Amicus Curiae Brief — Stewart v. Martinez-Villareal

MOTION FILED ;

sep 17 1997. 3

No. 97-300

IN THE

Supreme Court of the United States

OCTOBER TERM, 1997

TERRY STEWART, Director,

Arizona Department of Corrections, et al.,

Petitioners,

vs.

RAMON MARTINEZ-VILLAREAL,

Respendeni.

On Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

MOTION FOR LEAVE TO FILE AND

BRIEF AMICUS CURIAE OF THE

CRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF THE PETITION FOR

WRIT OF CERTIORARI

KENT S. SCHEIDEGGER

Criminal Justice Legal Fdn.

2131 L Street

Sacramento, CA 95816

Telephone: (916) 446-0345

Attorney for Amicus Curiae

Criminal Justice Legal Foundation

QUESTIONS PRESENTED

1. Do the limitations on second and successive petitions in

28 U. S. C. §2244(b) apply to competency for execution

claims?

2. Would applying the Act to prevent consideration of a

claim of incompetency for execution, which is raised in a

second or successive habeas corpus petition, constitute a

violation of the Suspension Clause?

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

4. Does a federal habeas court have subject matter jurisdic-

tion to determine competency for execution?

(i)

IN THE

Supreme Court of the United States

OCTOBER TERM, 1997

TERRY STEWART, Director,

Arizona Department of Corrections, et al.,

Petitioners,

vs.

RAMON MARTINEZ-VILLAREAL,

Respondent.

MOTION OF AMICUS CURIAE FOR LEAVE

TO FILE BRIEF IN SUPPORT OF THE PETITION

FOR WRIT OF CERTIORARI

Pursuant to Supreme Court Rule 37.2, the Criminal Justice

INTEREST OF AMICUS CURIAE

of the accused into balance with the rights of the victim and of

society to rapid, efficient and reliable determination of guilt and

swift execution of punishment.

iv

The Ninth Circuit’s evasion of the successive petition limits

established by Congress is contrary to the rights of victims and

society which CJLF was formed to advance.

For the foregoing reasons, amicus requests leave to file its

brief.

September, 1997

Respectfully submitted,

KENT S. SCHEIDEGGER

Attorney for Amicus Curiae

Crantodl hodes Leal Poondation

ooo coebesebehovtcccnancs

The decision in this case is not distinguishable from

the decision of the Fifth Circuit in Davis on any

EEE EE

Ill

A habeas court lacks subject matter jurisdiction to review

competency to be executed ...... 26... 2...

(v)

vi

TABLE OF AUTHORITIES

Cases

Allen v. McCurry, 449 U. S. 90 , 66 L. Ed. 2d 308,

DGS BGR Gee coccbtoesceachecseescacsccs 10

Bender v. Williamsport Area School Dist., 475 U. S. 534,

89 L. Ed. 2d 501, 106 S. Ct. 1326 (1986) ............ 6

Edwards v. Balisok, 137 L. Ed. 2d 906, 117 S. Ct. 1584

|, PPPPPPP PTT eee 9

Ex parte Watkins, 3 Pet. (28 U. S.) 193, 7 L. Ed. 650

Pers eee 9

Federal Election Comm’n v. NRA Political Victory Fund,

513 U. S. 88, 130 L. Ed. 2d 439,

SESE Gh Ser ee dchicocccsccncsedscccsccces: 8

Felker v. Turpin, 135 L. Ed. 2d 827, 116 S. Ct. 2333

GP ccccceccstcedeteudetebaeesbeasstcccceces 9

Fierro v. Gomez, 77 F. 3d 301 (CA9 1996) ............. 9

Ford v. Wainwright, 477 U. S. 399, 91 L. Ed. 2d 335,

106 S. Ct. 2595 (1986) . 2... ccc cece 9, 10

Gibson v. Berryhill, 411 U. S. 564, 36 L. Ed. 2d 488,

SD Ge Ee 06 we Gatieee oc cmenccessicceces 11

Gomez v. Fierro, 136 L. Ed. 2d 204, 117 S. Ct. 285

GORUED 0 000000000006064shenbenehimenennesanes 9

Heck v. Humphrey, 512 U. S. 477, 129 L. Ed. 2d 383,

BOOE, GR BO wcvecdceccsescvcccsccess 9,10

Hill v. Martin, 296 U. S. 393, 80 L. Ed. 293,

, BE Ga bo cn ekereiscdedecccccessocsn 10

In re Davis, No. 97-00312, 1997 U. S. App. LEXIS 22736

OE, Ree TE Ri ois vcdccaveccdanbatahtnce 7,8

vii

In re Medina, 109 F. 3d 1556 (CA11 1997)............. 8

Insurance Corp. of Ireland v. Compagnie des Bauxites de

Guinee, 456 U. S. 694, 72 L. Ed. 2d 492, 102 S. Ct. 2099

EEN TEE eT RISES TPN ES a s

Johnson v. De Grandy, 512 U. S. 997, 129 L. Ed. 2d 775,

ESE Se 5

Marks v. United States, 430 U. S. 188, 51 L. Ed. 2d 260,

ERR ET y

Martinez- Villareal v. Arizona, 137 L. we. 28 1044,

Ne ee cceécccce 3

Martinez-Villareal v. Arizona, 474 U. S. 975,

88 L. Ed. 2d 324, 106 S. Ct. 339 (1985) ............. l

Martinez-Villareal v. Arizona, 493 U. S. 874,

107 L. Ed. 2d 158, 110 S. Ct. 205 (1989) ............ 2

Martinez-Villareal v. Arizona, 506 U. S. 893,

121 L. Ed. 2d 196, 113 S. Ct. 267 (1992) ............ 2

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

Citi’. encemineanebesb 6codbeee ce 1,2

Martinez-Villareal v. Lewis, 136 L. Ed. 2d 517,

EE Wide Ra dubieebddéccocccesoce 3

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

tee wu duiddeb0d6b00 00 ce. 3, 5,7,8

Ohio v. Roberts, 448 U. S. 56, 65 L. Ed. 2d 597,

Eg tn ‘

State v. Martinez-Villareal, 702 P. 2d 670 (Ariz. 1985) ... 1

Will v. Michigan Dept. of State Police, 491 U.S. 58,

105 L. Ed. 2d 45, 109 S. Ct. 2304 (1989) ............ 8

viii

Younger v. Harris, 401 U. S. 37, 27 L. Ed. 2d 669,

O1 B. Ce. PAS CIGTE) . .nccccccccccccccccsescccees 10

Rule of Court

Fed. Rule App. Proc. 22(a@) .......5seeeeeeeeeeeeeees 5

United States Statutes

2B U. BC. BIBSS .ccsccccccdvccccsvescccccccccsce 6

WU. B.C. GIBBAE) . oc cccccvccscccsvcccsccvesoves 4

BU. B.C. GIBGIED on ccccccccccceseccsccsecccesds 6

2B U. B.C. GATED... oc vcvcvcccccccccccecccvevccees 10

2B U. B.C: GABOGED 2 ncecccsccrcccccccccccscceseons 6

28 U.S. C. §2244(b)(3M(E) .. 66. cece eee ee ee eens 5

BOGGS. GID cccccecccvccccccccvcessceseceses 6

2B U. S.C. SA2SAM) . nc cccccvccccccccccsccececvess 6

Antiterrorism and Effective Death Penalty Act of 1996,

Pub. L.. Mo. 106-192 0... ccccccccccccccccesceces 3,6

State Statutes

Ariz Rev. Stat. Ann. § 13-4021 ..........6- cece eens 3

Ariz Rev. Stat. Ann. § 13-4022 .......... 0s cece ee eeee 3

Ariz Rev. Stat. Ann. § 13-4023 ...... 6.6. - cece e ee eeee 3

Ariz Rev. Stat. Ann. § 13-4024 ....... 6.62 ee cece eeees 3

Treatise

17 C. Wright, A. Miller, & E. Cooper, Federal Practice and

Procedure (2d ed. 1988) ..... 2.0.62 cece cece eee eeee 7

IN THE

Supreme Court of the United States

OcTOBER TERM, 1997

TERRY STEWART, Director

Arizona Department of ee nl et al.,

Petitioners,

vs.

RAMON MARTINEZ-VILLAREAL,

Respondent

SS

BRIEF AMICUS CURIAE OF THE

CRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF THE PETITION FOR

WRIT OF CERTIORARI

SSS

SUMMARY OF FACTS AND CASE

Fifteen years ago, Ramon Martinez-Villareal murdered Jim

McGrew and Fernando Estrada.' He stated later that he killed

them “because of his pure balls, that he was very macho.” State

v. Martinez-Villareal, 702 P. 2d 670, 673 (Ariz. 1985). He was

convicted of these murders and sentenced to death. The

Arizona Supreme Court affirmed. /d., at 681, cert. denied sub

nom. Martinez-Villareal v. Arizona, 474 U. 8. 975 (1985).

Subsequent proceedings through April of 1996 are described

in the Ninth Circuit’s previous opinion, Martinez-Villareal v.

Lewis, 80 F. 3d 1301, 1304-1305 (1996):

1. Rule 37.6 Statement: This brief was written entirely by counsel for amicus, as

listed on the cover, and not by counsel for any party. No outside contributions

were made to the preparation or submission of this brief.

1. State post-conviction review (PCR), denied April 18,

1986.

2. State supreme court review of the denial, denied June 9,

1986.

3. A federal habeas petition, denied for containing unex-

hausted claims.

4. A second federal habeas petition, on which a stay of

execution was issued June 10, 1986 to exhaust state remedies.

5. A second state PCR, denied July 12, 1988.

6. Review of the second state PCR denied by the Arizona

Supreme Court.

7. Certiorari on the second state PCR, denied. Martinez-

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

8. A third federal habeas petition, including for the first

time a claim of incompetence to be executed, dismissed as

unexhausted in 1991.

9. A third state PCR, denied August 13, 1991. The

competency to be executed claim was denied on the ground that

PCR was not the correct procedure for such a claim. See 80

F. 3d, at 1307.

10. Review of the denial of the third state PCR, denied

April 7, 1992.

11. Certiorari on the third state PCR, denied October 5,

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

12. A fourth federal habeas petition, filed March 25, 1993.

denied relief on the guilt phase, granted relief on the penalty

phase, and held the incompetency claim to be premature. The

Ninth Circuit affirmed on guilt and reversed on penalty, thereby

reinstating the judgment. The competency holding had not been

challenged on appeal. 80 F. 3d, at 1309.

)

()

hy

13. This Court denied certiorari to review the Ninth Cir-

cuit’s decision December 9, 1996. Martinez-Villareal v. Lewis,

136 L. Ed. 2d 517, 117 S. Ct. 588.

14. This year, Martinez-Villareal finally invoked the

procedure established by Arizona for adjudicating competency

claims, Ariz. Rev. Stat. Ann. §§ 13-4021 to 13-4024. After four

days of testimony, the trial judge held he was competent.

Combined Alternative Petition 2.

15. On May 16, 1997, the Arizona Supreme Court upheld

this ruling. Jbid.

lo. The same day, the federal district court denied

Martinez-Villareal’s motion to reopen the prior habeas proceed-

ing, holding that such reconsideration was precluded by the

Antiterrorism and Effective Death Penalty Act of 1996, Pub. L.

No. 104-132. Martinez-Villareal v. Stewart, 118 F.3d 628, 630

(CA9 1997) (per curiam).

17. On May 20, 1997, this Court denied certiorari to review

the state competency holding. Martinez-Villareal v. Arizona,

137 L. Ed. 2d 1044, 117 S. Ct. 1840 (1997).

Martinez-Villareal moved in the Ninth Circuit for permission to

file a successive habeas petition, 118 F. 3d, at 629, and pre-

sented an original habeas petition to Circuit Judge Nelson of

that court. Jd., at 634. The Ninth Circuit panel dismissed the

former as unnecessary and transferred the latter to the District

Court. Id., at 634-635.

Terry Stewart, Director of the Arizona Department of

Corrections, respondent in the court below, has petitioned this

Court for relief in several alternative forms, due to the uncer-

tainty as to which form is appropriate and available in this

situation.

SUMMARY OF ARGUMENT

Petitioner has thoroughly presented the compelling case for

review of the judgment below. Amicus CJLF will therefore

limit this brief to three points, each of which requires only a

short discussion.

First, the order to be reviewed here is the Court of Appeals

transfer of the original habeas application to the District Court,

not its statement that permission to file in the District Court was

unnecessary. The order to be reviewed falls within this Court’s

ordinary statutory certiorari jurisdiction.

Second, the decision below is not distinguishable from the

Fifth Circuit’s decision in Jn re Davis, filed after the filing of

the present petition, on any rational basis. The ground on which

Davis purported to distinguish the present case, that the inmate

did not include a competency claim in his first petition, when it

was unripe and could not be adjudicated, is a distinction without

a difference.

Third, a claim of incompetency to be executed is neither a

challenge to the fact or duration of custody nor an attack on the

underlying judgment, and a federal court in habeas corpus lacks

subject matter jurisdiction to adjudicate it.

ARGUMENT

I. Certiorari is an appropriate procedure to review the

Ninth Circuit’s transfer order.

Petitioner has requested several different modes of review

of the Ninth Circuit’s decision in this matter. Although the

others are available if the Court deems necessary, amicus CJLF

submits that the regular statutory writ of certiorari, 28 U. S.C.

§ 1254(1), is available and preferable.

As petitioner notes, see Combined Alternative Petition 21-

22, the statutory prohibition on certiorari review of grant or

denial of leave to file a successive petition is inapplicable. The

Court of Appeals neither denied nor granted the inmate’s

request, but declared permission unnecessary. /d., at A-11; cf.

28 U. S. C. §2244(b)(3)(E). The key point, though, is not the

language of the opinion but the dispositive order of the Court of

Appeals. See Johnson v. De Grandy, 512 U. S. 997, 1003, n. 5

(1994).

“[W]e dismiss as unnecessary Martinez-Villareal’s motion

for authorization to file a petition for writ of habeas corpus

in the district court. We transfer the petition presented to

Judge D. W. Nelson on May 30, 1997 (Docket No. 97-

80249) to the district court pursuant to 28 U. S. C.

$2241(b).” Martinez-Villareal v. Stewart, 118 F. 3d 628,

634-635 (CA9 1997).

The latter subsection reads: “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 fo the district court

having jurisdiction to entertain it.” (Emphasis added.)

If 28 U. S. C. §2244(b)(3)(A) applies and is jurisdictional,

as petitioner contends, then the transfer order was unauthorized.

Furthermore, in the Antiterrorism and Effective Death Penalty

Act of 1996 (AEDPA), Congress amended Federal Rule of

Appellate Procedure 22(a) as follows:

“RULE 22. HABEAS CORPUS PROCEEDINGS AND

SECTION 2255 PROCEEDINGS (Amended. }

“(a) Application for the Original Writ—An application

for a writ of habeas corpus shall be made to the appropriate

district court. If application is made to a circuit judge, the

application witt-ordinarily shall be transferred to the

appropriate district court. If an application is made to or

transferred to the district court and denied, renewal of the

application before a circuit judge ts-not-favored;the-proper

remedy-ts-by shall not be permitted. The applicant may,

pursuant to section 2253 of title 28, United States Code,

appeal to the appropriate court of appeals from the order of

the district court denying the writ.” (As amended Apr. 24,

1996, Pub. L. No. 104-132, § 103, 110 Stat. 1218, deleted

language in strikeout, added language in italics.)

If the second sentence applies and is jurisdictional, as

amicus CJLF intends to argue if this case is accepted on the

merits, neither Judge Nelson nor the Court of Appeals had

jurisdiction to entertain the original writ petition at all. It

should never have been filed.

Where no exception applies, this Court has jurisdiction to

review via certiorari “[c]Jases in the courts of appeals ... (1)...

before or after rendition of a judgment or decree.” 28 U.S. C.

§ 1254; cf. id., § 1257(a) (state courts, final judgments only).

Certiorari jurisdiction thus turns on whether the case was “in”

the Court of Appeals. .

The first issue in this regard arises from the question of

whether the case was properly in the Court of Appeals. That is,

the successive petition limitations of the AEDPA are jurisdic-

tional, and the court of appeals had no authority to act on a

successive petition where their requirements were not met.

The rule on this issue is well settled. Where a lower court

wrongly exercises jurisdiction, this Court has certiorari jurisdic-

tion “not of the merits but merely for the purpose of correcting

the error of the lower court in entertaining the suit.” Bender v.

Williamsport Area School Dist., 475 U. S. 534, 541 (1986)

(quoting United States v. Corrick, 298 U, S. 435, 440 (1936)).”

The second issue deals with the distinction between an

application filed with a circuit judge and one filed in the Court

of Appeals. Jurisdiction to entertain original habeas writs lies

with circuit judges, not courts of appeals. 28 U. S. C.

§§ 2241(a), 2254(a). From the final order of the circuit judge,

an appeal lies to the Court of Appeals. Jd., § 2253. Therefore,

there is no certiorari jurisdiction to directly review the order of

2. Corrick referred to appeal, rather than certiorari, but Bender applied its

principle to a certiorari case.

the circuit judge. 17 C. Wright, A. Miller, & E. Cooper,

Federal Practice and Procedure § 4036, pp. 18-19 (2d ed. 1988).

In the present case, though, the Court of Appeals did not

judge, exercised jurisdiction over the petition and made the

transfer order. The case was therefore treated by the Court of

NS Sena Sales ungpey dae

Here again, the principle stated in Bender, supra, applies.

Whenever the Court of Appeals exercises jurisdiction, rightly

or wrongly, the case is “in” the court of appeals for the purpose

of this Court’s certiorari jurisdiction to review the jurisdictional

question. The Court of Appeals’ action of transferring this case

to the District Court without the finding required by 28 U. S. C.

§ 2244(b)(3)(C) is reviewable in this Court on statutory certio-

rari under 28 U. S. C. § 1254(1).

Il. he decision in this case is not

from the decision of the Fifth Circuit in Davis

on any rational basis.

Petitioner has already briefed the conflict between the

Eleventh and Ninth Circuits, a conflict acknowledged by the

latter. See Martinez-Villareal v. Stewart, 118 F. 3d 628, 632,

n. 4 (1997). Since the filing of the petition, the Fifth Circuit has

spoken on the question. Although the conflict is not as stark,

the Fifth Circuit case is not distinguishable on any rational

In re Davis, No. 97-00312, 1997 U. S. App. LEXIS 22736

(CA5, Aug. 27, 1997) was a motion for permission to file a

second habeas application based on a claim that petitioner was

incompetent to be executed. Jd.; at *2-*3.

Davis held that 28 U. S. C. §2244(b) applies to competency

claims and barred Davis’ claim. /d., at *11-*13. This was so

even assuming “that Davis is seeking to assert his Ford claim

at the first properly available opportunity.” Jd., at *12. Davis

also rejected the constitutional attack on the statute, following

In re Medina, 109 F. 3d 1556, 1564 (CA11 1997).

Davis noted the decision in the present case but purported

to distinguish it on the ground that Davis had not claimed

incompetence to be executed in his first petition, a petition filed

when execution was not imminent. 1997 U. S. App. LEXIS, at

*7-*8.

This purported distinction makes no sense. “The law does

not require the doing of a futile act.” Ohio v. Roberts, 448 U. S.

56, 74 (1980). If Davis and the present case are both correct,

then an inmate who files a pointless claim, which must be

dismissed, Martinez-Villareal, 118 F. 3d, at 633, in his first

federal petition gets a federal reconsideration of his competency

later, while the inmate who quite properly declines to file a

frivolous claim does not and is limited to state remedies. This

cannot be right. Such a rule would be irrational.

While Davis may have avoided a head-on collision with the

calls for resolution on certiorari. Two opinions which reach

opposite results on facts which make no rational difference

create an anomaly in the law just as bad, if not worse, than an

outright split of authority.

Ill. A habeas court lacks subject matter jurisdiction to

review competency to be executed.

Questions of subject matter jurisdiction are not waivable

and must be considered sua sponte if not raised by the parties.

Insurance Corp. of Ireland v. Compagnie des Bauxiies de

Guinee, 456 U. S. 694, 702 (1982). The fact that a court

exercised jurisdiction in a prior case without discussing the

issue does not establish a binding precedent that

exists. Will v. Michigan Dept. of State Police, 491 U. S. 58, 63,

n. 4 (1989); Federal Election Comm'n v. NRA Political Victory

Fund, 513 U. S. 88, 97 (1994).

In Fierro v. Gomez, 77 F. 3d 301, 306 (CA9 1996), vacated

on other grounds in Gomez v. Fierro, 136 L. Ed. 2d 204, 117

S. Ct. 285 (1996), the Ninth Circuit held that method of

execution claims may be brought under 42 U. S. C. § 1983.

That decision undercuts the exercise of habeas jurisdiction in a

competency to be executed case.

The line between habeas and § 1983 has sharpened since

Ford v. Wainwright, 477 U. S. 399 (1986). Heck v. Humphrey,

512 U. S. 477 (1994) and Edwards v. Balisok, 137 L. Ed. 2d

906, 117 S. Ct. 1584 (1997) strongly imply that the two

remedies are mutually exclusive. A challenge to the conviction

and sentence must be brought in habeas, and until it is set aside,

no action lies under § 1983 for a claim inconsistent with the

validity of the judgment. Heck, 512 U. S., at 486-487; Ea-

wards, 137 L. Ed. 2d, at 915, 117 S. Ct., at 1589.

The Ninth Circuit held in Fierro that method of execution

claims are analogous to conditions of confinement claims and

therefore may be brought as § 1983 actions, whereas habeas is

appropriate “whenever the requested relief requires as its

predicate a determination that a sentence currently being served

is invalid or unconstitutionally long.” 77 F. 3d, at 305 (quoting

Young y. Kenney, 907 F. 2d 874, 876 (CA9 1990)). If that is

correct, a competency-to-be-executed claim does not fall within

the habeas jurisdiction at all. Such a claim is neither an attack

on the legality of custody, the subject of habeas at common law,

see Ex parte Watkins, 3 Pet. 193, 202 (1830), nor a collateral

attack on the criminal judgment, the typical function of the writ

today. See Felker v. Turpin, 135 L. Ed. 2d 827, 840, 116 S. Ct.

2333, 2340 (1996).

However, it does not follow that every death row inmate

could bypass state procedures and file his competency claim in

federal court. Substantively, Justice Marshall’s opinion in Ford

is only a plurality in parts III, 1V, and V. See Ford, 477 U. S.,

at 401. The controlling opinion is the one concurring in the

result on the “narrowest grounds.” See Marks v. United States,

430 U. S. 188, 193 (1977). Justice O’Connor’s opinion in Ford

10

states expressly that inadequacy of state remedies is an essential

element of Ford’s case, 477 U. S.. at 427 (opinion concurring in

the judgment in part), and Juice Powell’s opinion implies as

much. /d., at 427 (opinion concurring in part and concurring in

the judgment).

Procedurally, while §1983 suits are not subject to an

exhaustion requirement, Heck, supra, 512 U. S., at 489, they are

subject to the abstention doctrine of Younger v. Harris, 401

U. S. 37 (1971). As a general rule, federal courts do not enjoin

ongoing state proceedings. /d., at 45. Ongoing proceedings

include execution of judgments. Hill v. Martin, 296 U. S. 393,

403 (1935) (under Anti-Injunction Act). The Full Faith and

Credit Act applies to § 1983 actions, giving state court judg-

ments the same preclusive effect as they would have in a

subsequent action in state court. Allen v. McCurry, 449 U. S.

90, 96 (1980); 28 U. S. C. § 1738.

Under this analysis, in any state which has an adequate

procedure for determining competency, the federal courts would

not interfere. They would either abstain under Younger or deny

relief on the ground that one of the elements of the claim,

inadequacy of state process, is missing. Once the state court

determines, with due process, that the inmate is indeed compe-

tent, that finding would be res judicata, and again the federal

court would not interfere. Federal intervention remains

available as a last resort where there is no adequate state

process. See, e.g., Gibson v. Berryhill, 411 U. S. 564, 577

(1973).

They involve matters of life and death, and they go to one of the

most sensitive areas of relations between the state and federal

courts. They are worthy of this Court’s review.

CONCLUSION

A writ of certiorari should be granted.

September, 1997

Respectfully submitted,