{"id":16260,"date":"2012-01-13T15:00:25","date_gmt":"2012-01-13T20:00:25","guid":{"rendered":"http:\/\/law.marquette.edu\/facultyblog\/?p=16260"},"modified":"2012-01-13T15:12:39","modified_gmt":"2012-01-13T20:12:39","slug":"delay-in-criminal-procedure-what%e2%80%99s-good-for-the-goose-is-well-never-mind","status":"publish","type":"post","link":"https:\/\/law.marquette.edu\/facultyblog\/2012\/01\/delay-in-criminal-procedure-what%e2%80%99s-good-for-the-goose-is-well-never-mind\/","title":{"rendered":"Delay in Criminal Procedure: What\u2019s Good for the Goose Is . . . Well, Never Mind"},"content":{"rendered":"

Earlier this week, in\u00a0Gonzalez v. Thaler<\/em>\u00a0(No. 10-895)<\/a>, the Supreme Court rejected Rafael Gonzalez\u2019s\u00a0pro se\u00a0<\/em>habeas corpus petition because it was filed about five weeks too late. \u00a0The Court did not comment on the deep irony of this decision: what Gonzalez was complaining about in his petition \u2014 the issue that the Court refused to address on the merits \u2014 was a\u00a0ten-year<\/em>\u00a0delay 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. \u00a0That\u2019s right \u2014 ten years, occasioned mostly by a six-year delay by the government in initiating extradition proceedings. \u00a0What\u2019s an extra five weeks of delay by the defendant in a case that has already been delayed far longer by others?<\/p>\n

Pretrial delay by the government and postconviction delay by the defendant are, of course, governed by different legal rules. \u00a0The government gets the very malleable and forgiving multifactor test of\u00a0Barker v. Wingo<\/em>. \u00a0(Depending on the jurisdiction, there may also be a somewhat more rigorous statutory test.) \u00a0The defendant, on the other hand, faces (for purposes of federal habeas) the strict one-year statute of limitations of 28 U.S.C. \u00a7 2244(d)(1)(A). \u00a0It was this one-year deadline that Gonzalez missed by five weeks.<\/p>\n

To be sure, the priorities of the criminal-justice system appropriately shift after conviction, justifying different approaches to delay.<\/p>\n

<\/p>\n

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. \u00a0After conviction, it is fair to assume (to some extent) the defendant\u2019s guilt, and to give relatively greater weight to the system\u2019s interests in efficiency and finality.<\/p>\n

Still, the one-year statute of limitations, introduced into federal habeas law in 1996, seems unnecessary and unfair, especially in cases (like\u00a0Gonzalez<\/em>) that do not involve the death penalty. \u00a0While 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. \u00a0It 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.).<\/p>\n

What\u2019s more, that one-year statute of limitations \u2014 such a seemingly bright line \u2014 presents many complications in practice. \u00a0In 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. \u00a0I can attest that my post-conviction remedies students \u2014 most working with the benefit of two and a half years of legal education \u2014 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.<\/p>\n

Bearing in mind all of the other habeas rules that exist to prevent \u201cabuse of the writ,\u201d the one-year SOL ought to be repealed.<\/p>\n

Of course, the Supreme Court did not have that option in\u00a0Gonzalez<\/em>. \u00a0But the Court could have construed the SOL more generously than it did, so as to give\u00a0pro se\u00a0<\/em>inmates like Gonzalez a fairer shot at having their constitutional claims addressed on the merits.<\/p>\n

Here\u2019s what happened. \u00a0Convicted of murder in 2006, Gonzalez took his case to the Texas Court of Appeals and lost. \u00a0He did not seek further review in the Texas Court of Criminal Appeals, the state\u2019s highest court for criminal appeals, and the time for doing so expired on August 11, 2006. \u00a0The Court of Appeals then issued its mandate, formally terminating the appellate process, on September 26, 2006. \u00a0Gonzalez then unsuccessfully pursued state habeas relief, which indisputably tolled the federal SOL.<\/p>\n

Gonzalez filed his federal habeas petition on January 24, 2008. \u00a0If the SOL had begun to run on the date the mandate issued (9\/26\/06), Gonzalez\u2019s petition would have been timely; however, the Supreme Court ruled the SOL actually began to run about six weeks earlier, when Gonzalez\u2019s time to appeal to the Court of Criminal Appeals expired (8\/11\/06). \u00a0Using that date, Gonzalez missed his federal deadline by about five weeks.<\/p>\n

According to the statute, the clock begins running from \u201cthe date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.\u201d \u00a0Gonzalez argued that \u201cthe conclusion of direct review\u201d occurs when the mandate issues, and that he should get the benefit of that later date. \u00a0This is at least a facially plausible interpretation. \u00a0The Court decided, however, that the \u201cconclusion of direct review\u201d prong is not available to petitioners who fail to seek direct review all the way up to the United States Supreme Court. \u00a0This, too, is a plausible interpretation. \u00a0How to choose between them?<\/p>\n

Citing \u201cadministrability\u201d concerns, the Court worried that Gonzalez\u2019s approach \u2014 in effect, deferring to each state\u2019s own rules about when direct review is concluded \u2014 would impose on federal courts the burden of making \u201cstate-by-state determinations.\u201d \u00a0(Mem. Op. at 17-18.) \u00a0But 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. \u00a0And even at the level of the circuit courts, there would only be a handful or so of states to keep track of. \u00a0Only 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. \u00a0Do the administrability concerns really outweigh the danger that a meritorious habeas claim will be dismissed because a\u00a0pro se\u00a0<\/em>petitioner has failed to understand that he cannot rely on what state law says about when state proceedings are finished?<\/p>\n

The concerns are heightened in states like Texas that preclude\u00a0state\u00a0<\/em>habeas review until after the mandate issues. \u00a0As Gonzalez pointed out, the operation of state and federal rules in his case effectively shortened his federal SOL by six weeks. \u00a0He 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.<\/p>\n

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. \u00a0But, 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. \u00a0A difference of six weeks may be much more significant than first appears to be the case \u2014 as indeed it was for Rafael Gonzalez.<\/p>\n

Cross posted at Life Sentences<\/a>.<\/p>\n","protected":false},"excerpt":{"rendered":"

Earlier this week, in\u00a0Gonzalez v. Thaler\u00a0(No. 10-895), the Supreme Court rejected Rafael Gonzalez\u2019s\u00a0pro se\u00a0habeas corpus petition because it was filed about five weeks too late. \u00a0The Court did not comment on the deep irony of this decision: what Gonzalez was complaining about in his petition \u2014 the issue that the Court refused to address on […]<\/p>\n","protected":false},"author":7,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"ocean_post_layout":"","ocean_both_sidebars_style":"","ocean_both_sidebars_content_width":0,"ocean_both_sidebars_sidebars_width":0,"ocean_sidebar":"","ocean_second_sidebar":"","ocean_disable_margins":"enable","ocean_add_body_class":"","ocean_shortcode_before_top_bar":"","ocean_shortcode_after_top_bar":"","ocean_shortcode_before_header":"","ocean_shortcode_after_header":"","ocean_has_shortcode":"","ocean_shortcode_after_title":"","ocean_shortcode_before_footer_widgets":"","ocean_shortcode_after_footer_widgets":"","ocean_shortcode_before_footer_bottom":"","ocean_shortcode_after_footer_bottom":"","ocean_display_top_bar":"default","ocean_display_header":"default","ocean_header_style":"","ocean_center_header_left_menu":"","ocean_custom_header_template":"","ocean_custom_logo":0,"ocean_custom_retina_logo":0,"ocean_custom_logo_max_width":0,"ocean_custom_logo_tablet_max_width":0,"ocean_custom_logo_mobile_max_width":0,"ocean_custom_logo_max_height":0,"ocean_custom_logo_tablet_max_height":0,"ocean_custom_logo_mobile_max_height":0,"ocean_header_custom_menu":"","ocean_menu_typo_font_family":"","ocean_menu_typo_font_subset":"","ocean_menu_typo_font_size":0,"ocean_menu_typo_font_size_tablet":0,"ocean_menu_typo_font_size_mobile":0,"ocean_menu_typo_font_size_unit":"px","ocean_menu_typo_font_weight":"","ocean_menu_typo_font_weight_tablet":"","ocean_menu_typo_font_weight_mobile":"","ocean_menu_typo_transform":"","ocean_menu_typo_transform_tablet":"","ocean_menu_typo_transform_mobile":"","ocean_menu_typo_line_height":0,"ocean_menu_typo_line_height_tablet":0,"ocean_menu_typo_line_height_mobile":0,"ocean_menu_typo_line_height_unit":"","ocean_menu_typo_spacing":0,"ocean_menu_typo_spacing_tablet":0,"ocean_menu_typo_spacing_mobile":0,"ocean_menu_typo_spacing_unit":"","ocean_menu_link_color":"","ocean_menu_link_color_hover":"","ocean_menu_link_color_active":"","ocean_menu_link_background":"","ocean_menu_link_hover_background":"","ocean_menu_link_active_background":"","ocean_menu_social_links_bg":"","ocean_menu_social_hover_links_bg":"","ocean_menu_social_links_color":"","ocean_menu_social_hover_links_color":"","ocean_disable_title":"default","ocean_disable_heading":"default","ocean_post_title":"","ocean_post_subheading":"","ocean_post_title_style":"","ocean_post_title_background_color":"","ocean_post_title_background":0,"ocean_post_title_bg_image_position":"","ocean_post_title_bg_image_attachment":"","ocean_post_title_bg_image_repeat":"","ocean_post_title_bg_image_size":"","ocean_post_title_height":0,"ocean_post_title_bg_overlay":0.5,"ocean_post_title_bg_overlay_color":"","ocean_disable_breadcrumbs":"default","ocean_breadcrumbs_color":"","ocean_breadcrumbs_separator_color":"","ocean_breadcrumbs_links_color":"","ocean_breadcrumbs_links_hover_color":"","ocean_display_footer_widgets":"default","ocean_display_footer_bottom":"default","ocean_custom_footer_template":"","ocean_post_oembed":"","ocean_post_self_hosted_media":"","ocean_post_video_embed":"","ocean_link_format":"","ocean_link_format_target":"self","ocean_quote_format":"","ocean_quote_format_link":"post","ocean_gallery_link_images":"on","ocean_gallery_id":[],"footnotes":""},"categories":[30,24],"tags":[],"class_list":["post-16260","post","type-post","status-publish","format-standard","hentry","category-criminal-justice","category-us-supreme-court","entry"],"_links":{"self":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/16260","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/users\/7"}],"replies":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/comments?post=16260"}],"version-history":[{"count":0,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/16260\/revisions"}],"wp:attachment":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/media?parent=16260"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/categories?post=16260"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/tags?post=16260"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}