Habeas Hints
by Kent A. Russell

This column provides “habeas hints” to prisoners who are considering or handling habeas corpus petitions as their own attorneys (“in pro per”). The focus of the column is on habeas corpus under AEDPA, the 1996 habeas corpus law which now governs habeas corpus practice throughout the U.S.

HABEAS HINTS – CALIFORNIA COMMENT:

Pace and Bonner:
Avoiding and Fighting “Untimeliness” Rulings Under California Law

by Kent Russell

Recently, the interplay of two decisions, one from the U.S. Supreme Court and one from the Ninth Circuit, has created a potential minefield for California habeas corpus petitioners in the form of “untimeliness” rulings under California law, which can result in a federal court dismissing a petition as untimely even though the state petition was filed within the time limits for statutory tolling set forth under AEDPA (the federal habeas corpus statute).

In Pace v. Guglielmo, 544 U.S. 408 (2005), the U.S. Supreme Court held that, if a state court denies a state habeas petition as “untimely”, that petition was not “properly filed” under state law. In Bonner v. Carey, 425 F.3d 1145 (9th Cir. 2005), the Ninth Circuit held that, because statutory tolling can only be granted for a state habeas petition that was “properly filed”, Pace requires the federal court to deny statutory tolling to a petition that a lower California court had found to be untimely, even though the state petition had been filed within the 15-month-from-finality period that the AEDPA statute of limitations allows. Meanwhile, because California does not have any specific time limits that apply to filing habeas corpus petitions – the only requirement being that any “substantial delay” in the filing be “justified” – Bonner creates a potentially scary scenario whereby a California petitioner who still has time left under the AEDPA statute of limitations, and who files a state habeas corpus petition with the expectation of being granted statutory tolling, is at risk for having a state judge deny the petition as untimely under CA law after the AEDPA limit has expired and it is too late to file a timely federal petition.

Consider the following “Habeas Hints” in anticipating and dealing with the Pace-Bonner dilemma in California.

• Explain all the reasons for delay in filing between the date that direct appeal was denied and the date the first state habeas corpus petition was filed.

Question No. 15 on the printed form that is required for California state habeas corpus petitions invites the petitioner to explain the reasons for any “delay” in the filing of the petition. Use this question to explain, in detail, all the reasons why you waited up to 15 months after the direct appeal was over to file a state habeas corpus petition (e.g., an ongoing investigation into ineffective assistance claims which are outside the record on appeal, lack of funds to hire private counsel, inadequate prison legal resources for pro-pers, etc.).

• File directly in the California Supreme Court if there is no ongoing habeas investigation and your primary purpose is to exhaust claims for federal habeas corpus.

Very few California Superior Court or Court of Appeal judges make favorable rulings of any kind on state habeas corpus. Nevertheless, before Pace and Bonner altered the landscape, it was advisable to file in the lower courts anyway because that bought the petitioner additional time to further develop habeas corpus claims during the months that the petition would be climbing up the ladder to the California Supreme Court. Although that can continue to be a viable strategy in cases where an ongoing investigation is still uncovering facts that should be exhausted before landing in the state’s highest court, there is no need for that extra time when the claims have already been sufficiently developed. Hence, and because California law confers original habeas jurisdiction in the California Supreme Court, it is possible to file a state habeas petition in that court without filing first in the lower courts, which are the ones that have been most prone to issuing untimeliness rulings in non-capital cases.  

Granted, any California appellate court can theoretically refuse to hear a habeas corpus petition that was not previously filed in a lower court, but the California Supreme Court, which is used to hearing Petitions for Review that were filed there solely to accomplish exhaustion, rarely declines to decide a habeas case because it was filed first in that court. Meanwhile, at least to date, the only published California Supreme Court decisions that have imposed time limits of less than 15 months from finality (i.e., the AEDPA limitations period) have been capital cases (see, e.g., Clark and Robbins, the decisions most often cited in imposing a timeliness barrier), where habeas counsel is appointed and, as a result, there are unique “presumptive” time limits that don’t apply to non-capital cases. Therefore, it seems extremely unlikely that the California Supreme Court is going to rule that a non-capital habeas petition which was filed within the AEDPA limitations period is untimely under California law.

Thus, especially where more than 1 year has elapsed since finality, consider bypassing the lower courts entirely and filing directly in the California Supreme Court. If you do take this route, you can state in answer to Question #18 on the printed habeas corpus form, which asks you to explain the reasons for not filing first in a lower court, that one of your objectives is to promptly accomplish exhaustion.

• File a protective petition in federal court before the AEDPA limitations period runs, and ask for stay and abeyance while the California petition is pending.

Pursuant to Rhines v. Weber, 544 U.S. 269 (2005), a state prisoner may file a federal habeas corpus petition and ask for a stay (“stay and abeyance”) pending exhaustion of his claims in the state courts. Although Rhines requires a showing of good cause for a stay, Bonner states that “a petitioner’s reasonable confusion about whether a state filing would be timely will ordinarily constitute ‘good cause’ for him to file in federal court.” Bonner, supra, at fn.20.

Note, however, that one can only obtain stay and abeyance of a “mixed” petition, which is one that contains one or more fully exhausted claims mixed in with one or more unexhausted claims. Therefore, for example, if your only claim is an unexhausted ineffective-assistance claim, seeking stay and abeyance is not an option.

• If you do get an untimeliness ruling from a California court, argue that the federal court is not bound by it because California’s untimeliness rules in non-capital cases are neither well-established nor consistently applied.

As noted above, California’s untimeliness rules for non-capital habeas corpus petitions are virtually non-existent, as there is no statutory time limit for filing habeas petitions other than “reasonableness”, and currently there is no California Supreme Court authority clearly defining what is unreasonable in the non-capital context. Hence, when a Superior Court judge denies a non-capital habeas petition for untimeliness, it is extremely likely that the ruling will not be supported by any established California precedent, or that whatever precedent the court does cite will be from capital cases, which don’t contain clear timeliness rules applicable to non-capital cases. Therefore, if the Attorney General moves to dismiss in federal court on the basis of an untimeliness ruling by a lower California court on state habeas, argue that the ruling is, in effect, one imposing a procedural default; and that the California court’s untimeliness ruling is not “adequate” under federal law because the principles on which it is based are neither “well-established” nor “consistently applied” under California law – both of which are necessary before a state procedural default will stand up in federal court. Indeed, this same argument was successfully made in a recent Ninth Circuit decision which applied that reasoning in holding that an untimeliness ruling by a lower California court was not “adequate” to prevent a hearing on the merits on federal habeas corpus. Townsend v. Knowles, 562 F. 3d 1200 (9th Cir. 4/21/09).

Kent A. Russell specializes in habeas corpus and is the author of the California Habeas Handbook, which thoroughly explains state and federal habeas corpus under AEDPA. The 5th Edition, completely revised in September of 2006 and seasonally updated since then, can be purchased for $49.99, which includes priority mail postage. Prisoners who are paying for the book from their prison account are eligible for the special prisoner discount price of $39.99, if claimed at the time of purchase. An order form can be obtained  from Kent’s website (russellhabeas.com), or simply send a check or money order to: Kent Russell, “Cal. Habeas Handbook”, 2299 Sutter Street, San Francisco, CA  94115.

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