F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

P H O N S A V A N H P H O N G M

A N I V A N , Petitioner-Appellant
,

v.

R O N H A Y N E S , SCCC Superintendent, * Respondent-Appellee

. No. 16-36018

D.C. No. 2:16-cv-00556-RAJ

ORDER CERTI F YI

NG QUESTI ON TO THE W ASHI NGTON SUPREME COURT

F iled March 19, 2019 *

B efore: Sandra S. I

kuta and Morg a

n Christen, Circuit J udg es, and J ennifer Choe-Groves, * * J udg e.

Order

* Ro n Hay

n es h as rep laced Marg aret Gilb ert as Su p erin ten d en t o f Staf f o rd Creek Co rrectio n s Cen ter.

** T h e H o n o r a b l e J e n n i fe r C h o e- Gro v es, J u d g e f o r th e Un ited States Co u rt o f

In tern atio n al T rad e, sittin g b y d esig n atio n

.P H O N G M A N I V A N V

. H A Y N E S 2

SUMMARY * * *

Habeas Corpus

The panel certified to the W ashing ton Supreme Court the following question:

I s the denial of a p ersonal restraint petition final when the W ashing to n Supreme Court denies a m o tion to modify an order of its C ommissioner deny ing discretionary r eview of the state appellate c o urt’s denial, or is the denial not final until the Clerk of the W ashing ton Court of A ppeals issues a certificate o f finality a s required by Rule 16.15(e)(1)(c) of the Rules of Appellate Procedure?

COUNSEL

Ann K. W a g ner, Assistant F e d eral Public Defender, F ederal Public Defender Office, Seattle, W ashing ton, for PetitionerAppellant.

Alex Kosti n , Assistant Attorney General, Corrections Divis i o n ; Robert W

. F erg uson, Attorney General; Office o f the W ashing ton Attorney General, Oly mpia W ashing ton; for Respondent-Appellee.

*** T h is su m m ary co n stitu

t es n o p art o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.P H O N G M A N I V A N V

. H A Y N E S 3

ORDER

W e respectfully ask t h e W ashing ton Supreme Court to

answer the c ertified question presented below, pursuant to Revised Code of W ashing ton (“RCW ”) § 2.60.020, because

we have c oncluded that a dispositive question of sta t e law applies to the claim, and therefore “it is necessary to ascertain the local law of [ W ashing ton] state in order to di s p o se o f [ this] pr oceeding and the local law has not been clearly determined.”

This case involves a statutory t o l l i n g claim under 28 U .S.C. § 2244(d)(2 )

. The A ntiterrorism and Effective Death Penalty Act of 1 996 (“AEDPA”) sets a one-y ear statute of limitations for filing a federal petition for a writ of h abeas
corpus. 28 U.S.C. § 2244(d); see also W illiams v. Filson
, 908 F. 3d 546, 557 (9th Cir. 2018). The limitations period sh a l l

run from the latest of “ the date on w hic h the judg ment became final by the conclusion of direct review o r t h e

ex p iration of the time for seeking such r e v i ew .” 28 U .S.C. § 2244(d)(1)(A). The statute of limitations is tolled when “a properly filed application for St ate post-conviction or other collateral review with respect t o the p ertinent judg ment o r

c l a i m i s pending .” Id. § 2 244(d)(2). The definition o f “pending ” fo r t h e purposes o f statutory tolling is a question of state law. See Carey v. Saffold
, 536 U.S. 2 1 4
, 219–20 (2012); Hemmerle v. Schriro
, 495 F .3d 1069, 1077 (9th Cir. 2007).

The issue here is when Appellant’s personal res t raint petition (“PRP”) proceeding was no long er “pending ” under W a shing ton state law f

o r the p urposes of calculating the
statute of limitations applicable to A ppellant’s federal h abeas petition.P H O N G M A N I V A N V

. H A Y N E S 4

I

W e summariz e the material facts. Phong manivan w a s found g uilty of two counts o f W ashing ton Assault in the F irst Deg ree, RCW § 9A.36.011, with two firearm enhancements,

a fter a jury trial in 2011. Phong manivan was senten c e d t o 306 months.

Phong manivan appealed his conviction. The W ashing ton C o u rt of Appeals affirmed the conviction and denied t h e motion for reco n s i d e r ation. Phong manivan petitioned the W a shing ton Supreme Court for review, w hich the court denied on D ecember 11, 2013. Phong manivan did not file a petition for writ of certior a ri with the Supreme Court o f the United States within the ninety -day window.

Phong manivan filed a PRP in the W ashing ton Court o f Appeals o n F ebruary 4
, 2015. The W ashing ton C o u r t o f Appeals issued an order dismissing the PRP on its merits on May 4, 2015. Phong manivan then filed a petition for r eview in the W ashing ton Supreme Court, which the Commissioner of t h e W a shing ton Supreme Court treated as a motion for discretionary

review under Rule 16.14(c) of the W ashing ton Rules of Appellate Pro c e d ure (“RAP”) a

nd denied. P h o n g m a n i van requested that the W ashing ton Supreme Court
vacate or modify the Commissioner’s ruling

. The W a shing ton Supreme Court d enied Phong manivan’s motion
to modify in the PRP p roceeding s on F ebruary 10, 2016. The W a shing ton Court o f Appeals filed a certificate of finality on April 1, 2016.

Phong manivan filed his f ederal habeas petition with t he United States District Co u r t f o r the W estern District o f W a shing ton on April 9, 2016. The district court, adopting theP H O N G M A N I V A N V

. H A Y N E S 5

mag istr a t e judg e’s report and recommendation, h eld that P h ong manivan untimely filed h is p etition and dismissed h i s

case. The court found that the one-y e a r statute of limitations for Phong manivan’s habeas petition beg an to run on M arch 12, 2014, after Phong manivan’s ninety -day window to file a petition for writ of ce rtiorari with the Supreme Court o f the United States. The statute of limitations was tolled 329 day s later, on F ebruary 4, 2015, when Phong mani v a n f i led his personal r estraint petition. R elevant here, the court determined t h a t the statute of limitations resumed when the W a shing ton Supreme Court denied the motion to modify the Commissioner’s rul i n g o n F ebruary 1 0, 2016. B y the time Phong manivan sig ned his federal habeas petition on April 9, 2016, the statute of limitations had r un for a total of 388 day s and therefore was unti m e l y

. T h e lower court denied Phong manivan’s claim for equitable tolling and dismissed his habeas petition with prejudice.

II

Phong manivan arg ues on appeal that his federal h abeas petition was timely because h i s PRP was pending under W a shing ton law within t h e meaning of 28 U .S.C. § 2244(d)(2) (and so t h e one-y ear limitations period did not

resume running ) until the Clerk o f t h e W ashing ton Court o f Appeals issu e d t h e certificate of finality on April 1, 2016. There is some support for this a r gu m e n t in state law. RAP 12.7, enti t l e d “F inality of Decision,” provides that the W a shing ton Court of Appeals r etains “the power to chang e o r modify it s d e c i sion” until o ne of three e vents occurs. RAP 12.7(a). One of th ese events includes the issuance of a certificate of finality with respect to a PRP, pursuant to RAP 16.15(e). Phong manivan s u p p orts his arg ument further b y citing State v. Kilgore
, 216 P.3d 3 93 (W a sh. 2 009) (en banc),P H O N G M A N I V A N V

. H A Y N E S 6

in which the W ashing ton Supreme Court looked to RAP 12.7
to help d etermine the finality o f a conviction for purposes o f retroactive a

pplicati o n of a new rule of law. I n reaching its conclusion, Kilgore d isting uished a case involving finality o f

a conviction in the PRP contex t in part because that case “ did

n o t a ddress finality for purposes of r etroactivity .” See id. a t 397 n.5.

Respo n dent-Appellee contends, and the district court concluded, that P h o n g manivan’s PRP proceeding was no long er pending for the purposes of 28 U.S.C. § 2244(d)(2)

w h e n the W ashing ton Supreme Court denied the motion t o modify the Commissioner’s ruling because the issuance of a certificate o f finality is a ministerial act. There is also support for this concl u s i o n in state law. RAP 16.15(e) defines a certificate of finality as “the written notification of the clerk o f the appellate court to the trial co u r t and the parties that the proceeding s in the appellate court have come to an end.” The W a shing ton Supreme Court has described the certificate of finality as a document that “ has traditionally been issued by the clerk’s office when review of an interlocutory decision is at an end,” which “functions essentially as a ‘mandate’ for such decisions.” In re Personal Restraint Petition of Lord
, 870 P.2d 964, 966 n.1 (W a sh. 1994) (per curiam). Moreover, RAP 16.15(e)(1)(c) requires the clerk of the Court of A ppeal s t o file a certificate o f finality involving a PRP petition immediately “upon denial o f the motion for discretionary review” by the W ashing ton Supreme Court, rather than ordering the certificate of finality
to be issued thirty day s after the Court of Appeals decision is filed ( unless a motion for reconsideration or discretionary review is filed earlier) or thirty day s after the Court o f Appeals d e nies a motion for reconsideration (unless a motion for d iscretionary review is fi led earlier), as in RAPP H O N G M A N I V A N V

. H A Y N E S 7

16.15(e)(1)(a) a

nd (b). This sug g e sts that after t he W a s hing ton Supreme Court denies the motion f o r d iscretionary review, the court has nothing left to do b u t “performance o f a ministerial function.” Hemmerle
, 4 95 F .3d at 1077.

III

I n lig ht of the f

o r e g oing discussion, and because the

answer to this question is “necessary to ascertain the local law of this state in order to dispose” of this ap p e al
, RCW § 2.60.020, we respectfully certify to the W a s hing ton Supreme Court the following question:

I s the denial of a p ersonal restraint petition final w hen the W ashing ton Supreme Court denies a motion to modify a n order o f its Commissioner deny ing discret ionary r eview of the state appellate court’s deni a l, or is the denial not final until the Clerk of the W ashing ton Court of A ppeals issues a certificate o f fina l ity as required by Rule 16.15(e)(1)(c) of the Rules of Appellate Procedure?

W e do n ot intend our framing of this question t o restrict the W ashing ton State Supreme Court’s consideration of any issues that it determines are relevant. I f the W ashing ton State S u preme Court d ecides to consider the certified question, i t may in its discretion r eformulate the question. B r o a d v

. Mannesmann A nlagenbau AG
, 196 F .3d 1075, 1076 (9th Cir. 1999).P H O N G M A N I V A N V

. H A Y N E S 8

I f the Washing ton Supreme Court accepts review of t h e certified question, we desig n a te Appellant Phong manivan a s the party to file the first brief pursuant to RAP 16.16(e)(1).

The clerk of o u r c o urt is hereby ordered to transmit forthwith to the W ashing t o n S u p reme Court, under official

sea l o f the United States Court of Appeals for the Ninth Circuit, a copy of this ord er a n d all relevant briefs a nd

ex c e rpts of record pursuant t o R CW § § 2.60.010, 2.60.030, and RAP 16.16.

F urther p r oceeding s in our c ourt a re stay ed pending the W a shi n g ton Supreme Court’s decision on whether it will accept review, and if so, receipt o f the answer to the c ertified question. T his case i s w ithdrawn from submission until further order from this court. Th e Clerk is directed to administratively

close this docket, pending further order.

T h e panel will r esume control and jurisdiction on the certified question upon r eceiving a n answe r to the c ertified question or upon the W ashing ton Supreme Court ’ s decision
to decline to answer the certified question. W hen the W a shing ton Supreme Court decides whether o r not to accept the certified quest i o n , the Parties shall file a joint report i n f o r ming this court of the d ecision. I f the W ashing ton Supreme Court accepts the certified question, the Parties shall file a joint status report every six months after the date of the acceptance, or more frequently if circumstances warrant.

I t is so ORDERED

.