F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

R U S T Y R O G E R S ,

Petitioner-Appellant
,

v.

M I K E F E R R I T E R ; M A R

T I N F R I N K , Respondents-Appellees

. No. 13-35790

D.C. No. 2:12-cv-00013-DL C

OPI NI ON

A ppeal from the United States District Court for the District of Montana Dana L . Christensen, Chief District J udg e, Presiding

Arg ued and Submitted May 7, 2015—Portland, Oreg on

F iled Aug ust 5, 2015

B efore: W illiam A. F letcher and Andrew D. Hurwitz
, Circuit J udg es, and Michael M. B a y lson, * Senior District J udg e.
Opinion by

J udg e W

. F letcher

* T h e Ho n o rab le Mich ael M. B ay lso n , Sen io r District J u d g e f o r th e U .S. District C o u

rt f or th e Easter n D i s t rict o f P en n sy lv an ia, sittin g b y d esig n atio n

.R O G E R S V

. F E R R I T E R 2

SUMMARY * *

Habeas Corpus

The panel reversed the d istrict court’s judg ment dismissing a Montana state prisoner’s h abeas corpus petition as untimely

and remanded for further proceeding s.

The panel held that the prisoner’s application for review of his sentence was “pending ” for purposes of 2 8 U .S.C. § 2 244(d)(2) during the time that the Sentence Revi e w Division (SR D ) of the Montana Supreme Court held it in abey ance so he c ould seek other state collateral review, a nd AEDPA’s statute of limitations was therefore tolled after the SRD held the prisoner’s application in abey ance b ut before he filed for other state collateral relief.

COUNSEL

David F

. Ness (arg

ued), Assistant F ederal Defender, Anthony R. Gallag her, F ederal Defender, F ederal Defenders o f Montana, Great F alls, Montana, for Petitioner-Appellant.

J onathan M. Krauss ( ar gued), Assistant Attorney General, Timothy C. F o x , Attorney General, O ffice o f t h e Montana At torney General, Helena, Montana, for RespondentsAppellees.

** T h is su m m ary co n stitu

t es n o p ar t o f t h e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.R O G E R S V

. F E R R I T E R 3

OP INION

W

. F L ETCHER, Circuit J udg e:

Under the A ntiterrorism a nd Effective Death Penalty A ct (“AEDPA”), state prisoners must file federal petitio ns for habeas corpus wit h i n o n e y ear of the date on w hich the

c h a l l e n ge d c o n v i c t i o n becomes final. 28 U .S.C. § 2 244(d) ( 1 )

. That limitations period is tolled while a p e t i t i o n e r ’ s “ p r o p e r l y f i l e d a p p l i c a t i o n f

o r S t a t e post-conviction or o ther collateral review with respect to the pert i n ent judg ment or claim is pending .” Id. § 2 2 44(d)(2). The disposit i v e i s sue in this case is whether a Montana prisoner’ s application for review o f his sentence was “pending ” during the time that the Sentence Review D ivision of the Montana Supreme Cou rt h eld it in abey a nce so he could seek other state collateral review. W e hold that it was.

I . B ackg round

A . Collateral Review in Montana

This ca se arises out of Montana’s dual-track sy stem for collateral r e v i e w of criminal sentences. On one track, Montana permits prisoners to seek post-conviction collateral relief — ty

p i c ally referred to as “post-conviction relief”

— from b oth the conviction an d s en t ence. Mont. Code Ann. § 46-21-101. The state d istrict c ourt that imposed a criminal
sentence has the power “to vacate, set a side, or correct the sentence.” Id. § 4 6-21-101(1). A petition for post-conviction relief “may be filed at any time w ithin 1 y ear o f the date that the conviction becomes final.” Id. § 46-21-102(1).R O G E R S V

. F E R R I T E R 4

O n the other track, Montana permits prisoners to se e k modification of their sentences from the Sen tence Review Division (“SRD”). The SRD is a subdivision of the Montana Supreme Court consisti n g of three district c ourt judg e s appointed by the chief

justice. See Mont. Code Ann. § 46-18- 901; Charles S. J ordan
, M

o n t a n a’s Sentence Review Division: A Twenty Y

ear Overview
, 49 Mont. L

. Rev. 369, 371 (1988). The SRD “has the authority . . . to affirm, decrease, increase

or otherwise alter any sentence, subject to those limitations applicable to the orig inal sentencing judg e.” J ordan, s u p ra , at 372; see also Mont. Code Ann. § 46-18-904. The SRD is authoriz ed to “adopt any rules that will ex pedite its review o f sentences.” Mont. Code Ann. § 46-18-901(4).

The SRD’s “primary o b j ective

. . . is to provide for uniformity in sentencing when appropriate and to ensure that the interest of the public a n d the defendant are a d equately addressed b y the sentence.” Mont. Sentence Rev. Div. R. 16. The SRD must ensure that a sentence is b a s e d on (1) “[ t] he crime committed”; ( 2) “ [ t] he prospects of rehabilitation of the offenders”; (3) “[ t] he circumstances under which the crime

was committed” ; ( 4 ) and “[ t] he criminal history of the offender.” Id. A sentence is “p r e s u med correct” and “will
not be reduc e d or increased unless it is deemed clearly inadequate or ex cessive.” Id. R. 17.

The rul es g overning the timing f or filing an a

pplication for SRD review a

re somewhat complicated. The one relevant
statute provides that a p etitioner may file an application for SRD review within six ty d ay s of the date the sent e n c e was imposed. Mont. Code An n

. § 4 6-18-903(1). A n SRD rule provides that if an appl i ca t i o n is filed more than six ty day s after sentence is imposed, the SRD “shall thereafter promptly notify the defendant that the application is untimely a ndR O G E R S V

. F E R R I T E R 5

request the defendant file within thirty (30) day s a statement of reasons why the Sentence Review Division should hear the
matter. ” Mont. Sentence Rev. Div. R. 7. The rule specifies that a direct appeal of the sentence is a sufficient “reason” for

a late filing : “The Sentence Review Division will hear late applications which have been c a u s e d by the taking o f an appeal to the Montana Supreme Court.” Id. Rule 8 f u r t h e r provides:

W h en there is a p e n ding appeal or request for
p ost-conviction relief, the application for Sentence Review should not be filed u n til such time as the p e t ition for post-conviction relief or the appeal h a s been determined, at which time the defendant shall be g iven six ty (60) day s in which to file for r ev iew of the
sentence.

Id. I n other words, filing an application within six ty day s o f the imposition of sentence is not a p rison e r ’ s o nly route to SRD r eview. A prisoner may also seek SRD review w it hin six ty day s of the determination o f a d i r e ct appeal, or within six ty d a y s of the determination of a petition f or postconviction review.

B

. State Proceeding s

Petitioner Rusty Rog ers was convicted in a state jury trial i n M o ntana of two counts of felony sex ual assault. State v. Rogers
, 168 P.3d 669, 671 (Mont. 2007). On F e bruary 2, 2006, the state d i s t rict court sentenced Rog e rs to “twenty -y ear c oncurrent p rison terms on both counts, with ten
y ears suspended.” Id. at 6 74. Rog ers filed an application for SRD review five day s later.R O G E R S V

. F E R R I T E R 6

On September 11, 2 0 0 7, the Montana Supreme Court affirme d R o g ers’s convictions and sentences on direct appellate review. I

d. at 678. Rog ers did not seek certiorari, and his convictions became final ninety day s later. Bowen v

. Roe
, 188 F .3d 1157, 1159 (9th Cir. 1 999). On J anuary 3
, 2008, after Rog ers’s convictions had become final, the SRD notified Rog ers that it would hold a hearing to rev i e w his sentence on F ebruary

7.

On J a n u ary 18, the SRD sent Rog ers another letter,

ex p laining that i t had learned from Rog e rs’s father that Ro ge r s w a s in the process of filing a petition for state postconviction relief. The SRD ex plained its standard practice:

Pursuant to Rul e 7 o f the Rules of the Sentence Review Division of the Supreme Court of Mont a

na, please be advised that all appeals must be completed prior to a sentence review hearing

.

I f y ou are in fact filing a post conviction relief, y our app lication for sentence r eview will b e held in abey ance p ending the o utcome of y our post conviction and notification to the Sentence Review Division within six ty (60) d a y s f r o m t h e d a t e i n w h i c h y o u r postconviction is decided.

Please reply as soon as possible to the address above as to whether y ou are proceedi n g with

a post conviction or o ther ty pe o f an appeal. I f y ou are, I will continue y our hearing pending the outcome o f y our post conv i c t i on or other ty

pe of an appeal . . . .R O G E R S V

. F E R R I T E R 7

Rog ers r eplied in a handwritten letter on J anuary 2 5
, stating that he had a n e w lawy e r “looking o ver my case so that he can file for the nex t l e v e l o f the appeal process.” Rog ers asked the SRD to c a n ce l h is F ebruary 7 hearing a nd push back his sentence r e v iew process “as far as possible until all of my

appeal options have been ex h a usted.”

On J anuary 29, the SRD i s s u ed an Order to Continue Sentence Review Hearing

. The SRD ordered “tha t t he
sentence rev i e w hearing

. . . is hereby vacated, and the Application for Review o f Sentence will be held in abey a nce pending notification to the Sentence Review Division within 60 day s o f the decision of the D efendant’s final appeal.” On J anuary 31, the SRD wrot e t o R o g ers, informing him, “You will need to notify the Sentence Review Division within six ty (60) day s from the d ate in whi c h y our post conviction is decided if y ou are still interested in pursuing a review of y our sentence w ith the Sentence Review Division. I f y ou fail to notify this office within the time allowed, y our file will not be reactivated.”

Rog ers filed a petition for state post-conviction relief on November 28, 2008, 303 day s after the SRD ordered his application for senten c e review held in abey ance. The state district court d enied post-convic t i o n relief. The Montana Supreme Court affirmed the denial on May 17, 2011. Rogers

v. State
, 253 P.3d 8 8 9 ( M o n t. 2011). Rog ers did not notify the SRD within six ty day s of t h e Supreme Court’s decision. Consequently
, the SRD d id not reactivate his sentence r eview application.R O G E R S V

. F E R R I T E R 8

C. F ederal Proceeding s

On March 9, 2012, Rog ers filed a f e d eral habeas petition, 297 d a y s a fter the Montan a Supreme Court affirmed the denial o f post-convictio n r e l i ef. The parties ag ree that Rog ers’s federal habeas petition is untimely absent statutory tolling of the 303-day period while his application for SRD review was held in abey

ance.

The mag istrate judg e concluded that Rog ers’s a pplication for SRD review was a “properly filed application for State

. . . collateral review” within the meaning of § 224 4 (d)(2), a nd that AEDPA’s statute of limitations was tolled when Rog ers applied fo r sentence review by the SRD. However, he concluded that Rog ers’s application was no long er “pending ”

as soon as the SRD held it in abey ance. H e c o n c luded that the limitations period was therefore n ot tolled during the 303 day s f rom J anuary 29, 2008, when the SRD orde r e d that Rog ers’s application be held in abey a n c e, to November 28, 2008, when Rog ers filed his petition for state post-conviction relief.

The mag istrate judg e ack n owledg ed the d efinition o f “pending ” provided by the Supreme Cou r t in Carey v

. Saffold
, 536 U.S. 2 14 (2002). I n Saffold
, the Court h eld that “an ap p l i cation is p ending as long as the ordinary state collateral review process is ‘in continuance’

— i.e.
, ‘ until the

co m p l e tion of’ that process.” Id. at 219–20. B ut the
mag istrate judg e viewed Saffold as inapposite be c a use the question there w a s whether a petition w as pending during “g aps” between successi v e filing s in state court. The
mag istrate judg e pointed out that “g a p tolling ” is not a t issue in this case. I n stead, the issue is whether a petition is pending while it is held in abey a n c e s o that a prisoner can f ile aR O G E R S V

. F E R R I T E R 9

separate petition for other collateral r e l i e f

. The mag istrate judg e ex plained that if the limitations period were tolled whenever a prisoner ap p l i e s for SRD r eview within 60 day s of sentencing
, and the SRD then holds the applicat i o n in abey ance until all other proceeding s are c ompleted, the tolled period could b e ex tremely long

. H e w rote that if tolling were allowed in this circumstance,

every Montana p risoner q

ualified for sentence review wou l d be well-advised to apply for [ senten ce review] within six ty d ay s o f sentencing
, whether review was really desired

or not. Doing so would, in effect, increase the federal limitations period to at least two y ears and two months: one y ear after the conclusion

o f direct review to pr e p a r e a s t a t e p ostconviction petition, six ty day s thereafte r to decide whether to g o ahead wi th sentence review, and then one mo r e y ear after that to prepar e a federal petition — a ll under the time-shelter of a sentence review app l i cation filed six ty day s a fter sen tencing
, and all witho u t ever intending a c tually to face the judg es of the Sentence Review Division.

The mag istrate judg e concluded that the “time should be tolled under § 2244(d)(2) w h ile Rog ers’ application for
sentence review w as active, but not while it was inactive.” On this view of the matter, AEDPA’s limitations period was not tolled durin g t h e 303-day period b etween J anuary 29, 2008, when the SRD ordered that Rog ers’s application be held, and November 28, 2 008, when Rog ers filed h is petition for post-conviction relief. T he district court ag reed with, a ndR O G E R S V

. F E R R I T E R 10

a dopted in f

ull, the conclusions o f the mag istrate judg e, a n d dismissed Rog ers’s petition as untimely

.

I I . Standard of Review

W e r eview d e n ovo whether the district cour t e r red in dismissing a habeas petition as untimely

. Banjo v. A y e r s , 614 F .3d 964, 967 (9th Cir. 2010). The pe t i t i o ner b ears the burden of proving

the limitations period was tolled. Id.

I I I

. Discussion

Althoug h AEDPA’s one-y ear statute of limitations “beg ins to run when the state prisoner’s conviction becomes final,” the limitations period is tolled while a “prisoner’s ‘properly filed application for State p ost-conviction or other collateral review with respect to the pertinent j u dg ment o r claim is pending .’” I d

. a t 968 (quoting 28 U .S.C. § 2244(d)(2)). The dispositive question on appeal is whether AEDPA’s statute of limitations w as tolled after the SRD h eld Rog ers’s application in abey ance but before Rog ers filed for other state collateral relief. T he key t o a nswering this question is the Supreme Court’s interpretation of “ pending

. ”

The Supr e m e Court construed “pending ,” as used in § 2244(d)(2), in Carey v. Saffold

. California had arg ued that “an application for state c ollateral review is not ‘pending ’ in th e s t ate c ourts during the interval between a lower court’s entry of judg ment and the timely filing of a n o tice o f appeal (or p etition for review) in the nex t court. I ts rationale [was] that, during this period of time, the petition is not under court consideration.” 5 36 U.S. at 219 (citation omitted). The Court

r e j e cted the arg ument that an a pplication for state collatera lR O G E R S V

. F E R R I T E R 11

relief is “ pendin g ” only when it is actively under consideration by

a state court.

The Court ex plained that interpreting “pending ” to refer only to applications actively under consideration was “ not

c o n s i s tent w ith that word’s ordinary meaning .” Id. The Court relied on dictionary definitions:

The dictionary defines “pending ” (when used

a s an adjective) as “in continuance” or “not
y et decided.” W

e b ster’s Third New International Dictionary 1669 (1993 )

. I t similarly defines the term ( when used as a preposition) as “ throug h the period o f continuance

. . . of,” “ until the

. . . completion of.” Id. That definition, a pplied in the present contex t, means that an application is pending as long as the ordinary

state collateral review
process is “in continuance” — i.e.
, “until the completion o f” t h at process. I n other w ords, until the a

p plication h as achieved final resolution throug h the State’s post-conviction
p r o c e d u r e s , b y d e f

i n i t i o n i t r e m a i n s “pending .”

Id. at 219–20.

Thus, unde r Saffold
, a

n application for state collateral relief is pending as long as it is “in c o ntinuance.” W e believe that Saffold ans w e r s the question before us. Rog ers’s
sentence r eview application was “in continuance” so long a s the SRD held it in abey a nc e

. His application for sentence review was held in a

b ey ance by the SRD on J a nuary 29, 2008, and d id not “achieve[ ] final resolution” u ntil six ty day sR O G E R S V

. F E R R I T E R 12

after the Montana Supreme Court affirmed the denial of postconviction relief.

Our decision in W

elch v. Carey
, 350 F .3d 1079 (9th Cir. 2003) (en b anc), is not t o t he contrary

. I n that c ase, the habeas p etitioner “filed a state habeas p etition

. . . raising o ne g round, lost, a

nd pursued it n o further. F our and a half y ears later, petitioner f

iled a second state habeas petition — this time in the California Supreme Court — raising different
gr o unds.” I

d

. at 1080. W e h eld that “as a matter of fe d e ra l law, th a t p e titioner had no application for post-conviction reli e f ‘ p ending ’ during the four and a half y ear g ap.” Id. “During that period of inaction, all [ the petitioner] had under
state law was an opportunity to seek r elief of which h e did not take advantag e.” Id. at 1083.

The contrast between W elch and this case i s obvious. W elch involved a petitioner who f iled o ne petition f

o r state habeas reli e f

, lost, did not appeal, and filed a separate state habeas petition four y ears later. B y c ontrast, Rog ers filed two overlapping petitions. His a p plication to the SRD was not an “opportunity to seek relief of which he did n o t t a k e advantag e.” Rather, i t w a s an ong oing application for
sentence r eview that the SRD, following its n ormal practice, chose to hold in abey anc e while h e pursued other collateral relief.

I n R hi n es v. W

eber
, 544 U.S. 269 (2005), the Supreme Court discussed the r e l a tionship between AEDPA’s limitations period a

nd the bar on mix e d petitions. The Court

was c oncerned that “petitioners who come to federa l court wit h ‘ m i x e d’ petitions r

un the risk of forever losing their
op p ortunity for any federal review of their unex hausted claims. I f a p etitioner files a timely but mix ed petition inR O G E R S V

. F E R R I T E R 13

federal district court, and the district court dismisses it

. . . after the limitations p eriod has ex pired, this w ill likely mean the termination of any f

ederal r eview.” Id. at 275. To avoid this consequence, the Court a pproved a “‘stay -and-abey ance’ procedure,” authoriz ing distri c t courts to “stay the petition and hold it in abey a

n ce while the petitioner returns to state court to ex haust his previously unex hausted claims.” Id.

W e have described the leg al e ffect o f a district court order holding a petition in abey a nce: “ R hin es carved out an

ex c e ption to [ the] total ex haustion rule, allow i n g a mix ed petition to r emain p e n ding in fe d eral court under limited circumstances.” King v

. Ryan
, 564 F .3d 1133, 1140 (9th Cir. 2009) (emphasis added). This “ex c eption eliminates entirely
any limitations issue wi t h reg ard to the orig inally

unex h a usted claims, as the claims remain pending in federal
court throug hout.” Id. ; see als o E P A v. EME Homer City Generation, L.P. , 134 S. Ct. 1584, 1597 n.11 (2014) (noting that other challeng es to a reg ulation “were not co n solidated with this proceeding
, and they remain pending (held in abey ance for these cases) in the Six t h and D .C. Circuits”); W oodbury v. United States
, 3 1 3 F .2d 291, 297 ( 9th Cir. 1 963) (noting that an appellant “also h as a case pending in the Court of Claims, the case being held in abey ance pending our decision”).

The fed e ral procedure, in w hich a f ederal court holds in ab ey ance a federal habeas petition while a state court addresses u nex hausted state post-conviction claims, is analog ous to the S R D ’ s procedure, in which the SRD holds in abey ance an appl i ca t ion while a state court addresses undecided state post-conviction claims. W e see no reason wh y , i f a federal habeas petition is “pending ,” a stateR O G E R S V

. F E R R I T E R 14

a p p l ication for sentencing review is not “pending ” i n analog ous circumstances.

The mag istrate and distric t judg es who carefully considered this case were appropriately concerned about the practical p roblem of apply ing Saffold ’s construction of the word “pending ” to Montana’s dual-track sy stem of collateral review. W e have two answers to their concern.

F irst, we are not f

ree to ig nore the established meaning o f

a word based on policy conc e r n s. The Court recently emphasiz ed this in Kellogg Brown & Root Servic e s ., Inc. v

. United S tates ex rel. Carter
, 135 S. Ct. 1970 (2015), in which it construed “pending ” as used in the F alse Claims A ct (“F CA”). Under the F CA’s first-to-file bar, if a party bring s

a qui tam action, “no person o ther than the Government may intervene or bring a related action b ased on the facts underly ing the pending action.” 3 1 U.S.C. § 3730(b)(5). The petitioners arg ued that p ending was “ used as a short-hand for the first f i led action.” Kellogg
, 135 S. Ct. at 1979. I n their view, “the first-filed action remains ‘p e nding ’ even a fter it has been dismissed, and it forever bars any subsequent r elated action.” Id.

The Court rejected th e petitioners’ “peculiar” interpretation. Id. at 1978. Rely ing o n dictionary definitions,

as it h a d i n S

affold
, the Court held that pending “means ‘[ r] emaining undecided; awaiting decision,’” id

. (quoting Black’s Law Dictionary 1314 (10th ed. 2014)), and “ ‘not y et decided: in continuance: i n s u spense,’” id. (quoting W ebster’s Third New International Dic t ionary 1669 (1976)). After an action was dismissed, it was no long er pending

. I d.R O G E R S V

. F E R R I T E R 15

The Cou r t recog niz ed that its c o nstruction o f “pending ” “would produce practical problems.” Id. at 1979. The Court noted that “if the first-to-file bar is lifted once the first-filed action ends, defendants may b e reluctant to settle such actions for the full a mount that t h e y would accept if there were no prospect of subsequent suits asserting the same claims.” Id. Nevertheless, the Court held that whi l e F CA “provisions present many int erpretive challeng es

. . . it is bey o nd our ability in this case to make them o perate tog ether smoothly like a finely tuned machine.” Id

. D espite the practical problems that mig ht follow, the Court said it had “no reason not to interpret the term ‘pending ’ in the F CA in accordance with its ordinary

meaning .” Id. at 1978.

Second, as the State conceded at oral arg ument, the practical p roblem is “easily fix ed.” I f the SRD is faced with

an early -filed appl i c ation like Rog ers’s, it has a choice. I t may h o ld the application in a b e y ance, with the consequence

we see here. Or it may dismiss the applic a t i o n w ithout prejudice, leaving the p risoner to reapply
, und er i t s Rule 7, within six ty d a

y s after the direct appeal has been determined

or within six ty day s after a petition for post-conviction r eview has been determined. No new state statute would be required. The SRD does not even need to issue new rules. All the SRD
must do, the State conceded at arg ument, is chang e “how they issue their orders, or word their orders.”

Conclusion

W e REVERSE the distr i ct court’s judg ment a nd REMAND for further proceeding s c onsistent w ith this opinion.