United States v. 2006-05-08 | 01-56367 | GASTON VPALMER | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 ANTHONY (TONY) GASTON, No. 01-56367
Petitioner-Appellant, D.C. No.
v. CV-00-06612-
NM(Mc)ANNA RAMIREZ PALMER,
Respondent-Appellee. O R D E R  GRANTING
PETITION FOR
REHEARING AND
AMENDING
OPINION

Filed May 8, 2006
Before: Andrew J. Kleinfeld, Kim McLane Wardlaw, and
William A. Fletcher, Circuit Judges.
COUNSEL
Gerson Simon, Los Angeles, California, for the petitioner-
appellant.
Anthony (Tony) Gaston, California Medical Facility, Vaca-
ville, California, for the petitioner-appellant.
Kyle Brodie, Michelle J. Pirozzi, AGCA — Office of the Cal-
ifornia Attorney General, Los Angeles, California, for the
respondent-appellee.
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ORDER
In light of the Supreme Court’s opinion in Evans v. Chavis,
126 S. Ct. 846 (2006), we grant the petition for panel rehear-
ing.
In Gaston v. Palmer, 417 F.3d 1030 (9th Cir. 2005), we
held that habeas petitioner Anthony Gaston had timely filed
in federal district court. In so holding, we concluded that he
was entitled to “gap” or “interval” tolling for the periods
between his applications for habeas corpus in state court, and
that he therefore filed within the one-year statute of limita-
tions of the Antiterrorism and Effective Death Penalty Act
(“AEDPA”) (2000). 28 U.S.C. § 2244(d)(1). The gaps
between Gaston’s relevant filings in state court were as fol-
lows:
(1) Gaston’s first application for habeas corpus was filed
in the California Court of Appeal. That application was
denied on February 27, 1996. AEDPA’s effective date is
April 24, 1996. Absent some kind of tolling, the one-year stat-
ute of limitations began running on that date. Gaston’s second
application was filed in Superior Court on June 9, 1997. The
gap between the denial of his first application and the filing
of his second was about 15 months.
(2) Gaston’s second application was denied by the Supe-
rior Court on July 17, 1997. Gaston then filed a third applica-
tion for habeas corpus in the California Supreme Court raising
unrelated state-law claims; because this application was unre-
lated to his applications raising federal claims, we disregard
it for purposes of tolling under AEDPA. Gaston’s fourth
application was filed in Superior Court on January 22, 1999.
The gap between the denial of his second application and the
filing of his fourth was about 18 months.
(3) Gaston’s fourth application was denied by the Supe-
rior Court on the same day it was filed, January 22, 1999. His
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fifth application was filed in the Court of Appeal on February
8, 1999. The gap between the denial of his fourth application
and the filing of his fifth was a little over two weeks.
(4) Gaston’s fifth application was denied by the Court of
Appeal on April 27, 1999. His sixth application was filed in
the California Supreme Court on February 28, 2000. The gap
between the denial of his fifth application and the filing of his
sixth was about 10 months.
The California Supreme Court denied Gaston’s sixth appli-
cation on June 2, 2000, and he filed his federal petition for
habeas corpus on June 20, 2000.
The Supreme Court in Chavis held that, absent a clear indi-
cation to the contrary by the California legislature or a Cali-
fornia court, an unexplained and unjustified gap between
filings of six months was “unreasonable”:
Six months is far longer than the “short period[s]
of time,” 30 to 60 days, that most States provide for
filing an appeal to the state supreme court. It is far
longer than the 10-day period California gives a los-
ing party to file a notice of appeal in the California
Supreme Court. We have found no authority sug-
gesting, nor found any convincing reason to believe,
that California would consider an unjustified or
unexplained 6-month filing delay “reasonable.” Nor
do we see how an unexplained delay of this magni-
tude could fall within the scope of the federal statu-
tory word “pending” as interpreted in Saffold.
Chavis, 126 S. Ct. at 854 (alteration in original) (citations
omitted).
In our earlier opinion in this case, we held that Gaston’s
asserted disabilities, as well as his claimed lack of access to
legal materials, did not justify equitable tolling or constitute
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an “impediment” to filing under 28 U.S.C. § 2244(d)(1)(B).
Gaston, 417 F.3d at 1034-36. Given the length of the delays
between Gaston’s filings in the California state courts, given
the lack of a clear statement by the California legislature or
the California courts that Gaston’s delays are “reasonable,”
and given the lack of explanation or justification for the
delays, we now hold that Gaston is not entitled to “gap” toll-
ing for the delays described above of 15 months, 18 months,
and 10 months. It is unnecessary for us to decide whether
Gaston’s second, fourth, and sixth applications in state court
were improperly filed within the meaning of Pace v. DiGug-
lielmo, 544 U.S. 408 (2005).
We therefore GRANT the petition for panel rehearing and
revise, in the manner just indicated, our opinion in Gaston v.
Palmer, 417 F.3d 1030 (9th Cir. 2005). As a result of this
revision, we AFFIRM the decision of the district court dis-
missing Gaston’s federal petition for habeas corpus as not
timely filed.
It is so ordered.
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