FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIAN DENNIS SHANNON, 

No. 03-16833 Petitioner-Appellant,

D.C. No.

v.  CV-01-03275-MJJ

ANTHONY NEWLAND, Warden, OPINION Respondent-Appellee. 

Appeal from the United States District Court

for the Northern District of California

Martin J. Jenkins, District Judge, Presiding

Argued and Submitted

April 11, 2005—San Francisco, California

Filed June 8, 2005

Before: Robert R. Beezer, Diarmuid F. O’Scannlain, and

Andrew J. Kleinfeld, Circuit Judges.

Opinion by Judge O’Scannlain

6629
COUNSEL

Donald M. Horgan, Riordan & Horgan, San Francisco, California, argued the cause and filed briefs for the petitioner;

Dennis P. Riordan was on the briefs. 

Juliet B. Haley, Attorney General’s Office, San Francisco,

California, argued the cause and filed a brief for the respondent; Bill Lockyer, Robert R. Anderson, Gerald A. Engler,

and Peggy S. Ruffra were on the brief.

OPINION

O’SCANNLAIN, Circuit Judge: 

We must decide whether a California prisoner’s petition for

writ of habeas corpus is timely when it is filed long after his

conviction but shortly after a decision by the California

Supreme Court clarifying the state’s criminal law in a way

potentially favorable to his federal constitutional claim.

I

In October 1993, Brian Shannon and his girlfriend, Kimberly Stack, began to argue heatedly in the living room of

Shannon’s home. Stack was killed by a shot from a handgun

that Shannon kept on the premises. Evidence suggested that

the couple had been struggling physically at the time of the

shooting or shortly before. Shannon was charged with murder

and convicted by a jury. The court sentenced him to fifteen

years to life on that count, with an additional enhancement of

four years for the use of a gun and sixteen months on a weapons possession charge to which Shannon pled nolo contendere. 

Shannon appealed his conviction, arguing (among other

6632 SHANNON v. NEWLAND
things) that the trial court had incorrectly instructed the jury.

At Shannon’s trial, the jury was instructed on the elements of

second-degree murder, which consists, in California, of “the

unlawful killing of a human being with malice aforethought.”

It was instructed that “malice” exists either when “there is

manifested an intention unlawfully to kill a human being,” or

when the defendant intentionally performs an act which he

knows is dangerous to human life.1 It was instructed that murder is reduced to manslaughter if the defendant acted “upon

the ground of sudden quarrel or in the heat of passion” and

that “[t]o establish that a killing is murder and not manslaughter, the burden is on the People to prove beyond a reasonable

doubt each of the elements of murder and that the act which

caused the death was not done in the heat of passion or upon

a sudden quarrel.” 

The parties do not dispute that all of the above instructions

were accurate. Shannon’s objection, rather, is to the court’s

instructions defining the lesser offense of voluntary manslaughter. The court instructed the jury that “[e]very person

who unlawfully kills another human being without malice

aforethought but with an intent to kill, is guilty of voluntary

manslaughter,” and that voluntary manslaughter requires the

prosecution to prove that “[t]he killing was done with the

intent to kill.” Shannon argued on appeal that the trial court

erred in instructing the jury that intent to kill is required for

a voluntary-manslaughter conviction. Instead, Shannon

argued, voluntary manslaughter—like murder—can also be

committed by acting with reckless disregard for human life.

The error was important, Shannon argued, for the following

reasons. Murder requires either intent to kill or reckless disregard for life. If the killing is of the intent-to-kill variety, then

1The prosecution alleged that Shannon acted with malice aforethought

because he intended to kill Stack or, in the alternative, behaved with wanton disregard for human life by brandishing a gun he knew was dangerous.

The defense argued that the shooting was an accident. 

SHANNON v. NEWLAND 6633
the existence of “heat of passion” clearly reduces the charge

to voluntary manslaughter. What happens, however, when the

killing is of the reckless-disregard variety, but the defendant

acted in the heat of passion? The crime should not be murder,

because heat of passion negates malice; but it cannot be voluntary manslaughter under the trial court’s instructions,

because that crime requires actual intent to kill. Shannon thus

argued that voluntary manslaughter must include recklessdisregard homicides as well as intentional ones and that the

erroneous instruction could have led the jury to convict him

of murder even had the prosecution failed to meet its burden

to disprove heat of passion. 

The California Court of Appeal rejected Shannon’s claim

in June 1996, opining that his “argument does make sense”

but holding that it was bound by prior decisions of the California Supreme Court that included intent to kill as an element

of voluntary manslaughter. See People v. Shannon, 46 Cal.

App. 4th 1365, 1370 (Ct. App. 1996). The California Supreme

Court denied review on October 17, 1996. 

Because Shannon did not petition the U.S. Supreme Court

for certiorari, his conviction became final, for purposes of the

statute of limitations for a habeas petition under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), 28 U.S.C.

§ 2244(d)(1), when the period for filing such a petition

elapsed on January 17, 1997. See Bowen v. Roe, 188 F.3d

1157, 1159-60 (9th Cir. 1999). He sought no federal habeas

relief at that time, and the standard limitations period of one

year from the date of final judgment, 28 U.S.C.

§ 2244(d)(1)(A), therefore expired on January 17, 1998. 

In June 2000, the California Supreme Court decided People

v. Lasko, 999 P.2d 666 (Cal. 2000), holding that the standard

voluntary manslaughter instruction was indeed incorrect

under California law because actual intent to kill is not an element of the crime. Id. at 668. In August 2000, Shannon petitioned the California Court of Appeal for a writ of habeas

6634 SHANNON v. NEWLAND
corpus based on Lasko. The Court of Appeal denied his petition without opinion and the California Supreme Court denied

review in January 2001. 

On August 27, 2001, Shannon filed a habeas petition in district court for the Northern District of California, arguing that

the erroneous jury instruction violated his federal right to due

process. The district court denied the petition as untimely and,

in the alternative, on the merits. The district court denied

Shannon’s request for a Certificate of Appealability, but in

December 2003, we granted a certificate and this appeal followed.2

II

[1] A habeas petition by a person in custody pursuant to the

judgment of a state court is subject to a one-year statute of

limitations. See 28 U.S.C. § 2244(d)(1). The date on which

the one-year period begins is the latest of four possible dates:

(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; 

(B) the date on which the impediment to filing an

application created by State action in violation of the

Constitution or laws of the United States is removed,

if the applicant was prevented from filing by such

State action; 

(C) the date on which the constitutional right

asserted was initially recognized by the Supreme

Court, if the right has been newly recognized by the

Supreme Court and made retroactively applicable to

cases on collateral review; or 

2We initially granted the certificate only as to the question of untimeliness, but subsequently expanded it to include the question whether the voluntary manslaughter instruction violated Shannon’s constitutional rights.

SHANNON v. NEWLAND 6635
(D) the date on which the factual predicate of the

claim or claims presented could have been discovered through the exercise of due diligence.

Id. Since direct review of Shannon’s conviction ended in 1996

and he did not file this habeas petition until August 2001, his

petition clearly is not timely under subsection (A). He argues,

however, that the California Supreme Court’s decision in

Lasko constituted either, under subsection (B), the removal of

an “impediment to filing an application created by State

action,” or, under subsection (D), the factual predicate of his

claim. Alternatively, Shannon argues, the period between his

conviction and the California Supreme Court’s decision in

Lasko should be equitably tolled. We consider these arguments in turn.3

A

Shannon first argues that the California Supreme Court’s

decision in Lasko, by confirming his contention that his jury

instructions had been erroneous, removed a state-created

impediment to the filing of his habeas petition and thus triggered a new one-year statute of limitations under 28 U.S.C.

§ 2244(d)(1)(B). He contends that the state appellate court’s

rejection of his appeal in June 1996 and the California

Supreme Court’s refusal to review that decision in October

1996 were state-created impediments to his ability to seek

habeas relief. Before the California Supreme Court decided

Lasko in 2000, federal courts would have been bound by the

state appellate court’s holding that the challenged jury instruction accurately stated California law. See West v. Am. Tel. &

Tel. Co., 311 U.S. 223, 237-38 (1940) (holding that federal

courts must defer to an intermediate state court’s interpreta3We review de novo the dismissal of a habeas petition on grounds of

untimeliness. See Delhomme v. Ramirez, 340 F.3d 817, 819 (9th Cir.

2003). Legal determinations regarding equitable tolling are also reviewed

de novo. See Malcolm v. Payne, 281 F.3d 951, 956 (9th Cir. 2002). 

6636 SHANNON v. NEWLAND
tion of state law, made in the very case under consideration,

when the state supreme court has denied review). Thus, Shannon argues, he was “imped[ed]” from filing his habeas claim

until the California Supreme Court finally corrected the lower

California courts’ error and clarified the elements of voluntary

manslaughter in Lasko. 

[2] We are not persuaded, however, that the state appellate

court’s decision was an “impediment” to Shannon’s filing a

habeas petition. He was free to file such a petition at any time.

Shannon’s real objection is that the state court’s decision

determined state law in a way that provided no legal basis for

a federal habeas petition: since the state court held that the

challenged instruction accurately defined voluntary manslaughter under California law, Shannon could not successfully argue in federal court that the instruction was so

mistaken as to violate due process. But Shannon provides no

support for the proposition that a state’s determination of its

own substantive law in a way that leaves a convict with no

meritorious federal claim can constitute an “impediment”

under § 2244(d)(1)(B), and so far as we can tell, none exists.

The limited case law applying § 2244(d)(1)(B) has dealt

almost entirely with the conduct of state prison officials who

interfere with inmates’ ability to prepare and to file habeas

petitions by denying access to legal materials. See, e.g.,

Whalem/Hunt v. Early, 233 F.3d 1146 (9th Cir. 2000) (en

banc); Egerton v. Cockrell, 334 F.3d 433 (5th Cir. 2003). A

plurality of the Supreme Court has also suggested that the

provision would apply if a “state court . . . refuse[d] to rule

on a constitutional claim that ha[d] been properly presented to

it.” Lackawanna County Dist. Att’y v. Coss, 532 U.S. 394,

405 (2001) (plurality op. of O’Connor, J.). These cases comport with the plain meaning of the provision, which applies

when a petitioner has been impeded from filing a habeas petition. 

SHANNON v. NEWLAND 6637
It is not surprising that § 2244(d)(1)(B) has not been interpreted as Shannon suggests, because the implications of his

contention would be serious. Whenever a state court clarified

its own substantive or procedural law, any prisoner convicted

under the understanding of the state’s legal standard or procedure previously prevailing in state courts—no matter how

long ago he was convicted—would be free to file a federal

habeas petition. The text of § 2244(d)(1)(B) cannot bear that

construction, and we decline to adopt it.4

B

[3] Shannon also argues that the California Supreme

Court’s decision in Lasko triggered a new one-year statute of

limitations under 28 U.S.C. § 2244(d)(1)(D) by supplying the

“factual predicate” for his federal constitutional claim. This

argument is equally difficult to square with the statute’s language. Section 2244(d)(1)(D) refers to a “factual” predicate;

the California Supreme Court’s decision in Lasko, however,

clarified the law, not the facts. If a change in (or clarification

of) state law, by a state court, in a case in which Shannon was

not a party, could qualify as a “factual predicate,” then the

term “factual” would be meaningless. 

At our instruction, the parties discussed at oral argument

the implications of the Supreme Court’s recent decision in

Johnson v. United States, 125 S. Ct. 1571 (Apr. 4, 2005), for

Shannon’s claim of timeliness under § 2244(d)(1)(D). Johnson actually dealt with 28 U.S.C. § 2255, ¶6(4), the counterpart to § 2244(d)(1)(D) that applies to habeas-like motions by

federal prisoners attacking their sentences. The two provisions

are almost identical, though,5 and the Supreme Court has

4Section 2244(d)(1)(B) also requires that the “impediment” be imposed

“in violation of the Constitution or laws of the United States.” Shannon

does not explain how the pre-Lasko opinions of the California courts,

interpreting the elements of voluntary manslaughter under California law,

could violate the Constitution or federal laws. 

5Section 2255, ¶6(4), provides for the one-year limitations period to

begin on “the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.”

6638 SHANNON v. NEWLAND
interpreted the statute-of-limitations provisions of § 2244 and

§ 2255 in concert with one another. See, e.g., Lackawanna

County, 532 U.S. at 402 (plurality op. of O’Connor, J.). 

In Johnson, a federal prisoner’s sentence had been

enhanced because of his prior state convictions. When one of

the state convictions was subsequently vacated by a state

court, Johnson sought to challenge his federal sentence under

§ 2255. Since more than a year had elapsed since his federal

conviction became final, Johnson relied on § 2255, ¶6(4). The

Eleventh Circuit held that a state legal decision did not qualify

as a “fact” under that provision. See Johnson v. United States,

340 F.3d 1219, 1223 (11th Cir. 2003). The Supreme Court,

however, rejected that analysis, holding that a state-court

order vacating a petitioner’s state conviction does qualify as

a “fact” under § 2255, ¶6(4)—and thus, doubtless, would also

qualify as a “factual predicate” under § 2244(d)(1)(D). 

[4] Johnson establishes that a state-court decision can, in

some circumstances, qualify as a fact. There is, however, a

crucial difference between Johnson and this case. In Johnson,

the state-court decision in question was a decision in the petitioner’s own case. It did not merely establish an abstract proposition of law; rather, it directly eliminated Johnson’s legal

status as a convict. That status was a fact used to enhance his

sentence, just as the use of a gun or the quantity of narcotics

sold are facts that can enhance a defendant’s sentence. In this

case, by contrast, the California Supreme Court’s decision in

Lasko was unrelated to Shannon’s case and had no direct

effect on his legal status. 

The opinions in Johnson support this distinction. The

majority noted that

[w]e commonly speak of the “fact of a prior conviction,” and an order vacating a predicate conviction is

spoken of as a fact just as sensibly as the order enterSHANNON v. NEWLAND 6639
ing it. In either case, a claim of such a fact is subject

to proof or disproof like any other factual issue. 

Johnson, 125 S. Ct. at 1579-80 (citation omitted). By contrast,

the California Supreme Court’s clarification in Lasko of the

elements of voluntary manslaughter under California law is

not subject to “proof or disproof like any other factual issue.”

We would never, for example, ask a jury to decide whether

a judicial decision had indeed changed a state’s law in the relevant way, nor would the parties introduce evidence on the

question. 

The dissenting Justices disagreed with the majority’s resolution of the case, but for all purposes relevant to Shannon’s

case they agreed with the majority. Joined by each of the

other three dissenters, Justice Kennedy wrote:

The Court is quite correct, in my view, to hold that

the state-court order of vacatur itself is the critical

fact which begins [AEDPA’s] 1-year limitations

period. It is an accepted use of the law’s vocabulary

to say that the entry or the setting aside of a judgment is a fact. An order vacating a judgment is a definite and significant fact of litigation history. So the

Court is on firm ground to say a state judgment of

vacatur begins the 1-year limitations period. 

Id. at 1583 (Kennedy, J., dissenting) (citations omitted). The

California Supreme Court’s decision in Lasko is not, by contrast, a “significant fact of [Shannon’s] litigation history.” 

[5] Thus, while the Court’s decision in Johnson does establish that a state-court judgment can sometimes constitute a

fact triggering a new limitations period under AEDPA, the

language of both the majority and the dissent suggests that a

state-court decision establishing an abstract proposition of law

arguably helpful to the petitioner’s claim does not constitute

the “factual predicate” for that claim. Moreover, like Shan6640 SHANNON v. NEWLAND
non’s claim under § 2244(d)(1)(B), the construction of

§ 2244(d)(1)(D) that he urges would create a large loophole

in AEDPA’s scheme to promote finality. Whenever a state

court announced a new interpretation or clarification of state

law, that announcement would constitute the “factual predicate” for a federal habeas claim seeking to enforce the new

ruling retroactively. But nothing in AEDPA suggests that it

was meant to take away state courts’ ability to handle as they

see fit the always-thorny problem of the retroactivity of

changes in substantive law. 

C

[6] Finally, Shannon argues that the time between his conviction and the California Supreme Court’s decision in Lasko

should be equitably tolled.6 Equitable tolling is available only

when “extraordinary circumstances beyond a prisoner’s control make it impossible to file the petition on time.” Stillman

v. Lamarque, 319 F.3d 1199, 1202 (9th Cir. 2003). “Extraordinary circumstances exist when . . . wrongful conduct prevents a prisoner from filing.” Id. (internal quotation marks

omitted). Equitable tolling has been applied, for example,

where the prison library was inadequate, Whalem/Hunt v.

Early, 233 F.3d 1146, 1148 (9th Cir. 2000) (en banc); where

the prisoner was denied access to his files, Lott v. Mueller,

304 F.3d 918, 925 (9th Cir. 2002); and where an attorney’s

egregious misconduct prevented timely filing, Spitsyn v.

Moore, 345 F.3d 796, 801 (9th Cir. 2003). 

6

In his opening brief, Shannon argues for tolling the period from the

time of his conviction until the California Supreme Court denied the state

habeas petition he filed based on Lasko. The reply brief, however, refers

to the allegedly tolled period as lasting only until the California Supreme

Court’s decision in Lasko itself. The tolling of either period would suffice

to render his claim timely. If Shannon’s claim had merit, the second formulation would be the accurate one (because it is Lasko that he claims

ended the “prevent[ion]” of his filing a federal habeas petition). 

SHANNON v. NEWLAND 6641
[7] Each of the cases in which equitable tolling has been

applied have involved wrongful conduct, either by state officials or, occasionally, by the petitioner’s counsel. See Stillman, 319 F.3d at 1202 (9th Cir. 2003) (“Extraordinary

circumstances exist when . . . wrongful conduct prevents a

prisoner from filing.” (internal quotation marks omitted)).

Moreover, in each case, the misconduct has actually prevented the prisoner from preparing or filing a timely petition.

Shannon’s case meets neither of those criteria. He does not

argue that the California courts acted “wrongful[ly]” as a matter of federal law by defining voluntary manslaughter as

requiring intent prior to Lasko; and nothing prevented him

from preparing and filing a habeas petition at any time. His

argument, rather, is that the state court prevented him from

prevailing on a federal habeas claim, because, before Lasko,

the federal courts would have had to accept the California

courts’ understanding of their own law. 

[8] Shannon’s argument thus calls for an unprecedented

extension of the principle of equitable tolling. We have stated,

however, that “[e]quitable tolling is justified in few cases,”

and that “the threshold necessary to trigger equitable tolling

[under AEDPA] is very high, lest the exceptions swallow the

rule.” Spitsyn, 345 F.3d at 799 (alteration in original). Moreover, just like Shannon’s previous arguments, this argument

would open the door for any state prisoner to file a habeas

petition anytime a state court issues a clarification of state

law. Such an interpretation cannot be squared with the goals

of finality that are central to AEDPA. Shannon is not entitled

to equitable tolling.

III

Because Shannon’s petition for writ of habeas corpus was

untimely, the district court was correct to dismiss it. We need

not reach—and take no position on—the merits of Shannon’s

constitutional claim. The judgment of the district court dismissing the petition as untimely is 

AFFIRMED.

6642 SHANNON v. NEWLAND