Evans v. Chavis – Oral Argument – November 09, 2005

Media for Evans v. Chavis

Audio Transcription for Opinion Announcement – January 10, 2006 in Evans v. Chavis

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John G. Roberts, Jr.:

We’ll hear argument next in Evans versus Chavis.

Ms. Chatman.

Catherine Baker Chatman:

Mr. Chief Justice, and may it please the Court–

The Ninth Circuit decision in the court below was wrong, for three reasons.

It adopted a rule that frustrates Congress’s intent to protect Federal Courts from hearing stale claims and to respect the finality of State Court convictions.

It does so by improperly and arbitrarily adopting a conclusive presumption that misunderstands or ignores State law and practice.

And it is inconsistent with this Court’s decision in Carey versus Saffold.

If the Federal Courts, on the other hand, complete their analysis of the Federal question of tolling the AEDPA statute of limitations by deciding whether a State petition was timely before granting tolling, it can properly dismiss more Federal petitions on statute of limitations grounds and can avoid litigating stale claims on the merits.

Any difficulties in doing so can be ameliorated by the limited nature of the State law inquiry and adoption of a 60-day presumption of timeliness.

Ruth Bader Ginsburg:

But that’s something… where would we… we would just pick that number, that–

Catherine Baker Chatman:

The 60 days?

Ruth Bader Ginsburg:

–Yes.

Catherine Baker Chatman:

Well, Justice Ginsburg, when California does look to timeliness in proceeding from one lower court to a higher court, then we see that it contemplates that a… that a litigant will proceed in 60 days or less, because… and the reason we have to turn to analogies is because nothing in California law requires the appellate courts in State habeas to look to that particular period of time between the lower court decision and proceeding to that court, because they’re courts of original jurisdiction.

Ruth Bader Ginsburg:

Because that’s a normal appeal period?

Catherine Baker Chatman:

So, they look at how long the prisoner proceeded from conviction to their court, as a whole.

But the reason that we need to figure out this period is because this Court, in Carey versus Saffold, has said that our system functions enough like an appellate system to bring those periods into the tolling provision.

So, when–

Anthony M. Kennedy:

–the… can’t the California courts adopt a… give us a 60-day rule, or a 30-day rule, or a 90-day rule?

Well, can’t–

Catherine Baker Chatman:

–we look–

Anthony M. Kennedy:

And if they don’t do it, why should we do it?

Catherine Baker Chatman:

–Up to this point, they have not done so.

And I think that is because, as I said, they are looking at the time from conviction.

How long did it take the prisoner to get to their court with their claims?

And how… and how long they take properly proceeding up the ladder through the courts is just one factor that they look at.

And they–

Stephen G. Breyer:

I don’t know how this came about.

I mean… I mean, I’m asking both sides the same question.

It’ll sound very favorable to you, but if you answer it just yes, because it’s favorable to you, I might learn, later, I was wrong, and you won’t have had a chance to answer.

So, I want your honest opinion on this.

Stephen G. Breyer:

I don’t know how this happened.

And I don’t know… did you ask for en banc?

Catherine Baker Chatman:

–I’m sorry, how the 3 year delay happened?

Stephen G. Breyer:

No.

I don’t know how the California Court could have read the opinion… which, of course, I wrote for the Court, so maybe I am reading things into it that weren’t there… but I don’t know how any judge could read that opinion we wrote and come to this conclusion.

I thought that it said, you know, on… that there are three issues… what’s the word “pending”?

Does the word “pending” apply to the time period between when the lower court decides a case and you appeal?

That’s typically 20 days or 30 days.

Catherine Baker Chatman:

Correct.

Stephen G. Breyer:

Are those 20 days or 30 days counted in the tolling period?

I thought part one clearly said the answer is yes.

Then we looked at California, and they don’t have the words 20 days> [“] or 30 days> [“].

They say “reasonable time”.

And then we said,

“Still applies, because 20 or 30 days. “

They don’t have a radically different rule; it’s a similar rule.

Then we come to part three, and it says, 45 days> [“].

There’s… oh, 4 and a half months, wasn’t it?

Catherine Baker Chatman:

Uh huh.

Stephen G. Breyer:

This isn’t just 20 or 30 days.

Catherine Baker Chatman:

Uh huh.

Stephen G. Breyer:

So, is it timely?

Catherine Baker Chatman:

Uh huh.

Stephen G. Breyer:

And, there, I thought the court said… I mean, I was reading it… say,

“Well, it’s hard to say, because there might have been excuses for the delay. “

What about the words that were written there, “on the merits”?

Catherine Baker Chatman:

And there was an equitable–

Stephen G. Breyer:

On–

Catherine Baker Chatman:

–tolling question.

Stephen G. Breyer:

–But that had nothing to–

Catherine Baker Chatman:

Right.

Stephen G. Breyer:

–do with the case.

The lack of diligence had nothing to do with this aspect of the case.

But, what about the words “on the merits”?

And there, what I think the court wrote is that the fact that it says “on the merits” doesn’t prove it… what… it doesn’t prove that it was timely.

Why?

And then I listed a bunch of reasons.

There are reasons.

Sometimes courts say “on the merits”, even though it’s delayed.

All right?

They say “on the merits”.

Or because they want to tell the prisoner or… there are a lot of reasons why, all of which are listed.

So, we send it back to see whether this 4-and-a-half-month delay, given the excuses, was still timely.

We… all right?

Catherine Baker Chatman:

Yes.

Stephen G. Breyer:

Now–

Catherine Baker Chatman:

Justice–

Stephen G. Breyer:

–we now get a case where it’s 3 years.

Catherine Baker Chatman:

–Uh huh.

Stephen G. Breyer:

And the court says,

“It’s timely, because they used the word’on the merits. “

“‘. “

But I thought… I said, in the opinion, I thought the court adopted that the words “on the merits” do not decide the matter.

Antonin Scalia:

Isn’t it–

Stephen G. Breyer:

Now, what do you–

Antonin Scalia:

–worse than that?

Stephen G. Breyer:

–do in those circumstances?

Catherine Baker Chatman:

Justice Breyer, I could not agree–

Stephen G. Breyer:

No, but did–

Catherine Baker Chatman:

–with you more.

Stephen G. Breyer:

–you ask for rehearing en banc?

Because any judge, including me, can make a mistake.

What did you do?

Catherine Baker Chatman:

We petitioned for certiorari in this Court.

Stephen G. Breyer:

And you didn’t ask for a hearing en banc.

Catherine Baker Chatman:

No, we did not.

Stephen G. Breyer:

Well, why, when you–

Antonin Scalia:

Would–

Stephen G. Breyer:

–why don’t you just go and ask the Ninth Circuit to say,

–get a fair… because any judge can make a mistake–

Catherine Baker Chatman:

The–

Stephen G. Breyer:

“Look, this is not… read the opinion, read what they said. “

“Correct it. “

Catherine Baker Chatman:

–This is not the first time that we have tried to take that approach with the Ninth Circuit on this issue.

They… on remand, in Saffold versus Carey, they made the same mistake, and the rehearing has got us nowhere… asking for a rehearing.

And so, we felt that in order to get this clarified as soon as possible, it seems futile to ask for rehearing when on the… when we had not been successful before.

Antonin Scalia:

–Yes.

Well this–

Catherine Baker Chatman:

This is, by the way–

Antonin Scalia:

–this case is different, actually, from the one that Justice Breyer put, because, in this case, the California Supreme Court didn’t say–

Catherine Baker Chatman:

–Uh huh.

Antonin Scalia:

–“# on the merits”.

It said nothing at all.

It just disposed of it.

So, the question presented is quite different.

Stephen G. Breyer:

It’s worse.

Antonin Scalia:

It’s whether… not whether it can be, nonetheless, timely when they say “on the merits”, but whether it can be, nonetheless, timely when they don’t say anything at all.

Catherine Baker Chatman:

But–

Antonin Scalia:

I would think it’s an a fortiori case, in other words.

Catherine Baker Chatman:

–And the Ninth Circuit is treating it as if it were the same sort of decision that was before this Court in Carey versus Saffold.

Catherine Baker Chatman:

It is a decision on the merits.

And they are reading that as excluding any other possible grounds that might have existed for the denial in that case.

Stephen G. Breyer:

You’re representing the attorney general of California, and you have a lot of litigation in the Ninth Circuit.

It’s… I mean, the other side’s going to answer on the merits, if they can.

And they’re in an awkward position here, I understand.

But I need to know what to… what do you think we should do?

I mean, here, we write an opinion, and they–

Catherine Baker Chatman:

Uh huh.

Stephen G. Breyer:

–it seems to perhaps, inadvertently or not… and the reason I turn to you is, judges are busy, they have huge dockets–

Catherine Baker Chatman:

Yes.

Stephen G. Breyer:

–And, often, unless it’s very clearly pointed out by the lawyers, or the lawyers take action, you get… waste everybody’s time and money.

Catherine Baker Chatman:

Uh huh.

Well, I think the answer is to instruct the Federal Courts that, when they’re undertaking this inquiry of whether an application is pending during the interval, a Federal question that has a State law component, then they must apply the State law to figure out if it’s timely.

And, you know, as this Court said in Carey the… versus Saffold… it’s a matter of whether it’s timely; it’s not a matter of the basis of the State Court decision.

And in the context of California, I think the answer is to adopt a presumption of 60 days, because that is the most analogous–

Ruth Bader Ginsburg:

In… even if, as he alleged, he was unable to do anything in–

Catherine Baker Chatman:

–Uh huh.

Ruth Bader Ginsburg:

–This is a layperson.

He said,

“I tripped in the intermediate appellate court, because I didn’t do any research. “

“And so, I wanted to do better, but they gave me a job where, during the hours that the library was open– “

Catherine Baker Chatman:

Uh huh.

Ruth Bader Ginsburg:

“# I had to be at work. ” “And that’s why it took me all this time. “

Catherine Baker Chatman:

Uh huh.

Ruth Bader Ginsburg:

Now, is that… suppose the prison locks down someone and say,

“You can’t go to the library. “

Catherine Baker Chatman:

This is an easy decision for the Federal Court, even on these facts.

Okay, this Petitioner has taken longer than 60 days, and he’s offered an explanation.

But if you look at his explanation, on its face, it’s completely inadequate to account for a 3-year delay, because he doesn’t take action to get… to get library access for an entire year after the Court of Appeals decision denying his application is issued.

Then he spends 3 months, quite correctly, going through the administrative procedures of the prison to get a job change.

Catherine Baker Chatman:

And he does, in fact, get a job change 3 months later… about 3 months later.

Then, he waits still more than another year before he files his petition in the California Supreme Court presenting essentially the same claims, same facts, same law.

Stephen G. Breyer:

So, in other words, he delays, after he gets the library access, for an extra year.

Catherine Baker Chatman:

Yes, he does.

Now, he–

Stephen G. Breyer:

Now, is there any excuse they’re making for that?

Because if you don’t tell me, they’re–

Catherine Baker Chatman:

–Later on–

Stephen G. Breyer:

–going to tell me.

Catherine Baker Chatman:

–later on, once he gets to Federal Court–

Stephen G. Breyer:

Yes.

Catherine Baker Chatman:

–he offers the explanation that the prison was on lockdowns.

There are several problems with that assertion; the first being, it wasn’t presented to the State Court, so it’s… it cannot cure his State untimeliness.

The second being that he doesn’t offer specific dates or explain how it prevented him from filing his petition.

And the third problem is that State prisons provide procedures during lockdowns to get library materials to prisoners.

John Paul Stevens:

Can I ask a rather probably sort of stupid question?

But I gather there are a large number of these cases disposed of by a postcard.

Would there be anything wrong if the California Supreme Court said,

“We’re going to have two postcards. “

“One says that the delay was unreasonable, denied. “

–and the other says there’s nothing to the merits denied… used two postcards… wouldn’t that solve all the problems?

Catherine Baker Chatman:

The problem with that is… certainly, it would solve things, but the problem with that is, it would require the… require the California courts to make both of those determinations in every case.

And, as it is now, they use a procedure much like–

John Paul Stevens:

But they could adopt a 60 day rule, or a 90 day rule, and then just, when they decided to not follow the rule, they’d put a check on… say,

“Well, we did look at the merits in this case. “

Catherine Baker Chatman:

–They could do that–

Antonin Scalia:

Under our current law, it wouldn’t make any difference, would it?

Because even if they sent the “on the merits” postcard, Carey versus Saffold says–

Catherine Baker Chatman:

–Correct.

Antonin Scalia:

–it doesn’t matter.

Catherine Baker Chatman:

That’s true.

And that is why I say they would have to make both determinations, because–

David H. Souter:

Well, may–

John G. Roberts, Jr.:

Well, it might–

David H. Souter:

–may I… no, go ahead.

John G. Roberts, Jr.:

–I was just going to say, it might matter if they had another postcard that said it’s untimely, and they didn’t send that.

That would be a whole different situation, right?

Catherine Baker Chatman:

–That’s true, but we are… we are engaging here in trying to tell the California State Courts how to dispose of these cases, which I am really not sure is an appropriate thing for us to do.

They’re–

David H. Souter:

Well, but–

Catherine Baker Chatman:

–using a–

David H. Souter:

–if we–

–if we decided it… it was at least appropriate to give a hint, aren’t we in a little bit better position than you suggested, in the light of Carey?

Catherine Baker Chatman:

–procedure–

David H. Souter:

Because in… is… correct me if I’m wrong, but I thought, in Carey, the State order was not merely that it was on the merits, but that it was on the merits and it was untimely.

In other words, it said A and B.

And we said, you know, “That’s ambiguous”, to start with, and then we went on and said,

“You know, sometimes “merits” don’t mean merits. “

But if the State were to revise its procedure and say,

“We’re either going to say A or we’re going to say B, and that’s our reason. “

and they said, “It’s on the merits” or “it’s untimely”, wouldn’t it make sense for us, even in the light of Carey, to say,

“Okay, we’ll accept that as the… as the State’s reason? “

Catherine Baker Chatman:

–If they were to do that.

But I don’t anticipate the State Courts adopting that practice, because it would double their work.

They would have to make both decisions, merits and untimeliness.

David H. Souter:

I don’t–

Catherine Baker Chatman:

It–

David H. Souter:

If they’re going to follow something like a prima facie 60 day rule, and it’s… it’s on day 65, all they’ve got to say is, “It’s untimely”.

–see why.

Antonin Scalia:

Well, in this–

Catherine Baker Chatman:

–But the–

Antonin Scalia:

–in this case, in order to determine it was untimely, they would have presumably had to have gone into the factual analysis of whether the prison was on lockdown, whether he delayed for a year after getting the materials, and all of that stuff.

So, it’s a lot easier for them, when the merits of it seem to them absolutely clear, to simply deny it on the merits and not reach the “timely” question.

Catherine Baker Chatman:

–And that–

Antonin Scalia:

But the “timely” question is still before Federal Courts.

That’s what we said in Carey versus Saffold.

So–

Catherine Baker Chatman:

–I agree.

And they–

Antonin Scalia:

–although they can avoid it, we can’t.

Catherine Baker Chatman:

–And that… and that is the way the State Courts are approaching these cases.

They, for the most part, will look first for a prima facie case, and in… much like the Federal Courts do in Federal habeas under Rule 4, where they scream for frivolous petitions that can be dismissed outright without asking for a response from the warden or instituting briefing, then they can deny those summarily.

And the reason why they cannot justify timeliness is because then the Ninth Circuit will interpret that as not reaching the merits, and we will have a problem of deference.

So, if they were to decide one explicitly, they’d have to decide the other, the way things stand now.

And I–

John Paul Stevens:

I–

Catherine Baker Chatman:

–as a–

John Paul Stevens:

–I must say, I don’t quite follow the… why couldn’t they simply say it’s untimely?

Wouldn’t that… that it… there was… it was not pending during this period, because it… 3 years elapsed, and that’s unreasonable.

Wouldn’t that end the case?

Catherine Baker Chatman:

–It would, but it’s not a State law question.

They don’t… whether it’s pending during that period is not a–

John Paul Stevens:

No, I understand–

Catherine Baker Chatman:

–State law–

John Paul Stevens:

–but whether–

Catherine Baker Chatman:

–question, because–

John Paul Stevens:

–it was a reasonable time to file is a State law question.

Catherine Baker Chatman:

–Whether he took a reasonable time from the lower… from time of conviction to their court is the only State law question–

John Paul Stevens:

Well, isn’t the–

Catherine Baker Chatman:

–because of the–

John Paul Stevens:

–Doesn’t the–

Catherine Baker Chatman:

–original–

John Paul Stevens:

–California Supreme Court sometimes decide that the time between the intermediate court’s decision and the filing in the California Supreme Court… don’t they ask whether that was reasonable?

Catherine Baker Chatman:

–I have–

John Paul Stevens:

Or they only relate it back to the day of the conviction?

Catherine Baker Chatman:

–I have only seen one case in California where they specifically addressed that particular interval because the Attorney General raised it, and that’s the Moss… in re Moss, which is cited in the red brief.

John Paul Stevens:

May I ask that, if you had a case in which the Attorney General raised the… say, this case, and yet… and say California Supreme Court wrote an opinion in which it said,

“Now, 3 years has gone by, but the prisoner has given us a very elaborate explanation. “

as Justice Ginsburg suggested,

“and we find that explanation sufficient; therefore, we conclude that, even though it was 3 years, it was a reasonable time; and, therefore, we’re going to address the merits. “

“And we now address the merits and say you lose. “

Now, in that case, would it be pending, for our purposes?

Catherine Baker Chatman:

Yes, because the State Court found it timely, and that would be–

Stephen G. Breyer:

It would?

I thought–

Catherine Baker Chatman:

–that would be–

Stephen G. Breyer:

–that was–

Catherine Baker Chatman:

–the end of–

Stephen G. Breyer:

–an open–

Catherine Baker Chatman:

–the matter.

Stephen G. Breyer:

–question, frankly.

I mean, I can’t imagine California would do this, but I guess if California did say that,

“The period of time between the time you lost in the District Court and the time you filed, in every other State, is 30 days, but, in California, it’s a reasonable time. “

“And what we mean by a 3 years, without any excuses. “

–I guess, then, maybe the dissent in Carey v. Saffold would have been right in respect to that.

Catherine Baker Chatman:

If–

Stephen G. Breyer:

It would have said that that isn’t pending under Federal law, whether California says it or not.

So, the role of the Federal law versus the State law, I thought we left open.

Catherine Baker Chatman:

–I think this Court, in Carey versus Saffold, and in Pace versus DiGuglielmo, has stressed the importance of deferring to State law determinations–

Stephen G. Breyer:

But you can’t–

Catherine Baker Chatman:

–State Court–

Stephen G. Breyer:

–defer to something–

Catherine Baker Chatman:

–determinations.

Stephen G. Breyer:

–under this statute, where Congress wrote the word “pending”.

And I wouldn’t have thought they did have in mind a–

Catherine Baker Chatman:

Uh huh.

Stephen G. Breyer:

–State that says,

“It’s pending, even though you have no excuse and didn’t file anything for 3 years, your appeal. “

Now, I haven’t heard that fully briefed and so forth, so I hesitate to express a final conclusion on it.

But it–

Catherine Baker Chatman:

Well, it’s–

Stephen G. Breyer:

–since it’s never going to come up, I don’t think, I don’t know I have to have a final conclusion.

Catherine Baker Chatman:

–I don’t think so. But it’s pending… it’s pending while… if it’s timely under State law.

And if the State Court has already spoken to State law, I don’t know that there’s a question left for the Federal Court.

I think… I think they say,

“Okay, this was timely, and, therefore, pending during the interval. “

But–

Sandra Day O’Connor:

Now, you want us to apply a presumption that a petition is timely if it’s filed within 60 days.

But California doesn’t apply such a presumption, does it?

Catherine Baker Chatman:

–No, it does–

Sandra Day O’Connor:

And–

Catherine Baker Chatman:

–not, but–

Sandra Day O’Connor:

–where do we get that?

I mean, where does that come from?

Catherine Baker Chatman:

–Where that comes from is, if you look to the closest analogous State procedures… say, direct appeal from a conviction… then you’re allowed 60 days to go to the next… to the appellate court.

Similarly, if the State appeals the grant of habeas relief… the State, unlike the defendant, can appeal… then the State gets 60 days.

So, when California thinks… when California quantifies the concept of reasonableness in the appellate context, they do so in terms of 60 days or less.

And I say “or less”, because State habeas is actually supposed to be a quicker process than the appellate process.

Sandra Day O’Connor:

Well, shouldn’t we leave it to California to adopt such a presumption?

Catherine Baker Chatman:

California’s not going to do that, because it’s not a State law question.

Catherine Baker Chatman:

It’s just not a State law question.

But it’s… I think it’s acceptable for a Federal Court to adopt a presumption to assist them in deciding a State law issue, much–

John G. Roberts, Jr.:

What–

Catherine Baker Chatman:

–the way.

John G. Roberts, Jr.:

–good would the… what good would the presumption do if it’s just a presumption?

Presumably, if it’s a presumption, the prisoner is–

Catherine Baker Chatman:

Uh huh.

John G. Roberts, Jr.:

“Well, here’s why you shouldn’t follow the presumption in my case. “

–going to say,

just as, if it looks like he’s waited a long time, he’s going to say,

“Well, here’s why that delay was reasonable. “

I don’t know that the presumption you’re proposing serves much of a purpose.

Catherine Baker Chatman:

The value of a 60-day presumption is that it saves the Federal Court from having to look at the State law time… of the timeliness in that particular case and–

John G. Roberts, Jr.:

No, it doesn’t–

Catherine Baker Chatman:

–it ought–

John G. Roberts, Jr.:

–not if the prisoner says,

“Here’s why you shouldn’t follow the presumption. “

Catherine Baker Chatman:

–Well, that’s true.

But if it… but if he files within 60 days, there’s no need to look further or consider his argument regarding timeliness.

And the other value in the 60-day–

Antonin Scalia:

Why phrase it as a presumption?

“We determine California law to be, unless we hear otherwise, having examined what it does in other situations, that 60 days is timely? “

Why not phrase it,

Catherine Baker Chatman:

–I think that would be perfectly fair.

Antonin Scalia:

It’s the same thing.

But I wouldn’t call it–

Stephen G. Breyer:

They are–

Antonin Scalia:

–a presumption.

Stephen G. Breyer:

–but that’s a–

Antonin Scalia:

And then–

Stephen G. Breyer:

–that’s–

Antonin Scalia:

–and then the… you know, the incarcerated individual can come forward with excuses and say that,

“California would make an exception to the 60 day rule for this. “

and we’re back where we were.

Catherine Baker Chatman:

Well, that would be fair, and it would accomplish the other thing that I offered the 60 day presumption to accomplish, is to offer a sort of safe harbor where the Petitioner knows that he gets tolling for 60 days, and need not file a protective petition.

David H. Souter:

Well, it would–

Catherine Baker Chatman:

So, it alleviates that problem.

David H. Souter:

–it would… it would be fair, but to call it a finding of California State law is a… would be a bit of a stretch, wouldn’t it?

I mean, you… you’ve made a perfectly good argument that it would be a sensible rule for California–

Catherine Baker Chatman:

Uh huh.

David H. Souter:

–to adopt, would not be sensible for us to adopt.

But I’d have a hard time saying that I could justify it as a statement of current California law, and I’m–

Catherine Baker Chatman:

Well–

David H. Souter:

–Am I missing something?

Catherine Baker Chatman:

–Well, Justice Souter, I think it works very well as a presumption adopted by the Federal Courts for ease of administrability and, you know, at the same time, reflecting State law.

David H. Souter:

Okay, the–

Catherine Baker Chatman:

But the–

David H. Souter:

–So you’re back to the presumption.

But–

Catherine Baker Chatman:

–Right.

But–

David H. Souter:

–but if–

Catherine Baker Chatman:

–but the one thing–

David H. Souter:

–if we’re going to go further and say,

“Oh, well, we find that that’s what the State law is, unless they tell us differently. “

that’s where I’m having trouble.

Catherine Baker Chatman:

–Well, it’s not very different from when the Federal Courts adopt a State statute of limitations–

David H. Souter:

Yes, but we–

Catherine Baker Chatman:

–for a Federal–

David H. Souter:

–know what it–

Catherine Baker Chatman:

–cause of action.

David H. Souter:

–we know what it is.

There’s a State statute of limitations.

It says–

Catherine Baker Chatman:

Uh huh.

David H. Souter:

–3 years.

Catherine Baker Chatman:

Well–

David H. Souter:

We don’t have anything like that here.

Catherine Baker Chatman:

–By analogy, you know that the period of time for seeking direct appeal is 60 days.

So, it is… it’s deciding something by analogy, in much the same way the Federal Courts do for a Federal cause of action that has no statute of limitations.

Stephen G. Breyer:

–How many cases are there on habeas in California every year, about?

Catherine Baker Chatman:

Oh.

Stephen G. Breyer:

No, I mean about.

Just give me the rough ballpark.

Catherine Baker Chatman:

I would… there are about 8,000, I would say.

Stephen G. Breyer:

All right.

So, the… in the Supreme Court.

Catherine Baker Chatman:

No.

In the Supreme Court, I would say it is more like about 2500.

Stephen G. Breyer:

So, there are 25… so there are several thousand cases every year.

Catherine Baker Chatman:

Thousands.

Stephen G. Breyer:

All right.

Thousands.

Catherine Baker Chatman:

Thousands.

Stephen G. Breyer:

Okay.

So, I don’t know what I’m doing with California procedure when I pass a… pass a law, is what it would be.

Write a rule, write a presumption.

I have no idea what I’m doing there.

They’ve worked out a system.

But I don’t… why doesn’t it work just to say to the lower courts, “Do your job”?

Stephen G. Breyer:

What we said… and maybe it wasn’t expressed clearly… maybe…

“Courts, look, it says “reasonable time”? “

“Now, reasonable time, in every other State is 30 days, sometimes 20 days. “

Catherine Baker Chatman:

Uh huh.

Stephen G. Breyer:

“Sometimes the most, 60 days. “

“So, look and see if it was filed within a reasonable time. “

“That’s all. “

“And if California passes… some specific thing says something special about it, of course, pay attention to that. “

What’s wrong with that?

They just would do it like they do any other thing of deciding what happens in–

Catherine Baker Chatman:

That is… that is exactly what I would ask this Court to do.

Exactly… is to… Federal Courts take on this Federal question of tolling and complete the analysis by applying State law to find out if these petitions were timely filed in merit tolling.

Antonin Scalia:

Is “reasonable time” the issue, or is it what California would consider a “reasonable time”?

I mean, that’s the problem.

Stephen G. Breyer:

–Yes, that is the problem.

Antonin Scalia:

We’re not–

Catherine Baker Chatman:

It–

Antonin Scalia:

If California says a year is a reasonable time, that would be the reasonable time at issue, wouldn’t it?

–making up, for ourselves, what’s a reasonable time.

Catherine Baker Chatman:

–I don’t think it would be, in light of–

Antonin Scalia:

No?

Catherine Baker Chatman:

–in light of the analogous State law that you only get 60 days to–

Antonin Scalia:

No, but if–

Catherine Baker Chatman:

–appeal, but–

Antonin Scalia:

–the California Supreme Court says,

“Despite all of these, in this kind of a situation, we think a year is a reasonable time– “

Catherine Baker Chatman:

–But they–

Antonin Scalia:

–you–

Catherine Baker Chatman:

–haven’t said so.

The… of course, you–

Antonin Scalia:

–I know, but if they said so–

Catherine Baker Chatman:

–If they said so–

Antonin Scalia:

–that would be binding–

Catherine Baker Chatman:

–if they had–

Antonin Scalia:

–on us, wouldn’t it?

Catherine Baker Chatman:

–If they said so, then we’d have State law, and we would have to apply that.

But we don’t.

John G. Roberts, Jr.:

Why would you have to apply that?

It’s a Federal question whether the claim is pending or not during that whole period, right?

Catherine Baker Chatman:

Of… certainly it is.

Certainly it is.

But, at the end of the analysis, there is a little bit of State law analysis.

It has to be timely under State law.

And if California Supreme Court tells us more about what’s timely under their reasonableness standard, then I think you would have to take that into account.

But the concept of reasonableness and due diligence that are employed in States… in California’s timeliness standards, I don’t think “reasonableness” and “due diligence” mean anything different at the Federal courthouse in Sacramento than they do at the State Court of Appeal five blocks away, or in this Court.

It’s… these are common terms that are used in the law all the time.

John Paul Stevens:

May I ask this question?

I think our opinion the last time around suggested that possibility would certify into the California–

Catherine Baker Chatman:

Uh huh.

John Paul Stevens:

–Supreme Court, and that was not done.

Was any other effort made that you can tell us about?

Maybe you should, off the record, but to try and get the guidance of the California Supreme Court on the… on the State law problem here?

Has anybody suggested to the court they might adopt a rule or a different practice or anything like that?

Catherine Baker Chatman:

Your Honor, yes, we have suggested that.

The California Supreme Court… and, as you said, this is not within the record… the California… but, if I may, the California Supreme Court has declined to adopt a rule.

They think it’s a political question that has to be decided by the Legislature.

And the Legislature, to date, has not adopted a rule or… not a rule, a statute of limitations for these cases.

And I have to say that, if they undertook that, then there would be certain costs to doing that, as well.

You know, we would… we would… we would ease this issue, but we would confront the cost of considerable litigation, I would imagine, if we adopted a new statute for collateral relief in California.

So, there’s a cost to doing that, that might outweigh the benefits of–

John Paul Stevens:

Thank you.

Catherine Baker Chatman:

–clarifying this issue.

If I may reserve my time?

John G. Roberts, Jr.:

Thank you, Counsel.

Mr. Stris.

Peter K. Stris:

Mr. Chief Justice, and may it please the Court–

In light of Justice Breyer’s questions, I feel compelled to begin with a brief explanation of why this case is a necessary consequence of Saffold.

And, although it wasn’t my initial intention to speak plainly, what I would suggest is that the problem is not the Ninth Circuit’s decision in this case, but, rather, California’s timeliness standards.

And the problem that’s presented by this case is one of Federal line drawing.

And it presents serious federalism, comity, and fairness concerns.

And if we could step back from the facts of this case for a moment… and I will discuss them… I think it… I hope, at least, it will become clear that the Ninth Circuit, in light of what it’s dealing with in California, adopted the only sensible rule.

So, the place to begin in answering some of your questions, Justice Breyer, is with California’s timeliness standards.

And to give some background, I would start with the principle that was articulated in the Warden’s brief and that the California Supreme Court has articulated, which is that California does enforce its timeliness standards.

It’s usually done by… in the summary denial context, by citing to In re Swain or In re Robbins–

Anthony M. Kennedy:

I missed it.

You said the problem is, California doesn’t “support” or “import”?

I just didn’t–

Peter K. Stris:

–Oh, I–

Anthony M. Kennedy:

–hear your word.

Peter K. Stris:

–apologize.

Anthony M. Kennedy:

I… the… I just didn’t hear what you said.

Peter K. Stris:

What I had said is that California does enforce it’s–

Anthony M. Kennedy:

Enforce.

Peter K. Stris:

And the way they customarily do that–

–timeliness standards.

Sandra Day O’Connor:

And what are those standards, please?

Peter K. Stris:

–Okay.

The standards are that a prisoner must file within a reasonable time.

And that requires a two part inquiry, Justice O’Connor.

The first part is, Was there substantial delay?

Peter K. Stris:

It’s determined based upon a set standard, when the delay begins.

But California’s never articulated any standards for what period of time constitutes “substantial”.

That’s the first problem.

It’s essentially an ad hoc determination that’s made by individual California Courts.

And that’s why former Justice Brown described that as “an abstraction”, and former Justice Moss described it as

“vague and indeterminate at its very core. “

But that’s what the Ninth Circuit is dealing with when it reviews these cases.

So, to put it context for a moment, the way the State Courts do enforce this on a case by case basis, to be practical, is, the State Supreme Court often summarily dismisses cases on procedural bars, including timeliness.

And, to give you some statistics from the Warden’s brief, in 2004 there were 1,223 unexplained summary denials… in other words, just denied… and there were 1,174 denials with a citation to a case.

And this is significant, because this means that, in about half of the cases in 2004 that went to the California Supreme Court, they enforced one of their procedural bars, and, in many of them, it was timeliness.

Antonin Scalia:

Wait.

Peter K. Stris:

I’m not sure… I’m not sure I follow the–

Antonin Scalia:

A case that was a procedural bar case?

Well, you–

Peter K. Stris:

–question, Justice Scalia.

Antonin Scalia:

–you could summarily deny and cite a case that showed you were denying on the merits.

Peter K. Stris:

Oh.

What I… what I was suggesting is that there were 1,174 cases that were procedural bar cases, where it said–

Antonin Scalia:

Where they cited a procedural bar case.

Peter K. Stris:

–That’s correct.

Antonin Scalia:

All right.

Peter K. Stris:

It would say, “Denied, In re Swain”, meaning denied for being untimely.

As opposed, Justice Scalia, to the 1,223 cases that were unexplained.

Anthony M. Kennedy:

And this could be–

Stephen G. Breyer:

But, now, maybe I’m–

Anthony M. Kennedy:

–just one point, if I may, Justice Breyer… those are the California Supreme Court or California appellate court?

Peter K. Stris:

That’s the California Supreme Court.

Anthony M. Kennedy:

Thank you.

Peter K. Stris:

Okay.

Stephen G. Breyer:

–So, the difficulty of looking to that, which may be a good difficulty… I mean, that is a serious problem, but I thought what we wrote in the case… see, there are two problems here.

Stephen G. Breyer:

First, which was bothering me, had to do with our Court’s relation to the Ninth Circuit, which may be simple and… as far as legally is concerned… but I’m not sure about it.

The other, which is much more interesting, is what you’re talking about.

All right, now, on the first one, I read the words.

It says the words “on the merits”.

The Ninth Circuit thought those three words meant that the California Supreme Court could not have considered the petition too late, for, after all, it decided it on the merits, just as with the cite.

Now, whether these words are right or wrong that follow, that’s what we wrote.

The next words were,

“There are many plausible answers to this question. “

Sometimes, a court addresses the merits of a claim that it thought was presented in an untimely way.

Why?

Because they don’t present any difficulty, and the timeliness issue does, or because it wants to give the reviewing court alternative grounds for decision, or maybe it just wants to show the prisoner we thought about the claim on the merits.

He, after all, doesn’t have a lawyer.

He gets a postcard.

That helps him.

So, there are a lot of reasons.

And it says, “Conclusion”.

Given the variety of reasons why they might have put the words “on the merits”, the fact that they are there, those words cannot, by themselves, show that the petition was timely.

So, then I read what they wrote.

What they wrote is,

“When the California Court denies a habeas petition without comment or citation, we have long treated the denial as a decision on the merits. “

Okay?

And then it cites a pre Carey case.

“Therefore, the summary denial was on the merits, and the petition was not dismissed as untimely. “

citing two pre Carey cases.

Now, I don’t see how, since I just said the words

“on the merits do not end the issue. “

–here, the words weren’t even there, but they say,

“We’re treating it as if they were, and that ends the issue. “

So, what do we do about that?

Then the next question, once I figure that one out, is, What do we do about the issue you’re raising, which is quite important and interesting and so forth?

Peter K. Stris:

Okay.

Well, as to the first question, the explanation that you just provided clearly requires the Federal Courts, when there’s some indication from the State Court that it might have been untimely, to look into it.

And that was the very problem with what the Ninth Circuit did in that case.

It said

“on the merits and for lack of diligence. “

So, to presume that that was just on the merits, that’s flatly wrong.

You’d need to do some further investigation.

In light of the context of what’s happening in California, however, when the State Court says nothing, there has to be some process by which the Federal Court can make a decision as to what that means, because if, in fact, in that case it was denied no the merits and the State Court thought it was timely, it would be extremely invasive for the Federal Court to rereview the case, potentially come to a different conclusion, and, we would suggest, dramatically alter the landscape of how prisoners exhaust their remedies in California, because now you’re developing a Federal body of law that may be very different in deciding what’s substantial and what’s reasonable than California did.

And so, what the Ninth Circuit, I believe, did in this case was look to context and come up with the presumption that was most reasonable in light of what’s going on.

So, the first thing that is relevant, from a–

Antonin Scalia:

Why is that the most reasonable presumption?

–and where that issue is not absolutely clear, and the… and the merits issue is absolutely clear, it just… it just denies?

Why isn’t the most reasonable presumption that the California Court denies, for untimeliness, wherever that issue is absolutely clear–

Peter K. Stris:

–The–

–The answer… pardon me–

Antonin Scalia:

It doesn’t want to say “denied on the merits”, because that would suggest that it was timely.

Peter K. Stris:

–The answer, I would suggest, Justice Scalia, requires looking to California practice.

And where I would start is with the California Supreme Court’s decision in In re Sanders.

And in In re Sanders, the Court made clear that after the Supreme Court adopted their policies in 1989 regarding certain presumptions in capital cases, and after the seminal In re Clark case in 1993, which asserted… rather, articulated California’s timeliness standards, most petitions… and these are the California Supreme Court’s words… “Most petitions are timely filed”.

So, with that backdrop and the fact that half of the California Supreme Court’s cases are being denied with a case citation, it’s reasonable to conclude that the unexplained denials are not necessarily untimely.

Now, I would add to that–

Antonin Scalia:

I don’t know what it… 51 percent.

I mean, among those that you don’t know whether it was the merits or not, there could be a lot of ones where the timeliness is simply not decided upon.

Peter K. Stris:

–It’s certainly the case, Justice Scalia, that the presumptions the Ninth Circuit adopted could permit cases that even the California State Courts would consider to be untimely–

Stephen G. Breyer:

Well, we could work with that.

Now, that’s, sort of, helpful, because if they say “most are timely filed”, then the next question would be,

“All right, what period of time is it? “

Peter K. Stris:

–Well, that’s the–

Stephen G. Breyer:

You’d have to get some professor to go through these cases, and they could… they could figure out how long it is.

What do you think it is, from your experience?

Peter K. Stris:

–I can’t really answer that, and that’s at the heart of–

Stephen G. Breyer:

But, I mean, is it more like a month, or is it more like 3 years?

Peter K. Stris:

–Well, the reason I would suggest that… and answering that is not necessarily appropriate or helpful in resolving the question… is because of the series of cases that we quoted in footnote 15 of our brief.

In certain instances, the California Courts have found 3 and a half years, 1 and a half years, 2 years to be reasonable.

Now, that doesn’t mean–

Stephen G. Breyer:

Because?

Peter K. Stris:

–In one instance, it was because of attorney abandonment.

In other cases, it was because the prisoner was indigent.

Stephen G. Breyer:

So, there’s a special reason.

In your case, is there really a year that isn’t explained at all?

Peter K. Stris:

Oh, I think it would apply to our case, as well.

Stephen G. Breyer:

Because?

Peter K. Stris:

In our case, the first 15 months–

Stephen G. Breyer:

No, forget that.

The library, I’ll give you.

What’s the rest?

Peter K. Stris:

–After that, our client was effectively on lockdown and had no access whatsoever to the library.

Now, this presents the burden problem with doing any sort of independent determination.

The Attorney General suggested, in the District Court, that there was a paging system in place whereby prisoners who are on lockdown could get access to the library.

There was never any suggestion in the District Court on the part of the Attorney General that the lockdown didn’t exist.

And the Attorney General, and not my client, would have access to those records.

Stephen G. Breyer:

But… well, did your… did your client file an affidavit or something saying he didn’t have access to the library during the whole period of 3 years?

Peter K. Stris:

I wouldn’t call it an affidavit, but it was… he filed an opposition to the motion to dismiss.

Stephen G. Breyer:

Well–

Peter K. Stris:

And–

Stephen G. Breyer:

–is there anything in the record that says, during the year after they said,

“We’ll change your job so you can get access to the library. “

that he didn’t have access to the library?

Peter K. Stris:

–Yes.

I… well, I… he didn’t talk about not having access to the library.

Peter K. Stris:

It’s implicit, if you look at the Joint Appendix at–

Stephen G. Breyer:

Well, all right, so what’s his reason for saying that,

“Last year, I was not able to file a petition in California Supreme Court? “

Peter K. Stris:

–That he had had… had access to nothing.

In other words, he didn’t say, “I didn’t have access”–

Stephen G. Breyer:

So, what does it say?

What does he say?

Go ahead.

Peter K. Stris:

–Well, it would be on the Joint Appendix, pages 38 and 39, where he describes the lockdown. And, you know, I haven’t looked at it recently, but my understanding is that he was suggesting that he had had access to nothing, including the prison library.

And the Attorney General suggests that there was a paging system, but the documentary evidence that the Attorney General puts into the record, which is on pages 68… 67… no, pardon me, 88 through 96… is a prison manual that’s dated 2000.

Now, it says it’s amended.

But my client takes the position that this wasn’t in the place at his prison at that time, and that would require a–

Antonin Scalia:

Well–

Peter K. Stris:

–evidentiary hearing–

Antonin Scalia:

–the burden–

Peter K. Stris:

–to determine–

Antonin Scalia:

–for that one is on him.

I mean, if you say the burden is on the State to come up with a… you know, showing that there was such a system, they came up with it.

And you say,

“The system may have been amended. “

Well, if it has been amended, there the burden is on you.

Peter K. Stris:

–Of course.

But–

Antonin Scalia:

I mean–

Peter K. Stris:

–the burden–

Antonin Scalia:

–well–

Peter K. Stris:

–Pardon me.

The burden on him would be in the context of an evidentiary hearing, which never took place.

The District Court in this case didn’t reach that issue, because they found that statutory tolling–

Stephen G. Breyer:

Now, the–

Peter K. Stris:

–wasn’t available.

Stephen G. Breyer:

–the next thing, what he actually says here, is that the C facility where he was confined was put into lockdown clearly into February 1997.

And this is all after he got access.

Then it remained quiet and lockdown free until August 11th, 1997.

So, that seems six months, on the most generous interpretation–

Peter K. Stris:

But that–

Stephen G. Breyer:

–where he’s not in lockdown, and he has access to the library.

Peter K. Stris:

–But that illustrates the very–

Stephen G. Breyer:

About six months.

Peter K. Stris:

–That’s correct, Justice Breyer.

And that illustrates the very problem with this case, which is that in cases where there is 90 days, 2 months, 4 months, the very difficult questions that a Federal Court would normally look to State law, if it was determinant, to apply, California is giving no guidance.

And our case falls within that once you look to the particular explanations that our client put forward.

And so, we would suggest that if there is a concern on the part of the Court about certain cases getting through and essentially allowing prisoners to abuse the writ, that this Court will use its equitable discretion to look at individual cases and to decide,

“Hey, is this a situation where the behavior is dilatory? “

“Is this a situation where the behavior is abusive? “

And that would restrict the number of cases where Federal Courts would need to engage in a factual inquiry.

The alternative is adopting a presumption, that the Attorney General suggested, that the California Courts have flatly rejected.

That presumption has been adopted… has been imported from the direct appeal context.

It has no significance in California habeas law.

In the direct appeal context, prisoners have the right to counsel.

In the habeas context, they don’t, except in capital cases.

And, unsurprisingly… pardon me… unsurprisingly, the California Supreme Court has adopted a presumption of 90 days, in the capital context.

So, in the… in the noncapital cases, like my client’s, where individuals have no incentive to delay… my client has been up for parole twice already, he has no incentive to delay the habeas process… and where people like Mr. Chavis think that they’re, in good faith, complying… and it’s not just an issue of excuse… and this goes back to a… to a question that Justice O’Connor asked earlier… there are specific policy reasons why the State of California has adopted the standard that it has.

They’ve articulated–

John Paul Stevens:

May I just interrupt?

The 90-day presumption in capital cases, that is that if it’s within 90 days, it’s reasonable.

I want to be sure that I get one thing straight.

Does it also presume that it’s a… more than 90 days, it’s unreasonable?

Peter K. Stris:

–It presumes that if it’s within 90 days, it’s timely.

John Paul Stevens:

Right.

Peter K. Stris:

And then you engage in the inquiry.

But that’s significant, Justice Stevens, because these individuals are represented by counsel.

John Paul Stevens:

No, I understand.

But do they adopt the converse?

If it’s more than 90 days, is it presumed to be untimely?

Peter K. Stris:

No, they do not.

And they’ve flatly rejected that and found cases where there’s… several years’ delay, even in the capital context, to be reasonable.

But–

John Paul Stevens:

Well, I could see how they could overcome a presumption that way, but there’s not even a presumption that over 90 days is unreasonable.

Peter K. Stris:

–That is correct.

Antonin Scalia:

–There isn’t.

You–

Peter K. Stris:

There is not.

Antonin Scalia:

–You mean if you go in and you say, 90 days, and you bring in no evidence whatever of any excuse for being over 90 days, you’re telling me that California Supreme Court would accept it?

Peter K. Stris:

No, that’s not true.

The–

Antonin Scalia:

Well, then–

Peter K. Stris:

–the–

Antonin Scalia:

–then it is a presumption–

Peter K. Stris:

–That’s correct.

Antonin Scalia:

–that if it’s over 90 days, unless you have a reason, it’s untimely.

Peter K. Stris:

The burden shifts the prisoner to produce some evidence.

I didn’t understand that to be–

Stephen G. Breyer:

So, here we have 180 days… 180 days, twice 90… with no excuse at all presented.

Peter K. Stris:

–In the noncapital context.

And it’s very… it’s very different, because the California State Courts are articulating particularly… particular policy reasons for noncapital prisoners to delay.

One that they’re articulated is a desire to avoid the piecemeal presentation of claims.

And this is particular to California’s original writ system.

You can have a functional appeal, but, because it’s also an original writ, you… if you have an additional claim that’s legitimate, you need to add it in that claim.

Sandra Day O’Connor:

But once it’s–

Peter K. Stris:

And–

Sandra Day O’Connor:

–in the Federal habeas context, the AEDPA law suggests there’s a great premium paid… at stake for promptly resolving these things.

What do we do about that?

This is in the Federal court system now.

Peter K. Stris:

–If it were the case… and there’s no evidence on the record to suggest this… that a substantial number of cases were going to start coming through California with massive delays, and this Court was going to be forced to provide statutory tolling, that would be a problem.

But there’s no evidence to suggest that.

And that ties back to–

Sandra Day O’Connor:

Well, what would we do in that situation?

Peter K. Stris:

–If that–

Sandra Day O’Connor:

If it’s–

Peter K. Stris:

–started happening?

Sandra Day O’Connor:

–open to the Federal Courts.

Peter K. Stris:

If that started happening, I think you, in this Court, would do nothing.

I think that Congress would see what was going on, and they’d amend the statute, because that’s clearly not what they intended.

But that’s not this case.

Ruth Bader Ginsburg:

Amend just for California, when the system is working fine, all the other States that do have the timelines?

Peter K. Stris:

It doesn’t suggest changing it for California; it suggests changing the language.

I don’t think they would do that, Justice Ginsburg.

But there’s a proposal that I’m aware of, already, to change the specific language of 2244(d)(2), and it was made by a congressman in California.

But that hasn’t happened.

Ruth Bader Ginsburg:

To do what?

Peter K. Stris:

I believe it replaces the word “pending” with some replacement.

Ruth Bader Ginsburg:

What would it say?

Peter K. Stris:

And so, it essentially changes the tolling provision to account for this problem.

But that hasn’t happened yet.

Right now, we have a congressional statute that, on its face, does not require the Federal Courts–

Stephen G. Breyer:

What about this?

You might lose under this, but it… see, so you say… look, in every other State, the time for appealing from an appeals court to the State Supreme Court, asking them, is 20 days, normally, or sometimes 30.

So, if the Ninth Circuit gets a case in which it was longer than 30 days, then, irrespective of whether they say “on the merits”, whether they cite a case, whether they don’t say anything and just have a postcard, what the Ninth Circuit should assume that they’ve done is consider it untimely, in the absence of the kind of excuse that the California Courts might accept as an excuse.

So, then they’ll look into that.

Stephen G. Breyer:

And if California, in the future, wants something different… which I’d be surprised… they will say that their system means that a 3 year delay, or whatever it is, is actually timely.

But, in the absence of some reason to think that, why not use the words, which would give you a chance to go back, and you could say,

“This is not a case of total lack of excuse. “

“There is excuse of the kind that California would accept. “

Peter K. Stris:

–Well, I think the problem with that sort of rule, Justice Breyer, is that it risks error, because California’s standard is to indeterminate, and at very little… it gets very little benefit.

Because there’s… there is no real harm… there’s no real harm to the Federal interest here just because we have a conclusive presumption.

The very nature of a conclusive presumption is that sometimes there will be cases that don’t fit the presumption.

But, on this record, and on anything I’ve seen from my review of California procedure, there’s nothing to suggest that a… the Federal interest in avoiding substantial delays is compromised by the specific rule that the Ninth Circuit has adopted.

And the Ninth Circuit has adopted a–

John G. Roberts, Jr.:

Well, how can you… how can you say that?

We do have a Federal rule and a limitation, and (d)(2) is an exception for time that it’s pending before the State Courts.

And if the State Courts aren’t going to bother to tell us whether something’s timely or not, or pending, giving them a blank check does undermine the Federal interest behind the 1 year limitation period.

Peter K. Stris:

–I would say two things about that, Mr. Chief Justice.

The first thing is, I would strongly resist your characterization that the State Court is saying nothing.

I think that, in most cases, they are saying something, and that, in the cases that involve postcard denials, many of them, the court is saying that they’re timely, and, in others, those are the hard questions.

So, I would restrict your characterization to the fact that California is not saying something in some cases.

Now, because the Federal statute necessarily imports a State standard, that’s the very problem with the statute.

I can conceive of many instances where–

John G. Roberts, Jr.:

Why do you think the Federal statute necessarily imports a State standard?

It says that the State postconviction proceeding must be pending.

And California presents an unusual situation, but we interpret that pending is a question of Federal law.

It’s not a State standard.

Peter K. Stris:

–That’s true, Mr. Chief Justice.

But if you took that to its logical conclusion, then, when State Courts made errors… they didn’t see that a case was properly filed, they just missed it… the Federal Court would go in and review.

Or in a case where they did claim the reverse, the Federal Court could say,

“No, there was clear error. “

But this Court has rejected that in Saffold.

It’s rejected it in Pace.

And… because that is informed by the very view that the tolling provision was included to encourage one round of State exhaustion free of Federal interference.

Stephen G. Breyer:

All right, but we decided… I’d like you to suggest something to… from putting yourself in the… in an imaginary position.

Stephen G. Breyer:

Carey versus Saffold did have a dissent.

And four Justices joined it.

And let’s imagine that, when I read the dissent, I see the… and then I look at this case… I see imaginary words on the top of the dissent, which are, “We told you so”.

[Laughter]

And… now, therefore, think not of if you were arguing Carey v. Saffold afresh, but think of the words that are actually written there.

And now think of what happened here.

And now propose something, please, that will, in fact, deal with the problem that this case seems to present.

Peter K. Stris:

Well, I would be lying, Justice Breyer, if I didn’t say that I haven’t thought about that.

And the problem is that the rule announced in Saffold isn’t the right rule.

It’s trying to deal with a problem that’s been created by the California State Courts.

And so, the solution that the Ninth Circuit has adopted… that’s our proposal.

We essentially think that it has a minimal harm to Federal interests, because maybe certain cases will get in that Congress didn’t intend, but if you don’t adopt it, there’s no alternative.

You can’t certify the question.

In California, you can’t certify to the Court of Appeal.

You can’t certify from a District Court. So, if the California State Courts aren’t going to change, it’s not incumbent upon this Court to read the statute differently than the proper interpretation.

And I concede the arguments that were made in the dissenting opinion in Saffold are very interesting, and they don’t compel, in my opinion, a different interpretation of the statute; they recognize the difficulty that the statute presents.

And it presents that difficulty because it does incorporate, in some measure, a State standard, and because there’s one State out there, California, that’s doing something that’s very difficult to deal with.

John Paul Stevens:

May I ask just two questions about California?

Is the problem we’re discussing, with these long delays, primarily in the application the third range, the application of the California Supreme Court, as opposed to lower courts?

Peter K. Stris:

Well, I wouldn’t characterize it as a problem, because, like I said before, I don’t think that–

John Paul Stevens:

But is the condition, that there is the long delay, that primarily occurs in the… in the application of State Supreme Court?

Is it–

Peter K. Stris:

–I have no… I’ve seen no specific evidence to be able to answer that with any citation, but my understanding, Justice Stevens, is that that makes sense, because it’s the last process that the prisoner is going to be able to engage in, then they’ll have to go to the Federal Circuit.

John Paul Stevens:

–Then my second question is, Have we decided, or is it a matter of common practice in California, that the application to the California Supreme Court is necessary in order to complete the exhaustion?

Peter K. Stris:

It is… it is necessary, in my opinion.

I don’t know if the State… if this Court has ever–

John Paul Stevens:

We’ve held it–

Peter K. Stris:

–decided that.

John Paul Stevens:

–in cases where there’s direct review, but this is a different sort of animal that you have in California.

Peter K. Stris:

But once you start from the premise that these are functional appeals, which they are, I don’t see how you could read AEDPA any other way.

Peter K. Stris:

I mean, AEDPA says that if there’s an available method to challenge and… a petition, whether it be by review or original writ, to the California Supreme Court would be available.

So, you could be sure that if prisoners–

John Paul Stevens:

I think it is–

Peter K. Stris:

–didn’t file–

John Paul Stevens:

–required.

Peter K. Stris:

–Yes.

If they didn’t file, they’d get kicked out of Federal Court.

Antonin Scalia:

There’s one aspect of Saffold that you haven’t addressed.

We not only said what we said about they’re saying CA9 case from 2001.

And we cited that as an example of how the Ninth Circuit rule, quote,

“risks the tolling of the Federal limitations period even when it is highly likely that the prisoner failed to seek timely review in the State appellate courts. “

close quote.

Peter K. Stris:

I would say two things about that.

Antonin Scalia:

How could the Ninth Circuit here simply have ignored that criticism of exactly what they did here?

Peter K. Stris:

Well, I don’t believe they ignored it, Justice Scalia.

And if you look at the Welch case that you’re referring to, on en banc rehearing the en banc panel reached a very different result.

They didn’t reach the issue of timeliness, for the reasons I described, but they determined that that was not a functional appeal, because–

Antonin Scalia:

But we–

Peter K. Stris:

–the claim–

Antonin Scalia:

–we didn’t cite the en banc decision.

We cited the panel decision–

Peter K. Stris:

–The en banc–

Antonin Scalia:

–didn’t we?

Peter K. Stris:

–decision occurred after your–

Antonin Scalia:

After.

Peter K. Stris:

–case.

Antonin Scalia:

But the point is, we criticized the panel decision in Welch, which did exactly what this panel did here.

Peter K. Stris:

I don’t agree with that characterization, Justice Scalia.

I believe that case was included to illustrate that this Court thought that was probably too long, and that not looking at all to what’s happening in the California system risks that.

I don’t think anything was at least necessary to the holding in Saffold–

Antonin Scalia:

We cited–

Peter K. Stris:

–because it–

Antonin Scalia:

–it for the proposition that it… as an example of how the Ninth Circuit rule, quote,

“risks the tolling of the Federal limitations period even when it is highly likely that the prisoner failed to seek timely review in the State appellate courts. “

That’s what we cited.

Peter K. Stris:

–That is true.

And in the context of a case like Saffold, where there’s a reference to lack of diligence, that risk is too great.

I’m not going to get up here and suggest that there’s no risk to a conclusive presumption that some cases are going to make it into Federal Court that Congress didn’t intend.

But it’s a balancing that’s inherent in the notion of federalism.

There is a risk that, by not reviewing clear statements by the California State Court, that cases get in that shouldn’t.

A case could not have been properly filed, and the State Court didn’t find it.

But, in Saffold and in Pace, this Court announced the principle that once the State Court decides, that’s the end of the matter.

And I guess, in summation, what I suggest is that atmospherically this case presents a difficult problem.

The Ninth Circuit is involved.

There is a five four decision in Saffold.

We recognize those things.

However, there is no easy solution.

The Ninth Circuit has adopted a rule that balances the very interest in federalism that the tolling provision was intended to preserve, and there’s no suggestion that some corresponding Federal interest is compromised.

And, in fact, if the Federal Courts are required to review these cases, they’ll be required to do it in 60 days, in 70 days, in 80 days, and, if they make a mistake, and they find a case to be untimely that the California Court didn’t, will deprive first Federal habeas, one Congress didn’t intend.

That’s fundamentally contrary to the purpose of AEDPA.

John G. Roberts, Jr.:

Thank you–

Peter K. Stris:

Thank you.

John G. Roberts, Jr.:

–Mr. Stris.

Ms. Chatman, you have 4 minutes remaining.

Catherine Baker Chatman:

Thank you.

Of course there’s a Federal interest at stake here.

It’s the Federal interest in the Federal Courts not having to deal with stale habeas claims in Federal Court.

One thing I’d like to address is the capital case presumption, which is now… excuse me… 180 days.

It’s been changed from 90 days.

That presumption is for… from the filing of the reply brief to filing an initial petition in California Court.

Catherine Baker Chatman:

That is, your first habeas petition.

They… you only get presumed timely for 180 days.

Here, we’re talking about noncapital cases going just from… taking claims, that have already been presented in one petition, to the next level.

So, in those–

Stephen G. Breyer:

Well, 180 days from what?

Catherine Baker Chatman:

–From the filing of the… the final due date of the filing of the reply brief–

Stephen G. Breyer:

Well, I mean, you file–

Catherine Baker Chatman:

–in the direct appeal.

Stephen G. Breyer:

–the reply brief in the lower court.

Maybe the judge will take 4 months to decide it.

What’s the relation?

I don’t understand that.

Or maybe it’ll take–

Catherine Baker Chatman:

I–

Stephen G. Breyer:

–2 days–

Catherine Baker Chatman:

–I think–

Stephen G. Breyer:

–to decide.

Catherine Baker Chatman:

–I think they… I think they date it from the filing of the reply brief because–

Stephen G. Breyer:

Why?

What would the theory be?

I don’t understand that.

Catherine Baker Chatman:

–Because they like to see these claims presented along with the appeal to be… so that they can possibly bring them together and decide habeas claims in light of the record on appeal.

So, I think that’s why they date it from filing of the reply briefs.

Stephen G. Breyer:

So, a judge… you file it. On day… what… you file it on April 1st, and then the judge decides it in August.

Or September.

And now it’s only 3 days before the 6 months… you have to file your appeal, like, in 3 days.

That wouldn’t make sense.

And the Congress would not–

Catherine Baker Chatman:

Well, you’re not… you’re generally not supposed to be waiting.

I mean, you were talking about claims such as–

Stephen G. Breyer:

–You can’t–

Catherine Baker Chatman:

–ineffective–

Stephen G. Breyer:

–file an–

Catherine Baker Chatman:

–assistance–

Stephen G. Breyer:

–appeal before… oh, maybe you can in California.

You’re going to file the appeal before the lower court decides it?

Catherine Baker Chatman:

–Well, if we’re talking about capital cases here, they are… they are filing their appeals directly in the California Supreme Court; similarly, with their habeas petitions.

Stephen G. Breyer:

Even… or even before they get a lower court decision.

Catherine Baker Chatman:

There would be no lower court decision.

Stephen G. Breyer:

They don’t, at all.

Catherine Baker Chatman:

No.

Stephen G. Breyer:

In other–

Catherine Baker Chatman:

No, no, no.

Stephen G. Breyer:

–they don’t, at all.

Catherine Baker Chatman:

No, they go–

Stephen G. Breyer:

Oh.

Catherine Baker Chatman:

–straight to California Supreme Court.

Which brings up one point, which is that the problem that we’re looking at here in deciding timeliness will not arise in capital cases.

We will not have that problem, because capital cases go straight to the California Supreme Court.

There are not going to be intervals between the courts to deal with.

So, that simplifies, I think, the problem a little bit.

The other thing I’d like to address is the argument that a State Court is saying something with these summary orders.

I strongly disagree with that.

They are absolutely saying nothing.

This Court said in Ylst that the essence of an unexplained order is that it says nothing.

It does not say, “This is a timely petition”.

John G. Roberts, Jr.:

Well, the ones that would cite a case that threw out the petition because it was untimely… and we were told there were over a thousand of those every year… that would be saying something, wouldn’t it?

Catherine Baker Chatman:

That is… in the California Supreme Court, you will find that sometimes, that they will indicate untimeliness by a case citation; hardly ever in the lower appellate court.

And I would also disagree with the characterization of delay being a problem going from the lower appellate court to the California Supreme Court.

We see it at both levels.

Catherine Baker Chatman:

And I would also disagree that this shouldn’t be a problem because these Petitioners have no incentive to delay.

That may be the case, that they don’t have an incentive to delay, but they do, in fact, sleep on their rights, as–

Stephen G. Breyer:

How often–

Catherine Baker Chatman:

–Chavis did.

Stephen G. Breyer:

–You, as the Attorney General, what period of time after the District Courts made a decision, and now… they’ve now filed their claim in the Court of Appeals… how long is it before you say it’s untimely?

Catherine Baker Chatman:

We would… we would say anything over 60 days.

Yes, Your Honor.

I see my time is up.

Thank you.

John G. Roberts, Jr.:

Thank you, Ms. Chatman.

The case is submitted.