Thomas James Welch v. Anthony C. Newland, Warden
267 F.3d 1013
9th Cir.
2001
Check Treatment
Docket

*1 1013 will say it do to burden Nor will step in this The next on the alien.

be WELCH, Thomas James Petitioner- a claim that the likely be will most process Appellant, rec get to actual expected cannot be alien v. country origin. See Abo from his ords (9th INS, 978-79 vian Anthony NEWLAND, Warden, C. INS, Cir.2000); Ramos-Vasquez Respondent-Appellee. Cir.1995). (9th And, 857, 862-63 F.3d 00-15366. No. requirements authentication special countries, where from other for documents Appeals, United States Court as rampant, are treated forgery may Ninth Circuit. INS, Khan v. circuit. See suspect Cir.2001). Argued July (9th Submitted That impossible it to say to that will be is not Sept. Filed requires rang system which administer manner —we the world ing all over just can live virtual people

know that environment, they ultimately can any

ly any just about

live with and administer how difficult. system,

kind of no matter rational say perfectly

But it is to process.

to decline to undertake does not have to take on

Attorney General the rules and dealing with

the burden country in the world sim every

records of because, root, ignore he decided to

ply expunged under FFOA.

convictions fine, does not re- equal protection have here: progression

quire

recognition of FFOA expungements, statutes,

recognition of similar state and, fi-

recognition of all state statutes all

nally, recognition of enactments that, not say the world. To does

over country, although it does rec-

enisle this nation. separate that we are a

ognize concept, a fine but it is

One world is yet imperative. Not constitutional

anyway.

Thus, respectfully dissent. *2 Porter,

David M. Federal De- Assistant fender, Sacramento, California, pe- for the titioner-appellant. McLean, Deputy Attorney

Janis Shank General, Sacramento, California, for the respondent-appellee. CANBY, HAWKINS,

Before: GOULD, Judges. Circuit CANBY; Opinion Judge by Judge Concurrence GOULD. CANBY, Judge: Circuit Welch, Petitioner pris- Thomas James a California, appeals oner of the State from the federal district court’s dismissal corpus. for a writ of habeas district determined satisfy had failed to statute prisoner limitations for state see 28 U.S.C. federal habeas 2244(d)(1), and therefore dismissed the untimely. We conclude that of limitations was tolled to an extent rendered Welch’s time- ly. accordingly reverse. Background. Penalty Death Act of Pub. L. No. (“AEDPA”). 104-132, 110 Stat. prisoner is a California state time, imposed, for the first a one- possibility serving a life sentence with year statute of prison guilty to two counts of parole. pled He *3 filing ers federal for habeas cor murder, and his conviction be- attempted 2244(d)(1). § pus. See 28 U.S.C. For 17, final on December 1993. On came Welch, prisoners like whose convictions 12, 1994, petition Welch filed a for had passage become final before of AED- corpus in the writ of habeas California PA, one-year period the began limitations Court, attacking validity the Superior date, running on AEDPA’s effective April guilty The court denied the plea. 1996, 24, 24, expired April on years tion on March 1994. Over four Stewart, unless it was tolled. Patterson v. later, 22,1998, August submitted on Welch (9th Cir.2001). 1243, 1246 251 F.3d petition for writ of habeas cor- original The pus Supreme to the California Court. subject AEDPA limitation is to an claims that were different petition raised important provision, tolling however. It Superior from the claim he raised the provides: during prop- “The time which a de- Supreme Court.1 The California erly post-convic- filed for State or cita- petition nied this without comment ... pend- tion or other collateral review 24,1999. tion on ing any period shall not be counted toward petition then filed a for writ of 2244(d)(2). § of limitation.” 28 U.S.C. district corpus habeas with the federal The district court determined the one- 25,1999. court on March The State filed a year period was not tolled be- dismiss, asserting motion to the petition tween the date of denial of Welch’s tion was barred the limitation by Superior the California Court and the 2244(d)(1). § period 28 U.S.C. original date of Welch’s of his habeas granted the motion. The district Supreme with year It had one reasoned Court, no properly because filed after to file his passage pending during period. was Conse- year expired April and that on view, quently, under the district court’s 1997; 1999 federal year Welch’s one to file federal untimely. therefore The district court April making on his 1999 ended subsequently granted ap- a certificate of untimely. federal habeas pealability, appeal and this followed. reject court’s district

Discussion law, analysis.2 post-con Under our case April Congress “pending” Effective viction review is thus —and of limitations is tolled— the Antiterrorism and Effective AEDPA’s statute enacted medication, allegedly Superior Court in Welch at- under the influence validity guilty plea appellate lawyer tacked the of his on the and that his was ineffective ground that his trial counsel had been ineffec- plea. arguing of the for withdrawal informing tive in not him of the time he must prison being eligible serve in state before be- 2. The district court reached its decision later, years parole. Four in the California Newland, fore we decided v. Court, plea Welch attacked the Cir.2000), (9th and thus the court was plea grounds had not been volun- guidance of its on the without the benefit tar)', ineffective for al- that his counsel was question presented here. lowing plea Welch to enter while he was petition with the peti subsequent time the state habeas file his Cali- from “the tion is filed until fornia Court.4 collat rejects petitioner’s final This runs afoul of our decision Galaza, challenge.” eral Nino (9th Newland, 250 F.3d 1262 Cir.1999) (9th 1003, 1006 Cir.2000). There, pe- we concluded that a includes intervals be tolled statutory tolling titioner was entitled to disposition peti tween the of a state court though under subsequent petition of a tion and had waited four and one-half months after appellate at the next state level. Un Appeal the California Court of denied his therefore, rule, post- Welch’s state der this before he filed his next “pending” from the conviction review was *4 Supreme at the California Court. period entire between 1994- turned, in 1267-68. Our decision which Welch filed his first the date on length gap not on the of the time between in corpus for writ of habeas the petitions, but fact on the that the Califor- Superior February California Court-until Supreme nia had addressed Court Saf- 24, 1999, Supreme when the California fold’s the merits.5 Id. at 1267. rejected challenge. Court Welch’s final purpose We reasoned of AEDPA’s Consequently, AEDPA’s statute tolling provision give was to state courts April limitations was from of tolled opportunity to address merits of the 1996, the date on which AEDPA was en petitioner’s claim before the federal courts acted, 24, 1999, until and Welch’s intervened, adopt and thus we declined to timely. March 1999 federal required a rule that would have Saffold to argues The State that the statute have filed federal before the of limitations was not tolled here for two California Supreme Court ruled on the reasons, neither of which convinces us. merits of his claim. Id. The State first observes AEDPA’s ruling, emphasized In so we that we is tolled when a merely following were rule set petitioner 'properly pursuing is his state Nino, Nino, remedies, out in provides see which that time is at petitioner 1006.3 The tolled under AEDPA while a is State contends Welch did properly pursue “attempting such remedies here to exhaust state collateral years through proper because he waited four and a half to remedies use state court " untimeliness, requirement ‘proper ground petitioner refers use of on the ” Nino, procedures,’ state court 183 F.3d at tolling. would not be entitled to Nino left Lemaster, (quoting 1006 Barnett v. undecided, Nino, question however. See (10th Cir.1999)), proper not to the similarly 183 F.3d at 1006 n. 4. We do not " petition. 'properly of the A is address it. ” meaning filed’ in state court within the delivery accep- its "when Supreme deny- 5.The California Court’s order compliance applicable tance are in with the stated, ing entirety: Saffold relief in its “Peti- filings.” governing laws and rules Artuz corpus tion for writ of habeas is DENIED on Bennett, 4, 8, 531 U.S. 121 S.Ct. diligence.” Saffold, the merits and for lack (2000) (emphasis original). L.Ed.2d 213 Notwithstanding 250 F.3d at 1267. the lan- dispute The State does not that Welch com- guage concerning petitioner’s "lack of dil- plied with the state courts’ mechanical igence,” we construed the California Su- requirements. preme Court’s order as a dismissal on the 4. The assumes that if the merits. Id. .State’s Supreme California denied a view, (citing 183 Under the State’s because Welch Id. at 1266 procedures.” 1006) up never followed on the claim he raised (emphasis Saffold). added F.3d at petition, the first there was no rule, review recog- implicitly Applying “pending” from March when the question of whether nized Superior Court denied Welch’s “proper” has made use of state tioner August orig- when Welch filed his procedures relief is inal petition Supreme with the California courts, for the rather than' the feder- Court. courts, to decide.6 Id. 1266-67. Be- al Supreme Court had

cause reject Recognizing this contention. petitioner’s claim on the addressed that a can multiple petitions file merits, seeking we viewed the California while to exhaust relief Califor- nia, we held in Nino that petitioner’s AEDPA’s statute having recognized Court as of limitations tolled from the time “the relief use of state habeas filed until the AED- “proper,” have been and thus within rejects Id. at tolling provision. PA’s 1267-68. tioner’s collateral challenge.” 183 final controlling this case be- F.3d at so or- cause the California Court’s *5 stating, we did not that a require petition- relief comment denying der without er raise the same that he claims raised a denial on the mer- or citation constituted below, require petitioner nor did we that a Aispuro, its. See Hunter v. 982 F.2d pursue remedies at each level of review. (9th Cir.1992).7 Thus, 347-48 notwith- “[tjhere Indeed, recognized that are year standing Welch’s four and one-half by may two which a petitioner methods post-conviction delay, his use of California by seek review relief must be deemed 'to have by after a petition habeas is denied “proper” reasoning under our in been Saf- of Appeal. preferred the Court meth- Consequently, delay filing in Welch’s fold. review, by petition od a but is. defeat under AEDPA. tolling does not petitioner is also instead an free to file ,is The State’s next that there in original petition tolling was no between the denial of at Saffold, Court.” 250 F.3d 1266 n. 2). first and the of his Nino, By n. (citing 183 F.3d at 1006 definition, second because the claims raised an original petition does not re- in the differ- altogether were a quire that raise the same below, may ent from the claims raised the second. claims that he have raised nor Notably, recognized post-convic- properly pursuing 6. itself state Nino been his question petitioner's pursuit of whether a of tion remedies.” 183 F.3d at 1006 n. post-conviction "proper” state relief was resolve, question a for state courts to rather than the federal Nino stated: "Be- courts. by supreme 7. A denial of relief a state case, cause we ex- it is not issue might without comment be deemed to rest on press opinion tolling pur- no as to whether ‘ procedural ground ground a was the if applied be if the suant should urged by support one the state in a California state courts have dismissed dismissal, judgment or if a lower court whose untimely because habeas as was under review had made a reasoned deci- engaged delay tioner in substantial in assert- procedural denying the sion ing habeas claims.... We do not ex- also Calderon, grounds. Siripongs ' See press opinion tolling as to whether would (9th Cir.1994). Neither condition appropriate the California state courts if obtains here. prisoner had determined the state had not 1999, making the federal petitioner pursue require

does timely. review. at each level of Welch filed in March 1999 remedies judgment of the accordingly reverse the was not re- conclusion Our pro- remand for further district court and reallege the same claims quired to ceedings. Supreme Court petition with the California by the text of AEDPA’s is bolstered REMANDED. REVERSED AND “[t]he which states that time provision, application during properly which a filed GOULD, Judge, concurring: Circuit ... review with

for State judgment or claim respect pertinent opinion in the of the court concur from the limitation pending” is tolled because this case is controlled period. 28 U.S.C. (9th Cir.2000). Newland, 250 F.3d 1262 language unequivocally pro- However, I applica am concerned that the that, long as there was a state vides Sajfold operates tion of the rule of here petition pending that arises out of habeas substantially to frustrate the intent of judgment on which the federal the same limita Congress imposing based, post-conviction review is prisoners fed tions for state pre- if claim “pending,” precise corpus in AED- eral for habeas to the state court that tolled the sented Congress recognized tolling PA. itself realleged statute is not the federal during pendency or Long, Tillema v. tion. See proceeding review in state (9th Cir.2001) (“AEDPA’s period courts, explicitly providing: “The time during pendency limitation is tolled during properly which a filed application challenging perti- a state *6 for or State other if judgment, particular appli- nent even the pending review ... is shall not be counted cation does not include a claim later as- any period toward of limitation.” petition.”) serted the federal habeas (footnote omitted). 2244(d)(2). Here, sepa- U.S.C. In accord with Saf- rate arose out of the same 1993 today fold, the court holds that the final judgment, and the California order of the California State Court, in deciding his on the mer- must be viewed if it addressed its, did rule Welch’s to be merits, appellant’s claims on the and untimely employment of post-convic- or his pro all time that went before while state tion relief to have been other- invoked, end, ceedings were from start to Thus, improper. wise despite lengthy delays, and interim “pending” review was on agree Sajfold tolled. requires us so the date on which he hold. though filed his first habeas even argument, appellant At oral counsel for pursued

the claim he in that acknowledged that there is in effect no petition. not raised his federal habeas pro- time limit whatsoever state court “pending” id. And it remained until See ceedings. Sajfold That is where leads us. February when the Appellant’s urged counsel the state rejected Supreme Court Welch’s final chal- courts what abu- could avoid seemed lenge on the merits. See delays finality by modify- lack of sive Consequently, at 1006. AEDPA’s statute system ing their of resolution to rule ex- of limitations was tolled from the date of plicitly proceeding AEDPA enactment until that a state habeas proper untimeliness or lack of denied for may else we procedure. Whatever decide, we cannot decide power

have the will

how the California

manage pace or form of resolution presented to it under state law.

matters problem us with this and no leaves way it.

apparent to resolve if the rule

Perhaps would be desirable

announced in were reexamined to main-

determine if that rule should be However,

tained, modified, rejected. or desirable, task, if prop-

such a cannot

erly by panel be undertaken of our court.

LEISNOI, INC., Plaintiff-Appellant, America,

UNITED STATES

Defendant-Appellee.

No. 00-35746. Appeals,

United States Court

Ninth Circuit.

Argued and Submitted March Sept.

Filed