Habeas – Filing Deadline
For purposes of the federal habeas 1-year statute of limitations, a state court’s decision to accept an untimely filing makes the postconviction review “properly filed” but it doesn’t make it retrospectively “pending” so as to toll the limitation period.
Griffith seeks federal habeas review of his state court conviction. The limitation provision requires filing within within one year of “the date on which the judgment became final by the conclusion of direct review,” 28 U.S.C. §2244(d)(1)(A). But (d)(2) excludes from this period the time during which a “properly filed” collateral-attack is “pending” in state court. Griffith undertook a collateral attack but after the Illinois court of appeals denied it, Griffith was late in filing a petition seeking review from the Illinois supreme court. That court nonetheless granted Griffith’s motion “to accept his petition instanter.” The supreme court ultimately denied the petition. Griffith filed his subsequent 2254 habeas within 1 year of the date the state supreme court denied his petition for review, but more than 1 year had elapsed when all the time was considered. The 7th now says, all the time must be considered.
A court that decides to accept an untimely filing could say any of three things: (1) we accept this filing despite its belated submission; (2) we grant a retroactive exten- sion of time; or (3) we accept this filing instanter. As far as we can see, these are identical for the purpose of Illinois law. See, e.g., Wauconda Fire Protection District v. Stonewall Orchards, LLP, 214 Ill. 2d 417, 424–29, 828 N.E.2d 216, 220–23 (2005). More importantly, they are identical for the purpose of federal law. (The meaning of “pending,” a term in a federal statute, is a question of federal law.) The point of Fernandez is that state courts’ decisions do not have retroactive effect. Once a petition has stopped being “pending,” nothing a state court does will make it “pending” during the time after the federal clock began to run and before another paper is filed in state court. Fernandez holds that, if a state court accepts an untimely filing, a proceeding is “pending” from the paper’s filing date; thus Griffith had a “pending” proceeding from September 1, 2005, when he tendered the motion for leave to file instanter, through December 1, 2005, when the state court denied the petition for leave to appeal. But nothing was pending from August 18 through 31. This meant that the year prescribed by §2244(d)(1) expired on November 17, 2006, and Griffith’s federal petition was 13 days late.
The court also rejects equitable tolling, which can be established through “egregious behavior” by the petitioner’s attorney. But mere miscalculation or misunderstanding of the limitation date doesn’t meet that standard. “Such a blunder does not extend the time for filing a collateral attack.”
Denial of petition for rehearing (en banc) garners 3 dissenting votes. The dissenters make several points, but the largest one is made only implicitly: 2554 habeas litigation is extremely technical, and not for the faint-hearted. In particular, the 1-year statute of limitations is going to be enforced remorselessly, as this case indicates. But does this case have any implications for Wisconsin-related habeas practice? There is no analog in Wisconsin procedure to Illinois’ authority to extend collateral review deadlines. If a Wisconsin defendant misses the notice of appeal deadline on a 974.06 motion, then that is the end of it; it’s a civil appeal, therefore, the NOA deadline isn’t extendible. Same for a tardy petition for review of a court of appeals 974.06 decision (the PFR deadline isn’t extendible). So it’s hard to imagine a Griffith-type situation arising. Of course, a missed deadline on direct appeal is something else, because that deadline may be extended. E.g., State v. Knight, 168 Wis. 2d 509, 484 N.W.2d 540 (1992) (court of appeals can reinstate, via habeas, direct appeal deadlines lost due to ineffective assistance of counsel); State v. Christine M. Quackenbush 2005 WI App 2 (court of appeals can reinstate, on procedural motion, lost notice of intent deadline); State ex rel. Schmelzer v. Murphy, 201 Wis. 2d 246, 548 N.W.2d 45 (1996) (supreme court can reinstate direct-appeal petition for review deadline lost due to ineffective assistance). Why does this distinction matter? as explained by Jimenez v. Quarterman, 129 S. Ct. 681, 686 (2009), “where a state court grants a criminal defendant the right to file an out-of-time direct appeal during state collateral review, but before the defendant has first sought federal habeas relief, his judgment is not yet ‘final’ for purposes of § 2244(d)(1)(A)” (emphasis added). But: never say never! A missed PFR deadline may be extended due to court of appeals clerical error, State ex rel. Jose DeJesus Fuentes v. Court of Appeals, 225 Wis.2d 446, 593 N.W.2d 48 (1999), and although that case arose on direct appeal and its holding might be limited to that context, it can’t be assumed that it is so limited. That possibility shouldn’t, however, obscure the larger point that collateral attack extensions are a rare, indeed as-yet unseen, bird.