Decision below: 623 F. 3d 222 (5th Cir. 2010)
Questions Presented (from SCOTUS docket page):
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”?
Yet another habeas grant, involving (as habeas typically does) highly technical procedural issues. If you’re not a habeas practitioner, you won’t find much if anything of interest in this grant.
Take the 2nd issue first. There’s a 1-year statute of limitations for filing a habeas petition, beginning on “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review,” 28 U.S.C. § 2244(d)(1)(A). Measured by when Gonzalez’s state-court right to appeal ended (which was when the 30 days for seeking review by the Texas Supreme Court of the Court of Criminal Appeals’ affirmance expired), his habeas petition was untimely. On the other hand, if finality of judgment is measured by when the state appellate court got around to issuing its “mandate” (probably analogous to issuance of a remittitur under § 809.26), which would add about 2 and 1/2 months; measured thusly, Gonzalez’s petition was timely. Separately: authority exists for adding to the limitation period the time for filing a cert petition (90 days), whether or not one is filed. Anderson v. Litscher, 281 F.3d 672, 674-75 (7th Cir. 2002) (“Because the plain terms of section 2244 include the period for seeking direct review, regardless of whether or not a petitioner chooses to avail himself or herself of that opportunity, we believe that the ninety day period during which a petition for certiorari may be filed by a state prisoner falls within the meaning of section 2244(d)(1)(A) for purposes of calculating when the statute of limitations begins to run.”) As suggested above, Gonzalez didn’t seek discretionary review by the Texas Supreme Court: does that omission matter? Put it like this: failure to utilize all available remedies, even discretionary ones, generally forfeits the issue on habeas review, so how likely is it that the Court will reward such forfeiture with an extension of the limitation period?
Befuddled? SCOTUSblog has usefully broken down the issue into something approaching plain English, which may help:
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.
If that didn’t help, don’t worry, you’re not alone. Jonathan Kirshbaum, who knows more than a thing or two about habeas, finds himself somewhat adrift.
As for the Certificate of Appealability question: it may relate to the idea that you must identify an underlying issue of constitutional dimension in order to confer jurisdiction to issue a COA. In other words, whether it’s enough for Gonzalez to meet the COA standard on the threshold statute of limitations problem; or, whether he also had tot meet the standard on the merits of the underlying challenge to his conviction.
