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Habeas Procedure: Certificate of Appealability, Defects and Jurisdiction – Petition-Filing Limitation Period

Rafel Arriaza Gonzalez v. Thaler, USSC No. 10-895, 1/10/12, affirming 623 F. 3d 222 (5th Cir. 2010)

Habeas Procedure – Certificate of Appealability, Defects and Jurisdiction 

… 28 U. S. C. §2253(c), provides that a habeas petitioner must obtain a certificate of appealability (COA) to appeal a federal district court’s final order in a habeas proceeding. §2253(c)(1). The COA may issue only if the petitioner has made a “substantial showing of the denial of a constitutional right,” §2253(c)(2), and “shall indicate which specific issue” satisfies that showing. §2253(c)(3). We hold that §2253(c)(3) is not a jurisdictional requirement. Accordingly, a judge’s failure to “indicate” the requisite constitutional issue in a COA does not deprive a court of appeals of subject-matter jurisdiction to adjudicate the habeas petitioner’s appeal.

Convicted in  a Texas state court, Gonzalez filed a federal habeas petition asserting a violation of his right to speedy trial, but the district court dismissed it as time-barred (subject of the Court’s other holding in this case). A court of appeals judge issued a COA, identifying the timeliness question – not speedy trial – as satisfying the § 2253(c)(3) showing. The Court, as seen, now rejects Texas’s argument that this omission created a jurisdictional bar to review of the claim. The result is consistent with present practice in the 7th Circuit, Young v. United States, 124 F.3d 794, 799 (7th Cir.1997) (” The absence of a certificate of appealability precludes an appeal; should an erroneously issued certificate be treated the same as the lack of a certificate? We think not..”).

The Court’s analysis turns on statutory construction; text as informed by policy objectives. The following passage appears to be key (though there is more to it)

We accordingly have applied the following principle: A rule is jurisdictional “[i]f the Legislature clearly states that a threshold limitation on a statute’s scope shall count as jurisdictional.” Arbaugh v. Y & H Corp., 546 U. S. 500, 515 (2006). But if “Congress does not rank a statutory limitation on coverage as jurisdictional, courts should treat the restriction as nonjurisdictional.” Id., at 516.[fn3] That clear-statement principle makes particular sense in this statute, as we consider — against the backdrop of §2253(a)’s clear jurisdictional grant to the courts of appeals and §2253(b)’s clear limit on that grant — the extent to which Congress intended the COA process outlined in §2253(c) to further limit the courts of appeals’ jurisdiction over habeas appeals.
Here, the only “clear” jurisdictional language in §2253(c) appears in §2253(c)(1). …

The parties also agree that §2253(c)(2) is nonjurisdictional.[fn4] That is for good reason. Section 2253(c)(2) speaks only to when a COA may issue — upon “a substantial showing of the denial of a constitutional right.” It does not contain §2253(c)(1)’s jurisdictional terms. …

It follows that §2253(c)(3) is nonjurisdictional as well. Like §2253(c)(2), it too reflects a threshold condition for the issuance of a COA — the COA’s indication of “which specific issue or issues satisfy the showing required by paragraph (2).” It too “does not speak in jurisdictional terms or refer in any way to the jurisdiction of the [appeals] courts.” Arbaugh, 546 U. S., at 515 (internal quotation marks omitted). The unambiguous jurisdictional terms of §§2253(a), (b), and (c)(1) show that Congress would have spoken in clearer terms if it intended §2253(c)(3) to have similar jurisdictional force. Instead, the contrast underscores that the failure to obtain a COA is jurisdictional, while a COA’s failure to indicate an issue is not. A defective COA is not equivalent to the lack of any COA. …

Habeas – Filing Limitation Period 

… 28 U. S. C. §2244(d)(1)(A), establishes a 1-year limitations period for state prisoners to file federal habeas petitions, running from “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” We hold that, for a state prisoner who does not seek review in a State’s highest court, the judgment becomes “final” on the date that the time for seeking such review expires.

We now make clear what we suggested in those cases: The text of §2244(d)(1)(A), which marks finality as of “the conclusion of direct review or the expiration of the time for seeking such review,” consists of two prongs. Each prong — the “conclusion of direct review” and the “expiration of the time for seeking such review” — relates to a distinct category of petitioners. For petitioners who pursue direct review all the way to this Court, the judgment becomes final at the “conclusion of direct review” — when this Court affirms a conviction on the merits or denies a petition for certiorari. For all other petitioners, the judgment becomes final at the “expiration of the time for seeking such review” — when the time for pursuing direct review in this Court, or in state court, expires. We thus agree with the Court of Appeals that because Gonzalez did not appeal to the State’s highest court, his judgment became final when his time for seeking review with the State’s highest court expired.

Gonzalez litigated his direct appeal through the intermediate Texas appellate court, but didn’t seek review in the highest state appellate court, which issued its mandate about 6 weeks after the time for such review expired. He then filed a state collateral attack, the details of which are irrelevant, except that its pendency tolled the 1-year limitation period for a 2254 federal habeas. If the limitation period commenced on the date the mandate issued, then Gonzalez’s subsequent habeas petition would be timely; if measured by the date the right of state direct-appeal expired, then the petition would be untimely. As seen, the Court comes to the latter conclusion.

Not raised or discussed by this appeal, but probably worth keeping in mind: in order to exhaust a claim, a 2254 petitioner must have sought discretionary review of that claim in the Wisconsin supreme court of the adverse court of appeals decision, Bintz v. Bertrand, 403 F.3d 859, 864 (7th Cir. 2005):

… While the Wisconsin Supreme Court denied his petition for review, Robert was still required to present the issue to it. See O’Sullivan v. Boerckel, 526 U.S. 838, 848, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999) (“Boerckel’s failure to present three of his federal habeas claims to the Illinois Supreme Court in a timely fashion has resulted in a procedural default of those claims”); Moore, 345 F.3d at 485-86 (Wisconsin Supreme Court’s discretion to grant judicial review is similar to that of the Illinois Supreme Court, and Boerckel requires presentation of all issues to that court). Robert does not argue either cause for his procedural default or that the procedural default would cause a fundamental miscarriage of justice. As Robert failed to properly exhaust his state remedies, he has procedurally defaulted his challenge to the Oshkosh Testimony.

Mentioned here, merely to clarify that consequences beyond measurement of the limitation period will flow from failure to seek direct-appeal review in the Wisconsin supreme court.

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