Curiel v. Miller

• Decision Date: 25 July 2016
• Docket Number: No. 11-56949,11-56949
• Citation: 830 F.3d 864
• Parties: Freddy Curiel, Petitioner-Appellant, v. Amy Miller, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

830 F.3d 864

Freddy Curiel, Petitioner-Appellant

v.Amy Miller, Warden, Respondent-Appellee.

No. 11-56949

United States Court of Appeals, Ninth Circuit.

Argued and Submitted En Banc March 23, 2016 San Francisco, California

Filed July 25, 2016

Jan B. Norman (argued), Altadena, California, for Petitioner-Appellant.

Kevin Vienna (argued), Supervising Deputy Attorney General; Angela M. Borzachillo, Deputy Attorney General; Julie L. Garland, Senior Assistant Attorney General; Kamala D. Harris, Attorney General; Office of the Attorney General, San Diego, California; for Respondent-Appellee.

Before: Sidney R. Thomas, Chief Judge, and Stephen Reinhardt, Barry G. Silverman, Susan P. Graber, Ronald M. Gould, Richard A. Paez, Jay S. Bybee, Mary H. Murguia, Andrew D. Hurwitz, John B. Owens, and Michelle T. Friedland, Circuit Judges.

Concurrence by Judge Reinhardt ;

Concurrence by Judge Bybee

OPINION

MURGUIA, Circuit Judge:

This case concerns the timeliness of Freddy Curiel's federal habeas petition under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). We hold that the district court erred in dismissing Curiel's habeas petition as untimely.

BACKGROUND

In March 2006, a California jury convicted Curiel of special circumstances first-degree murder and street terrorism. Curiel was sentenced to life in prison without the possibility of parole, plus twenty-five years.

Curiel appealed his conviction to the California Court of Appeal, which affirmed, and to the California Supreme Court, which denied his petition for review on June 11, 2008. Curiel's conviction became final on September 9, 2008, after the time for Curiel to file a petition for a writ of certiorari in the United States Supreme Court lapsed. 28 U.S.C. § 2244(d)(1)(A).

On May 12, 2009,¹ Curiel initiated a collateral attack on his conviction by filing a petition for a writ of habeas corpus in Orange County Superior Court. The court denied his petition on June 10, 2009, on the “separate and independent grounds” that it was untimely and that Curiel failed to set forth a prima facie case for relief. On July 7, 2009, Curiel filed a second habeas corpus petition in the California Court of Appeal, which the Court of Appeal denied on August 6, 2009, without comment or citation to authority. On September 7, 2009, Curiel filed a third habeas petition in the California Supreme Court, raising the same claims as his first two state petitions. On February 18, 2010, the California Supreme Court dismissed Curiel's petition in a decision that reads in full: “The petition for writ of habeas corpus is denied. (See In re Swain (1949) 34 Cal.2d 300, 304, 209 P.2d 793 ; People v. Duvall (1995) 9 Cal.4th 464, 474, 37 Cal.Rptr.2d 259, 886 P.2d 1252.).”

On March 8, 2010, Curiel filed a federal petition for habeas corpus pursuant to 28 U.S.C. § 2254 in federal district court. The government moved to dismiss Curiel's habeas petition as untimely because it was filed more than one year after his conviction became final. In opposition, Curiel argued that AEDPA's statute of limitations should be statutorily tolled for the period during which his state habeas petitions were pending, and also that he was entitled to equitable tolling due to trial counsel's alleged delay in returning his client file.

Accepting the findings and recommendation of the magistrate judge, the district court determined that Curiel was not entitled to statutory tolling for the three months that his habeas petitions were pending in the California Superior Court or the Court of Appeal because untimely petitions do not toll AEDPA's limitations period. The district court observed that the Superior Court had explicitly imposed an untimeliness bar in denying Curiel's first habeas petition, and held that the Court of Appeal implicitly adopted the Superior Court's reasoning when it denied Curiel's second petition without explanation. The district court did, however, toll Curiel's federal filing deadline for the pendency of his petition in the California Supreme Court, concluding that the Supreme Court's citations to Swain and Duvall indicated that the court had denied Curiel's third petition based solely on the deficiency of his pleadings. Nevertheless, tolling the clock for the period that Curiel's petition was before the California Supreme Court, alone, was insufficient to render Curiel's federal petition timely. Therefore, after rejecting Curiel's equitable tolling argument, the district court dismissed Curiel's habeas petition with prejudice.

Curiel timely appealed, and we issued a certificate of appealability as to the timeliness of Curiel's federal petition for habeas corpus.

STANDARD OF REVIEW

We review de novo a district court's denial of a habeas corpus petition. Hurles v. Ryan , 752 F.3d 768, 777 (9th Cir. 2014). Where, as here, the facts underlying a habeas petitioner's claim for tolling of AEDPA's limitations period are undisputed, we also review de novo whether the statute of limitations should be tolled. Espinoza – Matthews v. California , 432 F.3d 1021, 1025 (9th Cir. 2005).

DISCUSSION

AEDPA requires a state prisoner to file a federal habeas petition pursuant to 28 U.S.C. § 2254 within one year of the date on which his conviction becomes final on direct review, unless the petitioner qualifies for statutory or equitable tolling. Id. § 2244(d)(1)(A). In Curiel's case, AEDPA's one-year statute of limitations lapsed on September 9, 2009. See id. Curiel filed his federal petition on March 8, 2010. Thus, for his petition to be timely, Curiel must demonstrate that he is entitled to at least six months of tolling.

I.

“[A] properly filed application for State post-conviction or other collateral review” tolls AEDPA's statute of limitations for the pendency of the state court proceedings. Id. § 2244(d)(2). A habeas petition that is untimely under state law is not “properly filed.” Pace v. DiGuglielmo , 544 U.S. 408, 413, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005). Therefore, none of the time before or during the state court's consideration of an untimely petition is tolled for purposes of AEDPA's limitations period. Evans v. Chavis , 546 U.S. 189, 197, 126 S.Ct. 846, 163 L.Ed.2d 684 (2006).

In California, courts “appl[y] a general ‘reasonableness' standard” when determining whether a habeas petition was timely filed. Carey v. Saffold , 536 U.S. 214, 222, 122 S.Ct. 2134, 153 L.Ed.2d 260 (2002). A petition is timely under California law when the highest state court to render a decision on the petition finds it to be so. Campbell v. Henry , 614 F.3d 1056, 1061 (9th Cir. 2010).

II.

The California Supreme Court rules on a “staggering” number of habeas petitions each year, generally by issuing “unelaborated ‘summary denials.’ ” Walker v. Martin , 562 U.S. 307, 312–13, 131 S.Ct. 1120, 179 L.Ed.2d 62 (2011). When the California Supreme Court denies a habeas corpus petition without opinion, it “frequently cites either a California Supreme Court case or some other authority which indicates to the petitioner the grounds for the denial.” Harris v. Superior Court , 500 F.2d 1124, 1127–28 (9th Cir. 1974) (en banc). The California Supreme Court has provided us with the following guidance on how to interpret its summary denial practice:

[W]hen respondent asserts that a particular claim or subclaim ... is untimely, and when, nevertheless, our order disposing of a habeas corpus petition does not impose the proposed bar ... as to that claim or subclaim, this signifies that we have considered respondent's assertion and have determined that the claim or subclaim is not barred on the cited ground....

In re Robbins , 18 Cal.4th 770, 77 Cal.Rptr.2d 153, 959 P.2d 311, 340 n. 34 (1998).

“California courts signal that a habeas petition is denied as untimely by citing the controlling decisions ... Clark and Robbins,” which describe California's timeliness rule. Walker , 562 U.S. at 310, 312, 131 S.Ct. 1120 (citing Robbins , 77 Cal.Rptr.2d 153, 959 P.2d at 317 ; In re Clark , 5 Cal.4th 750, 21 Cal.Rptr.2d 509, 855 P.2d 729 (1993) ). By contrast, the cases cited by the California Supreme Court here—In re Swain and People v. Duvall —both concern the pleading requirements that apply to a state habeas petitioner's claims. In Swain, the California Supreme Court explained that a petitioner must “allege with particularity the facts upon which he would have a final judgment overturned.” 209 P.2d at 795–96. The California Supreme Court denied Swain's habeas petition “without prejudice to the filing of a new petition which shall meet the requirements” that it had just set forth. Id. at 796. Likewise, in Duvall, the California Supreme Court reiterated that a habeas petitioner must “state fully and with particularity the facts on which relief is sought” and “include copies of reasonably available documentary evidence supporting the claim.” 37 Cal.Rptr.2d 259, 886 P.2d at 1258.

We understand the California Supreme Court's denial of a habeas petition with citations to Swain and Duvall in conjunction as, “in effect, the grant of a demurrer, i.e. , a holding that [the petitioner] ha[s] not pled facts with sufficient particularity.”² Gaston v. Palmer , 417 F.3d 1030, 1039 (9th Cir. 2005), reh'g granted, opinion modified on other grounds , 447 F.3d 1165 (9th Cir. 2006) ; accord Cross v. Sisto , 676 F.3d 1172, 1177–78 (9th Cir. 2012) ; see also Seeboth v. Allenby , 789 F.3d 1099, 1104 n. 3 (9th Cir. 2015) (“We have held that citation to Duvall and Swain together constitutes ‘dismissal without prejudice, with leave to amend to plead required facts with particularity.’ ” (quoting Cross , 676 F.3d at 1177 )). The United States Supreme Court has attributed the same significance to a citation to Swain. See Ylst v. Nunnemaker , 501 U.S. 797, 805, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991) (summarizing Swain as holding “that facts relied upon in a habeas petition must be alleged with particularity”). Accordingly, and consonant with the California Supreme Court's own explanation of its...