Tuesday, July 7, 2015

When does the one-year SOL for habeas corpus petition start?

You have one year to file a habeas corpus petition in challenging the constitutionality of your criminal conviction. In this case, the Second Circuit asks when that one year clock begins to run.

The case is Rosa v. United States of America, decided on May 13. Rosa was convicted on charges relating to child pornography. His conviction was affirmed on appeal and the Supreme Court denied certiorari. That certiorari denial normally triggers the one-year statute of limitations. Here, though, Rosa filed a motion with the Supreme Court to rehear the denial of his certiorari petition. Rosa argues that the one-year statute of limitations starts when the Supreme Court denied that motion.

Other Circuits have already decided this issue. They hold that the one-year time limit starts when the Supreme Court denies certiorari, not when it denies the motion to rehear that denial. The Second Circuit (Walker, Raggi and Droney) agrees with that reasoning. The one-year statute of limitations starts when the conviction becomes final. The Supreme Court says finality attaches when that Court affirms a conviction on the merits on direct review or denies a petition for certiorari. The Second Circuit says the certiorari petition is resolved when the petition is denied. The rehearing petition "does essentially nothing with respect to ... the denial of certiorari," so that "denial of certiorari is not delayed by a petition for rehearing of the certiorari denial."

No comments: