In re Pers. Restraint of Khan ( 2015 )

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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 I149 Wash. 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. I181 Wash. 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 Wash. 2d 436, 454, 998
P.2d 282 (2000) (alteration in original) (quoting State ex rel. Quick-Ruben v.
Verharen, 136 Wash. 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).
4
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 Wash. 2d 123, 166-67, 267 P.3d 324 (2011)
(citing In re Pers. Restraint of Gentry, 170 Wash. 2d 711, 714, 245 P.3d 766 (2010);
In re Pers. Restraint ofStoudmire, 141 Wash. 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 Wash. 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 Wash. 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 Wash. 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,
5
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.
6
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 Wash. 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 Wash. 2d 91,
109, 225 P.3d 956 (2010) (citing State v. McFarland, 127 Wash. 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 Wash. 2d 835,
7
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 Wash. 2d at 873 (quoting
State v. Hendrickson, 129 Wash. 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 Wash. 2d 136, 198, 892 P.2d 29
(1995) (considering ineffective assistance theory on direct review), with In re Pers.
Restraint ofBrett, 142 Wash. 2d at 873 (reversing on other grounds Brett, 126 Wash. 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 Wash. 2d 374, 379, 979 P.2d 826 (1999); State v. Woo Won
Choi, 55 Wash. 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
8
In re Pers. Restraint ofKhan, No. 89657-7
need that assistance. Pers. Restraint Pet., App. B-C. IId. 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. Irelief. 118
Wash. 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
IChoi, 55 Wash. App. at 901 (citing Carrion, 488 F.2d at
14). But given that IMcFarland, 127 Wash. 2d at 336 (legitimate trial strategy or
tactics cannot be the basis of an ineffective assistance of counsel claim (citing State
v. Garrett, 124 Wash. 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 IofBrett, 142 Wash. 2d at 873 (quoting
Hendrickson, 129 Wash. 2d at 78). As an initial matter, we reject !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, I163 Wash. 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 Wash. 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: IofBrett, 142 Wash. 2d at 873 (quoting
Hendrickson, 129 Wash. 2d at 78). This is likely in part a consequence of the high
level of abstraction with which ICoats, 173 Wash. 2d at
132 (citing In re Pers. Restraint ofElmore, 162 Wash. 2d 236, 251, 172 P.3d 335
(2007)); In re Pers. Restraint ofRice, 118 Wash. 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 I17 4 Wash. 2d at 846-47; In re Pers. Restraint ofBrett, 142
Wash. 2d at 873 (quoting Hendrickson, 129 Wash. 2d at 78).
3. REMAINING CLAIMS
We find the remaining claims unavailing. Briefly, I2009 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). ICarrion, 488 F.2d at 14. I1 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 Wash. 2d 374, 379,979 P.2d 826 (1999)
(quoting State v. Woo Won Choi, 55 Wash. App. 895, 901, 781 P.2d 505 (1989))
(relying on CONST. amend. VI); see also United States ex rel. Negron v. New York,
1
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 Wash. 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 Wash. 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.
3
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 I118 Wash. 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,
2
In re Pers. Restraint of Khan, No. 89657-7
(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 Wash. 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
3
In re Pers. Restraint ofKhan, No. 89657-7
(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 Wash. 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 Wash. 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
4
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 Wash. 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 Wash. 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
5
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 Iid. 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.
6
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 Wash. 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.
7
In re Pers. Restraint ofKhan, No. 89657-7
8