Opposition Brief — McCormick v. Fitzpatrick

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RECEIVED

HAND DELIVERED

AUG - x 1989

OFFICE OF THE CLERK

NO. 88-1969 SUPREME COURT. US

Sugresie Court, WS.

Pit bw

IN THE SUPREME COURT OF THE UNITED STATES A

AUG 3 iSey

OCTOBER TERM, 1988 JOSEPH F_SFANIAL IR

CLERK

JACK MCCORMICK,

Warden of the Montana State Prison,

Petitioner,

Vv.

BERNARD J. FITZPATRICK,

Respondent.

BRIEF FOR RESPONDENT IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHAEL LAURENCE* TIMOTHY K. FORD

ACLU FOUNDATION OF MACDONALD, HOAGUE

NORTHERN CALIFORNIA & BAYLESS

1663 Mission Street 705 Second Avenue

Suite 460 Fifteenth Floor

San Francisco, CA 94103 Seattle, WA 98104

(415) 621-2493 (206) 622-1604

Attorneys for Respondent

*Counsel of Record

QUESTIONS PRESENTED

1. Were there any facts properl} found by a state court to which

the Court of Appeals should have paid deference in resolving the

legal question of whether respondent's trial attorney labored

under a conflict of interest?

2. May petitioner raise for the first time in the petition for

certiorari the question of whether respondent’s double jeopardy

claim is barred under the retroactivity principles announced in

Teaque v. Lane, 489 U.S. ___, 109 S. Ct. 1060 (1989)? And, if

SO, was the Court of Appeals precluded from addressing

respondent’s double jeopardy claim because of nonretroactivity

principles?

3. Did the Court of Appeals correctly decide that the acquittal

of the death sentence in respondent’s first trial for the crime

of deliberate homicide barred imposition of the death sentence

for that same offense upon retrial?

CONTENT

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TABLE OF AUTHORITIES

Cases

Arizona v. Rumsey, 467 U.S. 203 (1984)

Bullington v. Missouri, 451 U.S. 430 (1981)

Bullington v. Missouri, 445 U.S. 819 (1980)

Crist v. Bretz, 437 U.S. 28 (1978)

Cuyler v. Sullivan, 446 U.S. 335 (1980)

Desist v. United States, 394 U.S. 244 (1969)

Eastland v. United States Servicemen’s Fund,

421 U.S. 491 (1975) ea. vice ee

Engle v. Isaac, 456 U.S. 107 (1982)

Ex parte Lange, 85 U.S. (18 Wall.) 163 (1874)

Fitzpatrick v. McCormick, 869 F.2d 1247

(9th Cir. 1989) eee Ib

Fitzpatrick v. Montana, 449 U.S. 891 (1980)

Fitzpatrick v. State, 671 P.2d 1 (Mont. 1983)

Fitzpatrick v. State, No. 1107-C, slip op.

(Mont. Dist. Ct., Sept. 1, 1982) aah me

Granberry v. Greer, 107 S. Ct. 1671 (1987)

Green v. United States, 355 U.S. 184 (1957)

Griffith v. Kentucky, 479 U.S. 314 (1987)

Helstoski v. Meanor, 442 U.S. 500 (1979)

Holioway v. Arkansas, 435 U.S. 475 (1978)

In re Neilson, 131 U.S. 176 (1888)

Mackey v. United States, 401 U.S. 667 (1971)

Mannhalt v. Reed, 847 F.2d 576 (9th Cir. 1988),

cert. denied, 109 S. Ct. 260 (1988) Bae stan

McMann v. Richardson, 397 U.S. 759 (1970)

Menna v. New York, 423 U.S. 61 (1975)

Miller v. Fenton, 474 U.S. 104 (1985)

North Carolina v. Pearce, 395 U.S. 711 (1969)

Palko v. Connecticut, 302 U.S. 319 (1937)

Penry v. Lynaugh, 56 U.S.L.W. 4958 (U.S., June 26,

State v. Fitzpatrick, 569 P.2d 383 (Mont. 1977)

iii

12,

1989)

Strickland v. Washington, 466 U.S. 668 (1984) ....... 3, 4

Stroud v,. United States, 251 U.S. 15 (1919) .. . 2. «= «= « « « &

Teaque v. Lane, 489 U.S. , 209: 8. Ce. 2060 (2583) . oe passim

Townsend vy. Sain, 372 U.S. 293 (1963)) ».© + © 2s © 6 ew ew ws 4

United States v. Agosto, 675 F.2d 965 (8th Cir.),

cert. denied, 459 U.S. 834 (1982) 7

United States v. Broce, 488 U.S. __, 109 S. Ct. 757 (1989) . 15

United States v. Francesco, 449 U.S. 117 (1980) ....... 217

United States v. MacDonald, 435 U.S. 850 (1978) ....... 25

United States v. Martinez, 630 F.2d 361 (5th Cir. 1980),

cert. denied, 450 U.S. 922 (1981). : Sy Preah Fie ee 7

United States v. Wheat, 813 F.Zd 1399 (9th Cir. 1987), aff'd,

486 U.S. __, 108 S. Ct. 1692 (1988) rere hs see ee 7

Sant vy. Nonre, 489 U.S. - -, 209 S. Ct. 1328 (2380). ss = ll

Statutes and Rules Page(s)

2O iv S Cy Re BeNOR se) Fe so WORN ne) eel Ag tee es Zz, 85 3

Sak. CE Re to eek ne Rk PR teee ne Cae l

Other authorities Page(s

ey Sea cts & A. Miller, Federal Practice and Procedure

( ) as 11

NO. 88-1969

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1988

JACK McCORMICK,

Warden of the Montana State Prison,

Petitioner,

Vv.

BERNARD J. FITZPATRICK,

Respondent.

BRIEF OF RESPONDENT IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Respondent Bernard J. Fitzpatrick respectfully submits that

the Court should not issue a writ of certiorari in this case

because petitioner has not disclosed any "special and important

reasons" for reviewing the unanimous panel decision below. Sup.

Ct. Re ae.

STATEMENT OF THE CASE

The Court of Appeal’s opinion, Fitzpatrick v. McCormick, 869

F.2d 1247, 1248-51 (9th Cir. 1989), adequately recounts the facts

surrounding respondent’s trials and post-conviction proceedings.

Respondent, however, is compelled to disagree with petitioner's

Statement of the Case in several respects as it relates to the

Questions Presented. Clarification of the record and additional

facts are discussed in the Reasons for Denying the Writ, infra.’

' One statement made by petitioner unrelated to the

Questions Presented requires some discussion here. On page 9 of

the Petition, petitioner implies that respondent somehow waived

REASONS FOR DENYING THE WRIT

THE COURT OF APPEALS’ CONCLUSION THAT RESPONDENT’S

TRIAL ATTORNEY ACTIVELY REPRESENTED CONFLICTING

INTERESTS THAT ADVERSELY AFFECTED HIS PERFORMANCE

DID NOT VIOLATE 28 U.S.C. § 2254(d).

The Court of Appeals concluded that respondent was denied

his constitutional right to effective representation because his

trial attorney represented conflicting interests caused by his

the conflict of interest under which his attorney labored. The

Court of Appeals below read otherwise, and no court reviewing t

record has ever concluded that Bernard Fitzpatrick knew of Mr.

Adams’ conflict of interest caused by the confidential

information or its effect on the trial strategy. Moreover, no

court could have made such a conclusion because Mr. Fitzpatrick

was unaware that Mr. Adams would refuse to present evidence

val

pointing to Paul Bad Horse as the true culprit. See Petition

App. 156-57, 169 (Mr. Adams’ continues to refuse to disclose

information). Mr. Adams did not tell Mr. Fitzpatrick of the

conflict and made his decision not to implicate Mr. Bad Horse

without Mr. Fitzpatrick’s input. Deposition of John Adams, at

42, reprinted in Respondent’s Appendix 1 (Adams did not believe

there was a conflict and never discussed any conflict with

Bernard Fitzpatrick).

The prosecutor’s pretrial request for the trial court to

determine whether Mr. Fitzpatrick was "satisfied and happy with

the representation of Mr. John Adams,” Petition App. 180, which

petitioner emphasizes, Petition 9, said nothing about a potentia.

conflict of interest. Nor does the record indicate it was servec

on Mr. Fitzpatrick. In any event, at the January 16, 1978

hearing on respondent’s motion to remove Mr. Adams, the

possibility of a conflict of interest was not discussed. Pos

Conviction Hearing Transcript, at 1336-38, see Fitzpatri v

State, No. 1107-C, slip op. (Mont. Dist. Ce. Sept, 27 25

reprinted in, Petition App. 187, 189-90. The trial cou

the hearing was to discuss whether Mr. Adams should be

because he “has so much to do that he is not able to adequatel

take care of (Mr. Fitzpatrick’s] .. . case. Petition App. 1

Mr. Fitzpatrick indicated that was his understanding, stating

that Mr. Adams “assures me that his case load isn’t too heavy to

handle this case ... ." Petition App. 190. Moreover, the

trial court assured Mr. Fitzpatrick that Mr. Adams’ ability ¢t

represent his interests was enhanced by the fact that “he has

already been through this case cence and so he’s familiar with t

details so he can be of more help to you quicker and easier than

anybody else I could find.” Petition App. 190.

In short, there is no evidence that Bernard Fitzpa

of the conflict and voluntarily and intelligently waive

right to conflict-free representation. As the Court o

noted, respondent’s “mere knowledge that Adams represente

Horse at the first trial is [notj a basis for waiver of any

conflict of interest objections at his second trial.

Fitzpatrick v. McCormick, 869 F.2d at 1254 n.3.

prior representation of Paul Bad Horse and that those interests

adversely affected his later performance as respondent's

attorney.’ Petitioner does not address the merits of the court’s

conclusion, make any suggestion that the court’s opinion raises

any important federal issue, or indicate that the court’s

decision creates a conflict in the circuits. Indeed, petitioner

does not even claim any error of law committed by the Court of

Appeals. Rather, petitioner's sole argument is that somehow the

Court of Appeals failed to give adequate deference to the state

court findings of fact as required by 28 U.S.C. § 2254(d).°

Even if it were a reason to grant certiorari, petitioner's

attempt to portray the Court of Appeal’s decision as one of

insufficient deference to state factfinding would be unavailing.

The question of whether a conflict of interest violates the Sixth

Amendment right to counsel is a mixed question of law and fact.

The Court of Appeals’ decision was entirely consistent with any

findings of historical facts made by the state courts. The

inconsistencies to which petitioner alludes as evidence of the

Court of Appeals’ failure to pay proper deference to state fact-

finding simply reflect different constitutionai inferences from

the same set of facts.

Section 2254(d) of Title 28 creates a rebuttable presumption

of correctness of a determination made by a state court, “after a

* It is settled beyond debate that an attorney owes the

utmost loyalty to his or her client, and a failure to fulfill

this duty by representing conflicting interests that interfere

with a criminal defendant’s representation violates the U.S.

Constitution. See, e.g., Holloway v. Arkansas, 435 U.S. 475,

489-90 (1978). An attorney violates this duty of loyalty to his

or her client “when counsel is burdened by an actual conflict of

interest.” Strickland v. Washington, 466 U.S. 668, 692 (1984).

> Petitioner raises this argument for the first time in its

Petition to this Court. Petitioner did not contend below that

there was any state court fact-finding which required resolution

of the conflict of interest issue in the state’s favor. Indeed,

petitioner's brief in the Court of Appeals does not even cite 28

U.S.C. § 2254(d).

hearing on the merits of a factual issue." The presumption

applies only to determinations of "‘’basic, primary, or historical

fac(t).’” Strickiand v. Washington, 466 U.S. 668, 698 (1984)

(quoting Townsend v. Sain, 372 U.S. 293, 309 n.6 (1963)). When

the issue includes a mixed question of law and fact or question

of law, section 2254(d) does not require giving a presumption to

the state court’s findings. See, e.g., Miller v. Fenton, 474

U8. 104, 217 (1385);

This Court has consistently recognized that conflict of

interest determinations -- whether an attorney represents

conflicting interests and whether those conflicts adversely

affected the attorney’s representation -- are mixed questions of

law and fact, and not questions of fact. E.g., Cuyler v.

Sullivan, 446 U.S. 335, 342 (1980). Thus, section 2254(d) does

not accord any presumption of correctness to a state cour

conclusion that an attorney was not laboring under a conflict of

interest:

Although state court findings of fact made in the

course of deciding an ineffectiveness claim are su

to the deference requirement of § 2254(d),

the performance and prejudice components o

ineffectiveness inquiry are mixed question

fact.

Ww rh

Strickland v. Washington, 466 U.S. at 698.

There was no real question about the “basic, primary, or

historical facts" underlying this issue in this case. Mr. Adams

represented Paul Bad Horse when he originally was tried in 1375

with Bernard Fitzpatrick, Gary Radi, and Travis Holliday.’

Adams was a personal friend of Mr. Bad Horse and his family

before he became involved in this case. See, e.g., Post-

“ The 1975 convictions of respondent and his codefendants

were reversed on appeal by the Montana Supreme Court. §$tate v.

Fitzpatrick, 569 P.2d 383 (Mont. 1977). Each of the codefendants

was retried separately. Paul Bad Horse and Travis Holliday were

again convicted of robbery, while Gary Radi -- the person who the

prosecution contends assisted Bernard Fitzpatrick in kidnapping

and killing Monte Dyckman -- was acquitted on all counts

Conviction Hearing Transcript, at 437, 439, reprinted in

Respondent’s Appendix 2-3. Mr. Bad Horse convinced Mr. Adams

that he (Bad Horse) was not implicated in the killing. At the

state post-conviction hearing, Mr. Adams testified that he became

convinced during his representation of Mr. Bad Horse that he "had

been in downtown Hardin during the crime" and was not involved in

the homicide. Petition, App. 165; see also Petition App. 163.

However, when he was questioned as to how he arrived at these

conclusions, Mr. Adams refused to answer, because "[t]o answer

that question inferredly [sic] would invade attorney-client

relations, and rather than inferredly [sic] or otherwise, I will

say that I will stand on attorney-client privileges regarding my

knowledge or lack of knowledge regarding this case." Petition

App. 169; see also Petition App. 156-57. The privilege he was

pretecting was not Mr. Fitzpatrick'’s; Mr. Fitzpatrick waived that

privilege in the post-conviction proceedings, and each of his

attorseys -- including Mr. Adams -- testified that he told them

te was not involved in this murder. See, e.g., Petition App.

169.

Thus, despite Bernard Fitzpatrick’s protestations of

innocence -- to his attorney and from the witness stand -- Mr.

Adams plainly believed him guilty and refused to present any

defense that implicated Paul Bad Horse. The trial record reveals

no instance in which Mr. Adams asserts -- either by implication

in questioning or directly in argument -- that Mr. Bad Horse was

the culprit, despite the substantial evidence that pointed to

such a conclusion. At trial, there was no mention of the

statement of Iva Lee Finch, a key prosecution witness, who said

that on the night of the killing she overheard Travis Holliday

tell Paul Bad Horse "that he shouldn’t have done what he did, or

hurt this other person," and Paul Bad Horse replied that, "Oh

well. I had to do it.”

Petition App.

161-62.°

Mr.

Adams

refused to use this statement or even to investigate whether Mr.

Bad Horse was involved in the killing.

Moreover, Mr.

Adams refused to use evidence of

Petition App.

Paul

Horse’s involvement that came to light as a result of tne

prosecution’s witnesses.

evidence that Paul Bad Horse obtained the knife used to

rope that bound the victim, Trial transcript (Tr.

Vuk

163.

Bad

At trial, the prosecution elicited

the

153-54, and possessed that weapon when he was arrested on April

6, 1975, Tr. trans. at 48-49, 319-20. Mr. Bad Horse had planned

the "Safeway job" months prior to the crime. Tr. trans. at 195

He was familiar with the isolated area where the victim was

found. In contrast, Bernard Fitzpatrick was completely ignorant

of Hardin and the surrounding areas. Tr. trans. 51-53 (victim's

vehicle found in remote area, one that required some knowledge of

the terrain), 198 (Mr. Bad Horse familiar with the ‘ocation of

the victim’s car), 266 (Mr. Fitzpatrick and Mr. Radi no. familiar

with the area). Upon his arrest, Paul Bad Horse immeciate.:y

arranged with Edwin Bushman to create a false alibi, Tr. trans

at 180, 333, and to remove any traces of incriminating evidence

from Mr. Bushman's car, Tr. tra at 225-27 Ms. Finch heard

Mr. Bad Horse and Mr. Holliday discussing a gun, Tr. trans. at

328-29, and even Edwin Bushman testified that Paul Bac Horse nhac

handled the gun seen at Gary Radi’s house, Tr. trans. at 204.

In addition to that, the conflict precluded Mr. Adams trom

even considering putting Mr. Bad Horse on the ¢.ar® to elicit his

testimony about the crime. Nor, as he admitted, coud ‘1.

consider calling Travis Holliday to implicate him along with Bad

> Iva Lee Finch’s statement was documented in an interview

with the Hardin sheriff's office. Mr. Adams’ triai flie

contained a copy of this statement. Petition App. 158 Although

at the post-conviction hearing Mr. Adam did not specifically

recall the statement, he did admit that ijf it was in the case

file, I undoubtedly saw it. Petition App. 158

Horse. The conflict thus foreclosed exploration of the most

likely alternative explanation for Monte Dyckman’s death -- that

he was killed by these men, and Edwin Bushman, not Bernard

Fitzpatrick and Gary Radi. It is far from clear that explanation

“would have been a lie” -- another jury apparently accepted it in

acquitting Gary Radi of this crime.

Under such circumstances, the Court of Appeals’ conclusion

that Mr. Adams’ possession of confidential information created a

conflict of interest was compelled by well-established law.°

The state courts rejected respondent’s claim, not because of

any factual finding, but because they did not recognize the

constitutional implications of successive representation and the

roie that confidential communications can have on subsequent

representation. In denying respondent post-conviction relief,

the trial court said as much: "As a result of the first trial,

Bad Horse had been acquitted of the charges of deliberate

homicide and aggravated kidnapping, so that at the time of

petitioner’s trial in 1978, there was no basis for any possible

conflict of interest as to petitioner’s position with respect to

* See, e.g., Holloway v. Arkansas, 435 U.S. 475, 490

(1978) ("{I]n a case of joint representation of conflicting

interests the evil .. . is what the advocate finds himself

compelled to refrain from doing, not only at trial but also as to

pretrial plea negotiations and in the sentencing process." )

(emphasis in original); Mannhalt v. Reed, 847 F.2d 576, 580 (9th

Cir.) ("In successive representation, conflicts of interest may

arise if the cases are substantially related or if the attorney

reveals privileged communications of the former client or

otherwise divides his loyalties"); cert. denied, 109 S. Ct. 260

(1988); United States v. Wheat, 813 F.2d 1399, 1402 (9th Cir.

1987) ("The mere possession of a former client’s and

codefendent’s privileged communications poses the precise

potential for conflict ... ."), aff‘d, 486 U.S. ___, 108 S. Ct.

1692, 1697, 100 L.Ed.2d 140, 149 (1988) ("we have recognized that

multiple representation of criminal defendants engenders special

dangers of which a court must be aware"); United States v.

Agosto, 675 F.2d 965, 971 (8th Cir.) ("A major course of

conflicts in both successive and multiple representation cases is

the attorney’s receipt of privileged information form a witness

or codefendant."), cert. denied, 459 U.S. 834 (1982); United

States v. Martinez, 630 F.2d 361, 363 (5th Cir. 1980), cert.

denied, 450 U.S. 922 (1981).

such charges.” Fitzpatrick v. State, No. 1107-C, slip op. (Mont.

Dist. Ct. Sept. 1, 1982), reprinted in Petition App. 187, 222.

The Montana Supreme Court rejected the claim by a similar non

sequitur: "[(AJs a result of the first triai, Bad Horse had been

acquitted of the charges of deliberate homicide and aggravated

kidnapping. Clearly he cannot be tried again for those same

charges in this case. Consequently, we find petitioner’s

argument totally witnout merit.” Fitzpatrick v. State, 671 P.2d

1, 12 (Mont. 1983), reprinted in Petition App. 226, 251.

Petitioner’s statement that "Adams had no reason to protect

Bad Horse regarding those charges at Fitzpatrick’s second trial,"

Petition 13, evidences the same misunderstanding of the issue as

the state courts had. It also ignores Mr. Adams own testimony

about his trial strategy, and his continuing protection of Bad

Horse’s interests when questioned in this case. Right or wrong,

Mr. Adams felt himself unable to implicate Mr. Bad Horse in the

crime -- and even today will not disclose the confidential

informetion that shaped his opinion of Paul Bad Horse’s

involvement.

The Court of Appeals concluded that the conflict adversely

affected Mr. Adams’ representation of respondent, because his

trial strategy was dictated by his belief that Paul Bad Horse was

not involved in the killing. The historical facts supporting

this conclusion are undisputed by the state courts, and

indisputable on this record. Mr. Adams, at the post-conviction

hearing, admitted that his belief in Paul Bad Horse’s innocence

affected his defense of respondent: he refused to present any

defense that pointed to Mr. Bad Horse as perpetrator of this

crime "for the reason it would have been a lie.’ Petition App.

163. Mr. Adams’ took this position because of his philosophy of

criminal defense, which gave controlling importance to his

beliets regarding the client’s guilt or innocence in shaping his

approach to a case:

Attorneys today have the belief that their job is to

defend a client. They are to represent a client to the

best of their ability, to insure that his rights at

every stage of the proceeding are protected. But they

should never lose sight of the fact that a court of law

is a court where truth is sought and should be brought

forward. Answers and questions should not infer

incorrect inferences. The attorney is neither honest

with himself nor honest with the public nor honest with

his profession if he tries to do so. .. . My approach

to a problem is, if the client is innocent, I’1ll go to

hell for him, including going to jail, if necessary, to

try and protect him. If my client has, for reasons

that I won’t divulge, left me with the belief that he

may be guilty, I will still make the state prove its

charge, because that is our constitutional right, that

is the system on which this government has been based,

and I do my very best under such circumstances to see

that he is protected in every stage of the proceeding,

by objection, by answer, by argument and by otherwise,

and to test to the fullest of my ability the truth and

reliability of any statements that are put on the

witness stand.

Petition App. 166-67.

Petitioner’s final criticism focuses on this statement by

the Court of Appeals: “Fitzpatrick’s defense was that he did not

commit the crimes; rather, Bad Horse, Bushman and Holliday did.

Thus, Fitzpatrick’s defense theory was in direct conflict with

that of Bad Horse." Fitzpatrick v. McCormick, 869 F.2d at 1252.’

Petitioner apparently sees no conflict between Bad Horse’s denial

of involvement in the crime, and the presentation of evidence

that he committed it. The Court of Appeals can hardly be faulted

for failing to read such illogic into the state courts’

decisions. In any event, the question is not whether there was a

factual conflict between the two suspects’ assertions regarding

the events, but whether there was a legal conflict between their

interests in defending against the charges. That is obviously an

’ Petitioner’s argument paraphrases the Court of Appeals’

statement, inverting its references to Mr. Fitzpatrick’s

"defense" and his “defense theory.” Petition 13. By so doing,

it confuses the Court of Appeals’ distinction between the defense

that would have been recognized and presented by an attorney

unfettered by conflicts, and the defense Mr. Adams actually put

on at the Fitzpatrick trial.

issue of law, not fact, Cuyler v. Sullivan, 446 U.S. at 342, on

which deference to the state courts was neither necessary nor

proper.

Petitioner fails to demonstrate any error in the Court of

Appeals’ decision, or reason to review its judgment.

II.

THE COURT OF APPEALS’ DOUBLE JEOPARDY DECISION

IS INCONTESTABLY CORRECT, AND PRESENTS NO GOOD

OCCASION TO EXPAND THE NONRETROACTIVITY PRINCIPLES

OF TEAGUE V. LANE, 109 S. Ct. 1060 (1989).

At Bernard Fitzpatrick’s first trial, the trial judge

refused to’impose a death sentence for the crime of deliberate

homicide and instead imposed a 100-year prison sentence. The

Montana Supreme Court reversed this conviction and sentence.

State v. Fitzpatrick, 569 P.2d 383 (Mont. 1977). At the retrial,

the State did not present any additional factors in aggravation

or any evidence disputing the existence of mitigating

circumstances presented at the first trial. Nevertheless, the

trial court sentenced Mr. Fitzpatrick to death for the crime of

deliberate homicide.

The Court of Appeals below held that the acquittal of the

death sentence for deliberate homicide in the first trial

precluded a death sentence upon retrial. In doing so, the court

relied on well-established double jeopardy rules and, in

particular, this Court’s decision in Builington v. Missouri, 451

U6, £30 (2981).

Petitioner argues that Bullington constituted a new rule of

criminal procedure and thus cannot be applied to any case final

at the time Bullington was announced. Petition i8 (citing Teaque

v. Lane, 489 U.S. __, 109 S. Ct. 1060 (1989)). Although the

parameters of the Court’s recent Teague decision are yet

undefined, this case presents a poor opportunity to clarify them,

for several reasons.

First, the double jeopardy issue here presents no real

controversy, unless the Court were to grant certiorari and

reverse the Court of Appeals’ unanimous decision on the

ineffective assistance of counsel issue. As we have demonstrated

above, there is no reason to do so.

Second, petitioner’s failure to raise this theory of

nonretroactivity in either the District Court or the Court of

Appeals should preclude granting the writ of certiorari to

examine it. As Justice Blackmun noted in Zant v. Moore, 489 U.S.

___, 109 S. Ct. 1518, 1519 (1989) (Blackmun, J., dissenting),

when nonretroactivity is not raised as a defense to a claim of

federal habeas corpus relief, the defense should be deemed

waived.®

The general rule is that the failure to raise a defense in

the district court -- either by answer or by motion -- acts as a

waiver. See, e.q., 5 C. Wright & A. Miller, Federal Practice and

Procedure § 1394, at 872 (1969) ("A defense that has not been

raised in a pleading, by motion, or at trial normally will be

considered waived and cannot be the subject of an amendment after

judgment or be heard for the first time on appeal.") (footnote

omitted). This principle is all the more applicable in cases,

such as this, in which a state with its significantly greater

resources can withhold defenses until later stages of litigation

and appeal in the hopes of wearing down a habeas corpus

petitioner or finding a sympathetic forum.

There is no reason ordinary waiver rules should not be

® petitioner obviously does not argue that respondent is

requesting the creation of a “new" rule of double jeopardy, as

Bullington was decided in 1981. Thus, unlike the situation in

Teague, petitioner here knew of Bullington and should have raised

any nonretroactivity defense in April 1984 when it filed its

answer to respondent’s petition for a writ of habeas corpus -- or

at least in the Court of Appeals, where this case was pending

when Teague was decided.

applicable when the defense is nonretroactivity of a particular

claim. In large measure, the doctrine of nonretroactivity was

designed *o protect against undue federal interference with state

functions. See, e.g., Teaque v. Lane, 109 S. Ct. at 1073-75. In

similar situations, when the state fails to raise such comity

concerns as a defense, a federal court retains the authority to

grant habeas relief. Granberry v. Greer, 107 S. Ct. 1671 (1987).

The failure of a state to raise a defense based on comity

principles should be treated as a waiver of the defense. See

Engle v. Isaac, 456 U.S. 107, 124 n.26 (1982) (dictum).

Third, to apply Teague in this case would be to engage in

precisely the same sort of selective application of new rules

that Teague condemned. As the plurality opinion in Teague

recognizes, "'’selective application of new rules violates the

principle of treating similarly situated defendants the same.’ "

109 S. Ct. at 1072 (quoting Griffith v. Kentucky, 479 U.S. 314,

323 (1987)). It should not matter whether that selective

application occurs on direct appeai or in post-conviction

proceedings. Indeed, the central premise of Teague, which the

Teague plurality expressly predicated on Griffith v. Kentucky,

479 U.S. 314 (1987), and Griffith’s endorsement of Justice

Harlan’s view in Desist v. United States, 394 U.S. 244 (1969),

and Mackey v. United States, 401 U.S. 667 (1971), see Teague, 109

S. Ct. at 1072-73, is that the very “nature of judicial review

precludes us from ‘[sJimply fishing one case from the

stream of appellate review, using it as a vehicle for pronouncing

new constitutional standards, and then permitting a stream of

Similar cases to flow by unaffected by that new rule.” Griffith,

479 U.S. at 323, quoting Mackey, 401 U.S. at 679 (separate

Opinion of Harlan, J.).

It could not be squared with this principle to deny

respondent the relief awarded to Bullington simply because this

Court decided to grant Bullington’s petition for certiorari and

to deny Bernard Fitzpatrick’s petition on the same day, although

each challenged the imposition of the death penalty after a

successful appeal of a prison sentence.’ The Court might have

well granted respondent’s petition and denied Bullington’s, or

granted them both. Why the Court did not is a product of the

considerations governing certiorari jurisdiction --

considerations which, as the Court has repeated stated, have

nothing to do with the merits of cases. Such a decision,

responding to nothing more than the "practical . . . [reality

that the Court] cannot hear each case pending on direct review, "

Griffith, 479 U.S. at 323, cannot rationally be given the effect

of subjecting respondent to a different constitutional regime

than Mr. Bullington, his exactly contemporary certiorari

petitioner, if similarly situated defendants are to be treated

the same.

Fourth, for similar reasons, Teague would not bar relief

because the principles applied in Bullington did not "break[] new

ground or impose[]) a new obligation" on the State of Montana.

Teague, 109 S. Ct. at 1070. Rather than create a new rule or

place a new obligation on the States, Bullington simply applied

established double jeopardy principles to the capital sentencing

_ context. The Bullington holding rested on principle that "an

acquittal on the merits by the sole decisionmaker in the

proceeding is final and bars retrial on the same charge."

Arizona v. Rumsey, 467 U.S. 203, 211 (1984). In doing so, the

® On May 21, 1980, respondent filed a Petition for a Writ

of Certiorari seeking review of the Montana Supreme Court's

decision affirming this death sentence. That petition

specifically raised whether the imposition of the death sentence

following the original sentence of 100 years imprisonment

violated North Carolina v. Pearce, 395 U.S. 711, 725 (1969). On

October 6, 1980, this Court denied respondent’s petition.

Fitzpatrick v. Montana, 449 U.S. 891 (1980). That same day, this

Court granted certiorari in Bullington v. Missouri, 449 U.S. 819

(1980).

Court in Bullington explicitly relied on a long series of cases

beginning at least as early as Green v. United States, 355 U.S.

184, 190 (1957), in which the Court held that the Double Jeopardy

Clause bars retrial on greater charge following reversal on

appeal because defendant already had been "forced to run the

gantlet once on that charge."’® This reasoning was acknowledged

in North Carolina v. Pearce, 395 U.S. 711 (1969), where the Court

recognized that double jeopardy principles do not normally bar

the imposition of a greater sentence following a retrial, though

an increased sentence must be based on objective conduct of the

defendant occurring after the original proceeding. Id. at 717.

Finally, the double jeopardy issue this case presents is one

which would fall clearly within Teague’s exception for legal

principles that place "’certain kinds of primary, private

individual conduct beyond the power of the criminal lawmaking

authority to proscribe’" or “requires observance of ‘those

procedures that... are “implicit in the concept of ordered

liberty."’" Teague, 109 S. Ct. at 1073 (quoting Mackey, 401 U.S.

at 693 (separate opinion of Harlan, J.), quoting Palko v.

Connecticut, 302 U.S. 319, 325 (1937) (Cardozo, J.)). As the

Court recently made clear in Penry v. Lynaugh, 57 U.S.L.W. 4958,

4965 (U.S., June 26, 1989), Teague’s first exception "“cover[s]

not only rules forbidding criminal punishment of certain primary

conduct but also rules prohibiting a certain category of

punishment for a class of defendants because of their status or

offense."

The operation of the Fifth Amendment’s Double Jeopardy

Clause in respondent’s situation more closely resembles a rule

The Bullington Court’s explicit recognition that it was

not creating a new rule of law is instructive: the majority said

directly that it was "refrain{ing] from extending the reasoning

of Stroud v. United States, 251 U.S. 15 (1919), to this very

different situation." 451 U.S. at 446.

placing "’certain kinds of primary, private individual conduct

beyond the power of the criminal law-making authority to

proscribe,’" than it resembles an ordinary rule of criminal

procedures. Just as the Speech and Debate Clause, art. Il, § 6,

cl. 1, for example, gives an individual the right not to be

subjected to criminal prosecution for certain conduct, see

Eastland v. United States Servicemen’s Fund, 421 U.S. 491, 502-03

(1975), the Double Jeopardy Clause gives an individual the right

not to be subjected to a capital prosecution after the punishment

of death has once been rejected by a sentencer. Bullington v.

Missouri. In both situations, the constitutional rule goes to

whether the defendant can be tried at all under the

circumstances, not merely to the procedures to be used for trying

him.

This fundamental difference between the prohibitions of the

Double Jeopardy Clause and most other criminal-procedure

guarantees’’ is no novelty of Twentieth Century constitutional

jurisprudence. For centuries, the prohibition against double

jeopardy has been viewed as going to the jurisdiction of the

criminal court. For this reason, habeas corpus relief was

available for Double Jeopardy Clause claims at a time when habeas

was strictly limited to jurisdictional matters, long before the

expansion of the scope of federal habeas to non jurisdictional

constitutional claims or the expansion of the Due Process Clause

1 pretrial rulings on double jeopardy claims are

interlocutorily appealable, e.g., Bullington v. Missouri, (as are

Speech and Debate Clause claims, see Helstoski_ v. Meanor, 442

U.S. 500 (1979)), whereas pretrial rulings on ordinary criminal

procedure issues are not, see, e.g., United States v. MacDonald,

435 U.S. 850 (1978). Moreover, "a plea of guilty to a charge

does not waive a claim that -- judged on its face -- the charge

is one which the State may not constitutionally prosecute"

consistently with the Double Jeopardy Clause, Menna v. New York,

423 U.S. 61, 63 n.2 (1975) (per curium); see United States v.

Broce, 488 U.S. __, 109 S. Ct. 757, 765-76 (1989), although a

plea of guilty waives ordinary criminal-procedure claims, see,

e.g., McMann v. Richardson, 397 U.S. 759 (1970)

by incorporation of the Bill of Rights. See, e.g., In re Neilson,

131 U.S. 176, 182-85 (1888) (double jeopardy claim entitled to

habeas corpus relief); Ex parte Lange, 85 U.S. (18 Wall.) 163

(1874) (same).

This is of particular significance in light of Teaque’s

determination that the "’relevant frame of reference .. . [for

retroactivity decisions] is not the purpose of the new rule whose

benefit the (defendant) seeks, but instead the purposes for which

the writ of habeas corpus is made available.’" 109 S. Ct. at

1072 (quoting Mackey, 401 U.S. at 682 (separate opinion of

Harlan, J.)). The reason for the maxim that "habeas corpus will

not do service for an appeal” -- and the reason for Teaque’s

retroactivity rules -- was to preserve the finality of criminal

judgments. Yet Double Jeopardy Clause claims were an

acknowledged exception to the maxim and they cannot be logically

less of an exception to Teaque’s general rule of nonretroactivity

of ordinary criminal-procedure claims.

Teaque also recognized that nonretroactivity principles

would not apply to “procedures that .. . are ‘implicit in the

concept of ordered liberty,’" 109 S. Ct. at 1073, particularly

those whose purpose was to enhance accuracy in the criminal

justice process would fall within the exception. Id. at 1076-77.

The protection against double jeopardy qualifies as such a

procedure:

The underlying idea, one that is deeply ingrained in at

least the Anglo-American system of jurisprudence, is

that the State with all its resources and power should

not be allowed to make repeated attempts to convict an

individual for an alleged offense, thereby subjecting

him to embarrassment, expense and ordeal and compelling

him to live in a continuing state of anxiety and

insecurity, as well as enhancing the possibility that

even though innocent he may found guilty.

Green, 355 U.S. at 187-88; see also Crist v. Bretz, 437 U.S. 28,

35 (1978). As the Court recognized in Bullington, the Double

Jeopardy Clause operates to ensure accuracy in death penalty

sentencing context: "The ‘unacceptably high risk that the

(prosecution), with its superior resources, would wear down 4

defendant,’ thereby leading to an erroneously imposed death

sentence, would exist if the State were to have a further

opportunity to convince a jury to impose the ultimate

punishment." 451 U.S. at 445-46 (quoting United States v.

Francesco, 449 U.S. 117, 130 (1980)).

For all these reasons, petitioner’s last ditch resort to

Teague is unavailing, either to establish error in the Court of

Appeals’ judgment ,’? or to create grounds for this Court’s

review.

2 petitioner's argument that Arizona v. Rumsey does not

control here because Montana's death sentencing scheme differs

from Arizona’s in a few trivial respects is simply frivolous.

The niceties of the applicable evidentiary rules, and the length

of potential sentences of imprisonment had nothing to do with the

Court’s judgment in Rumsey. The Court in Rumsey made it crystal

clear that the touchstone of Double Jeopardy law in this area is

“an acquittal on the merits of the central issue in the

proceeding -- whether death was the appropriate punishment for

respondent's offense." 467 U.S. at 211.

Petitioner’s last point is similarly directly controlled by

Rumsey. Even if it were true -- as the second sentencing judge

assumed, but the first did not say -- that the original prison

sentence resulted from "misgivings about the death penalty

statute then in effect," Petition 21, "[rJeliance on an error of

law . . . does not change the double jeopardy effects of a

judgment that amounts to an acquittal on the merits." 476 U.S.

at 2ii.

CONCLUSION

For all these reasons, the petition for certiorari to review

the unanimous judgment oi the Court of Appeals should be denied.

Respectfully submitted,

Wrecbal NAMUMNEC

MICHAEL LAURENCE*

ACLU FOUNDATION OF

NORTHERN CALIFORNIA

1663 Mission Street

Suite 460

San Francisco, CA 94103

(415) 431-3472

TIMOTHY K. FORD

MACDONALD, HOAGUE

& BAYLESS

705 Second Avenue

Fifteenth Floor

Seattle, WA 98104

(206) 622-1604

APPENDIX

Deposition of John Adams, page 42

1982 Post-Conviction Hearing Transcript, Volume III

Examination of John Adams by Mr. Maynard, page 437

Examination of John Adams by Mr. Maynard, page 439

| was held the case was remanded almost six months, or very

That was postponed for some time, then after that hearing

Close to six months, after it had been initially decided,

because of the delay. Or 1 say six months. It wasn't that

long. About three and a half months after it was decided.

And I think it came down in the fall November, I believe

And then I was appointed shortly after that, after I had

withdrawn as Mr. Bad Horse's attorney.

Q. Now, you indicated that you thought you met once

Or possibly more than once around that Christmastime when

you first met with Mr. Fitzpatrick at that point, did you

discuss with him any possibility of a conflict of interest

in your representation between him and Mr. Paul Bada Or se

A No longer rep > Mr. Bad Horse, there was

no conflict There never had been before

0 So you i "t @i8cuss that with hic

A No, Sif.

0. Do y recall what is¢ t - ¢

meeting? I know it's a long time age

A Well, to be frank wit ,» we x é

acquaintanceship for a brief time, sat there and visite

about other things. I told him Id had talked to Mr. Né ,

Knew pretty much what his position was, aske t ee, ye

wasn't true and this wasn't true. Fitz saicg he Aad a ioet ¢%

30 over with me, and a great deal t go over with me, and

-4?-

APP. 1

_— ——

crime? In other words, prior to April 5th, 1975, did you

know Paul Bad Horse, Jr.?

A Well, it sounds strange but I knew Paul Bad Horse,

Jr. I knew Mr. Holliday. Probably Mr. Holliday less than

Mr. Bad Korse or Mr. Radi or Mr. Bushman. I knew all of

them. Fersonally.

c How long had you known Mr. Bad Horse?

A. Mr. Bad Horse, probably a year and a half, two

years.

0 How long had you known Mr. Holliday?

B. Well, Mr. Holliday I had known over the years,

but, as I stated, I had no real association with Mr. Kollicay

I had known Mr. Holliday maybe -- His father was a minister

here in Billings, and his mother, I have even known them --

well, since he was a

Q You

then.

h. Well, I had

Q Dic you kno

a boy?

A Yes. I had

thereabouts

Q How about

—_—-

Ar.

A. I had met Mr.

known

~ ¢hat I had

Radi?

Radi as a prosecutor

and I ha

d met

Mr. Radi after I had entered private practice, so I did know

\°

APP .: 02

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CERTIFICATE OF SERVICE

I declare that I am employed in the County of San Francisco,

California. I am over the age of eighteen years and not a party

to the within-entitled cause; my business address is 1663 Mission

Street, Suite 460, San Francisco, California 94103. On August 3,

1989, I served the attached BRIEF FOR RESPONDENT IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT and MOTION FOR LEAVE TO PROCEED IN

FORMA PAUPERIS in said cause by placing one true copy thereof

enclosed in a sealed envelope with postage thereon fully prepaid,

in the United States mail at Washington, D.C., addressed as

follows:

Kathy Seeley

Assistant Attorney General

State of Montana

Justice Building

215 North Sanders

Helena, MT 59620-1401

I declare under penalty of perjury that the foregoing is

true and correct. Executed this third day of August 1989, at

Washington, D.C..

Aes Bo

—“Tilee PF fA faite ihsrt

Michael Laurence

RECEIVED

HAND DEL!VERED

AUG - 7 1989

OFFICE OF THE CLERK

SUPREME COURT, U.S.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.