Argued and Submitted, San Francisco, California
November 5, 2013
Appeal from the United States District Court for the Eastern District of California. D.C. No. 2:11-cv-02115-GGH. Gregory G. Hollows, Magistrate Judge, Presiding.
The panel reversed the district court's order dismissing as untimely a 28 U.S.C. § 2254 habeas corpus petition challenging a misdemeanor conviction for driving under the influence, and remanded.
The panel held that in the context of California misdemeanants who are required to file a state habeas petition in order to both reach the state court of last resort and fully exhaust their claim before seeking relief in federal court, finality for the purposes of AEDPA occurs once the California Supreme Court denies their state habeas petition and the United States Supreme Court denies certiorari or the 90-day period for filing a petition for certiorari expires.
Dissenting, Judge Rawlinson wrote that the majority opinion erroneously conflates the concepts of finality and exhaustion and runs afoul of the time limits contained in 28 U.S.C. § 2244(d)(1)(A).
Charles Marchand Bonneau, II, Sacramento, California, for Petitioner-Appellant.
Brian G. Smiley (argued), Supervising Deputy Attorney General; Brian R. Means, Deputy Attorney General; Michael P. Farrell, Senior Assistant Attorney General; and Kamala D. Harris, Attorney General, Office of the Attorney General, Sacramento, California, for Respondent-Appellee.
Before: Sidney R. Thomas and Johnnie B. Rawlinson, Circuit Judges, and Kevin Thomas Duffy, District Judge.[*] Opinion by Judge Duffy; Dissent by Judge Rawlinson.
DUFFY, District Judge
Petitioner-Appellant Brian Joseph McMonagle appeals the district court's dismissal of his petition for a writ of habeas corpus brought under 28 U.S.C. § 2254. McMonagle seeks relief from a misdemeanor conviction for driving under the influence. In response to McMonagle's petition, the Attorney General's office filed a motion to dismiss the petition as untimely. On January 30, 2012, the district court granted Appellee's motion to dismiss on the grounds that it had not been filed within the time limit provided in 28 U.S.C. § 2244(d)(1)(A).
For the reasons discussed below, we reverse.
FACTS AND PROCEDURAL HISTORY
On November 21, 2008, Brian Joseph McMonagle was convicted by a jury of (i) misdemeanor driving under the influence of alcohol (" DUI" ) and (ii) driving with a blood alcohol level of .08% or more. The jury also determined that McMonagle drove with a blood alcohol level of .15% or more. McMonagle admitted a prior conviction as to each count and was sentenced to summary probation for three years, and 15 days in jail. McMonagle appealed his conviction to the Appellate Division of the Superior Court of California (" Appellate Division" ). On December 18, 2009, the Appellate Division reversed McMonagle's conviction for driving with a blood alcohol level of .08% and in excess of .15% in the wake of the Supreme Court's ruling in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Following the reasoning set forth in Crawford, the Appellate Division held that McMonagle's Confrontation Clause rights were violated when the state trial court admitted McMonagle's blood alcohol lab report without the sponsoring testimony of the analyst who prepared the report. The Appellate Division thus reversed his conviction for driving with a blood alcohol level of .08%. The Appellate Division did not, however, reverse the DUI conviction, holding that there was sufficient evidence to uphold the conviction, namely that McMonagle stopped abruptly and irregularly for a red light, drove abnormally slow, turned abruptly, smelled of alcohol, mumbled, admitted to consuming alcohol, had red, watery eyes, was slow and unsteady on his feet, and had difficulty walking.
McMonagle filed a timely request for certification of the matter to the California Court of Appeal, which the Appellate Division denied on January 19, 2010. On February 3, 2010, McMonagle filed a timely request for transfer in the Third District Court of Appeal, which was denied on February 11, 2010. On April 7, 2010, McMonagle timely filed a petition for writ of habeas corpus in the California Supreme Court asserting that he was denied the right to confrontation by the use in evidence of conclusions drawn by an expert witness who was not available to testify at trial. The California Supreme Court denied that petition without comment on June 17, 2010.
On August 10, 2011, McMonagle filed a federal petition for writ of habeas corpus in the Eastern District of California. The state moved to dismiss the federal petition on the grounds that it was untimely. The state argued that (i) McMonagle's period of " direct review" in the state courts ended on February 11, 2010, when the state Court of Appeal denied McMonagle's request for transfer, and (ii) the 90-day time period to seek certiorari in the United States Supreme Court ended on May 12, 2010. According to the state, the AEDPA one-year statute of limitations began on the following day, May 13, 2010, making the last day to file a federal writ of habeas corpus May 12, 2011, plus any time for tolling. The state conceded that McMonagle was entitled to a statutory toll pursuant to 28 U.S.C § 2244(d)(2) from May 13, 2010 (the day after McMonagle's 90-day period to petition the U.S. Supreme Court ostensibly expired) to June 17, 2010 (the date his state habeas petition was denied by the California Supreme Court). Thus, the state argued that the habeas petition filed in the California Supreme Court, while necessary for exhaustion, is not part of the " direct review" process for purposes of determining when the statute of limitations begins to run.
McMonagle argued that his one-year statute of limitations did not begin until September 17, 2010. This is 90 days after the California Supreme Court denied his habeas petition on June 17, 2010, and when his state court claim was fully exhausted and his period for Supreme Court review ended. McMonagle argued that since exhaustion of remedies to the highest state court is required before a habeas petition can be presented in federal court, the " direct review" of his claim ended only after the California Supreme Court denied his habeas petition and the 90-day time period to file with the United States Supreme Court had expired.
The district court granted the state's motion to dismiss on January 30, 2012. The district court held that while a misdemeanor defendant is entitled to appeal their conviction to the Appellate Division of the California Superior Court, a denial of a request to transfer to the California Court of Appeals is " final immediately" pursuant to the California Rules of Court. See Cal. R. Ct. 8.1018(a). As such, McMonagle's 90-day certiorari review period began on February 11, 2010--the day his request to transfer was denied. The district court further held that McMonagle was entitled to a 36-day toll pursuant to AEDPA's tolling provision in § 2244(d)(2). Tolling the statute of limitations moved McMonagle's habeas petition filing deadline to June 17, 2010 by the district court's calculus.
Following the district court's decision, McMonagle moved for reconsideration under Rule 59 of the Federal Rules of Civil Procedure, or, alternatively, that the district court issue a certificate of appealability. The district court denied McMonagle's motion for ...