Last Best Chance for the Great Writ: Equitable Tolling and Federal Habeas Corpus

Abstract

This article examines an important unsettled question in federal habeas law: whether equitable tolling is available under the statute of limitations applicable to federal habeas petitions filed by state prisoners. The answer to this question will determine access to the federal judicial review of thousands of prisoners' claims that their convictions resulted from violations of their federal constitutional rights in state courts. In twelve cases reviewing the statute of limitations under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the Supreme Court has curtailed the availability of statutory tolling of the limitations period. Equitable tolling of the statute of limitations represents the last best chance for habeas petitioners who find themselves shut out of federal court by the Supreme Court’s restrictive interpretation of AEDPA. Without it, their constitutional claims will never be heard. The Supreme Court has twice signaled in recent cases that the availability of equitable tolling under AEDPA remains unsettled, suggesting that it could reject equitable tolling under AEDPA. This article examines AEDPA's equitable tolling issue in light of the Court's meandering equitable tolling jurisprudence and its historical role in habeas corpus. Though lower courts have held that equitable tolling is available under AEDPA, they have failed to convincingly articulate why equitable tolling is justified in the context of federal habeas corpus. This article fills the void by examining the Court's seminal equitable tolling cases, from Irwin v. Department of Veterans Affairs, to its most recent decision in John R. Sand & Gravel v. United States. This article identifies from the case law three contextual factors which influence the Court's role in applying the limitations statute at issue. Applying these factors to AEDPA, this article argues that equitable tolling is justified for institutional, constitutional and statutory reasons, including the Court's unique role in ensuring access to the Great Writ and remedying constitutional violations.

Keywords: habeas, federal courts, criminal law and procedure

JEL Classification: K10, K14