The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge
Petitioner, a former state prisoner proceeding pro se, has filed this application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
On January 13, 2010, the magistrate judge filed findings and recommendations herein which were served on all parties and which contained notice to all parties that any objections to the findings and recommendations were to be filed within twenty-one days. Respondents have filed objections to the findings and recommendations.
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this court has conducted a de novo review of this case. Having carefully reviewed the entire file, the court finds the findings and recommendations to be supported by the record and by proper analysis.
The magistrate judge found that the petitioner's habeas petition was timely when considering periods of statutory tolling. A one-year limitations period applies to federal habeas corpus petitions, but the limitations period is statutorily tolled for the entire time that properly filed state post-conviction petitions are "pending." 28 U.S.C. § 2254 (d)(2). In California, a properly filed post-conviction application is considered to be "pending" during the intervals between a lower court decision and filing a new petition in a higher court. Carey v. Saffold, 536 U.S. 214, 223 (2002). California has no clear rule governing the time for filing a post-conviction petition; a petition is considered timely if filed within a "reasonable time." Id. at 221.
The United States Supreme Court has held that, in order to determine whether a state petition was "pending" for the purpose of statutory tolling, a federal district court must "determine what the state courts would have held in respect to timeliness." Evans v. Chavis, 546 U.S. 189, 197 (2006). After Chavis was decided, the California Court of Appeal held that as a matter of California law, an unrepresented prisoner's unexplained ten-month delay in filing a habeas petition in the appellate court challenging the denial of his parole was not unreasonable. In re Burdan, 169 Cal.App.4th 18, 31 (Cal. Ct. App. 2008). Citing Burdan, the magistrate judge found that petitioner, a currently unrepresented prisoner challenging a parole decision, was entitled to statutory tolling for the intervals between his state petitions, as the intervals were substantially less than ten months.
Respondents' objections argue that the magistrate judge erred in relying on Burdan and determining that the petition was timely. First, they argue that Burdan does not represent an explication of California law, as Burdan is not a California Supreme Court decision. But when interpreting state law, a federal court is bound by the decision of the highest state court, and "in the absence of such a decision, a federal court must predict how the highest state court would decide the issue using intermediate appellate court decisions...." In re Kirkland, 915 F.2d 1236, 1238 (9th Cir. 1990). Indeed, "'[I]n the absence of convincing evidence that the highest court of the state would decide differently,' " American Triticale, Inc. v. Nytco Services, Inc., 664 F.2d 1136, 1143 (9th Cir.1981) (quoting Stoner v. New York Life Ins. Co., 311 U.S. 464, (1940)), a federal court is obligated to follow the decisions of the state's intermediate courts. See id." In re Kirkland, 915 F.2d at 1238 (emphasis added). Reliance on the state court of appeals' ruling in Burdan is appropriate here.
Respondents also argue that the circumstances under which a federal petition is deemed "pending" for purposes of § 2244(d)(2) is a question of federal law, citing Chavis for the proposition that a sixth-month delay between state court filings is unreasonable. Respondets ignore that Chavis ultimately held that the district court's task was to determine "whether the filing of the request for state-court appellate review... was made within what California would consider a 'reasonable time.'" 546 U.S. at 198. Chavis was decided when there was "no authority suggesting, nor  any convincing reason to believe, that California would consider an unjustified or unexplained 6-month filing delay 'reasonable.'" Id. at 201. A California appellate court has now addressed the question directly. Burdan has explained that California would, indeed, consider up to a ten-month filing delay reasonable for state habeas petitions filed by unrepresented prisoners challenging parole decisions. While Chavis did state that the Court did not "see how an unexplained delay of [six months] could fall within the scope of the federal statutory word 'pending,'" the Court expressly instructed federal courts to look to state law to determine timeliness issues.*fn1 Id. at 201.
Respondents further argue that the statute of limitations analysis should not vary according to whether a parole decision or a conviction is being challenged, or take into account prejudice to the respondent. While the rule announced in Burdan does create a system whereby some petitioners are allowed more time than others to file their federal petitions, this court's task is not to review and pass judgment on the policies underlying California law, but merely follow Chavis's instructions and determine what California courts would hold with respect to timeliness.
Finally, respondents note that petitioner was represented by counsel when he filed his first and second state habeas petitions, but this does not affect the outcome of this order. Burdan applies to unrepresented prisoners challenging parole decisions. Petitioner was unrepresented when he filed his third state habeas petition challenging his parole decision. Thus, petitioner is entitled to gap tolling between the denial of his second state habeas petition and the filing of his third state habeas petition, as well as tolling for the intervals when his state habeas petitions were actually before the state courts. See, e.g., Culver v. Director of Corrections, 450 F. Supp. 2d 1135, 1140-41 (C.D. Cal. 2006) (denying interval tolling on the basis of timeliness but granting tolling for time state petitions filed after the interval were before state courts). Even without statutory tolling for the period between the denial of his first state habeas petition and the filing of his second, the statute of limitations would only have run for 72 days before he filed his first state petition, 163 days between his first and second state petitions, and 61 days after his last federal petition, for a total of 296 days. Thus, the instant petition would still be timely.
Accordingly, IT IS HEREBY ORDERED that:
1. The findings and recommendations filed January 13, 2010, are adopted in full;
2. Respondents' August 10, 2009 motion to dismiss is denied;
3. Respondents are directed to file and serve an answer, and not a motion, responding to the application within 60 days from the date of this order. See Rule 4, Fed. R. Governing § 2254 Cases. The answer shall be accompanied by any and all transcripts or other documents relevant to the determination of the issues ...