Enrique Trigueros v. Derral Adam

Filing

FILED OPINION (DOROTHY W. NELSON, JAY S. BYBEE and MILAN D. SMITH, JR.) Trigueros asks us to take judicial notice of documents from his state-court habeas petition, including his petition to the Superior Court, the California Supreme Court s letter to the State requesting informal briefing, the briefing the parties submitted to the California Supreme Court, and the California courts orders. The State argues that the motion for judicial notice should be denied because Trigueros, representing himself pro se, failed to lodge the state-court record with the district court, and in any event, the documents are irrelevant. We grant Trigueros s motion. REVERSED AND REMANDED. Judge: MDS Authoring. FILED AND ENTERED JUDGMENT. [7892834]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ENRIQUE TRIGUEROS,
Petitioner-Appellant,
v.
DERRAL G. ADAMS,
Respondent-Appellee.

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
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No. 08-56484
D.C. No.
2:07-cv-04335ABC-FFM
OPINION

Appeal from the United States District Court
for the Central District of California
Audrey B. Collins, Chief District Judge, Presiding
Argued and Submitted
April 11, 2011—Pasadena, California
Filed September 14, 2011
Before: Dorothy W. Nelson, Jay S. Bybee, and
Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Milan D. Smith, Jr.

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TRIGUEROS v. ADAMS

COUNSEL
Lauren E. Eskenazi, Los Angeles, California, for petitioner
Enrique Trigueros.
Richard S. Moskowitz, Deputy Attorney General, Los Angeles, California, for respondent Derral G. Adams, Warden.

OPINION
M. SMITH, Circuit Judge:
Petitioner-Appellant Enrique Trigueros appeals the district
court’s dismissal of his habeas petition as untimely, and not
subject to statutory tolling. Trigueros’s petition challenges his
jury conviction in California state court for murder and
attempted murder, for which he was sentenced to multiple
consecutive terms of twenty-five years to life, and life. He
filed his habeas petition in the California Superior Court in
October 2005, approximately two-and-a-half years after his
claims of ineffective assistance of counsel at trial were known
to him and approximately eleven months after his conviction
became final. The Superior Court determined that his petition
was untimely, and the Court of Appeal summarily denied his
petition on review. On review, the California Supreme Court
requested informal briefing and subsequently denied
Trigueros’s petition. The federal district court, concluding
that the last reasoned decision was that of the Superior Court,
ruled that Trigueros’s federal petition, filed in July 2007, was
not statutorily tolled, and therefore was untimely under the
Antiterrorism and Effective Death Penalty Act of 1996’s
(AEDPA) one-year statute of limitations. We reverse and

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remand, holding that the California Supreme Court’s request
for informal briefing from the State of California (State) on
Trigueros’s habeas petition led to the California Supreme
Court making a finding of timeliness, and deciding
Trigueros’s habeas petition on the merits.
FACTS AND PRIOR PROCEEDINGS
On December 13, 2002, a California jury convicted
Trigueros and a co-defendant of murdering Humberto Hernandez, and of the attempted willful, deliberate, and premeditated murders of three others. The trial court sentenced
Trigueros to fifty years to life for murder, and a life sentence
with the possibility of parole for each of the three attempted
murder convictions.
Trigueros gave timely notice of the direct appeal of his conviction on April 2, 2003, arguing ineffective assistance of
counsel because trial counsel allegedly did not appropriately
object to or retain an expert to dispute dog-scent evidence.
The Court of Appeal affirmed the trial court’s judgment, and
on August 8, 2004, the California Supreme Court denied
Trigueros’s petition for review. Trigueros did not appeal to
the United States Supreme Court.
On October 18, 2005, Trigueros filed a habeas petition in
the Los Angeles County Superior Court. The Superior Court
denied the petition on November 29, 2005. In relevant part,
the court stated: “Petition[er] fails to justify a delay of 2½
years between his conviction and the filing of the petition for
habeas corpus. (In re Clark (1993) 5 Cal. 4th 750, 765 &
fn5).” The court’s order also addressed and denied
Trigueros’s petition on the merits.
Trigueros filed a habeas petition with the Court of Appeal
on February 2, 2006. On February 21, 2006, the Court of
Appeal handed down a brief order stating: “The petition for
writ of habeas corpus is denied.” On April 21, 2006,

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Trigueros filed his habeas petition with the California
Supreme Court. On January 8, 2007, the California Supreme
Court requested “an informal response on the merits” from
the State. The State filed an informal response, arguing in part
that Trigueros’s claims were procedurally barred on timeliness grounds. On June 13, 2007, the California Supreme
Court denied Trigueros’s petition, stating: “The petition for
writ of habeas corpus is denied.”
On July 3, 2007, Trigueros, proceeding pro se, filed a federal habeas petition in the Central District of California. The
government moved to dismiss the petition as untimely, and
Trigueros filed a “traverse” in response. On August 5, 2008,
the district court adopted the Magistrate Judge’s Report and
Recommendation, finding that Trigueros failed to satisfy
AEDPA’s one-year statute of limitations because the Superior
Court had denied his October 2005 habeas petition as
untimely under Clark. The Magistrate Judge found that the
2005 petition was improperly filed in California state court,
and did not statutorily toll AEDPA’s one-year statute of limitations, which expired on November 16, 2005. Trigueros
timely appeals the district court’s denial of his habeas petition.
JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction under 28 U.S.C. § 1294(1). We
review de novo a district court’s dismissal of a habeas petition
on timeliness grounds. White v. Martel, 601 F.3d 882, 883
(9th Cir.), cert denied 131 S. Ct. 332 (2010).
DISCUSSION
1.

Motion for Judicial Notice

Trigueros asks us to take judicial notice of documents from
his state-court habeas petition, including his petition to the
Superior Court, the California Supreme Court’s letter to the

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State requesting informal briefing, the briefing the parties
submitted to the California Supreme Court, and the California
courts’ orders. The State argues that the motion for judicial
notice should be denied because Trigueros, representing himself pro se, failed to lodge the state-court record with the district court, and in any event, the documents are irrelevant. We
grant Trigueros’s motion.1
[1] Generally, we consider only the district court record as
developed before appeal. Lowry v. Barnhart, 329 F.3d 1019,
1024 (9th Cir. 2003). Nonetheless, we may take judicial
notice on appeal. Fed. R. Evid. 201(f) (“Judicial notice may
be taken at any stage of the proceeding.”); see also United
States v. Camp, 723 F.2d 741, 744 n.** (9th Cir. 1984). We
retain discretion to take judicial notice of documents “not subject to reasonable dispute.” Fed. R. Evid. 201(b). In particular,
we “may take notice of proceedings in other courts, both
within and without the federal judicial system, if those proceedings have a direct relation to matters at issue.” United
States ex rel. Robinson Rancheria Citizens Council v. Borneo,
Inc., 971 F.2d 244, 248 (9th Cir. 1992); see also Smith v.
Duncan, 297 F.3d 809, 815 (9th Cir. 2002) (taking judicial
notice of the “relevant state court documents, because those
documents have a direct relationship to [petitioner’s habeas]
appeal”), abrogation on other grounds recognized by Moreno
v. Harrison, 245 Fed. Appx. 606 (9th Cir. 2007).
[2] Here, Trigueros submitted documents on appeal from
the proceedings before the California courts that are “directly
related” to the timeliness of his state habeas petitions. The
Superior Court stated that Trigueros’s petition was untimely,
and the Court of Appeal denied his subsequent petition. Then,
prior to denying Trigueros’s petition, the California Supreme
1

We note that the Superior Court’s and California Supreme Court’s
orders were submitted to the district court as part of the State’s motion to
dismiss. These documents are appropriately designated excerpts of record.
Fed. R. App. P. 10(a); Ninth Cir. R. 10-2(b).

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Court requested briefing from the State on the merits of his
petition, and the State briefed the timing issue, to which
Trigueros replied in his briefing. In short, Trigueros seeks
judicial notice of documents directly related to the timeliness
of his habeas filings. Accordingly, we take judicial notice of
these documents in determining whether Trigueros’s federal
habeas petition was statutorily tolled.
II.
A.

Statutory Tolling
Waiver

The State first argues that Trigueros waived his statutory
tolling argument. Specifically, it contends that Trigueros did
not raise his current theory of statutory tolling—that the California Supreme Court overruled the Superior Court’s finding
of untimeliness—before the district court. We disagree with
the State’s reading of the record, and conclude that Trigueros
has sufficiently argued that his federal habeas petition was
timely filed due to statutory tolling of AEDPA’s one-year
statute of limitations.
Ordinarily, arguments not raised before the district court
are waived on appeal. White, 601 F.3d at 885. However, even
if the petitioner did not present a statutory tolling argument to
the district court, the petitioner may raise it on appeal under
certain limited circumstances. See Lott v. Mueller, 304 F.3d
918, 925 (9th Cir. 2002) (holding that the petitioner could
raise a statutory tolling argument for the first time on appeal
because it was based on the same set of operative facts as his
equitable tolling argument). In particular, if “the issue presented is purely one of law and the opposing party will suffer
no prejudice as a result of the failure to raise the issue in the
trial court,” the petitioner may raise it for the first time on
appeal. Id. (internal quotation marks omitted).
Here, Trigueros represented himself pro se when he filed
his response to the government’s timeliness challenge before

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the district court. “Prisoner pro se pleadings are given the
benefit of liberal construction.” Porter v. Ollison 620 F.3d
952, 958 (9th Cir. 2010). In his self-styled “traverse,”
Trigueros argued before the district court that he had timely
filed his petitions with the California courts, and that his federal petition was therefore timely tolled. He also argued the
merits of the Superior Court’s ruling on untimeliness. While
he does not address the precise legal theory before us, the
same set of operative facts are in play here, and he specifically contended before the district court that he was entitled
to statutory tolling.
[3] Moreover, Trigueros’s argument on appeal—that the
California Supreme Court’s order overruled the Superior
Court’s timeliness ruling—is primarily a question of law
because the issue is the legal effect of the Supreme Court’s
order on the Superior Court’s finding of untimeliness. There
is also no showing that the State, which is well versed in the
legal doctrines present in this appeal, will be prejudiced if we
hear the claim. Accordingly, Trigueros’s argument on appeal
is not waived because he sufficiently raised the statutory tolling argument before the district court, and because this is primarily a legal issue, consideration of which does not prejudice
the State.
B.

The Effect of the California Supreme Court’s
Request for Informal Briefing

[4] AEDPA has a one-year statute of limitations for the filing of habeas petitions. 28 U.S.C. § 2244(d)(1). AEDPA’s
statute of limitations is tolled during the time in which a
“properly filed” state habeas petition is pending. 28 U.S.C.
§ 2244(d)(2). A state habeas petition is “pending” as long as
the ordinary state collateral review process continues. See
Carey v. Saffold, 536 U.S. 214, 219-20 (2002). Accordingly,
a “pending” petition generally includes the time “between a
lower court decision and a filing of a new petition in a higher
court.” Id. at 223.

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[5] An untimely state petition is not “properly filed” and
does not trigger statutory tolling under AEDPA. See Pace v.
DiGuglielmo, 544 U.S. 408, 417 (2005). The United States
Supreme Court has clarified that “[w]hen a postconviction
[habeas] petition is untimely under state law, that is the end
of the matter for purposes of § 2244(d)(2).” Id. at 414 (internal quotation marks omitted) (alteration omitted). Applying
this rule, we have held that statutory tolling under
§ 2244(d)(2) is unavailable where a state habeas petition is
deemed untimely under California’s timeliness standards. See
Bonner v. Carey, 425 F.3d 1145, 1149 (9th Cir. 2005), as
amended 439 F.3d 993 (9th Cir. 2006).
The issue in this case is whether Trigueros’s petition filed
with the Superior Court in October 2005 was determined to
be timely by the California Supreme Court. We conclude that
the California Supreme Court decided that Trigueros’s 2005
petition was timely, thereby triggering statutory tolling of
AEDPA’s one-year statute of limitations.
California courts “appl[y] a general ‘reasonableness’ standard” when determining whether a habeas petition is timely
filed in state court. Saffold, 536 U.S. at 222. Under California’s standard, “a [habeas] petition should be filed as
promptly as the circumstances allow.” In re Clark, 855 P.2d
729, 738 n. 5 (Cal. 1993). This means that a prisoner must
seek habeas relief without “substantial delay.” In re Robbins,
959 P.2d 311, 317 (Cal. 1998). In noncapital cases, “to avoid
the bar of untimeliness with respect to each claim, the petitioner has the burden of establishing (i) absence of substantial
delay, (ii) good cause for the delay, or (iii) that the claim falls
within an exception to the bar of untimeliness.” Id. (emphasis
omitted).
[6] The timeliness of a petition is “measured from the time
the petitioner or his or her counsel knew, or reasonably should
have known, of the information offered in support of the
claim and the legal basis for the claim.” Id. Because the delay

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is measured from when the petitioner knew of the grounds for
relief, “[t]hat time may be as early as the date of conviction.”
Clark, 855 P.2d at 738 n.5.
[7] The Superior Court found Trigueros’s 2005 petition
untimely because it was filed approximately two-and-one-half
years after he could have discovered that his counsel was
allegedly ineffective at trial. Trigueros argues, nonetheless,
that the California Supreme Court’s order denying his motion
impliedly overruled the Superior Court’s finding of untimeliness. Trigueros relies on Robbins for this proposition. In that
case, the California Supreme Court explained:
[W]hen respondent asserts that a particular claim or
subclaim should be barred . . . [because it] is
untimely, and when, nevertheless, our order disposing of a habeas corpus petition does not impose the
proposed bar or bars as to that claim or subclaim,
this signifies that we have considered respondent’s
assertion and have determined that the claim or subclaim is not barred on the cited ground or grounds.
Robbins, 959 P.2d at 340 n.34. Trigueros contends that Robbins means that the California Supreme Court determined that
his petition was timely, having decided and denied his petition
on the merits, and because the order did not cite to a California case for the proposition that it was time barred. We agree.
We are mindful that the United States Supreme Court,
without directly citing Robbins, has instructed us that we are
not to presume that a California state court’s denial on the
merits means that a petition was timely. Evans v. Chavis, 546
U.S. 189, 194 (2006). The Court has recognized that California may “pretermit the question whether a petition is timely
and simply deny the petition, thereby signaling that the petition lacks merit.” Walker v. Martin, 131 S. Ct. 1120, 1124
(2011). It explained that

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the Ninth Circuit must not take “such words” (i.e.,
the words “on the merits”) as “an absolute bellwether” on the timeliness question. We pointed out that
the Circuit’s contrary approach (i.e., an approach
that presumed that an order denying a petition “on
the merits” meant that the petition was timely) would
lead to the tolling of AEDPA’s limitations period in
circumstances where the law does not permit tolling.
Evans, 546 U.S. at 194-95 (citations omitted) (emphasis omitted); see also Walker, 131 S. Ct. at 1124 (explaining that “A
[California] spare order denying a petition without explanation or citation ordinarily ranks as a disposition on the merits”). This means that a petition decided on the merits by the
California Supreme Court “does not automatically indicate
that the petition was timely filed.” Evans, 546 U.S. at 197.
Furthermore, the United States Supreme Court concluded that
where a California Supreme Court order simply states, “Petition for writ of habeas corpus . . . is DENIED,” and does not
contain the words “on the merits,” it is even less likely the
California Supreme Court had considered the petition timely
on the merits. Id. at 195, 197; cf. id. at 207-11 (Stevens, J.,
concurring in the judgment) (disagreeing that prior precedent
rejected the presumption and advocating that a presumption
be adopted as permitted by Robbins, but also recognizing that
“a silent order provides no evidence that the state court considered and passed upon the timeliness issue”).
[8] Accordingly, with the United States Supreme Court’s
instructions in mind, we do not presume that the California
Supreme Court’s order summarily denying Trigueros’s petition automatically means that the Court considered and found
Trigueros’s petition timely. There are, however, compelling
factual circumstances in this case signaling that the California
Supreme Court did consider and reject the State’s timeliness
argument. Specifically, the California Supreme Court
requested informal briefing on the merits, even though the
Superior Court made a finding of untimeliness and the Court

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of Appeal summarily denied the petition. We find this highly
significant. Additionally, the State briefed the timing issue
and Trigueros responded. The California Supreme Court thus
had before it all of the timeliness arguments from the parties.
Given these factual circumstances, we rely on the California
Supreme Court’s orders practice explained in Robbins and
conclude that it considered Trigueros’s petition timely
because the California Supreme Court had the timeliness
question before it, and did not cite to cases involving a timeliness procedural bar. See Robbins, 959 P.2d at 340 n.34.
We further conclude that these factual circumstances are
distinguishable from those in Bonner v. Carey, 425 F.3d
1145. In Bonner, we considered a situation in which the Superior Court found a habeas petition untimely, and subsequently
the California Supreme Court issued a summary denial of the
habeas petition. We concluded in Bonner that we were
required to “determine what the superior court’s order mean[t]
because that was the last—and only—reasoned decision as to
[the] petition,” as the Court of Appeal and California Supreme
Court had both summarily denied the petition without citation
to any authority. Id. at 1148 n.13. (citing Ylst v. Nunnemaker,
501 U.S. 797, 803 (1991)). Because the Superior Court’s
order relied on untimeliness in its decision, we held that the
state petition was not timely filed and the petitioner was not
entitled to statutory tolling. Trigueros’s case is distinguishable
from Bonner in one very important respect: here, the California Supreme Court requested briefing on the merits from the
State in response to Trigueros’s habeas petition. We conclude
from this significant fact that the California Supreme Court
did not find a timeliness procedural bar, and decided
Trigueros’s petition on the merits.
Interestingly, the State does not dispute the claim that the
California Supreme Court considered Trigueros’s petition
timely. Rather, it argues that under California’s writ system,
each petition is judged on its own timeliness. Specifically,
under California’s unique habeas review system, a state pris-

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oner must file an original petition for writ of habeas corpus
with each reviewing court within a reasonable period of time
rather than meeting set times for filing a notice of appeal. See
Safford, 536 U.S. at 221-22. Thus, according to the State, a
petition could be untimely filed with the Superior Court, and
yet the next original petition filed with the California
Supreme Court may be timely, without the California
Supreme Court ever ruling on the timeliness of the Superior
Court petition. The State’s position is inconsistent with
United States Supreme Court precedent and the law of this
circuit.
The United States Supreme Court has concluded that while
California has an “original writ” system, in practical terms it
is “analogous to appellate review systems in other States.”
Chavis, 546 U.S. at 192-93; Safford, 536 U.S. at 222-23.
Thus, typically a petitioner will file a petition with the Superior Court and then will file an original petition on the same
issue, seeking the equivalent of appellate review of the trial
or court of appeals decision. Safford, 536 U.S. at 222. If the
delay between filings is reasonable, the petition is “pending”
for purposes of tolling AEDPA’s statute of limitations during
this period. Id. at 225-26. Consistent with the United States
Supreme Court’s understanding of California’s writ system,
we have held that the Court of Appeal’s determination that a
petitioner’s claim was timely, contrary to the Superior Court’s
ruling of untimeliness, meant that the petition was timely
before the lower court. See Campbell v. Henry, 614 F.3d
1056, 1060-61 (9th Cir. 2010).
[9] Accordingly, we find that Trigueros’s October 2005
petition filed with the Superior Court was deemed timely on
review by the California Supreme Court. As the 2005 petition
was timely filed, and the reasonableness of Trigueros’s subsequent filings on appeal are not in dispute, his petition has been
pending for the duration of state court review, and was statutorily tolled for purposes of AEDPA review.

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CONCLUSION
[10] For the foregoing reasons, we find that the California
Supreme Court found Trigueros’s 2005 habeas petition
timely. Since Trigueros then timely filed in federal district
court on July 3, 2007, less than a month after the California
Supreme Court denied his petition on June 13, 2007, his federal petition was timely filed. We therefore reverse the district
court’s dismissal of the petition and remand for further proceedings consistent with this opinion.
REVERSED AND REMANDED.