FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ENRIQUE TRIGUEROS,  No. 08-56484

Petitioner-Appellant, D.C. No.

v.  2:07-cv-04335-

DERRAL G. ADAMS,

ABC-FFM

Respondent-Appellee. OPINION 

Appeal from the United States District Court

for the Central District of California

Audrey B. Collins, Chief District Judge, Presiding

Argued and Submitted

April 11, 2011—Pasadena, California

Filed September 14, 2011

Before: Dorothy W. Nelson, Jay S. Bybee, and

Milan D. Smith, Jr., Circuit Judges.

Opinion by Judge Milan D. Smith, Jr.

17543
COUNSEL

Lauren E. Eskenazi, Los Angeles, California, for petitioner

Enrique Trigueros.

Richard S. Moskowitz, Deputy Attorney General, Los Angeles, California, for respondent Derral G. Adams, Warden.

OPINION

M. SMITH, Circuit Judge:

Petitioner-Appellant Enrique Trigueros appeals the district

court’s dismissal of his habeas petition as untimely, and not

subject to statutory tolling. Trigueros’s petition challenges his

jury conviction in California state court for murder and

attempted murder, for which he was sentenced to multiple

consecutive terms of twenty-five years to life, and life. He

filed his habeas petition in the California Superior Court in

October 2005, approximately two-and-a-half years after his

claims of ineffective assistance of counsel at trial were known

to him and approximately eleven months after his conviction

became final. The Superior Court determined that his petition

was untimely, and the Court of Appeal summarily denied his

petition on review. On review, the California Supreme Court

requested informal briefing and subsequently denied

Trigueros’s petition. The federal district court, concluding

that the last reasoned decision was that of the Superior Court,

ruled that Trigueros’s federal petition, filed in July 2007, was

not statutorily tolled, and therefore was untimely under the

Antiterrorism and Effective Death Penalty Act of 1996’s

(AEDPA) one-year statute of limitations. We reverse and

17546 TRIGUEROS v. ADAMS
remand, holding that the California Supreme Court’s request

for informal briefing from the State of California (State) on

Trigueros’s habeas petition led to the California Supreme

Court making a finding of timeliness, and deciding

Trigueros’s habeas petition on the merits.

FACTS AND PRIOR PROCEEDINGS

On December 13, 2002, a California jury convicted

Trigueros and a co-defendant of murdering Humberto Hernandez, and of the attempted willful, deliberate, and premeditated murders of three others. The trial court sentenced

Trigueros to fifty years to life for murder, and a life sentence

with the possibility of parole for each of the three attempted

murder convictions. 

Trigueros gave timely notice of the direct appeal of his conviction on April 2, 2003, arguing ineffective assistance of

counsel because trial counsel allegedly did not appropriately

object to or retain an expert to dispute dog-scent evidence.

The Court of Appeal affirmed the trial court’s judgment, and

on August 8, 2004, the California Supreme Court denied

Trigueros’s petition for review. Trigueros did not appeal to

the United States Supreme Court.

On October 18, 2005, Trigueros filed a habeas petition in

the Los Angeles County Superior Court. The Superior Court

denied the petition on November 29, 2005. In relevant part,

the court stated: “Petition[er] fails to justify a delay of 21⁄2

years between his conviction and the filing of the petition for

habeas corpus. (In re Clark (1993) 5 Cal. 4th 750, 765 &

fn5).” The court’s order also addressed and denied

Trigueros’s petition on the merits. 

Trigueros filed a habeas petition with the Court of Appeal

on February 2, 2006. On February 21, 2006, the Court of

Appeal handed down a brief order stating: “The petition for

writ of habeas corpus is denied.” On April 21, 2006,

TRIGUEROS v. ADAMS 17547
Trigueros filed his habeas petition with the California

Supreme Court. On January 8, 2007, the California Supreme

Court requested “an informal response on the merits” from

the State. The State filed an informal response, arguing in part

that Trigueros’s claims were procedurally barred on timeliness grounds. On June 13, 2007, the California Supreme

Court denied Trigueros’s petition, stating: “The petition for

writ of habeas corpus is denied.” 

On July 3, 2007, Trigueros, proceeding pro se, filed a federal habeas petition in the Central District of California. The

government moved to dismiss the petition as untimely, and

Trigueros filed a “traverse” in response. On August 5, 2008,

the district court adopted the Magistrate Judge’s Report and

Recommendation, finding that Trigueros failed to satisfy

AEDPA’s one-year statute of limitations because the Superior

Court had denied his October 2005 habeas petition as

untimely under Clark. The Magistrate Judge found that the

2005 petition was improperly filed in California state court,

and did not statutorily toll AEDPA’s one-year statute of limitations, which expired on November 16, 2005. Trigueros

timely appeals the district court’s denial of his habeas petition.

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction under 28 U.S.C. § 1294(1). We

review de novo a district court’s dismissal of a habeas petition

on timeliness grounds. White v. Martel, 601 F.3d 882, 883

(9th Cir.), cert denied 131 S. Ct. 332 (2010).

DISCUSSION

1. Motion for Judicial Notice

Trigueros asks us to take judicial notice of documents from

his state-court habeas petition, including his petition to the

Superior Court, the California Supreme Court’s letter to the

17548 TRIGUEROS v. ADAMS
State requesting informal briefing, the briefing the parties

submitted to the California Supreme Court, and the California

courts’ orders. The State argues that the motion for judicial

notice should be denied because Trigueros, representing himself pro se, failed to lodge the state-court record with the district court, and in any event, the documents are irrelevant. We

grant Trigueros’s motion.1

[1] Generally, we consider only the district court record as

developed before appeal. Lowry v. Barnhart, 329 F.3d 1019,

1024 (9th Cir. 2003). Nonetheless, we may take judicial

notice on appeal. Fed. R. Evid. 201(f) (“Judicial notice may

be taken at any stage of the proceeding.”); see also United

States v. Camp, 723 F.2d 741, 744 n.** (9th Cir. 1984). We

retain discretion to take judicial notice of documents “not subject to reasonable dispute.” Fed. R. Evid. 201(b). In particular,

we “may take notice of proceedings in other courts, both

within and without the federal judicial system, if those proceedings have a direct relation to matters at issue.” United

States ex rel. Robinson Rancheria Citizens Council v. Borneo,

Inc., 971 F.2d 244, 248 (9th Cir. 1992); see also Smith v.

Duncan, 297 F.3d 809, 815 (9th Cir. 2002) (taking judicial

notice of the “relevant state court documents, because those

documents have a direct relationship to [petitioner’s habeas]

appeal”), abrogation on other grounds recognized by Moreno

v. Harrison, 245 Fed. Appx. 606 (9th Cir. 2007). 

[2] Here, Trigueros submitted documents on appeal from

the proceedings before the California courts that are “directly

related” to the timeliness of his state habeas petitions. The

Superior Court stated that Trigueros’s petition was untimely,

and the Court of Appeal denied his subsequent petition. Then,

prior to denying Trigueros’s petition, the California Supreme

1We note that the Superior Court’s and California Supreme Court’s

orders were submitted to the district court as part of the State’s motion to

dismiss. These documents are appropriately designated excerpts of record.

Fed. R. App. P. 10(a); Ninth Cir. R. 10-2(b). 

TRIGUEROS v. ADAMS 17549
Court requested briefing from the State on the merits of his

petition, and the State briefed the timing issue, to which

Trigueros replied in his briefing. In short, Trigueros seeks

judicial notice of documents directly related to the timeliness

of his habeas filings. Accordingly, we take judicial notice of

these documents in determining whether Trigueros’s federal

habeas petition was statutorily tolled. 

II. Statutory Tolling

A. Waiver

The State first argues that Trigueros waived his statutory

tolling argument. Specifically, it contends that Trigueros did

not raise his current theory of statutory tolling—that the California Supreme Court overruled the Superior Court’s finding

of untimeliness—before the district court. We disagree with

the State’s reading of the record, and conclude that Trigueros

has sufficiently argued that his federal habeas petition was

timely filed due to statutory tolling of AEDPA’s one-year

statute of limitations. 

Ordinarily, arguments not raised before the district court

are waived on appeal. White, 601 F.3d at 885. However, even

if the petitioner did not present a statutory tolling argument to

the district court, the petitioner may raise it on appeal under

certain limited circumstances. See Lott v. Mueller, 304 F.3d

918, 925 (9th Cir. 2002) (holding that the petitioner could

raise a statutory tolling argument for the first time on appeal

because it was based on the same set of operative facts as his

equitable tolling argument). In particular, if “the issue presented is purely one of law and the opposing party will suffer

no prejudice as a result of the failure to raise the issue in the

trial court,” the petitioner may raise it for the first time on

appeal. Id. (internal quotation marks omitted).

Here, Trigueros represented himself pro se when he filed

his response to the government’s timeliness challenge before

17550 TRIGUEROS v. ADAMS
the district court. “Prisoner pro se pleadings are given the

benefit of liberal construction.” Porter v. Ollison 620 F.3d

952, 958 (9th Cir. 2010). In his self-styled “traverse,”

Trigueros argued before the district court that he had timely

filed his petitions with the California courts, and that his federal petition was therefore timely tolled. He also argued the

merits of the Superior Court’s ruling on untimeliness. While

he does not address the precise legal theory before us, the

same set of operative facts are in play here, and he specifically contended before the district court that he was entitled

to statutory tolling. 

[3] Moreover, Trigueros’s argument on appeal—that the

California Supreme Court’s order overruled the Superior

Court’s timeliness ruling—is primarily a question of law

because the issue is the legal effect of the Supreme Court’s

order on the Superior Court’s finding of untimeliness. There

is also no showing that the State, which is well versed in the

legal doctrines present in this appeal, will be prejudiced if we

hear the claim. Accordingly, Trigueros’s argument on appeal

is not waived because he sufficiently raised the statutory tolling argument before the district court, and because this is primarily a legal issue, consideration of which does not prejudice

the State.

B. The Effect of the California Supreme Court’s

Request for Informal Briefing

[4] AEDPA has a one-year statute of limitations for the filing of habeas petitions. 28 U.S.C. § 2244(d)(1). AEDPA’s

statute of limitations is tolled during the time in which a

“properly filed” state habeas petition is pending. 28 U.S.C.

§ 2244(d)(2). A state habeas petition is “pending” as long as

the ordinary state collateral review process continues. See

Carey v. Saffold, 536 U.S. 214, 219-20 (2002). Accordingly,

a “pending” petition generally includes the time “between a

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

court.” Id. at 223. 

TRIGUEROS v. ADAMS 17551
[5] An untimely state petition is not “properly filed” and

does not trigger statutory tolling under AEDPA. See Pace v.

DiGuglielmo, 544 U.S. 408, 417 (2005). The United States

Supreme Court has clarified that “[w]hen a postconviction

[habeas] petition is untimely under state law, that is the end

of the matter for purposes of § 2244(d)(2).” Id. at 414 (internal quotation marks omitted) (alteration omitted). Applying

this rule, we have held that statutory tolling under

§ 2244(d)(2) is unavailable where a state habeas petition is

deemed untimely under California’s timeliness standards. See

Bonner v. Carey, 425 F.3d 1145, 1149 (9th Cir. 2005), as

amended 439 F.3d 993 (9th Cir. 2006).

The issue in this case is whether Trigueros’s petition filed

with the Superior Court in October 2005 was determined to

be timely by the California Supreme Court. We conclude that

the California Supreme Court decided that Trigueros’s 2005

petition was timely, thereby triggering statutory tolling of

AEDPA’s one-year statute of limitations.

California courts “appl[y] a general ‘reasonableness’ standard” when determining whether a habeas petition is timely

filed in state court. Saffold, 536 U.S. at 222. Under California’s standard, “a [habeas] petition should be filed as

promptly as the circumstances allow.” In re Clark, 855 P.2d

729, 738 n. 5 (Cal. 1993). This means that a prisoner must

seek habeas relief without “substantial delay.” In re Robbins,

959 P.2d 311, 317 (Cal. 1998). In noncapital cases, “to avoid

the bar of untimeliness with respect to each claim, the petitioner has the burden of establishing (i) absence of substantial

delay, (ii) good cause for the delay, or (iii) that the claim falls

within an exception to the bar of untimeliness.” Id. (emphasis

omitted). 

[6] The timeliness of a petition is “measured from the time

the petitioner or his or her counsel knew, or reasonably should

have known, of the information offered in support of the

claim and the legal basis for the claim.” Id. Because the delay

17552 TRIGUEROS v. ADAMS
is measured from when the petitioner knew of the grounds for

relief, “[t]hat time may be as early as the date of conviction.”

Clark, 855 P.2d at 738 n.5. 

[7] The Superior Court found Trigueros’s 2005 petition

untimely because it was filed approximately two-and-one-half

years after he could have discovered that his counsel was

allegedly ineffective at trial. Trigueros argues, nonetheless,

that the California Supreme Court’s order denying his motion

impliedly overruled the Superior Court’s finding of untimeliness. Trigueros relies on Robbins for this proposition. In that

case, the California Supreme Court explained: 

[W]hen respondent asserts that a particular claim or

subclaim should be barred . . . [because it] is

untimely, and when, nevertheless, our order disposing of a habeas corpus petition does not impose the

proposed bar or bars as to that claim or subclaim,

this signifies that we have considered respondent’s

assertion and have determined that the claim or subclaim is not barred on the cited ground or grounds.

Robbins, 959 P.2d at 340 n.34. Trigueros contends that Robbins means that the California Supreme Court determined that

his petition was timely, having decided and denied his petition

on the merits, and because the order did not cite to a California case for the proposition that it was time barred. We agree.

We are mindful that the United States Supreme Court,

without directly citing Robbins, has instructed us that we are

not to presume that a California state court’s denial on the

merits means that a petition was timely. Evans v. Chavis, 546

U.S. 189, 194 (2006). The Court has recognized that California may “pretermit the question whether a petition is timely

and simply deny the petition, thereby signaling that the petition lacks merit.” Walker v. Martin, 131 S. Ct. 1120, 1124

(2011). It explained that 

TRIGUEROS v. ADAMS 17553
the Ninth Circuit must not take “such words” (i.e.,

the words “on the merits”) as “an absolute bellwether” on the timeliness question. We pointed out that

the Circuit’s contrary approach (i.e., an approach

that presumed that an order denying a petition “on

the merits” meant that the petition was timely) would

lead to the tolling of AEDPA’s limitations period in

circumstances where the law does not permit tolling.

Evans, 546 U.S. at 194-95 (citations omitted) (emphasis omitted); see also Walker, 131 S. Ct. at 1124 (explaining that “A

[California] spare order denying a petition without explanation or citation ordinarily ranks as a disposition on the merits”). This means that a petition decided on the merits by the

California Supreme Court “does not automatically indicate

that the petition was timely filed.” Evans, 546 U.S. at 197.

Furthermore, the United States Supreme Court concluded that

where a California Supreme Court order simply states, “Petition for writ of habeas corpus . . . is DENIED,” and does not

contain the words “on the merits,” it is even less likely the

California Supreme Court had considered the petition timely

on the merits. Id. at 195, 197; cf. id. at 207-11 (Stevens, J.,

concurring in the judgment) (disagreeing that prior precedent

rejected the presumption and advocating that a presumption

be adopted as permitted by Robbins, but also recognizing that

“a silent order provides no evidence that the state court considered and passed upon the timeliness issue”). 

[8] Accordingly, with the United States Supreme Court’s

instructions in mind, we do not presume that the California

Supreme Court’s order summarily denying Trigueros’s petition automatically means that the Court considered and found

Trigueros’s petition timely. There are, however, compelling

factual circumstances in this case signaling that the California

Supreme Court did consider and reject the State’s timeliness

argument. Specifically, the California Supreme Court

requested informal briefing on the merits, even though the

Superior Court made a finding of untimeliness and the Court

17554 TRIGUEROS v. ADAMS
of Appeal summarily denied the petition. We find this highly

significant. Additionally, the State briefed the timing issue

and Trigueros responded. The California Supreme Court thus

had before it all of the timeliness arguments from the parties.

Given these factual circumstances, we rely on the California

Supreme Court’s orders practice explained in Robbins and

conclude that it considered Trigueros’s petition timely

because the California Supreme Court had the timeliness

question before it, and did not cite to cases involving a timeliness procedural bar. See Robbins, 959 P.2d at 340 n.34.

We further conclude that these factual circumstances are

distinguishable from those in Bonner v. Carey, 425 F.3d

1145. In Bonner, we considered a situation in which the Superior Court found a habeas petition untimely, and subsequently

the California Supreme Court issued a summary denial of the

habeas petition. We concluded in Bonner that we were

required to “determine what the superior court’s order mean[t]

because that was the last—and only—reasoned decision as to

[the] petition,” as the Court of Appeal and California Supreme

Court had both summarily denied the petition without citation

to any authority. Id. at 1148 n.13. (citing Ylst v. Nunnemaker,

501 U.S. 797, 803 (1991)). Because the Superior Court’s

order relied on untimeliness in its decision, we held that the

state petition was not timely filed and the petitioner was not

entitled to statutory tolling. Trigueros’s case is distinguishable

from Bonner in one very important respect: here, the California Supreme Court requested briefing on the merits from the

State in response to Trigueros’s habeas petition. We conclude

from this significant fact that the California Supreme Court

did not find a timeliness procedural bar, and decided

Trigueros’s petition on the merits.

Interestingly, the State does not dispute the claim that the

California Supreme Court considered Trigueros’s petition

timely. Rather, it argues that under California’s writ system,

each petition is judged on its own timeliness. Specifically,

under California’s unique habeas review system, a state prisTRIGUEROS v. ADAMS 17555
oner must file an original petition for writ of habeas corpus

with each reviewing court within a reasonable period of time

rather than meeting set times for filing a notice of appeal. See

Safford, 536 U.S. at 221-22. Thus, according to the State, a

petition could be untimely filed with the Superior Court, and

yet the next original petition filed with the California

Supreme Court may be timely, without the California

Supreme Court ever ruling on the timeliness of the Superior

Court petition. The State’s position is inconsistent with

United States Supreme Court precedent and the law of this

circuit.

The United States Supreme Court has concluded that while

California has an “original writ” system, in practical terms it

is “analogous to appellate review systems in other States.”

Chavis, 546 U.S. at 192-93; Safford, 536 U.S. at 222-23.

Thus, typically a petitioner will file a petition with the Superior Court and then will file an original petition on the same

issue, seeking the equivalent of appellate review of the trial

or court of appeals decision. Safford, 536 U.S. at 222. If the

delay between filings is reasonable, the petition is “pending”

for purposes of tolling AEDPA’s statute of limitations during

this period. Id. at 225-26. Consistent with the United States

Supreme Court’s understanding of California’s writ system,

we have held that the Court of Appeal’s determination that a

petitioner’s claim was timely, contrary to the Superior Court’s

ruling of untimeliness, meant that the petition was timely

before the lower court. See Campbell v. Henry, 614 F.3d

1056, 1060-61 (9th Cir. 2010). 

[9] Accordingly, we find that Trigueros’s October 2005

petition filed with the Superior Court was deemed timely on

review by the California Supreme Court. As the 2005 petition

was timely filed, and the reasonableness of Trigueros’s subsequent filings on appeal are not in dispute, his petition has been

pending for the duration of state court review, and was statutorily tolled for purposes of AEDPA review.

17556 TRIGUEROS v. ADAMS
CONCLUSION

[10] For the foregoing reasons, we find that the California

Supreme Court found Trigueros’s 2005 habeas petition

timely. Since Trigueros then timely filed in federal district

court on July 3, 2007, less than a month after the California

Supreme Court denied his petition on June 13, 2007, his federal petition was timely filed. We therefore reverse the district

court’s dismissal of the petition and remand for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

TRIGUEROS v. ADAMS 17557