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REPORT AND RECOMMENDATION

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

KELLY WETTON, )

)

Petitioner, ) CASE NO. C05-1640-JCC-JPD

)

v. )

)

JOSEPH LEHMAN, ) REPORT AND RECOMMENDATION 

)

Respondent. )

____________________________________)

INTRODUCTION AND SUMMARY CONCLUSION

Petitioner is currently in community custody under the supervision of the Washington

Department of Corrections. He has filed a petition under 28 U.S.C. § 2254 seeking relief from his

2000 King County Superior Court judgment and sentence. Respondent has filed an answer to the

petition in which he argues that the petition is untimely under 28 U.S.C. § 2244(d). Respondent

also argues that two of petitioner’s three claims are unexhausted and procedurally barred. 

Petitioner has filed a traverse in which he argues that his petition is timely, and that he is entitled

to relief with respect to one of his three grounds for federal habeas relief. Petitioner expressly

withdraws the two grounds for relief which respondent argues are unexhausted. Petitioner has

also filed a motion for oral argument on the timeliness question. Respondent opposes that motion.

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REPORT AND RECOMMENDATION

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The Court, having reviewed petitioner’s petition, the briefing of the parties with respect to

the petition and the pending motion for oral argument, and the portions of the state court record

submitted by respondent, concludes that petitioner’s federal habeas petition should be dismissed,

with prejudice, as untimely under 28 U.S.C. § 2244(d).

PROCEDURAL HISTORY

On August 15, 2000, petitioner was found guilty, following a jury trial, on two counts of

vehicular homicide and one count of VUCSA, possession of cocaine. (Dkt. No. 9, Ex. 1 at 1.) On

October 6, 2000, petitioner was sentenced to a term of 60 months confinement, and to a term of

community placement. (Id., Ex. 1 at 3.) Following his sentencing, petitioner filed a direct appeal

in the Court of Appeals of Washington. (See id., Ex. 5.) On April 1, 2002, the Court of Appeals

issued an unpublished opinion affirming petitioner’s convictions. (Id., Ex. 4.) 

Petitioner thereafter filed a motion in the Court of Appeals seeking reconsideration of its

ruling affirming his conviction. (Id., Ex. 7.) That motion was denied on May 2, 2002. (Id., Ex.

8.) Petitioner next filed a petition for review in the Supreme Court of Washington. (Id., Ex. 9.) 

The Supreme Court denied review without comment on December 3, 2002. (Id., Ex. 10.) The

Court of Appeals issued its mandate terminating direct review on December 13, 2002. (Id., Ex.

11.)

While his appeal was pending in the state courts, petitioner filed a motion for new trial in

the King County Superior Court. (See id., Ex. 3.) The Superior Court denied the motion for new

trial and petitioner appealed that ruling to the Court of Appeals of Washington. (See id., Exs. 3

and 12.) The State thereafter filed a motion on the merits to affirm the Superior Court’s denial of

petitioner’s motion for new trial. (Id., Ex. 15.) On September 24, 2003, the Court of Appeals

Commissioner issued a ruling granting the State’s motion on the merits to affirm. (Id., Ex. 3.)

Petitioner filed a motion to modify the commissioner’s ruling, but that motion was denied. 

(Id., Exs. 16 and 17.) Petitioner next filed a petition for review in the Supreme Court of

Washington. (Id., Ex. 18.) On September 8, 2004, the Supreme Court issued an order denying

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the petition for review without comment. (Dkt. No. 9, Ex. 19.) The Court of Appeals issued a

mandate terminating review on September 28, 2004. (Id., Ex. 20.) 

On September 28, 2005, petitioner signed his federal habeas petition. (Dkt. No. 1.) The

petition was received by the Court for filing on the same date. (Id.)

DISCUSSION

On April 24, 1996, the President signed into law the Antiterrorism and Effective Death

Penalty Act of 1996 (AEDPA) which worked substantial changes in the law of federal postconviction relief. One of those changes was to adopt a one year statute of limitations for § 2254

actions. See 28 U.S.C. § 2244(d)(1) (1996). The one year limitations period starts 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 filing a petition for writ of certiorari with the United States Supreme Court. See Bowen

v. Roe 188 F.3d 1157, 1158-59 (9th Cir. 1999). The Supreme Court of Washington denied

petitioner’s petition for discretionary review on December 3, 2002. Petitioner had 90 days after

the entry of that ruling (as opposed to the issuance of the state mandate), or until approximately

March 3, 2003, to file a petition for a writ of certiorari in the United States Supreme Court. See

Rules 13.1 and 13.3 of the Rules of the Supreme Court of the United States. Because petitioner

did not file a petition for certiorari, his conviction became final on or about March 3, 2003. 28

U.S.C. § 2244(d)(1)(A). 

Section 2244(d)(2) provides that “the time during which a properly filed application for

State post-conviction or collateral review with respect to the pertinent judgment or claim is

pending shall not be counted toward any period of limitation under this subsection.” In this case,

the time during which petitioner’s motion for new trial was pending in the State courts does not

count toward the one year limitation period. Because petitioner filed his motion for new trial

while his direct appeal was pending, the one year limitation period did not begin to run until the

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proceedings related to petitioner’s motion for new trial were concluded in the State courts. At

issue in this case is the date on which petitioner’s post-conviction proceedings were concluded in

the State courts.

Respondent argues that petitioner’s post-conviction 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, and that the statute of limitations

began to run the following day. Respondent thus argues that the statute of limitations expired on

September 9, 2005. Petitioner, in contrast, argues that his post-conviction proceedings remained

pending until September 28, 2004, the date the Court of Appeals issued its mandate in those

proceedings. He thus argues that his federal habeas petition, which was filed on September 28,

2005, is timely.

The Ninth Circuit has held that it is the decision of the state appellate court, not issuance

of the mandate, that signals the conclusion of review. See White v. Klitzkie, 281 F.3d 920, 923 n.4

(9th Cir. 2002)(citing Wixom v. Washington, 264 F.3d 894, 897-98 (9th Cir. 2001)). Petitioner

attempts to distinguish these cases from the case presented here. Specifically, petitioner argues

that Wixom is distinguishable because the Ninth Circuit there addressed the issue of when a

Washington state conviction is final for purposes of 28 U.S.C. § 2244(d)(1), which is a different

issue than the one presented here; i.e., when a state post-conviction proceeding is deemed pending

for purposes of § 2244(d)(2). Petitioner also argues that White is distinguishable because it

addresses the appellate procedures from the Territory of Guam and not the State of Washington. 

Petitioner’s assertion to the contrary, the Ninth Circuit’s decisions in both White and

Wixom dictate the result in this case. In both cases, the Ninth Circuit recognized that the issuance

of a mandate is a ministerial act and is not an event which marks the conclusion of review. While

the ultimate issue resolved by the Ninth Circuit in Wixom was the issue of when a conviction

becomes final for purposes of § 2244(d)(1)(A), the Court’s discussion of the import of the

mandate 

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in state post-conviction proceedings is still relevant to the issue of when a state post-conviction is

deemed pending for purposes of § 2244(d)(2). 

And, in fact, the Ninth Circuit made this point clear when, in the White case, it relied on

Wixom to resolve the question of whether it was the decision of the appellate court, or the entry of

the mandate, which marks the conclusion of review for purposes of statutory tolling under 

§ 2244(d)(2). While petitioner attempts to distinguish the White case on the grounds that it

addressed appellate procedures from the Territory of Guam, there is no indication in the opinion

that the Ninth Circuit’s decision was based upon any unique aspect of Guam’s territorial

procedures. 

This Court concludes, based upon the Ninth Circuit’s decisions in both Wixom and White,

that petitioner’s state post-conviction proceedings remained pending only until the Supreme Court

of Washington issued its order denying review on September 8, 2004. Petitioner therefore had

until September 8, 2005, to file his federal habeas petition. Petitioner’s federal habeas petition

was not filed until September 28, 2005. Thus, petitioner’s petition must be deemed untimely

unless he can establish that he is entitled to some other form of tolling.

The statute of limitations is subject to equitable tolling. Calderon v. United States District

Court (Beeler), 128 F.3d 1283, 1288 (9th Cir. 1997), overruled in part on other grounds by,

Calderon v. United States District Court (Kelly), 163 F.3d 530 (9th Cir. 1998)(en banc). 

However, the Ninth Circuit has made clear that “[e]quitable tolling will not be available in most

cases, as extensions of time will only be granted if ‘extraordinary circumstances’ beyond a

prisoner’s control make it impossible to file a petition on time.” Calderon, 128 F.3d at 1288

(citing Alvarez-Machain v. United States, 107 F.3d 696, 701 (9th Cir. 1997)). The Ninth Circuit

further explained in Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999), that “when external

forces, rather than a petitioner’s lack of diligence, account for the failure to file a timely claim,

equitable tolling of the statute of limitations may be appropriate.” Petitioner does not argue that

he is entitled to equitable tolling of the federal statute of limitations. 

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REPORT AND RECOMMENDATION

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Because petitioner filed his petition outside of the § 2254 statute of limitations period, this

Court recommends that petitioner’s federal habeas petition be dismissed, with prejudice, pursuant

to 28 U.S.C. § 2244(d). This Court further recommends that petitioner’s motion for oral

argument be denied as petitioner fails to establish that oral argument is necessary in order to

adequately resolve the procedural issues discussed above. A proposed order accompanies this

Report and Recommendation.

DATED this 29th day of March, 2006.

AJAMES P. DONOHUE

United States Magistrate Judge 

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