Earlier this week, the United States Supreme Court granted certiorari in Gonzalez v. Thaler (No. 10-895), which presents the question of when the one-year statute of limitations for federal habeas petitions begins to run. In the decision below, 623 F.3d 222 (5th Cir. 2010), the Fifth Circuit affirmed circuit precedent holding that the clock begins to run when the time for seeking discretionary review of the conviction expires. This conflicts with the Eighth Circuit’s approach, which looks to the date on which the state court issues its mandate. Riddle v. Kemna, 523 F.3d 850 (8th Cir. 2008). Gonzalez’s petition was time-barred under the Fifth Circuit rule, but would have been permissible under the Eighth Circuit rule. The Supreme Court now has an opportunity to resolve the circuit split.
The Court, however, may decide the case on other grounds, in light of the state’s objection to the Fifth Circuit’s jurisdiction. Here is what the state said in its brief opposing certiorari:
The Fifth Circuit granted a certificate of appealability (COA) on the following question: “[W]hether Roberts has been overruled by Lawrence [ v. Florida, 549 U.S. 327 (2007)] and, if so, whether [Gonzalez's] habeas application was timely filed.” Gonzalez v. Thaler, 623 F.3d 222, 225 (5th Cir. 2010). This COA violates 28 U.S.C. 2253(c), as well as this Court’s decision in Slack v. McDaniel, 529 U.S. 473, 484 (2000), because it fails to address whether Gonzalez has made “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see also Slack, 529 U.S. at 484 (forbidding courts to issue COAs solely on procedural issues, and requiring habeas applicants to identify a substantial showing of the denial of a constitutional right along with the procedural issue that they wish to appeal). Respondent Thaler, however, failed to object to this defective COA, and the Fifth Circuit allowed Gonzalez to appeal without discussing these problems.
The Court has granted certiorari on this issue, too. Among other things, the Court will have to decide whether the state’s objection has been forfeited because it was not raised below. To the extent the objection is jurisdictional in nature, however, it may not be forfeitable.
What a shame that habeas law has become so technically complicated. Would that our pot-conviction courts were spending their time on correcting wrongful convictions and vindicating constitutional rights, rather than sorting out the arcane procedural disputes exemplified by Gonzalez.