Walker v. Martin – Oral Argument – November 29, 2010

Media for Walker v. Martin

Audio Transcription for Opinion Announcement – February 23, 2011 in Walker v. Martin

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John G. Roberts, Jr.:

We will hear, argument next this morning in Case 09-996, Walker v. Martin.

Mr. Marshall.

Todd Marshall:

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

Charles Martin never adequately explained why he waited more than 5 years to present additional claims to the California Supreme Court.

As such, it was no surprise that these claims were rejected as untimely.

California employs a habeas corpus timeliness rule that merely requires reasonable diligence and disclosure.

The rule is adequate under this Court’s longstanding precedents in the Ninth Circuit’s decision to the contrary should be reversed.

Ruth Bader Ginsburg:

What about the charge that, yes, we can agree with you that in general 5 years seems like a long time, but we have a brief from the Habeas Corpus Resource Center that says that in the 5 to 6-year delay category, 62 percent are dismissed on the merits, and that you can’t tell; sometimes they do have merit, sometimes they do it as time-barred, and there is no rationale to when they do one or the other.

Todd Marshall:

Three brief responses, Your Honor.

The first is that to measure summary denials, you can’t tell from a summary denial ruling what the Court was thinking about the time of delay.

The second point is that delay in California is only half the equation.

In California there is a substantial delay and there is also the justification portion.

So persons who operate under substantial delay still have an opportunity to justify that delay and gain the desired review.

John G. Roberts, Jr.:

What was the third?

Ruth Bader Ginsburg:

Would they have to?

Would they have to justify the delay first?

I thought there was something about, well, if the time question is more difficult, the merits are easy, there’s no merit, so we just decide this–

Todd Marshall:

California’s policy is to take a first look at a habeas petition and determine whether it has a prima facie case or whether procedural bars are apparent.

A court that is denying a case on the merits isn’t necessarily saying the matter was timely, and courts should be permitted to reach whatever is the most judicially efficient method of resolving such a question without it being held against them.

Sonia Sotomayor:

So basically you are taking the position or you are conceding that the California courts are not consistent in their application of the timeliness rule?

Todd Marshall:

No.

Sonia Sotomayor:

Your brief doesn’t even try to defend that position.

Are you conceding that there is inconsistent application of the rule?

Todd Marshall:

No, Your Honor.

The point that we are making is that when you look at a rule, whether you apply it or not — or whether you impose it or not doesn’t mean you are not applying the rule.

For example, when trial courts review matters under the Fourth Amendment, a decision not to exclude the evidence doesn’t mean that they didn’t apply the Fourth Amendment.

In this case if the trial court — or if the reviewing court looks at the length of delay and then they may look at the justification to determine that the delay was justified.

Sonia Sotomayor:

Well — I might be speaking for her, but I thought that the Habeas Corpus Resource Center brief showed that the court, the California court, did reach some cases where an explanation had not been proffered.

And so it can’t be just a simple rule, that if you don’t proffer an explanation you won’t get heard.

So what’s the next step in that?

Sonia Sotomayor:

Why do they reach some and not others?

Todd Marshall:

The California Supreme Court, if the case is patently meritless — and perhaps the procedural question of timeliness is more complex.

Sonia Sotomayor:

How could it be complex when there is no justification offered?

Todd Marshall:

The question of how long it was.

Sonia Sotomayor:

Well, they pointed to a certain number of cases that were 5 years or above in delay where no justification was offered, and in some they reached the merits and in others they applied a procedural bar.

So how is that consistent?

Todd Marshall:

Well, the State court has discretion to determine on procedural grounds or on the merits–

Antonin Scalia:

Is there some Federal rule that says you have to apply a procedural ground before you decide the merits?

Todd Marshall:

–There is not.

Antonin Scalia:

So it’s up to California which of the two it wants to use?

Todd Marshall:

That’s correct.

Ruth Bader Ginsburg:

–And in California, if it just says “denied” then the presumption is that it is denied on the merits, is that it?

Todd Marshall:

That’s correct, the lack of a prima facie case.

Ruth Bader Ginsburg:

So if it’s going to be denied on time bar grounds there has to be something to indicate that it’s for that reason.

Otherwise we assume it’s on the merits?

Todd Marshall:

That’s correct.

Typically the citation is to Clark and Robbins, just as it was in this case.

Sonia Sotomayor:

So how do we know that the California court just thinks that the Federal question is too hard and it doesn’t want to reach it?

It may be meritorious.

How do we know they are not applying the decision to reach the merits on an arbitrary and capricious basis or one that seeks to avoid hard Federal questions?

Todd Marshall:

First is this Court has never taken the position when measuring adequacy of assuming that the rule is inadequate.

The starting position that this Court has always taken when looking at the adequacy of a State rule is to look for evidence to see if it can be shown to be inadequate.

And I posit that there is no evidence in this case that has been presented to show that the State court is using their rule as a pretext of any kind.

Anthony M. Kennedy:

Is it arbitrary and capricious for a court to take the ground of least resistance, to decide the cases on the easiest issue that’s presented?

Is that arbitrary and capricious?

Todd Marshall:

I posit that it’s not.

This Court endorsed in Lambrix that it’s all right for courts to address the procedural default after Teague if that’s a more judicially efficient method of handling the matter.

Strickland cases permit addressing either prong, whichever is easier under the circumstances.

So the State courts ought to be permitted to address habeas corpus on whatever the easiest, most judicially efficient basis is without being forced to answer a timeliness question if a case is patently meritless.

And there should be no finding of inconsistency about that.

Todd Marshall:

And more importantly, summary denials, as we are discussing here, don’t afford any notice to litigants of what the State’s procedures are or what they are thinking because you have to guess.

You have to guess at how long the delay was, you have to guess as to whether there was any justification offered, so summary denials do not assist the inquiry.

And this Court has never endorsed using summary denials in its adequacy measure.

This Court has always looked to published State cases that explicate the rule.

This Court is looking to see whether the rule has been pronounced by the State for a certain amount of time and then all of a sudden the litigant that is receiving the imposition of the rule receives a rule that was unexpected, either because the rule was changed or because the rule was novel.

Nothing like that has happened here.

Anthony M. Kennedy:

The phrase is “substantial delay”.

Are there factors other than temporal factors that go into whether or not the delay is substantial; that is to say, the prisoner had difficulty contacting his counsel and so forth?

Is that what the court looks at when it looks at “substantial”?

And is there — are there California cases that tell us how do we define “substantial”?

Todd Marshall:

Yes, Your Honor, to both.

The kind of circumstances you are describing are exactly the kind of circumstances which makes California’s rule fair, because it considers how long it takes a litigant to find his claim, get it prepared, and get it into court.

There are, in fact, concrete examples.

The Robbins case specifically provided that a 5-month window from the discovery of triggering facts to the presentation of the — of the claim was a reasonable amount of time.

By contrast, the Stankiewicz case provided that 18 months of delay from the discovery of a declaration was substantial and had to be justified.

Elena Kagan:

When does the State think that Mr. Martin’s claim became untimely?

Todd Marshall:

Certainly he hasn’t given any reason why he didn’t present his additional claims at the time of his earlier habeas corpus challenges.

Mr. Martin went through a full round of superior court, court of appeal, and supreme court challenges, and then waited some additional years and has never explained why he didn’t include these additional claims in those earlier challenges.

Elena Kagan:

So you think it–

Anthony M. Kennedy:

It’s supposed to be filed within 60 days.

I don’t — this is along the same lines as Justice Kagan’s questions.

Suppose there’s the first round of habeas and then he waits 60 days and files the new claim.

Would that be substantial?

Because you are indicating that failure to include it in the first review is a factor to be weighed against him, and I think that’s what the justice is inquiring about.

Todd Marshall:

Yes, it does weigh against.

And it is a rule of reasonableness, and it’s a discretion-based rule.

And he would have to offer, well, why didn’t he include those claims earlier?

And if he had a good reason–

Antonin Scalia:

Yes.

Isn’t that a separate rule?

Antonin Scalia:

I mean, no matter how soon, if he does it a week after, doesn’t California have a rule that you can’t come back with another habeas with material that you could have produced in the — in the former habeas?

Todd Marshall:

–That’s correct, Your Honor.

Antonin Scalia:

So time — time has nothing to do with that.

It’s just a separate — a separate bar.

Todd Marshall:

California has articulated that successive petitions are a type of delayed petition.

But you are right, there is a difference in California between successive petitions and delayed petitions, and the ruling here is that he was delayed substantially.

I was just addressing the point about when they might have been timely had they been presented earlier, and it appears that in the earlier — he didn’t get a timeliness ruling in his earlier challenges.

So it appears that he could have raised them then and did not.

Elena Kagan:

–But if we can take out the second and successive aspect of this and just focus on the timeliness, when does the State think that this — that these claims became untimely?

Todd Marshall:

It’s a rule of reasonableness and diligence that’s circumstantially based, and–

Elena Kagan:

Well, you have the circumstances here, so under those circumstances when did the claims become untimely?

Todd Marshall:

–Under the Robbins case, it explains that you have a 5-month span from discovery of the claims to presentation of the claims would be reasonable.

Sonia Sotomayor:

But claims here–

Elena Kagan:

The 5 months would be reasonable.

So is a year unreasonable?

Is 5 months the outer bounds, you know, assuming you don’t have a good reason?

I understand that if you have a good reason, that can lengthen it.

But suppose you don’t have a good reason.

When does the State think, okay, that’s too late?

Todd Marshall:

There isn’t — there isn’t a defined timeline.

But our position is that a defined timeline is not a necessity for adequacy.

This Court has endorsed reasons of — rules of reasonableness and diligence.

For example, in the Federal prisoner context in Johnson v. United States, this Court said diligence in discovery, while it isn’t exact, is good enough.

Elena Kagan:

Well, I’m trying to get to even around, not — not exact.

My standard is not exact.

It’s just around.

Around what?

Around 6 months, around 3 years, around someplace in the middle?

Todd Marshall:

The position of the State is that Robbins has indicated that 5 months is reasonable, 18 months is definitely too long, and that there is a discretion-based determination in the middle.

Samuel A. Alito, Jr.:

What if it’s filed within 6 months and it’s rejected as untimely, and the Petitioner wants to try to demonstrate that this represents a grave departure from the way these are normally handled by the California Supreme Court?

Samuel A. Alito, Jr.:

Is there any way for the Petitioner to do that?

Todd Marshall:

He would point to the published authority and argue that his case was outside of the parameters of what the State had done in the past.

However, our position is that, since California’s rule is adequate, that there would be no evidence of such available to this particular litigant.

A hypothetical litigant might be able to proffer that prior cases had treated claims differently.

The other problem with California is that it would require two exact same litigants, and it’s very rare for two exact same litigants to have the exact same claims, the exact same bases for their delay, and file exactly the same amount of delay.

So true comparison is difficult.

Antonin Scalia:

Do you think 5 years is too long, though?

Todd Marshall:

Yes.

Antonin Scalia:

Yes.

Ruth Bader Ginsburg:

This was taken over by California from capital cases, but in the capital case context they have a 90-day presumption of timeliness.

And when they extended the capital framework to non-capital cases, they left out the presumption that within 90 days is timely.

Was there a reason for that?

Todd Marshall:

Respectfully, I must disagree.

It actually is the other way around.

The capital case policies took the timeliness rule, took the general timeliness rule for themselves, and added the presumption.

Ruth Bader Ginsburg:

Was there a reason for then saying, well, in the capital context, we are going to make it clear that 90 days — 90 days is timely.

Why didn’t they add that to the original rule?

Todd Marshall:

To the other litigant rule?

Ruth Bader Ginsburg:

Yes.

Todd Marshall:

They, I think, felt that the rule was adequate the way it was, that a circumstantially-based rule, a reasonableness-based rule, was sufficient to guide the conduct of litigants to tell them what they needed to do to present their case.

Ruth Bader Ginsburg:

Well, why would it be different in the capital context?

What was the reason for adding the 90 days there?

Todd Marshall:

Capital cases are significantly more complex, the punishments are — are more significant, and so additional scrutiny might be warranted in those contexts.

Sonia Sotomayor:

–I’m a little bit confused by your response to Justice Scalia.

I thought from your brief that you were positing that there was no claim of inconsistent application of the rule that could ever survive.

Let’s assume for the sake of argument the following hypothetical, and probably not far off the mark.

Litigants who don’t know the law, who claim they are not educated in it, say that they have just learned about a new California case that gives them a ground to challenge their prior sentence.

And the litigants learn about the case anywhere between 3 and 6 months of the issuance of the case by the supreme court.

A dozen litigants apply for this discretionary review and half of them are granted review and half are not.

Half of them get a correction of the sentence and half of them don’t.

Sonia Sotomayor:

There is no difference between them that’s discernible.

They each just claim ignorance.

Is that a case where someone would be out of luck, and why, for a claim of inconsistent application?

Todd Marshall:

I didn’t follow the hypothetical.

Was — were some of the hypothetical individuals getting time-barred?

Sonia Sotomayor:

Getting time-barred.

Some are time-barred; some–

Todd Marshall:

And some of the individuals were getting relief?

Sonia Sotomayor:

–Exactly.

Todd Marshall:

Is there yet a third set of people who are getting–

Sonia Sotomayor:

No.

Some — all of them are within that small framework of 3 to 6 months from the time the supreme court decision was issued.

They all claimed they just learned of it and filed immediately, and some are getting relief and some are not.

Is that an inconsistent application that would be cognizable under your view of the rule as it should be?

Todd Marshall:

–That sounds inconsistent to me, Your Honor.

However–

Sonia Sotomayor:

It does.

Todd Marshall:

–But such a thing would not occur in California.

Sonia Sotomayor:

I’m sorry.

What?

Todd Marshall:

Such a thing would not occur in California.

Sonia Sotomayor:

Well, that’s the issue.

Todd Marshall:

A meritorious–

Sonia Sotomayor:

Which is: What rule do you want us to impose and how does that rule capture that case?

Todd Marshall:

–There is a specific exception for timeliness in California to preclude fundamental miscarriages of justice.

Anybody that had a meritorious–

Sonia Sotomayor:

You are not answering my question.

Todd Marshall:

–I misunderstood it.

Antonin Scalia:

Wait.

No.

Antonin Scalia:

Why do you concede that it would be — can’t the State, if it wishes, give grace to people who did apply late, but because the case is so meritorious or for any other reason?

The issue is whether those people who filed 5 years later and knew that it was very late, whether they are entitled to have their cases heard, not whether the state allows somebody who filed 6 years earlier to have it heard.

How does that do any injustice to the person who knew that 5 years was, you know, you are likely to be denied?

Todd Marshall:

I absolutely agree, Your Honor.

The basis for my earlier comments was the — I believe the hypothetical was 3 to 6 months, which was a much shorter period of time.

Antonin Scalia:

I don’t see why the State has to be consistent in it.

If — as a matter of grace, it can — it can allow some people, so long as the people who are denied had every reason to believe that they were coming in too late, and 5 years is coming in too late.

Todd Marshall:

Just as occurred in this case, I absolutely agree, Your Honor.

Sonia Sotomayor:

But it doesn’t answer why inconsistent application among similarly situated individuals should not provide an avenue of relief.

Todd Marshall:

This Court has never reversed–

Sonia Sotomayor:

5 years is different.

I’m talking about treatment of similarly situated individuals differently.

Todd Marshall:

–First of all, this Court has only looked at the treatment of this individual, not disparate treatment of prior individuals.

The — the rule exists–

Sonia Sotomayor:

Oh, I don’t disagree with you.

So that the question I have for your adversary is whether or not he can point to any case where a litigant who proffered an — something that was evident on the trial record and on the appellate record was ever granted a merits review after 5 years.

Because I don’t see them proffering any case that shows that.

But — and I think that may be your argument.

Todd Marshall:

–Yes, exactly.

No one–

Samuel A. Alito, Jr.:

I don’t understand your answer, then.

You have — let me just adapt what Justice Sotomayor said.

You have — a case, a Supreme Court case is decided.

And you have ten — ten habeas petitioners in California who file on exactly the same day.

And five of them, if you were to get to the merits of their claim under this new decision of this Court, five of them would be entitled to relief, five of them would not be entitled to relief on the merits.

And the California Supreme Court holds that the five who would be entitled to relief are procedurally barred and the five who were not entitled to relief are not, and they are rejected on the merits.

Now would that be an adequate State ground?

Todd Marshall:

–Well, I’m not sure.

It doesn’t happen in California that way.

Samuel A. Alito, Jr.:

No, I know and I’m not suggesting that it would.

Todd Marshall:

All right.

Samuel A. Alito, Jr.:

But if it were to happen, would that be adequate?

Todd Marshall:

It doesn’t sound like it would be adequate under this Court’s prior tests.

Samuel A. Alito, Jr.:

So fair notice is not the only requirement.

Todd Marshall:

This Court has also required legitimate State interest, and this Court has used the legitimate State interests context, like for example in Smith v. Texas, where this Court has declared a particular kind of violation was a constitutional violation and the court exercised its discretion not to reach the violation, this Court found that the State had no legitimate State interest in such a ruling.

Our point is that–

Antonin Scalia:

But — but the cases that you are using in which we insisted upon adequacy in the sense of equal treatment of equal people are cases in which the effect of the State decision was to exclude the matter from Federal — from Federal supervision.

The matter could not come before the Federal courts.

Todd Marshall:

–Yes, Your Honor.

Antonin Scalia:

This is something quite different.

This is applying a time limit.

I don’t see why we have to apply the same rule and — and look into the — whether it’s not discretionary.

I mean, to say it’s discretionary always means that sometimes similar cases may be treated differently.

Todd Marshall:

Yes, Your Honor, exactly.

Antonin Scalia:

So I don’t know why you — you concede that — that we take an adequacy rule that is used for one purpose and should apply it to a totally different situation.

Todd Marshall:

It was the meritorious nature of the claims.

And in California meritorious claims don’t receive the time bar because there is exceptions that take those into consideration.

Antonin Scalia:

But none of this is — is a device as is used in the cases that — that you are referring to that go into adequacy, a device to exclude the Federal courts from the case.

That’s — that’s not what’s going on here, is it?

Todd Marshall:

That’s correct.

Stephen G. Breyer:

I guess if the situation were such that a lawyer who is representing a client and has to figure out, has there been too much delay or not, suppose he looked into the situation thoroughly and he said, gee, I just have no idea, because half the cases come out one way and half of them come out the other way.

Could he then go to the California Supreme Court and say,

“Court, look what you have been doing? “

And would the court then grant a hearing on that and possibly correct it?

Todd Marshall:

Well, in California there is no such evidence, but I suppose that the lawyer could–

Stephen G. Breyer:

All right.

So you are saying there is no such evidence.

Todd Marshall:

–That’s correct.

Stephen G. Breyer:

That’s what I suspected from reading this.

But if there were such evidence is there a route in California that they could deal with it?

Todd Marshall:

Certainly.

Stephen G. Breyer:

Yes?

Antonin Scalia:

That’s not a question of adequacy, is it?

It’s a question of notice.

Todd Marshall:

That’s correct, Your Honor.

Stephen G. Breyer:

Adequacy of notice, because no notice might be an inadequate notice.

Todd Marshall:

That’s correct.

Stephen G. Breyer:

And if it’s absolutely divided 50/50 you have no notice.

You don’t know what will happen.

And it isn’t a rule to say, oh, this is our rule, you don’t know what will happen.

Todd Marshall:

Within an area of discretion, like for example the finding of whether a piece of evidence was hearsay, if the court down the hall finds the evidence should be excluded and the court in the next room says it should be admissible, that is not necessarily–

Stephen G. Breyer:

I agree with you, we are in hypothetical, never-never land so far.

But it’s possible your opponents will convince us it’s real land and not never-never land.

John G. Roberts, Jr.:

And for it to be real — just so I understand — for it to be real, you have to have a defense counsel, a client comes to him with a non-frivolous Federal habeas claim, and the defense counsel says, I can’t tell whether we are going to be barred by this time rule or not.

Some courts, looks like we will; some don’t.

So what?

Of course he is going to file the Federal habeas and see if it’s determined to be adequate or inadequate, correct?

Todd Marshall:

–California’s rule is perfectly suited to such a scenario.

All that litigant has to do is explain why they didn’t bring the claim sooner, either from late discovery or some other impediment, and the substantial delay can be justified with exactly those sorts of circumstances.

Elena Kagan:

What happens if a — a person in this position is trying to investigate multiple claims at once, and some of them are ready to be put before the court and others are not?

How does he know, look, I really better get in there right now and put whatever I have before the Court; or look, I have a little bit more time in order to investigate some of my claims further?

How does he make that determination?

Todd Marshall:

The Gallego case specifically speaks to that exact circumstance and provides that if you have a good faith basis in investigating further triggering facts, you may withhold the claims that you have already — or prepared, to prevent piecemeal presentation; and that is a perfectly acceptable explanation in California.

Elena Kagan:

Why is it, Mr. Marshall, that the — the California courts have not been a little bit more transparent about what the presumptive time limits are?

You know, look, it’s around a year unless have you a good reason.

You know, at least we are taking 3 years off the table.

I mean, why don’t we have decisions like that from the California courts that would — would help folks here?

Todd Marshall:

Well, other than the Robbins decision, which speaks of 5 months as being reasonable, the court has tried to maintain a discretion-based, circumstantially-driven analysis in which they take different litigants into consideration.

One litigant may be in a maximum security prison and only gets to go to the library once a month.

Another litigant may be in a minimum security prison; he can go to the library every day.

Todd Marshall:

Those two litigants are going to be different and should be treated differently.

And if I might reserve the remainder of my time.

John G. Roberts, Jr.:

Thank you, counsel.

Mr. Bigelow.

Michael R Bigelow:

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

The adequacy inquiry is framed by asking whether the State rule in question is firmly established and regularly followed.

At its core is the prevention of State courts from declining to enforce Federal rights and to maintain Federal authority over the protection of constitutional rights in the Supremacy Clause.

In its brief at page 7, the State would seem to agree that a rule is inadequate unless earlier decisions of the State court are at least consistent.

Sonia Sotomayor:

Well, but what did you present below, or what has Habeas Corpus Resource Center presented?

A case with a 5-year delay where the claimed errors are apparent on the trial record and the appellate record, and no justification for the delay is proffered.

Those are the three seminal facts that go to the requirements of Robbins and the other Supreme Court — other California Supreme Court cases.

Do you have one case that’s similar where the court went to the merits?

Michael R Bigelow:

Sanders was a 5-year case that is cited in my brief.

Jones was–

Sonia Sotomayor:

No.

Was that someone who made the claim based on the trial and appellate record with no justification?

Michael R Bigelow:

–I will speak to justification in just a moment, if I may.

Sonia Sotomayor:

Uh-huh.

Michael R Bigelow:

Jones was an eight year case.

The amicus brief, the Resource Center cited Cooper, Duke and Hardiman.

Cooper was a five year case.

Those were both IAC claims which appear to — with respect to the Sanders and the Jones case, I cannot, I do not know specifically what the claim was as I stand here and I apologize for that.

But let us look at justification for just a moment.

The justification offered in those cases was that the habeas Petitioner was ignorant and had no counsel.

Now, I will represent to you that in the State of California 99.9 percent of the lawyers — the lawyers — 99.9 percent of the petitioners who file aren’t represented by counsel and are not lawyers themselves and I would represent further that probably 98 percent or 99 percent have no more than a 12th grade education.

Antonin Scalia:

These cases that you cite, before you go any further, are cases in which the California Supreme Court came out with an opinion saying that six years was okay?

Or are they just cases where without an opinion the California Supreme Court went to the merits?

Michael R Bigelow:

They are — well, in the Sanders case and in the Jones case, there were I believe they were decisions, in — they were decisions.

These cases predated the Clark Robbins situation.

In the Cooper case and the Duke case, those cases–

Antonin Scalia:

What do you mean they were decisions, written opinions or just went to the merits and decided the merits?

Did they say anything about the delay question?

Michael R Bigelow:

–They did say something about the delay question in at least two of the cases, well, at least in one of the cases, the Mitchell case, which was a two year delay, they said two years was unreasonable, but I didn’t cite those and I cannot speak to–

Antonin Scalia:

The other side says, unless there is an opinion, the reason they may have gone to the merits is — was just a lot easier.

Michael R Bigelow:

–To that extent, it’s my recollection they went to the merits.

They are not silent denials and they don’t cite Clark Robbins because they predated Clark Robbins.

With respect to the Cooper case and Duke case, those I believe were silent denials.

Now, and that’s the interesting thing about California.

We are presuming, we are presuming and this Court has reached that presumption, that they are merit denials when they are silent, but we really don’t know.

Stephen G. Breyer:

That’s a puzzle to me.

I mean, Justice Scalia’s question was courts all the time, they all the time, they don’t decide an issue of whether it’s filed too late because it’s the simplest thing just to decide the merits.

It’s the same result.

And sometimes they don’t do that.

But that happens often in a district court on appeal and triple in a supreme court which has hundreds or thousands of questions for review.

So how do we know that that simple practice, which I have never heard of as attacked as unconstitutional, how do we know that that isn’t what’s going on?

Michael R Bigelow:

Well, in — in any given year recently — in recent history at least, there are about 800 truly silent denials, no explanation.

Now, the State says, we can’t consider them because they mean nothing.

From our perspective, they have to mean something, and they have to count because we don’t have the information that the litigant in this matter doesn’t have the same kind of resources, for example, that the State does.

Stephen G. Breyer:

But that’s — they — what’s your point?

800 are silent.

What does that show?

Michael R Bigelow:

That they have got to count in the adequacy, in the consistency application they have got to count against the Petitioner.

Stephen G. Breyer:

Why?

Michael R Bigelow:

Because the Petitioner is the one who has the resources–

Stephen G. Breyer:

Then you can make any claim against him.

What I wonder, maybe this is where I’m leading, the California Supreme Court is not the only court in California where people file for habeas petitions, is it?

Michael R Bigelow:

–No.

The appellate court–

Stephen G. Breyer:

Yes.

So why if there is inconsistency in this rule, wouldn’t somebody go look at the decisions in the appellate courts which write the reasons down, and then you would know whether it is being decided, applied consistently or not inconsistently.

Stephen G. Breyer:

Why look at a blank wall?

Why not look at people who write opinions and then you will find out?

Michael R Bigelow:

–Not all — not all habeas petitions in California are filed in lower courts.

Stephen G. Breyer:

No, of course not.

But is your claim, are you conceding or are you conceding, are you denying, are you just saying nothing about whether the practice in this rule, applying the rule of substantial unexcused delay disqualifies you for — that’s the rule, isn’t it?

Michael R Bigelow:

That’s the rule.

Stephen G. Breyer:

All right.

Are you saying it’s being applied consistently or inconsistently or you do not know?

Michael R Bigelow:

It is being applied.

Stephen G. Breyer:

In all courts below the California Supreme Court?

Michael R Bigelow:

In all courts below, I do not know.

Stephen G. Breyer:

So you do not know.

So what you have done your research on are questions that cannot be answered due to the fact that a supreme court normally doesn’t say why when it denies something, but you haven’t looked into the research that is readily obtainable, which is these are courts that write opinions.

Have I gotten that correctly?

Because if that’s correct–

Michael R Bigelow:

That would be a correct thing.

Stephen G. Breyer:

–All right.

Then I don’t see why you didn’t because it would be easy if you are right to show this from the lower courts, but of course if you are wrong, it wouldn’t be easy, then a blank wall is better than nothing.

Now, what can you say that will disabuse me of the notion that I just expressed?

Michael R Bigelow:

The — the lower appellate courts, there are six — there are six district courts, there are six appellate districts, I guess, within the State of California.

And who knows how many superior courts.

For a Petitioner to examine the holdings and the rulings in each of those districts would be virtually impossible for a Petitioner who is in prison, who is unrepresented by counsel, and let’s not forget that non-capital habeas petitioners, and this is non-capital habeas petitioners, is not represented by counsel.

Stephen G. Breyer:

But there is something called sampling techniques and sampling techniques are designed to limit the burden.

I’m not saying it wouldn’t be burdensome, but you have examined thousands of cases.

So I’m back to my original question and statisticians, many of whom would like to help you perhaps if you could find some, could do this for you, I think.

Michael R Bigelow:

Amicus did it with respect to the–

Stephen G. Breyer:

The wrong court.

And amicus did it from the time that the case was filed, while the rule is you start the period of running from the case when the person should reasonably have known his issue, which isn’t the same time as the time his case was divided against.

Michael R Bigelow:

–That’s an excellent point the Court makes.

And it is that — nobody in this room, nobody in this room can tell this Petitioner, this litigant when this petition was filed late.

Stephen G. Breyer:

That’s true.

John G. Roberts, Jr.:

But everybody in this room can tell him that he is obligated to file the petition as promptly as the circumstances allow.

He has complete notice of that.

And if he wants to go and do the research and say, well, here’s one where they let it in after five months, but here’s one where they didn’t leave it in after nine months, so he sits here and decides I’m going to wait nine months and put my money on that court.

That is not a scenario that’s likely to happen, right?

Michael R Bigelow:

That — it is not a scenario that is likely to happen.

But the construct that the Court has — as promptly as circumstances would allow, shows up in a footnote in a capital case.

That–

John G. Roberts, Jr.:

You are not challenging that as the State rule, are you?

Michael R Bigelow:

–That’s the State rule that they proffer.

That is the rule that the State proffers.

And what I’m suggesting is that that rule is so vague and unknown in the context at least of the habeas litigation, no one understands what that rule means.

How prompt is prompt?

Elena Kagan:

Mr. Bigelow, is that right?

I take your point that nobody can say exactly when Mr. Martin’s claims became untimely, but five years is untimely, isn’t it?

Michael R Bigelow:

Five years is not untimely if–

Elena Kagan:

If there is a very good reason, but five years without an explanation is — why is that a hard question?

Michael R Bigelow:

–Even with an explanation, five years is not beyond the pale of cases that have been previously decided and with respect to similarly situated litigants.

Other cases in California — and don’t forget, please, that the Habeas Corpus Research Center took only a small sample of a single day and that was the day that Martin’s decision came down.

John G. Roberts, Jr.:

And they didn’t look at possible justifications at all, correct?

Michael R Bigelow:

There was no justification with respect to Mr. Martin’s petition, that’s correct.

John G. Roberts, Jr.:

No, no.

I’m not asking about Mr. Martin’s.

Michael R Bigelow:

I’m sorry.

John G. Roberts, Jr.:

This — the analysis that the amicus undertook simply looked at the chronological time.

They did not consider the fact that, for example, somebody with three years might have had an explanation; somebody with one year might have not had any.

And they may view those cases as different cases.

Michael R Bigelow:

I would disagree.

I think that they did, in fact, look at explanations for delay, and a curious thing that they did find which is in their brief is that even though — cases which–

John G. Roberts, Jr.:

How did they look — did they look for explanations for delay when you had the one-sentence denial?

Michael R Bigelow:

–I think the short answer to that is yes, but they also looked at silent denials as well.

So they found that where there was no explanation for delay, more of those cases were decided actually on the merits than cases that did offer a delay.

So there is a — a gross inconsistency, a gross inconsistency between the need for justification of delay.

John G. Roberts, Jr.:

How much range are you willing to give the State?

Do they have three months’ range?

I mean, if you come in and say, Well, here they were filed in nine months and they were allowed, and here they were filed in six months and they were not allowed.

Is that a problem under our consistency requirement?

Michael R Bigelow:

It wouldn’t be a problem.

That would be a discretionary rule if there were guidelines; if there were guidelines–

John G. Roberts, Jr.:

It says

“as promptly as the circumstances allow. “

And they go back and say there is a range, a three-month range.

Michael R Bigelow:

–Oh, if they went back with decisional law, decided the range?

John G. Roberts, Jr.:

You do the same sort of research you have done here, and you find out that — that there is a three-month range.

Sometimes — I mean, there are cases and you can show a lot where they are allowed at nine months and then you find cases that are not allowed under six months.

Michael R Bigelow:

I would be in a lot more tenuous position arguing this case if there was some guidance to litigants with respect to what does constitute a reasonable time period within which to file.

What–

Ruth Bader Ginsburg:

And suppose — suppose California has a rule that said you have to file within one year of the finality of the conviction, absent good cause for the delay.

If that were the rule that California had, your client certainly would be untimely and you wouldn’t have a leg to stand on, right?

Michael R Bigelow:

–If that were the rule, the petition would have been filed timely.

That is my answer.

That is my answer to that question.

Had that time period been known, the petition would have been filed timely.

Ruth Bader Ginsburg:

But if there is a requirement of prompt — as promptly as circumstances permit, wouldn’t a person know that 5 years is not as prompt as circumstances permitted?

Michael R Bigelow:

There has — my answer is no, because in California there are no guidelines.

That came in the Clark decision, which was 1993, and nothing has been decided in the State of California to define, to clarify, to narrow what constitutes “promptly”.

What constitutes “promptly”?

Elena Kagan:

Why was this petition not filed for 5 years?

Michael R Bigelow:

I’m sorry?

Elena Kagan:

Why — why was this petition not filed for 5 years?

Michael R Bigelow:

The record is — does not speak to that point specifically.

Ruth Bader Ginsburg:

But didn’t this come about because it was returned — this was not — I’m thinking about — he didn’t — he didn’t make any claim that he was diligent.

Michael R Bigelow:

I’m sorry?

Ruth Bader Ginsburg:

He didn’t make any claim that he was diligent in filing it 5 years late.

Michael R Bigelow:

There were no claims made excusing the — excusing the filing at that time period.

Antonin Scalia:

Let’s assume that California had just adopted this rule, this rule that habeas petitions have to be filed as promptly as circumstances permit.

They’ve just brand-new adopted it.

And you are the lawyer for somebody who says, you know, I think I’m going to wait 5 years.

Don’t you think that even if there were no California law on the subject, you would know that his habeas claim is going to be denied?

Michael R Bigelow:

If this were a–

Antonin Scalia:

Do you really need case law to tell you that 5 years is not as promptly as circumstances permit when you — when you have no justification?

Michael R Bigelow:

–Decisional law is what our system is all about, Your Honor.

Antonin Scalia:

Oh, so you can’t have a first case?

Michael R Bigelow:

No, I think you can — I think you can have a first case so long as — so long as the standard itself is not so vague–

Antonin Scalia:

Oh, okay.

Michael R Bigelow:

–that reasonable — that reasonable men — so long as reasonable men are able to understand the standard.

Antonin Scalia:

You think reasonable men differ about 5 years?

Michael R Bigelow:

Well–

Elena Kagan:

Mr. Bigelow, isn’t this similar to the rule that governed Federal habeas review prior to AEDPA?

A similar kind of delay standard, whatever “delay” means?

Michael R Bigelow:

–If I recall, the standard was prejudicial delay, if I recall correctly.

And prejudicial delay, if I am correct, is a quantifiable standard.

It is a standard that had, over the years, come to be understood.

There was a shared expectation with what prejudice encompassed.

And so yes, it’s similar, but it’s not exact.

It’s not the standard in California.

And if I may, California clearly understands that case law can offer guidance to litigants.

In In re Harris, a case cited by both of us, by both parties, the State of California was concerned about the Waltrius rule, which is another procedural bar.

And it went on to — it acknowledged that it wasn’t clear at that time and it went on to explain what the Waltrius rule was all about and why it was needed.

And in another case, where recently, the State of California — in a case not cited, the Kelly case; it’s a 2006 case — the California Supreme Court directed its lower courts over which it supervises to provide greater detail in their analysis of Wende briefs, which is the State’s alternative to the Anders brief, in order to provide guidance to litigants, to provide guidance to justices, and to provide — to provide guidance to the Federal courts who may be called upon to determine procedural bars.

John G. Roberts, Jr.:

Now, I understand that you would have a much stronger case if you were dealing with a judge-made rule about timeliness.

If the courts, on their own authority, said, Look, we are not going to look at things that are filed four years late because that prejudices the state, it prejudices us, et cetera.

But here you have something different.

You have a rule, right?

An established rule: Promptly as circumstances allow.

Michael R Bigelow:

Judge-made.

John G. Roberts, Jr.:

Judge-made, but it’s been around for a long time.

This isn’t a new rule that is just coming in.

Michael R Bigelow:

So a rule in a footnote in a capital case.

John G. Roberts, Jr.:

Let me get back.

I tried to — when you made that point earlier, I wanted to follow up on it.

Your claim is not that you don’t know or defendants in California don’t know that the rule is

“as promptly as the circumstances allow. “

do you?

Michael R Bigelow:

No.

John G. Roberts, Jr.:

No.

I thought you had fair notice of that rule.

Michael R Bigelow:

Yes.

John G. Roberts, Jr.:

Okay.

Michael R Bigelow:

Just not the parameters of the rule.

And the parameters of the rule, the guidelines which guide judges, which guide litigants, is just simply not there in California, either with respect to that rule or with respect to substantial delay.

Samuel A. Alito, Jr.:

Isn’t your argument that the California timeliness rule was never an adequate rule, never can proceed, never can bar consideration of a Federal claim?

Michael R Bigelow:

The — had the — never.

Had the rule been applied even-handedly, had the rule been applied consistently, it would certainly be more adequate.

However, and getting back to Justice Scalia’s point, it has never been clearly defined, so it does not clearly–

Samuel A. Alito, Jr.:

What if Mr. Walker had waited 20 years; would it still be inadequate as to him?

Michael R Bigelow:

–In — that’s not — that’s not this case.

The rule hasn’t been — the rule has not been thoroughly set out; at — at least the guidelines haven’t been set, and it might be–

Ruth Bader Ginsburg:

Well, why can’t you take the brackets of — what was it, 5 months is reasonable time; 18 months is not a reasonable time.

Mr. Martin falls outside of the 18 months.

Michael R Bigelow:

–Certainly one — one could do that, but that hasn’t been established as the brackets, and it is, after all, California’s rule.

And it is California that — which needs to make that determination.

Now it’s — it’s not as if California hadn’t actually tried to do that.

Ruth Bader Ginsburg:

I thought there was a decision that 18 months was too long.

Michael R Bigelow:

Not a decision that said that.

These were extrapolated — no, I beg your pardon.

Ruth Bader Ginsburg:

There was a decision that said 18 months is too long.

Michael R Bigelow:

There was a decision that said a 16-month period, but that was pre-Clark.

That was a pre-Clark decision that actually did say 16 months after all is not a particularly long period of time.

And another decision — I beg your — I beg the Court’s pardon — another decision said that two years was not a particularly long period of time.

But those are — those are pre-Clark decisions, if you will, and this case is relying upon, or the State act rather is relying on what has come after — after Clark with respect to its, as promptly as the circumstances should allow.

But the other point that I would like to make, it’s not as if the State of California doesn’t understand the need for a finite period of time to provide guidance to — to all parties.

In — in Saffold, the State requested this Court presume a filing period, I think it was — I want to say 60 days.

More recently in Chavez, a filing period was requested to be presumed again by the State.

On both occasions this Court declined because it isn’t this Court’s prerogative to set rules for the State.

What this Court did do is it certified the question to the State of California, or they asked the Ninth Circuit at least to certify the question to the State of California.

The Ninth Circuit did exactly as this Court asked it to do, and certified the question, and the State of California says:

“We are not going to tell you what a timeliness period is. “

Now that doesn’t help pro se litigants with minimal education, without benefit of counsel, who are the vast majority of habeas petitioners in the State of California.

They–

Samuel A. Alito, Jr.:

How many of these petitions are filed each year in the California Supreme Court?

Michael R Bigelow:

–Approximately 2,500, give or take.

Samuel A. Alito, Jr.:

Approximately what?

Michael R Bigelow:

Approximately 2,500, based on a LexisNexis kind of search.

Samuel A. Alito, Jr.:

With that many petitions, is there any possibility that a multifactor test such as the one that California is applying could be applied with any degree of regularity, unless there is some sort of secret internal guidelines that are being applied by the California Supreme Court in deciding this?

Michael R Bigelow:

That’s the problem.

The test that is applied without guidelines, without any kind of guidelines, the judicial discretion — judicial discretion is informed discretion, it is not discretion — it is judgment pursuant to known guidelines, it is not a judgment issued pursuant to inclination.

And the concern is that with this kind of amorphous standard, inconsistent and arbitrary application is impossible to enforce.

Stephen G. Breyer:

It’s like having rules; when you have rules and say 60 days or 90 days, you find impossible cases that you should have heard because it was the 91st day or it was the 92nd day, and then you give the people equitable discretion to depart from it, and pretty soon you get litigation over that.

I mean, there is no perfect system.

Michael R Bigelow:

Discretion to depart from a rule that has been violated is one thing.

Here there is no quantifiable or known parameters within which discretion.

Sonia Sotomayor:

So is the solution for California to say, if you delay more than a year from when you should have known you are barred, except we will excuse it for any number of reasons?

Michael R Bigelow:

Certainly.

Sonia Sotomayor:

That would be a regularly and consistently applied rule in your mind?

That would be enough?

Michael R Bigelow:

Well, it wouldn’t necessarily be consistently applied until we are down the road and we learn how consistently it has, in fact, been applied, but certainly it would be an appropriate rule.

Antonin Scalia:

You better be careful about what you wish for because I am not sure that the kind of system that is being proposed is going to be better for habeas applicants than the one that California now has.

We really don’t know that, do we?

Michael R Bigelow:

We — if — if we collectively screamed and yelled when AEDPA passed with its one year statute of limitations, we have learned to live with it, and we meet the deadlines because we know what the deadlines are.

Sonia Sotomayor:

And pro se litigants who don’t know deadlines generally are going to live with knowing that, what?

Michael R Bigelow:

They have got a better chance — they have got a better chance of meeting deadlines if they know what those deadlines are, and there is nothing to take — there is nothing to take the flexibility from the California Supreme Court if there is a deadline.

Stephen G. Breyer:

That’s why I go back to the lower courts.

If there really is a problem here, why wouldn’t the bar look into how well this practice is working in the lower courts and find out, well, what is the practice?

How do they use it?

Do we want more flexibility?

Do we want more definite rules?

I agree that you put your finger on a problem, an important problem, I’m not at all certain that the one system is better or required or compulsory.

Michael R Bigelow:

The red light is going to go on in an about a minute.

Let me answer it this way.

The most powerful court probably in the world requested clarification of the rule and didn’t get it.

I don’t know who else is going to.

Unless there are any other questions?

John G. Roberts, Jr.:

Thank you, counsel.

Mr. Marshall, you have four minutes remaining.

Todd Marshall:

This Court has explained in Dugger v. Adams that a handful of inconsistent cases do not undermine the adequacy inquiry.

And unless the inconsistency becomes so profound that it undermines fair notice, it should not matter that there are some different rulings that can be shown.

There is no reason to think that a rule that has a bright deadline and then takes into considerations after the deadline is somehow preferable to a rule that takes into considerations discretionary circumstances in the first instance.

And unless there are any further questions?

John G. Roberts, Jr.:

Thank you, counsel.

John G. Roberts, Jr.:

The case is submitted.