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Name: Waldrip v. Hall
Case #: 07-55512
Court: US Court of Appeals
District 9 Cir
Opinion Date: 11/18/2008

A petitioner’s state court post-conviction review proceeding is not “pending” under 28 U.S.C. § 2244(d)(2) during the eight months between denial of a state habeas petition by a California state court and the filing of a new petition in a higher California state court, which was subsequently denied without comment as to whether it was timely filed, as the gap of over six months was too long and unjustified. Petitioner was convicted of felon in possession of a firearm and sentenced to twenty five years to life under California’s “Three Strikes” law. The appellate court affirmed the conviction in October 2001. Petitioner did not file for review but then filed a habeas petition claiming ineffective assistance of trial counsel, which the appellate court denied in a reasoned decision in November 2001. Petitioner then filed a pro se habeas petition in the superior court, again claiming IAC of trial counsel and that the three-strikes sentence violated the Eighth Amendment. The petition was denied in March 2002. A third petition was filed in the California Supreme Court in December 2002, which alleged IAC of both trial and appellate counsel, and an Eighth Amendment violation. The petition was denied without comment on June 18, 2003, and on July 16, 2003, petitioner constructively filed a federal habeas petition. The federal district court granted the state’s motion to dismiss the petition as untimely. The appellate court affirmed, holding that the one-year federal limitations period was not tolled during the six months between the denial of habeas relief by the California state court and the filing of a subsequent petition in a higher court because the gap was too long and unjustified.