Amicus Curiae Brief — Stewart v. Martinez-Villareal
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wOY 2:5 1087
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,
Respondent.
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 PETITIONERS
KENT S. SCHEIDEGGER
CHARLES L. HOBSON*
Criminal Justice Legal Fdn.
2131 L Street
Sacramento, CA 95816
Telephone: (916) 446-0345
Attorneys for Amicus Curiae
Criminal Justice Legal Foundation
* Attorney of Record
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
IN SUPPORT OF THE PETITIONERS
Pursuant to Supreme Court Rule 37.3, the Criminal Justice
Legal Foundation respectfully moves for leave to file the
accompanying brief amicus curiae in support of the petitioners.
Counsel for petitioners has consented, but counsel for respon-
dent has withheld consent.
INTEREST OF AMICUS CURIAE
The Criminal Justice Legal Foundation (CJLF) is a non-
profit California corporation organized to participate in litiga-
tion relating to the criminal justice system as it affects the
public interest. CJLF seeks to bring the due process protection
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.
The Ninth Circuit’s evasion of the successive petition limits
established by Congress transforms the issue of a prisoner’s
iv
competency to be executed into a tool for delay and needless
relitigation. This is contrary to the rights of victims and society
which CJLF was formed to advance.
For the foregoing reasons, amicus requests for leave to file
its brief.
November, 1997
Respectfully submitted,
CHARLES L. HOBSON
Attorney for Amicus Curiae
Criminal Justice Legal Foundation
TABLE OF CONTENTS
SII 6.0.00 co KEUURelsaiedes saniv'c cocccces i
SE ROGEED occ doce dhduetPrecweescsoc. iii
GOED occ tbasecdadecsbtsedccbocces iii
TT Se > a vii
Summary of facts and case ........ 2... 6666s ce cew cues l
i n /i od ohuc ca dcassevedeuecsoesés 4
DE SebGhGGSGebsdedesedesidddddédecdeccoees 6
I
The statutory language is clear and should not be rewritten
in the guise of interpretation....................... 6
II
Congress has plenary authority to reduce or eliminate
federal habeas for state prisoners ................... 9
A. The original understanding .................. 9
B. The “living constitution” ................... 12
Il
A habeas court lacks subject-matter jurisdiction to review
competency to be executed ... 1... cc cece cc ecceees 15
Fe PEED occ rcccccsccccccccocces 15
Se TP GncES bbe bsdeecccccccccceces 17
Dp EE dress ccccccccoceseees 17
2. Method of execution ............sssce0e- 20
(v)
vii
TABLE OF AUTHORITIES
Cases
Addington v. Texas, 441 U. S. 418, 60 L. Ed. 2d 323, 99
he Slee ee ace co seeenees 29
Albernaz v. United States, 450 U. S. 333, 67 L. Ed. 2d 275,
RO FO ES errr 7
Allen v. Duckworth, 6 F. 3d 458 (CA7 1993) .......... 23
Allen v. McCurry, 449 U. S. 90, 66 L. Ed. 2d 308,
et ED bab stances dhawe coceces< 28, 29
Bloom v. Illinois, 391 U.S. 194, 20 L. Ed. 2d 522,
<< ee 13
Brown v. Allen, 344 U. S. 443, 97 L. Ed. 469, 73 S. Ct. 397
Aint. a kcdgasescendeeseceg@ete Cush ered 12
Butler v. McKellar, 494 U. S. 407, 108 L. Ed. 2d 347,
te eo Sea nace seeee 64 12
Carlisle v. United States,5_ U.S.__, 134L. Ed. 2d 613,
EE als a ns cnn cceuneneeeesotes 14
Chapman v. United States, 500 U. S. 453, 114 L. Ed. 2d 524,
el a i oan bi neansoes bweseses s
Edward J. DeBartolo Corp. v. Florida Gulf Coast Building &
Constr. Trades Council, 485 U. S. 568, 99 L. Ed. 2d 645,
SOBG: CUR IOOND fo. 5 eS add acs awe. g
Edwards v. Balisok,520U.S.__, 137 L. Ed. 2d 906,
Tle. Yee ere 18, 19
Ex parte Cabrera, 4 F. Cas. 964 (No. 2,278)
ST MINIS Ab ti tobbi de sieie.s... 0s. ,
Ex parte Dorr, 3 How. (44 U. S.) 103, 11 L. Ed. 514
Chante tee eathesecedevedeccccccccdscs 11
viii
Ex parte Watkins, 3 Pet. (28 U. S.) 193, 7 L. Ed. 650
PPP 21
Fay v. Noia, 372 U. S. 391, 9 L. Ed. 2d 837, 83 S. Ct. 822
‘(. ) EEE eee 12, 13
Federal Election Comm’n v. NRA Political Victory Fund,
513 U.S. 88, 130 L. Ed. 2d 439, 115 S. Ct. 537
CUSED... cccndccncedcobcccucabebenssess coess 16
Felker v. Turpin, 518 U.S.__, 135 L. Ed. 2d 827,
116 S. CX. 23S (IDS) «0. nw evevcccccccccvcevcens 22
Fierro v. Gomez, 77 F. 3d 301 (CA9 1996) ......... 20, 21
Ford v. Wainwright, 477 U. S. 399, 91 L. Ed. 2d 335,
106 BS. Ce. 2995 (ISOS) 2... cc ccccscccvcces 16, 17, 25-29
Gibson v. Berryhill, 411 U. S. 564, 36 L. Ed. 2d 488, 93
B.Ce, AGED CIGTED onc cccccccvcvccccescccsctccce 30
Graham v. Broglin, 922 F. 2d 379 (CA7 1991) ......... 23
Heck v. Humphrey, 512 U. S. 477, 129 L. Ed. 2d 383,
194 B. Ce. ZOGS CIGD) ... cccsccccccccss 17-19, 25, 28
Hill v. Martin, 296 U. S. 393, 80 L. Ed. 293, 56 S. Ct. 278
CUGDS) oo cc cccccccccsvwecccehepeccscctcscsaues 28
Ingram v. Ault, 50 F. 3d 898 (CA11 1995) .........--. 21
Insurance Corp. of Ireland v. Compagnie des Bauxites de
Guinee, 456 U. S. 694, 72 L. Ed. 2d 492, 102 S. Ct. 2099
COTE x: oss ccensoans dd ieeenaeeanaeee 15, 16
Lee v. Weisman, 505 U. S. 577, 120 L. Ed. 2d 467,
eee CT RRSP Ae Ere 10
Marbury v. Madison, 1 Cranch (5 U. S.) 137, 2 L. Ed. 60
OED... .niccensacisvnscovesontaanaies 10
ix
Marks v. United Stat.:, 430 U. S. 188, 51 L. Ed. 2d 260,
EE a eT Se 27
Martinez-Villareal v. Arizona, 520U.S.___,
137 L. Ed. 2d 1044, 117 S. Ct. 1840 (1997) .......... 3
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,519U.S.__,
136 L. Ed. 2d 517, 117 S. Ct. 588 (1996) ............ 3
Martinez-Villareal v. Lewis, 80 F. 3d 1301
ER rr 1,2
Martinez-Villareal v. Stewart, 118 F. 3d 628
SETS Re a 3, 7-9, 24, 25
Medina v. California, 505 U. S. 437, 120 L. Ed. 2d 353,
EE 22, 29
Montana v. United States, 440 U. S. 147, 59 L. Ed. 2d 210,
EE ES 29
Moore v. Pemberton, 110 F. 3d 22 (C47 1997) ..... 23, 24
O’Bryan v. McKaskle, 729 F. 2d 991 (CAS 1984) ...... 21
Patterson v. McLean Credit Union, 491 U. S. 164,
105 L. Ed. 2d 132, 109 S. Ct. 2363 (1989) .......... 14
Planned Parenthood v. Casey, 505 U. S. 833,
120 L. Ed. 2d 674, 112 S. Ct. 2791 (1992) .......... 13
Plaut v. Spendthrift Farm, Inc., 514 U. S. 211,
131 L. Ed. 2d 328, 115 S. Ct. 1447 (1995) ........... 8
Preiser v. Rodriguez, 411 U. S. 475, 36 L. Ed. 2d 439,
5 8 EE 18-20, 25
Roe v. Wade, 410 U. S. 113, 35 L. Ed. 2d 147, 93 S. Ct. 705
(BOTT oc nuns icnnsvunnetadeuel eeeenebtanes 13
Rose v. Lundy, 455 U. S. 509, 71 L. Ed. 2d 379,
102 S. Ct. 1198 (1982) o.oo... ccc ccceeeeeeeeees 17, 24
Samuels v. Mackell, 401 U. S. 66, 27 L. Ed. 2d 688,
91S. CE BAD RR AU TR 28
State v. Martinez-Villareal, 702 P. 2d 670 (Ariz. 1985) ... 1
Sullivan v. Dugger,.721 F. 2d 719 (CAI11 1983) ........ 21
Superintendent, Mass. Correctional Institution at Walpole v.
Hill, 472 U. S. 445, 86 L. Ed. 2d 356, 105 S. Ct. 2768
CDRS) os TE ETRE 23
United States v. French, 25 F. Cas. 1217 (No. 15,165)
(OOD NAL. BOER) i. ee ee THI een lie 11
United States v. LaBonte, 520 U.S. __, 137 L. Ed. 2d 1001,
287 B. Ca, OGFD CITT) w ohn o's lv cee ce ice Eins 00 HHeNe &
United States v. Monsanto, 491 U. S. 600, 105 L. Ed. 2d 512,
i} fee 17 a ewEe US eo err re 6
Will v. Michigan Dept. of State Police, 491 U.S. 58,
105 L. Ed. 2d 45, 109 S. Ct. 2304 (1989) ........... 16
Wisconsin v. Pelican Ins. Co., 127 U. S. 265, 32 L. Ed. 239,
BS, Ch, Re is coves cencnsiancenssacnd eres a)
Wolff v. McDonnell, 418 U. S. 539, 41 L. Ed. 2d 935,
OO G, Co, FRG AI 005.05 bccn cecsceeeseccececes 23
Wright v. West, 505 U. S. 277, 120 L. Ed. 2d 225,
BED B., Ce, BR hod ch chen ct mecdenscccccces 14
Younger v. Harris, 401 U. S. 37, 27 L. Ed. 2d 669,
Eee | ear ty 28
xi
United States Constitution
Wr GB Gg MU UE Nvcedlc cute ddcccccedeca 14
We CE, FE, DS Be rei es ccc cccccccccces 14
eR 8 ARE ee ee arr 12
United States Statutes
4A a eg 7
NE Ry ene > ee 28
SP Is 5 i iW ii cckeweawios ovknte dees 15
EF 24
Se ie ocd oa code cab 06 b¥a600 Glee s 20
ee rey ot ae 17
Antiterrorism and Effective Death Penalty Act of 1996,
a eS TT eters Pete eee 3
Judiciary Act of 1789, 1 Stat. 81 .............0.00005. 9
State Statutes
Ariz. Rev. Stat. Ann. § 13-4021 ..................005. 3
Ariz. Rev. Stat. Ann. § 13-4022 ...............00000ee 3
Ariz. Rev. Stat. Ann. § 13-4023 .................0005. 3
Ariz. Rev. Stat. Ann. § 13-4024 ........... 0.00000 eee. 3
Treatises
4 W. Blackstone, Commentaries (Ist ed. 1769)......... 26
R. Hurd, A Treatise on the Right of Personal Liberty and
on the Writ of Habeas Corpus (Ist ed. 1858) ......... 1]
xii
W. Duker, A Constitutional History of Habeas Corpus
CIGRED ... vcccccacesuasendseasseapennetheenraas 10
Miscellaneous
L. Martin, Genuine Information (1788), reprinted in
3 The Founder’s Constitution (P. Kurland &
RR. Lammas OER. Tiles cut ccmeteaeda tp cccvccccccss 10
Mayers, The Habeas Corpus Act of 1867: The Supreme
Court as Legal Historian, 33 U. Chi. L. Rev. 31
(IOGED ov cccccesctaccdosscacbecedsseeetsdsbae 13
Mello & Duffy, Suspending Justice: The Unconstitutionality
of the Proposed Six-Month Time Limit on the Filing of
Habeas Corpus Petitions by State Death Row Inmates,
18 Review of L. & Social Change 451 (1991) ..... 12, 13
Oaks, Legal History in the High Court—Habeas Corpus,
64 Mich. L. Rev. 451 (1966) ...........cceeeeeees 13
Steicker, Incorporating the Suspension Clause: Is There A
Constitutional Right to Federal Habeas Corpus for State
Prisoners?, 92 Mich. L. Rev. 862 (1994) ............ 14
T. Jefferson, Letter to James Madison, July 31, 1788,
reprinted in 1 The Founder's Constitution
(P. Kurland & R. Lerner eds. 1987) ............++-: 10
The Federalist No. 84 (C. Rossiter ed. 1961)
CA, TRAD oc dtine nd absne be dpnsccerscceys 10
Warren, New Light on the History of the Federal Judiciary
Act of 1789, 37 Harv. L. Rev. 49 (1923) ......... 10, 11
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.
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BRIEF AMICUS CURIAE OF THE
CRIMINAL JUSTICE LEGAL FOUNDATION
IN SUPPORT OF THE PETITIONERS
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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. /d., at 672.
The Arizona Supreme Court affirmed. /d., at 681, cert. denied
sub nom. Martinez-Villareal v. Arizona, 474 U. S. 975 (1985).
Subsequent proceedings through April of 1 996 are described
in the Ninth Circuit’s previous opinion, Martinez-Villareal v.
Lewis, 80 F. 3d 1301, 1304-1305 (CA9 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.
The District Court then withdrew its prior dismissal issal orders,
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.
13. This Court denied certiorari to review the Ninth Cir-
cuit’s decision December 9, 1996. Martinez-Villareal v. Lewis,
S519U.S.__, 136 L. Ed. 2d 517, 117 S. Ct. 588.
14. This year, Martinez-Villareal 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.
16. On June 23, 1997, 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,
520 U.S.__, 137 L. Ed. 2d 1044, 117 S. Ct. 1840 (1997).
The present proceeding involves two applications.
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. /d., at 634. The Ninth Circuit panel dismissed the
former as unnecessary and transferred the latter to the District
Court. /d., at 634-635.
Terry Stewart, Director of the Arizona Department of
Corrections, respondent in the court below, petitioned this
Court for relief in several alternative forms. On October 14,
this Court granted the petition for writ of certiorari.
SUMMARY OF ARGUMENT
The present case revolves around statutory language that is
clear and should not be rewritten in the guise of interpretation.
The canons of statutory construction, though useful for inter-
preting unclear statutes, are not needed when the relevant
language is clear. Therefore, the Court of Appeals should not
have ignored the plain language of the habeas statute in order to
avoid an alleged constitutional problem with the statute.
The Suspension Clause, as originally understood, requires
neither federal habeas for state prisoners nor habeas as a
mechanism of collateral attack on judgments of courts of
competent jurisdiction. The only colorable argument that it
requires either today is the contention that this provision has
somehow “evolved” to mean something different than it did
when it was enacted. Whatever justification there may be for
such constitutional evolution in other contexts, this notion
should not be applied to the question of when, by whom, and
how many times a criminal judgment should be reviewed. This
decision has always been within the legislative power to make.
A habeas court lacks subject-matter jurisdiction to review
a prisoner’s competency to be executed. For state convicts,
Congress has only authorized federal habeas to contest uncon-
stitutional custody. An attack on competency to be executed
contests neither custody nor the validity of the conviction or
sentence, as it only addresses when the inmate is to be executed.
Therefore, the prisoner does not deny the constitutionality of his
custody, and habeas is unavailable.
Ford v. Wainwright does not establish habeas jurisdiction
for competency ied The issue was never addressed by this
Court, and subject-matter jurisdiction cannot be conferred sub
silento.
The line between habeas and 42 U. S.C. § 1983, a 8 pe
forum for competency claims, has sharpened since Ford v.
Wainwright. Heck v. Humphrey and Edwards v. Balisok both
demonstrate that habeas and § 1983 are not interchangeable.
Heck, Edwards, and Preiser v. Rodriguez establish the principle
that an action that is cognizable under habeas cannot also be
maintained under § 1983. The converse is also true. If an
action is proper under § 1983, then it should not be maintained
under habeas. This principle is further supported in various
decisions of the circuit courts.
One of the strongest examples that habeas is not the proper
forum for contesting competency to be executed is found in
method-of-execution cases. Several circuits, most prominently
the Ninth, have entertained § 1983 attacks on a state’s method
of execution, distinguishing habeas because the claim did not
contest the validity or the length of the sentence. If method of
execution is appropriate for a § 1983 action, then when the
execution is to take place is equally subject to § 1983’s jurisdic-
tion.
The procedural differences between habeas and § 1983
make § 1983 the more practical forum for hearing competency
claims. The Ninth Circuit found that the exhaustion require-
ment, the nature of competency claims, and the limits on
successive petitions combined to make competency claims
impossible to raise on habeas, if all procedures were followed.
Instead of using this to justify rewriting the habeas statute, the
Ninth Circuit should have understood that these facts pointed
out that § 1983 was the superior forum for the prisoner’s
competency claim. Since § 1983 does not have an exhaustion
requirement, and jurisdiction for a § 1983 action does not
depend upon the timing of the habeas petition, § 1983 litigation
may proceed in a more expeditious manner than under the Ninth
Circuit’s interpretation of habeas corpus.
The prisoner’s remedy under § 1983 is both narrow and
limited. An inadequate state remedy is a necessary component
of any federal action under Ford v. Wainwright. None of the
Ford opinions addressed whether the prisoner was actually
competent to be executed. The case focused exclusively on the
sufficiency of the state procedures for determining competency
to be executed. The two concurring opinions, which provide
Once a state provides the minimum necessary procedural
guarantees finding that the prisoner is competent to
aencated connot be attacknd tn federal evutt. The abstention
doctrine prevents federal courts from intervening before the
resolution of any state competency proceedings. Once the state
proceedings are concluded, res judicata and collateral estoppel
will preclude competency from being relitigated in federal
to the states.
ARGUMENT
I. The statutory language is clear and should not be
rewritten in the guise of interpretation.
The present case centers on statutory interpretation.
Although statutory interpretation can be an arcane, Tule-laden
task, it does not have to be when the interpreting court Is
confronted with clear statutory language. Canons of construc-
tion and other devices may aid this Court in clarifying ambigu-
ous statutory language, but cannot alter the plain meaning of an
act of Congress. “We respect these canons, and they are quite
often useful in close cases, or when statutory language 1s
tive canon{s are] not a license for the judiciary to rewrite
language enacted by the legislature.’ ” United States v. Mon-
santo, 491 U. S. 600, 611 (1989) (quoting United States v.
Albertini, 472 U. S. 675, 680 (1985)).’
The relevant statutory language in the present case is
unambiguous. Section 2244(b)(2) states in the clearest terms
the general rule against successive petitions and its narrow
exceptions:
“(2) A claim presented in a second or successive habeas
corpus application under section 2254 that was not pre-
sented 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 fact-
finder would have found the applicant guilty of the
underlying offense.”
The Court of Appeals ignored the clear language of
§ 2244(b). Its ruling that exhaustion principles justify exempt-
ing competency-to-be-executed claims from § 2244(b)(2), see
Martinez-Villareal v. Stewart, 118 F. 3d 628, 632-634 (CA9
1997), cannot be justified by the statutory text. Section
2244(b)\(2) prohibits presenting a previously unpresented
“claim ....” It makes no distinction concerning the type of
claim. The only exceptions, found in § 2244(b)(2)(A)-(B), do
2. The fact that the present case is at least tangentially criminal does not change
the analysis. The rule of lenity applies to “the substantive ambit of criminal
prohibitions” and their penalties. Albernaz v. United States, 450 U. S. 333, 342
(1981). The limits on successive petitions in 28 U. S. C. § 2244(b) do not
belong to either category.
not apply to competency-to-be-executed claims. See id., at 631.
There are no other exceptions. “Claim” means claim. “We do
not start from the premise that this language is imprecise.
Instead, we assume that in drafting this legislation, Congress
said what it meant.” United States v. LaBonte,520 U.S. ___,
137 L. Ed. 2d 1001, 1010, 117 S. Ct. 1673, 1677 (1997)
(emphasis added).
The Ninth Circuit justified its position with the maxim that
courts should construe statutes to avoid “ ‘serious constitutional
*” Martinez-Villareal, 118 F. 3d, at 632 (quoting
Edward J. DeBartolo Corp. v. Florida Gulf Coast Building &
Constr. Trades Council, 485 U. S. 568, 575 (1988)). This rule
cannot overcome the plain letter of an act of Congress. There-
fore, “the Court will construe the statute to avoid such [constitu-
tional] problems unless such construction is plainly contrary to
the intent of Congress.” DeBartolo Corp., 485 U. S., at 575.
This is not an invitation to rewrite unambiguous statutory text.
“The canon of construction that a court should strive to interpret
a statute in a way that will avoid an unconstitutional construc-
tion is useful in close cases, but it is ‘ “not a license for the
judiciary to rewrite language enacted by the legislature.” * ”
Chapman v. United States, 500 U. S. 453, 464 (1991); see also
Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 216-217 (1995)
(declining to adopt unreasonable construction to avoid constitu-
tional question).
The text of § 2244 cannot be ignored. If there is a constitu-
tional problem, it must be met head on. Fortunately, this issue
is easily addressed. The Ninth Circuit’s concerns with
§ 2244(b)’s constitutionality are vastly overstated. Any
constitutional attack on Congressional power to limit habeas
corpus is spurious. See part II, post. The canon of construction
invoked by the Court of Appeals is meant to avoid serious
constitutional problems, see DeBartolo Corp., 485 U. S., at 575,
not spurious ones. Congress’ unambiguous language should be
enforced as written.
Il. Congress has plenary authority to reduce or eliminate
federal habeas for state prisoners.
The majority of the Court of Appeals panel thought there
was a substantial constitutional question to be avoided by its
extremely strained construction of the statute in question.
Martinez-Villareal v. Stewart, 118 F. 3d 628, 632 (CA9 1997).
The concurring opinion went so far as to declare the statute
unconstitutional. /d., at 635 (Nelson, J., concurring in the
judgment). These opinions are remarkable for their complete
lack of any discussion of or authority for the supposed constitu-
tional requirement.
Upon examination, the constitutional question vanishes.
Congress has no obligation whatsoever to provide federal
habeas relief for state prisoners. It has absolutely banned such
relief before, and it could do so again. A fortiori, it can enact
lesser limitations.
A. The Original Understanding.
The First Congress had this to say about federal habeas for
state prisoners:
“Provided, That writs of habeas corpus shall in no case
extend to prisoners in gaol, unless where they are in cus-
tody, under or by colour of the authority of the United
States, or are committed for trial before some court of the
same, or are necessary to be brought into court to testify.”
Judiciary Act of 1789, ch. 20, § 14, 1 Stat. 81, 82.
This Act “was passed by the first Congress assembled under
the Constitution, many of whose members had taken part in the
framing of that instrument, and is contemporaneous and
weighty evidence of its true meaning.” Wisconsin v. Pelican
Ins. Co., 127 U. S. 265, 297 (1888).
Between this Act and the present question, there are only
three logical possibilities. Either (1) the Suspension Clause
does not require habeas corpus in federal courts for state
10
prisoners; (2) the state-prisoner limitation in the Act was
unconstitutional; or (3) the limitation was constitutional when
enacted, but the Suspension Clause has since “evolved” so that
Congress could not enact the same statute today. To establish
the first possibility, it is necessary only to refute the other two.
The contemporary understanding of the Suspension Clause
rests not only on the clear wording of the Judiciary Act,’ but
also from the lack of controversy surrounding it. Cf. Lee v.
Weisman, 505 U. S. 577, 626 (1992) (Souter, J., concurring)
(Alien and Sedition Acts, which were hotly contested, are not
an authoritative guide to First Amendment). The high regard
for the writ of habeas corpus at the time of the Constitution is
well known. See, e.g., The Federalist No. 84, pp. 511-512 (C.
Rossiter ed. 1961) (A. Hamilton); L. Martin, Genuine Informa-
tion (1788), reprinted in 3 The Founders’ Constitution 328 (P.
Kurland & R. Lerner eds. 1987); T. Jefferson, Letter to James
Madison, July 31, 1788, reprinted in 1 The Founders’ Constitu-
tion, at 476. It is simply inconceivable that a clear and blatant
violation of a cherished right would have been enacted without
controversy and uniformly enforced by the courts. Yet that is
what happened with this provision.
Amidst the controversies that swirled around the Judiciary
Act, section 14 was a calm pool of consensus. The section was
enacted by the Senate from the first draft, with only one minor
amendment relating to a different writ. Warren, New Light on
the History of the Federal Judiciary Act of 1789, 37
Harv. L. Rev. 49, 95 (1923). The main debate in the House was
3. Duker, after examining the history of the clause, concludes the original intent
was just the opposite, “to restrict Congress from suspending state habeas for
federal prisoners... .” W. Duker, A Constitutional History of Habeas Corpus
155 (1980) (emphasis added).
4. Marbury v. Madison, | Cranch 137 (1803) did, of course, hold a portion of the
same act unconstitutional. That case, however, involved an application that was
anything but clear from the face of the language and probably never occurred
to Congress.
11
whether to create lower federal courts at all. See id., at 123-131.
The state-prisoner limitation was invoked in Ex parte
Cabrera, 4 F. Cas. 964 (No. 2,278) (CCD Pa. 1805). Cabrera
was a secretary to the Spanish legation charged with forgery in
state court in Pennsylvania. Ibid. He claimed diplomatic
immunity, embodied in a federal statute. /d., at 964-965.
Justice Bushrod Washington, sitting as Circuit Justice, reluc-
tantly decided the circuit court had no jurisdiction. /d., at 965.
First, he noted that the lower federal courts had no jurisdiction
at all except what is conferred on them by statute. /bid. There
is no hint that a different rule applies to habeas corpus. Section
14 of the Judiciary Act was then clear and on point. /d., at 966.
Judge Peters concurred. /d., at 965.
Justice Washington was a member of the Marbury Court
and obviously aware of that then-recent decision. He could not
have doubted his authority to declare this limitation unconstitu-
tional if he thought it were. It seems that the constitutionality
of the limitation was clear, whatever his doubts about its
wisdom. See id., at 966. Accord, United States v. French, 25
F. Cas. 1217, 1217 (No. 15,165) (CCD N.H. 1812).
The state-prisoner limitation was so well settled that it did
not reach this Court for over 50 years. Ex parte Dorr, 3 How.
103 (1845) involved a defendant convicted of treason against
the State of Rhode Island. He moved for an original writ of
habeas corpus in the Supreme Court. /d., at 104. The Court
held it had no jurisdiction due to the state-prisoner limitation of
section 14. /d., at 105. “Neither this nor any other court of the
United States, or judge thereof, can issue a habeas corpus to
bring up a prisoner, who is in custody under a sentence or
execution of a state court, for any other purpose than to be used
as a witness.” Jbid.
The validity of the state-prisoner limitation appears to have
been universally acknowledged. Amicus has not found a single
doubt expressed on the subject by any antebellum authority.
See, e.g., R. Hurd, A Treatise on the Right of Personal Liberty
and on the Writ of Habeas Corpus 154 (Ist ed. 1858). Any
12
contention that the Suspension Clause required federal habeas
for state prisoners at the time of the Founding would appear to
be utterly unsupportable.
B. The “Living Constitution.”
A law review article written in anticipation of the present
legislation takes the position that the Suspension Clause forbids
time limits on habeas corpus petitions by state prisoners
collaterally attacking their convictions. Mello & Duffy,
Suspending Justice: The Unconstitutionality of the Proposed
Six-Month Time Limit on the Filing of Habeas Corpus Petitions
by State Death Row Inmates, 18 Review of L. & Social Change
451 (1991). Yet even this partisan article has to admit that the
clause as originally enacted applied only to federal prisoners.
Id., at 462. The only ground these authors can find to make
their stand is the last redoubt of judicial autocracy: the “living
Constitution.” /d., at 472.
The Suspension Clause is not the only provision of the
Constitution at issue in this case. Article I, section 1 provides
“All legislative powers herein granted shall be vested in a
Congress of the United States ....” The capacity to make the
policy choices at issue in this case was originally within the
legislative power. By what means did it cease to be? The
Constitution has not been amended to make that change.
Justices of this Court supporting broad federal habeas for
state prisoners have repeatedly insisted that the Reconstruction
Congress made that choice. See Brown v. Allen, 344 U. S. 443,
499 (1953) (opinion of Frankfurter, J.); Fay v. Noia, 372 U. S.
391, 417-418 (1963), overruled on other grounds in Coleman v.
Thompson, 501 U. S. 722, 750 (1991); Butler v. McKellar, 494
U. S. 407, 427-430 (1990) (Brennan, J., dissenting). Assuming
this to be true for the sake of argument, does a policy choice
made in a time of grave national crisis forever bind future
Congresses, so that policy cannot be adjusted to meet changing
times? Particularly where the critical question is confidence in
state courts, see Butler, 494 U. S., at 430 (dissent), the policy-
13
maker should be able to make adjustments as state courts grow
more worthy of confidence.
To be sure, there are a few decisions of this Court that
construe constitutional provisions to forbid practices that would
adopted. See, e.g., Bloom v. Illinois, 391 U. S. 194, 210-211
(1968) (requiring jury trial for two-year contempt punishment);
Roe v. Wade, 410 U. S. 113, 174-177 (1973) (Rehnquist, J.,
dissenting) (numerous abortion laws in effect at time of
Fourteenth Amendment).
Whatever legitimacy such decisions may have in the realm
of the most intimate personal decisions, see Planned Parent-
hood v. Casey, 505 U. S. 833, 852-853 (1992) (lead opinion),
or in striking down practices acknowledged to be tyrannical
even at common law, see Bloom, 391 U. S., at 198-199, n. 2, the
issue of federal habeas for state prisoners is one of an entirely
different character. It does not concern what acts will be legal
or illegal. It does not concern what protections defendants will
receive at trial or in subsequent proceedings. It concerns only
when, by whom, and how many times that trial or proceeding
will be reviewed, decisions which have always been within the
legislative power to make.
The assertion has repeatedly been made that the constitu-
tional mandate has “evolved” since the enactment of the
Suspension Clause. See, e.g., Mello and Duffy, supra, 18
Review of L. & Social Change, at 462. What is really sought
here, however, is not evolution, but the Big Bang.
No decision of this Court holds that Congress has any
obligation to extend federal habeas to state prisoners. The
principal implication that it might is a dictum in a since-over-
ruled case. See Fay, supra, 372 U. S., at 406.° There is no
5. Not only is Fay an overruled case, but its historical dissertation has long since
been discredited. See Mayers, The Habeas Corpus Act of 1867: The Supreme
Court as Legal Historian, 33 U. Chi. L. Rev. 31, 32 (1965); Oaks, Legal History
in the High Court—Habeas Corpus, 64 Mich. L. Rev. 451, 459 (1966).
14
historical, textual, or controlling precedential support for an
argument that Congress has less than complete authority over
these matters. Cf. Carlisle v. United States,517U.S.__, 134
L. Ed. 2d 613, 626-627, 116 S. Ct. 1460, 1467-1468 (1996).
The history of federal habeas for state prisoners is not an
evolution of a constitutional doctrine but the evolution of a
statutory enactment.’ That evolution has occurred through a
combination of expansive decisions by this Court with
Congress’ failure to abrogate them. See Wright v. West, 505
U. S. 277, 305-306 (1992) (O’Connor, J., concurring in the
judgment). But this Court’s traditional reluctance to overrule
its statutory construction precedents is premised squarely on the
fact that Congress can abrogate them. Patterson v. McLean
Credit Union, 491 U. S. 164, 172-173 (1989). To say at this
point that these decisions have been suddenly removed from the
legislative power would be playing a constitutional shell game
with the American people.
In Wright v. West, No. 91-542, the proponents of broad
federal habeas vehemently asserted that the question belonged
to Congress and not the judiciary. Brief of the American Bar
Assn. as Amicus Curiae 7; Brief of American Civil Liberties
Union as Amicus Curiae 2-3; Brief of Gerald Gunther ef ai. as
Amici Curiae 53-55; Brief of Benjamin R. Civiletti et al. as
Amici Curiae 29-30. The stalemate in that case effectively told
the American people that the judiciary could not help them;
those seeking justice for murder victims must turn to Congress
to lift capital punishment out of the habeas quicksand. They
6. A tortured argument for a constitutional mandate for federal habeas based on
the Fourteenth Amendment can be found in Steicker, Incorporating the
Suspension Clause: Is There A Constitutional Right to Federal Habeas Corpus
for State Prisoners?, 92 Mich. L. Rev. 862 (1994). The argument founders on
the text of the Amendment. It unequivocally obligates only the states, U. S.
Const., Amdt. 14, § 1, and empowers Congress rather than limiting it. /d., § 5.
Steiker acknowledges this, and then goes off to attempt to justify his thesis
despite the clear text. 92 Mich. L. Rev., at 398-899. This is, in effect, an
admission that he is calling upon courts to rewrite the Constitution rather than
enforce it.
15
did. It did. For this Court to do an about-face now and declare
that these decisions are not within the legislative power after all
would be a massive breach of faith with the American people.
Federal habeas for state prisoners was a subject entirely
within the legislative power in 1789, and it remains so today.
The Suspension Clause has no application to this case.
Ill. A habeas court lacks subject-matter jurisdiction to
review competency to be executed.
For state convicts, Congress has authorized federal habeas
“only on the ground that he is in custody in violation of the
Constitution of the United States.” 28 U. S. C. §2254(a)
(emphasis added). A prisoner’s attack on his competency to be
executed pursuant to a valid state conviction and sentence does
not come within the subject-matter jurisdiction of federal
habeas corpus, because the claim does not contest the constitu-
tionality of his custody. Since he does not challenge the validity
of his conviction or sentence, the prisoner is precluded from
attacking his competency to be executed on federal habeas
without recourse. A remedy under 42 U. S. C. § 1983 remains
open to vindicate his Eighth Amendment interest in his compe-
tency to be executed. As amicus will demonstrate, this relief is
narrow, and dependent upon the absence of adequate state
procedures for determining his competency.
A. The Initial Question.
Subject-matter jurisdiction is indispensable to any litigation
before any federal court. “Federal courts are courts of limited
jurisdiction.” Insurance Corp. of Ireland v. Compagnie des
Bauxites de Guinee, 456 U. S. 694, 701 (1982). Therefore,
subject-matter jurisdiction “is an article ITI as well as a statutory
requirement; it functions as a restriction on federal power, and
contributes to the characterization of the federal sovereign.”
Id., at 702.
16
Important consequences flow from these principles. See
ibid. Parties may neither consent to nor waive subject-matter
jurisdiction, and estoppel principles do not apply to this issue.
Ibid. Therefore,
“a court, tnctinding ehh tggelidte eusut, will silos lett of
subject-matter jurisdiction on its own motion. ‘[T]he rule,
springing from the nature and limits of the judicial power of
the United States is inflexible and without exception, whict
requires this court, of its own motion, to deny its jurisdic-
tion, and, in the exercise of its appellate power, that of all
other courts of the United States, in all cases where such
jurisdiction does not affirmatively appear in the record.’ ”
Ibid. (quoting Mansfield, C. & L. M. R. Co. v. Swan, 111
U. S. 379, 382 (1884)).
This Court should decide the subject-matter jurisdiction
issue before any other issue. This case involves a substantial
invasion of the state’s prerogative in criminal law, enforcing the
penalty for its most serious crime. As an order of a federal
court is invalid without subject-matter jurisdiction, /nsurance
Corp., supra, 456 U. S., at 701, a federal court should be
particularly sure of its subject-matter jurisdiction before
disrupting a capital sentence as /in the present case.
The fact that in Ford v. Wainwright, 477 U. S. 399 (1986)
this Court upheld a habeas petition on competency-to-be-
executed grounds does not establish binding precedent that
subject-matter jurisdiction exists. Ford only examined the
propriety of state procedures; it did not address whether a
habeas court had subject-matter jurisdiction to determine a
prisoner’s competency to be executed. See post, at 26-27.
Jurisdictional issues are not decided sub silento; the issue is
open until this Court directly confronts it. See 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). It is now time to confront subject-matter jurisdic-
tion.
17
B. No Jurisdiction.
When the prisoner attacks his competency to be executed,
he does not attack the legality of his conviction or sentence.
“Rather, the only question is not whether, but when, his
execution may take place.” Ford, supra, 477 U. S., at 425
(Powell, J., concurring in part and concurring in the judgment)
(emphasis in original). This distinction removes the prisoner’s
action from habeas corpus jurisdiction and places it within the
subject matter of the federal civil rights statute, 42 U. S. C.
§ 1983. Although not stated expressly by this Court, this
principle follows from its cases distinguishing habeas and
§ 1983, and from lower court decisions that demonstrate an
; Jing of this distincti
1. Heck and Edwards.
In the years since Ford v. Wainwright was decided, the line
between habeas and § 1983 has sharpened. Heck v. Humphrey,
512 U. S. 477 (1994) was decided “at the intersection of the two
most fertile sources of federal-court prisoner litigation— . . . 42
U.S. C. § 1983, and the federal habeas corpus statute ....” /d.,
at 480. Petitioner Heck was convicted of voluntary manslaugh-
ter. While his appeal was pending, Heck filed a § 1983 action
for money damages against several local prosecutors and a state
police investigator, alleging improper investigation leading to
his arrest, the knowing destruction of exculpatory evidence, and
using an improper voice identification procedure at trial. /d., at
478-479. The action did not ask for injunctive relief or release
from custody. /d., at 479.
Petitioner’s case touched on two very different actions.
Both § 1983 and habeas “provide access to a federal forum for
claims of unconstitutional treatment at the hands of state
officials, but they differ in their scope and operation.” /d., at
480. Thus, while exhaustion of state remedies is a prerequisite
to federal habeas corpus, see Rose v. Lundy, 455 U.S. 509, 510
(1982), § 1983 does not require exhaustion, even when a state
prisoner is the plaintiff. See Heck, 512 U. S., at 480. Since
18
Heck did not ask to have his sentence vacated or conviction
overturned, the rule of Preiser v. Rodriguez, 411 U. S. 475,
489-490 (1973), that habeas was the exclusive remedy for such
claims, was not squarely on point. See 512 U. S., at 481.
Preiser did not create an exhaustion requirement for certain
§ 1983 actions: “it merely held that claims by state prisoners
are not cognizable under that provision, and must be brought in
habeas corpus proceedings, which do contain an exhaustion
requirement.” J/bid. Furthermore, in dictum the Preiser Court
stated that a prisoner who only sought damages would never
have to exhaust state remedies before filing the § 1983 action.
Ibid. Yet the real differences between habeas and § 1983 led
the Heck Court to abandon the Preiser dictum when the damage
claim rests on a claim that the prisoner’s conviction is invalid.
See id., at 481-482.
The Heck Court did not have to create an exhaustion
requirement in order to depart from the Preiser dictum. It
instead turned back to Preiser’s original premise, and found no
jurisdiction to rule on the substance of petitioner’s claims.
“The issue with respect to monetary damages challenging
conviction is not, it seems to us, exhaustion; but rather, the
same as the issue was with respect to injunctive relief
challenging conviction in Preiser: whether the claim is
cognizable under § 1983 at all. We conclude that it is not.”
Id., at 483.
» Heck still had the means for obtaining relief. He first had
to successfully set aside his conviction before he could bring his
§ 1983 action. Jd., at 486-487. This sharpened the line between
§ 1983 and habeas corpus. Section 1983’s tort action is not a
proper vehicle for attacking criminal judgments. See id., at 486.
The division between habeas corpus and § 1983 was
reinforced in Edwards v. Balisok, 520 U.S.__, 137 L. Ed. 2d
906, 117 S. Ct. 1584 (1997), which extended Heck to § 1983
suits challenging the deprivation of good time credits. Edwards
filed a § 1983 action for damages, claiming that the use of
improper procedures deprived him of due process. /d., at 912,
19
117S. Ct., at 1586. He did not claim that the decision depriv-
ing him of the credits reached a wrong result. Jbid., 117 S. Ct.,
at 1586-1587. The Ninth Circuit held that this sub-
stance/procedure distinction was sufficient to distinguish Heck.
Id., at 913, 117 S. Ct., at 1587.
The Edwards Court gave Heck its properly broad, natural
reading. If “the nature of the challenge to the procedures could
be such as necessarily to imply the invalidity of the judgment,”
ibid., then Heck applied, and the underlying judgment had to be
overturned before any § 1983 action. Allowing the mere
implication of an attack on the validity of a sentence to remove
an action from § 1983 underscores the sharp distinction
between § 1983 and collateral attacks on convictions in habeas
corpus.
Edwards and Heck clarified and expanded the principles set
forth in Preiser v. Rodriguez. Preiser held that habeas was the
exclusive remedy for a state petitioner challenging the fact or
the duration of his confinement, in spite of the broad language
of § 1983. See 411 U. S., at 488-490. While Preiser estab-
lished some separation between habeas and § 1983, the distinc-
tion was not always clear. Preiser’s line between habeas and
§ 1983 was considerably less clear where damages, and not
release from confinement, was concerned. See id., at 494;
Heck, 512 U. S., at 481-482. Heck clarified and reinforced the
distinction between habeas and § 1983 by refusing to follow
this dictum. See 512 U. S., at 482. The Preiser Court saw its
holding as limited to actual attacks on the duration or legality of
confinement. Heck and Edwards expanded Preiser’s limits to
a much larger universe.
Preiser, Heck, and Edwards all deal with matters where
habeas is the proper remedy to the exclusion of § 1983. The
logic of these cases applies with equal force in the opposite
direction; there are many actions for which § 1983 is the proper
vehicle to the exclusion of habeas corpus. As Preiser noted,
habeas is much more specific and narrow than § 1983. Preiser,
411 U. S., at 489. While the scope of habeas has expanded
20
considerably from its original bounds, it is still true that a
habeas petitioner’s “grievance is that he is being unlawfully
subjected to physical restraint, and in each case habeas corpus
has been accepted as the specific instrument to obtain release
from such confinement.” /d., at 486. While habeas may have
been extended to challenge “less obvious restraints,” id., at 486,
n. 7, it is still tethered to its historic core function. “But those
cases marked no more than a logical extension of the traditional
meaning and purpose of habeas corpus—to effect ré/ease from
illegal custody.” /bid. (emphasis added).
Any relief other than release from illegal custody must be
found from a source other than the writ. Thus damages are not
available on habeas corpus. See id., at 494. The a
specific habeas corpus and the broad, general § 1983 are .
viewed as mutually exclusive remedies; relief that is available
under one is not available under the other.’
The distinction between habeas and § 1983 is both real and
important. The two actions operate under verY different
procedural regimes. Habeas contains procedural “emt
igned to preserve the integrity of state justice syStems, —
as the exhaustion requirement. See id., at 491. Section 19
also has its own requirements, such as res judicats, which
applies with less strength on habeas corpus. See id.» at 497;
see 28 U. S. C. §2254(d) (increased, but not cc res
judicata effect for prior state determinations).
2. Method of execution.
Ironically, one of the strongest demonstrations that —
is not the proper forum for contesting wn ~li ne
executed comes from the Ninth Circuit. In Fierro ¥- th
F. 3d 301, 306 (CA9 1996), vacated on other grounds in
7. The Preiser Court noted that prison conditions might be challenged under beth
§ 1983 and habeas. See id., at 499. The present case docs’ yon sew
doubtful dictum. Preiser’s characterization of habeas as limited, narrow
exclusive remains as true today as it did then.
21
v. Fierro, 519 U.S. __, 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. This necessarily
undercuts the exercise of habeas jurisdiction in a competency-
to-be-executed case.
In Fierro, the state claimed that habeas was the exclusive
method for challenging method of execution. 77 F. 3d, at 304.
The Ninth Circuit's rejection of this argument illuminates the
proper line between habeas corpus and 42 U. S. C. § 1983
actions.
“Our court has defined the appropriate situation in
which to seek habeas relief as ‘whenever the requested
relief requires as its predicate a determination that a sen-
tence currently being served is invalid or ituti
long.’ Young v. Kenny, 907 F. 2d 874, 876 (9th Cir. 1989),
cert. denied, 498 U.S. 1126, 111 S. Ct. 1090, 112 L. Ed. 2d
1194 (1991). Plaintiffs here do not allege that their sen-
tences are invalid. Nor do they allege that their sentences
are unconstitutionally long. They seek only to prevent their
executions by lethal gas.” /d., at 305.
As the Fierro Court found methods of execution analogous
to challenging conditions of confinement, ibid., there was no
reason to transform plaintiffs’ claim into a habeas petition. See
id., at 306. Other circuit courts have also entertained § 1983
actions attacking method of execution. See Ingram v. Ault, 50
F. 3d 898, 899 (CAI1 1995) (per curiam); O'Bryan v.
McKaskle, 729 F. 2d 991, 992-993 (CAS 1984) (per curiam);
Sullivan v. Dugger, 721 F.2d 719, 720 (CA11 1983) (section
1983 appropriate challenge to method of execution as prisoner
does not contest “the fact or nature of his sentence or the state’ s
right to execute him”).
Under this reasoning, a competency-to-be-executed claim
does not fall within habeas jurisdiction at all. This claim does
not attack the legality of commitment, the common law function
of habeas. See Ex parte Watkins, 3 Pet. 193, 202 (1830). Nor
does it collaterally attack the underlying criminal judgment,
a
22
ich is now the writ’s chief function. See Felker v. Turpin,
19U:8 at L. Ed. 2d 827, 840, 116 wt meeps
(1996). The prisoner is not contesting whether he is going to's
executed, but whether he is currently competent ater i
sentence. Unlike a collateral attack on the validity © a
sentence, whether the prisoner is to be executed is not at issue;
the only question is when he will serve his sentence. —
addresses the legality of the sentence, not the timing ©
execution.
3. Other decisions.
Other decisions from the circuit courts further demonstrate
that habeas and § 1983 are not interchangeable. When con-
fronted with a prisoner who wished to challenge his ineligibility
for work release on habeas corpus, Judge Posner presented an
elegant framework for determining whether an action belong
in habeas or § 1983. ine _
. the following generalization.
vronet is seeking what can fairly be desribed as 8 quan-
: ; that he
be the case, the program or location or environment
is challenging ig more restrictive than the alternative that he
23
seeks.” Graham v. Broglin, 922 F.2d 379, 381 (CA7 1991)
(emphasis added).
As Judge Posner also noted, “[hjabeas corpus is not a
compensatory remedy. The object is not to make whole
someone who has suffered a loss; it is to determine whether a
person is being confined in violation of basic norms of legality.”
Allen v. Duckworth, 6 F. 3d 458, 460 (CA7 1993). Excessive
delay in resolving the prisoner’s appeal of his conviction was
not cognizable on habeas corpus because “(t]he petitioner was
duly convicted, and the conviction upheld, if belatedly, in an
appellate decision not claimed to be infected by any error that
would justify his release on habeas corpus.” /bid. Habeas and
§ 1983 are separate entities. If one is unavailable, the other
cannot act as its substitute. Therefore, “[hJabeas corpus does
not provide a substitute for a damages suit even if such a suit
would not be possible in the circumstances ....” /d., at 461.
In Moore v. Pemberton, 110 F. 3d 22, 23 (CA7 1997) (per
curiam), the Seventh Circuit admonished the District Court for
transforming a “frivolous” and “malicious” § 1983 suit into a
meritless habeas action.’ /bid. The District Court dismissed the
pro se § 1983 action without ruling on the merits, but gave the
prisoner “ ‘a reasonable period to channel his claims into a
habeas action,’ ” claiming violations of Wolff v. McDonnell,
418 U. S. 539 (1974) or Superintendent, Mass. Correctional
Institution at Walpole v. Hill, 472 U. 8. 445 (1985). Moore,
110 F. 3d, at 23 (emphasis in original). After the prisoner
complied with the District Court’s invitation, the court dis-
missed the amended petition on its merits. Jbid. As the
Seventh Circuit properly noted,
9. The prisoner claimed that he was punished for disciplinary violations although
he was not a prisoner on the date indicated on the disciplinary ticket. 110 F. 3d,
at 23. His penalty was a verbal reprimand and loss of commissary privileges for
two weeks. /bid. His § 1983 action asserted a due process violation, and asked
for $351,000 in compensatory and $3.2 million in punitive damages. See ibid.
The Court of Appeals found the amount of damages “malicious” and the action
“frivolous,” since Moore “did not lose any liberty or property ....” /bid.
24
“As a petition for a writ of habeas corpus, Moore’s claim
suffers from a deeper defect, which should have prevented
the judge from resolving the claim. Moore does not seek
release from custody and therefore cannot proceed under 28
U.S. C. § 2254. It is not enough to be ‘in custody’; unless
one is attacking the legality, duration, or (rarely) severity of
that custody, a petition under § 2254 is improper.” Ibid.
Transforming a § 1983 action into a habeas petition was
more than a matter of form, it “converted a weak civil suit into
an untenable demand for collateral review.” /Jbid. (emphasis
added). There are many real differences between the two
actions, see id., at 23-24, making it impossible to treat them
interchangeably.
4. Most practical forum.
The procedural differences between habeas and § 1983 also
make § 1983 the more practical forum for hearing competency-
to-be-executed claims. This is demonstrated by one of the
Court of Appeals’ primary justifications for its holding. The
Ninth Circuit found that it is effectively impossible for a habeas
court to hear a competency claim if the rule against successive
petitions is in effect. See Martinez-Villareal v. Stewart, 118
F. 3d 628, 633-634 (CA9 1997). Instead of justifying a tortured
construction of the statute, see ibid., this procedural fact
demonstrates § 1983’s superiority as a forum for adjudicating
competency claims.
The Ninth Circuit saw this problem arising from the
exhaustion requirement, see 28 U. S. C. §2254(b)(1); Rose v.
Lundy, 455 U. S. 509, 522 (1982), and the special status of the
competency-to-be-executed claim. In order for a competency
claim to be exhausted, the state must issue a warrant of execu-
tion so that the prisoner may contest his competency in state
court. See 118 F. 3d, at 633. If the prisoner files his first
the automatic stay of execution issued upon filing the petition
renders the “once-ripe claim premature” leading to its dismissal.
25
Id., at 634. If the competency claim is filed after the first
habeas petition, it will be barred as successive. See ibid.
Section 1983 avoids these problems. It has no exhaustion *
requirement. See Heck v. Humphrey, 512 U. S. 477, 489
(1994). Since jurisdiction for a § 1983 action does not depend
upon the timing of a habeas petition, see Preiser v. Rodriguez,
411 U. S. 475, 499, n. 14 (1973) (prisoner may simultaneously
file a § 1983 action and a habeas petition), litigation will
proceed more efficiently, as the prisoner will not have to finish
attacking his conviction and sentence before contesting his
competency.
_Convenience cannot substitute for jurisdiction, but it can
guide litigants to the proper forum. Section 1983's relative
that Congress intended such actions to be brought under § 1983
instead of habeas corpus.
C. Narrow Remedy.
1. Ford v. Wainwright.
Dismissing the prisoner’s habeas petition for lack of
means to enforce his rights. Absent an adequate state remedy,
a prisoner can contest his competency to be executed in a
§ 1983 action under the standards established in Ford v.
po Yong pd ans This action is both limited
narrow. It is not by the more expansive language
found in the portion of Justice Marshall's opinion that has only
plurality support, but by the narrow grounds found in the
concurrences.
_ Ford involved an exceptionally strong case for delaying the
prisoner's execution. While on death row, Ford developed an
increasingly delusional obsession about the Ku Klux Klan. /d.,
involved in a complex conspiracy to drive him to commit
suicide. /bid. He believed that the concrete enclosures used for
prison beds contained the bodies of people killed by this
26
conspiracy. He thought that they were holding hostage in the
prison 135 of his family and friends along with “senators,
Senator Kennedy, and many other leaders.” Jbid. Ford eventu-
ally assumed authority to end “the ‘crisis,’ ” claiming to have
fired a number of prison officials. “He began to refer to himself -
as Pope John Paul III, and reported having appointed nine new
justices to the Florida Supreme Court.” Jbid. A psychiatrist
who examined Ford earlier continued seeing him at the request
of Ford’s counsel. Jbid. The psychiatrist “concluded . . . that
Ford suffered from ‘a severe, uncontrollable mental disease
which closely resembles “Paranoid Schizophrenia With Suicide
Potential”’....” /d., at 402-403. Ford eventually stated that
“ ‘I can’t be executed because of the landmark case I won. Ford
v. State will prevent executions all over.’” Jd., at 403.
Ford’s counsel invoked the Florida procedures for determin-
ing a condemned inmate’s competency. Jbid. The Governor
appointed a panel of three psychiatrists to determine whether
Ford had the capacity to understand the nature of his penalty
and why it was being imposed on him. /bid. The three psychia-
trists interviewed Ford at a single, 30-minute meeting. /d., at
404. The three came to different diagnoses, but all found Ford
sane under state law. Jbid. With the competency procedure
ended, the Governor signed Ford’s death warrant. Ibid.
The lead opinion’s analysis of the case began in Part II,
which was joined by a majority of the Court. It established the
foundation for the Ford rule: that the Eighth Amendment can
regulate the adequacy of state procedures for determining an
inmate’s competency to be executed. See id., at 405. The
actual standard for determining competency was not addressed.
The majority then found that the Eighth Amendment does
bar the execution of the insane. /d., at 409-410. This issue’s
freshness before the Court is explained by its unremarkability.
formation of the common law. See id., at 406-408; 4 W.
Blackstone, Commentaries 24-25 (1st ed. 1769). The proscrip-
tion carried over to this country, see Ford, supra, 477 U. S.., at
27
408, and was accepted by every state that had capital
ment when Ford was decided. Aco eny—n a eam
Parts III-V of Justice Marshall's opinion were joined
only a plurality of the Court. The opinion examined he
inadequacy of the Florida procedures in detail. See id., at 413-
417. Although it did not recommend any specific state proce-
dures, the plurality opinion contained expansive language
requiring something close to a full-scale sanity trial. See id., at
413-416, 418 (plurality); cf. id., at 425 (Powell, J., concurring
in part and concurring in the judgment) (“I would not require
the kind of full-scale ‘sanity trial’ that JUSTICE MARSHALL
appears to find necessary”).
On an issue without a majority, the controlling opinion is
the one concurring in the result on the narrowest grounds. See
Marks v. United States, 430 U. 8. 188, 193 (1977). Justice
O’Connor’s opinion explicitly states that inadequacy of the
state’s remedies was an essential component of Ford’s case.
See Ford, 477 U. S., at 427 (concurring in the result in part and
dissenting in part). Justice Powell’s opinion implies the same.
aoe poy rth gh taal ag vow
: ben” in part and concurring
in the judgment). Therefore, because Ford had “raised a viable
claim under the Eighth Amendment, and because the claim was
not adjudicated fairly within the meaning of due process or of
[28 U. S. C.] §2254(d),” Ford could make his claim before a
federal court. /bid. (emphasis added). If the state procedures
had been sufficient, then Ford would have reached a different
2. The remedy.
Ford v. Wainwright is a case about procedure. Once a state
provides the minimum necessary procedural guarantees," any
10. Under Marks, supra, 430 U. S., at 193, Ford does not mandate the “mini trial”
advocated by the plurality, but no more than “an impartial officer or board that
can receive evidence and argument from the prisoner’s counsel” including
28
finding that the prisoner is competent to be executed cannot be
attacked in federal court.
In addition to the narrowness of the Ford rule, substantial
Younger applies Congress’ long-standing policy “to permit
state courts to try state cases free from interference from federal
courts.” /d., at 43. It is therefore “perfectly natural for our
cases to repeat time and time again that the normal thing to do
when federal courts are asked to enjoin pending proceedings in
state courts is not to issue such injunctions.” Id., at 45. The
Younger rule is not limited to injunctions, but includes any
proceeding that has the effect of precluding resolution of the
issue by the state court in which it is pending. See Samuels v.
Mackell, 401 U. S. 66, 72 (1971) (declaratory relief).
Pending ings include execution of judgments. Hill
v. Martin, 296 U. S. 393, 403 (1935) (under Anti-Injunction
Act). Furthermore, the Full Faith and Credit Act applies to
§ 1983 actions, giving state court judgments the same preclusive
effect that they would have in a subsequent state court action.
Allen v. McCurry, 449 U. S. 90, 96 (1980); 28 U. S. C. § 1738.
95-96. Ford similarly respects the integrity of state competency
determinations. In spite of strong evidence of Ford’s incompe-
expert testimony contradicting the state’s psychiatric evidence. See Ford, 477
U. S., at 427 (opinion of Powell, J.); id., at 430 (opinion of O'Connor, J.)
(Florida procedure’s only flaw was not allowing petitioner the opportunity to
present his case).
29
tency, the Ford opinions did not attempt to set the standard of
competency to be executed, concentrating solely on the ade-
quacy of the state competency determination procedure. See
ante, at 26-27. Furthermore, the controlling opinions under-
stood the need to preserve state systems from federal intrusion.
See Ford v. Wainwright, 477 U. S. 399, 427 (1986) (Powell, J.,
concurring in part and concurring in the judgment); id., at 429
(O’Connor, J., concurring in the result in part and dissenting in
part). The one exception to Ford’s deference, inadequate state
procedures, parallels the main exception to collateral estoppel,
the lack of a “full and fair opportunity” to litigate the issue. See
Allen v. McCurry, supra, 449 U. S., at 95; Montana v. United
States, 440 U. S. 147, 153 (1979).
There are strong policy reasons to leave the competency-to-
be-executed issue to the relevant state procedures. Determining
an individual’s competency is inevitably inexact. See Ford,
supra, 477 U. S., at 412 (plurality); Medina v. California, 505
U. S. 437, 451 (1992) (subjectivity of psychiatry); Addington v.
Texas, 441 U.S. 418, 430 (1979) (same). When combined with
the prisoner’s overwhelming interest in frustrating the execution
of his sentence, “the potential for false claims and deliberate
delay in this context is obviously enormous.” Ford, 477 U. S..,
at 429 (O’Connor, J., concurring in the result in part and
dissenting in part). Multiple forums for litigation or extensive
would make these problems much worse.
“This potential is exacerbated by a unique feature of the
prisoner’s protected interest in suspending the execution of
a death sentence during incompetency. By definition, this
interest can never be conclusively and finally determined:
Regardless of the number of prior adjudications of the issue,
until the very moment of execution the prisoner can claim
that he has become insane sometime after the previous
determination to the contrary.” /bid. (emphasis in original).
A proper reading of Ford minimizes these risks. In any
state with an adequate procedure for determining competency,
30
the federal courts would not interfere with state competency
findings. 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).
When it enacted the Antiterrorism and Effective Death
Penalty Act of 1997, Congress decided that the vast majority of
state convicts should only get one run through the federal
system. An interpretation of that act that allows competency
claims to be brought as a matter of routine would frustrate that
intent. Allowing prisoners to bring § 1983 actions only when
state competency procedures are inadequate would safeguard
the federal right while still carrying out the intent of Congress.
CONCLUSION
The decision of the Ninth Circuit should be reversed. .
November, 1997
Respectfully submitted,
CHARLES L. HOBSON
Attorney for Amicus Curiae
Criminal Justice Legal Foundation
ie othe) ee “
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.