Garlotte v. Fordice – Oral Argument – April 24, 1995

Media for Garlotte v. Fordice

Audio Transcription for Opinion Announcement – May 30, 1995 in Garlotte v. Fordice

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William H. Rehnquist:

We’ll hear argument next in Number 94-6790, Harvey Garlotte v. Kirk Fordice.

Mr. Boyle.

Brian D. Boyle:

Thank you, Mr. Chief Justice, and may it please the Court:

Petitioner Harvey Garlotte has been confined in Mississippi since 1985 under a consecutive term of 3 years imprisonment and two follow on concurrent life terms.

In this habeas action, Mr. Garlotte challenges the conviction that resulted in the 3-year term, and the question in the case is whether Mississippi’s treatment of all of Mr. Garlotte’s consecutive sentences as a single, essentially general sentence for penalogical purposes means that Mr. Garlotte was in custody for purposes of habeas corpus when he began this action in 1989.

William H. Rehnquist:

What do you mean by saying Mississippi treated it as kind of a generic sense, or something like that?

I didn’t catch your exact phrasing, but I gather it’s something of importance to your argument.

Brian D. Boyle:

Well, we argue, Mr. Chief Justice, that Mississippi essentially aggregates, or treats as unitary, a series of consecutive sentences, and by that I mean the prisoner is assigned a single date of parole eligibility, which turns on the total period of confinement, not on the individual sentences, the order in which those sentences have been prescribed is irrelevant to the prisoner’s release date, and such penalogical functions as calculating earned time, calculating good time, those functions are made on the basis of the total term of confinement, so I analogize consecutive sentences to a general sentence for multiple convictions.

William H. Rehnquist:

And what is a general sentence?

Brian D. Boyle:

A general sentence–

William H. Rehnquist:

That’s simply a single sentence?

Brian D. Boyle:

–Your Honor, a general sentence at common law was a single term of confinement for convictions upon multiple counts.

It raised any–

William H. Rehnquist:

What you didn’t have here.

They were consecutive sentences.

Brian D. Boyle:

–That’s correct, Your Honor.

William H. Rehnquist:

You say Missouri… Mississippi treats consecutive sentences much like a general sentence for multiple con… would have been treated at common law, is it?

Brian D. Boyle:

That’s basically our point, Your Honor, that for all intents and purposes Mississippi treats consecutive sentences, administers them as a general sentence in which–

Sandra Day O’Connor:

Well, the practical effect is, if the marijuana conviction were set aside the petitioner would be entitled to an earlier release date from the remaining sentence, I gather.

Brian D. Boyle:

–That’s basically correct, Your Honor.

He would be entitled… he would be eligible for release on parole–

Sandra Day O’Connor:

At an earlier date–

Brian D. Boyle:

–At an earlier date, that’s correct.

Sandra Day O’Connor:

–if this were set aside.

Brian D. Boyle:

That’s correct.

Sandra Day O’Connor:

Was the challenge to the marijuana conviction brought during the period of time when the petitioner was still serving a sentence on the marijuana conviction?

Brian D. Boyle:

Our argument, Justice O’Connor, is that Garlotte is being held under all of his convictions, including the marijuana–

Sandra Day O’Connor:

I know that.

I’m asking whether the… his challenge to the marijuana conviction was brought at a time when he was still serving time on the marijuana conviction, and I would think that would be just a factual thing, yes he did, or no he didn’t.

Brian D. Boyle:

–Looking at the marijuana sentence alone, Your Honor, no, he was not marking time on that sentence.

Sandra Day O’Connor:

When he first challenged it.

Brian D. Boyle:

When he first brought his Federal petition, when he first went to Federal court.

It’s a matter of debate in terms of when he first went into State court to exhaust his State remedies.

Antonin Scalia:

Of course, your position is that he was serving time on that, because you can’t separate the time on that from the time on the rest.

Brian D. Boyle:

That’s precisely our position, that it’s impossible to parse the consecutive sentences that Mr. Garlotte is serving under, and indeed inappropriate to do so, because the State doesn’t do so for any penalogical purposes.

William H. Rehnquist:

Well, surely it’s not literally impossible to parse.

Maybe it’s inappropriate, as you say, but one can tell a 3-year sentence from a much longer sentence, I take it.

Brian D. Boyle:

I think that’s right, Mr. Chief Justice.

Let me make a slightly different point.

I think the question whether Garlotte is marking time on the marijuana sentence is somewhat separate from the question whether he’s being held under the marijuana conviction, and as I answered Justice O’Connor’s question, looking at the marijuana sentence alone, he is not… he was not marking time on that conviction–

William H. Rehnquist:

That had expired by the time he–

Brian D. Boyle:

–Well, the State insists that it expired at that point.

William H. Rehnquist:

–Well, if it was a sentence for 3 years, one can tell simply by looking at State law, I suppose, whether or not it had expired.

Brian D. Boyle:

Looking at the sentence individually, that’s correct, Your Honor.

William H. Rehnquist:

Yes.

Brian D. Boyle:

But you have a different argument, as I understand it, based on Peyton.

You’re saying the reason the sentences were amalgamated in Peyton in order to be able to “anticipate” a sentence for purposes of habeas attack was to satisfy the jurisdictional requirement that he be in custody.

Well, if you can amalgamate in order to anticipate, the you’ve got to follow the same jurisdictional rule when in fact you’re looking backwards, so I think you’re… you have a separate argument saying you can’t have Peyton for jurisdictional purposes and not allow me to attack, i.e. on the basis of custody for jurisdictional purposes, and that’s a separate argument, isn’t it?

I mean, that’s an argument based on Peyton, and you’re saying you can’t have it both ways.

That’s correct, Justice Souter.

The principle that derives from Peyton is that a prisoner serving consecutive sentences is in custody under any one of those sentences for the balance of his confinement.

Antonin Scalia:

Well, maybe it wasn’t principle that was driving Peyton.

Maybe it was a practicality that was driving Peyton.

Why can’t you say, you know, the law makes up these categories.

There’s no such thing as, you know, whether it’s separate or amalgamated.

It’s simply how you choose to look at it, and we choose to look at it as amalgamated in Peyton in order that you didn’t have to wait a long time before you could try the factual matters necessary to determine the earlier incarceration, but in this case that practicality cuts in precisely the opposite direction, doesn’t it?

Brian D. Boyle:

Oh, undoubtedly there were practical considerations that motivated the Court in Peyton, and those you described, and it is clear that the rule that we propose would permit Mr. Garlotte to challenge his marijuana conviction for as long as he remains in iron bar confinement in Mississippi, just as it would permit another prisoner serving a life sentence to challenge that life sentence for as long as he remains confined.

But the practical considerations that motivated the Court in Peyton led to a principle in the case that obviously spans beyond the narrow factual circumstances that the Peyton Court confronted, and the principle is that the prisoner serving consecutive sentence is for all intents and purposes really serving a general sentence on multiple convictions, and can bring the petition in time.

Ruth Bader Ginsburg:

Was there any rhyme or reason to the sentence order, Mr. Boyle?

I think the prosecutor said he was indifferent.

Brian D. Boyle:

That’s correct, Justice Ginsburg.

At the sentencing hearing the prosecutor expressed total indifference to the order in which Garlotte would be required to serve his sentences, and for good reason.

It doesn’t matter for purposes when he will… for purposes of the most important event for the State and the prisoner, which is when he might be released into the community, the order in which those sentences appear in the commitment order makes no difference.

Ruth Bader Ginsburg:

Is there a reason the judge might put the longer sentence first and the shorter sentence second, or the other way around, as in this case, the shorter one first and the longer one second?

Brian D. Boyle:

No reason that occurs to me, except perhaps… and we don’t make this argument at all here… except perhaps to foreclose collateral review if we’re wrong here.

I think we’ve canvassed the cases pretty carefully in Mississippi, and there’s no… appears to be no rhyme or reason to the order of sentences such as we have here, a short, fixed period of confinement followed by a consecutive life term.

In many cases, you find the life sentences first to be followed by the fixed terms of imprisonment, and in that instance, of course, the prisoner becomes eligible for parole, eligible for release without having even begun serving the fixed terms of imprisonment that follow the consecutive sentences… follow the life terms, so I think that provides a handy illustration of how consecutive sentences really do amount to a general sentence.

John Paul Stevens:

May I ask… you’ve been very careful each time to say he’s eligible for parole earlier if the shorter sentence is set aside.

Is it clear… what is Missouri… Mississippi law on the following hypothesis.

The… say there’s no bail or anything pending appeal.

The person starts serving a sentence immediately, and the short sentence is fully served before the appeal process is over, and the appellate court sets aside the short sentence and leaves in place the long sentence.

Does he get an earliest release date then?

Brian D. Boyle:

My understanding of Mississippi law is that he would.

John Paul Stevens:

So it’s not just eligibility for parole.

He would in fact get the earlier–

Brian D. Boyle:

Right.

One of the other features of consecutive sentences that we point out in our opening brief is that time served, or time marked under one of the consecutive sentences is really only provisionally credited against that sentence.

If one of the sentences positioned earlier is invalidated for any reason, subject… or pardoned, the later consecutive sentence sort of slides forward, and the person gets full credit, and that’s another point we make about… or another basis for our conclusion that consecutive sentences really do amount to a single, general sentence upon multiple convictions.

Antonin Scalia:

–Whereas if you had been sentenced to that separately and then had been released, and then committed another crime, and then later it was disclosed that you didn’t actually commit the earlier crime, that’s just tough luck.

It wouldn’t be credited against your later sentence.

Brian D. Boyle:

I think it’s tough luck, and for this reason.

I don’t think States want to be in the position of giving a prisoner an opportunity to bank time under an unconstitutional conviction they can apply against a future offense.

I’ve described Mississippi law, and how Mississippi’s position on the custody question is inconsistent with the statutes that define Mr. Garlotte’s custody, but Mississippi’s position is likewise inconsistent with its own actions in administering Mr. Garlotte’s sentences, and profoundly inconsistent.

On the one hand, we’re told that Mr. Garlotte’s sentence expired and was supposedly beyond redetermination, beyond adjustment, sometime between 1988 and 1986.

It’s hard to tell.

It depends on when you look at it.

But in 1992, pursuant to recently enacted legislation, the Mississippi Department of Corrections credited a significant amount of earned time, meritorious earned time to Mr. Garlotte’s confinement.

The net result was that his marijuana sentence was cut in half, and the Mississippi Department of Corrections credited the time that was freed up against the life sentences.

Now, I don’t know how that action can be reconciled with Mississippi’s position here that the sentence is over and done with and beyond adjustment.

The critical point I’d like to make is that the credits that were awarded in 1992 remain reversible, and for as long as Mr. Garlotte is in iron bar confinement.

Brian D. Boyle:

I think that illustrates how the marijuana conviction restrains Mr. Garlotte throughout the aggregate duration of his confinement.

Antonin Scalia:

Why is that reversible?

Brian D. Boyle:

The Mississippi statutes which are cited in the… or quoted in full in the appendix to our brief provide for the computation of earned time, or commutation on the basis of the total period of confinement when a prisoner is under consecutive sentences, and separate provisions of Mississippi law provide for forfeiture–

Antonin Scalia:

So if he misbehaves later, the earned time that he got earlier which shorted his marijuana conviction will be put back on the marijuana–

Brian D. Boyle:

–That’s right, Your Honor, for as long as he remains in prison.

If he violates… I can’t remember the exact words, but if he commits a serious violation of prison rules 20 years from now the State, under my reading of the Mississippi statutes, can withdraw that earned time, and in that situation, of course, he will be deemed to have begun technically serving the life sentences a year-and-a-half later.

Now, Mississippi contends that the so-called discharge dates of each consecutive sentence must be, even though they’re irrelevant for penalogical purposes in Mississippi, they have to be treated as sacrosanct by Federal courts in confronting a habeas challenge.

I think that argument is the one that is foreclosed by Peyton, and quite clearly so.

Virginia in that case tried to block a prisoner from challenging the second of two sentences… I think they were 30 and 20-year sentences… in that case on the ground that he’d only been in prison a few years and hadn’t yet begun to serve the second term.

Observing that the prisoner in that case had a single parole date under Virginia law, the Court held that he was for all practical terms serving a 50-year sentence and it would be treated as such for habeas purposes.

Essentially, what the Court held is that the sentence under which a prisoner is technically marking time is… that question whether the prisoner is marking time under the challenged sentence is a separate one from whether he is held or in custody under the conviction, and that’s amplified by some of the Court’s other decisions, Hensley v. Municipal Court, Estelle v. Dorrough, and Braden v. 30th Judicial District Court, which permit a prisoner to challenge confinement that he is scheduled to serve in another jurisdiction before that… before he’s begun to serve that confinement.

I think the theory is that in that situation the prisoner is not only being held by the first jurisdiction to discharge the first sentence, but he’s also being held in anticipation of serving another sentence.

Mississippi relies a great deal on Maleng v. Cook, and submits that the issue has already really been decided in Maleng, but all Maleng held was that a sentence or a conviction that no longer poses any present restraints on a prisoner does not become a source of custody for purposes of Federal habeas corpus simply because it’s been used to enhance a sentence upon a subsequent conviction.

William H. Rehnquist:

–Do you think it’s fair to say, Mr. Boyle, that neither Maleng nor Peyton cover the facts of this case, that one is on one side and one is on the other?

Brian D. Boyle:

I think that’s fair, Your Honor.

The actual facts of Peyton were such that the prisoner had not yet begun to serve the sentence he was challenging.

William H. Rehnquist:

And the actual facts of Maleng were that the sentence had been served and was not affecting his present custody at all.

Brian D. Boyle:

That’s correct, but the sentence at issue in that case was not imposed consecutively.

There was no basis to conclude that the earlier sentence that had been used, or earlier conviction that had been used to enhance the subsequent sentence was somehow aggregated or combined into a single sentence by the jurisdiction for purposes of such things as parole eligibility, commutation, and so forth.

The only continuing influence of that prior conviction, in fact, was the prisoner’s status as a felon, which was obviously influential to the sentencing judge in the subsequent conviction in seeing that the prisoner is a danger and thus enhancing the sentence.

I think the principle to be derived from Maleng is that in that situation where a prior fully expired conviction is used to enhance a sentence for a subsequent offense, that the source of the prisoner’s injury and the proper object of his habeas petition is that subsequent sentence, that subsequent conviction, and that’s in fact what the Court held in that case.

The Court found jurisdiction over the claims in the case, but albeit through the subsequent offense and subsequent sentence.

Now–

Antonin Scalia:

Mr. Boyle, I’m concerned about the practical effects of what you urge us to do here.

That is, about opening up to challenge very stale, very stale convictions on the basis of evidence that’s, I mean, 20, 30, 40 years old.

You’re saying anyone who’s serving under consecutive sentences can now go back, even though he didn’t raise the challenge at the time, and challenge a sentence, 2, 3 year sentence that he served at the beginning of his incarceration.

Why would we want to create that kind of problems for the State and Federal courts if, as you say, none of our decisions squarely requires us to do that?

Brian D. Boyle:

–I agree that, Your Honor, that concerns about delay are legitimate concerns.

I don’t think they’re present here.

The State doesn’t argue that Mr. Garlotte delayed inexcusably his habeas petition here, and I think our position is that the jurisdictional scope of the statute, which Congress delimited in terms of confinement, in terms of custody such that a prisoner serving a life sentence could conceivably wait 40 years before bringing a habeas challenge–

Anthony M. Kennedy:

Well, I take it, Mr. Boyle, Rule 9(a) mitigates that argument somewhat in that a petition can be dismissed if there’s been lack of diligence in filing… if the State… at least if the State can show prejudice, I believe, under that rule.

Brian D. Boyle:

–Absolutely, Your Honor, and so I would regard the jurisdictional question as ill-suited to… or the jurisdictional inquiry as ill-suited to try to deal with concerns about delay.

It seems Rule 9(a) is a perfectly fitted remedy.

I’d make another point, and that is where you have a prisoner serving a continuous period of confinement under multiple convictions there is… there’s no real incentive for a prisoner to delay bringing his habeas claims.

Each day that passes is potentially another day in unconstitutional confinement.

Each day that–

William H. Rehnquist:

Certainly the Court in Peyton used the jurisdictional analysis to solve a practical concern, didn’t it?

That suggests that the jurisdictional statute may not be regarded as like the twelve tablets, so to speak.

Brian D. Boyle:

–I don’t contend that practical considerations are irrelevant here.

David H. Souter:

But do you take the position that Peyton does not control?

Brian D. Boyle:

I think, Justice Souter, the principle of Peyton does control this case, the principle being that a prisoner serving consecutive sentences is in custody under each conviction supporting those sentences throughout the aggregate duration of the confinement.

David H. Souter:

So you are saying we cannot rule against you without overruling Peyton.

Brian D. Boyle:

Without overruling or modifying its principle.

I think that’s right.

There are practical considerations to point out in Mississippi’s position as well.

I’ll mention a few of them.

The first is that the rule sought by Mississippi would make the availability of redress for constitutional claims turn arbitrarily and capriciously on the order in which those sentences are positioned in the commitment order, and for no real reason, when the State concedes that the order in which they are to be served makes no difference for important penalogical events.

William H. Rehnquist:

But I think you would have a hard time justifying your characterization of that as arbitrary, saying that you have to challenge a sentence during the time in which you’re serving it.

Now, your argument may be that the statute permits that, which I understand, but I don’t think it’s… I think it’s hard to say it’s arbitrary if it doesn’t permit it, to simply say, you had a sentence for 3 years imposed upon you and you have to challenge it during the time you’re serving that sentence.

Brian D. Boyle:

Our threshold position, Mr. Chief Justice, is that each of the convictions supporting the consecutive sentences poses a present restraint throughout the duration of confinement, and in light of that I think that permitting the availability of redress to turn on the order in which the sentences appear in the commitment order when that order makes no difference for purposes of… for penalogical purposes in Mississippi would, indeed, be arbitrary.

Another effect of the rule sought by Mississippi is that it would place prisoners’ constitutional claims at the mercy of the exhaustion process.

A prisoner who moved diligently to exhaust his State remedies and that exhaustion process for whatever reason did not conclude prior to the technical expiration or the so-called discharge date of the first consecutive sentence would be foreclosed from habeas relief.

Antonin Scalia:

Of course, that happens when a prisoner hasn’t gotten any more than the one sentence as well.

I mean, if he ends up and serves his 3 years and it serves more than 3 years for the habeas proceedings to be completed, it’s then too late to get any habeas relief.

He served his time, it’s water over the dam, and he can’t challenge that conviction any more–

Brian D. Boyle:

That’s true, Your Honor, but here, of course–

Antonin Scalia:

–even if it has continuing future effect, at least for purposes of recidivism and so forth.

Brian D. Boyle:

–But the difference here, Your Honor, is that the marijuana conviction will pose restraint on Mr. Garlotte, will have custodial, real custodial effects on Mr. Garlotte throughout the time he is confined in Mississippi, an iron bar confinement, and in that circumstance, I think it’s unfair to leave those… the claims he may have against that conviction at the mercy of the exhaustion process.

The final point, from a practical perspective, is that it would… the rule sought by Mississippi would put courts in the sometimes confounding position of trying to figure out… trying to parse consecutive sentences and trying to figure out when confinement ends under one and begins under another.

This case is a perfect example, where the technical discharge date of Mr. Garlotte’s marijuana conviction swung wildly from ’88 to ’86.

Brian D. Boyle:

It may swing back again.

There’s no reason to take on that burden when the State doesn’t do so for purposes of administering its penal system and when nothing of importance penalogically turns on those technical discharge dates.

It would be–

William H. Rehnquist:

How would this rule be applied in States other than Mississippi?

I mean, I suppose you’re going to have some variations, maybe 50 variations.

Brian D. Boyle:

–There may be some, Mr. Chief Justice, and there may… those variations may have significance for purposes of the Federal question, but my understanding of Mississippi’s rules is that these are the customary rules under which consecutive sentences are administered, for good reason.

The State doesn’t want to risk having a prisoner paroled on the first conviction and sentence before he begins to serve another conviction and sentence.

The State doesn’t want to put itself in the position of having a prisoner released because the first sentence is invalidated or pardoned pending the service of other sentences.

It wants a continuous period of confinement, and so I think the–

Anthony M. Kennedy:

I’m not sure why that would happen.

If he’s… let’s assume that in this case the marijuana conviction was set aside.

Why wouldn’t he just be automatically held under any sensible procedure for the next consecutive sentence, or am I missing something?

Brian D. Boyle:

–Under consecutive sentences he would, Justice Kennedy, and that’s because the commencement date for each subsequent consecutive sentence is a function of the termination date of the prior.

If the sentences were truly separate, if they were… if they each had separate, fixed beginning and end dates, you could imagine a situation in which a prisoner would be eligible for parole and might get parole, be in the community, before he was called to serve the subsequent sentences.

Anthony M. Kennedy:

Oh, I see.

Brian D. Boyle:

So the State sees real advantages in aggregating, amalgamating consecutive sentences and treating them as a general sentence, and our submission is that, given that election, Mississippi has to accept the consequences that turn on long periods of confinement.

The State I don’t think should be permitted to resurrect artificial discharge dates as a means of closing habeas review when those discharge dates have absolutely no meaning under the penal system.

If there are no further questions, I’d like to reserve the balance of my time.

William H. Rehnquist:

Very well, Mr. Boyle.

Mr. White, we’ll hear from you.

Marvin L. White, Jr.:

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

There are two basic arguments here, and the argument that we are looking at is the extension of Peyton v. Rowe to this particular situation.

Peyton was decided to take care of a specific situation, the overruling of McNally v. Hill, which had set up a rule of prematurity in the bringing of a habeas petition for sentences to be served in the future.

The circuits that have decided contrary to the Fifth Circuit have grasped on the language found in the last paragraph of the opinion without any analysis of the reason for Peyton to be decided.

Sandra Day O’Connor:

Well, regardless of the reason, what happened in Peyton was that the Court said you could aggregate the sentences and a habeas challenge would lie immediately, even to one that technically hadn’t started to run yet.

Marvin L. White, Jr.:

That’s correct.

Sandra Day O’Connor:

And if you apply that principle here, then there is jurisdiction even though the marijuana conviction sentence has expired because it has an effect on the length of time the prisoner will actually serve on the second conviction.

Marvin L. White, Jr.:

But that was not the basis of Peyton.

Peyton was to–

Sandra Day O’Connor:

There were reasons given, but it nonetheless adopted a principle of aggregating them and letting the habeas challenge be brought.

Marvin L. White, Jr.:

–But the Court repeatedly said, for sentences to be served in the future, not in the past.

I mean, we have a different factual situation–

David H. Souter:

No, but Peyton was construing a statute, and it was construing the word “custody” in the statute, and it said that term is going to be construed on the theory of in for one sentence, in for all, and I don’t see how that construction can vary depending on whether we are looking forward or whether we are looking backward.

This isn’t a question of just common law policymaking that the Court was going through here.

It was going through statutory construction, and I don’t know why we are not bound by it under the normal rules of stare decisis.

Marvin L. White, Jr.:

–Well, we contend that it’s a totally different fact situation, and that it is… the basis–

David H. Souter:

So you’re saying, therefore, or you’re implying that the same word in the same statute has radically different meanings, depending on whether we look forward or whether we look back?

Marvin L. White, Jr.:

–Absolutely.

David H. Souter:

That’s a tough row to hoe.

Marvin L. White, Jr.:

Absolutely.

David H. Souter:

Can you explain how we have that freedom?

Marvin L. White, Jr.:

If the sentence has already been served, he is not in custody on that sentence any longer.

David H. Souter:

No, but you’re… it’s fine to say that, but you’re in effect rejecting the premise of the question.

The question’s premise is, we’ve already construed custody to say, all consecutive sentences are continuous, to be regarded as one for purposes of what is custody under this statute.

How do we have an option to say, in fact, we were wrong, that only applies when we are looking forward?

That isn’t what we held, and I don’t see how, in principle, we could redefine the identical term in the two circumstances.

Marvin L. White, Jr.:

Well, I don’t… and of course I don’t read Peyton that broadly, as being the answer to the whole question.

I mean, it… in the last–

David H. Souter:

No, you see–

Marvin L. White, Jr.:

–paragraph, I think–

David H. Souter:

–not broadly, but the Court did not say, for purposes of looking forward statutes are or sentences are continuous.

It said, sentences are continuous, period.

Marvin L. White, Jr.:

–In that last paragraph.

David H. Souter:

And therefore we can look forward.

Marvin L. White, Jr.:

In the last paragraph.

Every other time it mentions about, in the future.

David H. Souter:

Well, it–

Marvin L. White, Jr.:

In the future, in the future.

David H. Souter:

–It went through… I just skimmed Peyton again.

I mean, Peyton has sort of two parts, in a way.

David H. Souter:

It has a policy and it has a… well, three parts, I guess.

It has a historical analysis, then it has a kind of policy analysis of considerations, and then, in its concluding section, it draws the lesson that Mr. Boyle relies upon and, perfectly true, it says in the policy analysis we’re worried about the value or lack of value in looking ahead, but when it gets to construe the statute it says, custody means a continuity of sentences, and it… I don’t… you… I don’t see how we could hold your way without saying that the term is going to have different meanings depending on whether we look forward or look back.

And there may be policy reasons for wishing it did, and they are in part addressed by the point that Justice Kennedy made, but regardless of policy reasons for wishing it could, we’re still faced with the fact that we’ve only got one word in one statute, and I don’t see how it can have two meanings.

Marvin L. White, Jr.:

Well, the policy considerations certainly weigh heavily in this case, because once this Court says that it can retroactively do so, somebody that has been, even with Justice Kennedy’s concern, or I mean, comment about Rule 9, this does not mean that these people can’t raise these claims that are 40 years old.

You know, even… the case–

David H. Souter:

Well, it does but–

Marvin L. White, Jr.:

–The question that’s–

David H. Souter:

–It does, but your argument suggests that there is somehow an inducement for their delay, and I don’t see that, because I don’t see why the inducement is not likely to work against them.

I would suppose the inducement would be, if they really have a claim, to get it out and get it litigated.

If they don’t have a claim, they’re not going to be any better off 40 years later.

Marvin L. White, Jr.:

–Well, this very petitioner belies this whole argument about not delay, of the lack of delay that they make, saying that everybody’s going to rush in and file their habeas as quick as they can.

His State remedies were exhausted on two consecutive murder convictions that he’s serving now in 1992.

He has yet to file a habeas claim on those cases.

This is not something that we don’t see every day in dealing with habeas cases.

They wait 10, 15 years, and all of a sudden–

Anthony M. Kennedy:

Well, you’re not contending that he lacked diligence in filing this petition, are you?

Marvin L. White, Jr.:

–No.

He filed this–

Anthony M. Kennedy:

All right.

Marvin L. White, Jr.:

–But he had already… his sentence had expired in this case and, of course, they say… the petitioner is arguing that aggregate sentences don’t make any difference under Mississippi law, that they’re all amalgamated.

Well, they’re not.

We only have to look at page 54 of the Joint Appendix to see.

Why, if they didn’t make any difference, why would the State of Mississippi or the Department of Corrections produce something there that has a parole eligibility date and a discharge date on it for each sentence?

Antonin Scalia:

Well, his point is that that’s just a paper distinction.

What would happen if he files promptly in habeas and the case goes all the way through State courts and it gets up to our Court 3-1/2 years later, and because he’s acquired a half-year’s worth of good time, 3-1/2 years is 1 day later than his term expired?

We’d have to dismiss the case.

Marvin L. White, Jr.:

No.

Antonin Scalia:

It’s moot, right?

Marvin L. White, Jr.:

Not under Coffey v. LaVallee.

I mean, if he filed it while he was in custody he’s… then it continues.

Antonin Scalia:

Suppose he files it 3-1/2 years plus 1 day, all right?

Then he’s out?

Marvin L. White, Jr.:

That’s right.

Antonin Scalia:

What if the good time that he’s earned on his 4-year sentence is later restored?

Marvin L. White, Jr.:

Is later–

Antonin Scalia:

Right.

Marvin L. White, Jr.:

–restored?

Antonin Scalia:

He’s still serving his sentence.

He has this 4-year sentence plus two life sentences afterwards, and he’s gotten a half-year’s worth of good time credits on his 4-year sentence, so he files his habeas action during that period that’s been eliminated.

Marvin L. White, Jr.:

Oh, and it–

Antonin Scalia:

By virtue of his good time credits.

Marvin L. White, Jr.:

–And it’s later taken away, is what we’re saying.

Antonin Scalia:

And it’s later restored… yes, right.

I mean, the good time credits are–

Marvin L. White, Jr.:

That’s what I didn’t understand.

Antonin Scalia:

–later eliminated.

Does it retroactively–

Marvin L. White, Jr.:

No.

Antonin Scalia:

–become a timely habeas petition?

Marvin L. White, Jr.:

No, and–

Antonin Scalia:

It doesn’t?

Why not?

He’s served 4 years on it.

He filed it within the 4-year period.

Marvin L. White, Jr.:

–I was not saying no to your question, there.

Antonin Scalia:

Oh.

Marvin L. White, Jr.:

I’m saying that retroactively we don’t take away good time as a matter of policy.

Antonin Scalia:

Oh, just policy.

Marvin L. White, Jr.:

Of course, there’s been no–

Antonin Scalia:

The statute permits it, I see.

Marvin L. White, Jr.:

–There’s been no evidentiary hearing in this case to bring out the… these ifs, ands, and buts in the interpretation of the statute, in the application there, but that doesn’t happen, you know.

The hundred and… the time that he has, good time on this, will not be taken away from him.

Antonin Scalia:

It is permissible for that to happen, isn’t it, during his entire time of incarceration?

Marvin L. White, Jr.:

Under the statute, but the practice and procedures right now that are in effect and every decision of our supreme court has said that any benefit, and that’s why it’s been refigured, is that the benefit goes to the–

Antonin Scalia:

Well, if you wrote the statute differently so that what you do is in fact what you… only what you can do, then we’d have a different case.

We might have a case where we don’t have one unitary sentence, as counsel for the petitioner is saying.

Marvin L. White, Jr.:

–Well, our supreme court has held that they’re not unitary, though.

Antonin Scalia:

Well, but your supreme court has not held that you can’t take away good time credits previously given.

You can.

You just tell me you don’t do it.

Well, the fact that you don’t do it doesn’t establish what kind of a sentence you have.

It’s just a practice.

Marvin L. White, Jr.:

Well–

Antonin Scalia:

I’m troubled by the fact that this thing can be filed in a manner that’s declared to be untimely and then retroactively it can be rendered timely.

You tell me, well, you don’t do it.

Well, that’s nice of you, but it doesn’t fit with the theory of the case, it seems to me.

Marvin L. White, Jr.:

–Well, the point being that if it, at some later point it did, I think that that… you know, he could then file.

It could be timely.

But at the time, if we have a situation where this is not… his sentence has expired, and the… just as the discharge date in this case, it is passed.

It was long passed.

Ruth Bader Ginsburg:

Could he say thanks but no thanks to the good time because I want to challenge the sentence.

If I don’t get the good time, my time… I’ll still be under the first sentence?

Marvin L. White, Jr.:

It is credited… well, there are two types.

There’s earned good time and meritorious good time.

They are two different animals.

They get confused.

Now, when you enter in on a sentence, you are given credit.

As of 1992, you’re given credit for half the sentence that you will serve, are sentenced to serve, and at any time during your sentence, parts of that can be taken away.

William H. Rehnquist:

You mean, if you’re sentenced to 10 years, and you start serving your sentence on March 1st, 1995, you are said to have a 5-year sentence?

Marvin L. White, Jr.:

That’s right.

Ruth Bader Ginsburg:

Is there any rhyme or reason to do the order of these sentences?

The prosecutor was indifferent, and Peyton we have an example of the shorter sentence second.

In this one, the shorter sentence is first.

Marvin L. White, Jr.:

Certainly.

In this particular case, if you’re sentenced to a life sentence you don’t get that… there are exceptions to the half-time credit.

He would have had no good time at this point at all.

He would not be… start receiving any good time or meritorious earned time until next month, or June of this year.

He would… you know, the 10 years on a life sentence is day for day, without any reduction, and then if that… when that parole eligibility date is reached for the murder conviction, then the marijuana conviction would start to be served, and then he would be entitled to the meritorious earned time and statutory earned time, good time.

John Paul Stevens:

May I ask as a matter of Mississippi law, what is the condition that must be met in order to file a collateral attack in Mississippi?

Is custody the standard there, too?

Marvin L. White, Jr.:

Yes.

John Paul Stevens:

And would that mean that as a matter of Mississippi law he would be too late to attack his sentence, or has that not been decided?

Marvin L. White, Jr.:

Well, of course, he timely filed it here, within the 3-year… we have a 3-year statute of limitations from the time that you enter a guilty plea or the time the State supreme court decides it’s a case on direct appeal.

John Paul Stevens:

It’s a 3-year statute or limitations regardless of the length of the sentence?

Marvin L. White, Jr.:

Regardless.

John Paul Stevens:

I see.

Marvin L. White, Jr.:

And if you don’t bring it within the 3 years, it’s… you know… there are some exceptions.

John Paul Stevens:

Yes.

Marvin L. White, Jr.:

I mean, there are exceptions to the statute, but basically we have a 3-year statute of limitations.

John Paul Stevens:

Well, if you were within one of the exceptions, would you be able to file after the 3 years… after the short sentence had expired?

In other words, do you have a rule in Mississippi such as the one you’re contending should apply in Federal court?

Marvin L. White, Jr.:

That… I mean, if he… if his time has been served, he–

John Paul Stevens:

It’s too late in this–

Marvin L. White, Jr.:

–He’s out of court.

John Paul Stevens:

–It’s–

Marvin L. White, Jr.:

It’s too late.

I mean, if he has a 1-year sentence, you know–

John Paul Stevens:

–Right.

Marvin L. White, Jr.:

–And he serves that 1-year sentence, he can’t wait 2 more years to attack that… collaterally that 1-year sentence.

William H. Rehnquist:

So the statute of limitations is a necessary but not a sufficient condition for the habeas petitioner to meet.

William H. Rehnquist:

If… even though he’s within the 3-year year statute of limitations, if he’s… if the… his sentence has already expired, he can no longer challenge it in State collateral–

Marvin L. White, Jr.:

That’s correct.

So you know–

Antonin Scalia:

–But there’s no statute on Federal habeas.

Marvin L. White, Jr.:

–No, not yet.

And of course in this particular case the State contends that we… the aggregate sentences do make a difference, as I was explaining there, that they… the order in which they’re served, and in this particular case, under petitioner’s theory, that he would be able basically to challenge this marijuana conviction for the rest of his life.

Because in Mississippi if you’re sentenced to life, you’re sentenced to life, while even though you are eligible for parole in 10 years and may get out of jail, under Mississippi law you stay under a sentence of life for the rest of your life, and therefore he would have been able to challenge this marijuana conviction until the day he died.

Antonin Scalia:

Well, he’s able to challenge his life sentence conviction for the rest of his life.

Marvin L. White, Jr.:

Well, that’s true.

Antonin Scalia:

Right?

Marvin L. White, Jr.:

That’s correct.

Antonin Scalia:

What’s wrong with being able to challenge this other one for the rest of his life, if, indeed, the two are sort of mish-mashed together, and he’s serving them all together–

Marvin L. White, Jr.:

Well, they’re… the thing is they’re–

Antonin Scalia:

–each having an effect on the other.

Marvin L. White, Jr.:

–They’re separate convictions for separate crimes.

You know, I can understand that a life sentence, because of the collateral consequences of that that extend throughout the life of being basically, I think technically in custody for the rest of your life, whether you’re behind bars or not, and the marijuana conviction, this 3-year sentence, you’re saying because I’m in for this one I get a free ride on this one, and whereas if a person–

Antonin Scalia:

Or if this is put last.

Marvin L. White, Jr.:

–Or we put it–

Antonin Scalia:

You acknowledge if the short sentence were put after the life convictions he would have been able to challenge that short sentence for his entire life, both when he originally–

Marvin L. White, Jr.:

–Right.

Antonin Scalia:

–went in and later when he was serving it.

Marvin L. White, Jr.:

Right.

But there again is the reason we do that is because we want that speedy resolution of that… those future sentences, so we don’t wait for 40 years or 20 years or… to determine these cases, and that’s why… I mean, that’s the State’s position here, is that this actually turns Peyton on its head, because it invites delay and not… in this case, and you know, and as I say, in this very case is an example of that, where he has not challenged his life sentences in Federal court, although his State court remedies were exhausted on May 2nd, 1992.

Ruth Bader Ginsburg:

Maybe he has no reason to challenge those life sentences, and his reason is only to challenge the marijuana sentence, as to which you’re not making any claim of lack of diligence.

The problem was, he had to exhaust his State remedy.

That’s why he didn’t get to Federal court.

Marvin L. White, Jr.:

Well, that happens every day, that people exhausting their–

Ruth Bader Ginsburg:

But there’s no lack of diligence.

You were making an argument that this is an example of lack of diligence because he still hasn’t challenged his murder convictions on–

Marvin L. White, Jr.:

–No, that was not the argument I was making.

Marvin L. White, Jr.:

The argument that this is… shows that this does not happen.

Everybody is not going to rush in and file their habeas petition as soon as possible on every case, and the parallel case with this, the consecutive sentence, that’s not happened yet.

We’re not saying that he did not, as soon as his… well, and he really didn’t file this.

He filed some more dilatory State pleadings instead of, after a determination of the State post conviction petition by the Mississippi supreme court, he filed a second one, a second petition in State court alleging the very same issues that had just been denied instead of going on and filing his Federal habeas.

I mean, that’s… it’s quite often done, and that’s… I mean, it’s not… it was not a long delay, of about a year, maybe, that he took to file his second almost identical petition in State court, but this… you know, this delayed his time, and this was, you know, his choice to file this instead of going into Federal court, because he exhausted his issues in that first petition–

Stephen G. Breyer:

–Is–

Marvin L. White, Jr.:

–and basically reexhausted them in the second petition and wasted a year’s time filing a second petition in State court.

So I mean… and I don’t even know if the… thinking back now, I don’t know whether the… if he had filed within that first time he would have still been within his… within the time that he was serving the marijuana conviction, but that did happen.

I mean, this happens quite often, and so of course by looking at it this way I think we turn the rule in Peyton, jurisdictional rule in Peyton upside down when we say that you can go back and challenge sentences that are fully served, even though there’s an aggregate, they aggregate in the future, and I think that that’s certainly the way it should be viewed.

Stephen G. Breyer:

–Do you think that there is a way… suppose you thought… I’m just trying this one.

I don’t know your reaction, but suppose you thought that Peyton and these other cases means yes, these sentences are all smushed together somehow, so is there still a difference between the period of time where the two sentences combined means that he has to be confined… in this case that’s 10 years and 10 months… and then the period of time after that.

In other words, suppose 10 years and 10 months runs–

Marvin L. White, Jr.:

As it will.

Stephen G. Breyer:

–As it will, and then that day comes, and then he isn’t released.

Marvin L. White, Jr.:

He’s not going to be.

Stephen G. Breyer:

Right.

Now, what I wonder is–

Marvin L. White, Jr.:

Under the present–

Stephen G. Breyer:

–after that day comes and goes, then if he wanted to challenge that first sentence, intuitively that seems much more like the case where a person’s been out for awhile, and at worst what happens is that that earlier sentence is sort of taken into account as an aggravating factor in his life that stops parole, whereas before that 10 years and 10 months runs, it seems much more like that that earlier sentence is having an active effect at forcing him to be confined for an additional 10 months.

Now, I don’t know if there is a way conceptually of taking that into account or not.

That’s what I’m… I’m wondering what your view is.

Marvin L. White, Jr.:

–Under… petitioner’s theory is that he is still, will be on parole for the marijuana sentence at the same time he is on parole for the murders if and when he ever gets out–

Stephen G. Breyer:

Yes.

Yes, I know that’s his theory.

That’s why I thought–

Marvin L. White, Jr.:

–and that… and so therefore he contends that that collateral consequence of being on parole extends whether it’s 10 or 15 or 20 years before Mr. Garlotte is released from custody.

I mean, it’s… presently the set-off is… on the first time of eligibility for parole is anywhere from 3 to 5 years right now, and–

Stephen G. Breyer:

–That’s why I wanted to know what you thought.

What do you think about that?

I mean, is there some distinction possible there, or not?

Marvin L. White, Jr.:

–Of course, our argument is that when he served–

Stephen G. Breyer:

Yes, I know.

Marvin L. White, Jr.:

–that he was required to on the marijuana conviction.

Stephen G. Breyer:

Right.

Marvin L. White, Jr.:

And we have a… in the penitentiary recs we have an earliest parole date and discharge date.

Stephen G. Breyer:

Right.

Marvin L. White, Jr.:

I mean, in the records there that are presented to the inmate, and there is a mistake in the one here, as we pointed out in the footnote, and as Mr. Garlotte points out to the Court in his petition for certiorari on page 9 and 10.

I mean, he realizes that this paper, because of a clerical error, is in error, and he’s actually not to be released until some 2 months later than they have listed there.

His earliest parole date is not listed because of a clerical error in applying–

Stephen G. Breyer:

Yes, yes, but I mean, if you lost on your basics theory you’d still prefer that he lose his right to challenge the initial conviction once the 10 years and 10 months comes to pass.

Marvin L. White, Jr.:

–Oh, absolutely.

Stephen G. Breyer:

And so I wondered if there… if you’ve thought of… you might… you probably haven’t thought about it.

I haven’t thought it through, but if there is some way conceptually that that would work.

I mean, I see an intuitive difference, and I’m not sure if it works out in the context of the cases.

Marvin L. White, Jr.:

Yes.

I mean, I think that there’s… you know, there’s a way to do that.

Of course, we’d rather have the whole loaf than half in this situation, and our concern, too, is that the… is this going to be retroactively applied to all habeas petitioners?

I mean, even in the face of Rule 9 it’s going to create… could create a tremendous work load on our office to have to answer all these things.

I mean, it’s… there’s one thing to assert jurisdiction and say the court has no jurisdiction, and a total… a totally different one to have to go into a Rule 9 situation where you may have to answer the total thing and do an extensive search for records and transcripts and things like this that may be very, very old or may not even be extant, so when you have a jurisdictional bar you are on a much more solid ground than you are on a Rule 9 bar in a habeas situation.

John Paul Stevens:

General White, have you finished your argument, because I wanted to ask you one question–

Marvin L. White, Jr.:

Yes.

John Paul Stevens:

–not directly related to the case.

I’m just curious, because you’ve had a good deal of experience in these cases, do you think the general exhaustion rule is a sound rule?

Marvin L. White, Jr.:

Yes, I think it is.

I think the State court should have first crack at it, and I think that–

John Paul Stevens:

You think that outweighs the delay that it causes, is the question that runs through my mind?

Marvin L. White, Jr.:

–Well, you know, if… in our Federal system, yes, I think it outweighs heavily the fact that the… the State courts are catching most of these things, and they’re making corrections in these cases and vacating… I know I, my court has changed, in the 17 years I’ve been with the Attorney General’s Office has changed, where it was a perfunctory denial on post conviction rules, where they’re seriously considered, and many, many vacations of sentences are… you know, you see opinions written in post conviction cases where you didn’t used to see that.

John Paul Stevens:

Yes.

Marvin L. White, Jr.:

There were many, many just perfunctory denials.

John Paul Stevens:

Thank you very much.

Marvin L. White, Jr.:

Thank you.

William H. Rehnquist:

Thank you, Mr. White.

Mr. Boyle you have 2 minutes remaining.

Brian D. Boyle:

Thank you, Mr. Chief Justice.

I’d like to make just a couple of points.

First, on the question whether it would be possible to parse consecutive sentences according to whether the prisoner is marking time in those sentences, another thought occurred to me, sitting down, and this is amplified in the briefs.

In Mississippi, as I think in most States, the sentences are really discharged in dovetail fashion, so that when Mr. Garlotte’s initial parole eligibility comes around in March 1996, he will still have the balance of his life terms to serve as well as a parole term on the marijuana conviction.

This is not idle imagination, either.

One of the cases we cite, Williams v. Puckett, describes a situation where a prisoner who was on probation committed a subsequent offense, was sentenced upon that offense, and had his probation revoked.

The order in which the Department of Corrections considered those sentences satisfied was first the mandatory term on the revoked probation, second, the minimum parole term on… actually, it was a nonparolable offense, armed robbery, that entire 10-year term next, and finally the parole term on the original offense, so it’s… they really are discharged in dovetail fashion.

Then also, in response to Justice Breyer’s question, which is an intriguing one, I think this case, of course, illustrates the direct restraint that is posed by Garlotte’s marijuana conviction, but I think even beyond the date of initial parole eligibility, like in the year 15 or 20, the sentences still are treated as a general sentence.

The earned time that he has on his marijuana conviction is carried forward and can be forfeited at any point, and if the marijuana conviction is invalidated, he can get credit for that service on his life sentences, even at that point.

If there are no further questions, thank you.

William H. Rehnquist:

Thank you, Mr. Boyle.

The case is submitted.