(dissenting) — I agree with the majority that RCW 10.73.140 and RAP 16.4(d) conflict as to whether a second or successive personal restraint petition is reviewable by the Court of Appeals when it raises an issue which has been raised in a prior personal restraint petition. I further agree that the statute prevails because the Legislature has authority to determine the jurisdiction of the Court of Appeals, and agree that the statute does not apply to restrict this court’s jurisdiction in habeas matters.
However, some of the majority’s analysis is troublesome. Under RCW 10.73.140 the Court of Appeals must dismiss a second petition raising the same issue. The majority reasons that under the general jurisdiction statute applying to the Court of Appeals, RCW 2.06.030, that court must transfer to "the proper court” a matter which it must dismiss based upon lack of subject matter jurisdiction. The majority reasons that this court is a proper court to which the Court of Appeals must transfer a personal restraint petition over which it has no jurisdiction under RCW 10.73.140.
*571The difficulty I see is in the majority’s directive that the Court of Appeals is to transfer only those cases having potential merit under RAP 16.4(d). First, there seems to be nothing in RCW 2.06.030 which permits the transfer of some but not all cases over which the Court of Appeals lacks jurisdiction because of RCW 10.73.140. This court’s jurisdiction does not depend upon whether a personal restraint petition has potential merit under RAP 16.4(d). Accordingly, if this court is a proper court in which to transfer personal restraint petitions having such potential merit, it is also a proper court in which to transfer personal restraint petitions having none. Second, in order to determine which personal restraint petitions should be transferred to this court, the Court of Appeals would clearly have to review the merits of the petitions and exercise discretion as to which should be transferred. That review is plainly beyond its jurisdiction under RCW 10.73.140.
Aside from these concerns, I must dissent from the majority’s conclusion that petitioner is entitled to relief under RAP 16.4(d). The petitioner has failed to carry the burden of showing a fundamental defect which inherently results in a complete miscarriage of justice. See In re Cook, 114 Wn.2d 802, 812, 792 P.2d 506 (1990) (requirement for relief under RAP 16.4 where nonconstitutional grounds are asserted). Although the majority says that petitioner, if sentenced at the low end of the correct range as the trial court indicated was intended, would have received a shorter sentence, the majority also quite correctly recognizes that on resentencing the court could impose the same sentence as originally imposed or even a longer sentence than originally imposed, so long as the new sentence is within the standard range based upon the proper offender score. Majority at 569 n.6. However, petitioner’s sentence already falls within the standard range based upon the correct offender score and therefore there has been no complete miscarriage of justice in this case.
Finally, the majority too strongly declares that personal *572restraint petitions are not subject to res judicata principles and that a relaxed standard of finality applies to judgments in the "criminal context.” Majority at 567 n.4. Although the majority relies upon statements by the United States Supreme Court in a 1963 case, more recently the Court has concluded that Congress’ new restrictions on successive habeas petitions "constitute a modified res judicata rule, a restraint on what is called in habeas corpus practice 'abuse of the writ.’ ”7 Felker v. Turpin, 518 U.S. 651, 116 S. Ct. 2333, 2340, 135 L. Ed. 2d 827 (1996) (addressing Title 1 of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1217) By whatever name, valid restrictions may be placed upon successive petitions.
The petition should be dismissed.
Guy, J., concurs with Madsen, J.
Some courts expressly apply res judicata principles to habeas petitions. See, e.g., Isley v. State, 652 So. 2d 409, 410-11 (Fla. Dist. Ct. App. 1995); State ex rel. Richard v. Seidner, 77 Ohio St. 3d 68, 671 N.E.2d 28 (1996); but see Brooks v. Alabama Bd. of Pardons & Paroles, 644 So. 2d 481 (Ala. Crim. App. 1994).