Filed Washington State Court of Appeals Division Two
January 14, 2025
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II In the Matter of the Personal Restraint of: No. 58818-8-II
MICHAEL MUTHEE MUNYWE, UNPUBLISHED OPINION Petitioner,
PRICE, J. — In his personal restraint petition (PRP), Michael M. Munywe seeks relief from
personal restraint following his convictions for second degree rape and unlawful imprisonment.
Munywe argues that (1) his conviction for unlawful imprisonment violates double jeopardy, (2)
there was insufficient evidence to support his unlawful imprisonment conviction, (3) the time for
trial rules and his constitutional speedy trial rights were violated, (4) his constitutional rights were
violated by law enforcement conduct during his interrogation, (5) he received ineffective
assistance of counsel, and (6) the State committed prosecutorial misconduct.
We disagree and deny Munywe’s PRP.
FACTS
I. BACKGROUND
On November 21, 2018, law enforcement responded to a 911 call from 15-year-old A.G.
Law enforcement arrived at A.G.’s location and found her with Munywe. A.G. told law
enforcement that Munywe used his hands to push A.G.’s head down and then “put his penis inside
of her mouth.” 6 Verbatim Rep. of Proc. (VRP) at 529. Shortly thereafter, law enforcement No. 58818-8-II
arrested Munywe. After being advised of his Miranda rights, Munywe denied having any sexual
contact with A.G.
On the same day of the alleged rape, a sexual assault nurse examiner (SANE nurse)
collected swabs from A.G.’s mouth and cheek. Law enforcement also obtained a search warrant
to search Munywe’s body for DNA evidence. A female crime scene technician swabbed
Munywe’s genitals for DNA.
After an investigation, the State charged Munywe with first degree rape and first degree
kidnapping with sexual motivation.
II. PRETRIAL PROCEEDINGS
Munywe’s trial was continued six times. Five orders granting continuances were granted
“upon agreement of the parties pursuant to CrR 3.3(f)(1)” or “in the administration of justice
pursuant to CrR 3.3(f)(2).” Br. of Resp’t App. at 42-43, 46, 49, 52. The sixth continuance was
“for administrative necessity” because the trial court judge was out sick and there were no other
judicial officers available to preside over the trial that day. Although his counsel did not object to
any of the continuances, Munywe personally objected to several of them. Munywe’s trial
commenced approximately 14 months after he was charged.
On January 22, 2020, the scheduled first day of trial, Munywe’s counsel was also sick and
so another attorney filled in to represent Munywe for the day. Munywe’s stand-in counsel noted
that Munywe had written a letter in Swahili and informed the trial court that Munywe wanted to
address the trial court directly. The trial court allowed Munywe to speak. Munywe said that his
charges should be dismissed because the time for trial rules and his constitutional speedy trial right
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had been violated. The trial court deferred ruling on Munywe’s oral motion until his primary trial
counsel returned.
The next day, Munywe’s primary trial counsel returned and re-raised the timely trial issues
that Munywe raised the day before. The trial court stated that it had reviewed the case file and did
not “see any violation.” 2 VRP at 33. Munywe’s counsel responded that he agreed with the trial
court and that he had advised Munywe not to file a written motion. Munywe’s counsel also said
that he would not be filing any formal motion because he was bound by the Rules of Professional
Conduct not to file a motion with no reasonable basis in law or fact. The trial court noted that
Munywe’s objection was preserved but that there were no time for trial or constitutional speedy
trial violations.
III. TRIAL
At Munywe’s jury trial, A.G., several law enforcement officers, a SANE nurse, and a
forensic scientist with the Washington State Patrol Crime Lab all testified for the State.
A.G. testified that she was coming home from school activities when she got off a bus and
started walking home in the dark. She explained that as she started walking, a stranger, Munywe,
began walking beside her and talking to her. A.G. decided to not go directly home because she
did not want Munywe to know where she lived.
Eventually, Munywe grabbed A.G.’s wrist. A.G. tried to pull away more than once, with
enough force to let Munywe know that she did not want to be held, but she was unable to escape.
Munywe walked in front of A.G., leading her up a hill while continuing to hold A.G.’s wrist.
A.G. explained that Munywe led her to “an alley” where he pushed her down to her knees.
6 VRP at 573. A.G. testified that Munywe then took out his penis. A.G. told Munywe that she
3 No. 58818-8-II
“[did not] want to do this.” 6 VRP at 579. But Munywe grabbed A.G.’s head with both hands and
forced his penis into A.G.’s mouth.
During the testimony, a juror apparently was coughing. At a recess, the trial court
discussed the health of the juror with both counsel. Munywe’s counsel and the State both said
that, even with the coughing, it seemed like the juror was paying attention. Later, outside the
presence of the rest of the jury, the trial court questioned the juror about her health. The juror
stated that despite her coughing episodes, she was still listening to the evidence and that she felt
that she was getting better. The trial court did not dismiss the juror.
The forensic scientist testified and said that DNA testing showed that swabs taken from
A.G.’s cheek contained Munywe’s DNA. The forensic scientist also testified that DNA testing
showed that Munywe’s penile swab contained A.G.’s DNA.
After the State rested, the defense rested without presenting any evidence.
IV. JURY INSTRUCTIONS AND CLOSING ARGUMENTS
The case proceeded to jury instructions. The trial court instructed the jury on the charged
offenses, as well as several lesser included offenses, including second degree rape and unlawful
imprisonment. The trial court instructed the jury that if it did not find Munywe guilty of first
degree rape, it could find him guilty of second degree rape if the State proved beyond a reasonable
doubt that Munywe engaged in sexual intercourse with A.G. by forcible compulsion. The trial
court instructed that “forcible compulsion” was defined as “physical force which overcomes
resistance, or a threat, express or implied, that places a person in fear of death or physical injury
to oneself or another person or in fear of being kidnapped or that another person will be
kidnapped.” Clerk’s Papers (CP) at 29.
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The trial court also instructed the jury that if it did not find Munywe guilty of first degree
kidnapping, it could find Munywe guilty of unlawful imprisonment if it found that the State proved
beyond a reasonable doubt that Munywe restrained A.G.’s movements and that Munywe acted
knowingly. The trial court instructed that, in this context, “restrain” means “to restrict another
person’s movements without consent and without legal authority in a manner which interferes
substantially with that person’s liberty.” CP at 37.
Following the instructions to the jury, the parties gave their closing arguments. The State
argued that Munywe committed the rape with forcible compulsion when he grabbed A.G.’s head
and forced his penis into her mouth. And in addition to explaining why Munywe’s acts amounted
to forcible compulsion, the State explained how Munywe had restrained A.G. before the rape. The
State argued that Munywe grabbed A.G.’s hand and that A.G. tried to pull it away but that Munywe
would not let go. Instead of letting her go, the State argued that Munywe dragged A.G. to an alley
because he wanted to rape her.
V. VERDICT, SENTENCING, AND POST-VERDICT POSTURE
The jury found Munywe guilty of the lesser included offenses of second degree rape and
unlawful imprisonment. The jury also found, via a special verdict form, that Munywe committed
the unlawful imprisonment with sexual motivation. The trial court sentenced Munywe to an
indeterminate sentence of 136 months to life followed by lifetime community custody.
Munywe filed a direct appeal, arguing, in relevant part, that the trial court erred by
declining to dismiss a juror who was coughing excessively during testimony. State v. Munywe,
No. 54681-7-II, slip op. at 6 (Wash. Ct. App. Jan. 19, 2022) (unpublished).1 In a statement of
1 https://www.courts.wa.gov/opinions/pdf/D2%2054681-7-II%20Unpublished%20Opinion.pdf.
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additional grounds (SAG), Munywe also claimed that there was insufficient evidence that he
restrained, abducted, or kidnapped A.G. and that any crimes took place. Id. at 12. This court
affirmed, holding that the trial court did not err by declining to dismiss the juror and that sufficient
evidence supported his convictions. Id.
Munywe also filed two complaints in federal district court under 42 U.S.C. § 1983, alleging
that law enforcement officers violated his constitutional rights during his interrogation. Munywe
claimed that law enforcement violated his Fourth Amendment right to be free from unreasonable
searches when he was subjected to a cross-gender strip search during the collection of his DNA
from his genitals. Munywe also argued that law enforcement used coercive police tactics to induce
a confession from him. The federal district court considered the merits of Munywe’s claims and
dismissed them on summary judgment.
Munywe filed this timely PRP.2
ANALYSIS
Relief by way of a collateral challenge through a PRP is extraordinary; the petitioner must
meet a high standard before this court will disturb an otherwise settled judgment. In re Pers.
2 The final mandate in Munywe’s direct appeal was issued on June 14, 2022. Munywe filed his PRP on May 19, 2023. Because Munywe filed his PRP within one year, it is timely. RCW 10.73.090. On January 10, 2024, more than one year after the mandate, Munywe’s appointed counsel filed a “supplemental brief” in support of Munywe’s PRP raising double jeopardy as an additional issue. Suppl. Br. of Pet’r at 24. A double jeopardy violation is an exception to the one-year time bar. Former RCW 10.73.100(3) (1989); In re Pers. Restraint of Schorr, 191 Wn.2d 315, 320, 422 P.3d 451 (2018). However, our record does not show the filing of a petitioner verification under RAP 16.7(a)(7) for the raising of this new issue. Nor did appointed counsel move the court for permission to file an amended brief raising an issue not raised in Munywe’s initial PRP. Notwithstanding these concerns, we exercise our discretion to address double jeopardy.
6 No. 58818-8-II
Restraint of Coats, 173 Wn.2d 123, 132, 267 P.3d 324 (2011). To obtain relief in a PRP, a
petitioner must demonstrate either a constitutional error resulting in actual and substantial
prejudice or a nonconstitutional error that is a fundamental defect resulting in a complete
miscarriage of justice. In re Pers. Restraint of Swagerty, 186 Wn.2d 801, 807, 383 P.3d 454
(2016). If the petitioner fails to demonstrate actual and substantial prejudice or a fundamental
defect, we deny the PRP. In re Pers. Restraint of Schreiber, 189 Wn. App. 110, 113, 357 P.3d
668 (2015).
To meet their burden in a PRP, the petitioner must state with particularity facts that, if
proven, would entitle the petitioner to relief. In re Pers. Restraint of Rice, 118 Wn.2d 876, 886,
828 P.2d 1086 (1992). Bald assertions and conclusory allegations are not sufficient. Id.
Arguments made only in broad, general terms are also insufficient. In re Pers. Restraint of Rhem,
188 Wn.2d 321, 327, 394 P.3d 367 (2017).
In his PRP, Munywe seeks collateral relief based on six arguments: (1) that his convictions
for second degree rape and unlawful imprisonment violate double jeopardy, (2) that there was
insufficient evidence to support his unlawful imprisonment conviction, (3) that his time for trial
and constitutional speedy trial rights were violated, (4) that several of his constitutional rights were
violated when he was subjected to an unreasonable cross-gender strip search and when law
enforcement purportedly used coercive tactics to induce a confession from him, (5) that he received
ineffective assistance of counsel, and (6) that the State committed prosecutorial misconduct. Each
argument will be addressed in turn.
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I. DOUBLE JEOPARDY
Munywe argues that his unlawful imprisonment conviction must be vacated because it
violates double jeopardy. We disagree.
We review constitutional claims de novo. State v. Freeman, 153 Wn.2d 765, 771, 108 P.3d
753 (2005). The United States Constitution and the Washington Constitution provide defendants
coextensive protections from double jeopardy. U.S. CONST. amend. V; WASH. CONST. art. I, § 9;
State v. Reeder, 184 Wn.2d 805, 825, 365 P.3d 1243 (2015). The double jeopardy clause protects
against multiple punishments for the same offense. In re Pers. Restraint of Orange, 152 Wn.2d
795, 815, 100 P.3d 291 (2004). “Where a defendant’s act supports charges under two criminal
statutes, a court weighing a double jeopardy challenge must determine whether, in light of
legislative intent, the charged crimes constitute the same offense.” Id.
We follow several analytical steps to determine legislative intent regarding whether
cumulative punishment is authorized. Freeman, 153 Wn.2d at 771-73. First, we consider any
express or implied legislative intent from the statutes. Id. at 771-72. If there is express or implied
legislative intent from the statutes, our inquiry ends. State v. Arndt, 194 Wn.2d 784, 816, 453 P.3d
696 (2019).
However, if there is no express or implied legislative intent from the statutes demonstrating
that cumulative punishment is authorized, then we proceed to the next analytical step, the same
evidence test, also known as the Blockburger test. Freeman, 153 Wn.2d at 772. Under the
Blockburger test, if the crimes as charged and proved are not the same in law and in fact, they may
not be punished separately absent clear and contrary legislative intent. Id. at 777.
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There are some circumstances for which the Blockburger test is not dispositive of
legislative intent regarding whether two offenses should be punished separately. Id.
Consequently, we may turn, where appropriate, to another tool for determining legislative intent
in the context of double jeopardy—the merger doctrine. Id. “Under the merger doctrine, when
the degree of one offense is raised by conduct separately criminalized by the legislature, we
presume the legislature intended to punish both offenses through a greater sentence for the greater
crime.” Id. at 772-73. In such cases, the defendant is punished only for the greater offense. See
In re Pers. Restraint of Francis, 170 Wn.2d 517, 525, 242 P.3d 866 (2010). However, even when
the offenses would appear to merge under the doctrine, they may still be punished as separate
offenses if the offenses have independent purposes or effects. See Freeman, 153 Wn.2d at 773;
Arndt, 194 Wn.2d at 819 (“One exception to the merger doctrine, however, is when overlapping
offenses have independent purposes or effects.”).
A. BLOCKBURGER TEST
As an initial matter, the parties agree that there is no express or implied articulation of
legislative intent in the second degree rape and unlawful imprisonment statutes. Consequently,
we turn to the Blockburger test and the merger doctrine to determine whether the legislature
authorized cumulative punishment for second degree rape and unlawful imprisonment. See
Freeman, 153 Wn.2d at 771-73.
Munywe argues that his unlawful imprisonment conviction violates double jeopardy under
the Blockburger test. Pointing to the State’s closing argument, Munywe contends that the State
used the act of restraint for unlawful imprisonment to prove the forcible compulsion necessary for
second degree rape. Munywe’s argument is unpersuasive.
9 No. 58818-8-II
Under the Blockburger test, we first consider whether the two crimes contain different
elements to determine if the crimes are the same in law. Freeman, 153 Wn.2d at 772. With respect
to that inquiry—second degree rape and unlawful imprisonment clearly contain different
elements.3 Second degree rape requires proof of sexual intercourse, whereas unlawful
imprisonment does not. RCW 9A.44.050(1)(a); RCW 9A.40.040(1). Because second degree rape
and unlawful imprisonment do not contain the same elements, they are not the same in law.
But our inquiry does not end merely because the offenses are not the same in law. We
must next ascertain whether the offenses are the same in fact. Freeman, 153 Wn.2d at 777. Crimes
are not the same in fact if each offense requires proof of a fact that the other does not. See Arndt,
194 Wn.2d at 818. Two crimes are also not the same in fact if different evidence is used to prove
each crime. See State v. Davis, 174 Wn. App. 623, 633, 300 P.3d 465, review denied, 178 Wn.2d
1012 (2013); see also State v. Noltie, 116 Wn.2d 831, 848, 809 P.2d 190 (1991). When applying
the Blockburger test, we consider the crimes as charged and proved rather than in the abstract.
Freeman, 153 Wn.2d at 777.
3 A person is guilty of second degree rape if the person engages in sexual intercourse with another person by forcible compulsion. RCW 9A.44.050(1)(a). “ ‘Forcible compulsion’ means physical force which overcomes resistance, or a threat, express or implied, that places a person in fear of death or physical injury to herself or himself or another person, or in fear that she or he or another person will be kidnapped.” RCW 9A.44.010(3). A person is guilty of unlawful imprisonment with sexual motivation if they knowingly restrain another person for the purpose of the defendant’s sexual gratification. RCW 9A.40.040(1); RCW 9.94A.030(48). “Restrain” is defined as “to restrict a person’s movements without consent and without legal authority in a manner which interferes substantially with his or her liberty.” RCW 9A.40.010(6). (Former RCW 9A.44.050 (2007), former RCW 9A.44.010 (2007), and former RCW 9.94A.030(48) (2018) were in effect at the time that Munywe committed the offenses. Because the language of the relevant portions have not changed, we cite to the current versions.)
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Here, the unlawful imprisonment and the second degree rape were two separate crimes
proven with different evidence. In its closing argument, the State contended that Munywe was
guilty of first degree kidnapping (a crime that includes the concept of restraining a person, similar
to unlawful imprisonment) by restraining A.G. when he grabbed and held onto A.G.’s hand and
did not let go when she tried to pull away. And the State presented evidence proving this argument.
A.G. testified that while they were walking, Munywe began to hold A.G.’s wrist and that she tried
to pull away more than once but was unsuccessful. A.G. further explained that Munywe led her
up a hill, while walking in front of her and continuing to hold her wrist. Munywe’s acts of grabbing
A.G.’s wrist and refusing to let go while leading her up a hill are more than enough to prove that
he “restrained” A.G. such that he committed unlawful imprisonment separate from the act of
second degree rape. See RCW 9A.40.040(1); RCW 9A.40.010(6).
The State did not rely on this same evidence to prove the second degree rape. In its closing
argument, the State contended that Munywe used forcible compulsion when he grabbed A.G.’s
head and forced his penis into her mouth. The State presented ample evidence proving this
argument. A.G. testified that Munywe grabbed her head with both hands and forced his penis into
her mouth when they were in the alley. This testimony established that Munywe used “forcible
compulsion”—that is, physical force to overcome A.G.’s resistance to being raped. See RCW
9A.44.010(3). This forcible compulsion is distinct from the restraint used for the unlawful
imprisonment; nothing about how Munywe grabbed A.G.’s wrist and led her up a hill to the alley
amounted to sexual intercourse by forcible compulsion. Because the State proved the unlawful
imprisonment and second degree rape with different evidence, the offenses were not the same in
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fact.4 See Davis, 174 Wn. App. at 633-34 (holding that attempted murder and first degree assault
convictions were not the same in fact where the State proved each crime with different evidence).
B. MERGER
Having found Munywe’s offenses as different in law and fact under the Blockburger test,
we next turn to address Munywe’s argument regarding merger. See Arndt, 194 Wn.2d at 819. As
noted above, “when the degree of one offense is raised by conduct separately criminalized by the
legislature, we presume the legislature intended to punish both offenses through a greater sentence
for the greater crime.” Freeman, 153 Wn.2d at 772-73. Munywe argues that his two convictions
merge because “the restraint conduct was also the necessary forcible compulsion to elevate the
rape to second-degree.” Suppl. Br. of Pet’r at 15. We disagree.
The crimes of unlawful imprisonment with sexual motivation and second degree rape by
forcible compulsion do not merge because, looking at the elements of each crime, an unlawful
imprisonment would not elevate the greater crime of rape from third degree rape to second degree
rape. Whereas second degree rape, as instructed here, requires “forcible compulsion,” unlawful
imprisonment only requires restraining another person. RCW 9A.44.050(1); RCW 9A.40.040(1).
Thus, from simply looking at the elements of the two offenses, no merger appears to occur. See
State v. Atkins, 130 Wn. App. 395, 401, 123 P.3d 126 (2005) (unlawful imprisonment does not
4 Just because the two crimes are not the same in fact does not mean they must be wholly unconnected—Munywe’s motivation to unlawfully imprison A.G. was likely connected to his desire to rape A.G. Indeed, the State argued in closing that the only reason that Munywe led A.G. to the alley was because he wanted to rape her. But even though that fact was relevant for the sexual motivation special verdict finding, it was not directly relevant to the elements of the underlying conviction of unlawful imprisonment itself. See State v. Atkins, 130 Wn. App. 395, 401, 123 P.3d 126 (2005) (just because unlawful imprisonment was “incidental to and an aid in effecting” second degree rape, crimes did not violate double jeopardy).
12 No. 58818-8-II
merge with second degree rape because it is not an element that the State must prove for second
degree rape).
Munywe attempts to avoid this conclusion by arguing, similarly to his Blockburger
argument, that merger should occur here because the “restraint” used for his unlawful
imprisonment was the “forcible compulsion” used to elevate the rape to second degree. Suppl. Br.
of Pet’r at 13-14 (internal quotation marks omitted). This same type of factual argument was
unsuccessful in Atkins. 130 Wn. App. at 401. In Atkins, the defendant also argued his convictions
for second degree rape by forcible compulsion and unlawful imprisonment merged because the
restraint used was the forcible compulsion. Id. Division Three disagreed. Id. After concluding
that the elements of unlawful imprisonment did not elevate the rape offense, the court rejected the
defendant’s factual argument that the only force used to accomplish the rape was his refusal to let
the victim leave, i.e. the restraint. Id. The court reasoned that because the defendant forced the
victim “on himself in the front seat of her car, and he forced himself on her in the back seat,” the
facts easily satisfied the elements of second degree rape by forcible compulsion separate from his
refusal to let the victim leave. Id. Here, like in Atkins, Munywe’s acts of grabbing A.G.’s head
with both hands and forcing his penis into her mouth easily satisfied the elements of second degree
rape by forcible compulsion separate and apart from Munywe’s earlier act of restraining A.G. by
grabbing her wrist and refusing to let go. Accordingly, we hold that the unlawful imprisonment
did not merge with second degree rape.5
5 Because we conclude the offenses do not merge, we need not consider the fourth analytical step of the legislative intent inquiry—whether the offenses have an independent purpose or effect. See Arndt, 194 Wn.2d at 819.
13 No. 58818-8-II
Because the offenses are not the same in law or the same in fact, and they do not merge,
we conclude that they do not violate double jeopardy.6
II. SUFFICIENCY OF THE EVIDENCE
Munywe next claims that there was insufficient evidence to support his unlawful
imprisonment conviction because A.G. purportedly “made her own free choices” in deciding
where she wanted to go. Br. of Pet’r at 9. We disagree.
A petitioner “ ‘is prohibited from renewing an issue that was raised and rejected on direct
appeal unless the interests of justice require relitigation of that issue.’ ” In re Pers. Restraint of
Yates, 177 Wn.2d 1, 17, 296 P.3d 872 (2013) (quoting In re Pers. Restraint of Davis, 152 Wn.2d
647, 671, 101 P.3d 1 (2004)). An issue is raised and rejected on direct appeal if the same ground
presented in the petition was determined adversely to the petitioner on appeal and that
determination was on the merits. In re Pers. Restraint of Tricomo, 13 Wn. App. 2d 223, 234,
463 P.3d 760 (2020). “The interests of justice are served by reconsidering a ground for relief if
there has been ‘an intervening change in the law or some other justification for having failed to
raise a crucial point or argument in the prior application.’ ” Yates, 177 Wn.2d at 17 (internal
quotation marks omitted) (quoting In re Pers. Restraint of Stenson, 142 Wn.2d 710, 720,
6 Munywe argues that the rule of lenity must be applied in interpreting the ambiguous verdicts in his favor. Munywe asserts that the mere possibility that his acts of forcing A.G.’s head down and his penis into A.G.’s mouth could have been viewed by the jury as proof of restraint required to convict him of unlawful imprisonment means that the jury could have relied on the same evidence to find Munywe guilty of both crimes. Munywe also speculates that the jury could have found “a continuing and ongoing restraint from the moment A.G. tried to pull away until after the rape.” Suppl. Br. of Pet’r at 16. But the rule of lenity is a tool of statutory interpretation used as a last resort. City of Bremerton v. Bright, __ Wn. App. 2d __, 556 P.3d 739, 743 (2024). We will not use the rule of lenity unless all other avenues have been exhausted and there is still ambiguity. See id. Here, because we conclude Munywe’s convictions do not violate double jeopardy, we decline to apply the rule of lenity.
14 No. 58818-8-II
16 P.3d 1 (2001)). “A petitioner may not avoid this requirement ‘merely by supporting a previous
ground for relief with different factual allegations or with different legal arguments.’ ” Id. (quoting
Davis, 152 Wn.2d at 671).
Here, Munywe raises the same sufficiency of the evidence claim that he raised in his SAG
as part of his direct appeal. On direct appeal, Munywe claimed that there was insufficient evidence
that he restrained, abducted, or kidnapped A.G. and that any crimes took place. Munywe,
No. 54681-7-II, slip op. at 12. This court rejected those assertions, holding that there was sufficient
evidence to support his convictions. Id. Now in his PRP, Munywe again claims that insufficient
evidence supports his conviction for unlawful imprisonment, but he makes no argument for why
the interests of justice require relitigation of this issue. We decline to consider Munywe’s
previously raised and rejected claim pertaining to the sufficiency of the evidence of his unlawful
imprisonment conviction.7 See Yates, 177 Wn.2d at 17.
III. TRIAL CONTINUANCES
Munywe contends that his speedy trial rights were violated because multiple continuances
delayed his trial for over a year. We disagree.
Munywe first argues that the trial continuances violated the time for trial rules under CrR
3.3. Because a violation of the time for trial rules is grounded in CrR 3.3, a court rule, it is a
nonconstitutional error. And because this is a PRP, Munywe must then demonstrate that any time
7 Munywe also appears to allege that he is actually innocent and “did not commit” second degree rape and unlawful imprisonment. Br. of Pet’r at 9. To the extent that Munywe is doing so, his actual innocence claim fails. Gateway actual innocence claims are “used to avoid procedural time bars so that a court may review other claimed constitutional errors.” In re Pers. Restraint of Weber, 175 Wn.2d 247, 256, 284 P.3d 734 (2012). Here, a gateway actual innocence claim is irrelevant because Munywe’s claims are not procedurally time barred. Id.
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for trial violation was a fundamental defect resulting in a complete miscarriage of justice. See
Swagerty, 186 Wn.2d at 807. However, Munywe makes no effort to do so. Thus, his time for trial
argument fails. See Schreiber, 189 Wn. App. at 113.
Munywe next argues that his constitutional speedy trial right was violated by the 14-month
trial delay. Because a constitutional speedy trial violation is a constitutional error, Munywe must
show actual and substantial prejudice. See Swagerty, 186 Wn.2d at 807. Munywe argues that he
was “substantially prejudiced” by the trial delay because his “memory faded,” the delay
purportedly resulted in one of Munywe’s trial witnesses being unavailable to testify, and the delay
caused him not to testify at his trial. Br. of Pet’r at 37, 39. However, beyond making these
conclusory assertions, Munywe does not demonstrate how this alleged prejudice would have
undermined the strong evidence of his guilt presented at trial, including the forensic scientist’s
testimony about the DNA evidence (from both A.G.’s cheek and Munywe’s genitals) and A.G.’s
testimony about the circumstances of the rape. As a result, Munywe fails to demonstrate that he
was actually and substantially prejudiced by the alleged constitutional speedy trial violation.
IV. FOURTH AND FIFTH AMENDMENT ARGUMENTS
Munywe next argues that law enforcement violated his Fourth Amendment right to be free
from unreasonable searches when he was subjected to a cross-gender strip search when his DNA
was collected by a female crime scene technician. Munywe also argues that law enforcement used
coercive police tactics to induce a confession in violation of the Fifth Amendment, which denied
his right to a fair trial. The State argues that Munywe’s claims are barred by collateral estoppel
because Munywe raised these exact same issues in his federal lawsuits against law enforcement,
which were both dismissed on summary judgment. We agree with the State.
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Collateral estoppel is designed to prevent the relitigation of issues between parties that are
in privity with one another. In re Pers. Restraint of Metcalf, 92 Wn. App. 165, 173-74, 963, P.2d
911 (1998). “Collateral estoppel has four requirements: (1) the issue decided in the prior
adjudication must be identical with the one presented in the second; (2) the prior adjudication must
have ended in a final judgment on the merits; (3) the party against whom the plea of collateral
estoppel is asserted must have been a party or in privity with a party to the prior litigation; and (4)
application of the doctrine must not work an injustice.” Id. at 174. If a party demonstrates that
collateral estoppel applies, then the party against whom collateral estoppel is being asserted against
is barred from relitigating the same issues. See Christensen v. Grant County Hosp. Dist. No. 1,
152 Wn.2d 299, 306, 96 P.3d 957 (2004).
Here, all four elements of collateral estoppel are met. First, whether Munywe’s Fourth and
Fifth Amendment rights were violated were raised in his federal lawsuits. In these lawsuits,
Munywe claimed both that he was subjected to an unreasonable search when he was subjected to
a cross-gender strip search and that law enforcement used coercive police tactics to induce a
confession from him. These are identical to the issues that Munywe raises in this PRP. Second,
the prior federal lawsuits resulted in final judgments on the merits because the district court granted
summary judgment in favor of law enforcement and against Munywe in each case. Third, Munywe
was the plaintiff in both federal lawsuits and is the party against whom collateral estoppel is being
asserted against. Fourth, precluding relitigation of the issues will not work an injustice because
Munywe had a full and fair opportunity to litigate his claims in federal district court and the federal
district court only granted summary judgment against him after considering his claims on the
17 No. 58818-8-II
merits. Thus, we conclude that collateral estoppel bars Munywe from relitigating his constitutional
claims related to his treatment by law enforcement.
V. INEFFECTIVE ASSISTANCE OF COUNSEL
Munywe next makes several arguments that he received ineffective assistance of counsel.
He argues that (1) his counsel improperly worked together with the State to obtain trial
continuances without a lawful basis, (2) his counsel neglected his letters written in Swahili, (3) his
counsel improperly abandoned his motion to dismiss on the first day of trial, and (4) his counsel
failed to inquire into how much evidence a juror missed due to her coughing. We disagree.
To show ineffective assistance of counsel, the defendant must demonstrate (1) that their
counsel’s performance was deficient and (2) that the deficient performance prejudiced the
defendant. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984);
Yates, 177 Wn.2d at 35. Failure to establish either prong is fatal to the claim. Strickland, 466 U.S.
at 700.
Counsel’s performance is deficient if it falls below an objective standard of reasonableness.
State v. Grier, 171 Wn.2d 17, 33, 246 P.3d 1260 (2011). We strongly presume that counsel’s
performance was reasonable. Id. Generally, counsel’s performance is not deficient when
counsel’s conduct can be characterized as a legitimate trial strategy or tactic. Id.
To show prejudice—the second prong of the Strickland test—the defendant must
demonstrate a reasonable probability that the outcome of the proceeding would have been different
if counsel had not performed deficiently. See State v. Bertrand, 3 Wn.3d 116, 129, 546 P.3d 1020
(2024). If a petitioner establishes prejudice under the Strickland test, they have necessarily met
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their burden to show actual and substantial prejudice in the context of a PRP. In re Pers. Restraint
of Crace, 174 Wn.2d 835, 846-47, 280 P.3d 1102 (2012).
Although a petitioner that establishes prejudice under the Strickland test has necessarily
met their burden to show actual and substantial prejudice in the context of a PRP, a petitioner is
still required to meet their evidentiary burden to state with particularity facts that, if proven, would
entitle the petitioner to relief. See id.; Rice, 118 Wn.2d at 886. For each ineffective assistance of
counsel argument, Munywe fails to meet his evidentiary burden.
First, Munywe argues that his counsel “worked together” with the State without a “lawful
basis” to obtain trial continuances. Br of Pet’r at 46. However, merely agreeing to a trial
continuance does not establish that Munywe’s counsel “worked together” with the State to obtain
trial continuances “without a lawful basis.” And Munywe offers no other evidence to support this
allegation. Because Munywe does not meet his factual burden, his argument fails. See Rice,
118 Wn.2d at 886 (explaining that the petitioner must state with particularity facts that, if proven,
would entitle the petitioner to relief to meet their burden in a PRP).
Second, Munywe argues that his counsel was deficient for neglecting his letters written in
Swahili. Munywe characterizes these letters as his complaints about the trial continuances and the
fact that his “key witness” would be unavailable if the trial was delayed any further. Br. of Pet’r
at 46. But the record shows that his counsel informed the trial court that Munywe had written at
least one letter in Swahili, following which the trial court provided Munywe the opportunity to
personally raise his concerns about the delay of his trial. But even if there were potentially other
letters on this same subject that Munywe’s counsel did not raise with the trial court, Munywe fails
to demonstrate what his counsel could have done differently, particularly where the trial court had
19 No. 58818-8-II
already noted Munywe’s objection to the timing of his trial. As a result, Munywe cannot
demonstrate deficient performance and this ineffective assistance of counsel claim fails.
Third, Munywe argues that his counsel was deficient for “abandoning” his oral motion to
dismiss on the first day of trial. Br. of Pet’r at 46. Munywe is incorrect. Munywe’s counsel was
out sick on the first day of trial, so the trial court deferred ruling on Munywe’s motion until his
counsel could appear. The next day on his client’s behalf, defense counsel re-raised the issue of
Munywe’s motion to dismiss. Yet, the trial court ruled that there was no violation. Not only did
Munywe’s counsel suggest that he agreed with the trial court’s ruling, he further stated that he had
declined to bring a similar motion himself because such a motion would be frivolous. Munywe
must overcome a “strong presumption” that this decision was reasonable, but he offers nothing
that meets this burden. See Grier, 171 Wn.2d at 33.
Fourth, Munywe points to the coughing juror and argues that his counsel was deficient for
failing to inquire into how much evidence this juror may have missed due to her health. But the
trial court individually questioned the juror about her coughing and whether she was able to listen
to the evidence and decided to leave her on the jury. Notwithstanding that this is a similar
argument to one he made in his direct appeal, Munywe fails to show what his counsel should have
done differently. Thus, Munywe has failed to establish a factual basis for defense counsel’s alleged
deficient performance related to this juror. See Rice, 118 Wn.2d at 886.
Because Munywe fails to meet his burden to establish deficient performance by his counsel
in each alleged incident, his claims for ineffective assistance of counsel fail.
20 No. 58818-8-II
VI. PROSECUTORIAL MISCONDUCT
Munywe argues that the State committed prosecutorial misconduct by misleading the trial
court in various ways, improperly collaborating with a DNA analyst to suppress potentially
exculpatory evidence, introducing a “falsified and fabricated” document into evidence, and
excluding statements made during his interrogation. Br. of Pet’r 49. We disagree.
When a petitioner makes a claim of prosecutorial misconduct in a PRP, they must show
actual and substantial prejudice from the prosecutor’s remarks. In re Pers. Restraint of Phelps,
190 Wn.2d 155, 166, 410 P.3d 1142 (2018) (when a prosecutorial misconduct claim is made in the
context of a PRP, the petitioner has an additional “hurdle” of showing actual and substantial
prejudice). This means showing that there was a substantial likelihood that the misconduct
affected the jury’s verdict. Id. at 172.
Here, Munywe does not explain or otherwise demonstrate how any of the State’s alleged
misconduct affected the jury’s verdict. For example, Munywe argues that the State mislead the
trial court by withholding crucial information about the status of DNA results from the Washington
State Police crime lab. But Munywe fails to explain how withheld DNA test results, if there were
any, would have had any impact on the verdict. As another example, Munywe argues that the
State introduced a falsified document (a fishing permit) into evidence, which he alleges did not
belong to him, but he does not explain any tangible connection of this document to the verdict.
Indeed, each of the claims he makes about the prosecutor’s alleged misconduct suffers from the
same absence of explanation. As a result, Munywe has not met his burden to demonstrate facts
that, if proven, would establish that he was actually and substantially prejudiced by any alleged
21 No. 58818-8-II
misconduct. See Phelps, 190 Wn.2d at 172; Rice, 118 Wn.2d at 886. Accordingly, Munywe’s
prosecutorial misconduct arguments necessarily fail.
CONCLUSION
Because Munywe has not shown he is entitled to collateral relief, we deny his PRP.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
PRICE, J. We concur:
CRUSER, C.J.
VELJACIC, J.