Amicus Curiae Brief — Wright v. West

No. 91-542

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1991

ELLis B. WRIGHT, JR., Warden, et al.,

Petitioner,

VS.

FRANK ROBERT WEST, JR..,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Fourth Circuit

BRIEF AMICUS CURIAE OF THE

CRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF THE PETITION

FOR WRIT OF CERTIORARI

KENT S. SCHEIDEGGER

Criminal Justice Legal Fdn.

2131 L Street (95816)

Post Office Box 1199

Sacramento, California 95812

Telephone: (916) 446-0345

Attorney for Amicus Curiae

Criminal Justice Legal Foundation

QUESTION PRESENTED

May a federal court grant collateral relief merely because it

disagrees with the good faith, reasonable decision of the state

courts on a “mixed question,” i.e. the application of an

established legal standard to the undisputed historical facts.

(1)

TABLE OF CONTENTS

EEE Ee i

See iv

EE Eee I

eee 2

EE

EE eee 3

I

The same standard of review does not necessarily apply to all

eee 3

Gg Ss 5 5 6 tee ee th te ee 3

B. Allocation and decision makers ............. 6

EE eee 7

I]

Recent developments have undermined the basis for de novo

Sweewrae MGEOOISCiiw te Y

Il]

Estelle v. McGuire may affect the disposition of the petition in

ES SS DS 5 ge te et tt tt tt ew 13

EE eee 13

(iil)

IV

TABLE OF AUTHORITIES

Cases

Alabama v. White, 110 L. Ed. 2d 301,

SU RA ER rk ke he eee eee aewwees S

Benton v. Maryland, 395 U. S. 784, 23 L. Ed. 2d 707,

Tr Gh See 6 0s i: eR ea ee ee eee 10

Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388,

29 L. Ed. 2d 619, 91S. Ct. 1999 (1971) ............ 7

Brown v. Allen, 344 U. S. 443, 97 L. Ed. 469,

Fre ED 6. 665-80 we BERN S 4,11

Burgett v. Texas, 389 U.S. 109, 19 L. Ed. 2d 319,

ee ee eer 10

Butler v. McKellar, 108 L. Ed. 2d 347,

BUDS. CA. TRUS CTSNet ewe ewe’ 9,10

Coleman v. Thompson, 115 L. Ed. 2d 640,

S00 GR, SP EOOeD pc ce Cece wees ec eeawn 4

Crumpton v. United States, 138 U. S. 361, 34 L. Ed. 958,

SUGAR CTED on cc ccc ice cessaeesends 12

Fay v. Noia, 372 U. S. 391, 9 L. Ed.-2d 837,

Ret ee ee re 4

Gideon v. Wainwright, 372 U. S. 335, 9 L. Ed. 2d 799,

SPD. GA. FH CISD nce eee eseeeceseaws 10

Illinois v. Gates, 462 U. S. 213, 76 L. Ed. 2d 527,

TE GR SUETONOEED cc conc seen ab eeeeneeed's 8

Irvin v. Dowd, 366 U. S. 717, 6 L. Ed. 2d 751,

81S. Ct. 1639(1961) 2... ee ee ee eee 5

Jackson v. Virginia, 443 U. S. 307, 61 L. Ed. 2d 560,

ne ee ee ee 2, 3, 4, 12

Johnson v. v. Zerbst, 304 U.S. 458, 82 L. Ed. 1461,

TRU GA CRP ENED ce cere hee ee ei sees evens 11

Leyra v. Denno, 347 U. S. 556, 98 L. Ed. 948,

pe eT ee a ee es ee ee ee 11

Mackey v. United States, 401 U. S. 667, 28 L. Ed. 2d 404,

fee 8 er a en ee ee ee 10

Mapp v. Ohio, 367 U. S. 643, 6 L. Ed. 2d 1081,

OED Ce Ce rd RD ies 3 ee 8 8 ees 7

McGuire v. Estelle, 902 F. 2d 749 (CA9 1990) ......... 13

McGuire v. Estelle, 919 F. 2d 578 (CA9 1990) ......... 13

Miller v. Fenton, 474 U. S. 104, 88 L. Ed. 2d 405,

ee fl errr rr ee eee ee eee 4,6,9, 11

Minnesota v. Olson, 109 L. Ed. 2d 85,

i ee eG vialete eee 8

Mooney v. Holohan, 294 U. S. 103, 79 L. Ed. 791,

ee ee ee ae 11

Moore v. Dempsey, 261 U. S. 86, 67 L. Ed. 543,

Po he PREPS EeT Teer Cee ee 11

Palko v. Connecticut, 302 U.S. 319, 82 L. Ed. 288,

ee Pee Pe eee ee ee ee 10

Patton v. Yount, 467 U.S. 1025, 81 L. Ed. 2d 847,

ee ek eae 5

Penry v. Lynaugh, 492 U. S. 302, 106 L. Ed. 2d 256,

7 eee Ct eee ree Cee Cee ee ee 10

Pullman-Standard v. Swint, 456 U. S. 273, 72 L. Ed. 2d 66,

ee ee ee Lae en ee eee 4

vi

Reynolds v. United States, 98 U. S. 145,

ee Es 6 6 6 ko oe KS he wd ee ee 5

Rose v. Lundy, 455 U. S. 509, 71 L. Ed. 2d 379,

a a ere 11

Saffle v. Parks, 108 L. Ed. 2d 415,

I rg kk sk Se dd Re 10

Salinger v. Loisel, 265 U. S. 224, 68 L. Ed. 989,

see ee ee oe ed ee eae 8 4

Sawyer v. Smith, 111 L. Ed. 2d 193,

Se oe kk hg oc be ee 8 8 7,10

Stone v. Powell, 428 U.S. 465, 49 L. Ed. 2d 1067,

ee a a ea a pe 7,8, 11

Teague v. Lane, 489 U. S. 288, 103 L. Ed. 2d 334,

a rr 9,10, 11

Thompson v. Louisville, 362 U.S. 199, 4 L. Ed. 2d 654,

Rg ea va ce eke sec been 12

Townsend v. Sain, 372 U. S. 293, 9 L. Ed. 2d 770,

I se gs ee ek a ee doe Roe 4,9

Wainwright v. Witt, 469 U. S. 412, 83 L. Ed. 2d 841,

SPEER. og 6 we on 6 4 6 oO 8 * 6 0 bees 5

Wilson v. United States, 162 U.S. 613, 40 L. Ed. 1090,

area cra era rer 2

Statutes

| RPP OR er ere oe tee ee er 6

Uae aha Site Ret re a eee he lg 6

EE ee oe ake aun ea he alg gre Ne ae we Seek ere

Vil

Treatise

6 B. Witkin & N. Epstein, California Criminal Law

Pe 24S ca eee 6h ee Cee ere ae ee 25 12

Miscellaneous

Friendly, /s Innocence Irrelevant? Collateral Attack on

Criminal Judgments, 38 U. Chi. L. Rev. 142 (1970) ..... 10

Monaghan, Constitutional Fact Review,

85 Colum. L. Rev. 229(1985) ............. 4,5,6,8

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 199]

Ets B. Wricit, JR., Warden, et al.,

Petitioner,

VS.

FRANK ROBERT WEST, JR.,

Respondent.

BRIEF AMICUS CURIAE OF THE

CRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF THE PETITION

FOR WRIT OF CERTIORARI

INTEREST OF AMICUS CURIAE

The Criminal Justice Legal Foundation (CJLF)! is a non-

profit California corporation organized to participate in litiga-

tion relating to the criminal justice system as it affects the

public interest. CJLF secks to bring the constitutional protec-

tions of the accused into balance with the rights of victims and

of society to rapid, efficient, and reliable determination of guilt

and swift execution of punishment.

1. Both parties have consented in writing to the filing of this brief.

The present case involves the extended relitigation of a

claim already fully and fairly litigated in the state courts. Such

unnecessary relitigation is contrary to the rights of victims and

society which CJLF was formed to advance.

SUMMARY OF FACTS AND CASE

In December 1978, Angelo Cardova was the victim of a

burglary in which numerous items were taken. Pet. Cert.

App. 2.“ On January 10, during a consensual search of Frank

West's home, police found a substantial portion of the stolen

items. /d., at 2-3. To connect West with the theft, the prose-

cution relied solely on Virginia's common law permissive in-

ference that unexplained possession of recently stolen goods

justifies a conclusion that the possessor is the thief. /d., at 4.°

West challenged the sufficiency of the evidence by a mo-

tion at the end of the prosecution’s case. Jd., at 5. He then

testified and denied stealing the items. “His testimony was

somewhat confused and he was unable to account for how he

acquired some of the merchandise.” /d., at 3-4. His further

challenges to the sufficiency of the evidence at trial, on appeal,

and on state habeas corpus were rejected. /d., at 5.

West then filed a habeas corpus petition in federal district

court. Applying Jackson v. Virginia, 443 U. S. 307 (1979), the

district court rejected his challenge to the sufficiency of the

evidence. Pet. Cert. App. 27-28.

2. ‘These facts are taken from the Court of Appeals’ opinion.

3. This Court has expressly approved essentiatly the same inference in a

federal criminal prosecution. “Possession of the fruits of the crime

recently after its commussion justifies the inference that the possession is

guilty possession, and, though only prima facie evidence of guilt, may be

of controlling weight unless explained by the circumstances or accounted

for in some way consistent with innocence.” Wilson v. United States, 162

U.S. 613, 619 (1896).

A panel of the Court of Appeals for the Fourth Circuit

reversed, holding that the evidence was not sufficient to con-

vince any reasonable trier of fact. /d., at 19-20. The court

acknowledged it was disagreeing with the unanimous determi-

nation of a “properly instructed state jury of twelve, a state

trial judge, the state’s supreme court, and a federal district

judge.” /d., at 20. The full Fourth Circuit split evenly over

whether to grant rehearing en banc. Pet. Cert. 7.

SUMMARY OF ARGU MENT

A claim under Jackson v. Virginia is cither a factual ques-

tion or a “mixed question of law and fact.” The rule that

mixed questions are subject to de novo review on habeas cor-

pus is based on premises which were flawed to begin with and

which have eroded further over time. Stone v. Powell, Miller v.

Fenton, and Teague v. Lane in combination require a reexami-

nation of this rule.

De novo review of mixed questions should be reserved for

truly fundamental claims, such as coerced confession, mob

domination of trials, and denial of counsel. Other claims, in-

cluding sufficiency of the evidence, should not be relitigated if

the state courts have fairly reached a conclusion on which

reasonable judges can differ.

ARGUMENT

I. The same standard of review does not necessarily

apply to all “mixed questions.”

A. Mixed Questions.

A strong argument can be made that sufficiency of the

evidence is a factual determination and therefore deference is

required under 28 U. S. C. § 2254(d). See Jackson v. Virginia,

443 U. S. 307, 336 (1979) (Stevens, J., concurring in the judg-

ment). The Jackson majority seems to have rejected that

argument, however, and announced a standard calling upon

the federal habeas court to make an independent evaluation

of the sufficiency of the evidence. /d., at 324. If the question

is not a factual one, it must be a so-called “mixed question.”

In 1953, Justice Frankfurter stated in a concurring opinion

that federal courts had a duty to review questions of federal

constitutional law de novo on federal habeas corpus. Brown v.

Allen, 344 U. S. 443, 500-501 (1953). The majority opinion,

when read carefully, tells us just the opposite. The rule of

Salinger v. Loisel, 265 U.S. 224, 231 (1924), permitting discre-

tionary deference to a prior adjudication by a federal court,

applies equally to a prior adjudication by a state court. Brown,

344 U.S., at 463.

Despite its contradiction of the majority’s holding, Justice

Frankfurter’s exposition has generally been followed as if it

were the law. See, e.g., Fay v. Noia, 372 U.S. 391, 422 (1963),

overruled on other grounds in Coleman v. Thompson, 115

L. Ed. 2d 640, 669, 111 S. Ct. 2546, 2565 (1991). Justice

Frankfurter’s thesis that the de novo review rule extends to

“mixed questions,” Brown, supra, 344 U. S., at 507, has also

been followed. See, e.g., Townsend v. Sain, 372 U. S. 293, 318

(1963).

Defining “mixed questions,” whether in habeas corpus or

on direct appeal, has proven no easy task. This Court has

described the problem as “elusive,” Miller v. Fenton, 474 U. S.

104, 113 (1985), and “vexing,” Pullman-Standard v. Swint, 456

U. S. 273, 288 (1982). “Mixed questions” are typically defined

as those “which require the application of a legal standard to

the historical fact determinations.” Sain, supra, 372 U.S., at

309, n. 6. Yet it is elementary that this statement does not

really set a clear standard for separating law from fact. Negli-

gence is the most common example. Deciding whether de-

fendant’s specific conduct was “reasonable” falls squarely with-

in Sain’s definition of “mixed question,” yet that determination

has always been assigned to the jury as a question of “fact.”

Monaghan, Constitutional Fact Review, 85 Colum. L. Rev. 229,

232, n. 22 (1985).

The jury bias cases illustrate that the standard of review on

mixed questions has been confused. Reynolds v. United States,

98 U.S. 145 (1879) established a policy of great deference to

the trial judge. “The question thus presented is one of mixed

law and fact,” id., at 156, yet a reviewing court should not re-

verse “unless the error is manifest,” ibid. In Irvin v. Dowd, 366

U. S. 717 (1961), a case involving intense publicity of the

crime, the Court noted Reynolds’ “manifest error” test, yet it

held that on habeas corpus review of this mixed question, the

federal court must exercise its independent judgment, relying

on Justice Frankfurter’s statement from Brown v. Allen. See

Irvin, 366 U. S., at 723.

Patton v. Yount, 467 U.S. 1025 (1984), another pretrial

publicity case, applied a presumption of correctness to the trial

court's determination of the bias of individual jurors. Yount

unconvincingly distinguishes /rvin as a case involving the bias

of the jury as a whole. /d., at 1036. Wainwright v. Witt, 469

U. S. 412, 429 (1985) followed Yount for the determination of

bias on the basis of opposition to capital punishment.

The confusion and inconsistencies have not escaped schol-

arly criticism. Professor Monaghan notes two sources of con-

fusion.

“First, courts assume that the properly affixed charac-

terization [as ‘law’ or ‘fact’] necessarily determines

which legal actor is assigned the decisionmaking task.

Second, the two categories have been used to describe

at least three distinct functions: law declaration, fact

identification, and law application.” Monaghan, supra,

85 Colum. L. Rev., at 234.

The third category, law application, is not a “mixture” at all,

but rather an entirely distinct function. /d., at 237. Given

specific historical facts and a broadly worded “test,” do the

facts meet the test? Attempts to assign this function to the

category of “law” or “fact” are doomed to failure because they

ask the wrong question. If a round peg must be pounded into

one of two holes, one square and the other triangular, it will

never fit.

6

Professor Monaghan asserted that the “real issue is not

analytic, but allocative: what decisionmaker should decide the

issue?” Ibid. In Miller, supra, this Court agreed. Casting aside

the facade, the Miller Court frankly admitted that “the fact/law

distinction at times has turned on a determination that, as a

matter of the sound administration of justice, one judicial

actor is better positioned than another to decide the issue in

question.” 474 U.S., af/114>

B. Allocation ang Decision Makers.

Once the guéstion is recognized as allocative rather than

analytical, a problem with the labeling approach becomes

apparent. Our complex adjudicative machinery has many dif-

ferent kinds of decisionmakers. There are administrative tri-

bunals, juries, state trial judges, federal trial judges, state ap-

pellate courts, federal appellate courts, and the United States

Supreme Court.’ Can the simple labeling of an issue as “law,”

“fact,” or “mixed question” really properly allocate the deci-

sion among so many different actors? Amicus submits that it

cannot.

Monaghan discusses in detail the distinction between “judi-

cial control of the administrative state and appellate review of

the decisions of inferior tribunals.” Monaghan, supra, 85

Colum. L. Rev., at 247-263. The classification of issues for the

purpose of allocating decisions between Article III courts and

administrative bodies is based on different concerns from

those which are involved in the allocation between trial and

appellate courts in a unitary system. /d., at 262-263.

Professor Monaghan does not discuss federal habeas cor-

pus in detail as a separate category, but the decisions of this

Court indicate that still different concerns are involved in the

4. This Court is sui generis because it is the only court with appellate

jurisdiction over both state and federal courts. See 28 U.S. C. §§ 1254,

1257.

allocation of decisions between the state courts and the lower

federal courts, as opposed to the allocation on direct review.

Stone v. Powell, 428 U. S. 465 (1976) made clear that questions

open for Supreme Court review on direct appeal from state

courts are not necessarily open to collateral review on federal

habeas corpus.

C. Stone v. Powell.

Mapp v. Ohio, 367 U. S. 643, 660 (1961) held that the ad-

mission in a state criminal trial of evidence seized in violation

of the Fourth Amendment is a federal constitutional error.

There is no other jurisdictional basis for imposing the rule on

the states. The Mapp rule is either constitutional or it is

wrong.” The Powell Court refers to “a judicially created

remedy rather than a personal constitutional right,” 428 U. S.,

at 494, n. 37, but the remedy must be a constitutionally re-

quired one for a federal court to have jurisdiction to consider

it. Compare ibid. (jurisdiction) with Sawyer v. Smith, 111

L. Ed. 2d 193, 209-210, 110 S. Ct. 2822, 2830 (1990) (habeas

jurisdiction limited to federal questions).

Notwithstanding the constitutional nature of the rule,

Powell held that full federal review was not a foregone conclu-

sion. Particular categories of constitutional claims are open to

individual examination. 428 U. S., at 478-479.

Fourth Amendment cases frequently involve so-called

“mixed questions” or what Monaghan more accurately calls

“law application.” See ante p. 5. A comparison of Mona-

ghan’s definition of that category with this Court's description

of the “probable cause” inquiry is instructive. “[{L]aw applica-

tion is situation specific; any ad hoc norm elaboration is, in

5. Astrong argument has been made that the legislative branch could

supplant the exclusionary rule with an alternate remedy. Bivens v. Six

Unknown Fed. Narcotics Agents, 403 U.S. 388, 411 (Burger, C. J.,

dissenting). Our point here is that Mapp, if it is correct, is a

constitutional rule at least in the absence of such an alternate remedy.

theory, like a ticket good for a specific trip only.” Monaghan,

supra, 85 Colum. L. Rev., at 236. “[P]robable cause is a fluid

concept — turning on the assessment of probabilities in a par-

ticular factual context — not readily, or even usefully, reduced

to a neat set of legal rules.” Jilinois v. Gates, 462 UL. S. 213,

232 (1983). “There are so many variables in the probable-

cause equation that one determination will seldom be useful

‘precedent’ for another.” /d., at 238, n. 11. A Gates probable

cause inquiry thus fits precisely its Monaghan’s “law applica-

tion” category. By forbidding relitigation on habeas corpus,

see Powell, supra, 428 U. S., at 481-482, the Powell Court de-

cided to allocate the exclusionary rule decision to the state

courts as opposed to the federal habeas courts.

Supreme Court direct review of state Fourth Amendment

law application, by contrast, is either de novo or a much milder

form of deference. In Minnesota v. Olson, 109 L. Ed. 2d 85,

96, 110 S. Ct. 1684, 1690 (1990), this Court deferred to a state

court’s “fact-specific application of the proper legal standard.”

See also id., at 96-97 (Kennedy, J., concurring). Yet two

months later in Alabama v. White, 110 L. Ed. 2d 301, 310, 110

S. Ct. 2412, 2417 (1990), this Court reversed a state appellate

court in a “close case.” The difference appears to be that in

White the Court believed that further elaboration of the norm

was needed. Compare id., at 307 with Monaghan, supra, 85

Colum. L. Rev., at 237, 273.

The bottom line, then, is that state courts generally are

trusted with the application of Fourth Amendment law to

specific factual situations. The Supreme Court on direct

appeal has the discretion to review this law application de

novo, but this discretion will generally only be exercised when

it is necessary to clarify the law, and not merely for error cor-

rection. The federal habeas courts are limiied to ensuring that

the state courts provide the opportunity for full and fair litiga-

tion of the claim. As a matter of the sound administration of

justice, to use Miller’s words, it is better to leave these deci-

sions to the state courts.

9

II. Recent developments have undermined the basis for

de novo review of “mixed questions.”

At least until Miller v. Fenton, 474 U.S. 104 (1985), deter-

minations of whether a question of law application (other than

the exclusionary rule) would be reviewed de novo on habeas

corpus were made on the basis of the fact/law distinction.

That is, if an issue was determined to be a “mixed question”

then it was to be decided de novo, on the theory that such

questions were the same, for this purpose, as questions of pure

law. See, e.g., Townsend v. Sain, 372 U.S. 293, 313, n. 9, 318

(1963).

If questions of pure law are not reviewed de novo, however,

then the logical foundation for de novo review of mixed ques-

tions is removed. It becomes a tail without a dog, a grin with-

Out a Cal.

The rule of Teague v. Lane, 489 U. S. 288 (1989), as further

expounded in Butler v. McKellar, 108 L. Ed. 2d 347, 110 S. Ct.

1212 (1990), has effectively changed the rule on “pure law”

questions from one of de novo consideration to one of over-

sight to correct judicial disobedience. A rule is “new” under

Teague/Butler if the outcome is “susceptible to debate among

reasonable minds.” Butler, 108 L. Ed. 2d, at 356, 110 S. Ct., at

1217. Butler “limits federal courts’ habeas corpus function to

reviewing state courts’ legal analysis under the equivalent of a

‘clearly erroneous’ standard of review.” Jd., 108 L. Ed. 2d, at

361, 110 S. Ct., at 1221 (Brennan, J., dissenting).

Indeed, Justice Brennan went so far as to conclude that the

question presented in this case had already been decided in

Butler.

“A federal court may no longer consider the merits of

the petitioner's claim based on its best interpretation

and application of the law prevailing at the time her

conviction became final; rather, it must defer to the

state court’s decision rejecting the claim unless that

decision is patently unreasonable.” /bid. (emphasis

added).

10

This statement is correct unless the rule being applied falls

within one of the two Teague exceptions. The first is for cate-

gorical exemptions from punishment. See Penry v. Lynaugh,

492 U. S. 302, 330 (1989). This exception is clearly inapplica-

ble to the present case. The second is for “watershed” rules.

Teague, supra, 489 U. S., at 311.

The second exception has yet to find an actual application.

See Butler, supra, 108 L. Ed. 2d, at 357, 110 S. Ct., at 1218;

Saffle v. Parks, 108 L. Ed. 2d 415, 429, 110 S. Ct. 1257, 1264

(1990); Sawyer v. Smith, 111 L. Ed. 2d 193, 212-213, 110 S. Ct.

2822, 2832-2833 (1990). There may never be one. Criminal

procedure jurisprudence is sufficiently developed that there

may be no fundamental procedural rights remaining to

“emerge.” See Teague, supra, 489 U.S., at 313. Justice Har-

lan advanced this exception in 1971, when Gideon v. Wain-

wright, 372 U. S. 335 (1963) was only eight years old, apparent-

ly to explain his continuing concurrence in the retroactive

application of Gideon on collateral review. See Mackey v.

United States, 401 U. S. 667, 694 (1971).°

The existence of the second exception does mark a signifi-

cant milestone in the development of habeas corpus theory,

however. Teague converges with Miller v. Fenton and Stone v.

Powell at this point in recognition that not all claims of consti-

tutional error are equal. In 1953, when Justice Frankfurter

penned his famous concurrence in Brown v. Allen, “fundamen-

tal” error and “constitutional” error were virtually synony-

mous, at least in cases involving state prisoners. See Palko v.

Connecticut, 302 U. S. 319, 325 (1937), overruled in Benton v.

Maryland, 395 U. S. 784, 796 (1969). Seventeen years later, a

distinguished jurist referred to the body of constitutional deci-

sions in this area as “a detailed Code of Criminal Procedure, to

which a new chapter is added every year.” Friendly, /s Inno-

6. Collateral attack via Gideon persisted for many years due to the

widespread use of pre-Gideon priors for impeachment and sentencing.

See Burgett v. Texas, 389 U.S. 109, 115 (1967).

1]

cence Irrelevant? Collateral Attack on Criminal Judgments, 38

U. Chi. L. Rev. 142, 155-156 (1970) (footnote omitted). Final-

ly, in 1982 Justice Stevens said outright what many observers

had known for some time. A great many constitutional claims

are not fundamental. The assumption that all constitutional

claims merit de novo collateral review needs to be reexamined.

Rose v. Lundy, 455 U.S. 509, 543-544 (1982) (dissent).

Teague recognized through its second exception that truly

fundamental claims require different treatment. Miller v.

Fenton recognizes that the classification of “mixed questions”

is Often a policy decision rather than an analytical exercise.

474 U.S., at 113-115. Stone v. Powell recognizes that the ex-

clusionary rule is too far removed from core constitutional

rights to justify collateral review where state remedics are

adequate. 428 U. S., at 494-495. In short, “claims of constitu-

tional error are not fungible.” Lundy, supra, 455 U. S., at 543

(dissent).

If de novo review of a mixed question on habeas corpus

survives Teague and Butler, it must do so on some basis other

than the discredited notion that all questions of “law” are re-

viewed de novo. That basis, amicus submits, can be found in

the overlapping categorics of Teague’s “watershed rules,” the

Lundy dissent’s “fundamental” claims, and Miller’s “half cen-

tury of unwavering precedent” rationale. See Miller, supra,

474 U.S., at 115.

The claims which require the extraordinary precaution of

de novo collateral review are, by and large, the claims which

historically led this Court to expand habeas corpus beyond

jurisdictional issues into other constitutional questions. They

include coerced confessions, Leyra v. Denno, 347 U. S. 556,

561-562 (1954); mob dominated trials, Moore v. Dempsey, 261

U.S. 86, 91 (1923); knowing use of perjured testimony, Moo-

ney v. Holohan, 294 U.S. 103, 112 (1935); systematic exclusion

of minorities from jury service, Brown v. Allen, 344 U.S. 443,

470 (1953); and complete denial of counsel, Johnson v. Zerbst,

304 U.S. 458, 467 (1938). See Lundy, supra, 455 U.S., at 544,

nn. 9-11 (dissent); Teague, supra, 489 U.S., at 313-314.

12

It is no accident that all of these cases predate the criminal

procedure revolution of the 1960’s. With the exception of

Gideon, all of the truly fundamental rules had been made di-

rectly under the Due Process Clause, without the need for the

incorporation doctrine.

Applied to the present case, we find a federal rule which is

both fundamental and long-standing that a defendant cannot,

consistently with due process, be convicted on no evidence.

Thompson v. Louisville, 362 U.S. 199, 206 (1960); see also

Crumpton v. United States, 138 U. S. 361, 362-363 (1891). The

standard of Jackson v. Virginia, 443 U. S. 307, 324 (1979) is of

much more recent vintage. That is not to say that the rule is

wrong of undesirable. States often have similar rules on direct

appeal. See, e.g.,6 B. Witkin & N. Epstein, California Crimi-

nal Law §§ 3205, 3208 (2d ed. 1989). As the Jackson concur-

rence points out, however, there is no history of abuse demon-

strating a pressing need for more intensive federal scrutiny.

443 U.S., at 329-330 (Stevens, J.). The state courts are com-

petent to adjudicate challenges to the sufficiency of evidence.

In resolving the exhaustion issue in the present case, the

Fourth Circuit held that the state courts had already decided

the sufficiency of the evidence question adversely to West.

See App. Pet. Cert. 8-9. The question presented is whether

the simple disagreement by a panel of the federal appellate

court with the reasonable, considered judgment of the coequal

state judiciary on a question within the latter’s jurisdiction is

sufficient ground for collateral attack on a final judgment.

Absent any special reason for de novo federal review, ami-

cus submits that disagreement is not sufficient reason. Amicus

further submits that there is no special reason applicable to

this case. If the state courts have fairly considered the claim

and reached a conclusion within the bounds in which reasona-

ble judges can differ, that conclusion should not be disturbed.

Certiorari should be granted to clarify the standard of review

for “mixed question” cases on federal habeas corpus in the

post- Teague era.

13

III. Estelle v. McGuire may affect the disposition

of the petition in this case.

On October 9, this Court heard oral argument in another

case involving a federal court granting habeas relief on the

basis of disagreement with a state evidentiary decision. Estelle

v. McGuire, No. 90-1074. See also McGuire v. Estelle, 902

F. 2d 749 (CA9 1990); McGuire v. Estelle, 919 F. 2d 578 (CA9

1990) (Kozinski, J., dissenting from denial of rehearing en

banc).

Depending on how McGuire is decided, that case may in-

volve principles of habeas corpus law that have a significant

impact on the present case. Therefore, amicus suggests that it

may be prudent to defer the disposition of the present petition

until McGuire is decided.

CONCLUSION

The petition for writ of certiorari should be granted.

Dated: October, 1991

Respectfully submitted,

KENT S. SCHEIDEGGER

Attorney for Amicus Curiae

Criminal Justice Legal Foundation