Yesterday’s Argument in Evans v. Chavis

Though it would be difficult to predict with any certainty a clear winner in yesterday’s argument in Evans v. Chavis, it seems respondent Chavis has an uphill battle in convincing enough justices to distinguish his case from Carey v. Saffold and find in his favor. Chavis is a California prisoner attempting to uphold the Ninth Circuit’s presumption that his state habeas petition was timely because the state supreme court summarily denied the petition on the merits without commenting on whether there was an unreasonable delay. The petitioner, the warden, asks the Court to overturn the Ninth Circuit’s presumption in favor of an approach that will prevent tolling of the federal statute of limitations for habeas petitions when the petition was untimely. The case is discussed in greater detail here.

Counsel for both sides sought to direct the Court towards the most logical solution to the difficult problem of how to determine the timeliness of a habeas petition when the California state courts have summarily denied the petition on the merits. Catherine Chatman, arguing for the petitioner, suggested that the Ninth Circuit should create a presumption that any state habeas petition filed more than 60 days after the court below issued its denial is untimely and thus does not toll the AEDPA statute of limitations. Chatman noted that 60 days is the deadline for direct appeals of criminal convictions, indicating that when California quantifies timeliness it chooses a 60-day deadline.

Peter K. Stris, arguing for the respondent, laid out the case for why the Ninth Circuit’s existing presumption is the best solution. He stressed that California has not set any standards for deciding whether a delay is reasonable, such that the Ninth Circuit is faced with applying unclear rules if its presumption is struck down. Without its presumption, Stris argued, the Ninth Circuit could misinterpret state law and throw out cases that California courts would have found to be timely, especially given that California courts have found delays of two and three years to be reasonable. In response to petitioner’s suggestion of a 60-day presumption, Stris argued that because that deadline exists in the direct appeal context, where the accused has access to counsel, it is not relevant to the habeas context in which prisoners are usually pro se.

Chief Justice Roberts appeared eager to find a way to rule for petitioner while avoiding the federalism concerns that would surface when a federal court interprets state law in the absence of any state indication of what that meaning may be. Justice O’Connor may have been persuaded by the respondent’s federalism and comity arguments, suggesting that it should be up to the state to decide what reasonableness means under California law, rather than have the federal courts decide that it means 60 days or less. Justice Souter echoed these concerns. In light of these concerns, Justice Stevens wondered whether petitioner had sought the guidance of the California Supreme Court or had suggested that the state court create a rule governing what delays are reasonable. Petitioner responded that the attorney general’s office had urged the state supreme court to look into this but that the California courts considered it a question for the legislature.

Justice Breyer was active on the bench, first pressing petitioner as to why the state of California had not sought rehearing en banc in the Ninth Circuit before filing a cert. petition (answer: the state knew the Ninth Circuit would not strike its own presumption). As the author of Carey v. Saffold, Justice Breyer repeatedly pressed both parties to explain how the Ninth Circuit could maintain its presumption of timeliness in light of his Saffold holding that a state court denial on the merits was not determinative of whether a petition was timely. Justice Souter, however, acknowledged a difference in that the state court’s denial in Saffold was on the merits and for lack of diligence, while the denial of Chavis’s petition was only on the merits. Respondent argued that a denial solely on the merits, without a Saffold-like indication of unreasonable delay, may be determinative of a petition’s timeliness because almost half of all California Supreme Court habeas denials explicitly deny petitions for lack of timeliness. Even the Chief Justice may have found this persuasive, indicating to petitioner during rebuttal that the figures provide some support for the Ninth Circuit’s presumption.

Justices Scalia and Breyer both appeared concerned with the facts of the case, i.e., how could a three-year delay be reasonable when most states set 30-day deadlines and anything over that is unreasonable? Justice Ginsburg, however, indicated that Chavis may have had good reason for his delay and thus his delay may have been reasonable under California law.

The Court did seem to recognize the difficulty of determining whether a petition had been untimely and the ease, in contrast, of deciding many habeas petitions on the merits. Justice Scalia acknowledged this but indicated that although state courts may avoid the issue, federal courts may not, thanks to Congress’s direction in AEDPA that untimely petitions must not toll the limitations period. Justice Breyer appeared to agree, suggesting that the Court should simply tell the lower federal courts to do their job and determine whether a petition was timely. The final vote will likely come down to a choice between closely following Congress’s wishes as expressed in AEDPA or giving some leeway to overworked federal courts facing a time-intensive factual inquiry governed by an ambiguous state law.