Criminal Appeal

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.

Cert. Grant in AEDPA S.O.L. Tolling Case

This morning, the Supreme Court granted cert. in a Florida capital case in which the Eleventh Circuit affirmed the dismissal of the habeas petition on statute of limitations grounds.  Lawrence v. Florida, no. 05-8820. This case presents the spectacle of a death row inmate possibly being denied any federal habeas review because his attorney filed his federal habeas petition late.

The precise question presented is not quite clear, but it relates to tolling of the AEDPA federal habeas statute of limitations.

While there have been quite a few Supreme Court cases addressing statutory tolling  based on a pending state habeas petition, this may be the first directly addressing equitable tolling and statutory tolling based upon a state created impediment to filing. (Last term, in Pace v. DiGuglielmo, the court assumed, without deciding, that equitable tolling could excuse a late filing.) The question in Lawrence, however, may be on the more limited question of whether the limitations period is tolled during the pendency of a cert petition from the denial of state post-convcition relief, as described by SCOTUSblog. The defendant  presented two theories by which his petition, although filed more than one year after the conviction was final, was timely. The Eleventh Circuit rejected both.

State Created Impediment to Filing. First, he argued that he fell under the alternative one-year limitation period that runs from “the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action.” 28 U.S.C. § 2244(d)(1)(B). The defendant argued that "the State caused an impediment to his timely filing by providing him with an incompetent attorney through the Florida counsel registry system" and that counsel incompetently assumed the limitations period was tolled during the pendency of a petition for certiorari from the denial of state post-conviction relief.

Equitable Tolling. Second, the defendant argued that he was entitled to equitable tolling due to (1) the state providing him an incompetent attorney, (2) his own mental incompetence.

The Eleventh Circuit rejected both theories in a published opinion. The court also held, as was necessary to the opinion, that the pendency of the certiorari petition from the state post-conviction denial did not toll the limitations period. The time during which the state post-conviction petition was pending did toll, but the court held that the clock started running when the state petition was denied by the state high court, not when the certiorari petition was denied.

State May Waive Federal Habeas Statute of Limitations

In a unanimous opinion authored by Judge Pregerson, the Ninth Circuit held today in Nardi v. Stewart, no. 02-16646, that Arizona waived any statute of limitations defense by failing to assert it in an answer to an Arizona prisoner's federal habeas corpus petition. And the district court may not sua sponte dismiss a petition on statute of limitations grounds after the state has filed an answer to the petition.