Phonsavanh Phongmanivan v. Ron Haynes

Opinion

FILED NOT FOR PUBLICATION APR 9 2020 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

PHONSAVANH PHONGMANIVAN, No. 16-36018

Petitioner-Appellant, D.C. No. 2:16-cv-00556-RAJ

v. MEMORANDUM** RON HAYNES, SCCC Superintendent,*

Respondent-Appellee.

Appeal from the United States District Court for the Western District of Washington Richard A. Jones, District Judge, Presiding

Submitted February 6, 2019*** Submission Withdrawn March 19, 2019 Resubmitted April 7, 2020 Seattle, Washington

* Ron Haynes has replaced Margaret Gilbert as Superintendent of Stafford Creek Corrections Center. ** This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. *** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Before: IKUTA and CHRISTEN, Circuit Judges, and CHOE-GROVES,**** Judge.

Phonsavanh Phongmanivan appeals the dismissal of his petition for habeas

corpus. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253(a), and we

reverse and remand.

The district court erred in dismissing Phongmanivan’s habeas petition as

barred by the one-year limitations period in the Antiterrorism and Effective Death

Penalty Act of 1996, 28 U.S.C. § 2244(d)(1). The limitations period was tolled

when Phongmanivan filed a personal restraint petition with the Washington Court

of Appeals on February 4, 2015, see § 2244(d)(2), and the tolling ended when the

Washington Court of Appeals issued a certificate of finality on April 1, 2016, see

Phongmanivan v. Haynes, No. 96980-9, 2020 WL 946132, at *4 (Wash. Feb. 27,

2020). Thus, Phongmanivan timely filed his habeas petition on April 9, 2016. See

Phongmanivan v. Haynes, 918 F.3d 1021, 1023–24 (9th Cir. 2019).

REVERSED AND REMANDED.

**** The Honorable Jennifer Choe-Groves, Judge for the United States Court of International Trade, sitting by designation. 2