FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ANDREW PASQUALE CHAFFER,  No. 07-16853

Petitioner-Appellant, D.C. No.

v. CV-06-00950-LKK

Eastern District K. PROSPER; BILL LOCKYER,

of California, Attorney General,  Sacramento Respondents-Appellees.

ORDER

CERTIFYING

QUESTIONS TO

THE CALIFORNIA

SUPREME COURT 

Filed September 2, 2008

Before: Diarmuid F. O’Scannlain and Barry G. Silverman,

Circuit Judges, and James K. Singleton,*

Senior District Judge.

ORDER

We certify to the California Supreme Court the questions

set forth in Part III of this order. 

All further proceedings in this case are stayed pending

receipt of the answer to the certified question. This case is

withdrawn from submission until further order of this court.

If the California Supreme Court accepts the certified question

for answer, the parties shall file a joint report six months after

*The Honorable James K. Singleton, United States District Judge for

the District of Alaska, sitting by designation. 

12425
date of acceptance and every six months thereafter advising

us of the status of the proceedings.

I

Pursuant to Rule 8.548 of the California Rules of Court, a

panel of the United States Court of Appeals for the Ninth Circuit, before which this appeal is pending, certifies to the California Supreme Court questions of law concerning the

timeliness of a California inmate’s petition for writ of habeas

corpus, in light of the decision of the Supreme Court of the

United States in Evans v. Chavis, 546 U.S. 189 (2006). The

decisions of the Courts of Appeal of the State of California

provide no controlling precedent regarding the certified questions, the answer to which may be determinative of this

appeal. We respectfully request that the California Supreme

Court answer the certified questions presented below. Our

phrasing of the issue is not meant to restrict the court’s consideration of the case. We agree to follow the answer provided by the California Supreme Court. If the Supreme Court

declines certification, we will resolve the issue according to

our perception of California law. 

II

The caption of the case is:

No. 07-16853

ANDREW PASQUALE CHAFFER,

Petitioner - Appellant,

v.

K. PROSPER; BILL LOCKYER,

Respondents - Appellees.

Counsel for the parties are as follows: 

12426 CHAFFER v. PROSPER
For Petitioner-Appellant: Timothy J. Foley, Assistant Federal Defender, 801 I Street, 3rd Floor, Sacramento, CA 95814.

For Respondents-Appellees: Edmund G. Brown, Jr., Attorney General of the State of California; Dane R. Gillette, Chief

Assistant Attorney General; Michael P. Farrell, Senior Assistant Attorney General; Brian G. Smiley, Supervising Deputy

Attorney General; David Andrew Eldridge, Deputy Attorney

General, 1300 I Street, Suite 125, P.O. Box 944255, Sacramento, CA 94244.

III

The questions of law to be answered are: 

1. When is a state habeas petition timely filed in California courts; does the term “substantial delay,” as described in

In re Stankewitz, 40 Cal. 3d 391, 396-97 n.1 (1985), mean any

delay that exceeds 60 days after the denial of a habeas petition

by another state court, as suggested by Chavis, 546 U.S. at

200-01? 

2. If either Chaffer’s state habeas petition before the California Court of Appeal or his state habeas petition before the

California Supreme Court was “substantially delayed,” was

the delay justified? 

IV

The statement of facts is as follows: 

A

On September 30, 2002, Chaffer was convicted in California state court of two counts of corporal injury to a spouse and

sentenced to eight years in state prison. The California Court

of Appeal affirmed the conviction on September 2, 2003. The

California Supreme Court denied Chaffer’s petition for

CHAFFER v. PROSPER 12427
review without explanation on November 25, 2003. Chaffer

did not file a petition for certiorari in the United States

Supreme Court. The parties concede that Chaffer’s conviction

became final on February 23, 2004, which was 90 days after

the California Supreme Court denied Chaffer’s petition for

review. See Bowden v. Roe, 188 F.3d 1157, 1159-60 (9th Cir.

1999). 

On February 17, 2005, 359 days after his conviction

became final, Chaffer filed a petition for habeas corpus relief

in California state trial court. The trial court denied the petition on June 15, 2005.1

B

On October 9, 2005, 115 days after the denial of his first

state habeas petition, Chaffer filed a second petition in the

California Court of Appeal. As Chaffer concedes, his second

petition was virtually identical to his first state habeas petition, but for the addition of “some minor modifications.”

Chaffer provides three explanations for the delay. 

First, Chaffer contends that the 115-day delay is justified

because, on July 28, 2005, an inmate law clerk who had

assisted him in preparing his postconviction petitions was

transferred to a new detention facility. Chaffer needed

approximately two business days to relocate the materials relevant to his case, which had been stored by the transferred

clerk in the prison law library. Chaffer thereafter relied on the

assistance of another inmate which, he represents, caused the

additional delay in filing his second state habeas petition. 

1Chaffer explains that the 359-day delay was caused by a conflict of

interest with his attorney, discovered shortly after his conviction became

final. We note, however, that the reasonableness of such delay is not at

issue in this case; the parties solely dispute the reasonableness of the

delays preceding the filing of Chaffer’s second and third state habeas petitions. 

12428 CHAFFER v. PROSPER
Second, Chaffer points to alleged deficiencies in the prison

law library as justifying the delay. He alleges that the prison

law library was missing: one volume of the Lawyer’s Edition

2d of the United States Supreme Court Reports from 2000;

two volumes of the California Reporter 2d from 2003 and

1996; one volume of the Federal Supplement 2d from 2004;

one volume of the Federal Reporter 3d from 2004; one volume of Shepard’s Federal Supplement from 1995; one volume

of Shepard’s Federal Reporter from 1995; and all volumes of

Shepard’s California Citations. Chaffer also alleges that the

prison library used a “cumbersome ordering system” and that

“inmates are still learning how to navigate.” However, Chaffer does not specifically assert how the alleged deficiencies in

the library actually caused the 115-day filing delay.2

Third, Chaffer argues that the delay was justified by his

reliance on our opinion in Saffold v. Carey, 312 F.3d 1031

(9th Cir. 2002). There, we held that a state habeas petition

was timely despite a 41⁄2 month filing delay, in light of the

California Supreme Court’s having denied the petition “on the

merits and for lack of diligence.” Id. at 1032-33, 1035-36.

Chaffer states that he believed that Saffold held that a 41⁄2

month filing delay is per se reasonable under California law.

The California Court of Appeal denied the petition without

explanation on October 27, 2005.

2We also note that Chaffer’s allegations largely are controverted in a

declaration provided by Sherry Phearson, the librarian at Chaffer’s prison.

Phearson represented that, during all times relevant in this appeal, the

prison library “has had either in its own stores or available to it within one

or two days of request a complete set of up-to-date primary legal

resources.” Phearson also stated that, following “a diligent search of the

library access logs,” “at no time has Mr. Chaffer accessed the [prison]

[l]ibrary in [her] tenure.” The district court did not render factfinding as

to the alleged deficiencies in the prison law library or as to Chaffer’s use

of the prison law library. However, for the reasons discussed infra in Section V.B.2, we believe that certification nevertheless is warranted. 

CHAFFER v. PROSPER 12429
C

On February 6, 2006, 101 days following the denial of his

second habeas petition by the California Court of Appeal,

Chaffer filed a third state habeas petition in the California

Supreme Court. Whereas Chaffer’s prior two state habeas

petitions were approximately 60 pages in length, his third

state habeas petition was 27 pages and thus substantially was

reworked. Chaffer explains the 101-day delay by noting that

he lacked both counsel and a formal legal education, by pointing to the alleged deficiencies in the prison law library discussed supra, and by arguing again that he relied on our

holding in Saffold, 312 F.3d 1031. 

The California Supreme Court denied the petition without

explanation on October 25, 2006.

D

On May 1, 2006, prior to the denial of his third state habeas

petition, Chaffer filed a petition for habeas corpus relief in

federal district court. On June 26, 2006, Prosper filed a

motion to dismiss on the ground that Chaffer’s habeas petition

was untimely under AEDPA’s one-year statute of limitations

due to the delay prior to the filing of his second and third state

habeas petitions. On July 26, 2006, Chaffer filed a memorandum in opposition to the motion to dismiss, arguing that the

delays were justified by alleged deficiencies in the prison law

library, as well as the disruption that was caused by the transfer of the prison law clerk who had been assisting him. 

On March 14, 2007, a federal magistrate judge entered a

Findings and Recommendations, which recommended that the

district court grant Prosper’s motion to dismiss. The Findings

and Recommendations did not address Chaffer’s claims concerning the prison library’s alleged deficiencies. The magistrate judge concluded that the transfer of the prison law clerk

12430 CHAFFER v. PROSPER
did not justify the filing delay underlying Chaffer’s state

habeas petition before the California Court of Appeal, noting,

This situation is not analogous to a lawyer refusing

to return transcripts and the like to a client. A client

has certain reasonable expectations of a licensed

attorney and, generally, reasonably relies on that

attorney client relationship in the course of the representation. While a fellow prisoner may have been

assisting petitioner, he was representing himself. He

therefore controlled his legal materials, and his poor

choice in relinquishing so much control over them

that they were temporarily lost by a fellow prisoner

is not a fact which weighs in his favor. 

On August 16, 2007, the district court adopted and affirmed

the Findings and Recommendations, without an opinion.

V

We respectfully submit that the questions presented in Section III need certification for the following reasons:

A

Under 28 U.S.C. § 2244(d)(1), “[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 one-year period runs 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.” Id.

§ 2244(d)(1)(A). However, § 2244(d)(2) provides an exception to such requirement for “[t]he 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.” 

“The time that an application for state postconviction

review is ‘pending’ includes the period between (1) a lower

CHAFFER v. PROSPER 12431
court’s adverse determination, and (2) the prisoner’s filing of

a notice of appeal, provided that the filing of the notice of

appeal is timely under state law.” Chavis, 546 U.S. at 191

(citing Saffold, 536 U.S. 214) (emphasis omitted). Thus, the

interval between the final adjudication of a state habeas petition and the timely filing of a notice of appeal is tolled in calculating whether a federal habeas petition is timely. See

Saffold, 536 U.S. at 219-21. 

“In most States a statute sets out the number of days for filing a timely notice of appeal,” but California “has a special

system governing appeals when prisoners seek relief on collateral review,” under which a petitioner may file either a “petition for rehearing” or a separate state habeas petition, the

latter of which must be filed within a “reasonable time.” Id.

(citing In re Harris, 5 Cal. 4th 813, 828, n. 7 (1993)); see In

re Crockett, 159 Cal. App. 4th 751, 757 (Cal. Ct. App. 2008)

(“A petitioner seeking relief on habeas corpus need only file

a petition without substantial delay, or if delayed, adequately

explain the delay.”). 

However, the Supreme Court has observed that “California’s collateral review process functions very much like that

of other States, but for the fact that its timeliness rule is indeterminate,” Carey, 536 U.S. at 222, such that “California’s

‘reasonable time’ standard [does] not lead to filing delays

substantially longer than those in States with determinate

timeliness rules,” Chavis, 546 U.S. at 201. The Supreme

Court therefore has held that, when tasked with determining

whether a habeas petition filed in California court was timely,

we must “simply . . . ask and [ ] decide whether the state prisoner made the relevant filing within a reasonable time,” while

bearing in mind that California’s “reasonableness” standard

does not vary significantly from determinate filing systems.

Chavis, 546 U.S. at 199-200. 

Although the Supreme Court did not explicitly hold as

much, the State of California argues that Chavis infers that

12432 CHAFFER v. PROSPER
under California law a filing delay beyond 60 days is “substantial,” and that a petitioner bears the burden of establishing

the reasonableness of such a delay. However, the Supreme

Court qualified its holding in Chavis by noting that “California, of course, remains free to tell us if, in this respect, we

were wrong,” and that “California courts themselves might

alleviate the problem by clarifying the scope of the words

‘reasonable time.’ ” Id. Since Chavis was decided, California

law has not clarified whether a filing delay greater than 60

days necessarily qualifies as “substantial.” Accordingly, while

we must faithfully apply the Supreme Court’s decision in

Evans, we seek certification in part so that the California

Supreme Court can assess whether the two filing delays in

this case—each more than 100 days in length—qualify as

“substantial delays” under California law.3

B

If the delays in this case were “substantial,” then we also

ask the California Supreme Court for guidance in determining

whether Chaffer sufficiently has justified them. Because

Chaffer filed habeas petitions in the California Court of

Appeal and in the California Supreme Court, the “reasonableness” standard controls whether such petitions were timely.

See Saffold, 536 U.S. at 221. If either petition was untimely,

then Chaffer’s federal habeas petition is time-barred under 28

U.S.C. § 2244(d)(1)(A), in light of the 359-day delay that preceded the filing of his first state habeas petition. As noted,

Chaffer proffers four justifications for the delays; we believe

that certification is warranted in addressing three such claims.

1

First, Chaffer argues that the delays should be excused

3We note that California has a separate set of procedures for capital

cases, which are only relevant to this case by analogy. See In re Clark, 5

Cal. 4th 750, 782-83 (1993). 

CHAFFER v. PROSPER 12433
because “California courts commonly forgive substantial

delays involving an incarcerated petitioner of limited education, proceeding without an attorney, who is attempting to

challenge a conviction or sentence.” Chaffer cites in support

to a string of California decisions relying in part on such factors in deeming a state habeas petition timely. See Ex parte

James, 38 Cal. 2d 302, 309 (1952) (“[B]ecause of his ignorance, petitioner did not realize that he had any grounds for

attacking the judgment until long after the time for appeal had

expired.”); see also In re Saunders, 2 Cal. 3d 1033, 1041

(1970) (holding that a delay was reasonable because of “petitioner’s allegations that he had only a ninth grade education

and was without experience or education in the law,” among

other reasons); In re Moss, 175 Cal. App. 3d 913, 922 (Cal.

Ct. App. 1985) (“[T]he delay was attributable to Moss’ inability to secure appellate counsel.”); In re Spears, 157 Cal. App.

3d 1203, 1208 (Cal. Ct. App. 1984) (holding that “petitioner

has adequately explained his delay as attributable to his lack

of capacity to represent himself . . . and the scarcity of channels through which legal assistance is available to indigent

prisoners”). 

However, such decisions do not shed light on whether a

petitioner may justify a substantial filing delay merely based

on his pro se status or lack of a formal legal education, or

whether a petitioner instead must articulate the specific reasons that such factors actually caused the delay. See, e.g., id.

Chaffer arguably provides such an explanation regarding the

delay preceding his second habeas petition, in light of the

transfer of the prison law clerk who had been assisting him in

preparing his postconviction materials. However, Chaffer provides no similar explanation for the delay preceding his third

state habeas petition. Accordingly, we ask the California

Supreme Court to clarify whether the mere fact that a petitioner filed his state habeas petitions pro se justifies a substantial delay.

12434 CHAFFER v. PROSPER
2

Similarly, Chaffer argues that various alleged deficiencies

in his prison law library justifies the delays in filing his state

habeas petitions. However, Chaffer again provides no explanation for how such deficiencies actually caused the delays.

Accordingly, we ask the California Supreme Court to clarify

whether the mere fact that a prison library is out of compliance with governing law may justify a substantial delay,

absent an adequate explanation of how such deficiencies actually caused the relevant delay.

3

As noted, Chaffer argues that the relevant delays were justified by his belief that, under Saffold, 312 F.3d 1031, a filing

delay of up to 41⁄2 months was per se reasonable. However,

such was a misreading of our holding in that case. In Saffold,

we explicitly noted that we “ha[d] not been asked to provide

any bright-line rule for determining what constitutes ‘unreasonable’ delay under California’s indeterminate timeliness

standard.” Id. at 1036 n.1. Moreover, the facts of Saffold are

materially distinguishable: there, we determined “whether the

California Supreme Court’s order denying [Saffold’s] habeas

corpus petition both ‘on the merits and for lack of diligence’

means that his petition before that court was untimely,”

whereas here the California Supreme Court did not state that

it denied Chaffer’s habeas petition “on the merits” or “for lack

of diligence.” See id. at 1032-33. Accordingly, we are satisfied that our opinion in Saffold could not be relied upon for

the broad proposition that a 41⁄2 month delay always is permitted under California law.4

4Chaffer’s reliance on Harris v. Carter, 515 F.3d 1051 (9th Cir. 2008),

is unavailing. There, we applied equitable tolling of the 28 U.S.C. § 2244

statute of limitations, where a petitioner relied in good faith on Ninth Circuit precedent that was later overturned by the Supreme Court in Pace v.

DiGuglielmo, 544 U.S. 408 (2005). See id. at 1052. This case is distinguishable, as here Chaffer allegedly relied on a misunderstanding of our

precedent, rather than on a correct reading of our caselaw that was later

overturned. 

CHAFFER v. PROSPER 12435
We recognize, of course, that California law nevertheless

may deem a substantial filing delay justified on the ground

that a pro se petitioner reasonably and in good faith relied on

a misreading of our precedent. Because there is no precedent

on point, we ask the California Supreme Court to clarify

whether a pro se petitioner’s misunderstanding of law may

justify a substantial filing delay.

C

The malleability of California’s indeterminate timeliness

rule certainly is a boon for state habeas petitioners, who otherwise would be required to adhere to unbending deadlines

regardless of their individual circumstances. However, in the

interest of ensuring the proper application of California law in

assessing the timeliness of federal habeas petitions under 28

U.S.C. § 2244(d)—a frequently recurring issue in this Court

—we certify the foregoing questions to the California

Supreme Court in the hope that their resolution may shed

greater light on when a state habeas petition is timely filed

and if not, when it is “substantially delayed,” and on the contours of a sufficient justification of such a delay. 

VI

The Clerk of Court is hereby directed to transmit forthwith

to the California Supreme Court, under official seal of the

Ninth Circuit, a copy of this order and request for certification

and all relevant briefs and excerpts of record pursuant to California Rule of Court 8.548. 

IT IS SO ORDERED.

12436 CHAFFER v. PROSPER



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