The opinion of the court was delivered by: Dean D. Pregerson United States District Judge
ORDER FINDING PETITION FOR WRIT OF HABEAS CORPUS TIMELY FILED AND REMANDING TO MAGISTRATE JUDGE [Docket No. 10]
Pursuant to 28 U.S.C. § 636, the court has reviewed the Petition for Writ of Habeas Corpus, all the records and files herein, and the Report and Recommendation of the United States Magistrate Judge ("Report"). The court disagrees with the Report denying the Petition with prejudice, finds that Petitioner timely filed his Petition under the mailbox rule, and remands the Petition to the Magistrate Judge for a decision on the merits.
Petitioner Minh T. Tran is serving a twenty-four year prison sentence for two counts of attempted murder and one count of conspiracy to commit assault with a deadly weapon, committed for the benefit of a street gang. Tran appealed his conviction to the California Courts of Appeal, which affirmed the judgment on November 16, 2006. The California Supreme Court then denied Tran's petition for review, on February 28, 2007. (Report at 1-2.)
On May 21, 2007, Tran filed a habeas corpus petition in Los Angeles County Superior Court. The court denied the petition on June 7, 2007. Tran then filed a petition with the California Courts of Appeal on June 20, 2007. The appellate court denied the petition on September 25, 2007. (Id. at 2.) Tran contends that he then filed a petition with the California Supreme Court on October 9, 2007, by delivering the petition to prison authorities for mailing. Because he had not received any response, Tran sent a letter to the California Supreme Court on August 24, 2009, inquiring about the status of his alleged filing. On August 27, 2009, the Court's clerk responded, informing Tran that there was no record of any such filing. (Id. at 7.) According to Tran, he therefore resubmitted the petition on October 16, 2009. The California Supreme Court denied Tran's petition on April 14, 2010. (Id. at 2.)
Tran then filed this Petition on September 4, 2010. On December 15, 2010, Respondent filed a motion to dismiss, arguing that the petition is untimely. Tran filed an opposition on January 21, 2011. (Id. at 1-2.)
This Petition is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Under AEDPA, a prisoner in state custody typically must file a federal habeas petition within one year of the conclusion of direct review of the criminal conviction. Doe v. Busby, --- F.3d ----, 2011 WL 5027506, at *5 (9th Cir. Oct. 24, 2011) (citing 28 U.S.C. § 2244(d)). The one-year period is tolled, however, "during the time in which a 'properly filed' state habeas petition is pending." Trigueros v. Adams, --- F.3d ----, 1247, 2011 WL 4060503, at *3 (9th Cir. Sept. 14, 2011) (quoting 28 U.S.C. § 2244(d)(2)). Thus, in California, the statute of limitation is generally "tolled from the time the first state habeas petition is filed until the California Supreme Court rejects the petitioner's final collateral challenge." Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999) (footnote omitted). A state habeas petition that is untimely under state law, however, "is not 'properly filed' and does not trigger statutory tolling under AEDPA." Trigueros, 2011 WL 4060503, at *4. "Under California law, a habeas petition is timely if it is filed within a 'reasonable time.'" Maxwell v. Roe, 628 F.3d 486, 496 (9th Cir. 2010) (quoting Evans v. Chavis, 546 U.S. 189, 198 (2006)); see also Carey v. Saffold, 536 U.S. 214, 222 (2002) (explaining that "California applies a general 'reasonableness' standard" to determine timeliness). Without clear direction from the California courts, a federal court "must itself examine the delay in each case and determine what the state courts would have held in respect to timeliness." Evans, 546 U.S. at 198.
Here, Tran's criminal conviction became final on May 29, 2007, ninety days after the California Supreme Court denied his petition for direct review. See Harris v. Carter, 515 F.3d 1051, 1053 n.1 (9th Cir. 2008). Tran timely filed his first state habeas corpus petition before then, on May 21, 2007. Tran also timely filed with the California Courts of Appeal, one month after the Superior Court denied his first petition. The parties therefore agree that Tran is entitled to tolling through September 25, 2007, when the appellate court denied his second petition.
Thus, the remaining and likely dispositive timeliness question is whether Tran "filed" his habeas petition with the California Supreme Court on October 9, 2007, as he contends, by delivering the petition to prison authorities for mailing, even though the Court never filed it. If so, Tran's federal petition is timely: Tran would have (1) timely filed the California Supreme Court petition two weeks after the appellate court denial on September 25, 2007, (2) received the California Supreme Court's denial on April 14, 2010, and (3) filed this Petition less than five months later -well within AEDPA's one-year statute of limitations.
The Ninth Circuit addressed a nearly identical situation in Huizar v. Carey, 273 F.3d 1220 (9th Cir. 2001). There, the court held that a prisoner gets the benefit of the "prison mailbox rule" - deeming a habeas petition filed "when the prisoner hands it over to prison authorities for mailing" - even if the relevant court never received or filed the petition. Id. at 1223 (citing Houston v. Lack, 487 U.S. 266 (1988)). The court explained, however, that the prisoner must also be reasonably diligent in following up on the petition, to get the benefit of the mailbox rule. See id.
As mentioned, the California Supreme Court never filed Tran's alleged October 9, 2007 petition. Tran, however, has provided his prison mail log for May to October 2007, showing that he did in fact mail something to the "Clerk of the Court" and the "Attorney General's Office" on October 9, 2007. (Pet. Ex. B.) As Huizar explained, "the prison's log of outgoing mail provides strong evidence of the date [a prisoner] handed over his petition" for filing. 273 F.3d at 1224. Tran's complete mail log also matches his state habeas filings exactly: he first mailed something to the "Clerk of the Los Angeles Superior Court" and "Attorney General's Office" on May 21, 2007; then mailed something to the "Clerk of the Court of Appeals" and "Attorney General's Office" on June 20, 2007; followed by the October 9, 2007 mailing to the "Clerk of the Court" and "Attorney General's Office." Further, Respondent has no suggestion as to what else the final mailing might be, other than Tran's habeas petition to the California Supreme Court.*fn1
An inspection of Tran's allegedly resubmitted habeas petition, filed by the California Supreme Court on October 27, 2009, also supports his claim. (Lodged Doc. No. 7.) The petition, brief, declaration, and proof of service are all dated either "October 8, 2007" or simply "October 2007," with the month and year typed and the date handwritten.*fn2 These immaterial variations in date format and writing medium seem uncharacteristic of an intentional forgery. In addition, Tran used the July 1, 2005 version of California Judicial Council Form MC-275, despite the release of new versions in at least 2007 and 2009. Although Tran might have intentionally or inadvertently used the outdated version in 2009, the 2005 Form is consistent with his claim that he first filed in 2007.
Finally, in his Objections to the Magistrate Judge's Report, Tran suggests that: "All the court [has] to do is ask the Attorney General's [Office] to produce[ their] legal mail from [October 7, 2007]. The record will show . . . a state habeas corpus on 10-9-2007." Of course, such a request could be disingenuous and intended to delay or mislead the court. But taken together with the other evidence, the court finds it more likely that Tran genuinely believes the Attorney General's Office has the alleged petition. For all these reasons then, the court concludes ...