Dictado

Fortunado Dictado appeals the dismissal of his 28 U.S.C. § 2254 habeas corpus petition. The district court concluded that Dictado filed his petition after the expiration of the one-year statute of limitations established in 28 U.S.C. § 2244 (d)(1), the Antiterrorism and Effective Death Penalty Act (“AEDPA”), and dismissed the petition as untimely. Dictado argues that the limitations period was tolled while his 1997 personal restraint petition was pending in the Washington state courts. We have jurisdiction, 28 U.S.C. §§ 1291 , 2253, and we affirm.

I

In 1982, a Washington jury convicted Dictado of two counts of first-degree murder. The state court sentenced him to life in prison without the possibility of parole. The Washington Supreme Court affirmed the conviction and sentence on direct review. See State v. Dictado, 102 Wash.2d 277 , 687 P.2d 172 (1984). The Washington Supreme Court issued its mandate terminating review on August 22, 1984.

In June 1988, Dictado filed a personal restraint petition in the Washington Court of Appeals, alleging that he had been denied effective assistance of counsel. The Court of Appeals dismissed Dictado’s petition on December 21, 1988. Dictado…

dissenting:

Dictado’s petition was “properly filed” for purposes of tolling the AEDPA limitations period because Dictado satisfied Washington’s procedural requirements for filing a petition based on newly discovered evidence. Although Washington courts ultimately rejected the petition as “repetitive and untimely,” this conclusion was based on an examination of the merits, specifically whether the proffered evidence qualified as newly discovered evidence. The court’s decision on the merits is not a valid basis for refusing to toll the period in which Dictado could file a federal petition.

The great majority of federal decisions interpreting the phrase “properly filed” in section 2244(d)(2) hold that it refers to compliance with the state’s basic procedural requirements for filing a petition, without regard to the merits of the petition. 1 The Third Circuit held in Lovasz v. Vaughn, 134 F.3d 146 (3d Cir.1998), that a second or successive state petition summarily dismissed by Pennsylvania courts was “properly filed” because the state permitted the filing of second or subsequent petitions and the petitioner apparently satisfied the state’s procedural requirements for filing such a…