Results matching “equitable tolling”

The current argument session of the U.S. Supreme Court is pretty thin on criminal law.  There is one federal case involving some narrow issues, Musacchio v. United States, No. 14-1095, argued Monday.

Supreme Court decisions in civil cases may affect criminal and habeas cases, though.  That is particularly true of habeas, which is technically a civil case.  Yesterday the high court heard argument in a case involving equitable tolling of statutes of limitation, and the main precedent being discussed was Holland v. Florida, 560 U.S. 631 (2010), a capital habeas case (and one of my losses).

Habeas practitioners may want to keep an eye out for the decision in Menominee Tribe of Wis. v. United States, No. 14-510.  Perhaps it will shed some light on "extraordinary circumstances."  SCOTUSblog's case page is here. Ronald Mann has this report on the oral argument and thinks it looks grim for the tribe (and, therefore, good for the government).

The U.S. Supreme Court decided two civil cases today.  United States v. Kwai Fun Wong, No. 13-1074 deals with equitable tolling, an issue that comes up regularly in habeas corpus cases.

Still no decision on the Facebook threats case, Elonis v. United States.  That case was argued in December, and it is the only case from that session not yet decided.  Playing the SCOTUS Sudoku game, we see from the SCOTUSblog statistics page that Chief Justice Roberts is the only one not to write a majority opinion yet from that session.  (The June case was decided together with Wong today, written by Justice Kagan.)  So it's a good bet that the Chief is writing Elonis.

Does that give us a clue how the case will be decided?  Not really.  He was probing both sides at oral argument.  In First Amendment cases generally he has been pretty much down the middle.  He has written opinions in favor of First Amendment claims in cases on funeral protests and crush videos, but he has also written opinions against such claims in cases on school speech and terrorism support.  That last one gives me some hope here.  We are dealing with speech that involves genuine danger of grave physical harm to a person.  That makes Holder v. Humanitarian Law Project and Elonis different from all the other cases.

Still, we will have to wait and see.  Maybe next week.

The US Supreme Court has announced its April oral argument calendar.  This is the last session for the term.  Here are the criminal and related cases:

Monday, April 20:  Johnson v. United States, No. 13-7120 will be reargued. The case deals with possession of a sawed-off shotgun as a "violent felony."  The case was argued Nov. 5, but on Jan. 9 the Court restored it to the calendar and asked for supplemental briefing on "Whether the residual clause in the Armed Career Criminal Act of 1984, 18 U. S. C. §924(e)(2)(B)(ii), is unconstitutionally vague."

Tuesday, April 21:  McFadden v. United States, No. 14-378, deals with controlled substance analogues and the defendant's knowledge.

Monday, April 27:  Kingsley v. Henderson, No. 14-6368, is a civil case on the use of allegedly excessive force against a pretrial detainee in jail.

Wednesday, April 29:  Glossip v. Gross, No. 14-7955, deals with Oklahoma's three-drug execution protocol using midazolam as the first drug.  A similar protocol is used in Florida.

Same day:  Mata v. Holder, No. 14-185 is an immigration case, but it deals with issues of equitable tolling and ineffective assistance that often come up in habeas corpus cases.

Bill noted yesterday how a hoax was printed as fact to bolster a position on the campus rape debate.  Before commenting on the story, let me make very clear that CJLF has a long history of supporting the rights of victims of rape.  It is a terrible crime, and the victims deserve justice.  We have further supported shield laws to protect victims from being revictimized.  Our commitment to victims' rights remains undiminished.  That said, however, the current movement regarding campus sexual assault is going to extremes that will do little to help actual victims, threatens grave consequences against people who have done nothing wrong, and may well end up hurting real victims as a backlash creates renewed skepticism of those who come forward.

Now, Rolling Stone never has been an exemplar of objective journalism, but reporting inflammatory allegations without the most elementary fact-checking is well below the standard we should expect of any national magazine.  An editorial in the Wall Street Journal today pinpoints the underlying problem here:

The larger problem, however, is that Ms. Erderly was, by her own admission, looking for a story to fit a pre-existing narrative--in this case, the supposed epidemic of sexual assault at elite universities, along with the presumed indifference of those schools to the problem. As the Washington Post noted in an admiring profile of Ms. Erdely, she interviewed students at several elite universities before alighting on UVA, "a public school, Southern and genteel."

In other words, Ms. Erdely did not construct a story based on facts, but went looking for facts to fit her theory. She appears to have been looking for a story to fit the current popular liberal belief that sexual assault is pervasive and pervasively covered-up.

On Monday, the Supreme Court hears arguments in McQuiggin v. Perkins, No. 12-126, on the question of whether a claim of actual innocence allows an exception to the federal habeas statute of limitations.

At SCOTUSblog, Jordan Steiker has an argument preview on the case.  Steiker is a hard-core anti-death-penalty true believer, so you have to take everything he says with a grain of salt.  (Perkins is not a capital case, but capital punishment always looms in the background of habeas cases.)

Today's lone Supreme Court decision, Sebelius v. Auburn Regional Medical Center, relates to Medicare and SSI funding.  However, the specific question is equitable tolling of a limitations period, an issue that comes up a lot in habeas corpus cases.  So I thought I would note it here for the benefit of anyone researching a tolling issue.

No more opinions are likely until the February argument calendar, after the Washington's Birthday holiday.

The Ninth Circuit today put some reasonable limits on the use of equitable tolling to extend the reach of its now-discredited precedent on late-filed federal habeas petitions.

State prisoners have one year to file their federal habeas petitions after their state direct appeals are denied, but the time is tolled during the pendency of any "properly filed" state-court collateral reviews.  Is a state collateral petition "properly filed" if it is untimely under state rules?  The Ninth said yes in Dictado v. Ducharme, 244 F.3d 724 (2001), effectively allowing every inmate to give himself extensions of time by filing untimely state petitions, extending his federal deadline by the length of time the state court takes to get around to dismissing.  The Supreme Court decided otherwise in Pace v. DiGuglielmo, 544 U.S. 408 (2005).

Do inmates get "equitable tolling" claiming they were relying on Dictado before its demise?  Up to a point. 

In the 1970s, the Supreme Court decided that states had to limit the death penalty to a defined subclass of murders. In Maynard v. Cartwright, the Court held that Oklahoma had defined an impermissibly vague subclass of murder as "especially heinous, atrocious, or cruel." Copying straight out of the Model Penal Code was no defense.

Today, the Supreme Court held in Holland v. Florida that equitable tolling will not operate to extend the statute of limitations on habeas petitions in cases of "a 'garden variety claim' of attorney negligence." (AP story here.) Equitable tolling only applies to a subset of attorney negligence. How is the subset defined? Applying Maynard to Holland, the Court fails its own test:

The Supreme Court decided today in Holland v. Florida that the habeas corpus statute of limitations in AEDPA is subject to "equitable tolling." Equitable tolling is supposed to apply only in extraordinary circumstances, but in the wrong hands it can amount to a de facto repeal of the statute of limitations. More on this later today.

Equitable Tolling in Holland v. Florida:  At SCOTUSblog, Harvard Law School student Kate Wever recaps Monday's oral argument in Holland v. Florida.  Wever reports that Holland's attorney, Todd Scher, used the facts of Holland's case to support his argument that Holland was entitled to equitable tolling.  When Justice Sotomayor questioned him on where to draw the line for future cases, and to distinguish between the negligence and "intentional malfeasance," Scher returned to the facts of Holland's case to demonstrate that his client was entitled to equitable tolling.  Florida's Solicitor General, Scott Makar, endured questioning by Justice Breyer on whether equitable tolling should be denied even when the missed deadline resulted from an earthquake, fire, flood, or counsel being kidnapped.  Although Makar initially maintained (consistent with Florida's brief) that it should be, by the end of his argument he appeared to concede that equitable tolling might be available in situations external to the attorney-client relationship.  CJLF's brief is available here. 

Washington Changes to One-Drug Execution Method:  Yesterday, Associated Press writer Rachel La Corte reported that Washington has become the second state to switch to a one-drug system for executing prisoners.  According to La Corte, Washington's Attorney General filed a motion with the state Supreme Court on Tuesday arguing that now that Washington has changed its protocol portions of the appeal of death-row inmate Darold Stenson, challenging of the drug protocol's constitutionality are now moot.  The state Department of Corrections is in the process of rewriting the execution policy that will make Washington the second state in the nation to use the one-drug method.  

Backlash Against Freeing Prisoners:  At Sentencing Law and Policy, Doug Berman links to a New York Times article by Monica Davey reporting on public backlash in the wake of state legislation trimming prison populations by expanding parole programs and early releases.  Davey reports that states like Colorado, Michigan and Oregon are reducing their prison populations to reduce prison spending.  She reports that Michigan, which reduced its state prison population by 3,200 inmates last year, is experiencing its highest parole rate in the past 16 years.  According to Davey, parole has become such a controversial issue in Michigan that Attorney General Mike Cox, who normally defends the State Department of Corrections and its Parole and Commutation Board in their parole decisions, has also filed separate amicus briefs in eight cases opposing some of the state's parole decisions.  Yesterday, Berman also posted a link to The Sentencing Project's reports demonstrating that states are reforming sentencing policies and scaling back on the use of imprisonment in an effort to control spending.

Putting Seventh Circuit Judges on the Stand:  Yesterday, Orin Kerr posted Cross Examining Frank Easterbrook on Volokh Conspiracy, and described Judge Easterbrook's testimony in the trial of Harold Turner, the New Jersey blogger charged with encouraging his readers to murder the three judges as retribution for their decision upholding a Chicago handgun ban.  Mark Fass has the story on Law.com, and Kerr posts on the attempted cross-examination of Judge Easterbook by defense counsel Michael Orozco.  Apparently after Judge Easterbrook told Orozco that he was "not grasping the case," he went on to give an extended history of the Fourteenth Amendment and its relationship to the Second Amendment, and U.S. Supreme Court precedent regarding both amendments dating back to 1873.  Kerr wonders what the jury was thinking.  Ashby Jones posts more on the Judge Easterbrook's testimony, including his response to Orozco's question about what might happen if the Supreme Court overturns McDonald v. Chicago.  "If it's overturned," Orozco asked, "doesn't that make Hal Turner correct?"  Responded Easterbrook: "This blog post says any judge who decides a case incorrectly is supposed to be assassinated. That is not the way the system works."   

Can Lawyer Negligence Extend Habeas Filing Deadline?: Marcia Coyle of the National Law Review reports on Monday's Supreme Court argument discussing how bad a lawyer must be to warrant stopping the clock on the one-year time limit for filing a prisoner's federal habeas petition.  In Holland v. Florida, the Justices confronted two issues: whether the one-year deadline for filing habeas petitions under the Antiterrorism and Effective Death Penalty Act can be tolled for equitable reasons, and whether a lawyer's gross negligence is one of those reasons for halting the clock.  The issue stems from the death penalty conviction of Albert Holland in 1991.  After his conviction became final in 2001, Holland had 365 to file a federal habeas petition.  The state of Florida appointed Bradley Collins to represent him in state post-conviction proceedings and Collins filed a state post-conviction motion 351 days into the one-year federal state of limitations.  That motion stopped the clock on the one-year deadline, but the clock would resume moving once his post-conviction movement was denied, leaving him only 14 days in which to file the federal petition.  Collins ultimately missed that deadline.  Florida Solicitor General Scott Makar argued that federal rules may permit exceptions when there are problems with access to the courts, but he argued that Congress imposed the one-year limit in order to avoid the use of habeas petitions to delay finality of convictions and sentences.  The Supreme Court has never explicitly ruled on whether equitable tolling is available under AEDPA, but, eleven circuits have held it is available.  CJLF's brief is available here.

Dating Game Killer Enters Penalty Phase: The Associated Press reports the penalty phase of Rodney Alcala's trial will begin today.  Jurors last week convicted the 66-year-old of killing 12-year-old Robin Samsoe and four women in the late 1970s.  It is the third time he has been found guilty of killing Samsoe.  The previous convictions and death sentences were all overturned.  Alcala could be sentenced to death or life without parole.

"Nevada Supreme Court hears Mack plea for new trial": Reno Gazette-Journal writer Martha Bellisle reports the Nevada Supreme Court's hearings to grant a new trial to convicted killer Darren Mack.  Mack, convicted of killing his wife and shooting their divorce judge, may get a new trial because his lawyers allowed him to plead guilty without discussing defenses that would have meant a lighter sentence.  Mack's new lawyer, Marcus Topel, told the Nevada Supreme Court Monday, that "it is undisputed that his counsel had not discussed with him the question of voluntary manslaughter." He added that Mack did not have information he needed to waive his rights and accept a plea deal that stopped his trial in 2007.  But Christopher Lalli, a Washoe County special prosecutor, said that nothing in the law supports the idea that a defendant must be told about the possibliity of being convicted of a lesser crime before pleading guilty.  "The defendant entered a knowing and intelligent and voluntary plea to murder," Lalli said. "He cannot now avoid the consequences of his actions by attempting to invent a new area of Nevada jurisprudence." Under the plea deal that Mack accepted in 2007, Mack was sentenced to life with the possibility of parole after 20 years for the murder of his wife and a consecutive term of 40 years with possible parole for shooting his divorce judge.

The Supreme Court has granted certiorari in Holland v. Florida on the question of tolling the statute of limitations for habeas petitions. Despite the name, this is a federal habeas petition from the Eleventh Circuit. (The respondent is supposed to be a corrections official. The State has Eleventh Amendment immunity.) The Eleventh Circuit's decision is here.

The district court dismissed the petition as untimely because it was filed beyond the one-year limitations period provided by 28 U.S.C. § 2244(d)(1). On appeal, Petitioner argues that he was entitled to equitable tolling of the limitations period for filing his federal habeas petition because of egregious conduct by his counsel during his post-conviction proceedings. Seeing no reversible error, we affirm the district court's dismissal of Petitioner's petition.

I will be traveling today and not able to blog further on this case or the Spisak argument until much later.

Now here is something refreshing. The Ninth Circuit decision in Waldron-Ramsey v. Pacholke involves a claim that an inmate who missed the federal habeas statute of limitations should be allowed to file anyway because of "equitable tolling." Nothing unusual in that, but the opinion by Judge Gould actually holds the prisoner responsible for his own obstructive conduct:

This is apparently statute of limitations week at the Supreme Court. On Tuesday, the Court decided the habeas case of Lawrence v. Florida, and today it decided the civil case of Wallace v. Kato. In both cases, the Court decided on the shorter of the two possible limits.

Lawrence involved, once again, the Antiterrorism and Effective Death Penalty Act of 1996. That act set a one-year statute of limitations on federal habeas corpus petitions by state prisoners when used to collaterally attack their convictions or sentences. The clock can begin ticking at several points, but the most common is when the Supreme Court denies certiorari or, if no timely petition is filed, the time to petition for certiorari expires. See 28 U.S.C. § 2254(d)(1).

The Supreme Court heard oral argument today in the case of Lawrence v. Florida. The transcript is available here. Under AEDPA, the one-year statute of limitations to file a habeas corpus petition in federal court begins running in most cases when the time to file a certiorari petition to the U.S. Supreme Court expires or, if a petition is filed, when the Court denies certiorari. However, "The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection." 28 U.S.C. § 2244(d)(2). Lawrence presents the question of whether to count the time when the state courts have finished with the post-conviction petition, but the petitioner still has time to ask the U.S. Supreme Court to review the case, the Court is considering whether to review it, or the Court has taken it and is considering the merits.

Below are the criminal and law-enforcement-related civil cases to be argued in the United States Supreme Court in the second session of the Term, October 30 through November 8. Links to the docket are provided and to the lower court decision in some cases. The docket includes a link to the Questions Presented (QP) page. Bear in mind that the QP is generally drafted by an advocate for one party (the one who lost in the court below) and not by the Court.

Monday, October 30: Jones v. Bock, No. 05-7058, and Williams v. Overton, No. 05-7142. The Court returns once again to the requirement of the Prison Litigation Reform Act that prisoners exhaust their administrative remedies before filing a federal civil rights lawsuit. The questions include whether a "mixed" petition with both exhausted and unexhausted claims must be dismissed and two questions on pleading requirements.

Tuesday, October 31: Lawrence v. Florida, No. 05-8820. The AEDPA statute of limitations, 28 U.S.C. § 2244(d), is tolled while an "application for State post-conviction ... review ... is pending...." Does that include the time when a certiorari petition seeking U.S. Supreme Court review of the denial of the application is pending or could have been filed? If not, does equitable tolling apply to this statute and in the circumstances of this case? USCA11 said no.

Wednesday, November 1: Whorton v. Bockting, No. 05-595. Does Crawford v. Washington's rewrite of the Court's Confrontation Clause jurisprudence apply retroactively to overturn a final conviction correctly decided by the state supreme court under the rule in effect at the time? USCA9 said yes, 2-1.

Tuesday, November 7: James v. United States, No. 04-9264. Does a prior conviction of attempted burglary qualify as a "violent felony" within the meaning of the Armed Career Criminal Act, 18 U.S.C. § 924(e)? USCA 11 said yes.

   Burton v. Waddington, No. 05-9222. Does Blakely v. Washington's expansion of the kinds of sentencing factors that must be proved to a jury beyond a reasonable doubt apply retroactively to cases already final on appeal when that case was decided? USCA9 said no in an unpublished opinion, based on its 2005 precedent in Schardt v. Payne.