On Tuesday, in an eight-to-one opinion by Justice Sotomayor in Gonzalez v. Thaler, the Court answered two procedural questions regarding the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA). The bottom line for habeas practitioners and pro se litigants: (1) the AEDPA requirement that a certificate of appealability (COA) “indicate” which issue constitutes a “substantial showing of the denial of a constitutional right” is mandatory but not jurisdictional; and (2) for prisoners who do not seek review in the state’s highest court, the one-year time limit in which to file federal habeas petitions runs from the expiration of the time for seeking review in that court. Of more general interest, Justice Scalia’s dissent sharply criticized the majority’s “free-wheeling purposivism,” a reference to the theory of statutory interpretation advocated by Justice Breyer in his books Active Liberty and Making Democracy Work, A Judge’s View.
Gonzalez presented two questions regarding federal habeas litigation under AEDPA by state prisoners. The first question, raised by the state for the first time in the Supreme Court, was whether a defect in the COA deprived the Fifth Circuit of jurisdiction to consider Gonzalez’s appeal. AEDPA requires that, to appeal a denial of habeas relief, a petitioner obtain a COA that “indicate[s]” the “substantial showing of the denial of a constitutional right.” The COA granted by the Fifth Circuit in this case had identified only a procedural issue – — whether Gonzalez had timely filed his federal habeas petition. It did not reference his constitutional merits issue, a Sixth Amendment speedy trial claim. The state claimed that this failure to comply with Section 2253(c)(3) was a fatal flaw that deprived the Fifth Circuit of jurisdiction to hear the appeal.
The second issue, of critical importance to habeas litigants, was the time from which AEDPA’s one-year time limit runs for state prisoners, 28 U.S.C. § 2244(d)(1)(A). Mr. Gonzalez’s appellate counsel had not sought discretionary review in the state’s court of last resort for criminal cases, the Texas Court of Criminal Appeals. The time for seeking such review expired, and the mandate issued from the intermediate state appeals court, affirming the conviction. After unsuccessfully seeking state postconviction relief pro se, Mr. Gonzalez filed a federal habeas petition. His petition was deemed untimely because, not counting the time tolled by the state postconviction proceedings, it was filed more than one year after the expiration of the time for seeking discretionary review in the TCCA. Mr. Gonzalez argued that the one-year time limit for filing his federal habeas review did not run from the expiration of the time for seeking review in the TCCA, but instead from the issuance of the mandate by the intermediate state appeals court.
A majority of the Court ruled for Mr. Gonzalez on the jurisdictional question, but against him on the timeliness issue. Justice Scalia authored a spirited dissent on the jurisdictional question.
The jurisdictional issue
Justice Sotomayor, writing for the majority, explained that, “[t]his Court has endeavored in recent years to bring some discipline to the use of the term jurisdictional” and to make a “stricter distinction between truly jurisdictional rules” and “non-jurisdictional claim-processing rules.” This distinction is important, she emphasized, because jurisdictional defects can be raised at any time in the litigation, producing dismissals that result in wasted work and resources. Thus, the Court has required a “clear statement” from the legislature that a rule is jurisdictional before giving it jurisdictional effect.
Applying this “clear-statement” rule, the majority concluded that the only jurisdictional provision of Section 2253(c) is the first prong, Section 2253 (c)(1), which requires habeas petitioners to obtain a COA. The parties (but not the United States as amicus curiae) had agreed that Section 2253(c)(2), which requires a “substantial showing of the denial of a constitutional right,” was non-jurisdictional. The Court concluded that Section 2253(c)(3), which provides that the judge “shall indicate” the issue on which this “substantial showing” is made, is also non-jurisdictional.
The Court noted in part that it would produce “unfair prejudice” to dismiss a habeas appeal on jurisdictional grounds due to a mistake by the Court. Mr. Gonzalez had sought a COA on both the timeliness and speedy trial issues. “A petitioner . . . has no control over how the judge drafts the COA,” the Court reasoned, “and, as in Gonzalez’s case, may have done everything required of him by law.”
The timeliness question
Mr. Gonzalez did not fare as well on the timeliness issue, as the Court concluded that his petition was time-barred. Under AEPDA, state prisoners must file their federal habeas petitions within one year of “the latest of” four events specified in Section 2244(d)(1). Mr. Gonzalez’s case involved the first of those four options, “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” The Court concluded that this clause includes two separate groups of prisoners. The “conclusion of direct review” triggers the one-year deadline only for prisoners who pursue their appeals all the way through the U.S. Supreme Court. The “expiration of the time for seeking such review” is the triggering event for all other prisoners.
In reaching this decision, the Court adopted the interpretation that it had announced in an earlier case involving a federal prisoner seeking post-conviction relief, Clay v. United States. In that case, the Court explained, “[w]e held that the federal judgment becomes final when this Court affirms a conviction on the merits on direct review or denies a petition for a writ of certiorari, or, if a petitioner does not seek certiorari, when the time for filing a certiorari petition expires.” Mr. Gonzalez had argued that the “conclusion of direct review” should be determined by looking to state law – in Texas, the issuance of the mandate. The Court rejected this interpretation as lacking a “textual anchor.”
Mr. Gonzalez also had warned that adopting the Court’s approach could leave state prisoners in a situation in which the one-year AEDPA clock began to run before they could, under state rules, file a state post-conviction petition tolling the clock. The Court responded that such a scenario would likely be “rare,” and that prisoners could always file protective federal habeas petitions and seek a “stay-and-abeyance.”
In relying on precedents involving federal prisoners, however, the Court failed to acknowledge some of the differences between state and federal prisoners seeking discretionary review. As Chris Lasch and I pointed out in our article 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), appointed counsel for indigent federal prisoners on direct appeal generally will have funding to file a petition for a writ of certiorari on their behalf. By contrast, for state prisoners, under Ross v. Moffitt, there is no federal constitutional right to appointed counsel to seek discretionary relief in a state’s highest court, let alone for counsel to file a petition for a writ of certiorari to the U.S. Supreme Court. State statutes and rules may provide for counsel to seek discretionary review, but it varies by jurisdiction. Thus, under Gonzalez, the amount of time that indigent state prisoners have to investigate and prepare a federal habeas petition will depend on whether their state provides counsel for discretionary appeals. The Supreme Court opinion acknowledges none of the complications of grafting the Clay rule onto varied state court systems of indigent defense.
Justice Scalia’s dissent
Justice Scalia dissented on the jurisdictional question, warning that the majority interpretation “makes a hash of the statute.” He maintained that, according to the text, all of the requirements of Section 2253(c) regarding COAs were jurisdictional. Scalia argued that it made no sense to conclude that an appellate court possessed jurisdiction just because a COA was issued, no matter how defective that document.
Scalia derided the majority’s statement that the Court sought to “bring some discipline to the use of the term jurisdictional,” saying that “[i]f that is true, discipline has become a code word for eliminating inconvenient statutory limits on our jurisdiction.” Scalia catalogued other cases in which, in his view, the Court had “performed wondrous contortions to find compliance” with appellate rules, and had been “willing to expose ourselves to ridicule in order to approve implausible compliance with procedural prerequisites to appeal.” He concluded: “[w]hat began as an effort to bring some discipline to the use of the term jurisdictional . . . shows signs of becoming a libertine, liberating romp through our established jurisprudence.”
In footnote seven of his dissent, Scalia warned that, “[t]he Court’s free-wheeling purposivism defies textual analysis.” Having just come from the Association of American Law Schools (AALS) Annual Meeting, at which Justice Breyer spoke about his new book Making Democracy Work, A Judge’s View, and his purposivist theory of statutory interpretation, this caught my eye.
While the Gonzalez majority is a must-read for habeas practitioners and scholars, the dissent will interest anyone who follows the Court’s jurisprudential debates.
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