United States District Court, W.D. Washington, Seattle
ORDER DIRECTING RESPONDENT TO FILE SUPPLEMENTAL
Alice Theiler United States Magistrate Judge.
a federal habeas action filed under 28 U.S.C. § 2254.
Petitioner Maurice Thrower seeks to challenge in this action
his 2013 King County Superior Court convictions on two counts
of child molestation in the first degree. (Dkt. 5.)
Respondent filed an answer to the petition on March 20, 2019
in which he argued that petitioner's federal habeas
petition was barred by the statute of limitations, 28 U.S.C.
§ 2244(d), and should therefore be denied with
prejudice. (Dkt. 13.) Petitioner filed a response to
respondent's answer on April 8, 2019 in which he argues
that he is entitled to equitable tolling of the limitations
period. (Dkt. 15.) Respondent, in a reply brief filed on
April 11, 2019, concedes that equitable tolling is
appropriate in this case and that petitioner's petition
should therefore be deemed timely. (Dkt. 16.)
to § 2244(d)(1), a one-year period of limitation applies
to an application for a writ of habeas corpus filed 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).
The one-year limitation period is tolled for any
“properly filed” collateral state challenge to
the state conviction. 28 U.S.C. § 2244(d)(2). The
statute of limitations is also subject to equitable tolling
in appropriate cases. Holland v. Florida, 560 U.S. 631
parties in this case agree that petitioner's conviction
became final on or about March 1, 2016, 90 days after the
Washington Supreme Court denied petitioner's petition for
review on direct appeal. The parties also agree that the
statute of limitations then ran for 279 days until petitioner
filed his personal restraint petition in the Washington Court
of Appeals on December 6, 2016. Respondent argued in his
answer to petitioner's federal habeas petition that the
statute of limitations was then tolled, in accordance with
§ 2244(d)(2), until July 10, 2018 when the Washington
Supreme Court Commissioner issued a ruling denying review in
petitioner's personal restraint proceedings.
(See Dkt. 13.) Respondent further argued that
following issuance of the Commissioner's ruling, another
153 days passed before petitioner filed his federal habeas
petition on December 11, 2018, thus rendering the petition
untimely because a total of 432 days elapsed between the date
petitioner's conviction became final and the date he
filed his federal habeas petition.
in his response to respondent's answer, argues that he is
entitled to equitable tolling of the limitations period based
on events which occurred after July 10, 2018 which were not
reflected in respondent's answer. (See Dkt. 15.)
Specifically, petitioner maintains that after receipt of the
Commissioner's ruling deny review, he prepared a motion
to modify the Commissioner's ruling and filed it on
August 2, 2018 by presenting the document to his prisoner
counselor in accordance with Washington Department of
Corrections (“DOC”) outgoing legal mail policies
and procedures. (Id.) However, SCCC mail services
never mailed the motion, a fact which petitioner claims he
did not learn until after receiving respondent's answer
to his federal habeas petition on March 25, 2019.
(Id.) Petitioner submitted in conjunction with his
response documentation which appears to confirm that
petitioner attempted to mail documents to the Washington
Supreme Court on August 2, 2018. (Id., Apps. B, C.)
in his reply brief, notes that the state court record
contains no record of a motion to modify the
Commissioner's ruling and that petitioner's federal
habeas petition was therefore filed outside the statute of
limitations because it wasn't received until December
2018. (See Dkt. 16.) Respondent acknowledges,
however, that petitioner has now presented proof that he
submitted a timely motion to modify to DOC staff for mailing
to the Washington Supreme Court and that DOC staff failed to
mail the motion. (Id.) Respondent also concedes that
he has no evidence to rebut petitioner's assertion that
he did not know the motion to modify had not been mailed.
(Id.) Respondent therefore agrees that under these
unique circumstances petitioner should receive equitable
tolling for his federal habeas petition at least until he
became aware the state court proceedings had ended, which
would be no later than the date on which the certificate of
finality was issued, October 26, 2018, and that the petition
should be deemed timely due to equitable tolling.
Court has reviewed the state court record submitted by
respondent in support of his answer as well as the evidence
submitted by petitioner in support of his response to
respondent's answer and concurs with the parties that
equitable tolling of the limitations period until at least
October 26, 2018 is warranted. This renders petitioner's
federal habeas petition timely and, thus, it is appropriate
now to do as respondent requests and permit him to file a
supplemental answer addressing petitioners' petition.
on the foregoing, the Court hereby ORDERS as follows:
(1) Respondent's original answer (Dkt. 13) is STRICKEN
from the Court's motion calendar.
(2) Respondent shall file a supplemental answer addressing
petitioner's federal habeas petition not later than
thirty (30) days from the date on
which this Order is filed. As a part of such answer,
respondent shall state whether petitioner has exhausted
available state remedies and whether an evidentiary hearing
is necessary. The answer will be treated in accordance with
LCR 7(d)(3). Accordingly, on the face of the answer,
respondent shall note it for consideration on the fourth
Friday after filing. Petitioner may file and serve a response
not later than the Monday immediately preceding the Friday
designated for consideration of the matter, and respondent
may file and serve a reply not later than the Friday
designated for consideration of the matter.
(3) The Clerk shall send copies of this Order to petitioner,
to counsel for respondent, and to the Honorable Richard A.
 In order to receive equitable tolling,
a petitioner must show “(1) that he has been pursuing
his rights diligently, and (2) that some extraordinary
circumstance stood in his way.” Pace v.
DiGuglielmo, 544 U.S. 408, 418 (2005). “[T]he
requirement that extraordinary circumstances ‘stood in
his way' suggests that an external force must cause the
untimeliness, rather than, as we have said, merely
‘oversight, miscalculation or negligence on [the
petitioner's] part, all of which would preclude
application of equitable ...