[atlas:bill]

AN ACT Relating to collateral attack on judgments; amending RCW 2.32.070, 7.36.130, 7.36.250, 10.73.090, 10.73.100, and 10.73.140; adding a new section to chapter 10.73 RCW; and creating a new section.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION. Sec. 1. (1) Collateral challenges to convictions impose trauma on victims of crime, interfere with rehabilitation, and place a continuing burden on courts and public officials. It is therefore the intent of the legislature to allow such challenges only when the conviction constitutes a clear miscarriage of justice.

(2) Multiple petitions challenging the same conviction are both especially burdensome and unlikely to raise valid issues. It is the intent of the legislature that such petitions will be allowed only under rare and carefully defined circumstances.

(3) A judgment that was upheld on direct appeal or that was not appealed is presumed valid. The right to challenge such a judgment arises only from statute. A person who has been convicted of a crime, which was upheld on appeal, has no constitutional right to challenge a facially valid judgment.

Sec. 2. RCW 2.32.070 and 1992 c 140 s 1 are each amended to read as follows:

The clerk of the supreme court and the clerks of the court of appeals shall collect the following fees for their official services:

Upon filing his or her first paper or record and making an appearance, the appellant or petitioner shall pay to the clerk of said court a docket fee of two hundred fifty dollars. The supreme court and the court of appeals cannot waive the fee for any second or subsequent collateral attack of a judgment and sentence in a criminal case.

For copies of opinions, twenty cents per folio: PROVIDED, That counsel of record and criminal defendants shall be supplied a copy without charge.

For certificates showing admission of an attorney to practice law five dollars, except that there shall be no fee for an original certificate to be issued at the time of his or her admission.

For filing a petition for review of a court of appeals decision terminating review, two hundred dollars.

The foregoing fees shall be all the fees connected with the appeal or special proceeding.

No fees shall be required to be advanced by the state or any municipal corporation, or any public officer prosecuting or defending on behalf of such state or municipal corporation.

Sec. 3. RCW 7.36.130 and 1989 c 395 s 3 are each amended to read as follows:

No court or judge shall inquire into the legality of any judgment or process whereby the party is in custody, or discharge the party when the term of commitment has not expired, in either of the cases following:

(1) Upon any process issued on any final judgment of a court of competent jurisdiction except where it is alleged in the petition that rights guaranteed the petitioner by the Constitution of the state of Washington or of the United States have been violated and the petition is filed within the time allowed by RCW 10.73.090 and 10.73.100 and, if a second or subsequent petition challenging a final judgment of a court of competent jurisdiction, the petition satisfies the requirements of RCW 10.73.140.

(2) For any contempt of any court, officer or body having authority in the premises to commit; but an order of commitment, as for a contempt upon proceedings to enforce the remedy of a party, is not included in any of the foregoing specifications.

(3) Upon a warrant issued from the superior court upon an indictment or information.

Sec. 4. RCW 7.36.250 and 1947 c 256 s 1 are each amended to read as follows:

Any person entitled to prosecute a writ of habeas corpus who, by reason of poverty is unable to pay the costs of such proceeding or give security therefor, may file in the court having original jurisdiction of the proceeding an affidavit setting forth such facts and that he believes himself to be entitled to the redress sought. Upon the filing of such an affidavit the court may, if satisfied that the proceeding or appeal is instituted or taken in good faith, order that such proceeding, including appeal, may be prosecuted without prepayment of fees or costs or the giving of security therefor. However, a petitioner filing a second or subsequent collateral attack of a judgment and sentence in a criminal case must pay the filing fees whether or not the petitioner is considered indigent.

Sec. 5. RCW 10.73.090 and 1989 c 395 s 1 are each amended to read as follows:

(1) No petition or motion for collateral attack on a judgment and sentence in a criminal case may be filed more than one year after the judgment becomes final if the judgment and sentence is valid on its face and was rendered by a court of competent jurisdiction. No petition or motion for collateral attack on a judgment and sentence in a criminal case that has been filed within one year after the judgment becomes final may be amended to add new claims more than one year after the judgment became final.

(2) For the purposes of this section, "collateral attack" means any form of postconviction relief other than a direct appeal. "Collateral attack" includes, but is not limited to, a personal restraint petition, a habeas corpus petition, a motion to vacate judgment, a motion to withdraw guilty plea, a motion for a new trial, and a motion to arrest judgment.

(3) For the purposes of this section, a judgment becomes final on the last of the following dates:

(a) The date it is filed with the clerk of the trial court;

(b) The date that an appellate court issues its mandate disposing of a timely direct appeal from the conviction; or

(c) The date that the United States Supreme Court denies a timely petition for certiorari to review a decision affirming the conviction on direct appeal. The filing of a motion to reconsider denial of certiorari does not prevent a judgment from becoming final.

(4) The time for filing a petition is jurisdictional and may not be extended except as provided for in RCW 10.73.100.

Sec. 6. RCW 10.73.100 and 1989 c 395 s 2 are each amended to read as follows:

The time limit specified in RCW 10.73.090 does not apply to a petition or motion that is based solely on one or more of the following grounds:

(1) Newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable fact-finder would have found the defendant guilty of the offense, if the defendant acted with reasonable diligence in discovering the evidence and filing the petition or motion;

(2) The statute that the defendant was convicted of violating was unconstitutional on its face or as applied to the defendant's conduct;

(3) The conviction was barred by double jeopardy under Amendment V of the United States Constitution or Article I, section 9 of the state Constitution;

(4) The defendant pled not guilty and the evidence introduced at trial was insufficient to support the conviction;

(5) The sentence imposed was in excess of the court's jurisdiction; or

(6) There has been a significant change in the law, whether substantive or procedural, which is material to the conviction, sentence, or other order entered in a criminal or civil proceeding instituted by the state or local government, and either the legislature has expressly provided that the change in the law is to be applied retroactively, or a court, in interpreting a change in the law that lacks express legislative intent regarding retroactive application, determines that sufficient reasons exist to require retroactive application of the changed legal standard.

Sec. 7. RCW 10.73.140 and 1989 c 395 s 9 are each amended to read as follows:

(1) A person filing a collateral attack on a judgment in a criminal case shall include a list of all prior collateral attacks upon the same final judgment that the person has filed and the grounds for relief raised in each prior collateral attack. A person's failure to provide an accurate list of prior collateral attacks may be grounds for dismissing the collateral attack.

(2) If a person has previously filed a ((~~petition for personal restraint, the court of appeals will~~)) collateral attack, the court may not consider ((~~the petition~~)) a new collateral attack unless the person certifies that he or she has not filed a previous ((~~petition~~)) collateral attack on similar grounds, and shows good cause why the petitioner did not raise the new grounds in ((~~the~~)) any previous ((~~petition~~)) collateral attack, and obtains permission from the supreme court to file the new collateral attack. Upon receipt of a ((~~personal restraint petition~~)) motion for permission to file a second or subsequent collateral attack, the supreme court ((~~of appeals~~)) shall review the ((~~petition~~)) collateral attack and determine whether the person has ((~~previously filed a petition or petitions and if so, compare them. If upon review, the court of appeals finds that the petitioner has~~)) previously raised the same grounds for review, or ((~~that~~)) whether the petitioner has failed to show good cause why the ground was not raised earlier((~~, the court of appeals shall dismiss the petition on its own motion without requiring the state to respond to the petition~~)). If the supreme court determines that the petitioner has demonstrated good cause, the supreme court shall enter an order allowing the appropriate court of appeals to consider the merits of the issues. A second or subsequent collateral attack is not properly filed until the supreme court enters an order authorizing the court of appeals to consider the merits of the claim.

(3) Good cause exists when:

(a) The petitioner shows that the claim relies on a new rule of constitutional law made retroactive to cases on collateral review by either the United States supreme court or the Washington supreme court; or

(b)(i) The factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and

(ii) The facts underlying the claim if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for the constitutional error, no reasonable fact-finder would have found the petitioner guilty of the underlying offense.

(4) Upon receipt of a first or subsequent ((~~petition~~)) collateral attack, the court ((~~of appeals~~)) shall, whenever possible, review the ((~~petition~~)) collateral attack and determine if the ((~~petition~~)) collateral attack is based on frivolous grounds. If frivolous, the court ((~~of appeals~~)) shall dismiss the ((~~petition~~)) collateral attack on its own motion without first requiring the state to respond to the ((~~petition~~)) collateral attack.

NEW SECTION. Sec. 8. A new section is added to chapter 10.73 RCW to read as follows:

No court may grant relief to any person who files a petition or motion for collateral attack on a judgment and sentence in a criminal case unless it appears that the petitioner has proven by clear and convincing evidence that a right guaranteed the petitioner by the Constitution of the state of Washington or of the United States has been violated and that the constitutional error had substantial and injurious effect or influence in determining the jury's verdict.

No court may require the state to respond to a collateral attack on a judgment and sentence in a criminal case until the person filing the collateral attack establishes that the collateral attack is not frivolous, is timely under RCW 10.73.090, and is not barred by RCW 10.73.140.

If the judgment and sentence has been upheld on direct appeal or not appealed, the ineffectiveness or incompetence of counsel during later collateral postconviction proceedings shall not be grounds for relief.