FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DEL BANJO, 

No. 08-56512 Petitioner-Appellant,

D.C. No.

v.  2:07-cv-02142-

ROBERT L. AYERS, JR., Warden, GHK-RC

San Quentin Prison, OPINION Respondent-Appellee. 

Appeal from the United States District Court

for the Central District of California

George H. King, District Judge, Presiding

Argued and Submitted

May 6, 2010—Pasadena, California

Filed June 17, 2010

Before: Diarmuid F. O’Scannlain and Richard C. Tallman,

Circuit Judges, and Frederic Block, District Judge.*

Opinion by Judge Tallman

*The Honorable Frederic Block, Senior United States District Judge for

the Eastern District of New York, sitting by designation. 

8851
COUNSEL

Dennis A. Fischer (argued) and John M. Bishop, Santa Monica, California, for petitioner-appellant Del Banjo.

Edmund G. Brown Jr., Attorney General of California, Dane

R. Gillette, Chief Assistant Attorney General, Pamela C.

Hamanaka, Senior Assistant Attorney General, Xiomara Costello, Supervising Deputy Attorney General, and Daniel C.

Chang, Deputy Attorney General (argued), Los Angeles, California, for respondent-appellee Robert L. Ayers, Jr., Warden,

San Quentin Prison.

OPINION

TALLMAN, Circuit Judge:

Petitioner-Appellant Del Banjo, a California prisoner,

appeals an order dismissing his federal habeas corpus petition

as untimely pursuant to 28 U.S.C. § 2244(d). The district

court determined that Banjo’s state court petition for habeas

corpus was no longer “pending” during the five-month period

between the dismissal of his original petition in the Los Angeles County Superior Court and the filing of a successive petition in the same court, resulting in the expiration of his time

to bring a federal habeas petition. Banjo argues that, pursuant

to California law, his successive petition was timely, because

the fact that he was seeking new evidence to support his

claims explained and justified the delay. Thus, he contends

that the federal habeas statute of limitation should toll. We

disagree, and affirm the district court.

I

On July 13, 2000, Banjo was convicted by a Los Angeles

County jury of one count of kidnapping with the intent to

8854 BANJO v. AYERS
commit rape and/or sodomy and one count of sodomy. He

was sentenced to prison for twenty-five years to life on January 8, 2001. He appealed to the California Court of Appeal

and California Supreme Court without success.

Banjo then began his state habeas proceedings. On December 30, 2003, he filed his first petition in the Los Angeles

County Superior Court, requesting relief on three grounds.

The superior court issued an order to show cause on one

claim, denying relief on the others. The court ultimately held

an evidentiary hearing on Banjo’s claim, but denied the petition on January 28, 2005, after finding Banjo’s key witness

not credible. On February 10, 2005, Banjo’s motion to reconsider was likewise denied.

Almost five months later, on July 6, 2005, Banjo filed a

second petition for a writ of habeas corpus in the Los Angeles

County Superior Court. In this petition, Banjo brought the

same three claims he had alleged in the first petition, but

appended declarations from five new witnesses. The declarations were offered to corroborate the evidence and independently establish the factual allegations that Banjo had raised

at the first hearing.

The court denied Banjo’s second petition on July 27, 2005,

in part because Banjo failed to exercise due diligence in locating the new witnesses. The court observed that the petition

“relie[d] upon declaration[s] by people who live in the Southern California area and have been available for investigation,

interview and testimony at all relevant times. These are matters that could have been and should have been presented during the extensive proceedings on the first habeas petition.”

Banjo next filed a habeas petition in the California Court of

Appeal on September 29, 2005. On April 11, 2006, the court

denied that petition without comment. Banjo then filed his last

state habeas petition on May 18, 2006, before the California

BANJO v. AYERS 8855
Supreme Court. That petition was summarily denied on

March 21, 2007.

Banjo then moved to federal court. He filed a petition for

a writ of habeas corpus in the Central District of California on

April 2, 2007. California’s motion to dismiss the federal petition as untimely was granted. This appeal timely followed.

II

The sole issue on appeal is whether the district court erred

in determining Banjo’s petition was untimely. We review that

question de novo. Miles v. Prunty, 187 F.3d 1104, 1105 (9th

Cir. 1999). Banjo bears the burden of proving that the statute

of limitation was tolled. Smith v. Duncan, 297 F.3d 809, 814

(9th Cir. 2002), abrogated on other grounds by Pace v.

DiGuglielmo, 544 U.S. 408 (2005). We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(c), and we affirm.

III

A

[1] The Antiterrorism and Effective Death Penalty Act of

1996 sets a one-year statute of limitation on habeas corpus

petitions filed by state prisoners. 28 U.S.C. § 2244(d); Evans

v. Chavis, 546 U.S. 189, 191 (2006); Waldrip v. Hall, 548

F.3d 729, 734 (9th Cir. 2008). The one-year period begins to

run when the state prisoner’s conviction becomes final.1 28

U.S.C. § 2244(d)(1)(A). This one-year limitation period tolls,

however, while the prisoner’s “properly filed application for

State post-conviction or other collateral review with respect to

the pertinent judgment or claim is pending.” 28 U.S.C.

§ 2244(d)(2).

1While there are other triggers for starting the running of the statute of

limitation, 28 U.S.C. § 2244(d)(1)(B)-(D), none is relevant here. 

8856 BANJO v. AYERS
[2] Post-conviction review is “pending,” and thus the statute of limitation tolls, while a prisoner is pursuing a full round

of habeas relief in the state court. Carey v. Saffold, 536 U.S.

214, 219-21 (2002); Delhomme v. Ramirez, 340 F.3d 817,

819-20 (9th Cir. 2003), abrogated on other grounds by

Chavis, 546 U.S. 189. The period in which a habeas petition

is pending includes the time between a lower court’s adverse

ruling and the prisoner’s filing of a notice of appeal, so long

as the filing comports with state law timeliness requirements.

Chavis, 546 U.S. at 191. An untimely petition, however, is not

“properly filed” pursuant to 28 U.S.C. § 2244(d)(2), and so it

does not toll the statute of limitation. Pace, 544 U.S. at 410;

Thorson v. Palmer, 479 F.3d 643, 645 (9th Cir. 2007). 

[3] Under California’s unusual system of independent collateral review, a prisoner seeks review of a lower court’s

denial of relief by filing an original petition for habeas corpus

in the reviewing court. Chavis, 546 U.S. at 192-93; Waldrip,

548 F.3d at 734. The period between a California lower

court’s denial of review and the filing of an original petition

in a higher court is tolled—because it is part of a single round

of habeas relief—so long as the filing is timely under California law. Chavis, 546 U.S. at 191-93; Waldrip, 548 F.3d at

734. 

[4] A California petition is timely filed if it is filed within

a “reasonable time.” Chavis, 546 U.S. at 192-93; Waldrip,

548 F.3d at 734. California has not provided guidance as to

what constitutes a “reasonable time.” Chavis, 546 U.S. at 198;

Waldrip, 548 F.3d at 734. In the absence of clear direction

from the California courts, either in a particular case or in

general, we must determine whether the petition at issue was

filed within a “reasonable time.” Chavis, 546 U.S. at 198. We

cannot infer from a decision on the merits, or a decision without explanation, that the California court concluded that the

petition was timely. Id. at 194 (citing Saffold, 536 U.S. at

225-26). A California court’s determination that a filing was

untimely, however, is dispositive. Saffold, 536 U.S. at 226

BANJO v. AYERS 8857
(“If the California Supreme Court had clearly ruled that Saffold’s 41⁄2-month delay was ‘unreasonable,’ that would be the

end of the matter . . . .”). 

[5] Only the time period during which a round of habeas

review is pending tolls the statute of limitation; periods

between different rounds of collateral attack are not tolled.

Biggs v. Duncan, 339 F.3d 1045, 1048 (9th Cir. 2003). We

employ a two-part test to determine whether the period

between the denial of one petition and the filing of a second

petition should be tolled. Hemmerle v. Schriro, 495 F.3d

1069, 1075 (9th Cir. 2007); King v. Roe, 340 F.3d 821, 823

(9th Cir. 2003), abrogated on other grounds by Chavis, 546

U.S. 189. “First, we ask whether the petitioner’s subsequent

petitions are limited to an elaboration of the facts relating to

the claims in the first petition.” King, 340 F.3d at 823. If the

petitions are not related, then the subsequent petition constitutes a new round of collateral attack, and the time between

them is not tolled. Hemmerle, 495 F.3d at 1075; King, 340

F.3d at 823. If the successive petition was attempting to correct deficiencies of a prior petition, however, then the prisoner

is still making “proper use of state court procedures,” and

habeas review is still pending. King, 340 F.3d at 823 (quoting

Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999)); Hemmerle, 495 F.3d at 1075. Second, if the successive petition

was not timely filed, the period between the petitions is not

tolled. Hemmerle, 495 F.3d at 1075; King, 340 F.3d at 823.

B

[6] Banjo’s conviction was affirmed by the California

Court of Appeal, and the California Supreme Court denied

review on October 16, 2002. Because Banjo did not petition

for certiorari, his conviction became final ninety days later, on

January 14, 2003. Sup. Ct. R. 13; Brambles v. Duncan, 412

F.3d 1066, 1069 (9th Cir. 2005) (citing Bowen v. Roe, 188

F.3d 1157, 1158-59 (9th Cir. 1999)). Banjo did not file a federal petition for a writ of habeas corpus pursuant to 28 U.S.C.

8858 BANJO v. AYERS
§ 2254 until April 2, 2007, more than four years later.

Accordingly, absent statutory tolling under 28 U.S.C.

§ 2244(d)(2), Banjo’s petition was untimely.

On December 30, 2003, Banjo filed his first petition for a

writ of habeas corpus in Los Angeles County Superior Court.

At that point, he had used 350 days of his one-year federal

time limit to file a petition in district court. That petition was

denied on January 28, 2005, after the superior court found

Banjo’s witness in support of his claim not credible. Banjo

filed a motion for reconsideration on February 4, 2005, which

was denied six days later on February 10. One hundred fortysix days later, on July 6, 2005, Banjo filed a successive petition in the superior court, raising the same claims as his first

petition, but attaching what he claimed was newly discovered

evidence. The superior court denied the petition on July 27,

2005. Sixty-four days later, on September 29, 2005, Banjo

filed an original habeas corpus petition in the California Court

of Appeal, again alleging the same claims; it was denied on

April 11, 2006. On May 18, 2006, Banjo filed another original

habeas corpus petition, again alleging the same claims, this

time in the California Supreme Court, which denied relief on

March 21, 2007.

As the district court concluded, “[i]t is clear that the statute

of limitations was tolled from the filing of the First Superior

Court Petition until the motion for reconsideration was denied

on February 10, 2005.” California does not argue otherwise.2

The first question we must address, then, is whether Banjo’s

successive petition in the superior court meets the requirements of King, such that the interval between the denial of

Banjo’s first petition and the filing of his second in the Los

Angeles County Superior Court is tolled.

2California does quibble that the time between the denial of Banjo’s

first petition and the filing of his motion for reconsideration should not be

tolled. In light of our holding that Banjo’s 146-day delay was not reasonable, and that Banjo’s time for filing a federal petition would have elapsed

during this period, we do not address the earlier seven-day delay. 

BANJO v. AYERS 8859
The parties dispute both whether Banjo’s successive petition started a “new round” and whether the successive petition

is timely. Because we conclude that Banjo’s petition is not

timely under the second prong of King, we need not determine whether the petition was a continuation of the first or the

start of a second round. 

The second part of the King analysis examines whether a

successive petition was timely filed under state law. As discussed above, the standard for whether a petition was timely

filed under California law is whether the petition was filed

within a reasonable time.

Here, the superior court did not make a determination that

Banjo’s second petition was untimely. Rather, the court—

treating the second petition as a motion for a new trial—found

that the new evidence could with reasonable diligence have

been discovered earlier, and thus denied relief. California law

provides that a new trial may be granted on the basis of new

evidence, unless that evidence could have been found prior to

trial in the exercise of reasonable diligence. Cal. Penal Code

§ 1181(8); People v. Martinez, 685 P.2d 1203, 1205 (Cal.

1984). Thus, while the superior court rejected the petition, it

did not explicitly reject it as untimely filed. See Artuz v. Bennett, 531 U.S. 4, 10-11 (2000) (distinguishing between timeliness, which is a condition to filing, and procedural bars,

which are conditions to relief); but cf. Saffold v. Newland, 250

F.3d 1262, 1266-67 (9th Cir. 2000) (assuming that a California habeas petition denied “for lack of diligence” was a dismissal for untimeliness), overruled on other grounds by

Saffold, 536 U.S. 214.

[7] The state court’s failure to explicitly decide whether a

petition was untimely filed does not end our analysis. Chavis,

546 U.S. at 194, 197; Saffold, 536 U.S. at 225-26. We must

instead engage in an inquiry as to whether California courts

would have deemed the petition filed within a reasonable

8860 BANJO v. AYERS
time. Chavis, 546 U.S. at 198. Here, they plainly would not

have. 

[8] The Supreme Court has previously opined that California courts would not consider an unjustified and unexplained

six-month delay “reasonable.” Id. at 201. Further, the Court

has permitted interval tolling under California’s unusual system of habeas petitions and imprecise time limits on the

assumption “that California’s ‘reasonable time’ standard

would not lead to filing delays substantially longer than those

in States with determinate timeliness rules.” Id. at 199-200

(citing Saffold, 536 U.S. at 222-23). Chavis presumed a 30-

or 60-day delay would be the norm in most states, 546 U.S.

at 193, 201; Saffold only 30 to 45 days, 536 U.S. at 222.

Banjo waited 146 days. We cannot conclude that such a delay

is reasonable, nor is it consistent with the short periods of

time permitted by most states and envisioned by the Supreme

Court in reaching its decisions in Saffold and Chavis. 

[9] Banjo counters that the California Supreme Court has

held that a successive habeas petition will be considered on

the merits if the prisoner explains and justifies the failure to

present the claims in a timely manner as part of a prior petition. In re Clark, 855 P.2d 729, 745 (Cal. 1993). He contends

that he met this standard, because he was continuing to

develop evidence that would support a claim that was initially

rejected for lack of evidence. But California law requires that,

in “assessing a petitioner’s explanation and justification for

delayed presentations of claims,” a court “consider whether

the facts on which the claim is based, although only recently

discovered, could and should have been discovered earlier. A

petitioner will be expected to demonstrate due diligence in

pursuing potential claims.” Id. at 745. 

[10] In rejecting Banjo’s second habeas petition, the superior court found that Banjo’s newly discovered evidence

“could have been and should have been discovered and produced” earlier; indeed, it cites the same general section of In

BANJO v. AYERS 8861
re Clark. If the evidence sought during the nearly five-month

delay between the denial of the first petition and the filing of

the second was evidence that should have been discovered

earlier in the exercise of due diligence, the delay cannot be

deemed justifiable. A California court would not have found

this delay reasonable. 

[11] We hold that Banjo’s filing of his successive petition

was not timely.

C

[12] Banjo alternatively argues that the period between the

denial of his first petition and his filing of an original petition

in the California Court of Appeal, as contemplated under state

law, was not an unreasonable delay. The first superior court

petition was denied on February 10, 2005, and the petition to

the Court of Appeal was filed more than seven months later,

on September 29, 2005. If the delay between the filing of the

first and second superior court petitions was not reasonable,

this even longer period cannot be either. We hold that the

petition to the California Court of Appeal was not timely

filed.

IV

[13] At the time the first habeas petition was denied by the

superior court, Banjo had only fifteen days remaining of his

one-year time limit to file a federal habeas petition. Because

he did not timely file either the second petition with the superior court or the petition in the Court of Appeal, his petition

was not “pending,” and he is not entitled to interval tolling.

The statute of limitation thus ran on February 25, 2005, well

before Banjo filed his federal petition. The district court did

not err in dismissing the petition as untimely.

AFFIRMED.

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