Appeal from the United States District Court for the Central District of California Audrey B. Collins, Chief District Judge, Presiding D.C. No. 2:07-cv-04335- ABC-FFM
The opinion of the court was delivered by: M. Smith, Circuit Judge:
Argued and Submitted April 11, 2011-Pasadena, California
Before: Dorothy W. Nelson, Jay S. Bybee, and Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Milan D. Smith, Jr.
Petitioner-Appellant Enrique Trigueros appeals the district court's dismissal of his habeas petition as untimely, and not subject to statutory tolling. Trigueros's petition challenges his jury conviction in California state court for murder and attempted murder, for which he was sentenced to multiple consecutive terms of twenty-five years to life, and life. He filed his habeas petition in the California Superior Court in October 2005, approximately two-and-a-half years after his claims of ineffective assistance of counsel at trial were known to him and approximately eleven months after his conviction became final. The Superior Court determined that his petition was untimely, and the Court of Appeal summarily denied his petition on review. On review, the California Supreme Court requested informal briefing and subsequently denied Trigueros's petition. The federal district court, concluding that the last reasoned decision was that of the Superior Court, ruled that Trigueros's federal petition, filed in July 2007, was not statutorily tolled, and therefore was untimely under the Antiterrorism and Effective Death Penalty Act of 1996's (AEDPA) one-year statute of limitations. We reverse and remand, holding that the California Supreme Court's request for informal briefing from the State of California (State) on Trigueros's habeas petition led to the California Supreme Court making a finding of timeliness, and deciding Trigueros's habeas petition on the merits.
FACTS AND PRIOR PROCEEDINGS
On December 13, 2002, a California jury convicted Trigueros and a co-defendant of murdering Humberto Hernandez, and of the attempted willful, deliberate, and premeditated murders of three others. The trial court sentenced Trigueros to fifty years to life for murder, and a life sentence with the possibility of parole for each of the three attempted murder convictions.
Trigueros gave timely notice of the direct appeal of his conviction on April 2, 2003, arguing ineffective assistance of counsel because trial counsel allegedly did not appropriately object to or retain an expert to dispute dog-scent evidence. The Court of Appeal affirmed the trial court's judgment, and on August 8, 2004, the California Supreme Court denied Trigueros's petition for review. Trigueros did not appeal to the United States Supreme Court.
On October 18, 2005, Trigueros filed a habeas petition in the Los Angeles County Superior Court. The Superior Court denied the petition on November 29, 2005. In relevant part, the court stated: "Petition[er] fails to justify a delay of 21/2 years between his conviction and the filing of the petition for habeas corpus. (In re Clark (1993) 5 Cal. 4th 750, 765 & fn5)." The court's order also addressed and denied Trigueros's petition on the merits.
Trigueros filed a habeas petition with the Court of Appeal on February 2, 2006. On February 21, 2006, the Court of Appeal handed down a brief order stating: "The petition for writ of habeas corpus is denied." On April 21, 2006, Trigueros filed his habeas petition with the California Supreme Court. On January 8, 2007, the California Supreme Court requested "an informal response on the merits" from the State. The State filed an informal response, arguing in part that Trigueros's claims were procedurally barred on timeliness grounds. On June 13, 2007, the California Supreme Court denied Trigueros's petition, stating: "The petition for writ of habeas corpus is denied."
On July 3, 2007, Trigueros, proceeding pro se, filed a federal habeas petition in the Central District of California. The government moved to dismiss the petition as untimely, and Trigueros filed a "traverse" in response. On August 5, 2008, the district court adopted the Magistrate Judge's Report and Recommendation, finding that Trigueros failed to satisfy AEDPA's one-year statute of limitations because the Superior Court had denied his October 2005 habeas petition as untimely under Clark. The Magistrate Judge found that the 2005 petition was improperly filed in California state court, and did not statutorily ...