Summers v. Schriro

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARILYN GENE SUMMERS, 
Petitioner-Appellant,
v. No. 05-16650
DORA B. SCHRIRO, Director,  D.C. No.
CV-03-00620-CKJ
Warden; TERRY GODDARD,
Attorney General of the State of OPINION
Arizona,
Respondents-Appellees.

Appeal from the United States District Court
for the District of Arizona
William D. Browning, Senior District Judge, Presiding
Argued and Submitted
September 15, 2006—San Francisco, California
Filed March 13, 2007
Before: William A. Fletcher and Johnnie B. Rawlinson,
Circuit Judges, and James V. Selna,* District Judge.
Opinion by Judge William A. Fletcher
*The Honorable James V. Selna, United States District Judge for the
Central District of California, sitting by designation.
2959
2962 SUMMERS v. SCHRIRO
COUNSEL
Daniel F. Davis, Tucson, Arizona, for the petitioner-appellant.
Sherri Tolar Rollison, Office of the Arizona Attorney Gen-
eral, Tucson, Arizona, for the respondents-appellees.
OPINION
W. FLETCHER, Circuit Judge:
In this petition for federal habeas corpus brought under the
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), we hold that an “of-right proceeding,” available
under Arizona Rule of Criminal Procedure 32 to criminal
defendants who plead guilty, is a form of “direct review”
within the meaning of 28 U.S.C. § 2244(d)(1)(A). Because a
Rule 32 of-right proceeding is a form of direct review,
AEDPA’s one-year statute of limitations does not begin to run
until the conclusion of the Rule 32 of-right proceeding and
review of that proceeding, or until the expiration of the time
SUMMERS v. SCHRIRO 2963
for seeking such proceeding or review. We reverse and
remand to the district court for further proceedings.
I. Background
Petitioner-Appellant Marilyn Summers pled guilty in Ari-
zona Superior Court on November 12, 1997, to two counts of
perjury, two counts of theft, and one count of fraudulent
scheme and artifice. On December 15, 1997, she was sen-
tenced to twenty years in prison and seven years of probation,
and was ordered to pay more than $1.5 million in restitution.
By pleading guilty, Summers waived her right to a conven-
tional direct appeal under Arizona law, but she retained the
right to seek review in an “of-right proceeding” under Ari-
zona Rule of Criminal Procedure 32. See Ariz. R. Crim. P.
32.1, 32.4. As we explain below, a Rule 32 of-right proceed-
ing shares a number of attributes with a conventional direct
appeal. The primary difference is that a Rule 32 of-right pro-
ceeding begins in the Arizona Superior Court where the
defendant was convicted and sentenced rather than in the Ari-
zona Court of Appeals.
Summers timely sought review in a Rule 32 of-right pro-
ceeding. On March 7, 2001, the Superior Court for Pima
County dismissed her petition. Summers then petitioned the
Arizona Court of Appeals for discretionary review. The Court
of Appeals granted review but denied relief on April 16, 2002.
On October 31, 2002, the Arizona Supreme Court summarily
denied discretionary review.
On December 12, 2003, Summers petitioned for federal
habeas relief in federal district court under 28 U.S.C. § 2254.
The State of Arizona argued that her petition was time-barred
by 28 U.S.C. § 2244(d)(1)(A), which gives a state prisoner
one year from the “conclusion of direct review or the expira-
tion of the time for seeking such review” to seek federal
habeas relief. The district court dismissed Summers’ petition
as untimely, holding that because she had pled guilty and
2964 SUMMERS v. SCHRIRO
waived the conventional form of direct appeal under Arizona
law, the one-year clock began to run on December 15, 1997,
the date of her sentence and judgment. After applying
AEDPA’s tolling provision to the period during which Sum-
mers’ Rule 32 of-right proceeding was pending in the Arizona
courts, the district court found that Summers’ federal habeas
petition was filed 79 days too late.
Summers appeals, arguing that her Rule 32 of-right pro-
ceeding was a form of “direct review” under 28 U.S.C.
§ 2244(d)(1)(A) that delayed the start of — rather than merely
tolled — the running of the statute of limitations. For the rea-
sons that follow, we agree with Summers.
II. Jurisdiction and Standard of Review
We have jurisdiction to review final district court orders
pursuant to 28 U.S.C. § 1291. We review de novo a district
court’s dismissal of a petition for writ of habeas corpus under
AEDPA’s statute of limitations. Spitsyn v. Moore, 345 F.3d
796, 799 (9th Cir. 2003) (as amended). “We review de novo
questions of statutory interpretation.” Santiago Salgado v.
Garcia, 384 F.3d 769, 771 (9th Cir. 2004).
III. Discussion
Because Summers filed her federal habeas petition after
April 24, 1996, AEDPA applies. Furman v. Wood, 190 F.3d
1002, 1004 (9th Cir. 1999). AEDPA requires state prisoners
to seek federal habeas corpus relief within one year after (1)
“direct review” concludes, or (2) “the time for seeking such
review” expires. 28 U.S.C. § 2244(d)(1)(A). The one-year
limitations period is tolled while a “properly filed application
for State post-conviction or other collateral review . . . is
pending.” Id. § 2244(d)(2).
Summers argues that Arizona’s Rule 32 of-right proceed-
ing, while not a conventional direct appeal, is nonetheless a
SUMMERS v. SCHRIRO 2965
form of “direct review” under § 2244(d)(1)(A). The State of
Arizona argues that a Rule 32 of-right proceeding is a form
of “collateral review” under § 2244(d)(2). Whether an Ari-
zona Rule 32 of-right proceeding is direct or collateral review
under § 2244(d) is a question of first impression in this cir-
cuit.
A. Question of First Impression
[1] We have dealt with Rule 32 in a similar factual context
on one prior occasion. In Isley v. Arizona Department of Cor-
rections, 383 F.3d 1054 (9th Cir. 2004), we reviewed a dis-
trict court holding that the federal habeas petition of Arizona
state prisoner Bradford Isley was untimely under § 2244(d).
Similarly to Summers, Isley had entered a no contest plea,
thereby waiving his right to a conventional direct appeal
under Arizona law. See Isley, 383 F.3d at 1055. Isley timely
filed notice of a Rule 32 of-right proceeding 77 days after his
conviction and sentencing. He filed his actual Rule 32 petition
226 days after filing his notice. Id.
[2] Both Isley, acting pro se, and the State assumed that a
Rule 32 of-right proceeding is collateral review under
§ 2244(d)(2). That is, both parties assumed that AEDPA’s
statute of limitations began to run as of the date of Isley’s sen-
tence and judgment, and that his Rule 32 proceeding tolled,
rather than delayed the start of, the limitations period. Isley
argued that the limitations period was tolled as soon as he
filed his notice. The State argued, instead, that the limitations
period was tolled only when Isley filed his actual petition.
Isley, 383 F.3d at 1055. Without considering the possibility
that a Rule 32 of-right proceeding might be a form of direct
review under § 2244(d)(1)(A) rather than collateral review
under § 2244(d)(2), we concluded that the tolling period
began when Isley filed his notice. Id. at 1056. On the facts,
we held that Isley was entitled to tolling and that his federal
habeas petition was timely filed.
2966 SUMMERS v. SCHRIRO
[3] The State argues, based on Isley, that Summers’ Rule 32
of-right proceeding is collateral review under § 2244(d)(2).
For three reasons, we conclude that Isley does not foreclose
us from considering, as a matter of first impression, whether
Arizona’s Rule 32 of-right proceeding is a form of direct
review under § 2244(d)(1)(A) or a form of collateral review
under § 2244(d)(2).
First, both parties in Isley assumed without discussion that
a Rule 32 of-right proceeding is a form of collateral review
under § 2244(d)(2). Our assumption to that effect in Isley,
based on the parties’ uncontested joint position, was uncon-
sidered dictum. “Judicial assumptions concerning . . . issues
that are not contested are not holdings.” FDIC v. McSweeney,
976 F.2d 532, 535 (9th Cir. 1992) (quoting United States v.
Daniels, 902 F.2d 1238, 1241 (7th Cir. 1990) (quotation
marks omitted)); see also Cetacean Cmty. v. Bush, 386 F.3d
1169, 1173 (9th Cir. 2004); United States v. Joyce, 357 F.3d
921, 925 n.3 (9th Cir. 2004); United States v. Johnson, 256
F.3d 895, 915 (9th Cir. 2001) (en banc) (Kozinski, J., concur-
ring) (“Where it is clear that a statement is made casually and
without analysis, where the statement is uttered in passing
without due consideration of the alternatives, or where it is
merely a prelude to another legal issue that commands the
panel’s full attention, it may be appropriate to re-visit the
issue in a later case.”).
Second, a year after our decision in Isley, the Supreme
Court held in Halbert v. Michigan, 545 U.S. 605 (2005), that
a first-tier “of-right” review procedure available to a plea-
convicted Michigan defendant in lieu of a conventional direct
appeal is a form of “direct review” to which a constitutional
right to counsel attaches under Douglas v. California, 372
U.S. 353 (1963). Halbert, 545 U.S. at 619 (“[T]he Court of
Appeals’ ruling on a plea-convicted defendant’s claims pro-
vides the first, and likely the only, direct review the defen-
dant’s conviction and sentence will receive.” (emphasis
added)). The of-right proceeding available to plea-convicted
SUMMERS v. SCHRIRO 2967
defendants in Michigan is analogous, though not identical, to
a Rule 32 of-right proceeding in Arizona. Although Halbert
did not directly deal with AEDPA, it signals that some non-
traditional state review procedures are forms of direct rather
than collateral review, and it casts doubt on the validity of our
assumption in Isley. See Miller v. Gammie, 335 F.3d 889, 900
(9th Cir. 2003) (en banc).
Third, Arizona courts have explicitly stated, after our deci-
sion in Isley, that a Rule 32 of-right proceeding is a form of
“direct review” rather than collateral review, and that it is “the
functional equivalent of a direct appeal.” State v. Ward, 118
P.3d 1122, 1125-26 (Ariz. Ct. App. 2005) (as amended), rev.
denied (April 20, 2006); see also State v. Cleere, 138 P.3d
1181, 1184 n.2 (Ariz. Ct. App. 2006), rev. denied (June 27,
2006). These statements cast further doubt on our assumption
in Isley. See Pershing Park Villas Homeowners Ass’n v.
United Pac. Ins. Co., 219 F.3d 895, 903 (9th Cir. 2000) (as
amended); Vasquez v. N. County Transit Dist., 292 F.3d 1049,
1054 (9th Cir. 2002) (as amended).
We therefore conclude that, notwithstanding Isley, we may
decide as a matter of first impression the question whether an
of-right proceeding under Arizona’s Rule 32 is direct or col-
lateral review under AEDPA.
B. Analysis
1. “Ordinary, Contemporary, Common Meaning”
[4] The State urges us to hold that the phrase “direct
review” excludes any form of review that is not a “direct
appeal.” But the phrase “direct review” rather than the phrase
“direct appeal” is used in § 2244(d)(1)(A). Because AEDPA
does not define “direct review,” we look to its “ ‘ordinary,
contemporary, common meaning,’ absent an indication Con-
gress intended [it] to bear some different import.” Williams v.
Taylor, 529 U.S. 420, 431 (2000) (citations omitted). In ordi-
2968 SUMMERS v. SCHRIRO
nary legal usage, the definition of “review” is broader than
that of “appeal.” Black’s Law Dictionary (8th ed. 1999)
defines “review” as “[c]onsideration, inspection, or reexami-
nation of a subject or thing,” id. at 1345, while “appeal”
means “[a] proceeding undertaken to have a decision recon-
sidered by a higher authority; esp[ecially] the submission of
a lower court’s or agency’s decision to a higher court for
review and possible reversal.” Id. at 105. Under these defini-
tions, a reexamination by a court of its own earlier decision
can be a “review,” even though it is not a “reconsider[ation]
by a higher authority.” See Duncan v. Walker, 533 U.S. 167,
177 (2001) (suggesting that Congress employed broad con-
structions in AEDPA to take into account state-by-state varia-
tion).
2. Federal or State Law
[5] The federal courts of appeals that have classified state
law procedures for purposes of AEDPA have divided on the
threshold question of whether such a classification presents a
question of state or federal law. The Fourth, Tenth, and Elev-
enth Circuits have treated the classification as a question of
state law. Frasch v. Peguese, 414 F.3d 518, 522 (4th Cir.
2005); Orange v. Calbone, 318 F.3d 1167, 1170 (10th Cir.
2003); Bridges v. Johnson, 284 F.3d 1201, 1202 (11th Cir.
2002). These courts have concluded that “[i]n determining
whether a particular state procedure constitutes part of the
‘direct review’ process for purposes of § 2244(d)(1)(A), a fed-
eral court must defer to underlying state court characterization
of the procedure.” Orange, 318 F.3d at 1170. By contrast, the
Fifth and Sixth Circuits have held that classification, while
heavily informed by state law, is ultimately a question of fed-
eral law. Foreman v. Dretke, 383 F.3d 336, 339 (5th Cir.
2004); Lopez v. Wilson, 426 F.3d 339, 351 (6th Cir. 2005) (en
banc). For two reasons, we adopt the approach of the Fifth
and Sixth Circuits.
First, we have already held, and the Supreme Court has
confirmed, that the question of when a conviction becomes
SUMMERS v. SCHRIRO 2969
“final by the conclusion of direct review,” thus triggering the
one-year statute of limitations under AEDPA, 28 U.S.C.
§ 2244(d), is a question of federal law. White v. Klitzkie, 281
F.3d 920, 923 n.4 (9th Cir. 2002); Clay v. United States, 537
U.S. 522, 531 (2003). Because the question of what consti-
tutes direct review is intertwined with the question of when a
decision on direct review becomes final, it makes sense to
decide both questions by reference to uniform federal law. See
Foreman, 383 F.3d at 338-39.
Second, the Supreme Court has instructed that when “ap-
plying a federal statute that interacts with state procedural
rules” under AEDPA, courts must “look to how a state proce-
dure functions, rather than the particular name that it bears.”
Carey v. Saffold, 536 U.S. 214, 223 (2002); see also Duncan,
533 U.S. at 177 (suggesting that classification under AEDPA
is not governed by “the parlance of a particular jurisdiction”).
Such an approach promotes consistency and predictability in
the application of AEDPA even as it stays true to Congress’s
“purpose,” in enacting AEDPA, “to further the principles of
comity, finality, and federalism.” Williams, 529 U.S. at 436.
[6] In analyzing whether Arizona’s Rule 32 of-right pro-
ceeding is direct review within the meaning of
§ 2244(d)(1)(A), the determinative factor is how it functions
in the Arizona criminal justice system. How Arizona chooses
to characterize its Rule 32 of-right proceeding may affect, but
cannot control, our analysis.
3. Rule 32 Of-Right Proceeding
Arizona’s Constitution guarantees criminal defendants “the
right to appeal in all cases.” Ariz. Const. art. 2, § 24. In 1990,
the voters of Arizona approved the Victims’ Bill of Rights as
an amendment to their Constitution. The Victims’ Bill of
Rights requires that “conclusion of [a] case after the convic-
tion and sentence” be “prompt and final.” See id. § 2.1(A)(10)
& notes; Slayton v. Shumway, 800 P.2d 590 (Ariz. 1990) (in
2970 SUMMERS v. SCHRIRO
banc) (discussing history of Victims’ Rights Bill); State v.
Jimenez, 935 P.2d 920, 922 (Ariz. Ct. App. 1996), rev. denied
(Apr. 29, 1997).
Arizona Rule of Criminal Procedure Rule 32 was originally
adopted in 1973 as a “unified procedure.” Ariz. R. Crim. P.
32.1 general comment. It included all forms of post-
conviction review under Arizona law other than direct appeal,
and it replaced the “different mechanics, requirements and
time limits” that had previously existed. Id.; see also State v.
Whipple, 866 P.2d 1358, 1360 (Ariz. Ct. App. 1993). In 1992,
Arizona Rule of Criminal Procedure 17.1(e) was amended to
read: “By pleading guilty or no contest in a noncapital case,
a defendant waives the right to have the appellate courts
review the proceedings by way of direct appeal, and may seek
review only by filing a petition for post-conviction relief pur-
suant to Rule 32 and, if denied, a petition for review.” Ariz.
R. Crim. P. 17.1(e). Rule 32 was amended at the same time
to add of-right review proceedings. These changes to Rule 17
and Rule 32 were designed to implement the requirement of
the Victim’s Bill of Rights that the conclusion of a criminal
case be “prompt and final” and to lessen the case load of the
Courts of Appeals, but at the same time to obey the continu-
ing command of the state Constitution that criminal defen-
dants have “the right to appeal in all cases.” See Wilson v.
Ellis, 859 P.2d 744, 746 (Ariz. 1993) (in banc); Charles R.
Krull, Eliminating Appeals from Guilty Pleas, Ariz. Att’y,
Oct. 1992, at 34-35. As a result of the 1992 amendments,
Rule 32 is no longer a “unified procedure.” The first and sec-
ond paragraphs of Rule 32.1 now distinguish between “Rule
32 of-right proceeding[s]” and all other Rule 32 post-
conviction proceedings. Ariz. R. Crim. P. 32.1; see Rodriguez
v. Spencer, 412 F.3d 29, 34-36 (1st Cir. 2005) (recognizing
that some state procedures are hybrid for AEDPA classifica-
tion purposes).
To bring an of-right proceeding under Rule 32, a plea-
convicted defendant must provide to the Arizona Superior
SUMMERS v. SCHRIRO 2971
Court, within 90 days of conviction and sentencing in that
court, notice of his or her intent to file a Petition for Post-
Conviction Review. Ariz. R. Crim. P. 32.4(a). When the peti-
tion is filed, the Superior Court must provide an opportunity
for a response and reply. Id. 32.6. If there are colorable claims
for which additional evidence is required, the Superior Court
must hold an evidentiary hearing. Id. 32.6(c), 32.8. Indigent
petitioners in Rule 32 of-right proceedings are entitled to
appointed counsel, even in non-capital cases. Id. 32.4(c)(2).
By contrast, indigent petitioners in other Rule 32 proceedings
are not entitled to appointed counsel in non-capital cases.
State v. Krum, 903 P.2d 596, 600 & n.5 (Ariz. 1995) (in
banc); State v. McDonald, 960 P.2d 644, 645 (Ariz. Ct. App.
1998) (as amended), rev. denied (Feb. 23, 1999). The Supe-
rior Court’s disposition of a Rule 32 of-right proceeding may
include “vacating, reducing, correcting or otherwise chang-
ing” the defendant’s judgment or sentence. Ariz. R. Crim. P.
32.8, 32.5. Unsuccessful Rule 32 of-right petitioners in the
Superior Court may seek discretionary review of the decision
of the Superior Court in the Arizona Court of Appeals and in
the Arizona Supreme Court. Id. at 32.9.
[7] Arizona courts have repeatedly characterized Rule 32
of-right proceedings as the functional equivalent of direct
appeals, and have distinguished them from other Rule 32 pro-
ceedings. The Arizona Supreme Court first considered the
then-newly adopted Rule 32 of-right proceeding in Wilson v.
Ellis. It recognized the right of indigent plea-convicted defen-
dants in a Rule 32 of-right proceeding to a transcript at public
expense, a right otherwise available in a conventional direct
appeal. 859 P.2d at 747. The state Supreme Court held that
the state constitutional right to appeal could not “be waived
merely by a plea or admission,” and that “[i]t was precisely
because of art. 2, § 24 [of the state Constitution] that this
court expressly left open the avenue of appellate review by
[Rule 32 of-right proceeding] in lieu of direct appeal when it
amended the rules . . . .” Id. at 746; see also State v. Smith,
910 P.2d 1, 3 (Ariz. 1996) (in banc) (“[T]he trial court pro-
2972 SUMMERS v. SCHRIRO
vides the pleading defendant a form of post-conviction appel-
late review via motion under Rule 32.” (emphases added)).
[8] In Montgomery v. Sheldon, 889 P.2d 614 (Ariz. 1995)
(in banc) (“Montgomery I”), supplemented by 893 P.2d 1281(in banc) (“Montgomery II”), the Arizona Supreme Court rec-
ognized that a Rule 32 of-right proceeding is “procedurally
distinct” from a conventional direct appeal, but it observed
that as “the only means available for exercising the constitu-
tional right to appellate review,” the proceeding is “analogous
to a direct appeal for a pleading defendant.” Id. at 616, 618
n.5. The Court therefore held that a procedure for withdrawal
of counsel similar to that constitutionally required in direct
appeals by Anders v. California, 386 U.S. 738 (1967), is
required in Rule 32 of-right proceedings. Id. at 618; see also
Smith, 910 P.2d at 3-4. In Montgomery II, the Arizona
Supreme Court reiterated that “a Rule 32 proceeding is the
appeal for a defendant pleading guilty.” 893 P.2d at 1282
(emphasis in original).
In State v. Pruett, 912 P.2d 1357 (Ariz. Ct. App. 1995), rev.
denied (Mar. 19, 1996), the Arizona Court of Appeals held
that, in contrast to other indigent defendants proceeding under
Rule 32, indigent plea-convicted defendants seeking of-right
review are “constitutionally entitled to the effective assistance
of counsel.” Id. at 1359-60; cf. Krum, 903 P.2d at 600 & n.5;
McDonald, 960 P.2d at 645. The Court of Appeals acknowl-
edged the United States Supreme Court’s holding in Pennsyl-
vania v. Finley, 481 U.S. 551 (1987), that no constitutional
right to counsel attached in “post-conviction” proceedings,
but it distinguished Rule 32 of-right review on the ground that
this procedure is, for plea-convicted defendants in Arizona,
“the counterpart of a direct appeal.” Pruett, 912 P.2d at 1359-
60.
Most recently, two Arizona Courts of Appeals have held
that the Supreme Court’s opinion in Blakely v. Washington,
542 U.S. 296 (2004), applies not only to conventional direct
SUMMERS v. SCHRIRO 2973
appeals but also to Rule 32 of-right proceedings that were
pending when Blakely was decided. See Ward, 118 P.3d at
1126-27; Cleere, 138 P.3d at 1184 n.2. In State v. Ward, the
Arizona Court of Appeals, after recognizing that new consti-
tutional rules usually apply retroactively only to “convictions
not yet final on direct review,” and not to cases on “collateral
review,” placed the Rule 32 of-right proceeding squarely in
the former category. 118 P.3d at 1125-26. It described Arizo-
na’s Rule 32 of-right proceeding as “the functional equivalent
of a direct appeal.” Id. at 1126.
Conclusion
[9] We therefore conclude that Arizona’s Rule 32 of-right
proceeding for plea-convicted defendants is a form of direct
review within the meaning of 28 U.S.C. § 2244(d)(1)(A). We
believe that this conclusion is consistent with “the principles
of comity, finality, and federalism” that AEDPA was intended
to promote. Williams, 529 U.S. at 436. Treating Arizona’s
Rule 32 of-right proceeding as a form of direct review helps
ensure that state courts have a full opportunity to consider
state prisoners’ claims before they are presented to the federal
courts. See Duncan, 533 U.S. at 179-80; see also Rodriguez,
412 F.3d at 35. Moreover, because the Rule 32 of-right pro-
ceeding is governed by short, definite deadlines, there is little
danger that recognizing it as a form of direct review will
“open the door to abusive delay.” Pace v. DiGuglielmo, 544
U.S. 408, 413 (2005). In fact, plea-convicted defendants were
provided the of-right proceeding under Rule 32 in lieu of con-
ventional direct appeal precisely because Rule 32 was seen as
a more effective and speedy means to achieve finality.
Finally, treating the Rule 32 of-right proceeding as a form of
direct review helps make the Arizona Constitution’s guaran-
tee of “the right to appeal in all cases” a functioning reality
rather than a mere form of words.
[10] Because Summers’ Rule 32 of-right proceeding was a
form of direct review under § 2244(d)(1)(A), AEDPA’s stat-
2974 SUMMERS v. SCHRIRO
ute of limitations did not begin to run until 90 days after the
Arizona Supreme Court denied her petition for review on
October 31, 2002. See White, 281 F.3d at 923 n.4 (date of
denial of review, not issuance of mandate, is relevant for
AEDPA calculations); Bowen v. Roe, 188 F.3d 1157, 1158-59
(9th Cir. 1999) (“[T]he period of ‘direct review’ . . . includes
the [90-day] period within which a petitioner can file a peti-
tion for a writ of certiorari from the United States Supreme
Court, whether or not the petitioner actually files such a peti-
tion.”). Therefore, Summers had until January 29, 2004 to file
her petition for federal habeas relief, and her December 12,
2003 petition was timely filed.
REVERSED AND REMANDED.