Go to:	Argument - Part I	Case Menu	Briefs Menu

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 constitutional protections 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.

This case involves the proper interpretation of Congress's landmark reform of habeas corpus law in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). This law, if properly implemented, will greatly reduce unnecessary delay in the enforcement of the criminal law. These changes would advance the rights of victims and society which CJLF was formed to protect.

SUMMARY OF FACTS AND CASE

On June 16, 1992, Sherman Walker was convicted of robbery and sentenced, having pleaded guilty, in Queens County, New York. This is the conviction at issue in the present habeas petition. He also has two other robbery convictions in February of the same year. See Pet. for Cert. 3, 12a.

The June 16 judgment was affirmed by the state intermediate appellate court. It rejected as factually unsubstantiated a claim under People v. Rosario, 9 N. Y. 2d 286, 173 N. E. 2d 881 (1961), relating to disclosure of statements of prosecution witnesses. See People v. Walker, 628 N. Y. S. 2d 950, 951 (N. Y. App. Div. 1995). He further claimed that the police failed to contact an attorney who had represented him in an unrelated matter before placing him in a lineup. The appellate court rejected this claim on the grounds that the police have no obligations to make such a contact, given that defendant was represented at the lineup by another attorney appointed for him in this matter. Ibid.

The state high court dismissed Walker's appeal on January 5, 1996. People v. Walker, 87 N. Y. 2d 926, 641 N. Y. S. 2d 608, 664 N. E. 2d 519 (1996). The case became final under state law ten days later. See Pet. for Cert. 15a. The time to petition for certiorari expired, at the latest, Monday, April 15, 1996. Meanwhile, on March 18, 1996, the intermediate appellate court denied on the merits a coram nobis application based on alleged ineffective assistance of appellate counsel. People v. Walker, 639 N. Y. S. 2d 932 (1996). "According to appellant [Walker], he also filed a separate motion in February 1996 to vacate his conviction in state court, which denied the motion in April 1996." App. to Pet. for Cert. 2a. The President signed the Antiterrorism and Effective Death Penalty Act of 1996, 110 Stat. 1214, on April 24, 1996.⁽²⁾

On April 10, 1996, Walker filed in United States District Court a combined civil rights complaint against his attorneys under 42 U. S. C. §1983 and habeas petition challenging his conviction in the June 16 case, as well as the two other cases. See App. to Pet. for Cert. 2a, 17a-18a. On July 9, 1996, the District Court dismissed the civil rights suit as frivolous, as "court-appointed lawyers do not act under color of state law within the meaning of §1983." Id., at 19a (citing Polk County v. Dodson, 454 U. S. 312 (1981)). The District Court also dismissed the habeas petition without prejudice because petitioner failed to show exhaustion by detailing the claims litigated in state court. Id., at 20a.

Rather than seeking relief from this dismissal, Walker waited until May 20, 1997, and then filed the instant petition. Id., at 12a. This petition attacked only the June 16 conviction on the two grounds considered in the original appeal: the Rosario claim and the failure to contact previous counsel before the lineup. Id., at 11a. The District Court dismissed the petition as barred by the statute of limitations. Id., at 15a-16a. The District Court further denied a certificate of appealability, finding no "substantial showing of the denial of a constitutional right." Id., at 16a.

The Court of Appeals issued a certificate of appealability on the statute of limitation issues only. Walker v. Artuz, 208 F. 3d 357, 358 (CA2 2000). The court did not indicate any basis for believing that petitioner's underlying claims were even debatably meritorious, cf. Slack v. McDaniel, 529 U. S. __, 146 L. Ed. 2d 542, 551, 120 S. Ct. 1595, 1601 (2000), presumably because Slack was decided a month later.

The Court of Appeals decided that the tolling provision of 28 U. S. C. §2244(d)(2) included tolling for a prior federal petition. 208 F. 3d, at 360. As applied to this case, the statute would be tolled from the effective date of the AEDPA until dismissal of the first federal petition on July 9, 1996. Hence, the petition filed May 20, 1997, would be timely.

The State petitioned this Court for a writ of certiorari to resolve the split between this decision and the contrary decisions of other circuits, see infra, at 8, which was granted on November 13, 2000.

SUMMARY OF ARGUMENT

Unless tolling applies, the last day to file a petition for a writ of habeas corpus in this case was April 24, 1997. Finality in this case precedes the enactment of the AEDPA. Under the rule of Sohn v. Waterson, pre-AEDPA petitioners had one year from enactment to file.

The language and history of the statute indicate that only state collateral petitions toll it. The argument of the Court of Appeals that "other collateral review" in 28 U. S. C. §2244(d)(2) must refer to federal petitions cannot be reconciled with the use of nearly identical language to refer to state petitions in §2263(b)(2). "Other collateral" was apparently added because, in some states, "post-conviction" refers to a specific procedure rather than a class of procedures. The complete absence of a tolling provision in the otherwise equivalent statute of limitation for federal prisoners further reinforces the conclusion that tolling is only for state petitions.

Legislative history confirms this interpretation. There is no indication that changes in wording during the evolution of the bill were intended to include tolling for federal petitions. The simultaneous appearance of "other collateral" in §§2244(d)(2) and 2263(b)(2) strongly implies it has the same meaning in both.

The purpose of the AEDPA is best served by not allowing tolling for prior federal petitions. To minimize delay and repetitive filings, petitioners who have claims that may or may not be exhausted should be encouraged to file them in state court first. The generous interpretation of tolling for state court filings in Artuz v. Bennett, coupled with denying tolling for unexhausted federal petitions, will encourage the proper procedure and reduce shuttling between state and federal courts.

Equitable tolling is available to mitigate the harshness of applying the above rule in circuits where the pre-Bennett precedents were contrary to the eventual outcome of that case.

	Beginning of this file	Argument - Part I	Case Menu

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. As we will discuss in part I, infra, the effective date of the statute makes the precise calculation of the finality date immaterial. By any calculation, finality predates the statute.