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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

PHILLIP IRA SCHEFFLIN,

Petitioner,

v.

RICHARD MORGAN,

Respondent.

Case No. C05-5696FDB

REPORT AND

RECOMMENDATION 

Noted for April 21, 2006

Petitioner is a state prisoner currently incarcerated at the Stafford Creek Corrections Center

pursuant to a judgment and sentence of the Thurston County Superior Court. Mr. Schefflin seeks federal

habeas relief under 28 U.S.C. § 2254 challenging the 2003 Thurston County conviction. After a careful

review of the record, the undersigned submits the following report and recommends that the Court deny

the petition for writ of habeas corpus as untimely.

DISCUSSION

A one-year period of limitation applies to federal petitions for writ of habeas corpus. The relevant 

statute states:

(d)(1) A 1-year period of limitation shall apply to an application for a writ of habeas

corpus by a person in custody pursuant to the judgment of a State court. The limitation

period shall run from the latest of --

(A) the date on which the judgment became final by conclusion of direct 

review or the expiration of the time for seeking such review;

(B) the date on which the impediment to filing an application created by 

State action in violation of the Constitution or laws of the United States is

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REPORT AND RECOMMENDATION

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removed, if the applicant was prevented from filing by such State action;

(C) the date on which the constitutional right asserted was initially 

recognized by the Supreme Court, if the right has been newly recognized by

the Supreme Court and made retroactively applicable to cases on collateral

review; or

(D) the date on which the factual predicate of the claim or claims presented

could have been discovered through the exercise of due diligence.

(2) The time during which a properly filed application for State post-conviction or

other collateral review with respect to the pertinent judgment or claim is pending shall not

be counted toward any period of limitation under this subsection.

28 U.S.C. § 2244(d). The one year period of limitation is subject to equitable tolling, thus, the period may

be equitably tolled by the court “if ‘extraordinary circumstances’ beyond a prisoner’s control make it

impossible to file a petition on time.” Calderon v. U.S. District Court for Central District of California,

128 F.3d 1283, 1288 (9th Cir. 1997), citing Alvarez-Machain v. United States, 107 F.3d 696, 701 (9th Cir.

1997). The Ninth Circuit commented, “We have no doubt that district judges will take seriously

Congress’s desire to accelerate the federal habeas process, and will only authorize extensions when this

high hurdle is surmounted.” Id. at 1289.

Here, petitioner was convicted and sentenced by the state trial court on July 29, 2003. Mr.

Schefflin did not directly appeal his conviction. Rather, he filed a personal restraint petition in the

Washington Court of Appeals on August 16, 2004, more than one year following the date of his

conviction. The Washington Court of Appeals dismissed the Personal Restraint Petition on procedural

grounds, holding that Mr. Schefflin did not file it within the state’s applicable one-year statute of

limitations for personal restraint petitions. Mr. Schefflin challenged the court’s ruling, by filing a motion

for discretionary review by the Washington Supreme Court. On February 18, 2005, the Washington

Supreme Court affirmed the decision and thus, denied review based on statute of limitations grounds. The

Washington Court of Appeals issued a certificate of finality on May 17, 2005. 

Here, Mr. Schefflin’s petition should be denied because he has failed to file the matter in a timely

manner. Under 28 U.S.C. § 2244(d)(1)(A), “[t]he limitation period shall run from . . . the date on which

the judgment became final by the conclusion of direct review or the expiration of the time for seeking such

review . . . .” Additionally, “[t]he time during which a properly filed application for State post-conviction

or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted

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toward any period of limitation under this subsection.” 28 U.S.C. § 2244(d)(2). 

Here, Petitioner filed his habeas corpus petition a year and two months after the federal statute of

limitations period had expired. Petitioner did not seek direct review, and his conviction became final for

federal habeas purposes on August 29, 2003, which accounts for a 30 day period petitioner could have

pursued direct review. Washington Rules of Appellate Procedure 5.2(a) (The time for seeking review in

the Washington Court of Appeals began to run on July 30, 2003). The 28 U.S.C. § 2244(d)(1) one-year

statute of limitations began to run the next day, on August 30, 2003. It expired on August 30, 2004.

Mr. Schefflin filed his federal habeas corpus petition on October 17, 2005.

As noted above, Mr. Schefflin filed an untimely personal restraint petition with the Washington

Court of Appeals on August 16, 2004, and spent time seeking review of this petition until approximately

February 18, 2005, when the Washington Supreme Court affirmed the decision and thus, denied review

based on statute of limitations grounds. The time sought pursuing this remedy should not toll the running

of the statute of limitations, since the personal restraint petition was not “properly filed”, as required. See

Pace v. DiGuglielmo, ___ U.S. ___, 125 S. Ct. 1807, 1810 (2005) (holding that untimely state court

petition for post-sentence relief did not toll federal statute of limitations because petition did not constitute

“properly filed” petition).

CONCLUSION

Petitioner did not timely filed the instant petition for writ of habeas corpus. Accordingly, the Court

should deny the petition for writ of habeas corpus. Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of

the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file

written objections. See also Fed.R.Civ.P. 6. Failure to file objections will result in a waiver of those

objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140 (1985). Accommodating the time limit

imposed by Rule 72(b), the clerk is directed to set the matter for consideration on April 21, 2006, as noted

in the caption. 

DATED this 29th day of March, 2006.

/s/ J. Kelley Arnold 

J. Kelley Arnold

United States Magistrate Judge

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