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INTEREST OF AMICUS CURIAE

The Criminal Justice Legal Foundation (CJLF) ⁽¹⁾ is a non-profit California corporation organized to participate in litigation relating to the criminal justice system as it affects the public interest. CJLF seeks to bring the due process protection of the accused into balance with the rights of the victim and of society to rapid, efficient, and reliable determination of guilt and swift execution of punishment.

CJLF has for many years sought to limit the abuse of federal habeas corpus to delay the finality of valid judgments in criminal cases. In 1996, Congress enacted a comprehensive reform for this purpose, of which the new statute of limitations was a key component. The decision in the present case, as subsequently expanded in Welch v. Newland, 267 F. 3d 1013 (CA9 2001), mandate stayed Oct. 29, 2001, amounts to a partial judicial repeal of this statute. It gives petitioners unlimited time to delay between the stages of California collateral review. This result is directly contrary to the purpose of the statute and contrary to the interests CJLF was formed to protect.

SUMMARY OF FACTS AND CASE

On April 3, 1990, Tony Saffold was convicted in California state court of murder, assault with a deadly weapon, and two counts of robbery, with findings of firearm use associated with the murder and robberies. J. A. 1. His conviction was affirmed, and the California Supreme Court denied review on April 15, 1992. Ibid. His conviction became "final," for present purposes, 90 days later, on July 14, 1992. See 28 U. S. C. §2244(d)(1)(A) ("expiration of the time for seeking [direct] review"); Supreme Court Rule 13.1 (90 days).

Five years later, on April 17, 1997, Saffold delivered to prison authorities ⁽²⁾ his state petition for writ of habeas corpus for filing in the Superior Court of San Joaquin County. For prisoners like Saffold, whose conviction became final before the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the one-year limitations period began running on April 24, 1996 and expired on April 24, 1997. See Duncan v. Walker, 533 U. S. 167, 150 L. Ed. 2d 251, 257, 121 S. Ct. 2120, 2123 (2001) (noting Second Circuit holding to same effect). ⁽³⁾ His initial filing on April 17, 1997, stopped the limitations period from running just seven days before expiration. The Superior Court denied his petition on June 9, 1997. J. A. 2. On June 14, 1997, Saffold delivered to prison authorities his habeas petition to the California Court of Appeal, Third Appellate District. The Court of Appeal denied that petition on June 26, 1997. Ibid.

On November 13, 1997, after four and one-half months had passed, he filed an original petition for writ of habeas corpus in the California Supreme Court. Saffold contends he did not receive notice of the state Court of Appeal's denial until November 10, but the Ninth Circuit does not appear to have credited this claim, and its opinion proceeds on the premise that he "waited four and one-half months." Saffold v. Newland, 250 F. 3d 1262, 1265, and n. 3 (CA9 2001); see also App. to Pet. for Cert. F-4 (magistrate judge notes false statement in affidavit and warns Saffold of consequences of perjury). On May 27, 1998, the California Supreme Court denied review "on the merits and for lack of diligence." App. to Pet. for Cert. G-1.

On June 4, 1998, Saffold filed an application for writ of habeas corpus in the United States District Court, Eastern District of California. See J. A. 3. The Attorney General moved to dismiss on the ground that Saffold's application for writ of habeas corpus was barred by the statute of limitations set forth in 28 U. S. C. §2244(d). See Pet. for Cert. 4.

The magistrate judge held that the statute "began to run again" after the Court of Appeal denied relief and had expired by the time Saffold filed in the California Supreme Court. App. to Pet. for Cert. F-5. The District Court adopted the findings and recommendations filed by the magistrate judge, granted petitioner's motion to dismiss, and ordered the case dismissed. App. to Pet. for Cert. E-2. The District Court issued a certificate of appealability on the statute of limitations issue only. See App. to Pet. for Cert. D-1; 28 U. S. C. §2253(c); Fed. Rule App. Proc. 22(b). The certificate does not mention any arguably meritorious underlying claims. It predates Slack v.McDaniel, 529 U. S. 473, 484-485 (2000).

The Ninth Circuit reversed, holding that Saffold's petition was within the limitations period. Saffold, 250 F. 3d, at 1266. In applying its ruling in Nino v. Galaza, 183 F. 3d 1003 (CA9 1999), it found that the District Court had erred by failing to toll the federal statute of limitation for the entire period from the initial filing in the Superior Court to the Supreme Court's dismissal. Saffold, supra, at 1265. On May 23, 2001, the Ninth Circuit filed an order denying the petition for rehearing and suggestion for rehearing en banc but amended its opinion. Pet. for Cert. 5; see App. to Pet. for Cert. C-1. This Court granted certiorari on October 15, 2001.

SUMMARY OF ARGUMENT

The central purpose of the statute of limitations for habeas cases was to move the cases along to finality by requiring the petitioner to initiate each stage of review within a reasonable time. The Ninth Circuit's rule of open-ended tolling between the stages of state collateral review would defeat that central purpose.

In California, there is no appeal from denial of habeas relief by the Superior Court, but the petitioner can file a successive petition in the Court of Appeal or Supreme Court. In the ordinary sense of the word, there is no proceeding "pending" in the interval between a nonappealable judgment and a successive petition. If any tolling rule to cover the gap is to be created, it would be a stretch of the language to cover a perceived necessity or implement an unexpressed intention of Congress. Any such stretching should be strictly limited to the necessity.

Whether a state court chooses to accept an untimely petition and decide it on the merits has no bearing on whether the federal statute of limitations clock was ticking in the interval preceding the filing of that petition. The statute of limitations is a federal rule enacted by Congress, and it has nothing to do with the doctrine of adequate and independent state grounds. The Ninth Circuit has imported a confused and problematic body of law into an area where it has no application.

In states where an unsuccessful collateral review petitioner has a fixed time to initiate review at the next level of state courts, the federal statute should remain tolled for that interval. Where there is no fixed interval for the particular procedure in state law, the federal courts should adopt the interval for the most closely analogous procedure that does have a fixed interval. In California, those intervals are 60 days to appeal a Superior Court judgment to the Court of Appeal and 10 days from finality to seek Supreme Court review of a Court of Appeal decision. Habeas petitioners seeking review via successive petitions who wait longer than other appellants should not have their federal limitation period tolled during the excess time.

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1. This brief was written entirely by counsel for amicus, as listed on the cover, and not by counsel for any party. No outside contributions were made to the preparation or submission of this brief.

Both parties have given written consent to the filing of this brief.

2. Amicus assumes for the sake of argument that Saffold's declaration of his dates of delivery to prison authorities, J. A. 75-76, is true, and that the mailbox rule set forth in Houston v. Lack, 487 U. S. 266, 276 (1988) applies to state habeas petitions for the purpose of the tolling provision of the AEDPA. See Saffold v. Newland, 250 F. 3d 1262, 1268 (CA9 2001). Under this rule, Saffold's April 17 delivery of his petition to prison authorities, not the May 1 filing date, would commence tolling of the limitations period.

3. The state did not seek review of the "grace period" holding in Walker, presumably because there was no division in the circuits on the point.