Washington Supreme Court Announces PRP Petition ‘Final’ Upon Issuance of Certificate of Finality to Allow Tolling of Federal Habeas Clock
by Dale Chappell
Answering a question certified to the Court by the U.S. Court of Appeals for the Ninth Circuit, the Supreme Court of Washington held on February 27, 2020, that a personal restraint petition (“PRP”) is not “final” until a certificate of finality (“COF”) is issued. The question was posed by the Ninth Circuit because Washington law was unclear on when the one-year clock restarts when filing a federal habeas corpus petition after the denial of a PRP petition.
The case came before the Court in a not so unusual fashion. In 2011, Phonsavanh Phongmanivan was convicted in state court and sentenced to just over 25 years in prison. After his direct appeal was denied, he filed a timely PRP petition, which also was denied. Phongmanivan then took his PRP appeal to the Supreme Court, and on December 3, 2015, the state’s highest court denied discretionary review. On February 10, 2016, the Court denied reconsideration, and thereafter, the court of appeals issued a COF.
Just eight days after the COF, Phongmanivan filed a pro se habeas corpus petition in the federal district court, on April 9. However, the court dismissed his petition as untimely, holding that his one-year window for filing the federal petition had restarted after the denial of reconsideration by the Supreme Court on February 10, not when the COF was issued. Adding up the days that Phongmanivan waited to file his PRP petition and the days after it was denied until he filed his federal petition, the Court determined that he was 23 days too late, dismissing his petition.
Phongmanivan appealed to the Ninth Circuit, arguing that his PRP petition wasn’t yet “final” to restart the clock until the COF issued. Finding that the question was an open one under Washington law, the Ninth Circuit asked the Washington Supreme Court to settle the issue.
Under 28 U.S.C. § 2244(d)(1), the Antiterrorism and Death Penalty Act (“AEDPA”) establishes a one-year time limit to file a federal habeas petition after the denial of a state postconviction action. The AEDPA clock starts on “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” § 2244(d)(1)(A). However, any time during which a state postconviction action is pending is excluded from those 365 days (366 days during a leap year).
This case came down to how the appellate rules apply to PRP cases in determining finality of the appeal. Washington Rules of Appellate Procedure (“RAP”) determines when a case becomes final after an appeal. Under RAP 12.5(a), there is a “mandate” that issues as well as a “certificate of finality.” They are not the same thing. The main difference is that the mandate terminates appellate review, and a COF notifies the parties of the completion of appellate review after the Supreme Court denies discretionary review.
Titled “Finality of a Decision,” RAP 12.7(a) says that the court of appeals loses authority to change or modify its decision upon issuance of a mandate or COF, “as provided in rule 12.5(e) and rule 16.15(e).” Washington law also provides that a conviction does not become final for a PRP petition until a mandate is issued. RCW 10.73.090(3)(b).
Considering these rules on mandates and COFs “as a whole,” the Supreme Court concluded that “a PRP proceeding becomes final upon issuance of a certificate of finality,” expressly citing to RAP 12.7(a). The Court reasoned that since COFs have a similar purpose — a signal of finality — they alone say when a proceeding on appellate review is final, not the order of the court denying the appeal.
The Court thus announced: “In Washington, a certificate of finality is more than a redundant instrument of general notice. The date of issuance of the certificate of finality by the clerk of the appropriate appellate court establishes the date of finality for a PRP or other state collateral proceeding.”
The Court also recognized that Washington courts of appeals routinely delay issuance of COFs, instructing that “whatever practices the courts of appeals engaged in in the past, today’s holding should serve to provide greater clarity as to both the legal meaning of the issuance of certificates of finality and the importance of timely compliance with the RAPs.” In other words, the delay in issuing a COF should not count against a petitioner.
Accordingly, the Court held that “April 1, 2016, the date of issuance of Phongmanivan’s certificate of finality, marks the date his PRP became final.” See: Phongmanivan v. Haynes, 2020 Wash. LEXIS 124 (2020).
As a digital subscriber to Criminal Legal News, you can access full text and downloads for this and other premium content.
Already a subscriber? Login
Related legal case
Phongmanivan v. Haynes
| Year | 2020 |
|---|---|
| Cite | 2020 Wash. LEXIS 124 (2020) |
| Level | Court of Appeals |
