                  FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

ANTHONY (TONY) GASTON,                     No. 01-56367
            Petitioner-Appellant,              D.C. No.
              v.                            CV-00-06612-
ANNA RAMIREZ PALMER,                           NM(Mc)
           Respondent-Appellee.             Central District
                                             of California,
                                            Los Angeles
                                                ORDER
                                           WITHDRAWING
                                           OPINION AND
                                           DENYING THE
                                           PETITION FOR
                                            REHEARING
                                             EN BANC

                    Filed August 2, 2005

  Before: Andrew J. Kleinfeld, Kim McLane Wardlaw, and
            William A. Fletcher, Circuit Judges.

                          Order;
               Dissent by Judge O’Scannlain


                          ORDER

    This court’s opinion filed October 28, 2004 is hereby with-
drawn 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.
                             8879
8880                   GASTON v. PALMER
  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, 125 S.Ct. 1969 (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.



O’SCANNLAIN, Circuit Judge, with whom KLEINFELD,
GOULD, TALLMAN, CALLAHAN, and BEA, Circuit
Judges, join, dissenting from denial of rehearing en banc:

   We have frequently had difficulty interpreting the Antiter-
rorism 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, 545 U.S. ___, 2005 WL 1469153
(June 23, 2005). In this latest episode, the court holds that a
California habeas petitioner is entitled to statutory tolling dur-
ing the interval between the denial of 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. Saf-
fold, 536 U.S. 214 (2002), which limited interval tolling to
periods “between a lower court decision and a filing of a new
petition in a higher court.” Id. at 223 (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 habeas
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.
                       GASTON v. PALMER                    8881
2003) (concluding that statutory tolling is unavailable
between separate rounds of state habeas review).

   By refusing to rehear this case en banc, we forgo the oppor-
tunity to correct one of our own errors and again leave it to
the Supreme Court to undertake that task for us. I therefore
respectfully dissent from the denial of rehearing en banc.

                               I

   Anthony Gaston pursued state habeas relief by undertaking
a five-year odyssey through the California court system dur-
ing which he filed six habeas petitions in various state courts.
Gaston began in the Court of Appeal, filed his second petition
in the Superior Court, and then jumped up to the California
Supreme Court. Gaston thereafter returned to the Superior
Court, before refiling in the Court of Appeal and, yet again,
in the California Supreme Court.

   Gaston sought to establish the timeliness of this federal
habeas petition by arguing that AEDPA’s limitations period
was statutorily tolled throughout the course of his state court
filings. Gaston’s tolling argument was premised upon 28
U.S.C. § 2244(d)(2), which provides that “[t]he time during
which a properly filed application for State post-conviction or
other collateral review with respect to the pertinent judgment
or claim is pending shall not be counted toward any period of
limitation under this subsection.”

   A majority of the panel held that Gaston’s federal filing
was timely because his state petitions were “pending”—and
AEDPA’s limitations period was therefore tolled—throughout
the five-year duration of the state collateral review proceed-
ings, including during each of the intervals between Gaston’s
successive filings.

                               II

  Unlike nearly every other State, California does not require
a habeas petitioner to begin in the Superior Court and to pur-
8882                    GASTON v. PALMER
sue an appeal up to the state Supreme Court. Rather, Califor-
nia authorizes original petitions for habeas relief to be filed in
any state court. See Saffold, 536 U.S. at 221 (“California’s
collateral review system differs from that of other States in
that it does not require, technically speaking, appellate review
of a lower court determination.”). California habeas petition-
ers are thus able to file successive original petitions in non-
ascending levels of the state court system.

                                A

   In Saffold, the Supreme Court set forth the framework for
determining when a California habeas petition is “pending”
for purposes of 28 U.S.C. § 2244(d)(2). Saffold had pursued
state habeas relief by following an orderly progression from
the Superior Court to the Court of Appeal to the California
Supreme Court. Saffold, 536 U.S. at 217. He thereafter filed
a petition in federal district court. Id. at 218. The State argued
that Saffold was not entitled to statutory tolling during the
intervals between his successive state court filings and that his
federal petition was therefore untimely.

   The Supreme Court first concluded that in “typical ‘appeal’
States”—those in which a petitioner is required to begin in a
trial court and to appeal up to the state supreme court—a
habeas petition is “pending” during “the time between a lower
state court’s decision and the filing of a notice of appeal to a
higher state court.” Id. at 217, 221. The Court then considered
whether this principle could be applied to the petitions that
Saffold had filed in California’s atypical habeas system.

   Although Saffold’s second and third filings were “original
petitions” rather than “appeals,” these ascending petitions
were—as a practical matter—indistinguishable from tradi-
tional appellate filings. Indeed, the Court observed that “Cali-
fornia’s ‘original writ’ system . . . is not as special in practice
as its terminology might suggest” because “California’s
habeas rules lead a prisoner ordinarily to file a petition in a
                        GASTON v. PALMER                      8883
lower court first. . . . The upshot is that California’s collateral
review process functions very much like that of other States.”
Id. at 221-22.

   In light of these similarities between California’s habeas
procedures and those of “typical ‘appeal’ States,” the Court
held that “California’s system functions in ways sufficiently
like other state systems of collateral review to bring intervals
between a lower court decision and a filing of a new petition
in a higher court within the scope of the statutory word ‘pend-
ing.’ ” Id. at 223 (emphases added). Saffold was therefore
entitled to tolling during the intervals between his ascending
state court filings (as long as those intervals were of reason-
able duration).

                                B

   The Supreme Court premised Saffold’s entitlement to inter-
val tolling upon his pursuit of habeas relief in a manner com-
parable to that of a petitioner in a “typical ‘appeal’ State[ ].”
Unlike Saffold, however, Gaston did not seek state habeas
relief by following an orderly progression through ascending
courts. Rather, in a rollercoaster-like fashion, he started in the
Court of Appeal, went down to the Superior Court, jumped up
to the Supreme Court, and then descended back to the Supe-
rior Court. Even if we indulge the panel’s view that Gaston’s
first Superior Court petition merely remedied a procedural
deficiency in his initial Court of Appeal filing and that his
first Supreme Court petition commenced an overlapping
round of review that is irrelevant to Gaston’s tolling eligibil-
ity, it remains readily apparent that Gaston’s pursuit of state
habeas relief was not analogous to that of a petitioner in a
“typical ‘appeal’ State[ ].”

  When Gaston’s first Supreme Court filing is removed from
consideration (as the panel majority says it must), it becomes
evident that he filed two successive petitions in the Superior
Court. Statutory tolling is unavailable during the interval
8884                    GASTON v. PALMER
between those two consecutive Superior Court filings because
that period does not constitute an interval “between a lower
court decision and a filing of a new petition in a higher
court.” Saffold, 536 U.S. at 223 (emphases added). Under Saf-
fold, it is a prerequisite to a California petitioner’s eligibility
for statutory tolling that he pursue relief in a manner compara-
ble to a petitioner in a “typical ‘appeal’ State[ ].” Because
petitioners in typical States follow an ascending course
through the court system, Gaston controverted Saffold’s
requirements when he filed two successive petitions in the
same state court. Indeed, we explicitly recognized this limita-
tion on tolling eligibility in Delhomme, 340 F.3d at 820,
where we held that “each time a petitioner files a new habeas
petition at the same or a lower level, . . . the subsequent peti-
tion . . . triggers an entirely separate round of review.”

   In light of Saffold’s and Delhomme’s unequivocal pro-
nouncements, it is difficult to comprehend the panel majori-
ty’s declaration that it is “aware of no case suggesting that the
filing of a redundant petition, which is denied immediately,
deprives a petitioner of the right to interval tolling.” Amended
op. at 8997. Indeed, Saffold and Delhomme do more than
“suggest[ ]” that tolling is unavailable during such an interval;
they compel that result.

                                III

   Future panels that consider whether a California petitioner
is entitled to interval tolling will now be forced to choose
between two irreconcilable lines of precedent. Inevitably,
some panels will follow Gaston and hold that interval tolling
is available when a petitioner refiles in the same level of the
state court system; others will adhere to Saffold and Del-
homme and hold that tolling is not permitted under such cir-
cumstances.

   Rather than condone a decision that sows uncertainty and
that fosters a conflict with Supreme Court precedent, we
                      GASTON v. PALMER                   8885
should have reheard this case en banc, and I respectfully dis-
sent from our refusal to do so.
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