Under AEDPA, the limitations period is tolled “during the time [in] which a properly filed application for state post-conviction or other collateral review with respect to the pertinent judgment or claim is pending.”[97]  The answers to the following questions will assist counsel in determining the final date on which the federal habeas petition is due.

 

·    Question One: Have any state post-conviction petitions been filed prior to the expiration of the limitations period?

 

It is important to remember that the one-year period cannot be tolled if the statute of limitations has already run.  If the year has already passed, and no state post-conviction actions were filed during that period, there is no basis for statutory tolling.  Under those circumstances, the only possible hope is equitable tolling, discussed in § 5.34 below, or an alternative starting date for the one-year period.

 

·    Question Two: What types of post-conviction petitions will operate to toll the limitations period?  

 

Only the filing of a state post-conviction actions operate to toll the statute.  Federal habeas corpus petitions filed pursuant to 28 U.S.C. § 2254 do not toll the running of the one-year statute.[98]

 

Moreover, only “properly filed” state post-conviction actions will toll the one-year period.  In Artuz v. Bennett,[99] the U.S. Supreme Court held that “an application is ‘properly filed’ when its delivery and acceptance are in compliance with the applicable laws and rules governing filings.”  As long as the petition comports with state filing requirements, it will operate to toll the limitations period.  Examples include “the form of the document, the time limits upon its delivery, the court and office in which it must be lodged, and the requisite filing fee.”[100]  “Properly filed” includes format, fees, and service requirements, but does not include compliance with substantive requirements, such as the prohibitions against successive applications or untimely petitions.  In other words, the requirement that a petition be properly filed does not require that the petition be meritorious or that the petitioner be substantively entitled to relief.

 

Finally, the Ninth Circuit has held that any state action attacking the judgment in question will operate to toll the running of the statute, even if the state action did not raise any of the grounds alleged in the federal habeas corpus petition.[101]

 

· Question Three: How much time has been tolled?

 

            The entire time during which properly filed state habeas corpus petitions are pending is counted for tolling purposes.[102]  Thus, each day from the day the first state post-conviction action is filed in the trial court, until it has been rejected by the state supreme court, counts towards tolling.  This is true even if the petitioner occasions some delay between the date one court has denied the petition and the date the application is filed in the next state court.[103]

 

CAVEAT:  Unlike direct appeal, there is no tolling credit for the 90 days within which a petition for writ of certiorari to the United States Supreme Court may be filed following the denial of state post-conviction relief.[104]

 

For any pro se state post-conviction actions, it should also be remembered that the date of filing is the date the prisoner delivered the petition to prison authorities for forwarding to the court for filing.  This “mailbox” rule applies to both state and federal actions.[105]  The date of delivery to prison officials for filing is normally presumed to be the handwritten date on the petition, unless there is evidence to the contrary.

 

            PRACTICE POINTER:  As a practical consideration, it must be remembered that a properly filed petition in state court only tolls the time that remains within the one-year period.  Once the last state court has denied the petition, the petitioner must file the federal action within the time that was remaining within the federal statutory period as of the date the first state petition was filed.  Thus, it is advisable to file a state court petition as much in advance as possible of the end of the one-year statutory period, because once the final state court petition has been denied, there must be sufficient time remaining to file the federal action. 

 

[97] 28 U.S.C. § 2244(d)(2).

[98] Duncan v Walker, 533 U.S. 167, 121 S.Ct. 2120, 2127 (2001).

[99] Artuz v. Bennett, 531 U.S. 4, 121 S.Ct. 361, 354, 148 L.Ed.2d 213 (2000).

[100] Ibid.

[101] Tillema v. Long, 253 F.3d 494 (9th Cir. 2001).

[102] See Nino v. Galaza, 183 F.3d 1003, 1005 (9th Cir. 1999).

[103] See Safford v. Newland, 224 F.3d 1087 (9th Cir. 2000).

[104] Bunney v. Mitchell, 241 F.3d 1151, 1156 (9th Cir. 2001).

[105] See Safford v. Newland, 224 F.3d 1087 (9th Cir. 2000).

POST CON RELIEF - HABEAS - FEDERAL - STATUTE OF LIMITATIONS - STATES WAIVER OF STATUTE OF LIMITATIONS DEFENSE EXCUSED WHERE THERE WAS NO INTELLIGENT WAIVER ON THE STATES PART AND ONLY AN EVIDENT MISCALCULATION OF TIME
Day v. McDonough, ___ U.S. ___ (Apr. 25, 2006) (affirming dismissal of a habeas petition as untimely under AEDPA one-year statute of limitations, since district court had discretion to correct the states erroneous computation sua sponte when there was no intelligent waiver on the states part and only an evident miscalculation of time).
http://laws.lp.findlaw.com/us/000/041324.html      Perhaps this principle can be applied to excuse violations of the AEDPA statute of limitations on the part of the petitioner, since due process requires procedural rules be applied evenhandedly to the prosecution and defense. See Wardius v. Oregon, 412 U.S. 470, 474 (1973) (procedural rules must cut both ways, since due process "speak[s] to the balance of forces between the accused and his accuser.").

POST CON RELIEF - HABEAS CORPUS - FEDERAL - STATUTE OF LIMITATIONS - TOLLING BETWEEN STATE PETITIONS
Evans v. Chavis, ___ U.S. ___ (Jan. 10, 2006) (though California has no statutory period for filing a challenge to a denial of a habeas petition, three-year delay between adverse ruling and request for appellate review was not a "reasonable time" within the meaning of In re Harris (1993) 5 Cal.4th 813, 828, n.7; state high court's denial "on the merits" did not mean that it considered the petition timely; Supreme Court suggests that the California court might define what it means by "reasonable time," and strongly suggests that 30 to 60 days are the magic numbers).

POST CON RELIEF - HABEAS - FEDERAL - REVIEW OF STATE CONVICTION PRECLUDED SINCE STATE PETITION REJECTED BY STATE COURT AS UNTIMELY IS NOT PROPERLY FILED UNDER 28 U.S.C. 2244(d)(2), AND THEREFORE DOES NOT TOLL THE 1-YEAR AEDPA STATUTE OF LIMITATIONS FOR FILING A FEDERAL HABEAS CORPUS PETITION
Pace v. DiGuglielmo, ___ U.S. ___, 2005 WL 957194 (April 27, 2005) (federal habeas review of state conviction precluded since state petition rejected by state court as untimely is not properly filed under 28 U.S.C. 2244(d)(2), and therefore does not toll the 1-year AEDPA statute of limitations for filing a federal habeas corpus petition).
http://laws.findlaw.com/us/000/03-9627.html

Ninth Circuit

POST CON RELIEF " FEDERAL " HABEAS " STATUTE OF LIMITATIONS " TOLLING BY PENDING STATE POST-CONVICTION PETITION
Noble v. Adams, 676 F.3d 1180 (9th Cir. Apr. 19, 2012) (remanding case to the district court to determine whether a four-and-a-half-month delay between the denial of a first habeas petition in the California Superior Court and the filing of a second petition in the same court was reasonable in the context of the case under California law, so as to toll the one-year AEDPA statute of limitations period for filing the federal habeas corpus petition).

POST CON RELIEF " FEDERAL " STATUTE OF LIMITATIONS " TOLLING DURING PENDENCY OF STATE POST-CONVICTION PETITIONS
Trigueros v. Adams, 658 F.3d 983 (9th Cir. Sept. 14, 2011) (state court's request for informal briefing from the people on appellant's state habeas corpus petition constituted a finding of timeliness and a final decision on the merits by that state court such that appellant's federal petition, filed less than a month after the findings, is timely under the AEDPA, since the AEDPA statute of limitations is tolled by the filing of a state post-conviction petition).

POST CON RELIEF " FEDERAL " HABEAS " STATUTE OF LIMITATIONS " TOLLING " TIME IS NOT TOLLED DURING DELAYS BETWEEN DIFFERENT STATE PETITIONS
Velasquez v. Kirkland, ___ F.3d ___, 2011 WL 1758718 (9th Cir. May 10, 2011) (affirming district courts dismissal of habeas petition, where the one-year AEDPA statute of limitations for filing a federal habeas corpus petition was not tolled during delays between petitioner's state-court petitions for collateral review).

POST-CON " FEDERAL " HABEAS " STATUTE OF LIMITATIONS
Lee v. Lampert, 610 F.3d 1125 (9th Cir. Jul. 6, 2010) (grant of habeas petition reversed where: 1) there is no actual innocence exception serving as a gateway through AEDPA's statute of limitations to the merits of a petitioner's constitutional claims in original petitions; and 2) the Schlup exception never applies to federal statutes of limitations because AEDPA created such limitations later).

POST CON RELIEF - FEDERAL - HABEAS CORPUS - STATUTE OF LIMITATIONS - TOLLING
Banjo v. Ayers, 614 F.3d 964 (9th Cir. Jun. 17, 2010) (statute of limitations was not tolled during period between dismissal of first state petition and filing of successive state petition, because petitioner's delay was not reasonable or consistent with the short periods of time permitted by most states and envisioned by the Supreme Court).

POST CON RELIEF - FEDERAL - AEDPA STATUTE OF LIMITATIONS - STATE CONVICTIONS
Allen v. Siebert, 128 S.Ct. 2 (9th Cir. Nov. 5, 2007) (when a postconviction petition is untimely under state law, "that [is] the end of the matter" for purposes of tolling the AEDPA's 1-year statute of limitations for filing a federal habeas petition, and the inquiry does not turn on the nature of the particular time limit relied upon by the state court at issue).

POST CON RELIEF - HABEAS CORPUS - FEDERAL
King v. Lamarque, ___ F.3d ___ (9th Cir. Jul. 26, 2006) (simply contesting the adequacy of a state rule is sufficient to meet the petitioner's burden, under Bennett v. Mueller, 322 F.3d 573 (9th Cir. 2003), if the court has previously found the rule to be too ambiguous to bar federal review during the applicable time period). http://caselaw.lp.findlaw.com/data2/circs/9th/0515757p.pdf

POST CON RELIEF - FEDERAL - HABEAS - STATUTE OF LIMITATIONS - TOLLING - PROPERLY FILED PETITION
Bonner v. Carey, ___ F.3d ___ (9th Cir. Mar. 7, 2006) (California Superior Court denied state petition as untimely when it said that petitioner could have raised the claims in an earlier petition and that there "[wa]s no reason stated for any delay in this regard"; petition was thus never "properly filed" for purposes of the tolling provision of the Antiterrorism and Effective Death Penalty Act of 1996).

HABEAS CORPUS - FEDERAL - INTERVAL TOLLING
Gaston v. Palmer, 387 F.3d 1004 (9th Cir. Oct. 28, 2004) (petitioner entitled to tolling during time six separate state habeas petitions were pending, including intervals between the dismissal of one application and the filing of next one, because there is no strict time limit on the filing of habeas petitions in the different courts; intervals as long as 307 and 282 days were entitled to interval tolling).

POST CON - HABEAS - FEDERAL - STATUTE OF LIMITATIONS
Isley v. Arizona Dept. of Corr., __ F.3d __ (9th Cir. Sept. 15, 2004) (petition for habeas corpus granted where state petition for post-conviction relief was pending within the meaning of 28 U.S.C. section 2244(d)(2) and entitled defendant to toll one year statute of limitation period for filing federal post-conviction relief).
http://caselaw.lp.findlaw.com/data2/circs/9th/0315858p.pdf

POST CON - HABEAS - FEDERAL - STATUTE OF LIMITATIONS - TOLLING - FILING OF STATE POST CONVICTION RELIEF PETITION
Chavis v. Lemarke, ___ F.3d ___ (9th Cir. Aug. 27, 2004) (district court dismissal of federal habeas corpus petition as untimely reversed since statute of limitations was tolled due to filing of state habeas petitions).
http://caselaw.lp.findlaw.com/data2/circs/9th/0117072p.pdf

POST CON -- HABEAS CORPUS -- FEDERAL -- TOLLING DURING STATE REVIEW ROUNDS
Chavis v. LeMarque, ___ F.3d ___ (9th Cir. 2004) (AEDPA one-year statute of limitations for 28 U.S.C. 2254 habeas proceedings tolled while second round of state post-conviction petitions were pending, even though they were denied on procedural grounds, since state court's ultimate decision on a particular petition does not affect whether that petition is "pending" while court considers it). See also Carey v. Saffold, 536 U.S. 214, 219-21 (2002) (time gap between petitions viewed under California's "reasonableness" standard rather than strict time limit; question is whether petitioner unreasonably delayed filing in next court).      A petition is considered pending during one full round of state review, which includes petitions in Superior Court, the Court of Appeal, and the state Supreme Court. During subsequent rounds of state petitions, the statute of limitations is tolled while each petition is pending, but not between petitions. AEDPA time starts to run 31 days after the state supreme court denies the final petition. Smith v. Duncan, 297 F.3d 809, 814 (9th Cir. 2002).