Reply 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,

AND KIMBERLY MENNINGER, JUDGE OF THE SUPERIOR

COURT OF CALIFORNIA, COUNTY OF ORANGE,

Petitioners,

v.

STEPHEN MORELAND REDD,

Respondent.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

REPLY BRIEF FOR PETITIONERS

RYAN AZAD

VANNALEE CAYABYAB

GIBSON, DUNN &

CRUTCHER LLP

One Embarcadero Center,

Suite 2600

San Francisco, CA 94111

THEODORE J. BOUTROUS, JR.

Counsel of Record

JULIAN W. POON

PATRICK J. FUSTER

GIBSON, DUNN & CRUTCHER LLP

333 South Grand Avenue

Los Angeles, CA 90071

(213) 229-7000

tboutrous@gibsondunn.com

Counsel for Petitioners

TABLE OF CONTENTS

Page

A. The Case Became Moot By

Happenstance ................................................... 3

B. Circuits Disagree About The Vacatur

Standard When A Case Becomes Moot

After A Panel Issues Its Opinion ..................... 6

C. The Ordinary Munsingwear Test Applies

In This Context ................................................. 8

D. Respondent Disavows A Certworthiness

Requirement, Which Petitioners Meet

Anyway............................................................ 11

ii

TABLE OF AUTHORITIES

Cases

Page(s)

Acheson Hotels, LLC v. Laufer,

601 U.S. 1 (2023) .................................................. 11

Alvarez v. Smith,

558 U.S. 87 (2009) .................................................. 9

Arizonans for Official English v. Arizona,

520 U.S. 43 (1997) .................................................. 9

Armster v. U.S. District Court for Central

District of California,

806 F.2d 1347 (9th Cir. 1986) ...................... 6, 7, 11

Azar v. Garza,

584 U.S. 726 (2018) ................................................ 9

Banyee v. Bondi,

131 F.4th 823 (8th Cir. 2025) ............................ 1, 7

Bastien v. Office of Senator Ben

Nighthorse Campbell,

409 F.3d 1234 (10th Cir. 2005) .............................. 7

Camreta v. Greene,

563 U.S. 692 (2011) ............................ 2, 8, 9, 10, 11

Chapman v. Doe,

143 S. Ct. 857 (2023) ............................................ 11

Claiborne v. United States,

551 U.S. 87 (2007) ................................................ 10

iii

Cases (continued)

Page(s)

Dickens v. Ryan,

744 F.3d 1147 (9th Cir. 2014) ................................ 6

In re Ghandtchi,

705 F.2d 1315 (11th Cir. 1983) .............................. 7

In re Grand Jury Investigation,

399 F.3d 527 (2d Cir. 2005) ................................... 7

Hirschfeld v. Bureau of Alcohol, Firearms,

Tobacco & Explosives,

14 F.4th 322 (4th Cir. 2021) .................................. 8

Hollingsworth v. Perry,

570 U.S. 693 (2013) .............................................. 12

Humphreys v. DEA,

105 F.3d 112 (3d Cir. 1996) ................................... 7

Knight v. Florida,

528 U.S. 990 (1999) ................................................ 5

Lackey v. Texas,

514 U.S. 1045 (1995) .............................................. 5

Mathews v. Eldridge,

424 U.S. 319 (1976) .............................................. 12

Medina v. California,

505 U.S. 437 (1992) .............................................. 12

People v. Redd,

48 Cal. 4th 691 (2010) ............................................ 5

iv

Cases (continued)

Page(s)

Redd v. Chappell,

574 U.S. 1041 (2014) .............................................. 4

Ryan v. Nash,

559 U.S. 999 (2010) .............................................. 10

Stone v. Powell,

428 U.S. 465 (1976) ................................................ 5

U.S. Bancorp Mortgage Co. v. Bonner Mall

Partnership,

513 U.S. 18 (1994) .................................. 2, 3, 4, 5, 9

United States v. Hamburg-Amerikanische

Packetfahrt-Actien Gesellschaft,

239 U.S. 466 (1916) ................................................ 3

United States v. Munsingwear, Inc.,

340 U.S. 36 (1950) .............................................. 1, 2

United States v. Schaffer,

240 F.3d 35 (D.C. Cir. 2001) .................................. 8

Walling v. James V. Reuter, Inc.,

321 U.S. 671 (1944) ................................................ 9

Other Authorities

Stephen M. Shapiro et al.,

Supreme Court Practice (11th ed. 2019) ............. 10

IN THE

Supreme Court of the United States

No. 24-948

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 A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

REPLY BRIEF FOR PETITIONERS

Respondent abandons most of his defenses of the

Ninth Circuit’s refusal to vacate its decision holding

that the California judiciary plausibly violated the

Due Process Clause because of delays in the appointment of state habeas counsel, something that the Constitution does not itself guarantee. He agrees that

courts should follow the “ordinary application” of

United States v. Munsingwear, Inc., 340 U.S. 36

(1950), even when a case becomes moot after the panel

issued its decision. Br. in Opp. 20 (citation omitted).

Although the Eighth Circuit in Banyee v. Bondi, 131

F.4th 823 (8th Cir. 2025), has only deepened the conflict since the filing of the petition, respondent dis-

2

claims any more stringent vacatur standard. He also

agrees that this Court can vacate even without finding

that the underlying decision is “cert-worth[y].” Br. in

Opp. 26.

Everyone agrees, then, that this Court should apply Munsingwear straight up here. Under that decision, “mootness by happenstance provides sufficient

reason to vacate” and thereby “clears the path for future relitigation of the issues.” U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18, 22,

25 n.3 (1994) (quoting Munsingwear, 340 U.S. at 40).

Respondent argues half-heartedly that the case did

not become moot by happenstance because he died

while pursuing claims that the delay in appointment

of state habeas counsel violated the Constitution—an

assertion that improperly bootstraps the merits into

Munsingwear and misrepresents the causes of litigation delay below. Respondent also argues that petitioners must show prejudice beyond the harms of being bound by an adverse precedent even though

Camreta v. Greene, 563 U.S. 692 (2011), held that

Munsingwear prevents precisely that kind of prejudice, which is especially egregious for repeat litigants

like petitioners.

The need for this Court’s intervention is urgent,

as the Conference of Chief Justices and 20 States

make clear. Petitioners have pursued vacatur because the Ninth Circuit’s decision, by the panel’s own

description, establishes a “framework” for “similarlysituated prisoners” to attempt “to get past the pleading stage” with claims against the California judiciary.

Pet. App. 7a, 16a (Berzon, J., respecting denial of rehearing en banc); see also States Br. 18. And respondent’s counsel (despite representing no live client) vigorously defends that framework, perhaps because

3

counsel “is aware of several other class members who

are ready and willing to intervene in the action to pursue the same claims.” C.A. Doc. 69, at 34 n.6 (Feb. 16,

2024). This Court should grant the petition, vacate

the Ninth Circuit’s decision, and allow future relitigation of the underlying issues.

A. The Case Became Moot By Happenstance

Respondent’s lead argument is that the case did

not become moot by happenstance because he died

while litigating claims alleging delays in the appointment of counsel under state law. Br. in Opp. 14. But

even the panel acknowledged “mootness caused by the

death of one party” is a form of “[i]nvoluntary mootness.” Pet. App. 8a. Still, the panel refused to vacate

because its opinion was issued before the case became

moot, would provide “‘guidance’” for future lawsuits,

and (at the same time) supposedly did not cause “substantial prejudice” to petitioners. Id. at 9a (citation

omitted). Respondent offers no sound reason to revisit

the panel’s conclusion that the case became moot by

happenstance.

Respondent’s contrived definition of happenstance

depends on the merits of his claim that there were

“unconstitutional delays” in the appointment of habeas counsel under state law. Br. in Opp. 14. That

approach defies this Court’s longstanding recognition

that vacatur cannot turn on “assumptions about the

merits” that the Court now lacks “constitutional

power to decide.” Bancorp, 513 U.S. at 27; see, e.g.,

United States v. Hamburg-Amerikanische PacketfahrtActien Gesellschaft, 239 U.S. 466, 477 (1916). Because

mootness cut short petitioners’ ability to press their

justiciability and merits defenses, saddling petitioners

with an adverse decision based on the timing of respondent’s death would be unfair. Pet. 10.

4

Respondent also has no basis to argue that mootness “result[ed] from the unilateral action” of petitioners. Bancorp, 513 U.S. at 23. This Court has never

held that standard litigation delays are the sort of inequitable conduct that could deprive a party of the

protections of vacatur. At any rate, almost none of the

delay can be laid at petitioners’ feet:



Respondent spent 15 months seeking appointment of state habeas counsel through an improper vehicle, culminating in this Court’s denial of certiorari in Redd v. Chappell, 574 U.S.

1041 (2014).



Respondent waited 15 months to file a § 1983

claim. D. Ct. Doc. 1 (Mar. 4, 2016).



Without calling for a response from petitioners, the district court took 19 months to dismiss the complaint. D. Ct. Doc. 4, at 7-9 (Oct. 3,

2017).



Fourteen months later, the Ninth Circuit vacated the dismissal and instructed the district

court to allow respondent to file an amended

complaint—relief petitioners did not oppose.

D. Ct. Doc. 16 (Dec. 12, 2018).



Respondent secured counsel, who sought multiple extensions before filing an amended

complaint nine months later, D. Ct. Doc. 31

(Aug. 13, 2019), and serving petitioners three

months after that, D. Ct. Docs. 45-46 (Nov. 20,

2019).



After the parties briefed petitioners’ motion to

dismiss on a schedule punctuated with delays

(including from the COVID-19 pandemic), the

district court dismissed the amended complaint

ten months after the filing of the reply in sup-

5

port of the motion. D. Ct. Doc. 78 (Mar. 31,

2021).



On October 20, 2023, the panel issued its opinion 17 months after oral argument. Pet. App.

45a.



Two months later, respondent died of natural

causes while petitioners’ rehearing petition

was pending. C.A. Doc. 61, at 1 (Dec. 26, 2023).

As that timeline shows, the delay stemmed from

respondent’s litigation choices and from long periods

during which the courts below prepared their opinions. Petitioners never “step[ped] off the statutory

path” of review nor took action to thwart respondent’s

ability to pursue his constitutional claims in federal

court. Bancorp, 513 U.S. at 27. And such routine delays in capital litigation are no more an exception to

Munsingwear than they are a violation of the Eighth

Amendment. Cf. Knight v. Florida, 528 U.S. 990, 992

(1999) (Thomas, J., concurring in denial of certiorari)

(citing Lackey v. Texas, 514 U.S. 1045 (1995)).

Respondent’s counsel refers generically to “exculpatory evidence” and “innocence.” Br. in Opp. 6, 14.

But respondent sought counsel primarily to challenge

the California courts’ refusal to suppress inculpatory

evidence, a claim that is not even cognizable in habeas. D. Ct. Doc. 1, at 5-8; see Stone v. Powell, 428

U.S. 465, 494 (1976). Again, “there was overwhelming

and seemingly irrefutable evidence that [respondent]

committed the crimes charged.” People v. Redd, 48

Cal. 4th 691, 740 (2010). It would be perverse to attribute the timing of respondent’s death to petitioners

when respondent received all he could have hoped to

obtain in habeas: an indefinite stay of his death sentence. Pet. 6-7.

6

B. Circuits Disagree About The Vacatur

Standard When A Case Becomes Moot

After A Panel Issues Its Opinion

Respondent makes no headway attacking the split

from either end. The Ninth Circuit, along with the

Second, Third, Tenth, and (late-switching) Eighth Circuits, have held that a court of appeals has more discretion to leave its own opinion in place when “postdecisional mootness” strikes. Pet. App. 6a. In contrast, the D.C., Fourth, and Eleventh Circuits apply

the standard Munsingwear test, under which mootness by happenstance ordinarily requires vacatur.

Respondent begins by mischaracterizing the

Ninth Circuit’s decisions. He contends that the Ninth

Circuit refused to vacate its decision in Armster v.

U.S. District Court for Central District of California,

806 F.2d 1347 (9th Cir. 1986), because the case was

“not moot.” Br. in Opp. 15 (quoting 806 F.2d at 1361).

But respondent ignores the fact that Armster separately refused to apply Munsingwear on the theory

that “[t]here is a significant difference between a request to dismiss a case or proceeding for mootness

prior to the time an appellate court has rendered its

decision on the merits and a request made after that

time.” 806 F.2d at 1355. The Ninth Circuit has since

repeatedly distinguished mootness before a panel

opinion from mootness after one. E.g., Pet. App. 6a;

Dickens v. Ryan, 744 F.3d 1147, 1148 (9th Cir. 2014)

(en banc).

Nor does the Ninth Circuit stand alone in claiming more discretion to shield its own decisions from

Munsingwear vacatur. The Third and Tenth Circuits

agree that “[t]here is a significant difference” between

requesting vacatur “prior to” and “after” the court of

appeals “has rendered its decision on the merits.”

7

Humphreys v. DEA, 105 F.3d 112, 115 (3d Cir. 1996)

(quoting Armster, 806 F.2d at 1355); Bastien v. Office

of Senator Ben Nighthorse Campbell, 409 F.3d 1234,

1235 (10th Cir. 2005) (per curiam) (quoting same).

The Second, Third, and Tenth Circuits also have all

treated post-decisional mootness (along with settlement) as a circumstance that “generally” disfavors vacatur. In re Grand Jury Investigation, 399 F.3d 527,

528 n.1 (2d Cir. 2005); Humphreys, 105 F.3d at 114;

Bastien, 409 F.3d at 1236. And since the petition’s filing, the Eighth Circuit has fractured over this precise

question whether decisions are “generally not good

candidates for discretionary vacatur” when mootness

arises only after the decision. Banyee, 131 F.4th at 826

(Stras, J., concurring in denial of rehearing en banc);

see id. at 829-830 (Colloton, C.J., dissenting from denial of rehearing en banc) (urging application of Munsingwear standard).

Respondent contends that these circuits denied

vacatur on the “particular facts” of each case given the

“unique equities.” Br. in Opp. 15, 17. But the question isn’t whether the Ninth Circuit and its compatriot

circuits always, never, or “sometimes” vacate their

own decisions. Cf. id. at 16-17. The question is

whether those circuits properly adopted a special test

for post-decisional mootness.

Three circuits take a different approach, applying

the standard rules of Munsingwear even when a case

becomes moot after the panel decision’s issuance. Before Bancorp, the Eleventh Circuit would vacate its

decisions under Munsingwear even when the parties

settled after the panel issued its opinion. E.g., In re

Ghandtchi, 705 F.2d 1315, 1316 (11th Cir. 1983) (per

curiam). And since Bancorp clarified that vacatur is

generally inappropriate when the parties settle, both

8

the D.C. Circuit and the Fourth Circuit have held that

vacatur is the “just and appropriate” (or “customary”)

remedy when a case becomes moot by happenstance.

United States v. Schaffer, 240 F.3d 35, 38 (D.C. Cir.

2001) (en banc) (per curiam) (first quote); Hirschfeld

v. Bureau of Alcohol, Firearms, Tobacco & Explosives,

14 F.4th 322, 327-328 (4th Cir. 2021) (second quote).

None of those courts suggested that a different standard applies to “post-decisional mootness.” Pet. App.

6a.

Given this split over the standard, respondent retreats to the position that the conflict is unimportant

because mootness “rarely” arises after a panel decision. Br. in Opp. 20. This Court is the best judge of

whether such mootness is really that “rar[e]” in light

of the number of such Munsingwear requests that

could be resolved in the courts of appeals but are instead shunted onto the certiorari docket. See Pet. 2627 (collecting examples).

C. The Ordinary Munsingwear Test Applies

In This Context

Respondent intones that vacatur depends on the

“equities and circumstances” of each case. Br. in Opp.

22. But respondent never says what equities should

matter. Munsingwear is not an anything-goes test,

and the considerations outlined by this Court’s precedents make clear that vacatur is appropriate here.

The prime factor is that the case became moot by

the happenstance of respondent’s death. See pp. 3-6,

supra. According to the Ninth Circuit, vacatur in such

event “is neither mandatory nor commonplace.” Pet.

App. 9a. But this Court has held that vacatur is the

“normal rule” for mootness by happenstance.

Camreta, 563 U.S. at 713. Not just once: “Vacatur is

9

in order when mootness occurs through happenstance—circumstances not attributable to the parties.” Arizonans for Official English v. Arizona, 520

U.S. 43, 71 (1997). And not just twice: “[M]ootness by

happenstance provides sufficient reason to vacate.”

Bancorp, 513 U.S. at 25 n.3; see also, e.g., Alvarez v.

Smith, 558 U.S. 87, 95-97 (2009).

Respondent does not dispute that this Court has

never articulated a different vacatur standard when a

case “became moot before certiorari” but after the

court of appeals’ decision. Azar v. Garza, 584 U.S.

726, 729 (2018) (per curiam). For at least eight decades, this Court has understood that an appeal “contemplates more than a consideration of the case by the

Circuit Court of Appeals alone.” Walling v. James V.

Reuter, Inc., 321 U.S. 671, 677 (1944). Those decisions

refute the Ninth Circuit’s special rule disfavoring vacatur in this context.

Respondent argues that petitioners have not suffered “any meaningful prejudice” because the panel

opinion is not a “final adverse ruling.” Br. in Opp. 2324. But as petitioners explained, Camreta forecloses

that narrow understanding of prejudice. Pet. 26-28.

This Court vacated a portion of a decision in favor of

the petitioners because that aspect had adverse “prospective effects”—namely, other plaintiffs could rely

on the opinion’s “legally consequential” ruling in “future cases.” Camreta, 563 U.S. at 713, 714 n.11.

While the Ninth Circuit denied vacatur to preserve its

“decisional framework” for “future courts” that may

confront claims brought potentially by hundreds of

capital inmates, Pet. App. 7a, that binding precedential effect, “[f ]ar from counseling against vacatur,”

only “reveals the necessity of that procedural course”

for repeat players like petitioners with an institu-

10

tional interest in challenging adverse precedent

through the full appellate process, Camreta, 563 U.S.

at 713; see States Br. 7-8. Yet respondent never even

cites Camreta, despite its ample airtime in the petition.

Respondent also has no response to the harms to

state sovereignty and fiscal integrity noted by amici.

The Ninth Circuit’s decision “undermines important

principles of federalism and comity” by allowing federal courts to oversee and interfere with the state judiciary’s administration of state postconviction proceedings. Conference of Chief Justices Br. 3; accord

States Br. 14-15. And its treatment of appointed

counsel as a property right could impose “an over$600-million burden” on California through lawsuits

against California judges. Conference of Chief Justices Br. 18; see Pet. 32. Respondent does not dispute

the tremendous potential cost.

Respondent falls back on a death-is-different approach to Munsingwear. Br. in Opp. 23. But none of

his cases supports denying vacatur here. In one, the

petitioner voluntarily moved to dismiss the petition

after the respondent’s death without seeking vacatur.

Mot. to Dismiss Pet., Ryan v. Nash, 559 U.S. 999

(2010) (No. 09-686). The other two arose from criminal and habeas cases that were once governed by a

separate standard and have come under Munsingwear only “in recent years.” Stephen M. Shapiro

et al., Supreme Court Practice § 19.7, at 19-39 (11th

ed. 2019); see Claiborne v. United States, 551 U.S. 87,

87-88 (2007) (per curiam).

Ultimately, respondent’s dueling understanding

of Munsingwear tracks the approach advocated by

Justice Jackson in two recent separate opinions. Br.

in Opp. 23-25. He contends, in effect, that petitioners

11

should be required to identify some harm beyond

“having to accept the law as the lower court stated it.”

Acheson Hotels, LLC v. Laufer, 601 U.S. 1, 19-20

(2023) (Jackson, J., concurring in the judgment) (stating “disagree[ment]” with Camreta). And he argues

that the general rule of vacatur upon mootness by

happenstance does not honor the view that “judicial

decisions are valuable and should not be cast aside

lightly.” Id. at 17 (quoting Chapman v. Doe, 143 S. Ct.

857, 858 (2023) (Jackson, J., dissenting)).

Just last Term, this Court “decline[d] Justice

Jackson’s invitation to reconsider” its “Munsingwear

practice,” which is “well settled.” Acheson, 601 U.S. at

5. Respondent was free to argue that this Court

should, so to speak, reconsider its refusal to reconsider. But this Court has not done so.

D. Respondent Disavows A Certworthiness

Requirement, Which Petitioners Meet

Anyway

Some, notably the Solicitor General, have argued

that Munsingwear vacatur is proper “only if the case

would have warranted certiorari but for mootness.”

E.g., Br. in Opp. at 10, Perez-Garcia v. United States,

No. 24-6203 (Apr. 16, 2025); see also Armster, 806

F.2d at 1356 n.12. Here, however, respondent agrees

with petitioners that the “cert-worthiness of the issues decided in the underlying panel opinion is an entirely separate issue from the vacatur-related question.” Br. in Opp. 26-27; see Pet. 25-29. Respondent

thus has relinquished any argument that petitioners

must establish that they were not only deprived of

seeking, but also likely would have secured, further

review. This Court should accept that concession at a

minimum for purposes of this petition and accordingly

12

vacate the panel decision for mootness by happenstance.

Petitioners in any event satisfy a certworthiness

standard. First, this Court likely would have held a

petition pending review of the Article III standing

question in Gutierrez v. Saenz, No. 23-7809 (argued

Feb. 24, 2025), and considered a GVR. Pet. 29-30.

Although respondent tries to sidestep Gutierrez on the

theory that he “had a right to state-appointed counsel

as a matter of state law,” Br. in Opp. 28, “standing in

federal court is a question of federal law, not state

law,” Hollingsworth v. Perry, 570 U.S. 693, 715 (2013).

Second, respondent does not identify any support for

the Ninth Circuit’s unprecedented treatment of appointed counsel as a property right rather than a procedural right. Br. in Opp. 29. And third, respondent

admits that the Ninth Circuit should not have applied

Mathews v. Eldridge, 424 U.S. 319 (1976), if appointment of counsel (as here) is a “state procedural rul[e].”

Br. in Opp. 28 (quoting Medina v. California, 505 U.S.

437, 443 (1992)). Respondent has no answer to the

cases from this Court and other courts of appeals that

apply Medina to postconviction proceedings. Pet. 31;

Conference of Chief Justices Br. 15-16.

13

*****

The Court should grant the petition for a writ of

certiorari, vacate the Ninth Circuit’s decision under

United States v. Munsingwear, Inc., 340 U.S. 36 (1950),

and remand with instructions to direct the district

court to dismiss the case as moot.

Respectfully submitted.

RYAN AZAD

VANNALEE CAYABYAB

GIBSON, DUNN &

CRUTCHER LLP

One Embarcadero Center,

Suite 2600

San Francisco, CA 94111

THEODORE J. BOUTROUS, JR.

Counsel of Record

JULIAN W. POON

PATRICK J. FUSTER

GIBSON, DUNN & CRUTCHER LLP

333 South Grand Avenue

Los Angeles, CA 90071

(213) 229-7000

tboutrous@gibsondunn.com

Counsel for Petitioners

June 10, 2025