United States District Court

For the Northern District of California

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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

ALVIN RICHARDSON,

Plaintiff,

 v.

MATTHEW CATE,

Defendant. /

No. C 09-02227 WHA

ORDER DENYING

RESPONDENT’S

MOTION TO DISMISS

INTRODUCTION

This is a habeas action brought by a state prisoner under 28 U.S.C. 2254. Respondent has

moved to dismiss the petition for being untimely. For the reasons set out below, the motion to

dismiss is DENIED.

STATEMENT

Petitioner was convicted in 2001 of second-degree murder and was sentenced to an

indeterminate term of 15 years to life. Petitioner filed a direct appeal and an accompanying state

habeas petition. The California Court of Appeal affirmed the judgment and denied the habeas

petition without prejudice, directing the petitioner to develop additional facts in a new habeas

petition. Petitioner sought rehearing of the Court of Appeal’s denial of the habeas petition,

which was denied. Petitioner filed a further appeal to the California Supreme Court which was

also denied in September 16, 2003.

On June 11, 2003, while his first appeal to the California Supreme Court was still pending,

petitioner filed a new habeas petition in Alameda County Superior Court. After an evidentiary

hearing, that petition was denied on December 4, 2006.

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United States District Court

For the Northern District of California

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On April 18, 2007, petitioner filed his petition with the California Court of Appeal, which

was denied on September 20, 2007. On October 23, 2007, petitioner filed a petition with the

California Supreme Court, which was denied on June 18, 2008. Petitioner then filed the instant

federal petition on May 20, 2009

ANALYSIS

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) imposed for the

first time a statute of limitations on petitions for writs of habeas corpus filed by state prisoners. 

Petitions filed by prisoners challenging non-capital state convictions or sentences must be filed

within one year of the latest of the date on which: (1) the judgment became final after the

conclusion of direct review or the time passed for seeking direct review, (2) an impediment to

filing an application created by unconstitutional state action was removed, if such action

prevented petition from filing, (3) the constitutional right asserted was recognized by the Supreme

Court, if the right was newly recognized by the Supreme Court and made retroactive to cases on

collateral review, or (4) the factual predicate of the claim could have been discovered through the

exercise of due diligence. 28 U.S.C. 2244(d)(1). Time during which a properly filed application

for state post-conviction of other collateral review is pending is excluded from the one-year time

limit. 28 U.S.C. 2244(d)(2). 

The one-year period is calculated according to the general rule for counting time in federal

courts, Rule 6(a) of the Federal Rules of Civil Procedure. Patterson v. Stewart, 251 F.3d 1243,

1246 (9th Cir. 2001). That is, “the day of the act, event, or default from which the designated

period of time begins to run shall not be included” in the one-year limitation period. Fed. R. Civ.

P. 6(a). This is referred to as the “anniversary method” because, absent any tolling, the expiration

date of the limitation period will be the same date as the triggering event in the following year. 

Patterson, 251 F.3d at 1246.

Petitioner is entitled to statutory tolling for the time he had a state habeas petition pending. 

Additionally, the time interval between a lower court decision and a filing of a new petition in a

higher court is treated as time the petition is pending as long as the petition did not “unreasonably

delay” in seeking review. Carey v. Saffold, 536 U.S. 214, 221–23 (2002). This means that a

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state habeas petition is pending “in the absence of undue delay,” while a California prisoner

“complete[s] a full round of [state] collateral review” all the way up to the California Supreme

Court. Biggs v. Duncan, 339 F.3d 1045, 1048 (9th Cir. 2002) (citations and internal quotation

marks omitted). 

Respondent focuses on the 135-day gap between December 4, 2006 — when the Superior

Court denied respondent’s state habeas petition — and April 18, 2007 — when petitioner filed his

petition with the California Court of Appeal. Respondent asserts that petitioner is not entitled to

statutory tolling for that gap because 135 days was too long to be a “reasonable” delay. Petitioner

filed his instant federal petition on May 20, 2009, which was 336 days after his petition was

denied by the California Supreme Court. Respondent argues that both the 135-day gap and 336-

day gap should be counted against defendant, which would make this federal petition untimely on

the grounds that it would exceed the one-year limitation by 106 days.

To determine whether petitioner filed his petition in the Court of Appeal without

reasonable delay, this Court must evaluate “all relevant circumstances.” Carey, 536 U.S. at 226. 

Petitioner has offered three reasons to explain the 135-day delay at issue in this motion. First, he

asserts that the denial of the petition was a devastating blow to him and that he became suicidal

after learning that his habeas petition had been denied and tried to commit suicide several times

(Opp. 5; Richardson Decl. ¶ 5). Second, petitioner’s counsel avers that he was undergoing a

personally difficult time because his father-in-law had passed away on November 21, 2006,

which required counsel to undertake duties as a trustee to carry out his father-in-law’s

complicated estate plan (Opp. 4; Kleven Decl. ¶¶ 4–5). Additionally, counsel underwent a knee

surgery on December 22, 2006, which required extensive rehabilitation and distracted him from

his law practice. Third, petitioner had to address new evidence that was presented during the

evidentiary hearing in front of the Superior Court as well as the Superior Court’s lengthy decision

(Ibid.). Consequently, the petition that was filed in the Court of Appeal on April 18, 2007, was

almost three times as long as the petition that had been filed in the Superior Court. 

This order agrees that the delay of 135 days was reasonable under the circumstances. The

opinions cited by respondent are inapposite. Respondent cites to Waldrip v. Hall, 548 F.3d 729,

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737 (9th Cir. 2008), which found that there was no justification for an eight-month delay based on

a petitioner’s lack of access to the law library when he was also represented by counsel. In

Waldrip, the fact that the prisoner was represented by counsel rendered his argument that the

delay in filing his petition should be excused by his lack of access to law library insignificant. 

Respondent also cites Lookingbill v. Cockrell, 293 F.3d 256 (5th Cir. 2007), where the Fifth

Circuit denied equitable tolling to a prisoner whose lawyer was “overburdened by a busy docket.” 

Id. at 264. In Lookingbill, the prisoner argued that his lawyer was busy and offered nothing more. 

Respondent also relies on Chaffer v. Prosper, 592 F.3d 1046 (9th Cir. 2010), which denied

statutory tolling to a petitioner with a 115-day gap between the denial of his first habeas petition

by the Superior Court and the filing of his second habeas petition in the California Court of

Appeal, as well as for the 101-day gap between the denial of his second habeas petition and the

filing of his third habeas petition in the California Supreme Court. However, the petitioner in

Chaffer offered no justification for these delays. 

Here, petitioner became suicidal, was placed in mental health ward and administrative

segregation and did not meet his counsel until February 9, 2007. Petitioner’s counsel faced a

family death, appointment as a trustee over a complicated estate plan, a major surgery and

rehabilitation. This is a far cry from being just busy, and together constitute more severe

circumstances than the circumstances in the opinions relied upon by respondent.

CONCLUSION

Respondent’s motion to dismiss is DENIED. Respondent shall answer the order to show

cause and file the record within sixty days of the date this order is entered. Petitioner’s traverse is

due within thirty days of service of the answer.

IT IS SO ORDERED.

Dated: April 13, 2010 WILLIAM ALSUP

UNITED STATES DISTRICT JUDGE

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