918 F.3d 1021
9th Cir.2019Background
- Petitioner Phongmanivan was convicted in Washington state in 2011 and the Washington Supreme Court denied review on December 11, 2013; he did not petition the U.S. Supreme Court.
- He filed a personal restraint petition (PRP) in the Washington Court of Appeals on February 4, 2015; the Court of Appeals dismissed the PRP on May 4, 2015.
- Petitioner sought discretionary review in the Washington Supreme Court; the Commissioner treated it as a Rule 16.14(c) motion and denied discretionary review; petitioner moved to modify the Commissioner’s order and the Washington Supreme Court denied that motion on February 10, 2016.
- The Washington Court of Appeals clerk filed a certificate of finality as to the PRP on April 1, 2016.
- Petitioner filed a federal habeas petition on April 9, 2016; the district court ruled it untimely, concluding tolling under 28 U.S.C. § 2244(d)(2) ended when the Washington Supreme Court denied the motion to modify (Feb. 10, 2016).
- Because the dispositive question—when a PRP is no longer "pending" for tolling purposes under Washington law—turns on state-law finality rules, the Ninth Circuit certified the question to the Washington Supreme Court rather than resolve it itself.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| When does a PRP cease to be “pending” for AEDPA tolling under WA law? | Tolling continues until the Court of Appeals clerk files the certificate of finality (here, April 1, 2016). | Tolling ends when the WA Supreme Court denies the motion to modify the Commissioner’s denial because issuance of the certificate is ministerial. | Ninth Circuit certified the question to the Washington Supreme Court for authoritative state-law resolution. |
Key Cases Cited
- Williams v. Filson, 908 F.3d 546 (9th Cir. 2018) (discussing AEDPA limitations principles)
- Carey v. Saffold, 536 U.S. 214 (U.S. 2002) (state law defines when a collateral application is "pending" for tolling)
- Hemmerle v. Schriro, 495 F.3d 1069 (9th Cir. 2007) (state procedural steps determine pending status; ministerial acts may not prolong pendency)
- State v. Kilgore, 216 P.3d 393 (Wash. 2009) (interpreting RAP 12.7 in assessing finality for retroactivity purposes)
- In re Personal Restraint Petition of Lord, 870 P.2d 964 (Wash. 1994) (describing certificate of finality as clerk-issued mandate signaling end of appellate review)