Opinion
No. 60807-0-I.
February 25, 2008.
Appeal from a judgment of the Superior Court for Whatcom County, No. 94-1-00117-8, Steven J. Mura, J., entered February 7, 2007.
Affirmed by unpublished per curiam opinion.
Richard Mutch appeals the denial of yet another CrR 7.8 motion challenging his 1994 convictions for rape and kidnapping. We recently affirmed the denial of two similar CrR 7.8 motions filed by Mutch, and have dismissed numerous personal restraint petitions challenging the same 1994 convictions. See State v. Mutch, Nos. 54268-1-I and 59353-6-I (filed Nov. 5, 2007). In this case, the superior court concluded the CrR 7.8 motion was time-barred. We agree.
The convictions Mutch attacks in his current motion became final in 1998. Under RCW 10.73.090 and .100, the motion is time-barred unless the convictions are invalid on their face or a statutory exception applies. Mutch argued below that his motion fell within exceptions for claims based on a material change in the law or a sentence exceeding the court's jurisdiction. But Mutch raised, and we rejected, those same arguments in our recent decision upholding the denial of Mutch's previous CrR 7.8 motions. The reasoning in that decision, which we need not repeat, applies equally here and defeats Mutch's claim.
Mutch also argued below that the time for filing this collateral attack was tolled by a federal court order involving a petition in federal court for habeas relief. But he failed to provide the superior court with a copy of the order. He also failed to provide any argument or authority supporting his implicit claim that the federal court order applies to collateral attacks in state court and tolls the time periods for any and all subsequent collateral attacks. The superior court properly concluded that Mutch's current motion is time-barred.
We note that our review of the federal court order, which is attached to Mutch's reply brief on appeal, discloses no basis for tolling the time limit for filing the collateral attack at issue in this case. The federal court concluded that Mutch had timely filed a post-conviction motion for relief in state court in 1998, that the motion was never ruled on, and therefore, under federal law, the time period for Mutch's federal habeas petition was tolled. Nothing in the court's order provides a basis to toll the applicable time limit in this case.
Finally, for the reasons stated in our decision on Mutch's earlier CrR 7.8 motions, his claim that he must be resentenced under In re Lavery, 154 Wn.2d 249, 261-62, 111 P.3d 837 (2005) is beyond the scope of review in this case and must be raised in a personal restraint petition.
Mutch's Statement of Additional Grounds for Review, which asserts the same claims raised by his counsel on appeal, is without merit.
Affirmed.