                     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 of Sacramento County,                       OPINION
                 Respondent-Appellee.


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

                 Argued and Submitted
       November 5, 2013—San Francisco, California

                   Filed September 10, 2014

  Before: Sidney R. Thomas and Johnnie B. Rawlinson,
 Circuit Judges, and Kevin Thomas Duffy, District Judge.*

                   Opinion by Judge Duffy;
                  Dissent by Judge Rawlinson




  *
    The Honorable Kevin Thomas Duffy, United States District Judge for
the Southern District of New York, sitting by designation.
2                    MCMONAGLE V. MEYER

                           SUMMARY**


                          Habeas Corpus

    The panel reversed the district court’s order dismissing as
untimely a 28 U.S.C. § 2254 habeas corpus petition
challenging a misdemeanor conviction for driving under the
influence, and remanded.

    The panel held that in the context of California
misdemeanants who are required to file a state habeas petition
in order to both reach the state court of last resort and fully
exhaust their claim before seeking relief in federal court,
finality for the purposes of AEDPA occurs once the
California Supreme Court denies their state habeas petition
and the United States Supreme Court denies certiorari or the
90-day period for filing a petition for certiorari expires.

   Dissenting, Judge Rawlinson wrote that the majority
opinion erroneously conflates the concepts of finality and
exhaustion and runs afoul of the time limits contained in 28
U.S.C. § 2244(d)(1)(A).


                             COUNSEL

Charles Marchand Bonneau, II, Sacramento, California; for
Petitioner-Appellant.




  **
     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

Brian G. Smiley (argued), Supervising Deputy Attorney
General; Brian R. Means, Deputy Attorney General; Michael
P. Farrell, Senior Assistant Attorney General; and Kamala D.
Harris, Attorney General, Office of the Attorney General,
Sacramento, California, for Respondent-Appellee.


                         OPINION

DUFFY, District Judge:

    Petitioner-Appellant Brian Joseph McMonagle appeals
the district court’s dismissal of his petition for a writ of
habeas corpus brought under 28 U.S.C. § 2254. McMonagle
seeks relief from a misdemeanor conviction for driving under
the influence. In response to McMonagle’s petition, the
Attorney General’s office filed a motion to dismiss the
petition as untimely. On January 30, 2012, the district court
granted Appellee’s motion to dismiss on the grounds that it
had not been filed within the time limit provided in 28 U.S.C.
§ 2244(d)(1)(A). For the reasons discussed below, we
reverse.

       FACTS AND PROCEDURAL HISTORY

    On November 21, 2008, Brian Joseph McMonagle was
convicted by a jury of (i) misdemeanor driving under the
influence of alcohol (“DUI”) and (ii) driving with a blood
alcohol level of .08% or more. The jury also determined that
McMonagle drove with a blood alcohol level of .15% or
more. McMonagle admitted a prior conviction as to each
count and was sentenced to summary probation for three
years, and 15 days in jail. McMonagle appealed his
conviction to the Appellate Division of the Superior Court of
4                 MCMONAGLE V. MEYER

California (“Appellate Division”). On December 18, 2009,
the Appellate Division reversed McMonagle’s conviction for
driving with a blood alcohol level of .08% and in excess of
.15% in the wake of the Supreme Court’s ruling in Crawford
v. Washington, 541 U.S. 34 (2004). Following the reasoning
set forth in Crawford, the Appellate Division held that
McMonagle’s Confrontation Clause rights were violated
when the state trial court admitted McMonagle’s blood
alcohol lab report without the sponsoring testimony of the
analyst who prepared the report. The Appellate Division thus
reversed his conviction for driving with a blood alcohol level
of .08%. The Appellate Division did not, however, reverse
the DUI conviction, holding that there was sufficient
evidence to uphold the conviction, namely that McMonagle
stopped abruptly and irregularly for a red light, drove
abnormally slow, turned abruptly, smelled of alcohol,
mumbled, admitted to consuming alcohol, had red, watery
eyes, was slow and unsteady on his feet, and had difficulty
walking.

    McMonagle filed a timely request for certification of the
matter to the California Court of Appeal, which the Appellate
Division denied on January 19, 2010. On February 3, 2010,
McMonagle filed a timely request for transfer in the Third
District Court of Appeal, which was denied on February 11,
2010. On April 7, 2010, McMonagle timely filed a petition
for writ of habeas corpus in the California Supreme Court
asserting that he was denied the right to confrontation by the
use in evidence of conclusions drawn by an expert witness
who was not available to testify at trial. The California
Supreme Court denied that petition without comment on June
17, 2010.
                  MCMONAGLE V. MEYER                          5

    On August 10, 2011, McMonagle filed a federal petition
for writ of habeas corpus in the Eastern District of California.
The state moved to dismiss the federal petition on the grounds
that it was untimely. The state argued that (i) McMonagle’s
period of “direct review” in the state courts ended on
February 11, 2010, when the state Court of Appeal denied
McMonagle’s request for transfer, and (ii) the 90-day time
period to seek certiorari in the United States Supreme Court
ended on May 12, 2010. According to the state, the AEDPA
one-year statute of limitations began on the following day,
May 13, 2010, making the last day to file a federal writ of
habeas corpus May 12, 2011, plus any time for tolling. The
state conceded that McMonagle was entitled to a statutory toll
pursuant to 28 U.S.C § 2244(d)(2) from May 13, 2010 (the
day after McMonagle’s 90-day period to petition the U.S.
Supreme Court ostensibly expired) to June 17, 2010 (the date
his state habeas petition was denied by the California
Supreme Court). Thus, the state argued that the habeas
petition filed in the California Supreme Court, while
necessary for exhaustion, is not part of the “direct review”
process for purposes of determining when the statute of
limitations begins to run.

    McMonagle argued that his one-year statute of limitations
did not begin until September 17, 2010. This is 90 days after
the California Supreme Court denied his habeas petition on
June 17, 2010, and when his state court claim was fully
exhausted and his period for Supreme Court review ended.
McMonagle argued that since exhaustion of remedies to the
highest state court is required before a habeas petition can be
presented in federal court, the “direct review” of his claim
ended only after the California Supreme Court denied his
habeas petition and the 90-day time period to file with the
United States Supreme Court had expired.
6                    MCMONAGLE V. MEYER

    The district court granted the state’s motion to dismiss on
January 30, 2012. The district court held that while a
misdemeanor defendant is entitled to appeal their conviction
to the Appellate Division of the California Superior Court, a
denial of a request to transfer to the California Court of
Appeals is “final immediately” pursuant to the California
Rules of Court. See Cal. R. Ct. 8.1018(a). As such,
McMonagle’s 90-day certiorari review period began on
February 11, 2010—the day his request to transfer was
denied. The district court further held that McMonagle was
entitled to a 36-day toll pursuant to AEDPA’s tolling
provision in § 2244(d)(2).1 Tolling the statute of limitations
moved McMonagle’s habeas petition filing deadline to June
17, 2010 by the district court’s calculus.

    Following the district court’s decision, McMonagle
moved for reconsideration under Rule 59 of the Federal Rules
of Civil Procedure, or, alternatively, that the district court
issue a certificate of appealability. The district court denied
McMonagle’s motion for reconsideration, but granted his
certificate of appealability. This appeal followed.




    1
     The California Court of Appeals denied McMonagle’s request for a
transfer on February 11, 2010. The district court found that this date
marked the conclusion of “direct review” of McMonagle’s petition. Using
this definition of finality, McMonagle had 90 days, or until May 12, 2010,
to petition the U.S. Supreme Court for review. According to the district
court, McMonagle’s one-year statute of limitations began to accrue the
next day, May 13, 2010. However, McMonagle’s properly filed petition
to the California Supreme Court was pending before that court until June
17, 2010. Therefore, the district court tolled the one-year statute of
limitations for 36-days, or from May 13, 2010 to June 17, 2010.
                  MCMONAGLE V. MEYER                         7

                STANDARD OF REVIEW

    The timeliness of a federal habeas petition, including a
district court’s dismissal of a claim under the AEDPA statute
of limitations is reviewed de novo. Porter v. Ollison,
620 F.3d 952, 958 (9th Cir. 2010); Summers v. Schriro, 481
F.3d 710, 712 (9th Cir. 2007). Furthermore, we review
questions of statutory interpretation de novo. Id.

                       DISCUSSION

I. Introduction

    McMonagle timely filed his petition for writ of habeas
corpus within the one-year statute of limitations period of the
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”). 28 U.S.C. § 2244(d)(1)(A). We hold that, in
the context of California misdemeanants who are required to
file a state habeas petition in order to both reach the state
court of last resort and fully exhaust their claim before
seeking relief in federal court, finality for the purposes of
AEDPA occurs once the California Supreme Court denies
their state habeas petition and the United States Supreme
Court denies certiorari or the 90-day period for filing a
petition for certiorari expires. Thus, we reverse and remand.

     Our holding is based on a careful analysis of the related
but distinct concepts of exhaustion and finality. While it is
important that courts not conflate the two, in the context of
California misdemeanants, direct review should not be final
until a petitioner exhausts his state remedies, which includes
filing a habeas petition to the California Supreme Court. This
ensures that the California Supreme Court has an opportunity
to correct any constitutional violations before a petitioner
8                 MCMONAGLE V. MEYER

seeks help in either the United States Supreme Court or
federal district court. Any other holding could result in
simultaneous state and federal petitions, which would
undermine the bedrock principal of comity.

II. When AEDPA’s Statute of Limitations Begins to Run
    on State Habeas Petitioners

    AEDPA “establishes a one-year statute of limitations for
a state prisoner to file a federal habeas corpus petition.”
Jimenez v. Quarterman, 555 U.S. 113, 114 (2009). The
statute of limitations period runs from “the date on which the
judgment became final by the conclusion of direct review or
the expiration of time for seeking such review.” 28 U.S.C.
§ 2244(d)(1)(A). “[F]or a state prisoner who does not seek
review in a State’s highest court, the judgment becomes
‘final’ on the date that the time for seeking such review
expires.” Gonzalez v. Thaler, 132 S. Ct. 641, 646, 181 L. Ed.
2d 619 (2012). In contrast, where a state defendant seeks
direct review in a state’s highest court, the judgment becomes
final when time for seeking certiorari review in the U.S.
Supreme Court expires. See Jimenez, 555 U.S. at 120. This
is because the U.S. Supreme Court has jurisdiction over final
decisions of the highest state court “in which a decision could
be had” respecting a constitutional right or other federal law.
28 U.S.C. §1257.

    The rules articulated in Gonzales and Jimenez do not
definitively resolve this case, however, because California
labels discretionary review of a misdemeanor by its court of
last resort a “collateral” proceeding. Texas—where both
Gonzales and Jimenez originated—considers discretionary
review by the state court of last resort for criminal matters to
be part of the direct review process. California, in contrast,
                  MCMONAGLE V. MEYER                          9

considers discretionary review of a misdemeanor by the
California Supreme Court—California’s court of last
resort—to be a collateral proceeding. The practical
difference between the two is not self-evident: “the phrase
‘collateral review’” simply means “judicial review of a
judgment in a proceeding that is not part of direct review.”
Wall v. Kholi, 131 S. Ct. 1278, 1282 (2011) (internal
quotations and citations omitted) (holding a state prisoner’s
post-conviction motion to reduce sentence was part of
collateral rather than direct review).

   A. The California Path of Review for a Misdemeanor
      is Atypical

    A California misdemeanant’s path to federal court review
is somewhat unusual. In California, a misdemeanor criminal
conviction may be immediately appealed to the Appellate
Division of the Superior Court. Cal. Penal Code. § 1466.
After the proceedings in the Appellate Division have
concluded, a misdemeanor defendant may request that the
Appellate Division certify the matter to the state Court of
Appeal. If this certification request is denied, a misdemeanor
defendant may seek a transfer in the Court of Appeal directly.
See Cal. R. Ct. 8.1002, 8.1006. Pursuant to California Rule of
Court 8.1018(a), “if the Court of Appeal denies transfer of a
case from the appellate division of the superior court after the
appellate division certifies the case for transfer or after a
party files a petition for transfer, the denial is final
immediately.” Cal. R. Ct. 8.1018(a) (emphasis added). The
denial of a misdemeanor defendant’s request to transfer
cannot be reviewed by the California Supreme Court. Cal. R.
Ct. 8.500(a)(1). However, the California Constitution gives
the California Supreme Court original jurisdiction over
misdemeanants’ habeas claims. Cal. Const. of 1879, art. VI,
10                MCMONAGLE V. MEYER

§ 10 (1966). Thus, a habeas petition is the means by which
a misdemeanant can have the California Supreme Court
consider his or her claim.

     B. Federal Law Governs When “Direct Review”
        Concludes

    The state argues that the language of California Rule of
Court 8.1018(a), which renders the California Court of
Appeal Transfer “final immediately,” “strongly indicates that
‘direct review’ [under AEDPA] ends once the California
Court of Appeal denies a misdemeanant’s petition for transfer
and the 90-day period for certiorari elapses.” But California’s
nomenclature is not determinative here because federal law,
not state law, determines “when a conviction becomes ‘final
by the conclusion of direct review.’” Summers v. Schriro,
481 F.3d 710, 714 (9th Cir. 2007). “Finality is a concept that
has been ‘variously defined; like many legal terms, its precise
meaning depends on context.’” Jimenez, 555 U.S. at 119.
The U.S. Supreme Court has rejected a state-specific
definition of finality under AEDPA, holding that it “would
usher in state-by-state definitions of the conclusion of direct
review . . . [a]nd it would pose serious administrability
concerns.” Gonzalez, 132 S. Ct. at 655.

    Thus, despite how California categorizes it, seeking
habeas review of a misdemeanor in the California Supreme
Court is, for the purposes of federal law, de facto part of the
direct review process. It is available to all misdemeanants,
and is the sole mechanism by which California’s court of last
resort reviews legal issues before a petitioner may seek
federal review. For that reason, state habeas review in these
circumstances is not truly collateral “in its customary and
preferred sense” because it is not “lying aside from the main
                  MCMONAGLE V. MEYER                       11

subject.” Wall, 131 S. Ct. at 1284. Accordingly, finality here
for the purposes of AEDPA occurs once the California
Supreme Court denies a misdemeanant’s state habeas petition
and the U.S. Supreme Court denies certiorari or the 90-day
period for filing a petition for certiorari expires.

III.   A Misdemeanant Must Exhaust at the California
       Supreme Court Before Seeking Federal Review

    Here, it is no coincidence that finality coalesces with
exhaustion. A habeas petitioner must exhaust all available
state remedies before seeking review in a federal district
court. Larche v. Simons, 53 F.3d 1068, 1071 (9th Cir. 1995);
28 U.S.C. § 2254. Almost two decades ago, this court held
that “before turning to the federal courts for habeas review,
misdemeanants must present their constitutional claims to the
California Supreme Court by means of state habeas petitions”
in order to fully exhaust their claims in compliance with
§ 2254. Id. at 1072. The Supreme Court, moreover, has
repeatedly emphasized the importance of full exhaustion in
habeas petitions, stating, for example,

       The exhaustion doctrine is principally
       designed to protect the state courts’ role in the
       enforcement of federal law and prevent
       disruption of state judicial proceedings.
       Under our federal system, the federal and state
       courts are equally bound to guard and protect
       rights secured by the Constitution. Because it
       would be unseemly in our dual system of
       government for a federal district court to upset
       a state court conviction without an
       opportunity to the state courts to correct a
       constitutional violation, federal courts apply
12                 MCMONAGLE V. MEYER

        the doctrine of comity, which teaches that one
        court should defer action on causes properly
        within its jurisdiction until the courts of
        another sovereignty with concurrent powers,
        and already cognizant of the litigation, have
        had an opportunity to pass upon the matter.

Rose v. Lundy, 455 U.S. 509, 518 (1982) (internal citations
and quotation marks omitted). The exhaustion requirement
affords state courts a full opportunity to consider and correct
any constitutional or federal law challenges to a state
judgment before a habeas defendant can collaterally attack
the judgment in federal court. Duncan v. Walker, 533 U.S.
167, 178–79 (2001); see also O’Sullivan v. Boerckel,
526 U.S. 838 (1999) (holding that if a state’s appellate
procedure allows a habeas petitioner to file a discretionary
petition with the state’s highest court that is a necessary step
to exhaustion).

    Thus, before a defendant in state custody may seek
federal review, that defendant must fully exhaust all available
state remedies. For misdemeanants in California, this
includes filing a discretionary petition to the California
Supreme Court. Larche, 53 F.3d at 1072. It is only after the
California State Supreme Court petition is denied that a
misdemeanant’s 90-day window within which he can
properly file, or decline to file, a petition for certiorari with
the U.S. Supreme Court begins to run. “A petition for a writ
of certiorari seeking review of a judgment of a lower state
court that is subject to discretionary review by the state court
of last resort is timely when it is filed with the Clerk within
90 days after entry of the order denying discretionary
review.” U.S. Sup. Ct. R. 13(1). Thus, in habeas cases such
as this one, it would be nonsensical to have finality and
                  MCMONAGLE V. MEYER                        13

exhaustion occur at different times merely because a state
labels discretionary review by the state court of last resort
“collateral” rather than “direct.” It could create a situation
where a misdemeanant cannot yet petition a federal court
because he has not yet exhausted his state remedies, and yet,
at the same time, he must petition the federal courts lest he
run the statute of limitations.

    The state acknowledges that McMonagle was required
file the discretionary petition with the California Supreme
Court in order to fully exhaust his claim for federal purposes.
See Larche, 53 F.3d at 1071. McMonagle did so, and the
Supreme Court of California denied that petition on June 17,
2010. McMonagle’s 90-day window to file certiorari with the
United States Supreme Court began that day and expired on
September 17, 2010. On this date, McMonagle’s claim was
both exhausted and final. McMonagle then had until
September 17, 2011 to file his federal habeas petition. He did
so on August 10, 2011, and his petition was therefore timely.

VI.    Finality and Exhaustion Coinciding is Not
       Problematic

    We find unpersuasive the state’s argument that
incorporating exhaustion into “direct review” would give
misdemeanants two 90-day certiorari periods, “one after the
highest state court had ruled on direct review, whatever the
status of that court, and another further ‘tolling’ 90-day
period after submission of a habeas petition to the highest
state court which could review the habeas petition.”
California misdemeanants who, like McMonagle, comply
with all of the state’s appellate procedures and deadlines,
including filing a timely discretionary petition with the
California Supreme Court, would be entitled to only one 90-
14                MCMONAGLE V. MEYER

day certiorari period, commencing after the California
Supreme Court denied the discretionary petition. Our holding
in this case is deliberately narrow, applying only to
misdemeanants who timely file and otherwise fully comply
with all of the California state exhaustion requirements.

     Nor are we persuaded by the state’s argument that if
finality of direct review for misdemeanor defendants
coincides with claim exhaustion, AEDPA’s tolling provision
in § 2244(d)(2) would be rendered a nullity. AEDPA’s
tolling provision states, “[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.” 28 U.S.C. § 2244(d)(2). Our holding
only makes this provision redundant in states, like California,
that label discretionary review to the court of last resort as
“collateral” rather than “direct.”           Ultimately, the
consideration that our holding may render § 2244(d)(2)
inapplicable to misdemeanor habeas petitioners in a few
select states is greatly outweighed by federal courts’
overriding concerns for comity and uniformity.

                      CONCLUSION

     “Finality is a concept that has been ‘variously defined;
like many legal terms, its precise meaning depends on
context.’” Jimenez, 555 U.S. at 119. This case is the perfect
example of “finality” varying based on context. In the
context of California misdemeanor habeas petitioners, finality
for the purposes of AEDPA occurs once the California
Supreme Court denies their state habeas petition and the U.S.
Supreme Court denies certiorari or the 90-day period for
filing a petition for certiorari expires. Even though a
                  MCMONAGLE V. MEYER                         15

misdemeanor judgment is “final immediately” under the
California Rules of Court, the judgment is not final for
purposes of AEDPA until a misdemeanant has exhausted his
claim by filing a discretionary petition in the California State
Supreme Court. This holding ensures that federal courts
“avoid the ‘unseem[liness]’ of . . . overturning a state court
conviction without the state courts having had an opportunity
to correct the constitutional violation in the first instance.”
O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).

    Ultimately, this may be a hollow victory for Mr.
McMonagle. If on remand the district court finds that the
California Appellate Division correctly determined that the
admission of the blood test results was harmless beyond a
reasonable doubt, Mr. McMonagle’s petition will be denied
on the merits.

   REVERSED AND REMANDED.



RAWLINSON, Circuit Judge, dissenting:

    I respectfully dissent from the holding of the majority that
Brian Joseph McMonagle’s habeas petition was timely. In
my view, the majority opinion erroneously conflates the
concepts of finality and exhaustion and runs afoul of the time
limits contained in 28 U.S.C. § 2244(d)(1)(A) of the Anti-
Terrorism and Effective Death Penalty Act of 1996
(AEDPA).

    As the majority opinion discusses, the issue of timeliness
in this case stems from the peculiar review procedure that
governs misdemeanor appeals in the California judicial
16                MCMONAGLE V. MEYER

system. In California, an individual convicted of a
misdemeanor may only challenge the conviction by filing an
appeal with the appellate division of the superior court of
California. See Cal. Penal Code § 1466; see also People v.
Burlington N. Santa Fe R.R., 209 Cal. App. 4th 1513, 1520
n.3 (2012) (“In a misdemeanor case, appeal is to the appellate
division of the superior court.”) (citing Cal. Penal Code
§ 1466). At the conclusion of proceedings in the appellate
division of the superior court, a party may request that the
appellate division of the superior court certify an appeal to
the California Court of Appeal. See Cal. R. Ct. 8.1005,
8.1002; see also Tecklenberg v. Appellate Div., 169 Cal. App.
4th 1402, 1405 (2009). If the appellate division of the
superior court denies the request for certification, a party may
seek directly a transfer to the Court of Appeal. See Cal. R.
Ct. 8.1006, 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).
The party may not appeal the denial to the California
Supreme Court. See Cal. R. Ct. 8.500(a)(1); see also
Tecklenberg,169 Cal. App. 4th at 1405 n.4 (“Rule 8.500(a)(1)
provides: A party may file a petition in the Supreme Court
for review of any decision of the Court of Appeal, including
any interlocutory order, except the denial of a transfer of a
case within the appellate jurisdiction of the superior court.”)
(internal quotation marks omitted) (emphasis in the original).

    To summarize, an individual convicted of a misdemeanor
in California may obtain review of that conviction in the
appellate division of the superior court. If that review is
unfavorable, the party may seek further review via transfer to
the California Court of Appeal directly or through
certification from the appellate division of the superior court.
However, if the Court of Appeal declines the transfer, no
                  MCMONAGLE V. MEYER                        17

further direct appeal is available. Specifically, the order
denying transfer to the Court of Appeal is final immediately,
and no petition for review may be filed in the California
Supreme Court.

    In this case, McMonagle’s request for transfer to the
Court of Appeal was denied on February 11, 2010. Two
months later, McMonagle filed an original petition for a writ
of habeas corpus in the California Supreme Court, which was
denied on June 17, 2010. The outcome of this case turns on
whether McMonagle’s case became final upon the denial of
the requested transfer to the Court of Appeal or upon denial
of his habeas petition by the California Supreme Court.

   28 U.S.C. § 2244(d)(1)(A) provides:

           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 the latest of - -

           (A) the date on which the judgment
       became final by the conclusion of direct
       review . . .

(Emphasis added).

    We have consistently determined the timeliness of a
habeas petition by calculating the running of the limitations
period with reference to the completion of direct review in the
state court. See Bowen v. Roe, 188 F.3d 1157, 1158–59 (9th
Cir. 1999). Although filing of collateral proceedings may toll
the running of the limitations period, it does not affect
18                     MCMONAGLE V. MEYER

commencement of the running of the limitations period. See
Banjo v. Ayers, 614 F.3d 968–69 (9th Cir. 2010) (discussing
tolling due to collateral review proceedings).

     The majority opinion seeks to alter our well-established
interpretation of finality by conflating the concepts of finality
and exhaustion of state remedies. See Majority Opinion,
p. 11 (“Here, it is no coincidence that finality coalesces with
exhaustion. . . . ”). However, the United States Supreme
Court does not agree. In Duncan v. Walker, 533 U.S. 167
(2001), the Supreme Court distinguished the concepts of
exhaustion and finality. The Court explained that the
exhaustion requirement set forth in 28 U.S.C. § 2254(b)
fosters comity between state and federal courts by ensuring
that state courts have a complete opportunity to review
federally-based challenges to a state conviction before
initiating a collateral challenge in federal court. See id. at
178–79. In contrast, the statute of limitations period
contained in 28 U.S.C. § 2244(d)(1) advances the goal of
finality in state court judgments, thereby reducing the
potential for delay. See id. at 179. The tolling provision
contained in 28 U.S.C. § 2244(d)(2)1 bridges the gap between
the limitations period in § 2244(d)(1) and the exhaustion




 1
     28 U.S.C. § 2244(d)(2) provides:

               The time during which a properly filed application
          for State post-conviction or other collateral review . . .
          is pending shall not be counted toward any period of
          limitation under this subsection.
                        MCMONAGLE V. MEYER                               19

requirement of § 2254(b)(1)(A).2 Even though the limitations
period begins to run when direct review becomes final, the
collateral review required to exhaust state remedies tolls the
running of the limitations period.3 See id. at 179–80.

      The majority’s approach conflating exhaustion and
finality obliterates the balance struck by the exhaustion and
statute of limitation provisions of AEDPA and impermissibly
renders the tolling provision superfluous. See Ctr. for
Biological Diversity v. Salazar, 695 F.3d 893, 903 (9th Cir.
2012) (“It is a cardinal principle of statutory construction that
a statute should be construed, if possible, so that no clause,
sentence or word shall be superfluous, void or insignificant
. . . .”) (citations and internal quotation marks omitted). The
majority is of the view that no proceeding in California is
final until the California Supreme Court has ruled. See
Majority Opinion, pp. 7. Thus, the majority calculates the
running of the habeas statute of limitations in this case from
the date the California Supreme Court denied McMonagle’s
habeas petition, rendering his federal habeas petition timely.
See id., p. 13. However, the rules governing misdemeanor
appeals in California provide that denial of a certification to
the California Court of Appeal for review “is final


 2
      28 U.S.C. § 2254(b)(1)(A) provides:

                An application for a writ of habeas corpus . . . shall
           not be granted unless it appears that - -

           (A) the applicant has exhausted the remedies available
           in the courts of the State . . .
  3
    It is notable that 28 U.S.C. § 2254(b)(1)(A) speaks of exhaustion in
terms of “the remedies” available in the state courts while § 2244(d)(1)(A)
speaks of finality in terms solely of direct review.
20                  MCMONAGLE V. MEYER

immediately” and may not be appealed to the California
Supreme Court.         Cal. R. Ct. 8.500(a)(1); see also
Tecklenberg, 169 Cal. App. 4th at 1405 & n.4. The denial of
McMonagle’s appeal on February 11, 2010, was “final
immediately,” triggering the running of the federal habeas
statute of limitation. Without tolling, the one-year statute of
limitations expired on May 12, 2011. See Greene v. Fisher,
132 S. Ct. 38, 44 (2011) (“Finality occurs when direct state
appeals have been exhausted and a petition for writ of
certiorari from [the United States Supreme Court] has become
time barred . . .”) (emphasis added); see also United States
Supreme Ct. R. 13 (providing 90 days within which to file for
a writ of certiorari). As the district court noted, McMonagle
was entitled to tolling for the thirty-six days during which his
habeas petition was pending before the California Supreme
Court. See 28 U.S.C. § 2244(d)(2). Addition of these thirty-
six days extended the statute of limitations deadline to June
17, 2011. I agree with the district court that his habeas
petition filed on August 10, 2011, was untimely.

   It is no surprise that the majority fails to cite even one
case adopting its novel view conflating the concepts of
exhaustion and finality. This will be the first.

     I respectfully dissent.
