Noble v. Adams: 9th Circuit on California Habeas Timeliness and Gap Tolling For AEDPA Statute of Limitations Purposes
How fast does a California habeas petitioner need to re-file a habeas petition in the California Supreme Court once it’s been denied in the Court of Appeal in order to continue to toll the statute of limitations deadline for federal habeas review? That’s the tricky question involved in Noble v. Adams (08-17655), a case published Thursday by a panel of the Ninth Circuit. As the court notes, the fact that this issue comes up (not only here, but in many other cases, such as in last term’s SCOTUS case Walker v. Martin) is a quirk of the vague California standard on habeas timeliness:
Because of California’s unique system for appellate review of habeas corpus petitions, which does not provide a determinate time-frame for appealing the decision of a lower court, a petition that has been denied by a lower court remains pending if the petitioner files a new petition in a higher court within a reasonable time of the petition’s denial.
Emphasis added. Noble v. Adams does not resolve the question of what a “reasonable time” means: it simply remands to the district court and asks the district court to figure out whether the petitions involved in this case were re-filed in a way that met that standard. A bit of dicta toward the end of the opinion, however, provides one more point of reference for attorneys and petitioners who are attempting to read the tea leaves:
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, 592 F.3d 1046, 1048 (9th Cir. 2010). However, the California Court of Appeal has excused delays of several months where the petitioner offered an adequate explanation for the delay. See In re Burdan, 86 Cal. Rptr. 3d 549, 557-58 (Cal. Ct. App. 2008) (excusing delay of ten months for pro se petitioner where attorney said he would handle appeal but failed to do so); In re Crockett, 71 Cal. Rptr. 3d 632, 636-37 (Cal. Ct. App. 2008) (excusing delay of approximately five months where attorney “had no prior experience with appellate writs and could not obtain the assistance of experienced appellate counsel”). Thus, Noble’s delay of four and a half months may be within the range of reasonableness if his explanation for the delay is adequate under California law.
“May” be, indeed.