Personal Restraint Petition Of Michiel Glen Oakes ( 2018 )


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    COURT OF APPEALS
    \IASI-1114T OH
    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    )        UNPUBLISHED OPINION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    (unpublished), http://www.courts.wa.gov/opinionsiodf/662295.pdf, review denied,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.
    2
    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.
    3
    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
    4
    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.
    5
    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-
    6
    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
    7
    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."
    8
    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
    9
    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
    10
    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.
    7-'cveg?                 0.6
    WE CONCUR:
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