Thomas James Welch v. Thomas Carey, Warden

It is well-settled that the timeliness of a petition for post-conviction relief filed in state court is governed by state law. However, the circumstances under which a state petition will be deemed “pending” for purposes of 28 U.S.C. § 2244 (d)(2) is a federal question. In this case, the petitioner filed a state habeas petition in Kern County Superior Court raising one ground, lost, and pursued it no further. Four and a half years later, petitioner filed a second state habeas petition — this time in the California Supreme Court — raising different grounds. We hold, as a matter of federal law, that petitioner had no application for post-conviction relief “pending” during the four and a half year gap.

I

Background

A.

On December 29, 1989, Welch pleaded guilty in California Superior Court to two counts of attempted murder. He was sentenced to concurrent life terms with the possibility of parole.

Dissatisfied with the consequences of his plea, he moved in the trial court to withdraw it, but his motion was denied. On direct appeal, the California Court of Appeal set aside the judgment of conviction for the limited purpose of allowing him to renew his motion to withdraw.…