Habeas Corpus - Time Computations

Second Circuit issued a published per curiam opinion today affirming a dismissal of a habeas petition as time-barred.  The case is Saunders v. Senkowski and can be found here. 

There are two important questions in the decision -- (1) can a COA be amended to add a claim?; and (2) do time periods in which a petitioner can request re-argument toll the one-year limitations period?  The Second Circuit answers yes to (1), but no to (2).

Here's what happened.  The district court concluded that a petition was time-barred, but granted a COA on the question of whether the time period was equitably tolled. 

On appeal, petitioner argued that the district court got the time computation wrong.  Respondent argued that the Second Circuit should not consider this issue since it was not a part of the COA.  The Second Circuit concluded that it had the power to  liberally construe the notice of appeal as a motion to amend the COA to include the claim.  The court decided that timeliness was "antecedent" to the issue of equitable tolling and petitioner had raised the question on appeal.  The court cited to a prior case in which it took the same step and to Federal Rule of Appellate Procedure 22(b)(2), which allows a circuit court to construe a notice of appeal as a request for a COA.

While the Second Circuit cites to a rule and a prior case, this really is the court exercising an inherent authority.  It's an interesting procedural step, but I am not sure how broadly it can be applied.  From the language, I guess that a petitioner could move to amend the COA where petitioner wants to advance an "antecedent" issue.  I am not sure how many of those situations there are out there.  And can that happen when the Second Circuit grants a COA or can this only happen when the district court grants the COA?  Not sure of the answers to those questions.

The other question in the case is much more concrete.  According to the Second Circuit, the petition was untimely by just four days.  Petitioner argued that the time period in which he could seek reargument on the denial of an error coram nobis petition should toll the one-year time period.  The Tenth Circuit had decided this issue in favor of the habeas petitioner, concluding that a similar type of reargument period does toll the time period.  However, the Second Circuit concluded that its own prior precedent, as well as its reading of the statute, pointed to a different conclusion.

So a bad decision for habeas petitioner's on this point.  But it does seem to create a split, which opens up the possibility that the Supreme Court will review the issue someday and maybe even agree with the Tenth Circuit.

Comments

[Al OConnor]

Aside from the legal issues resolved in Saunders, the case offers a harsh lesson about the consequences of permitting the habeas clock to wind down before tolling with a state post-conviction motion. Saunders, who was represented by counsel (not the one who handled the 2d Circuit appeal), did not stop the habeas clock until 4 days before the federal deadline, when he finally filed a CPL section 440.10 motion. Thereafter, counsel diligently, but unsuccessfully, pursued post-conviction relief in state court for more than one year. When counsel received notice from the Court of Appeals denying further review on May 27, 2003, he rushed to federal court the same day and filed the habeas petition. But, unbeknownst to counsel, the habeas buzzer had sounded on May 20 when the order denying leave to appeal had been entered in the Court of Appeals. With so little time remaining on the habeas clock, counsel did not even have breathing room to learn about the leave denial by ordinary mail.

There are 2 lessons here for habeas practitioners: 1) when your back is against a habeas deadline this severely, you will need to make arrangements for immediate telephone or electronic notification of any state court ruling that will restart the habeas clock, or call the clerk's office every day to check the case status; 2) whenever possible, you should avoid placing yourself in this tenuous position by filing state post-conviction motions as early as possible.