Summary
holding that state court's untimeliness determination renders petition not "properly filed" within meaning of 28 U.S.C. section 2244(d)
Summary of this case from Leon v. CallahanOpinion
No. 02-56022.
Submitted August 7, 2003. Submission Deferred March 8, 2004. Resubmitted October 6, 2005.
This panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed October 6, 2005. Amended March 7, 2006.
Jerry D. Whatley, Santa Barbara, CA, for the appellant.
Theresa A. Cochrane, Deputy Attorney General, Los Angeles, CA, for the appellee.
Appeal from the United States District Court for the Central District of California; David O. Carter, District Judge, Presiding. D.C. No. CV-99-00091-DOC(MAN).
ORDER
The opinion filed October 6, 2005, and published at 425 F.3d 1145 (9th Cir. 2005), is amended as follows:
425 F.3d at 1147, fn 6: Delete in its entirety and replace with the following:
The superior court ultimately denied Bonner's 1995 petition in May 1997. The denial contained no reasoning, and gave no explanation for the court's late action. We thus look through the May 1997 denial to the February 1997 denial, and presume the two petitions were denied for the same reasons. See Ylst v. Nunnemaker, 501 U.S. 797, 803, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991).
With the opinion thus amended, the panel has voted unanimously to deny the petition for rehearing. Judge Kozinski has voted to deny the petition for rehearing en banc, and Judges T.G. Nelson and Restani recommended denial.
The full court has been advised of the petition for rehearing en banc and no active judge has requested a vote on whether to rehear the matter en banc. Fed.R.App.P. 35.
The petition for rehearing is DENIED and the petition for rehearing en banc is DENIED.
No subsequent petitions for rehearing or petitions for rehearing en banc may be filed.