Criminal Justice Section  


Criminal Justice Magazine
Fall 2001
Volume 16, Issue 3

Criminal Justice Matters

J. Vincent Aprile II

Executed on a Technicality

Often in the past, critics of this nation’s criminal justice system, whether average citizens or criminal justice professionals, would remark that too many criminal defendants "get off on technicalities." This lament implied that the relief granted the citizen accused by a trial court or an appellate tribunal was not based on the accused’s actual innocence or even his fundamentally unfair trial, but just because some actor in the criminal justice system, such as a police officer, prosecutor, or judge, did not cross all the "t"s and dot all the "i"s required by the law. Today the lament should actually be "too many death row inmates are being executed on technicalities."

Nowhere are the "technicalities" that preclude relief for a death row inmate more evident than in federal habeas corpus review. Today’s version of federal habeas corpus for both death and non-capital cases is the product of a recent congressional revision, aptly christened the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). (Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104–132, 110 Stat.1214, codified as amended at 28 U.S.C. § 2244.)

One of the key provisions of that legislation was the creation of a "one-year time period of limitations" for filing "an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a state court." This one-year statute of limitations most often begins for a convicted state defendant "[a]t the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." Although not yet decided by the United States Supreme Court, a number of federal circuit courts of appeal have interpreted the statutory language to mean that, following the direct appeal in the state court of the conviction and death sentence, that judgment does not become final until either a timely petition for certiorari has been denied or the 90-day filing period has expired without a cert petition being filed.

As is immediately obvious, some five years after the AEDPA became law, the routine or common starting point for this statute of limitations remains unsettled. For any conscientious litigator representing a convicted criminal defendant, particularly one who received a death sentence, it is more than troubling that the law is not yet certain exactly when that one-year period commences.

In actuality, this statute of limitations was most likely designed to limit to one year the maximum amount of time a convicted state defendant could be out of court, whether state or federal, once the judgment of conviction became final. Yet that intention has not been realized by the words of the statute. Although the AEDPA provides that "[t]he time during which a properly filed application for state post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under" the AEDPA, that language has not proven sufficient to exclude all the situations when a convicted defendant is legitimately in court and under the supervision of a judge or appellate tribunal.

Once the judgment in question becomes final, following the direct appeal, the one-year limitations statute is tolled by the defendant filing in state court a post-conviction action or other collateral review pleading. Unfortunately, once the state post-conviction action becomes final, the one-year statute of limitations is revived and continues to run until the federal habeas corpus action is commenced. At present a number of federal courts of appeal have indicated that the state post-conviction action concludes when the state court review of the post-conviction action is complete. Such an interpretation means that when, on appeal of a state post-conviction action, the state appellate court denies a rehearing petition or the time for filing such a rehearing request expires without a filing, the one-year statute of limitations resumes running. Under such a reading of the statute, the 90-day period for filing a petition for certiorari would not toll the statute of limitations nor would a convicted defendant’s timely filing of a certiorari petition in the United States Supreme Court.

This means that the lawyers representing a convicted state court defendant often may be forced to file the federal habeas corpus petition in federal court even though they or other attorneys representing the defendant are drafting a certiorari petition or awaiting the Supreme Court’s ruling on the already filed petition. This interpretation also suggests that, if certiorari was granted by the Supreme Court and the issue presented set for briefing and oral argument, the lawyers in question would undoubtedly have to continue to litigate the same question before the federal district court on the habeas petition.

Added to this litigation labyrinth is the recent decision of the U.S. Supreme Court interpreting the language of the AEDPA to determine the effect on the one-year statute of limitations of a timely filed federal habeas corpus petition that is dismissed without prejudice to refile a new habeas petition. ( Duncan v. Walker, 121 S. Ct. 2120 (2001).) This situation might arise because the federal district court concludes that the timely filed habeas petition was a "mixed petition," i.e., it contained both exhausted and unexhausted federal constitutional claims. A claim is exhausted when it was presented to the highest appropriate state court for a ruling.

The Duncan Court found that the AEDPA’s language did not permit the period of time in which the timely filed but now dismissed federal habeas petition was pending to be excluded from the one-year limitations statute. Posit a state court inmate, even one with a death sentence, who filed his or her federal habeas petition after only seven months of the one-year filing period had elapsed. If, after one-year of litigation in the federal district court, that inmate’s habeas petition is dismissed without prejudice to file anew, he or she would nevertheless be faced with an inability to file a timely new habeas petition. Although this petitioner had some five months of the one-year filing period remaining when the initial petition was filed, once the original petition is dismissed, the entire year it was in federal court counts against the statute of limitations. Thus, the state court defendant cannot now file a timely new federal habeas petition, even though the ruling dismissing the first petition specifically raised no bar to a new filing.

In all fairness, there are a multitude of unanswered questions concerning the scenario addressed in Duncan. Perhaps this petitioner would, upon filing the second petition, be given the benefit of "equitable tolling," based on the circumstances of his case. Under "equitable tolling," the time the previous petition was pending, although not tolled as a matter of law, would be tolled on equitable grounds.

Perhaps the Supreme Court will rule in the future that "dismissal without prejudice" to file again may not be used when such a dismissal will make the new filing untimely under the AEDPA as interpreted by Duncan. Instead, federal courts would "hold the proceedings in abeyance" while the petitioner returned to state court to present the "unexhausted claims" for final resolution.

All of this is litigated in a context where the state prisoner or death row inmate will not be entitled to a successor federal habeas corpus petition raising new claims not contained in the first petition except under the rarest conditions.

At this time when American skepticism concerning the workability of the death penalty has become more intense and widespread than any time in the last 25 years, these unresolved issues concerning a death row inmate’s access to federal habeas corpus review of his or her death sentence create an unnecessary drain on litigation resources and inject distracting procedural conundrums into already difficult litigation strategy decisions. Death penalty lawyers, fearful of finding their clients’ time for filing federal habeas petitions expired under constantly evolving interpretations of the AEDPA, are filing state and federal post-conviction actions earlier and earlier, without adequate factual and legal investigation, and even electing to forgo available procedural avenues of relief because the time spent in that litigation may not be excluded from the statute of limitations’ calculus.

In this context of confusion and doubt certainly Congress should consider reevaluating the AEDPA and amending its language to remove so many of the apparently unintended procedural pitfalls and Byzantine processes now revealed by both pragmatic application and judicial review. If Congress wants the American public to believe that federal habeas corpus review is still available for death row inmates as a final protection against executing the innocent and the condemned who received fundamentally unfair trials, such legislative action is essential. To do less at this point in history is to sanction the very real possibility that "too many death row inmates are being executed on technicalities."


J. Vincent Aprile II is a senior capital litigator with the Department of Public Advocacy in Frankfort, Kentucky, where he has been a state public defender for 28 years and served as the agency’s general counsel for 17 years (1982–99). He is also a contributing editor to Criminal Justice magazine and a member and former chair of its editorial board.

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