Opinion recap: All judicial review is either direct or collateral

By James Bickford
on Mar 9, 2011 at 2:42 pm

The Court’s opinion in Wall v. Kholi answers the narrow question of what the Anti-Terrorism and Effective Death Penalty Act (AEDPA) means by “collateral review” while avoiding the even narrower issue of which sort of review is provided by a particular Rhode Island rule of criminal procedure.

AEDPA provides a one-year limitations period for the filing of a federal habeas petition, but that clock is paused by “a properly filed application for State post-conviction or other collateral review.”  On Monday, the Court held that all forms of judicial review that are not direct are therefore necessarily collateral.  In the words of Justice Alito, who authored the nearly unanimous opinion (Justice Scalia declined to join a footnote), the term “collateral review” should be defined “according to its ordinary meaning: It refers to judicial review that occurs in a proceeding outside of the direct review process.”

Kholi filed the first of his two state petitions under Rule 35 of the Rhode Island Superior Court Rules of Criminal Procedure, which allows a court to “correct” or “reduce” a sentence.  The state argued that Kholi’s Rule 35 petition was a request for a discretionary sentence reduction—a “plea for leniency”—rather than a “legal” challenge to his sentence; thus, he was not seeking “collateral review” within the meaning of AEDPA.  If the state were correct, then the one-year AEDPA limitations period would have expired before Kholi filed his federal petition for habeas corpus.

The Court rejected Rhode Island’s interpretation, making clear that there is no third kind of judicial review: all review is either direct or collateral.  The Court reached that result by taking the words one at a time.  First, the Court explained (citing the Oxford English Dictionary and Webster’s) that the ordinary meaning of “collateral” is “[l]ying aside from the main subject” and moreover the Court had previously used the term to refer to proceedings that “stand apart from the process of direct review.”  As for “review,” the Court continued, that term is “best understood as an ‘act of inspecting or examining’ or a ‘judicial reexamination.’”  Adding those interpretations together, the Court concluded that “‘collateral review’ of a judgment or claim means a judicial reexamination of a judgment or claim in a proceeding outside of the direct review process.”

The Court then applied that definition to the Rhode Island rule in question, which both parties agreed was not part of direct review.  (It is, however, the only means by which a sentence can be challenged in Rhode Island.  In the footnote from which Justice Scalia dissented, the Court conceded that there might therefore be an argument that Rule 35 proceedings were a part of direct rather than collateral review—but declined to decide a question on which the parties agreed.  Justice Scalia would have held that Rule 35 proceedings were part of collateral review.)  The Court reasoned that, given the agreement of the parties and the similarity between Rhode Island’s Rule 35 and the old Federal Rule of Criminal Procedure 35—which the Court had once characterized as providing a “collateral” remedy—it had “little difficulty concluding that a Rhode Island sentence reduction proceeding is ‘collateral.’”  Moreover, such a proceeding constitutes “review” because it “involves judicial reexamination of the sentence to determine whether a more lenient sentence is proper.”

The Court next disposed of Rhode Island’s arguments to the contrary.  Although its prior opinions had used the phrase “collateral review” to refer to proceedings challenging the lawfulness of a judgment, they had never suggested that such challenges were the only possible meaning of the phrase; indeed, the Court had described motions to reduce a sentence as “collateral.”  The argument that AEDPA’s other uses of “collateral review” referred to challenges to a judgment’s legality suffered from the same logical flaw.  Finally, the Court noted that allowing a Rule 35 proceeding to conclude before a federal habeas proceeding was initiated might “narrow[] or even obviate[]” the need for federal habeas review; by contrast, accepting Rhode Island’s interpretation would require courts to make a difficult distinction between legal challenges to a sentence and pleas for leniency.  The Court also rejected the Fourth Circuit’s distinction between proceedings that are part of the criminal case and those that are separate from it, noting that the Court considered coram nobis proceedings—that is, requests for relief after a criminal sentence has been completed—to be both part of the criminal case and also a “collateral attack.”