In re the Personal Restraint of McVay

993 P.2d 267, 99 Wash. App. 502
CourtCourt of Appeals of Washington
DecidedNovember 22, 1999
DocketNo. 42570-6-I
StatusPublished
Cited by4 cases

This text of 993 P.2d 267 (In re the Personal Restraint of McVay) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re the Personal Restraint of McVay, 993 P.2d 267, 99 Wash. App. 502 (Wash. Ct. App. 1999).

Opinion

Webster, J.

Raymond D. McVay, a prisoner, received 10 days disciplinary segregation for committing a “602 infraction”—possessing the components of a knife, sharpened instrument, or other weapon in prison. He has filed a personal restraint petition (PRP) claiming: (1) He is under “restraint”; and (2) the “restraint” is unlawful because the disciplinary decision leading to it was not supported by “some evidence” and because he was denied the assistance of a staff advisor.

FACTS

On February 3, 1998, a correctional officer conducted a security check of the “MSC Industries Sign Shop” at the Washington State Penitentiary in Walla Walla. During the [504]*504security check, he discovered 19 pieces of metal measuring one and one-half inches wide and ten inches long concealed in the back of a desk drawer in the screening department. The officer documented and photographed the metal pieces and then secured them in the shift lieutenant’s office for further investigation.

Another officer interviewed three inmates who stated they “knew nothing.” He then interviewed McVay who stated that he knew about the metal pieces because they were in his desk drawer. McVay told the officer that the purpose of the metal pieces was for replacing the labels on the silk screen frames. An inmate who had given them to McVay said he was authorized to cut the metal pieces two months prior.

The officer noted that a supervisor had instructed the inmates to dispose of materials such as the metal pieces. In a memorandum dated February 4, 1998, this supervisor stated, “Last week I went to the recycle [sic] room, screening area, and layout area, and specifically told the inmates to go through their desks and lockers to make sure that everything there was needed and approved.” Memorandum from Dixon to Lt. Maguire (Feb. 4, 1998) at 1-2. He also stated that he did not recall giving authorization to cut the metal pieces. A different supervisor initially said that he did not give authorization either, but later redacted his statement and recalled giving his approval to McVay.

On February 5, 1998, McVay received notice of the infractions charged against him and his hearing date (Feb. 10, 1998). McVay requested a staff advisor on the notice form. A prison official denied his request for a staff advisor, stating “not needed” on the form. McVay and a prison official both signed the form.

At McVay’s disciplinary hearing on February 10, 1998, the hearing officer found McVay “guilty of possession of a weapon” and sanctioned him to 10 days’ segregation and loss of 90 days’ good time for 360 days. Upon McVay’s appeal, the superintendent reduced the sanction to a repri[505]*505mand and warning and limited the disciplinary segregation to time served. Prison officials recommended release to the general population and noted, “Further investigation indicates metal found was authorized for cutting by work supervisors.” Classification Referral/Administrative Segregation.

DISCUSSION

I. Restraint

An initial question presented is whether McVay, a prisoner, is under “restraint” when charged with a serious infraction. A personal restraint petition requires the petitioner to be under “restraint.” See RAP 16.4. RAP 16.4(b) states:

A petitioner is under a “restraint” if the petitioner has limited freedom because of a court decision in a civil or criminal proceeding, the petitioner is confined, the petitioner is subject to imminent confinement, or the petitioner is under some other disability resulting from a judgment or sentence in a criminal case.

McVay argues that he satisfied the “restraint” requirement because the disciplinary decision potentially allows the Indeterminate Sentencing Review Board (ISRB) to increase his minimum sentence. The State contends that the ISRB makes its own determination of whether prison infractions actually occurred when considering minimum sentence increases. McVay responds that he may not be able to collaterally attack this infraction later, and therefore meets the “restraint” requirement of RAP 16.4(b).

Here, McVay is under “restraint” for purposes of RAP 16.4(b) because a prison disciplinary hearing officer found him guilty of a serious infraction and imposed disciplinary segregation and loss of good time credits (that the prison superintendent later redacted). Cf In re Personal Restraint of Gronquist, 138 Wn.2d 388, 397, 978 P.2d 1083 [506]*506(1999) (In serious infraction hearings, Washington prisoners are entitled to minimum due process); In re Personal Restraint of Richardson, 100 Wn.2d 669, 670, 675 P.2d 209 (1983) (restraint may include “a serious blot” on a person’s record resulting from a conviction even if the person has completed his or her sentence). We need not reach McVay’s argument that since the disciplinary decision potentially allows the ISRB to increase his minimum sentence, he is under restraint. It is too speculative as to what the ISRB will do. Having found McVay to be under sufficient restraint for purpose of our review, we consider the merits of the personal restraint petition. In view of the record, as discussed below, we find no merit and dismiss accordingly.

II. Unlawful Restraint

The court will grant relief to a petitioner if the restraint is unlawful for reasons defined in RAP 16.4(c). See RAP 16.4(a). A petitioner may obtain full collateral review of a conviction or sentence if the petitioner demonstrates “actual and substantial” prejudice from a constitutional error, or nonconstitutional error that inherently results in a complete miscarriage of justice. See In re Personal Restraint of Cook, 114 Wn.2d 802, 813, 792 P.2d 506 (1990). A petitioner must support his claim with facts or evidence of uxdawful restraint, and not merely conclusory allegations. See id. at 813-14.

McVay claims that his restraint was unlawful, citing RAP 16.4(c)(2) and (6). Under RAP 16.4(c)(2), restraint is unlawful when a conviction, sentence, or other order violates the federal or state constitution or state law. RAP 16.4(c)(6) makes restraint unlawful when conditions or manner of the restraint violate the federal or state constitution or state law. McVay contends that the disciplinary decision failed to meet minimum standards of due process, and therefore constitutes constitutional error. The State argues that McVay is not entitled to minimum due process [507]*507because he has not demonstrated deprivation of a protected liberty interest.

The Washington Supreme Court has held that prisoners are entitled to minimum due process in “serious infraction” hearings. See Gronquist, 138 Wn.2d at 397. Here, prison officials charged McVay with a “602” infraction listed under WAC 137-28-260 as a “serious infraction.” After the disciplinary hearing, McVay received 10 days segregation and loss of 90 days good time for 360 days. However, the prison superintendent efiminated the loss of good time upon appeal. Although McVay did not actually suffer loss of good time, McVay did appear in a “serious infraction” hearing. Therefore, following Gronquist,

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993 P.2d 267, 99 Wash. App. 502, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-personal-restraint-of-mcvay-washctapp-1999.