Christopher Joseph Maes v. FRANK X. CHAVEZ, Warden

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHRISTOPHER JOSEPH MAES,
Petitioner-Appellant,
v.
FRANK X. CHAVEZ, Warden,
Respondent-Appellee.
No. 13-16523
D.C. No.
2:12-cv-01634-
KJM-DAD
OPINION
Appeal from the United States District Court
for the Eastern District of California
Kimberly J. Mueller, District Judge, Presiding
Argued and Submitted
April 13, 2015—San Francisco, California
Filed July 7, 2015
Before: Alex Kozinski and Susan P. Graber, Circuit
Judges, and Michael A. Ponsor,* Senior District Judge.
Opinion by Judge Ponsor
* The Honorable Michael A. Ponsor, Senior United States District Judge
for the District of Massachusetts, sitting by designation.

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MAES V. CHAVEZ 2
SUMMARY**
Habeas Corpus
The panel affirmed the dismissal as untimely of a habeas
corpus petition brought under 28 U.S.C. § 2254.
The time during which the petitioner’s state-court habeas
petition was pending was not counted against the one year
that he had to file his federal petition. The panel held that the
petitioner was not entitled to additional tolling for the time
during which he could have, but did not, file a further petition
for habeas relief in California state court.
COUNSEL
Faye Arfa (argued), Los Angeles, California, for Petitioner-
Appellant.
Kamala D. Harris, Attorney General; Michael P. Farrell,
Senior Assistant Attorney General; Brian G. Smiley and
Michael A. Canzoneri, Supervising Deputy Attorneys
General; Justin Riley (argued), Deputy Attorney General,
Sacramento, California; for Respondent-Appellee.
** This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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MAES V. CHAVEZ 3
OPINION
PONSOR, District Judge:
After his state court conviction became final on April 12,
2011, Petitioner Christopher Maes had one year to file any
federal habeas corpus petition. 28 U.S.C. § 2244(d). Two
days shy of one year, Maes filed a petition for habeas corpus
in the state superior court. The period during which this
“properly filed” state petition was “pending” was not counted
against the year that Maes had to file his federal petition. Id.
§ 2244(d)(2). This uncounted period ended on May 7, 2012,
when the Superior Court of Shasta County, California, denied
his state habeas petition, leaving Maes two days to file for
federal habeas relief. Because Maes waited until May 15,
2012, to file a federal petition, the district court dismissed it
as untimely. Maes now appeals, arguing that he had at least
sixty days after the denial of his state habeas petition to file
for federal habeas relief. We disagree and affirm the district
court’s decision to dismiss.
I.
The procedural background of this case may be succinctly
summarized. On April 8, 2009, Christopher Maes was
convicted by a jury in Shasta County, California, of failing to
provide notice of a change of address as a registered sex
offender. As a three-time serious felon, Maes was sentenced
to twenty-five years to life in state prison. Cal. Penal Code
§ 1170.12(c)(2)(A).
Maes unsuccessfully sought direct appellate review. On
October 21, 2010, the California Court of Appeal affirmed his
conviction. The California Supreme Court denied his next

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MAES V. CHAVEZ 4
appeal on January 12, 2011. Maes had ninety days to seek
further direct review via a writ of certiorari to the U.S.
Supreme Court. Maes did not take this step, and it is now
undisputed that, for statute of limitations purposes, the direct
appeal of his conviction became final on April 12, 2011.
28 U.S.C. § 2244(d)(1)(A).
Pursuant to the Antiterrorism and Effective Death Penalty
Act of 1996 (“AEDPA”), federal habeas petitions are subject
to a one-year statute of limitations. Id. § 2244(d). This one-
year clock began ticking for Maes on April 13, 2011.
As noted above, on April 10, 2012, two days before the
end of the one-year limitations period, Maes filed a petition
for a writ of habeas corpus with the state superior court. On
May 7, 2012, the Shasta County Superior Court denied this
petition. Under California law, Maes had the right to present
a new state habeas petition to the next level of the California
court system. Maes, however, chose not to file any further
petition in state court. Instead, he decided to file a petition
for habeas corpus in the U.S. District Court for the Eastern
District of California on May 15, 2012.
Respondent moved to dismiss the federal petition as time-
barred. The district court adopted the magistrate judge’s
Report & Recommendation and dismissed the petition,
finding that the statute of limitations had expired. This ruling
is now before us.
II.
We have jurisdiction under 28 U.S.C. §§ 1291 and 2253.
We review de novo a dismissal of a petition for writ of habeas
corpus. Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003).

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MAES V. CHAVEZ 5
Under AEDPA, the one-year statute of limitations begins
to run on the date when the state-court conviction becomes
final. Id. § 2244(d)(1)(A). To accommodate any collateral
state court habeas proceeding, however, the statute provides
that 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.” Id. § 2244(d)(2).
The California habeas process contains a wrinkle that
somewhat complicates the calculation of this uncounted
period. Unlike other states, California does not have a
statutorily mandated deadline by which a petitioner must file
a notice of appeal to a higher state court of a lower court’s
denial of a habeas petition. Instead, each level in the
California judicial system has original jurisdiction. Cal.
Const. art. VI, § 10. To obtain review of an adverse ruling,
a petitioner must file a new petition to each subsequent court
within a reasonable time of the adverse lower court’s
decision. See Carey v. Saffold, 536 U.S. 214, 224 (2002)
(explaining that in California “the only avenue for a prisoner
to challenge the denial of his application in the superior court
is to file a ‘new petition’ in the appellate court”). In light of
this unusual system of collateral review, “AEDPA’s statute
of limitations will be tolled . . . only if the prisoner timely
filed his subsequent petition in a higher state court.” Maxwell
v. Roe, 628 F.3d 486, 495–96 (9th Cir. 2010).
In California, so long as the state prisoner “filed a petition
for appellate review within a ‘reasonable time,’ he could
count as ‘pending’ (and add to the 1-year time limit) the days
between (1) the time the lower state court reached an adverse
decision, and (2) the day he filed a petition in the higher state
court.” Evans v. Chavis, 546 U.S. 189, 193 (2006) (citing

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MAES V. CHAVEZ 6
Saffold, 536 U.S. at 222–23). In adopting this approach, the
Supreme Court reasoned that, with the exception of the
absence of an explicit deadline to file an appeal, California’s
collateral review process was similar to others states’
systems. See Saffold, 536 U.S. at 222 (“The upshot is that
California’s collateral review process functions very much
like that of other States, but for the fact that its timeliness rule
is indeterminate.”). Further, the Court concluded that, for
subsequent petitions brought to higher California courts
within a reasonable time, applying a retroactive tolling period
would promote the principles of AEDPA’s tolling statute:
comity, finality, and federalism. Id.
Maes now seeks to bend this tolling rule backwards. He
points out, correctly, that if he had filed a further petition for
habeas relief in state court within a reasonable time following
the lower state court’s adverse ruling, then that reasonable
period would have been excluded from the year he had to file
for federal habeas relief. He then argues, in essence, that he
is entitled to have this same reasonable period uncounted in
calculating the year available to file for federal habeas
relief—even where he has not filed anything in state court.
The statute does not work that way. Maes chose not to
exhaust his full cycle of potential state law habeas relief. By
filing his federal petition without pursuing further habeas
petitions before the higher California state courts, he
effectively abandoned any effort to obtain a habeas remedy
before the state court. See Welch v. Carey, 350 F.3d 1079,
1083 (9th Cir. 2003) (en banc) (finding that a California
petitioner who did not seek further review of his superior
court petition abandoned his first full round of review and
later embarked on a new round of review with a subsequent
petition filed four years later). The unavoidable fact,

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MAES V. CHAVEZ 7
therefore, is that, at the time Maes sought habeas relief
before the federal court, he simply did not have pending “a
properly filed application for State post-conviction or other
collateral review.” 28 U.S.C. § 2244(d)(2). Under these
circumstances, he is not entitled to statutory tolling. Pace v.
DiGuglielmo, 544 U.S. 408, 417 (2005).
This conclusion flows inevitably from a common sense
construction of the word “pending.” § 2244(d)(2). “[A]n
application is pending as long as the ordinary state collateral
review process is ‘in continuance’—i.e., ‘until the completion
of’ that process.” Saffold, 536 U.S. at 219–20 (quoting
Webster’s Third New International Dictionary 1669 (1993)).
Maes effectively accepted the decision of the state superior
court, bringing an end to any process by which he sought
state habeas relief. Accordingly, his state process was no
longer “in continuance.”
Adopting Maes’s suggestion that he is entitled to a sixty-
day—or perhaps thirty-day, or some other “reasonable”—
period of time to file for federal habeas relief, when no
properly filed state court proceeding is pending not only runs
counter to the plain language of the statute, but it also
disregards the purpose of AEDPA’s tolling provision. The
statute is “designed to protect the principles of comity,
finality, and federalism, by promoting the exhaustion of state
remedies while respecting the interest in the finality of state
court judgments.” Id. at 222 (internal quotation marks
omitted). Recognizing a hypothetical grace period enjoyed
by a would-be federal habeas petitioner while no state court
proceeding is pending does nothing to protect the integrity of
California’s habeas process, because no state process is in
motion to protect.

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MAES V. CHAVEZ 8
To summarize, Maes’s state law conviction became final
on April 12, 2011. His AEDPA clock began to tick the next
day. On April 10, 2012—363 days into the tolling
period—Maes filed his state habeas petition. On May 7,
2012, the California Superior Court denied his petition. From
April 10, 2012, to May 7, 2012, the limitations period for
filing a federal petition was tolled. On May 15, 2012, when
Maes filed his federal petition, he had had no state petition
pending for more than a week. Because those days were
countable, Maes’s federal petition was filed more than 365
days after the one-year period began. He filed too late, and
the district court’s ruling dismissing his petition as untimely
was perfectly correct.1
III.
We cannot take pleasure in a result that deprives Maes of
the opportunity to argue for federal habeas relief because of
his failure to file his petition a few days earlier. Maes was
sentenced to twenty-five years to life in prison based on his
third serious criminal conviction, failure to provide notice of
a change of residence as a registered sex offender. He now
loses any meaningful opportunity for collateral review in the
federal courts because he was unable, proceeding pro se, to
navigate the intersection between California’s convoluted
habeas process and AEDPA. This result is regrettable but
1 Even now, it is possible for Maes to file a petition with the state
appellate court. If that court were to conclude that the petition was filed
within a “reasonable time” under California’s unique standard, Maes may
have an argument for statutory tolling for the time between the superior
court denial and the filing in the state appellate court. We express no
opinion about this scenario, nor do we decide whether, if this scenario
were to come to pass, Maes could seek Rule 60(b) reconsideration of the
denial of his federal petition.

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MAES V. CHAVEZ 9
cannot justify an unsupported expansion of the one-year
limitations period. All boundaries, including statutes of
limitations, inevitably define positions slightly inside or
slightly outside their limits, and Maes’s petition clearly fell
outside.
We have previously noted the difficulties that courts and
litigants confront because of California’s unique system of
habeas review. See, e.g., Velasquez v. Kirkland, 639 F.3d
964, 967 (9th Cir. 2011); Gaston v. Palmer, 447 F.3d 1165,
1167 (9th Cir. 2006). The Supreme Court has done the same.
See Evans, 546 U.S. at 199 (“Alternatively, the California
Legislature might itself decide to impose more determinate
time limits, conforming California law in this respect with the
law of most other States.”). So far California has taken no
steps to simplify its unwieldy habeas process. This creates
work for judges and, more seriously, snares for litigants, as
this case demonstrates.
AFFIRMED.

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