Tomorrow, the Supreme Court will hear argument in the habeas case of Gonzalez v. Thaler. There are two issues in the case:
(1) Was there jurisdiction to issue a certificate of appealability under 28 U.S.C. § 2253(c) and to adjudicate petitioner’s appeal?; (2) Was the application for a writ of habeas corpus out of time under 28 U.S.C. §2244(d)(1) due to “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review”?
From SCOTUSblog's preview, I see that the parties spent a good deal of their time debating the COA issue. The debate is over whether the Fifth Circuit's COA order was jurisdictionally deficient in that it did not mention whether reasonable jurists could debate whether petitioner had stated a valid underlying constitutional claim. The Solicitor General weighed in on this issue as well, arguing that the problems with the COA are jurisdictional.
On a certain level, this debate is fine with me. I was more worried about whether the Court would overrule its prior precedent allowing a COA on a procedural issue. That does not appear to be a legitimate fear.
The debate reminds me of the cannon to shoot a fly Second Circuit decision from the other day about the required specificity of a certificate of appealability. I have no problem with courts having to be more exact with COA's and, if they are not, forcing them to be more exact.
But jurisdictional? That's a little nutty. If it is purely a jurisdictional error, then the State would be allowed to move to dismiss based on the insufficient COA order. But under that logic, the Fifth Circuit deprived itself of jurisdiction when it issued an imprecise order. I don't see how a court can deprive itself of jurisdiction like that.
Rather, I would think that a court has the power under the federal rules to correct its own orders to address such a mistake (maybe FRAP 40?). If there is a deficiency in the COA order, then the court should simply be asked to fix it. For example, here, the State could seek reconsideration of the COA grant and argue that the appellate court shouldn't consider the case unless that's fixed. I guess in that way it would be "quasi-jurisdictional." The court can look at the case again and see whether or not the standard has been met. If not, then they can dismiss the appeal that way. But that's how it should go. If the State doesn't raise this procedural defense, then it would be waived and there is nothing wrong with the court considering the case.
And if the district court didn't issue a specific enough order, then like Blackman from the other day, the case would just get remanded for it to get fixed.
But jurisdictional? That's nutty.
Assuming the court gets past this procedural hiccup, I'll just cut and paste what I stated about the statute of limitations issue back in the preview, in which it was ranked sixth out of the eight habeas cases:
I re-read the lower court decision and I still don't get it. It seems very state-specific as to what date should be used as the end date of the appeal. And each one is a totally legitimate way of looking at it. Does the Supreme Court need to step into that mess and say that it needs to be the same date in all cases, regardless of the state's individual procedure? It seems like a waste of time. State law should control on that question in my mind. States' rights! (That's tongue in cheek -- secessionist talk is best left to southern governors with presidential aspirations).