California Supreme Court Announces New Time Limit for Habeas ‘Appeal’ Stages, Clarifying Tolling for Federal Habeas Petitioners
Almost nine years ago, Julius Robinson filed a habeas corpus petition in a California superior court, challenging his indeterminate 205-years-to-life sentence for premeditated murder and gun charges. When the court denied his petition, Robinson filed a new petition in the California Court of Appeal, raising the same issues 66 days later. That court denied his petition, and he filed a new petition in the California Supreme Court, which was denied. When he filed a federal habeas petition in federal court under 28 U.S.C. § 2254, it was denied as untimely because he waited too long between the superior court denial and filing in the Court of Appeal – 66 days.
On appeal to the U.S. Court of Appeals for the Ninth Circuit, Robinson argued that the 66-day period was not too long, and this brought up an issue that has perplexed federal courts handling habeas petitions by California prisoners: “At what point in time is [a] 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?” That’s the question the Ninth Circuit asked the California Supreme Court to answer over five years ago in Robinson v. Lewis, 795 F.3d 926 (Cal. 2015).
AEDPA and California Habeas Procedure
This case examines the interplay between the federal Antiterrorism and Effective Death Penalty Act (“AEDPA”) and California’s habeas corpus procedure. Under the AEDPA, a state prisoner has just one year to file a habeas corpus petition in federal court after his conviction becomes final. But first, he must exhaust his state postconviction remedies, and the one-year AEDPA clock is “tolled” while those proceedings are “pending” in the state courts. 28 U.S.C. § 2244(d)(2).
Most states have a postconviction review process that allows for appeals of denials. But California does not. Instead, California prisoners must file a new habeas petition in the Court of Appeal after a denial in the superior court and then typically a new petition (again) in the California Supreme Court thereafter. It’s been considered a sort-of appeal process for California habeas petitioners, even though there’s no statutory right to appeal a habeas denial in the California courts. Evans v. Chavis, 546 U.S. 189 (2006) (explaining California’s “special” habeas process).
And this causes a problem in the federal courts in determining when the AEDPA clock is tolled while a California habeas petition is pending. This is because the time intervals between the petitions in subsequent higher courts are included in the tolling period, like an appeal in other states. But that’s only if the next petition is filed within a “reasonable” time. The U.S. Supreme Court has ruled that California’s serial habeas process to “appeal” a denial is “the equivalent of a notice of appeal” in other state systems and that the 30 to 60 day notice of appeal time limit could be presumed to apply in California as well. Chavis.
These “gap delays,” as the California Supreme Court has called these intervals between habeas petitions, are not counted by state courts as separate time periods for filing challenges to habeas denials, but they are part of the overall delay in bringing the claims.
California’s New Habeas ‘Safe Harbor’
About 18 years ago, the U.S. Supreme Court said the California Supreme Court could help clarify tolling under § 2244(d)(2) by setting some time limits for habeas petitions in its courts. Carey v. Saffold, 536 U.S. 214 (2002). The California court finally obliged.
Answering the Ninth Circuit’s question, the Court held that a “new petition filed in a higher court within 120 days of the lower court’s denial will never be considered untimely due to gap delay.” This “safe harbor,” as the Court called it, is not an absolute deadline but is subject to extension for good cause. “Providing a safe harbor simply means that delay beyond the specified time would be subject to the normal Robbins analysis,” the Court explained. The California Supreme Court set the “reasonableness” time standard for habeas petitions in In re Robbins, 959 P.2d 311 (Cal. 1998).
The Court rejected the State’s argument that gap delay should be limited to the same statute of limitations for a notice of appeal. The Court explained that a habeas petition is unlike a notice of appeal and cannot be so easily compared. “A notice of appeal is merely a notice that the party intends to appeal. Record preparation and briefing comes later, and the matter is not submitted in the Court of Appeal until after the case has been fully briefed and argued,” the Court said. “A habeas corpus petition, by contrast, effectively constitutes the first round of briefing and in many cases the only briefing.”
The Court also took a moment to correct the Ninth Circuit’s misunderstanding of the California habeas process and gap delay. It’s the overall delay in bringing a claim that matters, the Court explained, and not any period of gap delay. “The time between levels is just part of that question,” the Court said. “Gap delay ... is relevant to this overall question and might be a significant factor in our timeliness analysis under Robbins, but it is not the question itself.” Once a claim is filed, the State is already “on notice” and gap delay is less of a concern in subsequent petitions, the Court said.
Nevertheless, the Court established a safe harbor of 120 days between petitions where habeas petitioners would “never” be considered too late. Anything beyond that, the Court instructed, “will simply be a relevant factor” in overall timeliness. See: Robinson v. Lewis, 2020 Cal. LEXIS 4360 (2020).
Writer’s Note: For the first time ever, the California Supreme Court finally gave some guidance on what has always been uncertain territory. Federal courts in California have routinely cited notice of appeal deadlines of 30 and 60 days to say that gap delays have gone too long, dismissing countless federal § 2254 petitions. Maybe with such a dramatic and clear statement of the law by the California Supreme Court, those petitioners might be able to reopen their habeas cases under Federal Rule of Civil Procedure 60(b). Gonzalez v. Crosby, 545 U.S. 524 (2005).