Amicus Curiae Brief — Stewart v. Martinez-Villareal

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Supreme Court, 0. ¢ ie .

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JAN 8198

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CLER«

No. 97-300

In The

Supreme Court of the United States

October Term, 1997

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TERRY L. STEWART, DIRECTOR,

ARIZONA DEPARTMENT OF CORRECTIONS, et al.,

Petitioners,

v.

RAMON MARTINEZ-VILLAREAL,

Respondent.

¢ >

On Writ Of Certiorari To The

United States Court Of Appeals For The Ninth Circuit

>

BRIEF FOR THE NATIONAL ASSOCIATION OF

CRIMINAL DEFENSE LAWYERS AS AMICUS

CURIAE IN SUPPORT OF RESPONDENT

Epwarp M. CHikoprsky

Counsel of Record

140 West 62nd Street

New York, NY 10023

er oan bande ip (212) 289-1062

Office/10th Floor Mark E. Ouive

801 K Street 2014 Lee Avenue ;

Sacramento, CA 95814 Tallahassee, FL 32314

(916) 498-5700 (904) 531-0119

P

Counsel for Amicus Curiae

Questions Presented

1. Whether Congress intended the AEDPA’s

limitations on second or successive habeas corpus petitions to

apply to all claims and in every court, including competency for

execution claims and applications for “original” Supreme Court

habeas corpus writs.

2. Whether applying the AEDPA to prevent

consideration of a claim of incompetency for execution, raised

in a second or successive habeas corpus petition, constitutes a

violation of the Suspension Clause.

3. Whether this Court has jurisdiction to entertain

the State’s petition for review in light of the express prohibition

against certiorari under 28 U S.C. §2244(b)(3)(E) and the

absence of extraordinary circumstances warranting relief under

the All Writs Act (28 U.S.C. §1651(a))

Table of Contents

Questions Presemie®..... 0.0 cc cccccuctoeseewes EEE i

interest of Ansions Comtesse ... wc. cs cccccnesueeeeeeeen l

a le ee 2

LT fee 6

ENFORCEMENT OF AMENDED-§2244'S SAME-

CLAIM PRECLUSION RULE AGAINST RESPON-

DENT’S FORD CLAIM WOULD VIOLATE DUE

PROCESS BY, IN EFFECT, ENFORCING RETRO-

ACTIVELY A STATUTE THIS COURT HAS

DETERMINED APPLIES ONLY PROSPEC-

NOTWITHSTANDING AMENDED-§2244, RESPON-

DENT’S FORD CLAIM MAY BE HEARD BY THE

FEDERAL COURTS WHERE IT WAS RAISED IN

HIS INITIAL HABEAS PETITION AND WAS

NEVER ADJUDICATED ON THE MERITS; ALTER-

NATIVELY, RESPONDENT MAY INVOKE §2241

(C3) WHERE HE IS ATTACKING THE ADMINI-

STRATION OF HIS SENTENCE, NOT THE JUDG-

MENT OF CONVICTION OR SENTENCE ...... 9

A. The Ford Claim Was Not Successive Where

There Had Been No Prior Judgment On The

B. The Ford Claim May Be Renewed In The Dis-

trict Court Under F.R.C.P. 60(b)(6) Where

Timely Asserted First Petition Claim Is Now

C. The Traditional Habeas Remedy Of §2241

(C)(3) Remains Available Where A State

Prisoner Attacks The Imposition Of His

Sentence, Not The wenden Of Conviction

Or Sentence , Ro ee 13

lil. THIS COURT LACKS JURISDICTION TO ENTER-

TAIN THE STATE’S CLAIMS EITHER BY CERTIO-

RARI OR EXTRAORDINARY WRIT ......... 16

SC oe

Table of Authorities

Cases

Barnard v. Collins, \3 F.3d 871 (Sth Cir. 1994)... 11

Burris v. Parke, 95 F.3d 465 (7th Cir. 1996)... _. ios ee

Camarano v. Irvin, 98 F.3d 44 (2d Cir 1996)........... 10

Chambers v. United States, 106 F.3d 472

I a

Fearance v. Scott, 56 F.3d 633 (Sth Cir Aer 11

Felker v. Turpin, 116 S.Ct. 2333 (1996)... ... 0.0.0... 4

Ford v. Wainwright, 477 U.S. 399 (1986)... _.. Sainte ot 2

General Motors v. Romein, 503 U.S. 181 (1992)... .... 8

Gomez v. U.S. Dist. Ct., 503 U.S. 653 (1992)........... 14

Hill v. Lockhart, 894 F.2d 1009 (8th Cir. 1990)... 11

In re Dorsainvil, 119 F.3d 245 (3d Cir. 1997).......... 14

In re Turner, 101 F.3d 1323 (9th Cir. 1996)............ 10

Jones v. Cunningham, 371 U.S. 236 (1963)............. 9

Landgraf v. USI Film Products, Inc.,

EE 7

Lindh v. Murphy, 117 S.Ct. 2059 (1997)... 2.2.2.6... 3

iv

Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982)... .. 11

Lonchar v. Thomas, 116 S.Ct. 1293 (1996)............. 9

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

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

rh JCP CeeL eRe tN bawc vices ccees 3

Martinez-Villareal v. Stewart, 118 F 3d 625

EE a > Oa rr 4

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

FRE SEES Do ea 2

Matarese v. LeFevre, 801 F.2d 98 (2d Cir. 1986)... .... 12

McCleskey v. Zant, 499 U.S. 467 (1991)............... 4

Mojica v. Reno, 970 F Supp. 130 (E.D.N-Y. 1997)... ... 14

Pension Benefit Guaranty Corp. v. R.A. Gray & Co.,

ES eS 9

Rose v. Lundy, 455 U.S. 509 (1982)................... 5

Sanders v. United States, 373 U.S. 1 (1963)............. 5

Triestman v. United States, 124 F.3d 361 (2d Cir. 1997). . 14

Welch v. Henry, 305 U.S. 134(1938)................. 9

BRIEF FOR THE NATIONAL ASSOCIATION OF

CRIMINAL DEFENSE LAWYERS AS AMICUS CURIAE

IN SUPPORT OF RESPONDENT

Interest of Amicus Curiae

Founded in 1958, the National Association of Criminal

Defense Lawyers is one of the nation’s leading organizations

advancing the mission of criminal defense lawyers to ensure

justice and due process for persons accused and convicted of

crime. NACDL’s mission, as defined in its bylaws, is to

“[{e}nsure justice and due process for persons accused of crime

... [floster the integrity, independence and expertise of the

criminal defense profession ... and[p}romote the proper and fair

administration of justice.” .NACDL has more than 9,000

members nationwide -- along with 78 state and local affiliate

organizations numbering 25,000 members -- including private

criminal defense lawyers, public defenders and law professors

committed to preserving fairness within America’s criminal

justice system. The American Bar Association recognizes

NACDL as an affiliate organization and awards it full

representation in its House of Delegates. NACDL has appeared

before this Court on many occasions as amicus curiae. See,

e.g., Trest v. Cain, 66 U.S.L.W. 4023 (1997).'

l Both parties have consented to NACDL's appearance in this matter

as amicus curiae. No counsel for any party has authored this bnef in whole

or in part, and no person or entity, other than amicus curiae, has made a

monetary contribution to the preparation or submission of this bnef. Sup. Ct

Rule 37.6.

2

Statement of the Case

This case raises important questions relating to the

power of the federal courts to entertain constitutional claims

concerning the mental competence of death-sentenced state

prisoners facing impending execution (Ford v. Wainwright, 477

U.S. 399 (1986)) where such claims, although timely asserted,

may not properly be adjudicated in the prisoner’s initial habeas

petition (on grounds of prematurity) and would now appear to

be explicitly precluded from consideration on a second or

successive habeas petition under the terms of the newly-codified

28 U.S.C. §2244(b)(1) & (2) of the Antiterrorism and Effective

Death Penalty Act of 1996, Pub. L. 104-132, 110 Stat. 1214,

effective April 24, 1996.

Subsection (b)(1) of the new statute states categorically

that any claim presented in a prior habeas application “shall be

dismissed”, irrespective of whether that claim received merits

adjudication in the district court.’ Subsection (b)(2) provides

that new claims presented in a second application must be

dismissed unless the prisoner demonstrates that his claim is

based on a new rule of constitutional law, made retroactive by

the Supreme Court, that was previously unavailable (subsection

(b)(2)(A)) or that his claim is based on a colorable factual

demonstration of innocence (subsection (b)(2)(B)).

Accordingly, as the court of appeals noted, the new statute thus

effectively whipsaws a habeas petitioner by precluding a federal

court from entertaining a colorably meritorious execution-

competence claim on either a first or a second federal petition.

118 F.3d at 630-31.

2 As noted by the court of appeals, “[t}his sanction applies to a

competency claim raised in a first petition even though that claim can never be

adjudicated because it will always be premature.” Martinez-Villareal v.

Stewart, 118 F.3d 628, 630-31 (9th Cir. 1997).

3

Further complicating matters is the unintended

retroactive impact of the AEDPA, enacted on April 24, 1996,

on the adjudication of respondent's execution-competence

claim. This Court determined last Term that the AEDPA’s

revisions to Chapter 153 of Title 28 of the United States Code

apply only to habeas petitions filed on or after its effective date

Lindh v. Murphy, 117 S.Ct. 2059, 2063 (1997). However, the

new statute’s implications for cases like the one at bar, whose

litigation effectively straddles the enactment of the new statute,

is indeed problematic.

In this case, respondent filed his initial federal petition

in March 1993 and the district court granted partial habeas

relief, on unselated grounds, in October 1994. Martinez-

Villareal v. Stewart, 80 F.3d 1301, 1305 (9th Cir. 1996).

Nevertheless, the district court found respondent’s execution-

competence claim to be premature and dismissed it without

prejudice. /d. at 1307; 118 F.3d at 630 & n.1.’ On appeal, the

court of appeals reversed the district court’s grant of partial

habeas relief. 80 F.3d at 1307-09. It did so, however, with the

express proviso that its “instruction to enter judgment denying

the petition is not intended to affect any later litigation of [the

execution-competence] question.” 80 F.3d at 1309 n.1; 118

F.3d at 630.

Intervening events, however, unexpectedly changed the

fundamental legal complexion of the case. The court of

appeals’ decision reversing the grant of relief -- except on the

execution-competence claim -- was entered on April 4, 1996.

Three weeks later, on April 24, 1996, the AEDPA was

3 Indeed, the court of appeals found it ironic that it was the State that

had urged the district court to find respondent's execution-competence claim

not yet npe for adjudication, suggesting that it await the resolution of his other

legal claims and the issuance of an execution warrant. 118 F.3d at 630 n.1.

4

subsequently signed into law. The new Act’s wholesale

statutory revision of habeas corpus remodeled the landscape by

which second and successive petitions were henceforth to be

treated by the federal courts. Compare amended-§2244(b)(1)

& (2)(mandatory dismissal for same-claim petitions with narrow

exceptions only for new claims) with McCleskey v. Zant, 499

U.S. 467, 489 (1991)(permissive dismissal based upon “the

complex and evolving body of equitable principles informed and

controlled by historical usage, statutory developments, and

judicial decisions”), Felker v. Turpin, 116 S.Ct. 2333, 2340

(1996).

Accordingly, in May 1997, when respondent sought to

amend the district court’s judgment and renew his execution-

competence claim -- the same claim that was earlier dismissed

without prejudice -- his motion was now denied as a result of

the new successive writ provisions of the AEDPA. Martinez-

Villareal v. Stewart, 118 F.3d 625, 626 (9th Cir. 1997). The

court of appeals, however, granted limited procedural relief. /d.

at 629, 632-33. Holding that AEDPA’s prohibition on

successive petitions did not apply to a petition that raised only

an execution-competence claim -- a claim that was timely

asserted in respondent’s original petition but dismissed without

prejudice as premature -- the court of appeals transferred the

petition to the district court, pursuant to 28 U.S.C. §2241(b),

for plenary merits adjudication. /d. at 633-34.

Before this Court, and upon dubious jurisdictional

grounds -- see Point III, infra -- the State seeks to overturn the

court of appeals’ carefully-crafted statutory analysis, in which

it relied on the venerable rule that courts should construe

statutes so as to avoid constitutional questions, by suggesting

that this Court engage instead in a thorough-going re-

examination of the Suspension Clause (U.S. Const., art. I, §9,

cl. 2) and its implication for the wholesale vitality of the

5

statutory changes wrought in habeas jurisprudence by the

AEDPA. (Pet. Br. Point II). The State’s contentions in this

regard are thoroughly addressed (and refuted) in the amicus

curiae brief filed herein by the American Civil Liberties Union

on behalf of respondent and will not be repeated here.

This brief addresses several additional issues that the

State has given unnecessarily short shrift but which come closer

to the core of the actual legal controversy presently before the

Court. First, the new amendments to §2244 foreclose any

adjudication of respondent’s Ford claim even though it would

have received merits review under prior law -- as explicitly

intended by the very federal judges who had earlier entertained

respondent’s claims. That being the case, the new AEDPA has

effectively worked an arbitrary (and retrospective) change in

the law in violation of the due process clause. This statute

dramatically changed prior law -- as well as upsetting the

settled expectations of the very federal judges who had earlier

entertained respondent’s claims and anticipated their later

renewal on the merits. Indeed, the unfairness of this

unexpected change of law was underscored by this Court’s

subsequent determination that AEDPA’s provisions were to be

applied only prospectively. Lindh v. Murphy, 117 S.Ct. at

2063.

Second, respondent’s Ford claim is no “successive”

claim by any plausible construction of the controlling statutes,

including §2244(b)(1) & (2). Indeed, this second application is

respondent’s first meaningful opportunity to put his Ford claim

before the federal courts for plenary merits review. Whether

construed under principles of, e.g., successive petitions

(Sanders v. United Staies, 373 US. 1, 15-16 (1963);

McCleskey v. Zant, supra) or exhausting the state remedies of

mixed habeas petitions (Rose v. Lundy, 455 U.S. 509 (1982)),

where there has been no prior judgment on the merits of a

6

timely-asserted habeas claim, and where the claim was explicitly

dismissed without prejudice, a later renewal of the same claim

does not constitute a successive petition.

Moreover, where respondent is not attacking his

conviction or sentence per se, but only the procedures

employed in evaluating his mental state pending execution of

sentence, he is independently entitled to present his claims to the

federal courts under the omnibus federal habeas statute (28

U.S.C. §2241(c)(3)). Under any and all of these jurisdictional

(and constitutional) bases, the court of appeals correctly

construed the new statute in a way that properly avoided

serious constitutional conundra.

SUMMARY OF ARGUMENT

1. This Court has held that the habeas corpus amendments

enacted as part of the AEDPA apply prospectively to cases filed

after its enactment in April 1996. Respondent’s execution-

competence claim was raised in his first pre-AEDPA petition

but was dismissed without prejudice as premature by both the

district court and the court of appeals prior to the new statute’s

enactment. Enforcement of the successive writ provisions of

the new statute would now mandate dismissal of respondent’s

renewed claim. In light of the “new legal consequences” and

reliance interests of the parties -- as well as the federal judges

who ruled on the first petition -- dismissal of respondent’s

execution-competence claim without plenary merits review

would constitute the retrospective enforcement of a

prospective statute to a case whose litigation straddled the time

period in which the legislation was enacted. Constitutional and

equitable principles uniquely applicable to habeas corpus fully

justified the court of appeals’ remand of respondent’s Ford

claim to the district court, notwithstanding amended-§2244, for

ad

plenary merits review.

2. Respondent’s Ford claim was properly remanded to the

district court for merits review. The claim was not successive

as there had been no prior adjudication on the merits when it

was raised in respondent’s first petition. Accordingly, the

district court could entertain the renewed claim either under the

traditional habeas corpus statute (28 U.S.C. §2241(c)(3))or

under Rule 60(b)(6) of the federal civil rules.

3. This Court lacks jurisdiction to entertain the State’s

petition for review. Certiorari is precluded by statute in this

case and the State has failed to make the requisite showing of

extraordinary circumstances to warrant relief under the All

Writs Act.

ARGUMENT

I

ENFORCEMENT OF AMENDED-§2244'S SAME-CLAIM

PRECLUSION RULE AGAINST RESPONDENT’S FORD

CLAIM WOULD VIOLATE DUE PROCESS BY, IN

EFFECT, ENFORCING RETROACTIVELY A STATUTE

THIS COURT HAS DETERMINED APPLIES ONLY

PROSPECTIVELY

In Landgraf v. USI Film Products, Inc., 511 U.S. 244

(1994), this Court determined that, absent a clear statement

from Congress, a new law should not be applied to penalize past

conduct if it would “attach[] new legal consequences to events

completed before its enactment.” /d. at 270. Courts have

developed a longstanding presumption against retroactivity

reflective of the notion that “[rJetroactive legislation presents

problems of unfairness that are more serious than those posed

by prospective legislation, because it can deprive citizens of

legitimate expectations and upset settled transactions.” General

Motors v. Romein, 503 U.S. 181, 191 (1992).

Landgraf provides a wide range of illustrative ways in

which statutory provisions may create (or extinguish) “new

legal consequences” by their retrospective application. Among

the kinds of statutory provisions that have “retroactive effects”

are those that (1) “affect[] substantive rights”, 511 U.S. at 278,

(2) “impair rights a party possessed when he acted, increase a

party’s liability for past conduct, or impose new duties with

respect to transactions already completed,” id. at 280, or (3)

“change the legal consequence of acts completed before [the

new law’s] effective date” id. at 269 n.23.

In the present case, the “new legal consequences” of the

statute’s enactment amounts to the outright extinction of

respondent’s right to secure plenary review of his Ford claim.

Notwithstanding the express reservation of his right asserted in

his first petition -- a reservation concurred in by both the

district court and the court of appeals -- the new statute

expressly precludes respondent from renewing his “same

claim” in a later petition, precisely the vice Landgraf cautioned

against, 511 U.S. at 270 (“retroactivity is a matter on which ...

considerations of fair notice, reasonable reliance, and settled

expectations offer sound guidance”); id. at 282 n.35 (“concerns

of unfair surprise and upsetting expectations”); id. at 265 n.18

(“deprive citizens of legitimate expectations and upset settled

transactions”).

As the Court recently reaffirmed in an ex post facto

retroactive legislation are necessary in order to “place{] limits

on the sovereign’s ability to use its lawmaking power to modify

—

9

bargains it has made with its subjects”. Lynce v. Mathis, 117

S.Ct. 891, 895 (1997).

Part of the analysis of whether retroactive application

of a statute is arbitrary and irrational is whether it imposes an

oppressive and harsh burden. Pension Benefit Guaranty Corp.

v. R.A. Gray & Co., 467 U.S. 717, 733 (1984) quoting Welch

v. Henry, 305 U.S. 134, 147 (1938).. In this case, where the

“new legal consequences” of the amended statute have

extinguished respondent’s substantive and procedural rights that

were expressly reserved for him by the federal courts, his right

to due process has been violated as well. As the writ of habeas

corpus has evolved into a mechanism that guarantees

application of basic constitutional doctrines of fairness, so its

flexibility as an equitable remedy allows courts to shape relief

to the circumstances -- and equities -- of each case. Lonchar

v. Thomas, 116 S.Ct. 1293, 1298 (1996); Jones vy.

Cunningham, 371 U.S. 236, 243 (1963).

Faced with these equitable -- and constitutional --

considerations, the court of appeals properly balanced the

equities in refusing to enforce the harsh and inflexible

provisions of §2244 against respondent. In so doing, it

interpreted the statute in such a way as to avoid serious

constitutional problems in the enforcement of a statute intended

to be enforced only prospectively.

ll

NOTWITHSTANDING AMENDED-§2244, RESPON-

DENT’S FORD CLAIM MAY BE HEARD BY THE

FEDERAL COURTS WHERE IT WAS RAISED IN HIS

INITIAL HABEAS PETITION AND WAS NEVER

ADJUDICATED ON THE MERITS; ALTERNATIVELY,

10

RESPONDENT MAY INVOKE §2241(C)(3) WHERE HE

IS ATTACKING THE ADMINISTRATION OF HIS

SENTENCE, NOT THE JUDGMENT OF CONVICTION

OR SENTENCE

Putting aside the constitutional implications of

retroactively enforcing amended-§2244 against a prisoner under

circumstances in which both the federal district court and the

court of appeals explicitly extended him the right to renew his

Ford claim at such future time as it became ripe for

adjudication, it is axiomatic that the court of appeals’ solution --

a remand to the district court for plenary merits review -- was

eminently correct. 118 F.3d at 632-34.

A. The Ford Claim Was Not Successive Where There

Had Been No Prior Judgment On The Merits

Section 2244 ordinarily does not apply to second or

successive petitions where the first petition was dismissed

without prejudice or there was no merits adjudication of the

operative claim sought to be litigated anew. See Jn Re Turner,

101 F.3d 1323 (9th Cir. 1996); Camarano v. Irvin, 98 F.3d 44,

46-47 (2d Cir. 1996)(“because application of the gatekeeping

provisions [of §2244] to deny a’ resubmitted petition in cases

such as this would effectively preclude any habeas review ... a

dismissal without prejudice can have no preclusive effect on

subsequent petitions”); see especially Burris v. Parke, 95 F.3d

465, 468-69 (7th Cir. 1996)(en banc)(habeas petitioner allowed

to proceed under pre-AEDPA provisions where litigant had no

prior notice of Act’s stringent successor provisions).

Turner and Camarano are founded on the total-

exhaustion principles of Rose v. Lundy but the same rationale

applies with equal force to respondent’s Ford claim. Just as

. OO

ll

mixed petitions containing unexhausted claims must be

dismissed, so, too, execution-competence claims raised in first

petitions will always be dismissible as premature. Accordingly,

to relegate competence claims to successive petitions under the

new statute is to ensure that they will never receive plenary

adjudication on the merits in the federal courts. See, e.g., Rule

9b) of the Rules Governing §2254 Cases (“prior determination

.. on the merits”); Hill v. Lockhart, 894 F.2d 1009, 1010 (8th

Cir 1990)\(en banc)(“the District Court did not abuse its

discretion in hearing Hill’s second habeas petition, because there

had been no final determination on the merits of Hill’s first

petition”); Rose v. Lundy, 455 U.S. at 537-38 (Brennan, J.,

concurring and dissenting); see also 2 James S. Liebman &

Randy Hertz, Federal Habeas Corpus Practice And Procedure

§§28.3b at 918-19 & nn.36-38, 28.4d at 935-37 (2d ed. 1994)

(and cases collected therein).‘

Thus, where an execution competence claim has been

raised in an initial federal petition, and dismissed as premature,

the federal courts must be permitted to entertain the merits of

the claim once it achieves “ripeness” without running afoul of

to “one bite of the apple” of plenary review. Where he cannot

receive merits adjudication when his claim is initially presented,

through no “ault of his own, he is nevertheless entitled to it once

it becomes ripe for adjudication. See Logan v. Zimmerman

Brush Co., 455 U.S. 422, 433 (1982)(state cannot terminate a

4 Indeed, as the courtof appeals itself noted (118 F.3d at 634 n.7), the

sui generis nature of execution-competence claims, and the exceptional

procedural posture in which they usually arse, leaves open the question

whether they even fit within the conventional rubnic of the phrase “second or

successive habeas corpus applications”, citing Fearance v. Scott, 56 F 3d

633, 640 (Sth Cir. 1995)(Ford claims in the context of abuse of the writ or

successive petitions); Barnard v. Collins, 13 F.3d 871, 878 (Sth Cir.

1994) accord).

12

party’s claim simply because a hearing was not held within

specific time, particularly where he has no means of ensuring

deadline is met; party is entitled to an “opportunity to present

his case and have its merits fairly judged”).

B. The Ford Claim May Be Renewed In The District

Court Under F.R.C.P. 60 (b)(6) Where Timely

Asserted First Petition Claim Is Now Ripe For

Adjudication

The court of appeals was well within its authority in

remanding respondent’s Ford claim to the district court for

plenary review, particularly where the claim had already been

timely asserted in respondent’s first habeas petition and it was

dismissed without prejudice on prematurity grounds. The

district court initially declined to entertain respondent’s motion

to reopen the first habeas proceeding, believing itself divested

of jurisdiction by the AEDPA . 118 F.3d at 630. Under Rule

60(b)(6), however, the district court had the power to reopen

the proceedings, notwithstanding AEDPA, and the court of

appeals correctly sent the matter back to the district court for

plenary merits review.

Rule 60(b)(6) “confers broad discretion on the trial

court to grant relief when ‘appropriate to accomplish justice””.

_ International Controls Corp. v. Vesco, 556 F.2d 665, 668 n.2

(2d Cir. 1977)(quoting Klapprott v. United States, 335 U.S.

601, 615 (1949)(plurality opinion of Black, J.)). It constitutes

a “grand reservoir of equitable power to do justice in a

particular case”. Radack v. Norwegian American Line Agency,

Inc., 318 F.2d 538, 542 (2d Cir. 1963); Matarese v. LeFevre.

801 F.2d 98, 106-07 (2d Cir. 1986). It is “properly invoked

where there are extraordinary circumstances” (Ackermann v.

United States, 340 U.S. 193, 199 (1950)) and “should be

liberally construed when substantial justice will thus be served”.

13

United States v. Cirami, 563 F.2d 26, 32 (2d Cir. 1977). The

Second Circuit has ratified the use of Rule 60(b)(6) motions in

the context of habeas proceedings where, inter alia, there has

been post-judgment change in the law. Matarese, 801 F.2d at

106 (citing Sanders v. United States, 373 U.S. at 8).

This Court has determined that “to reopen a judgment

[pursuant to Rule 60(b)(6)], a party must show

‘extraordinary circumstances’ suggesting that the party is

faultless in the delay”, extraordinary circumstances are present

when a party was prevented from earlier compliance by

“incarceration, ill health, [or] other factors beyond his

reasonable control”. Pioneer Inves. Serv. Co. v.. Brunswick

Assoc. Lid. Partnership, 507 U.S. 380, 394 (1993); Ritter v.

Smith, 811 F.2d 1398, 1401-03 (11th Cir. 1987); High v. Zant,

916 F.2d 1507, 1509-10 (1 Ith Cir. 1990).

Here, of course, the “changed circumstance” was

entirely outside respondent’s control -- the State of Arizona set

a formal execution date which perforce made his execution-

factual circumstances, then, respondent’s Ford claim is finally

ripe for adjudication and should be reconsidered on the merits

by the district court before which it was originally asserted.

Rule 60(b)(6) is the appropriate jurisdictional vehicle by which

ot The Traditional Habeas Remedy Of §2241(c)(3)

Remains Available Where A State Prisoner Attacks

The Imposition Of His Sentence, Not The Judgment

Of Conviction Or Sentence

This Court has recognized that the range of cognizable

claims raised by state prisoners in habeas corpus proceedings is

14

extremely broad. These claims address not only attacks on

judgments of conviction and sentences imposed by state courts,

pursuant to §2254, but also collateral attacks by state and

federal prisoners alleging that they are being held “in custody in

violation of the Constitution or law or treaties of the United

States”. 28 U.S.C. §2241(c\(3). McCleskey v. Zant, 499 U.S.

at 477-78. Among these cognizable habeas claims are those

attacking the method of execution -- Gomez v. U.S. Dist. Ct.,

503 U.S. 653 (1992)(lethal gas); Poyner v. Murray, 508 U.S.

931, 932-33 (1993)Souter, J., opinion respecting denial of

certiorari)(electrocution),; Campbell v. Wood, 511 U.S. 1118,

1119-20 (1994)(Blackmun, J., dissenting from denial of stay

and certiorari)(hanging) -- as well as attacks on procedures for

fairly assessing the mental state of the condemned to determine

his execution-competence. Ford v. Wainwright, supra. See

also Preiser v. Rodriguez, 411 U.S. 475 (1973)(habeas corpus

is a “concurrent federal remedy” along with 42 U.S.C. §1983 in

prison conditions cases).

While Congress has amended and fine-tuned the federal

courts’ power to entertain and issue the writ to state and federal

prisoners attacking their convictions under 28 U.S.C. §§2254

& 2255, it has nevertheless left unamended -- and unimpeded --

the general power of the federal courts to grant the writ of

habeas corpus under §2241 -- the statute that is the direct

descendent of Section 14 of the Judiciary Act of 1789 and the

1867 Act, which greatly expanded the scope of the writ. Felker

v. Turpin, 116 §.Ct. at 2338-39, Triestman v. United States,

124 F.3d 361, 373-80 (2d Cir. 1997)(Calabresi, J.); /n re

Dorsainvil, 119 F.3d 245, 248-49 (3d Cir. 1997); Mojica v.

Reno, 970 F.Supp. 130, 157-63 (E.D.N.Y. 1997)(Weinstein,

J.(AEDPA provisions amending §§2254 & 2255 do not

constitute a repeal of §2241; “[rJepeals by implication are not

favored”’).

ee

15

In 7riestman, the Second Circuit held that a federal

petition via the traditional remedy of §2241 where he was

otherwise precluded under the AEDPA from filing a successive

petition for post-conviction relief. Finding that the recent

amendments to §2255 rendered it inadequate and ineffective in

that case to test the legality of Triestman’s detention, the court

determined that the alternative remedy under §2241 remained

unimpaired by Congress’ handiwork -- a conclusion this Court

earlier underscored in Felker.

Of particular relevance here, the Second Circuit also

determined that filing a habeas claim under §2241 would not

constitute a successive petition where Triestman’s earlier

petitions all had been filed under §2255. Triestman, 124 F 3d

at 373 n.17. See also Chambers v. United States, 106 F 3d

472, 475 (2d Cir. 1997)(“Because Sections 2255 and 2241

address different types of claims, filing a Section 2255 motion

after filing a Section 2241 motion does not trigger the

gatekeeping provisions of Section 2244").

So, too, it is here. Respondent’s Ford claim goes not to

the validity of his conviction and sentence but addresses only

the collateral manner of the administration of his execution.

Respondent is thus entitled to litigate the validity of this

independent federal claim under §2241, notwithstanding that the

gatekeeping provisions of §2244 may preclude him from

seeking federal relief under §2254. Clearly, in the absence of

Congressional repeal of §2241, that two hundred year old

statute retains its vitality by which to assert federal jurisdiction

over habeas claims latterly rendered unavailable under the

AEDPA.

16

THIS COURT LACKS JURISDICTION TO ENTERTAIN

THE STATE’S CLAIMS EITHER BY CERTIORARI OR

EXTRAORDINARY WRIT

The State candidly concedes (Pet. Br. Point III), as it

must, that it is precluded from seeking certiorari in this Court by

virtue of §2244(b)(3)(E), which provides that “[t}he grant or

denial” of leave to file a successive petition “shall not be the

subject of a petition for rehearing or for a writ of certiorari”.

As this Court noted in Felker, “(t]he Act does remove our

authority to entertain an appeal or a petition for a writ of

certiorari to review a decision of a court of appeals exercising

its ‘gatekeeping’ function over a second petition.” 116 S.Ct. at

2339. Indeed, the very language of the statute (“grant or

denial”) indicates Congress’ unmistakable intention to exclude

prosecutors, as well as prisoners, from appealing court of

appeals’ certification decisions.

In Felker, this Court noted that while it was precluded

authority to hear habeas petitions filed as original matters in the

Court. 116 S.Ct. at 2338-39. This, of course, is of no avail to

the State as it is only the prisoner -- and not the prosecutor --

who may seek an original writ of habeas corpus from the

Supreme Court, and even then only under extraordinary

circumstances. See, e.g., Robert L. Stern et al., Supreme Court

Practice §11.3 at 501-04 (7th ed. 1993); 2 Liebman & Hertz,

Ch. 40 (and authorities collected therein).

That leaves review by means of extraordinary writ under

the All Writs Act (28 U.S.C. §1651(a)) in the nature of

mandamus, prohibition, certiorari or habeas corpus. With

certiorari and habeas corpus unavailing, the State is left with

17

mandamus or prohibition -- neither of which provides a proper

jurisdictional basis upon which to invoke this Court’s appellate

jurisdiction.

This Court has reiterated that the writs “are drastic and

extraordinary remedies” to be “reserved for really extraordinary

causes” in which “appeal is a clearly inadequate remedy”. Ex

Parte Fahy, 332 U.S. 258, 259, 260 (1947). “The power to

issue [the writ] is discretionary and it is sparingly exercised”.

Parr v. United States, 351 U.S. 513, 520 (1956). “Courts faced

with petitions for peremptory writs must be careful lest they

suffer themselves to be misled by labels such as ‘abuse of

discretion’ and ‘want of power’ into interlocutory review of

nonappealable orders on the mere ground that they may be

erroneous.” Will v. United States, 389 U.S. 90, 98 n.6 (1967);

Will v. Calvert Fire ins. Co., 437 U.S. 655, 665-66 n.7 (1978).

Here, of course, the State attempts an end-run around

this jurisdictional barrier. It asserts that since the lower court

neither “granted” nor “denied” respondent’s certification

application -- it simply remanded the case to the district court

simpliciter -- §2244(b)(3)(E) is somehow inapplicable and

ordinary certiorari should apply. In addition to exalting form

over substance, the State actually seeks precisely the sort of

disfavored interlocutory review of a patently nonappealable

order that this Court has repeatedly held to be beyond the

authority of the extraordinary writs. See, e.g., Bankers Life Co.

v. Holland, 346 U.S. 379, 383 (1953); Roberts v. U.S. District

Court, 339 U.S. 844, 845 (1950).

In this case, the court of appeals has remanded the

proceedings to the district court for plenary merits review of

respondent’s Ford claim. Either party aggrieved by the district

court’s ultimate merits determination will at that time have the

customary opportunity for plenary appellate review (28 U.S.C.

18

§§1291 & 2253) as well as the right thereupon to seek certiorari

review in this Court (28 U.S.C. §1254(1)). Accordingly, the

issuance of an extraordinary writ at this interlocutory stage of

the litigation is wholly unwarranted where there is little

likelihood that this Court will ultimately be deprived of its

customary appellate jurisdiction over final orders at the

conclusion of merits adjudication at nisi prius. Certiorari

should therefore be dismissed in this case for want of

jurisdiction.

Conclusion

The judgment of the court of appeals should be

affirmed; alternatively, certiorari should be dismissed for want

of jurisdiction.

Respectfully submitted,

EDWARD M. CHIKOFSKY

Counsel of Record

140 West 62nd Street

New York NY 10023

(212) 289-1062

DAVID M. PORTER

Federal Defender’s

Office/10th Floor MARK E. OLIVE

801 K Street 2014 Lee Avenue

Sacramento CA 95814 Tallahassee FL 32314

(916) 498-5700 (904) 531-0119

Counsel for Amicus Curiae

Dated: January 1998