This edition covers three capital case losses.  The Supreme Court this morning Weeks v. Angelone, a trial judge's refusal to clarify instructions when asked by deliberating jury in the penalty phase of a capital trial is not error.
 The Tenth Circuit, working its way through a large number of Oklahoma cases, this week denied relief on chiefly jury instructions and ineffective assistance of claims in Medlock v. Ward. The Sixth Circuit in Johnson v. Coyle examines a pre-retrial double jeopardy challenge to whether the accused can be tried after his conviction and death sentence was vacated in the state supreme court.

In depth this week covers the AEDPA's one year rule for filing.

Errata this week is light this week with a brief and humorous description of the United States Supreme Court and its justices drawn from Slate Magazine.

The Seventh Circuit's database will not be available until the next issue due to winter recess at Chicago-Kent School of Law which maintains access to the opinions both for this weekly and  Findlaw.com (who is the normal supplier for data on that Circuit).

Due to time constraints relating to out of state travel, this edition is being put out earlier then normal meaning not all decisions from the First and Fourth Circuits have been covered.
 

Weeks v. Angelone A trial judge's refusal to clarify instructions when asked by deliberating jury in the penalty phase of a capital trial is not error.

    Petitioner was tried in the Circuit Court for Prince William County, Virginia, in October 1993. After the jury had found him guilty of capital murder, a 2-day penalty phase followed. In this proceeding the prosecution sought to prove two aggravating circumstances: that Weeks “would commit criminal acts of violence that would constitute a continuing serious threat to society” and that his conduct was “outrageously or wantonly vile, horrible or inhuman, in that it involved depravity of mind or aggravated battery.” App. 192. During the penalty phase, the defense presented 10 witnesses, including petitioner, in mitigation.

    The jury retired at 10:40 a.m. on the second day to begin deliberations. At around noon, the judge informed counsel that the jury had asked the following question:

“Does the sentence of life imprisonment in the State of Virginia have the possibility of parole, and if so, under what conditions must be met to receive parole?” App. to Pet. for Cert. 90.

The judge responded to the jury’s question as follows:

“You should impose such punishment as you feel is just under the evidence, and within the instructions of the Court. You are not to concern yourselves with what may happen afterwards.” Ibid.

The prosecution agreed with the judge’s response and defense counsel objected. At 12:40 p.m., court reconvened and the judge told the jurors that there would be a one-hour luncheon recess and that they could go to lunch or continue deliberations, as a juror had apparently informed the bailiff that they might be interested in working through lunch. At 12:45 p.m., the jury retired from the courtroom. At 3:15 p.m., the judge informed counsel that he had received the following written question from the jury:

“If we believe that Lonnie Weeks, Jr. is guilty of at least 1 of the alternatives, then is it our duty as a jury to issue the death penalty? Or must we decide (even though he is guilty of one of the alternatives) whether or not to issue the death penalty, or one of the life sentences? What is the Rule? Please clarify?” Id., at 91 (emphasis in original).

The judge wrote the following response: “See second paragraph of Instruction #2 (Beginning with ‘If you find from … …’).” Ibid. The judge explained to counsel his answer to the jury’s question:

“In instruction number 2 that was given to them, in the second paragraph, it reads, ‘If you find from the evidence that the Commonwealth has proved, beyond a reasonable doubt, either of the two alternatives, and as to that alternative, you are unanimous, then you may fix the punishment of the defendant at death, or if you believe from all the evidence that the death penalty is not justified, then you shall fix the punishment of the defendant at imprisonment for life, or imprisonment for life with a fine not to exceed $100,000.’

“I don’t believe I can answer the question any clearer than the instruction, so what I have done is referred them to the second paragraph of instruction number 2, and I told them beginning with, ‘if you find from,’ et cetera, et cetera, for them to read that paragraph.”¹ App. 222—223.

The prosecution stated that the judge’s solution was appropriate. Defense counsel disagreed, and stated:

“Your Honor, we would ask that Your Honor instruct the jury that even if they find one or both of the mitigating factors–I’m sorry, the factors that have been proved beyond a reasonable doubt, that they still may impose a life sentence, or a life sentence plus a fine.” Id., at 223.

Defense counsel asked that his objection be noted.

    More than two hours later, the jury returned. The clerk read its verdict:

“[W]e the jury, on the issue joined, having found the defendant Lonnie Weeks, Jr., guilty of capital murder, and having unanimously found that his conduct in committing the offense is outrageously or wantonly vile, horrible or inhumane, in that it involved depravity of mind and or aggravated battery, and having considered the evidence in mitigation of the offense, unanimously fix his punishment at death … .” Id., at 225 (emphasis added).

The jurors were polled and all responded affirmatively that the foregoing was their verdict in the case.

    Petitioner presented 47 assignments of error in his direct appeal to the Virginia Supreme Court, and the assignment of error respecting the judge’s answering the jury’s question about mitigating circumstances was number 44. The Virginia Supreme Court affirmed petitioner’s conviction and sentence, holding that the claims petitioner advances here lack merit. 248 Va. 460, 465—466, 476—477, 450 S. E. 2d 379, 383, 390 (1994), cert. denied, 516 U.S. 829 (1995). The Virginia Supreme Court dismissed petitioner’s state habeas petition as jurisdictionally barred on timeliness grounds. The District Court denied petitioner’s request for federal habeas relief, and the Court of Appeals for the Fourth Circuit denied a certificate of appealability and dismissed his petition. 176 F.3d 249 (1999). We granted certiorari, 527 U.S. __ (1999), and now affirm.

    Petitioner relies heavily on our decisions in Bollenbach v. United States, 326 U.S. 607 (1946), and Eddings v. Oklahoma, 455 U.S. 104 (1982). Bollenbach involved a supplemental instruction by the trial court following an inquiry from the jury–in that respect it is like the present case–but the instruction given by the trial court in Bollenbach was palpably erroneous. 326 U.S., at 611. In this respect it is quite unlike the present case. Eddings arose out of a bench trial in a capital case, and this Court reversed a sentence of death because the trial judge had refused to consider mitigating evidence: “[I]t was as if the trial judge had instructed a jury to disregard the mitigating evidence Eddings proffered on his behalf.” 455 U.S., at 114.

    Here the trial judge gave no such instruction. On the contrary, he gave the instruction that we upheld in Buchanan v. Angelone, 522 U.S. 269 (1998), as being sufficient to allow the jury to consider mitigating evidence. And in addition, he gave a specific instruction on mitigating evidence–an instruction that was not given in Buchanan–in which he told the jury that “[y]ou must consider a mitigating circumstance if you find there is evidence to support it.”² Even the dissenters in Buchanan said that the ambiguity that they found in the instruction there given would have been cleared up by “some mention of mitigating evidence anywhere in the instructions.” Id., at 283.

    In Buchanan, we considered whether the Eighth Amendment required that a capital jury be instructed on particular mitigating factors. Buchanan’s jury was given precisely the same Virginia pattern capital instruction that was given to Weeks’ jury. See id., at 272, and n. 1. We noted that our cases have established that the sentencer may not be precluded from considering, and may not refuse to consider, any constitutionally relevant mitigating evidence, and that the State may structure the jury’s consideration of mitigation so long as it does not preclude the jury from giving effect to it. Id., at 276. We further noted that the “standard for determining whether jury instructions satisfy these principles was ‘whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence.’ ” Ibid. (quoting Boyde v. California, 494 U.S. 370, 380 (1990)). But, we stated that we have never held that the State must structure in a particular way the manner in which juries consider mitigating evidence. 522 U.S., at 276. We concluded that the Virginia pattern jury instruction at issue there, and again at issue here, did not violate those principles:

“The instruction did not foreclose the jury’s consideration of any mitigating evidence. By directing the jury to base its decision on ‘all the evidence,’ the instruction afforded jurors an opportunity to consider mitigating evidence. The instruction informed the jurors that if they found the aggravating factor proved beyond a reasonable doubt then they ‘may fix’ the penalty at death, but directed that if they believed that all the evidence justified a lesser sentence then they ‘shall’ impose a life sentence. The jury was thus allowed to impose a life sentence even if it found the aggravating factor proved.” Id., at 277.

But, as noted above, the jury in this case also received an explicit direction to consider mitigating evidence–an instruction that was not given to the jury in Buchanan. Thus, so far as the adequacy of the jury instructions is concerned, their sufficiency here follows a fortiori from Buchanan.³

    Given that petitioner’s jury was adequately instructed, and given that the trial judge responded to the jury’s question by directing its attention to the precise paragraph of the constitutionally adequate instruction that answers its inquiry, the question becomes whether the Constitution requires anything more. We hold that it does not.

    A jury is presumed to follow its instructions. Richardson v. Marsh, 481 U.S. 200, 211 (1987). Similarly, a jury is presumed to understand a judge’s answer to its question. See, e.g., Armstrong v. Toler, 11 Wheat. 258, 279 (1826) (opinion of Marshall, C. J.). Weeks’ jury did not inform the court that after reading the relevant paragraph of the instruction, it still did not understand its role. See ibid. (“Had the jury desired further information, they might, and probably would, have signified their desire to the court. The utmost willingness was manifested to gratify them, and it may fairly be presumed that they had nothing further to ask”). To presume otherwise would require reversal every time a jury inquires about a matter of constitutional significance, regardless of the judge’s answer.

    Here the presumption gains additional support from several empirical factors. First and foremost, each of the jurors affirmed in open court the verdict which included a finding that they had “considered the evidence in mitigation of the offense.”⁴ App. 225. It is also significant, we think, that the jurors deliberated for more than two hours after receiving the judge’s answer to their question. Over 4½ hours after the jury retired to begin deliberations, the jury asked the question at issue. Again, the question was:

“If we believe that Lonnie Weeks, Jr. is guilty of at least 1 of the alternatives, then is it our duty as a jury to issue the death penalty? Or must we decide (even though he is guilty of one of the alternatives) whether or not to issue the death penalty, or one of the life sentences? What is the Rule? Please clarify?” App. to Pet. for Cert. 91 (emphasis in original).

The question indicates that at that time it was asked, the jury had determined that the prosecution had proved one of the two aggravating factors beyond a reasonable doubt. More than two hours passed between the judge directing the jury’s attention to the appropriate paragraph of the instruction that answered its question and the jury returning its verdict. We cannot, of course, know for certain what transpired during those two hours. But the most likely explanation is that the jury was doing exactly what it was instructed to do: that is, weighing the mitigating circumstances against the aggravating circumstance that it found to be proved beyond a reasonable doubt. If, after the judge’s response to its question, the jury thought that it was required to give the death penalty upon finding of an aggravating circumstance, it is unlikely that the jury would have consumed two more hours in deliberation. This particular jury demonstrated that it was not too shy to ask questions, suggesting that it would have asked another if it felt the judge’s response unsatisfactory. Finally, defense counsel specifically explained to the jury during closing argument that it could find both aggravating factors proven and still not sentence Weeks to death. Thus, once the jury received the judge’s response to its question, it had not only the text of the instruction we approved in Buchanan, but also the additional instruction on mitigation, see n. 2, supra, and its own recollection of defense counsel’s closing argument for guidance. At best, petitioner has demonstrated only that there exists a slight possibility that the jury considered itself precluded from considering mitigating evidence. Such a demonstration is insufficient to prove a constitutional violation under Boyde, which requires the showing of a reasonable likelihood that the jury felt so restrained.⁵ See 494 U.S., at 380.

    It also appears that petitioner’s attorneys did not view the judge’s answer to the jury’s question as a serious flaw in the trial at that time. Petitioner’s attorney made an oral motion to set aside the sentence after the verdict of death was received, and did not even mention this incident in his motion. And the low priority and space which his counsel assigned to the point on his appeal to the Supreme Court of Virginia suggests that the present emphasis has some of the earmarks of an afterthought.

    Because petitioner seeks a federal writ of habeas corpus from a state sentence, we must determine whether 28 U.S.C. § 2254(d) precludes such relief. The Court of Appeals below held that it did. 176 F.3d, at 261. We agree. Section 2254(d) prohibits federal habeas relief on any claim “adjudicated on the merits in State court proceedings,” unless that adjudication resulted in a decision that was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d) and (1) (1994 ed., Supp. III). For the reasons stated above, it follows a fortiori that the adjudication of the Supreme Court of Virginia affirming petitioner’s conviction and sentence was neither “contrary to,” nor did it involve an “unreasonable application of,” any of our decisions.

United States v. Martinez-Sala Using a peremptory to strike a juror that should have been removed for cause does not violate "due process."

Held:  A defendant’s exercise of peremptory challenges pursuant to Rule 24 is not denied or impaired when the defendant chooses to use such a challenge to remove a juror who should have been excused for cause. Pp. 5—12.

    (a)  Although the peremptory challenge plays an important role in reinforcing a defendant’s constitutional right to trial by an impartial jury, see, e.g., Swain v. Alabama, 380 U.S. 202, 212—213, 218—219, this Court has long recognized that such challenges are auxiliary; unlike the right to an impartial jury guaranteed by the Sixth Amendment, peremptory challenges are not of federal constitutional dimension, see, e.g., Ross v. Oklahoma, 487 U.S. 81, 88. Peremptory challenges in federal criminal trials are governed by Rule 24 of the Federal Rules of Criminal Procedure. Rule 24(b) prescribes, inter alia, that for offenses “punishable by imprisonment for more than one year, … the defendant or defendants [are] jointly [entitled] to 10 peremptory challenges.” Rule 24(c) further provides that when, as in this case, an alternate juror is to be selected, each side is entitled to one peremptory challenge in selecting that juror. The question to which the Court turns is whether Martinez-Salazar was denied any right for which Rule 24 provides. Pp. 5—7.

    (b)  Ross dealt with a state-law question resembling the one presented here. This Court first rejected the Ross defendant’s position that, without more, the loss of a peremptory challenge constitutes a violation of the constitutional right to an impartial jury. 487 U.S., at 88. So long as the jury that sits is impartial, the Court held, the fact that the defendant had to use a peremptory challenge to achieve that result does not mean the Sixth Amendment was violated. Ibid. The Court then rejected the defendant’s due process objection that forced use of a peremptory challenge to cure a trial court’s error in denying a challenge for cause arbitrarily deprived him of the full complement of peremptory challenges allowed under Oklahoma law. Id., at 89. An Oklahoma statute accorded the defendant nine such challenges. Oklahoma courts had read into that grant a requirement that a defendant who disagreed with the trial court’s ruling on a for-cause challenge must, in order to preserve the claim that the ruling deprived him of a fair trial, exercise a peremptory challenge to remove the juror. Ibid. Even then, under state law, the error was grounds for reversal only if the defendant exhausted all peremptory challenges, and an incompetent juror therefore was forced upon him. Ibid. The defendant in Ross, the Court concluded, did not lose any state-law right when he used one of his nine challenges to remove a juror who should have been excused for cause; rather, he received all that state law allowed him, and the fair trial that the Federal Constitution guaranteed. Id., at 90—91. Pp. 7—8.

    (c)  This Court rejects the Government’s contention that federal law, like the Oklahoma statute considered in Ross, should be read to require a defendant to use a peremptory challenge to strike a juror who should have been removed for cause, in order to preserve the claim that the for-cause ruling impaired the defendant’s right to a fair trial. Although this Court has sanctioned various limitations on the exercise of peremptory challenges that could be viewed as effectively reducing the number of challenges available to a defendant, see, e.g., Stilson v. United States, 250 U.S. 583, 586, these cases address procedures under which such challenges are exercised. None of them demands that a defendant use or refrain from using a challenge on a particular basis or when a particular set of facts is present. To date this Court has recognized only one substantive control over a federal criminal defendant’s choice of whom to challenge peremptorily. Under the Equal Protection Clause, a defendant may not exercise a challenge to remove a potential juror solely on the basis of the juror’s gender, ethnic origin, or race. See, e.g., Batson v. Kentucky, 476 U.S. 79. The Court declines to read into Rule 24, or otherwise impose, the further control advanced by the Government. Pp. 8—9.

    (d)  However, the Court agrees with the Government’s narrower contention that Rule 24(b) was not violated in this case. The Ninth Circuit erred in concluding that the District Court’s mistake compelled Martinez-Salazar to challenge Gilbert peremptorily, thereby reducing his allotment of peremptory challenges by one. A hard choice is not the same as no choice. Martinez-Salazar received and exercised 11 peremptory challenges. That is all he is entitled to under the Rule. After objecting to the District Court’s denial of his for-cause challenge, he had the option of letting Gilbert sit on the petit jury and, upon conviction, pursuing a Sixth Amendment challenge on appeal. Instead, he elected to use a challenge to remove Gilbert. In choosing to remove Gilbert rather than taking his chances on appeal, Martinez-Salazar did not lose a peremptory challenge. Rather, he used the challenge in line with a principal reason for peremptories: to help secure the constitutional guarantee of trial by an impartial jury. See, e.g., J. E. B. v. Alabama ex rel. T. B., 511 U.S. 127, 137, n. 8. Moreover, the immediate choice he confronted comports with the reality of the jury selection process. Challenges for cause and rulings upon them are fast paced, made on the spot and under pressure. Counsel as well as court in that process must be prepared promptly to decide, often between shades of gray. Pp. 9—11.

    (e)  Martinez-Salazar and his codefendant were accorded the exact number of peremptory challenges that federal law allowed; he cannot tenably assert any violation of his Fifth Amendment due process right. See Ross, 487 U.S., at 91. P. 12.
146 F.3d 653, reversed.

    Ginsburg, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Stevens, O’Connor, Souter, Thomas, and Breyer, JJ., joined. Souter, J., filed a concurring opinion. Scalia, J., filed an opinion concurring in the judgment, in which Kennedy, J., joined..

Smith v. Robbins Anders is not the only method of protecting an indigent's right toappeal

Held:

    1.  The Anders procedure is only one method of satisfying the Constitution’s requirements for indigent criminal appeals; the States are free to adopt different procedures, so long as those procedures adequately safeguard a defendant’s right to appellate counsel. Pp. 6—13.

        (a)  In finding that the California procedure at issue in Anders–which permitted appellate counsel to withdraw upon filing a conclusory letter stating that the appeal had “no merit” and permitted the appellate court to affirm the conviction upon reaching the same conclusion following a review of the record–did not comport with fair procedure and lacked the equality that the Fourteenth Amendment requires, this Court placed the case within a line of precedent beginning with Griffin v. Illinois, 351 U.S. 12, and continuing with Douglas v. California, 372 U.S. 353, that imposed constitutional constraints on those States choosing to create appellate review. Comparing the California procedure to other procedures that this Court had found invalid and to statutory requirements in the federal courts governing appeals by indigents with appointed counsel, the Court concluded that the finding that the appeal had “no merit” was inadequate because it did not mean that the appeal was so lacking in prospects as to be frivolous. The Court, in a final, separate section, set out what would be an acceptable procedure for treating frivolous appeals. Pp. 6—9.

        (b)  The Ninth Circuit erred in finding that Anders’s final section, though unnecessary to the holding in that case, was obligatory upon the States. This Court has never so held; its precedents suggest otherwise; and the Ninth Circuit’s view runs contrary to this Court’s established practice. In McCoy v. Court of Appeals of Wis., Dist. 1, 486 U.S. 429, this Court rejected a challenge to Wisconsin’s variation on the Anders procedure, even though that variation, in at least one respect, provided less effective advocacy for an indigent. In Pennsylvania v. Finley, 481 U.S. 551, the Court explained that the Anders procedure is not an independent constitutional command, but rather a prophylactic framework; it did not say that this was the only framework that could adequately vindicate the right to appellate counsel announced in Douglas. Similarly, in Penson v. Ohio, 488 U.S. 75, the Court described Anders as simply erecting safeguards. Finally, any view of the procedure described in Anders’s last section that converted it from a suggestion into a straitjacket would contravene this Court’s established practice of allowing the States wide discretion, subject to the minimum requirements of the Fourteenth Amendment, to experiment with solutions to difficult policy problems. See e.g., Griffin, supra. The Court, because of its status as a court–particularly a court in a federal system–avoids imposing a single solution on the States from the top down and instead evaluates state procedures one at a time, while leaving “the more challenging task of crafting appropriate procedures … to the laboratory of the States … in the first instance,” Cruzan v. Director, Mo. Dept. of Health,497 U.S. 261 (O’Connor, J., concurring). Pp. 9—13.

    2.  California’s Wende procedure does not violate the Fourteenth Amendment. Pp. 13—22.

        (a)  The precise rationale for the Griffin and Douglas line of cases has never been explicitly stated, but this Court’s case law reveals that the Equal Protection and Due Process Clauses of the Fourteenth Amendment largely converge to require that a State’s procedure “afford adequate and effective appellate review to indigent defendants,” Griffin,supra, at 20 (plurality opinion). A State’s procedure provides such review so long as it reasonably ensures that an indigent’s appeal will be resolved in a way that is related to the merit of that appeal. In determining whether a particular procedure satisfies this standard, it is important to focus on the underlying goals that the procedure should serve–to ensure that those indigents whose appeals are not frivolous receive the counsel and merits brief required by Douglas, and also to enable the State to “protect itself so that frivolous appeals are not subsidized and public moneys not needlessly spent,” Griffin, supra, at 24 (Frankfurter, J., concurring in judgment). For an indigent’s right to counsel on direct appeal does not include the right to bring a frivolous appeal and, concomitantly, does not include the right to counsel for bringing a frivolous appeal. Anders’s obvious goal was to prevent this limitation on the right to appellate counsel from swallowing the right itself, and the Court does not retreat from that goal here. Pp. 14—16.

        (b)  The Wende procedure reasonably ensures that an indigent’s appeal will be resolved in a way that is related to the appeal’s merit. A comparison of that procedure to those evaluated in this Court’s chief cases demonstrates that it affords indigents the adequate and effective appellate review required by the Fourteenth Amendment. The Wende procedure is undoubtedly far better than those procedures the Court has found inadequate. A significant fact in finding the old California procedure inadequate in Anders, and also in finding inadequate the procedures that the Court reviewed in Eskridge v. Washington Bd. of Prison Terms and Paroles, 357 U.S. 214, and Lane v. Brown, 372 U.S. 477, two of the precedents on which the Anders Court relied, was that those procedures required only a determination that the defendant was unlikely to prevail on appeal, not that the appeal was frivolous. Wende, by contrast, requires both counsel and the court to find the appeal to be lacking in arguable issues, i.e., frivolous. An additional problem with the old California procedure was that it apparently permitted an appellate court to allow counsel to withdraw and then decide the appeal without appointing new counsel. Such a procedure was struck down in Penson v. Ohio,488 U.S. 75, because it permitted a basic violation of the Douglas right to have counsel until a case is determined to be frivolous and to receive a merits brief for a nonfrivolous appeal. Under Wende, by contrast, Douglas violations do not occur, both because counsel does not move to withdraw and because the court orders briefing if it finds arguable issues. The procedure disapproved in Anders also only required counsel to file a one-paragraph “bare conclusion” that the appeal had no merit, while Wende requires that counsel provide a summary of the case’s procedural and factual history, with citations of the record, in order to ensure that a trained legal eye has searched the record for arguable issues and to assist the reviewing court in its own evaluation. Finally, by providing at least two tiers of review, the Wende procedure avoids the additional flaw, found in the Eskridge, Lane, and Douglas procedures, of having only one such tier. Pp. 16—19.

        (c)  The Wende procedure is also at least comparable to those procedures the Court has approved. By neither requiring the Wende brief to raise legal issues nor requiring counsel to explicitly describe the case as frivolous, California has made a good-faith effort to mitigate one of the problems that critics have found with Anders, namely, the requirement that counsel violate his ethical duty as an officer of the court (by presenting frivolous arguments) as well as his duty to further his client’s interests (by characterizing the client’s claims as frivolous). Wende also attempts to resolve another Anders problem–that it apparently adopts gradations of frivolity and uses two different meanings for the phrase “arguable issue”–by drawing the line at frivolity and by defining arguable issues as those that are not frivolous. Finally, the Wende procedure appears to be, in some ways, better than the one approved in McCoy, and in other ways, worse. On balance, the Court cannot say that the latter, assuming arguendo that they outweigh the former, do so sufficiently to make the Wende procedure unconstitutional, and the Court’s purpose under the Constitution is not to resolve such arguments. The Court addresses not what is prudent or appropriate, but what is constitutionally compelled. United States v. Cronic,466 U.S. 648, 665, n. 38. It is enough to say that the Wende procedure, like the Anders and McCoy procedures, and unlike the ones in, e.g., Douglas and Penson, affords adequate and effective appellate review for criminal indigents. Pp. 19—22.

    3.  This case is remanded for the Ninth Circuit to evaluate Robbins’s ineffective-assistance claim. It may be that his appeal was not frivolous and that he was thus entitled to a merits brief. Both the District Court and the Ninth Circuit found that there were two arguable issues on direct appeal, but it is unclear how they used the phrase “arguable issues.” It is therefore necessary to clarify how strong those issues are. The proper standard for evaluating Robbins’s claim on remand is that enunciated in Strickland v. Washington, 466 U.S. 668: He must first show that his counsel was objectively unreasonable, id., at 687—691, in failing to find arguable issues to appeal, and, if Robbins succeeds in such a showing, he then has the burden of demonstrating prejudice, id., at 694. He must satisfy both prongs of the Strickland test to prevail, for his claim does not warrant a presumption of prejudice. He has received appellate counsel who has complied with a valid state procedure for determining whether his appeal is frivolous, and the State has not left him without counsel on appeal. Thus, it is presumed that the result of the proceedings is reliable, and Robbins must prove the presumption incorrect. Further, his claim does not fall within any of the three categories of cases in which prejudice is presumed, for it does not involve the complete denial of counsel on appeal, state interference with counsel’s assistance, or an actual conflict of interest on his counsel’s part. Id., at 692, 694. Pp. 22—27.
152 F.3d 1062, reversed and remanded.

    Thomas, J., delivered the opinion of the Court, in which Rehnquist, C. J., and O’Connor, Scalia, and Kennedy, JJ., joined. Stevens, J., filed a dissenting opinion, in which Ginsburg, J., joined. Souter, J., filed a dissenting opinion, in which Stevens, Ginsburg, and Breyer, JJ., joined.

A

With regard to the facial constitutionality of the aggravators used by the trial court, Medlock's challenges to Oklahoma's "heinous, atrocious, or cruel" and "continuing threat" aggravators are meritless. To be acceptable under the Eighth Amendment, the aggravating circumstance must furnish a sentencer with a principled means of guiding its discretion. SeeMaynard v. Cartwright, 486 U.S. 356, 361-64 (1988). Our Circuit has repeatedly upheld the facial constitutionality of these aggravators as "narrowed" by the State of Oklahoma, and we are bound by that body of precedent. See, e.g., Nguyen v. Reynolds, 131 F.3d 1340, 1352-54 (10th Cir. 1997); Hatch v. State, 58 F.3d 1447, 1468-69 (10th Cir. 1995).

B

With respect to the evidence used to prove the aggravators, Medlock contends that the Oklahoma court unconstitutionally relied on duplicative and cumulative sentencing factors. We disagree. "[D]ouble counting of aggravating factors, especially under a weighing scheme, has a tendency to skew the weighing process and creates the risk that the death sentence will be imposed arbitrarily and thus, unconstitutionally." United States v. McCullah, 76 F.3d 1087, 1111 (10th Cir. 1996).⁽²⁾

Contrary to Medlock's contention, these aggravating circumstances are not duplicative. In Cooks v. Ward, 165 F.3d 1283, 1289 (10th Cir. 1998) (quoting McCullah, 76 F.3d at 1087, 1111-12), cert. denied, 1999 WL 319436 (U.S. Oct. 4, 1999) (No. 98-9420), we explained that, to overlap impermissibly, one aggravating circumstance must "'necessarily subsume'" another. It is not impermissible for "certain evidence [to be] relevant to both aggravators." Id. Thus, Medlock is incorrect that use of evidence of his criminal record to find both the "continuing threat to society" and "heinous, atrocious, or cruel" aggravating circumstances renders those aggravators duplicative. Cf.McCullah, 76 F.3d at 1111-12. The aggravators do not "necessarily subsume" one another under McCullah: The "continuing threat" aggravator goes to Medlock's future dangerousness, while the "heinous, atrocious, or cruel" aggravator goes to the nature of Medlock's crime. The former involves future conduct; the latter involves the nature of the act for which Medlock was convicted. Under these circumstances the elements of one aggravator do not necessarily subsume those of the other.

C

As support for the aggravating circumstance of "continuing threat to society," the Oklahoma district court relied on Medlock's statement to the police that he feared hurting someone in the future. Medlock argues that the court's reliance on this potentially mitigating evidence rendered the aggravating circumstance unconstitutional by violating the requirement "that the sentencer in capital cases must be permitted to consider any relevant mitigating factor." Eddings v. Oklahoma, 455 U.S. 104, 112 (1982). On direct appeal, the Oklahoma Court of Criminal Appeals held that "Medlock's statement that he feared he would hurt someone in the future should not have been relied upon to find continuing threat." Medlock v. State, 887 P.2d at 1349. Rather, it held the statement "demonstrates Medlock's willingness and ability to remove himself from society to minimize his threat to society" and thereby was not permissible support for the aggravator. Id. The court nonetheless sustained the finding of the aggravator based on evidence of the callousness of Medlock's crime and his prior convictions for arson and burglary. See id.

It is well established that "the fundamental respect for humanity underlying the Eighth Amendment . . . requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death." Eddings, 455 U.S. at 112 (quoting Woodson v. North Carolina, 428 U.S. 280, 304 (1976)) (internal quotations omitted); seeLockett v. Ohio, 438 U.S. 586 (1973). The Lockett principle prohibits a state from excluding from the sentencer's consideration, and prohibits the sentencer itself from refusing to consider, "any relevant mitigating evidence." Eddings, 455 U.S. at 114.

The sentencing court in Medlock's case did not indicate that it was excluding from consideration the mitigating effect of Medlock's expressed desire to minimize his threat to society, which would have contravened Lockett and Eddings. The fact that the court may have relied on his statement as aggravating evidence does not necessarily render its sentence constitutionally invalid. SeeJohnson v. Texas, 509 U.S. 350, 368 (1993) (holding that "the fact that a juror might view [particular evidence] as aggravating, as opposed to mitigating, does not mean that the rule of Lockett is violated" (citing Graham v. Collins, 506 U.S. 461, 475-76 (1993))); see also Penry v. Lynaugh, 492 U.S. 302, 324 (1989) (recognizing that mitigating evidence can function as a "two-edged sword" during sentencing, in effect operating as both mitigating and aggravating evidence); Eddings, 455 U.S. at 114-115 ("The sentencer, and the Court of Criminal Appeals on review, may determine the weight to be given relevant mitigating evidence.").

While the Oklahoma Court of Criminal Appeals found this evidence improper for supporting the continuing threat aggravator, the court nevertheless upheld the sentencing court's finding of that aggravator. Contrary to Medlock's assertion, the Court of Criminal Appeals was under no obligation, as a matter of constitutional law, to reweigh the aggravating and mitigating factors.⁽³⁾ The sentencer's finding of the continuing threat aggravating circumstance was upheld by the Oklahoma Court of Criminal Appeals; that court simply disapproved of one proffered reason for the finding, which in itself does not violate Lockett. SeeJohnson, 509 U.S. at 368.⁽⁴⁾

Apart from his facial challenge to the continuing threat aggravator and his claim that consideration of mitigating evidence in support of the aggravator violated Lockett, Medlock does not otherwise challenge on appeal the sufficiency of the evidence to support the district court's finding of the continuing threat aggravator.

D

Medlock challenges the "heinous, atrocious, or cruel" aggravator not only facially but also as applied. He argues that the State presented insufficient evidence that Medlock's conduct fell within Oklahoma's "narrowed," and therefore constitutional, construction of the aggravator.

In Maynard v. Cartwright, 486 U.S. 356, 363-64 (1988), the Supreme Court determined that Oklahoma's "especially heinous, atrocious, or cruel" aggravator was vague and overbroad unless construed sufficiently narrowly. Oklahoma has since adopted a constitutional narrowing construction of the aggravator, which provides that the victim's murder--to be deemed "especially heinous, atrocious, or cruel"--must have been "preceded by torture or serious physical abuse." Turrentine v. State, 965 P.2d 955, 976-77 (Okla. Crim. App. 1998); see also Hatch, 58 F.3d at 1468-69 (holding the narrowing construction to be constitutional). Torture includes "the infliction of either great physical anguish or extreme mental cruelty." Turrentine, 965 P.2d at 976 (citing Berget v. State, 824 P.2d 364, 373 (Okla. Crim. App. 1991)). With respect to the physical anguish branch of the Oklahoma test, "[a]bsent evidence of conscious physical suffering by the victim prior to death, the required torture or serious physical abuse standard is not met." Cheney v. State, 909 P.2d 74, 80 (Okla. Crim. App. 1995) (quoting Battenfield v. State, 816 P.2d 555, 565 (Okla. Crim. App. 1991)) (internal quotations omitted).

We have held that the "heinous, atrocious, or cruel" aggravating circumstance as narrowed by the Oklahoma courts after Maynard to require torture or serious physical abuse characterized by conscious suffering can provide a principled narrowing of the class of those eligible for death. See, e.g., Hatch, 58 F.3d at 1468-69.⁽⁵⁾ Medlock fails to demonstrate that Oklahoma has applied its narrowing construction in an unconstitutional manner.

Medlock argues that the evidence--even examined in the light most favorable to the prosecution--is insufficient to support the narrowed "heinous, atrocious, or cruel" aggravator because evidence regarding conscious suffering by the victim is absent. See Turrentine, 965 P.2d at 976-77 (finding inconsistent evidence failed to support the aggravator because it was unclear whether the victims experienced conscious suffering). Whether we treat this challenge as a legal determination under 28 U.S.C. § 2254(d)(1), or one of fact under 28 U.S.C. § 2254(d)(2), the result is the same. See Moore v. Gibson, 195 F.3d 1152, 1177 (10th Cir. 1999).⁽⁶⁾

Medlock fails to demonstrate that a rational factfinder could not conclude that his crime, occurring in several gruesome phases, involved torture or serious physical abuse characterized by conscious suffering. The evidence, including Medlock's confessions, suggests that he repeatedly grabbed his victim by the arm, wrestled with her, struck her in the face, threw her onto his bed, and covered her mouth when she began screaming. SeeMedlock v. State, 887 P.2d at 1338, 1348. He choked her until she temporarily passed out, then dragged her to the toilet and stuck her head into the bowl while she was conscious and gasping for air, keeping her there for ten minutes until she passed out again. See id. at 1338. When he noticed she was still breathing and alive, he used a steak knife to stab her in the back of the neck and, when that knife bent, took a hunting knife and stabbed her in the back of the neck again until she died. Seeid.
 

This body of evidence is sufficient to fall within the narrowed scope of the "especially heinous, atrocious, or cruel" aggravator. Taking the facts together, we conclude it was neither "an unreasonable determination of the facts in light of the evidence presented" nor an "unreasonable application of clearly established federal law" for the sentencer to conclude that conscious suffering was present. We also recognize that "the AEDPA increases the deference to be paid by the federal courts to the state court's factual findings and legal determinations." Houchin v. Zavaras, 107 F.3d 1465, 1470 (10th Cir. 1997). In light of the foregoing, we conclude there was sufficient evidence of conscious suffering to preserve the constitutionality of the Oklahoma court's application of the "heinous, atrocious, or cruel" aggravating circumstance

     Johnson argues that there is insufficient evidence that Brunst was a victim of homicide at all; that even if there is evidence that he killed Brunst, there is insufficient evidence that the killing was a result of prior calculation and design; that there is insufficient evidence that Brunst's death was connected with rape; and that there is insufficient evidence that Brunst's death was connected with kidnapping. Although the Ohio Supreme Court found reversible error in Johnson's trial, and even though that court several times referred to the evidence as "weak" or as "not overwhelming," it stopped short of holding that the evidence was insufficient to support a conviction. See State v. Johnson, 643 N.E. 2d 1098 (Ohio 1994).

     When a defendant challenges the sufficiency of the evidence to support a conviction, we inquire "whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Bagby v. Sowders, 894 F.2d 792, 794 (6th Cir. 1990) (en banc); Jackson v. Virginia, 443 U.S. 307, 319 (1979).

A. Sufficiency of the Evidence re: Murder

     "No person shall purposely cause the death of another . . . ." Ohio Rev. Code Ann. § 2903.02 ("Murder"). Viewing the evidence most favorably to the prosecution, there is no doubt that a rational jury could have found that Johnson killed Brunst. Johnson is the last person known to have seen Brunst alive. He was angry with her just after he saw her. He sat in his running vehicle rather than enter his apartment when he drove home. A neighbor saw him leaving home at 4:30 a.m. the morning Brunst disappeared. Brunst's nude body was found near an off-road trail Johnson had found days before Brunst disappeared. A piece of carpet from Johnson's Jeep was found near the body. Johnson, who had a perfect work attendance record, did not show up for work the morning after Brunst disappeared, similar to his behavior after the Hutchinson murder. Johnson did not visit his aunt in Diamond that weekend, as he had done every weekend for a year. Johnson sold the vehicle that the piece of carpet was taken from. Johnson told his landlady he was going to move out and asked to have his security deposit returned. He began to behave erratically and suspiciously in general. He confessed to the murder several times. He referred to his sister in the past tense before she was known to be dead. He sustained eye contact with detectives until they asked about Brunst. Although circumstantial, this evidence is substantial. "Circumstantial evidence alone is sufficient to support a conviction, and '[i]t is not necessary for the evidence to exclude every reasonable hypothesis except that of guilt.'" United States v. Reed, 167 F.3d 984, 992 (6th Cir. 1999) (quoting United States v. Beddow, 957 F.2d 1330, 1334 (6th Cir. 1992)). The evidence presented against Johnson is certainly sufficient for a rational jury to find beyond a reasonable doubt that he killed Brunst.

B.Sufficiency of the Evidence re: Aggravated Murder

     "No person shall purposely, and with prior calculation and design, cause the death of another . . . ." Ohio Rev. Code Ann. § 2903.01 ("Aggravated murder; specific intent to cause death").(1) We held above that a rational jury could, on the evidence in the record, find beyond a reasonable doubt that Johnson killed Brunst. Unless that jury were to find that Johnson killed Brunst on his first visit, while Westberg was waiting outside, it must necessarily find that he returned to do it. While it is possible that he could have returned with pure motives and, once he was there, killed Brunst in a moment of passion, (1) this does not seem likely, and (2) even if it is possible, a rational jury might find, on the evidence presented, that he returned later to kill her after calculating and forming a plan.

     Johnson was mad at Brunst when he and Westberg left her apartment at approximately 1:30 a.m. He displayed no injuries, and there was no sign of a struggle at Brunst's apartment. These facts suggest that there was no "triggering event" to ignite Johnson's passions after he returned. If Brunst was alive when Johnson left her apartment at approximately 1:30 a.m., and he killed her later, it was most likely with "prior calculation and design."

     On the evidence presented at trial, a reasonable jury could believe that Brunst was alive when Johnson left at 1:30 a.m., and that he returned intending to kill her. Therefore, the evidence in the record, viewed most favorably to the prosecution, could lead a rational jury to conclude that, beyond a reasonable doubt, Johnson killed Brunst "with prior calculation and design." There was sufficient evidence to convict him of aggravated murder.  . . .

After we dismissed his § 1983 appeal and remanded that matter to the district court, Mr. Switzer filed a civil action pursuant to the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1961-1968. Switzer v. Coan, No. 99-1705 (D. Colo. filed Aug. 27, 1999). He named as defendants all the active and senior judges of this court, two district court judges of the federal District Court for the District of Colorado, a district court magistrate judge, the U.S. Attorney for Colorado, the Clerk of the Tenth Circuit, and the Tenth Circuit's Chief Staff Counsel. In the complaint, Mr. Switzer alleges that the defendants to the RICO action conspired to obstruct justice. He theorizes that because he is a pro se litigant, "Article III judges" did not read the filings in his § 1983 and § 2254 actions. In addition, he claims that the RICO defendants did not read the orders and judgments issued in his pro se case because such documents are routinely authored by law clerks and staff attorneys and are signed by judges without review.  . . .  We hold that under our duty to sit and the rule of necessity, a lawsuit brought indiscriminately against all the active and senior judges on the Tenth Circuit Court of Appeals does not operate automatically to render the court unable to hear and decide an appeal brought by the plaintiff/petitioner. Our holding applies both to appeals in which the judges are named and to associated or subsequent appeals in which the plaintiff/petitioner is a party but the judges are not named. Thus, neither this court nor this panel is disqualified from hearing and resolving this appeal.

 
Reyes v. Keane
90 F.3d 676, 679 (2nd Cir. 1996)
The court refused to apply the new limitations period to a case which had been filed more that one year after exhaustion of state remedies but prior to the effective date of the act. The panel explicitly declined to determine whether potential petitioners had a year from the act's effective date to file "or only a reasonable time thereafter."

Samuel v. Duncan
1996 WL 413632 (9th Cir. July 22, 1996) (unpublished), cert. denied, 117 S.Ct. 1338 (1997)
The court noted that the action was "commenced long after that year [provided for in the new statute of limitations] had elapsed. However, the government has not raised the issue, so we need not consider it because the statute of limitations is not jurisdictional and can be waived. . . . At any rate, it is highly doubtful that the new statute of limitations could be applied retroactively to cut off an action that had been filed before the new statute was adopted." (internal citations omitted).

Dubois v. Angelone
No. 96-10 (4th Cir. August 27, 1996)
The court reversed the district court’s refusal to appoint counsel and stay petitioner's execution. The district court found that Virginia was an "opt-in" jurisdiction and that any petition for writ of habeas corpus would be time barred pursuant to the 180 day limitations period. The court of appeals concluded that "divesting Dubois of the opportunity he possessed prior to the implementation of the new Act to petition a federal court to review the constitutionality of his state death sentence impairs a right he possessed under prior law, see 28 U.S.C.A. § 2254; thus, application of Chapter 154 in this way would constitute a retroactive application." Finding no clear congressional intent to time bar such applications, the court concluded that "Chapter 154 may not be construed to have foreclosed Dubois from filing." Then assuming without deciding that Virginia was an "opt-in" state, the court determined that the limitations period ran from April 24, 1996 and thus the petition was not time barred. The district court abused its discretion in denying a stay and appointment of counsel.

Samuel v. Duncan
92 F.3d 1194 (9th Cir. 1996).
The court stated: "[I]t is highly doubtful that the new statute of limitations could be applied retroactively to cut off an action that had been filed before the new statute was adopted." (internal citations omitted)

Peterson v. Demskie
107 F.3d 92, 93 (2nd Cir. 1997)
The court granted a COA and reversed the district court’s dismissal of petitioner’s habeas petition as untimely under § 2244(d). Petitioner’s conviction had been final for about twenty years, but he filed his habeas petition seventy two days after passage of the AEDPA. Referring to Lindh, the court saw "no need to accord a full year" in which to file for a petitioner who has had several years to consider filing a habeas petition, but "[a]t the same time, [the court did] not think that the alternative of a ‘reasonable time’ should be applied with undue rigor." The court concluded that petitioner had filed within a reasonable time.

United States v. Simmonds
111 F.3d 737, 745-46 (10th Cir. 1997)
In this § 2255 case, the court held that applying the one year limitations period to petitioner "without first affording him a reasonable time to bring his claim [would be] impermissibly retroactive." The court went on to conclude that the one year period set forth in the statute is a "reasonable time" to allow for the filing of petitions, and held that "prisoners whose convictions became final on or before April 24, 1996 must file their § 2255 motions before April 24, 1997."
Calderon v. U.S. Dist. Court for Central Dist. of Cal.
128 F.3d 1283, 1289 (9th Cir. 1997), cert. denied, 118 S.Ct. 899 (1998)
In this mandamus action, the Ninth Circuit stated that "[e]very relevant signal -- from the Act’s plain language, to its legislative history, to its structure -- points in the same direction: Section 101's one-year timing provision is a statute of limitations subject to equitable tolling, not a jurisdictional bar." Extraordinary circumstances existed in this case where "lead counsel . . . diligently pursued preparation of [the] petition [but] withdrew after accepting employment in another state, and much of the work product he left behind was not usable by replacement counsel -- a turn of events over which [petitioner] had no control." The court also held that the one year time period "did not begin to run against any state prisoner prior to the statute’s date of enactment," and therefore "[n]o petition filed on or before April 23, 1997 . . . may be dismissed for failure to comply with section 101's time limit."

O’Connor v. United States
133 F.3d 548, 550 (7th Cir. 1998)
The court vacated the district court’s denial of petitioner’s § 2255 motion on the ground that it was improperly filed during the pendancy of petitioner’s appeal of the denial of his motion for a new trial. The Seventh Circuit agreed with petitioner that he had to file the § 2255 motion when he did because the statute of limitations was about to run out, and the appeal of the denial of his new trial motion would not toll the statute. Thus, the court concluded that, in light of the AEDPA, when a district court receives a new trial motion during the year after which a conviction becomes final, it should ask the defendant whether he intends to file a § 2255 motion. If the defendant answers affirmatively, the court should defer ruling on the new trial motion until it has the opportunity to consider all potential issues.

Burns v. Morton
134 F.3d 109, 112-113 (3rd Cir. 1998)
The court held that "habeas petitions filed on or before April 23, 1997, may not be dismissed for failure to comply with § 2244(d)(1)’s time limit." The court also adopted the rule of Houston v. Lack, 487 U.S. 266 (1988), and held that "a pro se prisoner’s habeas petition is deemed filed at the moment he delivers it to prison officials for mailing to the district court." Although these issues arose in the context of a §2254 petition, the court expressly extended both holdings to §2255 proceedings as well.

Lovasz v. Vaughn
134 F.3d 146, 148 (3rd Cir. 1998)
The Third Circuit held that "‘a properly filed application’ [for purposes of §2244(d)(2)] is one submitted according to the state’s procedural requirements, such as the rules governing the time and place of filing." The court explained that, "[i]f a petitioner complies with these requirements, or other procedural requirements the state imposes, his petition, even a second or successive petition, is ‘a properly filed application’ . . . While we recognize that the Pennsylvania Supreme Court has announced strict rules regarding the granting of second and subsequent PCRA petitions, . . ., Pennsylvania allows for the filing of second or subsequent PCRA petitions, . . . , and courts occasionally grant relief in such proceedings . . ." The court also stated that "district courts should not inquire into [the] merits" of a state post-conviction petition when determining whether it is properly filed for tolling purposes, reasoning that, "[a]fter all, Congress chose the phrase ‘a properly filed application,’ one into which we do not read any requirement that the application be non-frivolous."

United States v. Boone
1998 WL 77884 at *1 (4th Cir. Feb. 25, 1998) (unpublished)
Citing the Third Circuit’s recent decision in Burns v. Morton, 134 F.3d 109 (3rd Cir. 1998), the court held that petitioner’s pro se addendum to his previously filed successive § 2255 motion was deemed filed "when [he] handed it to prison officials for mailing--before the AEDPA’s effective date."

United States v. Flores
135 F.3d 1000, 1006 (5th Cir. 1998)
The court held that "petitioners attacking convictions or sentences which became final prior to the AEDPA’s effective date will be accorded the one-year post-AEDPA period, commencing on the Act’s effective date, within which to file for section 2255 relief." In footnote 20, the court recognized that "[i]t is unclear whether [the date a conviction "becomes final"] should be construed as the date that judgment issues from the highest court to hear the case, or whether it should be interpreted as the expiration of the time for seeking any further review," but left resolution of this question for another day.

United States v. Hutchinson
1998 WL 94600 at *2 (10th Cir. March 5, 1998) (unpublished), , cert. denied, 119 S.Ct. 387 (1998)
The court rejected petitioners’ contention that the AEDPA’s date of enactment (April 24, 1996) should not be counted in calculating the last day of the one year statute of limitations period, stating "[o]ur opinion in [United States v.] Simmonds, [111 F.3d 737 (10th Cir. 1997)] which was issued before appellants filed their §2255 motions in district court, required appellants to file their motions before April 24, 1997, i.e., on or before April 23, 1997." Thus, because petitioners filed on April 24, 1997 -- one day late -- the Tenth Circuit affirmed the district court’s sua sponte dismissal of their petitions as untimely.

Miller v. Marr
141 F.3d 976, 978 (10th Cir. 1998), cert. denied, 119 S.Ct. 210 (1998)
Citing Calderon v. United States District Court, 128 F.3d 1283 (9th Cir. 1997), the court stated that "§2244(d) [the statute of limitations] is not jurisdictional and as a limitation may be subject to equitable tolling."

Miller v. New Jersey State Department of Corrections
145 F.3d 616, 617-18 (3rd Cir. 1998)
The court held that the one year limitations period for filing petitions under §2254 is a statute of limitations which is subject to equitable tolling. Remanding for consideration of the equitable tolling question in this case, the court of appeals instructed that "equitable tolling is proper only when the ‘principles of equity would make [the] rigid application [of a limitation period] unfair,’" and that, "[g]enerally, this will occur when the petitioner has ‘in some extraordinary way . . . been prevented from asserting his or her rights.’"

Rosa v. Senkowski
148 F.3d 134, 135-36 (2nd Cir. 1998)
The court stated that "In Ross v. Artuz, No. 97-2789 (2nd Cir. June 24, 1998); Joseph v. McGinnis, No. 97-2656 (2nd Cir. June 24, 1998) (per curiam); and Mickens v. United States, No. 97-2734 (2nd Cir. June 24, 1998), argued in tandem with the present case and decided today, we have ruled that AEDPA's limitations period does not bar a § 2254 petition, or a motion pursuant to 28 U.S.C.A. § 2255 (West 1994 & Supp.1998), filed within one year after the effective date of AEDPA." Thus, while the district court concluded that the petition, filed April 8, 1997, was untimely but could not be dismissed because doing so would violate the Suspension Clause, the Second Circuit simply held that the petition was timely without reaching the Suspension Clause issue.

Mickens v. United States
148 F.3d 145, 148 (2nd Cir. 1998)
The panel held that "motions filed pursuant to §2255 within one year after the effective date of AEDPA are not time-barred under the Act." A companion decision, Ross v. Artuz, No. 97-2789, established an identical grace period for §2254 petitions. The court based this decision on the "lack of any reason for a prisoner to have believed that, Congress having provided a one-year limitations period, the requisite grace period would be less than one-year," and on the fact that the "lack of a clear and uniform grace period has led to diversity in district court decisions among petitioners in seemingly similar circumstances." The court concluded by stating that, under its grace period, "motions pursuant to §2255 [and, under Ross, §2254 petitions] are not barred by the statute of limitations . . . if filed on or before April 24, 1997."

Spotville v. Cain
149 F.3d 374, 378 (5th Cir. 1998) (per curiam)
The Fifth Circuit held that "the habeas corpus petition of a pro se prisoner litigant is filed for purposes of determining the applicability of the AEDPA at the time the petitioner tenders the petition to prison officials for mailing," and not, as the district court erroneously concluded, on the date the petitioner pays the filing fee following denial of a request to proceed in forma pauperis.

Brown v. Angelone
150 F.3d 370, 374-75 (4th Cir. 1998)
The Fourth Circuit panel held that "a prisoner whose statutory right to seek federal habeas relief accrued prior to the AEDPA must receive a reasonable period of time after the statute’s effective date to file his petition." The court went on to conclude that petitioners whose convictions became final prior to enactment of the AEDPA are entitled to one full year to file their petitions. In reaching its decision, the court observed that the writ of habeas corpus is "perhaps the most important remedy in our criminal system and ‘the best and only sufficient defence of personal freedom.’" (internal citations omitted). The court also remarked that "[f]air notice obviously carries great import when limiting the time afforded a prisoner to seek a writ of habeas corpus, the ‘fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action.’"

Hoggro v. Boone
150 F.3d 1223, 1227 n.4 (10th Cir. 1998)
The court indicated that the statute of limitations was not tolled during the time in which petitioner appealed from the denial of state post-conviction relief "because that appeal was untimely," and §2244(d)(2) only allows tolling during the pendency of a "‘properly filed’" post-conviction application.

Ross v. Artuz
1998 WL 384840 at *6-7 (2nd Cir. June 24, 1998) (unpublished)
The Second Circuit held that, notwithstanding the "reasonable time" dictum from Peterson v. Demskie, 107 F.3d 92 (2nd Cir. 1997), upon which district courts within the circuit had been relying to dismiss numerous §2254 and §2255 petitions as untimely, "prisoners should have been accorded a period of one year after the effective date of AEDPA in which to file a first §2254 petition or a first §2255 motion." The court reasoned as follows:

a grace period of less than one year for prisoners whose convictions had become final prior to the effective date of AEDPA would not reasonably have been anticipated by prisoners; Peterson 's suggestion of less than a one-year period was not announced in time to give prisoners an adequate opportunity to file their claims in a "reasonable time" less than one year; and the "reasonable time" formulation was neither sufficiently clear to prisoners in light of the prior exhaustion requirements nor sufficiently enlightening to the district courts to ensure uniform application.

The court also noted that "a grace period of one year means that petitions filed pursuant to §2254 and motion filed pursuant to §2255 are not barred by the statute of limitations established by AEDPA if filed on or before April 24, 1997."

Goodman v. United States
151 F.3d 1335, 1337 (11th Cir. 1998) (per curiam)
The court held that the one year limitations period does not apply retroactively to federal prisoners whose convictions became final before passage of the AEDPA, and that such prisoners had one year -- until April 23, 1997 -- to file their §2255 applications.
 
 

Flanagan v. Johnson
154 F.3d 196 (5th Cir. 1998)

The Fifth Circuit held that Federal Rule of Civil Procedure 6(a) "applies to the computation of the one year limitation period in §2244(d) of AEDPA. By extension, when computing the one year time period applicable to petitions raising claims that would otherwise be time-barred as of the [sic] April 24, 1998, that date must be excluded from the computation and petitions filed on or before April 24, 1997 are timely." 154 F.3d at 202.  Additionally, although petitioner did not file a cert petition in the Supreme Court following affirmance on direct appeal, the court indicated that petitioner’s conviction became final for purposes of §2244(d) at the expiration of the ninety days in which he could have done so. 154 F.3d at 197.
 
 
 
 

Sierra v. Evans
1998 WL 712578 at *2 (10th Cir. Oct. 13, 1998) (unpublished)

The court reversed the district court’s order dismissing petitioner’s §2254 petition as untimely. In reaching this decision, the court of appeals agreed with petitioner that information involving admissions by a DEA chemist that she had lied about the results of tests she claimed to have performed in a number of cases could not have been discovered through the exercise of due diligence prior to the date on which this information appeared in newspapers. The court therefore concluded that the limitations period with respect to petitioner’s claim or claims arising out of this information was extended pursuant to §2244(d)(1)(D), and that petitioner could not, as the district court reasoned, reasonably have been expected to have discovered the chemist’s misconduct through discovery or cross-examination at trial.

Gendron v. United States
154 F.3d 672, 674 (7th Cir. 1998) (per curiam), cert. denied sub nom. Ahitow v. Glass, ___S.Ct.___, 1999 WL 160271 (May 17, 1999)
The Seventh Circuit consolidated the appeals of a §2255 and a §2254 petitioner in order to address the "question of when a judgment is considered to be final" for purposes of the new limitations periods. After observing that §2255 starts the limitations period from "‘the date on which the judgment of conviction becomes final,’" while §2244(d)(1)(A), which applies to §2254 petitioners, starts the limitations period from "‘the date on which the judgment became final by the conclusion of direct review or the expiration of time for seeking such review,’" the court reasoned and held as follows:

In § 2244, Congress expressly included the period for seeking review whether or not a petitioner elected to avail himself of the opportunity. Because similar language is absent in § 2255, we conclude that Congress intended to treat the period of limitations differently under the two sections. Accordingly, we hold that federal prisoners who decide not to seek certiorari with the Supreme Court will have the period of limitations begin to run on the date this court issues the mandate in their direct criminal appeal. Any other reading of the statutes would render the additional language in §2244 meaningless, a result we must avoid.

Turning to the §2254 appeal, the court found that petitioner’s direct appeal became final when his time to seek leave to appeal the Illinois Appellate Court’s decision to the Illinois Supreme Court expired. However, in footnote 2 the court expressly reserved the question "whether §2244's ‘direct review’ includes the time a state prisoner, who files for leave to appeal to a state supreme court, is given to seek certiorari with the United States Supreme Court." As to the timeliness of the §2254 petition in this case, the court held that, because §2244(d) did not begin to run against anyone until April 24, 1996, the district court erred in counting against petitioner the period between the end of direct review in 1993 and the start of state post-conviction proceedings in 1994, and the petition was therefore timely filed.

Davis v. Johnson
158 F.3d 806, 811-812 (5th Cir. 1998), cert. denied, 119 S.Ct. 1474 (1999)
The Fifth Circuit held that "the one-year period of limitations in §2244(d)(1) of AEDPA is to be construed as a statute of limitations, and not a jurisdictional bar. As such, in rare and exceptional circumstances, it can be equitably tolled." The court "assume[d] without deciding, . . ., that the circumstances of this case justify equitably tolling the one-year statute of limitations, . . ." See footnote 2. The court did not explain this assumption other than to state that it was "persuaded that reasonable juries [sic] might differ with regard to equitably tolling the statute of limitations based on the extraordinary circumstances in this case." Presumably, the court was referring to petitioner’s contention that his federal habeas counsel (appointed to replace previous counsel who had become incapacitated) were not notified of their appointment until approximately one year after it occurred, by which time the limitations period had run.
Additionally, prior to dismissing the petition as time barred, the district court had granted petitioner several extensions of time in which to file his petition, which extended the time well beyond the one-year deadline.

Wilcox v. Florida Dept. of Corrections
158 F.3d 1209, 1210 (11th Cir. 1998) (per curiam)
The Eleventh Circuit extended its holding in Goodman v. United States, 151 F.3d 1335 (11th Cir. 1998) (establishing one year grace period for filing §2255 motions following enactment of AEDPA), to §2254 petitions. Applying this decision, the court reversed the district court’s decision to dismiss petitioner’s §2254 petition as untimely because it was filed two months after passage of the Act but more than a year after petitioner’s conviction became final.

Smith v. Bowersox
159 F.3d 345, 347-348 (8th Cir. 1998), cert. denied, 119 S.Ct. 1133 (1999)
In this Missouri capital case, the state pursued an interlocutory appeal of the district court’s order allowing petitioner one year from the date on which the Supreme Court denied certiorari on direct appeal to file his federal habeas petition. The Eighth Circuit rejected the state’s argument that the phrase "conclusion of direct review" as used in §2244(d)(1)(A) refers to the conclusion of state court review, as opposed to time spent pursuing a writ of certiorari in the United States Supreme Court. The court explained its reasoning and held as follows:

Review of a state criminal conviction by the Supreme Court of the United States is considered direct review of the conviction. . . . Moreover, there is a well-established body of federal case law that interprets the phrase "final by the conclusion of direct review" to include an opportunity to seek certiorari. When Congress elects to use terminology that has become commonplace in court decisions in a particular field of law, the rules of statutory construction call for us to define the statute's terms in harmony with that accepted judicial meaning. . . . Thus, a chance to solicit review of constitutional issues before the United States Supreme Court, after the end of state court proceedings, properly falls within the meaning of "final by the conclusion of direct review."

We conclude that the running of the statute of limitations imposed by § 2244(d)(1)(A) is triggered by either (I) the conclusion of all direct criminal appeals in the state system, followed by either the completion or denial of certiorari proceedings before the United States Supreme Court; or (ii) if certiorari was not sought, then by the conclusion of all direct criminal appeals in the state system followed by the expiration of the time allotted for filing a petition for the writ.

(Internal citations omitted). Thus, the court affirmed the district court’s order establishing the due date for petitioner’s §2254 petition one year from the date on which the Supreme Court denied his petition for certiorari.

Fields v. Johnson
159 F.3d 914 (5th Cir. Oct. 28, 1998) (per curiam)
The court held that the previously recognized one year grace period for filing habeas petitions that would otherwise be barred where the petitioner’s conviction became final more than one year prior to passage of the AEDPA "is tolled pending the pursuit of state habeas relief, as per 28 U.S.C. §2244(d)(2)".

Cantu-Tzin v. Johnson
162 F.3d 295, 296-297 (5th Cir. 1998), cert. denied, 119 S.Ct. 847 (1999)
In this Texas case involving a death row inmate’s attempt to secure appointed counsel and a stay of execution in order to file a an arguably time-barred first federal habeas petition in advance of his December 3, 1998 execution date, the Fifth Circuit panel majority held as follows:

First, neither McFarland[ v. Scott, 512 U.S. 849 (1995)] nor [21 U.S.C.] §848(q)(4)(B) requires appointment of counsel for the wholly futile enterprise of addressing the merits of a time-barred habeas petition. Second, the court may appoint counsel to represent a death-row inmate for purposes of litigating the applicability of the limitations bar only, with sufficient time constraints to maintain the integrity of the limitation period. Third, where, as in this case, the facts that might be relevant to equitable tolling of limitations are undisputed and are wholly unfavorable to the petitioner, the court may deny a stay. We therefore deny the stay of execution.

Kiser v. Johnson
163 F.3d 326, 328-329 (5th Cir. 1999)
The Fifth Circuit held that the district court acted within its authority when it sua sponte raised the statute of limitations to bar petitioner’s habeas petition without requiring the state to answer. The court rejected petitioner’s contention that Rule 8(c) of the Federal Rules of Civil Procedure, which requires that a party raise affirmative defenses in a responsive pleading, should govern this issue pursuant to Rule 11 of the Rules Governing Section 2254 Cases. The court instead relied on Rule 4 of the Rules Governing Section 2254 Cases, which empowers district courts "to examine and dismiss frivolous habeas petitions prior to any answer or other pleading by the state." The court explained:

Were we to apply Fed.R.Civ.P. 8(c) to the facts of this case, the ability of the district court to weed out meritless habeas petitions would be substantially impaired. The statute of limitations defense plainly appeared on the face of Kiser's habeas petition based on its date of filing. Applying Rule 8(c) would force the district court to order an unnecessary answer in the face of a plainly applicable affirmative defense. Such a result would be inconsistent with the language and purpose of Rule 4. Therefore, we hold that the district court was within its authority under Rule 4 and Rule 11 of the Rules Governing Section 2254 Cases when it raised the AEDPA's statute of limitations defense sua sponte.

The court further observed that its holding "follow[s] a long line of precedent establishing the authority of courts to raise non-jurisdictional affirmative defenses sua sponte in habeas cases".

Calderon v. United States District Court (Kelly)
163 F.3d 530, 541-542 (9th Cir. 1998) (en banc), cert. denied, 119 S.Ct. 1377 (1999)
The en banc majority found petitioner eligible for equitable tolling on two grounds in this California capital case in which a panel of the Ninth Circuit earlier found petitioner’s first federal habeas petition time barred. First, the majority found that an order entered by the district court in 1995 staying the proceedings until a final determination as to petitioner’s competency could be made "prevented [petitioner’s] counsel from filing a habeas petition and, in itself, justifies equitable tolling." Second, observing that a petitioner’s statutory right to federal habeas counsel "contemplates effective communication between lawyer and client," the majority concluded that "[w]here, as here, there is a threshold showing of mental incompetency, a sufficient showing has been made for equitably tolling the statute of limitations".

Kapral v. United States
166 F.3d 565 (3rd Cir. 1999)
The Third Circuit held that "a judgment of conviction does not become ‘final’ within the meaning of §2255 until the Supreme Court affirms the conviction and sentence on the merits or denies a timely filed petition for certiorari. . . . In addition, if a defendant does not file a certiorari petition, the judgment of conviction does not become ‘final’ until the time for seeking certiorari review expires." 166 F.3d at 569. In so holding, the court rejected the district court’s rationale that, because the Supreme Court rarely grants certiorari to federal prisoners on direct appeal, and because fair appellate review is afforded prisoners by the courts of appeals, the time for seeking certiorari should not be included when determining a date of finality.

The court based its decision on several factors. First, looking to the dictionary definitions of "final," the court reasoned that "[i]t is the action of the Supreme Court in ruling on the certiorari petition that brings about closure on direct review and elevates the decision of the court of appeals to a level of finality that is ‘the last in place, order or time,’ ‘precludes further controversy on the questions passed upon,’ and is ‘a decision from which no appeal or writ of error can be taken.’" 166 F.3d at 570. Unlike the district court, the Third Circuit found that "[r]ecognizing that one is allowed 90 days to file a petition for certiorari does not mitigate the congressional objective of imposing time limits where none previously existed." 166 F.3d at 571; see also 166 F.3d at 573 ("We do not believe that the collateral review process will be slowed in any meaningful way if defendants are afforded 90 days to consult with counsel and to consider whether it would be appropriate to exercise their right to seek certiorari review"). Second, the court could discern "no reason to believe that Congress intended to adopt a definition of finality in §2255 that is inconsistent with the concept of finality under a Teague analysis. Under the Supreme Court’s Teague decisions, the court explained, finality is defined as either "the date the Supreme Court denies certiorari" or "the date the time for filing a timely petition for a writ of certiorari expires." 166 F.3d at 572 (citations omitted).

Additionally, the court expressly rejected the Seventh Circuit’s decision in Gendron v. United States, 154 F.3d 672 (7th Cir. 1998) (per curiam), which relied on the inference that differences in the language of §2244(d)(1)(A) and §2255 indicate Congress’ intent to treat the question of finality differently for state and federal prisoners. The inference drawn by the Seventh Circuit flows from §2244(d)(1)(A)’s "by the conclusion of direct review or the expiration of the time for seeking such review" language, and the absence of similar language in §2255's limitations provision. The Third Circuit declined to follow the Seventh Circuit’s reasoning because, in its view, the "analysis affords [in]adequate weight to the context of collateral proceedings," and because the Seventh Circuit did not consider "the wording of the limitations provision contained in Chapter 154 . . .." 166 F.3d at 573. While the Third Circuit found that the differences between §2244(d)(1)(A) and §2255 were "not sufficient" to warrant the conclusion that Congress intended different definitions of finality in §2254 and §2255 cases under Chapter 153, it did find additional support for its own conclusions in §2263's limitations provision. There, Congress prescribed a 180 day period commencing "after final State court affirmance . . . on direct review . . . ," and provided for tolling during the pendency of a petition for certiorari. From this, the court concluded that, "[h]ad Congress intended the limitations period to begin upon the conclusion of an appeal as of right, it would have provided for tolling to allow for a petition for certiorari to be acted upon, just as it did in Chapter 154." 166 F.3d at 576.
 

United States v. Craycraft
167 F.3d 451, 456-457 (8th Cir. 1999)
The Eighth Circuit joined "the majority of circuits in holding that §2255's one-year time limit did not begin to run prior to April 24, 1996." The court went on to find, however, that although petitioner’s original petition was timely, his claim that counsel was ineffective for failing to file an appeal, which was added in his second amendment to the petition, was not. The court explained:

The Federal Rules of Civil Procedure provide for the relation back of amendments filed after the running of a period of limitations in certain circumstances. [footnote omitted] An amendment to a pleading shall "relate back" to the date of the original pleading only if the claim asserted in the original pleading and the claim asserted in the amended pleading arose out of the same conduct, transaction, or occurrence. Fed.R.Civ.P. 15(c)(2).[footnote omitted] If the ineffective conduct alleged by Craycraft in his first petition cannot be said to have arisen out of the same set of facts as his amended claim, his amendment cannot relate back and his claim must be time-barred since it was filed after the statutory period of limitation.

"The rationale of Rule 15(c) is that a party who has been notified of litigation concerning a particular occurrence has been given all the notice that statutes of limitations were intended to provide." [citations omitted]. Craycraft’s original complaint alleged deficiencies of representation distinctly separate from the deficiency alleged in his amendments. Failing to file an appeal is a separate occurrence in both time and type from a failure to pursue a downward departure or failure to object to the type of drugs at issue. We cannot say that his original petition would provide notice of such a different sort of theory. Therefore, the amendment cannot relate back under Rule 15(c) and it must be time barred. It follows that the District Court lacked jurisdiction under the statute to hear this claim, and so we must affirm the court's dismissal of this claim, though on different grounds.

Barnett v. Lemaster
167 F.3d 1321, 1323 (10th Cir. 1999)
The Tenth Circuit held that, for purposes of §2244(d)(2), "[t]he time during which a properly filed application for State post-conviction relief . . . is pending" "encompass[es] all of the time during which a state prisoner is attempting, through proper use of state court procedures, to exhaust state court remedies with regard to a particular post-conviction application".

McSheffrey v. Angelone
1999 WL 89403 at *2 (4th Cir. Feb. 23, 1999) (per curiam) (unpublished)
The Fourth Circuit held that "[a] state application is properly filed if it complies with the state procedural requirements for successive collateral attacks on a conviction, such as timeliness and proper place of filing. It is unnecessary for a federal court to examine the merits of the state application or to determine whether a procedural bar is applicable." Applying this holding, the court determined that petitioner’s filing of a clearly successive (and therefore barred) state habeas petition tolled the §2244(d) limitations period long enough to render his subsequent federal habeas petition timely. The court therefore vacated the district court’s order dismissing the petition as untimely and remanded for consideration of petitioner’s claims.

Jones v. Bertrand
171 F.3d 499, 504 (7th Cir. 1999)
The Seventh Circuit held that "a pro se petition for habeas relief is deemed filed for statute of limitations purposes when it is given to the proper prison officials and not when it is actually received by the district court clerk. Additionally, . . . so long as either the five dollar filing fee or the application to proceed IFP is submitted within a reasonable time after the petition for habeas relief, it need not accompany the petition for it to be deemed timely".

Tinker v. Hanks
172 F.3d 990, 991 (7th Cir. 1999)
The Seventh Circuit held that an application for leave to file an Indiana state post-conviction petition is not a "properly filed" application for post-conviction relief within the meaning of §2244(d)(2). In support of this determination, the court reasoned that "Congress could not have intended that the time for filing the federal action be tolled indefinitely by the simple expedient of filing repeated applications for leave to file state postconviction proceedings." The court further explained that its "interpretation will not impose a hardship on state prisoners. The pendency of their application for leave to file a state postconviction proceeding will not prevent them from filing their federal habeas corpus action within one year, since any such action can, in the discretion of the district judge, be stayed pending the state appellate court's decision on the prisoner’s application".

Nichols v. Bowersox
172 F.3d 1068 (8th Cir. 1999) (en banc)
The Eighth Circuit, sitting en banc, held that a "one-year filing grace period, beginning on April 24, 1996, shall apply for habeas petitions where the relevant triggering date under 28 U.S.C. §2244(d)(1) precedes April 24, 1996." 172 F.3d at 1073. The court expressly reserved judgment on whether that one year period ends on April 23 or April 24, 1997. See id. The court also held that, "for purposes of applying 28 U.S.C. §2244(d), a pro se prisoner’s petition for a writ of habeas corpus is filed on the date it is delivered to prison authorities for mailing to the clerk of the court." 172 F.3d at 1077.

Moore v. United States
1999 WL 246875 at *3 (8th Cir. April 16, 1999) (to be reported at 173 F.3d 1131)
Relying on a similar conclusion reached by the Third Circuit with respect to §2244(d)(1), the Eighth Circuit held that "the one-year time limit for filing §2255 motions is a statute of limitation and not a jurisdictional bar," (agreeing with Miller v. New Jersey State Dept. of Corrections, 145 F.3d 616 (3rd Cir. 1998)). The court also joined the Second and Fifth Circuits in concluding "that April 24, 1997 is the final date for filing a motion within §2255's one-year grace period." Finally, the court held that "the prison mailbox rule applies to pro se §2255 motions".

United States v. Duffus
___F.3d___, 1999 WL 232563 at *3-4 (3rd Cir. April 20, 1999)
In this §2255 case, the Third Circuit adopted a claim-by-claim approach to assessing compliance with the statute of limitations. Explaining its rejection of petitioner’s challenge to the district court’s denial of his motion -- filed several months after the limitations period had run -- for leave to amend his otherwise timely §2255 motion to add a claim of ineffective assistance of trial counsel, the court stated that "if the district court had granted the motion to amend . . . it would have frustrated the intent of Congress that claims under 28 U.S.C. §2255 be advanced within one year after a judgment of conviction becomes final unless any of the other circumstances in 28 U.S.C. §2255 are applicable." Clarifying its decision, the court added the following:

We do not go so far as to suggest that the district court could not have permitted any amendment of the motion after April 23, 1997. Certainly the court could have permitted an amendment to clarify a claim initially made. Here, however, while Duffus asserted in his initial motion that his attorney had been ineffective, the particular claim with respect to failing to move to suppress evidence was completely new. Thus, the amendment could not be deemed timely under the "relation back" provisions of Fed.R.Civ.P. 15(c). As the Court of Appeals for the Eighth Circuit recently explained in United States v. Craycraft, 167 F.3d 451, 457 (8th Cir.1999), "If the ineffective conduct alleged by Craycraft in his first petition cannot be said to have arisen out of the same set of facts as his amended claim, his amendment cannot relate back and his claim must be time-barred since it was filed after the statutory period of limitation." We find Craycraft to be a compelling precedent.

* * *

We reiterate that if the court permitted the amendment it would have acted contrary to the policy of the AEDPA, which requires courts to measure the running of the limitations periods from the date on which the judgment of conviction becomes final. While the statute will run from "the date on which the facts supporting the claim or claims presented could have been discovered through the exercises of due diligence" if that date follows the date the judgment of conviction becomes final, Duffus was aware of the facts to support his claim before his conviction became final. In these circumstances, an amendment to introduce the new theory into the case that his trial attorney had been ineffective for failing to move to suppress the cocaine, is simply not acceptable).

Guenther v. Holt
1999 WL 246649 at *2 (11th Cir. April 27, 1999) (to be reported at 173 F.3d 1328)
In the context of deciding that the district court’s refusal to transfer petitioner’s second or successive petition to the court of appeals for consideration pursuant to §2244(b) did not harm petitioner, the Eleventh Circuit indicated that second or successive petitions, like first petitions, must be filed within the one year limitations period of §2244(d).

Adams v. United States
1999 WL 246651 (11th Cir. April 27, 1999) (to be reported at 173 F.3d 1339)
In this §2255 case, the Eleventh Circuit held "that a pro se prisoner’s motion to vacate [sentence] is deemed filed the date it is delivered to prison authorities for mailing." 1999 WL 246651 at *2. However, the court declined petitioner’s request "to extend the mailbox rule" to deem a petition filed on the date a prisoner submits it to prison authorities for necessary photocopying. See id. The court also noted the disagreement between the Third and Tenth Circuits, which consider federal convictions to become "final" on the date the Supreme Court denies certiorari, or on the date on which time for seeking certiorari expires, and the Seventh Circuit, which considers federal cases in which a petition for certiorari was not filed to be final on the date the court of appeals issues its mandate following affirmance of the conviction. The Eleventh Circuit, however, declined to decide which approach it would follow, holding instead "only that the receipt by this Court of the Supreme Court’s denial of certiorari does not govern when a ‘judgment becomes final’ for the purposes of the AEDPA’s one-year limitations period." 1999 WL 246651 at *4.

United States ex rel. Centanni v. Washington
1996 WL 251438 (N.D.Ill. May 8, 1996)
Court ordered further briefing on issue of retroactivity, but expressed doubt that Congress would have enacted a statute of limitations requiring dismissal of pending cases that, prior to enactment, would not have been time barred.

Breard v. Angelone
926 F.Supp. 546, 547 (E.D.Va. 1996)
Application of the 180 day limitations period of 28 U.S.C. § 2263 to a petitioner who, prior to its passage, would not have been time barred, but upon its passage would be immediately time barred, would infringe the privilege of habeas corpus and result in a violation of the Suspension Clause. To avoid such a result, the court interpreted the commencement date of the limitations period to be April 24, 1996.

United States v. Adams
1996 WL 363926 at n.2 (E.D.Pa. June 21, 1996)
Petitioner's § 2255 motion under Bailey v. United States, 116 S.Ct. 501 (1995), which was filed one day after the AEDPA became effective, was timely because the Act allows filing within one year of the date the Supreme Court recognizes a new right made retroactive on collateral review.

United States v. Bazemore
929 F.Supp. 1567, 1569 (S.D.Ga. 1996)
Court construed the one year statute of limitations of § 105 to bar petitioner's § 2255 motion, filed on July 20, 1996, because petitioner's conviction became final no later than May 2, 1995, when the Supreme Court denied certiorari.

Freeman v. Gilmore
1996 WL 473469 (N.D.Ill. Aug. 16, 1996)
Court declined to decide whether 1 year limitations period applied retroactively because the period is not jurisdictional and the government did not argue for application of the bar.

Griffin v. Endicott
932 F.Supp. 231, 232 (E.D.Wis. 1996)
One year statute of limitations applies to all habeas petitions filed by prisoners in custody pursuant to a state court judgment, including petitioner’s, which was filed on June 7, 1996. Petitioner’s pro se motion to reconsider, arguing that the Act did not apply because his case did not involve terrorism or the death penalty, and that application would violate the Ex Post Facto Clause, was denied.

Curtis v. Class
939 F.Supp. 703, 706 (D.S.D. 1996)
The court held that the new Act applied to pending cases and proceeded to dismiss the petition (which was filed on July 11, 1996) because it was barred by the new one year statute of limitations.

Flowers v. Hanks
941 F.Supp. 765, 770 (N.D.Ind. 1996)
Court held that petitioners with § 2254 actions accruing before April 24, 1996 are entitled to a grace period equal to the limitations period of one year; thus, these petitions must be filed within one year of the effective date of the Act.

Keeney v. McDaniel
CV-N-93-792-ECR (D.Nev. Oct. 3, 1996)
The court stated that a state proceeding filed to exhaust an unexhausted claim would be deemed "properly filed" and would toll the § 2244(d) statute of limitations. The court defined "properly filed" for purposes of § 2244 to mean "filed in compliance with the basic technical rules of the state court," and stated that "‘properly filed’ does not depend on the eventual determination of the merits of the second petition filed in state court."

Rienzi v. United States
1996 WL 605130 at *1 (E.D.Pa. Oct. 21, 1996)
The court rejected the government’s argument that petitioner’s § 2255 motion was precluded by the statute of limitations in the AEDPA. The court concluded that it would be "‘entirely unfair and a severe instance of retroactivity’. . . to apply the Act’s limitations period to a defendant in Rienzi’s position."

United States v. Mead
946 F.Supp. 4, 5 (D.Or. 1996)
The court granted petitioner’s motion for reconsideration of its order denying his motion to convert his 2255 into a 2254 to allow him to raise a claim of ineffective assistance of counsel which was used to enhance his federal sentence. In so doing, the court issued an order which, inter alia, allows Mead to file his § 2254 petition even if his efforts at exhaustion in state court would otherwise carry him beyond the one year statute of limitations erected by the new Act.

Kelly v. Keane
1996 WL 640892 at *1 (S.D.N.Y. Nov. 4, 1996)
The court rejected the AG’s argument that Kelly’s petition was time-barred because it was not filed within a year of the completion of state court direct review. Relying on Reyes v. Keane, 90 F.3d 676 and Boria v. Keane, 90 F.3d 36, the court held that the AEDPA "does not apply retroactively to habeas corpus petitions in noncapital cases." And because Kelly’s petition was filed a month prior to the effective date of the AEDPA, the claims were not time barred.

Pyles v. Johnson
No. 396 CV 2838-D (N.D.Tex. Dec. 2, 1996)
As part of an agreed dismissal of this Texas class action, the parties agreed that § 2244(d)’s limitation period is tolled from the date of a request for counsel or the state court’s entry of the requisite findings for appointment of counsel until the date of actual appointment by the CCA.

Duarte v. Hershberger
947 F.Supp. 146, 147 (D.N.J. 1996)
The court held that petitioner’s habeas petition, filed ten years after the affirmance of his non-capital convictions on direct appeal, but only thirteen days after passage of the AEDPA, was not barred by the new one year statute of limitations. The court noted the hardship that retroactive application of the limitations period would cause the petitioner, held that the statute applies prospectively only and concluded that petitioner would have a one year grace period to file his claims.

Laboy v. Demskie
947 F.Supp. 733, 739 (S.D.N.Y. 1996), aff’d, 1998 WL 88127 (2nd Cir. Feb. 26, 1998) (unpublished)
Following Reyes and Boria, the court found that the statute of limitations in the AEDPA did not apply to bar petitioner’s habeas petition, which was filed on April 23, 1996, before the Act, but more than one year after his conviction became final.

Trammell v. Coombe
1996 WL 719384 (S.D.N.Y. Dec. 13, 1996)
Relying on Reyes v. Keane, 90 F.3d 676 (2nd Cir. 1996) the court held that the AEDPA’s one year statute of limitations would not be applied to bar petitioner’s claims.

United States ex rel. Smith v. Page
1997 WL 61446 (N.D.Ill. Feb. 6, 1997)
In fn.5, the court recognized that § 2244(d)’s limitations period, if applicable, would bar petitioner’s habeas petition, which was filed over four years after he completed direct review. Noting that petitioner filed "just two months after the new filing deadline became law," the court decided to "permit him this grace period and find his petition timely."

Clarke v. United States
955 F.Supp. 593 (E.D.Va. 1997), vacated, 1998 WL 559754 (4th Cir. Sept. 2, 1998)
The court applied the new one year statute of limitations for § 2255 motions to petitioner’s case, which was filed almost six months after passage of the AEDPA but over five years after his conviction became final. The court stated that the "one year limit seems fully enforceable in the instant case, because courts should apply the law in effect at the time it renders its decision," 955 F.Supp. at 595, and concluded that "the one-year limitations period in Section 2244 should be applied to Section 2255 motions filed after the effective date of the AEDPA." 955 F.Supp. at 597. The court also stated that, had Congress intended a grace period for litigants such as petitioner, it would have said so expressly.

Holmes v. Wharton
1997 WL 115837 at *2 (N.D.Ga. Feb. 27, 1997)
The court "agree[d] with the emerging majority position that where an action accrued prior to the enactment of the AEDPA, the Act’s new limitations period can only be applied to bar the action after a reasonable time has elapsed." The court declined to address precisely what a "reasonable" time would be, other than to say that petitioner’s claims, which were filed within a week of enactment of the Act, were filed within a reasonable time.

Bacigalupo v. Calderon
No. C 94-2761 DLJ (N.D.Cal. March 24, 1997) and Branner v. Calderon, No. C 90-3219 DLJ (N.D.Cal. March 24, 1997)
The court held that, if applicable to this case, the limitations period would be subject to equitable tolling as a matter of law. In so holding, the court rejected the state’s contention that the limitations period is a jurisdictional prerequisite to filing. The court also found no congressional intent to preclude a court from equitably tolling the limitations period in appropriate circumstances.

Scire v. United States
1997 WL 138991 at *5 (E.D.N.Y. March 24, 1997)
The court held that petitioner’s §2255 motion fell "within the ‘reasonable time’ exception to the limitations period suggested by the Second Circuit in Reyes," and was therefore timely filed despite the fact that petitioner’s convictions had been final for more than a year. The court agreed with other courts that have found "the retroactive application of the AEDPA statute of limitations to be unfair and draconian."

Kinser v. Parker
CA No. 1:96-CV-94(R) (W.D.Ky. March 27, 1997)
The court held that "one year is a reasonable amount of time ‘to apprise future petitioners that their pre-accrued claims must be filed within one year of the enactment of the AEDPA or be barred by §2244(d)(1).’ Flowers [v. Hanks], 941 F.Supp. [765, 771 (N.D.Ind. 1996).] Any claim which accrued before April 24, 1996 and is filed before April 24, 1997 is not barred by the AEDPA." Order at 2.

Mosley v. French
961 F.Supp. 889, 893 (M.D.N.C. 1997)
Construing the Act’s limitations period, the court held that McFarland did not hold that a motion for appointment of counsel commenced a federal habeas action for purposes other than §848(q)(4)(B). Therefore, the court found that "the only effect a motion for appointment of counsel has on the one year limitation period is that the pending motion may justify application of equitable tolling should the time to file run out during the pendency of the motion. The court also held that the "time taken to prepare a petition for certiorari to the state supreme court is not excluded" from the calculation of the one year period. The court also rejected petitioner’s contention that, as an indigent, his request for counsel unfairly subjected him to the court’s scheduling orders, while a petitioner able to retain counsel is able to wait until the last day of the limitations period to file a petition. The court responded that, "to the extent petitioner uses public resources in the form of appointed counsel, he should not expect to be wholly free of accountability and direction imposed by others."

Rowland v. Calderon
C-94-3037-EFL (N.D.Cal. April 21, 1997)
The court granted leave to amend the petition to delete unexhausted claims and stayed the federal proceedings during exhaustion of state remedies. The court deferred decision on the availability of equitable tolling until petitioner returned from state court, but noted that a ruling on the tolling issue may be unnecessary in light of the state’s concession at oral argument that the limitations period is equitably tolled while a federal petition is pending. In its pleadings, the state also said that filing a state habeas petition would also toll the statute, which is significant because the state habeas petition to be filed in this case will be a successor. Thus, the state apparently conceded that a successor state habeas petition can be "properly filed" for tolling purposes.

Ashmus v. Calderon
C-93-0594-THE (N.D.Cal. April 24, 1997)
The court held that Calderon v. United States District Court (Beeler), 97 C.D.O.S. 2883 (9th Cir. April 21, 1997) makes clear that the statute of limitations applies to petitioner even though he requested counsel before the Act. The court then ordered all claims, exhausted or not, "filed by April 23, 1997 in either a federal habeas corpus petition or in a ‘properly filed application for State post-conviction . . . review,’ . . . to toll the statute of limitations." The court also found that the statute was tolled as to exhausted claims by the filing of the federal petition, but that it was running on the unexhausted claims until petitioner files his state habeas petition. The court then granted a forty five day equitable tolling period for the unexhausted claims.

United States v. Ortiz
1997 WL 214934 (E.D.Pa. April 28, 1997)
The court held that petitioner’s §2255 motion, filed on February 20, 1997, was not barred by §2244. The court reasoned that although "the limitation period lapsed on Ortiz’s interstate commerce claim on December 29, 1993, and on [his] §924(c) claim on December 6, 1996," id. at *3, the motion was still filed "within a reasonable time after the passage of the [AEDPA] because Ortiz filed his petition within ten months after the Act became effective. Further, because at the most only a year and a few months passed from the announcement of the Supreme Court’s decision in Bailey to when Ortiz [filed his petition], the court concludes that Ortiz made reasonable efforts to get his §924(c) claim underway." Id. at *5.

Parisi v. Cooper
961 F.Supp. 1247, 1248 (N.D.Ill. 1997)
The court addressed the impact of §2244(d)(2)’s "pertinent judgment or claim" language on petitioner’s ability to timely assert claims exhausted on direct appeal and claims litigated for the first time in state post-conviction proceedings. The court noted this language could be read to allow tolling during state post-conviction proceedings only with respect to claims asserted in such proceedings, thus leaving the clock to run on claims exhausted on direct review. To resolve this potential problem, the court adopted a procedure whereby the petition would be dismissed "without prejudice, with leave granted to [move] for its reinstatement within 63 days after the issuance of a decision" by the Illinois appellate court on the pending appeal from the denial of post-conviction relief. "If no such timely motion for reinstatement is filed by the end of that period, the dismissal order that has been entered here will become final on the next court day."

United States v. Jones
963 F.Supp. 32, 34-35 (D.D.C. 1997)
The district court dismissed petitioner’s motion for an extension of time to file a successive §2255 motion because petitioner had not sought permission from the court of appeals to file a successor, and because petitioner did not file his motion for an extension of time until several days after the April 23, 1997 deadline.

Hall v. Turpin
No. 1:97-CV-723-ODE (N.D.Ga. May 12, 1997)
The district court denied the state’s motion to dismiss the petition as untimely under the new statute of limitations. Petitioner was sentenced to death on February 3, 1989, finally denied state habeas relief on March 31, 1995, and he filed his federal habeas petition on April 23, 1997. As to the state’s contention that §2244(d) required petitioner to file his federal petition by March 31, 1996, the court stated: "This conclusion is wrong." Order at 2. Additionally, the court found that "[p]etitioner’s filing approximately a year after the AEDPA became effective was not unreasonable. First, the court feels that Petitioner should be afforded considerable latitude since this is a capital case. Second, the court finds that a two-year delay between the conclusion of the state habeas proceedings and the filing of Petitioner’s federal petition is not egregious especially given the numerous and complex issues presented in the petition." Order at 3-4.

Ojeda v. Artuz
1997 WL 283398 at *2 (S.D.N.Y. May 29, 1997)
The court read the new statute of limitations to allow "one year and 90 days" from the date petitioner’s conviction became final in which to file a habeas petition. This period takes into account the fact that petitioner did not file a cert petition with the U.S. Supreme Court after the New York Court of Appeals refused to hear his case. After concluding that under this timetable petitioner would be barred by the new statute, the court, citing the Second Circuit’s decision in Peterson v. Demskie allowing a "reasonable time" following passage of the Act, had "no difficulty in finding that a ‘filing’ that occurred 89 days after the effective date of AEDPA is also timely."

United States v. Cuero-Gongora
1997 WL 346722 (E.D.La. June 23, 1997)
The court found that petitioner’s federal conviction became final on August 29, 1992, the date on which the time to file notice of appeal following his guilty plea expired. The court therefore found petitioner’s §2255 motion, which was filed on June 2, 1997, "procedurally barred" under the new statute of limitations and denied the motion.

Hughes v. Irvin
967 F.Supp. 775, 779 (E.D.N.Y. 1997)
The court held that "‘properly filed,’ as used in §2244(d)(2), means that in order to trigger the tolling mechanism, a petitioner’s collateral review application must be submitted in accordance with any applicable procedural requirements, such as notice to the respondent, correct place of filing, and timeliness of the motion." The court also rejected the "proposition that a seemingly frivolous collateral attack is not ‘properly filed’" for tolling purposes.

United States v. Maldonado
1997 WL 360932 at *1 (E.D.Pa. June 26, 1997)
The court dismissed petitioner’s §2255 motion as untimely. Petitioner was sentenced following a guilty plea in federal court on June 6, 1996 and did not pursue a direct appeal. On June 4, 1997, he filed a pro se motion for enlargement of time seeking until June 15, 1997 to file his §2255 motion. Without mentioning the possibility that petitioner’s conviction did not become final until the time for filing a notice of appeal had passed, the court concluded that the motion was time barred.

Oppenheimer v. Kelly
1997 WL 362216 at *1 (S.D.N.Y. June 27, 1997)
Citing the Second Circuit’s decision in Peterson v. Demskie, which held that petitioners need not be afforded a full year following passage of the Act in which to file, the court dismissed petitioner’s habeas petition, which was filed April 9, 1997 "--350 days after the effective date of the AEDPA."

Kirby v. Senkowski
1997 WL 399663 (S.D.N.Y. July 15, 1997)
The court found that "filing the [§2254] petition 356 days after the AEDPA took effect did not constitute filing within a ‘reasonable’ period of time" where petitioner’s murder conviction became final on direct review on September 6, 1988. The court therefore dismissed the petition as time barred.

Green v. Wharton
1997 WL 404278 (N.D.Ga. July 15, 1997)
The court held that "the one-year limitations period is tolled until April 23, 1997--one year from the date of the AEDPA’a enactment."

Rivalta v. Artuz
1997 WL 401819 at n.1 (S.D.N.Y. July 16, 1997)
In footnote 1, the court stated that, "[i]n light of the prevailing lenient construction afforded under the AEDPA and the liberal treatment traditionally conferred by this Circuit on pro se parties, I find petitioner’s submission of his [§2254] application six months following the effective date of the AEDPA to be within a reasonable period."

Martin v. Jones
969 F.Supp. 1058, 1061-62 (M.D.Tenn. 1997)
The court held that a one year grace period is appropriate to allow petitioners with claims accruing prior to the enactment of the AEDPA to file habeas petitions. Next, the court construed "§2244(d)(2) to toll the statute of limitations on all pending claims regardless of their finality" during the time in which a properly filed state post-conviction application is pending. The court also stated that "because Petitioner still has claims pending on collateral review, the statute of limitations has not begun to run on his exhausted [direct appeal] claims."

Chapdelaine v. United States
1997 WL 446465 (D.R.I. July 28, 1997)
In his report and recommendation, the federal magistrate found sua sponte that the new statute of limitations for §2255 motions applies to cases which became final prior to April 24, 1996 and that application of a "grace period" for petitioners who would otherwise be unexpectedly barred is inappropriate. The magistrate found that application of the statute of limitations would not "retrospectively impair the parties’ rights," id. at *2, and took issue with decisions of the Second, Seventh, Ninth and Tenth Circuits applying a grace period to allow filing of pre-accrued claims: "had Congress intended to incorporate a one year post-enactment grace period it could have expressly done so. Not having done so, one should not be presumed." Id. at *4. Finally, the magistrate observed that "[m]ere belief that an enactment is unfair does not relieve the executive and judicial branches of the respective duties of enforcing and interpreting the law." Id. at *6.

Kapral v. United States
973 F.Supp. 495 (D.N.J. 1997)
Citing the "sharply contrast[ing]" language of the limitations provisions governing §2254 and §2255 cases and the policies which have shaped the procedural rules in each type of proceeding, see 973 F.Supp. at 499, the court held that, "for purposes of motions made pursuant to 28 U.S.C. §2255, the date of the appeals court’s decision constitutes the date on which the judgment of conviction becomes final" for purposes of calculating the limitations period. 973 F.Supp. at 497. The court did recognize a one year grace period extending to April 24, 1997 for petitioners with pre-existing claims, but concluded that petitioner’s motion was time barred because his case was finally decided by the court of appeals on February 6, 1996, and his §2255 motion was not filed until April 29, 1997.

United States v. Gould
1997 WL 535821 at *4 (E.D.Pa. July 29, 1997)
In this §2255 case, the government "waived the applicability of the limitations period" by stating in its Answer that "‘[i]n the interest of justice, the government will not pursue any waiver claim it may have in this matter based on the extension requested by the defendant.’" Additionally, finding the Ninth Circuit’s reasoning in Calderon v. United States Dist. Ct., 112 F.3d 386 (9th Cir. 1997), persuasive, the court found "[n]othing in the language of the statute suggests that the limitation period in § 2255 is jurisdictional rather than a statute of limitation." The court therefore concluded that "the limitations period in AEDPA is a statute of limitations subject to tolling and waiver."

Rosa v. Senkowski
1997 WL 436484 (S.D.N.Y. Aug. 1, 1997), aff’d on other grounds, 148 F.3d 134, 135 (2nd Cir. 1998)
The court held that application of the statute of limitations to bar petitioner’s first petition, which was filed on April 8, 1997, would "effectively deprive[] him of the ability to obtain any collateral review in a federal court of the merits of his claim that his confinement violates his constitutional rights. Such a deprivation constitutes an unconstitutional ‘suspension’ of the writ of habeas corpus." Id. at *7. The court held that application of the statute of limitations would render "habeas an ‘inadequate’ and ‘ineffective’ means of testing the constitutionality of Rosa’s imprisonment,"id. at *8, since it would bring about the "‘fatal consequence’ of eliminating all federal review of his federal constitutional claims." Id. at *10. The court concluded by stating that, "[i]n light of the exclusivity of the habeas remedy to challenge a prisoner's confinement and the judicial and statutory expansion of federal habeas preceding adoption of the Fourteenth Amendment, the Due Process clause should be read to include the right of a state prisoner to challenge the constitutionality of . . . his confinement in a federal habeas corpus proceeding." Id. at *11.

United States v. Searle
974 F.Supp. 1433, 1438 (M.D.Fla. 1997)
Although the opinion is unclear, the court appeared to conclude that petitioner’s failure to raise a claim based upon a recent Supreme Court decision within one year as prescribed in §2255's limitations provision gives rise to a "procedural[] bar[]" which can be overcome by a showing of cause and prejudice.

Fluellen v. Walker
975 F.Supp. 565, 566 n.1 (S.D.N.Y. 1997)
Although she found no need to reach the timeliness of petitioner’s habeas petition under the statute of limitations since it was being dismissed as mixed, Judge Kimba Wood indicated that, if she were to decide the issue, she "would likely find that the petition, filed roughly 11 months and 20 days after the effective date of the AEDPA, was timely filed."

Dickerson v. Stalder
975 F.Supp. 831, 833 (E.D.La. 1997)
The court held "that prisoners whose convictions became final on or before April 24, 1996, have up to one year after the enactment of the AEDPA or April 24, 1997 to file their petitions." The court acknowledged the Second Circuit’s "reasonable grace period" holding in Peterson v. Demskie, 107 F.3d 92 (2nd Cir. 1997), but reasoned that, "[t]he problem with the "reasonable grace period" standard is where to draw the line . . .. A clear bright line of one-year is the surest approach to promoting consistency in line with due process concerns and avoiding inconsistent and arbitrary rulings.

Parker v. Bowersox
975 F.Supp. 1251, 1252-53 (W.D.Mo. 1997)
The court held that "§2244(d)(1)’s statute of limitations is not jurisdictional, but is subject to equitable tolling." The court also applied the mailbox rule to find that petitioner’s petition was timely filed when it was placed in the prison mailbox."

Roldan v. Artuz
976 F.Supp. 251, 254 (S.D.N.Y. 1997)
Dismissing yet another pre-April 24, 1997, petition under Peterson v. Demskie, 107 F.3d 92 (2nd Cir. 1997), the court indicated that it "suspects, but does not decide, that, except in cases involving special circumstances, the ‘outer limit’ [for timeliness] will be no more than nine months after enactment of the AEDPA, and possibly just six months after the AEDPA’s enactment."

Andrews v. Johnson
976 F.Supp. 527, 530 (N.D.Tex. 1997)
Relying on the applicability of Rule 8(c) ("Affirmative Defense"), FRCP, to habeas proceedings, the distict court determined that the habeas statute of limitations should be treated as an affirmative defense, rather than a jurisdictional bar.

Syms v. Chapman
1997 WL 561313 at *3 (S.D.Ga. Aug. 19, 1997)
Adopting the approach of the Second Circuit in Peterson v. Demskie, 107 F.3d 92, 93 (2nd Cir. 1997) (holding that petitioners who would otherwise be barred under new statute of limitations should be afforded a "reasonable time" in which to file), the district court dismissed petitioner’s April 14, 1997 petition as time-barred. In rejecting the approach of the other circuit courts that have given litigants a full year, the court remarked that, "[w]hile facially appealing, the one-year grace period is, first and foremost, judge-made. Its authors have in effect judicially implanted an entirely new statutory subsection into §§2244(d) and 2255 . . ."

Ashmus v. Calderon
977 F.Supp. 987, 992 (N.D.Cal. 1997)
The court observed that, "while no court has interpreted the precise operation of §2244(d)(2) [the statute of limitations] there is no indication that it is claim specific and operates only for those claims actually filed in state court," and that "§2244(d)(2) must toll the limitations period on all exhausted claims and all unexhausted claims pending in state court." Thus, the court concluded that "a petitioner need not have all exhausted claims actually filed in federal court in order to avoid the running of the statute of limitations on those claims."

Brooks v. Artus
1997 WL 599346 at *1 (N.D.N.Y. Sept. 19, 1997)
In the course of dismissing petitioner’s habeas petition as untimely, the court noted that "[a] judgment of conviction becomes final under the AEDPA at the conclusion of the ninety days during which the party could have sought certiorari in the United States Supreme Court."

United States v. Valentin
1997 WL 602771 at *1 (E.D.Pa. Sept. 19, 1997)
In this §2255 case, the court applied the "mailbox rule" and "presum[ed the] motion was given to prisoner [sic] authorities on the date on which it was signed, April 22, 1997 . . .," thereby saving the petition from being dismissed as untimely since it was not received by the court until April 28, 1997).

Babcock v. Duncan
1997 WL 724450 at *2 (N.D.Cal. Nov. 12, 1997)
The court rejected petitioner’s contention that the statute of limitations was tolled during the time in which his appeal of the court’s dismissal of his initial habeas petition due to lack of exhaustion was pending in the Ninth Circuit. The court observed that "[n]o court has found that the running of the limitation period also is tolled, as petitioner contends, for the time period during which a properly filed application for post-conviction review is pending in federal court."

Morillo v. Crinder
1997 WL 724656 at *2 (S.D.N.Y. Nov. 18, 1997)
The court explained that the "‘reasonable time’ rule announced in Peterson [v. Demskie, 107 F.3d 92 (2nd Cir. 1997)], addresses ‘circumstances . . . where a state prisoner has had several years to contemplate bringing a federal habeas corpus petition.’" Because petitioner here "filed []his habeas petition only 370 days, a mere five days more than a year, after his conviction became final [on April 4, 1996]," the court declined to dismiss the petition because doing so "would be an unduly harsh application of the arbitrary ‘reasonable time’ rule."

Reynolds v. Artuz
1997 WL 727481 (S.D.N.Y. Nov. 21, 1997)
The court held that "the petition was filed within a reasonable period after the effective date of the AEDPA" where the initial petition was filed on May 20, 1996, withdrawn without prejudice on September 3, 1996 to allow retained counsel to refile a new petition, then resubmitted pro se in its original form on April 21, 1997.

United States ex rel. Joseph Barnes v. Gilmore
980 F.Supp. 295, 296 (N.D.Ill. 1997)
The court followed the "predominant authority" and applied the mailbox rule, which dictated that the petition was timely because it was delivered to prison authorities on April 22, 1997, and those authorities debited petitioner’s prison account for the cost of postage on April 23, 1997. In footnote 2, the court also noted "what seems to be an odd choice of dates" in the Seventh Circuit’s en banc opinion in Lindh – specifically, that "cases that address limitation periods tend to exclude the date of the triggering event in the calculation . . . [which] would suggest that a one-year limitation period calculated from the April 24, 1996 effective date of the [AEDPA] would render an outside filing date of April 24, 1997 timely, instead of the April 23 date announced in Lindh."

United States v. Van Poyck
980 F. Supp. 1108, 1109-1100 (C.D. Cal. 1997)
Petitioner’s request for 60 day extension in which to file section 2255 petition was denied; petitioner alleged that his inability to secure copies of transcripts from court reporters and lock downs at prison made it impossible for him to file petition in a timely manner but the court found that these were not extraordinary circumstances beyond his control that made it impossible for him to file the petition.

Howard v. Knapp
1997 WL 749390 at *2-3 (S.D.N.Y. Dec. 4, 1997)
The court dismissed petitioner’s §2254 petition challenging his 1981 convictions as untimely under §2244(d). In various places in the opinion, the court states that the statute of limitations ran out on petitioner well before it was even enacted. See, e.g., id. at *2 ("Applying the one-year statute of limitations on these facts would mean that the petitioner was time-barred as of 1986 at the latest;" "pursuant to its provisions, petitioner would be deemed time barred from filing such a petition as of September of 1994–almost two years before the AEDPA was passed"). The petition at issue was filed on March 25, 1997. Petitioner’s most recent state collateral attack was filed in February, 1996 and denied on June 13, 1996. Without addressing whether this state collateral attack was "properly filed," the court concluded that this state proceeding "has no bearing on [the statute of limitations] analysis as this latest collateral state proceeding was brought well over a year after the statute of limitations began to run" notwithstanding the fact that the statute of limitations was not even enacted until two months after the state petition was filed. Thus, the court included the time during which the state proceeding was pending in the overall time calculation, concluded that the petition was received "340 days after the passage of the AEDPA," and dismissed the petition.

Montalvo v. Portuondo
1997 WL 752728 at *2 (S.D.N.Y. Dec. 4, 1997)
The court denied the state’s motion to dismiss petitioner’s first §2254 petition, which was filed on April 28, 1997, as untimely. The court acknowledged that the petition would be untimely under §2244(d)(1)(A), but found, as it had in Rosa v. Senkowski, 1997 WL 436484 (S.D.N.Y. Aug. 1, 1997), that "the one-year limitations period violates the Suspension and Due Process Clauses." The court explained that "the Due Process question is whether the Fourteenth Amendment precludes Congress from imposing a one-year limitations period on first federal habeas corpus petitions where the effect would be to suspend the availability of any federal court review of whether a state prisoner is incarcerated in compliance with due process of law."

Samuels v. Artuz
1997 WL 803772 at *2 (E.D.N.Y. Dec. 5, 1997)
The court rejected the state’s contention that petitioner’s state court motion to vacate his sentence was not "properly filed" so as to toll the statute of limitations stating that "[t]here is nothing in the plain language of §2244(d)(2) or in its legislative history that suggests that the ‘properly filed’ requirement was intended to exclude all motions for collateral relief which the state court denied without reaching the merits."

Application of Wattanasiri
982 F.Supp. 955, 956 (S.D.N.Y. 1997)
The court denied petitioner’s request for an extension of time in which to file his §2255 motion, concluding that, because no case or controversy was then pending, petitioner’s request amounted to a request for an advisory opinion. The court did remark that petitioner’s "predicament is sympathetic," given the fact that he is proceeding pro se and is unskilled in the English language, and pointed out that petitioner may still file his §2255 motion and seek appropriate relief based upon the government’s response.

United States ex rel. Banks v. Barnett
1997 WL 786666 (N.D.Ill. Dec. 15, 1997)
The court, resolving nearly every issue in a manner opposite to that of the Barnes court (below), held that the "mailbox rule" does not apply to pro se inmate habeas petitions.

Hill v. Keane
984 F.Supp. 157, 159-60 (E.D.N.Y 1997)
Petitioner’s state post-conviction application was not properly filed because it relied solely upon record facts and, under New York law, a defendant is procedurally barred from filing a state post-conviction application on the basis of claims which could have been raised on direct appeal and thus it did not toll the AEDPA’s one year statute of limitations. Similarly, petitioner’s motion for reargument of his appeal was not properly filed because it was untimely under state law.

United States ex rel. Barnes v. Gilmore
987 F.Supp. 677, 682 (N.D.Ill. 1997)
The court held in a well-reasoned and thorough opinion that the "mailbox rule" announced in Houston v. Lack, 487 U.S. 266 (1988) applies to time calculations for purposes of the new statute of limitations. Nevertheless, the court dismissed petitioner’s habeas petition as untimely because he paid the filing fee well after the one year limitation period expired due to two failed attempts to obtain authorization to proceed in forma pauperis.

United States v. Dorsey
988 F.Supp. 917, 919 (D.Md. 1998)
In this §2255 case, the court held that a conviction becomes final for purposes of the new statute of limitations "on the date that a petitioner can no longer pursue direct appeal," i.e., the date on which certiorari is denied or on which the time for seeking certiorari expires. Additionally, the court treated petitioner’s motion "as filed when it was delivered to prison authorities for forwarding by depositing it in the prison mailbox."

Parker v. Johnson
998 F.Supp. 1474, 1475-76 (N.D.Ga. 1998)
In this non-capital habeas case, the court held that a "one year grace period from enactment of the AEDPA is a reasonable time in which to file a habeas petition." The court also held that, pursuant to §2244(d)(2), a properly filed application for state collateral review tolls the statute of limitations with respect to all claims both exhausted on direct appeal and unexhausted. In this case, petitioner never sought direct review, and his conviction became final on February 21, 1996. On April 23, 1997 -- the last day of the grace period -- petitioner filed a petition containing both exhausted and unexhausted claims. Thus, were the court to dismiss the petition as mixed all of the exhausted claims in the petition would be instantly time-barred. Rather than bringing about this drastic result, the court held the petition in abeyance for 45 days to allow petitioner to amend in to delete the unexhausted claims, and informed petitioner that he could seek state habeas review of those claims, but would be time-barred from subsequently seeking federal review.

Shariff v. Artuz
1998 WL 17734 at *3 (S.D.N.Y. Jan. 16, 1998)
Acknowledging that district courts in the Second Circuit have dismissed numerous petitions as untimely under Peterson v. Demskie, 107 F.3d 92 (2nd Cir. 1997), despite the fact that they were filed within one year of the passage of the AEDPA, the court denied the state’s motion to dismiss this petition, which was filed on April 22, 1997 to challenge a 1982 conviction. The court expressed its belief that "the [Second Circuit] intended the district courts to apply Peterson with a sense of equity and fairness in mind, and that in rare cases a full year could be accorded if justice so requires." Here, the court was influenced by "the consistent personal diligence of [petitioner] in attempting to have his lawyers file this petition." Petitioner supplied the court with a detailed record indicating that he had retained counsel five years earlier and had been consistently prodding them to file his petition ever since. In addition, petitioner provided evidence that his transcripts and records had been destroyed in a prison flood, that it took him three years to replace them, and that he had been hospitalized at least twice, which kept him from participating in the preparation of his petition. Thus, the court concluded that, "[i]n the totality of circumstances, this Court believes that justice requires a finding that the petition is timely."

Alexander v. Keane
991 F.Supp. 329, 334 (S.D.N.Y. 1998)
In footnote 1, the court stated that "[t]he timeliness of a prisoner filing is measured from the date the papers were given to prison authorities for mailing." Additionally, in footnote 2, the court rejected the state’s contention that "the statute of limitations begins to run from the time the Court of Appeals affirmed the conviction without adding the ninety days in which a petition for certiorari could have been filed."

Harris v. United States
1998 WL 63459 at *2 (S.D.N.Y. Feb. 17, 1998)
In a sua sponte order, the district court announced its belief "that the limitations the AEDPA imposes upon habeas petitions, including those of time, are jurisdictional by their nature, or at least in their practical effect. . . . Accordingly, although the government has not urged the AEDPA’s time limitation as a bar to [petitioner]’s petition, I conceive it to be my duty to raise the issue sua sponte." After discussing the potential factors bearing upon a determination of timeliness, the court ordered the parties to address the question in writing.

United States ex rel. Galvan v. Gilmore
997 F.Supp. 1019, 1026 (N.D.Ill. 1998)
The court found that, "since §2244(d) [the statute of limitations] does not affect this court’s subject matter jurisdiction over habeas petitions, . . ., the state can waive the . . . timeliness issue by failing to raise it." Here, the court found the statute of limitations waived because the state failed to raise it.

Baskin v. United States
998 F.Supp. 188, 189 (D.Conn. 1998)
Addressing the timeliness of petitioner’s §2255 motion, the court stated that, "[w]here a request for a writ of certiorari from the United States Supreme Court has been denied, the limitation period begins to run from that denial," and found that "[t]he AEDPA’s statute of limitations is subject to equitable tolling." In this case, petitioner’s cert petition was denied on November 17, 1995, but petitioner’s counsel did not inform him of the denial until December, 1996, and petitioner did not file his §2255 motion until August, 1997. On these facts, the court rejected the government’s statute of limitations defense, finding that "[i]t would be grossly inequitable to bar petitioner’s ineffective assistance of counsel claim on the basis that counsel’s error permitted the statute of limitations to run."

Henderson v. Johnson,
1 F.Supp.2d 650, 653 (N.D.Tex. 1998)
The court held "that §2244(d)(1) is a statute of limitations that is subject to equitable tolling, not a jurisdictional bar," and that tolling is available when the petitioner "meets the high hurdle of showing (1) extraordinary circumstances (2) beyond his control (3) that made it impossible to file his petition on time." The court also set forth a nonexhaustive list of eight factors to "enable the court to address the tolling issue using a framework that clarifies the more abstract aspects of the general rule."

Williams v. Vaughn
3 F.Supp.2d 567 (E.D.Pa. 1998)
The court held that under Habeas Corpus Rule 11 and 28 U.S.C. §2242, petitioner’s amendments to his petition relate back to the date the original petition was filed because "both petitions [original and amended] allege constitutional defects surrounding the same ‘occurrence’ -- petitioner’s trial and penalty phases . . ." 3 F.Supp.2d at 570. The court went on to conclude that the petition would have to be dismissed because it contained both exhausted and unexhausted claims. However, in light of potential statute of limitations problems, the court dismissed the petition "without prejudice to petitioner’s right to file a second amended petition after exhaustion," and made clear that the "filing of such a second amended petition would . . . relate back to the original filing date of the habeas corpus petition . . ." 3 F.Supp.2d at 578. See also Morris v. Horn, 1998 WL 150956 at *4 (E.D.Pa. March 19, 1998) (employing similar procedure); Williams v. Vaughn, 1998 WL 238466 (E.D.Pa. May 8, 1998) (denying respondents’ motion for relief from judgment; court’s action in dismissing without prejudice not equivalent of holding claim or petition in abeyance; by dismissing petition without prejudice, court relinquished jurisdiction while protecting petitioner’s right to refile against possible statute of limitations if state court exhaustion petition were found to be not "properly filed.")

United States ex rel. Washington v. Gramley,
1998 WL 171827 at *3 (N.D.Ill. April 10, 1998)
In footnote 3, the court noted that petitioner’s second state post-conviction application would not have tolled §2244(d)’s limitations period because it was "dismissed on the grounds of waiver" and was therefore not "properly filed." Additionally, the court held that the mailbox rule does apply to prisoner habeas petitions and determined that the mailbox rule, not Rule 3(b) of the Rules Governing §2254 Cases, should be used to establish the "substantive filing date of a habeas petition" for statute of limitations purposes. Thus, the court concluded that "Habeas petitions are filed when they are given to prison officials for mailing, whether they are accompanied by a filing fee, a meritorious IFP petition or one that is not."

Giles v. United States
6 F.Supp.2d 648, 649 (E.D.Mich. 1998)
The court held that the statute of limitations is jurisdictional. The court explained that the "AEDPA was enacted primarily to put an end to the unacceptable delay in the review of prisoners’ habeas petitions. . . . Therefore, in order for the AEDPA to succeed in its clear congressional purpose, this Court finds that the limitations provision is jurisdictional in nature." Thus, "even though the government did not assert the limitations period as a defense, it cannot be waived." The court therefore dismissed petitioner’s §2255 motion.

United States ex rel. Gonzalez v. DeTella,
6 F.Supp.2d 780, 782 (N.D.Ill. 1998)
The court rejected petitioner’s contention that the statute of limitations was tolled during the ninety day period in which he could have sought certiorari review in the United States Supreme Court of the state appellate court’s refusal to grant leave to appeal the denial of post-conviction relief. Rather, the court held that "a post-conviction petition is properly considered ‘pending’ while review of its denial is pending before a state court."

United States v. Timber
7 F.Supp.2d 1356, 1361 (N.D.Ga. 1998)
The court adopted the Second Circuit approach to timeliness under §2244(d) that "the determination of whether a [§2255] motion was filed within a reasonable time after the effective date of the AEDPA should be made based upon the unique facts and circumstances of each case."  Editor’s note: The Second Circuit has since held that all prisoners whose convictions became final prior to passage of the AEDPA should be accorded a one year grace period in which to file habeas petitions. See Mickens v. United States, 148 F.3d 145, 148 (2nd Cir. 1998)

Freeman v. Kaylo
1998 WL 252144 at *1 (E.D.La. May 15, 1998)
The court denied petitioner’s attempt to amend his §2254 petition to add a new claim of ineffective assistance of appellate counsel, explaining as follows:

28 U.S.C. §2244(d)(1) requires that a petitioner bring any and all §2254 claims within one year of the date that his conviction became final. To permit petitioner to amend and add a claim that is completely unrelated to any advanced in his pending application would effectively defeat the time limitations imposed by the AEDPA.

It is unclear at what point in the proceedings petitioner sought to amend the petition. However, it appears from the first paragraph of the court’s order that the attempt to amend may have been made subsequent to the magistrate’s issuance of a report and recommendation.

Davis v. Johnson
8 F.Supp.2d 897, 900 (S.D.Tex. 1998), aff’d, 158 F.3d 806 (5th Cir. 1998), cert. denied, 119 S.Ct. 1474 (1999)
After explaining that the death-sentenced petitioner’s habeas petition should be time-barred because he failed to file it until approximately one year after expiration of the extension previously granted, the court proceeded to the merits stating:

Timing rules work both ways: if the state wants to kill a man because his filings are not on time, it should raise that issue promptly. If limitations applies to Davis, laches should apply to Johnson. Johnson waited until May 1998 to raise a point it knew of in May 1997. Responsible government's prompt objection would have saved everyone time and trouble, especially since the court, Davis, and Johnson are funded by the taxpayers. Because the government's taking a person's life should invoke the most awesome governmental accountability, the court will address the merits of the petition in an abundance of caution.

Neal v. Ahitow
8 F.Supp.2d 1117, 1119-20 (C.D.Ill. 1998)
On reconsideration of its previous order dismissing petitioner’s §2254 petition, the court found that "once a post-conviction relief petition is initially filed in State court then that petition is ‘pending’ for purposes of section 2244(d)(2) as long as the state court or the state post-conviction procedures allow for review. . . . Accordingly, although Petitioner allowed over nine months to elapse after the Illinois Appellate Court reviewed his post-conviction relief petition before he sought leave to appeal to the Illinois Supreme Court, his petition was still ‘pending’ within the meaning of section 2244(d)(2) since the Illinois Supreme Court ultimately granted Petitioner leave to appeal."

Harris v. United States
9 F.Supp.2d 246, 250 (S.D.N.Y. 1998)
The court first referred to its earlier order in this case, which found the statute of limitations to be jurisdictional, then noted that petitioner did file a petition for certiorari with the Supreme Court, which was denied on October 7, 1996, and concluded that petitioner’s conviction became final for purposes of the statute of limitations on that date.

Davis v. Keane
9 F.Supp.2d 391, 392-93 (S.D.N.Y. 1998)
The court held as follows with regard to when a state post-conviction petition is "pending" for purposes of §2244(d)(2):

This Court finds that the plain language of Section 2244(d)(2) as well as basic policies underlying federal habeas review of state convictions both support excluding time from the date that the application for state collateral review or post-conviction relief is properly filed until such time as the application is finally decided, including time while an appeal of the application is pending. A common sense interpretation of the word "pending" is that it encompasses the pendency of both the initial filing for state collateral review as well as the appeal of the denial of any such application. Moreover, two of the overriding policy goals of limitations on the availability of federal habeas relief--the encouragement of state court exhaustion and the discouragement of successive petitions -- also support excluding time until state collateral review is decided finally upon appeal.

Ellis v. Johnson
11 F.Supp.2d 695, 698 (N.D.Tex. 1998)
After noting that "Texas sets no limits on the number of applications for writ of habeas corpus which may be filed," and that "[s]tate law does not prohibit relief in subsequent habeas applications," the court concluded "that Petitioner’s second state application was properly filed for purposes of the tolling provision even though it was later dismissed for his failure to include all of his claims in his first application."

Kethley v. Berge
14 F.Supp.2d 1077, 1078 (E.D.Wis. 1998)
The court dismissed petitioner’s §2254 petition, which had been dormant in the federal district court for three years, for failure to exhaust all available state remedies. However, citing the possibility that petitioner would be time barred by the statute of limitations if he returned to federal court after exhaustion, the court allowed petitioner to "retain the benefit of the present case number and filing date when his file is reopened."

Peterson v. Brennan
1998 WL 470139 (E.D.Pa. Aug. 11, 1998)
After concluding that petitioner may still have state remedies available in Pennsylvania, and that his petition must therefore be dismissed as mixed, the court ruled as follows concerning petitioner’s return to state court and the availability of subsequent federal review:

in order to avoid potential problems with respect to the tolling of the AEDPA's statute of limitations during the pendency of the PCRA proceedings, the Court will dismiss the Petition without prejudice to petitioner's right to file an amended petition after exhaustion of state remedies. The filing of such an amended petition would, pursuant to Federal Rule of Civil Procedure 15(c)(2), relate back to the original filing date of the habeas corpus petition because "the claim ... asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth in the original pleading." Fed.R.Civ.P. 15(c)(2).

Robinson v. Day
1998 WL 524895 (E.D.La. Aug. 19, 1998)
The court dismissed petitioner’s §2254 petition as untimely, finding that, although his state post-conviction application was pending until shortly before he filed his federal petition, the state petition did not toll the limitations period because it was untimely under state law, and therefore not "properly filed" within the meaning of §2244(d)(2). The court further rejected petitioner’s argument that he should not be penalized for filing the untimely state post-conviction application after the district court dismissed his first habeas petition for failure to exhaust that remedy.

United States v. Feinberg
1998 WL 547284 (N.D.Ill. Aug. 27, 1998)
Petitioner’s federal conviction became final for purposes of the one year limitations period when the Supreme Court denied his petition for certiorari, and therefore his §2255 petition was not untimely.

United States ex rel. Hardy v. Washington
1998 WL 603276 at *1 (N.D.Ill. Sept. 9, 1998)
The court held that "at least where the petitioner actually files a petition for a writ of certiorari . . ., the one-year clock in §2244(d)(1)(A) begins to run when the United States Supreme Court denies a §2254 petitioner’s [cert.] petition . . ., as the case is alive until [then]."

Joyner v. Vacco
1998 WL 633664 at *3 (S.D.N.Y. Sept. 15, 1998)
The court defined "properly filed" as used in §2244(d)(2) as follows: "to be ‘properly filed’ under AEDPA the state application for collateral review must do no more than comply with procedural filing requirements, such as requirements that it be timely filed, be submitted in the proper forum, and include notice to the respondents."

Housley v. United States
1998 WL 668115 at *1-2 (M.D.Fla. Sept. 21, 1998)
The court held that, under the one year limitation period applicable to §2255 motions, petitioners whose convictions became final prior to passage of the Act, and who file on or before April 24, 1997, are not time-barred. In reaching this conclusion, the court acknowledged the Eleventh Circuit’s indication in Goodman v. United States, 151 F.3d 1335 (11th Cir. 1998), that the one-year grace period runs until April 23, 1997, but noted that the court arrived at that date with "no analysis," and that the precise date the period should end was not before the court of appeals in that case. Because the petitioner in this case filed on April 24, 1997, however, the question was squarely presented, which required the court to "look further to determine when the one year period ends." That inquiry led the court to follow the Fifth Circuit’s decision in Flanagan v. Johnson, 154 F.3d 196 (5th Cir. 1998), which relied on F.R.Civ.P. 6(a) to find that the one year period should exclude April 24, 1996, the date of enactment, and include April 24, 1997, as the last day of the year.

Alves v. Matesans
20 F.Supp.2d 135, 136-137 (D.Mass. 1998)
The court adopted the "bright line" rule that "where a prisoner’s conviction became final at anytime prior to April 24, 1996, he has one year from that date to file a petition for habeas corpus relief." Id. at* 2. The court also adopted the mailbox rule for pro se habeas petitions filed by prisoners.

Souch v. Harkins
21 F.Supp.2d 1083, 1088 (D.Ariz. 1998)
The court held that a state post-conviction application need not be free from procedural default in order to be considered "properly filed" within the meaning of §2244(d)(2). Explaining that "procedural default does not govern the issue of whether the petition was "properly filed," the court joined the majority of other courts that have addressed the issue, and held that petitioner’s application was "properly filed" because it complied with Arizona’s technical filing requirements, such as time, place and form of filing.

Gaines v. Newland
1998 WL 704418 at *2-3 (N.D.Cal. Oct. 6, 1998)
The court dismissed petitioner’s pro se §2254 petition as untimely. Petitioner had given the petition to prison authorities twenty-seven days before it was due with instructions to withdraw the filing fee from his prison account if the account contained enough money and mail the petition and fee to the court for filing, or, if petitioner did not have enough money, to mail the petition to his grandmother in an envelope he provided. Rather than acting on these instructions, however, the prison waited nearly sixty days before sending the petition to petitioner’s grandmother after determining that he did not have the necessary funds in his prison account. The district court refused petitioner’s request to apply the mailbox rule in these circumstances because "petitioner asked prison authorities to accomplish other tasks before mailing his petition," and because "it was his responsibility to follow-up on the status of the petition and to determine its whereabouts and ensure that it would reach th[e] court in a timely manner".

Stokley v. Stewart
No. CIV 98-332-TUC-FRZ (D.Ariz. Oct. 13, 1998)
In this Arizona capital case, the court held that petitioner’s "bare bones" initial federal habeas petition was sufficient to stop the clock for purposes of §2244(d). The petition, which was filed pro se, alleged that petitioner was being held in violation of the his federal constitutional rights, and incorporated by reference the federal issues addressed in his direct appeal, a copy of which was attached to the petition. Explaining its decision, the court said:

Under 28 U.S.C. §2244(d)(1)(A), as amended by the AEDPA, "an application for a writ of habeas corpus" must be filed within one year of the conclusion of direct review. Nothing in the AEDPA evinces an intent by Congress to change the requirements for a habeas application, the sufficiency of which therefore continues to be judged by the provisions of 28 U.S.C. §2242 and Rule 2(c) of the Rules Governing Section 2254 Cases.

Order at 8. Thus satisfied that petitioner’s pro se petition "stopped the clock," the court also pointed out that Chapter 153 of "[t]he AEDPA placed no new limitations on Petitioner’s right to amend," and stated that, "[i]f and when an amended petition is filed, it will, pursuant to [FRCP] 15(c), relate back to the date of the original petition." Order at 13.
Turning to the operation of the limitations period, the court first held, relying on Arizona law, that petitioner’s conviction did not "become final" within the meaning of §2244(d)(1)(A) until the Arizona Supreme Court issued its mandate ten days after the United States Supreme Court denied certiorari. Next, the court addressed at what point in the state proceedings the limitations period was tolled by a "properly filed application for State post-conviction or other collateral review" pursuant to §2244(d)(2). Looking again to Arizona law, the court explained that a post-conviction proceeding in a capital case is commenced with the automatic filing of a notice of post-conviction relief by the Arizona Supreme Court upon issuance of its mandate on direct appeal. This filing, in turn, triggers the right to appointed counsel and the requirement that a complete petition be filed within a specified period of time. The court rejected the state’s contention that, under this scheme, only the filing of the completed petition can trigger tolling under §2244(d)(2). The court explained:

[T]he text of 28 U.S.C. §2244(d)(2) contains no language requiring that a "properly filed application for state post-conviction or other collateral review" contain only substantive, colorable claims. Nor does the statute set forth requirements for a specific form or document constituting an application. Rather, the plain wording of §2244(d)(2) indicates that the statute of limitations is tolled once a prisoner applies for state post-conviction review of his conviction or sentence, provided such application is "properly filed." The court finds no ambiguity in the term "application."

* * *

[T]he term "application" must be given content by looking to state law to determine how a prisoner applies for post-conviction relief.

Order at 17-18 (emphasis in original). Thus, the court held that the statute of limitations was tolled beginning on January 26, 1996, the date on which his notice of post-conviction relief was filed.
Finally, the court found that in any event extraordinary circumstances entitled petitioner to equitable tolling of the limitations period. The court cited the three month delay in appointing state post-conviction counsel notwithstanding state law entitling petitioner to appointment of counsel within fifteen days, the passage of nine months between appointment of counsel and filing of the PCR petition ("a delay arguably beyond petitioner’s control"), "the lack of clear precedent" on the operation of §2244(d), and the "absence of prejudice" to the state. Order at 21.

Finfrock v. Mack
1998 WL 823103 at *1 (S.D.Ohio Nov. 16, 1998)
Interpreting "properly filed" as that term is used in §2244(d)(2), the court observed that it "must have reference to state law, since there are no federal standards to determine when something is properly filed in a state court." The court explained that "properly filed" in this context "would seem to mean that a petitioner must both have followed proper state procedure for filing whatever was filed . . . and that the filing was one in which the petitioner could properly obtain collateral review of the state conviction, i.e., that the petitioner chose a form of proceeding before the state courts in which collateral review could be provided." In this case, because petitioner’s mandamus and declaratory judgment actions satisfied the first of these requirements, but not the second, the court refused to exclude the time during which they were pending from the limitations period, and dismissed the petition as untimely.

United States ex rel. Morgan v. Gilmore
26 F.Supp.2d 1035 (N.D.Ill. 1998)
The court first rejected as "patently meritless" the state’s contention that the time spent pursuing unsuccessful state court appeals of the denial of state post-conviction relief should not toll the statute of limitations. 26 F.Supp.2d at 1037. The court also found that petitioner’s untimely petition for leave to appeal the denial of his first state post-conviction application did not toll the limitations period. Finally, the court concluded that petitioner’s second (and therefore successive) state post-conviction application did toll the statute of limitations, explaining that "principles of comity dictate that this court allow the state court an opportunity to consider the merits of a successive state post- conviction petition prior to the institution of federal habeas proceedings, even if that petition is procedurally barred and thus is frivolous as of the time it is filed." 26 F.Supp.2d 1041.

Jells v. Mitchell
No. 1:98CV2453 at 4 (N.D.Ohio Dec. 1, 1998)
Granting petitioner’s Motion to Clarify the Statute of Limitations and Set Date for Filing Habeas Petition in this Ohio capital case, the district court rejected the state’s contention that the issue was not properly before the court because no habeas petition had yet been filed. Rather, noting that notice of intent to seek habeas relief had been filed, and counsel for both sides had entered appearances, the court concluded that "the future filing of a petition for writ of habeas corpus is nearly certain," and therefore "an actual controversy exists".

United States v. Hatala
29 F.Supp.2d 728, 731 (N.D.W.Va. 1998)
The court held "that the mailbox rule should be extended to §2255 motions." Applying the rule, the court concluded that petitioner’s §2255 motion was timely filed.

Blasi v. Attorney General of the Commonwealth of Pennsylvania
30 F.Supp.2d 481, 486 (M.D.Pa. 1998)
The court held that the filing of an application for state collateral review tolls the statute of limitations both for the claims presented in collateral proceedings and any claims previously exhausted on direct appeal. Id. at *4. The court also appeared to extend the period during which the statute of limitations would be tolled under §2244(d)(2) to include the ninety days in which petitioner could have sought certiorari review by the U.S. Supreme Court, stating: ". . . the statute did not begin to run until 90 days after allocatur was denied on appeal from denial of the PCRA petition".

Fadayiro v. United States
30 F.Supp.2d 772, 778 (D.N.J. 1998)
The court held that a federal judgment of conviction becomes final for purposes of calculating the limitations period for filing a §2255 motion on the date the conviction is affirmed by the circuit court on direct appeal. The court thus rejected petitioner’s contention that convictions should not be deemed "final" until the ninety day period in which to file a petition for certiorari expires, reasoning that "[e]xtending the time in which to file a petition . . . to the date of denial of certiorari ignores reality; Supreme Court review is virtually non-existent in these matters." In a footnote at the end of the quoted sentence, however, the court noted that the "rare instances in which the Supreme Court grants certiorari to a habeas petitioner would constitute ‘extraordinary circumstances’ which . . . warrant equitable tolling of the statute of limitations".

Sperling v.White
30 F.Supp.2d 1246, 1251 (C.D. Cal. 1998)
The court held that the time during which a federal habeas petition eventually dismissed for lack of exhaustion is pending counts against §2244(d)’s one year limitations period. In this case, petitioner’s unexhausted habeas petition remained pending in federal court for 316 days before it was dismissed without prejudice -- long enough that, if the time had been excluded from calculation of the limitations period, his present petition would have been timely. The court decided against excluding this time after a lengthy statutory construction analysis of §2244(d)(2)’s "State post-conviction or other collateral review" phrase, which, the court concluded, "plainly does not toll limitations during the pendency of federal habeas petitions." The court further relied on its perception of Congress’ intentions in enacting the AEDPA: "Allowing tolling during the pendency of federal petitions would permit a petitioner to toll indefinitely the statute of limitations through the stratagem of filing a series of unexhausted petitions in federal court. The object and policy the AEDPA's statute of limitations would not be served if the Court were to read into the statute such an invitation to abuse".

Vincze v. Hickman
1999 WL 68330 at *1-2 (E.D.Cal. Jan. 13, 1999)
The district court dismissed petitioner’s §2254 petition as untimely, concluding that "the statutory tolling provision set forth in Section 2244(d)(2) does not toll the period during the pendency of petitioner’s first federal habeas petition." In this case, the first petition was filed on May 12, 1994 and dismissed over two years later on September 3, 1996 for failure to exhaust state remedies. While the second petition would have been timely under §2244(d) if the time between passage of the Act and dismissal of the first petition were not counted, the court found this approach unacceptable. The court explained: "To interpret that provision to permit tolling while petitioner pursues an unexhausted habeas petition in federal court invites a petitioner to file an unexhausted federal habeas petition in much the same way a quarterback downs a football in the last seconds of a half: to stop the clock, not to advance the ball. That is not what Congress contemplated when it enacted the AEDPA." Finally, the court rejected the magistrate’s recommendation that the limitations period be equitably tolled so as not to penalize petitioner for the court’s delay in dismissing his first petition. The district judge concluded that this "reasoning overstates the impact of court delay on petitioner’s ability to meet the limitations deadline. Petitioner’s failure to meet the deadline . . . was the direct result of his own failure to properly exhaust his state remedies in the first place. He could have exhausted with respect to all of his claims without having to be told by the court to do so".

Duncan v. Griener
1999 WL 20890 at *3-4 (S.D.N.Y. Jan. 19, 1999)
The court held that tolling under §2244(d)(2) applies to cases in which timeliness of the petition is determined by the Second Circuit’s one year "grace period" as provided in Ross v. Artuz, 150 F.3d 97 (2nd Cir. 1998). In so holding, the court rejected the state’s contention that prisoners whose convictions became final prior to the Act are entitled only to a one year, non-tollable grace period.
The court also found that, for purposes of §2244(d)(2), "a ‘properly filed’ post-conviction motion . . . is any post-conviction motion that ‘complies with the state procedural requirements for successive collateral attacks on a conviction such as timeliness and proper place of filing.’ [citation omitted]. In addition, a motion should be considered ‘pending’ under §2244(d)(2) from the time it is first filed until the time a final decision has been made on its merits, including the time it is pending on appeal."
Finally, the court rejected the state’s argument that Stewart v. Martinez-Villareal, 523 U.S. 637 (1998) "stands for the proposition that a petitioner for habeas corpus can bring his ‘ripe’ claims in a first petition and then later bring a second petition raising claims that were not ripe at the time the first petition was brought." The state made this argument in an attempt to demonstrate that six of petitioner’s seven claims were untimely because the limitations period for those claims was not tolled while petitioner pursued a second post-conviction application to exhaust the seventh claim. Apart from its disagreement with the state’s reading of Stewart, the court pointed to the "significant interest in a petitioner’s bringing all of his habeas claims at the same time" as further reason to reject the state’s theory.

Tal v. Miller
1999 WL 38254 at *2-3 (S.D.N.Y. Jan. 27, 1999)
The court granted petitioner’s Rule 60(b) motion to vacate an earlier order dismissing the petition as untimely, concluding that the previous order was erroneous in light of the Second Circuit’s subsequent decision in Ross v. Artuz, 150 F.3d 97 (2nd Cir. 1998). The state had argued that petitioner’s Rule 60(b) motion should have been treated as a second petition, and therefore transferred to the court of appeals for approval. The court rejected this contention on the grounds that petitioner’s motion fits within the criteria for granting such motions as established by the Second Circuit in Sargent v. Columbia Forest Prod., Inc., 75 F.3d 86 (2nd Cir. 1996), and because "it can be argued that the Rule 60(b) motion [in this case] is more akin to a subsequent petition after state court remedies have been exhausted. It is in fact the same petition with the untimeliness argument now eliminated by the subsequent decision of the Court of Appeals in Ross." The court further found the state’s argument foreclosed by Mickens v. United States, 148 F.3d 145 (2nd Cir. 1998), which reversed a district court’s denial of a Rule 60(b) motion seeking reconsideration on the ground that, like petitioner in this case, the petitioner had filed his §2255 motion within a year of the AEDPA’s effective date.

Harrison v. Galaza
1999 WL 58594 at *2 (N.D.Cal. Feb. 4, 1999)
The court dismissed petitioner’s §2254 petition as untimely after concluding that the 338 days during which his initial, unexhausted petition was pending before the federal court could not be excluded from the limitations period.  Although the court appeared to recognize that the petition would be timely if petitioner were given credit for the ten and a half months during which the court allowed his unexhausted petition to remain pending, it concluded that §2244(d) does not allow such credit to be given: "The running of the limitation period is not tolled, as petitioner contends, for the time period during which a properly filed application for post-conviction or other collateral review is pending in federal court. . . . Allowing petitioners to circumvent §2244(d)(2) by improperly filing unexhausted petitions in federal court does not serve the object and policy of the AEDPA".

Hudson v. Jones
35 F.Supp.2d 986, 988 (E.D.Mich. 1999)
The court rejected the state’s contention that the time between stages of state post-conviction litigation should be counted against petitioner’s one year limitations period, concluding instead that petitioner was entitled to continuous tolling pursuant to §2244(d)(2) from initial filing of the state post-conviction application through final review by the state’s highest court.

Patterson v. Director, Virginia Dept. of Corrections
36 F.Supp.2d 317, 320 (E.D.Va. 1999)
The court adopted the reasoning of the Third Circuit in Lovasz v. Vaugh, 134 F.3d 146 (3rd Cir. 1998), which held that, for purposes of §2244(d)(2), "a ‘properly filed’ petition is ‘one submitted according to the state’s procedural requirements, such as rules governing time and place of filing,’ . . . without regard to the merits of the petition." The court therefore held that the limitations period was tolled during the time in which petitioner’s two successive state habeas petitions were pending, and that his federal habeas petition was not untimely.

Matthews v. Abramajtys
39 F.Supp.2d 871 (E.D.Mich. 1999)
The district court held that "[a]ssuming that an application [for state post-conviction relief] is properly filed under the state court’s procedural rules, it remains ‘pending’ during the intervals between stages of the state court proceedings" for purposes of calculating the statutory tolling available under §2244(d)(2). To hold otherwise, the court explained, would mean that "a person could be foreclosed from seeking federal habeas relief despite having complied with all of a state’s procedural rules in the course of exhausting state court remedies".

Triggs v. Cain
1999 WL 127249 at *2 (E.D.La. Mar. 8, 1999)
In the course of dismissing petitioner’s §2254 petition as untimely, the court noted that "[a] ‘properly filed application’ [as that term is used in §2244(d)(2)] is one submitted according to the state’s procedural requirements, such as rules governing the time and place of filing." (citing Lovasz v. Vaughn, 134 F.3d 146, 148 (3rd Cir. 1998)).

United States ex rel. Giangrande
1999 WL 184184 (N.D.Ill. Mar. 29, 1999)
The court found that petitioner’s otherwise untimely petition was timely under §2244(d)(1)(C), which triggers the start of the one year limitation period on "the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review." 1999 WL 184184 at *3. The new rule identified by the court as satisfying §2244(d)(1)(C) was the Supreme Court’s decision in Bracy v. Gramley, 520 U.S. 899 (1997), where the Supreme Court remarked that "compensatory, camouflaging bias" on the part of a corrupt judge "would violate the Due Process Clause . . ." Bracy, 520 U.S. at 905. This rule was implicated in petitioner’s case because petitioner himself was convicted by the same judge who convicted the petitioner in Bracy.
Rejecting the state’s arguments that Bracy did not announce a new rule, the court acknowledged that the general right to trial by an impartial decisionmaker has deep roots in this country, but went on to conclude that, in light of the Seventh Circuit majority’s conclusion that the rule sought in Bracy itself was barred by Teague v. Lane, the Supreme Court’s subsequent decision in Bracy’s favor did announce a new rule. The court further found that this new rule is retroactively applicable under Teague because it "require[s] the observance of those procedures that are implicit in the concept of ordered liberty," 1999 WL 184184 at *6 (quoting Teague, 489 U.S. at 307), and under §2244(d)(1)(C) because the Supreme Court itself applied the rule in Collins v. Welborn, which was on collateral review at the time.

Diaz v. Mantello
___F.Supp.2d___, 1999 WL 258485 (S.D.N.Y. April 29, 1999)
The district court held that "the tolling provision of section 2244(d)(2) of the AEDPA applies to those petitions covered by the one-year grace period announced in Ross [v. Artuz, 150 F.3d 97 (2nd Cir. 1998)].

. . . .Problem? The appellate attorneys have screwed up, too. Before  Paul Strandness, attorney for the plaintiffs, can finish a  sentence, Justice Rehnquist asks him to talk about a  case—Neely vs. Martin K. Eby—that is directly on  point. Both lawyers will be pilloried today for failing to  properly address Neely in their briefs. Strandness promises  the chief justice he will talk about Neely and proceeds not  to do so. He is attempting to argue that the courts of  appeals should not have the discretion to decide any case  with finality based on a "truncated record." Justice Ginsburg  finally asks whether he really means to be arguing that  courts should be taking inadmissible evidence into account  when making sufficiency of the evidence determinations.

I look to the right.

The usual flurry of activity is taking place on the right side  of the bench. At the far right sits Justice Breyer, bearing a  startling resemblance to The Simpsons' Montgomery Burns. The  best analogue for what goes on with Breyer's constantly  moving hands would need to be "vogueing." À la Madonna.  Circa 1985. Breyer alternately covers his forehead with his  hand, cups his chin with his hand, or clutches his head with  his hand. Sometimes he does this all at once. As he does so,  he offers multilevel hypotheticals—numbering his own  points—including a four-parter this morning which he  ends with: "So. Those are all my questions. And what is your  answer?"

Next to Justice Breyer sits Clarence Thomas. Who does not  speak. At least not to the lawyers. At 11:01 a.m. he whispers  to Breyer and they both smile. At 11:04 he leans back in his  chair with his eyes closed. At 11:09 he and Breyer are again  engaging in a spirited conversation about something; they  involve the marshal's aide behind them at one point. At 11:12  Justice Thomas is whispering to Justice Kennedy, who sits on  his right.

It is distracting to the justices when people in the gallery  take notes.

Justice Kennedy is the only one of the nine who looks like a  regular guy. By this I mean that I can easily imagine him  with barbeque tongs in hand. (I can imagine O'Connor with a  pastry crimper, but even that is a stretch for me.) Kennedy  shares Thomas' propensity to rock back and forth in the Big  Chair. Sometimes they rock together. At 11:39 this morning,  he and Thomas are going in perfect syncopated rhythm. They  are like the Rockettes up there. Attorney Strandness tries  not to notice as he answers Justice Scalia's question.

I look to the left.

On the left side of the bench sits Ruth Bader Ginsburg,  sphynxlike. She moves almost not at all during oral argument  but fixes her eyes steadily on the attorney addressing the  court. Her stillness runs over into the stillness of Justice  Souter, who sits to her left. Like Ginsburg, Souter neither  fiddles with papers, chugs water, nor boogies in the Big  Chair during argument. Souter is blessed with that wonderful  1920s New England drawl, which lets him say "lawr" when he  means "law" and "era" when he means "error." He does not chat  with Justice Scalia, who sits to his left.

Justice Scalia is subdued today. Whereas Justice Stevens is  positively gleeful as he tortures Christine Hogan,  attorney  for the heater makers, for failing to call the court's  attention to Neely. "I guess you didn't find it until later,"  he crows.

"That may be true," she concedes. . . . .

DISPATCHES Supreme Court Dispatches By Dahlia Lithwick
Vogueing at the Supreme Court [http://slate.msn.com/dispatches/99-11-09/dispatches.asp]
 

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ISSN: 1523-6684   Volume III, issue 3