In a rare move, the United States Court of Appeal for the Eleventh Circuit has voted to rehear a case en banc. The case, Michael Duane Zack III v. Tucker, No. 09-12717, concerns the issue of timeliness of federal habeas claims. In the original opinion, released in January, 2012, the Court held that the District Court erred in applying the statute of limitations separately to each claim in the petition to find that only certain claims were timely filed. I suspect that most criminal defense and criminal appellate lawyers would agree that it seems logical that the timeliness of a federal habeas petition should be viewed as to the whole petition, not claim-by-claim. I certainly hope that the Court does not change its conclusion on rehearing. The order granting rehearing en banc can be viewed here. For those of you who practice in the Southern District of Florida, take note that our own Judge Jordan’s name appears on the order granting rehearing.
Pursuant to 28 U.S.C. sec. 2244(d), petitioners applying for a writ generally have 1 year in which to file their petition. This 1 year statute of limitations runs from the latest of (a) the date that the judgment became final by direct review or the expiration of the time for seeking direct review; (b) the date on which an impediment to filing an application created by State action is removed, if the applicant was prevented from filing by such State action; (c) the date on which the constitutional right being asserted was initially recognized by the Supreme Court, if the right is newly recognized and has been made retroactively applicable to cases on collateral review; or, (d) the date on which the facts supporting the claim presented could have been discovered through due diligence. See 28 U.S.C. sec. 2244(d)(1)(A)-(D). However, the time during which properly filed motions for State postconviction relief or other collateral review with regard to the judgment is excluded from the calculation of the 1 year statute of limitations. See 28 U.S.C. sec. 2244(d)(2).
Time calculations can be straightforward or complex, depending on such factors as whether the petitioner has directly appealed the judgment, whether the petitioner has filed motions for postconviction relief or other collateral review, whether the petitioner has “properly filed” motions for postconviction relief, whether newly recognized rights have been made retroactively applicable to cases on collateral review, and the “mailbox rule.” For a brief discussion of timeliness of a petition and tolling, counsel may wish to review the recently published order in Williams v. Secretary, Dept. of Corr., No. 6:09-cv-1809-Orl-31KRS, 2011 WL 2173858 (M.D. Fla. June 2, 2011). For a brief discussion of the “mailbox rule,” counsel may review the Eleventh Circuit opinion in Powles v. Thompson, 282 Fed. App’x 804 (11th Cir. 2008). Finally, when calculating the number of tolled or untolled days between filings, counsel may also wish to consult www.timeanddate.com.