Kenny Thompson v. Melissa Lea
2012 U.S. App. LEXIS 11473
9th Cir.2012Background
- California state prisoner Kenny Warren Thompson sought federal habeas relief under 28 U.S.C. § 2254; district court denied as time-barred.
- AEDPA provides a one-year deadline for filing and runs from finality of direct review or the end of time to seek direct review.
- Thompson’s conviction became final on July 11, 2006, after the 90-day period for seeking certiorari expired following the California Supreme Court’s denial.
- After Cunningham v. California (2007) clarified post‑conviction effects, Thompson moved to recall the remittitur to reinstate direct review; California Supreme Court granted review but deferred action.
- By granting review, the California Supreme Court reopened direct review, delaying finality; Thompson’s conviction remained nonfinal during the reopened appeal, becoming final after the California Supreme Court dismissed review on December 11, 2007 in light of Black.
- Thompson’s federal petition, filed June 30, 2008, was timely under § 2244(d)(1); the panel reversed and remanded for merits review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did the grant-and-hold reopening reset the AEDPA clock? | Thompson: Jimenez controls; grant-and-hold reopened direct review delaying finality. | State: no actual reinstatement of direct review occurred; no reset. | Yes; the clock was reset and petition timely. |
| Did the one-sentence dismissal of 112 petitions foreclose merits consideration or indicate final merits? | Thompson: dismissal implies merits were considered and relief denied on the merits. | State: dismissal was not merits-based; no reopening of direct review. | No; dismissal did not reflect merits reconsideration and did not reset the AEDPA clock. |
| Is Thompson’s § 2254 petition timely after the California Supreme Court’s Black decision sequencing? | Timeliness anchored to post-Black remittitur context and reopening. | No reopening occurred; finality not postponed to permit tolling. | Petition timely under § 2244(d)(1). |
Key Cases Cited
- Jimenez v. Quarterman, 555 U.S. 113 (U.S. 2009) (AEDPA clock can reset when state review is reopened and still capable of modification)
- Bowen v. Roe, 188 F.3d 1157 (9th Cir. 1999) (AEDPA clock begins after ninety-day certiorari period expires)
- People v. Black, 41 Cal.4th 799 (Cal. 2007) (California lead-case decision affecting remand/recall and direct review consequences)
- Randle v. Crawford, 604 F.3d 1047 (9th Cir. 2010) (limits on delaying AEDPA clock by seeking untimely appeals)
- Evans v. Chavis, 546 U.S. 189 (U.S. 2006) (avoid inferring merits from silent or vague state-court orders)
- Carey v. Saffold, 536 U.S. 214 (U.S. 2002) (varied grounds for the grounds and effect of state-court dismissals)