Post-Conviction Relief for Immigrants

 

Under AEDPA, the limitations period is tolled “during the time [in] which a properly filed application for state post-conviction or other collateral review with respect to the pertinent judgment or claim is pending.”[97]  The answers to the following questions will assist counsel in determining the final date on which the federal habeas petition is due.

 

·    Question One: Have any state post-conviction petitions been filed prior to the expiration of the limitations period?

 

It is important to remember that the one-year period cannot be tolled if the statute of limitations has already run.  If the year has already passed, and no state post-conviction actions were filed during that period, there is no basis for statutory tolling.  Under those circumstances, the only possible hope is equitable tolling, discussed in § 5.34 below, or an alternative starting date for the one-year period.

 

·    Question Two: What types of post-conviction petitions will operate to toll the limitations period?  

 

Only the filing of a state post-conviction actions operate to toll the statute.  Federal habeas corpus petitions filed pursuant to 28 U.S.C. § 2254 do not toll the running of the one-year statute.[98]

 

Moreover, only “properly filed” state post-conviction actions will toll the one-year period.  In Artuz v. Bennett,[99] the U.S. Supreme Court held that “an application is ‘properly filed’ when its delivery and acceptance are in compliance with the applicable laws and rules governing filings.”  As long as the petition comports with state filing requirements, it will operate to toll the limitations period.  Examples include “the form of the document, the time limits upon its delivery, the court and office in which it must be lodged, and the requisite filing fee.”[100]  “Properly filed” includes format, fees, and service requirements, but does not include compliance with substantive requirements, such as the prohibitions against successive applications or untimely petitions.  In other words, the requirement that a petition be properly filed does not require that the petition be meritorious or that the petitioner be substantively entitled to relief.

 

Finally, the Ninth Circuit has held that any state action attacking the judgment in question will operate to toll the running of the statute, even if the state action did not raise any of the grounds alleged in the federal habeas corpus petition.[101]

 

· Question Three: How much time has been tolled?

 

            The entire time during which properly filed state habeas corpus petitions are pending is counted for tolling purposes.[102]  Thus, each day from the day the first state post-conviction action is filed in the trial court, until it has been rejected by the state supreme court, counts towards tolling.  This is true even if the petitioner occasions some delay between the date one court has denied the petition and the date the application is filed in the next state court.[103]

 

CAVEAT:  Unlike direct appeal, there is no tolling credit for the 90 days within which a petition for writ of certiorari to the United States Supreme Court may be filed following the denial of state post-conviction relief.[104]

 

For any pro se state post-conviction actions, it should also be remembered that the date of filing is the date the prisoner delivered the petition to prison authorities for forwarding to the court for filing.  This “mailbox” rule applies to both state and federal actions.[105]  The date of delivery to prison officials for filing is normally presumed to be the handwritten date on the petition, unless there is evidence to the contrary.

 

            PRACTICE POINTER:  As a practical consideration, it must be remembered that a properly filed petition in state court only tolls the time that remains within the one-year period.  Once the last state court has denied the petition, the petitioner must file the federal action within the time that was remaining within the federal statutory period as of the date the first state petition was filed.  Thus, it is advisable to file a state court petition as much in advance as possible of the end of the one-year statutory period, because once the final state court petition has been denied, there must be sufficient time remaining to file the federal action. 

 

[97] 28 U.S.C. § 2244(d)(2).

[98] Duncan v Walker, 533 U.S. 167, 121 S.Ct. 2120, 2127 (2001).

[99] Artuz v. Bennett, 531 U.S. 4, 121 S.Ct. 361, 354, 148 L.Ed.2d 213 (2000).

[100] Ibid.

[101] Tillema v. Long, 253 F.3d 494 (9th Cir. 2001).

[102] See Nino v. Galaza, 183 F.3d 1003, 1005 (9th Cir. 1999).

[103] See Safford v. Newland, 224 F.3d 1087 (9th Cir. 2000).

[104] Bunney v. Mitchell, 241 F.3d 1151, 1156 (9th Cir. 2001).

[105] See Safford v. Newland, 224 F.3d 1087 (9th Cir. 2000).