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

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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.

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