Personal Restraint Petition Of Theodore R. Rhone
Opinion
NOTICE: SLIP OPINION (not the court’s final written decision)
The opinion that begins on the next page is a slip opinion. Slip opinions are the written opinions that are originally filed by the court. A slip opinion is not necessarily the court’s final written decision. Slip opinions can be changed by subsequent court orders. For example, a court may issue an order making substantive changes to a slip opinion or publishing for precedential purposes a previously “unpublished” opinion. Additionally, nonsubstantive edits (for style, grammar, citation, format, punctuation, etc.) are made before the opinions that have precedential value are published in the official reports of court decisions: the Washington Reports 2d and the Washington Appellate Reports. An opinion in the official reports replaces the slip opinion as the official opinion of the court. The slip opinion that begins on the next page is for a published opinion, and it has since been revised for publication in the printed official reports. The official text of the court’s opinion is found in the advance sheets and the bound volumes of the official reports. Also, an electronic version (intended to mirror the language found in the official reports) of the revised opinion can be found, free of charge, at this website: https://www.lexisnexis.com/clients/wareports. For more information about precedential (published) opinions, nonprecedential (unpublished) opinions, slip opinions, and the official reports, see https://www.courts.wa.gov/opinions and the information that is linked there. For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. Filed Washington State Court of Appeals Division Two
August 23, 2022 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II In the Matter of the Personal Restraint of No. 54167-0-II (consolidated with No. 54487-3-II) THEODORE R. RHONE,
Petitioner. PUBLISHED OPINION
GLASGOW, C.J.—Theodore R. Rhone seeks relief from personal restraint imposed
following a 2005 conviction for first degree robbery. At trial, Rhone objected to the State’s use of
a peremptory strike to remove the only remaining Black venire member from his jury pool. The
trial court recognized this as a challenge under Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712,
90 L. Ed. 2d 69 (1986), found that Rhone failed to establish a prima facie case of purposeful
discrimination, and denied the challenge.
On appeal, Rhone asked the courts to recognize a bright-line rule that whenever the State
uses a peremptory challenge to strike the only or last remaining venire member of a cognizable
racial group, that action alone is sufficient to establish prima facie discrimination. In a fractured
opinion, the Washington Supreme Court denied Rhone’s request. But four dissenting justices
would have adopted the bright-line rule, and a fifth justice indicated they would support the
proposed bright-line rule going forward. Eventually, in City of Seattle v. Erickson, 188 Wn.2d 721,
398 P.3d 1124 (2017), the Supreme Court adopted the bright-line rule proposed by Rhone. He filed
a personal restraint petition (PRP), arguing this was a significant change in the law, material to his
conviction, which should apply retroactively. For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
No. 54167-0-II
The next year, the Supreme Court decided State v. Jefferson, 192 Wn.2d 225, 230, 429
P.3d 467 (2018) (plurality opinion), changing our state’s Batson inquiry to “ask whether an
objective observer could view race or ethnicity as a factor in the use of the peremptory strike,”
instead of whether the State purposefully discriminated on the basis of race. Rhone incorporated
Jefferson into his PRP. We dismissed the PRP under the mixed petition rule, and the Supreme
Court denied discretionary review.
Now, Rhone brings a new PRP and again argues that Erickson and Jefferson were
significant changes in the law, material to his conviction, which should apply retroactively. We
agree with Rhone that Erickson and Jefferson were significant changes in the law and that they are
material to his conviction. We also conclude that because Erickson and Jefferson established new
constitutional rules that are at least partly substantive, they should apply retroactively. Therefore,
Rhone’s PRP falls within RCW 10.73.100(6), and the one-year time bar does not apply.
Because this is a successive petition, however, we cannot review it. Because we conclude
this is a timely request for relief that has not previously been considered and determined on the
merits, we transfer Rhone’s PRP to the Supreme Court for consideration under RAP 16.4(d).
PROCEDURAL HISTORY
I. TRIAL AND DIRECT APPEAL
In 2005, Rhone, who is Black, was tried for first degree robbery, among other offenses,
after he went through a “drive-thru window[,] . . . displayed a gun[,] and demanded money for a
debt.” State v. Rhone, noted at 137 Wn. App. 1046, 2007 WL 831725, at *1 (Rhone I). Before the
trial began, Rhone, “acting pro se,” objected to the jury selection process on the ground that the
State had used a peremptory strike to remove the only remaining Black juror from the venire. Id.
2 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
No. 54167-0-II
at *3.1 Rhone personally addressed the court, saying, “‘It’s not a jury of my peers. I’m -- I mean,
I am an African-American [B]lack male, 48 years old. I would like someone of culture, of color,
that has -- perhaps may have had to deal with [improprieties] and so forth, to understand what’s
going on and what could be happening in this trial.’” State v. Rhone, 168 Wn.2d 645, 649, 229
P.3d 752 (2010) (Rhone II), abrogated by Erickson, 188 Wn.2d 721.2
The trial court found that Rhone failed to make a prima facie showing of purposeful racial
discrimination, as required by Batson, and it denied Rhone’s challenge. Rhone I, 2007 WL 831725,
at *3.3 The jury found Rhone guilty of possession of a controlled substance with intent to deliver,
unlawful possession of a firearm, first degree robbery, and bail jumping.
On direct appeal, Rhone proposed a bright-line rule: where the State peremptorily
dismisses the only or last remaining venire member of a cognizable racial group, the trial court
should always find a prima facie case of discrimination and move past the first step of the Batson
1 “The jury venire included two African Americans. One was excused for cause by agreement of both parties.” Rhone I, 2007 WL 831725, at *3. 2 Earlier judicial opinions used the term “African-American” to describe both Rhone and the peremptorily struck venire member. Rhone identified himself as “‘an African-American [B]lack male.’” Rhone II, 168 Wn.2d at 649. However, it is not clear from our record that the venire member was given an opportunity to self-identify. Because the term “African-American” implies a specific ancestry and nationality, we use the more inclusive term “Black” in this opinion.
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NOTICE: SLIP OPINION (not the court’s final written decision)
The opinion that begins on the next page is a slip opinion. Slip opinions are the written opinions that are originally filed by the court. A slip opinion is not necessarily the court’s final written decision. Slip opinions can be changed by subsequent court orders. For example, a court may issue an order making substantive changes to a slip opinion or publishing for precedential purposes a previously “unpublished” opinion. Additionally, nonsubstantive edits (for style, grammar, citation, format, punctuation, etc.) are made before the opinions that have precedential value are published in the official reports of court decisions: the Washington Reports 2d and the Washington Appellate Reports. An opinion in the official reports replaces the slip opinion as the official opinion of the court. The slip opinion that begins on the next page is for a published opinion, and it has since been revised for publication in the printed official reports. The official text of the court’s opinion is found in the advance sheets and the bound volumes of the official reports. Also, an electronic version (intended to mirror the language found in the official reports) of the revised opinion can be found, free of charge, at this website: https://www.lexisnexis.com/clients/wareports. For more information about precedential (published) opinions, nonprecedential (unpublished) opinions, slip opinions, and the official reports, see https://www.courts.wa.gov/opinions and the information that is linked there. For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. Filed Washington State Court of Appeals Division Two
August 23, 2022 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II In the Matter of the Personal Restraint of No. 54167-0-II (consolidated with No. 54487-3-II) THEODORE R. RHONE,
Petitioner. PUBLISHED OPINION
GLASGOW, C.J.—Theodore R. Rhone seeks relief from personal restraint imposed
following a 2005 conviction for first degree robbery. At trial, Rhone objected to the State’s use of
a peremptory strike to remove the only remaining Black venire member from his jury pool. The
trial court recognized this as a challenge under Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712,
90 L. Ed. 2d 69 (1986), found that Rhone failed to establish a prima facie case of purposeful
discrimination, and denied the challenge.
On appeal, Rhone asked the courts to recognize a bright-line rule that whenever the State
uses a peremptory challenge to strike the only or last remaining venire member of a cognizable
racial group, that action alone is sufficient to establish prima facie discrimination. In a fractured
opinion, the Washington Supreme Court denied Rhone’s request. But four dissenting justices
would have adopted the bright-line rule, and a fifth justice indicated they would support the
proposed bright-line rule going forward. Eventually, in City of Seattle v. Erickson, 188 Wn.2d 721,
398 P.3d 1124 (2017), the Supreme Court adopted the bright-line rule proposed by Rhone. He filed
a personal restraint petition (PRP), arguing this was a significant change in the law, material to his
conviction, which should apply retroactively. For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
No. 54167-0-II
The next year, the Supreme Court decided State v. Jefferson, 192 Wn.2d 225, 230, 429
P.3d 467 (2018) (plurality opinion), changing our state’s Batson inquiry to “ask whether an
objective observer could view race or ethnicity as a factor in the use of the peremptory strike,”
instead of whether the State purposefully discriminated on the basis of race. Rhone incorporated
Jefferson into his PRP. We dismissed the PRP under the mixed petition rule, and the Supreme
Court denied discretionary review.
Now, Rhone brings a new PRP and again argues that Erickson and Jefferson were
significant changes in the law, material to his conviction, which should apply retroactively. We
agree with Rhone that Erickson and Jefferson were significant changes in the law and that they are
material to his conviction. We also conclude that because Erickson and Jefferson established new
constitutional rules that are at least partly substantive, they should apply retroactively. Therefore,
Rhone’s PRP falls within RCW 10.73.100(6), and the one-year time bar does not apply.
Because this is a successive petition, however, we cannot review it. Because we conclude
this is a timely request for relief that has not previously been considered and determined on the
merits, we transfer Rhone’s PRP to the Supreme Court for consideration under RAP 16.4(d).
PROCEDURAL HISTORY
I. TRIAL AND DIRECT APPEAL
In 2005, Rhone, who is Black, was tried for first degree robbery, among other offenses,
after he went through a “drive-thru window[,] . . . displayed a gun[,] and demanded money for a
debt.” State v. Rhone, noted at 137 Wn. App. 1046, 2007 WL 831725, at *1 (Rhone I). Before the
trial began, Rhone, “acting pro se,” objected to the jury selection process on the ground that the
State had used a peremptory strike to remove the only remaining Black juror from the venire. Id.
2 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
No. 54167-0-II
at *3.1 Rhone personally addressed the court, saying, “‘It’s not a jury of my peers. I’m -- I mean,
I am an African-American [B]lack male, 48 years old. I would like someone of culture, of color,
that has -- perhaps may have had to deal with [improprieties] and so forth, to understand what’s
going on and what could be happening in this trial.’” State v. Rhone, 168 Wn.2d 645, 649, 229
P.3d 752 (2010) (Rhone II), abrogated by Erickson, 188 Wn.2d 721.2
The trial court found that Rhone failed to make a prima facie showing of purposeful racial
discrimination, as required by Batson, and it denied Rhone’s challenge. Rhone I, 2007 WL 831725,
at *3.3 The jury found Rhone guilty of possession of a controlled substance with intent to deliver,
unlawful possession of a firearm, first degree robbery, and bail jumping.
On direct appeal, Rhone proposed a bright-line rule: where the State peremptorily
dismisses the only or last remaining venire member of a cognizable racial group, the trial court
should always find a prima facie case of discrimination and move past the first step of the Batson
1 “The jury venire included two African Americans. One was excused for cause by agreement of both parties.” Rhone I, 2007 WL 831725, at *3. 2 Earlier judicial opinions used the term “African-American” to describe both Rhone and the peremptorily struck venire member. Rhone identified himself as “‘an African-American [B]lack male.’” Rhone II, 168 Wn.2d at 649. However, it is not clear from our record that the venire member was given an opportunity to self-identify. Because the term “African-American” implies a specific ancestry and nationality, we use the more inclusive term “Black” in this opinion. 3 Under a traditional Batson analysis, the defendant must first establish a prima facie case of purposeful discrimination by showing that they are “a member of a cognizable racial group,” “that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant’s race,” and that the facts and circumstances “raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race.” 476 U.S. at 96. Second, if the trial court finds that the defendant made this showing, “the burden shifts to the State to come forward with a neutral explanation for challenging [B]lack jurors.” Id. at 97. Third, the trial court will “determine if the defendant has established purposeful discrimination.” Id. at 98.
3 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
No. 54167-0-II
analysis. Id. at *6. This court explained, “We are generally hesitant to find discriminatory
motivation in numbers analysis alone.” Id. at *7. We recognized, “[I]t is possible that a
prosecutor’s dismissal of the only eligible member of a constitutionally cognizable group can
imply a discriminatory motive,” but ultimately we concluded that, on the record presented, Rhone
failed to show the trial court abused its discretion in denying his Batson challenge. Id. We affirmed
all of Rhone’s convictions. Id. at *14.
The Supreme Court accepted review. In its lead opinion, signed by four justices, the court
concluded that “a bright-line rule superseding a trial court’s discretion in determining whether a
defendant has established a prima facie case of discrimination is inconsistent with Batson.” Rhone
II, 168 Wn.2d at 653. A dissenting opinion, also signed by four justices, would have adopted the
“bright line rule that a defendant establishes a prima facie case of discrimination when, as here,
the record shows that the State exercised a peremptory challenge against the sole remaining venire
member of the defendant’s constitutionally cognizable racial group.” Id. at 659 (Alexander, J.,
dissenting). The ninth justice wrote a two-sentence concurrence stating, “I agree with the lead
opinion in this case. However, going forward, I agree with the rule advocated by the dissent.” Id.
at 658 (Madsen, C.J., concurring). The court therefore affirmed. Id. (lead opinion and Madsen,
C.J., concurring).
II. PRIOR PRPS
Rhone’s convictions became final in 2010. Since 2010, Rhone has filed several PRPs. One
PRP challenged the trial court’s denial of Rhone’s motion to suppress evidence seized during a
warrantless search of his car. The Supreme Court granted Rhone’s PRP and remanded for our
reconsideration of the suppression order in light of new precedent from both the federal and state
4 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
No. 54167-0-II
supreme courts.4 State v. Rhone, No. 46960-0-II, slip op. at 5 (Wash. Ct. App. July 6, 2016)
(unpublished), https://www.courts.wa.gov/opinions/pdf/D2%2046960-0-II%20Unpublished%20
Opinion.pdf (Rhone III). In light of these new cases, we concluded that the warrantless search of
Rhone’s car incident to his arrest was unlawful “because Rhone had been secured, he could not
access the interior of the vehicle, he posed no safety risk, and the vehicle contained no evidence
that could be concealed or destroyed.” Id. at 8. We held this error was not harmless with respect
to Rhone’s convictions for unlawful possession of a controlled substance with intent to deliver and
unlawful possession of a firearm, and we remanded for the trial court to vacate those two
convictions. Id. at 12-13. We did not disturb Rhone’s conviction for first degree robbery. Id. at 12.
While Rhone’s case was on remand, the Supreme Court decided Erickson, officially
adopting “the bright-line rule first espoused by the dissent in [Rhone II].” 188 Wn.2d at 724. Rhone
filed a CrR 7.8 motion to vacate his new judgment and sentence, arguing Erickson constituted a
significant change in the law that was material to his robbery conviction. The trial court transferred
the CrR 7.8 motion, along with a separate motion for a new trial based on a jury instruction issue,
“to this court as a single PRP.” State v. Rhone, No. 51517-2-II (consolidated with No. 51797-3-
II), slip op. at 6 (Wash. Ct. App. Dec. 17, 2019) (unpublished), https://www.courts.wa.gov/
opinions/pdf/D2%2051517-2-II%20Unpublished%20Opinion.pdf (Rhone IV). Rhone also sought
4 This new precedent included Arizona v. Gant, 556 U.S. 332, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009), State v. Snapp, 174 Wn.2d 177, 275 P.3d 289 (2012), and State v. Patton, 167 Wn.2d 379, 219 P.3d 651 (2009).
5 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
No. 54167-0-II
to directly appeal his new judgment and sentence. Id. We consolidated that direct appeal with the
transferred PRP. Id.5
Rhone argued “recent Washington cases applying Batson” constituted a material and
significant change in the law that fell within an exception to the one-year time bar for collateral
attacks. Id. at 12; see RCW 10.73.090(1), .100(6). But we concluded Rhone’s jury instruction
claim was time barred and therefore dismissed his entire PRP as a mixed petition. Rhone IV,
51517-2-II, slip op. at 13. “We accordingly [did] not address Rhone’s remaining claims related to
his Batson challenge.” Id.
The Supreme Court denied discretionary review. The deputy commissioner clarified in his
ruling denying review, “I do not consider the change in law issue properly raised here. . . . If Mr.
Rhone wishes to argue the change in law issue, he may do so in a personal restraint petition that
raises solely that ground for relief.” Ruling Den. Review, In re Pers. Restraint of Rhone, No.
98109-4, at 4 n.2 (Wash. May 20, 2020); see also In re Pers. Restraint of Hankerson, 149 Wn.2d
695, 702, 72 P.3d 703 (2003) (explaining that a petitioner may refile a timely claim dismissed as
part of a “mixed petition” under RCW 10.73.100 “because by definition any claim that is not time
barred may be refiled without danger of untimeliness”).
5 Rhone again raised the claim that Erickson was a significant change in the law and an exception to the one-year time bar for collateral relief in a statement of additional grounds for review, along with a claim that GR 37, a new court rule intended to “eliminate the unfair exclusion of potential jurors based on race or ethnicity,” was also a significant change in the law and an exception to the one-year time bar. GR 37(a). After Jefferson was decided, Rhone’s counsel filed a supplemental brief, arguing Erickson and Jefferson were both material and significant changes in the law.
6 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
No. 54167-0-II
III. CURRENT PRP
Rhone then submitted two new PRPs, each arguing that Erickson and Jefferson were
significant changes in the law, material to his conviction, which should apply retroactively. We
consolidated Rhone’s PRPs.
ANALYSIS
We will grant appropriate relief where a petitioner shows that they are under unlawful
restraint. RAP 16.4(a). Restraint is unlawful if the petitioner’s underlying conviction was obtained
in violation of the constitution or “[t]here has been a significant change in the law, whether
substantive or procedural, which is material to the conviction, . . . and sufficient reasons exist to
require retroactive application of the changed legal standard.” RAP 16.4(c)(2), (4). But we must
first determine whether the PRP is untimely or successive.
I. TIMELINESS
A collateral attack cannot be filed “more than one year after the judgment becomes final if
the judgment and sentence is valid on its face and was rendered by a court of competent
jurisdiction,” RCW 10.73.090(1), unless one of six specific exceptions applies, see RCW
10.73.100. One exception applies where “[t]here has been a significant change in the law, whether
substantive or procedural, which is material to the conviction, . . . [and a court] determines that
sufficient reasons exist to require retroactive application of the changed legal standard.” RCW
10.73.100(6). When these circumstances exist, “there is no time bar.” In re Pers. Restraint of
Garcia-Mendoza, 196 Wn.2d 836, 841, 479 P.3d 674 (2021).
7 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
No. 54167-0-II
Rhone submitted this PRP more than one year after his conviction became final. But he
argues it is timely because it falls under RCW 10.73.100(6)—it is based on a significant change in
the law that is material to his conviction and should apply retroactively. We agree.6
A. Significant Change in the Law
A “significant change in the law” for purposes of RCW 10.73.100(6) occurs “‘when an
intervening appellate decision overturns a prior appellate decision that was determinative of a
material issue.’” In re Pers. Restraint of Ali, 196 Wn.2d 220, 233, 474 P.3d 507 (2020) (quoting
State v. Miller, 185 Wn.2d 111, 114, 371 P.3d 528 (2016)), cert. denied, Washington v. Ali, 141 S.
Ct. 1754 (2021).
Until Erickson was decided, the rule articulated by the lead opinion in Rhone II, that
whether the defendant established a prima facie case of discrimination is always a matter of trial
court discretion, remained the applicable rule in Washington. See State v. Meredith, 178 Wn.2d
180, 182, 306 P.3d 942 (2013), abrogated by Erickson, 188 Wn.2d 721. Erickson then adopted the
Rhone II dissent’s bright-line rule and held that “the peremptory strike of a juror who is the only
6 Our analysis follows a slightly different path than the one advocated for in Rhone’s PRP. Rhone argues that Erickson and Jefferson were significant changes in the law because they abrogated Rhone II, but they were not new rules requiring a full retroactivity analysis under Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989), “because under the equal protection clause it has always been impermissible to make a race based strike of a person of color.” PRP at 2; see also id. at 16-20 (applying In re Pers. Restraint of Yung-Cheng Tsai, 183 Wn.2d 91, 351 P.3d 138 (2015)); cf. Crittenden v. Chappell, 804 F.3d 998, 1007-09 (9th Cir. 2015) (explaining a rule is not new under Teague where it clarifies a step of the existing Batson analysis). One might also argue that because five justices expressed their willingness to adopt Rhone’s proposed bright- line rule for future cases when Rhone II was decided, Erickson did not establish a new rule. See Erickson, 188 Wn.2d at 732 (“We now follow our signal in Rhone and adopt a bright-line rule.”). It may be possible to conclude that the rules announced in Erickson and Jefferson did not break new ground. Nevertheless, for the reasons discussed below, we conclude these rules were new under Teague and engage in a retroactivity analysis.
8 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
No. 54167-0-II
member of a cognizable racial group constitutes a prima facie showing of racial discrimination
requiring a full Batson analysis by the trial court.” 188 Wn.2d at 724. In doing so, it “alter[ed] the
Batson framework” and abrogated several decisions, including Rhone II. Id. at 734. Because it
abrogated decisions that previously determined how trial courts responded to Batson challenges,
Erickson was a significant change in the law.
“The ‘significant change’ language [of RCW 10.73.100(6)] is intended to reduce
procedural barriers to collateral relief in the interests of fairness and justice.” In re Pers. Restraint
of Yung-Cheng Tsai, 183 Wn.2d 91, 104, 351 P.3d 138 (2015). A failure to raise an “apparently
unavailable argument cannot render [the petitioner’s] PRP procedurally barred.” Id. at 107. We
briefly note that although he did not receive the benefit of it, Rhone did raise this exact argument
on direct review. See Rhone II, 168 Wn.2d at 652. He proposed the bright-line rule that the
Supreme Court eventually adopted. And although it was Rhone’s counsel who argued specifically
for the bright-line rule on appeal, it was Rhone himself who objected when the State struck the
only remaining Black venire member from his jury pool. See id. at 648-49. Accordingly, this case
in particular compels us to conclude that “the interests of fairness and justice” are served by
classifying this change in the law as significant. Yung-Cheng Tsai, 183 Wn.2d at 104.
Jefferson was also a significant change in the law because it again changed how trial courts
must respond to Batson challenges. Addressing the impact of its decision, the lead opinion
explained, “[W]e now modify our three-step Batson test by replacing Batson’s current inquiry at
step three with a new inquiry.” Jefferson, 192 Wn.2d at 229 (lead opinion); see also id. at 252 (Yu,
J., concurring) (agreeing with the lead opinion’s analysis). Before Jefferson, the trial court’s
9 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
No. 54167-0-II
application of the third step was still governed solely by the United States Supreme Court’s
direction in Batson.
B. Materiality
Erickson and Jefferson are both material to Rhone’s conviction. Before his trial in 2005,
Rhone challenged the jury selection process. On direct appeal, he argued that the prosecutor’s use
of a peremptory strike to remove the last Black venire member was enough to establish a prima
facie case of racial discrimination. At the time, the trial court had discretion to find prima facie
discrimination on this basis, but its conclusion that Rhone failed to show discrimination was not
clearly erroneous. If Rhone’s case occurred post-Erickson, the trial court would be required to find
prima facie evidence of discrimination based on Rhone’s objection and to conduct a full Batson
analysis. Under Erickson, Rhone would have received the benefit of a more thorough investigation
into the jury selection process used in his case.
Jefferson changed what this investigation would entail. It shifted “the relevant question”
from whether the proponent of the strike was purposefully discriminating on the basis of race to
whether “‘an objective observer could view race or ethnicity as a factor in the use of the
peremptory challenge.’” Jefferson, 192 Wn.2d at 249 (lead opinion); see also id. at 252 (Yu, J.,
concurring). This change is material to Rhone’s conviction because, as the Supreme Court has now
recognized, “differential treatment of the sole African-American juror . . . ‘could’ support an
inference of implicit bias,” even if it were not enough to establish purposeful discrimination. Id. at
250-51.
10 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
No. 54167-0-II
C. Retroactivity
When determining whether a rule applies retroactively, Washington courts apply the test
articulated by the United States Supreme Court in Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060,
103 L. Ed. 2d 334 (1989). See Ali, 196 Wn.2d at 236. “Under Teague, a new rule applies
retroactively on collateral review only if it is a new substantive rule of constitutional law or a
watershed rule of criminal procedure.” Id.
1. Erickson and Jefferson announced new constitutional rules
A rule is “new” for purposes of a Teague analysis if it breaks new ground or imposes a new
obligation. Yung-Cheng Tsai, 183 Wn.2d at 104. For example, in State v. Houston-Sconiers, 188
Wn.2d 1, 9, 391 P.3d 409 (2017), the Supreme Court announced that trial courts “must consider
youth” when sentencing juveniles in adult court and “must have discretion to impose any
exceptional sentence downward based on youth.” Ali, 196 Wn.2d at 236. This was a “new” rule
because reasonable jurists could previously disagree on whether trial courts had discretion to
depart from a standard range sentence for a juvenile defendant and whether they should consider
youthfulness when sentencing; “no prior precedent required courts to do so.” Id.
Prior to Erickson, trial courts could, in their discretion, find that a criminal defendant
established a prima facie case of discrimination based on the State’s decision to strike the only
member of a cognizable racial group from the jury pool, but the trial court was not required to do
so. See Rhone II, 168 Wn.2d at 653. Erickson then held that under these circumstances, trial courts
“must recognize a prima face case of discriminatory purpose.” 188 Wn.2d at 734 (emphasis added).
Thus, Erickson announced a new rule in a manner similar to Houston-Sconiers. And the new rule
was constitutional. The court justified its adoption by stating that “‘[t]he Constitution forbids
11 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
No. 54167-0-II
striking even a single prospective juror for a discriminatory purpose.’” Id. at 732 (alteration in
original) (internal quotation marks omitted) (quoting Snyder v. Louisiana, 552 U.S. 472, 478, 128
S. Ct. 1203, 170 L. Ed. 2d 175 (2008)).
The lead opinion in Jefferson also “create[d] a new constitutional rule.” 192 Wn.2d at 255
(Madsen, J., dissenting in part). There, the Supreme Court altered the third step of the Batson
analysis. The trial court is no longer tasked only with determining whether the proponent of the
strike purposefully discriminated on the basis of race; it must now consider whether purposeful
discrimination or implicit bias influenced the peremptory strike. Id. at 249 (lead opinion); see also
id. at 252 (Yu, J., concurring). Like the rule announced in Erickson, this rule imposed a new
obligation on the trial court. The trial court’s inquiry changed from a factual one to an objective
one, considering whether “the average, reasonable person . . . who is aware of the history of explicit
race discrimination in America and aware of how that impacts our current decision-making in
nonexplicit, or implicit, unstated, ways” could view race as a factor influencing the strike. Id. at
249-50. The Supreme Court correspondingly changed the appellate standard of review from a
deferential “‘clearly erroneous’” standard to de novo review. Id. at 250. This alteration was
intended “to meet the goals of Batson” and eradicate the “evil of racial discrimination,” consistent
with the equal protection guarantee of the Fourteenth Amendment to the United States
Constitution. Id. at 249.
2. Erickson and Jefferson announced partly substantive rules
Erickson and Jefferson announced partly substantive rules because rules directed at
eliminating racial discrimination in jury selection function to eliminate racial discrimination in
jury verdicts. As the United States Supreme Court has recognized, “[D]iscriminatory selection
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procedures make ‘juries ready weapons for officials to oppress those accused individuals’” who
are members of underrepresented populations. Batson, 476 U.S. at 86-87 n.8 (quoting Akins v.
Texas, 325 U.S. 398, 408, 65 S. Ct. 1276, 89 L. Ed. 1692 (1945) (Murphy, J., dissenting)). In
contrast, juries whose diverse members are not excluded serve as a check on government power,
improve faith in the judicial system, and most importantly, provide for more accurate verdicts.
Teague defined “procedural rules” as those “‘designed to enhance the accuracy of a
conviction or sentence by regulating the manner of determining the defendant’s culpability.’” Ali,
196 Wn.2d at 237 (internal quotation marks omitted) (quoting Montgomery v. Louisiana, 577 U.S.
190, 201, 136 S. Ct. 718, 193 L. Ed. 2d 599 (2016)). It defined “substantive rules” as those that
“‘set forth categorical constitutional guarantees that place certain criminal laws and punishments
altogether beyond the State’s power to impose,’” including “‘rules prohibiting a certain category
of punishment for a class of defendants because of their status or offense.’” Id. (internal quotation
marks omitted) (quoting Montgomery, 577 U.S. at 201).
Criminal defendants are guaranteed the right to trial by an impartial jury as a manner of
determining their guilt. U.S. CONST. amend. VI, XIV; WASH. CONST. art. I, §§ 21, 22. Dissenting
from the United States Supreme Court’s decision not to apply Batson retroactively, Justice
Thurgood Marshall wrote that “where the prosecution uses its peremptory challenges to cull
[B]lack and Hispanic jurors from the jury empaneled for the trial of a [B]lack defendant, the threat
to the accuracy of the trial is significant and unacceptable.” Allen v. Hardy, 478 U.S. 255, 263-64,
106 S. Ct. 2878, 92 L. Ed. 2d 199 (1986) (Marshall, J., dissenting). We agree.
Regardless of the defendant’s race, studies have shown that “[d]iverse juries have longer
deliberations, discuss more case facts, make fewer inaccurate statements, and members are more
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No. 54167-0-II
likely to correct inaccurate statements. In short, jury and jury pool diversity impact the equity and
justice of jury verdicts.” WASH. SUP. CT. GENDER & JUSTICE COMM’N, 2021: HOW GENDER AND
RACE AFFECT JUSTICE NOW: FINAL REPORT 131 (Sept. 2021) (2021 Gender Justice Study).
“When any large and identifiable segment of the community is excluded from jury service,
the effect is to remove from the jury room qualities of human nature and varieties of human
experience, the range of which is unknown and perhaps unknowable.” Peters v. Kiff, 407 U.S. 493,
503, 92 S. Ct. 2163, 33 L. Ed. 2d 83 (1972) (plurality opinion). “It is not necessary to assume that
the excluded group will consistently vote as a class in order to conclude, as we do, that its exclusion
deprives the jury of a perspective on human events that may have unsuspected importance in any
case that may be presented.” Id. at 503-04. “Jurors tend to rely on their lived experiences when
participating in jury deliberations; therefore, having greater perspectives can yield a discussion
that is more well-balanced.” Peter A. Collins & Brooke Miller Gialopsos, Answering the Call: An
Analysis of Jury Pool Representation in Washington State, 22 CRIMINOLOGY, CRIM. JUST., L. &
SOC’Y no. 1, 2021, at 6.
Jury selection is procedural in that it influences how a defendant’s culpability is
determined, but the jury trial right is “no mere procedural formality.” Blakely v. Washington, 542
U.S. 296, 306, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). It is “a fundamental reservation of power
in our constitutional structure” that “ensures the people’s ultimate control” in the justice system.
Id. The jury trial right “finds its roots in the core principles upon which this nation was founded.”
State v. Evans, 154 Wn.2d 438, 445, 114 P.3d 627 (2005). And the process of jury selection
implicates multiple foundational constitutional rights, including equal protection and due process.
See Peters, 407 U.S. at 498 (plurality opinion) (recognizing that discrimination in jury selection
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“offends a number of related constitutional values”). Our Supreme Court has accordingly
recognized that where new rules impacting “juror selection procedures” also affect “substantial
constitutional rights,” they are “partly substantive.” Jefferson, 192 Wn.2d at 248-49 (lead opinion);
see also id. at 252 (Yu, J., concurring). Although the Supreme Court made this determination when
analyzing whether GR 37 should apply retrospectively as a remedial statute, it went on to
incorporate the essence of GR 37 into our constitutional analysis under Batson. If GR 37 is partly
substantive, a constitutional rule modeled on GR 37 must also be partly substantive.
Discriminatory jury selection “violates a defendant’s right to equal protection because it
denies [them] the protection that a trial by jury is intended to secure.” Batson, 476 U.S. at 86.
Although the equal protection clause does not guarantee a jury with persons of the defendant’s
own race, it does provide the defendant with “the right to be tried by a jury whose members are
selected pursuant to nondiscriminatory criteria.” Id. at 85-86. And in addition to violating the
defendant’s equal protection right, race-based peremptory strikes violate “the equal protection
rights of the excluded jurors who are denied a significant opportunity to participate in civic life.”
State v. Rhodes, 82 Wn. App. 192, 195, 917 P.2d 149 (1996). Requiring courts to be sensitive to
racial discrimination in peremptory strikes “enforces the mandate of equal protection and furthers
the ends of justice.” Batson, 476 U.S. at 99; see also Erickson, 188 Wn.2d at 727 (citing the
Washington Constitution’s equal protection guarantee when deciding whether Erickson had
established “a prima facie case of racial discrimination in violation of equal protection”).
Additionally, it is unconstitutional to deprive anyone of their liberty “without due process
of law.” U.S. CONST. amend. XIV; WASH. CONST. art. I, § 3. “‘A fair trial in a fair tribunal is a
basic requirement of due process.’” Peters, 407 U.S. at 501 (plurality opinion) (quoting In re
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No. 54167-0-II
Murchison, 349 U.S. 133, 136, 75 S. Ct. 623, 99 L. Ed. 942 (1955)). “[A] State cannot, consistent
with due process, subject a defendant to indictment or trial by a jury that has been selected in an
arbitrary and discriminatory manner.” Id. at 502 (plurality opinion). “‘Not only should there be a
fair trial, but there should be no lingering doubt about it.’” State v. Davis, 141 Wn.2d 798, 825, 10
P.3d 977 (2000) (quoting State v. Parnell, 77 Wn.2d 503, 508, 463 P.2d 134 (1969), abrogated on
other grounds by State v. Fire, 145 Wn.2d 152, 34 P.3d 1218 (2001)).
Rules altering the Batson framework are substantive because they safeguard these
fundamental constitutional rights and because they function to put discriminatory verdicts,
particularly for defendants of color, beyond the State’s power to impose. Typically, substantive
rules, as defined by Teague, prohibit a certain punishment for a certain “‘class of defendants,’”
such as prohibiting mandatory life without parole sentences for juveniles. Ali, 196 Wn.2d at 237
(internal quotation marks omitted) (quoting Montgomery, 577 U.S. at 201); see also Montgomery,
577 U.S. at 206. Unlike this example, racial discrimination in jury selection violates any
defendant’s constitutional rights, regardless of the defendant’s race and the ultimate punishment
imposed. For example, in Peters, the United States Supreme Court concluded that if the State
systematically excluded Black persons from a white petitioner’s jury, then the petitioner “was
indicted and convicted by tribunals that fail to satisfy the elementary requirements of due process,
and neither the indictment nor the conviction can stand.” 407 U.S. at 505 (plurality opinion); see
also id. at 507 (White, J., concurring in judgment) (concurring with decision to permit white
petitioner to challenge his conviction because the exclusion of any jurors based on race “reflects
the central concern of the Fourteenth Amendment with racial discrimination”). And again,
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No. 54167-0-II
improper exclusion from a jury based on race violates the equal protection rights of the potential
juror, just as it violates the rights of the criminal defendant.
Yet, it is not unheard of for states to use juries to oppress people of color specifically. See,
e.g., Ramos v. Louisiana, ___ U.S. ___, 140 S. Ct. 1390, 1394, 206 L. Ed. 2d 583 (2020) (“Adopted
in the 1930s, Oregon’s rule permitting nonunanimous verdicts can be . . . traced to the rise of the
Ku Klux Klan and efforts to dilute ‘the influence of racial, ethnic, and religious minorities on
Oregon juries.’” (quoting State v. Williams, No. 15-CR-58698 (C. C. Ore., Dec. 15, 2016), App.
104)); Thomas Ward Frampton, The Jim Crow Jury, 71 VAND. L. REV. 1593, 1595 (2018) (“Across
the South, the exclusion of [B]lack jurors from the jury box, in tandem with the exclusion of
[B]lack voters from the ballot box, served as a key lever for the reassertion of white supremacy. .
. . [T]he jury box continues to reflect and reproduce racial hierarchies in the United States.”).
Unless its members are “drawn from the community,” a jury cannot “perform its intended function
as a check on official power.” Batson, 476 U.S. at 86-87 n.8.
This is not to say that the oppression is always intentional or purposeful. “[R]ace can
subconsciously motivate a peremptory challenge that the attorney genuinely believes is race-
neutral.” State v. Saintcalle, 178 Wn.2d 34, 87-88, 309 P.3d 326 (2013) (González, J., concurring),
abrogated by Erickson, 188 Wn.2d 721. In practice, “[w]ith limited information and time, and a
lack of any reliable way to determine the subtle biases of each prospective juror, attorneys tend to
rely heavily on stereotypes and generalizations in deciding how to exercise peremptory
challenges.” Id. at 81. Studies from various jurisdictions have found that, “even after controlling
for numerous other potentially relevant factors, race remains highly determinative of peremptory
usage.” Id. at 89. In Batson, the Court specified that purposeful discrimination denied a defendant
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equal protection and a fair jury trial. See 476 U.S. at 86. But our Supreme Court has since
recognized that “discrimination in this day and age is frequently unconscious and less often
consciously purposeful. That does not make it any less pernicious.” Saintcalle, 178 Wn.2d at 48-
49.
As mentioned above, we know that jury diversity impacts jury verdicts, and this is
especially true for defendants of color. Louisiana’s prior practice of allowing nonunanimous jury
verdicts provided a unique opportunity to understand the impact of jury diversity on trial outcomes.
One study showed that under the nonunanimous jury verdict system, “[B]lack jurors [were]
significantly overrepresented among those jurors casting ballots for ‘not guilty’ verdicts while
white jurors [were] significantly underrepresented” in this group. Frampton, supra, at 1622. And
Black defendants were more likely to be convicted by a nonunanimous verdict, meaning “one or
two jurors still had reasonable doubts.” Id. at 1640. Our state’s Gender and Justice Commission
has also highlighted research showing that “juries with jurors of color were less punitive against
Black and Latinx defendants than all-white juries.” 2021 Gender Justice Study 134. Thus, while
alterations to the Batson framework do not draw lines around a specific class of defendants, they
do serve to protect defendants of color in particular from disproportionate punishment. Such rules
are designed to place convictions that are influenced in whole or in part by the defendant’s race
categorically out of reach. In this way, they are partly substantive.
Moreover, because discrimination in jury selection does not affect only the individual
criminal defendant and their trial, rules regulating jury selection cannot be merely procedural.
While it is true that when the State discriminates in jury selection, “the threat to the accuracy of
the trial is significant and unacceptable,” Allen, 478 U.S. at 264 (Marshall, J., dissenting), it is also
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true that when the State discriminates in jury selection, it commits an additional harm and
“unconstitutionally discriminate[s] against the excluded juror,” Batson, 476 U.S. at 87; see also
Jefferson, 192 Wn.2d at 229 (“We need to do better to achieve the objectives of protecting litigants’
rights to equal protection of the laws and jurors’ rights to participate in jury service free from racial
discrimination.” (emphasis added) (footnote omitted)). The harm to the struck juror is separate and
distinct from the harm of an inaccurate conviction.
And the harm further “extends beyond that inflicted on the defendant and the excluded
juror to touch the entire community.” Batson, 476 U.S. at 87. When the State discriminates in jury
selection, it “undermine[s] public confidence in the fairness of our system of justice.” Id.; see also
Meredith, 178 Wn.2d at 188 (González, J., dissenting) (“If people are excluded from jury service
because of color or creed, we risk eroding faith in the justice of our democracy.”). “The jury trial
is not only the right of the accused[;] it also further assures governance by the people.” Evans, 154
Wn.2d at 445. Therefore, when we alter the rules used to combat racial discrimination in jury
selection, the impact of that alteration extends well beyond the manner for determining guilt in
any individual case.
Racial bias is “a familiar and recurring evil” that “implicates unique historical,
constitutional, and institutional concerns.” Peña-Rodriguez v. Colorado, 580 U.S. 206, 137 S. Ct.
855, 868, 197 L. Ed. 2d 107 (2017). And the right to a fair trial by an unbiased jury is fundamental,
impacting the core of our justice system. Accordingly, rules addressing racial bias in jury selection,
though they necessarily involve procedural mechanisms, must be viewed as fundamentally
protective of substantive rights.
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The idea that some constitutional rules may be substantive in nature but require procedural
mechanisms is not a novel one. In Ali, the Supreme Court explained that the rule announced in
Houston-Sconiers was substantive because it put a category of punishments “beyond courts’
authority to impose”—adult standard range sentences for juveniles with diminished culpability.
196 Wn.2d at 239. However, Houston-Sconiers also “announced a procedural component as a
mechanism to protect the substantive rule” when it required that trial courts exercise discretion
and meaningfully consider youthfulness when sentencing. Id. at 240. The Supreme Court reasoned
that without this procedural mechanism, the substantive protection “ceases to exist.” Id. But this
“does not transform Houston-Sconiers’s substantive rule into a procedural rule.” Id.; see also
Montgomery, 577 U.S. at 210 (rejecting an argument that “conflate[d] a procedural requirement
necessary to implement a substantive guarantee with a rule that ‘regulate[d] only the manner of
determining the defendant’s culpability’” (second alteration in original) (some emphasis added
and some omitted) (quoting Schriro v. Summerlin, 542 U.S. 348, 353, 124 S. Ct. 2519, 159 L. Ed.
2d 442 (2004))).
Erickson and Jefferson necessarily announced rules with “procedural component[s]”
because without more rigorous scrutiny of our jury selection procedures, the substantive
guarantees of our constitutional rights to an impartial jury trial, equal protection, and due process
of law would “cease[] to exist.” Ali, 196 Wn.2d at 240. That reality does not preclude these rules
from being categorized as substantive. Because the rules announced in Erickson and Jefferson
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governing jury selection are at least partly substantive, we conclude Rhone’s PRP falls within the
exception to the one year time bar under RCW 10.73.100(6).7
II. SUCCESSIVE PETITIONS
Even though we conclude Rhone’s PRP is timely, we must transfer it to the Supreme Court
for review if it is a successive petition that raises new grounds for relief. See In re Pers. Restraint
of Bell, 187 Wn.2d 558, 562, 387 P.3d 719 (2017). Rhone argues his PRP is “not a successive
petition because no court has previously considered the merits of [his] arguments.” PRP at 7; see
also Br. of Pet’r at 5. This claim confuses the definition of a “successive petition” with the
definition of “similar relief” under RAP 16.4(d). Rhone has previously filed PRPs, including one
where Rhone argued that Erickson and Jefferson constituted significant changes in the law that
were material to his robbery conviction and should be applied retroactively. Accordingly, this
7 We recognize the United States Supreme Court has consistently refused to apply new constitutional rules affecting juries retroactively, despite the “momentous and consequential” nature of those rules. Edwards v. Vannoy, ___ U.S. ___, 141 S. Ct. 1547, 1559, 209 L. Ed. 2d 651 (2021). We also recognize our ability to take a different path under state law. See id. at 1559 n.6 (limiting the opinion’s application to federal collateral review); see also, e.g., State v. Waldron, 2021-0512, p. 9-10 (La. App. 4 Cir. 1/24/22), 334 So.3d 844, 850 (“But rather than simply follow, or abandon, Teague in determining retroactivity, this Court takes a nuanced approach to consider this particular rule of criminal procedure under Louisiana law and within Louisiana’s history.”); State v. Sandifer, 54,103, p. 14 (La. App. 2 Cir. 12/15/21), 330 So.3d 1270, 1278-79 (Hunter, J., concurring) (insisting the rule prohibiting nonunanimous jury verdicts should apply retroactively under state law because of “the racial bias at the root of the nonunanimous jury provision” and “the fundamental nature of the right to jury trial”). We also recognize that “the Washington Constitution provides greater protection for jury trials than is provided in the federal constitution.” State v. Hicks, 163 Wn.2d 477, 492, 181 P.3d 831 (2008).
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petition is successive. But we agree with Rhone that the merits of his claim have not previously
been considered. Therefore, we must transfer his petition to the Supreme Court.8
“If a person has previously filed a [PRP], the court of appeals will not consider the petition
unless the person certifies that [they have] not filed a previous petition on similar grounds, and
shows good cause why [they] did not raise the new grounds in the previous petition.” RCW
10.73.140. If we determine the petitioner has “previously raised the same grounds for review,” we
must dismiss the petition. Id. However, this statutory bar to successive petitions applies only to the
Court of Appeals. In re Pers. Restraint of Martinez, 171 Wn.2d 354, 362, 256 P.3d 277 (2011).
RAP 16.4(d) governs successive petitions more generally. It provides, “No more than one
petition for similar relief on behalf of the same petitioner will be entertained without good cause
shown.” RAP 16.4(d). “A successive petition seeks ‘similar relief’ within the meaning of RAP
16.4(d) if it raises matters that have been previously heard and determined on the merits.” Bell,
187 Wn.2d at 563. In Bell, the petitioner had raised the same claim in prior petitions, but their
claim had not been heard or determined on the merits because the Court of Appeals dismissed the
prior petitions—including one dismissal based on a violation of the mixed petition rule. Id. at 564,
564 n.1. The Supreme Court therefore considered the petitioner’s claim to be “new” for purposes
of RAP 16.4(d). Id. at 564. “[T]here is no good cause prerequisite for transfer to [the Supreme
Court] of a petition raising new grounds for relief.” Id. at 563.
Like the petitioner in Bell, Rhone has previously raised a claim that recent changes in our
state law framework for applying Batson are significant, material to his conviction, and should be
8 The State’s brief does not address whether Rhone’s PRP is a successive petition that requests similar or new relief.
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applied retroactively. But we dismissed that PRP under the mixed petition rule, and the Supreme
Court denied review. See Rhone IV, No. 51517-2-II, slip op. at 13 (“We accordingly do not address
Rhone’s remaining claims related to his Batson challenge.”); Ruling Den. Review, In re Pers.
Restraint of Rhone, No. 98109-4, at 4 n.2 (Wash. May 20, 2020) (“I do not consider the change in
law issue properly raised here.”). Rhone’s current claim has not been previously heard or
determined on the merits. We therefore conclude that Rhone’s PRP is successive but raises a new
ground for relief for purposes of RAP 16.4(d). Accordingly, having determined the petition is
timely, we transfer it to the Supreme Court for review.
CONCLUSION
We conclude Rhone’s PRP is timely but successive. We transfer it to the Supreme Court
for review.
Glasgow, C.J. I concur:
Veljacic, J.
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MAXA, J. (dissenting) – I fully appreciate the majority’s interest in providing a remedy in
long-past cases in which the use of peremptory challenges may have violated our Supreme
Court’s new rules for applying Batson in City of Seattle v. Erickson, 188 Wn.2d 721, 734, 398
P.3d 1124 (2017) and State v. Jefferson, 192 Wn.2d 225, 249, 429 P.3d 467 (2018). And I
completely agree with the majority’s excellent discussion of the pernicious effects of historical
racial discrimination in jury selection. As our Supreme Court has noted, “Racial discrimination
in the qualification or selection of jurors offends the dignity of persons and the integrity of the
courts, and permitting such exclusion in an official forum compounds the racial insult inherent in
judging a citizen by the color of his or her skin.” State v. Saintcalle, 178 Wn.2d 34, 42, 309 P.3d
326 (2013) (lead opinion).
However, the majority opinion simply is inconsistent with the framework adopted by our
Supreme Court for evaluating when significant changes in the law can be applied retroactively.
Under RCW 10.73.090(1), a petitioner generally must file a PRP within one year after a
judgment becomes final. Under RCW 10.73.100(6), the one-year time limit is inapplicable when
a PRP is “[1] based on a significant change in the law, [2] which is material to the conviction or
sentence, and [3] sufficient reasons exist to require retroactive application of the changed legal
standard.” In re Pers. Restraint of Ali, 196 Wn.2d 220, 233, 474 P.3d 507 (2020), cert denied,
141 S. Ct. 1754 (2021). I agree with the majority that both Erickson and Jefferson constituted
significant changes in the law that are material to Rhone’s conviction. The third requirement is
at issue here.
To determine whether a decision must be applied retroactively for purposes of RCW
10.73.100(6), our Supreme Court has directed that we apply the federal retroactivity analysis
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established in Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989). Ali, 196
Wn.2d at 236. The Court in Teague held that “new constitutional rules of criminal procedure”
will not be applied retroactively to cases that become final before the new rules are announced.
489 U.S. at 310. Therefore, a decision that announces a new rule of constitutional magnitude can
be applied retroactively only if the new rule is substantive rather than procedural. Ali, 196
Wn.2d at 236.
The question here is whether Erickson and Jefferson announced substantive or procedural
rules. A substantive rule “ ‘set[s] forth categorical constitutional guarantees that place certain
criminal laws and punishments altogether beyond the State’s power to impose.’ ” Ali, 196
Wn.2d at 237 (quoting Montgomery v. Louisiana, 577 U.S. 190, 201, 136 S. Ct. 718, 193 L. Ed.
2d 599 (2016)). Stated differently, “substantive rules alter ‘the range of conduct or the class of
persons that the law punishes.’ ” Edwards v. Vannoy, ___ U.S. ___, 141 S. Ct. 1547, 1562, 209
L. Ed. 2d 651 (2021) (quoting Schiriro v. Summerlin, 542 U.S. 348, 353, 124 S. Ct. 2519, 159 L.
Ed. 2d 442 (2004)). In contrast, a procedural rule is “designed to enhance the accuracy of a
conviction or sentence by regulating ‘the manner of determining the defendant’s culpability.’ ”
Ali, 196 Wn.2d at 237 (quoting Montgomery, 577 U.S. at 201).
Here, the Batson rule and the modifications to that rule in Erickson and Jefferson do not
prevent the State from enforcing certain laws or imposing certain punishments. They do not
change who or what the law punishes. Instead, they affect only the manner in which a
defendant’s culpability is determined. The definitions of substantive and procedural rules in Ali
compel the conclusion that Erickson and Jefferson announced procedural rules, not substantive
rules. 196 Wn.2d at 237.
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Older United States Supreme Court cases support the conclusion that decisions regarding
Batson cannot be applied retroactively. In Allen v. Hardy, the Court concluded that “our
decision in Batson should not be applied retroactively on collateral review of convictions that
became final before our opinion was announced.” 478 U.S. 255, 257-58, 106 S. Ct. 2878, 92 L.
Ed. 2d 199 (1986). In Teague, the Court stated that Allen was dispositive and held that a
defendant whose conviction was final before Batson was decided could not obtain the benefit of
that decision. 489 U.S. at 294-96.
More recently in Edwards, the Court assumed without discussion that a case holding that
criminal juries must be unanimous9 was a rule of criminal procedure. 141 S. Ct. at 1553-55.
Therefore, because the case announced a new rule, it could not be applied retroactively. Id. at
1155-56. If a rule concerning the unanimity of criminal juries is procedural, so must rules
concerning the composition of criminal juries.
The majority asserts that although Erickson and Jefferson may have announced
procedural rules, they should be applied retroactively because they implicated substantive rights.
But the same could be said for almost all procedural rules. Under the majority’s analysis, almost
every significant change of the law would be applied retroactively and the third requirement
under Ali would become meaningless.
As the majority notes, our Supreme Court in Jefferson stated that GR 37 – which adopted
new rules for peremptory challenges of potential jurors potentially based on race and ethnicity –
is “partly substantive” because it affects substantial constitutional rights. 192 Wn.2d at 248-49.
But the court was analyzing whether GR 37 could be applied retrospectively because it was
9 Ramos v. Louisiana, 590 U. S. ___, 140 S. Ct. 1390, 206 L. Ed. 2d 583 (2020).
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No. 54167-0-II
curative, not whether a case announced a substantive or procedural rule for purposes of
retroactivity under RCW 10.73.100(6). Id.
I believe that existing precedent from our Supreme Court and well as from the United
States Supreme Court compels the conclusion that Erickson and Jefferson announced procedural
rules that cannot be applied retroactively. Therefore, I would hold that RCW 10.73.100(6) is
inapplicable and Rhone’s PRP is time-barred. Accordingly, I dissent.
____________________________________ Maxa, J.
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