/rrcEv
/ SN CLERKS OFFtCE ' X
                                                                        This opinion was
                                                                      „ filed for record
      COURT,3TKIE OF                                               at Q(iMA-Qx\ r'do^ Bo3=^
              FEB 2 7 2820_
                                                                     Susan L. Carlson
      'CHIEF jusrscs
     /»1                                                            Suprenfie Court Clerk




            IN THE SUPREME COURT OF THE STATE OF WASHINGTON

 CERTIFICATION FROM THE UNITED
 STATES COURT OF APPEALS,NINTH
 CIRCUIT IN

 PHONSAVANH PHONGMANIVAN,

                       Petitioner-Appellant,                           No. 96980-9


         V.                                                              En Banc


 RON HAYNES,SCCC Superintendent"'',
                                                           Filed          FEB 1 7 ?(l^0
                       Respondent-Appellee.


         OWENS,J. — The Antiterrorism and Effective Death Penalty Act of 1996

 (AEDPA),Pub. L. No. 104-132, 110 Stat. 1214, establishes a one-year statute of
 limitations for state prisoners to file a petition for a federal writ of habeas corpus. 28

  U.S.C. § 2244(d)(1). This one-year period begins to run immediately upon the

  conclusion of a petitioner's direct appeal proceedings. 28 U.S.C. § 2244(d)(1)(A).

  However, AEDPA's statute of limitations is tolled for "[t]he time during which a

  properly filed application for State post-conviction or other collateral review with


  "t" Ron Haynes has replaced Margaret Gilbert as superintendent of Stafford Creek Corrections
  Center.
Phongmanivan v. Haynes, No. 96980-9



respect to the pertinentjudgment or claim is pending." 28 U.S.C. § 2244(d)(2). The
present case concerns whether Phonsavanh Phongmanivan timely filed his federal
habeas petition in compliance with AEDPA's one-year statute of limitations when he
did so 8 days after the Washington Court of Appeals issued his certificate of finality,
but 51 days after we denied his motion to modify our commissioner's ruling denying
discretionary review of his personal restraint petition(PRP). Because the answer to
this question requires interpreting an open issue of Washington state law,the Ninth
Circuit Court of Appeals certified the following question for our review:
       Is the denial of a personal restraint petition final when the Washington
       Supreme Court denies a motion to modify an order of its Commissioner
       denying discretionary review of the state appellate court's denial, or is
       the denial not final until the Clerk ofthe Washington Court of Appeals
       issues a certificate of finality as required by Rule 16.15(e)(1)(c) ofthe
       Rules of Appellate Procedure?

Phonsavanh Phongmanivan v. Haynes,918 F.3d 1021, 1024(9th Cir. 2019).

       Having reviewed the certified question without adopting Phongmanivan's

suggested reformulation, we now answer that Phongmanivan's PRP proceeding did
 not become final until the date his certificate of finality was issued on April 1, 2016.

                                         FACTS


       In 2011,Phongmanivan was convicted oftwo counts offirst degree assault with

 two firearm enhancements, and he was sentenced to 306 months' imprisonment.

 Phongmanivan appealed, and the Washington Court of Appeals, Division One,

 affirmed his conviction and denied his motion for reconsideration. Phongmanivan's
Phongmanivan v. Haynes, No. 96980-9


judgment and sentence became imal on March 11,2014,when his window to file a
petition for writ ofcertiorari to the Washington Supreme Court expired(90 days after his
motion for discretionary review was denied). 28 U.S.C.§ 2244(d)(2). This marked the
beginning ofPhongmanivan's one-year statute oflimitations to file his federal habeas
petition under AEDPA. Id.
       On February 4, 2015, 329 days later, Phongmanivan filed a PRP in the
 Washington Court of Appeals, thereby tolling AEDPA's statute of limitations for the
 pendency ofthat proceeding. The acting chiefjudge dismissed Phongmanivan s PRP
 as frivolous under RAP 16.11(b), and Phongmanivan filed a motion for discretionary
 review in this court. On December 3, 2015, our commissioner denied the motion.
 Phongmanivan then filed a timely motion to modify the commissioner's decision,
 which we denied on February 10, 2016.

        On April 1, 2016, 51 days later, the clerk ofthe Court of Appeals issued
 Phongmanivan's certificate offinality. Acting pro se, Phongmanivan then filed his
 federal habeas petition 8 days later on April 9, 2016. However,following the federal
 magistrate's recommendation, the federal district court denied Phongmanivan s
 petition as untimely, holding AEDPA's one-year tolling period had ceased on
 February 10, 2016, when we denied his motion to modify. By such reasoning, 388
 total untolled days had elapsed prior to Phongmanivan's filing, rendering his habeas
  petition untimely by 23 days.
Phongmanivan v. Haynes, No. 96980-9


      Phongmanivan appealed to the Ninth Circuit Court of Appeals arguing the
statute of limitations remained tolled until the clerk ofthe Washington Court of
Appeals, Division One,issued his certificate offinality, which would render his
petition timely by 28 days. The Ninth Circuit accepted review, determmed that
resolving this issue involved an open question of Washington state law, and certified
the question for our resolution. Phongmanivan,918 F.3d at 1024. This court
accepted review. RAP 16.16; RCW 2.60.020.
                                           ISSUE


       When does a PRP proceeding become final under Washington state law?
                                        ANALYSIS


       We review certified questions oflaw de novo. Allen v. Dameron, 187 Wn.2d
 692,701,389 P.3d 487(2017)(quoting Carlsen v. Glob. Client Sols., LLC, 171
 Wn.2d 486,493, 256 P.3d 321 (2011)). "We consider the legal issues not in the
 abstract but based on the certified record provided by the federal court. Carlsen, 171
 Wn.2d at 493; RCW 2.60.030(2). Here, answering the certified question requires us
 to interpret Washington's Rules of Appellate Procedure(RAPs)governing both
 certificates of finality and finality in general.

        When we interpret court rules, our review is also de novo. State v. Stump, 185
  Wn.2d 454,458,374 P.3d 89(2016). As with methods of statutory interpretation, we
  strive to determine and carry out the rule drafters intent. Id. at 460(citing Dep t of
Phongmanivan v. Haynes, No. 96980-9


Ecology V. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9,43 P.3d 4(2002)). "We
determine that intent by examining the rule's plain language not in isolation but m
context, considering related provisions, and in light ofthe statutory or rule-making
scheme as a whole." Id. (citing State v. Conover, 183 Wn.2d 706,711,355 P.3d
1093 (2015)). Finally, we avoid interpreting court rules in a manner that would render
substantive portions meaningless. See John A. Doe v. Wash. State Patrol, 185 Wn.2d
363, 381-82, 374 P.3d 63(2016).

       The State argues that Phongmanivan's PRP became final upon our denial of his
 motion to modify. In so arguing, the State relies heavily on RAP 16.15(e), which
 details various timelines for issuing certificates offinality based on the underlying
 proceeding's immediate posture. Specifically, the State contends,"These timeframes
 [in RAP 16.15(e)] recognize when a matter becomes final." Br. of Resp't on Certified
 Question at 13. But RAP 16.15(e) is not the only RAP that discusses certificates of
 finality, and it must be read in context with RAPs 12.5 and 12.7.
        RAP 12.5 governs mandates generally. RAP 12.5(a) defines a "mandate" as
 "the written notification by the clerk ofthe appellate court to the trial court and to the
 parties of an appellate court decision terminating review. Notably, nested under
 RAP 12.5's general discussion of mandates is subsection (e), which defines a
 "certificate offinality" as "the written notification by the clerk ofthe appellate court
Phongmanivan v. Haynes, No. 96980-9



to the trial court and to the parties of the completion ofthe proceeding in the appellate

court when review is not accepted."^

        While a mandate issues after a decision terminating review, a certificate of

finality issues after an appellate court decision not to accept review, as is tj^ical in

PRP proceedings. See In re Pers. Restraint ofLord, 123 Wn.2d 737,739, 870 P.2d

964(1994). Thus, as evidenced by both current practice and court rule, mandates and

certificates offinality are intended to perform a similar function in signaling finality.

See id. at 739 n.l (stating that "a 'certificate offinality' has traditionally been issued

by the clerk's office when review of an interlocutory decision is at an end. This

certificatefunctions essentially as a 'mandate'for such decisions"(emphasis added));

see also 3 KARL B. TEGLAND, WASHINGTON PRACTICE: RULES PRACTICE RAP 12.5

drafters' cmt. to 1998 amendment(8th ed. 2014).

        Washington law governing collateral proceedings already provides that for

purposes of our own state filing deadlines, a petitioner's judgment and sentence do not

become final until the date their mandate is issued. RCW 10.73.090(3)(b); see also

State V. Kilgore, 167 Wn.2d 28, 34, 216 P.3d 393(2009)(holding our September 12,

2002, decision became final the date the mandate issued on October 7, 2002);In re



' Compare with RAP 16.15(e), whieh states,"A eertifieate offinality is the written notifieation
ofthe elerk of the appellate eourt to the trial eourt and the parties that the proceedings in the
appellate eourt have come to an end." In addition to our rule that we read the RAPs as a whole,
these near-identical definitions bolster our conclusion that RAP 16.15(e)'s discussion of
certificates of finality cannot be read in isolation.
Phongmanivan v. Haynes, No. 96980-9



Pers. Restraint ofSkylstad, 160 Wn.2d 944, 948-49, 162 P.3d 413(2007)(stating,"if

a defendant appeals, then the judgment is final when the appellate court issues its

mandate 'disposing of direct appeal.' This terminates review. . ."(citation omitted)

(quoting RCW 10.73.090(3)(b))). At bottom, certificates of finality are intended to

function similarly to mandates, and mandates, not their preceding orders, are routinely

used to signal fmality. From here, we now turn to RAP 12.7(a), which further informs

the relationship between certificates offmality and the finality ofPRPs and other

collateral proceedings.

       Titled "Finality of Decision," RAP 12.7 provides in relevant part that "[t]he

Court of Appeals loses the power to change or modify its decision(1)upon issuance

of a mandate in accordance with rule 12.5 . . . or(3) upon issuance ofa certificate of

finality as provided in rule 12.5(e) and rule 16.15(e)." RAP 12.7(a)(emphasis added).

By its plain terms, RAP 12.7(a) ties the "Finality of[a] Decision" to the issuance of a

certificate of finality under RAP 12.5(e) and RAP 16.15(e). Thus,reading the rules as

a whole, it is evident that while RAP 16.15(e) establishes the time frames for when a

certificate offinality should issue, RAP 12.7 provides the meaning ofthe issuance of a

certificate offinality. Again, a PRP proceeding becomes final ''upon issuance of a

certificate of finality." RAP 12.7(a)(emphasis added).

       In its remaining arguments, the State asserts that any analysis ofthe question of

a PRP's finality should be examined in relation to the petitioner's then-prospective
Phongmanivan v. Haynes, No. 96980-9


federal habeas proceeding under AEDPA. Br. of Resp't on Certified Question at 12.
But it does not follow that we would answer a certified question arising under
Washington law by first filtering our analysis through the lens offederal law when our
own rules provide an independent, state law basis for resolution. Accordingly, we
reject the State's tacit invitation to do so here. Furthermore, if we accept the State's
contention that certificates offinality truly provide the parties and courts below
 nothing more than generalized notice of a then-already-fmal action, then RAP
 12.7(a)(3)'s reliance on the issuance ofthe certificate offinality to indicate when the
 Court of Appeals loses its power to modify would become essentially meaningless.
 Parties would thus be required to ignore RAP 12.7(a)(3) and to trace each
 proceeding's procedural posture to determine at what step the decision became fmal
 and thus no longer subject to change or modification. Accordingly, in rejecting this
 interpretation, we heed our long-standing admonition against interpreting court rules
 in a manner that would render portions meaningless. Doe, 185 Wn.2d at 381-82.
        Finally, the State argues that certificates offinality are often issued arbitrarily
  across the three divisions of the Court of Appeals. Unquestionably,the timely
  issuance of certificates offmality is a matter of important concern. But those
  instances of substantial delay noted in the record, while disquieting, have no direct
  bearing on our analysis or understanding ofthe RAPs or certificates offmality.
  Whatever practices the Courts of Appeals engaged in in the past, today s holding
Phongmanivan v. Haynes, No. 96980-9


should serve to provide greater clarity as to both the legal meaning ofthe issuance of
certificates offinality and the importance oftimely compliance with the RAPs.
                                   CONCLUSION


      In Washington, a certificate offinality is more than a redundant instrument of
general notice. The date ofissuance ofthe certificate offinality by the clerk ofthe
appropriate appellate court establishes the date offinality for a PRP or other state
collateral proceeding. Accordingly, we hold that April 1, 2016,the date of issuance of
Phongmanivan's certificate offinality, marks the date his PRP became final.
Phongmanivan v. Haynes, No. 96980-9




WE CONCUR:



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                                      10
Phonsavanh Phongmanivan v. Haynes




                                           No. 96980-9



       MADSEN,J.(concurring)—I agree with the majority that a personal restraint

petition becomes final upon the issuance of a certificate of finality pursuant to RAP

12.7(a). Majority at 8. I write separately to acknowledge the State's commonsense

argument concerning the finality of personal restraint petitions. As the State explains,

when this court denies a motion to modify the denial of discretionary review, our Rules

of Appellate Procedure(RAPs)allow for no further action. RAP 12.4(a) precludes

moving for reconsideration from orders denying a motion to modify a ruling by this

court's commissioner or clerk. RAP 16.15(e)(2) sets out a timeline for our clerk to issue

a certificate of finality upon the expiration for filing reconsideration or upon the entry of

an order denying a timely filed motion for reconsideration. According to the State, these

timelines, as well as the lack of further review under RAP 12.4(a), show that a matter

becomes final once either outcome occurs—finality is not extended because the issuance

of a certificate of finality is delayed.

       On the other hand, RAP 16.15's timelines cannot be read in isolation. State v.

Stump, 185 Wn.2d 454, 460, 374 P.3d 89(2016)("We determine [rule drafters'] intent by

examining the rule's plain language not in isolation but in context, considering related

provisions, and in light of the statutory or rule-making scheme as a whole."). The
No. 96980-9
Madsen, J., concurring


majority explains that a mandate and certificate of finality both exist in our RAPs to alert

parties of the completion of proceedings. Majority at 5-6 (citing RAP 12.5; In re Pers.

Restraint ofLord, 123 Wn.2d 737, 739 n.l, 870 P.2d 964(1994)(a certificate of finality

functions as a "mandate" when review of an interlocutory decision is denied)). In

addition, RAP 12.7(a) provides that the Court of Appeals cannot modify or change its

decision upon, among other things, issuance of a certificate of finality. RAP 12.7(a)(3).

The majority concludes, and I agree, that when read as a whole, our rules demonstrate

that a personal restraint petition becomes final when a certificate of finality is issued.

       Nevertheless, as the majority's analysis demonstrates, our rules are less than clear

and, as in this case, lead to unwarranted delays. Although I find the State's interpretation

of our rules persuasive, I am also mindful that the RAPs are court rules, which can and

should be changed when found wanting. To the extent that our appellate rules support

the State's view and promote a more uniform and predictable measure of finality, the

rules should be clarified not by judicial fiat but "through the normal rule-making

process." In re Pers. Restraint ofCarlstad, 150 Wn.2d 583, 592 n.4, 80 P.3d 587(2003).

       With these thoughts in mind, I respectfully concur.
No. 96980-9
Madsen, J., concurring




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