Chavis v. Lemarque

• Decision Date: 27 August 2004
• Docket Number: No. 01-17072.,01-17072.
• Citation: 382 F.3d 921
• Parties: Reginald CHAVIS, Petitioner-Appellant, v. Anthony LEMARQUE, Warden,<SMALL><SUP>*</SUP></SMALL> Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 921

382 F.3d 921

Reginald CHAVIS, Petitioner-Appellant, v. Anthony LEMARQUE, Warden,^* Respondent-Appellee.

No. 01-17072.

United States Court of Appeals, Ninth Circuit.

Submitted May 10, 2004.^**

Filed August 27, 2004.

Reginald Chavis, petitioner/appellant in propria persona.

Bill Lockyer, Attorney General of the State of California, and Catherine Chatman, Deputy Attorney General of the State of California, Sacramento, CA, for respondent/appellee Anthony LeMarque.

Appeal from the United States District Court for the Eastern District of California; William B. Shubb, Chief Judge, Presiding. D.C. No. CV-00-02496-WBS/GGH.

Before: B. FLETCHER, TROTT, and FISHER, Circuit Judges.

BETTY B. FLETCHER, Circuit Judge:

In 1991, Reginald Chavis was convicted of attempted first degree murder with the use of a weapon in Sacramento County Superior Court. He unsuccessfully challenged his conviction on direct appeal in California state courts and then filed two rounds of state habeas petitions. All of Chavis's state petitions were denied, and he filed a federal habeas petition on August 30, 2000. The issue before us is whether Chavis's federal petition was filed within the one-year statute of limitations provided by the Antiterrorism and Effective Death Penalty Act ("AEDPA").¹ The district court dismissed the petition as untimely. We reverse.

I. Background

The timeliness of Chavis's federal petition depends on whether he is entitled to statutory tolling for each of his state habeas petitions. 28 U.S.C. § 2244(d)(2) (allowing tolling for "properly filed" state habeas petitions while such petitions are "pending"). We therefore set forth in detail the procedural history of his case.

A. Conviction and Direct Appeal

On July 29, 1991, a jury convicted Chavis of attempted murder for the shooting of Katrina Haines. Chavis was sentenced to life with the possibility of parole. Chavis appealed the conviction to the California Court of Appeal and California Supreme Court. Both appeals were denied, the latter on October 28, 1992.

B. First Round of State Habeas Petitions

Chavis filed a habeas petition in Sacramento Superior Court on May 14, 1993, which was denied on the merits on July 30, 1993. Chavis filed a substantially similar petition in the California Court of Appeal on August 22, 1994, and that petition was denied on September 29, 1994.

AEDPA and the one-year statute of limitations for federal habeas petitions took effect on April 24, 1996.

On November 5, 1997, the California Supreme Court received Chavis's habeas petition. The Court denied the petition on April 29, 1998, without any comment or case citation. That decision became final on May 29, 1998.

C. Second Round of State Habeas Petitions

Chavis filed a second habeas petition in Superior Court on December 15, 1998. On January 5, 1999, the Superior Court ordered the petition "not filed" because Chavis, a pro se prisoner, had not filled out the habeas form in accordance with court procedures. On January 25, 1999, Chavis refiled his habeas petition with the Superior Court in the proper format, and it was denied on February 24, 1999. The Superior Court held that the successive petition was barred for "procedural reasons" because it was presented in a "piecemeal" manner. In re Chavis, No. 99F00573 at *1 (Sacramento Super. Ct., Feb. 24, 1999) (citing In re Clark, 5 Cal.4th 750, 774, 21 Cal.Rptr.2d 509, 855 P.2d 729 (1993)). It also held that the claims were not presented with "due diligence" because seven years passed between Chavis's conviction and the second petition. Id. (citing In re Robbins, 18 Cal.4th 770, 780, 77 Cal.Rptr.2d 153, 959 P.2d 311 (1998)).

Chavis filed a second petition in the California Supreme Court on December 17, 1999. That petition was summarily denied with citations to Clark, 5 Cal.4th 750, 21 Cal.Rptr.2d 509, 855 P.2d 729, Robbins, 18 Cal.4th 770, 77 Cal.Rptr.2d 153, 959 P.2d 311, and Ex parte Dixon, 41 Cal.2d 756, 759, 264 P.2d 513 (1953). The denial became final on April 28, 2000.

D. Federal Habeas Petition

Chavis filed his federal habeas petition with the district court on August 30, 2000. The magistrate judge made findings and recommendations that Chavis was not entitled to statutory tolling for state habeas petitions filed prior to the enactment of AEDPA, and that because all subsequent state petitions were filed more than one year after AEDPA's active date, Chavis's federal petition was barred. The district court adopted the findings and recommendations in full on September 18, 2001. Chavis appeals. The state concedes that the district court erred in its reasoning, but argues that Chavis is still not entitled to tolling for any of his state petitions.

II. Analysis

We review de novo the district court's dismissal of Chavis's 28 U.S.C. § 2254 petition on statute of limitations grounds. See Jenkins v. Johnson, 330 F.3d 1146, 1149 (9th Cir.2003). We first hold that Chavis is entitled to tolling while his second round of state petitions was pending, even though the petitions were denied on procedural grounds, because the state court's ultimate decision on a particular petition does not affect whether that petition is "pending" while the court considers it. Second, we hold that Chavis is entitled to tolling for the three-year interval between his first round petitions to the California Court of Appeal and California Supreme Court—an interval during which AEDPA took effect—because the California Supreme Court did not dismiss the petition as untimely but rather decided it on the merits. Finally, we set forth the proper calculation of the periods for which Chavis is entitled to tolling, and conclude that Chavis's federal habeas petition was timely filed.

A. Definition of Pending

28 U.S.C. § 2244(d)(2) allows tolling of the AEDPA statute of limitations while a federal habeas petitioner has "properly filed" state habeas petitions that are "pending."²

The state contends that under Carey v. Saffold, 536 U.S. 214, 219-21, 122 S.Ct. 2134, 153 L.Ed.2d 260 (2002), Chavis's second round petitions were never pending in the state courts, even while the courts had the petitions under submission, because the state courts eventually denied the second round petitions for procedural reasons. The state's argument misapprehends Supreme Court precedent and distorts the plain meaning of the word "pending."

The Saffold Court did rely on the state court's decision on whether a habeas petition was untimely to determine whether the state petition was pending, but in a different context: the Court was considering whether the word pending in the habeas statute applied to a time gap between the petitioner's habeas petitions in the California Court of Appeal and the California Supreme Court. Id. at 217-18, 122 S.Ct. 2134. This was an issue because in California, petitioners file separate writs at each court level instead of appeals, and California uses a "reasonableness" standard rather than a strict time limit to determine whether the next writ was timely filed after the first was denied. Id. at 221-22, 122 S.Ct. 2134.

While Saffold clearly applies to determine whether a second round habeas petition was pending between levels of review, it is not relevant to whether the second round habeas petitions were pending while the state courts were considering them. "The dictionary defines `pending' ... as `in continuance' or `not yet decided.'" Id. at 219, 122 S.Ct. 2134 (quoting WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1669 (1993)). A petition is clearly pending after it is filed with a state court, but before that court grants or denies the petition.

Under the state's strained definition of "pending," a habeas petitioner would not know whether he was entitled to tolling for a petition filed in state court until the court granted or denied his petition. In the meantime, the AEDPA statute would be running and often would expire before the state court decided the case. So long as a state procedure for filing the habeas petition exists, the petition is pending while the state court considers it, whether the decision is ultimately on the merits or on procedural grounds. See Jenkins, 330 F.3d at 1153 (citing Nino v. Galaza, 183 F.3d 1003, 1005 (9th Cir.1999)). Chavis's second round habeas petitions were pending while they were properly before the California courts for decision.³

B. Reasonableness of Delay Between First Round Petitions

The state also argues that the three-year delay between Chavis's first round California Court of Appeal and Supreme Court petitions was unreasonable, and therefore cannot be tolled. In contrast to the issue of what is "pending," this is an appropriate situation in which to apply Carey v. Saffold, because we must decide whether Chavis had a pending petition during "intervals between a lower court decision and a filing of a new petition in a higher court." Saffold, 536 U.S. at 222, 122 S.Ct. 2134. The Saffold Court held that a petition is considered pending during such intervals unless the petitioner unreasonably delayed filing a new petition at a higher level. Id. at 223, 225, 122 S.Ct. 2134. The Court then remanded for us to decide whether Saffold had unreasonably delayed. Id. at 226, 122 S.Ct. 2134. On remand, we held that because the California Supreme Court did not deny Saffold's petition as untimely, but rather on the merits and for lack of diligence in filing his initial petition, the delay in filing the California Supreme Court petition was not unreasonable. Saffold v. Carey, 312 F.3d 1031, 1035-36 (9th Cir.2002).

The state argues that we must determine the reasonableness of the three-year delay during Chavis's first round of state petitions, looking to state law. However, we rejected that approach on remand in Saffold, and held that the relevant inquiry is whether the state court denied the petition as untimely. Id. at 1034-36.

Under our decision in Saffold, because Chavis's November 1997 habeas petition to the ...