Full Opinion

Filed Washington State Court of Appeals Division Two November 10, 2026 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II In the Matter of the Personal Restraint of: No. 61754-4-II consolidated with KIMLIS TEK, Nos. 61757-9-II & 61764-1-II Petitioner. UNPUBLISHED OPINION VELJACIC, C.J. — In these personal restraint petitions (PRPs), Kimlis Tek challenges his numerous 2011 convictions under Thurston County Superior Court Cause Nos. 10-1-00807-5, 10- 1-00911-0, and 10-1-01957-3. Tek contends that he received ineffective assistance of counsel because counsel did not inform him of the immigration consequences of his convictions. He further contends that the immigration proceedings are unconstitutional because they violate double jeopardy, amount to cruel and unusual punishment, and violate due process. These claims are either procedurally time barred or not properly before this court. Therefore, Tek’s petition is dismissed. 61754-4-II / 61757-9-II / 61764-1-II FACTS I. BACKGROUND FACTS1 During a period of political unrest in Cambodia in the 1980s, Tek’s mother relocated to a refugee camp in Thailand. Tek was born at the refugee camp. When he was two years old, he immigrated to the United States. In 2009, Tek joined the military and soon after met his former wife, Andrea.2 Tek later committed several crimes against Andrea and was convicted of assault in the first degree with deadly weapon and domestic violence enhancements under cause no. 10-1-00807-5, witness tampering with a domestic violence enhancement under cause no. 10-1-00911-1, and 36 counts of violation of a pretrial no-contact order with a domestic violence enhancement under cause no. 10-1-01957-3. The trial court entered his judgment and sentences in June 2011. Tek appealed and this court affirmed. II. RELEASE AND CrR 7.8 MOTIONS On May 9, 2025, Tek was released from incarceration and transferred to the custody of Immigration and Customs Enforcement. Active immigration proceedings were initiated. Tek then filed identical CrR 7.8 motions under each cause number to vacate his convictions, alleging defense counsel failed to apprise him of the immigration consequences of his convictions. In the State’s response, the prosecutor in Tek’s case filed a declaration that she would not have made a favorable plea offer that would have removed offenses with immigration 1 A more complete recitation of the background facts is included in this court’s opinion from Tek’s direct appeal, State v. Tek, Nos. 42227-1-II, 42237-9-II, and 42247-6-II, (Wash. Ct. App. April 23, 2013) (unpublished), https://www.courts.wa.gov/opinions/pdf/D2%2042227-1- II%20%20Unpublished%20Opinion.pdf. 2 Because the parties share the same last name, Andrea’s first name is used for clarity. No disrespect is intended. 2 61754-4-II / 61757-9-II / 61764-1-II consequences based on her concern for the safety of the victim, the victim’s son, and the community. The superior court found the motions were untimely and transferred all three matters to this court as PRPs under CrR 7.8(c)(2). We consolidated the matters. ANALYSIS I. PRP PRINCIPLES A. Legal Principles To prevail in a PRP, the petitioner must establish by a preponderance of the evidence that (1) a constitutional error that resulted in actual and substantial prejudice or (2) a fundamental defect of a nonconstitutional nature that inherently resulted in a complete miscarriage of justice. In re Pers. Restraint of Meredith, 191 Wn.2d 300, 306, 422 P.3d 458 (2018). Establishing “actual and substantial prejudice” means more than merely showing the possibility of prejudice; the petitioner must establish that if the alleged error had not occurred, the outcome more likely than not would have been different. In re Pers. Restraint of Meippen, 193 Wn.2d 310, 315-16, 440 P.3d 978 (2019). RAP 16.7(a)(2) requires a petitioner to specifically identify the evidence available to support the factual allegations in the PRP. In re Pers. Restraint of Wolf, 196 Wn. App. 496, 503, 384 P.3d 591 (2016). Conclusory allegations are insufficient to warrant relief. Id. We have three options when considering a PRP. First, if the petitioner does not show actual prejudice for constitutional errors or a fundamental defect resulting in a miscarriage of justice for nonconstitutional errors, we will dismiss the PRP. In re Pers. Restraint of Yates, 177 Wn.2d 1, 17-18, 296 P.3d 872 (2013). Second, if the petitioner has proved actual prejudice or a fundamental defect resulting in a miscarriage of justice, we will grant the PRP. Id. at 18. And third, if the petitioner makes at least a prima facie showing but the merits of their contentions cannot be 3 61754-4-II / 61757-9-II / 61764-1-II resolved solely on the record, we will remand the matter to the trial court for a full hearing on the merits or a reference hearing. Id. B. Timeliness Principles A personal restraint petition generally must be filed within one year of the date that the petitioner’s judgment and sentence becomes final. RCW 10.73.090(1). Tek’s judgment and sentence became final in 2013, when this court issued its mandate following his direct appeal. RCW 10.73.090(3)(b). Tek did not file this petition until 2025, well over one year later. Therefore, this petition is time barred unless Tek shows that his judgment and sentence is facially invalid or was not rendered by a court of competent jurisdiction. RCW 10.73.090(1). Or Tek must show that his petition is based solely on one of the seven exceptions to the time bar in RCW 10.73.100. We will dismiss a PRP if it is untimely. In re Pers. Restraint of Williams, 200 Wn.2d 622, 634, 520 P.3d 933 (2022). II. INEFFECTIVE ASSISTANCE Tek contends that he received ineffective assistance of counsel because counsel did not advise him of the immigration consequences of his convictions. He contends this issue is not time barred based on RCW 10.73.100(1) (newly discovered evidence) and RCW 10.73.100(7) (significant change in the law).3 We disagree. 3 In Tek’s reply to his CrR 7.8 motion below, he argued that his petition was also timely based on the doctrine of equitable tolling. Because Tek raised equitable tolling for the first time in his reply, the issue was not properly raised. Therefore, we decline to address it. In re Pers. Restraint of Rhem, 188 Wn.2d 321, 327, 394 P.3d 367 (2017). 4 61754-4-II / 61757-9-II / 61764-1-II A. Newly Discovered Evidence. Although RCW 10.73.100(1) exempts a PRP from the one-year time bar when it is based on “[n]ewly discovered evidence [and] the defendant acted with reasonable diligence in discovering the evidence and filing the petition or motion,” Tek’s argument is cabined under an ineffective assistance of counsel claim. Ineffective assistance of counsel claims are not excepted from the time bar. In re Pers. Restraint of Stoudmire, 141 Wn.2d 342, 349, 5 P.3d 1240 (2000). Assuming this exception applied to an ineffective assistance of counsel claim, Tek appears to argue that changed immigration policies in this country constitute newly discovered evidence under RCW 10.73.100(1) to toll the time bar. We reject this assertion because new immigration policies are not newly discovered evidence. And even if we were to consider new immigration policies as newly discovered evidence, Tek fails to address the five factors for newly discovered evidence or provide anything more than a broad statement that his immigration consequences constitute newly discovered evidence. This is not sufficient. Wolf, 196 Wn. App. at 503. Accordingly, Tek does not show an exception to the time bar under RCW 10.73.100(1). 2. Significant Change in the Law A PRP is exempt from the one-year time bar when “[t]here has been a significant change in the law.” RCW 10.73.100(7). The change must be material to the conviction and the legislature, or a court, must have determined that the change in the law is to be applied retroactively. Id. But again, Tek’s argument is cabined within a claim of ineffective assistance of counsel, which is not an exception to the time bar. Stoudmire, 141 Wn.2d at 349. As such, this claim fails. Even if we were to consider his assertion, the significant change in the law that Tek alleges occurred before he was sentenced. In Padilla v. Kentucky, 559 U.S. 356, 374, 130 S. Ct. 1473, 5 61754-4-II / 61757-9-II / 61764-1-II 176 L. Ed. 2d 284 (2010), the United States Supreme Court held that defense counsel must inform their client whether a plea carries a risk of deportation and failure to do so can constitute ineffective assistance of counsel. In In re Pers. Restraint of Yung-Cheng Tsai, 183 Wn.2d 91, 103, 351 P.3d 138 (2015), the Washington Supreme Court held that Padilla constituted a significant change in the law that triggered an exemption from the one-year time bar for PRPs, to be retroactively applied. Padilla was decided in March 2010. Tek’s offenses took place between May 2010 and December 2010. His judgment and sentences were entered in June 2011. Based on this timeline, Padilla was not a significant change in the law; rather, it was the law at the time of Tek’s offenses, trial, and sentencing. Therefore, Tek does not show a significant change in the law to toll the time bar under RCW 10.73.100(7). Tek’s ineffective assistance of counsel claim is time barred. II. CHALLENGES TO THE IMMIGRATION PROCEEDINGS Tek next raises several arguments relating to the constitutionality of his immigration proceedings. He argues that the immigration consequences violate double jeopardy, constitute cruel and unusual punishment, and violate due process. These arguments are not properly raised in this court. The removal process of determining whether a noncitizen must leave the United States is a federal proceeding that begins with an arrest by an Immigration and Naturalization Service officer who has reason to believe that the arrestee is in the United States in violation of any immigration law or regulation. State v. Bustamante-Davila, 138 Wn.2d 964, 976, 983 P.2d 590 6 61754-4-II / 61757-9-II / 61764-1-II (1999). The Immigration and Nationality Act provides that “a petition for review filed with an appropriate court of appeals in accordance with this section shall be the sole and exclusive means for judicial review of an order of removal.” 8 U.S.C. § 1252(a)(5) (emphasis added). Additionally, 8 U.S.C. § 1252(b)(9) mandates that “[j]udicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States . . . shall be available only in judicial review of a final order under this section.” (Emphasis added.) Taken together, § 1252(a)(5) and § 1252(b)(9) mean that an issue involving removal must be reviewed through the federal process. In J.E.F.M. v. Lynch, 837 F.3d 1026, 1031 (9th Cir. 2016), the Ninth Circuit clarified that “any issue—whether legal or factual—arising from any removal-related activity can be reviewed only through the [federal court of appeals petition-for-review] process.” (Emphasis in original.) To the extent Tek asks us to declare his federal immigration proceedings unconstitutional based on double jeopardy, cruel and unusual punishment, or a lack of due process, those claims are not properly before us. Federal law provides that judicial review of questions of law and fact, including constitutional claims, arising from removal proceedings is available only through the judicial review process prescribed by federal law. Accordingly, we decline to consider Tek’s constitutional challenge to his federal immigration proceedings. 7 61754-4-II / 61757-9-II / 61764-1-II CONCLUSION Because Tek’s claims are either procedurally time barred or not properly before us, we dismiss this petition. A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040, it is so ordered. Veljacic, C.J. We concur: Cruser, J. Price, J. 8