FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PHONSAVANH

PHONGMANIVAN,

Petitioner-Appellant,

v.

RON HAYNES, SCCC

Superintendent,*

Respondent-Appellee.

No. 16-36018

D.C. No. 

2:16-cv-00556-RAJ

ORDER CERTIFYING

QUESTION TO THE

WASHINGTON

SUPREME COURT

Filed March 19, 2019*

Before: Sandra S. Ikuta and Morgan Christen, Circuit

Judges, and Jennifer Choe-Groves,** Judge.

Order

* Ron Haynes has replaced Margaret Gilbert as Superintendent of

Stafford Creek Corrections Center.

** The Honorable Jennifer Choe-Groves, Judge for the United

States Court of International Trade, sitting by designation.
2 PHONGMANIVAN V. HAYNES

SUMMARY***

Habeas Corpus

The panel certified to the Washington Supreme Court the

following question:

Is the denial of a personal restraint petition

final when the Washington Supreme Court

denies a motion to modify an order of its

Commissioner denying discretionary review

of the state appellate court’s denial, or is the

denial not final until the Clerk of the

Washington Court of Appeals issues a

certificate of finality as required by Rule

16.15(e)(1)(c) of the Rules of Appellate

Procedure?

COUNSEL

Ann K. Wagner, Assistant Federal Public Defender, Federal

Public Defender Office, Seattle, Washington, for PetitionerAppellant.

Alex Kostin, Assistant Attorney General, Corrections

Division; Robert W. Ferguson, Attorney General; Office of

the Washington Attorney General, Olympia Washington; for

Respondent-Appellee.

*** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
PHONGMANIVAN V. HAYNES 3

ORDER

We respectfully ask the Washington Supreme Court to

answer the certified question presented below, pursuant to

Revised Code of Washington (“RCW”) § 2.60.020, because

we have concluded that a dispositive question of state law

applies to the claim, and therefore “it is necessary to ascertain

the local law of [Washington] state in order to dispose of

[this] proceeding and the local law has not been clearly

determined.” 

This case involves a statutory tolling claim under

28 U.S.C. § 2244(d)(2). The Antiterrorism and Effective

Death PenaltyAct of 1996 (“AEDPA”) sets a one-year statute

of limitations for filing a federal petition for a writ of habeas

corpus. 28 U.S.C. § 2244(d); see also Williams v. Filson, 908

F.3d 546, 557 (9th Cir. 2018). The limitations period shall

run from the latest of “the date on which the judgment

became final by the conclusion of direct review or the

expiration of the time for seeking such review.” 28 U.S.C.

§ 2244(d)(1)(A). The statute of limitations is tolled when “a

properly filed application for State post-conviction or other

collateral review with respect to the pertinent judgment or

claim is pending.” Id. § 2244(d)(2). The definition of

“pending” for the purposes of statutory tolling is a question

of state law. See Carey v. Saffold, 536 U.S. 214, 219–20

(2012); Hemmerle v. Schriro, 495 F.3d 1069, 1077 (9th Cir.

2007).

The issue here is when Appellant’s personal restraint

petition (“PRP”) proceeding was no longer “pending” under

Washington state law for the purposes of calculating the

statute of limitations applicable to Appellant’s federal habeas

petition.
4 PHONGMANIVAN V. HAYNES

I

We summarize the material facts. Phongmanivan was

found guilty of two counts of Washington Assault in the First

Degree, RCW § 9A.36.011, with two firearm enhancements,

after a jury trial in 2011. Phongmanivan was sentenced to

306 months.

Phongmanivan appealed his conviction. The Washington

Court of Appeals affirmed the conviction and denied the

motion for reconsideration. Phongmanivan petitioned the

Washington Supreme Court for review, which the court

denied on December 11, 2013. Phongmanivan did not file a

petition for writ of certiorari with the Supreme Court of the

United States within the ninety-day window. 

Phongmanivan filed a PRP in the Washington Court of

Appeals on February 4, 2015. The Washington Court of

Appeals issued an order dismissing the PRP on its merits on

May 4, 2015. Phongmanivan then filed a petition for review

in the Washington Supreme Court, which the Commissioner

of the Washington Supreme Court treated as a motion for

discretionary review under Rule 16.14(c) of the Washington

Rules of Appellate Procedure (“RAP”) and denied. 

Phongmanivan requested that the Washington Supreme Court

vacate or modify the Commissioner’s ruling. The

Washington Supreme Court denied Phongmanivan’s motion

to modify in the PRP proceedings on February 10, 2016. The

Washington Court of Appeals filed a certificate of finality on

April 1, 2016. 

Phongmanivan filed his federal habeas petition with the

United States District Court for the Western District of

Washington on April 9, 2016. The district court, adopting the
PHONGMANIVAN V. HAYNES 5

magistrate judge’s report and recommendation, held that

Phongmanivan untimely filed his petition and dismissed his

case. The court found that the one-year statute of limitations

for Phongmanivan’s habeas petition began to run on March

12, 2014, after Phongmanivan’s ninety-day window to file a

petition for writ of certiorari with the Supreme Court of the

United States. The statute of limitations was tolled 329 days

later, on February 4, 2015, when Phongmanivan filed his

personal restraint petition. Relevant here, the court

determined that the statute of limitations resumed when the

Washington Supreme Court denied the motion to modify the

Commissioner’s ruling on February 10, 2016. By the time

Phongmanivan signed his federal habeas petition on April 9,

2016, the statute of limitations had run for a total of 388 days

and therefore was untimely. The lower court denied

Phongmanivan’s claim for equitable tolling and dismissed his

habeas petition with prejudice.

II

Phongmanivan argues on appeal that his federal habeas

petition was timely because his PRP was pending under

Washington law within the meaning of 28 U.S.C.

§ 2244(d)(2) (and so the one-year limitations period did not

resume running) until the Clerk of the Washington Court of

Appeals issued the certificate of finality on April 1, 2016. 

There is some support for this argument in state law. RAP

12.7, entitled “Finality of Decision,” provides that the

Washington Court of Appeals retains “the power to change or

modify its decision” until one of three events occurs. RAP

12.7(a). One of these events includes the issuance of a

certificate of finality with respect to a PRP, pursuant to RAP

16.15(e). Phongmanivan supports his argument further by

citing State v. Kilgore, 216 P.3d 393 (Wash. 2009) (en banc),
6 PHONGMANIVAN V. HAYNES

in which the Washington Supreme Court looked to RAP 12.7

to help determine the finality of a conviction for purposes of

retroactive application of a new rule of law. In reaching its

conclusion, Kilgore distinguished a case involving finality of

a conviction in the PRP context in part because that case “did

not address finality for purposes of retroactivity.” See id. at

397 n.5.

Respondent-Appellee contends, and the district court

concluded, that Phongmanivan’s PRP proceeding was no

longer pending for the purposes of 28 U.S.C. § 2244(d)(2)

when the Washington Supreme Court denied the motion to

modify the Commissioner’s ruling because the issuance of a

certificate of finality is a ministerial act. There is also

support for this conclusion in state law. RAP 16.15(e)

defines a certificate of finality as “the written notification of

the clerk of the appellate court to the trial court and the

parties that the proceedings in the appellate court have come

to an end.” The Washington 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 (Wash.

1994) (per curiam). Moreover, RAP 16.15(e)(1)(c) requires

the clerk of the Court of Appeals to file a certificate of

finality involving a PRP petition immediately “upon denial of

the motion for discretionary review” by the Washington

Supreme Court, rather than ordering the certificate of finality

to be issued thirty days after the Court of Appeals decision is

filed (unless a motion for reconsideration or discretionary

review is filed earlier) or thirty days after the Court of

Appeals denies a motion for reconsideration (unless a motion

for discretionary review is filed earlier), as in RAP
PHONGMANIVAN V. HAYNES 7

16.15(e)(1)(a) and (b). This suggests that after the

Washington Supreme Court denies the motion for

discretionary review, the court has nothing left to do but

“performance of a ministerial function.” Hemmerle, 495 F.3d

at 1077.

III

In light of the foregoing discussion, and because the

answer to this question is “necessaryto ascertain the local law

of this state in order to dispose” of this appeal, RCW

§ 2.60.020, we respectfully certify to the Washington

Supreme Court the following question:

Is the denial of a personal restraint petition

final when the Washington Supreme Court

denies a motion to modify an order of its

Commissioner denying discretionary review

of the state appellate court’s denial, or is the

denial not final until the Clerk of the

Washington Court of Appeals issues a

certificate of finality as required by Rule

16.15(e)(1)(c) of the Rules of Appellate

Procedure?

We do not intend our framing of this question to restrict

the Washington State Supreme Court’s consideration of any

issues that it determines are relevant. If the Washington State

Supreme Court decides to consider the certified question, it

may in its discretion reformulate the question. Broad v.

Mannesmann Anlagenbau AG, 196 F.3d 1075, 1076 (9th Cir.

1999).
8 PHONGMANIVAN V. HAYNES

If the Washington Supreme Court accepts review of the

certified question, we designate Appellant Phongmanivan as

the party to file the first brief pursuant to RAP 16.16(e)(1).

The clerk of our court is hereby ordered to transmit

forthwith to the Washington Supreme Court, under official

seal of the United States Court of Appeals for the Ninth

Circuit, a copy of this order and all relevant briefs and

excerpts of record pursuant to RCW §§ 2.60.010, 2.60.030,

and RAP 16.16.

Further proceedings in our court are stayed pending the

Washington Supreme Court’s decision on whether it will

accept review, and if so, receipt of the answer to the certified

question. This case is withdrawn from submission until

further order from this court. The Clerk is directed to

administratively close this docket, pending further order.

The panel will resume control and jurisdiction on the

certified question upon receiving an answer to the certified

question or upon the Washington Supreme Court’s decision

to decline to answer the certified question. When the

Washington Supreme Court decides whether or not to accept

the certified question, the Parties shall file a joint report

informing this court of the decision. If the Washington

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.

It is so ORDERED.