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Appealability and Time Limits on Habeas

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Today in Gonzalez v. Thaler, No. 10-895, the Supreme Court took up some Slack and solved a Riddle on a couple of points of habeas corpus procedure.

In the post-AEDPA procedure for appeal, the petitioner cannot appeal a denial of relief unless he gets a judge to issue a certificate of appealability, which is supposed to identify the issues on which "the applicant has made a substantial showing of a constitutional right."  In Slack v. McDaniel, 529 U.S. 473 (2000), the Court held that when the denial is on procedural grounds, the petitioner must show both a debatable claim on the merits and that the procedural ruling may be wrong.

What if a judge grants a COA but doesn't specify the substantive claim that meets the statutory requirement, and nobody objects?  That would block the appeal only if the specification requirement is jurisdictional.  The Court today held 8-1 that it is not.  (Opinion by Justice Sotomayor; dissent by Justice Scalia.)  I don't have a problem with that.  The State needs to make timely objection to errors, just as the defendant does, or else it defaults the claim.  Exceptions to the "speak now or forever hold your peace" rule are and should be rare.

On a second point, the statute of limitations clock for federal habeas begins, in most cases, on "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review."  If the judgment is affirmed in the state's intermediate appellate court, and the defendant does not seek discretionary review from the state high court, does the federal clock start when the state clock runs out or when the intermediate appellate court issues its mandate? 

Answer (without dissent): when the state clock runs out.  The Eighth Circuit's contrary decision in Riddle v. Kemna, 523 F.3d 850 (2008) (en banc) is wrong.  The "conclusion" prong is for defendants who take it all the way to SCOTUS, where the usual conclusion is denial of certiorari, and the "expiration" prong is for those who do not.  In the latter case, "final" is the time limit on whatever review procedure the defendant did not seek.

The more difficult problem not squarely presented in today's case is how to handle COA problems when someone does object.
Today's decision endorses the practice of courts of appeals either amending the COA or remanding to the district court for specification of issues.  See slip op. at 10 & n. 7.  That will take care of the situation presented in this case, where the issuing judge simply, erroneously leaves out the required specification.

What about the much more common situation where the issuing judge does specify one or more issues, but the petitioner wants more specified?

In the Ninth Circuit, this variation is handled with a local rule that constitutes a de facto repeal of an Act of Congress, defeating the purpose of the specification requirement.  Circuit Rule 22-1(e) allows the petitioner to brief uncertified issues under a heading identifying them as such.  "Uncertified issues raised and designated in this manner will be construed as a motion to expand the COA and will be addressed by the merits panel to such extent as it deems appropriate."

So why have the specification requirement at all?  Today the Supreme Court said, "The COA process screens out issues unworthy of judicial time and attention and ensures that frivolous claims are not assigned to merits panels."  Not in the Ninth Circuit it doesn't.  The rule needs to be amended to ensure that the COA performs its screening function.  The issues on appeal should be limited at the threshold to those the issuing judge or the motions panel considering an amendment deemed to have met the statutory requirement.  Everything else should be out of the case.

1 Comment

The actual practice in the Ninth is even worse than you suggest. Motions panels in the Ninth routinely certify only a procedural issue. Occasionally, they'll tack on an indication that one unspecified merits issue meets the constitutional threshold, but they won't say which one it is.

And even when a State timely objects to a defective certificate, the merits panels in the Ninth still routinely ignore the COA requirements, reverse on the procedural question, and remand for a hearing on the merits.

Scalia asked, at 4-5 of the dissent, what the consequence was "when the issuing judge, over properly preserved objection, produces a COA like the one here, which does not contain the required opinion? None whatever."

That's how the Ninth already views it. And the majority opinion gives no reason for them to change.

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