Criminal Appeal

Equitable Tolling

On Wednesday (6/7), a Ninth Circuit panel issued a 2-1 opinion holding that a pro se state habeas petitioner was entitled to an evidentiary hearing on equitable tolling of the federal habeas statute of limitations based on his factual allegations that the prison law library failed to povide Spanish-langauge books or Spanish-speaking clerks/librarians. Mendoza v. Carey (9th Cir., filed 6/7/06). The majority (Tashima (author) and Fisher) limited its holding to situations where the petitioner had been diligant and where translation assistance---even from other inmates, which should be rare---was unavailable:

a non-English-speaking petitioner seeking equitable tolling must, at a minimum, demonstrate that during the running of the AEDPA time limitation, he was unable, despite diligent efforts, to procure either legal materials in his own language or translation assistance from an inmate, library personnel, or other source.

The holding could raise concerns about over-burdening prison law libraries with the duty to provide foreign-language materials or translators in many languages. But the majority pretty clearly backed off from adopting a per se rule requiring Spanish-language books in prison law libraries, noting the availability of translators not provided by the states. See slip op. at 9, n.5.

Judge Kleinfeld dissented on the basis that the petitioner had not established that he was literate in Spanish, there was no evidence that the necessary materials were available in Spanish, and there was no evidence that bilingual inmates who could have helped him were unavailable before the limitations period ran.

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.

Silent Order = Timely Petition

In Evans v. Chavis, no. 04-721, the Supreme Court held that a California inmate's state habeas petition filed in the California Supreme Court was untimely. As a result, the defendant was not entitled to statutory tolling of the AEDPA statute of limitations for the period between the time the previous such petition filed in the state court of appeal was denied and the filing of the petition in the state supreme court. This holding rendered the petitioner's federal habeas petition untimely.

A troubling aspect of the Court's opinion is that it turns on its head the usual presumption that a silent order by the state court is a denial on the merits.  As stated in the opinion, "On April 29, 1998, the California Supreme Court denied the petition in an order stating simply, “Petition for writ of habeas corpus [i.e., review in the California Supreme Court] is DENIED.” (The court's bracketed phrase reveals an unfamiliarity with California procedure. State habeas petitions filed in the state supreme court, even if they follow similar petitions filed in a lower court, are not petitions for "review"; they are original proceedings.) The Court noted that in Carey v. Saffold, 536 U. S. 214 (2002) it had stated that "a California Supreme Court order denying a petition 'on the merits' does not automatically indicate that the petition was timely filed."  Thus, writes Justice Breyer, the silent order Chavis received from the state high court could not be presumed a denial on the merits:

If the appearance of the words “on the merits” does not automatically warrant a holding that the filing was timely, the absence of those words could not automatically warrant a holding that the filing was timely. After all, the fact that the California Supreme Court did not include the words “on the merits” in its order denying Chavis relief makes it less likely, not more likely, that the California Supreme Court believed that Chavis’ 3-year delay was reasonable.

From this analysis I confidently conclude that the parties did not bring to the Court's attention the California Supreme Court's minutes of April 29, 1998, which clearly show that when a denial is not on the merits the California Supreme Court knows how to say so. Chavis's petition is listed without a reason stated or case citation. But many habeas petitions on the list were denied with citation. Scrolling through the list, citations to cases establishing habeas procedural bars are common. The main ones used (with my explanation in brackets) are: "In re Swain (1949) 34 Cal.2d 300, 304" [i.e. claims alleged with insufficient particularity]; "In re Waltreus (1965) 62 Cal.2d 218, 225" [i.e. claims rejected on appeal, and habeas corpus cannot serve as a second appeal]; "In re Dixon (1953) 41 Cal.2d 756, 759" [i.e. claims could have been, but were not, raised on direct appeal]; In re Clark (1993) 5 Cal.4th 750 [untimeliness].

In light of the California Supreme Court's regular use of citations to deny petitions on procedural grounds, including untimeliness, the presumption that a silent order is not a denial on the merits is unsupportable.

More AEDPA S.O.L. Work for SCOTUS.

On Monday, the Supreme Court granted certiorari in Lamarque v. Chavis, no. 04-721. This is a follow-up from Carey v. Saffold, 536 U.S. 214 (2002), in which the Supreme Court held that the federal habeas statute of limitations is tolled during reasonable periods of time between the denial of a state habeas petition at one level and the filing of the next state habeas petition in a higher court. This is really only about California where the denial of a state habeas petition is not appealable, and there are no firm or clear deadlines for filing a petition in a higher court after a lower court denied the petition. The Ninth Circuit held that the petitioner was entitled to tolling for periods between petitions during each of two rounds of petitions filed, but there was no tolling between the two rounds. (The petitioner twice went through the state courts with habeas petitions.)

According to SCOTUSBlog, the the question presented is:

"Did the Ninth Circuit contravene this Court's decision in Carey v. Saffold [2002] when it held that a prisoner who delayed more than three years before filing a habeas petition with the California Supreme Court did not 'unreasonably' delay in filing the petition -- and therefore was entitled to tolling during that entire period -- because the California Supreme Court summarily denied the petition without comment or citation, which the Ninth Circuit construes as a denial 'on the merits'?"

Chavis was pro per in the Ninth Circuit, but that won't last; the warden already has counsel, Deputy Attorney General Catherine Chatman. The case will be heard next term.

Read the Ninth Circuit's unanimous opinion authored by Judge Betty B. Fletcher here.

District Court Erred in Finding Habeas Petition Time-Barred Under AEDPA. Chavis v. LeMarque, no. 01-17072 (9th Cir., Aug. 27, 2004).

* Def'n of Pending. "So long as a state procedure for filing the habeas petition exists, the petition is pending while the state court considers it, whether the decision is ultimately on the merits or on procedural grounds."

* Three Year Delay Between State COA and State S.Ct. Petitions. "because Chavis’s November 1997 habeas petition to the California Supreme Court was denied on the merits, it was pending during the interval between the Court of Appeal decision and the Supreme Court petition and he is entitled to tolling."

* Pre-AEDPA State Court Petitions Toll SOL. District court erred in holding that, because AEDPA was not enacted until 1996, state petitions filed in 1993 and 1994 did not toll statute of limitation.

Panel: B. Fletcher (author), Trott, Fisher

Relation Back Doctrine Broadly Applied to Amendment of Federal Habeas Petition. Felix v. Mayle, no. 02-16614 (9th Cir., Aug. 9, 2004).

The Question: "[W]hen a habeas petitioner challenging a state conviction amends his federal petition to include a new claim, does the amendment relate back to the date of filing of his petition and thus avoid the one-year limitation of the Antiterrorism and Effective Death Penalty Act (“AEDPA”), 28 U.S.C. § 2244(d)(1)?"

The Answer: "We join the Seventh Circuit in concluding that a prisoner’s new claim arises out of the same transaction or occurrence as his original petition because the transaction or occurrence in issue is his state trial and conviction."

The Split: The 9th Cir. followed the Seventh Circuit on this question. Ellzey v. United States, 324 F.3d 521 (7th Cir. 2003). But the majority of other circuits have more narrowly applied the relation back doctrine: "See United States v. Hicks, 283 F.3d 380, 388 (D.C. Cir. 2002); Davenport v. United States, 217 F.3d 1341, 1344-45 (11th Cir. 2000); United States v. Pittman, 209 F.3d 314, 317-18 (4th Cir. 2000); United States v. Duffus, 174 F.3d 333, 337-38 (3rd Cir. 1999); United States v. Craycraft, 167 F.3d 451, 457 (8th Cir. 1999).

Judge Tallman dissented, stating that he would "more narrowly interpreted conduct, transaction, or occurrence to mean that in order to relate back, the untimely claim must have arisen from the same set of facts as the timely filed claim, not from separate conduct or a separate occurrence in both time and type." (Internal quotation marks omitted.)

Panel: Canby, W.A. Fletcher, and Tallman.