Tomorrow’s Argument in Dodd v. United States
on Mar 21, 2005 at 6:02 pm
Tomorrowâ€™s second case â€“ No. 04-5286, Dodd v. United States â€“ is one for the AEDPA groupies among us. At issue is when the one-year statute of limitations in paragraph 6(3) of 28 U.S.C. 2255 begins to run (and, thus, whether the petitionerâ€™s Section 2255 motion is timely). That statute provides, in relevant part, that the limitations period begins to run on â€œthe date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review.â€
Dodd contends that (as five circuits have held) the limitations period does not begin to run until all three of the statuteâ€™s prerequisites have been satisfied: that is, the Court â€œinitiallyâ€ recognizes the right, the â€œright has been newly recognized,â€ and the right has been â€œmade retroactively applicable to cases on collateral review.â€ The United States espouses the conclusion reached by four other circuits, including the Eleventh Circuit in Doddâ€™s case: the limitations period begins to run from the date when the Supreme Court initially recognized the right.
Assistant Federal Public Defender Janice Bergmann will argue on Doddâ€™s behalf; Assistant to the Solicitor General Jim Feldman will argue on behalf of the United States.
In the late 1980s, petitioner played a major role in a large drug distribution network named the â€œSpangler Posseâ€ â€“ a fact that the government presumably includes to prove that (as was not uncommon in the eighties) petitioner is also guilty of bad taste. In 1993, petitioner was convicted of several offenses relating to his participation in the drug network, including one count of knowingly and intentionally engaging in a continuing criminal enterprise (CCE). Significantly, the jury that convicted petitioner acquitted him of conspiring to possess cocaine with the intent to distribute it, which had been one of the predicate acts of the CCE count. Petitionerâ€™s direct appeals were unsuccessful, and his conviction became final in 1997.
In June 1999, the Court held in Richardson v. United States that a jury must â€œagree unanimously about which specific violations make up the â€˜continuing series of violationsâ€™â€ needed for a CCE charge. In April 2001, Dodd filed his first Section 2255 motion. Relying on Richardson, he argued that he was entitled to relief because the jury should have been instructed that they had to agree unanimously that he was guilty of each of the predicate acts for the CCE charge. The government contended (and the lower courts agreed) that Doddâ€™s motion was untimely because it should have been filed within one year of the Courtâ€™s decision in Richardson.
Dodd and the U.S. agree on one thing: the language of paragraph 6(3) is unambiguous. They part ways, however, on what exactly this â€œunambiguousâ€ language means. Dodd construes the fact that all three requirements were phrased in the past tense to indicate that all three of the paragraphâ€™s requirements must be met before the limitations period will start to run. Dodd also notes that the Eleventh Circuitâ€™s rule would preclude virtually all second or successive motions based on a new rule of constitutional law, which are also governed by paragraph 6(3)â€™s time limitations. He reasons that because such second or successive motions are permitted only when the Supreme Court has already made review retroactive, but because the limitations period would begin to run when the right was â€œinitially recognized,â€ the one-year period would generally run long before the Court could grant review and deem the rule at issue retroactive. Dodd also emphasizes the prudential concerns that would be advanced by his interpretation, including the possibility that the Eleventh Circuit rule would increase the likelihood of frivolous petitions as prisoners filed â€œprotectiveâ€ motions every time the Court issued a decision that could be construed as establishing a new right.
By contrast, the United States contends that the second and third clauses of paragraph 6(3) â€“ that a right be newly recognized and made retroactive â€“ are merely prerequisites for the application of the paragraph at all. If those two criteria are not met, the U.S. explains, then the paragraphâ€™s statute of limitations does not come into play at all. If they are met, then the one-year statute of limitations begins to run from â€œthe date on which the right asserted was initially recognized by the Supreme Court.â€ The U.S. does not seriously dispute Doddâ€™s argument that its interpretation will preclude relief in many â€“ if not all â€“ second or successive motions. Instead, it responds with the briefing equivalent of a shrug, explaining that such a result, standing alone, â€œdoes not provide a basis for disregarding the plain termsâ€ of the statute and that, moreover, the statute reflects Congressâ€™s efforts â€œto draw the balance between the need for a final end to litigation and the goals served by conflating collateral review.â€