Petitioners Brief — Stewart v. Martinez-Villareal

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No. 97-300 *

In The

Supreme Court of the United States

October Term, 1997

TERRY L. STEWART, DIRECTOR,

ARIZONA DEPARTMENT OF CORRECTIONS, et al.,

Petitioners,

Vs.

RAMON MARTINEZ-VILLAREAL,

Respondent.

On Writ Of Certiorari To The

United States Court Of Appeals

For The Ninth Circuit

PETITIONERS’ BRIEF ON THE MERITS

Grant Woops

Attorney General

Pau. J. McMurpie

Chief Counsel

Criminal Appeals Section

Bruce M. Ferc

Assistant Attorney General

(Counsel of Record)

400 W. Congress, Bldg. S-315

Tucson, Arizona 85701-1367

Telephone: (520) 628-6504

Attorneys for Petitioners

COCKLE LAW BRIEF PRINTING CO,, 225-6964

OR CALL COLLECT (402) 342-283

QUESTIONS PRESENTED FOR REVIEW

The Ninth Circuit held that limitations on second or

successive habeas corpus petitions found in the 1996 Antiter-

rorism and Effective Death Penalty Act (AEDPA) apply to all

habeas proceedings (even “original” Supreme Court peti-

tions), and that enforcing those limitations to preclude consid-

eration of a claim of incompetency for execution would

violate the Suspension Clause of the Constitution. To avoid

such a constitutional problem, the Ninth Circuit construed

competency for execution claims as being so unique that they

are not subject to the AEDPA’s limitations. Each of these

conclusions contradicts a direct or implicit holding of /n re

Medina, 109 F.3d 1556 (11th Cir.), cert. denied, 117 S. Ct.

1331 (1997), as well as being subsequently rejected by /n re

Davis, 121 F.3d 952 (Sth Cir.), app. for stay and habeas

corpus denied, No. 97-5798 (1997). This circuit split raises

the following questions:

1. Did Congress intend the AEDPA’s limitations on

second or successive habeas corpus petitions to apply to all

claims and in every court, including competency for execu-

tion claims and applications for “original” Supreme Court

habeas corpus writs?

2. Would applying the AEDPA to prevent consideration

of a claim of incompetency for execution, which is raised in a

second or successive habeas corpus petition, constitute a

violation of the Suspension Clause?

3. By what means can this Court review these issues?

PARTIES TO THE PROCEEDINGS BELOW

This case stems from a habeas corpus proceeding in

which Petitioners here, Terry L. Stewart (Director of the

Arizona Department of Corrections) and Grant Woods (Attor-

ney General of the State of Arizona) were the respondents.

That proceeding was initiated by Ramon Martinez- Villareal, a

prisoner in the custody of Petitioner Stewart under sentence

of death. Relief is sought against an order issued by a panel of

judges of the Ninth Circuit Court of Appeals comprised of

Judges Edward Leavy, Dorothy W. Nelson, and Thomas G.

Nelson.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW............ i

PARTIES TO THE PROCEEDINGS BELOW ......... il

Bees OF AUTIOORITIOS .... 2. ccc cece cece cc ceeees iv

EEE l

STATEMENT OF JURISDICTION ................... l

ED on occ cccccccscceccccccccs l

IE OS oo ccc ccccccscccceces 2

SUMMARY OF ARGUMENT ...................005. 7

EEE EE re 9

I THE AEDPA’S RESTRICTIONS ON SUCCESSIVE

HABEAS CORPUS PETITIONS APPLY TO ALL

KINDS OF CLAIMS AND TO ALL COURTS.... 9

If THE SUSPENSION CLAUSE IS NOT VIOLATED

BY THE AEDPA’S RESTRICTIONS ON SUCCES-

SIVE PETITIONS, SO THE NINTH CIRCUIT

ERRED IN RECONSTRUCTING THE STATUTE

TO AVOID THE NONEXISTENT VIOLATION... 18

Ill REGARDLESS OF HOW THE COURT DETER-

MINES THE MERITS OF THE CLAIMS PRE-

SENTED BY PETITIONERS, THE COURT

POSSESSES JURISDICTION OVER THOSE

TABLE OF AUTHORITIES

Page

Cases

Ahrens v. Clark, 335 U.S. 188 (1948)................. 36

Allen v. McCurry, 449 U.S. 90 (1980). ................ 43

Brecht v. Abrahamson, 507 U.S. 619 (1993)........... 22

Brown v. Allen, 344 U.S. 443 (1953) .............. 36, 37

Carbo v. United States, 364 U.S. 611 (1961)........... 24

Coleman v. Thompson, 501 U.S. 722 (1991)........... 43

De Beers Consol. Mines v. United States, 325 U.S.

BES GRE ccccdececdccescdgtetetsadeusbescescesces 9

Demosthenes v. Baal, 495 U.S. 731 (1990) ............ 44

Duckworth v. Eagan 492 U.S. 195 (1989) ............. 38

Edelman v. Jordan, 415 U.S. 651 (1974)............... 22

Ex parte Bollman, 8 U.S. (4 Cranch) 75 (1807).... passim

Ex parte Collett, 337 U.S. 55 (1949)..............04.5. 46

Ex parte Dorr, 44 U.S. (3 How.) 103 (1845)........... 30

Ex parte Grossman, 267 U.S. 87 (1925)............... 24

Ex parte McCardle, 74 U.S. (7 Wall.) 506 (1868) ... 8, 34, 35

Ex parte Watkins, 3 Pet. 193 (1830) ............... 24, 30

Ex parte Yerger, 75 U.S. (8 Wall.) 85 (1869)....... 15, 35

Fay v. Noia, 372 U.S. 391 (1963).............. 36, 42, 43

Felker v. Turpin, __ U.S. __., 116 S. Ct. 2333

GRU o pecccccccecccncscedctbonesancascceseste passim

Ford v. Wainwright, 477 U.S. 399 (1986)......... 4, 5, 45

Graham v. Lynaugh, 854 F.2d 715 (Sth Cir. 1988)...... 45

TABLE OF AUTHORITIES — Continued

Page

Greenawalt v. Stewart, 105 F.3d 1268 (9th Cir. 1997) ..5, 42

Herrera v. Collins, 506 U.S. 390 (1993)................ 4

Idaho v. Coeur d'Alene Tribe of Idaho, ___ U.S. ___,

Se Ge, EE cdedduneandesadecesesecceess 44

In re Davis, 121 F.3d 952 (Sth Cir. 1997)......... passim

In re Medina, 109 F.3d 1556 (11th Cir. 1997) ..... passim

In re Turner, 101 F.3d 1323 (9th Cir. 1996) ........... 18

Johnson v. Robison, 415 U.S. 361 (1974).............. 47

Jones v. Squier, 195 F.2d 179 (9th Cir. 1952).......... 22

Kansola v. Civiletti, 630 F.2d 472 (6th Cir. 1980)...... 22

Kaufman v. United States, 394 U.S. 217 (1969)........ 37

Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992)........... 43

Kilpatrick v. Texas & Pacific Ry. Co., 337 U.S. 75

DT sc cueenaseeiedabeesetees edbendeetescasceces 46

Kuhiman v. Wilson, 477 U.S. 436 (1986).............. 11

Lehman v. Lycoming County Children’s Services, 458

es Gee Cs cbbe beaded cael cde chapidscicscccece ce 43

Lindh v. Murphy, 96 F.3d 856 (7th Cir. 1996) ......... 22

Lindh v. Murphy, __ U.S. __, 117 S. Ct. 2059

i Siit pike cubes Geneetettses basesaseusec 14, 15

Lonchar v. Thomas, ___ U.S. __, 116 S. Ct. 1293

Addon te belrwaewevesoedecscoevccecs 5, 14, 38, 40

Lockhart v. Fretwell, 506 U.S. 364 (1993)............. 41

Maggio v. Fulford, 462 U.S. 111 (1983)............... 45

TABLE OF AUTHORITIES — Continued

Page

Martinez-Villareal v. Arizona, 493 U.S. 874 (1989)...... 2

Martinez-Villareal v. Arizona, 506 U.S. 893 (1992)...... 3

Martinez- Villareal v. Arizona, 117 S. Ct. 1840 (1997)..... 4

Martinez-Villareal v. Lewis, 80 F.3d 1301 (9th Cir.

SE deSb curds dccncnccecateedéoneuseeecdeussesbet 3

Martinez- Villareal v. Stewart, 118 F.3d 625 (9th Cir.

BE eocccausepaccbsie ds dbctdcdddduaethectene passim

Matsushita Electrical Industrial Co., Inc., v. Epstein,

——_ we 1 5 lll CR 43

McCleskey v. Zant, 499 U.S. 467 (1991) ....... 20, 24, 35

McNally v. Hill, 293 U.S. 131 (1934)................. 30

McNary v. Haitian Refugee Center, Inc., 498 U.S. 479

GROEN 6 6c on gcd escands cndeedboash ic ccecdscectonds 47

Miller v. Fenton, 474 U.S. 104 (1985)................. 44

Myers v. United States, 272 U.S. 52 (1926) ........... 34

Printz v. United States, 117 S. Ct. 2365 (1997)........ 31

Schneckloth v. Bustamonte, 412 U.S. 218 (1973)....22, 39

Shaw v. Armontrout, 900 F.2d 123 (8th Cir. 1990)..... 45

State of Maryland v. Soper, 270 U.S. 9, 46 S. Ct. 185

REE RE Se ee ee eee 49

State v. Martinez-Villareal, 145 Ariz. 441, 702 P.2d

GO CEPR e cc cncemencccaacccsccccaccepecenepeecesac 2

vii

TABLE OF AUTHORITIES — Continued

Page

Stone v. Powell, 428 U.S. 465 (1976).............. 37, 44

Sumner v. Mata, 449 U.S. 539 (1981).............. 36, 44

Swain v. Pressley, 430 U.S. 372 (1977) ..........0055. 21

Teague v. Lane, 489 U.S. 288 (1989) ................. 38

United States v. Anselmi, 207 F.2d 312 (3d Cir. 1953) .... 22

United States v. MacCollom, 426 U.S. 317 (1976)...... 22

United States v. National City Lines, Inc., 337 U.S.

PRS hednebbesebeSsesas es des veccccuscccecese 46

Wainwright v. Sykes, 433 U.S. 72 (1977).............. 43

Weeks v. Jones, 52 F.3d 1559 (1ith Cir. 1995)......... 45

Whitney v. Dick, 202 U.S. 132 (1906) ................ 36

Will v. United States, 389 U.S. 90 (1967)............. 49

Withrow v. Williams, 507 U.S. 680 (1993)............. 43

CONSTITUTIONAL PROVISIONS

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US. Const., ast. 1, § D, OF. BZ... .cccccccccees 1, 6, 19, 20

ee I MED BS cece ccc ctcccccccccceevccccscese 37

STATUTES

pt Ti ononnccacceccoccencddaddéve cheobddctds |

Be Cen Oh, MEER cc ccccccccccceccovessoegsoceses 1, 46

, pA PP PPPPTITITITITLITTL ITT 48

viii

TABLE OF AUTHORITIES — Continued

28 U.S.C.

A.R.S. §§

Page

D ED . ctedeetc6eues Cobtboneenettac passim

D Be n.0 6o5h0000n5 60000 been bonnedtenneanel 43

Pic chaseenséees scenesaaveanacnatl 7, 13, 14

TD kéncpeeeenc dias dans ocaceshuedene 14

SE 54.56 40s 6s 0566 000 68400680 Neemnel 14

DMs ebevveecocdevaedcedoshacdbeodereaben 14

SS Rv rit Te ee 14, 36

Dh Php adesenetbesesduand cebenhs 2, 5, 10, 14

i EE a 66 0wnceces bene saetenseccapadasadl 1]

KR . TTC 6, 9, 10, 11, 12, 47

re ee passim

tins cheek’ 69 0dbueeeainl passim

§ 2244(b)(2)(A). .. 0... eee eee enceneubs 5, Il

§ 2244(b)(2)(B)(i) & (ii)... eee eee, 5

DP Lec ccbubs sbeaseeeens 11, 14, 15, 16

SF errr 4, 45

DP Es 60 00 60scccaseseee 9, 45, 46, 47

De Mn ee bee ebcoddscocbacctcsannesennsien 14

De sthbodubtccodocesececcesdsesddebes 13

DD cannrcdéeantcdeeseseccescocebiwat 14

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DP Ee ebccccccecs pc bcdoeduawesvopenete 10, 14

SE GP ED coccccccccsccoddésae'shoebebees 3

TABLE OF AUTHORITIES — Continued

Page

RuLes

Rule 9(b), Habeas Corpus Rules ................... 11, 19

Rule 10, Rules of Supreme Court..................0.55. l

Rule 20, Rules of Supreme Court.................. 47, 48

Rule 20.1, Rules of Supreme Court ..................5. l

Rule 20.4, Rules of Supreme Court ................... 14

Rule 20.4(a), Rules of Supreme Court................. 17

es ee SE EE no a bn caen ence esesoes nesees 3

OrHer AUTHORITIES

Henry J. Friendly, /s Innocence Irrelevant? Collateral

Attack on Criminal Judgments, 38 U. Cm. L. Rev.

SEE Goda bae bene cugdbbecdeccneuscececcce 23, 43

Rex A. Collings, Jr., Habeas Corpus for Convicts -

Constitutional Right or Legislative Grace?, 40 Cav.

ip EE cog Che SEs oceesresesbotececes 23, 25

R. Srern er Av., Supreme Court Practice at 493-94

ee ST nc cuccdesccccccneecccecces 46, 48

Paul M. Bator, Finality in Criminal Law and Federal

Habeas Corpus for State Prisoners, 76 Harv. L.

Sh Ci ets neces cheepeeaensecapeecetececes 22

Dallin H. Oaks, Habeas Corpus in the States -

1776-1865, 32 U. Cu. L. Rev. 243, 243-44 and nn.

MP enh eshebeébee net eas ec eecosepens 24, 25, 27

Wiuwiam F. Duxer, A ConstiruTionaAt History or

Hapeas Corpus 115 (1980) ..............45.5. 25, 28, 39

TABLE OF AUTHORITIES — Continued

Frank H. Hurp, A Treatise ON THE RiGut of PERSONAL

LIBERTY AND ON THE Wait or Haseas Corpus 128

Ss vciutebandtdcwakiescdsclakesunesaaees

2 Max FarrAND, Recorps OF THE FEDERAL CONVENTION

ey. FE go rere ere er

Tue Feperauist Papers at vii (C. Rossiter ed. 1961)..

Mark E. Nesty, Jr., THe ABRAHAM LINCOLN ENCYCLOPE-

pia, “Habeas Corpus,” 132-35 (1982)............

In re Merryman, 17 Fed. Cas. 144 (1861), reprinted in

Epwarp McPuerson, Tue Pourricat History or THE

Unrrep States or AMERICA Durinc THE Great REBEL-

RS Te EE 8.4 00 boa nh osin ewe bbeeaneeesads

4 Coiitecrep Works or ABRAHAM LINCOLN 429 (R.

I i ns 4 ng nuh 06 bebe esha ct bbaeen van

Louis H. Pollak, Proposals to Curtail Federal Habeas

Corpus For State Prisoners, 66 Yate L.J. 50, 63

GUM Ces Cento deddcbncdusd cwbbecubOeees benéess

JosepHine R. Potuto, Prisoner CoLLaATeRAL ATTACKS

8B Ff y f RRP RAR Fer eee

Dallin H. Oaks, Legal History in the High Court -

Habeas Corpus, 64 Micn. L. Rev. 451 (1966)....

Lewis Mayers, The Habeas Corpus Act of 1867: The

Supreme Court as Legal Historian, 33 U. Cm. L.

Be Ban cnns cciddntiasetnen te skbtie oles

Clarke D. Forsythe, The Historical Origins of Broad

Federal Habeas Review Reconsidered, 70 Norre

— Fe 8 fo ae ee

Page

OPINION BELOW

The opinion staying Respondent’s execution and ordering

briefing of the relationship between the Antiterrorism and

Effective Death Penalty Act of 1996 (AEDPA) and the Sus-

pension Clause of the United States Constitution is published

as Martinez-Villareal v. Stewart, 118 F.3d 625 (9th Cir. 1997).

(J.A. at 170.) The opinion embodying the court of appeals’

construction of the AEDPA to avoid the perceived Suspension

Clause issue is published as Martinez-Villareal v. Stewart,

118 F.3d 628 (9th Cir. 1997). (J.A. at 179.)

STATEMENT OF JURISDICTION

Petitioners requested issuance of either a statutory writ of

certiorari or an extraordinary writ (mandamus, prohibition, or

common law writ of certiorari), to enable this Court to review

the decision in Martinez-Villareal v. Stewart, 118 F.3d 628

(9th Cir. 1997). The Ninth Circuit issued its decision on June

23, 1997. Petitioners filed their petition on August 18, 1997,

within the 90-day limit for a statutory writ of certiorari.

Petitioners contend that this Court has jurisdiction pursuant to

United States Constitution Article III, Section 2; 28 U.S.C.

§§ 1254(1) and 1651(a); and Supreme Court Rules 10 and

20.1. This Court granted a “writ of certiorari” on October 14,

1997, without specifying the form of certiorari contemplated.

Details concerning jurisdiction are addressed in Argument III.

PRO“ ISIONS INVOLVED

The Suspension Clause, Article I, Section 9, Clause 2, of

the Constitution:

The Privilege of the Writ of Habeas Corpus shall

not be suspended, unless when in Cases of Rebel-

lion or Invasion the Public Safety may require it.

28 U.S.C. § 1254:

Cases in the courts of appeals may be reviewed by

the Supreme Court . . . (1) By writ of certiorari

granted upon the petition of any party to any civil

or criminal case, before or after rendition of judg-

ment or decree .. .

28 U.S.C. § 1651(a):

The Supreme Court . . . may issue all writs neces-

sary Or appropriate in aid of their respective juris-

dictions and agreeable to the usages and principles

of law.

28 U.S.C. § 2244 (as amended in 1996): See Appendix A

reflecting changes effected by P.L. 104-132, Antiterrorism

and Effective Death Penalty Act of 1996. A.R.S. §§ 13-4021

to -24. (See Appendix B, to Certiorari Petition.)

STATEMENT OF THE CASE

A. General Procedural History.

Ramon Martinez- Villareal (Respondent) was convicted of

two murders and sentenced to death, based on two aggrava-

ting factors (depravity — he boasted to a traveling companion

that he had killed the helpless victims merely to show how

“manly” he was — and commission for pecuniary gain) that

were not offset by any mitigation. The Arizona Supreme

Court affirmed the convictions and sentences. State v. Mar-

tinez-Villareal, 145 Ariz. 441, 702 P.2d 670, cert. denied, 474

U.S. 975 (1985).

Beginning in 1986, Martinez-Villareal, represented by

various attorneys, litigated several federal habeas corpus peti-

tions and two state post-conviction (“Rule 32”) petitions,

obtaining stays of execution but no substantive relief in any

of them. Martinez-Villareal v. Arizona, 493 U.S. 874 (1989)

(denying certiorari in second Rule 32 proceeding). In 1990,

the district court issued a stay of execution and appointed yet

another attorney (Sean Bruner) to represent Martinez-Vil-

lareal. In 1991, Bruner suggested, for the first time, that

Martinez-Villareal might be mentally incompetent to be exe-

cuted, so the district court ordered the pending habeas peti-

tion dismissed without prejudice, allowing the matter to be

litigated in the state courts.

The competency for execution claim, together with 30

other claims, was raised in a third state post-conviction relief

petition, but the trial court summarily denied relief, ruling

that all but three of the claims were precluded, and that those

three raised nothing on which relief could be granted. The

competency for execution claim was denied because it should

not have been brought in a Rule 32 proceeding at all, but

under a separate statute specifically dealing with such claims,

A.R.S. §§ 13-4021 to -24. (See Appendix B to certiorari

petition.) The Arizona Supreme Court denied review and this

Court denied certiorari. Martinez-Villareal v. Arizona, 506

U.S. 893 (1992).

Bruner then filed an amended habeas corpus petition,

arguing many of the claims presented in the Rule 32 proceed-

ing. The district court rejected most of them, but ordered that

Martinez-Villareal be resentenced, on the theory that he had

received ineffective representation during the original sen-

tencing. The district court left unresolved the issue of Mar-

tinez-Villareal’s competency to be executed, holding that the

claim was not “ripe” for decision — there was then no warrant

for his execution and the claim had not been exhausted in the

state courts, because no proceeding had ever been brought

under the state’s competency statute. On appeal, the Ninth

Circuit vacated the resentencing order so that Martinez-Vil-

lareal was not granted relief of any kind. Martinez- Villareal v.

Lewis, 80 F.3d 1301 (9th Cir.), cert. denied, 117 S. Ct. 588

(1996). Left unresolved was the competency issue, which the

court found had been brought to the federal courts “prema-

ture[ly]”; it specified that its order “to enter judgment deny-

ing the petition [was] not intended to affect any later

litigation of that question.” 80 F.3d at 1307 and 1309 n.1.

In early 1997, the defense finally filed a motion under the

statute dealing with competency for execution, requesting a

hearing. The Arizona Supreme Court issued an execution

warrant for April 16, 1997, but reset the execution to May 21,

1997, to allow Martinez-Villareal more time to prepare for the

hearing. (J.A. at 27.) Having heard four days of testimony, the

trial judge concluded that, “Defendant is aware that he is to

be punished for the crime of murder and [ ] he is aware that

the impending punishment for that crime is death; that the

Defendant, Ramon Martinez-Villareal is therefore competent

to be executed under the laws of the State of Arizona.” (J.A.

at 48.) On May 16, 1997, the Arizona Supreme Court unani-

mously agreed that Martinez-Villareal is competent for execu-

tion and this Court denied certiorari. Martinez-Villareal v.

Arizona, 117 S. Ct. 1840 (1997).

B. Development of the Successive Petition/Suspension

Clause Issue.

On May 14, 1997, the Federal Public Defender’s Office

filed a motion requesting that the district court appoint

experts to examine and test Martinez- Villareal, in anticipation

of filing a “supplemented” habeas petition presenting the

competency for execution issue. (J.A. at 30.) Petitioners

argued that Martinez-Villareal was in effect initiating a suc-

cessive petition, but that the permission from the court of

appeals required by 28 U.S.C. § 2244(b)(3)(A), as amended

by the 1996 Antiterrorism and Effective Death Penalty Act

(“AEDPA”), had not been obtained, so that the district court

lacked authority to grant the relief requested. (J.A. at 65.) On

May 16, 1997, the district court agreed with Petitioners and

denied Martinez-Villareal’s request (J.A. at 101), and he

appealed. Although it denied all other relief, the Ninth Circuit

ordered that the execution be stayed and that further briefing

be submitted concerning whether the AEDPA’s limitations on

successive petitions, as applied to competency for execution

claims, amounted to an unconstitutional suspension of the

writ of habeas corpus. Martinez-Villareal v. Stewart, 118 F.3d

625 (9th Cir. 1997). (J.A. at 170.)

Following oral argument, the Ninth Circuit issued the

opinion which is the subject of this case. Martinez-Villareal v.

Stewart, 118 F.3d 628 (9th Cir. 1997). (J.A. at 179.) Citing

Herrera v. Collins, 506 U.S. 390, 406 (1993), the majority

opinion stated that claims of incompetency for execution,

which were first recognized as possessing a constitutional

basis in Ford v. Wainwright, 477 U.S. 399 (1986), were to be

“properly considered in proximity to the execution.” 118 F.3d

at 630. Hence, when Martinez-Villareal first raised his com-

petency claim in federal court, no execution warrant was

operative, so the claim had not been addressed because of its

prematurity. /d. However, the majority believed that, even if

there had been an execution warrant pending at the time that

Martinez-Villareal first raised the competency claim in fed-

eral court, it would still have been premature, because of the

statement in Lonchar v. Thomas, __ U.S. __, 116 S. Ct.

1293, 1297 (1996), that, “if the district court cannot dismiss

the [first habeas] petition on the merits before the scheduled

execution, it is obligated to address the merits and must issue

a stay to prevent the case from becoming moot.” Thus,

because a stay would necessarily have issued to permit fed-

eral court consideration of the rest of Martinez-Villareal's

claims, and that stay would automatically have rendered the

execution non-imminent, the competency claim would still

have been premature and not open to consideration in the first

habeas proceeding. /d.

The situation is further complicated by the passage of the

AEDPA. The majority below recognized that 28 U.S.C.

§ 2244, as amended, divides successive habeas petitions into

just two categories: those raising claims that were presented

in a previous petition, and those raising claims that were not

presented in a previous petition. Those in the first category

are required, without exception, to be dismissed, while those

in the second category will also be dismissed, unless they can

pass thregh the narrow “gateway” exceptions permitted by

§ 2244(b)(2). Id. at 630-31. The first exception, subsection

2244(b)(2)(A), for claims relying on a new rule of constitu-

tional law that was unavailable at the time of the applicant's

first habeas petition, does not apply to Martinez-Villareal’s

competency for execution claim, because such claims have

been available since Ford v. Wainwright was decided in 1986.

Id. at 631. The second exception, subsection 2244(b)(2)(B)(i)

and (ii), involving newly discovered facts, also is unavailable

in a situation like this one, because of the requirement that the

new evidence be such as would establish that no reasonable

factfinder “would have found the applicant guilty of the

underlying offense.” This limitation excludes all claims -

including competency for execution — that raise only sentenc-

ing matters. /d.; see also Greenawalt v. Stewart, 105 F.3d

1268, 1277 (9th Cir.), cert. denied, 117 S. Ct. 794 (1997); In

re Medina, 109 F.3d 1556, 1564-65 (11th Cir.), cert. denied,

117 S. Ct. 1331 (1997); In re Davis, 121 F.3d 952, 955 (Sth

Cir. 1997) (concession by petitioner under death sentence that

claim of incompetency for execution not cognizable under

this exception). “It thus appears that the automatic stay

accompanying a first habeas petition and the inapplicable

gateways provided by the AEDPA foreclose any federal

review of a death row inmate’s competency to be executed.”

Martinez-Villareal v. Stewart, 118 F.3d at 631.

The court of appeals believed that this situation created a

“predicament” of constitutional proportions, in that the pre-

clusion of habeas corpus review might amount to a violation

of the Suspension Clause, United States Constitution, Article

I, Section 9, Clause 2. Jd. The majority opinion rejected the

possibility of certiorari review by this Court as an adequate

solution to the perceived problem because that is part of the

direct review process, rather than a mode of plenary collateral

review. /d. at 631 and n.3. It also found no solution in this

Court's authority to issue “original” writs of habeas corpus

because, contrary to the Eleventh Circuit’s conclusion in

Medina, 109 F.3d at 1564, it concluded that § 2244(b)'s

restrictions on successive petitions apply to petitions initiated

in this Court, as well as in the lower courts. /d. at 631-32. To

avoid the hypothesized “difficult constitutional question,” the

majority below effectively rewrote the AEDPA, determining

that, henceforth, competency for execution claims will consti-

tute a new category of successive claims, which will be

required to be brought in multiple habeas petitions, but

which, nonetheless, will not be precluded as successive, on

the theory that bringing them initially when they are “prema-

ture” is the same as not having brought any cognizable prior

petition at all. /d. at 632-34. Utilizing this transmogrified

view of a “successive” petition, the majority deemed the

requirement that a court of appeals grant or deny permission

for the filing of a successive petition to be completely inap-

plicable to competency for execution claims, so it simply

transferred Martinez-Villareal’s second habeas petition to the

district court for further proceedings. /d. at 634-35. The third

member of the court below believed that the Suspension

Clause issue could not be avoided in this manner, and that the

AEDPA’s restrictions on habeas review as applied to compe-

tency for execution claims violate the Suspension Clause.

However, he concurred in the result, considering the transfer

of the competency claim to the district court a satisfactory

resolution. /d. at 635.

SUMMARY OF ARGUMENT

The court of appeals’ analysis of the case depends in part

upon the Act's restrictions on successive petitions applying to

“original” petitions for habeas corpus filed in this Court; if

the restrictions do not apply, then Respondent obviously still

has that habeas remedy available to him, and there can be no

Suspension Clause problem. Although the matter was dis-

cussed in Felker v. Turpin, __ U.S. __, 116 S. Ct. 2333,

2337-39 (1996), the Court's statement, “Whether or not we

are bound by these restrictions, they certainly inform our

consideration of original habeas petitions,” left some doubt

about the matter. Petitioners contend that the AEDPA’s

restrictions on successive petitions do apply to petitions filed

in this Court. This Court has recognized throughout its history

that the authority of all the federal courts to issue habeas

writs, itself included, is granted by statute. /d. at 2338 and

n.1, and 2340 (tracing current 28 U.S.C. § 2241 back to the

Judiciary Act of 1789 and citing Ex parte Bollman, 4 Cranch

75, 94 (1807)). Since the source of this Court's authority is

identical t> the source of authority for the lower federal

courts, it necessarily follows that this Court is likewise

“bound” by the restrictions on that authority enacted by the

AEDPA. Hence, the Suspension Clause issue cannot be

avoided through use of “original” petitions to this Court.

The real question, therefore, is what the Suspension

Clause (which contains no internal definitions) actually pro-

tects. The language of the Clause, the manner of its passage,

and the precedents of this Court (beginning with Bollman)

make clear that the Clause was not intended to create a

substantive new right, but only to protect from Congressional

suspension a right that already existed, which was defined by

the Englisi common law (particularly as regularized by the

English Habeas Corpus Act of 1679). Those English sources,

thoroughly familiar to the Framers, and largely incorporated

into the writ-authorizing Section 14 of the Judiciary Act of

1789, were designed to protect against arbitrary imprisonment

without trial, not to provide qnas) appellate review of crimi-

nal cases after conviction. Morevver, the Judiciary Act of

1789 (passed by the First Congress, which contained many of

the members of the Constitutional Convention), by its very

terms, excluded from the privilege persons under state cus-

tody. Thus, the Framers plainly intended the Suspension

Clause only to protect the privilege as it existed at common

law, so that no constitutional protection was afforded to

persons already under conviction, and particularly not state

prisoners.

Although the federal habeas writ has subsequently been

extended to apply to persons after conviction, including state

inmates, those extensions all rest on Congressional enact-

ments, particularly the Judiciary Act of 1867. This Court has

never held that a Congressional restriction on the use of

habeas transgressed the Suspension Clause. It follows that

what Congress has bestowed, Congress is constitutionally

permitted to regulate and restrict. Where Congress determines

to withdraw habeas jurisdiction, applicants have no constitu-

tional basis for complaint, regardless of what their subjective

expectations of relief may have been. See, e.g., Ex parte

McCardle, 7 Wall. 506 (1868) (acknowledging loss of juris-

diction over habeas appeal, even after it had been argued and

submitted for decision, because of revocation of authorizing

statute). Therefore, that Martinez-Villareal anticipated being

able to litigate his competency claim by returning to the

district court when that claim had become ripe, but his expec-

tation will be thwarted by the intervening enactment of the

restrictions on successive petitions, does not demonstrate that

the Suspension Clause will be violated. And since there is no

constitutional violation to avoid, the court of appeals’ disem-

bowelment by “construction” of the AEDPA is error not to be

tolerated.

The appropriate jurisdictional basis for the Court to hear

this matter is complicated by an AEDPA provision, 28 U.S.C.

§ 2244(b)(3)(E), which states that courts of appeals’ grants or

denials of authorization to file successive habeas petitions

shall not be the subject of petitions for rehearing or certiorari.

However, since in this case the Ninth Circuit purported not to

be granting or denying permission to file a successive peti-

tion, but rather, were construing the Act so as to exclude

Martinez-Villareal’s petition from even being considered

“successive,” Petitioners should be deemed entitled to come

before the Court by means of ordinary, statutory certiorari.

However, if the statutory preclusion on review by certiorari is

deemed applicable here, it is certain that this case presents

appropriate grounds for consideration pursuant to the All

Writs Act, 28 U.S.C. § 1651(a). See, e.g., De Beers Consol.

Mines v. United States, 325 U.S. 212, 217 (1945). Hence,

though it remains for the Court to determine which basis is

most appropriate, it is certain that the case is properly before

it.

The Court should therefore hold: that this case is prop-

erly before it; that the AEDPA restrictions on successive

habeas corpus petitions apply to original petitions filed in this

Court; and that those restrictions do not violate the Suspen-

sion Clause, thus the court of appeals’ opinion “construing”

the Act was erroneous. This Court should then vacate the

order transferring Martinez-Villareal’s petition to the district

court for further action, and deny his request for permission

to file a successive petition.

ARGUMENT

THE AEDPA’S RESTRICTIONS ON SUCCESSIVE

HABEAS CORPUS PETITIONS APPLY TO ALL KINDS

OF CLAIMS AND TO ALL COURTS.

The Ninth Circuit concluded that, if 28 U.S.C.

§ 2244(b)’s restrictions on second or successive habeas peti-

tions (hereafter referred to as “successive petitions”) apply to

Martinez-Villareal’s claim of incompetency for execution, it

would constitute a violation of the Suspension Clause, so it

“construed” the AEDPA to avoid the perceived constitutional

problem. 118 F.3d at 631-34. This reconstruction of the stat-

ute can be justified only if the AEDPA’s restrictions apply to

competency for execution claims, and to “original” habeas

corpus petitions brought in this Court, otherwise, Martinez-

Villareal suffers from no “predicament” which needs to be

resolved, and the judicial redrafting of the statute is patently

erroneous. The Ninth Circuit recognized that its view that the

restrictions on successive habeas corpus petitions apply to

“original” habeas petitions in this Court directly contradicts

the conclusion of the Eleventh Circuit in Jn re Medina, 109

F.3d at 1564. /d. at 631-32 and n.4; see also In re Davis, 121

F.3d 952, 956 (Sth Cir.), app. for stay and pet. for habeas

corpus denied, No. 97-5798 (1997).

A. Changes Effected By the Amendments Concerning

Successive Petitions.

What Congress did with regard to successive habeas

petitions can most clearly be understood by examining the

version of 28 U.S.C. §§ 2244 and 2255 provided in Appendix

A, which shows by strikeouts and italics the language

removed and added by the AEDPA. Subsection (a) of § 2244

continues to voice the principle that federal judges should not

entertain repetitive petitions from federal prisoners, but it is

significantly tightened in that refusal of a successive petition

is now required, even if previously unpresented or undeter-

mined grounds are being raised, unless the narrow exceptions

included in § 2255 (as amended) are satisfied. Moreover, the

discretion previously possessed to evaluate whether the “ends

of justice” would be served by consideration of a successive

petition has been removed.

Former subsection (b) of § 2244 has been completely

expunged. Before the amendment, the statute provided that a

successive petition “need not” be entertained, which permit-

ted some discretion in determining whether to consider such

petitions. That discretion is no longer available. Previously

the subsection also indicated that successive petitions should

be accepted, if they were based on “factual or other” grounds

not adjudicated in the first proceeding, so long as the judge

was satisfied that there had not been deliberate withholding of

the newly asserted ground or other (undefined) abuse of the

writ. This language, which had been reiterated as Rule 9(b) of

the Habeas Corpus Rules, also is gone.

Substituted is a completely new subsection (b), which

divides the universe of successive petitions into just two

categories. Under (b)(1), any claim that was presented in a

prior petition “shall be dismissed” — regardless of how it was

dealt with in the prior proceeding. Under (b)(2), any claim

that was not presented in the prior petition shall also be

dismissed, unless: (A) it relies on a new rule of constitutional

law made retroactively applicable by the Supreme Court, or

(B) it relies on new facts which could not have been discov-

ered previously and is such that the habeas applicant would

not have been found guilty. Conspicuously absent is

allowance for relief in a successive petition on any ground

which is related to the sentence imposed rather than actual

innocence. Moreover, the district courts are forbidden by new

subsection (b)(3) even to consider successive petitions unless

permission has been granted by the court of appeals. In short,

§ 2244 as amended is not even a ghost of its former self, but

rather, is a completely new creature.

The amended version of § 2244(b) specifically requires

that the petition that Martinez-Villareal now wishes to litigate

be treated as a successive petition. The statute permits no

inquiry into the applicant’s subjective state of mind (“deliber-

ately withheld”), while the whole amorphous concept of

“other abuse of the writ” has been replaced by clear and

simple categorization of types of successive claims (previ-

ously presented or not previously presented), all of which are

precluded, absent demonstration of one of the two narrow,

objectively ascertainable exceptions. The “ends of justice”

language in § 2244(a), which this Court continued to use as a

basis for decisions concerning successive petitions by state

prisoners even after Congress deleted it from § 2244(b) in the

1966 revision of the habeas statutes, Kuhlman v. Wilson, 477

U.S. 436, 448-52 (1986), has been completely removed; thus,

“the permissive language of § 2244(b) giv[ing] federal courts

discretion to entertain successive petitions under some cir-

cumstances” (477 U.S. at 451) no longer exists.

In short, after watching the courts struggle for three

decades with the vague contours of “ends of justice” and

“abuse of the writ,” Congress cut completely through the

jurisprudential Gordian knot, abolishing those nebulous con-

cepts and replacing them with the sharply-defined categories

and exceptions discussed above, in a manner which brooks no

reasonable question about its intent to make the first habeas

petition the “one bite at the apple” available, and to make

acceptable successive petitions extremely rare. Since Mar-

tinez-Villareal undeniably has already had one fully-litigated

habeas petition, the plain meaning of § 2244(b) as amended

requires his new petition to be treated as successive.

B. The AEDPA’s Restrictions on Successive Petitions

Apply to Competency for Execution Claims.

There seems to be no dispute that the restrictions on

successive petitions in 28 U.S.C. § 2244(b) apply to compe-

tency for execution claims. Nothing in the language of the

statute or its legislative history indicates Congressional intent

to exempt any particular category of claims from the univer-

sal language restricting successive petitions, and the three

courts that have considered the matter all agree that these

restrictions apply to competency for execution claims.

Medina, 109 F.3d at 1564-65; Davis, 121 F.3d at 954; Mar-

tinez-Villareal, 118 F.3d at 630-31.

C. The AEDPA’s Restrictions on Successive Petitions

Apply to “Original” Habeas Corpus Petitions In This

Court.

As previously noted, the circuits diverge regarding the

results of applying the restrictions to competency for execu-

tion claims. The Eleventh and Fifth Circuits saw no problem

in precluding district court habeas consideration, because of

their view that an inmate can obtain adequate federal review

by means of a certiorari petition or an unrestricted original

habeas corpus petition to this Court. Medina, 109 F.3d at

1564; Davis, 121 F.3d at 956. The Ninth Circuit, by contrast,

sees the AEDPA’s restrictions on successive habeas petitions

as applying even to original petitions to this Court, and

certiorari from the state court proceeding as inadequate,

because it is not a form of plenary collateral review. Mar-

tinez-Villareal, 118 F.3d at 631-32 and nn.3, 4. This perceived

lack of adequate federal court collateral review motivated it

to reconstruct the statute, to avoid the supposed Suspension

Clause issue. /d. at 632-34. Hence, to determine whether the

manipulation of the statute is warranted, this Court must first

decide whether its “original” writs of habeas corpus are sub-

ject to the AEDPA’s restrictions on successive petitions.

This question was touched upon, but not decided, in

Felker v. Turpin, __ U.S. __, 116 S. Ct. 2333 (1996). The

time has come to resolve it, and Petitioners contend that the

AEDPA’s restrictions do apply to such original petitions.'

This Court has agreed since the time of Chief Justice

Marshall that “power to award the writ by any of the courts of

the United States must be given by written law.” Ex parte

Bollman, 8 U.S. (4 Cranch) 75, 94 (1807), quoted approvingly

in Felker, 116 S. Ct. at 2340. The statutory authority known

to him, Section 14 of the Judiciary Act of 1789, “is the direct

ancestor of 28 U.S.C. § 2241,” the single source from which

all federal courts derive their authority to issue writs of

habeas corpus. Felker, 116 S. Ct. at 2338 and n.1. Indeed, the

first issue considered in Felker was stated to be the extent to

which the provisions of the AEDPA “apply to petitions for

habeas corpus filed as original matters in this Court pursuant

to 28 U.S.C. §§ 2241 and 2254.” Id. at 2337 (emphasis

added). The conclusion was that the AEDPA did not repeal

the Court’s “authority to entertain a petition for habeas

' Petitioners’ position below (relying upon Medina) was that the

restrictions do not apply to this Court. Reconsideration of the matter in

light of the Ninth Circuit's analysis has persuaded Petitioners that the

restrictions of the AEDPA do apply to original petitions filed with this

Court.

corpus” — “As we declined to find a repeal of § 14 of the

Judiciary Act of 1789 as applied to this Court by implication

[by the Act of 1867], we decline to find a similar repeal of

§ 2241 of Title 28 — its descendant, n.1, supra — by implica-

tion now.” /d. at 2339. Chief Justice Rehnquist has referred,

collectively, to “the statutes governing habeas corpus, 28

U.S.C. § 2241-2255.” Lonchar v. Thomas, __ U.S. ___ , 116

S. Ct. 1293, 1304 (1996) (concurring opinion). Similarly,

Lindh v. Murphy, __ U.S. __, 117 S. Ct. 2059, 2063 (1997),

refers to the AEDPA as “amend[ing] § 2244 and §§ 2253-55

of chapter 153 .. . governing all habeas corpus proceedings

in the federal courts.” (Emphasis added.) Many of the indi-

vidual sections within Chapter 153 specifically refer to both

this Court (or its individual justices) and the lower federal

courts, without drawing any distinction between them, except

as required by their relative positions. See 28 U.S.C.

§§ 2241(a) and (b), 2242, 2243, 2251, and 2254(a). Conspicu-

ously absent is any differentiation between the standards and

procedures to be employed by this Court and the lower federal

courts. Indeed, Supreme Court Rule 20.4 expressly incorpo-

rates the requirements of §§ 2241, 2242, and 2254, all of

which (apart from limited express exceptions) govern habeas

petitions in the lower courts. Thus, since the source of author-

ity for this Court to issue original writs is identical to the

source of the grant to the lower courts, it necessarily follows

that this Court is subject to the same restrictions imposed on

those courts, absent a clear Congressional intent to the con-

trary.

No such intent to exempt petitions filed in this Court is

found in the AEDPA. On the contrary, the language of the

amendments demonstrates that they were intended to apply to

all habeas proceedings, including those originating in this

Court. As noted in Felker, the “gatekeeping” provision cod-

ified as § 2244(b)(3) obviously cannot apply to this Court,

because it is specifically directed at applications “filed in the

district court.” 116 S. Ct. at 2339. “If § 2244(b)(3) does not

apply to the Supreme Court because it is expressly limited to

petitions filed in the district court, then §§ 2241(b)(1) and (2)

should apply to the Supreme Court because they are not

similarly limited.” Martinez-Villareal, 118 F.3d at 632. This is

essentially the mode of analysis applied by the Court to other

portions of this same legislation in Lindh v. Murphy: the

explicit provision for retroactive application of Chapter 154

implicitly indicated that Chapter 153 was not intended by

Congress to apply to pending cases. 117 S. Ct. at 2063. By

parity of reasoning, the express limitation on the applicability

of § 2244(b)(3) to district court proceedings implies that

§ 2244(b)(1) and (2) are not to be so limited, and therefore

apply to habeas proceedings initiated in this Court.

Felker is not to the contrary, despite the misunderstand-

ing of this point evinced by the Eleventh Circuit in Medina

(109 F.3d at 1564) and followed by the Fifth Circuit in Davis

(121 F.3d at 956). The Felker opinion carefully distinguished

between the issues of whether the AEDPA “deprived” this

Court of jurisdiction even to “entertain” original habeas peti-

tions, and whether the AEDPA imposed conditions or limita-

tions on the ability to grant relief on original petitions when

they were being “entertained.” 116 S. Ct. 2337. The point of

Felker’s discussion of Ex parte Yerger, 75 U.S. (8 Wall.) 85

(1869), was that the repeal of this Court's jurisdiction to

entertain original habeas petitions cannot be done by implica-

tion. While Congress can constitutionally revoke parts of this

Court’s appellate jurisdiction (as was permissibly done in the

1868 withdrawal of this Court’s authority to hear appeals

from the circuit courts, and in the AEDPA’s withdrawal of

certiorari jurisdiction concerning circuit court judgments on

applications to file successive petitions), it must be explicit,

and the AEDPA contains no such clear revocation of this

Court’s jurisdiction to receive “original” habeas petitions.

Thus, such jurisdiction to entertain original habeas petitions

still exists. 116 S. Ct. at 2338-39.

However, the “requirements a state prisoner must satisfy

to show he is entitled to a writ of habeas corpus from this

Court” is a matter logically distinct from whether the Court

possesses jurisdiction to hear him at all, and hence was dealt

with in a discrete portion of the Felker opinion, Part I1(B). /d.

at 2339. This is where the ambiguity appears because, after

discussing the restrictions contained in § 2244(b)(1) and (2),

this Court states that, “Whether or not we are bound by these

restrictions, they certainly inform our consideration of origi-

nal habeas corpus petitions.” /d. This isolated statement can-

not carry the weight apparently given it by the Eleventh

Circuit in Medina, which confidently asserts that, “the provi-

sions of § 2244(b), as amended, do not restrict that Court's

original habeas authority.” 109 F.3d at 1564 (citing generally

to “Felker, 116 S. Ct. at 2338-39").

This Court's discussions preceding and following the

ambiguous remark seem to indicate that the § 2244(b)(1) and

(2) restrictions on successive petitions are constitutional, and

that in appropriate cases this Court will be “bound” by them.

“[A]lthough the Act does impose new conditions on our

authority to grant relief, it does not deprive this Court of

jurisdiction to entertain original habeas petitions.” 116 S. Ct.

at 2337 (emphasis added). Part I1(B), which specifically deals

with this issue, refers to the AEDPA affecting “requirements a

state prisoner must satisfy” to obtain relief here. /d. at 2339

(emphasis added).

Title I of the Act has changed the standards govern-

ing our consideration of habeas petitions by impos-

ing new requirements for the granting of relief to

state prisoners. Our authority to grant habeas relief

to state prisoners is limited by § 2254, which speci-

fies the conditions under which such relief may be

granted to “a person in custody pursuant to the

judgment of a State court.”

Id. (emphasis added). Then, after noting that while the restric-

tion in § 2244(b)(3) applies only to petitions filed in the

district courts, there is no such limitation in § 2244(b)(1) and

(2); “These restrictions apply without any qualification to any

‘second or successive habeas corpus application under sec-

tion 2254.’ Id. (emphasis added). Later, in discussing the

Suspension Clause issue, it is noted that the Act “further

restricts the availability of relief’ beyond the pre-existing

limitations, but that “the power to award the writ by any of

the courts of the United States must be given by written law”

(quoting Bollman), so that judgments about the proper scope

of the writ are for Congress to make, and the “added restric-

tions which the Act places on second habeas petitions” are

constitutional. /d. at 2340 (emphasis added).

The reasonable conclusion from these statements seems

to be that the Court was signalling that it is “bound” by

§ 2244(b)(1) and (2). The opinion for the Court states that,

“Reviewing petitioner's claims here, they do not materially

differ from numerous other claims made by successive habeas

petitioners which we have had occasion to review on stay

applications to this Court,” so that they neither satisfied the

AEDPA nor the prior “exceptional circumstances” require-

ment of Supreme Court Rule 20.4(a). /d. at 2341. Similarly,

Justice Stevens’ concurring opinion emphasized that the orig-

inal writ was being properly denied because “petitioner's

claims do not satisfy the requirements of our pre-Act jurispru-

dence or the requirements of the Act... ,” and Justice

Souter’s concurrence says that, “even applying the traditional

criteria, we would choose to deny” Felker’s petition. /d.

Thus, the Court was unanimous that Felker's petition would

have been denied even under its pre-AEDPA standards, a conclu-

sion which obviated any need to expatiate upon the new, more

restrictive standards. In any event, the statement, “Whether or not

we are bound by these restrictions” (Felker, 116 S. Ct. at 2339), is

at most language of reservation, not language of determination.

Felker cannot be understood as holding that this Court is exempt

from the AEDPA’s restrictions on successive petitions. For all the

reasons previously presented, the Court should now affirmatively

acknowledge that it is indeed “bound” by the restrictions of

§ 2244(b)(1) and (2) in ruling upon “original” habeas corpus

petitions submitted to it, and proceed to deal with the corollary

question, the constitutionality of those restrictions under the Sus-

pension Clause.”

2 Of course, should this Court nonetheless rule that the AEDPA’s

restrictions on successive petitions do not apply to original petitions filed

with it, then the Suspension Clause issue disappears even under the Ninth

Circuit’s analysis, and Martinez-Villareal is ineligible for district court

consideration of his claim.

THE SUSPENSION CLAUSE IS NOT VIOLATED BY

THE AEDPA’S RESTRICTIONS ON SUCCESSIVE PETI-

TIONS, SO THE NINTH CIRCUIT ERRED IN RECON-

STRUCTING THE STATUTE TO AVOID THE

NONEXISTENT VIOLATION.

The premise underlying the court of appeals’ handling of

this case, though expressed only obliquely, is nonetheless

quite clear: it believes that every state convict always has a

right to have at least one federal court conduct plenary

collateral review of his constitutionally-based claims. Thus,

having determined that the AEDPA’s restrictions on succes-

sive petitions apply to original habeas proceedings in this

Court, it looked for alternative modes of plenary federal

collateral review, but it deemed a certiorari petition from the

state competency proceeding not “an adequate alternative

form of collateral relief.” Martinez-Villareal, 118 F.3d at

631-32 and n.3.9

Because the perceived foreclosure of habeas was consid-

ered likely to constitute a Suspension Clause violation, and

because the court below believed that it had “to ensure that a

petitioner's federal claims are accorded one hearing in federal

court,” the majority held that a successive competency for

execution claim should be treated as not successive, to avoid

triggering the AEDPA’s restrictions. /d. at 632-34 (discussing

In re Turner, 101 F.3d 1323 (9th Cir. 1996)). The concurring

judge did not believe Turner could be stretched to cover the

very different facts of this case (in which there had been years

of litigation, conclusively resolving dozens of other claims),

3 This led to the erroneous hyperboles that “the inapplicable

gateways provided by the AEDPA foreclose any federal review of a death

row inmate’s competency to be executed,” and, “If we are correct, then a

state prisoner's competency claim can never be heard by any federal

court.” 118 F.3d at 631, 632; emphasis added. The statements are patently

incorrect because such claims can be heard, in this Court, by certiorari.

Indeed, Martinez-Villarea! exercised that right, in No. 96-9068, cert.

denied, 117 S. Ct. 1840 (1997).

i I

but agreed that inmates’ loss of “opportunity to present all

their federal claims in federal court” by means of habeas

because of the restrictions on successive petitions, constituted

a Suspension Clause violation. /d. at 635. Thus, all three

judges below agreed that applying the restrictions on succes-

Sive petitions to competency for execution claims likely

would be unconstitutional, necessitating some remedy.

Petitioners believe this reasoning is flawed: unless there

really is a constitutional entitlement to federal collateral

review of all federal claims arising out of state criminal

proceedings, precluding consideration of Martinez-Villareal’s

competency claim presented in a successive petition deprives

him of no legal right and requires no remedy. The only source

posited by either Martinez-Villareal or the court of appeals

for such an entitlement is the Suspension Clause. As shown

below, the Suspension Clause is not violated by applying the

AEDPA here, so Martinez-Villareal’s petition should have

been held precluded, not transferred to the district court.

A. Felker Determined That The AEDPA Restrictions Do

Not Constitute A Suspension Clause Violation.

Though the Ninth Circuit obviously did not perceive it

that way, it appears that the Suspension Clause issue was

resolved in Felker. Part III of that opinion considered

“whether the Act suspends the writ of habeas corpus in

violation of Article I, § 9, clause 2 of the Constitution.” 116

S. Ct. at 2339. The Court first briefly summarized the expan-

sion of habeas corpus through statutory amendment and Court

interpretation, the result being that, “The writ of habeas

corpus known to the Framers was quite different from that

which exists today.” Jd. at 2339-40. Next, it noted the new

requirement for obtaining permission to file a successive

petition, but found this constitutionally insignificant, because

it merely transferred to the court of appeals a screening

function previously performed by the district courts under

Habeas Corpus Rule 9(b). /d. at 2340. Then, applicable to this

case:

The Act also codifies some of the pre-existing

limits on successive petitions and further restricts

the availability of relief to habeas petitioners. . . .

The new restrictions on successive petitions

constitute a modified res judicata rule, a restraint on

what is called in habeas corpus practice “abuse of

the writ.” In McCleskey v. Zant, 499 U.S. 467, 111

S. Ct. 1454, 113 L. Ed. 2d 517 (1991), we said that

“the doctrine of abuse of the writ refers to a com-

plex and evolving body of equitable principles

informed and controlled by historical usage, statu-

tory developments, and judicial decisions.” /d., at

489, 111 S. Ct. at 1467. The added restrictions

which the Act places on second habeas petitions are

well within the compass of this evolutionary pro-

cess, and we hold that they do not amount to a

“suspension” of the writ contrary to Article I, § 9.

Id. (emphasis added; some citations omitted).

This recognizes that the AEDPA places additional

restrictions on successive petitions, above and beyond the

pre-existing (judicial) limitations which it codifies, and holds

that those additional restrictions do not violate the Suspen-

sion Clause. Those additional restrictions obviously include

§ 2244(b)(1) and (2), because they were among the Act's

“new requirements for granting relief,” which had just been

considered in Part II(B). /d. at 2339. Hence, it appears that

Felker answered the Suspension Clause question. However,

should the Court feel that the issue needs examination beyond

that given to it in Felker, further discussion is provided,

demonstrating that Felker’s conclusion was correct.

B. There Has Been No Suspension Clause Violation

Because What the Clause Protects is Not Modern

Statutory Habeas Corpus.

1. What is the relevant point in time?

To determine whether the Suspension Clause has been

violated, it is necessary to know what is protected by the

——$— a

Clause. The court of appeals assumed that the Clause safe-

guards the writ of habeas corpus as it exists today, rather than

what existed in 1789, because such an assumption was men-

tioned in Felker, 116 S. Ct. at 2340. 118 F.3d at 631 n.2.

Though understandable, this was a fatal error in the court of

appeals’ analysis, because of the fundamentally different

results which follow from employing the assumption in this

case and in Felker. In Felker the assumption was made with

juridical safety because it could not affect the outcome: since

Felker held that even the expansive modern writ had not been

suspended, the timing issue was irrelevant. Here, by contrast,

the assumption is outcome-determinative: by assuming that

the privilege of habeas corpus is driven by a one-way, expan-

sive, historical ratchet, the court of appeals necessarily con-

cluded that the AEDPA’s mandate to restrict the availability

of habeas relief constituted a “suspension.” In short, utilizing

the assumption as the court of appeals did is judicial question-

begging.

This Court plainly did not intend its statement in Felker

to be the resolution of the timing issue. Not only is the

assumption plainly stated to be such, but its conditionality is

emphasized by the added phrase, “for purposes of decision

here.” Moreover, rather than just citing Swain v. Pressley, 430

U.S. 372 (1977), which also found it unnecessary to decide

whether it was the old writ or the modern, expanded, writ

which is protected by the Suspension Clause, Felker cited

Chief Justice Burger’s concurring opinion in Swain, 430 U.S.

at 385, which expressly adopted the view that, “The sweep of

the Suspension Clause must be measured by reference to the

intention of the Framers and their understanding of what the

writ of habeas corpus meant at the time the Constitution was

drafted,” instead of the writ as it has been statutorily

expanded and interpreted by this Court. The additional cita-

tion reiterates that the timing question is, at most, still open,

while simultaneously suggesting that when the question is

squarely put, it will be only the 1789 form of the writ which

will be found protected by the Clause.*

This is consistent with other indications of acceptance of

Chief Justice Burger’s view. In response to a claim that the

Suspension Clause was violated by a statute limiting avail-

ability of transcripts in federal collateral relief proceedings,

this Court said:

This argument presupposes, inter alia, that a

right to a free transcript is a necessary concomitant

of the writ which the Founders declared could not

be suspended. This is obviously not the case. The

writ of habeas corpus operated until 1944 with no

provision for free transcripts for indigents. Con-

gress, when in that year it authorized free tran-

scripts for the first time, could certainly have

limited the authorization to nonfrivolous cases

where a need had been shown. If Congress could

have thus limited the writ directly without “sus-

pending” it, it follows that it may do so indirectly.

United States v. MacCollom, 426 U.S. 317, 322-23 (1976)

(plurality opinion).

Agreeing with the view expressed by the MacCollum

plurality, that the operative date for Suspension Clause anal-

ysis is 1789, is an impressive array of other authorities. See

Schneckloth v. Bustamonte, 412 U.S. 218, 252-56 (1973)

(Powell, J., concurring); United States v. Anselmi, 207 F.2d

312, 314 (3d Cir.), cert. denied, 345 U.S. 947 (1953); Kansola

v. Civiletti, 630 F.2d 472, 474 (6th Cir. 1980), cert. denied,

450 U.S. 930 (1981); Lindh v. Murphy, 96 F.3d 856, 867-68

(7th Cir. 1996), rev'd on other grounds, 117 S. Ct. 2059

(1997); Jones v. Squier, 195 F.2d 179, 181 (9th Cir. 1952);

Paul M. Bator, Finality in Criminal Law and Federal Habeas

Corpus for State Prisoners, 76 Harv. L. Rev. 441 (1966); Rex

* When an issue has only been assumed in prior cases, the Court is

completely free to address the matter on its merits when it is squarely

presented. Brecht v. Abrahamson, S07 U.S. 619, 630-31 (1993), citing

Edelman v. Jordan, 415 U.S. 651, 670-71 (1974).

A. Collings, Jr., Habeas Corpus for Convicts — Constitutional

Right or Legislative Grace?, 40 Car. L. Rev. 335 (1952)

(hereafter “Collings”); Henry J. Friendly, /s Innocence Irrele-

vant? Collateral Attack on Criminal Judgments, 38 U. Cu. L.

Rev. 142, 170 (1970) (“It can scarcely be doubted that the

writ protected by the suspension clause is the writ as known

to the framers, not as Congress may have chosen to expand it

or, more pertinently, as the Supreme Court has interpreted

what Congress did.”). This means that the parameters of the

constitutionally-protected writ are quite narrow, and the arena

in which Congress is free to expand or contract availability of

the statutory writ is very broad — a breadth clearly capable of

encompassing the changes effected by the AEDPA.

2. What is actually protected by the Suspension

Clause?

The Suspension Clause provides that, “The privilege of

the writ of habeas corpus shall not be suspended, unless when

in cases of rebellion or invasion the public safety may require

it.” Since no definition is provided for the critical terms, it

must be assumed that the Framers were utilizing terms which

already possessed a commonly recognized fund of meaning.

As Chief Justice Taft explained:

The language of the Constitution cannot be

interpreted safely except by reference to the com-

mon law and to British institutions as they were

when the instrument was framed and adopted. The

statesmen and lawyers of the Convention who sub-

mitted it to the ratification of the Convention of the

Thirteen States, were born and brought up in the

atmosphere of the common law, and thought and

spoke in its vocabulary. . . . [W]hen they came to

put their conclusions into the form of fundamental

law in a compact draft, they expressed them in

terms of the common law, confident that they could

be shortly and easily understood.

Ex parte Grossman, 267 U.S. 87, 108-09 (1925). Chief Justice

Marshall examined the English common law to determine the

meaning of habeas corpus as used in the Suspension Clause

and in Section 14 of the concurrently passed Judiciary Act of

1789, 1 Stat. 82. Ex parte Bollman, 4 Cranch at 94-99. “In the

early decades of our new federal system, English common law

defined the substantive scope of the writ.” McCleskey.v. Zant,

499 U.S. 467, 478 (1991) (citing Ex parte Watkins, 3 Pet. 193,

201-03, 7 L. Ed. 650 (1830)). Therefore, to understand what

the “habeas corpus” is that is being protected by the Clause, it

is critical to understand that common-law background.

(a) English background of the writ and its suspen-

sion. There were, in fact, a whole group of writs, all referred

to as “habeas corpus,” which had been carefully parsed by

Blackstone. Bollman, 4 Cranch at 97-98. Over time, the writ

cum causa (or ad subjiciendum) emerged as the chief instru-

ment by which a person had his body and cause removed from

a lower to a higher court, for the purpose of inquiry into the

cause of his restraint, and it was this which was celebrated by

Blackstone as the “Great Writ.” Dallin H. Oaks, Habeas

Corpus in the States — 1776-1865, 32 U. Cm. L. Rev. 243,

243-44 and nn. 3, 4 (1965) (hereafter “States”). This was the

writ contemplated by both the Suspension Clause and the

Judiciary Act of 1789. Bollman, 4 Cranch at 94-95; Carbo v.

United States, 364 U.S. 611, 614-15 (1961).

In England the judicially developed writ had been

defined and regulated by the “famous” Habeas Corpus Act of

1679, 31 Car. Il, c.2. Collings at 337. Particularly significant

is the fact that, “Persons ‘convict or in execution’ were

excluded altogether from the benefits of the Act [of 1679].”

Id. at 337 n.9. “Plainly, the benefits of this famous English act

were intended primarily for individuals detained for a crime

but held without a warrant of commitment, or for individuals

held without bail upon a warrant charging a minor offense.”

States at 252. In summary:

{I}n 1789 in England a person in custody for a

crime had the immediate right either to be charged

or released. If the crime charged was a misde-

meanor there was a right to bail. Once properly

charged with treason or a felony the only right was

to a trial during the next session, which the Crown

might delay. Once c »'victed of a crime there was no

privilege of the writ.

Collings at 338 (emphasis added). Collings surveys the

English experience with “suspension” of the writ, which, of

course, only related to pretrial curtailments of liberty,

because that was the extent of the common-law writ (id. at

339-40), and summarizes:

In other words, suspension in England was a

legislative enactment which caused the Habeas

Corpus Act to cease to operate, allowing confine-

ment without bail, indictment, or other judicial pro-

cess. The end result was to deny the right to trial by

jury.

Id. at 340 (emphasis added).

b. American pre-Constitutional experience with the

writ and its suspension. The common law writ was in opera-

tion in all 13 colonies by 1776, and the 1679 Habeas Corpus

Act had been legislatively adopted or judicially applied in six

of them. Wiuiam F. Duxer, A ConstrruTionat History oF

Haseas Corpus 115 (1980). Numerous states adopted the 1679

Act into their own law both before and after the Constitu-

tional Convention, following it so closely that, “Chancellor

Kent logically concluded that the Act of 1679 was ‘the basis

for all the American statutes on the subject’.” Collings at

338-39; accord, Franx H. Hurp, A Treatise ON tHe RicHT or

PersonaL Liperty AND ON THE Wait or Naseas Corpus 128

(1876). “The legislation in the twelve original states that

followed the English act was uniform in providing that the

benefits of the act should not extend to persons properly

charged with felony or treason or to ‘persons convict’ or in

execution under civil or criminal process.” States at 254. “By

both common and statute law, the general rule was that the

writ was not available to one confined for a crime by a court

of competent jurisdiction.” Duker at 225. “Suspension stat-

utes were aimed at suspects, never at convicts.” Collings at

340-41.

c. Evidence from the Convention and ratification

process. Records of the Constitutional Convention and the

debates concerning adoption reflect no belief by the Framers

that they were creating a substantive right to habeas corpus in

the Suspension Clause, but rather that Congress was being

restrained from suspending the existing common-law writ, as

crystallized in the Habeas Corpus Act of 1679.

Charles Pinkney drafted a provision which would have

both positively guaranteed the privilege of habeas corpus and

allowed for suspension only upon “the most urgent and press-

ing occasions,” for a period limited to a specified number of

months, language closely resembling provisions in the Massa-

chusetts and New Hampshire Constitutions. Collings at 341

and n.34. When the Committee on Detail presented its draft,

the Pinkney habeas suggestion was absent, so he renewed the

motion. /d. Only limited debate is recorded. Mr. Rutledge

argued that habeas should be declared “inviolable,” reasoning

that he “did not conceive that a suspension could ever be

necessary at the same time through all the States.” 2 Max

FARRAND, Recorps OF THE Feperat CONVENTION OF 1787 at 438

(1911). Governor Morris responded with a motion that may

have been intended to satisfy Rutledge’s qualm, by permitting

a geographically limited, rather than necessarily nation-wide,

suspension: “The privilege of the writ of habeas corpus shall

not be suspended, unless where in cases of rebellion or

invasion the public safety may require it.” /d. Mr. Wilson

responded to the Morris motion that he doubted whether a

suspension could ever be necessary, “as the discretion now

exists with judges, in most important cases to keep in gaol or

admit to bail.” The Morris motion nonetheless passed. /d.

However, when the final draft was reported out by the Com-

mittee on Style, “where” had become “when,” and it was

passed by the Convention in that form. /d. at 596, 656. Thus,

the final (and current) form of the Clause “assumes the

existence of the privilege” (Hurd at 106), rather than purport-

ing to create it.

That the Clause seeks only to protect a privilege already

in being is further indicated by its treatment during the

ratification debates. Luther Martin explained his negative

vote to the Maryland legislature in terms which presuppose

the existence of the privilege; his concern was that authoriza-

tion given to the central government to suspend the writ could

be used as an instrument to oppress those in states which

might oppose its policies. 3 Farrand at 213. However, his

remarks all deal with habeas as a remedy against politically-

motivated seizure and detention, and do not seem to conceive

at all of habeas as being available to an ordinary convicted

criminal. Moreover, his speech contains repeated references

to suspension of the “habeas corpus act” (id.), even though

Maryland possessed neither a state constitutional provision

nor a state habeas statute until many years later. States at 249,

251-52. Hence, it is likely that he was referring to the com-

mon law writ as formalized by the Habeas Corpus Act of

1679, which, of course, did not apply to convicts.

To the same effect are the Federalist Papers, “to which,

as Thomas Jefferson put it, ‘appeal is habitually made by all,

and rarely declined or denied by any’ as to the ‘genuine

meaning’ of the Constitution.” The Federalist Papers at vii

(C. Rossiter ed. 1961). Answering complaints that the Consti-

tution does not expressly protect the right to jury trial in civil

cases, Hamilton argues (No. 83) that it is far more important

to provide protections in criminal cases, and that the Consti-

tution does so:

Arbitrary impeachments, arbitrary methods of pros-

ecuting pretended offenses, and arbitrary punish-

ments upon arbitrary convictions have ever

appeared to me to be the great engines of judicial

despotism; and these have all relation to criminal

proceedings. The trial by jury in criminal cases,

aided by the habeas corpus act, seems therefore to

be alone concerned in the question. And both of

these are provided for in the most ample manner in

the plan of the convention.

Id. at 499 (emphasis added). Since the Constitution contains

no positive grant of habeas corpus, Hamilton could have only

meant that it amply provides for the protection of the pre-

existing right, the well-known Habeas Corpus Act of 1679,

which had been applied in New York in colonial cases. Duker

at 115.

This conclusion is borne out by the second reference to

habeas corpus, found in No. 84, where Hamilton is respond-

ing to the criticism that the Constitution should have included

a bill of rights. He first enumerates the many protections

which are included in the proposed Constitution, including

limits on penalties to be imposed by impeachment, protection

of jury trial, prohibition of bills of attainder or ex post facto

laws, and the Suspension Clause. Federalist at 510-11. He

then argues:

It may well be a question whether these are not,

upon the whole, of equal importance with any

which are to be found in the constitution of this

State. The establishment of the writ of habeas

corpus, the prohibition of ex post facto laws, and of

titles of nobility, to which we have no corresponding

provision in our [New York] Constitution, are per-

haps greater securities to liberty and republicanism

than any it contains. The creation of crimes after the

commission of the fact, or, in other words, the

subjecting of men to punishment for things which,

when they were done, were breaches of no law, and

the practice of arbitrary imprisonments, have been,

in all ages, the favorite and most formidable instru-

ments of tyranny. The observations of the judicious

Blackstone, in reference to the latter, are well wor-

thy of recital: “To bereave a man of life [says he] or

by violence to confiscate his estate, without accusa-

tion or trial, would be so gross and notorious an act

of despotism as must at once convey the alarm of

tyranny throughout the whole nation; but confine-

ment of the person, by secretly hurrying him to jail,

where his sufferings are unknown or forgotten, is a

less public, a less striking, and therefore a more

dangerous engine of arbitrary government.” And as

a remedy for this fatal evil he is everywhere pecu-

liarly emphatical in his encomiums on the habeas

corpus act, which in one place he calls “the suLwark

of the British Constitution.”

Id. at 511-12 (various emphases all original). Once again, we

find: emphasis on habeas corpus as a remedy against sum-

mary imprisonments by arbitrary government (not a device

for the relief of common criminals), and reliance on the

common law tradition (embodied in “judicious Blackstone,”

together with the act which is the “Butwark of the British

Constitution”) to define what is being “established” in the

Suspension Clause.

Although Thomas Jefferson and four of the state ratifying

conventions urged adoption of a bill of rights which estab-

lished the habeas privilege in positive terms, no such affirma-

tive right to habeas was proposed for inclusion in the Bill of

Rights by the First Congress. Collings at 342-44. Instead,

authority to issue the writ was granted to the federal courts in

the Judiciary Act of 1789.

[N]othing in the historical background provides any

indication that a prisoner convicted according to the

course of the common law was ever entitled to the

writ. Furthermore, nothing in that history suggests

that it was ever thought to be suspension of the writ

to deprive convicts of its use. It seems altogether

unlikely that the First Congress viewed the habeas

corpus clause as establishing an affirmative right to

the privilege of the writ. If they had so viewed the

clause, why did they think it necessary in the Judi-

ciary Act of 1789 to affirmatively give the federal

courts jurisdiction to issue the writ? One is driven

to the conclusion that under our constitution, at

least as it was understood in 1789, there was no

right on the part of convicted prisoners to the privi-

lege of habeas corpus. Such a right, if it was to

exist at all, would have to come from Congress.

Id. at 345 (emphasis added).

d. Early judicial considerations of the Clause. The

first occasion for construing the Suspension Clause arose in

Ex parte Bollman. As we have seen, Chief Justice Marshall

invoked Blackstone and the English common law in interpret-

ing both the Clause and the Judiciary Act, and that was the

Court’s practice for many years. “This legislation [of 1679]

and the decisions of the English courts interpreting it have

been accepted by this Court as authoritative guides in defin-

ing the principles which control the use of the writ in the

federal courts.” McNally v. Hill, 293 U.S. 131, 136 (1934)

(citing cases). His acceptance of habeas as peculiarly a pre-

trial remedy was clearly indicated in Bollman, where he

remarked that the question brought forward by a habeas

petition is always separate from what is involved in “the

cause itself”: “The question whether the individual shall be

imprisoned is always distinct from the question whether he

shall be convicted or acquitted of the charge on which he is to

be tried . ..” 4 Cranch at 101 (emphasis added). That the writ

available through the federal courts did not extend to persons

already convicted of crime by a court of competent jurisdic-

tion was expressly stated in Ex parte Watkins, 3 Pet. at 202-03

(specifically following the Habeas Corpus Act of 1679). It is

equally plain that habeas corpus did not afford any protection

to persons in state custody; Section 14 of the Judiciary Act

was limited to prisoners in custody “under or by colour of the

authority of the United States.” That the Judiciary Act's

preclusion of state prisoner access to habeas relief deprived

the federal courts of jurisdiction was acknowledged by Ex

parte Dorr, 44 U.S. (3 How.) 103, 105 (1845). Other than

some narrow situations (also established by statute), no right

of habeas for state prisoners existed until passage of the Act

of Feb. 5, 1867, ch. 28, 14 Stat. 385. Felker v. Turpin, 116 S.

Ct. at 2338.

The 1789 Judiciary Act was created by a Congress that

included many of the drafters of the Constitution, and it is

inconceivable that that group would have passed anything

which could have been perceived as trenching upon so dear a

right as habeas corpus, particularly in light of the essentially

simultaneous calls for inclusion of a positive guarantee of

habeas corpus in the federal Bill of Rights. Chief Justice

Marshall himself remarked:

[T]his act was passed by the first congress of the

United States, sitting under the constitution which

had declared “that the privilege of the writ of

habeas corpus should not be suspended, unless

when, in cases of rebellion or invasion, the public

safety might require it.” Acting under the immedi-

ate influence of this injunction, they must have felt,

with peculiar force, the obligation of providing effi-

cient means by which this great constitutional privi-

lege should receive life and activity; for if the

means be not in existence, the privilege itself would

be lost, although no law for its suppression should

be enacted. Under the impression of this obligation,

they give to all the courts the power of awarding

writs of habeas corpus.

Bollman, 4 Cranch at 95. The necessary conclusion is that

excluding persons under criminal conviction from habeas

protection (and convicted state prisoners doubly so) was not a

violation of the Clause, as understood by its own drafters.

That conclusion ought to be determinative for this Court as

well.

[Ejarly congressional enactments “provid[e] ‘con-

temporaneous and weighty evidence’ of the Consti-

tution’s meaning.” Indeed, such “contemporaneous

legislative exposition of the Constitution... ,

acquiesced in for a long term of years, fixes the

construction to be given its provisions.”

Printz v. United States, 117 S. Ct. 2365, 2370 (1997) (cita-

tions omitted).

e. Lessons from the Civil War and Reconstruction.

Habeas corpus and the Suspension Clause received great

attention during the Civil War, because President Lincoln

actually did suspend the writ. See generally Marx E. Neety,

Jr., THe ABRAHAM LincoLn Encyciopepia, “Habeas Corpus,”

132-35 (1982).

Most significant for present purposes is the fact that,

although there was heated debate about whether the Constitu-

tion lodged the authority to suspend the writ in the Executive

or only in the Congress, all parties to the controversy contin-

ued to look to English common law to determine the extent of

the writ which was being suspended, and hence to treat

habeas as strict!vy a remedy for detention without trial, rather

than a means for quasi-appellate review of ordinary criminal

convictions. For example, Chief Justice Taney, sitting as a

circuit justice, directed that a southern sympathizer seized by

military authorities should be released, on the grounds that

Lincoln’s executive order suspending habeas corpus was inef-

fective because only Congress could suspend the writ. Jn re

Merryman, 17 Fed. Cas. 144 (1861), reprinted in Epwarp

McPuerson, THe Pourmcat History or THE Unrrep STATEs OF

America Durinc THE Great Repevvion 155-58 (1864). Taney’s

opinion, although applying the Suspension Clause and the

Judiciary Act of 1789, continues to rely on the English

Habeas Corpus Act of 1679 and English commentators

(Blackstone and Hallam) to define the writ, and repeatedly

refers to it as a means of obtaining pretrial release: under

English practice, “if no specific offence was charged against

him in the warrant of commitment, he was entitled to be

forthwith discharged; and if an offence was charged which

was bailable in its character the court was bound to set him at

liberty on bail” (id. at 156); freemen detained in prison on

criminal charges could demand habeas corpus ad subjicien-

dum, and “according to the nature of the charge,” the court

would remand him, admit him to bail, or discharge him (id. at

157); Parliament could, by suspending the writ, authorize the

Crown to imprison “suspected persons.” /d.

Merryman was answered by a formal opinion from Lin-

coln’s Attorney General, Edward Bates. /d. at 158-61. Much

of the opinion is devoted to defending the President’s right to

suspend the writ, but when he discusses the nature of habeas

corpus, Bates relies upon the same sources as Taney — English

common law, especially as summarized by Blackstone. /d. at

160-61. Indeed, he considers that the federal courts have,

under the Judiciary Act of 1789, “equivalent powers” to those

exercised by the English courts. Jd. at 160. Notable is his

understanding of the Suspension Clause as a guard interposed

against a replication of the English Government’s assumption

of the power “to imprison whom it would, and hold them, for

an indefinite term, beyond the reach of judicial examination”

— an understanding which obviously does not contemplate the

Suspension Clause as insuring post-trial review of ordinary

criminal convictions.5 And, most relevant to the current con-

troversy, Bates states:

[T}he Constitution is older than the judiciary act,

and yet it speaks of the privilege of the writ of

habeas corpus as a thing in existence; it is in

general terms, and does not speak with particular

reference to powers which might or might not be

granted by a future act of Congress. Besides, / take

it for certain that, in the common course of legisla-

tion, Congress has power, at any time, to repeal the

judiciary act of 1789 and the act of 1833 (which

grants to the courts and to the judges the power to

issue the writs) without waiting for a rebellion or

invasion, and a consequent public necessity, to jus-

tify, under the Constitution, the suspension of the

privilege of the writ of habeas corpus.

Id. at 161 (emphasis added). Thus, between Bollman and

Bates (and Lincoln), this Court and the highest Executive

legal authorities agreed, throughout the early history of the

5 Lincoln, himself an accomplished attorney, likewise did not regard

the Suspension Clause as guaranteeing the use of habeas corpus for review

of ordinary criminal convictions. In a message to Congress, dated July 4,

1861, he described actions taken to deal with the crisis; among those, “ to

authorize the Commanding General . . . to suspend the privilege of the writ

of habeas corpus; or, in other words, to arrest, and detain, without resort to

the ordinary processes and forms of law, such individuals as he might

deem dangerous to the public safety.” 4 Cottecrep Works or ABRAHAM

Lincoin 429 (R. Basler ed. 1953) (emphasis added). His 1863 response to

resolutions protesting the military arrest and detention of Clement

Vallandigham states: “Habeas Corpus, does not discharge men who are

proved to be guilty of defined crime, and its suspension is allowed by the

constitution on purpose that, men may be arrested and held, who cannot be

proved to be guilty of defined crime . . .” Id., Vol. 6 at 264 (emphasis

added).

republic, that habeas was not intended for relief of criminals

after conviction, that power to issue the writ originates in

statute, and that that statutory authority can permissibly be

limited or eliminated.

That what Congress bestows out of legislative grace with

regard to habeas corpus it may also limit, regulate, or take

away was dramatically illustrated in the McCardle affair. In

the Act of February 5, 1867 (14 Stat. 385), Congress had

extended the habeas corpus jurisdiction of the federal courts

to “all cases where any person may be restrained of his or her

liberty in violation of the Constitution, or of any treaty or law

of the United States,” and authorized appeals in such cases to

the circuit courts and this Court. McCardle, the editor of a

Mississippi newspaper, was taken into custody to be tried by a

military commission, on the grounds that he had published

“incendiary and libellous” articles, so he pursued habeas

relief, including an appeal to this Court. Ex parte McCardle,

74 U.S. (7 Wall.) 506, 508 (1868). After denying a motion to

dismiss the appeal, this Court heard argument on the merits

for four days in early March of 1868, and took the matter

under advisement, but before a decision could be reached,

Congress passed a new statute (15 Stat. 44), eliminating this

Court’s authority to hear appeals in habeas cases. /d.° Despite

fervent argument from McCardle’s counsel, asserting that

acceptance of such elimination of jurisdiction would imply

power in Congress to deprive the Court of all authority, so

that the Constitutionally-endowed “judicial power of the

United States” would cease to exist, this Court agreed that the

Act of 1868 had effectually removed its appellate jurisdiction,

and dismissed the case. Jd. at 509-10, 512-15.) That holding

6 The specific design of this repeal, “as was avowed by Mr. Schenck,

chairman of the House committee on ways and means, [was to] prevent{ }

this court from passing on the validity of reconstruction legislation.” Myers

v. United States, 272 U.S. 52, 166 (1926).

was reaffirmed in Ex part Yerger, 75 U.S. (8 Wall.) 85

(1868).

McCardle and Yerger show that the authority of the

federal courts to issue habeas corpus writs is fundamentally

statutory in nature. It is constitutionally permissible for Con-

gress to so limit that jurisdiction as to deprive some or all

federal courts of habeas jurisdiction, and such elimination of

habeas jurisdiction is effective, even when what might be

considered “equitable” considerations (such as the arguably

“bad” motive of Congress, and McCardle’s reasonable expec-

tation of receiving an adjudication of a fully-briefed, and

under-submission case) seem to weigh in favor of the exis-

tence of jurisdiction. If Congress could eliminate federal

ability to hear McCardle’s appeal — and this Court held that it

could — it is difficult to discern why Congress cannot also

eliminate district court ability to hear Martinez-Villareal’s

competency claim, especially when it is presented in a second

petition.

f. Modern statutes and cases. It is beyond the scope of

this brief to thoroughly analyze habeas jurisprudence subse-

quent to the Reconstruction era, so only a few highlights will

be noted. There unquestionably was a trend in this Court's

opinions toward expanding availability of the writ, though

that tendency recently has been reversed in some significant

respects. See, e.g., McCleskey v. Zant, 499 U.S. at 478-96

(summarizing judicial expansion but imposing tightened

“abuse of the writ” standard). On the other hand, aside from

restoring this Court’s appellate authority in habeas cases in

1885 (23 Stat. 437), Congress has generally tended to restrict

the exercise of habeas, and such statutes have never been

treated as violative of the Suspension Clause. See, e.g.,

7 Although the Suspension Clause was not mentioned in McCardle,

it was discussed at length in Yerger, which the Court described as

undertaking a complete reconsideration of “the grounds upon which its

jurisdiction has been heretofore maintained.” 8 Wall. at 95. Thus, at least

by implication, Yerger indicates that Congressional revocation of some

aspect of habeas jurisdiction it had previously granted does not violate the

Clause.

Whitney v. Dick, 202 U.S. 132 (1906) (newly-created courts

of appeals not granted authority to issue original writs), and

Ahrens v. Clark, 335 U.S. 188 (1948) (limiting territorially

district court authority to issue the writ).

Seemingly there is no constitutional objection in

failing to make provision for habeas corpus, or even

in abrogating it altogether as to particular persons

or classes of persons. . . . Surely then when Con-

gress increases the availability of the writ, only to

find abuse, it can take corrective measures.

Collings at 359-61 (citing cases). That conclusion is sup-

ported by decisions subsequent to publication of the Collings

article. For example, this Court vowed to enforce “the 1966

amendments embodied in § 2254(d) [that] were intended by

Congress as limitations on the exercise of that [habeas] juris-

diction.” Sumner v. Mata, 449 U.S. 539, 547 n.2 (1981). Most

recently, of course, in Felker, this Court upheld the limits on

successive petitions in the AEDPA against an explicit Suspen-

sion Clause challenge.

That this Court construed the availability of habeas relief

expansively in the past clearly does not mean that Congres-

sional enactment of limiting legislation amounts to a Suspen-

sion Clause violation. Even the most pro-expansion justices,

whether in the majority or the minority, consistently acknow!l-

edged that ultimately it lies with Congress to define habeas

corpus jurisdiction, thereby implicitly endorsing the thesis

argued in this brief. “Jurisdiction over applications for federal

habeas corpus is controlled by statute.” Brown v. Allen, 344

U.S. 443, 460 (1953). The most detailed rationalization for

judicial expansion of the writ, Justice Brennan's opinion in

Fay v. Noia, 372 U.S. 391 (1963), still speaks of: “the federal

habeas corpus jurisdiction, 28 U.S.C. § 2241 et seq.” id. at

394; “the power granted the federal courts under the federal

habeas statute” (id. at 399); “the first Judiciary Act was

passed conferring habeas corpus jurisdiction upon the federal

judiciary” (id. at 405); “power of the federal courts under 28

U.S.C. § 2243” (id. at 430). Similarly, again writing for the

Court, he stated that, “With regard to both [federal and state

prisoners] Congress has determined that the full protection of

their constitutional rights requires the availability of a mecha-

nism for collateral attack.” Kaufman v. United States, 394

U.S. 217, 228 (1969) (emphasis added).

The tide turned against expansive interpretation of the

availability of the writ in Stone v. Powell, 428 U.S. 465

(1976), which overruled Kaufman and placed fully and fairly

litigated Fourth Amendment claims outside federal habeas

corpus consideration. Justice Brennan argued in dissent that

the Court’s action impermissibly “rewr[o}te jurisdictional

statutes enacted by Congress.” (/d. at 506.) Particularly note-

worthy is his approving quotation of language from Justice

Frankfurter’s opinion in Brown v. Allen, including the follow-

ing:

Congress could have left the enforcement of federal

constitutional rights governing the administration of

criminal justice in the States exclusively to the

State courts. . . . It is not for us to determine

whether this power should have been vested in the

federal courts. . . . [TJhe wisdom of such a mod-

ification in the law is for Congress to consid-

er... lt is for this Court to give fair effect to the

habeas corpus jurisdiction as enacted by Con-

gress. . . . Congress has the power to distribute

among the courts of the States and of the United

States jurisdiction to determine federal claims. .. .

It is for the Congress to designate the member in the”

hierarchy of the federal judiciary to express the

higher law.

Id. at 526-28 (all emphasis added by Brennan). Justice Bren-

nan’s own statements are in the same vein: “[{T]here is no

constitutional warrant in this Court to override a congres-

sional determination respecting federal-court review of deci-

sions of state judges determining constitutional claims of

state prisoners.” /d. at 529. “[I}t is a matter for Congress, not

this Court, to prescribe what federal courts are to review state

prisoner’s claims of constitutional error committed by state

courts. . . . [T]he Court usurps the authority — vested by the

Constitution in Congress — to reassign federal judicial respon-

sibility for reviewing state prisoners’ claims . . . ” /d. at 535.

It therefore is clear that the greatest champions of judi-

cial habeas expansion have accepted the power of Congress to

thwart such expansion by enactment of restrictive legislation.

It is of special interest to this case, in which Petitioners argue

that Congress can preclude Martinez- Villareal from raising a

purely sentence-related claim, that dissents by Justices Bren-

nan and Marshall accept the idea that whether such claims can

be presented in habeas corpus is a matter for Congress to

decide. See Teague v. Lane, 489 U.S. 288, 339 (1989) (“Con-

gress has not seen fit to withdraw” the benefits of allowing

the federal courts to decide novel habeas claims not substan-

tially related to guilt or innocence “by amending the statute

that provides for them.”); Duckworth v. Eagan, 492 U.S. 195,

223-24 (1989) (argument against Justice O'Connor's view

“that federal habeas review should extend only to guilt-

related claims” based on fact that “Congress believed that

defendants have rights, often unrelated to guilt or innocence,

that would be worthy of collateral protection.”). They would,

therefore, have been required on principle to reject the action

of the court of appeals in this case, which was nothing less

than an arrogation to itself of authority to insist that a non-

guilt claim be heard in habeas, and to determine which federal

court should hear it (the lower federal courts by habeas, rather

than this Court by certiorari), all contrary to the clearly

expressed will of Congress.

g- Conclusions. It does not violate the Suspension Clause

to apply the AEDPA to foreclose a successive petition by

Martinez-Villareal. The Clause is only violated when the writ

is restricted to a narrower compass than it enjoyed when the

held under state (as opposed to federal) authority. The restric-

tions effected by § 2244(b)(1) and (2) do not abrogate the

privilege of habeas corpus, but apply some limits on its

availability in successive pero which this Aes

consistently agreed ought to restricted more

petitions. See, ¢.g., Lonchar v. Thomas. In the debates con-

cerning the AEDPA, members of both houses repeatedly

voiced understanding of the distinction between the modern,

statutorily-created habeas writ and the “Great Writ” which is

protected by the Suspension Clause.* Thus, Congress’ intent

to do only what was constitutionally permissible for it to do —

modify the statutory writ of habeas corpus it had created in

1867, while leaving the Constitutionally-protected “Great

Writ” untouched — is certain.

There having been no petitions available at all for per-

sons like Martinez-Villareal in 1789, the AEDPA’s partial

return to a jurisprudential state of affairs more closely resem-

bling that which prevailed, at the time of the Framers, cannot

reasonably be deemed a “suspension” of the writ. Duxer at

155.9% “[I}t is conventionally assumed that perpetuation of

federal district court habeas corpus jurisdiction is not consti-

tutionally required, on the theory that Congress is free to give

what items of federal jurisdiction it chooses to courts which,

unlike the Supreme Court, exist only by congressional suf-

ferance.” Louis H. Pollak, Proposals to Curtail Federal

Habeas Corpus For State Prisoners, 66 Yare L.J. 50, 63

(1966).

It therefore appears that the Ninth Circuit was still labor-

ing under the erroneous “revisionist view of the historic

function that [habeas corpus] writ was meant to perform”

(Schneckloth v. Bustamonte, 412 U.S. at 252), which Justice

Powell debunked more than 25 years ago. Because it is plain

that the AEDPA’s restrictions on successive petitions do not

violate the Suspension Clause, the court of appeals’ decision

collapses — no violation means no grounds for redrafting the

® 141 Cong. Rec. H1402, H1408, H1410 (daily ed. Feb. 8, 1995);

$7836, $7841 (daily ed. June 7, 1995); $3447 (daily ed. April 17, 1996).

Indeed, one congressman quoted the Powell Commission Report's

statement that the Constitution “does not provide for federal habeas corpus

review of state court decisions.” 141 Cong. Rec. H1415 (daily ed. Feb. 8,

1995).

® Professor Duker’s thesis (126-56) is that the Suspension Clause

was intended only to prevent Congress from suspending state habeas

remedies. Without referring to Duker, such a concept was described as a

“cogent argument” in Josertine R. Poruto, Prisoner COLLATERAL

Artacks § 1:4 at 8 (1991).

statute and no basis for either transferring Martinez- Vil-

lareal’s successive petition to the district court or permitting

it to be filed.

C. Martinez-Villareal Cannot Be Exempted From The

Operation of the Act.

Though elaborately dressed in language about stays

which must be issued to prevent issues becoming moot and

exhaustion principles (118 F.3d at 630, 632-34), the crux of

the court of appeals’ reason for its decision in this case is that

it had to devise a mechanism “to ensure that a petitioner's

federal claims are accorded one hearing in federal court.” /d.

at 633. Martinez-Villareal certainly did present a “federal

claim” in his certiorari petition to this Court, after the state

courts had determined him to be competent for execution, but

the court of appeals deemed that process insufficient. /d. at

631 n.3. What the court of appeals really said is that it is free

to disregard the plain meaning of the Act, to guarantee that

Martinez- Villareal present his competency claim to a district

court. That is plainly wrong. Despite relying upon other parts

of that decision, the court of appeals disregarded the central

point of Lonchar v. Thomas, that legal principles governing

habeas corpus today are primarily embodied in statutes, so

that the “balancing of objectives (sometimes controver-

sial) . . . is normally for Congress to make,” and the courts are

entitled to make such determinations only “when Congress

has not resolved the question.” 116 S. Ct. at 1298.

[T)he fact that the writ has been called an “equita-

ble remedy” does not authorize a court to ignore

this body of statutes, rules, and precedents. “There

is no such thing in the Law, as Writs of Grace and

Favour issuing from the Judges.” Rather, “courts of

equity must be governed by rules and precedents no

less than the courts of law.” As Selden pointed out

sO many years ago, the alternative is to use each

equity chancellor’s conscience as a measure of

equity, which alternative would be as arbitrary and

uncertain as measuring distance by the length of

each chancellor’s foot.

Id. (citations omitted). Since Congress, through the restric-

tions promulgated in § 2244(b)(1) and (2), has “resolved the

question” of which successive petitions may be heard, the

court of appee!s was not free to fashion an exemption from

those restrictions to fit what it perceived to be the balance of

equities presented by the supposedly “unique nature of a

competency claim” such as Martinez-Villareal’s. See 118 F.3d

at 634.

In fact, Martinez-Villareal’s situation is not at all unique.

He is just like every other convict who has found himself

outside the scope of available relief, and had his expectations

of consideration of his claims dashed, when some line has

been drawn. Who could urge more strongly that “fairness”

entitled him to a decision on his claims than Mr. McCardle,

whose case had been briefed, argued, and taken under submis-

sion by this Court? But when Congress changed the rules, this

Court accepted that, regardless of how well-founded his

expectations of relief might have been. McCardle was out of

court. Martinez-Villareal’s situation is not distinguishable

from those of multitudes of petitioners (including many under

sentences of death) who have found themselves on the wrong

side of new restrictions on habeas relief: Warren McCleskey’s

expectations of relief ran aground when this Court adopted

the rule that the cause and prejudice standard would be

applied to questions of “abuse of the writ.” The expectations

of Frank Teague and Horace Butler went a glimmering when

the Court determined that “new rules” of criminal procedure

could not normally be adopted in habeas proceedings, and this

Court subsequently stated that, “Nor does such a [habeas]

petitioner ordinarily have any claim of reliance on past judi-

cial precedent as a basis for his actions that corresponds to the

State’s interest .. . ” Lockhart v. Fretwell, 506 U.S. 364, 373

(1993).

The situation is no different when the change occurs by

statute. A murderer named Randy Greenawalt was executed

despite his claim (remarkably similar to Martinez-Villareal’s)

that the AEDPA’s preclusion of his successive petition

(involving a sentence-related claim which was not exhausted

until after enactment of the statute) created an “unprecedented

situation” amounting to a violation of the Suspension Clause.

Greenawalt v. Stewart, 105 F.3d 1268, 1277 (9th Cir.), cert.

denied, 117 S. Ct. 794 (1997). Despite the allegedly “special”

nature of a claim of incompetency to be executed, the Act was

applied to preclude such claims in successive petitions

(regardless of the rationale for not presenting them previ-

ously) in both Medina, 109 F.3d at 1561-65, and Davis, 121

F.3d at 955-56.

Although not mentioning it by name, the court of

appeals’ decision here resonates with echoes of Fay v. Noia.

Fay asserted that the function of habeas corpus is, without

limitation of any kind, “to provide a prompt and efficacious

remedy for whatever society deems to be intolerable

restraints.” 372 U.S. at 401-02. It therefore insisted that,

“conventional notions of finality in criminal litigation cannot

be permitted to defeat the manifest federal policy that federal

constitutional rights of personal liberty shall not be denied

without the fullest opportunity for plenary federal judicial

review.” 372 U.S. at 424. This view of habeas corpus as

affording guaranteed access to the federal district courts for

review of state criminal convictions purported to stand on two

historical pillars: the breadth of the common law writ, as

adopted into American law through the Judiciary Act of 1789

(id. at 399-406, 422-23), and the expansion authorized by the

Act of 1867. Id. at 415-22.

The validity of this historical analysis, which ignored the

information in Professor Bator’s then-recent Harvard Law

Review article, was strongly challenged even when it was

announced, by Justice Harlan’s dissent. Jd. at 449-63. Now,

under the assault of intense historical investigation, both of

Fay’s pillars have crumbled. Fay’s statements about the com-

mon law usages of habeas and about the intent of Congress in

passing the Act of 1867 having been shown to be deeply

flawed. See, e.g., Dallin H. Oaks, Legal History in the High

Court — Habeas Corpus, 64 Micu. L. Rev. 451 (1966); Lewis

Mayers, The Habeas Corpus Act of 1867: The Supreme Court

as Legal Historian, 33 U. Cm. L. Rev. 31 (1965); H

Friendly, Is Innocence Irrelevant?, supra.'° cree: Ma

Moreover, quite apart from its historical in

Fay’s belief in the universal availability of federal iaiaborus

federal questions has been rejected by this Court, both in the

context of habeas corpus and elsewhere. Although that rejec-

tion 1s most explicit in Wainwright v. Sykes, 433 U.S. 72

87-89 (19977), Coleman v. Thompson, 501 U.S. 772, 744-51

(1991), and Keeney v. Tamayo-Reyes, 504 U.S. 1, 5-8 (1992)

it is clearly reflected in other statements by the Court as well

“Thus, although the scope of the writ of habeas corpus has

been extended beyond that which the most literal reading of

the statute might require, the Court has never considered it a

generally available federal remedy for every violation of

federal rights.” Lehman v. Lycoming County Children’s Ser-

vices, 458 U.S. 502, 510 (1982) (finding no federal jurisdic-

tion over involuntary termination of parental rights). The

Court disapproved “a generally framed principle that every

person asserting a federal right is entitled to one unencum-

bered opportunity to litigate that right in a federal district

court, regardless of the legal posture in which the federal

claim arises,” in Allen v. McCurry, 449 U.S 90, 103-04 (1980)

(construing 28 U.S.C. § 1983). “[T]here is no ‘universal right

to litigate a federal claim in a federal district court.’ ” Mat-

sushita Electrical Industrial Co., Inc., v. Epstein U.S

__, 116 S. Ct. 873, 883 (1996).11 oS oe ce

. The court of appeals’ handling of this case not only

divests Congress of its authority to legislate with regard to

10 Efforts to challenge Professor Bator and , i

support Fay’s anal

have been unsuccessful. See, e.g., Clarke D. Forsythe, The Historical

Origins of Broad Federal Habeas Review Reconsidered, 70 Notre DaME

L. Rev. 1079 (1995) (critiquing works i

pee . tiquing by Gary Peller, James Liebman, and

u Justice Scalia has specifically criticized “the theory advanced i

Fay v. Noia, that a federal forum must be afforded for every federal claim

of a state criminal defendant” as being “profoundly wrong.” Withrow vy.

a » 507 U.S. 680, 721-24 (1993) (concurring in part and dissenting in

habeas corpus, it unacceptably denigrates the ability of state

courts to make responsible determinations of federal ques-

tions such as competency for execution.

While we can assume there is a special role for

Article III courts in the interpretation and applica-

tion of federal law in [some] instances .. . , we do

not for that reason conclude that state courts are a

less than adequate forum for resolving federal ques-

tions. A doctrine based on the inherent inadequacy

of state forums would run counter to basic princi-

ples of federalism. In Stone v. Powell, 428 U.S. 465,

96 S. Ct. 3037, 49 L.Ed.2d 1067 (1976), we

expressed our “emphatic reaffirmation . . . of the

constitutional obligation of the state courts to

uphold federal law, and [our] expression of confi-

dence in their ability to do so.”

Idaho v. Coeur d’Alene Tribe of Idaho, __ U.S. __., 117 S.

Ct. 2028, 2037 (1997).

It being clear that the Suspension Clause is not violated

by enforcing the § 2244(b)(1) and (2) restrictions on succes-

sive petitions, the court of appeals was not entitled to disre-

gard the plain meaning of the statute. Sumner v. Mata, 449

U.S. at 545-48 and n.2 (this Court refused to read limitation

into language of habeas statute and affirmed that “it is the

duty of this [CJourt to see to it that the jurisdiction of the

[district court], which is defined and limited by statute, is not

exceeded”). Martinez-Villareal was accorded a full and fair

opportunity to litigate his competency for execution in the

state court, with opportunity to request certiorari review in

this Court, and that is all that he is entitled to.'* Therefore,

12 Permitting federal review of competency for execution only by

certiorari does not prejudice inmates because, even apart from the

AEDPA’s restrictions, the scope of review of such claims is extremely

narrow. Competency determinations are factual matters, based largely on

assessment of demeanor and credibility, so the trial judge’s conclusions

must be accepted by all federal courts if supported by the record.

Demosthenes v. Baal, 495 U.S. 731, 735 (1990); Miller v. Fenton, 474 U.S.

this Court should enforce the Act in this case, by holding that

Martinez-Villareal is subject to it, that his current petition is

successive, and that because it does not satisfy the require-

ments of the Act, it cannot be entertained by the district court.

REGARDLESS OF HOW THE COURT DETERMINES

THE MERITS OF THE CLAIMS PRESENTED BY PETI-

TIONERS, THE COURT POSSESSES JURISDICTION

OVER THOSE CLAIMS.

A. Propriety of Relying on Multiple Jurisdictional Basis.

The appropriate basis for the Court’s jurisdiction is

bound up with the merits of the case. This matter reached the

Ninth Circuit through a motion requesting permission to file a

successive petition, as required by 28 U.S.C. § 2244(b)(3)(A).

Section 2244(b)(3)(E) forbids review of such rulings by

rehearing or certiorari, suggesting that parties seeking review

of the circuit court’s determination cannot use “statutory”

certiorari, and can obtain relief only by a writ under 28

U.S.C. § 1651(a). However, the Ninth Circuit refused to apply

the AEDPA, and avoided its constraints on successive habeas

petitions by creating a special category of “non-successive”

successive petitions. 118 F.3d at 632-35. If the AEDPA and its

preclusion of review do not apply here, then ordinary cer-

tiorari is available. However, Petitioners’ position is that the

Ninth Circuit is wrong in its interpretation of the AEDPA, so

104, 112-17 (1985); Maggio v. Fulford, 462 U.S. 111, 116-18 (1983). All

the opinions in Ford v. Wainwright clearly contemplated that that standard

of review would apply to competency for execution, and federal cases

applying Ford consistently defer to state court determinations supported by

the evidence. See, e.g., Weeks v. Jones, 52 F.3d 1559, 1562 (11th Cir.), cert.

denied, 115 S. Ct. 1841 (1995); Shaw v. Armontrout, 900 F.2d 123, 126 (8th

Cir. 1990); Graham v. Lynaugh, 854 F.2d 715, 720-21 (Sth Cir. 1988).

Where (as here) the state court conducted a meaningful evidentiary

hearing, there simply will be no grounds for relief, regardless of which

federal court conducts the review. In effect, the state court’s determination

of the fact-bound competency issue is dispositive of the federal claim.

that if Petitioners approached this Court only by means of

statutory certiorari, and persuaded it that the Ninth Circuit

should have applied the Act, they might find that they had lost

their remedy, by persuading the Court that it lacks jurisdiction

to hear the case. Cf. Felker, 116 S. Ct. at 2341 (dismissing

writ of certiorari for lack of jurisdiction).

To avoid this possibility, Petitioners brought a combined

petition, relying on both statutory certiorari (28 U.S.C.

§ 1254(1)) and all the various forms of relief permitted under

the All Writs Act (28 U.S.C. § 1651(a)). This Court simul-

taneously entertained variously-framed petitions, brought by

different parties but all raising the same issue of statutory

construction, in Ex parte Collett, 337 U.S. 55, 57 (1949),

Kilpatrick v. Texas & Pacific Ry. Co., 337 U.S. 75, 77 (1949),

and United States v. National City Lines, Inc., 337 U.S. 78, 80

(1949). Its willingness to do so seems to indicate that, where

there is doubt about the appropriate vehicle by which to

present an important statutory or constitutional issue, provid-

ing a variety of options, so that the procedural niceties of any

particular mechanism do not prevent review, is acceptable to

the Court. See R. Stern er at, Supreme Court Practice at

493-94 and n.5 (7th ed. 1996). Although the Court granted

“certiorari” in this case, it did not specify the authority

employed. Since the issue apparently remains open, Peti-

tioners discuss below what appear to be the relevant jurisdic-

tional concerns, but the Court is urged to employ whatever

procedural option it prefers to reach the merits of this case.

B. “Statutory” Certiorari Under 28 U.S.C. § 1254(1).

If the preclusion of certiorari review in 28 U.S.C.

§ 2244(b)(3)(E) applies to the court of appeals’ decision in

this case, then this Court would have to resort to an “extraor-

dinary writ” to consider the matter. However, Petitioners

contend that statutory certiorari is available, because of the

nature of the ruling actually made by the Ninth Circuit and

because of the language of the review-prohibiting provision.

The § 2244(b)(3)(E) prohibition on review applies only

to “The grant or denial of an authorization by a court of

appeals to file a second or successive application... ”

However, the Ninth Circuit neither granted nor denied autho-

rization for the filing of a second or successive petition.

Instead, it concluded that, “Martinez-Villareal’s competency

claim is not subject to the restrictions imposed by § 2244(b).

Therefore, we dismiss as unnecessary Martinez-Villareal’s

motion for authorization to file a petition for writ of habeas

corpus in the district court.” 118 F.3d at 634 (emphasis

added). Thus, the issue before this Court simply is not one to

which the prohibition of review applies — the question here is

whether the court of appeals was correct that “the restrictions

imposed by § 2244(b)” do not govern competency for execu-

tion claims, and only if that decision is reversed will any

court actually determine whether authorization should be

granted for the filing of a second petition by Martinez-Vil-

lareal. Hence, the prohibition against review is not applicable.

That this is the proper approach is demonstrated by this

Court’s handling of prior cases involving similar restrictions

on review. See Johnson v. Robison, 415 U.S. 361, 267 (1974);

McNary v. Haitian Refugee Center, Inc., 498 U.S. 479, 492

(1991). Similarly, the issues here are the proper construction

of the AEDPA (i.e., whether it should be understood to apply

to the class of claims of incompetency for execution pre-

sented in successive habeas petitions), and the constitu-

tionality of the AEDPA, rather than an individual

determination under the AEDPA about whether to grant

authorization for a particular successive petition. Therefore,

Johnson and McNary show that the prohibition on review in

28 U.S.C. § 2244(b)(3)(E) does not apply to the questions

raised by this case, and that this Court can exercise review by

means of “statutory” certiorari.

C. Jurisdiction Pursuant to the All Writs Act, 28 U.S.C.

§ 1651(a), and Supreme Court Rule 20.

The types of writs available under the statute have been

summarized as follows:

In general, the writ of mandamus is sought to

compel a lower court to do something it has refused

btin tie. soe ith, >) ee

to do, and the writ of prohibition to prohibit it from

doing something it otherwise will do. But since

almost any issue may be phrased either affirma-

tively or negatively, these writs are often used inter-

changeably; frequently, indeed, counsel request

both “mandamus and prohibition” to play it safe.

The writ of certiorari under § 1651 orders the lower

court to certify the record to the Supreme Court.

This rarely used writ has been used to bring before

the Court for review, in exceptional circumstances,

otherwise non-appealable orders. It “is not the stat-

utory writ of certiorari” but instead “a kind of

reserve power, preserved by the ‘all-writs’ section,

28 U.S.C. § 1651(a), and available for use in excep-

tional cases.”

Although the several writs to some extent serve

different functions, they overlap considerably, and

the same general principles guide the Court in

determining whether to allow each of them.

STERN ET AL. at 493-94 (citations omitted). This case demon-

strates the truth of these comments: we have exceptional

circumstances involving an arguably non-appealable order;

Petitioners desire the district court to be prohibited from

entertaining Martinez-Villareal’s successive habeas petition;

but the occasion for the problem is the court of appeals’

usurpation of judicial power, by imposing on the AEDPA an

interpretation it will not bear, so that it supposedly allows

Martinez-Villareal to file a successive petition. Therefore,

Petitioners request this Court to use whichever writ it deems

proper to review the court of appeals’ “proposed disposition

of a motion for leave to file a second or successive habeas

petition,” as invited by the concurring opinions of Justices

Stevens and Souter in Felker, 116 S. Ct. at 2341.

Section 1651(a), as explicated by Supreme Court Rule

20, requires that for the extraordinary writs to issue: (1) such

action must be in aid of this Court’s appellate jurisdiction; (2)

exceptional circumstances must exist that warrant the exercise

of this Court’s discretionary powers; and (3) adequate relief

cannot be obtained in any other form or from any other court.

All of these somewhat overlapping considerations are present

in this case.

Granting an “extraordinary writ” here would be partic-

ularly appropriate in light of this Court's announced willing-

ness to employ such a writ “where it was the only means of

forestalling intrusion by the federal judiciary on a delicate

area of federal-state relations, State of Maryland v. Soper, 270

U.S. 9, 46 S. Ct. 185, 70 L. Ed. 449 (1926).” Will v. United

States, 389 U.S. 90, 95 (1967). In Soper, this Court recog-

nized that the effect of the removal to federal court of a

murder case involving revenue agents was that “the jurisdic-

tion of the courts of a state to try offenses against its own

laws and in violation of its own peace and dignity is wrested

from it by the order of an inferior federal court;” therefore, to

prevent improper intrusion by an inferior federal court into

the criminal processes of a state (comparable to the intrusions

that this Court and Congress recognize are visited upon the

states through excessive habeas proceedings), this Court

granted mandamus and reversed the erroneous removal order.

270 U.S. at 29-30.

In sum, Petitioners assert that jurisdiction exists for this

Court to review the Ninth Circuit's decision by means of

ordinary “statutory” certiorari, despite the existence of the

limitation on review included in the AEDPA. If, however, the

Court concludes that statutory certiorari is unavailable, it

should exercise its discretion to hear the case under which-

ever of the § 1651(a) “extraordinary writs” is appropriate.

CONCLUSION

The Ninth Circuit has usurped legislative authority by

rewriting the 1996 Antiterrorism and Effective Death Penalty

Act, even though that statute does not, in fact, contravene the

Suspension Clause. Martinez-Villareal is not constitutionally

entitled to federal collateral review of his competency for

execution claim, and has had full and fair direct state and

federal review of that factual issue. Petitioners therefore

respectfully urge this Court to use whatever writ is appropri-

ate, to review this case and to correct the error of the court of

appeals, by holding that Martinez- Villareal has filed a succes-

sive petition subject to the restrictions of the AEDPA, that it

does not meet the requirements of that statute, and that the

court of appeals’ order transferring the petition to the district

court must be vacated, the successive petition to be dismissed

with prejudice.

Respectfully submitted,

Grant Woops

Attorney General

Pau, J. McMurpre

Chief Counsel

Bruce M. Fero

Assistant Attorney General

(Counsel of Record)

Attorneys for Petitioners

APENDICES

App. |

APPENDIX A

28 U.S.C. §§ 2244, 2253, 2254, and 2255, as amended

(Reflecting changes effected by P.L. 104-132,

Antiterrorism and Effective Death Penalty Act of 1996)

§ 2244. FINALITY OF DETERMINATION [Amended.]

(a) No circuit or district judge shall be required to

entertain an application for a writ of habeas corpus to inquire

into the detention of a person pursuant to a judgment of a

court of the United States if it appears that the legality of such

detention has been determined by a judge or court of the

United States on a prior application for a writ of habeas

corpus andthe—petttron—presents_ne—new—groundnot—there-

tofore—presented_and-—determined—_and _thejudge—or—courtts

iefied-that-tl le-of- justi +H 4 ,

inquiry; except as provided in section 2255.

(b)(1) A claim presented in a second or successive

habeas corpus application under section 2254 that was pre-

sented in a prior application shall be dismissed.

App. 2

(2) A claim presented in a second or successive habeas

corpus application under section 2254 that was not presented

in a prior application shall be dismissed unless -

(A) the applicant shows that the claim relies

on a new rule_of constitutional law, made retroac-

tive to cases on collateral review by the Supreme

Court, that was previously unavailable; or

(B)(1) the factual predicate for the claim

could not have been discovered previously through

the exercise of due diligence; and

(ii) the facts underlying the claim, if proven

and viewed in light of the evidence as a whole,

would be sufficient to establish by clear and cen-

vincing evidence that, but for constitutional error,

no reasonable factfinder would have found the

applicant guilty of the underlying offense.

(3)(A) Before a second or successive application per-

mitted by this section is filed in the district court, the appli-

cant shall move in the appropriate court of appeals for an

order authorizing the district court to consider the applica-

tion.

(B) A motion in the court of appeals for an order

authorizing the district court to consider a second or succes-

sive application shall be determined by a three-judge panel of

the court of appeals.

second or successive application only if it determines that the

application makes a prima facie showing that the application

satisfies the requirements of this subsection.

(D) The court of appeals shall grant or deny the autho-

rization to file a second or successive application not later

than 30 days after the filing of the motion.

(E) The grant or denial of an authorization by a court

of appeals to file a second or successive application shall not

App. 3

be appealable and shall not be the subject of a petition for

rehearing or for a writ of certiorari.

(4) A district court shall dismiss any claim presented in

a second or successive application that the court of appeals

has authorized to be filed unless the applicant shows that the

claim satisfies the requirements of this section.

a person in custody pursuant to the judgment of a State court,

a prior judgment of the Supreme Court of the United States on

an appeal or review by a writ of certiorari at the instance of

the prisoner of the decision of such State court, shall be

conclusive as to all issues of fact or law with respect to an

asserted denial of a Federal right which constitutes ground

for discharge in a habeas corpus proceeding, actually adjudi-

cated by the Supreme Court therein, unless the applicant for

the writ of habeas corpus shall plead and the court shall find

the existence of a material and controlling fact which did not

appear in the record of the proceeding in the Supreme Court

and the court shall further find that the applicant for the writ

of habeas corpus could not have caused such fact to appear in

such record by the exercise of reasonable diligence.

(d)(1) A 1-year period of limitation shall apply to an

application for a writ of habeas corpus by a person in custody

pursuant to the judgment of a State court. The limitation

period shall run from the latest of -

(A) the date on which the judgment became

final by the conclusion of direct review or the expi-

ration of the time for seeking such review;

(B) the date on which the impediment to filing

an application created by State action in violation

of the Constitution or laws of the United States is

removed, if the applicant was prevented from filing

by such State action;

asserted was initially recognized by the Supreme

Ee ee

App. 4

Court, if the right has been newly recognized by the

Supreme Court and made retroactively applicable to

cases on collateral review; or

(D) the date on which the factual predicate of

the claim or claims presented could have been dis-

covered through the exercise of due diligence.

(2) The time during which a properly filed application for

State postconviction or other collateral review with respect to

the pertinent judgment or claim is pending shall not be

counted toward any period of limitation under this subsection. —

(June 25, 1948, ch. 646, 62 Stat. 965; Nov. 2, 1966, Pub. L.

89-711, § 1, 80 Stat. 1104; Apr. 24, 1996, Pub. L. 104-132,

$§ 101, 106.)

§ 2253. APPEAL [Amended.]

(a) In a habeas corpus proceeding or a proceeding

under section 2255 before a etrewit-or district judge, the final

order shall be subject to review, on appeal, by the court of

appeals for the circuit where in which the proceeding is had

held.

(b) There shall be no right of appeal from sueh-an a

final order in a proceeding to test the validity of a warrant to

remove; to another district or place for commitment or trial a

person charged with a criminal offense against the United

States, or to test the validity of his such person's detention

pending removal proceedings.

(c)(1) Unless a circuit justice or judge issues a certifi-

cate of appealability, an Am appeal may not be taken to the

court of appeals from -

(A) the final order in a habeas corpus pro-

ceeding where in which the detention complained of

arises out of process issued by a State court +untess

the-justice—or-—judge—whe-rendered—the—order—or—a

(B) the final order in a proceeding under sec-

tion 2255.

(2) A certificate of appealability may issue under para-

graph (1) only if the applicant has made a substantial show-

ing of the denial of a constitutional right.

(3) The certificate of appealability under paragraph (1)

shall indicate which specific issue or issues Satisfy the show-

ing required by paragraph (2).

(June 25, 1948, ch. 646, 62 Stat. 967; May 24, 1949, ch. 139,

§ 113, 63 Stat. 105; Oct. 31, 1951, ch. 655, § 52, 65 Stat. 727;

Apr. 24, 1996, Pub. L. 104-132, § 102.)

§ 2254. STATE CUSTODY; REMEDIES IN FEDERAL

COURTS [Amended.]

(a) The Supreme Court, a Justice thereof, a circuit

judge, or a district court shall entertain an application for a

writ of habeas corpus in behalf of a person in custody pur-

suant to the judgment of a State court only on the ground that

he is in custody in violation of the Constitution or laws or

treaties of the United States.

(b)(7) An application for a writ of habeas corpus on in

behalf of a person in custody pursuant to the judgment of a

State court shall not be granted unless it appears that —

(A) the applicant has exhausted the remedies

available in the courts of the State: or that

(B)(1) there is either an absence of available

State corrective process; or the—existenee—of

(ii) circumstances exist that rendering such

process ineffective to protect the rights of the appii-

cant prisoner.

App. 6

(2) An application for a writ of habeas corpus may be

denied on the merits, notwithstanding the failure of the appli-

cant to exhaust the remedies available in the courts of the

State.

(3) A State shall not be deemed to have waived the

exhaustion requirement or be estopped from reliance upon the

requirement unless the State, through counsel, expressly

waives the requirement.

the remedies available in the courts of the State, within the

meaning of this section, if he has the right under the law of

the State to raise, by any available procedure, the question

presented.

(d) An application for a writ of habeas corpus on behalf

of a person in custody pursuant to the judgment of a State

court shall not be granted with respect to any claim that was

adjudicated on the merits in State court proceedings unless

the adjudication of the claim -

(1) resulted in a decision that was contrary

to, or involved an unreasonable application of,

clearly established Federal law, as determined by

the Supreme Court of the United States; or

(2) resulted in a decision that was based on

an unreasonable determination of the facts in light

of the evidence presented in the State court pro-

ceeding.

fd}e)(1) In a@ amyproceeding instituted tn—a—Federal

eourt by an application for a writ of habeas corpus by a

person in custody pursuant to the judgment of a State court, a

determination eafter-a-hearing-on-the-merits of a factual issue:

made by a State court of-eompetent- jurisdiction in-e-proeeed-

trgto—whtehtheappheant for the—writ_and the State—or-an

offreer—-or-_agent_thereof-were_parties_evidenced by—a_written

firding—written-opinton-or-_other tetabie_and_adequate—writ-

ten-indietea; shall be presumed to be correct. The applicant

App. 7

shall have the burden of rebutting the presumption of correct-

ness by clear and convincing evidence. ptentess-the-appticant

(2) If the applicant has failed to develop the factual

basis of a claim in State court proceedings, the court shall not

hold an evidentiary hearing on the claim unless the applicant

shows that —

(A) the claim relies on —

(1) a new rule of constitutional law,

made retroactive to cases on collateral review

by the Supreme Court, that was previously

unavailable; or

(ii) a@ factual predicate that could not

have been previously discovered through the

exercise of due diligence; and

(B) the facts underlying the claim would be

sufficient to establish by clear and convincing evi-

dence that but for constitutional error, no reason-

able factfinder would have found the applicant

guilty of the underlying offense.

€e(f) If the applicant challenges the sufficiency of the

evidence adduced in such State court proceeding to support

the State court’s determination of a factual issue’ made

therein, the applicant, if able, shall produce that part of the

App. 9

record pertinent to a determination of the sufficiency of the

evidence to support such determination. If the applicant,

because of indigency or other reason is unable to produce

such part of the record, then the State shall produce such part

of the record and the Federal court shall direct the State to do

so by order directed to an appropriate State official. If the

State cannot provide such pertinent part of the record, then

the court shall determine under the existing facts and circum-

stances what weight shall be given to the State court’s factual

determination.

€(g) A copy of the official records of the State court,

duly certified by the clerk of such court to be a true and

correct copy of a finding, judicial opinion, or other reliable

written indicia showing such a factual determination by the

State court shall be admissible in the Federal court proceed-

ing.

(h) Except as provided in section 408 of the Controlled

Substances Act,! in all proceedings brought under this sec-

tion, and any subsequent proceedings on review, the court

may appoint counsel for an applicant who is or becomes

financially unable to afford counsel, except as provided by a

rule promulgated by the Supreme Court pursuant to statutory

authority. Appointment of counsel under this section shall be

governed by section 3006A of title 18.

(1) The ineffectiveness or incompetence of counsel dur-

ing Federal or State collateral post-conviction proceedings

shall not be a ground for relief in a proceeding arising under

section 2254.

(June 25, 1948, ch. 646, 62 Stat. 967; Nov. 2, 1966, Pub. L.

89-711, § 2, 80 Stat. 1105; Apr. 24, 1996, Pub. L. 104-132,

§ 104.)

1 21 USC. § 848.

App. 10

§ 2255. FEDERAL CUSTODY; REMEDIES ON MOTION

ATTACKING SENTENCE [Amended.]}

A prisoner in custody under sentence of a court estab-

lished by Act of Congress claiming the right to be released

upon the ground that the sentence was imposed in violation of

the Constitution or laws of the United States, or that the court

was without jurisdiction to impose such sentence, or that the

sentence was in excess of the maximum authorized by law, or

is otherwise subject to collateral attack, may move the court

which imposed the sentence to vacate, set aside or correct the

sentence.

' eel h-retiet , ,

Unless the motion and the files and records of the case

conclusively show that the prisoner is entitled to no relief, the

court shall cause notice thereof to be served upon the United

States attorney, grant a prompt hearing thereon, determine the

issues and make findings of fact and conclusions of law with

respect thereto. If the court finds that the judgment was

rendered without jurisdiction, or that the sentence imposed

was not authorized by law or otherwise open to collateral

attack, or that there has been such a denial or infringement of

the constitutional rights of the prisoner as to render the

judgment vulnerable to collateral attack, the court shall

vacate and set the judgment aside and shall discharge the

prisoner or resentence him or grant a new trial or correct the

sentence as may appear appropriate.

A court may entertain and determine such motion without

requiring the production of the prisoner at the hearing.

second-or-suceesstve motion _for-simitartretiefon-pehalt-of the

same—prisoner-

An appeal may be taken to the court of appeals from the

order entered on the motion as from a final judgment on

application for a writ of habeas corpus.

App. 11

An application for a writ of habeas corpus in behalf of a

prisoner who is authorized to apply for relief by motion

pursuant to this section, shall not be entertained if it appears

that the applicant has failed to apply for relief, by motion, to

the court which sentenced him, or that such court has denied

him relief, unless it also appears that the remedy by motion is

inadequate or ineffective to test the legality of his detention.

A 1-year period of limitation shall apply to a motion

under this section. The limitation period shall run from the

latest of —

(1) the date on which the judgment of convic-

tion becomes final;

(2) the date on which the impediment to mak-

ing a motion created by governmental action in

violation of the Constitution or laws of the United

States is removed, if the movant was prevented from

making a motion by such governmental action;

(3) the date on which the right asserted was

initially recognized by the Supreme Court, if that

right has been newly recognized by the Supreme

Court and made retroactively applicable to cases on

collateral review; or

(4) the date on which the facts Supporting the

claim or claims presented could have been discov-

ered through the exercise of due diligence.

Except as provided in section 408 of the Controlled

Substances Act, in all proceedings brought under this section,

and any subsequent proceedings on review, the court may

appoint counsel, except as provided by a rule promulgated

the Supreme Court pursuant to Statutory authority. Appoint-

App. 12

A second or successive motion must be certified as pro-

vided in section 2244 by a panel of the appropriate court of

appeals to contain —

(1) newly discovered evidence that, if proven

and viewed in light of the evidence as a whole,

would be sufficient to establish by clear and con-

vincing evidence that no reasonable factfinder

would have found the movant guilty of the offense;

(2) a new rule of constitutional law, made

retroactive to cases on collateral review by the

Supreme Court, that was previously unavailable.

(June 25, 1948, ch. 646, 62 Stat. 967; May 24, 1949, ch. 139,

§ 114, 63 Stat. 105; Apr. 24, 1996, Pub. L. 104-132, § 105.)

§ 2253. APPEAL [Amended.]

(a) In a habeas corpus proceeding or a proceeding

under section 2255 before a etrewit-or district judge, the final

order shall be subject to review, on appeal, by the court of

appeals for the circuit where in which the proceeding is had

held.

(b) There shall be no right of appeal from sueh-an a

final order in a proceeding to test the validity of a warrant to

remove; to another district or place for commitment or trial+ a

person charged with a criminal offense against the United

States, or to test the validity of his such person's detention

pending removal proceedings.

(cM1) Unless a circuit justice or judge issues a certifi-

cate of appealability, an Am appeal may not be taken to the

court of appeals from -

(A) the final order in a habeas corpus pro-

ceeding where in which the detention complained of

arises out of process issued by a State court-uniess

the—pustree—or_judge—who_rendered—the—order—or—a

App. 13

bte—eatse- or

(B) the final order in a proceeding under sec-

tion 2255.

(2) A certificate of appealability may issue under para-

graph (1) only if the applicant has made a substantial show-

ing of the denial of a constitutional right.

(3) The certificate of appealability under paragraph (1)

shall indicate which specific issue or issues Satisfy the show-

ing required by paragraph (2).

(June 25, 1948, ch. 646, 62 Stat. 967: May 24, 1949, ch. 139,

§ 113, 63 Stat. 105; Oct. 31, 1951, ch. 655, § 52, 65 Stat. 727:

Apr. 24, 1996, Pub. L. 104-132, § 102.)

§ 2254. STATE CUSTODY; REMEDIES IN FEDERAL

COURTS [Amended.]}

(a) The Supreme Court, a Justice thereof, a circuit

judge, or a district court shall entertain an application for a

writ of habeas corpus in behalf of a person in custody pur-

suant to the judgment of a State court only on the ground that

he is in custody in violation of the Constitution or laws or

treaties of the United States.

(b)(7) An application for a writ of habeas corpus on in

behalf of a person in custody pursuant to the judgment of a

State court shall not be granted unless it appears that —

(A) the applicant has exhausted the remedies

available in the courts of the State: or that

(B)1) there is either an absence of available

State corrective process; or the-existenee—of

(ii) circumstances exist that rendering such

Process ineffective to protect the rights of the appli-

Cant prisoner.

App. 14

(2) An application for a writ of habeas corpus may be

denied on the merits, notwithstanding the failure of the appli-

cant to exhaust the remedies available in the courts of the

State.

(3) A State shall not be deemed to have waived the

exhaustion requirement or be estopped from reliance upon the

requirement unless the State, through counsel, expressly

waives the requirement.

the remedies available in the courts of the state, within the

meaning of this section, if he has the right under the law of

the State to raise, by any available procedure, the question

presented.

(d) An application for a writ of habeas corpus on behalf

of a person in custody pursuant to the judgment of a State

court shall not be granted with respect to any claim that was

adjudicated on the merits in the State court proceedings

unless the adjudication of the claim -

(1) resulted in a decision that was contrary

to, or involved an unreasonable application of,

clearly established Federal law, as determined by

the Supreme Court of the United States; or

(2) resulted in a decision that was based on

an unreasonable determination of the facts in light

of the evidence presented in the State court pro-

ceeding.

dye 1) In a any proceeding instituted in-eFederal

ten-indieia; shall be presumed to be correct. The applicant

App. 15

shall have the burden of rebutting the presumption of correct-

ness by clear and convincing evidence, untess-the—appiteant

(2) If the applicant has failed to develop the factual

basis of a claim in State court proceedings, the court shall not

hold an evidentiary hearing on the claim unless the applicant

shows that —

(A) the claim relies on -

(1) a new rule of constitutional law,

made retroactive to cases on collateral review

by the Supreme Court, that was previously

unavailable; or

(ii) a factual predicate that could not

have been previously discovered through the

exercise of due diligence; and

(B) the facts underlying the claim would be

sufficient to establish by clear and convincing evi-

dence that but for constitutional error, no reason-

able factfinder would have found the applicant

guilty of the underlying offense.

te(f) If the applicant challenges the sufficiency of the

evidence adduced in such State court proceeding to support

the state court’s determination of a factual issue made therein,

the applicant, if able, shall produce that part of the record

App. 17

pertinent to a determination of the sufficiency of the evidence

to support such determination. If the applicant, because of

indigency or other reason is unable to produce such part of

the record, then the State shall produce such part of the record

and the Federal court shall direct the State to do so by order

directed to an appropriate State official. If the State cannot

provide such pertinent part of the record, then the court shall

determine under the existing facts and circumstances what

weight shall be given to the State court’s factual determina-

tion.

¢(g) A copy of the official records of the State court,

duly certified by the clerk of such court to be a true and

correct copy of a finding, judicial opinion, or other reliable

written indicia showing such a factual determination by the

State court shall be admissible in the Federal court proceed-

ing.

(h) Except as provided in section 408 of the Conti olled

Substances Act,? in all proceedings brought under this sec-

tion, and any subsequent proceedings on review, the court

may appoint counsel for an applicant who is or becomes

financially unable to afford counsel, except as provided by a

rule promulgated by the Supreme Court pursuant to statutory

authority. Appointment of counsel under this section shall be

governed by section 3006A of title 18.

(1) The ineffectiveness or incompetence of counsel dur-

ing Federal or State collateral post-conviction proceedings

shall not be a ground for relief in a proceeding arising under

section 2254.

(June 25, 1948, ch. 646, 62 Stat. 967; Nov. 2, 1966, Pub. L.

89-711, § 2, 80 Stat. 1105; Apr. 24, 1996, Pub. L. 104-132,

§ 104.)

2 21 USC. § 848.

App. 18

§ 2255. FEDERAL CUSTODY; REMEDIES ON MOTION

ATTACKING SENTENCE [Amended.]

A prisoner in custody under sentence of a court estab-

lished by Act of Congress claiming the right to be released

upon the ground that the sentence was imposed in violation of

the Constitution or laws of the United States, or that the court

was without jurisdiction to impose such sentence, or that the

sentence was in excess of the maximum authorized by law, or

is otherwise subject to collateral attack, may move the court

which imposed the sentence to vacate, set aside or correct the

sentence.

: f ; ef rrety be made—at-any—time- -

Unless the motion and the files and records of the case

conclusively show that the prisoner is entitled to no relief, the

court shall cause notice thereof to be served upon the United

States attorney, grant a prompt hearing thereon, determine the

issues and make findings of fact and conclusions of law with

respect thereto. If the court finds that the judgment was

rendered without jurisdiction, or that the sentence imposed

was not authorized by law or otherwise open to collateral

attack, or that there has been such a denial or infringement of

the constitutional rights of the prisoner as to render the

judgment vulnerable to collateral attack, the court shall

vacate and set the judgment aside and shall discharge the

prisoner or resentence him or grant a new trial or correct the

sentence as may appear appropriate.

A court may entertain and determine such motion without

requiring the production of the prisoner at the hearing.

Fho-sontoncing-court — erst ™ — _ r “e . r rite

same—prisoner:

An appeal may be taken to the court of appeals from the

order entered on the motion as from a final judgment on

application for a writ of habeas corpus.

App. 19

An application for a writ of habeas corpus in behalf of a

prisoner who is authorized to apply for relief by motion

pursuant to this section, shall not be entertained if it appears

that the applicant has failed to apply for relief, by motion, to

the court which sentenced him, or that such court has denied

him relief, unless it also appears that the remedy by motion is

inadequate or ineffective to test the legality of his detention.

A 1-year period of limitation shall apply to a motion

under this section. The limitation period shall run from the

latest of —

(1) the date on which the judgment of convic-

tion becomes final;

(2) the date on which the impediment to mak-

ing a motion created by governmental action in

violation of the Constitution or laws of the United

States is removed, if the movant was prevented from

making a motion by such governmental action;

(3) the date on which the right asserted was

initially recognized by the Supreme Court, if that

right has been newly recognized by the Supreme

Court and made retroactively applicable to cases on

collateral review; or

(4) the date on which the facts supporting the

claim or claims presented could have been discov-

ered through the exercise of due diligence.

Except as provided in section 408 of the Controlled

Substances Act, in all proceedings brought under this section,

and any subsequent proceedings on review, the court may

appoint counsel, except as provided by a rule promulgated by

the Supreme Court pursuant to statutory authority. Appoint-

ment of counsel under this section shall be governed by

section 3006A or title 18.

App. 20

A second or successive motion must be certified as pro-

vided in section 2244 by a panel of the appropriate court of

appeals to contain —

(1) newly discovered evidence that, if proven

and viewed in light of the evidence as a whole,

would be sufficient to establish by clear and con-

vincing evidence that no reasonable factfinder

would have found the movant guilty of the offense;

(2) a new rule of constitutional law, made

retroactive to cases on collateral review by the

Supreme Court, that was previously unavailable.

(June 25, 1948, ch. 646, 62 Stat. 967; May 24, 1949, ch. 139,

§ 114, 63 Stat. 105; Apr. 24, 1996, Pub. L. 104-132, § 105.)

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