Contrary to the majority's view, Paul Becker did not file two personal restraint petitions. Rather he originally filed a motion to vacate judgment and withdraw his guilty plea. This was a collateral attack but not a prior personal restraint petition (PRP).1 The majority however erroneously concludes Becker's writ is "barred as a successive collateralattack prohibited by RCW 10.73.140." Majority at 11 (emphasis added). RCW10.73.140 doesn't bar successive collateral attacks — it bars multiple PRPs:
*Page 501 Id. (emphasis added).If a person has previously filed a petition for personal restraint, the court of appeals will not consider the petition unless the person certifies that he or she has not filed a previous petition on similar grounds, and shows good cause why the petitioner did not raise the new grounds in the previous petition. Upon receipt of a personal restraint petition, the court of appeals shall review the petition 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 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.
The majority's conclusion is directly contrary to our recent decision in In re Personal Restraint of Bailey, 141 Wn.2d 20, 1 P.3d 1120 (2000) (In re PRP of Bailey). There we considered the precise issue of whether RCW 10.73.140 bars a first PRP where, as here, the petitioner has previously filed a motion for collateral relief with the trial court. We unanimously held, "prior filing of a postconviction motion for collateral relief with the trial court does not subject a first, nonfrivolous PRP tosummary dismissal under RCW 10.73.140."2 In re PRP of Bailey,141 Wn.2d at 28 (emphasis added). The majority proceeds as though its conclusion is consistent with, and even sanctioned by, Bailey when, in fact, today's decision and Bailey are but two ships passing in the night. Moreover, the majority relies on State v. Brand, 120 Wn.2d 365,842 P.2d 470 (1992), a case which Bailey specifically distinguished in this context. In re PRP of Bailey, 141 Wn.2d at 25-28.
In Bailey we considered the state's attempt to include all requests for collateral relief, even those filed at the trial level, as a "petition for personal restraint" or "petition or petitions" as those terms are used in RCW 10.73.140. But we held RCW 10.73.140 `does not apply' to a first PRP, thus roundly rejecting the state's attempt to broaden the statute "beyond its literal meaning so as to permit summary dismissal . . . of a broader category of PRPs." In re PRP of Bailey, 141 Wn.2d at 28,24. We said "the first three sentences of RCW 10.73.140 clearly pertain to cases where 'a person has previously filed a petition for personal restraint,' which Mr. Bailey has not. They are therefore inapplicable here." Id. at 26 (footnote omitted).
Like Bailey, Becker had not previously filed a petition for personal restraint. Thus, RCW 10.73.140 is similarly inapplicable. Like today's majority, the state in Bailey attempted to support its reading of RCW10.73.140 with *Page 502 Brand. However, we held Brand was inapposite to this issue, saying RCW10.73.140 "includes no reference whatsoever to [CrR 7.8(b)], and there is no other reason to believe that the phrase "petition for personal restraint" in RCW 10.73.140 was intended to include any other form of collateral challenge, such as a CrR 7.8(b) motion." In re PRP of Bailey,141 Wn.2d at 26.
Brand was adjudicated under CrR 7.8(b) and the defendant initially filed a PRP and subsequently filed a motion for new trial. Brand,120 Wn.2d at 368. This is precisely the opposite of our case, which is adjudicated under RCW 10.73.140 and in which Becker did not file his first, and only, PRP until after he filed to withdraw his claim at the trial level. While CrR 7.8(b) expressly makes itself "subject to . . . RCW 10.73.140," Bailey said the argument "is not a two-way street," thus specifically rejecting the notion RCW 10.73.140 should be broadly read as subject to CrR 7.8(b). In re PRP of Bailey, 141 Wn.2d at 26.
The majority is restless by its own reasoning, prohibiting Becker's PRP "under RCW 10.73.140 or under our general prohibition against successive attacks." Majority at 7 (emphasis added). In fact, RCW 10.73.140 can't apply to this case because it deals only with successive PRPs and this is Becker's first. In re PRP of Bailey, 141 Wn.2d at 28. The majority attempts to distinguish Bailey because Becker's only PRP "contains no new issues." Majority at 10. Not so. Any issue raised in a first PRP is, by definition, new. For Becker's claims to have been "previously raised and adjudicated" under either RCW 10.73.140 or RAP 16.4(d), majority at 10, there must be a previous PRP and a successive one. In re PRP of Bailey,141 Wn.2d at 28. Here, as in Bailey, there were not.
Reliance on the "general prohibition against successive attacks" is equally dubious. Majority at 7. The majority's expansive attempt to "treat Becker['s PRP] as moving for relief under CrR 7.8(b)" is addressed by Bailey as well. Majority at 10-11. In Bailey we said there was "no other reason to believe that the phrase `petition for personal *Page 503 restraint' in RCW 10.73.140 was intended to include any other form of collateral challenge, such as a CrR 7.8(b) motion." In re PRP of Bailey,141 Wn.2d at 26 (emphasis added). Thus it is clear PRPs are distinct from CrR 7.8(b) motions, and Becker's PRP should not be treated as one simply as a means to the majority's otherwise unattainable end.
The majority is quick to bar Becker's PRP in the interest of "judicial finality." Majority at 6. Of course the purpose of a PRP and writ of habeas corpus is precisely to upset finality where that finality is the result of legal error. Because it is his first PRP, the majority is forced to "analogize" his request to a CrR 7.8(b) motion and then commit a second analogical leap by saying RCW 10.73.140 should be construed to bar collateral attacks beyond the broad language of the statute. However, the majority overlooks "the role of collateral review in preserving constitutional liberties and remedying prejudicial error," and forgets its own holding in Bailey to reach its inconsistent conclusion.In re PRP of Bailey, 141 Wn.2d at 25 (quoting Brand, 120 Wn.2d at 368-69).
In so doing the majority leaves in its wake a demoralizing precedent. Although Bailey plainly held RCW 10.73.140 applies only where one has actually filed multiple PRPs, today the majority arbitrarily classifies an initial PRP as successive by treating it as a CrR 7.8(b) motion and then misapplying RCW 10.73.140. Hence the majority robs the legislation of the plain meaning of "petition for personal restraint," as these terms are used in RCW 10.73.140.
More troubling still is the continued demise of the "great writ of antiquity,' a writ so central to our jurisprudence that it was contained within the original text of the United States Constitution (art. I, § 9) as well as the constitution of our state. See In re PersonalRestraint of Well, 133 Wn.2d 433, 451-54, 946 P.2d 750 (1997) (Sanders, J., dissenting).
I therefore dissent.
ALEXANDER, C.J., and MADSEN, J., concur with SANDERS, J.