US Supreme Court Briefs

AUG11
2000
CLERK

P
IN THE

SUPREME COURT
OF THE UNITED
STATES
FIIJ~D



October Term, 1999


No. 99-1238


CHRISTOPHER ARTUZ, Superintendent,
Greenhaven Correctional Facility,

Petitioner,

V.


TONY BRUCE BENNETT,

Respondent.



On Writ of Certiorari to
The United States Court of Appeals
for the Second Circuit


BRIEF FOR RESPONDENT





ALAN S. FUTERFAS*
ELLEN B. RESNICK
Law Offices of Alan S. Futerfas
260 Madison Avenue
NewYork,NY 10016
(212) 684-8400
*Counsel of record
JOHN H. BLUME
Cornell Law School
110 Myron Taylor Hall
Ithaca, NY 14853
(607) 255-1030

KEIR M. WEYBLE
P.O. Box 11744
Columbia, SC 29211
(803) 765-1044
COUNSEL FOR
RESPONDENT





PETITIONER'S QUESTION PRESENTED

Is a state post-conviction application ~properlv filed~' within the meaning of28 U.S.C. 2244(d)(2), which tolls the
one-year statute of limitations for habeas corpus petitions, if it is procedurally barred from review under state law?


TABLE OF CONTENTS
Page
QUESTION PRESENTED
TABLE OF CONTENTS
TABLE OF AUTHORITIES iii
STATEMENT OF THE CASE
SUMMARY OF ARGUMENT
ARGUMENT

A. Introduction

B. The plain language of 2244(d)(2) permits tolling of the limitations period during the pendency of any
state application satisfying the prerequisites that must be met before a state court will allow the
application to be filed

C. Because Bennett's 1995 application satisfied New York's filing
requirements, it was and remains "a properly filed application for State post-conviction.. . review

D. The availability of tolling under 28 U.S.C. 2244(d)(2) does not depend on the procedural default status
of the individual claims
presented in a prisoner's application for post-conviction relief

E. Defining "properly filed application" as "application raising claims that are not 'mandatorily
procedurally barred"' affords prisoners no meaningful guidance as to the types of claims that will result
in
tolling under 2244(d)(2)

F. The claims in Bennett's 1995 application were not "mandatorily procedurally barred" under New York
law, and Bennett is therefore entitled to tolling even under the state's construction of 2244(d)(2)


CONCLUSION



11



.11

.11
TABLE OF AUTHORITIES

TABLE OF AUTHORITIES

FEDERAL CASES
Agency Holding Corp. v. Malley-Duff& Associates, Inc., 483 U.S. 143 (1987) 10
Atlantic Cleaners & Dyers, Inc. v. United States, 286 U.S. 427 (1932) 12
Barnhill v. Johnson, 503 U.S. 393 (1992) 12
Bennett v. Artuz, 199 F.3d 116 (2nd Cir. 1999) 6. 7
Coleman v. Thompson, 501 U.S. 722 (1991) 22, 30
Consumer Product Safety Commission v. GTE Sylvania, Inc., 447 U.S. 102 (1980) 11,23
Dictado v. Ducharme, 189 F.3d 889 (9th Cir. 1999) 15


Dugger v. Adams, 489 U.S.
401 (1989)
22
Engle v. Isaac, 456 U.S. 107
(
1
9
8
2
)


Freeman v. Giacomo Costa
FuAndrea, 282 F. Supp. 525
(E.D.Pa.1968)

Gozlon-Peretz v. United States,
4
9
8

U
.
S
.

3
9
5
,

1
1
1

5
.

C
t
.

8
4
0

(
1
9
9
1
)


Grayv. Netherland,518 U.S.
1
5
2

(
1
9
9
6
)


Greeson v. Sherman, 265 F.
S
u
p
p
.

3
4
0

(
W
.
D
.
V
a
.
1
9
6
7
)


Grffin v. Oceanic Contractors,
I
n
c
.
,

4
5
8

U
.
S
.

5
6
4

(
1
9
8
2
)


Gutierrez v. Ada, 120 S. Ct.
7
4
0

(
2
0
0
0
)


Harris v. Reed, 489 U.S. 255
(
1
9
8
9
)


Hoggro v. Boone, 150 F.3d
1
2
2
3

(
1
0
t
h

C
i
r
.

1
9
9
8
)


International Primate
Protection League v.
Administrators of Tulane
20

13

25

20,22

12

29

11

20, 24, 30

15


Educational Fund, 500 U.S. 72(1991)

Jarecki v. GD. Searle & Co., 367 U.S. 303 (1961)

iii


John Hancock Mutual LWe Insurance Co. v. Harris Trust &
Savings Bank,51O U.S. 86(1993) 24
Jones v. United Staws, 119 5. Ct. 2090 (1999) I I
Lovas: v. Vaughn, 134 F.3d 146 (3rd Cir. 1998) 14
McSheffrey v. Angelone, No. 98-65 19, 1999 WL 89403 (4th Cir. February 23, 1999) 14
Miles v. Apex Marine Corp., 498 U.S. 19(1990) 21
Mihonv. United States, 105 F.2d 253 (5th Cir.1939) 12
Musick, Peeler & Garrett v. Employers Insurance, 508 U.S. 286 (1993) 25

N.L.R.B. v. Amax Coal Co., a Division ofAmax, Inc., 453 U.S. 322 (1981) OSullivan v. Boerckel, 119 5. Ct. 1194
(1999)
Peterson v. Demskie, 107 F.3d 92 (2nd Cir. 1997)

Pipefitters Local Union No. 562 v. Unites States, 407 U.S.

Rose v. Lundy, 455 U.S. 509 (1982)

Ross v. Artuz, 150 F.3d 97 (2nd Cir. 1998)

Russello v. United States, 464 U.S. 16 (1983)

Slackv. McDaniel, 120 5. Ct. 1595 (2000)

Smith v. Ward, 209 F.3d 383 (5th Cir. 2000)

Tinker v. Hank.s, 172 F.3d 990 (7th Cir. 1998)

United States v. Lombardo, 241 U.S. 73(1916)

United States v. Oregon, 366 U.S. 643 (1961)

United States v. Ron Pair Enterprises1 Inc., 489 U.S. 235 (
385 (1972)
12

16,20,22,24

7

24
16,17,27

7

25


18


16


15

...12,19


25


11


1

passim
1989)
United States v. Wade, 388 U.S. 218 (1967) Villegas v. Johnson, 184 F.3d 467 (5th Cir. 1999)

iv


Webster v Moore, 199 F.3d 1256(11th Cir. 2000) 15
Weeklei v. Moore, 204 F.3d 1083 (11th Cir. 2000) 15
I~'illia,ns v. Taylor. 120 S.Ct. 1479 (2000) 11
IVilson v. Garcia, 471 U.S. 261 (1985) 10. 29

STATE CASES

Application of Board of Suprs of Chenango County for Appointment of Comrs
of Appraisal in Condemnation Proceeding, 261 N.Y.S. 76 (N.Y.Co.Ct. 1932) 19
Bituminous Casualty Corp. v. Clements, 3 So. 2d 865 (Fla. 1941) 13
Bolandv. Heck,65 P.2d 1213 (Okia. 1937) 13
In re Stays of Execution in Capital Cases, 471 S.E.2d 140 (S.C. 1996) 17
Matter of Norton, 53 N.Y.S. 924 (N.Y.Co.Ct. 1898) 19
People v. Bennett, 512 N.Y.S.2d 472 (2d Dept. 1987) 3
People v. Bennett, 517 N.Y.S.2d 1034 (1987) 3
People v. Dokes, 79 N.Y.2d 656 (N.Y. 1992) 31
Peoplev. Favor, 82 N.Y.2d 254 (N.Y. 1993) 31
People v. Madigan, 193 N.W. 806 (Mich. 1923) 13
People v. Sandoval, 314 N.E.2d 413 (N.Y. 1974) 4
Poetz v. Mix, 81 A.2d 741 (N.J. 1951) 13
FEDERAL STATUTES
28 U.S.C. 2244 passim
28 U.S.C. 2254 passim
28 U.S.C. 2255 12
28 U.S.C. 2262 12


V


28 U.S.C. 2263 22
28 U.S.C. p2264 -~

STATE STATUTES
16 Ariz. Rev. Stat. Ann., Rules of Civil Procedure. Rule 5(h) 13
Colorado Rules of Civil Procedure, Rule 5(h) 13
Michigan Court Rules (1985), Rule 2.107(G) 13
NewYorkCPL304 13
New York CPL 440.10 passim
New York CPL 440.30 4, 18, 32
New York Ct. Rules 670.12 6
Uniform Rules for the New York State Trial Courts 202.5 18
Virginia Code 8.10-654.1 17
MISCELLANEOUS
The American Heritage College Dictionary 1096 (3rd ed. 1993) 14

Sheri Lynn Johnson, Cross-Racial Identflcation Errors in Criminal Cases,
69 Cornell L. Rev. 934, 937-5 1 (1984) 1
Webster 's Deluxe Unabridged Dictionary 1442 (2d ed. 1979) 14
Webster 's Deluxe Unabridged Dictionary 28 (2d ed 1979) 23

Gary L. Wells & Eric P. Seelau, Eyewitness Identification: Psychological Research
and Legal Policy on Lineups, 1 Psychol. Pub. Pol'y & L. 765 (1995)








vi


STATEMENT OF THE CASE

The Crime and the Trial

In the early morning of February 1. 1983. New York City police officers Kevin Perham and Willard Cleaver
observed a blue Chevrolet Nova occupied by four black men parked on a street in Queens County, New York. JA 19.
The officers had no contact with the Nova or its occupants before being leaving to respond to another call. Id. When
that call proved unfounded, the officers returned to the Nova and observed that one of its occupants had left the
vehicle. Id The officers pulled up behind the Nova as it stopped.to let a second passenger out. Id. When the officers
turned on their red police lights, the car, now carrying two occupants, sped away. Id Believing the car to be connected
with "some robberies in two precincts," Perham and Cleaver pursued it. JA 48-49. Shots were exchanged but no one
was injured. JA 49. The officers soon cornered the Nova behind a school and its two remaining occupants fled through
a field. Id

Respondent, Tony Bennett, and his co-defendant, Derrick Chisholm, were arrested twenty-two days later and
charged with offenses relating to the chase. JA 49. In March, 1984, Bennett and Chisholm were tried jointly in the
Supreme Court of New York, Queens County. JA 123. The prosecution's case rested entirely on the identification
testimony of officers Cleaver and Perham, both of whom testified that they picked Bennett out of a lineup on
February 23, 1983.' JA 19-20. Bennett's fingerprints were not found anywhere in or on the Nova, JA 20, and the
prosecution



'The unreliability of eyewitness identification is well documented. See, e.g., Gary L. Wells
& Eric P. Seelau, Eyewitness Ident!fication: Psychological Research and Legal Policy on Lineups,
1 Psychol. Pub. Pol'y & L. 765 (1995); see also United States v. Wade, 388 U.S. 218 (1967). The
problems are compounded when the witness and the suspect are members of different races. See,
e.g., Sheri Lynn Johnson, Cross-Racial Identification Errors in Criminal Cases, 69 Cornell L. Rev.
934, 937-51 (1984).


offered no physical evidence against him. Officer Collins, who assisted in the investigation, testified that both officers
told him two days after the incident that they were uncertain whether they could identify the perpetrators. JA 20.

Julian Ishmael testified that Bennett was with him at Ishmael's home at the time of the incident. JA 21. Ishmael
explained that as he and Bennett were about to leave Ishmaels home, they heard shots and saw flashing lights. They
went to the street corner to see what was happening. JA

21. Half an hour later, they returned to Ishmael's house, where Bennett spent the night. Id After Bennett's next
witness, Elias Mahamed, was placed under oath, the prosecutor objected to his testimony on the ground that Bennett
had failed to include Mahamed in his notice of alibi. Id Bennett argued that Mahamed was not an alibi witness, but was
being called to corroborate Ishmael's testimony because he could verify that he saw Ishmael and Bennett together in the
crowd after the chase. JA 22. Although the prosecution was made aware of Bennett's intention to call Mahamed one
week prior to trial, the trial court ruled that Bennett's failure to include Mahamed in the notice of alibi precluded his
testimony. Id

Bennett also testified and confirmed that he had been at Ishmael's home at the time of the

chase. JA 22. He explained that he and Lshmael heard shots as they were leaving the house. Id.

They went to the scene and saw police officers crouched behind car doors with guns drawn. JA 22-

23. Bennett maintained that he spoke to Mahamed, who was watching the scene from his front door.

Bennett said he subsequently returned to Ishmael's house, where he spent the night. JA 23.

On March 27, 1984, Bennett was found guilty of two counts of Attempted Murder in the First Degree,
Criminal Possession of a Weapon in the Second Degree, two counts of Reckless Endangerment in the First Degree,
Criminal Possession of Stolen Property in the First Degree, and

2


Unauthorized Use of a Motor Vehicle. JA 24. His co-defendant, Chisholm, was found not guilty on all counts. Id. At
Bennett~s September 25. 1984 sentencing hearing, the trial judge said he was ~quite disturbed by the fact that the same
jury found that Chisholm was not involved and Bennett was and the police were just as firmly convinced that
Chisholm was [involved] as [they were that] Bennett was [involved]." JA 25. Bennett was sentenced to concurrent
indeterminate prison terms of from fifteen years to life on the attempted murder counts, and to lesser terms on the
remaining counts, to run consecutively to the greater terms. JA 25-26.

Tue Direct Appeal

Bennett raised six claims on direct appeal, one of which was that he had been deprived of his rights under the
federal and state constitutions to present a defense when the trial judge precluded Elias Mahamed's testimony for
failure to comply with the state's alibi notice requirement. JA 26-28. On March 2, 1987, the Appellate Division
affirmed the judgment of conviction, agreeing with Bennett that the trial court erred in precluding Mahamed's
testimony, but finding the error harmless

_4in light of the overwhelming evidence of guilt." People v. Bennett, 512 N.Y.S.2d 472, 473 (2d Dept. 1987). Bennett's
March 19, 1987, application for leave to appeal to the New York State Court of Appeals was denied on May 7, 1987.
See People v. Bennett, 517 N.Y.S.2d 1034 (1987), and his conviction became final on August 5, 1987, when the time for
filing a petition for writ of certiorari with this Court expired.

State Post Conviction Proceedings

On May 28, 1991, Bennett moved, pursuant to New York CPL 440.10, to vacate his convictions on grounds
of newly discovered evidence and ineffective assistance of counsel. JA 104. The trial court denied the motion in a
v~Titten decision dated August 2, 1991. JA 95. Bennett did

3


not seek leave to appeal.

Bennett filed a second pro se application for post-conviction relief pursuant to New York CPL ~440.l0 and
440.30 on June 5. 1995. JA 121. This application clearly stated that the submission was necessary to satisfy the
exhaustion prerequisite to pursuing federal habeas corpus relief, see JA 114, and alleged that Bennett's Sixth and
Fourteenth Amendment rights w'ere violated when the trial court barred the testimony of Elias Mahamed. JA 115.
Bennett also maintained the prosecutor committed misconduct by withholding his objection to Mahamed's testimony
until after the witness was placed under oath in the presence ofthejury. JA 115; 119. Bennett further alleged that his
right to be present at all material stages of trial was violated when his pre-trial Sandoval hearing2 went forward in his
absence. JA 120.

The state opposed the claims in Bennett's 1995 application on both procedural and substantive grounds. With
regard to Bennett's claim that the trial court erred in barring Mahamed's testimony, the state relied exclusively on CPL
440.1 0(2)(a),3 contending that this "precise issue" had already been resolved on direct appeal. JA 128. In response to
the prosecutorial misconduct claim, the state argued both that Bennett had not established facts demonstrating
prosecutorial misconduct and that because the Appellate Division had already found the error in excluding Mahamed's
testimony harmless, Bennett was unable to establish prejudice. The state defended


In New York, a "Sandoval hearing" is a pre-trial proceeding in which a trial court makes "an advance ruling as
to the use by the prosecutor of prior convictions or proof of the prior commission of specific criminal, vicious or
immoral acts for the purpose of impeaching a defendant's credibility." People v. Sandoval, 314 N.E.2d 413, 416 (N.Y.
1974) (citations omitted).

3CPL 440.l0(2)(a) provides that a "court must deny a motion to vacate ajudgment when:
(a) The ground or issue raised upon the motion was previously determined on the merits upon an appeal from the
judgment, unless since the time of such appellate determination there has been a retroactively effective change in the
law controlling such issue[.]"
4


against the right to be present at the Sandoval hearing ctaim on several grounds. First, it argued that the trial record
established that Bennett had in fact been present at the hearin~. J.-x 129. Second. it araued that even if the record did
not conclusively demonstrate Bennett~s presence. it contained thcts sufficient to have permitted review on direct
appeal. thereby making collateral relief unavailable pursuant to CPL 440. 1 0(2)(c).' Id Third, the state contended that.
"even if the record was not sufficient to permit review on direct appeal, [Bennett] could have caused such facts to
appear on the record," and his claim should therefore fail under CPL 440.l0(3)(a).5 JA 130. Fourth, the state claimed
that "even if this is a purely off-the-record claim, it is still procedurally barred because [Bennetti could have raised this
issue in his original 440 motion, but unjustifiably failed to do so, thereby subjecting the claim to denial pursuant to
CPL 440.1 0(3)(c).6 Id. Finally, the state set forth a defense on the merits. See JA 130-131. In his prose response to
the state's opposition, Bennett




4CPL 440.10(2)(c) provides that, "Notwithstanding the provisions of subdivision one, the court must deny a
motion to vacate ajudgment when: ... (c) Although sufficient facts appear on the record of the proceedings underlying the
judgment to have permitted, upon appeal from such judgment, adequate review of the ground or issue raised upon the
motion, no such appellate review or determination occurred owing to the defendant's unjustifiable failure to take or
perfect an appeal during the prescribed period or to his unjustifiable failure to raise such ground or issue upon an
appeal actually perfected by him[.]"

5CPL 440.1 0(3)(a) provides, in relevant part, that, "Notwithstanding the provisions of subdivision one, the
court may deny a motion to vacate a judgment when: (a) Although facts in support of the ground or issue raised upon
the motion could with due diligence by the defendant have readily been made to appear on the record in a manner
providing adequate basis for review of such ground or issue upon an appeal from the judgment, the defendant
unjustifiably failed to adduce such matter prior to sentence and the ground or issue in question was not subsequently
determined upon appeal."

6CPL 440.l0(3)(c) provides that, "Notwithstanding the provisions of subdivision one, the court may deny a
motion to vacate ajudgment when:... (c) Upon a previous motion made pursuant to this section, the defendant was in a
position adequately to raise the ground or issue underlying the present motion but did not do so."
5


again indicated his intent to pursue federal habeas corpus relief following the exhaustion of state court remedies. See JA
139 (citing 'Title 28 USC 2254(b)~'): JA 141 (referring to ~~the reviewinu Federal District Court").

On November 30, 1995, the trial court denied Bennett's motion in a four word oral decision:

~'The motion is denied." JA 143. As the state acknowledges in its brief, despite Bennett~s repeated written requests, a
written version of the court's decision has never been served on Bennett, renderinghimunabletoseek leavetoappeal. See
Pet. Brf. 4;see also N.Y. Ct. Rules 670.12(b)(l) & (b)(2)(viY'

Federal Habeas Corpus Proceedings

District Court

On February 11, 1998, Bennett filed a pro se petition for a writ of habeas corpus in the United States District
Court for the Eastern District of New York. He raised three claims: (i) that he was deprived of his right to a fair trial, to
present witnesses in his defense, and to confront witnesses, as a result of the trial court's preclusion of Mahamed's
testimony; (2) that his absence from the Sandoval hearing violated his right to due process; and, (3) that he was
deprived of his right to effective assistance of counsel as a result of his trial attorney's failure to object to improper
remarks made by the prosecutor during summation. See Appendix to Second Circuit Brief of Appellant (hereinafter
"Sec. Cir. App.") at AIO-Al 1

Two weeks later, on February 25, 1998, the district court dismissed the petition sua sponte.



in a ruling not challenged by the state in this proceeding, the Second Circuit held that Bennett's 1995
application "was and is still 'pending' in the New York courts for purposes of the AEDPA tolling provision." Bennett
v. Artuz, 199 F.3d 116, 120 (2nd Cir. 1999). The claims presented in the federal habeas petition at issue in this case are
therefore unexhausted.
6


The court's order of dismissal relied exclusively on then-prevailing Second Circuit precedent permitting dismissal of
habeas petitions in cases that became final prior to the AEDPA's effective date if they had not been filed within "a
reasonable time." Sec. Cir. App. at 1 7-1 8 (citinC Peterson v. Demskie. 107 F.3d 92 (2nd Cir. l997)).~ Noting that
Bennett's petition was filed "one year and nine months after the effective date of AEDPA and more than ten years
after his conviction became final," the court found the petition "clearly untimely under Peterson." Sec. Cir. App. at 18.

Second Circuit

The Second Circuit reversed the judgment of the district court. Assuming the truth of Bennett's representations
concerning the state court's failure to serve him with a written order denying his 1995 post-conviction relief
application, the court of appeals held, in relevant part, that Bennett's 1995 application "was and is still 'pending' in the
New York courts for purposes of [2244(d)(2)]," and therefore, "the one-year grace period he has to file his petition
under Ross [v. Artuz, supra] has not yet commenced." Bennett v. Artuz, 199 F~3d 116, 120-121 (2nd Cir. 1999). The
court of appeals further rejected the state's contention that Bennett's 1995 application was not ~'properly filed" within
the meaning of 2244(d)(2) because the claims it contained "were 'subject to a mandatory procedural bar under state
law."' Id at 121. The court explained that "[dietermining whether a pending-state-court motion is procedurally barred..,
is beyond the appropriate role of a federal court in addressing whether a state post-conviction application was
properly filed." Id. at 122. The court further observed that, "[hlad Congress 'intended to condition tolling on a state
court finding of merit, it could have drafted 2244(d)(2) to exclude frivolous petitions.. . [and toll clearly


'Peterson's "reasonable time" standard was subsequently clarified in Ross v. Artuz, 150 F3d 97, 103 (2nd Cir.
1998), to afford prisoners whose convictions became final prior to the AEDPA'S effective date one full year in which
to file a petition for federal habeas corpus relief.
7


withh[o]ld tolling from prisoners filing . . . procedurally barred claims."' Id. (quoting J'ille gas v. Johnson. 184 F.3d 467,
470 (5th Cir. 1999)) (all but first modification by court of appeals). Finally. after rejecting the state's argument that a
narrow construction of"properlv filed" would generate ~'a paper flow' by state prisoners" attempting to extend their
federal habeas filing dates. id. at 122. the court adopted the straightforward rule that 2244(d)(2)'s "properly filed"
requirement is satisfied when "an application for state post-conviction relief recognized as such under governing state
procedures has been filed." Id at 123.

SUMMARY OF ARGUMENT

Under the plain language of 2244(d)(2), a "properly filed application" for state post-conviction review is
exactly that: an application that satisfies the state's filing requirements. This rule is both workable and true to the
statutory language. Adhering to 2244(d)(2)'s focus on the filing status of a prisoner's "application," rather than on the
eligibility for merits review of individual claims contained within that application, minimizes and simplifies the review
a federal court must undertake to determine the timeliness of a habeas petition. This understanding of "properly filed
application" poses no legitimate threat to states' interest in expediting post-conviction litigation; it does nothing to
lessen non-capital prisoners' incentives to seek speedy resolution of their claims for relief, nor does it deprive the
states of the mechanisms they have long employed to force death-sentenced prisoners to proceed through the capital
appeals process.

The state's proposed rule that an application for post-conviction relief is not "properly filed" within the
meaning of 2244(d)(2) if it is "mandatorily procedurally barred under state law"

is unfaithful to the statutory language, casually converting "properly filed application" into "application raising
claims that are not procedurally barred." It is also unworkable in that it affords


8


prisoners no meaningful guidance as to when a state application for collateral relief will trigger tolling under
2244(d)(2). and requires federal habeas courts to undertake a complex analysis of the state court record. the governing
state court rules of procedure. and the merits of the underlyine case merely to answer the threshold question whether a
habeas petition is timely.

The state's proposed rule would spawn widespread confusion and increased costs to the judiciary. Prisoners
seeking to minimize the risk of untimeliness would file federal habeas petitions containing unexhausted claims, thereby
placing federal habeas courts in the position of deciding in the first instance whether a state court would be likely to
consider those claims on the merits. Moreover, giving meaning to the state's rule and its exceptions would require the
development of an entirely new and complex area of federal habeas corpus doctrine: The net result of the state's
mandatory procedural bar rule would be to increase the work loads of state and federal judges with no corresponding
benefits, not even to the states.

Finally, even under the state's proposed rule, Bennett's 1995 application for state post-conviction relief must
be deemed "properly filed." Under New York law, each of the procedural defenses the state raised to Bennett's claims
required the state post-conviction court to make one or more substantive determinations before being authorized to
deny Bennett's application. This, combined with the fact that the state also defended against Bennett's claims in part
on the merits, makes it impossible to conclude from the state court's four-word oral denial of Bennett's application that
his claims were "mandatorily procedurally barred" under New York law.

ARGUMENT

A. INTRODUCTION.

Every year, thousands of state prisoners seek collateral review of their convictions. Due to


9


the exhaustion requirement, most inmates first pursue state post-conviction remedies. Many of these individuals,
however, will eventually file a federal petition for writ of habeas corpus. Because AEDPA's new statute of limitations
requires that most federal petitions be filed within one ~ear of the petitioner's conviction becoming final on direct
review, subject to a tolling provision for "properly filed applications" for state post-conviction review, prisoners who
are contemplating seeking federal habeas review will inevitably ask the following question: what is a "properly filed
application"? Without knowing the answer to that basic question, they will be uncertain as to when they must file in
federal court in order to satisfy the statute of limitations. Thus, the impact of the Court's decision in this case will be
far reaching, and it is essential to the orderly administration of justice that the Court announce a precise, workable rule
that is understandable to pro se inmates, to counsel, and to federal judges. See Wilson v. Garcia, 471 U.S. 261, 275
(1985) ("the legislative purpose to create an effective remedy [through 1983] for the enforcement of federal civil
rights is obstructed by uncertainty in the applicable statute of limitations, for scarce resources must be dissipated by
useless litigation on collateral matters"); see also Agency Holding Corp. v. Malley-Duff & Associates, Inc., 483 U.S.
143, 150 (1987) (quoting Wilson, 471 U.S. at 272) ("a uniform statute of limitations is required [in RICO context] to
avoid intolerable "uncertainty and time-consuming litigation"). Fortunately, a clear-cut, easily administrable rule is
evident from the statutory language.

B. THE PLAIN LANGUAGE OF 2244(D)(2) PERMITS TOLLING OF THE
LIMITATIONS PERIOD DURING TIlE PENDENCY OF ANY STATE APPLICATION
SATISFYING THE PREREQUISITES THAT MUST BE MET BEFORE A STATE
COURT WILL ALLOW THE APPLICATION TO BE FILED.


The state's brief foregoes any meaningful analysis of the statutory language in favor of a generalized discussion
of Congress' intent to accelerate habeas corpus litigation through the AEDPA. But this Court has made clear that "the
starting point for interpreting a statute is the

10


language of the statute itself," and that, "[aibsent a clearly expressed legislative intention to the contrary, that language
must ordinarily be regarded as conclusive." Consumer Product Sahajy Commission v. GTE Sylvania, lnc., 447 U.S. 102.
108 (1980); see also (Michael) Williams i'. Tailor. 120 S.Ct. 1479, 1487 (2000) citing United States v. Ron Pair
Enterprises, Inc.. 489 U.S. 235. 241 (1989) ("We start, as always, with the language of the statute").

This case turns on the meaning of 2244(d)(2)'s phrase, "properly filed application." "[Wihen construed in the
relevant context,"9 2244(d)(2)'s "properly filed" clause functions as the modifier for "one grammatical subject," the
word "application." International Primate Protection League v. Administrators of Tulane Educational Fund, 500 U.S.
72, 79-80(1991). Because "words and people are known by their companions," Gutierrez v. Ada, 120 S.Ct. 740, 744
(2000), ascertaining the meaning of the modifier "properly filed," requires first that its subject, "application," be
defined.

While 2244(d)(2) does not expressly define "application," other subdivisions of 2244 provide clear evidence
of Congress' understanding of this term. See Jones v. United States, 119 S.Ct. 2090, 2102 (1999), ("Statutory language
must be read in context"); Jarecki v. G. D. Searle & Co., 367 U.S. 303, 307 (1961) (a word in a statute "gathers
meaning from the words around it"). Specifically, 2244(b)(1) and (2) refer to "[a] claim presented in a. ..habeas corpus
application," indicating that Congress defines an "application" as a document or pleading "in" which a "claim" is
"presented" to a court for collateral review. See also 2244(b)(4) ("any claim presented in a[n]





9The full text of 2244(d)(2) provides as follows: "The time during which a properly filed application for State
post-conviction or other collateral review with respect to the pertinentjudgment or claim is pending shall not be
counted toward any period of limitation under this subsection."
11


application").'0 Because "nothing in the structure or purpose of [2244(b) and (d)] suggests a reason for interpreting
these adjacent subsections differently'." Barnhill v. .Iohnson. 503 U.S. 393. 406 (1992). it is appropriate to apply the
"natural presumption that identical words used in different parts of the same act are intended to have the same
meaning," Atlantic Cleaners & Dyers, Inc. v. United States, 286 U.S. 427, 433 (1932). Applying this rule of statutory
construction, "application," as it is used in 2244(d)(2), refers simply to the document in which a state prisoner sets
forth his claims for post-conviction relief

Neither the text of the AEDPA nor its legislative history offer any express indication of when a document or,
in the terms of 2244(d)(2), an "application" should be deemed "filed," properly or otherwise. However, "[w]here
Congress uses terms that have accumulated settled meaning.

a court must infer. . . that Congress means to incorporate the established meanings of these terms." N.L.R.B. v. Amax
Coal Co., a Division ofAmax, Inc., 453 U.S. 322,329(1981). Outside of AEDPA, the meaning of the term "filed" is well
established. In United States v. Lombardo, 241 U.S. 73 (1916), for example, this Court held that "[a] paper is filed
when it is delivered to the proper official and by him received and filed." Lombardo, 241 U.S. at 76 (citations omitted).
Numerous lower federal courts and state courts have adopted similar definitions. See, e.g., Milton v. United States, 105
F.2d 253, 255 (5th Cir.1939) ("The word 'filed' ... requires of one filing a suit, merely the depositing of the instrument
with the custodian for the purpose of being filed"); Greeson v. Sherman,



"'This definition is equally applicable to words such as ~'petition" and "motion," which are often used
interchangeably with "application." Compare, e.g., 28 U.S.C. 2262(b)(1) ("a habeas corpus application under section
2254") with 2262(b)(3) ("a habeas corpus petition under section 2254"); compare 2263(b)(2) ("petition for post-
conviction review or other collateral relief') with 2244(d)(2) ("application for State post-conviction or other collateral
review"); see 2255 ("a motion under this section").
12


/
//
I

265 F.Supp. 340, 342 (W.D.Va. 1967) (a pleading is filed when it "is delivered to an officer of the

court who is authorized to receive it"): Poet: v. Mix. 7 N.J. 436. 442. 81 A.2d 741. 743 (N.J. 1951) ("In
contemplation of law, a paper or pleading is considered as filed when delivered to the proper custodian and
received by him to be kept on file")." Likewise, most state rules of court contain analogous definitions. See
e.g., 16 Ariz. Rev. Stat. Ann. Rules of Civil Procedure, Rule 5(h) ("The filing of pleadings and other papers
with the court as required by these Rules shall be made by filing them with the clerk of the court. . ."); Colorado
Rules of Civil Procedure, Rule 5(e) ("Filing With Court Defined. The filing of pleadings and other papers with
the court as required by these rules shall be made by filing them with the clerk of the court. . ."); Michigan Court
Rules (1985), Rule 2.107(G) ("Filing With Court Defined. The filing of pleadings and other papers with the
court as required by these rules must be with the court clerk. . ."); New York CPLR 304 ("filing shall mean the
delivery of the summons with notice, summons and complaint, notice of petition or order to show cause to the
clerk of the court in the county in which the action or special proceeding is brought..



With the meaning of "filed" in hand, understanding the phrase "properly filed" is straightforward. The
adverb "properly" is ordinarily understood to describe the doing of an act



"See also, e.g., Freeman v. Giacomo Costa Fu Andrea, 282 F.Supp. 525, 527 (E.D.Pa. 1968) ("it is
settled law that delivery of a pleading to a proper official is sufficient to constitute filing thereof'); Bituminous
Casualty Corp. v. Clements, 3 So.2d 865, 866 (Fla. 1941) ("Filing a pleading under the modem practice consists
simply in placing it in the hands of the proper officer, to be preserved and kept by him in his official custody,
as a public record. It is deemed filed when, for that purpose, it is delivered to, and received by, the proper
officer who is ordinarily the clerk of court for the county in which the action was brought.") (internal citations
omitted); Boland v. Heck, 65 P.2d 1213, 1214 (OkIa. 1937) ('A pleading is 'filed,' within the meaning of the
statute, when it is delivered to the court clerk for that purpose. . .") (internal citations omitted); People v.
Madigan, 223 Mich. 86, 89 193 N.W. 806, 807 (Mich. 1923) ("It is a well-recognized general rule that a paper
or document is filed... when it is delivered to and received by the proper officer to be kept on file").
13


correctly, or the accomplishment of a task according to expectations. See W'ebster's Deluxe Unabridged Dictionary
1442 (2d ed. 1979) (defining properly. inter alia. as "conforminu to an accepted standard or to good usage; correct"):
The American Heritage College Dictio nary 1096 (3d ed. 1993) (defining proper, inter alia, as "Called for by rules or
conventions~ correct"). When the task to be accomplished is the filing of a document, that task is completed
"properly" when the established requirements for filing delivery of the correct document to the designated authority
at the right time, see supra have been met. Applying this reasoning to 2244(d)(2), when the document to be filed is
an "application" for state post-conviction relief, that application must be deemed "properly filed" when it has been
delivered to the custodian designated to receive it in accordance with the rules governing its acceptance for filing.

This reading of 2244(d)(2)'s "properly filed application" requirement is supported by nearly all of the federal
courts of appeals that have addressed the question. In Lovasz v. Vaughn, 134 F.3d 146 (3rd Cir. 1998), for example,
the Third Circuit held that "a~ 'properly filed application' is one submitted according to the state's procedural
requirements, such as the rules governing the time and place of filing," and that, "[i]f a petitioner complies with these
procedural requirements, or other procedural requirements the state imposes, his petition, even a second or successive
petition, is 'a properly filed application' for purposes of 2244(d)(2)." Lovasz, 134 F.13d at 148. In addition to the
Second Circuit's decision in this case, the Fourth, Fifth, Ninth, and Tenth Circuits have taken similar positions. See
McSheffi'ey v. Angelone, No. 98-65 19, 1999 WL 89403 at *2(4th Cir. February 23, 1999) ("a state application is
properly filed if it complies with the state procedural requirements for successive collateral attacks on a conviction,
such as timeliness and proper place of filing"); Ville gas v. Johnson, 184 F.3d 467, 473 (5th Cir. 1999) ("a 'properly
filed application' for 2244(d)(2)


14


purposes is one that conforms with a state's applicable procedural filing requirements"): id at 473 n.2 (defining
"procedural filing requirements" as "those prerequisites that must be satisfied before a state court vill allow a petition
to be filed and accorded some level ofjudicial review"): Dictado i'. Ducharme. 189 F.3d 889. 892 (9th Cir. 1999) (holding
that "~a properly filed application' [is] an application submitted in compliance with the procedural laws of the state in
which the application was filed," but that state petition at issue was not properly filed due to noncompliance with
state's '~rules governing the time of filing"); Hoggro v. Boone, 150 F.3d 1223, 1226 n. 4 (10th Cir. 1998) (untimely
appeal of denial of state post-conviction relief not "properly filed" )_1

In addition to its faithfulness to the statutory language, this understanding of 2244(d)(2) is both clear and
workable. By looking only to hard and fast, non-discretionary state filing requirements, the rule Bennett proposes
simplifies the state law inquiry that a federal court must undertake in making the threshold timeliness determination.
The rule's clarity and ease of application also make it accessible and understandable to all litigants, thereby minimizing
the likelihood that petitioners will bypass potentially available state remedies for fear of unwittingly



'2The Eleventh Circuit is the only court of appeals to have taken a contrary position. In Weekley v. Moore, 204
F.3d 1083(11th Cir. 2000), a divided panel found the petitioner's state post-conviction application not "properly filed"
because it was successive. In reaching this result, however, the panel majority undertook virtually no analysis of the
statutory language, relying instead on a miseharacterization of the Ninth Circuit's decision in Dictado v. Ducharme,
supra, and on the Seventh Circuit's inapposite decision in Tinker v. Hanks, 172 F.3d 990, 991 (7th Cir. 1998)
(application for leave to file successive state habeas petition not a "properly filed application" for purposes of
2244(d)(2)). Weekley, 204 F.3d at 1085-1086. A different panel of the Eleventh Circuit and a panel of the Ninth
Circuit have also concluded that post-conviction applications which are untimely under a state's limitations period are
not "properly filed" within the meaning of 2244(d)(2). Webster v. Moore, 199 F.3d 1256, 1258 (11th Cir. 2000)
(third state petition, "which the state trial court dismissed as procedurally barred by the two-year [state] statute of
limitations. .,was not 'properly filed' within the meaning of 2244(d)(2)"); Dictado v. Ducharme, 189 F.3d 889. 892
(9th Cir. 1999) (state petition that "did not comply with Washington's rules governing the time of filing . . . was not
'properly filed"').
15


squandering their time under the federal limitations period.'3 This in turn preserves and furthers the fundamental
requirement that, in the interests of federalism and comitv. state courts be civen the first opportunity to pass on the
merits of a prisoner's constitutional claims. See 2254(b) and (c): see also O'Sullivan v. Boerckel, 119 S.Ct.
1194(1999); Rose v. Lundy, 455 U.S. 509 (1982).

The state's brief contains several unsupported assertions that the rule Bennett proposes will "thoroughly
undermine" or "cont~avene[] the obvious purposes of [2244(d)]." Pet. Br. 30. The first argument is that unless this
Court adopts the state's understanding of 2244(d)(2), prisoners will file countless state petitions in order to extend
the federal limitations period. See Pet. Br. 37. But non-capital prisoners have no incentive, regardless of the existence
of a limitations period, to delay adjudication of their claims for relief, and there is simply no evidence suggesting that a
construction



"Some courts of appeals have recognized that sometimesjudges, as opposed to non-judicial court personnel,
determine whether or not documents will be accepted for filing. Under such a formulation, an application for state
post-conviction relief is "properly filed" if it satisfies the prerequisites that must be met before a state court will allow
it to be filed and accorded review beyond the essentially ministerial determination whether the applicant has satisfied
clearly-defined, non-discretionary state court filing requirements. The Fifth Circuit's recent decision in Williams v.
Cain, ___F.3d , 2000 WL 867839 (5th Cir. June 29, 2000), illustrates this rule. In Williams, the Fifth Circuit rejected
the petitioner's claim of entitlement to tolling for the time during which his untimely application for a supervisory writ
to review the denial of state post-conviction relief remained before the Louisiana Supreme Court. Distinguishing the
case from Villegas v. Johnson, 184 F.3d 467, 473 (5th Cir. 1999), in which a successive Texas state habeas petition
was held to be "properly filed," and Smith v. Ward, 209 F.3d 383 (5th Cir. 2000), in which an untimely Louisiana
application for post-conviction relief was deemed "properly filed," the court explained that, in those cases,
the state court had to make a determination on issues related to the substance of the state applications to
determine whether the applications fell within a clearly-defined exception to the time requirements. In this
case, by contrast, the question whether a state application.., for a supervisory writ is timely filed under [the
governing state court rule] requires no examination relating to the merits. There was no question that the state
application filed here was untimely under state law. The Louisiana Supreme Court did not need to make any
determination related to the merits to reach this decision.
Williams, 2000 WL 867839 at 5.
16


/

/
/
of"properly filed application" that is faithful to the statutory language will somehow motivate these

prisoners to file abusive applications. See Rose v. Lundv. 455 U.S. 509. 520 (1982) ("The prisoners principal
interest, of course, is in obtaining speedy' federal relief on his claims"). .~s for the truly vexatious litigants,
they will continue to file in state and federal court without regard to the rules. just as this small handful of
prisoners now file procedurally barred claims, and abusive petitions. No construction of "properly filed
application" will dissuade them from doing so.

The state's brief also suggests that death-sentenced inmates must be prohibited from repeated
I.

filings designed to cheat the executioner. See Pet. Br. 36-3 7. But there is no evidence that death-

sentenced prisoners are filing repetitive state applications for the purpose of extending 2244(d)'s limitations
period. In fact, there is not a single reported decision in which a capital prisoner has attempted to do so, even
in the circuits that have had the "time and place of filing" construction of "properly filed application" in place
for a substantial period of time. Furthermore, both before and since passage ofAEDPA, states have utilized a
number of methods to force death-sentenced inmates to proceed through the capital appeals process. Some
states, for example, have established strict time limitations of their own, see, e.g., Va. Code 8.10-654.1 (sixty
day limitations period for filing of state habeas petitions in capital cases). Many states employ the
straightforward method of setting execution dates to force capital prisoners to initiate federal habeas corpus
proceedings in order to obtain a stay of execution. See In re Stays of Execution in Capital Cases, 471 S.E.2d 140
(S.C. 1996). Nothing in the rule Bennett proposes would impair the states' ability to utilize these or any other
methods to accelerate collateral review in capital cases,'4 and the state's "the sky is falling"



4For example, many states use a procedure modeled on Rule 4 of the Federal 2254 Rules, whereby
post-conviction petitions are promptly routed to an assignment judge for preliminary screening and, if
warranted, summary dismissal. Additionally, in some states, post-conviction
17


arguments provide this Court no legitimate justification for departing from the plain meanin2 of 2244(d)(2)'s words.
See Slack v. .~tcDaniel. 120 S.Ct. 1595. 1606 (2000) ("We reject the State's argument that refusing to eke a new
meaning to the established term 'second or successive' opens the door to the abuses described"). And, as this Court
recognized in Slack. in the unlikely event that capital prisoners were to identify a means of exploiting the rule
prescribed by the statute, "the State[sJ remains free to impose proper procedural bars to restrict repeated returns to
state court for postconviction proceedings." ld

C. BECAUSE BENNE'TT'S 1995 APPLICATION SATISFIED NEW YORK'S FILING REQUIREMENTS, IT
WAS AND REMAINS "A PROPERLY FILED APPLICATION FOR STATE POST-CONVICTION...
REVIEW."

New York law has no specific requirements for the filing of a Motion to Vacate Judgment pursuant to CPL
440.l0 or 440.30. But New York law does provide a clear, unambiguous definition of "filed." For example, 304 of
the New York Civil Practice Law and Rules, entitled "Method of commencing action or special proceeding," provides-
that "filing shall mean the delivery of the summons with notice, summons and complaint, notice of petition or order to
show cause to the clerk of the court in the county in which the action or special proceeding is brought . . Similarly,
202.5 of the Uniform Rules for the New York State Trial Courts, entitled "Papers Filed in Court," provides that "[a]ll
papers for.. . consideration of the court shall be presented to the clerk of the trial court in the appropriate courtroom or
clerk's office . . .. except that where the clerk is unavailable or the judge so directs, papers may be submitted to the judge
and a copy filed with the clerk at the first available opportunity." N.Y. Ct. Rules 202.5(b) (subtitled "Submission of
papers




petitioners whose repetitive filings have been established to be meritless and abusive are simply barred from filing new
challenges.
18


tojudge"). New York decisional law also adheres to the commonly understood meaning of"filing." See. e.g. . Application
of Bd. of Sup rs ofChenango Counn fw' Appointment of Con? rs ofAppraisal
Concle,nnation 261 84 general trend
in Proceeding. N.Y.S. 76. (N.Y.Co.Ct. 1932) (followinu the"

ofjudicial decisions," described as being 'to the effect that the delivery of a paper to an official. for the purposes of
safe-keeping and as a public record, constitutes the act of 'filing"'); see also id. quoting, inter alia, United States v.
Lombardo, 241 U. 5. 73, 76(1916); Matter of Norton. 53 N. Y. 5. 924 (N.Y.Co.Ct. 1898).

It is undisputed that Bennett complied with New York's requirements for properly filing his 1995 application.
There has never been any suggestion, either before this Court or during the proceedings in the lower courts, that
Bennett failed to deliver his application to the correct custodian, or that the state court declined to accept the
application for filing. The Second Circuit was therefore correct to conclude that Bennett's 1995 application was a
"properly filed application" within the meaning of 2244(d)(2). Furthermore, because that application has yet to be
decided in the manner prescribed by New York law, Bennett's time for filing his petition for federal habeas corpus
relief has not begun to run. In short, it was and remains a properly filed application for state post-conviction review.

D. THE AVAILABILITY OF TOLLING UNDER 28 U.S.C. 2244(d)(2) DOES NOT
DEPEND ON THE PROCEDURAL DEFAULT STATUS OF THE INDIVIDUAL
CLAIMS PRESENTED IN A PRISONER'S APPLICATION FOR POST-CONVICTION
RELIEF.


The state's brief asserts that 2244(d)(2)' s "properly filed application" language really means "application
raising claims not mandatorily procedurally barred under state law." See Pet. Br. 23. We will return to the issue of what
it means to say "mandatorily procedurally barred" in section ~ but we begin by demonstrating that the state's reading of
the relevant statutory language whose

19


ongins clearly lie not in the text of the statute, but in what the state contends Congress "must have meant" amounts to
a dramatic, unsupportable redrafting of 2244(d)(2).

The fundamental flaw in the state's rule is that it ienores Congress' use of the word '~application" in the
statutory text, treating it instead as a s nonvm for "claim." Misreading "application" in this manner is the only way to
facilitate use of the procedural default doctrine as the test for whether an application is "properly filed." Procedural
default is a doctrine of issue, or claim. preclusion, not a wholesale bar to the "application" in which potentially barred
claims are brought before a court.'5 Thus, for the state's rule to eI.'en appear marginally workable and consistent with
existing habeas law, the distinction between "application," as Congress wrote it, and "claim," as the state reads it, must
be ignored. Discounting the significance of "application" for the sake of this ill-fitting procedural default theory results
in similar errors with regard to the word "filed," which the state treats as "presented," and the word "properly," to
which the state attaches unwarranted and unnatural meanings.

As discussed in detail supra at ~, in the context of modern procedures for collateral review of state criminal
convictions, the word "application" is commonly understood to refer to a document or written pleading in which a
prisoner sets forth his claims for relief. That Congress had this definition in mind and that it appreciated the
distinction between an "application" and a "claim"

when it drafted the AEDPA is confirmed by the language of 2244(b)( 1) and (2), both of which



'~See, e.g., O'Sullivan v. Boerckel, 526 U.S. 838, 848 (1999), citing Coleman v. Thompson, 501 U.S. 722, 73 1-
732 (1991); Engle v. Isaac, 456 U.S. 107, 125-126, n.28 (1982) ("Boerckel's failure to present three of his federal
habeas claims to the Illinois Supreme Court in a timely fashion has resulted in a procedural default of those claims");
Gray v. Netherland, 518 U.S. 1 52, 161(1996) ("Petitioner's failure to raise his Brady claim in state court implicates the
requirements in habeas of exhaustion and procedural default"); Harris v. Reed, 489 U.S. 255, 263 (1989) ("procedural
default does not bar consideration of a federal claim.., unless..
20


refer to "[a] claim presented in a second or successive habeas corpus application." (emphasis added). Congress'
understanding of the distinction between an application and a claim, and its

decision to use "application," not "claim," as the subject of 2244(d)(2)'s "properly filed" phrase. completely
undermine the "mandatory procedural bar" rule advocated by the state. Claims are subject to rejection under the
doctrine of procedural default, applications are not. Moreover, while Congress is presumed under the rules of statutory
construction to be aware of this basic principle of habeas jurisprudence, Miles v. Apex Marine Corp., 498 U.S. 19. 32
(1990) ("We assume that Congress is aware of existing law when it pass&s legislation"), reliance on that presumption
here is not necessary. Congress expressly indicated its familiarity with the distinction between review on the merits
and disposition on other grounds in at least two of the AEDPA's provisions: In 2254(d), Congress imposed limits on
federal courts' ability to grant habeas relief "with respect to any claim that was adjudicated on the merits in State court
proceedings.. ." Similarly, in 2264(a), Congress limited federal habeas review in capital cases from qualifying states to
consideration of"a claim or claims that have been raised and decided on the merits in the State courts. . ." Given Congress'
demonstrated awareness of the difference between a "claim" and an "application," and of the applicability of
procedural default principles to the former but not the latter, the state's "mandatory procedural bar" rule simply cannot
be squared with Congress' selection of "application" as the subject of 2244(d)(2)'s "properly filed" phrase.

The discord created by ignoring the settled meaning of "application" extends to the word "filed." If the state's
rule is correct, "filed" actually means "presented." But as described supra at

**, the verb "file" describes the act of delivering a document to a designated authority to be placed in the court records.
When referring to the procedural default status of a habeas petitioner's claim,


21


however, this Court has consistently spoken in terms of the claim's presentation. See. e.g.. 0 Sullivan i'. Boerckel. 526
U.S. 838. 848 (1999) (when prisoner has not "properlvp~'esen,ed his claims to the state courts.. . [he] has procedurally
defaulted his claims"): G,-av v e~'herland, 5 1 8 U.S. 152, 159(1996) (describing allegation that petitioner's "Brady
subclaim had not been presented to the state courts on direct appeal or in state habeas corpus proceedings, and was
thus procedurally barred"); Coleman v. Thompson, 501 U.S. 722, 732 (1991) (procedural default occurs when "a
habeas petitioner...has failed to meet the State's procedural requirements for presenting his federal claims"); Dugger v.
Adams, 489 U.S. 401, 4l~ (1989) (observing that state court "did not invoke procedural default as a basis for decision,
notwithstanding the prisoner's failure to present his... claim on direct appeal") (all emphases added). Here again,
Congress' grasp of the ordinary usage of the terms "filed" and "presented" is demonstrated in the AEDPA, which
contains repeated references to the filing of applications, and the presentation of claims. See, e.g., 2244(b)(3 )(A)
("Before a second or successive application permitted by this section is filed"); 2263(a) ("Any application under
this chapter for habeas corpus relief under section 2254 must befiled..

2244(b)( 1) ("A claim presented in a second or successive habeas corpus application"); 2244(b)(4) ("any claim
presented in a second or successive application"); 2244(d)( I )(D) ("the factual predicate of the claim or claims
presented"). Thus,just as with "application," Congress' selection of "filed," rather than "presented," for use in
2244(d)(2) conclusively demonstrates that it was not speaking

of procedural default.'6
/

6That "properly filed application" does not mean "application raising claims that are not procedurally barred"
is confirmed by the only federal court of appeals to have squarely addressed the question. In Villegas v. Johnson, 184
F.3d 467 (5th Cir. 1999), the Fifth Circuit observed that "Congress enacted AEDPA against a backdrop of federal
habeas law dealing with procedurally barred claims. [citations omitted] . ... That Congress nonetheless chose not to
address successive state petitions or procedurally barred claims in 2244(d)(2) convinces us all the more that we ought
22


The state's contortions of the statutory language continue with its treatment of the adverb "properly" as an all-
purpose statutory wild card. into '~hich it reads a range of potential procedural stumbling blocks to merits review of a
prisoner's claims. It is unclear from the brief whether the state seeks to exclude all applications that a state court could
not "hear on the merits under state procedural rules," Pet. Br. 22, or "only" those applications containing claims "that
are mandatorilv procedurally barred under state law," Pet. Br. 28. Either view, however, gives content to the word
"properly" that cannot be justified. See Consumer Product Safety Commission. supra ("[a]bsent a clearly expressed
legislative intention to the contrary, that language [of a statute] must ordinarily be regarded as conclusive") (emphasis
added).

The state attempts to avoid the plain meaning of the adverb "ptoperly" in two ways: first, by divorcing it from
the verb it modifies in 2244(d)(2), and second, by reference to a treatise and a law review article suggesting that the
phrase "properly filed" is ambiguous. See Pet. Br. 29. Using the first method, the state concentrates on a dictionary
definition of "the word 'proper"' as "ordinarily denot[ing] 'strictly accurate' or 'correct,"' and contends that a "post-
conviction application that fails to comply with mandatory state procedural rules cannot" satisfy this definition. Pet.
Br. 29. But this overlooks the key fact that Congress did not use the adjective "proper" to qualify the noun
"application;" rather, it used the adverb "properly" to modify the verb "filed." See Webster's Deluxe Unabridged
Dictionary 28 (2d ed. 1979) (defining "adverb" as "a word used to modify a verb, adjective, or other adverb by
expressing time, place, manner, degree, cause, etc."). As discussed supraat ~ giving the words "properly" and "filed"
their ordinary, common meaning, and reading them in the context of 2244(d)(2)'s language, the question they combine
to propound is simply



not assume an overly broad meaning of 'properly filed."' Ville gas, 184 F.3d at 470.
23


whether or not the prisoner has accomplished the delivery of his application to the custodian designated to receive it in
accordance with the rules governing its acceptance for filing.'7

The state's alternative means of avoiding the plain meaning of the statutory language is to urge that "there is. at
the very least, sufficient ambiguity in the term 'properly' to justify an inquiry into Congress's objectives in enacting the
statutory provisions." Pet. Br. 29 (citing Liebman & Hertz, 5.lb n.64, at 236; Tushnet & Yakle [sic] at 30). But
merely asserting that a word is ambiguous does not make it so, and the state's complete failure even to attempt an
analysis of the language of 2244(d)(2) using the methods this Court has established renders its assertion hollow. More
importantly, as we have demonstrated, straightforward application of this Court's rules of statutory construction
reveals no genuine ambiguity in what Congress meant by the phrase "properly filed." Resorting to the generalized
arguments on legislative intent that occupy the majority of the state's brief is therefore unnecessary. See John Hancock
Mut. L{fe Ins. Co. v. Harris Trust & Say. Bank, 510 U.S. 86, 116 (1993) (Thomas, J., joined by O'Connor and
Kennedy, JJ., dissenting) ("there is no need to resort to such general understandings of the policy behind a statute
when the language suggests a contrary meaning"); cfPipefitters Local Union No. 562 v. Unites States, 407 U.S. 385, 446
(1972) ("If the language of a statute is clear and unambiguous there is no occasion to resort to legislative history. Nor
can such history, however illuminating it may seem, be relied upon to contradict, or dilute, or add unspecified
conditions to statutory language which is perfectly clear");




~The state's other shallow foray into the meaning of "properly" is equally misguided, this time acknowledging
that Congress used "properly," not "proper," in 2244(d)(2), but replacing "filed" with "presented." See Pet. Br. at 29
citing 0 'Sullivan v. Boerckel, 526 U.S. at 848; Harris
v. Reed, 489 U.S. 255, 265 (1989) ("this Court has often used the term 'properly' in discussing the exhaustion and
procedural default doctrines to refer to claims presented to state courts in accordance with state procedural rules").
24


United States v. Oregon. 366 U.S. 643, 648 (1961) ("Having concluded that the provisions of [the statute] are clear and
unequivocal on their face. we find no need to resort to the legislative histor' of the Act").

Reading "properly," as the state does, to mean "presenting claims eligible for merits review under state law"
also ignores the fact that when Congress wanted to limit federal habeas review to claims that received merits review in
the state courts, it did so expressly. In 2254(d), for example. Congress spoke specifically about "any claim that was
adjudicated on the merits in State court proceedings..... Congress spoke with equal clarity in 2264(a), establishing
that, in a qualifying capital case, "the district court shall only consider a claim or claims that have been raised and
decided on the merits in the State courts..." Given Congress' demonstrated ability to draft statutory language focusing
on claims that received merits review in state court proceedings, its failure to use such language in 2244(d)(2) cannot
be ignored in favor what the state contends Congress must have meant. See, e.g., Gozlon-Peretz v. United States, 498
U.S. 395, 404, 111 S.Ct. 840, 846-47 (1991), quoting Russello v. United States, 464 U.S. 16, 23, 104 S.Ct. 296, 300
(1983) ("'[W]here Congress includes particular language in one section of a statute but omits it in another section of the
same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or
exclusion"') (internal quotation marks omitted); Musick, Peeler & Garrett v. Employers Ins., 508 U.S. 286, 305-306
(1993) (Thomas, J., dissenting, joined by Blackmun and O'Connor, JJ.) ("Courts should not treat legislative and
administrative silence as a tacit license to accomplish what Congress and the SEC are unable or unwilling to do").

E. DEFINING "PROPERLY FILED APPLICATION" AS "APPLICATION RAISING
CLAIMS THAT ARE NOT 'MANDATORILY PROCEDURALLY BARRED"'
AFFORDS PRISONERS NO MEANINGFUL GUIDANCE AS TO THE TYPES OF
CLAIMS THAT WILL RESULT IN TOLLING UNDER 2244(d)(2).
25


Even if the statutory language could support the state's "mandatory procedural bar" standard. that standard
would still be totally unworkable. The state's brief never explains what "mandator' procedural bar" means, undoubtedly
because trying to do so would demonstrate the inherent problems with the suggested rule. First, there are, in fact,
virtually no mandatory procedural bars. Virtually all state procedural default rules contain exceptions of some sort
e.g., fundamental or plain error, cause and prejudice, miscarriage ofjustice, state interference, ineffective assistance of
counsel, retroactive new law, newly discovered evidence and are therefore not "mandatory." And the few barriers to
state post-conviction review that are genuinely "mandatory," such as a lack of jurisdiction to entertain a prisoner's
claims, or a court order barring a vexatious litigant from filing new challenges, are not true "procedural bars." Thus, if
read literally, the rule would apply to almost no one.

An examination of the state's brief reveals that, despite the talismanic invocation of "mandatory procedural
bar," the state is in fact suggesting that an application is not "properly filed" if it contains procedurally defaulted
claims. But even using this standard, the reality is that the overwhelming majority of prisoners would fit within the
state's own exceptions. According to the state's brief, "[i]f a petitioner colorably invokes an exception to the state's
procedural bar, or if the state courts regularly overlook the procedural bar in order to review claims such as the
petitioner's, the ambiguity should be resolved in favor of the petitioner." Pet. Br. 32; see also Pet. Br. 34 ("Any
legitimate or even arguably legitimate attempt to exhaust state remedies will result in tolling"). It is the rare case in
which a prisoner does not "colorably invoke" an exception to a state's procedural bar defenses.

While the porousness of the state's rule would be attractive to many habeas petitioners, chaos


26


would be the inevitable result. Prisoners uncertain whether their claims may be deemed procedurally barred. or whether
a state court would find their ar2uments in support of merits review "colorable." would bypass state collateral review
out of a lecitimate fear that the time spent in state court would not toll the limitations period if their claims are deemed
procedurally barred. The state's brief suggests that the solution to this problem is simply to rely on federal district
courts to dismiss petitions which are arguably unexhausted, which would in turn "assure[] [the petitioner] the he or she
will obtain the benefit of tolling because there will already be a determination on the facts of petitioner's case that the
state proceeding is necessary for exhaustion Pet. Br. 35. But that is no answer. Such a scheme would invert the
exhaustion requirement by putting federal courts in the position of having to decide in the first instance whether a state
court would consider a claim on the merits without the benefit of any type of state court order addressing the issue.
Furthermore, it would go directly against the obvious purpose of 2254(b), and would flout this Court's "simple and
clear instruction to potential litigants: before you bring any claims to federal court, be sure that you first have taken
each one to state court." Rose v. Lundy, 455 U.S. 509, 520 (1982); see also id. at 518-519 ("A rigorously enforced total
exhaustion rule will encourage state prisoners to seek full relieffirst from the state courts, thus giving those courts
thefirst opportunity to review all claims ...") (emphasis added). It is also impossible to conceive of how such a
backtracking system could possibly serve the state's interest in eliminating "repetitious litigation that.., causes years of
delay." Pet. Br. 37.

In addition to leaving prisoners to anxiously "wait and see" whether the state courts will reach the merits of
their claims, or at least find their arguments for doing so "colorable," the state's formulation raises, but does not answer,
a host of other troubling questions. For example:


27


_ What differentiates a "mandatory procedural bar" from a non-mandatory procedural bar?

_ Vv'hat constitutes an "arguably lecitimate attempt to exhaust state remedies"?

_ What constitutes a colorable invocation of an exception to a state procedural bar?

_ What proportion of the claims presented in a state court application must be colorably eligible for merits
review in order to qualify as "properly filed"? Is a single non-barred claim enough?

_ Should a state application raising procedurally barred claims nevertheless be deemed "properly filed" if, after
the state raises procedural bar as an affirmative defense, the applicant comes forward with a colorable argument
that one or more of his claims fits within an exception to the bar? If so, does tolling under 2244(d)(2) begin at
the time the applicant's response is filed, or should it relate back to the filing of the initial application?

_ To accommodate the fact that procedural default is assessed claim-by-claim, should "properly filed," and
therefore tolling under 2244(d)(2), also be measured claim-by-claim, notwithstanding the statute's express
reference to the filing status of the "application"?

_ If tolling under 2244(d)(2) is to be measured claim-by-claim, will a prisoner be required to file a federal habeas
petition raising direct appeal claims if his state collateral proceedings extend beyond one year of the date on
which his direct appeal becomes final?

_ If tolling under 2244(d)(2) is to be measured claim-by-claim, must the limitations period be calculated
separately for claims included in a state application by way of amendment subsequent to the filing of the initial
application?

_ Do federal district courts have the authority, for purposes of determining the timeliness of a habeas corpus
petition, to take a fresh look at a state court's finding that a claim was procedurally barred from state collateral
review, or must they take the state court's determination at face value?

_ If a petitioner whose claim was found to be procedurally defaulted by a state court is nevertheless able to
establish cause and prejudice or a miscarriage of justice in federal court, would the petitioner still be deprived of
tolling under
2244(d)(2)?


28


In short, the state's proposed rule would create an entire!' new and complex field of habeas corpus doctrine. ~vhich
would undoubtedly require this Court to revisit 2244(d)(2) repeatedly in the future. In the meantime. the federal
courts would remain paradoxically mired in confusing. inefficient and unnecessary case-by-case litigation over the
operation ofa single statutory provision whose purpose was to accelerate, not complicate, collateral challenges to state
court convictions. Cf ~f'ilson 'i'. Garcia, 471 U.S. 261, 272 (1985) ("The experience of the courts that have predicated
their choice of the correct statute of limitations on an analysis of the particular facts of each claim demonstrates that
their approach inevitably breeds uncertainty and time-consuming litigation that is foreign to the central purposes of
1983"). This is clearly not what Congress intended. See Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 575 (1982)
("interpretations of a statute which would produce absurd results are to be avoided if alternative interpretations
consistent with the legislative purpose are available")

F. THE CLAIMS IN BENNETr'S 1995 APPLICATION WERE NOT "MANDATORILY
PROCEDURALLY BARRED" UNDER NEW YORK LAW, AND BENNETT IS
THEREFORE ENTITLED TO TOLLING EVEN UNDER THE STATE'S
CONSTRUCTION OF 2244(d)(2).


Bennett's 1995 state court application presented three claims for relief: that his rights were violated when the
trial court prevented him from calling a witness in his defense; that the prosecutor committed misconduct; and that his
right to be present at all material stages of trial was violated. '~ The only evidence of how the state post-conviction court
resolved these claims is its four-word oral ruling: "The motion is denied." JA 143. It is impossible to ascertain from
that ruling which of the



'In his 1995 application, Bennett clearly indicated that he filed the application in order to exhaust state
remedies as required by 2254(b). See JA 114. The state's brief does not explain why its concession that "[a]ny
legitimate or even arguably legitimate attempt to exhaust state remedies will result in tolling," Pet. Br. 34, should not
apply to Bennett.
29


state's procedural and substantive defenses, if any, the state court relied upon to deny relief. Clearly. this would not
qualify as a procedural default holding under any of this Court's decisions. Sec Coleman v. Thompson. 501 U.S. 722
(1991) ("[state] court's explicit grant of a dismissal motion based solely on procedural grounds" justified reading
summary state court order as establishine procedural default); Harris v. Reed, 489 U.S. 255, 263 (1989) ("a procedural
default does not bar consideration of a federal claim on either direct or habeas review unless the last state court
rendering ajudgment in the case clearly and expressly states that .itsjudgment rests on a state procedural bar").

None of the procedural grounds on which the state defended against Bennett's claims is "mandatory," in the
sense of requiring automatic dismissal without substantive consideration. In opposition to Bennett's first two claims --
preclusion of defense testimony and prosecutorial misconduct -- the state relied in part on CPL 440.10(2)(a), which
requires denial of relief when a claim has been previously raised and decided on direct appeal "unless since the time of
such appellate determination there has been a retroactively effective change in the law controlling such issue[.]"
(emphasis added). Because the statute contains an express exception, the requirement that relief be denied cannot and
does not become effective, or in the state's words, "mandatory," until the reviewing court has first determined that
resolution of the claim is not governed by a retroactive change in governing law.'9 In addition to 440.l0(2)(a), the state
also defended against Bennett's




"In its brief, the state faults Bennett for never having "established that there had been any retroactively
effective change in the law." Pet. Br. 44; see also id. at n.l0 (contending Bennett's less than artful pleading placed his
first two claims outside the statutory exception). The state may be correct; but the important point for purposes of
applying the state's own interpretation of 2244(d)(2) is that whether or not Bennett sufficiently invoked
440.l0(2)(a)'s exception was a decision that the state court had to make after consideration of the facts and arguments
presented to
it. Until then, there was nothing "mandatory" about the applicability of 440.10(2)(a)'s denial requirement.
30


prosecutorial misconduct claim on the merits, arguing that Bennett "failed to establish" prejudice and citine the state
appellate court's earlier findin2 that the trial court's erroneous preclusion of defense testimony was harmless.20 JA 128.
Here again, the state's adversarial contentions that Bennett had not alleged facts sufficient to warrant relief on the
merits, and that the appellate court's finding of harmlessness on a different but related issue precluded relief are not
properly characterized as "procedural bars," "mandatory" or otherwise.2'

The state's defenses to Bennett's third claim that his right to be present at all material stages of the
proceedings was violated exacerbate the ambiguity in the state court's oral denial.2




20Specifically, the state argued: "Furthermore, defendant's second claim cannot possibly succeed in view of the
Appellate Division's ruling on that issue because, even if the prosecutor did act in bad faith in asking for preclusion a
fact that defendant has failed to establish that fact would only justify vacatur of defendant's conviction if it actually
prejudiced defendant. Since the Appellate Division already concluded that the preclusion was harmless beyond a
reasonable doubt, any claim in this motion that is based upon the preclusion of Mahamed's testimony must be
summarily denied." JA 128.

2The state's brief in this Court raises a new defense to Bennett's prosecutorial misconduct claim, arguing that
because the "claim was based on the trial record and could have been made on [direct] appeal," and because "Bennett
never sought to invoke the 'unjustifiable failure' language of [440.1 0(2)(c)]. ..this issue too was mandatorily
procedurally barred..." Pet. Br. 44. Apart from the fact that this defense appears nowhere in the state's response to
Bennett's prosecutorial misconduct claim submitted in state court, the state's reliance on it now actually undercuts its
own argument: just like subdivision (a) of 440.10(2), subdivision (c) contains an exception justifiable failure to raise
a claim on direct appeal that prevents automatic denial of a claim.

2The state's brief asserts that Bennett's third claim was based only on state law, presumably to suggest that
this fact, were it correct, would somehow render that claim irrelevant to the tolling analysis under 2244(d)(2). While
the New York Court Appeals' decision in People v. Favor, 82 N.Y.2d 254 (N.Y. 1993), does indicate that its decision
in that case and in People v. Dokes, 79 N.Y.2d 656 (N.Y. 1992), focused on state law, nothing in those decisions
foreclosed the argument that a defendant's absence from a Sandoval hearing would violate the federal Constitution, as
well as New York law. Furthermore, even assuming Bennett's third claim is properly characterized as being confined to
state law, nothing in 2244(d)(2) suggests that, in order to qualify as "properly filed," an application must contain
exclusively federal constitutional claims.
31


The state defended against this claim on five grounds; some of which were procedural. others were substantive. First,
the state invoked CPL 440.30(4)(c). and urged that the court "should" deny the claim because Bennett's allegation was
"conclusively refuted by documentary proof." JA 129. But CPL 440.30(4)(c) provides that, "Upon considering the
merits of the motion. the court ma deny it without conducting a hearing if: ... (c) An allegation of fact essential to
support the motion is conclusively refuted by unquestionable documentary prooffl" (emphasis added). The plain
language of the statute thus makes clear both that the post-conviction court is required to "examin[e]

the merits of the claim," and that, after doing so, it "may deny" relief.23 This is not a procedural bar at all.

The state also relied on CPL 440. lO(2)(c), which prohibits collateral relief on a ground that could have been
raised on direct appeal if"no such appellate review or determination occurred owing to the defendant's. . .unjustifiable
failure to raise such ground or issue upon an appeal actually perfected by him." As with the state's other statutory
defenses, this provision is not automatic or "mandatory," but instead requires a finding by the state court first that the
direct appeal contained facts sufficient to permit adjudication of the claim, and second that the prisoner's failure to
raise the claim on direct appeal was "unjustifiable." And while the state court may have resolved both of these issues
against Bennett, whether it actually did so simply cannot be determined from its four-word oral ruling.



"The significance of the distinction between "may" and "must" in the New York provisions governing a post-
conviction court's authority to deny relief is not lost on the state. In its brief, the state emphasizes that "the language
of the two procedural bars at issue is mandatory: the statutory bar requires that 'the court must deny a motion to
vacate a judgment when' the conditions are met." Pet. Br. 48-49 (citation omitted) (emphasis by state). Perhaps it is for
this reason that the state focuses only on the provisions that include "must," without acknowledging its reliance in
state court on the provisions that say 'may."
32


The state's third and fourth defenses were also based on statutory provisions that allow, but do not require.
the state court to deny relief. Invokina subdivisions (a) and (c) ofCPL p440.10(3W4 the state contended respectively
that "even if the record was not sufficient to permit review on direct appeal, [Bennett] could have caused such facts to
appear on the record," and that "e'en if this is a purely off-the-record claim, it is still procedurally barred because
[Bennett] could have raised this issue in his original 440 motion, but unjustifiably failed to do so." Apart from the fact
that the introductory sentence ofCPL 440.10(3) indicates that the court "may deny" claims meeting certain
conditions, a review of the specific subdivisions relied upon by the state reveals once again that the court's discretion
to deny Bennett's claims could be triggered only if it first made specific findings relating to Bennett's conduct in earlier
proceedings. Subdivision (a) allows the court to deny relief only after finding that a defendant exercising "due diligence"
could have "readily" caused the relevant facts to appear on the record, and that the defendant's failure to ensure
inclusion of the facts was "unjustifiabl[eJ." And subdivision (c) permits the court to deny relief on a second or
successive application only after finding that the applicant "was in a position adequately to raise the ground or issue"
in a previous application. Again, the state court may (or may not) have resolved these



4CPL 440.10(3) provides in relevant part:
Notwithstanding the provisions of subdivision one, the court may deny a motion to
vacate a judgment when:
(a) Although facts in support of the ground or issue raised upon the motion could with due diligence by the
defendant have readily been made to appear on the record in a manner providing adequate basis for
review of such ground or issue upon an appeal from the judgment, the defendant unjustifiably failed to
adduce such matter prior to sentence and the ground or issue in question was not subsequently
determined upon appeal....; or

(c) Upon a previous motion made pursuant to this section, the defendant was in a position adequately to
raise the ground or issue underlying the present motion but did not do so.
33


inquiries against Bennett. But if it did, the court did not say so, thus making it impossible to characterize Bennett's
application as "mandatorily procedurally barred."

Finally, the state defended acainst Bennett's third claim on the merits. See JA 130 (Affirmation in Opposition
to Defendant's Motion to Vacate Judgment: "[Bennett's] claim that his right to be present at his Sandoval hearing was
violated.., is meritless"). It goes without saying that if the state court relied on this argument to support its denial of
relief, it did not find Bennett's third claim "mandatorily procedurally barred."

In sum, every defense raised by th& state to the claims presented in Bennett's 1995 application required some
level of substantive review before the state court would have been permitted to deny relief under state law. While the
state, like other litigants, may have believed its arguments to be persuasive and strong, that belief is simply not enough
to make the state's arguments dispositive of the case. Because the state court was required by unambiguous state law
to make specific findings with respect to the substance of each of the state's defenses, it cannot legitimately be said
that the claims in Bennett's 1995 application were "mandatorily procedurally barred."


















34


CONCLUSION

The decision of the court of appeals should be affirmed.

Respectfully Submitted,


ALAN S. FUTERFAS*
ELLEN B. RESNICK
Law Offices of Alan S. Futerfas
260 Madison Avenue
New York, NY 10016
(212) 684-8400
*Counsel of record


JOHN H. BLUME
Cornell Law School
110 Myron Taylor Hall
Ithaca, NY 14853
(607) 255-1030

KEIR M. WEYBLE
P.O. Box 11744
Columbia, SC 29211
(803) 765-1044
COUNSEL FOR
RESPONDENT
35

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