Argument recap: Too late for habeas relief

During oral argument on Monday in Walker v. Martin, the Court appeared likely to overturn the Ninth Circuit’s ruling that a California timeliness rule for state habeas petitions was not an “adequate” state ground for barring a federal habeas court’s consideration of a petitioner’s federal claims. 

Todd Marshall, a California deputy attorney general, argued on behalf of the petitioners.  Marshall’s opening framed the remainder of the argument: “Charles Martin never adequately explained why he waited more than 5 years to present additional claims to the California Supreme Court.”  The argument also focused on how a federal court might assess whether a state procedural rule was being applied consistently.

Justice Ginsburg began the questioning by asking Marshall to explain how California’s timeliness rule was being applied consistently when the state courts had reached the merits in a majority of cases that, under the state’s rule in this case, seemingly would have been untimely.  Justice Sotomayor echoed these concerns, observing that there are “a number of cases that were 5 years or above in delay where no justification was offered, and in some they reached the merits and in others they applied a procedural bar.” 

Marshall responded that when a state court denies a petitioner’s claim on the merits, it does not mean that the timeliness rule would not also have applied.  “The point that we are making,” he stated, “is that when you look at a rule, whether you apply it or not – or whether you impose it or not doesn’t mean you are not applying the rule.”  Shortly thereafter, Justice Scalia chimed in to clarify: “Is there some Federal rule that says you have to apply a procedural ground before you decide the merits?”  Marshall replied: “There is not.”

Justice Kagan pressed Marshall to clarify how long, assuming that there was no justification for the delay, a petitioner would have before the state’s “substantial delay” provision applied.  When Marshall responded that California’s rule was contextual and case-specific, Justice Kagan then asked how long, on the facts of this case, Martin had before his petition became untimely.  Marshall declined to provide a specific answer, indicating only “that 5 months is reasonable, 18 months is definitely too long, and that there is a discretionary-based determination in the middle.”

Arguing on behalf of respondent Charles Martin, Michael Bigelow posited that the state’s timeliness rule was neither firmly established nor consistently applied.  But he faced strong opposition from the outset.  Bigelow could not identify any case after the creation of California’s timeliness rule in which a California court had deemed a petition timely after an unexplained five-year delay, nor did he attempt to reframe the relevant time period in his client’s case. 

Justice Breyer expressed frustration with the amici study that purportedly demonstrated the inconsistent application of California’s timeliness rule based on summary denials (on the merits) in the state supreme court.  He reiterated that summary denials do not reflect whether the timeliness rules were applied, because the state court may choose its ground (whether procedural or on the merits) for denying meritless cases.  “If there is inconsistency in this rule,” Justice Breyer suggested, “wouldn’t somebody go look at the decisions in the [intermediate] appellate courts which write the reasons down, and then you would know whether it is being decided, applied consistently or not inconsistently.”  Although the lower court had premised its ruling on the state’s inability to prove consistent application of its timeliness rule, Breyer and the other Justices seemed largely to accept the state’s premise that habeas petitioners bear the burden of demonstrating inconsistent application of state procedural rules. 

In the end, all of the Justices seemed frustrated by Martin’s filing of his habeas claims in state court five years after his conviction became final.  Justice Ginsburg asked, “wouldn’t a person know that five years is not as prompt as circumstances permitted?”  Justice Scalia chimed in: “Do you really need case law to tell you that five years is not as prompt as circumstances permit when you have no justification?”  When Justice Kagan asked “why was this petition not filed for five years?,” Bigelow responded only that the “record does not speak to that point specifically.”  Although the lower court had based its decision on a prior finding that California’s timeliness rule was invalid in all cases – not merely that it was invalid as applied to Martin’s case – Bigelow did not pursue this argument.  Therefore, although there may be five Justices that will want to revise the “adequate state ground doctrine” in the context of federal habeas cases, a narrower reversal of the Ninth Circuit’s opinion based solely on the facts of Martin’s case seems equally as likely.