Is Statute of Limitations Tolled While Awaiting Certiorari?

Lawrence v. Florida

28 U.S.C. §2244 imposes a one year statute of limitations on federal habeas corpus petitions, tolled while an “application for State post conviction or other collateral review” “is pending.” Lawrence was convicted of killing Finken and sentenced to death. 364 days after his sentence became final, he filed an appeal, which was upheld, and he then appealed to the Supreme Court. That appeal was denied by the Florida Supreme Court, and Lawrence waited 113 days to file a habeas petition. Therefore his habeas petition can only be timely if his application was “pending,” and therefore the statute of limitations tolled, during the Court’s consideration of his petition for certiorari.

State post-conviction applications remain pending until the application has achieved final resolution through the State’s post-conviction procedures. This makes sense in light of the fact that state prisoners need not petition the Supreme Court in order to exhaust state remedies for the AEDPA. Other sections refer to “direct review” which has been held to include certiorari petitions to the Supreme Court and the difference in language suggests a deliberate effort to convey particularized meaning. The Court notes providing tolling for the time awaiting a petition for certiorari would encourage those petitions as a delay tactic, and that this reading of the law does not create any more duplicative work than the alternate reading would.

Assuming, as both parties agree, that equitable tolling is available under §2244, Lawrence must show (1) that he has been pursuing his rights diligently , and (2) that some extraordinary circumstance stood in his way.” The Court does not accept either that the legal confusion over the AEDPA’s tolling periods, nor his lawyer’s mistake about the deadline (even though the lawyer was state-appointed), justifies equitable tolling. Lawrence also argues that his mental capacity justified his reliance on his lawyer, but he has made no showing of such an incapacity.

The one year limitation for habeas petitions does not include the time an application for State post-conviction review spends pending before the Court. The tolling period begins after an application for certiorari is refused or the case is decided by the Court. The law refers to “application[s]” for State post-conviction review, so the majority’s textual reading does not go uncontested. If judgments of conviction are not final until the Court decides or denies certiorari, the limitation period should not begin before those cases are concluded. Anyway, the text of the statute should be contrasted with another statute that expressly intended to exclude these cases. The dissent also distinguishes exhaustion as based on claims which may be raised, from tolling which concerns procedures which may be invoked The dissent also argues that duplicative filing would not occur under its own reading of the clause, as it would (concededly) occur under the majority’s reading. Finally the dissent points out that while the majority suggests that equitable tolling may provide a solution, it emphasizes that it declines to hold that equitable tolling is available under §2244.