

assistant also contacted a legal messenger service at some unspecified time and

learned that it was too late to get the petition delivered by messenger from

Tacoma to Seattle. The legal assistant mailed the petition by overnight mail. It

was received by this court the next morning at approximately 9 a.m. The petition

had many blanks for citations to the record, and it was not verified by Oakes.




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No. 76350-4-1/4

These are hallmarks of a petition that was still a work in progress when the

deadline for filing arrived.

       The legal assistant's declaration states in full as follows:

              On January 17, 2017, after unsuccessfully attempting to file
       the PRP via e-mail, I verified with the Court of Appeals, Division 1
       via a telephone conversation with a court clerk that a timely
       postmarked USPS mailing of the PRP for Michiel Oakes would
       suffice as showing timely filing.
              After verifying with ABC Legal Messenger that they would
       not be able to deliver the PRP to Seattle from Tacoma before the
       court closed, I placed the PRP in an Express Mail Overnight
       envelope and mailed the original to the court, with a copy to the
       Skagit County Prosecuting Attorney's Office on January 17, 2017. I
       printed out a copy of the USPS transaction history that shows
       mailing of the envelope to the court on 1/17/17 and receipt on
       January 18, 2017 at 08:56:00.

       Oakes contends the one-year deadline was equitably tolled by the court

clerk's alleged assurance that his petition would be timely if received by mail the

day after the deadline.

       In Robinson, this court addressed a similar situation, untimely filing of a

motion to withdraw a guilty plea. The motion was sent to the court by priority

mail three days before the deadline, which happened to be on a Friday. A copy

mailed at the same time to the prosecuting attorney arrived on the Friday, but the

motion mailed to the court was file stamped the next Monday. We refused to

adopt a mailbox rule or to find substantial compliance.

       Robinson also argued equitable tolling. She asserted that she was

diligent in pursuing her cause "'and but for either the lateness of the mail or the

failure of the clerk to stamp the motion as filed, she would have filed the motion

before the expirationdate." Robinson, 104 Wn. App. at 667. We rejected this


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No. 76350-4-1/5

argument. "Failing to allow for the possibility of postal delay when a statutory

time limit is three days away appears to us to be garden variety excusable

neglect." Robinson, 104 Wn. App. at 668-69.

       Just as we rejected equitable tolling in Robinson for foreseeable postal

delay, we now reject equitable tolling for foreseeable difficulties with electronic

submission. Oakes'failure to meet the deadline is attributable to his failure to

anticipate that immediate delivery by e-mail might not be possible. Oakes knew

January 17 was the last day and nevertheless chose to wait until January 17 to

attempt filing. On that last day, he learned that e-mail delivery was not available.

By that time, the backstop plan of filing by legal messenger was also not

available. Any assurance Oakes may have received from a court clerk does not

justify equitable tolling under these circumstances. It is not as if, but for his

conversation with the clerk, he would have filed the petition on January 17. He

was unable to file on January 17 due solely to his own neglect in waiting until the

last minute.

                               MERITS OF PETITION

       Even if Oakes' petition had been timely filed, his claims would fail for lack

of merit.

       When considering a personal restraint petition, this court "will reach the

merits of a constitutional issue when the petitioner demonstrates that the alleged

error gives rise to actual prejudice, and will reach the merits of a

nonconstitutional issue when the claimed error constitutes a fundamental defect

which inherently results in a complete miscarriage of justice." In re Pers.


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No. 76350-4-1/6

Restraint of Cook, 114 Wn.2d 802, 813, 792 P.2d 506(1990). "After establishing

the appropriateness of collateral review, a petitioner will be entitled to relief only if

he can meet his ultimate burden of proof, which, on collateral review, requires

that he establish error by a preponderance of the evidence." Cook, 114 Wn.2d at

814.

Disclosure of Evidence

       Oakes alleges the State failed to disclose two pieces of exculpatory

evidence that would have strengthened his claim of self-defense.

       The prosecutor has an affirmative duty to learn of and disclose any

exculpatory or impeachment evidence known to the prosecution or police

investigators that is material to guilt or punishment. Strickler v. Greene, 527 U.S.

263, 280-82, 1198. Ct. 1936, 144 L. Ed. 2d 286 (1999). Such disclosure is

required under Brady v. Maryland, 373 U.S. 83,83 S. Ct. 1194, 10 L. Ed. 2d 215

(1963). To establish a Brady violation, a defendant must demonstrate that the

evidence at issue is favorable to him, either because it is exculpatory or because

it is impeaching, that the evidence was suppressed by the State, either willfully or

inadvertently, and he was prejudiced. State v. Mullen, 171 Wn.2d 881, 895, 259

P.3d 158 (2011). Evidence is material and therefore must be disclosed under

Brady only if there is a reasonable probability that, had the evidence been

disclosed to the defense, the result of the proceeding would have been different.

In re Pers. Restraint of Gentry, 137 Wn.2d 378, 396, 972 P.2d 1250 (1999).

       Oakes claims the State should have disclosed evidence that Stover had

firearms stored on his property on the day of his death. Oakes'theory of self-


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No. 76350-4-1/7

defense depended on convincing a jury that Stover attempted to shoot him when

Oakes arrived at his home. Contrary to this claim, there is no evidence that

Stover had firearms on his property. Oakes has misinterpreted testimony in the

record of a separate civil proceeding that occurred in 2012, involving the

distribution of Stover's estate. See generally In re Estate of Stover, 178 Wn.

App. 550, 315 P.3d 579(2013), review denied, 180 Wn.2d 1005 (2014).

      The estate proceeding included evidence that a sizable check from Stover

to his fiancée was found on Stover's desk after his death. Oakes alleges the

State committed a Brady violation by failing to disclose information about the

check and its placement on the desk. According to Oakes, it is "entirely

consistent with the defense theory" that Stover wrote the check to his fiancée on

the morning he lured Oakes to his home to kill him because he wanted to make

sure his fiancée was taken care of. He argues that he could have used this

information to show that Stover intended and expected to attack Oakes on the

morning of October 28, 2009. But the check was dated more than two months

before Stover's death, undermining the inference that Stover prepared it in

anticipation of combat. This inference is too speculative to be exculpatory.

      To support the alleged Brady violations, Oakes has offered only erroneous

claims and unfounded inferences. He has not established that exculpatory

evidence existed or that it could have affected the trial outcome.

Prosecutorial Misconduct

       In closing argument in the criminal trial of Oakes, the prosecutor remarked

that Stover "was that kind of man that followed those rules." The prosecutor


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No. 76350-4-1/8

twice repeated that Stover followed the rules. The prosecutor was referring to

the fact that Stover had given up his firearms and was avoiding contact with his

ex-wife in compliance with a domestic violence protection order. Oakes argues

that he is entitled to a new trial because the prosecutor's statements were not

supported by the record. According to Oakes, Stover's behavior as shown by the

record was not that of a man who follows rules.

       Oakes did not object to the prosecutor's argument at trial. Failure to

object at trial constitutes a waiver of a claim of prosecutorial misconduct unless it

is established that the misconduct was so flagrant and ill-intentioned that an

instruction would not have cured the prejudice. In re Pers. Restraint of

Glasmann, 175 Wn.2d 696, 704, 286 P.3d 673(2012). In this case, an

instruction to the jury to disregard the remarks would have cured any potential

prejudice. The claim of misconduct has been waived.

Ineffective Assistance of Counsel

       Oakes cites four instances which he claims demonstrate ineffective

assistance by defense counsel at trial. All of them concern counsel's failure to

call expert witnesses.

      "To demonstrate ineffective assistance of counsel, a defendant must make

two showings:(1) defense counsel's representation was deficient, i.e., it fell

below an objective standard of reasonableness based on consideration of all the

circumstances; and (2) defense counsel's deficient representation prejudiced the

defendant, i.e., there is a reasonable probability that, except for counsel's

unprofessional errors, the result of the proceeding would have been different."


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No. 76350-4-1/9

State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). There is a

strong presumption that counsel's representation was effective. McFarland, 127

Wn.2d at 335. "The decision to call a witness is generally a matter of legitimate

trial tactics." State v. Byrd, 30 Wn. App. 794, 799,638 P.2d 601 (1981).

       Oakes first argues that counsel should have called a ballistics expert to

testify that the bullet removed from Oakes' bulletproof vest was not fired from the

firearm in Oakes' possession at the time of his arrest. Such evidence, he claims,

would have tended to prove that Stover shot Oakes. But the State's own ballistic

expert had already concluded that the bullet in Oakes' vest did not match the

firearm found on Oakes at the time of his arrest. An independent expert report

would have been duplicative of the report already provided by the State's ballistic

expert. Counsel's failure to call an independent expert was neither unreasonable

nor prejudicial.

       Second, Oakes contends that counsel should have retained an expert

witness to dispute the State's evidence regarding rigor mortis. At trial, Oakes

testified that he carried Stover's body to a dock and dumped it into the

Swinomish Channel. The State presented evidence that the body, stiffened by

rigor mortis, would have been difficult to carry. The State argued that Oakes lied

about dumping the body at the dock "because he doesn't want us to find the

body. The body will tell the story that he doesn't want us to hear." Oakes

contends an expert witness would have testified that the time line for when rigor

mortis would be most pronounced was not precise and the onset of rigor mortis is

subject to a number of factors. The State's witness conceded these points in his


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No. 76350-4-1/10

trial testimony. Thus the testimony of another expert witness would not have

added new information.

       Third, Oakes argues that his trial counsel should have called an

oceanography expert to explain why law enforcement agents were not able to

find Stover's body in the Swinomish Channel, where Oakes claims to have

dumped it. Oakes declares that counsel discussed retaining an oceanographic

expert but did not believe the issue was critical.

       The State presented evidence that law enforcement officers tried very

hard to find Stover's body, including utilizing cadaver dogs, helicopters, boats

and dive teams. At best, an expert called by Oakes could have testified that tidal

forces could have moved the body beyond the search area. Such evidence

would not have proved that Oakes was telling the truth about what he did with

Stover's body. Counsel's decision not to stage a battle of experts on this

collateral issue was not unreasonable.

    ' Finally, Oakes argues that counsel should have called a psychological

expert to testify about his state of mind both before and after the shooting to

explain his actions. In 2017, a licensed psychologist evaluated Oakes. In the

opinion of the psychologist, Oakes was in a state of extreme emotional distress

before the shooting, brought on by threats from Stover; and after the shooting,

Oakes was in a dissociative state. Oakes contends that such an evaluation

might have convinced a jury that Oakes had a reasonable fear for his life and that

his post-shooting actions were confused and random, not premeditated. But at

trial, Oakes did not claim diminished capacity, and his theory of self-defense did


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No. 76350-4-1/11

not rely on proving extreme emotional distress. Even if Oakes suffered a

dissociative episode after the shooting, that fact does not establish that the

shooting itself was not premeditated. Considering these circumstances, it was

not unreasonable for counsel to refrain from presenting expert testimony about

Oakes' state of mind.

       In short, even if the petition had been filed on time, it does not establish

error. The personal restraint petition is dismissed.



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WE CONCUR:



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