                                                                   FILED
                                                                 JAN. 16, 2020
                                                        In the Office of the Clerk of Court
                                                       WA State Court of Appeals, Division III

         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                            DIVISION THREE

In the Matter of the Personal Restraint of:    )         No. 36800-9-III
                                               )
MARK ELLIS HUEY,                               )         UNPUBLISHED OPINION
                                               )
                     Petitioner.               )

       FEARING, J. — Mark Huey is presently incarcerated at the Washington State

Penitentiary in Walla Walla. Huey’s restraint stems from his 2009 conviction in Yakima

County for murder in the second degree. In a personal restraint petition, Huey challenges

the loss of good time and privileges stemming from a prison infraction hearing. For the

reasons stated below, we dismiss Huey’s petition as moot.

                                           FACTS

       In March 2019, the Department of Corrections issued Mark Huey an infraction for

refusing to follow an order to proceed to or disperse from a particular area, lying to a staff

member, and being terminated from a work/training assignment for negative or

substandard performance. The infraction arose from Huey not receiving the prison job he

desired, lying to his job supervisor about what another supervisor had said, and not

returning to his cell when directed to do so. In turn, Department of Corrections

terminated Huey’s current job.

       After receiving the notice of infraction, Mark Huey received and signed a hearing

notice that scheduled the infraction hearing for March 20, 2019. Because Huey did not
No. 36800-9-III
Pers. Restraint of Huey


provide notice that he intended to call any witnesses at the scheduled hearing, the

Department of Corrections rescheduled the hearing to March 15.

       Mark Huey did not appear at the scheduled time on March 15, and the Department

of Corrections held the hearing in absentia. After reviewing the written reports, the

hearing officer found the infractions committed and imposed a sanction. Huey appeared

shortly after the completion of the hearing, and he protested to the hearing officer about

his inability to testify in his defense. The hearing officer provided Huey with a copy of

the sanction.

       In his personal restraint petition, Mark Huey alleges a lack of adequate notice of

the infraction hearing in violation of administrative and constitutional due process

protections. When the Department of Corrections rescheduled the hearing, it gave Huey

notice on a multi-inmate “call out” sheet posted in Huey’s cell block the afternoon before

the rescheduled hearing. Under WAC 137-28-290(2)(b), the Department must provide an

offender with at least 24 hours advance notice, in writing, of the hearing’s date, time, and

location. Huey agrees that the Department posted the “call out” sheet less than 24 hours

before the rescheduled hearing.

       Mark Huey claims prejudice resulting from the Department’s failure to timely

provide the notice of the rescheduled hearing because it resulted in him being late for the


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No. 36800-9-III
Pers. Restraint of Huey


hearing, not being able to testify in his defense, not having adequate time to collect witness

statements and to request witnesses to testify in his defense, and not being able to

challenge the veracity of the false statements made by staff. The Department defends on

the grounds that WAC 137-28-290 does not create a substantive, enforceable right under

WAC 137-28-140.

       Before this court addressed Mark Huey’s personal restraint petition, the

Department of Corrections, on its own initiative, vacated the infraction findings and

sanctions and granted Huey a new hearing. Accordingly, the Department filed a

supplemental response asking this court to dismiss the petition as moot. Huey, through

appointed counsel, filed a reply to the Department’s response, but did not address the

question of mootness.

                                         ANALYSIS

       “An issue is moot if it is not possible for this court to provide effective relief.

Mootness is a jurisdictional concern and may be raised at any time. ‘When an appeal is

moot, it should be dismissed.’” State v. Deskins, 180 Wn.2d 68, 80, 322 P.3d 780 (2014)

(citations omitted) (quoting Klickitat County Citizens Against Imported Waste v. Klickitat

County, 122 Wn.2d 619, 631, 860 P.2d 390, 866 P.2d 1256 (1993)). Because the




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No. 36800-9-III
Pers. Restraint of Huey


Department of Corrections already afforded Mark Huey with the relief he requested, we

can no longer provide effective relief. Therefore, the petition is moot.

       In limited circumstances, this court will still review a moot petition if it presents an

issue of continuing and substantial public interest. In re Pers. Restraint of Mattson , 166

Wn.2d 730, 736, 214 P.3d 141 (2009). Because Mark Huey does not argue that his

petition falls within that exception, we do not decide whether the issues presented by him

are of continuing and substantial public interest.

                                      CONCLUSION

       The petition is dismissed as moot.

       A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to

RCW 2.06.040.


                                            Fearing, J.
WECON~

   '1 i
siddoway,
                  W~,?-                     Pennell, A.CJ.




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