Ashbel T. Wall, II, Director, Rhode Island Department of Corrections v. Khalil Kholi

Oral argument transcript · No. 09-868 · October Term 2010 · argued November 29, 2010 · the respondent won

Decision: votes, opinion and citations · Official transcript (PDF) · Argument audio at the Supreme Court

Advocates

• Aaron L. Weisman, State Attorney General's office, for the petitioner
• Judith H. Mizner, Boston, Massachusetts, for the respondent

Transcript

From the Court's official transcript; speaker labels as in the transcript, with advocates' full names from its list of appearances.

Chief Justice Roberts: We'll hear argument first this morning in Case 09-868, Wall v. Kholi. Mr. Weisman. ORAL ARGUMENT OF AARON L. WEISMAN ON BEHALF OF THE PETITIONER

Aaron L. Weisman: Thank you. Mr. Chief Justice, and may it please the Court: The issue before the Court today is whether a State court sentence reduction motion which is a pure plea for leniency qualifies as, quote, "an application for post-conviction or other collateral review" within the meaning of 28 U.S.C. section 2244(d)(2). The State respectfully argued there are at least three reasons why such a term as "collateral review" refers only to a legal challenge, refers to those recognized post-direct appeal applications in which constitutional, jurisdictional, and other such fundamental errors may be raised. First, as this Court has said, it is presumed -- Congress is presumed to have known the language that this Court used in its decisions, and the term "collateral review" has been used by this Court, certainly when referring to Federal 2255 applications, Alderson Reporting Company 1 as those type of independent civil inquiries testing the validity of a conviction and/or sentence -­

Justice Ginsburg: But, Mr. Weisman, the phrase is "post-conviction or other" -- "or other collateral review." And certainly the Rule 25 -- 35 motion is postconviction. So it's postconviction. It's not direct review. Why isn't that responsive?

Aaron L. Weisman: Well, I think both parties are in agreement, Your Honor, that the postconviction review is a part and parcel of the other collateral review. That's not -­

Justice Ginsburg: "Or" usually means it's something in addition.

Aaron L. Weisman: Yes, but it's -- with respect, Your Honor, it is "or other collateral review," and the "or other" -- and I think both parties are in agreement as to this -- "or other" embraces that State postconviction review must also be, quote/unquote, "collateral review." Also, I think importantly, it would be anomalous in a tolling provision, in which we are talking about the direct appeal already having been concluded, to embrace things that don't -- that don't -­ that come prior to the direct appeal. This is a tolling Alderson Reporting Company 1 -- obviously, 2244(d)(1) speaks about the finality of a State court judgment of conviction. At that point, obviously -­

Justice Ginsburg: Can you go back to the -­ you said -- you said "prior to." I thought the Rule 35 motion is made after the conviction.

Aaron L. Weisman: Well, it can be made -- it can be made prior to when the conviction becomes final. For example, it can be made within 120 days of the imposition of sentence. Or it can be made within 120 days after the affirmance of the conviction on direct appeal of the Rhode Island Supreme Court. So it can be made prior to when the conviction becomes, quote/unquote, "final."

Justice Kagan: But isn't that true regardless of whether the Rule 35 motion seeks legal relief or discretionary relief alone? That both can be made prior to the finality of the judgment?

Aaron L. Weisman: That is true, Your Honor.

Justice Kagan: And -- and if I understand your argument, your argument is that Rule 35 motions that seek legal review do fall within the 2244(d)(2) language. It's just that Rule 35 motions that seek discretionary relief do not.

Aaron L. Weisman: Well, I'm not sure we conceded Alderson Reporting Company 1 that point, Your Honor. I think clearly we're all in agreement that postconviction vehicles and habeas vehicles, which obviously all traditionally occur after the direct appeal has been concluded, obviously qualify as what this Court -- and everybody, we would suggest -­ recognizes as, quote/unquote, "collateral review." In terms of a Rule 35 motion that says, for example, the sentence is outside of the -- outside of the proper boundaries, it's unlawful as a matter of law, I don't think we've actually conceded before this Court that that would qualify. But certainly this Court -­

Justice Sotomayor: Would Rule 35 permit a challenge for a Federal violation? You've given an example of an illegal sentence that you think is discretionary; am I correct?

Aaron L. Weisman: Not in -­

Justice Sotomayor: But does Rule 35(a) permit a legal challenge of the kind that Justice Kagan was asking?

Aaron L. Weisman: Correct. Our Rule 35 contains within the same provision a challenge to the legality of the sentence, to the manner in which it was imposed -­

Justice Sotomayor: All right. Let's assume a pure legal challenge.

Aaron L. Weisman: A pure legal challenge, Alderson Reporting Company 1 correct.

Justice Sotomayor: Would Rule 35(a) be other collateral relief -­

Aaron L. Weisman: We would -­

Justice Sotomayor: -- as designated by the statute?

Aaron L. Weisman: We would suggest that this Court doesn't have to answer that question here. There are good arguments why it would not, again, because in a tolling provision that speaks about collateral review and, again, 2255 -­

Justice Sotomayor: So explain again why you don't think this is collateral?

Aaron L. Weisman: Well, certainly when all you're doing, as the First Circuit recognized, is making a pure plea for leniency, sentence leniency, you're not -­

Justice Sotomayor: No, no, no. Why is Rule 35, assuming it's a -- a challenge to an illegal sentence on a legal ground -­

Aaron L. Weisman: Well, it could be argued -­

Justice Sotomayor: Why would it not be collateral review?

Aaron L. Weisman: Well, it could be argued that we're talking about vehicles that challenge the validity Alderson Reporting Company 1 of a judgment that has already survived scrutiny under direct review. And a Rule 35 vehicle, even one that raises a legal challenge -- and a tolling provision simply would not begin to run at that point.

Justice Scalia: I don't -- I don't understand your argument at all. It seems to me the phrase "post-conviction or other collateral review" means postconviction collateral review or preconviction collateral review. Isn't that what is added? "Post-conviction or other"; what's "other" from "post-conviction"? I guess it would be preconviction, wouldn't it?

Aaron L. Weisman: Well, we would suggest, Your Honor, that the "collateral review," as explained by this Court, is referring to the difference between collateral review and direct review. And the case in -­

Justice Scalia: That's fine. And is this direct review?

Aaron L. Weisman: This would not -- this is clearly not -- this is not in the direct review process. No, it's not.

Justice Scalia: So it's collateral review? So -­

Aaron L. Weisman: Well -­

Justice Scalia: So you lose. Alderson Reporting Company

Aaron L. Weisman: This -- this Court, though, Your Honor, has said that, speaking about when Congress enacted 2255, it simplified the procedure for making a collateral attack on a final judgment entered in a Federal criminal case, but it did not purport to modify the distinction, again, between collateral review and direct review.

Justice Scalia: I would think that if -- if there's anything to the point you're making, it -- it hinges not on the "post-conviction or other collateral" phrase, but rather on the word "review." I suppose it could be argued that you're not reviewing the judgment if you're asking for mercy. Whether a judgment was good or bad, you're -- you're asking for mercy. And I would -- you know, perhaps it's not review. Is that your point?

Aaron L. Weisman: Well, we go forward and use that -- even -- we would suggest, Your Honor, even more strongly that the phrase "collateral review," as that phrase has been used by this Court consistently, recognizes that this is a procedure that occurs after the completion of a direct review process.

Justice Scalia: Well, that's only because all the cases we've had involved that. We've never had a case like this before. So in all those other cases, Alderson Reporting Company 1 we've used the natural term "collateral review." That doesn't mean it couldn't apply to this. It just means we've never had occasion to inquire whether it applies to this.

Aaron L. Weisman: But, Your Honor, respectfully, in State v. Addonizio itself, it contrasted the Rule 35 motion, for example. Many jurisdictions, including obviously the Federal courts, had this very -- almost exact Rule 35-type proceeding. It has never been referred to, it has never been understood in thousands of cases, as collateral review. It always had been understood as a -- sort of a quasi-civil inquiry, after the -­

Justice Kagan: Mr. Weisman, I think that that's not right, that the -- as you say, that the Rule 35 motion that Rhode Island has is based on the Federal Rule 35 motion that existed prior to 1987, and that on a couple of occasions this Court talked about that prior Federal Rule 35 as collateral review. Am I wrong about that?

Aaron L. Weisman: We don't believe so, Your Honor.

Justice Kagan: U.S. v. Robinson, Bartone v. United States. And I might be wrong about it. Alderson Reporting Company

Aaron L. Weisman: We don't believe it ever referred to a sentence -- a plea for sentence leniency, Your Honor, no, not -- not as a plea, a pure plea for leniency under Rule 35.

Justice Ginsburg: And the current Federal rule -­

Aaron L. Weisman: Yes.

Justice Ginsburg: -- provides for -- it's Rule 35 also, but it doesn't have the pure leniency? That's Rhode Island's?

Aaron L. Weisman: That's correct -- correct, Your Honor. We're just speaking about the pre-1987 guidelines rule, which is the same.

Justice Kennedy: Let's assume that we adopt your formulation generally, that it has to be for legal error, collateral review has to be for legal error, and we could even add what the Ninth Circuit has found, it has to be by a court in order to avoid clemency, parole review boards, and so forth. I don't see why you don't lose anyway, because the allegation here, the complaint, the argument, may be that there was an abuse of discretion, and if there's an abuse of discretion, that is a legal ground to set aside the -- the sentence.

Aaron L. Weisman: I think, Your Honor, we have Alderson Reporting Company 1 to differentiate between a legal ground and the vehicle. Again, the vehicle, the reduction, the plea for leniency vehicle, is not a legal vehicle. It's simply, I think, as the Kholi panel recognized -­

Justice Kennedy: Well, it's a motion made in a court, reviewable by the appellate courts of the State.

Aaron L. Weisman: Well, it -- but -- but -­

Justice Kennedy: It's a little odd to say that that's not legal. If -- an abuse of discretion standard is something we're quite familiar with in the law. We've never thought of that as being somehow extra-legal.

Aaron L. Weisman: Well, to the extent it's abuse of discretion, it's really shorthand for the appellate court takes a look; if the sentence is within the proper bounds and if there was, quote, "some justification" for the imposition of the sentence, then it's affirmed. And just like on the -­

Justice Sotomayor: And if there's no justification, what do they do?

Aaron L. Weisman: If there's no justification -- I mean, I can say it hasn't happened so far in our State, and I think -- you know, I don't know what happens in other States, but, essentially, that's all Alderson Reporting Company 1 the inquiry is. They take a look at the sentence; if it's in the legal bounds, the filing of the motion itself, as to pre-'87 guidelines, presumes the validity of the conviction and sentence, and it simply says: Give me a second chance; take a second look; look at the offender, look at the characteristics, look at what -­

Chief Justice Roberts: Are those different than the characteristics that the sentencing judge looks at in the first instance?

Aaron L. Weisman: They could be the same. They could be other. There is a wide -­

Chief Justice Roberts: In other words, how these -- you've obviously seen a lot of these, and I haven't seen any, but I mean, do the Rule 35 motions typically say -- do they typically concede the legal validity of the sentence and then simply say -- what? I mean, I assume the sentencing is -- is completely open and you can put in anything at all, like the -- the deprived childhood, the unique situation, the age, whatever.

Aaron L. Weisman: Correct.

Chief Justice Roberts: In what sense is Rule 35 different from the arguments that are made at sentencing?

Aaron L. Weisman: It's not much different at Alderson Reporting Company 1 all, Your Honor. It is essentially the same. It is -­ it is simply -­

Chief Justice Roberts: But that's bad for you, isn't it, I mean for the very point that Justice Kennedy was raising? If it's the same sort of arguments that you get to raise as a legal matter prior to the imposition of sentencing, why should they not be considered legal matters when they're raised under Rule 35?

Aaron L. Weisman: Because we don't believe they are legal matters, Your Honor. What they're asking for is sentence leniency based on pure factual matters like, as you indicated, Your Honor, Chief Justice, the history of the individual, the various -­

Chief Justice Roberts: Are those issues that can be -- that are typically raised on direct -­ direct review?

Aaron L. Weisman: No, they're not, Your Honor. We have a procedure whereby generally sentence reduction and sentencing issues must be raised pursuant to Rule 35. If I could -­

Justice Sotomayor: Do you quarrel with a statement in Mollicone, a Rhode Island 2000 decision that says we will interfere with the trial court's Alderson Reporting Company 1 discretion, vis-à-vis sentencing, only in rare instances where the trial justice has imposed a sentence that is without justification and is grossly disparate from the other sentences generally imposed for similar offenses?

Aaron L. Weisman: No.

Justice Sotomayor: Is that the review standard?

Aaron L. Weisman: Correct, correct. What the -­

Justice Sotomayor: That is the standard of review, correct?

Aaron L. Weisman: Yes.

Justice Sotomayor: So please explain to me why that is not what Justice Kennedy described as a review for abuse of discretion and why a review for abuse of discretion is not a legal challenge?

Aaron L. Weisman: Well, what we suggest is the abuse of discretion that that is talking about is if there's no justification. They look -- again, they look at the sentence, and if there's no justification for it, then it will be an abuse of discretion. If there's some justification -- and, again, it hasn't happened. If there's some -- if the sentence is within the legal limits and there's some justification for it, it will be affirmed. That's -­

Justice Sotomayor: I'm sorry. Am I Alderson Reporting Company 1 misunderstanding you?

Aaron L. Weisman: That's the shorthand.

Justice Sotomayor: Are you saying that the Rhode Island appellate courts never change a sentence under Rule 35?

Aaron L. Weisman: We have not -­

Justice Sotomayor: Or are you saying that they do find some lack of justification in some sentences?

Aaron L. Weisman: No. What we're -- what we're saying, Your Honor, is if there's some justification for it and if it's within the legal sentencing bounds, the denial of the Rule 35 motion is affirmed. And that happens all the time.

Justice Scalia: Well, then -- then think you're saying that it only gets reversed for abuse of discretion, right?

Aaron L. Weisman: Well, Your Honor -­

Justice Scalia: And that's a legal ground, it seems to me. And I don't know how you could say that that's a plea for leniency. It's a plea that -- that the sentencing court abused its discretion and should have given a lesser sentence. How is that leniency? It's abuse of discretion.

Aaron L. Weisman: Because the inquiry is simply Alderson Reporting Company 1 -- I understand the words "abuse of discretion" are used, but the "no justification and manifestly excessive standard" simply, as the cases explicate, looks at the sentence; if it's legal and if there's some justification for it, the appeal is denied.

Justice Scalia: I don't want to have to figure this out case by case, or even jurisdiction by jurisdiction, as to whether it's an abuse of discretion review or a leniency review or this or that. And that -- that makes me inclined to say we should treat your Rule 35 as coming within the tolling provision, so we don't have to grapple with -- I mean, I'm not having very much success understanding the distinction that you're telling me. I don't want to have to do this for 50 States.

Aaron L. Weisman: I understand. But certainly, Your Honor, just -- just using the formulation that everything that's filed in a State court post a judgment of conviction qualifies would certainly be an odd way for that Congress to have expressed that.

Justice Ginsburg: Can you read the -- the relevant provision of the Rule 35? I mean, there are two categories, the ones about legal challenges, at least as I read the rule, and -­

Aaron L. Weisman: Yes. Alderson Reporting Company

Justice Ginsburg: Read the relevant part of Rule 35.

Aaron L. Weisman: Yes, certainly, Your Honor: "The court may correct an illegal sentence at any time." Period. "The court may correct a sentence imposed in an illegal manner, and it may reduce any sentence when a motion is filed within 120 days after sentence is imposed or within 120 days after receipt by the court of a mandate."

Justice Ginsburg: So you're talking about reducing -­

Aaron L. Weisman: We're talking -- this case involves only a motion to reduce sentence. And certainly the policy considerations for what Congress would have intended -­

Justice Kagan: Mr. Weisman, I'm sorry. Before you talk about policy, so this motion to reduce sentence is very short. It just says that the man "prays that the sentence imposed with respect to the above matter be reduced in accordance with the provisions of Rule 35." Would it make a difference to you if it said he prays that the sentence imposed -- he prays that the illegal sentence imposed with respect to the above matter be reduced in accordance with provisions of Rule 35? Alderson Reporting Company

Aaron L. Weisman: It might be.

Justice Kagan: If he had put in that word, "illegal," would that have made the difference?

Aaron L. Weisman: It might, Your Honor. And under our system, it might -- that might have been characterized, not as a sentence reduction provision or sentence reduction vehicle, but as a legal motion to correct an illegal sentence, or challenging the sentence.

Justice Kagan: So -- but that does suggest the difficulty that Justice Scalia raises, is that we're going to have to look at the particular rule of the State, we're going to have to look at the particular motion, we're going to look at any -- we're going to have to look at any State law regarding how motions are construed.

Aaron L. Weisman: Sure.

Justice Kagan: And this is going to be a very difficult determination.

Aaron L. Weisman: Sure. If I could just address that, Your Honor. The problem is -- it's simply because a statute of limitations is an affirmative defense, these are matters that already are going to have been concluded in the State court. Before anyone files for 2254, the State's court's going to have findings. Alderson Reporting Company 1 They're going to -- it's either going to be a motion for sentence leniency or it's going to be a motion to correct an illegal sentence. These matters -- and they have to be pled by the State as well. So when an applicant goes to Federal court, district court, and files a 2254, if we want to raise the affirmative defense of the time bar, which will save the Federal court a lot of time, obviously, because there is no case at all -- and if we can contrast it with exhaustion, for example, which, as this Court obviously is familiar with, presents very complicated questions of whether, you know, State procedures were exhausted and claims were exhausted, this is very straightforward. If somebody raises a motion which challenges the legality of the sentence, it will be characterized in State court in the run of the mine -- in the run of the mine cases, as an illegal sentence.

Justice Sotomayor: So a petitioner in the future in Rhode Island should file a petition that says: I'm filing a motion pursuant to 35(a) for an illegal sentence -- make something up -­

Aaron L. Weisman: Right.

Justice Sotomayor: -- or for leniency. And then are district courts supposed to figure out whether Alderson Reporting Company 1 the legal challenge was frivolous or not or had a basis in law or fact -­

Aaron L. Weisman: Well -­

Justice Sotomayor: -- and then decide whether they would toll or not toll based on that now side trial on what's an illegal sentence and what's just a plea for leniency? That's what you are proposing?

Aaron L. Weisman: Well, what we suggest actually is very straightforward, Your Honor. If somebody captions their document, you know, "Motion for sentence" -- "for sentence reduction and motion to correct an illegal sentence," that's not this case, obviously, because then the court -­

Justice Sotomayor: So what if they say "correct the illegal sentence because it was an abuse of discretion"?

Aaron L. Weisman: If it's -­

Justice Sotomayor: So is the magic words "illegal sentence" or is the magic words "abuse of" -­ what are the magic words?

Aaron L. Weisman: Well, it may not so much be magic words, but it's what the -- as this Court has said, it's what the substance of the motion seeks, and that will already have been determined in State court.

Justice Scalia: Either -- either your Alderson Reporting Company 1 victory will give you absolutely nothing, or you have truly stupid defendant lawyers in Rhode Island. I mean, why would anybody not caption the 35 motion that way?

Aaron L. Weisman: Because -­

Justice Scalia: What's to lose? You say it doesn't matter if your claim of an illegal sentence is frivolous or not. What's to lose?

Aaron L. Weisman: Because, Your Honor, they actually want to reduce their sentence. It's not -- we don't suggest it's not a matter of playing games. They -- you know, they feel they were sentenced for 30 years and maybe they want 20 years, and if they want to challenge the legality of the sentence, they recognize the established collateral attack vehicles.

Justice Alito: There is another argument that you could make, other than the one you've been pressing, which is that collateral review means something other than a step in the criminal case. But you've chosen not to make that; is that correct?

Aaron L. Weisman: Well, we've spoken about the words "collateral review" as embracing a case that's already -- upon looking -- a proceeding that occurs after the finality of the judgment, which obviously includes this Court's denial of cert or the time -­

Justice Scalia: But you've said that this Alderson Reporting Company 1 could be done before finality. I thought -- I -­

Aaron L. Weisman: No.

Justice Scalia: I'm sure you said that earlier, that this motion can be made before the judgment is final. Didn't you say that?

Aaron L. Weisman: It can. It certainly can, Your Honor. And we would suggest -­

Justice Scalia: But that's not what you just said.

Aaron L. Weisman: No -­

Justice Scalia: What you just said is after the finality. Which is it?

Aaron L. Weisman: We would suggest, Your Honor, that that furthers our argument. A Rule 35 motion is not collateral review because it is not a motion -- you could say even in a legal sense, motion. It's not a motion that occurs after the judgment becomes final. And we're looking at a tolling provision, and the congressional intent of the tolling provision was finality and exhaustion of State remedies.

Justice Sotomayor: I'm sorry. I'm not sure I understand that. There's nothing in this rule that bars a litigant from filing after the conviction is final. They have 120 days.

Aaron L. Weisman: They have 120 days. It can be Alderson Reporting Company 1 filed after the sentence is imposed, 120 days of that date, or 120 days after the conviction becomes final. And we would suggest that the term "collateral review" embraces, as Justice Alito indicated, sort of that concept that, obviously in a tolling provision, it begins to run when the conviction becomes final.

Justice Ginsburg: Justice Scalia's suggestion -­

Justice Scalia: Except that it says -­

Justice Ginsburg: -- that perhaps the -­ the leniency review is -- is not review of the conviction or sentence. But you didn't -- you didn't do anything with that. You didn't argue that the kind of review that's involved with leniency is really not review of the sentence for legal error.

Aaron L. Weisman: It's clearly not, Your Honor, correct. I think, as everybody here recognizes, the Kholi panel and the Respondents in this case as well characterized this Rule 35 proceeding as sort of apart, distinct, away from the underlying case. And that's undoubtedly true in the sense that it's not -- it's not part of the direct review process. It's -- it's clearly not. But that doesn't mean it's collateral review. It's not either/or. It could be -­

Justice Ginsburg: So what -- is it Alderson Reporting Company 1 something in between? It's not direct and it's not collateral?

Aaron L. Weisman: It's -- it's neither fish nor fowl, Your Honor. I mean, simply because it's not part of a direct review process doesn't mean that it's, quote, our argument would be, "collateral review," because, again, "collateral review" has this sort of meaning in the law, using this Court's decisions, using this Court's cases, referring to a post-judgment vehicle in which fundamental jurisdictional and other types of errors can be raised.

Justice Alito: What about a motion -­

Justice Scalia: I guess we need a new adjective then, because I'd always thought that there are two kinds of review, direct and collateral. You say there's a -- a tertium quid. What do you want us to call that?

Aaron L. Weisman: Well, I don't know that it needs to be called anything, Your Honor. I think the only question with respect -­

Justice Scalia: I think that maybe it doesn't need to be called anything because it doesn't exist. I -- I can't -­

Aaron L. Weisman: Well -­

Justice Scalia: -- imagine anything that Alderson Reporting Company 1 isn't either direct or collateral.

Aaron L. Weisman: -- it is certainly -- it is certainly an interesting vehicle because, it can be filed prior to the finality of the judgment and it can be filed -- and it can be filed after the judgment becomes final. And, again, going -- going back to the policies, the 2244(d)(2), very clearly, two big policies, again, are finality, which obviously it promotes -- these cases would not be in Federal court if they were time-barred -- and exhaustion of State remedies. To have a motion that seeks leniency only, there's no purpose that could be accomplished by bringing that motion into Federal court, and therefore it doesn't serve that purpose.

Justice Kagan: But, Mr. Weisman, that's true also of State habeas claims that are based only on State law. But six circuits have said that 2244(d)(2) applies to those claims. Are you contesting that?

Aaron L. Weisman: We're not. But the -- but the important element there, Your Honor, is that those vehicles can be raised to bring -- those are the vehicles, the collateral vehicles, through which the States have channelled constitutional, jurisdictional, and other fundamental claims. Alderson Reporting Company 1 The Rule 35 sentence reduction vehicle doesn't -- can't do it, can't do that service. So, sure, you could have -- you could have a habeas, and the only issue, the only claim raised in habeas could be, you know, it's in violation of -- of my State rights, which couldn't be heard in 2254, but -­

Justice Kagan: Where the exhaustion policy does not come into effect.

Aaron L. Weisman: Exactly. But Congress may have well said we're not going to be in the business of looking at the individual claims. Look, this is a collateral review vehicle. This vehicle is a recognized vehicle for bringing, for channeling in these claims. So that's going to toll. But this other vehicle, this Rule 35 sentence reduction vehicle -- it can never be used for a claim that could go to Federal court. It's pointless. I mean, it wouldn't serve the purpose, and of course it would undermine the State's interest in getting the State prisoners into Federal court within 1 year. I'll reserve my time if that's okay, Your Honor.

Chief Justice Roberts: Thank you, counsel.

Aaron L. Weisman: Thank you, Mr. Chief Justice.

Chief Justice Roberts: Ms. Mizner. Alderson Reporting Company 1 ORAL ARGUMENT OF JUDITH H. MIZNER ON BEHALF OF THE RESPONDENT

Judith H. Mizner: Mr. Chief Justice, and may it please the Court: The First Circuit here correctly held that Khalil Kholi's motion for a reduction of sentence under Rhode Island Rule 35 was an application for State postconviction or other collateral review with respect to the pertinent judgment or claim. As such, it tolled AEDPA's 1-year limitation period, and Mr. Kholi's petition was timely filed. We look to the common usage and ordinary understanding of the words of the tolling provision in the context of the statute. Collateral review is a proceeding occurring after final judgment that could affect that judgment.

Justice Alito: Am I correct that you think "post-conviction or other collateral review" means anything that occurs after the conclusion of direct review?

Judith H. Mizner: Yes, for purposes of the tolling provision.

Justice Alito: Then what does the phrase "or other collateral review" add? Why -- why wouldn't Congress just say "post-conviction review"? Alderson Reporting Company

Judith H. Mizner: In Duncan, this Court talked about the possibility of civil commitment or contempt in custody that could be part of the Rule 2254 proceeding and that that would not be postconviction. So that postconviction is a form of collateral review but is not the only form. In Duncan, the Court also discussed the fact that many States may call what other States call "post-conviction review" something else, and that that would also then be collateral. The collateral is just a -- an umbrella that encompasses postconviction and other forms of review after a judgment.

Chief Justice Roberts: Why don't you just call your motion a motion to correct an illegal sentence? Then we wouldn't have any dispute here, I gather.

Judith H. Mizner: Under the State's theory, there would not be. I did not file this motion.

Chief Justice Roberts: You're not one of the stupid lawyers that we were worried about before. (Laughter.)

Judith H. Mizner: I may be in other respects, Your Honor, but not this one.

Chief Justice Roberts: I'm sure of that. But you do think that if you had -- if you or whoever Alderson Reporting Company 1 files these motions had simply said that, there would be no problem, right?

Judith H. Mizner: From the State's perspective. I don't think that there's a problem with omitting the word "illegal," because -­

Chief Justice Roberts: Well, it's because you want something other than legal review, right? You want to throw yourself on the mercy of the court. You've got plenty of avenues to correct the illegality of the sentence, but this is something different, right? This is to -- not correct -- you admit it's illegal, but you say but it should still be reduced for a lot of reasons.

Judith H. Mizner: Yes. It is a request for the court to -- to review, to take a second look, to reexamine the sentence to determine whether or not it was unduly severe at the time that it was imposed. You are asking the court to -- to take a second look, either based on factors that were submitted at sentencing or additional information that -­

Chief Justice Roberts: You can raise all of those -- all of those claims under the normal State collateral postconviction, State habeas, all those other things, right?

Judith H. Mizner: You can raise those issues Alderson Reporting Company 1 under the postconviction review. You can also raise them -- in Rhode Island, there is a provision of the postconviction review statute that speaks of the -- any facts that would require a new proceeding in the interests of justice.

Chief Justice Roberts: So I guess I'm having trouble. You can -- the various grounds on which the sentence should have been lower than it was, including the fact that setting the sentence at that level was an abuse of discretion, you obviously can raise those at sentencing and you can raise those on direct review, right?

Judith H. Mizner: In Rhode Island, you cannot challenge your sentence on direct review.

Chief Justice Roberts: Can you challenge it on -- in State habeas?

Judith H. Mizner: You challenge it by way of the Rule 35 motion.

Chief Justice Roberts: That's the only vehicle you have -­

Judith H. Mizner: It's the normal -­

Chief Justice Roberts: It's the only vehicle you have for challenging the sentence.

Judith H. Mizner: That's the normal vehicle that is used for challenging the sentence. I believe that Alderson Reporting Company 1 you could also encompass it in a motion for postconviction relief, which is the kind of umbrella Rhode Island procedure for raising -- for a legal challenge.

Justice Kennedy: So after a conviction in the State, if there's an appeal with a number -- on direct review, with a number of issues, improperly admitted evidence and so forth, you -- the lawyer can't add: And, in addition, he was sentenced under the wrong provision; he was given 5 years too many because the judge cited the wrong provision. You can't say that on direct review?

Judith H. Mizner: Under my understanding of the Rhode Island Supreme Court decisions, the answer to that is no.

Justice Ginsburg: You can challenge only the conviction, not the sentence, on direct review?

Judith H. Mizner: I believe that that is the holding of the Rhode Island Supreme Court.

Justice Ginsburg: Do -­ CHIEF JUSTICE: In what -­

Justice Ginsburg: Do you agree that Rule 35 is not something that the prisoner must exhaust before seeking Federal habeas?

Judith H. Mizner: Exhaustion for Federal habeas Alderson Reporting Company 1 is limited to exhaustion of the claims that are going to be presented in the Federal habeas petition. And since a -- the denial of a request for a sentence reduction on the grounds of abuse of discretion is not going to be a claim that is cognizable in Federal habeas corpus jurisdiction, then you would not need to exhaust it.

Justice Ginsburg: But this is the whole purpose of allowing tolling of the 1-year Federal statute, the purpose to give the petitioner an opportunity to exhaust what he must exhaust?

Judith H. Mizner: Exhaustion is one of the purposes of the tolling provision, but this Court has recognized that AEDPA's purpose was to further the principles of comity and finality and federalism, and had a clear purpose of encouraging litigants to pursue claims in State court prior to seeking Federal review. So, tying the tolling provision to State applications shows congressional concern for comity, which at its core is a -- is a respect for the State processes that are used in reviewing the claims of State prisoners.

Chief Justice Roberts: I -- I may have asked this already, but it seems unusual to me so I want to make sure of the answer. Your -- you have a client who is convicted of a particular offense that results in Alderson Reporting Company 1 a sentence of, what, zero to 5 years, okay? And the judge, in imposing the sentence, engages in racial discrimination. It turns out that he sentences African-Americans to 5 years and Caucasian defendants to 2 years. That, you're telling me, is a claim that you cannot raise on direct review or on -- in State habeas?

Judith H. Mizner: It would be raised in the State Rule 35, a motion to correct.

Chief Justice Roberts: Well, you say it "would be raised." Are you saying it can only be raised under Rule 35?

Judith H. Mizner: It could be raised under the State postconviction review proceedings as well.

Chief Justice Roberts: That's what I would have thought. So Rule 35 is not the only vehicle for challenging a sentence?

Judith H. Mizner: No.

Chief Justice Roberts: Okay.

Justice Sotomayor: I -- your adversary said the contrary, and I was -- you're flip-flopping. Can this be brought on a direct appeal or not?

Judith H. Mizner: No, not -­

Justice Sotomayor: A non-legal sentence?

Judith H. Mizner: Not on direct appeal.

Justice Sotomayor: So what did you mean Alderson Reporting Company 1 when you answered the Chief Justice that it could be brought in collateral proceedings?

Judith H. Mizner: Well, rule 35 is a collateral proceeding -­

Justice Sotomayor: That's -­

Judith H. Mizner: The -­

Justice Sotomayor: Just so your adversary, when he gets up on rebuttal, can confirm or not this point, any challenge to an illegal sentence has to be brought first in a Rule 35(a) motion, regardless of what the grounds of the illegality are?

Judith H. Mizner: Yes, or perhaps in a motion for postconviction relief under section 10-9.1.

Justice Alito: Can I return to the question Justice Ginsburg asked a couple of minutes ago? We have -- let's say we have a case in which a defendant convicted in State court has some exhausted Federal claims that this defendant wants to raise in a Federal habeas; also files a motion seeking a reduction of sentence based purely on a request for leniency, a sentence within the range prescribed by the statute. What purpose is served by tolling the time to file the Federal habeas during the pendency of this request for leniency in the State court? Now, you say comity, but in concrete practical terms, what purpose is served? Alderson Reporting Company

Judith H. Mizner: A prisoner who receives adequate relief in the State court, through whatever vehicle, may choose not to pursue a Federal habeas corpus claim.

Justice Alito: In your experience, does that happen a lot? You have somebody who is sentenced to a 5-year sentence and that's within the range, also has legal challenges that would result in no conviction, no time whatsoever and no criminal conviction -- that person decides to give up on the legal challenge because the 5-year sentence might be reduced to 3 or 2 or 1?

Judith H. Mizner: I would say that would be unlikely, but there are many Federal habeas cases that are -- raise questions of, for example, ineffective assistance of counsel at sentencing. A State resolution that reduces the sentence would obviate the need for a Federal habeas petition in that context.

Justice Breyer: Can you explain -­

Justice Ginsburg: If you look at 2255 -­ that's the Federal postconviction review, and it also has a 1-year statute of limitations. That limitation would not be tolled for a Federal Rule 35 motion. So why should it be tolled for State?

Judith H. Mizner: , Justice Ginsburg, has no tolling provision at all, and the reason for that may Alderson Reporting Company 1 perhaps be the respect for comity that Congress recognized when you are addressing a 2254 petition filed by a State prisoner.

Justice Kagan: I think, Ms. Mizner, the amicus brief in this case asserted that, in Rhode Island or in other States with a rule like this, many judges sit on these Rule 35 motions. They just let them stay pending for a considerable period of time, in order to retain some ability to modify the sentence if and when they feel like doing so. Is that your understanding of what happens to these motions, that they just sit, that they are not denied?

Judith H. Mizner: I don't practice in Rhode Island, but in this case the Rule 35 did not sit. It was resolved by the trial court within 3 months. The issue, the potential for abuse from sitting on motions is not limited to a Rhode Island Rule 35. It's not a peculiar concern.

Chief Justice Roberts: Well, I guess the question -- and I'm sorry if I cut you off -- is not that this is a question of abuse, that it may be a good thing. The idea is you've got a motion for reduction of sentence because of mercy, and the judge might say: Well, I'm inclined to exercise mercy if you come out of the rehab program in a good way, if it turns out after Alderson Reporting Company 1 the first several months that you're a model prisoner. In other words, it's not a question of abuse, it's a good thing; and if we start saying that the time for Federal habeas is tolled, judges might be inclined not to exercise such charity based on the prisoner's conduct after conviction.

Judith H. Mizner: Well, the Rule 35 also provides that the decision must be made within a reasonable time.

Chief Justice Roberts: days, right?

Judith H. Mizner: No, 120 days is the time frame -­

Chief Justice Roberts: For filing?

Judith H. Mizner: -- within which the motion must be filed.

Chief Justice Roberts: Right.

Judith H. Mizner: The rule also provides that it must be decided, resolved, within a reasonable time. So there is a -- a limitation in that respect.

Justice Scalia: Do we have any indication in the case law what a reasonable time consists of?

Judith H. Mizner: I have not found any Rhode Island cases discussing that particular question.

Justice Breyer: Can you go back for a second? Imagine a defendant is convicted of robbery and he's sentenced to 10 years. He thinks there is an error Alderson Reporting Company 1 in my conviction of a legal nature, and he thinks there is another error in my -- in my sentence of a legal nature. Now, I take it in Rhode Island he files an appeal to consider the first.

Judith H. Mizner: Yes, Justice Breyer.

Justice Breyer: And as to the second, he files a Rule 35 motion.

Judith H. Mizner: That's my understanding of Rhode Island -­

Justice Breyer: And when does he file the Rule 35 motion? Because it says at any time.

Judith H. Mizner: No. A Rule 35 motion must be filed within 120 days.

Justice Breyer: No, it doesn't say that. It says a court may correct an illegal sentence "at any time." I'm talking -­

Judith H. Mizner: I'm sorry.

Justice Breyer: It has nothing to do with mercy. I want to know how it works. He says there's a legal error in my sentence. When -- how does he get that corrected?

Judith H. Mizner: A defendant would have an interest in getting it corrected as soon as possible.

Justice Breyer: I have -- I'm not -- don't take what I have as my view. I just want the fact. I'm Alderson Reporting Company 1 asking you a fact. When -- how and when does the person correct the legal error in his sentence?

Judith H. Mizner: He could correct it by filing the motion at any time, and -­

Justice Breyer: Where?

Judith H. Mizner: In the trial court.

Justice Breyer: And if the trial court says no, what does he do?

Judith H. Mizner: He appeals that.

Justice Breyer: Fine. Okay. So now we have two appeals. One is from the judgment of conviction; another is from the judgment imposing the sentence. Now, the Federal statute says a 1-year period of limitation shall apply from the date on which the judgment became final. Correct?

Judith H. Mizner: Yes.

Justice Breyer: Okay. When is the date on which the judgment of the sentence became final?

Judith H. Mizner: If both appeals are pending at the same time, the practice would be to consolidate them, so you would have a ruling from the Rhode Island Supreme Court -­

Justice Breyer: And if they are not appealing -- they are not -- they are not at the same time, then what? Alderson Reporting Company

Judith H. Mizner: Then the judgment would become final when the Rhode Island Supreme Court affirmed the conviction and either this Court -­

Justice Breyer: Why not the sentence?

Judith H. Mizner: You may have two time frames -­

Justice Breyer: In April, they affirm the conviction. In June, they affirm the sentence. Do those 2 months -- does the date on which the judgment became final by conclusion of direct review, does that run from April or from June?

Judith H. Mizner: I would say June.

Justice Breyer: June. Okay. Now, suppose he doesn't -- suppose that there were no appeal from the -- I see. Our problem is that there is no appeal from the judgment -- from the sentence where he asks for correction as a matter of mercy and not law.

Judith H. Mizner: There may be an appeal -­

Justice Breyer: There may be?

Judith H. Mizner: -- from such -- from the denial of a Rule 35.

Justice Breyer: What I'm trying to figure out is why, if you're willing to call, for purposes of one -- the 1-year statute begins to run from the time the direct appeal becomes final. Why is it a direct appeal of a sentence where you appeal the matter of law Alderson Reporting Company 1 and it isn't a direct appeal of a sentence where you ask for mercy? It's the same rule. It's the same procedure.

Judith H. Mizner: It -- the Rule 35 -­

Justice Breyer: This would help you just as much, I imagine. I'm just trying to get it straight in my mind.

Judith H. Mizner: Rhode Island's manner of addressing the Rule 35 seems to be somewhat unusual in terms of -­

Justice Breyer: I know. You see, my basic question is: Why -- look, two appeals; one judgment, one sentence. Okay? January, June. You're prepared to say the 1-year statute does not begin to -- to run until June. Fine. The Rule 35 motion, when you took an appeal, became final for purposes of the Federal habeas statute in June. So why doesn't the Rule 35 motion become final under (1)(a) of the habeas statute, whenever that's decided finally? Why is it collateral at all? Why isn't it direct, just as your first one was direct?

Judith H. Mizner: If the Rule 35 motion is filed after the Rhode Island Supreme Court affirms the judgment with -­

Justice Breyer: Wait a minute. Judgment of Alderson Reporting Company 1 what? Judgment of conviction -­

Judith H. Mizner: The judgment of conviction.

Justice Breyer: -- or judgment of sentence?

Judith H. Mizner: Judgment of conviction. The Rule -­

Justice Breyer: That's not the same reason that it doesn't become final when you haven't appealed your sentence yet, or when they haven't -- they didn't consolidate. I am quite confused, as you see, as to how this all works in Rhode Island. I -- Rhode Island -- I used to be on the First Circuit. I know it has some special ways of doing things that are sometimes different, and this is different.

Judith H. Mizner: It is, Justice Breyer. And I have not seen any Rhode Island cases addressing a Rule 35 motion that was not filed after the judgment of conviction had been affirmed in the context of looking for a discretionary reduction of sentence.

Justice Breyer: There must be in Rhode Island some complaints about the sentence.

Judith H. Mizner: In terms of a motion for reduction for leniency -­

Justice Breyer: Both.

Judith H. Mizner: I have not seen any -- Alderson Reporting Company 1 prejudgment -- pre-Rhode Island Supreme Court resolutions.

Justice Alito: What would happen if the statutory maximum for an offense in Rhode Island is 5 years and the sentencing judge imposes a sentence of 10 years, and the defense attorney at that time says, well, you can't do that, that's more than a statutory maximum; and the judge goes ahead with it, and then an appeal is taken? You're saying that the appellate court in Rhode Island would not entertain that argument? They would say you have to go back and make a Rule 35 motion in the trial court? Maybe that's the procedure.

Judith H. Mizner: That is -­

Justice Alito: It seems odd. Is that it?

Judith H. Mizner: That is what the Rhode Island Supreme Court has said.

Justice Kennedy: Is there a citation for that, that you have? Is it your -­

Judith H. Mizner: I do not have that with me.

Justice Alito: Could I return you to something more basic? Do you think the term "collateral review" is a legal term of art, or is it a term that we can -- we should interpret simply by looking up the word "collateral" in a dictionary? Alderson Reporting Company

Judith H. Mizner: Well, this Court has discussed the -- has used the term "collateral review" in a -- a number of different contexts, in civil cases, in habeas cases, in the -- in the manner of distinguishing between direct review and something that is outside direct review.

Justice Alito: Isn't -- if I look up "collateral attack" in Black's Law Dictionary, won't I find a definition there? And won't it tell me that this is something other than the proceeding? This is an attack on a judgment outside of the proceeding that led to the entry of that judgment. Isn't that what the term generally means?

Judith H. Mizner: "Collateral" generally means supplementary, as defined in Black's, and "collateral attack" in Black's is defined as an attack on a judgment in a proceeding other than direct appeal.

Justice Alito: Right.

Judith H. Mizner: But the Rule 35 motion in Rhode Island is not part of a direct appeal. It is a separate, specific -­

Justice Alito: But it's part of the case.

Judith H. Mizner: It is part of the case, Justice Alito, but a -- a motion for a new trial based on newly discovered evidence, which is viewed as Alderson Reporting Company 1 collateral, is also part of the original proceeding.

Justice Alito: Well, what about just a regular motion for a new trial, not based on newly -- on newly discovered evidence? Is that collateral, or is -­ is that part of the -- the criminal proceeding?

Judith H. Mizner: The motions for new trial -- a motion for a new trial that has to be filed within 10 or 14 days of the conviction would be part of the direct appeal and therefore would be -- would not be collateral. But a motion for a new trial that is filed after the judgment is affirmed by a court of appeals and the time for cert has passed would be collateral.

Justice Alito: Well, what's wrong with the argument that nothing that occurs in the criminal case itself is collateral? What Congress had in mind when it spoke about collateral review was something like habeas. Let me give you an alternative interpretation of this, and maybe it's completely wrong, but you'll tell me why it's wrong. "Post-conviction" is a term of art. Many States, including Rhode Island, have postconviction review statutes. So Congress wanted to have that time, the time when those proceedings were tolled -- were pending tolled. But not every State uses that phrase. Not every State uses that term. They have other names Alderson Reporting Company 1 for the proceeding, and that's what's meant by "other collateral review." "Collateral review" is a term of art. It's not something that you understand by looking up the word "collateral" in a dictionary. What's wrong with that?

Judith H. Mizner: There is no indication that Congress was limiting the use of the term "collateral review" to a postconviction legal challenge. Congress could have said that if it had wished.

Justice Alito: I'm not saying it has to do with whether it's legal or something else. It has to do with whether it's in the criminal case or not in the criminal case.

Judith H. Mizner: Traditionally, motions that are filed -- motions for a new trial are -- may be filed after the judgment has been affirmed and have been viewed by the courts as collateral, as collateral review. So there is -- the tradition doesn't limit the use of the term "collateral review" to a proceeding that is completely separate and apart. Indeed, a 2255, while it may be separately filed, is then consolidated with the original proceeding, and there's an entry in the docket -- you shall not file any more pleadings in that separate case. It all goes back to the original case. The 2255, which Alderson Reporting Company 1 is collateral, is heard by the trial court. So there is a -- there is no reason to assume that Congress was limiting collateral review to something outside of the original proceeding.

Justice Kagan: Do you -­

Justice Alito: is -- is in the original case, but it's a habeas substitute. It was adopted by Congress as a substitute for habeas; isn't that right?

Judith H. Mizner: Yes.

Justice Kagan: Do you think that a petition for clemency that's presented to the governor would toll the limitations period?

Judith H. Mizner: No, I do not, Justice Kagan.

Justice Kagan: Why -- why is that different?

Judith H. Mizner: Because 2244(d)(2) is tolling an application for review with respect to the pertinent judgment or claim. And a -- an application for clemency doesn't produce any change in the judgment that is rendered by the court. It's not a request that is related to the legal reasoning behind a judgment; it doesn't challenge the basis for the judgment. And it's an executive branch function, in some cases with advice and consent of a legislative body. And there's no Alderson Reporting Company 1 judicial review. So it is -­

Justice Scalia: Well, that may be right, but I don't think that's the reason. I -- I thought we had held that the word "filed" in the petition means filed in a court, not filed with the governor. It's -­ it's the word "filed" in -- in the tolling provision that -- that does the work.

Judith H. Mizner: I would agree.

Justice Ginsburg: You think it doesn't matter that -- I mean, a Rule 35 motion is a motion made in the original criminal proceeding, not to the side of it. So isn't a collateral attack a sort of -- another proceeding to the side of the main proceeding, but the Rule 35 motion is filed in the criminal proceeding itself?

Judith H. Mizner: Yes, it is, Justice Ginsburg, as is a Rule 33 motion for a new trial based on newly discovered evidence, which courts have held to be collateral. It's a question of -- of when these motions are filed that makes them collateral. They are not part of the direct review process.

Justice Scalia: So if this was -- if this motion had been filed before judgment, which can happen, before the judgment is final, then there would be no tolling? Alderson Reporting Company

Judith H. Mizner: Tolling would not come into -­ into play until after the judgment has become final. If this has been addressed and -­

Justice Scalia: So the question -­

Judith H. Mizner: -- resolved prior to, it would have no impact on tolling.

Justice Scalia: So the answer is yes. This motion which can be filed either before or after judgment -- the time is tolled if it's made after the judgment but not if it's made before.

Judith H. Mizner: Yes.

Justice Sotomayor: There seems to be some confusion. Judgment is rendered before this motion is made. There's a conviction and there's a sentence, right?

Judith H. Mizner: Yes.

Justice Sotomayor: So there's a judgment rendered. That's different from whether the judgment is final in a Federal sense. It's final as far as the State is concerned, because the judgment was rendered, correct?

Judith H. Mizner: Well, the judgment would become final as far as the State is concerned, if on appeal, if there is an appeal and the Rhode Island Supreme Court has affirmed. Alderson Reporting Company

Justice Sotomayor: But if there's no appeal, it was final the day it was rendered.

Judith H. Mizner: Yes.

Justice Sotomayor: As far as the State is concerned. If there is an appeal, then it may undo that, correct?

Judith H. Mizner: Yes.

Justice Sotomayor: So there is a judgment, and this is always post-judgment.

Judith H. Mizner: Yes.

Justice Scalia: Well -- well, that's not -­ that's not what the State says, anyway. The State says, and I think the way 35 reads, it doesn't have to be filed after judgment.

Judith H. Mizner: It has to be filed within 121 days after the entry -- after the sentence.

Justice Scalia: That's right. It can't be filed any later than that. But it doesn't say that it can't be filed before judgment.

Judith H. Mizner: It would have to be filed after the sentence is imposed.

Justice Scalia: That's right.

Judith H. Mizner: And the sentence -­

Justice Scalia: When does -- when does it become final? When does the -- even at the trial court Alderson Reporting Company 1 level, when does it become final?

Judith H. Mizner: I would say that the -- it becomes final when it is imposed.

Chief Justice Roberts: Thank you, counsel. Mr. Weisman, you have 6 minutes remaining. REBUTTAL ARGUMENT OF AARON L. WEISMAN ON BEHALF OF THE PETITIONER

Aaron L. Weisman: Thank you, Mr. Chief Justice. I'll begin -- if I could just clarify regarding the scope of Rule 35. The reporter's notes to Rule 35 do make it very clear that an illegal sentence is one which has been imposed after a valid conviction but is not authorized under law. It includes, e.g., a sentence in excess of that provided by statute, imposition of an unauthorized form of punishment, a judgment that does not conform to the oral sentence. And our supreme court has gone on to explain this provision by saying: We have never -- we have never countenanced a challenge to the constitutionality of a penal statute in the context of a Rule 35 motion, nor have we declared that a sentence imposed pursuant to an unconstitutional statute is illegal as contemplated by Rule 35.

Justice Sotomayor: I'm sorry, I -- you were speaking so fast, I didn't follow you. Alderson Reporting Company

Aaron L. Weisman: I'm sorry, Justice Sotomayor.

Justice Sotomayor: Perhaps we can go back to the simple question, which is, can a defendant who has been sentenced bring a challenge to a sentence in a direct appeal or not? Or do they have to go by Rule 35(a)?

Aaron L. Weisman: Although there is dicta and some language where our supreme court says essentially file challenges to your sentences pursuant to Rule 35, it is clear that only certain types of challenges can be brought in a Rule 35 motion. In the run of the mill cases, they have to be brought if there is an appellate record in direct appeal, or most commonly they're brought pursuant to the State's postconviction relief.

Justice Sotomayor: All right. So now we get to the point where some can go under 35(a) but some can't.

Aaron L. Weisman: Right.

Justice Sotomayor: So they should go on direct appeal, correct?

Aaron L. Weisman: The only ones that are correct under 35(a) are, again, where the sentence is not authorized by law or has imposed an unauthorized form of punishment or a judgment that -­

Justice Breyer: That's called "it's Alderson Reporting Company 1 illegal."

Aaron L. Weisman: Correct. Correct.

Justice Breyer: So now it's illegal.

Aaron L. Weisman: Correct, but -­

Justice Breyer: And the odd thing is that -- that kind of appeal takes place either days or possibly weeks after the defendant may already have appealed his conviction to the higher court.

Aaron L. Weisman: Well -- correct.

Justice Breyer: Is that right?

Aaron L. Weisman: That is correct.

Justice Breyer: That normally happens?

Aaron L. Weisman: Correct.

Justice Breyer: And what I'm curious about is what happens if the court affirms that sentence, let's say 2 months after it already affirmed the conviction?

Aaron L. Weisman: Right. And our -­

Justice Breyer: Which is the judgment pursuant to which -- which is the judgment that became final by conclusion of direct review?

Aaron L. Weisman: And our position would be that's not part of the direct review appellate process.

Justice Breyer: Why?

Aaron L. Weisman: That the -- Alderson Reporting Company

Justice Breyer: The person is not being held in custody pursuant to a judgment of the State court, or at least a relevant judgment, until the sentence has been appealed. Then there's the conclusion of direct review in respect to the judgment in respect to which he is being held in custody. I'm just reading the statute -­

Aaron L. Weisman: Yes.

Justice Breyer: -- the Federal statute.

Aaron L. Weisman: But, Your Honor, that could occur at any time. That can occur 5 or 10 years or 20 years later.

Justice Breyer: Exactly.

Aaron L. Weisman: And we're not -­

Justice Breyer: And that's why I don't -­ that's why I am confused. I look at the language of the Federal statute and it seems to me that this individual is not being held in custody pursuant to a judgment until that sentence is final.

Aaron L. Weisman: But we would suggest -­

Justice Breyer: And the sentence is final in the lower court, but they say when the sentence is final at the conclusion of direct review in respect to that sentence, which hasn't even taken place yet.

Aaron L. Weisman: Yes, but our point would be, Alderson Reporting Company 1 Your Honor, that it doesn't move the start of the 1-year limitations period. The start of the 1-year limitations period, as this Court said in Jiminez v. Quarterman, begins when it begins. It begins when that judgment becomes final, which is 90 days after our supreme court affirms the judgment of conviction. It's final.

Justice Breyer: Okay. Then you're going to say -­

Aaron L. Weisman: It doesn't -­

Justice Breyer: -- all appeals in Rhode Island from sentences -- all appeals on their lawfulness or their mercy take place under Rule 35, and all of them are collateral.

Aaron L. Weisman: No. What we -- respectfully, what we're going to say is collateral review refers to those, as this Court said in Duncan v. Walker, habeas postconviction relief vehicles that -- that occur after the conviction has become final.

Justice Sotomayor: I'm totally confused. If this is part of the criminal proceeding, which is your position, that it's not collateral, but it's part of the proceedings, when does this proceeding become final?

Aaron L. Weisman: It becomes final -­

Justice Sotomayor: That -- that truly -- Alderson Reporting Company 1 because -- you're -- you're -­

Aaron L. Weisman: Well, under Jiminez v. Walker, it becomes final when -- 90 days from when the supreme court affirms the conviction.

Justice Sotomayor: But if the Rhode Island court has told litigants that they can't challenge some portions of an illegal sentence except by way of Rule 35, how can we call the decision on the affirmance of the conviction a final determination of the legality of the sentence? That's contradictory.

Aaron L. Weisman: Because Congress has decided to pick the day on which the appeal becomes -- the conviction becomes final, which always occurs 90 days after the State's high court -­

Justice Sotomayor: Well, but that's not -­ that's not what the -- what it says. It talks about a judgment. And a judgment in -- in other terms is usually the conviction and the sentence. Rhode Island for its own reasons has separated the two, but -­

Aaron L. Weisman: Yes, but Congress has set four dates on which the conviction becomes final.

Chief Justice Roberts: Thank you, counsel. The case is submitted. (Whereupon, at 11:01 a.m., the case in the above-entitled matter was submitted.)