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Curiel v. Miller

United States Court of Appeals, Ninth Circuit

July 25, 2016

Freddy Curiel, Petitioner-Appellant,
Amy Miller, Warden, Respondent-Appellee.

          Argued and Submitted En Banc March 23, 2016 San Francisco, California

         Appeal 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

          Jan B. Norman (argued), Altadena, California, for Petitioner-Appellant.

          Kevin 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.

         SUMMARY [*]

         Habeas Corpus

         The en banc court reversed the district court's judgment dismissing as untimely California state prisoner Freddy Curiel's federal habeas corpus petition.

         The en 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.

         Concurring, 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.

         Concurring, 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:

         This 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.


         In 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.

         Curiel 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. § 2244(d)(1)(A).

         On May 12, 2009, [1] 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 authority. On

         September 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 464, 474.)."

         On 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.

         Accepting 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.

         Curiel timely appealed, and we issued a certificate of appealability as to the timeliness of Curiel's federal petition for habeas corpus.


         We 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).


         AEDPA 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.


         "[A] 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).

         In 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).


         The 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 ...

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