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

No. 24-948

IN THE

Supreme Court of the United States

——————

PATRICIA GUERRERO, CHIEF JUSTICE OF CALIFORNIA,

ET AL.,

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 THE CONFERENCE OF CHIEF

JUSTICES AS AMICUS CURIAE IN SUPPORT OF

PETITIONERS

——————

ALEX VAN DYKE

QUINN EMANUEL URQUHART

& SULLIVAN, LLP

300 West 6th Street

Suite 2010

Austin, TX 78701

SAM HEAVENRICH

VINCE PARASCANDOLO

QUINN EMANUEL URQUHART

& SULLIVAN, LLP

295 Fifth Avenue

New York, NY 10016

CHRISTOPHER G. MICHEL

Counsel of Record

QUINN EMANUEL URQUHART

& SULLIVAN, LLP

1300 I Street NW

Suite 900

Washington, DC 20005

(202) 538-8000

christophermichel@

quinnemanuel.com

Counsel for the Amicus Curiae Conference of Chief Justices

i

TABLE OF CONTENTS

Page

Interest of Amicus Curiae ........................................ 1

Introduction and Summary of Argument ................... 2

Argument ................................................................. 3

I.

II.

The Decision Below Undermines

Federalism and Comity Principles ............... 3

A.

Abstention Principles Weighed

Against The Ninth Circuit’s

Resolution Of This Case ........................ 5

B.

The Decision Below Improperly

Expanded State Law Beyond The

Authoritative Construction Of The

State’s Highest Court ........................... 8

C.

The Ninth Circuit Applied An

Inapt Due Process Standard ............... 13

The Decision Below Will Have Serious

Negative Consequences .............................. 16

Conclusion .............................................................. 19

ii

TABLE OF AUTHORITIES

CASES

Page

Alden v. Maine,

527 U.S. 706 (1999) ............................................... 4

Animal Sci. Prods., Inc. v. Hebei

Welcome Pharm. Co.,

585 U.S. 33 (2018) ................................................. 8

Briggs v. Brown,

3 Cal. 5th 808 (2017)........................... 2, 10, 11, 13

Burt v. Titlow,

571 U.S. 12 (2013) ................................................. 4

Cleveland Bd. of Educ. v. Loudermill,

470 U.S. 532 (1985) ............................................. 14

Comm’r v. Bosch’s Est.,

387 U.S. 456 (1967) ............................................... 9

District Attorney’s Office for Third

Judicial District v. Osborne,

557 U.S. 52 (2009) ............................. 14, 15, 16, 19

FDIC v. Mallen,

486 U.S. 230 (1988) ............................................. 14

Gilbert v. Homar,

520 U.S. 924 (1997) ............................................. 14

Gregory v. Ashcroft,

501 U.S. 452 (1991) ............................................... 9

iii

Horne v. Flores,

557 U.S. 433 (2009) ............................................... 9

Huffman v. Pursue, Ltd.,

420 U.S. 592 (1975) ................................................4

Juidice v. Vail,

430 U.S. 327 (1977) ............................................... 7

Littleton v. Berbling,

468 F.2d 389 (7th Cir. 1972)..................................6

Lopardo v. Fleming Cos., Inc.,

97 F.3d 921 (7th Cir. 1996)................................... 9

In Re Lucas,

33 Cal. 4th 682 (2004)......................................... 18

Mathews v. Eldridge,

424 U.S. 319 (1976) ........................... 13, 14, 15, 19

Medina v. California,

505 U.S. 437 (1992) ........................... 13, 14, 15, 19

Meredith v. City of Winter Haven,

320 U.S. 228 (1943) ............................................... 9

Michigan v. Long,

463 U.S. 1032 (1983) ............................................. 4

Middlesex Cnty. Ethics Comm. v.

Garden State Bar Ass’n,

457 U.S. 423 (1982) ........................................... 6, 7

Montana v. Wyoming,

563 U.S. 368 (2011) ..................................... 8, 9, 13

iv

Montgomery v. Louisiana,

577 U.S. 190 (2016) ............................................... 9

In re Morgan,

50 Cal. 4th 932 (2010)..................... 2, 8, 11, 12, 13

O’Shea v. Littleton,

414 U.S. 488 (1974) ....................................... 6, 7, 8

Pennzoil Co. v. Texaco, Inc.,

481 U.S. 1 (1987) ............................................... 7, 8

People v. Wilson,

16 Cal. 5th 874 (2024)......................................... 10

Quackenbush v. Allstate Ins. Co.,

517 U.S. 706 (1996) ............................................... 5

Sallie v. Chatman,

34 F. Supp. 3d 1272 (M.D. Ga. 2014) ................. 17

Sprint Commc’ns, Inc. v. Jacobs,

571 U.S. 69 (2013) ................................................. 6

State v. Victor,

242 Neb. 306 (1993),

aff’d, 511 U.S. 1 (1994) ....................................... 17

Steffel v. Thompson,

415 U.S. 452 (1974) ............................................... 4

Town of Castle Rock v. Gonzales

545 U.S. 748 (2005) ............................................. 12

Trainor v. Hernandez,

431 U.S. 434 (1977) ............................................... 4

v

United States v. Morrison,

29 U.S. 124 (1830) ................................................. 9

Wainwright v. Goode,

464 U.S. 78 (1983) ................................................. 8

West v. AT&T Co.,

311 U.S. 223 (1940) ................................................8

Younger v. Harris,

401 U.S. 37 (1971) ..................................... 4, 5, 6, 7

STATUTES

42 U.S.C. § 1983 ................................................. 3, 7, 8

Ala. Code § 13A-5-53.1(b) .........................................17

Ariz. Rev. Stat. § 13-4041(B) ....................................17

Ark. Code § 16-91-202(a)(1)(A)(i) ........................10, 17

Cal. Gov’t Code § 68661(a) ....................................... 15

Cal. Gov’t Code § 68662 ............................. 2, 9, 10, 11

Cal. Gov’t Code § 68666(a) ....................................... 15

Cal. Gov’t Code § 68666(b) ....................................... 15

Cal. Penal Code § 1509(f) ......................... 2, 10, 11, 13

Colo. Rev. Stat. § 16-6-803.5(3)(a)

(1999) ................................................................... 12

Colo. Rev. Stat. § 16-12-205(1) ................................ 17

vi

Conn. Gen. Stat. § 51-296(a) .................................... 17

Kan. Stat. § 22-4506(d)(1) ........................................ 17

Ky. Rev. Stat. § 31.110(2)(c) .................................... 17

La. Rev. Stat. § 15:169(A) ........................................ 17

Mo. Rev. Stat. § 547.370(1) ...................................... 17

Mont. Code § 46-21-201(3)(b)(1) ........................ 11, 17

Nev. Rev. Stat. § 34.820(1)(a) ...................................17

Ohio Rev. Code § 2953.21(J)(1) .................................17

Or. Rev. Stat. § 138.590(4) ........................................17

S.C. Code § 17-26-160(B) ..........................................17

S.D. Codified Laws § 21-27-4 ....................................17

Utah Code § 78B-9-202(2)(a) ....................................17

Wyo. Stat. § 7-6-104(c)(ii) .........................................17

RULES / OTHER AUTHORITIES

234 Pa. Code Rule 904(H)(1).....................................17

Administration of Justice, Final Report

(2008), https://tinyurl.com/2d2jmu82 ..................18

Ballentine’s Law Dictionary (3d ed.

2010) .....................................................................10

Cal. Rule of Court 8.652 ............................................15

vii

Death Penalty Info Ctr., California

(2025), https://tinyurl.com/yc7dvd36...................16

Death Penalty Info. Ctr., State by State

(2025), https://tinyurl.com/338vnmkz ...........17, 18

Fla. R. Crim. P. 3.851(b)(1) .......................................17

Idaho Crim. R. 44.2(a)...............................................17

Ind. R. Crim. P. 24(H) ...............................................17

Merriam-Webster’s Collegiate

Dictionary (11th ed. 2003) ...................................10

Miss. R. App. P. 22(c)(1)(i) ........................................17

Oxford English Dictionary (2d ed. 1989) ..................10

Supreme Court Rule 37 ..............................................1

Tenn. Sup. Ct. Rule 13(i) ..........................................17

Tex. Crim. P. art. 11.071, § 2(c) ..........................11, 17

INTEREST OF AMICUS CURIAE1

Founded in 1949, the Conference of Chief Justices

(CCJ) consists of the Chief Justices or Chief Judges of

the courts of last resort in all fifty States, the District

of Columbia, the Commonwealths of Puerto Rico and

the Northern Mariana Islands, and the Territories of

American Samoa, Guam, and the Virgin Islands. CCJ’s

purpose is to provide an opportunity for those judicial

officers to discuss matters of common interest in the

operation of state courts and judicial systems.

CCJ has a strong interest in the proper resolution

of this case. CCJ is a consistent defender of federalism

principles and comity among state and federal courts.

The decision below undermines those interests by resolving an issue of state judicial administration that

should be left to state courts, interpreting state law in

conflict with the authoritative construction of the

state’s highest court, and applying a federal constitutional standard inapplicable to state courts.

This brief has been reviewed and approved by the

Amicus Committee of the Conference of Chief Justices,

chaired by the Chief Justice of Vermont, and composed

of the current or former Chief Justices of Delaware, Indiana, New Jersey, Texas, and Utah.

1

Pursuant to Supreme Court Rule 37, amicus curiae states

that no counsel for any party authored this brief in whole or in

part and no entity or person, aside from amicus curiae, its

members, or its counsel, made any monetary contribution

intended to fund the preparation or submission of this brief. All

parties received timely notice of CCJ’s intent to file this brief.

2

INTRODUCTION AND SUMMARY

OF ARGUMENT

State courts fulfill critical functions in our Nation’s

legal system, particularly in connection with criminal

justice. They oversee the vast majority of criminal

prosecutions, and subsequent appeals and requests for

post-conviction relief take up a substantial portion of

state-court dockets. Those proceedings are vital to the

criminal-justice system but also costly for all involved.

In California, as in many other states, statutes provide for state courts to appoint counsel to represent

capital inmates in state post-conviction proceedings.

Cal. Gov’t Code § 68662. Such appointments “shall be

[made] as expeditiously as possible, consistent with a

fair adjudication.” Cal. Penal Code § 1509(f). The California Supreme Court has recognized that, “[i]deally,

the appointment of habeas corpus counsel should occur

shortly after an indigent defendant’s judgment of

death.” In re Morgan, 50 Cal. 4th 932, 996 (2010). As a

practical matter, however, fiscal limitations and “a serious shortage of qualified counsel … willing to represent capital inmates in habeas corpus proceedings”

mean that it is often not possible for California courts

to appoint habeas counsel for years or even decades, if

at all. Id. at 996.

Given those practical constraints, over which the

state judiciary has no meaningful control, the California

Supreme Court has construed timing provisions in Section 1509(f) to be “merely directive” rather than mandatory. Briggs v. Brown, 3 Cal. 5th 808, 860 (2017). The

alternative, the Court has reasoned, “unduly restrict[s]

the courts’ ability to administer justice.” Id. at 854.

3

In the decision below, the Ninth Circuit adopted a

markedly different approach. In a suit brought under

42 U.S.C. § 1983 by a California capital inmate who died

from natural causes during the appeal, the Ninth Circuit construed California’s appointment-of-counsel

statute to create a property interest protected by the

federal Constitution and held that federal due-process

principles compel California state judges to appoint

capital habeas counsel “within a reasonable time” or

face liability in federal court. Pet.App.79a-82a.

This Court should vacate that troubling decision.

While amicus takes no position on vacatur-by-reasonof-mootness principles generally, vacatur is uniquely

appropriate here because the Ninth Circuit’s decision

undermines important principles of federalism and

comity, with potentially far-reaching adverse consequences for state courts. As a legal matter, the decision

improperly intrudes on state courts’ prerogatives to

manage their criminal justice systems, conflicts with a

state supreme court’s authoritative construction of

state law, and applies a due process standard designed

for federal administrative law rather than state criminal procedure. As a practical matter, the decision could

impose massive new costs on state courts without

providing any mechanism to raise the necessary funds.

Such a significant decision should not become binding

law without the possibility of further review.

ARGUMENT

I. THE DECISION BELOW UNDERMINES

FEDERALISM AND COMITY PRINCIPLES

In our system of federalism, states are “residuary

sovereigns and joint participants in the governance of

the Nation” deserving the proper “respect owed them

4

as members of the federation.” Alden v. Maine, 527

U.S. 706, 748-49 (1999) (quotation marks omitted). Federal courts thus abide by the “notion of ‘comity,’ that is,

a proper respect for state functions,” which recognizes

“that the National Government will fare best if the

States and their institutions are left free to perform

their separate functions in their separate ways.” Huffman v. Pursue, Ltd., 420 U.S. 592, 601 (1975) (quoting

Younger v. Harris, 401 U.S. 37, 44 (1971)). This Court

is thus loath to allow federal judicial interference with

state functions. Id. at 603.

That general respect for states and their institutions commands a particular “[r]espect for the independence of state courts.” Michigan v. Long, 463 U.S.

1032, 1040 (1983). State courts “‘have the solemn responsibility equally with the federal courts to safeguard

constitutional rights,’ and this Court has refused to

sanction any decision that would ‘reflect negatively

upon a state court’s ability to do so.’” Burt v. Titlow,

571 U.S. 12, 19 (2013) (brackets omitted) (quoting Trainor v. Hernandez, 431 U.S. 434, 443 (1977)). Considerations of federalism and comity are accordingly at their

apex when federal courts are confronted with requests

for equitable relief against a state judiciary. Huffman,

420 U.S. at 603-04. Such “interference … reflect[s] negatively upon the state courts’ ability to enforce constitutional principles” and should be carefully circumscribed. Id. at 602-03 (quoting Steffel v. Thompson, 415

U.S. 452, 462 (1974)).

The decision below did not afford the California judiciary that due respect. The Ninth Circuit failed to abstain from resolving a challenge to the internal administration of California’s judicial system; its conclusion

5

that California law creates a federally protected property right to the appointment of capital habeas counsel

is inconsistent with California’s controlling statutory

and decisional law; and it vastly expanded the due process standard to which state courts must adhere when

adjudicating post-conviction claims. For all those reasons, the decision below would have been a prime candidate for en banc rehearing or certiorari review on the

merits if the case had not become moot because of the

Respondent’s death during the appeal. Rather than

leave the decision on the books as a result of that happenstance, this Court should vacate the decision to allow relitigation of these significant issues in a proper

case or controversy.

A.

Abstention Principles Weighed Against The

Ninth Circuit’s Resolution Of This Case

One significant way in which federal courts show

state courts the respect that federalism demands is

through abstention doctrines. Under those doctrines,

“federal courts may decline to exercise their jurisdiction”—i.e., “abstain” from deciding a matter—when doing so “would clearly serve an important countervailing

interest.” Quackenbush v. Allstate Ins. Co., 517 U.S.

706, 716 (1996). Important countervailing interests that

warrant abstention include, for example, “regard for

federal-state relations” and “wise judicial administration.” Id. (citation omitted).

With those interests in mind, this Court in Younger

called for federal courts to abstain from deciding cases

that interfere with pending state-court criminal proceedings. 401 U.S. at 43-44. A “vital consideration” in

reaching that decision was “sensitivity to the legitimate

6

interests of both State and National Governments,” under which federal courts endeavor to safeguard federal

rights and interests “in ways that will not unduly interfere with the legitimate activities of the States.” Id. at

44.

“The policies underlying Younger are fully applicable to noncriminal judicial proceedings when important

state interests are involved.” Middlesex Cnty. Ethics

Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432

(1982). The Court has thus extended Younger to “state

civil proceedings that are akin to criminal prosecutions

or that implicate a State’s interest in enforcing the orders and judgments of its courts.” Sprint Commc’ns,

Inc. v. Jacobs, 571 U.S. 69, 72-73 (2013) (citing cases).

For example, in O’Shea v. Littleton, 414 U.S. 488

(1974), plaintiffs brought a class action lawsuit alleging

that state judges and other state officials were engaging in racially discriminatory practices. The plaintiffs

sought an injunction to, inter alia, require state officials to set bail in a more individualized manner and to

cease imposing higher sentences allegedly based on

race. Id. at 492. The court of appeals instructed the

district court to grant injunctive relief against the state

officials if the allegations were proven true. Littleton

v. Berbling, 468 F.2d 389, 414-15 (7th Cir. 1972).

This Court reversed, reasoning that the relief

sought would amount to an “ongoing federal audit of

state criminal proceedings” that “would indirectly accomplish the kind of interference that Younger … and

related cases sought to prevent.” O’Shea, 414 U.S. at

500. The Court explained that “recognition of the need

for a proper balance in the concurrent operation of fed-

7

eral and state courts counsels restraint against the issuance of injunctions against state officers engaged in

the administration of the State’s criminal laws in the

absence of a showing of irreparable injury which is

‘both great and immediate.’” Id. at 499 (quoting

Younger, 401 U.S. at 46). Finally, the Court noted its

concerns that “such a major continuing intrusion of the

equitable power of the federal courts into the daily conduct of state criminal proceedings is in sharp conflict

with the” abstention principles set forth in cases such

as Younger. Id. at 502.

Faithful application of this “strong federal policy

against federal-court interference with pending state

judicial proceedings absent extraordinary circumstances” has made federal courts especially unwilling to

meddle in the internal administration of state judicial

systems. Middlesex Cnty. Ethics Comm., 457 U.S. at

431. In Pennzoil Co. v. Texaco, Inc., 481 U.S. 1 (1987),

for instance, the Court determined that the district

court and court of appeals should have abstained from

ruling on a due process challenge to Texas post-judgment collection procedures because of “the significant

interests harmed by their unprecedented intrusion into

the [state] judicial system.” Id. at 10. For similar reasons, this Court held in Juidice v. Vail, 430 U.S. 327

(1977), that abstention was appropriate in a Section 1983 challenge to New York’s civil contempt process. Id. at 338-39.

The Court’s reasoning in Pennzoil and Juidice applies with equal if not greater force here. Respondent

brought a Section 1983 challenge to state-court judicial

procedures—the appointment of capital habeas counsel

under state law—and the remedy the Ninth Circuit afforded him represents an “unprecedented intrusion

8

into [California’s] judicial system” by federal courts.

Pennzoil, 481 U.S. at 10. Specifically, under the Ninth

Circuit’s decision, California state judges must appoint

capital habeas counsel “within a reasonable time” or

face Section 1983 suits, Pet.App.79a-82a, even though

nobody disputes that the California Legislature has allocated insufficient funds and there are not enough willing and qualified lawyers to complete the task, In re

Morgan, 50 Cal. 4th at 996-97. This Court’s abstention

doctrines, and the underlying principles of federalism

and comity that they serve, do not permit such an intrusive “ongoing federal audit of” California’s post-conviction relief proceedings. O’Shea, 414 U.S. at 500. At a

minimum, the Ninth Circuit’s imposition of such an intrusive remedy should not become binding law without

the prospect of en banc rehearing or review by this

Court—which is now foreclosed because of the case’s

mootness. Vacatur is accordingly the appropriate

course.

B.

The Decision Below Improperly Expanded

State Law Beyond The Authoritative

Construction Of The State’s Highest Court

“The highest court of each State … is ‘the final arbiter of what is state law.’” Montana v. Wyoming, 563

U.S. 368, 377 n.5 (2011) (quoting West v. AT&T Co., 311

U.S. 223, 236 (1940)). Accordingly, when applying state

law, a federal court is bound by any authoritative interpretation of the highest state court. See Animal Sci.

Prods., Inc. v. Hebei Welcome Pharm. Co., 585 U.S. 33,

44 (2018); Wainwright v. Goode, 464 U.S. 78, 84 (1983).

When addressing a question of first impression under

state law, federal courts must attempt to “ascertain[]

what the state courts may [t]hereafter determine the

9

state law to be.” Meredith v. City of Winter Haven, 320

U.S. 228, 234 (1943).

This longstanding practice is grounded in principles

of federalism and comity—in particular, the recognition

that “the State’s highest court is the best authority on

its own law.” Comm’r v. Bosch’s Est., 387 U.S. 456, 465

(1967); see also United States v. Morrison, 29 U.S. 124,

137 (1830). For that reason, “it is not [a federal court’s]

role to break new ground in state law.” Lopardo v.

Fleming Cos., Inc., 97 F.3d 921, 930 (7th Cir. 1996). Rather, the federal court must “ascertain from all the

available data what the state law is and apply it rather

than … prescribe a different rule, however superior it

may appear.” Montana, 563 U.S. at 377 n.5 (quoting

West, 311 U.S. at 237).

Under core principles of federalism, moreover, a

federal court’s interpretation of any statute should

avoid unduly “intrud[ing] on state governmental functions.” Gregory v. Ashcroft, 501 U.S. 452, 470 (1991);

see also Montgomery v. Louisiana, 577 U.S. 190, 211

(2016) (“[T]his Court is careful to … avoid intruding

more than necessary upon the States’ sovereign administration of their criminal justice systems.”). The Court

in Gregory and Montgomery articulated this rule in the

context of interpreting a federal statute, but it applies

a fortiori when construing state statutes. Cf. Horne v.

Flores, 557 U.S. 433, 471 (2009) (vacating “a statewide

injunction that intruded deeply into the State’s budgetary processes” implemented based on an “interpretation of state law”).

The Ninth Circuit’s decision runs contrary to those

fundamental tenets. Under California Government

Code § 68662, “[t]he superior court that imposed [a]

10

sentence shall offer to appoint counsel to represent a

state prisoner subject to a capital sentence for purposes

of state postconviction proceedings.” The appointment

of habeas counsel “shall be [made] as expeditiously as

possible, consistent with a fair adjudication.” Cal. Penal Code § 1509(f); see also Pet.App.29a (Bennett, J.,

dissenting from the denial of rehearing en banc) (same);

Briggs, 3 Cal. 5th at 824 (explaining that counsel for indigent capital inmates must be appointed “as soon as

possible”); People v. Wilson, 16 Cal. 5th 874, 957 (2024)

(“The representation that superior courts must order

pursuant to Government Code section 68662 … pertain[s] to capital petitions governed by section

1509 ….”). As a matter of ordinary meaning, “possible”

means “capable of being done,” Ballentine’s Law Dictionary (3d ed. 2010), “within the limits of ability, capacity, or realization,” Merriam-Webster’s Collegiate Dictionary (11th ed. 2003), or “[what] is in one’s power, that

one can do, exert, use, etc.,” Oxford English Dictionary

(2d ed. 1989). And the California statutes’ general reference to appointment “as expeditiously as possible”—

rather than within a fixed timeframe—distinguishes

California’s statutes from those of other states. See,

e.g., Ark. Code § 16-91-202(a)(1)(A)(i) (“If a capital conviction and sentence are affirmed on direct appeal, the

circuit court in which the conviction was obtained shall,

within two (2) weeks after the affirmance, conduct a

hearing and enter a written order appointing counsel to

represent the petitioner in a post-conviction proceeding.” (emphasis added)); Mont. Code § 46-21201(3)(b)(1) (“Within 75 days after a conviction for

which a death sentence was imposed … the sentencing

court shall … order the office of state public defender

to assign counsel.” (emphasis added)); Tex. Crim. P.

11

art. 11.071, § 2(c) (“At the earliest practical time, but in

no event later than 30 days, after the convicting court

makes the findings required … the convicting court

shall appoint the office of capital and forensic writs.”

(emphasis added)). The plain text of the California statutes thus does not create an expectation of the appointment of counsel by a certain date or timeframe, much

less a cognizable property interest in such appointment.

California Supreme Court decisions interpreting

the relevant statutes reinforce that conclusion. In Morgan, the California Supreme Court stated that

“[i]deally, the appointment of habeas corpus counsel

should occur shortly after an indigent defendant’s judgment of death.” 50 Cal. 4th at 996 (emphasis added).

The Court explained, however, that the “task of recruiting counsel has been made difficult” by limited fiscal resources and “a serious shortage of qualified counsel …

willing to represent capital inmates in habeas corpus

proceedings.” Id. at 996-97. The straightforward position of the California Supreme Court is thus that it is

not “possible” for California state courts to appoint habeas counsel any more expeditiously than they do. Cal.

Gov’t Code § 68662. And because “it would have been

impossible for California courts to guarantee appointment of habeas counsel within a certain time frame, the

California Supreme Court would not find that the California Legislature intended the courts to do the impossible.” Pet.App.35a (Bennett, J., dissenting from the

denial of rehearing en banc).

In Briggs, the California Supreme Court held that

even the specific time limits enumerated in California

Penal Code § 1509(f)—which set a two-year deadline

for courts to resolve capital habeas petitions—are

“merely directive” rather than mandatory. 3 Cal. 5th

12

at 860. Otherwise, the court reasoned, the statute

would “materially impair fair adjudication” and “unduly

restrict the courts’ ability to administer justice.” Id. at

854. As in Morgan, the Court recognized that “[m]uch

depends on the funding made available by the Legislature.” Id. at 861.

This Court’s decisions in analogous contexts further

suggest that California law does not create a property

interest in the appointment of capital habeas counsel

within a set amount of time. For instance, in Town of

Castle Rock v. Gonzales 545 U.S. 748 (2005), this Court

determined that a state law providing that police “shall

use every reasonable means to enforce a restraining order” did not create a property interest for due process

purposes regardless of the statute’s facially mandatory

language. Id. at 759, 763-64 (quoting Colo. Rev. Stat.

§ 16-6-803.5(3)(a) (1999)). The Court explained that the

“indeterminacy” of the statute’s terms “ is not the hallmark of a duty that is mandatory[, n]or can someone be

safely deemed ‘entitled’ to something when the identity

of the alleged entitlement is vague.” Id. at 764. So too

here. Respondent’s alleged “entitlement” to the appointment of habeas counsel “as expeditiously as possible” is far too indeterminate and vague to form the basis of his due process claim. See id. at 766 (cautioning

against lightly expanding due process principles to protect an interest that does not “resemble any traditional

conception of property”).

The Ninth Circuit failed to follow California law and

this Court’s due process jurisprudence. The panel’s

speculation that members of the California judiciary

could have altered the qualification requirements for

appointing habeas counsel or allocated internal budgetary resources differently, Pet.App.62a-63a, contradicts

13

the California Supreme Court’s repeated insistence in

Morgan that the delays in appointing capital habeas

counsel are “[d]ue to circumstances beyond our control,” 50 Cal. 4th at 940-41 & n.7. The Ninth Circuit also

did not recognize the California Supreme Court’s wellestablished principle that statutes should not be construed to “materially impair fair adjudication or unduly

restrict the courts’ ability to administer justice.”

Briggs, 3 Cal. 5th at 854. Interpreting Section 1509(f)

to require California courts to appoint habeas counsel

within specific time limits does exactly that.

In short, rather than “ascertain from all the available data what the state law is and apply it,” Montana,

563 U.S. at 377 n.5, the Ninth Circuit adopted a novel

interpretation of California law unmoored from the relevant California statutes and Supreme Court decisions.

This case is therefore a prime candidate for vacatur due

to happenstance that has prevented this Court or the

en banc Ninth Circuit from reviewing an incorrect—

and highly consequential—decision.

C.

The Ninth Circuit Applied An Inapt Due

Process Standard

This Court has applied two different tests to determine whether a particular government action comports

with the Due Process Clause. The first is set out in

Mathews v. Eldridge, 424 U.S. 319 (1976), and requires

courts to balance “the private interest that will be affected,” “the risk of an erroneous deprivation of such

interest through the [state’s] procedures,” and “the

Government’s interest.” Id. at 335. The second is set

out in Medina v. California, 505 U.S. 437 (1992), and

asks whether the challenged action “offends some prin-

14

ciple of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental,”

or “transgresses any recognized principle of fundamental fairness in operation.” Id. at 446, 448 (quotation

omitted).

Those tests apply in distinct factual scenarios. The

Mathews test is generally directed to “address[ing] due

process claims arising in the context of administrative

law.” Medina, 505 U.S. at 444. For example, in

Mathews itself the Court applied that test to determine

whether a recipient of Social Security benefits was entitled to an evidentiary hearing before the termination

of those benefits. 424 U.S. at 323-26. Since then, the

Court has applied Mathews in a variety of administrative and civil contexts. See, e.g., Cleveland Bd. of Educ.

v. Loudermill, 470 U.S. 532, 542-43 (1985) (discharge of

government employee); FDIC v. Mallen, 486 U.S. 230,

242 (1988) (suspension of bank official from participating in bank’s affairs); Gilbert v. Homar, 520 U.S. 924,

931-32 (1997) (tenured police officer’s suspension without pay after being arrested and charged with felony).

The Medina test, on the other hand, “provide[s] the

appropriate framework for assessing the validity of

state procedural rules” that “are part of the criminal

process.” Medina, 505 U.S. at 443. As this Court explained in District Attorney’s Office for Third Judicial

District v. Osborne, 557 U.S. 52 (2009), the Medina test

applies to cases reviewing state post-conviction procedures. Specifically, the Osborne Court applied Medina

to hold that Alaska’s denial of a prisoner’s access to

DNA testing under post-conviction procedures developed through Alaska courts’ interpretation of state law

did not violate fundamental principles of justice or fairness. Id. at 69. The Court explained that “when a State

15

chooses to offer help to those seeking relief from convictions, due process does not dictate the exact form

such assistance must assume.” Id. (cleaned up). That

is because, as here, a convicted inmate’s “right to due

process … must be analyzed in light of the fact that he

ha[d] already been found guilty at a fair trial, and ha[d]

only a limited interest in postconviction relief.” Id.

State courts and legislatures accordingly have “more

flexibility in deciding what procedures are needed in

the context of postconviction relief.” 557 U.S. at 68.

Medina thus provides the governing standard for

evaluating the constitutional adequacy of California’s

post-conviction procedures at issue in this case. Here,

Respondent did not satisfy the high burden Medina

sets for his due process claim. California’s alleged delay in appointing habeas counsel, which is not constitutionally required, does not offend fundamental principles of justice or fairness because Respondent, a convicted inmate “has only a limited interest in postconviction relief,” Osborne, 557 U.S. at 69, and various California statutes and policy choices affect when the appointment of habeas counsel can be made.2

The Ninth Circuit, however, incorrectly relied on

Mathews. See Pet.App.84a-88a (balancing the Mathews

2

See, e.g., Cal. Gov’t Code § 68661(a) (authorizing Habeas

Corpus Resource Center to employ no more than 34 capital

defense attorneys); Cal. Gov’t Code § 68666(a) (authorizing

California Supreme Court to compensate habeas counsel at

rate of at least $125 per hour); Cal. Gov’t Code § 68666(b)

(limiting authorized habeas litigation expenses to $50,000

absent an order to show cause); Cal. Rule of Court 8.652

(establishing competency standards that limit the pool of

private attorneys available to handle habeas cases).

16

factors to conclude Respondent had a “substantial” interest in appointment of capital habeas counsel, a property right that the State’s procedures inadequately protected). The court’s application of that test infringed

upon the principles of federalism and comity by intruding on an area where States are generally given deference—“flexibility in deciding what procedures are

needed in the context of postconviction relief.” Osborne, 557 U.S. at 68.

II. THE DECISION BELOW WILL HAVE

SERIOUS NEGATIVE CONSEQUENCES

Aside from its legal flaws, the decision below will

also impose severe practical consequences. The most

immediate is likely a flood of lawsuits from capital inmates seeking to force state courts or other state-government entities to appoint post-conviction counsel on

timelines determined by federal courts.

That consequence is undeniable in California. The

Ninth Circuit panel members recognized that “other

capital prisoners who ... have waited many years for habeas counsel” will invoke the “decisional framework” of

the decision below to try to force the appointment of

such counsel. Pet.App.7a (Berzon, J., respecting the

denial of rehearing en banc). That is no small concession given the hundreds of capital inmates in California.

See Death Penalty Info Ctr., California (2025),

https://tinyurl.com/yc7dvd36. Moreover, “[t]he ambiguity in the panel’s ‘expeditiously’ standard invites

lengthy discovery bouts” about its proper application,

which will only further hinder state courts’ ability to devote resources to appointing counsel in capital habeas

cases. Pet.App.23a n.4 (Bennett, J., dissenting from the

denial of rehearing en banc).

17

California is not the only state where courts would

be vulnerable to such suits. Of the 27 states that authorize capital punishment, 25 have statutes providing

for appointment of habeas counsel for indigent capital

inmates.3 As of this year, these 25 states had 2,057 inmates on death row. See Death Penalty Info Ctr., State

Ala. Code § 13A-5-53.1(b) (“shall appoint”); Ariz. Rev. Stat. § 134041(B) (“shall appoint”); Ark. Code § 16-91-202(a)(1)(A)(i)

(“shall … enter a written order appointing”); Colo. Rev. Stat. § 1612-205(1) (“shall enter an order appointing”); Conn. Gen. Stat.

§ 51-296(a) (“shall … designate”); Fla. R. Crim. P. 3.851(b)(1)

(“shall … issue an order appointing”); Idaho Crim. R. 44.2(a)

(“must assign”); Ind. R. Crim. P. 24(H) (“shall enter”); Kan. Stat.

§ 22-4506(d)(1) (“shall provide”); Ky. Rev. Stat. § 31.110(2)(c) (“is

entitled to be represented”); La. Rev. Stat. § 15:169(A) (“shall

promptly cause counsel to be enrolled”); Miss. R. App. P.

22(c)(1)(i) (“shall be represented”); Mo. Rev. Stat. § 547.370(1)

(“shall cause to be appointed”); Mont. Code § 46-21-201(3)(b)(1)

(“shall … order the office of state public defender to assign

counsel”); Nev. Rev. Stat. § 34.820(1)(a) (“shall … [a]ppoint”);

Ohio Rev. Code § 2953.21(J)(1) (“shall appoint”); 22 Okla. St.

§ 1089(B) (“shall represent”); Or. Rev. Stat. § 138.590(4) (“shall

appoint”); 234 Pa. Code Rule 904(H)(1) (“shall appoint”); S.C.

Code § 17-26-160(B) (“shall be immediately appointed”); S.D.

Codified Laws § 21-27-4 (“shall, if the judge finds that such

appointment is necessary to ensure a full, fair, and impartial

proceeding, appoint”); Tenn. Sup. Ct. Rule 13(i) (“shall be

appointed”); Tex. Crim. P. art. 11.071, § 2(c) (“shall appoint”);

Utah Code § 78B-9-202(2)(a) (“shall … promptly appoint”); Wyo.

Stat. § 7-6-104(c)(ii) (“entitled … [t]o be represented”). But see

Sallie v. Chatman, 34 F. Supp. 3d 1272, 1290 n.21 (M.D. Ga. 2014)

(recognizing that Georgia does not appoint habeas counsel for

indigent death-row inmates); State v. Victor, 242 Neb. 306, 313

(1993), aff’d, 511 U.S. 1 (1994) (same for Nebraska). See generally

Death Penalty Info. Ctr., State by State (2025),

https://tinyurl.com/338vnmkz (noting that 27 States retain the

death penalty).

3

18

by State (2025), https://tinyurl.com/338vnmkz. According to the “decisional framework” of the decision below,

every one of those states could also be a font of numerous federal cases just like this one.

If successful, those hundreds of new suits would impose enormous burdens on limited state resources. According to a report that Respondent cited in his complaint below, a successful capital habeas petition can

take “8,000 hours of pro bono attorney time, [take]

7,000 hours of paralegal time, and [accrue] litigation expenses of $328,000.” California Commission on the Fair

Administration of Justice, Final Report 53 n.71 (2008),

https://tinyurl.com/2d2jmu82 (citing In Re Lucas, 33

Cal. 4th 682 (2004)); see First Amended Complaint at 10

(¶ 31), Redd v. Cantil-Sakauye, No. 16-cv-1540 (C.D.

Cal. Aug. 13, 2019), ECF No. 31. Multiplying those

hours by the currently applicable fee rates in California

would mean the total cost of a capital habeas petition is

roughly $1.75 million. See Cal. Sup. Ct., Payment

Guidelines for Counsel Appointed by the Supreme

Court Representing Indigent Criminal Appellants in

California Courts at 2 (Feb. 1, 2025), https://tinyurl.com/yv933hb6. Multiplied by 362 (the minimum

number of other indigent capital prisoners in Respondent’s putative class), that would amount to federal

courts imposing an over-$600-million burden on California’s judiciary. Cf. Pet.App.22a n.4 (Bennett, J., dissenting from the denial of rehearing en banc).

Beyond California, taking those same hours and

multiplying them by the currently applicable federal

Criminal Justice Act rates would yield a total cost of

approximately $2 million per capital habeas petition.

U.S. Courts, Criminal Justice Act (CJA) Guidelines §

630.10.10(a), https://tinyurl.com/chj2mhmb. Multiplied

19

by 2,057 (the approximate number of other death-row

inmates in states that provide for the appointment of

capital habeas counsel), that would amount to an over$4-billion bill for state courts.

Finally, without vacatur, the Ninth Circuit’s analysis paves the way for more “intrusive” due process scrutiny of states’ post-conviction procedures under the inapplicable Mathews test. Medina, 505 U.S. at 446.

That result would undercut states’ “flexibility in deciding what procedures are needed in the context of postconviction relief”—a flexibility justified on the grounds

that a “criminal defendant proved guilty … does not

have the same liberty interests as a free man.” Osborne, 557 U.S. at 68-69. It would also disregard the

“substantial deference” due to States’ “considerable expertise” in the area of criminal process, which, like the

writ of habeas corpus, is “grounded in centuries of common-law tradition.” Medina, 505 U.S. at 445-46. Such

a stark departure from this Court’s precedent with such

grave consequences for states and our system of federalism merits vacatur now that the decision has by happenstance become effectively unreviewable.

CONCLUSION

For the reasons set forth above, the Court should

grant the petition for certiorari and vacate the

judgment below.

Respectfully submitted.

20

ALEX VAN DYKE

QUINN EMANUEL URQUHART

& SULLIVAN, LLP

300 West 6th Street

Suite 2010

Austin, TX 78701

SAM HEAVENRICH

VINCE PARASCANDOLO

QUINN EMANUEL URQUHART

& SULLIVAN, LLP

295 Fifth Avenue

New York, NY 10016

CHRISTOPHER G. MICHEL

Counsel of Record

QUINN EMANUEL URQUHART

& SULLIVAN, LLP

1300 I Street NW

Suite 900

Washington, DC 20005

(202) 538-8000

christophermichel@

quinnemanuel.com

Counsel for Amicus Curiae Conference of Chief Justices

April 28, 2025