Gonzalez v. Thaler: Justices focus on COA issue
At oral argument in the Texas state prisoner’s federal habeas case Gonzalez v. Thaler Wednesday morning, the Justices focused primarily on whether all three requirements for a certificate of appealability (COA) under 28 U.S.C. § 2253(c) are jurisdictional. The issue that initially brought this case to the Court – what event triggers the one-year clock for a state prisoner to file a federal habeas petition under 28 U.S.C. § 2244(d)(1) of the Anti-Terrorism and Effective Death Penalty Act (AEDPA) – received relatively less air time. A majority of the Court seemed at least somewhat sympathetic to the notion that a technical defect in a COA should not produce a jurisdictional bar to a habeas appeal. However, even some Justices who are typically protective of habeas rights appeared unconvinced by petitioner Gonzalez’s interpretation of the AEDPA triggering provision. In rebuttal, Gonzalez’s counsel spoke directly to Justice Kagan, arguing that the state’s interpretation of the AEDPA triggering provision would disadvantage the ninety-nine percent of Texas criminal defendants who do not file petitions for discretionary review in the Texas Court of Criminal Appeals.
Patricia Millett argued for the petitioner, Rafael Gonzalez. Chief Justice Roberts began the questioning by asking her, “So what if [the COA] identifies something that is not remotely a federal constitutional issue . . . Does that still work for you?” Ms. Millett responded that it was not a jurisdictional bar. Justice Scalia jumped in quickly, seeking first a concession that a certificate of appealability is a jurisdictional requirement, and then agreement that the COA will be jurisdictionally invalid if it fails to comply Section 2253(c)(3)’s requirement that it “shall indicate which specific issue or issues satisfy the required showing [“a substantial showing of the denial of a constitutional right.”] Ms. Millett agreed with the former proposition, but not the latter. Justice Kagan then asked what would happen if a judge merely typed the words “certificate of appealability” on a sheet of paper. Ms. Millett responded that the circuit court would still possess jurisdiction, because it was “fair to presume that it is the deliberate determination of a judicial officer” that the requirements of the COA were met.
Justice Ginsburg ventured that it was “a little odd that you would identify [the constitutional issue] for the court of appeals [in the COA], when the court of appeals couldn’t take it up,” since the district court had dismissed Gonzalez’s federal habeas petition as untimely. Justice Kennedy asked Ms. Millett whether it helped the petitioner to distinguish a jurisdictional requirement like a Notice of Appeal (NOA) on the ground that the NOA had to indicate the judgment or order being appealed. Ms. Millett agreed that it did, and then said that the Court’s doctrine recognized that prisoners “who have done everything humanly possible within their control” could be deemed to have met even jurisdictional requirements. Justice Scalia countered that sometimes prisoners do suffer because of the mistake of a district court judge. Ms. Millett responded that in this case the pro se prisoner had done everything humanly possible, and it was not until this Court that the state had said, “Hang on; there was never any jurisdiction over this whole case.”
Justice Alito appeared to offer a solution, asking Ms. Millett if the requirements of Section 2253(c) might be “mandatory but not jurisdictional.” She readily agreed with that assessment, adding that it was more efficient for this “functional gatekeeping requirement” if the COA is not a “side show.”
Justice Sotomayor turned the argument to the timing issue, saying that she read Jimenez v. Quarterman to say that “the Court should be reading” the language of the AEDPA triggering provision, Section 2244(d)(1), “just as the Fifth Circuit did.” Justice Kagan offered that Section 2244(d)(1)(A) told a state prisoner that the one-year AEDPA clock was triggered when “you lose [the appeal] or you quit [seeking review].” Justice Kagan said flatly that she didn’t understand Gonzalez’s argument, stating that she saw “no suggestion in section (A) that there is ever going to be a conflict between these two ways of a judgment becoming final.” Justice Ginsburg appeared persuaded by Justice Kagan’s “you lose or you quit” read of Section 2244(d)(1)(A), adding that Gonzalez’s interpretation would produce different results for prisoners in different states, as well as different regimes for state and federal prisoners. Ms. Millett responded that Gonzalez’s interpretation respected federalism and comity by basing the triggering provision on when a conviction is final under state law.
Before Ms. Millett sat down, Justice Scalia chided the parties on a practice point. They had included 28 U.S.C. § 2244(d)(1) in the appendices of their cert.-stage filings, but not in the appendices of their briefs. Justice Scalia said he found this to be inconvenient, as he was trying to refer to the statute in reading the briefs.
Jonathan Mitchell argued on behalf of the State of Texas. Chief Justice Roberts began by asking him whether he agreed that the only fault for the COA’s inadequacy lay with the judge, not the Gonzalez. Mr. Mitchell agreed. Then Justice Breyer asked, “What are we arguing about?” He asked why another appeals court judge, in reviewing the case, could not simply “fill in the blank” in the COA and fix it. Justice Breyer said he worried that if the Court adopted the state’s position, it would increase the workload for appellate courts, which would have to review all of the COAs to determine their sufficiency before hearing appeals.
Justice Kagan asked for clarification on the state’s position that the jurisdictional requirements of 28 U.S.C. § 2253(c) are (c)(1) and (c)(3), but not (c)(2), which requires a habeas petitioner seeking a COA to make a “substantial showing of the denial of a constitutional right.” Mr. Mitchell confirmed that the state views the jurisdictional elements to be (c)(1), which mandates a COA, and (c)(3), which requires that it indicate the issue(s) on which the required showing is made. Justice Kagan seemed unconvinced, saying that it seemed “sort of hard to make the jump . . . and leave [(c)(2)] out of it.”
Justice Ginsburg stated that the aspect of the case that was “unsettling” to her was that “there is an issue for the court of appeals to decide,” but that it was the timeliness issue, because the Fifth Circuit could not decide the speedy trial issue. Justice Ginsburg asked whether such a distinction was one “that only a lawyer could love,” if this case could fail because the judge granting the COA had not identified the speedy trial issue, when the Fifth Circuit could not reach that issue.
Justice Kagan picked up this theme, asking Mitchell what would happen if the judge granting the COA simply forgot to write down the speedy trial issue. Justice Sotomayor returned to what she identified as a theme of Justice Breyer’s and Ginsburg’s questions: that the state’s interpretation would require a judge to consider the merits of the case, when he could dispose of it more efficiently on procedural grounds.
Turning to the AEDPA triggering provision, Justice Kagan asked Mitchell about one of Gonzalez’s policy arguments. In her view, his “best argument” is the “oddity” of what would happen if the AEDPA clock starts running before federal habeas petitioners can toll it by filing state postconviction proceedings. Mr. Mitchell responded that habeas petitioners could file “protective” federal habeas petitions while waiting to exhaust state court remedies.
At the conclusion of Mitchell’s time, Justice Breyer returned again to the issue of the COA, asking once more why an appeals court judge could not simply “fix” the COA by “filling in the blanks.” Once again, he asked why this was not a more efficient procedure.
Assistant to the Solicitor General Ann O’Connell argued on behalf of the United States as an amicus in support of the state. In response to questions by Justice Ginsburg, Ms. O’Connell stated that the court of appeals could reach a substantive issue in a habeas appeal despite the fact that the district court had dismissed a habeas case on a procedural ground. She said that the court of appeals could issue an amended COA to reach that substantive issue after resolving the procedural issue. However, Ms. O’Connell noted that no court had yet determined that Gonzalez’s case involved a “substantial showing of the denial of a constitutional right.”
Chief Justice Roberts asked if the Supreme Court could issue an amended COA, and Ms. O’Connell responded affirmatively. Justice Breyer then said, “So I could just sign this tomorrow and moot this case and get rid of it.” To laughter, Ms. O’Connell responded, “I don’t think so.” Chief Justice Roberts pointed out that the Circuit Justice for the Fifth Circuit is Justice Scalia, not Justice Breyer, to which Justice Scalia rejoined, “So there!” Ms. O’Connell said she thought it did not make sense for the Supreme Court to issue a COA in this case because “it has to go back anyway” for the Fifth Circuit to say whether it believes there is a debatable constitutional issue on the speedy trial claim.
In response to questions from Justice Kagan, Ms. O’Connell clarified that the United States does not share the state’s view that only Sections 2253(c)(1) and (c)(3) are jurisdictional requirements of the COA provision. In the view of the United States, she explained, all three parts of Section 2253(c) are jurisdictional requirements.
In her rebuttal on behalf of Gonzalez, Ms. Millett spoke directly to Justice Kagan on the policy question, asking “whether state prisoners should be worse off than federal prisoners.” She said that only one percent of state prisoners in Texas file petitions for discretionary review with the Texas Court of Criminal Appeals. The practical result is that if the Court adopts the state’s position, the vast majority of habeas petitioners will have less time before the AEDPA clock starts ticking.
Justice Kagan repeated, “Let me make sure I understand you. You’re saying 99 % don’t file petitions in Texas’s highest court.” Ms. Millett confirmed the ninety-nine-percent figure, saying that the Court should not construe the language of the AEDPA triggering provisions “to create a gap” between when a state court conviction is final when a prisoner can file for state postconviction. Justice Kagan asked whether “the argument is that under habeas review these petitioners are not going to be in good shape?” Again, Ms. Millett confirmed.
Justice Alito and Chief Justice Roberts pushed on the ninety-nine-percent figure. The Chief asked whether it included plea bargains. Ms. Millett said that it did, and that some prisoners appeal from guilty pleas. Before sitting down, Ms. Millett said that the Jimenez case, a pivotal precedent in this case, had involved an appeal from a guilty plea.
We’ll see if the reality of state court practice as described by petitioner’s counsel figures in the Court’s opinion.