Thomas James Welch v. Anthony C. Newland, Warden

267 F.3d 1013 (9th Cir. 2001) THOMAS JAMES WELCH, PETITIONER-APPELLANT, v. ANTHONY C. NEWLAND, WARDEN, RESPONDENT-APPELLEE. No. 00-15366 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted July 13, 2001--San Francisco, California Filed September 24, 2001 Counsel David M. Porter, Assistant Federal Defender, Sacramento, California, for the petitioner-appellant. Janis Shank McLean, Deputy Attorney General, Sacramento, California, for the respondent-appellee. Appeal from the United States District Court for the Eastern District of California Dennis L. Beck, Magistrate, Presiding Before: William C. Canby, Jr., Michael Daly Hawkins, and Ronald M. Gould, Circuit Judges. Opinion by Judge Canby; Concurrence by Judge Gould Canby, Circuit Judges. 1 Petitioner Thomas James Welch, a prisoner of the State of California, appeals from the federal district court's dismissal of his petition for a writ of habeas corpus. The district court determined that Welch had failed to satisfy the one-year statute of limitations for a state prisoner filing a federal habeas petition, see 28 U.S.C. §§ 2244 (d)(1), and therefore dismissed the petition as untimely. We conclude that…

Opinion by Judge CANBY; Concurrence by Judge GOULD.

Petitioner Thomas James Welch, a prisoner of the State of California, appeals from the federal district court’s dismissal of his petition for a writ of habeas corpus. The district court determined that Welch had failed to satisfy the one-year statute of limitations for a state prisoner filing a federal habeas petition, see 28 U.S.C. § 2244 (d)(1), and therefore dismissed the petition as untimely. We conclude that the period of limitations was tolled to an extent that rendered Welch’s petition timely. We accordingly reverse.

*1015 Background.

Welch is a California state prisoner serving a life sentence with the possibility of parole. He pled guilty to two counts of attempted murder, and his conviction became final on December 17, 1993. On January 12, 1994, Welch filed a petition for writ of habeas corpus in the California Superior Court, attacking the validity of his guilty plea. The court denied the petition on March 17, 1994. Over four years later, on August 22,1998, Welch submitted an original petition for writ of habeas corpus to the California Supreme Court. The petition raised claims that were different from the claim he…

concurring:

I concur in the opinion of the court because this case is controlled by Saffold v. Newland, 250 F.3d 1262 (9th Cir.2000). However, I am concerned that the application of the rule of Sajfold here operates substantially to frustrate the intent of Congress in imposing a one-year limitations period for state prisoners filing federal petitions for habeas corpus in AED-PA. Congress itself recognized tolling during the pendency of post-conviction or collateral review proceeding in state courts, explicitly providing: “The time during which a properly filed application for State post-conviction or other collateral review ... is pending shall not be counted toward any period of limitation.” 28 U.S.C. § 2244 (d)(2). In accord with Saf-fold, the court today holds that the final order of the California State Supreme Court must be viewed as if it addressed the appellant’s claims on the merits, and all time that went before while state proceedings were invoked, from start to end, and despite lengthy interim delays, is tolled. I agree Sajfold requires us to so hold.

At oral argument, counsel for appellant acknowledged that there is in effect no time limit whatsoever on state court…