In Jimenez v. Quarterman, 07-6984, the Supreme Court of the United States interpreted the AEDPA statute of limitations provision under 28 U.S.C. 2244(d)(1) which provides that the one year limitation period runs "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." In this case, Jimenez's conviction became final on October 11, 1996, but a state appellate court determined on post conviction that he had been denied his right to appeal, so he was granted the right to file an out of time appeal. The appeal was denied and his time for seeking cert expired on January 6, 2004. Jimenez filed a second state post conviction application on December 6, 2004, which was denied on June 29, 2005. His federal habeas petition was filed on July 19, 2005. The district court dismissed his petition as time barred. Jimenez argued that the time for filing his petition did not begin to run until the expiration of the time for seeking cert on his delayed appeal - January 6, 2004.
The Court unanimously agreed. Justice Thomas wrote the opinion, holding that once a state court grants a defendant the right to a delayed appeal during state collateral review but before federal habeas, the original conviction is no longer final and the state court has essentially restored the pendency of the direct appeal. Therefore, Jimenez's conviction did not become final for purposes of 2244(d)(1) until January 6, 2004, when time for seeking cert on the appeal had expired. Based on the plain language of the statute, direct review cannot conclude until the availability of direct appeal to the state court is exhausted. Until that time there is no presumption of finality and legality tied to the conviction and sentence. While the state argued its reading of the statute was in keeping with Congress's desire as expressed in AEDPA to advance the finality of convictions and put review on a tight timeline, the Court's final word was that the statute means what it says.
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This S.Ct. case is consistent with and may well be cited in conjunction with the recent State v. Silsby, 119 Ohio St.3d 370 (2008), in which the OHSCt confirmed that a granted delayed appeal is both substantively and procedurally identical to a timely filed direct appeal.
"App.R. 5(F) provides that if a motion for delayed appeal is sustained, “the further procedure shall be the same as for appeals as of right in criminal cases * * *.” Once granted, a delayed appeal proceeds as any timely appeal would proceed, and the assertion of error is virtually the same as it would have been but for the delayed filing. See, e.g., State v. Haynes (1996), 111 Ohio App.3d 244, 245, 675 N.E.2d 1332. Substantively and procedurally, there is no discernable difference between a direct appeal and a delayed appeal. They differ only in the timeliness of the filing."
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