Publications

Greetings, Court Fans!

The Court is back for arguments this week before going on another two-week recess that will carry through Thanksgiving weekend. The highlight of this week’s arguments is Hall Street Assocs. v. Mattel, Inc., which asks whether parties to an arbitration agreement can, by contract, expand the scope of judicial review of any arbitration award beyond the provisions of the Federal Arbitration Act (FAA) – which basically allows for review only where the arbitrator exceeds his or her authority or is biased or corrupt. The Ninth Circuit held that contracts for more expansive judicial review are unenforceable. We’ll hear what the Court has to say in a few months, but given that it’s a Ninth Circuit case the oddsmakers have closed betting on the outcome.

In other news, the Court summarily granted cert and reversed an Eleventh Circuit decision in Allen v. Siebert (05-1680), holding 7-2 that a prisoner’s untimely state-court challenge to his conviction does not toll, or temporarily suspend, the one-year limitations period for filing a federal habeas petition. The Anti-Terrorism and Effective Death Penalty Act (AEDPA) provides for the one-year limit on federal petitions but also provides that it is tolled when a prisoner “properly” files a state-court challenge to his conviction. Siebert, an Alabama inmate, challenged his conviction in an Alabama court; the state successfully opposed the challenge because Siebert filed it three months after the limitations period expired. He then filed a federal habeas petition, but by that time almost four years had passed from his conviction, so without tolling his federal petition was lost. And lost it was: the Court held that its holding in Pace v. DiGuglielmo (see our April 27, 2005 update if you’re interested), that a state-court challenge rejected as untimely is not “properly filed” under AEDPA, controlled the case and required it to hold against Siebert. The Ninth Circuit had tried to distinguish Pace on the ground that Pace involved a jurisdictional time limit, whereas in Siebert’s case the limitations period was only an affirmative defense for the state (which could waive the defense). Justice Stevens, who dissented along with Justice Ginsburg, harped on the same theme. But the unsigned majority opinion would have none of it, noting that timeliness is a “condition for filing” regardless of whether it is a jurisdictional requirement or an affirmative defense, and that leaving out affirmative defenses would blow a gaping hole in what the Court meant to be a general rule avoiding delving into state-to-state procedural specifics. So the rule going forward now clearly is that any untimely state-court postconviction challenge does not toll AEDPA’s statute of limitations for federal habeas petitions.

The Court’s order list today include one cert grant in Arave v. Maxwell (07-110), which concerns a death row inmate who did not accept a plea deal for a life sentence because his attorney guessed wrong about what the law would require the prosecutor to prove to get a death sentence from the jury. The questions presented are: (1) Because the Ninth Circuit did not require Hoffman to prove [that his counsel’s] recommendation constituted “gross error” and mandated [that counsel] “be prescient about the direction the law will take,” did the Ninth Circuit err by rejecting this Court’s prohibition regarding the use of hindsight to conclude Hoffman established deficient performance? (2) Because Hoffman failed to allege he would have accepted the state’s plea offer but for [his counsel’s] advice and the Ninth Circuit determined Hoffman’s decision to reject the offer was not a “principled stand,” did the Ninth Circuit err by concluding Hoffman established prejudice? (3) What, if any, remedy should be provided for ineffective assistance of counsel during plea negotiations if the defendant was later convicted and sentenced pursuant to a fair trial? The last question was not in Hoffman’s petition; instead, the Court’s order added it to the questions the parties must brief.

That’s all for now – thanks for reading!

Ken & Kim

 

From the Appellate Practice Group at Wiggin and Dana
For more information, contact Kim Rinehart, Ken Heath, Aaron Bayer, or Jeff Babbin at 203-498-4400