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Robinson v. Lewis

United States Court of Appeals, Ninth Circuit

July 28, 2015

JULIUS M. ROBINSON, Petitioner-Appellant,
v.
G. W. LEWIS, Respondent-Appellee

Argued and Submitted, San Francisco, California June 11, 2015

Appeal from the United States District Court for the Eastern District of California. D.C. No. 2:13-cv-00604-WBS-AC. William B. Shubb, Senior District Judge, Presiding.

SUMMARY [**]

Habeas Corpus

The panel certified to the California Supreme Court the following question:

When a state habeas petitioner has no good cause for delay, at what point in time is that state prisoner's petition, filed in a California court of review to challenge a lower state court's disposition of the prisoner's claims, untimely under California law; specifically, is a habeas petition untimely filed after an unexplained 66-day delay between the time a California trial court denies the petition and the time the petition is filed in the California Court of Appeal?

For Petitioner-Appellant: Heather E. Williams, Federal Defender; David Hare Harshaw, III, Assistant Federal Public Defender, Sacramento, CA.

For Respondent-Appellee: Kamala D. Harris, Attorney General of California; Michael P. Farrell, Senior Assistant Attorney General; Brian G. Smiley, Supervising Deputy Attorney General; David Andrew Eldridge, Deputy Attorney General, Sacramento, CA.

Before: Mary M. Schroeder and Sandra S. Ikuta, Circuit Judges and J. Michael Seabright,[*] District Judge.

ORDER

We ask the California Supreme Court to resolve an important question of state law that the Ninth Circuit has long struggled to answer, a struggle that absorbs appellate and district court resources and frustrates state prisoners. The question is: when is a state prisoner's petition for a writ of state habeas corpus in a non-capital case timely filed in a California court? Without the California Supreme Court's guidance on this issue, federal courts lack the means to make a correct determination of whether a state habeas petition was properly filed, and thus whether its filing tolls the federal statute of limitations for filing a federal habeas petition. Accordingly, pursuant to Rule 8.548 of the California Rules of Court, we certify the following question to the California Supreme Court:

When a state habeas petitioner has no good cause for delay, at what point in time is that state prisoner's petition, filed in a California court of review to challenge a lower state court's disposition of the prisoner's claims, untimely under California law; specifically, is a habeas petition untimely filed after an unexplained 66-day delay between the time a California trial court denies the petition and the time the petition is filed in the California Court of Appeal?

Our phrasing of this question should not restrict the Court's consideration of the issues involved. The Court may rephrase the question as it sees fit in order to address the contentions of the parties. If the Court agrees to decide this question, we agree to accept its decision. We recognize that our certification request adds to the substantial caseload of the Court, and we submit this question for the Court's consideration because of its importance and its prevalence, as discussed below. " Comity and federalism counsel that the California Supreme Court, rather than this court, should answer" the certified question. Munson v. Del Taco, Inc., 522 F.3d 997, 999 (9th Cir. 2008).

We provide a brief background of the issue and its importance before discussing the particular case that requires us to consider it.

I

A

Under federal habeas law, 28 U.S.C. § 2244(d)(1), a state prisoner must file a petition for federal habeas review within a one year limitations period.[1] Section 2244(d)(2) further specifies that this federal limitations period is tolled for " [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." The federal statute has been interpreted to define " [t]he time that an application for state postconviction review is 'pending'" as including " the period between (1) a lower court's adverse determination, and (2) the prisoner's filing of a notice of appeal, provide ...


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