Tomorrow’s Argument in Dodd v. United States

By Amy Howe
on Mar 21, 2005 at 6:02 pm

Tomorrow’s second case – No. 04-5286, Dodd v. United States – 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 petitioner’s Section 2255 motion is timely). That statute provides, in relevant part, that the limitations period begins to run on “the 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.”

Dodd contends that (as five circuits have held) the limitations period does not begin to run until all three of the statute’s prerequisites have been satisfied: that is, the Court “initially” recognizes the right, the “right has been newly recognized,” and the right has been “made retroactively applicable to cases on collateral review.” The United States espouses the conclusion reached by four other circuits, including the Eleventh Circuit in Dodd’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 Dodd’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 “Spangler Posse” – 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. Petitioner’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 “agree unanimously about which specific violations make up the ‘continuing series of violations’” 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 Dodd’s motion was untimely because it should have been filed within one year of the Court’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 “unambiguous” language means. Dodd construes the fact that all three requirements were phrased in the past tense to indicate that all three of the paragraph’s requirements must be met before the limitations period will start to run. Dodd also notes that the Eleventh Circuit’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)’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 “initially recognized,” 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 “protective” 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) – that a right be newly recognized and made retroactive – are merely prerequisites for the application of the paragraph at all. If those two criteria are not met, the U.S. explains, then the paragraph’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 “the date on which the right asserted was initially recognized by the Supreme Court.” The U.S. does not seriously dispute Dodd’s argument that its interpretation will preclude relief in many – if not all – second or successive motions. Instead, it responds with the briefing equivalent of a shrug, explaining that such a result, standing alone, “does not provide a basis for disregarding the plain terms” of the statute and that, moreover, the statute reflects Congress’s efforts “to draw the balance between the need for a final end to litigation and the goals served by conflating collateral review.”