For the second time this month and the fifth time since February, the Ninth Circuit is today asking the California Supreme Court to answer a question of state law.  We’ve speculated that the federal appeals court might be getting too inquisitive for the Supreme Court, but this latest request is particularly insistent, especially because the Supreme Court turned down a similar request less than seven years ago.

Stating that the issue is “of exceptional importance to both federal and California courts,” the Ninth Circuit in Robinson v. Lewis asks the Supreme Court to decide:  “When a state habeas petitioner has no good cause for delay, at what point in time is that state prisoner’s petition, filed in a California court of review to challenge a lower state court’s disposition of the prisoner’s claims, untimely under California law; specifically, is a habeas petition untimely filed after an unexplained 66-day delay between the time a California trial court denies the petition and the time the petition is filed in the California Court of Appeal?”  The Ninth Circuit claims the question is significant for determining whether and how long the one-year limitations period for seeking federal habeas review has been tolled during state proceedings.

The Ninth Circuit says it asked the same question in Chaffer v. Prosper (9th Cir. 2008) 542 F.3d 662, at the suggestion of the United States Supreme Court no less (Evans v. Chavis (2006) 546 U.S. 189, 199).  Yet, the state Supreme Court declined to answer in Chaffer, stating, “a decision by this court is unlikely to be determinative in the federal proceedings and there is controlling precedent on the question of timeliness.”

Today, the Ninth Circuit persists.  It “recognize[s] that our certification request adds to the substantial caseload of the Court,” but, it says, “[w]e have now had seven more years’ experience applying California’s ‘reasonable time’ standard and we remain uncertain about the scope of California’s rule.”  The Ninth Circuit also claims that “[t]he question of what constitutes filing within a reasonable time under California law has arisen in over 500 district court cases in this circuit since Chavis was decided, and in over 250 since the California Supreme Court last denied our request for certification of this question in Chaffer.”

The Ninth Circuit should know by the end of September, give or take, whether the second time asking is the charm.

[July 30 Update:  The Supreme Court docketed the case yesterday.]