Calderon

Specially Concurring.

I concur in the majority opinion except for the second and third reasons given for applying equitable tolling in Part II C 5.

I agree with the majority that because the district court’s June 3, 1998 order stayed all proceedings other than the issue of Kelly’s sanity, that order prevented Kelly’s counsel from filing a habeas petition, and equitable tolling applies. I do not agree, however, that Kelly’s alleged mental incompetency equitably tolled the AEDPA’s one-year statute of limitations, and I would not reach the question whether equitable tolling applies as a result of the dismissal of Kelly’s habeas proceedings under the compulsion of the writ of mandamus issued in Kelly III.

Dissenting.

The majority opinion expresses clear disdain for the fact that the AEDPA’s statute of limitations bars Kelly from filing a first habe-as petition. Unfortunately, the statute of limitations is the law.

First, the majority finds that all five factors enumerated in Bauman v. United States Dist. Ct., 557 F.2d 650, 654-55 (9th Cir.1977), counsel against the issuance of mandamus. However, this is no ordinary mandamus action. Kelly TV was simply an action to enforce the mandate of Kelly III, a decision the District Court chose to ignore. It is horn-book law that mandamus “is available to a party who has prevailed in this Court if the lower court does not proceed to execute the mandate, or disobeys and mistakes its meaning.” Vendo Co. v. Lektro-Vend Corp., 434 U.S. 425, 427 , 98 S.Ct. 702 , 54 L.Ed.2d 659 (1978); see also Citizens National Trust & Savings Bank of Los Angeles v. United States Dist. Ct., 215 F.2d 799 , 800 (9th Cir.1954) (holding that a petition for mandamus is appropriate where the District Court “violated the plain provisions of our mandate”).

The real issue is whether the District Court did or did not violate this court’s mandate. While the majority deems…

with whom KOZINSKI, Circuit Judge, joins, Specially Concurring.

I agree with the majority that the AED-PA’s statute of limitations never should have been applied to Kelly because, under the analysis of Hohn v. United States, —- U.S. -, 118 S.Ct. 1969 , 141 L.Ed.2d 242 (1998), his habeas case was pending prior to the enactment of the AEDPA.

However, I write separately to express my disagreement with the majority’s unnecessary and wholesale rejection of res judicata in the habeas context. Both Congress and the Supreme Court have made it clear that in the absence of unusual circumstances, habeas petitioners cannot continue to litigate issues that have been or could have been litigated already in habeas proceedings. When Congress amended § 2244 of the habeas corpus statute in 1966, it specifically stated that “the purpose of these new subsections is to add to section 2244 of title 28, United States Code, provisions for a qualified application of the doctrine of res judicata.” S.Rep. No. 89-1797, at 2 (1966) (emphasis added). The Supreme Court has agreed. See Calderon v. Thompson, 523 U.S. 538 , 118 S.Ct. 1489, 1500-1501 , 140 L.Ed.2d 728 (1998). See also Schlup v. Delo, 513 U.S.…

Opinion by Judge TASHIMA; Concurrence by Judge THOMPSON; Concurrence by Judge SILVERMAN; Dissent by Judge HALL.

This case comes to us in an unusual procedural posture, complicated by an atypical history. Real party in interest Horace Edwards Kelly (Kelly) was sentenced to death in two separate cases by the California state courts. See People v. Kelly, 51 Cal.3d 931, 275 Cal.Rptr. 160 , 800 P.2d 516 (1990), cert. denied, 502 U.S. 842 , 112 S.Ct. 134 , 116 L.Ed.2d 101 (1991) (Kelly I); People v. Kelly, 1 Cal.4th 495, 3 Cal.Rptr.2d 677 , 822 P.2d 385 , cert. denied, 506 U.S. 881 , 113 S.Ct. 232 , 121 L.Ed.2d 168 (1992) (Kelly II). For most of the past several years, Kelly’s attorneys have been attempting to determine Kelly’s competency to assist them in preparing his first federal habeas corpus petitions. In Calderon v. United States Dist. Court, 127 F.3d 782 (9th Cir.1997), cert. denied, — U.S. -, 118 S.Ct. 1395 , 140 L.Ed.2d 653 (1998) (Kelly III), a three-judge panel granted the petitioner Warden’s (State) first petition for a writ of mandamus and preemptively held that Kelly’s first habeas petitions — insofar as they might challenge his convictions and death sentences — could…