Velasquez v. Kirkland
2011 U.S. App. LEXIS 9502
| 9th Cir. | 2011Background
- Velasquez was convicted of first-degree murder in California and sentenced to 60 years to life; direct appeal affirmed and California Supreme Court denied review in 2003.
- His conviction became final on February 10, 2004, after which he did not seek certiorari to the U.S. Supreme Court.
- Velasquez filed serial state-court habeas petitions beginning February 4, 2005, with petitions in the superior court, court of appeal, and California Supreme Court.
- The state courts denied these petitions, with denials stating only that the petitions were denied, without explicit timeliness rulings.
- Velasquez filed a federal habeas petition in March 2007, arguing AEDPA tolling (statutory and equitable) should apply during his state petition delays.
- The district court dismissed the federal petition as untimely, ruling no statutory or equitable tolling.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether delays in state petitions toll AEDPA time | Velasquez seeks statutory tolling for time his state petitions were pending. | Kirkland contends delays are unreasonable under California law and not tollable. | No statutory tolling due to unreasonable state-delay periods. |
| Whether California delays were timely under state law | Delays were within a reasonable time under California standards as interpreted by Evans and Saffold. | Delays exceeded reasonable periods (30–60 days benchmark) and were untimely absent justification. | Delays deemed untimely; no tolling for statutory period. |
| Whether equitable tolling applies | External circumstances prevented timely filing; extraordinary circumstances warranted tolling. | No external, extraordinary circumstances; delays resulted from counsel's actions. | No equitable tolling; petition untimely. |
Key Cases Cited
- Evans v. Chavis, 546 U.S. 189 (2006) (timing of state post-conviction review tolling)
- Carey v. Saffold, 536 U.S. 214 (2002) (California timeliness guidance for state review)
- Saffold, 536 U.S. 214 (2002) (precedent on federal timeliness review after state disposition)
- Chaffer v. Prosper, 592 F.3d 1046 (9th Cir. 2010) (unreasonable gaps between state petitions hinder tolling)
- Banjo v. Ayers, 614 F.3d 964 (9th Cir. 2010) (unexplained delays of certain length deemed unreasonable)
- Waldrip v. Hall, 548 F.3d 729 (9th Cir. 2008) (reaffirmed unreasonable-delay analysis for tolling)
- Holland v. Florida, 130 S. Ct. 2549 (2010) (equitable tolling standard and extraordinary-circumstance requirements)
- Harris v. Carter, 515 F.3d 1051 (9th Cir. 2008) (external force requirement for equitable tolling)
- Waldron-Ramsey v. Pacholke, 556 F.3d 1008 (9th Cir. 2009) (external-circumstance consideration for tolling)