Townsend v. Knowles

• Decision Date: 21 April 2009
• Docket Number: No. 07-15712.,07-15712.
• Citation: 562 F.3d 1200
• Parties: William Emerson TOWNSEND, Petitioner-Appellant, v. Michael KNOWLES, Warden, Ione State Prison, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

562 F.3d 1200

William Emerson TOWNSEND, Petitioner-Appellant, v. Michael KNOWLES, Warden, Ione State Prison, Respondent-Appellee.

No. 07-15712.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 9, 2009.

Filed April 21, 2009.

John Paul Balazs, Law Offices of John P. Balazs, for the petitioner-appellant.

Robert Todd Marshall, Assistant Attorney General, AGCA—Office of the California Attorney General (SAC), for the respondent-appellee.

Appeal from the United States District Court for the Eastern District of California, Garland E. Burrell, District Judge, Presiding. D.C. No. CV-03-00520-GEB(PAN).

Before: PROCTER HUG, JR. and CARLOS T. BEA, Circuit Judges, and NANCY G. EDMUNDS,^* District Judge.

EDMUNDS, District Judge:

William Emerson Townsend, a California state prisoner, appeals the district court's order denying his 28 U.S.C. § 2254 habeas corpus petition, which challenged his conviction for second degree murder. In this appeal, we are asked to decide whether Townsend's petition is untimely based on an intervening change in the law, see Pace v. DiGuglielmo, 544 U.S. 408, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005). We conclude that, although he is ineligible for statutory tolling, Townsend is entitled to equitable tolling. See Harris v. Carter, 515 F.3d 1051 (9th Cir.2008), cert. denied sub nom. Brunson v. Harris, ___ U.S. ___, 129 S.Ct. 397, 172 L.Ed.2d 323 (2008). Because equitable tolling renders Townsend's petition timely filed, we consider the merits of his appeal. We affirm the district court's denial of Townsend's habeas petition. The district court correctly concluded that the California Superior Court's rejection of Townsend's due process and ineffective assistance claims was not contrary to or an unreasonable application of clearly established federal law.

I

A. State Court Proceedings

On June 10, 1997, a complaint was filed in Sacramento County Superior Court charging Townsend with one count of murder and alleging an enhancement that he personally used a dangerous weapon, i.e., a knife, during the charged crime of murder. A jury acquitted Townsend of first degree murder but found him guilty of the lesser included crime of second degree murder. Cal.Penal Code § 187. The jury also found true the allegation that Townsend personally used a knife during the murder. Cal.Penal Code § 12022(b).

On September 4, 1998, Townsend was sentenced to 15 years to life for his conviction of second degree murder and was further ordered to serve a one-year consecutive sentence for his personal use of a knife within the meaning of California Penal Code § 12022(b). That same day, Townsend filed a notice of appeal.

On June 30, 2000, the California Court of Appeal affirmed Townsend's judgment and sentence. Townsend filed a timely petition for review in the California Supreme Court. That petition was denied on October 18, 2000.

On November 20, 2001, Townsend filed a state habeas petition in the Sacramento Superior Court raising for the first time the claims he later raised in his federal habeas petition.

On December 17, 2001, the Superior Court issued a reasoned opinion denying Townsend's habeas petition as both untimely under In re Clark, 5 Cal.4th 750, 21 Cal.Rptr.2d 509, 855 P.2d 729 (1993), and without merit.

On February 7, 2002, Townsend filed a state habeas petition in the California Court of Appeal reiterating the claims asserted in his Superior Court petition.¹ The California Court of Appeal denied Townsend's petition without explanation on February 21, 2002.

On June 13, 2002, Townsend filed a state habeas petition in the California Supreme Court reiterating the same claims as those asserted in his Superior Court petition. The California Supreme Court issued a silent denial of Townsend's state habeas petition on January 22, 2003.

B. Federal Court Proceedings

On March 13, 2003, Townsend filed his federal habeas petition in the district court, and it was referred to a magistrate judge. The government filed an answer on July 8, 2003 that did not assert, as an affirmative defense, that the one year statute of limitations period under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2244(d)(1), had expired.

On April 21, 2006, the magistrate judge filed findings and recommendations, finding that Townsend's claims were not procedurally defaulted but recommending that Townsend's petition be denied on the merits. Townsend filed objections on May 7, 2006. The district court, after a de novo review, adopted the findings and recommendations in full, and denied Townsend's federal habeas petition on June 5, 2006.

Townsend filed a timely notice of appeal, and this court granted Townsend's certificate of appealability with respect to the following three issues: (1) whether the trial court erred by instructing the jury with regard to the felony murder rule; (2) whether trial counsel provided ineffective assistance by failing to challenge the instruction; and (3) whether these claims are procedurally barred.²

II

A. Timeliness of Townsend's Federal Habeas Petition

Before addressing the merits of Townsend's petition, we must decide whether that petition is untimely based on an intervening change in the law, see Pace v. DiGuglielmo, 544 U.S. at 413-14, 125 S.Ct. 1807.³ "The facts underlying this claim for tolling of AEDPA's limitations period are undisputed. We review de novo whether the statute of limitations should be tolled." Harris, 515 F.3d at 1054.

Townsend's conviction became final on January 16, 2001, and absent tolling, the last day for Townsend to file a federal habeas petition was January 16, 2002. Townsend's judgment of conviction became "final" within the meaning of 28 U.S.C. § 2244(d)(1)(A) when the time for filing a petition for writ of certiorari in the United States Supreme Court expired. "A judgment becomes final for purposes of 28 U.S.C. § 2244(d) when the period for filing a petition for certiorari in the U.S. Supreme Court expires. Petitions for certiorari must be filed in the U.S. Supreme Court within 90 days after the supreme court of the state in which the prisoner was convicted issues its opinion or denies review." Harris, 515 F.3d at 1053 n. 1 (internal citations omitted). As shown below, Townsend is not eligible for statutory tolling but is entitled to equitable tolling.

1. Statutory Tolling

AEDPA imposes a one-year statute of limitations period for federal habeas petitions and also addresses tolling of that limitations period. 28 U.S.C. § 2244(d). Section 2244(d)(2) provides that "[t]he 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." Id. at 2244(d)(2) (emphasis added). The United States Supreme Court has interpreted the statutory term "properly filed." In Artuz v. Bennett, 531 U.S. 4, 8, 121 S.Ct. 361, 148 L.Ed.2d 213 (2000), it determined that "an application is `properly filed' when its delivery and acceptance are in compliance with the applicable laws and rules governing filings." It was subsequently determined, in Pace, 544 U.S. at 417, 125 S.Ct. 1807, that a state's "time limits, no matter their form, are `filing' conditions." Accordingly, if "the state court rejected" a state habeas petition "as untimely, it was not `properly filed,' and [the petitioner] is not entitled to statutory tolling under § 2244(d)(2)." Id.; accord Bonner v. Carey, 425 F.3d 1145, 1148-49 (9th Cir.2005) (observing that "[t]he fact that California provides exceptions to its timely filing requirement" and "the fact that the superior court also denied [the petitioner]'s petition on the merits" do not alter the conclusion that an untimely state filing is not properly filed within the meaning of § 2244(d)(2)), opin. amended on other grounds, 439 F.3d 993 (9th Cir.2006).

Townsend is not entitled to statutory tolling. Because the California Court of Appeal and Supreme Court denied his state habeas petitions without any reasoning, we look to the Sacramento Superior Court's decision denying Townsend's habeas petition as the last reasoned state court decision. Martinez v. Garcia, 379 F.3d 1034, 1037 n. 2 (9th Cir.2004). The California Superior Court held that Townsend's petition was untimely; and, therefore, the petition was not "properly filed" as required by 28 U.S.C. § 2244(d)(2). See Pace, 544 U.S. at 413-14, 417, 125 S.Ct. 1807; Bonner, 425 F.3d at 1148-49. Absent equitable tolling, Townsend's habeas petition is time-barred because AEDPA's one-year statute of limitations period expired on January 16, 2002, and he did not file his federal habeas petition until March 13, 2003.

2. Equitable Tolling

Although he is ineligible for statutory tolling, Townsend is entitled to equitable tolling. The threshold for obtaining equitable tolling is very high, but it applies where a petitioner shows that despite diligently pursuing his rights, some extraordinary circumstance prevented him from timely filing. Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir.2009) (clarifying that this court's standard for equitable tolling is consistent with the standard discussed in Pace). In Harris, this court observed that "[u]ntil the Supreme Court decided Pace on April 27, 2005, our circuit law was different. Our precedent stated that an untimely ... State post-conviction petition was `properly filed' for purposes of § 2244(d) and tolled the statute of limitations while the petition was pending in the state courts." Harris, 515 F.3d at 1053 (citing Dictado v. Ducharme, 244 F.3d 724, 727-28 (9th Cir. 2001)). Prior to Pace, this court had determined that § 2244(d)'s statute of limitations was tolled for "`all of the time during which a state prisoner is attempting, through proper use of state court procedures, to exhaust state court remedies with regard to a particular post-conviction...