Giovanna Shay is an Associate Professor of Law at Western New England University School of Law. Professor Shay writes and teaches about criminal law and postconviction rights. She is the co-author with Christopher Lasch of Initiating a New Constitutional Dialogue: The Increased Importance Under AEDPA of Seeking Certiorari From Judgments of State Courts, 50 Wm. & Mary L. Rev. 211 (2008).
Gonzalez v. Thaler, set for argument on November 2, 2011, presents yet more procedural questions regarding state prisoners’ federal habeas petitions under the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA). This time, the issues are what event triggers AEDPA’s one-year statute of limitations under 28 U.S.C. § 2244(d)(1)(A), and whether a fully compliant certificate of appealability, meeting all of the requirements of 28 U.S.C. § 2253(c), is a jurisdictional requirement for a habeas appeal. The first question in Gonzalez implicates the interaction of federal habeas deadlines and state postconviction proceedings, potentially placing the case among a series this Term that focus on state postconviction. (Prof. Lee Kovarsky has blogged at PrawfsBlawg on this Term’s state postconviction focus.) The second question raises some doubt about whether the Court will decide the timing issue in this case. However, it also presents its own important issue regarding access to federal habeas for state prisoners, particularly those who are pro se.
Under 28 U.S.C. § 2244(d)(1), the one-year time limitation for filing state prisoners’ federal habeas petitions “shall run from the latest of” four triggering events, listed in subsections (A)-(D). At issue in Mr. Gonzalez’s case is the first trigger, described in Section 2244(d)(1)(A) as “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” If the triggering event was the issuance of the intermediate state appeals court mandate affirming Mr. Gonzalez’s conviction, his federal habeas petition is timely. If, however, the state is correct and the triggering event was instead the expiration of the time for seeking discretionary review in the Texas Court of Criminal Appeals – which is the court of last resort for criminal cases in Texas– then it is out of time.
Gonzalez argues that if the Supreme Court adopts the state’s interpretation, the AEDPA habeas clock will begin running before petitioners are permitted to file a petition for habeas corpus in Texas state court. This is significant because, under Section 2244(d)(2), the AEDPA one-year statute of limitations is tolled during the time in which “a properly filed application for state post-conviction or other collateral review” is pending. According to Gonzalez, Texas rules preclude him from filing his state habeas petition before the appeals court issues its mandate rendering the conviction “final.” Thus, he claims, under the state’s reading of the statute, the AEDPA clock would start to run with no way for would-be Texas petitioners to toll it. The state counters in a footnote that Texas courts are divided on the issue of when criminal judgments become “final” under Texas law.
Whether this AEDPA timing question will be addressed, however, depends on how the Court resolves a threshold jurisdictional issue. When it granted certiorari, the Court added another question: whether the Fifth Circuit had jurisdiction to issue a certificate of appealability (COA) under 28 U.S.C. § 2253 (c)(2), which provides that a “certificate of appealability . . . may issue only if the applicant has made a substantial showing of the denial of a constitutional right.” The Fifth Circuit’s COA, however, referenced only the procedural issue relating to the timing of the petition.
A Texas case
In 2005, petitioner Rafael Gonzalez was convicted of murder in Texas, in connection with a 1995 shooting. He received a thirty-year sentence. Represented by court-appointed counsel, Gonzalez appealed to the intermediate court of appeals in Texas. Among other issues, he raised a speedy trial claim based on the nearly ten-year delay between his indictment and trial. (While Texas officials received reports soon after the shooting that Gonzalez was in Guatemala, they did not seek to extradite him until six years later.) The Texas appeals court rejected Gonzalez’s claims and affirmed his conviction. At that point, his court-appointed lawyer ended the representation. No petition for discretionary review to the Texas Court of Criminal Appeals was filed. Representing himself pro se, Gonzalez unsuccessfully sought state post-conviction relief at both the state trial court level and the Texas Court of Criminal Appeals; he then filed a pro se habeas petition in federal court under 28 U.S.C. § 2254.
The district court dismissed Gonzalez’s federal habeas petition as untimely under the one-year AEDPA filing deadline, 28 U.S.C. § 2244 (d). The district court reasoned that Gonzalez’s time for filing began running after the expiration of the time for seeking discretionary review in the Texas Court of Criminal Appeals. Four hundred and six days had passed between that event and the filing of Gonzalez’s federal habeas petition, excluding time in which the clock was “stopped” because his case was in state postconviction proceedings. If the AEDPA statute of limitations were triggered by the issuance of the state court mandate, however, only 360 days had run. If the time period were measured from the expiration of the time in which to file a petition for a writ of certiorari at the U.S. Supreme Court, only 346 days had passed. Thus, the question on appeal to the Fifth Circuit became which date triggered the AEDPA “clock.”
In an opinion by Judge Edith Clement, the Fifth Circuit affirmed the district court’s conclusion that Gonzalez’s petition was untimely. Relying on a Fifth Circuit decision, Roberts v. Cockrell, the Court of Appeals concluded that the conviction had become final, triggering the AEDPA clock, when the time for seeking further review in state court expired. The Fifth Circuit rejected an argument that the Supreme Court’s opinion in Lawrence v. Florida had overruled its decision in Roberts by impliedly equating issuance of the state court mandate with finality. It noted that the Eighth Circuit had reached a different conclusion on this question. The U.S. Supreme Court granted certiorari, adding the jurisdictional question.
The AEDPA “triggering” provision
In the Supreme Court, Gonzalez argues that the plain language of AEDPA requires the time to run from “the latest of” the possible triggering moments, one of which is “the conclusion of direct review.” He asserts that the meaning of “conclusion of direct review” should be determined by looking to state law. In Texas, he argues, that is the issuance of the mandate. It is appropriate to look to state law to determine important procedural moments under AEDPA, Gonzalez maintains, because the statute was intended to promote deference to state procedures. Gonzalez warns that choosing a “uniform federal” accrual date could “take a significant bite out of the one-year limitation period for a large number of state prisoners.” He catalogues at least sixteen states that bar prisoners from filing state postconviction actions until direct review is concluded, as defined by their state’s law. Gonzalez argues this point with increasing force in his reply brief, characterizing the state’s interpretation as “leav[ing] the prisoner helpless to either file in federal court or to toll the running of the time.” In the alternative, Gonzalez claims that his petition was timely because the time for filing included the expiration of time to seek certiorari in the U.S. Supreme Court, notwithstanding that he did not petition for discretionary review in the Texas Criminal Court of Appeals.
Texas (on behalf of warden Rick Thaler) counters that the “conclusion of direct review” prong applies only when a petitioner has pursued direct review to its end; otherwise, the “expiration of time for review” prong applies. The state asserts that the plain language of AEDPA mandates its result, arguing that Section 2244(d) specifies “the latest of” the four triggering events (A)-(D), not the latest of the two prongs within option (A). Had Congress intended otherwise, Texas argues, it could have created five subsections, or included language within option (A) indicating that the accrual date was “the latest of” either “conclusion of direct review” or “expiration of the time for seeking such review.” The state relies on a case involving a federal prisoner, Clay v. United States, for the proposition that a prisoner’s conviction becomes final at the expiration of the time for seeking direct review. It claims that its position was endorsed by the Court in its 2009 opinion in Jimenez v. Quarterman. It argues that its interpretation of § 2244(d) will be easier to administer, since it will not require reference to state law to determine the meaning of the “conclusion of direct review.” Under the state’s approach, the only prisoners governed by the “conclusion of direct review” prong will be those who pursued Supreme Court review. Finally, it counters that the operative date for Gonzalez could not possibly be expiration of time to petition for review in the Supreme Court: he was ineligible to seek certiorari, since no petition for discretionary appeal had been filed on his behalf in the Texas Criminal Court of Appeals.
Jurisdictional issues regarding the certificate of appealability
A large portion of both parties’ opening briefs, and a majority of the state’s argument, is devoted to the jurisdictional issue. The state argues that a defect in the certificate of appealability deprived the Fifth Circuit of jurisdiction to decide Gonzalez’s appeal. It urges the Court not to consider the timing issue, and to vacate the Fifth Circuit’s decision. In Section 2253(c)(2), the state emphasizes, AEDPA requires that a certificate of appealability issue “only if the applicant has made a substantial showing of the denial of a constitutional right.” In this case, the state notes, the COA did not reference a constitutional right at all, instead referring only to the procedural AEDPA time limitation issue. While a COA may issue when a district court denies a habeas petition on a procedural ground, the state argues, it quotes Slack v. McDaniel for the proposition that the COA must “show[] at least that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Gonzalez could not prevail under the Slack standard, the state argues, because no petition for discretionary review to the Texas Court of Criminal Appeals was filed regarding his speedy trial claim. In other words, his speedy trial claim was not exhausted under the terms of O’Sullivan v. Boerckel. This procedural bar, the State maintains, was clear, not debatable, and Gonzalez possessed “no hope of obtaining habeas relief.”
Gonzalez counters that all of the record materials submitted to the Fifth Circuit with his application for a certificate of appealability “show[ed] at least that jurists of reasons would find it debatable” whether his petition stated a valid speedy trial claim. He argues that he had met the jurisdictional requirement of obtaining a COA, and that 28 U.S.C. § 2253(c)(3) requires only that the COA “indicate” the issue(s) that satisfy the requirement of a “substantial showing of the denial of a constitutional right” – a requirement that in his view is not jurisdictional. He further argues that it would be unfair to penalize habeas petitioners for errors made by courts in issuing COAs. His opening brief argues: “when, as here, a pro se prisoner with a substantial constitutional claim has done everything that the law requires of him to present his case for decision, this Court’s intervention is critical to ensure that missteps by the courts do not slam the courthouse doors shut on petitioner’s one and likely only opportunity for federal habeas review of constitutional claims.” And in his reply brief, he argues that the state failed to raise any exhaustion issue at an earlier stage, and in fact waived it by arguing the opposite in opposing certiorari. Finally, he argues that his speedy trial claim was exhausted because he “fairly presented” it to the Texas Court of Criminal Appeals in his appeal from the denial of his state habeas.
The United States filed a brief in support of the state. Its brief was limited to the jurisdictional issue, explaining that it has an interest in that question because federal prisoners are also required to obtain a certificate of appealability to appeal from the denial of postconviction relief in proceedings under 28 U.S.C. § 2255. The government argues that the “text, structure, and history” of AEDPA suggest that the COA requirement is a jurisdictional one, and that the COA in Gonzalez’s case failed to satisfy the statutory requirements. The U.S. agrees with the state that the COA was inadequate because it identified only a procedural question, rather than a “substantial showing of the denial of a constitutional right.” The “practical” concerns raised by Gonzalez do not merit another outcome, the U.S. asserts, because interpreting 28 U.S.C. § 2253 (c) as a stringent jurisdictional requirement “gives courts and parties an added incentive to pay close attention these matters at the outset.”
Conclusion: Some effects of leaving state prisoners unrepresented
Like Greene v. Fisher, this case presents ostensibly technical, statutory interpretation questions regarding AEDPA that contain, just beneath the surface, fascinating issues of federalism and comity. Like other cases this Term, including Maples v. Thomas and Martinez v. Ryan, it highlights recurring issues in state criminal representation, and, in particular, in state postconviction. Gonzalez dramatizes the importance of the scope of representation on direct appeal. Given federal habeas exhaustion doctrine, and the AEDPA time limitations, a failure to seek discretionary review can have irreparable consequences. This case also involves a state prisoner in a serious case navigating state postconviction pro se. Again, we are confronted with the implications for unrepresented petitioners in state postconviction, when federal habeas is so restricted, and review can be barred on so many grounds, regardless of merit.
Arguably, the federal government’s brief compares apples to oranges when it equates the situation faced by federal prisoners with the procedural maze facing state habeas petitioners. State prisoners must deal with the complex interaction of state exhaustion and procedural default rules and a one-year filing deadline for federal habeas, as the Supreme Court recognized in Rhines v. Weber. Also, like Mr. Gonzalez, many state prisoners are not represented by counsel after the first appeal as of right. Thus, they may not receive representation in seeking discretionary review in the highest state court, let alone in the Supreme Court, which can in turn mean that some of their federal law claims may not be fully exhausted. Depending on how this case turns out, it also could mean that the AEDPA one-year statute of limitations is triggered for them at an earlier date.
Chris Lasch and I have written in the William & Mary Law Review about how the lack of representation following a first state appeal as- of right can interact in troubling ways with AEDPA. Among other things, we studied counseled cert. petitions filed indigent criminal defendants and concluded that, of the cert. petitions filed by counsel in a single year, a substantial majority of the in forma pauperis (IFP) petitions were filed from federal direct appeals, compared with much smaller numbers of counseled IFP petitions from direct state appeals and from state postconviction proceedings. This disparity may reflect the availability in the federal system of funds to support appointed counsel in petitioning for certiorari, while availability of representation at the cert. stage in state indigent criminal defense systems is uneven.
We’ll hear on November 2 which of the issues in this mix concern the Court.
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