FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RONALD VELASQUEZ, No. 08-55823
Petitioner-Appellant, D.C. No.
v. 2:07-cv-01813-
RICHARD KIRKLAND, Warden, ODW-MAN
Respondent-Appellee.
OPINION
Appeal from the United States District Court
for the Central District of California
Otis D. Wright, District Judge, Presiding
Argued and Submitted
January 10, 2011—Pasadena, California
Filed May 10, 2011
Before: Diarmuid F. O’Scannlain, William A. Fletcher, and
Richard R. Clifton, Circuit Judges.
Opinion by Judge O’Scannlain
6223
6226 VELASQUEZ v. KIRKLAND
COUNSEL
Marilee Marshall, Marilee Marshall & Associates, Inc., Los
Angeles, California, argued the cause for the appellants and
filed briefs.
Susan S. Kim, Deputy Attorney General, Los Angeles, Cali-
fornia, argued the cause for the appellee and filed a brief.
With her on the brief were Edmund G. Brown, Jr., Attorney
General of California, Dane R. Gillette, Chief Assistant Attor-
ney General, Pamela C. Hamanaka, Senior Assistant Attorney
General, and Jason C. Tran, Deputy Attorney General, Los
Angeles, California.
OPINION
O’SCANNLAIN, Circuit Judge:
We must decide whether the one-year statute of limitations
for filing a federal habeas corpus petition is tolled during a
California state prisoner’s delays between his state-court peti-
tions for collateral review.
I
A
In 2001, Ronald Velasquez was convicted of first-degree
murder by a jury in California state court for the killing of
Michael Roybal and was sentenced to a term of sixty years to
life in prison. Following his conviction, Velasquez appealed
to the California Court of Appeal, claiming that the trial court
committed a number of errors and that his trial counsel was
ineffective. The Court of Appeal affirmed Velasquez’s con-
viction, and the California Supreme Court denied his petition
for review on November 12, 2003. Because Velasquez did not
VELASQUEZ v. KIRKLAND 6227
seek to file a petition for a writ of certiorari in the United
States Supreme Court, his conviction became final ninety
days later, on February 10, 2004. See Sup. Ct. R. 13.1; Wixom
v. Washington, 264 F.3d 894, 897 (9th Cir. 2001).
On February 4, 2005, nearly one year after his conviction
became final, Velasquez filed a petition for writ of habeas
corpus in California superior court, alleging various violations
of his constitutional rights. The court denied Velasquez’s peti-
tion, and he responded by filing a request for reconsideration
along with several supplemental exhibits in support. On April
26, 2005, the superior court issued an order denying Velas-
quez’s request and indicating that his petition “remain[ed]
denied.”
Ninety-two days later, on July 27, 2005, Velasquez filed a
habeas petition in the California Court of Appeal.1 On Sep-
tember 19, 2005, the court of appeal denied the petition, stat-
ing simply, “Petition for Writ of Habeas Corpus is DENIED.”
Eighty-one days later, on December 9, 2005, Velasquez filed
a habeas petition in the California Supreme Court. The court
ordered an informal response on the merits of Velasquez’s
petition from the State, pursuant to what was then Rule 60 of
the California Rules of Court.2 After the response and Velas-
quez’s reply were filed, the court denied Velasquez’s petition,
stating simply, “Petition for writ of habeas corpus is
DENIED.” At all times, Velasquez was represented by coun-
sel.
1
Under California’s original writ system, a prisoner seeking review of
a lower court’s denial of a habeas petition must file another habeas peti-
tion, rather than a notice of appeal, in the relevant appellate court. See
Carey v. Saffold, 536 U.S. 214, 221-22 (2002).
2
Now numbered Rule 8.385(b)(1), this rule provides that “[b]efore rul-
ing on the [habeas] petition, the court may request an informal written
response from the respondent, the real party in interest, or an interested
person.”
6228 VELASQUEZ v. KIRKLAND
B
On March 19, 2007, five days after the California Supreme
Court denied his final state habeas petition—and more than
three years after his conviction for first-degree murder
became final—Velasquez filed a habeas petition in the United
States District Court for the Central District of California.
The matter was referred to a magistrate judge, and the gov-
ernment moved to dismiss Velasquez’s petition as untimely
under the one-year statute of limitations provided by the
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”). See 28 U.S.C. § 2244(d)(1). Velasquez argued
that under AEDPA, the statute of limitations should be tolled
for the periods during which his counsel prepared to file his
various habeas petitions in California state court. The magis-
trate filed a Report and Recommendation rejecting Velas-
quez’s argument and recommending that the motion to
dismiss be granted. Velasquez objected to the Report and
Recommendation, arguing that he should receive both statu-
tory tolling under AEDPA as well as equitable tolling. After
stating that it “ha[d] conducted a de novo review of those mat-
ters to which objections ha[d] been stated” the district court
concluded that no evidentiary hearing was needed and
adopted the magistrate’s recommendation in full. The court
entered judgment dismissing Velasquez’s petition with preju-
dice, from which Velasquez timely appeals.3
3
Velasquez requested a certificate of appealability (“COA”) in the dis-
trict court, arguing that he is entitled to both statutory and equitable tolling
under AEDPA. The district court denied Velasquez’s request, but thereaf-
ter, we granted Velasquez a COA on the issue of “whether the district
court properly dismissed appellant’s 28 U.S.C. § 2254 petition as
untimely, including whether appellant is entitled to statutory ‘gap’ toll-
ing.” To the extent that the COA does not encompass Velasquez’s equita-
ble tolling argument, we construe his opening brief as a motion to broaden
the COA and grant it.
VELASQUEZ v. KIRKLAND 6229
II
The only issue on appeal is whether the district court erred
in determining that Velasquez’s federal habeas petition is
untimely. AEDPA requires a state prisoner to seek federal
habeas corpus relief within one year after the date on which
his conviction becomes final. 28 U.S.C. § 2244(d)(1)(A).
Velasquez’s conviction became final on February 10, 2004,
and thus AEDPA’s limitations period expired on February 10,
2005, absent any tolling. Velasquez filed his federal habeas
petition 767 days overdue, on March 19, 2007. Accordingly,
his petition is untimely unless the one-year limitations period
was tolled for at least 767 days. Velasquez argues that he is
entitled to both statutory and equitable tolling.
A
[1] We first consider whether Velasquez is entitled to stat-
utory tolling. Under AEDPA, the one-year limitations period
is tolled for “[t]he time during which a properly filed applica-
tion for State post-conviction or other collateral review . . . is
pending.” 28 U.S.C. § 2244(d)(2). “The time that an applica-
tion for state post-conviction review is ‘pending’ includes the
period between (1) a lower court’s adverse determination, and
(2) the prisoner’s filing of a notice of appeal, provided that
the filing of the notice of appeal is timely under state law.”4
Evans v. Chavis, 546 U.S. 189, 191 (2006). Thus, AEDPA’s
one-year limitations period is tolled both for the days during
which California’s courts actually considered Velasquez’s
habeas petitions as well as for the time between such peti-
tions, provided that the petitions were timely filed. Because
neither the California Court of Appeal nor the California
Supreme Court gave a “clear indication” whether it deemed
4
The Supreme Court has held that California’s original-writ system, see
supra note 1, functions the same as the more typical notice-of-appeal sys-
tem for purposes of statutory tolling under AEDPA. See Saffold, 536 U.S.
at 221-22.
6230 VELASQUEZ v. KIRKLAND
Velasquez’s requests for appellate review to be timely, we
“must [ourselves] examine the delay in each case and deter-
mine . . . whether the filing of the request for state-court
appellate review” would be considered timely under Califor-
nia law.5 Evans, 546 U.S. at 198.
California courts have given scant guidance as to what the
State considers a “reasonable” length of time to file an appli-
cation for review, but the issue is relatively familiar to the
Supreme Court and to us. In Carey v. Saffold, the Supreme
Court explained that, despite its indeterminacy, California’s
system is materially similar to the systems of other states with
concrete deadlines. See 536 U.S. at 222-23. Until California’s
courts or legislature indicate otherwise, we must interpret Cal-
ifornia’s reasonableness standard in a way that does “not lead
to filing delays substantially longer than those in States with
determinate timeliness rules.” Evans, 546 U.S. at 200. Specif-
ically, we compare Velasquez’s delays to the “ ‘short peri-
od[s] of time,’ 30 to 60 days, that most States provide for
filing an appeal.” Id. at 201 (alteration in original) (quoting
Saffold, 536 U.S. at 219).
[2] Under the Supreme Court’s guidance, we have declined
to toll AEDPA’s statute of limitations for California prisoners
5
Each court denied Velasquez’s petition by stating simply, “Petition for
Writ of Habeas Corpus is DENIED.” Velasquez argues that these courts
implicitly found his petitions to be timely, because they did not expressly
deny such petitions as untimely. In support, he adds that the California
Supreme Court took the extra step of requesting briefing on the merits of
his petition. But because a “court will sometimes address the merits of a
claim that it believes was presented in an untimely way,” Saffold, 536 U.S.
at 225, even “the appearance of the words ‘on the merits’ does not auto-
matically warrant a holding that the filing was timely,” Evans, 546 U.S.
at 197. “[T]he fact that the California Supreme Court did not include the
words ‘on the merits’ in its order denying [Velasquez] relief makes it less
likely . . . that the California Supreme Court believed that [Velasquez’s]
delay was reasonable.” Id. At bottom, the summary denials by California’s
appellate courts shed little light on whether such courts found Velasquez’s
petitions timely.
VELASQUEZ v. KIRKLAND 6231
with delays similar to those in this case. For instance, we have
held that unexplained gaps as short as 115 and 101 days
between habeas petitions are “unreasonable” under California
law. Chaffer v. Prosper, 592 F.3d 1046, 1048 (9th Cir. 2010)
(per curiam); see also Banjo v. Ayers, 614 F.3d 964, 970 (9th
Cir. 2010) (holding that an unexplained gap of 146 days was
unreasonable). District courts within our Circuit have found
even shorter gaps of time to be unreasonable. See, e.g., Ben-
nett v. Felker, 635 F. Supp. 2d 1122, 1126-27 (C.D. Cal.
2009) (ninety-three days); Culver v. Dir. of Corr., 450 F.
Supp. 2d 1135, 1140 (C.D. Cal. 2006) (ninety-seven days).
[3] Here, each of the gaps between Velasquez’s state
habeas petitions is far longer than the Supreme Court’s thirty-
to-sixty-day benchmark for California’s “reasonable time”
requirement. First, ninety-one days passed between the denial
of Velasquez’s first petition and the date that he filed his sec-
ond petition in the court of appeal. Such gap is a full month
longer than the upper end of the Supreme Court’s benchmark.
Moreover, this gap is only ten days shorter than the 101-day
gap we held unreasonable in Chaffer. Similarly, Velasquez
filed his petition in the California Supreme Court eighty-one
days after his petition in the court of appeal was denied. Once
again, this is nearly a full month beyond the deadline in most
states.
Without an adequate explanation for these lengthy delays,
and without an indication from the California courts that the
petitions are timely in state court, we conclude that they are
untimely under California law. See Chaffer, 592 F.3d at 1048.
But Velasquez offers little to justify his tardiness. Unlike
many habeas petitioners, Velasquez was represented by coun-
sel at all stages; he cannot rely on legal inexperience to
excuse the delays. Moreover, each of Velasquez’s habeas
petitions is nearly identical to the petition that came before it.
It is not reasonable that Velasquez’s counsel would need
excess time essentially to re-file an already-written brief. See
Waldrip v. Hall, 548 F.3d 729, 737 (9th Cir. 2008).
6232 VELASQUEZ v. KIRKLAND
Velasquez offers only the relatively weak explanation that
his counsel delayed filing the petitions as she searched for
Dalila Mejia, a witness who had entered a witness protection
program.6 First, it is unclear from the record how diligently
his counsel worked to find Mejia. Second, even assuming that
counsel was diligent, Mejia’s testimony does not appear to be
nearly as crucial to Velasquez’s petition as he claims. Mejia’s
statement does not provide a new basis for granting habeas
relief, but at most gives some evidence to question the verac-
ity of a single witness at Velasquez’s trial. Finally, and most
importantly, it is not clear how the search for Mejia could jus-
tify Velasquez’s late filings, considering that each time he
finally got around to filing his petition, he had not yet been
able to locate Mejia. In other words, ultimately Mejia’s
absence never prevented him from filing a petition, and it is
thus unclear why such absence necessitated any delay beyond
the thirty-to-sixty-day range.7
[4] With no adequate justification for the eighty- and
ninety-one day filing delays, and with no indication from the
California courts to the contrary, we are left with the conclu-
sion that such delays are “unreasonable” in California. Velas-
quez’s state petitions were therefore untimely, and he is not
entitled to statutory tolling of AEDPA’s one-year statute of
limitations.
B
6
According to Velasquez, his counsel worked for over a year to get in
contact with Mejia, who was present the night of the shooting. In a short
declaration obtained by Velasquez’s counsel, Mejia states that Roberta
Benavides, who testified at trial that she saw Velasquez perform the shoot-
ing, had earlier told Mejia that she did not know who the shooter was.
Velasquez argues that this declaration corroborates his claim that he was
convicted based upon false testimony.
7
Once Mejia was finally located, Velasquez filed a supplemental exhibit
to his already-filed California Supreme Court petition. This suggests that
there was indeed a reasonable way of handling Mejia’s absence while still
filing the petitions in a timely manner.
VELASQUEZ v. KIRKLAND 6233
[5] We next consider whether the one-year limitations
period should be tolled for equitable reasons. “[A] petitioner
is entitled to equitable tolling only if he shows (1) that he has
been pursuing his rights diligently, and (2) that some extraor-
dinary circumstance stood in his way and prevented timely
filing.” Holland v. Florida, 130 S. Ct. 2549, 2562 (2010)
(internal quotation marks omitted). Velasquez must show that
some “external force” caused his untimeliness, rather than
mere “oversight, miscalculation or negligence.” Waldron-
Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir. 2009)
(internal quotation marks omitted). In other words, Velasquez
must have been delayed by circumstances “beyond [his] direct
control,” and not by his or his counsel’s “own mistake.” Har-
ris v. Carter, 515 F.3d 1051, 1055 (9th Cir. 2008).
Velasquez argues that before Evans v. Chavis—which was
decided after he filed his state petitions—he could not have
been expected to rush through California’s courts. Specifi-
cally, Velasquez claims that, before Evans, he could not have
known that a state habeas petition denied “on the merits”
could be considered untimely for purposes of statutory tolling
under AEDPA. According to Velasquez, he had no warning
that “the federal court would make its own determination as
to whether his petition was timely,” and his delays were there-
fore justified, because the California courts never expressly
found his petitions to be late.
[6] Velasquez’s argument fails for several reasons. First,
Evans did not establish federal courts’ independent authority
to determine the timeliness of state habeas petitions. In
Saffold—which was decided before Velasquez filed his state
petitions—the Supreme Court noted that a state “court will
sometimes address the merits of a claim that it believes was
presented in an untimely way,” and therefore rejected the
notion that a state disposition “on the merits” precludes fed-
eral courts from considering timeliness independently. Saf-
fold, 536 U.S. at 225. Saffold thus provided adequate notice
that federal courts would address the timeliness of Velas-
6234 VELASQUEZ v. KIRKLAND
quez’s petition in the event that the California courts
neglected to do so.
Second, Velasquez’s supposed reliance on the law regard-
ing federal courts’ authority to find his state petitions
untimely is illogical. Velasquez readily admits that he “knew
that if the state court found his petition[s] untimely he would
not be entitled to statutory tolling” under AEDPA. But the
state court would necessarily make such a determination after
Velasquez prepared and filed his petitions. In other words, he
could not have possibly known (and relied upon) whether the
California courts would dismiss his petitions as untimely or
on the merits at the time when he delayed filing the petitions
themselves.
[7] Finally, Velasquez’s—or more accurately his
attorney’s—failure to recognize that California’s reasonable-
ness standard would render an eighty- or ninety-one-day delay
untimely is not the result of an “external force” that made his
timeliness impossible, but instead is the result of his own
actions. Altogether, Velasquez has not demonstrated “extraor-
dinary circumstances” that warrant tolling of AEDPA’s one-
year deadline. The district court did not err in denying Velas-
quez’s request for equitable tolling.
III
The district court’s dismissal of Velasquez’s federal habeas
petition as untimely is
AFFIRMED.