                                                                                                         FILED
                                                                                                  COU i i OF APPEALS
                                                                                                      DIVISION Tj
                                                                                                 2014 MAY - 6
                                                                                                              AM 8: 27
                                                                                                 STATE ODF WAS: ENcrON
                                                                                                 DY

     IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                     DIVISION II

In re the Personal Restraint of                                                          No. 42012 -1 - II


LESTER JUAN GRIFFIN,
                                                                                   PUBLISHED OPINION
                                        Petitioner.




           LEE, J.--   Ajury found Lester Juan Griffin guilty of one count of first degree assault with a

firearm enhancement and one count of attempted first degree burglary with a firearm

enhancement.           We   affirmed    Griffin's   conviction.    State v. Griffin, noted at 157 Wn. App. 1001

 2010).       Griffin then filed this         personal     restraint       petition (    PRP).     The State argues that


consideration of Griffin's petition is barred on procedural grounds because his petition was


inadequate and was not timely cured. We agree and deny Griffin's petition.

                                                          FACTS


           A jury found Griffin guilty of one count of first degree assault with a firearm

enhancement and one count of attempted first degree burglary with a firearm enhancement. We

affirmed Griffin's convictions on direct appeal, and we issued a mandate on December 10, 2010.

Griffin filed     a    timely, 67 -page   pro se personal restraint petition.              Later, Griffin sought, through


counsel, permission          to file   an amended petition        in   place of    his   original pro se petition.   Griffin


filed a timely, eight - age amended petition on December 9, 2011, one day before the expiration
                      p

of   the   one -year     time bar.     RCW 10. 73. 090( 1).            Griffin's   amended petition    baldly   alleged   six
No. 42012 -1 - II




grounds for relief, but it did not contain any supporting factual allegations, legal argument, or

evidence.




            Also on December 9, Griffin filed a motion to stay consideration of his petition pending

the   outcome      of   potential   deoxyribonucleic   acid ( DNA)         testing   on   trial   evidence.      Griffin's motion


for    a   stay   was    granted.    Ultimately, Griffin determined that DNA testing was not possible

because the       evidence    had been    contaminated       by   other   forensic testing. On June 6, 2012, Griffin


filed a motion requesting "that the stay be lifted and this Court set the briefing schedule set forth

in Part II [ of the       motion],   for the parties to have an opportunity to brief the issues raised in the

amended petition'.'         Spindle ( Peer Mot. to Lift       Stay    at   3).   Griffin's motion to lift the stay was

granted. The commissioner' s ruling stated:.

                    Petitioner has moved to lift the stay in this case and for permission to file a
            supplemental      petition.     Petitioner' s    motions       are   granted.         Petitioner should,
            however, be aware that the issues in the supplemental brief may be subject to the
            one -year time bar stated in RCW 10. 73. 090 if petitioner did not raise these same
            issues in     a previous,   timely   petition.    See In re Pers. Restraint of Bonds, 165
            Wn.2d 135, 139 -44 ( 2008).


Spindle_ (
         Ruling          Lifting Stay).   The                          also
                                                 commissioner's ruling .                        a_
                                                                                                 briefing schedule ordering

that `Petitioner' s      supplemental petition    is due     within   60 days        of   the   date   of   this ruling"   Spindle


    Ruling Lifting Stay).

            On August 13, 2012, Griffin filed a document titled "OPENING BRIEF IN SUPPORT OF

AMENDED PERSONAL RESTRAINT                           PETITION:'           Griffin presented six specific arguments:


            1.          The State   committed a   Brady 1 violation.




1
    Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 ( 1963).

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No. 42012 -1 - II



          2.          Griffin received ineffective assistance of counsel by failing to conduct an

adequate investigation into allegations of misconduct by the investigating detective.

          3.          Material facts exist which should have been presented at trial.


          4.          Griffin received ineffective assistance of counsel by failing to effectively impeach

the State's witnesses.


          5.          Griffin received ineffective assistance of counsel when his counsel failed to object


to the State's improper closing arguments.

          6.          The State committed flagrant and ill-intentioned misconduct during closing

argument.




          In response, the State filed a brief arguing that consideration of Griffin's petition is barred

on procedural grounds.               First, the State argues that Griffin filed a supplemental petition rather


than    a supplemental        brief,   and raised new     issues. Therefore, under our Supreme Coures decision


in In   re     Personal Restraint of Hankerson, 149 Wn.2d 695, 700, 72 P. 3d 703 ( 2003), Griffin's


petition     is   a mixed petition      that   must   be dismissed.   Second, the State argues that Griffin's timely

amended petition was inadequate and that Griffin could not cure the inadequate amended petition


by filing      a   brief   after   the statutory time    bar has   expired.    See RCW 10. 73. 090.   We agree that


Griffin failed to          timely    cure     his clearly inadequate    amended petition.     Accordingly, Griffin's

amended petition is denied.


                                                          ANALYSIS


A.         MIXED PETITION


           To support its argument that Griffin has filed a mixed petition, the State argues that


Griffin's         August    2012     filing    should    be   considered   a   supplemental   petition   because the
No. 42012 -1 - II




Commissionefs order refers to a supplemental petition; therefore, anything Griffin files in

response   to the Commissionefs            order must      be   considered a supplemental petition.        In contrast,


Griffin   argues    that he filed       a motion    to lift the stay   and set a   briefing   schedule.   Griffin never


actually filed a motion to file a supplemental petition.

          We accept Griffin's argument that he did not file a supplemental petition in August 2012


because he did not file a motion asking permission to file a supplemental petition. We consider

the document Griffin filed as a supplemental brief in support of the amended petition and not a


supplemental petition.          Therefore, we do not address the State's argument that Griffin has filed a


mixed petition that must be dismissed. Hankerson, 149 Wn.2d at 700.


B.        ADEQUACY AND TIMELINESS OF PETITION


          The State also argues that Griffin's amended petition was inadequate and could not be

cured by an untimely brief. Griffin contends that any inadequacies in his amended petition have

been cured by filing his brief. Griffin primarily argues that we are permitted to liberally interpret

our court rules to allow a petitioner to file an adequate petition. Although we agree with Griffin


to the extent that we may permit liberal interpretation as to the form of a personal restraint

petition, we cannot liberally interpret our court rules in a manner which circumvents the

statutorily    prescribed     time bar. Because the inadequacies of Griffin's amended petition were not


timely cured, we deny Griffin's amended petition.

          As   an   initial   matter,   Griffin's   amended petition     is   indisputably inadequate. In order to

obtain    relief    through     a   personal   restraint    petition,   the   petitioner   must   prove " either   a (   1)


constitutional error that results in actual and substantial prejudice or ( 2) nonconstitutional error


that `constitutes a fundamental defect which inherently results in a complete miscarriage of



                                                                4
No. 42012 -1 - II



justice." In       re    Pers. Restraint of Monschke,                  160 Wn. App. 479, 488, 251 P. 3d 884 ( 2010)

 quoting In         re   Pers. Restraint of Davis, 152 Wn.2d 647, 672, 101 P. 3d 1 ( 2004) ( internal


quotations marks omitted).                In order to meet this burden, the petitioner`inust support the petition


with   facts      or evidence and        may    not      rely solely      on   conclusory   allegations"   Monschke, 160 Wn.


App.    at   488 ( citing RAP 16. 7( a)( 2)( i);             In re Pers. Restraint of Cook, 114 Wn.2d 802, 813 -14,

792 P. 2d 506 ( 1990);            In re Pers. Restraint of Williams, 111 Wn.2d 353, 365, 759 P. 2d 436

 1988)).         Further, the petitioner has the burden of demonstrating "that the `factual allegations are

based   on more          than   speculation, conjecture, or            inadmissible    hearsay." Monschke, 160 Wn. App.

at 489 ( quoting In re Pers. Restraint of Rice, 118 Wn.2d 876, 886, 828 P.2d 1086, cert. denied

506 U.S. 958 ( 1992)).


           Here, Griffin filed an amended petition that did not include even general substantive facts


supporting his           alleged grounds        for      relief.   It stated six grounds for relief; however, he did not


support      the   stated grounds        for   relief,     even    with   conclusory   allegations?    At a bare minimum, a


personal restraint petition must include:


             A    statement      of (   i) the facts upon which the claim of unlawful restraint of
             petitioner is based and the evidence available to support the factual allegations,




2 For example, Griffin's first ground for relief stated:

             Griffin should be given a new trial or released from confinement pursuant to RAP
             16. 4( c)( 2), because the conviction was obtained and the sentence was imposed in
             violation of his right to effective assistance of counsel at trial and on appeal as
             guaranteed by the Sixth Amendment to the United States Constitution, and Article
             1, section 22 of the Washington State Constitution.


Amended Pers. Restraint Pefr                   at   3.     This failed to allege the specific ground or grounds upon
which    his ineffective          assistance        of counsel      claim was      based.    Griffin's remaining grounds for
relief are stated in a similar manner.



                                                                          5
No. 42012 -1 - I1




            ii) why other remedies are inadequate, and ( iii) why the petitioner's restraint is
          unlawful.




RAP 16. 7( a)( 2).         A personal restraint petition need not include legal argument or authority if

legal   argument      and    authority is included in accompanying                     briefing.   RAP 16. 7( a)( 2), 16. 10.


However, because Griffin's amended petition did not include any facts supporting his bare

allegations that his restraint was unlawful, Griffin's amended petition is inadequate on its face

and does not meet the bare requirements of RAP 16. 7( a)( 2) for a personal restraint petition.


Simply filing a document labeled a personal restraint petition and alleging broad categories of

error   does      not make      the document       a personal      restraint petition.       Accordingly, unless Griffin

timely cured the inadequacies of the amended petition, we must deny it.
                                                              3
          The State        relies   on   RAP 16. 10( a)( 1)       to argue that unless the brief is filed with the


petition,    it   cannot   be   considered    to   cure   any inadequacies in the          petition   itself. Griffin argues


that under RAP 1. 2 this court will liberally construe the court rules to `facilitate the decision of

cases on    the    merits"   RAP 1. 2( a).     According to Griffin, we should consider his amended petition

and his brief as a whole and, as a result, his petition is not.inadequate.


          Our court rules govern the form of a petition. Therefore, we are free to liberally interpret

them to     provide    flexibility       in the form in   which       the   petition   is filed. Griffin is correct that we


may liberally construe the court rules such that we may consider a petition that makes bald

allegations regarding the stated grounds for relief without any supporting facts together with a

3
    RAP 16. 10 states, in relevant part:


                      a) Briefs Allowed. The following briefs may be, but need not be, filed:
                      1) Petitioner' s Opening Brief Petitioner's opening brief, which should be
          filed with the petition.




                                                                  6
No. 42012 -1 - I1



brief that contains factual allegations, evidence, and legal argument or authority as a complete

adequate petition.          See RAP 16. 7, 16. 10.      Further, we may liberally construe the court rules such

that a brief in support of a petition need not be filed with a petition, but rather, may be filed after

the   petition.     RAP 16. 10.    Therefore, if Griffin had timely filed both his amended petition and his

brief, Griffin's         petition would      be   complete.    However, Griffin did not file both his amended


petition and        his brief timely.     Accordingly, we must decide whether Griffin could cure a timely

filed but inadequate amended petition with an untimely brief. The answer is no.

          To decide otherwise would require us to disregard the statutory time bar in RCW

10. 73. 090. Our Supreme Court has held that RCW 10. 73. 090 functions as a statute of limitations


not as a   jurisdictional      statute.      Bonds, 165 Wn.2d        at   140.   Given that RCW 10. 73. 090 functions


as a statute of limitations, we do not have the authority to disregard it under the guise of liberally

interpreting our own court rules. As our Supreme Court has stated:

          The defendant is not seeking a waiver of a court rule, however, but of a statute of
          limitation. RAP 18. 8( ar does not allow the court to waive or alter statutes.

Inre    the   Pers. Restraint     ofBenn,         134Wn.2d868, 939, 952 P. 2d 116 ((1998).           Therefore, to the


extent that Griffin argues that the court rules grant us the authority to accept a petition that is

untimely because it was not sufficient until after the time bar has expired, we disagree.

          Here, Griffin       asks us   to   endorse   the   practice of    filing" placeholdei' petitions. Reply Br. of

Petitioner     at   9.    We decline this request because to do so would allow petitioners to file any

document labeled a personal restraint petition and then later file a document curing the



4 RAP 18. 8( a) allows us to `waive or alter the provisions of any of these rules and enlarge or.
shorten    the time       within which an act must           be done"     Although Griffin relies on RAP 1. 2 rather
than RAP 18. 8( a), he still asks us to rely on court rules to alter the time bar imposed by statute.


                                                                 7
No. 42012 -1 - II



inadequacies      sometime       before this      court considers          the   petition.        A petitioner cannot avoid the


time bar by filing a skeletal, inadequate petition before the statutory deadline, and then file a

document meeting the           requirements        for   an acceptable petition after              the deadline.   Griffin has not


cited any authority supporting the contention that Washington courts accept the practice of filing

placeholder petitions.          DeHeer v. Seattle Post -
                                                       Intelligencer, 60 Wn.2d 122, 126, 372 P.2d 193


 1962) ( " Where no authorities are cited in support of a proposition, the court is not required to


search out authorities, but may assume that counsel, after diligent search, has found none. ").

          Griffin   also states   that "[ h] ere, this Court' s rulings allowed for a placeholder petition and


                          5
for later    briefing. "       Reply   Br.    of   Pet' r   at   9.       Griffin' s argument presumes that this court


evaluated     and    endorsed      Griffin'   s   amended        petition        as    adequate.       Griffin' s presumption is


incorrect.


          The first order granted Griffin' s motion to file the amended petition and stayed


consideration of      the     amended petition while         Griffin investigated               potential   DNA   evidence.   When


the motion was granted, there was no obligation to determine whether Griffin' s amended petition

complied with       the   minimum requirements of                RAP 16. 7.           As explained above, filing a document

labeled a personal restraint petition does not mean that the petitioner has filed an adequate

petition.    Likewise, the order lifting the stay did not endorse Griffin' s petition as adequate.

Rather the ruling lifted the stay Griffin                   requested       and       set   a   briefing   schedule.   Under RAP



5 Griffin, however, does not assert that compliance with this court' s orders entitles him to relief
under  the doctrine of equitable tolling. See Bonds, 165 Wn.2d at 141; In re Pers. Restraint of
Hoisington, 99 Wn. App. 423, 431 - 32, 993 P. 2d 296 ( 2000). At oral argument the State noted

that Griffin has not asserted equitable tolling and suggested that equitable tolling does not apply
in this   case.     Griffin made no effort to acknowledge or respond to the State and has failed to
assert    that we should apply the        doctrine        of equitable       tolling. Therefore, we do not address the
issue any further. See RAP 10. 3( a)( 6).


                                                                      8
No. 42012 -1 - II



16. 10( c)   we      may      order     or   allow   briefing   at   any time.   See also Bonds, 165 Wn.2d at 140.


However, allowing briefing, at counsel' s request, prior to consideration of the petition, does not

require this court to first evaluate the adequacy of the petition.

         This court repeatedly reminded Griffin of the one year time bar in RCW 10. 73. 090.

Because Griffin was repeatedly told that the one year time bar would be applied to any additional

issues or supplemental petitions, Griffin was on notice that the rulings were not altering the time

bar. Therefore, Griffin should have been aware that the time bar expired on December 10, 2011,

one   day    after   he filed his        amended petition and         his   motion   to stay.   This court' s rulings did not


alter the procedural requirements under RAP 16. 7, and the rulings did not alter the time bar

imposed      by   RCW 10. 73. 090.                More importantly, the rulings did not give Griffin permission to,

nor do they absolve Griffin of, filing an amended petition that he knew or should have known did

not meet       any    requirement            of   RAP 16. 7.    Accordingly, we reject Griffin' s assertion that this

court' s earlier rulings granted permission to file an inadequate placeholder petition.


         Finally, Griffin argues that his actions in this case are acceptable because:

         Developing the factual and legal arguments in subsequent pleadings, after DNA
         test results, would ensure that this Court and the State could consider the merits of
         all of [ Griffin' s] claims in a fully informed proceeding. This is a more efficient
         use of everyone' s resources than piecemeal litigation by way of presenting the
         Court with multiple, successive petitions.


Reply    Br.   of    Pet' r   at   7.   Although we agree that judicial efficiency is a laudable goal, filing a

baldly inadequate petition was not necessary to achieve it. Moreover, none of the stated grounds

for relief in Griffin' s amended petition appear to rely in any way on the results of subsequent

DNA testing.          Accordingly, there is no excuse for asserting them without relying on any factual

basis.       Further, Griffin            could     have filed    an   adequate   petition,      asked for a stay and then



                                                                      9
No. 42012 -1 - II



reevaluated     the   merits   of   the   original   claims   when   the stay   was   lifted.   Griffin chose to do

           6
neither.




           Accordingly, we deny Griffin' s petition.




6 In addition, we note that newly discovered evidence, including new DNA evidence, is an
exception      to the time bar                              filing a successive petition. RCW
                                    and can establish good cause        for
10. 73. 100( 1), . 140. Accordingly, although it may not have been the most efficient option,
Griffin would not have been barred from raising claims based on newly discovered DNA
evidence in a subsequent petition.



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