FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
ANTHONY (TONY) GASTON, No. 01-56367 Petitioner-Appellant, D.C. No. v. CV-00-06612- ANNA RAMIREZ PALMER, NM(Mc) Respondent-Appellee. Central District of California, Los Angeles ORDER WITHDRAWING OPINION AND DENYING THE PETITION FOR REHEARING EN BANC
Filed August 2, 2005
Before: Andrew J. Kleinfeld, Kim McLane Wardlaw, and William A. Fletcher, Circuit Judges.
Order; Dissent by Judge O’Scannlain
ORDER
This court’s opinion filed October 28, 2004 is hereby with- drawn and replaced with the attached Opinion. With the filing of the new opinion, the petition for rehearing en banc filed November 12, 2004 is DENIED. Judge Kleinfeld would grant it. 8879 8880 GASTON v. PALMER A judge of the court called for a vote on the petition for rehearing en banc. A vote was taken, and a majority of the active judges of the court failed to vote for en banc rehearing. Fed. R. App. P. 35(f).
We defer decision on the petition for rehearing by the panel until after the Supreme Court has rendered a decision in Chavis v. LeMarque, 382 F.3d 921 (9th Cir. 2004), cert. granted, 125 S.Ct. 1969 (2005). The parties are directed to file simultaneous letter briefs with this court 30 days after the decision by the Supreme Court in Chavis, addressing the impact, if any, of that decision on this case.
O’SCANNLAIN, Circuit Judge, with whom KLEINFELD, GOULD, TALLMAN, CALLAHAN, and BEA, Circuit Judges, join, dissenting from denial of rehearing en banc:
We have frequently had difficulty interpreting the Antiter- rorism and Effective Death Penalty Act’s (“AEDPA”) one- year statute of limitations. See, e.g., Felix v. Mayle, 379 F.3d 612 (9th Cir. 2004), rev’d, 545 U.S. ___, 2005 WL 1469153 (June 23, 2005). In this latest episode, the court holds that a California habeas petitioner is entitled to statutory tolling dur- ing the interval between the denial of his petition by one state court and the filing of a new petition at the same level of the state court system.
The court’s decision runs squarely afoul of Carey v. Saf- fold, 536 U.S. 214 (2002), which limited interval tolling to periods “between a lower court decision and a filing of a new petition in a higher court.” Id. at 223 (emphases added). It also conflicts with our own holding in Delhomme v. Ramirez, 340 F.3d 817, 820 (9th Cir. 2003), that a petitioner begins a separate round of review “each time [he] files a new habeas petition at the same or a lower level” of the state court system. See also Biggs v. Duncan, 339 F.3d 1045, 1048 (9th Cir. GASTON v. PALMER 8881 2003) (concluding that statutory tolling is unavailable between separate rounds of state habeas review).
By refusing to rehear this case en banc, we forgo the oppor- tunity to correct one of our own errors and again leave it to the Supreme Court to undertake that task for us. I therefore respectfully dissent from the denial of rehearing en banc.
I
Anthony Gaston pursued state habeas relief by undertaking a five-year odyssey through the California court system dur- ing which he filed six habeas petitions in various state courts. Gaston began in the Court of Appeal, filed his second petition in the Superior Court, and then jumped up to the California Supreme Court. Gaston thereafter returned to the Superior Court, before refiling in the Court of Appeal and, yet again, in the California Supreme Court.
Gaston sought to establish the timeliness of this federal habeas petition by arguing that AEDPA’s limitations period was statutorily tolled throughout the course of his state court filings. Gaston’s tolling argument was premised upon 28 U.S.C. § 2244(d)(2), which provides that “[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.”
A majority of the panel held that Gaston’s federal filing was timely because his state petitions were “pending”—and AEDPA’s limitations period was therefore tolled—throughout the five-year duration of the state collateral review proceed- ings, including during each of the intervals between Gaston’s successive filings.
II
Unlike nearly every other State, California does not require a habeas petitioner to begin in the Superior Court and to pur- 8882 GASTON v. PALMER sue an appeal up to the state Supreme Court. Rather, Califor- nia authorizes original petitions for habeas relief to be filed in any state court. See Saffold, 536 U.S. at 221 (“California’s collateral review system differs from that of other States in that it does not require, technically speaking, appellate review of a lower court determination.”). California habeas petition- ers are thus able to file successive original petitions in non- ascending levels of the state court system.
A
In Saffold, the Supreme Court set forth the framework for determining when a California habeas petition is “pending” for purposes of 28 U.S.C. § 2244(d)(2). Saffold had pursued state habeas relief by following an orderly progression from the Superior Court to the Court of Appeal to the California Supreme Court. Saffold, 536 U.S. at 217. He thereafter filed a petition in federal district court. Id. at 218. The State argued that Saffold was not entitled to statutory tolling during the intervals between his successive state court filings and that his federal petition was therefore untimely.
The Supreme Court first concluded that in “typical ‘appeal’ States”—those in which a petitioner is required to begin in a trial court and to appeal up to the state supreme court—a habeas petition is “pending” during “the time between a lower state court’s decision and the filing of a notice of appeal to a higher state court.” Id. at 217, 221. The Court then considered whether this principle could be applied to the petitions that Saffold had filed in California’s atypical habeas system.
Although Saffold’s second and third filings were “original petitions” rather than “appeals,” these ascending petitions were—as a practical matter—indistinguishable from tradi- tional appellate filings. Indeed, the Court observed that “Cali- fornia’s ‘original writ’ system . . . is not as special in practice as its terminology might suggest” because “California’s habeas rules lead a prisoner ordinarily to file a petition in a GASTON v. PALMER 8883 lower court first. . . . The upshot is that California’s collateral review process functions very much like that of other States.” Id. at 221-22.
In light of these similarities between California’s habeas procedures and those of “typical ‘appeal’ States,” the Court held that “California’s system functions in ways sufficiently like other state systems of collateral review to bring intervals between a lower court decision and a filing of a new petition in a higher court within the scope of the statutory word ‘pend- ing.’ ” Id. at 223 (emphases added).
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FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
ANTHONY (TONY) GASTON, No. 01-56367 Petitioner-Appellant, D.C. No. v. CV-00-06612- ANNA RAMIREZ PALMER, NM(Mc) Respondent-Appellee. Central District of California, Los Angeles ORDER WITHDRAWING OPINION AND DENYING THE PETITION FOR REHEARING EN BANC
Filed August 2, 2005
Before: Andrew J. Kleinfeld, Kim McLane Wardlaw, and William A. Fletcher, Circuit Judges.
Order; Dissent by Judge O’Scannlain
ORDER
This court’s opinion filed October 28, 2004 is hereby with- drawn and replaced with the attached Opinion. With the filing of the new opinion, the petition for rehearing en banc filed November 12, 2004 is DENIED. Judge Kleinfeld would grant it. 8879 8880 GASTON v. PALMER A judge of the court called for a vote on the petition for rehearing en banc. A vote was taken, and a majority of the active judges of the court failed to vote for en banc rehearing. Fed. R. App. P. 35(f).
We defer decision on the petition for rehearing by the panel until after the Supreme Court has rendered a decision in Chavis v. LeMarque, 382 F.3d 921 (9th Cir. 2004), cert. granted, 125 S.Ct. 1969 (2005). The parties are directed to file simultaneous letter briefs with this court 30 days after the decision by the Supreme Court in Chavis, addressing the impact, if any, of that decision on this case.
O’SCANNLAIN, Circuit Judge, with whom KLEINFELD, GOULD, TALLMAN, CALLAHAN, and BEA, Circuit Judges, join, dissenting from denial of rehearing en banc:
We have frequently had difficulty interpreting the Antiter- rorism and Effective Death Penalty Act’s (“AEDPA”) one- year statute of limitations. See, e.g., Felix v. Mayle, 379 F.3d 612 (9th Cir. 2004), rev’d, 545 U.S. ___, 2005 WL 1469153 (June 23, 2005). In this latest episode, the court holds that a California habeas petitioner is entitled to statutory tolling dur- ing the interval between the denial of his petition by one state court and the filing of a new petition at the same level of the state court system.
The court’s decision runs squarely afoul of Carey v. Saf- fold, 536 U.S. 214 (2002), which limited interval tolling to periods “between a lower court decision and a filing of a new petition in a higher court.” Id. at 223 (emphases added). It also conflicts with our own holding in Delhomme v. Ramirez, 340 F.3d 817, 820 (9th Cir. 2003), that a petitioner begins a separate round of review “each time [he] files a new habeas petition at the same or a lower level” of the state court system. See also Biggs v. Duncan, 339 F.3d 1045, 1048 (9th Cir. GASTON v. PALMER 8881 2003) (concluding that statutory tolling is unavailable between separate rounds of state habeas review).
By refusing to rehear this case en banc, we forgo the oppor- tunity to correct one of our own errors and again leave it to the Supreme Court to undertake that task for us. I therefore respectfully dissent from the denial of rehearing en banc.
I
Anthony Gaston pursued state habeas relief by undertaking a five-year odyssey through the California court system dur- ing which he filed six habeas petitions in various state courts. Gaston began in the Court of Appeal, filed his second petition in the Superior Court, and then jumped up to the California Supreme Court. Gaston thereafter returned to the Superior Court, before refiling in the Court of Appeal and, yet again, in the California Supreme Court.
Gaston sought to establish the timeliness of this federal habeas petition by arguing that AEDPA’s limitations period was statutorily tolled throughout the course of his state court filings. Gaston’s tolling argument was premised upon 28 U.S.C. § 2244(d)(2), which provides that “[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.”
A majority of the panel held that Gaston’s federal filing was timely because his state petitions were “pending”—and AEDPA’s limitations period was therefore tolled—throughout the five-year duration of the state collateral review proceed- ings, including during each of the intervals between Gaston’s successive filings.
II
Unlike nearly every other State, California does not require a habeas petitioner to begin in the Superior Court and to pur- 8882 GASTON v. PALMER sue an appeal up to the state Supreme Court. Rather, Califor- nia authorizes original petitions for habeas relief to be filed in any state court. See Saffold, 536 U.S. at 221 (“California’s collateral review system differs from that of other States in that it does not require, technically speaking, appellate review of a lower court determination.”). California habeas petition- ers are thus able to file successive original petitions in non- ascending levels of the state court system.
A
In Saffold, the Supreme Court set forth the framework for determining when a California habeas petition is “pending” for purposes of 28 U.S.C. § 2244(d)(2). Saffold had pursued state habeas relief by following an orderly progression from the Superior Court to the Court of Appeal to the California Supreme Court. Saffold, 536 U.S. at 217. He thereafter filed a petition in federal district court. Id. at 218. The State argued that Saffold was not entitled to statutory tolling during the intervals between his successive state court filings and that his federal petition was therefore untimely.
The Supreme Court first concluded that in “typical ‘appeal’ States”—those in which a petitioner is required to begin in a trial court and to appeal up to the state supreme court—a habeas petition is “pending” during “the time between a lower state court’s decision and the filing of a notice of appeal to a higher state court.” Id. at 217, 221. The Court then considered whether this principle could be applied to the petitions that Saffold had filed in California’s atypical habeas system.
Although Saffold’s second and third filings were “original petitions” rather than “appeals,” these ascending petitions were—as a practical matter—indistinguishable from tradi- tional appellate filings. Indeed, the Court observed that “Cali- fornia’s ‘original writ’ system . . . is not as special in practice as its terminology might suggest” because “California’s habeas rules lead a prisoner ordinarily to file a petition in a GASTON v. PALMER 8883 lower court first. . . . The upshot is that California’s collateral review process functions very much like that of other States.” Id. at 221-22.
In light of these similarities between California’s habeas procedures and those of “typical ‘appeal’ States,” the Court held that “California’s system functions in ways sufficiently like other state systems of collateral review to bring intervals between a lower court decision and a filing of a new petition in a higher court within the scope of the statutory word ‘pend- ing.’ ” Id. at 223 (emphases added). Saffold was therefore entitled to tolling during the intervals between his ascending state court filings (as long as those intervals were of reason- able duration).
B
The Supreme Court premised Saffold’s entitlement to inter- val tolling upon his pursuit of habeas relief in a manner com- parable to that of a petitioner in a “typical ‘appeal’ State[ ].” Unlike Saffold, however, Gaston did not seek state habeas relief by following an orderly progression through ascending courts. Rather, in a rollercoaster-like fashion, he started in the Court of Appeal, went down to the Superior Court, jumped up to the Supreme Court, and then descended back to the Supe- rior Court. Even if we indulge the panel’s view that Gaston’s first Superior Court petition merely remedied a procedural deficiency in his initial Court of Appeal filing and that his first Supreme Court petition commenced an overlapping round of review that is irrelevant to Gaston’s tolling eligibil- ity, it remains readily apparent that Gaston’s pursuit of state habeas relief was not analogous to that of a petitioner in a “typical ‘appeal’ State[ ].”
When Gaston’s first Supreme Court filing is removed from consideration (as the panel majority says it must), it becomes evident that he filed two successive petitions in the Superior Court. Statutory tolling is unavailable during the interval 8884 GASTON v. PALMER between those two consecutive Superior Court filings because that period does not constitute an interval “between a lower court decision and a filing of a new petition in a higher court.” Saffold, 536 U.S. at 223 (emphases added). Under Saf- fold, it is a prerequisite to a California petitioner’s eligibility for statutory tolling that he pursue relief in a manner compara- ble to a petitioner in a “typical ‘appeal’ State[ ].” Because petitioners in typical States follow an ascending course through the court system, Gaston controverted Saffold’s requirements when he filed two successive petitions in the same state court. Indeed, we explicitly recognized this limita- tion on tolling eligibility in Delhomme, 340 F.3d at 820, where we held that “each time a petitioner files a new habeas petition at the same or a lower level, . . . the subsequent peti- tion . . . triggers an entirely separate round of review.”
In light of Saffold’s and Delhomme’s unequivocal pro- nouncements, it is difficult to comprehend the panel majori- ty’s declaration that it is “aware of no case suggesting that the filing of a redundant petition, which is denied immediately, deprives a petitioner of the right to interval tolling.” Amended op. at 8997. Indeed, Saffold and Delhomme do more than “suggest[ ]” that tolling is unavailable during such an interval; they compel that result.
III
Future panels that consider whether a California petitioner is entitled to interval tolling will now be forced to choose between two irreconcilable lines of precedent. Inevitably, some panels will follow Gaston and hold that interval tolling is available when a petitioner refiles in the same level of the state court system; others will adhere to Saffold and Del- homme and hold that tolling is not permitted under such cir- cumstances.
Rather than condone a decision that sows uncertainty and that fosters a conflict with Supreme Court precedent, we GASTON v. PALMER 8885 should have reheard this case en banc, and I respectfully dis- sent from our refusal to do so. PRINTED FOR ADMINISTRATIVE OFFICE—U.S. COURTS BY THOMSON/WEST—SAN FRANCISCO
The summary, which does not constitute a part of the opinion of the court, is copyrighted © 2005 Thomson/West.