Anthony (Tony) Gaston v. Anna Ramirez Palmer

Order; Dissent by

ORDER WITHDRAWING OPINION AND DENYING THE PETITION FOR REHEARING EN BANC

ORDER

This court’s opinion filed October 28, 2004 [ 387 F.3d 1004 ] is hereby withdrawn and replaced with the attached Opinion. With the filing of the new opinion, the petition for rehearing en banc filed November 12, 2004 is DENIED. Judge Kle-infeld would grant it.

A judge of the court called for a vote on the petition for rehearing en banc. A vote was taken, and a majority of the active judges of the court failed to vote for en banc rehearing. Fed. R.App. P. 35(f).

We defer decision on the petition for rehearing by the panel until after the Supreme Court has rendered a decision in Chavis v. LeMarque, 382 F.3d 921 (9th Cir.2004), cert. granted, — U.S. -, 125 S.Ct. 1969 , 161 L.Ed.2d 855 (2005). The parties are directed to file simultaneous letter briefs with this court 30 days after the decision by the Supreme Court in Chavis , addressing the impact, if any, of that decision on this case.

dissenting from denial of rehearing en banc.

We have frequently had difficulty interpreting the Antiterrorism and Effective Death Penalty Act’s (“AEDPA”) one-year statute of limitations. See, e.g., Felix v. Mayle, 379 F.3d 612 (9th Cir.2004), rev’d, — U.S. -, 125 S.Ct. 2562 , 162 L.Ed.2d 582 (2005). In this latest episode, the court holds that a California habeas petitioner is entitled to statutory tolling during the interval between the denial of *1051 his petition by one state court and the filing of a new petition at the same level of the state court system.

The court’s decision runs squarely afoul of Carey v. Saffold, 536 U.S. 214 , 122 S.Ct. 2134 , 153 L.Ed.2d 260 (2002), which limited interval tolling to periods “between a loiver court decision and a filing of a new petition in a higher court.” Id. at 223 , 122 S.Ct. 2134 (emphases added). It also conflicts with our own holding in Delhomme v. Ramirez, 340 F.3d 817, 820 (9th Cir.2003), that a petitioner begins a separate round of review “each time [he] files a new habe-as petition at the same or a lower level” of the state court system. See also Biggs v. Duncan, 339 F.3d 1045, 1048 (9th Cir.2003) (concluding that statutory…

417 F.3d 1050 AnthonY (Tony) GASTON, Petitioner-Appellant, v. Anna Ramirez PALMER, Respondent-Appellee. No. 01-56367. United States Court of Appeals, Ninth Circuit. August 2, 2005. Gerson Simon, Los Angeles, CA, for Petitioner-Appellant. Anthony (Tony) Gaston, Vacaville, CA, pro se. Peggie Bradford Tarwater, Esq., AGCA—Office Of The California Attorney General (LA), Los Angeles, CA, for Respondent-Appellee. Before KLEINFELD, WARDLAW, and W. FLETCHER, Circuit Judges. 1 Order; Dissent by Judge O'SCANNLAIN. 2 ORDER WITHDRAWING OPINION AND DENYING THE PETITION FOR REHEARING EN BANC ORDER 3 This court's opinion filed October 28, 2004 is hereby withdrawn and replaced with the attached Opinion. With the filing of the new opinion, the petition for rehearing en banc filed November 12, 2004 is DENIED. Judge Kleinfeld would grant it. 4 A judge of the court called for a vote on the petition for rehearing en banc. A vote was taken, and a majority of the active judges of the court failed to vote for en banc rehearing. Fed. R.App. P. 35(f). 5 We defer decision on the petition for rehearing by the panel until after the Supreme Court has rendered a decision in Chavis v. LeMarque, 382 F.3d…