(concurring) — While I agree with the result reached by the per curiam opinion, I feel a more searching analysis of our standards for review of claims raised in personal restraint petitions is required.
RAP 16.4(c)(2) provides that personal restraint petitions may be used to challenge a "conviction . . . obtained . . . in violation of the Constitution of the United States or the constitution or laws of the State of Washington ..." That rule is not conditioned on the existence of any prior appeals or objections, and it reflects the policy that petitions be decided on their merits.
RAP 16.4 was patterned after the ABA standards relating to postconviction remedies, specifically Standard 2.1. State v. Rolax, 84 Wn.2d 836, 837, 529 P.2d 1078 (1974); see ABA Standards Relating to Post Conviction Remedies, Std. 2.1 (Approved Draft, 1968). The commentary to that ABA standard states that applicants with otherwise valid claims are not to be denied relief because of prior procedural missteps. The advisory committee recommended that
no such claim should be denied for failure to present it at a prior time unless the withholding of the claim is so serious as to amount to abuse of process . . .
ABA Standards, Std. 2.1, Commentary at 35. The merits of any petition are to be reached because
the inquiry required to establish abuse of process is far *853more burdensome than that required to determine the validity of the claim, and since most applications do not present valid claims, it is simpler and more expeditious to reach the merits . . .
ABA Standards, Std. 2.1, Commentary at 36. This rationale is repeated elsewhere in the ABA standards.
In most instances of unmeritorious claims, the litigation will be simplified and expedited if the court reaches the underlying merits despite possible procedural flaws.
ABA Standards, Std. 6.1(d).
This policy, besides being reflected in RAP 16.4, was also the foundation for that rule's predecessor, the former CrR 7.7. Holt v. Morris, 84 Wn.2d 841, 844-45, 529 P.2d 1081 (1974). In Holt, we stated that
with the adoption of CrR 7.7 the preexisting, somewhat haphazard habeas corpus procedure which had developed essentially on a case-to-case basis has now been replaced by a sound, more expeditious, single, comprehensive system for post-conviction review designed to avoid technicalities and delay and to focus attention promptly and directly on the merits or lack of merits presented in petitions for post-conviction relief.
(Italics mine.)
The right to use postconviction proceedings to raise constitutional claims is specifically guaranteed by RCW 7.36-.130 and .140. Like RAP 16.4, those statutes confer that right unconditionally. They unambiguously require state courts to determine postconviction constitutional claims. They provide:
No court or judge shall inquire into the legality of any judgment or process whereby the party is in custody, or discharge him 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.
(Italics mine.) RCW 7.36.130(1).
In the consideration of any petition for a writ of *854habeas corpus by the supreme court or the court of appeals, whether in an original proceeding or upon an appeal, if any federal question shall be presented by the pleadings, it shall be the duty of the supreme court to determine in its opinion whether or not the petitioner has been denied a right guaranteed by the Constitution of the United States.
(Italics mine.) RCW 7.36.140.
Consistent with those statutes and RAP 16.4, we have reviewed petitions presenting unappealed constitutional issues. See, e.g., In re Keene, 95 Wn.2d 203, 622 P.2d 360 (1980); In re Schellong, 94 Wn.2d 314, 616 P.2d 1233 (1980); McNear v. Rhay, 65 Wn.2d 530, 398 P.2d 732 (1965); see generally Pettus v. Cranor, 41 Wn.2d 567, 250 P.2d 542 (1952),. cert. denied, 345 U.S. 967, 97 L. Ed. 1385, 73 S. Ct. 954 (1953); Buckingham v. Cranor, 45 Wn.2d 116, 273 P.2d 494 (1954), cert. denied, 348 U.S. 938, 99 L. Ed. 735, 75 S. Ct. 360 (1955); Horn v. State, 52 Wn.2d 613, 328 P.2d 159, cert. denied, 358 U.S. 900, 3 L. Ed. 2d 150, 79 S. Ct. 225 (1958); Pettit v. Rhay, 62 Wn.2d 515, 383 P.2d 889 (1963); Little v. Rhay, 68 Wn.2d 353, 413 P.2d 15, appeal dismissed, cert. denied, 385 U.S. 96, 17 L. Ed. 2d 196, 87 S. Ct. 331 (1966); Scruggs v. Rhay, 70 Wn.2d 755, 425 P.2d 364 (1967); Hein v. Smith, 35 Wn.2d 688, 215 P.2d 403, cert. denied, 340 U.S. 837, 95 L. Ed. 614, 71 S. Ct. 22 (1950); White v. Rhay, 64 Wn.2d 15, 390 P.2d 535 (1964); Fleetwood v. Rhay, 7 Wn. App. 225, 498 P.2d 891, review denied, 81 Wn.2d 1005 (1972).
In both Keene and Schellong, constitutional issues were considered, though no appeal had been taken. In Keene, at page 205, we stated:
a conviction may not be collaterally attacked upon a nonconstitutional ground which could have been raised on appeal, but was not. . . .
Upon a personal restraint petition, however, the court will consider a contention that the petitioning prisoner is presently detained in violation of the federal or state constitution. RAP 16.4(c)(2), 16.7(a)(2).
I am aware that a few of our recent cases have departed *855from the above approach. See, e.g., In re Haynes, 95 Wn.2d 648, 628 P.2d 809 (1981); In re Lee, 95 Wn.2d 357, 623 P.2d 687 (1980); In re Myers, 91 Wn.2d 120, 587 P.2d 532 (1978), cert. denied sub nom. Myers v. Washington, 442 U.S. 912, 61 L. Ed. 2d 278, 99 S. Ct. 2828 (1979). In those cases the court suggested that the decision whether to review a petition would be made on a case-by-case basis, weighing the respective judicial and prosecutorial burdens against the interest in error-free trials.
Such a procedure is inconsistent with RCW 7.36 and the actual language of RAP 16.4. It is also a departure from the policies underlying our current court rule. RAP 16.4 is the product of a comprehensive balancing and is intended to displace any case-by-case resolution of whether we should entertain personal restraint petitions.
Furthermore, to the extent these cases stand for the proposition that procedural defects such as failure to make objection at trial or failure to raise a claim on appeal will serve to bar constitutional claims on collateral review, they eliminate sub silentio the possibility of collateral relief by personal restraint petition except in the most unusual of cases such as the one before us. Personal restraint petitions are not motions for reconsideration; the relief they seek is collateral. Thus they should not be limited by the very procedural defects that bar relief on direct review. The whole purpose of collateral review is to provide a forum for potentially meritorious prisoners' claims. Though it does tax the judicial system to provide such collateral review,3 its proven historical value looms much larger than the particular economic exigencies with which we as judges are now beset. If the scope of collateral review is to be changed, it must be consciously done so the full effect on our system of justice may be felt. This, at least, would be more honest *856than casting the personal restraint petition, under the guise of prudence, in a role that would deny it its original purpose and function.
Finally, even if collateral review of all constitutional claims is not accepted by this court, it should, at the very least, embrace the standards the federal courts have used to grant collateral relief on claims we have refused to entertain by way of personal restraint petition because of procedural defects. See, e.g, Myers v. Washington, 646 F.2d 355 (9th Cir. 1981); Gibson v. Spalding, 665 F.2d 863 (9th Cir. 1981).4 If the court will not, at a minimum, embrace these federal standards, our state's personal restraint procedure will come to be viewed as a necessary exhaustion of state remedies, rather than as a method by which serious constitutional claims may be heard. Such a result would be a curious product of concerns for judicial economy. It casts upon federal courts a duty that state courts should not surrender.
Certainly the courts of this state have the greatest interest in determining the status of those convicted here. And to that end, we have a duty to the citizens of this state to monitor the constitutional claims presented.
In sum, our recent cases have represented an attempt to engraft a labyrinthine, technical procedure upon a very simple rule. As a result, they have engendered confusion among the bar and the courts of this state. This confusion underscores the necessity of applying RCW 7.36 and RAP 16.4 as written. Hence, I reiterate the rule that constitutional issues may be raised in a personal restraint petition, *857absent a willful and deliberate failure to appeal them that amounts to abuse of process. ABA Standards, Std. 2.1, Commentary at 35.
Stafford and Dolliver, JJ., concur with Utter, J.
While the system of justice is taxed by providing a forum for collateral review, the attempt in cases like In re Haynes, 95 Wn.2d 648, 628 P.2d 809 (1981), and In re Myers, 91 Wn.2d 120, 587 P.2d 532 (1978), to narrow the scope of collateral review would only serve to clog the courts on direct appeal with claims of questionable merit, but which may, at some future time, prove successful.
Federal courts will entertain habeas claims even though there is a state procedural bar when (a) the "cause” and "prejudice" tests of Wainwright v. Sykes, 433 U.S. 72, 53 L. Ed. 2d 594, 97 S. Ct. 2497, rehearing denied, 434 U.S. 880 (1977) are met, or (b) the rule of Wainwright is inapplicable because a petitioner had no reasonable basis for believing at trial that his rights had been violated. This latter criterion occurs when there has been a significant change in the law since the trial which would have been material to the conviction. See RAP 16.4(c)(4). In determining whether to give retroactive effect to changes in the law, we are guided by the rule of Brown v. Louisiana, 447 U.S. 323, 329 n.6, 65 L. Ed. 2d 159,100 S. Ct. 2214 (1980).