AEDPA Limitations Case Argued

Lawrence v. Florida, the AEDPA statute of limitations case was argued this morning. The questions presented include whether statutory tolling for the period during the pendency of a properly filed state post-conviction application includes the time during which certiorari review is sought. Alternatively, whether equitable tolling is available where the late filing resulted from court-appointed counsel's mistake of law and from disarray in Florida's capital post-conviction appointment system.

Although 10 of the 11 circuits to consider the question have held there is no statutory tolling while certiorari review is sought, there's a pretty good plain-language analysis of the statute that supports the petitioner's argument and I wouldn't be surprised if Justice Scalia agrees with petitioner that the state post-conviction petition was still "pending" while he petitioned for certiorari. The transcript should be out this afternoon and we'll see if the justices's views are apparent.

Lawrence is on death row and the case thus presents the possibility of the execution of an inmate who never had any substantive federal habeas review of his case.