Cross v. Sisto, 2012 U.S. App. LEXIS 7807

Cross was convicted in California in 2003 of second-degree murder and sentenced to 54 years to life.
California Supreme Court denied direct review on January 12, 2005, making his direct appeal final 90 days later.
Cross pursued multiple state habeas petitions from July 2005 through June 2007, including rounds in Alameda Superior Court, California Court of Appeal, and California Supreme Court.
In 2007 Cross filed a federal habeas petition; the district court denied as untimely, relying on Swain/Duvall to treat the California Supreme Court’s citation as untimeliness.
The Ninth Circuit held that Swain and Duvall citations do not automatically signify untimeliness and that the petition could be properly filed and tolling could apply.
The court remanded to the district court to consider the federal petition on the merits, finding the petition timely under AEDPA tolling.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Does a Swain/Duvall citation imply untimeliness?	Cross argues citations do not automatically render the petition untimely.	Sisto maintains Swain/Duvall denote untimeliness as a matter of state law.	No; citations may indicate related deficiencies but not automatic untimeliness.
Was Cross's first state habeas petition properly filed for tolling?	Cross contends the petition was properly filed and tolls AEDPA, despite defects that could be cured.	Sisto contends the petition was untimely and not properly filed.	Yes; the petition was properly filed and tolled AEDPA.
Was there tolling for the second round of state habeas petitions?	Cross asserts proper filing and tolling for the second round as timely filed.	Sisto argues the second round did not toll because of procedural issues.	Yes; the second round petitions were properly filed, tolling AEDPA.
Is Cross's federal petition timely after applying tolling across rounds?	Cross contends the combined tolling keeps the federal petition timely.	Sisto contends the petition would be untimely without proper tolling.	Yes; the petition was timely when tolling is properly applied.

Gaston v. Palmer, 417 F.3d 1030 (9th Cir. 2005) (Swain/Duvall citations may indicate deficiencies but do not automatically bar tolling)
King v. Roe, 340 F.3d 821 (9th Cir. 2003) (Swain indicates denial without prejudice to amend and not an automatic untimeliness bar)
Kim v. Villalobos, 799 F.2d 1317 (9th Cir. 1986) (Swain/Duvall analysis allows amendment to cure deficiencies)
Ex parte Swain, 34 Cal.2d 300 (Cal. 1949) (Citational basis for requiring timely/factual pleading; leave to amend)
People v. Duvall, 886 P.2d 1258 (Cal. 1995) (California standard for habeas pleadings and particularity)
Artuz v. Bennett, 531 U.S. 4 (S. Ct. 2000) (Definition of 'properly filed' for tolling AEDPA)
Carey v. Saffold, 536 U.S. 214 (S. Ct. 2002) (California's reasonable timeliness standard for petitions)
Evans v. Chavis, 546 U.S. 189 (S. Ct. 2006) (California timeliness standard and tolling framework)
Allen v. Siebert, 552 U.S. 3 (S. Ct. 2007) (Clarifies tolling when state petitions are untimely)
Washington v. Cambra, 208 F.3d 832 (9th Cir. 2000) (Swain/Dixon grounds not independently controlling when evaluating tolling)
Nino v. Galaza, 183 F.3d 1003 (9th Cir. 1999) (Intervals between state filings may toll when timely)
Porter v. Ollison, 620 F.3d 952 (9th Cir. 2010) (Multiple rounds tolling recognized)
Biggs v. Duncan, 339 F.3d 1045 (9th Cir. 2003) (Tolling considerations between state petitions)
Pace v. DiGuglielmo, 544 U.S. 408 (S. Ct. 2005) (Tolling during time for state review)