FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

WILBERT NOBLE,  No. 08-17655

Petitioner-Appellant, D.C. No.

v.  5:06-cv-07114-

DARREL G. ADAMS, Warden, RMW

Respondent-Appellee. OPINION 

Appeal from the United States District Court

for the Northern District of California

Ronald M. Whyte, Senior District Judge, Presiding

Argued and Submitted

March 13, 2012—San Francisco, California

Filed April 19, 2012

Before: J. Clifford Wallace, Dorothy W. Nelson, and

Carlos T. Bea, Circuit Judges.

Opinion by Judge Wallace

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COUNSEL

J. Bradley O’Connell, Assistant Director, First District Appellate Project, San Francisco, California, for the petitioner-appellant.

Pamela K. Critchfield, Deputy Attorney General, San Francisco, California, for the respondent-appellee.

NOBLE v. ADAMS 4291
OPINION

WALLACE, Senior Circuit Judge:

Noble, a prisoner of the State of California, appeals from

the denial of his petition for a writ of habeas corpus. We

review de novo the denial of a petition for a writ of habeas

corpus on statute-of-limitations grounds. Delhomme v.

Ramirez, 340 F.3d 817, 819 (9th Cir. 2003). We have jurisdiction under 28 U.S.C. § 2253, and we vacate and remand for

further proceedings.

I.

Following a jury trial in California Superior Court, Noble

was found guilty of one count of aggravated sexual assault of

a child under 14, forcible oral copulation, three counts of lewd

act on a child under 14, and one count of false imprisonment.

The superior court imposed an aggregate prison sentence of

130 years to life. The California Court of Appeal upheld

Noble’s conviction and sentence and the California Supreme

Court denied his petition for review on direct appeal. The

conviction and sentence became final for purposes of the

Anti-Terrorism and Effective Death Penalty Act (AEDPA) on

July 20, 2004, when the time to petition for certiorari to the

United States Supreme Court expired. See 28 U.S.C.

§ 2244(d)(1)(A).

On June 23, 2005, Noble mailed a petition for a writ of

habeas corpus to the California Superior Court for Santa Clara

County. The superior court denied Noble’s petition on July

25, 2005, on the grounds that several of Noble’s claims were

procedurally barred because they could have been raised on

direct appeal and others failed to state a prima facie case for

relief.

On September 8, 2005, Noble mailed a second petition for

a writ of habeas corpus to the same superior court. Noble’s

4292 NOBLE v. ADAMS
second petition re-alleged the same substantive claims as the

first petition, but also added a claim that Noble’s prior appellate counsel had rendered ineffective assistance by failing to

raise those claims on direct appeal. The second petition also

added a claim for “cumulative prejudice.” On October 28,

2005, the superior court denied the second petition because

the claims were duplicative of Noble’s prior petition and

because Noble presented claims in a piecemeal fashion.

On December 8, 2005, Noble mailed a petition for a writ

of habeas corpus to the California Court of Appeal raising the

same claims as the prior petitions. The court of appeal summarily denied the petition on February 1, 2006.

On February 15, 2006, Noble mailed a petition for a writ

of habeas corpus raising the same claims as the prior petitions

to the California Supreme Court. The Supreme Court summarily denied the petition on October 18, 2006.

Noble mailed a petition for a writ of habeas corpus under

28 U.S.C. § 2254 to the United States District Court for the

Northern District of California on October 26, 2006. The district court dismissed the petition as untimely, and we granted

a certificate of appealability.

II.

[1] Under the AEDPA, “[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.”

28 U.S.C. § 2244(d)(1). Noble’s one year began running from

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

such review.” Section 2244(d)(1)(A). However, “[t]he 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

NOBLE v. ADAMS 4293
any period of limitation under this subsection.” Section

2244(d)(2).

[2] We apply the “mailbox rule” in determining whether

Noble’s petitions were timely. “Under the ‘mailbox rule,’ a

pro se prisoner’s filing of a state habeas petition is deemed

filed at the moment the prisoner delivers it to prison authorities for forwarding to the clerk of the court.” Stillman v.

LaMarque, 319 F.3d 1199, 1201 (9th Cir. 2003). Noble

mailed his first application for state collateral review twentyseven days before the expiration of the limitations period. He

mailed his petition to the district court eight days after the

denial of his petition by the California Supreme Court. Therefore, if the limitations period was tolled for the entire period

between the date Noble mailed his first state petition and the

date the California Supreme Court denied his last petition,

then his federal petition was timely. However, if the gaps

between his petitions in the state court are not tolled, then his

federal petition was untimely.

[3] The district court concluded that Noble was not entitled

to tolling under 28 U.S.C. § 2244(d)(2) of the gap between the

denial of his first petition in the California Superior Court and

the filing of a second petition in the same court. The district

court also held that the gap between the denial of his first petition and the filing of a petition in the California Court of

Appeal could not be tolled because Noble’s first petition was

no longer pending when he filed the petition in the court of

appeal. The district court erred in concluding, without further

analysis of California law, that Noble’s first petition was no

longer pending when he filed his petition in the court of

appeal. Therefore, we vacate and remand for a determination

of whether, under California law, Noble filed his petition in

the court of appeal within a reasonable time after the denial

of his first petition by the superior court.

III.

[4] A petition that has been denied by a trial court remains

pending until it is either resolved by a higher court or until the

4294 NOBLE v. ADAMS
time to appeal expires. See Carey v. Saffold, 536 U.S. 214,

219-20 (2002) (“[A]n application is pending as long as the

ordinary state collateral review process is ‘in continuance’

i.e., ‘until the completion of’ that process. In other words,

until the application has achieved final resolution through the

State’s post-conviction procedures, by definition it remains

‘pending.’ ” (quoting Webster’s Third New International Dictionary 1669 (1993))). Because of California’s unique system

for appellate review of habeas corpus petitions, which does

not provide a determinate time-frame for appealing the decision of a lower court, a petition that has been denied by a

lower court remains pending if the petitioner files a new petition in a higher court within a reasonable time of the petition’s denial. See id. at 222-23. Noble filed his petition in the

California Court of Appeal approximately four and a half

months after the denial of his first state petition in the superior

court. If this delay was reasonable under California law, then

his first petition remained pending during that period.

[5] The Warden argues that Noble abandoned his right to

seek review of his first petition by filing a second petition in

the superior court rather than proceeding directly to the California Court of Appeal. But none of the authorities he cites

support this proposition. On the contrary, such procedural

errors by a pro se plaintiff may well be excused under California law. See In re Gray, 102 Cal. Rptr. 3d 551, 559 (Cal. Ct.

App. 2009) (holding that pro se petitioner did not lack diligence where petitioner sought to effect his right to appellate

review by incorrect means). Furthermore, we have held: 

The period that an application for post-conviction

review is pending is not affected or ‘untolled’ merely

because a petitioner files additional or overlapping

petitions before it is complete. Rather, each time a

petitioner files a new habeas petition at the same or

a lower level, . . . the subsequent petition has no

effect on the already pending application, but triggers an entirely separate round of review. 

NOBLE v. ADAMS 4295
Delhomme v. Ramirez, 340 F.3d at 820. Even if Noble triggered a separate round of review by filing a second petition

in the superior court, that would not have ended his first round

of review.

Noble argues, in the alternative, that the district court erred

in concluding that Noble’s second petition in the superior

court initiated a separate round of review. But we need only

consider that holding if it turns out that Noble’s petition in the

court of appeal was not filed within a reasonable time vis-àvis his first petition. Because the district court did not make

any findings on that issue, we do not address whether Noble’s

second petition in the superior court was part of his first round

of review under King v. Roe, 340 F.3d 821, 823 (9th Cir.

2003).

IV.

[6] We remand to the district court to determine in the first

instance whether, under California law, Noble filed his petition in the court of appeal within a reasonable time after the

denial of his first petition in the superior court. We have

stated that an unexplained delay that is “substantially longer

than the ‘30 to 60 days’ that ‘most States’ allow for filing

petitions” is not reasonable under California law. Chaffer v.

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

California Court of Appeal has excused delays of several

months where the petitioner offered an adequate explanation

for the delay. See In re Burdan, 86 Cal. Rptr. 3d 549, 557-58

(Cal. Ct. App. 2008) (excusing delay of ten months for pro se

petitioner where attorney said he would handle appeal but

failed to do so); In re Crockett, 71 Cal. Rptr. 3d 632, 636-37

(Cal. Ct. App. 2008) (excusing delay of approximately five

months where attorney “had no prior experience with appellate writs and could not obtain the assistance of experienced

appellate counsel”). Thus, Noble’s delay of four and a half

months may be within the range of reasonableness if his

explanation for the delay is adequate under California law.

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In determining whether, under the circumstances of this

case, California law would excuse Noble’s delay, the district

court should consider all relevant factors. Noble contends that

his decision to file a second petition in the superior court was

an attempt to cure the deficiencies in his first petition and was

merely a good faith procedural error that can be excused

under Gray, 102 Cal. Rptr. 3d at 559. The district court’s reasonableness decision on remand may be informed by Gray

and by any other factors that bear upon Noble’s diligence.

[7] We wish we could be more helpful to the district court

by providing more guidance. However, this is a state law

question. Our court earlier requested advice on this issue from

the California Supreme Court but that request was denied. See

Chaffer, 592 F.3d at 1048 n.1. We, therefore, must leave it to

the district court in the first instance to determine whether the

four and a half month delay was reasonable in the context of

this case under California law.

VACATED and REMANDED.

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