                                                                              FILED
                           NOT FOR PUBLICATION
                                                                              AUG 24 2020
                    UNITED STATES COURT OF APPEALS                         MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


JULIUS M. ROBINSON,                              No.   14-15125

              Petitioner-Appellant,              D.C. No.
                                                 2:13-cv-00604-WBS-AC
 v.

G. W. LEWIS,                                     MEMORANDUM*

              Respondent-Appellee.


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

                        Argued and Submitted June 11, 2015
                             San Francisco, California

                       Submission Withdrawn July 28, 2015
                          Resubmitted August 20, 2020

Before: SCHROEDER and IKUTA, Circuit Judges, and SEABRIGHT,** District
Judge.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable J. Michael Seabright, United States Chief District
Judge for the District of Hawaii, sitting by designation.
      Julius Robinson appeals the dismissal of his petition for habeas corpus. We

have jurisdiction under 28 U.S.C. §§ 1291 and 2253(a), and having received an

answer to our certified question, we reverse and remand.

      Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),

“[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.” 28

U.S.C. § 2244(d)(1). But “[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 [this] period of

limitation.” 28 U.S.C. § 2244(d)(2). “[W]e apply the AEDPA statute of

limitations on a claim-by-claim basis.” Mardesich v. Cate, 668 F.3d 1164, 1173

(9th Cir. 2012). We must determine how this statutory framework applies to

California post-conviction proceedings.

      In California, “[t]he Supreme Court, courts of appeal, superior courts, and

their judges have original jurisdiction in habeas corpus proceedings.” Robinson v.

Lewis, No. S228137, 2020 WL 4045925, at *4 (Cal. July 20, 2020) (quoting Cal.

Const., art. VI, § 10). “Petitioners should first file a petition for a writ of habeas

corpus challenging a judgment in the superior court that rendered the judgment.”

Id. at *5. To this end, “[a] higher court ‘has discretion to deny without prejudice a


                                            2
habeas corpus petition that was not filed first in a proper lower court.’” Id.

(quoting In re Steele, 32 Cal. 4th 682, 692 (2004)). In non-capital cases, “if the

superior court denies a petition for a writ of habeas corpus, the petitioner has no

statutory right to appeal” and must instead “file a new, original petition, generally

in the Court of Appeal.” Id. at *4. “The new petition can add to or attempt to

bolster the claims made in the earlier petition.” Id.

      In Carey v. Saffold, the Supreme Court considered this framework and

concluded 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

‘pending.’” 536 U.S. 214, 223 (2002). According to Saffold, “California applies a

general ‘reasonableness’ standard” when determining timeliness, unlike other

states, which “specify precise time limits, such as 30 or 45 days, within which an

appeal must be taken.” Id. at 222.

      In a subsequent case addressing the same issue, Evans v. Chavis, the Court

instructed lower courts to determine whether, under California law, a petitioner

filed a new petition in a higher court within a “reasonable time.” 546 U.S. 189,

193 (2006) (citing Saffold, 536 U.S. at 222–23). If so, “the days between (1) the

time the lower state court reached the adverse decision, and (2) the day he filed a


                                           3
petition in the higher state court” are “pending” for purposes of 28 U.S.C.

§ 2244(d)(2) and therefore “add[ed] to the 1-year time limit.” Id. (citing Saffold,

536 U.S. at 222–23).

      Because of the difficulty in determining what constitutes a “reasonable time”

between a lower court’s denial of a habeas petition and the filing of a new petition

in a higher state court, Chavis suggested “certifying a question to the California

Supreme Court in an appropriate case.” Id. at 199 (citing Saffold, 536 U.S. at

226–27). The Court noted, however, that an unexplained delay of six

months—“far longer than the ‘short periods of time,’ 30 to 60 days, that most

States provide for filing an appeal to the state supreme court”—would not “fall

within the scope of the federal statutory word ‘pending’ as interpreted in Saffold.”

Id. at 201 (quoting Saffold, 536 U.S. at 219).

      In this case, we were presented with the question whether “a habeas petition

[is] untimely filed after an unexplained 66-day delay between the time a California

trial court denies the petition and the time [a new] petition is filed in the California

Court of Appeal.” Robinson v. Lewis, 795 F.3d 926, 928 (9th Cir. 2015).

Following the Supreme Court’s guidance, Chavis, 546 U.S. at 199, we certified the

question to the California Supreme Court, Robinson, 795 F.3d at 928. In response,

the California Supreme Court explained that it does “not consider whether the


                                            4
petition was timely but rather whether the claims presented within the petition were

timely,” and therefore it “consider[s] only the question of whether each of those

claims was presented without substantial delay, as set forth in In re Robbins, 18

Cal. 4th 770, 780 (1998).” Robinson, 2020 WL 4045925, at *2.

      In re Robbins held that a state prisoner’s petition for collateral review is

entitled to a presumption of timeliness if it is filed within 90 days after the filing of

the petitioner’s reply brief on a direct appeal. 18 Cal. 4th at 780. Without this

presumption, a petitioner can still avoid the bar of untimeliness by establishing:

(1) absence of substantial delay, (2) good cause for the delay, or (3) that the claim

falls within an exception to the bar of untimeliness (e.g., the petitioner is actually

innocent). Id. Because California petitioners should present a claim in a lower

court before presenting it to a higher court, Robinson, 2020 WL 4045925, at *5,

the time during which a claim is pending in a lower court is not counted against a

petitioner when determining whether the petitioner substantially delayed in

presenting the claim to a higher court, see id. at *2. But California courts do take

into account “gap delay”—that is, “the time gap between the denial of a petition

for a writ of habeas corpus in a lower California court and the filing of a new

petition in a higher California court raising the same claims.” Id. at *1. Although

California courts “do not generally consider, separately, whether the gap delay, by


                                            5
itself, made the claims raised in [a] petition untimely,” the California Supreme

Court “would never consider delay of up to 120 days between denial of a petition

in the superior court and the filing of a new petition in the Court of Appeal . . . to

be substantial delay.” Id. at *2.

      Under Saffold, we must treat the California system “as similar to other

States” because “its ‘original writ’ system functions like the ‘appeal’ systems of

those other States.” 536 U.S. at 225. As such, although California considers the

timeliness of individual claims, a petitioner is reasonably diligent and “the ordinary

state collateral review process is ‘in continuance,’” id. at 219–20, so long as the

petitioner does not substantially delay in pursuing a claim in a higher court after its

denial in a lower court, see Robinson, 2020 WL 4045925, at *1. Therefore, if a

petitioner does not substantially delay in presenting a claim to a lower court, see In

re Robbins, 18 Cal. 4th at 780, and, after the claim is denied, the petitioner presents

the claim to a higher court within the 120-day safe harbor recognized by the

California Supreme Court, see Robinson, 2020 WL 4045925, at *9, there is no

substantial delay and the “ordinary state collateral review process is ‘in

continuance,’” Saffold, 536 U.S. at 219–20.

      Applying this understanding to the case at hand, the district court erred in

dismissing Robinson’s federal habeas petition as barred by AEDPA’s one-year


                                            6
limitations period, 28 U.S.C. § 2244(d)(1). After the California Superior Court

denied Robinson’s claims, Robinson filed a petition in the California Court of

Appeal, presenting the same claims, within 66 days of the denial.1 In light of the

California Supreme Court’s answer to our certified question, this 66-day interval is

not a substantial delay. See Robinson, 2020 WL 4045925, at *9. Therefore, under

Saffold, the “ordinary state collateral review process [was] ‘in continuance,’” 536

U.S. at 219–20, and all of Robinson’s claims are deemed to have been pending

throughout the 66-day period. Therefore, the 66 days “shall not be counted”

toward AEDPA’s one-year limitations period. 28 U.S.C. § 2244(d)(2); see Chavis,

546 U.S. at 193; Saffold, 536 U.S. at 219–20. Because the limitations period was




      1
         Because Robinson’s new petition in the California Court of Appeal raised
“no additional claims,” this is not a case where a petition “containing multiple
claims might have one or more claims that are untimely and one or more claims
that are timely.” Robinson, 2020 WL 4045925, at *6; see also Mardesich, 668
F.3d at 1173.
                                          7
tolled for these 66 days, Robinson timely filed his federal habeas petition on March

13, 2013. See Robinson, 795 F.3d at 935.2

      REVERSED AND REMANDED.3




      2
         Because this is not a case where there was a delay “far longer than the
‘short period[s] of time,’ 30 to 60 days, that most States provide for filing an
appeal,” we leave for another day the question whether a non-substantial delay
under California law could nevertheless be so long that it does not “fall within the
scope of the federal statutory word ‘pending’ as interpreted in Saffold.” Evans,
546 U.S. at 201 (citation omitted); see also Robinson, 2020 WL 4045925, at *9
(rejecting a six-month safe harbor as “unduly generous” because, among other
reasons, “the United States Supreme Court observed that it did not ‘see how an
unexplained delay of this magnitude [six months] could fall within the scope of the
federal statutory word ‘pending’”).
      3
       Respondent’s Unopposed Request to Withdraw Supplemental Brief (ECF
No. 58) is GRANTED.
                                          8
