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People v. Quinto 2012 NY Slip Op 00851

New York Court of Appeals Decided on February 9, 2012 

Issue: What type of information qualifies as a report of a sex crime against a child that will trigger the commencement of the statute of limitations under CPL 30.10 (3) (f), or to state the issue another way - Whether the information that Jane disclosed to the police on November 8, 2002 was a “report” to the authorities that was sufficient to bar the availability of the tolling provision in CPL 30.10 (3) (f) in connection with the indictment against defendant.

Holding: The information Jane shared with the police in November 2002 did not activate the statutes of limitations under CPL 30.10 (3) (f) because she neither identified defendant as the perpetrator nor reported or revealed any of the sex offenses charged in the indictment. Under these facts, the statutes of limitations for the indicted sex crimes did not begin to run until Jane reached 18 years of age in January 2006. The charged sex offenses therefore are not time barred.

Legal Analysis: In New York class B felony sex offenses have no limitations period, all other felonies are covered by a five-year statute of limitations. A two-year window applies to misdemeanors and petty offenses must be prosecuted within one year.

The general rule is that the time period commences when a criminal offense is committed.

CPL 30.10 (3) (f). established that the statute of limitations in a prosecution of a sex offense (other than those that are not subject to any limitations period) committed against a minor does not begin to run “until the child has reached the age of eighteen or the offense is reported to a law enforcement agency or statewide central register of child abuse and maltreatment, whichever occurs earlier”. Although majority age replaced the commission of the crime date as the general starting point for the statute of limitations, a statutory exception starts the clock running sooner. The limitations period is triggered if “the offense is reported” to the police or to the central register for child abuse.

To begin, the text of CPL 30.10 (3) (f) compels us to reject defendant’s argument that Jane’s early statements to the police encompass all three of the time periods designated in the indictment. The statute specifically refers to a report of “the offense”. The only purported crime that Jane discussed with the police in November 2002 was an alleged August 2002 rape by a classmate. Jane did not mention any other sexual conduct occurring either before or after the alleged incident. As a result, the statutes of limitations did not commence on the initial disclosure date — November 8, 2002 — for any of the sex offenses within those two time frames. Rather, the limitations periods for those crimes began to run when Jane turned 18 years old in January 2006.

We next turn to the question of whether Jane’s disclosure to the police in November 2002 constituted a “report” requiring dismissal of the sex offenses occurring during the second time period identified in the indictment. CPL 30.10 does not define the word “reported” so we must apply its ordinary and natural meaning. “Report” is usually defined as describing or giving an account of something. As we have explained, the term “the offense” refers to a discrete criminal act or series of acts that satisfies the elements of a particular penal statute. Combining these definitions, the phrase “the offense is reported” as used in CPL 30.10 (3) (f) would mean a communication that, at a minimum, describes the offender’s criminal conduct and the particular harm that was inflicted on the victim. Information of this nature provides the police with actual notice that a specific criminal offense has occurred, allowing them to conduct a prompt investigation.

Considered in this manner, the information that Jane provided to the police in November 2002 certainly was a “report” but the operative question is, a report of what? The “report” provision triggering the five- and two-year statutes of limitations for sex offenses under CPL 30.10 (3) (f) would have applied only to the incident that was directly derived from the[*7]information obtained from Jane the manner, time and place that she was supposedly sexually assaulted. Since no information linked defendant to the circumstances of the reported crime, we hold that the People were entitled to apply CPL 30.10 (3) (f) and, contrary to the dissent’s conclusion, the statutes of limitations for the indicted sex offenses in the second charged time period did not commence until Jane became 18 years of age.

In our view, this meaning of the phrase “the offense is reported” is consistent with the legislative history and purpose of CPL 30.10 (3) (f). The statute was based on a societal acknowledgment that victims of childhood sexual abuse who do not (or, indeed, who cannot) disclose such acts while they are minors should be given a reasonable period of time after becoming adults to divulge the abuse they suffered. Based on the ordinary meaning of the terms used in CPL 30.10 (3) (f), the legislative history of the statute and its overarching purpose, it is clear that the drafters established the age of 18 as the operative date of the limitations periods unless the police or statewide abuse register receive earlier actual notice that a child has been sexually victimized. We therefore believe that the extension of the limitations periods for sex crimes against children under CPL 30.10 (3) (f) is best accomplished by recognizing that the reporting requirement should be interpreted to cover only the specific criminal acts that are disclosed in a communication. Consequently, we hold that the triggering “report” required under the statutory exception refers to a communication that, at a minimum, describes the offender’s alleged criminal conduct and the harm inflicted on the victim.

In sum, the information Jane shared with the police in November 2002 did not activate the statutes of limitations under CPL 30.10 (3) (f) because she neither identified defendant as the perpetrator nor reported or revealed any of the sex offenses charged in the indictment. Under these facts, the statutes of limitations for the indicted sex crimes did not begin to run until Jane reached 18 years of age in January 2006. The charged sex offenses therefore are not time barred.

Next, we address the timeliness of those charges and the applicability of another tolling provision — CPL 30.10 (4) (a) (ii) — which may apply to any crime subject to a limitations period. It excludes any periods of time following the commission of an offense if “the whereabouts of the defendant were continuously unknown and continuously unascertainable by the exercise of reasonable diligence.” We have explained that this statute covers cases where the police are unable to identify the perpetrator of a crime despite the exercise of reasonable diligence or have identified the perpetrator but cannot find him after a diligent investigation. Police knowledge that a crime was committed is a necessary prerequisite to the statute’s application. Subdivision (4) (a) (ii) therefore operates in a manner that is [*8] quite different than subdivision (3) (f) — it excludes time only if the police are aware of a particular crime, whereas subdivision (3) (f) stops the limitations clock if the police do not know that a child has been the victim of a sex offense.

Because the police did not learn about the non-sex crimes charged in the indictment until Jane revealed her allegations in December 2007, we conclude that CPL 30.10 (4) (a) (ii) did not toll the time between the alleged commission of the offenses and Jane’s disclosure. Consequently, the one- and two-year limitations periods that apply to the indictment’s non-sexual misdemeanors and petty offenses began to run when those crimes purportedly happened in 2002, hence the timeliness for prosecution of those crimes expired in 2003 and 2004, respectively, well before the accusatory instrument was issued in this case. We agree with the Appellate Division that the non-sexual misdemeanors and petty offenses must be dismissed.

Facts: The child at issue in this case, was 14 years old when she underwent a medical examination in November 2002 that revealed she was 12 weeks pregnant, at first; Jane denied that she had been sexually active. She later claimed that she had been raped in August 2002 at school by a classmate.

Jane eventually told the investigating police officers that she had consensual, unprotected intercourse with a 14-year-old boy. After she gave the police a written retraction of the rape accusation, the case was closed.

Jane turned 18 years of age in January 2006. Over a year later, when she was 19 years old, Jane informed the police that she had been sexually assaulted years earlier by her step-grandfather, defendant Santos Quinto. Defendant was charged in a felony complaint with rape and related offenses.

Jane subsequently testified before a grand jury that defendant had raped her on three different occasions in 2002 in the Brooklyn home where they resided: She also explained that she had kept the sexual assaults and pregnancy a secret from everyone because defendant warned her not to say anything and she was afraid of him.

Defendant was indicted for three counts of second-degree rape; one count of third-degree rape; three counts of sexual misconduct; three counts of endangering the welfare of a child; three counts of third-degree sexual abuse; one count of third-degree menacing; and three counts of second-degree harassment. He moved to dismiss the indictment in its entirety, contending that the statutes of limitations for all of the charged offenses had expired. Defendant asserted that the limitations periods began to run under CPL 30.10 (3) (f) when Jane informed the police in November 2002 that she had been raped by a classmate.

Supreme Court agreed with defendant and dismissed the indictment, concluding that Jane had “reported” the crimes to the police in November 2002.

The Appellate Division modified by reinstating the felony and misdemeanor sex offenses. The court determined that Jane had not made a “report” related to defendant’s alleged sex crimes in November 2002, which [*5] meant that the limitations periods for the sex offenses did not begin to run until Jane turned 18 in January 2006. With regard to the non-sex offenses, however, the Appellate Division ruled that they were barred because the statutes of limitations for those offenses had expired and the “continuously unknown and continuously unascertainable whereabouts” tolling provision in CPL 30.10 (4) (a) (ii) was not applicable under the facts presented.

People v. Porco 2011 NY Slip Op 07255

New York Court of Appeals decided on October 18, 2011 

Issue: Whether the Sixth Amendment right to confrontation was violated when the trial court admitted testimony that the defendant’s mother nodded affirmatively when asked by the police if the defendant was the person who assaulted her.

Holding: Trial errors resulting in violation of a criminal defendant’s Sixth Amendment right to confrontation are considered harmless when, in light of the totality of the evidence, there is no reasonable possibility that the error affected the jury’s verdict.

Facts: The evidence at trial included, among many other things, video recordings from traffic cameras. Expert testimony DNA profile matched the profile from a sample extracted from a toll ticket handed out at the thruway.

There was also considerable evidence that defendant repeatedly lied to his parents about his mounting financial and academic problems, and that his parents had caught on.

The evidence of this staged break-in was unique and highly probative of defendant’s identity as the perpetrator of the crimes for which he was being tried, where the family home was likewise staged to make it appear as though his parents had been victimized by a stranger. The alarm had, in fact, been turned off by someone who knew the master code.

Legal Analysis: The Court of Appeals affirmed the conviction because of the overwhelming evidence of the defendant’s guilt.  Interestingly, the Court did not address whether or not the physical gesture (the head nod) by the mother was testimonial.  One is left to assume that the Court of Appeals considered this testimonial evidence because it was given in response to questions by the police.

This case is a perfect example of the Court’s application of Harmless Error Analysis when considering the Sixth Amendment Right to Confrontation.  The ultimate holding was that there was so much evidence of the defendant’s guilt that the admission of the gesture by his mother (no doubt a communication to the police) was harmless error in that it would not have effected the jury’s verdict either way.

Collins v. Ercole 2012 WL232966

Decided January 26, 2012 Second Circuit Court of Appeals

Click here to see Text of Habeas Corpus Statute

Click here to see Habeas Corpus Statute of Limitations 

Click here to see Habeas Corpus Certificate of Appealability

Issue: Whether certain post conviction filings in the State courts will toll the time for statute of limitations for filing writ of Habeas Corpus.

Holding: The Article 78 proceeding did not toll the time on the statute of limitations to file a writ of habeas corpus because it did not rise any of the grounds asserted in the habeas petition and did not involve a form of review of the state judgment.

Facts: In 2001, Petitioner–Appellant Arvin Collins (“Petitioner”) was convicted of murder and attempted murder in New York state court. In 2005, Petitioner’s 2001 judgment of conviction became final, following the conclusion of direct review. Between 2005 and 2008, Petitioner brought several post-conviction motions in state court. In 2008, Petitioner filed a federal petition for a writ of habeas corpus regarding the 2001 judgment of conviction. The district court (Hellerstein, J.) dismissed the petition as untimely under 28 U.S.C. § 2244(d)(1).

In 1988, Petitioner was convicted of first-degree robbery in state court and sentenced to an indeterminate prison term of seven to fourteen years. He was released on parole in 1996; in 1999, he was arrested again, this time for murder. In 2001, Petitioner pled guilty to two counts of second-degree murder and one count of second-degree attempted murder.

Because of Petitioner’s previous robbery conviction, the attempted murder counted as a second violent felony under New York law.

The trial court imposing sentence in 2001 directed that these three terms were to run concurrently.Where, however, a sentence is imposed pursuant to § 70.04 on an individual who is subject to a prior undischarged prison term, that sentence must run consecutively to the previous term.

The New York State Department of Correctional Services (DOCS), in calculating the total period of incarceration, determined that the undischarged portion of the robbery prison term should be added to the 2001 sentence, minus the two years served by Petitioner between his second arrest and second sentencing.

Petitioner appealed his conviction to the Appellate Division, First Department, which affirmed in October 2004. The Court of Appeals denied leave to appeal on December 27, 2004. Petitioner did not petition for certiorari to the U.S. Supreme Court, and the ninety-day period in which he was entitled to do so expired on March 28, 2005. The following day, therefore, the one-year statute of limitations for filing a habeas petition began to run. See 28 U . S.C. § 2244(d)(1).

Between March 28, 2005 and the filing in 2008 of his habeas petition, Petitioner filed a number of state post-conviction motions.  His first filing was an Article 78 Proceeding in New York State Supreme Court claiming that DOCS’s determination that the 1988 and 2001 sentences ran consecutively was contrary to law.  Petitioner additionally filed a motion under New York Criminal Procedure Law § 440.10 to vacate his conviction, and he filed two motions under § 440.20 to set aside his sentence.

Petitioner’s 2008 habeas corpus petition alleged that he had received ineffective assistance of counsel, and that the evidence supporting his conviction was tainted by various alleged violations of Petitioner’s Fourth and Fifth Amendment rights. The habeas petition did not mention the DOCS sentencing calculation that was the subject of the earlier Article 78 petition.

Following the filing of the petition for habeas corpus, on April 20, 2009, the district court (Hellerstein, J.) directed Respondent to file an answer. On July 16, 2009, Respondent filed a motion under Fed.R.Civ.P. 12(b)(6) to dismiss the petition as time-barred under 28 U.S.C. § 2244(d)(1). Petitioner, proceeding pro se, filed his opposition to the motion to dismiss on or about October 26, 2009. The district court granted the motion to dismiss the petition as time-barred on March 19, 2010, and denied a certificate of appealability.

Legal Analysis: The legal question on appeal is straightforward. Under the Anti–Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Petitioner was required here to file his petition for habeas corpus within one year of the expiration of the time for seeking direct review of the state court judgment at issue. See 28 U.S.C. § 2244(d)(1)(A). As set out above, Petitioner filed his habeas petition three years after that period ended in March 2005. The one-year limitations period, however, is tolled during the pendency of certain post-conviction proceedings in state court. 28 U.S.C. § 2244(d)(2).

Of the five motions filed in state court by Petitioner between 2005 and 2008, Respondent agrees that the § 440.10 motion and the two § 440.20 motions tolled the limitations period. Petitioner contends that the Article 78 petition, and the motion to renew that petition, tolled the period as well. If Petitioner is correct, then it is undisputed that his habeas petition would be timely filed. The district court, however, concluded that the Article 78 filings did not satisfy the requirements of § 2244(d)(2), and held that the habeas petition was therefore time-barred.

Section 2244(d)(2)  limits tolling to those applications for post-conviction or other collateral review that are made “with respect to the pertinent judgment”—here, the 2001 conviction and sentence. The applications at issue in this appeal were directed neither to the 2001 conviction nor to the sentence imposed thereon; they concerned only a post-conviction administrative determination that the 2001 sentence ran consecutively (rather than concurrently) to an earlier undischarged prison term. We hold, therefore, that those applications did not toll the statute of limitations, and affirm the judgment of the district court.

The Article 78 petition in this case was not made “with respect to the pertinent judgment.” Indeed, Petitioner did not challenge any aspect of his 2001 conviction or sentence. Rather, he argued that DOCS, the New York agency charged with administering the prison system, wrongly determined that his unchallenged 2001 sentence should run consecutively, rather than concurrently, to a previous unchallenged sentence imposed pursuant to a separate conviction for robbery.

Petitioner argues that the Supreme Court’s recent decision in Wall v. Kholi, ––– U.S. ––––, 131 S.Ct. 1278, 179 L.Ed.2d 252 (2011), suggests that his Article 78 petition was nevertheless made with respect to the pertinent judgment for tolling purposes. We disagree. Properly read, Wall in fact demonstrates that the Article 78 petition at issue here did not toll the AEDPA limitations period.

The Wall Court’s treatment of “review” in § 2244(d)(2), moreover, makes clear that the Article 78 petition here did not satisfy the requirements for tolling. In the Court’s words, “to trigger the tolling provision, a ‘collateral’ proceeding must … involve a form of ‘review.’ “ 131 S.Ct. at 1285. Several federal circuit courts had concluded, prior to Wall, that collateral review denotes a challenge to the lawfulness of a conviction or sentence. The Court, however, said that “review” constitutes an “act of inspecting or examining” or a “judicial reexamination.” Webster’s [Third New International Dictionary] 1944 [ (1993) ]; see also Black’s [Law Dictionary] at 1434 [ (9th ed.2009) ] (“[c]onsideration, inspection, or reexamination of a subject or thing”); 13 O[xford] E[nglish] D [ictionary] 831 [ (2d ed.1989) ] (“[t]o submit (a decree, act, etc.) to examination or revision”). We thus agree with the First Circuit that “ ‘review’ commonly denotes ‘a looking over or examination with a view to amendment or improvement.’ “[Kholi v. Wall, 582 F.3d 147, 153 (1st Cir.2009) ] (quoting Webster’s 1944 (2002)). 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.

Interpreting § 2244(d)(2), by its plain language, to toll the limitations period only for those applications that seek review of part or all of the pertinent judgment tracks the statutory structure of the AEDPA statute of limitations. AEDPA was enacted in part “to further the principles of comity, finality, and federalism” by “limit[ing] the scope of federal intrusion into state criminal adjudications and … safeguard[ing] the States’ interest in the integrity of their criminal and collateral proceedings.

One important element in its scheme is the strict one-year statute of limitations for habeas claims, § 2244(d)(1). See Duncan v. Walker, 533 U.S. 167, 179, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001). The tolling provision, § 2244(d)(2), is equally important. It stops the limitations clock, but only when a petitioner waits to bring a habeas challenge in federal court because he or she is instead bringing that challenge in state collateral review proceedings.

Sections 2244(d)(1) and (2), by their terms, balance several significant, yet potentially conflicting state interests. These interests include respecting the finality of state court judgments while permitting the exhaustion of state remedies for (putatively) improper judgments, Duncan, 533 U.S. at 178–180; and “provid[ing] both litigants and States with an opportunity to resolve objections at the state level, potentially obviating the need for a litigant to resort to federal court.

Interpreting § 2244(d)(2) to reach applications for relief that do not bear directly on the pertinent judgment would impede finality while doing little to serve either a state’s interest in exhaustion of remedies or its interest in resolving objections to the judgment at the state level rather than in federal habeas proceedings.

Here, for example, none of the grounds asserted by Petitioner for habeas relief related to his Article 78 claim that DOCS improperly failed to run his robbery and murder sentences concurrently.

Congress drafted AEDPA’s tolling provision as a carefully delineated exception to a demanding statute of limitations. This exception tolls the limitations period only during the adjudication of properly filed applications for collateral review of the pertinent judgment at issue. Petitioner has provided no convincing reason why this exception applies to the Article 78 filings in this case. For the foregoing reasons, we AFFIRM the judgment of the district court.

People v. Furey 2011 NY SLip Op 09000

Decided New York Court of Appeals December 15, 2011

See also Dismissing a Prospective Juror and

Limiting Time For Jury Selection May Be Reversible Error and

Judge’s Duty To Ask Follow Up Questions During Jury Selection

Issue: Whether a prospective juror that knew several witnesses could be excluded for cause even though the prospective juror stated that she could be fair and give the testimony of the people she knew no greater weight than any other witness.

Holding: County Court abused its discretion as a matter of law when it denied defendant’s for-cause challenge to a prospective juror who had personal and professional relationships with several of the witnesses expected to testify at defendant’s trial.

Facts: Furey was charged with committing burglary, kidnapping and other offenses.     The wife of a captain on the investigating police force reported to County Court for jury duty and was picked to be on the panel of prospective jurors in this case.

During voir dire, Mrs. Comerford (Captain Comerford’s wife) was interviewed as a prospective juror. She acknowledged being familiar with some of the individuals who were listed as possible prosecution witnesses since they worked with her husband in the Oswego Police Department. With regard to two specific police witnesses, Mrs. Comerford informed the court that she knew them both professionally and personally.  County Court inquired whether Mrs. Comerford could consider the two officers’ “testimony in the same fashion and in the same light as any other witness or would you give their testimony greater or lesser consideration or subject their testimony to different tests of credibility because you know those witnesses?” She replied “I believe I can be fair” and agreed that she “would look at their testimony in the same fashion.”  In total, Mrs. Comerford was acquainted with eight of the 14 witnesses identified by the People.

The defense moved to dismiss Mrs. Comerford for cause. The People objected, relying on her statements that she would not give preferential treatment to the testimony of the witnesses she knew. County Court denied the for-cause challenge, explaining that Mrs. Comerford “indicated that she knows nothing about the facts and circumstances of this case and through her husband she knows who many of the People’s witnesses are potentially and she would treat them the same as any other witnesses.” Defendant then used a peremptory challenge to remove Mrs. Comerford from the panel and subsequently exhausted his allotment of peremptories.

Defendant was convicted of second-degree kidnapping, second-degree burglary and other offenses. He was sentenced to an aggregate term of 5½ years imprisonment and five years of postrelease supervision.

Legal Analysis: A prospective juror may be challenged for cause on several grounds, one of which is a preexisting relationship with a potential witness that “is likely to preclude [the prospective juror] from rendering an impartial verdict”. This is referred to colloquially as an “implied bias” and requires automatic exclusion from jury service regardless of whether the prospective juror declares that the relationship will not affect her ability to be fair and impartial.

Such bias, whether acknowledged by the declarant or not, cannot be cured with an expurgatory oath. “[T]he risk of prejudice arising out of the close relationship . . . [is] so great that recital of an oath of impartiality could not convincingly dispel the taint” (Branch, 46 NY2d at 651) and create the perception that the accused might not receive a fair trial before an impartial finder of fact. For this reason, we have advised trial courts to exercise caution in these situations by leaning toward “disqualifying a prospective juror of dubious impartiality”

The frequency of contact and nature of the parties’ relationship are to be considered in determining whether disqualification is necessary.

We conclude that Mrs. Comerford’s familiarity with numerous witnesses satisfied the implied bias standard under CPL 270.20 (1) (c), necessitating her removal for cause. Mrs. Comerford forthrightly disclosed that she knew eight of the witnesses  who were to testify at trial — more than half of the People’s potential witnesses — and had frequent professional and social relationships with at least two of the police officers. Although Mrs. Comerford offered unequivocal assurances of impartiality, those declarations were ineffective in a case like this because there was a considerable risk that she could unwittingly give undue credence to the witnesses she knew and her service would give rise to the perception that defendant did not receive a fair trial. It was therefore an abuse of discretion as a matter of law to deny defendant’s challenge for cause.

Accordingly, the order of the Appellate Division should be reversed and a new trial ordered.

Gonzalez v. Thaler 132 S.Ct. 641

Decided by U. S. Supreme Court January 10, 2012

Click here to see  Text of Habeas Statutes for State and Federal Prisoners

Click here to see Tolling Habeas Corpus Statute of Limitations

Issues:(1) Whether a Judge’s statement of a constitutional issue on the Certificate of Appealability (COA) is a jurisdictional requirement; (2) When does a State judgment become final for purposes of the statute of limitations under AEDPA.

Holding: This case interprets two provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The first, 28 U.S.C. § 2253(c), provides that a habeas petitioner must obtain a certificate of appealability (COA) to appeal a federal district court’s final order in a habeas proceeding. § 2253(c)(1). The COA may issue only if the petitioner has made a “substantial showing of the denial of a constitutional right,” § 2253(c)(2), and “shall indicate which specific issue” satisfies that showing. § 2253(c)(3). We hold that § 2253(c)(3) is not a jurisdictional requirement. Accordingly, a judge’s failure to “indicate” the requisite constitutional issue in a COA does not deprive a court of appeals of subject-matter jurisdiction to adjudicate the habeas petitioner’s appeal.

The second provision, 28 U.S.C. § 2244(d)(1)(A), establishes a 1–year limitations period for state prisoners to file federal habeas petitions, running from “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” We hold that, for a state prisoner who does not seek review in a State’s highest court, the judgment becomes “final” on the date that the time for seeking such review expires.

Facts: After the intermediate state appellate court affirmed his state-court conviction, petitionerGonzalez allowed his time for seeking discretionary review with the State’s highest court for criminal appeals to expire. Roughly six weeks later, the intermediate state appellate court issued its mandate. When Gonzalez subsequently sought federal habeas relief, the District Court dismissed Gonzalez’s petition as time barred by the 1–year statute of limitations in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).

Under AEDPA, a habeas petitioner must obtain a certificate of appealability (COA) to appeal a district court’s final order in a habeas proceeding. 28 U.S.C. § 2253(c)(1). The COA may issue only if the petitioner has made a “substantial showing of the denial of a constitutional right,” § 2253(c)(2), and “shall indicate which specific issue” satisfies that showing, § 2253(c)(3). A Fifth Circuit judge granted Gonzalez a COA on the question whether his petition was timely. The issued COA, however, failed to “indicate” a constitutional issue.

The Fifth Circuit affirmed, holding that Gonzalez’s petition was untimely because the limitations period begins to run for petitioners who fail to appeal to a State’s highest court when the time for seeking further direct review in the state court expires. The Fifth Circuit did not mention, and the State did not raise, the § 2253(c)(3) defect. When Gonzalezpetitioned this Court for review, the State argued for the first time that the Fifth Circuit lacked jurisdiction to adjudicate Gonzalez’s appeal based on the § 2253(c)(3) defect.

Legal Analysis: Section 2253, as amended by AEDPA, governs appeals in habeas corpus proceedings. The first subsection, § 2253(a), is a general grant of jurisdiction, providing that district courts’ final orders in habeas proceedings “shall be subject to review, on appeal, by the court of appeals.” 28 U.S.C. § 2253(a). The second, § 2253(b), limits jurisdiction over a particular type of final order. See § 2253(b) (“There shall be no right of appeal from a final order in a proceeding to test the validity of a warrant [of] remov[al] …”). This case concerns the third, § 2253(c), which provides:

(1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals

(2) A certificate of appealability may issue under paragraph (1) only if the applicant has made a substantial showing of the denial of a constitutional right.

(3) The certificate of appealability under paragraph (1) shall indicate which specific issue or issues satisfy the showing required by paragraph (2).

In this case, the Court of Appeals judge granted a COA that identified a debatable procedural ruling, but did not “indicate” the issue on which Gonzalez had made a substantial showing of the denial of a constitutional right, as required by § 2253(c)(3). The question before us is whether that defect deprived the Court of Appeals of the power to adjudicate Gonzalez’sappeal. We hold that it did not.

A rule is jurisdictional “[i]f the Legislature clearly states that a threshold limitation on a statute’s scope shall count as jurisdictional.  But if “Congress does not rank a statutory limitation on coverage as jurisdictional, courts should treat the restriction as nonjurisdictional.  That*649 clear-statement principle makes particular sense in this statute, as we consider—against the backdrop of § 2253(a)’s clear jurisdictional grant to the courts of appeals and § 2253(b)’s clear limit on that grant—the extent to which Congress intended the COA process outlined in § 2253(c) to further limit the courts of appeals’ jurisdiction over habeas appeals.

 the only “clear” jurisdictional language in § 2253(c) appears in § 2253(c)(1). 2253(c)(1)’s plain terms—“Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals”—establish that “until a COA has been issued federal courts of appeals lack jurisdiction to rule on the merits of appeals from habeas petitioners.  §2253(c)(1) is therefore jurisdictional.

§ 2253(c)(2) is nonjurisdictional.⁴ That is for good reason.Section 2253(c)(2) speaks only to when a COA may issue—upon “a substantial showing of the denial of a constitutional right.” It does not contain § 2253(c)(1)’s jurisdictional terms.

W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally …”). And it would be passing strange if, after a COA has issued, each court of appeals adjudicating an appeal were dutybound to revisit the threshold showing and gauge its “substantial[ity]” to verify its jurisdiction. That inquiry would be largely duplicative of the merits question before the court.

It follows that § 2253(c)(3) is nonjurisdictional as well. Like § 2253(c)(2), it too reflects a threshold condition for the issuance of a COA—the COA’s indication of “which specific issue or issues satisfy the showing required by paragraph (2).” It too “does not speak in jurisdictional terms or refer in any way to the jurisdiction of the [appeals] courts.

The unambiguous jurisdictional terms of §§ 2253(a), (b), and (c)(1) show that Congress would have spoken in clearer terms if it intended § 2253(c)(3) to have similar jurisdictional force. Instead, the contrast underscores that the failure to obtain a COA is jurisdictional, while a COA’s failure to indicate an issue is not. A defective COA is not equivalent to the lack of any COA.

Congress placed the power to issue COAs in the hands of a “circuit justice or judge.  It would seem somewhat counterintuitive to render a panel of court of appeals judges powerless to act on appeals based on COAs that Congress specifically empowered one court of appeals judge to grant.

THE STATUTE OF LIMITATIONS FOR HABEAS CORPUS PETITIONS UNDER AEDPA

Title 28 U.S.C. § 2244(d)(1) provides:

A 1–year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of—

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;

(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;

(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.”

This case concerns the first of those dates: “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” § 2244(d)(1)(A). The question before us is when the judgment becomes “final” if a petitioner does not appeal to a State’s highest court.

In Clay v. United States, 537 U.S. 522, 123 S.Ct. 1072, 155 L.Ed.2d 88 (2003), we addressed AEDPA’s statute of limitations for federal prisoners seeking postconviction relief. See § 2255(f)(1)(2006 ed., Supp. III) (beginning 1–year period of limitations from “the date on which the judgment of conviction becomes final”). We held that the federal judgment becomes final “when this Court affirms a conviction on the merits on direct review or denies a petition for a writ of certiorari,” or, if a petitioner does not seek certiorari, “when the time for filing a certiorari petition expires.” Id., at 527, 123 S.Ct. 1072. In so holding, we rejected the argument that, if a petitioner declines to seek certiorari, the limitations period “starts to run on the date the court of appeals issues its mandate.” Id., at 529, 123 S.Ct. 1072.

THE RULE: WHEN DOES DIRECT REVIEW OF A STATE CASE EXPIRE 

The text of § 2244(d)(1)(A), which marks finality as of “the conclusion of direct review or the expiration of the time for seeking such review,” consists of two prongs. Each prong—the “conclusion of direct review” and the “expiration of the time for seeking such review”—relates to a distinct category of petitioners. For petitioners who pursue direct review all the way to this Court, the judgment becomes final at the “conclusion of direct review”—when this Court affirms a conviction on the merits or denies a petition for certiorari.

For all other petitioners, the judgment becomes final at the “expiration of the time for seeking such review”—when the time for pursuing *654 direct review in this Court, or in state court, expires. We thus agree with the Court of Appeals that because Gonzalez did not appeal to the State’s highest court, his judgment became final when his time for seeking review with the State’s highest court expired.