Lawrence v. Florida - Oral Argument

Argument of Mary Catherine Bonner

Chief Justice Roberts: We'll hear arguments next in Lawrence v. Florida.

Ms. Bonner.

Mr. Bonner: Mr. Chief Justice, and may it please the Court:

Mr. Lawrence in this case made an application for relief in the state courts of Florida, that unfortunately was denied to him, the relief that he sought.

Consequently, he came here to the United States Supreme Court on a certiorari review and the certiorari, although it was denied, he did present to this Court an issue on which it could have acted had it chosen to act.

It is well within the power under 28 U.S.C. 2104 for this Court to modify, vacate, remand.

In other words, this Court can and could have affected that judgment.

Our position is that this... there is a distinction between the, quote, 2104 and the original writ of certiorari which would lie in this Court in some instances.

When one uses the appeal, one is not making a new application.

We respectfully suggest that the utilization of the emphasis in 2244 should be on application and what was before this Court on petition for certiorari was the application, the document, the issues, which had been presented below in the Florida courts and this Court was sitting to determine whether it would--

Chief Justice Roberts: It would presumably, though, be limited in some ways.

For example, if the application for state post-conviction relief raised arguments under state law, those would not be a proper subject of a petition for certiorari.

Mr. Bonner: --Absolutely not, Your Honor.

And the issues which were raised were the same ones that were raised in the state court and were of constitutional dimension that Mr. Lawrence raised here.

But our point is if the emphasis is on the application, then until the finality of action on the application--

Justice Scalia: You're saying the application is the application... the petition for certiorari is the application?

Mr. Bonner: --No, sir.

I'm saying the application under 3850 in Florida state trial courts, which then goes to the Florida State Supreme Court, is the application upon which this Court would be acting.

If it were not acting on that, what would it be acting on?

Justice Scalia: Well, we can't act on it unless, unless it's final.

We, we need final action by the state court, don't we?

Mr. Bonner: Well, except--

Justice Scalia: How can it be final action and yet still be pending?

Mr. Bonner: --To utilize the word "final" there would be... we can use the word "final" after a jury determination and that in one effect, in one sense, is final.

And when Florida is done it's final in some sense.

But it's not final under 2104 because this Court can modify it, can remand it.

Justice Scalia: It's final as far as the application for state review is concerned.

Mr. Bonner: There... it is the--

Justice Scalia: Which is the text that we're dealing with here.

Mr. Bonner: --Yes.

It is the application for state review which comes before this Court.

We're asking you to review the lower court's rulings on the application.

Justice Breyer: I take it you're talking about language, if I followed it, in 2244(d)(2).

Mr. Bonner: Yes, sir.

Justice Breyer: And it tolled the statute while the

"properly filed application for state post-conviction or other collateral review is pending. "

So the question is during the 90 days after they said no to you in the state court and you had a chance to file the writ, is that application pending?

And you say yes, that application is pending, that application is pending and subject to various motions, such as a motion or a petition for certiorari.

Mr. Bonner: Yes, sir.

Justice Breyer: But it is pending.

Mr. Bonner: Yes, sir that is--

Justice Breyer: That's where we are in this argument.

Mr. Bonner: --That is exactly our position.

Justice Breyer: Thank you.

Mr. Bonner: That this application is pending.

Chief Justice Roberts: Of course, the other way to read the language is that the state application is final... otherwise you couldn't file the Federal petition for certiorari, and that petition may affect what happens with your application for state relief, but the state application itself is final and over.

Mr. Bonner: In that sense it is not final in that it can be altered and that this Court can order--

Chief Justice Roberts: Well, it has to be final before you can file a petition for cert.--

Mr. Bonner: --Yes, sir.

It's the vagaries of the use of the language--

Justice Breyer: Does it say that?

I would have thought it said that there has to be a final judgment of the lower court, and the final judgment of the state court concerns that application which is still pending and will continue to be pending at least for 90 days in your view.

Mr. Bonner: --Yes.

Justice Breyer: So it doesn't require a final state application.

It requires a final judgment about the state application.

Mr. Bonner: Yes, that's exactly true, sir.

Chief Justice Roberts: --So what about the argument raised by your friend that exhaustion doesn't require filing a petition for certiorari, that the state procedures are considered fully exhausted upon the final decision in the state court and that it makes sense to treat this, this 2244, in a parallel way with respect to the exhaustion requirement?

Mr. Bonner: Well, Your Honor, first of all, it would require this Court to substitute the word "exhaustion" for the word "pending" in the statute.

There is no reason to believe and there is much reason not to believe that Congress intended exhaustion has a concept which should be read into this particular context in which we're dealing.

In point of fact, in the 1995 proposal for habeas reform the word "exhaustion" was in there.

It was taken out in 1996.

Unfortunately, the Congressional history and the speeches on the floor, etcetera, are not really illuminating, except the concept of exhaustion apparently the legislature, the Congress, felt would be subject to interpretation differently in different states.

Chief Justice Roberts: How do you know what is pending with respect to when the state defendant, movant, doesn't file a petition for certiorari?

Is that--

Mr. Bonner: Well, I believe.

Chief Justice Roberts: --Is the state post-conviction application still pending on the 90th day?

Mr. Bonner: I believe it is, Your Honor, and I think the logic that this Court has used in the context of 2255's obtains as well, and it... it is pending because the reason that we have 90 days... it's an unusual amount of time that we have to come to ask this Court for relief.

And I believe that part of that time and part of the reason for the existence of that is that we can contemplate whether we should be filing a petition for certiorari.

Chief Justice Roberts: Well, anybody who wants the additional time... this law was passed to prevent people from delaying.

But anybody who wanted to delay would then have to file a cert petition, I assume?

Mr. Bonner: I would suggest to you, Your Honor, that it should be... this should be construed the same way that the finality of a state conviction, the finality of a Federal conviction, and the finality of a 2255 are determined, and that is at the time that either this Court has dealt with certiorari by denying or granting it or that 90 days has, has been--

Chief Justice Roberts: But if you filed... so you say you get 90 days whether you file or not?

Mr. Bonner: --Yes, I do, sir.

Chief Justice Roberts: But if you want the additional time that it takes for an opposition, for waiver of response, for this court to dispose of it, then you have to file a petition for cert?

Mr. Bonner: I don't... that is not my position, Your Honor.

I believe that the 90 days should obtain no matter what so that we'll have a universal--

rule.

Chief Justice Roberts: Right.

Mr. Bonner: --that practitioners will not be making this error because they will be acting in concert--

Justice Ginsburg: But the Chief's point is that if a petition is in fact found it will end up being more than 90 days because then you would have, in addition to the 90 days you'd have to file the cert petition, the time it takes for this Court to dispose of the petition, and the statute of limitations would be tolled throughout that entire period, not just a fixed 90 days.

Mr. Bonner: --That is true, ma'am.

Justice Ginsburg: Do you... does your argument mean that a defendant who wanted to file within the 90 days, wanted to file in the district court, wanted to file the habeas application in the district court within the 90 days, couldn't do so because it would be premature because the, the state application is still pending?

Mr. Bonner: I believe that the way that we have been seeing the opinions come from this Court and from the various courts around the country are that there seems to be a favorable disposition to protective 2254, 2255 petitions.

I agree with the premise of Your Honor's question that it would be pending and it would be pending here and therefore, you should not go to district court and file a 2254.

Now whether you can and you can do it in a protective fashion is another entire issue which isn't really raised here because he did seek certiorari review.

Justice Alito: Do you read the tolling provision in 2263(B) the same way as you read the tolling provision that's before us?

Mr. Bonner: No.

Certainly I do not.

And the state really did not analogize to 2263 as I believe perhaps they should have analogized to it.

2263 of course is the opt-in provision which moves things along on an even quicker track than a one year, and you have 180 days to file, and the Congress was absolutely clear and this was enacted at the same time that the provisions at issue were enacted, that it was 180 days after final state court affirmance and you had to, you had to file.

That's it.

Justice Alito: Do you think Congress really wanted to have two different, entirely different tolling concepts in these provisions?

Mr. Bonner: I think they did, and one of the reasons that I believe that they did, number one was to achieve their goal of moving things faster if the states were able to guarantee counsel, and the second is that they told, as well, in 2263(B) the main difference between 2263(A) and (B)(1) is that the time when you're getting your certiorari petition ready for this Court under the opt-in provision is not tolled.

But the time when this Court is considering the post-conviction certiorari request is tolled.

It's tolled clearly by statute.

I cannot presume and would not presume that what Congress did was write these in numerical order and when it got to 2263 come up with a new and exciting idea, and then not go back to 2254 and 2244 to change the language there.

I think Congress meant something different.

And what it meant was the trigger time, the time that was going to be elapsing between the petition, between your final decision and when you could go to certiorari.

Chief Justice Roberts: You know, what about 2244(D)(1)(a) where Congress referred expressly to the time for seeking direct review or the expiration of the time for seeking such review?

Your reading of D(2) is that that's what they meant when they said the state application was pending.

The state application or the time for seeking review of the state application, and in... just in just a few sections above that they expressly said that shouldn't we read pending in a different, different direction?

Mr. Bonner: Well, the distinction, I have at least two things to say about that.

The distinction between the two sections, that would be (D)(1)(a) and (D)(2), one is dealing with one thing, a judgment which has reached finality and it is determining when that judgment is final.

They would have had to rewrite the tolling provision because it is not speaking about a judgment.

It is speaking about an application which is a process.

And the second thing is that--

Chief Justice Roberts: Well, they would have just said during the time of the application for state post-conviction, or the expiration of the time for seeking review of it.

Mr. Bonner: --I believe that Congress is presumed to have read, written its laws knowing the history of interpretation of this Court.

And pending has a very long tradition and this Court's role in the state-Federal continuum obviously is of well defined 200 plus-year-old role, and the part of that role is that you as this Court are the final arbiters and the only true people who can make the decision about what the Federal Constitution says.

The state would have you read this as if it says application for state post-conviction relief is pending in the state court.

I would be hesitant to rewrite the statute since Congress did not invite me to do so as the state has actually done by saying, pending in the, in the state court.

And that is not the concept that we have lived with for 200 years or 200-plus years.

Pending means until it is, cannot be any longer acted upon, and it is clear here, you as this Court can upon it.

Justice Alito: Do you think the final, the judgment in the criminal case is still pending because it can be acted upon?

Mr. Bonner: Not the judgment in the criminal case, but I would suggest that the judgment in the 22... I mean the 385.1 procedures in Florida which would be that post-conviction application because that's where we are.

We have reached finality on the, after this Court has had, after we have either come to this Court for certiorari or the 90 days is exhausted.

Justice Alito: Are you saying, are you arguing that there, during this period, there is an application for state relief pending in the state courts or that there is an application for state relief pending in this Court?

Mr. Bonner: I am saying that the application in state court is yet pending when it is here, because that court can be ordered by--

Justice Alito: Where is it pending?

Mr. Bonner: --this Court to act upon it.

Justice Alito: Where is it pending?

Mr. Bonner: It is pending still in state court because this Court can order that court.

Justice Ginsburg: I thought your argument on brief was that it is pending here and the statute says pending.

It doesn't say pending, as your statute, you compared it with says.

That pending, the application is pending someplace.

Where is it pending?

Not in the state court anymore.

They have reached their final judgment, but it's still pending in your case here because you filed a petition for cert.--

Mr. Bonner: Yes, ma'am.

It just is, also, I... there is some case law which speaks to the fact that it remains pending or unsettled or unsure or unfinal when a court can order another court to act on it.

Justice Souter: In the same sense that it is pending after the trial court has acted but before the defendant or the petitioner decides whether he wants a state appeal.

Mr. Bonner: Yes, sir.

Justice Souter: I don't know where it's pending.

Whether it's still pending in the state trial court or in the state appeals court.

But nobody denies that it's pending.

And I understood your argument to be, whatever mending means there, pending means here because there is no modifier that would limit the same... the same construction.

Mr. Bonner: Yes.

That is... that is so, sir.

Chief Justice Roberts: But in what sense is it an application for state post-conviction review when it's pending before us?

We are considering a claim that the state erroneously decided a Federal question--

Mr. Bonner: You are--

Chief Justice Roberts: --but it's not an application, it's an application for our review, not state post-conviction review.

Mr. Bonner: --It began as a complaint.

This is, analytically, everyone seems to have a little bit of pause because of exactly the context of your, of your comment, of your question.

But there is only one lawsuit, complaint, whatever you wish to call it, which we are dealing with, and that is the one that seeks post-conviction relief in Florida.

If you're unsuccessful there, you go to the Florida Supreme Court and that same application is what we come to this Court on.

There is nothing else out there.

The state seems to tell us, or suggest to us that it's some kind of an independent state... uh, Federal action.

Justice Alito: It's a Federal writ, isn't it?

It's an application for a Federal writ.

It's not an appeal in state criminal... state case.

Mr. Bonner: But it comes under this Court's appellate jurisdiction versus its original jurisdiction for writs of certiorari.

Justice Souter: If you succeed you're going to get an order from this Court to the state court say, saying, go back in this state proceeding that has been begun, and do it right.

So the focus of it is still the state proceeding even though we may correct it under appellate jurisdiction.

Mr. Bonner: Yes, sir.

The state brings forward an argument that this certiorari before this Court is not a part of, not an integral part of and in fact not any part of the state process.

I believe they come to that conclusion because they insert what they wish the statute said, rather than what the statute actually says, and we are attempting as best we can to interpret what Congress did not, what you wish it did.

Chief Justice Roberts: Do you have any, I suppose this, we ought to know better, but how long the average disposition time is for a petition for certiorari in a case like this?

Mr. Bonner: I believe it's like 44 days if you don't--

Chief Justice Roberts: No.

From the time of, I suppose the pertinent question would be from the time of final state, final state judgment, eventual filing for petition for cert, opposition, waiver, our disposition?

Presumably, probably five or six months?

Mr. Bonner: --It's not usually that long.

This Court is very efficient with that.

And that's one of the points--

Chief Justice Roberts: Well, why don't you take, let's just if say you take 90 days, and you get--

Mr. Bonner: --You get 42 or so.

Chief Justice Roberts: --And you get a two month extension.

Mr. Bonner: Yes.

Chief Justice Roberts: Then you get another month for the opposition depending on what circuit you're from for the extension.

Get another month for the opposition, at least two months, month and a half, for us to dispose of it.

It probably comes out to about six months.

Mr. Bonner: It could, Your Honor.

Chief Justice Roberts: Now I guess... my question is, in a law that imposed a one-year statute of limitation, is this an implicit additional, I realize it's a question begging to some extent, but implicitly an additional six-month period would strike me as odd.

Mr. Bonner: Well, Your Honor, it is not a one-year statute of limitations per se.

That may be what looks good on paper with the writing of the statute and the expressing of the statute to the public, that one year is what's going to happen.

But when one takes into account the exhaustion requirement and takes that time out, we are still not talking about a 365-day process.

Justice Stevens: Let me ask on that, Ms. Bonner, what typically in Florida is the time elapsed between the conclusion of the criminal proceeding and the conclusion of the state collateral relief?

Mr. Bonner: It's quite a while.

Your Honor.

I wouldn't know the average.

Justice Stevens: But it's more than six months, I assume.

Mr. Bonner: It's a long time, Your Honor.

And--

Justice Stevens: Two, three, four, five years.

Mr. Bonner: --Yes, sir.

Justice Stevens: And all that time, the statute has been tolled?

Mr. Bonner: Exactly, till it's... that's why I don't look at exactly--

Justice Stevens: The question is whether there may be another six months added on to that five or six-year period.

Mr. Bonner: --Yes, sir.

And one of the important things here is--

Chief Justice Roberts: Well, the reason that's tolled is because it's designed to encourage the exhaustion of the state procedures.

This additional period is when it's pending, not before the state but before a Federal court.

Mr. Bonner: --But it's the state petition which is pending for your review.

And one of the things I want to point out is that the 90 days, when they passed habeas reform, they were not speaking about 30 days, 20 days, 60 days, 90 days or even the six months that Your Honor posits.

It was 10 years, 12 years, 14 years.

And that was I think the major impetus to encourage the Congress to put the 365 day on there.

This Court has complete control over the certiorari process.

You know, being lawyers we always do file at the last minute, but of course it's this Court's rules which gives us the 90 days versus another period of time.

It is, the petition for certiorari is not like a notice of appeal, because it's not just a one-page document that's laid out in the Federal statutes for us to do.

It's an application to, it's an application for review and it is, it takes some time to fashion.

Chief Justice Roberts: Any... any statistics on how many petitions for cert from state post-conviction collateral review are granted?

In other words, if we are talking about an additional six months in every case, how many of those are actually granted?

Mr. Bonner: I don't know how many are granted, Your Honor, but one thing that struck me as I was reading through these cases is that many are granted to the state.

And of course, when the state goes to certiorari from post-conviction, from a post-conviction loss on its side, then the whole process is turned on its head, and many, many times this Court has granted certiorari to the state.

And that is another problem that happens with this tolling if you read pending the way the state wants you to read pending, because what do we do then?

What do people do?

Chief Justice Roberts: No, but if the state is petitioning for cert it means you've won.

Mr. Bonner: It means you've won.

Chief Justice Roberts: So presumably you're not looking forward to further--

Mr. Bonner: No.

But what happens to the time?

How do you count that time if you lose here?

Justice Kennedy: I suppose you'd have to file a protective petition with the district court saying we won but we might still lose.

Mr. Bonner: I guess.

And... you know, a protective... to litigants, protective and to district court judges, I believe and state court judges, protective petitions are kind of anathema, because since you don't know what you're going to raise... and in the 2254 you have more of an idea, certainly, because you're limited in many instances if not all instances to those things which were exhausted... but obviously there are new claims that are brought up because there would not be a stay and abey.

There would not even be a request for stay and abey if there were things that the Federal courts find.

Chief Justice Roberts: --Assuming you make the same argument you make on questions 2 and 3 about--

the availability of equitable tolling.

Mr. Bonner: I'm sorry.

I didn't--

Chief Justice Roberts: I would be very surprised if the court found you were out of time because the state had filed a petition for certiorari.

Mr. Bonner: --I'd be surprised--

Chief Justice Roberts: And have it granted.

Mr. Bonner: --I'd be surprised too, but I've practiced a long time and I've seen some very odd things happen in courts and, both a stay and abey, and the other procedures that have been discussed by this Court have not been handed down as mandates to the lower court to require the lower court to rule in a certain way, or to absolutely stay, or to entertain protective motions and then permit those protective motions to be supplemented at a time later.

If Your Honors do not mind, I will reserve some time.

Argument of Christopher M. Kise

Chief Justice Roberts: Thank you, counsel.

Mr. Kise.

Mr. Kise: Mr. Chief Justice, and may it please the Court: Petitioner's case amounts to no more than a disagreement with AEDPA's recognized policies and procedures, and an improper attempt to convert ignorance of settled law into an extraordinary circumstance warranting equitable relief.

AEDPA's plain language and recognized purpose is established, that tolling does not extend to the post-conviction certiorari process.

Additionally, ignorance of settled law whether by an incarcerated pro se petitioner, by private counsel, or by appointed counsel is not an extraordinary circumstance and does not excuse prompt filing.

Justice Stevens: Mr. Kise, can I ask you what your view in this matter would be if the Court grants certiorari, would the application be pending during the period that the case is under advisement in this Court?

Mr. Kise: No, Your Honor.

And I'm assuming your question is asking me, grant certiorari based on an application filed by the petitioner.

Justice Stevens: Either way.

Mr. Kise: Well, in both circumstances the answer would be no, and in both circumstances I think the relief that would be accorded--

Justice Stevens: Let me ask a second question.

Suppose it were reversed, we send it back for further proceedings in the state trial court, would you say that it's still not pending during the further proceedings?

Mr. Kise: --It may be pending in state court during the further proceedings, but it's not pending during the time that it is at this Court, because this Court has not--

Justice Stevens: So it started pending again after an interruption, is that the way it would be?

Mr. Kise: --Based on equitable principles, I think that would be the interpretation, yes, Your Honor.

Justice Stevens: Forget about equitable principles, statutory principles.

Is there a lack of continuity, where you could have it pending for a period of a couple years and then an interruption, and then it can resume pending after the interruption?

Mr. Kise: You're using the phraseology interruption, and I would, would--

Justice Stevens: Well, period when it's not pending followed by a period when it begins to pend.

Mr. Kise: --In that unusual circumstance, Your Honor, I think principles of equitable tolling would apply to keep the petitioner's ability to file.

Justice Stevens: But there would be no statutory right in your view, it would depend on the equitable considerations?

Mr. Kise: I believe that's correct, Your Honor, because statutory pending contemplates a finality, it contemplates... and I think that this is, it is one of the fundamental problems, I believe, with petitioner's construction, is this ignoring of not only the plain language of the statute but what this Court has said about this statute, about 2244(d)(2).

In Duncan this Court said that state, the word state modifies both post-conviction and other collateral review, and established that we are talking about a state application.

Justice Souter: But it doesn't say state pending or pending in state court, and what I want to do is go back and ask a question somewhat along the lines that Justice Stevens asked.

Is the application pending in the period between the disposition of the petition by the state trial court and the determination by the petitioner whether or not to go forward for state appellate relief?

Mr. Kise: Yes, Your Honor, I believe it is, and I believe that's what this Court said--

Justice Souter: By the same token, why isn't it pending between the final disposition by the state appellate court and the determination to seek cert here?

Mr. Kise: --Well, I have two answers to that, Your Honor.

First would be, that's inconsistent with the language utilized by this Court in Carey where the Court defined pending as until final resolution through the state's post-conviction--

Justice Breyer: That was the issue in that case.

This issue wasn't in that case.

Mr. Kise: --Correct, Your Honor, but the language utilized nevertheless--

Justice Breyer: I can't when I write something, I don't think I or anyone else can, if it happens to be a state case, refrain from using the word state.

I wouldn't say there is an implication in writing an opinion that it doesn't mean Federal as well.

As least I can't find that written in the opinion anywhere.

Mr. Kise: --Fair enough, Your Honor.

Then with respect to the second part of my answer to your question, Justice Souter, that it cannot be both final for 1257 purposes and pending--

Justice Souter: But why isn't your sister's answer to that adequate?

It is the state judgment that is final, but action on the petition is not yet final until it has gone through the period allowed for final review by this Court.

Mr. Kise: --I would, I would respectfully disagree with that, with that nondistinction, if you will, Your Honor, in the sense that the application--

Justice Souter: So you're distinguishing between a state judgment and an application upon which further, further proceedings can be had.

Why is that a nondistinction?

Mr. Kise: --Because I would, I would disagree with the notion that further proceedings could be had on that application.

The basis for this Court's certiorari of jurisdiction is that it is subject to no further review or correction in any state.

Justice Souter: Let's assume that the, the petition for cert is granted and this Court grants relief.

The relief as I understand it is going to consist of a remand to the state court saying you did something wrong on this application before, go back and do it over again and do it right.

It's the... it is the state application which is going to be the subject of it and that therefore, it is the state application that necessarily is the subject of the cert petition.

Mr. Kise: I would say, Your Honor, that the state application may be the subject matter of what you are looking at from a subject matter standpoint, but what the Court is ruling on is the petition for certiorari, which was a Federal court ruling on--

Justice Souter: It's a petition for certiorari to review action taken on a state petition, just as at the state level, whatever may be the, the nomenclature for filing an appeal from the state trial court to the state appellate court, is an application which relates entirely to the original application for relief that was filed in the state trial court.

It seems to me the two situations are exactly parallel.

Mr. Kise: --And I would respectfully disagree, Your Honor, because I don't see how it can be final for 1257 purposes and still pending for purposes of the statute.

Justice Ginsburg: But that... that--

Chief Justice Roberts: It's the application that is not subject to review.

We review the state court judgment, not the state application, correct?

Mr. Kise: In this case, Your Honor, the application is the state court.

I mean, the judgment is what is being reviewed, and it is a final judgment in the application.

The Florida Supreme Court in this case has no power at all once they have issued the mandate to go back and modify, to correct it six months later.

If the Florida Supreme Court decided, you know, we made a mistake in that application, they don't have the power sua sponte to correct it.

It is final.

It is over.

The state's province has been completed.

Justice Stevens: But they would correct it if we told them to.

Mr. Kise: In that circumstance, yes, Your Honor, certainly they would in a circumstance, in the very unusual circumstance where this Court were to accept certiorari and then subsequent to the acceptance of certiorari, then reverse the ruling.

Justice Stevens: And when it got back in the state supreme court, they would still be working on the application that had been pending until the end of the proceedings down there, and then suddenly came back to life after we sent it back.

Mr. Kise: Yes, Your Honor, but that is, again, the extraordinary circumstance.

And that I think points out the, one of the flaws in petitioner's argument, and that is that that's making the exception the rule, that clearly Congress did not intend to add what I believe Chief Justice Roberts alluded to earlier, an extra three months, an extra six months.

Justice Scalia: I think what you're saying, though, is when you have ambiguous language, a sensible rule is not a rule, it has to have a lot of exceptions to make sense.

Surely that's a sound principle, isn't it?

Mr. Kise: Yes, Your Honor.

And I don't think that this would be a lot of exceptions.

I think this would be, the only exception would be, to the rule that we are advocating would be in the unusual circumstance, the one in 5,000 cases, the one in 1,000 cases, the exceptional case where this Court actually grants certiorari, those cases are exceptional in and of themselves.

Justice Breyer: Those are the most likely where people are going to get mixed up.

I mean, I'm not following... I think I think this argument about the word is metaphysical, you know, and I can make wonderful arguments, and you have made wonderful arguments on both sides of this.

I just can't get a clear answer.

So if I were right about that and there is no clear answer from the language, then the thing, I'd like to go back to Justice Stevens' question, because it seems to me that that puts my greatest concern, my greatest concerns are practical.

If we take your position, we have words right next to each other, near each other in the same statutory provision, meaning different things.

And I've learned out of my own experience perhaps, judges and lawyers are not always geniuses and they get mixed up.

And they will get mixed up all the time, and when they get mixed up, people will lose rights that they have.

The second concern of Justice Stevens, which is what happens in the case, and those are the ones who intuitively are going to cause the problem.

Because on a rare occasion, the state or the prisoner has a very good Supreme Court case.

And that's going to be the case where he forgets to file in the Federal court because he thinks this thing isn't over, and lo and behold, the Court grants it.

And now what happens?

On your interpretation, I just see a mess, and on the other interpretation, it seems to work out fine.

So those, I would say are the two practical problems, and anything you would like to say about that, I'd like to listen to.

Mr. Kise: Thank you, Justice Breyer, and I would respectfully answer your question I think in three ways.

First, drawing a distinction between when the state petitions for certiorari and when the habeas petitioner petitions for certiorari.

Under both circumstances, equitable principles would apply, but they would apply in I think different ways.

But in either circumstance, the ability of the petitioner to subsequently seek habeas review would be protected.

And so what we are advocating is not making those exceptional cases the rule.

In a case where the state petitions for certiorari there isn't an ability, there is no way to even file a protective habeas because there is nothing to file.

You've won, the habeas petitioner has won in the court below.

There is no cause of action.

There isn't a basis upon which to file a Federal habeas claim, so even a protective one would be, it wouldn't be premature, it would be effectively nonexistent.

So from an equitable standpoint, the extraordinary circumstance which the courts have recognized, the circuits have recognized that the test for equitable circumstance is, the extraordinary circumstance would be this Court accepting certiorari.

And then the exercise of diligence on the part of the petitioner is if the petitioner did everything he or she could under that circumstance, because there would be no way for that petitioner to file for a Federal habeas review because there would be no basis for it.

Justice Scalia: Can I ask... it seems very strange to me.

I can understand protective filings when you've lost, but it seems to me a very strange protective filing.

When you've won in state court and the government has taken certiorari, can you file, file in Federal district court?

What do you say?

What are you complaining about?

Mr. Kise: Exactly my point, Your Honor.

You cannot.

Justice Scalia: No.

It's their point.

I don't see how it's your point.

How can you cover yourself?

I mean, if we come out your way, how... how--

Mr. Kise: There isn't a need to cover us up, Your Honor, because you've won in state court.

Justice Kennedy: Provided equitable--

Chief Justice Roberts: You're worried about winning in the Supreme Court.

Mr. Kise: In the one in 1,000 or one in 5,000 cases, equitable principles would then apply.

The distinction may not be clear between statutory tolling, what the statute actually provides for, and equitable tolling, equitable principles that have been applied by the court.

Justice Kennedy: --But you're asking us to say that the Congress has written a statute which doesn't take account that the state might sometimes file a petition for certiorari that would be granted.

And you say oh, that's so rare, that's so extraordinary.

It happens.

It's part of the system.

Justice Scalia: --Would you advise a client that way?

Would you advise a client that way?

Mr. Kise: Well--

Justice Scalia: You've won here and the state is taking certiorari to the Supreme Court.

Don't worry about making a protective filing in the district court because, you know, if by chance the Supreme Court reverses, equitable tolling will apply.

You know, you roll the dice with equity.

Mr. Kise: --I don't think there would be... I think it would be ill advised to, to direct a petitioner to file in Federal court under those circumstances because there would be nothing to file.

What would be the complaint?

Justice Scalia: I agree.

Mr. Kise: There would be absolutely nothing to file.

Justice Stevens: The irony of your position is that it has those harshest consequences in those rare cases where there was a denial of constitutional right.

Mr. Kise: Your Honor, I would respectfully disagree that it has its harshest consequences, because that's where the equitable tolling principles would in fact apply.

Justice Ginsburg: --Why do you need equitable tolling?

Why can't you use, why isn't it most sensible to use the model when... for the time clock on direct appeal, say there has been a conviction affirmed by the highest court of the state, when does the time, when does that judgment... it's a final judgment if you seek cert, right?

But the time clock, the one year doesn't begin to run until after the 90 days has elapsed; isn't that right?

Mr. Kise: Yes, Your Honor.

Justice Ginsburg: So why shouldn't it be the same way for collateral review as it is for direct review?

Direct review, everyone agrees that you get the state final judgment.

But then you have 90 days and nothing starts until that 90 days is up or, if cert is granted, until the cert process is done.

Why shouldn't it be just the same for collateral review?

Mr. Kise: I would say it's different, Your Honor, respectfully, for two reasons: One, because this Court has said that direct review is different in numerous cases.

And two, because the statute makes that distinction.

Congress in (d)(1)(A) utilized that very specific language that included the, the certiorari period and in (d)(2) did not use that language, and it is the absence of that language that indicates that tolling is only to apply while a petitioner is exhausting relief, state relief.

Justice Ginsburg: Well that means, that means that if a petitioner who has had his state application for collateral relief denied wants to petition this Court, but doesn't want to lose out on the possibility of seeking Federal habeas, that prisoner has to do two things at the same time: One, prepare a petition for cert; and the other is to prepare, prepare a complaint to file in a Federal district court.

That's a lot to put on a person, particularly the one who isn't represented.

Mr. Kise: Well, Your Honor, I would say that in many circumstances that would be the case, but not always the case.

It depends on how much time is left on the Federal statute of limitations, how much time is remaining, how long did it take to get through the state post-conviction process.

How timely was the filing in the state post conviction process.

And how much time is remaining, assuming for what was discussed--

Justice Ginsburg: Here there were 31 days, right?

Mr. Kise: --Then they would need to file... yes, Your Honor, and they would need to--

Justice Ginsburg: They'd have to file a Federal court complaint and a cert petition within the 31 days.

Mr. Kise: --Yes, Your Honor.

Yes, Your Honor, because the amount of time that would elapse before this Court were to rule on the cert petition would consume that 31 days.

And I don't think that's inconsistent with what Congress intended here because what Congress intended by this provision was to provide petitioner... well, what this Court said in Duncan, what this Court has recognized, is that the scheme that has been put together here by Congress is one which encourages petitioners first to file and exhaust their state remedies, recognizing and giving deference to the principles of comity, and then second to file, once they're done with their state process, once they've completed the state process and exhausted their state remedies, to file their Federal habeas, in the words of this Court in Duncan, "as soon as possible".

And the anomaly that would be created by petitioner's construction would be it would be the only time under all of AEDPA where a petitioner could file in Federal district court but isn't required to file.

And so I would submit to this Court that it cannot be both exhausted and pending at the same time.

It would not fit within the scheme that this Court has already determined the structure of (d)(2) is designed to accomplish.

The principle is that you are to, as a habeas petitioner, go quickly to state court, and we're going to give state courts the first opportunity at these Federal constitutional questions.

And yes, Justice Stevens, it may take some time.

It may take several years in Federal... in state court, before they accomplish that purpose.

But that's the state's issue because it's the state's judgment and the state is taking its time and it shouldn't be... and this is what Congress recognized I think in (d)(2)... that, that, that the petitioner should not be penalized for that time.

That's why it was tolled.

Justice Scalia: Is it, is it clear that he can go to district... I mean, I'm not familiar with how these things work.

Is it possible that when there is an appeal or certiorari pending here there can be proceeding in district court a habeas action on the same, on the same matter that we are considering on certiorari?

Mr. Kise: Yes, Your Honor, I believe there can.

I believe, there is, in fact--

Justice Scalia: District courts do that?

I mean, they would be considering the same, the same issues we are, I suppose?

Mr. Kise: --Well, I don't know that they would be considering the exact same issues, Your Honor.

And there are many things that can be done... petitioner--

Justice Scalia: You're sure that happens, that while cert is pending here there is a habeas proceeding ongoing in district court?

Mr. Kise: --Well, I certainly hope that in the 10 of the 11 circuits that have agreed with Florida's position here that that is happening, because if not then they are at risk, depending on how--

Justice Ginsburg: Wouldn't a district judge who knows that there's a cert petition pending just say: Well, I'll wait; this petition will be held pending the Supreme Court's disposition of cert.--

Mr. Kise: --I would respectfully say to Your Honor that it's not an automatic stay.

I mean, perhaps there would be a stay at some point.

But there are things that can be accomplished in Federal court before the undertaking of the review.

There is the Rule 4 screening process in habeas.

There is the initial review by the district court to see if the filing itself meets the procedural requirements.

There is the asking for an answer by the state.

There is discovery that can take place.

All of this can take place while the cert petition is pending before the Federal district undertakes any review of the merits.

Now, if there gets to be this juxtaposition where it looks like there is going to be a conflict between the Federal district's court's review of the substantive merits and that is going to conflict with this Court's certiorari review, well, then I think a stay would be implemented.

Justice Kennedy: Well, I'll accept your view as being the personal experience.

I'm rather surprised that district courts would go through all of these preliminary steps when the case is on cert and they may not have to.

Mr. Kise: Well, they may not have to--

Justice Kennedy: I'm not sure if I would tell the district courts that's what they ought to do, is a wise expenditure of resources.

I'll think about that.

Justice Scalia: Well, I mean, it sort of depends on how often cert is going to be granted, doesn't it?

If you're a district court and you have hundreds of these habeas petitions being filed, you can either hold of them whenever a cert petition is filed, one in one thousand or whatever the number is, because they might be granted.

I think you'd probably take your chances depending on the petition.

If it looks serious and there's a petition pending you don't have to proceed.

If it's frivolous perhaps you can proceed.

Mr. Kise: --I think that's exactly right, Your Honor.

I think that's really the point, and you've obviously articulated it better than I did in my previous answer.

But that's exactly right, that--

Justice Stevens: But isn't it true the real problem with the capital cases?

The state's interest in getting things moving is the strongest in the capital cases, I think.

Mr. Kise: --Absolutely, Your Honor.

Justice Stevens: In the non-capital cases there is an interest in promptness, but the longer the guy stays in jail is not going to prejudice the state.

But you do want to get your death cases terminated as soon as you can.

And what we're really talking about as I understand it is whether in most death cases we'll add on a period of six, eight, nine months to the total period.

And in most of those death cases, which is a limited number... I don't know, you have a couple hundred people I suppose in death row... in those cases it's going to be seven, eight, nine years anyway.

Mr. Kise: Well, it may be that long.

It may be a shorter period.

But I think what we need to look at is not what we would think would be the preferred time frame, but what Congress said was the preferred time frame.

And Congress is saying that it's one year, and the only time it's tolled is when the petitioner is doing what it should be doing to exhaust state remedies.

That's again what this Court said in Duncan about describing this entire structure.

Justice Breyer: That's if you're formally right on the metaphysical question.

But if you're not, now thinking you just gave a response to the Chief Justice that said, well, really the Federal district judge when he gets these things just has to look at them and then he figures out whether he is going to stay it or whether he's going to proceed on some issues or whether he is going to do something else.

And that's what you thought was fairly easy.

You have the experience there and I just wonder how easy it is.

I mean, why wouldn't it be easy?

Because I guess before doing anything the judge has to know what this thing is about.

And that's where it seems to me to take the time of a district judge.

They have many, many petitions.

Sometimes they are well organized, sometimes not.

He sends them to a magistrate possibly.

The magistrate has a lot to do, and the time consumed is the time finding out what is this case about.

Is that fair characterization or not?

How easy is it?

Mr. Kise: I think it's partly fair, Your Honor.

What I would say is the time... certain time is consumed just determining whether or not under the Rule 4 screening process, whether or not the petition meets the formal requirements, whether they've articulated the claim in the correct way and whether it's worthy of the state response, if there's discovery that needs to be had.

I mean, all of these things can be taking place and in the one in one thousand or perhaps more than that... and I don't pretend to have the exact number or the statistics... but in the very, very usual circumstance where cert is actually granted, I think then a stay could be put in place.

And I don't think it's fair to say, respectfully, that Congress intended to forestall this entire process while this Court undertakes certiorari review.

Justice Ginsburg: --Mr. Kise, there are two applications.

Your answer to the petitioner is you have to file in the Federal court within that 31 days.

If a prisoner says, I can't manage a cert petition and a Federal habeas corpus, it's hard enough for me to get any assistance, so I'll have to pick one or the other, isn't the, the reading of an ambiguous statute that you're proposing going to be an incentive or a disincentive to filing both, which the prisoner has a right to do?

He is going to have to pick one or the other if he is in this timeline.

Mr. Kise: Well, respectfully, Your Honor... and I know that that is the petitioner's argument and I see that you have given me that question, but I don't know that it is that much of a choice.

I mean, I think that they can file, they can file both in those circumstances and, and depending on the particular circumstances... and this is back to the equitable tolling principles... for statutory tolling purposes, I think the answer is they must file both or they forfeit the right to one or the other.

If they choose not to file for cert, then they voluntarily if they pass the 90 days forfeited that right; and if they don't file within the statutory period then they have under AEDPA missed the statute of limitations deadline.

But I would, I submit to you that it is possible to do both, and in circumstances where there is some impediment to them doing just that, if they exercise diligence, if they are doing everything they possibly can and it is not possible to file both at the same time, well, then I think under the facts of the proper scenario that equitable principles might apply.

But again, to say that Congress built into the system this automatic time period that's going to be tacked on to a very short one-year statute of limitations, a statute of limitations that is designed to really move things through the system rapidly, is, respectfully, I don't think the correct interpretation of the language, and I don't think it is consistent with what this Court said in Duncan or, with respect to Justice Breyer, what this Court said in Carey.

Justice Scalia: Let me be clear on your answer to Justice Stevens' earlier question.

Where there is a reversal of the state judgment by, by this Court, and the case is remanded to the state, you don't argue that what occurs then is equitable tolling?

But you say that the case is again pending once it goes back to the state, is that right?

Mr. Kise: I think once it's back in the state system then it would have to be considered pending, because the statute contemplates that while it's part of the state process it would be pending.

If the Court has no further questions, thank you.

Rebuttal of Mary Catherine Bonner

Chief Justice Roberts: Thank you, Mr. Kise.

Ms. Bonner, you have four minutes remaining.

Mr. Bonner: Thank you, sir.

I've heard the state over these many years say that a simple exception will help the defendant and don't worry, we will not proceed, we'll ask for... don't worry, we won't object.

Kind of what we're getting here is, we won't be objecting to a stay if there is a stay requested.

However, they objected to the stay here that the United States district court entered.

In an exercise of honesty, he said: I'm going to wait for the Supreme Court to decide what happens in Artuz, whether they accept cert or not.

And they vigorously.

Objected and utilized a good little built of time litigating it on an interlocutory type appeal.

One of the practical problems is if this case is in both courts, this one and the United States district court, where is the record?

Is... It's just the most practical of things.

And also, where is the lawyer, who is the lawyer?

Chief Justice Roberts: Records don't have to... typically are not filed with the petition for cert. So the record would be back in the lower court.

Mr. Bonner: So that solves that.

The--

Chief Justice Roberts: Just to be clear, it is your position that to get... you think everyone's entitled to the additional 90 days whether they file or not.

Mr. Bonner: --Yes, I do.

Chief Justice Roberts: To get the additional time for an opposition that would be considered here, you have to file the petition for cert. In other words, if you don't file after the 90th day it's no longer pending.

Mr. Bonner: Absolutely.

Chief Justice Roberts: Okay.

So then why wouldn't the result of your position be that every person who is denied state post-conviction relief is going to file a cert position to get the additional time?

Mr. Bonner: Why is my position that they would not?

Chief Justice Roberts: Wouldn't that lead to that result?

If Congress was concerned that people were stringing out the time before they seek habeas, one way to string it out under your reading, but not under the state's reading, would be to file a petition for cert.--

Mr. Bonner: Well, Congress couldn't have been too concerned about that 90 days because it certainly permitted the trigger to have the 90 days included within it, and this Court has allowed the 90 days--

Chief Justice Roberts: --I'm sorry.

What's the trigger?

Mr. Bonner: --A, 2242(b)(A).

Chief Justice Roberts: Yes.

When they wanted to include the 90 days, they said the expiration of the time for seeking review.

They did not say that in (d)(2).

Mr. Bonner: They did not say that, but they said while the application is pending.

And the state did not address for this Court what is pending here if it's not that application from state court.

Justice Alito: Does your argument--

Justice Scalia: I guess you could also say that except in capital cases the defendant will not have an incentive to delay.

He wants to get out, right?

Mr. Bonner: Of course, of course.

And you know, frankly, I think all of the defendants on death row--

Chief Justice Roberts: I mean, if the defendant had no incentive to delay, why did Congress think it necessary to impose the statue of limitations?

They did that because they thought people were stringing out their... and they were applying for Federal habeas after too long of a delay.

Mr. Bonner: --Well strangely enough in this case I was looking at statistics as to the average length of time that a case was pending before, between conviction and the filing of the 2254, and Mr. Lawrence's petition was filed within days of what the average was before the AEDPA.

That comes up in a statistical analysis I believe by the Department of Justice cited to by the state.

Justice Stevens: Doesn't the title of a statute indicate the category of cases that Congress was primarily interested in?

Mr. Bonner: Oh yes.

Justice Stevens: The death penalty.

Mr. Bonner: Oh yes.

When they joined together in anti-terrorism, effective... the... just the word effective was plenty to convey to us what they actually mean.

The other big problem that's not been addressed is these people in a practical sense do not have the same lawyer for both proceedings.

Many people who were more than willing to practice in state court are not willing to practice in Federal court.

It's a more formalized, rigorous endeavor.

And in this case what happened was Mr. Lawrence had a lawyer who practiced in the state and obviously must have prepared for him that initial place holder, if you want to call it, 2254, because it's typewritten.

They cite to a Westlaw site.

I don't think there is any way that anyone can contemplate that that would be Mr. Lawrence's doing in his own right.

Also, whether it's 90 days or six months as Your Honor has said, it's always in the control of this Court.

Once the 90... this is not a frolic of unnumbered years.

When someone files a petition he either files it by the time 90 days is over or he is out of court, or he files it and this Court is quickly reviewing it after some input from the other side.

Chief Justice Roberts: Thank you, Miss Bonner.

Mr. Bonner: Thank you.

Chief Justice Roberts: The case is submitted.