                                                                  Ronald R. Carpenter
                                                                  Suprerne Court Clerk


         IN THE SUPREME COURT OF THE STATE OF WASHINGTON


                               )
In the Matter of the Personal Restraint of                  No. 89792-1
                               )
ROBERT LEE YATES, JR.,         )
                               )                              EnBanc
                   Petitioner. )
------------.)                                      Filed _ _ _J_U_L_0_9_2_01_5__


       OWENS, J. -      Thirteen years ago, a jury convicted Robert Lee Yates Jr. of

two counts of aggravated first degree murder and sentenced him to death. We

affirmed his conviction and sentence in 2007. Yates now files this personal restraint

petition, claiming that he received ineffective assistance of counsel at his trial.

However, personal restraint petitions must be filed within one year of a judgment and

sentence becoming final (with certain exceptions). RCW 10.73.090, .100 (listing

exceptions). Here, Yates filed his personal restraint petition seven years after his

judgment and sentence became final. Since his petition does not meet any of the

statutory exceptions to the one-year filing requirement, we dismiss it as untimely.
In re Pers. Restraint of Yates
No. 89792-1


                                          FACTS

       The bodies ofYates's victims were found in four Washington counties. The

Spokane County prosecutors negotiated a deal with Yates in which he received a life

sentence in exchange for pleading guilty to 13 murder charges in three of those

counties-Spokane County, Walla Walla County, and Skagit County. State v. Yates,

161 Wn.2d 714, 737, 168 P.3d 359 (2007). Prosecutors in the fourth county, Pierce

County, attended some initial meetings with the other prosecutors about the possible

plea deal but ultimately decided to file charges separately rather than participate in the

plea deal. Id. at 735-37.

        Pierce County charged Yates with two counts of first degree murder with

aggravating circumstances for the deaths of the two women whose bodies were found

in Pierce County-Connie Ellis and Melinda Mercer. ld. at 728-29, 732. In 2002,

Yates was convicted ofthose charges and sentenced to death. ld. at 732-33. We

affirmed those convictions and his death sentence in 2007. I d. at 794. In 2008, Yates

filed a timely personal restraint petition to challenge his death sentence, claiming

ineffective assistance of counsel and 24 other grounds for relief. In re Pers. Restraint

of Yates, 177 Wn.2d 1, 15, 296 P.3d 872 (2013). We dismissed that personal restraint

petition in 2013. I d. at 66.

        In 2014, Yates filed this personal restraint petition, alleging that his right to

effective assistance of counsel under the Sixth Amendment to the United States



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No. 89792-1


Constitution was violated by his trial counsel's failure to move that venue was

improper in Pierce County. Yates argues that although the two bodies were found in

Pierce County, it is possible that the murders actually occurred in King County. He

explains that his trial counsel had been searching for a way to "limit the discretion of

the Pierce County Prosecuting Attorney" and argues that they were ineffective in

failing to move for improper venue. Reply Br. at 7. Notably, Yates's trial counsel did

move for a change of venue, arguing that Yates could not receive a fair trial in Pierce

County, but the trial court denied that motion. As part of this personal restraint

petition, Yates's trial lawyers filed declarations stating that it never occurred to them

to move for improper venue, and that they now believe that was "a mistake" and "a

very significant error." Decl. of Roger Hunko at 3; Decl. of Mary Kay High at 1-2.

        In his reply brief, Yates implicitly raises a new claim that he received

ineffective assistance of counsel from his postconviction counsel (his appointed

counsel for his first personal restraint petition) because his attorneys failed to raise

this improper venue claim in a timely personal restraint petition. 1 Reply Br. at 9, 13.




1
  In his personal restraint petition, the sole ground for relief stated by Yates was that he
"received defective legal representation during his trial, in violation of the Sixth
[Amendment]." Pers. Restraint Pet. at 3 (emphasis added). In his petition, he did not
claim that he received defective legal representation postconviction.

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In re Pers. Restraint of Yates
No. 89792-1


                                  ISSUE PRESENTED

       Should Yates's personal restraint petition be dismissed as untimely because he

did not file it within one year of his judgment becoming final?

                                       ANALYSIS

        Generally, personal restraint petitions must be filed within one year of a

judgment becoming final. RCW 10.73.090. There are six statutory exceptions to this

one-year requirement, including petitions involving newly discovered evidence,

double jeopardy claims, and significant changes in the law. RCW 10.73.100.

        In Yates's personal restraint petition, he made no argument about its timeliness

despite the fact that his petition was untimely on its face (his judgment and sentence

became final in 2007 and this personal restraint petition was filed in 2014). In his

reply, he acknowledges the one-year time bar imposed by RCW 10.73.090 and

"concedes that his claims do not fit nicely under any of the statutory exceptions set

forth in RCW 10.73.100." Reply Br. at 11. He suggests two possible ways that we

might find his petition timely: (1) a broad interpretation of the newly discovered

evidence exception or (2) the creation of a new exception for claims involving

ineffective assistance of postconviction counsel in capital cases. Since he did not

raise these arguments until his reply, the State has not had an opportunity to respond

to them. Further, since he did not raise his claim of ineffective assistance of

postconviction counsel until his reply, that claim and related argument for a new time-



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No. 89792-1


bar exception are not properly before us as a technical matter. See RAP 16.7(a)(2)

(requiring personal restraint petitioners to include the grounds for relief in the

personal restraint petition); RAP 10.3( c) (limiting reply briefs to responding to issues

in the response brief). Despite these significant procedural flaws, we elect to address

Yates's two arguments regarding the time bar.

        1.     Newly Discovered Evidence Exception

        Yates suggests that we could find that his case falls under the "[n]ewly

discovered evidence" exception to the one-year time bar, RCW 10.73.100(1), if we

broadly interpreted this exception to include newly discovered evidence relating to the

ineffectiveness of trial counsel. But even if we were to adopt such a broad

interpretation, there is no newly discovered evidence involved in Yates's claim. The

only thing "new" here is that Yates's new attorney has a new idea for a claim. That is

not newly discovered evidence. Furthermore, Yates failed to address the five

requirements that a petitioner must show in order for newly discovered evidence to

constitute grounds for relief in a personal restraint petition, such as the requirement

that the evidence could not have been discovered earlier by the exercise of due

diligence. In re Pers. Restraint ofLord, 123 Wn.2d 296, 319-20, 868 P.2d 835

(1994). We find his argument regarding "newly discovered evidence" to be meritless.




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No. 89792-1


       2.      Ineffective Assistance ofPostconviction Counsel

       Yates argues that we should "craft a new exception to the time bar" specifically

for challenges based on ineffective assistance of postconviction counsel in capital

cases. Reply Br. at 13. We decline to do so at this time. First, we note that the time

bar and its exceptions are creatures of statute and thus adding additional exceptions to

the statute is a matter for the legislature, not this court. Second, as described above,

Yates failed to raise a claim of ineffective assistance of postconviction counsel until

his reply. Third, Yates fails to explore the legal basis or provide substantive legal

argument for such an exception beyond alluding to "due process principles." Id.

Finally, Yates acknowledges that we would have to overturn our precedent in order to

adopt such an exception, but he fails to explain why we should overturn our

precedent. "[W]e will not overturn prior precedent unless there has been 'a clear

showing that an established rule is incorrect and harmful.'" W. G. Clark Constr. Co. v.

Pac. Nw. Reg'! Council of Carpenters, 180 Wn.2d 54, 66, 322 P.3d 1207 (2014)

(quoting In re Rights to Waters of Stranger Creek, 77 Wn.2d 649, 653, 466 P.2d 508

(1970)). Yates does not attempt to make such a showing. For those reasons, we

decline his request to adopt a new exception to the time bar.

                                     CONCLUSION

        By statute, personal restraint petitions must be filed within one year of a

judgment and sentence becoming final unless they fall under certain statutory



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No. 89792-1


exceptions. Yates did not file this personal restraint petition within one year of his

judgment becoming final, and his petition does not fall under any statutory exception.

Therefore, we dismiss his petition.




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In re Pers. Restraint of Yates
No. 89792-1




WE CONCUR:




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