United States v. 2010-08-13 | 07-16481 | CAMPBELL V. HENRY | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 VALERIE CAMPBELL, No. 07-16481
Petitioner-Appellant, D.C. No.
v.  3:06-cv-02225-CRB
GLORIA HENRY, OPINION
Respondent-Appellee. 
Appeal from the United States District Court
for the Northern District of California
Charles R. Breyer, District Judge, Presiding
Argued and Submitted
May 11, 2010—San Francisco, California
Filed August 13, 2010
Before: Stephen Reinhardt, William A. Fletcher and
N. Randy Smith, Circuit Judges.
Opinion by Judge Reinhardt
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COUNSEL
Eric G. Babcock, Oakland, California, for the petitioner-
appellant.
Edmund G. Brown, Jr., Attorney General of California; Dana
R. Gillette, Chief Assistant Attorney General; Gerald A.
Engler, Senior Assistant Attorney General; Peggy S. Ruffra,
Supervising Deputy Attorney General; Christopher J. Wei,
Deputy Attorney General, San Francisco, California, for the
respondent-appellee.
OPINION
REINHARDT, Circuit Judge:
Valerie Campbell is a prisoner at Valley State Prison for
Women in Chowchilla, California. The District Court dis-
missed her federal petition for writ of habeas corpus for fail-
ure to file within the one year statute of limitations mandated
by 28 U.S.C. § 2244(d). She appeals and we reverse.
Campbell contends, correctly, that for purposes of the
§ 2244(d) statute of limitations she was entitled to the benefit
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of the mailbox rule when determining the filing dates of her
state and federal habeas petitions, all of which were filed pro
se. The District Court, apparently inadvertently, failed to
accord her that benefit.
The District Court, however, was correct with regard to a
different issue, which the State challenges on appeal. The
Alameda County Superior Court determined that all 23 claims
in Campbell’s second habeas petition were untimely under
state law. Campbell then filed the same petition with the Cali-
fornia Court of Appeal, which determined that one of those 23
claims was timely, and in fact could not have been untimely
under state law, because it was a claim of a type “not subject
to the bar of untimeliness.” The State contends that Camp-
bell’s second state habeas petition was not “properly filed”
with the Superior Court for purposes of § 2244(d) tolling
because of the Superior Court’s determination that all the
claims therein were untimely, notwithstanding that, as the
Court of Appeal explained, the Superior Court was incorrect
as to the timeliness of one of the claims. The State relies on
California’s unique system of higher court review of lower
court decisions in habeas cases, which requires a petitioner
seeking such review to file a new petition with a higher court
rather than an appeal. We agree with the District Court that
the determination of the higher court — in this case, the Court
of Appeal — is effectively a review of the lower court’s time-
liness determination, and if the higher court determines that
the claim is timely, it is “[ ]timely under state law,” see Pace
v. DiGuglielmo, 544 U.S. 408, 414 (2005), for its entire pen-
dency in state court.
Additionally, in response to another contention raised by
the State, we reaffirm that any properly filed application for
state collateral review tolls the § 2244(d) statute of limitations
as to any claims relating to the pertinent judgment, whether
or not such claims are contained in the state application. See
Tillema v. Long, 253 F.3d 494, 499-500, 502 (9th Cir. 2001).
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I
In 2001, Valerie Campbell was convicted of one count of
first degree murder and two counts of premeditated murder in
Alameda County Superior Court and sentenced to twenty five
years to life. The Court of Appeal affirmed her conviction on
February 25, 2003, and on June 11, 2003, the California
Supreme Court denied her review of that decision.
In a letter dated June 1, 2003, Campbell wrote the Alameda
County Superior Court requesting relief from her prison sen-
tence. On September 12, 2003, the Superior Court filed the
letter and issued an order construing it as a pro se habeas peti-
tion and denying the petition for failing to state a prima facie
case for relief. On September 18, 2003, Campbell mailed to
the Superior Court a document that she styled a habeas peti-
tion (as opposed to a letter), which the court filed and denied
on September 24, 2003.
On October 20, 2003, Campbell filed a pro se habeas peti-
tion in the California Court of Appeal. The record does not
contain the date of mailing, but in light of the other facts in
the record, its omission is harmless. On October 24, 2003, the
California Court of Appeal denied Campbell’s habeas petition
in a one sentence opinion.
On September 11, 2004, Campbell mailed the Alameda
County Superior Court a second pro se habeas petition. The
Superior Court filed that petition on September 21, 2004 and
denied it on October 26, 2004, finding that all of the claims
therein were untimely.
On December 29, 2004, Campbell mailed this second pro
se habeas petition to the California Court of Appeal. That
court filed it on January 3, 2005, and on January 7, 2005,
denied 22 of the 23 claims in Campbell’s second petition as
untimely. It held that the last claim was timely, although it
denied that claim on the merits. A petition to the California
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Supreme Court, dated February 4, 2005, and marked as filed
on February 28, 2005, was denied on February 8, 2006, with-
out opinion.
Campbell next filed a habeas petition in the United States
District Court for the Northern District of California. This
petition, like her state habeas petitions, was filed pro se. It
was dated March 16, 2006 and post-marked March 17, 2006;
however, the District Court did not stamp it as filed until
March 28, 2006. On July 9, 2007, the District Court dismissed
Campbell’s habeas petition as untimely. Campbell timely
appealed to this court.
II
Campbell filed her federal habeas petition in 2006; accord-
ingly, her claim is governed by AEDPA. We review de novo
a “district court’s dismissal of [a] federal habeas petition for
failure to comply with the one-year statute of limitations of
the Antiterrorism and Effective Death Penalty Act.” Chaffer
v. Prosper, 592 F.3d 1046, 1048 (9th Cir. 2010).
[1] 28 U.S.C. § 2244(d) affords a state prisoner one year
from the end of the direct review process in state court to
apply in federal court for a writ of habeas corpus, but tolls the
statute of limitations during the pendency of any properly
filed state court application for collateral review. See 28
U.S.C. § 2244(d)(1), (2). The District Court found that Camp-
bell’s first habeas petition to the Superior Court and the Cali-
fornia Court of Appeal tolled the one-year statute of
limitations, and that Campbell’s second habeas petition to the
Superior Court, the Court of Appeal, and the California
Supreme Court also tolled that statute. Nonetheless, the court
found that, taking the tolling into account, Campbell had until
only March 14, 2006 to file her petition, and that her petition,
which the court filed on March 28, 2006, was untimely.
[2] The District Court failed, however, to give Campbell
the benefit of the mailbox rule with regard to either her state
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petitions or her federal petitions. Under the mailbox rule, a
prisoner’s pro se habeas petition is “deemed filed when he
hands it over to prison authorities for mailing to the relevant
court.” Huizar v. Carey, 273 F.3d 1220, 1222 (9th Cir. 2001);
Houston v. Lack, 487 U.S. 266, 276 (1988). The mailbox rule
applies to federal and state petitions alike. See Stillman v.
LaMarque, 319 F.3d 1199, 1201 (9th. Cir. 2003); Smith v.
Ratelle, 323 F.3d 813, 816 n.2 (9th Cir. 2003).
[3] Campbell filed all of her habeas petitions and appeals
pro se, except for this appeal. Accordingly, she was entitled
to the benefit of the mailbox rule when the District Court was
calculating her filing dates for purposes of AEDPA tolling.
There are two instances in which the District Court improp-
erly applied the dates that Campbell’s petitions were filed by
courts rather than the dates on which Campbell mailed the
petitions; applying the proper dates, it is clear that Campbell
filed her federal habeas petition within § 2244(d)’s one year
statute of limitations. The first error affected the court’s deter-
mination of the date by which the federal habeas petition had
to be filed, and the second the determination of the date on
which it was filed.
[4] First, the District Court calculated the tolling of Camp-
bell’s second habeas petition from the date of its filing in Ala-
meda Superior Court, September 21, 2004, rather than from
the date of its mailing, September 11, 2004. Because it failed
to give Campbell the benefit of the mailbox rule, the District
Court calculated that her deadline under § 2244(d) for filing
a federal habeas petition was March 14, 2006. When ten days
is added to this date to account for the ten days that Campbell
lost when the District Court made this initial error, the proper
statutory deadline for filing her federal habeas petition
becomes March 24, 2006.1
1Campbell’s first state habeas petition, filed before the end of her direct
review process, was rejected by the California Court of Appeal on October
24, 2003. The § 2244(d) statute of limitations began running the next day,
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Second, the District Court treated Campbell’s federal
habeas petition as having been filed on March 28, 2006, the
date on which it was actually filed by the court, instead of
March 17, 2006, the date that the petition was postmarked,
and therefore constructively filed.2 Under the mailbox rule,
the petition was filed seven days before the March 24, 2006
deadline, instead of four days afterwards.
[5] In sum, under § 2244(d), Campbell had until March 24,
2006 to petition the federal courts for writ of habeas corpus,
and constructively filed her petition by mailing it on March
17, 2006, a week before her deadline. Thus it was timely.
III
The State conceded at oral argument that in light of the
mailbox rule, Campbell’s federal petition was timely for pur-
poses of § 2244(d) if her state habeas petitions were properly
filed. It makes two contentions, however, concerning Camp-
bell’s second state habeas petition.3 Each requires discussion;
both, however, are without merit.
First, the State contends that the habeas petition that Camp-
bell filed in Superior Court in September 2004 should not toll
October 25, 2003. She had 365 days from that date to file her federal
habeas petition. Her second state habeas petition, filed in Superior Court
on September 11, 2004 stopped the clock at 321 days, leaving her 44 days
to file. That petition was finally rejected by the California Supreme Court
on February 8, 2006, at which point the clock restarted, giving her until
March 24, 2006 to mail her federal petition.
2Campbell signed a proof of service dated March 16, 2006, averring that
she had mailed the petition that day, but the petition was not postmarked
until the next day, March 17, 2006. On the facts of this case, we need not
determine whether her petition is more properly dated from the proof of
service or from the postmark.
3All references hereinafter to Campbell’s state habeas petitions are to
the second set.
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the statute of limitations, because that court determined that
all of the claims therein were untimely. The “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.” 28 U.S.C. § 2244(d)(2).
Tolling, however, is not appropriate for a petition that is
untimely under state law, because such a petition is consid-
ered “neither ‘properly filed’ nor ‘pending.’ ” Thorson v.
Palmer, 479 F.3d 643, 645 (9th Cir. 2007); see also Pace, 544
U.S. at 413-14. According to the State, the Superior Court’s
finding that all of the claims in Campbell’s petition were
untimely ends the matter: all the claims in the petition were
untimely, and therefore the petition was not properly filed and
did not toll the statute of limitations. Disagreeing, the District
Court included for purposes of tolling the 109 days that
elapsed between the time the petition was filed with the Supe-
rior Court and the time it was filed with the Court of Appeal
(September 11, 2004 – December 29, 2004). Were the State
correct on this point, Campbell’s federal petition would have
fallen outside the § 2244(d) statute of limitations.
The matter is not as easily concluded as the state suggests.
The California Court of Appeal held that one of the twenty
three claims in Campbell’s petition was not of the type that
is subject to the bar of untimeliness. The State contends that
the Court of Appeal’s holding is immaterial with regard to
whether that claim was timely filed in Superior Court. The
State relies on California’s atypical system of habeas review,
within which there is no formally denominated appeal of a
lower court’s decision. See Carey v. Saffold, 536 U.S. 214,
221 (2002). Instead, each of the California courts has original
jurisdiction over habeas petitions, and a petitioner, like Camp-
bell, faced with an unfavorable result in Superior Court must
file a new “original” petition with the Court of Appeal. Id. at
221-22; Evans v. Chavis, 546 U.S. 189, 192-93 (2006).
Because in formal terms the Court of Appeal had before it a
new original petition and not an appeal of the Superior
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Court’s denial of Campbell’s petition in that court, the State
contends that the Court of Appeal did not review the Superior
Court’s decision, but rather came to its own, separate decision
about the same issue; accordingly, the State asserts that the
Court of Appeal’s determination that one claim was timely
under state law does not render that claim timely for the
period that it was pending before the Superior Court or the
time before it was filed with the Court of Appeal.
[6] The State’s contention is erroneous. The United States
Supreme Court has determined that California’s “special sys-
tem governing appeals” of habeas petitions is “sufficiently
analogous to appellate review systems in other States” that the
time between the unfavorable decision on the “original” peti-
tion to the lower court and the filing of a new “original” peti-
tion with identical content in the Court of Appeal tolls the
AEDPA statute of limitations, just as in another state the stat-
ute would be tolled during the denial of a habeas petition by
a lower court and the filing of an appeal of that denial in a
higher court. See Chavis, 546 U.S. at 192-93; Saffold, 536
U.S. at 222-23. This is because “a [California] prisoner who
files th[e] same petition in a higher, reviewing court will find
that he can obtain the basic appellate review that he seeks,
even though it is dubbed an ‘original’ petition.” See Saffold,
536 U.S. at 221-22. We have, similarly, treated California
Court of Appeal and Supreme Court decisions with regard to
a habeas petition as reviewing the decision of the lower court
as to that petition. See, e.g., Bonner v. Carey, 425 F.3d 1145,
1148 n.13 (9th. Cir. 2005). There is no question that if the
Superior Court had denied a petitioner relief on a substantive
ground and then the Court of Appeal determined that the peti-
tioner was in fact entitled to relief on that ground, the Court
of Appeal’s decision would prevail. We see no reason why
the timeliness of the petition should be treated differently —
why it should be viewed as a matter unreviewable by higher
courts within the California system. A lower state court is no
less likely — or more likely — to err with regard to the time-
liness of a claim than with regard to its substance. Moreover,
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the relevant question under § 2244(d) is whether the petition
was “untimely under state law,” Pace, 544 U.S. at 413-14, not
whether the particular state court in front of which the petition
was pending determined it to be timely. On questions of state
law, the Court of Appeal’s determination prevails over that of
the Superior Court.
[7] Here, the Court of Appeal determined that one claim in
Campbell’s petition was timely — that it was a claim “not
subject to the bar of untimeliness” — under state law. See In
re Campbell, No. A108779, slip op. at 1 (Cal. Ct. App., 1st
App. Div., Jan. 7, 2005). The earlier incorrect determination
by the Superior Court that the claim was untimely is thus of
no force or effect. Under California’s unique system of collat-
eral review, as in any ordinary system of appellate review, if
the highest court to render a decision determines that the
claim is timely, then that claim was timely when it was before
the lower court. The one timely claim in Campbell’s habeas
petition was thus timely when it was mailed to the Superior
Court.
[8] Second, the State contends that even if one claim in
Campbell’s petition was timely when the petition was mailed
to the Superior Court, the statute of limitations was tolled
solely with regard to that claim. According to the State, then,
that is the only claim that Campbell may pursue in her federal
habeas petition. Whether AEDPA’s one year statute of limita-
tions is tolled as to a petitioner’s entire petition or only as to
those individual claims deemed timely by the state court is a
matter settled by this court’s decisions. In Tillema, we held
that a “Motion to Vacate Illegal Sentence” made in state court
tolled the AEDPA statute of limitations for purpose of a fed-
eral habeas petition that challenged petitioner’s conviction
and sentence, despite the fact that the motion included no
claims that the petitioner raised in his subsequent federal
habeas petition. See Tillema, 253 F.3d at 499. We explained
that § 2244(d)(2) “specifies that the period of limitation is
tolled while ‘a properly filed application for State post-
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conviction or other collateral review with respect to the perti-
nent judgment or claim is pending,’ ” and that to give mean-
ing to Congress’s use of the word “judgment,” any application
for relief from a conviction or sentence that is properly filed
in state court will toll the statute, whether or not it includes
any claim present in the federal petition.4 Id. at 499-500
(emphasis in original) (quoting 28 U.S.C. § 2244(d)(2)); see
also id. at 502; Sweger v. Chesney, 294 F.3d 506, 516-17 (3d
Cir. 2002); Carter v. Litscher, 275 F.3d 663, 665 (7th Cir.
2001); but see Austin v. Mitchell, 200 F.3d 391, 395 (6th Cir.
1999). Given that a state court application need not contain
the claims in the federal petition in order for that application
to toll the statute of limitations as to those claims, it is obvi-
ous that the statute is not tolled only as to the individual
claims within that state court application. Rather, the statute
is tolled as to all claims by any timely filed application in
state court challenging the conviction or otherwise seeking
post-conviction relief. Accordingly, the one timely claim in
Campbell’s state habeas petition was sufficient to toll the
AEDPA statute of limitations with regard to any and all
claims in her federal petition.5
IV
For the reasons stated above, we reverse the dismissal of
Campbell’s petition for habeas corpus and remand to the Dis-
trict Court to consider it on its merits.
REVERSED and REMANDED.
4As we explained in Tillema, this interpretation does not render the
word “claim” surplusage. Valid habeas claims do not always challenge a
judgment: “[f]or example, a claim that death row inmate is incompetent
to be executed does not challenge the validity of the judgment.” See Til-
lema, 253 F.3d at 500 n. 7.
5Because we conclude that the petition was timely, we need not reach
petitioner’s equitable tolling argument.
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