Personal Restraint Petition Of Timothy Robert Pauley

• Court: Court of Appeals of Washington
• Decided: July 24, 2023
• Docket: 84523-3
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Personal Restraint of No. 84523-3-I TIMOTHY ROBERT PAULEY, DIVISION ONE Petitioner. UNPUBLISHED OPINION

BIRK, J. — The Indeterminate Sentencing Review Board (ISRB) found

Timothy Pauley eligible for parole and set an eligibility release date. Pursuant to

statutory authority, the governor issued an order canceling Pauley’s parole.

Pauley filed a personal restraint petition (PRP) seeking relief from the governor’s

order, alleging that the governor violated Pauley’s due process rights. We hold the

governor did not violate Pauley’s due process rights either in making the order, or

by engaging in an unfair process leading to the order. Accordingly, we deny

Pauley’s petition.

I

In 1981, Pauley pleaded guilty to three counts of murder in the first degree

(counts III, IV, and V). He was sentenced to three maximum life terms. Under

Washington’s former indeterminate sentencing scheme, the trial court ordered the

sentence for count IV to run first, then the sentences for counts III and V would run

concurrent with each other and consecutive to count IV. The ISRB paroled Pauley

on count IV in April 1999, after which he began serving the concurrent life

sentences on counts III and V. Pauley’s minimum term was adjusted by the ISRB No. 84523-3-I/2

on several occasions. Following a hearing on March 16, 2022, the ISRB found

Pauley parolable and set his parole eligibility release date on or about July 2, 2022.

The governor conducted a review of Pauley’s parole order pursuant to RCW

9.95.160. The governor’s review of the ISRB record included review of arguments

made by Pauley and his attorney at the March 16, 2022 hearing. The governor

and his staff also met with the victims and family members, as well as former King

County Sheriff (and later member of the United States House of Representatives)

David Reichert. Reichert had assisted with the investigation and arrest in Pauley’s

case as a homicide detective with the King County Sheriff’s Office. Pauley’s

attorney wrote to the governor, and the governor’s office acknowledged receipt of

that letter. In addition, the governor’s office invited Pauley’s attorney to address

whether the ISRB record showed “anywhere where Mr. Pauley has addressed the

victims and/or their families and expressed his remorse.” Pauley’s attorney

provided a response.

On May 18, 2022, the governor issued an order cancelling Pauley’s parole.

The order stated, “This factual statement and decision reasoning are based solely

on materials included in the ISRB hearing record.” The order acknowledges the

ISRB record contains evidence of positive steps Pauley has taken towards

rehabilitation, including the fact he has not received a serious infraction since 1995,

or a general infraction since 2012, the fact he has maintained sobriety since 1995

and has successfully completed chemical dependency treatment, the fact Pauley

has built strong pro-social community support and completed numerous self-help,

education, and cognitive behavioral therapy programs and seminars, and a recent

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psychological assessment indicating “he has made positive strides in his

rehabilitation.” The order states,

Nevertheless, I am concerned by what is missing in Mr. Pauley’s ISRB record. At his March 2022 ISRB hearing, Mr. Pauley was given the important opportunity to testify and offer his thoughts on how his behavior has impacted the victims and families of the victims. He expressed feeling ashamed for his “horrible” actions causing unimaginable problems. But in doing so Mr. Pauley distanced himself from his actions and the direct consequences of those actions. He spoke to the post-traumatic stress disorder [PTSD] that he suffered stemming from an earlier industrial accident and how he is ashamed that, through his crimes, he “passed that [PTSD] on to them [the victims].” He referred to the victims and their families as “them” and “these people,” never directly acknowledging by name or apologizing to the victims and their families. This is troubling. Here, for Mr. Pauley’s rehabilitation to be complete, he must engage in serious introspection to ultimately achieve and affirmatively demonstrate both a full acceptance of his responsibility and remorse. Absent this adequate showing of responsibility and remorse, I respectfully disagree with the ISRB and do not find that Mr. Pauley’s rehabilitation is complete under RCW 9.95.100. Accordingly, I CANCEL the ISRB’s decision to grant parole release to Mr. Pauley.

(Most alterations in original.)

Pauley filed this PRP, seeking relief from the governor’s order, asserting it

violates Pauley’s due process rights because it relies on unsubstantiated notions

rather than verified facts, and because the governor employed a constitutionally

deficient process before issuing the order.

II

To obtain relief, Pauley must show he is restrained under RAP 16.4(b) and

that his restraint is unlawful under RAP 16.4(c). In re Pers. Restraint of Lain, 179

Wn.2d 1, 10, 315 P.3d 455 (2013). RCW 9.95.160 provides “the governor may

cancel or revoke the parole granted to any convicted person by the board. The

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written order of the governor canceling or revoking such parole shall have the

same force and effect and be executed in like manner as an order of the board.”

The statute places no statutory limits on the governor’s discretion. Lain, 179

Wn.2d at 12-13. However, the governor’s authority is not without limit. The

governor’s actions must comply with the constitutional due process protections

afforded based on the liberty interest at stake. Id. at 17.

“[O]nce parole or a promise of parole has been granted in the form of a

tentative release date . . . the prospective parolee enjoys a unique status and is

deserving of minimal due process safeguards before cancellation of that date.”

Monohan v. Burdman, 84 Wn.2d 922, 929, 530 P.2d 334 (1975). For an inmate

who was still incarcerated but has been granted a tentative release date, “due

process was satisfied when [the inmate] had a hearing before the Board, the

governor limited her review to that record, and the governor provided written

reasons for her decisions.” Lain, 179 Wn.2d at 17-18. “Where it is evident that the

governor considered the evidence before the board and supported [the] decision

with objective facts, it is not our role to reweigh the evidence and substitute our

own discretionary judgment.” Id. at 22. Consistent with judicial review of a decision

of the ISRB, we review the governor’s order to determine whether the governor

“acted in total disregard of the facts.” Id. at 21.

A

Pauley argues the order violated due process because it is based on the

unsubstantiated notion that Pauley has not adequately expressed remorse, rather

than on verifiable facts. Pauley argues his discussion of PTSD shows

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“acknowledgment of the direct consequences of his actions,” rather than distancing

himself from his crimes. Pauley argues he expressed remorse, among other times,

when he wrote the ISRB in 2012:

I can’t pretend to know how it must have felt for the families of my victims to have their loved ones so brutally snatched from them in the prime of life like I did, but since experiencing the loss of many of those dear to me and having missed my daughter’s entire life, I at least began to gain some comprehension of how profoundly my actions have impacted those innocent people. I am deeply ashamed of what I’ve done and wish, more than anything I could somehow make this right. The fact I can never hope to do that haunts me every day.

And Pauley testified at his March 2022 hearing:

I panicked. I, I couldn’t get out of there fast enough. And as I was hurrying out towards the back door, I don’t know why, but I opened up the cooler and I shot these two men. And I didn’t even make it out the back door and I regretted that. I know all the harm I caused by doing that, but it was – I did it. I did it.

And, “I was in a state of panic, and I just reacted and did something that I’ve

regretted every moment since then.”

The governor’s order noted factors showing rehabilitation, including

Pauley’s infraction record, sobriety, and recent psychological assessment

indicating he “has made positive strides.” At the same time, the governor observed

that when Pauley was given an opportunity to offer his thoughts on how his

behavior has impacted the victims and families of the victims at his March 2022

hearing, Pauley distanced himself from responsibility. When asked what he would

say to people who thought he should not be released, Pauley testified, “There’s

nothing that I can do to provide comfort for these people. And I understand exactly

why they feel that way. From my perspective, the thing that I would say to them is

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that the laws that were in place when I pled guilty to my crime said that I would

have been eligible for parole in 2007.”

Pauley faults the governor’s response to his PRP for relying, in part, on

evidence from the distant past to support the governor’s order. Pauley argues

more recent rehabilitative efforts by him represent a factually accurate assessment

of his current parolability. However, Pauley himself relies on equally historic

evidence, such as pointing to his original guilty plea to support his acceptance of

responsibility. More recently, Pauley engaged in a program in 2017 to help “make

better decisions and also to have more empathy for different kinds of people,” had

a psychological evaluation in 2019, was discharged from substance use disorder

treatment in 2021, and had another psychological evaluation in 2021. Contrary to

Pauley’s reply argument, the governor has pointed to Pauley’s statements in the

2021 psychological evaluation as supporting the governor’s discretionary

assessment of his remorse. Those statements include references to having

“panicked” at the time of the homicides, referring to lack of “capacity,” and referring

to his own industrial injury. Pauley’s argument that the governor counterfactually

overlooked more recent rehabilitation is not borne out by the record.

The record permitted the governor to conclude Pauley’s rehabilitation was

not complete. Like in Lain, the governor’s order demonstrates that he “considered

all the evidence presented to the Board, and [he] supported [his] decision . . . with

objective facts.” Lain, 179 Wn.2d at 21-22. Because “it is not our role to reweigh

the evidence and substitute our own discretionary judgement,” id. at 22, and the

governor’s reasoning is based on verifiable facts in the record, the governor’s

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conclusion that Pauley has not made an adequate showing of responsibility,

remorse, and accountability was not “in total disregard of the facts,” id. at 21.

B

Pauley argues the order violates his due process rights because it derived

from an unfair process—“the Governor did not stick to the record before the ISRB.

Instead, he reviewed extra-record and one-sided information, in the form of

meeting with Congressman Reichert and some of the survivors of Mr. Pauley’s

crime as well as media-hyped contact from the public.” Pauley states, “Because

Mr. Pauley never had the opportunity to review or respond to the extra-record

materials submitted [by advocates against his release] or . . . an equal opportunity

to meet with the Governor, the resulting order violates due process.”

We do not agree it violates due process for the governor to consider input

both from Pauley and from victims, family members, and law enforcement involved

in the prosecution. The court stated in Lain that due process was afforded in that

case in part because the governor had limited review to the ISRB record. 179

Wn.2d at 17-18. We do not interpret that as implying that if the governor receives

any other information, then a conclusion of a due process violation necessarily

follows. In Lain, also, local news ran stories about the police officer victim’s and

the Lakewood Police Guild’s opposition to Lain’s release, and requested the

governor review the case. Id. at 9-10. “The governor’s office and the board

received considerable correspondence from law enforcement support

organizations and individuals objecting to Lain’s parole.” Id. at 10. Pauley

submitted his position on how the governor should interpret the record. His

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constitutional rights were not violated because those who participated in

prosecuting him did so also. The governor’s order states, “This factual statement

and decision reasoning are based solely on materials included in the ISRB hearing

record.” Pauley provides no basis to question the fact the governor did

substantively base his decision on the ISRB record.

Lain also rejected the argument that due process requires an in-person

meeting with the governor. When discussing the value of additional procedures in

preventing erroneous deprivations of liberty, the Court observed,

Lain received a hearing before the [ISRB], where he had the opportunity and every incentive to present his best case for parolability. That hearing and the governor’s limited review helped assure that the governor’s discretionary decision was based on verified facts and informed by accurate knowledge of Lain’s behavior, minimizing the risk that a determination about parolability was arbitrary and capricious. . . . Lain fails to identify anything meaningful that would be different in a second hearing before the governor.

Id. at 19. Lain argued that, had he been provided a hearing before the governor,

“he would have presented favorable references, described his rehabilitative efforts,

and shown his strong plan for release into the community.” Id. at 20. The Court

concluded, “Lain made these efforts before the [ISRB], and it was that record on

which the governor relied in making her discretionary decision.” Id.

The same is true here. Pauley asserts that if he had been provided a similar

opportunity to meet with the governor, he “could have assured the [g]overnor of

the sincerity of his regret and remorse as well as his full acceptance of

responsibility.” Pauley had a hearing before the ISRB where he had notice and

incentive to present his best case for parolability, including expressions of remorse.

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The families of two of Pauley’s victims had been engaging with the ISRB regarding

Pauley’s case since “about October 2014,” and the ISRB decision and reasoning

from a 2016 hearing states that members of the media and community were

present. At the March 2022 hearing, a member of the ISRB invited Pauley to

address specifically people who thought he should never get out despite his efforts

at rehabilitation. An in-person meeting with the governor would duplicate the

procedure Pauley was afforded before the ISRB.

Pauley also argues that because he was not afforded an opportunity to

review the materials survivors submitted to the governor, he was deprived of an

opportunity to ensure their accuracy, and was thereby deprived of due process.

Pauley asserts the documents provided to the governor by the victims and family

members were not part of the ISRB record. Pauley relies on In re Pers. Restraint

of Sinka, 92 Wn.2d 555, 557-58, 599 P.2d 1275 (1979), in which two petitioners

did not have access to their ISRB files when they met with board members for

setting their minimum terms. Both petitioners complained the ISRB’s decision to

set their terms outside the guideline ranges resulted from inaccuracies in the files.

Id. at 566. The court stated, “We believe that ‘(s)ince the data on which the [ISRB]

acts is not developed through an open adversary confrontation, its accuracy

cannot be assured unless the prisoner has access to the relevant information in

his file.’ ” Id. (quoting Franklin v. Shields, 569 F.2d 784, 794-95 (4th Cir. 1977)).

Sinka held, “[A]t the setting of minimum terms, minimum due process requires that

an inmate be advised of adverse information in his or her parole file.” Id. at 568.

Pauley contends he obtained the victims’ and family members’ submissions

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through public records requests only after the governor’s order. But despite his

actually having reviewed those submissions after the fact, he points to no way in

which they are inaccurate or in which they differ from the position the victims, family

members, and law enforcement have long taken in Pauley’s case. Pauley does

not show the governor’s order relied on matter extrinsic to the ISRB record.

Because Pauley had an opportunity to make his best case for parolability

before the ISRB, and the governor relied on the ISRB record in making his

discretionary decision, Pauley received the process he was due to protect his

limited liberty interest in his parole release date. Pauley has not shown that his

restraint is unlawful. We deny the petition.

WE CONCUR: