Duong Nguyen v. Stephen Sinclair

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NOT FOR PUBLICATION DEC 19 2011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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