Cross v. Sisto

• Decision Date: 18 April 2012
• Docket Number: No. 08–17324.,08–17324.
• Citation: 12 Cal. Daily Op. Serv. 4227,2012 Daily Journal D.A.R. 4922,676 F.3d 1172
• Parties: Terrell CROSS, Petitioner–Appellant, v. D.K. SISTO, Warden, Respondent–Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

12 Cal. Daily Op. Serv. 4227

2012 Daily Journal D.A.R. 4922

676 F.3d 1172

Terrell CROSS, Petitioner–Appellant,

v.D.K. SISTO, Warden, Respondent–Appellee.

No. 08–17324.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Aug. 8, 2011.Filed April 18, 2012.

Mary E. Pougiales, Novato, CA, for the petitioner-appellant.

Edmund G. Brown, Jr., Attorney General of California, San Francisco, CA, Dane R. Gillette, Chief Assistant Attorney General, San Francisco, CA, Gerald A. Engler, Senior Assistant Attorney General, San Francisco, CA, Peggy S. Ruffra, Supervising Deputy Attorney General, San Francisco, CA, Dorian Jung, Deputy Attorney General, San Francisco, CA, for the respondent-appellee.

Appeal from the United States District Court for the Northern District of California, William Alsup, District Judge, Presiding. D.C. No. 3:07–cv–03941–WHA.Before: DIARMUID F. O'SCANNLAIN, SUSAN P. GRABER, and CARLOS T. BEA, Circuit Judges.

OPINION

BEA, Circuit Judge:

California prisoner Terrell Cross appeals the district court's denial of his petition for a writ of habeas corpus, claiming that the district court incorrectly interpreted an earlier ruling by the California Supreme Court on one of Cross's state habeas petitions. The district court read that ruling as denying Cross's state court relief because Cross's petition in state court had been untimely filed. The district court therefore denied Cross's federal petition on the ground that it was barred by the one-year statute of limitations under 28 U.S.C. § 2244(d)(1)(A), which tolls the statute of limitations during the pendency of a state court petition, but only if that state petition is properly and timely filed. This case requires us to determine whether, when the California Supreme Court denies a habeas petition with citations to Ex parte Swain, 34 Cal.2d 300, 209 P.2d 793, 796 (1949), and People v. Duvall, 9 Cal.4th 464, 37 Cal.Rptr.2d 259, 886 P.2d 1252, 1258 (1995), the denial is necessarily based on untimeliness.

We agree with Cross that the answer is no and that the district court did not correctly apply California law in determining that the California Supreme Court's denial of Cross's petition with citation to Swain and Duvall meant that Cross's petition before the California Supreme Court was untimely. Because the federal statute of limitations is tolled during the pendency of timely filed state petitions, Cross's federal petition was therefore timely, and we reverse and remand to the district court to consider the petition on the merits.

I. Facts and Procedural History

In 2003, Terrell Cross was convicted in a California trial court of murder in the second degree and other associated crimes. Cross was sentenced to 54 years to life in prison. Cross unsuccessfully appealed to the California Court of Appeal and the California Supreme Court. The California Supreme Court denied Cross's petition for review on January 12, 2005.

Cross's direct appeal became final 90 days later, on April 12, 2005, when Cross's time to petition the United States Supreme Court for a writ of certiorari expired. Cross claims that his lawyer did not inform him of the California Supreme Court's denial of his petition for review. While Cross lists April 12, 2005, as the date of the final California decision in his habeas application to the California superior court, he claims that it was not until July 2005 that he became aware that his direct appeal was final.

On July 27, 2005, Cross filed a petition for habeas corpus with the Alameda County Superior Court, claiming ineffective assistance of trial counsel and ineffective assistance of appellate counsel. On August 8, 2005, the superior court denied Cross's petition for failure to state a prima facie case for relief.

On September 13, 2005, Cross filed a petition for habeas corpus with the California Court of Appeal, First Appellate District, citing the same grounds for relief as the petition in superior court. On September 14, 2005, the California Court of Appeal denied Cross's petition without comment or citation.

Cross filed a petition for habeas corpus with the California Supreme Court on September 29, 2005. On July 19, 2006, the California Supreme Court denied Cross's petition without comment but with citation to Swain, 209 P.2d at 796, and Duvall, 37 Cal.Rptr.2d 259, 886 P.2d at 1258.

Cross began a second round of state habeas petitions when he filed a new petition in the California Court of Appeal on January 23, 2007. The California Court of Appeal denied the petition on January 30, 2007 “without prejudice to petitioner seeking relief in the first instance in the County of Alameda Superior Court.”

Cross proceeded to file his habeas petition in Alameda Superior Court on March 6, 2007. This petition was denied on March 7, 2007, for failure to state a prima facie case for relief.

Cross filed his next habeas petition in the California Court of Appeal on April 2, 2007, and his petition was denied without comment or citation on April 18, 2007. Cross filed a habeas petition in the California Supreme Court on April 30, 2007. The California Supreme Court denied Cross's petition without citation or comment on June 20, 2007. The habeas petitions in Cross's second round of petitions cited different grounds for relief than his initial round of habeas petitions.¹

Cross filed a petition for habeas corpus in federal district court on July 31, 2007. Cross contends that his federal habeas petition was ready to file on July 2, 2007, but that it was delayed because it took prison officials three weeks to file his in forma pauperis application. The district court denied Cross's habeas petition on the ground that it was untimely. The district court reasoned that because the California Supreme Court cited Swain when dismissing Cross's petition, that Court had dismissed his state habeas petition solely on grounds it was untimely filed. An untimely state habeas petition is not considered “properly filed” and thus does not toll the federal statute of limitations. Allen v. Siebert, 552 U.S. 3, 5, 128 S.Ct. 2, 169 L.Ed.2d 329 (2007) (per curiam). This court granted a certificate of appealability on the issues of (1) whether Cross's state petitions were “properly filed” for the purposes of statutory tolling ² and (2) whether Cross is entitled to equitable tolling with respect to the delay in notifying him when his direct appeal became final.

II. Standard of Review

This court reviews de novo the district court's dismissal of a petition for habeas corpus filed pursuant to 28 U.S.C. § 2254. Ramirez v. Yates, 571 F.3d 993, 997 (9th Cir.2009). This court reviews the underlying findings of fact for clear error. Id.

III. AnalysisA. The statute of limitations was tolled while Cross's first round state habeas petition to the California Supreme Court was pending.

Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), there is a one-year statute of limitations for the filing of federal habeas corpus petitions. The statute's time runs from the date on which the state judgment of conviction becomes final. 28 U.S.C. § 2244(d)(1)(A). ³ The statute of limitations is tolled so long as a properly filed application for habeas corpus is pending in state court. 28 U.S.C. § 2244(d)(2).⁴ “[A]n application is ‘properly filed’ when its delivery and acceptance are in compliance with the applicable [state] laws and rules governing filings.” Artuz v. Bennett, 531 U.S. 4, 8, 121 S.Ct. 361, 148 L.Ed.2d 213 (2000) (emphasis omitted). Whether an application has been properly filed “is quite separate from ... whether the claims contained in the application are meritorious and free of procedural bar.” Id. at 9, 121 S.Ct. 361.

A state habeas petition is not “properly filed” for purposes of statutory tolling under AEDPA if the state petition was determined by the state court to be untimely as a matter of state law. Allen, 552 U.S. at 5–6, 128 S.Ct. 2 (citing Pace v. DiGuglielmo, 544 U.S. 408, 414, 417, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005)). Hence, untimely state habeas corpus petitions do not toll AEDPA's statute of limitations. Evans v. Chavis, 546 U.S. 189, 197, 126 S.Ct. 846, 163 L.Ed.2d 684 (2006). California applies a reasonableness standard to determine whether state habeas petitions are timely filed. Id. at 197, 126 S.Ct. 846 (citing Carey v. Saffold, 536 U.S. 214, 221, 122 S.Ct. 2134, 153 L.Ed.2d 260 (2002)). The United States Supreme Court has held that California's reasonableness standard is commensurate with the limitations of other states, which are 30 or 45 days. Carey, 536 U.S. at 222, 122 S.Ct. 2134. In the absence of a clear indication from the California Supreme Court about the timeliness of a petition, this court must determine whether the delay between petitions is reasonable. Evans, 546 U.S. at 198, 126 S.Ct. 846.

Cross's first round state habeas petition to the California Supreme Court was denied with citations to Swain, 209 P.2d at 796, and Duvall, 37 Cal.Rptr.2d 259, 886 P.2d at 1258. The district court interpreted the California Supreme Court's citations to Swain and Duvall to mean that Cross's habeas petition was untimely. Swain requires that a habeas petitioner “allege with particularity the facts upon which he would have a final judgment overturned and that he fully disclose his reasons for delaying in the presentation of those facts.” 209 P.2d at 796. The habeas petition in Swain was denied without prejudice. Id. Duvall also addresses the requirement that a petitioner plead sufficient facts, reiterating that a habeas petitioner should “state fully and with particularity the facts on which relief is sought.” 37 Cal.Rptr.2d 259, 886 P.2d at 1258.

The district court's interpretation is contrary to this court's interpretation of identical citations to Swain and Duvall in Gaston v. Palmer, 417 F.3d 1030 (9th Cir.2005), as amended by order, 447 F.3d 1165 (9th Cir.2006). In Gaston, this court held:

In light of its citations to Swain...