Welch v. Newland
| Decision Date | 13 July 2001 |
| Docket Number | PETITIONER-APPELLANT,No. 00-15366,RESPONDENT-APPELLEE,00-15366 |
| Parties | (9th Cir. 2001) THOMAS JAMES WELCH,, v. ANTHONY C. NEWLAND, WARDEN, |
| Court | U.S. Court of Appeals — Ninth Circuit |
Counsel David M. Porter, Assistant Federal Defender, Sacramento, California, for the petitioner-appellant.
Janis Shank McLean, Deputy Attorney General, Sacramento, California, for the respondent-appellee.
Appeal from the United States District Court for the Eastern District of California Dennis L. Beck, Magistrate, Presiding
Before: William C. Canby, Jr., Michael Daly Hawkins, and Ronald M. Gould, Circuit Judges.
Opinion by Judge Canby; Concurrence by Judge Gould
Petitioner Thomas James Welch, a prisoner of the State of California, appeals from the federal district court's dismissal of his petition for a writ of habeas corpus. The district court determined that Welch had failed to satisfy the one-year statute of limitations for a state prisoner filing a federal habeas petition, see 28 U.S.C. §§ 2244(d)(1), and therefore dismissed the petition as untimely. We conclude that the period of limitations was tolled to an extent that rendered Welch's petition timely. We accordingly reverse.
Welch is a California state prisoner serving a life sentence with the possibility of parole. He pled guilty to two counts of attempted murder, and his conviction became final on December 17, 1993. On January 12, 1994, Welch filed a petition for writ of habeas corpus in the California Superior Court, attacking the validity of his guilty plea. The court denied the petition on March 17, 1994. Over four years later, on August 22, 1998, Welch submitted an original petition for writ of habeas corpus to the California Supreme Court. The petition raised claims that were different from the claim he raised in the Superior Court.1 The California Supreme Court denied this petition without comment or citation on February 24, 1999.
Welch then filed a petition for writ of habeas corpus with the federal district court on March 25, 1999. The State filed a motion to dismiss, asserting that the petition was barred by the one-year limitation period in 28 U.S.C. §§ 2244(d)(1).
The district court granted the motion. It reasoned that Welch had only one year after the passage of §§ 2244(d)(1) to file his petition, and that year expired on April 24, 1997; Welch's 1999 federal petition was therefore untimely. The district court subsequently granted a certificate of appealability, and this appeal followed.
Effective April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214, ("AEDPA"). AEDPA imposed, for the first time, a one-year statute of limitations for state prisoners filing federal petitions for habeas corpus. See 28 U.S.C. §§ 2244(d)(1). For prisoners like Welch, whose convictions had become final before passage of AEDPA, the one-year limitations period began running on AEDPA's effective date, April 24, 1996, and expired on April 24, 1997, unless it was tolled. Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001).
The AEDPA limitation is subject to an important tolling provision, however. It provides: "The time during which a properly filed application for State post-conviction or other collateral review . . . is pending shall not be counted toward any period of limitation." 28 U.S.C. §§ 2244(d)(2). The district court determined that the one-year limitations period was not tolled between the date of denial of Welch's petition by the California Superior Court and the date of Welch's filing of his original habeas petition with the California Supreme Court, because no properly filed petition was pending during that period. Consequently, under the district court's view, Welch's one year to file a federal petition ended on April 24, 1997, making his 1999 federal habeas petition untimely.
We reject the district court's analysis.2 Under our case law, post-conviction review is "pending"--and thus AEDPA's statute of limitations is tolled -- from"the time the first state habeas petition is filed until the California Supreme Court rejects the petitioner's final collateral challenge." Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999) (emphasis added). This tolled period includes intervals between the disposition of a state court petition and the filing of a subsequent petition at the next state appellate level. Id. Under this rule, therefore, Welch's state post-conviction review was"pending" from the entire period between January 12, 1994--the date on which Welch filed his first petition for writ of habeas corpus in the California Superior Court--until February 24, 1999, when the California Supreme Court rejected Welch's final challenge. Consequently, AEDPA's one-year statute of limitations was tolled from April 24, 1996, the date on which AEDPA was enacted, until February 24, 1999, and Welch's March 1999 federal petition was timely.
The State argues that the statute of limitations was not tolled here for two reasons, neither of which convinces us. The State first observes that AEDPA's limitations period is tolled only when a petitioner is properly pursuing his state collateral remedies, see Nino, 183 F.3d at 1006.3 The State contends that Welch did not properly pursue such remedies here because he waited four and a half years to file his subsequent petition with the California Supreme Court. 4
This argument runs afoul of our decision in Saffold v. Newland, 250 F.3d 1262 (9th Cir. 2001). There, we concluded that a petitioner was entitled to statutory tolling under AEDPA even though the petitioner had waited four and one-half months after the California Court of Appeal denied his petition before he filed his next petition in the California Supreme Court. Id. at 1267-68. Our decision in Saffold turned, not on the length of the time gap between petitions, but on the fact that the California Supreme Court had addressed Saffold's petition on the merits.5 Id. at 1267. We reasoned that the purpose of AEDPA's tolling provision was to give state courts an opportunity to address the merits of the petitioner's claim before the federal courts intervened, and thus we declined to adopt a rule that would have required Saffold to have filed his federal petition before the California Supreme Court ruled on the merits of his claim. Id.
In so ruling, we emphasized that we were merely following the tolling rule set out in Nino, which provides that time is tolled under AEDPA while a petitioner is"attempting to exhaust state collateral remedies through proper use of state court procedures." Id. at 1266 (citing Nino, 183 F.3d at 1006) (emphasis added in Saffold). Applying this rule, we implicitly recognized that the question of whether a petitioner has made "proper" use of state court post-conviction relief procedures is for the state courts, rather than the federal courts, to decide.6 Id. at 1266-67. Because the California Supreme Court had addressed the petitioner's claim on the merits, we viewed the California Supreme Court as having recognized the petitioner's use of post-conviction relief procedures to have been "proper," and thus within AEDPA's tolling provision. Id. at 1267-68.
Saffold is controlling in this case because the California Supreme Court's order denying Welch relief without comment or citation constituted a denial on the merits. See Hunter v. Aispuro, 982 F.2d 344, 347-48 (9th Cir. 1992).7 Thus, notwithstanding Welch's four and one-half year delay, his use of California post-conviction relief procedures must be deemed to have been "proper" under our reasoning in Saffold. Consequently, Welch's delay in filing does not defeat tolling under AEDPA.
The State's next argument is that there was no tolling between the denial of Welch's first petition and the filing of his second petition because the claims raised in the first petition were altogether different from the claims raised in the second. Under the State's view, because Welch never followed up on the claim he raised in the first petition, there was no review "pending" from March 25, 1994, when the Superior Court denied Welch's petition, to August 22, 1998, when Welch filed his original petition with the California Supreme Court.
We reject this contention. Recognizing that a petitioner can file multiple petitions while seeking to exhaust relief in California, we held in Nino that AEDPA's statute of limitations is tolled from the time "the first state habeas petition filed until the California Supreme Court rejects the petitioner's final collateral challenge." 183 F.3d at 1006 (emphasis added). In so stating, we did not require that a petitioner raise the same claims that he raised below, nor did we require that a petitioner pursue remedies at each level of review. Id. Indeed, we recognized that Saffold, 250 F.3d at 1266 n.4 (citing Nino, 183 F.3d at 1006 n.2). By definition, an original petition does not require that a petitioner raise the same claims that he may have raised below, nor does it require that a petitioner pursue remedies at each level of review.
Our conclusion that Welch was not required to reallege the same claims in his petition with the California Supreme Court is bolstered by the text of AEDPA's tolling provision, which states that "[t]he time during which a properly filed application for State post-conviction . . . review with respect to the pertinent judgment or claim is pending" is tolled from the limitation period. 28 U.S.C. §§ 2244(d)(2) (emphasis added). This...
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