                 FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


BRIAN JOSEPH MCMONAGLE,                    No. 12-15360
              Petitioner-Appellant,
                                             D.C. No.
                  v.                      2:11-cv-02115-
                                               GGH
DON L. MEYER, Chief Probation
Officer, Sacramento County,
                Respondent-Appellee.         OPINION


      Appeal from the United States District Court
         for the Eastern District of California
    Gregory G. Hollows, Magistrate Judge, Presiding

             Argued and Submitted En Banc
        June 18, 2015—San Francisco, California

                  Filed October 6, 2015

    Before: Sidney R. Thomas, Chief Judge and Harry
 Pregerson, Barry G. Silverman, M. Margaret McKeown,
 Kim McLane Wardlaw, Richard R. Clifton, Consuelo M.
Callahan, Milan D. Smith, Jr., Morgan Christen, Jacqueline
  H. Nguyen and Michelle T. Friedland, Circuit Judges.

                Opinion by Judge Nguyen
2                    MCMONAGLE V. MEYER

                           SUMMARY*


                         Habeas Corpus
    The en banc court reversed the district court’s judgment
dismissing as untimely under the Antiterrorism and
Effective Death Penalty Act Brian McMonagle’s habeas
corpus petition challenging his California misdemeanor
conviction for driving while under the influence of alcohol,
and remanded for the district court to consider the petition
on the merits.
    The en banc court held that because California declares
misdemeanor convictions to be final immediately upon the
California Court of Appeal’s denial of a petition to accept
transfer of a case, McMonagle’s misdemeanor conviction
became final for AEDPA’s purposes 90 days after the
Court of Appeal’s denial of his request for such a transfer,
and that his federal habeas petition, filed more than a year
after the end of the 90-day period, was, even allowing
statutory tolling for the 36-day period in which his
application for state habeas relief was pending, untimely
under AEDPA.
   The en banc court overruled Larche v. Simons, 53 F.3d
1068 (9th Cir. 1995), which held that California
misdemeanants must seek habeas relief from the California
Supreme Court in order to fully exhaust their claims. The
en banc court explained that Larche created undue


    *
   This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                  MCMONAGLE V. MEYER                       3

confusion, particularly in the wake of AEDPA’s enactment,
and unduly restricted California’s ability to dictate its own
systems of appellate review.
     The en banc court concluded that McMonagle, who
relied on Larche to fully exhaust his state remedies before
seeking federal habeas review, is entitled to equitable
tolling under the particular circumstances of this case.


                        COUNSEL

Charles Marchand Bonneau, II (argued), Sacramento,
California, for Petitioner-Appellant.

Brian G. Smiley (argued), Supervising Deputy Attorney
General, Office of the California Attorney General,
Sacramento, Californias, for Respondent-Appellee.


                        OPINION
NGUYEN, Circuit Judge:
   Brian McMonagle seeks federal habeas review of a
California misdemeanor conviction for driving while under
the influence of alcohol. The district court dismissed
McMonagle’s petition as untimely under the Antiterrorism
and Effective Death Penalty Act (“AEDPA”), and he
appealed.    In order to determine the timeliness of
McMonagle’s petition, we must decide when his
misdemeanor conviction became final for the purposes of
AEDPA’s one-year limitation period.
   This timeliness inquiry is complicated by the overlap of
California’s procedures for direct review of misdemeanors,
which often ends at the Court of Appeal, and our decision
4                 MCMONAGLE V. MEYER

in Larche v. Simons, 53 F.3d 1068 (9th Cir. 1995), which
requires California misdemeanants to exhaust their state
remedies by filing a habeas petition with the California
Supreme Court. Larche, however, was decided before
AEDPA’s enactment and dealt with exhaustion of state
court remedies, not finality for purposes of AEDPA. We
nevertheless recognize that Larche creates needless
confusion for California misdemeanants seeking federal
habeas review, and we now overrule it.
    Here, relying on Larche, McMonagle fully exhausted
his state remedies before seeking federal habeas review,
and filed his habeas petition outside of AEDPA’s
limitations period. Although his petition is untimely, we
conclude under the particular circumstances of this case
that he is entitled to equitable tolling. We therefore reverse
and remand for the district court to review his petition on
the merits.
                              I
    On November 21, 2008, a California jury convicted
Brian McMonagle of two misdemeanor offenses of driving
while under the influence of alcohol (“DUI”) and driving
with a blood alcohol level of .08% or higher. The jury also
found that McMonagle’s blood alcohol level was .15% or
more, a relevant sentencing factor. See Cal. Vehicle Code
§ 23578. McMonagle followed the state procedures for
appellate review of misdemeanor convictions. First, he
appealed to the appellate division of the Superior Court of
California rather than the California Court of Appeal. On
December 18, 2009, the appellate division reversed
McMonagle’s conviction for driving with a blood alcohol
level of .08% or more and the jury’s finding that his blood
alcohol level was .15% or more. It concluded that the trial
court violated McMonagle’s rights under the Confrontation
                  MCMONAGLE V. MEYER                        5

Clause when it admitted the results of the blood alcohol
analysis without requiring the analyst who prepared the
report to testify. The court affirmed McMonagle’s DUI
conviction, however, in light of evidence beyond his blood
alcohol level indicating that he had driven while
intoxicated.
    McMonagle then requested that the appellate division
certify his case to the California Court of Appeal for further
review. See Cal. R. Ct. 8.1005. Following the appellate
division’s denial of certification on January 19, 2010,
McMonagle timely petitioned the Court of Appeal to accept
transfer of his case. See Cal. R. Ct. 8.1006. On February
11, 2010, the Court of Appeal denied the transfer. On April
7, 2010, McMonagle filed a habeas petition with the
California Supreme Court, which rejected his petition on
June 17, 2010.
    On August 10, 2011, McMonagle filed a petition for
federal habeas relief in the Eastern District of California.
The district court granted the State’s motion to dismiss,
finding the petition to be untimely filed under AEDPA.
The district court concluded that direct review of
McMonagle’s conviction in the California courts ended on
February 11, 2010—when the Court of Appeal denied
McMonagle’s transfer request.       Thus, his conviction
became final on May 12, 2010, the close of the ninety-day
period in which McMonagle could have sought further
review of the decision from the United States Supreme
Court—and AEDPA’s one-year statute of limitations began
to run the following day. Even allowing McMonagle
statutory tolling under 28 U.S.C. § 2244(d)(2) for the 36-
day period in which his application for state habeas relief
was pending, under the district court’s calculation, his
August 10, 2011 petition for federal habeas relief was still
untimely.
6                  MCMONAGLE V. MEYER

    McMonagle appealed to this court, and a divided three-
judge panel reversed, finding McMonagle’s petition to be
timely filed. McMonagle v. Meyer, 766 F.3d 1151, 1158
(9th Cir. 2014). A majority of the nonrecused active judges
on our court then voted to rehear McMonagle’s case en
banc. McMonagle v. Meyer, 782 F.3d 554 (9th Cir. 2015).
                                II
    We have jurisdiction under 28 U.S.C. § 2253, and
review “[t]he timeliness of the federal habeas petition . . .
de novo.” Porter v. Ollison, 620 F.3d 952, 958 (9th Cir.
2010).
                               III
      California misdemeanor appeals follow a different track
than do felony appeals. By statute, misdemeanants appeal
their convictions to the appellate division of the Superior
Court in which they were convicted. Cal. Pen. Code
§ 1466. If the appellate division affirms the conviction, the
misdemeanant may then request certification of the case for
transfer to the California Court of Appeal for further
review. Cal. R. Ct. 8.1005(b). “The appellate division may
certify a case for transfer . . . if it determines that transfer is
necessary to secure uniformity of decision or to settle an
important question of law.” Cal. R. Ct. 8.1005(a)(1). If
certification is denied, the misdemeanant may petition the
Court of Appeal directly to accept transfer of the case. Cal.
R. Ct. 8.1002, 8.1006. Court rules similarly direct the
Court of Appeal to consider whether transfer would “secure
uniformity . . . or . . . settle an important question of law.”
Cal. R. Ct. 8.1002. “If the Court of Appeal denies transfer
of a case from the appellate division of the superior court
. . . the denial is final immediately,” Cal. R. Ct. 8.1018(a),
and the misdemeanant may not appeal the denial to the
California Supreme Court, Cal. R. Ct. 8.500(a)(1).
                  MCMONAGLE V. MEYER                       7

    Here, we must decide when within the state’s
misdemeanor review process McMonagle’s conviction
became final for purposes of AEDPA: when his request for
transfer to the state Court of Appeal was denied or when
the California Supreme Court denied his state habeas
petition. We conclude that because California declares
misdemeanor convictions to be final immediately upon the
denial of transfer by the Court of Appeal, direct review of
McMonagle’s misdemeanor conviction ended at this point.
Therefore, his conviction became final for AEDPA’s
purposes ninety days after the denial of the transfer.
                             A
    “As one of its many reforms, AEDPA instituted a one-
year limitations period for collateral attacks by federal and
state prisoners.” United States v. Garcia, 210 F.3d 1058,
1059 (9th Cir. 2000). The relevant provision reads as
follows:
       A 1-year period of limitation shall apply to
       an application for a writ of habeas corpus by
       a person in custody pursuant to the judgment
       of a State court. The limitation period shall
       run from . . . [t]he date on which the
       judgment became final by the conclusion of
       direct review or the expiration of the time
       for seeking such review.
28 U.S.C. § 2244(d)(1)(A) (emphasis added). For AEDPA
purposes, “direct review” includes the ninety-day period in
which the appellant may petition for a writ of certiorari
from the United States Supreme Court. Bowen v. Roe,
188 F.3d 1157, 1158–59 (9th Cir. 1999). It does not,
however, include time that an appellant seeks further
review of his conviction through collateral proceedings.
“The time during which a properly filed application for
8                 MCMONAGLE V. MEYER

State post-conviction or other collateral review . . . is
pending” is tolled during the running of the statute of
limitations, 28 U.S.C. § 2244(d)(2), but it does not delay
the start of the limitations period. See White v. Klitzkie,
281 F.3d 920, 924 (9th Cir. 2002) (“[T]he question of when
a conviction becomes final, so as to start the running of the
statute of limitations under § 2244(d)(1)(A), is
fundamentally different from the question of how long the
statute of limitations is tolled under § 2244(d)(2).”).
    “[T]he question of when a conviction becomes ‘final by
the conclusion of direct review,’ thus triggering the one-
year statute of limitations under AEDPA, is a question of
federal law.” Summers v. Schriro, 481 F.3d 710, 714 (9th
Cir. 2007) (quoting 28 U.S.C. § 2244(d)) (citation omitted);
see also Clay v. United States, 537 U.S. 522, 531 (2003)
(noting that, for AEDPA’s purposes, “finality . . . is to be
determined by reference to a uniform federal rule.”). But
this federal question is “heavily informed” by looking to
state law to determine when direct review in state court has
ended. Schriro, 481 F.3d at 714; see also Gonzalez v.
Thaler, 132 S. Ct. 641, 654–55 (2012) (looking to “state-
court filing deadlines when petitioners forgo state-court
appeals” to determine finality); Wixom v. Washington,
264 F.3d 894, 897-98 (9th Cir. 2001) (looking to
Washington law to determine when direct review of a
Washington conviction concluded).
    In this case, we look to California law to determine
when direct review of a California misdemeanor conviction
concludes. McMonagle appealed his conviction through
the proper channels, appealing first to the appellate division
of the Superior Court, then requesting certification to the
Court of Appeal, and finally, directly asking the Court of
Appeal to order transfer of his case. The Court of Appeal
denied transfer on February 11, 2010. Because California
                  MCMONAGLE V. MEYER                        9

law makes clear that such denial is “final immediately,”
Cal. R. Ct. 8.1018(a), and no further appeal to the
California Supreme Court is available, Cal. R. Ct.
8.500(a)(1), direct review of his conviction ended at this
point. McMonagle’s conviction therefore became “final”
for AEDPA’s purposes on May 12, 2010, the close of the
ninety-day period in which he could have sought a writ of
certiorari from the United States Supreme Court, see
Bowen, 188 F.3d at 1159, and AEDPA’s one-year statute of
limitations began to run the following day. Granting him
statutory tolling under § 2244(d)(2) for the 36-day period in
which his application for state habeas relief was pending,
McMonagle’s deadline to file for federal habeas relief was
June 17, 2011. McMonagle’s August 10, 2011 petition was
therefore untimely by almost two months.
    With respect to the triggering of AEDPA’s one-year
limitation period, it is of no significance that McMonagle
filed a state habeas petition seeking collateral review of his
conviction. As noted, he is entitled to statutory tolling
during the pendency of his state habeas petition, see
28 U.S.C. § 2244(d)(2), but the filing of collateral
proceedings does not delay the date upon which his
conviction became final for the purposes of triggering
AEDPA’s statute of limitations. Thus, we conclude that
McMonagle’s petition was untimely.
                              B
    McMonagle argues that Larche v. Simons, 53 F.3d 1068
(9th Cir. 1995), dictates that direct review of his conviction
ended when the California Supreme Court rejected his
habeas petition, not when the Court of Appeal declined to
accept transfer of his case.
   In Larche, we held that California misdemeanants must
seek habeas relief from the California Supreme Court in
10                MCMONAGLE V. MEYER

order to fully exhaust their claims. Larche, 53 F.3d at
1071. Larche, like McMonagle, was convicted of two
misdemeanors by a California jury. Id. at 1069. His
petition for federal habeas relief was dismissed by the
district court due to his failure to exhaust state court
remedies. Id. Relying on prior decisions that required
petitioners to pursue direct appeals all the way to a state’s
supreme court, even when such appeals were discretionary,
we held that “the California Supreme Court had to be given
at least one opportunity to review [an] appellant’s claims”
before we could consider federal habeas relief. Id. at 1071.
Otherwise, “we would deprive the California Supreme
Court of any opportunity to rectify constitutional wrongs
committed by its lower courts in misdemeanor cases.” Id.
McMonagle correctly reads Larche as having required him
to file a state habeas petition in order to exhaust his state
court remedies under 28 U.S.C. § 2254(b)(1)(A).
    Larche, however, was decided before AEDPA put in
place a statute of limitations for federal habeas petitions,
and thus unsurprisingly discusses only exhaustion. But
exhaustion and finality are distinct concepts for purposes of
AEDPA. Exhaustion occurs “at the end of state-court
review,” Lawrence v. Florida, 549 U.S. 327, 333 (2007),
which can include collateral review for certain types of
claims, see, e.g., Martinez v. Ryan, 132 S. Ct. 1309, 1313
(2012) (noting that Arizona requires ineffective assistance
of counsel claims to be raised in state collateral
proceedings). “Finality occurs when direct state appeals
have been [completed] and a petition for writ of certiorari
from [the United States Supreme Court] has become time
barred or has been disposed of.” Greene v. Fisher, 132 S.
Ct. 38, 44 (2011) (emphasis added). It is when a direct
appeal becomes final that AEDPA’s 1-year statute of
limitations begins running.
                  MCMONAGLE V. MEYER                      11

     Although Larche did not discuss finality, it created
undue confusion for misdemeanant habeas petitioners like
McMonagle, particularly in the wake of AEDPA’s
enactment, because some of Larche’s language conflated
collateral and direct review of misdemeanors.             For
example, Larche wrongly equated the opportunity for
habeas review of misdemeanors in the California Supreme
Court with the requirement that felony direct appeals be
appealed all the way to that same court. See 53 F.3d at 1071
(citing McNeeley v. Arave, 842 F.2d 230, 231 (9th Cir.
1988), and Tamapua v. Shimoda, 796 F.2d 261, 262 (9th
Cir. 1986), abrogated on other grounds by Duncan v.
Henry, 513 U.S. 364 (1995)). This suggested that
misdemeanor habeas petitions like McMonagle’s were
properly construed not as collateral review proceedings but
as a de facto part of the direct review process. This is not
how California courts treat such petitions. See Marks v.
Superior Court, 38 P.3d 512, 521 (Cal. 2002) (emphasizing
that “collateral review by habeas corpus is not a reiteration
of or substitute for an appeal”).
    Moreover, Larche’s requirement that misdemeanants
seek review of their claims in the California Supreme Court
before seeking federal habeas relief unduly restricted
California’s ability to dictate its own systems of appellate
review. The exhaustion doctrine “turns on an inquiry into
what procedures are ‘available’ under state law,” and “there
is nothing in the exhaustion doctrine requiring federal
courts to ignore a state law or rule providing that a given
procedure is not available.” O’Sullivan v. Boerckel,
526 U.S. 838, 847–48 (1999). Although review by a state’s
highest court may still be “available” for exhaustion
purposes even when it is discouraged or subject to
discretionary acceptance, see, e.g., id. at 845; Gatlin v.
Madding, 189 F.3d 882, 888 (9th Cir. 1999), the key
question is whether the type of review at issue forms part of
12                   MCMONAGLE V. MEYER

the state’s “ordinary appellate review procedure.”
O’Sullivan, 526 U.S. at 847. And for challenges to
misdemeanor convictions not heard on the merits by the
Court of Appeal, review by the California Supreme Court
falls decidedly outside of the state’s ordinary appellate
review. See Cal. R. Ct. 8.1018(a); Cal. R. Ct. 8.500(a)(1);
see also O’Sullivan, 526 U.S. at 844 (stating that “state
prisoners do not have to invoke extraordinary remedies
when those remedies are alternatives to the standard review
process”). California misdemeanants therefore should not
be required to file a habeas petition before the state
Supreme Court in order to exhaust state court remedies for
claims already considered and rejected on direct review.
Because Larche holds otherwise, we now overrule it.
   Having overruled Larche, going forward exhaustion
and finality for misdemeanors will largely coincide at the
California Court of Appeal. When the Court of Appeal
denies transfer, the petitioner will have exhausted his state
court remedies,1 and AEDPA’s limitations period will
begin to run ninety days later or upon the resolution of a


 1
    We note that certain types of claims must be raised and exhausted
via state collateral proceedings. For example, because ineffective
assistance of counsel claims often involve extra-record issues,
California considers these claims to be “more appropriately made in . . .
petition[s] for habeas corpus” and not on direct appeal. See People v.
Pope, 590 P.2d 859, 867 (Cal. 1979) (en banc), abrogated in part on
other grounds by People v. Ledesma, 729 P.2d 829, 868–69 (Cal. 1987)
(en banc). But McMonagle need not file such a petition because he
raises only claims that were already considered and rejected on direct
review, which the California courts decline to reconsider in habeas
proceedings. See In re Harris, 855 P.2d 391, 395–98 (Cal. 1993).
                  MCMONAGLE V. MEYER                       13

petition for writ of certiorari by the United States Supreme
Court, if one is filed.
                             IV
     Although we conclude that McMonagle’s habeas
petition was filed outside of AEDPA’s one-year limitation
period, that conclusion does not end our inquiry. Equitable
tolling may be available “[w]hen external forces, rather
than a petitioner’s lack of diligence, account for the failure
to file a timely claim.” Miles v. Prunty, 187 F.3d 1104,
1107 (9th Cir. 1999). “Equitable principles dictate that we
toll AEDPA’s statute of limitations in the rare case where a
petitioner relies on our legally erroneous holding in
determining when to file a federal habeas petition.” Harris
v. Carter, 515 F.3d 1051, 1057 (9th Cir. 2008). In light of
McMonagle’s reliance on Larche and the circumstances in
this case, “equitable principles dictate that AEDPA’s one-
year statute of limitations be tolled here.” See Townsend v.
Knowles, 562 F.3d 1200, 1206 (9th Cir. 2009), abrogated
on other grounds by Walker v. Martin, 562 U.S. 307
(2011). We reverse and remand for the district court to
consider McMonagle’s habeas petition on the merits.
   REVERSED AND REMANDED.
