In re Pers. Restraint of Fowler

FILE THIS OPINION WAS FILED
FOR RECORD AT 8 A.M. ON
FEBRUARY 4 2021
IN CLERK’S OFFICE
SUPREME COURT, STATE OF WASHINGTON
FEBRUARY 4, 2021
SUSAN L. CARLSON
SUPREME COURT CLERK

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

In the Matter of the Personal Restraint of ) No. 97456-0
)
VINCENT L. FOWLER, ) En Banc
)
Petitioner. ) Filed: February 4, 2021
__________________________________)

GONZÁLEZ, C.J.— The writ of habeas corpus is enshrined in our state and

federal constitutions. WASH. CONST. art. I, § 13; U.S. CONST. art. I, § 9. Our

legislature has the power to expand habeas corpus and frame it in ways that do not

impinge on the writ’s fundamental nature. See In re Pers. Restraint of Runyan,

121 Wn.2d 432, 444-45, 853 P.2d 424 (1993). Reasonable time limits, with

appropriate exceptions, are constitutionally permissible. Id. at 444. In our state,

those restrained under facially valid judgments have at least a year to bring a

habeas-style challenge. RCW 10.73.090, .100. A year after that judgment is final,

the statutory grounds for relief that may be raised are limited. RCW 10.73.090,

.100. In keeping with the importance of the writ, the one-year time limit is subject

to equitable tolling in extraordinary circumstances. See In re Pers. Restraint of

Haghighi, 178 Wn.2d 435, 447-48, 309 P.3d 459 (2013); State v. Littlefair, 112
In re Pers. Restraint of Fowler, No. 97456-0

Wn. App. 749, 759, 51 P.3d 116 (2002); see also Pace v. DiGuglielmo, 544 U.S.

408, 418, 125 S. Ct. 1807, 161 L. Ed. 2d 669 (2005) (citing Irwin v. Dep’t of

Veterans Affairs, 498 U.S. 89, 96, 111 S. Ct. 453, 112 L. Ed. 2d 435 (1990)).

Long before his judgment and sentence was final, Vincent Fowler hired and

paid an attorney, John Crowley, to prepare and file his personal restraint petition

(PRP). But after repeatedly and falsely assuring his client he was working on the

PRP, Crowley stopped responding to calls. As the one-year time bar approached

and it became apparent Crowley had abandoned him, Fowler hired a new attorney.

Fowler learned Crowley had resigned his law license rather than face professional

discipline for failing to diligently represent other clients, among other things.

Before the time bar passed, Fowler’s present counsel filed a “placeholder” PRP

explaining he needed additional time to get Fowler’s legal file and investigate

grounds for relief. After the time bar had passed, counsel filed a “supplemental”

PRP arguing Fowler’s trial attorney was ineffective. The Court of Appeals

dismissed the PRP as untimely.

This court has inherent authority to grant a timely filed motion to extend the

time limit to file a habeas-style challenge to a conviction. See In re Pers. Restraint

of Davis, 188 Wn.2d 356, 362 n.2, 395 P.3d 998 (2017). Further, courts have the

authority, under appropriate circumstances, to equitably toll the statutory time limit

on personal restraint petitions and habeas petitions. Haghighi, 178 Wn.2d at 447;

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Littlefair, 112 Wn. App. at 759; Pace, 544 U.S. at 418. We conclude that equitable

tolling is warranted here. The misconduct of Fowler’s attorney was egregious and

Fowler exercised diligence. We reverse the Court of Appeals and remand for

consideration on the merits.

FACTS

Fowler was convicted of two counts of first-degree child molestation and

one count of first-degree rape of a child. The Court of Appeals affirmed. State v.

Fowler, No. 33227-6-III, slip op. at 1 (Wash. Ct. App. Aug. 18, 2015)

(unpublished), http://www.courts.wa.gov/opinions/pdf/332276.unp.pdf. We

granted review and remanded for correction of an unrelated error. The superior

court entered an amended judgment and sentence on October 19, 2016. Before the

judgment was final, Fowler’s brother Darryl Fowler hired an attorney to prepare

and file a PRP for Fowler. Darryl 1 hired John Crowley on September 2, 2015,

more than two years before the PRP’s due date of October 20, 2017. Darryl paid

Crowley a significant retainer in advance.

While incarcerated at Stafford Creek Corrections Center, Fowler was able to

speak with Crowley “on only a couple of occasions, and he called me ‘Victor.’”

Suppl. Br. of Pet’r, Ex. D, ¶ 16 (Decl. of Vincent Fowler) (Wash. Ct. App. No.

51029-4-II (2018)). Crowley falsely assured his client that he was working on his

1
We use Darryl Fowler’s first name for clarity. No disrespect is intended.
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PRP and “had all sorts of plan[s] of what he was going to do.” Id. Crowley

became more difficult to reach, and in June 2017, all of Fowler’s calls started

going to voice mail. Fowler’s brother and other family members attempted to

contact Crowley “numerous times, but to no avail.” Suppl. Br. of Pet’r, Ex. F, ¶ 3

(Decl. of Darryl Fowler) (Wash. Ct. App. No. 51029-4-II (2018)). In August of

2017, just two months before the PRP was due, Fowler discovered that Crowley’s

phone line was disconnected. During this time, it did not appear that Crowley had

produced anything for Fowler’s case.

Meanwhile, and unknown to Fowler, Crowley was under investigation for

professional misconduct in other cases where he had taken a fee and done little or

no work. On July 18, 2017, Crowley resigned from the practice of law rather than

face professional discipline.

As the one-year time bar approached and it became apparent Crowley had

abandoned his brother, Darryl hired a new attorney. Darryl met with John Henry

Browne on October 6, 2017 and almost immediately hired him. Browne informed

Darryl that Crowley had “retired . . . in lieu of discipline and disbarment.” Id. at ¶

4. This was the first time Darryl or Fowler had heard this. Around the same time,

Fowler also heard about Crowley’s incompetence from several other inmates. The

record suggests Crowley has not returned the unearned fee. Crowley also failed to

share Fowler’s case file with Browne.

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Before the deadline passed, Browne filed something he characterized as a

“placeholder” petition for review in the Court of Appeals on October 18, 2017.2

This petition stated that Fowler’s counsel needed additional time to get Fowler’s

legal file and investigate grounds for relief. The Court of Appeals treated Fowler’s

petition as a “motion to file a supplemental petition” and directed Fowler to

address why the one-year time bar under RCW 10.73.090 did not warrant

dismissal. Comm’r’s Letter Ruling, No. 51029-4-II (Wash. Ct. App. Nov. 21,

2017).

In March 2018, after the time bar had run, Fowler’s counsel filed a

supplemental petition arguing that the one-year time bar should be equitably tolled

because Fowler’s prior counsel was ineffective and asserting that the court may

waive the time limit under RAP 18.8. 3 The Court of Appeals held that equitable

tolling applies only when a petitioner asserts bad faith, deception, or false

assurances by the opposing party, and that RAP 18.8 does not give the court

authority to waive the statute of limitations. In re Pers. Restraint of Fowler, 9 Wn.

2
We note that the State argues the one-year clock began to run on May 2, 2016, when the Court
of Appeals opinion mandated, and not October 19, 2016, when the superior court entered its
amended judgment and sentence. Suppl. Br. of Resp’t at 4. The Court of Appeals correctly held
that the time bar ran in October, not May. We decline to revisit this holding.
3
RAP 18.8 allows an appellate court to “waive or alter the provisions of any of these rules and
enlarge or shorten the time within which an act must be done in a particular case in order to serve
the ends of justice,” subject to certain restrictions.
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App. 2d 158, 164-65, 167, 442 P.3d 647 (2019). We granted review. In re Pers.

Restraint of Fowler, 195 Wn.2d 1007 (2020).

ANALYSIS

I. Statutory Limitations and Inherent Power

This court has inherent power to waive the statutory limitations period for a

habeas challenge. Davis, 188 Wn.2d at 362 n.2. This flows from our plenary

judicial power, which includes original jurisdiction over writs of habeas. Id.;

WASH. CONST. art. IV, § 4. Our legislature has the power to expand and frame

habeas style challenges, so long as it does not impinge on the writ’s fundamental

nature. See Runyan, 121 Wn.2d at 443-44. Nothing in chapter 10.73 RCW

deprives this court of the authority to extend the time bar in response to a timely

filed motion based on adequate grounds. See Davis, 188 Wn.2d at 362 n.2.

We agree with the Court of Appeals that RAP 18.8 does not grant courts the

authority to waive a statute of limitations. RAP 18.8 states that the “appellate

court may, on its own initiative or on motion of a party, waive or alter the

provisions of any of these rules and enlarge or shorten the time within which an act

must be done.” RAP 18.8(a). RAP 18.8 applies to court rules—it does not grant

the court the ability to “waive or alter statutes” like the one-year time limit in

RCW 10.73.090. In re Pers. Restraint of Benn, 134 Wn.2d 868, 938-39, 952 P.2d

116 (1998) (emphasis added). But this court’s inherent power is not related to
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RAP 18.8. See Davis, 188 Wn.2d at 362 n.2 (exercising inherent power with no

reference to RAP 18.8). The inherent power of this court does not depend on the

rules of appellate procedure. WASH. CONST. art. IV, §§ 4, 6.

The Court of Appeals concluded that “[t]he statutory time limit is a

mandatory rule that acts as a bar to appellate court consideration of collateral

attacks, unless the petitioner shows that a statutory exception applies.” Fowler, 9

Wn. App. 2d at 167 (citing State v. Robinson, 104 Wn. App. 657, 662, 17 P.3d 653

(2001)). This is incorrect. This court may exercise its inherent power to consider a

collateral attack even if it would normally be barred by the statutory time limit.

II. Equitable Tolling

It is well established that the statutory one-year time bar for filing a PRP is

not jurisdictional and may be subject to equitable tolling. Haghighi, 178 Wn.2d at

447. Equitable tolling is a remedy, used sparingly, that allows an action to proceed

“when justice requires it, even though a statutory time period has elapsed.” In re

Pers. Restraint of Bonds, 165 Wn.2d 135, 141, 196 P.3d 672 (2008) (plurality

opinion). We have previously held that equitable tolling in collateral restraint

actions is warranted when a petitioner shows they have diligently pursued their

rights and the petition was untimely because of bad faith, deception, or false

assurances. See Haghighi, 178 Wn.2d at 447-48.

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We have not considered whether the petitioner’s own attorney’s misconduct

can also give rise to cause for equitable tolling. But federal courts, applying

equitable tolling to the statutory time limit for federal habeas petitions, have

concluded it can. Holland v. Florida, 560 U.S. 631, 653, 130 S. Ct. 2549, 177 L.

Ed. 2d 130 (2010); Gibbs v. Legrand, 767 F.3d 879, 882 (9th Cir. 2014). We adopt

this federal standard to supplement our own. A petitioner seeking equitable tolling

bears the burden of showing (1) that they diligently pursued their rights and (2)

that an extraordinary circumstance prevented a timely filing. Lawrence v. Florida,

549 U.S. 327, 336, 127 S. Ct. 1079, 166 L. Ed. 2d 924 (2007) (citing Pace, 544

U.S. at 418). Extraordinary circumstances include, but are not limited to, bad faith,

deception, or false assurances by another such as, in some cases, a petitioner’s own

counsel. See id.; see also Haghighi, 178 Wn.2d at 447-48. Under this standard,

ordinary attorney negligence, such as miscalculating the filing deadline, is

generally not an extraordinary circumstance. Holland, 560 U.S. at 651-52. But

sufficiently egregious attorney misconduct—such as an attorney’s failure to file

their client’s collateral challenge despite being timely hired to do so—creates an

extraordinary circumstance that justifies equitable tolling. See Baldayaque v.

United States, 338 F.3d 145, 152 (2d Cir. 2003) (equitable tolling appropriate

when counsel failed to file a habeas petition despite being hired to do so, failed to

conduct any legal research, and failed to communicate with his client); John Doe v.

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Busby, 661 F.3d 1001, 1011-12 (9th Cir. 2011) (equitable tolling appropriate when

counsel failed to timely file a habeas petition despite having promised to do so,

even though the petitioner hired him over a year before the deadline, paid him

$20,000, gave him the files, and repeatedly asked him about the case); Spitsyn v.

Moore, 345 F.3d 796, 798, 800-02 (9th Cir. 2003) (equitable tolling appropriate

when counsel failed to file a habeas petition even though Spitsyn hired him almost

a year before the deadline and contacted him three times and filed two complaints

with the bar). 4

The State argues that under Haghighi, equitable tolling is warranted only

where the impediment to timely filing involves bad faith, deception, or false

assurances by the opposing party—here, the State. In Haghighi, we declined to

apply equitable tolling where a pro se petitioner filed a timely PRP and was

appointed counsel shortly before the time bar, and after the time bar, petitioner’s

counsel sought to add an additional constitutional claim. 178 Wn.2d at 440-41,

4
We recognize that our precedent regarding equitable tolling has not been entirely clear. In
Bonds, a plurality favored a narrow test requiring “bad faith, deception, or false assurances” to be
demonstrated by the petitioner. 165 Wn.2d at 141 (Johnson, J., lead opinion). But between the
dissent and the concurrence, five justices would have allowed equitable tolling to apply in
broader contexts. Id. at 144 (Alexander, C.J., concurring), 147 (Sanders, J., dissenting). As we
noted in In re Pers. Restraint of Carter, “equitable tolling . . . may be available in contexts
broader than those recognized by the Bonds plurality.” 172 Wn.2d 917, 929, 263 P.3d 1241
(2011). Most recently, our decision in Haghighi was silent as to whether the “bad faith,
deception, or false assurances” must be caused by the opposing party, the State, the defendant, or
simply “another.” See 178 Wn.2d at 447 (recognizing without clarifying that “[a]lthough this
court has not previously settled what standard should be applied in this context, traditionally we
have allowed equitable tolling when justice requires its application and when the predicates of
bad faith, deception, or false assurances are met,” as well as petitioner diligence).
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449. Because Haghighi knew all the facts relevant to that untimely claim when he

filed his initial PRP and was not prevented from raising it then, equitable tolling

was not warranted. Id. at 449. We were not asked to decide, and therefore did not

hold, that equitable tolling was limited to malfeasance by the opposing party. We

see no reason for such a limitation. Such a limitation would undermine the

purpose of equitable tolling—to ensure fundamental fairness when extraordinary

circumstances have stood in a petitioner’s way. Accordingly, the Court of Appeals

erred when it stated that “Washington courts require bad faith, deception, or false

assurances caused by the opposing party or the court” in order to justify equitable

tolling. Fowler, 9 Wn. App. 2d at 166 (emphasis added).

Crowley’s misconduct is the type of extraordinary circumstance that justifies

equitable tolling. See Baldayaque, 338 F.3d at 152; Doe, 661 F.3d at 1011-12;

Spitsyn, 345 F.3d at 800-02. Even though Fowler’s family hired Crowley two

years in advance of the statutory deadline, Crowley completely failed to prepare

and file a personal restraint petition. “[F]undamental canons of professional

responsibility . . . require attorneys to perform reasonably competent legal work, to

communicate with their clients, to implement clients’ reasonable requests, to keep

their clients informed of key developments in their cases, and never to abandon a

client.” Holland, 560 U.S. at 652-53 (citing Br. for Legal Ethics Professors et al.

as Amici Curiae in Supp. of Pet’r). Crowley violated these canons. He falsely

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assured Fowler he was working on the PRP, but in fact, he produced nothing and

essentially disappeared, resigning from the practice of law and disconnecting his

phone line without notifying Fowler or returning Fowler’s case file. Fowler had to

find out through another attorney, on the eve of the time bar, that Crowley was

facing discipline and resigned. And when asked by Fowler’s new attorney for his

case file, Crowley never provided it.

Fowler has shown not only egregious attorney misconduct that prevented

him from timely filing his PRP but also that he diligently pursued his rights.

Fowler, through his brother, promptly hired Crowley to prepare his PRP after the

Court of Appeals affirmed his convictions on direct appeal in 2015. The one-year

time clock for filing his PRP began to run on October 19, 2016. Fowler and his

family members reached out to Crowley repeatedly to check on the status of his

case. When Fowler was able to talk to Crowley, Crowley assured him he was

working on the case and had plans for the petition. After calls to Crowley started

going to voice mail in June 2017 and the October 2017 deadline began

approaching, Fowler’s brother hired a new lawyer before the deadline. Present

counsel promptly requested additional time to get Fowler’s legal files, do the

necessary investigation, and prepare Fowler’s PRP raising an ineffective assistance

of trial counsel claim.

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The diligence required for equitable tolling is not “exceptional” diligence,

Baldayaque, 338 F.3d at 153, or “‘maximum feasible diligence,’” Holland, 560

U.S. at 653 (internal quotation marks omitted) (quoting Starns v. Andrews, 524

F.3d 612, 618 (5th Cir. 2008)). Instead, a petitioner is required to act as diligently

as reasonably can be expected under the circumstances. See Holland, 560 U.S. at

653; Baldayaque, 338 F.3d at 153. While Fowler recognized as early as June that

he was having difficulty reaching Crowley, his delay until October to obtain new

counsel was reasonable, especially taking into account Crowley’s assurances that

he was working on the case and the fact that Fowler was in prison. See Spitsyn,

345 F.3d at 801 (rejecting an argument that a petitioner should have hired a new

attorney earlier because “it is not evident that [he] should have concluded . . . [his

attorney] was going to fail [him] completely. Non-responsiveness may be

unprofessional, but it is hardly unheard of”); Doe, 661 F.3d at 1014 (holding that a

petitioner’s reliance on his absent attorney was reasonable given that the petitioner

was “[u]ntrained in the technicalities of habeas law and incarcerated . . . [and] in

no position to . . . observe the thoroughness of the attorney’s supposedly ongoing

investigation for evidence”).

Fowler’s reasonable reliance on his attorney should not deprive him of his

sole opportunity to bring his ineffective assistance of counsel claim. Fowler is

entitled to equitable tolling of the limitations period from October 19, 2016, when

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the limitations period would otherwise have commenced, until October 9, 2017,

the date he retained new counsel. Accordingly, his PRP is timely and will be

considered on the merits.

CONCLUSION

Habeas is an important check on state power. Like nearly everything else in

our constitutional system of government, habeas-style procedures are subject to

reasonable limitations, such as time limits. Courts may equitably toll time limits in

extraordinary circumstances where the petitioner diligently pursued their rights.

Fowler was diligent and his former attorney’s extraordinary actions prevented the

timely filing of his PRP. We reverse, hold the petition is timely, and remand to the

Court of Appeals for consideration on the merits.

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____________________________

WE CONCUR:

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In the Matter of the Pers. Restraint of Fowler (Vincent L.), No. 97456-0
Whitener, J. (dissenting)

No. 97456-0

WHITENER, J. (dissenting)—This case concerns whether Vincent L.

Fowler can bring an untimely personal restraint petition (PRP) when his former

counsel, John Crowley, failed him in numerous ways. The majority holds that

RCW 10.73.090’s one-year statute of limitations has been equitably tolled.

I agree with Part I of the majority opinion, which concludes that the Court of

Appeals correctly held that RAP 18.8 does not permit courts to waive the statute of

limitations. I also agree that one’s counsel may, in fact, behave so poorly as to

permit equitable tolling of RCW 10.73.090’s one-year time bar. However, I part

ways with the majority in two areas. First, the majority adopts the federal standard

for equitable tolling without providing a persuasive reason to do so. Second,

irrespective of which standard is applied—ours or the federal standard—Fowler

did not exercise diligence in pursuit of his rights. Thus, we should not hold that the

statute of limitations has been equitably tolled and should instead affirm the Court

of Appeals. For those reasons, I respectfully dissent.

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In the Matter of the Pers. Restraint of Fowler (Vincent L.), No. 97456-0
Whitener, J. (dissenting)

I. We should not adopt the federal standard for equitable tolling in
addition to our own

“[T]raditionally we have allowed equitable tolling when justice requires its

application and when the predicates of bad faith, deception, or false assurances are

met, and where the petitioner has exercised diligence in pursuing his or her rights.”

In re Pers. Restraint of Haghighi, 178 Wn.2d 435, 447, 309 P.3d 459 (2013). The

majority departs from this tradition—and thus our precedent—by adopting the

federal standard, in addition to our standard, in which a statute of limitations is

tolled when (1) the petitioner has been diligently pursuing their rights and (2)

extraordinary circumstances prevented timely filing. Holland v. Florida, 560 U.S.

631, 649, 130 S. Ct. 2549, 177 L. Ed. 2d 130 (2010) (quoting Pace v.

DiGuglielmo, 544 U.S. 408, 418, 125 S. Ct. 1807, 161 L. Ed. 2d 669 (2005)).

Our line of equitable tolling cases has developed its own standards,

independent from the one used in the federal courts. When our court held RCW

10.73.090 can be equitably tolled, we relied on statutory interpretation, discussing

“the policies underlying the statute and the purposes underlying the statute of

limitation.” In re Personal Restraint of Bonds, 165 Wn.2d 135, 141, 196 P.3d 672

(2008) (plurality opinion). In establishing the standard for equitable tolling in the

PRP context, Bonds’ four-justice plurality applied the standard from the civil

context, where the petitioner must show “bad faith, deception, or false assurances

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In the Matter of the Pers. Restraint of Fowler (Vincent L.), No. 97456-0
Whitener, J. (dissenting)

by the defendant and the exercise of diligence by the plaintiff.” Id. The two-justice

concurrence argued that equitable tolling should apply in broader circumstances

than those outlined by the plurality. Id. at 144-45 (Alexander, C.J., concurring).

Only the three-justice dissent preferred the federal standard for equitable tolling.

See id. at 146 (Sanders, J., dissenting) (quoting Pace, 544 U.S. at 418).

In In re Personal Restraint of Carter, 172 Wn.2d 917, 263 P.3d 1241

(2011), the court confronted the options provided by Bonds. We concluded that

“[c]onsistent with the majority of the justices in Bonds, we recognize that equitable

tolling of the time bar may be available in contexts broader than those recognized

by the Bonds plurality.” Id. at 929 (emphasis added).

Haghighi followed, and though we did not acknowledge Carter’s apparent

broadening of equitable tolling, we did not hold that the State or the court must

cause the late filing through bad faith, deception, or false assurances. See

Haghighi, 178 Wn.2d at 447, 449. We also did not refute Carter’s “recogni[tion]

that equitable tolling of the time bar may be available in contexts broader than

those recognized by the Bonds plurality.” 172 Wn.2d at 929; see generally

Haghighi, 178 Wn.2d 435. We did refer to “the civil standard” of equitable tolling,

which does require bad faith, deception, or false assurances to be predicated on the

acts of the opposing party. Haghighi, 178 Wn.2d at 449; see Millay v. Cam, 135

Wn.2d 193, 206, 955 P.2d 791 (1998) (providing the civil standard). But the
3
In the Matter of the Pers. Restraint of Fowler (Vincent L.), No. 97456-0
Whitener, J. (dissenting)

absence of any rejection of Carter or the Bonds plurality left that line of precedent

intact.

The majority decides to expand our doctrine of equitable tolling by adopting

the federal standard “to supplement our own.” Majority at 8. But the majority

offers no reason for us to do so. It simply asserts that the federal standard now also

applies in our state, alongside our traditional standard.

We should instead solely use our traditional standard of equitable tolling,

articulated most recently in Haghighi. 178 Wn.2d at 447 (permitting equitable

tolling in the PRP context when “when justice requires its application and when the

predicates of bad faith, deception, or false assurances are met, and where the

petitioner has exercised diligence in pursuing his or her rights”). However, also

keeping in mind that Carter expressly left open the possibility that “equitable

tolling of the time bar may be available in contexts broader than those recognized

by the Bonds plurality,” 172 Wn.2d at 929, we should expand the reach of

equitable tolling beyond the civil standard relied on in Haghighi and the Bonds

plurality. We should thus hold that at least in the PRP context, a petitioner may

rely on the actions of their own attorney, not just that of the State and the court, to

establish the predicates of bad faith, deception, and false assurances.

I disagree with the majority’s decision to adopt the federal standard in

addition to our own for several reasons. It lacks foundation in our precedent. While
4
In the Matter of the Pers. Restraint of Fowler (Vincent L.), No. 97456-0
Whitener, J. (dissenting)

one opinion in Bonds invoked the federal standard, federal law played no role in

our decision to apply equitable tolling to RCW 10.73.090. 165 Wn.2d at 146

(Sanders, J., dissenting) (quoting DiGuglielmo, 544 U.S. at 418). None of the

opinions in Bonds, nor any of our subsequent cases, disagreed with the portion of

the Bonds plurality that drew our standard for equitable tolling from statutory

interpretation and our case law. See id. at 141 (lead opinion), 144-45 (Alexander,

C.J., concurring) (not disagreeing with plurality about the origins of equitable

tolling in this context), 145-46 (Sanders, J., concurring) (same); Carter, 172 Wn.2d

at 928 (simply citing Bonds for the proposition that equitable tolling is permitted);

Haghighi, 178 Wn.2d at 447 (same). To suddenly adopt the federal standard when

the origin of our standard for equitable tolling lies in state law strikes me as

unnecessary.

The majority implies that courts in our state have long employed the

extraordinary circumstances prong of the federal standard for equitable tolling.

Majority at 1-2 (“[T]he one-year time limit is subject to equitable tolling in

extraordinary circumstances.” (citing Haghighi, 178 Wn.2d at 447-48; State v.

Littlefair, 112 Wn. App. 749, 759, 51 P.3d 116 (2002))). But these cases do not

support the majority’s implication. Haghighi referenced “extraordinary

circumstances” only when describing another case, one that was only tenuously

related to equitable tolling. 178 Wn.2d at 446 n.3. The passage cited by the
5
In the Matter of the Pers. Restraint of Fowler (Vincent L.), No. 97456-0
Whitener, J. (dissenting)

majority, rather than supporting the use of the extraordinary circumstances prong

of the federal standard for equitable tolling, instead emphasizes how we considered

it “unwise and unnecessary to expand the doctrine [of equitable tolling] beyond the

traditional standard.” Id. at 448. And while Littlefair did indicate that a petitioner

could rely on attorney misconduct to establish the predicates of equitable tolling, it

nevertheless did so within the context of our traditional standard, not the federal

standard. 112 Wn. App. at 759-60, 762-63. Its only use of “extraordinary

circumstances” was with respect to CrR 7.8(b)—and, even then, only in the

dissent. Id. at 772 (Bridgewater, J., dissenting).

Fowler does not provide persuasive reasons to adopt the federal standard,

either. Fowler argues that “the [state and federal] standards should . . . be

analogous” because, he claims, “the state and federal statutes are analogous.”

Suppl. Br. of Pet’r at 17. But the statutes are analogous only in terms of their

generalities: for instance, both have a one-year time bar for filing collateral attacks.

Compare RCW 10.73.090, with 28 U.S.C. § 2255(f). This high-level similarity

between the statutes does not provide reason to follow the federal standard. See

Anfinson v. FedEx Ground Package Sys., Inc., 174 Wn.2d 851, 868, 281 P.3d 289

(2012) (indicating that we follow federal statutory interpretation when a state

statute is “‘taken “substantially verbatim” from [a] federal statute’ . . . ” (alteration

6
In the Matter of the Pers. Restraint of Fowler (Vincent L.), No. 97456-0
Whitener, J. (dissenting)

in original) (quoting State v. Bobic, 140 Wn.2d 250, 264, 996 P.2d 610 (2000)

(quoting State v. Carroll, 81 Wn.2d 95, 109, 500 P.2d 115 (1972)))).

Fowler also argues that we should follow federal law because of Littlefair,

112 Wn. App. 749. This is unpersuasive. There, the Court of Appeals held RCW

10.73.090 can be equitably tolled because the aforementioned federal statute can

be equitably tolled. Id. at 758-59 (quoting Mark A. Wilner, Notes and Comments,

Justice at the Margins: Equitable Tolling of Washington’s Deadline for Filing

Collateral Attacks on Criminal Judgments, 75 WASH. L. REV. 675, 695 (2000)).

But, as noted above, Littlefair did not go on to use the federal standard. Id. at 759-

60. In any event—and also discussed above—when this court later held that

equitable tolling applied to PRPs under state law, we relied on statutory

interpretation and our case law, not federal law. Bonds, 165 Wn.2d at 140-41.

I would maintain that equitable tolling applies “when justice requires its

application and when the predicates of bad faith, deception, or false assurances are

met, and where the petitioner has exercised diligence in pursuing his or her rights.”

Haghighi, 178 Wn.2d at 447. I would hold that the predicates can be premised on

the actions of counsel in the PRP context and that Crowley’s behavior satisfies

those predicates here. However, neither the majority nor Fowler persuades me that

we should adopt the federal standard for equitable tolling.

7
In the Matter of the Pers. Restraint of Fowler (Vincent L.), No. 97456-0
Whitener, J. (dissenting)

II. Fowler was not diligent under either the state or the federal standard for
equitable tolling

While I agree with the majority that the Court of Appeals erroneously

limited the reach of equitable tolling (irrespective of my disagreement about the

federal standard), I nevertheless would reach the opposite result and affirm the

Court of Appeals. Beyond satisfying the predicates, the petitioner must also prove

that they exercised diligence in pursuing their rights. Haghighi, 178 Wn.2d at 447.

Fowler did not exercise diligence, and we should dismiss his PRP on this ground.

The evidence Fowler has provided reveals that rather than exercising

diligence, he waited while it became increasingly clear that Crowley was doing

nothing on his case. Fowler first retained Crowley on or about September 2, 2015,

shortly after his conviction was affirmed on direct appeal—a date two years prior

to when his PRP was due. Suppl. Br. of Pet’r App., Ex. F (Decl. of Darryl Fowler)

(Wash. Ct. App. No. 51029-4-II (2018)). By the time the clock began to run on

filing his PRP, on October 19, 2016, Fowler had retained Crowley for over a year.

But from September 2, 2015 to October 6, 2017, Fowler spoke with Crowley “on

only a couple of occasions” during which Crowley misstated Fowler’s name, and

Fowler’s brother and his family were unable to contact him at all. Id. Ex. D (Decl.

of Vincent Fowler), Ex. F (Decl. of Darryl Fowler). Despite Crowley’s evident

8
In the Matter of the Pers. Restraint of Fowler (Vincent L.), No. 97456-0
Whitener, J. (dissenting)

lack of progress, Fowler apparently did nothing more than infrequently attempt to

get in touch with Crowley.

Furthermore, from June 2017 onward, Fowler was entirely unable to reach

Crowley by phone. Id. Ex. D (Decl. of Vincent Fowler). Yet it was not until

October 2017 that Fowler retained present counsel. Id. In such a situation,

Fowler’s allowing months to pass without making any apparent attempt to verify

whether Crowley was making progress on his case, without attempting to retain

other counsel—without, it seems, doing much of anything other than waiting—

does not show that he was diligent. Absent any evidence indicating that Fowler

attempted to act, or was prevented from acting, during this time, I cannot conclude

that Fowler “exercised diligence in pursuing his . . . rights.” Haghighi, 178 Wn.2d

at 447.

It is true that exercising diligence is more difficult for the incarcerated than

for others. See Br. of Amicus Curiae Wash. Assoc. Criminal Def. Lawyers at 18-19

(highlighting difficulties prisoners face complying with PRP procedures). A

prisoner might be placed in solitary confinement, have minimal education,

experience language barriers, or receive little access to a phone through which they

can call their attorney. But Fowler has provided no indication that he faced any

such barriers. Rather, he has shown that he was capable of contacting counsel, both

directly and through members of his family. What the record fails to show is why,
9
In the Matter of the Pers. Restraint of Fowler (Vincent L.), No. 97456-0
Whitener, J. (dissenting)

in June 2017, when he was unable to reach Crowley—and when 22 months had

already passed since he had retained Crowley in September 2015 without any

evident progress on his case—Fowler did nothing for about another four months,

until October 2017, to rectify the situation. Such behavior does not constitute

diligence.

The majority uses the federal standard to conclude that Fowler was diligent.

But Fowler cannot show he was diligent under the federal standard, either, for the

same reasons as above. The majority relies in large part on Spitsyn v. Moore, 345

F.3d 796 (9th Cir. 2003), and John Doe v. Busby, 661 F.3d 1001 (9th Cir. 2011), to

reach the opposite conclusion. See majority at 12.

These cases do not indicate that Fowler was diligent under the federal

standard. In Spitsyn, the Ninth Circuit Court of Appeals did not hold that Spitsyn

was diligent; it remanded for “consideration of whether Spitsyn exercised

reasonable diligence in ultimately filing his petition.” 345 F.3d at 802. The Ninth

Circuit, while believing that Spitsyn may have been diligent, was not fully

convinced by the record before it. Id. This was despite the fact that the record

before the Ninth Circuit provided greater evidence of diligence than the one before

us today. Spitsyn and his mother not only wrote to Spitsyn’s attorney to “inquire

about the case” and “complain” but they also filed grievances with the Washington

State Bar Association against the attorney. Id. at 798. It was based on this record
10
In the Matter of the Pers. Restraint of Fowler (Vincent L.), No. 97456-0
Whitener, J. (dissenting)

that the Ninth Circuit determined that Spitsyn might have been diligent but

refrained from holding that was the case. Id. at 802. The majority, relying on less

evidence, holds that Fowler was diligent. The federal standard does not support

that outcome.

In Doe, where the Ninth Circuit determined that Doe was diligent, Doe did

far more than Fowler. See 661 F.3d at 1013-15. “Doe wrote numerous letters and

made scores of phone calls from prison to remind his attorney of the deadline, and

received assurances from the attorney that the petition would be filed.” Id. at 1013.

Fowler has given no indication that he made “scores” of phone calls to Crowley.

When Doe came to realize that his attorney was doing nothing, he “pursued

grievances with state authorities.” Id. It was not Fowler but others, with no

connection to him, who brought grievance proceedings against Crowley. Finally,

“[w]hen Doe’s attorney finally informed him that no petition was forthcoming after

four years of representations to the contrary and then delayed six months in

returning Doe’s files, Doe managed to file this Petition in ten days.” Id. at 1015

(second emphasis added). Fowler was not so quick. While Fowler’s replacement

counsel filed the “placeholder” petition 12 days after he first met with Darryl

Fowler, Suppl. Br. of Pet’r App., Ex. F (Decl. of Darryl Fowler) (Wash. Ct. App.

No. 51029-4-II (2018)), Fowler, through this counsel, did not manage to file his

supplemental, substantive PRP until March 2018—about six months after
11
In the Matter of the Pers. Restraint of Fowler (Vincent L.), No. 97456-0
Whitener, J. (dissenting)

replacement counsel was hired. Fowler’s efforts were a far cry from the diligence

on display in Doe.

The majority opines that under its newly adopted federal standard, “[t]he

diligence required for equitable tolling is not exceptional diligence or maximum

feasible diligence”; rather, the petitioner must only act “as diligently as reasonably

can be expected under the circumstances.” Majority at 12 (internal quotation marks

and citations omitted). But insofar as cases like Doe and Spitsyn demonstrate the

standard for reasonable diligence, Fowler simply does not meet it.

CONCLUSION

I agree with Part I of the majority opinion and that equitable tolling may be

premised on the actions of one’s counsel. However, I disagree with the majority’s

decision to adopt the federal standard in addition to our own. Instead we should

adhere solely to our precedent regarding the standard for equitable tolling. Further,

we should affirm the Court of Appeals, as Fowler was not diligent under either our

state standard or the federal standard.

12
In the Matter of the Pers. Restraint of Fowler (Vincent L.), No. 97456-0
Whitener, J. (dissenting)

For the foregoing reasons, I respectfully dissent.

Whitener, J.

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