Reply Brief — Stewart v. Martinez-Villareal

Supreme Court, U.S.

(\*) FILED

~4

No. 97-300 FEB 9 1998

In The |

Supreme Court of the United States

October Term, 1997

o

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

e

PETITIONERS’ REPLY BRIEF ON THE MERITS

¢

Grant Woops

Attorney General

Paut J. McMurpie

Chief Counsel

Criminal Appeals Section

Bruce M. Ferc

Assistant Attorney General

(Counsel of Record)

400 W. Congress, S-315

Tucson, Arizona 85701-1367

Telephone: (520) 628-6504

Attorneys for Petitioners

«

-

s

TABLE OF CONTENTS

TABLE OF AUTHORITIES ............ccccccccceess

I THE SUSPENSION CLAUSE ISSUE CANNOT BE

AVOIDED BY RESORT TO AN ERRONEOUS THE-

ORY OF STATUTORY CONSTRUCTION..........

II SINCE THE STATUTE IS UNAMBIGUOUS, THE

SUSPENSION CLAUSE ISSUE CANNOT BE

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III THE AMICUS BRIEFS SUPPORTING MARTINEZ-

VILLAREAL PROVIDE NO SUBSTANTIAL REA-

SON TO DISAGREE WITH PETITIONERS’ POSI-

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IV THE COURT POSSESSES JURISDICTION OVER

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12

TABLE OF AUTHORITIES

Page

Cases

Bailey v. United States, 116 S. Ct. 501 (1995).......... 7

Bonin v. Calderon, 999 F.2d 425 (9th Cir. 1993)....... 15

Brewster v. Gage, 280 U.S. 327 (1930)............0005. 9

Brown v. Gardner, 513 U.S. 115, 115 S. Ct. 552

IUPAC LU ECL Cla cic esa bedecdeeessesdcccccece 2

Bush v. Singletary, 99 F.3d 373 (11th Cir. 1996)........ 7

Busuetit’s Case, 124 Eng. Rep. 1006 (1607) ........... 16

Camarano v. Irvin, 98 F.3d 44 (2d Cir. 1996)........... 4

Ceja v. Stewart, 1998 WL 23241 (9th Cir. Jan. 20,

etch Sous ee ae eeenebwpadsseeebeesccccccces 14

Denton v. Norris, 104 F.3d 166 (8th Cir. 1997)........ 15

Edmond v. United States, 117 S. Ct. 1573 (1997)...... 13

Ex parte Bollman, 8 U.S. (4 Cranch) 75 (1807)..... 16, 17

Fay v. Noia, 372 U.S. 391 (1963)...............eeeee 16

Felker v. Turpin, 116 S. Ct. 2333 (1996)......... 5, 9, 19

Ford v. Wainwright, 477 U.S. 399 (1986)........ 4, 11, 15

Gomez v. U.S. District Court, 503 U.S. 653 (1992)..... 12

Greenawalt v. Stewart, 105 F.3d 1268 (9th Cir. 1997)..... 7

Henderson v. United States, 116 S. Ct. 1638 (1996)..... 6

Herrera v. Collins, 506 U.S. 390 (1993)............... 15

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

In re Sapp (McQueen v. Patton), 118 F.3d 460 (6th

TC Ee eee leb ened ccnes 04660 ¥0 50 Kepeeeccccce 11

TABLE OF AUTHORITIES — Continued

Page

In re Vial, 115 F.3d 1192 (4th Cir. 1997) .............. 7

Kremer v. Chemical Construction Corp., 456 U.S. 461

Ds 6) Sh ebu ab EMhe shadebb6c cccpaedds ce cenase coven: 6

Landgraf v. USI Film Products, 114 S. Ct. 1483

DN sok e FGUNEUSECKOS Cabeeccaneeccoecesccescects 15

Lockhart v. Fretwell, 506 U.S. 364 (1993).............. 4

Lonchar v. Thomas, 116 S. Ct. 1293 (1996) ............ 8

Lynce v. Mathis, 117 S. Ct. 891 (1997) ................ 2

Marbury v. Madison, 5 U.S. (1 Cranch 137) (1803) .... 17

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

RMB, unpub. order of Oct. 21, 1994, at 18-19....... 14

Nunez v. United States, 96 F.3d 990 (7th Cir. 1996)..... 7

Preiser v. Rodriguez, 411 U.S. 475 (1973)............. 11

Robinson v. Shell Oil Co., 117 S. Ct. 843 (1997)....... l

Rose v. Lundy, 455 U.S. 509 (1982) ................4.4.. 4

Salinas v. United States, 118 S. Ct. 469 (1997)........ 13

Seminole Tribe of Florida v. Florida, 116 S. Ct. 1114

Da dabashs Gbbeeebaswbebecduacesceccceccccccece 12

Stone v. Immigration and Naturalization Service, 115

i ey SE ED eA GSR eR CeCdsscdeccaccecccccccese 5

Stone v. Powell, 428 U.S. 465 (1976)............60005. 3

Sumner v. Mata, 449 U.S. 539 (1981).................. 3

Swain v. Pressley, 430 U.S. 372 (1977) ............... 12

Teague v. Lane, 489 U.S. 288 (1986) .............0005. 3

iv

TABLE OF AUTHORITIES — Continued

Page

United States v. American-Foreign Steamship Corp.,

SGD WB. GBS CIGGED. occ ccccccccccsccsecessccccccces 10

United States v. Hayman, 342 U.S. 205 (1952)......... 16

United States v. Locke, 471 U.S. 84 (1985)............ 12

United States v. Minker, 350 U.S. 179 (1956).......... 10

United States v. Scott, 124 F.3d 1328 (10th Cir. 1997) .... 14

United States v. Wells, 117 S. Ct. 921 (1997)........... 7

United States v. X-Citement Video, Inc., 115 S. Ct.

QBS CID. oc cc cdddbne cocccevevecivbedbvccscccges 12

Utah Junk Co. v. Porter, 328 U.S. 39 (1946)............ I

Wainwright v. Sykes, 433 U.S. 72 (1977).............. 3

Weaver v. Graham, 450 U.S. 24 (1981)................. 2

Whitten v. Tomlinson, 160 U.S. 231 (1895)............ 18

Yu Cong Eng v. Trinidad, 271 U.S. 500 (1926)........ 13

CONSTITUTIONAL PROVISIONS

U.S. Comet. amend. VIEL. ... 1... cccccccccccscvccccces 14

U.S. Comet. amend. XIV 2... cc ccccccccccccsccccccess 17

STATUTES

§ 14, Judiciary Act of 1789 .... 2... 6.66 c cece een nee 18

21 U.S.C. § 848(q)(4)(B). ... . 2... ee ce eee ene 12

BD GE. © GED 5 bcc cctcccdccccccccuresctbacscets 20

BB WEBB. GO BOB. cc cccccccccctecccccsccccstesccccses 11

Vv

TABLE OF AUTHORITIES - Continued

Page

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re 6, 7

SS UBL. § ZAGGGMAE). «oc ccccccccccccccccccccces 6, 7

BP is OF PINNED 6 occ ccccccccccccccccccscss 2

28 U.S.C. § 2244(b)(2)(B)(ii)................ 2, 4, 1, 20

BP ie Ie ccc ccc ccccccccccccccccccces 19

INES tbe dnd cuicd bd vocececcucdedcenccs 10

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Ruves

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Rule 9(b), Habeas Corpus Rules ..................... 5, 6

vi

TABLE OF AUTHORITIES — Continued

OrHer AUTHORITIES

Biackx’s Law Dictionary 1346-47 (rev. 4th ed. 1968) ....

Clarke D. Forsythe, The Historical Origins of Broad

Federal Habeas Corpus Review Reconsidered, 70

Norre Dame L. Rev. 1079 (1995)................

Dallin H. Oaks, Habeas Corpus in the States -

1776-1865, 32 U. Cm. L. Rev. 243 (1965)........

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

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

Henry J. Friendly, /s Innocence Irrelevant? Collateral

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

OG, FHS QHD UE c ccbcccccccvesccevcescstvccecons

Josern B. James, THe FRAMING oF THE FOURTEENTH

Amenpment 179-80 (1956). ...........0200c ee eees

Lewis Mayers, The Habeas Corpus Act of 1867: The

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

ee Fete eee

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

Constitutional Right or Legislative Grace?, 40 Cat.

leo GE SP GED © crc dghoccvcccessscnasccusces

Wurm F. Duxer, A ConstiruTionat History or

Hapeas Corpus 273-74 (1980) ....... cee eeeees

Page

10

THE SUSPENSION CLAUSE ISSUE CANNOT BE

AVOIDED BY RESORT TO AN ERRONEOUS THEORY

OF STATUTORY CONSTRUCTION.

A. Pram Meaninc or “Seconp or Successive.” (RB

16-24.)

Loathe to engage the Suspension Clause issue, Martinez-

Villareal focuses on statutory interpretation. His primary ploy

is to erect a false dichotomy between “plain meaning” and

“construction” of a statute. (RB at 16-24.) In their opening

brief, Petitioners contended that “second or successive peti-

tion,” as used in amended 28 U.S.C. § 2244(b), is so plain and

unambiguous that “statutory construction” cannot be legit-

imately invoked to extend the limits placed on such petitions,

creating an exception for incompetency for execution claims.

Martinez-Villareal therefore erects a straw man, portraying

Petitioners’ view of the statute in simplistic mathematical

terms, without reference to the full context. (/d. at 19, 23.)

Because his approach produces unreasonable results, Mar-

tinez- Villareal insists that the idea that the statute possesses a

plain meaning is itself unreasonable. Thus, he makes “plain

meaning” interchangeable with absurdity and opposed to

“construction,” so that “construction” equates with rea-

sonableness. Since the court of appeals innocuously labeled

its rewriting of the statute “construction,” Martinez- Villareal

argues that that interpretation of the statute was reasonable.

However, correctly understood, there is no conflict

between “construction” of a statute and that statute possessing

a “plain meaning.” Statutory “construction” is simply “the

ascertainment of meaning.” Utah Junk Co. v. Porter, 328 U.S.

39, 44 (1946). Meaning can be “plain” even when recourse

must be made to something other than the words immediately

in question. “The plainness or ambiguity of statutory language

is determined by reference to the language itself, the specific

context in which that language is used, and the broader context

of the statute as a whole.” Robinson v. Shell Oil Co., 117 S. Ct.

843, 846 (1997). Therefore, even determining that statutory

language is so plain that no further interpretive steps are

2

permissible constitutes “construction,” so “plain meaning” and

statutory “construction” are not mutually exclusive.

Freed of Martinez-Villareal’s false premise, it is easy to

see through his attempts to becloud the “second or succes-

sive” terminology in ambiguity. His strategy is to generate

hypotheticals that he asserts will have absurd results if

decided in accordance with the plain meaning of the statute.

He claims that his situation is indistinguishable from those

hypotheticals, and concludes that the results in his case are

statutorily unacceptable. (RB 18-24.) However, the strategy

fails at each step. First, “{a)mbiguity is a creature not of

definitional possibilities but of statutory context.” Brown v.

Gardner, 513 U.S. 115, __, 115 S. Ct. 552, 555 (1994).

When Martinez-Villareal’s hypotheticals are exposed to the

light of the whole statute, the alleged ambiguities evaporate.

Martinez- Villareal posits a habeas applicant returning to

federal court after a reconviction following a successful first

petition, one seeking habeas relief from a second conviction

occurring after an unsuccessful previous petition, one chal-

lenging a parole revocation after unsuccessfully attacking the

original trial, or ones questioning denial of incarceration

credits or changes to parole eligibility (like Lynce v. Mathis,

117 S. Ct. 891 (1997), and Weaver v. Graham, 450 U.S. 24

(1981)), as if there is ambiguity about the application of the

statute in such situations, but there is none. (RB 18-21.) In the

retrial, new charges, and parole revocation situations (and in

the cases cited by Martinez-Villareal’s footnotes 8 and 9), the

claims raised in the second petitions stem from new proceed-

ings, distinct from the original trials. Therefore, they obvi-

ously would be permitted: the claims were not presented in

the first petitions because the new proceedings did not yet

exist, and since “the factual predicate for the claim could not

have been discovered previously through the exercise of due

diligence,” § 2244(b)(2)(B)(i) expressly allows such claims to

be presented.

On the other hand, the results in Lynce and Weaver might

be different if decided under the amended statute. Section

2244(b)(2)(B)(ii) permits relief only if the error claimed is

such that “no reasonable factfinder would have found the

3

applicant guilty of the underlying offense,” thus excluding

claims that only implicate sentences. However, all this really

tells us is that the grounds for relief under the amended

statute are narrower than they were before the amendments,

and limitation of habeas relief was the very purpose of Con-

gress. Such narrowing is neither absurd nor an ambiguity in

the statute — it is simply a policy decision that Congress was

entitled to make, and did make, and made with unmistakable

clarity. Does the preclusion of sentence-based claims in suc-

cessive petitions mean that some potentially meritorious

claims cannot be reviewed? Yes — but that is precisely the

same situation that existed before habeas jurisdiction was

expanded to include state prisoners in 1867, or after the 1966

habeas amendments (which “were intended by Congress as

limitations on the exercise of that jurisdiction,” Sumner v.

Mata, 449 U.S. 539, 547 n.2 (1981)), or after this Court itself

prescribed limits on claims that could be considered, in Stone

v. Powell, 428 U.S. 465 (1976), Wainwright v. Sykes, 433 U.S.

72 (1977), and Teague v. Lane, 489 U.S. 288 (1986). Someone

is always left out when such a line is drawn, but that is the

very purpose of drawing the line, and it does not make the

line either ambiguous or absurd. Martinez-Villareal’s real

complaint is not that the statute lacks a plain meaning, but

that the plain meaning excludes his sentence-based claim.

However, such a policy choice is the domain of the legislative

body, Congress, not the interpretive organ, the courts.!

' Note 11 (RB at 21-22) and the NACDL brief (13-15) suggest that,

because Martinez-Villareal wishes to challenge the “execution” of his

death sentence, rather than the validity of his convictions or sentences, 28

U.S.C. § 2241 provides an independent source of authority for habeas

relief, free of the constraints on a “successive habeas corpus application

under section 2254” imposed by § 2244(b). However, Martinez- Villareal

never argued in the district court that § 2241 is a separate source of habeas

authority, thereby waving the claim. Further, the cases viewing § 2241 as

such an independent source of authority all involve federal prisoners,

looking for relief beyond the scope of § 2255, and no meaningful authority

is offered that § 2241 has ever been utilized as an alternate source of habeas

authority in a case involving a state prisoner.

4

This being so, it is clear that the other authorities relied

upon by Martinez-Villareal do not help him. That he asserts

“procedural defects” in the 4-day state-court hearing concern-

ing his competence and invokes Ford v. Wainwright, 477 U.S.

399 (1986) (see RB 22 n.12), is irrelevant, because no issue

of successive petitions was presented to this Court in Ford

and because Ford was decided before promulgation of the

express prohibition on sentence-related claims in

§ 2244(b)(2)(B)(ii). The court of appeals’ reliance on the line

of cases dealing with dismissal of “mixed” petitions, originat-

ing in Rose v. Lundy, 455 U.S. 509 (1982) (see RB at 22-23,

33) is also inapt: Rose was an interpretive choice by this

Court concerning mixed petitions, permissible only because,

in codifying the exhaustion doctrine, Congress had neglected

to clearly address the issue. 455 U.S. at 516-18. That is

worlds apart from this amendment, which precisely categor-

izes successive claims and then requires that they all be

dismissed unless they fall within the carefully delineated

exceptions established by § 2244(b)(2).2

Martinez-Villareal (and amicus ABA) contend that “sec-

ond or successive petition” is a term of art, freighted with

precisely the meaning given it in prior case law, so it cannot

? The decisions from other courts of appeals relied upon by Martinez-

Villareal and the Ninth Circuit (RB 22-23; JA 188-93), although purporting

to apply the Act, are clearly distinguishable. First, not one of those

decisions indicates that a sentencing issue was involved, so none had

occasion to consider the implications of § 2244(b)(2)(B)ii)’s express

preclusion of such claims. Second, the whole line of cases originates in

Camarano v. Irvin, 98 F.3d 44 (2d Cir. 1996). However, Camarano’s

refusal “[t]o foreclose further habeas review” applies only to cases where

there has been “no federal adjudication on the merits” (id. at 46, emphasis

added), and that appears to have been the situation in virtually all the cases

following it. Here, by contrast, every issue except competence for

execution was litigated for years and decided, so that even the concurring

judge below could not conscientiously apply the “no adjudication” theory.

(JA 195-95) Legal rules cannot properly be extended -beyond the

circumstances giving rise to them; “Cessante ratione legis, cessat et ipsa

lex.” Lockhart v. Fretwell, 506 U.S. 364, 373 (1993).

5

be understood more restrictively when used in amended

§ 2244(b), particularly since the language still appears in

Rule 9(b) of the Section 2254 Rules. (RB 23-24; ABA 8-12.)

However, “[w]hen Congress acts to amend a statute, we

presume it intends its amendment to have real and substantial

effect. . . . The reasonable construction is that the amendment

was enacted . . . not just to state an already existing rule.”

Stone v. Immigration and Naturalization Service, 115 S. Ct.

1537, 1545 (1995). Congress could not have manifested its

intent any more clearly when it eliminated the “not there-

tofore presented and determined” proviso in former § 2244(a),

as well as the “not adjudicated on the hearing of the earlier

application” and the “deliberately withheld the newly asserted

ground or otherwise abused the writ” language of former

§ 2244(b). Because those terms are the content of Rule 9b),

accepting the argument would require this Court to act

absurdly, treating the radical revision of § 2244(b) as if it

never occurred.3

The theory that the Act, though eradicating former

§ 2244(b), intended to import the identical content back into

the statute by nothing more than its use of the phrase “second

or successive petition,” subliminally incorporating Rule 9(b),

is not only implausible, but was effectively rejected by Felker

v. Turpin, 116 S. Ct. 2333 (1996). The Court recognized that,

practically speaking, the Rule was amended by the require-

ment to obtain permission to file a second petition, which

“transfers from the district court to the court of appeals a

screening function that would previously have been per-

formed by the district court as required by 28 U.S.C. § 2254

Rule 9(b).” 116 S. Ct. at 2340. Moreover, “[t}he Act also

3 Amicus ABA (9-10) suggests that the survival of Rule 9(b) signals

that Congress considered it consistent with the rest of the Act, and left it

untouched, with all the care it exercised in amending F.R.A.P. 22. In fact,

the amendment to F.R.A.P. 22 is clumsy, being inconsistent with § 2253(c)

about which judges can issue certificates of appealability, so it is quite

likely that simply neglected to remove from Rule 9(b) the

language that was banished from former § 2244(b).

6

codifies some of the pre-existing limits on successive peti-

tions and further restricts the availability of relief to habeas

petitioners. . . . The new restrictions on successive petitions

constitute a modified res judicata rule . . . The added restric-

tions which the Act places on second habeas petitions are well

within the compass of this evolutionary process .. . ” /d.,

emphasis added. Thus, it repeatedly affirms that the Act is

intended to go well beyond either Rule 9(b) or the previous

jurisprudence of the Court, in restricting consideration of

successive petitions.*

Martinez-Villareal ends this section with the conclusory

assertion that Congress could not have imagined its language

in § 2244(b)(1) and (2) would be interpreted to preclude

“claims presented in the only petition in which a federal court

is able to hear them at all.” (RB 24, emphasis in original.)

That, however, is exactly what the plain language contem-

plates. Thus, if there is a new rule of criminal law which

either is not constitutional, or has not been made retroactive

4 Although Rule 9(b) is not expressly modified in the Act, it cannot

thwart Congress’ intent to fundamentally alter habeas law by revising

§ 2244(b). When enactments of equal dignity conflict, the one last in time

governs. Henderson v. United States, 116 S. Ct. 1638, 1646 (1996).

Repeals by implication will be recognized when the two acts are in

irreconcilable conflict, or the later act covers the whole subject of the

earlier one and is clearly intended as a substitute. Kremer v. Chemical

Construction Corp., 456 U.S. 461, 468 (1982). Amended § 2244(b)

addresses “second or successive” habeas petitions, the very same subject as

Rule 9(b), but the provisions conflict irreconcilably: the Rule is permissive

about dismissals (“may”), while the statute is mandatory (“shall”); under

the Rule even the permissive dismissal based on prior presentation of a

claim cannot occur unless there was a “prior determination on the merits,”

but § 2244(b)(1) requires dismissal of previously-presented claims

regardless of how they were resolved; under the Rule claims that have not

been presented before may be dismissed only if the judge finds “abuse of

the writ,” but the statute requires their dismissal unless they satisfy the

sharply defined criteria set out in § 2244(b)(2)(A) and (B); and, as noted in

the text, language virtually identical to the Rule was deleted from

§ 2244(b). Thus, Congress doubtless intended that successive petitions be

dealt with under the statute, not the Rule.

7

by this Court, § 2244(b)(2)(A) precludes its consideration in a

successive petition. See, e.g., Nunez v. United States, 96 F.3d

990 (7th Cir. 1996), and In re Vial, 115 F.3d 1192, 1195-97

(4th Cir. 1997) (determined that Bailey v. United States, 116

S. Ct. 501 (1995), is neither a new rule of constitutional law,

nor made retroactive by this Court to cases on collateral

review, so it furnishes no basis for successive § 2255 peti-

tions). If there is a claim based on previously undiscoverable

facts, but it does not implicate constitutional error, or goes

strictly to sentence, § 2244(b)(2)(B) precludes its consider-

ation in a successive petition. See, e.g., Bush v. Singletary, 99

F.3d 373 (11th Cir. 1996) (successive § 2254 petition in a

capital case based on claim of sentence disproportionality

arising out of recent vacation of codefendant’s death sentence

precluded because federal constitution not implicated);

Greenawalt v. Stewart, 105 F.3d 1268, 1277 (9th Cir. 1997)

(successive petition claiming ineffective assistance in capital

sentencing precluded). Far from contradicting the intent of

Congress, preclusion of such successive petitions is precisely

what the amendment to § 2244 was designed to accomplish.

B. Tue Stare Dip Nort Warve tue Ricut to Assert THE

SUCCESSIVENESS OF MARTINEZ- VILLAREAL’S Petirion. (RB 24-27.)

Martinez-Villareal berates Petitioners for having first

argued that his competency claim was not ripe for adjudica-

tion when it was first raised (which was plainly true), and

then having asserted — after the passage of the Act — that the

claim should be precluded, which sequence or events is con-

tended to constitute a waiver of the “defense” of successive-

ness. Whether or not the new restrictions on successive

petitions established by the Act are technically “jurisdic-

tional,” it is preposterous to argue that Petitioners “waived”

the Act-based successiveness “defense” years before the leg-

islation creating that “defense” was enacted. Martinez-Vil-

lareal offers no authority that a party can unintentionally

waive a defense before it is ever created. This Court held in

United States v. Wells, 117 S. Ct. 921, 926 (1997), that a

good-faith change of litigation position, based on an unfore-

seen intervening change in the law, is “[nJothing the Govern-

ment has done [that] disqualifies it from the chance to make

8

its position good in this Court.” Martinez-Villareal’s spurious

waiver argument must be rejected.

C. MisceLLANgEOus ARGUMENTS THAT MartTINEz-ViL-

LAREAL’S SECOND Petition SHOULD Not Be Deemep Successive.

(RB 27-34.)

This patchwork of arguments is intended to support the

court of appeals’ view that Martinez-Villareal’s second peti-

tion should not be deemed successive for purposes of the Act.

The first several pages (27 to mid-30) merely reiterate how

dreadful the State is, state in conclusory fashion that the court

below was correct, and note some commonplaces about the

text of the Act. Martinez-Villareal makes the illogical asser-

tion that, “if, as Lonchar [v. Thomas, 116 S. Ct. 1293 (1996)]

teaches, a petition by a different person is not a ‘second or

successive habeas corpus application under section 2254,’

neither is a petition occasioned by a different state court

judgment.” (RB 30.) Of course, Lonchar’s facts (that relatives

of a petitioner had previously attempted to file petitions on

his behalf, which were dismissed when he opposed them) are

totally different from this case. Lonchar did not concern the

amended form of the habeas statute, and did not opine about

the successiveness of petitions occasioned by different state

court judgments, so it provides no support for Martinez-

Villareal’s position.

Martinez- Villareal attempts to use his idea that petitions

based on different state court judgments can never be succes-

sive to explain why, in the past, competency for execution

claims have not been dismissed as abuses of the writ. (RB

30-31.) This approach is transparently wrong because under

the previous incarnation of § 2244(b), the criterion was not

how many state court judgments were involved, but whether

the second application was predicated on a “factual or other

ground” excusably not adjudicated in the first petition. Fur-

thermore, this approach “mixes apples and oranges,” because

“abuse of the writ” has been expurgated from the § 2244

lexicon. Whether Martinez-Villareal would have been found

to have abused the writ under prior law is irrelevant to how

the current law is to be understood; although a few phrases

9

were carried over, the operative language now is vastly differ-

ent. “The deliberate selection of language so differing from

that used in the earlier acts indicates that a change of law was

intended.” Brewster v. Gage, 280 U.S. 327, 337 (1930).

The next several pages include a complaint that, because

res judicata ordinarily requires a “full and fair opportunity to

litigate” a matter before it is precluded, and Martinez-Vil-

lareal has not been able to litigate his competency claim in

federal court, the Act should not be interpreted to preclude

that claim (n.17 and text). However, the claim was fully

litigated, in 4 days of state court hearings. Further, it is

axiomatic that habeas corpus is not subject to the ordinary

rules of res judicata. Finally, the Act’s restrictions are a

“modified res judicata rule,” which not only “codifies some of

the pre-existing limits on successive petitions” but also “fur-

ther restricts the availability of relief.” Felker v. Turpin, 116

S. Ct. at 2340 (emphasis added). Hence, Martinez-Villareal’s

reliance on res judicata is totally misplaced.

The real gist of Martinez-Villareal’s argument seems to

be that the nature of an incompetency for execution claim is

such that it will always be either too early (not ripe) or too

late (raised in a successive petition, after all the other claims

have been litigated to conclusion), so that to apply the Act’s

prohibition against sentence-based successive petitions will

mean it can never be addressed in habeas corpus proceedings.

Presuming that, before there can be a second petition, “there

must be a ‘first’ petition in which the challenge to the judg-

ment could possibly have been presented on the merits,” and

that Congress could not have intended to thus preclude an

entire class of claims, Martinez- Villareal concludes that such

a reading of the statute is incorrect. (RB 32-34.)

Neither presumption is correct. First, this Court has

repeatedly repudiated the idea that there is any absolute right

to have a federal issue litigated in federal court. (Opening

Brief at 43.) Second, even a casual reading of the Act reveals

several places where Congress intentionally derailed whole

classes of claims in addition to the prohibition of all sentence-

based successive petitions. Relief is banned in first petitions

for all law-based claims where the state court decision was

10

not contrary to or an unreasonable application of Federal law

as determined exclusively by this Court. § 2254(d)(1). It is

banned in first petitions for all fact-based claims where the

state court determination was not unreasonable. § 2254(d)(2).

It is effectively banned for most fact-based claims where the

petitioner failed to develop the factual basis in the state

courts, because he generally will not be afforded an evidenti-

ary hearing in the federal courts. § 2254(e)(2). Finally, it is

precluded on all claims that are not brought within the l-year

statute of limitations established by § 2244(d). Thus, there are

numerous situations in which Congress plainly intended that a

state inmate not be afforded even “a ‘first’ petition in which

the challenge to the judgment could possibly have been pre-

sented on the merits.”

The efforts of amicus American Bar Association to wring

evidence of some other intent from the language of the statute

are equally unavailing. ABA asserts that “presented” in

§ 2244(b)(1) actually means “raised and determined in a prior

application,” in the sense that it has been “adjudicated on the

merits.” (ABA 4-5, emphasis in original.) This contention

blithely ignores several facts: (1) In common legal usage, to

“present” does not indicate determination; it only means,

“[t]o lay before judge, magistrate, or governing body for

action or consideration; submit as a petition or remonstrance

for a decision . . .” BLack’s Law Dicrionary 1346-47 (rev. 4th

ed. 1968). (2) “Determined” was removed from the only place

it appeared in the text of the statute, § 2244(a). (3) That the

section’s title is “Finality of Determination” signifies nothing;

“the title of a statute and the heading of a section cannot limit

the plain meaning.” United States v. Minker, 350 U.S. 179,

185 (1956). (4) “Determination” does not imply a decision on

the merits, as opposed to some other conclusion of the matter.

“A case or controversy is ‘determined’ when it is decided,”

United States v. American-Foreign Steamship Corp., 363 U.S.

685, 688 (1960), and a resolution on the merits is not neces-

sarily implied here, because § 2244(d) contemplates dismissal

simply for failure to meet a time limit. Thus, the statute does

not require a prior decision on the merits before a petition is

precluded as “successive.”

In short, the problem is not that there is no plain mean-

ing, but merely that Martinez-Villareal, his amici, and the

court of appeals find the plain meaning unpalatable. The

intent of Congress, manifested throughout the Act, was to

severely limit the categories of claims that could be presented

in habeas proceedings, in first as well as successive petitions,

and the preclusion of sentence-based successive petitions in

§ 2244(b)(2)(B)(ii) is consistent with that intention. There-

fore, the court of appeals was not free to subvert Congres-

sional intent by “construing” the Act in a manner directly

contrary to its plain meaning.5

5 This does not mean, however, that the whole issue can be

sidestepped (as suggested by several amici) by saying that a Ford claim

does not fall within the traditional concept of “custody,” so that it should be

resolved in a 28 U.S.C. § 1983 action rather than a habeas petition (an

approached denounced by Martinez-Villareal himself, RB 35 n.19). First,

Section 1983 was characterized as “a proper remedy for a state prisoner

who is making a constitutional challenge to the conditions of his prison

life,” Preiser v. Rodriguez, 411 U.S. 475, 499 (1973) (emphasis added), but

whether one is to be deprived of life (i.e., have his “length of custody”

ended) is not reasonably understood as a “condition of” prison life. In Jn re

Sapp (McQueen v. Patton), 118 F.3d 460, 463 (6th Cir. 1997), the Sixth

Circuit rejected a challenge to execution by electrocution with the

following ruling:

McQueen's argument that his purported § 1983 action is

simply a challenge to his “conditions of confinement” rather

than to the sentence itself is unpersuasive. The prevention of

the execution is itself an overturning of the sentence. McQueen

was sentenced to death, not simply to a lifetime of litigating

about death. Thus, this challenge is not equivalent to a simple

“conditions of confinement” action, such as a claim that a

prisoner's cell is too cold, though the prisoner doesn’t object to

being imprisoned in a warmer cell.

Second, Ford, of course, was itself a habeas action, and every case treating

competency for execution has likewise been adjudicated through such

proceedings. See In re Davis, 121 F.3d 952, 954-55 (Sth Cir. 1997)

(discussing cases). Moreover, even before passage of the Act, this Court

made clear that § 1983 should not be utilized to avoid the limitations on

successive habeas petitions, regardless of whether they raised claims

12

Il

SINCE THE STATUTE IS UNAMBIGUOUS, THE SUS-

PENSION CLAUSE ISSUE CANNOT BE AVOIDED.

Martinez-Villareal makes vague assertions about the

complexity of the issues that might be involved in this case

and hypothetical future cases. (RB 34-37.) All this really

means is that this case raises a significant constitutional

dispute — i.e., is the very sort of matter this Court was

established to resolve — and constitutes no grounds for avoid-

ing the issue.

Closer to a meaningful argument is Martinez-Villareal’s

reliance upon the line of cases, exemplified by United States

v. X-Citement Video, Inc., 115 S. Ct. 464 (1994), which

indicates that constitutional issues should not be considered

unnecessarily. However, Martinez-Villareal ignores his own

quotation from United States v. Locke, 471 U.S. 84, 92

(1985), that the legitimate premise for declining resolution of

a constitutional issue is that, “a construction of the Act is

fairly possible” by which that can be done. (RB 36, emphasis

added.) Where, as here, the Congressional intent in the statute

is clear, “that finding renders the preference for avoiding a

constitutional question inapplicable.” Seminole Tribe of Flor-

ida v. Florida, 116 S. Ct. 1114, 1124 n.9 (1996); see also

Swain v. Pressley, 430 U.S. 372, 378 (1977) (clarity of D.C.

Code provision claimed to violate Suspension Clause did not

permit resort to statutory construction to avoid the constitu-

tional issue).

concerning executions. Gomez v. U.S. District Court, 503 U.S. 653 (1992);

Lonchar v. Thomas, 116 S. Ct. at 1301. Finally, Congress’ intention that

claims concerning death sentences be handled via habeas is unmistakable —

21 U.S.C. § 848(q)(4)(B) only provides funds for “post-conviction

proceeding(s) . . . seeking to vacate or set aside a death sentence” if brought

“under section 2254 or 2255 of Title 28,” and the Act's detailed new

provisions for capital cases in Chapter 154 all contemplate habeas

proceedings. Such clear intent by the author of both remedial processes

must prevail, and Ford claims must be resolved through habeas

proceedings.

13

The Court’s abhorrence for treating a statute as “a nose

of wax, to be changed from that which the plain language

imports,” under the pretense of avoiding a constitutional

issue, Yu Cong Eng v. Trinidad, 271 U.S. 500, 518 (1926),

was unanimously reemphasized this term, in Salinas v. United

States, 118 S. Ct. 469, 475 (1997):

“No rule of construction, however, requires

that a penal statute be strained and distorted in

order to exclude conduct clearly intended to be

within its scope. . . . ” United States v. Raynor, 302

U.S. 540, 552 (1938). As we held in Albertini,

supra, [472 U.S. 675] at 680,

Statutes should be construed to avoid constitu-

tional questions, but this interpretive canon is

not a license for the judiciary to rewrite lan-

guage enacted by the legislature. Heckler v.

Mathews, 465 U.S. 728, 741-42 (1984). Any

other conclusion, while purporting to be an

exercise in judicial restraint, would trench

upon the legislative powers vested in Congress

by Art. I, § 1, of the Constitution. United States

v. Locke, 471 U.S. 84, 95-96 (1985).

These principles apply to the rules of statutory

construction we have followed to give proper

respect to the federal-state balance. As we observed

in applying an analogous maxim in Seminole Tribe

of Florida v. Florida, 116 S. Ct. at 1124, “{wl]e

cannot press statutory construction to the point of

disingenuous evasion even to avoid a constitutional

question.” /d. at n.9. Gregory |v. Ashcroft, 501 U.S.

452 (1991)] itself held as much when it noted the

principle it articulated did not apply when a statute

was unambiguous. See Gregory, 501 U.S., at 467. A

Statute can be unambiguous without addressing

every interpretive theory offered by a party. It need

only be “plain to anyone reading the Act” that the

Statute encompasses the conduct at issue. /bid.

“A constitutional question confronted in order to pre-

serve, if possible, a congressional enactment is not a constitu-

tional question confronted unnecessarily.” Edmond v. United

14

States, 117 S. Ct. 1573, 1578 (1997). Section 2244(b)’s

restrictions on successive petitions are so clear as not to

brook an “interpretation” that magically creates a class of

“non-successive” petitions exempt from those limitations.

Therefore, this Court should resolve the Suspension Clause

issue.®

THE AMICUS BRIEFS SUPPORTING MARTINEZ-

VILLAREAL PROVIDE NO SUBSTANTIAL REASON

TO DISAGREE WITH PETITIONERS’ POSITION.

In addition to the foregoing, Petitioners contend that the

remaining arguments by Martinez-Villareal’s amici are unper-

suasive.

A. NACDL. The primary argument offered by this amicus

against applying § 2244(b) to preclude Martinez-Villareal’s

successive petition fleshes out a suggestion by Martinez-

Villareal, that to do so will deprive him of due process by

retroactively creating “new legal consequences,” namely, “the

outright extinction of respondent's right to secure plenary

review of his Ford claim.” (NACDL 7-9; RB 37.) However,

this argument is fatally flawed because at no time before the

passage of the Act did Martinez-Villareal actually have a

“Ford claim.” The claim was dismissed when presented in his

earlier petition because it was premature, since he was not

facing execution within the foreseeable future. Martinez-Vil-

lareal v. Lewis, CIV 86-296 TUC RMB, unpub. order of Oct.

21, 1994, at 18-19. Given the proverbial fluidity of mental

states, “the issue of sanity is properly considered in proximity

© The urgency for decision of all the issues on which certiorari was

granted is magnified by the lower courts’ unbridled urge to create further

exceptions to the statute whenever circumstances are deemed “unique,” on

the authority of the Ninth Circuit opinion in this case. See United States v.

Scott, 124 F.3d 1328 (10th Cir. 1997) (ineffective assistance of counsel

claims), Ceja v. Stewart, 1998 WL 23241 at *2-*5 (9th Cir. Jan. 20, 1998)

(dissent urges review of claim that length of time on death row had created

newly-ripe Eighth Amendment claim).

15

to the execution.” Herrera v. Collins, 506 U.S. 390, 406

(1993). Hence, Martinez-Villareal possessed no cognizable

“Ford claim” until March 12, 1997, when the Arizona

Supreme Court issued a warrant for his execution, almost a

year after the Act became law. (JA 27.) Before enactment,

Martinez-Villareal possessed nothing more than a hope or

expectation that he would be allowed to raise the competency

claim in a successive petition.

A statute does not operate “retrospectively”

merely because it is applied in a case arising from

conduct antedating the statute’s enactment, or

upsets expectations based in prior law. Rather, the

court must ask whether the new provision attaches

new legal consequences to events completed before

its enactment.

Landgraf v. USI Film Products, 114 S. Ct. 1483, 1499 (1994)

(emphasis added). The relevant event for purposes of a Ford

claim is an imminent execution, and since in this case that

event certainly post-dates enactment of the AEDPA, it is

logically impossible to say that the Act is being applied

“retrospectively” to Martinez-Villareal.’

2. ACLU. Martinez-Villareal himself having dodged the

issue, the amici attempt to demonstrate that the Suspension

Clause should be construed as protecting 200 years of unfore-

seen judicial and statutory accretions, rather than the limited

common law writ familiar to the drafters (a claim rejected in

Denton v. Norris, 104 F.3d 166, 167 (8th Cir. 1997)). ACLU

begins (at 7) by disparaging Petitioners’ brief as “a virtual

download from a law review article prepared by a former

7 This also disposes of NACDL’s suggestion (brief at 12-13) that this

case was properly returned to the district court pursuant to F.R.C.P. 60(b);

no authority is provided that that rule is legitimately employed where a

dismissed non-existent claim subsequently comes into being. In any event,

the weight of authority in pre-AEDPA cases was that Rule 60(b) could not

be used to avoid the “cause and prejudice” standard for successive habeas

petitions. See Bonin v. Calderon, 999 F.2d 425, 428 (9th Cir. 1993) (listing

cases). By parity of reasoning, it cannot be used to subvert the new

restrictions on such petitions.

16

Justice Department lawyer nearly a half century ago,” refer-

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

Constitutional Right or Legislative Grace?, 40 Ca. L. Rev.

335 (1952). Unmentioned is the fact that Collings was a

counsel for the Government in United States v. Hayman, 342

U.S. 205 (1952), in opposition to Paul Freund, whose views

are heavily relied upon by ACLU at 11-13. Freund argued a

theory that the universal understanding of the 1679 English

Habeas Corpus Act as not applying to prisoners in execution

of sentence resulted from a “misplaced parenthesis,” sup-

posedly bolstered by Bushell’s Case, 124 Eng. Rep. 1006

(1607). The argument was implicitly rejected by the Hayman

court’s statement that, “at common law a judgment of convic-

tion rendered by a court of general criminal jurisdiction was

conclusive that confinement was legal [which] prevented

issuance of the writ without more.” 342 U.S. at 211. Although

Freund’s view was accepted in Fay v. Noia, 372 U.S. 391,

403-04 (1963), another mainstay of ACLU’s brief, both points

have been refuted by scholars in addition to Collings. See

Clarke D. Forsythe, The Historical Origins of Broad Federal

Habeas Corpus Review Reconsidered, 70 Notre Dame L. Rev.

1079, 1164-65 (1995); Wmuiam F. Duxer, A ConstrruTionaL

History or Haseas Corpus 273-74 (1980); Henry J. Friendly,

Is Innocence Irrelevant? Collateral Attack on Criminal Judg-

ments, 38 U. Cur. L. Rev. 142, 171 (1970); Dallin H. Oaks,

Legal History in the High Court - Habeas Corpus, 64 Mich.

L. Rev. 451, 461-68 (1966); Dallin H. Oaks, Habeas Corpus

in the States - 1776-1865, 32 U. Cm. L. Rev. 243, 262 (1965).

Hence, neither Freund nor Fay should carry much weight with

this Court.

Not to be outdone by its forbearer, the ACLU brief

(14-16) presents its own singular theory, that when Congress

creates lower federal courts pursuant to Article III, they

instantly acquire inherent authority to issue habeas writs, in a

manner equivalent to this Court’s original jurisdiction. Since

this tack runs aground on Ex parte Bollman, 8 U.S. (4 Cranch)

75 (1807), ACLU (16-17) propounds that when Boliman

spoke of the necessity for the power to issue the writ to be

“given by written law,” it referred to the Constitution as well

17

as to statutes. However, from its very first sentence, Bollman

distinguishes between “the constitution or the laws of the

United States.” 8 U.S. at 93. Thus, the inquiry was, “whether

by any statute compatible with the constitution of the United

States, the power to award a writ of habeas corpus . . . has

been given to this court.” (/d. at 94.) This sentence is twice

fatal to ACLU’s theory: if habeas authority is bestowed

directly by the Constitution, there is no need to consider

whether there is a statutory basis for it (so the authority does

come from statute, not the Constitution); further, even this

Court gets its habeas authority by statute, so there is no

“original” habeas jurisdiction here, let alone in the lower

federal courts. Likewise, if the authority is “original” and

direct from the Constitution, the rest of Bollman, with its

careful statutory analysis, is pointless. ACLU’s revisionist

speculation that somehow the Court “overlooked” a Constitu-

tional basis for habeas jurisdiction when it decided Marbury

v. Madison, 5 U.S. (1 Cranch 137) (1803), and neglected to

correct this oversight when directly confronted with the issue

in Bollman, verges on the ludicrous. (ACLU at 17-18.)

Finally, ACLU (21-22) suggests that the basis for state

prisoner habeas is the Fourteenth Amendment, rather than the

statute of 1867. First, ACLU has its chronology wrong: Con-

gress proposed the Amendment in 1866, the year before

enacting the statute, but it was not ratified until July of 1868.

Historical Notes, U.S.C.A. It makes no sense to say that there

was a jurisdictional statute in place for more than a year

before there was anything which could be adjudicated under

it, and the historical evidence does not support the theory that

the Act was intended to enforce the Amendment. Lewis

Mayers, The Habeas Corpus Act of 1867: The Supreme Court

as Legal Historian, 33 U. Cm. L. Rev. 31, 52-55 (1965);

Forsythe at 1152. Moreover, by its own terms, the Amend-

ment prohibits states from making or enforcing laws which

abridge the privileges or immunities of citizens of the United

States. This language has generally been understood to mean

only that the states could not discriminate among their citi-

zens, primarily to protect the emancipated slaves, who previ-

ously had not been deemed citizens. The “privileges and

18

immunities of citizens” were the benefits already bestowed by

other provisions of the Constitution. Joserpx B. James, Tue

FRAMING OF THE FOURTEENTH AMENDMENT 179-80 (1956). Thus,

while the Amendment might be construed to prohibit states

from suspending habeas corpus, it simply does not speak to

Congress’ ability to enlarge or reduce federal court habeas

authority.

3. ABA. In addition to other matters previously dealt

with, this brief (16-25) asserts that from 1789 to the present,

Congress has always authorized federal review “as of right”

for any prisoner with a federal constitutional claim, and that

this is such an “established principle” that it should not be

deemed to have been modified by the Act in the absence of a

clearer statement of intent to do so. As indicated by its

reliance on Whitten v. Tomlinson, 160 U.S. 231 (1895), a

rather obscure case that does not support the proposition for

which it is cited, this is an amalgam of arguments previously

made by Gary Peller and James Liebman, which are thor-

oughly refuted in Forsythe at 1146-60. The argument is inter-

nally self-defeating, because it acknowledges that from 1789

until 1867 (during which habeas review of state prisoner

cases was clearly precluded by the language of § 14 of the

Judiciary Act), review by writ of error was also unavailable

unless the federal question appeared on the “face of the

record.” Thus, every state prisoner with a federal constitu-

tional claim was not entitled to some kind of federal review as

of right during this period. The brief cites not a single statute

or decision from this Court explicitly recognizing this sup-

posedly permanent and paramount intention of Congress, nor

does it address the Court’s repeated explicit rejections of the

idea that there is some general right to federal review. (Peti-

tioners’ Brief at 43.) In short, the contention is transparently

untenable.

19

IV

THE COURT POSSESSES JURISDICTION OVER THIS

CASE.

In both their certiorari petition and their first Brief on the

Merits, Petitioners asserted that this Court possesses “statu-

tory” certiorari jurisdiction over this case, despite the prohibi-

tion on certiorari review contained in § 2244(b)(3)(E), for two

reasons. First, that prohibition, by its own terms, only pre-

cludes review of “(t]he grant or denial of an authoriza-

tion .. . to file a second or successive petition,” but the court

of appeals was emphatic that it was neither granting nor

denying permission to file a successive petition, instead dis-

missing “as unnecessary” the motion requesting permission,

because in its view Martinez-Villareal was filing a “first”

petition, for which no permission is required. (JA 194.) Mar-

tinez-Villareal acknowledges that the statutory language is

“very explicit” (RB 38), but since a reasonable reading of that

language shows that the prohibition on review does not apply

to this case, he attempts to shift ground, and relies on this

Court’s shorthand reference to the statute as precluding

review of “a judgment on an application for leave to file” a

second petition. (RB 40-41, quoting Felker v. Turpin, 116 S.

Ct. at 2339.) This ploy is plainly specious, because it is

obvious that if a question of statutory interpretation arises, it

is the text of the statute, not a precis of it, which must be

analyzed. Since the statutory language does not encompass

the judgment entered by the court of appeals here, the prohi-

bition on review does not apply.

Second, in the opening brief (at 47) Petitioners pointed to

previous cases in which this Court held itself not bound by

prohibitions against review of specific determinations under a

statute when the issue presented was the construction or

constitutionality of the statute. Neither Martinez- Villareal nor

NACDL (the only amicus addressing jurisdiction) even dis-

cuss them, tacitly conceding that the Court’s jurisdiction on

this basis is proper.

Since jurisdiction by “statutory” certiorari is certain,

there should be no need to unravel the complexities of

20

extraordinary writ jurisdiction. However, Petitioners maintain

that, if statutory certiorari is for some reason unavailable,

jurisdiction exists pursuant to 28 U.S.C. § 1651(a), for the

reasons discussed at length in the certiorari petition and their

first Brief on the Merits. Once again, neither Martinez-Vil-

lareal nor NACDL so much as attempt to distinguish Peti-

tioners’ cases. Thus, it stands unrefuted that Petitioners are

entitled to an extraordinary writ if statutory certiorari is

unavailable, so there is no jurisdictional bar to the Court

deciding this case.

CONCLUSION

The plain meaning of 28 U.S.C. § 2244(b)(2)(B)(ii) dic-

tates that Martinez-Villareal’s latest petition is indeed a suc-

cessive petition, which must be precluded. Because it is

evident that all the Suspension Clause protects is the kind of

habeas corpus known to the Framers in 1789, the Clause

presents no obstacle to enforcement of the AEDPA. There-

fore, Martinez-Villareal’s successive petition presenting his

claim of incompetency for execution is precluded, and the

court of appeals’ order directing consideration of it must be

vacated.

Respectfully submitted,

Grant Woops

Attorney General

Pau J. McMurpie

Chief Counsel

Criminal Appeals Section

Bruce M. Ferc

Assistant Attorney General

(Counsel of Record)

Attorneys for Petitioners