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Lawrence v. Florida and the Status of Cert Petitions:
Is a cert petition in the U.S. Supreme Court seeking review of a state court judgment part of the "state" review process, or is it a federal proceeding? Today the Supreme Court divided 5-4 on this interesting question of statutory interpretation in Lawrence v. Florida. Justice Thomas wrote the majority opinion, joined by Roberts, Scalia, Kennedy, and Alito. Justice Ginsburg dissented, joined by Stevens, Souter, and Breyer.

  The case involved the time for filing federal habeas petitions after state courts deny state habeas relief. Defendants get one year to file their petition, although that period is "tolled" — that is, put on temporarily hold — during the following circumstances:
The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.
28 U.S.C. 2244(d)(2).

  The question in the case was whether the filing of a petition for certiorari in the U.S. Supreme Court counts as "a properly filed application for State post-conviction or other collateral review." The defendant in the case was denied state habeas relief and then filed a petition for certiorari in the U.S. Supreme Court. He then waited a few months before filing his habeas petition in the U.S. District Court. By the time he filed in the U.S. District Court, more than a year had passed since the state court had denied review. The question is, does 28 U.S.C. 2244(d)(2) toll the 1-year statute of limitations while the defendant seeks review in the U.S. Supreme Court?

  In a majority opinion by Justice Thomas, the Court concluded that it does not. Review in the U.S. Supreme Court is not part of "State post-conviction or other collateral review," as it is not part of the state processes at all. It is a separate federal proceeding seeking relief in federal court, not a state proceeding seeking relief in state court. Further, certiorari review is optional to prisoners and not part of the statutory exhaustion process for filing claims.

  Justice Ginsburg's dissent took a different approach. In her view, review in the U.S. Supreme Court is part of "State post-conviction or other collateral review." U.S. Supreme Court review is sufficiently tied to state habeas proceedings that it is a part of that process; it's sort of a continuation of the state process, albeit technically before a federal court. Thus the State review process is still "pending" when a prisoner seeks U.S. Supreme Court review of state judgments.

  After reading the statute and the materials for the first time, I find the majority view much more persuasive. It seems pretty clear to me that a cert petition in the U.S. Supreme Court is a federal process rather than some sort of a 'continuation' of a state procedure. It's true that this will prompt many state habeas petitioners to file two petitions at roughly the same time, one seeking certiorari review (usually a "hail mary" pass) and one filed in the district court. But I don't see why this is much of an objection: the alternative is for counsel to file the first, wait a few months until it is rejected, and then file the second as a matter of course. Justice Ginsburg suggests that this would create "anomalous" and "bizarre" questions of jurisdiction in the district court in the rare case when the Supreme Court grants the petition for certiorari. But as the majority suggests, this rare case would seem like a natural candidate for equitable tolling (a point that Justice Ginsburg acknowledges but doesn't answer).

  In any event, it's an interesting case.
Equitable tolling (mail):
Orin,

A quibble with your post. It's not correct to say that Justice Ginsburg didn't respond to the equitable tolling point. Rather, she correctly pointed to the inconsistency of the majority's reliance on equitable tolling while pointedly (in this case as well as in others) refusing to explicitly declare that equitable tolling exists for AEDPA.

Indeed, whether equitable tolling exists under AEDPA is probably a more important question than the one SCOTUS decided today. Presumably Ginsburg, by highlighting the majority's reliance on the existence of equitable tolling in this case, is trying to box the majority in so they can't later disclaim the existence of equitable tolling.
2.20.2007 1:33pm
OrinKerr:
ET,

I thought Ginsburg's response was the following:
Though recognizing this problem, the majority suggests that equitable tolling may provide a solution. But in the next breath, the majority hastens to clarify that the Court does not hold that equitable tolling is available under AEDPA. Ante, at 7--8, and n. 3.8
But there's nothing inconsistent about what the majority did. Ginsburg was making a policy argument about how the law would work under the majority's view, and the majority responded with other policy agruments and noted that the alleged problem Ginsburg identified "may well be cured" given the possibility of equitable tolling. I don't know why that's inconsistent.
2.20.2007 1:44pm
Christopher M (mail):
I don't think the majority's position is especially convincing from a textual perspective. Everyone agrees that a cert petition is "direct review." They seem to be focused on whether a cert petition is state relief, but that isn't the question -- it's whether the state proceeding is still "pending." And it seems natural to me to say that a proceeding is still pending while it's on direct review, even if that review happens to be in a different jurisdiction because of our federal system.

From a policy perspective, the majority's opinion probably makes sense, though. Habeas petitions take long enough anyway.
2.20.2007 1:53pm
OrinKerr:
Christopher M,

But what state proceeding is pending? The only proceeding that is pending is a case in federal court, right?

Imagine a civil plaintiff files a case in state court, the defendant removes to federal court on diversity grounds, and then the federal court dimisses the action and sends it back to state court. Would you say that a state proceeding was pending that entire time (or that a federal proceeding was pending the entire time)? Or would you say that a state procedding was pending, then a federal proceeding, and then a state proceeeding? I would think the latter.
2.20.2007 2:05pm
Falafalafocus (mail):
I have to disagree with Christopher on this one. Although a cert petition may be "direct review" and a case that started in the state court may remain "pending" when SCOTUS is considering cert review, SCOTUS cannot review the case and provide relief if there is an independent state ground. SCOTUS (or the federal district court for that matter) can grant relief if there is a proper federal constitional allegation, but it is entirely possible that the relief sought would ba state based rather than federally based. In that circumstance, tolling the time for the cert petition would be rewarding the appellant for filing an unwinable motion and for filing a petition simply to keep a case "pending" where relief is impossible. It would be better in that circumstance to just file with the federal district court and cut out the middle man.
2.20.2007 2:09pm
rothmatisseko (mail) (www):
Prof. Kerr, for the dissenters the issue is not whether, as you put it, a "state proceeding is pending," but rather the application for relief from a state conviction and/or sentence has been "finally decided." Dissent at 3.
2.20.2007 2:28pm
Kovarsky (mail):

in the interest of full disclosure, i have been very involved in formulating these tolling arguments in several of these cases. that being said, i think you've fallen for something thomas did that was very tricky.

thomas casts the issue as being whether the statute tolls during the pendency of "State post-conviction or other collateral review."

you repeat that in your post. but that's not what the statute says. the statute says that the limitations period is tolled while an "application for state postconviction or other collateral review" is pending.

in other words, the statute doesn't make tolling contingent on the pendency of state proceedings; it's contingent on the pendency of a state application. the application doesn't cease being a creature of state law just because it's pending before the supreme court on cert.

also, the reliance on carey is preposterous. that quotation was a complete afterthought - it's textbook dicta; the court wasn't thinking at all about this situation.

also, the bit about fusing the limitations bar to the exhaustion requirement is wrong. senator specter introduced a bunch of proposals that made the trigger date in 2244(d)(1)(A) do just that, but they took out that linkage in conference.

finally, the point about 2244(d)(1)(A) having "different language" than 2244(d)(2) is also misleading. the two refer to different temporal phenomena. the trigger date is a discrete moment in time; the tolling period is an interval. hence 2244(d)(1) specifies a date certain, and 2244(d)(2) talks about when the state application is pending. in fact, earlier versions of s.735 and s.623, and the corresponding predecessor bills in earlier congresses, had some provisions that cut the tolling period off before the cert period, but that language was removed.
2.20.2007 2:34pm
Christopher M (mail):
Orin,

You are right that the only proceeding that is pending is in federal court, but that's not the issue, textually. The case is still an "application for State post-conviction or other collateral review" -- it just happens to be in a federal court at the moment because we have a slightly odd system in which a federal court hears state cases. The Supreme Court on a cert petition is considering, after all, whether state relief should have issued. So it's different from the removal situation, where (while the case is in federal court) the question is whether federal relief should issue.

Ultimately though, the idea that there's a correct answer as a formal matter seems like inappropriate
reification of legal concepts. "Pendency" is an abstraction, and whether or not a state postconviction proceeding is pending as a matter of federal law while there's a cert petition up in the air was indeterminate before (putting aside circuit law settling the question within certain circuits); now we know the answer. That's why I mentioned that the decision seems right as a policy matter. I would guess that if Justice Breyer had agreed on the policy, he'd have written a separate concurrence making the policy argument explicitly, and that would have been the best opinion of all.
2.20.2007 3:05pm
Kovarsky (mail):
the other issue that was pressed that the court was concerned with at oral argument, but that does not appear in the opinion, is what happens when the Court hears a case on cert from state postconviction (yeah right, like they ever do that) and then they remand it. under thomas's interpretation, it goes from not pending back to pending on remand.
2.20.2007 4:07pm
Kovarsky (mail):
Chris M.,

Is your argument just that policy trumps text?
2.20.2007 4:08pm
Kovarsky (mail):
falafel...

but it is entirely possible that the relief sought would ba state based rather than federally based. In that circumstance, tolling the time for the cert petition would be rewarding the appellant for filing an unwinable motion and for filing a petition simply to keep a case "pending" where relief is impossible. It would be better in that circumstance to just file with the federal district court and cut out the middle man.

if they're only appealing state claims "independent grounds" then they're not entitled to federal habeas relief, which requires a violation of federal law. the statute of limitations doesn't matter - there's no jurisdiction. am i missing something?
2.20.2007 4:11pm
OrinKerr:
rothmatisseko,

Yes, that's the issue as framed by the dissenters. But I don't find that a persuasive reading of the statutory text.

Christopher M,

Do you agree that "State" modifies "collateral review"? And I gather you agree that the issue in federal court is only whether the states violated federal law, not whether the state law was violated, right? So in that sense the state issues are not before the U.S. Supreme Court?
2.20.2007 4:17pm
Justin (mail):
I think the dissent clearly has the best argument. The referenced text in AEDPA has nothing to do with what is "federal" vs "state," but between "pending," and "final." Along with, but not simlpy because, of the bizarre results and difficult choices presented to prisoners seeking habeus under this reading, the obvious reading is that a State proceeding becomes final when either the Supreme Court has either denied cert, or that cert has lapsed.

On the bright side, the Supreme Court is now bound to the idea that petitioning for cert is not required for "exhaustion," a somewhat scary possibility that might (but shouldn't) exist under the dissenter's interpretation.
2.20.2007 4:29pm
Justin (mail):
Orin, you write:

"Yes, that's the issue as framed by the dissenters. But I don't find that a persuasive reading of the statutory text."

Can you explain why? References to the policy and purpose of the text would be preferred, whether that involves looking at the statuory history or not - I'd be more convinced if someone defended the majority's opinion by "deep textualism" rather than "shallow textualism."
2.20.2007 4:31pm
Kovarsky (mail):
orin,

to the extent the statute tolls the period during the pendency of the application for state review, not during the pendency of state review itself, what is unpersuasive?

your explanation:

It is a separate federal proceeding seeking relief in federal court, not a state proceeding seeking relief in state court. Further, certiorari review is optional to prisoners and not part of the statutory exhaustion process for filing claims.

seems to assume the latter interpretation-that pendency is predicated on state proceedings rather than the litigation of a state application.
2.20.2007 4:35pm
Kovarsky (mail):
last thing: thomas really blows the comparison between 2244(d)(2) and 2263(b)(2). he reasons that:

"[A]lthough he correctly notes that the language in 2263 differs from the language of 2244(d)(2), it is clear that the language used in both sections prvoides that tolling hinges on the pendency of state review."

2244(d)(2) says, "The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection."

2263(b)(2) says "(2) from the date on which the first petition for post-conviction review or other collateral relief is filed until the final State court disposition of such petition."

Thomas basically says, o well, even though the langauge is different, they basically meant the same thing. That's not true. 2263 is part of an "opt-in" regime for states that provide competent counsel during capital postconviction proceedings. Everyone under 2263 is on death row. 2263 is a Powell Committee recommendation, which was specifically tasked with reducing sentencing delays for capital prisoners. Capital prisoners have a unique incentive to delay their sentence, wheras noncapital prisoners want to end litigation as soon as possible. THAT is the reason for the different wording; the statute is stricter as to capital prisoners because those prisoners have an incentive to delay final imposition of punishment.

Wheras he gives the "o well the wording is basically the same" response to the 2244(d)(2) v 2263(b)(2) comparison, he thinks the different wording between the tolling and trigger provisions in 2244 is of the utmost importance - even though - as i explained above - the two represent different temporal phenomena. 2244(d)(1)(A) is a discrete moment in time; 2244(d)(2) is an interval.

in fact, when these bills starting coming through the senate in the early 1990's, 2244(d)(1)(A) actually pegged the trigger date to the date remedies were exhausted. the wording of the tolling provision was the same as it is now. congress changed the wording of 2244(d)(1)(A) from an exhaustion condition to a finality condition - it had ABSOLUTELY nothing to do with some conscious choice about cert review as between the trigger and tolling provisions.
2.20.2007 4:52pm
Markusha:
While I usually agree with Professor Kerr, I respectfully disagree with his analysis. As Kovarsky points out, the statute is drafted to reference application pending, not the proceedings pending .

In addition, one point that I think is not being raised here: this is the death penalty case. Admittedly, a reasonable argument can be made for both the majority's and the dissent's positions. Why take away from the defendant one of the few chances he has to save his life?
2.20.2007 6:44pm
AF:
Orin: Do you agree that "State" modifies "collateral review"? And I gather you agree that the issue in federal court is only whether the states violated federal law, not whether the state law was violated, right? So in that sense the state issues are not before the U.S. Supreme Court?

Consider a petition for a writ of habeas corpus filed in state court pursuant to a state habeas statute but based solely on issues of federal law. Surely you would agree that it is covered by the statute while it remains in state court. Now the same petition goes on direct review to the U.S. Supreme Court. It is still "pending." Why does it cease being an application for state collateral relief?
2.20.2007 6:57pm
Kovarsky (mail):
this is a nice example of when supposed textualists are not quite so textualist.
2.20.2007 7:05pm
DaveN (mail):
Like Kovarsky, I practice in the arcane world of federal habeas corpus. Unlike him, I practice on the government's side.

That said, I generally agree with him on this issue. While I like the result as a habeas practitioner, were I a Supreme Court Justice, I would interpret the statute to toll the statute of limitations while a certiorari petition is pending if certiorari is sought following state post-conviction litigation. If certiorari is not sought, then the statute of limitations should start running when the state supreme court divests itself of jurisdiction through mandate, remittitur, or whatever its mechanism might be called.

Another interesting issue is what happens if the petitioner prevails in the state appellate courts and the State seeks certiorari, has it granted, and the State ultimately prevails in the Supreme Court? Assume further that the petitioner has other issues to present that he lost on in the state courts. What happens to him, particularly if the Supreme Court ultimately concludes that there is no such thing as equitable tolling?
2.20.2007 7:36pm
Just Dropping By (mail):
"In addition, one point that I think is not being raised here: this is the death penalty case. Admittedly, a reasonable argument can be made for both the majority's and the dissent's positions. Why take away from the defendant one of the few chances he has to save his life?"

I agree, that struck me as well. It seems very bizarre that, given the American Pipe tolling rule, an individual civil litigant who is within the scope of a putative class action has less of a burden to preserve their rights than a criminal defendant subject to the death penalty.
2.20.2007 7:55pm
JGR22:
If you disagree with Professor Kerr, kindly answer these 2 questions -- (1)where is this application pending while the cert petition is before the court, and (2) at what point does the application cease to be pending?

As to (2), the application is certainly not pending before the state courts, as they already will have issued a final order denying the application. Also, it is not pending before the Supreme Court, as the only thing pending before the Court is the cert petition. The only way out of this mess is to argue that the application is pending in some theoretical sense because of the indeterminacy of the application in light of the possibilty of Supreme Court action requiring the state court to reconsider its earlier rulings. This runs into a problem with question (2).

As to (2), if the key to understanding the "pendency" of the application is its indeterminate state, it makes no sense to toll the statute of limitations when there is no cert petition filed, nor any intention of so filing. Nevertheless, Lawrence argued that the statute of limitations should be tolled until completion of cert review, or the time allotted therefore.

Such an argument could only rest on policy grounds, and in light of the fact that the statute in question was AEDPA, which by all accounts was meant to streamline the habeas appeal process, it makes no sense to read in a tolling period that is not required (or even logical) by its text. Sure, AEDPA was not meant to prevent valid claims from being raised, but the interpretation by the majority does no such thing. If a defendant wants to file a cert petition, he or she can. The only thing this case makes clear is that federal law will not subsidize and encourage frivolous claims by tolling the statute of limitations during this time. Sounds reasonable to me.
2.20.2007 8:36pm
allwrits (mail):
All today do is prove: (1) why Finley &Giarratano are such utterly bad law; &(2) why the AEDPA should be taught in every state &federal statute drafting course around of what not to do when writing a statute.
2.20.2007 8:48pm
allwrits (mail):
Umm, sorry for the butchery of the English language in that last post.
2.20.2007 8:49pm
DaveN (mail):
allwrits:

Finley? I assume you are referring to Pennsylvania v. Finley, 481 U.S. 551 (1987). And why Murray v. Giarratano, 492 U.S. 1 (1989)? Both are Pre-AEDPA cases that hold there is no right to effective counsel in collateral proceedings.

I am not trying to be dense, but I do not see their relevance in this disucssion about Lawrence v. Florida and the AEDPA statute of limitations.
2.20.2007 9:25pm
Justin (mail):
(1)where is this application pending while the cert petition is before the court - The Supreme Court of the United States. I sort of see what you're getting at, but you're completely missing the point of the dissenters.

2) at what point does the application cease to be pending? - as I mentioned above, either when the time to file a cert petition has lapsed, when the cert petition has been denied, or when the Supreme Court has affirmed the state's highest court.
2.20.2007 10:00pm
OrinKerr:
Justin,

The reason is that "State" means "State." There are federal proceedings and there are state proceedings, and proceedings in the U.S. Supreme Court are not state proceeeings. Sorry if this isn't sufficiently sophisticated, but when it comes to statutory interpretation I just read what Congress wrote. If Congress wants to rewrite it and be more sophisticated, it is certainly free to do so.
2.20.2007 10:22pm
David Krinsky (mail):
Orin--

Of course "State" means "State." The problem is that "State" doesn't modify "application," it modifies "post-conviction or other collateral review," but the subject of "is pending" is "application." Thus, the question is whether an "application for State . . . review" is pending, not whether "State . . . review" is pending.

Even though a cert petition is not a state proceeding, the case is nonetheless still an "application for State post-conviction or other collateral review," and it is still pending. (The statute doesn't say "pending in State court," it just says "pending." The key point here is that the "application" is the case, and it's the same case on petition for a writ of certiorari.)

The best counterargument I see would be to argue that a petition for a writ is not the same "application." But by that token, a state-supreme-court-level petition for certiorari (in the many states whose high courts have discretionary jurisdiction) wouldn't be the same "application" either, and the question would become whether such petitions are "applications for State collateral review" or merely "application for State direct review of a judgment denying State collateral review."
2.21.2007 12:15am
OrinKerr:
David,

I disagree, of course. Let's imagine three different version of the statute, and (if you're game) I'd like you to tell me what types of proceedings you think would trigger the tolling of the statute of limitations. Here's the first version:
The time during which a properly filed application for State or Federal post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.
Here's the second version::
The time during which a properly filed application for Federal post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.
And here's the third version::
The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.
2.21.2007 12:27am
Kovarsky (mail):
The reason is that "State" means "State." There are federal proceedings and there are state proceedings, and proceedings in the U.S. Supreme Court are not state proceeeings. Sorry if this isn't sufficiently sophisticated, but when it comes to statutory interpretation I just read what Congress wrote. If Congress wants to rewrite it and be more sophisticated, it is certainly free to do so.

Orin, the statute doesn't say "pending in state proceedings." It talks about the pendency of a state application. You might argue that "pending" does not include cert., but that's not a "sorry tough luck that's what the statute says" kind of argument.
2.21.2007 1:28am
Kovarsky (mail):
Orin,

The time during which a properly filed application for State or Federal post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.

any postconviction petition, state or federal. this model provision (like the one at issue in lawrence) does not specify the forum in which the proceedings have been pending.

The time during which a properly filed application for Federal post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.

You could obviously read this one of two ways. either it tolls the statute of limitations only for federal petitions, or for both federal and state petitions. the reason "other" was included in the actual statute was that not every state collateral proceeding is a "habeas" or a "postconviction" proceeding. other does not refer to a federal postconviction proceeding (Duncan v. Walker). This is the most ambiguous statute, but i don't think a court would use noscitur here, and "other" is going to be treated as though it means "state." although one would wonder why congress would say "other" when it could easily have said "state."

The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.

Duncan has already decided this issue (correctly, I think). "state" is distributed to other collateral review. so, for instance, where a petitioner files a federal petition on an unexhausted claim, that period does not toll the SOL.

You know I very much respsect your thinking on these things, but I have to admit that I'm baffled why you think this is a "plain meaning" case. The statute just says "pending;" it does not say "pending in state court." maybe you can fairly read pending to imply "pending in state proceedings," but the statute certainly doesn't say that.

as I said, I'm not a disinterested party, so maybe I'm being willfully blind to something here. and maybe i misesd one of your posts, but I don't understand why we're reading "in state proceedings" as part of the plain meaning of "pending." on my read, state modifies application, not the proceedings in which the app is pending.
2.21.2007 1:42am
Kovarsky (mail):
David,

The best counterargument I see would be to argue that a petition for a writ is not the same "application." But by that token, a state-supreme-court-level petition for certiorari (in the many states whose high courts have discretionary jurisdiction) wouldn't be the same "application" either, and the question would become whether such petitions are "applications for State collateral review" or merely "application for State direct review of a judgment denying State collateral review."

This is Roberts' point during oral argument. I thought if the case was going to come out in favor of florida, this would be why. Of course there are very practical problems with this, I think. The most notable of which is that on remand after a cert grant, if it is a different application then it would have to be treated as a successive petition, no?
2.21.2007 1:48am
Kovarsky (mail):
JGR22,

Your intutition - that an application can't be pending unless you can identify the court before which it is pending - is clever, but it's basically been rejected in Carey v. Saffold. In that case the court ruled that 2244(d)(2) tolled the SOL in california's system, where you do not "appeal" postconviction applications, but instead file new petitions at every level of the state court hierarchy. during the period in between the final decision of a trial court and an original petition in the state appellate court, the state postconviction application is - quite literally - not "pending" before any specific court. The Court tolled the statute of limitations anyways. That suggests that an application may be pending even if you can't identify the court before which it is pending.
2.21.2007 1:55am
AF:
Orin, to answer the question you asked David: under the first statute any application filed in state or federal court tolls the SOL, under the second any application filed in federal court, and under the third any application filed in state court. Under all three, the SOL is tolled as long as the application is pending, ie, under direct review, including a writ of certiorari to the US Supreme Court.
2.21.2007 1:59am
OrinKerr:
Lee,

Maybe I just lack the understanding of this area of law that you have; I have never read these statutes until today. But it does seem pretty plain to me. To be clear, I have no idea whether I like the rule; the rule might be terrible, and maybe I would vote against it as a legislator. But I find the majority's reading much more persuasive than the dissent's.
2.21.2007 2:06am
OrinKerr:
AF,

Perhaps it just seems obvious to me that a cert petition is not some sort of an extension from a state proceeding. I've spent more time than I would ever want reviewing them, and I never thought of them as "extensions" or "continuations" that were related to the lower court proceedings. Rather, they always seemed to me to be entirely separate birds, reviewed under separate standards by a separate court that is a separate sovereign when the state court was completely done with the matter below. Maybe that's why I see the majority view as more persuasive, as it adopts the view of cert petitions that resonates with that.
2.21.2007 2:12am
JGR22:
Kovarsky:

With regards to Carey v. Saffold -- based on the odd way in which California handles state postconviction proceedings (requiring new petitions rather than appeals), it makes perfect sense to treat the application as pending because, for all intents and purposes, it is still pending. Because California allowed for the refiled petitions at each level, the trial court's denial of state postconviction relief was no more final than a trial court's denial in a state that allows for appeal - in either case, the defendant must take the affirmative step of appealing or refiling, otherwise the lower courts determination will stand. Thus, the period tolls during the period necessary to exhaust claims in state court--whether that be by refiling (in CA) or appealing (in most states). The tolling period is meant to encourage exhaustion (as is required under AEDPA), thus where claims have yet to be exhausted, like in Carey, the tolling period is properly still running.

In Lawrence, however, the state had issued its FINAL order DENYING the application. The defendant already exhausted his/her claims in the state courts (cert review is not part of state exhaustion), thus there are no further interests to be furthered by tolling the AEDPA statute of limitations during cert review. To the extent that the defendant has legitimate federal claims, nothing is stopping him/her from filing for cert. AEDPA will just not make such a practice routine for frivolous claims, which is what would happen if the statute of limitations was tolled during that period.
2.21.2007 7:01am
Justin (mail):
Orin, for the reasons that Kovarsky and I have previously stated, your argument is pretty weak in my view. It is "shallow textualism" at its finest - taking the text out of context to reach an absurd result, which (in the cases of some of the Justices, not yourself) happens to align with their political preferences.
2.21.2007 9:40am
Kovarsky (mail):
jgr22,

In Lawrence, however, the state had issued its FINAL order DENYING the application. The defendant already exhausted his/her claims in the state courts (cert review is not part of state exhaustion), thus there are no further interests to be furthered by tolling the AEDPA statute of limitations during cert review.

although I think this is besides the point for textualist reasons i give below, there are perfectly good reasons to toll the statute during the cert period. first off, "finality" matures only after the cert period in many contexts (2244(d)(1)(A), the trigger provision, is a statutory neighbor to the tolling provision that illustrates this nicely). second, every piece of research we've ever done shows that part of the reason there's so much delay in the state postconviction process is that there's no right to counsel there. there's a constitutional right for any direct proceedings, and a statutory right to federal postconviction counsel, but no analogous right for prisoners in state custody challenging their convictions collaterally under state law. in other words, they don't have a lawyer on cert. also, you seem to be forgetting that the standards that would apply for reviewing a case on state postconviction review are different from those in a 2254 petition. when you're tlaking about the latter, you have to deal with the draconian "clearly established federal law" language that, if you believe many appellate panels, apparently means "construe every procedural ambiguity against petitioners." my point is just that it does not follow from "exhaustion" that there are "no further interests" in tolling the SOL during postconviction review cert. i could go on and on, but i'm already paranoid that i'm monopolizing the thread.

To the extent that the defendant has legitimate federal claims, nothing is stopping him/her from filing for cert. AEDPA will just not make such a practice routine for frivolous claims, which is what would happen if the statute of limitations was tolled during that period.

this is sort of naive. they now have a finite amount of time to file both their cert petition and their 2254 petitions and, given that these people do not have a right to counsel on state postconviction review, the resources to do both simultaneously are frequently not available. you seem to be assuming that the rule will disable only "frivolous" cert filings, wheras meritorious ones will proceed undaunted. i'm not clear on what basis you make that assumption, but without further explanation i'm not sure why that is true.

all of this is besides the point to me, because - like orin - i think the text is pretty clear; but unlike orin, i think it's clear in the other way:

(1) is this a state petition for postconviction relief (yes)

(2) is it pending (forget about properly filed for a minute)

the answer to (2) is the greyer area, but you would assume that since elsewhere in AEDPA congress showed that it is capable of specifying that the postconviction cert period is to be excluded from a tolling rule, they probably didn't mean to do it sub silencio here.
2.21.2007 10:01am
Dave N (mail):
As interesting as this discussion has been, the reality (based on my experience as a habeas practioner with 10 years experience) is that cert. petitions are extremely rare in non-capital state post-conviction proceedings.
2.21.2007 11:42am
Kovarsky (mail):
Dave N,

Of course they are; those in state custody are not entitled to counsel for that part of the process. those guys don't know what the hell a cert petition is.

And the reason they're rare in noncapital cases (Lawrence was capital) is that in noncapital cases the Supreme Court does not have its "antaennae up," so to speak. They're content to just let the noncap cases go to district court.
2.21.2007 12:27pm
OrinKerr:
Justin,

Of course, given that I find the majority's view more persuasive, I have that same take about the dissents. And I'm curious: Do you "happen" to like the dissenters' rule better than the majority's?
2.21.2007 12:32pm
Justin (mail):
Well, I do happen to think the result is better from a policy standpoint (for the reasons that Kovarsky pointed out earlier). But textualism, not pragmatism, is supposed to be the approach that is insusceptable to "looking into a crowd to find a friend."

The problem I had with the majority's opinion is that its very shallow textualism - focusing on one word, removing it not only from the context of a whole statute, but even from the very paragraph the word exists. Scalia, amongst others, has sharply criticized that approach to textualism. Nor can any other approach - use of legislative history, structuralism, pragramtism, etc. - support the majority's conclusion.

I tried to make it pretty clear that while I question the motives of the majority (because they use their own favored approach in a way that at least some of them have seriously riticized), I specifically stated that I had no problems with your motivation, and think that you are sincere, if incorrect, in your view of the statutory interpretation question.
2.21.2007 1:19pm
neilalice:
I'm with DaveN and Orin. Unlike the relatively common cert petition following direct appeal, cert petitions after state collateral review (i.e. the bonus round), are very rare unless you're trying to keep a death-row inmate alive. And I thought it was tactful for Thomas to omit that every single single circuit agrees with him.

Kovarsky makes a couple of points that suggest the dissent isn't completely wet, though I'm still not sure why the court took this case. I think Kovarsky wants the statute to read the "time during which a properly filed _federal_ application for State post-conviction" review is pending. But this strikes me, and I think Orin too, as a nonstarter because no federal court has the power to grant state relief. At best, the Supreme Court can grant federal or constitutional relief and send the case back to a state court (which I hope would reopen the last state proceeding so as to avoid successive-petition issues).
2.21.2007 1:20pm
DaveN (mail):
Kovarsky,

You are right--and even in capital cases the granting of certiorari in state post-conviction cases is rare, though Justice Ginsberg did cite two in her dissent.

My point is that this case will not have much far reaching effect in habeas corpus unlike, say, Mayle v. Felix, which held that the habeas statute of limitatins is to be applied on a claim-by-claim basis.
2.21.2007 1:26pm
neilalice:
At the risk of running off topic, I also disagree with Kovarsky's point that the lack of counsel is the cause of death-penalty delay. Delay is the point in and of itself. Every day of delay is another step in turning an execution sentence into a life -- strike that -- death-by-natural-causes sentence.

Lack of counsel may, however, contribute to the rarity of cert petitions following state collateral review. But this isn't really a problem because nearly every issue that would attract Supreme Court attention is better presented on state direct review. The only places where state collateral review provides any use is when (1) the government hid or covered-up evidence (where even a lawyer will be overmatched) or (2) the previous defense counsel was ineffective.

Defense lawyers, moreover, are a lot better than they get credit for. Their bad rep stems largely from the fact that the strongest appellate argument in most criminal cases is to blame the lawyer -- simply because our system does not permit the defendant to blame the jury.

Defense attorneys have the opposite problem that is often attributed to Congress: Where most people criticize Congress, but like their individual representative, most people like defense lawyers, but criticize the particular counsel in the particular case.

Back to Lawrence: Did he have effective counsel? What was his trial attorney supposed to do with a guy who, with his wife's help (sounds like premeditation to me), bludgeoned someone with a baseball bat and pipe? I'd think that any DNA evidence would've come from the victim.

What about Lawrence's post-conviction counsel? Someone certainly was negligent for missing the federal statute of limitations, right? Or maybe not seeing as how four Supreme Court justices aren't so sure. Either way, Lawrence got an extra-term reprieve.
2.21.2007 1:30pm
rothmatisseko (mail) (www):
"Lawrence got an extra-term reprieve."

In fact, Mr. Lawrence will have no federal habeas to review his death sentence. There's no reason the SCOTUS couldn't have avoided this fundamentally unfair consequence by equitably tolling this one-off case.
2.21.2007 2:50pm
Kovarsky (mail):
neilalice:

And I thought it was tactful for Thomas to omit that every single single circuit agrees with him.

You are incorrect. The Sixth does not. The case is en banc, Abela v. Martin. It is also, incidentally (but not coincidentally), by far the most comprehensive discussion of the subject.

where is this little canard getting passed around?
2.21.2007 3:53pm
Kovarsky (mail):
neiliance:

Lack of counsel may, however, contribute to the rarity of cert petitions following state collateral review. But this isn't really a problem because nearly every issue that would attract Supreme Court attention is better presented on state direct review. The only places where state collateral review provides any use is when (1) the government hid or covered-up evidence (where even a lawyer will be overmatched) or (2) the previous defense counsel was ineffective.

talk about giving with one hand and taking back with the other. brady violations and IE claims consume the overwhelming majority of postconviction review. you make it sound like they're minor afterthoughts.
2.21.2007 3:55pm
Kovarsky (mail):
Defense lawyers, moreover, are a lot better than they get credit for. Their bad rep stems largely from the fact that the strongest appellate argument in most criminal cases is to blame the lawyer -- simply because our system does not permit the defendant to blame the jury.

no doubt this is true. in fact, much of the time the problem with limitations is that the state is so uncooperative (try making a freedom of information act request for, say, juror cards in texas) and see how long it takes you to wrangle that evidence away. now, the big point - state offenders don't have a right to counsel on collateral review, so i'm not sure what the quality of representation has to do with limitations, other than the lack of state offenders' ability to get it.
2.21.2007 3:59pm
neilalice:
Hmmm. My mistake, Kovarsky, and apologies, re: Abela v. Martin. I'll have to work on my Shepardizing.

And I didn't mean to suggest that Brady or Strickland cases were undeserving of attention. But they tend to involve fact-specific issues upon which the law is relatively settled. Combine this was the relatively few reported state collateral-review decisions, and a cert petition is an extraordinary longshot. Most folks, represented or not, reasonably do not bother.

How come the jury cards aren't in the trial record or voir dire transcripts? Why isn't a trial objection (and direct appeal) sufficient to preserve and raise this?
2.21.2007 8:24pm
DG:
Please correct me if I'm wrong, but doesn't the habeas application (the "application for State post-conviction or other collateral review") technically remain before the state trial court during all of the appellate proceedings? The state apellate courts just review the trial court's judgment; they do not actually grant or deny the application. Notices of appeal and cert. petitions are not the same as habeas applications.

If this is true, it seems to me that the much more important question is whether the application is still considered to be pending while the state appellate courts review the trial court's judgment. Good arguments could probably be made on both sides, but the courts seem to have definitively answered this question in the affirmative.

Given that, it's not immediately clear why it should make any difference whether the reviewing court is a state court or a federal court. If you accept that the application before the trial court is still pending during state appellate review, why does adding another level of review that just happens to be done by a federal court change the status of that pendency?

To put it another way, the phrase "State post-conviction or other collateral review" describes the nature of the application itself ("application for State post-conviction or other collateral review"). But the appellate courts never get the application. They are reviewing the trial court's denial of the "application for State post-conviction or other collateral review." Thus, the question is not "whether the filing of a petition for certiorari ... counts as 'a properly filed application for State post-conviction or other collateral review.'" It is whether the application, which is before the state trial court, remains pendent while various appeals are being pursued.

The answer to this question turns on an interpretation of the vague phrase "is pending" and the nature of certiorari (as opposed to appeal as of right). It has nothing to do with whether cert. is a state process (which it clearly is not).
2.22.2007 3:45pm