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Terrell Cross v. D.K. Sisto

April 18, 2012

TERRELL CROSS,
PETITIONER-APPELLANT,
v.
D.K. SISTO, WARDEN, RESPONDENT-APPELLEE.



Appeal from the United States District Court for the Northern District of California William Alsup, District Judge, Presiding D.C. No. 3:07-cv-03941-WHA

The opinion of the court was delivered by: Bea, Circuit Judge:

FOR PUBLICATION

OPINION

Argued and Submitted August 8, 2011-San Francisco, California

Before: Diarmuid F. O'Scannlain, Susan P. Graber, and Carlos T. Bea, Circuit Judges.

Opinion by Judge Bea

OPINION

California prisoner Terrell Cross appeals the district court's denial of his petition for a writ of habeas corpus, claiming that the district court incorrectly interpreted an earlier ruling by the California Supreme Court on one of Cross's state habeas petitions. The district court read that ruling as denying Cross's state court relief because Cross's petition in state court had been untimely filed. The district court therefore denied Cross's federal petition on the ground that it was barred by the one-year statute of limitations under 28 U.S.C. § 2244(d)(1)(A), which tolls the statute of limitations during the pendency of a state court petition, but only if that state petition is properly and timely filed. This case requires us to determine whether, when the California Supreme Court denies a habeas petition with citations to Ex parte Swain, 209 P.2d 793, 796 (Cal. 1949), and People v. Duvall, 886 P.2d 1252, 1258 (Cal. 1995), the denial is necessarily based on untimeliness.

We agree with Cross that the answer is no and that the district court did not correctly apply California law in determining that the California Supreme Court's denial of Cross's petition with citation to Swain and Duvall meant that Cross's petition before the California Supreme Court was untimely. Because the federal statute of limitations is tolled during the pendency of timely filed state petitions, Cross's federal petition was therefore timely, and we reverse and remand to the district court to consider the petition on the merits.

I. Facts and Procedural History

In 2003, Terrell Cross was convicted in a California trial court of murder in the second degree and other associated crimes. Cross was sentenced to 54 years to life in prison. Cross unsuccessfully appealed to the California Court of Appeal and the California Supreme Court. The California Supreme Court denied Cross's petition for review on January 12, 2005.

Cross's direct appeal became final 90 days later, on April 12, 2005, when Cross's time to petition the United States Supreme Court for a writ of certiorari expired. Cross claims that his lawyer did not inform him of the California Supreme Court's denial of his petition for review. While Cross lists April 12, 2005, as the date of the final California decision in his habeas application to the California superior court, he claims that it was not until July 2005 that he became aware that his direct appeal was final.

On July 27, 2005, Cross filed a petition for habeas corpus with the Alameda County Superior Court, claiming ineffective assistance of trial counsel and ineffective assistance of appellate counsel. On August 8, 2005, the superior court denied Cross's petition for failure to state a prima facie case for relief.

On September 13, 2005, Cross filed a petition for habeas corpus with the California Court of Appeal, First Appellate District, citing the same grounds for relief as the petition in superior court. On September 14, 2005, the California Court ...


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