Saffold v. Newland, 99-15541

Citation250 F.3d 1262
Decision Date23 May 2001
Docket NumberNo. 99-15541,99-15541
Parties(9th Cir. 2001) TONY EUGENE SAFFOLD, Petitioner-Appellant, v. ANTHONY NEWLAND, Respondent-Appellee
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Mary Katherine McComb, Davis, California, for the petitioner-appellant.

Stan Cross, Deputy Attorney General, Sacramento, California, for the respondent-appellee.

Appeal from the United States District Court for the Eastern District of California;

David F. Levi, District Judge, Presiding D.C. No. CV-98-01040-DFL

Before: Betty B. Fletcher, William C. Canby, Jr., and Diarmuid F. O'Scannlain, Circuit Judges.

Opinion by Judge Danby; Dissent by Judge O'Scannlain.

Order

The majority opinion of this court and Judge O'Scannlain's dissent thereform, filed on July 17, 2000, slip op. at 8271 , reported at 24 F.3d 1087, are hereby amended as follows:

Majority opinion: Insert a new footnote 6, to be indicated at the end of the first sentence of the last paragraph on slip op. at 8278 (ending " 'Petition for writ of habeas corpus is DENIED on the merits and for lack of diligence.' "). The new footnote shall state:

The dissent quotes selectively from these words, infra. The fact remains however, that the California Supreme Court denied Saffold's petition both "on the merits and for lack of diligence."

Majority opinion: Insert new footnote 8, to be indicated at the end of the first sentence of the first full paragraph on slip op. at 8280 (Ending ". . . June 17, 1997"). The new footnote shall state:

The dissenting opinion in its footnote 1, refers to the rule adopted in Bennett V. Artuz, 199 F.3d 116 (2d Cir. 1999) aff'd, 531 U.S. 4, 121 S. Ct. 361, 148 L. Ed.2d 213 (2000), that " a state-court petition is 'pending' from the time it is first filed until finally disposed of and further appellate review is unavailable under the particular state's procedures." Id. at 120. We have no quarrel with this formulation, but disagree with the dissent that review was "unavailable" to Saffold at the time he filed his original habeas petition in the Calironia Supreme Court. The California Supreme Court, in denying that petition, ruled on its merits. In light of that fact, it is impossible for us to conclude that review was "unavailable" in that court. Moreover, the alternative ruling denying the petition for lack of diligence was " 'a condition for obtaining relief,' " necessarily ruled upon by the court, not a " ' condition to filing.' " Dictado v. Ducharme, 244 F.3d 724, 727 (9th Cir. 2001) Such procedural bars to the obtaining of relief do not prevent from being "properly filed," see id, and review from therefore being "abailable" even if unseuccessful.

The remaining footnotes in the majority opinion shall be renumbered accordingly.

Dissenting opinion: The dissenting opinion is amended by deleting the previous dissenting opinion and substituting in full the attached amended dissenting opinion.

With these amendments, Judges B. Fletcher and Canby have voted to deny the petition for panel rehearing, and have recommended denial of en banc rehearing. Judge O'Scannlain has voted to grant panel rehearing and en banc rehearing.

The petition for rehearing en banc and the above amendments have been circulated to the full court. An active judge requested a vote on the petition for rehearing en banc. A vote was taken and the petition failed to receive the affirmative vote of a majority of the active judges of the court. The petition for panel rehearing and for en banc rehearing is DENIED.

OPINION

CANBY, Circuit Judge:

Tony Eugene Saffold is a state prisoner appealing the district court's dismissal of his federal petition for habeas corpus. The district court concluded that Saffold had failed to satisfy the one-year statute of limitations for a state prisoner filing a federal habeas petition. See 28 U.S.C. S 2244(d)(1). Whether or not Saffold's petition is barred by the statute of limitations turns in part on a calculation of the period during which the federal statute was tolled while Saffold's petitions for state habeas relief were "pending" in the California courts. See 28 U.S.C. S 2244(d)(2). After the district court issued its order, we decided in another case how the tolling period for exhaustion of state remedies is to be determined. See Nino v. Galaza, 183 F.3d 1003 (9th Cir. 1999), cert. denied, U.S. 120, S.Ct. 1846, 146 L.Ed.2d 1846, 146 L.Ed.2d 787 (U.S. May 1, 2000). We now apply Nino and conclude that the district court erred by failing to toll the federal statute of limitations for the entire period during which Saffold pursued state habeas relief.

We also conclude that the "mailbox" rule for pro se prisoners applies to Saffold's petitions to the California court and the federal court for purposes of calculating tolling time under AEDPA. Whether and when Saffold delivered his petitions to prison authorities is unresolved. We therefore reverse the judgment of the district court and remand for further proceedings.

THE STATUTE OF LIMITATIONS

In 1990, Saffold was found guilty in California state court of murder, assault with a firearm, and two counts of robbery. He appealed, and his conviction became final on direct review on April 20, 1992.

Effective April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 ("AEDPA"). AEDPA imposed, for the first time, a one-year statute of limitations for state prisoners filing federal petitions for habeas corpus. For prisoners like Saffold, whose convictions had become final before passage of AEDPA, the one-year limitations period began running on AEDPA's effective date, April 24, 1996, and expired on April 23, 1997, unless it was tolled. See Miles v. Prunty, 187 F.3d 1104, 1105 (9th Cir. 1999).1

AEDPA's tolling provision states that "[t]he time during which a properly filed application for State post-conviction or other collateral review . . . is pending shall not be counted toward any period of limitation." 28 U.S.C. S 2244(d)(2).

Saffold contends that he got in under the wire by filing his state habeas application in the Superior Court of San Joaquin County by delivering the petition to prison authorities on April 17, 1997--just six days before the AEDPA one-year limitation would have expired. The district court accepted that contention for purposes of decision and, in order to review the district court's ruling, we accept it as well.

The issue for our decision is how much of the time after April 17, 1997, was tolled for purposes of AEDPA. 2 We conclude that Saffold had a state collateral proceeding "pending" within the meaning of AEDPA's tolling provision, 28 U.S.C. S 2244(d)(2), during the entire period from the time he filed his state petition in the trial court until the California Supreme Court denied his habeas petition.

The Superior Court denied Saffold's state habeas petition on June 9, 1997. Five days thereafter, on June 14, 1997, Saffold delivered to prison authorities his habeas petition to the California Court of Appeal. The Court of Appeal denied that petition on June 26, 1997. Saffold then waited four and onehalf months before filing an original habeas petition in the California Supreme Court, on November 13, 1997. 3 The California Supreme Court denied the petition "on the merits and for lack of diligence" on May 27, 1998.

The district court ruled that the AEDPA limitation was tolled only while each state court had the petition under consideration. Thus, it excluded the gap of four days from the Superior Court's denial of Saffold's petition to his filing of a petition with the state Court of Appeal by delivery to prison authorities. It also excluded the four and one-half months between the denial by the Court of Appeal and Saffold's filing of his petition with the California Supreme Court. 4 By this calculation, Saffold had run over his one-year limitation by nearly five months when he filed his federal petition.

We know now that the district court erred in ruling that time ran for AEDPA purposes during all times when a petition was not actually under consideration in a state court. After the district court issued its order, we decided Nino v. Galaza, 183 F.3d 1003 (9th Cir. 1999), cert. denied, U.S. 120 S.Ct. 1846, 146 L.Ed.2d 787 (2000). There we held that:

the AEDPA statute of limitations is tolled for "all of the time during which a state prisoner is attempting, through proper use of state court procedures, to exhaust state court remedies with regard to a particu lar post-conviction application."

Applying these principles to California's post conviction procedure, we hold that the statute of lim itations is tolled from the time the first state habeas petition is filed until the California Supreme Court rejects the petitioner's final collateral challenge.

Id. at 1006 (footnote and citation omitted) (emphasis added). It seems clear, therefore, that time should have continued to be tolled during the brief gap of a few days between the Superior Court's denial of Saffold's habeas petition and his filing of a petition in the Court of Appeal. It is less clear under Nino, however, whether limitations should be tolled during the four and one-half months after the Court of Appeal denied relief and before Saffold petitioned the California Supreme Court. Section 2244(d)(2) tolls the AEDPA limitation while a "properly filed" application for habeas is pending in state court. 28 U.S.C. S 2244(d)(2). Nino stated, as we have emphasized above, that time was tolled while a petitioner was attempting to exhaust state collateral remedies" `through proper use of state court procedures.' " Nino, 183 F.3d at 1006. We then added a footnote to Nino, stating:

Because it is not at issue in this case, we express no opinion as to whether tolling pursuant to AEDPA should be applied if the California state courts have dismissed a state habeas...

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