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28 REPORT AND RECOMMENDATION- 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

WANG KOO CHUNG,

Petitioner,

v.

DOUG WADDINGTON,

Respondent.

Case No. C06-5249RBL

REPORT AND

RECOMMENDATION

NOTED FOR:

January 5, 2007

This 28 U.S.C. § 2254 petition for habeas corpus relief has been referred to the undersigned

Magistrate Judge pursuant to 28 U.S.C. § 636 (b) and local Rules MJR 3 and 4. 

INTRODUCTION AND DISCUSSION 

Petitioner is challenging Pierce County Convictions for vehicular homicide and vehicular

assault. Having reviewed the file the court concludes this petition is time barred and should be

dismissed with prejudice. 

PROCEDURAL HISTORY

Petitioner was sentenced on May 10, 2002 to 54 months (Dkt. # 1). Petitioner filed a direct

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appeal which was denied April 13, 2004 by the Washington State Court of Appeals (Dkt. # 10,

Exhibit 4). Petitioner did not seek review in the state supreme court.

May 13, 2005 petitioner filed a Personal Restraint Petition (Dkt. # 10, Exhibit 6). The

petition was dismissed by the Washington State Court of Appeals on December 22, 2005 (Dkt. # 10,

Exhibit 7). January 6, 2006 petitioner filed a motion for discretionary review with the Washington

State Supreme Court (Dkt. # 10, Exhibit 8). The motion for discretionary review was denied March

3, 2006 (Dkt. # 10, Exhibit 9). Petitioner filed a motion to modify the ruling which was denied May

2, 2006 (Dkt. # 10, Exhibits 10 and 11). This Federal Habeas Corpus action was filed three days

later on May 5, 2006 (Dkt. #1). 

Respondent has filed an answer arguing the petition is time barred (Dkt. # 9). Petitioner has

filed a traverse arguing the decision of the Washington State Court of Appeals on direct appeal did

not become final until the mandate was issued (Dkt. # 10). Respondent has filed a supplemental

pleading that has been considered (Dkt. # 11). 

EVIDENTIARY HEARING

If a habeas applicant has failed to develop the factual basis for a claim in state court, an

evidentiary hearing may not be held unless (A) the claim relies on (1) a new rule of constitutional

law, made retroactive to cases on collateral review by the Supreme Court that was previously

unavailable, or there is (2) a factual predicate that could not have been previously discovered through

the exercise of due diligence; and (B) the facts underlying the claim would be sufficient to establish

by clear and convincing evidence that but for constitutional error, no reasonable fact finder would

have found the applicant guilty of the underlying offense. 28 U.S.C. §2254(e)(2) (1996). 

Petitioner's claims rely on established rules of constitutional law. Further, petitioner has not set forth

any factual basis for his claims that could not have been previously discovered by due diligence. 

Finally, the facts underlying petitioner's claims are insufficient to establish that no rational fact finder

would have found him guilty of the crime. Therefore, petitioner is not entitled to an evidentiary

hearing.

STANDARD

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Federal courts may intervene in the state judicial process only to correct wrongs of a

constitutional dimension. Engle v. Isaac, 456 U.S. 107 (1983). Section 2254 is explicit in that a

federal court may entertain an application for writ of habeas corpus “only on the ground that [the

petitioner] is in custody in violation of the constitution or law or treaties of the United States.” 28

U.S.C. § 2254(a)(1995). The Supreme Court has stated many times that federal habeas corpus relief

does not lie for errors of state law. Lewis v. Jeffers, 497 U.S. 764 (1990); Pulley v. Harris, 465 U.S.

37, 41 (1984); Estelle v. McGuire, 502 U.S. 62 (1991). 

Further, a habeas corpus petition shall not be granted with respect to any claim adjudicated

on the merits in the state courts unless the adjudication either (1) resulted in a decision that was

contrary to, or involved an unreasonable application of, clearly established federal law, as determined

by the Supreme Court; or (2) resulted in a decision that was based on an unreasonable determination

of the facts in light of the evidence presented to the state courts. 28 U.S.C. §2254(d). A

determination of a factual issue by a state court shall be presumed correct, and the applicant has the

burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C.

§2254(e)(1).

DISCUSSION

One Year Limitation Period of 28 U.S.C. § 2244(d)

Federal habeas corpus petitions are subject to a statue of limitations under the 1996

amendments to 28 U.S.C. § 2244(d), which were signed into law April 24, 1996 as part of the

Antiterrorism and Effective Death Penalty Act (AEDPA). 28 U.S.C. § 2244(d) provides as follows:

(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 removed, if the applicant was

prevented from filing by such State action;

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

have been discovered through the exercise of due diligence. 

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(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.

Petitioner’s conviction became final for purposes of 28 U.S.C. § 2244(d) 30 days after his resentencing was affirmed April 13, 2004. This is because petitioner did not exhaust any claim by

seeking discretionary review in the Washington State Supreme Court. A motion for discretionary

review needed to be filed withing 30 days of the Washington State Court of Appeals ruling. If

discretionary review had been sought, the decision would not be final until 90 days after a decision

was rendered by the state supreme court as a person has 90 days to file a petition for writ of

certiorari in the United States Supreme Court.

Petitioner argues that under Washington state court rules his conviction was not final until

the Washington State Court of Appeals issued the mandate on May 20, 2004 (Dkt. # 12, page 2). 

While petitioner’s position is correct with respect to state court filings, it is incorrect with regard to a

federal habeas petition. This issue was specifically addressed by the Ninth Circuit, and in this circuit

the date the decision is filed is the date review was concluded for federal habeas corpus purposes. 

Wixom v. Washington, 264 F.3d 894 (9th Cir. 2001).

The one year statute of limitation began to run in this case on May 13, 2004. It ran for 364

days until petitioner filed a Personal Restraint Petition on May 13, 2005. Thus, petitioner had one

day remaining on the one year time frame. The time remained tolled until May 2, 2006 when the

Washington State Supreme Court denied the motion to modify the ruling denying review (Dkt. # 10,

Exhibit 11). May 3, 2006 was the last day on the one year time frame. This petition was not filed

until May 5, 2006. The petition is time barred. 

CONCLUSION

This petition is time barred. Accordingly, the petition should be DISMISSED WITH

PREJUDICE. A proposed order accompanies this report and recommendation.

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

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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 January 5, 2007, as noted in the

caption. 

Dated this 8 day of December, 2006.

/S/ J. Kelley Arnold

J. Kelley Arnold

United States Magistrate Judge

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