United States v. 2012-04-18 | 08-17324 | TERRELL CROSS V. D.K. SISTO | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 TERRELL CROSS, No. 08-17324
Petitioner-Appellant, D.C. No.
v. 3:07-cv-03941-  WHAD.K. SISTO, Warden,
Respondent-Appellee. OPINION

Appeal from the United States District Court
for the Northern District of California
William Alsup, District Judge, Presiding
Argued and Submitted
August 8, 2011—San Francisco, California
Filed April 18, 2012
Before: Diarmuid F. O’Scannlain, Susan P. Graber, and
Carlos T. Bea, Circuit Judges.
Opinion by Judge Bea
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COUNSEL
Mary E. Pougiales, Novato, California, for the petitioner-
appellant.
Edmund G. Brown, Jr., Attorney General of California, San
Francisco, California. Dane R. Gillette, Chief Assistant Attor-
ney General, San Francisco, California, Gerald A. Engler,
Senior Assistant Attorney General, San Francisco, California,
Peggy S. Ruffra, Supervising Deputy Attorney General, San
Francisco, California, Dorian Jung, Deputy Attorney General,
San Francisco, California, for the respondent-appellee.
OPINION
BEA, Circuit Judge:
California prisoner Terrell Cross appeals the district court’s
denial of his petition for a writ of habeas corpus, claiming that
the district court incorrectly interpreted an earlier ruling by
the California Supreme Court on one of Cross’s state habeas
petitions. The district court read that ruling as denying Cross’s
state court relief because Cross’s petition in state court had
been untimely filed. The district court therefore denied
Cross’s federal petition on the ground that it was barred by
the one-year statute of limitations under 28 U.S.C.
§ 2244(d)(1)(A), which tolls the statute of limitations during
the pendency of a state court petition, but only if that state
petition is properly and timely filed. This case requires us to
determine whether, when the California Supreme Court
denies a habeas petition with citations to Ex parte Swain, 209
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P.2d 793, 796 (Cal. 1949), and People v. Duvall, 886 P.2d
1252, 1258 (Cal. 1995), the denial is necessarily based on
untimeliness.
We agree with Cross that the answer is no and that the dis-
trict court did not correctly apply California law in determin-
ing that the California Supreme Court’s denial of Cross’s
petition with citation to Swain and Duvall meant that Cross’s
petition before the California Supreme Court was untimely.
Because the federal statute of limitations is tolled during the
pendency of timely filed state petitions, Cross’s federal peti-
tion was therefore timely, and we reverse and remand to the
district court to consider the petition on the merits.
I. Facts and Procedural History
In 2003, Terrell Cross was convicted in a California trial
court of murder in the second degree and other associated
crimes. Cross was sentenced to 54 years to life in prison.
Cross unsuccessfully appealed to the California Court of
Appeal and the California Supreme Court. The California
Supreme Court denied Cross’s petition for review on January
12, 2005.
Cross’s direct appeal became final 90 days later, on April
12, 2005, when Cross’s time to petition the United States
Supreme Court for a writ of certiorari expired. Cross claims
that his lawyer did not inform him of the California Supreme
Court’s denial of his petition for review. While Cross lists
April 12, 2005, as the date of the final California decision in
his habeas application to the California superior court, he
claims that it was not until July 2005 that he became aware
that his direct appeal was final.
On July 27, 2005, Cross filed a petition for habeas corpus
with the Alameda County Superior Court, claiming ineffec-
tive assistance of trial counsel and ineffective assistance of
appellate counsel. On August 8, 2005, the superior court
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denied Cross’s petition for failure to state a prima facie case
for relief.
On September 13, 2005, Cross filed a petition for habeas
corpus with the California Court of Appeal, First Appellate
District, citing the same grounds for relief as the petition in
superior court. On September 14, 2005, the California Court
of Appeal denied Cross’s petition without comment or cita-
tion.
Cross filed a petition for habeas corpus with the California
Supreme Court on September 29, 2005. On July 19, 2006, the
California Supreme Court denied Cross’s petition without
comment but with citation to Swain, 209 P.2d at 796, and
Duvall, 886 P.2d at 1258.
Cross began a second round of state habeas petitions when
he filed a new petition in the California Court of Appeal on
January 23, 2007. The California Court of Appeal denied the
petition on January 30, 2007 “without prejudice to petitioner
seeking relief in the first instance in the County of Alameda
Superior Court.”
Cross proceeded to file his habeas petition in Alameda
Superior Court on March 6, 2007. This petition was denied on
March 7, 2007, for failure to state a prima facie case for relief.
Cross filed his next habeas petition in the California Court
of Appeal on April 2, 2007, and his petition was denied with-
out comment or citation on April 18, 2007. Cross filed a
habeas petition in the California Supreme Court on April 30,
2007. The California Supreme Court denied Cross’s petition
without citation or comment on June 20, 2007. The habeas
petitions in Cross’s second round of petitions cited different
grounds for relief than his initial round of habeas petitions.1
1The second round of habeas petitions asserted: (1) the trial court erred
in excluding evidence about a 9 mm handgun; (2) the Court of Appeal
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Cross filed a petition for habeas corpus in federal district
court on July 31, 2007. Cross contends that his federal habeas
petition was ready to file on July 2, 2007, but that it was
delayed because it took prison officials three weeks to file his
in forma pauperis application. The district court denied
Cross’s habeas petition on the ground that it was untimely.
The district court reasoned that because the California
Supreme Court cited Swain when dismissing Cross’s petition,
that Court had dismissed his state habeas petition solely on
grounds it was untimely filed. An untimely state habeas peti-
tion is not considered “properly filed” and thus does not toll
the federal statute of limitations. Allen v. Siebert, 552 U.S. 3,
5 (2007) (per curiam). This court granted a certificate of
appealability on the issues of (1) whether Cross’s state peti-
tions were “properly filed” for the purposes of statutory tolling2
and (2) whether Cross is entitled to equitable tolling with
respect to the delay in notifying him when his direct appeal
became final.
II. Standard of Review
This court reviews de novo the district court’s dismissal of
a petition for habeas corpus filed pursuant to 28 U.S.C.
§ 2254. Ramirez v. Yates, 571 F.3d 993, 997 (9th Cir. 2009).
This court reviews the underlying findings of fact for clear
error. Id.
erred in denying a motion to dismiss two counts of assault with a deadly
weapon; (3) Cross’s right to a trial by an impartial jury under the Fifth,
Sixth, and Fourteenth Amendments was violated; (4) ineffective assistance
of trial counsel for failure to investigate and call witnesses; (5) prosecu-
torial misconduct that violated Cross’s right to due process; and (6) inef-
fective assistance of appellate counsel that deprived Cross of his Sixth
Amendment rights. These claims are largely identical to the first six
claims presented in Cross’s federal habeas petition.
2“Statutory tolling” refers to the suspension of the running of a statute
of limitations as provided by statute—in this case, 28 U.S.C. § 2244(d)(2).
See Allen, 552 U.S. at 5; see also Black’s Law Dictionary (9th ed. 2009)
(entry on “tolling statute”).
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III. Analysis
A. The statute of limitations was tolled while Cross’s
first round state habeas petition to the California
Supreme Court was pending.
[1] Under the Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA), there is a one-year statute of limita-
tions for the filing of federal habeas corpus petitions. The stat-
ute’s time runs from the date on which the state judgment of
conviction becomes final. 28 U.S.C. § 2244(d)(1)(A).3 The
statute of limitations is tolled so long as a properly filed appli-
cation for habeas corpus is pending in state court. 28 U.S.C.
§ 2244(d)(2).4 “[A]n application is ‘properly filed’ when its
delivery and acceptance are in compliance with the applicable
[state] laws and rules governing filings.” Artuz v. Bennett, 531
U.S. 4, 8 (2000) (emphasis omitted). Whether an application
has been properly filed “is quite separate from . . . whether the
claims contained in the application are meritorious and free
of procedural bar.” Id. at 9.
[2] A state habeas petition is not “properly filed” for pur-
poses of statutory tolling under AEDPA if the state petition
was determined by the state court to be untimely as a matter
328 U.S.C. § 2244(d)(1)(A) states:
A 1-year period of limitation shall apply to an application for a
writ of habeas corpus by a person in custody pursuant to the judg-
ment of a State court. The limitation period shall run from the lat-
est of—
(A) the date on which the judgment became final by the conclu-
sion of direct review or the expiration of the time for seeking
such review . . . .
428 U.S.C. § 2244(d)(2) states:
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.
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of state law. Allen, 552 U.S. at 5-6 (citing Pace v. DiGugl-
ielmo, 544 U.S. 408, 414, 417 (2005)). Hence, untimely state
habeas corpus petitions do not toll AEDPA’s statute of limita-
tions. Evans v. Chavis, 546 U.S. 189, 197 (2006). California
applies a reasonableness standard to determine whether state
habeas petitions are timely filed. Id. at 197 (citing Carey v.
Saffold, 536 U.S. 214, 221 (2002)). The United States
Supreme Court has held that California’s reasonableness stan-
dard is commensurate with the limitations of other states,
which are 30 or 45 days. Carey, 536 U.S. at 222. In the
absence of a clear indication from the California Supreme
Court about the timeliness of a petition, this court must deter-
mine whether the delay between petitions is reasonable.
Evans, 546 U.S. at 198.
[3] Cross’s first round state habeas petition to the Califor-
nia Supreme Court was denied with citations to Swain, 209
P.2d at 796, and Duvall, 886 P.2d at 1258. The district court
interpreted the California Supreme Court’s citations to Swain
and Duvall to mean that Cross’s habeas petition was untimely.
Swain requires that a habeas petitioner “allege with particular-
ity the facts upon which he would have a final judgment over-
turned and that he fully disclose his reasons for delaying in
the presentation of those facts.” 209 P.2d at 796. The habeas
petition in Swain was denied without prejudice. Id. Duvall
also addresses the requirement that a petitioner plead suffi-
cient facts, reiterating that a habeas petitioner should “state
fully and with particularity the facts on which relief is
sought.” 886 P.2d at 1258.
[4] The district court’s interpretation is contrary to this
court’s interpretation of identical citations to Swain and
Duvall in Gaston v. Palmer, 417 F.3d 1030 (9th Cir. 2005),
as amended by order, 447 F.3d 1165 (9th Cir. 2006). In Gas-
ton, this court held:
In light of its citations to Swain and Duvall, we read
the California Supreme Court’s denial of Gaston’s
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sixth habeas application as, in effect, the grant of a
demurrer, i.e., a holding that Gaston had not pled
facts with sufficient particularity. While Gaston’s
sixth application was thus procedurally deficient
under California law, it was not improperly filed
within the meaning of § 2244(d)(2). There is no indi-
cation that the application was time-barred . . . .
Thus, because Gaston’s sixth state application’s
delivery and acceptance was in compliance with the
applicable laws and rules governing filings, it was
“properly filed” despite being procedurally flawed,
and therefore may properly be used for purposes of
§ 2244(d)(2) tolling.
417 F.3d at 1039 (citations, internal quotation marks, and
alterations omitted). Even before Gaston, this court had deter-
mined that Swain meant merely dismissal without prejudice,
with leave to amend to plead required facts with particularity.
King v. Roe, 340 F.3d 821 (9th Cir. 2003) (per curiam). In
King, this court held that Swain and Duvall were both cases
that “require that one must allege with sufficient particularity
the facts warranting habeas relief and allow amendment to
comply.” Id. at 823. King further explained that a citation to
Swain means denial “without prejudice” to re-plead.5 Id. King
did not find that the California Supreme Court’s citations to
these two cases barred the petitioner’s state habeas claim as
untimely and instead addressed whether the petitioner’s sub-
sequent habeas petitions constituted a new round of state peti-
tions. Id.
The interpretation in King is consistent with the definition
of “properly filed” in Artuz because, while the claims con-
tained in Cross’s habeas petition may be otherwise procedur-
5If the demurrer were granted on grounds of the statute of limitations,
or another time limit to commencement of action, no re-pleading would
be allowed; the demurrer would have been granted “with prejudice.” See
E-Fab, Inc. v. Accountants, Inc. Servs., 64 Cal. Rptr. 3d 9 (Ct. App. 2007).
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ally deficient, the habeas petition itself was properly filed.
“Swain is cited by the California Supreme Court to indicate
that claims have not been alleged with sufficient particularity.
That deficiency, when it exists, can be cured in a renewed
petition.” Kim v. Villalobos, 799 F.2d 1317, 1319 (9th Cir.
1986) (reversing a district court’s dismissal of a habeas peti-
tion for failure to exhaust state remedies; remanding to the
district court). This description is also consistent with the
holding of Swain, in which the court granted the petitioner
leave to amend his habeas application. If the California
Supreme Court had determined the habeas application in
Swain to be untimely or improperly filed, it would not have
granted leave to amend. See E-Fab, 64 Cal. Rptr. 3d 9.
The district court in the present case determined that
because Swain is referred to as an “untimeliness” bar, a cita-
tion to Swain must mean that the habeas petition itself is
untimely. However, the case that the district court cites to
support this contention did not find the habeas petition at
issue to be untimely. See Washington v. Cambra, 208 F.3d
832, 833 (9th Cir. 2000). While Washington referred to Swain
as the “untimeliness” bar, the case analyzed whether the Cali-
fornia Supreme Court’s citations to Swain and Ex parte
Dixon, 264 P.2d 513, 515 (Cal. 1953),6 provided “adequate
and independent” grounds for the California Supreme Court’s
denial of a habeas petition. Washington, 208 F.3d at 834.
Once this court in Washington had determined that Dixon
failed to provide an independent state law basis for denial of
a habeas petition, Washington did not further analyze the
meaning of the California Supreme Court’s citation to Swain.
Id.
[5] Further, the cases that the State contends treat Swain as
an untimeliness bar do not treat a citation to Swain by itself
6Dixon held that “[i]n the absence of special circumstances . . . the writ
will not lie where the claimed errors could have been, but were not, raised
upon a timely appeal from a judgment of conviction.” 264 P.2d at 514.
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as conclusive proof of untimeliness, but instead look to see if
the claims brought in a habeas petition are unduly delayed, if
the habeas petition adequately justifies any delay in raising
these claims, or if there are independent and adequate state
law grounds that bar federal review. See In Re Saunders, 981
P.2d 1038, 1042 (Cal. 1999) (briefly referring to Swain as a
timeliness bar, but ultimately holding a challenge to a death
sentence timely under a different standard); Chaffer v. Pros-
per, 592 F.3d 1046, 1048 (9th Cir. 2010) (per curiam) (hold-
ing that habeas petitions that were delayed more than 100
days and included no justification for the delay were
untimely); La Crosse v. Kernan, 244 F.3d 702, 704-05 (9th
Cir. 2001) (holding that a state court’s citations to Swain and
Dixon did not constitute independent and adequate state law
grounds that could bar federal review of a habeas petition);
Thompson v. Calderon, 122 F.3d 28, 29 (9th Cir. 1997)
(order) (holding that a claim in a habeas petition was substan-
tially delayed without good cause). In none of these cases did
the state court’s citation to Swain by itself mean that a habeas
application was untimely filed. Thus, the State’s assertion that
Swain is an automatic untimeliness bar is inaccurate. Instead,
King, Gaston, and Kim’s interpretations of a citation to Swain
correctly treat it as a grant of a demurrer,7 rendering the
habeas petition procedurally deficient yet properly filed under
California law.
B. Cross’s federal habeas petition is timely when
statutory tolling is applied.
[6] AEDPA’s statute of limitations is tolled while a prop-
erly filed state habeas petition is pending, which is until it has
7We refer to a demurrer that requires more specific facts be pleaded, not
to a demurrer based on the statute of limitations. See Cal. Code Civ. Proc.
§ 430.10(e) (“The party against whom a complaint or cross-complaint has
been filed may object, by demurrer . . . to the pleading on any one or more
of the following grounds . . . [that t]he pleading does not state facts suffi-
cient to constitute a cause of action.”).
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reached a “final resolution” in state court. Carey, 536 U.S. at
220. The denial of a habeas petition by the California
Supreme Court is final upon filing of the decision. Cal. Rule
of Court 8.532; see also Phelps v. Alameida, 569 F.3d 1120,
1125 (9th Cir. 2009) (discussing the rule amendment in 2002
to make the denial of such a petition final on filing).
[7] A petitioner may be entitled to statutory tolling for
more than one separate round of state habeas petitions. Porter
v. Ollison, 620 F.3d 952, 958 (9th Cir. 2010); Smith v. Dun-
can, 297 F.3d 809, 814-15 (9th Cir. 2002), overruled on other
grounds by Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005);
accord Lovasz v. Vaughn, 134 F.3d 146, 148 (3d Cir. 1998);
cf. Saffold, 536 U.S. at 220-22; Welch v. Carey, 350 F.3d
1079, 1083 (9th Cir. 2003) (en banc). Even if a petitioner is
entitled to statutory tolling for more than one round of state
petitions, he still must file his federal petition within the one-
year statute of limitations under AEDPA, excluding the tolled
time.
In addition, statutory tolling applies to “intervals between
a lower court decision and a filing of a new petition in a
higher court . . . .” Carey, 536 U.S. at 223. A petitioner is thus
entitled to statutory tolling “not only for the time that his peti-
tions were actually under consideration, but also for the inter-
vals between filings, while he worked his way up the ladder,”
Biggs, 339 F.3d 1045, 1048 (9th Cir. 2003) (emphasis added)
(citing Carey, 536 U.S. at 223), so long as those filings are
timely, Carey, 536 U.S. at 225. As discussed above, in Cali-
fornia, a filing is timely if filed within a “reasonable” amount
of time, usually within 30 or 45 days. Id. at 222-23.
The statute of limitations is not tolled from the time when
a direct state appeal becomes final to the time when the first
state habeas petition is filed because there is nothing “pend-
ing” during that interval. Nino v. Galaza, 183 F.3d 1003, 1006
(9th Cir. 1999). Petitioners are not entitled to statutory tolling
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between rounds of state habeas petitions. Biggs, 339 F.3d at
1048.
[8] Cross’s federal habeas corpus petition is timely when
statutory tolling is correctly applied to his state habeas corpus
petitions. First, 106 days elapsed between the date the state
conviction became final (April 12, 2005) and the date Cross
filed his first state habeas petition with the Alameda County
Superior Court (July 27, 2005). During Cross’s first round of
habeas petitions, each petition was timely filed because all of
the intervals between Cross’s filings were reasonable under
Carey. Thirty-six days elapsed between the denial of Cross’s
petition in the superior court and the filing of his petition in
the California Court of Appeal, and 15 days elapsed between
the denial of his petition in the California Court of Appeal and
the filing of his petition with the California Supreme Court.
Therefore, Cross was entitled to statutory tolling while his
first round of state habeas petitions was pending, and no time
expired under AEDPA.
[9] Then, 188 days elapsed between the final denial of his
first state habeas “round” (July 19, 2006) and his commence-
ment of his second “round” of state habeas petitions (January
23, 2007). During Cross’s second round of state habeas peti-
tions, each petition was timely as each of the three intervals
between filings was reasonable: those intervals were, respec-
tively, 35 days, 26 days, and 12 days. These petitions were
denied first because Cross filed in the wrong court and then
because Cross failed to state a prima facie claim for relief; no
court stated that the petitions were denied as untimely. There-
fore, Cross’s petitions were “properly filed” and Cross was
entitled to statutory tolling for the remainder of the time when
his second round of state habeas petitions was pending. See
Artuz, 531 U.S. at 8.
After Cross’s second round of habeas petitions was com-
pleted (June 20, 2007), 41 days elapsed before Cross filed his
federal habeas petition in district court (July 31, 2007).
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[10] The periods during which AEDPA’s statute of limita-
tions ran therefore consist of the 106 days between when
Cross’s direct appeal became final and his first state habeas
application was filed, the 188 days between Cross’s two
rounds of state habeas petitions, and the 41 days between the
completion of Cross’s state petitions and the filing of his fed-
eral habeas petition. These intervals add up to a total of 335
days, which is less than the one-year statute of limitations.
Thus, Cross’s federal habeas petition was timely filed.8
IV. Conclusion
For the foregoing reasons, the district court’s judgment is
vacated. We remand Cross’s habeas petition to the district
court and instruct the district court to consider his petition on
the merits.
VACATED AND REMANDED.
8Because we hold that Cross is entitled to statutory tolling during his
two rounds of state habeas petitions, we need not and do not address
whether Cross is entitled to equitable tolling at any point during the pen-
dency of his petitions.
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