WILLIE J. MAYES, Petitioner,
MIKE OBENLAND, Respondent.
REPORT AND RECOMMENDATION
MARY ALICE THEILER, Chief Magistrate Judge.
INTRODUCTION AND SUMMARY CONCLUSION
Petitioner Willie Mayes is a Washington prisoner who is currently confined at the Clallam Bay Corrections Center in Clallam Bay, Washington. Petitioner has submitted to this Court for review a petition for writ of habeas corpus under 28 U.S.C. § 2254 challenging his 2009 King County Superior Court judgment and sentence. Respondent has filed an answer to the petition together with relevant portions of the state court record. This Court, having reviewed the petition, respondent's answer, and the balance of the record, concludes that petitioner's federal habeas petition is untimely and should therefore be dismissed.
On July 24, 2009, petitioner was found guilty, following a jury trial, of violating the Uniform Controlled Substances Act by delivering cocaine. (Dkt. 11, Ex. 1 at 1.) On December 18, 2009, petitioner was sentenced to term of 75 months confinement. ( See id., Ex. 1 at 4.) Petitioner appealed his conviction to the Washington Court of Appeals and, on March 14, 2011, the Court of Appeals issued an unpublished opinion affirming the conviction. ( See id., Ex. 2.) Petitioner did not seek review by the Washington Supreme Court and, on May 6, 2011, the Court of Appeals issued its mandate terminating direct review. ( See Dkt. 7, Appendix B.)
On March 13, 2012, petitioner filed a personal restraint petition in the Washington Court of Appeals. (Dkt. 11, Ex. 3.) The Court of Appeals issued an order dismissing the petition on November 9, 2012. ( Id., Ex. 6.) Petitioner thereafter filed a motion for discretionary review in the Washington Supreme Court and that motion was denied on April 26, 2013. ( Id., Dkts. 7 and 8.) The Court of Appeals issued a certificate of finality in petitioner's personal restraint proceedings on June 28, 2013. ( Id., Ex. 9.)
Petitioner now seeks federal habeas review of his conviction. Petitioner signed his federal habeas petition on August 11, 2013, and the petition was received for filing on August 14, 2013. ( See Dkt. 1.)
Respondent argues in his answer to petitioner's petition that the petition is untimely under the federal statute of limitations, 28 U.S.C. § 2244(d). Pursuant to §2244(d)(1), a one year period of limitation applies to an application for a writ of habeas corpus filed a by a person in custody pursuant to the judgment of a state court. The one year limitation period generally begins to run from the date of the conclusion of direct review or "the expiration of the time for seeking such [direct] review, " whichever is longer. 28 U.S.C. § 2244(d)(1)(A).
In this case, the period for direct review ended, at the latest, upon the expiration of the period for seeking review by the Washington Supreme Court of the Washington Court of Appeals' decision affirming petitioner's conviction. See Wixom v. Washington, 264 F.3d 894 (9th Cir. 2001). The Court of Appeals issued its opinion affirming petitioner's judgment and sentence on March 14, 2011. ( See Dkt. No. 1, Ex. 2.) Petitioner had 30 days from that date to file a petition for review. See Rule 13.4(a), Washington Rules of Appellate Procedure. Because petitioner did not file a petition for review, his conviction became final on or about April 13, 2011. 28 U.S.C. § 2244(d)(1)(A). Petitioner's one year statute of limitations began to run on the following day. See Corjasso v. Ayers, 278 F.3d 874, 877 (9th Cir. 2002).
The one year limitations period is tolled for any "properly filed" collateral state challenge to the state conviction. 28 U.S.C. § 2244(d)(2). Thus, the statute of limitations was tolled from March 13, 2012, the date petitioner filed his personal restraint petition, until April 26, 2013, the date petitioner's motion for discretionary review was denied by the Washington Supreme Court. Between April 14, 2011, the date the statute of limitations began to run, and March 13, 2012, 334 days ran on the statute of limitations. The statute of limitations began to run again on April 27, 2013, the day after petitioner's motion for discretionary review was denied by the Supreme Court, and expired 31 days later, on or about May 28, 2013.
The statute of limitations governing federal habeas petitions is also subject to equitable tolling. Holland v. Florida, 560 U.S. 631 (2010). However, the Ninth Circuit has made clear that equitable tolling is available "only when extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time and the extraordinary circumstances were the cause of his untimeliness." Laws v. Lamarque, 351 F.3d 919, 922 (9th Cir. 2003) (internal quotation and citation omitted). Petitioner makes no showing that he is entitled to equitable tolling of the federal statute of limitations.
As noted above, petitioner signed his federal habeas petition on August 11, 2013, over two months after the statute of limitations expired on May 28, 2013. Because petitioner filed his petition outside of the § 2254 statute of limitations period, and because petitioner has not demonstrated that he is ...