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Writ of Habeas Corpus by Colorado Defense Lawyer

WALL v. KHOLI, 562 U. S. ____ (2011), No. 09–868 (March 7, 2011) (argued November 29, 2010)

Tolling of time period for Writ of Habeas Corpus
Post-conviction remedies
Antiterrorism and Effective Death Penalty Act

Rhode Island convicted Mr. Kholi of ten counts of sexual assault, and the trial court sentenced him to consecutive life terms. Mr. Kholi filed a direct appeal, and his conviction became final in 1996. Mr. Kholi also filed two post-conviction motions – a 35(b) reconsideration motion seeking concurrent rather than consecutive life sentences, and a 35(c) post-conviction motion. Mr. Kholi filed the 35(b) in 1996 within a year of his conviction becoming final. Moreover, Mr. Kholi filed a 35(c) while the reconsideration post-conviction motion was pending in the trial court. The trial court eventually denied both post-conviction motions, and the Rhode Island Supreme Court affirmed those denials – the last on December 14, 2006. Mr. Kholi then filed a petition for writ of habeas corpus in Federal district court on September 5, 2007, within a year of the last decision from the Rhode Island Supreme Court. Rhode Island complained that Mr. Kholi did not file his writ of habeas corpus within a year of the conviction, which is required by AEDPA.

Issue: If the time in which the 35(b) motion does not toll the time period to file the great writ, then Mr. Kholi is SOL. If a 35(b) type motion does toll the 1-year period, Mr. Kholi filed his writ of habeas corpus in a timely fashion.

Held: The filing of a motion for reconsideration does toll the time period in which a petition for writ of habeas corpus must be filed.

The U.S. Supreme Court took cert on the issue because the Federal Circuit Courts are split. Justice Alito wrote the opinion with nary a dissenter. First, to toll the time period under the AEDPA, the motion must be a request for “collateral review”.  The Court reasoned, “Viewed as a whole, then, ‘collateral review’ of a judgment or claim means a judicial reexamination of a judgment or claim in a proceeding outside of the direct review process.” The Court then looked at the purposes of a 35(b) motion (Rhode Island’s Rule 35 and Colorado’s Rule 35 mirror each other). The Court found indeed a motion to reconsider does fall outside the direct review process, seeks review of the sentence by the trial court, and falls squarely within the definition of collateral review.

***Commentary contributed by Eric Sims Jr., Esq. (used with permission)***


ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY,  THOMAS,  GINSBURG,  BREYER,  SOTOMAYOR,  and KAGAN,  JJ., joined, and in which  SCALIA,  J., joined, except as to footnote  3.  SCALIA, J., filed an opinion concurring in part.

Respondent was convicted in Rhode Island Superior Court on 10 counts of first-degree sexual assault and sentenced to consecutive life terms. His conviction became final on direct review on May 29, 1996.  In addition to his direct appeal, he filed two relevant state motions.  One, a May 16, 1996, motion to reduce his sentence under Rhode Island Superior Court Rule of Criminal Procedure 35, was denied.  The State Supreme Court affirmed on January 16,  1998.   The second, a state postconviction relief motion, was also denied.  That decision was affirmed on December 14, 2006.  When respondent filed his federal habeas petition, his conviction had been final for over 11 years.   The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) generally requires a federal petition to be filed within one year of the date on which a judgment  became  final, 28 U. S. C. §2244(d)(1)(A), but “a properly filed application for State post-conviction or other collateral review” tolls that period, §2244(d)(2).  Respondent’s postconviction relief motion tolled the period for over nine years, but his Rule 35 motion must also trigger the tolling provision for his habeas petition to be timely.   The District Court dismissed the petition as untimely, adopting the Magistrate Judge’s conclusion that the Rule  35 motion was not “a properly filed application for . . . collateral review” under §2244(d)(2).  The First Circuit reversed.

1. The phrase “collateral review” in §2244(d)(2) means judicial review of a judgment in a proceeding that is not part of direct review. Pp. 4–8.
(a) The parties agree that the answer to the question whether a motion to reduce sentence is an “application for State post-conviction or other  collateral review”  turns on the  meaning of “collateral review,” but they disagree about what that meaning should be.   Pp. 4–5.
(b) Because “collateral review” is not defined in AEDPA, the Court begins with the ordinary understanding of that phrase.   By definition, “collateral” describes something that is “indirect,” not direct.  3 Oxford English Dictionary 473.   This suggests that “collateral” review is not part of direct review.  This conclusion is supported by the definition of the related phrase “collateral attack” and by the Court’s prior use of the term “collateral” to describe proceedings that are separate from the direct review process.  Pp. 5–7.
(c) The term “review” is best understood as a  “judicial  reexamination.”   Webster’s Third New International Dictionary 1944.   Pp. 7–8.
2. A Rule 35 motion to reduce sentence under Rhode Island law is an application for “collateral review” that triggers AEDPA’s tolling provision. Pp. 8–15.
(a) Rhode Island’s Rule 35  is similar to the version of  Federal Rule of Criminal Procedure 35 in effect before the federal Sentencing Reform Act of 1984.   The Rule permits a court to provide relief, as relevant here, to “reduce any sentence,” and it is generally addressed to the sound discretion of the sentencing justice.  Under the limited review available, an appellate court may disturb the trial justice’s decision if  the sentence imposed is without justification and is grossly disparate when compared to sentences for similar offenses.  Pp. 8–9.
(b) Keeping these principles  in mind, a Rule 35  sentence reduction proceeding is “collateral.”  The parties agree that the motion is not part of the direct review process, and both this Court and lower federal courts have described a motion  to reduce sentence under old Federal Rule  35 as invoking a “collateral” remedy.   Therefore, it is not difficult to conclude that Rhode Island’s motion to reduce sentence is “collateral.”  A Rule 35 motion also calls for “review” of the sentence within §2244(d)(2)’s meaning.  The decision to reduce a sentence involves judicial reexamination of the sentence to determine whether a more lenient sentence is proper.  The trial justice is guided by several sentencing factors in making that decision.  And those factors are also used by the State Supreme Court in evaluating the trial justice’s justifications for the sentence.  Pp. 9–11.
(c) Rhode Island’s arguments in support of its opposing view that “collateral review”  includes only “legal” challenges to a conviction or sentence, and thus excludes motions for a discretionary sentence reduction, are  unpersuasive.   Nor does “collateral review” turn on whether a motion is part of the same criminal case.  Pp. 11–15.
582 F. 3d 147, AFFIRMED.

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