FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DEL BANJO, No. 08-56512
Petitioner-Appellant,
D.C. No.
v.
2:07-cv-02142-
ROBERT L. AYERS, JR., Warden, GHK-RC
San Quentin Prison,
OPINION
Respondent-Appellee.
Appeal from the United States District Court
for the Central District of California
George H. King, District Judge, Presiding
Argued and Submitted
May 6, 2010—Pasadena, California
Filed June 17, 2010
Before: Diarmuid F. O’Scannlain and Richard C. Tallman,
Circuit Judges, and Frederic Block, District Judge.*
Opinion by Judge Tallman
*The Honorable Frederic Block, Senior United States District Judge for
the Eastern District of New York, sitting by designation.
8851
8854 BANJO v. AYERS
COUNSEL
Dennis A. Fischer (argued) and John M. Bishop, Santa Mon-
ica, California, for petitioner-appellant Del Banjo.
Edmund G. Brown Jr., Attorney General of California, Dane
R. Gillette, Chief Assistant Attorney General, Pamela C.
Hamanaka, Senior Assistant Attorney General, Xiomara Cos-
tello, Supervising Deputy Attorney General, and Daniel C.
Chang, Deputy Attorney General (argued), Los Angeles, Cali-
fornia, for respondent-appellee Robert L. Ayers, Jr., Warden,
San Quentin Prison.
OPINION
TALLMAN, Circuit Judge:
Petitioner-Appellant Del Banjo, a California prisoner,
appeals an order dismissing his federal habeas corpus petition
as untimely pursuant to 28 U.S.C. § 2244(d). The district
court determined that Banjo’s state court petition for habeas
corpus was no longer “pending” during the five-month period
between the dismissal of his original petition in the Los Ange-
les County Superior Court and the filing of a successive peti-
tion in the same court, resulting in the expiration of his time
to bring a federal habeas petition. Banjo argues that, pursuant
to California law, his successive petition was timely, because
the fact that he was seeking new evidence to support his
claims explained and justified the delay. Thus, he contends
that the federal habeas statute of limitation should toll. We
disagree, and affirm the district court.
I
On July 13, 2000, Banjo was convicted by a Los Angeles
County jury of one count of kidnapping with the intent to
BANJO v. AYERS 8855
commit rape and/or sodomy and one count of sodomy. He
was sentenced to prison for twenty-five years to life on Janu-
ary 8, 2001. He appealed to the California Court of Appeal
and California Supreme Court without success.
Banjo then began his state habeas proceedings. On Decem-
ber 30, 2003, he filed his first petition in the Los Angeles
County Superior Court, requesting relief on three grounds.
The superior court issued an order to show cause on one
claim, denying relief on the others. The court ultimately held
an evidentiary hearing on Banjo’s claim, but denied the peti-
tion on January 28, 2005, after finding Banjo’s key witness
not credible. On February 10, 2005, Banjo’s motion to recon-
sider was likewise denied.
Almost five months later, on July 6, 2005, Banjo filed a
second petition for a writ of habeas corpus in the Los Angeles
County Superior Court. In this petition, Banjo brought the
same three claims he had alleged in the first petition, but
appended declarations from five new witnesses. The declara-
tions were offered to corroborate the evidence and indepen-
dently establish the factual allegations that Banjo had raised
at the first hearing.
The court denied Banjo’s second petition on July 27, 2005,
in part because Banjo failed to exercise due diligence in locat-
ing the new witnesses. The court observed that the petition
“relie[d] upon declaration[s] by people who live in the South-
ern California area and have been available for investigation,
interview and testimony at all relevant times. These are mat-
ters that could have been and should have been presented dur-
ing the extensive proceedings on the first habeas petition.”
Banjo next filed a habeas petition in the California Court of
Appeal on September 29, 2005. On April 11, 2006, the court
denied that petition without comment. Banjo then filed his last
state habeas petition on May 18, 2006, before the California
8856 BANJO v. AYERS
Supreme Court. That petition was summarily denied on
March 21, 2007.
Banjo then moved to federal court. He filed a petition for
a writ of habeas corpus in the Central District of California on
April 2, 2007. California’s motion to dismiss the federal peti-
tion as untimely was granted. This appeal timely followed.
II
The sole issue on appeal is whether the district court erred
in determining Banjo’s petition was untimely. We review that
question de novo. Miles v. Prunty, 187 F.3d 1104, 1105 (9th
Cir. 1999). Banjo bears the burden of proving that the statute
of limitation was tolled. Smith v. Duncan, 297 F.3d 809, 814
(9th Cir. 2002), abrogated on other grounds by Pace v.
DiGuglielmo, 544 U.S. 408 (2005). We have jurisdiction pur-
suant to 28 U.S.C. §§ 1291 and 2253(c), and we affirm.
III
A
[1] The Antiterrorism and Effective Death Penalty Act of
1996 sets a one-year statute of limitation on habeas corpus
petitions filed by state prisoners. 28 U.S.C. § 2244(d); Evans
v. Chavis, 546 U.S. 189, 191 (2006); Waldrip v. Hall, 548
F.3d 729, 734 (9th Cir. 2008). The one-year period begins to
run when the state prisoner’s conviction becomes final.1 28
U.S.C. § 2244(d)(1)(A). This one-year limitation period tolls,
however, while the prisoner’s “properly filed application for
State post-conviction or other collateral review with respect to
the pertinent judgment or claim is pending.” 28 U.S.C.
§ 2244(d)(2).
1
While there are other triggers for starting the running of the statute of
limitation, 28 U.S.C. § 2244(d)(1)(B)-(D), none is relevant here.
BANJO v. AYERS 8857
[2] Post-conviction review is “pending,” and thus the stat-
ute of limitation tolls, while a prisoner is pursuing a full round
of habeas relief in the state court. Carey v. Saffold, 536 U.S.
214, 219-21 (2002); Delhomme v. Ramirez, 340 F.3d 817,
819-20 (9th Cir. 2003), abrogated on other grounds by
Chavis, 546 U.S. 189. The period in which a habeas petition
is pending includes the time between a lower court’s adverse
ruling and the prisoner’s filing of a notice of appeal, so long
as the filing comports with state law timeliness requirements.
Chavis, 546 U.S. at 191. An untimely petition, however, is not
“properly filed” pursuant to 28 U.S.C. § 2244(d)(2), and so it
does not toll the statute of limitation. Pace, 544 U.S. at 410;
Thorson v. Palmer, 479 F.3d 643, 645 (9th Cir. 2007).
[3] Under California’s unusual system of independent col-
lateral review, a prisoner seeks review of a lower court’s
denial of relief by filing an original petition for habeas corpus
in the reviewing court. Chavis, 546 U.S. at 192-93; Waldrip,
548 F.3d at 734. The period between a California lower
court’s denial of review and the filing of an original petition
in a higher court is tolled—because it is part of a single round
of habeas relief—so long as the filing is timely under Califor-
nia law. Chavis, 546 U.S. at 191-93; Waldrip, 548 F.3d at
734.
[4] A California petition is timely filed if it is filed within
a “reasonable time.” Chavis, 546 U.S. at 192-93; Waldrip,
548 F.3d at 734. California has not provided guidance as to
what constitutes a “reasonable time.” Chavis, 546 U.S. at 198;
Waldrip, 548 F.3d at 734. In the absence of clear direction
from the California courts, either in a particular case or in
general, we must determine whether the petition at issue was
filed within a “reasonable time.” Chavis, 546 U.S. at 198. We
cannot infer from a decision on the merits, or a decision with-
out explanation, that the California court concluded that the
petition was timely. Id. at 194 (citing Saffold, 536 U.S. at
225-26). A California court’s determination that a filing was
untimely, however, is dispositive. Saffold, 536 U.S. at 226
8858 BANJO v. AYERS
(“If the California Supreme Court had clearly ruled that Saf-
fold’s 4½-month delay was ‘unreasonable,’ that would be the
end of the matter . . . .”).
[5] Only the time period during which a round of habeas
review is pending tolls the statute of limitation; periods
between different rounds of collateral attack are not tolled.
Biggs v. Duncan, 339 F.3d 1045, 1048 (9th Cir. 2003). We
employ a two-part test to determine whether the period
between the denial of one petition and the filing of a second
petition should be tolled. Hemmerle v. Schriro, 495 F.3d
1069, 1075 (9th Cir. 2007); King v. Roe, 340 F.3d 821, 823
(9th Cir. 2003), abrogated on other grounds by Chavis, 546
U.S. 189. “First, we ask whether the petitioner’s subsequent
petitions are limited to an elaboration of the facts relating to
the claims in the first petition.” King, 340 F.3d at 823. If the
petitions are not related, then the subsequent petition consti-
tutes a new round of collateral attack, and the time between
them is not tolled. Hemmerle, 495 F.3d at 1075; King, 340
F.3d at 823. If the successive petition was attempting to cor-
rect deficiencies of a prior petition, however, then the prisoner
is still making “proper use of state court procedures,” and
habeas review is still pending. King, 340 F.3d at 823 (quoting
Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999)); Hem-
merle, 495 F.3d at 1075. Second, if the successive petition
was not timely filed, the period between the petitions is not
tolled. Hemmerle, 495 F.3d at 1075; King, 340 F.3d at 823.
B
[6] Banjo’s conviction was affirmed by the California
Court of Appeal, and the California Supreme Court denied
review on October 16, 2002. Because Banjo did not petition
for certiorari, his conviction became final ninety days later, on
January 14, 2003. Sup. Ct. R. 13; Brambles v. Duncan, 412
F.3d 1066, 1069 (9th Cir. 2005) (citing Bowen v. Roe, 188
F.3d 1157, 1158-59 (9th Cir. 1999)). Banjo did not file a fed-
eral petition for a writ of habeas corpus pursuant to 28 U.S.C.
BANJO v. AYERS 8859
§ 2254 until April 2, 2007, more than four years later.
Accordingly, absent statutory tolling under 28 U.S.C.
§ 2244(d)(2), Banjo’s petition was untimely.
On December 30, 2003, Banjo filed his first petition for a
writ of habeas corpus in Los Angeles County Superior Court.
At that point, he had used 350 days of his one-year federal
time limit to file a petition in district court. That petition was
denied on January 28, 2005, after the superior court found
Banjo’s witness in support of his claim not credible. Banjo
filed a motion for reconsideration on February 4, 2005, which
was denied six days later on February 10. One hundred forty-
six days later, on July 6, 2005, Banjo filed a successive peti-
tion in the superior court, raising the same claims as his first
petition, but attaching what he claimed was newly discovered
evidence. The superior court denied the petition on July 27,
2005. Sixty-four days later, on September 29, 2005, Banjo
filed an original habeas corpus petition in the California Court
of Appeal, again alleging the same claims; it was denied on
April 11, 2006. On May 18, 2006, Banjo filed another original
habeas corpus petition, again alleging the same claims, this
time in the California Supreme Court, which denied relief on
March 21, 2007.
As the district court concluded, “[i]t is clear that the statute
of limitations was tolled from the filing of the First Superior
Court Petition until the motion for reconsideration was denied
on February 10, 2005.” California does not argue otherwise.2
The first question we must address, then, is whether Banjo’s
successive petition in the superior court meets the require-
ments of King, such that the interval between the denial of
Banjo’s first petition and the filing of his second in the Los
Angeles County Superior Court is tolled.
2
California does quibble that the time between the denial of Banjo’s
first petition and the filing of his motion for reconsideration should not be
tolled. In light of our holding that Banjo’s 146-day delay was not reason-
able, and that Banjo’s time for filing a federal petition would have elapsed
during this period, we do not address the earlier seven-day delay.
8860 BANJO v. AYERS
The parties dispute both whether Banjo’s successive peti-
tion started a “new round” and whether the successive petition
is timely. Because we conclude that Banjo’s petition is not
timely under the second prong of King, we need not deter-
mine whether the petition was a continuation of the first or the
start of a second round.
The second part of the King analysis examines whether a
successive petition was timely filed under state law. As dis-
cussed above, the standard for whether a petition was timely
filed under California law is whether the petition was filed
within a reasonable time.
Here, the superior court did not make a determination that
Banjo’s second petition was untimely. Rather, the court—
treating the second petition as a motion for a new trial—found
that the new evidence could with reasonable diligence have
been discovered earlier, and thus denied relief. California law
provides that a new trial may be granted on the basis of new
evidence, unless that evidence could have been found prior to
trial in the exercise of reasonable diligence. Cal. Penal Code
§ 1181(8); People v. Martinez, 685 P.2d 1203, 1205 (Cal.
1984). Thus, while the superior court rejected the petition, it
did not explicitly reject it as untimely filed. See Artuz v. Ben-
nett, 531 U.S. 4, 10-11 (2000) (distinguishing between timeli-
ness, which is a condition to filing, and procedural bars,
which are conditions to relief); but cf. Saffold v. Newland, 250
F.3d 1262, 1266-67 (9th Cir. 2000) (assuming that a Califor-
nia habeas petition denied “for lack of diligence” was a dis-
missal for untimeliness), overruled on other grounds by
Saffold, 536 U.S. 214.
[7] The state court’s failure to explicitly decide whether a
petition was untimely filed does not end our analysis. Chavis,
546 U.S. at 194, 197; Saffold, 536 U.S. at 225-26. We must
instead engage in an inquiry as to whether California courts
would have deemed the petition filed within a reasonable
BANJO v. AYERS 8861
time. Chavis, 546 U.S. at 198. Here, they plainly would not
have.
[8] The Supreme Court has previously opined that Califor-
nia courts would not consider an unjustified and unexplained
six-month delay “reasonable.” Id. at 201. Further, the Court
has permitted interval tolling under California’s unusual sys-
tem of habeas petitions and imprecise time limits on the
assumption “that California’s ‘reasonable time’ standard
would not lead to filing delays substantially longer than those
in States with determinate timeliness rules.” Id. at 199-200
(citing Saffold, 536 U.S. at 222-23). Chavis presumed a 30-
or 60-day delay would be the norm in most states, 546 U.S.
at 193, 201; Saffold only 30 to 45 days, 536 U.S. at 222.
Banjo waited 146 days. We cannot conclude that such a delay
is reasonable, nor is it consistent with the short periods of
time permitted by most states and envisioned by the Supreme
Court in reaching its decisions in Saffold and Chavis.
[9] Banjo counters that the California Supreme Court has
held that a successive habeas petition will be considered on
the merits if the prisoner explains and justifies the failure to
present the claims in a timely manner as part of a prior peti-
tion. In re Clark, 855 P.2d 729, 745 (Cal. 1993). He contends
that he met this standard, because he was continuing to
develop evidence that would support a claim that was initially
rejected for lack of evidence. But California law requires that,
in “assessing a petitioner’s explanation and justification for
delayed presentations of claims,” a court “consider whether
the facts on which the claim is based, although only recently
discovered, could and should have been discovered earlier. A
petitioner will be expected to demonstrate due diligence in
pursuing potential claims.” Id. at 745.
[10] In rejecting Banjo’s second habeas petition, the supe-
rior court found that Banjo’s newly discovered evidence
“could have been and should have been discovered and pro-
duced” earlier; indeed, it cites the same general section of In
8862 BANJO v. AYERS
re Clark. If the evidence sought during the nearly five-month
delay between the denial of the first petition and the filing of
the second was evidence that should have been discovered
earlier in the exercise of due diligence, the delay cannot be
deemed justifiable. A California court would not have found
this delay reasonable.
[11] We hold that Banjo’s filing of his successive petition
was not timely.
C
[12] Banjo alternatively argues that the period between the
denial of his first petition and his filing of an original petition
in the California Court of Appeal, as contemplated under state
law, was not an unreasonable delay. The first superior court
petition was denied on February 10, 2005, and the petition to
the Court of Appeal was filed more than seven months later,
on September 29, 2005. If the delay between the filing of the
first and second superior court petitions was not reasonable,
this even longer period cannot be either. We hold that the
petition to the California Court of Appeal was not timely
filed.
IV
[13] At the time the first habeas petition was denied by the
superior court, Banjo had only fifteen days remaining of his
one-year time limit to file a federal habeas petition. Because
he did not timely file either the second petition with the supe-
rior court or the petition in the Court of Appeal, his petition
was not “pending,” and he is not entitled to interval tolling.
The statute of limitation thus ran on February 25, 2005, well
before Banjo filed his federal petition. The district court did
not err in dismissing the petition as untimely.
AFFIRMED.