The Supreme Court today decided Bowles v. Russell, regarding the time limit to appeal a civil judgment under 28 U. S. C. § 2107. Federal habeas corpus petitions by state prisoners are considered civil cases for this purpose, among others. The Court split 5-4, with the majority sticking to the traditional view that the limits in this section are jurisdictional and therefore can't be waived regardless of circumstances. There has been a trend recently to cut back on what is considered "jurisdictional," which is the main point of the dissent. The AP has this story on the case. Tony Mauro weighs in at Legal Times, saying "the low-profile case offers as good a glimpse as any into the sharp conservative-liberal divide emerging this term."
This decision won't affect the habeas statute of limitations, which the Court has already said is not jurisdictional. See Day v. McDonough, 547 U. S. 198, 205 (2006).
In one sense, this is as compelling a case as any for making an exception. Bowles asked the judge for an extension of time to file an appeal, and the judge gave him 17 days, apparently unaware he only had authority to grant 14. The notice of appeal filed on day 16 was therefore jurisdictionally out of time.
Sound harsh? Maybe not. In federal habeas generally, before a case gets to the Federal Court of Appeals, a prisoner has already had the opportunity to state his case to the trial court, one or two state appellate courts, often a state habeas court plus appeal (although there was no state habeas in this case), and the Federal District Court. That means the claim has already been rejected by at least three courts if it was made all along the line, and sometimes by more. Claims so rejected generally start at borderline and go down from there.
Way down, in this case. The Sixth Circuit, 432 F. 3d 668, 669, describes the claim: "In the trial court, Bowles moved for dismissal, arguing that Ohio's Revised Code had created two categories of murder in contravention of the Fourteenth Amendment." Really. I'm not making that up.
Recognizing that state habeas petitioners have already had more days in court before they appeal than most litigants get altogether, Congress has limited such appeals. A certificate of appealability is required, which is only supposed to issue "if the applicant has made a substantial showing of a constitutional right." 28 U. S. C. § 2253(c)(2). In Slack v. McDaniel, 529 U. S. 473, 478 (2000), the Court held (emphasis added):
Second, when the district court denies a habeas petition on procedural grounds without reaching the prisoner’s underlying constitutional claim, a COA should issue (and an appeal of the district court’s order may be taken) if the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right, and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.
In Bowles, the Sixth Circuit found the procedural problem on appeal. Although Slack is not squarely on point, the same principle should have applied. Although the procedural issue was then unresolved and debatable, the COA should not have issued unless the underlying constitutional claim was also debatable. Where, as here, the claim is complete drivel on the merits, the COA should not have issued in any event.
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