FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

VALERIE CAMPBELL, 

No. 07-16481 Petitioner-Appellant,

D.C. No.

v.  3:06-cv-02225-CRB

GLORIA HENRY,

OPINION Respondent-Appellee. 

Appeal from the United States District Court

for the Northern District of California

Charles R. Breyer, District Judge, Presiding

Argued and Submitted

May 11, 2010—San Francisco, California

Filed August 13, 2010

Before: Stephen Reinhardt, William A. Fletcher and

N. Randy Smith, Circuit Judges.

Opinion by Judge Reinhardt

11657
COUNSEL

Eric G. Babcock, Oakland, California, for the petitionerappellant.

Edmund G. Brown, Jr., Attorney General of California; Dana

R. Gillette, Chief Assistant Attorney General; Gerald A.

Engler, Senior Assistant Attorney General; Peggy S. Ruffra,

Supervising Deputy Attorney General; Christopher J. Wei,

Deputy Attorney General, San Francisco, California, for the

respondent-appellee.

OPINION

REINHARDT, Circuit Judge:

Valerie Campbell is a prisoner at Valley State Prison for

Women in Chowchilla, California. The District Court dismissed her federal petition for writ of habeas corpus for failure to file within the one year statute of limitations mandated

by 28 U.S.C. § 2244(d). She appeals and we reverse. 

Campbell contends, correctly, that for purposes of the

§ 2244(d) statute of limitations she was entitled to the benefit

11660 CAMPBELL v. HENRY
of the mailbox rule when determining the filing dates of her

state and federal habeas petitions, all of which were filed pro

se. The District Court, apparently inadvertently, failed to

accord her that benefit. 

The District Court, however, was correct with regard to a

different issue, which the State challenges on appeal. The

Alameda County Superior Court determined that all 23 claims

in Campbell’s second habeas petition were untimely under

state law. Campbell then filed the same petition with the California Court of Appeal, which determined that one of those 23

claims was timely, and in fact could not have been untimely

under state law, because it was a claim of a type “not subject

to the bar of untimeliness.” The State contends that Campbell’s second state habeas petition was not “properly filed”

with the Superior Court for purposes of § 2244(d) tolling

because of the Superior Court’s determination that all the

claims therein were untimely, notwithstanding that, as the

Court of Appeal explained, the Superior Court was incorrect

as to the timeliness of one of the claims. The State relies on

California’s unique system of higher court review of lower

court decisions in habeas cases, which requires a petitioner

seeking such review to file a new petition with a higher court

rather than an appeal. We agree with the District Court that

the determination of the higher court — in this case, the Court

of Appeal — is effectively a review of the lower court’s timeliness determination, and if the higher court determines that

the claim is timely, it is “[ ]timely under state law,” see Pace

v. DiGuglielmo, 544 U.S. 408, 414 (2005), for its entire pendency in state court. 

Additionally, in response to another contention raised by

the State, we reaffirm that any properly filed application for

state collateral review tolls the § 2244(d) statute of limitations

as to any claims relating to the pertinent judgment, whether

or not such claims are contained in the state application. See

Tillema v. Long, 253 F.3d 494, 499-500, 502 (9th Cir. 2001).

CAMPBELL v. HENRY 11661
I

In 2001, Valerie Campbell was convicted of one count of

first degree murder and two counts of premeditated murder in

Alameda County Superior Court and sentenced to twenty five

years to life. The Court of Appeal affirmed her conviction on

February 25, 2003, and on June 11, 2003, the California

Supreme Court denied her review of that decision.

In a letter dated June 1, 2003, Campbell wrote the Alameda

County Superior Court requesting relief from her prison sentence. On September 12, 2003, the Superior Court filed the

letter and issued an order construing it as a pro se habeas petition and denying the petition for failing to state a prima facie

case for relief. On September 18, 2003, Campbell mailed to

the Superior Court a document that she styled a habeas petition (as opposed to a letter), which the court filed and denied

on September 24, 2003.

On October 20, 2003, Campbell filed a pro se habeas petition in the California Court of Appeal. The record does not

contain the date of mailing, but in light of the other facts in

the record, its omission is harmless. On October 24, 2003, the

California Court of Appeal denied Campbell’s habeas petition

in a one sentence opinion.

On September 11, 2004, Campbell mailed the Alameda

County Superior Court a second pro se habeas petition. The

Superior Court filed that petition on September 21, 2004 and

denied it on October 26, 2004, finding that all of the claims

therein were untimely.

On December 29, 2004, Campbell mailed this second pro

se habeas petition to the California Court of Appeal. That

court filed it on January 3, 2005, and on January 7, 2005,

denied 22 of the 23 claims in Campbell’s second petition as

untimely. It held that the last claim was timely, although it

denied that claim on the merits. A petition to the California

11662 CAMPBELL v. HENRY
Supreme Court, dated February 4, 2005, and marked as filed

on February 28, 2005, was denied on February 8, 2006, without opinion.

Campbell next filed a habeas petition in the United States

District Court for the Northern District of California. This

petition, like her state habeas petitions, was filed pro se. It

was dated March 16, 2006 and post-marked March 17, 2006;

however, the District Court did not stamp it as filed until

March 28, 2006. On July 9, 2007, the District Court dismissed

Campbell’s habeas petition as untimely. Campbell timely

appealed to this court.

II

Campbell filed her federal habeas petition in 2006; accordingly, her claim is governed by AEDPA. We review de novo

a “district court’s dismissal of [a] federal habeas petition for

failure to comply with the one-year statute of limitations of

the Antiterrorism and Effective Death Penalty Act.” Chaffer

v. Prosper, 592 F.3d 1046, 1048 (9th Cir. 2010).

[1] 28 U.S.C. § 2244(d) 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, but tolls the

statute of limitations during the pendency of any properly

filed state court application for collateral review. See 28

U.S.C. § 2244(d)(1), (2). The District Court found that Campbell’s first habeas petition to the Superior Court and the California Court of Appeal tolled the one-year statute of

limitations, and that Campbell’s second habeas petition to the

Superior Court, the Court of Appeal, and the California

Supreme Court also tolled that statute. Nonetheless, the court

found that, taking the tolling into account, Campbell had until

only March 14, 2006 to file her petition, and that her petition,

which the court filed on March 28, 2006, was untimely. 

[2] The District Court failed, however, to give Campbell

the benefit of the mailbox rule with regard to either her state

CAMPBELL v. HENRY 11663
petitions or her federal petitions. Under the mailbox rule, a

prisoner’s pro se habeas petition is “deemed filed when he

hands it over to prison authorities for mailing to the relevant

court.” Huizar v. Carey, 273 F.3d 1220, 1222 (9th Cir. 2001);

Houston v. Lack, 487 U.S. 266, 276 (1988). The mailbox rule

applies to federal and state petitions alike. See Stillman v.

LaMarque, 319 F.3d 1199, 1201 (9th. Cir. 2003); Smith v.

Ratelle, 323 F.3d 813, 816 n.2 (9th Cir. 2003).

[3] Campbell filed all of her habeas petitions and appeals

pro se, except for this appeal. Accordingly, she was entitled

to the benefit of the mailbox rule when the District Court was

calculating her filing dates for purposes of AEDPA tolling.

There are two instances in which the District Court improperly applied the dates that Campbell’s petitions were filed by

courts rather than the dates on which Campbell mailed the

petitions; applying the proper dates, it is clear that Campbell

filed her federal habeas petition within § 2244(d)’s one year

statute of limitations. The first error affected the court’s determination of the date by which the federal habeas petition had

to be filed, and the second the determination of the date on

which it was filed.

[4] First, the District Court calculated the tolling of Campbell’s second habeas petition from the date of its filing in Alameda Superior Court, September 21, 2004, rather than from

the date of its mailing, September 11, 2004. Because it failed

to give Campbell the benefit of the mailbox rule, the District

Court calculated that her deadline under § 2244(d) for filing

a federal habeas petition was March 14, 2006. When ten days

is added to this date to account for the ten days that Campbell

lost when the District Court made this initial error, the proper

statutory deadline for filing her federal habeas petition

becomes March 24, 2006.1

1Campbell’s first state habeas petition, filed before the end of her direct

review process, was rejected by the California Court of Appeal on October

24, 2003. The § 2244(d) statute of limitations began running the next day,

11664 CAMPBELL v. HENRY
Second, the District Court treated Campbell’s federal

habeas petition as having been filed on March 28, 2006, the

date on which it was actually filed by the court, instead of

March 17, 2006, the date that the petition was postmarked,

and therefore constructively filed.2 Under the mailbox rule,

the petition was filed seven days before the March 24, 2006

deadline, instead of four days afterwards.

[5] In sum, under § 2244(d), Campbell had until March 24,

2006 to petition the federal courts for writ of habeas corpus,

and constructively filed her petition by mailing it on March

17, 2006, a week before her deadline. Thus it was timely.

III

The State conceded at oral argument that in light of the

mailbox rule, Campbell’s federal petition was timely for purposes of § 2244(d) if her state habeas petitions were properly

filed. It makes two contentions, however, concerning Campbell’s second state habeas petition.3

 Each requires discussion;

both, however, are without merit.

First, the State contends that the habeas petition that Campbell filed in Superior Court in September 2004 should not toll

October 25, 2003. She had 365 days from that date to file her federal

habeas petition. Her second state habeas petition, filed in Superior Court

on September 11, 2004 stopped the clock at 321 days, leaving her 44 days

to file. That petition was finally rejected by the California Supreme Court

on February 8, 2006, at which point the clock restarted, giving her until

March 24, 2006 to mail her federal petition. 

2Campbell signed a proof of service dated March 16, 2006, averring that

she had mailed the petition that day, but the petition was not postmarked

until the next day, March 17, 2006. On the facts of this case, we need not

determine whether her petition is more properly dated from the proof of

service or from the postmark. 

3All references hereinafter to Campbell’s state habeas petitions are to

the second set. 

CAMPBELL v. HENRY 11665
the statute of limitations, because that court determined that

all of the claims therein were untimely. The “time during

which a properly filed application for State post-conviction 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.” 28 U.S.C. § 2244(d)(2).

Tolling, however, is not appropriate for a petition that is

untimely under state law, because such a petition is considered “neither ‘properly filed’ nor ‘pending.’ ” Thorson v.

Palmer, 479 F.3d 643, 645 (9th Cir. 2007); see also Pace, 544

U.S. at 413-14. According to the State, the Superior Court’s

finding that all of the claims in Campbell’s petition were

untimely ends the matter: all the claims in the petition were

untimely, and therefore the petition was not properly filed and

did not toll the statute of limitations. Disagreeing, the District

Court included for purposes of tolling the 109 days that

elapsed between the time the petition was filed with the Superior Court and the time it was filed with the Court of Appeal

(September 11, 2004 – December 29, 2004). Were the State

correct on this point, Campbell’s federal petition would have

fallen outside the § 2244(d) statute of limitations. 

The matter is not as easily concluded as the state suggests.

The California Court of Appeal held that one of the twenty

three claims in Campbell’s petition was not of the type that

is subject to the bar of untimeliness. The State contends that

the Court of Appeal’s holding is immaterial with regard to

whether that claim was timely filed in Superior Court. The

State relies on California’s atypical system of habeas review,

within which there is no formally denominated appeal of a

lower court’s decision. See Carey v. Saffold, 536 U.S. 214,

221 (2002). Instead, each of the California courts has original

jurisdiction over habeas petitions, and a petitioner, like Campbell, faced with an unfavorable result in Superior Court must

file a new “original” petition with the Court of Appeal. Id. at

221-22; Evans v. Chavis, 546 U.S. 189, 192-93 (2006).

Because in formal terms the Court of Appeal had before it a

new original petition and not an appeal of the Superior

11666 CAMPBELL v. HENRY
Court’s denial of Campbell’s petition in that court, the State

contends that the Court of Appeal did not review the Superior

Court’s decision, but rather came to its own, separate decision

about the same issue; accordingly, the State asserts that the

Court of Appeal’s determination that one claim was timely

under state law does not render that claim timely for the

period that it was pending before the Superior Court or the

time before it was filed with the Court of Appeal. 

[6] The State’s contention is erroneous. The United States

Supreme Court has determined that California’s “special system governing appeals” of habeas petitions is “sufficiently

analogous to appellate review systems in other States” that the

time between the unfavorable decision on the “original” petition to the lower court and the filing of a new “original” petition with identical content in the Court of Appeal tolls the

AEDPA statute of limitations, just as in another state the statute would be tolled during the denial of a habeas petition by

a lower court and the filing of an appeal of that denial in a

higher court. See Chavis, 546 U.S. at 192-93; Saffold, 536

U.S. at 222-23. This is because “a [California] prisoner who

files th[e] same petition in a higher, reviewing court will find

that he can obtain the basic appellate review that he seeks,

even though it is dubbed an ‘original’ petition.” See Saffold,

536 U.S. at 221-22. We have, similarly, treated California

Court of Appeal and Supreme Court decisions with regard to

a habeas petition as reviewing the decision of the lower court

as to that petition. See, e.g., Bonner v. Carey, 425 F.3d 1145,

1148 n.13 (9th. Cir. 2005). There is no question that if the

Superior Court had denied a petitioner relief on a substantive

ground and then the Court of Appeal determined that the petitioner was in fact entitled to relief on that ground, the Court

of Appeal’s decision would prevail. We see no reason why

the timeliness of the petition should be treated differently —

why it should be viewed as a matter unreviewable by higher

courts within the California system. A lower state court is no

less likely — or more likely — to err with regard to the timeliness of a claim than with regard to its substance. Moreover,

CAMPBELL v. HENRY 11667
the relevant question under § 2244(d) is whether the petition

was “untimely under state law,” Pace, 544 U.S. at 413-14, not

whether the particular state court in front of which the petition

was pending determined it to be timely. On questions of state

law, the Court of Appeal’s determination prevails over that of

the Superior Court. 

[7] Here, the Court of Appeal determined that one claim in

Campbell’s petition was timely — that it was a claim “not

subject to the bar of untimeliness” — under state law. See In

re Campbell, No. A108779, slip op. at 1 (Cal. Ct. App., 1st

App. Div., Jan. 7, 2005). The earlier incorrect determination

by the Superior Court that the claim was untimely is thus of

no force or effect. Under California’s unique system of collateral review, as in any ordinary system of appellate review, if

the highest court to render a decision determines that the

claim is timely, then that claim was timely when it was before

the lower court. The one timely claim in Campbell’s habeas

petition was thus timely when it was mailed to the Superior

Court. 

[8] Second, the State contends that even if one claim in

Campbell’s petition was timely when the petition was mailed

to the Superior Court, the statute of limitations was tolled

solely with regard to that claim. According to the State, then,

that is the only claim that Campbell may pursue in her federal

habeas petition. Whether AEDPA’s one year statute of limitations is tolled as to a petitioner’s entire petition or only as to

those individual claims deemed timely by the state court is a

matter settled by this court’s decisions. In Tillema, we held

that a “Motion to Vacate Illegal Sentence” made in state court

tolled the AEDPA statute of limitations for purpose of a federal habeas petition that challenged petitioner’s conviction

and sentence, despite the fact that the motion included no

claims that the petitioner raised in his subsequent federal

habeas petition. See Tillema, 253 F.3d at 499. We explained

that § 2244(d)(2) “specifies that the period of limitation is

tolled while ‘a properly filed application for State post11668 CAMPBELL v. HENRY
conviction or other collateral review with respect to the pertinent judgment or claim is pending,’ ” and that to give meaning to Congress’s use of the word “judgment,” any application

for relief from a conviction or sentence that is properly filed

in state court will toll the statute, whether or not it includes

any claim present in the federal petition.4Id. at 499-500

(emphasis in original) (quoting 28 U.S.C. § 2244(d)(2)); see

also id. at 502; Sweger v. Chesney, 294 F.3d 506, 516-17 (3d

Cir. 2002); Carter v. Litscher, 275 F.3d 663, 665 (7th Cir.

2001); but see Austin v. Mitchell, 200 F.3d 391, 395 (6th Cir.

1999). Given that a state court application need not contain

the claims in the federal petition in order for that application

to toll the statute of limitations as to those claims, it is obvious that the statute is not tolled only as to the individual

claims within that state court application. Rather, the statute

is tolled as to all claims by any timely filed application in

state court challenging the conviction or otherwise seeking

post-conviction relief. Accordingly, the one timely claim in

Campbell’s state habeas petition was sufficient to toll the

AEDPA statute of limitations with regard to any and all

claims in her federal petition.5

IV

For the reasons stated above, we reverse the dismissal of

Campbell’s petition for habeas corpus and remand to the District Court to consider it on its merits.

REVERSED and REMANDED.

4As we explained in Tillema, this interpretation does not render the

word “claim” surplusage. Valid habeas claims do not always challenge a

judgment: “[f]or example, a claim that death row inmate is incompetent

to be executed does not challenge the validity of the judgment.” See Tillema, 253 F.3d at 500 n. 7. 

5Because we conclude that the petition was timely, we need not reach

petitioner’s equitable tolling argument. 

CAMPBELL v. HENRY 11669