Kenny Thompson v. Melissa Lea

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KENNY WARREN THOMPSON, 

Petitioner-Appellant, No. 09-55753 v. D.C. No. MELISSA LEA, Chief Deputy  2:08-cv-04290- Administrator of the California SJO-AGR Out of State Correctional Facility

OPINION

Unit, Respondent-Appellee.  Appeal from the United States District Court for the Central District of California S. James Otero, District Judge, Presiding

Argued and Submitted March 6, 2012—Pasadena, California

Filed June 7, 2012

Before: Harry Pregerson, Ronald M. Gould, and Richard C. Tallman, Circuit Judges.

Opinion by Judge Gould; Dissent by Judge Tallman COUNSEL

Geoffrey M. Jones, Fairfax, California, for the petitioner- appellant.

Rama R. Maline, Office of the California Attorney General, Los Angeles, California, for the respondent-appellee.

OPINION

GOULD, Circuit Judge:

California state prisoner Kenny Warren Thompson appeals the district court’s denial of his 28 U.S.C. § 2254 habeas cor- pus petition because of its conclusion that the petition was time-barred. We have jurisdiction under 28 U.S.C. § 2253. We reverse and remand.

[1]…

Opinion by Judge GOULD; Dissent by Judge TALLMAN.

OPINION

California state prisoner Kenny Warren Thompson appeals the district court’s denial of his 28 U.S.C. § 2254 habeas corpus petition because of its conclusion that the petition was time-barred. We have jurisdiction under 28 U.S.C. § 2253 . We reverse and remand.

The Antiterrorism and Effective Death Penalty Act (“AEDPA”) sets a one-year limitations period in which a state prisoner must file a federal habeas corpus petition. 28 U.S.C. § 2244 (d)(1). The limitations period runs from “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” Id. § 2244(d)(1)(A). The limitations period *1094 may be reset if a state court reopens direct review and a petitioner’s conviction becomes “again capable of modification through direct appeal to the state courts and to [the Supreme] Court on certiorari review.” Jimenez v. Quarterman, 555 U.S. 113, 120, 129 S.Ct. 681 , 172 L.Ed.2d 475 (2009).

Here, Thompson’s conviction initially became “final” on July 11, 2006, ninety days after the California Supreme Court denied his petition for review on direct appeal…

dissenting:

This appeal turns on how we interpret the effect of the California Supreme Court’s “grant and hold” order and its subsequent one-sentence order dismissing 112 petitions for review, including Thompson’s motion to recall the remittitur. 1 Because I do not interpret these orders as reopening direct review such that Thompson’s conviction and sentence were “again capable of modification through direct appeal,” Jimenez, 555 U.S. at 120, 129 S.Ct. 681 ,1 respectfully dissent.

The Supreme Court in Jimenez held that “where a state court grants a criminal defendant the right to file an out-of-time direct appeal during state collateral review, but before the defendant has first sought federal habeas relief, his judgment is not yet ‘final’ for purposes of § 2244(d)(1)(A).” 555 U.S. at 121 , 129 S.Ct. 681 . The Court also reaffirmed that the mere “possibility that a state court may reopen direct review ‘does not render convictions and sentences that are no longer subject to direct review nonfinal.’ ” Id. at 120 n. 4, 129 S.Ct. 681 (quoting Beard v. Banks, 542 U.S. 406, 412 , 124 S.Ct. 2504 , 159 L.Ed.2d 494 (2004)). In Jimenez , the Texas state court had actually granted the…