Reply Brief — Lindh v. Murphy

? Supreme Court, U.S.

($) FILED

e, APR @ 1997

No. 96-6298 OFFICE OF THE cue |

In The

Supreme Court of the United States

October Term, 1996

+

AARON LINDH,

Petitioner,

JAMES P. MURPHY, WARDEN,

Respondent.

.

On Writ Of Certiorari

To The United States Court Of Appeals

For The Seventh Circuit

+

REPLY BRIEF FOR PETITIONER

+

James S. LieBMAN*

435 W. 116th St., Box B-16

New York, NY 10027

(212) 854-3423

RicHarp C. NeuHorr

600 Harrison St., Suite 535

San Francisco, CA 94107

(415) 543-0433

Kerry A. FiInpiey

975 Bascom Mall

Madison, WI 53706

(608) 263-3380

Counsel for Petitioner

"Counsel of Record

COCHLEA SE PERSP S CO, Gam 1b e0ee

OR CALL COLLECT (402) 342-283

- “aS

ee

i

QUESTIONS PRESENTED

Congress enacted the Antiterrorism and Effective

Death Penalty Act of 1996 (“the Act”) on April 24, 1996.

The Act’s habeas corpus title, inter alia, amends 28 U.S.C.

§ 2254(d). The questions on which the Court granted

review are:

Whether the court of appeals correctly concluded

that Congress, despite an explicit provision in § 107(c) of

the Act, failed to specify the extent to which the Act’s

habeas corpus revisions are to apply retroactively to

pending habeas cases?

If so, whether the court of appeals correctly sup-

planted this Court’s antiretroactivity presumption, trig-

gered by new legal consequences attached to completed

events, with a presumption that habeas-curtailing stat-

utes apply retroactively and a test for retroactive effects

that requires proof of actual reliance?

TABLE OF CONTENTS

Page

eee. Be) eee i

pes Fe Bee. Per re ii

TREES GP CPRCMENUID voc ccncanstecessacusaeuan iii

REPLY BRIEF FOR PETITIONER................0:: 1

I. The State Misreads Landgraf’s Step One to Saddle

Congress with an Onerous Redundancy Require-

GREER ov ccccvccccecceenccecesanesuetschaseneesee 3

Il. Nothing the State Says or Cites Changes the Fact

that Applying Section 2254(d) Would Deprive

Lindh of a Matured and Unconditional Cause of

Action and Thus Attach New Legal Conse-

quences to Pre-Enactment Events .............. 5

A. The Habeas Remedy for State Court Consti-

tutional Violations Is No Less Protected by

Nonretroactivity Norms than Statutory

Remedies for 08 DERMEED 6 oiss ies cides’ 7

B. Section 2254(d) Is Not Procedural, Jurisdic-

tional or Prospective, Nor Would its New

Legal Consequences Be Permissible if it Were

UTTTITI TTT ee ee 12

Not “merely procedural” ................ 13

Not “merely jurisdictional” .............. 14

Not “merely prospective”................ 15

C. Applying Section 2254(d) as Read Below

ould Attach New Legal Consequences to

“Events Completed” Before Enactment on

Either of the Two Admissible Understand-

ings of the Events that Made Mr. Lindh’s

Rights Mature and Become Unconditional.. 16

QUINC EARS occccccccoedevesesnethebeneanennee 20

iii

TABLE OF AUTHORITIES

Page

Cases

Amadeo v. Zant, 486 U.S. 214 (1988)................. 5

American Steel Foundries v. Tricity Cent. Trades

Council, 257 US. 186 (1921) ........ ccc ccccccceees 15

Assessors v. Osbornes, 76 U.S. 567 (1869) ........... 11

Baines v. Swenson, 384 F.2d 621 (8th Cir. 1966)...... 13

Bell v. New Jersey, 461 U.S. 773 (1983)......... .... 11

Bennett v. New Jersey, 470 U.S. 632 (1985) ....6, 17, 19

Bennett v. Spear, 117 S. Ct. __. 1997 WL 119566

TENCE E SG bodideddedetecbiiccceccccess 5

Bradley v. School Bd., 416 U.S. 696 (1974)............ 5

Brown v. Allen, 344 U.S. 443 (1953).................. 1

Bruner v. United States, 343 U.S. 112 (1952)...... 10, 14

Byrd v. Blue Ridge Rural Elec. Coop., 356 U.S. 525

has bosecenesensdline se scenes eccess 13

Carafas v. LaVallee, 391 U.S. 234 (1968)............. 17

Crane v. Hahlo, 258 U.S. 142 (1922)........... 6, 11, 14

Dash v. Van Kleeck, 7 Johns. 477 (N.Y. 1811)........ 19

Davis v. Executive Dir., 100 F.3d 750 (10th Cir.

DM AcnaeN es Sabensegeds cng $8as COV lets cdcbcvecs 14

Dobbs v. Zant, 506 U.S. 357 (1993)... 2.0... 6c ccc cees 5

Emerson v. Gramley, 91 F.3d 898 (7th Cir. 1996)..... 14

Ex parte McCardle, 74 U.S. (7 Wall.) 506 (1868) ..... 12

Farmer v. McDaniel, 98 F.3d 1548 (9th Cir. 1996).... 14

iv

TABLE OF AUTHORITIES - Continued

Page

Felker v. Turpin, 116 S. Ct. 2333 (1996).............. 15

Fullerton-Krueger Lumber Co. v. Northern Pac.

Cy Se Wb EP ec covececceccdasst... 10

Gasperini v. Center for Humanities, 116 S. Ct. 2211

EOP shcbes idcdesid ddadbddubbuctshanecececaced.o. 13

Granberry v. Greer, 481 U.S. 129 SPEND Wks decdwsts. 15

Greene v. United States, 376 U.S. 149 (1964)...6, 10, 19

Hagen v. Utah, 510 U.S. 399 Se Date wes dinnen tiie 2 13

Hallowell v. Commons, 239 U.S. 506 a 11, 14

Hennon v. Cooper, 1997 WL 114438 (7th Cir. Mar.

Dy Wi pec tacccncctesessbannneitttaidsdd idee. 1

Herrera v. Collins, 506 U.S. 390 PR gs Si RS 8

Hunter v. United States, 101 F.3d 1565 (11th Cir.

ae ITI et ee ee EE 2

Johnson v. Zerbst, 304 U.S. 458 (1938)................ 1

Kyles v. Whitley, 115 S. Ct. 1555 (1995) .............. 5

Landgraf v. USI Film Products, 511 U.S. 244 (1994)

DP Ocvrcdccsccccsescedsoesaebendebecdséedtibnes<. passim

Mackall v. Murray, 1997 WL 134374 (4th Cir. Mar.

Se Ten crisiseenntdtiinasinisterdin ss 2

Maitland v. University of Minnesota, 43 F.3d 357

Gun Gil Fesediecbacsdensmaaiaiien at oa 9

Markham v. United States, 160 U.S. 319 (1895) ...... 14

McDonald v. Kropp, 373 F.2d 549 (6th Cir. 1967) ....14

Pitchess v. Davis, 421 U.S. 482 Fe 15

v

TABLE OF AUTHORITIES - Continued

Page

Plaut v. Spendthrift Farm, Inc., 115 S. Ct. 1510

SD 6b ebhhe debtnnie deeediidt ftds pactbecih uo ceeu. 5: 8

ee eee 2

Reed v. Farley, 114 S. Ct. 2291 (1994) ............... 19

Rehbein v. Clarke, 94 F.3d 478 (8th Cir. 1996)....... 14

Nat'l Bank v. United States, 506 U.S. 80

Sater Gatenths ehestedacincuiieduidéc sa... -.. 11

Rivers v. Roadway Express, 511 U.S. 298 (1994) ..... 13

Sharpe v. Buchanan, 317 U.S. 238 (1942) ............ 17

Sherman v. Grinnell, 123 U.S. 679 (1887)......... 11, 19

Smallwood v. Gallardo, 275 U.S. 56 (1927)........... 11

Sohn v. Waterson, 84 U.S. (17 Wall.) 596 (1873)...... 10

Spencer v. Georgia, 500 U.S. 960 (1991) ............. 19

Teague v. Lane, 489 U.S. 288 (1989)............... 1, 18

Tevis v. Ryan, 233 U.S. 273 (1914)................... 14

United States Fidelity & Guar. Co. v. United States

ex rel. Struthers Co., 209 U.S. 306 (1908) ..6, 19

United States v. Magnolia Petr. Co., 276 U.S. 160

aasnbsebddbdiehentspecdsaudblentien ces 6, 19

United States v. Mejia, 844 F.2d 209 (5th Cir. 1988) .... 13

United States v. St. Louis S.F. & T., 270 US. 1

Geeredhupvictissbccstecseddcactidecdetenttenss 10, 12

vi

TABLE OF AUTHORITIES - Continued

Page

United States v. Wells, 117 S. Ct. 921 (1997).......... 3

Weaver v. Graham, 450 U.S. 24 (1981)................ 6

Wills v. Texas, 511 U.S. 1097 (1994) ................. 19

Winfree v. Northern Pac. Ry., 227 U.S. 296 (1913) .... 13

TF 8 RR ere 2

Antiterrorism and Effective Death Penalty Act of

SEED cncnvencaseseneseswessngpemeeseasbaseio es passim

WE wc cc ccpenp teennst dene cutbetinniauninenidel 3, 6

SE SEP otnccashnnsthin conbetdienssnnt 3, 4, 5, 6, 19

DED cnn dnas (rng cscahinbtonetedl wettietion iss 5

SRE Sie Ie Pein en 6n0te cantantennnedssieneanie 5

BD CBG. | TRGRG 0 ccc ccccccccbheccccccccccs 8, 16, 17

SP We OP I cnvincccancontedceanvlseessandens 14

SP -n 1 ED dnveiccccsescccccesnevectanseel 17

BD Week CD os cc wdecccsvaciccdswtadedecine 15, 16

Se Wel Oe ous Gide ctnccendedcéeesisil passim

SD QE SEN aS 0 on od cress cndovgadtecs césitinn me 4

SP Qs 0 ED cb Ub hdc cnddcuebcciebacditebcocese 15

SD Qe Oe III ci decucctendbdénncéucdédasconal 5

Sp Ws OS GD Cecctcccldncdsdchecwnsteisenainn 4,5

Cl ttt

vii

TABLE OF AUTHORITIES - Continued

Page

LB&GISLATIVE MATERIALS

142 Cong. Rec. H2187-88 (Mar. 13, 1996)............

MISCELLANEOUS

Amicus Curiae Brief for the United States, Hughes

Aircraft Co. v. United States ex rel. Schumer,

1996 WL 744847 (No. 95-1340)....................

Bureau of Justice Statistics, Federal Habeas

Corpus Review (Sept. 1995).......................

Rep. of ABA Spec. Comm. to t Remedies

and Formulate Ay eee Laws to ent Dela

and b+ ost in Litigation, 2 A.B.A. J.

gE SIRES EES ¢ PRES Shy ED Oe ee

1

REPLY BRIEF FOR PETITIONER

The court below interpreted the 1996 Act as replacing

the previous habeas corpus cause of action, established

by (1) custody and (2) a constitutional violation, with a

new cause of action requiring proof, in addition, that (3)

the state court’s adjudication not only was “erroneous” as

a matter of federal constitutional law but was “grave[ly]”

erroneous.’ The State and its amici admit this,2 and also

that the court of appeals applied its radical reading of the

1996 law to deny Aaron Lindh’s 1992 petition on the

ground that the state court’s resolution of his Confronta-

tion Clause claim “cannot be called ‘unreasonable’ ” even

1 JA 181, 182; Hennon v. Cooper, 1997 WL 114438, at *5-*6

(7th Cir. Mar. 14, 1997) (circuit decision in “Lindh . .. commands

deference to the state court's judgment . . . [unless it is]

‘unreasonable,’ which is stronger than ‘erroneous’ and may be

stronger than ‘clearly erroneous’ ”; relief denied despite

“deficient” “reasoning” of state court decision and basis to

“think [its] determination incorrect”). The State and its amici

openly lobby for the lower court's interpretation of § 2254(d).

RB 20-24; CJLF 3-16; WLF 2-11. Because the Court expressly

excluded the question of the correctness of that interpretation

from its grant of certiorari, the devotion to it of half of two briefs

is utterly inappropriate. So would it be for the Court to address

the issue without first giving Lindh a fair chance through

briefing and argument to show that the proffered interpretation

is demonstrably incorrect and unconstitutional.

of the opposing briefs disputes for a moment that, “[a}t least

since Brown v. Allen, 344 U.S. 443 (1953)” and until April 23,

1996, Lindh had an unconditional statutory right to relief from

custody based upon a constitutional violation. CJLF 7; see RB 6,

23; WLF 6.

2

though members of the majority as well as the dissenting

judges below “believe” that it was “wrong.” JA 197, 203.9

Because the State and its amici disavow the lower court's

revisionist interpretation of Landgraf v. USI Film Prod., 511

U.S. 244 (1994),4 substituting their own, reply is required.

3 The Confrontation Clause issue is not before the Court,

but the State and CJLF address it, misstating the record. RB 2-4;

CJLF 29-30. When Dr. Roberts provided the State with its only

testimony that Lindh had no mental disease, (1) the State was

investigating felony charges against Roberts that had led the

State Medical Board to move to withdraw his license and the

University Hospital to ask for a criminal investigation (the

order in limine forbade questions about the Hospital’s

suspension of Roberts as well as the State’s criminal

investigation of him); and (2) Lindh’s prosecutor had favored

Roberts with a decision not to suspend his employment and

investigate but instead to continue his retainer on Lindh’s case

and let someone else investigate. Three months after Lindh’s

trial, the State re ‘uced multiple felony charges against Roberts

to a single misdemeanor to which Roberts pled guilty, and a

judge in the same court where Lindh was tried withheld a

prison term because of Roberts’ services to the State in cases like

Lindh’s. JA 8-13, 22-44, 76-77, 85, 197, 217.

4 E.g., RB 37-39 (declining to defend lower court’s

limitation of “new legal consequences” to frustrated reliance

interests); WLF 4, 19-20 (reasonable “means of assessing the

potential unfairness to some litigants of applying amended

... § 2254(d) to . . . pending habeas cases” places Lindh within

“categories of habeas petitioners . . . most likely to” deserve to

“be exempted” from new law).

The State’s “representative sampling” of lower court cases

is not. Cf. RB 12 n.4. Four circuits have held that § 2254(d) does

not apply to pending cases, including Mackall v. Murray, 1997

WL 134374, at *4 (4th Cir. Mar. 25, 1997). See Pet. Brf. 11 n.10.

Two circuits have applied it. The Eleventh Circuit has reserved

the issue. Hunter v. United States, 101 F.3d 1565, 1572 n.5 (11th

Cir. 1996).

3

I. The State Misreads Landgraf’s Step One to Saddle

Congress with an Onerous Redundancy Require-

ment

Under Landgraf, the first step in analyzing the tempo-

ral reach of a statute is to determine “whether Congress

has expressly prescribed the statute’s proper reach.” Id. at

280. The State and amici treat the adverb expressly as a

term of art, meaning “through words taken wholly out of

context and without reference to the ordinary rules for

reading statements made in the English language.” E.z.,

RB 9-10. We believe, conversely, that the quoted phrase

from Landgraf means nothing more or less than that a

court should begin by considering whether the statutory

text explicitly addresses the question of the statute’s

application to classes of cases defined by temporal crite-

ria, and, if the text does so, the court should obey the

manifest English-language meaning of that text.

The text of Title I of the 1996 Act explicitly addresses

the question of the applicability of the Act’s habeas revi-

sions to classes of cases defined by temporal criteria. Title

I enacts two distinct sets of revisions - a new Chapter 154

and several amendments to preexisting Chapter 153 - and

then states in § 107(c) that the new “Chapter 154 shall

apply to cases pending on... the date of enactment of

this Act.” The meaning of § 107(c) is no less “express”

than the meaning of the statement “Give me two large

cokes to go, one with ice” - although both statements

assume familiarity with normal English usage and a

hearer motivated to make sense instead of nonsense of

what's said. Congress commonly assumes no less; Land-

graf certainly demands no more.5

5 See United States v. Wells, 117 S. Ct. 921, 927 (1997) (“first

criterion in the interpretive hierarchy, [is] a natural reading of

the full text”). Lindh does not “deliberately commingle[ }” (cf.

RB 10) Landgraf’s Step One (“expressly prescribed” temporal

scope) and Step Three (“clear congressional intent”) but

discusses them simultaneously to avoid repetition. Because

§ 107(c) expressly prescribes Title I’s temporal reach - and

§ 2264(b) expressly prescribes § 2254(d)’s —- Step One subsumes

Step Three. And were it determined that §§ 107(c)’s and

2264(b)’s treatment of temporal reach were not sufficiently

“express,” their language pointing in that direction would

supply the single most important consideration in the statutory

construction that Step Three requires.

Four issues that the State and its amici raise in regard to Step

Three — none bearing on Step One — deserve mention. (1) Under

Landgraf, and also as a matter of logic, “ ‘where the

congressional intent is clear, it governs’” in Step Three.

Landgraf, 511 U.S. at 264. This is true whether Congress’ clear

intent rebuts the presumption against giving a new law

retroactive effect or, a fortiori, when there is no “ ‘timeless and

universal’ ” presumption to be overcome, and Congress’ clear

intent is to follow the usual rule that new laws apply in the

future. Id. at 265. Courts accordingly must follow Congress’

clear “ ‘statutory direction’ ” to apply a new law only in future

cases even if the law’s application to pending cases would not

be “retroactive.” Id. at 277; accord, WLF 19; cf. RB 10.

(2) The State (RB 12) ignores the explanation for limiting

the pending cases governed by Title I to those brought by capital

prisoners who are given special litigative resources in state court.

28 U.S.C. § 2261. By focusing on pending capital cases, Congress

pinpointed the cases causing a logjam. See Bureau of Justice

Statistics, Federal Habeas Corpus Review 16-25 (Sept. 1995)

(capital, not noncapital, cases cause delay). By focusing on

prisoners given special resources in state court, Congress could

rely on those resources to neutralize the unfairness that

retroactive application would cause — while concluding, as to

cases in which extra resources were not provided, that “the

potential unfairness of retroactive application . . . [is not] an

5

Il. Nothing the State Says or Cites Changes the Fact

that Applying Section 2254(d) Would Deprive

Lindh of a Matured and Unconditional Cause of

Action and Thus Attach New Legal Consequences

to Pre-Enactment Events

The State chiefly relies on a single, patently result-

oriented proposition — that a new law’s effects qualify as

acceptable price to pay for the countervailing benefits.”

Landgraf, 511 U.S. at 272-73.

(3) What does remain unexplained is respondent's

rationale for reading 28 U.S.C. § 2264(b) so as to destroy the

States’ incentive to provide special resources and thus “opt-in”

to Chapter 154. For respondent’s version of § 2264(b) would

concededly deny opt-in States the benefit of the Act’s beefed up

exhaustion rule, the presumption of correctness of state

factfindings, and § 2254(d) in the large class of habeas cases in

which prisoners rely on “a factual predicate that could not

[previously] have been discovered through the exercise of due

diligence.” Id. § 2264(a)(3); see, e.g., Kyles v. Whitley, 115 S.Ct.

1555 (1995); Dobbs v. Zant, 506 U.S. 357 (1993); Amadeo v. Zant,

486 U.S. 214 (1988). Nor does CJLF’s comparison of the Powell

Commission’s § 2259 and the 1996 Act’s § 2264(b) explain the

latter. Cf. CJLF 19, A-1. To the contrary, this “apples and

elephants” comparison simply begs the question why Congress

in March and April 1995 — just when it added § 107(c) - dropped

the Powell Commission’s hearing provision and added an

entirely unrelated section incorporating into Chapter 154 three

Chapter 153 provisions that by CJLF’s own admission apply of

their own force “in all [habeas] cases.” CJLF 16. The only

imaginable reason — the only one that avoids “emasculat[ing] an

entire section,” cf. Bennett v. Spear, 117 S. Ct. __ ___, 1997 WL

119566, at “11 (Mar. 19, 1997) — is to make two Chapter 153

provisions, which do not generally apply to pending cases, apply

to pending opt-in cases pursuant to § 107(c).

(4) Despite CJLF’s misleading obfuscations (CJLF 17), the

partial prospectivity provision in § 903(c) of the Act does not

apply to § 108 or any other part of the habeas title (Title I); and it

was added by a different House of Congress almost a year after

6

retroactive “only if the interest harmed by the new law

is . . . deserving” in the light of the reviewing court's

policy preferences. RB 16 (emphasis added). That is not

Landgraf's test. Landgraf’'s Step Two asks whether “events

completed before enactment” caused a legal right to have

matured or become unconditional as a matter of pre-

enactment law, and whether application of a new law

would “attach new legal consequences” to those pre-

enactment events. 511 U.S. at 270 (emphasis added).® If

so, the new law’s application is “retroactive” and imper-

missible absent “clear congressional intent” — whatever

the court’s own policy preferences might be. Id. at 283.

Here, two crucial facts clearly make § 2254(d)’s appli-

cation to Mr. Lindh retroactive under Landgraf; and the

State disputes neither of them: First, events occurring no

later than July 9, 1992 when Lindh filed his petition (and,

possibly, well before then) gave Lindh an unconditional

right to relief from custody under the preexisting habeas

Title I and § 107(c) were finalized. See 142 Cong. Rec. H2187-88

(Mar. 13, 1996); Pet. Brf. 28 n.17.

6 See, e.g., Bennett v. New Jersey, 470 U.S. 632, 639-40 (1985)

(determinative retroactivity event is when “pre-existing right to

recovery” “ ‘had matured or become unconditional’ ”); Weaver

v. Graham, 450 U.S. 24, 29 (1981) (when individual acquired

“affirmative enforceable right”); Bradley v. School Bd., 416 U.S.

696, 720 (1974) (“The Court has refused to apply an intervening

change to a pending action where . . . do[ing] so would infringe

upon or deprive a person of a right that had matured or become

unconditional.”); Greene v. United States, 376 U.S. 149, 153, 160

(1964) (when “petitioner’s rights . . . matured and were

asserted”); United States v. Magnolia Petr. Co., 276 U.S. 160, 162

(1928) (when “claims fixed in accordance with earlier

provisions”); Crane v. Hahlo, 258 U.S. 142, 145 (1922) (when right

to relief “became complete”); United States Fidelity & Guar. Co. v.

United States ex rel. Struthers Wells Co., 209 U.S. 306, 315 (1908)

(when “respective rights of the parties [were] settled”).

7

statute. For nothing thereafter could occur (under pre-Act

law) that would attach to his unconstitutional custody

any legal consequence but federal habeas relief. And,

second, to apply amended § 2254(d) as interpreted below

would attach the opposite legal consequence, because

§ 2254(d) more “narrowly limited the circumstances in

which a federal habeas court may grant relief” (RB 21) by

giving the State a “ ‘modified res judicata’” defense

(CJLF 15) that “substantially alters [Lindh’s] federal

habeas ‘cause of action’ ” (WLF 17).

Apart from appealing to policy preferences, the State

offers only three arguments for exempting § 2254(d)’s

new legal consequences from the Landgraf rule: (1) that

the presumption against giving retroactive effect to rules

of decision enacted by supervening statutes is limited to

rules affecting “primary conduct” rather than “secondary

conduct” — and a remedy for the unconstitutional acts of

another court is ineluctably “secondary” (RB 25, 34); (2)

that some other label - “procedural,” “jurisdictional,”

“prospective” — applies to § 2254(d) and exempts it from

the Landgraf rule (RB 24-32); and (3) that the “event{ }

completed before . . . enactment” to which § 2254(d)

attaches new legal consequences occurred earlier than

Lindh suggests (RB 32). Each argument is taken up below.

A. The Habeas Remedy for State Court Constitu-

tional Violations Is No Less Protected by Non-

retroactivity Norms than Statutory Remedies

for Other Harms

The State and amici badly mischaracterize the role of

state court decisions in federal habeas proceedings both

before and after the 1996 Act. They portray amended

§ 2254(d) as dealing with “secondary conduct” because,

in their view, the habeas statute merely apportions

responsibility for remedying a legally cognizable harm

between state and federal court adjudication.” In this

depiction, “ ‘[p]rimary conduct’ is the conduct of people

in the ordinary course of life . . . [- iJn the present case,

... Aaron Lindh entering the City-County Building with

a gun,” whereas “ ‘[sJecondary conduct’ is the conduct of

adjudication . . . [- iJn the present case, . . . Lindh’s trial.”

CJLF 23-24.

But of course the primary conduct in a federal habeas

case is precisely the state court adjudication that places a

petitioner “in custody in violation of the Constitution.”

28 U.S.C. § 2241(c)(3). The petitioner’s right to federal

habeas relief is created by, and depends solely upon, the

entry of an unconstitutional state court adjudication sub-

jecting him or her to incarceration. Federal habeas courts

in state prisoner cases “have never been” concerned with

adjudicating guilt or with the legality of any other sort of

“primary conduct” than the state court commitment

order which is the basis for a petitioner’s imprisonment.

Herrera v. Collins, 506 U.S. 390, 400-01 (1993).

Both before and under the 1996 Act, the writ has

provided a remedy for unconstitutional actions occurring

in the process of state court adjudication leading to a

petitioner’s incarceration. That adjudication thus cannot

stand in for the federal habeas remedy, any more than USI

Film Product’s disregard of Barbara Landgraf’s “com-

plaints to her immediate supervisor” that another

7 They do not carry this conception to the next logical step

of arguing that laws which alter a court’s standards for

reviewing its own or another court’s actions may never affect

“primary” conduct or matured rights protected by

antiretroactivity norms. That step would make the basic flaw in

their category structure too obvious, in the light of cases like

Plaut v. Spendthrift Farm, Inc., 115 S.Ct. 1447, 1456 (1995) (new

law changing circumstances under which judge could reopen

lawsuit held unconstitutionally “retroactive”).

9

employee was harassing her could stand in for her Title

VII remedy. See Landgraf, 511 U.S. at 248.

There is another reason why the State’s argument

won't wash. Even were the writ a remedy for some

legally redressable “primary conduct” other than the

state court’s unconstitutional adjudication, and even were

the state court’s adjudication a prior and overlapping

remedy for that conduct, a new law’s application to

revoke the second remedy in a case in which the prior

remedy previously had been available would Still be “ret-

roactive” under Landgraf*® An example makes the point.

Assume that C citizen’s property is seized by federal

agents at a time when federal statutes provide two alter-

native remedies for unlawful seizures: an action in the

district court for return of the property (with a six-month

statute of limitations) and an action for money damages

for unreturned property in the Court of Claims (with a

three-year statute of limitations). Then, two years after

the seizure of C’s property, Congress enacts a new stat-

ute, silent on the issue of retroactivity, that (i) shortens

the statute of limitations for the Court of Claims action to

8 Landgraf itself held that a compensatory damages remedy

is a new legal consequence though it overlaps an existing

backpay remedy, because compensation might be awarded

when backpay is not. 511 U.S. at 281-83. And Congress would

not be presumed to withdraw such a remedy retroactively, any

more than to add one, by a statute that was silent on the issue.

See id. at 284 n.36; Pet. Brf. 40 n.29. And the fact that a

discrimination victim had unsuccessfully pursued a statutory

right to backpay in the EEOC prior to suing in court to enforce

the same right would not neutralize the retroactive effect of

applying a new law to withdraw the judicial right of action after

administrative remedies were exhausted and a complaint was

filed in court. See, e.g., Rafferty v. City of Youngstown, 54 F.3d 278,

284 n.3 (6th Cir. 1995); Maitland v. University of Minnesota, 43

F.3d 357, 362-63 (8th Cir. 1994).

10

18 months, or (ii) limits recovery of damages in the Court

of Claims action to cases in which the agents who seized

the property not only seized it unlawfully but were

unreasonable in believing that they had a lawful basis for

the seizure. The destruction of an “accrued” and “existing

cause[ ] of action” by hypothesized change number (i) is,

of course, a paradigmatic case of the kind of new legal

consequence that Congress is presumed not to intend.’

And the destruction of an accrued right of action by

hypothesized change number (ii) is indistinguishable

from that worked either by change number (i) or by

applying the 1996 Act to deny Mr. Lindh’s 1992 petition.

See, ¢.g., Greene v. United States, 376 U.S. 149, 160-63

(1964); Pet. Brf. 40-42 & nn.29, 33.19

Although the State and its amici cite cases they say

would require the application of hypothesized changes (i)

and (ii) to destroy matured causes of action, they can do

so only by not stating the facts (e.g., RB 29-31) or misstat-

ing them (CJLF 23, 26-27). For example, Bruner v. United

States, 343 U.S. 112 (1952), dismissed a pending overtime-

pay suit in the district court on the basis of a new law

confining such suits to the Court of Claims only after

finding — both as to the class of such cases and as to

Bruner’s own case - that “Congress has not altered the

9 United States v. St. Louis, S.F. & T. Ry., 270 U.S. 1, 3 (1926);

see, ¢.g., Fullerton-Krueger Lumber Co. v. Northern Pac. Ry., 266

U.S. 435, 437 (1925); Sohn v. Waterson, 84 U.S. (17 Wall.) 596, 598

(1873).

10 It makes no difference that C thus far has not received

relief because s/he has not yet sought it, while Lindh thus far

has been denied relief because of a constitutional error

committed when he did seek it. In both cases, prior law made

the absence of relief a prerequisite to the remedy that the new

law withdraws.

11

nature or validity of petitioner’s rights or the Govern-

ment’s liability but has simply reduced the number of

tribunals authorized to hear and determine such rights

and liabilities.” Id. at 117. Similarly, in Hallowell v. Com-

mons, 239 U.S. 506 (1916), the Court applied a superven-

ing law in dismissing a pending suit to declare Hallowell

the heir of a deceased Native American only after finding

that the law substituted a new, administrative route to the

same relief and thus had “not extinguish[ed] any liability

incurred under” the former law or “take[n] away [a]

substantive right, but simply change[d] the tribunal that

is to hear [Hallowell’s] case.” Id. at 508. And in Crane v.

Hahlo, 258 U.S. 142 (1922), the Court upheld the applica-

tion of a new law changing the process of reviewing an

assessor’s decision from one set of judicial and adminis-

trative remedies to another only after finding that “a

substantial and efficient remedy remains.” Id. at 146-47

(emphasis added).'' The principle that no new legal

11 See also Republic Nat'l Bank v. United States, 506 U.S. 80,

100 (1992) (Thomas, J., concurring in part) (retroactivity

concerns are absent where law “speak[s] to the power of the

court, rather than to the rights or obligations of the parties”

(emphasis added)); Bell v. New Jersey, 461 U.S. 773, 777 n.3, 782

n.7 (1983) (new law applies when it “merely change[s] the

forum for assertion of a pre-existing right” and “ ‘takes away no

substantive right’ ”); Smallwood v. Gallardo, 275 U.S. 56, 61-62

(1927) (new law applies to bar federal suit challenging local tax

because law “is not like a provision that no action shall be

brought upon a contract previously valid, which in substance

would take away a vested right,” but instead “leave[s] the

taxpayer with[ ] power to resist” the tax in local courts

(emphasis added)); Sherman v. Grinnell, 123 U.S. 679, 680 (1887)

(new law applied because petition it barred “was not brought

until after [new law] went into effect” and state forum

remained); Assessors v. Osbornes, 76 U.S. (9 Wall.) 567, 573-74

(1870) (dismissing suit filed directly in federal court because

plaintiff could litigate same suit in state court or in federal court

12

consequence occurs when Congress replaces the remedy

that was available in the past with a “substantial and

efficient remedy [that] remains” does not countenance -

rather, it affirmatively forbids - amended § 2254(d)’s

application to annul entirely any “remain[ing]” remedy

for Aaron Lindh’s matured cause of action.

B. Section 2254(d) Is Not Procedural, Jurisdic-

tional or Prospective, Nor Would its New Legal

Consequences Be Permissible if it Were

As Landgraf makes abundantly clear, it does not

adopt a jurisprudence of labels - “procedural,” “jurisdic-

tional” or “prospective” — but instead a functional test

that asks whether or not new legal consequences would

attach to completed events.'? Accordingly, even if any of

those labels applied here - none do - the State’s effort to

affix them to § 2254(d) would be pointless. For each is

operative for retroactivity purposes only if it is read

correctly - namely, “merely procedural,” “merely jurisdic-

tional” or “merely about prospective relief” (since any

statute abrogating a matured cause of action completely

on removal from state court); Ex parte McCardle, 74 U.S. (7 Wall.)

506, 515 (1868) (new law applied to withdraw Court’s power to

hear habeas appeal because Congress clearly intended to affect

pending cases and constitutional objections were met by Court's

continuing jurisdiction to hear such cases on original writ).

12 511 U.S. at 270, 274 n.27, 275 n.29; see also id. at 291-92

(Scalia, J., concurring in the judgment). In Justice Brandeis’s

words, “[t}hat a statute shall not be given retroactive effect,

unless such construction is required by explicit language ... is a

rule of general application [which] has been applied by this

court to statutes governing ure... .” United States v. St.

Louis, S.F. & T. Ry., 270 U.S. at 3 (emphasis added); see Amicus

Curiae Brief for the United States at *16 & n.8, Hughes Aircraft

Co. v. United States ex rel. Schumer, 1996 WL 744847 (No.

95-1340).

ee

13

also has the procedural effect of destroying the jurisdic-

tion of the previously cognizant court to afford relief on

that cause of action in the future). And the change in law

worked by amended § 2254(d) as construed below is self-

evidently not merely any of these things.

Not “merely procedural.” The State and its amici

themselves rule out any characterization of § 2254(d), as

interpreted below, as “merely procedural,” because thus

interpreted it “admittedly reduces the likelihood that a

habeas petitioner will be granted relief” (RB 12) by creat-

ing a “ ‘modified res judicata’” defense’> (CJLF 15),

which “substantially alters the federal habeas ‘cause of

action’ ” (WLF 17). As the Court has long recognized, the

creation or withdrawal of defenses to matured causes of

action and all similar changes are both “substantive” and

“retroactive.” See, e.g., Winfree v. Northern Pac. Ry., 227

U.S. 296, 301-02 (1913).

13 “ ‘Res judicata is an affirmative defense. ...‘” Hagen v.

Utah, 510 U.S. 399, 409 (1994).

4 The State asserts that new “standards of review” are

procedural and can change without imposing new legal

consequences. RB 26. The only case it cites, however, United

States v. Mejia, 844 F.2d 209 (Sth Cir. 1988), applied a new judicial

precedent reversing an old one, id. at 211, thus simply

illustrating the “ ‘familiar’” principle, that, while “statutes

operate only prospectively, . . . judicial decisions operate

vely.” Rivers v. Roadway Express, 511 U.S. 298, 311-12

(1994). As the cases cited in Lindh’s brief at 41-42 n.33

make clear, this Court and the lower courts have consistently

treated standards of review as substantive, not only for

retroactivity but also for Erie . See also, e.g., Gasperini v.

Center for Humanities, 116 S. Ct. 2211, 2221 (1996) (Erie case);

Byrd v. Blue Ridge Rural Elec. Coop., 356 U.S. 525, 540 n.15 (1958)

(same); Baines v. Swenson, 384 F.2d 621, 623 n.3 (8th Cir. 1967)

(refusing to apply new statutory standard of review on habeas of

state court factfindings because “federal petition was filed

14

Not “merely jurisdictional.” Even were § 2254(d)

jurisdictional, it would not fall within the Court's retroac-

tivity cases addressing “merely jurisdictional” changes,

such as Bruner, Hallowell, and Crane. For as we demon-

strate above, applying the court of appeals’ interpretation

of § 2254(d) to Lindh’s 1992 petition does not “merely”

replace the existing remedy for his matured cause of

action with a new, “substantial and efficient remedy.”

Crane, 258 U.S. at 147. Rather, it entirely “takes away” any

remedy. Cf. Hallowell, 239 U.S. at 508.

In any event, Ҥ 2254(d) is not, in fact, a jurisdictional

statute” (WLF 19) - as every court of appeals to address

the issue has held.45 When the habeas statute (pre- and

post-1996) intends to withdraw jurisdiction, it does so

explicitly through language such as “[n]o circuit or dis-

trict judge shall be required to entertain,” 28 U.S.C.

§ 2244(a), and “no Federal court thereafter shall have the

before” new law was enacted); McDonald v. Kropp, 373 F.2d 549,

556 n.1 (6th Cir. 1967) (similar). Nor does the immediate

application of the 1919 harmless error law avail the State. Cf.

CJLF 25. Rather than imposing new legal consequences, the 1919

law codified the Court’s harmless error rule, from

which some lower courts recently had deviated. Compare Tevis

v. Ryan, 233 U.S. 273, 289 (1914) (affirming judgment computing

damages erroneously because “error was harmless . . . [and]

rule adopted made no substantial difference in the result”) and

Markham v. United States, 160 U.S. 319, 325 (1895) (similar) with

Rep. of ABA Spec. Comm. to Remedies and Formulate

Proposed Laws to Prevent Delay and Unnecessary Cost in

Litigation, 2 A.B.A. J. 603, 605 (1916) (proposing harmless error

statute to bring practice in aberrant circuits into line with

traditional “American rule”).

5 See, e.g., Davis v. Executive Dir., 100 F.3d 750, 755 n.1 (10th

Cir. 1996); Farmer v. McDaniel, 98 F.3d 1548, 1549 n.1 (9th Cir.

1996); Rehbein v. Clarke, 94 F.3d 478, 481 n.4 (8th Cir. 1996);

Emerson v. Gramley, 91 F.3d 898, 900 (7th Cir. 1996).

ne

15

authority,” id. § 2262(c). Section 2254(d) uses no such

language. Rather, § 2254(d)’s terms are borrowed verbatim

from the neighboring - nonjurisdictional - exhaustion

provision, § 2254(b).¢

Not “merely prospective.” Similarly, the State and its

amici cannot sensibly call the writ “prospective” while

conceding that “[t]he essence of habeas corpus . . . is that

the petitioner asks the court to nullify a previous deci-

sion.”!” CJLF 5. Nor is § 2254(d) itself prospective but,

instead, “quintessentially backward-looking.” Landgraf,

511 U.S. at 282; see § 2254(d) (relief depends on whether

“a State court . . . adjudication . . . resulted in a decision

that was contrary to . . . established Federal law”).

The single case on which the State and amici rely -

American Steel Foundries v. Tricity Cent. Trades Council, 257

U.S. 184 (1921) - seals the point. As it clearly explains,

laws affecting injunctions do not attach new legal conse-

quences to “events completed before [their] enactment”

(Landgraf, 511 U.S. at 270) “because . . . [an] injunction

operates in futuro and the right to it must be determined

as of the time of the hearing.” American Steel Foundries, 257

U.S. at 201 (emphasis added); see Pet. Brf. 41 n.32.

Because injunctions depend on conditions in existence at

%© Sections 2254(b) and (d) both provide that “[a]n

application for a writ of habeas corpus on behalf of a person in

custody p-rsuant to the judgment of a State court shall not be

granted unless [certain conditions are met).” See Granberry v.

Greer, 481 U.S. 129, 131 (1987) (exhaustion statute is

nonjurisdictional); cf. Felker v. Turpin, 116 S.Ct. 2333, 2338 (1996)

(rule that jurisdictional “[rjepeals by implication are not

favored” applies to 1996 Act).

7 See, e.g., Pitchess v. Davis, 421 U.S. 482, 489-90 (1975) (per

curiam) (federal habeas court may order state court to correct

prior invalid conviction by retrying or releasing petitioner but

may not supervise state court’s compliance with order as if it

were an injunction); cases cited in Pet. Brf. 48-49 & n.40.

16

the moment they are issued, and may be modified or

terminated whenever conditions change, neither the right

to obtain one nor the right to keep one in force can

“mature[ ] or become unconditional” until the moment

the court acts. As we emphasize in the next section, the

same is not true of Lindh’s preexisting right to habeas

relief — nor do the State and its amici claim that it is.

C. Applying Section 2254(d) as Read Below Would

Attach New Legal Consequences to “Events

Completed” Before Enactment on Either of the

Two Admissible Understandings of the Events

that Made Mr. Lindh’s Rights Mature and

Become Unconditional

The State criticizes Lindh because, it says, he speci-

fies the filing of his petition, rather than “the date of an

adverse state court decision” (RB 32), as the completed,

pre-Act event to which the application of amended

§ 2254(d) would attach new legal consequences. The State

misunderstands Lindh’s position.

There are a number of conditions precedent to the

maturing of a habeas cause of action. See Pet. Brf. 48-49.

Two of those conditions are satisfied by actions of the

petitioner and the courts: (1) entry of an unconstitutional

state court adjudication subjecting the petitioner to incar-

ceration - which simultaneously satisfies the “constitu-

tional violation” prerequisite to habeas jurisdiction, 28

U.S.C. § 2241(c)(3), and the exhaustion of remedies pre-

requisite to habeas relief, § 2254(b); and (2) this Court’s

denial of certiorari or the expiration of the time for seek-

ing it - which eliminates the exclusive alternative of a

merits ruling on certiorari that would bar subsequent

habeas consideration of any decided claim under

17

§ 2244(c).18 A third possible condition precedent is the

existence of “custody,” which satisfies the final prerequi-

site for habeas jurisdiction, § 2241(c)(3), and makes

habeas corpus causes of action - unlike most others -

dependent upon a condition that is alterable up to the

moment the petition is filed but not thereafter. See Carafas

v. LaVallee, 391 U.S. 234, 238 (1968) (habeas “jurisdic-

tion . . . attache[s]” if petitioner is in custody when

“application was filed” and “is not defeated by [peti-

tioner’s subsequent] release”).

In most cases (including Lindh’s), these conditions

are satisfied in the order described - so that the latest

point at which the cause of action can be said to have

matured and become unconditional is when an individual

in custody files his or her petition. In some cases, how-

ever, filing precedes the exhaustion of state remedies, e.g.,

Sharpe v. Buchanan, 317 U.S. 238, 238-39 (1942) (remanding

for merits adjudication of petition that became exhausted

in state court while federal case was pending on appeal),

or, at least, the denial of certiorari or the expiration of the

time for seeking it (as when a prisoner files a habeas

petition within weeks of the state direct appeal decision).

The operation of the habeas statute thus permits only

two sensible understandings of the point at which the

habeas cause of action has “ ‘matured or become uncon-

ditional.’ ” Bennett v. New Jersey, 470 U.S. at 639. Either the

determinative “events [are] completed” (Landgraf, 511

U.S. at 270) when state remedies have been exhausted

and certiorari has been denied (or the time for seeking it

has expired). Or alternatively, the determinative events

are completed when, in addition to the exhaustion of

state remedies and the denial of certiorari, the “custody”

prerequisite has been satisfied by the filing of the petition

8 The cited statutes are reproduced in Pet. Brf., App. A.

18

while the petitioner is under restraint. Only under the

latter approach would filing usually (although not

always) mark the point when the determinative “events

[are] completed”; and, even then, it would not be the

filing per se but the conjunction of the filing and custody

that is decisive.

Both approaches provide a bright line that is admin-

istrable on the face of any petition that conforms to the

Rules Governing § 2254 Cases. The first approach

(exhaustion and denial of certiorari) has the added vir-

tues of being (1) consistent with the Court’s established

“finality” jurisprudence under Teague v. Lane, 489 U.S.

288, 305 (1989), (2) independent of the contingencies of

filing and of custody’s susceptibility to mooting circum-

stances beyond the control of the petitioner and the

courts (e.g., parole decisions), (3) productive of the same

outcome as the different formulation of the decisive retro-

activity event in Justice Scalia’s concurring opinion in

Landgraf,9 and (4) coherent with the roles of certiorari

19 Justice Scalia focuses on the “relevant activity that the

[new] rule regulates” as revealed by the rule’s “purpose.” 511

U.S. at 291 (Scalia, J., concurring in judgment). As interpreted

below, § 2254(d)’s purpose is to accord “deference to state

adjudications of a certain type - i.e., adjudications “on the

merits” that, even if “wrong,” are not “grave[ly]” so. § 2254(d);

JA 197, 181; see WLF 18 (§ 2254(d)’s “clear purpose .. . is to place

more responsibility in the hands of the state courts, in

adjudicating claims of constitutional violations, and by

placing greater trust in the state courts, . . . [to] make it even

more likely that those state courts will vigorously protect the

constitutional rights of their citizens” and that “this Court (will

do the same] on writ of certiorari”). Under Justice Scalia’s

approach, therefore, the relevant events are the State court's

provision of the specified type of adjudication and the

immunization of that adjudication from revision by this Court.

19

and habeas as alternative remedies2° - one discretionary

with the Court, one a matter of right - concerned with

rectifying identical constitutional violations occurring in

the course of state court adjudications, with the habeas

as-of-right remedy becoming unconditional when the

alternative discretionary remedy ceases to be available.

The alternative approach (exhaustion, denial of cer-

tiorari, and the conjunction of custody and filing) has

none of these virtues. It does, however, conform to the

“cases pending” line in § 107(c) and to a number of the

Court’s retroactivity precedents.2!

20 See, e.g., Reed v. Farley, 114 S. Ct. 2291, 2297 (1994); Wills

v. Texas, 511 U.S. 1097 (1994) (O’Connor, J., concurring in the

denial of certiorari); Spencer v. Georgia, 500 U.S. 960 (1991)

(Kennedy, J., concurring in the denial of certiorari).

21 In a number of cases cited by Landgraf as authoritative,

the new law in question postdated some formal action taken by

a party to effectuate a cause of action, and the court said or

implied that the right’s formal “assert[ion]” was the event to

which the new law would attach new legal consequences.

Greene v. United States, 376 U.S. at 153, 160 (“petitioner’s rights

matured and were asserted” upon filing of administrative

petition); see Bennett v. New Jersey, 470 U.S. at 637, 639-40

(government's claim “ ‘had matured or become unconditional’ ”

when it issued “determination letter” demanding that grantee

return money); United States v. Magnolia Petr. Co., 276 U.S. at 162

(taxpayer’s “claims [became] fixed in accordance with earlier

[statutory] provisions” when it filed demand for repayment of

excessive taxes); United States Fidelity & Guar. Co. v. United States

ex rel. Struthers Wells Co., 209 U.S. at 315 (“respective rights of

the parties [were] settled, and the cause of action [was] already

in existence” when subcontractor demanded payment from

contractor); Dash v. Van Kleeck, 7 Johns. 477, 479-80, 483-84, 494

(N.Y. 1811) (Kent, C.J.) (adopting view that “plaintiff at the

commencement of his suit, had a vested right of recove

against [defendant]”); see also Sherman v. Grinnell, 123 U.S. at

679-80 (no retroactivity problem where petition that new law

20

The Court needs not choose between these alterna-

tives in order to decide this case. Under either, Aaron

Lindh’s habeas corpus cause of action matured and

became unconditional at least four years before § 2254(d)

became law.

CONCLUSION

The Court should reverse the decision of the court of

appeals.

Respectfully submitted,

James S. LiepMaANn*

435 W. 116th St., Box B-16

New York, NY 10027

(212) 854-3423

*Counsel of Record

RicHarp C. NeuHOFF

600 Harrison St., Suite 535

San Francisco, CA 94107

(415) 543-0433

KerrH A. FInDiey

975 Bascom Mall

Madison, WI 53706

(608) 263-3380

Counsel for Petitioner

April 4, 1997

forbade litigant to file “was not sued out. . . until April 8, 1887,

which was after [the March 3, 1887] statute”).