      IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
                          DIVISION ONE


IN THE MATTER OF THE PERSONAL                                  No. 80891-5-I
RESTRAINT OF
                                                               OPINION DENYING
ABDULLAHI NOOR,                                                EMERGENCY MOTION
                                                               FOR RELEASE UNDER
                             Petitioner.                       RAP 16.15(b)


      PER CURIAM – Petitioner Abdullahi Noor is serving an indeterminate life

sentence after being convicted of rape, witness intimidation, assault in the fourth

degree, harassment and three counts of misdemeanor violation of a court order.

This court affirmed his conviction and sentence in 2018. See State v. Noor, 4 Wn.

App.2d 1009, review denied, 192 Wn.2d 1003 (2018). On December 18, 2019,

Noor filed a personal restraint petition raising eight claims he contends justify

reversal of his convictions. This court has requested a response from the State,

the deadline for which is May 4, 2020.

      On April 14, 2020, Noor filed an emergency motion seeking to be released

from prison on personal recognizance or on conditions of release under RAP

16.15(b), claiming that the coronavirus pandemic presents him with an undue risk

of infection. This court requested a response to this motion, which the State filed

on April 21, 2020. A panel of this court, having reviewed the motion and response,

DENIES Noor’s emergency motion.

     Citations and pin cites are based on the Westlaw online version of the cited material.
No. 80891-5-I/2


       RAP 16.15(b) provides:

               (b) Release by Appellate Court of Person in Custody. The
       appellate court may release a petitioner on bail or personal
       recognizance before deciding the petition, if release prevents further
       unlawful confinement and it is unjust to delay the petitioner’s release
       until the petition is determined. The appellate court or the superior
       court in its decision on the merits, or by separate order after a
       decision on the merits, may release a petitioner on bail or on
       personal recognizance. The appellate court may direct the release
       of petitioner with the conditions of release to be determined by a trial
       court.

RAP 16.15(b) does not contemplate the release of a defendant convicted and

sentenced to life in prison before the court had addressed the merits of that

defendant’s petition. The first sentence of this rule was intended to facilitate

release of a petitioner in advance of the time required to prepare and circulate an

opinion.   3 TEGLAND, WASHINGTON PRACTICE: RULES PRACTICE RAP

16.15 (8th ed. 2014). Release is generally authorized under RAP 16.15(b) only

when the defendant has demonstrated a “clearly meritorious case.” 1 Wash. State

Bar Ass’n, Washington Appellate Practice Deskbook §24.7(13) (4th ED. 2016).

We are not in a position to make such a determination on an emergency basis,

particularly when the State has not even had the opportunity to address the merits

of Noor’s petition.

       Under RCW 9.95.062(2), Noor was ineligible from being released during his

direct appeal. Now that his convictions have been affirmed on direct appeal and

are final, we find his argument for release pending consideration of a collateral

attack to be even less compelling. Absent statutory authority, there is no right to

release on bail once a conviction is final. State v. Reese, 15 Wn. App. 619, 621-

22, 550 P.2d 1179 (1976). Noor’s convictions became final in 2018 when the

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No. 80891-5-I/3


Supreme Court denied his petition for review after this court rejected his direct

appeal. Until relief is granted in a personal restraint petition, the convictions are

considered final for all purposes. State v. LaBeur, 33 Wn. App. 762, 764, 657 P.2d

802 (1983).

          In order to warrant release from prison pending the resolution of a habeas

petition, a federal petitioner must show “substantial question” making the

application for release “exceptional and deserving of special treatment in the

interests of justice.” Aronson v. May, 85 S.Ct. 3, 5, 13 L. Ed. 2d 6 (1964); Martin

v. Solem, 801 F. 2d 324, 329 (8th Cir. 1986).

          Noor has not demonstrated any special circumstances warranting his

release pending our consideration of the merits of his collateral attack.                    We

recognize that the novel coronavirus pandemic has raised concerns about the risk

of infection that the prison population faces.                Whether the Department of

Corrections (DOC) is taking adequate steps to mitigate this risk is pending before

our Supreme Court in a mandamus action brought by a group of inmates, Colvin

v. Inslee, No. 98317-8. But Noor does not fall within any of the populations at high

risk of infection. He has presented no evidence that he has any increased risk

factors under current standards set by the Centers for Disease Control and

Prevention. 1 And as of April 23, 2020, the DOC facility in which Noor is confined,

Coyote Ridge Corrections Center, reports no confirmed infections among

incarcerated individuals. 2




1
    https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-at-higher-risk.html
2
    https://www.doc.wa.gov/news/covid-19.htm#status
                                               -3-
No. 80891-5-I/4


       Further, according to the DOC website, on April 13, 2020, Governor Inslee

and the DOC began to implement steps in response to the COVID-19 pandemic

to mitigate any risk to its incarcerated population, including emergency

commutations of sentences for certain low-risk, non-violent offenders, 3 early

release of certain incarcerated individuals through furloughs or emergency medical

releases, 4 and allowing others to serve the remainder of their sentences in the

community. 5 While Noor, who is serving an indeterminate sentence for rape, does

not appear to qualify for release under any of these programs, the stated goal is to

reduce the overall prison population, thereby mitigating any risks Noor may

continue to face while incarcerated.

       Based on the record before us, Noor’s motion for emergency release is

DENIED.




3
  https://www.governor.wa.gov/sites/default/files/COVID-19%20-
%20Commutation%20Order%204.15.20%20%28tmp%29.pdf
4
  https://www.governor.wa.gov/sites/default/files/proclamations/20-50%20-%20COVID-
19%20Reducing%20Prison%20Population.pdf
5
  https://www.doc.wa.gov/news/2020/04162020p.htm
                                           -4-
