A Mixed Bag for Habeas Petitioners (1)

For the second time in two weeks, the Supreme Court yesterday resolved a circuit split regarding an important but obscure issue arising under the 1996 Antiterrorism and Effective Death Penalty Act (AEDPA). The two decisions appear to be at once a blessing and a curse for habeas petitioners; both adopt petitioner-friendly constructions of AEDPA but impose additional, judge-made barriers whose reach is unclear.

The 5-4 decision in Johnson v. United States (No. 03-9685) addressed the latest in a series of questions relating to AEDPA’s strict one-year statute of limitations. When federal prisoners petition for a writ of habeas corpus challenging their sentence, the one-year limitations period begins to run on the latest of four dates, one of which is “the date on which the facts supporting the [prisoner’s] claim or claims could have been discovered through the exercise of due diligence.” 28 U.S.C. §2255, 6(4). The Supreme Court granted cert to decide whether, when the prisoner is challenging an increased (or “enhanced”) sentence that was based on prior state convictions, a state court order vacating those convictions is a “fact” that supports the prisoner’s claim and thus postpones the start date of the statute of limitations.

Justice Souter’s majority opinion was joined by Chief Justice Rehnquist and Justices O’Connor, Thomas, and Breyer. Justice Kennedy dissented, in an opinion signed by Justices Stevens, Scalia, and Ginsburg. This decision marks the first time the Justices have aligned in this manner and the second case this term in which a group has formed a five-Justice majority for the first time. The other case was Smith v. Massachusetts (03-8661), discussed in Chris Houpt’s earlier post here: https://www.scotusblog.com/movabletype/archives/2005/02/20-week/index.html. (Thanks to Anton Metlitsky of Harvard Law School for confirming my hunch as to the novelty of the vote.)

The serpentine procedural history of the case requires some explanation. In 1994, Johnson pled guilty to a federal charge of distributing cocaine. Based on Johnson’s two 1989 convictions in Georgia state court, the district court found him to be a “career offender” and enhanced his sentence. By the time Johnson’s first set of appeals ended in 1996, AEDPA had taken effect. Johnson then sought and was denied habeas relief in federal court. He returned to the Georgia courts, eventually securing an order “vacating”—or nullifying—his 1989 convictions on the ground that he had not properly waived his right to counsel. With the “vacatur” order in hand, Johnson returned to federal court in an effort to invalidate the “career offender” sentence enhancement. He asserted that the state court decision constituted a new “fact” that supported his claim and that the limitations period should have run from the date of the state court order—the date as of which he could have “discovered” that “fact.” The federal district court and a divided panel of the Eleventh Circuit rejected Johnson’s argument, ruling that the AEDPA’s statute of limitations barred reconsideration of the enhanced sentence.

By a 5-4 vote, the Supreme Court rejected the Eleventh Circuit’s reasoning but affirmed its judgment. The Court unanimously answered the question presented in the affirmative, holding that “an order vacating a predicate conviction” is a fact “subject to proof or disproof like any other factual issue.”

The majority, however, proceeded to reject Johnson’s argument that his habeas corpus petition was “timely” because he had filed it within one year of the state court’s vacatur order. Writing for five Justices, Justice Souter worried that Johnson’s proposal would undermine AEDPA’s overriding purpose of finality. Prisoners, he wrote, “might wait a long time” before challenging their past convictions, since they would have a year to file in federal court “no matter how long [they] may have slumbered before starting the successful [state] proceeding.” Souter thus found that the statute’s “due diligence” language required prisoners to act “diligently” not by filing their habeas petition immediately after the state court ruling, but by taking “prompt action” as soon as they realize that their prior convictions might affect a future sentence. Prisoners should recognize their interest in overturning prior convictions when they are convicted in federal court, and because Johnson sought state court relief three years after his federal conviction, he did not act diligently. His federal habeas petition was therefore untimely.

Writing for the four dissenters, Justice Kennedy agreed with the majority that the state court vacatur order is a “fact” that activates AEDPA’s limitations period. He dissented, however, from the Court’s holding that the habeas petitioners must show that they used due diligence in seeking the state court order that gave rise to the federal claim. The majority’s due diligence rule, Kennedy wrote, was inconsistent with the statute and “unnecessary,” since most states have their own time limits on vacating prior convictions. The rule might also “allow for the same delay it seeks to avoid” and might force already-strapped defense attorneys to “divert scarce resources” from trial and appellate duties in order to challenge prior convictions.