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Habeas – Tolling Provision, 28 U.S.C. § 2244(d)(2)

Wall v. Kahlil Kholi, USSC No. 09-868, 3/7/11

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.

Kholi was convicted in 1993, and lost his “direct” appeal, which became “final” for purposes of 2254 review on May 29, 1996. Absent some form of tolling, he therefore would have had one year from that date to file his federal habeas petition. Tolling, as indicated above, is triggered by a “properly filed” application for collateral review (assuming, of course, it occurs within that 1-year window). Kholi undertook collateral review – twice, in fact. He filed what is termed under Rhode Island procedure a Rule 35 motion for sentencing relief, on May 16, 1996, and while that was pending, a separate postconviction attack on the conviction itself. He lost the Rule 35 motion on January 16, 1998, and lost the other motion on December 14, 2006. The only detail that matters: his subsequent 2254 petition is timely only if the Rule 35 motion is considered to be one seeking “postconviction review.” The Court, as indicated by the quote above, says it is.

Somewhat surprisingly, the Court hasn’t previously tried to define “collateral review” (or, “attack”). It attempts to do so now, starting with the dictionary definition of “collateral” as “indirect,” which leads to a “conclusion that ‘collateral review’ means a form of review that is not part of the direct appeal process.” Seems easy enough, but just what does the Court mean by “form of review”? Rhode Island argued that review requires a “legal” challenge to conviction or sentence, not a mere discretionary reduction in sentence under Rule 35. The Court rejects the distinction as arbitrary and unworkable. The definition of “collateral review,” then, is broad:

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.

But there are certainly limits, which the Court illuminates with a couple of concrete examples, fn. 4 (motion for postconviction discovery or appointment of counsel). What are the possible lessons for the Wisconsin practitioner? The guess here is, few and far between. An attack on the length of sentence as an erroneous exercise of discretion has to be part of the direct appeal process, Rule 809.30. Same for “ancillary” aspects of the sentence, such as DNA surcharge, fine, etc. So the sort of situation presented by Kholi may not be likely to arise. The holding would seem to extend tolling to a new-factor-based motion for sentence modification filed within one year of the direct appeal becoming “final.” However, it probably doesn’t call into question the idea that a sentence modification based on a motion filed outside the 1-year limitation period doesn’t “reset” that period, Lozano v. Frank, 424 F.3d 554 (7th Cir.2005). Distinguish resentencing, Linscott v. Rose, 436 F.3d 587, 591 (6th Cir.2006) (“the one-year statute of limitations begins to run on a habeas petition that challenges a resentencing judgment on the date that the resentencing judgment became final, rather than the date that the original conviction became final” – keeping in mind that this holding is limited to petitions challenging the resentencing, i.e., the very event that reset the limitations period).

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