Argument recap: Parsing the scope of “collateral review” under AEDPA’s tolling provision

After his assault convictions were affirmed on appeal by the Rhode Island Supreme Court, Khalid Kholi sought a discretionary sentence reduction by filing a motion pursuant to Rhode Island Superior Court Rule of Criminal Procedure 35(a) (“Rule 35(a)”).  During oral argument on Monday in Wall v. Kholi, the Court considered whether that motion triggered the tolling provision of the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), which provides that “a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment” stops the clock on the one-year statute of limitations period for filing federal habeas corpus petitions. 

Assistant Attorney General for Rhode Island Aaron Weisman, arguing on behalf of the state, insisted that a “pure plea for leniency” such as a Rule 35(a) sentence reduction motion does not qualify as an application for “post-conviction or other collateral review.”  The term “collateral review” instead refers only to legal challenges – “recognized post-direct appeal applications in which constitutional, jurisdictional, and other such fundamental errors may be raised.” 

Justice Ginsburg asked why a Rule 35(a) motion, which is not a direct review, couldn’t simply be considered “post-conviction review.”  Weisman pointed out that Rule 35(a) motions could be filed prior to when a conviction becomes “final,” within 120 days of the imposition of a sentence.  It would be anomalous in a tolling provision, he argued, to embrace such things that could potentially come prior to the direct appeal.  Justice Scalia, however, rejected Weisman’s argument that the Court’s use of the term in prior cases to refer to procedures occurring after the completion of the direct review process necessarily meant that it couldn’t apply to the scenario at hand.

The Court also struggled to understand the state’s efforts to distinguish “legal” challenges.  Because Rule 35(a) motions could be used to seek legal, as opposed to discretionary, relief, Justices Kagan and Sotomayor asked whether a strictly legal motion would then fall within Section 2244(d)(2) of AEDPA and be considered “collateral.” Justice Kennedy posited that even if collateral review were available only for legal error, the state would still lose, because a Rule 35(a) plea for leniency could allege that there was an abuse of discretion and, therefore, present a legal ground to set aside the sentence.  Weisman responded by attempting to differentiate between a legal ground and the “vehicle” used to seek review. Regardless of the grounds for any particular motion, he argued, it was the vehicle that mattered.  The tolling provision was meant to apply only to vehicles that challenge the validity of a judgment that has already survived scrutiny under direct review.  Thus, a “Rule 35 vehicle, even one that raises a legal challenge” would not qualify. 

Justice Kennedy appeared unconvinced, emphasizing that because a Rule 35(a) motion is made in a court, reviewable by state appellate courts and measured on an abuse of discretion standard, “[i]t’s a little odd to say it’s not legal.”  Chief Justice Roberts echoed that skepticism, expressing his understanding that Rule 35(a) motions typically concede the legal validity of a sentence and instead plead on the basis of other factors such as a deprived childhood, age, and unique situations.  But these are “the same sort of arguments that you get to raise as a legal matter prior to the imposition of sentencing.”  Weisman countered that these issues are factual, rather than legal, matters, and that the “abuse of discretion” standard as applied in the context of Rule 35(a) is in fact a much looser and deferential inquiry that simply examines whether the trial court had “some justification” for the sentence imposed.

This response prompted some Justices to raise concerns about administrability.  Justice Scalia opined that he didn’t “want to have to figure this out case by case, or even jurisdiction by jurisdiction, as to whether it’s an abuse of discretion review or leniency review or this or that,” and that the difficulty of grappling with such distinctions across fifty states counseled towards simply including Rule 35(a) within the tolling provision.  Weisman replied that state courts already making findings on these motions could readily handle such determinations; it would be a straightforward inquiry about whether a prisoner was raising a motion challenging the legality of his sentence.  The courts could figure out whether to toll based on the captions and general substance of each motion.  But Justices Kagan and Sotomayor pointed out that the determination could then hinge simply on the inclusion of the words “illegal” or “abuse of discretion” in the title of the motion. Prisoners could “just make something up” and use “magic words,” regardless of the merits; in fact, as Justice Scalia noted, “why would anybody not caption the 35 motion that way” since it would not matter whether the claim was frivolous.

Turning to policy considerations, Weisman reemphasized that a Rule 35(a) motion was not collateral review since it could be brought before the judgment becomes “final.”  This ran counter to Congress’s intent in enacting the the tolling provision – to promote finality and exhaustion of state remedies. Rule 35(a), Weisman offered, was “neither fish nor fowl”; while conceding that a Rule 35(a) motion is not part of the direct review process, he insisted “that doesn’t mean it’s collateral review,” which “has the sort of meaning in the law … referring to a post-judgment vehicle in which fundamental jurisdictional and other types of errors can be raised.”   No purpose would be served by bringing into Federal court a motion that seeks only leniency, and thus it makes little sense to have such motions trigger the tolling mechanism.

Judith Mizner, arguing for Kholi, offered the Court a different view of “post-conviction or other collateral review.”  Under the common and ordinary understanding of those terms, she argued, “collateral review is a proceeding occurring after final judgment that could affect that judgment,” and anything that occurs after the conclusion of direct review would thus fall within Section 2244(d)(2).  The inclusion of the phrase “other collateral review” was Congress’s attempt to ensure that the provision encompassed all forms of collateral review, not simply motions that were brought explicitly under so-called “post-conviction” relief statues.  Kholi was simply asking “the Court … to review, to take a second look, to reexamine the sentence to determine whether or not it was unduly severe at the time that it was imposed.”  She also noted that, at least under Rhode Island law, challenges to sentences could not be raised on direct review.  Such claims could only be made via Rule 35(a) or in a motion for post-conviction relief.

Asked by Justice Ginsburg whether a prisoner would need to exhaust Rule 35 prior to seeking habeas relief, Mizner replied that the exhaustion requirement is limited to those claims that are going to be presented in the habeas petition. Since the denial of a request for sentence reduction on abuse of discretion grounds is not cognizable in federal habeas jurisdiction, it would not need to be exhausted.  But, Justice Ginsburg questioned, isn’t the whole purpose of tolling to give a prisoner an opportunity to exhaust what he must exhaust to move forward with a habeas petition?  Mizner responded that while exhaustion was one purpose behind tolling, it was not the only one.  Rather, Congress also intended for AEDPA to further principles of comity, finality, and federalism – to encourage litigants to pursue claims in state court prior to seeking federal review. “So tying the tolling provision to State applications shows congressional concern for comity, which at its core is a respect for the State processes that are used in reviewing the claims of State prisoners.”  If a prisoner is successful in receiving adequate relief in state court, he may chose to forgo seeking federal habeas after all.

Justice Kagan noted that the amicus brief submitted by a group of states mentioned that many state judges tend to “sit” on Rule 35-type motions, preferring to keep them pending for extended periods of time to retain the ability to modify the sentence.  Chief Justice Roberts wondered whether tolling the time for habeas would actually result in judges being less inclined to exercise charity (e.g., show mercy after waiting to see the prisoner’s conduct post-conviction) in determining whether to adjust sentences.

Justice Breyer posed a hypothetical wherein a convicted defendant feels there are legal errors in both his conviction and in his sentence.  Assuming he files an appeal on the former, and a separate Rule 35 motion on the latter is denied and later also appealed, which date would control for the purposes of the one-year limitations period?  Mizner first acknowledged that Rhode Island’s approach of separating appeals of convictions from those of sentences was “special.”  In the event that the appeals are not consolidated, however, the period would begin running from the time the review of the Rule 35 denial is final. 

Bringing the discussion back to terminology, Justice Alito asked whether “collateral review” is a legal term of art or “something we can just look up in the dictionary.”  Mizner stated that the term has been used in different contexts by the Court, but usually to distinguish “between direct review and something outside direct review.”  According to Black’s Law Dictionary, “collateral” generally means “supplementary” and “collateral attack” is defined as an attack on a judgment in a proceeding other than a direct appeal.  Since Rule 35(a) motions, though still “part of the case,” are not part of the direct appeal, they can be viewed as collateral.  

Moreover, Mizner argued, there is no indication that Congress was limiting “collateral review” as a term of art referring only to state post-conviction review statutes.  And tradition doesn’t limit the use of “collateral review” to a proceeding that is completely separate and apart, e.g., a motion for new trial due to newly discovered evidence or motions brought under section 2255, both of which are part of the original proceeding and heard by the trial court, but are clearly considered as “collateral.”  Thus, the key to determining whether a motion seeks collateral review is not “where” it is brought but “when”: “[i]t’s a question of … when these motions are filed that makes them collateral. They are not part of the direct review process.”  A Rule 35(a) motion filed prior to final judgment would not toll the statute, but one brought afterwards should.