FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 PHONSAVANH                                   No. 16-36018
 PHONGMANIVAN,
        Petitioner-Appellant,                   D.C. No.
                                           2:16-cv-00556-RAJ
                 v.
                                         ORDER CERTIFYING
 RON HAYNES, SCCC                         QUESTION TO THE
 Superintendent,*                          WASHINGTON
         Respondent-Appellee.             SUPREME COURT


                      Filed March 19, 2019*

   Before: Sandra S. Ikuta and Morgan Christen, Circuit
       Judges, and Jennifer Choe-Groves,** Judge.

                               Order




    *
         Ron Haynes has replaced Margaret Gilbert as Superintendent of
Stafford Creek Corrections Center.
     **
         The Honorable Jennifer Choe-Groves, Judge for the United
States Court of International Trade, sitting by designation.
2                   PHONGMANIVAN V. HAYNES

                            SUMMARY***


                           Habeas Corpus

    The panel certified to the Washington Supreme Court the
following question:

         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 of the
         Washington Court of Appeals issues a
         certificate of finality as required by Rule
         16.15(e)(1)(c) of the Rules of Appellate
         Procedure?


                              COUNSEL

Ann K. Wagner, Assistant Federal Public Defender, Federal
Public Defender Office, Seattle, Washington, for Petitioner-
Appellant.

Alex Kostin, Assistant Attorney General, Corrections
Division; Robert W. Ferguson, Attorney General; Office of
the Washington Attorney General, Olympia Washington; for
Respondent-Appellee.


    ***
        This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                 PHONGMANIVAN V. HAYNES                        3

                           ORDER

    We respectfully ask the Washington Supreme Court to
answer the certified question presented below, pursuant to
Revised Code of Washington (“RCW”) § 2.60.020, because
we have concluded that a dispositive question of state law
applies to the claim, and therefore “it is necessary to ascertain
the local law of [Washington] state in order to dispose of
[this] proceeding and the local law has not been clearly
determined.”

     This case involves a statutory tolling claim under
28 U.S.C. § 2244(d)(2). The Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”) sets a one-year statute
of limitations for filing a federal petition for a writ of habeas
corpus. 28 U.S.C. § 2244(d); see also Williams v. Filson, 

, 557 (9th Cir. 2018). The limitations period shall
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.” 28 U.S.C.
§ 2244(d)(1)(A). The statute of limitations is tolled when “a
properly filed application for State post-conviction or other
collateral review with respect to the pertinent judgment or
claim is pending.” 

The definition of
“pending” for the purposes of statutory tolling is a question
of state law. See Carey v. Saffold, 

, 219–20
(2012); Hemmerle v. Schriro, 

, 1077 (9th Cir.
2007).

    The issue here is when Appellant’s personal restraint
petition (“PRP”) proceeding was no longer “pending” under
Washington state law for the purposes of calculating the
statute of limitations applicable to Appellant’s federal habeas
petition.
4               PHONGMANIVAN V. HAYNES

                              I

    We summarize the material facts. Phongmanivan was
found guilty of two counts of Washington Assault in the First
Degree, RCW § 9A.36.011, with two firearm enhancements,
after a jury trial in 2011. Phongmanivan was sentenced to
306 months.

    Phongmanivan appealed his conviction. The Washington
Court of Appeals affirmed the conviction and denied the
motion for reconsideration. Phongmanivan petitioned the
Washington Supreme Court for review, which the court
denied on December 11, 2013. Phongmanivan did not file a
petition for writ of certiorari with the Supreme Court of the
United States within the ninety-day window.

    Phongmanivan filed a PRP in the Washington Court of
Appeals on February 4, 2015. The Washington Court of
Appeals issued an order dismissing the PRP on its merits on
May 4, 2015. Phongmanivan then filed a petition for review
in the Washington Supreme Court, which the Commissioner
of the Washington Supreme Court treated as a motion for
discretionary review under Rule 16.14(c) of the Washington
Rules of Appellate Procedure (“RAP”) and denied.
Phongmanivan requested that the Washington Supreme Court
vacate or modify the Commissioner’s ruling.               The
Washington Supreme Court denied Phongmanivan’s motion
to modify in the PRP proceedings on February 10, 2016. The
Washington Court of Appeals filed a certificate of finality on
April 1, 2016.

   Phongmanivan filed his federal habeas petition with the
United States District Court for the Western District of
Washington on April 9, 2016. The district court, adopting the
                PHONGMANIVAN V. HAYNES                        5

magistrate judge’s report and recommendation, held that
Phongmanivan untimely filed his petition and dismissed his
case. The court found that the one-year statute of limitations
for Phongmanivan’s habeas petition began to run on March
12, 2014, after Phongmanivan’s ninety-day window to file a
petition for writ of certiorari with the Supreme Court of the
United States. The statute of limitations was tolled 329 days
later, on February 4, 2015, when Phongmanivan filed his
personal restraint petition.       Relevant here, the court
determined that the statute of limitations resumed when the
Washington Supreme Court denied the motion to modify the
Commissioner’s ruling on February 10, 2016. By the time
Phongmanivan signed his federal habeas petition on April 9,
2016, the statute of limitations had run for a total of 388 days
and therefore was untimely. The lower court denied
Phongmanivan’s claim for equitable tolling and dismissed his
habeas petition with prejudice.

                              II

    Phongmanivan argues on appeal that his federal habeas
petition was timely because his PRP was pending under
Washington law within the meaning of 28 U.S.C.
§ 2244(d)(2) (and so the one-year limitations period did not
resume running) until the Clerk of the Washington Court of
Appeals issued the certificate of finality on April 1, 2016.
There is some support for this argument in state law. RAP
12.7, entitled “Finality of Decision,” provides that the
Washington Court of Appeals retains “the power to change or
modify its decision” until one of three events occurs. RAP
12.7(a). One of these events includes the issuance of a
certificate of finality with respect to a PRP, pursuant to RAP
16.15(e). Phongmanivan supports his argument further by
citing State v. Kilgore, 

(Wash. 2009) (en banc),
6                PHONGMANIVAN V. HAYNES

in which the Washington Supreme Court looked to RAP 12.7
to help determine the finality of a conviction for purposes of
retroactive application of a new rule of law. In reaching its
conclusion, Kilgore distinguished a case involving finality of
a conviction in the PRP context in part because that case “did
not address finality for purposes of retroactivity.” See 

n.5.

    Respondent-Appellee contends, and the district court
concluded, that Phongmanivan’s PRP proceeding was no
longer pending for the purposes of 28 U.S.C. § 2244(d)(2)
when the Washington Supreme Court denied the motion to
modify the Commissioner’s ruling because the issuance of a
certificate of finality is a ministerial act. There is also
support for this conclusion in state law. RAP 16.15(e)
defines a certificate of finality as “the written notification of
the clerk of the appellate court to the trial court and the
parties that the proceedings in the appellate court have come
to an end.” The Washington Supreme Court has described
the certificate of finality as a document that “has traditionally
been issued by the clerk’s office when review of an
interlocutory decision is at an end,” which “functions
essentially as a ‘mandate’ for such decisions.” In re Personal
Restraint Petition of Lord, 

, 966 n.1 (Wash.
1994) (per curiam). Moreover, RAP 16.15(e)(1)(c) requires
the clerk of the Court of Appeals to file a certificate of
finality involving a PRP petition immediately “upon denial of
the motion for discretionary review” by the Washington
Supreme Court, rather than ordering the certificate of finality
to be issued thirty days after the Court of Appeals decision is
filed (unless a motion for reconsideration or discretionary
review is filed earlier) or thirty days after the Court of
Appeals denies a motion for reconsideration (unless a motion
for discretionary review is filed earlier), as in RAP
                PHONGMANIVAN V. HAYNES                        7

16.15(e)(1)(a) and (b). This suggests that after the
Washington Supreme Court denies the motion for
discretionary review, the court has nothing left to do but
“performance of a ministerial function.” 

.

                              III

    In light of the foregoing discussion, and because the
answer to this question is “necessary to ascertain the local law
of this state in order to dispose” of this appeal, RCW
§ 2.60.020, we respectfully certify to the Washington
Supreme Court the following question:

       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 of the
       Washington Court of Appeals issues a
       certificate of finality as required by Rule
       16.15(e)(1)(c) of the Rules of Appellate
       Procedure?

    We do not intend our framing of this question to restrict
the Washington State Supreme Court’s consideration of any
issues that it determines are relevant. If the Washington State
Supreme Court decides to consider the certified question, it
may in its discretion reformulate the question. Broad v.
Mannesmann Anlagenbau AG, 

, 1076 (9th Cir.
1999).
8                PHONGMANIVAN V. HAYNES

    If the Washington Supreme Court accepts review of the
certified question, we designate Appellant Phongmanivan as
the party to file the first brief pursuant to RAP 16.16(e)(1).

    The clerk of our court is hereby ordered to transmit
forthwith to the Washington Supreme Court, under official
seal of the United States Court of Appeals for the Ninth
Circuit, a copy of this order and all relevant briefs and
excerpts of record pursuant to RCW §§ 2.60.010, 2.60.030,
and RAP 16.16.

    Further proceedings in our court are stayed pending the
Washington Supreme Court’s decision on whether it will
accept review, and if so, receipt of the answer to the certified
question. This case is withdrawn from submission until
further order from this court. The Clerk is directed to
administratively close this docket, pending further order.

     The panel will resume control and jurisdiction on the
certified question upon receiving an answer to the certified
question or upon the Washington Supreme Court’s decision
to decline to answer the certified question. When the
Washington Supreme Court decides whether or not to accept
the certified question, the Parties shall file a joint report
informing this court of the decision. If the Washington
Supreme Court accepts the certified question, the Parties shall
file a joint status report every six months after the date of the
acceptance, or more frequently if circumstances warrant.

    It is so ORDERED.