FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ANTHONY (TONY) GASTON,  No. 01-56367

Petitioner-Appellant, D.C. No.

v. CV-00-06612-

NM(Mc) ANNA RAMIREZ PALMER,

Respondent-Appellee.  O R D E R

GRANTING

PETITION FOR

REHEARING AND

AMENDING

OPINION 

Filed May 8, 2006

Before: Andrew J. Kleinfeld, Kim McLane Wardlaw, and

William A. Fletcher, Circuit Judges.

COUNSEL

Gerson Simon, Los Angeles, California, for the petitionerappellant.

Anthony (Tony) Gaston, California Medical Facility, Vacaville, California, for the petitioner-appellant.

Kyle Brodie, Michelle J. Pirozzi, AGCA — Office of the California Attorney General, Los Angeles, California, for the

respondent-appellee.

5115
ORDER

In light of the Supreme Court’s opinion in Evans v. Chavis,

126 S. Ct. 846 (2006), we grant the petition for panel rehearing. 

In Gaston v. Palmer, 417 F.3d 1030 (9th Cir. 2005), we

held that habeas petitioner Anthony Gaston had timely filed

in federal district court. In so holding, we concluded that he

was entitled to “gap” or “interval” tolling for the periods

between his applications for habeas corpus in state court, and

that he therefore filed within the one-year statute of limitations of the Antiterrorism and Effective Death Penalty Act

(“AEDPA”) (2000). 28 U.S.C. § 2244(d)(1). The gaps

between Gaston’s relevant filings in state court were as follows: 

(1) Gaston’s first application for habeas corpus was filed

in the California Court of Appeal. That application was

denied on February 27, 1996. AEDPA’s effective date is

April 24, 1996. Absent some kind of tolling, the one-year statute of limitations began running on that date. Gaston’s second

application was filed in Superior Court on June 9, 1997. The

gap between the denial of his first application and the filing

of his second was about 15 months. 

(2) Gaston’s second application was denied by the Superior Court on July 17, 1997. Gaston then filed a third application for habeas corpus in the California Supreme Court raising

unrelated state-law claims; because this application was unrelated to his applications raising federal claims, we disregard

it for purposes of tolling under AEDPA. Gaston’s fourth

application was filed in Superior Court on January 22, 1999.

The gap between the denial of his second application and the

filing of his fourth was about 18 months. 

(3) Gaston’s fourth application was denied by the Superior Court on the same day it was filed, January 22, 1999. His

5116 GASTON v. PALMER
fifth application was filed in the Court of Appeal on February

8, 1999. The gap between the denial of his fourth application

and the filing of his fifth was a little over two weeks. 

(4) Gaston’s fifth application was denied by the Court of

Appeal on April 27, 1999. His sixth application was filed in

the California Supreme Court on February 28, 2000. The gap

between the denial of his fifth application and the filing of his

sixth was about 10 months. 

The California Supreme Court denied Gaston’s sixth application on June 2, 2000, and he filed his federal petition for

habeas corpus on June 20, 2000. 

The Supreme Court in Chavis held that, absent a clear indication to the contrary by the California legislature or a California court, an unexplained and unjustified gap between

filings of six months was “unreasonable”: 

Six months is far longer than the “short period[s]

of time,” 30 to 60 days, that most States provide for

filing an appeal to the state supreme court. It is far

longer than the 10-day period California gives a losing party to file a notice of appeal in the California

Supreme Court. We have found no authority suggesting, nor found any convincing reason to believe,

that California would consider an unjustified or

unexplained 6-month filing delay “reasonable.” Nor

do we see how an unexplained delay of this magnitude could fall within the scope of the federal statutory word “pending” as interpreted in Saffold. 

Chavis, 126 S. Ct. at 854 (alteration in original) (citations

omitted). 

In our earlier opinion in this case, we held that Gaston’s

asserted disabilities, as well as his claimed lack of access to

legal materials, did not justify equitable tolling or constitute

GASTON v. PALMER 5117
an “impediment” to filing under 28 U.S.C. § 2244(d)(1)(B).

Gaston, 417 F.3d at 1034-36. Given the length of the delays

between Gaston’s filings in the California state courts, given

the lack of a clear statement by the California legislature or

the California courts that Gaston’s delays are “reasonable,”

and given the lack of explanation or justification for the

delays, we now hold that Gaston is not entitled to “gap” tolling for the delays described above of 15 months, 18 months,

and 10 months. It is unnecessary for us to decide whether

Gaston’s second, fourth, and sixth applications in state court

were improperly filed within the meaning of Pace v. DiGuglielmo, 544 U.S. 408 (2005). 

We therefore GRANT the petition for panel rehearing and

revise, in the manner just indicated, our opinion in Gaston v.

Palmer, 417 F.3d 1030 (9th Cir. 2005). As a result of this

revision, we AFFIRM the decision of the district court dismissing Gaston’s federal petition for habeas corpus as not

timely filed. 

It is so ordered. 

5118 GASTON v. PALMER



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