Amicus Curiae Brief — Carey v. Saffold

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Supreme Court of the United States

ANTHONY NEWLAND,

Petitioner,

VS.

TONY EUGENE SAFFOLD,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

BRIEF AMICUS CURIAE OF THE

CRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF PETITIONER

KENT S. SCKHEIDEGGER

Counsel of Record

MARITZA B. MESKAN

Criminal Justice Legal Fdn.

2131 L Street

Sacramento, CA 95816

Phone: (916) 446-0345 _

Fax: (916) 446-1194

E-mail: cjlf@cjlf.org

Attorneys for Amicus Curiae

Criminal Justice Legal Foundation

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QUESTIONS PRESENTED

This case arises from a state where an unsuccessful petition-

er in state habeas may seek review by filing a successive

petition for an original writ in a higher court. This procedure

raises the following questions:

1. Is any proceeding “pending” within the meaning of the

federal habeas statute of limitations tolling provision, 28

U. S. C. § 2244(d)(2), during all or part of the interval between

denial by the lower court and filing in the higher court?

2. If the answer to question | is yes, is there any limit on

the time?

3. Does the answer to question 2 depend on an interpreta-

tion of the state court’s disposition of the petition, i.e., whether

the state court rejected it as untimely, lacking in merit, or both?

TABLE OF CONTENTS

nT ccd buceedeéee¢es ceecceeshases i

STD cUddeshceussckeveuéssnde execes iv

on i rei kte euwebecadehunaes l

Summary OF Taste GRE GOSS... ww cece cece cc cccsens 2

IID occcccuNacevdnessteceedecaady 4

SE civawes ok becebedeseceesaeevesedvedetucs 5

Open-ended tolling in the intervals between state review

Stages would defeat the central purpose of the statute,

giving dilatory petitioners the benefit of delays of their

SE Nido cudsdecnoneesutacacescuveseéacs 5

No proceeding is “pending” in the period between

successive petitions, even if the second petition has a

de facto appellate function .................6.005. 1]

Whether a state court waives a state timeliness rule has no

bearing on when a petition is “pending” for the purpose

eee eee cease cetneeheche aba 14

Any “tolling in the gaps” between stages of state collateral

review should de limited to a definite state time limit,

whether directly applicable or “borrowed.” .......... 19

TABLE OF AUTHORITIES

Cases

Beecham v. United States, 511 U. S. 368,

128 L. Ed. 2d 383, 114 S. Ct. 1669 (1994) .......... 19

Board of Regents v. Tomanio, 446 U. S. 478,

64 L. Ed. 2d 440, 100 S. Ct. 1790 (1980) ........... 21

Brown v. Allen, 344 U. S. 443, 97 L. Ed. 469,

nn tndicenttidesaneesvamibeses 15

Coleman v. Thompson, 501 U. S. 722,

115 L. Ed. 2d 640, 111 S. Ct. 2546 (1991) ....... 17, 18

Commonwealth v. Labron, 547 Pa. 344,

Se Se IED one wkexedvconkesccedssddees 17

Duncan v. Walker, 533 U. S. 167, 150 L. Ed. 2d 251,

Be ee Gk EE cunt cc'ecnctuneeaenes 2, 9, 10, 13

Ex parte Bollman, 4 Cranch (8 U. S.) 75,

Bi, DPE ccnstbnchesneatndsdsnennans . 12

Ex parte Yerger, 8 Wall. (75 U. S.) 85,

Sn Os Se GED esa cncdcetseesdésetehes 11,12

Felder v. Casey, 487 U. S. 131, 101 L. Ed. 2d 123,

Re Re ree 21

Fernandez v. Sternes, 227 F. 3d 977 (CA7 2000) ....... 18

Harris v. Reed, 489 U. S. 255, 103 L. Ed. 2d 308,

a: GR. TED n.d sec ehh scecectekstenes 15, 17

Heflin v. United States, 358 U. S. 415,

3 L. Ed. 2d 407, 79 S. Ct. 451 (1959) ..........005. 19

Houston v. Lack, 487 U. S. 266,

101 L. Ed. 2d 245, 108 S. Ct. 2379 (1988) ........... 2

In re Clark, 5 Cal. 4th 750, 21 Cal. Rptr. 2d 509,

EE vad dwan bueuke deed esseecd 12, 23

In re Jugiro, 140 U. S. 291, 35 L. Ed. 510,

Ee PRE Gadcccdbecccdekantinscecen 19, 20

In re Robbins, 18 Cal. 4th 770, 77 Cal. Rptr. 2d 153,

I dhs cn cu cuuebaudsnenaveenst 17

In re Walker, 10 Cal. 3d 764, 112 Cal. Rptr. 177,

a eee 15

Johnson v. Railway Express Agency, Inc., 421 U.S. 454,

44 L. Ed. 2d 295, 95 S. Ct. 1716 (1975) ............ 21

Keeney v. Tamayo-Reyes, 504 U.S. 1, 118 L. Ed. 2d 318,

Se CE nek va dboddeadeneseachisees 15

Lonchar v. Thomas, 517 U. S. 314, 134 L. Ed. 2d 440,

Se CED cou cvivavecnedbessens 5,17, 18

Mackenzie v. A. Engelhard & Sons Co., 266 U.S. 131,

Bn Bi es Se is Se GD ccciccccccccccces 12

McFarland v. Scott, 512 U. S. 849, 129 L. Ed. 2d 666,

114 S. Ct. 2568 (1994) .......... Riakonesadiesves 12

Michigan v. Long, 463 U. S. 1032, 77 L. Ed. 2d 1201,

EE no ce rubesdnudeesdteksuene 16

Nino v. Galaza, 183 F. 3d 1003 (CA9 1999) ............ 4

People v. Gallardo, 77 Cal. App. 4th 971,

PEED ncnccvensceccesecceses 11

People v. Pendleton, 25 Cal. 3d 371,

158 Cal. Rptr. 343, 599 P. 2d 649 (1979) ........... 22

Rogers v. Peck, 199 U. S. 425, 50 L. Ed. 256,

ns ates 19, 20

Rose v. Lundy, 455 U. S. 509, 71 L. Ed. 2d 379,

Pee a Gh DEDOUEEED c ced ccccosvesvncsoscdacsebe 14

Saffold v. Newland, 250 F. 3d 1262

PPD ceccbeescueesadcsdences 2, 3, 4, 13,14, 17

Siripongs v. Calderon, 35 F. 3d 1308 (CA9 1994) ...... 17

Slack v. McDaniel, 529 U. S. 473, 146 L. Ed. 2d 542,

re Ge CED wv cncenssecocesccectvcne 4,12

Sochor v. Florida, 504 U. S. 527, 119 L. Ed. 2d 326,

SEs Gk OOOO hobo cudasseedecbocssccdas 15

Webster v. Fall, 266 U. S. 507, 69 L. Ed. 411,

GG, GEG 88 eked ccecassdccscessceccads 20

Welch v. Newland, 267 F. 3d 1013 (CA9 2001) ...... 2, 23

Williams v. Taylor, 529 U. S. 420,

146 L. Ed. 2d 389, 120 S. Ct. 1495 (2000) ........ 9,15

United States Statutes

et OG, BERD ce vecesvénvescvesceousésoes dues 14

eh Ge TED precede cecdnescesncconcinaness 19

Ps Oh er PEED 6 6 cd dns cevccéwctwecedsctans 9

Be BG GED 6 been cn dédvscccccssdeocds 2, 3, 5,6

BD ee G BRe ccdevincseevcesetenssecscsess 12, 19

ee De ©, GASED cvvccidcvadéivccusescevdnesvece +

SO. BD. ©, GARD 0 ccccteccdscetvcsesecierseves 15

ae OG. B ©. SAG 0-0 cop cecomnsdcbudivenccssnces 10

as U. S. C. GASSSEEED 2 coc cccsccccccsices es oS ese 15

NS NaS Eh SGM ce a 19

vii

Rules of Court

ED ce ies cc eosceeasébbaanka 13, 22

EE Oe Oe 22

NO ee 22

Federal Rules of Appellate Procedure 4(a) ......... 19, 20

Federal Rules of Appellate Procedure 22(b) ............ 4

Rules Governing Section 2254 Cases in the United States

6 bo occ cedbdsceeeseductéée 21

Rules Governing Section 2255 Proceedings in the United

States District Courts, Rule 11 ................. 19, 21

ED ED 0 cundenuesddsesacdcusecées« 2

State Statutes

Se PGRNEOEED cwnescesdcccecccciccscsevces 12

SE occccscecesceccreesccesss 13, 22

Treatises

W. Church, Habeas Corpus (2d ed. 1893) .......... 11,12

6 B. Witkin & N. Epstein, Cal. Criminal Law

Pi ccobddeunesbans datdodsecetcasosecs 11

9 B. Witkin, Cal. Procedure, Appeal (4th ed. 1997) ..... 22

Miscellaneous

SP SUL ENED o ccccdbadsccccsccooseccccvees 7

Black’s Law Dictionary (7th ed. 1999) ............... 13

viii

Effective Death Penalty Act of 1995, H. Rep. No. 104-23,

See Ge, CUD EE, GPO bc ce cv ccddoccncccues 7,8

Federal Habeas Corpus Reform: Eliminating Prisoners’

Abuse of the Judicial Process, Hearing before the

Committee on the Judiciary, United States Senate, S. Hrg.

104-428, 104th Cong., Ist Sess. (1995) ......... 8,9, 10

Fisher, Writs in California State Courts, in Appeals and Writs

in Criminal Cases (CEB J. Bishop ed., Ist ed. 1982)... 22

Habeas Corpus Reform: Hearings Before the Senate

Committee on the Judiciary on S. 88, S. 1757, and S.1760,

101st Cong., Ist & 2d Sess., S. Hrg. 101-1253, Ser. No. J-

SP badcdebasechesbhbdans ciunéuctanss 7

Judicial Conference of the United States Ad Hoc Committee

on Federal Habeas Corpus in Capital Cases, Committee

Report and Proposal (1989), reprinted in 135 Cong. Rec.

I da pinch. dccadsesdicdbcode ts 6,7

S. 1760, 101st Cong., Ist Sess., proposed 28 U. S. C. § 2256

(1989), reprinted in 135 Cong. Rec. 24,696 (1989) ..... 7

S. 3, 104th Cong., Ist Sess. (1995) ......0..ceeee eee. 16

IN THE

Supreme Court of the United States

ANTHONY NEWLAND,

Petitioner,

vS.

TONY EUGENE SAFFOLD,

Respondent.

BRIEF AMICUS CURIAE OF THE

CRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF PETITIONER

INTEREST OF AMICUS CURIAE-

The Criminal Justice Legal Foundation (CJLF)' is a non-

profit California corporation organized to participate in

litigation relating to the criminal justice system as it affects the

public interest. CJLF seeks to bring the due process protection

of the accused into balance with the rights of the victim and of

society to rapid, efficient, and reliable determination of guilt

and swift execution of punishment.

CJLF has for many years sought to limit the abuse of

federal habeas corpus to delay the finality of valid judgments in

criminal cases. In 1996, Congress enacted a comprehensive

reform for this purpose, of which the new statute of limitations

1. This brief was written entirely by counsel for amicus, as listed on the

cover, and not by counsel for any party. No outside contributions were

made to the preparation or submission of this brief.

Both parties have given written consent to the filing of this brief.

was a key component. The decision in the present case, as

subsequently expanded in Welch v. Newland, 267 F. 3d 1013

(CA9 2001), mandate stayed Oct. 29, 2001, amounts to a partial

judicial repeal of this statute. It gives petitioners unlimited time

to delay between the stages of California collateral review.

This result is directly contrary to the purpose of the statute and

contrary to the interests CJLF was formed to protect.

SUMMARY OF EACTS AND CASE

On April 3, 1990, Tony Saffold was convicted in California

state court of murder, assault with a deadly weapon, and two

counts of robbery, with findings of firearm use associated with

the murder and robberies. J. A. 1. His conviction was af-

firmed, and the California Supreme Court denied review on

April 15, 1992. Jbid. His conviction became “final,” for

present purposes, 90 days later, on July 14, 1992. See 28

U. S. C. §2244(d)(1 (A) (“expiration of the time for seeking

[direct] review’); Supreme Court Rule 13.1 (90 days).

Five years later, on April 17, 1997, Saffold delivered to

prison authorities’ his state petition for writ of habeas corpus

for filing in the Superior Court of San Joaquin County. For

prisoners like Saffold, whose conviction became final before

the effective date of the Antiterrorism and Effective Death

Penalty Act of 1996 (AEDPA), the one-year limitations period

began running on April 24, 1996 and expired on April 24, 1997.

See Duncan v. Walker, 533 U.S. 167, 150 L. Ed. 2d 251, 257,

121 S. Ct. 2120, 2123 (2001) (noting Second Circuit holding to

2. Amicus assumes for the sake of argument that Saffold’s declaration of

his dates of delivery to prison authorities, J. A. 75-76, is true, and that

the mailbox rule set forth in Houston v. Lack, 487 U. S. 266, 276

(1988) applies to state habeas petitions for the purpose of the tolling

provision of the AEDPA. See Saffold v. Newland, 250 F. 3d 1262,

1268 (CA9 2001). Under this rule, Saffold’s April 17 delivery of his

petition to prison authorities, not the May | filing date, would

~ commence tolling of the limitations period.

same effect).’ His initial filing on April 17, 1997, stopped the

limitations period from running just seven days before expira-

tion. The Superior Court denied his petition on June 9, 1997.

J. A. 2. On June 14, 1997, Saffold delivered to prison authori-

ties his habeas petition to the California Court of Appeal, Third

Appellate District. The Court of Appeal denied that petition on

June 26, 1997. Ibid.

On November 13, 1997, after four and one-half months had

passed, he filed an original petition for writ of habeas corpus in

the California Supreme Court. Saffold contends he did not

receive notice of the state Court of Appeal’s denial until

November 10, but the Ninth Circuit does not appear to have

credited this claim, and its opinion proceeds on the premise that

he “waited four and one-half months.” Saffold v. Newland, 250

F. 3d 1262, 1265, and n. 3 (CA9 2001); see also App. to Pet. for

Cert. F-4 (magistrate judge notes false statement in affidavit

and warns Saffold of consequences of perjury). On May 27,

1998, the California Supreme Court denied review “on the

merits and for lack of diligence.” App. to Pet. for Cert. G-1.

On June 4, 1998, Saffold filed an application for writ of

habeas corpus in the United States District Court, Eastern

District of California. See J. A. 3. The Attorney General

moved to dismiss on the ground that Saffold’s application for

writ of habeas corpus was barred by the statute of limitations

set forth in 28 U. S. C. §2244(d). See Pet. for Cert. 4.

The magistrate judge held that the statute “began to run

again” after the Court of Appeal denied relief and had expired

by the time Saffold filed in the California Supreme Court. App.

to Pet. for Cert. F-5. The District Court adopted the findings

and recommendations filed by the magistrate judge, granted

petitioner’s motion to dismiss, and ordered the case dismissed.

App. to Pet. for Cert. E-2. The District Court issued a certifi-

3. The state did not seek review of the “grace period” holding in Walker,

presumably because there was no division in the circuits on the point.

—

cate of appealability on the statute of limitations issue only.

See App. to Pet. for Cert. D-1; 28 U.S. C. §2253(c); Fed. Rule

App. Proc. 22(b). The certificate does not mention any

arguably meritorious underlying claims. It predates Slack v.

McDaniel, 529 U. S. 473, 484-485 (2000).

The Ninth Circuit reversed, holding that Saffold’s petition

was within the limitations period. Saffold, 250 F. 3d, at 1266.

In applying its ruling in Nino v. Galaza, 183 F. 3d 1003 (CA9

1999), it found that the District Court had erred by failing to toll

the federal statute of limitation for the entire period from the

initial filing in the Superior Court to the Supreme Court’s

dismissal. Saffold, supra, at 1265. On May 23, 2001, the Ninth

Circuit filed an order denying the petition for rehearing and

suggestion for rehearing en banc but amended its opinion. Pet.

for Cert. 5; see App. to Pet. for Cert. C-1. This Court granted

certiorari on October 15, 2001.

SUMMARY OF ARGUMENT

The central purpose of the statute of limitations for habeas

cases was to move the cases along to finality by requiring the

petitioner to initiate each stage of review within a reasonable

time. The Ninth Circuit’s rule of open-ended tolling between

the stages of state collateral review would defeat that central

purpose.

In California, there is no appeal from denial of habeas relief

by the Superior Court, but the petitioner can file a successive

petition in the Court of Appeal or Supreme Court. In the

ordinary sense of the word, there is no proceeding “pending” in

the interval between a nonappealable judgment and a successive

petition. If any tolling rule to cover the gap is to be created, it

would be a stretch of the language to cover a perceived neces-

sity or implement an unexpressed intention of Congress. Any

such stretching should be strictly limited to the necessity.

Whether a state court chooses to accept an untimely petition

and decide it on the merits has no bearing on whether the

federal statute of limitations clock was ticking in the interval

preceding the filing of that petition. The statute of limitations

is a federal rule enacted by Congress, and it has nothing to do

with the doctrine of adequate and independent state grounds.

The Ninth Circuit has imported a confused and problematic

body of law into an area where it has no application.

In states where an unsuccessful collateral review petitioner

has a fixed time to initiate review at the next level of state

courts, the federal statute should remain tolled for that interval.

Where there is no fixed interval for the particular procedure in

state law, the federal courts should adopt the interval for the

most closely analogous procedure that does have a fixed

interval. In California, those intervals are 60 days to appeal a

Superior Court judgment to the Court of Appeal and 10 days

from finality to seek Supreme Court review of a Court of

Appeal decision. Habeas petitioners seeking review via

successive petitions who wait longer than other appellants

should not have their federal limitation period tolled during the

excess time.

ARGUMENT

I. Open-ended tolling in the intervals between

state review stages would defeat the central purpose of

the statute, giving dilatory petitioners the benefit of

delays of their own making.

Many times in the years preceding 1996, Congress consid-

ered whether to enact a statute of limitations for habeas cases.

See Lonchar v. Thomas, 517 U. S. 314, 333-334 (1996) (80

bills in 1986-1995). In the Antiterrorism and Effective Death

Penalty Act of 1996 (“AEDPA”), Congress finally adopted 28

U.S. C. §2244(d):

“(d)(1) A 1-year period of limitation shall apply to an

application for a writ of habeas corpus by a person in

custody pursuant to the judgment of a State court. The

limitation period shall run from the latest of—

“(A) the date on which the judgment became final

by the conclusion of direct review or the expiration of

the time for seeking such review;

“(B) the date on which the impediment to filing an

application created by State action in violation of the

Constitution or laws of the United States is removed, if

the applicant was prevented from filing by such State

action;

“(C) the date on which the constitutional right

asserted was initially recognized by the Supreme Court,

if the right has been newly recognized by the Supreme

Court and made retroactively applicable to cases on

collateral review; or

“(D) the date on which the factual predicate of the

claim or claims presented could have been discovered

through the exercise of due diligence.

“(2) The time during which a properly filed application

for State post-conviction or other collateral review with

respect to the pertinent judgment or claim is pending shall

not be counted toward any period of limitation under this

subsection.”

Reduction of unnecessary delay has been a pivotal part of

habeas corpus reform throughout its lengthy legislative history.

The Powell Committee’s report to the Judicial Conference in

1989 proposed habeas reform in capital cases. The committee

noted that reform was needed to cure the “piecemeal and

repetitious litigation, and years of delay between sentencing and

_ ajudicial resolution as to whether the sentence was permissible

under the law.” Judicial Conference of the United States Ad

Hoc Committee on Federal Habeas Corpus in Capital Cases,

Committee Report and Proposal | (1989), reprinted in 135

Cong. Rec. 24,694 (1989). The committee identified serious

problems with the system of collateral review that it broadly

categorized as “unnecessary delay and repetition.” /d., at2. A

prisoner had “no incentive to move the collateral review

process forward until an execution date is set.” /d., at3. The

committee concluded that any serious reform proposal “must

address the problems of delay and repetitive litigation.” /d., at

In 1989-1990 Congress considered the Committee’s

proposal, including a limitation period of six months for capital

cases in qualifying states, with the filing period commencing

upon the appointment of counsel or a refusal of the offer of

counsel. This proposal tolled the six-month period during the

pendency of all state court proceedings. See S. 1760, 101st

Cong., Ist Sess., proposed 28 U.S. C. § 2256 (1989), reprinted

in 135 Cong. Rec. 24,696 (1989). In discussing the proposal’s

intent, insofar as capital cases are concerned, Justice Powell

stated, “The point of the1 80 day filing requirement is to prompt

capital defense attorneys to formulate a habeas petition.

Otherwise, in a capital case, there is literally no incentive to file

a habeas corpus petition until it becomes absolutely necessary.

If a capital defense counsel works diligently from the day of

appointment, he or she will get the state habeas petition filed

with time to spare.” Habeas Corpus Reform: Hearings Before

the Senate Committee on the Judiciary on S. 88, S. 1757, and

S.1760, 101st Cong., Ist & 2d Sess., S. Hrg. 101-1253, Ser. No.

J-101-49, 114 (1991).

Habeas reform did not pass in the 101st Congress or in the

two succeeding Congresses. In the 104th Congress, on Febru-

ary 8, 1995, the House passed H. R. 729, the Effective Death

Penalty Act of 1995. See 141 Cong. Rec. 4120-4121 (1995).

This act carried forward the Powell Committee limitation for

capital cases. See Effective Death Penalty Act of 1995, H. Rep.

No. 104-23, 104th Cong., Ist Sess., 5, 17 (1995). It also added

a statute of limitation for all habeas cases, not just capital cases

in qualifying states. This limitation began upon finality of

direct review, and tolled the limitation “during the pendency of

a properly filed application for State review... .” /d., at 2.

This was substantially the limitation later incorporated into the

AEDPA.

The plain purpose of the limitations statute was stated in the

committee report for the House version.

“(T]he bill is designed to reduce the abuse of habeas corpus

that results from delayed and repetitive filings.... § To

help accomplish [this] purpose, the bill imposes periods of

limitation on federal habeas corpus petitions filed under 28

U. S. C. section2254 .... This reform will curb the

lengthy delays in filing that now often occur in federal

habeas corpus litigation, while preserving the availability of

review when a prisoner diligently pursues state remedies

and applies for federal habeas review in a timely manner.”

H. Rep. No. 104-23, supra, at 9 (emphasis added).

Imposition of a statute of limitations on the filing of state

prisoner petitions in federal court was considered an “essential

ingredient” to any habeas reform legislation in the Congressio-

nal discussion leading up to AEDPA’s enactment. See Federal

Habeas Corpus Reform: Eliminating Prisoners’ Abuse of the

Judicial Process, Hearing before the Committee on the Judi-

ciary, United States Senate, S. Hrg. 104-428, 104th Cong., Ist

Sess., 28 (1995) (statement of California Attorney General Dan

Lungren). “One year for general habeas and 180 days for

capital habeas, with tolling periods; that is, periods where you

don’t count the time while they are going through State review

or State collateral review.” /d., at 74. Similarly, Gale Norton,

Attorney General of Colorado said, “The first major reform is

the creation of a statute of limitations for all habeas petitions.

Statutes of limitations and time deadlines are common through-

out the law, and applying them to habeas petitions is long

overdue.” /d., at 59. James S. Gilmore, Attorney General of

Virginia, noted “the single, most helpful thing the Congress

could do to assist . . . in reducing the delay in capital cases is to

impose the filing deadlines . . . that | know you are consider-

ing.” /d., at 202.

In formulating the final version of the act, Congress was

also cognizant of the suffering of victims’ families and friends

and sought to cure the painfully traumatic practice of setting an

interminable series of execution dates in order to compel capital

prisoners to move to the next level of review. Texas Attorney

General Dan Morales summarized these concerns, “Establish-

ing statutes of limitations for the filing of Federal habeas

applications . . . serves both to streamline litigation and to

alleviate the pain of victims’ families and friends, who under

the current system endure an endless series of execution dates

set only to compel the inmate to move to the next stage of

litigation.” Id., at 34 (emphasis added).

While the problem was most acute in capital cases, Con-

gress did not limit the statute to such cases. It deliberately

included the one-year limitation period in Chapter | 53, applica-

ble to all habeas cases. The statute serves the purpose of

pushing the petitioner along through each stage of review until

the federal habeas petition is filed. At that point, the federal

courts can conduct their review. After conclusion of the first

federal petition, the strict limitations on successive petitions,

see 28 U. S. C. §2244(b)(2), will preclude further federal

review in all but the rarest cases. Pushing the petitioner to file

each stage thus moves the case along to something approaching

true finality.

AEDPA’s undisputed purpose is to promote “the principles

of comity, finality and federalism.” Williams v. Taylor, 529

U. S. 420, 436 (2000). The one-year limitation period of

§ 2244(d)(1) “reduces the potential for delay on the road to

finality by restricting the time that a prospective federal habeas

petitioner has in which to seek federal review.” Duncan v.

Walker, 533 U.S. 167, 150 L. Ed. 2d 251, 262-263, 121 S. Ct.

2120, 2128 (2001). Section 2244(d)(2) specifically “promotes

the exhaustion of state remedies while respecting the interest in

the finality of state court judgments.” /d., 150 L. Ed. 2d, at

262, 121 S. Ct., at 2127. It also “balances the interests served

by the exhaustion requirement and the limitation period.” /d.,

150 L. Ed. 2d, at 263, 121 S. Ct., at 2128. Finally, the section

serves the important function of “protecting a state prisoner’s

ability later to apply for federal habeas relief while state

remedies are being pursued.” /bid. The Ninth Circuit’s view

destroys this careful balance. Instead, its open-ended tolling

eliminates any semblance of finality and, consequently, defeats

the central purpose of the statute.

Filing of habeas applications in state courts has long been

a prerequisite to federal habeas. See 28 U. S. C. §2254(b)

(exhaustion rule). It would be unfair to penalize petitioners for

their time spent exhausting state court remedies. For this

reason, Congress included the tolling provision to insure that

the Federal courts would remain accessible to the diligent

petitioner. Curtailment of delay in pursuit of post-conviction

remedies was a driving force behind the AEDPA legislation. It

is unlikely that Congress would enact open-ended tolling that

renders the one-year limitation period superfluous and ineffec-

tual.

The limitations period serves important policy interests in

the curbing of unnecessary delay by timely presentation of

claims. However, Congressional intent does not include

punishing petitioners for delays beyond their control. During

the 1995 Senate Committee hearings, in response to Senator

Biden’s question regarding possible time limits on when

petitions must be filed, Attorney General Lungren answered:

“The general limitation period of | year and the Powell

Committee provision both contain tolling provisions which

will extend the filing deadlines. This is not meant to be a

criticism in that we all agree that the petitioner should not

be punished for delay beyond his or her control.” Federal

Habeas Corpus Reform, S. Hrg. 104-428, supra, at 146

(emphasis added).

Any argument for a lenient interpretation of “pending”

based on policy must necessarily be limited to what is neces-

sary to protect the diligent petitioner from circumstances

beyond his control. An interpretation that rewards the dilatory

petitioner for delays of his own making would be contrary to

the purpose of the statute.

Il. No proceeding is “pending” in the period between

successive petitions, even if the second petition has a

de facto appellate function.

The present case does not involve an appeal from the denial

of state habeas. Instead, it involves three state habeas petitions,

filed in the trial, intermediate appellate, and state supreme

courts, respectively. Analysis of the case must begin with the

procedure actually invoked in the case.

The traditional rule in both English and in American courts

was that an order denying habeas relief is not appealable, absent

a statute authorizing such an appeal. The petitioner could

instead file another application with another court. See

W. Church, Habeas Corpus § 386, pp. 570-571 (2d ed. 1893);

id., § 389, at 580. Throughout most of the nineteenth century,

this Court’s review of the decision of lower courts in habeas

matters was accomplished through successive original petitions

in this Court. See Ex parte Yerger, 8 Wall. (75 U. S.) 85, 97-

100 (1869) (discussing cases to that point).

By the late nineteenth century, statutes allowing appeals

were the clear trend. See Church, supra, § 389g, at 601-602.

Yet the California Legislature has not authorized such appeals,

and the traditional rule remains in force. The defendant cannot

appeal a denial of habeas relief by the superior court and must

file a new petition with a higher court. See People v. Gallardo,

77 Cal. App. 4th 971, 985-986, 92 Cal. Rptr. 2d 161, 171

(2000); 6 B. Witkin & N. Epstein, Cal. Criminal Law, Criminal

Writs § 80, p. 611 (3d ed. 2000). This new petition is a

successive habeas petition. It is not, of course, subject to the

restrictions on successive petitions at the same level, presenting

-repetitive or piecemeal claims. /n re Clark, 5 Cal. 4th 750, 767,

n. 7, 855 P. 2d 729, 740, n. 7 (1993).

With appeals, there is some ambiguity as to whether the

filing of the appeal is the commencement of a new case.

Compare Slack v. McDaniel, 529 U. S. 473, 482 (2000), with

Mackenzie v. A. Engelhard & Sons Co., 266 U.S. 131, 142-143

(1924). With successive petitions, there is none. This can be

seen clearly from the fact that the successive petition in the

higher court is not necessarily limited to review of the issues

considered in the lower court. The statute expressly contem-

plates addition of new issues. See Cal. Penal Code § 1475.

To be sure, this Court did hold in Yerger that review

through a successive petition was an exercise of appellate

jurisdiction. See 8 Wall., at 102-103. That was a stretch made

necessary by the peculiarities of this Court’s constitutional

jurisdiction, i.e., the Marbury problem. See Ex parte Bollman,

4 Cranch (8 U.S.) 75, 100-101 (1807) (distinguishing Marbury

v. Madison, | Cranch (5 U. S.) 137, 175 (1803)); but see id., at

104-105 (Johnson, J., dissenting). In other jurisdictions where

this was not an obstacle, the de facto review via a successive

petition was understood to be original and not appellate

jurisdiction. See Church, supra, § 389g, at 601.

In Yerger, the term “appellate” in Article III of the Constitu-

tion was stretched to accommodate the imperative necessity of

full habeas review, given the importance of freedom from

illegal detention in our system of constitutional values and the

role of habeas corpus in enforcing that freedom. See 8 Wall.,

at 95-96. Similarly, in McFarland v. Scott, 512 U.S. 849, 858

(1994), the concept of when a habeas corpus proceeding is

“pending” within the meaning of 28 U. S. C. §2251 was

stretched nearly to the breaking point because of the perceived

necessity to avoid execution of a capital defendant before

counsel could prepare a habeas petition. Absent such compel-

ling considerations, this Court has-refused to stretch statutory

language, has turned aside diffuse claims of “unfairness,” and

enforced the habeas statutes as written, including the very

statute at issue here. See Duncan v. Walker, 533 U.S. 167, 150

L. Ed. 2d 251, 263-264, 121 8. Ct. 2120, 2129 (2001).

Nothing in the statutory language requires or even suggests

that a successive petition is “pending” in the interval between

its filing and the dismissal of the prior petition by a lower court.

“Pending” means “[r]emaining undecided; awaiting decision.”

Black’s Law Dictionary 1154 (7th ed. 1999). A case cannot be

considered remaining undecided when it has been decided and

there is no appeal, merely because the decision is not res

judicata and the issue may be redecided in another proceeding.

If such a gap-covering mechanism is to be created, it can only

be as a stretch of statutory language to cover a perceived

necessity or to implement an unexpressed intention of Con-

gress. If such a stretch is to be made, amicus submits that the

Court should recognize it as such and stretch n no further than the

exigency requires.

The Ninth Circuit believed that its approach was necessary

to “permit state courts to address the merits of the petitioner’s

claim.” Saffold v. Newland, 250 F. 3d 1262, 1267 (2001).

Tolling the limitation period between successive petitions is not

necessary for this purpose. The petitioner himself has the

ability to get his case before the state courts in a timely manner.

He need only file his Superior Court petition within ten months

of finality on direct review. Even if there is no tolling in the

gaps at all, he would still have as much time as appellants have

to file in the state Court of Appeal. See Cal. Rules of Court

2(a) (60 days from notice). If denied there, he has the same

right as any other appellant to file a petition for review with the

California Supreme Court, rather than a new original petition as

Saffold chose to file. See Cal. Penal Code §1506. If he runs

out of time, it is the result of his own delay.

Another reason asserted for unlimited tolling in the gaps is

that failure to toll would force the petitioner to file a premature

federal petition before exhaustion to preserve his eventual

federal review. See Saffold, 250 F . 3d, at 1267. For the reasons

just noted, the diligent petitioner is not forced to do so. To

implement the purpose of the statute to push petitioners along

to each stage, see supra, at 9, the dilatory petitioner should not

be permitted to do so. Instead, Rose v. Lundy, 455 U.S. 509,

522 (1982) should be applied to dismiss any such attempt to do

— an end run around the statute.

In part IV, infra, we will propose a rule that is congruent

with the purpose of the statute and more than sufficient to meet

the legitimate needs of diligent petitioners. First, though, it is

necessary to dispose of a red herring in the Ninth Circuit’s

opinion in the present case.

Ill. Whether a state court waives a state timeliness

rule has no bearing on when a petition is “pending”

for the purpose of § 2244(d).

In the present case, habeas petitioner Saffold waited four

and one-half months between denial of his second petition by

the state Court of Appeal and filing of his third petition in the

California Supreme Court. See Saffold v. Newland, 250 F. 3d

1262, 1266 (CA9 2001). The Ninth Circuit interpreted the

California Supreme Court’s disposition of this petition as

addressing the merits, and it further concluded that this disposi-

tion meant that the tolling period included the entire gap. See

id., at 1267-1268. In so concluding, the court conflated the

statute of limitations with the doctrine of adequate and inde-

pendent state grounds. “We fail to see why an untimeliness

ruling entangled with the federal constitutional merits, which is

insufficient to cause a default of a federal claim, should be

sufficient to defeat tolling of the AEDPA limitation.” /d., at

1267. This is a non sequitur. The two rules have entirely

distinct bases, and equating the two is fundamentally erroneous.

On direct review, a state-court holding on an adequate and

independent state ground negates the basis of this Court’s

jurisdiction. That is, if the questions this Court has jurisdiction

to review under 28 U. S. C. § 1257(a) have no effect on the

outcome, then there is no federal question to support jurisdic-

tion. See Sochor v. Florida, 504 U. 8. 527, 535, n. * (1992)

(procedural default is jurisdictional on direct review). On

habeas, procedural default is not jurisdictional, but it is still

based on the adequacy of the state ground to support the

judgment. See Harris v. Reed, 489 U.S. 255, 260-262 (1989).

A prisoner in custody under the authority of a state court

judgment is not in custody in violation of the Constitution, see

28 U. S. C. §2254(a), if he has forfeited his attack on the

judgment. See Brown v. Allen, 344 U.S. 443, 485-487 (1953).

The new statute of limitations has nothing whatever to do

with the basis of the state court’s denial of relief. Timely filing

of the federal petition is an independent prerequisite for federal

habeas relief enacted by Congress as a matter of federal law.

The fact that the state may have a more generous rule and may

consider on the merits petitions that Congress has barred from

federal court cannot and does not lower the federal bar.

If Congress had only wanted to bar in federal court those

claims that were untimely under state law, it would have done

so by strengthening the procedural default rule. However, the

AEDPA actually made few changes to the law of procedural

default. AEDPA codified, at least in part, the rule of Keeney v.

Tamayo-Reyes, 504 U. S. 1 (1992), see 28 U. S. C.

§ 2254(e)(2); Williams v. Taylor, 529 U.S. 420, 434 (2000), but

otherwise left the law regarding state procedural defaults

largely intact. Instead, Congress enacted the new statute of

limitations with the full knowledge that it will bar from federal

court claims that may-be considered on the merits in state court.

In a state which does not have a statute of limitations on

habeas petitions, it is entirely possible for a petition filed more

than 12 months after finality on direct review to be considered

on the merits. See, e.g., Jn re Walker, 10 Cal. 3d 764, 774, 518

P. 2d 1129, 1134 (1974) (over 20 years; facts proffered for

delay disputed; claim unsupportable on the merits); see also

Brief for Criminal Justice Legal Foundation as Amicus Curiae

in Lee v. Kemna, No. 00-6933, pp. 20-22 (discussing propriety

of denying on the merits claims which are arguably defaulted

but clearly meritless). Congress could have authorized federal

review of such claims by starting the clock at the time of

exhaustion of state remedies, and indeed such a limitation was

initially proposed by the same Senators who later sponsored

AEDPA. See S. 3, 104th Cong., Ist Sess., § 508(a) (1995)

(“The limitation period shall run from . . . the date on which

State remedies are exhausted . . .”). Congress decided to scrap

this language and instead start the clock on the date of finality

and stop it during the actual pendency of state collateral review.

The important difference in the two approaches is that the

petitioner's own delays in initiating state proceedings count

against his federal deadline regardless of whether the state and

its courts choose to excuse them for the purpose of state

collateral review. The prisoner who waits 13 months to initiate

state habeas will clearly be barred from federal habeas, even

though the state courts may consider his petition timely and

address the merits.

The reasons why Congress chose to deal with delay through

a statute of limitations rather than a beefed-up default rule are

not difficult to see. Procedural default is a murky area of the

law. It requires federal-court evaluation of whether state laws

are “adequate” and “independent” under standards that remain

unclear after many decades of litigation. See CJLF Lee Brief,

at 5-10; Brief for Criminal Justice Legal Foundation as Amicus

Curiae in Support of the Petition for Writ of Certiorari in

Stewart v. Smith, No. 01-339, pp. 3-5.

Further, as the present case illustrates, a rule that depends

on interpretation of the state court disposition creates perennial

difficulties. In the procedural default area, this Court’s prece-

dents lay down some rules and presumptions, but the results

have been less than fully satisfactory. Michigan v. Long, 462

U. S. 1032, 1040-1041 (1983) created a presumption of

disposition on federal grounds in certain direct review cases.

That presumption causes little harm on direct review, since, if

the presumption turns out to be incorrect, the state court can

always reassert the state ground on remand. See, e.g., Com-

monwealth v. Labron, 547 Pa. 344, 345, 690 A. 2d 228, 228-

229 (1997). On habeas, though, there is no remand, and valid

judgments that actually rest on independent state grounds are

routinely overturned based on a presumption that is doubtful to

begin with and easily misapplied. Ten years after Coleman v.

Thompson, 501 U. S. 722, 740 (1991) and twelve years after

Harris v. Reed, 489 U. S. 255, 264, n. 10 (1989), we still

regularly see decisions such as the Ninth Circuit’s opinion in

the present case, brushing aside the state supreme court’s clear

statement of both the procedural default and the merits as

alternative grounds. See Saffold, 250 F. 3d, at 1267. The real

and fabricated interpretive difficulties with independent state

grounds should not be exported to the statute of limitations,

where the basis of the rule does not require interpretation of the

state decision.

Worst of all, procedural default law as applied by the Ninth

Circuit creates a perverse incentive for states to adopt severe

default rules with narrow or no exceptions. In /n re Robbins,

18 Cal. 4th 770, 811-812, and n. 32, 959 P. 2d 311, 338-339,

and n. 32 (1998), the California Supreme Court clarified and

arguably narrowed its “error of constitutional magnitude”

exception in evident response to the Ninth Circuit’s dubious

decision in Siripongs v. Calderon,-35 F. 3d 1308 (1994).

Decisions such as the present case may be expected to result in

further curtailment of delayed petitions, either through case law,

rule of court, legislative statute, or initiative, if that is the only_

way to have the federal limitation meaningfully implemented.

Cutting off state and federal remedies in one swoop would not

be to the benefit of habeas petitioners generally, but it is the

natural consequence of a line of decisions that punishes states

for generosity.

The principal advantage of a statute of limitations over a

“delayed petition” rule is clarity. Shortly before enactment of

the AEDPA, Lonchar v. Thomas, 517 U. S. 314, 326-327

(1996) held that even a multi-year delay did not authorize

dismissal without a showing of prejudice, a nebulous require-

ment at best, and noted the debate over the appropriateness of

such a rule. /d., at 328. That debate concluded with the

enactment of § 2244(d).

Clarity in deadlines serves the interest of both the prisoner

and the state. The prisoner knows when he must get his papers

in. The state knows when its judgment is truly final. The Ninth

Circuit’s approach robs the state of its finality and simulta-

neously sets a trap for the prisoner. By false analogy to

independent state grounds, an untimely successive petition tolls

the statute during the gap period if and only if the state court

accepts the untimely filing or if its rejection for untimeliness

somehow lacks adequacy or independence. This is not known

or knowable to the petitioner at the time when the clock may or

may not be running.

The Seventh Circuit called this the “Cheshire cat-like

quality” of the Saffold approach. Fernandez v. Sternes, 227

F. 3d 977, 980 (2000). Whatever it is called, it is inimical to

the clarity and certainty that a statute of limitations should

provide. The complexity and confusion of the independent

state grounds doctrine should not be imported into the statute of

limitations. State courts can and should accept or reject

untimely filings in the exercise of whatever discretion state law

gives to them. Their orders should be summary dispositions or

- full opinions according to the needs of the case and the state

judicial system, and not with a glance over the shoulder to

federal habeas. Cf. Coleman, 501 U. S., at 738-739 (declining

to “tell state courts how they must write their opinions”). The

state court’s decision to accept or reject an untimely petition _

should have no bearing on whether the federal limitation clock

was ticking in the interim.

IV. Any “tolling in the gaps” between stages of state

collateral review should be limited to a definite state time

limit, whether directly applicable or “borrowed.”

For the reasons discussed in part II, supra, any tolling in the

intervals between successive petitions in California can only be

based on inference of the policy Congress intended and not on

the wording of the statute or the common understanding of a

proceeding being “pending.” If such tolling is to be allowed, it

must be limited in duration so as to effectuate and not defeat the

purpose of the statute.

Any inference of Congressional “intent” on this point must

be made with the understanding that the members of Congress

who voted for this Act probably did not think about the precise

problem at all. Cf. Beecham v. United States, 511 U.S. 368,

374 (1994) (noting that determining what legislators would

have thought about a particular case is a “hopeless” task).

Amicus has found no indication in the legislative history that

‘the issue even came up. When Congress specified tolling while

a state proceeding was “pending,” its members probably

envisioned state systems similar to the system for federal

prisoners under 28 U.S. C. § 2255. Under that system, there is

a fixed and relatively short time for appeals in the normal

course of procedure. See Fed. Rule App. Proc. 4(a)(1)(B) (60

days when U. S. is a party); Rule 11 of the Rules Governing

Section 2255 Proceedings in the United States District Courts

(“§ 2255 Rules”) (adopting FRAP 4(a)). If the petitioner is

unsuccessful on appeal, the time to seek certiorari review in this

Court is also definite. See 28 U. S. C. §2101(c); Heflin v.

United States, 358 U. S. 415, 418, n. 7 (1959).

We can also draw some inferences about the meaning of

“pending” from cases on 28 U.S. C. § 2251 and its predecessor.

The predecessor statute provided an automatic stay of state

proceedings “against” the petitioner while the federal “proceed-

ings or appeal” were “[pjending.” See /n re Jugiro, 140 U. S.

291, 295 (1891) (quoting Rev. Stat. § 766). In Rogers v. Peck,

199 U. S. 425, 427 (1905), the governor granted a reprieve

immediately after the federal District Court denied relief, to

give the petitioner time to appeal. The petitioner then ungrate-

fully attacked this action as violating the automatic stay. This

Court rejected the argument on the ground that the action was

not “against” the petitioner, not on the ground that no proceed-

ing was pending. See id., at 437. Rogers could be read to

imply that a proceeding was pending in the interval. But see

Webster v. Fall, 266 U. S. 507, 511 (1925) (no precedent

established for questions which are not discussed but “merely

lurk in the record”).

Jugiro addressed the meaning of “pending” regarding a

much more attenuated possibility of further proceedings. In

that case, the state court set a new execution date a week after

this Court’s decision on the first habeas petition, without

waiting for the mandate to issue. See 140 U. S., at 292. Jugiro

claimed this action was void because the first habeas proceed-

ing was still pending. See id., at 294-295. The Court rejected

the argument, holding that “the appeal . . . was no longer

pending,” id., at 295, notwithstanding the possibility that the

Court might yet “suspend or set aside its own judgment.” /d.,

at 296.

From these cases we can infer a principle that a case may be

considered pending when further review remains available in

the normal course of procedure, i.e., via a timely petition or

notice of appeal, but that the mere possibility of further review,

such as rehearing in the rendering court or allowance of an

untimely petition, does not keep “pending” an otherwise final

case. As applied to a system like that governed by Federal

Rules of Appellate Procedure 4(a), a case would be pending

during the normal time of subdivision (1) or during the actual

consideration of a motion under subdivisions (5) or (6), but the

mere possibility that a motion could be filed under subdivisions

(5) or (6) would not keep an action pending until the motion is

actually filed.

The difficult question arises when “timely” and “untimely”

are not precisely defined intervals but instead are matters of

ee ee

judgment. Amicus suggests that the guiding principles for this

situation may be drawn from the cases involving “borrowed”

statutes of limitations.

Congress often creates causes of action without specifying

a statute of limitations. See Board of Regents v. Tomanio, 446

U. S. 478, 483 (1980). It is well established that in these

circumstances courts will “assume that Congress did not intend

to create a right enforceable in perpetuity.” Felder v. Casey,

487 U.S. 131, 140 (1988). The usual solution is to borrow the

most closely analogous state statute, see Johnson v. Railway

Express Agency, Inc., 421 U.S. 454, 464 (1975), provided that

a state limitation will not be adopted if it is “inconsistent with

the federal policy underlying the cause of action under

consideration.” /d., at 465.

States remain free, for the purpose of their own consider-

ation of federal claims, to adopt open-ended rules of timeliness

along the lines of Rule 9(a) of the Rules Governing Section

2254 Cases in the United States District Courts. Congress has

made no attempt to preempt these rules. Cf. Felder, supra, at

138. However, these rules do not control when the clock is

running for the purpose of the statute governing the subsequent

filing in federal court. As discussed, supra, at 15, it is beyond

dispute that a claim considered timely in state court may be

barred from federal review for delay preceding the initial filing.

By the same token, it would be inconsistent with the policy of

the federal statute to permit a state’s open-ended timeliness rule

for the intervals between state courts to permit indefinite delay.

Amicus suggests that where state law provides no definite

time period to initiate review in a higher court, the federal

statute be tolled for the period prescribed by state law for the

most closely analogous procedure which does have a definite

limit. Where a successive petition is used as a de facto appeal

from the trial court to the intermediate appellate court, the

habeas petitioner should have as much time as regular appel-

lants in civil cases, and no more. Cf. § 2255 Rule 11 (adopting

civil case limit). The general rule in California is 60 days. See

Cal. Rules of Court 2(a). As applied to the present case, this

would easily cover the gap between the Superior Court’s denial

of relief on June 9, 1997, and Saffold’s application to the Court

of Appeal only five days later.

For the next level, the proper tolling period is even more

obvious. Saffold had the same right as any other unsuccessful

Court of Appeal litigant to ask the California Supreme Court

for discretionary review. See Cal. Penal Code § 1506.‘ Fora

summary denial of an original habeas petition not consolidated

with the appeal, the petitioner has ten days. See Cal. Rules of

Court 28(b) (10 days from finality in Court of Appeal), 24(a)

(summary writ denials final immediately, with exception for

habeas consolidated with appeal); People v. Pendleton, 25

Cal. 3d 371, 382-383, n. 2, 599 P. 2d 649, 656, n. 2 (1979)

(finality rules, predates exception noted above); Fisher, Writs

in California State Courts § 2.146, p. 321, in Appeals and Writs

in Criminal Cases (CEB J. Bishop ed., I st ed. 1982); id., at 172

(1998 Supp.). This is a tight deadline, to be sure, but not an

unreasonable one.

Instead of petitioning for review, Saffold waited four and

one-half months and filed an original writ petition, which the

California Supreme Court denied for lack of diligence as well

as lack of merit. App. to Pet. for Cert. G-1. Not only did the

Ninth Circuit hold that the entire period was tolled in this case,

but in a subsequent case that court held that its decision in the

present case required tolling the entire time for a petitioner who

waited over four years to file a successive original petition

4. This section has not been amended since 1975. Asa result, it still uses

the term “hearing in the Supreme Court.” The procedure was

redesignated “review” in 1984. The differences between “hearing” and

“review” are not pertinent to this case. See 9 B. Witkin, Cal.

Procedure, Appeal § 860, pp. 895-896 (4th ed. 1997) (summarizing the

change). It is discretionary review, and it is granted primarily to

resolve conflicts in the lower courts or -ttle particularly important

questions. It is functionally equivalent to certiorari in this Court. See

id., §§ 861, 863, at 896, 898.

raising different grounds. Welch v. Newland, 267 F. 3d 1013

(CA9 2001).° A rule more contrary to the purpose of this

statute is difficult to imagine.

There is no reason to toll the statute any longer for one

mode of review than for the other. Although filing an original

petition remains a proper procedure, see /n re Clark, 5 Cal. 4th

750, 767, n. 7, 855 P. 2d 729, 740, n. 7 (1993), the policies

underlying the federal statute do not depend on the choice. The

definition of “pending” may be stretched to give the prisoner

who files a successive writ application as much time as the one

who files a petition for review; there is no justification in

language or policy for giving him more time.

When a California prisoner has been denied habeas relief by

the Court of Appeal, the federal limitation period should begin

running again when the time to petition for review in the

California Supreme Court expires. The time should continue to

run until an original writ petition has actually been filed with

that court. In the present case, Saffold’s 12 months had long

expired by the time he filed his petition. Regardless of how the

California Supreme Court’s disposition of the petition is

interpreted, Saffold did not meet the deadline established by

Congress for a federal habeas petition. The District Court

correctly dismissed it.

5. The Ninth Circuit has stayed its mandate in Welch pending this Court's

decision in the present case.

CONCLUSION

The decision of the Court of Appeals for the Ninth Circuit

should be reversed.

November, 2001

Respectfully submitted,

KENT S. SCHEIDEGGER

Counsel of Record

MARITZA B. MESKAN

Attorneys for Amicus Curiae

Criminal Justice Legal Foundation

~*~

}, ee

F\LED

No. 01-301 JAW 10 2002

In the

Supreme Court of the United States

ANTHONY NEWLAND, Warden

Petitioner,

Vv.

TONY EUGENE SAFFOLD,

Respondent.

On Writ of Certiorari

to the Court of Appeals for the Ninth Circuit

BRIEF AMICI CURIAE OF THE NATIONAL

ASSOCIATION OF CRIMINAL DEFENSE LAWYERS

AND NATIONAL ASSOCIATION OF FEDERAL

DEFENDERS IN SUPPORT OF RESPONDENT

DAVID M. PORTER PETER GOLDBERGER

Counsel of Record 50 Rittenhouse Place

Co-Chair, NACDL Ardmore, PA 19003-2276

Amicus Committee (610) 649-8200

801 K Street, 10th Floor

Sacramento, CA 95814 Of Counsel

(916) 498-5700

TABLE OF CONTENTS

Page

QUESTION PRESENTED BY AMICI CURIAE .......

TABLE OF AUTHORITIES ..............000eee5. iii

INTERESTS OF AMICI CURIAE ...........0000000 1

SUMMARY OF ARGUMENT ........... 0.000000. 2

EE 4

I. The Decision of the Court Below Should Be

Affirmed On the Ground that Mr. Saffold Filed

His Federal Habeas Petition Within a Reasonable

Time Under the Judicially Created Grace Period..

Il. _— If this Court Holds that the Tolling Provision

Applies and that the Time Between a State Court's

Decision Denying a Post-Conviction Application

and the Filing of a Subsequent Application Is Not

Tolled from the Limitation Period, the Holding

Should Be Applied Prospectively Only Because It

Would Overrule Clear Precedent, Contradict the

Purposes of the Habeas Corpus Statute, and Be

Manifestly Inequitable In ThisCase ..... 10

ccc cdbeeeebdeGeedsecscseccece se 17

TABLE OF AUTHORITIES

Page

Cases

Allen v. State Board of Elections, 393 U.S. 544 (1969) .... 14

American Trucking Ass'ns v. Smith, 496 U.S. 167 (1990)

secsnaeennttesenndenasinaeieamnsetniaadenetanammmneiesandiingmensinemaneias 11,14

Barnett v. Lemaster, 167 F.3d 1321 (10th Cir. 1999) ...... 13

Bennett v. Artuz, 199 F.3d 116 (2d Cir. 1999), aff'd on

other grounds, 531 U.S. 4 (2000) .........sesseneeenenenenenennens 13

Block v. North Dakota, 461 U.S. 273 (1983) .......ccseseeeeeees 6

Chevron Oil Co. v. Huson, 404 U.S. 97 (1971) ......... passim

Cipriano v. Houma, 395 U.S. 701 (1969) ......crececeesereeeeees 14

Coleman v. Thompson, 501 U.S. 722 (1991) .........seseseeeeeeees 4

Duncan v. Walker, 533 U.S. 167, 121 S. Ct. 2120 _—s ,

Fernandez v. Sternes, 227 F.3d 977 (7th Cir. 2000) ........ 13

Florida v. Long, 487 U.S. 223 (1988) .........cceceseeeeeenenenenees 14

Gibson v. Klinger, 232 F.3d 799 (10th Cir. 2000) ........... 13

Harper v. Virginia Department of Taxation, 509 U.S. 86

en 11

Heflin v. United States, 358 U.S. 415 (1959) ......ccccccseeeeeee 5

Lackawanna County DistrictAttorney v. Coss, 532 U.S.

ee Fe 5

Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501

ae Se GOD conesesnsncsntsnenennssastittiinaianertienmeameienennmanitates 11

Lindh v. Murphy, 96 F.3d 856 (7th Cir. 1996), rev'd on

other grounds and remanded, 521 U.S. 320 (1997) ............ 8

Lonchar v. Thomas, 517 U.S. 314 (1996) «2... 14, 16

Melancon v. Kaylo, 259 F.3d 401 (5th Cir. 2001) ............ 13

Mills v. Norris, 187 F.3d 881 (8th Cir. 1999) .............000+. 13

Northern Pipeline Construction Co. v. Marathon Pipe Line

Sie GP ED cinantisinenmaneennemmanenien 14

Nyland v. Moore, 216 F.3d 1264 (11th Cir. 2000) .......... 13

O'Sullivan v. Boerckel, 526 U.S. 838 (1999) ..........ccseceseees 9

Payton v. Brigano, 256 F.3d 405 (6th Cir. 2001), petition

GOP CIEE, GEG ae TED sitcstinciniianittcinssniterninninianiiaiins 13

Peterson v. Gammon, 200 F.3d 1202 (8th Cir. 2000) ...... 13

Reynoldsville Casket Co. v. Hyde, 514 US. 749 (1995)

sanenieiiiiteldeiiisliaiesccliaat clei ann Mt L aces, 10, 11

Ryder v. United States, 515 U.S. 177 (1995) ...sssocsssee 3,11

Saffold v. Newland, 250 F.3d 1262 (9th Cir. 2001) ......... 13

Sohn v. Waterson, 84 U.S. (17 Wall.) 596 (1873) ......s... 7

Solem v. Stumes, 465 U.S. 638 (1984) .........cccccseeeeeseeees 15

St. Francis College v. Al-Khazraji, 481 U.S. 604 (1987)

edenssustnsecssqueneqtennsesenaneusenaseDsneneeseSEINSNSSIOUtSGSGSSCSSESESSROUEIOONED 11,14

Swartz v. Meyers, 204 F.3d 417 (3d Cir. 2000) seseeeneeen 13

Taylor v. Lee, 186 F.3d 557 (4th Cir. 1999), cert. denied,

yy 13

Terry v. Anderson, 95 U.S. (5 Otto) 628 (1877) ..........0+0+ 7

Texaco v. Short, 454 U.S. 516 (1982) ......c.cssseererersereeeeeees 7

Vasquez v. Hillery, 474 U.S. 25411986) .......-ecsseseseeneenenes 4

Ex parte Watkins, 28 U.S. 193 (1830) ccieenaaidmemaneepesiensanmvanss 14

Wilson v. Iseminger , 185 U.S. 55 (1902) .......--seseeeeeeeeeeeees 7

Statutes and Rules

2B U.S.C. § 22A1(CM1)-(4) ccssnnssncesenseeseeeneesneeneesnereee 4

y Leb a + ee passim

EE 5, 16

Rule 9(a), Rules Governing Section 2254 Cases ............ 4

Miscellaneous

1 James S. Liebman & Randy Hertz, Federal Habeas

Corpus Practice and Procedure § 2.4b (4th ed. 2001)

BRIEF AMICI CURIAE OF THE

NATIONAL ASSOCIATION OF CRIMINAL

DEFENSE LAWYERS AND THE NATIONAL

ASSOCIATION OF FEDERAL DEFENDERS

IN SUPPORT OF RESPONDENT

INTERESTS OF AMICI CURIAE

The NACDL, a nonprofit corporation, is the only

national bar association working in the interest of public

and private criminal defense attorneys and their clients.

NACDL was founded in 1958 to ensure justice and due

process for persons accused of crimes; foster the integrity,

independence and expertise of the criminal defense

profession; and promote the proper and fair

administration of justice." NACDL has 10,000 members

nationwide -- joined by 80 state and local affiliate

organizations with 28,000 members -- including private

criminal defense lawyers, public defenders and law

professors committed to preserving fairness within

America’s criminal justice-system. The American Bar

Association recognizes NACDL as an affiliate

organization and awards it full representation in its

House of Delegates. In this case, the NACDL is

concerned because reversal of the Ninth Circuit's decision

will adversely affect hundreds of pro se habeas

petitioners by depriving them of any federal habeas

merits review.

1. No counsel for any party has authored this brief

in whole or in part, and no person or entity, other than

NACDL or NAFD, made any monetary contribution to

its preparation or submission. See Rule 37.6, Sup. Ct.

Rules. The parties have consented to the filing of this

brief, and letters of consent have been lodged with the

Clerk of the Court. Rule 37.3(a).

The National Association of Federal Defenders

(NAFD) was formed in 1995 to enhance the

representation provided under the Criminal Justice Act,

18 U.S.C. § 3006A, and the Sixth Amendment to the

United States Constitution. The Association is a

nationwide, non-profit, volunteer organization whose

membership includes attorneys and support staff of

Federal Defender offices. One of the NAFD's missions is

to file amicus curiae briefs to ensure that the position of

indigent defendants in the criminal justice system is

adequately represented.

SUMMARY OF ARGUMENT

1. With all due respect to the parties and the

courts below, it appears to us that the issue has not been

properly, framed. Respondent Saffold's conviction

became final long before the effective date of the

Antiterrorism and Effective Death Penalty Act (AEDPA)

and its new statute of limitation on federal habeas corpus

' petitions. Application of the limitation period to habeas

corpus petitioners such as Mr. Saffold violates the

Constitution's Due Process Clause, as circuit courts have

unanimously held. Accordingly, the courts have crafted

a "grace period" within which such petitioners can file

their federal habeas petitions. The AEDPA tolling

provision, 28 U.S.C. § 2244(d)(2), by its express terms,

applies only to the limitation period “under this

subsection," i.e., the limitation period set forth in section

2244(d)(1), not the judicially created grace period, and

therefore does not apply, as such, to this case.

_.___ Itisincorrect, we submit, to attempt to resolve this

case by parsing the precise terms of section 2244(d)(2) to

divine what Congress intended by the word “pending” in

that statute, because section 2244(d)(2) does not apply to

this case. It is not entirely irrelevant, however, because

in determining what is a "reasonable time" under the

grace period, this Court should take into account the

policy considerations that led Congress to enact the

tolling provision. As this Court stated in Duncan v.

Walker, 533 U.S. 167, 121 S. Ct. 2120, 2127-28 (2001), the

tolling provision is intended, in large part, to promote the

exhaustion of state remedies. Accordingly, we submit

that a reasonable time for filing a federal petition for

prisoners whose convictions became final before the

AEDPA is a one-year period from the AEDPA's

enactment date, but excluded from that period should be

the time reasonably necessary to exhaust state remedies

with respect to federal claims affecting the judgment

attacked by the federal habeas petition, and then to

prepare and file a federal habeas corpus petition. This

rule promotes federalism, comity, and finality, without

depriving state prisoners of their right to obtain federal

court review of properly exhausted federal questions

about the validity of their convictions and sentences.

2. For the reasons discussed under Point 1 of this

Brief, or for those advanced by the respondent, this Court

should affirm the judgment of the court below. If the

Court reverses the judgment, however, then any rule it

announces that is less favorable than that heretofore

adopted by the circuits should be applied prospectively

only. Ina line of cases extending from Chevron Oil Co. v.

Huson, 404 U.S. 97 (1971), to Ryder v. United States, 515

U.S. 177 (1995), this Court has recognized that

retroactive application of newly announced constructions

of statutes of limitation can produce "grave disruption or

inequity." Id. at 184. A decision in favor of the Warden

would overrule clear precedent of the lower courts,

impair the purposes that the habeas corpus statute is

designed to protect, and be manifestly inequitable. This

case thus satisfies the factors articulated in Chevron Oil to

justify a purely prospective application of any rule the

Court may announce that would be adverse to the

interest of prisoners who exhausted their state remedies

and then filed a federal habeas corpus petition in good

faith reliance oma fair construction of the AEDPA, under

the developing case law of the lower federal courts.

ARGUMENT

The Decision of the Court Below Should Be Affirmed

On the Ground that Mr. Saffold Filed His Federal

Fr 1 --. Muststn.n Within « Raacanahle Time Inder the

§ 2241(c)(1)-(4); Lackawanna County Dist.Attorney v. Coss,

532 U.S. 394, __, 121 S. Ct. 1567, 1573 (2001).

In non-capital cases, practical considerations also

counseled against a delay in challenging one's conviction.

As time passes, memories may fade, witnesses may die or

become difficult to locate, documents may be lost.

Petitioners have the burden of proof to establish their

entitlement to habeas relief, and face various adverse

presumptions (e.g., 28 U.S.C. § 2254(d)); thus, delay was

ordinarily not in prisoners’ practical interests. See

Judicial Conference of the United States, Ad Hoc

Committee on Federal Habeas Corpus in Capital Cases,

Committee Report and Proposal 5 ("[iJIn contrast [to

capital habeas petitioners], prisoners serving an ordinary

term of years have every incentive to bring their claims

properly filed state post-conviction petition for post-

conviction relief is "pending." The limitation provision

and tolling provision work in tandem; the former

promotes the interest of the finality of state court

judgments by establishing an explicit time period within

which to file a federal petition, against which the latter

balances the interests of federalism and comity

underlying the requirement that petitioners exhaust their

claims in state court before filing their federal petition.

Duncan v. Walker, 533 U.S. 167, __- __, 121 S. Ct. 2120,

2127-28 (2001).

In cases such as Mr. Saffold's, however, where the

statute of limitation, as set forth in 28 U.S.C. § 2244(d)(1),

had expired prior to the enactment of the AEDPA, the

statute cannot be applied because it would violate the

ee Oe —n Oe ak, tho Dasetteawe th, Danan aaneaws PHP,

This judicially created grace period is consonant with a

long line of precedent of this Court. See Texaco v. Short,

454 U.S. 516,527 n.21 (1982); Wilson v. Iseminger , 185 U.S.

55, 63 (1902); Terry v. Anderson, 95 U.S. (5 Otto) 628, 632-

633 (1877); Sohn v. Waterson, 84 U.S. (17 Wall.) 596, 599-

600 (1873).

The parties herein and the lower courts proceeded

on a fundamentally flawed assumption that this case

hinges on a precise and literal interpretation of the

statutory tolling provision. That provision applies, by its

express terms, only to the limitation period "under this

subsection,” 28 U.S.C. § 2244(d)(2), viz., the limitation

period set forth in section 2244(d)(1). As discussed above,

that limitation period cannot constitutionally be applied

to this case. Insvead, this case is governed by a "grace

narktaw® «8 &adiiatat, Aasdaad aanattieh tn, ADastietenes gat.

As noted above, the circuit courts have

unanimously held that one year is a "reasonable" amount

of time for the grace period. See, e.g., Lindh v. Murphy, 96

F.3d 856, 866 (7th Cir. 1996) (en banc) ("Section 2244(d) is

short enough that the ‘reasonable time’ after April 24,

1996, and the one-year statutory period coalesce"), rev'd

on other grounds and remanded, 521 U.S. 320 (1997). The

rule cannot end there, however. Because this Court

requires prisoners to first exhaust their claims in state

court, the grace period must also accommodate the

exhaustion doctrine. Cf. 28 U.S.C. § 2244(d)(2). This

Court should hold, therefore, that for prisoners whose ~

convictions became final before the AEDPA's enactment,

a federal habeas petition will be considered timely if filed

within a one-year period after April 24, 1996. Excluded

from that one-year grace period should be the time

reasonably necessary to exhaust state remedies with

respect to federal claims affecting the judgment attacked

by the federal habeas petition, and then to prepare and

file a federal habeas corpus petition.’ See O'Sullivan v.

2. Habeas petitioners should also be afforded a

reasonable period of time, after receiving notice from the

state's highest court of the denial of the state application,

to filing a federal habeas petition. We suggest the Court

adopt the thirty-day period from Rule 4(a)(1)(A), Federal

Rules of Appellate Procedure, given the civil nature of

habeas corpus, and the parity of direct appeal and habeas

corpus review. See 1 James S. Liebman & Randy Hertz,

Federal Habeas Corpus Practice and Procedure § 2.4b (4th ed.

2001).

This is not to suggest, however, that the prisoner's

state post-conviction application does not remain

“pending,” for post AEDPA cases actually governed by

Boerckel, 526 U.S. 838 (1999) (requiring habeas petitioners

to present claims to states’ highest courts).°

Applying this rule to the facts of this case, one must

conclude that Mr. Saffold's federal habeas petition was

timely filed. While he did not file his federal petition on

or before April 24, 1997, he had by that time filed a state

application challenging his conviction. His federal

petition was filed only eight days after the state's highest

court denied his state application.

We have no quarrel with the Warden's position that

it is the Court's task is to construe what Congress has

enacted and that examination of the language of "'the

statute’ is where such task begins. Petitioner's Brief at 21

(quoting Walker, 533 U.S. at___, 121 S. Ct. at 2124). The

Warden proceeds immediately to parse the tolling

provision, and it is here that we part company. The

tolling provision applies, by its express terms, only to the

"period of limitation under this subsection." 28 U.S.C.

§ 2244(d)(2) (emphasis added). This Court's task begins,

therefore, with examination not of the tolling provision

but of the limitation provision. As discussed above,

section 2244(d)(2)'s terms, for the additional time during

which certiorari could be sought, or if sought remains

before this Court. The better construction of section

2244(d)(2) does continue the tolling for that additional

time.

3. Excluding the time required to exhaust

remedies also respects Congress’ view, expressed in

section 2244(d)(2), that it is reasonable to toll the statute

of limitation — in cases to which it applies — while claims

are being presented to the state court.

because the Constitution prohibits the narrow application

of the limitation provision to this case, the exact words of

the statutory tolling provision are not controlling.

II.

If this Court Holds that the Tolling Provision Applies

and that the Time Between a State Court's Decision

Denying a Post-Conviction Application and the Filing

of a Subsequent Application Is Not Tolled from the

Limitation Period, the Holding Should Be Applied

Prospectively Only Because It Would Overrule Clear

Precedent, Contradict the Purposes of the Habeas

Corpus Statute, and Be Manifestly Inequitable In

This Case.

Even if this Court were to reverse the judgment of

the court below, it should declare its ruling to be-

prospective only.* A long line of cases, beginning with

Chevron Oil Co. v. Huson, 404 U.S. 97 (1971), has refused

to apply newly-specified statutes of limitation

retroactively to bar suits that, under controlling

precedent, were otherwise filed in a timely manner.

Reynoldsville Casket Co. v. Hyde, 514 U.S. 749, 761-62 (1995)

(Kennedy, J., concurring) (noting " long tradition of

judicial authority to formulate rules ensuring fair and

predictable enforcement of statutes of limitations, for

instance, through rules pertaining to tolling or waiver’);

see also Lampf, Pleva, Lipkind, Prupis & Petigrow v.

4. If the Court holds that the tolling provision

applies, we believe Mr. Saffold's construction of the

statute best effectuates its plain meaning and promotes

the principles of comity, finality, and federalism that

underlie the AEDPA. The argument set forth in the text

in Section II is presented in the alternative.

Gilbertson, 501 U.S. 350, 370 (1991) (O'Connor, J.,

dissenting); American Trucking Ass‘ns v. Smith, 496 U.S.

167 (1990); St. Francis College v. Al-Khazraji, 481 U.S. 604

(1987).° Because a ruling in Petitioner's favor would meet

all three of the so-called "Chevron Oil factors,” it should be

applied — if it is to be applied at all - prospectively.

In Chevron Oil, the issue was whether a federal or

state statute of limitation applied to the plaintiff's cause

of action. This Court held that the state statute of

limitation applied, but it noted that because the plaintiff

filed his suit in compliance within the then-prevailing

federal statute of limitation, it "must consider the

[plaintiff's] argument that the state statute of limitations

should be given nonretroactive application." 404 U.S. at

105. The Court considered three "separate factors:"

First, the decision to be applied

nonretroactively must establish a new

principle of law, either by overruling clear

past precedent on which litigants may have

relied, or by deciding an issue of first

impression whose resolution was not clearly

foreshadowed. Second, it has been stressed

5. While the majority opinion in Ryder v. United

States, 515 U.S. 177, 184 (1995), may have cast a cloud

over the "continuing validity" of Chevron Oil after Harper

v. Virginia Dept. of Taxation, 509 U.S. 86 (1993), and

Reynoldsville Casket Co., 514 U.S. 749, it acknowledged

that "grave disruption or inequity involved in awarding

retrospective relief" might “bring [the Chevron Oil]

doctrine into play." Id. at 184. As discussed below,

retroactive application would result in precisely such

grave inequities.

that we must weigh the merits and demerits

in each case by looking to the prior history of

the rule in question, its purpose and effect,

and whether retrospective operation will

further or retard its operation. Finally, we

have weighed the inequity imposed by

retroactive application, for where a decision

of this Court could produce substantial

inequitable results if applied retroactively,

there is ample basis in our cases for avoiding

the injustice or hardship by a holding of

nonretroactivity.

404 U.S. at 106-07 (citations and internal qutetens

omitted).

After noting that its holding overruled a long line

of circuit decisions, the Court held that it would be

"anomalous indeed" to bar the plaintiffs lawsuit

retroactively. "A primary purpose underlying the

absorption of state law as federal law in the Lands Act

was to aid injured employees by affording them

comprehensive and familiar remedies. Yet retroactive

application of the Louisiana statute of limitations to this

case would deprive the respondent of any remedy

whatsoever on the basis of superseding legal doctrine

that was quite unforeseeable.” 404 U.S. at 107-08 (citation

omitted). The Court reasoned that the plaintiff could not

have "slept on his rights” at a time when he could not

have known the time limitation that the law imposed on

him. It concluded that the right to recover for

serious injuries that “may significantly undercut [the

plaintiff's) future earning power" was entitled to the

protection of nonretroactive application, which “here

simply preserves his right to a day in court." 404 U.S. at

108.

In this case, the first Chevron Oil factor is plainly

met - as the Warden forthrightly acknowledges, his

proposed interpretation of "pending" is at odds with "the

line of circuit court cases providing for tolling during the

gaps between tiers of state collateral review." Petitioner's

Brief at 8. Indeed, every circuit to have considered the

issue appears to have rejected "the gap theory.”* A ruling

in the Warden's favor, therefore, would both “overrul[e]

clear past precedent on which litigants may have relied,”

and “decid[e] an issue of first impression whose

resolution was not clearly foreshadowed." Chevron Oil,

404 U.S. at 106.

Similarly, the second Chevron Oil factor - whether

retroactive application would be inconsistent with the

purpose of the underlying statute - militates sharply in

6. See Petitioner's Brief at 40-46 (citing Saffold v.

Newland, 250 F.3d 1262 (9th Cir. 2001); Fernandez v.

Sternes, 227 F.3d 977 (7th Cir. 2000); Mills v. Norris, 187

F.3d 881 (8th Cir. 1999); Barnett v. Lemaster, 167 F.3d 1321

(10th Cir. 1999); Peterson v. Gammon, 200 F.3d 1202 (8th

Cir. 2000); Swartz v. Meyers, 204 F.3d 417 (3d Cir. 2000);

Gibson v. Klinger, 232 F.3d 799 (10th Cir. 2000); Melancon

v. Kaylo, 259 F.3d 401 (5th Cir. 2001). To this list should

be added the decisions in Bennett v. Artuz, 199 F.3d 116

(2d Cir. 1999), aff'd on other grounds, 531 U.S. 4 (2000),

Payton v. Brigano, 256 F.3d 405, 408 (6th Cir. 2001),

petition for cert. filed (Oct. 5,2001), Taylor v. Lee, 186 F.3d

557, 560-61 (4th Cir. 1999), cert. denied, 528 U.S. 1197

(2000), and Nyland v. Moore, 216 F.3d 1264, 1267 (11th Cir.

2000). The only authority in the nation for “the gap

theory” is a lone district court in the Second Circuit. See

Robinson v. Ricks, 163 F. Supp. 2d 155 (E.D.N.Y. 2001).

Mr. Saffold's favor. In a description both simple and

eloquent, this Court explained that the purpose of the

Great Writ is "to examine the legality of the commitment"

and “to liberate an individual from unlawful

imprisonment." Ex parte Watkins, 28 U.S. 193, 202, 203

(1830). It is a remedy that "has been for centuries

esteemed the best and only sufficient defense of personal

freedom,” which, if withdrawn, "risk{s] injury to an

important interest in human liberty." Lonchar v. Thomas,

517 US. 314, 324 (1996) (internal quotations omitted).

There can be no question that this important

interest in human liberty is at least on par with other

rights and legal interests this Court has found deserving

of protection against retroactive divestiture: viz., the

property interests of cities, bondholders and others

connected with municipal utilities, Cipriano v. Houma, 395

U.S. 701 (1969); the integrity of elections, Allen v. State Bd.

of Elections, 393 U.S. 544 (1969); a state's taxation of

highway use, American Trucking Ass’ns, Inc., 496 U.S. 167;

a State's ability to make available to its employees

annuities of sex-based pension plans offered by insurance

companies on the open market, Florida v. Long, 487 U.S.

223 (1988); the right to be free of racial discrimination in

applying for tenure, Saint Francis College, 481 U.S. 604; the

right to have non-Article [II judges determine non-core

issues in bankruptcy proceedings, Northern Pipeline

Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50 (1982)

(plurality opn.); the authority of a police officer to initiate

further conversation with an accused after the latter has

invoked his right to counsel, Solem v. Stumes, 465 U.S. 638

(1984).

Finally, the last and most important Chevron Oil

factor examines whether "injustice or hardship" can be

avoided by a holding of nonretroactivity. This factor

weighs most heavily in favor not only of Mr. Saffold but

also hundreds of other habeas petitioners who relied in

good faith on this Court's assurance that as long as they

properly exhausted their claims in state court, the federal

habeas court would consider the merits of their claims,

unless they were denied by the state court on

independent and adequate state grounds. First,

application of an adverse decision to Mr. Saffold would

produce a substantially inequitable result given the fact

that, acting pro se, he proceeded with appropriate (indeed

astounding) alacrity in litigating his post-conviction

petition through the state courts and in filing his federal

petition. It is undisputed that he delivered to prison

authorities his petition to the state trial court before the

one-year grace period expired, and that he delivered his

petition to the state appellate court only five days after the

superior court denied the petition. See Petitioner's Brief

at 4. While the Warden describes Mr. Saffold as "waiting

over four and one-half months,” Petitioner's Brief at 5

(emphasis added), after the denial of his habeas petition

in the appellate court before filing a petition in the state's

high court, according to Mr. Saffold's unrebutted

declaration, he did not receive word of the appellate

court's denial until November 10, 1997, Pet. App. A-9;

J.A. 79, and he delivered his petition for the high court the

very same day. J.A. 78. Eight days after the high court

denied his petition, he delivered his federal petition to

the prison authorities. J.A. 77. This is not the case of a

petitioner who "slept on his rights."

While this Court cannot become familiar with the

circumstances of hundreds of other habeas petitioners

who, like Mr. Saffold, sustained convictions that became

final before enactment of the AEDPA and initiated state

; 16

post-conviction challenges during the one-year grace

period, it cannot be denied that a substantial percentage

of them relied in good faith on decisions such as Saffold,

Nino v. Galaza, and others cited in note 6, supra, which

essentially held that the statute is tolled the entire time

from the filing of the first state habeas petition until the

state's highest court rejects the final collateral challenge.

For this group of litigants, the retroactive application of

a restrictive definition of "pending" would forever bar any

federal merits review of claims that they are being held in

custody "in violation of the Constitution or laws or

treaties of the United States," 28 U.S.C. § 2254(a), and

would risk grave injury "to an important interest in

human liberty." Lonchar, 517 U.S. at 324. For these

reasons, any ruling adverse to Mr. Saffold should be

announced on a prospective basis only.

CONCLUSION

The judgment of the Court of Appeals for the Ninth

Circuit should be affirmed. In the alternative, any

decision adopting a narrower interpretation of the term

"pending" in section 2244(d)(2) should be applied

prospectively only.

Respectfully submitted,

DAVID M. PORTER

Counsel of Record

PETER GOLDBERGER

Of Counsel

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.