United States v. 2007-02-14 | 02-17359 | THORSON VPALMER | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 RICHARD DEAN THORSON, No. 02-17359
Petitioner-Appellant, D.C. No.
v. CV-02-05212-AWI/  SMSANA M. RAMIREZ PALMER,
Respondent-Appellee. OPINION

Appeal from the United States District Court
for the Eastern District of California
Anthony W. Ishii, District Judge, Presiding
Argued and Submitted
November 13, 2006—San Francisco, California
Filed February 15, 2007
Before: William C. Canby, Jr., John T. Noonan, and
Richard A. Paez, Circuit Judges.
Opinion by Judge Canby
1895

-- 1 of 5 --

COUNSEL
Richard Dangler; C. Roman Rector; Sacramento, California,
for the petitioner-appellant.
Catherine Chatman, Deputy Attorney General, Sacramento,
California, for the respondent-appellee.
OPINION
CANBY, Circuit Judge:
Richard Thorson appeals the district court’s dismissal of his
federal habeas corpus petition, brought pursuant to 28 U.S.C.
§ 2254, as time-barred. We have jurisdiction under 28 U.S.C.
§ 2253. Reviewing de novo, Brambles v. Duncan, 412 F.3d
1066, 1069 (9th Cir. 2005), we affirm. We conclude that,
because the California Supreme Court denied Thorson’s state
habeas petition as untimely, Thorson was not entitled to toll-
ing while his untimely petition was pending in state court.
Without that tolling, Thorson’s federal habeas corpus petition
fell outside the one-year limitation period for a state prisoner
filing a federal habeas corpus petition.
Background
Thorson was convicted in California state court of second
degree murder. His conviction was affirmed on direct review
and became final on June 25, 1997.
Thorson unsuccessfully sought habeas relief in California
Superior Court 114 days later. More than a year and a month
after the denial of his first state habeas petition, Thorson filed
a second habeas petition in the California Court of Appeal.
His second petition was denied without comment or citation.
Twenty-one days later, Thorson filed a third habeas petition
1898 THORSON v. PALMER

-- 2 of 5 --

in the California Supreme Court. That court denied Thorson’s
third petition with the following order, which stated in its
entirety:
Petition for writ of habeas corpus is DENIED. (See
In re Robbins (1998) 18 Cal. 4th 770, 780.).
On January 31, 2002, 124 days after the Supreme Court’s
summary denial, Thorson filed the present petition for habeas
corpus in federal district court. The district court denied the
federal petition as untimely, finding that Thorson was not
entitled to tolling under 28 U.S.C. § 2244(d)(2) because the
California Supreme Court had denied his state habeas petition
as untimely.
Discussion
[1] Thorson was required to seek federal habeas corpus
relief by June 26, 1998, a year and a day after his state court
conviction became final. 28 U.S.C. § 2244(d)(1)(A); Patter-
son v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001) (applying
Federal Rule of Civil Procedure 6(a) to the AEDPA statute of
limitations). Absent tolling, Thorson’s federal habeas petition,
filed on January 31, 2002, falls far outside the one-year limi-
tation period of § 2244.
[2] Thorson was entitled to tolling of the one-year limita-
tions period for those time periods during which his “properly
filed” state habeas petitions were “pending.” 28 U.S.C.
§ 2244(d)(2). But if the California Supreme Court denied his
third petition as untimely, that petition was neither “properly
filed” nor “pending,” in which case Thorson would not be
entitled to statutory tolling. See Bonner v. Carey, 425 F.3d
1145, 1149 (9th. Cir. 2005) (citing Pace v. DiGuglielmo, 544
U.S. 408, 417 (2005)).
[3] We conclude that the California Supreme Court clearly
rejected Thorson’s habeas petition as untimely. The Court’s
1899 THORSON v. PALMER

-- 3 of 5 --

summary order cites the very page of Robbins that sets forth
“the basic analytical framework” governing California’s time-
liness determinations in habeas corpus proceedings. See Rob-
bins, 18 Cal. 4th at 780. Robbins also describes California’s
practice of disposing of habeas petitions by summary order
with citation to certain seminal cases. See id. at 814 n.34. We
therefore conclude that the California Supreme Court’s cita-
tion to Robbins was a clear ruling that Thorson’s petition was
untimely. See Evans v. Chavis, 126 S. Ct. 846, 858 (2006)
(Stevens, J., concurring) (“The decision that a petition has
been untimely filed need not be explicitly stated; citation to
a case in which a petition was dismissed as untimely filed cer-
tainly would suffice.”) (citing Robbins, 18 Cal. 4th at 814 n.
34)); Amesquita v. Hickman, 2006 WL 2849821, at *6 (E.D.
Cal. 2006); Graves v. Carey, 2006 WL 2329429, at *6 n. 10
(N.D. Cal. 2006) (“[T]he only plausible reading of the Cali-
fornia Supreme Court’s citation to Robbins is that the petition
was denied for untimeliness.”).
[4] It is not clear from the order denying Thorson’s third
post-conviction petition just which filing delay the California
Supreme Court deemed untimely. Thorson filed his third peti-
tion, in the California Supreme Court, only twenty-one days
after the denial of his second petition by the California Court
of Appeal. We agree with the district court that it is most
likely that the period deemed excessive by the California
Supreme Court was the thirteen-month-plus period between
the denial of his first petition in Superior Court and the filing
of his second petition in the Court of Appeal. If that is the
case, then Thorson’s federal one-year limitation clearly
expired because he would not be entitled to tolling during the
thirteen-month period or thereafter; his petition to the Court
of Appeal at the end of that time would have been held by the
California Supreme Court to be untimely, and it therefore was
not “properly filed.”
[5] We need not be concerned by any ambiguity in the Cal-
ifornia Supreme Court’s order, however, because it cannot
1900 THORSON v. PALMER

-- 4 of 5 --

affect our conclusion. Even if the California Supreme Court
was referring only to the delay (doubtless evaluated in the
light of earlier delays) during the twenty-one days between
denial of the second petition in the California Court of Appeal
and Thorson’s filing of his third petition in the Supreme
Court, Thorson has exceeded his federal limitation period.
First, he waited 113 days between the date his conviction
became final and the filing of his first petition in Superior
Court. That time is not subject to tolling. See Nino v. Galaza,
183 F.3d 1003, 1006 (9th Cir. 1999) (“AEDPA’s statute of
limitations is not tolled from the time a final decision is issued
on direct appeal and the time the first collateral challenge is
filed . . . .”). Second, even if the California Supreme Court
ruling of untimeliness applied only to the 21-day delay in fil-
ing the petition in the Supreme Court itself, then Thorson’s
petition was not “properly filed” in the California Supreme
Court. As a result, the AEDPA clock would have begun to run
again on the date the California Court of Appeal denied Thor-
son’s second petition and would not have stopped until he
filed his federal habeas petition. See Bonner, 425 F.3d at 1149
(“Under Pace, if a state court denies a petition as untimely,
none of the time before or during the court’s consideration of
that petition is statutorily tolled.”). The length of time from
the date of denial by the Court of Appeal (March 2, 2001)
until the filing of Thorson’s federal petition (January 31,
2002) was 335 days. When the 113 days preceding the filing
of his first state petition is added to that number, his untolled
time ran for at least 448 days, substantially exceeding the one-
year limitation of § 2244.
The district court thus properly held that Thorson’s federal
petition was statutorily time-barred. The judgment of the dis-
trict court is
AFFIRMED.
1901 THORSON v. PALMER

-- 5 of 5 --