Hemmerle v. Schriro

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

ROBERT HEMMERLE, 
Petitioner-Appellant, No. 06-16601
v. D.C. No.
DORA SCHRIRO; ATTORNEY  CV-04-00315-PHX-
GENERAL FOR THE STATE OF PGR
ARIZONA, OPINION
Respondents-Appellees.

Appeal from the United States District Court
for the District of Arizona
Paul G. Rosenblatt, District Judge, Presiding

Argued and Submitted
May 14, 2007—San Francisco, California

Filed July 19, 2007

Before: Cynthia Holcomb Hall, Diarmuid F. O’Scannlain,
and Sandra S. Ikuta, Circuit Judges.

Opinion by Judge O’Scannlain

8765
 HEMMERLE v. SCHRIRO 8769
COUNSEL

Michael Bernays, Phoenix, Arizona, argued the cause for the
petitioner-appellant. He also filed an opening brief and a reply
brief.

Alan L. Amman, Assistant Attorney General of Arizona,
Criminal Appeals Section, argued the cause for the
respondent-appellee and filed a brief. Also on the brief were
Terry Goddard, Attorney General of Arizona and Randall M.
Howe, Chief Counsel of the Arizona Criminal Appeals Sec-
tion.

OPINION

O’SCANNLAIN, Circuit Judge:

Once again, we are asked to decide whether a federal peti-
tion for writ of habeas corpus was properly dismissed as time-
barred because filed outside the Antiterrorism and Effective
Death Penalty Act’s one-year statute of limitations.

I

A

Robert Hemmerle was convicted after a jury trial of
second-degree murder and endangerment after running a red
light and killing another motorist while operating his vehicle
under the influence of alcohol. He was sentenced to serve
concurrent terms of 16 years on the second-degree murder
conviction and 27 months on the endangerment conviction.
Hemmerle filed a direct appeal in state court on November
20, 1997. He also filed a state post-conviction relief (“PCR”)
notice on November 21, 1997, in which he checked off a box
8770 HEMMERLE v. SCHRIRO
indicating that he was alleging ineffective assistance of his
trial counsel.1

Hemmerle’s conviction was affirmed by the Arizona Court
of Appeals on October 29, 1998. The main issue raised on
direct appeal was whether the trial court abused its discretion
by admitting into evidence the results of a blood-alcohol con-
tent test when the State consumed most of the blood sample
in its own testing procedures. Hemmerle chose not to appeal
to the Arizona Supreme Court; the mandate from the direct
appeal issued on December 4, 1998.

In his collateral PCR notice proceedings, Hemmerle was
granted numerous extensions within which to file a brief. A
final extension was asked for and granted by minute order
dated September 11, 1998. On December 1, 1998, because no
petition or other memoranda had been filed, Hemmerle’s PCR
notice was summarily dismissed. Hemmerle then filed a sec-
ond PCR notice on January 4, 1999 and later filed a “Memo-
randum in Support of Petition for Post-Conviction Relief” in
which he argued that his trial attorney, Joel Thompson, was
ineffective because he instructed him to testify falsely during
trial. Briefly stated, Hemmerle claimed that Thompson told
him to testify that he saw signs at Toolie’s Bar stating that the
bar would call a cab if a patron felt he was too intoxicated to
drive home. Hemmerle contended that this testimony back-
fired because the jury took his having seen the sign and hav-
ing failed to alert the bar that he was unable to drive as evi-
dence of extreme indifference to human life. In addition,
1
Although overlapping direct and collateral appeals are unusual, they
are allowed under Arizona rules. See Ariz. R. Crim. P. 32.4 (“In a non-
capital case, the notice must be filed within ninety days of the entry of
judgment and sentence or within thirty days of the order and mandate
affirming the judgment and sentence on direct appeal, whichever is the
later.”); Krone v. Hotham, 890 P.2d 1149 (Ariz. 1995); State v. Jones, 897
P.2d 734, 735 (Ariz. Ct. App. 1995) (rejecting argument that right to file
post-conviction relief petitions is suspended during the pendency of direct
appeal).
 HEMMERLE v. SCHRIRO 8771
Hemmerle alleged that Thompson was constitutionally inef-
fective because he failed to investigate and to present evi-
dence of mental illness (namely, Hemmerle’s alleged bipolar
disorder) to rebut the mens rea of the second-degree murder
charge.

The Superior Court of Arizona for Maricopa County
rejected outright Hemmerle’s claim of ineffective assistance
based upon failure to investigate and to present evidence of
mental illness. It found that relief on such a claim was fore-
closed by State v. Mott, 931 P.2d 1046 (Ariz. 1997).2 It
ordered an evidentiary hearing, however, on Hemmerle’s
claim that Thompson instructed him to lie on the witness
stand. After conducting this evidentiary hearing, the court
rejected Hemmerle’s argument, concluding that he could “not
show that the result of the proceeding would have been differ-
ent.” Hemmerle petitioned the Arizona Court of Appeals to
review this judgment, but on October 9, 2002, a panel of that
court issued an order denying review. Hemmerle next
appealed to the Arizona Supreme Court; on February 20,
2003, his petition for review was denied. The record was
returned to the Court of Appeals that same day. On March 19,
2003, the Court of Appeals sent to the Clerk of Maricopa
County Superior Court a certified copy of the order denying
review along with transcripts and other records.

B

On February 12, 2004, Hemmerle filed a petition for writ
of habeas corpus in federal district court under 28 U.S.C.
§ 2254. The petition contained two grounds for relief: (1) that
2
In Mott, the Arizona Supreme Court noted that the state legislature had
refused to recognize a diminished capacity defense and therefore held that
“Arizona does not allow evidence of a defendant’s mental disorder short
of insanity either as an affirmative defense or to negate the mens rea ele-
ment of a crime.” 931 P.2d at 1051. The Arizona Supreme Court further
rejected the defendant’s argument that this prohibition violated due pro-
cess. Id. (citing Fisher v. United States, 328 U.S. 463 (1946)).
8772 HEMMERLE v. SCHRIRO
Hemmerle’s Sixth, Fifth, and Fourteenth Amendment rights
to effective assistance of counsel were violated because his
attorney failed to raise his bi-polar disorder at trial; and (2)
that Hemmerle’s Sixth and Fourteenth Amendment rights to
effective assistance of counsel were violated because his
attorney advised him to testify falsely at trial. In its answer to
Hemmerle’s petition, the State argued that the habeas petition
was not filed within the one-year time limit set forth in the
Antiterrorism and Effective Death Penalty Act (“AEDPA”),
28 U.S.C. § 2244(d)(1). The district court allowed time for
Hemmerle to file a response.

After consideration of the petition and the various replies,
the magistrate judge recommended that Hemmerle’s petition
be dismissed in its entirety as untimely filed. The district
court agreed with the determination of the magistrate judge
and adopted his recommendations. The district court con-
cluded that direct review of Hemmerle’s conviction was final
for purposes of AEDPA on the date that his ability to file an
appeal to the Arizona Supreme Court expired and not on the
date that the mandate issued. It also concluded that a 33-day
gap — from December 1, 1998 until January 4, 1999 —
between Hemmerle’s first and second state PCR proceedings
was not tolled because he failed to raise a discernable claim
in his first petition to which the second petition could relate
back. Finally, the district court concluded that Hemmerle’s
second PCR petition became final on February 20, 2003, the
date the Arizona Supreme Court denied review. Accordingly,
356 days elapsed between the denial of his second PCR and
the February 12, 2004 filing of his § 2254 petition. With the
addition of the 33 days when no properly filed application for
state post-conviction relief was pending, the district court
concluded that Hemmerle’s petition was untimely by 24 days.

The district court granted a certificate of appealability on
its procedural rulings and Hemmerle filed a timely notice of
appeal.
 HEMMERLE v. SCHRIRO 8773
II

A

Hemmerle first challenges the district court’s conclusion
that his direct appeal became final on the date that his ability
to seek review in the Arizona Supreme Court elapsed. He
contends that the proper date for finality is the date that the
mandate issued, here December 4, 1998. As support, he cites
our decision in Bunney v. Mitchell, 262 F.3d 973 (9th Cir.
2001). The State, in contrast, argues that the limitations period
runs from the date in which Hemmerle’s time for seeking
review of the Court of Appeals’ decision with the Arizona
Supreme Court expired.

[1] The relevant portion of the federal habeas statute pro-
vides:

A 1-year period of limitation shall apply to an appli-
cation for a writ of habeas corpus by a person in cus-
tody pursuant to the judgment of a State court. The
limitation period shall run from the latest of . . . the
date on which the judgment became final by the con-
clusion of direct review or the expiration of the time
for seeking such review.

28 U.S.C. § 2244(d)(1)(A).

We had occasion to interpret this text in a similar setting in
Wixom v. Washington, 264 F.3d 894 (9th Cir. 2001). In
Wixom, the district court held that the defendant’s conviction
was “final” upon issuance of the mandate but found that his
state post-conviction petition was not properly filed and there-
fore did not toll the statute of limitations. It dismissed his
petition as time-barred. Id. at 896. We affirmed the dismissal,
but on different grounds. We disagreed with the district court
that it was the issuance of the mandate that rendered Wixom’s
conviction final for AEDPA purposes. Id. at 897. We noted
8774 HEMMERLE v. SCHRIRO
that “a mandate is not a decision terminating review” and con-
cluded that “because the denial of his appeal is a decision ter-
minating review, and Wixom did not appeal this denial to the
Washington Supreme Court, we conclude that it marks ‘the
conclusion of direct review.’ ” Id. at 897-98. In an important
footnote, we rejected an argument identical to that made here
by Hemmerle. We explained “[t]hat the Washington courts
have interpreted the term ‘final’ in § 10.73.090 to mean the
date at which the mandate issues is their prerogative. We, as
stated above, are constrained by Congress’ definition of the
term.” Id. at 898 n.4; see also Clay v. United States, 537 U.S.
522, 531 (2003) (“The words ‘by the conclusion of direct
review or the expiration of the time for seeking such review’
make it clear that finality for the purpose of § 2244(d)(1)(A)
is to be determined by reference to a uniform federal rule.”).

[2] We applied the rule of Wixom again in White v. Klitzkie,
281 F.3d 920 (9th Cir. 2002), in interpreting § 2244(d)(2).
There, “White argue[d] that the Supreme Court of Guam’s
decision was not final until the mandate was entered on Janu-
ary 26, 1999.” Id. at 924 n.4. We rejected that argument, cit-
ing Wixom and noting that “it is the decision of the state
appellate court, rather than the ministerial act of entry of the
mandate, that signals the conclusion of review.” Id.

[3] Applying the plain statutory text, our decisions in
Wixom and White, and the applicable Arizona rules, it is clear
that Hemmerle’s direct appeal was final upon the expiration
of the time for seeking review of the Court of Appeals deci-
sion in the Arizona Supreme Court. Cf. Clay, 537 U.S. at 527
(“Finality attaches when this Court affirms a conviction on
the merits on direct review or denies a petition for a writ of
certiorari, or when the time for filing a certiorari petition
expires.”). Hemmerle’s time for seeking review expired 30
days after the Arizona Court of Appeals affirmed his convic-
tion on October 29, 1998. See Ariz. R. Crim. P. 31.19(a)
(“Within 30 days after the filing of a decision . . . any party
 HEMMERLE v. SCHRIRO 8775
may file with the clerk of the Court of Appeals a petition for
review by the Supreme Court.”).

Nothing that we said in Bunney v. Mitchell, 262 F.3d at
973, is to the contrary. Bunney was interpreting 28 U.S.C.
§ 2244(d)(2), which defines when an application for state col-
lateral relief is “pending.” The Supreme Court instructed in
Carey v. Saffold, 536 U.S. 214 (2002), that a collateral relief
application is pending “until the application has achieved final
resolution through the State’s post-conviction procedures.” Id.
at 220. Bunney thus reached the unremarkable conclusion that
because under the applicable rule in California, “a denial of
a habeas petition within the California Supreme Court’s origi-
nal jurisdiction is not final for 30 days,” the application
remained “pending.” 262 F.3d at 974 (citing People v. Car-
rington, 40 Cal.App.3d 647, 650 (1974)).

[4] Here, we are not asked to determine whether an applica-
tion for relief is “pending” under § 2244(d)(2); instead, we
must decide when direct review was final under
§ 2244(d)(1)(A). See Clay, 537 U.S. at 531 (“The words ‘by
the conclusion of direct review or the expiration of the time
for seeking such review’ make it clear that finality for the pur-
pose of § 2244(d)(1)(A) is to be determined by reference to
a uniform federal rule.”). Hemmerle filed no motion for
reconsideration in the Court of Appeals, nor did he file a peti-
tion for review with the Arizona Supreme Court.3 Under
§ 2244(d)(1), Hemmerle’s direct appeal was final on Novem-
ber 29, 1998, the date that he allowed his time for seeking
review in the Supreme Court to expire.
3
Under Ariz. R. Crim. P. 32.18(b), a motion for reconsideration must be
filed within 15 days of the decision. Once that time period expired for
Hemmerle, his only available recourse was to file a petition for review
with the Supreme Court. He chose not to do so.
8776 HEMMERLE v. SCHRIRO
B

[5] Hemmerle’s first PCR notice was not summarily dis-
missed, however, until December 1, 1998. “The time during
which a properly filed application for State post-conviction or
other collateral review with respect to the pertinent judgment
or claim is pending shall not be counted toward any period of
limitation under this subsection.” 28 U.S.C. § 2244(d)(2). In
Isley v. Arizona Department of Corrections, 383 F.3d 1054
(9th Cir. 2004), we held that in Arizona, post-conviction “pro-
ceedings begin with the filing of the Notice.” Id. at 1055-56.
Thus, where notice is filed in conformity with the pertinent
Arizona statutory provisions and contains a specific prayer for
relief in the form of a request for a new trial, “it is sufficient
to toll the AEDPA statute of limitations.” Id. at 1056. We
conclude that Hemmerle’s first PCR notice, which under Isley
was “properly filed,” tolled AEDPA’s one-year statute of lim-
itations at least until it was summarily dismissed on Decem-
ber 1, 1998.4

[6] The crucial question, however, is whether Hemmerle
also is entitled to tolling for the period from the December 1,
1998, summary dismissal of his first PCR notice until the fil-
ing of his second PCR notice on January 4, 1999.5 The “gap”
between December 1, 1998, and January 4, 1998, is 33 days.
In this circuit, we apply a two-part test to determine whether
the “gap” should be tolled. See King v. Roe, 340 F.3d 821,
823 (9th Cir. 2003). “First, we ask whether the petitioner’s
4
Our recent decision in Summers v. Schriro, 481 F.3d 710 (9th Cir.
2007) holds that a Rule 32 “of-right” proceeding should be treated as
direct and not collateral review for purposes of AEDPA’s statute of limita-
tions. Unlike the defendant in Summers, however, Hemmerle did not enter
a guilty plea which would have forfeited his right to direct appeal. Hem-
merle was convicted after a jury trial and was entitled to, and had, a full
round of direct review. Thus, his Rule 32 proceedings were not “of right”
and are treated as collateral review for AEDPA purposes.
5
This is known as either “gap tolling” or “interval tolling.” See, e.g.,
Gaston v. Palmer, 447 F.3d 1165, 1166 (9th Cir. 2006).
 HEMMERLE v. SCHRIRO 8777
subsequent petitions are limited to an elaboration of the facts
relating to the claims in the first petition. If not, these peti-
tions constitute a ‘new round’ and the gap between the rounds
is not tolled.” Id. (citing Biggs v. Duncan, 339 F.3d 1045 (9th
Cir. 2003)). But, if the subsequent petition “simply attempted
to correct the deficiencies” in the prior petition, we will con-
strue the new petitions as part of the first “full round” of col-
lateral review. Id. (citing Carey v. Saffold, 536 U.S. 214, 222
(2002)). In such circumstance, we then proceed to ask
whether the petition was denied on the merits or deemed
untimely. If the petition was denied on the merits, we will toll
the time period between the two properly-filed petitions; if it
was deemed untimely, we will not. Id.

Hemmerle urges that the 33-day gap should be tolled
because his second PCR petition related back to the “claims”
raised in his first notice and his second petition was denied on
the merits. He contends that because he made clear by check-
ing a box in his first PCR notice that he was alleging a claim
of ineffective assistance of counsel, his second petition, which
raised claims of ineffective assistance based upon counsel’s
failure to investigate his bi-polar disorder and counsel’s
instruction to testify falsely, was necessarily related to his ini-
tial PCR notice. He also points out that he annotated on his
initial PCR that his ineffective assistance of counsel claim
related to Joel Thompson.

[7] We are not persuaded that Hemmerle is entitled to “gap
tolling” under the King framework. As we explained in Isley,
the purpose of a PCR notice is not to set forth the facts or
legal citations regarding a claim, but is to make a simple
request for relief from judgment, in order to alert the state
court that “it might need to appoint counsel.” 383 F.3d at
1055. Hemmerle’s first PCR notice, unaccompanied by any
supporting documentation or factual elaboration, was insuffi-
cient to raise a claim to which the second petition could relate
back. Although Hemmerle’s petition may have been “properly
filed” under our decision in Isley, that says nothing about the
8778 HEMMERLE v. SCHRIRO
merits of the claim or claims that are raised in the petition.
See Artuz v. Bennett, 531 U.S. 4, 8-9 (2000) (distinguishing
between the application, which may or may not have been
properly filed, and the claims raised therein). Because ineffec-
tive assistance claims are not fungible, but are instead highly
fact-dependent, some baseline explication of the facts relating
to an ineffective assistance claim is required in the original
petition to allow the court to apply the King v. Roe frame-
work.

[8] Indeed, we have recognized in the context of exhaustion
that all operative facts to an ineffective assistance claim must
be presented to the state courts in order for a petitioner to
exhaust his remedies. See Lyons v. Crawford, 232 F.3d 666,
670 (9th Cir. 2000) (holding that petitioner’s statement of
ineffective assistance of counsel “lacked the specificity and
explicitness required for the purported federal constitutional
dimension of such claims to have been ‘fairly presented’ to
the Nevada courts under our precedent”), as modified by 247
F.3d 904 (9th Cir. 2001); see also Picard v. Connor, 404 U.S.
270, 278 (1971) (exhaustion requirement satisfied where all
operative facts giving rise to asserted constitutional principle
were raised in state court). Similarly in this context, in order
for us to apply the King framework and to conclude that the
second petition is “limited to an elaboration of the facts relat-
ing to the claims in the first petition,” 340 F.3d at 823, we
must know the nature of the original claims and at least some
of the facts relating to those claims. The vague assertion of
ineffective assistance in Hemmerle’s first PCR notice, where
it was never further developed by a petition or substantive
memorandum, is insufficient to raise a “claim” to which the
King framework can be applied.

[9] We recognize that interval tolling, as defined by King,
will often involve an incomplete or insufficient first petition
that is corrected or embellished by a subsequent petition, and
our pleading standard is not meant to eviscerate interval toll-
ing. But in Arizona, the framework for collateral review
 HEMMERLE v. SCHRIRO 8779
requires the filing of a preliminary notice to begin the pro-
ceedings; it also presupposes that an actual petition will be
forthcoming. In contrast to King, in this case Hemmerle’s first
round of post-conviction relief was dismissed not because his
petition was incomplete, but because he had failed to include
a petition at all. Indeed, his notice form alone was not even
construed as a pleading by the state court. Therefore, the sec-
ond petition did not “correct” or “remediate deficiencies” in
the first petition, see id.; rather, it stated the claims for the
first time.6

This conclusion is buttressed by the fact that the state supe-
rior court deemed Hemmerle’s second PCR not a successive
pleading. It concluded that Hemmerle’s second PCR proceed-
ing could go forward because she found “that these issues [the
ineffective assistance claims raised in the second petition]
have not been raised in any Petition or in the appeal. Thus
Petitioner is not precluded from raising these issues.” (empha-
sis added.) In effect, the superior court determined that Hem-
merle had not raised these claims in his first PCR notice
because he never put forth the facts relating to Joel Thomp-
son’s alleged ineffective assistance.

[10] In sum, because Hemmerle failed to allege with any
specificity the nature of his ineffective assistance claims in his
first PCR notice, the second PCR petition cannot “relate
back” to the first petition. Gap tolling is therefore not appro-
6
Hemmerle argues that he sufficiently stated a claim by hand-writing
“Joel Thompson” on his first PCR notice, because he was essentially
restating the arguments he made in his motion for a new trial. Although
we construe pro se filings broadly, reading the first notice form to incorpo-
rate arguments made in the earlier motion, when the motion is not refer-
enced or cited in the notice form itself, would create a broad rule of
incorporation that the law does not support. Cf. Baldwin v. Reese, 541 U.S.
27, 33 (2004) (“[O]rdinarily a state prisoner does not ‘fairly present’ a
claim to a state court if that court must read beyond a petition or a brief
(or a similar document) that does not alert it to the presence of a federal
claim in order to find material . . . that does so.”).
8780 HEMMERLE v. SCHRIRO
priate and the 33 days between the summary dismissal of
Hemmerle’s first PCR petition and the filing of his second
PCR notice must be counted towards § 2241(d)(1)’s one-year
filing deadline.

C

Finally, we must determine the date on which Hemmerle’s
second PCR proceedings became final. Again, Hemmerle
contends that the issuance of the mandate is the critical date;
he further contends that the Clerk of the Arizona Court of
Appeals’ March 19, 2003, letter mailing a certified copy of
the Supreme Court’s order denying review is such a mandate.
The State disagrees, instead arguing that the decision termi-
nating review, in this case the February 20, 2003, denial of the
petition by the Supreme Court, restarted the AEDPA limita-
tions clock.

[11] The Supreme Court has held that an application for
state collateral review “is pending as long as the ordinary state
collateral review process is ‘in continuance’ — i.e., ‘until the
completion of’ that process. In other words, until the applica-
tion has achieved final resolution through the State’s post-
conviction procedures, by definition it remains ‘pending.’ ”
Carey, 536 U.S. at 219-20. In Arizona, collateral proceedings
are governed by Arizona Rule of Criminal Procedure 32. Rule
32.9(h) states that “[w]hen the matter is determined, the clerk
of the appellate court shall return the record to the appropriate
trial court for retention according to law.” This function,
which was performed on March 19, 2003, by the Clerk of the
Court of Appeals, is not equivalent to the issuance of the man-
date. Indeed, there is no requirement that the appeals court
wait a certain amount of time before sending the record back.
The only guidance from Rule 32.9(h) is “when the matter is
determined.”

[12] It is clear to us that the collateral proceeding “was
determined” on February 20, 2003, when the Arizona
 HEMMERLE v. SCHRIRO 8781
Supreme Court denied Hemmerle’s petition for review.7
Again, nothing in Bunney compels a contrary result. The Cali-
fornia rule in Bunney provided that “[a] decision of the
Supreme Court becomes final 30 days after filing.” 262 F.3d
at 974. But Arizona’s Rule 32.9(h) governing collateral
review does not delay the judgment in this way; instead, it
only provides for a ministerial function in the state appellate
court that when the “matter is determined,” the record should
be returned to the trial court. See White, 281 F.3d at 923 &
924 n.4 (rejecting an identical argument and concluding that
the Supreme Court of Guam’s denial of White’s habeas peti-
tion “ended statutory tolling of the statute of limitations under
§ 2244(d)(2), and the one-year statute of limitations began to
run”).

[13] Here, the matter was determined by the Arizona
Supreme Court on February 20, 2003, when it denied review.
There was nothing left for it to do and it thus returned the
record to the appeals court. The subsequent March 19, 2003,
letter from the clerk of the court of appeals was not a man-
date, but instead was the performance of a ministerial function
of returning the record to the trial court. We conclude that
after the February 20, 2003, denial by the Arizona Supreme
Court, nothing remained “pending” for purposes of
§ 2244(d)(2). Accordingly, the statute of limitations set forth
in § 2244(d)(1) began running again on this date.

III

[14] We are left only to calculate the amount of time that
elapsed on Hemmerle’s one-year statute of limitations. From
7
That same day a letter was sent from the Clerk of the Arizona Supreme
Court indicating that Hemmerle’s petition for review had been denied. The
letter, which announced the decision to deny review, was sent to all parties
involved, including both Hemmerle and his counsel. That letter confirms
our view that there was nothing left to be determined by the Arizona
Supreme Court.
8782 HEMMERLE v. SCHRIRO
December 1, 1998, to January 4, 1999, 33 days ran off of the
clock. From February 20, 2003, until his § 2254 petition was
filed on February 12, 2004, 356 days elapsed. We must there-
fore conclude that because a total of 389 days elapsed, Hem-
merle’s petition was not timely under 28 U.S.C. § 2244(d)(1).
The decision of the district court is

AFFIRMED.