OPINION
Nоble, a prisoner of the State of California, appeals from the denial of his petition for a writ of habeas corpus. We review de novo the denial of a petition for a writ of habeas corpus on statute-of-limitations grounds.
Delhomme v. Ramirez,
I.
Following a jury trial in California Superior Court, Noble was found guilty of one count of aggravatеd sexual assault of a child under 14, forcible oral copulation, three counts of lewd act on a child under *1182 14, and one count of false imprisonment. The superior court imposed an aggregate prison sentence of 130 years to life. The California Court of Appeal upheld Noble’s conviction and sentence and the California Supreme Court denied his petition for review on direct apрeal. The conviction and sentence became final for purposes of the Anti-Terrorism and Effective Death Penalty Act (AEDPA) on July 20, 2004, when the time to petition for certiorari to the United States Supremе Court expired. See 28 U.S.C. § 2244(d)(1)(A).
On June 23, 2005, Noble mailed a petition for a writ of habeas corpus to the California Superior Court for Santa Clara County. The superior court denied Noble’s petition on July 25, 2005, on the grounds that sеveral of Noble’s claims were proeedurally barred because they could have been raised on direct appeal and others failed to state a prima facie case for relief.
On September 8, 2005, Noble mailed a second petition for a writ of habeas corpus to the same superior court. Noble’s second petition re-alleged the same substantive claims as the first рetition, but also added a claim that Noble’s prior appellate counsel had rendered ineffective assistance by failing to raise those claims on direct appeal. The second petition also added a claim for “cumulative prejudice.” On October 28, 2005, the superior court denied the second petition because the claims were duplicative of Noble’s prior petition and because Noble presented claims in a piecemeal fashion.
On December 8, 2005, Noble mailed a petition for a writ of habeas corpus to the California Court of Appeal raising thе same claims as the prior petitions. The court of appeal summarily denied the petition on February 1, 2006.
On February 15, 2006, Noble mailed a petition for a writ of habeas corpus raising the same claims as the prior petitions to the California Supreme Court. The Supreme Court summarily denied the petition on October 18, 2006.
Noble mailed a petition for a writ of habeas corpus under 28 U.S.C. § 2254 to the United States District Court for the Northern District of California on October 26, 2006. The district court dismissed the petition as untimely, and we granted a certificate of appealability.
II.
Under the AEDPA, “[a] 1-year period of limitation shall apрly to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court.” 28 U.S.C. § 2244(d)(1). Noble’s one year began running from “the date on which the judgment became final by thе conclusion of direct review or the expiration of the time for seeking such review.” Section 2244(d)(1)(A). However, “[t]he time during which a properly filed application for State post-conviction or оther collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.” Section 2244(d)(2).
We apply the “mailbox rule” in determining whether Noble’s petitions were timely. “Under the ‘mailbox rule,’ a pro se prisoner’s filing of a state habeas petition is deemed filed at the moment the prisoner delivers it to prison authorities for forwarding to thе clerk of the court.”
Stillman v. LaMarque,
The district court concluded that Noble was not entitled to tolling under 28 U.S.C. § 2244(d)(2) of the gap between the denial of his first petition in the California Superior Court and the filing of a second petition in the same court. Thе district court also held that the gap between the denial of his first petition and the filing of a petition in the California Court of Appeal could not be tolled because Noble’s first petition was no longеr pending when he filed the petition in the court of appeal. The district court erred in concluding, without further analysis of California law, that Noble’s first petition was no longer pending when he filed his petition in the сourt of appeal. Therefore, we vacate and remand for a determination of whether, under California law, Noble filed his petition in the court of appeal within a reasonable time аfter the denial of his first petition by the superior court.
III.
A petition that has been denied by a trial court remains pending until it is either resolved by a higher court or until the time to appeal expires.
See Carey v. Saffold,
The Warden argues that Noble abandoned his right to seek review of his first petition by filing a second petition in the superior court rather than proceeding directly to the California Court of Appeal. But none of the authorities he cites supрort this proposition. On the contrary, such procedural errors by a pro se plaintiff may well be excused under California law.
See In re Gray,
The period that an application for post-conviction review is pending is not affected or ‘untolled’ merely because a petitioner files additional or overlapping petitions before it is complete. Rather, each time a petitioner files a new habeas petition at thе same or a lower level, ... the subsequent petition has no effect on the already pending application, but triggers an entirely separate round of review.
Delhomme v. Ramirez,
Noble argues, in the alternative, that the district court erred in concluding that Noble’s second petitiоn in the superior court initiated a separate round of review. But we need only consider that holding if it turns out that Noble’s petition in the court of appeal was not filed within a reasonable time vis-á-vis his first petitiоn. Because the district court did not make any findings on that issue, we do not address whether Noble’s second petition in the superior court was part of his first round of review under
King v. Roe,
IV.
We remand to the district court to detеrmine in the first instance whether, under California law, Noble filed his petition in the court of appeal within a reasonable time after the denial of his first petition in the superior court. We have stated that an unexplained delay that is “substantially longer than the ‘30 to 60 days’ that ‘most States’ allow for filing petitions” is not reasonable under California law.
Chaffer v. Prosper,
In determining whethеr, under the circumstances of this case, California law would excuse Noble’s delay, the district court should consider all relevant factors. Noble contends that his decision to file a second petitiоn in the superior court was an attempt to cure the deficiencies in his first petition and was merely a good faith procedural error that can be excused under
Gray,
We wish we could be more helpful to the district court by providing more guidance. However, this is a state law question. Our court earlier requested advice on this issue from the Cаlifornia Supreme Court but that request was denied.
See Chaffer,
VACATED and REMANDED.