FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PAUL MELVILLE, Jr., No. 21-15999
Petitioner-Appellant, D.C. No.
2:18-cv-01703-
v. JGZ
DAVID SHINN, Director;
ATTORNEY GENERAL FOR THE OPINION
STATE OF ARIZONA,
Respondents-Appellees.
Appeal from the United States District Court
for the District of Arizona
Jennifer G. Zipps, District Judge, Presiding
Argued and Submitted February 6, 2023
Phoenix, Arizona
Before: Susan P. Graber, Richard R. Clifton, and Morgan
Christen, Circuit Judges.
Filed May 23, 2023
Opinion by Judge Clifton
2 MELVILLE V. SHINN
SUMMARY *
Habeas Corpus
The panel reversed the district court’s order dismissing
as untimely Arizona prisoner Paul Melville, Jr.’s 28 U.S.C.
§ 2254 habeas petition.
The panel held that a post-conviction relief application
in Arizona ceases to be “pending” under 28 U.S.C. §
2244(d)(2) for purposes of tolling AEDPA’s one-year
limitation period as long as a state avenue for relief remains
open, whether or not a petitioner takes advantage of
it. Applying the same statute, the panel also held that
Melville’s post-conviction application ceased to be pending
when the time for him to seek further relief in the state courts
expired, which was not precisely when the Arizona Court of
Appeals issued its mandate. Applying those principles and
correcting some misunderstandings as to when certain
events occurred and certain periods expired, the panel
reversed the dismissal of the petition and remanded for
further proceedings.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
MELVILLE V. SHINN 3
COUNSEL
Keith J. Hilzendeger (argued), Assistant Federal Public
Defender; Jon M. Sands, Federal Public Defender; Public
Defenders’ Office; Phoenix, Arizona, for Petitioner-
Appellant.
Casey D. Ball (argued) and Jillian Francis, Assistant
Attorneys General; J.D. Nielson, Habeas Unit Chief; Mark
Brnovich, Attorney General of Arizona; Office of the
Arizona Attorney General; Phoenix, Arizona, for
Respondents-Appellees.
4 MELVILLE V. SHINN
OPINION
CLIFTON, Circuit Judge:
Arizona prisoner Paul Melville, Jr., appeals the district
court’s dismissal of his 28 U.S.C. § 2254 habeas petition as
untimely. The Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA) established a one-year statute of
limitations for filing a federal habeas petition. See 28 U.S.C.
§ 2244(d)(1). That limitations period begins to run from the
latest of four possible events. The one applicable here is the
end of direct appellate review by the state courts, expressed
in the statute as “the date on which the judgment became
final by the conclusion of direct review or the expiration of
the time for seeking such review.” Id. § 2244(d)(1)(A).
Following direct review by appeal within the state court
system, there usually is also a process for further review by
the state courts, generally described as state “post-conviction
relief” or “habeas” review. The one-year limitations period
for federal habeas review is tolled under AEDPA during the
time in which “a properly filed application for State post-
conviction or other collateral review with respect to the
pertinent judgment or claim is pending.” Id. § 2244(d)(2).
This case presents the following question: When does a
post-conviction relief (PCR) application in Arizona cease to
be “pending”? We conclude that a PCR application is
pending as long as a state avenue for relief remains open,
whether or not a petitioner takes advantage of it. We also
conclude, applying the same statute, that Melville’s post-
conviction application ceased to be pending when the time
for him to seek further relief in the state courts expired,
which was not precisely when the Arizona Court of Appeals
issued its mandate. Applying those principles and correcting
MELVILLE V. SHINN 5
some misunderstandings as to when certain events occurred
and certain periods expired, as detailed below, lead us to
reverse the dismissal of Melville’s petition and remand for
further proceedings.
I. Background
In 2013, a jury convicted Melville of two counts of
armed robbery and four counts of aggravated assault. He was
sentenced to 18 years in prison. In July 2014, the Arizona
Court of Appeals affirmed Melville’s convictions on direct
review. We summarize the key dates from that point on: 1
July 29, 2014 Conviction affirmed by Arizona
Court of Appeals on direct appeal
September 26, 2014 PCR petition signed by Melville and
delivered to prison officials for
mailing to Maricopa County
Superior Court
September 29, 2014 Expiration of extension of time to
petition the Arizona Supreme Court
for review of affirmance by Arizona
Court of Appeals on direct review of
conviction (no such petition was
filed)
October 1, 2014 PCR petition stamped as filed in
Maricopa County Superior Court
1
As described below, the parties now agree that some of the dates used
by the district court in its consideration of the timeliness of Melville’s
petition were mistaken. This chart incorporates the corrections.
6 MELVILLE V. SHINN
April 18, 2017 Arizona Court of Appeals granted
review of denial of PCR petition by
Superior Court but denied relief
June 1, 2017 Expiration of extension of time
granted by Arizona Court of
Appeals to move that court for
reconsideration of its denial of PCR
relief (no such motion was filed)
June 7, 2017 Arizona Court of Appeals mandate
issued
June 1, 2018 Federal habeas petition signed by
Melville and delivered to prison
officials for mailing to federal
district court
June 4, 2018 Federal habeas petition stamped as
filed in federal district court
After the Arizona Court of Appeals affirmed his
conviction, Melville sought and received an extension of
time to petition for review of that decision by the Arizona
Supreme Court. That extension ran until September 29,
2014.
Despite obtaining that extension, Melville did not file a
petition for review with the Arizona Supreme Court. As we
discuss below, Melville’s judgment therefore became final
on September 29, 2014 under Section 2244(d)(1)(A),
because that was “the expiration of the time for seeking such
review.”
Ordinarily, AEDPA’s one-year limitations period would
have started running the next day. Melville had, however,
already signed and mailed from prison a PCR petition in the
MELVILLE V. SHINN 7
Superior Court for Maricopa County on September 26, 2014,
three days before the extension expired and his judgment
became final. As discussed below, under the prison mailbox
rule as applied for state court filings by pro se prisoners in
Arizona, that date serves as the filing date for Melville’s
PCR petition, although the petition was not physically
received and file-stamped by the court clerk until a few days
later. The filing of the PCR petition immediately tolled the
limitations period under AEDPA.
The superior court dismissed Melville’s petition. He
timely appealed, and on April 18, 2017, the Arizona Court
of Appeals granted review but denied relief. Melville then
moved for an extension of time to file a motion for
reconsideration by that court. The Arizona Court of Appeals
granted an extension giving Melville until June 1, 2017, to
file the motion for reconsideration.
Melville never filed a motion for reconsideration. Nor
did he submit any filing to pursue the PCR petition before
the Arizona Supreme Court. On June 7, 2017, the Court of
Appeals issued its mandate, noting that the time for filing a
motion for reconsideration or a petition for review had
expired.
Nearly twelve months later, on June 1, 2018, Melville
filed a habeas petition in federal district court. Upon referral
by the district court, a magistrate judge issued a Report and
Recommendation (R&R) concluding that Melville’s petition
was untimely. In the R&R, the magistrate judge determined
that because the Arizona Court of Appeals affirmed
Melville’s convictions and sentences on July 29, 2014,
Melville’s judgment became final on September 2, 2014,
after the expiration of the thirty-five-day period to seek
review in the Arizona Supreme Court.
8 MELVILLE V. SHINN
The district court, after conducting an independent
review of the briefing and record, issued an order adopting
the R&R and denying a Certificate of Appealability. The
district court explained that Melville’s June 2018 federal
habeas petition was untimely for the following reasons:
As the limitations period was triggered on
September 2, 2014, the Magistrate Judge
concluded that 29 days of the limitations
period ran between September 2, 2014, and
October 1, 2014, when Melville filed his PCR
petition, statutorily tolling the limitations
period. The remaining limitations period
began on June 7, 2017, and expired on May
9, 2018, 336 days after the appeals court
issued its mandate finalizing its order
denying PCR relief.
Melville timely appealed.
II. Discussion
We review de novo a district court’s decision to deny a
habeas petition as untimely. Flemming v. Matteson, 26 F.4th
1136, 1138 (9th Cir. 2022). We review the district court’s
findings of fact for clear error. Ochoa v. Davis, 50 F.4th 865,
876 (9th Cir. 2022).
A. Relevant dates
Although the State of Arizona urges us to affirm the
district court’s dismissal of Melville’s petition as untimely,
the parties agree that the district court’s consideration of the
timeliness of the petition went astray in connection with
certain relevant dates.
MELVILLE V. SHINN 9
The first is the date when Melville’s judgment of
conviction became final. The district court concluded that
because the Arizona Court of Appeals affirmed Melville’s
conviction on July 29, 2014, the judgment became final on
September 2, 2014, after the expiration of the thirty-five-day
period to seek review at the Arizona Supreme Court. Neither
party, however, appears to have alerted the district court to
the Arizona Supreme Court’s order granting Melville an
extension to file his petition until September 29, 2014,
twenty-seven days later. That date was when the judgment
became final under the controlling federal statute, which
provides that a judgment becomes final “by the conclusion
of direct review or the expiration of the time for seeking such
review.” 28 U.S.C. § 2244(d)(1)(A) (emphasis added).
Second, the parties also agree that the date used by the
district court for determining when Melville initiated his
post-conviction proceedings was incorrect. The district
court’s calculations were based on an understanding that
Melville filed his notice of post-conviction relief on October
1, 2014. It appears that neither party alerted the district court
to the effect of the prison mailbox rule, applied under
Arizona law to pro se PCR filings. See State v. Rosario, 987
P.2d 226, 228 (Ariz. Ct. App. 1999) (holding that Arizona
applies the prison mailbox rule in pro se post-conviction
proceedings). Under that rule, a petition is treated as filed on
the date the prisoner delivered it to prison officials for
mailing. Orpiada v. McDaniel, 750 F.3d 1086, 1087 (9th
Cir. 2014).
The record shows that Melville’s notice of post-
conviction relief was signed and dated on September 26,
2014, although the stamp from the clerk’s office indicates
that it was filed with the court on October 1, 2014. The
district court incorrectly applied the date of the court filing,
10 MELVILLE V. SHINN
October 1, 2014, in its analysis. “We assume that [Melville]
turned his petition over to prison authorities on the same day
he signed it and apply the mailbox rule.” Butler v. Long, 752
F.3d 1177, 1178 n.1 (9th Cir. 2014) (per curiam). Therefore,
statutory tolling commenced on September 26, 2014, three
days before the judgment became final on September 29,
2014.
Third, the prison mailbox rule similarly applies to pro se
federal habeas petitions. Porter v. Ollison, 620 F.3d 952, 958
(9th Cir. 2010). Melville signed, dated, and attested that his
habeas petition was placed in the prison mailing system on
June 1, 2018. The district court was mistaken when it used
in its timeliness analysis the June 4, 2018, filing date
according to the clerk’s stamp.
B. The legal dispute: When did the PCR petition cease
to be “pending”?
The remaining dispute between the parties is a legal one:
When did Melville’s state PCR application cease to be
“pending” under § 2244(d)(2), ending the statutory tolling
period and starting the clock on the one-year period within
which Melville had to file the federal habeas petition?
Melville argues that the district court was correct in
concluding that the relevant date is when the Arizona Court
of Appeals issued the mandate on July 7, 2017. In contrast,
the state argues that the correct date is when the Court of
Appeals denied Melville’s petition for post-conviction relief
on April 18, 2017. Neither party is correct.
According to the United States Supreme Court’s
interpretation of the term “pending” as used in
Section 2244(d)(2), a state post-conviction relief application
is “pending as long as the ordinary state collateral review
process is ‘in continuance.’—i.e., ‘until the completion of’
MELVILLE V. SHINN 11
that process. In other words, until the application has
achieved final resolution through the State’s post-conviction
procedures, by definition it remains ‘pending.’” Carey v.
Saffold, 536 U.S. 214, 219–20 (2002) (quoting Webster’s
Third New International Dictionary 1669 (1993)).
Determining when a post-conviction application ceases to be
“pending” for statutory tolling requires looking to the
relevant state’s law and procedural rules. See id. at 221–23.
When the Arizona Court of Appeals denied Melville’s
petition for post-conviction relief on April 18, 2017,
Melville could have sought reconsideration from that court.
Melville obtained an extension of time expiring on June 1,
2017, to file a motion for reconsideration. Melville did not
file a motion for reconsideration, but he could have done so
properly and timely under Arizona law and procedure.
Therefore, June 1, 2017, is the date when his post-conviction
application ceased to be pending because that is when “the
application ha[d] achieved final resolution through the
State’s post-conviction procedures.” Carey, 536 U.S. at 220.
Contrary to the State’s position, that Melville did not
move for reconsideration does not mean his post-conviction
application ceased to be pending when the Arizona Court of
Appeals denied his petition. The State cites Lawrence v.
Florida for the proposition that tolling concludes when the
state court is no longer reviewing the application. 549 U.S.
327, 332 (2007). This reliance is misplaced. Lawrence dealt
with whether a state post-conviction application was
“pending” under Section 2244(d)(2) when a state court had
entered a final judgment on the matter but a petition for
certiorari was filed in the Supreme Court. Id. at 329. The
Court answered that question in the negative, holding that “a
state postconviction application ‘remains pending’ ‘until the
application has achieved final resolution through the State’s
12 MELVILLE V. SHINN
postconviction procedures’ and that the Supreme Court was
not part of “the State’s postconviction procedures.” Id. at
332 (quoting Carey, 536 U.S. at 220).
Lawrence clarified that “[s]tate review ends when the
state courts have finally resolved an application for state
postconviction relief. After the State’s highest court has
issued its mandate or denied review, no other state avenues
for relief remain open.” Id. at 332 (emphasis added). The
Arizona Court of Appeals’ decision to grant an extension of
time for reconsideration deferred a final resolution of
Melville’s post-conviction petition because a state avenue
for relief remained open, whether or not Melville took
advantage of it.
Melville urges us to uphold the district court’s
conclusion that the Arizona Court of Appeals’ issuance of
the mandate on June 7, 2017, was the date when his post-
conviction application ceased to be pending. The district
court relied on another Arizona district court decision, often
cited, which held that a post-conviction application becomes
final when the Arizona Court of Appeals issues the mandate.
See Celaya v. Stewart, 691 F. Supp. 2d 1046, 1074 (D. Ariz.
2010). Celaya relied on former Arizona Rule of Criminal
Procedure 31.23(a), which stated, “[i]f there has been no
motion for reconsideration and no petition for review filed,
the clerk of the Court of Appeals shall issue the mandate at
the expiration of the time for filing such motion or petition.”
Id. (emphasis added). Therefore, Celaya’s reliance on the
mandate follows the logic of Lawrence in that a
postconviction application ceases to be pending when “no
other state avenues for relief remain open.” Lawrence, 549
U.S. at 332. The clerk of the Arizona Court of Appeals
issued the mandate six days after the last state avenue for
relief expired on June 1, 2017, but the mandate did not
MELVILLE V. SHINN 13
extend the time for Melville to file a motion for
reconsideration. The extension for filing that motion had
already run out. Melville could not properly seek relief after
that date. We therefore conclude that Melville’s post-
conviction application ceased to be pending on June 1, 2017.
III. Conclusion
As explained above, Melville’s convictions became final
on September 29, 2014. Because he initiated post-conviction
proceedings three days earlier, on September 26, 2014,
statutory tolling began immediately, and the clock did not
start on the one-year limitations period under AEDPA until
June 2, 2017, the day after his post-conviction application
ceased to be pending. 2 Melville filed his habeas petition on
June 1, 2018. That was the last day he could timely file his
federal habeas petition, but it was timely. We therefore
reverse the district court’s order dismissing the petition as
untimely and remand for further proceedings.
REVERSED and REMANDED.
2
See Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001)
(concluding that under AEDPA, the limitations period begins to run on
the date after the triggering event pursuant to Federal Rule of Civil
Procedure 6(a)).