F 1-I:E ', 

IN CLERKS OFFICE 

8I.IJIReMS C'.OURT, STATE OF WASHINOTON 

~. DAn;NOV 1 ;:1 ~,C._~· CHIEF JUST! 

IN THE SUPREME COURT OF THE STATE OF WASHINGTON 

In the Matter of the Personal Restraint of 

NO. 90712-9 

JAVIER RUIZ-SANABRIA, 

Petitioner. ENBANC 

Filed: NOV 1 2 2015 -----------------

PER CURIAM-Hundreds of Washington prison inmates annually file 

personal restraint petitions and other forms of collateral challenge to their judgment 

and sentences. The large majority of these petitioners are unrepresented by counsel, 

and for many of them, a timely postconviction motion or personal restraint petition is 

their last opportunity to seek relief from a final judgment and sentence. See RCW 

7.36.130(1) (no court or judge shall inquire into the legality of any judgment or 

process whereby the party is in custody unless a petition is filed within the time 

allowed by RCW 10.73.090 and 10.73.100). The restrictive statutes have as a 

corollary court rules that are intended to ensure relevant court records are reviewed 

before a determination is made on a timely personal restraint petition that may 

foreclose the availability of further relief. In this instance, Javier Ruiz-Sanabria timely 
No. 90712-9 PAGE2 

filed a motion in superior court to withdraw his guilty plea to several sex offenses. 

The court transferred his motion to Division One of the Court of Appeals, but without 

indicating the basis for the transfer and without transferring all records filed in 

relation to Ruiz-Sanabria's CrR 7.8 motion. Considering the motion as a personal 

restraint petition based solely on the partial record that was transmitted, and without 

requesting a response from the State, the acting chief judge of Division One dismissed 

the petition as frivolous. 

We take this occasion to clarify the criteria a superior court must consider 

before transferring a postconviction motion to the Court of Appeals, the relationship 

between the rules governing personal restraint petitions and evidentiary prerequisites 

that a petitioner must meet, and when the petitioner's allegations may require the 

court to consult existing court records that the petitioner has not produced. We have 

said that the petitioner must demonstrate that he has competent, admissible evidence 

to establish the facts that entitle him to relief, and that bare assertions and conclusory 

allegations are insufficient. See In re Pers. Restraint of Rice, 118 Wn.2d 876, 886, 828 

P.2d 1086 (1992). But if the petitioner makes specific and material factual allegations 

within the petitioner's knowledge about court proceedings that can be answered by the 

State, the Court of Appeals should require a response that includes the relevant court 

documents. In this instance, remand to the Court of Appeals is warranted for reasons 

explained below. 

Ruiz-Sanabria is a citizen of Mexico. In 2008, the State charged him in 

King County Superior Court with three counts of second degree child rape, one count 

of first degree child rape, and two counts of first degree child molestation. RuizSanabria fled to Mexico but was apprehended and brought back to Washington in 
No. 90712-9 PAGE3 

2012. He eventually pleaded guilty to one count of first degree child rape, one count 

of second degree child rape, and two counts of first degree child molestation. Because 

he did not appeal, his judgment and sentence became final when it was filed by the 

clerk of the trial court in September 2012. See RCW 10.73.090(3)(a). 

On December 27, 2012, Ruiz-Sanabria timely filed a motion in superior 

court to withdraw his guilty pleas, along with a supporting affidavit, claiming that 

defense counsel was ineffective in relation to the pleas. See CrR 7.8. On March 26, 

2013, Ruiz-Sanabria filed a memorandum of authorities in support of his motion to 

withdraw. Ruiz-Sanabria asked the court to direct the State to file a response. The 

superior court did not direct the State to file a response until November 15, 2013. 1 It 

appears that in lieu of a response, the State filed in the superior court a deputy 

prosecutor's affidavit, a transcript of Ruiz-Sanabria's plea hearing, and a request to 

transfer the matter to the Court of Appeals for consideration as a personal restraint 

petition. See CrR 7 .8( c )(2). It appears the superior court mailed the State's 

submissions to Ruiz-Sanabria on December 9, 2013. On December 16, 2013, and over 

Ruiz-Sanabria's written objection, the court transferred his motion to Division One of 

the Court of Appeals, ruling in its entirety that "[ d]efendant has filed a post-conviction 

motion. Pursuant to CrR 7.8(c)(2), the matter is transferred to the Court of Appeals for 

consideration as a personal restraint petition." The superior court transferred some 

records pertaining to Ruiz-Sanabria's CrR 7.8 motion to the Court of Appeals, but a 

number of records were not transferred, including the original CrR 7. 8 motion and 

supporting affidavit, the deputy prosecutor's affidavit, and the plea hearing transcript. 

1 In the meantime, Ruiz-Sanabria filed a petition for writ of mandamus in this court, 

seeking to compel the superior court to direct the State to file a response to his 

postconviction motion. In re Pers. Restraint of Ruiz-Sanabria, No. 89430-2 (Wash. 

Oct. 21, 2013 ). This court dismissed the petition as moot after the superior court ordered 

the State to file a response. 
No. 90712-9 PAGE4 

In the Court of Appeals, Ruiz-Sanabria renewed his objection to the 

transfer and asked the Court of Appeals to ( 1) send a copy of his petition to the King 

County prosecutor and (2) direct the prosecutor to respond to the petition. Without 

seeking a response, the acting chief judge dismissed the petition, rejecting RuizSanabria's objection to the transfer and ruling that his "self-serving statements" were 

insufficient to support his claims. The acting chief judge also faulted Ruiz-Sanabria 

for not providing court records, including a copy of his plea hearing transcript. 

Ruiz-Sanabria filed a motion in this court for discretionary review. At the 

court's direction, the State filed an answer supported by relevant records. We now 

grant review. 2 

As indicated, Ruiz-Sanabria initiated his collateral challenge by way of a 

CrR 7.8 motion filed in superior court. The pleading requirements for such a motion 

are simple, requiring only a statement of grounds on which the defendant seeks relief, 

"supported by affidavits setting forth a concise statement of the facts or errors upon 

which the motion is based." CrR 7.8(c)(l). In this instance, Ruiz-Sanabria appareqtly 

supported his motion with certain records and correspondence with defense counsel 

and one or more separately filed affidavits. We are somewhat unsure exactly what he 

filed because, as noted, the superior court apparently did not transfer all of the 

pertinent materials to the Court of Appeals. In any event, the deputy prosecutor's 

affidavit addresses specific paragraphs in Ruiz-Sanabria's affidavit in support of his 

CrR 7.8 motion. 

2 We also grant Ruiz-Sanabria' s motion to supplement-which we treat as a motion 

to amend-his motion for discretionary review to allege that failure to name a respondent 

violated his right to due process. See WASH. CONST. art. I, § 3. 
No. 90712-9 PAGES 

If the superior court retains a postconviction motion and denies it on the 

merits, the defendant has a right to direct appeal. RAP 2.2(a)(10). But the superior 

court must transfer a postconviction motion to the Court of Appeals for consideration 

as a personal restraint petition "unless the court determines" that the motion is not 

time barred and either the defendant has made a substantial showing of merit or a 

factual hearing is required to decide the motion. CrR 7 .8( c )(2). Here, the superior 

court merely stated that it was transferring Ruiz-Sanabria's motion in accordance with 

this rule. It would be more beneficial to the Court of Appeals if the superior court 

expressly stated the basis for the transfer. And if the superior court fails to show that it 

meaningfully engaged in the CrR 7 .8( c )(2) transfer analysis, the Court of Appeals 

should consider remanding the motion to the superior court for that purpose. 3 See 

RAP 16.8.1(c) (Court of Appeals may remand erroneously transferred CrR 7.8 motion 

to superior court).4 In any event, in this instance the Court of Appeals considered the 

motion as a personal restraint petition and dismissed it under RAP 16.11 (b), and 

Ruiz-Sanabria has exercised his right to seek discretionary review in this court. See 

RAP 16.14(c); RAP 13.5A(a)(1).5 

3 A preprinted transfer order with check boxes corresponding to CrR 7 .8( c )(2) 

criteria may serve this purpose. 4 This rule, which was not in effect when the acting chief judge considered RuizSanabria's CrR 7.8 motion, provides a summary mechanism for the Court of Appeals to 

remand transfer orders to the superior court for correction. Remand in appropriate 

circumstances had been a practice of the Court of Appeals even before adoption of 

RAP 16.8.l(c). 

5 Ruiz-Sanabria's concern that transfer of his CrR 7.8 motion deprives him of an 

opportunity to avoid the proscription against successive petitions under RCW 10.73.140 is 

misplaced. Although a CrR 7.8 motion is a form of collateral challenge for purposes of the 

statute barring successive petitions in the Court of Appeals, this court has jurisdiction to 

consider a successive petition raising a new issue even if the Court of Appeals may not. 

RCW 10.73.090(2); CrR 7.8(b); In re Pers. Restraint of Becker, 143 Wn.2d 491, 496-97, 

20 P.3d 409 (2001); In re Pers. Restraint of Stoudmire, 141 Wn.2d 342, 351-52, 5 P.3d 

1240 (2000). 
No. 90712-9 PAGE6 

Once a CrR 7.8 motion is transferred to the Court of Appeals, the motion 

becomes subject to more rigorous pleading standards applicable to personal restraint 

petitions, as set forth in RAP 16.7. In particular, the petitioner must identify "the 

evidence available to support the factual allegations" and why the petitioner is entitled 

to collateral relief for one or more reasons listed in RAP 16.4(c). RAP 16.7(a)(2)(i). If 

the evidence supporting the petitioner's factual allegations exists in court records, the 

petitioner should identify the records and where they can be found. RAP 16.7(a)(3). A 

motion conforming to the more relaxed pleading standards set forth in CrR 7.8(c)(1) 

will not necessarily meet the standards set forth in RAP 16.7. In apparent recognition 

of this fact, and reflecting the fact that most personal restraint petitioners are 

proceeding pro se, the rules authorize the clerk of the appellate court to file 

technically deficient petitions and direct the petitioner to correct the deficiencies 

within 60 days. RAP 16.8(c). 

In this instance, it appears that Ruiz-Sanabria's CrR 7.8 motion was not 

completely transferred to the Court of Appeals. In particular, it seems the initial 

motion and the supporting affidavit were not transferred. These documents were part 

and parcel of the motion to be transferred. See CrR 7.8(c)(1) (application shall be 

made by motion stating the grounds on which relief is asked and supported by 

affidavits setting forth a concise statement of the facts or errors on which the motion 

is based); CrR 8.2 (providing that CR 7(b) governs motions under the criminal rules, 

with CR 7(b) in turn providing that a motion supported by affidavits or other papers 

shall specify the papers to be used by the moving party). The record suggests the 

"Defendant's Memorandum of Authorities in Support of Motion to Withdraw Guilty 

Plea" was transferred, and that memorandum makes specific references to the 
No. 90712-9 PAGE7 

affidavit filed in support of the motion to withdraw plea. In light of this apparently 

missing record and Ruiz-Sanabria's objection to transfer below, either the Court of 

Appeals should have treated the objection to transfer as a conditional motion to amend 

the petition (if transfer was accepted), and allowed time to do so, or it should have 

remanded to the trial court with directions to transfer the entire motion file. 6 

Ruiz-Sanabria contends that the Court of Appeals should have requested a 

response from the State before it dismissed his petition. Under the rules in effect when 

the acting chief judge considered Ruiz-Sanabria' s petition, a response was not 

required if the court could determine without a response that the petition should be 

dismissed under RCW 10.73.090 or RCW 10.73.140. Former RAP 16.9 (2006). In 

turn, RCW 10.73.140 directs the Court of Appeals to determine whether a petition is 

based on frivolous grounds, and "[i]f frivolous, the court of appeals shall dismiss the 

petition ... without first requiring the state to respond to the petition."7 But in 

appropriate situations, the chief judge's decision as to whether the issues presented in 

a timely petition are frivolous is best made after considering a response and any reply. 

See RAP 16.11 (b) (the chief judge determines at the initial consideration of the 

petition the steps necessary to properly decide on the merits the issues raised by the 

petition; if, after consideration of the response and any reply, the chief judge 

determines that the issues presented are frivolous, the chief judge will dismiss the 

6 Ruiz-Sanabria complains that the Court of Appeals did not serve his transferred 

petition on the State. The rules state that the clerk of the appellate court will serve a copy of 

the personal restraint petition "on the officer or agency under a duty to respond to the 

petition." RAP 16.8(d). But we need not decide whether the Court of Appeals failed to 

comply with this rule, or whether the State was then under a "duty" to respond because 

Ruiz-Sanabria mailed a copy of his CrR 7.8 motion to the prosecutor, and the prosecutor 

was plainly aware of that motion. 

7 Current rules now direct the appellate court to dismiss a petition without 

requesting a response if it is "clearly frivolous" or clearly untimely or improperly 

successive. RAP 16.8.l(b). 
No. 90712-9 PAGES 

petition).8 Here, Ruiz-Sanabria's argument that the Court Appeals should have called 

for a response may be reasonable if one was to examine his initial motion and the 

supporting affidavits. If Ruiz-Sanabria stated with some specificity that the factual 

basis for his claim that his plea was involuntary was in part the plea colloquy, and 

even if such statements can be described as entirely self-serving, if the allegations are 

material they are factually specific enough under RAP 16.7(a)(2) to merit a 

substantive response, with copies of relevant records. RAP 16.9(a). Factual assertions 

of what occurred in court proceedings made by petitioners in support of relief are 

inherently "self-serving," but if the petitioner was present in court and had knowledge 

of what occurred, the better course is for the Court of Appeals to require the State to 

respond if the factual assertions are material and it disputes those facts. The rules 

applicable to personal restraint petitions do not explicitly require that the petitioner 

submit evidence but rather the petition must identify the existence of evidence and 

where it may be found. See RAP 16.7(a)(2). That the rules are not more rigorous in 

this regard reflects acknowledgment that prison inmates face particular difficulties in 

obtaining evidence and court records, especially if they are incarcerated outside of 

Washington. Furthermore, where an offender, like Ruiz-Sanabria, does not appeal his 

judgment and sentence, there is no direct appeal record from which to draw relevant 

documents and transcripts. In this instance, we note that the State filed in the superior 

court an affidavit refuting specific allegations Ruiz-Sanabria made in an affidavit 

supporting his CrR 7.8 motion, along with a transcript it prepared of the plea hearing. 

As indicated, those materials were apparently not transferred to the Court of Appeals, 

which is not Ruiz-Sanabria's fault. And this court was not aware of these documents 

8 For purposes of these rules, "Chief Judge" includes "Acting Chief Judge." 

RAP 16.1l(a). 
No. 90712-9 PAGE9 

until the State, at this court's direction, filed an answer to Ruiz-Sanabria's motion for 

discretionary review. 

In light of the foregoing considerations, we are unsure whether the superior 

court engaged in a meaningful CrR 7.8(c)(2) analysis before transferring the 

postconviction motion to the Court of Appeals or, if transfer was appropriate, whether 

the Court of Appeals had a sufficiently complete record to accurately determine 

whether Ruiz-Sanabria's personal restraint petition merited a response or whether it 

should have been dismissed as frivolous under RAP 16.11 (b). We thus remand this 

case to the Court of Appeals with directions to either (1) remand the motion to the 

superior court for reconsideration of CrR 7 .8( c )(2) criteria or (2) obtain from the 

superior court all pleadings, records, and correspondence filed in connection with 

Ruiz-Sanabria's CrR 7.8 motion and then reconsider his collateral attack accordingly.9 

9 For the first time in his reply to the State's answer to his motion for discretionary 

review, Ruiz-Sanabria challenges the accuracy of the Spanish translation of the crimes 

listed in his plea form and he demands an evidentiary hearing on the accuracy of the 

Spanish interpreter at this plea hearing. Because Ruiz-Sanabria improperly raises this issue 

for the first time in a motion for discretionary review, we grant the State's motion to strike 

this issue and it will not be considered by this court. See In re Pers. Restraint of Lord, 152 

Wn.2d 182, 188 n.5, 94 P.3d 952 (2004).