Respondents Brief — Stewart v. Martinez-Villareal

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In The |

Supreme Court of the Unike

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

BRIEF FOR RESPONDENT

Pau. BENDER

Arizona State University

College of Law

T , AZ 85287-7906

(602 965-2556

Sean D. O’Brien

Public Interest Litigation Clinic

5319 Rockhill Roa

Kansas City, MO 64110

(816) 363-9371

Frepric F. Kay

Federal Public Defender

“Denise I. YOuNG

Dae A. Baicu

Assistant Federal Public Defender

97 E. Suite 130

Tucson, 85701-1716

(520) 620-7043

BEST AUNLABLE COPY es

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QUESTIONS PRESENTED FOR REVIEW

1. Did the court below err in holding that Mr. Mar-

tinez-Villareal’s federal habeas corpus petition presenting

only a claim of incompetence to be executed was not a

“second or successive” application within the meaning of

amended 28 U.S.C. § 2244(b) where the incompetency

claim had been presented in an earlier petition but dis-

missed without prejudice as premature upon the insis-

tence of the State of Arizona that the time and place to

litigate it was in a subsequent petition like the one now in

issue?

2. Did the court below err in considering, among

the factors bearing upon its construction of the statute,

the principles that statutes should be given a reasonable

construction that avoids needless constitutional adjudica-

tion and absurd results?

3. Does this Court have certiorari jurisdiction to

review the decision below and, if not, is there any suffi-

cient cause for it to exert its extraordinary-writ power to

relieve Arizona of the consequences of Arizona’s own

successful efforts to channel federal court consideration

of Mr. Martinez-Villareal’s incompetency claim into the

present forum?

TABLE OF CONTENTS

Page

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

TABLE OF AUTHORITIES .....6..ccccccccccccccces iii

I Wa os duces ccccccssowcncvccscccess 1

PECL cevsh pesehesvecbvcdesseccocorcese 1

CONSTITUTIONAL PROVISIONS, STATUTES AND

abe cd ebeccevdceseceecncceoees 1

STATEMENT OF THE CASE..........ccsscevceees 4

SUMMARY OF ARGUMENT...............5000005 15

po PT Toy T PLETE LETTE PEELE Ee 16

I THE COURT BELOW PROPERLY HELD THAT

A PETITION CONTAINING MR. MARTINEZ-

VILLAREAL’S COMPETENCY CLAIM, WHICH

HAD BEEN PRESENTED IN HIS FIRST PETI-

TION BUT DISMISSED WITHOUT PREJUDICE

AS PREMATURE, IS NOT A “SECOND OR SUC-

CESSIVE” CLAIM UNDER § 2244(b)........... 16

Il THE COURT BELOW MADE NO MISTAKE IN

CONCLUDING THAT ONE CONSIDERATION

FAVORING ITS CONSTRUCTION OF § 2244(b)

WAS THE FACT THAT ARIZONA’S PROPOSED

CONSTRUCTION OF THE STATUTE WOULD

RAISE SERIOUS SUSPENSION CLAUSE ISSUES

III CONGRESS HAS PLAINLY WITHDRAWN CER-

TIORARI JURISDICTION OVER ARIZONA'S

PETITION, AND THIS CASE PRESENTS NO

EQUITABLE BASIS FOR INVOKING THIS

COURT’S POWER TO ISSUE EXTRAORDINARY

—

—_—

TABLE OF AUTHORITIES

Page

Cases

Barefoot v. Estelle, 463 U.S. 880 (1983) ............... 23

Barnard v. Collins, 13 F.3d 871 (5th Cir. 1994)........ 31

Blodgett v. Holden, 275 U.S. 148 (1927)............45. 19

Blonder-Tongue Laboratories, Inc. v. University of IIli-

nois Foundation, 402 U.S. 313 (1971)............... 32

Burris v. Park, 95 F.3d 465 (7th Cir. 1996)......... 12, 34

Camarano v. Irvin, 98 F.3d 44 (2d Cir. 1996).......... 33

Chambers v. United States, 106 F.3d 472 (2d Cir.

Ps nw5 66d edhe cdbbeshsb chee sobbeus Sedcodendeocec. 20

Christy v. Horn, 115 F.3d 201 (3d Cir. 1997).......... 33

Dickinson v. Maine, 101 F.3d 791 (ist Cir. 1996) ...23, 33

Felker v. Turpin, 116 S.Ct. 2333 (1996). .26, 31, 34, 39, 40

Ford v. Wainwright, 477 U.S. 399 (1986)... 10, 22, 31, 35

In re Davis, 121 F.3d 952 (5th Cir. 1997)............. 28

In re Gasery, 116 F.3d 1051 (Sth Cir. 1997)........ 22, 33

In re Medina, 109 F.3d 1556 (11th Cir. 1996) ...... ... 28

In re Turner, 101 F.3d 1323 (9th Cir. 1996)....13, 14, 33

Granberry v. Greer, 481 U.S. 129 (1987)............... 26

Lindh v. Murphy, 117 S.Ct. 2059 (1997)................ 9

Lindh v. Murphy, 96 F.3d 856 (7th Cir. 1996)...9, 12, 37

Lonchar v. Thomas, 517 U.S. 314 (1996)........ 23, 33, 34

TABLE OF AUTHORITIES - Continued

Page

Lynce v. Mathis, 117 S.Ct. 891 (1997)..............45. 19

Martinez-Villareal v. Lewis, CIV 86-296-TUC-RMB

(D. Ariz. Oct. 21, 1994) (unpublished)......... 5, 7, 8

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

1996), cert. denied, 117 S.Ct. 588 (1996)........ 5, 6, 8

Martinez-Villareal v. Stewart, 118 F.3d 628 (9th Cir.

GP Pen ccnccsiededeesckcsctdsednddacdvcsstestececcs 1

McCleskey v. Zant, 499 U.S. 467 (1991)............ 23, 26

McIntosh v. United States Parole Commission, 115

RS GSP Gad Gk Ck a cecewcccccesceccecccccns 22

Montana v. United States, 440 U.S. 147 (1979) ........ 32

Morrissey v. Brewer, 408 U.S. 471 (1972) ...... 18, 20, 22

Palmer v. Clarke, 961 F.2d 771 (8th Cir. 1992)......... 20

Poyner v. Murray, 508 U.S. 931 (1993) ............... 32

Raley v. Ohio, 360 U.S. 423 (1959) .... 2.2... eee eee ee 37

Reeves v. Little, 120 F.3d 1136 (10th Cir. 1997) ....... 22

Richmond v. Ricketts, 774 F.2d 957 (1985)............. 20

Rose v. Lundy, 455 U.S. 509 (1982)............ 14, 22, 26

Sanders v. United States, 373 U.S. 1 (1963) ........ 26, 36

Specter Motor Service v. McLaughlin, 323 U.S. 101

SEP canccncsccesveconsnnsengqusssesansenessesses 34

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

670, cert. denied, 474 U.S. 975 (1985). ...........005. 5

Strickland v. Washington, 466 U.S. 688 (1984)......... 26

— ee

TABLE OF AUTHORITIES - Continued

Page

Thompson v. Armontrout, 808 F.2d 28 (8th Cir. 1986) .... 20

v. Armontrout, 926 F.2d 396 (8th Cir.

Pec ce ccnsecceccnscudcccaccbedsvebecsoccecesce 20

Thompson v. White, 661 F.2d 103 (8th Cir. 1981)...... 20

Trest v. Cain, 117 S.Ct. 1517 (1997) ..............245. 26

United States ex rel. Greathouse v. Dern, 289 U.S. 352

EEE c cccvcccccccdébdbohdbsbetbeceedcheotcccecces 43

United States v. CIO, 335 U.S. 106 (1948) ............ 19

United States v. Hayman, 342 U.S. 205 (1952)......... 36

United States v. Jin Fuey Moi, 241 U.S. 394 (1916) .... 19

United States v. Locke, 471 U.S. 84 (1985) ............ 36

United States v. Scott, 124 F.3d 1328 (10th Cir. 1997) .... 19

United States v. X-Citement Video, Inc., 513 U.S. 64

Sl: adiéitnln aduteudedbedtindandennet canes 19, 29, 35

CONSTITUTIONAL PROVISIONS AND STATUTES

ee I, Wao ncn conccncctsoduwesscecccess 1

ee CD EE, OEY Soc ceccaucesesvcccesescesess 1

TERA UE Sb ebUscncdcctdccsesdccvectbecs 2, 22

Pt Pris pacedsccccendesesccntecccesceesees 2

dengan Dasetneies ebacenteqeness passim

Eh osecikccocccccsiséctceveseccecdde 4, 22

TABLE OF AUTHORITIES —- Continued

Page

BB BBL, © BOD da dic cticd codicvcowccvecccce ces 26, 29

Rate. Tar, Baek. © Be 6 ives ccccncccccencdpcocceccs 6

Court Rutes

Rule 2(d), Rules Governing Section 2254 Cases In

The United States District Courts.................. 4

Rule 9(b), Rules Governing Section 2254 Cases In

The United States District Courts................. 23

Rule 20, Rules of the Supreme Court of the United

ED 6 cocuusecedcbeaseeede Pete eeseccecoesecess 42

LecIsLATIVE MATERIALS

H.R. Conf. Rep. No. 518, 104th Cong., 2d Sess. 111

(1996) reprinted in 1996 U.S.C. Cong. & Admin.

BE, FD cence ccdocedsotcbc cttkane recibdiec cocadsts< 31

141 Cong. Rec. $7479-03 (daily ed. May 25, 1995) .... 32

141 Cong. Rec. S7663 (daily ed. June 5, 1995)....... 32

OrHer AUTHORITIES

James S. Liebman, ——- _— Next Time?: The

Anachronistic Attac beas Corpus/ Direct

Review Parity, 92 Corum. L. Rev. 1997 ee 34

—— eee

OPINION BELOW

The opinion of the Ninth Circuit Court of Appeals’

panel in Martinez-Villareal v. Stewart, et al., is printed at JA

179 and is reported at 118 F.3d 628 (9th Cir. 1997).

JURISDICTION

One of the questions which this Court granted cer-

tiorari to decide was whether it has jurisdiction to review

this case. See Petitioners’ Brief at i. As we discuss in

Argument III below, pursuant to 28 U.S.C. § 2244(b)(3)(E)

of the Antiterrorism and Effective Death Penalty Act of

1996, this Court does not have statutory certiorari juris-

diction over this case. Moreover, no reasons exist for this

Court to employ an extraordinary writ to consider this

case.

CONSTITUTIONAL AND STATUTORY PROVISIONS

AND RULES INVOLVED

The Fifth Amendment to the Constitution of the

United States, which provides in part:

No person shall be . . . deprived of life...

without due process of law . . .

The Fourteenth Amendment to the Constitution of the

United States, which provides in part:

[NJor shall any State deprive any person of life,

liberty or property, without due process of

law. ...

28 U.S.C. § 2241. Power to grant writ

(a) Writs of habeas corpus may be granted by the

Supreme Court, any justice thereof, the district courts and

any circuit judge within their respective jurisdictions. The

order of a circuit judge shall be entered in the records of

the district court of the district wherein the restraint

complained of is had.

(b) The Supreme Court, any justice thereof, and any

circuit judge may decline to entertain an application for a

writ of habeas corpus and may transfer the application

for hearing and determination to the district court having

jurisdiction to entertain it.

28 U.S.C. § 2243.

A court, justice or judge entertaining an application

for a writ of habeas corpus shall forthwith award the writ

or issue an order directing the respondent to show cause

why the writ should not be granted, unless it appears

from the application that the applicant or person

detained is not entitled thereto.

The court shall summarily hear and determine the

facts, and dispose of the matter as law and justice require.

28 U.S.C. § 2244. Finality of determination

(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, except as provided in section

2255.

(b)(1) A claim presented in a second or successive

habeas corpus application under section 2254 that was

presented in a prior application shall be dismissed.

(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 retroactive to cases

on collateral review by the Supreme Court, that was

previously unavailable; or

(B)(i) 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 convincing 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

permitted by this section is filed in the district court, the

applicant shall move in the appropriate court of appeals

for an order authorizing the district court to consider the

application.

(E) The grant or denial of an authorization by a

court of appeals to file a second or successive application

shall not be appealable and shall not be the subject of a

petition for rehearing or for a writ of certiorari.

28 U.S.C. § 2254:

(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

pursuant to the judgment of ‘a State court only on the

ground that he is in custody in violation of the Constitu-

tion or laws or treaties of the United States.

Rule 2, Rules Governing Section 2254 Cases In The United

States District Courts:

(d) a petition shall be limited to the assertion of a

claim for relief against the judgment or judgments of a

single state court (sitting in a county or other appropriate

political subdivision). If a petitioner desires to attack the

validity of the judgments of two or more state courts

under which he is in custody or may be subject to future

custody, as the case may be, he shall do so by separate

petitions.

STATEMENT OF THE CASE

Respondent Ramon Martinez-Villareal is a mentally

retarded, mentally ill, brain-damaged Mexican citizen

who has been sentenced to death by the State of Arizona

as an accomplice to a robbery during which two men

were shot to death. Mr. Martinez-Villareal was repre-

sented at trial by William Rothstein,’ who also repre-

sented him on direct appeal, State v. Martinez-Villareal,

145 Ariz. 441, 702 P.2d 670, cert. denied, 474 U.S. 975

(1985), and in his first state postconviction proceeding.

During this state postconviction proceeding, a warrant

was issued for Mr. Martinez-Villareal’s execution, and he

attempted to petition the U.S. District Court for federal

habeas corpus relief and obtained a stay of execution

from the district court. The State of Arizona successfully

moved to dismiss each of Mr. Martinez-Villareal’s federal

habeas petitions on the grounds that they contained

claims on which state remedies had not been exhausted.

JA 8.

In late 1990, following the state court’s denial of Mr.

Martinez-Villareal’s second postconviction proceedings,

Sean Bruner was appointed by the U.S. District Court to

represent Mr. Martinez-Villareal in his federal habeas

petition. Mr. Bruner soon discovered that his client had

been treated for schizophrenia with anti-psychotic medi-

cation by Arizona Department of Corrections physicians

1 The district court found that Rothstein’s trial representa-

tion was constitutionally ineffective because he failed to

investigate and present evidence of Mr. Martinez-Villareal’s

obvious mental deficiencies in mitigation of punishment.

Martinez-Villareal v. Lewis, CIV 86-296-TUC-RMB, at 20-30 (D.

Ariz. Oct. 21, 1994) (unpublished). That determination was

reversed on procedural default grounds because the allegations

had been omitted from the first state postconviction petition in

which Mr. Martinez-Villareal was still being represented by

Rothstein. Martinez-Villareal v. Lewis, 80 F.3d 1301, 1305-06 (9th

Cir.), cert. denied, 117 S.Ct. 588 (1996).

since 1986. Mr. Bruner pursued several claims relating to

Mr. Martinez-Villareal’s impaired mental condition,

including his lack of competence for execution. JA 7-11.

Mr. Bruner’s first attempt to raise the competency for

execution claim in federal court again met with a motion

to dismiss by Arizona on the grounds that the claim was

not exhausted. JA 8. At that time, and until 1993, Arizona

statutes provided that only the warden of a correctional

facility could initiate judicial proceedings to determine a

prisoner’s mental fitness for execution. Ariz. Rev. Stat.

§§ 13-4021 et seq. (1978) (repealed 1993). The district court

stayed the federal proceedings, and Mr. Martinez-Vill-

areal’s counsel returned to state court to exhaust this

claim. Martinez-Villareal v. Lewis, 80 F.3d 1301, 1304-1305

(9th Cir.), cert. denied, 117 S.Ct. 588 (1996). The Arizona

courts refused to review the claim under the state’s post-

conviction rule, and the warden of the institution in

which Mr. Martinez-Villareal was confined refused to

initiate the statutory procedures despite Mr. Martinez-

Villareal’s history of mental illness in prison. JA 9.?

Thereafter, on March 26, 1993, counsel for Mr. Martinez-

Villareal filed an amended federal habeas petition raising,

2 Mr. Bruner petitioned for certiorari from Arizona's

refusal to entertain the competency to be executed claim.

Arizona urged this Court to deny review because, through his

federal habeas petition, “[Mr. Martinez-Villareal] has ready

recourse to a federal forum if reasonable efforts to exhaust his

state remedies do not result in an outcome which he feels is

satisfactory, so there is no chance of him being executed without

there being an opportunity for him to litigate his claim.” Martinez-

Villareal v. State of Arizona, No. 92-5373, Respondent's Brief in

Opposition to Petition for Writ of Certiorari, p. 15 (emphasis

added).

among other claims, his now exhausted but still unad-

judicated claim that he was mentally unfit for execution.

JA 112.

Counsel for Arizona asked the district court to dis-

miss the competence for execution claim without preju-

dice on the grounds that the issue was not ripe, arguing

that “[o]nly if a warrant for [Martinez-Villareal’s] execu-

tion issues, and if he still claims to be incompetent at that

time, will there be a jurisdictionally sufficient case or

controversy, and that will be the time to litigate the issue.”

JA 6 (emphasis added). On behalf of Mr. Martinez-Vill-

areal, Mr. Bruner responded that the state’s position was

inconsistent with its earlier claim that the competency

issue was unexhausted. JA 8-9. Arizona responded that

“to do a competency determination now would be futile,

because it would certainly have to be repeated when the

time for execution finally arrives.” JA 19.

The district court conducted a hearing upon Mr. Mar-

tinez-Villareal’s habeas petition, at which Mr. Bruner pre-

sented evidence of his client’s mental illness. The district

court found the evidence of mental incapacity persuasive,

and granted the writ as to the death sentence on the

ground that Mr. Martinez-Villareal’s trial counsel had

been ineffective in failing to discover and present such

evidence at his sentencing hearing. Martinez-Villareal v.

Lewis, CIV 86-296-TUC-RMB (D. Ariz. Oct. 21, 1994)

(unpublished); Martinez-Villareal v. Lewis, 80 F.3d at 1305.

Mr. Martinez-Villareal’s other federal claims were

rejected, except for the claim that he was mentally unfit

for execution. On that issue, the district court accepted

the position of the State of Arizona that the claim was not

ripe for review, stating that “[t]his claim is premature and

is denied without prejudice.” Martinez-Villareal v. Lewis,

CIV 86-296-TUC-RMB, supra, p. 19.

Arizona appealed the district court’s order granting

sentencing relief on the ineffectiveness of counsel claim.

The Ninth Circuit held on April 4, 1996, that the district

court should not have reached the merits of that claim

because it was procedurally defaulted when it was not

raised in the first state postconviction proceedings where

trial counsel continued to represent Mr. Martinez-

Villareal. With respect to the competency for execution

issue, the Court of Appeals stated:

[T]o eliminate any ambiguity, we reiterate that

the claim of Martinez-Villareal’s current incom-

petence was denied as premature by the district

court. That decision was not challenged on

appeal. Our instruction to enter judgment deny-

ing the petition is not intended to affect any

later litigation of that question.

Martinez-Villareal v. Lewis, 80 F.3d at 1309 n.1. Twenty

days later, President Clinton signed the Antiterrorism

and Effective Death Penalty Act of 1996 (“AEDPA”).

Upon denial of certiorari in December, 1996, counsel for

Arizona moved in the Arizona Supreme Court for a warrant

of execution. Counsel for Mr. Martinez-Villareal promptly

moved for a state competency hearing pursuant to the now

amended Arizona statute.* Thereafter, on February 28, 1997,

3 Arizona states that Mr. Martinez-Villareal’s counsel

“finally” moved for a competency hearing, Petitioners’ Brief, p.

3, as if counsel for Mr. Martinez-Villareal had not already

attempted over Arizona’s repeatedly successful objections to

present his claim to every administrative official and state and

federal court conceivably having jurisdiction over the matter.

the district court, in accordance with the mandate of the

Ninth Circuit, entered an order providing that “Petitioner

Ramon Martinez-Villareal’s Claim 4.16 regarding compe-

tency to be executed is DENIED WITHOUT PREJUDICE.”

JA 20.

On March 12, 1997, counsel for Mr. Martinez-Villareal

moved in the district court for reconsideration of the

February 28, 1997 dismissal order, expressing concern

that amended 28 U.S.C. § 2244 might be asserted by the

State as a bar to raising the competency claim in a future

federal habeas petition. Counsel noted that “in light of

the understanding of all parties that petitioner’s claim to

incompetence to be executed would await a future hear-

ing, it would be a cruel injustice to now find that peti-

tioner’s challenge was barred as a successive claim.” JA

24. Counsel also advised the district court that this Court

had recently granted certiorari in Lindh v. Murphy, 96 F.3d

856 (7th Cir. 1996), to consider the retroactivity principles

a>plicable to the AEDPA.‘ Id. Counsel for Arizona gave

the district court no indication that they intended to take

the position that a subsequent petition raising the compe-

tency claim would be barred under amended § 2244. The

district court denied reconsideration as unnecessary to

preserve the claim:

After considering Petitioner’s arguments, the

Court finds no reason to grant the requested

* This Court later decided Lindh v. Murphy, 117 S.Ct. 2059

(1997), holding that the AEDPA does not apply retroactively to

habeas cases filed before the effective date of the AEDPA, on the

same day that the court below filed its opinion allowing Mr.

Martinez-Villareal to proceed with his unadjudicated

competency claim. JA 179.

relief. That particular claim could not even be

construed as an unexhausted claim since it was

not ripe when it was presented. For this reason,

the Court dismissed it without prejudice. There-

fore, the Court has no intention of treating the

“incompetency to be executed” claim as a suc-

cessive petition.

JA 25-26. Mr. Martinez-Villareal filed a timely notice of

appeal from the district court’s refusal to reinstate the

habeas petition.

On the same day that counsel filed his motion to

reconsider, March 27, 1997, the Arizona Supreme Court

granted the State’s earlier motion and issued a warrant

ordering petitioner Stewart to execute Mr. Martinez-Vill-

areal on April 16, 1997 — a date later rescheduled for May

21, 1997. JA 27. Thereafter, proceedings were conducted

in the Arizona Superior Court on Mr. Martinez-Villareal’s

mental condition. After an expedited hearing in which

counsel for Mr. Martinez-Villareal were able to present

some, but not all, relevant evidence regarding Mr. Mar-

tinez-Villareal’s mental condition, Superior Court Judge

Boyd T. Johnson concluded that “credible testimony and

medical evidence was presented at the hearing herein

that [Martinez-Villareal] may suffer from a mental illness,

mental retardation and/or organic brain damage.” JA 47.

5 Judge Johnson rejected the request of Mr. Martinez-

Villareal’s counsel for an assessment of Mr. Martinez-Villareal’s

mental retardation and brain damage, which his counsel argued

was necessary to determine his mental capacity, e pecially with

respect to his ability to connect the punishment of death with

his conviction for murder. JA 33-34. See Ford v. Wainwright, 477

U.S. 399, 422 (1986) (Powell, J., concurring in part and

concurring in judgment).

However, Judge Johnson nevertheless found Mr. Mar-

tinez-Villareal competent to be executed under Arizona

law. JA 48.

Counsel for Mr. Martinez-Villareal sought review in

the Arizona Supreme Court challenging the fairness and

reliability of the competency proceedings on several

grounds, including the Superior Court's refusal to allow

testing to assess the degree of mental retardation and

brain damage, the constitutional inadequacy of Arizona's

competency to be executed standard, and the insuffi-

ciency of the evidence to establish Mr. Martinez-Vill-

areal’s ability to understand the connection between his

punishment of death and the crime for which he was

convicted. The Arizona Supreme Court denied review on

May 16, 1997, with two judges writing separately expres-

sing concern about the propriety of Mr. Martinez-Vill-

areal’s execution in light of the fact that “the evidence

makes it clear that [Martinez-Villareal] is mildly retarded

and seriously mentally ill.” JA 166.

Counsel for Mr. Martinez-Villareal moved to be

appointed in the district court and sought expert assis-

‘once in the preparation and presentation of the now-ripe

competency claim that remained unadjudicated at Ari-

zona’s request. JA 30-41. In response, Arizona for the first

time asserted amended § 2244(b) as a bar to Mr. Martinez-

Villareal’s competency claim. JA 66. The district court,

now believing that the AEDPA deprived it of jurisdiction

to act, entered an order stating:

Although this Court may not review the Peti-

tioner’s competency to be executed at this time,

the Court recalls that it had the opportunity to

observe the Petitioner in 1994. This Court can

only state that its observations of Petitioner in

1994 called into serious doubt [Martinez-Vill-

areal’s] competence.

JA 104.

Counsel for Mr. Martinez-Villareal moved in the

Court of Appeals for permission to proceed in the district

court on his competency claim, presenting alternative

grounds for permitting the district court to review the

claim. Counsel argued that Mr. Martinez-Villareal had

“not filed a second petition,” but that this was “his first

petition.” JA 126. Counsel also argued that given the

procedural artifice employed by the State to avoid any

federal litigation of the competency claim, equitable prin-

ciples required application of pre-AEDPA law to Mr. Mar-

tinez-Villareal’s competency claim, citing Burris v. Park,

95 F.3d 465, 469 (7th Cir. 1996) (finding under similar

circumstances an equitable exception to the 7th Circuit's

determination in Lindh v. Murphy, 96 F.3d 856 (7th Cir.

1996), reversed, 117 S.Ct. 2059 (1997), that the AEDPA is

retroactive). JA 120-25. Counsel for Mr. Martinez-Villareal

further argued that “[nJothing in the legislative history or

text of [§ 2244] indicates an intent to divest federal courts

of jurisdiction to enforce any right recognized under the

federal constitution.” JA 126. After this statutory con-

struction argument, counsel suggested that interpreting

§ 2244(b) to bar Mr. Martinez-Villareal’s competency

claim under the unusual circumstances of his case “raises

serious questions under the Suspension Clause.” JA 128.

On May 17, 1997, the Court of Appeals stayed Mr. Mar-

tinez-Villareal’s execution and ordered accelerated brief-

ing and oral argument, expressing preliminary concern

with the Suspension Clause issue. JA 175-77.

Following briefing and argument, the court below

based its decision on statutory grounds. It held that the

prohibition of second or successive habeas petitions

under § 2244 did not apply to Mr. Martinez-Villareal’s

competency claim. The court noted that Mr. Martinez-

Villareal had diligently raised this claim in his first peti-

tion, but that “it was the State of Arizona that had sug-

gested to the district court that Martinez-Villareal’s

competency claim was not ripe for adjudication.” JA 181

n.1. The claim remained unadjudicated because the dis-

trict court and Court of Appeals had concluded that it

was premature when it was raised in the first federal

habeas petition. Those courts had therefore rendered

judgments preserving Mr. Martinez-Villareal’s right to an

adjudication of the issue when it became timely. JA 181.

Although the court below expressed concern that

under the “narrow circumstances” of Mr. Martinez-

Villareal’s case, “the new statute poses a serious constitu-

tional problem,” it ruled:

We need not decide this difficult constitutional

question because we conclude that Martinez-

Villareal’s competency claim does not fall within

the rubric of section 2244.

JA 188. Referring to In re Turner, 101 F.3d 1323 (9th Cir.

1996), the court concluded that

just as we permit an exhausted petition to be

heard in federal court even after it had been

dismissed previously as unexhausted, so too

should we permit a ripe competency claim to be

heard in federal court even after it had been

dismissed previously as premature. Turner

reached this result to ensure that a petitioner’s

federal claims are accorded one hearing in fed-

eral court. We now extend Turner to competency

claims that previously were dismissed without

prejudice as premature in order to ensure that

such claims are likewise subject to federal

review.

JA 191.

Thus, contrary to Arizona’s assertion here, the sus-

pension of the writ issue did not control the ruling below.

Rather, the court focused on the statutory phrase “second

or successive” petition in § 2244(b), and framed a narrow

rule based upon the historical meaning of that concept:

Our holding is a narrow one that is inher-

ently limited by the unique nature of a compe-

tency claim. Indeed, we can think of no other

situation where a first petition meets Rose [v.

Lundy]’s exhaustion requirement but a claim

raised by that petition must be tabled as prema-

ture. We extend Turner to this circumstance, and

this circumstance only.

JA 193-94.

Since the competency claim was neither second or

successive, it was not subject to the restrictions on such

petitions imposed by § 2244(b). The Court of Appeals

therefore dismissed “as unnecessary” Mr. Martinez-Vill-

areal’s motion for leave to file a habeas petition in the

district court, and transferred the petition to the district

court “pursuant to 28 U.S.C. § 2241(b).” JA 194.

One member of the panel, Judge T. G. Nelson, wrote

separately, concurring in the result, and expressing his

view that “the 1996 Act unconstitutionally suspends the

writ of habeas corpus as to competency to be executed

claims.” JA 194. Thus, the Suspension Clause issue on

which Arizona seeks review in this Court was deemed

controlling by only one member of the three-judge panel

below.

SUMMARY OF ARGUMENT

The Court of Appeals below correctly interpreted the

restrictions imposed upon “second or successive” peti-

tions by amended § 2244(b) as inapplicable to Mr. Mar-

tinez-Villareal’s competency to be executed claim that

was diligently raised in his first petition and was not

decided on the merits but was dismissed without preju-

dice as premature. Arizona’s reading of this statute to bar

the second of any two petitions filed by the same state

prisoner — even where, as here, the later petition arises

out of state proceedings postdating the earlier one and

which the federal courts expressly refused to anticipate as

unripe at the time of the first petition - is unreasoned,

irrational, and inequitable. Neither Arizona nor any of its

amici offers any real justification for construing the stat-

ute in this perverse manner, and there is none.

The arbitrary and unjustified interpretation which

the State and its amici foist upon the statute is simply a

subterfuge to let them make the arguments about the

Suspension Clause which they are manifestly eager to

press upon this Court although the present case provides

no colorable occasion for adjudicating any Suspension

Clause issue. This Court should decline the gambit, fol-

low its usual, sensible rule against deciding serious con-

stitutional questions needlessly, and give a sensible

construction to the “second or successive” language of

amended § 2244(b), as did the court below. Such a con-

struction will, quite properly, postpone consideration of

Suspension Clause issues until some case genuinely puts

them into controversy.

Compelling reasons also exist for this Court to

decline jurisdiction over this case. Arizona concedes that

this Court would have no jurisdiction to review the lower

court’s ruling if the State had prevailed, see 28 U.S.C.

§ 2244(b)(3)(E), but contends that this Court should exert

jurisdiction to review the ruling because Mr. Martinez-

Villareal prevailed. The statute and reason stand solidly

against such a result.

ARGUMENT I

THE COURT BELOW PROPERLY HELD THAT A PETI-

TION CONTAINING MR. MARTINEZ-VILLAREAL’S

COMPETENCY CLAIM, WHICH HAD BEEN PRE-

SENTED IN HIS FIRST PETITION BUT DISMISSED

WITHOUT PREJUDICE AS PREMATURE, IS NOT A

“SECOND OR SUCCESSIVE” CLAIM UNDER

§ 2244(b).

A. The phrase “second or successive” used in

§ 2244(b) demands construction and cannot

have the absurd meaning Arizona claims is

“plain”.

Arizona and its amici go to great lengths to construct

a Suspension Clause issue where none exists.© The most

6 In the court below, Arizona claimed that there was no

Suspension Clause issue because of this Court’s original

conspicuous thing about all of their briefs is the absence

of a single syllable explaining why the language of

amended § 2244(b), “second or successive habeas corpus

application,” should be construed as applying to Mr.

Martinez-Villareal’s case and thereby raising the Suspen-

sion Clause issues that they argue elaborately for

upwards of 70 pages.

Arizona begs the whole question of statutory con-

struction and vaults into constitutional orbit by declaring

that “the plain meaning of § 2244(b) as amended

requires . . . [Mr. Martinez-Villareal’s] new petition to be

treated as successive,” Petitioners’ Brief, p. 12, and that

the Ninth Circuit’s “reconstruction of the statute,” id., p.

10, can be justified only by dragging the Suspension

Clause into the case. Amicus Criminal Justice Legal Foun-

dation (“CJLF”) does the same thing. CJLF Brief, p. 7

(“The relevant statutory language in the present case is

unambiguous.” .. . “The Court of Appeals ignored the

plain language of § 2244(b).”). Amici States similarly

assume, with no explanation, that this is a “second”

application case calling for radical Suspension Clause

analysis. But the idea that Mr. Martinez-Villareal’s pre-

sent habeas application is a “second” one, or that the

language “second or successive” in amended § 2244(b)

has a plain meaning which is found by adding one plus

one and making two, is either very naive or altogether

disingenuous.

jurisdiction. In its attempt to concoct a vehicle for its novel and

complex Suspension Clause theory, Arizona has now

admittedly reversed its position. Petitioners’ Brief, p. 13 n.1.

To see why, it is sufficient to observe that the same

language, “claim presented in a second or successive

habeas corpus petition” is used both to prohibit claims

“presented in a prior application” by amended

§ 2244(b)(1) and to restrict claims “not presented in a

prior application” by amended § 2244(b)(2). So, consider

the commonplace situation of an individual who is con-

victed of a crime in state court, successfully challenges

that conviction in a federal habeas corpus proceeding, is

retried and reconvicted for the same crime, and files a

new — and numerically “second” — federal habeas corpus

application challenging this new conviction. Or consider

the situation of an individual who is convicted in state

court of a first criminal act, X, challenges that conviction

in an unsuccessful federal habeas corpus petition, serves

his or her time, commits a second crime after being

released, is convicted of this new crime, Y, and files a

new -— i.e.. numerically “second” — federal habeas corpus

application challenging the conviction for Y. Are either of

these cases of a “second or successive habeas corpus

application” within the compass of § 2244? Whatever the

answer to this question (to which we will return in a

moment), it can hardly be derived from the “plain mean-

ing” of § 2244(b) or one-plus-one mathematics. Nor does

any supposed “plain meaning” of “second” speak “unam-

biguously” to such obvious cases as those of a prisoner

who first files an unsuccessful federal habeas corpus

petition challenging his state conviction for constitutional

trial error and later files another federal habeas corpus

petition challenging the constitutionality of a revocation

of parole, see, e.g., Morrissey v. Brewer, 408 U.S. 471 (1972)

- or of an arbitrary denial of a state-created right to

“good time” credit - on the sentence imposed upon the

original state-court conviction. See, e.g., Lynce v. Mathis,

117 S.Ct. 891 (1997).

To decide each of these cases, a court must do exactly

what the Court of Appeals below did: it must construe

the statutory language “second or successive habeas

corpus application” in a way that makes sense, consider-

ing the statutory wording, structure, and purpose -

together, of course, with principles such as the canon

preferring constructions that avoid raising grave consti-

tutional questions’; it cannot simply incant “two applica-

tions by the same petitioner means the numerically

second one is always out of court.” And, a moment's

consideration of that unavoidable question of statutory

construction will reveal, for example, that “second”

applications are routinely entertained where a defendant

challenges multiple judgments of conviction or sentence,®

? Arizona's brief seems to suggest that, in order to bring the

canon into play, a court must first decide the constitutional

question on the merits and then construe the statute to avoid

reaching whatever result it has held unconstitutional.

Petitioners’ Brief, pp. 18-19. As the Court has said time and

again, however, the canon cannot seriously “ ‘be considered as

meaning that our duty is to first decide that a statute is

unconstitutional and then proceed to hold that such a ruling

was unnecessary. ...°” United States v. CIO, 335 U.S. 106, 121

n.20 (1948), quoting United States v. Delaware & Hudson Co., 213

U.S. 366, 407-408 (1909). See also, e.g., Blodgett v. Holden, 275 U.S.

148, 148 (1927); United States v. Jin Fuey Moi, 241 U.S. 394, 401

(1916); United States v. X-Citement Video, Inc., 513 U.S. 64, 78

(1994).

8 See, e.g., United States v. Scott, 124 F.3d 1328 (10th Cir.

1997) (on first § 2255 petition, court granted a new sentencing

hearing and appeal; subsequent § 2255 petition challenging

or where the validity of a conviction and sentence has

been upheld but, as in Morrissey v. Brewer, supra, a pris-

oner’s parole is later denied or revoked in violation of the

Constitution.? The “second” application challenging the

new conviction, sentencing or parole revocation is not

barred by § 2244(b) (or by the prior abuse of the writ

doctrine, as the case may be) because the subject matter

of the petition itself - the new conviction, sentence or

parole violation —- had not yet occurred and could not

possibly have been challenged at the time of the earlier

petition. Similarly, it would be absurd to deny a pris-

oner’s “second” habeas petition in a case such as Weaver

v. Graham, 450 U.S. 24 (1981), involving an ex post facto

change in a prisoner’s eligibility for release, because he

effectiveness of trial and appellate counsel in those new

proceedings was not a second or successive petition within

§ 2244); Palmer v. Clarke, 961 F.2d 771, 774 (8th Cir. 1992) (second

§ 2254 petition challenging third conviction and resulting

sentence that had not yet occurred at time first petition was filed

was proper); Richmond v. Ricketts, 774 F.2d 957, 960 (1985)

(second § 2254 petition attacking constitutionality of

resentencing that had not yet occurred at time first § 2254

petition was filed was proper).

9 See, e.g., Chambers v. United States, 106 F.3d 472 (2nd Cir.

1997) (§ 2255 petition asserting challenge to conviction is not

second or successive petition within § 2244 where earlier

petition challenged Parole Commission’s computation of

sentence); see also Thompson v. White, 661 F.2d 103 (8th Cir. 1981)

(prisoner’s first habeas petition challenging conviction heard on

the merits), Thompson v. Armontrout, 808 F.2d 28 (8th Cir. 1986)

(same prisoner’s second habeas petition challenging vindictive

denial of parole granted), Thompson v. Armontrout, 926 F.2d 396

(8th Cir. 1991) (granting same prisoner’s third habeas petition

challenging parole board’s subsequent refusal to grant credit for

time served).

had filed an earlier application — before the release-eligi-

bility — alleging constitutional error in his trial and sen-

tencing.

Mr. Martinez-Villareal’s petition is on the same foot-

ing. He raised his competency to be executed claim at the

first opportunity he had: in the first habeas petition.

There Arizona insisted and the federal courts held that

the claim was premature and dismissed it without preju-

dice because the event that made the claim adjudicable,

the issuance of an execution warrant, had not yet

occurred.!° This is no different from the situation of a

“second” petition by the same prisoner raising challenges

to new convictions or sentences, parole revocation, or

denial of good time credits, which cannot be adjudicated

until the occurrence of the later event that gives rise to

the challenge. At the time Mr. Martinez-Villareal’s coun-

sel requested permission from the court below to file a

second petition the subject matter of that petition had

occurred: on the State’s motion, the Arizona Supreme

Court had issued a warrant to execute Mr. Martinez-Vill-

areal while he is not mentally fit. JA 27, 109.1! Just as

10 This was the very point Arizona itself made in its motion

for summary judgment, requesting that the competency to be

executed claim be dismissed as unripe because “[o]nly if a

warrant for [Mr. Martinez-Villareal’s] execution issues . . . will

there be a jurisdictionally sufficient case or controversy ...” JA

1! The habeas petition that the decision below permits Mr.

Martinez-Villareal to file contains no challenge to the validity of

his trial or sentence. It is concerned solely with the state

proceedings that have taken place since his earlier federal

habeas petition - the warrant of execution, issued by the

Arizona Supreme Court on the State’s motion, that ripened his

petitioners in cases such as Weaver and Morrissey can use

a “second” petition to challenge administrative actions

subsequent to their convictions that affect not the exis-

tence but the execution of their sentences, so too, can Mr.

Martinez-Villareal now challenge his competency to be

executed. !?

The court below also analogized Mr. Martinez-

Villareal’s situation to cases in which previously “mixed”

petitions, see Rose v. Lundy, 455 U.S. 509, 520 (1982), were

refiled after exhaustion of state remedies. JA 188-89. See

Reeves v. Little, 120 F.3d 1136, 1139 (10th Cir. 1997) (second

petition raising claims following exhaustion is not “sec-

ond or successive” within § 2244(b) where prior petition

alleging state court delay in processing direct appeal was

dismissed without prejudice); In re Gasery, 116 F.3d 1051,

1052 (Sth Cir. 1997) (second petition is not “second or

competency to be executed claim, and the Arizona superior

court order finding him competent for execution - which

authorize the imminent executive action of putting him to death

while he is incompetent. JA 27; see McIntosh v. United States

Parole Commission, 115 F.3d 809, 811 (10th Cir. 1997) (“Petitions

under § 2241 . . . attack the execution of a sentence, in contrast to

§ 2254 habeas and § 2255 proceedings, which . . . collaterally

attack the validity of a conviction and sentence [citations

mitted] . . . ”; section 2241 attack “may challenge some matters

that occur at prison, such as deprivation of good-time credits

and other prison disciplinary matters . . . ”) (emphasis added).

12 Mr. Martinez-Villareal’s application for the writ alleges

not only that he is incompetent to be executed but also that the

state court order finding him competent for execution was

unconstitutional because of procedural defects which resulted

in an unreliable determination of the issue. See Ford v.

Wainwright, 477 U.S. at 423-24 (Powell, J., concurring in part and

concurring in judgment).

successive” under § 2244(b) where prior petition was

dismissed without prejudice to exhaust state remedies);

Dickinson v. Maine, 101 F.3d 791 (1st Cir. 1996) (same). In

those cases, like this one, the statutory language “second

or successive . . . application” requires intelligent con-

struction, not the wilful disregard with which Arizona

and its amici would treat it under guise of a “plain mean-

ing” that vanishes as soon as real cases are considered.

The fact is that “second and successive” has no

“plain meaning” that can be read on an abacus, without

reference to its statutory context. The language did not

originate with the AEDPA. It was a familiar feature of the

doctrine of abuse of the writ before 1996. See, e.g. Barefoot

v. Estelle, 463 U.S. 880, 895 (1983) (“[s]econd and succes-

sive federal habeas petitions present a different issue”

because of possible manipulation); McCleskey v. Zant, 499

U.S. 467, 470 (1991) (“[t]he doctrine of abuse of the writ

defines the circumstances in which federal courts decline

to entertain a claim presented for the first time in a

second or subsequent petition for a writ of habeas

corpus”); Rule 9(b) of the Rules Governing Section 2254

Cases in the United States District Courts. The courts did

not imagine that it was susceptible of merely mathemati-

cal computation then. See, e.g., Lonchar v. Thomas, 517 U.S.

314 (1996) (treating a federal habeas petition filed by an

inmate as a first petition despite the two earlier next-

friend federal habeas petitions reviewed in Lonchar v.

Thomas, 58 F.3d 588 (11th Cir. 1995)); pre-AEDPA cases

cited in notes 8 and 9, supra. Congress could not have

imagined that it meant a numerically “second habeas

application by the same person challenging any state

court judgment or executive action whatsoever” rather

than a “second application by the same person challeng-

ing the same state court judgment” when it adopted the

language in the AEDPA’s amendments to § 2244(b). Nor

could Congress have imagined any reasonable construc-

tion of the language “claim presented in a second or

successive habeas corpus application . . . that was pre-

sented in a prior application” (amended § 2244(b)(1)) and

“claim presented in a second or successive habeas corpus

application . . . that was not presented in a prior applica-

tion” (amended § 2244(b)(2)) which includes claims pre-

sented in the only petition in which a federal court is able

to hear them at all.

B. Arizona’s brief omits the fact that counsel's

attempts to assert Mr. Martinez-Villareal’s com-

petency claim at the earliest possible time were

frustrated by the State’s successful efforts to

avoid adjudication.

Arizona’s position is based entirely upon the false

premise that “Martinez-Villareal undeniably has already

had one fully-litigated habeas petition . . . ” Petitioners’

Brief, p. 12. (emphasis added). To the contrary, in

response to Mr. Martinez-Villareal’s earlier petition, the

State successfully urged the courts not even to begin to

litigate the claim which is now in issue. JA 112-113.

The procedural history of Mr. Martinez-Villareal’s

competency to be executed claim recounted at pages 4-12

above illustrates why the Court of Appeals correctly

found that this claim is not encompassed in Congress's

prohibition of “second or successive” petitions. After Ari-

zona had convinced the district court and Court of

Appeals that the claim was too early to decide in the first

habeas application because an execution warrant had not

yet issued, Arizona turned around and argued to these

same courts that the claim was too late even though Mr.

Martinez-Villareal’s counsel at all times acted diligently

and raised it at the first opportunity, and Mr. Martinez-

Villareal was now under imminent threat of execution.

The district court, after initially stating that it “ha[d] no

intention of treating the ‘incompetency to be executed’

claim as a successive petition” under the AEDPA amend-

ments to § 2244, reversed its position at Arizona’s insis-

tence, although apparently with some reluctance. JA

101-105.

The Court of Appeals, however, disagreed with the

district court that the AEDPA should be construed to

permit state officials to assert that a habeas petition is a

“second” application barred by § 2244(b) when it is predi-

cated solely on a claim which those state officials have

successfully delayed by arguing that the claim was pre-

mature at the time of an earlier petition and had to be

postponed in order to mature into a “jurisdictionally

sufficient case.”'* This construction took Arizona’s

13 Because of this unique history, Arizona could and should

be held to have waived the right to assert a “second or

successive application” defense against Mr. Martinez-Villareal’s

competency claim, even if that label could properly be attached

to it. Certainly, the defense would have been held waived if the

er.actment of the AEDPA had not intervened; when Arizona

asked that consideration of the competence to be executed issue

be postponed, it knew it was giving up any argument that a later

petition raising that issue should be deemed “second or

successive” because that same phrase appeared in Rule 9(b).

Section 2244(b) of the AEDPA could vitiate that waiver only if

earlier successful argument and the earlier explicit

holdings of the federal district and circuit courts based

the “second or successive application” defense it creates were

jurisdictional and thus nonwaivable. Contrary to the position

taken by the Amici States (p. 5-10), it is not.

As this Court said in Felker v. Turpin, 116 S.Ct. 2333, 2339

(1996), and as Arizona itself acknowledges, by its terms

§ 2254(b) places “restrictions on successive petitions,”

Petitioners’ Brief, p. 16, rather than withdrawing jurisdiction to

consider them. Its subsections do not purport to withdraw the

judicial power to hear cases, but instead require that certain

“claim[s] . . . shall be dismissed.” 28 U.S.C. § 2254(b)(1), (2) and

(4). That language resembles the terms of the other most

common habeas defenses, nonexhaustion and procedural

default: the exhaustion statute, 28 U.S.C. § 2254(b), says a

noncomplying “application . . . shall not be granted”; the

procedural default rule established by this Court’s cases “bar{(s]

consideration . . . of federal claims that have been defaulted,”

Trest v. Cain, 117 S.Ct. 1517, 1522 (1997). This Court has held

both of these defenses to be nonjurisdictional and thus

waivable. See Granberry v. Greer, 481 U.S. 129 (1987)

(nonexhaustion); Trest v. Cain, supra (procedural default).

Pre-AEDPA law similarly recognized that the “second or

successive” petition defense could be waived. Sanders v. United

States, 373 U.S. 1, 11 (1963). The AEDPA’s restrictions on

successive petitions are “well within the compass” of the pre-

AEDPA law and thus “ ‘informed and controlled by historical

usage, statutory developments, and judicial decisions.’ ” Felker

v. Turpin, 116 S.Ct. at 2341, quoting McCleskey v. Zant, 499 U.S.

467, 489 (1991). Recognition of the similar historical context in

which the exhaustion rule was codified was one of the factors

that led the Court to hold that “though to be strictly enforced,

[it] is not jurisdictional.” Strickland v. Washington, 466 U.S. 668,

684 (1984), citing Rose v. Lundy, 455 U.S. at 515-520. If the issue

were reached - which for the reasons explained above we

submit it need not be — the same should be held with respect to

the similarly-worded habeas defense at issue here.

upon that argument as its premise, and accordingly ruled

that:

Under our holding, a competency claim must be

raised in a first habeas petition, whereupon it

also must be dismissed as premature due to the

automatic stay that issues when a first petition

is filed. Once the state issues a second warrant

of execution and the state court considers the

now-ripe competency claim, a federal court may

hear that claim - and only that claim — because

it was originally dismissed as premature and

therefore falls outside of the rubric of “second

or successive” petitions.

JA 193.

As we shall see in the next section, this construction

is most consistent with Congress’s chosen statutory lan-

guage and the statutory structure and history. It avoids

difficult questions of the statute’s constitutionality under

the Suspension Clause. And it avoids the manifest absur-

dity and injustice of construing “second” so that a death-

sentenced inmate with a serious claim of mental incom-

petence to be executed is told first that he is too early and

“second” that he is too late.

C. The court below properly concluded that Mr.

Martinez-Villareal’s competency claim is not a

“second or successive” application for habeas

corpus.

This case involves an unusual circumstance in which

a constitutional claim was diligently presented in an ear-

lier petition for habeas corpus, but remained unadjudi-

cated even though it was not subject to any defense of

procedural default or failure to exhaust state remedies. Its

deferral was the result of the State’s successful efforts to

delay adjudication of the competency claim, arguing that

“[o}nly if a warrant [of] execution issues . . . will there be

a jurisdictionally sufficient case or controversy, and that

will be the time to litigate the issue.” JA 6. Thus, the court

below was faced with a potentially valid constitutional

claim, supported by credible evidence, but which

remained unheard even though Mr. Martinez-Villareal’s

counsel had taken every step possible to assert and pre-

serve this claim in state and federal court.

The court below sensibly interpreted the words “sec-

ond or successive” in 28 U.S.C. § 2244(b) as inapplicable

to a later petition presenting only such a claim. Its inter-

pretation is solidly supported by the statutory wording,

structure, history, and purpose. By no reasonable con-

struction can the term “second or successive habeas

corpus application” in its statutory context be extended

to embrace and extinguish Mr. Martinez-Villareal’s claim

of incompetence to be executed.

14 These circumstances distinguish In re Medina, 109 F.3d

1556 (11th Cir. 1996), and In re Davis, 121 F.3d 952 (Sth Cir. 1997).

Unlike the petitioners in those cases, Mr. Martinez-Villareal

promptly filed his claim of incompetence to be executed at the

earliest possible opportunity, in an initial federal habeas corpus

petition where it was dismissed without prejudice. In re Davis,

121 F.3d at 955. Unlike Medina and Davis, Mr. Martinez-

Villareal thus gave the federal courts (and Arizona) every timely

and reasonable opportunity to join his attacks on his conviction

and sentence with his attack on Arizona’s administrative

decision to proceed with his execution when he was mentally

incompetent.

The court belc+vs properly began with the two basic

ingredients of sound statutory construction: the text of

the statute and a preference for reading it reasonably, so

as not to “produce results that were not merely odd, but

positively absurd.” United States v. X-Citement Video, Inc.,

513 U.S. at 69. Although, as we have already seen, the

phrase “second or successive” in § 2244(b) has no plain

meaning in the sense of an unambiguous, self-evident

application to every situation in which two or more fed-

eral habeas corpus petitions are filed, it does have a

recognizable meaning that excludes the present case.

At the least, to constitute a “second” federal habeas

petition on behalf of a person imprisoned under a state

court judgment, there must be a second petition on the

part of the same person attacking the same judgment. This

much is implicit in the statutory text now.

e Subsections 2244(b)(1) and (2) as revised by

the AEDPA both refer in terms to cognate § 2254

of title 28: The exact, identical language of both

subsections is “second or successive habeas

corpus application under section 2254.” See

Appendix A to Petitioners’ Brief, pp. App. 1-2

(emphasis added).

e When enacting these revisions, Congress car-

ried forward, unamended, the longstanding lan-

guage of 28 U.S.C. § 2254(a) that states what a

“habeas corpus application under section 2254”

is: namely, “an application for a writ of habeas

corpus in behalf of a person in custody pursuant

to the judgment.of a State court.” Id., at p. App. 5

(emphasis added).

e The language of the preface to subsection

2254(b)(1) — only slightly amended by the

AEDPA - and that of the almost totally rewrit-

ten subsections 2254(d) and 2254(e)(1) repeats

this formulation virtually verbatim: They all talk

about an “application for a writ of habeas

corpus on behalf of [or by] a person in custody

pursuant to the judgment of a State court.” Id. at

App. 5-6 (emphasis added).

e Logically, a “second” anything becomes iden-

tified as such only by sharing the defining char-

acteristics of the first; and there is no suggestion

in § 2254 that the “judgment of the State court”

which is the subject of the kind of “habeas

corpus application” it defines is less essential to

the definition than the “person” filing the appli-

cation.

So if, as Lonchar teaches, a petition by a different

person is not a “second or successive habeas corpus

application under section 2254,” neither is a petition occa-

sioned by a different state court judgment.

And this, of course, is what the courts have held,

both before and after the amendment of § 2244(b) by the

AEDPA. See notes 8 and 9, supra. Federal habeas petitions

raising claims of incompetence to be executed are not

addressed to the state court judgment of conviction and

sentence but (depending on the local state procedure) to a

state court determination of present competency or a

state executive decision to go forward with the execution

of an incompetent. See notes 11 and 12, supra. Hence it is

not surprising that claims of incompetence to be executed

have almost always been entertained in a federal petition

filed after the denial of an earlier petition challenging the

underlying conviction and sentence - as in Alvin Bernard

Ford’s own case, Ford v. Wainwright, 477 U.S. 399 (1986).'5

But if Arizona’s arguments below and to this Court are

correct, the AEDPA’s amendments to § 2244(b) changed

all this without changing - and indeed while still explic-

itly referring to — statutory language (“application . . . in

behalf of a person in custody pursuant to the judgment of

a State court,” 28 U.S.C. § 2254(a)) that answers the

question “ ‘second’ what?” in a manner that makes the

instant petition Mr. Martinez-Villareal’s “first.” And

those amendments changed prior practice based on

words that remain in the statute

e not in the service of “finality of determina-

tion” — the title of § 2244(b) - since there has

never been and never can be any “determina-

tion” relating to the subject matter of the later

habeas corpus application, the applicant’s com-

petence to undergo execution, and

e not to impose “on successive petitions .. . a

modified res judicata rule, a restraint on

... ‘abuse of the writ’” - the aim of amended

§ 2244(b) as this Court correctly construed the

amendment in Felker v. Turpin, 116 S.Ct. at 2340"

1S See Barnard v. Collins, 13 F.3d 871, 878 (Sth Cir. 1994),

quoted by the court below at JA 193 n.7: “[O]ur research

indicates no reported decision in which a federal circuit court or

the Supreme Court has denied relief of a petitioner's

competency-to-be-executed claim on grounds of abuse of the

writ.”

the statutory writ of habeas corpus, and to address the acute

problems of unnecessary delay and abuse in capital cases.” Joint

Explanatory Statement of the Committee of Conference, H.R.

- since there has never been and never can be

any opportunity to adjudicate a claim of incom-

petence to be executed,!” and since an applicant

in Mr. Martinez-Villareal’s circumstances has

never done anything constituting abuse of the

writ and never can do anything differently than

he has done to present and preserve his claim of

incompetence; and

¢ not to limit state prisoners to “one bite at the

apple” — as Arizona itself describes the “intent”

of the AEDPA, Petitioners’ Brief, p. 1218 — since

an applicant in Mr. Martinez-Villareal’s circum-

stances can never get even “one bite” at a claim

of incompetence to be executed,

but because claims of incompetence to be executed are

inherently incapable of being presented in any federal

habeas corpus petition that is not either too early or too

Conf. Rep. No. 518, 104th Cong., 2d Sess. 111 (1996), reprinted in

1996 U.S.C. Cong. & Admin. N. 924, 244; see also 141 Cong. Rec.

S7479-03 (daily ed. May 25, 1995) (statement of Sen. Hatch)

(AEDPA prevents delay “while still preserving and protecting

the constitutional rights of those who are accused”).

17 A“ ‘full and fair opportunity to litigate’ the case . . . is a

prerequisite to application of principles of res judicata. Montana

v. United States, 440 U.S. 147, 153 (1979); accord, Blonder-Tongue

Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313,

329 (1971).” Poyner v. Murray, 508 U.S. 931, 933 (1993) (opinion

of Souter, J., joined by Blackmun, J. and Stevens, J., respecting

the denial of certiorari).

18 See also 141 Cong Rec. $7663 (daily ed. June 5, 1995)

(statement of Sen. Feinstein): “[T]his bill provides habeas

petitioners with one bite of the apple. It assures that no one

convicted of a capital crime will be barred from seeking habeas

relief in Federal Court.”

late. Nothing in the AEDPA remotely suggests that Con-

gress meant the term “second” to categorically preclude

the presentation of a previously recognized substantive

federal constitutional claim in a first or any possible

habeas corpus application, as Arizona’s interpretation of

the statute would do.

Further, to constitute a “second” federal habeas peti-

tion on behalf of a person imprisoned under a state court

judgment, there must be a “first” petition in which the

challenge to the judgment could possibly have been pre-

sented on the merits. The lower courts have held that the

dismissal of an earlier petition without prejudice for rea-

sons such as nonexhaustion does not operate to make a

later petition a “second . . . application” under amended

§ 2244. Camarano v. Irvin, 98 F.3d 44 (2d Cir. 1996); In re

Turner, supra; and see Christy v. Horn 115 F.3d 201 (3d Cir.

1997), all cited by the court below at JA 189; Dickinson v.

Maine, 101 F.3d 791 (1st Cir. 1996); In re Gasery, 116 F.3d

1051 (5th Cir. 1997). But whether or not that result should

obtain in a case in which the reason for the dismissal of

the prisoner’s earlier petition was a matter within his or

her control, it is the only intelligent construction of

amended § 2244(b) in a case where the earlier petition

was dismissed without a decision on the merits and

without any fault or choice of the petitioner. Cf. Lonchar v.

Thomas, supra. A fortiori, it is the only tenable result in a

case like the present one, where Mr. Martinez-Villareal

did everything possible to present his claim of incompe-

tence in his initial federal petition and was denied the

opportunity to have it heard on the merits because the

State successfully contended that the claim was not yet

ripe and should be deferred for consideration in a subse-

quent proceeding. Cf. Burris v. Park, 95 F.3d 465 (7th Cir.

1996).

ARGUMENT II.

THE COURT BELOW MADE NO MISTAKE IN CON-

CLUDING THAT ONE CONSIDERATION FAVORING

ITS CONSTRUCTION OF § 2244(b) WAS THE FACT

THAT ARIZONA’S PROPOSED CONSTRUCTION OF

THE STATUTE WOULD RAISE SERIOUS SUSPEN-

SION CLAUSE ISSUES.

As we have seen, the decision of the court below

turns on a reasonable construction of § 2244(b), indepen-

dent of the Suspension Clause. But the court was also

plainly right to take account of the “one doctrine more

deeply rooted than any other in the process of constitu-

tional adjudication . . . that we ought not to pass on

questions of constitutionality . . . unless such adjudication

is unavoidable.” Specter Motor Service v. McLaughlin, 323

U.S. 101, 105 (1944).

This Court has largely succeeded in avoiding the

necessity for interpreting the Suspension Clause during

more than 200 years, and the provision’s interpretation

poses a host of complicated and debatable issues. See, e.g.,

Felker v. Turpin, 116 S.Ct. at 2340; Lonchar v. Thomas, 116

S.Ct. at 1298; James S. Liebman, Apocalypse Next Time?:

The Anachronistic Attack On Habeas Corpus/Direct Review

Parity, 92 Cotum.L.Rev. 1997, 2041-2072 (1992). The wis-

dom of the court below in steering wide of this constitu-

tional terra incognita is demonstrated by the briefs of

Arizona and its amici in this Court, the bulk of which are

spent trying to answer difficult, abstract constitutional

questions not presented by the case.'? And even these 70

pages of elaborate briefing manage to ignore or beg major

questions that would have to be faced if the Court under-

took to address the Suspension Clause issues which

would arise on the hypothesis that Congress really did

extinguish a forum for Mr. Martinez-Villareal’s Ford v.

Wainwright claim of incompetence to be executed. Ari-

zona and its amici, for example, treat this subject as

though it had to do entirely with federal habeas corpus in

its most usual Twentieth Century office as a postconvic-

tion remedy, although, historically and analytically, a

Ford claim has considerably less in common with post-

conviction review than with the older Anglo-American

usages of the writ to remedy executive illegalities depen-

dent on custody.

However this may be, the more fundamental point

disregarded by Arizona and its amici is that their ranging

constitutional arguments simply have no place in this

case unless the Court is first compelled to conclude that

the AEDPA cannot be read to avoid reaching constitu-

tional issues of this magnitude. United States v. X-Citement

Video, Inc., 513 U.S. at 69. This does not mean, as Arizona

19 The CJLF brief enlarges on yet another theory not

presented here: that a competency to be executed claim does not

fall within the definition of “custody” for habeas relief.

Unraised by any party to this case anywhere, at any time, that

question, too, presents daunting issues that need not, and

should not, be resolved now. It is enough to say that CJLF’s

argument would have to swim upstream. See Ford v. Wainwright,

477 U.S. at 427 (Powell, J., concurring in part and concurring in

the judgment).

affects to believe, that the proponent of a particular statu-

tory constrzction must first establish, or that this Court

must first decide, whether any other construction of

§ 2244(b) would violate the Constitution. It means just the

opposite: that the “Court will not pass on the constitu-

tionality of an Act of Congress if a construction of the Act

is fairly possible, or some other nonconstitutional ground

fairly available, by which the constitutional question can

be avoided.” United States v. Locke, 471 U.S. 84, 92 (1985).

See note 7, supra. The court below correctly determined

that the constitutional question could be avoided, and

correctly avoided it.2° That approach to the case was

consistent with this Court’s approach to previous cases in

which Suspension Clause complexities lurked but were

avoidable by reasonable statutory construction. Sanders v.

United States, 373 U.S. 1, 11-12 (1963); United States v.

Hayman, 342 U.S. 205, 223 (1952).

In addition to Suspension Clause concerns, the court

below was concerned with.the unusual, if not unprece-

dented, situation in which a habeas petitioner, whose

conduct with respect to his competency claim was

beyond reproach, could nevertheless be denied any

opportunity for federal consideration of the claim if the

AEDPA were applied and construed so as to upset the

20 Arizona also argues now - although it argued the exact

opposite in the court below - that its interpretation of the

§ 2244(b) restrictions applies as well to this Court's original

habeas jurisdiction. Petitioners’ Brief, pp. 12-17. The State’s

manipulation of this unpresented issue is designed to undergird

its next argument: that the suppositious § 2244(b) restrictions do

not violate the Suspension Clause. As we have shown, that

issue, too, is not presented.

expectations that underlay and resulted from the dis-

missal of his pre-AEDPA habeas petition without preju-

dice. Counsel for Mr. Martinez-Villareal particularly

emphasized this concern. JA 124-125. In the wake of Lindh

v. Murphy, 117 S.Ct. 2059 (1997), it might have taken the

form of the retroactivity analysis suggested by this

Court’s observation in Lindh that, while the AEDPA gen-

erally applies to habeas petitions filed after the Act's

effective date, the invocation of specific provisions of the

Act to defeat expectations settled by explicit court order

before its enactment “may well . . . [raise] difficult issues,

and it may be that application of Landgraf’s default rule

will be necessary to settle some of them,” id. at 2064.2!

However, the court below handed down its decision on

the same day that this Court delivered the Lindh opinion,

so it did not have that suggestion available. See note 4,

supra.

In sum, a whole host of challenging constitutional

questions could be injected into this case, and into cases

that come after it, if Arizona’s proposed construction of

§ 2244(b) were accepted. The court below wisely chose

not to reach and decide those issues, because Arizona’s

statutory argument was not sufficiently persuasive to

require it.

21 It might also have taken the form of holding that betrayal

of the prior assurances given to Mr. Martinez-Villareal and his

counsel by both the State and the courts would violate due

process. Cf. Raley v. Ohio, 360 U.S. 423 (1959).

ARGUMENT III.

CONGRESS HAS PLAINLY WITHDRAWN CER-

TIORARI JURISDICTION OVER ARIZONA'S PETI-

TION, AND THIS CASE PRESENTS NO EQUITABLE

BASIS FOR INVOKING THIS COURT’S POWER TO

ISSUE EXTRAORDINARY WRITS.

A. No Statutory Certiorari Jurisdiction Exists.

Arizona’s certiorari petition presents this Court with

a classic conundrum. On the one hand, it complains that

the AEDPA bars the ruling of the court below allowing

Mr. Martinez-Villareal to finally obtain an adjudication of

his competency claim. If it is correct that § 2244(b)

applies, then it is saddled with § 2244(b)(3)(E), which,

unlike § 2244(b)(1), is very explicit. The statute states:

The grant or denial of an authorization by a

court of appeals to file a second or successive

application . . . shall not be appealable and shall not

be the subject of a petition for rehearing or for a writ

of certiorari.

28 U.S.C. § 2244(b)(3)(E) (emphasis added).

Section 2244(b)(3)(E) defeats Arizona’s attempted

resort to certiorari twice over. On the one hand, Arizona

argues that Mr. Martinez-Villareal’s present application

for habeas relief is a “second” application. The court

below has ruled that the district court should consider

this application. Arizona, therefore, is now asking this

Court to review the Court of Appeals’ grant of authoriza-

tion for Mr. Martinez-Villareal to file what Arizona con-

tends is a second application. The statute, however,

provides that the “grant . . . of an authorization by a court

of appeals to file a second . . . application” shall not be

reviewable.

Alternatively, looking at what Arizona asks this

Court to do (rather than from the perspective of what the

court below did), Arizona asks this Court to hold that the

court below should have denied Mr. Martinez-Villareal

authorization to file a second habeas application. The

“denial of an authorization” is then “the subject of” Ari-

zona’s certiorari petition. Petitions on that subject, how-

ever, are expressly prohibited by the statute.

These conclusions are supported by additional con-

siderations. First, had the court below ruled the way

Arizona wanted it to, that ruling (a denial of authoriza-

tion to file a second application) would plainly be cov-

ered by the statutory limitation and would not be subject

to this Court’s review. That was indeed exactly the situa-

tion in Felker v. Turpin, 116 S.Ct. at 2341, in which the

Court dismissed the petition for writ of certiorari “for

want of jurisdiction.” By using the words “grant or

denial,” the statutory provision demonstrates Congress's

intention that reviewability of a court of appeals’ gate-

keeper decision should not turn on which way the court

of appeals rules. That is, it is not only denials of authori-

zation (what Arizona sought) that are nonreviewable;

grants are also not reviewable. Arizona concedes that if it

had prevailed in the court below on the issue of Mr.

Martinez-Villareal’s authorization to file, that decision

would not be reviewable in this Court. Petitioners’ Brief,

p. 47. In view of Congress’s even-handed approach, it

makes no sense to say that cases are not reviewable when

the State prevails, but are reviewable when it does not.

Second, nonreviewability is supported by the evident

congressional purpose in banning this Court's interlocu-

tory review of gatekeeper decisions. Congress apparently

wanted to speed up final disposition of successor peti-

tions by having the court of appeals make a preliminary,

nonreviewable interlocutory decision whether such peti-

tions should be heard. If the court of appeals decides that

a successor petition should not be heard, that is the end

of it. If, on the other hand, it decides that a successor

petition should be heard, then there is to be no delay

caused by interlocutory review of that gatekeeper deci-

sion. The district court is to proceed to consider the

habeas petition without having to wait for possible filing

and disposition of a petition for certiorari by the State. If

the court of appeals’ gatekeeper decision was wrong, and

if it results in habeas relief actually being given, the

gatekeeper error can eventually be corrected by this

Court’s review of the ultimate habeas relief. Thus, this

Court retains the power to cure gatekeeper errors when

they actually lead to habeas relief while, at the same time,

the Court is not burdened by — and the Court's certiorari

jurisdiction does not serve to delay — proceedings in the

large number of cases in which the courts of appeals’

gatekeeper decision is correct. This result obtains even

where a court of appeals decides, as the court below did

here, that the § 2244(b) restrictions do not apply. Section

2244(b)(3)(E) “precludes . . . [this Court] from reviewing,

by appeal or petition for certiorari, a judgment on an

application for leave to file a second habeas petition in

district court ... ,” Felker v. Turpin, 116 S.Ct. at 2338-39;

and the decision below is “a judgment on an application

for leave to file a second habeas petition in district court.”

JA at 180.

Arizona’s attempt to sidestep the application of this

bar on the ground that Mr. Martinez-Villareal’s motion

was “dismissed” rather than “granted” or “denied” must

fail. Congress’s reasons for barring this Court's review of

gatekeeper decisions are no different when a court of

appeals holds that the § 2244(b) restrictions do not apply

(because the petition is not successive) than when it holds

that the standards do apply but the petitioner has met

them. In both cases, interlocutory review would be

equally burdensome and dilatory, and equally unnecess-

ary since this Court will always have the opportunity to

correct any gatekeeper errors if, and after, they result in

relief being granted.

B. No Compelling Reasons Exist For An Extraordi-

nary Writ.

The State’s attempts to invoke this Court’s power to

issue an extraordinary writ should also fail. There is

absolutely no cause for the Court to exercise its excep-

tional powers in this case.

Congress has precluded review of the courts of

appeals’ gatekeeper decision by certiorari. In the absence

of compelling reasons, it would inappropriately circum-

vent that limitation to issue an extraordinary writ. What

compelling reason does Arizona advance? It “desire(s]

the district court to be prohibited from entertaining Mar-

tinez-Villareal’s successive habeas petition.” Petitioners’

Brief, p. 48. This is exactly what Congress said this Court

should not do when a court of appeals has granted leave

to proceed. Arizona inflates its desire by puffing it up

with the rhetoric of “usurpation of judicial power.” Id.

This is the same hollow claim that underlies its efforts to

turn the Court of Appeals’ perfectly reasonable, unre-

markable statutory construction into an occasion for

unprecedented Suspension Clause adjudication.

Arizona never explains how it meets the first require-

ment of Supreme Court Rule 20, that the requested action

sought through an extraordinary writ “must be in aid of

this Court’s appellate jurisdiction.” Congress withdrew

the Court’s certiorari jurisdiction over gatekeeper deci-

sions in the manifest belief that interlocutory review

would not ordinarily be in aid of the Court's ultimate

appellate jurisdiction over a habeas case, once a final

judgment is rendered in the lower courts. Arizona does

not say why that jurisdiction is not adequate to protect its

interests.

Finally, Arizona’s conduct in the underlying litiga-

tion disentitles it to the equitable relief that it seeks. The

record reflects that counsel for Arizona is the person who

originally sought bifurcation of the issues presented in

Mr. Martinez-Villareal’s prior habeas petition. JA 4-6. It

was counsel for Arizona who persuaded the district court

to delay ruling on Mr. Martinez-Villareal’s competence

until a later stage of litigation. In asking for an extraordi-

nary writ, counsel for Arizona now seeks to enjoin the

courts below from implementing the relief which Arizona

itself requested and obtained - that “if a warrant for

[Martinez-Villareal’s] execution issues, . . . that will be the

time to litigate the issue.” JA 6. Since Arizona is entirely

responsible for the procedural posture of the competency

claim, it is not entitled to equitable relief from its own

doings. See United States ex rel. Greathouse v. Dern, 289 U.S.

352, 359 (1933) (“Although the remedy by mandamus is at

law, its allowance is controlled by equitable principles”).

CONCLUSION

For the foregoing reasons, this Court should decline

jurisdiction in this case, or alternatively, affirm the judg-

ment below.

Respectfully submitted,

Paut BENDER

Arizona State University

College of Law

Tempe, AZ 85287-7906

(602) 965-2556

Sean D. O’Brien

Public Interest Litigation Clinic

5319 Rockhill Road

Kansas City, MO 64110

(816) 363-9371

Frepric F. Kay

Federal Public Defender

Denise I. Younc

Date A. Baicu

Assistant Federal Public Defender

97 E. Congress Suite 130

Tucson, AZ 85701-1716

(520) 620-7043

Attorneys for Respondent

Dated: January 9, 1998

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.