*1 Teague in this waived defense has Jackery WHITE, Petitioner, B. there Although we noted
case ”X
yet
has
decided
“[t]he
v.
may
Teague
a state
waive the
whether
KLITZKIE, Respondent.
Robert
id.,
it,”
timely to
failing
raise
defense
No. 00-16347.
dispose
has since declined to
the Court
ground that a “new
on the
rule” was
ease
Appeals,
United States Court
petitioner[State warden]
involved “because
Ninth Circuit.
Teague
raise a
defense
the lower
did not
Argued and Submitted Nov.
courts or
certiorari.”
Moran,
509 U.S.
397 n.
Godinez
Filed Feb.
(1993)
2680,
113 S.Ct.
(citations omitted). even Accordingly,
though we the discretion to consider claim Teague raised first Boardman, rehearing, See 1536-37, at we decline to do so lawyer
here where State’s declined Teague, panel inquired after the
raise even directly argument oral
of him at whether
the State wished to do so. See Garceau v. F,3d n. 1
Woodford, (explaining circumstances, “1
that under the reluctant-
ly inappropriate conclude that it is to ana- Teague bar
lyze applies”) J.,
(O’Scannlain, dissenting).
Judges Tashima and vote to Thomas
deny panel rehearing grant it.
Judge O’Scannlain votes The
panel deny votes for rehear-
ing en banc. The full has been rehearing
advised of the en no judge
banc and of the court has re-
quested a vote on banc rehearing. en See 35(b). P. R.App.
Fed. panel and the rehearing banc rehearing en are denied. *2 Fisher, Honolulu, HI,
Elizabeth A. petitioner. Ada, Deputy Attorney Tricia R.S. Gen- eral, GU, Hagatna, respondent. THOMPSON, O’SCANNLAIN, Before BERZON, Judges. Circuit THOMPSON; Opinion by Judge Dissent by Judge BERZON THOMPSON, Judge. R. Circuit DAVID White, Jackery prisoner serving B. by Territory imposed sentence Guam, the district court’s appeals dismiss- al of his corpus filed under 28 2254. The U.S.C. district court determined that White’s procedurally tion was barred and unex- hausted, request for a cer- and denied his appealability. tificate of We appealability, certificate of limited to the prop- of “whether the district court issues erly based on failure dismissed default.” procedural to exhaust and argument, In advance of oral it became that there was a threshold issue apparent of whether White’s all jurisdiction over at that time had of limita- which one-year statute barred 2244(d), courts of Guam ground from the local appeals tions Upon in the district 1424-3.1 to 48 U.S.C. respondent pursuant asserted counsel, for and how- appointed We asked of his request and in this court. supplemental ever, was dismissed parties appeal from the direct received White’s *3 19,1995. was also The issue December briefing prejudice on that issue. on with argument. at oral fully explored 26, 1994, filed a August White On of limitations the statute Although the for a writ of habeas tion of in the certificate not included issue was alleged He that of Guam. Superior Court the district can affirm appealability, we knowing and volun- was not guilty plea his by the supported any ground court on of had a conflict tary, because his counsel Terr, Franklin record. See alleged that his counsel He also interest. Cir.2000). 1098, We con n. his and as a result of incompetent, was petition that clude White’s conflict, and White incompetence counsel’s of limita one-year statute barred the of counsel. denied effective assistance was 2244(d), statutory of 28 U.S.C. tions coun- appointed Court Superior The Guam did 28 U.S.C. tolling under evidentiary an hear- for White and held sel filed, and timely petition not render the 12, 1997, Superior May the Guam ing. On equitable tolling. not entitled to White is find- petition, Court denied White’s 1104, 1107 Prunty, 187 F.3d Miles v. Cf. conflict-free and ing that his counsel was (9th Cir.1999). Accordingly, we affirm the was entered competent, plea and his of White’s district court’s dismissal voluntarily. knowingly and into grounds upon the reaching without counsel, assistance of White With the it. the court dismissed district of his habeas appealed the denial again He Supreme Court of Guam. not know- alleged guilty plea that his was 13, 1993, pleaded White August On his counsel had ing voluntary and because of Guam guilty Superior the Court alleged He also a conflict of interest. allega- robbery special one count of with Superior the Court should Guam robbery was committed tion that the for the writ because his prosecution of he on release filed on return was not government’s 1, burglary charges. On October earlier of Guam treat- time. The Court to a total term was sentenced White appeal original as an ed White’s robbery on the con- years years of 30 —-10 December corpus. On viction, resulting years another 20 16, 1998, of following a de novo review mo- special allegation. from the White’s claims, of White’s was denied tion to reduce his sentence denying his filed an Guam Superior Court. merits. on the directly appealed his sentence thereafter, shortly White contends Division of the United States Appellate 28,1998, Guam, to file attempted of on December District Court for District Energy and Natural jurisdic- the Senate Committee Appellate 1. Division maintained on Natu- and the House Committee appeals until Resources tion over local Guam, Supreme Court April ral Resources on was established on Court of Guam of http://www.justice.gov.gu/su- available Report Islands Committee of Pacific (2001). JudCouncil.pdf preme/Report9thCir the Ninth Circuit to the Judicial Council for a writ of certiorari with this date his state conviction became final. contains a “Notice of court. The record White’s conviction Appeal,” signed by White and dated De- became final on December when Although cember this document he appeal. dismissed his direct See 28 captioned filing 2244(d)(1) (statute in the U.S.C. of limitations Guam, the text indicates that it runs from “the conclusion of direct review “appeal[ an to the United States Court of review”). ] seeking or the time for such Appeals for the Ninth Circuit on a Peti- Because White’s conviction became final ” (empha- tion for a Writ of Certiorari .... enactment, prior to the AEDPA’s the ear- original). sis White contends that he one-year nest date the statute limita- intended this document to be a tions for federal habeas certiorari, this court for a writ of and that *4 would begun to run was the date the 28, on December 1998 he sent the docu- effect, 24, AEDPA April went into 1996. ment “to the Ninth Circuit Galaza, 1003, See Nino v. 188 F.3d through Department the Guam of Correc- (9th Cir.1999). date, however, On tions Officials.” The document was never had a petition White for a writ of habeas filed with this court. White sent a follow- corpus pending Superior before the Court 1999,2 up letter October and received in Thus, of Guam. the statute of limitations response deputy a letter from a dat- clerk pursuant further tolled to 28 U.S.C. 2, 1999, stating ed November that White 2244(d)(2), provides tolling which had no matter in this court. time during properly “[t]he which 13, 2000, White, March proceeding On for State or oth- se, pro filed a er collateral ... pending.” 2254, corpus, pursuant the United States District Court for the The statute of limitations remained District of Guam.3 tolled under 28 U.S.C. pe-
The district court dismissed White’s
sought
White
a writ of
habeas
tition,
appeal
and this
followed.
through
procedures.
Guam’s territorial
Nino,
See
II
procedures,
presented
with those
White
Prior to the
of
enactment
the Antiter-
the Superior
habeas
rorism and
Penalty
Effective Death
Act of Guam and
then to the
Court of
(“AEDPA”),
effectively
there was
no limit
pe
Guam.
latter court denied White’s
16,
during
on the time
which a
tition
prisoner
state
on December
1998. That denial
could file a federal
for a
statutory tolling
writ of
ended
of the statute of
AEDPA,
corpus.
Under the
how-
limitations under
and the
ever,
prisoner
a state
must file
one-year
his federal
of
began
statute
limitations
corpus petition
year
within one
run.4
of
White did not file his federal habeas
2. White contends this was his second follow-
der 28 U.S.C.
2254 to the same extent as
letter,
Salas,
up
prisoners.
and that he sent an earlier letter
See
v.
Aldan
718 F.2d
889,
Cir.1983).
inquiring
(9th
appeal
about the status of his
Our reference to
April
part
prisoners
That earlier
letter is not a
of
includes
terri-
record,
nothing
prisoners
and there is
to indicate to
torial
such White.
whom the letter was addressed.
argues
4.White
that the
previously recognized
3. We have
that Guam
Guam's decision was not final until the man-
26,
prisoners may seek
January
federal habeas relief un-
date was entered on
How-
of
limitations
District Court
statute
in the United States
2244(d)(1)(A),
fundamentally
different
13,
2000. White’s
until March
long
how
therefore,
one-year
from
statute
tion,
barred
of limitations is tolled under
unless he is
of limitations
entitled
statute
Frank,
310,
Nara v.
264 F.3d
318-19
See
tolling.
period
additional
to some
(3d Cir.2001)
statute of
(holding
an addi-
argues
is entitled to
he
White
is not
tolled under
16,
days
from December
tional 90
during
prisoner
a state
1998,
of Guam
the date the
a petition
have filed
for a writ of
could
be-
petition,
territorial habeas
denied his
with the
States
certiorari
United
during
90-day period
could
cause
Court);
Ault,
238 F.3d
Snow
for a writ of certiorari
have filed
(8th Cir.2001) (same); Isham v.
1035-36
Court.
the United
with
States
Cir.2000)
Randle,
that the
Alternatively,
argues
(same);
Schomig, 233
Gutierrez v.
F.3d
statutory tolling
was extended
(7th Cir.2000) (same);
490, 492
Ott v.
28, 1998, when he
time between December
Johnson,
(5th Cir.1999)
for a writ of
attempted
to file a
(same).
agree
We
with these decisions.
with this
and November
The statute of limitations is tolled under
when he learned that his
had
*5
2244(d)(2) only
during
time
“[t]he
argu-
each
been filed.
address
never
We
a
properly
application
which
State
inment
turn.
collateral review
other
for the
White relies on Wixom
...
A
for a writ of
pending.”
statutory
to
proposition
he is entitled
Supreme
certiorari
United States
2244(d)(2)
under
for the time dur
tolling
simply
not an
application
state
ing
sought
by
which he could have
review
Catoe,
Crawley v.
257 F.3d
review.
a
in
a
writ of certiorari
(4th Cir.2001)
(citing
399
Duncan Walk-
That
Supreme Court.
reli
United States
er,
531 U.S.
121 S.Ct.
148
Wixom, we
misplaced.
ance is
In
held
(2000)).
spent pur-
L.Ed.2d 454
The time
prisoner’s
that a state
conviction becomes
a
suing such
writ
is not “time
final,
running of
so as to
commence
attempt-
a
during
prisoner
which
of
limitations
under
statute
through
pro-
ing,
proper use of state court
2244(d)(1)(A),
“the conclusion of
upon
cedures,
to
court
reme-
exhaust state
expiration
direct review or
of
time
Nino,
1006;
...”
dies.
183 F.3d at
also
Wixom,
seeking
such
264
review.”
(10th
Boone,
182
1156
Rhine v.
F.3d
at
(quoting
F.3d
28 U.S.C. Cir.1999). Thus,
is not entitled
White
2244(d)(1)(A)).
statutory tolling
under
recog
As our
during
sister circuits have
he contends
could
nized,
a
a
of when
conviction have filed
for a writ of certiorari
final,
Court,
running
so
in
Supreme
becomes
as to start the
of
the United States
ever,
appellate
providing
it is the
the state
decision of the Su-
“[a]
decision of
court,
entry
than
act
rather
the ministerial
of
preme
days after fil-
Court becomes final 30
mandate,
signals
of the conclusion of
during
ing,” extended
which the
the time
Washington,
review. See
Wixom v.
F.3d
of
tolled
statute
limitations was
under
(9th Cir.2001).
897-98
Our
in
days.
has
for those 30
Guam
no
Mitchell,
Bunney v.
927 application being disposition petition.” consid- court of such As 2244(d)(2): § interpreting court or Duncan noted in appeal by supreme ered on a state on “It is well settled that by Congress the United State Court where Thus, reading particular language includes in certiorari. unlike one section Duncan, § in rejected in the inter- of a statute but omits it another section Act, full suggest gives meaning generally presumed I of the same it is pretation “State,” recognizes Congress intentionally pur- the word but that the acts and and, in in the posefully disparate United States inclusion and Court— (internal circumstances, Id. at 2124 unique quota- these court— exclusion.” (or territorial) omitted). can in- Congress’ consider cases tions decision to Otherwise, they language when raise federal issues. clude the “until the final State disposition petition” what is the United States Court court of such in 2263(b)(2), § § hearing when considers state habeas but to omit it in Congress certiorari? Not an indicates that intended the toll- ing or other collat- period end with “the final State § in Only pro- disposition” eral review. 28 U.S.C. 2254 court situations controlled review, 2263(b)(2), § plenary by vides for such and while but to long continue for as judges can entertain initial the application pending” as “is in situations (see 2254(a)), § petitions U.S.C. controlled they doing they that is not what are when 2263(b)(2) That does end once consider a federal under their leads, I recog- the State is finished in jurisdiction origi- a case that nize, to all the confusion discuss above in nated state court. regarding petitions in places two Still, reading This is confirmed at once. as to that section it is 2263(b), intended, special period Congress pre- certain that so capital “opt-in” sumably in traditional long cases states. Under avoid the de- statute, lays penalty the limitations period imposing ex- the death also, pressly period filing perhaps, “opt-in” leaves out the because the rules petition for provide appointment writ of certiorari after state of counsel for over, habeas; lawyers, unrepresent- court direct a different rule unlike 2244(d). applies prisoners, expected than ed can be to know U.S.C. 2263(b)(1), Washington, double-filing Wixom about rules. See U.S.C. (9th Cir.2001). 2261. That there is no such clear lan- 2263(b)(2), tolling period, guage only “pend- but U.S.C. turn, includes, first, ing” suggests the time be- reference that a difference intended, just tween the for certiorari was difference was until disposition clearly regard begin- its intended with *8 and, second, ning the “from the date on date for the statute of limitations 2263(b)(2). § petition post-conviction which the first between until review or other collateral relief the indeed, case, The current illustrates that final disposition peti- State court such “pending” a state habeas is still tion.” prisoner when a files a for a writ 2263(b)(2) Appel- §in language concerning of certiorari. Under Guam Rule of 28(c), petitions filing for state habeas differs late Procedure the of a writ of 2244(d)(2), §in from that contained certiorari to the Ninth Circuit or the Unit- automatically phrase Supreme omits the “until the final State ed States 928 if premise peti- Court from the that even there was a
prevents-
court,
tion filed in
that would
prisoner’s
terri-
issuing its mandate
words,
why
“application
matter —I cannot see
In
petition.
torial
other
for State
or other collateral
explicitly recognizes the un-
Guam’s rule
“pending.”
review” is not still
fact that a habeas
avoidable
not final and in that sense
in its courts is
2. There
one
other matter on which
decision”,
pending “awaiting
remains
majority.
I differ with the
—
Footnote
(7th
Dictionary,
Black’s Law
majority
opinion
reaches
we
ed.1999)
prisoner
has lost the
address,
—until
need not
in an area in which
it.
ability
higher
to have
confusing.
Ninth
law is
Circuit
Additionally,
thinking
of other cir
Whether or not the
interpreta
cuits is not as conclusive on the
Guam’s decision became final before or
opinion sug
tion of
as the
entry
after the
of the
January
mandate on
decided,
gests.
26,
The Third Circuit
albeit
not matter to
does
the outcome of
that
analysis,
prison
with no
when state
this case.
did not file
following
er files a writ of certiorari
until March
relief,
for state
denial of
year
more than a
later.
So his
the statute of limitations is tolled under
tion would
if
have been time-barred even
2244(d)(2).
Horn,
v.
right
Morris
January
about the
26 date.
(3d
Cir.1999);
see also Nara v.
Footnote 4 nonetheless cites to Wixom
(3d Cir.2001)
Frank,
n. 4
for the proposition that the decision of the
ground
that
(distinguishing Morris on
appellate
entry
rather than the
not,
have,
Nara could
but did
file a
mandate,
signals
the conclusion of
certiorari).
The Seventh Circuit has
precedent,
review. Wixom is relevant
but
willingness
give
also exhibited a
effect
Mitchell,
our
in Bunney
decision
2244(d)(2).
“pending”
to the word
(9th Cir.2001), may
F.3d 973
speak more
Schomig,
Gutierrez v.
which the became review,” direct
conclusion of Bunney, and in at issue here period is tolled
states that the limitations for state collateral
while an pending.”
review “is question to reach the see no reason Bunney is Wixorrt gov- here,
erns as the answer
does not matter. IN
UNITED STATES CELLULAR AN
VESTMENT COMPANY OF LOS
GELES, INC., Plaintiff-counter-de
fendant-Appellant, MOBILNET, INC., erroneously
GTE Incorporated; Wireless
sued GTE Cellular, Inc., erroneously sued
Contel Incorporated, Defen
as GTE Wireless
dants-Appellees, Cellular, Inc.,
AirTouch AirTouch Com
munication, Inc., Defendants-coun
ter-claimants-Appellees, Corporation,
Bell Atlantic Defendant-
intervenor-Appellee.
No. 00-56267. Appeals,
United States Court of
Ninth Circuit. Dec.
Argued Submitted
Filed Feb.