Decision Date17 April 1997
Docket NumberNo. 97-70277.,97-70277.
Citation128 F.3d 1283
PartiesArthur CALDERON, Warden, California State Prison, San Quentin, Petitioner, v. UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA, Respondent,
CourtU.S. Court of Appeals — Ninth Circuit


Patti W. Ranger, Deputy Attorney General, San Diego, CA, for Petitioner.

Karen S. Schryver, California Appellate Project, San Francisco, CA; Richard C. Neuhoff, San Francisco, CA, for Real Party In Interest.

Before: KOZINSKI, THOMPSON and TROTT, Circuit Judges.

Argued by Telephone Conference Call and Submitted April 11, 1997.

As Amended on Denial of Rehearing and Suggestion for Rehearing En Banc October 29, 1997.

KOZINSKI, Circuit Judge.

We decide whether the one-year time limit for filing a petition for writ of habeas corpus, enacted in section 101 of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), P.L. 104-132, 1996 U.S.C.C.A.N. (110 Stat.) 1214, 1217, is a statute of limitations subject to equitable tolling or an inflexible limitation on federal court jurisdiction.

I. Background

Real party in interest Rodney Gene Beeler was convicted of first-degree murder by a California jury and sentenced to death. He unsuccessfully pursued a direct appeal in the state courts, see People v. Beeler, 9 Cal.4th 953, 39 Cal.Rptr.2d 607, 891 P.2d 153 (1995), ending with the Supreme Court's denial of his petition for writ of certiorari on January 8, 1996. See Beeler v. California, ___ U.S. ___, 116 S.Ct. 723, 133 L.Ed.2d 675 (1996). Prior to that date, the California Supreme Court had also denied Beeler's petition for writ of habeas corpus. Having thus exhausted his state remedies, Beeler filed a pro se request for appointment of counsel and stay of execution in federal district court. The court granted Beeler's motion for a stay and appointed counsel, Scott Braden and Karen Schryver, to represent him. It also entered an order requiring Beeler to file his habeas petition by March 25, 1997.

Before Beeler's petition was prepared, Braden gave notice that he planned to take employment in Oklahoma and asked the district court for leave to withdraw. The district court granted Braden's request, and Schryver, who was already bogged down in a number of other capital cases, was promoted to lead counsel. Another lawyer, Richard Neuhoff, was appointed as second chair.

On February 3, 1997, Beeler's lawyers asked the district court to extend the filing date for his writ of habeas corpus and equitably toll AEDPA's one-year deadline for filing his petition. The district court granted Beeler's motion. It concluded that the time limit was not a jurisdictional bar but a statute of limitations subject to tolling, and gave Beeler until October 13, 1997, to file his petition. Calderon, the warden of San Quentin, then filed a petition for writ of mandamus in this court, seeking review of the district court's decision.

II. Propriety of Mandamus Review

Although a district court's interlocutory decisions are not generally reviewable, we are authorized to entertain petitions for writ of mandamus in cases that present "questions of law of major importance to the administration of the district courts." State of Arizona v. United States Dist. Ct. (In re Cement Antitrust Litig.), 688 F.2d 1297, 1307 (9th Cir.1982). We decide whether review by mandamus is appropriate by weighing the following five factors:

(1) whether the party seeking the writ has no other adequate means, such as direct appeal, to attain the relief he desires;
(2) whether the petitioner will be damaged or prejudiced in a way that is not correctable on appeal;
(3) whether the district court's order is clearly erroneous as a matter of law;
(4) whether the district court's order is an oft repeated error or manifests persistent disregard for the federal rules; and
(5) whether the district court's order raises new and important problems or issues of law of first impression.

Calderon v. United States Dist. Ct., 98 F.3d 1102, 1105 (9th Cir.1996) (citing Bauman v. United States Dist. Ct., 557 F.2d 650, 654-55 (9th Cir.1977), aff'd 459 U.S. 1190, 103 S.Ct. 1173, 75 L.Ed.2d 425 (1983)), petition for cert. filed, ___ U.S.L.W. ___, (Mar. 17, 1997) (No. 96-8402).

Here, the first two Bauman factors militate in favor of reaching the question raised by Calderon's petition. The essence of the state's claim is that it is entitled to go forward with Beeler's execution if he does not file a petition by AEDPA's anniversary date, April 23, 1997. By its nature, this claim cannot be vindicated on direct appeal from a final judgment, which would take place long after that date. The fifth Bauman factor is also satisfied here. A large number of state prisoners are in Beeler's position, needing to file petitions quickly in order to comply with the Act, but uncertain as to whether AEDPA's time-limit can be extended. As no other circuit has yet decided this question, and we are rapidly approaching the one-year anniversary of AEDPA's passage, the question presented by Calderon's petition must be answered as promptly as possible. We therefore turn to the merits of the petition.

III. Mechanics of the Time Limit

Prior to AEDPA's enactment, state prisoners had almost unfettered discretion in deciding when to file a federal habeas petition.1 Even delays of more than a decade did not necessarily bar a prisoner from seeking relief. E.g., Lonchar v. Thomas, ___ U.S. ___, ___, 116 S.Ct. 1293, 1295, 134 L.Ed.2d 440 (1996). AEDPA dramatically changed this landscape, shortening the time for filing a federal habeas petition to one year. Section 101 of AEDPA amended 28 U.S.C. § 2244 by adding the following provision:

(d)(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of —
(A) the date on which the judgment became final by conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.

28 U.S.C. § 2244(d).

Under this section, Beeler is required to file his habeas petition within one year of the date his process of direct review came to an end. The Supreme Court denied his petition for writ of certiorari on January 8, 1996, so if AEDPA's one-year limit were deemed to start prior to April 24, 1996, the date of the statute's enactment, Beeler's last chance to file a habeas petition would have expired on January 7, 1997.2

But applying section 101's limitation period in this fashion would impermissibly "attach new legal consequences to events completed before its enactment." Landgraf v. USI Film Prods., 511 U.S. 244, 270, 114 S.Ct. 1483, 1499, 128 L.Ed.2d 229 (1994). Those state prisoners whose year had elapsed prior to AEDPA's enactment would be altogether barred from filing petitions that would have been timely under the old regime. Those prisoners who had some days remaining before their year elapsed would face dire consequences for having wasted the time prior to AEDPA's enactment: They would have to investigate, prepare and file a petition in however much time remained — perhaps as little as one day.

We therefore conclude — along with the Second and Seventh Circuits — that AEDPA's one-year time limit did not begin to run against any state prisoner prior to the statute's date of enactment. See Reyes v. Keane, 90 F.3d 676, 679 (2d Cir.1996) (allowing AEDPA's time limit to run from date prior to enactment "would be entirely unfair and a severe instance of retroactivity"); Lindh v. Murphy, 96 F.3d 856, 866 (7th Cir.1996) (en banc) ("Courts treat a reduction in the statute of limitations as a rule for new cases only."), cert. granted, ___ U.S. ___, 117 S.Ct. 726, 136 L.Ed.2d 643 (1997); see also United States v. Lopez, 100 F.3d 113, 116-17 (10th Cir.1996) (rejecting retroactive application of parallel one-year limit for filing of federal petitions under 28 U.S.C. § 2255). No petition filed on or before April 23, 1997 — one year from the date of AEDPA's enactment — may be dismissed for failure to comply with the section 101's time limit. See Texaco, Inc. v. Short, 454 U.S. 516, 527 n. 21, 102 S.Ct. 781, 791 n. 21, 70 L.Ed.2d 738 (1982) (new statutes of limitation must allow "a reasonable time after they take effect for the commencement of suits upon existing causes of action" (quoting Wilson v. Iseminger, 185 U.S. 55, 62, 22 S.Ct. 573, 575, 46 L.Ed. 804 (1902))); Lindh, 96 F.3d at 866 (AEDPA's time limit is "short enough that the `reasonable time' after April 24, 1996, and the one-year statutory period coalesce").3

IV. Can the One-Year Limit Be Tolled?

Beeler, along with many other prisoners, thus has at least until April 23, 1997, to file his habeas petition. The district court went one step farther and, based on its conclusion that AEDPA's one-year limit could be equitably tolled, extended Beeler's deadline to October 17, 1997. We will upset this decision on petition for writ of mandamus only if ...

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