Opinion
Case No. C05-1640C.
May 9, 2006
ORDER
This matter has come before the Court on Petitioner's petition under 28 U.S.C. § 2254 seeking relief from his 2000 King County Superior Court judgment and sentence. This matter was referred to the Honorable James P. Donohue, United States Magistrate Judge, for a Report Recommendation ("RR"). The RR was duly filed on March 26, 2006.
Judge Donohue found that Petitioner's request for relief was time barred and should be denied with prejudice, pursuant to 28 U.S.C. § 2244(d). Petitioner filed objections to the RR.
When objections are filed, the Court must make a de novo determination of those portions of the RR to which objection has been made. 28 U.S.C. § 636(b)(1). In the present case, Petitioner argues that Carey v. Saffold, 536 U.S. 214, (2002), and Evans v. Chavis, 126 S.Ct. 846 (2006), change the proper relevant analysis and render Petitioner's filing of his petition timely.
The RR explains that Petitioner's petition was untimely filed because 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." (RR 4.) The RR further explains that under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which sets forth a one-year statute of limitations for § 2254 petitions, Petitioner had until September 9, 2005, to timely file his federal habeas petition. In so concluding, the RR found that Petitioner's post-conviction proceedings were properly considered "concluded" on the date of the Washington Supreme Court's decision, rather than several weeks later when the mandate was issued. (RR 4 (citing White v. Klitzkie, 281 F.3d 920, 923 n. 4 (9th Cir. 2002).)
Petitioner argues that the correct inquiry in this case is not whether review had concluded, but whether it should have been considered "pending" until issuance of the mandate. However, this question makes the distinction between "concluded" and "pending" unnecessarily complicated. It is actually very simple. "Pending" is merely the opposite of "concluded." See Carey, 536 U.S. at 219-20 (discussing various ordinary definitions of "pending," including "not yet decided" and "until the completion of"). Thus, Carey's holding that petitioners are entitled to "`one full round' of collateral review without the interference of the federal statute of limitations" (Obj. 2) has no impact on the Ninth Circuit holding in Wixom v. Washington that a mandate is not a decision terminating review. It also has no impact on the Ninth Circuit holding in White that it is the appellate court's decision, not the issuance of the mandate, that marks the conclusion of review for purposes of statutory tolling under § 2244(d)(2). White, 281 F.2d at 923 n. 4.
Petitioner's attempt to distinguish White on the basis that it addresses the appellate procedures from the Territory of Guam fails. First, the Court notes that Petitioner's own authority, Carey and Evans, discusses factual scenarios arising from the peculiarities of California's original writ system. Second, as the RR observed, not only did White confirm Wixom's recognition that a mandate is not a decisional event, the relevant portion of White was not affected in any way by "any unique aspect of Guam's territorial procedures." (RR 5.)
Finally, Petitioner's Evans-based argument that a federal court may only independently determine whether a state court proceeding was "pending" in the absence of clear direction from the state court or a clear indication that a particular request for appellate review was timely or untimely (Obj. 3) is applicable only to California cases affected by California's unique original writ system and its use of "reasonable" rather than specific time limits. See Evans, 126 S. Ct. at 853.
For these reasons, the Court finds that the RR correctly concluded that Petitioner's § 2254 petition was untimely filed. The Court therefore ADOPTS the RR and DISMISSES Petitioner's federal habeas petition with prejudice, pursuant to 28 U.S.C. § 2244(d). Petitioner's motion for oral argument is DENIED.
SO ORDERED.