Anthony (Tony) Gaston v. Anna Ramirez Palmer

387 F.3d 1004 Anthony (Tony) GASTON, Petitioner-Appellant, v. Anna Ramirez PALMER, Respondent-Appellee. No. 01-56367. United States Court of Appeals, Ninth Circuit. Submitted September 10, 2003. * Withdrawn from Submission September 22, 2003. Resubmitted October 7, 2004. Filed October 28, 2004. COPYRIGHT MATERIAL OMITTED Gerson Simon, Los Angeles, CA, for the petitioner-appellant. Anthony (Tony) Gaston, California Medical Facility, Vacaville, CA, for the petitioner-appellant. Kyle Brodie, Michelle J. Pirozzi, AGCA—Office of the California Attorney General, Los Angeles, CA, for the respondent-appellee. Appeal from the United States District Court for the Central District of California; Nora M. Manella, District Judge, Presiding. D.C. No. CV-00-06612-NM(Mc). Before: KLEINFELD, WARDLAW, and W. FLETCHER, Circuit Judges. WILLIAM A. FLETCHER, Circuit Judge. 1 Anthony Gaston, a California prisoner, seeks review of the district court's dismissal of his petition for a writ of habeas corpus under 28 U.S.C. § 2254 . The district court held that Gaston's petition was time-barred under the one-year statute of limitations of the Antiterrorism and Effective Death Penalty Act…

Anthony Gaston, a California prisoner, seeks review of the district court’s dismissal of his petition for a writ of habeas corpus under 28 U.S.C. § 2254 . The district court held that Gaston’s petition was time-barred under the one-year statute of limitations of the Antiterrorism and Effective Death Penalty Act (“AEDPA”). 28 U.S.C. § 2244 (d)(1). Gaston concedes that he filed his petition more than one year after the statutory period began to run, but he makes three arguments why the statute should be tolled. We agree with his third argument, and hold, on the facts of this case, that Gaston is entitled to tolling during the time his state court ha-beas applications were pending. “Pending,” in this context, includes the intervals between the dismissal of one state applica *1007 tion and the filing of the next one. Because Gaston is allowed tolling for the time his state court applications were pending, his federal habeas petition is timely. We therefore reverse the district court’s dismissal of his petition and remand for further proceedings.

I. Background

Gaston was found guilty by a Los Ange-les County Superior Court jury of one count of first degree murder in 1994, and…

dissenting.

I concur in parts I, 11(A), and 11(B), but respectfully dissent as to part 11(C). There are two things wrong with tolling Gaston’s one year limitations period. First, he was not pursuing anything like the appellate exhaustion process contemplated by AEDPA, when he randomly filed petitions up, down and sideways in the California courts, instead of starting in a lower court and then going to a higher court. Second, his delays between petitions were too long to justify counting non-pending petitions as pending for AEDPA purposes.

Gaston started in the middle, at the California Court of Appeal, went down to the Superior Court, and then jumped up to the Supreme Court. Then he went through a complete second round. That is not the proper course of exhaustion that justifies tolling.

Carey v. Saffold allows tolling for the “intervals between a lower court decision and the filing of a new petition in a higher court.” 1 That’s not what Gaston did. In Saffold, the Supreme Court recognized that a petitioner must “ ‘invok[e] one complete round of the State’s established appellate review process’ ” 2 to exhaust his claim. This general principle presented a problem because of…