                                                                            FILED
                            NOT FOR PUBLICATION                              NOV 20 2009

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



CHARLES W. MARTIN,                               No. 08-15752

              Petitioner - Appellant,            D.C. No. 2:99-CV-00223-WBS-
                                                 GGH
  v.

JAMES WALKER, Warden; et al.,                    MEMORANDUM *

              Respondents - Appellees.



                    Appeal from the United States District Court
                       for the Eastern District of California
                    William B. Shubb, District Judge, Presiding

                       Argued and Submitted October 6, 2009
                             San Francisco, California

Before: FERNANDEZ and THOMAS, Circuit Judges, and ALDRICH, ** District
Judge.

       Charles W. Martin appeals the district court’s denial of his habeas petition

challenging his jury conviction of murder and robbery. Because the parties are




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
            The Honorable Ann Aldrich, United States District Judge for the
Northern District of Ohio, sitting by designation.
familiar with the factual and procedural history of this case, we need not recount it

here.

        We reverse the judgment of the district court, a decision which we review de

novo. Griffin v. Johnson, 350 F.3d 956, 960 (9th Cir. 2003) (stating standard of

review for dismissals of habeas petitions based on state procedural defaults).

        This appeal follows this Court’s remand in prior appeal No. 05-15524,

which remanded for determination of the adequacy of California’s timeliness rule

set forth in In re Cark, 855 P.2d 729 (1993) and In re Robbins, 959 P.2d 311

(1998). California’s timeliness rule became independent of federal law in 1998.

Bennett v. Mueller, 322 F.3d 573, 582-83 (9th Cir. 2003). To be adequate, the state

procedural rule must be “well established and consistently applied.” Id. at 583. A

state procedural rule can be neither “well-established nor consistently applied if it

is not clear and certain.” Townsend v. Knowles, 562 F.3d 1200, 1207 (9th Cir.

2009). To constitute a procedural bar, the state’s rule had to be adequate at the

time petitioner purportedly failed to comply with it. Townsend, 562 F.3d at 1206.

Here, the adequacy of the California timeliness bar must be measured at the time

Martin filed his state habeas petition with the California Supreme Court on May

18, 2001. See Valerio v. Crawford, 306 F.3d 742, 776 (9th Cir. 2002) (“In order to

constitute adequate and independent grounds sufficient to support a finding of


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procedural default, a state rule must be clear, consistently applied, and well-

established at the time of petitioner’s purported default.”).

      We held in Townsend that the government failed to prove that California

“operated under clear standards for determining what constituted ‘substantial

delay’ in 2001,” and therefore “failed to meet its burden of proving that

California’s timeliness bar was sufficiently clear and certain to be an adequate state

bar.” Townsend, 562 F.3d at 1208. We rejected the arguments based on AEDPA,

agreed that “substantial delay” has not yet been defined, and determined that

“frequent application of a vague standard in dispositions that offer no guidance,

however, does not serve to clarify that standard.” Townsend, 562 F.3d at 1208.

       The State argues that it was hindered in its presentation of evidence in

Townsend, and that we should therefore ignore the decision. However, even if we

could, there is nothing in the record of this case that would cause us to alter

Townsend’s conclusion. Of the nineteen combined cases cited by the State and the

district court, only three were decided prior to 2002, the relevant date in this case.

Most of the decisions only mention Clark or Robbins in a footnote or to support an

ancillary point. The decisions that do discuss Clark or Robbins do not form a

coherent pattern of consistent application. Compare, e.g., In re Little, No.

D047468, 2008 WL 142832 (Cal. Ct. App. Jan. 16, 2008) (fourteen months not an


                                           -3-
unreasonable delay), with People v. Fairbanks, No. C047810, 2006 WL 950267

(Cal. Ct. App. Apr. 11, 2006) (one year delay substantial and untimely).

      In sum, unlike other states, California has chosen to employ an undefined

standard of “substantial delay” in denying state habeas petitions for untimeliness,

rather than using fixed statutory deadlines. We have concluded in Townsend, and

other cases, that this standard has yet to be firmly defined and that the state has not

met its burden of proof of showing that the standard is consistently applied. After

a careful review of the record in this case, that conclusion remains unaltered.

      We reverse the district court’s judgment and remand for a determination of

petitioner’s claim on the merits. Each party shall bear its own costs on appeal.




      REVERSED and REMANDED.




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