Brian Joseph McMONAGLE, Petitioner-Appellant, v. Don L. MEYER, Chief Probation Officer, Sacramento County, Respondent-Appellee.
No. 12-15360
United States Court of Appeals, Ninth Circuit
October 6, 2015
802 F.3d 1093
v.
Don L. MEYER, Chief Probation Officer, Sacramento County, Respondent-Appellee.
No. 12-15360.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted En Banc June 18, 2015.
Filed Oct. 6, 2015.
Brian G. Smiley (argued), Supervising Deputy Attorney General, Office of the California Attorney General, Sacramento, CA, for Respondent-Appellee.
OPINION
NGUYEN, Circuit Judge:
Brian McMonagle seeks federal habeas review of a California misdemeanor conviction for driving while under the influence of alcohol. The district court dismissed McMonagle‘s petition as untimely under the Antiterrorism and Effective Death Penalty Act (“AEDPA“), and he appealed. In order to determine the timeliness of McMonagle‘s petition, we must decide when his misdemeanor conviction became final for the purposes of AEDPA‘s one-year limitation period.
This timeliness inquiry is complicated by the overlap of California‘s procedures for direct review of misdemeanors, which often ends at the Court of Appeal, and our decision in Larche v. Simons, 53 F.3d 1068 (9th Cir.1995), which requires California misdemeanants to exhaust their state remedies by filing a habeas petition with the California Supreme Court. Larche, however, was decided before AEDPA‘s enactment and dealt with exhaustion of state court remedies, not finality for purposes of AEDPA. We nevertheless recognize that Larche creates needless confusion for California misdemeanants seeking federal habeas review, and we now overrule it.
Here, relying on Larche, McMonagle fully exhausted his state remedies before seeking federal habeas review, and filed his habeas petition outside of AEDPA‘s limitations period. Although his petition is untimely, we conclude under the particular circumstances of this case that he is entitled to equitable tolling. We therefore reverse and remand for the district court to review his petition on the merits.
I
On November 21, 2008, a California jury convicted Brian McMonagle of two misdemeanor offenses of driving while under the influence of alcohol (“DUI“) and driving with a blood alcohol level of .08% or higher. The jury also found that McMonagle‘s blood alcohol level was .15% or more, a relevant sentencing factor. See
McMonagle then requested that the appellate division certify his case to the California Court of Appeal for further review. See
On August 10, 2011, McMonagle filed a petition for federal habeas relief in the Eastern District of California. The district court granted the State‘s motion to dismiss, finding the petition to be untimely filed under AEDPA. The district court concluded that direct review of McMonagle‘s conviction in the California courts ended on February 11, 2010—when the Court of Appeal denied McMonagle‘s transfer request. Thus, his conviction became final on May 12, 2010, the close of the ninety-day period in which McMonagle could have sought further review of the decision from the United States Supreme Court—and AEDPA‘s one-year statute of limitations began to run the following day. Even allowing McMonagle statutory tolling under
McMonagle appealed to this court, and a divided three-judge panel reversed, finding McMonagle‘s petition to be timely filed. McMonagle v. Meyer, 766 F.3d 1151, 1158 (9th Cir.2014). A majority of the nonrecused active judges on our court then voted to rehear McMonagle‘s case en banc. McMonagle v. Meyer, 782 F.3d 554 (9th Cir.2015).
II
We have jurisdiction under
III
California misdemeanor appeals follow a different track than do felony appeals. By statute, misdemeanants appeal their convictions to the appellate division of the Superior Court in which they were convicted.
Here, we must decide when within the state‘s misdemeanor review process McMonagle‘s conviction became final for purposes of AEDPA: when his request for transfer to the state Court of Appeal was denied or when the California Supreme Court denied his state habeas petition. We conclude that because California declares misdemeanor convictions to be final immediately upon the denial of transfer by the Court of Appeal, direct review of McMonagle‘s misdemeanor conviction ended at this point. Therefore, his conviction became final for AEDPA‘s purposes ninety days after the denial of the transfer.
A
“As one of its many reforms, AEDPA instituted a one-year limitations period for
A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from ... [t]he date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.
“[T]he question of when a conviction becomes ‘final by the conclusion of direct review,’ thus triggering the one-year statute of limitations under AEDPA, is a question of federal law.” Summers v. Schriro, 481 F.3d 710, 714 (9th Cir.2007) (quoting
In this case, we look to California law to determine when direct review of a California misdemeanor conviction concludes. McMonagle appealed his conviction through the proper channels, appealing first to the appellate division of the Superior Court, then requesting certification to the Court of Appeal, and finally, directly asking the Court of Appeal to order transfer of his case. The Court of Appeal denied transfer on February 11, 2010. Because California law makes clear that such denial is “final immediately,”
B
McMonagle argues that Larche v. Simons, 53 F.3d 1068 (9th Cir.1995), dictates that direct review of his conviction ended when the California Supreme Court rejected his habeas petition, not when the Court of Appeal declined to accept transfer of his case.
In Larche, we held that California misdemeanants must seek habeas relief from the California Supreme Court in order to fully exhaust their claims. Larche, 53 F.3d at 1071. Larche, like McMonagle, was convicted of two misdemeanors by a California jury. Id. at 1069. His petition for federal habeas relief was dismissed by the district court due to his failure to exhaust state court remedies. Id. Relying on prior decisions that required petitioners to pursue direct appeals all the way to a state‘s supreme court, even when such appeals were discretionary, we held that “the California Supreme Court had to be given at least one opportunity to review [an] appellant‘s claims” before we could consider federal habeas relief. Id. at 1071. Otherwise, “we would deprive the California Supreme Court of any opportunity to rectify constitutional wrongs committed by its lower courts in misdemeanor cases.” Id. McMonagle correctly reads Larche as having required him to file a state habeas petition in order to exhaust his state court remedies under
Larche, however, was decided before AEDPA put in place a statute of limitations for federal habeas petitions, and thus unsurprisingly discusses only exhaustion. But exhaustion and finality are distinct concepts for purposes of AEDPA. Exhaustion occurs “at the end of state-court review,” Lawrence v. Florida, 549 U.S. 327, 333 (2007), which can include collateral review for certain types of claims, see, e.g., Martinez v. Ryan, 566 U.S. 1, 13 (2012) (noting that Arizona requires ineffective assistance of counsel claims to be raised in state collateral proceedings). “Finality occurs when direct state appeals have been [completed] and a petition for writ of certiorari from [the United States Supreme Court] has become time barred or has been disposed of.” Greene v. Fisher, 565 U.S. 34, 44 (2011) (emphasis added). It is when a direct appeal becomes final that AEDPA‘s 1-year statute of limitations begins running.
Although Larche did not discuss finality, it created undue confusion for misdemeanant habeas petitioners like McMonagle, particularly in the wake of AEDPA‘s enactment, because some of Larche‘s language conflated collateral and direct review of misdemeanors. For example, Larche wrongly equated the opportunity for habeas review of misdemeanors in the California Supreme Court with the requirement that felony direct appeals be appealed all the way to that same court. See 53 F.3d at 1071 (citing McNeeley v. Arave, 842 F.2d 230, 231 (9th Cir.1988), and Tamapua v. Shimoda, 796 F.2d 261, 262 (9th Cir.1986), abrogated on other grounds by Duncan v. Henry, 513 U.S. 364 (1995)). This suggested that misdemeanor habeas petitions like McMonagle‘s were properly construed not as collateral review proceed-
Moreover,
Having overruled Larche, going forward exhaustion and finality for misdemeanors will largely coincide at the California Court of Appeal. When the Court of Appeal denies transfer, the petitioner will have exhausted his state court remedies,1 and AEDPA‘s limitations period will begin to run ninety days later or upon the resolution of a petition for writ of certiorari by the United States Supreme Court, if one is filed.
IV
Although we conclude that McMonagle‘s habeas petition was filed outside of AEDPA‘s one-year limitation period, that conclusion does not end our inquiry. Equitable tolling may be available “[w]hen external forces, rather than a petitioner‘s lack of diligence, account for the failure to file a timely claim.” Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir.1999). “Equitable principles dictate that we toll AEDPA‘s statute of limitations in the rare case where a petitioner relies on our legal-
REVERSED AND REMANDED.