The Court of Appeals also denied Kim's petition. On or about December 27, 1983, Kim filed his first petition for a writ of habeas corpus with the Supreme Court of California. Kim's petition presented fifteen grounds for habeas relief. The California Supreme Court summarily denied Kim's petition, citing In re Yurko, 10 Cal.3d 857, 866-67, 112 Cal.Rptr. 513, 519, 519 P.2d 561, 567 (1974), In re Swain, 34 Cal.2d 300, 304, 209 P.2d 793, 796 (1949), In re Lindley, 29 Cal.2d 709, 723, 177 P.2d 918, 928 (1947), and Cal. Rules of Court, rule 45(e). On April 24, 1984, Kim filed his first federal petition for a writ of habeas corpus with the district court.
The district court therefore denied Cross's federal petition on the ground that it was barred by the one-year statute of limitations under 28 U.S.C. § 2244(d)(1)(A), which tolls the statute of limitations during the pendency of a state court petition, but only if that state petition is properly and timely filed. This case requires us to determine whether, when the California Supreme Court denies a habeas petition with citations to Ex parte Swain, 34 Cal.2d 300, 209 P.2d 793, 796 (1949), and People v. Duvall, 9 Cal.4th 464, 37 Cal.Rptr.2d 259, 886 P.2d 1252, 1258 (1995), the denial is necessarily based on untimeliness. We agree with Cross that the answer is no and that the district court did not correctly apply California law in determining that the California Supreme Court's denial of Cross's petition with citation to Swain and Duvall meant that Cross's petition before the California Supreme Court was untimely.
An application for state habeas relief in California must "allege with particularity the facts upon which [the petitioner] would have a final judgment overturned." In re Swain, 34 Cal.2d 300, 209 P.2d 793, 796 (1949); see id. ("vague, conclusionary allegations . . . are insufficient to warrant issuance of the writ. . . ."); People v. Duvall, 9 Cal.4th 464, 37 Cal.Rptr.2d 259, 886 P.2d 1252, 1258 (1995) (an application for habeas corpus should "state fully and with particularity the facts on which relief is sought") (citing, inter alia, Swain, 209 P.2d at 796). An application for state habeas relief "should be filed as promptly as the circumstances of the case allow," In re Stankewitz, 40 Cal.3d 391, 220 Cal.Rptr. 382, 708 P.2d 1260, 1262 n. 1 (1986), and any "significant delay" must be explained and justified with particularity by the petitioner.
On February 18, 2010, the California Supreme Court dismissed Curiel's petition in a decision that reads in full: “The petition for writ of habeas corpus is denied. (See In re Swain (1949) 34 Cal.2d 300, 304, 209 P.2d 793 ; People v. Duvall (1995) 9 Cal.4th 464, 474, 37 Cal.Rptr.2d 259, 886 P.2d 1252.).”
King's first petition to the California Supreme Court was denied without prejudice with citations to two cases that require that one must allege with sufficient particularity the facts warranting habeas relief and allow amendment to comply. See In re Swain, 34 Cal.2d 300, 304, 209 P.2d 793 (1949), People v. Duvall, 9 Cal.4th 464, 474, 37 Cal.Rptr.2d 259, 886 P.2d 1252 (1995). To determine whether King is entitled to tolling of the period between the denial of this petition and the commencement of his next series of petitions, we apply a two-part test.
We did so, Chaffer v. Prosper, 542 F.3d 662 (9th Cir. 2008), but the court denied certification, Chaffer v. Prosper, No. S166400 (filed Mar. 11, 2009). Because Chaffer's filing delays were substantially longer than the "30 to 60 days" that "most States" allow for filing petitions, and Chaffer's petitions offered no justification for the delays as required under California law, In re Swain, 34 Cal.2d 300, 209 P.2d 793, 795-96 (1949), we fail to see how "unexplained delay[s] of this magnitude could fall within the scope of the federal statutory word `pending,'" Evans, 546 U.S. at 201, 126 S.Ct. 846 (emphasis added); see also Waldrip v. Hall, 548 F.3d 729, 734-35 (9th Cir. 2008). Chaffer is therefore not entitled to statutory tolling.
The Dixon rule bars California state courts from granting habeas relief to a prisoner who failed to pursue the claims raised in his habeas petition on direct appeal from his conviction, unless his claims fall within an exception to the rule.Ex parte Swain, 34 Cal.2d 300, 209 P.2d 793, 795 (1949).Ex parte Dixon, 41 Cal.2d 756, 264 P.2d 513, 515 (1953).
Therein petitioner claimed as follows: his trial counsel was ineffective; his requests to have his attorney removed were erroneously denied; he was improperly forced to give up hisFaretta rights; and he was erroneously declared incompetent without a competency examination or a hearing. (Id., Ex. I at 3-4.) On July 30, 2003, the California Supreme Court denied the petition citing In re Swain, 34 Cal. 2d 300, 304 (1949),People v. Duvall, 9 Cal. 4th 464, 474 (1995), and In re Dixon, 41 Cal. 2d 756 (1953). (Id., Ex. J, at 1.)
In both cases the essence of the charge is that petitioner has been deprived of his liberty by reason of a deliberate deception of court and jury, and it is incumbent on him to show that there was a material deception and that there was knowledge thereof on the part of the prosecuting officers. (See In re Swain, 34 Cal.2d 300, 302 [ 209 P.2d 793]; In re Manchester, 33 Cal.2d 740, 742 [ 204 P.2d 881]; In re Lindley, 29 Cal.2d 709, 722-724 [ 177 P.2d 918]; In re Mooney, 10 Cal.2d 1, 15 [ 73 P.2d 554].) As stated in the Manchester case, supra (33 Cal.2d at p. 742), "The relief sought may not be accorded unless the petitioner has sufficiently alleged facts in support of his position. . . . The facts alleged must also indicate that the petitioner had no opportunity to present the alleged true matter on the trial; that is, that there was such suppression of truth by the authorities as prevented his discovery and use thereof at the trial.
An application for state habeas relief in California must "allege with particularity the facts upon which[the petitioner] would have a final judgment overturned." In re Swain, 34 Cal.2d 300, 304, 209 P.2d 793, 796 (1949); see id. ("vague, conclusionary allegations . . . are insufficient to warrant issuance of the writ. . . ."); People v. Duvall, 9 Cal.4th 464, 474, 37 Cal.Rptr.2d 259, 265, 886 P.2d 1252, 1258 (1995) (an application for habeas corpus should "state fully and with particularity the facts on which relief is sought") (citing, inter alia, Swain, 34 Cal.2d at 303, 209 P.2d at 796). An application for state habeas relief "should be filed as promptly as the circumstances of the case allow," In re Stankewitz, 40 Cal.3d 391, 396 n. 1, 220 Cal.Rptr. 382, 384 n. 1, 708 P.2d 1260, 1262 n. 1 (1986), and any "significant delay" must be explained and justified with particularity by the petitioner.