United States District Court, E.D. Washington
ORDER DISMISSING PETITION WITH PREJUDICE
O. RICE CHIEF UNITED STATES DISTRICT JUDGE.
Order filed April 3, 2019, the Court directed Petitioner to
show cause why his pro se Petition for Writ of
Habeas Corpus by a Person in State Custody pursuant to 28
U.S.C. § 2254 should not be dismissed as time-barred
under 28 U.S.C. § 2244(d). ECF No. 5. Petitioner
submitted a timely response. ECF No. 6.
admits that the Washington State Court of Appeals dismissed
his final re-sentencing appeal on August 10, 2017. ECF No. 6
at 2. He does not allege that he sought further review in the
Washington State Supreme Court. ECF No. 5 at 6.
continues to rely on the filing of a Mandate on October 16,
2017, for the commencement date of the federal limitations
period. He argues “the decision terminating review was
on October 11, 2017 . . . according to the Division III
Mandate filed on October 16, 2017.” ECF No. 6 at 2.
While Washington statutory law may determine the finality of
a state court decision for state court purposes, the Ninth
Circuit has clearly held that it is the decision of the state
appellate court, rather than the ministerial act of entry of
the mandate, which signals the conclusion of review for
purposes of the federal habeas statute. Wixom v.
Washington, 264 F.3d 894, 897-98 (9th Cir. 2001).
Therefore, the Court rejects Petitioner's argument to the
also contends that the wording of the Mandate constitutes a
“state created impediment” to his timely filing
his federal habeas petition under 28 U.S.C. §
2244(d)(1)(B). ECF No. 6 at 3. He claims the
“unconstitutionally vague” and
“ambiguous” language which mandates
“EVERY case back to the Superior Court for
further proceedings consistent with their Opinion, in case
they've ruled to reverse or remand, ” causes
confusion. Id. at 2. He alleges this entitles him to
“stop-gap-tolling, ” a general timeliness
standard unique to California state courts. See Carey v.
Saffold, 536 US. 214, 223 (2002).
makes no assertion that the Order of the Washington State
Court of Appeals dismissing his final re-sentencing appeal on
August 10, 2017 directed either a reversal or a remand. The
Court is unpersuaded that any asserted confusion regarding a
Mandate issued after the federal limitations period had
already commenced could constitute the type of impediment to
filing warranting delayed accrual of the federal limitations
period under 28 U.S.C. § 2244(d)(1)(B). In any event,
Petitioner does not state the date on which this alleged
impediment was removed or how it prevented him from timely
filing his federal habeas petition. See Bryant v. Ariz.
Att'y Gen., 499 F.3d 1056, 1060-61 (9th Cir. 2007).
stated in the previous Order, ECF No. 5 at 7,
Petitioner's judgment became final on September 9, 2017.
See 28 U.S.C. § 2244(d)(1)(A); Gonzalez v.
Thaler, 565 U.S. 134, 154 (2012) (holding “that,
for a state prisoner who does not seek review in a
State's highest court, the judgment becomes
‘final' on the date that the time for seeking such
review expires”). There being no statutory basis to
delay the onset of the federal limitations period pursuant to
28 U.S.C. § 2244(d)(1)(B)-(D), it commenced on September
9, 2017, and expired one year later, on September 9, 2018.
Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir.
Coombes presents documentation showing he did not have his
legal files between April 18, and May 4, 2018. ECF No. 6 at 9
and 11. Even assuming that Petitioner is entitled to
equitable tolling of the federal limitations period for this
16-day period, it would extend the deadline for filing the
federal habeas petition no further than September 25, 2018.
Petitioner's submission of a Personal Restraint Petition
to the Court of Appeals, Division III, on October 24, 2018,
regardless whether the state courts consider it timely, could
not toll an already expired limitations period. See
Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003)
(“section 2244(d) does not permit the reinitiation of
the limitations period that has ended before the state
petition was filed”). Consequently, the federal habeas
corpus petition submitted in February 2019 is untimely under
28 U.S.C.§ 2244(d).
reasons set forth above and in the Order to Show Cause, ECF
No. 5, IT IS ORDERED that the Petition, ECF
No. 1, is DISMISSED with prejudice as
IS SO ORDERED. The Clerk of Court is directed to
enter this Order, enter judgment, provide copies to
Petitioner, and close the file. The Court certifies that
pursuant to 28 U.S.C. § 1915(a)(3), an appeal from this
decision could not be taken in good faith, and there is no
basis upon which ...