¶33 (dissenting) — Relying on the federally-created actual-innocence doctrine, the majority finds this case comparable to “an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent.” Majority at 917 (citing Murray v. Carrier, 477 U.S. 478, 495-96, 106 S. Ct. 2639, 91 L. Ed. 2d 397 (1986)). I disagree that this is such a case.
¶34 I agree with the majority’s analysis that it is impossible to determine the factual comparability of Carter’s California assault conviction with a Washington second degree assault conviction. But to say this means that Carter is actually or even probably innocent of having had two strikes in 1998 seems to me to be a bridge too far. What we do know from common sense and experience is that it is quite likely that someone firing a gun at a police car is intending to harm the police officer in the vehicle. While a petitioner who can affirmatively demonstrate actual innocence could well succeed, Carter has not shown that he lacked the requisite intent and that his offense is therefore not factually comparable.
¶35 Carter has not shown, and the burden is his, that the one-year time bar should not apply to him. RCW 10.73.090. To hold otherwise, as the majority does, is to employ an exception for “extremely rare instances” in which the petitioner is “actually innocent” in a case where there is no such showing, rather only an inadequate record to review the claimed error. Majority at 920-21. Opening the door to cases in which the exception is rooted in the record’s weakness and not on actual innocence not only ignores the exception’s purpose of providing relief to those actually innocent without legal recourse but will invite a flurry of *926cases where defendants pleaded guilty to strike offenses in other states before committing their last strike here. I would deny the petition.