F|LED 5!6!2019 Court oprpea|s Division l State of Washington
IN THE COURT OF APPEALS OF THE STATE OF WASH|NGTON
ln the l\/latter of the Personal Restraint
Of NO. 74576-0-| l\/llCHAEL E. |\/IOCKOVAK, DlVlS|ON ONE Petitioner. UNPUBL|SHED OP|N|ON
FILED: I\/|ay 6, 2019
APPELVvch, C.J. -- ln 2011, a jury convicted l\/lockovak of attempted first degree murder, solicitation to commit first degree murder, first degree theft, and conspiracy to commit first degree theft. This court affirmed the convictions on direct appeal and later denied his personal restraint petition, ln this second petition, l\/lockovak argues that the State Withhe|d material exculpatory information about the citizenship status of its key Witness. And, he asserts that his trial counsel was ineffective Because the petition is untimely and no exception to the time bar exists, We deny his petition,
FACTS
ln 2011, a jury found l\/lichael l\/lockovak guilty of soliciting and attempting to murder his business partner, among other charges l\/lockovak’s convictions arose out of a joint federal-state investigation l\/lockovak v. King Ctv., No. 74459- 3-|, slip op. at 2 (Wash. Ct. App. Dec. 19, 2016) (unpublished),
http://www.courts.Wa.gov/opinions/pdf/744593.pdf. The joint investigation used a
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confidential informant named Danie| Kultin, a Russian emigrant and l\/lockovak’s employee l_d_. The King County Prosecuting Attorney (KCPA) and the United States Department of Justice agreed that the State should prosecute l\/lockovak under state law. l_d_. at 3.
This court affirmed the judgment and sentence on appeall and later denied his personal restraint petition (PRP). gt_._ at 2.
On November 20, 2013, shortly after the Supreme Court denied his petition y for review of this court’s decision in his direct appeal, l\/lockovak sent a Pub|ic Records Act1 (PRA) request to the KCPA. State v. l\/lockovak, 178 Wn.2d 1022, 312 P.3d 650 (2013). l\/lockovak sought all documents in the KCPA’s possession referring to Kultin. l\/lockovak then filed suit under the PRA against King County (County), alleging that he had not received any of the records that he requested The County and the KCPA soon began providing records, but many were redacted to protect work product. l\/lockovak, No, 74459-3-|, slip op. at 3. The trial court granted summaryjudgment to the County and KCPA in November 2015. li at 4. g
On l\/lockovak’s appeal of the PRA case, this court stated,
[Tjhe County and the KCPA argue that the documents at issue
contain no information about Kultin’s immigration status that
l\/lockovak did not know already. Specifically, they highlight five factual matters for which l\/lockovak seeks evidence First, Kultin was
a lawful permanent resident at the time of trial rather than a U[nited]
S[tates] citizen. Second, Kultin was in the United States on asylum
status Third, the immigration and Naturalization Service (lNS)
arrested Kultin in 1997. Fourth, the United States never offered
Kultin immigration assistance for his help as an informant and
witness. Fifthl Kultin had an application for citizenship pending at the time of trial.
1 Chapter 42.56 RCW.
NO. 74576-0-|/3
l\/lockovak, No. 74459-3-|, slip op. at 36-37.
This court found,
The record shows that the State provided evidence of the first three facts to l\/lockovak. . . . Thus, l\/lockovak cannot show substantial need for documents evidencing these facts. On|y the questions of when Kultin filed for citizenship and whether he received immigration assistance from the United States or the County remain at issue
On l\/lay 26, 2010, the State provided documentation to l\/lockovak showing that Kultin had an immigration application pending in Apri| 2009. Later, during this case, Kultin testified by deposition that he filed for citizenship again during 2011. l\/lockovak points to the crucial gap between the two dates and argues that the State never informed him whether Kultin had a citizenship application pending at the time of the criminal trial.
But l\/lockovak’s theories on the nature of that gap are all speculative He speculates that Kultin may have intended to file a new application after trial, capitalizing on the assistance he rendered the FB| [(Federal Bureau of lnvestigation)] and State. He also speculates that the 2009 application may have remained pending during trial or been denied before He further speculates that Kultin may have lied in the deposition and that the County, the KCPA, or the United States might have known it. His theories all fail because they do not suggest that the County, the KCPA, or United States have any information beyond what they provided
Regarding the possibility that Kultin obtained assistance from the [Department of Justice] or King County, the County and the KCPA argue that they already gave l\/lockovak complete information about any potential immigration assistance offered to Kultin. Specifically, they point to Carver’s declaration of December 3, 2010 and a letter from the KCPA to defense counsel on l\/lay 10, 2010. Carver and the author of the letter averred that Kultin did not receive any promise of immigration assistance for his testimony The County and the KCPA also highlighted Kultin’s testimony that he had participated in the investigation to do the right thing. Again, l\/lockovak can only speculate that these statements were disingenuous but his speculation falls below the substantial need he must demonstrate
g at 37-38.
NO. 74576-0-|/4
l\/lockovak filed this second PRP on September 22, 2015, while the public records challenge was ongoing. He argues that, in violation of Brady v. l\/la[yland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), the State failed to disclose material exculpatory evidence regarding Kultin’s immigration status to the defense, and that trial counsel was ineffective for failing to cross-examine Kultin on this issue. This court granted a stay of the petition pending judgment in the PRA case. l\/lockovak lost on appeal of his PRA claim. l\/lockovak, No. 74459-3-|, slip op. at 44. The stay was lifted and this court directed the State to respond to the PRP.2
D|SCUSS|ON
The State argues initially that l\/lockovak’s petition is untimely under RCW 10.73.090.
A personal restraint petition normally must be filed within one year after the judgment and sentence becomes final. RCW 10.73.090. |n this case, the judgment and sentence became final on December 4, 2013, when the Washington Supreme Court issued its mandate terminating l\/lockovak’s direct appeal, Therefore, the one year time period expired on December 4, 2014. l\/lockovak concedes that he filed this personal restraint petition after that expiration date, in
September 2015.
2 At oral argument on February 26, 2019, l\/lockovak’s counsel gave the t court a document entitled “lndex to Exhibits with Partial Timeline l\/lajor Events.” Arguing that the materials are improper under RAPs 10.1(a), (b)l and (h), 10.2, 10.3, and 10.7, the State moved to strike the materials To the extent the materials presented at oral argument were not in the record, they will be ignored by the court. The motion to strike is denied.
NO. 74576-0-|/5
l. Eguitable Tolling
l\/lockovak argues that his petition may proceed because of equitable tolling.
Equitable tolling is a remedy that permits a court to allow an action to proceed when justice requires it, even though a statutory time period has elapsed ' ln re Pers. Restraint of Bonds, 165 Wn.2d 135, 141, 196 P.3d 672 (2008). Equitable tolling is a “narrow doctrine to be used only sparingly and not applicable more generally to ‘garden variety’ claims of neglect.” ln re Pers. Restraint of Haghighi, 178 Wn.2d 435, 447-48, 309 P.3d 459 (2013).
The plurality opinion in _B_cm held that equitable tolling may be applied to the one-yeartime bar in RCW10.73.090, but that it did not apply to Bonds because he failed to show (1) bad faith, deception or false assurances by the State, and (2) the exercise ofdiligence by the petitioner. 165 Wn.2d at 141, 143-44. Fourjustices signed the opinion. l<_j_. at 144. ln a separate concurrence, two justices found that “equitable tolling may apply in circumstances other than where bad faith, deception, or false assurances are present,” but that the facts in the present case did notjustify tolling. _|_cL The concurrence stated,
[T]he 10-month delay by the Court of Appeals in acting on Bonds’s
personal restraint petition was not an extraordinary circumstance
and certainly is far less egregious than the circumstances in S_ta_t_e__y_;
Littlefair, 112 Wn. App. 749, 51 P.3d 116 (2002)l and ln re Personal Restraint of Hoisinqton, 99 Wn. App. 423, 993 P.2d 296 (2000).
l_d_; at 144-45. ln Haghighi the court reiterated,
Although this court has not previously settled what standard should be applied in this context, traditionally we have allowed equitable tolling when justice requires its application and when the predicates of bad faith, deception, or false assurances are met, and where the petitioner has exercised diligence in pursuing his or her rights
NO. 74576-0~|/6
178 Wn.2d at 447.
lVlockovak asks this court to rule that he timely filed his petition, because the one year statute of limitation was equitably tolled until “QM October 29, 2014.” This is the date lVlockovak states that the prosecuting attorney finished responding to his PRA request, and gave him the last installment of redacted records lVlockovak asserts that he was given false assurances that law enforcement agents acted in bad faith, and that he was deceived lVlockovak further claims that before and after his criminal trial, he diligently attempted to discover the true facts about Kut|in’s immigration and citizenship status
ll. Bad Faith. Deception, or False Assurances
lVlockovak argues that the State violated the due process rule of _B_Lagy and lei_o3 by failing to disclose Kultin’s pending citizenship application, the nature of his prior lNS arrest, and the fact that he was suspected of entering the United States fraudulently lVlockovak argues that the redacted records produced in the PRA case show that _B_r_ady/§_igli_g information was improperly withheld
The suppression of evidence that is both favorable to a criminal defendant and material to either guilt or punishment is a violation of due process, regardless of the good or bad faith of the prosecution §r_ady, 373 U.S. at 87. This includes evidence that may be used to impeach a witness’s credibility. _ngli_ol 405 U.S. at 154-55. A _B;r_a_dy violation has three components: (1) the evidence at issue must
be favorable to the accused, either because it is exculpatory or because it is
3 oiqiio v. united statesl 405 u.s. 150, 92 s. ct. 763, 31 L. Ed. 2d 104 (1972).
NO. 74576-0-|/7
impeaching; (2) the evidence must have been suppressed by the State, either willfully or inadvertently; and (3) prejudice must have ensued. Strickler v. Green, 527 U.S. 263l 281-82, 119 S. Ct. 1936, 144 L. Ed. 2d 286 (1999). impeachment evidence is especially likely to be material when it impugns the testimony of a witness who is critical to the prosecution’s case United States v. Kohrinq, 637 F.3d 895, 905-06 (9th Cir. 2010).
A. State’s initial Description of Kultin
lVlockovak asserts that some details about Kultin’s status were originally misreported. lVlockovak alleges that he was initially told that Kultin was a United States citizen, when he was not. Then, he asserts that he found out 11 months after he was charged that Kultin was a lawful permanent resident who had been granted asylee status in 1997.
This court has previously found that the State provided evidence to lVlockovak before trial that (1) Kultin was a lawful permanent resident at the time of trial rather than aUnited States citizen, (2) Kultin was in the United States on asylum status and (3) lNS arrested Kultin in 1997. l\/lockovak, No. 74459-3-|, slip op. at 36-37. Kultin’s actual status was disclosed to lVlockovak before trial. There is no basis to find that the State acted in bad faith, deceived, or made false assurances because it initially stated that Kultin was a citizen, but then corrected
itself and informed l\/lockovack of Kultin’s immigration status before trial.
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B, Asylum Status
Next, lVlockovak argues that it was never disclosed that there was “reason to believe” that Kultin had entered the United States fraudulently, by falsely . claiming that he needed political asylum.
l\/lockovak cites to Kultin’s deposition to support his claim that there was reason to believe that Kultin entered the United States fraudulently. ln the deposition taken on July 24, 2015, Kultin stated that he first came to the United States in 1994, when hejoined his father. When asked what his immigration status was when he first came, Kultin said, “l remember l was part of my father’s immigration status.” The deposer asked, “What does that mean ‘part’ of your father’s status’?" Kultin respondedl “As far as l know l was his son being included in his immigration process."
When asylum was raised, there was this exchange:
Okay. Why did you need asylum?
As far as l know, l was part of my father’s immigration process Why did you need asylum?
l\/ly father included me in his immigration papers
l’m asking about you. Did you need asylum?
l think that’s a better question for my father.
l don’t. l’m asking about you. You didn’t need asylum; did you?
.>_O.>_O.>_O.>_O
l have a feeling you’re trying to make me guilty of something, so l’m not going to answer this, and again, refer you to my father.
The questions and answers continued in this manner. The deposer later asked,
“The United States says that when you came to this country you were granted
NO. 74576-0-|/9
asylee status Do you still have asylee status today?” Kultin responded, “As far as l know, l’m a U[nited] S[tates] citizen." Kultin stated that he became a United States citizen in 2011, sometime after the trial in which he testified was over. He said that he was a green card holder for at least five years before he applied for citizenship He said that there was never a time when someone suggested or accused him of getting his green card fraudulently.
l\/lockovak asserts that Kultin lied about needing asylum status because, v during his deposition, he refused to answer the question He argues that this court can inferthat Kultin’s truthful answer would show that Kultin had committed a crime when he got his asylum status
Once a witness in a civil suit has invoked his or her Fifth Amendment privilege against self-incrimination, the trier of fact is entitled to draw an adverse inference from the refusal to testify. Kinq v. Olvmpic Pipeline Co., 104 Wn. App. 338, 355-56, 16 P.3d 45 (2000). “ln a civil proceeding such an inference is permissible where appropriate not as a sanction or remedy for any unfairness created by exercise of the privilege but simply because the inference is relevant and outside the scope of the privilege.” Diaz v. Wash. State l\/liqrant Council, 165 Wn. App. 59, 86, 265 P.3d 956 (2011) (emphasis added).
During the deposition, Kultin stated that he was part of his father’s immigration process to the United States He immigrated when he was 18, and, at the deposition, stated that he did not remember much during that time Kultin also appeared to be distrustful of the deposer. When Kultin told the deposer that
asylum status was a better question for his father, the deposer asked, “l don’t. l’m
NO. 74576-0-|/10
asking about you. You didn’t need asylum; did you?” Kultin responded, “l have a feeling you’re trying to make me guilty of something, so l’m not going to answer this, and again, refer you to my father.” His statements that he did not remember much but believed he was part of his father’s application suggest that he did not have the answer. He referred the questioner to a source he believed had the answer. He declined to speculate on the answer fearing trickery by counsel. Nothing indicates that he had additional knowledge with which to respond. This is qualitatively different from an assertion of a right to not answer a question to which he had the answer but it would be incriminating The court is not required to draw an adverse inference from his refusal to provide a further response §e_eM, 165 Wn. App. at 86.
Even if this court were to draw a negative inference from Kultin’s refusal to answer the question, the inference would not establish a fact of illegal immigration status And, it is not a sufficient basis to find that the State knew about or withheld information at the time of l\/lockovak’s trial that Kultin entered the United States fraudulently.
ln his deposition, Kultin never said that he entered the United States fraudulently, and there is no evidence of this claim in the deposition to which lVlockovak cites lf the State had no “reason to believe” Kultin committed fraud when he entered the United States, there was nothing to be “disclosed.” We cannot find that the State failed to act, let alone acted in bad faith, deceived, or made false assurances because it did not tell lVlockovak that there was “reason to
believe” that Kultin entered the country fraudulently.
NO. 74576-0-|/11
C. lNS Arrest
lVlockovak asserts that his counsel was not told until one month before trial that Kultin had been arrested by the lNS, and that he was never told the basis of the arrest. For support, in addition to Kultin’s deposition, lVlockovak cites an April 10, 2009 FBl report by George Steuer. The Steuer report states that Kultin was once arrested by immigration officials and that the case was dismissed.
The State disclosed evidence to lVlockovak before trial that the lNS arrested Kultin in 1997. lVlockovak, No. 74459-3-|, slip op. at 36-37. Specificaliy, in a declaration filed on December 3, 2010, Detective Len Carver wrote,
l am familiar with Kultin’s criminal and arrest history report, which reflects only one arrest. That arrest was on January 17, 1997, by U[nited] S[tates] Customs, immigration and Natura|ization (lNS) Service Kultin has no known criminal convictions
l have reviewed Department of Homeland Security documentation and know that Kultin is a legal permanent resident of the United States Kultin’s records indicate he has been a permanent resident since 2004. As proof of that status, Kultin was issued a permanent resident cardl commonly called a “green card” in 2005. Kultin would not be subject to deportation unless he was first convicted of certain types of crimes
During my interactions with Kultin,` he never expressed any concerns about his standing with lNS.
lVlockovak could have inquired further about the nature of the arrest and the disposition before or during the trial. He did not.
At his deposition in 2015, Kultin acknowledged that he was arrested by lNS, but that he had “legai immigration status” at the time of the arrest, and that it was a misunderstanding He said that he did not remember with what he had been
charged
NO. 74576-0-|/12
lVlockovak has not provided evidence that KCPA knew the nature of the lNS arrest and failed to disclose it. The implication of the inquiry is that Kultin was in the United States illegally. Certainly, the lNS had the opportunity to ascertain if Kultin had entered the country fraudulently when he was arrested, but rather than prosecute, they released him. The record discloses no reason the State had to believe Kultin was here illegal|y. Thus, there is no basis on which to find that the State acted in bad faithl deceived, or made false assurances in not disclosing what it did not know.
D. Application for Citizenship
lVlockovak claims “it was never disclosed that Kultin either had an application for citizenship pending at the time of i\/lockovak’s trial, or, alternatively that Kultin intended to file an application for U[nited] S[tates] citizenship as soon as l\/lockovak’s trial was finished.” Finally, he asserts that it was not disclosed that Kultin was granted United States citizenship after i\/iockovak's trial finished
The April 2009 Steuer report states that Kultin “is currently in the application process" to become a United States citizen This court previously found that, before triall the State provided documentation to lVlockovak showing that Kultin had an immigration application pending in Aprii 2009. l\/iockovak, No. 74459-3-|, slip op. at 37. Kultin filed for citizenship again during 2011. l_d_;
in Kultin’s deposition, he was asked, “Did you tell any law enforcement officer that you had an application pending'?” Kultin answered, “Not that l
remember.” When he was asked if he told anyone at the FBl if he had a citizenship
application pending, Kultin answered, “l don’t remember saying that.” Kultin stated
NO. 74576-0-|/13
that his “application for citizenship didn’t happen until sometime later [after the trial]."
VVhether the FB| learned of Kultin’s application for citizenship from Kultin or elsewhere is of no consequence The fact that Kultin had applied for citizenship was disclosed to lVlockovak before trial.
As this court previously found in his PRA case, l\/lockovak’s theories on the nature of the gap between his 2009 application and his 2011 application are all speculative ld_. at 37-38. And, this court also found that law enforcementl KCPA, and Kultin all stated that Kultin did not receive any promise of immigration assistance for his testimony in the case. _l_g_. at 2, 38.
Specificaliy, this court stated,
Carver and the author of the letter averred that Kultin did not receive
any promise of immigration assistance for his testimony The County
and the KCPA also highlighted Kultin’s testimony that he had
participated in the investigation to do the right thing. Again,
lVlockovak can only speculate that these statements were
disingenuous but his speculation fails below the substantial need he must demonstrate
g at 38.
lVlockovak argues that the redacted records produced in the PRA case show that §Lady/Qg_lig information was improperly withheld ln the 2015 PRA case, the County and the KCPA provided records many of which were heavily redacted. id at 3. i\/iockovak argued that the documents were improperly redacted. ld_. The
KCPA moved for summary judgment, and filed sealed and unredacted copies of
130 documents for in camera review. ld_. The trial court ultimately granted
NO. 74576-0-|/14
summaryjudgment to the County and KCPA. l_d_. at 4. The unredacted documents were not disclosed _S___e__e _i_d_; at 21-22.
in that case, l\/lockovak argued that redacted documents labeled “26, 77, and 99” must be disclosed by the County in fuli. i_
As evidence that the State offered some sort of assistance to Kultin, lVlockovak also points to an e-maii exchange between the prosecutor’s office and an immigration and Customs Enforcement (lCE) agent. lVlockovak argues that the exchange suggests that the prosecutor was worried that Kultin was in danger of losing his green card status And, he asserts that the e-mails indicate that the ` prosecutor was trying to determine if Kultin was still seeking citizenship, so that she could see whether law enforcement could assist him in obtaining it.
in one e-mail, the iCE agent sent the prosecutor a link to the United States
Customs and immigration Services website, and attached three documents that
can be found at the website. The documents provide information about what a v
NO. 74576-0-|/15
green card is, rights and responsibilities of a permanent resident, and warns green card holders about acts that might cause them to lose their green card status The prosecutor sent an e-mail thanking the iCE agent, and the rest of the e-maii--a couple of lines--is redacted.
These e-mails show that the iCE agent provided the prosecutor with publicly available information regarding a green card hoider’s status not Kultin’s status They do not show that the State offered any sort of promise or assurance to assist Kultin in obtaining citizenship
lVlockovak also argues that the FBi assigned a victim specialist to provide 1 “assistance” to Kultin. lVlockovak cites e-maiis in which the prosecutor states that she is going to tell Kultin’s attorney “to expect her assistance,” and another e-maii to Kultin explaining who the “victim specialist” is. These e-mails do not show any communication between the “specia|ist" and Kultin, and this court has no basis to infer that the specialist offered Kultin assistance with his citizenship status
Fina|ly, during the triall the KCPA provided i\/iockovak’s counsel with a memo affirming that there were no promises to assist with Kultin’s immigration status i\/iockovak’s counsel stated on the record, “i am satisfied that_we were given a two-page memo that makes statements about assistance-or lack of assistance with any immigration issue.” And, i\/lockovak’s counsel statedl “i have y no reason to doubt the accuracy of that information, and assuming that information is complete . . . we have been provided the information."
i\/iockovak has not met the high burden of demonstrating that his second
PRP was untimely due to bad faith, deception, or false assurances The narrow
NO. 74576~0-|/16
equitable tolling exception does not apply Thereforel i\/lockovak’s petition was W/ §§ wit/tmi 0
untimely and we deny his petition,4
WE CONCUR:
4 lVlockovak also argues that trial counsel’s failure to question Kultin about his immigration and citizenship status both pretrial and during the trial deprived him of his right to effective assistance of counsel. As i\/iockovak’s second PRP was untimeiy, we do not reach the merits of his ineffective assistance claim.