Banjo v. Ayers

• Decision Date: 17 June 2010
• Docket Number: No. 08-56512.,08-56512.
• Citation: 614 F.3d 964
• Court: U.S. Court of Appeals — Ninth Circuit
• Parties: Del BANJO, Petitioner-Appellant, v. Robert L. AYERS, Jr., Warden, San Quentin Prison, Respondent-Appellee.

614 F.3d 964

Del BANJO, Petitioner-Appellant,

v.Robert L. AYERS, Jr., Warden, San Quentin Prison, Respondent-Appellee.

No. 08-56512.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted May 6, 2010.

Filed June 17, 2010.

COPYRIGHT MATERIAL OMITTED.

Dennis A. Fischer (argued) and John M. Bishop, Santa Monica, CA, for petitioner-appellant Del Banjo.

Edmund G. Brown Jr., Attorney General of California, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Xiomara Costello, Supervising Deputy Attorney General, and Daniel C. Chang, Deputy Attorney General (argued), Los Angeles, CA, for respondent-appellee Robert L. Ayers, Jr., Warden, San Quentin Prison.

Appeal from the United States District Court for the Central District of California, George H. King, District Judge, Presiding. D.C. No. 2:07-cv-02142-GHK-RC.

Before: DIARMUID F. O'SCANNLAIN and RICHARD C. TALLMAN, Circuit Judges, and FREDERIC BLOCK, District Judge. ^*

OPINION

TALLMAN, Circuit Judge:

Petitioner-Appellant Del Banjo, a California prisoner, appeals an order dismissing his federal habeas corpus petition as untimely pursuant to 28 U.S.C. § 2244(d). The district court determined that Banjo's state court petition for habeas corpus was no longer “pending” during the five-month period between the dismissal of his original petition in the Los Angeles County Superior Court and the filing of a successive petition in the same court, resulting in the expiration of his time to bring a federal habeas petition. Banjo argues that, pursuant to California law, his successive petition was timely, because the fact that he was seeking new evidence to support his claims explained and justified the delay. Thus, he contends that the federal habeas statute of limitation should toll. We disagree, and affirm the district court.

I

On July 13, 2000, Banjo was convicted by a Los Angeles County jury of one count of kidnapping with the intent to commit rape and/or sodomy and one count of sodomy. He was sentenced to prison for twenty-five years to life on January 8, 2001. He appealed to the California Court of Appeal and California Supreme Court without success.

Banjo then began his state habeas proceedings. On December 30, 2003, he filed his first petition in the Los Angeles County Superior Court, requesting relief on three grounds. The superior court issued an order to show cause on one claim, denying relief on the others. The court ultimately held an evidentiary hearing on Banjo's claim, but denied the petition on January 28, 2005, after finding Banjo's key witness not credible. On February 10, 2005, Banjo's motion to reconsider was likewise denied.

Almost five months later, on July 6, 2005, Banjo filed a second petition for a writ of habeas corpus in the Los Angeles County Superior Court. In this petition, Banjo brought the same three claims he had alleged in the first petition, but appended declarations from five new witnesses. The declarations were offered to corroborate the evidence and independently establish the factual allegations that Banjo had raised at the first hearing.

The court denied Banjo's second petition on July 27, 2005, in part because Banjo failed to exercise due diligence in locating the new witnesses. The court observed that the petition “relie[d] upon declaration[s] by people who live in the Southern California area and have been available for investigation, interview and testimony at all relevant times. These are matters that could have been and should have been presented during the extensive proceedings on the first habeas petition.”

Banjo next filed a habeas petition in the California Court of Appeal on September 29, 2005. On April 11, 2006, the court denied that petition without comment. Banjo then filed his last state habeas petition on May 18, 2006, before the California Supreme Court. That petition was summarily denied on March 21, 2007.

Banjo then moved to federal court. He filed a petition for a writ of habeas corpus in the Central District of California on April 2, 2007. California's motion to dismiss the federal petition as untimely was granted. This appeal timely followed.

II

The sole issue on appeal is whether the district court erred in determining Banjo's petition was untimely. We review that question de novo. Miles v. Prunty, 187 F.3d 1104, 1105 (9th Cir.1999). Banjo bears the burden of proving that the statute of limitation was tolled. Smith v. Duncan, 297 F.3d 809, 814 (9th Cir.2002), abrogated on other grounds by Pace v. DiGuglielmo, 544 U.S. 408, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005). We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(c), and we affirm.

III

A

The Antiterrorism and Effective Death Penalty Act of 1996 sets a one-year statute of limitation on habeas corpus petitions filed by state prisoners. 28 U.S.C. § 2244(d); Evans v. Chavis, 546 U.S. 189, 191, 126 S.Ct. 846, 163 L.Ed.2d 684 (2006); Waldrip v. Hall, 548 F.3d 729, 734 (9th Cir.2008). The one-year period begins to run when the state prisoner's conviction becomes final. ¹ 28 U.S.C. § 2244(d)(1)(A). This one-year limitation period tolls, however, while the prisoner's “properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending.” 28 U.S.C. § 2244(d)(2).

Post-conviction review is “pending,” and thus the statute of limitation tolls, while a prisoner is pursuing a full round of habeas relief in the state court. Carey v. Saffold, 536 U.S. 214, 219-21, 122 S.Ct. 2134, 153 L.Ed.2d 260 (2002); Delhomme v. Ramirez, 340 F.3d 817, 819-20 (9th Cir.2003), abrogated on other grounds by Chavis, 546 U.S. 189, 126 S.Ct. 846. The period in which a habeas petition is pending includes the time between a lower court's adverse ruling and the prisoner's filing of a notice of appeal, so long as the filing comports with state law timeliness requirements. Chavis, 546 U.S. at 191, 126 S.Ct. 846. An untimely petition, however, is not “properly filed” pursuant to 28 U.S.C. § 2244(d)(2), and so it does not toll the statute of limitation. Pace, 544 U.S. at 410, 125 S.Ct. 1807; Thorson v. Palmer, 479 F.3d 643, 645 (9th Cir.2007).

Under California's unusual system of independent collateral review, a prisoner seeks review of a lower court's denial of relief by filing an original petition for habeas corpus in the reviewing court. Chavis, 546 U.S. at 192-93, 126 S.Ct. 846; Waldrip, 548 F.3d at 734. The period between a California lower court's denial of review and the filing of an original petition in a higher court is tolled-because it is part of a single round of habeas relief-so long as the filing is timely under California law. Chavis, 546 U.S. at 191-93, 126 S.Ct. 846; Waldrip, 548 F.3d at 734.

A California petition is timely filed if it is filed within a “reasonable time.” Chavis, 546 U.S. at 192-93, 126 S.Ct. 846; Waldrip, 548 F.3d at 734. California has not provided guidance as to what constitutes a “reasonable time.” Chavis, 546 U.S. at 198, 126 S.Ct. 846; Waldrip, 548 F.3d at 734. In the absence of clear direction from the California courts, either in a particular case or in general, we must determine whether the petition at issue was filed within a “reasonable time.” Chavis, 546 U.S. at 198, 126 S.Ct. 846. We cannot infer from a decision on the merits, or a decision without explanation, that the California court concluded that the petition was timely. Id. at 194, 126 S.Ct. 846 (citing Saffold, 536 U.S. at 225-26, 122 S.Ct. 2134). A California court's determination that a filing was untimely, however, is dispositive. Saffold, 536 U.S. at 226, 122 S.Ct. 2134 (“If the California Supreme Court had clearly ruled that Saffold's 4 1/2-month delay was ‘unreasonable,’ that would be the end of the matter....”).

Only the time period during which a round of habeas review is pending tolls the statute of limitation; periods between different rounds of collateral attack are not tolled. Biggs v. Duncan, 339 F.3d 1045, 1048 (9th Cir.2003). We employ a two-part test to determine whether the period between the denial of one petition and the filing of a second petition should be tolled. Hemmerle v. Schriro, 495 F.3d 1069, 1075 (9th Cir.2007); King v. Roe, 340 F.3d 821, 823 (9th Cir.2003), abrogated on other grounds by Chavis, 546 U.S. 189, 126 S.Ct. 846. “First, we ask whether the petitioner's subsequent petitions are limited to an elaboration of the facts relating to the claims in the first petition.” King, 340 F.3d at 823. If the petitions are not related, then the subsequent petition constitutes a new round of collateral attack, and the time between them is not tolled. Hemmerle, 495 F.3d at 1075; King, 340 F.3d at 823. If the successive petition was attempting to correct deficiencies of a prior petition, however, then the prisoner is still making “proper use of state court procedures,” and habeas review is still pending. King, 340 F.3d at 823 (quoting Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir.1999)); Hemmerle, 495 F.3d at 1075. Second, if the successive petition was not timely filed, the period between the petitions is not tolled. Hemmerle, 495 F.3d at 1075; King, 340 F.3d at 823.

B

Banjo's conviction was affirmed by the California Court of Appeal, and the California Supreme Court denied review on October 16, 2002. Because Banjo did not petition for certiorari, his conviction became final ninety days later, on January 14, 2003. Sup.Ct. R. 13; Brambles v. Duncan, 412 F.3d 1066, 1069 (9th Cir.2005) (citing Bowen v. Roe, 188 F.3d 1157, 1158-59 (9th Cir.1999)). Banjo did not file a federal petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 until April 2, 2007, more than four years later. Accordingly, absent statutory tolling under 28 U.S.C. § 2244(d)(2), Banjo's petition was untimely.

On December 30, 2003, Banjo filed his first petition for a writ of habeas corpus in Los Angeles County Superior Court. At that point, he had...