Julius Robinson v. G. Lewis ( 2015 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JULIUS M. ROBINSON, No. 14-15125
Petitioner-Appellant,
D.C. No.
v. 2:13-cv-00604-WBS-AC
G. W. LEWIS, ORDER CERTIFYING
Respondent-Appellee. QUESTION TO THE
CALIFORNIA
SUPREME COURT
Appeal from the United States District Court
for the Eastern District of California
William B. Shubb, Senior District Judge, Presiding
Argued and Submitted
June 11, 2015—San Francisco, California
Filed July 28, 2015
Before: Mary M. Schroeder and Sandra S. Ikuta, Circuit
Judges and J. Michael Seabright,* District Judge.
*
The Honorable J. Michael Seabright, District Judge for the U.S.
District Court for the District of Hawaii, sitting by designation.
2 ROBINSON V. LEWIS
SUMMARY**
Habeas Corpus
The panel certified to the California Supreme Court the
following question:
When a state habeas petitioner has no good
cause for delay, at what point in time is that
state prisoner’s petition, filed in a California
court of review to challenge a lower state
court’s disposition of the prisoner’s claims,
untimely under California law; specifically, is
a habeas petition untimely filed after an
unexplained 66-day delay between the time a
California trial court denies the petition and
the time the petition is filed in the California
Court of Appeal?
ORDER
We ask the California Supreme Court to resolve an
important question of state law that the Ninth Circuit has long
struggled to answer, a struggle that absorbs appellate and
district court resources and frustrates state prisoners. The
question is: when is a state prisoner’s petition for a writ of
state habeas corpus in a non-capital case timely filed in a
California court? Without the California Supreme Court’s
guidance on this issue, federal courts lack the means to make
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
ROBINSON V. LEWIS 3
a correct determination of whether a state habeas petition was
properly filed, and thus whether its filing tolls the federal
statute of limitations for filing a federal habeas petition.
Accordingly, pursuant to Rule 8.548 of the California Rules
of Court, we certify the following question to the California
Supreme Court:
When a state habeas petitioner has no good
cause for delay, at what point in time is that
state prisoner’s petition, filed in a California
court of review to challenge a lower state
court’s disposition of the prisoner’s claims,
untimely under California law; specifically, is
a habeas petition untimely filed after an
unexplained 66-day delay between the time a
California trial court denies the petition and
the time the petition is filed in the California
Court of Appeal?
Our phrasing of this question should not restrict the
Court’s consideration of the issues involved. The Court may
rephrase the question as it sees fit in order to address the
contentions of the parties. If the Court agrees to decide this
question, we agree to accept its decision. We recognize that
our certification request adds to the substantial caseload of
the Court, and we submit this question for the Court’s
consideration because of its importance and its prevalence, as
discussed below. “Comity and federalism counsel that the
California Supreme Court, rather than this court, should
answer” the certified question. Munson v. Del Taco, Inc., 522
F.3d 997, 999 (9th Cir. 2008).
4 ROBINSON V. LEWIS
We provide a brief background of the issue and its
importance before discussing the particular case that requires
us to consider it.
I
A
Under federal habeas law, 28 U.S.C. § 2244(d)(1), a state
prisoner must file a petition for federal habeas review within
a one year limitations period.1 Section 2244(d)(2) further
1
Section 2244(d)(1) provides:
(d)(1) A 1-year period of limitation shall apply to an
application for a writ of habeas corpus by a person in
custody pursuant to the judgment of a State court. The
limitation period shall run from the latest of–
(A) the date on which the judgment became final by the
conclusion of direct review or the expiration of the time
for seeking such review;
(B) the date on which the impediment to filing an
application created by State action in violation of the
Constitution or laws of the United States is removed, if
the applicant was prevented from filing by such State
action;
(C) the date on which the constitutional right asserted
was initially recognized by the Supreme Court, if the
right has been newly recognized by the Supreme Court
and made retroactively applicable to cases on collateral
review; or
(D) the date on which the factual predicate of the claim
or claims presented could have been discovered through
the exercise of due diligence.
ROBINSON V. LEWIS 5
specifies that this federal limitations period is tolled for “[t]he
time during which a properly filed application for State
post-conviction or other collateral review with respect to the
pertinent judgment or claim is pending.” The federal statute
has been interpreted to define “[t]he time that an application
for state postconviction review is ‘pending’” as including “the
period between (1) a lower court’s adverse determination, and
(2) the prisoner’s filing of a notice of appeal, provided that
the filing of the notice of appeal is timely under state law.”
Evans v. Chavis, 546 U.S. 189, 191 (2006).
Chavis explained that in most states other than California,
the number of days a petitioner has for filing an appeal is
established by statute. Id. at 191–92. This makes it simple to
determine whether a filing is “timely under state law,” see id.,and thus whether a petition for review is “properly filed” and
the federal statute of limitations tolled, see 28 U.S.C.
§ 2244(d)(2). California, however, has a unique system by
which state habeas petitioners challenge adverse state court
decisions. Chavis, 546 U.S. at 192. Rather than requiring a
petitioner whose habeas petition has been dismissed to appeal
that decision to a higher court, California law provides that an
original petition may be filed at each level of the California
court system. Id. at 192–93. Such a petition is timely if filed
“within a ‘reasonable time.’” Id. at 192 (quoting In re Harris,
5 Cal. 4th 813, 828 n.7 (1993)). California courts allow a
longer delay if the petitioner demonstrates good cause. In re
Robbins, 18 Cal. 4th 770, 780 (1998).
If a California court states it has dismissed a state habeas
petition because the petition was untimely, “that would be the
end of the matter.” Carey v. Saffold, 536 U.S. 214, 226
(2002). When a California state court determines that a state
prisoner’s state habeas petition is untimely under state law,
6 ROBINSON V. LEWIS
there is “no ‘properly filed’ state petition, and [the state
prisoner is] not entitled to statutory tolling” under AEDPA.
White v. Martel, 601 F.3d 882, 884 (9th Cir. 2010) (per
curiam).
But if a California court dismisses a habeas petition
without comment, or even if it reviews a petition on the
merits without discussing timeliness, a federal court “must
itself examine the delay in each case and determine what the
state courts would have held in respect to timeliness,” Chavis,
546 U.S. at 197–98, in order to determine whether the
petition was “properly filed” for purposes of tolling the
federal statute of limitations, id. at 191 (quoting 28 U.S.C.
§ 2244(d)(2)). Observing that California courts had not
provided authoritative guidance on this issue, Chavis made its
own conjecture regarding state law, namely “that California’s
‘reasonable time’ standard would not lead to filing delays
substantially longer than” between 30 and 60 days, the range
of time allowed for filing a notice of appeal by other states’
statutes. Id. at 199, 201. Based on this conjecture, Chavis
held that California courts would hold the unexplained six-
month delay by the state prisoner in that case to be
unreasonable, and therefore concluded the state prisoner had
not filed his state habeas petition on time. Id. at 201.
Given the conjectural nature of its 30 to 60 day
benchmark, Chavis suggested we certify a question to the
California Supreme Court to address the problem of the
“uncertain scope of California’s ‘reasonable time’ standard.”
Id. at 199. We did so in 2008. See Chaffer v. Prosper, 542
F.3d 662 (9th Cir. 2008).
Chaffer involved a state prisoner who delayed 101 and
115 days in filing state habeas petitions, id. at 663–64, but
ROBINSON V. LEWIS 7
argued that he had good cause for some of the delays, id. at
666–67. We sought the California Supreme Court’s guidance
regarding whether these delays, or any delay exceeding 60
days, were unreasonable, and if so, whether the petitioner
demonstrated good cause for the delays. Id. at 663–64, 666.
The California Supreme Court denied certification.
Chaffer v. Prosper, 592 F.3d 1046, 1048 n.1 (9th Cir. 2010)
(per curiam).
B
We have now had seven more years’ experience applying
California’s “reasonable time” standard and we remain
uncertain about the scope of California’s rule. Although
Chavis explained that, on its reading of California law,
permissible delays would not be “substantially longer than”
30 to 60 days, 546 U.S. at 199–200, neither California nor
Ninth Circuit courts have created a clear rule for cases
involving an unexplained delay of more than 60 days.
In the nine years that have passed since Chavis attempted
to deduce how California courts would assess timeliness,
California courts have not provided any authoritative
guidance regarding when a state habeas petition is timely
filed if good cause is absent. Indeed, few state courts have
addressed this issue. For the most part, California cases have
addressed timeliness issues in the context of determining
whether a state prisoner has good cause for a delay, and have
not addressed timeliness where good cause is absent. See In
re Lucero, 200 Cal. App. 4th 38, 44–45 (2011) (holding a
10-month delay was not unreasonable when a prison law
library did not receive a newly-decided case for several
months, and the issue was exceptionally important); In re
8 ROBINSON V. LEWIS
Crockett, 159 Cal. App. 4th 751, 636–37 (2008) (holding a
five-month delay was not unreasonable when an attorney
“had no prior experience with appellate writs and could not
obtain the assistance of experienced appellate counsel”). But
cf. In re Nunez, 173 Cal. App. 4th 709, 723 (2009) (holding
a six-month delay prior to filing an initial habeas petition was
not unreasonable, especially as the delay did not prejudice the
state).
We are aware of only one California case that considered
the timeliness of a state habeas petition when good cause was
lacking, but that case addressed a petition in the context of
parole. See In re Burdan, 169 Cal. App. 4th 18, 31 (2008)
(holding that a petitioner’s 10-month delay in challenging a
parole determination was not unreasonable). Because Burdan
“specifically explained that the timeliness rules apply with
less force where the petitioner is challenging a parole board
determination,” we concluded that it provides little or no
guidance in the non-parole context. Stewart v. Cate, 757 F.3d
929, 936–37 (9th Cir. 2014).
A handful of unpublished California cases also discuss
timeliness. See, e.g., In re Little, No. D047468, 2008 WL
142832, at *4 n.6 (Cal. Ct. App. Jan. 16, 2008) (holding a 14-
month delay was not unreasonable “[i]n the circumstances of
this case”). But because they are unpublished, Rule 8.1115
of the California Rules of Court directs that we not rely on
them as precedent.
In the absence of guidance from California courts, courts
in the Ninth Circuit have struggled to discern how California
courts would rule on the timeliness issue, particularly when
there is no justification for the delay. We have held that
delays of 115, 101, and 81 days make a petition untimely
ROBINSON V. LEWIS 9
unless the petitioner can show good cause. Velasquez v.
Kirkland, 639 F.3d 964, 968 (9th Cir. 2011); Chaffer, 592
F.3d at 1048 (holding the state habeas petitions were untimely
because the peititoner’s “filing delays were substantially
longer than the ‘30 to 60 days’ that ‘most States’ allow for
filing petitions”). We have also interpreted Saffold as holding
“that California’s reasonableness standard is commensurate
with the limitations of other states, which are 30 or 45 days.”
Cross v. Sisto, 676 F.3d 1172, 1176 (9th Cir. 2012). More
recently, we have indicated that the Supreme Court’s 60-day
limit is the “benchmark” from which we will not depart
without a showing of good cause. See Stewart, 757 F.3d at
935 & n.8 (explaining that a delay beyond 60 days is not “per
se unreasonable under California law,” because, as our case
law holds, the 30 to 60 day “benchmark may be exceeded
under appropriate circumstances”). But we have not yet
expressly adopted a bright line rule that an unexplained delay
of more than 60 days is unreasonable.2
District courts in the Ninth Circuit have also wrestled
with this issue. “[N]o consensus has emerged among district
courts in California as to the length of unexplained delay
which is unreasonable in the wake of the decision in Chavis.”
2
Unpublished Ninth Circuit cases also fail to clarify whether any
unexplained delay over 60 days is unreasonable or whether the delay must
be “substantially longer than” 60 days to be unreasonable. Compare, e.g.,
Livermore v. Sandor, 487 F. App’x 342, 343–44 (9th Cir. 2012) (holding
a 76-day delay was unreasonable), and Hurth v. Campbell, 537 F. App’x
696, 697 (9th Cir. 2013) (holding a 70-day delay was unreasonable
because “in the absence of an adequate explanation we cannot see why
there was any delay beyond the thirty-to-sixty-day range” (footnote and
internal quotation marks omitted)), with Pena v. Martel, 450 F. App’x
670, 671 (9th Cir. 2011) (holding a delay of unspecified length was
unreasonable because it was “substantially longer than” 30 to 60 days).
10 ROBINSON V. LEWIS
Wynn v. Martel, No. CIV S-09-2728 JAM DAD P, 2011 WL
864500, at *5 nn.4 & 5 (E.D. Cal. Mar. 10, 2011), report and
recommendation adopted, No. CIV S-09-2728 JAM DAD P,
2011 WL 1811109 (E.D. Cal. May 12, 2011). Some
California district courts have held that “unexplained delays
of 61 to 70 days in pursuing relief between courts are not
unreasonable.” Id. at *6.3 Other district courts have held that
delays within this window were unreasonable,4 or that longer
delays were reasonable.5 Because of the uncertainty
3
See also Gonzales v. Hubbard, No. CV 11-3395-GAF AGR, 2011 WL
6951958, at *3 (C.D. Cal. Nov. 28, 2011), report and recommendation
adopted, No. CV 11-3395-GAF AGR, 2012 WL 28649 (C.D. Cal. Jan. 4,
2012).
4
See Bayaird v. Cate, No. 1:09-CV-01898-LJO-GSA HC, 2010 WL
1339617, at *4 (E.D. Cal. Apr. 1, 2010) (holding an unjustified 67-day
delay was unreasonable); Hunt v. Felker, No. 1:07-CV-01281-OWW-
TAG HC, 2008 WL 364995, at *4 (E.D. Cal. Feb. 8, 2008), report and
recommendation adopted, No. 1:07-CV-1281-OWW-TAG HC, 2008 WL
752592 (E.D. Cal. Mar. 19, 2008) (holding a 70-day delay, not justified
by good cause, was unreasonable); see also Culver v. Dir. of Corr., 450
F. Supp. 2d 1135, 1141 (C.D. Cal. 2006) (holding a 71-day delay was
unreasonable).
5
Young v. Sisto, No. CIV S-11-0166 JAM CKD P, 2012 WL 125520,
at *8 (E.D. Cal. Jan. 17, 2012) (holding an unjustified 77-day delay was
reasonable but other, longer delays were not, and denying the petition as
untimely); Brown v. Campbell, No. CIVS-06-2360 LKK DAD P, 2007
WL 2265588, at *8 (E.D. Cal. Aug. 6, 2007), report and recommendation
adopted, No. CIVS-06-2360 LKK DAD P, 2007 WL 2793284 (E.D. Cal.
Sept. 25, 2007) (holding an unjustified 81-day delay was reasonable);
Ramirez v. Campbell, No. CIVS-06-1257 FCD GGH P, 2006 WL
3114287, at *4 (E.D. Cal. Nov. 1, 2006) (holding an unjustified 75-day
delay was reasonable but other delays were not, and denying the petition
as untimely), report and recommendation adopted, No. CIVS-06-1257
FCD GGH P, 2007 WL 569996 (E.D. Cal. Feb. 21, 2007), aff’d, 384 F.
App’x 654 (9th Cir. 2010) (affirming without discussing the 75-day gap).
ROBINSON V. LEWIS 11
surrounding timeliness, district courts spend substantial
judicial resources addressing this issue. The question of what
constitutes filing within a reasonable time under California
law has arisen in over 500 district court cases in this circuit
since Chavis was decided, and in over 250 since the
California Supreme Court last denied our request for
certification of this question in Chaffer.
C
This question of when a state prisoner’s habeas petition
is timely filed in a California court is an issue of exceptional
importance to both federal and California courts.
As noted above, federal courts expend substantial
resources in an effort to discharge our duty to discern the
state rule for timeliness of filing state habeas petitions. If we
underestimate the permissible delay between a California
lower court’s denial of a petition and the filing of a petition
challenging that decision in a higher court, we will deprive a
state prisoner of the federal review to which the prisoner is
entitled. But if we overestimate the permissible delay, we
will fail to implement “the statutory purpose of encouraging
prompt filings in federal court in order to protect the federal
system from being forced to hear stale claims.” Saffold, 536
U.S. at 226.
The proper application of the federal statute of limitations
also serves important state interests. If federal courts
overestimate the length of time a prisoner may delay and still
timely file a petition, we fail to afford the California court
decisions that tacitly rest on untimeliness the respect due
under the federal system. The federal statute of limitations
also protects the finality of state decisions and promotes the
12 ROBINSON V. LEWIS
exhaustion of state remedies. As the Supreme Court
explained in Duncan v. Walker, “[t]he 1-year limitation
period of § 2244(d)(1) quite plainly serves the
well-recognized interest in the finality of state court
judgments” because it “reduces the potential for delay on the
road to finality by restricting the time that a prospective
federal habeas petitioner has in which to seek federal habeas
review.” 533 U.S. 167, 179 (2001). Furthermore, the tolling
provision of § 2244(d)(2) “promotes the exhaustion of state
remedies by protecting a state prisoner’s ability later to apply
for federal habeas relief while state remedies are being
pursued.” Id. The federal courts’ lack of clarity regarding
California’s “reasonable time” standard threatens these state
interests.
California courts have explained that time limits for filing
a petition for collateral review of a state conviction are
important for several reasons. The California Supreme Court
has explained that petitioners must timely file:
[to] vindicate society’s interest in the finality
of its criminal judgments, as well as the
public’s interest in the orderly and reasonably
prompt implementation of its laws. Such
timeliness rules serve other salutary interests
as well. Requiring a prisoner to file his or her
challenge promptly helps ensure that possibly
vital evidence will not be lost through the
passage of time or the fading of memories. In
addition, we cannot overestimate the value of
the psychological repose that may come for
the victim, or the surviving family and friends
of the victim, generated by the knowledge the
ordeal is finally over.
ROBINSON V. LEWIS 13
In re Sanders, 21 Cal. 4th 697, 703 (1999) (citations and
internal quotation marks omitted). These important state
interests are undermined if federal courts misinterpret
California’s timeliness rules and lengthen the time before a
state conviction becomes final.
Finally, the uncertainty regarding timeliness under state
law “vex[es] prisoners as well, for they cannot know whether
the federal statute of limitations is running while they prepare
their state petitions.” Saffold, 536 U.S. at 235–36 (Kennedy,
J., dissenting). We have held that this uncertainty does not
provide a basis for equitable tolling of the federal statute of
limitations if a prisoner’s state habeas petitions were filed
after Saffold. See Velasquez, 639 F.3d at 969 (holding that
prisoners who filed claims after Saffold had adequate notice
“that federal courts would address the timeliness of [their]
petition[s] in the event that the California courts neglected to
do so”); accord Nedds v. Calderon, 678 F.3d 777, 781–83
(9th Cir. 2012) (holding a state prisoner whose federal
petition was filed pre-Saffold could receive equitable tolling).
State prisoners, including the petitioner in this case,
nevertheless argue that the uncertainty leaves them without
notice of how long a delay a court will find reasonable. State
prisoners face an especially difficult challenge in cases like
this one, where, as summarized above, no Ninth Circuit case
addresses a delay of this length and district courts are split.
Raising this concern, one commentator argued that “it is
profoundly unfair to expect accuracy in calculation from a
pro se inmate on a topic that neither the Supreme Court nor
the Ninth Circuit has succeeded at clarifying.” Emily Garcia
Uhrig, The Sacrifice of Unarmed Prisoners to Gladiators:
The Post-AEDPA Access-to-the-Courts Demand for a
Constitutional Right to Counsel in Federal Habeas Corpus,
14 U. Pa. J. Const. L. 1219, 1241 (2012).
14 ROBINSON V. LEWIS
II
This is an especially appropriate case in which to seek the
California Supreme Court’s guidance because it raises the
timeliness issue without requiring consideration of good
cause for the delay.
A
The facts of this case are as follows. Julius Robinson was
convicted by a jury of two counts of premeditated murder,
two counts of malicious discharge of a firearm, and gun and
gang enhancements. He was sentenced to a determinate term
of 17 years, and an indeterminate term of 205 years to life.
On February 8, 2011, the California Court of Appeal
modified the sentence and affirmed the judgment. The
California Supreme Court denied review, and the deadline for
Robinson to seek certiorari review with the United States
Supreme Court expired on August 9, 2011.
On November 12, 2011, 94 days after the certiorari
deadline passed, Robinson constructively filed a state habeas
petition in California Superior Court.6 On January 19, 2012,
the Superior Court denied Robinson’s petition. On March 26,
2012, 66 days after the Superior Court denied his petition,
Robinson filed a petition with the California Court of Appeal.
6
Because Robinson was a pro se, incarcerated petitioner, the “mailbox
rule” applies, meaning that his petition is deemed filed on the date of its
submission to the prison authorities for mailing. See Noble v. Adams, 676
F.3d 1180, 1182 (9th Cir. 2012). The application of this mailbox rule is
not disputed. There are, however, several discrepancies in the record
regarding the dates the petitions were constructively filed. Because the
dates found by the magistrate judge are not disputed, we rely on the filing
dates found by the magistrate judge as the operative ones.
ROBINSON V. LEWIS 15
On April 5, 2012, the California Court of Appeal denied
Robinson’s petition, citing In re Steele, 32 Cal. 4th 682, 692
(2004), and In re Hillery, 202 Cal. App. 2d 293 (1962).
Neither case involves a timeliness determination. Accord
Walker v. Martin, 562 U.S. 307, 310 (2011) (“California
courts signal that a habeas petition is denied as untimely by
citing the controlling decisions, i.e., [In re] Clark[, 5 Cal. 4th
750 (1993)] and Robbins.”). On July 6, 2012, 91 days after
the California Court of Appeal decision, Robinson filed a
petition with the California Supreme Court. The California
Supreme Court denied his petition on October 24, 2012.
Robinson filed a habeas petition under 28 U.S.C. § 2254in federal district court on March 13, 2013, which was 139
days after the California Supreme Court issued its denial.
Adding up the delays that were attributable to Robinson
(delays of 94, 66, 91, and 139 days), and excluding the time
when his filed petitions were being considered by the
California courts, his petition was filed 390 days after his
conviction became final and the time for seeking certiorari
review by the Supreme Court expired.
The government moved to dismiss the petition, on the
ground that the one-year statute of limitations under 28
U.S.C. § 2244 had expired before Robinson filed his petition.
A magistrate judge considered whether Robinson was entitled
to tolling of the statute of limitations for the gaps between
each lower court denial of Robinson’s habeas petition and his
subsequent filing of a new petition in the next-level state
court. She concluded that the 66-day period between the
denial of his California Superior Court petition and the filing
date of his Court of Appeal petition was unreasonable, and
therefore Robinson was not entitled to tolling for that period.
The magistrate judge also concluded that Robinson was not
16 ROBINSON V. LEWIS
entitled to tolling for the 91-day period between the denial of
his California Court of Appeal petition and the filing date of
his California Supreme Court petition.7 Absent tolling for
either of these two periods, Robinson’s petition was untimely.
The district court adopted the magistrate judge’s findings and
recommendations and granted the government’s motion to
dismiss Robinson’s federal habeas petition with prejudice as
barred by the statute of limitations.
On appeal, we are considering only the question whether
Robinson is entitled to tolling for the 66-day interval between
the California Superior Court denial of habeas relief and his
filing a new petition in the California Court of Appeal.8 The
issue of good cause is absent in this case. Although Robinson
claimed in district court that the delay was “attributed to
further research and litigation of potential issues,” the district
court rejected this justification because “[t]he petition filed in
the California Court of Appeal was simply a photocopy of the
prior petition.” Robinson did not dispute this conclusion in
7
In the district court, the state made clear that it “does not argue that the
[California Supreme Court petition] was improperly filed; therefore
[Robinson] is entitled to tolling for the pendency of his third state action
. . . for the period of August 1, 2012 through October 24, 2012.” On
appeal, the state nonetheless argued that no tolling should be permitted for
the period between when Robinson filed his petition with the California
Supreme Court and when that court decided it, because the untimely
petition was not “properly filed.” Because the state intentionally
relinquished the argument in the district court, we will not consider it on
appeal. Wood v. Milyard, 132 S. Ct. 1826, 1834–35 (2012).
8
Robinson did not appeal the district court’s determination that he was
not entitled to tolling for the 91-day period.
ROBINSON V. LEWIS 17
his briefing before our court. He has therefore waived it.9
See United States v. Kama, 394 F.3d 1236, 1238 (9th Cir.
2005).
B
Because there is no issue of good cause in this case, the
question of the permissible length of an unjustified delay is
squarely presented for the California Supreme Court’s
review. For the reasons stated above, we need guidance from
the California Supreme Court in order to determine accurately
whether Robinson’s appeal was timely filed in the California
Court of Appeal.
An answer to this question will determine the outcome of
this case.10 If 66 days is a substantial delay, Robinson’s
9
Even had Robinson not waived this argument, our precedent dictates
that we reject it. See Waldrip v. Hall, 548 F.3d 729, 736–37 (9th Cir.
2008) (rejecting a petitioner’s justifications for delay when he had access
to a library and his revised petition was nearly identical to his first);
Stewart, 757 F.3d at 933 n.3, 937 (rejecting a pro se petitioner’s argument
that his delay was justified by his inability to research claims when he
eventually presented the same claims); see also Velasquez, 639 F.3d at
968.
10
Robinson argues he is entitled to equitable tolling because he did not
know that he was required to file an appeal in the California Court of
Appeal within 60 days or risk having a federal court conclude that the
petition was not “properly filed” for purposes of 28 U.S.C. § 2244(d)(1).
Robinson waived this claim by not raising it to the district court. See
Whittaker Corp. v. Execuair Corp., 953 F.2d 510, 515 (9th Cir. 1992). In
any event, we would lack jurisdiction to consider this claim. Robinson
filed his state habeas petitions after Saffold and Chavis were decided, and
we have held that prisoners who filed claims after Saffold had adequate
notice “that federal courts would address the timeliness of [their]
petition[s] in the event that the California courts neglected to do so.”
18 ROBINSON V. LEWIS
federal habeas petition is untimely and the district court
properly dismissed it. If it is not a substantial delay, his
federal habeas petition was timely, and we will reverse and
remand for the petition to be considered on the merits. Under
our precedent, absent guidance from the California Supreme
Court, we could hold either that the 66-day period is tolled
because it is not substantially longer than the 30 to 60 days
other states permit, cf. Chaffer, 592 F.3d at 1048, or we could
hold it is not tolled because it is beyond Chavis’s 30 to 60-
day benchmark and no good cause exists, see Stewart, 757
F.3d at 935–36. We would prefer to have California’s
guidance on this important issue, and defer to California’s
determination of what constitutes a timely filing in state
court. We therefore respectfully ask that the California
Supreme Court decide the certified question.
III
The Clerk of Court is hereby directed to transmit
forthwith to the California Supreme Court, under official seal
of the Ninth Circuit, a copy of this order and request for
certification and all relevant briefs and excerpts of record
pursuant to California Rule of Court 8.548. Submission of
this case is withdrawn, and the case will be resubmitted
following receipt of the California Supreme Court’s opinion
on the certified question or notification that it declines to
answer the certified question. The panel shall retain
jurisdiction over further proceedings in this court. The
parties shall notify the Clerk of this court within one week
after the California Supreme Court accepts or rejects
Velasquez, 639 F.3d at 969. Therefore, Robinson has not “made a
substantial showing of the denial of a constitutional right,” which is a
prerequisite to taking an appeal. 28 U.S.C. § 2253(c)(2).
ROBINSON V. LEWIS 19
certification. In the event the California Supreme Court
grants certification, the parties shall notify the Clerk within
one week after the court renders its opinion.
The caption of this case is:
No. 14-15125
JULIUS M. ROBINSON,
Petitioner - Appellant,
v.
G. W. LEWIS,
Respondent - Appellee.
Counsel for the parties are as follows:
For Petitioner-Appellant: Heather E. Williams, Federal
Defender; David Hare Harshaw, III, Assistant Federal Public
Defender, 801 I Street, 3rd Floor, Sacramento, CA 95814.
For Respondent-Appellee: Kamala D. Harris, Attorney
General of California; Michael P. Farrell, Senior Assistant
Attorney General; Brian G. Smiley, Supervising Deputy
Attorney General; David Andrew Eldridge, Deputy Attorney
General, 1300 I Street, Suite 125, P.O. Box 944255,
Sacramento, CA 94244
CERTIFICATION REQUESTED; SUBMISSION
VACATED.