Wednesday, January 08, 2003

Supreme Court

Made it back from Atlanta sooner than expected, so I will in fact blog. I will blog tomorrow about federal appellate nominations in the news -- Judge Pickering to the Fifth Circuit, and the looking-quite-likely-now probable nomination of Ala. A.G. Bill Pryor to the Eleventh -- if I can figure out how to write something that is (a) potentially useful to readers and (b) not an act of shooting myself in the professional foot. But that can wait, because now we're on to Supreme Court predictions.

The second case for Monday 1/13 is yet another case brought by blogger-and-Supreme-Court-practitioner Tom Goldstein. It's Clay v. U.S., and it's about the time limits within which a person convicted of a crime in federal court must file a petition for post-conviction relief. Post-conviction relief – you can say "habeas corpus" if you like – is the process by which, even after you have been convicted and your conviction has been affirmed on appeal, you can file a new proceeding in a further attempt to show that your conviction was unconstitutional or otherwise unlawful.

The federal statute says that a federal prisoner has one year within which to file a petition for post-conviction relief. One year from what, you ask? That's the right question. One year from when the person's conviction becomes final, says the statute (in the part relevant here). When does a conviction become final? Right question again. Most courts say that it's when your petition for certiorari in the Supreme Court is denied or when the time within which you could have filed such a petition runs out, if you didn't file one. The Seventh Circuit (unpublished opinion, I think) disagrees, though, saying that – if you don't file a petition for certiorari upon the affirmance of your conviction – your one-year period for filing a petition for post-conviction relief begins to run when the appellate court's mandate issues, not when your time for filing a cert petition expired. Not that big a difference – less than 90 days – but big enough to make some petitions timely or not. Like Clay's, for instance.

Clay will win. The Supreme Court will REVERSE. In other related contexts, the concept of "finality of the conviction" has been construed to mean "when the time for petitioning for certiorari would have run out" – and, because we lawyers like symmetry and consistency, the concept ought to be construed the same way in this context. Even the United States agrees that this is the right result. (This is one of the good things about the government; sometimes it admits that it is due to lose a case in the Supreme Court.).

posted by sam 5:25 PM 0 comments

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