Appeal from the United States District Court for the Eastern District of California John A. Mendez, District Judge, Presiding D.C. No. 2:05-cv-01864-JAM-GGH
The opinion of the court was delivered by: Wallace, Senior Circuit Judge:
September 15, 2010-San Francisco, California
Before: J. Clifford Wallace and Sidney R. Thomas, Circuit Judges, and Richard Mills, Senior District Judge.*fn1
Petitioner-Appellant Derrick Lakey, a California state prisoner, appeals from the district court's denial of his petition for a writ of habeas corpus. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we dismiss the appeal because Lakey's habeas petition is time-barred under 28 U.S.C. § 2244(d) (1996).
The Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA) allows state prisoners only one year from the completion of the direct review process in state court to apply in federal court for a writ of habeas corpus. 28 U.S.C. § 2244(d)(1). The limitations period, however, is subject to both statutory tolling during the pendency of a properly filed state application for post-conviction relief, Holland v. Florida, 130 S. Ct. 2549, 2554 (2010), and to equitable tolling when a state prisoner pursues his federal rights diligently, but is prevented from filing a timely petition by some extraordinary circumstance, id. at 2562. Although Lakey filed his federal petition nearly three years after the state court direct review process ended, he contends that his petition qualifies for both statutory and equitable tolling.
Following a 1996 jury trial in state court, Lakey was convicted on one count of first-degree murder and two counts of attempted murder for his participation in a drive-by shooting in Stockton, California. After an unsuccessful direct appeal, Lakey's convictions became final for purposes of AEDPA's one-year statute of limitations on October 30, 2002. See 28 U.S.C. § 2244(d)(1)(A).
Over the next three years, Lakey initiated a series of unsuccessful state-court applications for post-conviction relief, including two rounds of state habeas petitions. Lakey began his first round of state petitions in California superior court on April 5, 2003. After that court denied relief, Lakey slowly worked his way to the Supreme Court of California, which rejected his first round of claims without comment on August 25, 2004. Thirty days later, on September 24, 2004, Lakey initiated a second round of state habeas proceedings. The state trial court rejected this second set of claims on November 5, 2004, and the state court of appeal summarily denied relief on December 22, 2004. Nearly one year later, on December 15, 2005, the Supreme Court of California denied Lakey's final petition for post-conviction review as untimely.
Lakey filed his federal petition in the Eastern District of California on September 15, 2005, which was 267 days after the state court of appeal summarily denied Lakey's second round of post-conviction relief and 90 days before the state supreme court rejected those claims on timeliness grounds. According to Lakey and the State, at least 352 days of AEDPA's 365-day limitations period had expired by the time Lakey filed his federal petition. One hundred fifty-seven days ran from the finalization of Lakey's direct appeal on October 30, 2002, and the filing of his initial state petition on April 5, 2003. The parties agree that another 165 days expired as a result of two lengthy filing delays that occurred during Lakey's first round of state habeas proceedings: an 84-day gap following the state trial court's denial of relief and an 81-day delay in seeking review from the state supreme court after Lakey's claims were denied by the court of appeal. See Chaffer v. Prosper, 592 F.3d 1046, 1048 (9th Cir. 2010) (refusing to toll AEDPA's statute of limitations when interval between California prisoner's state court filings is "substantially longer than" the 30 to 60 days typically afforded in other states). But we need address the issue of whether Lakey's unexplained 81 and 84-day delays substantially exceed the 30 to 60-day limits because in his brief and at oral argument, Lakey explicitly conceded that interval tolling is unavailable for the time that passed during his relatively lengthy filing ...