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Ninth Circuit Announces State Habeas Petition Remains ‘Pending’ for Purposes of AEDPA 1-Year SOL While State Relief Remains Open Regardless of Whether Petitioner Utilizes It

by Richard Resch

The U.S. Court of Appeals for the Ninth Circuit held that a postconviction relief (“PCR”) application in Arizona is “pending as long as a state avenue of relief remains open, whether or not a petitioner takes advantage of it” and thus tolls the Antiterrorism and Effective Death Penalty Act of 1996’s (“AEDPA”) one-year statute of limitations period – 28 U.S.C. § 2244(d)(1) – for filing a federal habeas petition under 28 U.S.C. § 2254.

In 2013, Paul Melville was convicted of two counts of armed robbery and four counts of aggravated assault. He was sentenced to an 18-year prison term. His convictions were affirmed on direct review by the Arizona Court of Appeals on July 29, 2014. The Court summarized the key dates as follows:

July 29, 2014 - Conviction affirmed by Arizona Court of Appeals on direct appeal

September 26, 2014 - PCR petition signed by Melville and delivered to prison officials for mailing to Maricopa County Superior Court

September 29, 2014 - Expiration of extension of time to petition the Arizona Supreme Court for review of affirmance by Arizona Court of Appeals on direct review of conviction (no such petition was filed)

October 1, 2014 - PCR petition stamped as filed in Maricopa County Superior Court

April 18, 2017 - Arizona Court of Appeals granted review of denial of PCR petition by Superior Court but denied relief

June 1, 2017 - Expiration of extension of time granted by Arizona Court of Appeals to move that court for reconsideration of its denial of PCR relief (no such motion was filed)

June 7, 2017 - Arizona Court of Appeals mandate issued

June 1, 2018 - Federal habeas petition signed by Melville and delivered to prison officials for mailing to federal district court

June 4, 2018 - Federal habeas petition stamped as filed in federal district court

On June 1, 2018, Melville filed a habeas petition in the U.S. District Court for the District of Arizona. A magistrate judge issued a Report and Recommendation (“R&R”). The R&R concluded that the petition was untimely because the state Court of Appeals affirmed his convictions and sentences on July 29, 2014, so his judgment became final on September 2, 2014, following the expiration of the 35-day period under state law to seek review in the state Supreme Court. 

The District Court adopted the R&R and determined that Melville’s federal habeas petition was untimely because: “As the limitations period was triggered on September 2, 2014, the Magistrate Judge concluded that 29 days of the limitations period ran between September 2, 2014, and October 1, 2014, when Melville filed his PCR petition, statutorily tolling the limitations period. The remaining limitations period began on June 7, 2017, and expired on May 9, 2018, 336 days after the appeals court issued its mandate finalizing its order denying PCR relief.” Melville timely appealed.

The Court began by noting it reviews de novo a District Court’s determination to deny a habeas petition as time-barred. Flemming v. Matteson, 26 F.4th 1136 (9th Cir. 2022).

The Court stated that the District Court got key dates wrong. First, the District Court concluded that Melville’s conviction became final on September 2, 2014, but that is not correct. The Court pointed out that the Arizona Supreme Court issued an order granting Melville an extension to file his petition for review until September 29, 2014, and that is the date his judgment became final under federal law, which states that a judgment becomes final “by the conclusion of direct review or the expiration of the time for seeking such review.” § 2244(d)(1)(A).

Second, the District Court miscalculated the date on which Melville initiated his state postconviction proceeding, viz., October 1, 2014. But again, that is not the correct date. The Court explained that the District Court failed to apply Arizona’s Prison Mailbox Rule for pro se postconviction review filings, which holds that a petition is deemed filed on the date the prisoner delivers it to prison officials for mailing. State v. Rosario, 987 P.2d 226 (Ariz. Ct. App. 1999); Orpiada v. McDaniel, 750 F.3d 1086 (9th Cir. 2014). The record indicates that Melville signed and dated his notice of postconviction relief on September 26, 2014, so that is the date he is deemed to have filed his state postconviction petition for relief, the Court declared. Butler v. Long, 752 F.3d 1177 (9th Cir. 2014) (per curiam) (“We assume that [the prisoner] turned his petition over to prison authorities on the same day he signed it and apply the mailbox rule.”).

Third, the Court stated that the Prison Mailbox Rule also applies to pro se federal habeas petitions. Porter v. Ollison, 620 F.3d 952 (9th Cir. 2010). So once more, the District Court’s determination that Melville filed his federal petition on June 4, 2018, the date of the court clerk’s stamp, was incorrect. Under the Prison Mailbox Rule, he filed it on June 1, 2018, the date it was placed in the prison’s mailing system, the Court stated.

With the matter of the correct dates resolved, the Court turned its attention to the actual legal question in the case: “When did Melville’s state PCR application cease to be ‘pending’ under § 2244(d)(2), ending the statutory tolling period and starting the clock on the one-year period within which Melville had to file the federal habeas petition?”

The Court stated that the U.S. Supreme Court has instructed that the term “pending” for purposes of § 2244(d)(2) means “until the application has achieved final resolution through the State’s post-conviction procedures.” Carey v. Saffold, 536 U.S. 214 (2002). Consequently, to determine when a state postconviction application is no longer “pending” for purposes of statutory tolling, the relevant state laws and procedures must be examined. Id.

Applying the foregoing rule to the present case, the Court concluded that Melville’s postconviction relief application ceased to be pending on June 1, 2017. It explained that the state Court of Appeals denied his petition for postconviction relief on April 18, 2017, and under state law, he received an extension of time to file a motion for reconsideration until June 1, 2017. Although he never actually filed a motion, “he could have done so properly and timely under Arizona law and procedure,” the Court explained. Thus, the Court concluded that June 1, 2017, was when Melville’s state postconviction petition ceased to be pending because that was the date on which the petition had “achieved final resolution through the State’s post-conviction procedures.” Carey

The Court rejected the State’s argument that Melville’s petition ceased to be pending on April 18, 2017, when the state Court of Appeals denied his petition because Melville never filed a motion of reconsideration. The Court explained: “The Arizona Court of Appeals’ decision to grant an extension of time for reconsideration deferred a final resolution of Melville’s post-conviction petition because a state avenue for relief remained open, whether or not Melville took advantage of it.” (emphasis supplied)

The Court summarized the governing dates by stating Melville’s convictions became final on September 29, 2014; he initiated state postconviction proceedings on September 26, 2014; statutory tolling began immediately; the AEDPA one-year limitations period began to run on June 2, 2017 – the day after his state postconviction petition ceased to be pending; he filed his federal habeas petition on June 1, 2018, which was the final day he could timely file the petition. Thus, the Court held that Melville’s federal habeas petition was timely filed.

Accordingly, the Court reversed the District Court’s order dismissing Melville’s petition as untimely filed and remanded for further proceedings. See: Melville v. Shinn, 68 F.4th 1154 (9th Cir. 2023).



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