CHAPTER 3 THE STATUTE OF LIMITATIONS
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Chapter 3 The Statute of Limitations
The filing of a habeas petition that might ultimately secure one's release from prison presents a bit of a Goldilocks problem for a state prisoner—the petition can't be too early and it can't be too late; it must be just right. The doctrine of exhaustion (discussed in Chapter 8) dictates that a federal habeas petition will be deemed premature, or the claims therein unexhausted, if it is filed in federal court before the state court system has had a full opportunity to adjudicate the claims. A statute of limitations, by contrast, dictates that a prisoner who delays too long in filing his federal habeas petition also will be ineligible for federal relief. This chapter discusses the issues raised by the federal statute of limitations and the exceptions to the statute of limitations.
Many scholars and judges have questioned the equity of a habeas corpus statute of limitations insofar as such a limitation could serve as a permanent barrier to prisoners whose convictions in fact rest on unconstitutional practices. For most of the Writ's history, there was no formal time limitation for the filing of a habeas corpus petition. So long as the State could not prove undue prejudice from the delay, a prisoner was permitted to seek habeas corpus review. But the longstanding practice of refusing to allow claims challenging the constitutionality of a conviction or sentence to expire became increasingly unpopular in the latter half of the twentieth century.1 For decades there were concerted legislative efforts to impose a statute of limitations. In Vasquez v. Hillery, 474 U.S. 254, 265 (1986), for example, the Court commented that "despite many attempts in recent years, Congress has yet to create a statute of limitations for federal habeas corpus actions." And in an appendix to its opinion in Lonchar v. Thomas, 517 U.S. 314 (1996), the Court listed more than 80 bills proposing statutes of limitations for federal habeas cases that Congress had introduced but had not adopted over the previous ten years.
Proponents of a statute of limitations finally succeeded when in 1996, as part of the Anti-Terrorism and Effective Death Penalty Act (AEDPA), a one-year statute of limitations was imposed on the filing of a federal habeas petition.
Section 2244(d)(1) provides for a "1-year period of limitation" within which a state prisoner must seek federal habeas corpus review.2 The one-year statute of limitations begins to run from the "latest of" four circumstances enumerated in the statute:
A. [T]he date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.
B. [T]he date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action.
C. [T]he 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.
D. [T]he date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
Notes
1. Rationale
The Conference Committee Report provides the following explanation for the Act's statute of limitations:
This title incorporates reforms to curb the abuse of the statutory writ of habeas corpus, and to address the acute problems of unnecessary delay and abuse in capital cases. It sets a one year limitation on an application for a habeas writ and revises the procedures for consideration of a writ in federal court.
H.R. Rep. No. 104-518, at 111 (1996) (Conf. Rep.). Who among their constituents would most likely be concerned about "unnecessary delay and abuse in capital cases"? Is it a reasonable concern?
2. Finality of conviction
The first trigger for the statute of limitations listed above (§2244(d)(1)(A)) applies in the vast majority of federal habeas cases. Under this provision, the one-year statute of limitations is understood to commence from the date when the conviction becomes final. Generally, this dictates two conclusions: (i) the time for seeking direct review does not count against the one-year limit; and (ii) a conviction becomes final when the United States Supreme Court denies certiorari on direct review. If, however, the defendant does not seek certiorari, then the judgment is said to be "final" and the statute of limitations runs from the deadline for seeking certiorari in the Supreme Court. Stated another way, "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." Smith v. Bowersox, 159 F.3d 345, 348 (8th Cir. 1998).
3. Brady violations
In Chapter 5, the cognizability of prosecutorial misconduct on habeas review— including the failure to disclose exculpatory evidence—is discussed. Assuming that a petitioner has a colorable Brady claim but the prosecutor's failure to disclose does not become apparent until after the conviction has become final, has the statute of limitations expired? How should a court calculate the statute of limitations in these circumstances? Is it also plausible to argue that a Brady violation is a state-created "impediment" to filing a state post-conviction petition?
4. State-created impediments to filing for relief
What sort of state action is required in order to delay the running of the statute of limitations under this statutorily enumerated exception to the normal operation of the one-year limit? Section 2244(d)(1)(B) has been limited primarily to instances of "direct interference" such as when a state denies the prisoner access to legal materials. See Shannon v. Newland, 410 F.3d 1083, 1087 (9th Cir. 2005) (observing that most of the §2244(d)(1)(B) cases are of this genre). On the other hand, courts have recognized the possibility of broader application of this provision by noting that "the word 'impediment' is not defined in the statute itself, nor is it self-elucidating." Wood v. Spencer, 487 F.3d 1, 6 (1st Cir. 2007).
5. Retroactively applicable
Section 2244(d)(1)(C) provides that the one-year limitation period begins to run "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." What if a new right is recognized but the right is not expressly made retroactive for another year? In such a case, when does the statute of limitations begin to run for a prisoner? Applying similar statutory language from §2255, the Supreme Court has held:
We believe that the text ... settles this dispute. It unequivocally identifies one, and only one, date from which the 1-year limitation period is measured: "the date on which the right asserted was initially recognized by the Supreme Court." We "must presume that [the] legislature says in a statute what it means and means in a statute what it says there." . . . An applicant has one year from the date on which the right he asserts was initially recognized by this Court.
Dodd v. United States, 545 U.S. 353, 357 (2005).
6. Opt-in provisions—a shorter statute of limitations
In addition to the new one-year limitation, AEDPA provides for "Special Habeas Procedures in Capital Cases," which, among other things, impose an even shorter statute of limitations (180 days) if the state satisfies certain conditions. 28 U.S.C. §§2261-2266. These provisions often are referred to as the opt-in provisions because they establish a sort of quid pro quo for the states: a state can "opt-in" and benefit from the truncated federal statute of limitations (and other benefits) if the state provides competent counsel and related resources during state collateral proceedings. See 28 U.S.C. § 2261(b) and (c) (setting forth the requirements that states must meet in order to opt-in).
Although several states have attempted to qualify for opt-in status, federal courts have read the opt-in requirements strictly and to date only Arizona's system has been deemed adequate. See Spears v. Stewart, 267 F.3d 1026, 1041-42 (9th Cir. 2001) (recognizing that Arizona's system facially qualified for opt-in status but that it was inadequate as applied). Presently, even Arizona's system has not qualified for the special benefits of opt-in status.
Even after the one-year limitation is triggered by one of the four circumstances set forth in 28 U.S.C. § 2244(d)(1), that provision is softened considerably by the statutory tolling language of 28 U.S.C. § 2244(d)(2). The relevant language provides that "[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection." The critical issue, of course, is what is a "properly filed" state post-conviction petition.
There is substantial agreement among lower courts that ministerial events distinct from the merits of the case do not constitute a "properly filed" petition. For example, a prisoner's request for appointment of post-conviction counsel in state court has been roundly regarded as insufficient to toll the federal statute of limitations. See Doyle v. Archuleta, No. 10-1013, 2010 U.S. App. LEXIS 6744 (10th Cir. Mar. 31, 2010) ("[n]either a request for counsel, nor...
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