Robinson v. Lewis

IN THE SUPREME COURT OF
CALIFORNIA

JULIUS M. ROBINSON,
Petitioner and Appellant,
v.
G. W. LEWIS, as Warden, etc.,
Respondent.

S228137

Ninth Circuit
14-15125

Northern District of California
2:13-cv-00604-WBS-AC

July 20, 2020

Justice Groban authored the opinion of the Court, in which
Chief Justice Cantil-Sakauye and Justices Chin, Corrigan, Liu,
Cuéllar, and Kruger concurred.
 ROBINSON v. LEWIS
S228137

Opinion of the Court by Groban, J.

Someone who wishes to challenge a state judgment of
conviction by filing a petition for a writ of habeas corpus in state
court must present each claim in a timely fashion. Generally,
under California law, there are no fixed, determinate deadlines.1
Whether a claim has been timely presented is assessed based on
an indeterminate reasonableness standard. Here, Julius
Robinson — like many such petitioners, a self-represented
prison inmate — filed a petition for a writ of habeas corpus
challenging his state court judgment in the superior court. That
court denied the petition. Sixty-six days later, he filed a new
petition for a writ of habeas corpus in the Court of Appeal
raising the same claims. The Court of Appeal denied the
petition. Then Robinson filed a new original petition for a writ
of habeas corpus in this court. After we denied it, Robinson filed
a petition for a writ of habeas corpus in federal district court
challenging the same judgment. The petition was denied, and
Robinson appealed to the United States Court of Appeals for the
Ninth Circuit.

1
This is a noncapital case. Habeas corpus procedures in
capital cases are different from those in noncapital cases. (See
generally Briggs v. Brown (2017) 3 Cal.5th 808, 824–825.) What
we say in this case involves only noncapital habeas corpus
procedures.
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Opinion of the Court by Groban, J.

Time limits exist in the federal courts for filing petitions
challenging a state court judgment. Whether the petitioner
proceeded in a timely fashion in state courts often has great
significance in the federal courts’ determinations of whether the
federal petition was timely. It is critical in this case. The Ninth
Circuit is uncertain how the California courts treat the time gap
between the denial of a petition for a writ of habeas corpus in a
lower California court and the filing of a new petition in a higher
California court raising the same claims for purposes of
determining whether a claim was timely presented.
Accordingly, it asked us to explain how California law treats
what we will call “gap delay.” (See Robinson v. Lewis (9th Cir.
2015) 795 F.3d 926 (Robinson).) We accepted the request,
although we restated the question presented to more accurately
reflect California law and practice. (See Cal. Rules of Court, rule
8.548(f)(5).) The discussion that follows concerns only gap delay,
not delay in presenting a claim in the first instance.
As we restated it, the question before us is as follows:
When a California court denies a claim in a petition for writ of
habeas corpus, and the petitioner subsequently files the same or
a similar claim in a petition for writ of habeas corpus directed to
the original jurisdiction of a higher court, what is the
significance, if any, of the period of time between the earlier
petition’s denial and the subsequent petition’s filing (66 days in
this case) for purposes of determining the subsequent claim’s
timeliness under California law?2

2
As the Ninth Circuit explained in its opinion asking us to
answer this question, the delay between the Court of Appeal’s
denial of Robinson’s petition in that court and his filing of a
petition for review in this court is not at issue in this case.

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Opinion of the Court by Groban, J.

Our answer is that when an original petition is filed in this
court, we do not consider whether the petition was timely but
rather whether the claims presented within the petition were
timely. We consider only the question of whether each of those
claims was presented without substantial delay, as set forth in
In re Robbins (1998) 18 Cal.4th 770, 780 (Robbins). Gap delay
is relevant to this question. But we do not generally consider,
separately, whether the gap delay, by itself, made the claims
raised in the petition untimely, and no specific time limits exist
for when a new petition for a writ of habeas corpus must be filed
in a higher court after a lower court denies the petition. In the
instant case, a 66-day gap between the denial of a petition in the
superior court and the filing of a new petition in the Court of
Appeal would not be considered substantial delay. It would not
make any claim raised in the petition untimely if the petitioner
had otherwise presented that claim without substantial delay.
Indeed, for the reasons described below, we would never
consider delay of up to 120 days between denial of a petition in
the superior court and the filing of a new petition in the Court
of Appeal (or between denial of a petition in the Court of Appeal
and the filing of a new petition in this court) to be substantial
delay for these purposes. Delay beyond that time period would
be a subject to consider in the normal Robbins analysis.
I. THE NINTH CIRCUIT’S REQUEST
This case involves the interplay between California law
and the federal Antiterrorism and Effective Death Penalty Act
of 1996 (AEDPA). The Ninth Circuit’s opinion requesting us to
answer the aforementioned question described its
understanding of the problem confronting the court. “Under
federal habeas law, 28 U.S.C. § 2244(d)(1), a state prisoner must

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Opinion of the Court by Groban, J.

file a petition for federal habeas review within a one year
limitations period. Section 2244(d)(2) further specifies that this
federal limitations period is tolled for ‘[t]he 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.’ The federal statute has been interpreted to define
‘[t]he time that an application for state postconviction review is
“pending” ’ as including ‘the period between (1) a lower court’s
adverse determination, and (2) the prisoner’s filing of a notice of
appeal, provided that the filing of the notice of appeal is timely
under state law.’ Evans v. Chavis, 546 U.S. 189, 191, 126 S.Ct.
846, 163 L.Ed.2d 684 (2006).
“Chavis explained that in most states other than
California, the number of days a petitioner has for filing an
appeal is established by statute. Id. at 191-92. This makes it
simple to determine whether a filing is ‘timely under state law,’
see id., and thus whether a petition for review is ‘properly filed’
and the federal statute of limitations tolled, see 28 U.S.C.
§ 2244(d)(2). California, however, has a unique system by which
state habeas petitioners challenge adverse state court decisions.
Chavis, 546 U.S. at 192. Rather than requiring a petitioner
whose habeas petition has been dismissed to appeal that
decision to a higher court, California law provides that an
original petition may be filed at each level of the California court
system. Id. at 192-193. Such a petition is timely if filed ‘within
a “reasonable time.” ’ Id. at 192 (quoting In re Harris, 5 Cal.4th
813, 828 n.7, 21 Cal.Rptr.2d 373, 855 P.2d 391 (1993)).[3]

3
In fact, as explained below, we do not consider whether a
petition is timely. We consider whether the claims in the
petition are timely.

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 ROBINSON v. LEWIS
Opinion of the Court by Groban, J.

California courts allow a longer delay if the petitioner
demonstrates good cause. In re Robbins, 18 Cal.4th 770, 780, 77
Cal.Rptr.2d 153, 959 P.2d 311 (1998).
“If a California court states it has dismissed a state habeas
petition because the petition was untimely, ‘that would be the
end of the matter.’ Carey v. Saffold, 536 U.S. 214, 226, 122 S.Ct.
2134, 153 L.Ed.2d 260 (2002). When a California state court
determines that a state prisoner’s state habeas petition is
untimely under state law, there is ‘no “properly filed” state
petition, and [the state prisoner is] not entitled to statutory
tolling’ under the AEDPA. White v. Martel, 601 F.3d 882, 884
(9th Cir. 2010) (per curiam).
“But if a California court dismisses a habeas petition
without comment, or even if it reviews a petition on the merits
without discussing timeliness, a federal court ‘must itself
examine the delay in each case and determine what the state
courts would have held in respect to timeliness,’ Chavis, 546
U.S. at 197-98, in order to determine whether the petition was
‘properly filed’ for purposes of tolling the federal statute of
limitations, id. at 191 (quoting 28 U.S.C. § 2244(d)(2)).
Observing that California courts had not provided authoritative
guidance on this issue, Chavis made its own conjecture
regarding state law, namely ‘that California’s “reasonable time”
standard would not lead to filing delays substantially longer
than’ between 30 and 60 days, the range of time allowed for
filing a notice of appeal by other states’ statutes. Id. at 199, 201.
Based on this conjecture, Chavis held that California courts
would hold the unexplained six-month delay by the state
prisoner in that case to be unreasonable, and therefore
concluded the state prisoner had not filed his state habeas

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Opinion of the Court by Groban, J.

petition on time. Id. at 201.” (Robinson, supra, 795 F.3d at pp.
928–929, fn. omitted.)
Because of continuing uncertainty regarding how
California’s “reasonable time” standard applies to gap delay, the
Ninth Circuit turned to us for guidance. It stated the question
to be decided as follows: “When a state habeas petitioner has no
good cause for delay, at what point in time is that state
prisoner’s petition, filed in a California court of review to
challenge a lower state court’s disposition of the prisoner’s
claims, untimely under California law; specifically, is a habeas
petition untimely filed after an unexplained 66-day delay
between the time a California trial court denies the petition and
the time the petition is filed in the California Court of Appeal?”
(Robinson, supra, 795 F.3d at p. 928.)
We restated the question as indicated in the beginning of
this opinion.
The Ninth Circuit informs us that “[t]he facts of this case
are as follows. Julius Robinson was convicted by a jury of two
counts of premeditated murder, two counts of malicious
discharge of a firearm, and gun and gang enhancements. He
was sentenced to a determinate term of 17 years, and an
indeterminate term of 205 years to life. On February 8, 2011,
the California Court of Appeal modified the sentence and
affirmed the judgment. The California Supreme Court denied
review, and the deadline for Robinson to seek certiorari review
with the United States Supreme Court expired on August 9,
2011.
“On November 12, 2011, 94 days after the certiorari
deadline passed, Robinson constructively filed a state habeas
petition in California Superior Court. On January 19, 2012, the

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Opinion of the Court by Groban, J.

Superior Court denied Robinson’s petition. On March 26, 2012,
66 days after the Superior Court denied his petition, Robinson
filed a petition with the California Court of Appeal. On April 5,
2012, the California Court of Appeal denied Robinson’s petition,
citing In re Steele, 32 Cal.4th 682, 692, 10 Cal.Rptr.3d 536, 85
P.3d 444 (2004), and In re Hillery, 202 Cal.App.2d 293, 20
Cal.Rptr. 759 (1962). Neither case involves a timeliness
determination.[4] Accord Walker v. Martin, 562 U.S. 307, 310,
131 S.Ct. 1120, 179 L.Ed.2d 62 (2011) (‘California Courts signal
that a habeas petition is denied as untimely by citing the
controlling decisions, i.e., [In re] Clark[, 5 Cal.4th 750, 21
Cal.Rptr.2d 509, 855 P.2d 729 (1993)] and Robbins.’). On July
6, 2012, 91 days after the California Court of Appeal decision,
Robinson filed a petition with the California Supreme Court.
The California Supreme Court denied his petition on October 24,
2012.
“Robinson filed a habeas petition under 28 U.S.C. § 2254
in federal district court on March 13, 2013, which was 139 days
after the California Supreme Court issued its denial. Adding up
the delays that were attributable to Robinson (delays of 94, 66,
91, and 139 days), and excluding the time when his filed

4
As the Ninth Circuit’s opinion suggests, these citations
were likely in error. The cited page in Steele explains that,
although “both trial and appellate courts have jurisdiction over
habeas corpus petitions, . . . a reviewing court has discretion to
deny without prejudice a habeas corpus petition that was not
filed first in a proper lower court.” (In re Steele, supra, 32
Cal.4th at p. 692 (Steele).) Hillery is to the same effect. (Hillery,
supra, 202 Cal.App.2d at p. 294.) Here, Robinson did first apply
for habeas corpus relief in the superior court, although the Court
of Appeal might not have been aware of it.

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 ROBINSON v. LEWIS
Opinion of the Court by Groban, J.

petitions were being considered by the California courts, his
petition was filed 390 days after his conviction became final and
the time for seeking certiorari review by the Supreme Court
expired.
“The government moved to dismiss the petition, on the
ground that the one-year statute of limitations under 28 U.S.C.
§ 2244 had expired before Robinson filed his petition. A
magistrate judge considered whether Robinson was entitled to
tolling of the statute of limitations for the gaps between each
lower court denial of Robinson’s habeas petition and his
subsequent filing of a new petition in the next-level state court.
She concluded that the 66-day period between the denial of his
California Superior Court petition and the filing date of his
Court of Appeal petition was unreasonable, and therefore
Robinson was not entitled to tolling for that period. The
magistrate judge also concluded that Robinson was not entitled
to tolling for the 91-day period between the denial of his
California Court of Appeal petition and the filing date of his
California Supreme Court petition. Absent tolling for either of
these two periods, Robinson’s petition was untimely. The
district court adopted the magistrate judge’s findings and
recommendations and granted the government’s motion to
dismiss Robinson’s federal habeas corpus petition with prejudice
as barred by the statute of limitations.
“On appeal, we are considering only the question whether
Robinson is entitled to tolling for the 66-day interval between
the California Superior Court denial of habeas relief and his
filing a new petition in the California Court of Appeal. [A
footnote here states that “Robinson did not appeal the district
court’s determination that he was not entitled to tolling for the

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91-day period.”] The issue of good cause is absent in this case.
Although Robinson claimed in district court that the delay was
‘attributed to further research and litigation of potential issues,’
the district court rejected this justification because ‘[t]he
petition filed in the California Court of Appeal was simply a
photocopy of the prior petition.’ Robinson did not dispute this
conclusion in his briefing before our court. He has therefore
waived it. See United States v. Kama, 394 F.3d 1236, 1238 (9th
Cir. 2005).” (Robinson, supra, 795 F.3d at pp. 933–934, fns.
omitted.)
II. DISCUSSION
We restated the question presented for two reasons.
First, as originally asked, the question assumed that a
habeas corpus petition filed in a higher court constitutes a
challenge to the lower court’s denial of the previous petition. In
fact, it is a new petition invoking the higher court’s original
jurisdiction. “The Supreme Court, courts of appeal, superior
courts, and their judges have original jurisdiction in habeas
corpus proceedings.” (Cal. Const., art. VI, § 10.) The “people”
may appeal if the superior court grants habeas corpus relief.
(Pen. Code, § 1506.) But in noncapital cases, if the superior
court denies a petition for a writ of habeas corpus, the petitioner
has no statutory right to appeal. Instead, the petitioner must
file a new, original petition, generally in the Court of Appeal. A
new petition for a writ of habeas corpus differs from an appeal
in important respects. The new petition can add to or attempt
to bolster the claims made in the earlier petition. Moreover,
unlike an appeal, a petition can be, and often is, denied without
full briefing from the parties, oral argument, or opinion.
All courts in California have original habeas corpus

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jurisdiction, but that does not mean all courts must exercise it
in all circumstances. A higher court “has discretion to deny
without prejudice a habeas corpus petition that was not filed
first in a proper lower court.” (Steele, supra, 32 Cal.4th at p.
692; see In re Ramirez (2001) 89 Cal.App.4th 1312, 1316.) For
this reason, the United States Supreme Court has observed that
“California’s habeas rules lead a prisoner ordinarily to file a
petition in a lower court first.” (Carey v. Saffold, supra, 536 U.S.
at p. 221.) We agree. Petitioners should first file a petition for
a writ of habeas corpus challenging a judgment in the superior
court that rendered the judgment. If the superior court denies
the petition, the petitioner may then file a new petition in the
Court of Appeal.5 The superior court that rendered the
judgment is best equipped to consider the claim in the first
instance, to hold an evidentiary hearing when necessary, and to
grant relief if appropriate. A petition filed in a superior court
that did not render the judgment is subject to transfer to the
court that did render the judgment. (Griggs v. Superior Court
(1976) 16 Cal.3d 341, 347.)
Although petitioners should start in the superior court
and then, if unsuccessful, may file a petition in the Court of
Appeal, it remains true that a petition in the Court of Appeal is
a new petition invoking that court’s original jurisdiction. If a
lower court has made factual findings following an evidentiary
hearing, the higher court will give those findings great weight,

5
An exception to this general procedure exists. A petition
for a writ of habeas corpus may be filed in the Court of Appeal
in the first instance if it is related to a pending direct appeal.
(People v. Pope (1979) 23 Cal.3d 412, 426–427, fn. 17; see Cal.
Rules of Court, rule 3.387(b)(2)(B).)

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but it is not bound by them. (In re Resendiz (2001) 25 Cal.4th
230, 249 (plur. opn. of Werdegar, J.) Thus, a Court of Appeal
that considers a new petition does not directly review the
superior court’s ruling but makes its own ruling.
The question as to whether the higher court is reviewing
the lower court’s decision is more complex when a petitioner
seeks redress from this court after the Court of Appeal denies a
petition. In that event, the petitioner has two options. The
petitioner may file a petition for review in this court. (Pen. Code,
§ 1506.)6 Such a petition is subject to tight time limits. Unless
the Chief Justice relieves the party from default, the petition for
review must be filed in this court within 10 days of finality of
the Court of Appeal decision. (Cal. Rules of Court, rules
8.500(e)(1), (2).) A Court of Appeal decision denying a petition
for writ of habeas corpus without issuing an order to show cause
is generally final immediately, which means the petition for
review must be filed within 10 days after the filing of the denial
order. (Cal. Rules of Court, rule 8.387(b)(2)(A).) An exception
exists when the petition is related to an appeal and the denial is
filed the same day as the appellate decision, in which case the
denial is final on the same day that the appellate decision is
final. (Cal. Rules of Court, rule 8.387(b)(2)(B).) If, but only if, a
petition for review is filed to challenge the Court of Appeal’s
denial of the previous petition, this court does, indeed, review
the Court of Appeal’s rulings on the claims presented in the
previous petition.

6
Penal Code section 1506 actually refers to a “hearing” in
this court rather than “review.” “Hearing” is the word formerly
used when a party turned to this court for relief, but “review” is
the word used today. (See Cal. Const., art. VI, § 12, subd. (b).)

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But the petitioner also has the option of filing a new,
original petition for a writ of habeas corpus in this court
invoking this court’s original jurisdiction and raising one or
more claims raised in previous petitions or adding new claims
not previously raised. Far more petitioners file an original
petition in this court than file a petition for review, possibly to
avoid the stringent procedural requirements. In that event, the
petition is an original petition, and we do not directly review the
lower courts’ rulings although, again, we will give any lower
court’s factual findings great weight if an evidentiary hearing
was held.
The question of “gap delay” following the denial of a
habeas corpus petition in the Court of Appeal is clear in the case
of a petition for review. A petition filed more than 10 days after
the Court of Appeal’s decision becomes final is untimely unless
the Chief Justice relieved the party from default. It is only when
an original petition is filed in this court that the question of gap
delay becomes potentially problematic for petitioners and the
federal courts. For these reasons, we restated the certified
question to make clear that a habeas petition filed in a higher
court is a new petition involving the higher court’s original
jurisdiction.
Second, the question as the Ninth Circuit phrased it
appeared to assume that timeliness of a habeas corpus petition
is judged as a whole, rather than on a claim-by-claim basis. But
we determine “whether claims in a petition for a writ of habeas
corpus have been timely filed” (In re Reno (2012) 55 Cal.4th 428,
460, italics added (Reno)), not whether the petition as a whole
was timely filed. A given petition containing multiple claims
might have one or more claims that are untimely and one or

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more claims that are timely. In that event, we might bar the
specific untimely claims. But we do not find a petition itself to
be untimely.
As the United States Supreme Court has recognized, in
noncapital cases, California courts, including this one,
sometimes simply deny with a summary order petitions that
clearly lack merit without specifying whether any given claim is
untimely or otherwise procedurally barred. (Walker v. Martin,
supra, 562 U.S. at p. 310.) This “court rules on a staggering
number of habeas petitions each year”; because of this, we often
exercise our “discretion . . . to bypass a timeliness issue and,
instead, summarily reject the petition for want of merit.” (Id. at
pp. 312–313; see also Carey v. Saffold, supra, 536 U.S. at p. 225
[a court might simply deny an untimely claim on the merits for
several reasons, such as “where the merits present no difficult
issue”].) As the high court has also recognized, issuing
“summary dispositions in many collateral attack cases can
enable a state judiciary to concentrate its resources on the cases
where opinions are most needed.” (Harrington v. Richter (2011)
562 U.S. 86, 99 [citing a brief noting that, at that time, this court
“dispose[d] of close to 10,000 cases a year, including more than
3,400 original habeas corpus petitions”].)
With this background, we turn to the question of the
significance of gap delay in filing original petitions for writ of
habeas corpus in a higher court after a lower court has denied
the earlier petition. We begin by reviewing our general
timeliness rules. There are no specific time limits for either
filing the first petition or filing subsequent petitions in a higher
court. Instead, California courts employ a reasonableness
standard. The claim must generally be presented without

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substantial delay. “Substantial delay is measured from the time
the petitioner or his or her counsel knew, or reasonably should
have known, of the information offered in support of the claim
and the legal basis for the claim.” (Robbins, supra, 18 Cal.4th
at p. 780.)
“Our rules establish a three-level analysis for assessing
whether claims in a petition for a writ of habeas corpus have
been timely filed. First, a claim must be presented without
substantial delay.[7] Second, if a petitioner raises a claim after
a substantial delay, we will nevertheless consider it on its merits
if the petitioner can demonstrate good cause for the delay.
Third, we will consider the merits of a claim presented after a
substantial delay without good cause if it falls under one of four
narrow exceptions.” (Reno, supra, 55 Cal.4th at p. 460, citing
Robbins, supra, 18 Cal.4th at pp. 780–781.) Reno and Robbins
were capital cases. Only three of the four exceptions cited in
Reno and Robbins are relevant to noncapital cases: (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 innocent of the crime or crimes of which he
or she was convicted’ ”; and (3) “ ‘that the petitioner was
convicted or sentenced under an invalid statute.’ ” (Reno, at p.
460, quoting Robbins, at pp. 780–781.) “The petitioner bears the
burden to plead and then prove all of the relevant allegations.”

7
In describing this requirement, we have sometimes used
the language, “ ‘as promptly as the circumstances allow.’ ” (In
re Clark (1993) 5 Cal.4th 750, 765, fn. 5; see Reno, supra, 55
Cal.4th at p. 460.) That language and the term “without
substantial delay” are equivalent.

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(Reno, at p. 460.)
This court does not generally consider gap delay as a
specific question separate from the larger question of whether a
claim was timely presented. California’s habeas corpus
timeliness standards refer to overall delay in presenting a
habeas corpus claim and not specifically gap delay. We consider
whether, under all of the circumstances, the petitioner
presented the claim without substantial delay after it was, or
reasonably should have been, known to the petitioner. The time
between levels is just part of that question. Gap delay, if
inordinate and unexplained, is relevant to this overall question
and might be a significant factor in our timeliness analysis
under Robbins, but it is not the question itself. There are no
specific time limitations for presenting a claim in a higher court
after a lower court has denied the claim.
Gap delay raises fewer concerns than delay in presenting
the claim in the first instance. Once the claim is formally
presented in a petition for a writ of habeas corpus filed in the
lower court, the state is on notice of its existence and can begin
to defend against it if appropriate.
Moreover, even if the time gap between levels is
substantial, California’s procedure of requiring a new petition,
rather than permitting an appeal, will usually result in more
prompt resolution of the claim in the higher court than would
an appeal. A notice of appeal merely begins the appellate
process. Normally, record production, full briefing, oral
argument, and a formal judicial opinion will follow, all of which
can take considerable time. By contrast, the filing of a petition
for a writ of habeas corpus can be, and often is, the end of the
process. A court can simply deny the petition without further

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proceedings if it is meritless or procedurally barred. For these
reasons, while gap delay is relevant to the question of
timeliness, it is just one piece of the overall picture and is not
considered independently. In this case, we would not consider a
66-day time gap between the superior court and the Court of
Appeal to be substantial delay under Robbins, supra, 18 Cal.4th
770.
Although no specific time period exists for the
presentation of a claim, we believe it appropriate to state a
specific time period within which gap delay would never be
considered to be substantial delay. Doing so will provide what
Robinson calls a “safe harbor,” so petitioners will know that a
claim presented to a higher court within that time period will
never be considered untimely due to that delay. Both parties
agree that it would be helpful to the state and petitioners, as
well as the federal courts, to be more specific regarding gap
delay.
More specificity should benefit the federal courts as well
as both sides in habeas corpus litigation by providing a degree
of certainty. It would benefit inmates in state court to have
assurance that if a petition is filed within the time period, the
claims will not be found untimely due (even in part) to gap delay,
an assurance that is lacking under today’s general
reasonableness standard. Today, gap delay in state court can be
considered as part of the overall untimeliness analysis under
Robbins, but the inmate petitioner does not know how long of a
gap delay would be considered substantial. Specificity should
also simplify litigation for those petitions that are filed in a
higher court within the time period. The parties could tell at a
glance that the gap delay in those cases was irrelevant to any

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timeliness issue, and they would not litigate it.
This court has “inherent authority to establish ‘rules of
judicial procedure.’ ” (In re Roberts (2005) 36 Cal.4th 575, 593.)
For the reasons stated, we believe it appropriate to exercise this
authority by establishing a time period for gap delay that
provides a certain safe harbor for petitioners who file their
claims within that time period. We must here decide how long
the specified time period should be. As is to be expected, the
parties disagree on this point, with the Attorney General urging
shorter time periods and Robinson longer ones.
We have said that, in contrast to capital litigants, inmates
serving prison terms who are seeking release “have no incentive
to engage in delaying tactics that would prolong their
imprisonment.” (Catlin v. Superior Court (2011) 51 Cal.4th 300,
308, fn. 3.) This is true except in the rare case when a petitioner
might delay for tactical reasons, as when the petitioner waits for
the defense attorney or a key witness or a juror to die and thus
be unavailable to counter allegations the attorney provided
ineffective assistance or the witness lied or the juror committed
misconduct. Thus, normally, intentional delay by the petitioner
is not a concern.
On the other hand, good reason exists to require
reasonably expeditious presentation of these claims. Timeliness
requirements “ ‘vindicate society’s interest in the finality of its
criminal judgments, as well as the public’s interest “in the
orderly and reasonably prompt implementation of its laws.”
[Citation.] . . . Requiring a prisoner to file his or her challenge
promptly helps ensure that possibly vital evidence will not be
lost through the passage of time or the fading of memories.’ ”
(Reno, supra, 55 Cal.4th at p. 459.) Timeliness rules also help

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Opinion of the Court by Groban, J.

“ ‘to avoid the need to set aside final judgments of conviction
when retrial would be difficult or impossible.’ ” (In re Martinez
(2009) 46 Cal.4th 945, 956.)
The Attorney General argues that, because the claim had
already been presented in the lower court, filing a new petition
in a higher court is easy. It might be, and sometimes is, as easy
as simply filling in the prescribed form and adding a copy of the
previous petition, as Robinson did in this case. The Attorney
General suggests the specified time for filing a new petition in
the Court of Appeal after a superior court’s denial should be the
same as the time limit for filing a notice of appeal in the superior
court (generally 60 days after the judgment is rendered (Cal.
Rules of Court, rule 8.308(a)), and the time to file a new petition
in this court should be the same as the time to file a petition for
review (generally 10 days after the Court of Appeal decision
(Cal. Rules of Court, rules 8.387(b)(2)(A), 8.500(e)(1)).
The analogy to a notice of appeal, although superficially
appealing, is inapt. Although petitioners may, and sometimes
do, simply present the same petition in the higher court as in
the lower court, they are not required to do so. They may wish
to try to bolster the claims. A notice of appeal is merely a notice
that the party intends to appeal. Record preparation and
briefing comes later, and the matter is not submitted in the
Court of Appeal until after the case has been fully briefed and
argued. A habeas corpus petition, by contrast, effectively
constitutes the first round of briefing and in many cases the only
briefing. Unless the court requests an informal response or
issues an order to show cause, the matter is submitted when the
petition is filed. Accordingly, we do not believe the time limit to

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Opinion of the Court by Groban, J.

file a notice of appeal or a petition for review in this court should
be the benchmark for gap delay.
Robinson argues that the safe harbor should be at least six
months. He notes the problems inherent in filing a petition from
within prison. Inmate petitioners are required to use a standard
form. (Cal. Rules of Court, rule 4.551(a)(1).) The form contains
several pages and requires the petitioner to provide a statement
describing any previous petitions and how they were decided.
Often difficulties exist in gaining access to legal materials and
copying, and in having the finished petition mailed to the court.
Moreover, when the superior court denies a petition for a writ of
habeas corpus, the order “must contain a brief statement of the
reasons for the denial.” (Cal. Rules of Court, rule 4.551(g).) In
the new petition, a petitioner might want to address the reasons
the court stated. If the superior court had conducted an
evidentiary hearing, the petitioner might also want to address
any adverse factual findings.
All of these considerations convince us that the safe harbor
should be longer than the 60 days generally provided for filing a
notice of appeal. But the six-month period Robinson urges is
unduly generous. Whatever difficulties a petitioner might
encounter in reasserting a claim already made in the lower court
can usually be met in less than six months. Moreover, in
considering how extensive the time gap might be during which
the matter would remain “pending” in state court, the United
States Supreme Court observed that it did not “see how an
unexplained delay of this magnitude [six months] could fall
within the scope of the federal statutory word ‘pending’ as
interpreted in Saffold.” (Evans v. Chavis, supra, 546 U.S. at p.
201, citing Carey v. Saffold, supra, 536 U.S. at pp. 222–223.)

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Opinion of the Court by Groban, J.

This observation also counsels against making the safe harbor
as long as six months. An unexplained delay of that duration
might endanger gap delay tolling in federal court.
As such, a period twice the time for filing a notice of
appeal, i.e., 120 days, is reasonable. This time period is not an
absolute deadline. Providing a safe harbor simply means that
delay beyond the specified time would be subject to the normal
Robbins analysis. That is, we would consider whether, under all
of the circumstances, gap delay longer than 120 days constituted
substantial delay and, if so, whether the petitioner
demonstrated good cause for the delay or an exception applied.
For these reasons, we adopt a time period of 120 days as the safe
harbor for gap delay. A new petition filed in a higher court
within 120 days of the lower court’s denial will never be
considered untimely due to gap delay.
III. CONCLUSION
We summarize the procedures relevant to gap delay and
our answer to the question the Ninth Circuit posed as follows:
Petitioners challenging a state court judgment by means of a
petition for a writ of habeas corpus that is not related to a
pending direct appeal should first file the petition in the
superior court that rendered the judgment. If the superior court
denies the petition, the petitioner may file a new petition in the
Court of Appeal. That court has discretion to deny without
prejudice a petition presenting claims that had not first been
presented to the superior court if the court believes it is
beneficial to do so. If the Court of Appeal denies the petition,
the petitioner may either file a petition for review in this court
or file a new petition for a writ of habeas corpus invoking this
court’s original jurisdiction. This court also has discretion to

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Opinion of the Court by Groban, J.

deny without prejudice a petition presenting claims that had not
previously been presented to the lower courts.
In this process, delay between the filing of the petition in
a higher court after the lower court denied relief is relevant to
the overall question of timeliness of the claims presented in the
petition, but it is not a separate question, and no specific time
limits exist. Such delay of up to 120 days would never be
considered substantial delay and would not, by itself, make the
claim untimely if the petitioner had otherwise presented the
claim without substantial delay. Gap delay beyond that time
period will not automatically be considered substantial delay
but will simply be a relevant factor for the court to consider as
part of its overall analysis under Robbins, supra, 18 Cal.4th 770.

GROBAN, J.

We Concur:
CANTIL-SAKAUYE, C. J.
CHIN, J.
CORRIGAN, J.
LIU, J.
CUÉLLAR, J.
KRUGER, J.

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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Robinson v. Lewis
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding XXX on request pursuant to rule 8.548, Cal. Rules of Court
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No. S228137
Date Filed: July 20, 2020
__________________________________________________________________________________

Court:
County:
Judge:

__________________________________________________________________________________

Counsel:

Heather E. Williams, Federal Defender, Carolyn M. Wiggin and David H. Harshaw III, Assistant Federal
Defenders, for Petitioner and Appellant.

Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen, Rachelle A. Newcomb,
Brian G. Smiley and David Andrew Eldridge, Deputy Attorneys General, for Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Carolyn M. Wiggin
Assistant Federal Defender
801 I Street, Third Floor
Sacramento, CA 95814
(916) 498-5700

David Andrew Eldridge
Deputy Attorney General
1300 I Street, Suite 125
Sacramento, CA 94244-2550
(916) 324-6291