Opposition Brief — Keeney v. Tamayo-Reyes

ORIGINAL oo

- iad FILED

| oe ae Go-/957 . JUL

OFFICE Ur 1 i

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1990

JOSE TAMAYO REYES,

Petitioner-Appellant,

Vv.

EDITOR'S NOTE J.C. KEENEY, Superintendent,

— . . Oregon State Penitentiary,

THE FOLLOWING PAGES WERE POOR HARD Cory

\? THE TIME OF FILMING, IF AND WHEN A Respondent -Appellee.

BETTER COPY CAN BE OBTAINED, A NEW FICTIF

WILT Be ISSUED,

On a Petition for a Writ of Certiorari to

the United States Court of Appeals

for the Ninth Circuit Eee. ee

RECEIVED

BRIEF IN OPPOSITION JUL - 1 199]

SUPREME COURT, U.S

_-_

OFFICE OF THE CLERK :

Steven T. Wax

Federal Public Defender

851 SW Sixth Avenue, Suite 1375

Portland, Oregon 97204

Attorney for Retiationer-Appellant

Page

Ruthorities . . .« « « « eee ‘ ‘ myer Wn tee We ks oe ay ii

Question Presented for Review... . oe vee eo eo SSS

Statement of the Case ..... "St on ee ee oe ‘-é-S, 6-388

Argument “Ty ee ek ee ee a ee oe en or Ge

A. The United States Court of Appeals for the Ninth

Circuit properly resoived the issues in Mr. Tamayo-

Reyes case regarcing the right to a hearing on the

question of whether the mens rea element of

manslaughter in the first degree was properly explained

SUPREME COURT CASES

’

372 U.S. 391 (1963)

477 U.S. 399 (1986)

’

426 U.S. 637 (1976)

Murray V. Carrier ’

477 U.S. 478 (1986)

U.S. _, 113 L.Ed.2d 517 (1991)

5 ae ee ee ee er ee er ee ee er ; '

sylv Vv nley,

B. The standard set out in Townsend for determining when 481 U.S. 551 (1987)

an evidentiary hearing should be ordered in a federal

habeas corpus action has not been changed. ..... .4 W ’

372 U.S. 293 (1963)

Cc. The state's analysis is flawed in several important : ;

Pee 6 ee 6-« 6 & 51s 6-6 @ ee 6 ae ee Se e- &e Wainwright v. Sykes,

433 U.S. 72 (1977)

Conclusion 9

Ceostitieste ef Serwice ..ssscesneesvevusevsvesscse 3

: STATUTES AND RULES

28 U.S.C. 2243.

26 U.S.C. 33834 «ce ce eevveevesvseseseseseesesees

Rules 6-8 of the Rules Governing Section 2254

Cases in the United States District Courts. .

OTHER

Liebman, i

Vol. 1, pp. 286-287 (1988) . . . 2. «© «© «= © « »

Yackle, = icti j Vv

at 147-149 (1991) . . . . . . . . . . . . . .

i ii

QUESTIONS PRESENTED FOR REVIEW

WHETHER A FEDERAL HABEAS CORPUS PETITIONER IS ENTITLED TO AN

EVIDENTIARY HEARING WHEN THE STATE RECORD REVEALS THAT

CRITICAL FACTS WERE NOT ADDUCED IN THE STATE COURT BECAUSF

HIS COUNSEL WAS INADEQUATE.

iii

90-35315

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1990

JOSE TAMAYO-REYES,

Petitioner-Appellant,

J.C. KEENEY, Superintendent,

Oregon State Penitentiary,

Respondent-Appellee.

ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF IN OPPOSITION

STATEMENT OF THE CASE

Mr. Tamayo-Reyes is a Cuban immigrant with virtually no

education. He is unable to read, write or speak English. Mr.

Tamayo-Reyes wus charged with intentional murder after a fight in

a tavern. Mr. Tamayo-Reyes eventually changed his plea from not

guilty of murder to no contest to manslaughter. At that

proceeding Mr. Tamayo-Reyes was represented by an attorney who

utilized the services of a Spanish speaking interpreter. The

plea form which was utilized was written in English. Although

the interpreter spoke Spanish, he was inexperienced as an

interpreter. He did not translate every word. His method of

interpreting was to just tell Mr. Tamayo-Reyes what was

happening.

During the change of plea hearing, Mr. Tamayo-Reyes stated

that he did not understand. When asked whether he chose to waive

his rights and plead no contest, Mr. Tamayo-Reyes equivocated.

An off the record discussion was held after which the interpreter

responded, “okay." |

Mr. Tamayo-Reyes subsequently challenged the validity of the

plea. He has maintained throughout the state and federal

proceedings that he did not understand the nature of the

proceedings, or understood the nature of the charge which was

being discussed or that he was pleading guilty or waiving a

trial. In the state post-conviction proceedings counsel

attempted to make a record of the inadequacy of the

interpretation during the plea proceeding to establish that Mr.

Tamayo-Reyes did not understand what was taking place. The

magistrate, district court and the Ninth Circuit all acknowledged

that the efforts of counsel in the state post-conviction

proceeding to establish a record were "woefully inadequate (app-

23)."' Judge Trott, after a thoughtful analysis, concluded that

Mr. Tamayo-Reyes was entitled to an evidentiary hearing in order

to prove his claims. .

' "app" refers to the appendix to the state's petition.

2

ARGUMENT

The state's petition for a writ of certiorari should be

denied for several reasons. First, the opinion of the court

below is well-reasoned and properly resolved the issues. Second,

the state urges this Court to ignore settled precedent on the

rules applicable in determining whether a habeas corpus

petitioner is entitled to an evidentiary hearing in federal

court. The cases from this Court and the circuits which have

addressed the issue are in agreement on the standards to be

employed. Third, the state's analysis is flawed in several

important respects.

A. The United States Court of Appeals for the Ninth

Circuit properly resolved the issues in Mr. Tamayo-

Reyes case regarding the right to a hearing on the

question of whether the mens rea element of

manslaughter in the first degree was properly explained

to hin.

The court below reached its conclusion that Mr. Tamayo-Reyes

is entitled to a federal evidentiary hearing only after detailed

and cogent analysis. The opinion carefully explored the law of

habeas corpus before addressing the facts of Mr. Tamayo-Reyes'

case. The result reached by the court is compelled by the facts

of this case and precedent.

Mr. Tamayo-Reyes is an immigrant of limited education and no

English skills. He was found guilty of manslaughter on a plea of

nolo contendere. He never admitted his guilt. The proceedings

which resulted in his conviction were interpreted for him by an

individual who had limited experience in interpreting. The

interpreter did not carry out his functions in a professional

3

manner; he did not translate directly for Mr. Tamayo-Reyes.

Instead, he merely told him what was going on. The finding of

guilty of manslaughter was entered after Mr. Tamayo-Reyes had

denied guilt, stated that he did not understand, completed a form

which included a request to consider the testimony of witnesses,

and did not have the elements of manslaughter explained to him.

See Henderson v. Morgan, 426 U.S. 637 (1976).

Mr. Tamayo-Reyes federal claims are the same as those

presented in the state post conviction proceedings. In state

court, the attorney assigned to represent him failed in his

responsibilities to adequately develop the factual record in

Support of the claim. No expert witness was called. The

interpreter was not asked how he had translated several critical

terms; indeed, he was not even called as a witness. The

defendant was not asked "any question relevant to the claim."

Judge Trott carefully noted counsel's failings in the opinion

below (app. 21-22).

The failings of counsel and inadequacy of the record in this

case are indistinguishable from the failings which were held to

require a federal evidentiary hearing in Townsend v. Sain, 372

U.S. 293 (1963).

B. The standard set out in Townsend for determining when

an evidentiary hearing should be ordered in a federal

habeas corpus action has not been changed.

The state argues that the Ninth circuit's holding regarding

the Townsend standard is incorrect (pet. 9). The court below

correctly stated the legal standard. In Townsend, the Court

adopted the "inexcusable neglect" standard set out in Fay v.

Noia, 372 U.S. 391 (1963), for use in determining whether an

evidentiary hearing should be ordered in a federal habeas corpus

petition. The holding in Townsend remains sound.

In Wainwright v. Sykes, 433 U.S. 72 (1977), the Court

limited the situations in which the inexcusable neglect standard

of Fay v. Noia was applicable. There the Court held the "cause

and prejudice" test would be applied to determine whether a

habeas petitioner's procedural default in state proceedings would

be excused. Wainwright v. Sykes did not address the question

presented in Townsend of the standard to be used to determine

whether an evidentiary hearing should be held in federal court.

The Court did, however, cite Townsend approvingly in discussing

the duty of federal courts to hold hearings "notwithstanding the

prior resolution of the issues in state court." Wainwright v.

Sykes, 433 U.S., at 80.

The continuing validity of the Fay v. Noia standard in other

contexts is reflected in several recent cases. In Ford v.

Wainwright, 477 U.S. 399 (1986), the Court explicitly applied and

relied on Townsend in holding that a federal evidentiary hearing

was required. The same term, in Murray v. Carrier, 477 U.S. 478

(1986), the Court addressed, inter alia, the contention that it

was inappropriate to employ the cause and prejudice test to

procedural defaults which occur on appeal. The Court examined

the applicability of the Fay v. Noia standard and held that, on.

the facts presented it would not be applicable. Murray v.

Carrier, 477 U.S., at 492. The Court expressed no opinion as to

whether the Fay v. Noia standard might be applicable in a case in

which no appeal at all was taken. More recently in McCleskey v.

Zant, _U.S.___- 113 L.Ed.2d 517 (1991), the Court considered the

standard applicable in considering when a successive habeas

corpus petition should be permitted. The Court concluded that

the abuse of the writ doctrine “implicates nearly identical

concerns" as the doctrine of procedural default and that cause

and prejudice must be shown before a successor petition should be

permitted. In reaching that conclusion, the Court examined the

various potentia] standards. The discussion reveals the

continuing validity of Fay v. Noia in some contexts. There is no

split in the circuits on the use ofethe Townsend and Fay v. Noia

standards in the situations present in Mr. Tamayo-Reyes' case.

See Yackle, - victi i iv at

147-149 (1991); Liebman, a S us a

Procedure, Vol. 1, pp. 286-287 (1988).

C. The state's analysis is flawed in several important

respects.

“™- The analysis presented in the state's petition for a writ of

certiorari is flawed in several important respects. At pages 7-9

of their petition, the state discusses principles of comity and

raises concerns about proliferation of evidentiary hearings if

the Townsend standard is applied. The state's argument ignores

the fact that the Townsend standard has been followed throughout

the country for more than two decades. There is no evidence that

it has led to a proliferation of evidentiary hearings in habeas

6

it has led toa proliferation of evidentiary hearings in habeas

corpus cases. To the contrary, all indications are that

evidentiary hearings are the exception rather than the rule. See

Liebman, supra, at 261 and sources cited therein. The state is

asking the Court to change the law to address a "problem" that

does not exist.

The state's argument misconstrues the nature of the writ of

habeas corpus. Habeas proceedings are not appeals. They are,

rather, intended to include evidentiary hearings. See, e.g.,

° v. Wainwright, supra 477 U.S., at 410; 28 U.S.C. 2243, 2254

(ad); Rules 6-8 of the Rules Governing Section 2254 Cases in the

United States District Ccarts.

Contrary to the state's argument, the Courts and Congress

have given a great deal of deference to the states in structuring

the habeas corpus remedy. No additional protection is needed in

the form of a rule further limiting federal evidentiary hearings.

The presumption of correctness incorporated in 28 U.S.C. 2254 (d)

directly addresses significant federalism concerns. The statute

strikes an appropriate balance between the interests of ‘the

states and the responsibilities of the federal courts in

examining the constitutional validity of state convictions. When

hearings are granted under the Townsend standard, the interests

of the states are well protected.

The state's reference to Pennsylvania v. Finley, 481 U.S.

551 (1987), misapprehends its import. That case does not, as

the state asserts (pet. 9), prohibit a federal petitioner from

asking a federal court to ignore state fact findings on

collateral review because of counsel's negligence. To the extent

that Finley deprives state post-conviction petitioners of counsel

or effective counsel it renders federal habeas review even more

important. The state's argument would severely undermine the

right to collateral review.

In arguing that Wainwright v. Sykes rejected the inexcusable

neglect standard (pet 9-11) the state confuses the different

policy considerations underlying the doctrine of exhaustion of

remedies and the riyht to a federal evidentiary hearing. Fay v.

Noia dealt with the question of procedural default in the state

courts. Wainwright v. Sykes rejected its standard only in that

context. The requirement that a federal habeas petitioner avail

himself of state procedures is designed to ensure that the

interests of the states are protected and that the federal courts

do not unduly intrude in state proceedings. In Wainwright v.

Sykes the Court noted the critical distinction between the

requirement that federal petitioners comply with state procedural

rules and the right to have a hearing in federal court after such

compliance.

[I]t has been the rule that the federal habeas

petitioner who claims he is detained pursuant to a

final judgment of a state court in violation of the

United States Constitution is entitled to have the

federal habeas court make its own independent

determination on the merits of that claim reached in

the state proceedings. This rule of Brown v. Allen is

in no way changed by our holding today. Rather, we

deal only with contentions of federal law which were

not resolved on the merits in the state proceeding due

to respondent's failure to raise them there as required

by state procedure. (emphasis added).

#

Wainwright v. Sykes, 477 U.S., at 87. The state's analysis blurs

this distinction.

Finally, the position advanced by the state would read

subsection (3) out of 28 U.S.C. 2254 (d) and eliminate the fifth

of the Townsend situations in which a federal hearing is

required. Both the statute and Supreme Court precedent requires

federal hearings when one of a number of circumstances exist,

including a defective fact-finding procedure, failure of the

state fact-finder to address the merits of a claim, lack of

jurisdiction, or failure to provide counsel. These circumstances

describe situations which would fit within the definitions of

"cause" found in Murray v. Carrier, supra 477 U.S., at 488, "..an

objective factor external to the defense.." The circumstance

involving the failure to develop materiai facts addresses

concerns which should remain distinct and not be permitted to be

shown only when “external factors" are also present.

CONCLUSION

For all of the reasons set forth herein the states petition

for a writ of certiorari should be denied.

NW Go thn

Steven T. Wax

Attorney for Petitioner-Appellant

DATED this June 27, 1991.

) ee suai :

90-35315 Virginia Linder, Solicitor General

400 State Office Building

Salem, OR 97310

IN THE

Further, the original and one copy was mailed to the

SUPREME COURT OF THE UNITED STATES

Honorable William K. Suter, Clerk of the United States Supreme

OCTOBER TERM 1990

Court, by depositing them in a United States Post Office Box,

addressed to 1 First Street NE Washington, DC, 20543, for filing

JOSE TAMAYO REYES, : , ,

on June 27, 1991, with first-class postage prepaid.

Petitioner-Appellant,

y. DATED this June 27, 1991.

4

Cs -—Tt

J.C. KEENEY, Superintendent,

Ein, ~F . 7

Oregon State Penitentiary, = ’ =F LL “1

even T.Wax

Respondent-Appellee. Attorney for Petitioner-Appellant

SUBSCRIBED AND SWORN TO before me this June 27, 1991.

ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

Soe OFFICIAL SEAL

FOR THE NINTH CIRCUIT $828 ROSIN R. RUHAAK

\s3 21] NOTARY PUBLIC - CPEGON

COMMISSION NO. 006401

CERTIFICATE OF SERVICE AND MAILING COMMISSION EXPIRES AFR.L 28, 1995

Stw\jtr\p!

I, Steven T.Wax, counsel of record and a member of the Bar ae ae ae

eB a el — Po

of this Court, certify that pursuant to Rule 29.2, service has

been made of the within Brief In Opposition on the counsel for

the respondent by depositing in the United States Post Office at

Portland, Oregon on June 27, 1991, first class postage prepaid, a

certified true, exact and full copy thereof addressed to:

10 11

—_—- - * . ~ Mina

FEDERA™ PUBLIC DEFENDER FOR

THE DISTRICT OF OREGON

STEVEN T. WAX

Federal Public Defender

STEPHEN R. SADY - Chief Deputy

Paul S. Petterson

Steven Jacobson

Scott E. Asphaug

Colleen B. Scissors

Sandra J. Dixon

Rita J. Radostitz*

Bryan E. Lessicy*

“Eugene Branch Attorneys

June 27, 1991

The Honorable William K. Suter

Clerk, United States Supreme Court

1 First Street NE

Washington, DC 20543

Re: Jose Tamayo Reyes v. J.C. K

Dear Mr. Suter:

Reply: 851 SW Sixth Avenue

Suite 1375

Portland, OR 97204

(S03) 326-2123; FTS 423-2123

FAX: (503) 326-5524; FTS 423-5524

44 W. Broadway

Suite 406

Eugene, OR 97401

(503) 465-6937; FTS 425-6937

FAX: (503) 465-6975; FTS 425-6975

——

RECEIVED |

JUL - 1 1991

OFFICE OF THE CLERK

SUPREME COURT, US

YU

Enclosed for filing please find the original and one copy of

petitioner's Brief in Opposition in the above-referenced case.

Thank you for your attention to this matter.

Sincerely,

i

/

Steven T. Wax ULey

Federal Public Defender

STW: cm(supct. ltr)

Enclosure

cc: Virginia Linder, Solicitor General