FILED
NOT FOR PUBLICATION JUL 25 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JUAN FLORES, JR., No. 10-55788
Petitioner - Appellant, D.C. No. 8:09-CV-01447-DMG-
JEM
v.
MATTHEW L. CATE, Secretary of the MEMORANDUM*
California Department of Corrections and
Rehabilitation,
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
Dolly M. Gee, District Judge, Presiding
Argued and Submitted July 10, 2013
Pasadena, California
Before: GRABER, RAWLINSON, and WATFORD, Circuit Judges.
Petitioner appeals the district court’s dismissal, as untimely, of his petition
for a writ of habeas corpus under 28 U.S.C. § 2254. Reviewing de novo, Noble v.
Adams, 676 F.3d 1180, 1181 (9th Cir. 2012), we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Petitioner’s underlying conviction became final on June 10, 2008, ninety
days after the California Supreme Court denied review. Without tolling, the one-
year limitation period provided by 28 U.S.C. § 2244(d)(1) would have expired on
June 10, 2009. Petitioner filed his federal habeas petition on December 3, 2009.
1. The statutory toll provided by 28 U.S.C. § 2244(d)(2) applies only if the
petitioner "properly filed" an application for collateral review in state court. A
state habeas petition is not "properly filed" for these purposes if the state court
ruled that the petition was untimely as a matter of state law. Pace v. DiGuglielmo,
544 U.S. 408, 417 (2005).
Here, the California Superior Court held that Petitioner’s state habeas
petition was untimely. The California Court of Appeal denied his petition without
explanation or citation. The California Supreme Court denied the petition for
review without explanation but with several citations, including one to In re Swain,
209 P.2d 793, 796 (Cal. 1949).
A citation to Swain may indicate that a state habeas petition is untimely
under California law. Chaffer v. Prosper, 592 F.3d 1046, 1048 (9th Cir. 2010) (per
curiam); La Crosse v. Kernan, 244 F.3d 702, 704 & n.10 (9th Cir. 2001). We have
held that "a citation to Swain by itself [is not] conclusive proof of untimeliness"
and that a "citation to Swain by itself [does not] mean that a habeas application was
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untimely filed." Cross v. Sisto, 676 F.3d 1172, 1178 (9th Cir. 2012). But,
although a citation to Swain does not conclusively prove untimeliness, neither does
it conclusively prove a different ground of decision. Here, the California Supreme
Court’s citation to Swain does not stand "by itself." To the contrary, it must be
viewed in light of the Superior Court’s reasoned determination that the petition
was untimely as a matter of state law. Petitioner has not shown that the California
Supreme Court’s decision rested on a different ground.
Neither Cross nor Trigueros v. Adams, 658 F.3d 983, 990 (9th Cir. 2011),
requires a different result. In Cross, the California Superior Court had denied the
petition for failure to state a prima facie case for relief, and the California Supreme
Court had denied the petition without comment but with a citation to Swain.
Cross, 676 F.3d at 1174–75. We held that, in that context, the California Supreme
Court’s citation to Swain reflected the grant of a demurrer instead of a decision
respecting timeliness. Id. at 1178. In Trigueros, the Superior Court had denied the
petition as untimely and on the merits. The California Supreme Court had denied
it without explanation or citation. Trigueros, 658 F.3d at 986. Because the
California Supreme Court had requested informal briefing on the merits despite the
Superior Court’s finding of untimeliness, we held that its denial had impliedly
3
overruled the lower court’s timeliness decision and had decided the petition on the
merits. Id. at 990–91.
Here, by contrast, the Superior Court found the petition untimely, and the
proceedings before the California Supreme Court were consistent with that ground
for denial. Under these circumstances, the § 2244(d)(2) statutory toll does not
apply. Bonner v. Carey, 425 F.3d 1145, 1147 (9th Cir. 2005).
2. We need not, and do not, decide whether equitable tolling applied
between June 10, 2008, and July 16, 2008, when Petitioner received his case file.
Even if it did apply, that 36-day toll would not render the petition timely because
Petitioner filed his petition after July 16, 2009.
AFFIRMED.
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FILED
Flores v. Cate, No. 10-55788 JUL 25 2013
MOLLY C. DWYER, CLERK
WATFORD, Circuit Judge, dissenting: U.S. COURT OF APPEALS
I disagree with the majority that the California Supreme Court’s citation to
Swain indicates that it considered Flores’s state habeas petitions untimely. A
Swain citation does not generally indicate untimeliness. See Cross v. Sisto, 676
F.3d 1172, 1178 (9th Cir. 2012). California courts instead “cit[e] the controlling
decisions, i.e., Clark and Robbins” to signal untimeliness. Walker v. Martin, 131
S. Ct. 1120, 1124 (2011). When California courts cite Swain and Duvall together,
as the California Supreme Court did here, that suggests a different procedural bar
applies: failure to allege facts with sufficient particularity. See Stancle v. Clay, 692
F.3d 948, 958 (9th Cir. 2012); Cross, 676 F.3d at 1176–77; Gaston v. Palmer, 417
F.3d 1030, 1038–39 (9th Cir. 2005), as amended by order, 447 F.3d 1165 (9th Cir.
2006).
Our decision in Trigueros v. Adams, 658 F.3d 983 (9th Cir. 2011), controls
the outcome of this case. There, we inferred that the California Supreme Court had
overruled a lower court’s untimeliness finding based on a request for informal
briefing on the merits and a subsequent summary denial without citations. Id. at
990. Here, the same inference is at least as strong. The superior court dismissed
Flores’s petition on the basis of untimeliness (citing Clark) as well as two other
procedural bars. The California Supreme Court did not simply deny Flores’s
petition without citations, which would have required us to infer that the petition
was denied on the same grounds relied on by the superior court. See Bonner v.
Carey, 425 F.3d 1145, 1148 & n.13 (9th Cir. 2005), as amended by order, 439
F.3d 993 (9th Cir. 2006). Instead, the California Supreme Court went out of its
way, through the use of citations, to adopt the two procedural bars cited by the
superior court that did not involve untimeliness, added a third procedural bar of its
own, and then conspicuously omitted any citation to Clark or Robbins. Under
these circumstances, I would infer that the California Supreme Court impliedly
overruled the superior court’s untimeliness finding.
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