THE AEDPA STATUTE OF LIMITATIONS
What's New in 2001?
It's now been more than 5 years since the passage of the AEDPA, and at least by now almost all prisoners know there is a 1-year statute of limitations which requires the dismissal of any petition for federal habeas corpus filed after the time has been used up. On the other hand, the law keeps changing as to just how the statute of limitations is to be calculated. In this column we'll review key cases that have come down in 2001 in the U.S. Supreme Court and in the 9 th Circuit.
First, a quick review of the basics:
The AEDPA created for the first time a statute of limitations within which a federal habeas corpus petition must be filed or it will be thrown out of court. The limitations period is one year from the date that a conviction becomes "final" on direct appeal.
Direct appeal concludes with the conviction and sentence being affirmed by the state's highest court. (In California, direct appeal usually ends with the denial of a "petition for review" by the California Supreme Court.) After the state's highest court denies review, you have 90 days more within which to file a petition for certiorari (cert) with the U.S. Supreme Court (USSC), and "finality", for AEDPA purposes, doesn't occur until the USSC actually denies cert. If no cert petition is filed with the USSC, which is quite common, you still get the 90 days, so long as you've raised at least one federal constitutional issue on your petition for review. (For this reason alone, one should always "federalize" one or more issues when applying for a petition for review in state court, following an unsuccessful appeal.) After the additional 90 days runs out, your conviction is "final", and then you have 1 year (365 days) to file a federal habeas corpus petition. If you don't file within that time, the federal court will accept your petition for filing, but sooner or later it will be thrown out of federal court for failure to comply with the AEDPA statute of limitations.
Technically, the AEDPA statute of limitations only applies to federal habeas corpus. However, as all habeas litigants know or certainly should know, you can't file for federal habeas corpus before you first "exhaust" your habeas corpus claims in the state court. Sometimes this is done on the petition for review during the direct appeal, but more commonly (such as with ineffectiveness of counsel claims, which are rarely brought at all on direct appeal) it's done by filing your habeas claims in the state courts, on state habeas. A state habeas petition is filed first in the state's trial court ("superior court") and, if denied there, which it almost always is, then it is usually re-filed in the state Court of Appeal (not actually required for exhaustion but strongly recommended as a free bite at the apple), and if denied there, the habeas petition must be filed in the state's highest court to complete exhaustion. Of course, all these state filings take time; yet it is absolutely necessary to fulfill the exhaustion requirement before going over to federal court. The drafters of the AEDPA recognized this dilemma, so the AEDPA's federal statute of limitations is suspended (tolled) while you have a "pending" state habeas petition that's been "properly filed" in the state courts. In other words, your 365 days will start to be used up as soon as your conviction and sentence become "final" (see previous paragraph), but when you actually file for state habeas corpus the AEDPA statute of limitations clock stops running and it doesn't start up again until the state habeas corpus process ends with the denial of state habeas by the state's highest court. At that point, the clock will start running again with however many days you had left before it got suspended while you started in on state habeas. As long as you file in federal court before the rest of the 365 days run out, you're okay under the AEDPA statute of limitations. But if you snooze (and the clock runs out of days), you lose.
Now, let's take a look at the holdings of some of the key statute of limitations cases coming down in 2000-2001.
Tolling for a "pending" state habeas petition is allowed for the entire time period that state habeas is being pursued.
Back in 1996, in Nino v. Galaza , 183 F.3d 1003 (9 th Cir. 1996), the Ninth Circuit held that a state petition is "pending" (and therefore the AEDPA period is tolled or suspended) "& from the time the first state habeas petition is filed until the California Supreme Court rejects the petitioner's final collateral challenge." Nino held that the tolled period includes intervals between the ruling by one court in the state system and the filing of a later petition at the next state appellate level. However, in Nino itself that period was only around 6 months. Therefore, it was unclear whether a much longer period than that would be allowed tolling under Nino , and some unreported cases were pulling the plug when the delay between filings got to be a year or more. However, in the recent case of Welch v. Newland , __ F.3d __, 2001 U.S. App. Lexis 20844, the Court allowed tolling for a period as long as four and a half years on the ground that, so long as the California Supreme Court denied the petition on the merits, that meant the state courts found the petition timely, and that was good enough for the federal courts to allow tolling under Nino for the entire time it took a petitioner to make it through state habeas, even if that process continued over several years. Furthermore, even though the California Supreme Court denial in Welch was an actual statement that the petition was denied "on the merits" (as opposed to the more common denial using just the words "The petition is denied", what we call a "post-card denial") a footnote explains that the effect is the same so long as the state court denial prior to the postcard denial by the California Supreme Court was anything other than a decision denying the petition solely on the basis of "untimeliness" or some other procedural default. Because post-card denials are very common and denials solely on the basis of procedural defaults are extremely rare, in the vast majority of habeas cases, Welch will allow a petitioner tolling for the entire time that state habeas proceedings are taking place, including the time between filings in state courts, even if this takes several years to accomplish.
A "properly filed" state habeas petition is just about anything filed by the state court.
One requirement for tolling of state habeas petitions is that they be "pending" (the concept discussed in the previous paragraph). Another is that the petition be "properly filed" in the state court. In the infamous Dictado case which first came down in 1999 (later to be reversed on the grounds discussed below), the Ninth Circuit interpreted the "properly filed" requirement to prohibit AEDPA tolling for any state petition that was eventually denied on the basis of a state procedural default. (A procedural default can be signaled either in so many words, e.g., "the petition is filed too late", "successive petition", "the claim should have been raised on appeal"; or by citation to a California Supreme Court case that defined and applied a procedural default, e.g., citations to cases such as Swain ,Clark , or Robbins . Therefore, under the former Dictado rule, even if a state habeas petition was filed in the state court, if it was later denied on the basis of a state procedural default, then none of the time that state petition was pending would be tolled under the AEDPA statute of limitations. Dictado 's interpretation was especially insidious, since a petitioner would not know until after a court ruled on his petition whether it was going to be denied on the basis of a procedural default, and if that happened then all the months it had been pending before that court would retroactively count against the time remaining on the AEDPA statute of limitations. Fortunately, the U.S. Supreme Court put Dictado out to pasture by ruling in Artuz v. Bennett , 531 U.S. 4 (2000), that all it takes for a petition to be "properly filed" is for it to be filed in the proper court and stamped "filed". This generous definition of "properly filed" means that just about any state habeas petition that gets filed in the state court is going to be allowed tolling under the AEDPA.
You now get an extra 30 days after the California Supreme Court denies your state habeas petition before the AEDPA statute of limitations starts running again.
Until the middle of 2001, the AEDPA statute of limitations would start up again as soon as the California Supreme Court denied the state habeas petition. Therefore, whatever time a petitioner had left in his statute of limitations bank when the California Supreme Court denied relief on state habeas would start running out again on the very day that the California Supreme Court decision was dated. This created a particularly dangerous situation for prisoners with only a few days left in their statute of limitations bank, because it often takes at least a week or two (and, for inmates in segregation, even longer) before a decision mailed out by the California Supreme Court actually reaches a prisoner. However, in August of 2001, the Ninth Circuit held in Bunney v. Mitchell , 262 F.3d 973, that a decision by the California Supreme Court denying a petition for habeas corpus doesn't become final until 30 days after it is filed. Therefore, the AEDPA statute of limitations will not start running again until 30 days after the California Supreme Court denial of state habeas is filed in that court.
Time spent in federal court on a partially unexhausted petition is not tolled.
Unfortunately the news isn't all good. Frequently a petitioner who thinks he's exhausted his state remedies will go on to federal court and file a timely federal habeas corpus petition, only to learn that the federal court has found one or more of the claims to be un-exhausted (i.e, not fairly presented to the state courts first, with a citation to the USSC case or other well established federal constitutional law on which the claim is based). A federal petition containing one or more unexhausted claims is a "mixed" petition, and in such cases the petitioner will be given the option of dropping the unexhausted claim(s) and continuing in federal court, or dismissing the entire federal petition and returning to the state court to complete exhaustion for all the claims, after which the petitioner can return to federal court. Because dropping an unexhausted claim means it can never be raised again, many prisoners choose to dismiss the entire petition and go back to state court. That's okay, because the dismissal of a mixed petition is always "without prejudice". But, when the petitioner returns to federal court, is s/he allowed tolling for the time that was previously spent in federal court, which could have amounted to weeks or even several months before the federal court took any action on the petition? Until the middle of 2001 some courts weren't allowing tolling for the previous trip to federal court, but some were. The USSC put that debate to bed by deciding on June 18, 2001, that no tolling is allowed for any time spent in federal court on a habeas petition that is dismissed for failure to fully exhaust state remedies. See: Duncan v. Walker , 121 S.Ct. 2120 (2001). However, keep in mind that the USSC did not decide in Duncan whether "equitable tolling" might be allowed in individual cases where the effects of the new Duncan rule were particularly unfair. For example, in a case where a petitioner was tied up in federal court for a long time before the federal court brought up the exhaustion issue, or where the court did not clearly explain that a return to state court could result in the running of the statute of limitations when the petitioner returned to federal court, it can and should be argued that equitable tolling should be granted in that particular case, notwithstanding the Duncan holding that statutory tolling is not permitted.
Kent Russell specializes in criminal defense, appeals, and habeas corpus. He is the author of the California Habeas Handbook, which explains habeas corpus and the AEDPA, and can be purchased ($25, incl. postage) from the Law Offices of Russell and Russell, 2299 Sutter Street, San Francisco, CA 94115. "
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