Sorry for the slow blogging lately. Been a bit swamped.
Here are some quick thoughts on Monday's arguments in the Supreme Court. I'll just say overall that it was not a bad day for petitioners. I think petitioner will definitely win in Kholi. As for Martin, I think petitioner will most likely lose, but I am thinking it will be in a splintered decision that keeps the law relatively favorable for petitioners.
Wall v. Kholi
This argument went surprisingly well for petitioner.* There just didn't seem to be any Justices on Respondent's side, except for potentially Alito and Scalia, who tried to offer better arguments than the one that Respondent put forward. But neither pushed too hard. The "term of art" argument as to the meaning of collateral review fell flat. Even Scalia rejected that one. And the Justices also seemed adverse to even distinguishing between discretionary and legal post-conviction challenges, just because it would be too complicated to take that issue on in a case by case basis.
*Once again, when I say petitioner here, I mean the habeas petitioner, who was actually the Respondent, and vice versa. It's just easier that way.
The biggest issue at the argument was what exactly is this Rhode Island proceeding, called a Rule 35 motion. Almost every judge who spoke could not figure out Rhode Island's post-conviction procedure. The attorneys tried to help, but it seemed to go in circles.
Apparently, on direct appeal in Rhode Island, a defendant can only challenge the conviction, but not the sentence. That seems odd and not likely, but both attorneys seemed to say that. A challenge to the sentence would have to be in the proceeding at issue in Kholi or a different post-conviction proceeding, the name of which was not really discussed.
So what was confusing was whether this Rule 35 motion was even a collateral proceeding. In some ways, it could actually be viewed as the direct appeal from the sentence. Or at least, some judges were willing to look at it that way. It means that the one-year limitations period could only begin to run once this Rule 35 proceeding was over. An even better situation for petitioner.
In any event, it seemed pretty clear from the argument that no matter how this thing was viewed, petitioner was going to win.
Walker v. Martin
First, the good: no Justice seemed willing to accept Respondent's offer to change the law on independent and adequate state law grounds. I believe even Alito commented that "fair notice" was not the only consideration. So that's good. Further good stuff: the Justices also seemed willing to view the issue here as whether a procedural rule is adequate if it is not consistently applied.
But the problem seemed to be that the Justices were not willing to say that the rule here was being inconsistently applied. At least, not from the record that was presented.
The bigger issue for me was something briefly discussed in the briefs, but which Scalia was willing to take to its logical conclusion: this was a discretionary rule and discretionary rules, by their very nature, will be inconsistently applied. Last term, in Beard v. Kindler, the Court said that discretionary rules can be adequate. So, if that's all this rule is, then there isn't any problem with it.
I think that the problem with Scalia's logic is that this isn't a discretionary rule. At least, it is not structured as a true discretionary rule. As far as I can tell, it does not say that a judge "may" deny the application if there has been a substantial delay. It says that, if the motion has been substantially delayed, it will be denied. The discretion appears to be some sort of unofficial safety valve that gives a court discretion to ignore the substantial delay in the interest of justice. These are my own terms, but it seems to work like that.
Here's how it breaks down: it appears that California courts will summarily deny these applications without stating that it is being denied on account of substantial delay. So, no guidance. And, at the other end, the courts will address the merits of these applications without stating that (a) there was no substantial delay or (b) saying that there was substantial delay and the court was addressing them in the interest of justice. Once again, no guidance.
It's a bit tricky. There is discretion, but its not a discretionary rule. And the California courts have not been very, what's a good word, explicit on how they are applying the rule. But a couple of the judges were uncomfortable saying a rule was being inconsistently applied where it was difficult to actually show that. It was really more about a lack of clarity as to how the rule was being applied.
So I think that this one will be splintered. I think that the general legal standard will come out favorably for petitioner, but that the result may not.
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