Jackery B. White v. Robert Klitzkie

281 F.3d 920 Jackery B. WHITE, Petitioner, v. Robert KLITZKIE, Respondent. No. 00-16347. United States Court of Appeals, Ninth Circuit. Argued and Submitted November 6, 2001. Filed February 20, 2002. Elizabeth A. Fisher, Honolulu, HI, for the petitioner. Tricia R.S. Ada, Deputy Attorney General, Hagatna, GU, for the respondent. Appeal from the United States District Court for the District of Guam; John S. Unpingco, District Judge, Presiding. D.C. No. CV-00-00011-JSU. Before THOMPSON, O'SCANNLAIN, and BERZON, Circuit Judges. Opinion by Judge THOMPSON; Dissent by Judge BERZON DAVID R. THOMPSON, Circuit Judge. 1 Jackery B. White, a prisoner serving a sentence imposed by the Territory of Guam, appeals the district court's dismissal of his petition for a writ of habeas corpus filed under 28 U.S.C. § 2254 . The district court determined that White's petition was procedurally barred and unexhausted, and denied his request for a certificate of appealability. We granted a certificate of appealability, limited to the issues of "whether the district court properly dismissed the petition based on failure to exhaust and procedural default." 2 In advance of oral argument, it became…

Opinion by Judge THOMPSON; Dissent by Judge BERZON

Jackery B. White, a prisoner serving a sentence imposed by the Territory of Guam, appeals the district court’s dismissal of his petition for a writ of habeas corpus filed under 28 U.S.C. § 2254 . The district court determined that White’s petition was procedurally barred and unex-hausted, and denied his request for a certificate of appealability. We granted a certificate of appealability, limited to the issues of “whether the district court properly dismissed the petition based on failure to exhaust and procedural default.”

In advance of oral argument, it became apparent that there was a threshold issue of whether White’s habeas petition was *922 barred by the one-year statute of limitations under 28 U.S.C. § 2244 (d), a ground asserted by the respondent in the district court and in this court. We asked for and received from the parties supplemental briefing on that issue. The issue was also fully explored at oral argument.

Although the statute of limitations issue was not included in the certificate of appealability, we can affirm the district court on any ground supported by the record. See Franklin v. Terr, 201 F.3d 1098 ,…

dissenting:

Although the majority’s statutory construction is certainly plausible, I believe that, on balance, another interpretation is more faithful to the statutory language and structure as a whole, and results in a more sensible overall statutory scheme. I therefore respectfully dissent.

1. I note at the outset that there are serious practical problems with cutting off the tolling period with the final state appeal. Where there is no petition for cer-tiorari filed, it works fine. But here, as the majority recognizes, there arguably was a timely petition for certiorari filed, with this court.

Leaving aside whether that petition was a proper one, let us suppose that it was, and that we granted it and set the case for hearing. According to the majority opinion, if we then did not decide the case on the merits within one year of the Guam Supreme Court decision, White would have had to file a separate habeas petition in federal district court. Thus, the same claims would be pending in two federal courts at once. The same would be the case in the more usual situation, where a petition for certiorari from the denial of an State application for post-conviction relief by the…