Judges v. K. Prosper; Bill Lockyer

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 ANDREW PASQUALE CHAFFER, No. 07-16853
Petitioner-Appellant, D.C. No.
v. CV-06-00950-LKK
Eastern DistrictK. PROSPER; BILL LOCKYER, of California,Attorney General, Sacramento  Respondents-Appellees.
ORDER
CERTIFYING
QUESTIONS TO
THE CALIFORNIA
SUPREME COURT

Filed September 2, 2008
Before: Diarmuid F. O’Scannlain and Barry G. Silverman,
Circuit Judges, and James K. Singleton,*
Senior District Judge.
ORDER
We certify to the California Supreme Court the questions
set forth in Part III of this order.
All further proceedings in this case are stayed pending
receipt of the answer to the certified question. This case is
withdrawn from submission until further order of this court.
If the California Supreme Court accepts the certified question
for answer, the parties shall file a joint report six months after
*The Honorable James K. Singleton, United States District Judge for
the District of Alaska, sitting by designation.
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date of acceptance and every six months thereafter advising
us of the status of the proceedings.
I
Pursuant to Rule 8.548 of the California Rules of Court, a
panel of the United States Court of Appeals for the Ninth Cir-
cuit, before which this appeal is pending, certifies to the Cali-
fornia Supreme Court questions of law concerning the
timeliness of a California inmate’s petition for writ of habeas
corpus, in light of the decision of the Supreme Court of the
United States in Evans v. Chavis, 546 U.S. 189 (2006). The
decisions of the Courts of Appeal of the State of California
provide no controlling precedent regarding the certified ques-
tions, the answer to which may be determinative of this
appeal. We respectfully request that the California Supreme
Court answer the certified questions presented below. Our
phrasing of the issue is not meant to restrict the court’s con-
sideration of the case. We agree to follow the answer pro-
vided by the California Supreme Court. If the Supreme Court
declines certification, we will resolve the issue according to
our perception of California law.
II
The caption of the case is:
No. 07-16853
ANDREW PASQUALE CHAFFER,
Petitioner - Appellant,
v.
K. PROSPER; BILL LOCKYER,
Respondents - Appellees.
Counsel for the parties are as follows:
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For Petitioner-Appellant: Timothy J. Foley, Assistant Fed-
eral Defender, 801 I Street, 3rd Floor, Sacramento, CA 95814.
For Respondents-Appellees: Edmund G. Brown, Jr., Attor-
ney General of the State of California; Dane R. Gillette, Chief
Assistant Attorney General; Michael P. Farrell, Senior Assis-
tant Attorney General; Brian G. Smiley, Supervising Deputy
Attorney General; David Andrew Eldridge, Deputy Attorney
General, 1300 I Street, Suite 125, P.O. Box 944255, Sacra-
mento, CA 94244.
III
The questions of law to be answered are:
1. When is a state habeas petition timely filed in Califor-
nia courts; does the term “substantial delay,” as described in
In re Stankewitz, 40 Cal. 3d 391, 396-97 n.1 (1985), mean any
delay that exceeds 60 days after the denial of a habeas petition
by another state court, as suggested by Chavis, 546 U.S. at
200-01?
2. If either Chaffer’s state habeas petition before the Cali-
fornia Court of Appeal or his state habeas petition before the
California Supreme Court was “substantially delayed,” was
the delay justified?
IV
The statement of facts is as follows:
A
On September 30, 2002, Chaffer was convicted in Califor-
nia state court of two counts of corporal injury to a spouse and
sentenced to eight years in state prison. The California Court
of Appeal affirmed the conviction on September 2, 2003. The
California Supreme Court denied Chaffer’s petition for
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review without explanation on November 25, 2003. Chaffer
did not file a petition for certiorari in the United States
Supreme Court. The parties concede that Chaffer’s conviction
became final on February 23, 2004, which was 90 days after
the California Supreme Court denied Chaffer’s petition for
review. See Bowden v. Roe, 188 F.3d 1157, 1159-60 (9th Cir.
1999).
On February 17, 2005, 359 days after his conviction
became final, Chaffer filed a petition for habeas corpus relief
in California state trial court. The trial court denied the peti-
tion on June 15, 2005.1
B
On October 9, 2005, 115 days after the denial of his first
state habeas petition, Chaffer filed a second petition in the
California Court of Appeal. As Chaffer concedes, his second
petition was virtually identical to his first state habeas peti-
tion, but for the addition of “some minor modifications.”
Chaffer provides three explanations for the delay.
First, Chaffer contends that the 115-day delay is justified
because, on July 28, 2005, an inmate law clerk who had
assisted him in preparing his postconviction petitions was
transferred to a new detention facility. Chaffer needed
approximately two business days to relocate the materials rel-
evant to his case, which had been stored by the transferred
clerk in the prison law library. Chaffer thereafter relied on the
assistance of another inmate which, he represents, caused the
additional delay in filing his second state habeas petition.
1Chaffer explains that the 359-day delay was caused by a conflict of
interest with his attorney, discovered shortly after his conviction became
final. We note, however, that the reasonableness of such delay is not at
issue in this case; the parties solely dispute the reasonableness of the
delays preceding the filing of Chaffer’s second and third state habeas peti-
tions.
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Second, Chaffer points to alleged deficiencies in the prison
law library as justifying the delay. He alleges that the prison
law library was missing: one volume of the Lawyer’s Edition
2d of the United States Supreme Court Reports from 2000;
two volumes of the California Reporter 2d from 2003 and
1996; one volume of the Federal Supplement 2d from 2004;
one volume of the Federal Reporter 3d from 2004; one vol-
ume of Shepard’s Federal Supplement from 1995; one volume
of Shepard’s Federal Reporter from 1995; and all volumes of
Shepard’s California Citations. Chaffer also alleges that the
prison library used a “cumbersome ordering system” and that
“inmates are still learning how to navigate.” However, Chaf-
fer does not specifically assert how the alleged deficiencies in
the library actually caused the 115-day filing delay.2
Third, Chaffer argues that the delay was justified by his
reliance on our opinion in Saffold v. Carey, 312 F.3d 1031
(9th Cir. 2002). There, we held that a state habeas petition
was timely despite a 4½ month filing delay, in light of the
California Supreme Court’s having denied the petition “on the
merits and for lack of diligence.” Id. at 1032-33, 1035-36.
Chaffer states that he believed that Saffold held that a 4½
month filing delay is per se reasonable under California law.
The California Court of Appeal denied the petition without
explanation on October 27, 2005.
2We also note that Chaffer’s allegations largely are controverted in a
declaration provided by Sherry Phearson, the librarian at Chaffer’s prison.
Phearson represented that, during all times relevant in this appeal, the
prison library “has had either in its own stores or available to it within one
or two days of request a complete set of up-to-date primary legal
resources.” Phearson also stated that, following “a diligent search of the
library access logs,” “at no time has Mr. Chaffer accessed the [prison]
[l]ibrary in [her] tenure.” The district court did not render factfinding as
to the alleged deficiencies in the prison law library or as to Chaffer’s use
of the prison law library. However, for the reasons discussed infra in Sec-
tion V.B.2, we believe that certification nevertheless is warranted.
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C
On February 6, 2006, 101 days following the denial of his
second habeas petition by the California Court of Appeal,
Chaffer filed a third state habeas petition in the California
Supreme Court. Whereas Chaffer’s prior two state habeas
petitions were approximately 60 pages in length, his third
state habeas petition was 27 pages and thus substantially was
reworked. Chaffer explains the 101-day delay by noting that
he lacked both counsel and a formal legal education, by point-
ing to the alleged deficiencies in the prison law library dis-
cussed supra, and by arguing again that he relied on our
holding in Saffold, 312 F.3d 1031.
The California Supreme Court denied the petition without
explanation on October 25, 2006.
D
On May 1, 2006, prior to the denial of his third state habeas
petition, Chaffer filed a petition for habeas corpus relief in
federal district court. On June 26, 2006, Prosper filed a
motion to dismiss on the ground that Chaffer’s habeas petition
was untimely under AEDPA’s one-year statute of limitations
due to the delay prior to the filing of his second and third state
habeas petitions. On July 26, 2006, Chaffer filed a memoran-
dum in opposition to the motion to dismiss, arguing that the
delays were justified by alleged deficiencies in the prison law
library, as well as the disruption that was caused by the trans-
fer of the prison law clerk who had been assisting him.
On March 14, 2007, a federal magistrate judge entered a
Findings and Recommendations, which recommended that the
district court grant Prosper’s motion to dismiss. The Findings
and Recommendations did not address Chaffer’s claims con-
cerning the prison library’s alleged deficiencies. The magis-
trate judge concluded that the transfer of the prison law clerk
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did not justify the filing delay underlying Chaffer’s state
habeas petition before the California Court of Appeal, noting,
This situation is not analogous to a lawyer refusing
to return transcripts and the like to a client. A client
has certain reasonable expectations of a licensed
attorney and, generally, reasonably relies on that
attorney client relationship in the course of the repre-
sentation. While a fellow prisoner may have been
assisting petitioner, he was representing himself. He
therefore controlled his legal materials, and his poor
choice in relinquishing so much control over them
that they were temporarily lost by a fellow prisoner
is not a fact which weighs in his favor.
On August 16, 2007, the district court adopted and affirmed
the Findings and Recommendations, without an opinion.
V
We respectfully submit that the questions presented in Sec-
tion III need certification for the following reasons:
A
Under 28 U.S.C. § 2244(d)(1), “[a] 1-year period of limita-
tion 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 one-year period runs from “the date on which the
judgment became final by the conclusion of direct review or
the expiration of the time for seeking such review.” Id.
§ 2244(d)(1)(A). However, § 2244(d)(2) provides an excep-
tion to such requirement for “[t]he time during which a prop-
erly filed application for State post-conviction or other
collateral review with respect to the pertinent judgment or
claim is pending.”
“The time that an application for state postconviction
review is ‘pending’ includes the period between (1) a lower
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court’s adverse determination, and (2) the prisoner’s filing of
a notice of appeal, provided that the filing of the notice of
appeal is timely under state law.” Chavis, 546 U.S. at 191
(citing Saffold, 536 U.S. 214) (emphasis omitted). Thus, the
interval between the final adjudication of a state habeas peti-
tion and the timely filing of a notice of appeal is tolled in cal-
culating whether a federal habeas petition is timely. See
Saffold, 536 U.S. at 219-21.
“In most States a statute sets out the number of days for fil-
ing a timely notice of appeal,” but California “has a special
system governing appeals when prisoners seek relief on col-
lateral review,” under which a petitioner may file either a “pe-
tition for rehearing” or a separate state habeas petition, the
latter of which must be filed within a “reasonable time.” Id.
(citing In re Harris, 5 Cal. 4th 813, 828, n. 7 (1993)); see In
re Crockett, 159 Cal. App. 4th 751, 757 (Cal. Ct. App. 2008)
(“A petitioner seeking relief on habeas corpus need only file
a petition without substantial delay, or if delayed, adequately
explain the delay.”).
However, the Supreme Court has observed that “Califor-
nia’s collateral review process functions very much like that
of other States, but for the fact that its timeliness rule is inde-
terminate,” Carey, 536 U.S. at 222, such that “California’s
‘reasonable time’ standard [does] not lead to filing delays
substantially longer than those in States with determinate
timeliness rules,” Chavis, 546 U.S. at 201. The Supreme
Court therefore has held that, when tasked with determining
whether a habeas petition filed in California court was timely,
we must “simply . . . ask and [ ] decide whether the state pris-
oner made the relevant filing within a reasonable time,” while
bearing in mind that California’s “reasonableness” standard
does not vary significantly from determinate filing systems.
Chavis, 546 U.S. at 199-200.
Although the Supreme Court did not explicitly hold as
much, the State of California argues that Chavis infers that
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under California law a filing delay beyond 60 days is “sub-
stantial,” and that a petitioner bears the burden of establishing
the reasonableness of such a delay. However, the Supreme
Court qualified its holding in Chavis by noting that “Califor-
nia, of course, remains free to tell us if, in this respect, we
were wrong,” and that “California courts themselves might
alleviate the problem by clarifying the scope of the words
‘reasonable time.’ ” Id. Since Chavis was decided, California
law has not clarified whether a filing delay greater than 60
days necessarily qualifies as “substantial.” Accordingly, while
we must faithfully apply the Supreme Court’s decision in
Evans, we seek certification in part so that the California
Supreme Court can assess whether the two filing delays in
this case—each more than 100 days in length—qualify as
“substantial delays” under California law.3
B
If the delays in this case were “substantial,” then we also
ask the California Supreme Court for guidance in determining
whether Chaffer sufficiently has justified them. Because
Chaffer filed habeas petitions in the California Court of
Appeal and in the California Supreme Court, the “reasonable-
ness” standard controls whether such petitions were timely.
See Saffold, 536 U.S. at 221. If either petition was untimely,
then Chaffer’s federal habeas petition is time-barred under 28
U.S.C. § 2244(d)(1)(A), in light of the 359-day delay that pre-
ceded the filing of his first state habeas petition. As noted,
Chaffer proffers four justifications for the delays; we believe
that certification is warranted in addressing three such claims.
1
First, Chaffer argues that the delays should be excused
3We note that California has a separate set of procedures for capital
cases, which are only relevant to this case by analogy. See In re Clark, 5
Cal. 4th 750, 782-83 (1993).
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because “California courts commonly forgive substantial
delays involving an incarcerated petitioner of limited educa-
tion, proceeding without an attorney, who is attempting to
challenge a conviction or sentence.” Chaffer cites in support
to a string of California decisions relying in part on such fac-
tors in deeming a state habeas petition timely. See Ex parte
James, 38 Cal. 2d 302, 309 (1952) (“[B]ecause of his igno-
rance, petitioner did not realize that he had any grounds for
attacking the judgment until long after the time for appeal had
expired.”); see also In re Saunders, 2 Cal. 3d 1033, 1041
(1970) (holding that a delay was reasonable because of “peti-
tioner’s allegations that he had only a ninth grade education
and was without experience or education in the law,” among
other reasons); In re Moss, 175 Cal. App. 3d 913, 922 (Cal.
Ct. App. 1985) (“[T]he delay was attributable to Moss’ inabil-
ity to secure appellate counsel.”); In re Spears, 157 Cal. App.
3d 1203, 1208 (Cal. Ct. App. 1984) (holding that “petitioner
has adequately explained his delay as attributable to his lack
of capacity to represent himself . . . and the scarcity of chan-
nels through which legal assistance is available to indigent
prisoners”).
However, such decisions do not shed light on whether a
petitioner may justify a substantial filing delay merely based
on his pro se status or lack of a formal legal education, or
whether a petitioner instead must articulate the specific rea-
sons that such factors actually caused the delay. See, e.g., id.
Chaffer arguably provides such an explanation regarding the
delay preceding his second habeas petition, in light of the
transfer of the prison law clerk who had been assisting him in
preparing his postconviction materials. However, Chaffer pro-
vides no similar explanation for the delay preceding his third
state habeas petition. Accordingly, we ask the California
Supreme Court to clarify whether the mere fact that a peti-
tioner filed his state habeas petitions pro se justifies a substan-
tial delay.
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2
Similarly, Chaffer argues that various alleged deficiencies
in his prison law library justifies the delays in filing his state
habeas petitions. However, Chaffer again provides no expla-
nation for how such deficiencies actually caused the delays.
Accordingly, we ask the California Supreme Court to clarify
whether the mere fact that a prison library is out of compli-
ance with governing law may justify a substantial delay,
absent an adequate explanation of how such deficiencies actu-
ally caused the relevant delay.
3
As noted, Chaffer argues that the relevant delays were justi-
fied by his belief that, under Saffold, 312 F.3d 1031, a filing
delay of up to 4½ months was per se reasonable. However,
such was a misreading of our holding in that case. In Saffold,
we explicitly noted that we “ha[d] not been asked to provide
any bright-line rule for determining what constitutes ‘unrea-
sonable’ delay under California’s indeterminate timeliness
standard.” Id. at 1036 n.1. Moreover, the facts of Saffold are
materially distinguishable: there, we determined “whether the
California Supreme Court’s order denying [Saffold’s] habeas
corpus petition both ‘on the merits and for lack of diligence’
means that his petition before that court was untimely,”
whereas here the California Supreme Court did not state that
it denied Chaffer’s habeas petition “on the merits” or “for lack
of diligence.” See id. at 1032-33. Accordingly, we are satis-
fied that our opinion in Saffold could not be relied upon for
the broad proposition that a 4½ month delay always is permit-
ted under California law.4
4Chaffer’s reliance on Harris v. Carter, 515 F.3d 1051 (9th Cir. 2008),
is unavailing. There, we applied equitable tolling of the 28 U.S.C. § 2244
statute of limitations, where a petitioner relied in good faith on Ninth Cir-
cuit precedent that was later overturned by the Supreme Court in Pace v.
DiGuglielmo, 544 U.S. 408 (2005). See id. at 1052. This case is distin-
guishable, as here Chaffer allegedly relied on a misunderstanding of our
precedent, rather than on a correct reading of our caselaw that was later
overturned.
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We recognize, of course, that California law nevertheless
may deem a substantial filing delay justified on the ground
that a pro se petitioner reasonably and in good faith relied on
a misreading of our precedent. Because there is no precedent
on point, we ask the California Supreme Court to clarify
whether a pro se petitioner’s misunderstanding of law may
justify a substantial filing delay.
C
The malleability of California’s indeterminate timeliness
rule certainly is a boon for state habeas petitioners, who other-
wise would be required to adhere to unbending deadlines
regardless of their individual circumstances. However, in the
interest of ensuring the proper application of California law in
assessing the timeliness of federal habeas petitions under 28
U.S.C. § 2244(d)—a frequently recurring issue in this Court
—we certify the foregoing questions to the California
Supreme Court in the hope that their resolution may shed
greater light on when a state habeas petition is timely filed
and if not, when it is “substantially delayed,” and on the con-
tours of a sufficient justification of such a delay.
VI
The Clerk of Court is hereby directed to transmit forthwith
to the California Supreme Court, under official seal of the
Ninth Circuit, a copy of this order and request for certification
and all relevant briefs and excerpts of record pursuant to Cali-
fornia Rule of Court 8.548.
IT IS SO ORDERED.
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