Amicus Curiae Brief — Patricia Guerrero, Chief Justice, Supreme Court of California, et al., Petitioners v. Stephen Moreland Redd

No. 24-948

Supreme Court of the United States

──────────────────────────

PATRICIA GUERRERO, CHIEF JUSTICE OF CALIFORNIA,

AND KIMBERLY MENNINGER, JUDGE OF THE SUPERIOR

COURT OF CALIFORNIA, COUNTY OF ORANGE

Petitioners,

v.

STEPHEN MORELAND REDD,

Respondent.

──────────────────────────

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

──────────────────────────

BRIEF OF ALABAMA AND 17 OTHER STATES AS

AMICI CURIAE IN SUPPORT OF PETITIONERS

──────────────────────────

Steve Marshall

Attorney General

STATE OF ALABAMA

Office of the Att’y Gen.

501 Washington Ave.

Montgomery, AL 36130

(334) 242-7300

Edmund.LaCour@

AlabamaAG.gov

Edmund G. LaCour Jr.

Solicitor General

Counsel of Record

Robert M. Overing

Deputy Solicitor General

Dylan Mauldin

Ass’t Solicitor General

Counsel for Amicus Alabama

(additional counsel on signature page)

April 2025

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES....................................... ii

INTEREST OF AMICI CURIAE ................................1

INTRODUCTION AND SUMMARY

OF THE ARGUMENT ................................................3

ARGUMENT ...............................................................4

I. The Court Should Grant Certiorari and

Vacate the Ninth Circuit’s Decision. ..................4

A. Munsingwear vacatur is the normal rule

in cases mooted by happenstance..................4

B. Equity favors vacatur. ...................................6

C. The Ninth Circuit’s novel due-process

right to speedy appointments in state

postconviction cases deserves full review. .. 17

CONCLUSION .......................................................... 19

ii

TABLE OF AUTHORITIES

Cases

A. L. Mechling Barge Lines, Inc. v. United States,

368 U.S. 324 (1961)..................................................6

Acheson Hotels, LLC v. Laufer,

601 U.S. 1 (2023).......................................... 5, 10, 16

Ala. State Conf. of NAACP v. Alabama,

806 F. App’x 975 (11th Cir. 2020) ......................... 19

Ala. State Conf. of NAACP v. Alabama,

949 F.3d 647 (11th Cir. 2020), cert. granted,

judgment vacated, 141 S. Ct. 2618 (2021) ........ 9, 19

Arizonans for Off. Eng. v. Arizona,

520 U.S. 43 (1997).............................. 4, 9, 11, 14, 15

Atkins v. State Bd. of Ed.,

418 F.2d 874 (4th Cir. 1969).................................. 12

Azar v. Garza,

584 U.S. 726 (2018)................................................ 12

Barker v. Wingo,

407 U.S. 514 (1972)................................................ 17

Camreta v. Greene,

563 U.S. 692 (2011)................................. 1, 2, 4, 5, 7,

................................................................... 8, 11, 13, 14

Chafin v. Chafin,

568 U.S. 165 (2013)................................................ 15

Coleman v. Thompson,

501 U.S. 722 (1991)................................................ 17

Culley v. Marshall,

601 U.S. 377 (2024)................................................ 18

ii

DeFunis v. Odegaard,

416 U.S. 312 (1974).............................................. 8, 9

Greene v. Camreta,

588 F.3d 1011 (9th Cir. 2009)..................................8

Hartford Cas. Ins. Co. v. Crum & Forster Specialty

Ins. Co.,

828 F.3d 1331 (11th Cir. 2016)................................8

Hirschfeld v. ATF,

14 F.4th 322 (4th Cir. 2021) ........................ 8, 10, 13

Huffman v. Pursue, Ltd.,

420 U.S. 592 (1975)................................................ 13

Izumi Seimitsu Kogyo Kabushiki Kaisha v. U.S.

Philips Corp.,

510 U.S. 27 (1993).................................................. 10

Los Angeles Cnty. v. Davis,

440 U.S. 625 (1979)..................................................9

MLB Props., Inc. v. Pac. Trading Cards, Inc.,

150 F.3d 149 (2d Cir. 1998) ................................... 13

Martinez v. Ryan,

566 U.S. 1 (2012).............................................. 17, 18

Mathews v. Eldridge,

424 U.S. 319 (1976)................................................ 17

Motta v. Dist. Dir. of INS,

61 F.3d 117 (1st Cir. 1995) ............................ 6, 8, 13

Murray v. Giarratano,

492 U.S. 1 (1989).................................................... 17

Nat’l Union Fire Ins. Co. v. Seafirst Corp.,

891 F.2d 762 (9th Cir. 1989).................................. 12

iii

O’Shea v. Littleton,

414 U.S. 488 (1974)............................................ 3, 15

Patterson v. New York,

432 U.S. 197 (1977)................................................ 14

Payne v. Biden,

144 S. Ct. 480 (2023)................................................5

Raines v. Byrd,

521 U.S. 811 (1997)..................................................9

Redd v. Chappell,

574 U.S. 1041 (2014)........................................ 12, 18

Rizzo v. Goode,

423 U.S. 362 (1976).................................... 13, 15, 16

Socialist Labor Party v. Gilligan,

406 U.S. 583 (1972)................................................ 16

Speech First, Inc. v. Sands,

144 S. Ct. 675 (2024)................................................5

Stefanelli v. Minard,

342 U.S. 117 (1951)................................................ 15

Turtle Mountain Band of Chippewa Indians v. N.D.

Legislative Assembly,

144 S. Ct. 2709 (2024)..............................................5

U.S. Bancorp Mortg. Co. v. Bonner Mall P’ship,

513 U.S. 18 (1994)........................................... 2, 3, 5,

.............................................................. 7, 10, 11, 15

United States v. Munsingwear, Inc.,

340 U.S. 36 (1950)...................................... 1-7, 9-12,

.................................................................. 14, 16, 19

iv

Rules

9th Cir. R. 36-2 ............................................................7

11th Cir. R. 36 I.O.P. 6 ................................................7

Other Authorities

Charles A. Wright et al., Federal Practice &

Procedure § 3533.10.3 (3d ed. Apr. 2025

Update) ............................................................... 6, 12

Admin. Off. of the U.S. Courts, Table B-12 (Jan.

2025), uscourts.gov/sites/default/files/202501/jb_b12_0930.2024.pdf .........................................7

Rachel Brown et al., Is Unpublished Unequal?

An Empirical Examination Of The 87%

Nonpublication Rate In Federal Appeals,

107 Cornell L. Rev. 1 (2022) ....................................7

1

INTEREST OF AMICI CURIAE

The States of Alabama, Alaska, Arkansas, Florida,

Indiana, Louisiana, Mississippi, Missouri, Montana,

Nebraska, Oklahoma, Pennsylvania, South Carolina,

South Dakota, Tennessee, Texas, Utah, and West

Virginia respectfully submit this brief as amici curiae

in support of petitioners. Amici States and their officers are repeat players in the federal courts. It is not

unusual for an adverse party’s personal stake in a

case to become moot while litigation is pending. When

that happens, the case is over, but judgments already

rendered can have significant prospective effects—undermining the enforcement of state laws, restraining

state officers, and precluding relitigation. Vacatur is

often vital “to prevent an unreviewable decision ‘from

spawning any legal consequences.’” Camreta v.

Greene, 563 U.S. 692, 713 (2011).

Amici States have strong interests in preserving

Munsingwear as “the normal rule,” id., especially in

cases like this one. Before declining to vacate, the

panel acknowledged “considerable” and “significant”

“federalism and comity concerns.” App.64a, 74a. Its

ruling was a “decisional framework” for hundreds of

prisoner lawsuits against petitioners alone. App.7a.

The panel thought that its opinion’s value for future

litigation was a reason to keep it. But that fact just

heightens the unfairness to petitioners, who had no

chance to challenge it.

Many Amici States have found themselves in the

same position, forced to ask this Court to intervene in

a moot case when lower courts have improperly let unreviewable decisions stand. Though the Court has

made clear on multiple occasions that “‘[a] party who

2

seeks review of the merits of an adverse ruling, but is

frustrated by the vagaries of circumstance … ought

not in fairness be forced to acquiesce in’ that ruling.”

Camreta, 563 U.S. at 712 (quoting U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18, 25

(1994)), many courts of appeals continue to force litigants to spend their limited resources bringing vacatur requests to this Court. For the sake of fairness,

uniformity, and efficiency, the Court should vacate

the decision below and reaffirm in a precedential decision that “the normal rule” for this Court is the normal rule for lower courts too.

3

INTRODUCTION AND SUMMARY

OF THE ARGUMENT

To reach the merits, the panel below first had to

confront O’Shea v. Littleton, an abstention doctrine

that bars “monitoring” the operation of state courts as

“antipathetic to established principles of comity.” 414

U.S. 488, 501 (1974). In doing so, the panel assured

that it was “mindful” of the “delicate balance” of powers as well as “federalism and comity concerns [that]

are surely significant.” App.64a, 67a. With “trepidation,” the panel declined to abstain. App.74a. Relief for

Stephen Redd would be “less intrusive,” it held, than

other forms of intrusion like an injunction or classwide relief. App.74a-75a & n.10. After all, the panel

was “dealing with only his individual request for declaratory relief rather than any systemic remedy.”

App.68a.

But after Redd passed away, the court became

much less “mindful.” And it forgot that this case was

just about “his individual … rights.” App.68a. Asked

to vacate its judgment, the court found exactly what it

foreswore—an “occasion … to further involve itself”

(id.) in a State’s criminal justice system by cementing

its opinion as the “decisional framework for district

courts deciding [hundreds of] cases.” App.7a.

This Court should swiftly rectify the refusal to vacate. When fate moots a case “on its way here,” the

“established practice” is vacatur. United States v.

Munsingwear, Inc., 340 U.S. 36, 39 (1950). Vacatur is

not only “fair[] to the parties” but also “best” for the

public “when the demands of orderly procedure cannot

be honored.” U.S. Bancorp Mortg. Co. v. Bonner Mall

P’ship, 513 U.S. 18, 27 (1994) (cleaned up). But in the

Ninth Circuit, a panel can deviate from this best

4

practice if it deems its own opinion too “valuable” to

lose. App.7a. That’s backward. The more “valuable”

the decision is for “other [plaintiffs] like Redd,” id., the

more unfair it is to force petitioners to acquiesce in it

without a full appellate process.

The Ninth Circuit’s approach to Munsingwear

should be expressly rejected, and this case illustrates

why. In its equitable discretion, the court elevated the

interests of hypothetical plaintiffs above those of

actual parties. The court discounted the prejudice

factor, assuring that its ruling was “limited” while

touting a “framework” that would “undoubtedly”

affect future lawsuits against petitioners. App.7a, 9a

n.3. And the court ignored its own “federalism

concern[s],” which should have “le[d] [it] to conclude

that vacatur … is the equitable solution.” Arizonans

for Off. Eng. v. Arizona, 520 U.S. 43, 75 (1997).

Even if this were not a paradigm case for applying

“the normal rule” (and it is), Camreta v. Greene, 563

U.S. 692, 713 (2011), the Ninth Circuit abused its

equitable discretion. The Court should grant the petition and expunge the unreviewed and unreviewable

judgment below. In doing so, it should issue an opinion reaffirming that vacatur is required when happenstance prevents review of a lower court’s decision.

ARGUMENT

I. The Court Should Grant Certiorari and

Vacate the Ninth Circuit’s Decision.

A. Munsingwear vacatur is the normal rule

in cases mooted by happenstance.

When a case becomes moot “on its way” to this

Court, the “established practice of the Court … is to

reverse or vacate the judgment below and remand

5

with a direction to dismiss.” United States v.

Munsingwear, Inc., 340 U.S. 36, 39 (1950); see, e.g.,

Turtle Mountain Band of Chippewa Indians v. N.D.

Legislative Assembly, 144 S. Ct. 2709 (2024); Speech

First, Inc. v. Sands, 144 S. Ct. 675 (2024); Payne v.

Biden, 144 S. Ct. 480 (2023); Acheson Hotels, LLC v.

Laufer, 601 U.S. 1, 22 (2023). “A party who seeks review of the merits of an adverse ruling, but is frustrated by the vagaries of circumstance, ought not in

fairness be forced to acquiesce in the judgment.” U.S.

Bancorp Mortg. Co. v. Bonner Mall P’ship, 513 U.S.

18, 25 (1994). Munsingwear vacatur limits the “legal

consequences” of an “unreviewable decision” to ensure

that “no party is harmed” by a “preliminary

adjudication.” Camreta v. Greene, 563 U.S. 692, 713

(2011) (cleaned up). To that end, vacatur “rightly

‘strips the decision below of its binding effect,’ and

‘clears the path for future relitigation.’” Id. (citation

omitted). If a case becomes moot by “happenstance …,

the normal rule should apply: Vacatur[.]” Id.

Vacatur is warranted here. Because petitioners

were seeking panel and en banc rehearing when the

case became moot, they could not avail themselves of

the “primary route, by appeal as of right and

certiorari, through which parties may seek relief from

the legal consequences of judicial judgments.”

Bancorp, 513 U.S. at 27. And petitioners satisfy the

“principal condition” for vacatur: mootness arose from

“happenstance” when Redd passed away. Id. at 24-25.

It would be unfair to saddle petitioners with the

ruling’s “prospective effects,” Camreta, 563 U.S. at

714 n.11, especially because its unreviewable opinion

aimed to be a “blueprint” for “362” lawsuits, App.43a

(Bennett, J., dissenting). Betraying a “long-standing

practice,” A. L. Mechling Barge Lines, Inc. v. United

6

States, 368 U.S. 324, 330 n.11 (1961), the Ninth

Circuit abused its discretion by failing to vacate a

consequential yet only preliminary decision. See 13C

Charles A. Wright et al., Federal Practice & Procedure

§ 3533.10.3 at n.6 (3d ed. Apr. 2025 Update) (collecting

cases where the Court vacated lower-court decisions

that became moot after the decisions were issued).

Unfortunately, the decision below is part of a trend

in the courts of appeals, see Pet.17-20, which forces

parties to petition this Court for relief that was

wrongly withheld below. This exercise is gratuitous,

and it is unfaithful to decades of Munsingwear

precedent. Vacatur should be granted as a matter of

course when mootness arises by happenstance and

deprives a party of the full appellate process.

Anything else permits mischief to masquerade as

equity. The Court should grant certiorari and make

clear that what is routine in this Court should be routine in all the courts of appeals.

B. Equity favors vacatur.

This case calls for a straightforward application of

Munsingwear, which makes vacatur “the duty of the

appellate court.” 340 U.S. at 40. But even if this case

had presented “unique circumstances,” App.8a n.2,

the lower court’s balance of the equities was wrong.

The court overvalued the interests of “the legal community” at the expense of the actual litigants. App.7a.

And it neglected weighty “federalism and comity concerns,” App.64a, which should have informed both the

equities and the public interest. Especially when the

movant is “a repeat player before the courts,” equity

favors vacatur. Motta v. Dist. Dir. of INS, 61 F.3d 117,

118 (1st Cir. 1995).

7

1. Start with the Ninth Circuit’s first factor,

“valu[e] to the legal community.” App.7a. Properly understood, it is the public interest that must be

weighed. The “legal community” has no special status

in equity. And Bancorp did not say it did. See 513 U.S.

at 26-27. But even if vacatur should be sensitive to

this abridged form of the public interest, an opinion’s

value as a “decisional framework” (App.7a) should

count for very little.

For one, any published opinion has decisional

value; that’s why they’re published.1 Only a fraction

of appeals even merit a published opinion.2 So the

Ninth Circuit’s test tilts against vacatur in just those

few cases where vacatur matters most. But there’s no

room in the doctrine for that maneuver—the whole

“point of vacatur is to prevent an unreviewable

decision ‘from spawning any legal consequences.’”

Camreta, 563 U.S. at 713 (quoting Munsingwear, 340

U.S. at 41).

To claim the mantle of the public interest, the

panel needed more than an assertion of its opinion’s

precedential value. In general, any “concrete and

individualized harm” to parties will outweigh the

“diffuse and slight harm to the public interest” in

vacating precedent. Hartford Cas. Ins. Co. v. Crum &

1 See Rachel Brown et al., Is Unpublished Unequal? An Em-

pirical Examination Of The 87% Nonpublication Rate In Federal

Appeals, 107 Cornell L. Rev. 1, 39 (2022) (“[T]he data suggest

that judges … publish cases where they believe the stakes are

higher or where the legal questions seem weightier.”); accord,

e.g., 9th Cir. R. 36-2 (criteria for publication); 11th Cir. R. 36

I.O.P. 6 (“Opinions that the panel believes to have no precedential value are not published.”).

2 Admin. Off. of the U.S. Courts, Table B-12 (Jan. 2025),

uscourts.gov/sites/default/files/2025-01/jb_b12_0930.2024.pdf.

8

Forster Specialty Ins. Co., 828 F.3d 1331, 1335 (11th

Cir. 2016) (discussing Motta, 61 F.3d at 117-18).

Take Camreta, which involved another “legally

consequential decision” with “prospective effects.” 563

U.S. at 713, 714 & n.11. The Ninth Circuit had ruled

that an alleged constitutional right was not clearly

established, so the defendants had qualified

immunity. See Greene v. Camreta, 588 F.3d 1011,

1030-33 (9th Cir. 2009). That could have been the end

of it, but the panel spent the time to decide both

prongs in order to “promote[] the development of

constitutional precedent,” “clarify[] the law for the

future,” and “provide[] guidance” to both sides. Id. at

1021-22. In the panel’s view, the opinion established

“constitutional standards … of great importance.” Id.

at 1021.

“Far from counseling against vacatur,” however,

the lower court’s effort “to govern future cases …

reveal[ed] the necessity of that procedural course.” 563

U.S. at 713 (emphasis added). So too here. Whether

commendable or not, the panel’s attempt to greenlight hundreds of new lawsuits (App.7a) was only

“preliminary,” 563 U.S. at 713. The fact that its ruling

was so “legally consequential” is all the more reason

to apply “the normal rule.” Id.; see also, e.g., DeFunis

v. Odegaard, 416 U.S. 312, 316, 319-20 (1974) (vacating despite “great public interest in the continuing issues raised by this appeal”); Hirschfeld v. ATF, 14

F.4th 322, 327 (4th Cir. 2021) (vacating despite

weighty “constitutional interests”).

Vacatur does not disparage the value of judicial

work product. It is just a misfortune of circumstance

that some judgments will be undone when mootness

arises involuntarily.

9

Likewise, the concern that vacatur would “force[]

future courts to duplicate the panel’s careful efforts”

is unmoving. App.7a. Again, the point of vacatur is to

“clear[] the path for future relitigation.” Arizonans,

520 U.S. at 71 (quoting Munsingwear, 340 U.S. at 40).

The Ninth Circuit cited no authority from this Court

that permits the workload of district courts to factor

into the equities—let alone to outweigh fairness to the

losing party deprived of the full appellate process.

If district courts would literally “duplicate” the

panel’s “decisional framework,” then the cost of

vacatur is minimal. They can simply deny motions to

dismiss for the reasons stated by the panel.3 There

would be work to do only if the panel’s reasoning is not

persuasive. But in that case, it would be a lot more

efficient for “the legal community” if the unsound

judgment were vacated immediately, rather than

forcing petitioners to litigate another case to final

judgment, appeal, and then take that case en banc

and/or back to this Court.

There is a “natural urge” for finality, to be sure. Cf.

Raines v. Byrd, 521 U.S. 811, 820 (1997). But

3 As petitioners put it, a vacated opinion “does not vanish into

thin air.” Pet.28. It may remain “the most pertinent statement of

the governing law, even if … not directly binding.” Los Angeles

Cnty. v. Davis, 440 U.S. 625, 646 (1979) (Powell, J., dissenting);

see also id. at 646 n.10; DeFunis, 416 U.S. at 319-20 (vacating

despite expectation that “a subsequent case attacking [the same]

procedures” would come “with relative speed to this Court, now

that the [court below] has spoken”). Even after this Court

granted Alabama’s request to vacate as moot the Eleventh Circuit’s decision in Alabama State Conference of NAACP v. Alabama, 949 F.3d 647 (11th Cir. 2020), cert. granted, judgment vacated, 141 S. Ct. 2618 (2021), the vacated opinion has been cited

more than a dozen times, just not as binding precedent.

10

“Congress has prescribed a primary route” by which

legal disputes are settled. Bancorp, 513 U.S. at 27.

Finality is the fruit of a fair and orderly process; it is

no virtue when achieved by force or fortune.

The lower court’s argument from public interest

reflects its disagreement with the concept of Munsingwear vacatur, not its application here. But this

Court’s “Munsingwear practice is well settled,” Acheson Hotels, 601 U.S. at 5, despite occasional objections

about a ruling’s “valu[e] to the legal community,” id.

at 21 (Jackson, J., concurring in the judgment); cf.

Izumi Seimitsu Kogyo Kabushiki Kaisha v. U.S.

Philips Corp., 510 U.S. 27, 40 (1993) (Stevens, J., dissenting). Absent “unique circumstances,” which the

court below did not articulate, App.8a n.2, “[a]dherence to our custom” is what “protects the public interest,” Hirschfeld, 14 F.4th at 327.

2. Next the court deemed prejudice to petitioners

“not substantial[].” App.8a. But it’s hard to agree

when the panel simultaneously encouraged hundreds

of potential plaintiffs to sue petitioners. App.7a; see

also App.43a (Bennett, J., dissenting). Some members

of the putative class are already “ready and willing” to

bring “the same claims.” DE69:34 n.6. Surely they see

the decision as a major windfall, not a “limited” ruling

for Stephen Redd. App.8a. They got favorable precedent without the burden (or liability) of convincing the

court to take any of the unusual steps proposed in

Redd’s supplemental briefing.4

Redd’s brief had proposed substituting his daughter as

plaintiff, DE69:27-31, finding a live case based on the existence

of a putative class, id. at 31-32, remanding to let another putative class member file a new complaint, id. at 32, or remanding

without dismissing, id. at 35 n.7.

4

11

By declining to vacate because of “other capital

prisoners who, like Redd, have waited many years,”

App.7a, the panel issued a kind of class-wide relief in

a moot case without a certified class. That prejudiced

petitioners. Not only did the court force them to acquiesce in a ruling they had no chance to challenge; it did

so based on the interests of nonparties whose claims

were not before the court and were never litigated.

Bancorp, the only precedent of this Court relied

upon by the court below, did not diminish the role of

prejudice. Just the opposite: Bancorp denied vacatur

because the petitioner had “forfeited … the ordinary

processes of appeal” by settling the case. 513 U.S. at

25. There was no “fairness” problem. Id. In contrast,

vacatur is “proper” when a litigant is “pursuing his

‘right to … appeal’” “when the mooting event occur[s].”

Camreta, 563 U.S. at 712 n.10 (quoting Arizonans, 520

U.S. at 74). That’s what happened here. Petitioners

were seeking rehearing when fate, not fault, deprived

them of an orderly procedure.

The court below gave short shrift to prejudice.

First, there is simply no support in the doctrine for

ignoring the unfairness of being deprived of a “discretionary form[] of appellate review.” App.8a. The rule

applies when a case becomes moot “while on its way

here or pending our decision on the merits.” Munsingwear, 340 U.S. at 39. And that makes sense because the inequity lies in treating an “adverse decision

that would be reviewable” “as if there had been a review.” Camreta, 563 U.S. at 712 & n.10 (emphasis

added). The panel decision might have become “unreviewable” if it had survived the rest of the appellate

process; until then, it was “only preliminary.” Munsingwear, 340 U.S. at 40-41; see also Azar v. Garza,

12

584 U.S. 726, 729 (2018) (per curiam) (“[T]he fact that

the relevant claim here became moot before certiorari

does not limit this Court’s discretion.” (collecting

cases)); Pet.26-27; Wright, supra, § 3533.10.3, at n.6.5

Second, the possibility of “later … recourse,” a future appeal in a future case, App.8a, is cold comfort.

The panel drew a roadmap for plaintiffs as well as

courts. The next Redd claim will survive a motion to

dismiss. And it will succeed so long as the plaintiff can

show that some evidence has decayed since sentencing. See App.86a-87a. Petitioners may need to litigate

a case to verdict (and then lose at the panel stage) before they can challenge the panel’s rulings on

abstention, due process, and standing. Vacatur would

give them a chance as soon as the next case is filed.

Munsingwear rectifies another kind of unfairness

too, one that arises in cases against governmental entities like petitioners or Amici States. When a State

has won but the plaintiff’s claim becomes moot, a

court may permit a substitution of party or even intervention to keep the case alive, see, e.g., Nat’l Union

Fire Ins. Co. of Pittsburgh v. Seafirst Corp., 891 F.2d

762, 764 (9th Cir. 1989); Atkins v. State Bd. of Ed., 418

F.2d 874, 876 (4th Cir. 1969); Indeed, respondent tried

both tactics below. DE69:24-25, 27-31.

But generally, a State cannot play that game.

When a State loses and the plaintiff’s claim becomes

moot, the State cannot force anyone onto the other

side of the “v.” The case is over, and unless vacated,

5 Even after certiorari is granted, further review is still “dis-

cretionary” because the Court can dismiss the writ. Yet the Court

often vacates cases that become moot at the merits stage. Thus,

it cannot be right that only a party “entitled” to review is one for

whom fairness demands vacatur. See Pet.20-23.

13

the decision binds a “repeat player” who is “primarily

concerned with the precedential effect of the decision

below.” Motta, 61 F.3d at 118. Vacatur thus protects

parties for whom the stakes are great even when the

plaintiff’s personal stake becomes extinct. See, e.g.,

Camreta, 563 U.S. at 713 (granting vacatur to a prevailing party); Hirschfeld, 14 F.4th at 328 (“[W]e are

reluctant to leave a preclusive judgment standing

against a federal agency responsible for enforcing federal law while cutting off the appellate process[.]”);

MLB Props., Inc. v. Pac. Trading Cards, Inc., 150 F.3d

149, 152 (2d Cir. 1998) (vacating where “repeat

player” “had to be concerned about … future litigation”). The Ninth Circuit got the equities backward

when it treated repeat-player status as a reason not

to vacate.

3. Both the panel and the seven dissenting judges

below agreed that petitioners raised “federalism and

comity concerns [that] are surely significant.” App.27a

(Bennett, J., dissenting); App. 64a, 74a. Even if those

concerns did not warrant abstention, App.64a-75a, or

certification of the novel state-law questions to the

state supreme court, App.12a n.4, they should have

informed the decision to vacate. Federal “intrusion …

into the daily conduct of state criminal proceedings is

in sharp conflict with the principles of equitable restraint.” Rizzo v. Goode, 423 U.S. 362, 379-80 (1976)

(citing Huffman v. Pursue, Ltd., 420 U.S. 592 (1975)).

The panel’s refusal to vacate reflected not restraint

but a zeal to speed up the criminal justice system of a

separate sovereign. Due process may justify such intrusion, but equity rarely does. This too was an abuse

of discretion.

14

Arizonans for Official English is on point. There,

the Court unanimously rebuked the Ninth Circuit for

answering “[n]ovel, unsettled questions of state law”

about “a novel state Act not yet reviewed by the

State’s highest court.” 520 U.S. at 79. Those questions

should have been certified to avoid “friction-generating error” and to “help[] build a cooperative judicial

federalism.” Id. at 77, 79. In any event, the case became moot on its way here. The Court could have said

that despite the Ninth Circuit’s lack of “respect for …

States,” id. at 75, its valuable opinion could guide future litigation. Instead, the Court’s “federalism concern … le[d it] to conclude that vacatur” was the only

“equitable solution.” Id.

The case for vacatur here follows a fortiori. The

panel’s key premise was that California law guarantees counsel to be appointed “expeditiously, and so at

a time when counsel will be useful.” App.82a. But

whether that “timing requirement is a substantive element” of the statutory right, App.31a (Bennett, J.,

dissenting), is a question the state supreme court has

not answered. The panel’s choice to reach out and decide the issue without certifying, id. at 38a-41a, is

troubling on its own. To double down, refusing to vacate a novel interpretation of state law, even more so.

Worse still, the court ignored the role of federalism

in a case about state criminal justice. Munsingwear

vacatur is proper for any “consequential” decision that

affects “the conduct of public officials.” Camreta, 563

U.S. at 713. But such concerns should have been

heightened in a case about the “administration of justice,” which “is much more the business of the States

than it is of the Federal Government.” Patterson v.

New York, 432 U.S. 197, 201 (1977). In this area, a

15

court must treat the balance “between federal equitable power and State administration of its own law”

with “special delicacy.” Stefanelli v. Minard, 342 U.S.

117, 120 (1951); see also O’Shea, 414 U.S. at 499-502.

A “more cautious approach was in order.” Arizonans, 520 U.S. at 77. Yet the panel’s “trepidation” on

the merits (App.74a) gave way to audacity on the equities. After it became “impossible … to grant any effectual relief” to Redd, Chafin v. Chafin, 568 U.S. 165,

172 (2013), the court saw a chance to relieve “other

capital prisoners,” App.7a—exactly the kind of

“systemic remedy” it had disavowed in its abstention

ruling, App.68a. In doing so, the court’s ruling was

essentially “prophylactic,” announcing “procedures for

a state agency designed to minimize … misconduct”

that others might allege. Rizzo, 423 U.S. at 378. That

is “at odds” with basic tenets of equity, id., and indeed

a “dramatic overreach, the impact of which is to bind

the justices and judges of California to the views of a

federal court, not only as to the meaning of California

law but also as to the structure of the State’s judicial

system.” App.39a (Bennett, J., dissenting).

But the panel did not mention federalism, comity,

or sovereignty when explaining its refusal to vacate.

Perhaps it thought that it could not. Responding to the

dissenters, the judges opposing vacatur wrote, “Vacating a decision … based on disagreement with the merits amounts to deciding a moot case, which is constitutionally forbidden.” App.5a. But the panel did not

need to make “assumptions about the merits,” Bancorp, 513 U.S. at 27, to appreciate its own “considerable comity concerns” with the outcome. App.74a.

Whether or not Redd had a viable due-process claim,

16

federalism has equitable weight. The panel was not

“constitutionally forbidden” from considering it.6

The alternative, excluding federalism when it

plays a role in the merits, would slant the equities in

exactly those cases where federalism is most salient.

Case in point: the court below could not have found an

unmitigated public good in its “decisional framework”

if it had taken its own concerns seriously. App.7a.

Whatever virtue there was in the decision to cement

an unreviewable blueprint for hundreds of lawsuits,

the panel should have weighed its vices too, including

the intrusion on state justice systems. If it had, the

result would have been vacatur.

***

Petitioners should receive vacatur because

mootness arose by chance while the case was pending

on appeal. They do not need more. See supra §I.A. But

even those who would require more than the inherent

unfairness of an unreviewable decision can easily find

it here. Cf. Acheson Hotels, 601 U.S. at 19 (Jackson, J.

concurring). The “harm-related justification” for

vacatur was “demonstrated” by the panel opinion

itself. Id. at 20. If the Court decides that this case is

not controlled by the normal rule of Munsingwear,

then “consideration must be given to principles of

federalism, Rizzo, 423 U.S. at 379, and the Court

should vacate the judgment below.

6 Members of the Court have appealed to federalism when

applying Munsingwear in other contexts, such as the decision to

vacate the judgment of a state court of last resort. See, e.g., Socialist Labor Party v. Gilligan, 406 U.S. 583, 592 n.3 (1972)

(Douglas, J., dissenting).

17

C. The Ninth Circuit’s novel due-process

right to speedy appointments in state

postconviction cases deserves full review.

There is no constitutional right to counsel in postconviction proceedings. See Coleman v. Thompson,

501 U.S. 722, 756-57 (1991). When an inmate seeks to

use an attorney “as a sword to upset the prior determination of guilt” in those proceedings, the “fundamental fairness mandated by the Due Process Clause

does not require that the State supply a lawyer.” Murray v. Giarratano, 492 U.S. 1, 7-8 (1989) (quotations

omitted). But many States offer more than the Constitution requires. See Martinez v. Ryan, 566 U.S. 1, 1415 (2012) (collecting statutes). According to a theory

embraced for the first time below, a State cannot provide counsel in post-conviction proceedings without

satisfying significant federal due process requirements, such as timeliness.

The Ninth Circuit’s decision raises a host of complex questions, each of which could be worthy of certiorari on its own. At the threshold, the panel dismissed

fears that it was licensing courts to “audit … state

criminal proceedings,” App.65a, although it gave no

guidance as to how much delay is too much. The panel

then decided that Redd’s property interest in counsel

guarantees him a speedy appointment under the

Fourteenth Amendment. Petitioners deprived him of

that right, the panel said, because “the value of Redd’s

entitlement … ha[d] significantly diminished” over

time. See App.84a-85a. How exactly this cashes out for

prisoners across the circuit is anyone’s guess. The

panel left open whether such claims would be governed by Mathews v. Eldridge, 424 U.S. 319 (1976) or

Barker v. Wingo, 407 U.S. 514 (1972), App.85a, an

18

important question in its own right, cf. Culley v. Marshall, 601 U.S. 377 (2024).

The issues in this case are important to resolve.7

On that score, all thirteen judges below agreed. The

seven dissenters thought the ruling raised “a question

of exceptional importance” in part because it posed

“significant challenges to the already limited resources of the California judicial system.” App.20a,

22a (Bennett, J., dissenting). And although the six

concurring judges tried to downplay the import of the

case, they tipped their hand by crediting the panel’s

“valuable” “framework” for future courts and plaintiffs, for whom vacatur would be a “disservice.”

App.7a, 19a. But if it was so “valuable to the legal

community,” it would have been valuable to review

fully—en banc or in this Court. The panel’s first impression should not be set in stone because of an accident, the timing of the plaintiff’s death from natural

causes. Nor should petitioners be bound to accept the

panel’s views without a chance to challenge them.

There will be ripple effects well beyond California.

Most States offer some kind of post-conviction counsel.

If Redd becomes a trend, they could be on the hook for

more. The requirements of federal due process in this

context are novel and unexplored. Some States “appoint counsel in every first collateral proceeding,”

some “if the claims have some merit” or if the record

is “worthy of further development,” and some appoint

counsel if an evidentiary hearing is required. Martinez, 566 U.S. at 14-15. Each of these limitations

could be subject to challenge, risking “significant”

7 Indeed, Redd may have raised them because two members

of this Court thought so too. Redd v. Chappell, 574 U.S. 1041

(2014) (Sotomayor, J., respecting the denial of certiorari).

19

intrusions into a State’s sovereignty over its criminal

justice system. App.64a. The Court should “clear[] the

path for future relitigation” before this “preliminary”

ruling “spawn[s] any [worse] legal consequences.”

Munsingwear, 340 U.S. at 40.

CONCLUSION

The Court should grant certiorari and vacate the

judgment below to deprive it of precedential effect.

The problem is not limited to the Ninth Circuit, and

even courts that seem to apply the proper test, see

Pet.15-17, make Munsingwear mistakes. Just a few

years ago, the Eleventh Circuit, in an unreasoned

order, declined to vacate a decision with “immense legal consequences.” Ala. State Conf. of NAACP v. Alabama, 806 F. App’x 975-76 (11th Cir. 2020) (Branch,

J., concurring in part and dissenting in part). So Alabama, supported by twelve States, had to ask this

Court to intervene, which it did. See Alabama v. Ala.

State Conf. of NAACP, 141 S. Ct. 2618 (2021); Br. for

the State of Tex. et al. as Amici Curiae, No. 20-1047

(Apr. 5, 2021).

But it should not have required thirteen sovereigns and a cert petition to ensure that this Court’s

“normal rule” was applied in Alabama’s case. Likewise, in this case, vacatur is clearly required by this

Court’s precedent. But more clarity is apparently

needed. To that end, the Court should issue a precedential decision emphasizing again that when chance

prevents a party from obtaining further review of a

lower court decision, vacatur is the proper remedy.

Respectfully submitted,

20

Steve Marshall

Attorney General

Edmund G. LaCour Jr.

Solicitor General

Counsel of Record

Robert M. Overing

Deputy Solicitor General

Dylan Mauldin

Assistant Solicitor General

STATE OF ALABAMA

OFFICE OF THE ATTORNEY GENERAL

501 Washington Avenue

Montgomery, AL 36130

(334) 242-7300

Edmund.LaCour@

AlabamaAG.gov

APRIL 2025

21

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