Opinion · Court of Appeals for the Ninth Circuit

Samuel Quinton Bonner v. Tom Carey, Warden

Samuel Quinton Bonner v. Tom Carey, Warden, 439 F.3d 993 (9th Cir. 2006)

Type
Opinion
Court
Court of Appeals for the Ninth Circuit
Jurisdiction
Federal
Date
2006-03-07
Topic
estate-planning

holding that a state application for post-conviction 11 relief which is ultimately dismissed as untimely was neither “properly filed” nor “pending” 12 while it was under consideration by the state court, and therefore does not statutorily toll 13 the statute of limitations | when it “is untimely under state law, ‘that [is] the end of the matter’ for purposes of § 2244(d)(2)” | “Because the California courts dismissed Bonner's petition as untimely, his 23 petition was not “properly filed” under AEDPA. Accordingly, he is not entitled to 24 tolling under § 2244(d)(2).” | “Neither does the fact that the superior court also denied Bonner’s petition on the 9 merits save his petition. Because the California courts dismissed Bonner’s petition as untimely, his 10 petition was not ‘properly filed’ under AEDPA.”

Citator

Cited by
44 opinions
BONNER v. CAREY,439 F.3d 993(9th Cir. 2005)
Samuel Quinton BONNER, Petitioner-Appellant, v. Tom CAREY, Warden,
Respondent-Appellee.
No. 02-56022.
United States Court of Appeals, Ninth Circuit.
Submitted August 7, 2003.fn*
Submission Deferred March 8, 2004.
Resubmitted October 6, 2005.
Filed October 6, 2005.
Amended March 7, 2006.
Jerry D. Whatley, Santa Barbara, CA, for the appellant.

Theresa A. Cochrane, Deputy Attorney General, Los Angeles, CA, for the appellee.
Appeal from the United States District Court for the Central District of California; David O. Carter, District Judge, Presiding. D.C. No. CV-99-00091-DOC(MAN).
Before ALEX KOZINSKI and THOMAS G. NELSON, Circuit Judges, and JANE A. RESTANI,fn**Chief IT Judge.
ORDER
The opinion filed October 6, 2005, and published at425 F.3d 1145(9th Cir. 2005), is amended as follows:425 F.3d at 1147, fn 6: Delete in its entirety and replace with the following:Page 994
The superior court ultimately denied Bonner's 1995 petition in May 1997. The denial contained no reasoning, and gave no explanation for the court's late action. We thus look through the May 1997 denial to the February 1997 denial, and presume the two petitions were denied for the same reasons.See Ylstv. Nunnemaker,501 U.S. 797,803,111 S.Ct. 2590,115 L.Ed.2d 706(1991).


With the opinion thus amended, the panel has voted unanimously to deny the petition for rehearing. Judge Kozinski has voted to deny the petition for rehearing en banc, and Judges T.G. Nelson and Restani recommended denial.

The full court has been advised of the petition for rehearing en banc and no active judge has requested a vote on whether to rehear the matter en banc. Fed.R.App.P.35.

The petition for rehearing is DENIED and the petition for rehearing en banc is DENIED.

No subsequent petitions for rehearing or petitions for rehearing en banc may be filed.
  1. This panel unanimously finds this case suitable for decision without oral argument.SeeFed.R.App.P.34(a)(2). ↩
  2. The Honorable Jane A. Restani, Chief Judge, United States Court of International Trade, sitting by designation. ↩