FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SAMUEL QUINTON BONNER, No. 02-56022
Petitioner-Appellant, D.C. No.
v. CV-99-00091-
TOM CAREY, Warden, DOC(MAN)
Respondent-Appellee.
OPINION
Appeal from the United States District Court
for the Central District of California
David O. Carter, District Judge, Presiding
Submitted August 7, 2003*
Submission Deferred March 8, 2004
Resubmitted October 6, 2005
Pasadena, California
Filed October 6, 2005
Before: Alex Kozinski and Thomas G. Nelson,
Circuit Judges, and Jane A. Restani, ** Chief IT Judge.
Opinion by Judge T.G. Nelson
*This panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
**The Honorable Jane A. Restani, Chief Judge, United States Court of
International Trade, sitting by designation.
13905
13908 BONNER v. CAREY
COUNSEL
Jerry D. Whatley, Santa Barbara, California, for the appellant.
Theresa A. Cochrane, Deputy Attorney General, Los Angeles,
California, for the appellee.
OPINION
T.G. NELSON, Circuit Judge:
Samuel Quinton Bonner appeals the district court’s dis-
missal of his habeas petition. We have jurisdiction under 28
U.S.C. § 1291, and vacate and remand for further proceed-
ings. We conclude that the California Superior Court denied
Bonner’s petition as untimely when it said that he could have
raised the petition’s claims in an earlier petition and that there
“[wa]s no reason stated for any delay in this regard.” Under
Pace v. DiGuglielmo,1 this means that Bonner’s petition was
never “properly filed” for purposes of the tolling provision of
the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA).2 Accordingly, Bonner is not entitled to statutory
tolling for the period from April 24, 1996, when the one-year
1
___ U.S. ___, 125 S. Ct. 1807 (2005).
2
Id. at 1812; 28 U.S.C. § 2244(d)(2).
BONNER v. CAREY 13909
statutory period began to run,3 to September 24, 1998, when
he filed his federal petition. Thus, regardless of whether the
district court misled Bonner concerning his options as to how
to proceed with his “mixed” petition,4 the statute of limita-
tions bars his petition unless he can show that he is entitled
to equitable tolling. We remand to allow the district court to
consider his arguments for equitable tolling.
I
Background
Bonner was convicted of first degree murder in 1983. He
unsuccessfully sought habeas relief in the California courts in
1990 and 1991. In 1995, he filed a new habeas petition in Los
Angeles Superior Court. Based on what he deemed newly dis-
covered evidence, Bonner alleged that he was deprived of the
effective assistance of counsel.
For some reason not apparent from the record, the superior
court did not act on Bonner’s 1995 petition for two years. In
the intervening time, Congress passed AEDPA. AEDPA’s
one year statute of limitations began running on April 24, 1996,5
while Bonner was waiting for the superior court to act.
In 1997, apparently frustrated by the court’s delay, Bonner
re-filed the claims from his 1995 petition in a new document
that he entitled “request for a rehearing.” Although the supe-
rior court still had not ruled on his 1995 petition, the court
denied the 1997 petition for rehearing in a minute entry dated
February 25, 1997. It offered the following four reasons for
the denial: (1) the petition presented no legally cognizable
claim; (2) no new evidence suggested that there was a reason-
3
See 28 U.S.C. § 2244(d)(1).
4
By “mixed,” we mean that Bonner’s petition contained both claims that
were exhausted in state court and claims that were not.
5
28 U.S.C. § 2244(d)(1).
13910 BONNER v. CAREY
able probability that Bonner would have received a more
favorable result at trial had his counsel handled the case bet-
ter; (3) Bonner’s claims were either raised in his 1990 petition
or they could have been raised then, and there “[wa]s no rea-
son stated for any delay in this regard;” and (4) Bonner did
not verify his petition. The third reason given by the superior
court determines the outcome of this appeal.6
Two months after the superior court’s denial of his petition
for rehearing, on April 15, 1997, Bonner filed a petition in the
California Court of Appeal. That court denied his petition on
May 5, 1997 “for the reasons stated in the superior court’s
February 25, 1997 minute Order.” Approximately six months
later, Bonner filed a petition in the California Supreme Court.
That court denied his petition on May 27, 1998 without cita-
tion to authority. Accordingly, the superior court’s minute
entry is the only reasoned state court decision addressing
Bonner’s petition.
Bonner filed the federal petition that led to this appeal on
September 24, 1998. The Government moved to dismiss the
petition, pointing out that, absent tolling, AEDPA’s limita-
tions period had expired on April 24, 1997. The district court
concluded that Bonner was entitled to tolling while he “was
attempting to pursue his state remedies,” a period that began
when he filed his petition in the superior court in 1995 and
ended when the California Supreme Court denied his petition
on May 27, 1998. The district court also noted that,
“[t]hrough no fault on the petitioner’s part, the Superior Court
failed to rule on the [1995] petition” for nearly two years.
The district court nonetheless denied Bonner’s federal peti-
tion because it was “mixed,” after a confusing exchange in
6
The superior court ultimately denied Bonner’s 1995 petition in May
1997, stating that it did so for the reasons stated in its February 25, 1997
minute order denying the petition for rehearing. There is no explanation
in the record for the court’s late action.
BONNER v. CAREY 13911
which Bonner attempted to seek the stay and abeyance proce-
dure and the court may have misinterpreted his request. Bon-
ner then filed this appeal.
We deferred submission of Bonner’s appeal until the
Supreme Court ruled on Pliler v. Ford,7 sought further brief-
ing, and now conclude that Bonner is not entitled to statutory
tolling as the district court held.8 Accordingly, we vacate and
remand to allow the district court to determine if he is entitled
to equitable tolling.
II
Discussion
[1] Section 2244(d)(2) provides for tolling during the time
a “properly filed” state court petition is pending.9 “Properly
filed” means the petition’s “delivery and acceptance are in
compliance with the applicable laws and rules governing fil-
ings” in that state.10 In Pace v. DiGuglielmo,11 the United
States Supreme Court held that “[w]hen a postconviction peti-
tion is untimely under state law, that [is] the end of the matter
for purposes of § 2244(d)(2).”12
7
___ U.S. ___, 124 S. Ct. 2441 (2004).
8
Because we conclude that Bonner is not entitled to statutory tolling, we
do not reach the issue he raises on appeal: whether the district court erred
when it dismissed his petition as mixed.
9
28 U.S.C. § 2244(d)(2).
10
Artuz v. Bennett, 531 U.S. 4, 8 (2000). The Supreme Court has distin-
guished between “a condition to filing” — which must be satisfied to be
eligible for tolling under AEDPA — and “a condition to obtaining relief,”
which need not be satisfied to be eligible for tolling under AEDPA. Id. at
11. State timeliness rules are conditions to filing. Id. at 8.
11
___ U.S. ___, 125 S. Ct. 1807 (2005).
12
Id. at 1812 (second alteration in original) (internal quotation marks
omitted).
13912 BONNER v. CAREY
[2] In its order dated February 25, 1997, the California
Superior Court explained that it was denying Bonner’s peti-
tion because, among other reasons, Bonner had either made
the same claims in his 1990 petition or could have done so,
and that there “[wa]s no reason stated for any delay in this
regard.”13 Examining the court’s words against the backdrop
of California law regarding untimeliness, it is clear that the
court was denying Bonner’s petition as untimely.
[3] The superior court’s language tracks California’s
requirement that, to avoid the state’s untimeliness bar, a peti-
tioner bears the burden of establishing: (i) the absence of sub-
stantial delay, (ii) good cause for such delay, or (iii) that his
claims fall within one of four exceptions to such bar.14 In this
case, Bonner had waited over four years to file his second
petition. California courts have deemed shorter periods substan-
tial.15 Thus, Bonner had to establish good cause for his delay.16
When the court noted that Bonner had asserted no reason for
his delay, then, the court was explaining that he had not met
his burden of establishing good cause. Absent good cause, the
state’s untimeliness bar applied to him.17
13
We must determine what the superior court’s order means because
that was the last — and only — reasoned decision as to Bonner’s 1995
petition. See Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991); see also Sand-
gathe v. Maass, 314 F.3d 371, 377-78 nn. 4-5 (9th Cir. 2002) (where state
supreme court “incorporated court of appeals briefs,” and court of appeals
affirmed trial court’s denial without opinion, Ylst requires “looking
through the second level of mute decision as well as the first” (internal
quotation marks and citation omitted)). The California Court of Appeal
affirmed for the reasons given by the superior court. The California
Supreme Court summarily denied Bonner’s petition without citation to
any authority.
14
In re Gallego, 77 Cal. Rptr. 2d 132, 137 (Cal. 1998).
15
In re Sanders, 87 Cal. Rptr. 2d 899, 905 (Cal. 1999) (3 years);
Gallego, 77 Cal. Rptr. 2d at 134 (3 years, 9 months).
16
Id.
17
No one argues that Bonner falls into the other exceptions to the bar.
Id.
BONNER v. CAREY 13913
[4] The fact that California provides exceptions to its
timely filing requirement does not “prevent a late application
from being considered improperly filed.”18 Neither does the
fact that the superior court also denied Bonner’s petition on
the merits save his petition.19 Because the California courts
dismissed Bonner’s petition as untimely, his petition was not
“properly filed” under AEDPA. Accordingly, he is not enti-
tled to tolling under § 2244(d)(2).
We recognize the harshness of the result of our decision.
Because of the California Superior Court’s long delay in rul-
ing on his petition, Bonner lost more than 270 of the 365 days
that he had to file his federal petition. Pace, however,
expressly held that such a result — “a petitioner trying in
good faith to exhaust state remedies may litigate in state court
for years only to find out at the end that he was never ‘prop-
erly filed’ ” — did not justify a different rule.20
[5] We also acknowledge that Pace implicitly overruled
one (and perhaps two) of our prior holdings concerning
AEDPA’s statute of limitations. In Carey v. Saffold,21 we con-
cluded that the phrase “lack of diligence” in a California
18
Pace, 125 S. Ct. at 1811.
19
See Saffold v. Carey, 536 U.S. 214, 225-26 (2002) (holding that state
court alternative rulings did not make petition timely, and thus “properly
filed,” under state law).
20
125 S. Ct. at 1813. The Supreme Court further remarked that:
A prisoner . . . might avoid this predicament . . . by filing a “pro-
tective” petition in federal court and asking the federal court to
stay and abey the federal habeas proceedings until state remedies
are exhausted. A petitioner’s reasonable confusion about whether
a state filing would be timely will ordinarily constitute “good
cause” for him to file in federal court.
Id. (citation omitted). It is ironic indeed that the need for this complicated
procedure derives from AEDPA, a statute designed to “streamline and
simplify” the complicated habeas process. See Hohn v. United States, 524
U.S. 236, 265 (1998) (Scalia, J., dissenting).
21
312 F.3d 1031, 1035-36 (9th Cir. 2002).
13914 BONNER v. CAREY
Supreme Court order referred to the prisoner’s five-year delay
in initiating the state habeas process, not to his four and one-
half month delay in seeking review after the lower court
denied his petition.22 As a result, we held that Saffold’s peti-
tion was “properly filed” in the California Supreme Court and
that he was entitled to tolling of that four and one-half month
period.23 We so held because we determined that the initial
five-year delay in filing his petition was irrelevant to whether
his petition was “properly filed” under AEDPA because “Cal-
ifornia’s timeliness rule is not a ‘condition to filing.’ ”24 After
Pace, however, it is clear that “time limits, no matter their
form, are ‘filing’ conditions” for purposes of AEDPA.25 Thus,
it is clear that the five-year delay in Carey was relevant to our
analysis. Under Pace, if the petition was untimely under Cali-
fornia law, it was never properly filed. In such a situation,
§ 2244(d)(2) does not allow for tolling.
[6] Likewise, in Chavis v. LeMarque,26 we held that peti-
tions are “pending” for purposes of AEDPA while state courts
are considering them, even if they are ultimately denied for
“procedural reasons.”27 To the extent that we meant to include
untimeliness as a “procedural reason,” we were mistaken.
Under Pace, if a state court denies a petition as untimely,
none of the time before or during the court’s consideration of
that petition is statutorily tolled.
[7] Although we hold that Bonner’s federal petition was
untimely, we nonetheless remand this case to the district court
so that Bonner can argue his eligibility for equitable tolling,
as he has not yet had an adequate opportunity to do that. If the
22
Id.
23
Id. at 1036.
24
Id. at 1035.
25
125 S. Ct. at 1814 (emphasis added).
26
382 F.3d 921 (9th Cir. 2004), cert. granted, 125 S. Ct. 1969 (2005).
27
Id. at 925-26.
BONNER v. CAREY 13915
district court determines that Bonner is eligible for equitable
tolling, Bonner can then argue his eligibility for the stay and
abeyance procedure so he can exhaust his unexhausted claims
in state court.28
VACATED AND REMANDED.
28
See Rhines v. Weber, ___ U.S. ___, 125 S. Ct. 1528, 1535 (2005)
(“[I]f the petitioner had good cause for his failure to exhaust, his unex-
hausted claims are potentially meritorious, and there is no indication that
the petitioner engaged in intentionally dilatory litigation tactics,” then the
district court likely “should stay, rather than dismiss, the mixed petition.”).