Carey v. Saffold - Oral Argument

Argument of Stanley A. Cross

Chief Justice Rehnquist: We'll hear argument next in No. 01-301, Tom L. Carey v. Tony Eugene Saffold.

Mr. Cross.

Mr. Cross: Mr. Chief Justice, and may it please the Court: AEDPA's language, purpose, and legislative history supports the conclusion that the circuit conflict over the meaning of pending in 28 U.S.C., section 2244 (d)(2) can be resolved by reversing the Ninth Circuit for one or more of the following three reasons.

First, the Ninth Circuit improperly permits tolling for substantial delay if the State Supreme Court addresses the merits when denying an application for collateral review.

Second, under California's system of successive original petitions, nothing is pending under State or Federal law following the denial of an application for collateral review and prior to the proper filing of a new application for review.

And third, the gap theory relied upon by the district court more accurately reflects congressional intent and the policy judgments underlying AEDPA's 1-year statute of limitations than does the Ninth Circuit's interpretation of pending--

Justice O'Connor: Mr. Cross, would you explain to us what it is in California... what is the system and the time within which post-conviction relief can be applied for in California courts?

Is there any time limit for filing it with the trial court level?

Mr. Cross: --It's within a reasonable time, Your Honor, the general rule of timeliness.

However, within a reasonable time has parameters which I can give you the case of In re Harris, a California Supreme Court case, which addresses that.

Specifically, it says the following in footnote 7.

That's... the cite is 5 Cal. 4th at 828-829.

Footnote 7 says the following.

The general rule regarding timeliness is the habeas corpus petition must be filed within a reasonable time after the petitioner counsel knew or with due diligence should have known the facts underlying the claim, as well as the legal basis of the claim.

They then follow that up with two significant points.

The first is, is that ineffective assistance of counsel claims, which is the claim in this particular litigation, should be filed as a verified... excuse me... a verified petition jointly with the direct appeal.

In other words, if you know about the claim, you should file it at that time.

Now, as far as how long you should be able to wait, the rules specifically state with regard to capital cases, which are considered to be much more complex than the average non-capital case, they give them a 90-day period in which there is a presumption of timeliness so that there is no substantial delay.

You have a presumption that you have not exceeded substantial delay if you do it within 90 days.

Justice O'Connor: All right.

Now, here there was a prompt filing in the... at the trial court level.

Mr. Cross: Pardon?

Justice O'Connor: Here there was a prompt filing at the trial court level for habeas, State habeas.

Mr. Cross: I would... Your Honor, I would respectfully disagree that it was prompt since he waited 5 years--

Justice O'Connor: Well, all right.

It was... it was within the statutory period that we have imposed for these situations where it had... AEDPA became effective.

Mr. Cross: --He filed his claim with 7 days remaining--

Justice O'Connor: Okay.

Mr. Cross: --in the grace period of the statute of limitations.

Justice O'Connor: Now, after the trial court resolved it and denied relief, then there's no review mechanism other than filing an original writ with the court of appeals?

Mr. Cross: Correct.

Justice O'Connor: Is that how it's done?

Mr. Cross: Correct, in California.

Justice O'Connor: And is that again a reasonable time period within which to seek review by that mechanism in the court of appeals?

Or is there a time limit?

Mr. Cross: As far as the... the time between each original petition, there is no time limit.

You would be looking at the overall time period because you're dealing with... Your Honor, with original petitions here.

So he has every right in California to go directly to the California Supreme Court or the Third District Court of Appeal.

Chief Justice Rehnquist: Well, that's the traditional rule in habeas corpus, at least in... in England.

Mr. Cross: Correct.

Chief Justice Rehnquist: Wasn't it?

That you could go from one court to another and have... have a different judge look at it in a different proceeding and get a different result.

Mr. Cross: Absolutely, Your Honor.

Justice Souter: But if he goes... if he's... I take it, under the California system, if he starts in the Supreme Court of California, and there's a fact issue, they're going to say, go back to the trial court and start there.

They're not going to have a factual trial, are they?

Mr. Cross: In fact, Your Honor, I'd like to correct a misunderstanding that's promoted by the respondent's brief.

If you look at the red brief at page 31, it gives the impression that you are indicating that if you were to go directly to the California Supreme Court--

Chief Justice Rehnquist: Whereabouts on page 31?

Mr. Cross: --On page 31 at the top paragraph, there's a reference in the third line to In re Hillery.

Then there's a reference, the Ninth Circuit case, Harris v. Superior Court, indicating that California appellate courts may refuse to entertain habeas and that it be sent back to the trial court.

That's an incorrect statement of law, and I'll refer you to the actual footnote on that page, footnote 19, referring to California Rule of Court 56(a)(1).

The problem with respondent's position is that he gives a literal quote of 56(a)(1) and it sounds like that's the proposition that you're referring to, but he ignores to cite to the subsection (h), which is, as of January 1st of this year, is now labeled subsection (i), which specifically states, quote... and the title of the subsection is proceedings not covered by this rule.

Quote: the provisions of this rule shall not apply to applications for a writ of habeas corpus or to petitions for review pursuant to rules 57, 58, and 59.

Justice Souter: Well, what happens--

Justice Scalia: --So, you... you can begin in a higher court.

Mr. Cross: Yes.

Justice Scalia: You don't have to begin--

Mr. Cross: Right, correct.

Justice Souter: --What happens if you do begin in a higher court and... and there are disputed factual issues?

How do they resolve the factual issues?

Mr. Cross: The... that is explained, Your Honor, in Harris v. Superior Court, the Ninth Circuit opinion--

Justice Souter: Well, I haven't read--

Justice O'Connor: --Why don't you tell us?

Mr. Cross: --I will tell you, Your Honor.

The... the way it is handled is the California Supreme Court around 1969 set up a procedure in which for original petitions in the appellate court that are filed there, either in the... the district court of appeal or the California Supreme Court, they can have a special master, or they can send it back to the trial court, so that there's no prevention from them taking the court and deciding it with or without the hearing.

But a prima facie case must be made to them in order for those--

Chief Justice Rehnquist: Did... in the proceedings involved in this particular case, did either of the appellate courts go the... do that?

Mr. Cross: --No.

There was... the... the district court of appeal is a one-line denial, simply stating denied.

And in the California Supreme Court, the petition was denied on the merits and for lack of diligence.

Justice Ginsburg: But in this--

Justice Kennedy: --What happens just as a practical matter?

You go to the superior court on a collateral attack with a... with a petition for a writ, and the court makes lots of findings and rulings of law.

Some of those rulings of law are absolutely wrong, but still, the ultimate outcome may be in doubt.

And so then the petitioner, the original petitioner, wants to go to the court of appeals.

Does... does he annex what happens in... in the superior court just for the enlightenment of the court of appeals as to what the issues are or what the wrong rulings were, what the right rulings were, what the findings were?

Mr. Cross: The forms, Your Honor, are in the joint appendix where you are expected to indicate... it's... all three petitions use the same judicial counsel form.

California Supreme Court petition... if you want to look, it starts at page 31.

And there... I believe there is a question which asks the defendant if they've sought review in another court and to explain what the finding was of that court and what claims were requested.

That would be, for example, question 9, did you seek review in the... excuse me.

Justice Kennedy: Well, it's just background.

I... I see where to find it now.

Mr. Cross: The... that's the extent of it.

And so, the purpose of that question is to determine whether or not it's a... it's a successive petition so they cannot... if they had gone to the lower court, it can't be remanded back because the... if the petition has been denied in the lower court, they don't want to send it back for an evidentiary hearing to the same judge or court who has gone through the proceeding before and denied it.

Justice Kennedy: Well, getting to the issue in the case, the respondent's brief points out that under the theory you propose, what would happen if it's the... the State that's appealing or filing a new... not appealing, but filing a new action?

The... the prisoner wins in... in the lower court, and then the State files an action.

How... how would you count that or not count that so far as the limitations period is concerned?

Mr. Cross: That is the most difficult question that is posed, without question, Your Honor.

The response I would have is it appears to me that Congress perhaps did not think of that particular scenario other than perhaps that under 2244(d)(1)(B), the State-created impediment issue would take care of the extreme case where the... where the State was trying to prevent the person's time from--

Chief Justice Rehnquist: This is the case where the petitioner prevails--

Mr. Cross: --Right.

Chief Justice Rehnquist: --in superior court, and by statute, now California allows the State to appeal that.

Mr. Cross: Correct, Your Honor.

Chief Justice Rehnquist: Well, certainly that would be... that would be pending all that time, would it not?

Mr. Cross: If you--

Chief Justice Rehnquist: Or would it not?

Mr. Cross: --If you take the position that it's not an appellate system in a State like California, I don't think it would be.

Chief Justice Rehnquist: Well, but you know, it can... it could be not an appellate system from the point of view of the petitioner who has to have an original petition each... each time he goes again to a new court.

But the legislature said, with respect to the State, if the... if the State loses, it can appeal, then that would be an appellate proceeding, wouldn't it?

Mr. Cross: For California... under California law, Your Honor, absolutely.

But as far as this statute is concerned, I think we're interested in what the Federal law is and how the Congress would have viewed it.

Justice Breyer: So, looking at how Federal law--

Justice Kennedy: --But I... but... if... if I may, just one moment, Justice Breyer.

What the Chief Justice suggests is that I... I did not pose a problem because what happens is is that the State simply appeals the... what it thinks to be the erroneous ruling, and that means the action is still pending.

But I... I thought from our earlier interchange that you thought there was a bigger problem than that.

Mr. Cross: I think there is a bigger problem because if there is... it depends on when finality occurs, and if... if you have an original proceeding and the decision is final upon that decision, the clock would, I would assume, start at least under California law.

The case laws that's referred to in the yellow brief under subsection (c)--

Justice Kennedy: Well, but the Chief Justice suggests it's not rocket science for us to say it's still pending if there's an appeal.

Justice Scalia: Well, I... I thought your--

Justice Kennedy: --Or am I missing something?

Justice Scalia: I am confused now.

I thought your position was that the case may well be pending, as Justice Kennedy says, but there's no application pending--

Mr. Cross: --Correct.

Justice Scalia: --on the appeal.

The application has been disposed of in the first court.

There's an appeal, but there's no longer an application pending.

And that's how the statute reads, not the case is pending.

Mr. Cross: Right.

Justice Breyer: There is an appeal?

I thought that what happened... I guess I'm mixed up.

Maybe go back to Justice O'Connor.

But I thought I understood this.

I thought that they... but that there is... first of all, you file in the district court normally.

You don't have to in California.

Chief Justice Rehnquist: Superior.

Justice Breyer: But almost always they'll go to the superior court and file a petition.

And then in every other State, the losing party would appeal, but in California, they use different words.

The words are not you appeal; the words are you file a new petition in the court of appeals.

And indeed, if you lose there, the words are not you have 10 days to seek review in the Supreme Court; the words are you have whatever time you want.

You have to file a new petition in the Supreme Court, but if you're too late, they're going to tell you you're too late.

So, it functions exactly as if the words were the following.

You must appeal within... now, normally it will say 60 days, but in California it says within a reasonable time.

Now, those aren't the words of the statute, but that's how it functions.

And if we don't read it that way for purposes of Federal law, I guess we'd have to say that in 10,000 case a year in the California superior courts involving State habeas petitions... as soon as those are decided, they have to come here because they're all final decisions of the State Supreme Court.

And 5,000 cases in the courts of appeals in California.

Once they said final, they have to come here.

So, we better have 20,000 new petitions each year from the State of California because California happens to use the word final and new petition instead of using the word appeal.

Now, what's wrong with what I said?

Mr. Cross: What's wrong with what you said, Your Honor, first of all, is that although California may say that it's final at that level, it does not prevent the individual from going to either of the other two next levels or skipping one and going to the other because they are in fact original and in fact not... it's more than just mere semantics because they can go to California with different claims.

It doesn't have to be the same petition at all.

Chief Justice Rehnquist: Justice Breyer suggests that when you go, say, from the superior court to the district court of appeal, it's... it's like an appeal.

Well, now, is there a transcript of the record made in the superior court that you have to file with the district court of appeal like you would in other appeals?

Mr. Cross: Typically not.

There could be some circumstances, under rare circumstances, where the superior court would have some sort of evidentiary hearing.

There would be a transcript.

Chief Justice Rehnquist: Do you have to file a notice of appeal in the superior court to go to the district court of appeal?

Mr. Cross: No, Your Honor.

Justice Breyer: In other words, in the... I've never heard of this, and I know a lot of California lawyers.

I thought when you go to the superior court in California... a prisoner and he says, I raise issues 1, 2, and 3, and they have a record and they decide it.

And now you go to the California court of appeals.

I thought in the normal case they'll say, and the superior court judge made an error, and the reason he made an error is because of... and then they'll cite witnesses just like an appeal.

Now, I grant you they can do some extra things.

They can raise extra issues if they want, and they don't have to raise everything below like any other appeal.

But aside from that, I don't know the differences.

I've been around for a while.

I've seen a few cases.

I've never noticed some big difference.

Now, you'll tell me I'm all wrong about California, and I'm open to hearing that.

Mr. Cross: The California case law, in fact, indicates that--

Justice Breyer: I'm not interested in California case law.

I want to know what the practice is in California.

Mr. Cross: --The practice is quite different from the description that you gave.

Justice Breyer: Fine.

That's what I want to know.

Mr. Cross: In fact, there are... I don't have the exact statistics, but in my 15 years of experience in practicing, I have seen probably around 40 to 50 percent of the cases not go to the trial court, that in fact, very commonly they go directly to the California Supreme Court, and they are denied.

That's a very common experience in California--

Justice O'Connor: Then can they go... start over again and go down to the trial court and the court of appeals?

Mr. Cross: --Not... Your Honor, not on those same claims, they certainly can't.

California and other States would perhaps bar successive petitions if it's the same claims.

It doesn't necessarily prevent them from coming back with something else that they've discovered at a later time--

Justice O'Connor: There's no bar in California to going back as many times as you want if you have a new claim each time?

Mr. Cross: --There are escape clauses in California, as well as other States, that... that allow you, if you discover, just like the Federal statute, new claims.

Justice O'Connor: All right.

What... what is the general rule in other States that are unlike California that say you go for post-conviction relief first to the trial court?

Let them decide it.

Then you have 30 days or whatever it is to go to the court of appeals.

If that's denied, you have X number of days to go to the State Supreme Court.

Now, in a State like that, is it the case that in applying AEDPA in this statute of limitations, that we exclude all of the time for decision making as well as that statutory time within which to file the appeal?

Mr. Cross: AEDPA grants--

Justice O'Connor: Is that what a majority of courts are holding?

Mr. Cross: --The majority of courts are holding that... and the statute specifically provides for tolling for all the time in which the decision... excuse me... in which the petition is before a court.

That's, you know, specifically provided.

Justice O'Connor: Well, yes, but is it... is it the case that most courts are holding, under the scheme I described, that not only while the court is deciding it, but the time allowed to enable them to go to the next higher court is excluded as well?

Mr. Cross: The majority of courts are holding that you will get time for the appeal time that's specified by the State, for example, 60 days or 90 days.

Justice O'Connor: Yes, all right.

So, the problem with California is we have no time specified.

We have a reasonable time.

How are we supposed to decide what's reasonable in California?

Should we certify a question back to the California Supreme Court and say, was this a reasonable time?

How do we know?

Mr. Cross: One--

Justice O'Connor: What do we do?

Mr. Cross: --One suggestion that was made in the amicus briefs by the Criminal Justice Legal Foundation is to adopt the nearest analogous State rule, which in California under rule 2 or 30 through 31 would be 60 days.

That's one thing that could be done by the court which would stretch the statutory language to... to bring California into an appellate system which--

Justice O'Connor: Wouldn't that be up to California to do?

What we have is a system that allows a reasonable time.

I'm asking you how we determine what is a reasonable time.

Mr. Cross: --I think, Your Honor, the way to determine a reasonable time would be to look at the California rules for their original habeas petitions and determine that under California law, we know that... that you are expected to file no longer than 90 days in a capital case without having a presumption of timeliness--

Justice Stevens: May I just interrupt--

Mr. Cross: --And that would be the absolute outside limit for a determination of what would be reasonable.

Justice Stevens: --But may I just ask this question?

If in this case the California court did decide on the merits... apparently... it's a little ambiguous, but it seems to... wouldn't that definitely disclose a decision that it was reasonable?

They took jurisdiction.

Mr. Cross: No, Your Honor.

I... I believe that the... the interpretation would be that even though a... a State Supreme Court decided, at least alternatively on the merits... simply indicates that for one reason or another, they decided to perhaps excuse untimeliness if they didn't have a... an untimeliness finding--

Justice Stevens: To excuse untimeliness, they're saying in this particular case we think it must have been reasonable.

Aren't... isn't that... doesn't that necessarily follow?

Mr. Cross: --In this particular case, they said he acted with a lack of diligence.

Justice Ginsburg: But that might have been--

Justice Scalia: --No, but it didn't excuse untimeliness.

Untimeliness was one of the two bases for their decision, wasn't it?

Mr. Cross: In this case, absolutely.

Justice Ginsburg: We don't know whether that untimeliness was the 5 years that he took to even get started.

There's one fact question here that may make the rest of this rather abstract.

This petitioner says that he never got notice of the... of the intermediate appellate court's decision and he... when he did... I mean, the only gap here that's relevant for AEDPA... the 5 years is gone.

He gets that free.

But the only gap we're talking about, as I understand it, is the 4-and-a-half months.

And he says, as to that, I never knew.

I wrote a letter and finally they told me, and within 3 days after I got notice, I filed in the next court.

So, I was diligent from the time I knew of that decision.

There is no... there's been no determination by anybody whether that 4-and-a-half-month interval was beyond his control.

I mean, you recognize that there would be an exception for situations beyond his control.

So, how do we determine whether there was any lack of diligence with respect to that 4-and-a-half months?

This record is totally blank on it.

Mr. Cross: Your Honor, this situation is even more perplexing than what you set forth because there are three possibilities.

One is that it's the 5-year period the California is returning to... referring to.

Another possibility it's just the 4-and-a-half-month.

And the third possibility is the combination of all of those periods.

The question simply is what is meant by timely and what is meant by properly pursuing.

Chief Justice Rehnquist: Well, and also I think what is meant by pending because if... if we were... if it were determined that these separate matters, as you say, before three different courts were pending only during the time those particular courts had them for consideration, it might be quite a different result than if you say look at the reasonableness of the whole series of proceedings together.

Mr. Cross: Your Honor, absolutely that is correct.

If we look at the language--

Justice Scalia: Mr. Cross, as... as I understand your submission, it doesn't matter.

That was not the ground on which the Ninth Circuit decided the case, you contend.

They decided it simply on the ground that the Supreme Court of California addressed the merits.

End of case.

Mr. Cross: --Right.

Justice Scalia: Right?

Mr. Cross: The California Supreme Court holding and the... the problem it presents for the statute is... is that it eviscerates the statute by holding that as long as... as the State Supreme Court addresses the merits, that regardless of the length of the delay, which could be not just 4-and-a-half months in this case, but 4-and-a-half years or 4-and-a-half decades, they will excuse the delay.

Justice Breyer: But isn't the... the answer that... your... your friends on the other side give a... a good answer.

They say, look, the... the point of requiring speed here is to preserve the State interest and make sure States don't have to retry cases years and years later and there's relative finality and so on.

If the State wants to allow this kind of, in effect, dilatory proceeding, the State has no claim to be offended by it.

It's in the State's power.

So, if the State wants to give you 10 years for habeas, the State hasn't got any complaint.

It gave the 10 years and it can change its rule if it wants to.

What's the answer to that?

Mr. Cross: Your Honor, the answer to that is that this is a Federal statute not a State statute.

We're not changing the--

Justice Breyer: It is a Federal statute that is keyed to a State statute, and the point of doing this is to preserve the State's interest in... in finality in their own proceedings and to... to protect the State from being forced, in effect, to retry cases years and years in the future after the... the evidence has grown stale.

Mr. Cross: --That's--

Justice Breyer: And if that... if those are the objectives of the statute... and I thought they were... then California, in effect, or any State can control the proceedings simply by its own time schedule.

Mr. Cross: --Your Honor, that is certainly one of the objectives of the statute, but there are a number of policy interests related to the statute of limitations itself which is part of AEDPA.

You're absolutely correct in that finality is one of the three main concerns of AEDPA itself, but there are other concerns and policy concerns related to the statute itself.

Justice Scalia: Mr. Cross, a State Supreme Court that had that attitude, that didn't care that you were late, would not... would not have dismissed this case on two grounds, one of which is it's untimely.

That's not what we have here.

We don't have a situation in which the California Supreme Court said, we don't care how late it is; we're going to decide it on the merits.

It decided on two grounds, one of which is you... you are too late under our... under our rules.

And... and the Ninth Circuit just ignored that.

Isn't that right?

Mr. Cross: That's absolutely right, Your Honor.

Justice Breyer: Isn't the counter argument equally possible?

A State that was really concerned about timeliness would not have decided the case also on the merits as an alternative ground.

Therefore, if it does decide that it's significant enough to get into the merits, we ought to take the... the State Supreme Court at its word and say, if there was a merits determination, it obviously was not untimely in... in any dispositive sense.

Why isn't that an equally good interpretation?

Mr. Cross: I think, Your Honor, this Court has stated before in Coleman v. Thompson that we... that you don't want to direct the State courts how to issue their rulings for whatever State reasons they have for doing it.

Justice Breyer: No, but when the State says two things and they seem to be in contradiction... if it's untimely, then you don't get to the merits.

It's... it's unreasonable in time.

If you do get to the merits, it suggests that there is something timely about it.

And all, I think, the Ninth Circuit was saying and all I'm suggesting is we're not mind readers.

We can't say, well, we guess they really meant the first part of... the first reason they gave or they really meant the second reason.

We're simply going to come up with a... with a rule that everyone will understand and that the State courts can understand.

And if they get to the merits, we're going to deem it timely because we... we assume these people are not going to be reaching merits decisions on... on matters that are totally untimely under their law.

Why... why doesn't that respect the State courts, give a rule that everybody pretty much can follow and know where he stands?

Mr. Cross: Your Honor, because it would, in effect, eviscerate the statute of limitations under Federal law.

If you have unlimited tolling for 20 or 30 years, there is not much left of the 1-year Federal statute of limitations.

And under Harris v. Reed, alternative--

Justice Breyer: What's left is a 1-year Federal statute of limitations after the conclusion of the State proceedings, and if the State proceedings were begun in a timely fashion, I don't know what else the statute is supposed to accomplish.

Mr. Cross: --Well, Your Honor, the statute... statutory schemes across the country... there's a wide variety, of which there are over 20 States that have no statute of limitations.

Justice Ginsburg: Do you know how the California Supreme Court operates generally with respect to petitions of this kind, post-conviction petitions?

Is it common for them to say on the merits, but anyway it's untimely, or do they often say it's untimely, that's the end of it without going on to the merits?

Mr. Cross: It's usually a combination, Your Honor.

There's in fact, a dispute between the members of the California Supreme Court as to whether to even pose procedural bars.

Justice Brown has argued that it only should be addressed on the merits.

So, there's a combination usually or sometimes just a denial on the merits.

If you don't mind, Your Honor, I'd like to reserve the remainder of my time.

Argument of David W. Ogden

Chief Justice Rehnquist: Very well, Mr. Cross.

Mr. Ogden, we'll hear from you.

Mr. Ogden: Mr. Chief Justice, and may it please the Court: I would like to go directly to the two most difficult questions that I need to answer this morning and which have been addressed extensively thus far.

First, that the rule adopted by the... by the unanimous courts of appeals that any gaps between stages of the State habeas process should be tolled so long as the next stage is initiated in a timely fashion should apply to California.

And second--

Justice Scalia: What happens if it... go on.

Give us your second--

Mr. Ogden: --And... and the second point that I'd like to address is that under that rule on the record in this case, there is an insufficient basis to conclude that the filing in the State Supreme Court was late and therefore that the judgment below should be affirmed.

Chief Justice Rehnquist: --Are you going to cover the question of whether these various actions were pending and for how long?

Mr. Ogden: Yes, Your Honor.

That's the first... that's... that's the first subject that I'd like to cover because I know that one of the concerns and one of the difficulties of this case is applying the concepts of the statute to California's unique system.

Now, California's system of original writ should be subject to the rule that tolls the entire period of time for two reasons.

First, that is the best understanding of the text of the statute because California's system--

Chief Justice Rehnquist: The text of AEDPA or the text of California's statute?

Mr. Ogden: --Of AEDPA, Your Honor, of... of section 2244(d)(2).

Because California's system functions as an integrated appellate style process for prisoners seeking to exhaust State remedies.

And second, because just as in other States, the so-called gap theory espoused by the State would discourage prisoners from making full use of California's process and encourage premature Federal filings.

Now, turning to the text of the statute... and Justice Scalia asked about the... about the word application in particular... Congress wrote a statute in general terms intended to apply nationwide.

It does not turn on the particular form of pleading or the nature of the action.

To the contrary, an application within the meaning of the statute is simply a request for relief so long as it is submitted in the context of, as the statute phrases it, State post-conviction or other collateral review.

Now, that request for relief is distinct from the claims that support it, and it is pending so long as it... as it is unresolved in the State system.

Chief Justice Rehnquist: You... you say the... the application is distinct from the claim.

Granted, both words... how does that work out?

Mr. Ogden: The claims are the arguments that support the request for relief in... in a habeas or post-conviction context.

Typically the request is to be released from an unconstitutional confinement.

That request is supported by... by a set of claims.

And... and it's the request that constitutes the application.

Justice Scalia: But, you know, we were confronted with precisely the same argument in Artuz which dealt with what constitutes a properly filed application.

And the argument was if the claim is not a proper claim, if it does not lie under the State law, it is not a properly filed application.

And we held, no, that's not so.

An application is an application and a claim is... is a claim.

And the... the application is properly filed so long as it's given to the... you know, to the proper clerk in the proper court and... and so forth.

Now, dealing with the very same... very same provision of law.

Mr. Ogden: Yes, Your Honor.

I believe my argument is entirely consistent with Artuz.

Indeed, it's... it's really based on the reasoning there.

Artuz makes a distinction between bars that go to claims and bars that go to the form of the... of the application itself.

My submission is that the application is the request for relief, that is, regardless of what form it takes and what kind of proceeding, it is a request that contains claims in the same way that an application contains claims.

A request is an application.

And that request, the request for relief, continues to be pending within the meaning of the statute until the... until it is resolved within the State system.

Now, in the California system, that request for relief, that request to be released from confinement, continues to be unresolved so long as there is another court to which one can bring a... a petition to review a decision.

Chief Justice Rehnquist: Or presumably you could go back and forth to a number of California courts, if you come up with, you know, a different argument and that sort of thing.

Mr. Ogden: Yes, Your Honor, you could present different claims.

But the way the California system functions is that the... the design of it where factual development is required, quite naturally, is that that claim should be brought in the superior court.

As we say in our brief, if you attempt to file an original petition initially in a higher court and factual development is required, typically if it's a non-capital case, what that court will do is to issue an order to show cause, returnable in the superior court.

And once you are there as a... as a petitioner, if you lose, your only recourse for further review is to file an original petition yet again above.

Now, critically from the standpoint of understanding whether this is an appellate system or a system of completely independent free-standing applications, it's important to understand that when one goes from the superior court where one develops a record, Your Honor, to... to the court of appeal, that... that next filing is not considered a successive petition under California law.

It's not considered a second--

Chief Justice Rehnquist: What do you mean... what do you mean by a... do you mean the same thing as an original petition?

Mr. Ogden: --It's called an original writ.

Chief Justice Rehnquist: Yes.

So, what... what do you mean by the term successive?

Mr. Ogden: Successive petition is a procedural bar under California law, which if you bring a second petition that contains claims that could have been, but were not, contained in your first petition or that contains the same claims as were contained in your first petition, it's dismissed as a matter of procedural law in California as a successive petition.

That successive petition bar does not apply--

Justice Breyer: What does it look like in practice?

I mean, I had thought, as you were saying, that whatever they call it, they call the trial court original, they call the court of appeals original, they call the supreme court original.

But despite that, to an outside observer who wasn't looking at the names, it would look pretty much like any other State where you get an initial hearing and then you get some appeals.

Now, there's obviously the difference, you could file new claims at the second level, but leaving that aside, it would look... now, the attorney general said I'm wrong on that, absolutely wrong, that that isn't what it looks like, that sometimes at least it's random, sometimes they... they... just as many might likely file, I guess, in the court of appeals as the district court.

They might file in the supreme court.

Maybe they look for appeal in the... in the trial court.

I don't know.

But it's a random and... and, indeed, if you go to the court of appeals, you'll see they don't even look at the record in the trial court.

All right.

Now, he says that's how it's worked.

He's been around a long time.

And at that point, I'm not sure what to do frankly.

Mr. Ogden: --Well... well, it's... it is difficult because so much of this turns on California law.

But--

Justice Breyer: I mean, what does it look like?

I don't know how you get to that question.

Mr. Ogden: --Well, what... what it looks like, as described in a case called In re Resendez, which is not cited in our brief is--

Chief Justice Rehnquist: You didn't--

Mr. Ogden: --19 P. 2d, Pacific Second, 1171.

Chief Justice Rehnquist: --What's the date of that case?

Mr. Ogden: It's 2001, Your Honor.

Justice Scalia: Pacific Second?

Mr. Ogden: Pacific Third, 1171 at 1184.

That... that case makes clear in discussing the situation in which a subsequent original writ is filed... originally filed in the superior court and you have findings of fact made by the superior court.

It is then filed subsequently in the court of appeal and then--

Chief Justice Rehnquist: When you say it is then filed, what do you mean by it?

Mr. Ogden: --A petition encompassing the same claims is filed in the court of appeal and then again in the supreme court.

First of all, the record is... the record generally forms the basis for that review.

And in Gardner against California in 1969, looking at this very system for... for handling habeas petitions on original writ, this Court decided that the system was sufficiently similar to an appellate process that a habeas petitioner filing an original writ in the court of appeal was entitled at State expense to a transcript of the proceeding in the... in the superior court because the procedure in the court of appeal is essentially record review.

Justice Scalia: Mr.... Mr. Cross said... and it would be extraordinary if it's record review, but you don't have to file the record.

When... when you go into the court of appeals, do you have to file the record of... of the decision below?

Mr. Ogden: You certainly can file the record and the clerk can request it.

Chief Justice Rehnquist: Do you have to?

Justice Scalia: Do you have to?

Mr. Ogden: I don't know the answer to that, Your Honor, as to whether it's required.

Justice Scalia: Is it ordinarily done?

Mr. Ogden: I... I think ordinarily there... the record consists of the petition and the decision below.

But if there is a hearing where witnesses are presented, I believe it is ordinarily done, and that's why--

Justice Scalia: That's not what the... that's not what Mr. Cross said.

Mr. Ogden: --That's--

Chief Justice Rehnquist: What is your... I mean, Mr. Cross apparently has been practicing in California for 15 years.

I think if you're going to make... you don't claim to be personally familiar with California law, do you?

Mr. Ogden: --No, I don't, Your Honor.

Chief Justice Rehnquist: Okay.

Then I think perhaps you should cite some authority.

Mr. Ogden: Well, I... I cite for the proposition that... that the record is part of the... the process in the court of appeal, both the Resendez case--

Chief Justice Rehnquist: But you say the record is part of the process in the court of appeal.

That's a very, very vague statement.

Mr. Ogden: --Well--

Chief Justice Rehnquist: What we want to know is typically in an appeal, you'd have a record from the superior court.

You're appealing from the superior court or the district court of appeal, you have to... you must file the record.

It's a part of the... before the court of appeals will hear your claim.

Mr. Ogden: --The best I can do, Your Honor, is to refer to these three cases... the Resendez case, the California Supreme Court decision at... which I've given the cite for; In re Wright, which is 78 Cal. App. 3d at 801 to 802; People against Singer, which is 226 Cal. App. 3d at 32... which make clear that the process of reviewing these matters coming from the superior court where there's been a prior petition there and the same claims are brought in the next court is a process of reviewing the record, and where what is presented are findings of fact by the superior court that are based on credibility determinations, great weight is given to those credibility determinations by the reviewing court.

And... and that is the... the fundamental functionality, the way the system works.

It can be used in other ways without question.

A petitioner can attempt to file, you know, claims at a higher level.

Justice Breyer: You've practiced here a lot.

I mean, if the... if the superior court decision in a State habeas matter is a final decision and there's no more review of it in the State, I guess then we have jurisdiction to review that.

But I have never seen someone come here directly from the decision of the superior court of California in a State habeas matter.

Maybe they just haven't thought of it.

Mr. Ogden: Well, no, Your Honor, they're not permitted to, and I think that's a very important--

Justice Scalia: We wouldn't issue habeas when... when you have failed to exhaust all of your State remedies whether it's by appeal or not by appeal.

If you still have State remedies available, we wouldn't issue Federal habeas.

It... it would be useless to come here.

Mr. Ogden: --This... this Court's decision in the O'Sullivan case has been applied by the Ninth Circuit in... in the case called James against Giles, which states that it is a requirement, in order to fully exhaust one's State remedies, that one file and submit one's claims to the California Supreme Court.

Justice Scalia: Of course, and that applies whether it's an appeal or whether it's an independent action.

I mean, it... it sheds no light upon... upon the central issue here.

Mr. Ogden: Well, I--

Justice Scalia: Whichever one it is, you have to exhaust those remedies before you apply for Federal habeas.

Mr. Ogden: --I think it sheds substantial light on it, Your Honor, because as was made clear in Duncan against Walker by this Court, the very purpose of this tolling provision is to facilitate and to, indeed, promote the full and complete exhaustion of State remedies.

Justice O'Connor: Okay.

Well, let me ask you this.

Suppose that a... a prisoner has filed in California for State post-conviction review in the superior court and then in the court of appeals and then makes no filing in the State supreme court, could but years go by.

Then there's a petition filed for habeas in the Federal court.

Now, the Federal court under your view presumably would have to say, no, it's still pending in the State court.

Mr. Ogden: I believe the appropriate course for the Federal court in that situation--

Justice O'Connor: What would you do?

Mr. Ogden: --would be to apply this Court's decision in O'Sullivan against Boerckel and deem the petition to be unexhausted.

At that point, the petitioner could apply to the California Supreme Court.

Justice O'Connor: And say it is unexhausted and... and the... a Federal statute of limitations hasn't run.

Mr. Ogden: Because simply it's unknowable.

You asked the question earlier whether... who decides whether it's a reasonable time or not, and I think it's very clear the design of the statute of... of 2244(d)(2) is that the State of California decides.

Whether something continues to be pending in exhaustion law is a question of whether it is possible whether there is a... an available procedure under State law to raise the claim to a higher level.

Justice Kennedy: Okay.

Let's... let's continue that hypothetical that Justice O'Connor gives.

There's a long wait, years of wait.

They go to the... the prisoner goes to the California Supreme Court.

The California Supreme Court said, you are late.

You have lacked diligence.

We will not rule on the merits.

Dismissed.

When does the Federal statute... how does the Federal statute apply there?

Mr. Ogden: That implicates a... a circuit split that's not presented in this case, Your Honor.

There is a difference of opinion among the circuits about how to apply the... the endpoint of... of the tolling process.

In the majority of circuits, tolling terminates at the point it is no longer possible to file a--

Justice Kennedy: What is the position that you urge upon us here in that instance?

Mr. Ogden: --Your Honor, I don't believe it's... it is important for my client what the answer to that question is because the second point I want to make this morning is that the submission to the California Supreme Court was not late under California law.

Justice Kennedy: I'm trying to... I'm trying to interpret the statute, and so I imagined this case and I want to know how it would come out--

Mr. Ogden: I think the most--

Justice Kennedy: --under your view.

Mr. Ogden: --I'm sorry.

I think the most natural interpretation of the statute is the majority of the court's view which is that it continues to be pending until it is too late to file a submission, and then the opportunity to file... if you file for leave to file out of time, that would then resume the tolling if that motion were granted.

In California, that--

Justice Scalia: Retroactively.

I mean, there's a split.

There are real problems and... and those problems, as well as the problems with the California system, seem to me good reason to read the statute the way it's written so that there has to be an application pending, not... not a case pending, but an application.

On appeal, it could be the application of either the petitioner or the government if it lost, but the only time counted is the... is the time during the pending application.

Then you would not have to worry about these problems.

What happens if they accept a... you know, a late petition?

Does it automatically toll retroactively for the... for the period after the due date and so forth?

Mr. Ogden: --Your Honor--

Justice Scalia: None of those problems exist if you... if you say it's pending when it's pending.

Mr. Ogden: --I think those problems are more complicated in a system like California's or North Carolina's which is an appellate system that involves an unreasonable delay standard than they are in a... in a system that has clear time lines.

And California and North Carolina, if they don't like the way it's playing out under their provisions, can simply create time lines--

Justice Ginsburg: Mr. Ogden--

Justice Kennedy: --Just so... just so I understand your answer.

In the case that I put that I didn't quite get the whole... the California court says, you've waited 4 years.

That's too late.

How do I apply the statute of limitations to that context or the pending rule that we're discussing?

Mr. Ogden: --I... I believe there are about three different ways that you can--

Justice Kennedy: And what is... what is your submission as to how we ought to interpret the rule in that instance?

Mr. Ogden: --My submission would be that until the California Supreme Court indicates how long the time period is that... that he would have had to file, the best thing to do is to look to evidence of other cases that have been decided by California to determine what is an acceptable gap in the process.

And that's why in this case the evidence is absolutely overwhelming that the 4-and-a-half-month period that the State relies on simply wasn't the basis for the California Supreme Court's decision.

Justice Ginsburg: How is that?

It seems to me the record is a blank on that, and with all this talk, if you don't count those 4-and-a-half months, he's timely no... no matter whether it's discrete applications.

So, what do we do?

He says, I never got that notice.

And it's not established in the record whether he did or he didn't.

Mr. Ogden: Well, the only evidence in the record is that he did not.

He submitted a sworn statement to that effect in the California Supreme Court in his petition.

But as the Ninth Circuit said, there are two possible bases for the lack of diligence finding in the record.

One is 5 years before he filed his initial claim.

The other is this 4-and-a-half-month period in which he says and swears that he did not receive notice.

The... when you look at the record of the minute orders that have been entered by California on the very day and in the very weeks... the California Supreme Court... around when Mr. Saffold's case was dismissed, you see that cases... for example, the Davis case.

There was an 18-month gap between the decision in the court of appeal and the petition in the California Supreme Court, and the California Supreme Court simply denied it, which under the Ylst standard, looking through, goes back to the merits determination before.

No lack of diligence, no untimeliness.

In the Sampson case, over 9 months had elapsed between the court of appeal decision and the supreme court decision.

Again, absolutely no indication of a lack of diligence or untimeliness.

In the Viegas case, over 7 months elapsed between the court of appeal and the decision... and the petition.

No explanation from Mr. Viegas, as there wasn't from Davis and nothing meaningful from Sampson for the delay again.

And the Saenz case is another.

So, there are those four--

Chief Justice Rehnquist: Is... is there any... some possibility that those perhaps inconsistent rulings coming from the Supreme Court of California might be based on what Mr. Cross referred to as the division of opinion within that court as to whether they should give any sort of an explanation?

Mr. Ogden: --Your Honor, I think anything is possible because, as... as somebody said, we're in a mind-reading mode here, and so certainly that's possible.

And I can't stand here and tell you it is impossible that they simply acted in an... in an irrational and inconsistent fashion.

The fact is while Mr. Saffold submitted a... an explanation which, at least on the surface, has some appeal to it, none of these others did, and yet much longer periods of time--

Justice Scalia: That's not the basis on which the Ninth Circuit decided the case.

It did not resolve whether, you know, the 4-and-a-half or the other one.

It... it did not do it.

It just simply said, since the Supreme Court of California alternatively addressed the merits, that's the end of it.

And so you're... you're not defending their basis for... for deciding the case?

Mr. Ogden: --I think it's somewhat unclear what the Ninth Circuit's basis was, Your Honor.

I concede that.

To the extent that the Ninth Circuit held that a... a ruling on the merits would trump a clear finding by the... by the California Supreme Court that the petition to it was untimely, I think that would be an... an incorrect interpretation of the statute.

That's my view.

Justice Stevens: What would you say to the possibility that we might certify the question to the California Supreme Court whether this case was dismissed because it was untimely?

Mr. Ogden: The critical question would be whether the case was dismissed based on the gap between the court of appeal and the supreme court as opposed to the... the portion that preceded the original filing in the... in the trial court which obviously could not make the case stop pending once it began to pend.

But I believe that certification would not fit the profile in California for certified questions.

They... they certify questions of law, and this is... this is an--

Justice O'Connor: Have... have any courts considering this AEDPA statute applied it in the way Justice Scalia suggests that we look at pending and place all the emphasis there and exclude all time after a decision by a State court until the next filing?

Mr. Ogden: --11 courts of appeals have considered that issue to this point, Your Honor, and all 11 have adopted the view that the entire period of time should be tolled.

Chief Justice Rehnquist: Were any of them dealing with a system like California's?

Mr. Ogden: The Ninth Circuit in this case and in the Nino case previously, but no other... no other... none of the other cases really deal with that--

Justice Breyer: Can we use Justice Scalia... he just suggested an idea that... that... if this is right factually as to how it works.

Suppose you go into the district court... the superior court, trial court.

All right.

Now I get a decision there.

Now, I take it, under California law, I cannot file a complaint about how the judge decided it, i.e., an appeal, quotes, in any other superior court, but I can do it in a higher court.

Am I right?

Because they'll treat it as successive if I go to the parallel level, but if I go to the next level, they won't treat it as successive.

Mr. Ogden: --That's my understanding.

Justice Breyer: But then if in fact I wait too long, I'm beyond a reasonable time.

Mr. Ogden: That's correct.

Justice Breyer: And so, to put in terms of exhausted, unexhausted as if he did... as he did, you'd say the only unexhausted remedy you have left to you, once you're in the superior court, is to go up, as long as you do it within a reasonable time.

But once you exceed the reasonable time, you're out.

Mr. Ogden: That's correct.

Justice Breyer: All right.

So, what we would have to say is that that system, looking to the exhausted instead of the technical word appeal, we'd get to approximately the same place, and then our issue would be, well, was this beyond a reasonable time or not.

And then I'd have to say maybe we don't know.

We'd have to find out in some way or other.

That... that--

Mr. Ogden: Well, I think the general description is fine and I think it's true that we don't know whether it was considered unreasonable by the California Supreme Court.

Justice Breyer: --I mean, I can't see how we can accept the Ninth Circuit's reasoning frankly because they said the very fact that they say both, the very fact that they say we'll consider it on the merits but it's untimely, that that means that it wasn't untimely.

Of course, they didn't use the word untimely.

They used a different word which is harder to understand.

Mr. Ogden: Your Honor, I think that we... it's... while we don't know, I think that a fair reading of this record would lead one to the conclusion that it was not the 4-and-a-half months.

When we have four other cases, two of them decided the same day, one of them decided--

Justice Breyer: But it's way beyond what any other State would have, isn't it?

4-and-a-half months?

Unless there's some excuse here that he didn't get the record or he didn't know about it.

Mr. Ogden: --Well, North Carolina has an undue delay standard.

Massachusetts, until just very recently, as the First Circuit explained in the Curry case just last week, previously had no time limit, has now imposed a 30-day time limit presumably to deal with some of these problems.

The times in other States vary.

4-and-a-half months is... is somewhat longer than the certiorari time in this Court, but it's not by an entire order of magnitude.

And the point is that the California Supreme Court routinely seems to reach the merits despite this period.

And in this case we have a 5-year delay staring us in the face in which the only justification offered by Mr. Saffold was that he needed to hire a private investigator to... essentially to interview the jurors.

The magistrate judge in this case, applying the due diligence standard of Federal law, which is in 2244--

Chief Justice Rehnquist: This was a Federal magistrate?

Mr. Ogden: --The Federal magistrate, yes, Your Honor, in... in this case applying the Federal due diligence standard.

Mr. Saffold suggested that the time should be tolled for... for the running of the entire period because he had not discovered these claims.

And the Federal magistrate, looking at it, said, well, you should have discovered these claims long before.

you didn't exercise due diligence.

I think looking at the face... at the... at the joint appendix at 38, looking at the face of the application Mr. Saffold submitted to the California Supreme Court where he attempts to justify the 5 years on that basis and notes, with respect to the 4-and-a-half months, that he only received notice the very day he filed, the only reasonable interpretation is that they relied on the 5 years, a period of time irrelevant to the question of whether review in the supreme court was unavailable.

And therefore, it is... it is... it would be unreasonable for this Court to suppose that... that the period was the 4-and-a-half months.

This is somewhat similar to the approach to questions of... of... related to procedural bars that this Court adopted and modified in the Coleman against Thompson case where... where an underlying State decision leaves reason to question whether the Federal bar is applicable, this Court has gone ahead and decided the... the merits of the Federal claim because it's entirely within the power of the State, the State of California or in the Coleman v. Thompson circumstance, to be clear about the fact that what was the period and when did it expire, or alternatively, simply like most States, to have a clear, definable period of time in which--

Justice Scalia: Didn't the... didn't the superior court here, or at least the magistrate did, made a specific finding to the effect that the 4-month delay was not excusable, that it was an excessive delay?

Wasn't there that finding below?

Mr. Ogden: --The magistrate did not find that he received notice earlier than he says.

What the magistrate said was that he should have been more diligent in calling the court and contacting them and so forth.

Justice Scalia: But it was a finding that the 4-month period was the... was a period of inexcusable delay.

Mr. Ogden: He indicated... suggested that he would not--

Justice Scalia: So, to say that that couldn't have been what the supreme court was thinking of strikes me as implausible.

Mr. Ogden: --Your Honor, I'm not saying that it couldn't be.

I'm saying it's far less likely that it was.

Justice Ginsburg: But that wasn't reviewed by the Ninth Circuit.

Mr. Ogden: No.

Indeed, the Ninth Circuit left open the question of equitable tolling which depends on that... on that fact.

And furthermore, again, it doesn't go to whether he received notice.

It's simply the opinion of the magistrate that he should have called the court or sent a letter to the court or done something within that 4-and-a-half-month period.

Justice Kennedy: I do... I do want, if I can, very quickly to get to the question that Mr. Cross said was very difficult and you raise it at pages 24 and 25 of your brief.

You say what... what happens if the... under the theory that the petitioner proposes, if the State files an appeal when the State has lost.

And the Chief Justice said, well, that shouldn't be a problem because we can then easily say that the application is still pending.

How long does the State have to appeal generally?

Mr. Ogden: I believe it's 30 days in California.

Justice Kennedy: So, then... so, then it seems to me that isn't a problem.

A, it's just 30 days, and B, you can say that it's still pending.

So, that's not a big problem.

Mr. Cross, whose right of rebuttal we've demolished, so I can't ask him, has said that that's a very hard question.

Mr. Ogden: Well, I think it's a very hard question for him because his... his gap theory taken to its literal extreme, taken to... to the application that it would... that... that gaps are not tolled, even in a... an appeals situation, would cause that entire period of time on the State's clock to run.

Justice Kennedy: But why can't we easily say the application is pending so long as the State has an appeal--

Mr. Ogden: Well, that--

Justice Kennedy: --prevail?

Mr. Ogden: --That would... that would undermine the so-called gap theory in every State but... but California where typically you do have appeals on both sides.

In California, you have a State appeal and a functional appeal on the petitioner's side.

And so, the argument could be made... I think it's a hyper-technical argument.

I think it's an argument that's inconsistent with the purpose of this statute, but you could make the hyper-technical argument that because California gives unequal rights to the two sides, an appeal on the one hand and a functional appeal on the other, we're going to treat the functional appeal in a different way for Federal purposes.

I would submit there is no way that Congress intended to take a functional appeal that has the purpose of... of presenting claims that are required for exhaustion and said, we want to treat that differently because it's merely a functional appeal, not a real appeal.

That makes no sense.

All of the reasons why tolling should apply in the gaps prescribed by the State, the period the State believes is appropriate for the presentation of these claims, the period the State believes prisoners should have in order to prepare and present their claims, that we're not going to toll that, the consequence of that will be that petitioners will not wait for the transcript.

They will file their... their motions in the... in the court of appeal without transcripts.

They will not develop their arguments well, and then those arguments will finally be made for the first time effectively in the Federal court.

That is not what was intended by the statute.

Rebuttal of Stanley A. Cross

Chief Justice Rehnquist: Thank you, Mr. Ogden.

Mr. Cross, you have 1 minute remaining.

Mr. Cross: I think the answer to Mr. Ogden, Your Honor, is that the reason would be that Congress was concerned about undue delay.

In the last 10 years before AEDPA was passed, over 80 bills were attempted to... to deal with this problem.

And lack of diligence by petitioners was the main concern of Congress, and they dealt with that by writing into the statute the following phrase.

2244(d)(2) at page 3 of the blue brief.

Quote, the 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 limitation under this subsection.

They did not choose to use the... the language petition in 2263(b)(2), nor did they choose to use the language in 2244(d)(1)(A) of the time for seeking such review.

They chose application for the reason that Justice Scalia was talking about.

They were concerned that there would be undue delay in between applications.

Chief Justice Rehnquist: Thank you, Mr. Cross.

The case is submitted.