The Final Countdown: Using Resentencing as Final Judgment in the Post-AEDPA Era.

• Date: 01 January 2019
• Author: Ciechanowski, Hanna J.

"'[A] claim-by-claim approach is necessary in order to avoid results that we are confident Congress did not want to produce.' ... [I]f the [Eleventh Circuit] was correct on Congress's intentions in AEDPA, then a 'late-accruing federal habeas claim ... [would] open the door for' ... a perverse incentive for potential habeas petitioners with otherwise time-barred constitutional claims to violate the terms of their sentence." (1)

1. Introduction

   Throughout our Nation's history, rights provided for in the Constitution have allowed criminal defendants to petition for a writ of habeas corpus, seeking release from detention following unlawful arrest. (2) Although differing from its original form, the "Great Writ" is continually recognized as a last resort for defendants who believe they were wrongfully convicted. (3) Many laws impacted habeas petitions over the years, but none more so than the Antiterrorism and Effective Death Penalty Act (AEDPA). (4) In 1996, Congress passed AEDPA in an attempt to deter terrorism, provide justice for victims, and create a more effective death penalty. (5) AEDPA also imposed new restrictions on the federal habeas corpus laws, such as a bar upon multiple petitions and a one-year statute of limitations period. (6)

   Recently, in Woodfolk v. Maynard,, (7) the Fourth Circuit acknowledged the split regarding an issue AEDPA does not expressly address: whether resentencing tolls the statute of limitations period. (8) The Woodfolk court held that the defendant's petition--which challenged an underlying conviction dating twentyfive years earlier--was timely because of the defendant's earlier resentencing. (9) While the Fourth Circuit joins the Fifth, Sixth, and Eleventh Circuits in holding that resentencing tolls the statute of limitations period, the Tenth Circuit vehemently disagrees. (10) Despite the Supreme Court declaring a sentence is equivalent to a final judgment in criminal cases, courts in line with the Tenth Circuit's reasoning are reluctant to let this definition permit tolling. (11) Whether resentencing is tantamount to a new, final judgment severely impacts a petitioner's right to postconviction review. (12) Even further, the two sides of the split disagree on whether this definition should apply to individual claims or an application for habeas as a whole. (13) Allowing resentencing to toll the statute of limitations period, whether for claims or whole applications, may open the floodgates for other issues that, logically, would do the same. (14)

   More deeply rooted in the split, though, rests the issue of the underlying conviction upon which relief is being sought. (15) Among other rights, the criminal justice system in the United States--specifically, the Sixth Amendment to the U.S. Constitution--ensures that an accused person shall have the right to assistance of counsel for his or her defense. (16) Many habeas petitions seek relief for ineffective assistance of counsel. (17) Because claims of this nature tend to present themselves in the form of habeas petitions, AEDPA significantly impacts defendants' Sixth Amendment rights. (18) The rules set forth by AEDPA now force federal courts to, first, ensure the ineffective assistance claim is properly in federal court, and then defer to standards set forth by the Supreme Court. (19) With this constitutional right hinging on AEDPA's impositions, a new, more serious issue accompanies habeas petitions. (20)

   This Note analyzes AEDPA's statute of limitations barrier to habeas petitions, synthesizing persuasive arguments from both sides of the circuit split to properly maintain constitutionality. (21) Sections II.A through II.C discuss the history of habeas corpus and how AEDPA's enactment changed the law. (22) Next, Section II.D outlines the history of the Sixth Amendment right to effective assistance of counsel and how AEDPA impacted that right. (23) Section II.E assesses relevant cases and arguments on each side of the circuit split. (24) Then, Part III of this Note analyzes the opinions among the disagreeing courts, as well as the constitutional impact on ineffective assistance claims. (25) Finally, Part IV argues for a more lenient review of tolling when resentencing involves an ineffective assistance claim to support the constitutional right to counsel and avoid an inappropriately high deference to state courts when reviewing federal claims for habeas corpus. (26)

2. HISTORY

   1. Origin of the Writ

      The writ of habeas corpus acts as a vehicle into the courtroom for detainees who choose to challenge the legality of their imprisonment. (27) Latin for "produce the body," the writ directly compels the agent holding a prisoner to bring him or her in front of the court. (28) Upon a successful petition, the detainee is brought before the court and the agent holding him or her must explain how the confinement is lawful. (29) Thus, the longstanding "[safeguard of] individual freedom against arbitrary and lawless state action," portrays the writ to be one of the last chances to protect infringements upon personal liberty. (30) Although a well-settled doctrine, what exists today differs drastically from the early years of habeas law. (31)

      Habeas petitions date back to the very beginning of the United States. (32) In the seventeenth century, American colonists merged and then adopted two English common law doctrines to form the basis of modern-day writs. (33) Originally, writs in the United States acted solely as a way to get a prisoner into court rather than as a determination of the detainee's guilt or innocence. (34) By simply ordering an agent to physically bring a defendant before the court, the only issue presented was an analysis of the detainee's confinement. (35) As habeas law evolved, though, the ancient doctrine expanded from this restricted application and began to stand as "a bulwark against convictions that violate[d] 'fundamental fairness,'" creating a possibility of justice for wrongfully convicted prisoners. (36)

      With a new school of thought driving habeas petitions, Congress eventually extended the writ privilege to prisoners in state detention. (37) The Habeas Corpus Act of 1867 (1867 Act) broadened the scope of who could petition for a writ to encompass state prisoners, as well as federal detainees. (38) In passing the 1867 Act, Congress did not intend to change any aspect of habeas law except for the class of people who could petition the courts for habeas relief. (39) Unfortunately for Congress, though, an additional fact determination provision included in the 1867 Act that ordered courts to reexamine and make new findings led petitioners toward a prospect of postconviction relief. (40)

      Even further to Congress's dismay, adding a factual determination generated more than just a last-resort hope for defendants. (41) In addition to embodying individual freedom, habeas corpus began to represent a due process right for defendants to contest factual findings of their original convictions. (42) Employing the federal courts as fact finders allowed defendants to reargue issues that had already been assessed at the state level. (43) Consequently, the ability to petition came to protect anyone who had been "'restrained of his or her liberty in violation of the [C]onstitution' ... thereby extending the writ to state prisoners claiming that their detention violated a federal right." (44) The writ of habeas corpus--having been extended to federal review of state convictions--truly became a prisoner's right to postconviction relief. (45) Thus, a "Hail Mary pass" for defendants to fight for their innocence after conviction was born. (46)

   2. Modern Day Writs

      Because contemporary habeas corpus law drastically evolved from the English common-law doctrine, what exists today stems from the Constitution, statutory law, and case law. (47) Section 2241 of the United States Code bestows upon federal judges at all levels the power to grant or deny habeas petitions. (48) Although given this great power, justices and judges may only grant the writ in certain instances. (49) Essentially, a judge's ability to grant a writ is limited to instances where the petitioner's detention violates either federal law or the Constitution. (50)

      On the opposite side of the bench, petitioners have filing limitations just as the judges granting writs do. (51) Arguably one of the more significant restrictions is the one-year statute of limitations period prisoners have to file a petition. (52) The statute's language expressly notes instances that will activate the period and start the defendant's time to file. (53) Yet, despite express examples of triggering events in the statute, many courts continue to struggle with determining when the period actually begins to run. (54)

      Despite these restrictions, the Constitution provides that the right to petition cannot be suspended except in serious cases of rebellion, invasion, or public safety. (55) Reading the Suspension Clause in this manner leads one to believe Congress holds the writ to the utmost importance. (56) Analyzing the Suspension Clause also shows that the right to petition extends to foreign nationals as well as natural citizens, further highlighting the significance of habeas petitions. (57) However, the constitutional protection does not extend to crimes committed in foreign jurisdictions. (58) Although some argue this lack of protection violates the Constitution, case law reveals judges have yet to extend the writ to cases of foreign extradition. (59)

   3. The Passing of AEDPA

      Habeas corpus law changed repeatedly since its creation, but one of the most impactful changes occurred in 1996, when Congress passed AEDPA. (60) In enacting the new law, Congress believed it would discourage needless habeas petitions. (61) However, the law created severely restrictive ramifications: prohibiting successive filings, narrowing review to unreasonable findings, and implementing a one-year statute of limitations...