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Statute of Limitations -- Habeas


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).

However, federal law has long required that a prisoner exhaust state remedies before turning to the federal courts, so paragraph (2) of the same subdivision provides for tolling of the period.

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.

The Court settled six years ago in Duncan v. Walker, 533 U.S. 167 (2001), that this provision only applies to state proceedings, not a previous federal habeas petition. Further, it has been settled for decades that a certiorari petition to the U. S. Supreme Court is no part of the state remedies that need to be exhausted before turning to federal habeas.

Given the goal of Congress to expedite habeas proceedings and given how rarely the Supreme Court grants certiorari in state collateral cases, it makes sense to start the clock ticking again when the state courts are finished with the case. The exhaustion requirement has been fulfilled, and nothing prevents the defendant from extracting the federal claims from his appeal and state habeas petition and filing them immediately as a federal habeas petition.

One argument to the contrary consisted of contrasting the language of § 2244(d)(2) with § 2263(b)(2), which is supposed to apply in capital cases to those states which have provided qualified counsel for state habeas. (It hasn't yet, but that's another story.)  The Court has given this argument more weight than it deserves in the past. See Lindh v. Murphy, 521 U.S. 320 (1997). The reality, though, is that this act had to be hammered out quickly and rammed through Congress in a narrow window of political opportunity after decades of successful blocking by the other side. No valid inferences can be drawn from differences in drafting of the two different chapters.

The other argument was that limiting the tolling to the necessary steps to exhaust could result in "awkward" situations not anticipated by Congress. The strongest case is the situation presented by Florida v. Nixon, 543 U.S. 175 (2004), where the state court grants relief on collateral review and the U.S. Supreme Court grants certiorari and reverses. Does the clock continue to run during the Supreme Court's consideration of the petition and the case? Could the petitioner preserve his right to federal habeas review of his other claims by filing a federal habeas petition even though the state process had ended in his favor? The majority opinion in Lawrence did not squarely address that problem. It noted that equitable tolling might be available, but the Supreme Court has never resolved, and did not resolve in Lawrence, whether equitable tolling applies to § 2244(d) at all.

In the typical case, interpreting § 2244(d)(2) to toll during the pendency of a certiorari petition would give every defendant an automatic extension of six months to a year on a one-year statute simply by filing such a petition, even if it has virtually no chance of being granted. It is, indeed, unlikely that Congress intended this. The Nixon scenario will have to be dealt with somehow, though. It would be prudent for defendants who prevail on state habeas to file a protective federal petition on the other federal questions if the state petitions for certiorari.


Kent: Any thoughts about whether the habeas clock can be tolled before it starts ticking? For example, assume that a properly filed state post-conviction is commenced with the trial court before direct review becomes final, and the state post-conviction stops being pending long after direct review became final. Is there an issue here, or am I proving I have too much free time?

I don't see an issue. "Tolling" a limitation period that has not yet begun doesn't make much sense. In the situation you describe (which is standard procedure in California), the period is tolled as soon as it starts (cert. denied on direct review), and the stopwatch actually begins ticking when the state habeas is completed.

What are folks views on whether this ruling will apply retroactively to petitions pending in districts which did not have this rule?

I think it applies, but if the petitioner relied on circuit precedent to his detriment, he will surely claim equitable tolling and likely get it.

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