Earlier this week, in Gonzalez v. Thaler (No. 10-895), the Supreme Court rejected Rafael Gonzalez’s pro se habeas corpus petition because it was filed about five weeks too late.  The Court did not comment on the deep irony of this decision: what Gonzalez was complaining about in his petition — the issue that the Court refused to address on the merits — was a ten-year delay between the time that he was charged and the time that he was brought to trial, allegedly in violation of his Sixth Amendment right to a speedy trial.  That’s right — ten years, occasioned mostly by a six-year delay by the government in initiating extradition proceedings.  What’s an extra five weeks of delay by the defendant in a case that has already been delayed far longer by others?

Pretrial delay by the government and postconviction delay by the defendant are, of course, governed by different legal rules.  The government gets the very malleable and forgiving multifactor test of Barker v. Wingo.  (Depending on the jurisdiction, there may also be a somewhat more rigorous statutory test.)  The defendant, on the other hand, faces (for purposes of federal habeas) the strict one-year statute of limitations of 28 U.S.C. § 2244(d)(1)(A).  It was this one-year deadline that Gonzalez missed by five weeks.

To be sure, the priorities of the criminal-justice system appropriately shift after conviction, justifying different approaches to delay.

Before conviction, it is imperative for both sides to have adequate time to prepare for trial so as to ensure that trial results are as reliable as possible.  After conviction, it is fair to assume (to some extent) the defendant’s guilt, and to give relatively greater weight to the system’s interests in efficiency and finality.

Still, the one-year statute of limitations, introduced into federal habeas law in 1996, seems unnecessary and unfair, especially in cases (like Gonzalez) that do not involve the death penalty.  While capital defendant do indeed have incentives to drag out the process, other habeas petitioners, cooling their heels in prison based on convictions they believe are unjustified, will have every reason to move as swiftly as they can.  It is important to realize, though, that habeas petitioners have no right to counsel, and the vast majority are forced to do what Gonzalez did: figure out how to draft and file a habeas petition on their own, with all of the challenges posed by incarceration (limited legal research capabilities, periodic lockdowns, inability to communicate with potentially helpful witnesses on the outside, etc.).

What’s more, that one-year statute of limitations — such a seemingly bright line — presents many complications in practice.  In particular, when the SOL is put alongside two other aspects of habeas law, the exhaustion requirement and the restrictions on successive petitions, there are many traps for the unwary.  I can attest that my post-conviction remedies students — most working with the benefit of two and a half years of legal education — find it plenty difficult to understand the interaction of these three rules, including the many glosses that have been put on them over the years by the Supreme Court.

Bearing in mind all of the other habeas rules that exist to prevent “abuse of the writ,” the one-year SOL ought to be repealed.

Of course, the Supreme Court did not have that option in Gonzalez.  But the Court could have construed the SOL more generously than it did, so as to give pro se inmates like Gonzalez a fairer shot at having their constitutional claims addressed on the merits.

Here’s what happened.  Convicted of murder in 2006, Gonzalez took his case to the Texas Court of Appeals and lost.  He did not seek further review in the Texas Court of Criminal Appeals, the state’s highest court for criminal appeals, and the time for doing so expired on August 11, 2006.  The Court of Appeals then issued its mandate, formally terminating the appellate process, on September 26, 2006.  Gonzalez then unsuccessfully pursued state habeas relief, which indisputably tolled the federal SOL.

Gonzalez filed his federal habeas petition on January 24, 2008.  If the SOL had begun to run on the date the mandate issued (9/26/06), Gonzalez’s petition would have been timely; however, the Supreme Court ruled the SOL actually began to run about six weeks earlier, when Gonzalez’s time to appeal to the Court of Criminal Appeals expired (8/11/06).  Using that date, Gonzalez missed his federal deadline by about five weeks.

According to the statute, the clock begins running from “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.”  Gonzalez argued that “the conclusion of direct review” occurs when the mandate issues, and that he should get the benefit of that later date.  This is at least a facially plausible interpretation.  The Court decided, however, that the “conclusion of direct review” prong is not available to petitioners who fail to seek direct review all the way up to the United States Supreme Court.  This, too, is a plausible interpretation.  How to choose between them?

Citing “administrability” concerns, the Court worried that Gonzalez’s approach — in effect, deferring to each state’s own rules about when direct review is concluded — would impose on federal courts the burden of making “state-by-state determinations.”  (Mem. Op. at 17-18.)  But most habeas decisions are not appealed beyond the district court level, and each district court would only have to figure out the law of one state.  And even at the level of the circuit courts, there would only be a handful or so of states to keep track of.  Only the Supreme Court would potentially have to worry about the divergent laws of 50 different states, and habeas cases presenting SOL issues in the Supreme Court are quite rare.  Do the administrability concerns really outweigh the danger that a meritorious habeas claim will be dismissed because a pro se petitioner has failed to understand that he cannot rely on what state law says about when state proceedings are finished?

The concerns are heightened in states like Texas that preclude state habeas review until after the mandate issues.  As Gonzalez pointed out, the operation of state and federal rules in his case effectively shortened his federal SOL by six weeks.  He could not file his federal petition until he exhausted his speedy trial claim in state habeas, but he had to sit around for six weeks after his federal clock began to run before be could initiate the state habeas process.

True, even taking those six weeks out, he had more than ten months left on his federal clock, which may seem like plenty of time to draft and file a federal petition.  But, again, consider the general challenges facing a pro se inmate, as well as the particular complications of dealing with the state habeas litigation and sorting out how the two rounds of state post-conviction proceedings will interact with federal rules relating to the statute of limitations, exhaustion, procedural default, and deference to state-court decisions on the merits.  A difference of six weeks may be much more significant than first appears to be the case — as indeed it was for Rafael Gonzalez.

Cross posted at Life Sentences.