ON APPEAL: Motion for sentence modification tolls AEDPA

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The timeline for filing a petition for writ of habeas corpus in federal court challenging a state conviction is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Recently, the United States Supreme Court addressed whether a state inmate’s challenge to his sentence tolls the deadline.

The question in Wall v. Kholi, No. 09-868 (Mar.7,2011), was whether a Rhode Island defendant’s Rule 35 motion to reduce a sentence has the same effect of tolling the federal habeas deadline as, for example, a WIS. STAT. §974.06 motion for post-conviction relief.

The Rule 35 motion permits a court to correct an illegal sentence; correct a sentence imposed in an illegal manner, or reduce any sentence. Unlike Wisconsin, Rhode Island does not permit challenges to the sentence to be done in a direct appeal. Wisconsin defendants, however, must raise claims involving the first two — an illegal sentence, or correcting a sentence imposed in an illegal manner — in a direct appeal. The third, a request to reduce the sentence, is perhaps best compared to a motion to modify a sentence based on a new factor. For our purposes then, the question is whether a motion to modify a sentence based on a new factor, filed within one year of the date a conviction becomes final, tolls the time for filing a federal habeas petition.

AEDPA generally requires a federal habeas petition to be filed within one year of the date on which the judgment becomes final by completion of the direct appeal. Consider the traditional state appeal: Defendant (Mr. Smith) is convicted, files a post-conviction motion under WIS. STAT. (RULE) 809.30, loses, appeals, loses, and files a petition for review, which is denied. The date for finality would be one year after the deadline for filing a petition for writ of certiorari in the U.S. Supreme Court has passed: generally, one year and 90 days.

There are certain circumstances that stop the AEDPA clock. A state inmate seeking federal habeas relief must exhaust his state remedies before gaining entry into federal court. If his issues were not fully litigated in his direct appeal, he must seek to litigate them another way. The one-year deadline from the date of finality is stopped during the pendency of “a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim.” 28 U.S.C. §2244(d)(2).

If Mr. Smith discovers constitutional claims that were not addressed on his direct appeal, for whatever reason, he must exhaust those claims in state court before he can raise them in federal court. In our scenario, this means Mr. Smith must file a WIS. STAT. §974.06 motion. On the day that Mr. Smith files his §974.06 motion, his federal habeas deadline is tolled until the date the case is complete. If Mr. Smith has as much luck litigating his §974.06 motion as he did his direct appeal, this means the clock will be stopped during litigation of the motion in the circuit court, through the appeal in the Court of Appeals and until the Wisconsin Supreme Court decides his petition for review.

The outcome of Kholi boiled down to whether the term “collateral review” included only legal challenges to a conviction or sentence, excluding discretionary sentence reductions. Slip Opinion at 5. Collateral review, the Court held, means “a judicial re-examination of a judgment or claim in a proceeding outside of the direct review process.” Id. at 7. There was no question, the Court said, that the motion for a sentence reduction at issue was “collateral.” Id. at 9. Such a motion “undoubtedly calls for ‘review’ of the sentence. Id. at 10. Thus, it was a “collateral review,” triggering AEDPA’s tolling provision.

Because Wisconsin inmates can challenge their sentences in a direct appeal, Kholi likely has little practical impact. But the decision does seem to extend tolling under AEDPA to a sentence modification motion based on a new factor, assuming the motion is filed within the one-year time period.