Martin Valdez, Jr. v. W. Montgomery

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARTIN LEYVA VALDEZ, JR., No. 16-56845

Petitioner-Appellant,

D.C. No.

v. 5:16-cv-00567-

VAP-DTB

W. L. MONTGOMERY, Acting Warden,

Respondent-Appellee. OPINION

Appeal from the United States District Court

for the Central District of California

Virginia A. Phillips, Chief District Judge, Presiding

Submitted February 5, 2019 *

Pasadena, California

Filed March 14, 2019

Before: Ronald M. Gould, Jacqueline H. Nguyen, and

John B. Owens, Circuit Judges.

Opinion by Judge Gould

*

The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).

2 VALDEZ V. MONTGOMERY

SUMMARY **

Habeas Corpus

The panel affirmed the district court’s dismissal of

California state prisoner Martin Leyva Valdez, Jr.’s federal

habeas petition as untimely under the Antiterrorism and

Effective Death Penalty Act.

The parties agreed that the petition was untimely unless

the statute of limitations was tolled from May 15, 2014—

when the California Superior Court denied Valdez’s first

state habeas petition—until April 29, 2015—when Valdez

filed his second state habeas petition in the California Court

of Appeal.

Because the question of whether Valdez’s second state

habeas petition was timely filed in the Court of Appeal is an

entirely distinct issue from whether his habeas petition in the

Superior Court was timely filed, the panel held that the “look

through” doctrine cannot answer whether the second state

habeas petition was timely.

The panel held that Valdez is not entitled to statutory

tolling. Because Valdez filed his second state habeas

petition before the California Supreme Court decided People

v. Elizalde, 351 P.3d 1010 (Cal. 2015), the panel rejected his

contention that he can establish good cause for the delay by

waiting until Elizalde was decided. The panel likewise

rejected Valdez’s contention that the size of the state-court

**

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

VALDEZ V. MONTGOMERY 3

record and complexity of the case renders his delay

reasonable and establishes good cause, where Valdez offered

no explanation for why he could timely file his first petition

but not his second.

The panel concluded that the district court did not err by

not ordering the State to respond and lodge the state-court

record.

COUNSEL

Stephanie M. Adraktas, Berkeley, California, for Petitioner-

Appellant.

Xavier Becerra, Attorney General of California; Julie L.

Garland, Senior Assistant Attorney General; Robin

Urbanski, Supervising Deputy Attorney General; Sharon L.

Rhodes, Deputy Attorney General; Vincent P. LaPietra,

Deputy Attorney General; Office of the California Attorney

General, San Diego, California; for Respondent-Appellee.

OPINION

GOULD, Circuit Judge:

We once again consider whether a California-state

prisoner is entitled to statutory tolling under the

Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”). Because we hold that Petitioner-Appellant

Martin Valdez is not, we affirm the district court’s dismissal

of Valdez’s federal habeas petition as untimely.

4 VALDEZ V. MONTGOMERY

I

Over the course of two jury trials, Valdez was convicted

of murder, attempted murder, assault with a firearm, and

robbery. People v. Valdez, No. E053309, 2013 WL

1770856, at *1 (Cal. Ct. App., Apr. 25, 2013) (unpublished).

The trial court sentenced Valdez to life without the

possibility of parole, plus seventy years to life, plus nine

years. Id. Valdez appealed his conviction to the California

Court of Appeal, which affirmed. Id. at *2. The California

Supreme Court then denied Valdez’s petition for review on

July 31, 2013.

Valdez filed his first state habeas petition in California

Superior Court on April 10, 2014. The court denied that

petition on May 15, 2014. Almost one year later, in April

2015, Valdez filed his second state petition in the California

Court of Appeal, asserting the same claims. 1 The court

denied that petition without explanation. Valdez then filed

his third state petition in the California Supreme Court on

June 10, 2015, again raising the same claims. The court

denied that petition without explanation. 2

1

California has a unique postconviction review system. Rather than

appealing adverse decisions, prisoners must file a new, original habeas

petition at each court level. In practice, however, California’s system

operates like a normal appellate system, and the Supreme Court and this

court treat it as analogous to a normal appellate system. See Evans v.

Chavis, 546 U.S. 189, 192–93 (2006); Carey v. Saffold, 536 U.S. 214,

221–25 (2002); Curiel v. Miller, 830 F.3d 864, 870 n.3 (9th Cir. 2016)

(en banc).

2

Valdez also filed a second round of state habeas petitions. Those

petitions are irrelevant to this appeal, except as briefly discussed below.

VALDEZ V. MONTGOMERY 5

Valdez constructively filed his current federal petition

for writ of habeas corpus in the district court on March 1,

2016, raising the same claims he had raised in the state

proceedings. After an initial review, the district court

ordered Valdez to show cause why his petition should not be

dismissed as untimely. Valdez responded that he is entitled

to tolling because he was waiting for the California Supreme

Court to decide People v. Elizalde, 351 P.3d 1010 (Cal.

2015), a case highly relevant to one of Valdez’s claims. 3

Valdez also argued that tolling applies because his case is

complex: it involved “two trials, over 6,000 pages of

transcripts, and . . . the prosecution sought the death

penalty.”

The Magistrate Judge was not persuaded and

recommended that the district court dismiss Valdez’s

petition as untimely. Valdez objected to the magistrate’s

findings and recommendations, but the district court adopted

them and dismissed Valdez’s petition.

Valdez filed a timely notice of appeal. We granted

Valdez a Certificate of Appealability and appointed counsel.

On appeal, Valdez contends that he is entitled to statutory

tolling. 4 In the alternative, he contends that we should

3

The State concedes Elizalde is relevant.

4

The district court held that Valdez is not entitled to equitable

tolling. Valdez does not challenge that holding on appeal. Any

challenge is therefore waived. See, e.g., Bohmker v. Oregon, 903 F.3d

1029, 1040 n.6 (9th Cir. 2018).

6 VALDEZ V. MONTGOMERY

remand the case to the district court for further factual

development. 5

II

Because Valdez’s conviction became final and he filed

his federal habeas petition after the enactment of AEDPA,

AEDPA’s one-year statute of limitations applies. See

Campbell v. Henry, 614 F.3d 1056, 1058 (9th Cir. 2010).

We review de novo the district court’s dismissal of Valdez’s

federal habeas petition as untimely. Id.

III

AEDPA “affords a state prisoner one year from the end

of the direct review process in state court to apply in federal

court for a writ of habeas corpus . . . .” Campbell, 614 F.3d

at 1058. AEDPA’s statute of limitations is tolled, however,

while a “properly filed” state habeas petition is pending in

state court. 28 U.S.C. § 2244(d)(2). “A state habeas petition

is ‘pending’ as long as the ordinary state collateral review

process continues.” Trigueros v. Adams, 658 F.3d 983, 988

(9th Cir. 2011) (citing Carey v. Saffold, 536 U.S. 214, 219–

20 (2002)).

We have previously held that if a California prisoner

timely files his or her initial state habeas petition, AEDPA’s

statute of limitations is tolled while the state court considers

the petition. See, e.g., Velasquez v. Kirkland, 639 F.3d 964,

967 (9th Cir. 2011). In California, a state habeas petition is

5

Valdez also contends that we should hold this case in abeyance

pending the California Supreme Court’s response to the question we

certified in Robinson v. Lewis, 795 F.3d 926 (9th Cir. 2015). We find it

unnecessary to do so. We can, and do, resolve this appeal based on

current precedent.

VALDEZ V. MONTGOMERY 7

“timely if filed within a ‘reasonable time.’” Evans v. Chavis,

546 U.S. 189, 192 (2006) (quoting In re Harris, 855 P.2d

391, 398 n.7 (Cal. 1993)). If the state court denies that

petition, then as long as the prisoner timely files another

petition in a higher court, AEDPA’s statute of limitations is

tolled for “the days between (1) the time the lower state court

reached an adverse decision, and (2) the day [the prisoner]

filed a petition in the higher state court.” Id. at 193; see also

Saffold, 536 U.S. at 221–25. This is often referred to as

“gap” tolling.

But if a California prisoner does not timely file his or her

first state habeas petition, then the prisoner is not entitled to

tolling. See, e.g., Bonner v. Carey, 425 F.3d 1145, 1148–49

(9th Cir. 2005), amended by 439 F.3d 993 (9th Cir. 2006).

Similarly, if a prisoner timely files his or her first state

habeas petition but does not timely file a second petition,

then the prisoner is not entitled to tolling for the period

following the denial of the first petition. See, e.g.,

Velasquez, 639 F.3d at 968 (prisoner was not entitled to

statutory tolling because he waited 91 days after denial of his

first state habeas petition to file his second, without

explanation); Chaffer v. Prosper, 592 F.3d 1046, 1048 (9th

Cir. 2010) (per curiam) (prisoner was not entitled to statutory

tolling because he waited 115 days after denial of his first

state habeas petition to file his second, without explanation).

The parties agree that unless the statute of limitations

was tolled here from May 15, 2014—when the California

Superior Court denied Valdez’s first state habeas petition—

until April 29, 2015—when Valdez filed his second state

habeas petition in the California Court of Appeal—Valdez’s

federal habeas petition was untimely. Valdez “bears the

burden of proving that the statute of limitation was tolled.”

Banjo v. Ayers, 614 F.3d 964, 967 (9th Cir. 2010). He makes

8 VALDEZ V. MONTGOMERY

two contentions as to why he is entitled to tolling. We

address, and reject, both.

A

Valdez first contends that, because the California

Superior Court held that his first state habeas petition was

timely, and the California Court of Appeal denied his second

state habeas petition without explanation, 6 under the “look

through” doctrine, we should presume that the Court of

Appeal adopted the Superior Court’s reasoning and held that

Valdez’s second state habeas petition was timely.

The “look through” doctrine provides that “[w]hen at

least one state court has rendered a reasoned decision, but

the last state court to reject a prisoner’s claim issues an order

‘whose text or accompanying opinion does not disclose the

reason for the judgment,’ we ‘look through’ the mute

decision and presume the higher court agreed with and

adopted the reasons given by the lower court.” Curiel v.

Miller, 830 F.3d 864, 870 (9th Cir. 2016) (en banc) (quoting

Ylst v. Nunnemaker, 501 U.S. 797, 802–06 (1991)). That

doctrine has universally been applied in cases where the

court rendering a reasoned decision and a later court making

a summary determination were facing precisely the same

issue. See, e.g., Ylst, 501 U.S. at 803 (“Where there has been

one reasoned state judgment rejecting a federal claim, later

unexplained orders upholding that judgment or rejecting the

same claim rest upon the same ground.”); Bonner, 425 F.3d

at 1148–49, 1148 n.13 (looking through unexplained

decisions of the California Court of Appeal and California

Supreme Court to a California Superior Court decision

6

Its decision states: “The petition for writ of habeas corpus is

DENIED.”

VALDEZ V. MONTGOMERY 9

holding that a petition was untimely to conclude that the

petition was untimely and the prisoner was not entitled to

statutory tolling); Casey v. Moore, 386 F.3d 896, 918 n.23

(2004) (“We cannot ‘look through’ to see what the state

appeals court did on the merits of Casey’s case, because the

merits of the federal issue were not raised until Casey

appealed.”).

For that reason, the “look through” doctrine does not

provide a basis for holding that Valdez’s second state habeas

petition was timely. Whether Valdez’s second state habeas

petition was timely filed in the Court of Appeal is a different

and entirely distinct issue from whether his habeas petition

in the Superior Court was timely filed. Cf. Kernan v.

Hinojosa, 136 S. Ct. 1603, 1606 (2016) (per curiam) (“look

through” doctrine inapplicable where “[i]mproper venue

could not possibly have been a ground for the high court’s

summary denial of Hinojosa’s claim”). Specifically, the

question here is whether Valdez timely filed his second state

habeas petition in the Court of Appeal “within a ‘reasonable

time’” following the Superior Court’s “adverse

determination.” Chavis, 546 U.S. at 191, 192–93 (quoting

In re Harris, 855 P.2d at 398 n.7). The question is not

whether Valdez’s first state habeas petition was timely—a

question the “look through” doctrine could answer. See

Bonner, 425 F.3d at 1148–49, 1148 n.13. Because the “look

through” doctrine cannot answer whether Valdez’s second

state habeas petition was timely, we address that question

ourselves.

B

If a California court has held that a state habeas petition

was timely or untimely, we are bound by that decision. See

Robinson v. Lewis, 795 F.3d 926, 929 (9th Cir. 2015) (“If a

California court states it has dismissed a state habeas petition

10 VALDEZ V. MONTGOMERY

because the petition was untimely, ‘that would be the end of

the matter.’” (quoting Saffold, 536 U.S. at 226)); Trigueros,

658 F.3d at 990 (“[W]e rely on the California Supreme

Court’s orders practice explained in Robbins and conclude

that it considered Trigueros’s petition timely because the

California Supreme Court had the timeliness question before

it, and did not cite to cases involving a timeliness procedural

bar.”). Here, the California Court of Appeal dismissed

Valdez’s second state habeas petition without explanation.

That decision does not provide a basis for concluding that

the petition was timely. See Chavis, 546 U.S. at 197 (“If the

appearance of the words ‘on the merits’ does not

automatically warrant a holding that the filing was timely,

the absence of those words could not automatically warrant

a holding that the filing was timely.” (emphasis in original));

Curiel, 830 F.3d at 871 (“The Supreme Court has

admonished us in the past not to assume that a California

court found a state habeas petition to be timely from the

court’s silence on the question.”).

Instead, we “must . . . examine the delay . . . and

determine what the state courts would have held in respect

to timeliness.” Chavis, 546 U.S. at 198. The question is

whether Valdez filed his second state habeas petition “within

a ‘reasonable time.’” Id. at 192 (quoting In re Harris, 855

P.2d at 398 n.7). To answer that question, the U.S. Supreme

Court has instructed that we reference the “‘short period[s]

of time,’ 30 to 60 days, that most States provide for filing an

appeal.” Id. at 201 (alteration in original) (quoting Saffold,

536 U.S. at 219). Heeding that instruction, we have

“indicated that the Supreme Court’s 60-day limit is the

‘benchmark’ from which we will not depart without a

showing of good cause,” and we have held that unexplained

delays of 81, 101, and 115 days are unreasonable. Robinson,

795 F.3d at 930–31.

VALDEZ V. MONTGOMERY 11

Here, the California Superior Court denied Valdez’s first

state habeas petition on May 15, 2014. Valdez then filed his

second state habeas petition on April 29, 2015. Because

Valdez waited almost one year to file his second state

petition (the gap was about two weeks short of a year), it was

untimely under our decisions unless Valdez can establish

good cause. See Robinson, 795 F.3d at 929 (“California

courts allow a longer delay if the petitioner demonstrates

good cause.” (citing In re Robbins, 959 P.2d 311, 317 (Cal.

1998)).

Valdez presses two arguments on this point. First, he

contends that he waited to file his second state habeas

petition until the California Supreme Court decided Elizalde,

which establishes good cause. We reject that contention.

Valdez filed his second state habeas petition before the

California Supreme Court decided Elizalde, “so waiting

until [Elizalde] was decided does not explain the delay.”

Waldrip v. Hall, 548 F.3d 729, 737 (9th Cir. 2008). 7 In re

Lucero, 132 Cal. Rptr. 3d 499, 503–04 (Ct. App. 2011)—on

which Valdez relies—is inapposite. Unlike the prisoner

there, Valdez did not wait to file his second state habeas

petition until after a new decision; he filed it before.

In the alternative, Valdez claims that his delay was

reasonable because of the size of the state-court record and

complexity of the case. This contention is likewise

insufficient to establish good cause. Valdez timely filed his

first state habeas petition. That petition raised the same

claims he then raised in his second state petition. He has

7

Valdez makes much of the fact that he filed a second round of

habeas petitions based on Elizalde, asserting that doing so demonstrates

his diligence. But that assertion does not explain why Valdez filed his

second state habeas petition before Elizalde was decided.

12 VALDEZ V. MONTGOMERY

offered no explanation for why he could timely file his first

petition but not his second. See Velasquez, 639 F.3d at 968

(“[E]ach of Velasquez’s habeas petitions is nearly identical

to the petition that came before it. It is not reasonable that

Velasquez’s counsel would need excess time essentially to

re-file an already-written brief.”).

In summary, the district court correctly held that Valdez

is not entitled to statutory tolling.

IV

We next address Valdez’s contention that the district

court should not have dismissed his federal habeas petition

without requiring the State to respond and lodge the state-

court record. Valdez contends that the district court could

not determine whether his state habeas petitions were timely

filed absent the state-court record.

A district court may summarily dismiss a federal habeas

corpus petition sua sponte if “it plainly appears from the

petition and any attached exhibits that the petitioner is not

entitled to relief . . . .” Rule 4 of the Rules Governing Section

2254 Cases. A district court should do so, however, only

after “provid[ing] the petitioner with adequate notice and an

opportunity to respond.” Herbst v. Cook, 260 F.3d 1039,

1043 (9th Cir. 2001). Moreover, because “federal habeas

courts” have a duty to “independently [review] the basis for

the state court’s decision,” a district court must “obtain and

review the relevant portions of the state court record,” or

hold an evidentiary hearing, as necessary to discharge its

duty. Nasby v. McDaniel, 853 F.3d 1049, 1053 (9th Cir.

2017).

Valdez, in his federal habeas petition, listed the date the

California Supreme Court denied his petition for review on

VALDEZ V. MONTGOMERY 13

direct appeal, the dates he filed his state habeas petitions, and

the dates the state courts denied those petitions. The district

court, after ordering Valdez to show cause and thereby

providing Valdez “adequate notice and an opportunity to

respond,” Herbst, 260 F.3d at 1043, had Valdez’s

explanations for why he delayed in filing his second state

habeas petition. Finally, the district court had the California

Court of Appeal’s decision dismissing Valdez’s second state

petition because Valdez attached that decision as an exhibit

to his objections to the magistrate judge’s findings and

recommendations. As demonstrated in Section III, the

foregoing information is all that is necessary to conclude that

Valdez’s federal habeas petition was untimely. The district

court did not err by not ordering the State to respond and

lodge the state-court record. 8

V

Because we conclude that Valdez is not entitled to

statutory tolling for the period following the California

Superior Court’s denial of his first state habeas petition,

Valdez’s federal habeas petition is untimely, and we affirm

the district court’s dismissal of his petition.

AFFIRMED.

8

Valdez asks us to take judicial notice of various state-court

documents because they purportedly show why the district court needed

to order the State to lodge the state-court record. Because we can, and

do, affirm the district court’s decision on the record before it, we DENY

Valdez’s motion for judicial notice as MOOT.