WALL v. KHOLI

OPINION OF THE COURT
WALL V. KHOLI
562 U. S. ____ (2011)

SUPREME COURT OF THE UNITED STATES
NO. 09-868

ASHBEL T. WALL, II, DIRECTOR, RHODE ISLAND DEPARTMENT OF CORRECTIONS, PETI- TIONER v. KHALIL KHOLI

on writ of certiorari to the united states court of appeals for the first circuit

[March 7, 2011]

   Justice Alito delivered the opinion of the Court.

   Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), “a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim” tolls the 1-year limitation period for filing a federal habeas petition. 28 U. S. C. §2244(d)(2). The question in this case is whether a motion to reduce sentence under Rhode Island law tolls the limitation period, thereby rendering respondent Khalil Kholi’s federal habeas petition timely. We hold that the phrase “collateral review” in §2244(d)(2) means judicial review of a judgment in a proceeding that is not part of direct review. Because the parties agree that a motion to reduce sentence under Rhode Island law is not part of the direct review process, we hold that respondent’s motion tolled the AEDPA limitation period and that his federal habeas petition was therefore timely.

I

A

   In 1993, respondent was convicted in Rhode Island Superior Court on 10 counts of first-degree sexual assault, and he was sentenced to consecutive terms of life im-prisonment. Respondent raised various challenges to his conviction on direct appeal, but the Supreme Court of Rhode Island affirmed his conviction. See State v. Kholi, 672 A. 2d 429, 431 (1996). The parties agree that respondent’s conviction became final on direct review when his time expired for filing a petition for a writ of certiorari in this Court. Brief for Petitioner 7, n. 4; Brief for Respondent 3, n. 1; 582 F. 3d 147, 150 (CA1 2009); see generally Jimenez v. Quarterman, 555 U. S. 113, ___ (2009) (slip op., at 6). That date was May 29, 1996. See this Court’s Rules 13.1, 13.3, 30.1.

   In addition to taking a direct appeal, respondent filed two state motions that are relevant to our decision. The first, filed on May 16, 1996, was a motion to reduce sentence under Rule 35 of the Rhode Island Superior Court Rules of Criminal Procedure.[Footnote 1] App. 8. In that motion, respondent asked the trial court to “reconsider its prior determination” and “order that his life sentences run concurrently.” State v. Kholi, 706 A. 2d 1326 (R. I. 1998) (order). Concluding that “the sentence imposed was appropriate,” the hearing justice denied the Rule 35 motion. Ibid. On January 16, 1998, the State Supreme Court affirmed and observed that the facts clearly justified the sentence. Id., at 1326–1327.

   On May 23, 1997, while the Rule 35 motion was pending, respondent also filed an application for state postconviction relief, see R. I. Gen. Laws 10–9.1–1 et seq. (Lexis 1997) (titled “Post Conviction Remedy”), which challenged his conviction. The trial court denied this motion as well, and the State Supreme Court affirmed that decision on December 14, 2006. See Kholi v. Wall, 911 A. 2d 262, 263–264 (R. I. 2006).

B

   Respondent filed a federal habeas petition in the District of Rhode Island on September 5, 2007. App. 3. By that time, his conviction had been final for over 11 years. AEDPA generally requires a federal habeas petition to be filed within one year of the date on which the judgment became final by the conclusion of direct review. 28 U. S. C. §2244(d)(1)(A). But the 1-year limitation period is tolled during the pendency of “a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim.” §2244(d)(2).

   There is no dispute that respondent’s application for postconviction relief tolled the limitation period for over nine years—from May 23, 1997, through December 14, 2006. 582 F. 3d, at 151. Even after subtracting that stretch of time from the 11-year period, however, the period between the conclusion of direct review and the filing of the federal habeas petition still exceeds one year. Thus, in order for respondent’s petition to be timely, the Rule 35 motion to reduce sentence must also trigger the tolling provision.

   Respondent’s federal habeas petition was referred to a Magistrate Judge for a report and recommendation, and the Magistrate Judge concluded that the Rule 35 motion was not a “ ‘properly filed application for post-conviction or other collateral review’ ” under §2244(d)(2) because it was “a ‘plea of leniency,’ and not a motion challenging the legal sufficiency of his sentence.” No. CA 07–346S, 2008 WL 60194, *4 (R. I., Jan. 3, 2008). The District Court adopted the Magistrate Judge’s report and recommendation and therefore dismissed the federal habeas petition as untimely. See id., at *1. On appeal, the First Circuit reversed. 582 F. 3d 147.

   The Courts of Appeals are divided over the question whether a motion to reduce sentence tolls the period of limitation under §2244(d)(2).[Footnote 2] We granted certiorari to answer this question with respect to a motion to reduce sentence under Rhode Island law. 560 U. S. ___ (2010).

II

A

   AEDPA establishes a 1-year period of limitation for a state prisoner to file a federal application for a writ of habeas corpus. §2244(d)(1). This period runs “from the latest of” four specified dates, including “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” §2244(d)(1)(A); see also Jimenez, supra, at ___ (slip op., at 6) (explaining when “the conclusion of direct review occurs”). The limitation period is tolled, however, during the pendency of “a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim.” §2244(d)(2). The question in this case is whether a motion for reduction of sentence under Rhode Island’s Rule 35 is an “application for State post-conviction or other collateral review.”

   The parties agree that the answer to this question turns on the meaning of the phrase “collateral review,” see Brief for Petitioner 19; Brief for Respondent 12–13, but they disagree about the definition of that term. Rhode Island argues that “collateral review” includes only “legal” challenges to a conviction or sentence and thus excludes motions seeking a discretionary sentence reduction. Respondent, on the other hand, maintains that “collateral review” is “review other than review of a judgment in the direct appeal process” and thus includes motions to reduce sentence. Brief for Respondent 17. We agree with respondent’s understanding of “collateral review.”

B

   “Collateral review” is not defined in AEDPA, and we have never provided a comprehensive definition of that term. See Duncan v. Walker, 533 U. S. 167, 175–178 (2001). We therefore begin by considering the ordinary understanding of the phrase “collateral review.” See Williams v. Taylor, 529 U. S. 420, 431 (2000) (“We give the words of a statute their ordinary, contemporary, common meaning, absent an indication Congress intended them to bear some different import” (internal quotation marks omitted)); see also Carey v. Saffold, 536 U. S. 214, 219 (2002) (considering the ordinary meaning of the word “pending” in §2244(d)(2)).

   The term “collateral,” in its “customary and preferred sense,” Williams, supra, at 431, means “[l]ying aside from the main subject, line of action, issue, purpose, etc.; … subordinate, indirect,” 3 Oxford English Dictionary 473 (2d ed. 1989) (hereinafter OED); see also Webster’s Third New International Dictionary 444 (1993) (hereinafter Webster’s) (“accompanying as … secondary,” “indirect,” or “ancillary”). By definition, something that is “collateral” is “indirect,” not direct. 3 OED 473. This suggests that “collateral” review is review that is “[l]ying aside from the main” review, i.e., that is not part of direct review. See ibid.

   The definition of the related phrase “collateral attack” points in the same direction. A “collateral attack” is “[a]n attack on a judgment in a proceeding other than a direct appeal.” Black’s Law Dictionary 298 (9th ed. 2009) (emphasis added); cf. Wash. Rev. Code §10.73.090(2) (2008) (defining “collateral attack” as “any form of postconviction relief other than a direct appeal”). This usage buttresses the conclusion that “collateral review” means a form of review that is not part of the direct appeal process.

C

   Our prior usage of the term “collateral” also supports this understanding. We have previously described a variety of proceedings as “collateral,” and all of these proceedings share the characteristic that we have identified, i.e., they stand apart from the process of direct review.

   For example, our cases make it clear that habeas corpus is a form of collateral review. We have used the terms habeas corpus and “collateral review” interchangeably, see, e.g., Murray v. Carrier, 477 U. S. 478, 482–483 (1986), and it is well accepted that state petitions for habeas corpus toll the limitation period, e.g., Rhines v. Weber, 544 U. S. 269, 272 (2005) (“[T]he 1-year statute of limitations … was tolled while Rhines’ state habeas corpus petition was pending”).

   We have also described coram nobis as a means of “collateral attack,” see, e.g., United States v. Morgan, 346 U. S. 502, 510–511 (1954) (internal quotation marks omitted), and we have used the term “collateral” to describe proceedings under 28 U. S. C. §2255 and a prior version of Rule 35 of the Federal Rules of Criminal Procedure. In United States v. Robinson, 361 U. S. 220 (1960), we distinguished between the process of direct appeal and “a number of collateral remedies,” including Federal Rule 35 motions, §2255 motions, and coram nobis. Id., at 230, n. 14. Similarly, in Bartone v. United States, 375 U. S. 52 (1963) (per curiam), we drew a distinction between a “[d]irect attack” on a criminal judgment and “collateral proceedings,” such as Rule 35, habeas corpus, and §2255 proceedings. Id., at 53–54.

   All of the proceedings identified in these prior opinions as “collateral” are separate from the direct review process, and thus our prior usage of the term “collateral” buttresses the conclusion that “collateral review” means a form of review that is not direct.

D

   Of course, to trigger the tolling provision, a “collateral” proceeding must also involve a form of “review,” but the meaning of that term seems clear. “Review” is best understood as an “act of inspecting or examining” or a “judicial reexamination.” Webster’s 1944; see also Black’s, supra, at 1434 (“[c]onsideration, inspection, or reexamination of a subject or thing”); 13 OED 831 (“[t]o submit (a decree, act, etc.) to examination or revision”). We thus agree with the First Circuit that “ ‘review’ commonly denotes ‘a looking over or examination with a view to amendment or improvement.’ ” 582 F. 3d, at 153 (quoting Webster’s 1944 (2002)). Viewed as a whole, then, “collateral review” of a judgment or claim means a judicial reexamination of a judgment or claim in a proceeding outside of the direct review process.

III

   We now apply this definition of “collateral review” to a Rule 35 motion to reduce sentence under Rhode Island law.

A

   Rule 35 of the Rhode Island Rules of Criminal Procedure is much like the version of Federal Rule of Criminal Procedure 35 that was in force prior to the enactment of the federal Sentencing Reform Act of 1984 and the promulgation of the Federal Sentencing Guidelines. See State v. Byrnes, 456 A. 2d 742, 744 (R. I. 1983) (per curiam); Reporter’s Notes following R. I. Super. Ct. Rule Crim. Proc. 35, R. I. Court Rules Ann., p. 620 (Lexis 2010). Under the Rhode Island Rules, a Rule 35 motion permits a court to provide relief from a sentence in three ways: A court “may” “correct an illegal sentence,” “correct a sentence imposed in an illegal manner,” and “reduce any sentence.” R. I. Super. Ct. Rule Crim. Proc. 35(a); see n. 1, supra. In this case, respondent filed a motion to reduce his sentence, which permits a trial justice to decide “ ‘ “on reflection or on the basis of changed circumstances that the sentence originally imposed was, for any reason, unduly severe.” ’ ” State v. Ruffner, 5 A. 3d 864, 867 (R. I. 2010) (quoting State v. Mendoza, 958 A. 2d 1159, 1161 (R. I. 2008)); see also Reporter’s Notes following R. I. Super. Ct. Rule Crim. Proc. 35, R. I. Court Rules Ann., at 620–621. Rhode Island courts have, at times, referred to such a motion as a “ ‘plea for leniency.’ ” Ruffner, supra, at 867 (quoting Mendoza, supra, at 1161).

   A Rule 35 motion is made in the Superior Court, and it is generally heard by the same trial justice who sentenced the defendant. Byrnes, supra, at 745. The Rhode Island Supreme Court has explained that a motion to reduce sentence is “ ‘addressed to the sound discretion of the trial justice’ ” and that appellate review of the trial justice’s decision is limited. Ruffner, supra, at 867 (quoting Mendoza, supra, at 1161). An appellate court may nevertheless disturb the trial justice’s decision “when the trial justice has imposed a sentence that is without justification and is grossly disparate from other sentences generally imposed for similar offenses.” Ruffner, supra, at 867 (quoting State v. Coleman, 984 A. 2d 650, 654 (R. I. 2009); internal quotation marks omitted); see also Ruffner, supra, at 867 (asking whether trial justice “abuse[d] his discretion”).

B

   With these principles in mind, we consider whether Rhode Island’s Rule 35 motion to reduce sentence is an application for “collateral review.”

   The first—and the critical—question is whether a Rhode Island Rule 35 sentence reduction proceeding is “collateral.” Respondent and Rhode Island agree that such a motion is not part of the direct review process. Moreover, we have previously referred to a motion to reduce sentence under old Rule 35 of the Federal Rules of Criminal Procedure as invoking a “collateral” remedy, see Robinson, supra, at 230, n. 14, and Rhode Island’s Rule 35 motion to reduce sentence is “substantially similar” to former Federal Rule 35, Byrnes, supra, at 744. Lower courts have also referred to Federal Rule 35 sentence reduction motions as “collateral.” See, e.g., Fernandez v. United States, 941 F. 2d 1488, 1492 (CA11 1991) (“Fernandez initiated a collateral attack on his sentence with a Rule 35(b) motion to reduce his sentence” under the old Federal Rule). We thus have little difficulty concluding that a Rhode Island sentence reduction proceeding is “collateral.”[Footnote 3]

   Not only is a motion to reduce sentence under Rhode Island law “collateral,” but it also undoubtedly calls for “review” of the sentence. The decision to reduce a sentence, while largely within the discretion of the trial justice, involves judicial reexamination of the sentence to determine whether a more lenient sentence is proper.[Footnote 4] When ruling on such a motion, a trial justice is guided by several factors, including “(1) the severity of the crime, (2) the defendant’s personal, educational, and employment background, (3) the potential for rehabilitation, (4) the element of societal deterrence, and (5) the appropriateness of the punishment.” State v. Mollicone, 746 A. 2d 135, 138 (R. I. 2000) (per curiam) (internal quotation marks omitted); see also Ruffner, supra, at 867; Coleman, supra, at 655. On appeal from a trial justice’s decision on a motion to reduce sentence, the Supreme Court of Rhode Island evaluates the trial justice’s justifications in light of the relevant sentencing factors to determine whether a sentence is “without justification” and “grossly disparate from other sentences.” Ruffner, supra, at 867 (internal quotation marks omitted).[Footnote 5] This process surely qualifies as “review” of a sentence within the meaning of §2244(d)(2).

   We thus hold that a motion to reduce sentence under Rhode Island law is an application for “collateral review” that triggers AEDPA’s tolling provision.

IV

   In resisting this interpretation, Rhode Island advances several arguments that we find unpersuasive.

   The first of these arguments begins by observing that, whenever our opinions have used the precise phrase “collateral review,” the proceeding in question was one challenging the “lawfulness” of a prior judgment, Brief for Petitioner 21–22, such as a §2254 or §2255 action, see id., at 25. Rhode Island argues that Congress, in enacting AEDPA, must be presumed to have been aware of this usage and must have intended the phrase to carry this narrow meaning.

   This argument reads far too much into these prior references to “collateral review.” While our opinions have used the phrase “collateral review” to refer to proceedings that challenge the lawfulness of a prior judgment, we have never suggested that the phrase may properly be used to describe only proceedings of this type. In addition, Rhode Island overlooks opinions describing a motion to reduce sentence as “collateral.” E.g., Robinson, 361 U. S., at 230, n. 14; Fernandez, supra, at 1492; see also 1 D. Wilkes, State Postconviction Remedies and Relief Handbook §§1:2, 1:7, pp. 2, 15 (2010) (characterizing a motion to reduce sentence as a “collateral” or “postconviction” remedy).

   In a related argument, Rhode Island notes that several other AEDPA provisions use the term “collateral review” to refer to proceedings that involve a challenge to the lawfulness of a state-court judgment, see 28 U. S. C. §§2244(b)(2)(A), (d)(1)(C), 2254(e)(2)(A)(i),[Footnote 6] and Rhode Island reasons that the phrase “collateral review” in §2244(d)(2) should be limited to proceedings of this nature. This argument has the same flaw as the argument just discussed. Just because the phrase “collateral review” encompasses proceedings that challenge the lawfulness of a prior judgment, it does not follow that other proceedings may not also be described as involving “collateral review.”

   Finally, Rhode Island contends that the purpose of the tolling provision is to allow a state prisoner to exhaust state remedies and that this purpose is not served when a prisoner’s state application merely seeks sentencing leniency, a matter that cannot be raised in a federal habeas petition. This argument is based on an excessively narrow understanding of §2244(d)(2)’s role.

   It is certainly true that a purpose—and perhaps the chief purpose—of tolling under §2244(d)(2) is to permit the exhaustion of state remedies, see Duncan, 533 U. S., at 178–179, but that is not §2244(d)(2)’s only role. The tolling provision “provides a powerful incentive for litigants to exhaust all available state remedies before proceeding in the lower federal courts.” Id., at 180 (emphasis added). Tolling the limitation period for all “collateral review” motions provides both litigants and States with an opportunity to resolve objections at the state level, potentially obviating the need for a litigant to resort to federal court. If, for example, a litigant obtains relief on state-law grounds, there may be no need for federal habeas. The same dynamic may be present to a degree with respect to motions that do not challenge the lawfulness of a judgment. If a defendant receives relief in state court, the need for federal habeas review may be narrowed or even obviated, and this furthers principles of “comity, finality, and federalism.” Williams, 529 U. S., at 436.

   Rhode Island’s interpretation of §2244(d)(2) would also greatly complicate the work of federal habeas courts. Rhode Island would require those courts to separate motions for a reduced sentence into two categories: those that challenge a sentence on legal grounds and those that merely ask for leniency. But this taxonomy is problematic. Even if a jurisdiction allows sentencing judges to exercise a high degree of discretion in selecting a sentence from within a prescribed range, it does not necessarily follow that the judge’s choice is insulated from challenge on legal grounds. “[D]iscretionary choices are not left to a court’s ‘inclination, but to its judgment; and its judgment is to be guided by sound legal principles.’ ” Albemarle Paper Co. v. Moody, 422 U. S. 405, 416 (1975) (quoting United States v. Burr, 25 F. Cas. 30, 35 (No. 14,692d) (CC Va. 1807) (Marshall, C. J.)). If the law of a jurisdiction provides criteria to guide a trial judge’s exercise of sentencing discretion, a motion to reduce sentence may argue that a sentence is inconsistent with those criteria. In that sense, the motion argues that the sentence is contrary to sentencing law. See, e.g., Ruffner, 5 A. 3d, at 867 (“A trial justice considers a number of factors when determining a fair sentence[,] including the defendant’s potential for rehabilitation. The defendant asserts that the trial justice did not consider defendant’s participation in rehabilitative programs” (citations omitted)). We do not think that §2244(d)(2) was meant to require federal habeas courts to draw the sort of difficult distinction that Rhode Island’s interpretation would demand.

   We also reject the argument that the meaning of the phrase “collateral review” should turn on whether the motion or application that triggers that review is captioned as a part of the criminal case or as a separate proceeding. See Walkowiak v. Haines, 272 F. 3d 234, 237 (CA4 2001). This interpretation of §2244(d)(2) would produce confusion and inconsistency.

   For one thing, some “collateral” proceedings are often regarded as part of the criminal case. We have said, for example, that a writ of coram nobis “is a step in the criminal case and not … a separate case and record, the beginning of a separate civil proceeding.” Morgan, 346 U. S., at 505, n. 4; see also United States v. Denedo, 556 U. S. ___, ___ (2009) (slip op., at 8) (“[A]n application for the writ is properly viewed as a belated extension of the original proceeding during which the error allegedly transpired”). But we have nonetheless suggested that coram nobis is a means of “collateral attack.” Morgan, supra, at 510–511 (internal quotation marks omitted); see also Robinson, 361 U. S., at 230, n. 14. Similarly, a motion under 28 U. S. C. §2255 (2006 ed., Supp. III) is entered on the docket of the original criminal case and is typically referred to the judge who originally presided over the challenged proceedings, see §2255 Rules 3(b), 4(a), but there is no dispute that §2255 proceedings are “collateral,” see, e.g., Massaro v. United States, 538 U. S. 500, 504 (2003) (describing §2255 proceedings as “collateral”); Daniels v. United States, 532 U. S. 374, 379 (2001) (same).[Footnote 7]

   Moreover, the methods of filing for postconviction or collateral review vary among the States. In the District of Columbia and fourteen States, the principal postconviction remedy is part of the original case; in other States, it is not. 1 Wilkes, State Postconviction Remedies and Relief Handbook §1:3, at 6–7. Given the States’ “different forms of collateral review,” Duncan, 533 U. S., at 177, the ap-plication of AEDPA’s tolling provision should not turn on such formalities. See ibid. (“Congress may have refrained from exclusive reliance on the term ‘post-conviction’ so as to leave no doubt that the tolling provision applies to all types of state collateral review available after a conviction”).

   We thus define “collateral review” according to its ordinary meaning: It refers to judicial review that occurs in a proceeding outside of the direct review process.

*  *  *

   For these reasons, the judgment of the Court of Appeals is affirmed.

It is so ordered.

Footnote 1

 This Rule provides in relevant part:

“The court may correct an illegal sentence at any time. The court may correct a sentence imposed in an illegal manner and it may reduce any sentence when a motion is filed within one hundred and twenty (120) days after the sentence is imposed, or within one hundred and twenty (120) days after receipt by the court of a mandate of the Supreme Court of Rhode Island issued upon affirmance of the judgment or dismissal of the appeal, or within one hundred and twenty (120) days after receipt by the court of a mandate or order of the Supreme Court of the United States issued upon affirmance of the judgment, dismissal of the appeal, or denial of a writ of certiorari. The court shall act on the motion within a reasonable time, provided that any delay by the court in ruling on the motion shall not prejudice the movant. The court may reduce a sentence, the execution of which has been suspended, upon revocation of probation.” R. I. Super. Ct. Rule Crim. Proc. 35(a) (2010) (emphasis added).

Footnote 2

 Compare Alexander v. Secretary, Dept. of Corrections, 523 F. 3d 1291, 1297 (CA11 2008) (motion to reduce sentence does not toll limitation period); Hartmann v. Carroll, 492 F. 3d 478, 484 (CA3 2007) (same); Walkowiak v. Haines, 272 F. 3d 234, 239 (CA4 2001) (same), with 582 F. 3d, at 156 (case below) (motion to reduce sentence tolls); Robinson v. Golder, 443 F. 3d 718, 720–721 (CA10 2006) (per curiam) (same).

Footnote 3

 We can imagine an argument that a Rhode Island Rule 35 proceeding is in fact part of direct review under §2244(d)(1) because, according to the parties, defendants in Rhode Island cannot raise any challenge to their sentences on direct appeal; instead, they must bring a Rule 35 motion. See, e.g., State v. Day, 925 A. 2d 962, 985 (R. I. 2007) (“It is well settled in this jurisdiction that a challenge to a criminal sentence must begin with the filing of a [Rule 35] motion … . [W]e will not consider the validity or legality of a sentence on direct appeal unless extraordinary circumstances exist” (internal quotation marks omitted)); State v. McManus, 990 A. 2d 1229, 1238 (R. I. 2010) (refusing to consider Eighth Amendment challenge on direct review because “[t]o challenge a criminal sentence, the defendant must first file a motion to reduce in accordance with Rule 35”); see also Jimenez v. Quarterman, 555 U. S. 113, ___ (2009) (slip op., at 6–7). That issue has not been briefed or argued by the parties, however, and we express no opinion as to the merit of such an argument. Even if we were to assume that a Rhode Island Rule 35 motion is part of direct review, our disposition of this case would not change: Respondent’s habeas petition still would be timely, because the limitation period would not have begun to run until after the Rule 35 proceedings concluded.

Footnote 4

 A motion to reduce sentence is unlike a motion for postconviction discovery or a motion for appointment of counsel, which generally are not direct requests for judicial review of a judgment and do not provide a state court with authority to order relief from a judgment.

Footnote 5

 E.g., State v. Coleman, 984 A. 2d 650, 657 (R. I. 2009) (“Given these factors, and the trial justice’s exhaustive explanation of her reasoning in sentencing Mr. Coleman, we hold it was not an abuse of her discretion to order Mr. Coleman to serve consecutive sentences”); State v. Ferrara, 818 A. 2d 642, 645 (R. I. 2003) (per curiam) (“[M]itigating circumstances clearly are not present in this case”); State v. Rossi, 771 A. 2d 906, 908 (R. I. 2001) (order) (“Based upon [the court’s] review of the record,” the sentence “was not excessive and was justified under the circumstances,” namely, “the abhorrent conduct of [the] defendant” and “the permissible penalty range” under the statute); State v. Mollicone, 746 A. 2d 135, 138 (R. I. 2000) (per curiam) (“[T]he trial justice was aware of these factors and applied them correctly”).

Footnote 6

 All of these provisions refer to a new rule of constitutional law made retroactively applicable by this Court to “cases on collateral review.”

Footnote 7

 In other contexts not relevant here, there has been some confusion over whether §2255 proceedings are civil or criminal in nature. See, e.g., Postconviction Remedies §3:5, p. 251 (2010) (“[T]here is a dispute over whether the [§2255] motion initiates an independent civil action or, instead, is merely a further step in the criminal prosecution”); 3 C. Wright & S. Welling, Federal Practice and Procedure §622 (4th ed. 2011). We express no opinion on this question.

562 U. S. ____ (2011)
562 U. S. ____ (2011)
562 U. S. ____ (2011)
SUPREME COURT OF THE UNITED STATES
NO. 09-868

ASHBEL T. WALL, II, DIRECTOR, RHODE ISLAND DEPARTMENT OF CORRECTIONS, PETI- TIONER v. KHALIL KHOLI

on writ of certiorari to the united states court of appeals for the first circuit

[March 7, 2011]

   Justice Scalia, concurring in part.

   The Court holds that the term “collateral review” in 28 U. S. C. §2242(d)(2) means review that is not direct, ante, at 5, and that a motion under Rhode Island’s Rule 35 seeks collateral review, ante, at 9. Because I agree with those conclusions, I cannot join footnote 3 of the Court’s opinion, ante, at 9, n. 3, which declines to decide whether a Rule 35 motion seeks direct review.

Print this transcript Transcript: 

ORAL ARGUMENT OF AARON L. WEISMAN ON BEHALF OF THE PETITIONER

Chief Justice John G. Roberts: We will hear argument first this morning in Case 09-868, Wall v. Kholi.

Mr. Weisman.

Mr. Weisman: Thank you, Mr. Chief Justice, and may it please the Court:

The issue before the Court today is whether a State court sentence reduction motion, which is a pure plea for leniency, qualifies as, quote,

"an application for post-conviction or other collateral review. "

within the meaning of 28 U.S.C. section 2244(d)(2).

The State respectfully argue that there are at least three reasons why such a term as "collateral review" refers only to a legal challenge, refer to those recognized post-direct appeal applications in which constitutional, jurisdictional, and other such fundamental errors may be raised.

First, as this Court has said, it is presumed -- Congress is presumed to have known the language that this Court used in its decisions, and the term 2255 applications as those type of independent civil inquiries testing the validity of a conviction and/or sentence.

Justice Ruth Bader Ginsburg: But Mr. Weisman, the phrase is "post-conviction or other" -- "or other collateral review".

And certainly the Rule 25 -- 35 motion is post-conviction.

So it's post-conviction.

It's not direct review.

Why isn't that responsive?

Mr. Weisman: Well, I think both parties are in agreement, Your Honor, that the post-conviction review is a parcel of the other collateral review.

That's not--

Justice Ruth Bader Ginsburg: "Or" usually means it's something in addition.

Mr. Weisman: --Yes, but it's -- but with respect, Your Honor, it is "or other collateral review", and the "or other" -- and I think both parties are in agreement as to this -- "or other" embraces that State post-conviction review must also be, quote/unquote, "collateral review".

Also, I think importantly, it would be anomalous in a tolling provision, in which we are talking about a direct appeal already having been concluded, to embrace things that don't -- that don't -- that come prior to the direct appeal.

This is a tolling -- obviously, 2244(d)(1) speaks about the finality of a State court judgment of conviction.

At that point, obviously--

Justice Ruth Bader Ginsburg: Can you go back to the -- this is -- you said prior to.

I thought the Rule 35 motion is made after the conviction.

Mr. Weisman: --Well, it can be made -- it can be made prior to when the conviction becomes final.

For example, it can be made within 120 days of the imposition of sentence.

Or it can be made within 120 days after the affirmance of the conviction on direct appeal of the Rhode Island Supreme Court.

So it can be made prior to when the conviction becomes, quote/unquote, "final".

Justice Elena Kagan: But isn't that true regardless of whether the Rule 35 motion seeks legal relief or discretionary relief alone, that both can be made prior to the finality of the judgment?

Mr. Weisman: That is true, Your Honor.

Justice Elena Kagan: And -- and if I understand your argument, your argument is that Rule 35 motions that seek legal review do fall within the 2244(d)(2) language.

It's just that Rule 35 motions that seek discretionary relief do not.

Mr. Weisman: Well, I'm not sure we conceded that point, Your Honor.

I think clearly we are all in agreement that post-conviction vehicles and habeas vehicles, which obviously all traditionally occur after the direct appeal has been concluded, obviously qualify as what this Court's -- and everybody, we would suggest -- recognize as, quote/unquote, "collateral review".

In terms of a Rule 35 motion that says, for example, the sentence is outside of the -- outside of the proper boundaries, it's unlawful as a matter of law, I don't think we've actually conceded before this Court that that would qualify.

But certainly this--

Justice Sonia Sotomayor: Would Rule 35 permit a challenge for a Federal violation?

You have given an example of an illegal sentence that you think is discretionary; am I correct?

Mr. Weisman: --Not--

Justice Sonia Sotomayor: But does Rule 35(a) permit a legal challenge of the kind that Justice Kagan was asking?

Mr. Weisman: --Correct.

Our Rule 35 contains within the same provision a challenge to the legality of the sentence, to the manner in which it was imposed--

Justice Sonia Sotomayor: All right.

Let's assume a pure legal challenge.

Mr. Weisman: --A pure legal challenge, correct.

Justice Sonia Sotomayor: Would Rule 35(a) be other collateral relief, as designated by the statute?

Mr. Weisman: We would suggest that this Court doesn't have to answer that question here.

There are good arguments why it would not, again because in a tolling provision that speaks about collateral review -- and again, 2255--

Justice Sonia Sotomayor: So explain again why you don't think this is collateral?

Mr. Weisman: --Well, certainly when all you're doing, as the First Circuit recognized, is making a pure plea for leniency, sentence leniency, you're not--

Justice Sonia Sotomayor: No, no, no.

Why is Rule 35, assuming it's a challenge to an illegal sentence on a legal ground--

Mr. Weisman: --Well, it could be argued--

Justice Sonia Sotomayor: --Why would it not be collateral review?

Mr. Weisman: --Well, it could be argued that we are talking about vehicles that challenge the validity of a judgment that has already survived scrutiny under direct review.

And a Rule 35 vehicle, even one that raises a legal challenge, a tolling provision simply would not begin to run at that point.

Justice Antonin Scalia: I don't -- I don't understand your argument at all.

It seems to me that the phrase "post-conviction or other collateral review" means post-conviction collateral review or pre-conviction collateral review.

Isn't that what is added?

"Post-conviction or other"; what's "other" from "post-conviction"?

I guess it would be pre-conviction, wouldn't it?

Mr. Weisman: Well, we would suggest, Your Honor, that the collateral review as explained by this Court is referring to the difference between collateral review and direct review.

And the case in--

Justice Antonin Scalia: That's fine.

And is this direct review?

Mr. Weisman: --This is not -- this is clearly not -- this is not in the direct review process.

No, it's not.

Justice Antonin Scalia: So it's collateral review?

So -- so you lose.

Mr. Weisman: This Court, though, Your Honor, has said that, speaking about when Congress enacted 2255, it simplified the procedure for making a collateral attack on a final judgment entered in a Federal criminal case, but it did not purport to modify the distinction, again, between collateral review and direct review.

Justice Antonin Scalia: I would think that if -- if there is anything to the point you are making, it hinges not on the "post-conviction or other collateral" phrase, but rather on the word "review".

I suppose it could be argued that you are not reviewing the judgment if you are asking for mercy.

Whether the judgment was good or bad, you are asking for mercy.

And I would -- you know, perhaps it's not review.

Is that your point?

Mr. Weisman: Well, we go forward and use that -- even -- we would suggest, Your Honor, even more strongly that the phrase "collateral review", as that phrase has been used by this Court consistently, recognizes that this is a procedure that occurs after the completion of a direct review process.

Justice Antonin Scalia: Well, that's only because all the cases we've had involved that.

We've never had a case like this before.

So in all those other cases, we've used the natural term "collateral review".

That doesn't mean it couldn't apply to this.

It just means we've never had occasion to inquire whether it applies to this.

Mr. Weisman: But, Your Honor, respectfully, in State v. Addonizio itself, it contrasted the Rule 35 motion, for example.

Many jurisdictions, including obviously the Federal courts, had this very -- almost exact Rule 35-type proceeding.

It's never been referred to, it has never been understood in thousands of cases, as collateral review.

It's always been understood as sort of a quasi-civil inquiry, after the--

Justice Elena Kagan: Mr. Weisman, I think that that's not right, that the -- as you say, that the Rule 35 motion that Rhode Island has is based on the Federal Rule 35 motion that existed prior to 1987, and that on a couple of occasions this Court talked about that prior Federal Rule 35 as collateral review.

Am I wrong about that?

Mr. Weisman: --We don't believe so, Your Honor.

Justice Elena Kagan: U.S. v. Robinson, Barton v. United States.

I might be wrong about it.

Mr. Weisman: We don't believe it ever referred to a sentence, a plea for sentence leniency, Your Honor, no, not as a plea, a pure plea for leniency under Rule 35.

Justice Ruth Bader Ginsburg: And the current Federal rule provides for--

Mr. Weisman: Yes.

Justice Ruth Bader Ginsburg: --It's Rule 35 also, but it doesn't have the pure leniency?

That's Rhode Island?

Mr. Weisman: That's correct -- correct, Your Honor.

We are just speaking about the pre-1987 guidelines rule, which is--

Justice Anthony Kennedy: Let's assume that we adopt your formulation generally, that it has to be for legal error, collateral review has to be for legal error, and we can even add what the Ninth Circuit has found, that it has to be by a court in order to avoid clemency parole review boards, and so forth.

I don't see why you don't lose anyway, because the allegation here, the complaint, the argument, may be that there was an abuse of discretion, and if there is an abuse of discretion that is a legal ground to set aside the sentence.

Mr. Weisman: --I think, Your Honor, we have to differentiate between a legal ground and the vehicle.

Again, the vehicle, the reduction, the plea for leniency vehicle, is not a legal vehicle.

It's simply, I think, as Kholi kind of recognized--

Justice Anthony Kennedy: It's a motion made in a court, reviewable by the appellate courts of the State.

Mr. Weisman: --But what it--

Justice Anthony Kennedy: It's a little odd to say it's not legal.

If -- an abuse of discretion standard is something we're quite familiar with in the law.

We've never thought of that as being somehow extra-legal.

Mr. Weisman: --Well, to the extent it's abuse of discretion, it's really shorthand for the appellate court takes a look if the sentence is within the proper bounds and if there was, quote, "some justification" for the imposition of the sentence, then it's affirmed.

And just like on the--

Justice Sonia Sotomayor: And if there is no justification, what do they do?

Mr. Weisman: --If there is no justification -- I can say it hasn't happened so far in our State, and I think -- I don't know what happens in other States.

But essentially, that's all the inquiry is.

If it's within the legal bounds, the filing of the motion itself, as to pre-'87 guidelines, presumes the validity of the conviction and sentence and it simply says: Give me a second chance; take a second look; look at the offender, look at the characteristics, look at--

Chief Justice John G. Roberts: Are those different than the characteristics that the sentencing judge looks at in the first instance?

Mr. Weisman: --They could be the same.

They could be other.

There is a wide--

Chief Justice John G. Roberts: In other words, how these -- you've obviously seen a lot of these and I haven't seen any, but I mean, do the Rule 35 motions typically say -- do they typically concede the legal validity of the sentence and then simply say -- what?

I mean, I assume the sentencing is completely open and you can put in anything at all, like the deprived childhood, the unique situation, the age, whatever.

Mr. Weisman: --Correct.

Chief Justice John G. Roberts: In what sense is Rule 35 different from the arguments that are made at sentencing?

Mr. Weisman: It's not much different at all, Your Honor.

It's essentially the same.

It is simply--

Chief Justice John G. Roberts: But that's bad for you, isn't it, for the very point that Justice Kennedy was raising?

If it's the same sort of arguments that you get to raise as a legal matter prior to the imposition of sentencing, why should they not be considered legal matters when they are raised under Rule 35?

Mr. Weisman: --Because we don't believe they are legal matters, Your Honor.

What they are asking for is sentence leniency based on, sure, factual matters like, as you indicated, Your Honor, Chief Justice, the history of the individual, the various--

Chief Justice John G. Roberts: Are those issues that can be -- that are typically raised on direct -- direct review?

Mr. Weisman: --No, they are not, Your Honor.

We have a procedure whereby generally sentence reduction and sentencing issues must be raised pursuant to Rule 35.

If I could--

Justice Sonia Sotomayor: Do you quarrel with a statement in Mallacone, a Rhode Island 2000 decision that says:

"We will interfere with the trial court's discretion vis a vis sentencing only in rare instances where the trial justice has imposed a sentence that is without justification and is grossly disparate from the other sentences generally imposed for similar offenses? "

Mr. Weisman: --No.

Justice Sonia Sotomayor: Is that the review standard?

Mr. Weisman: Correct, correct.

What the--

Justice Sonia Sotomayor: That is the standard of review.

Mr. Weisman: --Yes.

Justice Sonia Sotomayor: So please explain to me why that is not what Justice Kennedy described as a review for abuse of discretion and why a review for abuse of discretion is not a legal challenge?

Mr. Weisman: Well, what we suggest is the abuse of discretion that that is talking about is if there is no justification.

Again, they look at the sentence and if there is no justification for it then it will be an abuse of discretion.

If there is some justification -- and again, it hasn't happened.

If there is some -- if the sentence is within the legal limits and there is some justification for it, it will be affirmed.

That's the shorthand.

Justice Sonia Sotomayor: I'm sorry.

Am I misunderstanding?

Are you saying that the Rhode Island appellate courts never change a sentence under Rule 35?

Mr. Weisman: We have not.

Justice Sonia Sotomayor: Or are you saying that they do find some lack of justification?

Mr. Weisman: No.

What we are saying, Your Honor, is if there is some justification for it and if it's within the legal sentencing bounds, the denial of the Rule 35 motion is affirmed.

And that happens all the time.

Justice Antonin Scalia: Well, then -- then think you are saying that it only gets reversed for abuse of discretion, right?

And that's a legal ground, it seems to me.

And I don't know how you could say that that's a plea for leniency.

It's a plea that the sentencing court abused its discretion and should have given a lesser sentence.

How is that leniency?

It's abuse of discretion?

Mr. Weisman: Because the inquiry is simply -- I understand the words "abuse of discretion" are used, but the

"no justification and manifestly excessive standard. "

simply, as the cases explicate, looks at the sentence; if it's legal and if there is some justification for it, the appeal is denied.

Justice Antonin Scalia: I don't want to have to figure this out case by case, or even jurisdiction by jurisdiction, as to whether it's an abuse of discretion review or leniency review or this or that.

And that -- that makes me inclined to say we should treat your Rule 35 as coming within the tolling provision, so we don't have to grapple with -- I mean, I'm not having very much success understanding the distinction that you're telling me.

I'm don't want to have to do this for 50 States.

Mr. Weisman: I understand.

But certainly, Your Honor, just using the formulation that everything that is filed in a State court post a judgment of conviction qualifies would certainly be an odd way for that Congress to expect.

Justice Ruth Bader Ginsburg: Can you read the relevant provision of the Rule 35?

There are two categories, the ones about legal challenges, at least as I read the rule, and--

Mr. Weisman: Yes.

Justice Ruth Bader Ginsburg: --Read the relevant part of Rule 35.

Mr. Weisman: Yes, certainly, Your Honor:

"The court may correct in a legal sentence at any time. "

Period.

"The court may correct a sentence imposed in an illegal manner and it may reduce any sentence when a motion is filed within 120 days after sentence is imposed or within 120 days after receipt by the court of a mandate. "

Justice Ruth Bader Ginsburg: And you are talking about reducing.

Mr. Weisman: We're talking -- this case involves only a motion to reduce sentence.

And certainly the policy considerations for what Congress would have intended--

Justice Elena Kagan: Mr. Weisman, I'm sorry.

Before you talk about policy, so this motion to reduce sentence is very short.

It just says that the man

"prays that the sentence imposed with respect to the above matter be reduced in accordance with the provisions of Rule 35. "

Would it make a difference to you if it said he prays that the sentence imposed -- he

"prays that the illegal sentence imposed with respect to the above matter be reduced in accordance with provisions of Rule 35? "

Mr. Weisman: --It might.

Justice Elena Kagan: If he had put in that word "illegal", would that have made the difference?

Mr. Weisman: It might, Your Honor.

And under our system it might -- that might have been characterized, not as a sentence reduction provision or sentence reduction vehicle, but as a legal motion to correct an illegal sentence, or challenging the sentence.

Justice Elena Kagan: So but that does suggest the difficulty that Justice Scalia raises, is that we are going to have to look at the particular rule of the State, we are going to have to look at the particular motion, we are going to look at any -- we're going to have to look at any State law regarding how motions are construed.

And this is going to be a very difficult determination.

Mr. Weisman: Sure.

If I could just address that, Your Honor.

The problem is that simply because a statute of limitations is an affirmative defense, these are matter that already are going to have been included in the State court.

Before anyone files for 2254, the State court's going to have findings.

This is either going to be a motion for sentence leniency or it's going to be a motion to correct an illegal sentence.

These matters are going to have to be pled by the State as well.

So when an applicant goes to Federal court, district court, and files a 2254, if we want to raise the affirmative defense of the time bar, which will save the Federal court a lot of time, obviously, because there is no case at all -- and if we can contrast it with exhaustion, for example, which as this Court obviously is familiar with, presents very complicated questions of whether, you know, State procedures were exhausted and claims were exhausted, this is very straightforward.

If somebody raises a motion which challenges the legality of the sentence, it will be characterized in State court in the run of the mine -- in the run of the mine cases, as an illegal sentence.

Justice Sonia Sotomayor: So a petitioner in the future in Rhode Island should file a petition that says: I'm filing a motion pursuant to 35(a) for an illegal sentence, make something up?

Mr. Weisman: Right.

Justice Sonia Sotomayor: Or for leniency.

And then are district courts supposed to figure out whether the legal challenge was frivolous or not or had a basis in law or fact--

Mr. Weisman: Well--

Justice Sonia Sotomayor: --and then decide whether they would toll or not toll based on that now side trial on what's an illegal sentence and what's just a plea for leniency?

That's what you are proposing?

Mr. Weisman: --Well, what we suggest actually is very straightforward, Your Honor.

If somebody captions their document "Motion for sentence" --

"for sentence reduction and motion to correct an illegal sentence. "

that's not this case, obviously, because then--

Justice Sonia Sotomayor: So what if they say

"correct the illegal sentence because it was an abuse of discretion? "

So is the magic words "illegal sentence" or is the magic words "abuse" -- what are the magic words?

Mr. Weisman: --Well, it's may not so much be the magic words, but it's what the -- as this Court has said, it's what the substance of the motion seeks, and that will already have been determined in State court.

Justice Antonin Scalia: Either -- either your victory will give you absolutely nothing or you have truly stupid defendant lawyers in Rhode Island.

I mean, why would anybody not caption the 35 motion that way?

Mr. Weisman: Because--

Justice Antonin Scalia: What's to lose?

You say it doesn't matter if your claim of an illegal sentence is frivolous or not.

What is to lose?

Mr. Weisman: --Because, Your Honor, they actually want to reduce their sentence.

It's not -- we don't suggest -- it's not a matter of playing games.

They feel they were sentenced for 30 years and maybe they want 20 years, and if they want to challenge the legality of the sentence, they recognize the established collateral attack vehicles.

Justice Samuel Alito: There is another argument that you could make other than the one you have been pressing, which is that collateral review means something other than a step in the criminal case.

But you have chosen not to make that; is that correct.

Mr. Weisman: Well, we have spoken about the words "collateral review" as embracing a case that's already -- upon looking at a proceeding that occurs after the finality of the judgment, which obviously includes this Court's denial of cert or the time--

Justice Antonin Scalia: But you've said that this could be done before finality.

I thought--

Mr. Weisman: --No.

Justice Antonin Scalia: --I'm sure you said that earlier, that this motion can be made before the judgment is final.

Didn't you say that?

Mr. Weisman: It can.

It certainly can, Your Honor.

And we would suggest--

Justice Antonin Scalia: But that's not what you just said.

You just said after the finality.

Which is it?

Mr. Weisman: --No.

We would suggest, Your Honor, that that furthers our argument.

A Rule 35 motion is not collateral review because it is not a motion -- you could say even in the legal sense, motion.

It's not a motion that occurs after the judgment becomes final.

And we are looking at a tolling provision, and the congressional intent of the tolling provision was finality and exhaustion of State remedies.

Justice Sonia Sotomayor: I'm sorry.

I'm not sure I understand that.

There is nothing in this rule that bars a litigant from filing after the conviction is final.

They have 120 days.

Mr. Weisman: They have 120 days.

It can be filed after the sentence is imposed, 120 days of that date, or 120 days after the conviction becomes final.

We would suggest that the term "collateral review" embraces, as Justice Alito indicated, sort of that concept that obviously in a tolling provision it begins to run when the conviction becomes final.

Justice Ruth Bader Ginsburg: Justice Scalia's suggestion--

Justice Antonin Scalia: Except that it says--

Justice Ruth Bader Ginsburg: --that perhaps the -- the leniency review is -- is not review of the conviction or sentence.

But you didn't -- you didn't do anything with that.

You didn't argue that the kind of review that's involved with leniency is really not review of the sentence for legal error.

Mr. Weisman: It's clearly not, Your Honor, correct.

I think as everybody recognizes, the Kholi panel and the Respondents in this case as well characterized this Rule 35 proceeding as sort of apart, distinct, away from the underlying case.

And that's undoubtedly true in the sense that it's not -- it's not part of the direct review process.

It's -- it's clearly not.

But that doesn't mean it's collateral review.

It's not either/or.

It can be--

Justice Ruth Bader Ginsburg: So what -- is it something in between?

It's not direct and it's not collateral?

Mr. Weisman: --It -- it's neither fish nor fowl, Your Honor.

I mean, simply because it's not part of the direct review process doesn't mean that it's quote, "collateral review", because again "collateral review" has the sort of meaning in the law, using this Court's decisions, using this Court's cases, referring to a post-judgment vehicle in which fundamental jurisdictional and other types of errors can be raised.

Justice Antonin Scalia: --I guess we need a new adjective then, because I've always thought that there are two kinds of review, direct and collateral.

You say there is a -- a tertium quid.

What do you want us to call that?

Mr. Weisman: Well, I don't know that it needs to be called anything, Your Honor.

I think the only question with respect--

Justice Antonin Scalia: I think it maybe doesn't need to be called anything because it doesn't exist.

I -- I can't--

Mr. Weisman: --Well--

Justice Antonin Scalia: --imagine anything that isn't either direct or collateral.

Mr. Weisman: --it is certainly -- it is certainly an interesting vehicle because, it can be filed prior to the finality of the judgment and it can be filed -- and it can be filed after the judgment becomes final.

And again, going -- going back to the policies, the 2244(d)(2), very clearly, two big policies again are finality, which it obviously promotes -- these cases would not be in Federal court if they were time-barred -- and exhaustion of State remedies.

To have a motion that seeks leniency only, there is no purpose that could be accomplished by bringing that motion into Federal court and therefore it doesn't serve that purpose.

Justice Elena Kagan: But, Mr. Weisman, that's true also of State habeas claims that are based only on State law.

But six circuits have said that 2244(d)(2) applies to those claims.

Are you contesting that?

Mr. Weisman: We are not.

But -- but the important element there, Your Honor, is that those vehicles can be raised to bring -- those are the vehicles, the collateral vehicles, through which the States have channelled constitutional, jurisdictional and other fundamental claims.

The Rule 35 sentence reduction vehicle doesn't -- can't do it, can't do that service.

So sure, you could have -- you could have a habeas, and the only issue, the only claim raised in the habeas could be, you know, it is in violation of -- of my State rights, which couldn't be heard in 2254, but--

Justice Elena Kagan: Where the exhaustion policy does not come into effect.

Mr. Weisman: --Exactly.

But Congress may have well said, we are not going to be in the business of looking at the individual claims.

Look, this is a collateral review vehicle.

This vehicle is a recognized vehicle for bringing, for channelling in these claims.

So that's going to toll.

But this other vehicle, this Rule 35 sentence reduction vehicle, it can never be used for a claim that could go to Federal court.

It's pointless.

I mean, it wouldn't serve the purpose, and of course it would undermine the State's interest in getting the State prisoners into Federal court within 1 year.

I will rest with my time if that's okay, Your Honor.

Chief Justice John G. Roberts: Thank you, counsel.

Mr. Weisman: Thank you, Mr. Chief Justice.

Chief Justice John G. Roberts: Ms. Mizner.

ORAL ARGUMENT OF JUDITH H. MIZNER ON BEHALF OF THE RESPONDENT

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

The First Circuit here correctly held that Khalil Kholi's motion for a reduction of sentence under Rhode Island Rule 35 was an application for State post-conviction or other collateral review with respect to the pertinent judgment or claim.

As such, it tolled AEDPA's 1-year limitation period and Mr. Kholi's petition was timely filed.

We look to the common usage and ordinary understanding of the words of the tolling provision in the context of the statute.

Collateral review is a proceeding occurring after final judgment that could affect that judgment.

Justice Samuel Alito: Am I correct that you think "post-conviction or other collateral review" means anything that occurs after the conclusion of direct review?

Ms Mizner: Yes, for purposes of the tolling provision.

Justice Samuel Alito: Then what does the phrase "or other collateral review" add?

Why -- why wouldn't Congress just say "post-conviction review"?

Ms Mizner: In Duncan, this Court talked about the possibility of civil commitment or contempt custody that could be part of the Rule 2254 proceeding and that that would not be post-conviction.

So that post-conviction is a form of collateral review, but is not the only form.

In Duncan the Court also discussed the fact that many States may call what other States call post-conviction review something else, and that that would also then be collateral.

The collateral is just a -- an umbrella that encompasses post-conviction and other forms of review after a judgment.

Chief Justice John G. Roberts: Why don't you just call your motion a motion to correct an illegal sentence?

Then we wouldn't have any dispute here, I gather.

Ms Mizner: Under the State's theory, there would not be.

I did not file this motion.

Chief Justice John G. Roberts: You are not one of the stupid lawyers that we were worried about before.

[Laughter]

Ms Mizner: I may be in other respects, Your Honor, but not this one.

Chief Justice John G. Roberts: I'm sure of that.

But you do think that if you had -- if you or whoever files these motions had simply said that, there would be no problem, right?

Ms Mizner: From the State's perspective.

I don't think that there is a problem with omitting the word "illegal", because--

Chief Justice John G. Roberts: Well, it's because you want something other than legal review, right?

You want to throw yourself on the mercy of the court.

You have got plenty of avenues to correct the illegality of the sentence, but this is something different, right?

This is to -- not correct -- you admit it's illegal, but you say it should still be reduced for a lot of reasons.

Ms Mizner: --Yes.

It is a request for the Court to -- to review, to take a second look, to reexamine the sentence to determine whether or not it was unduly severe at the time that it was imposed.

You are asking the court to -- to take a second look, either based on factors that were either submitted at sentencing or additional information that--

Chief Justice John G. Roberts: You can raise all of those -- all of those claims under the normal State collateral post-conviction, State habeas, all those other thing, right?

Ms Mizner: --You can raise those issues under the post-conviction review.

You can also raise them -- in Rhode Island, there is a provision of the post-conviction review statute that speaks of the -- any facts that would require a new proceeding in the interests of justice.

Chief Justice John G. Roberts: So I guess I'm having trouble.

You can -- the various grounds on which the sentence should have been lower than it was, including the fact that setting the sentence at that level was an abuse of discretion, you obviously can raise those at sentencing and you can raise those on direct review, right?

Ms Mizner: In Rhode Island you can not challenge your sentence on direct review.

Chief Justice John G. Roberts: Can you challenge it on -- in State habeas?

Ms Mizner: You challenge it by way of the Rule 35 motion.

It's the normal--

Chief Justice John G. Roberts: That's the only vehicle you have -- that's the only vehicle you have for challenging the sentence?

Ms Mizner: --That's the normal vehicle that is used for challenging the sentence.

I believe that you could also encompass it in a motion for post-conviction relief, which is the kind of umbrella Rhode Island procedure for raising--

Justice Anthony Kennedy: So after a conviction in the State, if there's an appeal with a number -- on direct review, with a number of issues, improperly admitted evidence and so forth, you -- the lawyer can't add -- and in addition he was sentenced under the wrong provision.

He was given 5 years too many because the judge cited the wrong provision.

You can't say that on direct review.

Ms Mizner: --Under my understanding of the Rhode Island Supreme Court decisions, the answer to that is no.

Justice Ruth Bader Ginsburg: You can challenge only the conviction, not the sentence, on direct review?

Ms Mizner: I believe that that is the holding of the Rhode Island Supreme Court.

Justice Ruth Bader Ginsburg: Do you agree that Rule 35 is not something that the prisoner must exhaust before seeking Federal habeas?

Ms Mizner: Exhaustion for Federal habeas is limited to the exhaustion of claims that are going to be presented in the Federal habeas petition.

And since the denial of a request for a sentence reduction on the grounds of abuse of discretion is not going to be a claim that is cognizable in Federal habeas corpus jurisdiction, then you would not need to exhaust it.

Justice Ruth Bader Ginsburg: Isn't the whole purpose of allowing tolling of the 1-year Federal statute the purpose to give the petitioner an opportunity to exhaust what he must exhaust?

Ms Mizner: Exhaustion is one of the purposes of the tolling provision, but this Court has recognized that AEDPA's purpose was to further the principles of comity and finality and federalism and had a clear purpose of encouraging litigants to pursue claims in State court prior to seeking Federal review.

So, tying the tolling provision to State applications shows Congressional concern for comity, which at its core is a respect for the State processes that are used in reviewing the claims of State prisoners.

Chief Justice John G. Roberts: I may have asked this already, but it seems unusual to me so I want to make sure the answer.

You have a client who is convicted of a particular offense that results in a sentence of what, zero to 5 years, okay?

And the judge in imposing the sentence engages in racial discrimination.

It turns out that he sentences African Americans to 5 years and Caucasian defendants to 2 years.

That you are telling me is a claim that you cannot raise on direct review or on -- in State habeas?

Ms Mizner: It would be raised in the State Rule 35, a motion to correct.

Chief Justice John G. Roberts: Well, you say it "would be raised".

Are you saying it can only be raised under Rule 35?

Ms Mizner: It could be raised under the State post-conviction review proceedings as well.

Chief Justice John G. Roberts: That's what I would have thought.

So Rule 35 is not the only vehicle for challenging a sentence?

Ms Mizner: No.

Chief Justice John G. Roberts: Okay.

Justice Sonia Sotomayor: I -- your adversary said the contrary, and I was -- you are flip-flopping.

Can this be brought on a direct appeal or not?

Ms Mizner: No--

Justice Sonia Sotomayor: An illegal sentence?

Ms Mizner: --Not on direct appeal.

Justice Sonia Sotomayor: So what did you mean when you answered the Chief Justice that it could be brought in collateral proceedings?

Ms Mizner: Rule 35 is a collateral proceeding.

Justice Sonia Sotomayor: That's -- just so your adversary, when he gets up on rebuttal can confirm or not this point, any challenge to an illegal sentence has to be brought first with a Rule 35(a) a motion, regardless of what the grounds of illegality are?

Ms Mizner: Yes, or perhaps in a motion for post-conviction relief under section 10-9.1.

Justice Samuel Alito: Can I return to the question Justice Ginsburg asked a couple minutes ago?

Let's say we have a case in which a defendant convicted in State court has some exhausted Federal claims that this defendant wants to raise in a Federal habeas; also files a motion seeking a reduction of sentence based purely on a request for leniency, sentence within the range prescribed by the statute.

What purpose is served by tolling the time to file the Federal habeas during the pendency of this request for leniency in the State court?

You say comity, but in concrete practical terms what purpose is served?

Ms Mizner: A prisoner who receives adequate relief in the State court, through whatever vehicle, may choose not to pursue a Federal habeas corpus claim.

Justice Samuel Alito: In your experience, does that happen a lot?

You have somebody who is sentenced to a 5-year sentence and that's within the range, also has legal challenges that would result in no conviction, no time whatsoever and no criminal conviction, that person decides to give up on the legal challenge because the 5-year sentence might be reduced to 3 or 2 or 1?

Ms Mizner: I would say that would be unlikely, but there are many Federal habeas cases that are -- raise questions of, for example, ineffective assistance of counsel at sentencing.

A State resolution that reduces the sentence would obviate the need for a Federal habeas petition in that context.

Justice Stephen G. Breyer: Can you explain--

Justice Ruth Bader Ginsburg: If you look at 2255 -- that's the Federal post-conviction review, and it also has a 1-year statute of limitations.

That limitation would not be tolled for Federal Rule 35 motion, so why should it be tolled for State?

Ms Mizner: 2255, Justice Ginsburg, has no tolling provision at all, and the reason for that may perhaps be the respect for comity that Congress recognized when you are addressing a 2254 petition filed by a State prisoner.

Justice Elena Kagan: I think, Ms. Mizner, the amicus brief in this case asserted that in Rhode Island or in other States with a rule like this many judges sit on these Rule 35 motions.

They just let them stay pending for a considerable period of time, in order to retain some ability to modify the sentence if and when they feel like doing so.

Is that your understanding of what happens to these motions, that they just sit, that they are not denied?

Ms Mizner: I don't practice in Rhode Island, but in this case the Rule 35 did not sit.

It was resolved by the trial court within 3 months.

The issue, the potential for abuse for sitting on motions, is not limited to a Rhode Island Rule 35.

It's not a peculiar concern.

Chief Justice John G. Roberts: Well, I guess the question -- and I'm sorry if I cut you off -- is not that this is a question of abuse, that it may be a good thing.

The idea is you have got a motion for reduction of sentence because of mercy, and the judge might say: Well, I'm inclined to exercise mercy if you come out of the rehab program in a good way, if it turns out after the first several months that you are a model prisoner.

In other words, it's not a question of abuse, it's a good thing; and if we start saying that the time for Federal habeas is tolled, judges might be inclined not to exercise such charity based on the prisoner's conduct after conviction.

Ms Mizner: Well, the Rule 35 also provides that the decision must be made within a reasonable time.

Chief Justice John G. Roberts: 120 days, right?

Ms Mizner: No. 120 days is the time frame--

Chief Justice John G. Roberts: For filing?

Ms Mizner: --within which the motion must be filed.

Chief Justice John G. Roberts: Right.

Ms Mizner: The rule also provides that it must be decided or resolved within a reasonable time.

So there is a -- a limitation in that respect.

Justice Antonin Scalia: Do we have any indication in the case law what a reasonable time consists of?

Ms Mizner: I have not found any Rhode Island cases discussing that particular question.

Justice Stephen G. Breyer: --Can you go back for a second?

Imagine that the defendant is convicted of robbery and he's sentenced to ten years.

He thinks there is an error in my conviction of a legal nature and he thinks there is another error in my sentence of a legal nature.

Now, I take it in Rhode Island he files an appeal to consider the first?

Ms Mizner: Yes.

Justice Stephen G. Breyer: And as to the second, he files a Rule 35 motion?

Ms Mizner: That's my understanding also.

Justice Stephen G. Breyer: And when does he file the Rule 35 motion, because it says at any time?

Ms Mizner: No.

A Rule 35 motion must be filed within 120 days.

Justice Stephen G. Breyer: No, it doesn't say that.

It says a court may correct an illegal sentence at any time.

It has nothing to do with mercy.

I want to know how it works.

He says there is a legal error in my sentence.

When -- how does he get that corrected?

Ms Mizner: A defendant would have an interest in getting an--

Justice Stephen G. Breyer: Don't take what I have as my view.

I just want the fact.

I'm asking you a fact.

How and when does the person correct the legal error in his sentence?

Ms Mizner: --He could correct it by filing the motion at any time, and--

Justice Stephen G. Breyer: Where?

Ms Mizner: --In the trial court.

Justice Stephen G. Breyer: If the trial court says no, what does he do.

Ms Mizner: He appeals.

Justice Stephen G. Breyer: Fine.

Okay.

So now we have two appeals.

One is from the judgment of conviction; another is from the judgment imposing the sentence.

Now, the Federal statute says a one-year period of limitation shall apply from the date on which the judgment became final.

Correct?

Ms Mizner: Yes.

Justice Stephen G. Breyer: Okay.

When is the date on which the judgment of the sentence became final?

Ms Mizner: If both appeals are pending at the same time, the practice would be to consolidate them, so you would have a ruling from the Rhode Island Supreme Court--

Justice Stephen G. Breyer: And if they are not -- they are not -- if they are not at the same time, then what?

Ms Mizner: --Then the judgment would become final when the Rhode Island Supreme Court affirms the conviction and either this Court--

Justice Stephen G. Breyer: Why not the sentence?

Ms Mizner: --You may have two time frames--

Justice Stephen G. Breyer: In April they affirm the conviction.

In June they affirm the sentence.

Do those two months -- is the date on which the judgment became final by conclusion of direct review, does that run from April or from June?

Ms Mizner: --I would say June.

Justice Stephen G. Breyer: June.

Okay.

Now suppose he doesn't.

Suppose that there were no appeals from the -- I see.

Our problem is that there is no appeal from the judgment -- from the sentence where he asks for correction as a matter of mercy and not law.

Ms Mizner: There may be an appeal--

Justice Stephen G. Breyer: There may be?

Ms Mizner: --from such -- from the denial of a Rule 35.

Justice Stephen G. Breyer: What I'm trying to figure out is why, if you are willing to call for purposes of one -- the one-year statute begins to run from the time the direct appeal becomes final.

Why is it a direct appeal of a sentence where you appeal the matter of law and it isn't a direct appeal of a sentence where you ask for mercy?

It's the same rule.

It's the same procedure.

Ms Mizner: It -- the Rule 35--

Justice Stephen G. Breyer: This would help you just as much, I imagine.

I'm just trying to get it straight in my mind.

Ms Mizner: --Rhode Island's manner of addressing the Rule 35 seems to be somewhat unusual in terms of--

Justice Stephen G. Breyer: You see, my basic question is: Why -- look.

Two appeals, one judgment, one sentence.

Okay?

January, June.

You are prepared to say the one-year statute does not begin to run until June.

Fine.

The Rule 35 motion, when you took an appeal, became final for purposes of a Federal habeas statute in June.

So why doesn't the Rule 35 motion become final under (1)(a) of the habeas statute, whenever that is decided, finally?

Why is it collateral at all?

Why isn't it direct, just as your first one was direct?

Ms Mizner: --If the Rule 35 motion is filed after the Rhode Island Supreme Court affirms the judgment with--

Justice Stephen G. Breyer: Wait a minute.

Judgment of what?

Judgment of conviction or judgment of sentence?

Ms Mizner: --Judgment of conviction.

Justice Stephen G. Breyer: That's the same reason that it doesn't become final when you have not appealed your sentence yet, or when they haven't -- they didn't consolidate.

I am quite confused, as you see, as to how this all works in Rhode Island.

Rhode Island -- I used to be on the First Circuit.

I know it has some special ways of doing things.

They are sometimes different, and this is different.

Ms Mizner: It is, Justice Breyer.

And I have not seen any Rhode Island cases addressing a Rule 35 motion that was not filed after the judgment of conviction had been affirmed in the context of looking for a discretionary--

Justice Stephen G. Breyer: There must be in Rhode Island some complaints about the sentence.

Ms Mizner: --In terms of a motion for reduction for leniency--

Justice Stephen G. Breyer: Both.

Ms Mizner: --I have not seen any -- prejudgment -- pre-Rhode Island Supreme Court resolution.

Justice Samuel Alito: What would happen if the statutory maximum for an offense in Rhode Island is 5 years and the sentencing judge imposes a sentence of 10 years, and the defense attorney at that time says, Well, you can't do that; that's more than a statutory maximum, and the judge goes ahead with it and then an appeal is taken?

Are you saying that the appellate court in Rhode Island would not entertain that argument?

They would say you have to go back and make a Rule 35 motion in the trial court?

I mean, that's the procedure.

That seems odd.

Is that it?

Ms Mizner: That is what the Rhode Island Supreme Court has said.

Justice Anthony Kennedy: Is there a citation for that, that you have?

Ms Mizner: I do not have that with me.

Justice Samuel Alito: Could I return you to something more basic?

Do you think the term "collateral review" is a legal term of art, or is it a term that we can -- we should interpret simply by looking up the word "collateral" in a dictionary?

Ms Mizner: Well, this Court has discussed -- has used the term "collateral review" in a number of different contexts, in civil cases, in habeas cases, in the manner of distinguishing between direct review and something that is outside direct review.

Justice Samuel Alito: Isn't -- if I look up "collateral attack" in Black's Law Dictionary, won't I find a definition there?

Won't it tell me that this is something other than the proceeding?

This is an attack on a judgment outside of the proceeding that led to the entry of that judgment.

Isn't that what the term generally means?

Ms Mizner: "Collateral" generally means supplementary, as defined in Black's, and "collateral attack" in Black's is defined as an attack on a judgment in a proceeding other than direct appeal.

Justice Samuel Alito: Right.

Ms Mizner: But the Rule 35 motion in Rhode Island is not part of the direct appeal.

It is a separate, specific--

Justice Samuel Alito: It is part of the case.

Ms Mizner: --It is part of the case, Justice Alito, but a -- a motion for a new trial based on newly discovered evidence which is viewed as collateral is also part of the original proceeding.

Justice Samuel Alito: What about just a regular motion for a new trial, not based on newly -- on newly discovered evidence?

Is that collateral, or is that part of the criminal proceeding?

Ms Mizner: The motions for new trial -- a motion for new trial that has to be filed within 10 or 14 days of the conviction would be part of the direct appeal and therefore would be -- would not be collateral.

But a motion for a new trial that is filed after the judgment is affirmed by a Court of Appeals and the time for cert has passed would be collateral.

Justice Samuel Alito: What's wrong with the argument that nothing that occurs in the criminal case itself is collateral?

What Congress had in mind when it spoke about collateral review was something like habeas.

Let me give you an alternative interpretation of this, and maybe it's completely wrong, but you will tell me why it's wrong.

Post-conviction is a term of art.

Many states, including Rhode Island, have post-conviction review statutes.

So Congress wanted to have that time, the time when those proceedings were tolled -- were pending, were tolled -- but not every State uses that phrase.

Not every State uses that term.

They have other names for the proceeding, and that's what's meant by "other collateral review".

Collateral review is a term of art.

It's not something that you understand by looking up the word "collateral" in a dictionary.

What's wrong with that?

Ms Mizner: There is no indication that Congress was limiting the use of the term "collateral review" to a post-conviction legal challenge.

Congress could have said that if it had wished.

Justice Samuel Alito: I'm not saying it has to do with whether it's legal or something else.

It has to do with whether it's in the criminal case or not in the criminal case.

Ms Mizner: Traditionally motions that are filed -- motions for new trial are -- may be filed after the judgment has been affirmed and have been viewed by the courts as collateral, as collateral review.

So there is -- the tradition doesn't limit the use of the term collateral review to a proceeding that is completely separate and apart.

Indeed, a 2255, while it may be separately filed, is then consolidated with the original proceeding and there's an entry in the docket, you shall not file any more pleadings in that separate case.

It all goes back to the original case of 2255, which is collateral, is heard by the trial court.

So there is a -- there is no reason to assume that Congress was limiting collateral review to something outside of the original proceeding.

Justice Elena Kagan: Do you--

Justice Samuel Alito: 2255 is -- is in the original case but it's a habeas substitute.

It was adopted by Congress as a substitute for habeas, isn't that right?

Ms Mizner: Yes.

Justice Elena Kagan: --Do you think that a petition for clemency that is presented to the governor would toll the limitations period?

Ms Mizner: No, I do not, Justice Kagan.

Justice Elena Kagan: Why -- why is that different?

Ms Mizner: Because 2244(d)(2) is tolling an application for review with respect to the pertinent judgment or claim.

And a -- an application for clemency doesn't produce any change in the judgment that is rendered by the Court.

It's not a request that is related to the legal reasoning behind the judgment, doesn't challenge the basis for the judgment, and it's an executive branch function, in some cases with advice and consent of a legislative body, and there is no judicial review.

So it is--

Justice Antonin Scalia: Well, that may be right but I don't think that's the reason.

I -- I thought we had held that the word "filed" in the petition means filed in a court, not filed with the governor.

It's -- it's the word "filed" in -- in the tolling provision that -- that does the work.

Ms Mizner: --I would agree.

Justice Ruth Bader Ginsburg: You think it doesn't matter that -- I mean, Rule 35 motion is a motion made in the original criminal proceeding, not to the side of it.

So isn't a collateral attack -- another proceeding to decide a subject main proceeding, but the Rule 35 motion is filed in the criminal proceeding itself?

Ms Mizner: Yes, it is, Justice Ginsberg, as is a Rule 33 motion for a new trial based on newly discovered evidence, which courts have held to be collateral.

It's a question of -- of when these motions are filed that makes them collateral.

They are not part of the direct review process.

Justice Antonin Scalia: So if this was -- if this motion had been filed before judgment, which can happen, before the judgment is final, then there would be no tolling?

Ms Mizner: Tolling would not come into -- into play until after the judgment has become final.

This has been addressed in -- it would have no impact on tolling.

Justice Antonin Scalia: So the answer is yes.

This motion which can be filed either before or after judgment, the time is tolled if it's made after the judgment but not if it's made before.

Ms Mizner: Yes.

Justice Sonia Sotomayor: There seems to be some confusion.

Judgment is rendered before this motion is made.

There is a conviction and there is a sentence, right?

Ms Mizner: Yes.

Justice Sonia Sotomayor: So there is a judgment rendered.

That's different from whether the judgment is final in a Federal sense.

It's final as far as the State is concerned, because the judgment was rendered, correct?

Ms Mizner: Well, the judgment would become final as far as the State is concerned, if on appeal, if there is an appeal and the Rhode Island Supreme Court has--

Justice Sonia Sotomayor: But if there is no appeal, it was final the day it was rendered.

Ms Mizner: --Yes.

Justice Sonia Sotomayor: As far as the State is concerned.

If there is an appeal, then it may undo that, correct?

Ms Mizner: Yes.

Justice Sonia Sotomayor: So there is a judgment and this is always post-judgment.

Ms Mizner: Yes.

Justice Antonin Scalia: Well, that's not -- that's not what the State says, anyway.

The State says, and I think the way 35 reads, it doesn't have to be filed after judgment.

Ms Mizner: It has to be filed within 121 days after the entry.

Justice Antonin Scalia: That's right.

It can't be filed any later than that.

But it doesn't say that it can't be filed before judgment.

Ms Mizner: It would have to be filed after the sentence is imposed.

Justice Antonin Scalia: That's right.

Ms Mizner: And the sentence--

Justice Antonin Scalia: When does -- when does it become final?

When does the -- even at the trial court level, when does it become final?

Ms Mizner: --I would say it becomes final when it is imposed.

Chief Justice John G. Roberts: Thank you, counsel.

Mr. Weisman, you have six minutes remaining.

REBUTTAL ARGUMENT OF AARON L. WEISMAN ON BEHALF OF THE PETITIONER

Mr. Weisman: Thank you, Mr. Chief Justice.

Again, if I could just clarify regarding the scope of Rule 35.

The reporter's notes on Rule 35 do make it clear that an illegal sentence is one which has been imposed after a valid conviction but is not authorized under law.

It includes, e.g., a sentence in excess of that provided by statute, imposition of an unauthorized form of punishment, a judgment that does not conform to the oral sentence; and our supreme court has gone on to explain this provision by saying, we have never -- we have never challenged the constitutionality of a penal statute in the context of a Rule 35 motion, nor do we declare that a sentence imposed pursuant to an unconstitutional statute is illegally as contemplated by Rule 35.

Justice Sonia Sotomayor: I'm sorry, I -- you were speaking so fast, I didn't follow you.

Mr. Weisman: I'm sorry, Justice Sotomayor.

Justice Sonia Sotomayor: Perhaps we can go back to the simple question, which is, can a defendant who has been sentenced bring a challenge to a sentence in a direct appeal, or not?

Or do they have to go by Rule 35(a)?

Mr. Weisman: Although there is dicta and some language where our supreme court says essentially file challenges to your sentence as pursuant to Rule 35, it is clear that only certain types of challenges can be brought in a Rule 35 motion.

In the run of the mill cases, they have to be brought if there is an appellate record in direct appeal, or most commonly they are brought pursuant to the State's post-conviction relief.

Justice Sonia Sotomayor: Okay.

So now we get to the point where some can go under 35(a) but some can't.

Mr. Weisman: Right.

Justice Sonia Sotomayor: So they should go on direct appeal, correct?

Mr. Weisman: The only ones that are correct on a Rule 35(a) are again where the sentence is not authorized by law, when where it has imposed unauthorized form of punishment, or a judgment--

Justice Stephen G. Breyer: That's called "it's illegal".

Mr. Weisman: --Correct.

Correct.

Justice Stephen G. Breyer: So now it's illegal.

Mr. Weisman: Correct.

Justice Stephen G. Breyer: And the odd thing is that -- that kind of appeal takes place either days or possibly weeks after the defendant may already have appealed his conviction to the higher court.

Mr. Weisman: Well -- correct.

Justice Stephen G. Breyer: Is that right?

That normally happens?

Mr. Weisman: That is correct.

Correct.

Justice Stephen G. Breyer: And what I'm curious about is what happens if the court affirms that sentence, let's say two months after it already affirmed the conviction?

Mr. Weisman: Right.

And our--

Justice Stephen G. Breyer: Which is the judgment pursuant to which -- which is the judgment that became final by conclusion of direct review?

Mr. Weisman: --And our position would be, that's not part of the direct review appellate process.

Justice Stephen G. Breyer: Why?

Mr. Weisman: That's--

Justice Stephen G. Breyer: The person is not being held in custody pursuant to a judgment of the State court, or at least a relevant judgment, until the sentence has been appealed.

Then there is the conclusion of direct review in respect to the judgment in respect to which he is being held in custody.

I'm just reading the statute, the Federal statute.

Mr. Weisman: --But Your Honor, that could occur at any time.

That can occur 5 or 10 years or 20 years later.

Justice Stephen G. Breyer: Exactly.

Mr. Weisman: And we're not--

Justice Stephen G. Breyer: That's why I don't -- that's why I am confused.

I look at the language of the Federal statute and it seems to me that this individual is not being held in custody pursuant to a judgment until that sentence is final.

Mr. Weisman: --But we would suggest--

Justice Stephen G. Breyer: And the sentence is final in the lower court, but they say when the sentence is final at the conclusion of direct review in respect to that sentence, which hasn't even taken place yet.

Mr. Weisman: --Yes, but our point would be, Your Honor, that it doesn't move the start of the 1-year limitations period.

The start of the 1-year limitations period as this Court said in Jiminez v. Quarterman begins when it begins.

It begins when that judgment becomes final, which is 90 days after our supreme court affirms the judgment of conviction--

Justice Stephen G. Breyer: Okay.

Then you are going to say--

Mr. Weisman: --It doesn't--

Justice Stephen G. Breyer: --all appeals in Rhode Island from sentences -- all appeals on their lawfulness or their mercy take place under Rule 35, and all of them are collateral.

Mr. Weisman: --No.

What we -- respectfully, what I will going to say is collateral review refers to those, as this Court said in Duncan v. Walker, habeas post-conviction relief vehicles that -- that occur after the conviction has become final.

Justice Sonia Sotomayor: I'm totally confused.

If this is part of the criminal proceeding, which is your position, that it's not collateral, but it's part of the proceedings, when does this proceeding become final?

Mr. Weisman: It becomes final--

Justice Sonia Sotomayor: That -- that truly -- because -- you're--

Mr. Weisman: --Well, under Jiminez v. Walker becomes final when -- 90 days from when the supreme court affirms the conviction.

Justice Sonia Sotomayor: --But if the Rhode Island court has told litigants that they can't challenge some portions of an illegal sentence except by way of Rule 35, how can we call the decision on the affirmance of the conviction a final determination of legality of the sentence?

That's contradictory.

Mr. Weisman: Because Congress has decided to pick the day on which the appeal becomes -- the conviction becomes final, which always occurs 90 days after the State's high court--

Justice Sonia Sotomayor: That's not what it says.

It talks about a judgment.

And a judgment in other terms is usually the conviction and the sentence.

Rhode Island for its own reasons has separated the two.

Mr. Weisman: --Yes, but Congress has set four dates on which the conviction becomes final.

Chief Justice John G. Roberts: Thank you, counsel.

The case is submitted.

Print this transcript Transcript: 

Justice Alito: This case concerns the 1-year limitation provision for filing a federal habeas petition under the Antiterrorism and Effective Death Penalty Act of 1996.

The statute provides that that one-year period is tolled by “a properly filed application for a State post-conviction or other collateral review with respect to the pertinent judgment or claim.”

And the question here concerns the meaning of the phrase, "other collateral review."

Specifically, the question here is whether a motion to reduce sentence under Rhode Island law is an application for “collateral review” that tolls the limitation period.

For the reason stated in the opinion filed today, we hold that the phrase "collateral review" in this provision means judicial review of a judgment in a proceeding that is not part of the direct review process.

The parties here agree that Rhode Island's motion to reduce sentence is not part of the direct review process, so we hold that it is an application for a collateral review that tolls the limitation period.

We therefore affirm the judgment of the United States Court of Appeals for the First Circuit.

Justice Scalia has filed an opinion concurring in part.