FILED NOT FOR PUBLICATION AUG 24 2020 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JULIUS M. ROBINSON, No. 14-15125
Petitioner-Appellant, D.C. No. 2:13-cv-00604-WBS-AC v.
G. W. LEWIS, MEMORANDUM*
Respondent-Appellee.
Appeal from the United States District Court for the Eastern District of California William B. Shubb, District Judge, Presiding
Argued and Submitted June 11, 2015 San Francisco, California
Submission Withdrawn July 28, 2015 Resubmitted August 20, 2020
Before: SCHROEDER and IKUTA, Circuit Judges, and SEABRIGHT,** District Judge.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable J. Michael Seabright, United States Chief District Judge for the District of Hawaii, sitting by designation. Julius Robinson appeals the dismissal of his petition for habeas corpus. We
have jurisdiction under 28 U.S.C. §§ 1291 and 2253(a), and having received an
answer to our certified question, we reverse and remand.
Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),
“[a] 1-year period of limitation shall apply to an application for a writ of habeas
corpus by a person in custody pursuant to the judgment of a State court.” 28
U.S.C. § 2244(d)(1). But “[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 [this] period of
limitation.” 28 U.S.C. § 2244(d)(2). “[W]e apply the AEDPA statute of
limitations on a claim-by-claim basis.” Mardesich v. Cate, 668 F.3d 1164, 1173
(9th Cir. 2012). We must determine how this statutory framework applies to
California post-conviction proceedings.
In California, “[t]he Supreme Court, courts of appeal, superior courts, and
their judges have original jurisdiction in habeas corpus proceedings.” Robinson v.
Lewis, No. S228137, 2020 WL 4045925, at *4 (Cal. July 20, 2020) (quoting Cal.
Const., art. VI, § 10). “Petitioners should first file a petition for a writ of habeas
corpus challenging a judgment in the superior court that rendered the judgment.”
Id. at *5. To this end, “[a] higher court ‘has discretion to deny without prejudice a
2 habeas corpus petition that was not filed first in a proper lower court.’” Id.
(quoting In re Steele, 32 Cal. 4th 682, 692 (2004)). In non-capital cases, “if the
superior court denies a petition for a writ of habeas corpus, the petitioner has no
statutory right to appeal” and must instead “file a new, original petition, generally
in the Court of Appeal.” Id. at *4. “The new petition can add to or attempt to
bolster the claims made in the earlier petition.” Id.
In Carey v. Saffold, the Supreme Court considered this framework and
concluded 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
‘pending.’” 536 U.S. 214, 223 (2002). According to Saffold, “California applies a
general ‘reasonableness’ standard” when determining timeliness, unlike other
states, which “specify precise time limits, such as 30 or 45 days, within which an
appeal must be taken.” Id. at 222.
In a subsequent case addressing the same issue, Evans v. Chavis, the Court
instructed lower courts to determine whether, under California law, a petitioner
filed a new petition in a higher court within a “reasonable time.” 546 U.S. 189,
193 (2006) (citing Saffold, 536 U.S. at 222–23). If so, “the days between (1) the
time the lower state court reached the adverse decision, and (2) the day he filed a
3 petition in the higher state court” are “pending” for purposes of 28 U.S.C.
§ 2244(d)(2) and therefore “add[ed] to the 1-year time limit.” Id. (citing Saffold,
536 U.S. at 222–23).
Because of the difficulty in determining what constitutes a “reasonable time”
between a lower court’s denial of a habeas petition and the filing of a new petition
in a higher state court, Chavis suggested “certifying a question to the California
Supreme Court in an appropriate case.” Id. at 199 (citing Saffold, 536 U.S. at
226–27). The Court noted, however, that an unexplained delay of six
months—“far longer than the ‘short periods of time,’ 30 to 60 days, that most
States provide for filing an appeal to the state supreme court”—would not “fall
within the scope of the federal statutory word ‘pending’ as interpreted in Saffold.”
Id. at 201 (quoting Saffold, 536 U.S. at 219).
In this case, we were presented with the question whether “a habeas petition
[is] untimely filed after an unexplained 66-day delay between the time a California
trial court denies the petition and the time [a new] petition is filed in the California
Court of Appeal.” Robinson v. Lewis, 795 F.3d 926, 928 (9th Cir. 2015).
Following the Supreme Court’s guidance, Chavis, 546 U.S. at 199, we certified the
question to the California Supreme Court, Robinson, 795 F.3d at 928. In response,
the California Supreme Court explained that it does “not consider whether the
4 petition was timely but rather whether the claims presented within the petition were
timely,” and therefore it “consider[s] only the question of whether each of those
claims was presented without substantial delay, as set forth in In re Robbins, 18
Cal. 4th 770, 780 (1998).” Robinson, 2020 WL 4045925, at *2.
In re Robbins held that a state prisoner’s petition for collateral review is
entitled to a presumption of timeliness if it is filed within 90 days after the filing of
the petitioner’s reply brief on a direct appeal. 18 Cal. 4th at 780. Without this
presumption, a petitioner can still avoid the bar of untimeliness by establishing:
(1) absence of substantial delay, (2) good cause for the delay, or (3) that the claim
falls within an exception to the bar of untimeliness (e.g., the petitioner is actually
innocent). Id. Because California petitioners should present a claim in a lower
court before presenting it to a higher court, Robinson, 2020 WL 4045925, at *5,
the time during which a claim is pending in a lower court is not counted against a
petitioner when determining whether the petitioner substantially delayed in
presenting the claim to a higher court, see id. at *2. But California courts do take
into account “gap delay”—that is, “the time gap between the denial of a petition
for a writ of habeas corpus in a lower California court and the filing of a new
petition in a higher California court raising the same claims.” Id. at *1. Although
California courts “do not generally consider, separately, whether the gap delay, by
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FILED NOT FOR PUBLICATION AUG 24 2020 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JULIUS M. ROBINSON, No. 14-15125
Petitioner-Appellant, D.C. No. 2:13-cv-00604-WBS-AC v.
G. W. LEWIS, MEMORANDUM*
Respondent-Appellee.
Appeal from the United States District Court for the Eastern District of California William B. Shubb, District Judge, Presiding
Argued and Submitted June 11, 2015 San Francisco, California
Submission Withdrawn July 28, 2015 Resubmitted August 20, 2020
Before: SCHROEDER and IKUTA, Circuit Judges, and SEABRIGHT,** District Judge.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable J. Michael Seabright, United States Chief District Judge for the District of Hawaii, sitting by designation. Julius Robinson appeals the dismissal of his petition for habeas corpus. We
have jurisdiction under 28 U.S.C. §§ 1291 and 2253(a), and having received an
answer to our certified question, we reverse and remand.
Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),
“[a] 1-year period of limitation shall apply to an application for a writ of habeas
corpus by a person in custody pursuant to the judgment of a State court.” 28
U.S.C. § 2244(d)(1). But “[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 [this] period of
limitation.” 28 U.S.C. § 2244(d)(2). “[W]e apply the AEDPA statute of
limitations on a claim-by-claim basis.” Mardesich v. Cate, 668 F.3d 1164, 1173
(9th Cir. 2012). We must determine how this statutory framework applies to
California post-conviction proceedings.
In California, “[t]he Supreme Court, courts of appeal, superior courts, and
their judges have original jurisdiction in habeas corpus proceedings.” Robinson v.
Lewis, No. S228137, 2020 WL 4045925, at *4 (Cal. July 20, 2020) (quoting Cal.
Const., art. VI, § 10). “Petitioners should first file a petition for a writ of habeas
corpus challenging a judgment in the superior court that rendered the judgment.”
Id. at *5. To this end, “[a] higher court ‘has discretion to deny without prejudice a
2 habeas corpus petition that was not filed first in a proper lower court.’” Id.
(quoting In re Steele, 32 Cal. 4th 682, 692 (2004)). In non-capital cases, “if the
superior court denies a petition for a writ of habeas corpus, the petitioner has no
statutory right to appeal” and must instead “file a new, original petition, generally
in the Court of Appeal.” Id. at *4. “The new petition can add to or attempt to
bolster the claims made in the earlier petition.” Id.
In Carey v. Saffold, the Supreme Court considered this framework and
concluded 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
‘pending.’” 536 U.S. 214, 223 (2002). According to Saffold, “California applies a
general ‘reasonableness’ standard” when determining timeliness, unlike other
states, which “specify precise time limits, such as 30 or 45 days, within which an
appeal must be taken.” Id. at 222.
In a subsequent case addressing the same issue, Evans v. Chavis, the Court
instructed lower courts to determine whether, under California law, a petitioner
filed a new petition in a higher court within a “reasonable time.” 546 U.S. 189,
193 (2006) (citing Saffold, 536 U.S. at 222–23). If so, “the days between (1) the
time the lower state court reached the adverse decision, and (2) the day he filed a
3 petition in the higher state court” are “pending” for purposes of 28 U.S.C.
§ 2244(d)(2) and therefore “add[ed] to the 1-year time limit.” Id. (citing Saffold,
536 U.S. at 222–23).
Because of the difficulty in determining what constitutes a “reasonable time”
between a lower court’s denial of a habeas petition and the filing of a new petition
in a higher state court, Chavis suggested “certifying a question to the California
Supreme Court in an appropriate case.” Id. at 199 (citing Saffold, 536 U.S. at
226–27). The Court noted, however, that an unexplained delay of six
months—“far longer than the ‘short periods of time,’ 30 to 60 days, that most
States provide for filing an appeal to the state supreme court”—would not “fall
within the scope of the federal statutory word ‘pending’ as interpreted in Saffold.”
Id. at 201 (quoting Saffold, 536 U.S. at 219).
In this case, we were presented with the question whether “a habeas petition
[is] untimely filed after an unexplained 66-day delay between the time a California
trial court denies the petition and the time [a new] petition is filed in the California
Court of Appeal.” Robinson v. Lewis, 795 F.3d 926, 928 (9th Cir. 2015).
Following the Supreme Court’s guidance, Chavis, 546 U.S. at 199, we certified the
question to the California Supreme Court, Robinson, 795 F.3d at 928. In response,
the California Supreme Court explained that it does “not consider whether the
4 petition was timely but rather whether the claims presented within the petition were
timely,” and therefore it “consider[s] only the question of whether each of those
claims was presented without substantial delay, as set forth in In re Robbins, 18
Cal. 4th 770, 780 (1998).” Robinson, 2020 WL 4045925, at *2.
In re Robbins held that a state prisoner’s petition for collateral review is
entitled to a presumption of timeliness if it is filed within 90 days after the filing of
the petitioner’s reply brief on a direct appeal. 18 Cal. 4th at 780. Without this
presumption, a petitioner can still avoid the bar of untimeliness by establishing:
(1) absence of substantial delay, (2) good cause for the delay, or (3) that the claim
falls within an exception to the bar of untimeliness (e.g., the petitioner is actually
innocent). Id. Because California petitioners should present a claim in a lower
court before presenting it to a higher court, Robinson, 2020 WL 4045925, at *5,
the time during which a claim is pending in a lower court is not counted against a
petitioner when determining whether the petitioner substantially delayed in
presenting the claim to a higher court, see id. at *2. But California courts do take
into account “gap delay”—that is, “the time gap between the denial of a petition
for a writ of habeas corpus in a lower California court and the filing of a new
petition in a higher California court raising the same claims.” Id. at *1. Although
California courts “do not generally consider, separately, whether the gap delay, by
5 itself, made the claims raised in [a] petition untimely,” the California Supreme
Court “would never consider delay of up to 120 days between denial of a petition
in the superior court and the filing of a new petition in the Court of Appeal . . . to
be substantial delay.” Id. at *2.
Under Saffold, we must treat the California system “as similar to other
States” because “its ‘original writ’ system functions like the ‘appeal’ systems of
those other States.” 536 U.S. at 225. As such, although California considers the
timeliness of individual claims, a petitioner is reasonably diligent and “the ordinary
state collateral review process is ‘in continuance,’” id. at 219–20, so long as the
petitioner does not substantially delay in pursuing a claim in a higher court after its
denial in a lower court, see Robinson, 2020 WL 4045925, at *1. Therefore, if a
petitioner does not substantially delay in presenting a claim to a lower court, see In
re Robbins, 18 Cal. 4th at 780, and, after the claim is denied, the petitioner presents
the claim to a higher court within the 120-day safe harbor recognized by the
California Supreme Court, see Robinson, 2020 WL 4045925, at *9, there is no
substantial delay and the “ordinary state collateral review process is ‘in
continuance,’” Saffold, 536 U.S. at 219–20.
Applying this understanding to the case at hand, the district court erred in
dismissing Robinson’s federal habeas petition as barred by AEDPA’s one-year
6 limitations period, 28 U.S.C. § 2244(d)(1). After the California Superior Court
denied Robinson’s claims, Robinson filed a petition in the California Court of
Appeal, presenting the same claims, within 66 days of the denial.1 In light of the
California Supreme Court’s answer to our certified question, this 66-day interval is
not a substantial delay. See Robinson, 2020 WL 4045925, at *9. Therefore, under
Saffold, the “ordinary state collateral review process [was] ‘in continuance,’” 536
U.S. at 219–20, and all of Robinson’s claims are deemed to have been pending
throughout the 66-day period. Therefore, the 66 days “shall not be counted”
toward AEDPA’s one-year limitations period. 28 U.S.C. § 2244(d)(2); see Chavis,
546 U.S. at 193; Saffold, 536 U.S. at 219–20. Because the limitations period was
1 Because Robinson’s new petition in the California Court of Appeal raised “no additional claims,” this is not a case where a petition “containing multiple claims might have one or more claims that are untimely and one or more claims that are timely.” Robinson, 2020 WL 4045925, at *6; see also Mardesich, 668 F.3d at 1173. 7 tolled for these 66 days, Robinson timely filed his federal habeas petition on March
13, 2013. See Robinson, 795 F.3d at 935.2
REVERSED AND REMANDED.3
2 Because this is not a case where there was a delay “far longer than the ‘short period[s] of time,’ 30 to 60 days, that most States provide for filing an appeal,” we leave for another day the question whether a non-substantial delay under California law could nevertheless be so long that it does not “fall within the scope of the federal statutory word ‘pending’ as interpreted in Saffold.” Evans, 546 U.S. at 201 (citation omitted); see also Robinson, 2020 WL 4045925, at *9 (rejecting a six-month safe harbor as “unduly generous” because, among other reasons, “the United States Supreme Court observed that it did not ‘see how an unexplained delay of this magnitude [six months] could fall within the scope of the federal statutory word ‘pending’”). 3 Respondent’s Unopposed Request to Withdraw Supplemental Brief (ECF No. 58) is GRANTED. 8