The Ninth Circuit has been waiting for the California Supreme Court’s help in determining a question of state habeas corpus procedure for a long time. A really long time. Today, there is some light at the end of the tunnel.
In 2008, the federal appeals court asked the Supreme Court how to determine the timeliness of a state habeas petition (Chaffer v. Prosper (9th Cir. 2008) 542 F.3d 662), but the Supreme Court turned down the request. Ten months ago, in Robinson v. Lewis, the Ninth Circuit asked again, telling the state high court, we know you’re busy, but “we remain uncertain about the scope of California’s rule” and getting an answer is very important.
The Supreme Court did agree to answer the Ninth Circuit’s question in Robinson, but accepting the question took an unusually long time. Then, two days later, the court put the case on hold, deferring all briefing until it decides whether to restate the Ninth Circuit’s question. (Cal. Rules of Court, rule 8.548(f)(5).) That was over six months ago, and the Supreme Court has taken no action since. Until today, that is.
Today, the court restates the question and restarts the briefing schedule. The newly restated question that will be briefed is: “When a California court denies a claim in a petition for writ of habeas corpus, and the petitioner subsequently files the same or a similar claim in a petition for writ of habeas corpus directed to the original jurisdiction of a higher court, what is the significance, if any, of the period of time between the earlier petition’s denial and the subsequent petition’s filing (66 days in this case) for the purpose of determining the subsequent claim’s timeliness under California law?”
