Lawrence v. Florida and the Status of Cert Petitions:
Is a cert petition in the U.S. Supreme Court seeking review of a state court judgment part of the "state" review process, or is it a federal proceeding? Today the Supreme Court divided 5-4 on this interesting question of statutory interpretation in Lawrence v. Florida. Justice Thomas wrote the majority opinion, joined by Roberts, Scalia, Kennedy, and Alito. Justice Ginsburg dissented, joined by Stevens, Souter, and Breyer.

  The case involved the time for filing federal habeas petitions after state courts deny state habeas relief. Defendants get one year to file their petition, although that period is "tolled" — that is, put on temporarily hold — during the following circumstances:
The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.
28 U.S.C. 2244(d)(2).

  The question in the case was whether the filing of a petition for certiorari in the U.S. Supreme Court counts as "a properly filed application for State post-conviction or other collateral review." The defendant in the case was denied state habeas relief and then filed a petition for certiorari in the U.S. Supreme Court. He then waited a few months before filing his habeas petition in the U.S. District Court. By the time he filed in the U.S. District Court, more than a year had passed since the state court had denied review. The question is, does 28 U.S.C. 2244(d)(2) toll the 1-year statute of limitations while the defendant seeks review in the U.S. Supreme Court?

  In a majority opinion by Justice Thomas, the Court concluded that it does not. Review in the U.S. Supreme Court is not part of "State post-conviction or other collateral review," as it is not part of the state processes at all. It is a separate federal proceeding seeking relief in federal court, not a state proceeding seeking relief in state court. Further, certiorari review is optional to prisoners and not part of the statutory exhaustion process for filing claims.

  Justice Ginsburg's dissent took a different approach. In her view, review in the U.S. Supreme Court is part of "State post-conviction or other collateral review." U.S. Supreme Court review is sufficiently tied to state habeas proceedings that it is a part of that process; it's sort of a continuation of the state process, albeit technically before a federal court. Thus the State review process is still "pending" when a prisoner seeks U.S. Supreme Court review of state judgments.

  After reading the statute and the materials for the first time, I find the majority view much more persuasive. It seems pretty clear to me that a cert petition in the U.S. Supreme Court is a federal process rather than some sort of a 'continuation' of a state procedure. It's true that this will prompt many state habeas petitioners to file two petitions at roughly the same time, one seeking certiorari review (usually a "hail mary" pass) and one filed in the district court. But I don't see why this is much of an objection: the alternative is for counsel to file the first, wait a few months until it is rejected, and then file the second as a matter of course. Justice Ginsburg suggests that this would create "anomalous" and "bizarre" questions of jurisdiction in the district court in the rare case when the Supreme Court grants the petition for certiorari. But as the majority suggests, this rare case would seem like a natural candidate for equitable tolling (a point that Justice Ginsburg acknowledges but doesn't answer).

  In any event, it's an interesting case.