Cross v. Sisto

A federal habeas corpus claim should not be found untimely when it is properly filed under California law and statutory tolling is correctly applied.

Terrell Cross ("Cross") was convicted of second-degree murder and sentenced to 54 years to life in prison. Cross appealed to the California Court of Appeal and the California Supreme Court, both appeals were denied. Cross filed two rounds of unsuccessful petitions for habeas corpus with the Alameda County Superior Court, California Court of Appeal, and California Supreme Court. Cross filed a petition for habeas corpus with the district court and it was denied on the ground that it was untimely and was therefore not considered “properly filed” for the purposes of statutory tolling. The district court misapplied California law when it determined whether the petition had been properly filed. A citation to Swain should not be viewed as an “automatic untimeliness bar” but as a grant of a demurrer, which makes a habeas corpus petition procedurally deficient but properly filed under California law. Thus Cross’s first round habeas corpus petition to California Supreme Court was properly filed and the statute of limitations was tolled while it was pending. Cross’s habeas petition to the federal district court is timely when statutory tolling is correctly applied. Cross’s habeas petition was entitled to statutory tolling for each separate round of state petitions because he filed his federal petition within the one year statute of limitations, excluding the tolled time. Statutory tolling also applied during the time between filings as Cross filed petitions in a higher court because of the tolling Cross’s federal habeas petition was timely the district court wrongly denied it. VACATED and REMANDED.