FILED
NOT FOR PUBLICATION NOV 20 2009
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
CHARLES W. MARTIN, No. 08-15752
Petitioner - Appellant, D.C. No. 2:99-CV-00223-WBS-
GGH
v.
JAMES WALKER, Warden; et al., MEMORANDUM *
Respondents - Appellees.
Appeal from the United States District Court
for the Eastern District of California
William B. Shubb, District Judge, Presiding
Argued and Submitted October 6, 2009
San Francisco, California
Before: FERNANDEZ and THOMAS, Circuit Judges, and ALDRICH, ** District
Judge.
Charles W. Martin appeals the district court’s denial of his habeas petition
challenging his jury conviction of murder and robbery. Because the parties are
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Ann Aldrich, United States District Judge for the
Northern District of Ohio, sitting by designation.
familiar with the factual and procedural history of this case, we need not recount it
here.
We reverse the judgment of the district court, a decision which we review de
novo. Griffin v. Johnson, 350 F.3d 956, 960 (9th Cir. 2003) (stating standard of
review for dismissals of habeas petitions based on state procedural defaults).
This appeal follows this Court’s remand in prior appeal No. 05-15524,
which remanded for determination of the adequacy of California’s timeliness rule
set forth in In re Cark, 855 P.2d 729 (1993) and In re Robbins, 959 P.2d 311
(1998). California’s timeliness rule became independent of federal law in 1998.
Bennett v. Mueller, 322 F.3d 573, 582-83 (9th Cir. 2003). To be adequate, the state
procedural rule must be “well established and consistently applied.” Id. at 583. A
state procedural rule can be neither “well-established nor consistently applied if it
is not clear and certain.” Townsend v. Knowles, 562 F.3d 1200, 1207 (9th Cir.
2009). To constitute a procedural bar, the state’s rule had to be adequate at the
time petitioner purportedly failed to comply with it. Townsend, 562 F.3d at 1206.
Here, the adequacy of the California timeliness bar must be measured at the time
Martin filed his state habeas petition with the California Supreme Court on May
18, 2001. See Valerio v. Crawford, 306 F.3d 742, 776 (9th Cir. 2002) (“In order to
constitute adequate and independent grounds sufficient to support a finding of
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procedural default, a state rule must be clear, consistently applied, and well-
established at the time of petitioner’s purported default.”).
We held in Townsend that the government failed to prove that California
“operated under clear standards for determining what constituted ‘substantial
delay’ in 2001,” and therefore “failed to meet its burden of proving that
California’s timeliness bar was sufficiently clear and certain to be an adequate state
bar.” Townsend, 562 F.3d at 1208. We rejected the arguments based on AEDPA,
agreed that “substantial delay” has not yet been defined, and determined that
“frequent application of a vague standard in dispositions that offer no guidance,
however, does not serve to clarify that standard.” Townsend, 562 F.3d at 1208.
The State argues that it was hindered in its presentation of evidence in
Townsend, and that we should therefore ignore the decision. However, even if we
could, there is nothing in the record of this case that would cause us to alter
Townsend’s conclusion. Of the nineteen combined cases cited by the State and the
district court, only three were decided prior to 2002, the relevant date in this case.
Most of the decisions only mention Clark or Robbins in a footnote or to support an
ancillary point. The decisions that do discuss Clark or Robbins do not form a
coherent pattern of consistent application. Compare, e.g., In re Little, No.
D047468, 2008 WL 142832 (Cal. Ct. App. Jan. 16, 2008) (fourteen months not an
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unreasonable delay), with People v. Fairbanks, No. C047810, 2006 WL 950267
(Cal. Ct. App. Apr. 11, 2006) (one year delay substantial and untimely).
In sum, unlike other states, California has chosen to employ an undefined
standard of “substantial delay” in denying state habeas petitions for untimeliness,
rather than using fixed statutory deadlines. We have concluded in Townsend, and
other cases, that this standard has yet to be firmly defined and that the state has not
met its burden of proof of showing that the standard is consistently applied. After
a careful review of the record in this case, that conclusion remains unaltered.
We reverse the district court’s judgment and remand for a determination of
petitioner’s claim on the merits. Each party shall bear its own costs on appeal.
REVERSED and REMANDED.
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