# Reply Brief — Lindh v. Murphy

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0085%3A08

## Record

- **Collection:** Supreme Court brief
- **Document type:** Reply Brief
- **Published:** January 1, 1997
- **Citation:** 521 U.S. 320

## Text

? 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”).

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0085%3A08. Public record. Not legal advice.