FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARTIN LEYVA VALDEZ, JR., No. 16-56845
Petitioner-Appellant,
D.C. No.
v. 5:16-cv-00567-
VAP-DTB
W. L. MONTGOMERY, Acting Warden,
Respondent-Appellee. OPINION
Appeal from the United States District Court
for the Central District of California
Virginia A. Phillips, Chief District Judge, Presiding
Submitted February 5, 2019 *
Pasadena, California
Filed March 14, 2019
Before: Ronald M. Gould, Jacqueline H. Nguyen, and
John B. Owens, Circuit Judges.
Opinion by Judge Gould
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2 VALDEZ V. MONTGOMERY
SUMMARY **
Habeas Corpus
The panel affirmed the district court’s dismissal of
California state prisoner Martin Leyva Valdez, Jr.’s federal
habeas petition as untimely under the Antiterrorism and
Effective Death Penalty Act.
The parties agreed that the petition was untimely unless
the statute of limitations was tolled from May 15, 2014—
when the California Superior Court denied Valdez’s first
state habeas petition—until April 29, 2015—when Valdez
filed his second state habeas petition in the California Court
of Appeal.
Because the question of whether Valdez’s second state
habeas petition was timely filed in the Court of Appeal is an
entirely distinct issue from whether his habeas petition in the
Superior Court was timely filed, the panel held that the “look
through” doctrine cannot answer whether the second state
habeas petition was timely.
The panel held that Valdez is not entitled to statutory
tolling. Because Valdez filed his second state habeas
petition before the California Supreme Court decided People
v. Elizalde, 351 P.3d 1010 (Cal. 2015), the panel rejected his
contention that he can establish good cause for the delay by
waiting until Elizalde was decided. The panel likewise
rejected Valdez’s contention that the size of the state-court
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
VALDEZ V. MONTGOMERY 3
record and complexity of the case renders his delay
reasonable and establishes good cause, where Valdez offered
no explanation for why he could timely file his first petition
but not his second.
The panel concluded that the district court did not err by
not ordering the State to respond and lodge the state-court
record.
COUNSEL
Stephanie M. Adraktas, Berkeley, California, for Petitioner-
Appellant.
Xavier Becerra, Attorney General of California; Julie L.
Garland, Senior Assistant Attorney General; Robin
Urbanski, Supervising Deputy Attorney General; Sharon L.
Rhodes, Deputy Attorney General; Vincent P. LaPietra,
Deputy Attorney General; Office of the California Attorney
General, San Diego, California; for Respondent-Appellee.
OPINION
GOULD, Circuit Judge:
We once again consider whether a California-state
prisoner is entitled to statutory tolling under the
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”). Because we hold that Petitioner-Appellant
Martin Valdez is not, we affirm the district court’s dismissal
of Valdez’s federal habeas petition as untimely.
4 VALDEZ V. MONTGOMERY
I
Over the course of two jury trials, Valdez was convicted
of murder, attempted murder, assault with a firearm, and
robbery. People v. Valdez, No. E053309, 2013 WL
1770856, at *1 (Cal. Ct. App., Apr. 25, 2013) (unpublished).
The trial court sentenced Valdez to life without the
possibility of parole, plus seventy years to life, plus nine
years. Id. Valdez appealed his conviction to the California
Court of Appeal, which affirmed. Id. at *2. The California
Supreme Court then denied Valdez’s petition for review on
July 31, 2013.
Valdez filed his first state habeas petition in California
Superior Court on April 10, 2014. The court denied that
petition on May 15, 2014. Almost one year later, in April
2015, Valdez filed his second state petition in the California
Court of Appeal, asserting the same claims. 1 The court
denied that petition without explanation. Valdez then filed
his third state petition in the California Supreme Court on
June 10, 2015, again raising the same claims. The court
denied that petition without explanation. 2
1
California has a unique postconviction review system. Rather than
appealing adverse decisions, prisoners must file a new, original habeas
petition at each court level. In practice, however, California’s system
operates like a normal appellate system, and the Supreme Court and this
court treat it as analogous to a normal appellate system. See Evans v.
Chavis, 546 U.S. 189, 192–93 (2006); Carey v. Saffold, 536 U.S. 214,
221–25 (2002); Curiel v. Miller, 830 F.3d 864, 870 n.3 (9th Cir. 2016)
(en banc).
2
Valdez also filed a second round of state habeas petitions. Those
petitions are irrelevant to this appeal, except as briefly discussed below.
VALDEZ V. MONTGOMERY 5
Valdez constructively filed his current federal petition
for writ of habeas corpus in the district court on March 1,
2016, raising the same claims he had raised in the state
proceedings. After an initial review, the district court
ordered Valdez to show cause why his petition should not be
dismissed as untimely. Valdez responded that he is entitled
to tolling because he was waiting for the California Supreme
Court to decide People v. Elizalde, 351 P.3d 1010 (Cal.
2015), a case highly relevant to one of Valdez’s claims. 3
Valdez also argued that tolling applies because his case is
complex: it involved “two trials, over 6,000 pages of
transcripts, and . . . the prosecution sought the death
penalty.”
The Magistrate Judge was not persuaded and
recommended that the district court dismiss Valdez’s
petition as untimely. Valdez objected to the magistrate’s
findings and recommendations, but the district court adopted
them and dismissed Valdez’s petition.
Valdez filed a timely notice of appeal. We granted
Valdez a Certificate of Appealability and appointed counsel.
On appeal, Valdez contends that he is entitled to statutory
tolling. 4 In the alternative, he contends that we should
3
The State concedes Elizalde is relevant.
4
The district court held that Valdez is not entitled to equitable
tolling. Valdez does not challenge that holding on appeal. Any
challenge is therefore waived. See, e.g., Bohmker v. Oregon, 903 F.3d
1029, 1040 n.6 (9th Cir. 2018).
6 VALDEZ V. MONTGOMERY
remand the case to the district court for further factual
development. 5
II
Because Valdez’s conviction became final and he filed
his federal habeas petition after the enactment of AEDPA,
AEDPA’s one-year statute of limitations applies. See
Campbell v. Henry, 614 F.3d 1056, 1058 (9th Cir. 2010).
We review de novo the district court’s dismissal of Valdez’s
federal habeas petition as untimely. Id.
III
AEDPA “affords a state prisoner one year from the end
of the direct review process in state court to apply in federal
court for a writ of habeas corpus . . . .” Campbell, 614 F.3d
at 1058. AEDPA’s statute of limitations is tolled, however,
while a “properly filed” state habeas petition is pending in
state court. 28 U.S.C. § 2244(d)(2). “A state habeas petition
is ‘pending’ as long as the ordinary state collateral review
process continues.” Trigueros v. Adams, 658 F.3d 983, 988
(9th Cir. 2011) (citing Carey v. Saffold, 536 U.S. 214, 219–
20 (2002)).
We have previously held that if a California prisoner
timely files his or her initial state habeas petition, AEDPA’s
statute of limitations is tolled while the state court considers
the petition. See, e.g., Velasquez v. Kirkland, 639 F.3d 964,
967 (9th Cir. 2011). In California, a state habeas petition is
5
Valdez also contends that we should hold this case in abeyance
pending the California Supreme Court’s response to the question we
certified in Robinson v. Lewis, 795 F.3d 926 (9th Cir. 2015). We find it
unnecessary to do so. We can, and do, resolve this appeal based on
current precedent.
VALDEZ V. MONTGOMERY 7
“timely if filed within a ‘reasonable time.’” Evans v. Chavis,
546 U.S. 189, 192 (2006) (quoting In re Harris, 855 P.2d
391, 398 n.7 (Cal. 1993)). If the state court denies that
petition, then as long as the prisoner timely files another
petition in a higher court, AEDPA’s statute of limitations is
tolled for “the days between (1) the time the lower state court
reached an adverse decision, and (2) the day [the prisoner]
filed a petition in the higher state court.” Id. at 193; see also
Saffold, 536 U.S. at 221–25. This is often referred to as
“gap” tolling.
But if a California prisoner does not timely file his or her
first state habeas petition, then the prisoner is not entitled to
tolling. See, e.g., Bonner v. Carey, 425 F.3d 1145, 1148–49
(9th Cir. 2005), amended by 439 F.3d 993 (9th Cir. 2006).
Similarly, if a prisoner timely files his or her first state
habeas petition but does not timely file a second petition,
then the prisoner is not entitled to tolling for the period
following the denial of the first petition. See, e.g.,
Velasquez, 639 F.3d at 968 (prisoner was not entitled to
statutory tolling because he waited 91 days after denial of his
first state habeas petition to file his second, without
explanation); Chaffer v. Prosper, 592 F.3d 1046, 1048 (9th
Cir. 2010) (per curiam) (prisoner was not entitled to statutory
tolling because he waited 115 days after denial of his first
state habeas petition to file his second, without explanation).
The parties agree that unless the statute of limitations
was tolled here from May 15, 2014—when the California
Superior Court denied Valdez’s first state habeas petition—
until April 29, 2015—when Valdez filed his second state
habeas petition in the California Court of Appeal—Valdez’s
federal habeas petition was untimely. Valdez “bears the
burden of proving that the statute of limitation was tolled.”
Banjo v. Ayers, 614 F.3d 964, 967 (9th Cir. 2010). He makes
8 VALDEZ V. MONTGOMERY
two contentions as to why he is entitled to tolling. We
address, and reject, both.
A
Valdez first contends that, because the California
Superior Court held that his first state habeas petition was
timely, and the California Court of Appeal denied his second
state habeas petition without explanation, 6 under the “look
through” doctrine, we should presume that the Court of
Appeal adopted the Superior Court’s reasoning and held that
Valdez’s second state habeas petition was timely.
The “look through” doctrine provides that “[w]hen at
least one state court has rendered a reasoned decision, but
the last state court to reject a prisoner’s claim issues an order
‘whose text or accompanying opinion does not disclose the
reason for the judgment,’ we ‘look through’ the mute
decision and presume the higher court agreed with and
adopted the reasons given by the lower court.” Curiel v.
Miller, 830 F.3d 864, 870 (9th Cir. 2016) (en banc) (quoting
Ylst v. Nunnemaker, 501 U.S. 797, 802–06 (1991)). That
doctrine has universally been applied in cases where the
court rendering a reasoned decision and a later court making
a summary determination were facing precisely the same
issue. See, e.g., Ylst, 501 U.S. at 803 (“Where there has been
one reasoned state judgment rejecting a federal claim, later
unexplained orders upholding that judgment or rejecting the
same claim rest upon the same ground.”); Bonner, 425 F.3d
at 1148–49, 1148 n.13 (looking through unexplained
decisions of the California Court of Appeal and California
Supreme Court to a California Superior Court decision
6
Its decision states: “The petition for writ of habeas corpus is
DENIED.”
VALDEZ V. MONTGOMERY 9
holding that a petition was untimely to conclude that the
petition was untimely and the prisoner was not entitled to
statutory tolling); Casey v. Moore, 386 F.3d 896, 918 n.23
(2004) (“We cannot ‘look through’ to see what the state
appeals court did on the merits of Casey’s case, because the
merits of the federal issue were not raised until Casey
appealed.”).
For that reason, the “look through” doctrine does not
provide a basis for holding that Valdez’s second state habeas
petition was timely. Whether Valdez’s second state habeas
petition was timely filed in the Court of Appeal is a different
and entirely distinct issue from whether his habeas petition
in the Superior Court was timely filed. Cf. Kernan v.
Hinojosa, 136 S. Ct. 1603, 1606 (2016) (per curiam) (“look
through” doctrine inapplicable where “[i]mproper venue
could not possibly have been a ground for the high court’s
summary denial of Hinojosa’s claim”). Specifically, the
question here is whether Valdez timely filed his second state
habeas petition in the Court of Appeal “within a ‘reasonable
time’” following the Superior Court’s “adverse
determination.” Chavis, 546 U.S. at 191, 192–93 (quoting
In re Harris, 855 P.2d at 398 n.7). The question is not
whether Valdez’s first state habeas petition was timely—a
question the “look through” doctrine could answer. See
Bonner, 425 F.3d at 1148–49, 1148 n.13. Because the “look
through” doctrine cannot answer whether Valdez’s second
state habeas petition was timely, we address that question
ourselves.
B
If a California court has held that a state habeas petition
was timely or untimely, we are bound by that decision. See
Robinson v. Lewis, 795 F.3d 926, 929 (9th Cir. 2015) (“If a
California court states it has dismissed a state habeas petition
10 VALDEZ V. MONTGOMERY
because the petition was untimely, ‘that would be the end of
the matter.’” (quoting Saffold, 536 U.S. at 226)); Trigueros,
658 F.3d at 990 (“[W]e rely on the California Supreme
Court’s orders practice explained in Robbins and conclude
that it considered Trigueros’s petition timely because the
California Supreme Court had the timeliness question before
it, and did not cite to cases involving a timeliness procedural
bar.”). Here, the California Court of Appeal dismissed
Valdez’s second state habeas petition without explanation.
That decision does not provide a basis for concluding that
the petition was timely. See Chavis, 546 U.S. at 197 (“If the
appearance of the words ‘on the merits’ does not
automatically warrant a holding that the filing was timely,
the absence of those words could not automatically warrant
a holding that the filing was timely.” (emphasis in original));
Curiel, 830 F.3d at 871 (“The Supreme Court has
admonished us in the past not to assume that a California
court found a state habeas petition to be timely from the
court’s silence on the question.”).
Instead, we “must . . . examine the delay . . . and
determine what the state courts would have held in respect
to timeliness.” Chavis, 546 U.S. at 198. The question is
whether Valdez filed his second state habeas petition “within
a ‘reasonable time.’” Id. at 192 (quoting In re Harris, 855
P.2d at 398 n.7). To answer that question, the U.S. Supreme
Court has instructed that we reference the “‘short period[s]
of time,’ 30 to 60 days, that most States provide for filing an
appeal.” Id. at 201 (alteration in original) (quoting Saffold,
536 U.S. at 219). Heeding that instruction, we have
“indicated that the Supreme Court’s 60-day limit is the
‘benchmark’ from which we will not depart without a
showing of good cause,” and we have held that unexplained
delays of 81, 101, and 115 days are unreasonable. Robinson,
795 F.3d at 930–31.
VALDEZ V. MONTGOMERY 11
Here, the California Superior Court denied Valdez’s first
state habeas petition on May 15, 2014. Valdez then filed his
second state habeas petition on April 29, 2015. Because
Valdez waited almost one year to file his second state
petition (the gap was about two weeks short of a year), it was
untimely under our decisions unless Valdez can establish
good cause. See Robinson, 795 F.3d at 929 (“California
courts allow a longer delay if the petitioner demonstrates
good cause.” (citing In re Robbins, 959 P.2d 311, 317 (Cal.
1998)).
Valdez presses two arguments on this point. First, he
contends that he waited to file his second state habeas
petition until the California Supreme Court decided Elizalde,
which establishes good cause. We reject that contention.
Valdez filed his second state habeas petition before the
California Supreme Court decided Elizalde, “so waiting
until [Elizalde] was decided does not explain the delay.”
Waldrip v. Hall, 548 F.3d 729, 737 (9th Cir. 2008). 7 In re
Lucero, 132 Cal. Rptr. 3d 499, 503–04 (Ct. App. 2011)—on
which Valdez relies—is inapposite. Unlike the prisoner
there, Valdez did not wait to file his second state habeas
petition until after a new decision; he filed it before.
In the alternative, Valdez claims that his delay was
reasonable because of the size of the state-court record and
complexity of the case. This contention is likewise
insufficient to establish good cause. Valdez timely filed his
first state habeas petition. That petition raised the same
claims he then raised in his second state petition. He has
7
Valdez makes much of the fact that he filed a second round of
habeas petitions based on Elizalde, asserting that doing so demonstrates
his diligence. But that assertion does not explain why Valdez filed his
second state habeas petition before Elizalde was decided.
12 VALDEZ V. MONTGOMERY
offered no explanation for why he could timely file his first
petition but not his second. See Velasquez, 639 F.3d at 968
(“[E]ach of Velasquez’s habeas petitions is nearly identical
to the petition that came before it. It is not reasonable that
Velasquez’s counsel would need excess time essentially to
re-file an already-written brief.”).
In summary, the district court correctly held that Valdez
is not entitled to statutory tolling.
IV
We next address Valdez’s contention that the district
court should not have dismissed his federal habeas petition
without requiring the State to respond and lodge the state-
court record. Valdez contends that the district court could
not determine whether his state habeas petitions were timely
filed absent the state-court record.
A district court may summarily dismiss a federal habeas
corpus petition sua sponte if “it plainly appears from the
petition and any attached exhibits that the petitioner is not
entitled to relief . . . .” Rule 4 of the Rules Governing Section
2254 Cases. A district court should do so, however, only
after “provid[ing] the petitioner with adequate notice and an
opportunity to respond.” Herbst v. Cook, 260 F.3d 1039,
1043 (9th Cir. 2001). Moreover, because “federal habeas
courts” have a duty to “independently [review] the basis for
the state court’s decision,” a district court must “obtain and
review the relevant portions of the state court record,” or
hold an evidentiary hearing, as necessary to discharge its
duty. Nasby v. McDaniel, 853 F.3d 1049, 1053 (9th Cir.
2017).
Valdez, in his federal habeas petition, listed the date the
California Supreme Court denied his petition for review on
VALDEZ V. MONTGOMERY 13
direct appeal, the dates he filed his state habeas petitions, and
the dates the state courts denied those petitions. The district
court, after ordering Valdez to show cause and thereby
providing Valdez “adequate notice and an opportunity to
respond,” Herbst, 260 F.3d at 1043, had Valdez’s
explanations for why he delayed in filing his second state
habeas petition. Finally, the district court had the California
Court of Appeal’s decision dismissing Valdez’s second state
petition because Valdez attached that decision as an exhibit
to his objections to the magistrate judge’s findings and
recommendations. As demonstrated in Section III, the
foregoing information is all that is necessary to conclude that
Valdez’s federal habeas petition was untimely. The district
court did not err by not ordering the State to respond and
lodge the state-court record. 8
V
Because we conclude that Valdez is not entitled to
statutory tolling for the period following the California
Superior Court’s denial of his first state habeas petition,
Valdez’s federal habeas petition is untimely, and we affirm
the district court’s dismissal of his petition.
AFFIRMED.
8
Valdez asks us to take judicial notice of various state-court
documents because they purportedly show why the district court needed
to order the State to lodge the state-court record. Because we can, and
do, affirm the district court’s decision on the record before it, we DENY
Valdez’s motion for judicial notice as MOOT.