The following analysis was written by Chris Pudelski, an attorney at Akin Gump. His earlier post previewing this case can be found here.

Tuesday's argument in Lawrence v. Floridarevealed that the Court may be willing to loosen the strictures that AEDPA places on criminal defendants seeking post-conviction relief. The Court appeared divided on the issue of where an application for post-state conviction relief must be pending for 28 U.S.C. § 2244(d) tolling purposes. Section 2244(d) generally establishes a one-year limitations period for filing a federal habeas petition, but subsection (d)(2) provides for tolling of that deadline in the following circumstance: "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." Id § 2244(d)(2) (emphasis added). The Court was presented with the issue of whether a cert. petition filed after state denial of post-conviction relief constitutes a "pending application" entitling a prospective federal habeas petitioner to statutory tolling.

Generally speaking, the liberal wing of the Court appeared to side with Lawrence, who argued that a cert. petition filed after denial of state post-conviction relief tolls the one-year limitations period for filing a federal habeas petition, whereas the conservative wing appeared to side with the State, who argued that the cert. petition did not toll the period for filing of a habeas petition. As the argument developed, a majority of the Court expressed concern over the practical results of the State's interpretation, leaving the impression that the Court may reverse the judgment of the Eleventh Circuit and rule in Lawrence's favor.

Perhaps the most interesting development came when Mary Catherine Bonner, counsel for Lawrence, responded to Chief Justice Roberts' query as to whether she had any statistics on the number of post-conviction collateral review petitions before the Court. After professing ignorance on the total, Bonner explained that, of those it saw, the Court often granted many of the State's cert. petitions in the post-conviction relief context. Tr. 21. Bonner argued in these instances, where the defendant wins on appeal and the State files a cert. petition, Florida's interpretation would require the clock to run to the detriment of the defendant during the time the State's cert. petition is pending. If the State prevailed before the Court, and the case was remanded to state court for further proceedings, the clock for filing a subsequent habeas petition would have almost always expired. Bonner explained that this made "the whole process turn[] on its head." Tr. 21.

Bonner's "reverse and remand" hypothetical was a key point of discussion throughout the remainder of the argument. The briefs had also discussed a hypothetical where the defendant files a cert. petition, prevails, and the case is remanded to state court for further proceedings. In that situation, and according to Respondent's interpretation, the clock for filing a federal habeas petition would run (and likely expire) while the cert. petition was pending, thus precluding federal relief. Consequently, the defendant would have a strong incentive to file a habeas petition in federal court within the one-year limitations period to protect the defendant in the case that his cert. petition was denied. But in the hypothetical raised at argument, the defendant could not file a "protective" habeas petition because there was no relief to be sought: the defendant was not in state custody.

Christopher Kise, counsel for the State, had two general responses to these hypotheticals. First, he viewed them as occurrences in "very unusual circumstances." Tr. 30. Second, he suggested that principles of equitable tolling would operate to toll the limitations period, a point with which Chief Justice Roberts seemed to agree.

Justices Scalia and Kennedy did not seem convinced by the first response. Justice Kennedy stated: "But you're asking us to say that the Congress has written a statute which doesn't take account that the state might sometimes file a petition for certiorari that would be granted. And you say oh, that's so rare, that's so extra extraordinary. It happens. It's part of the system." Tr. 34. And before Mr. Kise could answer, Justice Scalia said: "Would you advise a client that way? Would you advise a client that way? . . . You've won here and the state is taking certiorari to the Supreme Court. Don't worry about making a protective filing in the district court because, you know, if by chance the Supreme Court reverses, equitable tolling will apply. You know, you roll the dice with equity." Tr. 34. Mr. Wise basically conceded the point, arguing that you could not advise filing a protective petition in that situation because there is no actual relief to be sought. Justice Stevens then added: "The irony of your position is that it has those harshest consequences in those rare cases where there was a denial of constitutional right." Tr. 35.

Justices Stevens and Scalia did not appear to be convinced of the second response, which argued that equitable tolling would apply in the harshest circumstances. Early in Mr. Wise's argument, Justice Stevens sought clarification that a petition was "pending" while before the state courts but not the Supreme Court, even in situations where the Supreme Court reverses a state court judgment and remands for further proceedings. Mr. Kise agreed. But with the Court's very last question of Mr. Wise, Justice Scalia asked the following: "Let me be clear on your answer to Justice Stevens' earlier question. Where there is a reversal of the state judgment by, by this Court, and the case is remanded to the state, you don't argue that what occurs then is equitable tolling? But you say that the case is again pending once it goes back to the state, is that right?" Mr. Kise concurred, stating "once it's back in the state system then it would have to be considered pending . . . ." Tr. 46.

Although Mr. Kise did not have time to develop this argument, Justice Scalia's question suggests that the State's interpretation, which requires that the application is considered pending when before a state court, does not permit equitable tolling. In the "reverse and remand" hypothetical where the State seeks certiorari and prevails, the federal habeas clock runs to the detriment of the defendant, and Mr. Kise seems to have suggested that equitable tolling does not apply.

The Justices also expressed several practical concerns with filing "protective" habeas petitions while a cert. petition is pending. Justice Breyer opined that under the State's interpretation lawyers and judges will "get mixed up." He explained: "On your interpretation, I just see a mess, and on the other interpretation, it seems to work out fine." Tr. 32. Justice Scalia, after having spent the first half of the argument seemingly supportive of the State's position, had the following colloquy with Mr. Kise:

J. SCALIA: Can I ask "“ it seems very strange to me. I can understand protective filings when you've lost, but it seems to me a very strange protective filing. When you've won in state court and the government has taken certiorari, can you file, file in Federal district court? What do you say? What are you complaining about?
KISE: Exactly my point, Your Honor. You cannot.
J. SCALIA: No. It's their point. I don't see how it's your point. How can you cover yourself? I mean, if we come out your way, how "“ how "“
J. KISE: There isn't a need to cover us up, Your Honor, because you've won in state court.

Tr. 33-34. Justice Ginsburg also expressed concern, explaining that for many prisoners to file both a federal habeas petition and a certiorari petition is "a lot to put on a person, particularly the one who isn't represented." Tr. 37. The Justices also inquired into whether it was possible for a district court to even proceed with a habeas petition while a virtually identical cert. petition reviewing the denial of state collateral relief was pending before the Court. Tr. 39. Mr. Kise replied that it was possible and that as a practical matter most courts would proceed given the low likelihood of a cert. petition actually being granted. Justice Kennedy expressed some doubt in response: "I'm not sure if I would tell the district courts that's what they ought to do, is a wise expenditure of resources. I'll think about that." Tr. 41.

Overall, the argument revealed disagreement within the Court over how to interpret the language of Section 2244(d)(2). Chief Justice Roberts and Justice Alito appeared supportive of the State's position, while Justices Stevens, Breyer, Ginsburg, and Souter appeared supportive of Lawrence's position. Justice Kennedy expressed doubt with the State's position, and Justice Scalia expressed doubt with both positions. Notably, the Court did not discuss the two equitable tolling arguments advanced by Lawrence in the event the Court adopts the State's interpretation of Section 2244(d)(2). Whatever the outcome, Lawrence should have a serious impact on the litigation behavior of criminal defendants and the resulting number of habeas petitions filed in federal court pending Supreme Court review of a state denial of post-conviction relief.

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