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• 9TH CIRCUIT COURT

TONY EUGENE SAFFOLD,
No. 99-15541
Petitioner-Appellant,
D.C. No.
v.
CV-98-01040-DFL
ANTHONY NEWLAND,
OPINION
Respondent-Appellee.

Appeal from the United States District Court
for the Eastern District of California
David F. Levi, District Judge, Presiding

Argued and Submitted
February 14, 2000--San Francisco, California

Filed July 17, 2000

Before: Betty B. Fletcher, William C. Canby, Jr., and
Diarmuid F. O'Scannlain, Circuit Judges.

Opinion by Judge Canby;
Dissent by Judge O'Scannlain

_________________________________________________________________

COUNSEL

Mary Katherine McComb, Davis, California, for the
petitioner-appellant.

Stan Cross, Deputy Attorney General, Sacramento, California,
for the respondent-appellee.

_________________________________________________________________

OPINION

CANBY, Circuit Judge:

Tony Eugene Saffold is a state prisoner appealing the dis-
trict court's dismissal of his federal petition for habeas corpus.
The district court concluded that Saffold had failed to satisfy
the one-year statute of limitations for a state prisoner filing a
federal habeas petition. See 28 U.S.C. S 2244(d)(1). Whether
or not Saffold's petition is barred by the statute of limitations
turns in part on a calculation of the period during which the
federal statute was tolled while Saffold's petitions for state
habeas relief were "pending" in the California courts. See 28
U.S.C. S 2244(d)(2). After the district court issued its order,
we decided in another case how the tolling period for exhaus-
tion of state remedies is to be determined. See Nino v. Galaza,
183 F.3d 1003 (9th Cir. 1999), cert. denied, No. 99-899, 2000
WL 507534 (U.S. May 1, 2000). We now apply Nino  and
conclude that the district court erred by failing to toll the fed-
eral statute of limitations for the entire period during which
Saffold pursued state habeas relief.

We also conclude that the "mailbox" rule for pro se prison-
ers applies to Saffold's petitions to the California court and
the federal court for purposes of calculating tolling time under
AEDPA. Whether and when Saffold delivered his petitions to
prison authorities is unresolved. We therefore reverse the
judgment of the district court and remand for further proceed-
ings.

THE STATUTE OF LIMITATIONS

In 1990, Saffold was found guilty in California state court
of murder, assault with a firearm, and two counts of robbery.
He appealed, and his conviction became final on direct review
on April 20, 1992.

Effective April 24, 1996, Congress enacted the Antiterro-
rism and Effective Death Penalty Act of 1996, Pub. L. No.
104-132, 110 Stat. 1214 ("AEDPA"). AEDPA imposed, for
the first time, a one-year statute of limitations for state prison-
ers filing federal petitions for habeas corpus. For prisoners
like Saffold, whose convictions had become final before pas-
sage of AEDPA, the one-year limitations period began run-
ning on AEDPA's effective date, April 24, 1996, and expired
on April 23, 1997, unless it was tolled. See Miles v. Prunty,
187 F.3d 1104, 1105 (9th Cir. 1999).1
AEDPA's tolling provision states that "[t]he time during
which a properly filed application for State post-conviction or
other collateral review . . . is pending shall not be counted
toward any period of limitation." 28 U.S.C. S 2244(d)(2).

Saffold contends that he got in under the wire by filing his
state habeas application in the Superior Court of San Joaquin
County by delivering the petition to prison authorities on
April 17, 1997--just six days before the AEDPA one-year
limitation would have expired. The district court accepted that
contention for purposes of decision and, in order to review the
district court's ruling, we accept it as well.

The issue for our decision is how much of the time after
April 17, 1997, was tolled for purposes of AEDPA. 2 We con-
clude that Saffold had a state collateral proceeding "pending"
within the meaning of AEDPA's tolling provision, 28 U.S.C.
S 2244(d)(2), during the entire period from the time he filed
his state petition in the trial court until the California Supreme
Court denied his habeas petition.

The Superior Court denied Saffold's state habeas petition
on June 9, 1997. Five days thereafter, on June 14, 1997, Saf-
fold delivered to prison authorities his habeas petition to the
California Court of Appeal. The Court of Appeal denied that
petition on June 26, 1997. Saffold then waited four and one-
half months before filing an original habeas petition in the
California Supreme Court, on November 13, 1997. 3 The Cali-
fornia Supreme Court denied the petition "on the merits and
for lack of diligence" on May 27, 1998.

The district court ruled that the AEDPA limitation was
tolled only while each state court had the petition under con-
sideration. Thus, it excluded the gap of four days from the
Superior Court's denial of Saffold's petition to his filing of a
petition with the state Court of Appeal by delivery to prison
authorities. It also excluded the four and one-half months
between the denial by the Court of Appeal and Saffold's filing
of his petition with the California Supreme Court. 4 By this
calculation, Saffold had run over his one-year limitation by
nearly five months when he filed his federal petition.

[1] We know now that the district court erred in ruling that
time ran for AEDPA purposes during all times when a peti-
tion was not actually under consideration in a state court.
After the district court issued its order, we decided Nino v.
Galaza, 183 F.3d 1003 (9th Cir. 1999), cert. denied, No. 99-
899, 2000 WL 507534 (U.S. May 1, 2000). There we held
that:

       the AEDPA statute of limitations is tolled for "all of
       the time during which a state prisoner is attempting,
       through proper use of state court procedures, to
       exhaust state court remedies with regard to a particu-
       lar post-conviction application."

       Applying these principles to California's post-
       conviction procedure, we hold that the statute of lim-
       itations is tolled from the time the first state habeas
       petition is filed until the California Supreme Court
       rejects the petitioner's final collateral challenge.
Id. at 1006 (footnote and citation omitted) (emphasis added).
It seems clear, therefore, that time should have continued to
be tolled during the brief gap of a few days between the Supe-
rior Court's denial of Saffold's habeas petition and his filing
of a petition in the Court of Appeal. It is less clear under
Nino, however, whether limitations should be tolled during
the four and one-half months after the Court of Appeal denied
relief and before Saffold petitioned the California Supreme
Court. Section 2244(d)(2) tolls the AEDPA limitation while
a "properly filed" application for habeas is pending in state
court. 28 U.S.C. S 2244(d)(2). Nino stated, as we have empha-
sized above, that time was tolled while a petitioner was
attempting to exhaust state collateral remedies" `through
proper use of state court procedures.' " Nino, 183 F.3d at
1006. We then added a footnote to Nino, stating:

       Because it is not at issue in this case, we express no
       opinion as to whether tolling pursuant to AEDPA
       should be applied if the California state courts have
       dismissed a state habeas petition as untimely because
       the petitioner engaged in substantial delay in assert-
       ing habeas claims.

Id. at 1006 n.4.5

[2] The California Supreme Court's order denying Saffold
relief stated, in its entirety: "Petition for writ of habeas corpus
is DENIED on the merits and for lack of diligence. " The State
contends that this order raises the question that Nino left open,
but we conclude that the order does not. First and most impor-
tant, the California Supreme Court did address the merits of
Saffold's claim. The whole purpose of the tolling requirement
is to permit state courts to address the merits of the petition-
er's claim. As we observed in Nino, "[t]olling AEDPA's stat-
ute of limitations until the state has fully completed its review
reinforces comity and respect between our respective judicial
systems." Id. at 1007. We therefore decline to adopt a rule
that would require Saffold to have filed his federal petition
before the California Supreme Court ruled on the merits of his
claim.

[3] Even if we give separate consideration to the California
Supreme Court's alternative ruling that Saffold's petition was
denied "for lack of diligence," we conclude that time should
remain tolled because the dismissal for untimeliness at least
partially addressed the merits. The order wholly fails to spec-
ify, either by additional explanation or citation to authority,
whether the delay to which it refers is the four and one-half
months from the decision of the Court of Appeal to the filing
of Saffold's petition in the California Supreme Court, or the
five years from the finality of Saffold's conviction to his first
habeas petition.6 But, in either event, at the time when it
denied Saffold's petition partly for "lack of diligence," the
California Supreme Court applied its untimeliness bar only
after considering to some degree the underlying federal con-
stitutional questions raised. See La Crosse v. Kernan, No. 97-
55085, 2000 WL 432414, at *3-4 (9th Cir. Apr. 24, 2000).
Accordingly, such an untimeliness ruling did not constitute an
independent state ground of decision. See id.  at *4. We fail to
see why an untimeliness ruling entangled with the federal
constitutional merits, which is insufficient to cause a default
of a federal claim, should be sufficient to defeat tolling of the
AEDPA limitation. The untimeliness ruling involves consid-
eration of the federal constitutional claims. As we have
already stated, we are reluctant to require the filing of a fed-
eral petition before the California Supreme Court has finished
its consideration of the merits of the claims. That reluctance
continues whether the California Supreme Court is consider-
ing the merits directly, or derivatively in the course of deter-
mining whether an untimeliness bar should apply.

[4] We conclude, therefore, that the California Supreme
Court's denial of Saffold's petition on the alternative ground
of "lack of diligence" did not cause an interruption of the toll-
ing period that began on June 17, 1997. Pursuant to Nino, Saf-
fold is entitled to exclude from the calculation of the one-year
limitation the entire period from the filing of his first state
habeas petition in Superior Court until the denial of his habeas
petition by the California Supreme Court on May 27, 1998.7

THE "MAILBOX" RULE

[5] We reverse, therefore, the judgment of the district court
that failed to credit Saffold with this entire time of tolling. We
cannot direct the district court to entertain Saffold's petition,
however, because there remain other matters in dispute con-
cerning its timeliness. In Houston v. Lack, 487 U.S. 266, 276
(1988), the Supreme Court held that a notice of appeal by a
pro se prisoner is deemed filed at the moment the prisoner
delivers it to prison authorities for forwarding to the clerk of
court. We have said that the same rule would appear to apply
to habeas corpus petitions filed under AEDPA. See Miles v.
Prunty, 187 F.3d 1104, 1106 n.2 (9th Cir. 1999) (canvassing
cases of other circuits so holding). We now hold that it does,
and apply the Houston "mailbox" rule not only to the filing
of Saffold's federal petition but also, for purposes of calculat-
ing the AEDPA limitation period, to the filing of Saffold's
petition to state court that began the period of tolling. At both
times, the conditions that led to the adoption of the mailbox
rule are present; the prisoner is powerless and unable to con-
trol the time of delivery of documents to the court. See Hous-
ton v. Lack, 487 U.S. 270-72.

[6] The district court assumed, as we have, without decid-
ing, that Saffold delivered his first state petition to prison
authorities for mailing on April 17, 1997. The State disputes
that point and, because the initial petition was not stamped
"filed" in Superior Court until May 1, 1997, it will be neces-
sary for the district court to determine when Saffold's petition
was delivered to prison authorities in order to decide whether
the limitation period that expired on April 23, 1997, had
already run at that time. If Saffold delivered the petition to
prison authorities on or before April 23, 1997, it will still be
crucial to ascertain exactly when he did so, in order to deter-
mine the number of days Saffold had remaining in his one-
year limitation period. The number of days remaining may
turn out to be less than the number of days between the denial
of Saffold's habeas petition by the California Supreme Court
on May 27, 1998, and the date Saffold filed his petition in
federal court. If so, Saffold's petition would be untimely. To
determine this latter issue, the district court may have to
address Saffold's contention that he delivered his federal peti-
tion, which was filed on June 4, 1998, to prison officials on
June 2, 1998. We leave these matters to the district court on
remand.

REVERSED and REMANDED.

_________________________________________________________________

O'SCANNLAIN, Circuit Judge, dissenting:

Because I disagree with the majority's interpretation of
Nino v. Galaza, 183 F.3d 1003 (9th Cir. 1999), I must respect-
fully dissent from its application of the federal statute of limi-
tations to state habeas relief and the court's judgment that the
district court erred in denying the federal petition.

I

Even if we assume that the majority's newly announced
adoption of the "mailbox" rule is appropriate, many additional
difficulties persist in its interpretation of Nino. Saffold con-
tends, and the majority agrees, that the statute of limitations
should be deemed tolled for the entire process of state collat-
eral challenge. I cannot agree. In a case involving such dila-
tory behavior as this, the tripartite process cannot be treated
as one solid block of tolled time; rather, the clock must con-
tinue to run in the periods of excessive delay between the
three separate habeas petitions.

In Nino, this court held that "the statute of limitations is
tolled from the time the first state habeas petition is filed until
the California Supreme Court rejects the petitioner's final col-
lateral challenge." Id. at 1006. While at a superficial level,
this statement may appear to lend support to the majority's
argument that the interstitial periods between Saffold's state
petitions are irrelevant, a more careful analysis of that prece-
dent exposes the flaws in the majority's interpretation.

After setting out that general pronouncement, the court in
Nino was careful to mention that "it express[ed] no opinion as
to whether tolling pursuant to AEDPA should be applied if
the California state courts have dismissed a state habeas peti-
tion as untimely because the petitioner engaged in substantial
delay in asserting habeas claims." Id. at 1006 n.4. When Saf-
fold waited four months from the date that his petition to the
California Court of Appeal was denied until the date that he
handed his California Supreme Court petition to prison offi-
cials, he was not "properly pursuing" his appeal. Indeed, the
California Supreme Court's dismissal "for lack of diligence"
is just the sort of thing that the panel in Nino  was exempting
when it declined to toll "substantial delay[s ] in asserting
habeas claims."

Unlike the petitioner in Nino, who pursued his state claims
diligently through all three avenues of potential relief, Saffold
left a glaring gap between two of his collateral appeals. The
language of Nino expressly contemplated the possibility that
the clock could run during periods in which the petitioner was
"not properly pursuing his state post-conviction remedies."
183 F.3d at 1006 n.4. Nino exempts from its holding instances
in which "the California state courts have dismissed a state
habeas petition as untimely because the petitioner engaged in
substantial delay in asserting habeas claims." Id. Under the
California court rule governing the "strongly preferred"
method of appeal, id. at 1006 n.3, Saffold had ten days in
which to file his petition for review to the California Supreme
Court after the Court of Appeal's decision became final. Cal.
Rules of Court, rule 28(b). He waited several months; and
when he did eventually file his petition, it was dismissed "for
lack of diligence." Under any method of review, Saffold's
delay falls substantially outside the period that Nino tolls for
"properly pursu[ed]" state post-conviction remedies. 183 F.3d
1006. The majority ignores the California Supreme Court's
dismissal, stating that it should have justified its decision by
providing "additional explanation or citation to authority."
Maj. Op. at 8279. I cannot participate in the majority's
attempt to tell the California Supreme Court how to deal with
dilatory petitions. Saffold had obviously dallied months lon-
ger than the time allotted under California rules. Regrettably,
the majority presumptuously and inappropriately purports to
trump the procedural rules of the highest court of a sovereign
state. By overlooking Saffold's delay in this case, the majority
eviscerates the language in the fourth footnote of the Nino
decision. What, if not a case such as this, pray tell, would sat-
isfy the majority that a petitioner had violated Nino?

II

The magistrate judge provided specific findings and recom-
mendations on the argument that Saffold should not be held
accountable for the four-month delay because during that time
he was not made aware that the California Court of Appeal
had denied his claim. There was "no state created impedi-
ment" to prevent Saffold from having filed his petitions to the
California Supreme Court and to the United States District
Court in a timely fashion, regardless of the California Court
of Appeal's ruling. Furthermore, neither the prison nor the
California Court of Appeal did anything to prevent Saffold
from receiving notice of the decision.

There simply is no authority for the proposition that Saffold
is entitled to relief for not receiving prompt notice of the deni-
als by the various California state courts. Saffold surely could
have inquired about the status of his petition once during
those four months. He knew that he could ascertain the status
of his petition by contacting the court, as he had done so before,1
and by choosing to wait so long, he ran the risk of seeing his
one-year period evaporate.

III

Equitable tolling does not apply to Saffold because this
court has applied that doctrine "only if extraordinary circum-
stances beyond a prisoner's control make it impossible to file
a petition on time." See, e.g., Miles , 187 F.3d at 1107 (quoting
Calderon (Kelly), 163 F.3d at 541) (internal quotation marks
omitted). The Supreme Court echoed this sentiment, ruling
out equitable tolling for "what is at best a garden variety
claim of excusable neglect." Irwin v. Department of Veterans
Affairs, 498 U.S. 89, 96  (1990). Here, the magistrate judge
properly rejected petitioner's delayed notice argument, find-
ing no authority "for the proposition that a court document is
not effective until a prisoner receives notice of it."

IV

The court in Nino specifically carved out an exception to
the language upon which the majority rests its decision. That
exception clearly dictates that Saffold's dilatory petitions fall
outside the scope of properly pursued state post-conviction
appeals. The district court properly dismissed the petition. I
therefore dissent.
_______________________________________________________________

FOOTNOTES

1 We concluded that AEDPA's statute of limitations could not com-
mence running before the effective date of AEDPA, lest prisoners find
themselves to be already barred by a limitation on the date it was enacted.
See Calderon v. United States Dist. Court (Beeler) , 128 F.3d 1283, 1286-
87 (9th Cir. 1997), overruled on other grounds by Calderon v. United
States Dist. Ct. (Kelly), 163 F.3d 530 (9th Cir. 1998) (en banc), cert.
denied, 119 S. Ct. 1377 (1999).
2 We review de novo the district court's dismissal of Saffold's petition
on the ground that he has failed to satisfy the statute of limitations. Miles,
187 F.3d at 1105.
3 Saffold contends that he did not receive notice of the denial by the
Court of Appeal until November 10, 1997.
4 There are two methods by which a petitioner may seek review by the
California Supreme Court after a habeas petition is denied by the Court of
Appeal. The preferred method is by a petition for review, but the petitioner
is also free to file instead an original petition in the California Supreme
Court. See Nino, 183 F.3d at 1006 n.3. Saffold filed an original petition.
He therefore was not governed by California's Rule of Court 28(b), upon
which the dissent relies, that requires a petition for review to be filed
within ten days after the Court of Appeal's decision became final.
5 We note that the Supreme Court has granted certiorari in a case that
may address this issue left open in Nino. See Bennett v. Artuz, 199 F.3d
116 (2d Cir. 1999), cert. granted, No. 99-1238, 2000 WL 122154 (U.S.
Apr. 17, 2000).
6 We note that at the time Saffold's conviction became final, the Califor-
nia Supreme Court's standards for timeliness for filing petitions for habeas
corpus petitions were not consistently applied. See Morales v. Calderon,
85 F.3d 1387, 1390-93 (9th Cir. 1996).
7 Our conclusion that Saffold is entitled to tolling for this entire period
makes it unnecessary for us to address his argument that he is entitled to
equitable tolling because of the delay in notifying him of the decision of
the California Court of Appeal.
1 Previously, Saffold wrote to the San Joaquin County Superior Court to
determine the status of his petition even before the court had ruled on it.