Habeas Corpus Blog

Habeas Corpus - Supreme Court Provides Innocent State Prisoners a Glimmer of Hope

By JK

Last week, in a 5-4 decision, the Supreme Court decided McQuiggin v. Perkins.*  The Court held that a Schlup gateway “actual innocence” showing can overcome the one-year statute of limitations time bar. Ginsburg wrote the (nice) majority opinion and Scalia wrote the (troubling) dissent. 

*As I was adding the link, I just realized that McQuiggin (kind of) rhymes with Chief Wiggum. Can't say that about the parties in too many S.Ct. decisions.  Alas, the shorthand for the case technically should be Perkins, as McQuiggin is the name of the warden.  I am guessing, though, that more people will refer to this case as "McQuiggin" rather than "Perkins".

The majority's opinion is a satisfying result for habeas fans.  It’s completely consistent with the equitable principles of habeas law. It’s also consistent with the way that the rest of habeas law is structured, as an actual innocence claim can be used to overcome any other procedural shortcoming.

Important to note what exactly the Court did hold here: there is an actual innocence exception to the statute of limitations.  It stands on its own as it's own procedural thing. As a habeas attorney pointed out to me at one point, the petitioner in this case mistakenly argued that actual innocence could be ground on which the time limit could be equitably tolled. But that’s not what’s going on here. Equitable tolling is one exception. Actual innocence is another. They are now two separate exceptions available to a habeas petitioner. A petitioner can rely on actual innocence to get over the timeliness hump even if there are no grounds to equitably toll the limitations period.

Another important part of the opinion was that the Court concluded that, unlike equitable tolling, there is no diligence requirement. Rather, any argument about the staleness of the innocence evidence or the length of time it took a petitioner to either find the evidence or present it to a court is simply a factor to weigh in determining the strength of petitioner’s claim of actual innocence. In fact, as the Sixth Circuit held below, a diligence requirement for this type of claim is completely illogical. It was really nice to read the Court actually agreeing with something the Sixth Circuit had said.

One interesting note is that the petitioner won on the law, but lost the case. The Court deferred to the district court’s conclusion that his showing was insufficient to meet the Schlup standard. As a lawyer, it’s an odd feeling to get this type of opinion. You feel good that you were right on the law, but you feel horrible that you lost the case. And the loss dulls whatever excitement you may have had that you were right. At least short term. With some perspective and time, it becomes easier to say that at least I made good law for other people, even if it didn’t help my client. It’s probably toughest on the ego, though, as it actually does count as a loss.

Speaking of the loss column, let’s talk about the dissent. It really is a p.r. disaster for the anti-habeas crowd. It’s a tough sell to a lay person that it's okay for someone who can prove their innocence to have to rot in jail. I have seen many people in the media frame it that way. It just makes these judges appear cruel. I guess you have to hand it to the dissenters, they don’t care about how they look in the public eye.  But it’s exactly what I felt when Scalia dissented from the denial of cert. in Cash v. Maxwell (one of those cases where the system clearly went horribly off the tracks) – is this really a situation where the judges want to take a stand against the habeas petitioner? The equities clearly are on the side of the petitioner.

But beyond the p.r. mess, I didn’t really find the arguments in the dissent that persuasive. Scalia’s main claim is that this is the first time that the actual innocence exception has been applied to a statutorily created procedural hurdle, as opposed to a judge-created procedural hurdle. It boils down to an accusation of judicial activism. But it’s a pretty hollow complaint. While his argument, on its own terms, is hyper-technically accurate, it’s not really accurate in the grand scheme of things. Exhaustion is part of the statute, and actual innocence can be used to overcome a procedural default along the way to exhausting a claim. While one step removed, it’s really not that different logically. And of course the irony is that the Supreme Court has been highly active for years in creating procedural rules that don’t exist in the statute. Because equity and fairness (in most situations to the State and its courts). But these concerns obviously can go in the other direction, and the majority was relying upon these principles to make a ridiculously harsh statute more equitable.  

To note, Scalia even has to acknowledge that the Court has already created an exception to the statute of limitations, namely equitable tolling. He differentiates it from actual innocence in that equitable tolling has been around for a long time. Yawn. The actual innocence exception to overcome procedural hurdles has been around for years, and is as old as many of the procedural hurdles that the Court has created. Further, innocence has always been at the heart of modern habeas law – meaning for over 60 years. And, once again, equity and fairness. That’s why equitable tolling typically is allowed for a statute of limitations. It’s the exact same reason the actual innocence exception has now been allowed by the Court in the habeas context -- the imprisonment of an innocent person is one of the greatest inequities that our society faces.

But I haven’t even reach the real cynical part of the dissent. For years, I have been joking on here that much of what the Court does seems to be motivated by nothing more than hatred for habeas corpus. I thought it was only hyperbolic. Turns out it was true.  

At the end of the dissent, Scalia launches into an anti-habeas diatribe (so extreme that Alito won’t even join it). He states:

It has now been 60 years since Brown v. Allen, in which we struck the Faustian bargain that traded the simple elegance of the common-law writ of habeas corpus for federal-court power to probe the substantive merits of state-court convictions. Even after AEDPA's pass through the Augean stables, no one in a position to observe the functioning of our byzantine federal-habeas system can believe it an efficient device for separating the truly deserving from the multitude of prisoners pressing false claims. "[F]loods of stale, frivolous and repetitious petitions inundate the docket of the lower courts and swell our own. . . . It must prejudice the occasional meritorious applicant to be buried in a flood of worthless ones." Id., at 536-537.

The "inundation" that Justice Jackson lamented in 1953 "consisted of 541" federal habeas petitions filed by state prisoners. Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U. Chi. L. Rev. 142, 143 (1970). By 1969, that number had grown to 7,359. Ibid. In the year ending on September 30, 2012, 15,929 such petitions were filed. Administrative Office of the United States Courts, Judicial Business of the United States Courts 3 (Sept. 30, 2012) (Table C-2). Today's decision piles yet more dead weight onto a postconviction habeas system already creaking at its rusted joints.

Talk about blaming the victim. The only reason that habeas is somehow “creaking at its rusted joints” is because Justice’s like Scalia broke it with those “byzantine” procedural hurdles. It’s like the current Republicans in Congress complaining that government doesn’t work after they cut the funding necessary to make the Government work.  

Really, he is just unhappy that the Court breathed a small bit of life into habeas. And it really is a very tiny bit. But at least it’s something.

I’ll just close by saying this: This blog has been around for over four years now and we have seen plenty of examples on here of why habeas review remains a vital and necessary element of the criminal justice system. And contrary to what Scalia suggests, I will say as a full-time habeas litigator that meritorious habeas cases are not prejudiced from a flood of stale habeas petitions. Not in the least. They are prejudiced – solely – from the harsh standards of the AEDPA, which has ensured that many constitutional violations do not get remedied.  Get rid of the AEDPA and you will see a miraculous disappearance of, not just the creaking, but also the rust from the joints -- and fast.  If only Billy Mays was still around to sell this simple remedy.

  

McQuiggin v. Perkins: The Due Diligence / Actual Innocence Showdown

By MK

A few weeks back, Jonathan posted the Supreme Court's cert grant in McQuiggin v. Perkins, No. 12-126.  The case will not be argued until early 2013.  But this week an article appeared about the case by Times court-watching superstar Adam Liptak, so I figured it would be a good time to start following it here. 

The underlying case is fairly simple.  Three men leave a party: two return, the third is found dead.  One of the two (Perkins) is put on trial - he says the other guy did it.  "Other guy" testifies that Perkins did it.  The jury believes Other guy and Perkins is sentenced to life.  Over the following five years, Perkins obtains affidavits from three people casting suspicion on Other guy (including one from a local dry-cleaner who remembers Other guy dropping off heavily bloodstained clothes around the tiime of the murder).  Perkins then waits ANOTHER six years to file his 2254 petition. 

The case deals with a question that has divided the Circuits for several years: whether a late-filing habeas petitioner seeking equitable tolling of AEDPA's 1-year limitations period needs to demonstrate his due diligence in bringing his claim even when he makes a bona fide (or "gateway") claim of actual innocence.  Or, as the Question Presented puts it: "Whether there is an actual-innocence exception to the requirement that a petitioner demonstrate that "he has been pursuing his rights diligently."

The issue is superficially procedural, but the case is very important for three reasons.  The one-year bar imposed by AEDPA in 1997 still catches many prisoners unawares, so equitable tolling cases come up fairly often.  And the law in this area is still fluid: one of AEDPA's ironies is that a limitations period designed to cut the habeas workload of the federal courts in practice spawned an entirely new habeas subspecialty dealing with exceptions to the one-year bar. 

Most importantly though, the issue invokes a deep tension running through postconviction law in general.  On the one hand, no lawyer (and certainly no Supreme Court Justice, except maybe J. Scalia) is comfortable with the idea of tossing a credible claim of innocence simply because it was filed late.  As the pace of exonerations grows, so too does this discomfort.  On the other hand, a broad "actual innocence exception" credibly threatens to swamp the general rule of due diligence.  As the amicus brief of ten states bluntly puts it: "unscrupulous prisoners falsely claim that they are innocent all the time.”  Even more would do so in order to get their late claims heard under the proposed exception.

Given the importance of the issue, it's not surprising the Supreme Court decided to hear it.  And the Court likely wants to provide some consistent guidance.  It's prior discussions of actual innocence are hardly consistent.  In House v. Bell, 547 U.S. 518 (2006), the Court suggested that gateway actual innocence claims are not subject to any "additional requirements.”  Other cases, such as Holland v. Florida, 130 S. Ct. 2549 (2010), and Pace v. DiGuglielmo, 544 U.S. 408 (2005), indicate that "those seeking equitable tolling must, in general, pursue their claims with reasonable diligence.”

Liptak raises an interesting possibility: the Court could find that Perkins actually was dilligent.  The State points out in its cert petition that Perkins "has never argued that he was diligent in waiting six years . . . until filing his habeas petition."  But Liptak refers to district court filings in which Perkins contends that he was hampered in his efforts when prison staff destroyed his personal property "following petitioner’s involvement in inciting a riot."  Perkins also contended that he "was denied access to the law library and law materials while he was held in solitary confinement" for almost five years.

I don't think the Court will go this route.  It is true that the evaluation of due diligence must not “ignore the reality of the prison system,” Easterwood v. Champion, 213 F.3d 1321 (10th Cir. 2000).  But Perkins has had many chances to substantiate his due diligence claims and yet has apparently not done so.  More importantly, it is unlikely that the Supreme Court will avoid settling the Circuit split.  A finding of due diligence would make any answer to the QP obiter dictum. 

More to come on this interesting case. . . .

 

Habeas Corpus - Pretty Good Term for Habeas

Yesterday, the Supreme Court issued its opinion in the final outstanding habeas case this term, Wood v. Milyard.  And it was another habeas win! 

The Court (via Ginsburg) held that, while a circuit court can sua sponte raise the statute of limitations defense, the court can only do that when the State forfeited the claim in the district court (i.e. failed to preserve) and only then in exceptional circumstances.  It cannot be raised sua sponte when the State affirmatively waives the claim. 

That's not the best holding that could have happened (best=statute of limitations cannot be raised sua sponte in any situation), but it's still pretty good.  In particular, the Court seems to give "exceptional circumstances" a pretty restrictive meaning.  So it's not as if the circuit courts have carte blanche to go around sua sponte'ing the statute of limitations everywhere.  And in Wood's particular case, the Court concluded that the circuit court abused its discretion in raising the defense sua sponte since the State waived it in the district court.  Nice little win.

And the decision was (mostly) unanimous.  At least unanimous in result.  Thomas concurred (joined by Scalia).  These two Justices, furthest to the right, would have gone even further than the majority and held that the defense cannot be raised sua sponte at all -- even when it was forfeited.  Thomas offers a very literal reading of the rules and says that they prevent the defense from being raised sua sponte. That's pretty consistent with his judicial philosophy generally -- elevating text above all else.  At least he's (ostensibly) consistent.

But it's funny.  Someone mentioned this to me today -- the rules are typically the rules unless they are being applied to habeas cases.  Then all bets are usually off.  The holding here is a good example.  As Ginsburg mentioned in her main opinion, there is no way that a circuit court would be allowed to get away with raising a defense sua sponte in a civil case.  But habeas is different.  The Court felt pretty comfortable carving out an exception to that rule in a habeas case.  Because habeas is different. 

But even with that, it still counts as a habeas victory.  By my count, that's four habeas victories (including a habeas grant!) this term.  There was Maples (excusing a procedural default when counsel essentially dropped the ball), then Martinez (excusing a procedural default based on IAC in a collateral proceeding), then Lafler (IAC in plea negotiations - the habeas grant), and now Wood.  And even though there were several big losses (Greene comes immediately to mind), that's still a pretty good term in habeas, especially compared to the last term (which I view as potentially the absolute nadir in the history of habeas law -- at least post-AEDPA). 

I have yet to put up a post about Lafler.  I am thinking that it's probably going to have a pretty big impact, so I hope to share my thoughts on that one at some point soon.

Habeas Corpus - Gonzalez & Perry - Reminder

Just as a reminder, the Supreme Court will be hearing oral argument today in the habeas case of Gonzalez v. Thaler and the front-end case of Perry v. New Hampshire.

The issues in Gonzalez are: (1) was the order granting a COA sufficient; and (2) for the one-year statute of limitations, what date is used to determine the end of review in state court.

The issue in Perry is: does a non-police-arranged unduly suggestive identification procedure require suppression of an in-court identification?

For more on Gonzalez, see here.

For more on Perry, see here.

Habeas Corpus - Argument Transcripts

The transcripts are available in the three habeas cases heard today.

Here's Maples.  Here's Martinez.  And here's Fields.

I skimmed through them.  And now I am feeling down.  I don't think that petitioner is going to win any of these cases. At the risk of moving into "famous last words" territory, at least these cases won't make life worse for habeas petitioners.

I think I can some up each of them in a sentence:

Maples - even with the extraordinary facts, they aren't extraordinary enough to excuse the procedural default

Martinez - it would just be too difficult as a practical matter to create the right to the effective assistance of counsel in a collateral proceeding

Fields - it is not clearly established law that being in prison means you are "in custody"*

*Okay, that was an intentionally absurd oversimplification.  But not too far off.  Here's the more accurate sentence: it was not clearly established law that an inmate is "in custody" for Miranda purposes when police officers separate him from the general population in order to question him about a crime.

Habeas Corpus - Welcome Back, Supreme Court! - Term Preview - Edited

The Supreme Court's October 2011 Term begins this week.  And it's going to be a very active one for habeas cases.  There are already eight cases on the Court's docket.  I am really excited about a couple of those.  I also dread what the outcome is going to be in a couple others.  And at least one I don't really have much of an idea as to what it's all about.  There are also a couple front-end criminal cases of note.  So it's going to be a big term in habeasland. 

And remember, Habeas Day at the Court will be this Tuesday, when the Court intends to hear three (Maples, Martinez, Howe) of the eight.

Since I love lists, here is a list, in descending order, of this Term's habeas cases on the scale of "what I find most interesting" (in other words, 1=most interesting; 8=least interesting)  I'll note my feeling about the outcome of the case as either (a) excited; (b) dread; or (c) uninterested.

The List:

(1) Martinez v. Ryan (to be argued on 10/4)- Excited

Issue: whether a criminal defendant has the right to counsel at a state post-conviction proceeding in order to raise claims (mainly IAC) that can't be raised on appeal

I hate to swim with the current on this one, but it's hard to argue that this isn't the most interesting (and important) habeas case on the Court's docket this year.  It certainly has the greatest potential impact on criminal law.  Not as big as something like Gideon v. Wainwright (right to counsel in criminal cases) or Douglas v. California (right to counsel on appeal if indigent), but it will be the next biggest thing.  No matter which way it goes, it's going to be a fun opinion.  I'd love to see a split court here as the question may come down to how each individual Justice views the role of counsel in the criminal justice system.  Fun, fun, fun.

(2) Greene v. Fisher (to be argued on 10/11) - Dread/Excited

Issue: when is the temporal cut-off for clearly established law under 2254(d)(1)

For such a simple issue, it does seem odd that I would rank it so high.  But this case is going to have the biggest day-to-day impact on habeas cases.  And it raises abstract questions about the interplay between the AEDPA and the retroactivity rules of Teague v. Lane (i.e., whether those latter rules still exist or will the Court's interpretation of 2254(d)(1) in Greene supersede them).  Which makes me excited for this case.  But I have larger feelings of dread about it as I expect a very anti-petitioner decision here. And you can read more about my feelings of dread about this case in this article that I wrote over the summer.

(3) Maples v. Thomas (to be argued on 10/4) - Excited

Issue: whether there was cause for petitioner's procedural default based on (essentially) attorney and state court negligence

The issue in this case is not really that interesting, but the underlying facts are.  This is the case where the Big City law firm dropped the ball on petitioner's case and the state courts did absolutely nothing to straighten out the problem.  And there was so much unfairness to petitioner that it led multiple national news outlets to take up his cause.  And, around here, it led me to create (the little used, but still enjoyable) "uncommon sense meter" -- the rates cases on the scale of whether it defies common sense that some ridiculous procedural rule can allow a court to overlook an obviously unfair result.  This is a case where good facts could chip away at what otherwise is bad law for petitioners.

(4) Lafler v. Cooper (to be argued on 10/31; being heard with Missouri v. Frye)- Dread

Issue: whether a petitioner who was convicted after a trial can argue IAC based on counsel's failure to give proper advice during the plea bargaining stage of the case

This is also a case with a big potential impact on the criminal justice system.  There is plea bargaining in every case and in almost every case that eventually goes to trial, a plea offer was made at some point in the case.  Counsel is supposed to both communicate that offer to the defendant and give advice on it.  The question here is whether petitioner should be able to get any relief when counsel messes that up.  And, if so, whether any relief is available after the defendant is convicted after trial or does that conviction somehow moot out the deficient performance in the plea bargaining stage.  The fairest result here would be that a petitioner should still be able to raise the claim even after a jury verdict.  But, based on the Court sua sponte adding this particular issue to the Frye case, I have a bad feeling about where this is going.

(5) Howes v. Fields (to be argued on 10/4) - Excited

Issue: whether a prisoner, who is excluded from the prison population and questioned, is always "in custody" for Miranda purposes

I am excited about this case since it is a real substantive law habeas case.  Lafler is too, but that substantive law could be extinguished based on where the case goes.  Not this case.  It is a basic up or down vote.  I have searched my memory and I simply can't remember the last up vote on a habeas case in the Supreme Court where the final decision ended up as a grant for the petitioner.  I don't see that as the most likely outcome here.  But there is a chance for that, which gets me excited.  On the other hand, it is a cert. grant from the Sixth Circuit, and that typically means . . . bad news for the Sixth Circuit.*

*I forced my wife to watch the original Bad News Bears again the other day.  I think that is my second favorite movie of all time.

(6) Gonzlez v. Thaler (to be argued on 11/2) - Dread/Uninterested

Issue: (i) was a COA appropriate on a habeas procedural issue? and (ii) something about what date to use to determine when a petition is timely under the statute of limitations

This case kind of scares me a little.  The Court sua sponte added the COA question.  I am not sure why since the Court has already held that a COA would be appropriate in this situation.  Maybe the Court was not satisfied that the circuit court properly followed the rule in determining whether to issue a COA on a procedural issue.  I should probably look at the briefs for some guidance on that.  But there is a potential that this case could place a further restriction on habeas law.  As for the other issue, 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)

(7) Wood v. Milyard (recent cert. grant) - Dread

Issue: can a circuit court raise statute of limitations defense sua sponte*

*There's those words again.  I talk about how much I love the term sua sponte about midway through this post.

I really dislike the statute of limitations.  To be fair, a statute of limitations isn't the worst thing ever.  But the one-year one is truly oppressive.  I wish it would go away or get ameliorated (like turned into a two or three year limitations period).  But my personal feelings aren't relevant.  I don't think the federal courts dislike it too much.  And, even though it is a defense that the State can use and not a jurisdictional bar, I worry (in the extreme) that the Supreme Court will uphold a circuit court's power to do this.  In a fair world, they won't.  I mean it's typically frowned upon for an appellate court to go around raising defenses sua sponte where a litigant hasn't relied on it below.  But, of course, everything is skewed in habeasland.

(8) Martel v. Clair (to be argued 12/6) - Uninterested/Excited(?)

Issue: can court-appointed habeas counsel be replaced in a capital habeas proceeding

This case appears to boil down to a statutory interpretation issue.  And it's a statute that I am not too familiar with.  So my interest level is not high.  But maybe, just maybe, the opinion could branch out into issues that I am more interested in.  If the Court's opinion could potentially be applicable to the question of replacement of court-appointed counsel in a non-capital case (i.e. when a court grants a petitioner's motion for assignment of counsel under the "likely merit" standard), I'd be interested in that.  And, because the issue presented seems broad (although I don't think in the end that it is), there is a small chance that the Justices could once again veer off into the more abstract concept of an attorney's role in the criminal justice system.  Which could be fun.  But I won't get my hopes up.

[edited the Gonzalez paragraph for clarity]

Habeas Corpus - Habeas Win in Second Circuit

Been taking a break from blogging for awhile.  Posts are probably going to continue to be pretty sporadic for the foreseeable future.

But a decision today from the Second Circuit in Harper v. Ercole, 10-178-pr, deserves a timely post.  The Second Circuit vacated a district court dismissal of a habeas petition as untimely under the statute of limitations because (1) the petitioner had established that the limitations period should have been equitably tolled during his three-month hospitalization, and, (2) once that time is tolled, he filed his petitioner within the untolled time left in the one-year statute of limitations.  It's kind of a tricky holding to explain, so I'll get to it in a second.  Let's start with the details:

Harper v. Ercole, 10-0178-pr 

• Vacating Dismissal of Petition as Untimely
• Argued: 3/21/11; Decided: 7/26/11 Opinion by Raggi
• Panel: McLaughlin, Calabresi, Raggi
• Lower Ct. Info: 08-CV-3442, 2009 WL 4893196 (EDNY Dec. 16, 2009) (ENV) (LB)
• In Circuit: Circuit Court COA
• Issue: whether petitioner acted with reasonable diligence in filing his petition 65 days after his release from the hospital after the deadline had passed for timely filing

To help understand the holding, we need to start with the facts.

288 days into Harper's 365 day period to file a habeas petition, Harper went into the hospital for 98 days.  He filed his petition 65 days after he was released.  In real time, that is beyond the 365 days.  But if the 98 days are tolled, then it was within the 365 days he had to file the petition.  The DJ concluded that Harper did not exercise reasonable diligence after he was released from the hospital.

The Second Circuit rejected that reasonable diligence analysis.  Here's what the court held:

We now clarify that a litigant who seeks equitable tolling based on extraordinary circumstances and who establishes causation is required to show reasonable diligence in pursuing his claim throughout the period he seeks to have tolled. Once tolling ends and the limitations clock resumes, a § 2254 petition is timely as long as it is filed before the total untolled time exceeds one year.

Applying that holding to the case, the court concludes the following:

1. Harper qualifies for equitable tolling of AEDPA’s statute of limitations for the period from February 27, 2008, to June 3, 2008, because the undisputed record demonstrates that

(a) his hospitalization during that time constituted extraordinary circumstances causing him to miss the otherwise applicable May 14, 2008 deadline for filing a § 2254 petition; and

(b) Harper showed reasonable diligence in pursuing his claim throughout his
hospitalization;

2. The timeliness of Harper’s August 17, 2008 filing does not depend on him showing further diligence in the time between the end of the tolling period and that filing date, but rather on that filing being within one year of the total untolled time after Harper’s conviction became final; and

3. Because seventy-eight days remained on the limitations period when equity
suspended the statute on February 27, 2008, Harper’s August 17, 2008 filing, sixty-five days after tolling ended, was timely.

Seems like the fair and logical result to me.  Good win for petitioner.

Habeas Corpus - Cert. Grant in Habeas Case

Earlier today, the Supreme Court granted cert. in the habeas case entitled, Gonzalez v. Thaler.  I never got around to putting up a post focusing on the relist cases from last week's conference.  But in that post, the writer at SCOTUSblog predicted that this case was headed for a grant.  He was right on with the prediction.

According to the order list, here are the two issues:

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”?

Honestly, I am not sure what those mean.

So I looked at SCOTUSblog's statement of the issues.  They are a little more detailed:

1) Whether the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) - which establishes a one-year statute of limitations for a state prisoner to file a federal habeas petition, running from "the date on which the judgment [of conviction] became final by the conclusion of direct review or the expiration of the time for seeking such review" - dictates a single federally prescribed point in time when all state direct-review processes are deemed to have concluded;

2) whether AEDPA's "conclusion of direct review" occurs upon issuance of an intermediate appellate court's mandate, expiration of the time for seeking discretionary review in the state's highest court, or issuance of the intermediate appellate court's decision; and

3) whether “expiration of the time for seeking [direct] review” under AEDPA includes the ninety-day period for filing a petition for a writ of certiorari with the Supreme Court even when the petitioner forewent discretionary review in the state's highest court.

Slightly more insight, but I was still not sure what's going on here. 

So I looked at the lower court's decision, and it really is all about question 2 in SCOTUSblog's statement of issue.  If the finality date is the issuance of the mandate, the petition is timely.  If the finality date is the date upon which time to seek discretionary review ended, it is untimely.  There is a split in the circuits on that issue.

At the same time, I didn't see anything of note in the lower court's decision about the COA issue on which cert. was granted.  Here's what the lower court said as to the COA:

[W]e granted a certificate of appealability (COA) on the question of "whether [one of the court's prior decisions] has been overruled by Lawrence [v. Florida, 549 U.S. 327, 331-35 (2007)] and, if so, whether [Gonzalez’s] habeas application was timely filed.

Not sure why they can't issue a COA on that ground.  Under Slack v. McDaniel, 529 U.S. 473, 484 (2000), a COA can be granted on a procedural question under the following test:

When the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a COA should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. 

So I don't know what question (1) is all about.  Is the Court going to overrule its prior precedent in Slack?  I would typically say no, but last term shows that the Court is shifting the playing field to the right in habeas cases.  If the State is going to be seeking that Slack be overruled, then this case will be elevated to a critically important habeas case next term.

We shall know more from the briefs . . .

Habeas Corpus - Habeas Win in Second Circuit!

Before I get to the decision, I just wanted to clarify something: I have two categories of habeas victories at the appellate level.  Actually, it's more like a general designation and then a more specific subset within that larger designation.  A habeas win is the more general designation.  It includes all types of habeas victories in the appellate court -- (1) an affirmance of a grant of habeas; (2) a reversal of a denial of habeas with the appellate court ordering a grant of habeas; and (3) the more generalized, catch-all situation where the court vacates a habeas denial and remands for further proceedings.  Within the general designation of a habeas "win," there is the specific subset of a habeas grant -- numbers (1) and (2) above.  That, obviously, is a bigger deal.  If there is a win that falls in that specific subset, I call it a "habeas grant."  If there is a victory that falls into category (3), I describe it as a "habeas win."

With that out of the way, yesterday there was a "habeas win" out of the Second Circuit.  In a per curiam opinion in Dillon v. Conway, the Second Circuit vacated a lower court decision dismissing a habeas petition as untimely, concluding that the petitioner had established equitable circumstances to justify the filing of an untimely petition.  It's a short, but sweet decision.

And now here's something funny (or maybe just a tiny bit comical).  I wrote that initial paragraph yesterday.  I am not sure exactly what motivated me to do it.  I think I just felt that I may have been using the different terms without really explaining what I meant.

Then, today, the Law Journal had an article about the decision with the following headline: "Habeas Petition is Granted Despite Lawyer's Missed Deadline." (emphasis mine) 

Funny, right?  It's obviously not a habeas grant.  But it is a habeas win.  Now I am very happy I took the time yesterday to explain the difference. 

Now, let me talk about the actual decision.  First, the details:

Dillon v. Conway, 08-4030-pr

• Vacating Denial of Habeas
• Argued: 4/6/1; Decided 4/25/11; Per Curiam Opinion
• Panel: Winter, Cabranes, Lohier
• Lower Ct. Info: 07-CV-10728, 2008 WL 2971986 (SDNY Aug. 15, 2008) (GBD) (DFE)
• In Circuit: Cir. Ct. COA
• Issue: whether appellant was entitled to equitable tolling of the one-year statute of limitations period

ANALYSIS: As the MJ stated in his R&R, this case concerned a "'heartbreaking'" series of events that led up to petitioner's petition being filed one day late.  I won't go through all of it here, but suffice it to say that petitioner did everything that he could to ensure that his petition was timely filed.  Unfortunately, his attorney dropped the ball. 

What it came down to is this: petitioner's attorney miscalculated the day on which the petition should be filed.  He believed that they had until November 30, 2007, to file the petition.  Petitioner and his wife essentially begged and pleaded his attorney not to wait until that day to file the petition, but to do it earlier.  The attorney assured petitioner and his wife that he would do that.  Instead, the attorney waited until the last day and filed it one day late.

The Circuit considered this a "close case," but believed that these facts justified equitable tolling of the statute of limitations under the recent Supreme Court decision of Holland v. Florida.  The court stated that petitioner had been diligent in pursuing his rights, the first requirement of Holland.  It further concluded that these facts represented an extraordinary circumstance justifying tolling.  The court stated:

Although miscalculating a deadline is the sort of garden variety attorney error that cannot on its own rise to the level of extraordinary circumstances, . . . Dillon’s case involves more than a simple miscalculation. [His attorney] in effect admitted affirmatively and knowingly misleading Dillon by promising him that he would file the petition before November 30, 2007. . . . [His attorney] breached that promise when he failed to follow his client’s instruction, with disastrous consequences that Dillon could neither have foreseen nor prevented.

Some quick notes: First, I always wonder what the percentage is of Circuit Court COA's that eventually lead to a "habeas win."  Does the court become more invested in a case when it grants a COA?  I am just not sure what the numbers are.  Could be a good research project.

Second, according to my research (and memory), I believe that this is the first published opinion in a habeas case in which Lohier took part.  Pretty good start.

Habeas Corpus - Case Added to Second Circuit Page

Upon a review of the upcoming Second Circuit calendars, I noticed a habeas case absent from the Second Circuit Cases page.  It has now been added.  Here are the details:

Dillon v. Conway, 08-4030-pr

• Argument Date: 4/6/11
• Lower Ct. Info: 07-CV-10728, 2008 WL 2971986 (SDNY Aug. 15, 2008) (GBD) (DFE)
• In Circuit: Cir. Ct. COA
• Issue: whether appellant was entitled to equitable tolling of the one-year statute of limitations period