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Supreme Court flunks its own Maynard test

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 State's contention that the addition of the word "especially" somehow guides the jury's discretion, even if the term "heinous" does not, is untenable. To say that something is "especially heinous" merely suggests that the individual jurors should determine that the murder is more than just "heinous," whatever that means, and an ordinary person could honestly believe that every unjustified, intentional taking of human life is "especially heinous."
Just so, every attorney who blows a statute of limitation is negligent, and adding a requirement that the negligence be "gross" or "extraordinary" does nothing to channel the lower federal courts' decision-making so that "extraordinary circumstances" for equitable tolling in one state will mean the same thing as "extraordinary circumstances" in another. Justice Alito, once again, nails it:

Although I agree that the Court of Appeals applied the wrong standard, I think that the majority does not do enough to explain the right standard. It is of course true that equitable tolling requires "extraordinary circumstances," but that conclusory formulation does not provide much guidance to lower courts charged with reviewing the many habeas petitions filed every year.

The politics of federal judicial selection effectively guarantee that state-court judgments will receive the greatest federal-court scrutiny in the states where such scrutiny is least needed. Without objective standards for when attorney negligence is "extraordinary" enough to grant equitable tolling, we will see tolling regularly granted in those states where true miscarriages of justice in capital cases rarely, if ever, make it out of the state courts. Resolution of cases will be delayed while the federal courts relitigate and second-guess issues that have nothing to do with guilt and little to do with justice.

The Supreme Court should demand of itself at least the same degree of objectivity that it demands of state legislatures. It should take up equitable tolling again for the coming term and give us a test that passes the Maynard standard.


"Death is different." The rest is just details. Bottom line, there is a majority on the Court that is not going to allow these kinds of mistakes to interfere with precious federal review of death sentences. Let's hope that this non-law law is effectively cabined to death cases.

No chance of that. In fact, this statute does *not* apply to capital cases where the state has qualified for the Chapter 154 fast track. Where ยง2263 applies, the case that Congress has specified the circumstances for tolling and there are no others is stronger.

I am much less concerned with delay in the noncapital cases. In those cases, there is no delay in the execution of the sentence.

The eye popper for me, and Scalia points this out, was the language in the opinion that SOL questions are exclusively federal issues and do not implicate federalism concerns. As
Scalia put it: "I fail to see how federalism concerns are not implicated byad hoc exceptions to the statute of limitations for attempts to overturnstate-court convictions." The majority's failure to see the larger federalism picture is disturbing.

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