In re Pers. Restraint of Khan

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IUPREME C'.OU!'lT, STATE OF Wl•.::::-ti~!GTON

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IN THE SUPREME COURT OF THE STATE OF WASHINGTON

In the Matter of the Personal Restraint )

of ) No. 89657-7

)

ZAHID AZIZ KHAN, ) EnBanc

)

Petitioner. ) Filed - -NOV 2 5 2015

------

_________________________ )

GONZALEz, J.-Zahid I<han was tried, without an interpreter, for multiple

counts of child molestation and rape. I<han is not a native English speaker, and his

level of English fluency is disputed. It is undisputed that he was not offered an

interpreter by the court or by his attorney. I<han contends, among other things, that

his trial was unfair and that his attorney provided ineffective assistance of counsel

by not securing an interpreter. I<han asks that we vacate his convictions. We find

he has not made the requisite showing for such relief. In the alternative, I<han asks

for an evidentiary hearing to develop the factual basis for his claims. We conclude

he has made the requisite showing for such a hearing. Accordingly, we reverse the

Court of Appeals' order dismissing this personal restraint petition. We remand to

that court for entry of an order transferring !<han's petition to the Snohomish

In re Pers. Restraint ofKhan, No. 89657-7

County Superior Court for a reference hearing. That reference hearing should

determine whether !<han's constitutional and/or statutory rights were violated by

the lack of an interpreter and whether any such violation caused him the requisite

prejudice for collateral relief.

BACKGROUND

A full statement of the facts of the underlying crimes is available in the

Court of Appeals' opinion on direct review. State v. Khan, noted at 149 Wn. App.

1052, 2009 WL 1058626. Briefly, Khan was born in Pakistan in 1972 and moved

to the United States in 1999. Pers. Restraint Pet. App. B at 1. He is a native

speaker of Urdu with, he contends, only limited English proficiency. Id. He lived

with his wife, Eram Mirza; their two children; and his wife's daughter from a

previous marriage, R.H. Khan, 2009 WL 1058626, at *1. After midnight one

night in 2007, Mirza and her sister heard R.H. cry out for help. I d. Mirza and her

sister ran up the stairs and found Khan standing over his crying stepdaughter with

an erection. Id. A few days later, Mirza called Child Protective Services, who

referred the matter to the police. !d. I<han was charged with and convicted of

multiple counts of child molestation and rape. !d. at *1-2. Despite his limited

English proficiency, he was not offered an interpreter.

After his direct appeal was denied, Khan filed this timely personal restraint

petition contending, among other things, ( 1) that the lack of an interpreter deprived

him of due process and equal protection of law, denied him a fair trial, and denied

him effective assistance of counsel. He also contends that his counsel provided

ineffective assistance (2) by failing to move for a mistrial or to seek a curative

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In re Pers. Restraint ofKhan, No. 89657-7

instruction after the prosecutor allegedly exploited his lack of English proficiency

and (3) by failing to secure an expert to testify that his stepdaughter lacked

physical injuries consistent with her testimony that I<han had been abusing her for

several years.

The acting chief judge dismissed !<han's petitionin a lengthy order. While

the order did not explicitly say !<han's petition was frivolous, under the Rules of

Appellate Procedure, only frivolous personal restraint petitions are subject to

dismissal by order of a single judge. RAP 16.11 (b); In re Pers. Restraint ofKhan,

Order Dismissing Pers. Restraint Pet. No. 66398-4-I, at 12 (Wash. Nov. 13, 2013)

(citing RAP 16.11(b)). 1 I<han moved for discretionary review, arguing that,

procedurally, his personal restraint petition should have been either referred to a

panel of judges for a determination on the merits or transferred to the trial court for

further factual development. On the merits, I<han renewed and reformulated his

first three claims for relief. We accepted review. In re Pers. Restraint ofKhan,

181 Wn.2d 1013, 336 P.3d 1165 (2014).

1. RAP 16.11(b) AND NONFRNOLOUS PETITIONS

The acting c~ief judge dismissed this petition under former RAP 16.11 (b)

(1998). At the time, RAP 16.11 provided in relevant part:

The Chief Judge determines at the initial consideration of the petition the

steps necessary to properly decide on the merits the issues raised by the

1Khan also contended in his personal restraint petition that his right to an open public trial was

violated when the potential jurors filled out confidential juror questionnaires, that his trial

counsel was ineffective for not advising him that the questionnaires implicated his open public

trial right, and that his appellate counsel was ineffective for not assigning error to the closed

questionnaires and for failing to investigate whether Khan's stepdaughter had a motive to

fabricate the charges. He did not renew these claims before us, and we do not consider them.

3

In re Pers. Restraint ofKhan, No. 89657-7

petition. If the issues presented are frivolous, the Chief Judge will dismiss

the petition. If the petition is not frivolous and can be detennined solely on

the record, the Chief Judge will refer the petition to a panel of judges for

determination on the merits. If the petition cannot be determined solely on

the record, the Chief Judge will transfer the petition to a superior court for a

determination on the merits or for a reference hearing. The Chief Judge may

enter other orders necessary to obtain a prompt determination of the petition

on the merits.

Former RAP 16.11(b). 2 Khan's petition was not referred to a panel under former

RAP 16.11(b) and counsel was not appointed under RCW 10.73.150(4). Thus, we

infer, the Chief Judge concluded it was frivolous. This was error. We take this

opportunity to consider the meaning of the word "frivolous" for purposes of Title

16 RAP.

Khan suggests we adopt the approach we take under RAP 18.9(a) to

determine whether an appeal is frivolous for purposes of sanctions. Second Suppl.

Br. in Supp. ofPers. Restraint Pet. (Pet'r's Second Suppl. Br.) at 4-5. Under this

approach, an appeal is frivolous "'if there are no debatable issues upon which

reasonable minds might differ and it is so totally devoid of merit that there [is] no

reasonable possibility of reversal."' State v. Chapman, 140 Wn.2d 436, 454, 998

P.2d 282 (2000) (alteration in original) (quoting State ex rel. Quick-Ruben v.

Verharen, 136 Wn.2d 888, 905, 969 P.2d 64 (1998)). Khan's suggestion is

consistent with his allusions to the well-pleaded complaint rule, under which

federal jurisdiction for purposes of filing is determined by a plaintiffs well-

pleaded complaint, not the existence of any defenses. Mot. for Discr. Review at 2;

2

This and related rules were amended in 2014. Under the current rules, a personal restraint

petition will be dismissed "if it is clearly frivolous or clearly barred by RCW 10.73.090 or [RAP]

16.4(d)." RAP 16.8.1(b); RAP 16.11(b). Under either version, '"Chief Judge"' includes

'"Acting Chief Judge."' RAP 16.1l(a).

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In re Pers. Restraint ofKhan, No. 89657-7

see also Franchise Tax Bd. of Cal. v. Constr. Laborers Vacation Trust for S. Cal.,

463 U.S. 1, 10, 103 S. Ct. 2841, 77 L. Ed. 2d 420 (1983) (citing Taylor v.

Anderson, 234 U.S. 74,75-76, 34 S. Ct. 724, 58 L. Ed. 1218 (1914)).

We find the RAP 18.9(a) approach does not fit easily in the personal

restraint petition context. Even if a personal restraint petition raises legal issues

that, out of context, are debatable, it still may be frivolous when there are clear

independent grounds to dismiss. For example, the claims raised may be untimely

under RCW 10.73.090 or .100. The petitioner may not be under "restraint" under

RAP 16.4(b). The petitioner may have made a debatable showing of error without

making any attempt to show the requisite prejudice necessary for collateral relief.

See In re Pers. Restraint of Coats, 173 Wn.2d 123, 166-67, 267 P.3d 324 (2011)

(citing In re Pers. Restraint of Gentry, 170 Wn.2d 711, 714, 245 P.3d 766 (2010);

In re Pers. Restraint ofStoudmire, 141 Wn.2d 342, 355-56, 5 P.3d 1240 (2000)).

The issue may already have been resolved on direct review, and the petitioner may

make no effort to show the interests of justice require the issue to be reexamined.

In re Pers. Restraint of Gentry, 137 Wn.2d at 388. The petitioner might raise a

cognizable legal claim but fail to state with particularity the facts that would give

rise to relief. In re Pers. Restraint ofRice, 118 Wn.2d 876, 886, 828 P.2d 1086

(1992). In any of these situations, a petition may be properly dismissed as

frivolous even if the legal issue, properly raised, might be debatable. See In re

Pers. Restraint of St. Pierre, 118 Wn.2d 321, 328-29, 823 P.2d 492 (1992).

Similarly, as amicus Washington Association of Criminal Defense Lawyers

(WACDL) rightly notes, a personal restraint petition might raise a cognizable

factual claim that would prove frivolous upon a review of relevant documents,

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In re Pers. Restraint ofKhan, No. 89657-7

such as a claim that the State breached a plea agreement when an examination of

the plea agreement or transcript of the plea hearing finds the State never agreed to

the allegedly breached term. Br. of Amicus Curiae WACDL at 4-5. The existence

of a debatable issue is not enough.

Instead, we hold that a personal restraint petition is frivolous where it fails to

present an arguable basis for collateral relief either in law or in fact, given the

constraints of the personal restraint petition vehicle. See, e.g., Neitzke v. Williams,

490 U.S. 319, 325, 109 S. Ct. 1827, 104 L. Ed. 2d 338 (1989); accord Wallace v.

State, 820 N.W.2d 843, 850 (Minn. 2012) (holding a collateral attack "is

'frivolous' ... if it is perfectly apparent, without argument, that the claims in the

petition lack an objective, good-faith basis in law or fact"); People v. Hodges, 234

Ill.2d 1, 11-12, 912 N.E.2d 1204 (2009) ("a prose petition seeking postconviction

relief ... may be summarily dismissed as frivolous or patently without merit only

if the petition has no arguable basis either in law or in fact"). As will be discussed

below, Khan's claim that his right to effective assistance of counsel was violated

by his counsel's decision not to arrange for an interpreter has an arguable basis for

relief and was not procedurally barred. Thus, it was error to dismiss this petition

under former RAP 16.11(b).

But while it was error, Khan does not establish it was error for which the law

gives a particular remedy. 3 Amicus WADCL argues that the acting chief judge

lacked the authority to dismiss the petition by order, and Khan argues that an

appropriate remedy for an improper RAP 16.11 dismissal is remand for

3Khan's briefing seems to suggest that he believes RAP 16.11 error is stmctural or constitutional

error. Mot. for Discr. Review at 2-4. He has not made a persuasive case for either proposition.

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In re Pers. Restraint ofKhan, No. 89657-7

consideration by a three judge panel. Neither establishes that RAP 16.11 error

would warrant such relief, and such relief would be inconsistent with the Rules of

Appellate Procedure generally. E.g., RAP 1.2(a) ("These rules will be liberally

interpreted to promote justice and facilitate the decision of case on the merits.

Cases and issues will not be determined on the basis of compliance or

noncompliance with these rules except in compelling circumstances."). Khan

received the relief the rules clearly provide for-consideration of his motion for

discretionary review. RAP 13.5A(a)(l); RAP 13.4(b). He has not shown that this

relief is inadequate.

2. LACK OF AN INTERPRETER AND EFFECTIVE ASSISTANCE OF COUNSEL

Those charged with a crime have a constitutional right to effective assistance

of counsel. In re Pers. Restraint ofBrett, 142 Wn.2d 868, 873, 16 P .3d 601 (200 1)

(citing Strickland v. Washington, 466 U.S. 668, 684-86, 104 S. Ct. 2052, 80 L. Ed.

2d 674 (1984)). Khan challenges the effectiveness ofhis counsel (and the resulting

fairness of his trial) on the grounds he was unable to adequately understand the

proceedings against him. He bears the burden of showing both "(1) that his

counsel's performance fell below an objective standard of reasonableness and, if

so, (2) that counsel's poor work prejudiced him." State v. A.NJ, 168 Wn.2d 91,

109, 225 P.3d 956 (2010) (citing State v. McFarland, 127 Wn.2d 322, 334-35, 899

P.2d 1251 (1995)). Typically, in a collateral challenge, Khan would also bear the

burden of showing actual and substantial prejudice, but to avoid requiring

petitioners to show '"double prejudice,"' a personal restraint petitioner who makes

a successful ineffective assistance of counsel claim meets the burden of showing

actual and substantial prejudice. In re Pers. Restraint of Crace, 174 Wn.2d 835,

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In re Pers. Restraint ofKhan, No. 89657-7

846-47, 280 P.3d 1102 (2012). "Prejudice is established when 'there is a

reasonable probability that, but for counsel's errors, the result of the trial would

have been different."' In re Pers. Restraint ofBrett, 142 Wn.2d at 873 (quoting

State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996)).

The State argues that Khan is procedurally barred from raising this argument

because he raised ineffective assistance of counsel on direct review. But Khan did

not argue on direct review that counsel was ineffective for failing to obtain an

interpreter; he argued that his counsel was ineffective for failing to object to

testimony that his stepdaughter would suffer adverse social consequences for

coming forward with her allegations and for failing to object to alleged

prosecutorial misconduct. Khan, 2009 WL 1058626, at *2-6. We may consider a

new ground for an ineffective assistance of counsel claim for the first time on

collateral review. Compare, e.g., State v. Brett, 126 Wn.2d 136, 198, 892 P.2d 29

(1995) (considering ineffective assistance theory on direct review), with In re Pers.

Restraint ofBrett, 142 Wn.2d at 873 (reversing on other grounds Brett, 126 Wn.2d

136; considering new ineffective assistance theory on collateral review). This is

such a new claim and may properly be considered.

Khan had both a statutory and constitutional right to an interpreter

throughout the proceedings if he needed one. RCW 2.43.010, .030, .040(2); State

v. Gonzales-Morales, 138 Wn.2d 374, 379, 979 P.2d 826 (1999); State v. Woo Won

Choi, 55 Wn. App. 895, 901, 781 P.2d 505 (1989) (citing United States v. Carrion,

488 F.2d 12, 14 (1st Cir. 1973)); United States ex rel. Negron v. New York, 434

F.2d 386, 390 (2d Cir. 1970). He has submitted a sworn declaration, supported by

affidavits from acquaintances, that creates a cognizable question of whether he did

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In re Pers. Restraint ofKhan, No. 89657-7

need that assistance. Pers. Restraint Pet., App. B-C. I<han had lived in the United

States for less than 10 years when this trial took place. !d. App. B at 1. He told his

lawyer that he did not speak or understand English very well. !d. His attorney told

him not to worry about it. Id. His lawyer did not discuss the court papers or

witness statements with him. Id. Khan's declaration suggests that his lawyer's

lack of communication allowed the State to paint the picture that he "was up at

night only to molest [his] daughter" because his lawyer did not elicit testimony or

present evidence about Khan's nightly prayer schedule. !d. at 2. I<han clearly did

not understand some of the questions he was asked on the stand, most strikingly by

testifying that despite having fathered children, he had never had an erection. 3

Verbatim Report of Proceedings (VRP) (Nov. 28, 2007) at 358, 372.

The State disputes !<han's characterization ofhis English language skills.

Resp. toPers. Restraint Pet. at 28-29. It responds with its own declarations that

tend to show I<han was proficient in English and calls to our attention several

portions of the record that tend to show Khan was fairly fluent in English. !d. at

28-29 (Ex. 17 -18). Whether Khan needed an interpreter is not something we can

ascertain from this record. He has met his burden as to this first prong under Rice

of stating with particularity facts that, if proved, would entitle him to relief. 118

Wn.2d at 886. If in fact Khan's English language skills were such that he required

an interpreter, his counsel was deficient for failing to obtain one. 4

4

I<han also asserts that the trial judge had a duty to provide him with an interpreter and that only

he himself could waive the right to an interpreter. If in fact I<han' s English fluency was such

that the services of an interpreter were required, and if the trial judge knew that, both may be

tme. See RCW 2.43.060(1)(b); Woo Won Choi, 55 Wn. App. at 901 (citing Carrion, 488 F.2d at

14). But given that I<han did not raise the waiver issue in his personal restraint petition, the issue

is not properly before us. Further, as I<han has not yet established either that he needed an

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In re Pers. Restraint ofKhan, No. 89657-7

In the alternative, the State argues that counsel's decision not to obtain an

interpreter was strategic and thus cannot be the basis of an ineffective assistance of

counsel claim. See McFarland, 127 Wn.2d at 336 (legitimate trial strategy or

tactics cannot be the basis of an ineffective assistance of counsel claim (citing State

v. Garrett, 124 Wn.2d 504, 520, 881 P.2d 185 (1994))). Here, the State suggests,

the decision not to obtain an interpreter was a legitimate trial strategy because it

served the defense's theory that Khan's Americanized stepdaughter fabricated the

molestation story in retaliation for Khan's enforcement of strict cultural norms,

apparently on the theory that the jury would have more sympathy if it could

contrast Khan's broken English with the victim's fluent testimony. We find this

argument unavailing. First, nothing about having an interpreter would make the

jury less likely to believe I<ban was raised with different norms. Second, it

deprived I<ban of the ability to understand many of the questions he was asked on

the stand and likely deprived him of the ability to understand many other aspects of

the trial. This is not a meaningful strategy worthy of deference.

We turn now to the more difficult question: whether I<ban has established

"'a reasonable probability that, but for counsel's errors, the result of the trial would

have been different."' In re Pers. Restraint ofBrett, 142 Wn.2d at 873 (quoting

Hendrickson, 129 Wn.2d at 78). As an initial matter, we reject !<ban's invitation

to treat his counsel's decision not to provide an interpreter as structural error,

mandating reversal without any showing of prejudice, and his invitation to

interpreter or that the trial judge knew that, he has not established the factual predicate for either

argument.

10

In re Pers. Restraint ofKhan, No. 89657-7

presume prejudice. Suppl. Br. in Supp. ofPers. Restraint Pet. at 12; Mot. for

Discr. Review at 14. Very few errors are structural, and very little error is

presumed prejudicial. Washington v. Recuenco, 548 U.S. 212, 218, 126 S. Ct.

2546, 165 L. Ed. 2d 466 (2006) (quoting Neder v. United States, 527 U.S. 1, 8, 119

S. Ct. 1827, 144 L. Ed. 2d 35 (1999)); United States v. Cronic, 466 U.S. 648, 666,

104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984). Even the failure to instruct the jury on

an element of the crime charged or to base a sentence on a fact not charged and

proved to the trier of fact is not characterized as structural error. Recuenco, 548

U.S. at 220; Neder, 527 U.S. at 8.

First, I<han argues that the lack of an interpreter prevented him from

consulting with his attorney. Mot. for Discr. Review at 14. A deprivation of

counsel at a critical stage may constitute structural error. See In re Det. of

Kistenmacher, 163 Wn.2d 166, 185, 178 P.3d 949 (2008) (Sanders, J., concurring

in part, dissenting in part). But Khan's declaration does not does not support this

claim because it does not say he was unable to understand or communicate with

counsel on any particular point or at any particular time. Second, Khan argues that

without an interpreter, he was denied the right to be present at trial, resulting in

stn1ctural error. Mot. for Disc. Rev. at 14. But even on direct review, violation of

the right to be present is not structural error. State v. Irby, 170 Wn.2d 874, 885-86,

246 P.3d 796 (2011) (citing Rushen v. Spain, 464 U.S. 114, 117-18, 104 S. Ct. 453,

78 L. Ed. 2d 267 (1983)). We find these arguments unavailing. Khan bears the

burden of showing prejudice.

The State argues strenuously that Khan has not shown sufficient prejudice

for relief. We agree with the State in part: I<han has not established prejudice

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In re Pers. Restraint ofKhan, No. 89657-7

sufficient to justify vacating his conviction. He simply has not shown that, even

assuming counsel was deficient in failing to secure an interpreter, '"there is a

reasonable probability that, but for counsel's errors, the result of the trial would

have been different."' In re Pers. Restraint ofBrett, 142 Wn.2d at 873 (quoting

Hendrickson, 129 Wn.2d at 78). This is likely in part a consequence of the high

level of abstraction with which I<han is approaching this issue, rather than drilling

down into how the lack of an interpreter caused him prejudice by demonstrating

what specifically he would have done differently had he understood the

proceedings or questions. While we understand that he believes this is stn1ctural

error, he would have been well advised to present sufficient evidence and argument

of prejudice in the alternative. See In re Pers. Restraint of Coats, 173 Wn.2d at

132 (citing In re Pers. Restraint ofElmore, 162 Wn.2d 236, 251, 172 P.3d 335

(2007)); In re Pers. Restraint ofRice, 118 Wn.2d at 886.

Generously construing his arguments and based on our own review of the

record, we find sufficient grounds to warrant a reference hearing on prejudice. For

example, when I<han was questioned closely about his wife's testimony that he

was standing over his stepdaughter with an erection, his testimony strongly

suggests he had only limited ability to either understand the questions or

meaningfully respond to them. 3 VRP (Nov. 28, 2007) at 358. There may have

been other instances where had he had the assistance of an interpreter, he might

have been able to assist his attorney in specific, tangible ways. Should the trial

court find Khan's language skills were such that he was entitled to the assistance of

an interpreter, it shall also determine whether there is a reasonable probability that

but for counsel's errors, the result of the trial would have been different. See In re

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In re Pers. Restraint ofKhan, No. 89657-7

Pers. Restraint of Crace, 17 4 Wn.2d at 846-47; In re Pers. Restraint ofBrett, 142

Wn.2d at 873 (quoting Hendrickson, 129 Wn.2d at 78).

3. REMAINING CLAIMS

We find the remaining claims unavailing. Briefly, I<han contends that his

trial counsel was ineffective for failing to move for a mistrial or to seek a curative

instruction after the prosecutor allegedly exploited his lack of English proficiency.

This is, in essence, a repackaging of the prosecutorial misconduct claim resolved

on direct review. Khan, 2009 WL 1058626, at *2. We will reconsider claims

resolved on direct review in a subsequent personal restraint petition only if the

interests of justice require reconsideration. In re Pers. Restraint ofBrown, 143

Wn.2d 431,445,21 P.3d 687 (2001). I<han makes no effort to meet that standard.

This claim was properly dismissed below.

Khan also claims his counsel was ineffective for failing to secure an expert

to testify that his stepdaughter lacked physical injuries consistent with her

testimony. I<han supports this with affidavits from several experts that suggest

counsel could have more effectively presented his theory that the victim's story

was inconsistent with her injuries by offering expert testimony to the point. Pers.

Restraint Pet., Apps. D-F. But the decision not to put on a defense expert was a

reasonable trial strategy. Khan's attorney could have reasonably decided that a

clash of experts on genital scarring and the size ofi<han's fingers would not have

helped his client's defense. Khan also identifies no prejudice that likely flowed

from this decision, and none is easily apparent. Counsel cross-examined the

State's expert who admitted that there were no physical signs of abuse, and counsel

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In re Pers. Restraint ofKhan, No. 89657-7

made good use of that fact in closing arguments. 2 VRP (Nov. 27, 2007) at 247,

257; 4 VRP (Nov. 29, 2007) at 455-56. This claim was also properly dismissed.

CONCLUSION

No one "should face the Kafkaesque spectre of an incomprehensible ritual

which may terminate in punishment." Carrion, 488 F.2d at 14. I<han has

presented sufficient facts to warrant a reference hearing on whether his English

fluency at the time of trial demanded an interpreter. If so, we hold that his counsel

was ineffective for failing to provide one. At this reference hearing, Khan must be

afforded the opportunity to establish he was prejudiced by this deficient

performance sufficient for collateral relief. We reverse the Court of Appeals' order

dismissing this personal restraint petition and remand to that court for further

proceedings consistent with this opinion.

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In re Pers. Restraint of Khan, No. 89657-7

WE CONCUR:

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In re Pers. Restraint of Khan, No. 89657-7

(Yu, J., concurring)

No. 89657-7

YU, J. (concurring)-I agree with the majority that Zahid Khan has made a

preliminary factual showing that warrants a reference hearing, but I write

separately to emphasize the fundamental nature of the right to an interpreter.

The right to effective assistance of counsel and due process protections

afford criminal defendants a constitutional right to an interpreter. We have long

recognized that to proceed without an interpreter renders a trial "a meaningless

ceremony, and the prisoner [would be] tried in violation of the laws and

constitution of the land." Elick v. Wash. Territory, 1 Wash. Terr. 137, 140 (1861).

More recently, we have held that "the right of a defendant in a criminal case to

have an interpreter is based upon the Sixth Amendment constitutional right to

confront witnesses and 'the right inherent in a fair trial to be present at one's own

trial.m State v. Gonzales-Morales, 138 Wn.2d 374, 379,979 P.2d 826 (1999)

(quoting State v. Woo Won Choi, 55 Wn. App. 895, 901, 781 P.2d 505 (1989))

(relying on CONST. amend. VI); see also United States ex rel. Negron v. New York,

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In re Pers. Restraint of Khan, No. 89657-7

(Yu, J., concurring)

434 F.2d 386, 389 (2d Cir. 1970). The legislature has also recognized this right

and declared it to be a public policy "to secure the rights, constitutional or

otherwise, ofpersons who, because of a non-English-speaking cultural

background, are unable to readily understand or communicate in the English

language, and who consequently cannot be fully protected in legal proceedings

unless qualified interpreters are available to assist them." RCW 2.43.010. Finally,

we have authorized access to this right in a court rule. GR 11.

A defendant cannot ·waive the right unless he does so knowingly,

voluntarily, and intelligently. RCW 2.43.060(1)(b). There is no question Khan

had a constitutional and statutory right to an interpreter-a right that he did not

waive and a right that his attorney could not waive for him, even under the guise of

trial strategy. Khan's trial occurred without his full understanding of the

proceedings. The trial record is replete with examples of his struggle to understand

and respond to questions, which goes to the very core of a fair, public trial.

While we do not accept Khan's invitation to presume prejudice and to treat

his counsel's decision to forgo the services of an interpreter as structural error in

this case, our jurisprudence continues to evolve. There may come a time where we

hold that the lack of a language interpreter in a criminal proceeding constitutes

such an error because if an essential interpreter is not provided, '"the likelihood

that any lawyer, even a fully competent one, could provide effective assistance is

2

In re Pers. Restraint of Khan, No. 89657-7

(Yu, J., concurring)

so small that a presumption of prejudice is appropriate without inquiry into the

actual conduct of the trial."' In re Pers. Restraint of Davis, 152 Wn.2d 647, 674,

101 P .3d 1 (2004) (internal quotation marks omitted) (quoting Visciotti v.

Woodford, 288 F.3d 1097, 1106 (9th Cir.), rev 'don other grounds, 537 U.S. 19,

123 S. Ct. 357, 154 L. Ed. 2d 279 (2002); see also In re Pers. Restraint of

Stockwell, 179 Wn.2d 588, 608-09, 316 P.3d 1007 (2014) (Gordon McCloud, J.,

concurring) (citing cases where we have reversed on collateral review without a

showing of prejudice). The growing diversity of our population will no doubt

require judges to assume an affirmative role in ensuring that individual litigants

fully understand the proceedings.

The nature of the rights at issue-·-the right to understand the charges, the

right to confront witnesses, and the right to participate in a meaningful way at

one's own trial-are basic trial rights. Being haled into court to face proceedings

that one cannot understand or participate in without an interpreter jeopardizes

fundamental due process. Justice demands more, and Washington law requires it.

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In re Pers. Restraint of Khan, No. 89657-7

(Yu, J., concurring)

4

In re Pers. Restraint ofKhan, No. 89657-7

(Fairhurst, J. dissenting)

No. 89657-7

FAIRHURST, J. (dissenting)-Under former RAP 16.11(b) (1998), the acting

chief judge (ACJ) of the Court of Appeals had three options when assessing a

personal restraint petition (PRP): decide the PRP is frivolous and dismiss, refer the

PRP to a panel of judges to determine the PRP based solely on the record, or transfer

the PRP to the superior court to either conduct a reference hearing or determine the

merits, including information outside the record. I agree with the majority that Zahid

Khan's PRP was not frivolous and therefore the ACJ erred in dismissing the PRP.

But I cannot agree with the remedy the majority now orders-allowing Khan to

proceed with a reference hearing on his ineffective assistance of counsel claim.

Because I believe this PRP can be decided on the record before us and because I<han

fails to allege prejudice necessary to warrant relief, I dissent.

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(Fairhurst, J. dissenting)

A. IZhan is not entitled to a reference hearing

The majority grants IZhan a reference hearing to resolve the factual dispute of

"whether [IZhan's] English fluency at the time of trial demanded an interpreter."

Majority at 14. But IZhan has not demonstrated he is entitled to a reference hearing

on this matter.

Our case law on reference hearings makes clear that not "every set of

allegations which is not meritless on its face entitles a petitioner to a reference

hearing." In re Pers. Restraint of Rice, 118 Wn.2d 876, 886, 828 P.2d 1086 (1992).

Rather, "the purpose of a reference hearing is to resolve genuine factual disputes,

not to determine whether the petitioner actually has evidence to support his

allegations." I d. The petitioner must set forth "with particularity" the facts that would

entitle him to relief if proved. I d. If the petitioner's allegations rest on information

outside the record, "the petitioner must demonstrate that he has competent,

admissible evidence to establish the facts that entitle him to relief." Id.

Here, IZhan has failed to identify particular disputed facts that could entitle

him to relief if proved at a reference hearing. The competing declarations produced

by IZhan and the State fail to raise a relevant, material dispute. These declarations

are authored by former coworkers, acquaintances, and fellow inmates regarding

Khan's English skills. While the documents do dispute IZhan's English proficiency,

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(Fairhurst, J. dissenting)

the debate is not relevant to our analysis because the declarations are based on

conversations and relationships outside of a trial setting. The declarations tell us little

about his ability to understand the happenings in and communicate at his own trial.

The trial transcripts sufficiently reflect !Chan's ability to communicate at trial. !Chan

thus fails raise a genuine factual dispute that would entitle him to a reference hearing.

Nor is !Chan entitled to a reference hearing for a determination of what

portions of trial he did not understand. Khan simply has not provided sufficient

evidence to warrant an evidentiary hearing on this point. In his declaration, he merely

states that "[ d]uring trial, I understood some things that were said and did not

understand other parts of trial." PRP, App. B at 2, para. 14. Such a bald assertion is

not sufficient to warrant a reference hearing under Rice, 118 Wn.2d at 886. Rather,

in order to obtain a reference hearing, it is Khan's burden to state with particularity

what portions of trial he did not understand. Id. !Chan is not entitled to meet this

initial burden at the hearing because "the purpose of a reference hearing is ... not to

determine whether the petitioner actually has evidence to support his allegations."

I d.

lilian does not otherwise describe the type of evidence he could raise in a

reference hearing relating to his language abilities at trial or explain how he or any

potential witnesses might demonstrate his English abilities years after the relevant

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(Fairhurst, J. dissenting)

event. Certainly, such evidence could and should have been attached to Khan's

initial PRP in the form of a declaration. Without such evidence, Khan fails to show

how an evidentiary hearing would be helpful to resolve his ineffective assistance of

counsel claim.

Perhaps most importantly, as discussed further below, Khan fails to prove he

was prejudiced by the lack of an interpreter at his trial, and we may deny a reference

hearing on this ground alone. ld. at 889 ("No evidentiary hearing is required in a

collateral proceeding if the defendant fails to allege facts establishing the kind of

prejudice necessary to satisfy the Strickland [v. Washington, 466 U.S. 668, 104 S.

Ct. 2052,80 L. Ed. 2d 674 (1984)] test."). For example, in Rice, we declined to grant

a reference hearing when the petitioner failed to present sufficient evidence that the

error he alleged at trial would have impacted the outcome of his case. I d. at 893.

B. Khan fails to establish prejudice

To obtain relief in a PRP on an ineffective assistance of counsel claim, a

petitioner must satisfy the two-pronged Strickland standard. In re Pers. Restraint of

Crace, 174 Wn.2d 835, 846-47, 280 P.3d 1102 (2012). First, a petitioner must show

that his attorney's performance was deficient. Strickland, 466 U.S. at 687; State v.

Hendrickson, 129 Wn.2d 61, 77-78,917 P.2d 563 (1996). Second, a petitioner must

establish prejudice by showing that but for counsel's unprofessional errors, there is

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In re Pers. Restraint ofKhan, No. 89657-7

(Fairhurst, J. dissenting)

a reasonable probability that the result would have been different. Strickland, 466

U.S. at 687; Hendrickson, 129 Wn.2d at 78. "A reasonable probability is a

probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S.

at 694. If the petitioner fails to meet one of the prongs, the inquiry ends and we need

not analyze the case further. Crace, 174 Wn.2d at 847 (holding the petitioner failed

to establish prejudice under Strickland and therefore declining to address whether

counsel's performance was deficient).

Khan fails to demonstrate how his counsel's failure to provide an interpreter

prejudiced him or impacted the outcome of his case. He generally asserts that the

lack of an interpreter injured his credibility. But Khan does not present any analysis

or argument that his credibility would have been significantly improved with an

interpreter. Further, it is more likely that his credibility was injured from evidence

produced at trial, such as the testimony from Eram Mirza and Sanober Mirza that

they both saw Khan standing near R.H. with an erection. This was highly relevant

and consistent with R.H. 's allegations of abuse. R.H. and Eram also testified to the

negative backlash they received from their cultural and religious community as a

result of their decision to testify against a family member. This testimony lent

significant credibility to their allegations, as the jury would not likely believe that

R.H. and Eram would endure such disapproval if the allegations were false. Khan

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In re Pers. Restraint ofKhan, No. 89657-7

(Fairhurst, J. dissenting)

does not explain how an interpreter would have impacted his credibility in a way

that could influence the result of his trial.

Khan does not otherwise claim that the outcome of his case would have been

different had he been provided an interpreter. As the majority acknowledges, Khan

discusses prejudice only at a very "high level of abstraction ... rather than drilling

down into how the lack of an interpreter caused him prejudice by demonstrating

what specifically he would have done differently had he understood the proceedings

or questions." Majority at 12. He does not explain what particular aspects of his

proceedings he did not understand, nor does he state any other evidence he would

have provided had he been aided by an interpreter. Although his allocution at

sentencing was strained, Khan does not now indicate that he would have stated

anything differently with the assistance of an interpreter. Moreover, the trial

transcript reveals that when I<han expressed confusion, questions were rephrased

and I<han provided the relevant information. 3 Verbatim Report of Proceedings at

342-43,349,355,382-83,391,401-02. In addition, I<han was able to communicate

his version of events and clearly deny the allegations against him. See id. at 344-45.

Khan has not shown how he was prejudiced by his trial counsel's decision to

not secure an interpreter. He simply fails to produce any argument that shakes

confidence in the outcome of the trial.

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In re Pers. Restraint ofKhan, No. 89657-7

(Fairhurst, J. dissenting)

The majority gives Khan the opportunity to show prejudice at a reference

hearing. Majority at 12. But this is not the purpose of a reference hearing. Khan must

at least demonstrate that he has some sort of genuine factual dispute to resolve on

the issue; the reference hearing should not be a new forum "to determine whether

the petitioner actually has evidence to support his allegations." Rice, 118 Wn.2d at

886. Khan has failed to demonstrate prejudice under Strickland or even raise a

factual dispute on the matter.

C. Conclusion

I agree with the majority that the ACJ's order violated the procedure set forth

in former RAP 16.11 (b) by dismissing a nonfrivolous PRP. However, I disagree that

Khan is entitled to a reference hearing on his ineffective assistance of counsel claim.

Khan has failed to allege any factual dispute sufficient to warrant an evidentiary

hearing. I would hold that Khan has failed to establish or raise a factual dispute about

how the lack of an interpreter prejudiced the outcome of his trial. Without such a

showing, Khan is not entitled to relief or the opportunity to further develop his

claims. I respectfully dissent.

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In re Pers. Restraint ofKhan, No. 89657-7

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