Bunney v. Mitchell

• Citation: 262 F.3d 973
• Decision Date: 28 August 2001
• Docket Number: No. 00-15432,00-15432
• Parties: (9th Cir. 2001) MARCIA ELLEN BUNNEY, Petitioner-Appellant, v. GWENDOLYN MITCHELL, <A HREF="#fr1-*" name="fn1-*">* Warden of the Central California Women's Facility, Respondent-Appellee
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 973

262 F.3d 973 (9th Cir. 2001)

MARCIA ELLEN BUNNEY, Petitioner-Appellant, v. GWENDOLYN MITCHELL,^* Warden of the Central California Women's Facility, Respondent-Appellee.

No. 00-15432

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted January 10, 2001

Opinion Filed March 5, 2001

Opinion and Submission Withdrawn May 10, 2001

Resubmitted August 16, 2001

Filed August 28, 2001

Michael Satris, Bolinas, California, for the petitioner-appellant.

Martin S. Kaye, Deputy Attorney General, San Francisco, California, for the respondent-appellee.

Appeal from the United States District Court for the Northern District of California, Saundra B. Armstrong, District Judge, Presiding, D.C. No. CV-97-03282-SBA

Before: Alfred T. Goodwin, Susan P. Graber, and Richard A. Paez, Circuit Judges.

OPINION

PER CURIAM:

In 1982, Petitioner Marcia Ellen Bunney was convicted of first-degree murder in California. On September 4, 1997, she filed a petition for a writ of habeas corpus in district court, pursuant to 28 U.S.C § 2254. The district court dismissed the petition as untimely.

We initially affirmed that dismissal, Bunney v. Mitchell, 241 F.3d 1151 (9th Cir. 2001), then withdrew our opinion and certified to the California Supreme Court the following question:

When is the summary denial of a petition for habeas corpus by the California Supreme Court "final": when filed, 30 days after filing, or at some other time?

Bunney v. Mitchell, 249 F.3d 1188, 1188-89 (9th Cir. 2001). The California Supreme Court denied certification and informed us that it currently is revising the relevant California Rules of Court.

Prisoners like Petitioner, whose convictions became final before the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) was enacted, must file their petitions for habeas corpus within one year of AEDPA's effective date, April 24, 1996. Saffold v. Newland, 250 F.3d 1262, 1265 (9th Cir. 2001). That one-year period ended on April 24, 1997. Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001).

Petitioner filed her petition 133 days later, on September 4, 1997. Nevertheless, the petition was timely. Under 28 U.S.C. § 2244(d)(2), the period "during which a properly filed application for State post-conviction or other collateral review . . . is pending shall not be counted" toward AEDPA's one-year statute of limitations. Petitioner filed a petition for a writ of habeas corpus in the California Supreme Court on February 14, 1997. That petition was denied on May 28, 1997. Rule 24 of the California Rules of Court provides that "[a] decision of the Supreme Court becomes final 30 days after filing." Under Rule 24, a denial of a habeas petition within the California Supreme Court's original jurisdiction is not final for 30 days (and therefore is subject to further action during that time). See People v. Carrington, 40 Cal. App. 3d 647, 650 (1974) (stating that a denial of a writ petition is a "decision" within the meaning of Rule 24). Thus, the denial of Petitioner's state-court habeas petition was not final until June 27, 1997. For purposes of AEDPA's statute of limitations, Petitioner's "clock" began to run again the next day, June 28, 1997. Patterson, 251 F.3d at 1257.

That period of...