A motion to reduce a sentence under state law is an application for “collateral review” that triggers AEDPA’s tolling provision.
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.
582 F. 3d 147, affirmed.
Local Effect: The opinion is consistent with governing Seventh Circuit precedent. Carter v. Litscher, 275 F.3d 663 (7th Cir. 2001).
09-868 Wall v. Kholi
Alito, J.; Scalia, J., concurring.