FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RICHARD DEAN THORSON,  No. 02-17359

Petitioner-Appellant, D.C. No.

v.  CV-02-05212-AWI/

SMS ANA M. RAMIREZ PALMER,

Respondent-Appellee. OPINION 

Appeal from the United States District Court

for the Eastern District of California

Anthony W. Ishii, District Judge, Presiding

Argued and Submitted

November 13, 2006—San Francisco, California

Filed February 15, 2007

Before: William C. Canby, Jr., John T. Noonan, and

Richard A. Paez, Circuit Judges.

Opinion by Judge Canby

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COUNSEL

Richard Dangler; C. Roman Rector; Sacramento, California,

for the petitioner-appellant. 

Catherine Chatman, Deputy Attorney General, Sacramento,

California, for the respondent-appellee.

OPINION

CANBY, Circuit Judge: 

Richard Thorson appeals the district court’s dismissal of his

federal habeas corpus petition, brought pursuant to 28 U.S.C.

§ 2254, as time-barred. We have jurisdiction under 28 U.S.C.

§ 2253. Reviewing de novo, Brambles v. Duncan, 412 F.3d

1066, 1069 (9th Cir. 2005), we affirm. We conclude that,

because the California Supreme Court denied Thorson’s state

habeas petition as untimely, Thorson was not entitled to tolling while his untimely petition was pending in state court.

Without that tolling, Thorson’s federal habeas corpus petition

fell outside the one-year limitation period for a state prisoner

filing a federal habeas corpus petition.

Background

Thorson was convicted in California state court of second

degree murder. His conviction was affirmed on direct review

and became final on June 25, 1997.

Thorson unsuccessfully sought habeas relief in California

Superior Court 114 days later. More than a year and a month

after the denial of his first state habeas petition, Thorson filed

a second habeas petition in the California Court of Appeal.

His second petition was denied without comment or citation.

Twenty-one days later, Thorson filed a third habeas petition

1898 THORSON v. PALMER
in the California Supreme Court. That court denied Thorson’s

third petition with the following order, which stated in its

entirety: 

Petition for writ of habeas corpus is DENIED. (See

In re Robbins (1998) 18 Cal. 4th 770, 780.). 

On January 31, 2002, 124 days after the Supreme Court’s

summary denial, Thorson filed the present petition for habeas

corpus in federal district court. The district court denied the

federal petition as untimely, finding that Thorson was not

entitled to tolling under 28 U.S.C. § 2244(d)(2) because the

California Supreme Court had denied his state habeas petition

as untimely.

Discussion

[1] Thorson was required to seek federal habeas corpus

relief by June 26, 1998, a year and a day after his state court

conviction became final. 28 U.S.C. § 2244(d)(1)(A); Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001) (applying

Federal Rule of Civil Procedure 6(a) to the AEDPA statute of

limitations). Absent tolling, Thorson’s federal habeas petition,

filed on January 31, 2002, falls far outside the one-year limitation period of § 2244. 

[2] Thorson was entitled to tolling of the one-year limitations period for those time periods during which his “properly

filed” state habeas petitions were “pending.” 28 U.S.C.

§ 2244(d)(2). But if the California Supreme Court denied his

third petition as untimely, that petition was neither “properly

filed” nor “pending,” in which case Thorson would not be

entitled to statutory tolling. See Bonner v. Carey, 425 F.3d

1145, 1149 (9th. Cir. 2005) (citing Pace v. DiGuglielmo, 544

U.S. 408, 417 (2005)). 

[3] We conclude that the California Supreme Court clearly

rejected Thorson’s habeas petition as untimely. The Court’s

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summary order cites the very page of Robbins that sets forth

“the basic analytical framework” governing California’s timeliness determinations in habeas corpus proceedings. See Robbins, 18 Cal. 4th at 780. Robbins also describes California’s

practice of disposing of habeas petitions by summary order

with citation to certain seminal cases. See id. at 814 n.34. We

therefore conclude that the California Supreme Court’s citation to Robbins was a clear ruling that Thorson’s petition was

untimely. See Evans v. Chavis, 126 S. Ct. 846, 858 (2006)

(Stevens, J., concurring) (“The decision that a petition has

been untimely filed need not be explicitly stated; citation to

a case in which a petition was dismissed as untimely filed certainly would suffice.”) (citing Robbins, 18 Cal. 4th at 814 n.

34)); Amesquita v. Hickman, 2006 WL 2849821, at *6 (E.D.

Cal. 2006); Graves v. Carey, 2006 WL 2329429, at *6 n. 10

(N.D. Cal. 2006) (“[T]he only plausible reading of the California Supreme Court’s citation to Robbins is that the petition

was denied for untimeliness.”). 

[4] It is not clear from the order denying Thorson’s third

post-conviction petition just which filing delay the California

Supreme Court deemed untimely. Thorson filed his third petition, in the California Supreme Court, only twenty-one days

after the denial of his second petition by the California Court

of Appeal. We agree with the district court that it is most

likely that the period deemed excessive by the California

Supreme Court was the thirteen-month-plus period between

the denial of his first petition in Superior Court and the filing

of his second petition in the Court of Appeal. If that is the

case, then Thorson’s federal one-year limitation clearly

expired because he would not be entitled to tolling during the

thirteen-month period or thereafter; his petition to the Court

of Appeal at the end of that time would have been held by the

California Supreme Court to be untimely, and it therefore was

not “properly filed.” 

[5] We need not be concerned by any ambiguity in the California Supreme Court’s order, however, because it cannot

1900 THORSON v. PALMER
affect our conclusion. Even if the California Supreme Court

was referring only to the delay (doubtless evaluated in the

light of earlier delays) during the twenty-one days between

denial of the second petition in the California Court of Appeal

and Thorson’s filing of his third petition in the Supreme

Court, Thorson has exceeded his federal limitation period.

First, he waited 113 days between the date his conviction

became final and the filing of his first petition in Superior

Court. That time is not subject to tolling. See Nino v. Galaza,

183 F.3d 1003, 1006 (9th Cir. 1999) (“AEDPA’s statute of

limitations is not tolled from the time a final decision is issued

on direct appeal and the time the first collateral challenge is

filed . . . .”). Second, even if the California Supreme Court

ruling of untimeliness applied only to the 21-day delay in filing the petition in the Supreme Court itself, then Thorson’s

petition was not “properly filed” in the California Supreme

Court. As a result, the AEDPA clock would have begun to run

again on the date the California Court of Appeal denied Thorson’s second petition and would not have stopped until he

filed his federal habeas petition. See Bonner, 425 F.3d at 1149

(“Under Pace, if a state court denies a petition as untimely,

none of the time before or during the court’s consideration of

that petition is statutorily tolled.”). The length of time from

the date of denial by the Court of Appeal (March 2, 2001)

until the filing of Thorson’s federal petition (January 31,

2002) was 335 days. When the 113 days preceding the filing

of his first state petition is added to that number, his untolled

time ran for at least 448 days, substantially exceeding the oneyear limitation of § 2244. 

The district court thus properly held that Thorson’s federal

petition was statutorily time-barred. The judgment of the district court is 

AFFIRMED.

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