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Kenny Warren Thompson v. Melissa Lea


June 7, 2012


Appeal from the United States District Court for the Central District of California S. James Otero, District Judge, Presiding D.C. No. 2:08-cv-04290-SJO-AGR

The opinion of the court was delivered by: Gould, Circuit Judge:



Argued and Submitted March 6, 2012-Pasadena, California

Before: Harry Pregerson, Ronald M. Gould, and Richard C. Tallman, Circuit Judges.

Opinion by Judge Gould;

Dissent by Judge Tallman


California state prisoner Kenny Warren Thompson appeals the district court's denial of his 28 U.S.C. § 2254 habeas corpus petition because of its conclusion that the petition was time-barred. We have jurisdiction under 28 U.S.C. § 2253. We reverse and remand.

[1] The Antiterrorism and Effective Death Penalty Act ("AEDPA") sets a one-year limitations period in which a state prisoner must file a federal habeas corpus petition. 28 U.S.C. § 2244(d)(1). The limitations period runs from "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." Id. § 2244(d)(1)(A). The limitations period may be reset if a state court reopens direct review and a petitioner's conviction becomes "again capable of modification through direct appeal to the state courts and to [the Supreme] Court on certiorari review." Jimenez v. Quarterman, 555 U.S. 113, 120 (2009).

Here, Thompson's conviction initially became "final" on July 11, 2006, ninety days after the California Supreme Court denied his petition for review on direct appeal "without prejudice to any relief to which defendant [Thompson] might be entitled after the United States Supreme Court determines in Cunningham v. California . . . the effect of Blakely v. Washington[, 542 U.S. 296 (2004)] and United States v. Booker[, 543 U.S. 220 (2005)], on California law." See Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999) (holding that AEDPA's one-year limitations period begins to run after ninety-day period for seeking writ of certiorari in Supreme Court expires). After the Supreme Court decided Cunningham v. California, 549 U.S. 270 (2007), Thompson filed a motion in the California Court of Appeal to recall the remittitur and reinstate his appeal based on Cunningham. The court of appeal denied the motion, but on May 23, 2007, the California Supreme Court granted review of Thompson's petition for review of the court of appeal's denial order, and deferred further action in the matter pursuant to California Rule of Court 8.512(d)(2).

[2] By granting review, the California Supreme Court reopened direct review and made Thompson's conviction "again capable of modification through direct appeal."*fn1 Jime- nez, 555 U.S. at 120. Thompson's conviction remained non-final "during the pendency of the reopened appeal" and became "final" for purposes of § 2244(d)(1)(A) on December 11, 2007, ninety days after the California Supreme Court dismissed review on the merits, in light of its decision in People v. Black, 161 P.3d 1130 (Cal. 2007).*fn2 See id. at 120 & n.4; Bowen, 188 F.3d at 1160; see also Cal. R. Ct. 8.528(b) advisory committee's comment (explaining that "after the [California Supreme Court] decides a 'lead' case"-here, People v. Black-"its current practice is to dismiss review in any pending companion case (i.e., a 'grant and hold' matter under [current Rule 8.512(d)]) that appears correctly decided in light of the lead case and presents no additional issue requiring resolution by the Supreme Court or the Court of Appeal").*fn3

Thompson's federal habeas corpus petition, filed on June 30, 2008, was timely. See 28 U.S.C. § 2244(d)(1).

We reverse and remand to the district court to consider Thompson's habeas corpus petition on the merits.


TALLMAN, dissenting:

This appeal turns on how we interpret the effect of the California Supreme Court's "grant and hold" order and its subsequent one-sentence order dismissing 112 petitions for review, including Thompson's motion to recall the remittitur.*fn1

Because I do not interpret these orders as reopening direct review such that Thompson's conviction and sentence were "again capable of modification through direct appeal," Jimenez, 555 U.S. at 120, I respectfully dissent.

The Supreme Court in Jimenez held that "where a state court grants a criminal defendant the right to file an out-of-time direct appeal during state collateral review, but before the defendant has first sought federal habeas relief, his judgment is not yet 'final' for purposes of § 2244(d)(1)(A)." 555 U.S. at 121. The Court also reaffirmed that the mere "possibility that a state court may reopen direct review 'does not render convictions and sentences that are no longer subject to direct review non-final.' " Id. at 120 n.4 (quoting Beard v. Banks, 542 U.S. 406, 412 (2004)). In Jimenez, the Texas state court had actually granted the petitioner the right to file an out-of-time appeal, which he had filed in the Texas Court of Criminal Appeals. Id. at 116. Upon full review in the appellate court, his conviction was affirmed. Id. Thompson argues, and the majority erroneously agrees, that-based upon the grant and hold order and the subsequent summary dismissal of review Jimenez controls here, thus resetting the date his conviction became final to December 11, 2007. See Opinion at 6370-71.

Granting and holding Thompson's motion to recall the remittitur in order to decide whether his direct review should be reopened while the state court of last resort awaited issuance of a United States Supreme Court decision in a related case that could impact multiple petitions, however, only presented the mere "possibility" that direct review would be reopened. Like the petitioner in Jimenez, Thompson requested that the California Supreme Court recall the remittitur (akin to our court recalling the mandate) and reinstate his direct appeal so that he could present new arguments regarding the effect of Cunningham v. California, 549 U.S. 270 (2007), on his sentence. Unlike the Texas Court of Criminal Appeals (that state's court of last resort) however, the California Supreme Court did not actually reinstate direct review.

Thompson's motion was not remanded to the California Court of Appeal for decision on the merits and he was not allowed to file a fully briefed out-of-time appeal.*fn2 Instead, the California Supreme Court determined that neither Cunningham nor People v. Black, 161 P.3d 1130 (Cal. 2007), entitled him to a recall of the remittitur and reinstatement of his direct appeal.

Furthermore in Randle v. Crawford, 604 F.3d 1047, 1054-57 (9th Cir. 2010), in rejecting the argument that Jimenez applied to the Nevada Supreme Court's denial of an outof-time appeal as untimely, we held that if the "one-year limitations period were made contingent on the resolution of a petitioner's attempt to file an untimely notice of appeal, a petitioner could indefinitely delay the commencement of the one-year period by simply waiting to file such notice until after the normal expiration date." Id. at 1055 (internal quotation marks omitted). Ultimately, the "narrow" holding in Jimenez did not apply because the petitioner merely "sought to restore his direct appeal, and that request was rejected by the Nevada Supreme Court." Id. at 116. And, "[a]lthough [Petitioner] was entitled to present . . . the arguments that he would have presented on direct appeal in his state post-conviction relief proceeding, his direct appeal was not, and could not be reinstated." Id. Thompson similarly requested a second chance in the California Court of Appeal, but the California Supreme Court denied that request after the disposition in Black, 161 P.3d 1130. Thus, his direct appeal was never reopened and his sentence remained incapable of modification.

I further part company with my colleagues because I do not interpret the one-sentence summary dismissal of 112 petitions for review as dismissing each petition, and therefore Thomp-son's underlying claims, "on the merits" of the arguments he would have made had the California Supreme Court truly reinstated direct review. Nor can we infer from a one-sentence order dismissing all of these petitions that the California Supreme Court itself fully considered the underlying merits of each case.

Indeed, we have been specifically instructed not to infer too much from similar California Supreme Court summary orders. See Evans v. Chavez, 546 U.S. 189, 198-99 (2006) (reversing the Ninth Circuit's determination that a California Supreme Court order was on the merits when the order "was silent on the grounds for the court's decision"); Carey v. Saf-fold, 536 U.S. 214, 226 (2002) ("Given the variety of reasons why the California Supreme Court may have included the words 'on the merits,' those words cannot by themselves indicate that the petition was timely. And the Ninth Circuit's apparent willingness to take such words as an absolute bellwether risks the tolling of the federal limitations period even when it is highly likely that the prisoner failed to seek timely review in the state appellate courts.").

The more plausible and likely reading of the one-sentence order is that, in light of the holding in Black, 161 P.3d 1130, the California Supreme Court dismissed Thompson's review because neither the motion to recall the remittitur nor the record before the court showed that such extraordinary relief of reopening direct review was warranted. Because Thompson was never entitled to and indeed did not have his direct review reinstated, Jimenez does not apply and the AEDPA clock was not reset, rendering Thompson's federal habeas petition untimely.*fn3 I would therefore affirm the district court's dismissal of Thompson's untimely petition.

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