In the Matter of the Personal Restraint of: Zachary Joseph Biggs
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Opinion
FILED APRIL 27, 2023 In the Office of the Clerk of Court WA State Court of Appeals Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
In re the Matter of Personal Restraint of ) ) No. 37306-1-III Zachary Joseph Biggs. ) ) ) UNPUBLISHED OPINION ) ) FEARING, C.J. — Pending before this court is a personal restraint petition by which
Zachary Biggs seeks to vacate his convictions on two counts of rape in the first degree
and a felony violation of a domestic violence protection order. We deny the petition.
In 2015, Asotin County Superior Court Judge Scott Gallina, after a bench trial,
convicted Biggs of the three charges. In April 2018, this court affirmed the convictions.
The Washington State Supreme Court denied review on October 3, 2018. The United
States Supreme Court denied certiorari on May 28, 2019.
On October 3, 2019, Zachary Biggs filed a pro se CrR 7.8 motion in superior court.
The superior court transferred the motion to this court to handle as a personal restraint
petition. This court subsequently remanded the matter for two reference hearings. The
superior court appointed counsel for Biggs at the time of the first reference hearing. This
counsel continues to represent Biggs today. During the first reference hearing, counsel No. 37306-1-III In re Personal Restraint of Zachary Biggs
raised new contentions. Both reference hearing judges entered findings of fact, on which
we now rely.
We now hold that time bars the additional assigned errors raised by counsel. We
also hold that Biggs’ initial contentions lack merit.
FACTS
This prosecution involves alleged rape of a wife by her husband. Zachary and
Stacey Biggs were married with children. We often refer to Zachary Biggs as “Biggs”
and Stacey Biggs as “Stacey.” In November 2013, Stacey separated from Biggs out of
concern for her husband’s aberrant behavior. Biggs had falsely claimed to neighbors that
Stacey, their newborn baby, and Biggs had recently been raped.
In December 2013, Stacey filed for divorce and procured a protection order to
preclude Zachary Biggs from contacting her. Biggs moved to his mother’s abode.
Stacey occasionally saw Zachary Biggs thereafter. Biggs behaved normally and
politely during these encounters. At a filling station, Biggs gentlemanly told Stacey that
his mother had fallen ill and that he consequently had not been eating.
On the afternoon of December 10, 2013, Stacey delivered a child to Biggs’
mother’s house. Stacey noted that the mother presented in fine health, contrary to Biggs’
claim, but the home lacked food. Stacey left, but confronted guilt for not bringing spare
groceries to Biggs. Stacey returned to her mother-in-law’s home, at 8 p.m., bearing
groceries. In the meantime, Biggs’ mother had departed the house for work.
2 No. 37306-1-III In re Personal Restraint of Zachary Biggs
As Stacey approached the back door of Zachary Biggs’ mother’s abode the night of
December 10, Biggs opened the door. Biggs inquired of Stacey: “‘What are you doing
here?’” Report of Proceedings (RP) at 191, State v. Biggs, No. 33721-9-III. Stacey
replied: “‘Oh, I brought you some food.’” RP at 191. Biggs interjected: “‘Are the boys
with you?’” RP at 191. Stacey responded: “‘No.’” RP at 191. Biggs instantly placed a
chokehold on Stacey’s neck and threw her to the floor. He pounced on Stacey and yelled
in her face: “‘Why are you here?’” RP at 191. “‘Who sent you?’” RP at 191. Biggs
demanded Stacey enter his room. Once the two entered the room, Biggs shut and locked
the door.
Zachary Biggs flung Stacey on the bed and repeatedly instructed her to remain
silent. Biggs, with his forearm, applied pressure to Stacey’s neck while she lay trapped on
the bed. Biggs held a machete and again interrogated Stacey as to who sent her to his
mother’s home. He repeatedly threatened her. Stacey pleaded with Biggs to release her
to return home. In trial testimony, Stacey recalled Biggs menacingly sneering:
You ain’t going home. I’m going to kill you. I’ll have the kids. I’ll hide your body before this is all over and done with, and, before anybody knows you’re missing, I’ll be gone and so will you.
RP at 194.
While entrapping Stacey Biggs on the bed, Biggs claimed that individuals in masks
had impersonated him. Biggs pushed and pulled on Stacey’s lips, nose, and eyes, and dug
into her face. Biggs declared that he needed to confirm the body he attacked was Stacey’s
3 No. 37306-1-III In re Personal Restraint of Zachary Biggs
corpus. Biggs also insisted to Stacey that he witnessed her performing oral sex on other
men. Biggs informed Stacey that she would be dead by night. Biggs then held a large
sharpening stone in his right hand and threatened to bash Stacey’s face if she did not
cooperate with him.
Zachary Biggs demanded sex from Stacey while holding a machete to her neck.
Biggs grabbed Stacey’s hair and forced her face to his groin. Stacey performed oral sex
until nearly retching. During the sexual assault, Biggs named the women with whom he
engaged in sexual conduct during the couple’s separation. Biggs released Stacey.
After releasing Stacey from his grip, Zachary Biggs carped to Stacey: “‘[y]ou’re
not doing it like I showed you.’” RP at 202. Biggs regrabbed Stacey by her hair and
placed her on the hard floor. Biggs uttered: “‘[i]f you don’t make love to me like my wife
I’m going to stab you.’” RP at 203. Biggs then vaginally raped Stacey on the floor.
Biggs reached to retrieve his machete. Stacey pleaded with him that she had been in a car
accident and intercourse on a hard floor hurt her back. She cried in pain. After
threatening her again, Biggs allowed Stacey to move to the bed.
Under duress, Stacey submitted to Zachary Biggs again while the two lay on the
bed a second time. Stacey did not think she would leave the bedroom alive.
After nearly three hours, Zachary Biggs ended the assault and allowed Stacey to
dress. Biggs asked Stacey to drive him to a store so he could purchase a cigar. Stacey
4 No. 37306-1-III In re Personal Restraint of Zachary Biggs
complied. At the store, Biggs threatened Stacey with death if she reported his conduct.
He then acted as if checking his watch, although not wearing one, and remarked:
Yeah, about this time tomorrow I’ll probably be in jail. And that’s all right; I’ll do my time. ‘Cause when I get out I’ll come find you, I’ll sneak in the middle of the night and I’ll slice your throat. Or I’ll come out to your work, wait for you to get off and run your ass and your car into the river and I’ll kill you.
RP at 209-10.
On December 11, 2013, Stacey Biggs told coworkers of the rape after her
colleagues inquired about her disquietude. Coworkers reported the rape to law
enforcement.
Asotin County Sheriff Deputy Jeffrey Polillo spoke with Zachary Biggs about the
alleged rape at Biggs’ request. Biggs was then incarcerated in jail on other charges.
Biggs and Deputy Polillo knew each other from prior law enforcement contacts and had a
relationship of mutual respect. When Biggs requested the conversation, Deputy Polillo
did not know of Stacy Biggs’ rape allegation.
During the jail interview between Zachary Biggs and Deputy Jeff Polillo, Biggs
related a story about possessing evidence that people were clones, claimed that he once
saw someone at a casino identical to him, asserted that the clone-makers had drugged him
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FILED APRIL 27, 2023 In the Office of the Clerk of Court WA State Court of Appeals Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
In re the Matter of Personal Restraint of ) ) No. 37306-1-III Zachary Joseph Biggs. ) ) ) UNPUBLISHED OPINION ) ) FEARING, C.J. — Pending before this court is a personal restraint petition by which
Zachary Biggs seeks to vacate his convictions on two counts of rape in the first degree
and a felony violation of a domestic violence protection order. We deny the petition.
In 2015, Asotin County Superior Court Judge Scott Gallina, after a bench trial,
convicted Biggs of the three charges. In April 2018, this court affirmed the convictions.
The Washington State Supreme Court denied review on October 3, 2018. The United
States Supreme Court denied certiorari on May 28, 2019.
On October 3, 2019, Zachary Biggs filed a pro se CrR 7.8 motion in superior court.
The superior court transferred the motion to this court to handle as a personal restraint
petition. This court subsequently remanded the matter for two reference hearings. The
superior court appointed counsel for Biggs at the time of the first reference hearing. This
counsel continues to represent Biggs today. During the first reference hearing, counsel No. 37306-1-III In re Personal Restraint of Zachary Biggs
raised new contentions. Both reference hearing judges entered findings of fact, on which
we now rely.
We now hold that time bars the additional assigned errors raised by counsel. We
also hold that Biggs’ initial contentions lack merit.
FACTS
This prosecution involves alleged rape of a wife by her husband. Zachary and
Stacey Biggs were married with children. We often refer to Zachary Biggs as “Biggs”
and Stacey Biggs as “Stacey.” In November 2013, Stacey separated from Biggs out of
concern for her husband’s aberrant behavior. Biggs had falsely claimed to neighbors that
Stacey, their newborn baby, and Biggs had recently been raped.
In December 2013, Stacey filed for divorce and procured a protection order to
preclude Zachary Biggs from contacting her. Biggs moved to his mother’s abode.
Stacey occasionally saw Zachary Biggs thereafter. Biggs behaved normally and
politely during these encounters. At a filling station, Biggs gentlemanly told Stacey that
his mother had fallen ill and that he consequently had not been eating.
On the afternoon of December 10, 2013, Stacey delivered a child to Biggs’
mother’s house. Stacey noted that the mother presented in fine health, contrary to Biggs’
claim, but the home lacked food. Stacey left, but confronted guilt for not bringing spare
groceries to Biggs. Stacey returned to her mother-in-law’s home, at 8 p.m., bearing
groceries. In the meantime, Biggs’ mother had departed the house for work.
2 No. 37306-1-III In re Personal Restraint of Zachary Biggs
As Stacey approached the back door of Zachary Biggs’ mother’s abode the night of
December 10, Biggs opened the door. Biggs inquired of Stacey: “‘What are you doing
here?’” Report of Proceedings (RP) at 191, State v. Biggs, No. 33721-9-III. Stacey
replied: “‘Oh, I brought you some food.’” RP at 191. Biggs interjected: “‘Are the boys
with you?’” RP at 191. Stacey responded: “‘No.’” RP at 191. Biggs instantly placed a
chokehold on Stacey’s neck and threw her to the floor. He pounced on Stacey and yelled
in her face: “‘Why are you here?’” RP at 191. “‘Who sent you?’” RP at 191. Biggs
demanded Stacey enter his room. Once the two entered the room, Biggs shut and locked
the door.
Zachary Biggs flung Stacey on the bed and repeatedly instructed her to remain
silent. Biggs, with his forearm, applied pressure to Stacey’s neck while she lay trapped on
the bed. Biggs held a machete and again interrogated Stacey as to who sent her to his
mother’s home. He repeatedly threatened her. Stacey pleaded with Biggs to release her
to return home. In trial testimony, Stacey recalled Biggs menacingly sneering:
You ain’t going home. I’m going to kill you. I’ll have the kids. I’ll hide your body before this is all over and done with, and, before anybody knows you’re missing, I’ll be gone and so will you.
RP at 194.
While entrapping Stacey Biggs on the bed, Biggs claimed that individuals in masks
had impersonated him. Biggs pushed and pulled on Stacey’s lips, nose, and eyes, and dug
into her face. Biggs declared that he needed to confirm the body he attacked was Stacey’s
3 No. 37306-1-III In re Personal Restraint of Zachary Biggs
corpus. Biggs also insisted to Stacey that he witnessed her performing oral sex on other
men. Biggs informed Stacey that she would be dead by night. Biggs then held a large
sharpening stone in his right hand and threatened to bash Stacey’s face if she did not
cooperate with him.
Zachary Biggs demanded sex from Stacey while holding a machete to her neck.
Biggs grabbed Stacey’s hair and forced her face to his groin. Stacey performed oral sex
until nearly retching. During the sexual assault, Biggs named the women with whom he
engaged in sexual conduct during the couple’s separation. Biggs released Stacey.
After releasing Stacey from his grip, Zachary Biggs carped to Stacey: “‘[y]ou’re
not doing it like I showed you.’” RP at 202. Biggs regrabbed Stacey by her hair and
placed her on the hard floor. Biggs uttered: “‘[i]f you don’t make love to me like my wife
I’m going to stab you.’” RP at 203. Biggs then vaginally raped Stacey on the floor.
Biggs reached to retrieve his machete. Stacey pleaded with him that she had been in a car
accident and intercourse on a hard floor hurt her back. She cried in pain. After
threatening her again, Biggs allowed Stacey to move to the bed.
Under duress, Stacey submitted to Zachary Biggs again while the two lay on the
bed a second time. Stacey did not think she would leave the bedroom alive.
After nearly three hours, Zachary Biggs ended the assault and allowed Stacey to
dress. Biggs asked Stacey to drive him to a store so he could purchase a cigar. Stacey
4 No. 37306-1-III In re Personal Restraint of Zachary Biggs
complied. At the store, Biggs threatened Stacey with death if she reported his conduct.
He then acted as if checking his watch, although not wearing one, and remarked:
Yeah, about this time tomorrow I’ll probably be in jail. And that’s all right; I’ll do my time. ‘Cause when I get out I’ll come find you, I’ll sneak in the middle of the night and I’ll slice your throat. Or I’ll come out to your work, wait for you to get off and run your ass and your car into the river and I’ll kill you.
RP at 209-10.
On December 11, 2013, Stacey Biggs told coworkers of the rape after her
colleagues inquired about her disquietude. Coworkers reported the rape to law
enforcement.
Asotin County Sheriff Deputy Jeffrey Polillo spoke with Zachary Biggs about the
alleged rape at Biggs’ request. Biggs was then incarcerated in jail on other charges.
Biggs and Deputy Polillo knew each other from prior law enforcement contacts and had a
relationship of mutual respect. When Biggs requested the conversation, Deputy Polillo
did not know of Stacy Biggs’ rape allegation.
During the jail interview between Zachary Biggs and Deputy Jeff Polillo, Biggs
related a story about possessing evidence that people were clones, claimed that he once
saw someone at a casino identical to him, asserted that the clone-makers had drugged him
to take a mold of his face for the clones, and reported that, when he awoke from the drug
trip, he discovered a Twizzler candy rope inserted into his rectum. Biggs asked Polillo
5 No. 37306-1-III In re Personal Restraint of Zachary Biggs
how Stacey Biggs could accuse him of rape “when she came to my house wanting to fuck
me.” RP at 306.
One year after Zachary Biggs’ trial, the Asotin County sheriff terminated Deputy
Jeff Polillo’s employment for misconduct. Biggs then sought information relating to
Deputy Polillo’s termination, but the sheriff denied the request due to a restraining order,
in a lawsuit initiated by Polillo, preventing the release of Polillo’s personnel file to third
parties. According to Deputy Prosecuting Attorney Curt Liedkie, the incident, for which
the sheriff fired Polillo, occurred after Zachary Biggs’ trial.
PROCEDURE
The State of Washington charged Zachary Biggs with two counts of rape in the
first degree and one count of felony violation of a domestic violence court order. The
charges alleged that Biggs bore a deadly weapon when committing the crimes against a
family or household member.
Attorney Noel Pitner first represented Zachary Biggs in the prosecution. Pitner
performed few services before Biggs procured his removal and began to represent
himself. Before his removal, Pitner procured a ruling directing a competency evaluation
of Biggs.
In 2018, two years after Zachary Biggs’ trial, the State of Washington suspended
Noel Pitner for two years from practicing law. The state of Idaho also suspended Pitner’s
6 No. 37306-1-III In re Personal Restraint of Zachary Biggs
license to practice. The misconduct that precipitated the suspension occurred after
Pitner’s representation of Biggs.
Dr. Daniel Lord-Flynn of Eastern State Hospital conducted a competency
examination of Zachary Biggs and determined that Biggs possessed capacity to
understand the court proceedings and participate in his own defense. Dr. Lord-Flynn
diagnosed Biggs with a personality disorder.
After the exit of Noel Pitner as counsel for Zachary Biggs, the superior court
appointed John Fay as stand-by attorney for Biggs. Biggs eventually agreed to Fay
serving fully as his counsel, and Fay represented Biggs through his trial.
In 2012, the Washington State Supreme Court created the Standards for Indigent
Defense (SID). These standards created recommended minimum experience requirements
and maximum case load limits for criminal defense attorneys providing indigent defense
services. Although being stated in mandatory terms, the preamble to the SID declares that
the standards provide “guidance” only.
Standards 14.2(B) and (D) list minimum experience requirements for lawyers who
represent defendants charged with Class A felonies and sex offenses. Attorneys on Class
A felonies must have two years of criminal law experience and have “been trial counsel
alone or with other counsel and handled a significant portion of the trial in three felony
cases that have been submitted to a jury.” SID 14.2(B)(iii). Attorneys on sex cases must
also have “been counsel alone of record in an adult or juvenile sex offense case or shall be
7 No. 37306-1-III In re Personal Restraint of Zachary Biggs
supervised by or consult with an attorney who has experience representing juveniles or
adults in sex offense cases.” SID 14.2(D)(ii).
When a lawyer lacks the minimum experience requirements of SID 14.2, the
lawyer may associate with another lawyer who meets these qualifications: “Attorneys
working toward qualification for a particular category of cases under this standard may
associate with lead counsel who is qualified under this standard for that category of
cases.” SID 14.2 n.1. This standard further reads that an unqualified lawyer may
represent a client in a sex offense prosecution if the lawyer is “supervised by or consult[s]
with an attorney who has experience representing juveniles or adults in sex offense
cases.” SID 14.2(D)(ii).
Prior to representing Zachary Biggs, John Fay had served as counsel on a charge of
rape with forcible compulsion. This prosecution was resolved without a trial. Also at the
time, Fay had only conducted two misdemeanor trials. By the time of Biggs’ trial in this
prosecution, Fay had 1.5 years of criminal defense experience and a half year of
prosecution experience. Thus, by the time of trial, Fay barely met the minimum
requirement of two years’ experience as either a prosecutor or defense attorney under
Washington’s SID. By the time of trial, Fay had served as second chair on a third strike
trial for assault in the first degree and first chair in a trial for robbery and burglary in the
first degree, both Class A felonies. RP 292 (RH 1). This experience did not qualify Fay
under SID guidance to handle Class A felonies and sex offenses on his own. Fay did not
8 No. 37306-1-III In re Personal Restraint of Zachary Biggs
meet SID 14.2(B) and (D) prior to being assigned to represent Biggs, and still did not at
the time of trial.
Because of his lack of experience, John Fay associated with Richard Laws. By the
time of representing Zachary Biggs, Fay had associated with Laws in thirty other felony
cases in order to satisfy the indigent defense standards. Fay consulted with Laws on two
matters of strategy in Biggs’ prosecution. Laws rarely interacted with Biggs and did not
participate in trial.
Zachary Biggs waived his right to a jury trial. Attorney John Fay recommended to
Biggs that he waive the constitutional right because Asotin County Superior Court Judge
Scott Gallina had acquitted others accused of sex crimes. Fay also worried that Zachary’s
demeanor and personality would alienate a jury if he chose to testify at trial and that Judge
Gallina would be less likely to be offended by Zachary’s potential trial testimony.
Zachary Biggs initially pled guilty to one count of rape in the second degree as part
of a plea deal. Under this plea agreement, Biggs intended to request a special sex
offender sentencing alternative (SSOSA). When Biggs obtained his SSOSA evaluation,
he learned that one convicted of rape in the second degree is not eligible for a SSOSA
sentence. The deputy prosecutor, his attorney, and the judge, did not earlier know about
this requirement of SSOSA eligibility. Biggs moved to withdraw his guilty plea, and
Asotin County Superior Court Judge Scott Gallina granted the motion.
9 No. 37306-1-III In re Personal Restraint of Zachary Biggs
On July 6, 2015, after Zachary Biggs withdrew his guilty plea, the trial court
conducted a hearing to schedule the trial date. At the start of the hearing, the State
represented that jail officials had placed Biggs in a court holding cell, but Biggs
requested to return to his jail cell. During the hearing, outside the presence of Biggs, the
superior court scheduled trial for July 30 and a pretrial hearing date for July 20.
Zachary Biggs attended the next pretrial hearing on July 20, 2015. At that hearing,
defense counsel John Fay mentioned that trial would be before the court, rather than a
jury. Biggs did not object to the comment.
Trial commenced on July 30, 2015, before Asotin County Superior Court Judge
Scott Gallina. At the beginning of the trial, the trial court commented that the trial would
be a bench trial. Defense counsel John Fay responded that Zachary Biggs had signed a
jury waiver. Zachary Biggs did not object.
Zachary Biggs defended the rape charges on the ground that Stacey engaged in
consensual sex and lied about a rape. During trial, Deputy Jeff Pollilo testified to the
conversation he had with Zachary Biggs in jail. His testimony suggested that Biggs
suffered from a mental illness. Polillo averred that Biggs insisted that he and Stacey
engaged in consensual sex initiated by Stacey on the day for which the State brought
charges.
During trial, the court admitted letters written by Zachary Biggs to various
individuals. The State argued that the letters attempted to influence witnesses such that
10 No. 37306-1-III In re Personal Restraint of Zachary Biggs
Biggs engaged in witness tampering. Biggs addressed one letter to Eugene “Geno”
Grende. The letter instructed Grende that “now would be the time to have people to run
into [Stacey] or talk to her.” RP at 152. Trial testimony pictured Grende with a
reputation for being a bully who physically assaulted people. According to a bates stamp
on the letter, the State disclosed a copy of the letter to defense counsel on February 5,
2015. Defense counsel, during trial, did not complain that the State failed to earlier send
him a copy of the letter.
The superior court convicted Zachary Biggs on all three counts. During
sentencing, the trial court ruled the two counts of rape to be distinct acts of criminal
conduct and ordered the sentences for the two counts of rape to run consecutively
pursuant to RCW 9.94A.589(1)(b). The trial court distinguished the assault on the hard
floor from the assault later on the bed. According to the trial court, Zachary Biggs, after
releasing Stacey from the floor, possessed the opportunity to end his attack, but renewed
the assault on the bed. The trial court sentenced Biggs to 309 months’ confinement.
This court affirmed the convictions and sentence, but remanded to reconsider
discretionary legal financial obligations. The Washington State Supreme Court denied
review on October 3, 2018. The appellate mandate issued October 16, 2018. On
February 5, 2019, the trial court struck the discretionary legal financial obligations from
Zachary Biggs’ judgment and sentence. Concurrently, Biggs also sought review in the
11 No. 37306-1-III In re Personal Restraint of Zachary Biggs
United States Supreme Court. The United States Supreme Court denied certiorari on May
28, 2019.
On October 3, 2019, Zachary Biggs filed a pro se CrR 7.8 motion in superior court.
The motion raised many claims for relief, including ineffective assistance of counsel,
Brady violations, prosecutorial misconduct, judicial bias, and other claims. After
considering the motion and the State’s response, the superior court transferred the motion
to this court for consideration as a personal restraint petition under CrR 7.8(c)(2). This
court subsequently remanded the matter for two reference hearings.
In support of his personal restraint petition, Zachary Biggs filed a 2019 letter from
the Asotin County Sheriff’s Office responding to a public records request from him.
Biggs requested any records pertaining to a law library in the Asotin County Jail between
2013 and 2015. The Sheriff’s Office responded that it had no responsive records.
In support of his petition, Zachary Biggs also filed a printout of a news article
about Richard Laws being sentenced for tampering with evidence. Laws was the
supervising attorney for John Fay, Biggs’ trial attorney. In 2018, two years after Biggs’
trial, Laws tampered with a witness. The Washington Supreme Court disbarred Laws.
John Furbee submitted a declaration in support of Zachary Biggs’ personal restraint
petition. Furbee declared that he saw, between 7:30 p.m. and 9:30 p.m. on December 10,
2013, the date of the alleged rape, Biggs, Stacey, and their children arrive in a car, from
which Biggs exited. All appeared in a good mood. Nothing suggested a violent rape or
12 No. 37306-1-III In re Personal Restraint of Zachary Biggs
an argument had occurred earlier in the evening. Furbee also characterized Stacey as a
dishonest, master manipulator and a chronic methamphetamine user. Furbee avowed that
he did not disclose this information at trial because John Fay, Biggs’ trial counsel, failed
to ask the right questions. Furbee added that no defense investigator interviewed him. In
his declaration, Furbee recounted an incident in 2017, after the trial, when he overheard
Stacey Biggs deny ever telling her coworkers she had been raped.
Christopher Rose submitted a declaration in support of Zachary Biggs’ personal
restraint petition. Rose declared that he was also present on the evening of the rape and
observed the same happy individuals Furbee listed in his declaration. Rose declared that
no attorney or investigator interviewed him before trial.
Zachary Biggs’ sister, Athena Biggs, also submitted a declaration. Athena
declared that no one from the defense interviewed her before trial or prepared her for trial.
Athena accused Stacey of being a liar. Athena claimed to have spoken to Stacey on
December 12, 2013, two days after the rape, and Stacey admitted to telling her coworker a
“‘story.’” Stacey cooperated with the law enforcement investigation because officers
directed anger at her for visiting Biggs when a no contact order was in place. During that
same conversation Stacey also told Athena:
Stacey told me that tender embraces led to sex, and that she never said anything to Zack about stopping. To the contrary, she described in great detail the intense love making that evening, including with her on top. She said she had never made love like that before, and that it was “the best sex [she had] ever had.” She spoke of their love and confirmed she was a willing participant at all times.
13 No. 37306-1-III In re Personal Restraint of Zachary Biggs
Personal Restraint Petition (PRP), Exhibit 5 at 4. (Alteration in original).
In her declaration, Athena Biggs avowed she conversed with Asotin County Sheriff
Detective Jackie Nichols, during which Nichols confirmed that Stacey had reported to her
the same account of consensual sex. According to Athena, Nichols added that the State
charged Biggs “so Zack could get psychological testing and ‘help.’” PRP, Exhibit 5 at 5.
Athena’s declaration also alleged, without any detail, that Detective Nichols’ report of her
interview with Athena contained fabricated statements that Athena had uttered to Nichols.
With respect to a joint interview with the prosecution and defense, Athena Biggs
declared:
Soon after the meeting began, [Prosecuting Attorney] Mr. Nichols effectively kicked Mr. Fay out of the room, saying he was needed in court immediately. Mr. Fay was absent for most of the meeting. Immediately upon his leaving, the other parties, all seeking conviction, “ganged up” on me. . . . Nevertheless, [Deputy Prosecuting Attorney] Mr. Liedkie aggressively interrogated me. He was loud and forceful, leaning into the table and trying to force me into confirming inaccurate facts—false facts that could only have come from Stacey. His tactics were infuriating; isolated and shaking, I adamantly refused his asserted statements as they were simply untrue. Finally, driven to tears, like clockwork Susan appeared and ushered me away just after I heard Kurt Liedkie proclaim “We are done here”; I got the distinct impression they had employed these tactics many times before. I was simply trying to get some truth into the case, but the “professionals” weren’t having it.
PRP, Exhibit 5 at 6-7.
Athena Biggs also reported, in her declaration, a conversation with John Fay.
According to Athena, Fay conceded that “he was uncomfortable about exploring the issue
14 No. 37306-1-III In re Personal Restraint of Zachary Biggs
of voluntary sex, even though this was a rape case and Stacey had professed how much
she enjoyed it; He actually called any such defense ‘inappropriate.’” PRP, Exhibit 5 at 8.
Darci Brown submitted a declaration in support of Zachary Biggs’ personal
restraint petition. Brown declared that, in a conversation with Stacey Biggs a day or two
after the rape, Stacey recanted her prior allegation of rape by Biggs. Brown insisted that
she never testified at trial to the recantation because defense counsel never interviewed
her and did not know to ask the right questions.
Zachary Biggs filed a declaration from witness Cheryl Biggs. Cheryl Biggs
described incidents of Stacey being dishonest, including Stacey fabricating that her
daughter was raped by another individual, collecting welfare benefits in two states
simultaneously, and inventing domestic violence allegations against Biggs in order to get
free hotel rooms from the YWCA. Cheryl Biggs also averred that Biggs did not rape
Stacey. Cheryl claimed that Stacey wanted an excuse to give her coworkers for missing
work for three days while enjoying a methamphetamine binge.
Christopher Perini signed a declaration, in which he avowed that he overheard,
near the time of the rape, that Stacey would retaliate against Biggs for leaving her. Perini
added that Stacey did not “behave remotely like a victim” after the rape, her law
enforcement interview was “heavily coached by the interviewers,” and after trial he heard
her say that Biggs received his just reward for cheating with other women. PRP, Exhibit
9 at 2.
15 No. 37306-1-III In re Personal Restraint of Zachary Biggs
Zachary Biggs submitted an Asotin County Sheriff’s Office letter denying a public
records request from him. Biggs had requested records concerning Deputy Jeff Polillo’s
termination. The sheriff responded that he could not produce the records due to a
temporary restraining order entered in a lawsuit filed by Polillo against the Sheriff’s
Office. The responding letter attached a copy of the order.
Zachary Biggs also submitted a second letter from the Asotin County Sheriff’s
Office responding to another public records request from him that sought records relating
to mail to and from him during his pretrial incarceration. The response to the request
included a draft substitute plea agreement, the letter from Biggs to Eugene “Geno”
Grende, and a cover letter from the prosecutor’s office showing it forwarded the Geno
Grende letter to defense counsel on February 5, 2015, six months prior to trial. Under the
substitute plea agreement, Biggs would have pled guilty to reduced charges of indecent
liberties with forcible compulsion and assault in the second degree with a deadly weapon
enhancement. The State would have recommended a 95-month prison term and Biggs
would have reserved the right to request a SSOSA. According to Biggs, he would have
accepted this plea agreement had his lawyer advised him of his standard range.
Zachary Biggs filed a declaration that recounted Stacey’s drug history. He
declared Stacey initiated the sexual interaction while “high and horny” and because “she
loved it.” PRP, Exhibit 8 at 3. Biggs also faulted his lawyer for discouraging him from
testifying.
16 No. 37306-1-III In re Personal Restraint of Zachary Biggs
On May 14, 2020, this court issued an order remanding the petition for a reference
hearing. The order limited the hearing to two subject matters: newly discovered evidence
and ineffective assistance of trial counsel. The alleged newly discovered evidence
involved sworn declarations from multiple witnesses testifying to having heard the victim
recant and newly discovered impeachment evidence. Zachary Biggs’ ineffective
assistance claim pertained to counsel’s alleged failure to interview witnesses before trial.
The superior court conducted the reference hearing on November 3, 4 and
December 23, 2020. At the start of the hearing, defense counsel attempted to raise new
claims of ineffective assistance of trial counsel that this court did not list in the reference
hearing order. The trial court interpreted this court’s order to limit the questions to
answer and ruled that it would exclude argument and evidence directed at the new claims.
During the reference hearing, the superior court took testimony from Zachary
Biggs’ mother and sister, witness John Furbee, trial counsel John Fay, Biggs, and Asotin
County’s former victim-witness coordinator. At the conclusion of the hearing, the trial
court issued 74 findings of fact and detailed conclusions of law answering this court’s six
questions. The court concluded that Biggs failed to forward newly-discovered
recantation evidence in part because the declarants testified to the retractions at trial. The
court further concluded that evidence that Biggs argued counsel should have presented at
trial was inadmissible and the only admissible evidence that counsel failed to present was
cumulative and the result of a strategic decision.
17 No. 37306-1-III In re Personal Restraint of Zachary Biggs
On return to this court, the State filed a supplemental response brief. Zachary
Biggs’ petition counsel also filed a supplemental reply brief in this court. In his
supplemental reply brief, Biggs requested remand for a second reference hearing to
address three additional ineffective assistance claims. Biggs asserted that his trial
counsel engaged in ineffective assistance by: allegedly waiving his right to a jury trial,
misadvising him of the consequences of proceeding to trial versus pleading guilty, and
interviewing witnesses in the prosecutor’s office. Pet’r 1st Supp. Br. at 11-15.
On July 13, 2021, this court issued an order remanding the personal restraint
petition for a second reference hearing. The order directed the superior court to address
five additional claims of ineffective assistance not included in the first reference hearing
order and not part of the original petition. The order, paraphrased and summarized,
instructed the court to answer:
1. Did Mr. Fay’s [trial counsel’s] discomfort with discussing sexual intercourse impede presentation of Mr. Biggs’s defense of consent, resulting in deficient examination of witnesses? 2. Did Mr. Fay provide deficient performance in advising Mr. Biggs to waive his right to a jury trial? 3. Did Mr. Fay provide deficient performance by not requesting a different trial judge after Judge Gallina had already accepted Mr. Biggs’s guilty plea? 4. Did Mr. Fay provide deficient performance by failing to adequately advise Mr. Biggs of the consequence of pleading guilty versus going to trial? 5. Did Mr. Fay provide deficient performance by not interviewing the law enforcement officers prior to trial?
18 No. 37306-1-III In re Personal Restraint of Zachary Biggs
Zachary Biggs had asked that the superior court answer questions two and four in a
second reference hearing. Biggs did not expressly ask exploration of issues one and five,
but he mentioned these topics in the facts section of his supplemental brief. This court
raised on its own question three.
A different judge entertained the second reference hearing over three days in the
fall and winter of 2021. The State objected to the second reference hearing on the ground
that each issue did not survive the personal restraint petition time bar. The reference
hearing judge noted the State’s objection, but ruled that this court would later address the
time bar. The hearing proceeded with Zachary Biggs and his trial counsel both testifying.
The second reference hearing focused on John Fay’s inexperience. At the time Fay
represented Zachary Biggs he had not engaged in sexual intercourse for religious reasons.
As a result, Fay was “very disconcert[ed]” by the way Biggs talked about the sexual
encounter with his former wife. Fay believed that his discomfort probably affected the
questions he asked during interviews and at trial. RP, Reference Hearing 2 (RH2) at 58.
In hindsight, Fay questioned his competency to represent Biggs at that time. At the time
of trial, however, Fay believed he had “a solid case and strategy.” At the reference
hearing attorney Fay still believed he “adequately [re]presented [his] theory of the case.”
RP, RH2 at 217.
According to John Fay, during pretrial interviews and at trial, he declined to
question about past incidents of consensual intercourse between Stacey and Zachary
19 No. 37306-1-III In re Personal Restraint of Zachary Biggs
Biggs, contrary to Biggs’ wishes. Fay refrained from asking about earlier sexual
encounters on the belief that the rape shield statute applied and because the State had
threatened in conversations to add another rape count if Biggs wished to introduce at trial
evidence of past sexual experiences. Fay experienced discomfort in speaking about sex in
front of jurors. This discomfort extended to Biggs’ use of a machete allegedly as a prop
for his sexual arousal.
According to John Fay, he counselled Zachary Biggs to waive a jury. Fay believed
that a judge would experience less shock by the facts of the case. Fay also viewed Judge
Scott Gallina as a favorable trier of fact. Fay knew of multiple serious violent cases
wherein Judge Gallina had acquitted defendants or convicted them of lesser-included
offenses. Fay also held concern about Biggs being questioned about earlier convictions if
he testified. According to Fay, he also counselled Biggs not to testify at trial because
Biggs would perform as a poor witness and alienate the trier of fact.
On January 26, 2022, the superior court entered detailed findings of fact and
conclusions of law addressing each of this court’s questions. The findings read in part:
1. Mr. Fay adequately pursued Mr. Biggs’s defense of consent. Mr. Fay’s decision to not aggressively cross-examine the victim was sound strategy to avoid alienating the trier of fact and to encourage openness from Stacey; and that presenting a more detailed version of the rape/sexual intercourse probably would have alienated and offended the trier of fact, especially in light of Mr. Biggs’s “gleeful and aggressive” demeanor when testifying at the reference hearing to the violent portion of the intercourse. 2. Mr. Fay’s recommendation to waive a jury trial and proceed with a bench trial was sound strategy given the defense bar’s favorable record in front of Judge Gallina, the case subject matter, and Mr. Biggs’s
20 No. 37306-1-III In re Personal Restraint of Zachary Biggs
demonstrated inability to comprehend how his testimony would be perceived by a lay juror, including the potential that his testimony could “offend[] or repulse[]” a lay juror who is less likely to be able to set aside their emotions than a judge. 3. Mr. Fay’s decision to not seek a trial in front of another judge was also a sound strategy in light of Mr. Fay’s knowledge of Judge Gallina when weighed against the possibility of proceeding with an unknown judge who might not be as favorable. 4. Mr. Fay provided deficient performance when he affirmatively misadvised Mr. Biggs concerning the sentence he faced by going to trial; Mr. Biggs was prejudiced because he, more likely than not, would have accepted the second plea deal had he been correctly advised. 5. Mr. Fay’s general strategy of not interviewing law enforcement witnesses is a questionable strategy, but in this instance, there were good reasons to not interview the involved officers prior to trial due to their minimal involvement and the potential with one of the officers that an interview could have harmed Mr. Biggs’s case by alerting that officer to an issue that he could have then corrected prior to trial.
See generally 2nd Ref. Hrg. FF/CL.
LAW AND ANALYSIS
Zachary Biggs’ personal restraint petition asserts numerous grounds for relief. We
list them in order presented by Biggs:
1. Lack of law library access
2. Ineffective assistance of counsel by Noel Pitner
3. Ineffective assistance by Richard Laws
4. Appearance of fairness regarding Judge Gallina
5. Victim’s inconsistent statements made to Deputy McGowan
6. “Omission” of a second plea agreement
7. Law enforcement officers lack of credibility
21 No. 37306-1-III In re Personal Restraint of Zachary Biggs
8. Right to be present at trial setting hearing on July 6, 2015
9. Withholding of “Geno” Grende letter
10. Ineffective assistance by John Fay when setting Biggs’ case for a bench trial
11. Ineffective assistance by Fay when misadvising Biggs of the risks of going to
trial versus accepting the State’s revised plea offer
12. Ineffective assistance by Fay when conducting joint interviews with the
prosecutor.
13. Ineffective assistance by Fay in not adequately presenting a consent defense
14. Ineffective assistance by Fay when advising Biggs to not testify
15. Ineffective assistance by Fay when counseling Biggs to waive his right to a
jury trial
16. Ineffective assistance by Fay when not requesting a different judge preside
over the bench trial following withdrawal of the guilty plea
18. Ineffective assistance by not interviewing law enforcement witnesses
19. Cumulative error
After Zachary Biggs filed his personal restraint petition pro se and the court
appointed counsel for Biggs, Biggs’ counsel raised claims 10, 11, and 12 in a
supplemental brief. This court posed contentions 13 to 18 after the first reference hearing.
In turn, the State asserts that time bars claims 10 to 18. Some of Zachary Biggs’ assigned
errors overlap. We review together some of the arguments.
22 No. 37306-1-III In re Personal Restraint of Zachary Biggs
After reviewing the standard of review for a personal restraint petition, we first
discuss the State’s assertion of the time bar. We conclude that time bars claims 10
through 18. Therefore, we do not address the merits of the contentions.
PRP Standard of Review
To obtain relief in a personal restraint petition, Zachary Biggs must show actual
and substantial prejudice resulting from alleged constitutional errors or for alleged
nonconstitutional errors a fundamental defect that inherently results in a complete
miscarriage of justice. In re Personal Restraint of Cook, 114 Wn.2d 802, 813, 792 P.2d
506 (1990). As to ineffective assistance of counsel claims, this court applies the same
standard as it does on direct appeal. In re Personal Restraint of Lui, 188 Wn.2d 525, 538,
397 P.3d 90 (2017). Zachary Biggs has the burden of showing his counsel’s performance
fell below an objective standard of reasonableness and a reasonable probability that but
for counsel’s deficient performance the result would have been different. Strickland v.
Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The
petitioner bears the burden to show deficient representation. State v. Classen, 4 Wn. App.
2d 520, 535, 422 P.3d 489 (2018). We need not consider both prongs of Strickland if a
petitioner fails on one. In re Personal Restraint of Crace, 174 Wn.2d 835, 848, 280 P.3d
1102 (2012).
The law distinguishes between ineffective assistance of counsel and deprivation of
counsel. With respect to a claim of deprivation of counsel, this court applies the Cronic
23 No. 37306-1-III In re Personal Restraint of Zachary Biggs
standard from United States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657
(1984). Cronic, decided the same day as Strickland, governs total and near-total
deprivations of counsel—situations when counsel functions only as “a warm body with a
bar card.” State v. Anderson, 19 Wn. App. 2d 556, 562, 497 P.3d 880 (2021), review
denied 199 Wn.2d 1004, 504 P.3d 832 (2022). These situations include (1) denial of
counsel at a critical stage of proceedings, (2) when counsel entirely fails to subject the
prosecution’s case to meaningful adversarial testing, and (3) when counsel acts under
conditions that even competent counsel could not render effective assistance, such as
insufficient time to prepare for trial. Bell v. Cone, 535 U.S. 685, 695-96, 122 S. Ct. 1843,
152 L. Ed. 2d 914 (2002).
On direct appeal, we deem Cronic violations per se prejudicial. On collateral
attack, the burden shifts and the petitioner must prove actual and substantial prejudice. In
re Personal Restraint of St. Pierre, 118 Wn.2d 321, 328, 823 P.2d 492 (1992). Recently
our Supreme Court reaffirmed St. Pierre and held that public trial violations, which are
considered structural error on direct appeal, require proof of actual and substantial
prejudice when raised for the first time in a personal restraint petition. In re Personal
Restraint of Rhem, 188 Wn.2d 321, 329-30, 394 P.3d 367 (2017). The one exception to
this rule is when the petitioner raises the error within the framework of ineffective
assistance of appellate counsel. In re Personal Restraint of Orange, 152 Wn.2d 795, 804,
814, 100 P.3d 291 (2004).
24 No. 37306-1-III In re Personal Restraint of Zachary Biggs
To avoid dismissal, the petitioner must support claims with facts and not merely
bald or conclusory allegations. In re Personal Restraint of Cook, 114 Wn.2d 802, 813-14
(1990). The supporting evidence must be based on “more than speculation, conjecture, or
inadmissible hearsay,” and failure to meet this standard requires dismissal of the petition.
In re Personal Restraint of Rice, 118 Wn.2d 876, 886, 828 P.2d 1086 (1992). This court
will dismiss a petition if it fails to present an arguable basis for relief in law or in fact,
given the constraints of the personal restraint petition vehicle. In re Personal Restraint of
Khan, 184 Wn.2d 679, 686-87, 363 P.3d 577 (2015) (plurality opinion).
Time Bar
Zachary Biggs largely ignores the potential of the time bar other than to argue that
this court must have deemed claims 10 through 18 timely because we requested a second
reference hearing to address questions arising from the issues. We disagree. At that time,
we had issued no ruling as to any limitation period. We even removed language from the
first reference hearing order concerning the time bar.
We must first discern when the one-year limitation period commenced. The
United States Supreme Court denied certiorari of Zachary Biggs’ direct appeal on May
28, 2019. Pursuant to RCW 10.73.090(3)(c), Biggs’ convictions and sentence became
final for time-bar purposes on May 28, 2020. Thus, to receive consideration on collateral
attack, Biggs needed to assert discrete claims by May 28, 2020. RCW 10.73.090(1).
25 No. 37306-1-III In re Personal Restraint of Zachary Biggs
Reference hearing counsel did not appear before May 28, 2020 and did not file the
supplemental brief that raised new arguments until thereafter.
RCW 10.73.100 lists six exceptions to the personal restraint petition time
restriction. Ineffective assistance claims do not fit within any exception to the time bar.
In re Personal Restraint of Adams, 178 Wn.2d 417, 426, 309 P.3d 451 (2013); In re
Personal Restraint of Stoudmire, 141 Wn.2d 342, 349, 5 P.3d 1240 (2000). Biggs
grounds claims 10 through 18 on ineffective assistance of counsel.
Zachary Biggs’ timely filing of his initial petition does not render later claims
timely. An amended personal restraint petition does not relate back to the original filing,
and any amendment or new claim must be timely raised. In re Personal Restraint of
Haghighi, 178 Wn.2d 435, 446, 309 P.3d 459 (2013).
Law Library
Zachary Biggs contends that Asotin County interfered with his right to access law
library materials while awaiting trial. We agree that RCW 27.24.010 requires each
county to maintain a law library. Also, an incarceree enjoys a federal constitutional right
of access to the courts, which may require prison facilities to provide inmates with access
to adequate law libraries, particularly when the incareree lacks legal counsel. Lewis v.
Casey, 518 U.S. 343, 346, 116 S. Ct. 2174, 135 L. Ed. 2d 606 (1996); Bounds v. Smith,
430 U.S. 817, 828, 97 S. Ct. 1491, 52 L. Ed. 2d 72 (1977).
26 No. 37306-1-III In re Personal Restraint of Zachary Biggs
We reject this assignment of error for two reasons. First, Zachary Biggs does not
present any evidence to prove that Asotin County lacks a law library or that jail officials
denied him access to the library. Biggs presents a public records response from the jail
stating that the jail does not have a law library. But, RCW 27.24.010 does not require the
county law library to be maintained in the jail.
Second, Zachary Biggs does not show any prejudice from an alleged lack of a
library. To repeat, a personal restraint petitioner must show prejudice. In re Personal
Restraint of Cook, 114 Wn.2d 802, 813 (1990).
Noel Pitner Assistance
Zachary Biggs contends that his first counsel, Noel Pitner, provided ineffective
assistance of trial counsel. Biggs performed few services before Biggs procured his
removal and began to represent himself with John Fay as stand-by counsel. In 2018, the
State of Washington suspended Pitner for two years from practicing law. The misconduct
occurred after his representation of Biggs.
Zachary Biggs claims Noel Pitner performed deficiently because he failed to meet
with Biggs in the jail, missed multiple court hearings, and lied to Biggs. Biggs shows no
prejudice resulting from any ineffective assistance. In re Personal Restraint of Crace,
174 Wn.2d 835, 848 (2012). Therefore, we reject this claim.
27 No. 37306-1-III In re Personal Restraint of Zachary Biggs
Richard Laws Assistance
Zachary Biggs next contends that counsel Richard Laws performed ineffectively.
Laws supervised trial attorney John Fay. Biggs emphasizes that Washington State
disbarred Richard Laws in 2018. The disbarment resulted from conduct occurring after
and unrelated to Laws’ services on behalf of Biggs. Biggs shows no prejudice related to
the disbarment. In re Personal Restraint of Crace, 174 Wn.2d 835, 848 (2012).
Zachary Biggs complains that the only supervision provided by Richard Laws to
John Fay occurred when Laws spoke in court to address the case schedule. He does not
otherwise specify how Laws failed to properly supervise Fay.
To repeat, when a lawyer, such as John Fay, lacks the minimum experience
requirements of SID 14.2, the lawyer may associate with another lawyer who meets these
qualifications: “Attorneys working toward qualification for a particular category of cases
under this standard may associate with lead counsel who is qualified under this standard
for that category of cases.” SID 14.2 n.1. This standard further reads that an unqualified
lawyer may represent a client in a sex offense prosecution if the lawyer is “supervised by
or consult[s] with an attorney who has experience representing juveniles or adults in sex
offense cases.” SID 14.2(D)(ii).
The SID standards do not identify actions or involvement that the supervising
attorney must undertake. The standards do not state that the lawyer must meet with the
client, appear at hearings, or act as first chair at trial. Because the standards do not
28 No. 37306-1-III In re Personal Restraint of Zachary Biggs
mandate any particular level of involvement, we reject the SID as a basis for a claim of
ineffective assistance.
The United State Supreme Court has held that a particular lawyer’s youth or
inexperience does not undermine the presumption of effective assistance of counsel:
That conclusion is not undermined by the fact that respondent’s lawyer was young, that his principal practice was in real estate, or that this was his first jury trial. Every experienced criminal defense attorney once tried his first criminal case. . . . The character of a particular lawyer’s experience may shed light in an evaluation of his actual performance, but it does not justify a presumption of ineffectiveness in the absence of such an evaluation.
United States v. Cronic, 466 U.S. 648, 665 (1984). An ineffective assistance of counsel
assertion focuses on counsel’s conduct, not counsel’s inexperience. Zachary Biggs
provides no case law that suggests the adoption of the SID changed this focus.
We also reject any claim that Richard Laws’ inaction or failure to supervise
supports a complete deprivation of counsel theory. Fay actively represented Zachary
Biggs during the time leading to trial and during trial.
In State v. Flores, 197 Wn. App. 1, 386 P.3d 298 (2016), this court rejected a claim
that a lawyer’s failure to satisfy the indigent defense standards results in a deprivation of
counsel under Cronic. The State charged Johnathon Flores with a Class A felony. His
trial counsel lacked the requisite years of service under the SID. On appeal, Flores argued
that counsel did not qualify as counsel for purposes of meeting the counsel requirement
under the Sixth Amendment because of the breach of the SID. In denying relief, we
29 No. 37306-1-III In re Personal Restraint of Zachary Biggs
observed that finding a violation for failure to comply with the SID made little sense since
the standards only apply to appointed defense counsel, not all defense counsel. No
standards or guidelines require retained counsel to carry any minimum experience. The
law allows a retained lawyer to represent an accused in a capital murder case the day the
lawyer gains his or her law license.
Judge Gallina Conviction
Judge Scott Gallina, during 2015, presided over the pretrial proceedings and bench
trial of Zachary Biggs. In 2019, the State of Washington charged Gallina with second
degree rape, four counts of sexual assault, and indecent liberties. The charges against
Gallina related to conduct as early as 2014. In 2022, Gallina pled guilty to one count of
third degree sexual assault and one count of fourth degree sexual assault. The State
dismissed the remaining charges.
Zachary Biggs argues that Judge Scott Gallina’s conviction retroactively
disqualified him from hearing his prosecution particularly since Gallina’s convictions
were also for sex crimes. Biggs asserts that the exceptional sentence imposed on him by
Judge Gallina illustrates that Gallina sought to hide his own guilt.
Zachary Biggs cites no legal authority to support his contention that Judge Scott
Gallina’s conviction voids Biggs’ judgment and sentence. His argument is factually
wrong also. Judge Gallina did not impose an exceptional sentence. RCW 9.94A.589(b)
30 No. 37306-1-III In re Personal Restraint of Zachary Biggs
demanded that the trial court run Biggs’ two convictions consecutive. Gallina imposed a
low-end standard range sentence.
In State v. Williams, 15 Wn. App. 2d 841, 480 P.3d 1145 (2020), this court
addressed whether Judge Scott Gallina’s criminal activity violated appearance of fairness
principles. At that time, Judge Gallina had been charged, but not convicted, of any crime.
We wrote that even if Judge Gallina was later convicted:
Allegations against Judge Gallina that were unforeseen when [the defendant] was tried and sentenced do not undermine a fundamental underpinning of the judge’s verdict and sentence in Mr. Williams’s case.
State v. Williams, 15 Wn. App. 2d at 848.
Zachary Biggs cites to several cases for general principles of due process and
appearance of fairness: Liljerberg v. Health Services Corp., 486 U.S. 847, 108 S. Ct.
2194, 100 L. Ed. 2d 855 (1988); Haupt v. Dillard, 17 F.3d 285 (9th Cir. 1994); Tatham v.
Rogers, 170 Wn. App. 76, 283 P. 3d 583 (2012); State v. Bilal, 77 Wn. App. 720, 893 P.
2d 674 (1992). None of the decisions undercut this court’s analysis in State v. Williams.
In State v. Bilal, the defendant physically assaulted the judge presiding over his
case. In Tatham v. Rogers, the judge failed to disclose to the parties that Tatham’s
counsel had been his former law partner, had managed the judge’s campaign, had assisted
the judge when the judge was arrested for driving while intoxicated, and held other close
personal ties to the judge. In Liljerberg v. Health Services Corp., the judge sat on the
board of a university that was a party to the litigation. In Haupt v. Dillard, defense
31 No. 37306-1-III In re Personal Restraint of Zachary Biggs
counsel bullied the judge into ruling for the defense. In each decision, the judge
possessed a disqualifying tie to one of the litigants or their lawyer. Judge Scott Gallina
held no personal connection to Zachary Biggs.
Impeachment Evidence
Zachary Biggs asserts that the State withheld and his trial counsel failed to elicit
from Deputy Michael McGowan impeachment evidence concerning Stacey Biggs.
According to Biggs, Stacey presented conflicting statements to McGowan during an
interview. Neither the State nor defense counsel informed the court of these
inconsistencies in part because neither party called Deputy McGowan to testify. Biggs
asserts that the State breached its duty to disclose relevant information and his counsel
performed ineffectively.
Zachary Biggs does not identify any inconsistencies in the statement given by
Stacey Biggs to Deputy Michael McGowan. To repeat, the petitioner must support claims
with facts and not merely bald or conclusory allegations. In re Personal Restraint of
Cook, 114 Wn.2d 802, 813 (1990). This court will not scour the record to find support for
the petitioner’s bald assertions. In re Disciplinary Proceedings Against Whitney, 155
Wn.2d 451, 467, 120 P.3d 550 (2005); In re Estate of Lint, 135 Wn.2d 518, 532, 957 P.2d
755 (1998).
32 No. 37306-1-III In re Personal Restraint of Zachary Biggs
Second Plea Offer
Zachary Biggs next contends that the deputy prosecutor engaged in misconduct by
denying the existence of a second plea agreement. According to Biggs, after he withdrew
his guilty plea to second degree rape, the prosecutor informed the trial court that he would
allow Biggs to plead guilty to substitute charges that would be SSOSA eligible.
Nevertheless, the State never offered an updated plea agreement. Biggs accuses the
prosecutor of lying to the court and his counsel as being ineffective for failing to procure
the other plea agreement. According to Biggs, he suffered prejudice because he was
denied the opportunity to accept the updated plea agreement. The State responds that it
offered an updated plea agreement, but Biggs rejected the offer. Testimony by Zachary
Biggs and John Fay, during the reference hearing, confirms the State’s position.
Law Enforcement Credibility
Zachary Biggs complains that two of the State’s witnesses, Sheriff Deputy Jeff
Polillo and Detective Jackie Nichols, lacked credibility. According to Biggs, the Asotin
County sheriff fired Deputy Polillo for misconduct in 2016. Detective Jackie Nichols
carried a conflict of interest because of marriage to the elected prosecutor. Biggs may
relate this assertion to an argument that the State failed to disclose this information or that
his trial counsel performed ineffectively by either not garnering the information or failing
to cross-examine the witnesses at trial on the impeaching facts.
33 No. 37306-1-III In re Personal Restraint of Zachary Biggs
The State responds that the Asotin County sheriff fired Deputy Jeff Polillo one year
after Zachary Biggs’ trial for conduct that occurred after Biggs’ trial. According to the
State, Detective Nichols’ relationship to the Asotin County Prosecuting attorney created
no conflict because Detective Nichols assisted the prosecution.
We reject Zachary Biggs’ contention regarding Sheriff Deputy Jeff Polillo because
any impeaching information related to conduct after Biggs’ trial. Also, Biggs shows no
prejudice from Polillo’s testimony. If anything, Deputy Polillo’s testimony showed him
to suffer from mental illness and confirmed his insistence of innocence.
We reject Zachary Biggs’ contention with regard to Detective Jackie Nichols
because of the lack of a conflict of interest. Biggs submits no legal authority suggesting a
conflict of interest. Issues not supported by argument and citation to authority will not be
considered on appeal. State v. Farmer, 116 Wn.2d 414, 432, 805 P.2d 200, 812 P.2d 858
(1991).
Right to Presence in Courtroom
Zachary Biggs contends the trial court conducted a hearing, outside his presence
on July 6, 2015. According to the July 6 transcript, a jail official informed the court that
Biggs refused to appear in court that day. Biggs, without any testimony under oath,
asserts that the jail official lied. In his petition, he asserts that other prisoners were then
harassing him in the holding cell. He supplies no details of the harassers or the nature of
the harassment. He claims prejudice because his absence prevented him from rescinding
34 No. 37306-1-III In re Personal Restraint of Zachary Biggs
his jury waiver. He does not explain why he could not have rescinded the waiver on
another day.
The State responds that Zachary Biggs presented no evidence to contradict the
hearing transcript’s recording that he refused to come to court on July 6, 2015. Also,
Biggs possessed the opportunity to rescind his jury waiver at a hearing, to which he
attended, on July 20, 2015. At the beginning of trial, Biggs did not complain about a
bench trial.
We add that Zachary Biggs’ argument presupposes a constitutional right to be
present at the July 6 hearing. The Sixth and Fourteenth Amendments to the United States
Constitution provide criminal defendants with a fundamental right to be present at all
critical stages of pretrial and trial. State v. Irby, 170 Wn.2d 874, 880-81, 246 P.3d 796
(2011). This right does not extend to every hearing. State v. Irby, 170 Wn.2d 874, 881
(2011). The constitutional right extends to whenever the accused’s presence has a
relation, reasonably substantial, to the fullness of his opportunity to defend against the
charge. Snyder v. Massachusetts, 291 U.S. 97, 54 S. Ct. 330, 78 L. Ed. 674 (1934),
overruled on other grounds by Malloy v. Hogan, 378 U.S. 1, 84 S. Ct 1489, 12 L. Ed. 2d
653 (1964); In re Personal Restraint of Lord, 123 Wn.2d 296, 306, 868 P.2d 835 (1994).
A defendant lacks a right to be present when his or her presence would be useless, or the
benefit but a shadow. Snyder v. Massachusetts, 291 U.S. 97, 106-107(1934).
35 No. 37306-1-III In re Personal Restraint of Zachary Biggs
We give some examples. The accused holds no constitutional right to be present
when trial counsel withdraws due to ethical reasons. State v. Hernandez, 6 Wn. App. 2d
422, 429, 431 P.3d 126 (2018). The right does not extend to responding to a jury
question or on addressing strictly legal issues. United States v. Williams, 455 F.2d 361,
365 (9th Cir. 1972); State v. Wright, 18 Wn. App. 2d 725, 737-38, 492 P.3d 224 (2021),
review denied, 199 Wn.2d 1001, 501 P.3d 149 (2022); In re Personal Restraint of Lord,
123 Wn.2d 296, 306 (1994). Stated differently, the constitutional right applies only to a
hearing entailing resolution of disputed facts. In re Personal Restraint of Lord, 123
Wn.2d 296, 306 (1994).
Zachary Biggs carries the burden of supporting his claim by legal authority and to
show prejudice by reason of denial of any right. He cites no authority that he possessed a
right to be present during a trial setting. Since he sat in jail, the trial date lacked relevance
to his personal affairs. Although he claims that his trial counsel did not sufficiently
interview witnesses, he does not argue that a different trial date would have improved the
interviews.
Revival of Right to Jury Trial
Zachary Biggs argues that his withdrawal of his guilty plea voided his earlier
waiver of a jury trial. For support, Biggs cites State v. Bange, 170 Wn. App. 843, 285
P.3d 933 (2012). But, Bange and the cases relied on therein support the opposite
conclusion.
36 No. 37306-1-III In re Personal Restraint of Zachary Biggs
In State v. Bange, Candi Bange entered a written jury waiver. Before trial, the
superior court dismissed the case with prejudice due to State misconduct. The Court of
Appeals reversed, and, on remand, the prosecution proceeded to a bench trial based on
the prior jury waiver. Bange did not, on remand, object to a bench trial. When the Court
of Appeals reviewed the case again, we ruled that a jury waiver remains in effect until
successfully challenged, revoked, or expended on a trial.
The Court of Appeals, in State v. Bange, rested its holding on a discussion from
the Supreme Court in Wilson v. Horsley, 137 Wn.2d 500, 974 P.2d 316 (1999). Wilson
addressed whether a jury waiver carries over to a second trial when the first trial ends in a
mistrial. The Supreme Court held that the waiver expires after it is expended on a first
trial, even if that trial ends in a mistrial. In reaching that holding, the Supreme Court
distinguished the situation when an appellate court reverses a criminal conviction. In
such instance, the prosecution stands exactly as it stood before the trial.
In State v. Bange, this court also rejected the assertion that the trial court held a
duty to ask Candi Bange whether she still wanted a bench trial. This court noted that
Bange had not undergone trial before her appeal, the court had not ordered a retrial on
demand, Bange never challenged, before the superior court, her waiver, Bange did not
seek to revoke the waiver, and, at the commencement of trial, counsel represented that
Bange waived a jury and was ready to proceed to trial.
37 No. 37306-1-III In re Personal Restraint of Zachary Biggs
At the time that Zachary Biggs withdrew his guilty plea, the case had yet to
proceed to trial. Biggs never challenged his jury waiver after withdrawing his plea.
Letter to Geno Grende
While in jail, Zachary Biggs penned a letter to Geno Grende. The jail seized the
letter. At trial, the State confronted Biggs with the letter. In his personal restraint
petition, Biggs complains that the State did not let either him or his counsel know of the
seizure. The State caught defense counsel off guard with the presentation of the letter at
trial. Biggs argues that the State violated its obligation to disclose, in advance of trial,
evidence. The State answers that it provided the letter to defense counsel six months in
advance of trial. The State adds that the letter did not exculpate Biggs. The record
supports the State’s position.
In addition to lacking factual support, Zachary Biggs’ contention fails as a matter
of law. One might believe that the State should also disclose inculpatory information to
the defendant in advance of trial so that the defense could better prepare for trial.
Nevertheless, the duty to disclose applies to the wrongful withholding of “material
exculpatory evidence.” State v. Wittenbarger, 124 Wn.2d 467, 475, 880 P.2d 517 (1994).
The letter inculpated, not exculpated Biggs.
Counsel Investigation and Interviews
Zachary Biggs faults his trial counsel, John Fay, for failing to adequately
investigate the case and interview witnesses. We assume he references witnesses who
38 No. 37306-1-III In re Personal Restraint of Zachary Biggs
signed declarations attached to his personal restraint petition. Those witnesses include
John Furbee, Christopher Rose, Athena Biggs, Darci Brown, Cheryl Biggs, and
Christopher Perini. Biggs further criticizes counsel for leaving an interview of Stacey
Biggs before concluding the interview.
Zachary Biggs highlights that the State’s attorney falsely described, during trial,
Stacey Biggs as a fully functional, credible, and conscientious single mother. Biggs
characterizes Stacey as a lying, jealous, chronic methamphetamine abuser. According to
Biggs, if only defense counsel had interviewed Stacey sufficiently, counsel would have
discovered the true character of Stacey. If counsel had also adequately interviewed
witnesses listed for him by Biggs, counsel would have also gained information about
Stacey’s true personality.
Zachary Biggs did not call Stacey Biggs to testify at the reference hearing. The
reference hearing court did not deem Biggs’ witnesses’ testimony of Stacey’s character
credible. Therefore, Biggs shows no prejudice by reason of any failure to fully interview
or investigate. ER 608(a) and (b) would have precluded admission of most of the limited
new impeachment evidence. No witness may give an opinion on another witness’
credibility. State v. Carlson, 80 Wn. App. 116, 123, 906 P.2d 999 (1995).
Most of Zachary Biggs alleged new witnesses testified at trial. John Fay
interviewed John Furbee before trial. This court ordered the first reference hearing
principally because of John Furbee’s declaration that he overheard Stacey Biggs partially
39 No. 37306-1-III In re Personal Restraint of Zachary Biggs
recant. During the reference hearing, Furbee testified he never heard Stacey deny being
raped.
Christopher Rose, who observed Stacey Biggs after the rape, testified, in his
declaration, consistently to Stacey’s own testimony. John Fay interviewed Athena Biggs
before trial. Fay conducted a lengthy interview of Athena Biggs. The prosecutor did not
expel Fay from the interview.
Contrary to Darci Brown’s declaration, Attorney John Fay interviewed her. Brown
testified at trial consistently with her declaration about Stacey Biggs allegedly recanting
days after the alleged rape. Contrary to Cheryl Biggs’ declaration, John Fay also
interviewed her before trial. Cheryl would have testified that Stacey visited Zachary
Biggs despite a protection order. Nevertheless, Stacey admitted to this fact at trial.
Christopher Perini did not testify at the reference hearing. Perini possessed little
admissible evidence, all of which was cumulative.
Zachary Biggs’ petition does not explain what value a private investigator would
have brought to his defense. Bare allegations unsupported by citation of authority,
references to the record, or persuasive reasoning cannot sustain a restraint petitioner’s
burden of proof. In re Personal Restraint of Pheth, 20 Wn. App. 2d 326, 332, 502 P.3d
920 (2021). To repeat, John Fay interviewed witnesses other than Christopher Perini and
Christopher Rose. With respect to Perini, the reference hearing judge found that John Fay
exerted reasonable efforts to locate and interview him before trial. The reference hearing
40 No. 37306-1-III In re Personal Restraint of Zachary Biggs
judge found that Fay possessed no duty to interview Rose when Fay knew the substance
of his expected testimony, the testimony repeated other witnesses’ testimony, and the
testimony added minimal value in light of Rose’s impeachable criminal history. Biggs
assigns no error to these findings. An attorney does not perform ineffectively by failing to
interview a witness when counsel already knows the information held by the witness.
Eggleston v. United States, 798 F.2d 374, 376 (9th Cir. 1986).
The record contains no evidence showing that John Fay left Stacey Biggs’
interview early. The State’s recording device malfunctioned and only recorded fifteen
minutes of Stacey’s two-hour interview. Biggs does not complain about the recorder.
Also, he has no right to recorded witness interviews. State v. Mankin, 158 Wn. App. 111,
124, 241 P.3d 421 (2010). Biggs fails to specify the additional admissible information
Fay could have extracted in another interview.
Zachary Biggs claims John Fay’s deficiencies amounted to a deprivation of
counsel under Cronic. Because we conclude that Fay did not perform ineffectively, we
conclude that Biggs did not suffer complete deprivation of counsel.
Cumulative Error
Zachary Biggs seeks a new trial based on cumulative error. Because we find no
error, we find no cumulative error.
41 No. 37306-1-III In re Personal Restraint of Zachary Biggs
CONCLUSION
We dismiss Zachary Biggs’ personal restraint petition.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
_________________________________ Fearing, C.J.
WE CONCUR:
______________________________ Pennell, J.
______________________________ Staab, J.
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In the Matter of the Personal Restraint of: Zachary Joseph Biggs, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-the-matter-of-the-personal-restraint-of-zachary-joseph-biggs-washctapp-2023.