Gregory Paul Biggs v. William Duncan, Warden

This case requires us to consider once again when an application for post-conviction relief will be considered “pending” in California state courts for purposes of 28 U.S.C. § 2244 (d)(2). Typically, a California petitioner brings a petition for a writ of habeas corpus in the state’s Superior Court. If it is denied, the petitioner will assert claims, most commonly the same ones, in a new petition in the California Court of Appeal. If the Court of Appeal denies the petition, he will assert claims in yet another new petition in, or petition for review by, the California Supreme Court. The United States Supreme Court has held that applications for state post-conviction relief filed in this fashion will be deemed “pending” for purposes of 28 U.S.C. § 2244 (d)(2), even during the intervals between the denial of a petition by one court and the fifing of a new petition at the next level, if there is not undue delay. Carey v. Saffold, 536 U.S. 214, 223-25 , 122 S.Ct. 2134 , 153 L.Ed.2d 260 (2002).

This case involves a different scenario. The petitioner completed one full round of petitions as described above. Then, several months later, he brought a new state habeas petition in…