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.
Looking at the tolling provision as an exhaustion-enabling device, the answer would seem to be no. The reason Congress included this tolling provision was to enable the petitioner to comply with the requirement that he exhaust available state-court remedies before turning to the federal courts. Once the state courts have finished their review, state remedies have been exhausted, and the petitioner may proceed to federal district court. If the certiorari petition tolls the statute, then every petitioner can get an automatic extension on his habeas petition just by filing a certiorari petition, extending a process Congress intended to shorten. Chief Justice Roberts' questions indicated a concern for this problem. Not mentioned, but possibly in the back of the Justices' minds, is an even greater flood of no-chance certiorari petitions than they already receive, just to get that extension.
On the other hand, not counting the certiorari time creates some practical difficulties. What if the defendant wins on state post-conviction, and the state is the certiorari petitioner? See, e.g., Florida v. Nixon, 543 U.S. 175 (2004). The prisoner can't file a habeas petition when he has already won, and his habeas clock shouldn't run out while the Supreme Court considers his case if they ultimately reverse. The reversal would preclude relief on the question presented, of course, see § 2244(c), but there will typically be other issues. The state's answer to that problem today was equitable tolling. Many on the prosecution side would consider that a Pyrrhic victory, as the Supreme Court has not yet decided whether equitable tolling applies to this statute, and there is a good argument that it does not.
For those following the number-of-questions theory, Justices Stevens, Scalia, Kennedy, Souter, and Ginsburg asked more question of the state. Chief Justice Roberts and Justice Alito asked more questions of the defense. Justice Breyer asked about equal numbers of questions of each, and Justice Thomas asked no questions.
Pete Yost of the AP reports on the argument here.
Leave a comment