Marilynn R. Malcom v. Alice Payne

Was Washington state prisoner Mari-lynn Malcom’s federal petition for habeas corpus timely filed? The answer to that question depends primarily on whether Malcom’s state clemency petition tolled the one-year limitations period of the Antiter-rorism and Effective Death Penalty Act of 1996 (“AEDPA”). See 28 U.S.C. § 2244 (d) (2000).

The district court deemed untimely Mal-com’s federal habeas petition after concluding that Malcom’s state clemency petition did not toll AEDPA’s limitations clock. However, concluding that reasonable jurists could differ on the question, the district court issued a certificate of appeala-bility. We therefore have jurisdiction over this appeal pursuant to 28 U.S.C. §§ 1291 and 2253 (2000).

We hold that a prisoner’s state petition for clemency does not toll AEDPA’s one-year statute of limitations. We conclude also that Malcom is not entitled to equitable tolling. Accordingly, we affirm the district court’s determination that Mal-com’s federal habeas petition was untimely.

I

Background

A. State Proceedings

1. Trial and Direct Appeal

A Washington jury convicted Marilynn Malcom in 1987 of several counts of statutory rape and indecent liberties. She…