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Kenny Warren Thompson v. Melissa Lea

June 7, 2012

KENNY WARREN THOMPSON, PETITIONER-APPELLANT,
v.
MELISSA LEA, CHIEF DEPUTY ADMINISTRATOR OF THE CALIFORNIA OUT OF STATE CORRECTIONAL FACILITY UNIT, RESPONDENT-APPELLEE.



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:

FOR PUBLICATION

OPINION

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

OPINION

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 ...


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