Personal Restraint Petition Of Steven P. Kozol

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

IN THE MATTER OF THE PERSONAL No. 84098-3-I
RESTRAINT OF:
DIVISION ONE
STEPHEN PAUL KOZOL,
UNPUBLISHED OPINION
Petitioner

FELDMAN, J. – In 2001, Stephen Paul Kozol was convicted of attempted first

degree murder and first degree burglary and sentenced based on an incorrectly

calculated offender score. In 2020, Kozol was resentenced with a correctly

calculated offender score. Kozol now claims that the 2020 resentencing allows

him to challenge his 2001 conviction despite the one-year time limit for filing a

personal restraint petition (PRP) under RCW 10.73.090. We reject Kozol’s various

attempts to avoid the one-year time limit and dismiss his PRP as untimely.

I

In a prior opinion regarding Kozol’s 2001 judgment and sentence (the 2001

J&S), we recounted the relevant facts and procedural history as follows:

Steven Kozol and Thomas Wolter were housemates in Wolter’s
home from November 1999 to May 2000. Wolter was financially
stable, whereas Kozol seldom worked. Kozol owed three months’
rent when he moved out of Wolter’s home.

Six months later, on November 15, 2000, Wolter was violently
attacked in his home by a man wearing a black ski mask over his
No. 84098-3-I

head and face, leather gloves, and a thick gray sweat suit. Wolter
fought his assailant in the upstairs office of his home where the initial
attack occurred, then in the stairwell and at the bottom of the stairs,
then back upstairs at the doorway to Wolter’s bedroom after Wolter
ran upstairs and tried to barricade himself in the bedroom and the
assailant returned up the stairs and attempted to kick in the door,
then back down the stairwell and into the lower part of the house
where Wolter was finally able to break away and run to a neighbor’s
home. In the course of the attack and the ensuing struggle, Wolter
was shot with a taser gun, shot three times with a handgun, and
threatened with a knife.

Wolter’s neighbor called 911. Police arrived quickly but were unable
to locate the assailant. Wolter was taken to Harborview Hospital
where he was treated for the gunshot wounds and for numerous
lacerations requiring stitches. Wolter was not able to identify his
assailant, but he was able to describe the clothing worn by the man,
and gave police a general description of the man’s height, weight,
and build. He also told police that when he was shot with the gun he
heard a “popping” or “puff” noise, and that the gun seemed to have
something long attached to it. This led police to believe that the gun
had been equipped with a silencer.

The officers obtained a search warrant to search Wolter’s home for
evidence. They found no sign of forced entry. They found
bloodstains on the carpet and walls, bullets and bullet holes, a wire
from a taser gun, a taser barb on the jacket Wolter had been wearing,
and “AFIDS” on the floor of the office. The acronym AFIDS stands
for “anti-felon identification tags.” They are automatically deployed
when a taser gun is fired, and they have a serial number on them
that can be traced back to a specific taser gun. In this case, the
AFIDS were traced to a taser gun that had been purchased by
Wolter’s former housemate Steve Kozol, eight days before the
attack, from a business called Spy Connection. The physical
description Wolter gave police of his attacker was similar to that of
Kozol.

The bullets retrieved from the crime scene were found to have been
shot from a 9 mm. semi-automatic or fully automatic pistol
manufactured by SWD Company. This company imprints the logo
“Cobray” on the firearms that it manufactures. Police subsequently
found evidence that Kozol had purchased a 9 mm. Cobray handgun
and a rapid-fire attachment for the gun.

Because the AFIDS had been traced to a taser gun purchased by
Kozol, police promptly began watching him. They saw him transfer

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a briefcase from his Audi vehicle into the trunk of a Mustang owned
by his girlfriend. They obtained multiple search warrants to search
Kozol’s residence, a storage facility that he rented, his Audi, and his
girlfriend’s Mustang. In the Mustang, police found a briefcase
containing Wolter’s identification, several bank statements and blank
checks belonging to Wolter, a newspaper article about the attack on
Wolter, and a business card from the business called Spy
Connection. Wolter subsequently identified the briefcase as one
belonging to him.

Police found a book entitled Quick and Dirty Home Made Silencers
in Kozol’s Audi. They also found “smear transfer” bloodstains on the
driver’s seat of the car. Swabs were taken, tested, and found to
exactly match a blood sample taken from Wolter.

In Kozol’s garage, police found parts that could be used to make
home made silencers for guns using some of the methods described
in the book on how to make silencers that was found in Kozol’s Audi.
Detective Gulla, who helped execute the search warrant for Kozol’s
garage, subsequently testified that based on his training and
experience with firearms and silencers, including actual experience
in making a home made silencer, he immediately recognized the
parts that he saw in the garage as those from which silencers can be
made. He also testified that these parts were located in close
proximity to one another.

Kozol was charged with attempted murder in the first degree, and in
the alternative, with attempted murder in the second degree. He was
also charged with burglary in the first degree. Each of the charges
included an allegation that Kozol was armed with a deadly weapon
at the time of the crimes.

Kozol brought a motion to suppress evidence obtained from only one
of the several search warrants that were issued, the warrant which
authorized the search of Kozol’s house, garage, and car. The court
denied the motion to suppress.

At trial, Kozol testified that although he had indeed purchased a taser
gun, a 9 mm. Cobray handgun, and a rapid-fire attachment for the
gun, these items had been stolen from his rented storage locker
before the night of the crime against Wolter. He testified that he had
intended to give the taser gun to his girlfriend for Christmas, and that
he had intended to use the handgun for target practice. He testified
that the blood on his car seat could have come from a rag that he
had used to treat a foot injury Wolter received when he stepped on
a nail, which rag he had tossed into his car. He testified that Wolter

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gave him the briefcase, and that because the two had shared the
office on the second floor of Wolter’s home while they were
housemates, Wolter’s identification, blank checks, and bank
statements, which predated the crime by several months, could have
been accidentally swept into the briefcase when Kozol moved
out. He denied any involvement in the attack on Wolter. Both he
and his girlfriend testified that on the night of the attack, Kozol had
been with the girlfriend at her home the whole time. Kozol explained
that the parts in his garage were for his hobby of building homemade
rockets and for a business project of developing a new kind of air
filter for diesel trucks. He also claimed to be writing a novel that
included spies and taser guns.

Wolter testified during rebuttal that he had no recollection of injuring
his foot by stepping on a nail, or of giving Kozol his briefcase, but
that the happening of either event was in the realm of possibility.

The jury found Kozol guilty of attempted first degree murder and first
degree burglary, and also found that he had been armed with a
deadly weapon at the time of each offense.

State v. Kozol, noted at 117 Wn. App. 1037, 2003 WL 21500724, at *1-3. The trial

court then sentenced Kozol. Critical here, the court incorrectly calculated an

offender score of 9 on the attempted murder count, sentenced Kozol within the

standard range for that incorrect offender score, and imposed two firearm sentence

enhancements.

Kozol timely appealed the trial court’s judgment and sentence. This court

affirmed the judgment and sentence on direct appeal, and the Washington

Supreme Court denied review. 2003 WL 21500724, at *10; State v. Kozol, 150

Wn.2d 1037, 84 P.3d 1230 (2004). On February 25, 2004, this court issued its

mandate. At that time, the 2001 J&S was judicially final and no longer subject to

direct review.

In 2005, Kozol filed a motion under CrR 7.8 for collateral relief from the 2001

J&S, which was transferred to the Court of Appeals as a PRP. Kozol argued the

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trial court incorrectly calculated his offender score by including two prior

convictions for forgery and theft from 1991 that should have “washed out” under

former RCW 9.94A.360(2). 1 This court rejected Kozol’s argument based on the

limited record presented in support of the PRP.

In 2018, Kozol filed a second motion under CrR 7.8 asserting the same

argument as his first motion but, this time, he presented compelling evidence

showing that his 1991 convictions should have washed out. The court agreed with

Kozol’s argument that the 2001 J&S was facially invalid because it was based on

an incorrect offender score. The trial court resentenced Kozol within the standard

range based on a corrected offender score of 7 on the attempted murder count

and again imposed two firearm sentence enhancements. The trial court issued its

amended judgment and sentence in 2020 (the 2020 J&S). Kozol timely appealed

the 2020 J&S, and the Court of Appeals, upon motion by Kozol, dismissed the

appeal on June 8, 2021.

Finally, on June 1, 2022, Kozol filed the instant PRP challenging his

convictions on six grounds: (1) prosecutorial misconduct, (2) erroneous admission

of evidence, (3) newly discovered evidence and/or improperly suppressed Brady2

evidence, (4) destruction of exculpatory evidence, (5) ineffective assistance of

1 Under the “washout” provision of former RCW 9.94A.360(2) in effect when Kozol committed his

crimes in 2000, prior class C felony convictions were not included in the offender score if “since the
last date of release from confinement . . . the offender had spent five consecutive years in the
community without committing any crime that subsequently results in a conviction.” Washington
courts refer to these convictions as having “washed out.” E.g., State v. Gauthier, 189 Wn. App. 30,
40, 354 P.3d 900 (2015).
2 Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963).

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counsel, and (6) denial of access to the courts. 3 The State, in response to the

PRP, asserts that we need not reach any of Kozol’s arguments because the PRP

is untimely and must therefore be dismissed.

II

Our Supreme Court described the proper role of PRPs in safeguarding the

fair trial rights of defendants in In re Personal Restraint of Coats, 173 Wn.2d 123,

267 P.3d 324 (2011). The court explained, “The defendants’ right to a fair trial is

protected by a right of direct appeal. After the right of appeal has been exhausted

and the appeal is final, the defendant is afforded the additional right to collateral

review by a personal restraint petition.” Id. at 140. But the court added that this

right to collateral review “is not unlimited.” First, “It requires the petitioner to make

a heightened showing of prejudice, among many other things.” Id. And second,

“Personal restraint petitions based upon most claimed errors made at trial by the

judge such as jury instructions and rulings on evidence and motions, must be

brought within the one-year time limit prescribed by RCW 10.73.090.” Id. 4

3 Although Kozol also claims he is challenging his firearm enhancements, PRP 1, he fails to provide

any argument or citation to authority explaining why the trial court erred in imposing these firearm
enhancements. Thus, we decline to address this issue. See Christian v. Tohmeh, 191 Wn. App.
709, 727-28, 366 P.3d 16 (2015) (“[T]his court does not review issues not argued, briefed, or
supported with citation to authority.”) (citing RAP 10.3(a)(6)).
4 RCW 10.73.090(1) provides, “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.” There are six enumerated exceptions to this one-year time limit: “(1) Newly
discovered evidence, 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 . . . or local government, and
either the legislature has expressly provided that the change in the law is to be applied retroactively,

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The State argues that Kozol’s PRP must be dismissed as untimely because

he failed to file it within the one-year time limit prescribed by RCW 10.73.090. We

agree. Kozol concedes that, for purposes of finality under RCW 10.73.090(3), “the

2001 judgment became final when the mandate on the direct appeal issued on

February 24, 2004.” Thus, under RCW 10.73.090, Kozol had until February 24,

2005 to file a PRP regarding his convictions, but he did not file the instant PRP

until June 1, 2022. Because Kozol waited more than one year after the 2001 J&S

became final to file the instant PRP, it is untimely under RCW 10.73.090. Kozol

attempts to avoid this one-year time limit, but for the reasons that follow each such

attempt fails.

A

Kozol first attempts to avoid the one-year time limit prescribed by RCW

10.73.090 by claiming that “the new judgment entered in November 2020 that

became final on June 8, 2021, started the one year deadline of RCW 10.73.090.”

We disagree.

Our Supreme Court squarely rejected an argument similar to Kozol’s in In

re Personal Restraint of Adams, 178 Wn.2d 417, 309 P.3d 451 (2013). Like Kozol

here, Adams filed a successful CrR 7.8 motion in 2009 to vacate his 2001 judgment

and sentence as invalid on its face because his offender score was incorrectly

calculated using prior washed out convictions. Id. at 420-21. After being

resentenced based on the recalculated offender score, Adams filed a PRP in the

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.” RCW 10.73.100. Kozol expressly disavows reliance on these
exceptions.

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No. 84098-3-I

Court of Appeals challenging his convictions based on ineffective assistance of

counsel. Id. at 421. To avoid the one-year time limit prescribed by RCW

10.73.090, Adams argued that “because his original judgment and sentence was

not ‘valid on its face,’ the collateral attack time bar is measured from the date of

his 2009 judgment and sentence and therefore is timely.” Id. at 422.

The Washington Supreme Court rejected Adams’ argument. The court

began its analysis with its prior decision in Coats, where a petitioner was

resentenced after the court concluded that his judgment and sentence was facially

invalid. Id. at 423 (citing Coats, 173 Wn.2d at 141). The Adams court observed

that all three opinions in Coats “agreed that ‘[t]he exception for facially invalid

judgments and sentences may not be used to circumvent the one-year time bar to

personal restraint petitions relating to fair trial claims.’” Id. at 423 (citing Coats,

173 Wn.2d at 141 (Chambers, J. majority), 145 (Madsen, C.J., concurring), 164

(Stephens, J., concurring)). The Adams court similarly held that a petitioner’s

remedy in such a case is limited to correcting the sentencing error that rendered

the judgment invalid. The court explained:

Because the “valid on its face” precondition is an exception, once the
one-year time limit has run, a petitioner may seek relief only for the
defect that renders the judgment not valid on its face (or one of the
exceptions listed in RCW 10.73.100). And when that defect is cured,
the entry of a corrected judgment does not trigger a new one-year
window for judgment provisions that were always valid on their face.

Id. at 424. The court added that a contrary holding would allow a petitioner to

“simply wait to raise a fair trial claim until after the trial court corrects an error that

renders the judgment and sentence invalid,” which would improperly create a

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“super exception” to the one-year time limit prescribed by RCW 10.73.090. Id. at

425,

As in Adams, Kozol’s timeliness argument fails because none of his

challenges to his convictions relate to the invalidity of the 2001 J&S. While Kozol

correctly argued in his 2018 CrR 7.8 motion that the 2001 J&S was facially invalid

due to an incorrect calculation of his offender score, see In re Pers. Restraint of

Goodwin, 146 Wn.2d 861, 867-68, 50 P.3d 618 (2002), his remedy for this facial

invalidity is limited to correcting the sentencing error, which the trial court did when

it resentenced him using a correct offender score, see Adams, 178 Wn.2d at 427.

Also similar to Adams, the facial invalidity of the 2001 J&S does not permit Kozol

to challenge the underlying conviction on other grounds, including those asserted

in Kozol’s PRP.

Kozol argues that we should not follow Adams because it was purportedly

overruled by In re Personal Restraint of Fowler, 197 Wn.2d 46, 51, 479 P.3d 1164

(2021). In Fowler, the petitioner’s convictions were affirmed on direct appeal by

the Court of Appeals, but the Supreme Court remanded to correct a sentencing

error regarding legal financial obligations. Id. at 50; State v. Fowler, 185 Wn.2d

1016, 1016, 368 P.3d 170 (2016). After Fowler discovered the attorney he initially

hired to file a PRP had not performed any work, Fowler hired a new attorney who

filed a “placeholder” petition within one year of when his amended judgment and

sentence became final and then filed a supplemental petition after the one-year

time limit had expired. Fowler, 197 Wn.2d at 51-52. The Supreme Court held that

Fowler’s PRP was timely under the doctrine of equitable tolling due to his diligent

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pursuit of his rights and extraordinary circumstances involving his initial attorney’s

“egregious attorney misconduct.” Id. at 56-58. In a footnote, the Supreme Court

stated:

We note that the State argues the one-year clock began to run on
May 2, 2016, when the Court of Appeals opinion mandated, and not
October 19, 2016, when the superior court entered its amended
judgment and sentence. . . . The Court of Appeals correctly held that
the time bar ran in October, not May. We decline to revisit this
holding.

Id. at 51 n.2. According to Kozol, this footnote effectively overruled Adams—even

though it does not discuss or even mention Adams—because it acknowledges that

the filing deadline in RCW 10.73.090 “must run from the date of entry of a new

judgment, after the first one was vacated.”

Contrary to Kozol’s argument, the footnote in Fowler cannot properly be

read to overrule the Supreme Court’s previous opinion in Adams. That is so for at

least three reasons. First, the Fowler footnote addressed when the “one-year clock

beg[ins] to run” to file a PRP under RCW 10.73.090(3) following an amended

judgment and sentence entered upon remand on direct appeal. Fowler, 197

Wn.2d at 51 n.2. In contrast, Kozol’s instant PRP collaterally attacks a new

judgment and sentence issued in connection with a CrR 7.8 motion for relief from

judgment. This distinction is important because, unlike Fowler, Kozol already had

an opportunity to collaterally attack his convictions and firearm enhancements

when he filed his first PRP after the conclusion of his direct appeal.

Second, whether the trial court exercises discretion upon resentencing is

irrelevant to the issue of timeliness here. In Adams, like in Kozol’s case, the court

reviewed the trial court’s ruling granting the petitioner’s “motion to vacate his

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judgment and sentence” after it exercised discretion in “resentenc[ing] Adams . . .

based on the recalculated offender score.” 178 Wn.2d at 421. Thus, Adams

implicitly recognized that the deadline to attack the validity of the underlying

convictions under RCW 10.73.090 does not restart even if the trial court exercises

discretion in correcting a sentencing error.

Third, our Supreme Court has held that a later holding overrules a prior

holding sub silentio only “when it directly contradicts the earlier rule of law.” State

v. Lupastean, 200 Wn.2d 26, 40, 513 P.3d 781 (2022) (quoting Lunsford v.

Saberhagen Holdings, Inc., 166 Wn.2d 264, 280, 208 P.3d 1092 (2009)). Here,

the footnote in Fowler does not directly contradict the clear rule of law set forth in

Adams that disposes of the exact timeliness argument presented by Kozol. For

this reason too, we decline to conclude that Fowler overruled Adams. 5

Kozol also urges us to disregard Adams because it did not analyze federal

cases standing for the proposition that a newly issued judgment restarts the

statutory period to file a federal habeas petition under 28 U.S.C. § 2244(d)(1). 6

But as Kozol recognizes, federal cases interpreting 28 U.S.C. § 2244 are not

binding on Washington courts applying RCW 10.73.090. Additionally, the federal

statute does not include facial invalidity language as our state statute does.

Compare 28 U.S.C. § 2244(d)(1) with RCW 10.73.090. For these reasons, we

5 Kozol’s reliance on State v. Waller, is similarly misplaced because the sole issue in Waller was

“whether RAP 2.2(b)(3) gives the State the right to appeal an order granting a CrR 7.8(b) motion.”
197 Wn.2d 218, 224, 481 P.3d 515 (2021). Waller did not discuss Adams or address the issue of
timeliness under RCW 10.73.090.
6 See Magwood v. Patterson, 561 U.S. 320, 130 S. Ct. 2788, 177 L. Ed. 2d 592 (2010); Burton v.

Stewart, 549 U.S. 147, 127 S. Ct. 793, 166 L. Ed. 2d 628 (2007); Berman v. United States, 302
U.S. 211, 212, 58 S. Ct. 164, 82 L. Ed. 204 (1937); Colbert v. Haynes, 954 F.3d 1232 (9th Cir.
2020); Smith v. Williams, 871 F.3d 684 (9th Cir. 2017).

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No. 84098-3-I

decline to follow federal precedent and adhere to our Supreme Court’s holding in

Adams. As Adams squarely holds, the 2020 J&S did not restart the one-year time

limit under RCW 10.73.090 for Kozol to challenge his underlying convictions.

B

Next, Kozol argues that “the ‘actual innocence’ exception to RCW 10.73.090

allows for consideration of this petition.” Again, we disagree.

The actual innocence doctrine allows a petitioner to avoid the one-year time

limit prescribed by RCW 10.73.090 only if a petitioner satisfies the “probability

standard.” In re Pers. Restraint of Weber, 175 Wn.2d 247, 255-56, 284 P.3d 734

(2012). Our Supreme Court explained that standard as follows:

Under the probability standard, the petitioner is required to show that
in light of new evidence “it is more likely than not that no reasonable
juror would have found [the defendant] guilty beyond a reasonable
doubt.” This considers “what reasonable, properly instructed jurors
would do.” To be credible, a gateway actual innocence claim
requires the petitioner to support his allegations with new, reliable
evidence. This may include exculpatory scientific evidence,
trustworthy eyewitness accounts, or critical physical evidence that
was not presented at trial.

Id. at 258-59 (quoting Schlup v. Delo, 513 U.S. 298, 324-329, 115 S. Ct. 851, 130

L. Ed. 2d 808 (1995)) (internal citations omitted). As discussed below, the

evidence upon which Kozol relies to show that he is actually innocent of the crimes

of attempted murder and burglary does not satisfy this high evidentiary burden.

First, Kozol relies on a 2020 declaration from his former neighbor, Amal

Osman, stating she saw and talked to Kozol while he was walking his dog at 10

p.m. on November 15, 2000—the same time the assailant was attacking Wolter.

Osman’s declaration does not satisfy the probability standard because it is directly

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contradicted by Kozol’s and his girlfriend’s trial testimony that they were watching

television inside their apartment at 10 p.m. on the night of the attack. Moreover,

Kozol never mentioned during his trial testimony that he interacted with Osman on

the night of the attack, even though this fact would have provided him with a crucial

alibi defense. The timing of Osman’s declaration also undermines its reliability

because she signed it almost two decades after purportedly witnessing the events

in question. See State v. Riofta, 166 Wn.2d 358, 372-73, 209 P.3d 467 (2009)

(courts should consider “how the timing of the submission and the likely credibility

of the affiants bear on the probable reliability of that evidence”) (quoting Schlup,

513 U.S. at 332).

Second, Kozol relies on an anonymous letter signed by “A repenting addict”

addressed to the Seattle Post Intelligencer in 2009 in which the author confesses

to having committed the crimes for which Kozol was convicted. The author claims

that to pay off a debt to a drug dealer, they obtained keys to Kozol’s storage unit

and Wolter’s house from a construction worker, stole Kozol’s taser and firearm

from his storage unit, and then attacked Wolter with those weapons while

burglarizing his house. The author did not reveal their identity because “I’d spend

the rest of my life in prison.” This letter does not satisfy the probability standard

due, in part, to the author’s anonymity. See Riofta, 166 Wn.2d at 372-73 (we

review posttrial affidavits casting blame on third parties with “a fair degree of

skepticism”) (citing Herrera v. Collins, 506 U.S. 390, 423, 113 S. Ct. 853, 122 L.

Ed. 2d 203 (1993) (O’Connor, J., concurring)). Furthermore, it is highly improbable

that a stranger would have been given keys to Wolter’s house and Kozol’s storage

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unit, stolen the exact weapons used in the attack in the four-day window between

when Kozol put the taser in the storage and when the attack occurred, fitted the

firearm with a silencer (which Kozol denied owning), and then used Kozol’s

weapons while burglarizing a house that happened to belong to Kozol’s ex-

roommate Wolter.

Third, Kozol claims that the State withheld evidence of Det. Gulla’s past

professional misconduct in violation of its disclosure requirements under the Brady

rule, which requires prosecutors to disclose any impeachment evidence known to

the prosecution that is “material to guilt or punishment.” In re Pers. Restraint of

Lui, 188 Wn.2d 525, 565, 397 P.3d 90 (2017) (citing Strickler v. Greene, 527 U.S.

263, 280-81, 119 S. Ct. 1936, 144 L. Ed. 2d 286 (1999)). Kozol provides no

authority for the proposition that a petitioner may prove an actual innocence claim

using evidence of a Brady violation. See In re Pers. Restraint of Campbell, 27 Wn.

App. 2d 251, 264, 533 P.3d 144 (2023) (“If a party provides no citation in support

of a proposition, we may assume that counsel, after diligently searching, has found

none.”). Regardless, none of Det. Gulla’s misdeeds had any connection to Kozol’s

case and would not have changed the outcome of trial given the overwhelming

evidence of Kozol’s guilt as detailed above. See Lui, 188 Wn.2d at 565

(undisclosed evidence is not material if there is only a “mere possibility” that it

“might have helped the defense or might have affected the outcome of the trial”)

(quoting State v. Kwan Fai Mak, 105 Wn.2d 692, 704-05, 718 P.2d 407 (1986)).

Fourth, Kozol contends that the state destroyed evidence that he claims,

upon further forensic testing, would have proven he did not commit these crimes.

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This evidence includes the anonymous confessor’s letter and envelope, a Rolex

watch the anonymous confessor claims to have left at the crime scene, a hair found

in Wolter’s office, light bulbs from Wolter’s office, shells from the shotgun that

Wolter kept behind his bed, and Kozol’s Audi. Here too, Kozol cites no authority

for the proposition that improper destruction of evidence can be used to establish

actual innocence. Additionally, the destroyed evidence had little importance or

relevance. The letter, envelope, and light bulbs had already been forensically

tested. It is unclear how forensically testing the hair and shotgun shells would have

established Kozol’s innocence because Wolter’s assailant was wearing a ski mask

and gloves, which would have prevented him from transmitting hair or fingerprints

to the crime scene. An eyewitness saw Kozol driving the Audi on the day of the

attack, which directly contradicts his claim that further testing of the vehicle would

have proven it was not drivable that day. And it is highly unlikely that a person

who was “committing robberies to support [their] drug habit” would wear a valuable

watch while burglarizing a house and then point to the watch as “the only thing I

can offer to prove I was the one who committed this crime.”

In sum, because Kozol’s proffered new evidence does not show that it is

more likely than not that no reasonable juror would have found him guilty, the

actual innocence doctrine does not allow him to avoid the one-year time limit

prescribed by RCW 10.73.090.

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C

Lastly, Kozol argues that this court has “inherent authority” to “waive” or

“disregard” the one-year time limit under RCW 10.73.090 and should exercise that

authority here. This argument also fails.

Kozol’s inherent authority argument is largely premised on Fowler, which

does not apply here. As noted above, the Fowler court analyzed this “inherent

authority” in the context of a petitioner’s request for equitable tolling, which permits

a court to disregard the filing deadline under RCW 10.73.090 where the petitioner

shows “(1) that they diligently pursued their rights and (2) that an extraordinary

circumstance prevented a timely filing.” Fowler, 197 Wn.2d at 54. The court

defined “extraordinary circumstances” to include bad faith, deception, false

assurances by another, and egregious misconduct by the petitioner’s attorney. Id.

Lastly, the court emphasized that equitable tolling is a remedy “used sparingly . . .

when justice requires it.” Id. at 53.

Even if Kozol had properly raised the type of equitable tolling argument

contemplated by Fowler (which is unclear at best), we would not grant such relief

because he has neither diligently pursued his rights nor demonstrated exceptional

circumstances. Kozol has been aware of the grounds for all of his fair trial claims

for many years, but he waited to raise them until after he was resentenced in

2020. 7 Unlike the petitioner in Fowler, Kozol fails to show how his delay in filing

7 Kozol became aware of his claims regarding prosecutorial misconduct and erroneous admission

of the silencer book at his trial in 2001. Kozol learned of Det. Gulla’s past professional misconduct
in 2005. By 2011, Kozol had learned of the State’s destruction of the repenting addict’s letter and
the envelope, watch, hair, light bulbs, and shotgun shells. Regarding the Audi, Kozol has taken
the position since trial it was not drivable on the day of the attack, but he waited until 2018 to attempt
to test its drivability. Lastly, Kozol learned of the most recent basis for his ineffective assistance of
counsel claim (his trial counsel’s failure to hire a private investigator) in 2011.

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his claims was the result of bad faith, deception, false assurances, or egregious

attorney misconduct. Therefore, we decline to equitably toll the filing deadline

prescribed by RCW 10.73.090.

Kozol also argues that if we are unwilling or unable to waive, toll, or

disregard the one-year time limit prescribed by RCW 10.73.090, “the remedy is not

to dismiss the case but to transfer it to the Supreme Court or the superior court” so

that one of those courts may grant such relief. In support of transfer, Kozol cites

to RCW 2.06.030, which states, “No case, appeal or petition for a writ filed in . . .

[the Court of Appeals] shall be dismissed for the reason that it was not filed in the

proper court, but it shall be transferred to the proper court.” Kozol’s argument fails

because the cases upon which he relies have analyzed this statute in determining

whether a PRP should be transferred to the Supreme Court as a successive

petition, which the Court of Appeals is prohibited from considering under RCW

10.73.140. See In re Pers. Restraint of Bell, 187 Wn.2d 558, 560-61, 387 P.3d

719 (2017); In re Pers. Restraint of Perkins, 143 Wn.2d 261, 264, 19 P.3d 1027

(2001). Because Kozol’s PRP is time barred, we dismiss it as RCW 10.73.090

requires.

III

Finally, Kozol argues that dismissing his PRP as untimely would violate his

constitutional right to access to the courts because it “allows the State to detain

someone for decades in its prisons without allowing for collateral attacks on a new

judgment.” We disagree.

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The right of access to the courts is protected by article 1, section 10, of our

state constitution, which mandates that “[j]ustice in all cases shall be administered

openly, and without unnecessary delay.” 8 In describing this right, our Supreme

Court has explained, “That justice which is to be administered openly is not an

abstract theory of constitutional law, but rather is the bedrock foundation upon

which rest all the people’s rights and obligations. In the course of administering

justice the courts protect those rights and enforce those obligations.” Doe v. Puget

Sound Blood Ctr., 117 Wn.2d 772, 780, 819 P.2d 370 (1991). But at the same

time, the constitutional right of access to the courts exists “within the broader

framework of the law as expressed in statutes” and is “not absolute.” Id. at 782;

Whitney v. Buckner, 107 Wn.2d 861, 866, 734 P.2d 485 (1987). Put another way,

litigants are not entitled to unlimited access but rather “meaningful access to the

courts.” Id. at 866.

Consistent with this constitutional right and corresponding constraints, our

Supreme Court has held that the “statute of limitations on petitions for collateral

review [prescribed by RCW 10.73.090] is constitutional.” See In re Pers. Restraint

of Runyon, 121 Wn.2d 432, 445, 853 P.2d 424 (1993). In Runyon, the court

rejected the petitioners’ argument that this one-year time limit violates the

suspension clause of the Washington Constitution 9 because it is not a “strict time

8 While Kozol also relies on various amendments to the United States Constitution, he does not

argue, nor does he establish, that the federal constitution provides greater protection than our state
constitution. We therefore rely on and apply Washington precedent regarding article 1, section 10,
of our state constitution.
9 “The privilege of the writ of habeas corpus shall not be suspended, unless in case of rebellion or

invasion the public safety requires it.” W ASH. CONST. art. I, § 13.

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No. 84098-3-I

limit on habeas petitions” given the many “substantial” exceptions to this time limit

codified in RCW 10.73.090 and .100. Id. at 444-45. The court also rejected the

petitioners’ equal protection claims 10 because it found the one-year time limit to be

a reasonable means for achieving the legitimate state objective of controlling the

flow of PRPs. Id. at 449.

More broadly, the Runyon court concluded that RCW 10.73.090 withstands

constitutional scrutiny because it appropriately balances prisoners’ rights to seek

habeas relief with the State’s interest in controlling prisoner litigation. The court

noted that “[i]n streamlining the postconviction collateral review process, RCW

10.73.090 et seq. have preserved unlimited access to review in cases where there

truly exists a question as to the validity of the prisoner’s continuing detention.” Id.

at 453. And it added that “postconviction collateral review was never intended to

be a ‘superconstitutional procedure enabling [the petitioner] to institute appeal

upon appeal and review upon review in forum after forum ad infinitum.’” Id. at 453-

54 (quoting Holt v. Morris, 84 Wn.2d 841, 852, 529 P.2d 1081 (1974) (Hale, C.J.,

concurring)). Emphasizing this latter point, the court concluded, “This general 1–

year time limit is a reasonable and constitutional method for ensuring that collateral

review does not degenerate into such a procedural merry-go-round.” Id. at 454.

Here too, Kozol’s right to access the courts to file a second PRP is “not

absolute” and must be exercised “within the broader framework of the law as

expressed in statutes,” including RCW 10.73.090-.100. Doe, 117 Wn.2d at 782;

10 The federal and state equal protection clauses require that “‘persons similarly situated with
respect to the legitimate purpose of the law receive like treatment.’” Id. at 448 (citing U.S. CONST.
amend. XIV and W ASH. CONST. art. I, § 12 and quoting Harmon v. McNutt, 91 Wn.2d 126, 130, 587
P.2d 537 (1978)).

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Whitney, 107 Wn.2d at 866. Consistent with this statutory framework, Kozol has

been afforded ample access to the courts to challenge his convictions. After being

convicted by a jury, he has challenged his convictions on direct appeal and

collateral attack in state court. He was able to obtain meaningful relief, despite the

one-year time limit prescribed by RCW 10.73.090(1), by showing that his offender

score had been calculated incorrectly—as the exception for facially invalid

judgments and sentences allows. But Kozol does not have a constitutional right

to pursue a second PRP challenging his decades old convictions on grounds

entirely unrelated to the offender score. Kozol’s argument that he has been denied

meaningful access to the courts, like his other attempts to avoid one-year time limit

for filing a PRP, thus fails.

We dismiss Kozol’s PRP as time barred.

WE CONCUR:

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