In re Pers. Restraint of Davis

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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
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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.
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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.
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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
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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."

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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.
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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.
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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.
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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."

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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),

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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

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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

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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
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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.

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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).
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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.
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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.

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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
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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?

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In re Pers. Restraint ofDavis, No. 89590-2
(Gordon McCloud, J., concurring)

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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).
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
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).

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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
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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
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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.

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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)).

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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
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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.

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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).

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No. 89590-2
Madsen, J., dissenting

10