FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

TERRELL CROSS,  No. 08-17324

Petitioner-Appellant, D.C. No.

v.  3:07-cv-03941-

WHA D.K. SISTO, Warden,

Respondent-Appellee. OPINION 

Appeal from the United States District Court

for the Northern District of California

William Alsup, District Judge, Presiding

Argued and Submitted

August 8, 2011—San Francisco, California

Filed April 18, 2012

Before: Diarmuid F. O’Scannlain, Susan P. Graber, and

Carlos T. Bea, Circuit Judges.

Opinion by Judge Bea

4257
COUNSEL

Mary E. Pougiales, Novato, California, for the petitionerappellant.

Edmund G. Brown, Jr., Attorney General of California, San

Francisco, California. Dane R. Gillette, Chief Assistant Attorney General, San Francisco, California, Gerald A. Engler,

Senior Assistant Attorney General, San Francisco, California,

Peggy S. Ruffra, Supervising Deputy Attorney General, San

Francisco, California, Dorian Jung, Deputy Attorney General,

San Francisco, California, for the respondent-appellee.

OPINION

BEA, Circuit Judge:

California prisoner Terrell Cross appeals the district court’s

denial of his petition for a writ of habeas corpus, claiming that

the district court incorrectly interpreted an earlier ruling by

the California Supreme Court on one of Cross’s state habeas

petitions. The district court read that ruling as denying Cross’s

state court relief because Cross’s petition in state court had

been untimely filed. The district court therefore denied

Cross’s federal petition on the ground that it was barred by

the one-year statute of limitations under 28 U.S.C.

§ 2244(d)(1)(A), which tolls the statute of limitations during

the pendency of a state court petition, but only if that state

petition is properly and timely filed. This case requires us to

determine whether, when the California Supreme Court

denies a habeas petition with citations to Ex parte Swain, 209

4260 CROSS v. SISTO
P.2d 793, 796 (Cal. 1949), and People v. Duvall, 886 P.2d

1252, 1258 (Cal. 1995), the denial is necessarily based on

untimeliness.

We agree with Cross that the answer is no and that the district court did not correctly apply California law in determining that the California Supreme Court’s denial of Cross’s

petition with citation to Swain and Duvall meant that Cross’s

petition before the California Supreme Court was untimely.

Because the federal statute of limitations is tolled during the

pendency of timely filed state petitions, Cross’s federal petition was therefore timely, and we reverse and remand to the

district court to consider the petition on the merits.

I. Facts and Procedural History

In 2003, Terrell Cross was convicted in a California trial

court of murder in the second degree and other associated

crimes. Cross was sentenced to 54 years to life in prison.

Cross unsuccessfully appealed to the California Court of

Appeal and the California Supreme Court. The California

Supreme Court denied Cross’s petition for review on January

12, 2005. 

Cross’s direct appeal became final 90 days later, on April

12, 2005, when Cross’s time to petition the United States

Supreme Court for a writ of certiorari expired. Cross claims

that his lawyer did not inform him of the California Supreme

Court’s denial of his petition for review. While Cross lists

April 12, 2005, as the date of the final California decision in

his habeas application to the California superior court, he

claims that it was not until July 2005 that he became aware

that his direct appeal was final.

On July 27, 2005, Cross filed a petition for habeas corpus

with the Alameda County Superior Court, claiming ineffective assistance of trial counsel and ineffective assistance of

appellate counsel. On August 8, 2005, the superior court

CROSS v. SISTO 4261
denied Cross’s petition for failure to state a prima facie case

for relief. 

On September 13, 2005, Cross filed a petition for habeas

corpus with the California Court of Appeal, First Appellate

District, citing the same grounds for relief as the petition in

superior court. On September 14, 2005, the California Court

of Appeal denied Cross’s petition without comment or citation. 

Cross filed a petition for habeas corpus with the California

Supreme Court on September 29, 2005. On July 19, 2006, the

California Supreme Court denied Cross’s petition without

comment but with citation to Swain, 209 P.2d at 796, and

Duvall, 886 P.2d at 1258. 

Cross began a second round of state habeas petitions when

he filed a new petition in the California Court of Appeal on

January 23, 2007. The California Court of Appeal denied the

petition on January 30, 2007 “without prejudice to petitioner

seeking relief in the first instance in the County of Alameda

Superior Court.”

Cross proceeded to file his habeas petition in Alameda

Superior Court on March 6, 2007. This petition was denied on

March 7, 2007, for failure to state a prima facie case for relief.

Cross filed his next habeas petition in the California Court

of Appeal on April 2, 2007, and his petition was denied without comment or citation on April 18, 2007. Cross filed a

habeas petition in the California Supreme Court on April 30,

2007. The California Supreme Court denied Cross’s petition

without citation or comment on June 20, 2007. The habeas

petitions in Cross’s second round of petitions cited different

grounds for relief than his initial round of habeas petitions.1

1The second round of habeas petitions asserted: (1) the trial court erred

in excluding evidence about a 9 mm handgun; (2) the Court of Appeal

4262 CROSS v. SISTO
Cross filed a petition for habeas corpus in federal district

court on July 31, 2007. Cross contends that his federal habeas

petition was ready to file on July 2, 2007, but that it was

delayed because it took prison officials three weeks to file his

in forma pauperis application. The district court denied

Cross’s habeas petition on the ground that it was untimely.

The district court reasoned that because the California

Supreme Court cited Swain when dismissing Cross’s petition,

that Court had dismissed his state habeas petition solely on

grounds it was untimely filed. An untimely state habeas petition is not considered “properly filed” and thus does not toll

the federal statute of limitations. Allen v. Siebert, 552 U.S. 3,

5 (2007) (per curiam). This court granted a certificate of

appealability on the issues of (1) whether Cross’s state petitions were “properly filed” for the purposes of statutory tolling2

and (2) whether Cross is entitled to equitable tolling with

respect to the delay in notifying him when his direct appeal

became final. 

II. Standard of Review

This court reviews de novo the district court’s dismissal of

a petition for habeas corpus filed pursuant to 28 U.S.C.

§ 2254. Ramirez v. Yates, 571 F.3d 993, 997 (9th Cir. 2009).

This court reviews the underlying findings of fact for clear

error. Id. 

erred in denying a motion to dismiss two counts of assault with a deadly

weapon; (3) Cross’s right to a trial by an impartial jury under the Fifth,

Sixth, and Fourteenth Amendments was violated; (4) ineffective assistance

of trial counsel for failure to investigate and call witnesses; (5) prosecutorial misconduct that violated Cross’s right to due process; and (6) ineffective assistance of appellate counsel that deprived Cross of his Sixth

Amendment rights. These claims are largely identical to the first six

claims presented in Cross’s federal habeas petition.

2

“Statutory tolling” refers to the suspension of the running of a statute

of limitations as provided by statute—in this case, 28 U.S.C. § 2244(d)(2).

See Allen, 552 U.S. at 5; see also Black’s Law Dictionary (9th ed. 2009)

(entry on “tolling statute”). 

CROSS v. SISTO 4263
III. Analysis

A. The statute of limitations was tolled while Cross’s

first round state habeas petition to the California

Supreme Court was pending.

[1] Under the Antiterrorism and Effective Death Penalty

Act of 1996 (AEDPA), there is a one-year statute of limitations for the filing of federal habeas corpus petitions. The statute’s time runs from the date on which the state judgment of

conviction becomes final. 28 U.S.C. § 2244(d)(1)(A).3 The

statute of limitations is tolled so long as a properly filed application for habeas corpus is pending in state court. 28 U.S.C.

§ 2244(d)(2).4“[A]n application is ‘properly filed’ when its

delivery and acceptance are in compliance with the applicable

[state] laws and rules governing filings.” Artuz v. Bennett, 531

U.S. 4, 8 (2000) (emphasis omitted). Whether an application

has been properly filed “is quite separate from . . . whether the

claims contained in the application are meritorious and free

of procedural bar.” Id. at 9. 

[2] A state habeas petition is not “properly filed” for purposes of statutory tolling under AEDPA if the state petition

was determined by the state court to be untimely as a matter

3

28 U.S.C. § 2244(d)(1)(A) states: 

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. The limitation period shall run from the latest of— 

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking

such review . . . . 

4

28 U.S.C. § 2244(d)(2) states: 

The time during which a properly filed application for State postconviction or other collateral review with respect to the pertinent

judgment or claim is pending shall not be counted toward any

period of limitation under this subsection. 

4264 CROSS v. SISTO
of state law. Allen, 552 U.S. at 5-6 (citing Pace v. DiGuglielmo, 544 U.S. 408, 414, 417 (2005)). Hence, untimely state

habeas corpus petitions do not toll AEDPA’s statute of limitations. Evans v. Chavis, 546 U.S. 189, 197 (2006). California

applies a reasonableness standard to determine whether state

habeas petitions are timely filed. Id. at 197 (citing Carey v.

Saffold, 536 U.S. 214, 221 (2002)). The United States

Supreme Court has held that California’s reasonableness standard is commensurate with the limitations of other states,

which are 30 or 45 days. Carey, 536 U.S. at 222. In the

absence of a clear indication from the California Supreme

Court about the timeliness of a petition, this court must determine whether the delay between petitions is reasonable.

Evans, 546 U.S. at 198.

[3] Cross’s first round state habeas petition to the California Supreme Court was denied with citations to Swain, 209

P.2d at 796, and Duvall, 886 P.2d at 1258. The district court

interpreted the California Supreme Court’s citations to Swain

and Duvall to mean that Cross’s habeas petition was untimely.

Swain requires that a habeas petitioner “allege with particularity the facts upon which he would have a final judgment overturned and that he fully disclose his reasons for delaying in

the presentation of those facts.” 209 P.2d at 796. The habeas

petition in Swain was denied without prejudice. Id. Duvall

also addresses the requirement that a petitioner plead sufficient facts, reiterating that a habeas petitioner should “state

fully and with particularity the facts on which relief is

sought.” 886 P.2d at 1258. 

[4] The district court’s interpretation is contrary to this

court’s interpretation of identical citations to Swain and

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

as amended by order, 447 F.3d 1165 (9th Cir. 2006). In Gaston, this court held:

In light of its citations to Swain and Duvall, we read

the California Supreme Court’s denial of Gaston’s

CROSS v. SISTO 4265
sixth habeas application as, in effect, the grant of a

demurrer, i.e., a holding that Gaston had not pled

facts with sufficient particularity. While Gaston’s

sixth application was thus procedurally deficient

under California law, it was not improperly filed

within the meaning of § 2244(d)(2). There is no indication that the application was time-barred . . . .

Thus, because Gaston’s sixth state application’s

delivery and acceptance was in compliance with the

applicable laws and rules governing filings, it was

“properly filed” despite being procedurally flawed,

and therefore may properly be used for purposes of

§ 2244(d)(2) tolling.

417 F.3d at 1039 (citations, internal quotation marks, and

alterations omitted). Even before Gaston, this court had determined that Swain meant merely dismissal without prejudice,

with leave to amend to plead required facts with particularity.

King v. Roe, 340 F.3d 821 (9th Cir. 2003) (per curiam). In

King, this court held that Swain and Duvall were both cases

that “require that one must allege with sufficient particularity

the facts warranting habeas relief and allow amendment to

comply.” Id. at 823. King further explained that a citation to

Swain means denial “without prejudice” to re-plead.5Id. King

did not find that the California Supreme Court’s citations to

these two cases barred the petitioner’s state habeas claim as

untimely and instead addressed whether the petitioner’s subsequent habeas petitions constituted a new round of state petitions. Id. 

The interpretation in King is consistent with the definition

of “properly filed” in Artuz because, while the claims contained in Cross’s habeas petition may be otherwise procedur5

If the demurrer were granted on grounds of the statute of limitations,

or another time limit to commencement of action, no re-pleading would

be allowed; the demurrer would have been granted “with prejudice.” See

E-Fab, Inc. v. Accountants, Inc. Servs., 64 Cal. Rptr. 3d 9 (Ct. App. 2007).

4266 CROSS v. SISTO
ally deficient, the habeas petition itself was properly filed.

“Swain is cited by the California Supreme Court to indicate

that claims have not been alleged with sufficient particularity.

That deficiency, when it exists, can be cured in a renewed

petition.” Kim v. Villalobos, 799 F.2d 1317, 1319 (9th Cir.

1986) (reversing a district court’s dismissal of a habeas petition for failure to exhaust state remedies; remanding to the

district court). This description is also consistent with the

holding of Swain, in which the court granted the petitioner

leave to amend his habeas application. If the California

Supreme Court had determined the habeas application in

Swain to be untimely or improperly filed, it would not have

granted leave to amend. See E-Fab, 64 Cal. Rptr. 3d 9.

The district court in the present case determined that

because Swain is referred to as an “untimeliness” bar, a citation to Swain must mean that the habeas petition itself is

untimely. However, the case that the district court cites to

support this contention did not find the habeas petition at

issue to be untimely. See Washington v. Cambra, 208 F.3d

832, 833 (9th Cir. 2000). While Washington referred to Swain

as the “untimeliness” bar, the case analyzed whether the California Supreme Court’s citations to Swain and Ex parte

Dixon, 264 P.2d 513, 515 (Cal. 1953),6 provided “adequate

and independent” grounds for the California Supreme Court’s

denial of a habeas petition. Washington, 208 F.3d at 834.

Once this court in Washington had determined that Dixon

failed to provide an independent state law basis for denial of

a habeas petition, Washington did not further analyze the

meaning of the California Supreme Court’s citation to Swain.

Id.

[5] Further, the cases that the State contends treat Swain as

an untimeliness bar do not treat a citation to Swain by itself

6Dixon held that “[i]n the absence of special circumstances . . . the writ

will not lie where the claimed errors could have been, but were not, raised

upon a timely appeal from a judgment of conviction.” 264 P.2d at 514. 

CROSS v. SISTO 4267
as conclusive proof of untimeliness, but instead look to see if

the claims brought in a habeas petition are unduly delayed, if

the habeas petition adequately justifies any delay in raising

these claims, or if there are independent and adequate state

law grounds that bar federal review. See In Re Saunders, 981

P.2d 1038, 1042 (Cal. 1999) (briefly referring to Swain as a

timeliness bar, but ultimately holding a challenge to a death

sentence timely under a different standard); Chaffer v. Prosper, 592 F.3d 1046, 1048 (9th Cir. 2010) (per curiam) (holding that habeas petitions that were delayed more than 100

days and included no justification for the delay were

untimely); La Crosse v. Kernan, 244 F.3d 702, 704-05 (9th

Cir. 2001) (holding that a state court’s citations to Swain and

Dixon did not constitute independent and adequate state law

grounds that could bar federal review of a habeas petition);

Thompson v. Calderon, 122 F.3d 28, 29 (9th Cir. 1997)

(order) (holding that a claim in a habeas petition was substantially delayed without good cause). In none of these cases did

the state court’s citation to Swain by itself mean that a habeas

application was untimely filed. Thus, the State’s assertion that

Swain is an automatic untimeliness bar is inaccurate. Instead,

King, Gaston, and Kim’s interpretations of a citation to Swain

correctly treat it as a grant of a demurrer,7 rendering the

habeas petition procedurally deficient yet properly filed under

California law.

B. Cross’s federal habeas petition is timely when 

statutory tolling is applied.

[6] AEDPA’s statute of limitations is tolled while a properly filed state habeas petition is pending, which is until it has

7We refer to a demurrer that requires more specific facts be pleaded, not

to a demurrer based on the statute of limitations. See Cal. Code Civ. Proc.

§ 430.10(e) (“The party against whom a complaint or cross-complaint has

been filed may object, by demurrer . . . to the pleading on any one or more

of the following grounds . . . [that t]he pleading does not state facts sufficient to constitute a cause of action.”). 

4268 CROSS v. SISTO
reached a “final resolution” in state court. Carey, 536 U.S. at

220. The denial of a habeas petition by the California

Supreme Court is final upon filing of the decision. Cal. Rule

of Court 8.532; see also Phelps v. Alameida, 569 F.3d 1120,

1125 (9th Cir. 2009) (discussing the rule amendment in 2002

to make the denial of such a petition final on filing). 

[7] A petitioner may be entitled to statutory tolling for

more than one separate round of state habeas petitions. Porter

v. Ollison, 620 F.3d 952, 958 (9th Cir. 2010); Smith v. Duncan, 297 F.3d 809, 814-15 (9th Cir. 2002), overruled on other

grounds by Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005);

accord Lovasz v. Vaughn, 134 F.3d 146, 148 (3d Cir. 1998);

cf. Saffold, 536 U.S. at 220-22; Welch v. Carey, 350 F.3d

1079, 1083 (9th Cir. 2003) (en banc). Even if a petitioner is

entitled to statutory tolling for more than one round of state

petitions, he still must file his federal petition within the oneyear statute of limitations under AEDPA, excluding the tolled

time.

In addition, statutory tolling applies to “intervals between

a lower court decision and a filing of a new petition in a

higher court . . . .” Carey, 536 U.S. at 223. A petitioner is thus

entitled to statutory tolling “not only for the time that his petitions were actually under consideration, but also for the intervals between filings, while he worked his way up the ladder,”

Biggs, 339 F.3d 1045, 1048 (9th Cir. 2003) (emphasis added)

(citing Carey, 536 U.S. at 223), so long as those filings are

timely, Carey, 536 U.S. at 225. As discussed above, in California, a filing is timely if filed within a “reasonable” amount

of time, usually within 30 or 45 days. Id. at 222-23.

The statute of limitations is not tolled from the time when

a direct state appeal becomes final to the time when the first

state habeas petition is filed because there is nothing “pending” during that interval. Nino v. Galaza, 183 F.3d 1003, 1006

(9th Cir. 1999). Petitioners are not entitled to statutory tolling

CROSS v. SISTO 4269
between rounds of state habeas petitions. Biggs, 339 F.3d at

1048.

[8] Cross’s federal habeas corpus petition is timely when

statutory tolling is correctly applied to his state habeas corpus

petitions. First, 106 days elapsed between the date the state

conviction became final (April 12, 2005) and the date Cross

filed his first state habeas petition with the Alameda County

Superior Court (July 27, 2005). During Cross’s first round of

habeas petitions, each petition was timely filed because all of

the intervals between Cross’s filings were reasonable under

Carey. Thirty-six days elapsed between the denial of Cross’s

petition in the superior court and the filing of his petition in

the California Court of Appeal, and 15 days elapsed between

the denial of his petition in the California Court of Appeal and

the filing of his petition with the California Supreme Court.

Therefore, Cross was entitled to statutory tolling while his

first round of state habeas petitions was pending, and no time

expired under AEDPA. 

[9] Then, 188 days elapsed between the final denial of his

first state habeas “round” (July 19, 2006) and his commencement of his second “round” of state habeas petitions (January

23, 2007). During Cross’s second round of state habeas petitions, each petition was timely as each of the three intervals

between filings was reasonable: those intervals were, respectively, 35 days, 26 days, and 12 days. These petitions were

denied first because Cross filed in the wrong court and then

because Cross failed to state a prima facie claim for relief; no

court stated that the petitions were denied as untimely. Therefore, Cross’s petitions were “properly filed” and Cross was

entitled to statutory tolling for the remainder of the time when

his second round of state habeas petitions was pending. See

Artuz, 531 U.S. at 8.

After Cross’s second round of habeas petitions was completed (June 20, 2007), 41 days elapsed before Cross filed his

federal habeas petition in district court (July 31, 2007). 

4270 CROSS v. SISTO
[10] The periods during which AEDPA’s statute of limitations ran therefore consist of the 106 days between when

Cross’s direct appeal became final and his first state habeas

application was filed, the 188 days between Cross’s two

rounds of state habeas petitions, and the 41 days between the

completion of Cross’s state petitions and the filing of his federal habeas petition. These intervals add up to a total of 335

days, which is less than the one-year statute of limitations.

Thus, Cross’s federal habeas petition was timely filed.8

IV. Conclusion

For the foregoing reasons, the district court’s judgment is

vacated. We remand Cross’s habeas petition to the district

court and instruct the district court to consider his petition on

the merits. 

VACATED AND REMANDED.

8Because we hold that Cross is entitled to statutory tolling during his

two rounds of state habeas petitions, we need not and do not address

whether Cross is entitled to equitable tolling at any point during the pendency of his petitions. 

CROSS v. SISTO 4271