Anthony (Tony) Gaston v. Anna Ramirez Palmer

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 *1033 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 application 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:

Gaston murdered a man in the summer of 1992, and was convicted of the murder in 1994. Yet now, more than a decade later, he is still litigating his case. Congress tried to put a stop to this sort of endless habeas litigation by imposing a one-year statute of limitations, which is reasonably tolled while a prisoner is exhausting his state remedies, but we have to a considerable extent gutted that statute. Today, we punch a new hole in the statute of limitations.

The majority has done a commendable job of figuring out what Gaston’s many pro se filings are trying to say. Part of the error in the majority opinion is compelled by circuit law that I think is mistaken. But the majority also makes what I believe is a new mistake. That mistake is treating the statute of limitations as tolled pending state exhaustion, when, instead of going “up the ladder” from the California Superi- or Court, to the Court of Appeal, to the Supreme Court, the petitioner goes up, down, and sideways. This new mistake puts today’s decision in tension, if not in conflict, with three other decisions of this court.

I concur in most of the majority opinion, and speak here only to the aspects of the…

417 F.3d 1030 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 August 2, 2005. 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 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 ("AEDPA"). 28…