Malcom v. Payne

Decision Date22 February 2002
Docket NumberNo. 00-35770.,00-35770.
PartiesMarilynn R. MALCOM, Petitioner-Appellant, v. Alice PAYNE, Respondent-Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

Michael R. Snedeker, Snedeker, Smith & Short, Portland, OR, for the appellant.

Paul Douglas Weisser, Attorney General's Office, Olympia, WA, for the appellee.

Appeal from the United States District Court for the Western District of Washington, Robert J. Bryan, District Judge, Presiding. D.C. No. CV-99-05348-RJB.

Before LAY,* TROTT, and BERZON, Circuit Judges.

TROTT, Circuit Judge.

Was Washington state prisoner Marilynn Malcom's federal petition for habeas corpus timely filed? The answer to that question depends primarily on whether Malcom's state clemency petition tolled the one-year limitations period of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See 28 U.S.C. § 2244(d) (2000).

The district court deemed untimely Malcom's federal habeas petition after concluding that Malcom's state clemency petition did not toll AEDPA's limitations clock. However, concluding that reasonable jurists could differ on the question, the district court issued a certificate of appealability. We therefore have jurisdiction over this appeal pursuant to 28 U.S.C. §§ 1291 and 2253 (2000).

We hold that a prisoner's state petition for clemency does not toll AEDPA's one-year statute of limitations. We conclude also that Malcom is not entitled to equitable tolling. Accordingly, we affirm the district court's determination that Malcom's federal habeas petition was untimely.

I Background
A. State Proceedings
1. Trial and Direct Appeal

A Washington jury convicted Marilynn Malcom in 1987 of several counts of statutory rape and indecent liberties. She unsuccessfully appealed her conviction to the Washington Court of Appeals and to the Washington Supreme Court. Malcom's conviction became final in 1991.

2. Malcom's First Personal Restraint Petition

In 1991, while directly appealing her case, Malcom filed a personal restraint petition — the equivalent of a state petition for habeas corpus — with the Washington Court of Appeals. See WASH. REV. CODE § 7.36.010 (2000). The state court of appeals dismissed Malcom's petition, and she did not seek discretionary review from the state supreme court.

3. Malcom's Petition for Clemency

Five years later, on September 3, 1996, Malcom submitted a request for clemency to the Governor of Washington State. See id. § 9.94A.260 (2000). While her pro se clemency request was pending, a lawyer named Michael Snedeker agreed to represent Malcom, and on August 15, 1997, he filed another petition for clemency on her behalf. The Governor's Clemency and Pardons Board entertained oral argument on Malcom's petition, and on September 10, 1997, the Governor's general counsel denied Malcom's request for clemency.

4. Malcom's Second Personal Restraint Petition

On February 10, 1998, Malcom, through counsel, filed a second personal restraint petition. The Washington Court of Appeals initially observed that Malcom's second personal restraint petition was not filed within one year after her conviction became final, as required by statute. See id. § 10.73.090 (2000). Malcom argued, however, that because her petition was based on "newly discovered evidence," she fell within a statutory exception to the limitations period. See id. § 10.73.100 (2000).

The court of appeals disagreed and dismissed Malcom's second personal restraint petition on two procedural grounds: (1) Malcom's petition did not fall within the "newly discovered evidence" exception, and therefore was untimely; and (2) Malcom's petition raised the same issues as her first personal restraint petition, and thus was successive. See id. § 10.73.140 (2000).

Malcom sought discretionary review from the Washington Supreme Court, and that court rejected her claims on May 5, 1999.

B. Malcom's Federal Petition for Habeas Corpus

AEDPA imposes a one-year statute of limitations on habeas corpus petitions filed by state prisoners in federal court. 28 U.S.C. § 2244(d)(1). For state prisoners, like Malcom, whose convictions became final prior to AEDPA's enactment, AEDPA's one-year statute of limitations began to run on April 25, 1996, the day after AEDPA was enacted. Patterson v. Stewart, 251 F.3d 1243 (9th Cir.2001). Counting forward one year, Malcom had until April 24, 1997, in which to file her federal habeas petition, unless the statute of limitations was statutorily or equitably tolled. See id. However, Malcom did not file her federal habeas petition until July 1, 1999, over two years late. Recognizing this problem, she argued that the one-year limitations period should have been statutorily or equitably tolled.

The magistrate judge assigned to hear Malcom's petition acknowledged that AEDPA's limitations period is statutorily tolled during the time which "a properly filed application for State post-conviction or other collateral review ... is pending...." 28 U.S.C. § 2244(d)(2). After April 25, 1996, the day AEDPA's limitations clock began ticking, Malcom made two attempts to undo her conviction, consisting of (1) her second personal restraint petition, and (2) her clemency petition. The magistrate judge determined that Malcom's federal habeas petition would have been timely filed only if both her second personal restraint petition and her clemency petition tolled AEDPA's one-year limitations clock.1 According to the magistrate judge, neither Malcom's second personal restraint petition nor her clemency petition tolled § 2244(d)(2)'s limitations clock.

As for equitable tolling, the magistrate judge found that Malcom presented no extraordinary circumstances beyond her control which prevented her from filing a timely federal habeas petition.

The district court adopted wholesale the magistrate judge's report and recommendation urging the court to dismiss the petition as untimely.

II Discussion
A. Standard of Review

We review de novo the district court's dismissal of Malcom's federal habeas petition on statute of limitations grounds. Miles v. Prunty, 187 F.3d 1104, 1105 (9th Cir.1999). Likewise, we review de novo the district court's decision on the issue of equitable tolling. Id.

B. Statutory Tolling

Section 2244(d)(2) is the tolling provision at issue in this case. See 28 U.S.C. § 2244(d)(2). It provides: "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." Id.

Malcom's federal habeas petition was timely only if (1) her second personal restraint petition and (2) her clemency petition both tolled the AEDPA limitations clock. As discussed below, we conclude — contrary in part to the district court's decision — that (1) Malcom's second personal restraint petition did toll AEDPA's limitations clock, but (2) Malcom's state clemency petition did not.

1. Malcom's Second Personal Restraint Petition Was "Properly Filed" and Thus Tolled the Limitations Clock

The magistrate judge determined that because Malcom's second personal restraint petition was dismissed as untimely and successive, it was not a "properly filed application" for state review, and therefore did not toll the statute of limitations. See 28 U.S.C. § 2244(d)(2) ((tolling limitations period during the time "which a properly filed application for State post-conviction or other collateral review ... is pending") (emphasis added)). Coming to this conclusion, the magistrate judge relied on Dictado v. Ducharme, 189 F.3d 889 (9th Cir.1999) ("Dictado I"). Since the magistrate judge's decision, however, we have overruled Dictado I and filed a new opinion. See Dictado v. Ducharme, 244 F.3d 724, 724 (9th Cir.2001) ("Dictado II").

In that case, Dictado filed a personal restraint petition in Washington state court, which the state court dismissed as untimely and successive. Id. at 725. We held that Dictado's personal restraint petition was "properly filed" even though the Washington Supreme Court dismissed it as untimely and successive. First, because "Washington's statute governing successive state personal restraint petitions is a `condition to obtaining relief' and not a `condition to filing,'" Dictado's petition was "properly filed" even though it had been dismissed as successive. Id. at 727. Second, we observed that the Washington rules on timely filings are not absolute; they contain several exceptions. Id. at 727-28; see WASH. REV. CODE § 10.73.100 (noting exceptions). Answering a question expressly left open by the Supreme Court in Artuz v. Bennett, 531 U.S. 4, 121 S.Ct. 361, 363 n. 2, 148 L.Ed.2d 213 (2000), "[w]e h[e]ld that if a state's rule governing the timely commencement of state postconviction relief petitions contains exceptions that require a state court to examine the merits of a petition before it is dismissed, the petition, even if untimely, should be regarded as `properly filed.'" Dictado II, 244 F.3d at 728; accord Smith v. Ward, 209 F.3d 383, 384-85 (5th Cir.2000); but see Webster v. Moore, 199 F.3d 1256, 1258-59 (11th Cir.2000) (finding state habeas petition not "properly filed" because it did not meet state filing deadlines; no discussion of exceptions to deadline). Because Washington's timeliness rules contain exceptions that require the state court to examine the merits of the petition, we ruled that Dictado's petition was "properly filed" even though it was dismissed as untimely. Dictado II, 244 F.3d at 726-28.

Malcom's case is indistinguishable from Dictado II. Both petitioners filed personal restraint petitions in Washington state court and were subject to Washington's rules regarding successive petitions and timely filings. Both petitions were ultimately dismissed as untimely and successive, but both required the court to determine...

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