In re Pers. Restraint of Davis

A=y~ / : . CL:~~,: ' f\ed for record Th\S op\n\on was ' . I X: ?]) }f I i:~ OD(h&- _on,0wj . . . . . CO&MT, l'lllnO/FWlllllNaTQN DA1E' MAY 1 8 2017 ! at t 3 ?JM b.w.M- . f~ . CHIEF JUSTICC - 6- ~t-- 28 In re Pers. Restraint ofDavis, No. 89590-2 (Gordon McCloud, J., concurring) No. 89590-2 GORDON McCLOUD, J. (concurring)--! do not necessarily disagree with the majority's analysis of the issues, based on the briefing that we received in this case. I write, instead, to address a different issue-about enforcement of our court's own rule on appointment of counsel. The lawyers on this case are dedicated, experienced, hardworking professionals; but collateral challenges in death penalty cases is one of the most complicated areas of the law. Our court has therefore adopted a special rule to ensure that even the most expert lawyers are experts in this very specific area of the law. There is a question about how that rule applies to Cecil Davis's lawyers in this case. It should cause us to stop, ensure that postconviction counsel are performing up to our rule-required standards, and address Davis's pro se motion for substitution of counsel 1 with our court's n1le in mind. 1 On April 30, 2016, Davis sent us a letter expressing dissatisfaction with his attorneys. Letter from Cecil E. Davis, Pet'r, to Ronald Carpenter, Supreme Ct. Clerk, Wash. (Apr. 30, 2016). We treated the letter as a motion for appointment of new counsel and directed counsel on both sides to respond. Davis's attorneys reported that they went to Walla Walla and spoke with Davis at the Washington State Penitentiary. Resp. by 1 In re Pers. Restraint ofDavis, No. 89590-2 (Gordon McCloud, J., concurring) I. This Court Has Taken on the Responsibility To Ensure That Petitioner's Counsel on a Personal Restraint Petition in a Death Penalty Case Are Qualified The briefing for Davis was done by counsel that our court appointed. It was briefing on a personal restraint petition (PRP), that is, a vehicle for raising postconviction claims, especially claims that depend on evidence outside the existing court record. See State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995) (PRP is proper vehicle for raising issues that require evidence not in the trial record). That briefing did raise three claims that depend on such evidence outside the record: (1) the claim of ineffective assistance of trial counsel for failure to research, investigate, and obtain expert toxicologist or pharmacologist testimony on whether Davis's untreated diabetes exacerbated his acknowledged intellectual disabilities, (2) the claim of ineffective assistance of trial counsel for failure to ensure Pet'r's Counsel Pursuant to Court Order Entered on May 9, 2016, at 2 (May 23, 2016). According to counsel, Davis was concerned because he had not heard from counsel and "knew from the past that he would get attention ifhe contacted the court." Id. at 3. Counsel agreed to contact Davis every month, and Davis, according to the declaration, no longer requested new counsel. Id. at 1, 3. That made this first motion moot. But on October 3, 2016, Davis again wrote this court, stating that he no longer wished to be represented by his counsel because "they are no longer interested in representing me," that they are "prejudice[d] against 'Black People,"' and that they had "file[d] a P.R.P. asking for my execution; not in so many word[s] but that's the way I took it." Letter from Cecil B. Davis, Pet'r, to counsel and Ronald Carpenter, Supreme Ct. Clerk, Wash. (Oct. 3, 2016). Counsel responded that Davis has mental health and cognitive difficulties and they knew of no reason why the motion should be granted. It remains pending. 2 In re Pers. Restraint ofDavis, No. 89590-2 (Gordon McCloud, J., concurring) presentation of two aunts' mitigating testimony during the penalty phase, and (3) the claim that the trial court applied the wrong legal standard when it determined that Davis did not have intellectual disabilities making him ineligible for the death penalty. Petitioner's briefing clearly identifies deficiencies in trial counsel's performance for failure to research and investigate. But petitioner's filings show the exact same deficiency: he fails to conduct the research and investigation that he claims might have changed the outcome. 2 And the majority has rejected these claims for just that reason. Majority at 9-10, 16-17, 23-25. 2 Specifically, the petition argues that trial counsel failed to engage an expert to investigate whether Davis's intellectual deficiencies were exacerbated by his untreated diabetes-but then (as the majority notes at 23-24) it too fails to present any such expert investigation or conclusions. Am. Pers. Restraint Pet. at 29-35. Without presenting such evidence, the ineffective assistance claim cannot succeed. In fact, there is not even a motion for funds to hire such an expert anywhere in our court's file. It appears that petitioner's counsel believed that they could wait until this court ordered a reference hearing before they engaged such experts. Reply to State's Resp. to Pers. Restraint Pet. at 6 (citing general information, from Prescriber's Digital Reference, regarding the potential side effects of the drugs Davis was administered, and arguing that "[a]t a hearing, Davis will present experts to verify his claims in his PRP"). But see In re Pers. Restraint ofRice, 118 Wn.2d 876, 885-86, 828 P.2d 1086 (1992) (to obtain a reference hearing, petitioner must "state with particularity facts which, if proven, would entitle him to relief'). Similarly, the petition argues that trial counsel failed to ensure presentation of two aunts' testimony during the penalty phase. But, as the majority notes, it does not present any additional evidence about what those aunts would have said (in addition to the material presented and rejected on direct appeal) and how that could have affected the outcome. Majority at 17-18. 3 In re Pers. Restraint ofDavis, No. 89590-2 (Gordon McCloud, J., concurring) The State, for its part, filed a response that argued only two procedural issues--untimeliness and lack of evidence to support the ineffective assistance claims-and failed to address the other, substantive, claims raised. Resp. to Pers. Restraint Pet. at 24 ("reserv[ing]" the right to respond to substantive issues). But, as the majority notes, this court had already decided the timeliness issue adversely to the State. Majority at 5 n.2. Our court nevertheless granted the State's request for additional time within which to file a brief that did respond to the substantive issues. Order Granting Permission to File Br. on Merits, In re Pers. Restraint ofDavis, No. 89590-2 (Wash. Dec. 3, 2015). The State declined to do so. In an ordinary case, we could proceed with insufficient briefing and do our own best research and analysis, despite limited aid from the parties. But this is not an ordinary case. First, it's a death penalty case. Second, it's a case in which the petitioner himself filed a motion for substitution of counsel that remains pending. See supra note 1. Third, it's an exceptional case in which we, ourselves, are responsible for petitioner's counsel-we maintain the list of qualified counsel, and we appoint qualified counsel from that list. Rules of Appellate Procedure (RAP) 16.25, states in part, A list of attorneys qualified for appointment in death penalty personal restraint petitions will be recruited and maintained by a panel created by the Supreme Court. In appointing counsel, the Supreme 4 In re Pers. Restraint ofDavis, No. 89590-2 (Gordon McCloud, J., concurring) Court will consider this list. However, the Supreme Court will have the final discretion in the appointment of counsel in personal restraint petitions in capital cases. Since we have shouldered the duties to appoint counsel for death penalty PRPs and to ensure that those counsel are qualified, we have an obligation to ensure that we fulfill those duties. II. Our Rule Requires That Counsel Appointed To Represent a Petitioner on a PRP in a Death Penalty Case Have Experience with PRPs; There Is No Showing That the Lawyers on Davis's Case Have Such Experience RAP 16.25 governs appointment of counsel on PRPs in capital cases. It provides in relevant part, Appointed counsel must have demonstrated the necessary proficiency and commitment which exemplifies the quality of representation appropriate to capital cases. At least one attorney so appointed must have at least three years of experience in handling appeals or collateral reviews on criminal convictions and must be learned in the law of capital punishment by training or experience. RAP 16.25. This standard differs from the standard for appointment of counsel at capital trials, Superior Court Special Proceedings Rules--Criminal (SPRC) 2; one of the key differences is that it includes the requirement of experience "in handling appeals or collateral reviews." 5 In re Pers. Restraint ofDavis, No. 89590-2 (Gordon McCloud, J., concurring) The importance of such experience for a lawyer in a death penalty case cannot be overstated. This standard came about as a result of the work of the Supreme Court Committee to Study Indigent Appellate Defense in Capital Cases in Washington (Committee), chaired by Justice Richard Guy, in 1995. 3 Following recommendations of a subcommittee composed of members of the defense bar, the prosecution, and the judiciary, 4 the Committee endorsed the belief that "[a] rule should be adopted that provides: 'Counsel appointed in a capital case shall be learned in the law of capital punishment by virtue of training and experience. "'5 The minutes show different views on who should maintain the list and determine postconviction counsel's qualifications. 6 But the final report does not show any dispute about the 3 SUPREME CT. COMM. TO STUDY INDIGENT APPELLATE DEF. IN CAPITAL CASES IN WASH., REPORT TO THE APPELLATE INDIGENT DEFENSE COMMISSION OF THE SUPREME COURT OF WASHINGTON (1995) (Report), [https://perma.cc/7KWX-D8MH]. 4 The minutes for the first meeting indicate that Tim Ford chaired the Assignment of Capital Cases and Qualifications of Defense Counsel Subcommittee and that its members were: "Robert Bomchowitz, Jeffrey Robinson, Jeffrey Sullivan, Paul Weisser, Representative from [Washington Appellate Defender Association], Justice Richard Guy (non voting)." Meeting Min. of Supreme Ct. Comm. To Examine Appellate Representation in Capital Cases (Apr. 7, 1995) at 3 (Minutes), [https://perma.cc/Z5R3- JADQ] 5 Report, supra, at 20 (underlining omitted). 6 Minutes, supra, at 1. 6 In re Pers. Restraint ofDavis, No. 89590-2 (Gordon McCloud, J., concurring) standard. 7 And the standard provided by the Committee is basically the standard that this court adopted in RAP 16.25. The rule, as adopted, uses the disjunctive "or" to indicate that counsel must have prior experience either with appeals or collateral reviews, i.e., PRPs. And, theoretically, substantial experience with one might lessen the problem with lack of experience with the other. But the two are very different. A PRP is an original action, not an appeal or revisory proceeding. It is also an original civil action, not a criminal case. It is therefore more like a federal habeas corpus proceeding or a trial in the need for presentation of factual evidence often outside the record. Lack of experience with that process-which is at the heart of many PRP claims-might well doom the petitioner. I would therefore clarify that the "or" in RAP 16.25 is there because that rule applies to appointment of counsel on death penalty appeals, as well as death penalty PRPs. Experience solely with appeals might suffice for a lawyer appointed in a death penalty appeal. But experience with PRPs is required for at least one of the lawyers appointed on a death penalty PRP. 7 Report, supra, at 20. 7 In re Pers. Restraint ofDavis, No. 89590-2 (Gordon McCloud, J., concurring) Davis's principal attorney's application to the qualifications panel is impressive. 8 He clearly has a wealth of trial experience in complex criminal cases, including murder, aggravated murder, and death penalty cases. He has numerous successes in these difficult cases, too. He is an exceptionally qualified criminal defense trial lawyer and death penalty trial lawyer. He has taught, presented, and assisted other lawyers with their training in those fields. But there is one area in which his qualifications are lacking: his application to the qualifications panel shows no prior experience with PRPs. Indeed, the answer to question 5, "Personal Restraint Petition Experience," is blank. 9 And the answer to the question about prior appellate experience lists only one case. 10 This does not necessarily indicate inability to handle a PRP in a death penalty case; when there is more than one lawyer on a case, each lawyer can bring a different type of expertise. But his cocounsel on this PRP is not even on our list of death penalty PRP-qualified lawyers. Thus, despite the fact that we were the ones who 8 Capital Case Appointment Appl. of [Principal Att'y], Questionnaire for Att'ys regarding Qualifications as Trial, Appellate & Postconviction Counsel under SPRC 2 & RAP 16.25 (Jan. 19, 1999) (on file with court). 9 Id. at 8. 10 Id. at 7. 8 Jn re Pers. Restraint ofDavis, No. 89590-2 (Gordon McCloud, J., concurring) appointed her, I find no record that she has experience in the areas in which the principal attorney is lacking. I think that we should take the time to clarify the requirements of RAP 16.25 and determine whether appointed counsel's credentials comply with those requirements. I would hold that RAP 16.25 requires at least one of the lawyers appointed to a death penalty PRP to have prior experience with PRPs. Based on the limited contents of our files, it appears that counsel's qualifications to handle this complex, collateral challenge, governed by a set of complicated and PRP-specific rules, might be lacking. A hearing on this factual question is therefore necessary. III. Our Rule Also Requires That Counsel Appointed To Represent a Petitioner in a PRP in a Death Penalty Case Be "Learned in the Law of Capital Punishment by Training or Experience"; We Should Interpret That To Mean Learned in How To Present Death Penalty Issues in a PRP, and There Is a Question about Counsel's Abilities in That Regard As discussed above, RAP 16.25 provides in part, "Appointed counsel must have demonstrated the necessary proficiency and commitment which exemplifies the quality of representation appropriate to capital cases. At least one attorney so appointed . . . must be learned in the law of capital punishment by training or experience." 9 In re Pers. Restraint ofDavis, No. 89590-2 (Gordon McCloud, J., concurring) As discussed above, both of petitioner's lawyers are generally experienced, proficient, committed, and learned. But RAP 16.25 cannot be interpreted to require a lawyer with such qualifications in general. I believe that this separate prerequisite to appointment of counsel must also be interpreted to require at least one of the lawyers on a postconviction petition to have background in PRP procedure. Indeed, a similar phrase-"learned in the law applicable to capital cases"-in the statute governing appointment of counsel in federal death penalty cases, 18 U.S.C. § 3005, has been the subject of several federal court decisions. Federal courts have struggled with the meaning of that phrase, but they have consistently held that it means far more than just general trial or appellate expertise. E.g., United States v. Miranda, 148 F. Supp. 2d 292, 294 (S.D.N.Y. 2001) (citing with approval requirements that among other things, included "'distinguished prior experience in the trial, appeal, or post-conviction review of federal death penalty cases, or distinguished prior experience in state death penalty trials, appeals, or post- conviction review that, in combination with co-counsel, will assure high quality representation"' (quoting SUBCOMM. ON FED. DEATH PENALTY CASES OF COMM. ON DEF. SERVS., JUDICIAL CONFERENCE OF THE U.S., FEDERAL DEATH PENALTY CASES: RECOMMENDATIONS CONCERNING THE COST AND QUALITY OF DEFENSE REPRESENTATION at 20 (1998) (some emphasis added), 10 In re Pers. Restraint ofDavis, No. 89590-2 (Gordon McCloud, J., concurring) http://www.uscourts.gov/sites/default/files/original_spencer_report.pdf, [https://perma.cc/A998-2EHQ])); see United States v. Boone, 245 F.3d 352, 360 (4th Cir. 2001) ("[t]he Tenth Circuit held that counsel must now be 'learned in the law applicable to capital cases' not merely 'learned in the law' as was necessary under the previous version of [the statute]" (quoting United States v. McCullah, 76 F.3d 1087, 1098 (10th Cir. 1996))). I think that we should take the time to clarify the meaning of that phrase in our RAP 16.25. I read that rule, in light of its background, to require that (1) at least one of the lawyers appointed to the PRP must have prior experience with PRPs and (2) that prior PRP-experienced lawyer be "learned in the law of capital punishment" as it relates to PRPs. RAP 16.25. The presentation of the ineffective assistance of counsel claims in this death penalty PRP might be wanting under that standard. As discussed above, Davis raised two claims of ineffective assistance of counsel-one concerning trial counsel's failure to research, investigate, and obtain expert toxicologist or pharmacologist testimony on whether Davis's untreated diabetes exacerbated his acknowledged intellectual disabilities and one concerning trial counsel's failure to ensure presentation of two relatives' testimony during the penalty phase. But the majority correctly faults petitioner's briefing for suffering 11 In re Pers. Restraint of Davis, No. 89590-2 (Gordon McCloud, J., concurring) the exact same deficiency that plagued trial counsel: that the briefing fails to present the research and investigation that it claims might have changed the outcome. And the majority has rejected these claims of ineffective assistance for just that reason. Majority at 16-17, 23-24. To be sure, one plausible explanation is that the lawyers did the investigation and research but found no support for this claim. That, however, is doubtful; they made no request for funding for either a toxicologist or a pharmacologist, so it is hard to believe that any such expert gave them a report that sank this claim. It may be that petitioner's counsel simply misunderstood the requirements for presenting factual data and obtaining a hearing in a PRP. See supra note 2. The presentation of the Hall v. Florida claim raises a similar red flag. _U.S. _, 134 S. Ct. 1986, 188 L. Ed. 2d 1007 (2014). Hall held that following Atkins v. Virginia, 536 U.S. 304, 321, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002), the Eighth Amendment, U.S. CONST. amend. VIII, bars state courts from excluding all exploration of a capital defendant's intellectual disability solely on the basis that his or her IQ (intelligence quotient) score was more than 70. 134 S. Ct. at 1990. And Davis's counsel are correct that Washington's RCW 10.95.030(2)(a) might be interpreted to permit what the Supreme Court has declared unconstitutional-indeed, this court did interpret it that way in Davis's 12 In re Pers. Restraint ofDavis, No. 89590-2 (Gordon McCloud, J., concurring) direct appeal. See majority at 8 & n.4 (acknowledging our statement in that appeal that "'[t]o have an intellectual disability considered by RCW 10.95.130(2)(d), the defendant's IQ must be 70 or below' ... as well as our erroneous conclusion that at Davis's trial 'no mental health expert testified that Davis's IQ was 70 or below"' (quoting State v. Davis, 175 Wn.2d 287, 374, 290 P.3d 43 (2012))). But there is no evidence that the trial court interpreted RCW 10.95.030(2)(a) in that same unconstitutional manner at Davis's resentencing. Instead, as the majority points out, the trial judge at that resentencing hearing admitted three defense expert witnesses' testimony on intellectual disability and concluded that Davis was eligible for execution because "[n]o witness ... gave the opinion that [he] was mentally retarded." Clerk's Papers at 1264 (State v. Davis, No. 80209-2 (Wash. Sept. 20, 2012)). Counsel now argue that these witnesses' testimony-evidence the trial court already considered-should be reconsidered in light of Hall. They are certainly correct that Davis would be entitled to a new hearing on intellectual disability if he could show a possibility of prevailing under Hall's standard. See Brumfield v. Cain, _U.S. __, 135 S. Ct. 2269, 2281-82, 192 L. Ed. 2d 356 (2015) (even under deferential standard by which federal courts review habeas corpus claims challenging state court convictions and sentences, state court violated Atkins's 13 In re Pers. Restraint ofDavis, No. 89590-2 (Gordon McCloud, J., concurring) protections when it denied the petitioner's request for a new hearing on intellectual disability; this was true in part because "[a]t his pre-Atkins trial, Brumfield had little reason to investigate or present evidence relating to intellectual disability"). But they have offered no expert testimony to that effect. Majority at 11 (PRP counsel "has [not] ... made any effort to show that had the trial court followed the procedures [Davis] now advocates, a different result would have occurred"). Again, this raises concerns about counsel's knowledge of PRP requirements. As with the ineffective assistance claims, counsel does not argue that Davis actually has an intellectual disability under a proper, post-Hall standard. Instead, they argue only that the mitigation evidence Davis submitted at his 2007 resentencing "is critical to a determination of intellectual disability and should be explored in that context before a sentencing jury." Am. Pers. Restraint Pet. at 15-18 (emphasis added). As with the ineffective assistance claims, this might reflect a failure to understand the requirements for raising a material question of fact in a PRP. Accordingly, I think that under RAP 16.25, we have the obligation to explore whether this aspect of the Hall claim should have been further researched, investigated, and briefed, and, if so, whether counsel's performance in this particular collateral challenge fell below the familiarity-with-PRPs and "learned in the law of capital punishment" standards. RAP 16.25. 14 In re Pers. Restraint ofDavis, No. 89590-2 (Gordon McCloud, J., concurring) Finally, the Apprendi 11 claim raises similar concerns. The petition raises the claim that post-Apprendi, the question of intellectual disability must be decided by a jury rather than a judge. Am. Pers. Restraint Pet. at 18-22. This is a complex constitutional issue. Petitioner cites only Apprendi and Blakely v. Washington, 542 U.S. 296, 304-06, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), and, according to the majority, makes little effort to address the key issue: whether intellectual disability is the functional equivalent of an element for Fourteenth Amendment, U.S. CONST. amend. XIV, purposes or some other type of mitigating factor relevant only to Eighth Amendment concerns. Majority at 12 (concluding that Davis is attempting to merge Fourteenth Amendment holdings of Apprendi and Blakely with Eighth Amendment holding of Atkins, and that the due process line of cases does not necessarily apply to that Eighth Amendment case). And, as the majority notes, "The State has elected not to brief this issue, depriving us of valuable argument on which to make our judgment." Id. at 13. I would not rush to judgment without appropriate briefing on both sides. To be sure, there are post-Atkins and post-Apprendi cases that hold that a state trial court judge, rather than a jury, can decide whether a defendant is categorically excluded 11 Apprendi v. New Jersey, 530 U.S. 466, 485-86, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). 15 In re Pers. Restraint of Davis, No. 89590-2 (Gordon McCloud, J., concurring) from eligibility for the death penalty due to intellectual disability. E.g., State v. Grell, 212 Ariz. 516, 525-27, 135 P.3d 696 (2006). And Apprendi itself did expressly exclude death penalty cases from its holding. 530 U.S. at 496-97. But there are now post-Atkins and post-Apprendi cases-not cited in this current petition-that hold the Fourteenth Amendment Apprendi line of cases do apply to death penalty decisions. Specifically, the petition fails to cite Hurst v. Florida,_ U.S._, 136 S. Ct. 616, 193 L. Ed. 2d 504 (2016), and Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002), on which Hurst was based. In Ring, decided one year after Apprendi, the Supreme Court held that "the required finding [of an aggravated circumstance] expose[ d] [Ring] to a greater punishment than that authorized by the jury's guilty verdict," and hence had to be decided by the jury. 536 U.S. at 604. Hurst holds that Florida's capital sentencing scheme is unconstitutional, under the Fourteenth and Sixth Amendments, because it gives the jury only an advisory recommendation on the existence of mitigating and aggravating factors and the appropriate weight to give each-but gives the judge the final decision. U.S. CONST. amend. VI. The Hurst Court explained of Ring's holding that "[h]ad Ring's judge not engaged in any factfinding, Ring would have received a life sentence .... Ring's death sentence therefore violated his right to have a jury find the facts behind his punishment." 13 6 S. Ct. at 621. 16 In re Pers. Restraint a/Davis, No. 89590-2 (Gordon McCloud, J., concurring) The Hurst Court then explained the expansive reach of Apprendi' s due process clause holding as encompassing far more than traditional elements, and as including prerequisites to the imposition of a sentence of death: In Apprendi . . . , this Court held that any fact that "expose[ s] the defendant to a greater punishment than that authorized by the jury's guilty verdict" is an "element" that must be submitted to a jury. In the years since Apprendi, we have applied its rule to instances involving plea bargains, Blakely ... , sentencing guidelines, United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005), criminal fines, Southern Union Co. v. United States, 567 U.S. [343], 132 S. Ct. 2344, 183 L. Ed. 2d 318 (2012), mandatory minimums, Alleyne [v. United States], 570 U.S. [_]at_, 133 S. Ct. [2151,] ... 2166, [186 L. Ed. 2d 314 (2013)] and, inRing ... capital punishment. 136 S. Ct. at 621. Following Hurst, the Florida Supreme Court has overturned death sentences in cases decided under its sentencing scheme that allowed judges, not juries, to find and weigh aggravating factors as a prerequisite to imposing a sentence of death. For example, in Mosley v. State, 209 So. 3d 1248 (Fla. 2016), the Florida Supreme Court held: In the words of Justice Scalia, Ring brought about "new wisdom": The right to trial by jury guaranteed by the Sixth Amendment would be senselessly diminished if it encompassed the factfinding necessary to increase a defendant's sentence by two years, but not the factfinding necessary to put him to death. 17 In re Pers. Restraint ofDavis, No. 89590-2 (Gordon McCloud, J., concurring) Id. at 1279 (citing and quoting Ring, 536 U.S. at 609). This analysis-particularly the Hurst Court's observation that "[h]ad Ring's judge not engaged in any factfinding, Ring would have received a life sentence .... Ring's death sentence therefore violated his right to have a jury find the facts behind his punishment"-certainly goes a long way to addressing the majority's holding about the separation between the Court's Fourteenth Amendment cases and its Eighth Amendment cases. 136 S. Ct. at 621. I certainly cannot fault the majority for overlooking cases and arguments that the petitioner did not present. But I think that under RAP 16.25, we have the obligation to explore whether this aspect of the Apprendi claim should have been further researched, investigated, and briefed, and, if so, whether counsel's performance in this particular collateral challenge fell below the familiarity-with- PRPs and "learned in the law of capital punishment" standards. RAP 16 .25. CONCLUSION This court has a duty to decide Davis's pro se motion for substitution of counsel and a duty to ensure compliance with RAP 16.25 's standards. I would refer this case to the trial court, pursuant to RAP 16.11-.13, to answer the factual questions about counsel's prior experience with PRPs in general, prior experience with PRPs in death penalty cases, and familiarity with the Rice case. In re Pers. Restraint of 18 In re Pers. Restraint ofDavis, No. 89590-2 (Gordon McCloud, J., concurring) Rice, 118 Wn.2d 876, 885-87, 828 P.2d 1086 (1992). Our court would then be in a position to answer the remaining legal questions: (1) Does appointed counsel meet RAP 16.25's familiarity with PRPs and "learned in the law of capital punishment" standards? (2) If not, shall we enforce those standards that we ourselves adopted? And (3) should Davis's motion for appointment of new counsel be granted? 19 In re Pers. Restraint ofDavis, No. 89590-2 (Gordon McCloud, J., concurring) 20 In re Pers. Restraint of Davis (Cecil E.) No. 89590-2 MADSEN, J. (dissenting)-The majority holds that personal restraint petitioner Cecil Emile Davis was not entitled to have a jury determine whether he was intellectually disabled, rejecting Davis's argument thatApprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L.Ed.2d 435 (2000), requires a jury to make this fact determination that exposes Davis to the ultimate punishment-the death penalty. See majority at 11-15. I disagree. In my view, the United States Supreme Court's recent decision in Hurst v. Florida,_ U.S._, 136 S. Ct. 616, 193 L. Ed. 2d 504 (2016), effectively extends Apprendi to the intellectual disability inquiry in this death penalty context and in the present case requires reversal of Davis's death sentence. 1 I begin with the requirements of RCW 10.95.030, under which life imprisonment without parole is the presumptive sentence for aggravated first degree murder. RCW 10.95.030(1) provides in relevant part that "[e]xcept as provided in subsections (2) and (3) of this section, any person convicted of the crime of aggravated first degree murder shall be sentenced to life imprisonment without possibility of release or parole." 2 (Emphasis added.) Subsection (2) applies here and provides as follows: 1 The Supreme Court issued the Hurst decision after the parties had filed their briefs in this case. 2 Subsection (3) concerns "an offense committed prior to the [defendant's] sixteenth birthday" and is not relevant here. RCW 10.95.030(3). No. 89590-2 Madsen, J., dissenting If, pursuant to a special sentencing proceeding held under RCW 10.95.050, the trier of fact finds that there are not sufficient mitigating circumstances to merit leniency, the sentence shall be death. In no case, however, shall a person be sentenced to death if the person had an intellectual disability at the time the crime was committed, under the definition of intellectual disability set forth in (a) of this subsection. A diagnosis of intellectual disability shall be documented by a licensed psychiatrist or licensed psychologist designated by the court, who is an expert in the diagnosis and evaluation of intellectual disabilities. The defense must establish an intellectual disability by a preponderance of the evidence and the court must make a finding as to the existence of an intellectual disability. RCW 10.95.030(2) (emphasis added). 3 Under this statute, the sentencing judge must make a factual finding crucial to (and in fact determinative of) the threshold availability of the death penalty as to Davis, that is, whether he has an intellectual disability rendering him ineligible for the death penalty. Id. Here, the trial court made the statutorily required finding. The question, however, is whether such determination by the trial court in this context violates the Sixth Amendment. U.S. CONST. amend. VI. I now turn to Hurst, which answers that question. 3 The statute's subsection (2) also provides the following definitions: (a) "Intellectual disability" means the individual has: (i) Significantly subaverage general intellectual functioning; (ii) existing concurrently with deficits in adaptive behavior; and (iii) both significantly subaverage general intellectual functioning and deficits in adaptive behavior were manifested during the developmental period. (b) "General intellectual functioning" means the results obtained by assessment with one or more of the individually administered general intelligence tests developed for the purpose of assessing intellectual functioning. ( c) "Significantly subaverage general intellectual functioning" means intelligence quotient seventy or below. (d) "Adaptive behavior" means the effectiveness or degree with which individuals meet the standards of personal independence and social responsibility expected for his or her age. ( e) "Developmental period" means the period of time between conception and the eighteenth birthday. RCW 10.95.030(2). 2 No. 89590-2 Madsen, J., dissenting In Hurst, the Supreme Court clarified the reach of Apprendi's requirements as to the Sixth Amendment in the context of death penalty cases. The Hurst Court's analysis acknowledged the broad application of Apprendi in subsequent cases, explaining as follows: The Sixth Amendment provides: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury .... " This right, in conjunction with the Due Process Clause, requires that each element of a crime be proved to a jury beyond a reasonable doubt. Alleyne v. United States, 570 U.S._,_, 133 S.Ct. 2151, 2156, 186 L.Ed.2d 314 (2013). InApprendi v. New Jersey, 530 U.S. 466, 494, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), this Court held that any fact that "expose[ s] the defendant to a greater punishment than that authorized by the jury's guilty verdict" is an "element" that must be submitted to ajury. In the years since Apprendi, we have applied its rule to instances involving plea bargains, Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), sentencing guidelines, United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), criminal fines, Southern Union Co. v. United States, 567 U.S. [343], 132 S.Ct. 2344, 183 L.Ed.2d 318(2012), mandatory minimums, Alleyne, 570 U.S., at_, 133 S.Ct., at 2166 and, inRing [v. Arizona], 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 [(2002)], capital punishment. Hurst, 136 S. Ct. at 621. The Hurst Court then explained that "[i]n Ring, we concluded that Arizona's capital sentencing scheme violated Apprendi' s rule because the State allowed a judge to find the facts necessary to sentence a defendant to death." Id. Hurst observed that in Ring, '""the required finding""' in question that was made by the trial court '""exposed Ring to a greater punishment than that authorized by the jury's guilty verdict.""' Hurst, 136 S. Ct. at 621 (quoting Ring, 536 U.S. at 604 (quotingApprendi, 530 U.S. at 494)). 3 No. 89590-2 Madsen, J., dissenting The Hurst Court noted with approval the State of Florida's concession "that Ring required a jury to find every fact necessary to render Hurst eligible for the death penalty." Id. at 622 (emphasis added). The Hurst Court observed that "the Florida sentencing statute does not make a defendant eligible for death until 'findings by the court that such person shall be punished by death."' Id. (quoting FLA. STAT.§ 775.082(1). The Hurst Court concluded, "As with Timothy Ring, the maximum punishment Timothy Hurst could have received without any judge-made findings was life in prison without parole. As with Ring, a judge increased Hurst's authorized punishment based on her own factfinding. In light of Ring, we hold that Hurst's sentence violates the Sixth Amendment." Id. Here, the threshold availability of the death penalty turns on an evaluation of the evidence presented by the defendant at the special sentencing proceeding concerning intellectual disability and a finding thereon by the trial court under RCW 10.95.030(2). Ring, as applied in Hurst, requires that such factual determination be made by the jury and not the trial judge. Accordingly, in my view, that portion ofRCW 10.95.030(2) requiring "the court" to "make a finding as to the existence of an intellectual disability," a finding that is determinative of Davis's threshold eligibility for the death penalty, violates the Sixth Amendment as applied in Hurst, 136 S. Ct. at 622. I disagree with the majority's characterization of the Hurst decision as limited and inapplicable here. See majority at 14 n.6. The majority cites to the petition for review and the Supreme Court's order granting review in Hurst but overstates the parameters 4 No. 89590-2 Madsen, J., dissenting placed on the scope of review. The Supreme Court's order granting review merely rearticulated the question before it and did not exclude anything relevant here. 4 The majority disregards Hurst. The majority's discussion turns on how the fact inquiry affecting the sentencing determination is to be labeled (e.g., as an element of a crime, aggravating factor, or sentence enhancement), and stresses maintaining a division 4 The petition for review in Hurst articulated the issues as follows: Issue I: Whether the Florida Supreme Court correctly held that the jury in a death penalty case does not have a constitutional obligation to render a verdict in the penalty phase [on] whether the defendant is mentally retarded or not when evidence has been presented to support such a conclusion. Issue II: Whether the Supreme Court of Florida has correctly concluded that this court['s] decision in Ring v. Arizona, 536 U.S. 584 (2002) (1) has no applicability to Florida's death sentencing scheme generally, (2) that specifically it does not require the jury's recommendation of death be unanimous, (3) that the jury's findings of aggravating factors need not be unanimous, (4) that the jury has no role in determining the factual issue of the defendant's mental retardation, and (5) that the lack of unanimity does not offend our evolving standards of decency as required by the Eighth Amendment. Pet. for Writ of Cert. to Supreme Ct. of Fla. at ii, Hurst v. Florida, No. 14-7505 (filed Dec. 3, 2014) (emphasis added) (capitalization omitted). The Supreme Court order granting review stated: Petition for writ of certiorari to the Supreme Court of Florida granted limited to the following question: Whether Florida's death sentencing scheme violates the Sixth Amendment or the Eighth Amendment in light of this Court's decision in Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002). Hurst v. Florida, 135 S. Ct. 1531, 191 L. Ed. 2d 558 (2015). As can be seen, the order granting review subsumes questions regarding the jury's role and the court's role in determining factual issues regarding defendant's mental retardation or any other question bearing on imposition of the death penalty. Accordingly, the majority does not convince that Hurst is inapplicable here based on the language of the order granting review. Further, despite mentioning the Eighth Amendment in the order granting review, the Hurst opinion states, "We granted certiorari to resolve whether Florida's capital sentencing scheme violates the Sixth Amendment in light of Ring." Hurst, 136 S. Ct. at 621. The Hurst majority does not mention the Eighth Amendment, but the Hurst concurrence states, "I concur in the judgment here based on my view that 'the Eighth Amendment requires that a jury, not a judge, make the decision to sentence a defendant to death."' Id. at 624 (Breyer, J., concurring) (quoting Ring, 536 U.S. at 614 (Breyer, J., concurring)). In my view, the Supreme Court's dispositive application of the Sixth Amendment and Ring in Hurst cannot be ignored in the present case. 5 No. 89590-2 Madsen, J., dissenting between Eighth Amendment and Sixth Amendment jurisprudence. U.S. CONST. amend. VIII. But Hurst reasserts the core principle of Apprendi and Ring. The salient question is this: Does the inquiry at issue concern a fact that impacts the level of punishment imposed on the defendant? If so, a jury must decide it. As Justice Scalia bluntly stated in Ring, "[T]he fundamental meaning of the jury-trial guarantee of the Sixth Amendment is that all facts essential to imposition of the level ofpunishment that the defendant receives--whether the statute calls them elements of the offense, sentencing factors, or Mary Jane-must be found by the jury." 536 U.S. at 610 (Scalia, J., concurring) (emphasis added). Applying Ring, the Hurst Court reiterated, "The Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death." 13 6 S. Ct. at 619 (emphasis added). As discussed above, the Supreme Court in Hurst held that the comparable judge-made determination in the Hurst case violated the Sixth Amendment under Ring. In my view, a similar conclusion is unavoidable here. The majority focuses on the Eighth Amendment, citing to numerous cases 5 addressing Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002), 6 5 See majority at 13-15 (citing cases including Schriro v. Smith, 546 U.S. 6, 126 S. Ct. 7, 163 L. Ed. 2d 6 (2005); State v. Agee, 358 Or. 325, 364 P.3d 971 (2015), adhered to as amended on other grounds, 358 Or. 749, 370 P.3d 476 (2016); Hurst v. State, 147 So. 3d 435 (Fla. 2014), rev'd on other grounds,_ U.S._, 136 S. Ct. 616, 193 L. Ed. 2d 504 (2016); Pruitt v. State, 834 N.E.2d 90 (Ind. 2005), rev'd on other grounds, 788 F.3d 248 (7th Cir. 2015); State v. Were, 118 Ohio St. 3d 448, 890 N.E.2d 263 (2008); State v. Grell, 212 Ariz. 516, 135 P.3d 696 (2006); State v. Laney, 367 S.C. 639, 627 S.E.2d 726 (2006); Walker v. True, 399 F.3d 315 (4th Cir. 2005); Bowling v. Commonwealth, 163 S.W.3d 361 (Ky. 2005); Winston v. Commonwealth, 268 Va. 564, 604 S.E.2d 21 (2004); State v. Flores, 2004-NMSC-021, 135 N.M. 759, 93 P.3d 1264; Howell v. State, 151 S.W.3d 450 (Tenn. 2004); Russell v. State, 849 So. 2d 95 (Miss. 2003); In re Johnson, 334 F.3d 403 (5th Cir. 2003); Head v. Hill, 277 Ga. 255, 587 S.E.2d 613 (2003); State v. Williams, 831 So. 2d 835 (La. 2002)). 6 No. 89590-2 Madsen, J., dissenting as supporting the notion that the Atkins Eighth Amendment exemption, which bars execution of mentally retarded criminals, acts as a sentence mitigator instead of a sentence enhancer. But all of the cases cited by the majority predate Hurst, and none foreclose the availability of the Supreme Court's most recent precedent addressing Sixth Amendment requirements in this death penalty context. Hurst itself acknowledges the dynamic and continuing evolution of Sixth Amendment jurisprudence, stating: [I]n the Apprendi context, we have found that "stare decisis does not compel adherence to a decision whose 'underpinnings' have been 'eroded' by subsequent developments of constitutional law." Alleyne, 570 U.S., at- - , 133 S.Ct., at 2155 (SOTOMAYOR, J., concurring); see also United States v. Gaudin, 515 U.S. 506, 519-520, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995) (overruling Sinclair v. United States, 279 U.S. 263, 49 S.Ct. 268, 73 L.Ed. 692 (1929)); Ring, 536 U.S., at 609, 122 S.Ct. 2428 (overruling Walton [v. Arizona], 497 U.S., at 639, 110 S.Ct. 3047[, 111 L. Ed. 2d 511]); Alleyne, 570 U.S., at--, 133 S.Ct., at 2162-2163 (overruling Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002)). Hurst, 136 S. Ct. at 623-24. The Hurst Court added to this development by expressly overruling Spaziano v. Florida, 468 U.S. 447, 104 S. Ct. 3154, 82 L. Ed. 2d 340 (1984) and Hildwin v. Florida, 490 U.S. 638, 109 S. Ct. 2055, 104 L. Ed. 2d 728 (1989) "to the extent they allow a sentencing judge to find an aggravating circumstance, independent of a jury's factfinding, that is necessary for imposition of the death penalty." 136 S. Ct. at 624. In my view, the Supreme Court's recent dispositive application of the Sixth Amendment in Hurst should be applied in the present case. 6 Atkins held that the Eighth Amendment's prohibition against "' [e]xcessive' sanctions" and "'cruel and unusual punishment'" barred execution of mentally retarded criminals. 536 U.S. at 311, 321 (quoting U.S. CONST. amend. VIII). 7 No. 89590-2 Madsen, J., dissenting Also, the majority acknowledges that the evidence presented at trial includes expert testimony noting that Davis had an "I.Q. score of 68." See majority at 8 n.4 (quoting Report of Proceeding (RP) (May 8, 2007) at 3100). That evidence alone creates a fact question as to whether Davis suffered from an intellectual disability. 7 Again, I do not agree with the majority that such evidence can be disregarded. See id. Here, the trial court summarized the experts' testimony and expressly weighed the evidence and made credibility determinations. 8 The court observed that Dr. Richard Kolbell gave Davis "an IQ test that resulted in a full scale IQ of 68," Clerk's Papers (CP) at 1261, and that Dr. Kolbell testified that Davis "overall showed 'borderline intellectual ability."' CP at 1262. The court observed that Dr. Zakee Matthews testified that Davis "has a 'major mental illness"' and that "an IQ of 68 as found by Dr. Kolbell would put [Davis] in the mild mental retardation range." CP at 1262-63. The trial court also acknowledged that "the 'impaired' range ... is the current term used to describe persons who are mentally retarded," CP at 1262, and noted that the State's expert, Dr. Kenneth Muscatel, testified that Davis's "cognitive ability places him in the mild to moderately impaired range." CP at 1264. The court also recognized that all of these mental health witnesses concluded that Davis suffered from a '"cognitive disorder"' and that his "abuse of drugs and alcohol likely exacerbated this condition." Id. Nevertheless, the trial court 7 As defined in RCW 10.95.030(2), "intellectual disability" includes in part a "[s]ignificantly subaverage general intellectual functioning," which is further defined to mean an "intelligence quotient [score of] seventy or below." RCW 10.95.030(2)(a), (c). 8 The court expressly found that "Dr. Muscatel was the most credible witness" and that "his opinions carried the most weight," while "Dr. Matthews was the least credible." CP at 1264. Again, under Hurst, such fact finder determinations should have been undertaken and accomplished by the jury rather than the trial court. 8 No. 89590-2 Madsen, J., dissenting observed that Davis had not been "formally" diagnosed as mentally retarded, CP at 1260, 1265, and noted that the testifying experts declined to so diagnose Davis "to a reasonable psychological [or psychiatric] certainty" because more information would be needed to make such a formal diagnosis. CP at 1261, 1263. 9 The trial court's focus on the absence of a formal diagnosis of mental retardation/intellectual disability, premised on a reasonable psychological certainty, in my view is misplaced. As noted, RCW 10.95.030(2) expressly provides that the defendant need only present evidence to show "an intellectual disability by a preponderance of the evidence." (Emphasis added.) Based on the evidence noted above, a reasonable jury weighing the evidence could find that this burden had been met. But more to the point, as discussed above, Hurst requires that such evaluation must be performed by a jury, not the trial court. In sum, the requirement in RCW 10.95.030(2) that "the [sentencing] court must make a finding as to the existence of an intellectual disability," a finding that is crucial to Davis's eligibility for the death penalty, violates the Sixth Amendment under Hurst. In my view, Hurst requires that we reverse Davis's sentence of death and remand for a new sentencing proceeding. Accordingly, I dissent. 9 Other evidence in the record indicates that as a child, Davis was in special education classes but could not pass his classes and ultimately dropped out of school in the 10th grade. RP (May 9, 2007) at 3243-44 (testimony of Dr. Matthews). Dr. Kolbell testified that based on comparison to earlier testing Davis's mental ability was declining over the years. RP (May 8, 2007) at 3117. Davis showed "fairly significant impairment in his daily functioning," id. at 3120 (testimony of Dr. Kolbell), and had trouble functioning throughout his life. RP (May 9, 2007) at 3217-19 (testimony of Dr. Barbara Jessen MD). 9 No. 89590-2 Madsen, J., dissenting 10