                       FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 EDUARDO HERNANDEZ,                                 No. 09-55306
          Petitioner-Appellant,
                                                     D.C. No.
                    v.                         2:07-cv-06754-PA-JC

 MARION SPEARMAN,
         Respondent-Appellee.                         OPINION


         Appeal from the United States District Court
            for the Central District of California
          Percy Anderson, District Judge, Presiding

                    Argued and Submitted
            February 3, 2014—Pasadena, California

                         Filed August 22, 2014

  Before: Harry Pregerson and Marsha S. Berzon, Circuit
  Judges, and Carol Bagley Amon, Chief District Judge.*

                     Opinion by Judge Berzon




 *
   The Honorable Carol Bagley Amon, Chief District Judge for the U.S.
District Court for the Eastern District of New York, sitting by designation.
2                   HERNANDEZ V. SPEARMAN

                           SUMMARY**


                          Habeas Corpus

    Reversing the district court’s dismissal of a federal habeas
corpus petition as untimely after the district court refused to
apply the “prison mailbox” rule to calculate the dates of the
petitioner’s filings, and remanding for further proceedings,
the panel held that the mailbox rule applies when a pro se
habeas petitioner gives his petition to a third party to mail
from within the prison.


                             COUNSEL

Tony Faryar Farmani (argued), Farmani, APLC, San Diego,
California, for Petitioner-Appellant.

Stephanie C. Brenan (argued), Deputy Attorney General;
James William Bilderback, II, Supervising Deputy Attorney
General, Office of the California Attorney General, Los
Angeles, California, for Respondent-Appellee.




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

                          OPINION

BERZON, Circuit Judge:

    Petitioner Eduardo Hernandez’s federal habeas corpus
petition was dismissed as untimely after the district court
refused to apply the “prison mailbox” rule to calculate the
dates of Hernandez’s filings. The district court found the rule
inapplicable because a prisoner other than Hernandez
delivered the petition to prison authorities for mailing to the
clerk of court. We hold that the prison mailbox rule applies
to such a circumstance and, accordingly, reverse the dismissal
of Hernandez’s petition.

                               I.

    Hernandez, a California prisoner, is serving two
indeterminate life terms and eighteen years for grand theft
and kidnapping in connection with a carjacking. After
unsuccessfully seeking post-conviction relief in state court,
he filed a pro se federal habeas corpus petition. The Warden
moved to dismiss Hernandez’s petition as untimely, alleging
that it was filed outside the Anti-Terrorism and Effective
Death Penalty Act’s (“AEDPA”) one-year filing deadline.
See 28 U.S.C. § 2244(d)(1).

    A magistrate judge issued a Report and Recommendation,
which agreed that the petition was untimely. First, in the
instances in which a prisoner other than Hernandez had
delivered Hernandez’s pro se petition for post-conviction
relief to prison authorities for mailing to the court, the
magistrate judge refused to consider the date that such a
petition was delivered to prison authorities as the filing date,
4                 HERNANDEZ V. SPEARMAN

as courts generally must under the prison mailbox rule. See
Houston v. Lack, 487 U.S. 266, 276 (1988).

    Next, the magistrate judge reasoned that Hernandez’s
conviction became final on August 9, 2005, with the result
that, absent tolling, the federal habeas petition was due
August 9, 2006. The magistrate judge determined that:
(1) the limitations period was statutorily tolled while
Hernandez’s first state habeas petition was pending in
California superior court, from October 28, 2005 to
December 20, 2005; and (2) Hernandez was not entitled to
statutory tolling for the roughly eight-month interval before
his next filing, because Hernandez’s next state petition was
filed in the same court as his first and was not limited to an
elaboration of the facts relating to the claims raised in the first
petition. See King v. Roe, 340 F.3d 821, 823 (9th Cir. 2003)
(per curiam) (abrogated on other grounds by Evans v. Chavis,
546 U.S. 189 (2006)).

    Finally, the magistrate judge applied statutory tolling for
the period the second state habeas petition was actually
pending before the California Superior Court, from August
17, 2006 to August 24, 2006, and then assumed, without
deciding, that Hernandez was entitled to statutory tolling for
the time between the denial of the second state petition and
the California Supreme Court’s summary denial of
Hernandez’s fourth state petition on August 29, 2007. Based
on this assumption, the statute of limitations began ticking
again on August 30, 2007, at which point Hernandez had
forty-seven days, or until October 15, 2007, to file his federal
habeas petition. Hernandez did not file until October 18,
2007, making his petition three days late under the magistrate
judge’s calculations.
                    HERNANDEZ V. SPEARMAN                                5

    Over Hernandez’s objections, the district court adopted
the magistrate judge’s Report and Recommendation in full
and, without considering the merits of his federal claims,
dismissed the petition with prejudice.

     We granted Hernandez a certificate of appealability on the
timeliness question, appointed counsel, and ordered that the
parties address “whether the mailbox rule applies when a
petitioner gives his petition to a third party (e.g., jailhouse
lawyer) to mail from within the prison.” After carefully
considering the Report and Recommendation and the parties’
arguments, we hold that the mailbox rule applies when a pro
se habeas petitioner gives his petition to a third party to mail
from within the prison. As the district court’s determination
that Hernandez’s petition was untimely relied on the contrary
conclusion, and therefore on an erroneous calculation of
filing dates, we reverse and remand for further proceedings
not inconsistent with this opinion.

                                   II.

A. Prison Mailbox Rule

       A pro se prisoner’s notice of appeal from the denial of a
federal habeas petition is filed “at the time . . . [it is] delivered
. . . to the prison authorities for forwarding to the court clerk.”
Houston, 487 U.S. at 276. The rule applies equally to a pro
se prisoner’s filing of a California state habeas petition.1



 1
   Although the point is not disputed, we note that the prison mailbox rule
applies in Hernandez’s case because his habeas petition “arise[s] from
convictions in California — a state that does not reject the prison mailbox
rule and which has indeterminate rather than fixed time limitations for
6                  HERNANDEZ V. SPEARMAN

Stillman v. LaMarque, 319 F.3d 1199, 1201 (9th Cir. 2003).
To benefit from the mailbox rule, (1) a prisoner must proceed
without counsel, and (2) the petition must be delivered to
prison authorities for mailing to the court within the
limitations period. Id.

    Application of the rule has never turned on the identity of
the prisoner who physically delivers the petition to prison
authorities. After examining the precedential underpinnings
of the mailbox rules, we conclude that there is no reason it
should.

     Writing for the Supreme Court in Houston, Justice
Brennan explained the impetus behind the Court’s adoption
of the mailbox rule: “The situation of prisoners seeking to
appeal without the aid of counsel,” he said, “is unique.”
487 U.S. at 270. Unrepresented prisoners “cannot take the
steps other litigants can take to monitor the processing of
their notices of appeal . . . before the . . . deadline.” Id. at
270–71. The Court recognized that “the pro se prisoner has
no choice but to entrust the forwarding of his notice of appeal
to prison authorities whom he cannot control or supervise and
who may have every incentive to delay,” and that a prisoner
litigant’s “control over the processing of his notice
necessarily ceases as soon as he hands it over to the only
public officials to whom he has access — the prison
authorities.” Id. at 271. Unlike represented litigants and
litigants who are not incarcerated, pro se prisoners have no
control of their court filings after delivery to prison
authorities: “No matter how far in advance the pro se prisoner



filing habeas petitions.” Orpiada v. McDaniel, 750 F.3d 1086, 1089 (9th
Cir. 2014).
                 HERNANDEZ V. SPEARMAN                         7

delivers his notice to the prison authorities, he can never be
sure that it will ultimately get stamped ‘filed’ on time.” Id.

    In applying Houston to ascertain the date not only of a
notice of appeal but also of a state habeas filing, we
previously reasoned that unrepresented state prisoners filing
state habeas petitions are equally “powerless and unable to
control the time of delivery of documents to the court,” so
“the conditions that led to the adoption of the mailbox rule
are present.” Saffold v. Newland, 250 F.3d 1262, 1268 (9th
Cir. 2000), overruled on other grounds, Carey v. Saffold,
536 U.S. 214 (2002). These conditions are also present when
a prisoner gives his petition to another prisoner to mail from
within the prison.

    Those cases that have refused to extend the prison
mailbox rule have done so in circumstances where the litigant
had a degree of control that a prisoner who asks another
prisoner to mail his petition lacks. Courts have refused, for
example, to apply the prison mailbox rule to cases in which
a prisoner is assisted by counsel, Stillman, 319 F.3d at 1202;
to cases in which a prisoner delivers a filing to the prison
authorities for mailing to someone other than the clerk of
court, id.; Paige v. United States, 171 F.3d 559, 560–61 (8th
Cir. 1999); and to cases in which a prisoner gives a petition
to a third party who is not confined in prison for filing
through regular channels, Cook v. Stegall, 295 F.3d 517, 521
(6th Cir. 2002). In such cases, the prisoner is not in the
“unique situation” Houston identified, either because he is not
relying on prison authorities to get his petition to the clerk of
court by the deadline, or because he has an unconfined
representative free to file papers on his behalf. Additionally,
as the Sixth Circuit Court of Appeals recognized in Cook,
applying the prison mailbox rule to petitions mailed from
8                HERNANDEZ V. SPEARMAN

prison to third parties “would allow prisoners to mail habeas
petitions to third parties for substantive revisions while
claiming their earlier mailing date as the filing date,” thus
“circumvent[ing] statutes of limitations.” 295 F.3d at 521.

    Applying the prison mailbox rule to Hernandez’s filings
raises none of the concerns expressed in Stillman and Cook,
and vindicates the purpose expressed in Houston. Hernandez
had no choice but to avail himself of prison authorities for
mailing his habeas petitions to the courts. Once the petitions
were deposited with the prison authorities, neither he nor the
prisoner who deposited the petitions could monitor the status
of the mailings to ensure prompt delivery.

    Moreover, the operative date remains the date the petition
was delivered to prison authorities, see Huizar v. Carey,
273 F.3d 1220, 1223 (9th Cir. 2001), not the date Hernandez
gave the petition to the second prisoner for delivery. Because
the date on which his petitions were delivered to prison
authorities is readily ascertainable through the same systems
that monitor a prisoner’s own deliveries, there is no risk that
applying the prison mailbox rule in this circumstance would
circumvent the statute of limitations by allowing for
substantive revisions to the petition after the delivery date.

    The district court’s contrary reasoning is unpersuasive.
The district court asserted that “extending the mailbox rule to
situations in which an inmate entrusts another inmate to
provide materials to prison authorities for mailing, would
appear to run counter to an underlying rationale of the
mailbox rule — that the pro se prisoner has no choice but to
rely upon prison authorities, and thus should not be
prejudiced by their potential dilatoriness.” But the fact that
Hernandez entrusted the depositing of his petition with prison
                 HERNANDEZ V. SPEARMAN                        9

authorities to a fellow prisoner does not at all change the fact
that once that delivery was timely accomplished, albeit
indirectly, Hernandez “ha[d] no choice but to rely upon
prison authorities” to mail the petition to the courts.

    The Warden notes that part of the rationale behind the
Supreme Court’s Houston decision is the relative ease with
which prison authorities and the State may dispute a
prisoner’s assertions of timeliness by recourse to logs
maintained by prison authorities. See 487 U.S. at 275. In
contrast, the Warden contends, applying the prison mailbox
rule to the circumstances of this case would make it difficult
to refute false claims of timeliness. Not so. Prison logbooks
could reflect the name of the prisoner who deposited the
petition with the prison authorities. From there, it is a simple
matter for the court and the Warden to match the logbook
entry to the proof of service signed and dated by the third
party prisoner, using the same process via which the court
and the Warden would use to verify the prisoner’s own claims
of depositing the petition with prison authorities.
Alternatively, prisons could require prisoners depositing mail
on behalf of another prisoner to provide the name of the
prisoner on whose behalf they are mailing documents.

    We therefore hold that the prison mailbox rule applies
when a prisoner delivers a habeas petition on behalf of
another prisoner to prison authorities for forwarding to the
clerk of court, and that Hernandez’s petition was filed “at the
moment it [was] delivered to prison officials for forwarding.”
Houston, 487 U.S. at 272.
10                   HERNANDEZ V. SPEARMAN

B. Statutory Tolling

    Hernandez claims that, in addition to erroneously holding
the prison mailbox rule inapplicable, the district court erred
by refusing to statutorily toll the 237-day2 interval between
the California Superior Court’s denial of Hernandez’s first
state habeas petition and the filing of his second state habeas
petition in that same court. We disagree, and affirm the
district court’s decision not to toll this period.

                                     1

    AEDPA requires “a state prisoner seeking a federal
habeas corpus remedy to file his federal petition within one
year after his state conviction has become ‘final.’” Carey v.
Saffold, 536 U.S. 214, 216 (2002); 28 U.S.C.
§ 2244(d)(1)(A). “[H]owever, . . . the 1-year period does not
include the time during which an application for state
collateral review is ‘pending’ in the state courts.” Carey,
536 U.S. at 216–17; 28 U.S.C. § 2244(d)(2).

    Collateral review in California “differs from [the systems]
of other States in that it does not require, technically
speaking, appellate review of a lower court determination,”
and “[i]nstead . . . contemplates that a prisoner will file a new
‘original’ habeas petition” at each level of the state courts.
Carey, 536 U.S. at 221. A second distinguishing feature of
the California post-conviction review process is that



  2
    The district court calculated that this interval was 239 days, but that
calculation relied on the erroneous refusal to apply the prison mailbox rule
to the filing of Hernandez’s second state habeas petition in the California
Superior Court.
                 HERNANDEZ V. SPEARMAN                        11

California “determines the timeliness of each filing according
to a ‘reasonableness’ standard,” id., rather than a deadline.

    Federal courts toll AEDPA’s statute of limitations when
a “properly filed” petition is before a California court, as well
as during the time period “between a lower [California]
court’s decision and the filing . . . of a further original state
habeas petition in a higher [California] court,” so long as the
petitioner files in the higher court within a “reasonable time,”
as defined by California law. Id. at 217; see Gaston v.
Palmer, 417 F.3d 1030, 1036 (9th Cir. 2005) (the “period
during which a properly filed habeas application is actually
before a state court” is tolled), amended on petition for
rehearing, 447 F.3d 1165 (9th Cir. 2006).

    When a petitioner files a second state habeas petition in
the same court, rather than in a higher level of the California
court system, statutory tolling is not “appropriate for the
period between two state habeas petitions,” unless “the
second petition is ‘limited to an elaboration of the facts
relating to the claims in the first petition.’” Stancle v. Clay,
692 F.3d 948, 951 (9th Cir. 2012) (quoting King, 340 F.3d at
823). Where that prerequisite is met, courts must then
determine whether the petition was timely. Banjo v. Ayers,
614 F.3d 964, 970 (9th Cir. 2010).

                               2

    Hernandez filed his second state habeas petition in the
same court as the first rather than moving to a higher level of
review. He therefore must demonstrate that his second state
habeas petition was “limited to an elaboration of the facts
relating to the claims in the first petition,” Stancle, 692 F.3d
12                HERNANDEZ V. SPEARMAN

at 951 (internal quotation marks and citation omitted), and
that it was timely, Banjo, 614 F.3d at 970.

     The first requirement is dispositive here: Hernandez did
not limit this second state habeas petition “to an elaboration
of the facts relating to the claims in the first petition,”
Stancle, 692 F.3d at 951, because he added “a new claim” to
the second petition, id. at 954. Hernandez’s second state
habeas petition alleged that Hernandez’s trial counsel was
ineffective because he failed to move to suppress evidence —
an allegation wholly absent from the first petition. Although
the first petition raised ineffective assistance of counsel,
“ineffective assistance claims are not fungible, but are instead
highly fact-dependant.” Hemmerle v. Schriro, 495 F.3d 1069,
1075 (9th Cir. 2007). Because Hernandez’s claim that
counsel was ineffective for failing to suppress evidence was
a new claim, he is not entitled to statutory tolling for the gap
between the denial of his first state habeas petition and the
filing of his second state habeas petition at the same level.

                               III.

    The district court assumed, but did not decide, that
Hernandez was entitled to statutory tolling for the entire
period between the denial of the second state petition on
August 24, 2006 and the California Supreme Court’s
summary denial of Hernandez’s fourth state petition on
August 29, 2007. On remand, the district court should
address the Warden’s contention that Hernandez is not
entitled to tolling for this entire period, so that, even with the
                    HERNANDEZ V. SPEARMAN                              13

benefit of the prison mailbox rule, his federal petition is not
timely.3

    For the foregoing reasons, the judgment of the district
court is REVERSED, and the matter is REMANDED for
further proceedings not inconsistent with this opinion.




  3
   Hernandez also argues that he is entitled to equitable tolling. We do
not consider equitable tolling unless statutory tolling is insufficient to
render a petition timely, Jorss v. Gomez, 311 F.3d 1189, 1192 (9th Cir.
2002). Consequently, we leave it for the district court to consider
Hernandez’s arguments for equitable tolling in the first instance.

     Additionally, in a letter filed with this court shortly before oral
argument, Hernandez argued for the first time on appeal that the statute of
limitations does not bar his petition because he brings an actual innocence
claim. See McQuiggin v. Perkins, 133 S. Ct. 1924 (2013). We do not
generally consider arguments not raised in an opening brief, Smith v.
Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999), and as we are remanding to
the district court, we also leave this un-briefed argument for the district
court to address in the first instance.
