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UNITED STATES DISTRICT COURT 

WESTERN DISTRICT OF WASHINGTON 

AT SEATTLE 

KELLY WETTON, 

Petitioner, 

v. 

JOSEPH LEHMAN, 

Respondent. 

CASE NO. C05-1640C 

ORDER 

 

 This matter has come before the Court on Petitioner’s petition under 28 U.S.C. § 2254 seeking 

relief from his 2000 King County Superior Court judgment and sentence. This matter was referred to the 

Honorable James P. Donohue, United States Magistrate Judge, for a Report & Recommendation (“R&R”). 

The R&R was duly filed on March 26, 2006. 

 Judge Donohue found that Petitioner’s request for relief was time barred and should be denied with 

prejudice, pursuant to 28 U.S.C. § 2244(d). Petitioner filed objections to the R&R. 

When objections are filed, the Court must make a de novo determination of those portions of the 

R&R to which objection has been made. 28 U.S.C. § 636(b)(1). In the present case, Petitioner argues that 

The Honorable John C. Coughenour

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Carey v. Saffold, 536 U.S.214 (2002), and Evans v. Chavis, 126 S.Ct. 846 (2006), change the proper 

relevant analysis and render Petitioner’s filing of his petition timely. 

The R&R explains that Petitioner’s petition was untimely filed because Petitioner’s “postconviction proceedings were concluded on September 8, 2004, the date the Supreme Court of Washington 

entered its order denying review of petitioner’s appeal with respect to his motion for new trial.” (R&R 4.) 

The R&R further explains that under the Antiterrorism and Effective Death Penalty Act of 1996 

(“AEDPA”), which sets forth a one-year statute of limitations for § 2254 petitions, Petitioner had until 

September 9, 2005, to timely file his federal habeas petition. In so concluding, the R&R found that 

Petitioner’s post-conviction proceedings were properly considered “concluded” on the date of the 

Washington Supreme Court’s decision, rather than several weeks later when the mandate was issued. 

(R&R 4 (citing White v. Klitzkie, 281 F.3d 920, 923 n.4 (9th Cir. 2002).) 

Petitioner argues that the correct inquiry in this case is not whether review had concluded, but 

whether it should have been considered “pending” until issuance of the mandate. However, this question 

makes the distinction between “concluded” and “pending” unnecessarily complicated. It is actually very 

simple. “Pending” is merely the opposite of “concluded.” See Carey, 536 U.S. at 219–20 (discussing 

various ordinary definitions of “pending,” including “not yet decided” and “until the completion of”). 

Thus, Carey’s holding that petitioners are entitled to “‘one full round’ of collateral review without the 

interference of the federal statute of limitations” (Obj. 2) has no impact on the Ninth Circuit holding in 

Wixom v. Washington that a mandate is not a decision terminating review. It also has no impact on the 

Ninth Circuit holding in White that it is the appellate court’s decision, not the issuance of the mandate, that 

marks the conclusion of review for purposes of statutory tolling under § 2244(d)(2). White, 281 F.2d at 

923 n.4. 

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Petitioner’s attempt to distinguish White on the basis that it addresses the appellate procedures 

from the Territory of Guam fails. First, the Court notes that Petitioner’s own authority, Carey and Evans, 

discusses factual scenarios arising from the peculiarities of California’s original writ system. Second, as 

the R&R observed, not only did White confirm Wixom’s recognition that a mandate is not a decisional 

event, the relevant portion of White was not affected in any way by “any unique aspect of Guam’s 

territorial procedures.” (R&R 5.) 

Finally, Petitioner’s Evans-based argument that a federal court may only independently determine 

whether a state court proceeding was “pending” in the absence of clear direction from the state court or a 

clear indication that a particular request for appellate review was timely or untimely (Obj. 3) is applicable 

only to California cases affected by California’s unique original writ system and its use of “reasonable” 

rather than specific time limits. See Evans, 126 S. Ct. at 853. 

For these reasons, the Court finds that the R&R correctly concluded that Petitioner’s § 2254 

petition was untimely filed. The Court therefore ADOPTS the R&R and DISMISSES Petitioner’s federal 

habeas petition with prejudice, pursuant to 28 U.S.C. § 2244(d). Petitioner’s motion for oral argument is 

DENIED. 

 SO ORDERED this 9th day of May, 2006. 

 

 

A

UNITED STATES DISTRICT JUDGE 

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