                                                                           FILED
                           NOT FOR PUBLICATION                              DEC 19 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



DUONG DUC NGUYEN,                                No. 10-35319

              Petitioner - Appellant,            DC No. 2:09 cv 01435 RSL

  v.

STEPHEN D. SINCLAIR,                             MEMORANDUM *

              Respondent - Appellee.



                    Appeal from the United States District Court
                      for the Western District of Washington
                     Robert S. Lasnik, District Judge, Presiding

                     Argued and Submitted December 6, 2011
                              Seattle, Washington

Before:       TASHIMA, McKEOWN, and TALLMAN, Circuit Judges.

       Petitioner-Appellant Duong Duc Nguyen appeals the district court’s

dismissal of his 28 U.S.C. § 2254 habeas corpus petition as untimely. We have

jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253, and we affirm.




          *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
         The district court dismissed Nguyen’s petition as barred by the one-year

statute of limitations established by the Antiterrorism and Effective Death Penalty

Act of 1996 (“AEDPA”), 28 U.S.C. § 2244(d). That limitations period begins to

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.”

Id. § 2244(d)(1)(A). We review the dismissal of a federal habeas petition on

timeliness grounds de novo. Malcom v. Payne, 281 F.3d 951, 955-56 (9th Cir.

2002).

         Nguyen argues that his petition was timely because he filed it within one

year from the expiration of his time to appeal the state superior court’s order

amending judgment. The district court correctly determined, however, that the

amended judgment was not appealable. Under Washington state law, a trial court’s

order amending judgment is not appealable where, as here, “an appellate court

issues a mandate reversing one or more counts and affirming the remaining

count[s], and where the trial court exercises no discretion on remand as to the

remaining final counts.” State v. Kilgore, 216 P.3d 393, 397 (Wash. 2009). The

district court correctly concluded that the superior court did not “exercise[] its

independent judgment, review[], and rule[] again” when it entered the order

pursuant to the mandate of the Washington Court of Appeals. Id. (internal


                                            2
quotation marks and citation omitted). Because Nguyen did not have a right to

appeal from the amended judgment, the AEDPA statute of limitations commenced

to run upon either entry of the mandate of the Washington Court of Appeals or

entry of the amended judgment. Either way, his petition was untimely and

properly dismissed.

      AFFIRMED.




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