FILED
NOT FOR PUBLICATION MAR 21 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
CHRISTOPHER DALE SMITH, No. 11-57167
Petitioner - Appellant, D.C. No. 3:10-cv-02429-LAB-
CAB
v.
LARRY SMALL, Warden; ATTORNEY MEMORANDUM *
GENERAL FOR THE STATE OF
CALIFORNIA,
Respondents - Appellees.
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Argued and Submitted March 7, 2013
Pasadena, California
Before: WARDLAW and GOULD, Circuit Judges, and WOLF, Senior District
Judge.**
Christopher Dale Smith appeals the district court’s dismissal of his petition
for habeas corpus as untimely filed under the Antiterrorism and Effective Death
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Mark L. Wolf, Senior District Judge for the U.S.
District Court for the District of Massachusetts, sitting by designation.
Penalty Act’s (AEDPA) one-year statute of limitations.1 We have jurisdiction
pursuant to 28 U.S.C. § 1291, and we vacate and remand.
The State concedes that Smith is entitled to statutory tolling for the periods
during which his petitions were pending before the California Superior Court and
the California Court of Appeal and for the interval between those petitions. See 28
U.S.C. § 2244(d)(2). At issue is the 85-day delay between the California Court of
Appeal’s denial of Smith’s petition and his subsequent filing of a petition in the
California Supreme Court. The district court concluded that this delay was
unreasonable, and as a result denied Smith statutory tolling for those 85-days,
making Smith’s federal petition untimely.
We conclude to the contrary that Smith’s petition to the California Supreme
Court was filed within a “reasonable time.” See Evans v. Chavis, 546 U.S. 189,
198 (2006) (holding that if the state supreme court’s disposition does not state
whether the petition was timely or untimely, the federal court of appeals must
make that determination itself). The 85-day delay between Smith’s petitions to the
California Court of Appeal and to the California Supreme Court was longer than,
1
Because we reverse the district court’s ruling on timeliness, we do not
reach Smith’s claim that the district court abused its discretion under Pace v.
DiGuglielmo, 544 U.S. 408 (2005), when it dismissed his October 2009 federal
petition in case no. 09-cv-2208 BEN (NLS). Smith’s May 9, 2012, motion to
augment the record with that case is GRANTED.
2
but close to, the 30–60 day delay the Supreme Court previously recognized as
reasonable under California’s habeas system. See id. at 201. Here, the California
Supreme Court did not indicate that Smith’s petition was untimely with an explicit
statement to that effect or with a customary citation to In re Robbins, 959 P.2d 311
(Cal. 1998). See Thorson v. Palmer, 479 F.3d 643, 645 (9th Cir. 2007). Moreover,
Smith proceeded through the state habeas process without the benefit of counsel
and has explained that he had limited access to his legal files while in protective
custody. Given California’s rule that a state habeas petition can be filed within a
reasonable but indeterminate time, and the other circumstances noted above, 85
days was a reasonable time for Smith in this case to prepare and file his habeas
petition in the California Supreme Court. See Evans, 546 U.S. at 201.
We hold that Smith is entitled to statutory tolling sufficient to render his
federal petition timely under AEDPA’s one-year statute of limitations. We
VACATE the district court’s order dismissing Smith’s petition as untimely and
REMAND the case to the district court to consider Smith’s petition on the merits.2
VACATED and REMANDED
2
We express no view on the merits of Smith’s appeal.
3