Freddy Curiel v. Amy Miller

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FREDDY CURIEL, No. 11-56949
Petitioner-Appellant,
D.C. No.
v. 8:10-cv-00301-DDP-FMO
AMY MILLER, Warden,
Respondent-Appellee. OPINION
Appeal from the United States District Court
for the Central District of California
Dean D. Pregerson, District Judge, Presiding
Argued and Submitted
August 28, 2014—Pasadena, California
Filed March 19, 2015
Before: Diarmuid F. O’Scannlain, Johnnie B. Rawlinson,
and Jay S. Bybee, Circuit Judges.
Opinion by Judge O’Scannlain
2 CURIEL V. MILLER
SUMMARY*
Habeas Corpus
The panel affirmed the district court’s order dismissing as
untimely California state prisoner Freddy Curiel’s habeas
corpus petition brought pursuant to 28 U.S.C. § 2254.
The panel held that Curiel is not entitled to statutory
tolling of AEDPA’s one-year statute of limitations during the
time in which his state post-conviction petition was pending.
The panel explained that the California Supreme Court’s
citations to In re Swain and People v. Duvall, in its two-line
denial of Curiel’s petition, do not overcome the presumption
that the California Supreme Court did not silently disregard
the lower court’s determination that the petition was
untimely.
The panel rejected Curiel’s contention that he is entitled
to equitable tolling due to the actions of his former trial
counsel. The panel explained that even if it is true that Curiel
could not file his habeas petition until his trial counsel
provided him with the trial files, Curiel had ample time to file
a protective federal petition. The panel wrote that Curiel’s
pro se status does not change the result.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
CURIEL V. MILLER 3
COUNSEL
Jan B. Norman, Davis, California, argued the cause and filed
the briefs for the petitioner.
Kevin Vienna, Supervising Deputy Attorney General for the
State of California, San Diego, California, argued the cause
for respondent. Angela M. Borzachillo, Deputy Attorney
General for the State of California, San Diego California,
filed the briefs for the petitioner.
OPINION
O’SCANNLAIN, Circuit Judge:
We must decide whether a California prisoner’s state
habeas petition was timely filed under the Antiterrorism and
Effective Death Penalty Act.
I
In 2006, Freddy Curiel was convicted by a California
Superior Court jury of first-degree murder and street
terrorism. He was sentenced to life in prison without the
possibility of parole, plus twenty-five years.1 Id.Curiel appealed his conviction to the California Court of
Appeal and, thereafter, to the California Supreme Court,
which denied his petition for review on June 11, 2008. On
May 12, 2009, Curiel filed a petition for a writ of habeas
1
As Curiel notes, because the issue on appeal is timeliness, “a summary
of the state trial facts is not relevant.”
4 CURIEL V. MILLER
corpus with the Orange County Superior Court, which was
denied on the “separate and independent grounds” that it was
untimely and unmeritorious. Curiel filed a further petition
with the California Court of Appeal on July 7, 2009, but that
court summarily denied it without comment or citation to
authority. On September 7, 2009, Curiel filed a third petition,
this time with the California Supreme Court, which was
denied in a two-line decision.
Six months later, on March 8, 2010, Curiel filed his
federal habeas petition in district court, which dismissed it
with prejudice on the ground that it was untimely, and denied
Curiel’s motion for a certificate of appealability (COA). We
issued a COA on the following question:
[W]hether the district court erred in
dismissing appellant’s 28 U.S.C. § 2254petition as untimely filed, including whether
appellant was entitled to statutory tolling
during the pendency of his state habeas
petitions filed in the trial court and the
California Court of Appeal, and whether
appellant was entitled to equitable tolling
based on counsel’s delay in sending appellant
his legal file.
II
The only issue on appeal is whether the district court
erred in determining that Curiel’s federal habeas petition was
untimely filed.
Under the Antiterrorism and Effective Death Penalty Act
(AEDPA), after judgment becomes final on direct review, a
CURIEL V. MILLER 5
state prisoner has one year to file a petition for a writ of
habeas corpus in federal court. 28 U.S.C. § 2244(d)(1)(A).
Curiel acknowledges that the judgment on direct review
became final on September 9, 2008. Thus, he had until
September 9, 2009 to file his federal habeas petition, but he
did not file it until March 8, 2010, well past the statute of
limitations deadline. As Curiel concedes, unless he is entitled
to statutory or equitable tolling, his petition was untimely,
and the district court should be affirmed.
We review the district court’s order dismissing Curiel’s
habeas petition de novo. Espinoza-Matthews v. California,
432 F.3d 1021, 1025 (9th Cir. 2005). We also review de novo
whether the statute of limitations should be tolled on statutory
or equitable grounds. Id.III
Curiel first argues that his petition was statutorily tolled
during the pendency of his state court petitions.
A
The AEDPA one-year statute of limitations is subject to
tolling 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.”
28 U.S.C. § 2244(d)(2) (emphasis added).
We look to state law to determine whether an application
is “properly filed” under § 2244(d)(2). As the Supreme Court
has explained, “[w]hen a postconviction petition is untimely
under state law, that [is] the end of the matter for purposes of
§ 2244(d)(2).” Pace v. DiGuglielmo, 544 U.S. 408, 414
6 CURIEL V. MILLER
(2005) (internal quotation marks omitted). The question,
then, is whether Curiel’s state petition was untimely under
California law.
Such question is resolved by looking to whether the
highest state court to render a decision on the petition, here
the California Supreme Court, found it timely. Campbell v.
Henry, 614 F.3d 1056, 1061 (9th Cir. 2010) (“[I]f the highest
court to render a decision determines that the claim is timely,
then that claim was timely when it was before the lower
court.”).
1
To understand what the California Supreme Court
determined here, we must parse the meaning of its two-line
denial of Curiel’s petition. The denial reads in full:
The petition for writ of habeas corpus is
denied. (See In re Swain (1949) 34 Cal.2d
300, 304; People v. Duvall (1995) 9 Cal.4th
464, 474.)
In interpreting this laconic statement, we are guided by
the Supreme Court’s declaration that, when “the last reasoned
opinion on the claim explicitly imposes a procedural default,
we will presume that a later decision rejecting the claim did
not silently disregard that bar and consider the merits.” Ylst
v. Nunnemaker, 501 U.S. 797, 803 (1991). We presume that
the California Supreme Court agreed with the lower court
determination that the petition was untimely, unless “strong
evidence” rebuts such a presumption. See id. at 804; Bonner
v. Carey, 425 F.3d 1145, 1148 n.13 (9th Cir. 2005), amended
by 439 F.3d 993, 994 (9th Cir. 2006).
CURIEL V. MILLER 7
While their import is far from clear, the citations—to
pages in Swain and Duvall that recite basic habeas procedural
requirements2—do not constitute the requisite “strong
evidence” to overcome the presumption that the California
Supreme Court did not “silently disregard” the lower court’s
reasoning. See Ylst, 501 U.S. at 803–04. As explained by the
Supreme Court, even when a state supreme court’s otherwise
2
In Swain, the California Supreme Court denied the habeas petition of
Cecil Swain on insufficient pleading grounds. In re Swain, 34 Cal.2d 300,
301–04 (1949); see also Ylst, 501 U.S. at 805 (describing Swain as
“hold[ing] that facts relied upon in a habeas petition must be alleged with
particularity”). On the page cited in the denial of Curiel’s petition, the
Swain court noted that its conclusions did not amount to “a ruling on the
merits” and that it was only enforcing its rule that a habeas petitioner
“allege with particularity the facts upon which he would have a final
judgment overturned and that he fully disclose his reasons for delaying in
the presentation of those facts.” Swain, 34 Cal.2d at 304.
Inasmuch as it indicates anything, the “See” citation to this page of
Swain indicates that the California Supreme Court found Curiel’s
pleadings insufficient. In other words, the citation does not indicate
affirmative agreement or disagreement with the Superior Court’s
timeliness determination.
The pin-cite of Duvall is also of little help here. On the cited page the
California Supreme Court set out to “summariz[e] the applicable
procedural requirements” for habeas corpus petitions. Duvall, 9 Cal.4th
at 474. Such summary includes an emphasis on the petitioner’s “heavy
burden initially to plead sufficient grounds for relief, and then later to
prove them,” and an explanation that the petition must “state fully and
with particularity the facts on which relief is sought” and consist of more
than only “[c]onclusory allegations.” Id.Taken together, the citations to Swain and Duvall appear to involve
only broad discussions of the pleading required in habeas petitions. To
conclude from such citations that the California Supreme Court
affirmatively disagreed with the Orange County Superior Court would be
unwarranted.
8 CURIEL V. MILLER
unexplained denial of a habeas petition includes citations, the
state court’s failure to elaborate on its reasoning renders its
order uninformative as to whether it concluded the petition
was timely. Id. at 805.
Indeed, even if we were to take the ambiguous citations
to Swain and Duvall as the equivalent of the California
Supreme Court declaring it resolved Curiel’s petition “on the
merits,” we still would not be compelled to conclude Curiel’s
petition was timely. Even “a California Supreme Court order
denying a petition ‘on the merits’ does not automatically
indicate that the petition was timely filed.” Evans v. Chavis,
546 U.S. 189, 197 (2006) (citing Carey v. Saffold, 536 U.S.
214 (2002)).
As the Supreme Court has instructed us:
[T]he Ninth Circuit must not take “such
words” (i.e., the words “on the merits”) as “an
absolute bellwether” on the timeliness
question. We pointed out that the Circuit’s
contrary approach (i.e., an approach that
presumed that an order denying a petition “on
the merits” meant that the petition was timely)
would lead to the tolling of AEDPA’s
limitations period in circumstances where the
law does not permit tolling.
Id. at 194–95 (citations omitted) (emphasis omitted). Further,
we must take heed of the Supreme Court’s direction that
“where a California Supreme Court order simply states,
‘Petition for writ of habeas corpus . . . is DENIED,’ and does
not contain the words ‘on the merits,’ it is even less likely the
California Supreme Court had considered the petition timely
CURIEL V. MILLER 9
on the merits.” Trigueros v. Adams, 658 F.3d 983, 990 (9th
Cir. 2011) (quoting Evans, 546 U.S. at 195, 197).
Admittedly, here the California Supreme Court did
slightly more than state that Curiel’s petition was denied: it
also gave a “See” citation to Swain and Duvall. See Bonner,
425 F.3d at 1148 n.13 (describing a summary denial as one
made “without citation to any authority”). But see Bailey v.
Rae, 339 F.3d 1107, 1112–13 (9th Cir. 2003) (describing the
look-through doctrine as applying to un-explained but also
ambiguous state court decisions).
But such a cryptic citation hardly indicates that the
California Supreme Court intended to override the reasoned
opinion of the Superior Court of California. To conclude
otherwise would be to assert that by two ambiguous “See”
citations in a two-line denial, the California Supreme Court
intended to override the reasoning of the Superior Court and
conclude that Curiel’s nearly three-year delay did not render
his petition untimely. Such an assertion strains credulity.
As Curiel has failed to provide “strong evidence” to
overcome the presumption that the California Supreme Court
“did not silently disregard” the timeliness decision of the
lower state court, we must conclude that the state supreme
court decided that his state petitions were not timely filed.
See Ylst, 501 U.S. at 803, 805. Curiel is thus not entitled to
statutory tolling of AEDPA’s one-year statute of limitations.
10 CURIEL V. MILLER
B
1
Curiel also argues that the one-year limitations period
should be tolled for equitable reasons. In order to receive
equitable tolling, a habeas petitioner must show “(1) that he
has been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way and prevented
timely filing.” Holland v. Florida, 560 U.S. 631, 649 (2010)
(citation and internal quotation marks omitted). “Under
[Ninth Circuit] cases, equitable tolling is available . . . only
when extraordinary circumstances beyond a prisoner’s
control make it impossible to file a petition on time and the
extraordinary circumstances were the cause of [the
prisoner’s] untimeliness.” Bills v. Clark, 628 F.3d 1092,
1097 (9th Cir. 2010) (second alteration in original) (citation
and internal quotation marks omitted). This is a “very high
threshold.” Lee v. Lampert, 653 F.3d 929, 937 (9th Cir.
2011) (en banc) (citation and internal quotation marks
omitted).
2
Curiel alleges that his delay in filing his federal habeas
petition was due to the actions of his former trial counsel.
According to Curiel, he could not file his federal habeas
petition until his trial counsel provided him with the trial
files.
Even assuming that Curiel’s allegations are true, Curiel
received his trial files in March 2009, which left him several
months before the September 2009 deadline to file his federal
habeas petition. He could easily have met the deadline by,
CURIEL V. MILLER 11
for instance, “filing a ‘protective’ petition in federal court and
asking the federal court to stay and abey the federal habeas
proceedings until state remedies [were] exhausted,” as the
Supreme Court has suggested doing when state habeas
proceedings might run up against the AEDPA filing deadline.
Pace, 544 U.S. at 416. Curiel responds that he “reasonably
believed that the statute of limitations was tolled as of the
time he filed his first state habeas petition.” But the Superior
Court denied his petition as untimely on June 10, 2009, and
the Court of Appeal did the same on August 6, 2009. Thus,
with more than a month remaining before the statute of
limitations ran out, two state courts had informed Curiel that
his state petition was untimely, giving Curiel ample time to
file a protective federal petition.
Perhaps Curiel’s pro se status explains his lack of
understanding of the subtleties of habeas practice. Regardless
of whether that is true, this Court has held that “a pro se
petitioner’s lack of legal sophistication is not, by itself, an
extraordinary circumstance warranting equitable tolling.”
Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006).
Therefore Curiel’s pro se status does not change the result.
Because Curiel cannot show that his trial counsel’s
actions made it “impossible” for him to meet the AEDPA
deadline and that such actions were “the cause” of his failure
to do so, he is not entitled to equitable tolling. Bills, 628 F.3d
at 1097 (emphasis omitted).
12 CURIEL V. MILLER
III
The district court’s dismissal of Curiel’s federal habeas
petition as untimely is
AFFIRMED.