abuse of the writ is an affirmative defense that the State must plead (citing McCleskey v. Zant, 499 U.S. 467, 494, 111 S. Ct. 1454, 113 L. Ed. 2d 517 (1991))
How later courts described this case
- abuse of the writ is an affirmative defense that the State must plead (citing McCleskey v. Zant, 499 U.S. 467, 494, 111 S. Ct. 1454, 113 L. Ed. 2d 517 (1991))
- abuse of the writ is an affirmative defense that the State must plead
Written by the judges who cited it.
The opinion
*57 ¶26 (concurring in result only) — I respectfully concur with Justice Sanders, and Justice Brachtenbach before him, that our abuse of the writ doctrine has unfortunately strayed from its original purpose. See In re Pers. Restraint of Jeffries, 114 Wn.2d 485, 499-504 , 789 P.2d 731 (1990) (Brachtenbach, J., dissenting in part). Originally, the abuse of the writ doctrine allowed courts to dismiss successive petitions for collateral relief based on new arguments when it appeared that the petitioner “(1) made a conscious decision deliberately to withhold them from a prior petition, (2) is pursuing needless piecemeal litigation, or (3) has raised the claims only to vex, harass, or delay.” Hamilton v. Vasquez, 882 F.2d 1469, 1473 (9th Cir. 1989) (citing Sanders v. United States, 373 U.S. 1, 18 , 83 S. Ct. 1068 , 10 L. Ed. 2d 148 (1963); Neuschafer v. Whitley, 860 F.2d 1470, 1474 (9th Cir. 1988)). This allowed courts to ensure that writs serve their ancient purposes of justice and equity while not rewarding inexcusable neglect by the petitioner. See generally H. Brent McKnight, How Shall We Then Reason? The Historical Setting of Equity, 45 Mercer L. Rev. 919 , 928 (1994).
Chambers, J.
¶27 Now, the abuse of the writ doctrine has mutated to serve a new purpose: docket management. Dismissing a case on abuse of the writ has become essentially an administrative function, allowing courts to winnow down their dockets. While I have great sympathy for the expanding work load of the judiciary, I concur with Justice Sanders that the touchstone should be equity, and I would allow successive petitions upon a showing of good cause why the argument was not raised earlier.
¶28 The purpose of the great writ of habeas corpus (and thus integral to its successor, the personal restraint petition) is to police illegal restraint. See Horace G. Wood, A Treatise on the Legal Remedies of Mandamus and Prohibition, Habeas Corpus, Certiorari, and Quo Warranto 111 (Charles F. Bridge ed., Fred B. Rothman & Co. 3d ed. 2002) (1896). The trend toward summary dismissal undermines this vital purpose. I do not favor the creation of new rules, or the *58 reinterpretation of old ones, to create more barriers to habeas relief, however styled.
¶29 I respectfully concur in the result only.