Pace v. DiGuglielmo – Oral Argument – February 28, 2005

Media for Pace v. DiGuglielmo

Audio Transcription for Opinion Announcement – April 27, 2005 in Pace v. DiGuglielmo

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John Paul Stevens:

We’ll hear argument in Pace against the… the warden.

Mr. Wycoff.

David Wycoff:

Justice Stevens, and may it please the Court:

Mr. Pace, at age 17, was sentenced to life without possibility of parole after being misled by his lawyer and the court.

His right to Federal habeas review depends entirely upon whether his State post-conviction proceedings tolled the AEDPA statute of limitations.

This Court should–

Sandra Day O’Connor:

Well, he… he had a prior round of hearings at the State level on these same claims, did he not?

David Wycoff:

–On different claims, Your Honor.

He had a first, a… under what was called the PCHA in Pennsylvania.

The tolling question here is whether the PCRA petition–

Sandra Day O’Connor:

I know, but the substance of it, saying it isn’t fair to give me life without parole because of what happened, I didn’t understand the plea… he raised that in State court before.

David Wycoff:

–He raised it in the first proceeding an ineffective–

Sandra Day O’Connor:

Yes.

David Wycoff:

–assistance of counsel claim–

Sandra Day O’Connor:

Yes.

David Wycoff:

–related to that and some other claims related to that–

Sandra Day O’Connor:

Right.

David Wycoff:

–in the second proceeding.

Sandra Day O’Connor:

And he… he essentially wants to relitigate the substance of those previous claims.

David Wycoff:

No, Your Honor.

He actually… the first petition raised only an ineffectiveness claim.

The second petition raised a due process challenge to the colloquy, which was not exhausted in the first, raised new evidence to support the claim which Pennsylvania law allowed him to do, and raised a constitutional and State law challenge to the legality of his sentence.

There were new claims in the second proceeding.

Ruth Bader Ginsburg:

–of both claims was, however he dressed it up in… in due process, that I wasn’t told at the time of my sentencing that life meant life without parole.

That was the essence, the core of his complaint the first time around, wasn’t it?

David Wycoff:

Yes, that his lawyer misled him was the first claim, that by telling him he’d be out in 10 to 15 years.

Ruth Bader Ginsburg:

But the… but the essence of it was I wasn’t told that life meant I would never get out of prison.

David Wycoff:

Yes, Your Honor.

Ruth Bader Ginsburg:

Both times.

David Wycoff:

In… in the second he raised that plus that the colloquy itself was defective and that the sentence, the life without parole sentence, was illegal and unconstitutional, apart from the misinformation aspect.

David Wycoff:

So they were different claims.

Let me start with statutory tolling.

Section 2244(d)(2) of AEDPA provides tolling during properly filed applications for State post-conviction review.

Under this Court’s unanimous decision in Artuz, Mr. Pace’s PCRA petition was properly filed.

In fact, the PCRA time bar functions in all material ways like the New York State procedural bar rules at issue in Artuz.

Now, Artuz also identified some types of rules that would prevent an application from being properly filed, for example, the AEDPA successive bar which makes you go to the court of appeals first and get permission before you can actually file in the district court, and it has a screening mechanism to make sure that only petitions with a prima facie chance get filed.

The PCRA time bar is nothing like that at all.

It’s like the State court procedural bar rules in Artuz.

There’s no condition to filing.

You can go and file at any time.

The court, as a matter of law, has to take your petition, has to give it judicial review… yes, Your Honor.

Ruth Bader Ginsburg:

Mr. Wycoff, are you taking the position that this… that Artuz… I thought, frankly, that Artuz had classified within properly filed timely filed and then had a footnote, and it says that there might be some exceptions to a timely filing rule–

David Wycoff:

Yes, Your Honor.

Ruth Bader Ginsburg:

–rule.

And they’re not taking a position about that.

But you quickly said this time limitation falls under the procedural bar label.

David Wycoff:

I’m sorry, Your Honor.

Yes.

This… Artuz said that a time limit without exception, say, in 30 days you must file in 30 days, no exception, or in 1 year, no exceptions… that’s what Artuz called a condition to filing and that you’re either in or you’re out in that rule.

And Artuz, though, reserved the question presented here of whether a time bar with exceptions, like the PCRA time bar… whether that could be properly filed.

And so obviously, Artuz reserved the exact question here.

But what… the analysis of Artuz controls here and shows that this petition was properly filed.

Antonin Scalia:

Well, it depends on what the exceptions are.

If… if… as… here I understand there are three exceptions.

David Wycoff:

Yes, Your Honor.

Antonin Scalia:

And they’re all spelled out in the statute.

David Wycoff:

They’re similar to the AEDPA exceptions.

Antonin Scalia:

Yes.

And… and if you do not plead any of those exceptions when you… when you file, it seems to me it’s not properly filed.

David Wycoff:

Well, there are a couple of responses to that, Your Honor.

David Wycoff:

First of all, in… in terms of Mr. Pace, the Pennsylvania Supreme Court has said it wasn’t at all clear before, roughly, December of 1999 that you actually need to plead those exceptions in your petition.

Now they say you should plead them in your petition, but at the time it wasn’t clear.

Certainly the… the form that the prison provides–

Antonin Scalia:

I don’t care what the Pennsylvania law is.

I mean, it… it seems to me if you have a statute that says it’s untimely unless one of these three exceptions apply, and… and you… you simply file and you don’t say… and it’s clearly out of time without one of the exceptions, and you simply file and don’t say but this exception applies, it seems to me that’s not properly filed, whatever the rule in… in Pennsylvania was.

David Wycoff:

–If… in terms of… to go to Artuz’ analysis, you would have to look at each… the exceptions are… go claim by claim.

You would have to look at each claim and see did you plead the exception for this claim, yes or no; this claim, yes or no.

So again–

Antonin Scalia:

But you haven’t pleaded any of them, none at all.

You just file it–

David Wycoff:

–In that case–

Antonin Scalia:

–several years out of time.

You… you make no assertion that any one of the… of the three specific exceptions applies.

I don’t see how that could possibly be considered properly filed.

David Wycoff:

–Because the court still accepts it, reviews it to see if any of the exceptions apply.

Antonin Scalia:

Ah, that… that’s your theory that… that–

David Wycoff:

And… I’m sorry.

Antonin Scalia:

–Unless it can be rejected by the clerk–

David Wycoff:

Not at all, Your Honor.

It’s not that… that theory at all.

In… in Pennsylvania, the court accepts it and gives it judicial review and reviews it claim by claim to see if any of the exceptions apply.

Antonin Scalia:

–But you haven’t made the claim.

David Wycoff:

Well, that’s what the court would determine.

And presumably in a case like that, the court would be able to dispose of it quickly and–

Anthony M. Kennedy:

What… what does the Pennsylvania court… law now say with respect to claim-by-claim pleading of the exceptions?

David Wycoff:

–The Pennsylvania Supreme Court now has said you should plead in the PCRA petition the exceptions.

Anthony M. Kennedy:

Claim by claim?

David Wycoff:

For each… any claim that you’re raising, yes.

It goes claim by claim.

Stephen G. Breyer:

This problem couldn’t arise again in Pennsylvania, couldn’t it, because they have a 1-year statute of limitations?

Stephen G. Breyer:

So there would be no way that you could be untimely filing within the 1 year that you have to go to Federal court.

David Wycoff:

It… it can arise again, Your Honor, and that–

Stephen G. Breyer:

It can?

How could it–

David Wycoff:

–Yes, it can arise again and… and will many times arise again because consider someone who’s already had his or her AEDPA year pass and then discovers, say, a Brady claim and wants to go back and litigate that.

Under AEDPA, you would have a year to get back into court with that.

Stephen G. Breyer:

–You do.

I thought AEDPA you had to file within a year.

David Wycoff:

Yes.

Stephen G. Breyer:

And then if you miss the year, you’re out of luck.

Period.

David Wycoff:

That’s… yes, but under State law, you only have 60 days to get that.

So someone in Pennsylvania who finds a Brady claim, say, has to get back into State court within 60 days of discovering that.

So his… he… he could go into State court–

Stephen G. Breyer:

I see.

So in other words, he… his conviction is final.

David Wycoff:

–Yes.

Stephen G. Breyer:

60 days runs after his final conviction and then between the 60th day and the 365th day, he has discovered his Brady claim and has not got into court within 60 days.

David Wycoff:

Or he finds it in what he thinks is within 60 days of when he should have found it.

He files his State post-conviction application.

After years of litigation, the court says, you know, you really should have found it 59 days ago, not 60.

Stephen G. Breyer:

And Justice Scalia’s question… I’m interested in this.

It couldn’t arise.

That is, a person who files his State collateral petition more than 365 days after the finality of the State court direct review, that person is out of luck under anybody’s interpretation because more than a year has passed since it became final, i.e., the State direct review.

Am I right or wrong about that?

That’s what’s puzzling me.

David Wycoff:

It… it depends on if there’s a new… if… if there has not been a new triggering date, other than the finality for the AEDPA date, then you will be out of time for AEDPA.

Ruth Bader Ginsburg:

But AEDPA… it doesn’t say 1 year and that’s it.

AEDPA has exceptions.

David Wycoff:

Yes, it does, Your Honor.

Stephen G. Breyer:

The exemptions still could be the problem.

David Wycoff:

Yes.

And in fact, everyone now who has, say, a Brady claim is going to have… under Third Circuit law as it is now, is going to have to come into Federal court and file a protective habeas petition because the odds are very likely that more than a… the AEDPA year is going to run while they litigate this.

Anthony M. Kennedy:

Yes.

We would have to breathe life back into the stay and abey–

David Wycoff:

Yes, Your Honor.

Anthony M. Kennedy:

–But let me ask you this.

Returning to our earlier discussion about pleading a specific exemption–

David Wycoff:

Yes.

Anthony M. Kennedy:

–are there States, do you know, where that is not required and the State court will go through the exceptions even if you haven’t pled them?

David Wycoff:

Well, Pennsylvania actually does that and certainly did it at the time Mr. Pace was litigating.

Anthony M. Kennedy:

Well, but I thought you said Pennsylvania law had changed now.

David Wycoff:

They have said now you should plead them at the petition… in the petition.

Anthony M. Kennedy:

But my… my question is do you know if there are other States where they say, we don’t care if you plead these–

David Wycoff:

I–

Anthony M. Kennedy:

–exemptions specifically or not?

We’re going to look through it and find it for ourselves.

David Wycoff:

–I… I don’t know the answer to that.

I know that was the practice.

In… in fact, Pennsylvania courts still do that.

Antonin Scalia:

And you say that if that’s the case, you can file a… a State… a State claim that is plainly no good and until the State court finally gets around to… to telling you that it’s no good, your… your AEDPA claim is tolled.

David Wycoff:

Yes, while you’re… and the State could easily prevent that by setting up some kind of prefiling requirement for–

Ruth Bader Ginsburg:

But that’s, in… in effect, saying that there is no… that the properly filed, given the Pennsylvania procedure, does not include timely filed.

David Wycoff:

–The… the question of whether it was timely or not is not actually determined until the end of the litigation.

Ruth Bader Ginsburg:

But… but you have just said that the… the court will look on its own to see if there are these exceptions.

David Wycoff:

Yes, Your Honor.

Ruth Bader Ginsburg:

So that there would be no case of an untimely filing in this period when the court was… even if you raised no exception, was going through them.

David Wycoff:

Yes.

Ruth Bader Ginsburg:

There would be no case in which an untimely filing would be included in properly filed because the very fact that the court itself would go through the petition to look for exceptions would take it out of the category.

David Wycoff:

Yes, Your Honor, and exactly the same could be said about Artuz, the procedural bar rules in Artuz, whether someone pled–

Ruth Bader Ginsburg:

But the… the difference was that Artuz ranked timely filing as an ingredient of properly filed, and you say but not in Pennsylvania the way it’s set up.

Timely filing is not an ingredient of properly filed.

David Wycoff:

–Because the State court lets you file it and gives it judicial review and applies it claim by claim.

David H. Souter:

But don’t… don’t you have a… a… sort of a second prong to… to your response?

And I… I wanted to get into this.

You… you have said Pennsylvania will let you file even though ultimately it, you know, may well determine that you… you were out of time and you don’t fall within any of the exceptions.

Well, that’s… that’s an answer.

I’m not sure it’s a strong enough answer to respond to Artuz.

But I thought you had a second part to the answer, and I thought your second part to the answer was in that kind of situation, the Third Circuit practice, the Third Circuit rule is that unless we go through the Pennsylvania process, even if we know from day one that we’re out of time, we think we have a… an excuse, but even though we… we think from day one we’re out of time, unless we exhaust the Pennsylvania process, they will throw us out for nonexhaustion.

And the reason they will throw us out from nonexhaustion, as opposed to going directly to the question whether there is an excuse for nonexhaustion, is because Pennsylvania will actually let us litigate this–

David Wycoff:

Yes.

David H. Souter:

–and not determine it as a threshold matter.

So… so your answer, as I understand it, is Pennsylvania let’s you litigate it, and the Third Circuit requires you to litigate it so that the only reasonable thing for us to do is to litigate it even if you may say in the abstract it’s a purely threshold time question.

And for that reason, there should be tolling.

Isn’t that your argument?

David Wycoff:

Yes, Your Honor.

And it’s… it’s connected to the statutory language.

AEDPA says we’ll toll for properly filed applications.

That… AEDPA is keyed to how much process the State post-conviction courts will give you.

In a… in a State where they say anyone who comes after a year, we won’t give you any review and you’re just out of court, AEDPA says when… that’s not… we’re not going to consider that properly filed.

We won’t toll, but–

Antonin Scalia:

This is putting such a… I mean, the system is not going to work.

It… it’s a rare State system that has an absolute statute of limitation with no exceptions.

You’re almost going to have to inquire into exceptions.

So you’re saying this is a way to avoid… avoid AEDPA endlessly, just keep filing claims that are out of time, and until the court finally gets around to saying it’s out of time, your… your AEDPA time is tolled–

David Wycoff:

–Well–

Antonin Scalia:

–by which time you file another one that’s clearly out of time.

And until that one is resolved… I… this couldn’t be what AEDPA was… was meant to establish.

Anthony M. Kennedy:

And… and if you’re tempted to answer, well, people want to get out so they’re not going to sit around forever, then we’d ask you what about the death cases.

David Wycoff:

–Okay, and that was what I was tempted to answer, and since you said it, I’ll go straight to the death cases.

David Wycoff:

In Pennsylvania, certainly there’s no… a death-sentence prisoner can get nowhere by filing what he knows to be an untimely PCRA petition because Pennsylvania law requires the Governor to sign warrants when the conviction is final and then at every break in the litigation basically after that.

And the PCRA courts cannot grant a stay of execution until after they find that the petition is both timely and meritorious.

So it’s not–

Anthony M. Kennedy:

I’m not sure that would apply to other States.

David Wycoff:

–That’s true.

And I mean, each State can set up a system to… to satisfy its needs.

Pennsylvania could set up a system like the AEDPA successor bar to say you’re not going to be filed at all until we give you permission.

Anthony M. Kennedy:

Under your rule that filing is sufficient, are there any instances of… of frivolous petition where your rule would not apply?

David Wycoff:

Well, I think all the courts of appeal that have… have talked about that have thought… have said that you really shouldn’t start figuring out whether it was a frivolous assertion or meritorious–

Anthony M. Kennedy:

Well, then Justice Scalia’s prediction is… is right.

You just keep filing and filing.

David Wycoff:

–Presumably you could and if there’s someone who wants to do that, which is going to be a rare–

Stephen G. Breyer:

Suppose you lost on that one.

Suppose that you wanted some kind of a… suppose that the majority wanted a standard that would prevent absolutely frivolous filings on the basis of… of statute of limitations.

Would you… what standard would… what… what’s our choice of standards there?

Could we… one, obviously, that the prisoner has to be in good faith.

Another could be he has to be in good faith and there has to be a reasonable argument that it hasn’t run.

Maybe there are others that you’ve thought of.

David Wycoff:

–I think that going down that path is going to open up just a nightmare of… of litigation in Federal court about… if you start talking about good faith and are you… if the State courts deny it, can you still say it was nonfrivolous?

I think all the courts just across the board have tried to avoid that type of thing.

Antonin Scalia:

Try… try this simple rule.

Where you’re dealing with a statute of limitations that has exceptions, it’s not properly filed if you do not assert the existence of one of those exceptions.

David Wycoff:

Two… I have two things to say about that.

One is it creates a problem with Artuz because that type of rule… assuming the exceptions are like the PCRA exceptions which go claim by claim, that’s a claim-by-claim rule which would then create the anomaly that Artuz shied away from, that you look to whether it was a properly filed application, not to whether it was an application with properly filed claims.

The second point is that… is that for Mr. Pace, whatever the merits of that rule may be going forward, it… it can’t be used against Mr. Pace because there was no such requirement in Pennsylvania.

I mean, presumably the… I assume the Federal courts are not going to make up this rule, that it’s going to be up to the State courts to say what their filing–

Antonin Scalia:

Why… why not?

We make up a lot of stuff.

[Laughter]

David Wycoff:

–Well, Artuz talks about you look to the State’s procedural filing requirements.

David Wycoff:

This is a Federal statute and properly filed is given a Federal meaning, but you presumably look to the State filing requirements, as you did in Artuz, to determine what that means.

Now, all of these concerns about delay and so on are the exact same concerns, where there in Artuz someone could file successive petition after successive petition in New York if they want to delay.

It’s just not… it’s not a… it’s certainly not a problem for noncapital cases.

Antonin Scalia:

I thought the whole purpose of AEDPA was… was to prevent delay.

I mean, that’s… that’s what’s… it seems to me counter-intuitive about the position you’re… you’re urging upon us.

Here is a statute that was meant to stop these things from dragging on endlessly.

David Wycoff:

Yes.

Antonin Scalia:

And you tell us don’t worry about these things dragging on endlessly.

David Wycoff:

I’m not… I’m saying AEDPA says come to Federal court within a year.

We’ll toll when you’re in State court if it’s properly filed.

Properly filed, if the States let you file a lot of stuff, we’re going to… comity requires us to allow that, and we’ll toll.

If the States don’t–

Antonin Scalia:

That’s unrealistic if the States allow you to file a lot of stuff.

You’re… you’re saying the only way the States can stop this thing from going on and on and on is to adopt an absolute rigid statute of limitations, no exceptions.

David Wycoff:

–That’s one way or a prefiling requirement.

Antonin Scalia:

Give me another way.

David Wycoff:

The AEDPA prefiling requirement where you go to the court and you say, I’d like to file this petition, tell me if I can, and the court says, 30 days later, yes or no.

That’s–

Anthony M. Kennedy:

Oh, but if it takes a year a later, then we–

David Wycoff:

–Well, yes.

If… the AEDPA–

Anthony M. Kennedy:

–Then you just repeat the process one step backward.

David Wycoff:

–No, Your Honor.

I think the courts are… are… the Federal courts are capable of telling the difference between an application for State post-conviction relief on the one hand and a motion for leave to file an application on the other hand.

In fact, the Seventh Circuit in… in the Smith v. Walls case and the Tinker v. Ward case that we cited in our brief had exactly that distinction between an Indiana rule which had a prefiling requirement and an Illinois rule–

Stephen G. Breyer:

What about a… a rule requiring good faith or reasonable argument in death cases?

In all the other cases, there’s no incentive to do this endless filing, and in death cases, there is.

So in those death cases, we would insist that it is not properly filed if it’s out of time unless the prisoner in good faith and with a plausible argument, a reasonable argument thought it was in time.

David Wycoff:

–I suppose that… I mean, that could be a construction of the statute as long as you let people… people are going to come to Federal court first and get… for stay abeyance if you do that.

If you don’t know until the outcome years later whether you were tolling or not, that’s going to cause everyone to file protective filings.

Antonin Scalia:

Do you think that’s a reasonable interpretation of properly filed and… and what I proposed to you is not a reasonable interpretation of properly filed?

David Wycoff:

Well, I was just–

Antonin Scalia:

How can you… how can you tease that elaborate system out of… out of the words properly filed but you cannot tease out of it–

David Wycoff:

–The–

Antonin Scalia:

–simply showing on its face that there’s either an absolute statute or that one of the exceptions to the statute exists?

David Wycoff:

–The problem with that in terms… is that it conflicts with Artuz’ idea that the… any rule that’s a condition to filing has to go to the application as a whole.

Stephen G. Breyer:

Well, I don’t think it actually… I mean, in… I think they’re about equal, aren’t they, in respect to language?

And the argument against the other one is that prisoners are going to get mixed up about it.

They… they don’t know exactly what they’re supposed to put.

The argument against the one I proposed is it adds complexity of decision-making.

Sort of between the two, it’s rather hard to see.

David Wycoff:

Just–

Stephen G. Breyer:

They each have their problems.

David Wycoff:

–Just in terms of… of policy, I think any rule you adopt that’s not mechanical and doesn’t let people know on the front end whether they’re tolling or not, there’s going to be floods of protective filings.

Now, the… the rule like… a rule which is… which… where they know going in and whether they’re going to be tolled or not, then they can say plead… litigate in State court becoming… before coming to Federal court.

And Duncan v. Walker was very clear that the court doesn’t want lots of people filing prematurely.

If I could, I’d like to turn to equitable tolling.

As Chief District Judge Giles found, that it would be an extraordinary deprivation of rights and patently unfair to deny tolling in Federal review here, he found… Judge Giles found that if Mr. Pace had filed a Federal habeas petition instead of his PCRA petition, Judge Giles would have dismissed it and required him to do exactly what he did, which is to seek State remedies under the PCRA.

As Judge Giles found, Mr. Pace acted diligently and appropriately under the circumstances.

It seems this is a clear case for equitable tolling.

This is a case where–

Antonin Scalia:

The circumstances included the fact that he sat on this thing for 3 years.

He could have brought it 3 years earlier, couldn’t he?

David Wycoff:

–You’re talking about the time from the first PCRA–

Antonin Scalia:

The claim, yes, that’s right.

David Wycoff:

–Yes, Your Honor.

Antonin Scalia:

So… when… when you… when you fold that into the circumstances, it doesn’t seem to me an overwhelming case for equitable tolling.

David Wycoff:

I have, I think, four responses to that.

First, Mr. Pace was not sitting on his hands for these 4 years.

This is a man who entered prison at age 17, barely educated, barely literate, drug-addled.

David Wycoff:

This is not someone who was prepared to litigate on his own when he came into prison.

This is someone who… whose legal papers were destroyed by the prison.

This is someone who was without counsel for that entire time that you’re talking about.

This is someone who had very limited access to a law library throughout that time.

Mr. Pace spent those years teaching himself how to do law which he–

Antonin Scalia:

–take a whole lot to figure out that you have a claim where your lawyer told you… you weren’t going up for life and it turned out you were sent up for life.

David Wycoff:

–In fact–

Antonin Scalia:

I mean, what does it take if… can a 17-year-old figure that something has gone wrong here?

David Wycoff:

–Well, in fact, that… that claim was litigated… litigated in the first petition, and in fact, he didn’t think of that.

If you look at his pro se PCHA petition, he didn’t know that was a claim.

It’s a… it’s a form that he filled out and handed in and appointed counsel came up with that claim in the first post-conviction proceeding.

This is much more complex than that.

If you look at his briefs, which are in the joint appendix, Pennsylvania had a very complex system of law here where they had statutory bar rules but they had judicial exceptions to those rules.

And it’s not an easy matter for someone to figure that out.

Mr. Pace educated himself.

Just compare the pro se pleading filed in 1992 to what he filed in 1996, and you can see what he did during these 4 years.

The other… the other… just… my light is on, but just the other things I’d like to mention about that are that keep in mind, during this time there were no time limits on filing in either State or Federal court.

The commonwealth has never alleged any prejudice from this time, and there’s never been any allegation that Mr. Pace acted in bad faith and with any… any intent to delay.

In fact, this is someone who wanted to get his claims heard, wanted to figure out how to do it right, and did figure out how to do it right in the end.

I would like to reserve the rest of my time.

John Paul Stevens:

You may.

David Wycoff:

Thank you.

John Paul Stevens:

Mr. Eisenberg.

Ronald Eisenberg:

Justice Stevens, and may it please the Court:

I’d like to address the structure of the Pennsylvania filing deadlines for post-conviction review because I think they shed some light and need some discussion here.

What Pennsylvania did was to establish a 1-year, flat time limit that applies to everybody.

1 year from conviction.

It’s automatic.

It doesn’t matter what the nature of your claims are.

It doesn’t matter when you discovered your claim.

Ronald Eisenberg:

In order to comply with that time limit, all you have to do is file a post-conviction petition within 1 year of finality.

The rest of the statute is essentially a separate set of filing deadlines for petitioners, for successive petitioners, for people who either have already had one round of post-conviction review or who haven’t bothered to pursue it.

Those people, said the legislature, are only going to be entitled to further post-conviction review, to additional rounds of post-conviction review if they fall into a particular class of claim that couldn’t have been raised earlier.

And… and the legislature identified three classes that mirror the three provisions in the Federal statute of limitations.

And if the petitioner falls within any of those classes, he then has 60 days from the time that that claim arose in order to come into court.

Now, if a petitioner files a post-conviction petition and he’s within a year of finality, those so-called exceptions don’t come into play.

They don’t apply.

He doesn’t need to meet them.

Those are for the second petitioner.

So what Pennsylvania really has is a two-level system of statutes of… of filing limitations.

And of course, in order for the court to determine whether the petitioner has met the filing deadline, he has to look at these three classes for someone who has passed 1 year from finality.

That’s not an exception in the way I think that the petitioner and some of the lower courts have used the term at all.

These are simply different kinds of filing limits.

And of course, the court has to look at the statute and the nature of the claims to see whether review is available and to see whether the petitioner has sought review within the proper time.

Nothing about that system makes those so-called exceptions not time limits.

They’re still time limits, and if you don’t file in time and come within one of those classes, then the second petition, successive petition time limits don’t apply to you and you’re out of time.

Anthony M. Kennedy:

Well, but if we accept your position, it seems to me that the State prisoners are going to have to go once to Federal court and then they’re… they’re going to run into an exhaustion requirement.

Ronald Eisenberg:

Well, they’re not going to run into an exhaustion requirement, Your Honor, because if they’ve already been through one round of State post-conviction review, then they are unlikely to be able to exhaust more claims because there’s a… there’s a–

Anthony M. Kennedy:

Well, we’re–

Ronald Eisenberg:

–1-year time limit.

Anthony M. Kennedy:

–we’re assuming a late-discovered claim that’s within AEDPA.

Ronald Eisenberg:

That’s right.

And so the question is whether… and what petitioner is really saying is that the AEDPA 1-year time limit should be suspended essentially indefinitely as long as the petitioner wants to argue that he may have some late-discovered claim in State court.

Stephen G. Breyer:

It… it’s my… I still have a feeling that this is a limited universe.

Now, my reason for thinking that is that the Federal statute says you have to file within a year of… and then it lists four dates.

And the middle two are special new cases, unusual probably.

The first one and the fourth one are the important ones.

The first one is final in the State courts, your first round, and the fourth one is newly discovered evidence.

Now, my guess is most States also allow you for collateral… to file collateral relief in those two circumstances.

And in most States probably you get nearly a year from the same kind of event.

Stephen G. Breyer:

So if you go after the year, you’re out of luck in Federal court.

If you’re within the year, you’re probably okay for the State.

But there are a few States that have… maybe Pennsylvania… just 60 days from one of the events, newly discovered evidence, but a year for the Federal.

So we’re talking about people who file between 2 and 12 months.

That… that must be a pretty limited class.

Ronald Eisenberg:

It’s… it’s not, Your Honor.

Stephen G. Breyer:

It’s not?

Ronald Eisenberg:

And… and the reason that it’s not–

Stephen G. Breyer:

But have I got it right?

Have I got this complicated thing right?

Ronald Eisenberg:

–Only… it’s… that is true only for successive petitioners.

For people who aren’t satisfied with the round of direct appeal and a round of first… of post-conviction review in State court.

And so the question is whether the Federal statute should be interpreted in a way that essentially writes off the State’s time requirements for the successive petitioner so that we can make sure that the successive petitioner can exhaust whatever new claims he wants to come up with in State court before he comes to Federal Circuit.

Stephen G. Breyer:

Now, let’s–

Anthony M. Kennedy:

What do I do it in a State where there is a plausible close question of whether or not the successive petition is barred in the State court?

And I interrupted Justice Breyer, but I… I think it’s along the same line.

Ronald Eisenberg:

The… the general rule… and this is implicit I think in the fact that Congress passed a statute of limitations.

The general rule is that the petitioner is entitled to whatever he automatically gets in State court in order to exhaust a universe of claims, not all possible claims, but whatever claims can be exhausted within those guaranteed rounds of review.

At that point, he should go to Federal court.

If new claims arise after that, then Congress specifically provided for them in the second and successive petition procedure that it has in the Federal statute.

The way that would interact–

Anthony M. Kennedy:

But no… there’s still an exhaustion requirement.

Ronald Eisenberg:

–The way that would interact with… for exhaustion purposes with a State like Pennsylvania is this.

The petitioner finishes his direct review.

He finishes his post-conviction review.

He has a set of clearly exhausted claims.

He files a fully exhausted petition in Federal court.

No Rose v. Lundy problem.

If a new claim arises at that point, then he has to go to State court and try to exhaust that claim in State court.

He can do that while a Federal petition is pending or even after a first Federal petition has already been disposed of.

Ronald Eisenberg:

In fact, he may have to because the claim may not arise before the end of litigation in Federal court.

When he gets to State court, he’s either going to be deemed timely or not.

Actually the fact that we have a 60-day time limit as opposed to a whole year helps him because it helps make it clear to him that he’s got to come to State court at a point where he’s really got a long time left to deal with Federal court because he’s going to–

David H. Souter:

But isn’t there a wrinkle to this?

Isn’t the wrinkle that even in cases in which you and I might say patently he’s going to be out of time if he goes back to Federal court, the Third Circuit is requiring him to go there anyway, go through the formality of formal exhaustion, if you will, before they’ll consider it?

And isn’t that a basis at least for equitable tolling?

Ronald Eisenberg:

–With respect to your argument, the answer is absolutely not.

First of all, as you have just observed, that’s really an argument that goes to equitable tolling.

Even petitioner doesn’t bring in the Third Circuit law with respect to statutory tolling, with respect to understanding the… the language of the statute.

As to equitable tolling, however, the factual premise is wrong.

It’s not true that the Third Circuit forces the defendant to go back to State court no matter what.

In fact–

David H. Souter:

Okay.

Help me… help me out here because I… I just don’t remember well enough.

I thought that’s what Judge Giles was getting at when he said, you know, he would have been thrown out if he hadn’t gone through the State procedure.

So help me out.

Is that what he was getting at or not?

Ronald Eisenberg:

–That is what he was getting at but at a limited point in time, and the whole question for equitable tolling purposes was at what point in time.

Nobody argues that the Third Circuit still is making everybody go back and do it no matter what.

What the petitioner argued was that the Third Circuit case law, as of 1997 when he was first starting his second round of post-conviction review in State court, as of that time, he says, the Third Circuit case law said you have to go back no matter what even though Pennsylvania has a… this new statute of limitations.

That’s not what the Third Circuit says, though.

And all the cases that the petitioner relies on primarily… he cites a… a case called Doctor, a case called Banks, a case called Lambert.

All of those cases were decided before the Pennsylvania courts began applying the new jurisdictional time bar in State court.

David H. Souter:

If that means the petitioner was wrong, doesn’t it also mean that Judge Giles is wrong, and if Judge Giles can’t figure it out, isn’t there a pretty good argument that the petitioner ought to get equitable tolling?

Ronald Eisenberg:

Well, there are a number of problems with the equitable tolling, Your Honor.

But even taking that main one, that the petitioner made a mistake of law, that he didn’t figure out correctly whether he was supposed to go back to State court, even on that point, Your Honor, that’s not grounds for equitable tolling.

You take a risk when you make a legal argument that it will fail.

This legal argument was controlled entirely by State law, and what the Third Circuit, as opposed to Judge Giles who was reversed by the Third Circuit said, is that you have to look back to State law.

What the Third Circuit has said… and the… one of the cases cited in our brief at page 49 is Walker v. Frank.

Chief Judge Becker said no, we’re not going to give equitable tolling to these defendants because at the very latest… at the very latest… they had to know by December of 1997 that they were going to be time-barred in State court.

Ronald Eisenberg:

This petitioner filed–

David H. Souter:

But… but Judge Giles didn’t understand it either.

Ronald Eisenberg:

–Judge Giles didn’t say that… that the State law would never in the future be applied to these defendants.

He said at this early time it was still unclear whether it would be applied.

David H. Souter:

So far as this case is concerned, yes.

And… and so if Judge Giles got it wrong, isn’t there a pretty good argument for equitable tolling when the petitioner gets it wrong?

Ronald Eisenberg:

What there is is an argument that he had an argument to make in Federal court that he was not… that he was still going to have the opportunity to go back to State court.

But the problem is that Federal courts can’t decide for the States how their time bars are going to be applied.

And if instead they said–

David H. Souter:

But… but this argument is not trying to decide for the States.

This argument basically is if nobody can figure it out, including a Federal district judge, at least give me the benefit of the doubt with equitable tolling.

Ronald Eisenberg:

–It’s not true that nobody could figure it out, Your Honor.

In fact, all the cases that the petitioner cites in his brief from Federal district court judges who were sending defendants back to State court during this period because they said, well, maybe you’ll get exhaustion anyway, maybe you’ll be able to exhaust claims, of those cases that are cited in the brief, most of them are from the same one judge who kept saying the same thing over and over.

Several of the other cases didn’t even talk about the State time bar, and at that same period of time, there were other district judges who weren’t sending defendants back, who were saying there’s a new State time bar, you’re barred in State court, and therefore, if you want to raise this claim in Federal court, you can, but you face procedural default.

David H. Souter:

But if he had gone into the Federal court he went into, and he had not gone through this State procedure, he would have been turfed out.

Ronald Eisenberg:

You can’t get equitable tolling, Your Honor, our position would be–

David H. Souter:

Well, answer that question–

Ronald Eisenberg:

–I’m sorry.

David H. Souter:

–before you tell me what the consequence is.

Ronald Eisenberg:

No.

That’s what Judge Giles said many years after the fact.

Do we know that’s what Judge Giles would have ruled at the time?

Perhaps.

But there are other judges, Federal judges, who were ruling otherwise at the time, and the Third Circuit–

David H. Souter:

Well, I mean, don’t… don’t we have to take Judge Giles’ statement as being a statement in good faith unless there is a pretty darned good reason not to?

Ronald Eisenberg:

–The point is, Your Honor, that that’s not the test for equitable tolling.

There are all sorts of arguments that a defendant can make about why the law is unclear.

It wouldn’t have had to depend on the Federal court’s understanding of this particular State law.

A defendant could come along and he could say, well, I’m unclear about the application of (d)(2).

I’ve got circuits like the Ninth Circuit who tell me that even if my petition is blatantly untimely in State court, it still tolls.

Ronald Eisenberg:

I filed, knowing I was untimely in State court, because the Ninth Circuit tells me that I’m still going to get tolling, and now you tell me I’m not going to get tolling?

Stephen G. Breyer:

–All right.

Let’s suppose to get away from it… can I go… are you finished with equitable tolling because I want to go back to–

Ronald Eisenberg:

Well, I… I have… there are some… really some… some threshold problems with equitable tolling that–

Stephen G. Breyer:

–I… I have a general question which is not Pennsylvania.

I’ve looked up or got a rough idea of the statute of limitations for a first petition in many States, and most of them are a year or more.

So there’s no problem.

But 11 have less than a year, and in particular, Oklahoma has 3 months apparently.

And Oklahoma is… a lot of death cases come out of Oklahoma.

So what rule would… where I have to have… I focus on Oklahoma for the reason that I think this has bite only in death cases because I don’t see why anybody would want to abuse the system except in a death case.

But there are a lot there.

Now, am I supposed to say in Oklahoma which has the 90 days but exceptions, that where somebody has filed a petition in State court, let’s say, on the 180th day, and he thinks an exception applies, is he supposed to also run to Federal court and file a protective petition which could well have been dismissed on exhaustion grounds?

What’s he supposed to do and how is he supposed to know what to do?

And one system that might work is Justice Scalia’s idea.

Ronald Eisenberg:

–Well, it’s–

Stephen G. Breyer:

Another that might work is… is requiring in death cases that it be a… a plausible ground or something like that.

I want to know your opinion of how to deal with that circumstance.

Ronald Eisenberg:

–It certainly shouldn’t be a plausible ground test, and even the petitioner agrees with that position, Your Honor.

And it certainly would work if we adopted, as I think Congress did, a system like the one that Justice Scalia spelled out because then the defendant knows.

And I’d like to get back, as I was discussing with Justice Kennedy, to what the defendant knows.

He knows that if he’s outside the time that he’s guaranteed automatic review, whether direct appeal or State review, State post-conviction review, that his chances of exhausting more claims in State court–

Stephen G. Breyer:

Actually most prisoners are not represented, I don’t think, at this stage.

They… they haven’t a clue about the word exhaustion, and they haven’t a clue about the statute of limitations.

So they file a… a paper in… in the State court, and they say this roughly is what my problem is.

Is that what happens, or are they all quite educated?

Ronald Eisenberg:

–Your Honor, the… the Congress that passed this statute of limitations is the same Congress that made the decision about whether habeas petitioners would be appointed counsel or not.

So to say that we can’t really apply the statute of limitations because it would be unfair as to those petitioners who are unrepresented would be essentially to undercut the statute of limitations–

Stephen G. Breyer:

I’m trying to get from you what is your opinion of a practical approach to this problem in Oklahoma, say.

Ronald Eisenberg:

–The practical approach to the problem is to look at the statute that says you have a year.

If you file your petition within that year, whatever you’ve got at the end of that year, you can take to Federal court and be confident that it’s exhausted.

Ronald Eisenberg:

If you want to do something after that year, you can’t be confident anymore.

All you have to do is… is count a year.

Now, if something comes up after that time, you’re supposed to go to State court first, even if you’ve got something in Federal court.

This statute of limitations isn’t supposed to be interpreted in order to make the Federal successive petitions standard moot and unnecessary.

It exists for a reason.

So if a… if a claim arises at a later point, after you have finished your guaranteed review in State court, go back to State court, whether or not you’ve got something pending in Federal court.

Don’t put that new claim in with your old claims in Federal court because then you have a mixed petition.

If you get exhaustion in State court, whether you’re timely or untimely, you’re going to exhaust.

You can then go back to Federal court with a request for a successive petition.

It… that’s what you have to do and that’s appropriate because that’s how Congress set up the statute, with the 1-year filing deadline and… and a provision for successive petitions.

John Paul Stevens:

May I ask how you would handle a case that is a successive petition, a late… a recently found claim, and the… filed beyond the statute of limitations but the State has three exceptions to the statute, but it does not require that the… the petitioner identify the exception in the petition?

It just allows it for the judge to decide.

Would there be tolling during the period in which the judge decided whether or not the petition was timely in your view?

Ronald Eisenberg:

No, Your Honor, because all the court is doing is deciding whether the time bar applies, and in order… in a State that has those kind of categories, what the court is, in effect, doing is deciding what kind of time limit applies to this particular petition.

John Paul Stevens:

And even if it takes a year or so to make that decision, you’d say no tolling.

Ronald Eisenberg:

Your Honor, that’s really true of every kind of statute of limitations issue that can come up.

Take away those three exceptions.

Just have the 1-year flat time bar.

Does that mean that the State court isn’t going to have to take some time to look at it and decide?

What if there’s a prisoner mailbox question?

What if there’s an amendment question of the type that this Court just granted cert on last month in Mayle v. Felix?

What if there’s a question about how to compute–

John Paul Stevens:

And in all of those questions, you’d say there would be no tolling in order to find out whether it was timely or not.

Ronald Eisenberg:

–That’s right because during that time, the State court is deciding on timeliness, and if it’s untimely, it was untimely as of the point of filing.

That’s what makes it a filing requirement.

You take your claim and you file it–

John Paul Stevens:

But what about the reasoning in Artuz that the application was… if it turns out later it was timely, it would have been properly filed?

Ronald Eisenberg:

–I’m sorry.

I… I think I understand Artuz to have said that if the application was untimely, then it was not properly filed and it was not properly filed from the get-go, Your Honor.

The question that was reserved in Artuz is whether something about exceptions changes that statement in Artuz.

Ronald Eisenberg:

And my response is that certainly nothing about the kind of exceptions that were present in this case changed the response.

John Paul Stevens:

No, but if I understand you correctly, you’re saying that even if it takes the judge 6 months to decide whether it was timely, if he ends up with the conclusion that it was not timely, there would be no tolling for that 6-month period.

Ronald Eisenberg:

That’s correct, Your Honor.

Now, in Pennsylvania, of course, all you have to do to be timely is file within the 1 year.

And whatever you’ve exhausted is done.

That… I’d like to go from that into expanding more on the equitable tolling because I think that that plays in here.

This defendant had two rounds.

The first round was 4 years, not even just 3, but I believe closer to 4 years before there was a filing deadline in either State court or Federal court.

Now, when you decide to wait… he didn’t have a filing deadline, but when you decide to wait, you take your chances.

There’s a rule that’s even more immutable than time limits or jurisdiction, and it is that things change.

When you wait, you take the risk that your evidence may change, the facts may change, the law may change.

That’s what happened to this defendant while he sat and did nothing.

He says he was learning the law during that period.

Well, then would it… is it just 4 years?

What if it had taken him 8 years or 12 years to learn the law?

He had the filing deadline that came up.

He never claimed that he didn’t understand what it was.

He could have beaten any of those filing deadlines in State or Federal court.

He says, I have no incentive for delay.

I’m not a capital defendant.

All I wanted was a speedy resolution of my claims.

But in that case, he didn’t need a filing deadline to make himself come to court.

The fact is that there are thousands of cases in which noncapital defendants file these kinds of late petitions, and the State courts are trying to deal with them.

And this is the way that Pennsylvania chose to try to deal with the problem in State court, in its State courts, not just for capital cases, but for noncapital cases.

Antonin Scalia:

Why… why are there thousands of cases in which noncapital defendants file this type of case?

What… what incentives do noncapital defendants have to drag it on?

Ronald Eisenberg:

The incentive that they have to drag it on is that they may come up with a new legal theory that attracts a… a court that they didn’t present before, that new facts may come up, may arise that they try to argue.

That’s what this defendant did, although they weren’t really new.

They were facts that were available to him as of the… the day of his guilty plea in 1986.

He claimed that they were new.

Ronald Eisenberg:

And if there’s no cost to doing that, if in fact there may be a benefit to doing that, then why not?

If–

Anthony M. Kennedy:

It seems… it seems intuitive also that the prosecution’s witnesses will be difficult to locate and so forth.

Has… has there been anything written about that, about prejudice to the prosecution from… from delay, or is it just something we–

Ronald Eisenberg:

–Well, it’s certainly something that–

Anthony M. Kennedy:

–we take judicial notice of?

Ronald Eisenberg:

–It’s certainly something that any prosecutor would tell you, Your Honor.

This… this crime occurred 20 years ago in 1985.

And this was a relatively simple case.

A police officer came on to the scene while the defendant was bashing the head of the victim with a nightstick.

But even in a simple case, you’re going to have problems of proof, and the party with the primary problems of proof is the party with the burden of proof, and that’s the prosecution.

So, of course, there’s going to be a problem for the prosecution, and that’s why we adopt… one of the reasons that we adopt this kind time limit.

Even once the petitioner did come back to State court, though, Your Honor… and this gets back to the questions that Justice O’Connor was raising initially… he raised essentially the same claims.

He says, well, this time around, I put them in a different guise, different facts in support of my claim about my guilty plea, different legal labels.

Yes, but all in the context of… of ineffective assistance because the only way he could get into court a second time for a second round of post-conviction review in Pennsylvania was to say that my lawyer at my first round of State post-conviction review was ineffective.

He didn’t attach these affidavits from my mother and father.

He didn’t call it due process instead of whatever else he called it.

Now, petitioner could make those–

David H. Souter:

Well, he also raised an… an entirely different claim, didn’t he?

I mean, it goes to ultimately the same point, but he raised the claim that the court had not engaged in an adequate colloquy–

Ronald Eisenberg:

–The reason the colloquy wasn’t adequate is precisely for the same reason that he was attacking his lawyers, in the petitioner’s view, that it didn’t explain to him the meaning of a life sentence.

David H. Souter:

–Right.

But that… the… I mean, it’s a different claim.

The judge has an independent responsibility.

It’s not the lawyer’s responsibility.

Ronald Eisenberg:

Your Honor, that’s a claim that was waived if it was not presented in the first–

David H. Souter:

That… that may be, but it is a different claim.

Ronald Eisenberg:

–But… but–

David H. Souter:

It is not the claim of ineffective assistance.

Ronald Eisenberg:

–But the only way that the petitioner could exhaust that claim in State court on a second round of post-conviction review would be to put it in terms of ineffective assistance of first post-conviction counsel.

Ronald Eisenberg:

And, of course, he can’t then take that claim and come to Federal court because claims of the ineffectiveness of post-conviction counsel are not cognizable on Federal habeas review.

So not only did he wait 4 years when he had no filing deadline impediments to come to court, but he then raised in State court claims that he couldn’t have turned into exhausted Federal claims anyway in order to add to what was available to him, to the universe of claims that were available to him after his initial round of State post-conviction review.

And we’re talking about equitable tolling for somebody who only has a problem because of his own inaction for 4 years and who even then spent another 3 years in State court on claims that he couldn’t bring to State court, and even then, in the face of developing State law about the time bar, refused to look at it.

So not only did we have a statute that says you’re in trouble, you’re time-barred now–

John Paul Stevens:

Just sa a matter of curiosity, is the transcript of the plea colloquy still available?

Ronald Eisenberg:

–Yes, Your Honor.

It’s in the appendix.

And what the judge–

John Paul Stevens:

And was there the constitutional violation he alleges?

Ronald Eisenberg:

–What the judge said three times is, you understand that your sentence will be life, and the petitioner said yes each time.

Now, his claim later on… and he’s right.

He didn’t think that was his claim when he filed his first post-conviction review petition in 1986.

He just thought his claim was that his plea was involuntary.

Once he got counsel appointed, it turned out that his claim was, oh, my lawyer didn’t specifically… neither my lawyer nor the judge specifically told me that by life they meant life as opposed to something less than life.

John Paul Stevens:

The irony of this whole proceeding is it seems to me it would be a lot easier to decide the merits of that claim if the transcript is available than to get into all these issues–

Ronald Eisenberg:

Well, but, Your Honor–

John Paul Stevens:

–we have today.

Ronald Eisenberg:

–I’m sorry.

That’s what happened.

That claim was litigated on the first round of post-conviction review and the State courts rejected it because of the transcript of the colloquy.

The defendant could have taken that claim to Federal court in 1992.

He just didn’t.

Now–

John Paul Stevens:

Of course, he’s a 17-year-old without any learning in the law.

He probably didn’t realize there’s any requirement that these things have to appear in the transcript.

I mean, that’s understandable.

Ronald Eisenberg:

–He… he knew it appeared in the transcript.

That was the basis of his claim in… on State post-conviction review.

He had not one but two lawyers appointed for that review and he litigated it on up through the State highest court.

But even when he came back in 1996, he knew the statute was there.

Ronald Eisenberg:

He’s never claimed he was confused by the new time bar.

He says, I thought I would get some exceptions to it.

But then the State court came and said, no, it’s jurisdictional, no exceptions.

Defendant didn’t do anything.

It was 1997, still 2 years before he filed in Federal court.

Didn’t take note of that State… he took note of it.

He acknowledges in his pleadings that he knew about it, but he decided not to go to Federal court anyway.

More… more cases come out from the State courts, even the decision in his own court… in his own case from the State’s highest court.

Even when we get to July of 1999 and the State supreme court denies review on the timeliness question in his own case, the petitioner says, even then how was I supposed to know that I wasn’t going to get some kind of exception to the State time bar?

I didn’t know that until the next month when another case came out from the State supreme court.

This was the third or the fourth from the State supreme court in somebody else’s case.

Only then in August of 1999 did I finally know that I was time-barred, meaning I knew then that I had never been getting any tolling, that for the last 3 years, I didn’t have 1 day of tolling on my Federal claims.

And at that point did he then go to Federal court?

Even then he didn’t.

Even in August 1999 when the petitioner says, finally I know that I’ve been out of luck for the last 3 years, that I’m 3 years late to Federal court, does he rush in then?

No.

He waits another 5 months after August of 1999 to finally come to Federal court and say here’s my petition, here’s the claims that I’ve been working on and that I have litigated in State court.

That’s not equitable tolling, Your Honor.

It’s not equitable tolling under the circumstances of the specific circumstances of this case, and it’s not equitable tolling in general when a petitioner claims essentially I have a mistake of law, I thought that I would win, I knew there were arguments against me, I knew I might lose those arguments, but I really thought I could win, and therefore you should give me equitable tolling while I pursue them.

John Paul Stevens:

Thank you, Mr. Eisenberg.

Ronald Eisenberg:

Thank you very much.

John Paul Stevens:

Mr. Wycoff, you have about 4 minutes left.

David Wycoff:

Several things.

First of all, the respondent said that in the second petition Mr. Pace only presented State law, ineffective assistance of post-conviction claims, which are not Federal claims.

That’s absolutely not true.

He presented the ineffective assistance of post-conviction counsel as a waiver-overcoming mechanism not as a substantive claim for relief.

The substantive claims were due process claim, ineffective assistance of counsel, and new facts which needed to be exhausted under Third Circuit exhaustion law.

Second, respondent suggested and… and the Third Circuit also suggested that State law somehow became clear in mid-December 1997 when the Superior Court, which is Pennsylvania’s intermediate court, decided a case called Alcorn.

Alcorn was the first case to apply the time bar.

But the Third Circuit itself, after Alcorn in the Lambert case, held that the… the statutory language of the time bar is not dispositive and you have to exhaust even if you don’t meet one of the statutory exceptions because the court may fashion judicial exceptions just like they did for all the other procedural bar rules.

David Wycoff:

In fact, Pennsylvania in the Lambert case, in their opposition to the certiorari petition in May of 1998, said that that’s a correct statement of Pennsylvania law, that there are judicially created exceptions, including the miscarriage of justice exception which will probably apply to the time bar, just like they applied to the other statutory bars.

So Alcorn did not, even if it could have, since it’s an intermediate court, it did not clear up the state of the law.

The law did not become clear as to the specific things that Mr. Pace alleged, which is the miscarriage of justice exception under Pennsylvania law and the illegal sentence exception, judicially created exceptions to bar, were not rejected by the Pennsylvania Supreme Court until July of… I’m sorry… August of 1999, which is… by that time Mr. Pace was already out of State court so those… the law became clear in State court after he was already done litigating.

The Third Circuit did not actually find the statutory language of the PCRA time bar dispositive of the exhaustion question until March of 2000.

The district courts, not just Judge Giles, Chief Judge Giles’ 20 years experience on the bench, not just him, lots of district courts send people back to exhaust during this same time period.

State law was unclear.

State law appeared to provide remedies and possible merits review.

Because the State law was unclear, Third Circuit exhaustion law required petitioners like Mr. Pace to go back and exhaust.

And he did exactly what the circuit law required of him.

As a matter of equity, the court cannot punish someone.

A Federal court can’t say, do X, and then after that person does it, say, sorry, you’re out of court.

It’s not fair and it shouldn’t happen here.

As to statutory tolling, I just want to… the… the Court I think can just easily decide this case just by reaffirming the central holding of Artuz which is when a State court allows you to file, gives your filing judicial review, applies a bar rule on a claim-by-claim basis, that was a condition to obtaining relief on claims in the petition.

It’s not a condition to filing the petition itself.

And if the State court eventually holds all your claims are barred, as they did in Artuz, the petition is, nevertheless, properly filed and should toll AEDPA’s statutory… under AEDPA’s statutory tolling provisions.

If there are no further questions.

John Paul Stevens:

Thank you, Mr. Wycoff.

The case is submitted.

The honorable court is now adjourned until tomorrow at ten o’clock.