AEDPA provides the limitations period is tolled “during the time [in] which a properly filed application for state post-conviction or other collateral review with respect to the pertinent judgment or claim is pending.”[173]  The answers to the following questions will assist counsel in determining the final date on which the federal habeas petition is due.

 

· Question One: Have any state post-conviction actions been filed prior to the expiration of the limitations period?

 

It is important to remember that the one-year period cannot be tolled if the statute of limitations has already run; a period cannot be tolled if it has expired.  If the year has already passed, and no state post-conviction actions were filed during that period, there is no basis for statutory tolling.  Under those circumstances, the only possible hope is equitable tolling, discussed below, or an alternative starting date for the one-year period.

 

· Question Two: What types of post-conviction actions will operate to toll the limitations period?  

 

Only state post-conviction actions operate to toll the statute.  Federal habeas corpus petitions filed pursuant to 28 U.S.C. § 2254 do not toll the running of the statute.[174]

 

Moreover, only “properly filed” state post-conviction actions will toll the one-year period.  In Artuz v. Bennett, 121 S.Ct. 361, 364 (2000), the U.S. Supreme Court held that “an application is ‘properly filed’ when its delivery and acceptance are in compliance with the applicable laws and rules governing filings.”  As long as the petition comports with state filing requirements, it will operate to toll the limitations period.  Examples include “the form of the document, the time limits upon its delivery, the court and office in which it must be lodged, and the requisite filing fee.”[175]  “Properly filed” does not include substantive requirements, such as the prohibitions against successive application or untimely petitions.  In other words, the requirement that a petition be properly filed does not require that the petition be meritorious or that the petitioner be substantively entitled to relief.

 

Finally, the Ninth Circuit has held that any state action attacking the judgment in question will operate to toll the running of the statute, even if the state action did not raise any of the grounds alleged in the federal habeas corpus petition.[176]

 

· Question Three: How much time has been tolled?

 

            The entire time during which properly filed state habeas corpus petitions are pending is counted for tolling purposes.[177]  Thus, each day from the day the first state post-conviction action is filed in the superior court, until it has been rejected by the California Supreme Court, counts towards tolling.  This is true even if the petitioner occasions some delay between the date one court has denied the petition and the date the application is filed in the next state court.[178]

 

In California, any action by the Supreme Court is not considered final until 30 days after the court files the order.[179]  Habeas petitioners will therefore be entitled to an extra 30 days of statutory tolling when computing the total period during which state post-conviction actions were pending in the California courts.[180] 

 

When assessing statutory tolling, the federal court may rely upon the file stamped dates and mailing declarations for state habeas petitions.  It also may take judicial notice of such dates in the state petitions attached as exhibits to the federal habeas action.[181]

 

CAVEAT: Unlike direct appeal, there is no tolling credit for the 90 days within which a petition for writ of certiorari to the United States Supreme Court must be filed following the denial of state post-conviction relief.[182]

 

For any pro se state post-conviction actions, it should also be remembered that the date of filing is the date the prisoner delivered his or her petition to prison authorities for forwarding to the court for filing.  This “mailbox” rule applies to both state and federal actions.[183]  The date of delivery to prison officials for filing is normally presumed to be the handwritten date on the petition, unless there is evidence to the contrary.

 

Practice TIP:  As a practical consideration, it must be remembered that a properly filed petition in state court only tolls the time that remains within the one-year period.  Once the last state court has denied the petition, the petitioner must file the federal action within the time remaining within the federal statutory period.  Thus, it is advisable to file a state court petition as much in advance as possible of the end of the one-year statutory period, because once the final state court petition has been denied, there must be sufficient time remaining to file the federal action. 

 

In a California case, the U.S. Supreme Court has held that the one-year filing deadline is tolled for a reasonable period between the denial of a habeas petition on one level of the state court and the filing of the petition on the next level.[184]  Due to a dispute as to California habeas procedure, as discussed by the dissent in the Carey case, counsel should be careful to file each succeeding petition as soon as possible at each level. 

[173] 28 U.S.C. § 2244(d)(2).

[174] Duncan v Walker, 121 S.Ct. 2120, 2127 (2001).

[175] Ibid.

[176] Tillema v. Long, 253 F.3d 494 (9th Cir. 2001).

[177] See Nino v. Galaza, 183 F.3d 1003, 1005 (9th Cir. 1999).

[178] See Safford v. Newland, 224 F.3d 1087 (9th Cir. 2000).

[179] Under California Rules of Court 24(a), any action by the Supreme Court is not considered final until 30 days after filing.  See Bunney v. Mitchell, 241 F.3d 1151 (9th Cir. 2001).

[180] See Bunney v. Mitchell, 241 F.3d 1151 (9th Cir. 2001)(applying Rule 24 to habeas corpus petitions and concluding that statutory tolling was available for the additional 30 days before which the action by the California Supreme Court became final).

[181] Smith v. Duncan, 297 F.3d 809 (9th Cir. 2002).

[182] Bunney v. Mitchell, 241 F.3d 1151, 1156 (9th Cir. 2001).

[183] See Safford v. Newland, 224 F.3d 1087 (9th Cir. 2000).

[184] Carey v. Saffold, 536 U.S. 214, 122 S.Ct. 2134 (2002).

Ninth Circuit

VEHICLES " FEDERAL " HABEAS " TOLLING
Lakey v. Hickman (9th Cir. Jan. 5, 2011) ___ F.3d ___, 2011 WL 13922 (affirming dismissal of petitioner's habeas petition where (1) statutory tolling was unavailable for the 267 days at issue here because petitioner's final state habeas petition was deemed untimely under California law, and (2) even giving petitioner the benefit of equitable tolling for the time period prior to the courts decision in Pace, his subsequent 141-day delay rendered his federal petition untimely by at least 128 days).

VEHICLES " FEDERAL " HABEAS " TOLLING
Lakey v. Hickman (9th Cir. Jan. 5, 2011) ___ F.3d ___, 2011 WL 13922 (affirming dismissal of petitioner's habeas petition where (1) statutory tolling was unavailable for the 267 days at issue here because petitioner's final state habeas petition was deemed untimely under California law, and (2) even giving petitioner the benefit of equitable tolling for the time period prior to the courts decision in Pace, his subsequent 141-day delay rendered his federal petition untimely by at least 128 days).