109 Wn.2d 607, TOLIVER v. OLSEN

CITE:          109 Wn.2d 607, 746 P.2d 809

               TOLIVER v. OLSEN


FILE DATE:     December 10, 1987

CASE TITLE: Gary Wayne Toliver, Petitioner, v. H. Dean Olsen,
               et al, Respondents.

[1] Habeas Corpus - Condition Precedent - Relief From Personal Restraint. A prisoner seeking postconviction relief need not file a personal restraint petition in an appellate court before exercising his constitutional and statutory right to apply for a writ of habeas corpus in superior court. The superior court has discretion to transfer the matter to the Court of Appeals for consideration as a personal restraint petition if such a transfer will serve the ends of justice.

NAMES OF CONCURRING OR DISSENTING JUDGES: Goodloe, J., did not participate in the disposition of this case.

NATURE OF ACTION: A prisoner filed a habeas corpus petition in the superior court of the county in which he was incarcerated.

Superior Court: The Superior Court for King County, No. 84-2 09182-7, Terrence A. Carroll, J., denied the petition on September 26, 1984.

Court of Appeals: The court at 47 Wn. App. 304 AFFIRMED the denial of the petition and, alternatively, DISMISSED the petition, holding that the prisoner was required first to seek relief from personal restraint in an appellate court.

Supreme Court: Holding that a personal restraint petition is not a prerequisite to seeking relief by a writ of habeas corpus in superior court, the court REVERSES the Court of Appeals dismissal of the petition.

COUNSEL:      TERRENCE KELLOGG, for petitioner.


NEIL M. FOX on behalf of Washington Appellate Defender Association, ROBERT STALKER on behalf of Evergreen Legal Services, and JOHN MIDGLEY, amici curiae for petitioner.




Of concern here is the availability in the superior court of the Great Writ of antiquity, habeas corpus, for postconviction relief.

The facts are fully set forth in the Court of Appeals opinion in this case. 1

1 TOLIVER v. OLSEN, 47 Wn. App. 304, 734 P.2d 937 (1987).

In summary, the defendant pleaded guilty to several felony counts, was convicted and sentenced thereon and then was ultimately released on parole. While on parole, he was again arrested and incarcerated, this time for a parole violation. He petitioned the superior court of the county in which he was detained for a writ of habeas corpus alleging, among other things, that his earlier guilty pleas were not constitutionally valid. At a hearing, the superior court found that the guilty pleas were valid and denied the petition.

On appeal, the Court of Appeals upheld the superior court's determination on the merits of the petition. 2

2 This section of the Court of Appeals opinion was filed for public record in this cause but was not published.

The Court of Appeals went on, however, and as an alternative ground of decision held that the defendant's failure to first seek relief by personal restraint petition 3

3 RAP 16.3-16.15.

precluded consideration of his habeas corpus petition by the superior court. 4

4 TOLIVER v. OLSEN, SUPRA. The portion of the opinion here referred to was published. In it, the Court of Appeals also acknowledged in footnote 3, however, that habeas corpus may be appropriate where a personal restraint petition is otherwise inadequate. TOLIVER, at 308.

We granted discretionary review of this alternative ground of decision.

One issue is presented.


Before a prisoner can seek postconviction review by a writ of habeas corpus in the superior court, must the prisoner first bring a personal restraint petition proceeding?


CONCLUSION. The answer to the question posed by this issue is "no". The Supreme Court, Court of Appeals and superior court have concurrent jurisdiction in habeas corpus proceedings wherein postconviction relief is sought. If a habeas corpus petition is filed in such a case in the superior court of the county in which the petitioner is incarcerated, that court may itself handle and determine the matter. The superior court, however, may transfer the proceeding to the Court of Appeals for consideration as a personal restraint petition if the superior court, in the exercise of its informed discretion, determines that the ends of justice will best be served by such a transfer.

As generally used, "habeas corpus" refers to habeas corpus ad subjiciendum, which is a writ issued pursuant to a petition or application directed to an officer or other person who is detaining another, and requiring that such person make a return thereon. 5

5 39 Am. Jur. 2d HABEAS CORPUS 1, at 179 (1968); IN RE GRIEVE, 22 Wn.2d 902, 158 P.2d 73 (1945).

Although dealt with in both state 6

6 RCW 7.36.

and federal 7

7 28 U.S.C. 2241-2255 (1982).

statutes, this prerogative writ is antecedent to statute and is recognized in both the United States Constitution 8

8 U.S. Const. art. 1, 9.

and our state constitution. 9

9 Const. art. 4, 4; Const. art. 4, 6 (amend. 65). SEE FAY v. NOIA, 372 U.S. 391, 400, 9 L. Ed. 2d 837, 83 S. Ct. 822 (1963).

"Whatever its other functions, the great and central office of the writ of habeas corpus is to test the legality of a prisoner's current detention." 10

10 WALKER v. WAINWRIGHT, 390 U.S. 335, 336, 19 L. Ed. 2d 1215, 88 S. Ct. 962, REH'G DENIED, 390 U.S. 1036 (1968); SEE PETTIT v. RHAY, 62 Wn.2d 515, 518, 383 P.2d 889 (1963); THOMAS v. RHAY, 2 Wn. App. 843, 844, 472 P.2d 606 (1970).

In providing for the jurisdiction of the superior court, our state constitution declares that such "courts and their judges shall have power to issue . . . writs of habeas corpus, on petition by or on behalf of any person in actual custody in their respective counties." Const. art. 4, 6 (amend. 65) (part). The defendant argues that to the extent the Court of Appeals opinion requires one petitioning for a writ of habeas corpus in a postconviction relief case to first seek relief by personal restraint petition in the appellate courts, it improperly divests the superior court of its constitutional habeas corpus jurisdiction. We agree.

Postconviction review is now a well established part of this state's criminal process. 11

11 HOLT v. MORRIS, 84 Wn.2d 841, 845, 529 P.2d 1081 (1974), OVERRULED IN PART ON OTHER GROUNDS IN WRIGHT v. MORRIS, 85 Wn.2d 899, 540 P.2d 893 (1975).

Our postconviction relief rules, RAP 16.3-16.15, were adopted in order to provide a "single unitary postconviction remedy". 12

12 SEE HOLT, at 843-45; 3 L. Orland, Wash. Prac., RULES PRACTICE 4161-4164 (3d ed. 1978).

As the rules themselves explain:

"     (a) Habeas Corpus and Postconviction Relief. Rules
      16.3 through 16.15 establish a single procedure for original
      proceedings in the appellate court to obtain relief formerly
      available by a petition for writ of habeas corpus or by
      an application for postconviction relief.

(b) Former Procedure Superseded. The procedure established
      by rules 16.3 through 16.15 for a personal restraint petition
      supersedes the appellate procedure formerly available
      for a petition for writ of habeas corpus and for an application
      for postconviction relief, unless one of these rules specifically
      indicates to the contrary. These rules do not supersede
      and do not apply to habeas corpus proceedings initiated
      in the superior court.

(c) Original Appellate Court Jurisdiction. The Supreme
      Court and the Court of Appeals have original concurrent
      jurisdiction in personal restraint petition proceedings.
      The Supreme Court will ordinarily exercise its jurisdiction
      by transferring the petition to the Court of Appeals.

RAP 16.3.

[1] These rules established a single procedure for postconviction relief in the APPELLATE COURTS termed a personal restraint petition and provide an expanded habeas corpus remedy in those courts. Among other things, those rules provide that where there are factual disputes, the Court of Appeals will decide such petitions only after first referring the factual disputes to the trial court for determination. 13

13 RAP 16.11(b), 16.12, 16.13; SEE Comment, RAP 16.3, 86 Wn.2d 1242 (1977).

Then, out of deference to the fact that habeas corpus is a constitutional writ, the rule just quoted specifically declares that the personal restraint petition rules "do NOT apply to habeas corpus proceedings initiated IN THE SUPERIOR COURT." (Italics ours.) 14

14 RAP 16.3(b) (part).

Thus, the personal restraint rules do not affect the habeas corpus jurisdiction of superior courts, even in postconviction review cases such as this one. 15

15 SEE IN RE BROWN, 35 Wn. App. 852, 854, 670 P.2d 673 (1983).

It seems obvious that the concern of the Court of Appeals, in its decision herein reviewed, was to maintain an orderly procedure for handling the considerable volume and variety of requests for postconviction relief now being filed in the state court system. We share this concern and agree with the need for a sound, expeditious, comprehensive system for postconviction review. 16

16 SEE HOLT, at 844-45.

We believe, however, that such a system can be maintained without affecting the integrity of superior court habeas corpus jurisdiction.

The problem arises when pertinent evidence and witnesses relating to arrest, trial, incarceration, etc., may be in different counties throughout the state and not reasonably accessible in the county where the prisoner is in custody and files his or her habeas corpus petition.

In the federal system this problem is taken care of by statute. There, the district courts for the place of confinement and the place of conviction have concurrent habeas corpus jurisdiction and the court in which the petition is filed may, in its discretion, transfer the petition to the other district for hearing and determination if this is in furtherance of justice. 17

17 28 U.S.C. 2241(d) (1982); 17 C. Wright, A. Miller & E. Cooper, FEDERAL PRACTICE 4268, at 697 (1978).

A similar procedural provision exists under our superior court criminal rules in vacation of judgment cases:

"     The court may deny the motion without a hearing
      if the facts alleged in the affidavits do not establish
      grounds for relief. The court may transfer a motion to
      the Court of Appeals for consideration as a personal restraint
      petition if such transfer would serve the ends of justice.
      Otherwise, the court shall enter an order fixing a time
      and place for hearing and directing the adverse party
      to appear and show cause why the relief asked for should
      not be granted.

CrR 7.8(c)(2).

We believe that this rule applies to habeas corpus petitions filed in the superior court which seek postconviction relief, if not directly then by analogy. The Supreme Court, Court of Appeals and superior court have concurrent original jurisdiction of habeas corpus proceedings seeking postconviction relief. 18

18 Const. art. 4, 4 and RAP 16.3(c) (Supreme Court); Const. art. 4, 30(2), RCW 7.36.040 and RAP 16.3(c) (Court of Appeals); Const. art. 4, 6 (amend. 65) (superior court). SEE HOLT, at 845 n.1.

In the APPELLATE COURTS, the proceeding is now denominated a "personal restraint petition" and the procedures are covered by the personal restraint petition rules, RAP 16.3-16.15. 19

19 IN RE BROWN, at 854.

In the SUPERIOR COURT, however, such proceedings still employ traditional habeas corpus terminology and the procedures are primarily those prescribed by statute, RCW 7.36.


CONCURRING JUDGES: Pearson, C.J., Utter, Brachtenbach, Dolliver, Dore, Callow, and Durham, JJ., and Cunningham, J. Pro Tem., concur.

POST-OPINION INFORMATION: Reconsideration denied January 15, 1988.