Amicus Curiae Brief — Duncan v. Walker

Supreme Court, U.S.

(4) FILED

JAW § 200 a.

No. 00-121 8 200!

: CLERK

IN THE eee

Supreme Court of the United States

GEORGE DUNCAN, Petitioner,

v.

SHERMAN WALKER, Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SECOND CIRCUIT

BRIEF AMICUS CURIAE OF MASSACHUSETTS,

ALABAMA, DELAWARE, HAWAII, IOWA, MARYLAND,

MISSISSIPPI, MISSOURI, MONTANA, NEBRASKA,

NEVADA, OHIO, PENNSYLVANIA, SOUTH DAKOTA,

TENNESSEE, UTAH, VIRGINIA, WASHINGTON, AND

WEST VIRGINIA IN SUPPORT OF THE PETITIONER

THOMAS F. REILLY

Attorney General of Massachusetts

CATHERINE E. SULLIVAN*

Assistant Attorney General

* Counsel of Record

WILLIAM J. MEADE

Assistant Attorney General

One Ashburton Place

Boston, Massachusetts, 02108

(617) 727-2200

Counsel for Amici States

BILL PRYOR

Attorney General

State of Alabama

M. JANE BRADY

Attorney General

State of Delaware

EARL ¢ IZAI

Attorney General

State of Hawaii

THOMAS J. MILLER

Attorney General

State of Iowa

J. JOSEPH CURRAN, Jr.

Attorney General

State of Maryland

MICHAEL C. MOORE

Attorney General

State of Mississippi

JEREMIAH W. (JAY) NIXON

Attorney General

State of Missouri

MIKE McGRATH

Attorney General

State of Montana

DON STENBERG

Attorney General

State of Nebraska

FRANKIE SUE DEL PAPA

Attorney General

State of Nevada

BETTY D. MONTGOMERY

Attorney General

State of Ohio

D. MICHAEL FISHER

Attorney General

Commonwealth of Pennsylvania

MARK BARNETT

Attorney General

State of South Dakota

PAUL G. SUMMERS

Attorney General and Reporter

State of Tennessee

MARK L. SHURTLEFF

Attorney General

State of Utah

MARK L. EARLEY

Attorney General

Commonwealth of Virginia

CHRISTINE O. GREGOIRE

Attorney General

State of Washington

DARREL V. McGRAW, Jr.

Attorney General

State of West Virginia

Question Presented

Whether a prior federal habeas corpus

petition is an "application for State post-

conviction or other collateral review" within the

meaning of 28 U.S.C. § 2244(d)(2), which

provides that the one-year statute of limitations

for federal habeas corpus petitions set forth in the

Antiterrorism and Effective Death Penalty Act of

1996 (AEDPA) is tolled during the pendency of

such an application.

Table of Contents

Page

Bee OE BIE oo 0 60 hw i nekknx60ksskscbsteesn iv

Statement of Amici Interest ...........ccccccccccccces 1

DOTY GE APUNUNEE oc oon sccececadgeveeatisnncanes 3

RUE oo cocecdnesenvecsdésceecGecewisesasnntsue a

I. | BYITS PLAIN TERMS, § 2244(d)(2) REFERS

ONLY TO APPLICATIONS FOR STATE

ok Se rr ere pn Cen en 6

Il. CONSTRUING § 2244(d)(2) AS LIMITED TO

STATE PROCEEDINGS IS CONSISTENT

WITH THE STATUTE AS A WHOLE ......... 11

II. LIMITING TOLLING TO TIMES WHEN

STATE PROCEEDINGS ARE PENDING

FURTHERS THE GOALS OF AEDPA, AS

SHOWN BY THE STATUTE ITSELF AS

WELL AS ITS LEGISLATIVE HISTORY ..... 13

IV. THE EXISTENCE OF A WIDE VARIETY

OF COLLATERAL STATE PROCEEDINGS

GIVES MEANING TO CONGRESS’S

PHRASE "STATE POST-CONVICTION OR

OTHER COLLATERAL REVIEW" .......... 17

il

Table of Contents, continued

V. IF THE COURT REACHES THE ISSUE, IT

SHOULD HOLD THAT AEDPA’S STATUTE

OF LIMITATIONS IS NOT SUBJECT TO

EQUITABLE TOLLING ...........---ee0ee- 21

VI. SIMILARLY, IF THE COURT REACHES

THE ISSUE, IT SHOULD HOLD THAT

FEDERAL HABEAS PETITIONS MAY NOT

BE STAYED PENDING EXHAUSTION IN

STATE COURT ........cccccccccccccccccees 25

CE i cvbt eae ee bncecnasebeseetataassneed 27

iil

Table of Authorities

Page

Cases

Averett, petitioner, |

404 Mass. 28, 533 N.E.2d 1023 (1989) .......... 19

Babcock v. Duncan, |

1997 WL 724450 (N.D.Cal. 1997) .............4.. 9

Barrett v. Yearwood,

63 F.Supp.2d 1245 (E.D.Cal. 1999) .............. 9

Brogan v. United States,

S22 UD, Fae Ca es tack eaebvcatsaneasavnses 13

Burnett v. New York Cent. R.R. Co.,

380 U.S. 474 CAGES) occ ccccccccccsevccscnccecs 23

Calderon v. United States District Court,

144 F.3d 618 (9th Cir. 1998) ....... cece eee eeee 26

Calderon v. United States District Court (Beeler),

128 F.3d 1283 (9th Cir. 1997), cert. denied,

522 U.S. 1061 (199G) oc ccccccccsccccsccccccees 24

Calderon v. United States District Court (Kelly),

163 F.3d 530 (9th Cir. 1998), cert. denied,

119 SCC. 1STT GAGS) oscccscvscsccesececovess 24

Carmichael v. White,

163 F.3d 1044 (8th Cir. 1998) .............. 25, 26

Coates v. Byrd,

211 F.3d 1225 (11th Cir. 2000) ................. 8

iV

Table of Authorities, continued

z Page

Cases

Custis v. United States,

eS rer rrr ees 14

Davis v. Cambra,

1998 WL 738003 (N.D.Cal. 1998) ............66- 9

Davis v. Johnson,

158 F.3d 806, (Sth Cir. 1998), cert. denied,

Re ges DPC LEOOED ca cebnsccwesbdccetececens 24

Dickerson v. Latessa,

872 F.2d 1116 (1st Cir. 1969) ..cccccccccccccves 19

Duncan v. Henry,

St SE REEDED Soc ccccdecectccveesececess 15

Ex parte Royall,

Se EE CUED cb cdcccccccnecoeevecesecece 10

Felker v. Turpin,

OE CROP voccbsccusseccvecscesecess 22

Fisher v. Johnson,

Be ae FAW Cen Gls ESF) oc cvcccccceccccsone 22

Table of Authorities, continued

Page

Cases

Giles v. United States,

6 F.Supp.2d 648 (E.D. Mich. 1998), aff'd,

2000 WL 1720730 (Nov. 8, 2000) .............. 22

Grooms v. Johnson,

ee ae Ge Cee Cts BIG ED sc ceccvecesncesveces 8

Hardin v. Straub,

et Bee ee LOD 6 os Was kceb ud oho dnko Rene see 10

Harris v. Hutchinson,

BP Toe FOO CGN CA. BRO) veresccccvocderece 24

Harrison v. Galaza,

1999 WL, SGSP4 (N.D.Cal, 1999) .ccccccccsccccecs 9

Irwin v. Department of Veterans Affairs,

ee ee re 21

Jimenez v. Rice,

222 F.3d 1210 (9th Cir. 2000) ......... 8, 10,12, 15

Jones v. Morton,

Se ae Be CRO Gs SIGE? ce ce vcctnceseeeces 15

Kethley v. Berge,

14 F.Supp.2d 1077 (E.D. Wis. 1998) ............. 9

Lindh v. Murphy,

ee eee er eee re 12

vi

Table of Authorities, continued

Cases

Martin v. Hadix,

OUTER, TABOO ni dc vis vs csdecctccas

McCarthy v. Bronson,

500 U.S. 136 (1991) ..... cc cccccecececes

Miller v. Marr,

141 F.3d 976 (10th Cir.), cert. denied,

CR ois cr cv pu cnavetiavus

Miller v. New Jersey State Dept. of Corrections,

145 F.3d 616 (3d Cir. 1998) .......0eeeees

Moore v. United States,

173 F.3d 1131 (8th Cir. 1999) .........46-

Ott v. Johnson,

192 F.3d 510 (5th Cir. 1999), cert. denied,

120 S.Ct. 1834 (2000) ......- cece eeeeees

Pennsylvania v. Finley,

481 U.S. 551 (1987) ...... cece cece eee cees

Phoenix v. Matesanz,

189 F.3d 23 (1st Cir. 1999) .........02008-

Ratzlaf v. United States,

EE SI isin sc cn sens knccavas

Vii

Table of Authorities, continued

Page

Cases

Rhine v. Boone,

182 F.3d 1153 (10th Cir. 1999), cert. denied,

ep Re Pree ee 8

Rose v. Lundy,

455 U.S. SED CUGER) occ cccccves 3, 4, 5, 14, 15, 25, 26

Rupert v. Johnson,

83 F.Supp.2d 801 (W.D. Texas 1998) ............ 8

Russello v. United States,

GEG UA BO GPSS) 6 6 6a che ccdcccecs (easseseoocns 12

Sandvik v. United States,

ETT F.36 1269 (21th Cir. 1999) .ncccccccccesece 24

Smith v. McGinnis,

208 F.3d 13 (2d Cir. 2000), cert. denied,

bie Fo B® fy POPPeTeTTTT TTT TTT eee 24

Sperling v. White,

30 F.Supp.2d 1246

CEB Gi. SOOO cc cncccnccccececes 7, 8, 13, 15, 22

Sterling v. Scott,

57 F.3d 451 (5th Cir. 1995), cert. denied,

SAS Wdk, FE CASED cca ibneadecsivescosantanse 26

Vill

Table of Authorities, continued

Page

Cases

Stewart, petitoner,

411 Mass. 566, 583 N.E.2d 854 (1992) .......... 19

Taliani v. Chrans,

Be eee Cree Cale EOOOP ccc ccidectecsccess 24

United Savings Ass’n v. Timbers of Inwood Forest

Associates, Ltd.,

Ge Ss ee GD 6 56 8 on0c0nus0006eescscceae 13

United States v. Addonizio,

442 U.S. 178 (1979) . 0... ccc cece cece ecee cee 14

United States v. Beggerly,

524 Sis BO CAPPED ccc cccccccscens 21, 22, 23, 24, 25

United States v. Brockamp,

Dae Gis SOE COED o ccc cceeseccadsius 21, 23, 24, 25

United States v. Cicero,

Be ee Be Cs Gals BONED 66 hak ccccsavseess 24

United States v. Locke,

Pe MEE 64-0 caudbeceuenecuunsseceus 21

United States v. Marcello,

212 F.3d 1005 (7th Cir. 2000), cert. denied,

Se ee ED 08.64 008 GN Geass ekaewcveces 24

ix

Table of Authorities, continued

Page

Cases

United States v. Reccko,

Re ate AP CREE Gs RUPEE 6 once vanerseceserces 23

United States v. Wells,

Dae Rie EE CAO ED inc cciecesdéoneseteses eens 24

Victor v. Hopkins,

90 F.3d 276 (8th Cir. 1996), cert. denied,

SEP Ges REDS CROP ED 6 0's 0d ewenens WaEe cc ccwwned 26

Vincze v. Hickman,

1999 WL 68330 (E.D.Cal. 1999) ................ 9

Walker v. Artuz, -

BUS F396 S57 (46 Cop. BOGE) on cccccccsccecces 5, 17

Williams v. Taylor,

ERO CAE BGS GRE hc cecscasecnssenns 10, 18, 22

Wilwording v. Swenson,

ge | ee ee ee ee err er 10

Statutes, Regulations, and Court Rules

Antiterrorism and Effective Death Penalty Act

CARITAS GE SIGS ck cwe en cueees cacvescicacteseans passim

ROS Be UL, BTR so oc vdha tonic stadsbeciceeesaes 16

es

&

PA

4

*

“

|

Table of Authorities, continued

Page

Statutes, Regulations, and Court Rules

Title 28 U.S.C. § 2244(d) ...... cece cece eeeees passim

Tithe 26 U.S.C. § 2254 0. sccccccccscccccscvcvece 11, 16

Title 28 U.S.C. § Z2SS ....cccccsccvcccccccsccccvcees 22

Title 28 U.S.C. § 2261(e) .....cccccccccccccccccccees 12

Title 28 U.S.C. § 2264(a)(3) .... 2. cece cece eee eee eeees 12

Re’ 5) rrrerrrrrrrri rere T err rere 24

Rule 4, Rules Governing Section 2254 Cases in the

United States District Courts (2000) ............ 16

Mass. Gen. Laws ch. 278, § 33E ........cceeeeeeeeees 19

Other Authorities

H.R. Conf. Rep. No. 104-518, reprinted in

1996 U.S.C.C.A.N. 944 ....ccccccccccccecs 13,22

141 Cong. Rec. §7803-01 (June 7, 1995) ........-...48- 17

141 Cong. Rec. §7825-26 (June 7, 1995) ...........+-- 17

Xl

Table of Authorities, continued

Page

Other Authorities

Fallon, Meltzer, Shapiro, Hart & Wechsler,

The Federal Courts and the Federal

POG, COU. TSFF) oo ccccccticncccscuseccees 9

James S. Liebman & Randy Hertz, Federal Habeas

Corpus Practice and Procedure

COR GS SI, BOE on 0h ccb ne 6c cack ca civecnsns 9

Lawrence Yackle, A Primer on the New Habeas

Corpus Statute, 44 Buffalo L. Rev 381 (1996) ..... 9

Lawrence Yackle, Post-Conviction Remedies

Bae Cawee Ge OE, BOOee 8os dew cscs cuccencwcns 18

Xl

No. 00-121

IN THE

Supreme Court of the United States

GEORGE DUNCAN, Petitioner,

v.

SHERMAN WALKER, Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

BRIEF AMICUS CURIAE OF MASSACHUSETTS,

DELAWARE, HAWAII, [OWA, MARYLAND, MISSISSIPPI,

MISSOURI, NEBRASKA, NEVADA, OHIO,

PENNSYLVANIA, SOUTH DAKOTA, TENNESSEE, UTAH,

VIRGINIA, WASHINGTON, AND WEST VIRGINIA IN

SUPPORT OF THE PETITIONER

Statement of Amici Interest

The Commonwealth of Massachusetts, together with the

other amici states, join the State of New York in urging the Court

to reverse the judgment of the Court of Appeals for the Second

Circuit and hold that, under 28 U.S.C. § 2244(d)(2), the statute

of limitations for federal habeas corpus petitions filed by state

prisoners is not tolled during the pendency of a prior federal

habeas corpus petition.

The central reason that the Court should reject the lower

court’s interpretation of the toHing provision of the Antiterrorism

and Effective Death Penalty Act of 1996 (AEDPA), which

provides that the one-year statute of limitations is suspended

during the pendency of a "properly-filed application for State

post-conviction or other collateral review," is simply that the

words of the statute do not provide for tolling during prior federal

habeas review. It stretches both grammar and logic to pluck the

words "other collateral" from the phrase "State post-conviction or

other collateral review," declare that they are not modified by the

word "State," and conclude that Congress therefore must have

intended silently to refer to federal collateral review. The words

of the statute demonstrate that Congress provided for tolling only

during the pendency of state review proceedings, which, unlike

prior federal proceedings, advance the case towards finality by

exhausting state court remedies and serve the further purpose of

comity by affording state courts the first opportunity to consider

prisoners’ federal claims. :

The amici states have an interest in an interpretation of the

tolling provision that does not promote the filing of unexhausted

federal habeas corpus petitions. The statutory scheme under

AEDPA encourages prisoners promptly to begin the exhaustion

process in state court, and it provides an incentive for speedy state

court filing by allowing tolling of the statute of limitations during

the time that a properly-filed state proceeding is pending. To read

into the statute a similar provision for tolling during prior federal

habeas corpus petitions would provide an incentive for prisoners

to do exactly the opposite: file first in federal court, regardless of

whether their claims have been exhausted, and delay state court

filing until receiving a ruling from the federal court. The

incentive for prompt state court filing would be removed, and the

prisoner could simply mark time in federal court, knowing that,

if the court found his claims unexhausted, he still would be able

to commence a state court exhaustion process. Such a scheme

promotes unnecessary federal habeas corpus litigation, requires

expenditure of state resources to defend duplicative habeas

petitions, prolongs the exhaustion process, and conflicts with the

ed

Court’s teaching in Rose v. Lundy, 455 U.S. 509, 520 (1982),

requiring prisoners to evaluate their claims for exhaustion before

bringing them to federal court.

Summary of Argument

I. The plain words of 28 U.S.C. § 2244(d)(2), as amended

by AEDPA, the tolling provision of AEDPA’s statute of

limitations, refer only to applications for “State” collateral review.

Not only does the phrase "application for State post-conviction or

other collateral review" contain no reference to federal habeas

corpus petitions, but the positioning of the words "post-conviction

or other collateral" between the adjective "State" and the noun it

modifies, "review," makes this the only natural reading of the

phrase. The reasoning of the court of appeals, that a silent

reference to "federal" collateral review must be read into the

section because the phrase "other collateral" review otherwise

would be meaningless, is based on the incorrect assumption that

Congress could not have used broad language to ensure that the

great variety of state collateral proceedings were included in the

tolling provision. Moreover, the lower court’s reading is

inconsistent with the entire section, adopting a one-year statute of

limitations subject only to limited tolling during proceedings that

promote exhaustion and advance the case towards finality. By

broadening the circumstances in which tolling is permitted, the

lower court’s interpretation would foster delay and piecemeal

litigation, a result contrary to the statutory scheme.

II. Reading § 2244(d)(2) in accordance with its plain

meaning to apply only to state proceedings is also consistent with

the statute as a whole. The amendments enacted by AEDPA,

including the one-year statute of limitations, restrictions on

second or successive petitions, and a standard of review that gives

greater deference to state-court decisions, reflect the goals of

streamlining and accelerating the habeas review process, while

recognizing interests of comity. To toll the statute of limitations

during state review proceedings furthers these goals, as it

encourages petitioners to begin the state court exhaustion process

promptly and hastens the final resolution of the case. On the

other hand, to read into the statute a tolling provision for federal

review proceedings would have the opposite result: it would

encourage petitioners to delay commencement of the state

exhaustion process and instead to file unexhausted petitions in

federal court. In addition, Congress explicitly used the word

"Federal" on several occasions in AEDPA to refer to federal

proceedings, indicating that it is unlikely Congress would have

intended a silent reference to federal habeas corpus in this

instance.

III. The purposes of AEDPA, as shown by the statute

itself as well as by its legislative history, strongly support reliance

on the plain meaning of § 2244(d)(2). There can be no question

that a central goal of the statute, as amended by AEDPA, is to

expedite federal habeas corpus review. The delay and piecemeal

litigation that would be encouraged by allowing tolling for prior

federal habeas corpus petitions is entirely contrary to this

statutory purpose. Moreover, to encourage filing of unexhausted

claims in federal court contravenes the holding of Rose v. Lundy,

455 U.S. 509, 520 (1982), which advises petitioners not to bring

claims to federal court until they are sure they have complied with

the exhaustion requirement.

IV. The existence of a wide variety of state review

proceedings gives meaning to Congress’s phrase, "State post-

conviction or other collateral review." Thus, the lower court’s

assumption that Congress could not have intended these words to

refer only to State proceedings is erroneous. The terminology

given to state post-conviction proceedings varies from state to

state, and some are expressly labeled "post-conviction review"

petitions. The older forms of review, including habeas corpus

and coram nobis, may not be considered to fall into this category

based on their nomenclature. And certainly, collateral

proceedings reviewing non-criminal forms of detention, such as

civil commitments, could not be termed "post-conviction."

V. If the Court reaches the issue, it should hold that

equitable tolling does not apply to AEDPA’s statute of

limitations. Because the statute provides explicitly for tolling

during State review proceedings, and where it also includes

equitable considerations in defining the events that trigger the

commencement of the statute of limitations, it is plain that

Congress did not intend to permit additional factors, not among

those specified in the statute, to toll the limitations period.

VI. If the Court reaches the issue, it also should hold that

a district court may not stay a federal habeas corpus petition while

the petitioner returns to court to exhaust his claims. Such a

procedure is contrary to the holding of Rose v. Lundy, 455 U.S.

509, 522 (1982) that unexhausted petitions must be dismissed and

that mixed petitions may be dismissed or amended to exclude the

unexhausted claims. To allow federal petitions to be stayed or

held in abeyance during the exhaustion process would encourage

piecemeal litigation and would contravene AEDPA’s statute of

limitations.

Argument

In its decision below, the court of appeals interpreted the

tolling provision of the statute of limitations in the federal habeas

corpus statute, 28 U.S.C. § 2244(d)(2), which tolls the one-year

statute of limitations imposed by the Antiterrorism and Effective

Death Penalty Act of 1996 (AEDPA) during the pendency of an

“application for State post-conviction or other collateral review,”

as applying not only to state post-conviction proceedings, but also

to prior federal habeas corpus proceedings. Walker v. Artuz, 208

F.3d 357, 359-61 (2d Cir. 2000). The court concluded that the

words “other collateral” would be meaningless unless they were

interpreted to mean “federal collateral.” Jd. at 360.

The lower court’s decision contravenes the plain words of

§2244(d)(2), it is inconsistent with the statute as a whole and with

its goals, and it ignores the wide variety of state collateral

proceedings that Congress ensured would be encompassed within

the tolling provision by its choice of broad, alternative

descriptions.

I. BY ITS PLAIN TERMS, § 2244(d)(2) REFERS

ONLY TO APPLICATIONS FOR STATE

REVIEW.

There can be no question that the plain words of 28 U.S.C.

§ 2244(d)(2), as amended by AEDPA, refer only to applications

for “State” collateral review. AEDPA’s statute of limitations

provides:

(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;

oes

(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.

28 U.S.C. § 2244(d) (emphasis added).

The plain language of 28 U.S.C. §2244(d)(2) cannot be

read to support the court of appeals’-decision. See United States

v. Wells, 519 U.S. 482, 490 (1997) (natural reading is the first

criterion in the interpretive hierarchy). “[S]tatutory language

must always be read in its proper context. In ascertaining the

plain meaning of a statute, the court must look to the particular

statutory language at issue, as well as the language and design of

the statute as a whole.” McCarthy v. Bronson, 500 U.S. 136, 139

(1991) (citations omitted), quoted in Sperling v. White, 30

F.Supp.2d 1246, 1250 (C.D.Cal. 1998).

Here, there is simply nothing in the plain words of the

phrase, “application for State post-conviction or other collateral

review,” that naturally may be read to refer to federal collateral

relief. The syllogism that the court of appeals used to reach this

conclusion is strained at best: because there is no meaningful

difference between state “post-conviction” and state “collateral”

remedies, the lower court posited, it must be assumed that

Congress intended the phrase “other collateral” to be a silent

reference to “federal collateral” review. Walker, 208 F.3d at 359-

61. Not only was the lower court’s premise erroneous, as

described below,’ but the court’s analysis ignored the plain words

of the phrase and their natural import. Where the words “post-

conviction or other collateral” appear together, sandwiched

between the adjective “State” and the noun that the whole phrase

modifies, “review,” the plain and natural reading of this phrase is

that it refers to state review only.

Such a conclusion is consistent with the interpretation

given the statute by the United States Courts of Appeals for the

Third, Fifth and Ninth Circuits, each of which has held that the

limitations period of 28 U.S.C. §2244(d)(1) is not tolled during

the pendency ofa petitioner’s prior federal habeas corpus petition.

See Jones v. Morton, 195 F.3d 153, 158-159 (3d Cir. 1999);

Grooms v. Johnson, 208 F.3d 488, 489 (Sth Cir. 1999); Jiminez

v. Rice, 222 F.3d 1210, 1213-14 (9th Cir. 2000). This

interpretation is also consistent with opinions of the United States

Courts of Appeals for the Fifth, Tenth and Eleventh Circuits,

which have concluded that petitions for certiorari to the Supreme

Court do not constitute “other collateral review,” as they are not

petitions for “State” review, see Ott v. Johnson, 192 F.3d 510,

513 (Sth Cir. 1999), cert. denied, 120 S.Ct. 1834 (2000); Rhine v.

Boone, 182 F.3d 1153, 1156 (10th Cir. 1999), cert. denied, 120

S.Ct. 808 (2000), Coates v. Byrd, 211 F.3d 1225, 1227 (11th Cir.

2000); and with the opinions of most district courts that have

addressed the issue.” The authors of these decisions all conclude

—

'See argument IV below.

See, e.g., Rupert v. Johnson, 83 F.Supp.2d 801, 804 (W.D.Tex 1998)

(for purposes of tolling under §2244(d)(2), federal habeas petition does not

constitute “other collateral relief’); Sperling v. White, 30 F.Supp.2d 1246,

8

that the plain and natural reading of § 2244(d)(2) is that the word

“State” modifies the entire phrase following it, including both

“post-conviction” and “other collateral” review.’

A natural reading of the phrase need not ignore its logical

import in the context of the entire section, which enacted a one-

year time limitation, subject only to limited exceptions and

tolling. No one disputes that Congress intended to -- and did --

1253 (C.D.Cal. 1998) (§2244(d)(2) “plainly does not toll limitations during the

pendency of federal habeas petitions”); Kethley v. Berge, 14 F.Supp.2d 1077,

1079 (E.D.Wis. 1998) (no tolling under §2244(d)(2) for time that unexhausted

claims in federal habeas petition were pending in District Court); Harrison v.

Galaza, 1999 WL 58594, at *2 (N.D.Cal. 1999) (“t]he running of the

limitation period is not tolled, as petitioner contends, for the time period,

during which a properly filed application for post-conviction or other collateral

review is pending in federal court”); Vincze v. Hickman, 1999 WL 68330, at

*1 (E.D.Cal. 1999) (“the court concludes that the statutory tolling provision

set forth in Section 2244(d)(2) does not toll the period during the pendency of

petitioner's first federal habeas petition”); Davis v. Cambra, 1998 WL 738003,

at *2 (N.D. Cal. 1998) (“[t)he time during which a properly filed application

for post-conviction or other collateral review is pending in federal court does

not toll the running of the one-year statute of limitations”); Babcock v.

Duncan, 1997 WL 724450, at *2 (N.D.Cal. 1997) (“{n]o court has found that

the running of the limitations period also is tolled . . . for the time period

during which a properly filed [habeas corpus petition] is pending in federal

court”). But see Barrett v. Yearwood, 63 F.Supp.2d 1245, 1250

(E.D.Cal.1999) (the “plain meaning” of §2244(d)(2) “is that the statute of

limitations is tolled during the pendency of any properly filed federal habeas

corpus petition”).

*That this is the natural reading of § 2244(d)(2) is further confirmed

by the agreement of the authors of a treatise "written from the procedural

perspective of prisoners," that "federal habeas corpus proceedings do not

themselves toll AEDPA’s statute of limitations." See 1 James S. Liebman &

Randy Hertz, Federal Habeas Corpus Practice and Procedure § 1.1 at 2;

§ 5.1b at 229-30 n.57 (3d ed. 1998 & Supp. 1999) (emphasis omitted); accord

Fallon, Meltzer, Shapiro, Hart & Wechsler, The Federal Courts and the

Federal System (Supp. 1999) 162; Lawrence Yackle, A Primer on the New

Habeas Corpus Statute, 44 Buffalo L. Rev 381, 387 (1996).

- 9

toll the statute of limitations during the pendency of a properly-

filed state application for collateral review. It would be surprising

if even the respondent did not agree that this Congressional intent

extended to the full panoply of state court vehicles for attacking

the judgment of conviction or other confinement, whatever the

local terminology for such relief. Stopping the clock for a broad

range of state court remedies makes sense in light of the

longstanding interests, recognized by habeas corpus jurisprudence

and legislation, in comity and exhaustion of state court remedies.

See, e.g., Ex parte Royall, 117 U.S. 241 (1886); Wilwording v.

Swenson, 404 U.S. 249, 250 (1971). Thus, the natural import of

the words themselves, referring to any and all such state court

remedies, is also logical in the context of the entirety of

§ 2244(d), imposing a one-year statute of limitations, subject to

only limited exceptions and tolling. On the other hand, to read

the words “other collateral” as a silent reference to “federal

collateral” review is to broaden the circumstances in which tolling

is permitted, and makes no sense in the context of the section

itself, since “[a]pplying §2244(d)(2) to a federal petition does

nothing to further Congress’s intent to promote exhaustion of

state relief.” Jiminez v. Rice, 222 F.3d at 1214. Moreover, such

a re-writing of the statute would foster delays in federal habeas

corpus cases, a result plainly contrary to the overall statutory

scheme and the purpose of the statute of limitations to accelerate

the habeas corpus process. See Hardin v. Straub, 490 U.S. 536,

539 (1989).

Finally, a “cardinal principle of statutory construction

... [iS] to give effect, if possible, to every clause and word of the

statute.” Williams v. Taylor, 120 S.Ct. 1495, 1519 (2000).

“Judges should hesitate . . . to treat statutory terms [as surplusage]

in any setting.” Ratzlaf v. United States, 510 U.S. 135, 140

(1994), quoted in Jiminez v. Rice, 222 F.3d at 1212-14. The

lower court’s interpretation of § 2244(d)(2) would do just that:

it would render the word “State” superfluous. And if, contrary

10

to the amici states’ argument, the word “collateral” were viewed

as wholly synonymous with, and merely repetitive of, the phrase

“post-conviction,” the words “other collateral” would also be

superfluous. The lower court’s analysis is simply contrary to the

plain language of the statute.

Il. CONSTRUING § 2244(d)(2) AS LIMITED TO

STATE PROCEEDINGS IS CONSISTENT

WITH THE STATUTE AS A WHOLE.

While it is not necessary to look beyond the plain words

of 28 U.S.C. § 2244(d)(2) to glean its meaning, reading the

section to apply only to state proceedings is also consistent with

the overall statutory scheme enacted under AEDPA.

The statute itself imposes several means to streamline and

speed up federal habeas corpus review, including not only the

statute of limitations contained in § 2244(d), but also limitations

on second or successive petitions and a standard of review

designed to give greater deference to state courts’ legal

conclusions and factual findings. 28 U.S.C. §§ 2244(b), 2254(d)-

(e). Tolling the statute of limitations during exhaustion

proceedings in state court, which serve the interests of comity as

well as causing the case to progress towards finality, is wholly

consistent with this statutory scheme, as it encourages prisoners

promptly to begin the exhaustion process and puts the case "on

track" to a final conclusion. To read into the statute a tolling

provision for prior federal habeas corpus petitions, however,

makes no sense at all in light of the statutory scheme. Such a

provision would encourage prisoners to delay commencement of

the state exhaustion process by filing unexhausted claims in

federal court and encourage -- rather than discourage -- multiple,

piecemeal collateral attacks on state convicitons and sentences via

federal habeas corpus actions. Requiring the states to defend

duplicative and unnecessary habeas petitions, where in general

11

the only result is to send the prisoner to state court to exhaust his

claims, contravenes the statutory scheme to encourage prompt

state filings and advance the case towards finality.

Reference to other sections of AEDPA, moreover, makes

it particularly evident that Congress’s omission of any reference

to "federal" proceedings in § 2244(d)(2) was intentional. On

numerous occasions, Congress made explicit reference to

"federal" proceedings. See 28 U.S.C. § 2254(I), referring to

ineffective assistance of counsel “during Federal or State

collateral post-conviction proceedings”; § 2261(e), referring to

ineffective assistance of counsel in capital cases “during State or

Federal post-conviction proceedings” and to appointment of

counsel “at any phase of State or Federal post-conviction

proceedings”; § 2264(a)(3), referring to facts that could not have

been discovered “in time to present the claim for State or Federal

post-conviction review.” That, in the tolling provision of

§ 2244(d)(2), Congress included a reference to “State” review,

but made no reference at all to “federal” proceedings, indicates

that it did not intend silently to include tolling for federal

collateral proceedings. |

This conclusion is supported by the canon of statutory

construction, expressio unius est exclusio alterius. That is,

“(w]here Congress includes particular language in one section of

a statute but omits it in another section of the same Act, it is

generally presumed that Congress acts intentionally and purposely

in the disparate inclusion or exclusion.” Russello v. United

States, 464 U.S. 16, 23 (1983); see Jiminez v. Rice, 222 F.3d at

1213-14; cf. Lindh v. Murphy, 521 U.S. 320, 330 (1997) (because

Congress specifically provided that the AEDPA applies to

pending capital cases, but failed to address the AEDPA’s

application to pending non-capital cases, the negative implication

of Congress’s failure was that Congress did not intend that the

AEDPA apply to pending non-capital cases). Thus, even if the

12

word “State” in this context were deemed ambiguous, the

inclusion of the word “Federal” elsewhere to refer to federal

proceedings clarifies that the use of “State” alone indeed was

intended to denote only state proceedings. See generally United

Savings Ass'n v. Timbers of Inwood Forest Associates, Ltd., 484

U.S. 365, 371 (1988). It may be inferred from the many explicit

references to “Federal” proceedings in other sections of AEDPA

that Congress would “have used language more obviously

targeted” to include federal proceedings had it so intended. See

Martin v. Hadix, 527 U.S. 343, 354 (1999). —

Similarly, “[u]nder the principle ejusdem generis, when a

general term follows a specific one, the general term should be

understood as a reference to subjects akin to the one with specific

enumeration.” Brogan v. United States, 522 U.S. 398, 403 n.2

(1998) (citations omitted), quoted in Sperling v. White, 30

F.Supp.2d at 1253 & n.9. Applying this principle, the phrase, “a

properly filed application for State post-conviction or other

collateral review,” limits the definition of the general words

“other collateral review” by the more specific words “State

post-conviction” review. Thus, the words “other collateral

review,” read in the context of the sentence as a whole, naturally

denote other state collateral review proceedings and should not be

read to refer to an entirely new class of non-state or federal

proceedings.

Ill. LIMITING TOLLING TO TIMES WHEN

STATE PROCEEDINGS ARE PENDING

FURTHERS THE GOALS OF AEDPA, AS

SHOWN BY THE STATUTE ITSELF AS

WELL AS ITS LEGISLATIVE HISTORY.

Both the provisions of AEDPA itself and its legislative

history reveal a purpose to expedite federal habeas corpus review.

See H.R. Conf. Rep. No. 104-518, at 11 (1996), reprinted in 1996

‘ 13

U.S.C.C.A.N. 944 (AEDPA amendments intended to “curb the

abuse of the statutory writ of habeas corpus, and to address the

acute problems of unnecessary delay and abuse in capital cases,”

as well as to require exhaustion of state remedies and deference

to state court decisions that meet the new standard); H.Rep. No.

104-23 at 29 (one purpose of AEDPA’s habeas corpus reform was

to “curb the lengthy delays in filing that now often occur in

federal habeas corpus litigation). Moreover, the need to bring

cases to finality without unnecessary delay is not limited to

capital cases. Victims of crime and their families, witnesses, and

the community have a need for finality and closure in criminal

cases in general. Cf Custis v. United States, 511 U.S. 485, 497

(1994) (““Inroads on the concept of finality tend to undermine

confidence in the integrity of our procedures’ and inevitably delay

and impair the orderly administration of justice.”) (quoting United

States v. Addonizio, 442 U.S. 178, 184 n.11 (1979)).

To adopt the plain meaning of § 2244(d)(2) is wholly

consistent with AEDPA’s purpose promptly to bring cases to

finality. To limit tolling to state collateral proceedings serves the

purposes of finality by stopping the habeas clock only for review

proceedings that advance the case towards a final conclusion.

Nothing in AEDPA suggests that Congress intended to delay the

final resolution of a case by encouraging petitioners to go

automatically or repeatedly to federal court, without first

exhausting state court remedies. Yet this would be the result if

tolling were permitted for prior federal habeas corpus petitions.

Contrary to the holding of Rose v. Lundy, 455 U.S. 509, 520

(1982), in which the Court directed petitioners to “be sure [they]

have taken each [claim] to state court” before bringing it to

federal court, id. at 520, providing for tolling during prior federal

habeas petitions would encourage petitioners to make federal

court their first stop. There would be no need for a petitioner to

evaluate his or her claims for exhaustion prior to filing in federal

court, since the clock would stop as soon as the petition was filed,

14

apes ee Nema

ant

exhausted or not. From the petitioner’s point of view, it would be

foolish not to bring unexhausted claims to federal court first, in

the hope that the defect would go unnoticed and with the

assurance that, in any event, nothing would be lost. Moreover, if

the petitioner wished to buy additional time prior to filing in state

court, he could simply file a series of unexhausted petitions in

federal court, tolling the statute indefinitely. See Jones v. Morton,

195 F.3d at 159; Sperling v. White, 30 F.Supp.2d at 1251.

Such a scenario is wholly contrary to the interests of

finality and expedition of federal habeas corpus review.

Litigation of unexhausted petitions adds another step in the

process of collateral review that delays, rather than expedites, the

progress of the case towards finality. Defense of unexhausted

petitions also requires the expenditure of state resources. In states

such as Massachusetts, where the local district attorneys handle

all state court appeals and post-conviction motions filed in state

court, the attorney general must request the file from the local

district attorney, often requiring retrieval from a storage facility,

and then review it for the first time. When the petitioner has

failed to present his claims to the state courts, not only have the

State courts been deprived of the first opportunity to rule on the

issue, but the local prosecutor has not reviewed the claim, and

coordination of effort is required between the state and local

prosecutors in order to ensure that all relevant facts and

considerations are marshaled. It is far preferable, as Congress

evidently recognized, to create a strong incentive for petitioners

to go immediately to state court to exhaust their claims, where the

local authorities and courts most familiar with the matter may

consider it in the first instance. See Duncan v. Henry, 513 U.S.

364, 365-366 (1995); Rose v. Lundy, 455 U.S. 509, 518 (1982);

Jiminez v. Rice, 222 F.3d at 1214. When this has occurred, the

process of federal habeas review of the state court decision,

within the one-year limitations period, is not only more efficient,

but it is informed by the earlier state court review process. Most

15

importantly, where petitioners go directly to state court, the time

during which the unexhausted petition would otherwise have been

pending in federal court -- a proceeding that does nothing to

promote finality and simply delays the state exhaustion process --

is not lost.

While it is true that AEDPA permits a federal district

court to deny the petition on the merits, rather than dismiss for

failure to exhaust, 28 U.S.C. § 2254(b)(2), such a process should

not be frequently used because it deprives state courts of the first

opportunity to pass on the claim and because commencing the

review process in federal court bypasses the informed judgment

of the state courts most familiar with the case. In light of the

principles of comity, it appears that this section was intended to

conform § 2254 to existing rules providing for summary denial of

those cases in which the claim is plainly meritless on its face. See

28 U.S.C. § 2243; Rule 4, Rules Governing Section 2254 Cases

in the United States District Courts (2000). The existence of this

option in no way suggests that filing of unexhausted claims

speeds up the federal review process or that Congress intended to

encourage all petitioners to commence their exhaustion process

in federal, rather than state, court.

In addition to the House Report setting forth the general

goals of AEDPA, there is some evidence from remarks and

testimony during Congress’s consideration of AEDPA that the

tolling provision was intended to apply to state proceedings only.

One such reference is particularly clear: in testimony before the

House of Representatives Judiciary Committee, Daniel E.

Lungren, then-Attorney General of California, proposed the very

scheme that Congress adopted: “one suggested modification to

improve [the statute of limitations] would be to begin the clock

from the finality of judgment on direct appeal with perhaps a

tolling period for state collateral review.” Revised Crime Bill:

Before the House Committee on the Judiciary Subcommittee on

16

7 cere DLR

Crime, 104th Cong., (January 19, 1995) (emphasis added). That

Congress was aware of the varied nature of state collateral

proceedings is also evident from remarks of Sen. Spector during

the Senate debate: “(h]Jabeas corpus proceedings arising from

Federal convictions are handled slightly differently than those

arising out of State convictions, because in State proceedings,

after the highest State court affirms the death penalty on direct

review, there may then be additional State-court review called

collateral review on State habeas corpus before review on

Federal habeas corpus.” 141 Cong. Rec. § 7803-01 (June 7,

1995) (emphasis added); see also 141 Cong. Rec. § 7803-01, §

7825-26 (Sen. Orrin Hatch, June 7, 1995) (appearing to describe

a State petition for clemency as a form of collateral review, but

distinct from judicial post-conviction review). In contrast to the

references to state collateral proceedings, amici states are unaware

of any indication in the legislative history that suggests Congress

was considering tolling the limitations period during pare

collateral proceedings.

IV. THE EXISTENCE OF A WIDE VARIETY

OF COLLATERAL STATE PROCEEDINGS

GIVES MEANING TO CONGRESS’S

PHRASE "STATE POST-CONVICTION OR

OTHER COLLATERAL REVIEW."

Perhaps the greatest shortcoming of the court of appeals’

reasoning was its assumption that there can be no meaningful

distinction between the phrases “post-conviction . . . review” and

“collateral review.” See Walker v. Artuz, 208 F.3d at 360

("Because ‘post-conviction review’ is a broad term that seems

to encompass all review a prisoner seeks after conviction, we

can see no reason why Congress should have believed that there

were ‘other’ forms of ‘collateral review’ that did not come

within the scope of ‘post-conviction review.’"). It was this

assumption that caused the lower court to reject the most natural

17

and plain reading of § 2244(d)(2) and, in effect, re-write it to

comprise "federal" collateral review. The existence of a wide

variety of collateral state proceedings, not all of which may be

considered or uniformly described as "post-conviction,"

lrowever, makes it entirely reasonable for Congress to have used

this broad terminology to ensure that all state collateral

remedies, whatever their local terminology, and whether or not

they followed a "conviction," were encompassed within

AEDPA’s tolling provision.

The phrase “post-conviction . . . review” has no

application to state review of non-criminal forms of custody, such

as civil commitments, and in some states it is a statutory term

that, without the clarifying phrase “or other collateral review,”

could have led to confusion about Congress’s intention to include

all collateral remedies, regardless of their nomenclature. On the

other hand, referring first to “post-conviction” remedies made it

clear that the commonly-used statutory forms of relief designated

“post-conviction” were included in the tolling provision, as well

as the collateral remedies that employed older terminology, such

as habeas corpus. See Lawrence Yackle, Post-Conviction

Remedies §13 (1981 & Supp. 2000) (describing remedies

expressly termed “post-conviction” and others employing

different terminology such as habeas corpus); Williams v. Taylor,

120 S.Ct. at 1501 (state habeas corpus referred to as “state

collateral relief); Pennsylvania v. Finley, 481 U.S. 551, 556, 557,

559 (1987) (statutory remedy under Pennsylvania Post Conviction

Hearing Act referred to as “post conviction review”).

Congress’s choice of the broad phrase “other collateral

review” obviated any need to catalog the numerous and varied

state court remedies. For example, in Massachusetts a prisoner

may bring a state civil habeas corpus petition -- a collateral

procedure as mentioned by Senator Specter -- to obtain his release

from “a lawfully imposed sentence [that] has expired,” or when

18

NAP Bie AO

his claim is based on “grounds distinct from the issues at the

indictment, trial, conviction, or sentencing stage.” Stewart,

petitioner, 411 Mass. 566, 568, 583 N.E.2d 854, 856 (1992)

(quoting Averett, petitioner, 404 Mass. 28, 30-31, 533 N.E.2d

1023, 1024 (1989)). A properly filed state habeas petition would

constitute “other collateral review.” Still another Massachusetts

example of “other collateral review” would be the “gatekeeper”

procedure under Mass. Gen. Laws ch. 278, § 33E, utilized to seek

an appeal from the denial of a motion for new trial in a first

degree murder case. See Phoenix v. Matesanz, 189 F.3d 23, 26

(1st Cir. 1999); Dickerson v. Latessa, 872 F.2d 1116, 1117-1118

(ist Cir. 1989). In both instances, the means to further state

review is actually filed as a separate action collateral to the

underlying criminal case and separate from the “State post-

conviction” remedy of a motion for new trial.

The lower court’s reasoning also fails to recognize the

historical context applicable to collateral attacks on state

convictions and sentences in state courts. In 1955 a Uniform Act

dealing with state court collateral attacks by state prisoners

against their sentences and convictions was endorsed by the

National Conference of Commissioners on Uniform Laws in that

organization's ongoing effort to standardize state practice among

the States. A limited number of states adopted this Act, but in

1966 the Uniform Act was significantly revised to take into

account a broad range of pronouncements of the Supreme Court.

Again, a number of states adopted the new act. In Case y

Nebraska, 381 U.S. 336, 337 (1965) (Clark, J., concurring) and

id. at 340 (Brennan, J., concurring), two justices expressed their

opinions that due process required a post-conviction remedy.

This in turn led many states to adopt the Uniform Postconviction

Procedure Act. See generally Donald E. Wilkes, State Post-

Conviction Remedies and Relief 67-117 (1 996).

19

While the enactment of the Uniform Postconviction

Procedure Act by various states was intended to regularize

collateral proceedings attacking a conviction or sentence, and thus

provide a safe harbor from federal habeas attack on the procedural

mechanism employed by any given state, the Act is clear that it

was in no way intended to usurp the primary role to be accorded

the trial and direct appeal process. See, e.g., lowa Code §§ 822.2

and 822.8. Prior to enactment of this new statute-based form of

collateral action known as "postconviction relief," there simply

was no comprehensive system in many states for a defendant to

collaterally attack a criminal conviction by claiming that a

conviction was obtained or a sentence was imposed in violation

of constitutional rights. See, e.g., State v. Mulqueen, 188 N.W.2d

360, 362 (lowa 1971) ("prior to enactment of [Chapter 822],

postconviction relief in Iowa was confined to a judicially

expanded concept of habeas corpus").

A post-conviction relief action, or "PCR" as it is

commonly known in many states, is essentially a special name for

a hybridized form of statute-based collateral attack on a

conviction or sentence filed by a state prisoner in a state trial

court after a direct appeal. A statute-based PCR incorporates key

elements of two common law perogative writs -- habeas corpus

(you have the body) actions and coram nobis (before us)

proceedings -- in an attempt to codify collateral attacks on state

court convictions and sentences. In a traditional habeas corpus

action, one court was asked to overturn the conduct or jurisdiction

of the convicting court. Coram nobis, by contrast, was more akin

to a motion to reconsider, with the original trial court re-

examining its conduct or the facts.

Because not all states have enacted some variation of the

Uniform Postconviction Procedure Act, it makes perfect sense

that Congress, in recognition of the wide variance in collateral

actions made available to habeas petitioners among the various

20

states, would be careful to acknowledge the diversity inherent in

our federal system.

V. IF THE COURT REACHES THE ISSUE, IT

SHOULD HOLD THAT AEDPA’S STATUTE

OF LIMITATIONS IS NOT SUBJECT TO

EQUITABLE TOLLING.

Where Congress expressly provided in AEDPA for tolling

of the statute of limitations under specified circumstances, and

where it included further equitable provisions delaying the

commencement of the limitations period, its inclusion of these

express provisions make it plain that Congress did not intend

equitable tolling to apply to AEDPA’s statute of limitations.

As this Court has recently stated, “[e]quitable tolling is

not permissible where it is inconsistent with the text of the

relevant statute.” United States v. Beggerly, 524 U.S. 38, 48

(1998). Although Congress is presumed to be aware of the

general application of equitable tolling principles to statutory

filing deadlines, id. at 679; United States v. Locke, 471 U.S. 84,

94 n.10 (1985)), and for this reason there is “a ‘rebuttable

presumption’ that equitable tolling applies to a given statute,” id.

at 679 (quoting /rwin v. Dep't of Veterans Affairs, 498 U.S. 89,

95 (1990)), that presumption is overcome where there is “good

reason to believe that Congress did not want the equitable tolling

doctrine to apply.” Jd. at 679 (quoting United States v. .

Brockamp, 519 U.S. 347, 350 (1997) (emphasis in original)).

This is the case here.

In enacting this new statute of limitations under AEDPA,

Congress explicitly delineated both the events that trigger the

running of the statute, 28 U.S.C. § 2244(d)(1), and the

circumstances under which the Statute may be tolled, 28 U.S.C.

§ 2244(d)(2). Moreover, both the statute itself and its legislative

21

history reveal that a central purpose of the AEDPA amendments

was to encourage the timely disposition of Federal habeas corpus

petitions. See Fisher v. Johnson, 174 F.3d 710, 713 & n.10 (Sth

Cir. 1999) (statute of limitations reflects legislative purpose to

curb abuse of the writ and “speed up the habeas process”);

Sperling v. White, 30 F.Supp.2d 1246, 1251, 1253 (C.D.Cal.

1998) (noting remarks by sponsor Sen. Orrin Hatch to the effect

that “Act’s purpose was to set strict time limits in habeas cases,

reduce delay, and ensure finality”); cf Felker v. Turpin, 518 U.S.

651, 664 (1996) (restrictions on successive petitions restrict abuse

of writ); Williams v. Taylor, 120 S.Ct. 1479, 1523 (2000) (new

standard of review under AEDPA “places a new constraint on the

power of a federal habeas court to grant a state prisoner’s

application for a writ of habeas corpus with respect to claims

adjudicated on the merits in state court”).

The same purposes are made clear in the House of

Representatives Conference Report. See H.R. Conf. Rep. No.

104-518, at 11 (1996), reprinted in 1996 U.S.C.C.A.N. 944

(noting AEDPA amendments intended to “curb the abuse of the .

statutory writ of habeas corpus, and to address the acute problems

of unnecessary delay and abuse in capital cases,” as well as to

require exhaustion of state remedies and deference to state court

decisions meeting new standard).

That AEDPA specifically delineates the limited

circumstances in which the one-year limitations period may be

tolled, as well as providing in detail for the events that trigger the

running of the statute, provides more than “good reason to

believe” Congress did not intend that other, equitable

considerations would toll the running of the statute. See Giles v.

United States, 6 F.Supp.2d 648, 650 (E.D.Mich. 1998) (“the

detail of § 2255 . . . indicates that Congress did not intend to

permit courts to read other unmentioned and open-ended

equitable exceptions into the statute), aff'd, 2000 WL 1720730

(Nov. 8, 2000); United States v. Beggerly, 524 U.S. 38, 48 (1998)

(equitable tolling inconsistent with text of Quiet Title Act, which

already allowed for equitable tolling until plaintiff knew or

should have known of action); United States v. Brockamp, 519

U.S. 347, 350-53 (1997) (highly detailed and technical statute of

limitations for tax refund claim “cannot easily be read as

containing implicit exceptions”); cf United States v. Reccko, 151

F.3d 29, 34 (1st Cir. 1998) (applying maxim expressio unius est

exclusio alterius in concluding that the commission did not intend

exception in sentencing guidelines to be expanded beyond its

terms).

This conclusion is strengthened by AEDPA’s core

purposes to narrow the habeas remedy and ensure that habeas

corpus petitions reach finality without excessive delay. These

purposes are in sharp contrast with those described in Burnett v.

New York Cent. R.R. Co., 380 U.S. 424, 426-36 (1965)

(interpreting Congressional intent to protect plaintiffs by allowing

tolling under Federal Employers’ Liability Act during pendency

of suit incorrectly filed in state, rather than Federal court). Here,

in contrast, the unequivocal legislative history indicating an intent

to shorten and restrict the time period for habeas relief, together

with the detailed provisions of § 2244(d) making no reference to

tolling based on equitable considerations, demonstrate that

Congress did not want the equitable tolling doctrine to apply. The

need for finality on the part of the public, victims of crime, and

their families in the face of extremely long delays in the court

system adds “special importance” to the narrow interpretation of

the statute of limitations under AEDPA. See Beggerly, 524 U.S.

at 48 (equitable tolling inappropriate where it “would throw a

cloud of uncertainty” over the rights of landowners).

Although at least eight circuit courts of appeal have

addressed this issue and concluded that equitable tolling applies

to AEDPA’s statute of limitations, the reasoning of those cases is

rs

unpersuasive. In general, the cases address the issue not as one

of statutory interpretation or Congressional intent in accord with

the Supreme Court’s analysis in Beggerly and Brockamp, but as

a narrow question of jurisdiction. Rather than considering

whether Congress intended that equitable tolling apply, the cases

simply ask whether the limitations provision is a statute of

limitations or, instead, provides a jurisdictional bar. Reaching the

obvious conclusion that no jurisdictional bar is imposed, the cases

then declare that equitable tolling applies, in most cases without

further addressing Congressional intent. See Smith v. McGinnis,

208 F.3d 13, 17-18 (2d Cir. 2000) (relying on jurisdiction),

cert. denied, 121 S.Ct. 104 (2000); Miller v. New Jersey State

Dept. of Corrections, 145 F.3d 616, 617-19 (3d Cir. 1998)

(jurisdiction); Harris v. Hutchinson, 209 F.3d 325, 328-30 (4th

Cir. 2000) (addressing both jurisdiction and _ statutory

interpretation); Davis v. Johnson, 158 F.3d 806, 810 (Sth Cir.

1998) (jurisdiction), cert. denied, 119 S.Ct. 1474 (1999); United

States v. Marcello, 212 F.3d 1005, 1010 (7th Cir. 2000) (adopting

equitable tolling under § 2255, but citing Zaliani v. Chrans, 189

F.3d 597, 598 (7th Cir. 1999), in which the court raised the

question of whether “room remains for importing the judge-made

doctrine of equitable tolling” in light of AEDPA’s express tolling

provisions), cert. denied, 121 S.Ct. 188 (2000); Calderon v.

United States Dist. Court (Beeler), 128 F.3d 1283, 1288 (9th Cir.

1997) (discussing jurisdiction and legislative history), cert.

denied, 522 U.S. 1061, 1099 (1998), overruled on other grounds

by Calderon v. United States Dist. Court (Kelly), 163 F.3d 530,

540 (9th Cir. 1998); Miller v. Marr, 141 F.3d 976, 978 (10th Cir.)

(adopting reasoning of Calderon), cert. denied, 525 U.S. 891

(1998); Sandvik v. United States, 177 F.3d 1269, 1271-72 (11th

Cir. 1999) (discussing jurisdiction and legislative history in

context of §2255); cf Moore v. United States, 173 F.3d 1131,

1134 (8th Cir. 1999) (citing with approval cases adopting

equitable tolling based on jurisdiction argument; holding that Fed.

R. Civ. P. 6(a) applies to calculation of the starting date of the

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running of the statute); United States v. Cicero, 214 F.3d 199,

202-203 (D.C. Cir. 2000) (noting majority and minority views on

tolling; question not reached as petitioner not entitled to tolling in

any event).

Jurisdiction, however, is the wrong question. While it is

perfectly true that a jurisdictional bar (as is created by, for

instance, missing the deadline for filing a notice of appeal)

precludes a court from enlarging the time limit in question, a

jurisdictional bar is by no means the only basis for precluding

enlargement of a statutory time limit. Even assuming, arguendo,

that AEDPA’s statute of limitations does not impose a

Jurisdictional bar, adopting a judicially-created doctrine of

equitable tolling may nevertheless be foreclosed, as here, by

traditional principles of statutory construction and legislative

intent. See Beggerly, 524 U.S. at 48; Brockamp, 519 U.S. at 350.

For all these reasons, if the Court reaches the issue in this

case, it should hold that Congress did not intend equitable tolling

to be applied to AEDPA’s statute of limitations.

VI. SIMILARLY, IF THE COURT REACHES

THE ISSUE, IT SHOULD HOLD THAT

FEDERAL HABEAS PETITIONS MAY NOT.

BE STAYED PENDING EXHAUSTION IN

STATE COURT.

If the Court reaches the issue of a potential stay of federal

habeas corpus proceedings while a petitioner returns to state court

to exhaust his claims, the Court should hold that such a Stay is not

permissible under AEDPA.

The exhaustion doctrine of Rose v. Lundy, 455 U.S. 509,

522 (1982),does not permit the district court to retain jurisdiction

over a federal habeas corpus petition while the prisoner returns to

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state court to exhaust his claims. See Carmichael v. White, 163

F.3d 1044, 1045 (8th Cir. 1998) (district court has no authority to

hold mixed petition in abeyance pending exhaustion); Victor v.

Hopkins, 90 F.3d 276, 282 (8th Cir. 1996) (same), cert. denied,

519 U.S. 1153 (1997); Sterling v. Scott, 57 F.3d 451, 454 (Sth

Cir. 1995), cert. denied, 516 U.S. 715 (1996). But see Calderon

v. United States District Court, 144 F.3d 618, 620 (9th Cir. 1998)

(district court did not err in holding petition in abeyance). Only

the existence of "truly exceptional circumstances" can justify an

exception to this rule. Carmichael, 163 F.3d at 1045. To hold

otherwise would eviscerate the holding of Rose v. Lundy, 455

U.S. at 522, and create an administrative nightmare,

impermissibly allowing the petitioner "to use the federal district

court as a jurisdictional parking lot." See Sterling v. Scott, 57

F.3d 451, 454 (Sth Cir. 1995), cert. denied, 516 U.S. 715 (1996).

Such a result would undermine AEDPA’s statute of limitations

and encourage the filing of unexhausted federal habeas corpus

petitions.

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Conclusion

For the foregoing reasons, the amici states respectfully

urge the Court to reverse the lower-court decision.

January 8, 2001

Respectfully submitted,

THOMAS F. REILLY

Attorney General of Massachusetts

CATHERINE E. SULLIVAN*

Assistant Attorney General

WILLIAM J. MEADE

Assistant Attorney General

One Ashburton Place

Boston, Massachusetts 02108

(617) 727-2200

* Counsel of Record

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