                                                                            FILED
                           **
                                NOT FOR PUBLICATION                          AUG 11 2011

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U.S . CO U RT OF AP PE A LS




                            FOR THE NINTH CIRCUIT



DAVID B. GRECU,                                  No. 08-17452

              Petitioner - Appellant,            D.C. No. 5:07-cv-00780-JF

  v.
                                                 MEMORANDUM *
M. S. EVANS, Warden,

              Respondent - Appellee.



                    Appeal from the United States District Court
                       for the Northern District of California
                     Jeremy D. Fogel, District Judge, Presiding

                        Argued and Submitted June 15, 2011
                             San Francisco, California

Before: SCHROEDER, RIPPLE, and BEA, Circuit Judges.

       David B. Grecu ('Grecu'), a California state prisoner, appeals the district

court's dismissal of his untimely 28 U.S.C. y 2254 habeas corpus petition

challenging his guilty plea and 10-year sentence for residential burglary and


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
            The Honorable Kenneth F. Ripple, Senior Circuit Judge for the
Seventh Circuit, sitting by designation.
cocaine possession. Grecu contends that he was entitled to both statutory and

equitable tolling and that, with the benefit of tolling, his federal petition indeed was

timely under the Antiterrorism and Effective Death Penalty Act ('AEDPA'). We

have jurisdiction under 28 U.S.C. y 2253. 'We review de novo the district court's

dismissal of a federal habeas petition on statute of limitations grounds.' Ferguson

v. Palmateer, 321 F.3d 820, 822 (9th Cir. 2003). We affirm.1

      The district court did not err in dismissing Grecu's habeas corpus petition as

barred by the statute of limitations. The AEDPA tolls the one-year limitation

period for the '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,' 28 U.S.C. y 2244(d)(2), provided that the petition is timely

filed under state law. Evans v. Chavis, 546 U.S. 189, 193 (2006). Under

California law, a petition is timely as long as it is filed within a reasonable length

of time, which requires that a petitioner justify any substantial delay in filing.

Velasquez v. Kirµland, 639 F.3d 964, 968 (9th Cir. 2011).

      In the present case, Grecu filed his state habeas petition in the California

Court of Appeal on March 13, 2006, roughly six months after his superior court



      1
        Because the parties are familiar with the facts of the case, we will repeat
them here only to the extent necessary to explain our decision.

                                            2
petition was denied on September 5, 2005. An unjustified six-month delay is

unreasonable under California law. Evans, 546 U.S. at 201. Although Grecu was

in administrative segregation from January 26, 2005 to January 24, 2006 for

threatening violence on another inmate, Grecu was represented by counsel who

filed the petition in the superior court. Indeed, according to Grecu, he was

'represented at all stages of every proceeding' in state court. As a result, Grecu's

counsel had access to all the relevant documents that were necessary to pursue

habeas relief in the state appellate court. Furthermore, Grecu's superior court

habeas petition is identical to the one he filed in the court of appeal. Under these

circumstances, Grecu's six-month delay is unreasonable under California law.2

      Grecu also contends the district court did not give Grecu an adequate

opportunity to address the timeliness issue, which was raised sua sponte by the

district court. Grecu points out that under Herbst v. Cooµ, 260 F.3d 1039 (9th Cir.

2001), a petitioner must be given 'an opportunity to respond to the argument for



      2
         Grecu contends he received notice of the state court's ruling on November
24, 2005, and that his delays was really 109 days. Even were one to accept that
argument, Grecu's unjustified 109-day delay is still unreasonable under California
law. See Velasquez, 639 F.3d at 968 (holding that a 91-day delay between the
superior court's denial of a petitioner's habeas petition and his filing of a habeas
petition in the California Court of Appeal and an 81-day delay between the court of
appeal's denial and the filing of a habeas petition in the California Supreme Court
were unreasonable under California law).

                                           3
dismissal.' Id. at 1043. Herbst is, however, distinguishable from the present case.

In Herbst, the district court did not give the petitioner notice of the issue of

timeliness and summarily denied the petitioner's motion for reconsideration

without considering the petitioner's justifications for the delay. Here, the district

court alerted the petitioner to the issue of timeliness, considered Grecu's

justifications for his delay, and found them to be inadequate. Furthermore, the

district court made this determination quite apart from its ruling under Federal

Rule of Civil Procedure 60(b), which requires an 'extraordinary reason' for relief.

It directly addressed the merits of Grecu's proposed justification for his delay,

stating 'Petitioner has not submitted adequate justification for his waiting six

months to file his petition in the appellate court.'

      AFFIRMED.




                                            4
                                                                             FILED
No. 08-17452, Grecu v. Evans                                                  AUG 11 2011

                                                                         MOLLY C. DWYER, CLERK
      RIPPLE, Circuit Judge, dissenting:                                   U.S . CO U RT OF AP PE A LS




      In my view, Mr. Grecu did not have an adequate opportunity to address the

timeliness issue, which was raised sua sponte by the district court. There also are

factual issues, left unresolved by the district court, which bear on the question

whether Mr. Grecu should be afforded equitable tolling. For these reasons, I would

reverse the judgment of the district court and remand for further proceedings.



                                           I

      A chronological review of the events in the district court reveals, I believe,

that Mr. Grecu never was apprised adequately of the procedural default at issue--

the timeliness of his petition to the state appellate court--nor consequently was he

afforded 'an opportunity to respond to the argument for dismissal.' Herbst v.

Cooµ, 260 F.3d 1039, 1043 (9th Cir. 2001) (quotation marµs omitted).



A. Timeline of District Court Proceedings

      (1)    On September 11, 2007, the court advised the parties that Mr. Grecu's

      habeas petition, at least superficially, appeared untimely. It therefore

      ordered the State to 'file with the Court and serve upon Petitioner, within

      sixty days of the date this order is filed, a motion to dismiss the petition as
untimely, or a notice that Respondent is of the opinion that a motion to

dismiss is unwarranted.' R.11 at 4. Mr. Grecu was advised that, if he

'wishes to oppose the motion to dismiss,' he must do so within thirty days

of his receipt of that motion. Id. (emphasis added).

(2)   On December 26, 2007, the State did file a motion to dismiss. The

State attacµed the timeliness of Mr. Grecu's petition on only one ground--the

lapse of time between the denial of his state petition by the California

Supreme Court and the filing of his federal petition. The State argued:

      [P]etitioner filed a petition for writ of habeas corpus in the
      superior court on August 23, 1999, one weeµ before the
      AEDPA limitations period was due to expire. That initiated a
      tolling period that paused the limitations-period clocµ until
      completion of that round of collateral review. See Carey v.
      Saffold, 536 U.S. 214 (2002). That round ended on January 17,
      2007, when the California Supreme Court denied the petition
      that was before it. See Cal. Rules of Court rule 8.532(b)(2)(C).
      From that date, petitioner had seven days left to file a timely
      petition for writ of habeas corpus in federal court. Petitioner
      did not sign the instant petition until 14 days later, on January
      31, 2007. Therefore, the petition is untimely and must be
      dismissed with prejudice.

R.14 at 3.

(3)   On January 16, 2008, Mr. Grecu filed his response to the State's

motion to dismiss. In his response, he focused on the ground for dismissal

urged by the State--the events surrounding the denial of his petition by the



                                    2
state supreme court and the filing of his federal habeas petition. He

explained that, on November 8, 2006, he 'was violently assaulted [and] was

forced to defend' himself; as a result, he was placed in administrative

segregation. ER 62. He further claimed that he 'was denied access to all

my legal worµ' and 'immediately contacted my lawyer and asµed him to file

my Northern District habeas petition as soon as the California Supreme

Court decides/denies my then pending habeas petition.' Id. He also

requested that the court

       consider the fact that during the time that my state habeas
       petition was pending in the California Supreme Court[,] I was
       confined in the Salinas Valley State Prison Solitary Housing
       Unit (ASU) 'this is a Green Wall prison' for the 7 months I
       was confined to (ASU) prison staff was refusing to provide me
       my legal worµ and my lawyer tooµ possession of my already
       prepared federal U.S. Northern District habeas petition two
       months before the California Supreme Court decided/denied my
       state petition and my counsel assured me in his letters to me
       that he will file my petition in the U.S. District federal Court as
       soon as he receive[d] California Supreme Court email
       notification . . . . My counsel had total control of my Federal
       Habeas Corpus Petition and separate [sic] volume of Exhibits, I
       was dependent on attorney Paul Couenhoven, to properly file
       my legal documents, it should be noted that this lawyer has
       represented me on and off for over ten years . . . .

Id. at 63.

(4)    On July 29, 2008, the State filed a reply to Mr. Grecu's submission.

See R.20. Again, it focused on the lapse of time between the denial of relief

                                    3
      by the state supreme court and the filing of the federal petition; it alleged no

      other basis for dismissal. It argued that, assuming the applicability of

      equitable tolling to the AEDPA's one-year statute of limitations,1 Mr. Grecu

      had not established his eligibility for such tolling. Specifically, he had not

      established that 'some extraordinary circumstance' stood in the way of his

      filing his federal application within a weeµ's time after his petition for state

      relief was denied. Id. at 2. According to the State, his counsel's failure to

      file his federal habeas petition on time 'constitute[d] the sort of ordinary

      attorney negligence that does not justify equitable tolling.' Id. (citing

      Lawrence v. Florida, 549 U.S. 327, 336-37 (2007)).

      (5)    On August 27, 2008, the district court granted the State's motion to

      dismiss, but not on the ground proffered by the State--that, following the

      denial of his petition by the state supreme court, Mr. Grecu had only one

      weeµ within which to file his federal habeas petition, but that he did not file

      within that time period and that he was not otherwise eligible for equitable

      tolling. Instead, the district court held that Mr. Grecu was not entitled to

      statutory tolling under 28 U.S.C. y 2244(d)(2) during the pendency of his



      1
         The State's filing predated the Supreme Court's decision in Holland v.
Florida, 130 S. Ct. 2549, 2560 (2010), in which it held, explicitly, that the one-year
statute of limitations under the AEDPA could be equitably tolled.
                                           4
state habeas petitions because his petition to the state appellate court was

untimely. The district court observed that '[t]he time between a lower court

decision and a filing of a new petition in a higher court is treated as time the

petition is 'pending' as long as the petitioner did not 'unreasonably delay' in

seeµing review.' ER 7 (citing Carey v. Saffold, 536 U.S. 214, 221-23

(2002)). The district court continued:

             In California, the limitation period 'remains tolled during
      the intervals between the state court's disposition of a state
      habeas petition and the filing of a petition at the next state
      appellate level.' Nino v. Galaza, 183 F.3d 1003, 1005 (9th Cir.
      1999) (emphasis added). After Carey, this means that a state
      habeas petition is pending 'in the absence of undue delay,'
      while a California petitioner 'complete[s] a full round of [state]
      collateral review' all the way to the California Supreme Court.
      Biggs v. Duncan, 339 F.3d 1045, 1048 (9th Cir. 2003) (citation
      and internal quotations marµs omitted).

Id. According to the district court, Mr. Grecu's petition to the state appellate

court was not timely, was not pending for purposes of 28 U.S.C. y 2244(d),

and, therefore, could not statutorily toll the federal limitations period.



(6)   On September 16, 2008, Mr. Grecu moved for reconsideration. He

argued that he could 'explain and justify' the six-month delay between the

denial of his superior court filing and his filing in the appellate court,

namely, he was in administrative segregation and unable to access his court

                                     5
      files during much of that period. R.28 at 1.

      (7)     On October 15, 2008, the district court denied Mr. Grecu's motion for

      reconsideration. It stated:

                      Petitioner fails to allege the provision of Rule 60(b)
              under which reconsideration is warranted; he alleges no new
              evidence that could not have been discovered with due
              diligence, no mistaµe, inadvertence, surprise or excusable
              neglect, no fraud by the adverse party, and no voiding of the
              judgment. Petitioner does not provide any extraordinary reason
              justifying relief. Petitioner's motions are based on his attempt
              to justify the six-month delay between his petitions in the state
              superior court and the state appellate court. This argument
              could have been made in Petitioner's opposition to
              Respondent's motion or in the petition, and Petitioner does not
              justify his waiting to do so until after Respondent's motion was
              granted. In addition, Petitioner has not submitted adequate
              justification for his waiting six months to file his petition in the
              appellate court. Accordingly, the motion for reconsideration is
              DENIED.

      ER 2.

      In sum, the court invited the State to file a motion to dismiss and invited

Mr. Grecu to respond to that motion. The State's motion was focused on

Mr. Grecu's failure to timely file his federal petition after the denial of relief by the

state supreme court. The State never argued that any of Mr. Grecu's state petitions

were untimely. Nevertheless, the district court dismissed Mr. Grecu's federal

petition on the ground that he was not entitled to statutory tolling during the

pendency of his state petitions because his petition to the state appellate court was

                                            6
untimely. Mr. Grecu, in his motion for reconsideration, asµed for an opportunity to

explain the delay that formed the basis for the district court's dismissal. However,

applying the stringent standards for reconsideration under Rule 60(b), the district

court denied Mr. Grecu's motion.



B. Adequacy of Mr. Grecu's Opportunity To Be Heard

      This case closely mirrors the situation we addressed in Herbst. There, the

district court dismissed sua sponte a habeas petition on timeliness grounds and, on

reconsideration, summarily affirmed its prior order. On appeal, we recognized the

district court's right to raise sua sponte the timeliness issue, but also recognized

that the right is subject to important procedural limitations: ''A habeas court must

give a petitioner notice of the procedural default and an opportunity to respond to

the argument for dismissal. When dealing with a pro se petitioner, the court must

maµe clear the procedural default at issue and the consequences for failing to

respond.'' 260 F.3d at 1043 (emphasis added) (quoting Boyd v. Thompson, 147

F.3d 1124, 1128 (9th Cir. 1998)). Furthermore, we made it clear in Herbst that 'a

motion for reconsideration is inadequate as an opportunity to respond.' Id. at

1044. Three considerations informed our conclusion. 'First, the bar that must be

cleared in order to succeed upon reconsideration is higher than pre-dismissal.' Id.



                                           7
'Second, the denial of a motion for reconsideration is reviewed only for an abuse

of discretion.' Id. Finally, 'an appeal from the denial of such a motion does not

raise the merits of the underlying judgment.' Id. 'Thus,' we concluded, 'a motion

for reconsideration is not an adequate substitute opportunity for a habeas petition

to respond when a district court sua sponte dismisses the petition on the basis of

untimeliness.' Id.

      Here, the district court did give Mr. Grecu notice that timeliness was a

concern and invited the State to file a motion to dismiss. The State, however,

never argued that the six-month gap between the disposition of the superior court

habeas petition and the filing of the appellate court petition rendered the petition

untimely. Consequently, Mr. Grecu never had an 'opportunity to respond to the

argument' that formed the basis for the district court's judgment. Id. at 1043

(quotation marµs omitted). Herbst, therefore, requires that the case be remanded to

give Mr. Grecu an adequate opportunity to address the ground on which the district

court based its dismissal--the timeliness of his petition to the state appellate court.2



      2
         I cannot agree with the majority that one statement in the district court's
denial of Mr. Grecu's motion to reconsider shows that the district court adequately,
and separately from its ruling under Federal Rule of Procedure 60(b), considered
and rejected Mr. Grecu's explanations for the delay in the state appellate court.
The statement on which the majority relies is embedded in a paragraph otherwise
dedicated to the standards under Rule 60(b) and to its determination that Mr. Grecu
is not entitled to relief under that rule. See supra at 6 (quoting ER 2).

                                            8
                                            II

       Even if Mr. Grecu is entitled to statutory tolling during the pendency of his

state petitions, he still needs the benefit of equitable tolling in order to save his

federal petition. Because it resolved the issue of statutory tolling against

Mr. Grecu, the district court did not reach this issue.

       Mr. Grecu argues that he is entitled to equitable tolling from the time the

California Supreme Court denied his petition until the date on which his federal

habeas petition was filed because he was in administrative segregation during this

time and unable to access his files. Having recognized that he may not be able to

file the materials himself, Mr. Grecu placed his federal petition in the hands of an

attorney, Paul Couenhoven, with instructions to file the petition after the state

supreme court issued its ruling. If Mr. Couenhoven were acting as Mr. Grecu's

counsel at the time, and if Mr. Couenhoven's failure to meet the federal deadline

resulted from a simple miscalculation of the statute of limitations, then Mr.

Couenhoven's failure would not constitute an 'extraordinary circumstance' that

justifies equitable tolling. See Lawrence v. Florida, 549 U.S. 327, 336-37 (2007)

('Attorney miscalculation is simply not sufficient to warrant equitable tolling,

particularly in the postconviction context where prisoners have no constitutional

right to counsel.'). However, the record is not clear with respect to the role Mr.



                                             9
Couenhoven played with respect to Mr. Grecu's state and federal habeas

proceedings. Mr. Couenhoven did not represent Mr. Grecu before the state

superior court, see ER 17 (listing 'Arthur Dudley, Attorney at Law,' for the

defendant). Mr. Grecu's filing in the state appellate court does not list an attorney

representing him. See Reply Br. 12.3 Mr. Grecu has referred to Mr. Couenhoven,

at times, as his lawyer; however, that simply may have been for ease of reference

as opposed to an affirmative (and now quite important) statement that

Mr. Couenhoven was representing Mr. Grecu for all purposes during state and

federal habeas proceedings. The extent of Mr. Couenhoven's role was not

explored by the district court, and it made no factual findings with respect to

whether Mr. Grecu was represented by counsel. Because the record contains

conflicting accounts of Mr. Couenhoven's role and responsibility with respect to

Mr. Grecu's state and federal habeas claims, I would remand the case to the district

court for further findings of fact on this issue.



                                      Conclusion

      3
         Mr. Grecu's counsel on appeal affirmatively states in his reply to the
State's 28(j) letter, filed with us on June 11, 2011, that Mr. Grecu 'was not
represented by counsel in connection with his petition to the Sixth Appellate
District.' Similarly, at oral argument, the State's attorney stated that Mr. Grecu
was not represented in state proceedings following the denial of his petition in
superior court.
                                            10
      I believe that the district court erred in resolving the statutory tolling issue

without first giving Mr. Grecu the opportunity to address the timeliness of his state

appellate petition. Moreover, I believe that genuine issues of fact preclude us from

resolving the issue of equitable tolling, specifically whether Mr. Grecu was

represented by counsel for purposes of his federal petition and, therefore, whether

the timeliness of the petition can be attributed to attorney error. For these reasons,

I would reverse the judgment of the district court and remand for further

proceedings. I therefore respectfully dissent.




                                           11
