Argument Preview: Lawrence v. Florida on 10/31

The following argument preview was written by Chris Pudelski, an attorney at Akin Gump.

The infamously muddled terms of the Antiterrorism and Effective Death Penalty Act return to the Supreme Court on Tuesday in No. 05-8820, Lawrence v. State of Florida, which presents the question whether a pending petition for writ of certiorari in the U.S. Supreme Court tolls AEDPA’s one-year limitations period following a state’s denial of post-conviction relief (the merits briefs can be found here). If the Court concludes that the certiorari petition does not toll the limitations period, Lawrence asks the Court to consider whether equitable tolling is appropriate.

Mary Catherine Bonner of Fort Lauderdale will argue on behalf of petitioner Gary Lawrence. Christopher Kise of Foley & Lardner, LLP will argue on behalf of respondent State of Florida. The parties’ briefs are available here.

In March 1995, a Florida jury convicted Lawrence of premeditated murder in the first degree, conspiracy to commit murder, auto theft, and petty theft following the brutal beating death of his wife’s lover. Following the jury’s recommendation, the trial court sentenced Lawrence to death. On appeal, the Supreme Court of Florida affirmed, and his conviction became final on January 20, 1998. The State of Florida provided Lawrence with counsel, who took an active role in his case on November 5, 1998. Lawrence then filed a motion for state post-conviction relief on January 19, 1999, 364 days after direct review was finalized, arguing primarily that his trial counsel had rendered ineffective assistance. The trial court denied the motion, and on October 17, 2002 the Supreme Court of Florida affirmed. Lawrence then filed a petition for writ of certiorari in the Supreme Court on January 9, 2003.

Lawrence subsequently filed a pro se petition for habeas corpus relief in the Northern District of Florida on March 11, 2003. The court then appointed counsel who filed a supplemental habeas petition. The State opposed the motion, urging dismissal under Eleventh Circuit precedent holding that a petition for certiorari before the Supreme Court does not toll the one-year limitations period to seek habeas relief. Lawrence argued that, at a minimum, the disagreement among the courts of appeals constituted an “extraordinary circumstance” entitling him to equitable tolling. The district court sua sponte entered an order staying the proceedings while another petition presenting the tolling issue was pending before the Supreme Court but dismissed Lawrence’s petition as time-barred after certiorari was denied in that case. On appeal, the Eleventh Circuit agreed. It concluded that because AEDPA’s one-year limitations period is not tolled while a petition for certiorari for review of a state court’s denial of post-conviction relief is pending, Lawrence’s cert. petition was filed too late.

28 U.S.C. § 2244(d), which governs the “Finality of determination” in habeas proceedings, provides in relevant part: “(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; . . . . (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.”

The Court is presented with three related issues. First, does the filing of a cert. petition toll the one-year limitations period under § 2244(d)? Ten of the eleven circuits to consider the issue have concluded that it does not. The disagreement stems from the failure of subsection (d)(2) to specify where the “application” must be “pending.” Lawrence argues that the plain language of (d)(2) indicates that (d)(1)’s one-year limitation is tolled while a “properly filed application for state post-conviction or other collateral review with respect to the pertinent judgment or claim is pending.” He contends that “pending” refers to the “application for state post-conviction . . . relief,” and that the application remains “pending” when the certiorari petition is filed. Lawrence also argues that AEDPA’s statutory framework supports tolling. He points to Clay v. United States, 537 U.S. 522 (2003), where the Court, interpreting a related provision of Section 2255, concluded that a federal conviction is not “final” until the time to petition for certiorari has expired. Lawrence thus contends that Clay strongly suggested that no state court conviction is final until the time for filing for certiorari has expired. Moreover, the State’s interpretation will encourage petitioners to preserve their federal claims by filing an unripe federal habeas petition while their certiorari petition is pending. And the State’s interpretation would lead to an absurd result when the Supreme Court overturns a state court judgment rendered in state post-conviction proceedings and remands to state court for further proceedings. In that situation, the federal habeas clock would run (and most likely expire) while the petition is pending before the Supreme Court, notwithstanding that the basis for reversal was the state-post conviction proceeding. In response, the State contends that subsection (d)(2)’s tolling provision applies only to post-conviction proceedings pending in state court. It contends that a petition for certiorari is neither an application “for State post-conviction” relief nor for “other collateral review” under subsection (d)(2). Thus, the limitations period is tolled only until state remedies are actually exhausted. This fulfills AEDPA’s purposes of promoting finality and comity. To permit tolling upon the filing of a certiorari petition would encourage prisoners to prolong the finality of their convictions by filing frivolous cert. petitions. The State also argues that this interpretation permits a state prisoner to file a federal habeas petition once state proceedings are completed.

Second, Lawrence argues in the alternative that extreme disorganization within Florida’s capital defender program contributed to unnecessary delays in filing his application and constituted an “extraordinary circumstance” warranting equitable tolling. Specifically, the State’s division of its single office representing indigent capital defendants into three regional offices resulted in bureaucratic delays and shortages of counsel. He contends that this disorganization was primarily responsible for the delay in filing his petition. In response, the State argues that any alleged disorganization did not cause Lawrence to file his habeas petition late. The Florida Supreme Court’s mandate did not issue until thirty days after its decision, giving Lawrence thirty-one days to file his habeas petition. The State contends that Lawrence could have easily filed the habeas petition during that time, particularly since it presented the same claims as his state post-conviction petition.

Third, Lawrence contends (again in the alternative) that his state-appointed counsel’s failure to follow Eleventh Circuit precedent holding that a certiorari petition does not toll the one-year limitations period constituted an “extraordinary circumstance” warranting equitable tolling. In response, the State argues that Lawrence’s ignorance, negligence, or bad advice from counsel do not amount to an extraordinary circumstance. Moreover, the State contends that the attorney error claims are essentially claims of ineffective assistance of post-conviction counsel, which are not cognizable in a federal habeas proceeding. Finally, the State argues there is no right to counsel in post-conviction proceedings, and the State cannot be punished for appointing such counsel.