Here is the case in a nutshell. Appointed counsel on appeal can find no arguments worth making, so he files what is called an "Anders brief" saying essentially that. Dummy fails to send his client a copy, which is against the rule. Appellate court doesn't notice (the clerks are supposed to check stuff like that), doesn't find any errors on its own, and dismisses the appeal. Jimenez doesn't find out his case has been dismissed until a year later, in September 1997.

If he had complained right then, as one would expect, there would be no problem. But no. He sits on it until April 2002, four and a half years.

Then, Jimenez files a state habeas application, saying he was shafted out of his appeal. One might expect the court to say, "Maybe so, but you can't sit on this for four years and then expect relief." If they had, there would be no problem. But no. The Court of Criminal Appeals of the Lone Star State, that racist, redneck tribunal that never gives a defendant a break, gave Jimenez a break. Specifically, they allowed him to file an out-of-time appeal.

On appeal, the appellate court concluded just what Jimenez's own lawyer and the previous appellate court concluded, i.e., his claims are meritless.

So, did the federal habeas limitation clock start over with a new "direct appeal" or was it just "tolled" while that proceeding was pending. Given that the year had already run while Jimenez was sitting on his claim the first time, tolling does him no good, while starting over gives him a free pass for a 4+ year delay. The federalist argument is that the state chose to give him the pass, and AEDPA is all about giving state systems more respect.

Personally, I don't have a good answer to this puzzle. No clear answer appears in the argument today. I'm quite sure that no one in Congress thought of it while AEDPA was going through. And does this happen often enough that the Supreme Court really needs to be worrying about it?

On pp. 50-51, Justice Stevens asks, "Isn't this characteristic of this category of cases, that really most of them heard are pretty frivolous? ... What strikes me about the case is we are fighting about the limitations and whether it applies and so forth; you probably could have disposed of the whole litigation a lot faster by just looking at the merits for about ten minutes."

There are indeed times in habeas when the claims are such obvious garbage that denial on the merits is the fastest way out. Congress recognized that for exhaustion in 28 U.S.C. § 2254(b)(2). I argue in Bell v. Kelly that it also applies to § 2254(d). Now that the Supreme Court has the procedural puzzle, though, they ought to solve it.