Gaston v. Palmer

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

ANTHONY (TONY) GASTON,  No. 01-56367
Petitioner-Appellant, D.C. No.
v.  CV-00-06612-
ANNA RAMIREZ PALMER, NM(Mc)
Respondent-Appellee.
 OPINION

Appeal from the United States District Court
for the Central District of California
Nora M. Manella, District Judge, Presiding

Submitted September 10, 2003*
Pasadena, California

Withdrawn from Submission September 22, 2003
Resubmitted October 7, 2004
Filed August 2, 2005

Before: Andrew J. Kleinfeld, Kim McLane Wardlaw, and
William A. Fletcher, Circuit Judges.

Opinion by Judge William A. Fletcher;
Dissent by Judge Kleinfeld

*The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a).

8969
 GASTON v. PALMER 8973

COUNSEL

Gerson Simon, Los Angeles, Calfornia, for the petitioner-
appellant.

Anthony (Tony) Gaston, California Medical Facility, Vaca-
ville, California, for the petitioner-appellant.
8974 GASTON v. PALMER
Kyle Brodie, Michelle J. Pirozzi, AGCA - Office of the Cali-
fornia Attorney General, Los Angeles, California, for the
respondent-appellee.

OPINION

W. FLETCHER, Circuit Judge:

Anthony Gaston, a California prisoner, seeks review of the
district court’s dismissal of his petition for a writ of habeas
corpus under 28 U.S.C. § 2254. The district court held that
Gaston’s petition was time-barred under the one-year statute
of limitations of the Antiterrorism and Effective Death Pen-
alty Act (“AEDPA”). 28 U.S.C. § 2244(d)(1). Gaston con-
cedes that he filed his petition more than one year after the
statutory period began to run, but he makes three arguments
why the statute should be tolled. We agree with his third argu-
ment, and hold, on the facts of this case, that Gaston is enti-
tled to tolling during the time his state court habeas
applications were pending. “Pending,” in this context,
includes the intervals between the dismissal of one state appli-
cation and the filing of the next one. Because Gaston is
allowed tolling for the time his state court applications were
pending, his federal habeas petition is timely. We therefore
reverse the district court’s dismissal of his petition and
remand for further proceedings.

I. Background

Gaston was found guilty by a Los Angeles County Superior
Court jury of one count of first degree murder in 1994, and
sentenced to 29-years-to-life in state prison. He timely
appealed. Although Gaston was appointed counsel for his
direct appeal, he moved to act as his own attorney. After Gas-
ton was warned, by both his appointed attorney and the Cali-
fornia Court of Appeal, of the pitfalls of representing himself
on appeal, the motion was granted.
 GASTON v. PALMER 8975
Acting as his own attorney, Gaston neglected to file a brief
in support of his appeal. On February 9, 1996, the California
Court of Appeal dismissed the appeal for failure to file a brief.
Gaston’s conviction became final on March 20, 1996, forty
days after the dismissal by the Court of Appeal. See Cal. R.
Ct. 24(b)(1), 28(e)(1). Because Gaston’s conviction became
final before the effective date of AEDPA, the statute of limi-
tations for the filing of his federal habeas application began
to run on April 24, 1996, the date AEDPA went into effect,
and expired (in the absence of tolling) on April 24, 1997. See
Carey v. Saffold, 536 U.S. 214, 216-17 (2002).

Gaston filed six applications for habeas corpus in the Cali-
fornia state courts. He filed his first application in the Califor-
nia Court of Appeal on July 11, 1995. This application was
denied on February 27, 1996, before his conviction became
final and before AEDPA’s statute of limitations began to run.
He filed his second application with the Los Angeles Superior
Court on June 9, 1997. This application was denied on July
17, 1997. Gaston filed four additional habeas applications in
the California state courts, all of which were denied. He filed
in the California Supreme Court on August 11, 1997 (denied
on April 15, 1998); in Los Angeles County Superior Court on
January 22, 1999 (denied on that date); in the California Court
of Appeal on February 8, 1999 (denied on April 27, 1999);
and in the California Supreme Court on February 28, 2000
(denied on June 2, 2000).

Gaston filed his first federal habeas petition on March 29,
1999. The district court dismissed the petition on March 1,
2000, “without prejudice to the petitioner’s right to file a new
petition after he has exhausted state remedies with regard to
all issues raised therein.” As noted above, the California
Supreme Court denied Gaston’s sixth and final state habeas
application on June 2, 2000. A few weeks later, on June 20,
2000, Gaston filed his second, current federal habeas petition.

In support of his federal petition, Gaston submitted sworn
statements and physicians’ evaluations documenting physical
8976 GASTON v. PALMER
and mental disabilities from which he states he suffers. He
states that he “hears voices,” that he suffers from severe pain
and multiple sclerosis, and that he is paralyzed from the waist
down. The record is in conflict as to the extent of these dis-
abilities, but it is undisputed that Gaston has been in a wheel-
chair and on psychoactive medications since at least early
1996. Gaston claims that his physical and mental disabilities
have made it difficult to gain access to, and to use effectively,
the prison law library to prepare his federal habeas petition.
The case was referred to a magistrate judge who recom-
mended that the district court dismiss the petition as time-
barred under AEDPA’s statute of limitations. 28 U.S.C.
§ 2244(d)(1). On de novo review, the district court adopted
the magistrate judge’s findings and recommendations and dis-
missed the petition with prejudice.

The district court denied Gaston’s application for a Certifi-
cate of Appealability. We granted a Certificate of Appeala-
bility on the issue of whether the district court properly
dismissed his application as untimely. We review issues of
law de novo and findings of fact for clear error. Houston v.
Roe, 177 F.3d 901, 905 (9th Cir. 1999).

II. Discussion

Gaston makes three arguments for tolling AEDPA’s statute
of limitations. He argues for equitable tolling; for relief due
to an unconstitutional state “impediment,” 28 U.S.C.
§ 2244(d)(1)(B); and for statutory tolling based on “pending”
state habeas applications. Id. § 2244(d)(2). We disagree with
Gaston’s first two arguments, but we agree with his third. We
discuss the arguments in order.

A. Equitable Tolling

[1] Gaston argues that he is entitled to equitable tolling
based on his self-representation on direct appeal and his phys-
ical and mental disabilities. “Equitable tolling will not be
 GASTON v. PALMER 8977
available in most cases, as extensions of time will only be
granted if ‘extraordinary circumstances’ beyond a prisoner’s
control make it impossible to file a petition on time.” Calde-
ron v. United States Dist. Ct. for the Centr. Dist. of Cal.
(Beeler), 128 F.3d 1283, 1288 (9th Cir. 1997), overruled in
part on other grounds, Calderon v. United States Dist. Ct. for
the Centr. Dist. of Cal. (Kelly), 163 F.3d 530, 540 (9th Cir.
1998). Gaston bears the burden of showing that equitable toll-
ing is appropriate. Miranda v. Castro, 292 F.3d 1063, 1065
(9th Cir. 2002).

[2] Gaston has not shown any causal connection between
his self-representation on direct appeal and his inability to file
a federal habeas application. It is true that his failure to file
an appellate brief while he represented himself caused his
appeal to be dismissed, but he has not shown that his self-
representation on appeal caused him to delay filing his federal
habeas application. See Spitsyn v. Moore, 345 F.3d 796, 799
(9th Cir. 2003) (petitioner must show that extraordinary cir-
cumstances were the cause of his untimeliness). Gaston’s
argument based on self-representation is therefore unpersua-
sive.

[3] Gaston’s argument that his physical and mental disabili-
ties constituted an “extraordinary circumstance” is also unper-
suasive. The magistrate judge believed, assuming no tolling
was available, that the statute of limitations expired on April
23, 1997. On this assumption, the magistrate judge’s report,
adopted by the district court, found the following:

[Gaston] alleges that he was physically and mentally
incapable of filing a petition on time. However, on
July 11, 1995, [Gaston] filed a state habeas petition
in the California Court of Appeal. Thus it is clear
that [Gaston] was physically and mentally capable of
preparing and filing a petition on that date. [Gaston]
filed a state habeas petition in the Los Angeles
County Superior Court on June 9, 1997. Thus, [Gas-
8978 GASTON v. PALMER
ton] was capable of preparing and filing a petition on
that date. [Gaston] does not allege that his physical
or mental condition between the two filings was sig-
nificantly worse than his condition immediately
before or after July 11, 1995 and June 9, 1997.
Because [Gaston] was capable of preparing and fil-
ing state court petitions on July 11, 1995 and June 9,
1997, it appears that he was capable of preparing and
filing a petition during the time in between those
dates. On the record presently before the court, it
appears that [Gaston] was capable of preparing and
filing a petition before the expiration of the statute of
limitations on April 23, 1997.

The record before the magistrate and district judges was
extensive, including numerous physicians’ reports and affida-
vits by Gaston. It was not clear error for the district court to
conclude that Gaston’s physical and mental condition
between July 11, 1995, and June 9, 1997, was not signifi-
cantly worse than his condition immediately before or after
those dates.

[4] The district court therefore properly rejected Gaston’s
argument for equitable tolling.

B. Impediment under 28 U.S.C. § 2244(d)(1)(B)

[5] Gaston also seeks relief from the statute of limitations
based on his contention that the State impeded his filing of a
federal habeas petition. Section 2244(d)(1)(B) provides that
the statute of limitations “shall run from the . . . date on which
the impediment to filing an application created by State action
in violation of the Constitution or laws of the United States
is removed[.]” Gaston argues that there were two such state
“impediments”: the California Court of Appeal’s granting his
request to represent himself on direct appeal, and the restric-
tions he faced as a physically disabled prisoner in making use
of the prison law library.
 GASTON v. PALMER 8979
[6] As noted above, Gaston has not shown a connection
between the State’s granting of his request to represent him-
self on appeal and his delay in filing his federal habeas peti-
tion. Therefore, Gaston’s first claimed impediment is not
persuasive.

The district court did not directly address Gaston’s second
claimed impediment. Gaston claims that the prison law library
facilities were insufficiently accessible and thus constituted an
impediment for someone with his physical disabilities. How-
ever, the district court’s rejection of equitable tolling based on
Gaston’s disabilities constitutes an implicit rejection of his
impediment argument. With respect to equitable tolling, the
district court concluded that Gaston’s disabilities did not ren-
der him incapable of filing in a timely manner because “he
was capable of preparing and filing state court applications on
July 11, 1995 and June 9, 1997, [so] he was capable of pre-
paring and filing a petition during the time in between those
dates.” Although Gaston states that he had no access to legal
materials or the prison law library while he was in the infir-
mary from November 1995 to March 1996, this episode took
place before the statute of limitations began running in April
1996. He otherwise makes no argument that his physical dis-
abilities were different in kind or degree during the period for
which he claims an impediment.

[7] The district court’s rationale for rejecting Gaston’s
equitable tolling argument squarely applies to this state
impediment claim. The district court therefore properly held
that there was no “impediment” to Gaston’s filing his federal
habeas petition within the meaning of § 2244(d)(1)(B).

C. Tolling under 28 U.S.C. § 2244(d)(2)

[8] Finally, Gaston argues for statutory tolling under 28
U.S.C. § 2244(d)(2). That section provides that “[t]he time
during which a properly filed application for State post-
conviction or other collateral review with respect to the perti-
8980 GASTON v. PALMER
nent judgment or claim is pending shall not be counted toward
any period of limitation under this subsection.” Because of the
unusual nature of California’s system of post-conviction col-
lateral relief, it is sometimes difficult to reconcile the statutory
tolling provision of § 2244(d)(2) with California habeas cor-
pus procedure. In particular, it is sometimes difficult to deter-
mine whether an application for California habeas relief is
“pending” within the meaning of § 2244(d)(2). However, we
do have two points of clearly established law to guide us.

[9] First, the period during which a properly filed habeas
application is actually before a state court — i.e., from the
date of its filing until its final disposition by that court — is
tolled. Under any definition of the term “pending,” the appli-
cation is pending during that time. See Saffold, 536 U.S. at
218 (implicitly so holding); Chavis v. LeMarque, 382 F.3d
921, 925 (9th Cir. 2004) (explicitly so holding), cert. granted,
125 S.Ct. 1969 (2005); Nino v. Galaza, 183 F.3d 1003, 1005
(9th Cir. 1999). Second, in states that provide for collateral
relief through the typical process of filing a habeas applica-
tion in a state court of first instance and then appealing its
denial “up the ladder” to an intermediate appellate court and
then to the state supreme court, the “interval[s] between a
lower court’s entry of judgment and the timely filing of a
notice of appeal (or petition for review) in the next court” are
also tolled. Saffold, 536 U.S. at 219-21 (describing procedure
in “typical ‘appeal’ States”). With these two established
points in mind, we consider the peculiarities of California’s
“original writ” system. See generally id. at 221-25; People v.
Duvall, 886 P.2d 1252, 1258-61 (Cal. 1995) (providing a
summary of California habeas corpus procedure).

[10] California is not a typical “appeal” state. Instead, the
California Constitution provides that each of the three levels
of state courts — Superior Courts, Courts of Appeal, and the
Supreme Court — has “original jurisdiction in habeas corpus
proceedings.” Cal. Const. art. VI, § 10. A California habeas
petitioner, in contrast to his counterparts in typical appeal
 GASTON v. PALMER 8981
states, may file an original application for habeas relief in a
Superior Court, a Court of Appeal, or the Supreme Court. See,
e.g., In re Clark, 855 P.2d 729, 735-36 (Cal. 1993) (petition-
er’s first habeas application was filed in California Supreme
Court). A Court of Appeal has “discretion to deny without
prejudice a habeas corpus petition that was not filed first in
a proper lower court” (i.e., in a Superior Court), but the Court
of Appeal need not do so. In re Steele, 85 P.3d 444, 449 (Cal.
2004) (citing, inter alia, In re Ramirez, 108 Cal. Rptr. 2d 229,
232 (Ct. App. 2001) (a Court of Appeal “ ‘has discretion to
refuse to issue the writ as an exercise of original jurisdiction
on the ground that application has not been made therefor in
a lower court in the first instance’ ”) (quoting In re Hillery,
20 Cal. Rptr. 759, 760 (Ct. App. 1962))).

An application for state habeas relief in California must
“allege with particularity the facts upon which [the petitioner]
would have a final judgment overturned.” In re Swain, 209
P.2d 793, 796 (Cal. 1949); see id. (“vague, conclusionary alle-
gations . . . are insufficient to warrant issuance of the
writ . . . .”); People v. Duvall, 886 P.2d 1252, 1258 (Cal.
1995) (an application for habeas corpus should “state fully
and with particularity the facts on which relief is sought”)
(citing, inter alia, Swain, 209 P.2d at 796). An application for
state habeas relief “should be filed as promptly as the circum-
stances of the case allow,” In re Stankewitz, 708 P.2d 1260,
1262 n.1 (Cal. 1986), and any “significant delay” must be
explained and justified with particularity by the petitioner.
Clark, 855 P.2d at 738 & n.5 (citing Swain, 209 P.2d at 795
(“[I]t is the practice of this court to require that one who belat-
edly presents a collateral attack such as this explain the delay
in raising the question.”)); Stankewitz, 708 P.2d at 1262 n.1
(petitioner “must point to particular circumstances sufficient
to justify substantial delay”). If an application for habeas
relief fails to state the relevant facts with particularity or to
explain and justify a significant delay, a California court may
deny it without prejudice and allow the petitioner to file “a
8982 GASTON v. PALMER
new petition which shall meet [these] requirements.” Swain,
209 P.2d at 796.

If the initially filed application for habeas relief in Califor-
nia state court is denied with prejudice, the applicant may file
a new original application in a different level of court or, if
the denial was from a Court of Appeal, he may “apply for a
hearing in the Supreme Court.” Cal. Penal Code § 1506; see
In re Reed, 663 P.2d 216, 216 n.2 (Cal. 1983) (although “the
sole and proper remedy after denial of a petition for writ of
habeas corpus by a Superior Court is to file a new petition
with the Court of Appeal,” “[f]urther review may be sought
in this court [i.e., the Supreme Court,] either by a new petition
for habeas corpus or, preferably, by a petition for hearing”)
(citing In re Michael E., 538 P.2d 231, 237 n.15 (Cal. 1975)).
Although the California Supreme Court “prefer[s]” that
habeas petitioners ask for a hearing in that court after a denial
by a Court of Appeal rather than file an original application,
Reed, 663 P.2d at 216 n.2, we are unaware of any penalty
imposed on a petitioner who files an original application in
lieu of requesting a hearing.

[11] While a habeas petitioner can file identical claims in
successive levels of California courts, he or she generally gets
only “one bite at the apple” in each court because California
has established a “general rule” that “all known claims” must
be presented in a single application to a given court. Clark,
855 P.2d at 760. Hence, “[b]efore considering the merits of a
second or successive petition, a California court will first ask
whether the failure to present the claims underlying the new
petition in a prior petition [filed in that court] has been ade-
quately explained, and whether that explanation justifies the
piecemeal presentation of the petitioner’s claims.” Id. at 745.

[A]bsent justification for the failure to present all
known claims in a single, timely petition for writ of
habeas corpus, successive and/or untimely petitions
will be summarily denied. The only exception to this
 GASTON v. PALMER 8983
rule are petitions which allege facts which, if proven,
would establish that a fundamental miscarriage of
justice occurred as a result of the proceedings lead-
ing to conviction and/or sentence.

Id. at 760 (emphasis in original). The California Supreme
Court explained the meaning of “fundamental miscarriage of
justice” as follows:

[F]or purposes of the exception to the procedural bar
against successive or untimely petitions, a “funda-
mental miscarriage of justice” will have occurred in
any proceeding in which it can be demonstrated: (1)
that error of constitutional magnitude led to a trial
that was so fundamentally unfair that absent the error
no reasonable judge or jury would have convicted
the petitioner; (2) that the petitioner is actually inno-
cent of the crime or crimes of which the petitioner
was convicted; (3) that the death penalty was
imposed by a sentencing authority which had such a
grossly misleading profile of the petitioner before it
that absent the trial error or omission no reasonable
judge or jury would have imposed a sentence of
death; (4) that the petitioner was convicted or sen-
tenced under an invalid statute. These claims will be
considered on their merits even though presented for
the first time in a successive petition or one in which
the delay has not been justified.

Id. at 760-61 (footnotes omitted).

With this background, we turn to the question of whether
Gaston’s habeas applications were properly filed and pending
such that he is entitled to tolling under 28 U.S.C.
§ 2244(d)(2).

1. “Properly Filed”

Because § 2244(d)(2) tolls only the time during which a
“properly filed” application for state collateral review is pend-
8984 GASTON v. PALMER
ing, we must examine Gaston’s six state habeas applications
to determine if each was properly filed within the meaning of
the statute. In Artuz v. Bennett, the Supreme Court construed
the meaning of “properly filed” as follows:

[A]n application is “properly filed” when its delivery
and acceptance are in compliance with the applicable
laws and rules governing filings. These usually pre-
scribe, for example, 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.
. . . But in common usage, the question whether an
application has been “properly filed” is quite sepa-
rate from the question whether the claims contained
in the application are meritorious and free of proce-
dural bar.

531 U.S. 4, 8-9 (2000) (emphasis omitted). Applying this con-
struction of the statute, we hold that all six of Gaston’s state
habeas applications were “properly filed.”

[12] Putting Gaston’s first and sixth state applications aside
for the moment, we observe that the California state courts
denied Gaston’s second through fifth applications without
comment or citation. We construe “postcard” denials such as
these to be decisions on the merits. Hunter v. Aispuro, 982
F.2d 344, 348 (9th Cir. 1992) (reaffirming Harris v. Superior
Court of the State of Cal. for the County of L.A., 500 F.2d
1124, 1128 (9th Cir. 1974) (en banc), cert. denied, 420 U.S.
973 (1975) (holding that “a postcard denial without opinion
[issued by the California Supreme Court] is . . . a decision on
the merits of the petition,” except where a citation in the order
indicates otherwise)); cf. Clark, 855 P.2d at 741 n.9
(“summary denial” of state habeas application “does not mean
that the court has not considered the merits of the claims”). A
decision on the merits necessarily implies that an application
was “properly filed,” because it is axiomatic that a court will
not rule on the merits of an improperly filed application. Gas-
 GASTON v. PALMER 8985
ton’s second through fifth applications may therefore be prop-
erly used for purposes of § 2242(d)(2) tolling.

Gaston’s sixth application was denied with citation to In re
Swain, 209 P.2d at 796, and People v. Duvall, 886 P.2d at
1258. In Swain, the California Supreme Court “denied”
Swain’s application “without prejudice to the filing of a new
petition which shall meet the requirements above,” i.e., the
requirements that Swain more fully elucidate the facts that
entitle him to habeas relief and “disclose his reasons for
delay[ ].” 209 P.2d at 796; see also Duvall, 886 P.2d at 1258
(a habeas application should “state fully and with particularity
the facts on which relief is sought”) (citing, inter alia, Swain,
209 P.2d at 796). The ruling in Swain was thus not a final rul-
ing on the merits of Swain’s state habeas application, but
rather was, in effect, a grant of a demurrer with leave to refile.
California is a “code pleading” state in which facts in a civil
suit must be pled with particularity, and a demurrer is the pro-
cedural device used to challenge the adequacy of pleading in
a complaint or crossclaim. See Smith v. Kern County Land
Co., 331 P.2d 645, 648 (Cal. 1958) (To prevail “against a spe-
cial demurrer, a plaintiff is required [ ] to ‘set forth in his
complaint the essential facts of his case with reasonable preci-
sion and with particularity sufficiently specific to acquaint the
defendant of the nature, source, and extent of his cause of
action.’ ”) (quoting Goldstein v. Healy, 201 P. 462, 463 (Cal.
1921)); Black’s Law Dictionary 444 (7th ed. 1999) (noting
that while in most jurisdictions, a “pleading stating that
although the facts alleged in a complaint may be true, they are
insufficient for the plaintiff to state a claim for relief and for
the defendant to frame an answer” is generally termed a
motion to dismiss, “the demurrer is still used in a few states,
including California”).

[13] In light of its citations to Swain and Duvall, we read
the California Supreme Court’s denial of Gaston’s sixth
habeas application as, in effect, the grant of a demurrer, i.e.,
a holding that Gaston had not pled facts with sufficient partic-
8986 GASTON v. PALMER
ularity. While Gaston’s sixth application was thus procedur-
ally deficient under California law, it was not improperly filed
within the meaning of § 2244(d)(2). Bennett, 531 U.S. at 9
(“the question whether an application has been ‘properly
filed’ is quite separate from the question whether the claims
contained in the application are . . . free of procedural bar”)
(emphasis omitted). There is no indication that the application
was time-barred, lodged in the wrong court or office, or for-
matted improperly. See id. at 8. Thus, because Gaston’s sixth
state application’s “delivery and acceptance [was] in compli-
ance with the applicable laws and rules governing filings,” it
was “properly filed” despite being procedurally flawed, and
therefore may properly be used for purposes of § 2244(d)(2)
tolling.

[14] The California Court of Appeal denied Gaston’s first
state habeas application “for lack of an adequate record.”
While the Court of Appeal did not cite any case law, we read
this denial as based on a procedurally analogous ground to
that underlying the denial of Gaston’s sixth application. The
sixth application was denied for failure to plead facts with
sufficient particularity; the first application was denied for
failure to supply a record with supporting facts. We therefore
construe the Court of Appeal’s denial of Gaston’s first appli-
cation as a denial without prejudice, analogous to the
Supreme Court’s denial without prejudice of Gaston’s sixth
application. In both cases, the dismissal was based on a fact-
related deficiency, either as a matter of pleading of the facts,
or of presentation of the record from which the facts could be
ascertained. In neither case was the denial based on a holding
that the application was improperly filed.

[15] We therefore conclude that all of Gaston’s six Califor-
nia habeas applications were “properly filed” within the
meaning of § 2244(d)(2).

2. “Application” and “Claim”

We next consider the tolling effect of Gaston’s state appli-
cations under 28 U.S.C. § 2244(d)(2). Before doing so, how-
 GASTON v. PALMER 8987
ever, we note a key difference in the analysis of tolling under
§ 2244(d)(2), on the one hand, and exhaustion under 28
U.S.C. § 2254(b)(1)(A), on the other. Section 2244(d)(2) pro-
vides for tolling while a habeas “application” is pending in
state court. A habeas “application” for which the period is
tolled may contain one or more “claims.” See Bennett, 531
U.S. at 9. Section 2254(b)(1)(A) requires a federal habeas
petitioner to have exhausted his or her claims in state court
before coming to federal court. Exhaustion is determined on
a claim-by-claim basis. See, e.g., Hiivala v. Wood, 195 F.3d
1098, 1106 (9th Cir. 2003) (“A habeas petitioner must give
the state courts the first opportunity to review any claim of
federal constitutional error before seeking federal habeas
review of that claim.”) (emphasis added). “Only individual
claims, and not the application containing those claims, can
be procedurally defaulted under state law” pursuant to the
adequate and independent state ground doctrine. Bennett, 531
U.S. at 9 (emphasis in original). In Bennett, the Supreme
Court held that the issue of whether a state habeas application
was “properly filed” is to be answered by looking at the “ap-
plication” for state habeas relief as a single entity, and not to
the claims contained therein on a claim-by-claim basis. Id. at
10. It follows that the relevant question for § 2244(d)(2) toll-
ing purposes is whether a properly filed application is pending
in state court, and not whether any particular claim was con-
tained in that application. Bennett, 531 U.S. at 8-10.

3. “Pending”

We know that AEDPA’s statute of limitations is tolled pur-
suant to § 2244(d)(2) during the periods between the filing of
Gaston’s applications in the California courts and the disposi-
tion of those applications. See Saffold, 536 U.S. at 218;
Chavis, 382 F.3d at 925; Nino, 183 F.3d at 1005. Whether
Gaston is entitled to tolling of the intervals between the dispo-
sition of one application and the filing of another is, however,
a more complicated matter.
8988 GASTON v. PALMER
[16] In Saffold, the State of California argued that
AEDPA’s statute of limitations should not be tolled during
the intervals between applications because “during this period
of time, the petition is not under court consideration” and
therefore not “pending.” 536 U.S. at 219. The Supreme Court
disagreed. It wrote, first, that California’s “reading of the
word ‘pending’ [ ] is not consistent with the word’s ordinary
meaning,” id. at 219, and, second, that such a construction of
“pending” would do violence to Congress’s intent in passing
AEDPA. It explained:

California’s reading would also produce a serious
statutory anomaly. A federal habeas petitioner must
exhaust state remedies before he can obtain federal
habeas relief. The statute makes clear that a federal
petitioner has not exhausted those remedies as long
as he maintains “the right under the law of the State
to raise” in that State, “by any available procedure,
the question presented.” 28 U.S.C. § 2254(c). We
have interpreted this latter provision to require the
federal habeas petitioner to “invok[e] one complete
round of the State’s established appellate review pro-
cess.” O’Sullivan v. Boerckel, 526 U.S. 838, 845 [ ]
(1999). The exhaustion requirement serves
AEDPA’s goal of promoting “comity, finality, and
federalism,” Williams v. Taylor, 529 U.S. 420, 436
(2000), by giving state courts “the first opportunity
to review [the] claim,” and to “correct” any “consti-
tutional violation in the first instance.” Boerckel,
supra, at 844-845. And AEDPA’s limitations period
— with its accompanying tolling provision —
ensures the achievement of this goal because it “pro-
motes the exhaustion of state remedies while
respecting the interest in the finality of state court
judgments.” Duncan v. Walker, 533 U.S. 167, 178
(2001). California’s interpretation violates these
principles by encouraging state prisoners to file fed-
eral habeas petitions before the State completes a full
 GASTON v. PALMER 8989
round of collateral review. This would lead to great
uncertainty in the federal courts, requiring them to
contend with habeas petitions that are in one sense
unlawful (because the claims have not been
exhausted) but in another sense required by law
(because they would otherwise be barred by the 1-
year statute of limitations).

Id. at 220. The Court therefore concluded that habeas petition-
ers in “typical ‘appeal’ States” are entitled to “interval” toll-
ing under § 2244(d)(2), that is, to tolling for the time “during
the interval between a lower court’s entry of judgment and the
timely filing of a notice of appeal (or petition for review) in
the next court.” Id. at 219, 221.

The Court in Saffold held that habeas petitioners proceed-
ing through California’s “original writ” system are also enti-
tled to “interval tolling.” Id. at 223; see Nino, 183 F.3d at
1006 (holding that “the AEDPA statute of limitations is tolled
for ‘all of the time during which a state prisoner is attempting,
through proper use of state court procedures, to exhaust state
court remedies with regard to a particular post-conviction
application.’ ”) (quoting Barnett v. Lemaster, 167 F.3d 1321,
1323 (10th Cir. 1999)). In Saffold, the Court was presented
with a petitioner who had followed a neat progression in the
California courts. The petitioner filed his first habeas applica-
tion in the Superior Court, his second application in the Court
of Appeal, and his third application in the California Supreme
Court. All applications stated the same four claims, and all
applications were denied. 536 U.S. at 217; see Welch v.
Carey, 350 F.3d 1079, 1082 (9th Cir. 2003) (en banc) (dis-
cussing Saffold). Five days elapsed from the time the Superior
Court denied the application until the applicant filed in the
Court of Appeal, and 140 days1 elapsed from the time the
1
The Supreme Court decision in Saffold describes the final interval as
four and one-half months. Saffold, 536 U.S. at 217. The earlier Ninth Cir-
cuit opinion specifies the interval as running from June 26, 1997 to
November 13, 1997, a period of 140 days. Saffold v. Newland, 250 F.3d
1262, 1266 (9th Cir. 2000).
8990 GASTON v. PALMER
Court of Appeal denied the application until he filed in the
California Supreme Court. Id. On these facts, the Supreme
Court held that California’s “original writ” habeas system
operated with sufficient similarity to the typical “appeal” sys-
tems found in other states to treat the two systems as func-
tional equivalents. Id. at 223. Applying the rules applicable to
“appeal” systems, the Supreme Court held that § 2244(d)(2)
allowed tolling for the periods during which the three applica-
tions were actually pending before the Superior Court, Court
of Appeal, and California Supreme Court, as well as for inter-
vals between each court’s denial and the next filing. Saffold,
536 U.S. at 217. It remanded for a determination by this court
whether the 140-day interval had been deemed too long by the
California Supreme Court. Id. at 226.

Not all California habeas applicants proceed through the
California courts in as orderly a fashion as the applicant in
Saffold. When applicants follow a more complicated or circu-
itous route, California’s “original writ” system and its flexible
procedural rules fit awkwardly with AEDPA’s regime of
cooperative federalism and deference to state courts. Since
Saffold, this circuit has developed a framework for applying
AEDPA’s statutory tolling rules to petitioners from Califor-
nia.

On remand from the Supreme Court in Saffold, we held that
the timeliness of a California state habeas application depends
entirely on California law. That is, our determination of
whether a California applicant sought habeas relief in a timely
fashion is governed by whether the California courts have dis-
missed his applications as untimely. Saffold v. Carey, 312
F.3d 1031, 1036 n.1 (9th Cir. 2002) (“Saffold II”). We
explained our decision as follows:

We take pains to note that we have not been asked
to provide any bright-line rule for determining what
constitutes “unreasonable” delay under California’s
indeterminate timeliness standard. While such a
 GASTON v. PALMER 8991
bright-line rule would certainly be welcomed, it is
ultimately irrelevant to the determination of this
case. In any event, such an issue is more appropri-
ately decided by the California Supreme Court or the
California State Legislature.

Id. at 1036 n.1. We followed the analysis in Saffold II in
Chavis v. LeMarque, 382 F.3d 921, 925-26 (9th Cir. 2004),
cert. granted, 125 S.Ct. 1969 (2005), where the interval
between the petitioner’s first and second habeas applications
in California state court was three years. Relying on Saffold
II, we held that timeliness was a matter for the state courts to
determine:

The state argues that we must determine the rea-
sonableness of the three-year delay during Chavis’s
first round of state petitions, looking to state law.
However, we rejected that approach on remand in
Saffold, and held that the relevant inquiry is whether
the state court denied the petition as untimely.

Id. at 925-26.

Next, in Welch v. Carey, 350 F.3d 1079 (9th Cir. 2003) (en
banc), we held that a state habeas applicant is not entitled to
interval tolling when he abandons the claims in his first appli-
cation. The applicant in Welch filed a first habeas application
in California Superior Court in 1994 asserting ineffective
assistance of counsel. The application was denied shortly
thereafter. Four years later, he filed another application for
state habeas relief, this time in the California Supreme Court.
In this second state application, “he alleged new and different
grounds for relief than the ground advanced in his 1994
claim.” Id. at 1080. The completely different claims in the
second application, coupled with the four-year delay, led us
to conclude that the petitioner had “abandoned” his first set of
claims. We therefore held that there was no application
“pending” for purposes of § 2244(d)(2) during the interval
8992 GASTON v. PALMER
between his first and second applications. Id. at 1083. Thus,
the petitioner was not entitled to interval tolling for the four-
year interval between applications. Id. at 1083-84.

Finally, in Delhomme v. Ramirez, 340 F.3d 817, 820 (9th
Cir. 2003), we held that “[t]he period of time that an applica-
tion for post-conviction review is pending is not affected or
‘untolled’ merely because a petitioner files additional or over-
lapping petitions before it is complete.” In Delhomme, the
petitioner had filed two new habeas applications in the Cali-
fornia Court of Appeal despite the fact that he already had a
petition pending in that court. And later, while his application
to the California Supreme Court was pending, he filed new
petitions in both the Superior Court and the Court of Appeal.
We determined that these “overlapping petitions” did not
affect Delhomme’s entitlement to interval tolling. That is, the
fact that Delhomme had started new rounds of review while
the first one was still under way did not interrupt or interfere
with that first “complete round” of state habeas review. Had
Delhomme completed his first full round of review before
beginning a new round with subsequent filings, he would not
have been entitled to tolling for the interval between the com-
pletion of the first round and the beginning of the second. See
Biggs v. Duncan, 339 F.3d 1045, 1048 (9th Cir. 2003)
(“Because the claims raised in the petition to the California
Supreme Court were fully exhausted and his first round of
collateral review was complete when the Court’s ruling
became final, he is not entitled to tolling of the 129-day
period before he began a second round of petitions with his
filing in Superior Court.”).

[17] Reading Saffold, Welch, and Delhomme together, we
know the following. First, the length of time available for
interval tolling between California state habeas applications is
determined by state law. Second, a California habeas appli-
cant is not entitled to interval tolling if he abandons all of his
claims in his first application and his second application sets
forth new and different claims. Finally, an applicant is entitled
 GASTON v. PALMER 8993
to interval tolling for one full round of state habeas review
even if he initiates a new round of review before the first
round is complete. With these propositions in mind, we exam-
ine Gaston’s six state habeas applications.

Gaston’s first application, filed in the California Court of
Appeal on July 11, 1995, asserted four grounds for relief:

(1) false imprisonment and ineffective assistance
of counsel (“IAC”) for failing to call witnesses
in this regard;

(2) lack of Miranda warnings and IAC for failing
to challenge the violation;

(3) IAC for failing to move to suppress a gun;

(4) deprivation, by trial attorney, of trial transcripts
to be used for pro se appeal.

This application was denied on February 27, 1996, for lack of
an adequate record, before AEDPA’s statute of limitations
began to run. As explained above, we construe such a denial
as the equivalent of a demurrer with leave to refile.

Gaston’s second application was filed in California Supe-
rior Court on June 9, 1997, shortly after the statute of limita-
tions would have expired in the absence of tolling. This
second application sought relief on several of the same
grounds as the first application, though it also included addi-
tional grounds for relief. This application sought relief on five
grounds:

(1) false imprisonment and IAC for failing to call
witnesses in this regard;

(2) physically coerced confession, lack of Miranda
warnings, IAC for failing to challenge these
violations;
8994 GASTON v. PALMER
(3) IAC for failing to move to suppress a gun;

(4) IAC for failure to challenge ballistic test;

(5) illegal search of Gaston’s girlfriend’s resi-
dence.

This second application was denied on July 17, 1997.

Gaston’s third application was filed in the California
Supreme Court on August 11, 1997. It sought relief, based
entirely on California law, from the procedural default of fail-
ing to file an appellate brief in Gaston’s direct appeal from his
conviction. This application did not raise any of the claims
raised in Gaston’s earlier or later applications. It was denied
on April 15, 1998.

Gaston’s fourth, fifth, and sixth applications were filed in
California Superior Court on January 22, 1999 (denied on that
date), the California Court of Appeal on February 8, 1999
(denied on April 27, 1999), and the California Supreme Court
on February 28, 2000 (denied on June 2, 2000). In each of
these applications, Gaston continued to seek relief on grounds
raised in his first and second applications. He also asserted
additional grounds. Each application asserted the following
eleven grounds for relief:

(1) IAC for failing to call witnesses regarding false
imprisonment;

(2) physically coerced confession;

(3) IAC for failing to move to suppress a gun;

(4) IAC for failing to discover tape recorded evi-
dence regarding Miranda violation;

(5) IAC for failure to challenge ballistic test;
 GASTON v. PALMER 8995
(6) IAC for conflict of interest;

(7) insufficient evidence to convict;

(8) Brady violation;

(9) prosecutorial misconduct;

(10) abuse of discretion by appeals court to allow
him to act as own attorney;

(11) IAC for failure to object to hearsay.

None of these applications was denied by the California
courts on timeliness grounds.

To recapitulate, the sequence of Gaston’s six state court
applications was as follows: (1) Court of Appeal; (2) Superior
Court; (3) Supreme Court; (4) Superior Court; (5) Court of
Appeal; (6) Supreme Court. Gaston’s first application, filed in
the Court of Appeal, was dismissed without prejudice for lack
of documentation. Both the filing and dismissal took place
before the effective date of AEDPA. Because the Court of
Appeal dismissed the application without prejudice, later fil-
ings based on the same claims, in that court or any other
court, were not precluded. Because Gaston’s second applica-
tion, filed in Superior Court, sought relief on several of the
same grounds as his first application, it was part of Gaston’s
first full round of review, which had been begun with the fil-
ing of the first application. See King v. Roe, 340 F.3d 821,
823 (9th Cir. 2003). Gaston’s third application, filed in the
Supreme Court, initiated a new, overlapping round of review
based on state, rather than federal, law.

Gaston’s fourth application is somewhat anomalous
because he filed it in Superior Court, which had already
rejected some of the claims raised therein. That is likely why
the Superior Court rejected the application on the day it was
8996 GASTON v. PALMER
received. After that rejection, Gaston began moving up the
ladder, raising in his fifth and sixth applications, in the Court
of Appeal and the Supreme Court, precisely the same claims
he had raised in his fourth application in the Superior Court.
Gaston’s sixth application was the first application in which
he raised in California Supreme Court the claims he now
seeks to bring in his federal habeas petition. After the Califor-
nia Supreme Court denied that sixth application, Gaston came
directly to federal court.

Gaston did not complete a full round of habeas review until
the California Supreme Court denied his sixth and final
habeas application. In seeking habeas review, Gaston behaved
exactly as a petitioner in a typical appeal state would, with
three minor exceptions.

First, Gaston’s third application initiated a new, overlap-
ping round of review in the Supreme Court, based on Califor-
nia law, while his first round of review was still pending.
Because this application (and second round) was based on
state law, it is irrelevant for purposes of exhaustion and com-
pletion of Gaston’s first round of state court collateral review
of his federal claims. But even if this application had been
based on federal law, Delhomme tells us that a habeas peti-
tioner’s entitlement to statutory tolling for one full round of
state habeas review is not affected by his filing of an indepen-
dent habeas application during that initial round. 340 F.3d at
820. The only difference between this case and Delhomme is
that Gaston began his new round of review in the Supreme
Court, rather than in a lower court. But under California law,
a round of habeas review can begin in any level of court.
Indeed, in Welch, we held that the petitioner initiated a new
round of review by filing in the Supreme Court. 350 F.3d at
1082.

Second, Gaston filed the some of the same claims twice in
the Superior Court, in his second and fourth applications. Par-
ticularly given that the redundant fourth application was pend-
 GASTON v. PALMER 8997
ing for only one day, we did not find this application
significant. We are aware of no case suggesting that the filing
of a redundant petition, which is denied immediately, deprives
a petitioner of the right to interval tolling. Alternatively, if we
construe Gaston’s redundant fourth application as the start of
a new round of habeas review, it does not affect Gaston’s
entitlement to statutory tolling. In that case, the fourth appli-
cation would fall under Delhomme’s rule that beginning a
new round of habeas review while the first is ongoing does
not affect one’s entitlement to tolling for the entirety of the
first round of review.

Third, Gaston filed his first application in the Court of
Appeal and his second in the Superior Court. The Court of
Appeal dismissed the initial application without prejudice on
the procedural ground that Gaston had failed to supply suffi-
cient supporting documents. Under California law, Gaston
was permitted to file another application in which the proce-
dural deficiency was corrected, and to do so in any court,
including the Superior Court. See King v. Roe, 340 F.3d at
823 (when a California petitioner files a subsequent petition,
it does not constitute a new round of review if the petitioner
is simply attempting to correct deficiencies in an earlier fil-
ing). We regard as insignificant the fact that Gaston filed his
second application in the Superior Court rather than in the
Court of Appeal. Gaston was in no way seeking to overturn
the decision of the Court of Appeal. Rather, he was merely
trying to correct the procedural deficiency in his initial appli-
cation that had been pointed out by the court, and to file a pro-
cedurally proper application in what was a permissible —
indeed, under California law, the preferred — forum for an
initial application.

[18] Nothing about the course that Gaston took through
California’s courts in seeking habeas relief undermines the
conclusion that Gaston is entitled to statutory tolling during
the time he was completing his first full round of habeas
review. That period lasted from the filing of his first applica-
8998 GASTON v. PALMER
tion to the denial of his sixth. There can be no doubt that Gas-
ton’s first full round of habeas review lasted far longer than
it would in a typical appeal state with strict filing deadlines,
but we are required to give deference to the structure of Cali-
fornia’s habeas system, and to the fact that no state court dis-
missed any of Gaston’s applications as untimely. See Saffold
II, 312 F.3d at 1036 n.1; Chavis, 382 F.3d at 925-26.

[19] Because Gaston is entitled to tolling for the duration
of his first full round of state habeas review, AEDPA’s statute
of limitations was tolled until June 3, 2000, the date his sixth
petition was denied by the California Supreme Court. Gaston
filed his second federal habeas petition on June 20, 2000, only
seventeen days into the limitations period. Gaston’s petition
is therefore timely.

4. Exhaustion

[20] Because the district court dismissed Gaston’s second
federal habeas petition as untimely, it did not reach the ques-
tion whether the claims contained in the petition had been
exhausted in state court. We remand to the district court for
a determination of whether those claims have been exhausted.

Conclusion

For the reasons stated above, we VACATE the dismissal of
Gaston’s federal habeas application as untimely and
REMAND to the district court for further proceedings.

KLEINFELD, Circuit Judge, dissenting:

Gaston murdered a man in the summer of 1992, and was
convicted of the murder in 1994. Yet now, more than a
decade later, he is still litigating his case. Congress tried to
put a stop to this sort of endless habeas litigation by imposing
 GASTON v. PALMER 8999
a one-year statute of limitations, which is reasonably tolled
while a prisoner is exhausting his state remedies, but we have
to a considerable extent gutted that statute. Today, we punch
a new hole in the statute of limitations.

The majority has done a commendable job of figuring out
what Gaston’s many pro se filings are trying to say. Part of
the error in the majority opinion is compelled by circuit law
that I think is mistaken. But the majority also makes what I
believe is a new mistake. That mistake is treating the statute
of limitations as tolled pending state exhaustion, when,
instead of going “up the ladder” from the California Superior
Court, to the Court of Appeal, to the Supreme Court, the peti-
tioner goes up, down, and sideways. This new mistake puts
today’s decision in tension, if not in conflict, with three other
decisions of this court.

I concur in most of the majority opinion, and speak here
only to the aspects of the tolling issue with which I disagree.

Duration of the gaps between petitions

Gaston had gaps of approximately nine and ten months,
specifically 282 days and 307 days, when he had nothing
pending anywhere in the California courts. The statute of lim-
itations says that time is tolled when a properly filed applica-
tion for post-conviction relief is “pending” in state court.
Nothing was pending during the long periods between Gas-
ton’s petitions. Nevertheless, our decision in Chavis v. LeMar-
que,1 which came down after our original panel decision in
this case, now compels us to treat even a three-year gap
between filings when nothing is pending as though something
actually were pending, so long as the subsequent state appli-
cation for post conviction relief was denied on grounds other
1
Chavis v. LeMarque, 382 F.3d 921 (9th Cir. 2004), cert. granted, 125
S. Ct. 1969 (2005).
9000 GASTON v. PALMER
than untimeliness.2 Chavis strikes me as bad law. If the state
court concludes that the state petition was untimely, “that is
the end of the matter,” under Pace v. DiGuglielmo,3 but, as
the Supreme Court decision in Carey v. Saffold4 points out, a
state court decision rejecting a petition on the merits does not
imply that the petition was timely.5 Nevertheless, if Chavis
stands, then Gaston is entitled to the fiction that his state
applications were “pending” during the nine and ten month
periods when they were not. Evidently, filings within three
years of dismissals are timely enough to keep a petition
“pending” under our circuit’s law, unless a state court
expressly states that the petition is “untimely.”6

Up, down, and sideways

Gaston was popping petitions all over the California court
system. The panel’s decision to treat his petitions as maintain-
ing “one complete round” of “pending” post-conviction relief
is contrary to circuit law. This mistake is new to Ninth Circuit
law.

In a typical state system, a prisoner may file a petition for
a state writ of habeas corpus or other post-conviction relief in
the state trial court of general jurisdiction. If he loses, he can
appeal to the state intermediate appellate court, and then if he
loses there, he can petition for review to the state supreme
court. Obviously, the state proceedings are pending between
the time of filing and the time of decision. But what about the
time between a decision in a lower court and the filing of an
appeal or petition for review in the next court up? Fairness
and the policy requiring exhaustion in state court require that
3
Id. at 925-26.
3
Pace v. DiGuglielmo, 125 S. Ct. 1807, 1812 (2005).
4
Carey v. Saffold, 536 U.S. 214 (2002).
5
Id. at 226.
6
Chavis, 382 F.3d at 926.
 GASTON v. PALMER 9001
the time during these intervals — typically controlled by a
rule or statute providing for perhaps thirty days — is treated
as though a properly filed application was “pending.” Other-
wise, time would accumulate against the short, one-year stat-
ute of limitations while the prisoner was giving the state’s
appellate courts a chance to correct any error the trial court
may have made.

California is different from a typical state in form, but not
function. A prisoner files his petition in the state superior
court, but if he loses, he does not “appeal” to the state’s inter-
mediate appellate court. Instead he files a new petition there.
And instead of being limited to thirty or some other fixed
number of days, he is limited to a “reasonable time.” Like-
wise, if he loses at the intermediate appellate court, he can file
a new petition within a reasonable time in the state supreme
court. As the Supreme Court said in Saffold, “California’s col-
lateral review process functions very much like that of other
states, but for the fact that its timeliness rule is indeterminate.”7
The prisoner, Saffold explains, properly “ ‘invokes one com-
plete round of the State’s established appellate review pro-
cess’ ” to exhaust his claim.8

So, leaving out the timeliness problem, which is solved for
Gaston by Chavis, did he follow the procedure recognized by
Saffold as analogous to the usual state procedure? Not at all.
He started in the middle, at the Court of Appeal. Then he went
downstairs instead of upstairs, to the Superior Court. Then he
went upstairs skipping a floor, to the Supreme Court. Then he
went down two floors to the Superior Court. Then he went
one flight up, to the Court of Appeal, and then another flight,
to the Supreme Court.9 When he went downstairs instead of
7
Saffold, 536 U.S. at 222.
8
Id. at 220 (quoting O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999)).
9
Gaston’s haphazard fillings throughout the California court system are
as follows: (1) California Court of Appeal, July 11, 1995 (denied February
9002 GASTON v. PALMER
upstairs, from the Court of Appeal to the Superior Court, he
had deviated from the “one complete round of the State’s
established appellate review process” he was entitled to. The
one-year period given to Gaston by AEDPA to exhaust his
state remedies started in April 1996, when the Court of
Appeal’s denial of his petition became final. He did not file
another petition until his trip downstairs to the Superior Court
in July 1997. Had he been pursuing “one complete round of
the State’s established appellate review process” during that
year, the statute of limitations would be tolled, but he was not
pursuing anything during the long gaps between his filings.
Even if the long fallow periods are ignored under Chavis,
Gaston went the wrong way. A prisoner making “one com-
plete round of the State’s established appellate review pro-
cess” has to go upstairs, not downstairs, at each step.
Otherwise, his course makes no sense, because a lower court
cannot reverse a higher court.

We issued a trilogy of cases on the up, down, and sideways
problem: Biggs v. Duncan,10 King v. Roe,11 and Delhomme v.
Ramirez.12 Biggs holds that when a prisoner who had filed
habeas petitions in the Superior Court, the Court of Appeal,
and the Supreme Court, then filed another one in the Superior
Court, he thereby “kicked off a new round” and the AEDPA
limitations period is only tolled for one round.13 Biggs empha-
sizes that during the state exhaustion process, a California

27, 1996), (2) California Superior Court, June 9, 1997 (denied June 17,
1997), (3) California Supreme Court, August 11, 1997 (denied April 15,
1998) (4) California Superior Court, January 22, 1999 (denied January 22,
1999), (5) California Court of Appeal, February 8, 1999, (denied April 27,
1999), and (6) California Supreme Court, February 28, 2000 (denied June
2, 2000).
10
Biggs v. Duncan, 339 F.3d 1045 (9th Cir. 2003).
11
King v. Roe, 340 F.3d 821 (9th Cir. 2003).
12
Delhomme v. Ramirez, 340 F.3d 817 (9th Cir. 2003).
13
Biggs, 339 F.3d at 1048.
 GASTON v. PALMER 9003
petition is “pending” only “during the ‘intervals between a
lower court decision and filing of a new petition in a higher
court.’ ”14 Biggs quoted this phrase from the Supreme Court
decision in Saffold, adding the emphasis to the words “lower”
and “higher.” The panel in Biggs noted that the petition
remained pending “while he worked his way up the ladder,”
but not when he filed in the Superior Court after his Supreme
Court filing, because then he was not going “up the ladder.”
Circuit law under Biggs is that a new petition filed down the
ladder, instead of up, is not part of the “one full round” a peti-
tioner gets in state court, so the period between the higher
court dismissal and the lower court filing is not a time when
a petition is “pending” in state court.

In King, the petitioner’s subsequent petitions did not
merely remedy deficiencies in his first petition or elaborate
upon the facts relevant to his claims in his first petition, so we
held that they were not part of his “one full round” and his
one-year period expired despite their pendency.15 In Del-
homme, while the prisoner’s petitions were pending in their
respective up-the-ladder courts during his one full round, he
filed additional overlapping petitions — sideways in the same
court and down the ladder in lower courts.16 We held that toll-
ing nevertheless saved him from the one-year bar.17 The rea-
son was not that the up, down, and sideways petitions tolled
the statute, as the majority decides today. Instead, we held in
Delhomme that the up, down, and sideways petitions were
mere noise, with “no effect on the already pending applica-
tion,” because he still had his “one complete round” pending
while he filed the extraneous petitions.18 Gaston, by contrast,
did not. His one complete round was all over, except for the
14
Id. (quoting Saffold, 536 U.S. at 223) (emphasis in original).
15
King, 340 F.3d at 823.
16
Delhomme, 340 F.3d at 819.
17
Id. at 820-21.
18
Id. at 821.
9004 GASTON v. PALMER
part on which he procedurally defaulted (a petition to the
Supreme Court after the Court of Appeal dismissed his peti-
tion), when he went downstairs to the Superior Court.

The majority summarizes Gaston’s claims, showing that his
second application included some of the claims in his first
application, but not all, and included some new claims, that
his third application included only an entirely different claim,
and that his fourth, fifth and sixth applications included some
claims from his first, some from his second, and many claims
that were in neither. But then it concludes, despite our author-
ity to the contrary, that “Gaston did not complete a full round
of habeas review until the California Supreme Court denied
his sixth and final habeas application.”

Gaston had nothing actually pending in any court during
the entire year from when the statute began to run, April 24,
1996, to when the one year period ended, April 24, 1997. The
only way his third, fourth, fifth, and sixth petitions matter is
if he, by legal fiction, is treated as though he had something
pending during that year when he did not, because he was
completing his “one full round.”

Had Gaston filed a second, remedial, petition in the Court
of Appeal after that court denied his first petition for “lack of
adequate record” on February 27, 1996, or had he remedied
the defect in his record and gone “up the ladder,” as Biggs and
King put it, then he would have been completing his one full
round. By going down the ladder with a different set of
claims, he “kicked off a new round” and the AEDPA limita-
tions period is only tolled for one round. Unlike the petitioner
in Delhomme, he did not have his “one full round” still going
on while he made his sundry filings. Gaston’s round was all
done when the Court of Appeal denied his petition in Febru-
ary 1996, because he never remedied its deficiencies or refiled
that petition in a higher court.

The majority says that even if Gaston’s fourth petition in
Superior Court was the start of a new round, it would not mat-
 GASTON v. PALMER 9005
ter under Delhomme because his first round was still going
on. That would be so under Delhomme only if his first round
really was going on. He could have kept it going by a
renewed petition in the Court of Appeal, correcting deficien-
cies in the filing that caused it to be dismissed, or if he had
simultaneously corrected the deficiencies and exhausted the
claims “up the ladder” in the Supreme Court. He did neither.
Unlike Delhomme, and like Biggs and King, Gaston was (at
best) starting a new round when he took a new set of eleven
claims to Superior Court in January 1999.

Is the law in our circuit now that — if a petitioner has filed
anything in any state court before the statute of limitations
ran, and after intervals of no more than three or four years
between denials, files something else in any state court —
AEDPA’s statute of limitations is completely ineffectual? If
no California court expressly states that the filings are
untimely, perhaps that is, as of today, circuit law. Treating
Gaston’s random walk up and downstairs in the California
court system as analogous to an ordinary state appellate pro-
cess of exhausting one full round of post conviction relief
does not square with common sense.