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Bunney v. Mitchell

United States Court of Appeals, Ninth Circuit
Mar 5, 2001
262 F.3d 973 (9th Cir. 2001)

Summary

holding that habeas petitioners are entitled to an additional 30 days tolling following dismissal of their state petitions by the California Supreme Court

Summary of this case from Smith v. Ratelle

Opinion

No. 00-15432.

Argued and Submitted January 10, 2001.

Opinion Filed March 5, 2001. Opinion and Submission Withdrawn May 10, 2001. Resubmitted August 16, 2001. Filed August 28, 2001.

Michael Satris, Bolinas, California, for the petitioner-appellant.

Martin S. Kaye, Deputy Attorney General, San Francisco, California, for the respondent-appellee.

Appeal from the United States District Court for the Northern District of California; Saundra B. Armstrong, District Judge, Presiding. D.C. No. CV-97-03282-SBA.

Before: GOODWIN, GRABER, and PAEZ, Circuit Judges.



In 1982, Petitioner Marcia Ellen Bunney was convicted of first-degree murder in California. On September 4, 1997, she filed a petition for a writ of habeas corpus in district court, pursuant to 28 U.S.C. § 2254. The district court dismissed the petition as untimely.

We initially affirmed that dismissal, Bunney v. Mitchell, 241 F.3d 1151 (9th Cir. 2001), then withdrew our opinion and certified to the California Supreme Court the following question:

When is the summary denial of a petition for habeas corpus by the California Supreme Court "final": when filed, 30 days after filing, or at some other time?

Bunney v. Mitchell, 249 F.3d 1188, 1188-89 (9th Cir. 2001). The California Supreme Court denied certification and informed us that it currently is revising the relevant California Rules of Court.

Prisoners like Petitioner, whose convictions became final before the Anti-terrorism and Effective Death Penalty Act of 1996 (AEDPA) was enacted, must file their petitions for habeas corpus within one year of AEDPA's effective date, April 24, 1996. Saffold v. Newland, 250 F.3d 1262, 1265 (9th Cir. 2000). That one-year period ended on April 24, 1997. Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001).

Petitioner filed her petition 133 days later, on September 4, 1997. Nevertheless, the petition was timely. Under 28 U.S.C. § 2244(d)(2), the period "during which a properly filed application for State post-conviction or other collateral review . . . is pending shall not be counted" toward AEDPA's one-year statute of limitations. Petitioner filed a petition for a writ of habeas corpus in the California Supreme Court on February 14, 1997. That petition was denied on May 28, 1997. Rule 24 of the California Rules of Court provides that "[a] decision of the Supreme Court becomes final 30 days after filing." Under Rule 24, a denial of a habeas petition within the California Supreme Court's original jurisdiction is not final for 30 days (and therefore is subject to further action during that time). See People v. Carrington, 40 Cal.App.3d 647, 650, 115 Cal.Rptr. 294 (1974) (stating that a denial of a writ petition is a "decision" within the meaning of Rule 24). Thus, the denial of Petitioner's state-court habeas petition was not final until June 27, 1997. For purposes of AEDPA's statute of limitations, Petitioner's "clock" began to run again the next day, June 28, 1997. Patterson, 251 F.3d at 1247.

That period of tolling — February 14, 1997, through June 27, 1997 — is 134 days. As noted, Petitioner filed her federal-court petition for habeas corpus 133 days after AEDPA's statute of limitations ordinarily would have run, in the absence of any period of tolling. Because the number of days that the statute of limitations was tolled exceeds the number of days after April 24, 1997, that the petition was filed, it follows that the petition was not untimely.

In view of our conclusion that the petition was timely, it is unnecessary for us to address the other issues that Petitioner raises in this appeal.

REVERSED and REMANDED.


Summaries of

Bunney v. Mitchell

United States Court of Appeals, Ninth Circuit
Mar 5, 2001
262 F.3d 973 (9th Cir. 2001)

holding that habeas petitioners are entitled to an additional 30 days tolling following dismissal of their state petitions by the California Supreme Court

Summary of this case from Smith v. Ratelle

holding that California Supreme Court's denial of habeas petition becomes final thirty days after filing

Summary of this case from Fail v. Hubbard

In Bunney v. Mitchell, 262 F.3d 973 (9th Cir. 2001) (per curiam), a panel of this circuit issued a published, and therefore controlling, opinion that resolved the dispute over whether summary denials by the California Supreme Court are decisions or orders for purposes of calculating the AEDPA statute of limitations.

Summary of this case from Phelps v. Alameida

noting that " decision of the [California] Supreme Court becomes final 30 days after filing."

Summary of this case from Brambles v. Duncan

noting that " decision of the [California] Supreme Court becomes final 30 days after filing."

Summary of this case from Brambles v. Duncan

In Bunney we held that Rule 24 of the California Rules of Court, providing that "[a] decision of the Supreme Court becomes final 30 days after filing," extended the time during which the statute of limitations was tolled under § 2244(d)(2) for those 30 days. Guam has no similar rule extending the time when the decision of its Supreme Court becomes final.

Summary of this case from White v. Klitzkie

tolling limitations period until expiration of 30 days allowed under California law to appeal denial of state habeas petition

Summary of this case from Gladney v. Hall

In Bunney, the Ninth Circuit, interpreting a prior version of Rule 29.4, held an order by the California Supreme Court denying a petition for a writ of habeas corpus became final 30 days after filing.

Summary of this case from Korolev v. Kirkland

tolling continues until 30 days after the California Supreme Court denies habeas petition

Summary of this case from Fairweather v. Alameida

tolling under § 2244(d) ends 30 days after the Supreme Court of California's denial of the final habeas petition is filed because that is when the denial becomes "final" under California Rule of Court 24

Summary of this case from Foley v. Cambra
Case details for

Bunney v. Mitchell

Case Details

Full title:Marcia Ellen BUNNEY, Petitioner-Appellant, v. Gwendolyn MITCHELL, Warden…

Court:United States Court of Appeals, Ninth Circuit

Date published: Mar 5, 2001

Citations

262 F.3d 973 (9th Cir. 2001)

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