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Habeas Hints: Procedural Update

This column is intended to pro-vide habeas hints for prisoners who are considering or handling habeas corpus petitions as their own attorneys. The focus of the column is habeas corpus practice under the AEDPA, the 1996 habeas corpus law which now governs habeas corpus practice throughout the U.S.


As we say goodbye to 2002 it's a good time to take a look at some of the year's most prisoner-friendly decisions regarding procedure under the AEDPA.

Tolling of the AEDPA for "Pending" State Habeas Petitions

The AEDPA statute of limitations is tolled (doesn't run out) while a "properly filed" state habeas corpus application is "pending". In Artuz v. Bennett, 531 U.S. 4 (2000), the Supreme Court (USSC) held a that state petition is "properly filed" so long as it meets all the state's formal requirements for filing, regardless of whether the claims themselves may be substantively or procedurally flawed. Hence, as long as a state petition is filed in the proper court and is file-stamped by the clerk, it will be deemed "properly filed", and a "properly filed" petition is entitled to tolling under the AEDPA as long as it is "pending".

The question remains as to just what "pending" means, a question the court answered in Carey v. Saffold, 122 S.Ct. 2134 (2002). The State had acknowledged in Carey that there is now unanimous agreement throughout the federal courts that gaps between state habeas corpus review in the lower court and review in the state's appellate courts are included within the definition of "pending", so that all the time between state habeas corpus applications is tolled as well as the time the time the habeas case is actually on the court's docket. However, most states have very specific time limits (commonly 30 days) within which the denial of a petition at one state level must be "appealed" to the next level. California, however, has no specific time limits, just a "reasonable time" standard, and instead of appealing a denial, one files a "new" petition at the next highest level. As a result, delays of several months or even longer can occur in California between one level of state habeas review and the next. In Carey, the USSC held that the four-month delay in that case between filings in the Court of Appeal and in the California Supreme Court could have been held to be "unreasonable" by the California Supreme Court, but it hadn't been. Therefore, the USSC remanded to the district court to make a determination as to whether that delay was "unreasonable".

Based on Carey and other authority, prisoners in states with specific time limits can claim tolling for the time that is allowed for an "appeal" of the denial of the petition, whether or not the prisoner actually takes that appeal. See, e.g, Williams v. Bruton, 8th Circuit, No. 01-1897, 8/20/02; Gibson v. Klinger, 232 F.3d 799 (10th Cir. 2002). Meanwhile, prisoners in California should argue, based on Carey, that all delays between levels of review in the California court system are "reasonable", at least until and unless the district court on remand in Carey (or some other court) should hold otherwise, something I personally consider unlikely because the only standards California has ever had for non-capital habeas corpus petitions is the vague principle that they be filed "without substantial delay".

Keep in mind, however, that while Carey affords a generous definition of "pending" for tolling under the AEDPA statute of limitations, it provides no protection from state procedural defaults based on "untimeliness". If the state court denies a petition on the basis that it is "untimely", then unless the procedural default can be overcome (see next section) the federal petition will be barred on the basis of a state procedural default, even though it might be timely under the federal statute of limitations. To avoid procedural default rulings in states with set time limits between filings, prisoners will have to file within those set limits. In California, petitioners will have more flexibility under Carey, but the longer one waits between filings, the greater the chance that the state court will decide the petition is "untimely" because it was filed after an "unreasonable delay". In other words, there's no sense playing with fire unless you have to, so if possible California habeas petitions should be filed at the next level up within 60 days after the previous denial, that being the generally applicable time limit for filing of an appeal. Petitions filed after longer periods of time, especially those filed beyond the 4-month period involved in Carey, should be accompanied by a factual explanation for why it took so long to file (e.g., because of ongoing investigation, discovery of new facts, etc.).

State Procedural Default Based on "Untimeliness"

If the state does deny a habeas petition on the basis of "untimeliness" (in California, that's done by citations to "Swain", "Clark", and/or "Robbins"), then that is a "procedural default" which will, absent a very good excuse (a showing of "cause and prejudice" for the delay) bar consideration of a subsequent federal petition so long as the state's untimeliness ruling was "independent" and "adequate". To be "independent" the state court must clearly have rejected the petition on the basis of untimeliness rather than on the merits. To be "adequate" the untimeliness bar must have been "firmly established and regularly followed" at the time the late filing occurred.

Whether an untimeliness ruling is "independent" requires an inquiry which turns on interpretation of the specific language used in the ruling. For example, where the entire petition is rejected as "untimely", then that ruling is "independent" of federal law; however, if the state court rejects one claim on the merits and another for untimeliness, the ruling is not independent and federal review is not barred. While making these distinctions is not always easy, it is done on a case-by-case basis, and case-law is not very useful or necessary. In contrast, whether a state ruling is "adequate" or not requires a review of prior cases in which the state has applied the untimeliness bar, in order to determine whether untimeliness has been found in that state on a regular, disciplined basis, according to recognizable standards. That kind of analysis is time-consuming, but feasible for the State to do, since the State is always a party to habeas cases, and has the computerized resources necessary to do a broad survey of past decisions. For obvious reasons, however, that same kind of analysis would be impossible for any prisoner to do. Given these realities, the most critical issue in determining adequacy is usually deciding who has the "burden of proof" on that issue: If it is the prisoner, s/he will always lose. But if it is the State, then (a) the State may decide it's not worth the bother; and (b) even if the State does the analysis, the prisoner will have a fixed target to aim at and hopefully poke holes through.

The circuit courts have come down on both sides of this important issue. In the 5th Circuit, the burden of proof remains (at least for now) on the petitioner. However, In Bennett v. Mueller, 296 F.3d 752 (9th Cir. 2002), the 9th Circuit joined the 10th in putting the burden of showing adequacy where it belongs on the State. This new Bennett decision is a particularly significant ruling for prisoners in California, because it found California's untimeliness standards inadequate reversing a previous Bennett holding reaching the opposite result and because California's untimeliness rules, especially in non-capital cases, are, in actual application, especially vague and standardless. Hence, the Bennett decision cited above puts a huge burden on the Attorney General to show the adequacy of California's untimeliness rule that the A.G. is probably unprepared to meet now and for the foreseeable future. Accordingly, anytime the A.G. moves to dismiss based on California's untimeliness bar, the petitioner should oppose the dismissal on the basis that California's untimeliness standards are not "adequate" for the reasons set forth in Bennett, and that the A.G. has not met its burden of proof of in that regard.


A federal habeas corpus petition must contain only claims that have been exhausted in state court. Sometimes, however, a prisoner files a "mixed" petition: one that contains exhausted claim(s) and one or more unexhausted claims. When that occurs, the federal court is supposed to give the petitioner the option of: (a) staying in federal court and dropping the unexhausted claims; or (b) going back to state court to exhaust the unexhausted claims and then returning to federal court with a petition containing only exhausted claims. Alternative (b) can have dangerous consequences for the AEDPA statute of limitations: A federal habeas corpus petition stops the AEDPA from running any further; but one that is dismissed for failure to exhaust is not entitled to tolling, so all the time between the filing of such a petition and the return to the state courts will count against the AEDPA statute of limitations when the petitioner returns to federal court. Losing all those days can be fatal if the petitioner had only a little time left under the AEDPA when he originally filed in federal court.

To guard this kind of Catch-22 situation, the federal courts have been required to clearly advise the petitioner of the potential statute of limitations consequences prior to the time the prisoner decides between (a) and (b) above. The courts have been doing that. But what most of them have not been doing is advising of a possible third option: (c) dismissing only the unexhausted claims and "staying" the exhausted claims so that the petitioner can return to state court to exhaust, without having his federal petition dismissed in the interim. In Zarvela v. Artuz, 254 F.3d 383 (2nd Cir. 2001) the 2nd Circuit recommend that the court use alternative (c) in cases where there is only a little time remaining on the AEDPA statute of limitations, conditional upon the petitioner returning to state court within 30 days to restart the exhaustion process in state court, and returning to federal court within an additional 30-day period after exhaustion in the state courts is completed. So long as the petitioner complied with these conditions, the federal petition would be "stayed" (i.e., remain on the federal docket) and the AEDPA statute of limitations would not run. In Kelly v. Small, 300 F.3d 1159 (9th Cir. 2002) the 9th Circuit approved of the Zarvela approach, and went so far as to suggest that alternative (c) was required "when an outright dismissal will render it unlikely or impossible for the petitioner to return to federal court within the [AEDPA statute of limitations period]." Based on Kelly, a pro per petitioner faced with a notice to dismiss unexhausted claims or return to state court should ask the court for a stay of the federal petition under the conditions imposed in Zarvela and approved in Kelly. Similarly, if the A.G. moves to dismiss a petition based on the running of the AEDPA while the petitioner returned to state court to exhaust, the petitioner should oppose the dismissal if the court did not advise of option (c) before dismissing the federal action.

Kent Russell specializes in habeas corpus, appeals, and criminal defense. 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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