Lead Opinion
Concurrence by Judge REINHARDT;
Concurrence by Judge BYBEE
OPINION
This сase concerns the timeliness of Freddy Curiel’s federal habeas petition under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). We hold that the district court erred in dismissing Curiel’s habeas petition as untimely.
In March 2006, a California jury convicted Curiel of special circumstances first-degree murder and street terrorism. Cu-riel was sentenced to life in prison without the possibility of parole, plus twenty-five years.
Curiel appealed his conviction to the California Court of Appeal, which affirmed, and to the California Supreme Court, which denied his petition for review on June 11, 2008. Curiel’s conviction became final on September 9, 2008, after the time for Curiel to file a petition for a writ of certiorari in the United States Supreme Court lapsed. 28 U.S.C. § 2244(d)(1)(A).
On May 12, 2009,
On March 8, 2010, Curiel filed a federal petition for habeas corpus pursuant to 28 U.S.C. § 2254 in federal district court. The government moved to dismiss Curiel’s ha-beas petition as untimely because it was filed more than one year after his conviction became final. In opposition, Curiel argued that AEDPA’s statute of limitations should be statutorily tolled for the period during which his state habeas petitions were pending, and also that he was entitled to equitable tolling due to trial counsel’s alleged delay in returning his client file.
Accepting the findings and recommendation of the magistrate judge, the district court determined that Curiel was not entitled to statutory tolling for the three months that his habeas petitions were pending in the California Superior Court or the Court of Appeal because untimely petitions do not toll AEDPA’s limitations period. The district court observed that the Superior Court had explicitly imposed an untimeliness bar in denying Curiel’s first habeas petition, and held that the Court of Appeal implicitly adopted the Superior Court’s reasoning when it denied Curiel’s second petition without explanation. The district court did, however, toll Curiel’s federal filing deadline for the pen-dency of his petition in the California Supreme Court, concluding that the Supreme Court’s citations to Swain and Duvall indicated that the court had denied Curiel’s third petition based solely on the deficiency of his pleadings. Nevertheless, tolling the clock for the period that Curiel’s petition was before the California Supreme Court, alone, was insufficient to render Curiel’s federal petition timely. Therefore, after rejecting Curiel’s equitable tolling ar
Curiel timely appealed, and we issued a certificate of appealability as to the timeliness of Curiel’s federal petition for habeas corpus.
STANDARD OF REVIEW
We review de novo a district court’s denial of a habeas corpus petition. Hurles v. Ryan,
DISCUSSION
AEDPA requires a state prisoner to file a federal habeas petition pursuant to 28 U.S.C. § 2254 within one year of the date on which his conviction becomes final on direct review, unless the petitioner qualifies for statutory or equitable tolling. Id. § 2244(d)(1)(A). In Curiel’s case, AEDPA’s one-year statute of limitations lapsed on September 9, 2009. See id. Curiel filed his federal petition on March 8, 2010. Thus, for his petition to be timely, Curiel must demonstrate that he is entitled to at least six months of tolling.
I.
“[A] properly filed application for State post-conviction or other collateral review” tolls AEDPA’s statute of limitations for the pendency of the state court proceedings. Id. § 2244(d)(2). A habeas petition that is untimely under state law is not “properly filed.” Pace v. DiGuglielmo,
In California, courts “appl[y] a general ‘reasonableness’ standard” when determining whether a habeas petition was timely filed. Carey v. Saffold,
II.
The California Supreme Court rules on a “staggering” number of habeas petitions each year, generally by issuing “unelabo-rated ‘summary denials.’ ” Walker v. Martin,
[W]hen respondent asserts that a particular claim or subclaim ... is untimely, and when, nevertheless, our order disposing of a habeas corpus petition does not impose the proposed bar ... as to that claim or subclaim, this signifies that we have considered respondent’s assertion and have determined that the claim or subclaim is not barred on the cited ground....
In re Robbins,
“California courts signal that a habeas pеtition is denied as untimely by citing the
We understand the California Supreme Court’s denial of a habeas petition with citations to Swain and Duvall in conjunction as, “in effect, the grant of a demurrer, i.e., a holding that [the petitioner] ha[s] not pled facts with sufficient particularity.”
III.
AEDPA directs federal courts to train their attention on the particular reasons why each state court that considered a prisoner’s claims denied relief. When more than one state court has adjudicated a claim, the federal court analyzes the last “reasoned” state court decision. Barker v. Fleming,
When at least one state court has rendered a reasoned decision, but the last state court to reject a prisoner’s claim issues an order “whose text or accompanying opinion does not disclose the reason for the judgment,” we “look through” the mute decision and presume the higher court agreed with and adopted the reasons given by the lower court. Ylst,
We have no cause to treat a state court’s summary order with citations as anything but a “reasoned” decision, provided that the state court’s references reveal the basis for its decision. Cf. Ylst,
The California Supreme Court’s citations to Swain and Duvall offer equally adequate insight into the court’s reasoning to treat its opinion as the last reasoned decision on the timeliness of Curiel’s state habeas petitions. To the extent that a denial accompanied by citations to Swain and Duvall is the equivalent of a demurrer for pleading inadequacies, the California Supreme Court’s decision indicates that the court must have found Curiel’s petition timely, because a demurrer is irreconcilable with the lower courts’ untimeliness determinations. A dismissal without prejudice for failure to plead with specificity
Further, Curiel presented the same claims to the California Supreme Court that he had in his first two habeas petitions, along with the Superior Court’s decision denying relief on untimeliness grounds. Thus, the California Supreme Court was aware that the lower courts had already denied Curiel’s first two petitions for untimeliness. If it agreed with those courts’ conclusions, the California Supreme Court could have simply issued a postcard denial without explаnation or citation, or denied Curiel’s petition by citing Robbins and Clark. See Martin,
The Supreme Court has admonished us in the past not to assume that a California court found a state habeas petition to be timely from the court’s silence on the question. Chavis,
IV.
Because the California Supreme Court’s timeliness holding prevails, Curiel’s state habeas petitions must be deemed properly filed for their entire pendency in state court for purposes of tolling AEDPA’s statute of limitations.
CONCLUSION
For the foregoing reasons, we hold that the district court erred in dismissing Cu-riel’s federal habeas petition as untimely. Because Curiel timely filed his federal ha-beas petition once we account for statutory tolling, we do not reach the question of equitable tolling.
REVERSED and REMANDED.
Notes
. In its motion to dismiss Curiel’s federal habeas petition, the government agreed that “in combination with the citation to Duvall, the Ninth Circuit has interpreted citations to Swain to indicate that a petition was denied for failing to state claims with the requisite particularity.”
. California’s collateral review system differs from that of other States in that it contemplates that a prisoner will file a new "original” habeas petition in each court in which he seeks relief. Saffold,
. The district court was correct in its interpretation of the California Supreme Court's citation to Swain and Duvall. The district court erred only by tolling the statute of limitations solely for the time during which Cu-riel’s last petition was before the California Supreme Court, rather than for the entire duration of Curiel's state collateral review proceedings. See Campbell,
. During the pendency of these en banc proceedings, the United States Supreme Court decided Kernan v. Hinojosa, - U.S. -,
Concurrence Opinion
concurring:
I concur fully in Judge Murguia’s opinion for the court. I also agree generally with Judge Bybee that our decision-making would be aided significantly if the California Supreme Court were to explain more clearly the basis for its summary denials. Even more important, I would urge the California Supreme Court to specify in its opinions whether it is deciding on the merits any or all of the questions of federal constitutional law that are raised in the case before it, and identify the constitutional basis of all such claims that it is denying, if any.
I write separately, however, to urge the California Supreme Court to take a slightly different approach to questions of federal constitutional law in view of recent decisions of the United States Supreme Court that have placed an almost impossible burden on state courts: to be the final decision-maker in an overwhelming number of cases involving fundamental constitutional rights of criminal defendants. Although rеcognizing that the California Supreme Court “disposes of close to 10,000 cases a year, including more than 3,400 original habeas corpus petitions,” Harrington v. Richter,
Hamstrung as the federal courts now are as a result of these post-AEDPA decisions, state supreme courts have become, at least for the time being, the last safeguard of the United States Constitution in the vast majority of criminal cases, and the last guardian against constitutional violations resulting from deliberate actions of state and local law enforcement and other
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It is no secret that the United States Supreme Court has severely limited the ability of federal courts to grant habeas relief ever since the passage in 1996 of the Antiterrorism and Effective Death Penalty Act (“AEDPA”). It has done so by interpreting that statute in exceedingly narrow, and in my view, excеedingly unfortunate, ways. AEDPA, which was adopted at the urging of President Bill Clinton in the immediate wake of the Oklahoma City bombing — purportedly as a means of com-batting domestic terrorism, but coincidentally during a presidential election year— prohibits federal courts from granting ha-beas relief on issues that state courts have addressed, unless the state court decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d). Although AEDPA itself limits federal review of state convictions, the Supreme Court’s increasingly restrictive interpretation of that provision has gone well beyond the face of the statute to virtually eliminate meaningful federal review.
The Supreme Court’s restrictions on the ability of federal courts to protect the constitutional rights of criminal defendants in state proceedings began in 2000 with its decision in Williams v. Taylor.
Next, the Supreme Court held that if the state court’s rejection of the petitioner’s claim is “unaccompanied by an explanation,” federal courts must attempt to conjure up a plausible, though not necessarily correct, hypothetical basis for the state court’s decision, and, if they can, that will suffice. See id. at 98-99,
This is only a small sample of the Supreme Court’s restrictive habeas jurisprudence, and its drive toward eliminating federal review does not appear to have yet reached its limit. In Cullen v. Pinholster, the Supreme Court held that federal courts must not only defer to all “reasonable” though erroneous state court decisions, but that in determining whether a decision was reasonable, federal courts must ignore all evidence that had not been presented initially to the state court.
Ayala is illustrative of the frustrations many federal jurists have with the current habeas system. As the Supreme Court has repeatedly recognized, state appellate courts face heavy caseloads that often prevent them from fully analyzing defendants’ claims of federal constitutional violations or even from explaining their reasons for denying them. See Williams,
$ ^ ^
Clearly, the state courts are not to blame for this unhappy state of constitutional affairs. One can only sympathize, for example, with the plight of the California Supreme Court with its massive potential caseload and severely-strained resources. Nevertheless, perhaps what was not so long ago the most innovative court in the nаtion will once again be able to provide
The Supreme Court’s extreme deference to state court decisions in AEDPA cases -is due, primarily to its concern about comity and federalism. The states may, however, be able to accommodate that concern by making some adjustments to their decision-making process. Perhaps the Court’s recent decisions limiting federal habeas review will inspire the California Supreme Court to develop creative methods of alleviating additional miscarriages of justice. After all, the states are the laboratories of experimentation, even in today’s judicial systems. One approach to attempting to ensure the needed added protection of constitutional rights might be for the California Supreme Court to experiment with certifying individual dispositions which it believes should not be afforded the extraordinary deference provided by AED-PA because it or the state court of appeal was compelled to reject the constitutional challenge without conducting a full analysis or preparing a thorough written opinion. Similarly, the state courts of appeal could certify some of their decisions for non-AEDPA review for whatever reasons they deem appropriate. Additionally, the California Supreme Court could certify particular categories оf cases which it believes would benefit substantially from such federal review, for example, death penalty cases, cases involving sentences of life without parole, certain types of cases involving youthful offenders, or even cases in which the last reasoned decision was made by a superior court. Certainly such a system would be preferable to limiting federal courts to correcting “extreme malfunctions” in the state court system and ignoring all violations of the rights of individuals that are non-systemic or about which there is no possibility that a reasonable judge could disagree.
I cannot predict whether the United States Supreme Court would accept a system of certification by state courts and thereby permit full and fair federal review of cases that in the judgment of the state courts warrant such treatment. I would hope, however, that such certifications would be recognized if only out of respect for the concerns of the affected states. Doing so would certainly be consistent with the Court’s interest in comity and federalism and would encourage the state and federal systems to work together once again to enforce the Constitution in a just and orderly manner, an objective surely to be desired by all.
In sum, as of now, the role of the federal courts- in habeas cases has been eviscerated and federal judges have been compelled to say (perhaps in contravention of their oath of office): “I know this result is unfair, unjust, and unconstitutional, but I have been told that I must nevertheless defer to the view of the state courts— courts that may have had neither the time nor resources to fully review the constitutional errors involved.” One can hope, however, that the overwhelmed state courts, recognizing these facts, will find ways to make certain that individuals who may not have received fair trials or just sentenсes in the state court system are treated as the Constitution envisions — that they are afforded a full and fair review of their constitutional claims by courts fully staffed
. This last holding is indeed puzzling. The Supreme Court provided no guidance with respect to how one might determine whether a jurist is, in fact, “fairminded.’' Indeed, as Justice O’Connor noted in Williams, defining “unreasonable application” by reference to reasonable jurists is not only “of little assistance to the courts that must apply” AEDPA, but is also "misleading.” See Williams, 529 U.S. at 409-10,
. One narrow exception to this constraint exists. Federal courts may consider new evidence in order to determine whether a peti
. As Justice Sotomayor eloquently explained in her dissent, "secret decisions based on only one side of the story will prove inaccurate more often than those made after hearing from both sides.” Ayala,
. As any student of the law is aware, dissent is a fundamental part of the legal system, and “fair-minded debate” is present in nearly ev-, ery, if not every, case.
Concurrence Opinion
concurring:
I was a member of the three-judge panel that was first assigned this case. There, I joined the panel’s decision that reached a different result from the one we reach as an en banc court today. See Curiel v. Miller,
I
I write separately to express my frustration that communication between the California Supreme Court and our court over the proper interpretation of California state habeas decisions has devolved into a series of hints that the California Supreme Court obliquely telegraphs and that we struggle to decipher. Unfortunately, I am not voicing an original or unique complaint — our court has been making its concerns with California’s habeas practice known for the better part of half a century. See Castro v. Klinger,
However hamstrung by our own ignorance we may be, today we take our best shot at divining the meaning of the California Supreme Court’s actions when it denies a state habeas petition with a few bare case citations. References to Swain and Duvall — we’re pretty sure
In the face of this complicated tangle of bare citations without any accompanying explanation, what is a conscientious federal court — espеcially one disposed both by nature and statutory command to defer to state courts on matters of state law — to do? Unfortunately, unless we discover a Rosetta Stone in the San Francisco Bay that helps us crack the California Supreme Court’s habeas code, I worry that cases like this one will reoccur with some frequency and that federal courts will be forced to trot out their best Alan Turing impressions on a regular basis.
The best we can do — and what the court does today — is give our best guess as to what the California Supreme Court means and proceed on that assumption, understanding that “California, of course, remains free to tell us if, in this respect, we were wrong.” Evans v. Chavis,
My complaints about the burden that the California Supreme Court’s unnecessarily opaque habeas system have focused, selfishly, on the substantial costs it imposes on the resources of this court. I have now sat on this case twice, joined two publishеd decisions, and changed my mind once. I have been perturbed and confounded by this case; but this is, after all, my job. I know that many of my colleagues are similarly frustrated in their efforts to decipher California’s code. On reflection, however, I have a much deeper concern that the costs visited on this court pale in comparison to the costs that the California Supreme Court’s imprecision imposes on its own citizens and state government, because they have no more clue what the California Supreme Court means than we do.
Take, for example, Curiel. Acting pro se, Curiel did not pick up on the court’s suggestion that his state habeas claims were pleaded with insufficient particularity, because rather than beefing up his petition and re-filing it in state court — which Swain counsels he might have been able to do, see In re Swain,
For ’ its part, the California Attorney General’s Office appears similarly befuddled. The state argued that the “California Supreme Court’s citation to Swain was an explicit finding that the petition was ... untimely,” and that the Court had “unequivocally found Curiel’s petition delayed.” Appellee’s Br. 22, 26 (emphasis added). For the reasons explained in our opinion today, it seems thаt the “explicit” was, in fact, unclear and the “unequivocal,” well, equivocal. During oral argument, the following exchange occurred between the panel and the advocate for the state:
Judge Hurwitz: But your answer to my question is yes, that the California Supreme Court has two different ways of telling us that a petition is untimely. One is by citing Robbins, correct?
State’s Attorney: I’d say three, but yes, Robbins.
Judge Hurwitz: Three different ways to tell us that it’s untimely?
State’s Attorney: Yes.
*880 Judge Friedland: Why would they choose one versus another?
State’s Attorney: That might be a good reason for certification [to the California Supreme Court] because I’m not exactly sure.
Oral Argument at 21:46. And then counsel went further, pointing out that “there is a fundamental difficulty with habeas in California and that is it doesn’t result in reasoned decisions so it doesn’t accrete like the common law does to solve problems.” Id. at 34:32. In the span of just a few minutes, counsel for the State of California, representing the very office charged with ensuring that the legal dictates of the California Supreme Court are fairly enforced, highlighted both the procedural and substantive shortcomings of that court’s current approach.
Ill
We are well aware of the “staggering number of habeas petitions” the California Supreme Court must address each year. Martin,
a system in which there is sensitivity to the legitimate interests of both State and National Governments, and in which the National Government, anxious though it may be to vindicate and protect federal rights and federal interests, always endeavors to do so in ways that will not unduly interfere with the legitimate activities of the States.
. I recognize that I am writing against a long history of conversations between our court and the California Supreme Court over precisely these kinds of concerns. Perhaps changes in the composition of that court will give it the opportunity to rethink how it disposes of its summary habeas docket.
. We’ve been рuzzling over these same two citations for more than a decade. See Seeboth v. Allenby,
. Unfortunately, even this conclusion might be shaky. In an amicus brief submitted to the Supreme Court in Walker v. Martin, the Habeas Corpus Resource Center performed a case study of the 157 habeas petitions denied by the California Supreme Court on September 11, 2002. See Br. for Habeas Corpus Resource Center as Amicus Curiae in Support of Respondent at 18, Walker v. Martin,
. Alternatively, the California Supreme Court might consider promulgating some sort of decisional key that lays out the meaning of various combinations of citations, and I note that the court has set out something similar in at least one past decision (though at a higher level of abstraction and nearly twenty years ago). See In re Robbins,
. But then again, maybe Curiel's state habeas petition would be timely because who knows what California's “within a 'reasonable time’ " standard for timely filing means? Evans,
. From 2011 to 2015, nearly one thousand habeas appeals from the four federal districts in California were fully briefed before this court (986 to be exact). That number does not include the multitude of petitions filed in our court that we dismiss without full briefing due to jurisdictional defects or because they are successive.
. See Orange Cty. Dep’t of Educ. v. Calif. Dep’t of Educ.,