and Submitted En Banc March 23, 2016 San Francisco,
from the United States District Court for the Central
District of California Dean D. Pregerson, District Judge,
Presiding D.C. No. 8:10-cv-00301-DDP-FMO
Norman (argued), Altadena, California, for
Vienna (argued), Supervising Deputy Attorney General; Angela
M. Borzachillo, Deputy Attorney General; Julie L. Garland,
Senior Assistant Attorney General; Kamala D. Harris, Attorney
General; Office of the Attorney General, San Diego,
California; for Respondent-Appellee.
Before: Sidney R. Thomas, Chief Judge, and Stephen Reinhardt,
Barry G. Silverman, Susan P. Graber, Ronald M. Gould, Richard
A. Paez, Jay S. Bybee, Mary H. Murguia, Andrew D. Hurwitz,
John B. Owens, and Michelle T. Friedland, Circuit Judges.
banc court reversed the district court's judgment
dismissing as untimely California state prisoner Freddy
Curiel's federal habeas corpus petition.
banc court held that the California Supreme Court's
denial of Curiel's third state habeas petition with
reference to In re Swain and People v.
Duvall , California Supreme Court cases concerning the
state habeas pleading particularity requirement, and with no
reference to a California case dealing with untimeliness,
demonstrate that the California Supreme Court found
Curiel's third petition to be timely but deficiently
pleaded, and in doing so, overruled the prior untimeliness
rulings of the Superior Court and the Court of Appeal. The en
banc court concluded that because the California Supreme
Court's timeliness holding prevails, Curiel's state
habeas petitions must be deemed "properly filed"
for their entire pendency in state court for purposes of
tolling AEDPA's statute of limitations, and that with
such statutory tolling, Curiel filed his federal petition
within the limitations period.
Judge Reinhardt urged the California Supreme Court to specify
whether it is deciding on the merits any or all of the
questions of federal constitutional law that are raised in
the case before it, and identify the constitutional basis of
all such claims that it is denying, if any. He wrote
separately to urge the California Supreme Court to take a
slightly different approach to questions of federal
constitutional law in view of recent decisions of the United
States Supreme Court that have placed on state courts an
almost impossible burden of being the final decision-maker in
an overwhelming number of cases involving fundamental
constitutional rights of criminal defendants.
Judge Bybee wrote separately to express frustration that
communication between the California Supreme Court and this
court over the proper interpretation of California state
habeas decisions has devolved into a series of hints that the
California Supreme Court obliquely telegraphs and that this
court struggles to decipher.
MURGUIA, Circuit Judge:
case concerns the timeliness of Freddy Curiel's federal
habeas petition under the Antiterrorism and Effective Death
Penalty Act of 1996 ("AEDPA"). We hold that the
district court erred in dismissing Curiel's habeas
petition as untimely.
March 2006, a California jury convicted Curiel of special
circumstances first-degree murder and street terrorism.
Curiel was sentenced to life in prison without the
possibility of parole, plus twenty-five years.
appealed his conviction to the California Court of Appeal,
which affirmed, and to the California Supreme Court, which
denied his petition for review on June 11, 2008. Curiel's
conviction became final on September 9, 2008, after the time
for Curiel to file a petition for a writ of certiorari in the
United States Supreme Court lapsed. 28 U.S.C. §
12, 2009,  Curiel initiated a collateral attack on
his conviction by filing a petition for a writ of habeas
corpus in Orange County Superior Court. The court denied his
petition on June 10, 2009, on the "separate and
independent grounds" that it was untimely and that
Curiel failed to set forth a prima facie case for relief. On
July 7, 2009, Curiel filed a second habeas corpus petition in
the California Court of Appeal, which the Court of Appeal
denied on August 6, 2009, without comment or citation to
7, 2009, Curiel filed a third habeas petition in the
California Supreme Court, raising the same claims as his
first two state petitions. On February 18, 2010, the
California Supreme Court dismissed Curiel's petition in a
decision that reads in full: "The petition for writ of
habeas corpus is denied. (See In re Swain (1949) 34
Cal.2d 300, 304; People v. Duvall (1995) 9 Cal.4th
March 8, 2010, Curiel filed a federal petition for habeas
corpus pursuant to 28 U.S.C. § 2254 in federal district
court. The government moved to dismiss Curiel's habeas
petition as untimely because it was filed more than one year
after his conviction became final. In opposition, Curiel
argued that AEDPA's statute of limitations should be
statutorily tolled for the period during which his state
habeas petitions were pending, and also that he was entitled
to equitable tolling due to trial counsel's alleged delay
in returning his client file.
the findings and recommendation of the magistrate judge, the
district court determined that Curiel was not entitled to
statutory tolling for the three months that his habeas
petitions were pending in the California Superior Court or
the Court of Appeal because untimely petitions do not toll
AEDPA's limitations period. The district court observed
that the Superior Court had explicitly imposed an
untimeliness bar in denying Curiel's first habeas
petition, and held that the Court of Appeal implicitly
adopted the Superior Court's reasoning when it denied
Curiel's second petition without explanation. The
district court did, however, toll Curiel's federal filing
deadline for the pendency of his petition in the California
Supreme Court, concluding that the Supreme Court's
citations to Swain and Duvall indicated
that the court had denied Curiel's third petition based
solely on the deficiency of his pleadings. Nevertheless,
tolling the clock for the period that Curiel's petition
was before the California Supreme Court, alone, was
insufficient to render Curiel's federal petition timely.
Therefore, after rejecting Curiel's equitable tolling
argument, the district court dismissed Curiel's habeas
petition with prejudice.
timely appealed, and we issued a certificate of appealability
as to the timeliness of Curiel's federal petition for
review de novo a district court's denial of a habeas
corpus petition. Hurles v. Ryan, 752 F.3d 768, 777
(9th Cir. 2014). Where, as here, the facts underlying a
habeas petitioner's claim for tolling of AEDPA's
limitations period are undisputed, we also review de novo
whether the statute of limitations should be tolled.
Espinoza-Matthews v. California, 432 F.3d 1021, 1025
(9th Cir. 2005).
requires a state prisoner to file a federal habeas petition
pursuant to 28 U.S.C. § 2254 within one year of the date
on which his conviction becomes final on direct review,
unless the petitioner qualifies for statutory or equitable
tolling. Id. § 2244(d)(1)(A). In Curiel's
case, AEDPA's one-year statute of limitations lapsed on
September 9, 2009. See id. Curiel filed his federal
petition on March 8, 2010. Thus, for his petition to be
timely, Curiel must demonstrate that he is entitled to at
least six months of tolling.
properly filed application for State post-conviction or other
collateral review" tolls AEDPA's statute of
limitations for the pendency of the state court proceedings.
Id. § 2244(d)(2). A habeas petition that is
untimely under state law is not "properly filed."
Pace v. DiGuglielmo, 544 U.S. 408, 413 (2005).
Therefore, none of the time before or during the state
court's consideration of an untimely petition is tolled
for purposes of AEDPA's limitations period. Evans v.
Chavis, 546 U.S. 189, 197 (2006).
California, courts "appl[y] a general
'reasonableness' standard" when determining
whether a habeas petition was timely filed. Carey v.
Saffold, 536 U.S. 214, 222 (2002). A petition is timely
under California law when the highest state court to render a
decision on the petition finds it to be so. Campbell v.
Henry, 614 F.3d 1056, 1061 (9th Cir. 2010).
California Supreme Court rules on a "staggering"
number of habeas petitions each year, generally by issuing
"unelaborated 'summary denials.'"
Walker v. Martin, 562 U.S. 307, 312–13 (2011).
When the California Supreme Court denies a habeas corpus
petition without opinion, it "frequently cites either a
California Supreme Court case or some other authority which
indicates to the petitioner the grounds for the denial."
Harris v. Superior Court, 500 F.2d 1124,
1127–28 (9th Cir. 1974) (en banc). The California
Supreme Court has provided us with the following guidance on
how to interpret its summary denial practice:
[W]hen respondent asserts that a particular claim or subclaim
. . . is untimely, and when, nevertheless, our order
disposing of a habeas corpus petition does not impose the
proposed bar . . . as to that claim or subclaim, this
signifies that we have considered respondent's assertion
and have ...