THOMPSON v. MORGAN, 26314-9-II (Wash.App. 3-8-2002)

No. 26314-9-IIThe Court of Appeals of Washington, Division Two.
Filed: March 8, 2002 UNPUBLISHED OPINION.

Appeal from Superior Court of Pierce County, No. 002087204, Hon. Vicki L. Hogan, July 7, 2000, Judgment or order under review.

Counsel for Appellant(s), Timothy A. Thompson (Appearing Pro Se), Clallam Bay Corr. Center, #235088 B-A-04l, 1830 Eagle Crest Way, Clallam Bay, WA 98326-9723.

Counsel for Respondent(s), Donna H. Mullen, Attorney General Office, P.O. Box 40116, Olympia, WA 98504-0116.

SEINFELD, P.J.

Timothy Thompson appeals the trial court’s denial of his petition for writ of habeas corpus and his motions for default and summary judgment. He also challenges this court’s refusal to appoint appellate counsel. Finding no merit to Thompson’s substantive contentions and further finding that he has not established extraordinary circumstances that would require the court to appoint appellate counsel, we affirm.

FACTS
In 1975, a jury convicted Thompson of the second degree murder of Jan Cygan. The trial court sentenced him to a maximum term of 35 years, which will expire in October 2009.[1] In 1988, after the enactment of the Sentencing Reform Act of 1981 (SRA), chapter RCW 9.94A, the Indeterminate Sentence Review Board (ISRB) set Thompson’s minimum term at 25 years.

In August 1991 and January 1996, the ISRB considered Thompson for parole. It determined that he was not parolable, notwithstanding his earned good time credit and set the next review at the expiration of his minimum term.

The ISRB conducted another parolability hearing on May 30, 2000, at which time the ISRB again determined that Thompson was not parolable and extended his minimum term to his maximum sentence.[2] The ISRB scheduled an administrative progress review for May 2002, and tentatively set a Cashaw hearing for September 2006. In the Personal Restraint of Cashaw, 123 Wn.2d 138, 866 P.2d 8 (1994).

In spring 2000, Thompson filed a petition for a writ of habeas corpus in superior court, alleging that Richard Morgan, the superintendent at the Clallam Bay Corrections Center, was holding him beyond his earned early release date in violation of his due process rights. Thompson also filed a motion to proceed in forma pauperis and moved for appointment of counsel. Morgan responded to the petition.

Thompson then moved for default and summary judgment, asserting that Morgan had failed to respond to the issues in the petition. He also asserted for the first time that the correction center staff had deferred his early release date three times without cause since 1998. In addition, he raised an eighth amendment violation.

The superior court granted Thompson’s request to proceed in forma pauperis and dismissed the petition with prejudice. The court denied his motions for assignment of counsel, for default judgment, and for summary judgment.

Thompson appealed the superior court’s rulings and subsequently repeatedly asked this court to appoint counsel for him on appeal. He also moved to proceed in forma pauperis. This court denied Thompson’s motions, advising him that we lack authority to assign counsel. We forwarded his motion to proceed in forma pauperis to the superior court.

The superior court found Thompson indigent and transmitted those findings to the Supreme Court. The superior court’s findings indicated that Thompson had requested only the verbatim report of proceedings, not assigned counsel. The Supreme Court approved Thompson’s request for payment of costs and waiver of fees but denied attorney fees.

I. CONTINUED CONFINEMENT
Thompson asserts that the State has wrongfully detained him past his earned early release date. He argues that RCW 9.95.070[3] required the ISRB to release him when it considered him for parole and that, in light of his earned good time credit, it should have released him in 1991. He asserts that the ISRB’s refusal to release him was an abuse of discretion, a violation of his due process rights, and cruel and unusual punishment. He also contends that by extending his minimum sentence to his maximum sentence, the ISRB has denied him the benefit of his earned good time.[4]

The State responds that Thompson received the full benefit of his accrued good time by being considered for early parole and that unless the ISRB finds him rehabilitated, he is not entitled to release until the expiration of his maximum sentence. We agree.

Because Thompson committed his offenses before the effective date of the SRA, the indeterminate sentencing provisions of chapter 9.95 RCW apply. See RCW 9.94A.905; Cashaw, 123 Wn.2d at 142; In the Personal Restraint of Ayers, 105 Wn.2d 161, 162, 713 P.2d 88 (1986). Under these provisions, the superior court generally sets an inmate’s maximum sentence and the ISRB sets the inmate’s minimum term. RCW 9.95.010; RCW 9.95.040; RCW 9.95.052. The minimum term cannot exceed the court imposed maximum sentence. RCW 9.95.040.

Under this sentencing scheme, an inmate may be released on parole before serving a full sentence through the granting of early release credit. RCW 9.95.070(1); RCW 9.95.110; Cashaw, 123 Wn.2d at 143. An inmate can earn credit for up to one-third the length of his sentence but this credit applies only to the minimum term set by the ISRB, not to the maximum sentence set by the court. RCW 9.95.070(1); RCW 9.95.110(1).

An inmate does not have a liberty interest in potential early release and is not entitled to release upon serving a minimum term less any earned good time credit unless the ISRB determines that the inmate is rehabilitated and fit for release. RCW 9.95.100; Cashaw, 123 Wn.2d at 144
(citing Greenholtz v. Inmates of Nebraska Penal Correctional Complex, 442 U.S. 1, 7, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979); Ayers, 105 Wn.2d at 164-66). The minimum term simply establishes the date an inmate may be considered for parole; it “carries with it no guaranty of release[.]” Cashaw, 123 Wn.2d at 143. And Thompson cites no authority to the contrary.[5]

Thompson argues that the ISRB denied him the benefit of his accrued good time by setting his minimum term at his maximum sentence. This is incorrect. An inmate can earn good time credit even when his minimum term coincides with the maximum sentence and, if he earns credit, he is entitled to a parolability hearing before the expiration of the maximum sentence. Cashaw, 123 Wn.2d at 150. Here, the ISRB scheduled such a hearing for September 2006. Thus, it did not deny Thompson the benefit of any good time he might earn before his maximum sentence expires.

Nor does RCW 9.95.070(1) require that the ISRB automatically grant parole or release an inmate simply because of earned good time. The statute requires the ISRB to deduct such time from the inmate’s minimum term, but before the ISRB can grant actual release or parole, it must find that the inmate is rehabilitated and fit for release. RCW 9.95.100 In re Personal Restraint of Bible, 69 Wn. App. 394, 398, 845 P.2d 1336
(1992).

Thompson also takes issue with the focus on rehabilitation, arguing that this is not a proper consideration under the SRA. He cites In the Personal Restraint of Mota, 114 Wn.2d 465, 788 P.2d 538 (1990), to support this argument. But “[e]ven after the adoption of the SRA, the [ISRB] may still consider rehabilitation in evaluating a pre-SRA inmate.”Cashaw, 123 Wn.2d at 147.

The Mota court, which mentioned that rehabilitation was not the purpose of the SRA, did not address rehabilitation under the indeterminate sentencing scheme or discuss what factors are properly before the ISRB when it makes a parole determination. 114 Wn.2d at 476.

Thus, Thompson was not entitled to automatic release at the expiration of his previously set minimum term. As the ISRB has not yet determined that he is rehabilitated and fit for release, Thompson is not being wrongfully held beyond his release date.

II. DEFAULT AND SUMMARY JUDGMENT
Thompson asserts that the trial court erred when it denied his motion for default and summary judgment because Morgan failed to answer the petition and failed to challenge the facts presented in the petition.

The record shows that Morgan answered the petition. Further, as discussed above, Thompson’s assertion that he was entitled to early release turned entirely on questions of law. Thus, the trial court did not err when it denied his motion for default and summary judgment.

III. RIGHT TO ASSIGNED COUNSEL ON APPEAL
Thompson asserts that this court wrongfully denied him appointed counsel on appeal.[6] He claims RAP 16.15(h),[7] RCW 10.73.150,[8]
and the state and federal constitutions support his request.

There is no absolute constitutional right to counsel in post-conviction proceedings. See Coleman v. Thompson, 501 U.S. 722, 752, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); In the Personal Restraint of Gentry, 137 Wn.2d 378, 390, 972 P.2d 1250 (1999). But an indigent inmate seeking habeas corpus relief may be entitled to appointed counsel at the trial or first appellate level if:

(1) [the] petition is urged in good faith;

(2) [the] petition raises significant issues which, when considered in the light of the state’s responsive pleadings or the evidence adduced at an evidentiary hearing, are neither frivolous nor repetitive; and

(3) such issues by their nature and character indicate the necessity for professional legal assistance if they are to be presented and considered in a fair and meaningful manner.

Honore v. Wash. State Bd. of Prison Terms Paroles, 77 Wn.2d 660, 673-74, 466 P.2d 485 (1970).

The record does not show that the superior court made these specific findings but the issues Thompson raised were discrete and understandable and did not “by their nature and character indicate the necessity for professional legal assistance” to ensure fair and meaningful review Honore, 77 Wn.2d at 674. Further, as this is an appeal of a final order on a petition for writ of habeas corpus and not a personal restraint petition, RAP 16.15 does not apply. Instead, RAP 15.2(b)(2)(e) governs whether an indigent inmate is entitled to assigned counsel on appeal.

RAP 15.2(b)(2) requires a party seeking counsel at public expense on an appeal of a denial of a petition for writ of habeas corpus to move in superior court for an order of indigency. The party must demonstrate indigency and show “extraordinary circumstances.” RAP 15.2(b)(2)(e). The superior court has discretion to determine whether to grant the motion, and a party bringing an appeal of a type listed in RAP 15.2(b)(2) “may seek review of an order of indigency or an order denying an order of indigency entered by a trial court” by bringing a motion for discretionary review. RAP 15.2(b)(2); RAP 15.2(g).

Here, although the superior court did not make a specific finding as to the presence of extraordinary circumstances, there is nothing in the record suggesting that Thompson could have made this showing.[9] See Schoonover v. Carpet World, Inc., 91 Wn.2d 173, 178, 588 P.2d 729
(1978). Moreover, it is questionable whether Thompson ever specifically requested assigned appellate counsel from the superior court.

Nor does RCW 10.73.150 apply because Thompson’s petition for writ of habeas corpus is not a direct appeal or a collateral attack on his judgment or sentence. The statute refers solely to RAP 16.11, which deals specifically with personal restraint petitions, not petitions for writs of habeas corpus.

Thus, Thompson has not shown that he was entitled to assigned counsel on appeal.[10]

Accordingly, we affirm.

HOUGHTON, J. and QUINN-BRINTNALL, J., concur.