Amicus Curiae Brief — Stewart v. Martinez-Villareal

OcTOBER TERM, 1997

TERRY STEWART, Director, Arizona Department

of Corrections, et al., Petitioners,

IN THE ee

Vv.

RAMON MARTINEZ-VILLAREAL, Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF OF AMICUS CURIAE AMERICAN BAR

ASSOCIATION IN SUPPORT OF RESPONDENT

JEROME J. SHESTACK*

President :

san Bar ‘ation

JEROLD S. SOLOVY

BARRY LEVENSTAM

C. JOHN KOCH

JEREMY M. TAYLOR

LAUREL A. HASKELL

750 North Lake Shore Drive

Chicago, IL 60611

Counsel for Amicus Curiae

* Counsel of Record

— —_—_—_—_—_— ————————

~

BESTAVAILABLECOPY ©

aa

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ............-0eeeeeeees ili

INTEREST OF AMICUS CURIAE ...............+... l

SUMMARY OF ARGUMENT .........-----0eeeee0- 2

REGIS 6 ood thd cts i inddeivanccedeaccesccess 4

1. THIS COURT SHOULD CONCLUDE THAT

SECTION 2244 CANNOT RATIONALLY BE

INTERPRETED TO BAR PROPERLY

PRESERVED CLAIMS THAT WERE RAISED

BUT NOT DETERMINED IN A PRIOR

HABEAS APPLICATION. ..........-----+>. 4

A. Reading Section 2244 To Bar Claims That

Were Raised In A Prior Habeas Application

But Deferred As Premature Would Be

Irrational And Would Thwart The

” Or Successive,” Which This Court And

C. This Court Should Interpret Section 2244

So As To Avoid A Needless

Constitutional Inquiry ................... 13

Il. THIS COURT SHOULD NOT READ THE

AEDPA TO PRECLUDE HABEAS REVIEW

OF A FORD CLAIM BECAUSE CONGRESS

ALWAYS HAS GRANTED FEDERAL

REVIEW AS OF RIGHT FOR DETER-

MINATION OF FEDERAL RIGHTS

AND CONGRESS DID NOT CLEARLY

REVOKE THAT RIGHT IN THE AEDPA ..... 16

CEEET weChceswesnanssdoscusesvecvescces 25

iii

TABLE OF AUTHORITIES

CASES Page

Ankenbrandt v. Richards, 504 U.S. 689 (1992) ......... 10

Barron v. Mayor and City Council of Baltimore,

32 U.S. (7 Peters) 243 (1833) ................ 17

Benton v. Washington, 106 F.3d 162 (7th Cir. 1996) .... 11

Brown v. Allen, 344 U.S. 443 (1953) .........0000000- 23

Cabell v. Markham, 148 F.2d 737 (2d Cir.),

aff d, 326 U.S. 404 (1945) .............0005. 12

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

Cannon v. University of Chicago,

abe dibs deccisiceee. 9

Christy v. Horn, 115 F.3d 201 (3d Cir. 1997) .......... il

Cohens v. Virginia, 19 U.S. 264 (1821).............-. 18

Colautti v. Franklin, 439 U.S. 379 (1979) .......020000. 8

Coleman v. Thompson, 501 U.S. 722 (1991) ......... 4,12

Crowell v. Benson, 285 U.S. 22 (1932) ........200000- 13

Debartolo Corp. v. Florida Gulf Coast,

GE De SEEMED eee cc cecccccccccccc: 13, 15

Dickenson v. Maine, 101 F.3d 791 (1st Cir. 1996) ...... 11

iv

Ex parte Bakelite Corp., 279 US. 438 (1929) .......... 24

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

Ex parte Bridges, 2 Woods 428 (Sth Cir. 1875) ........ 20

Ex parte McCardle, 73 U.S. (6 Wall.) 318 (1868) ....... 20

Ex parte Royall, 117 U.S. 241 (1886) ............. 20, 22

Felker v. Turpin, 116 S. Ct. 2333 (1996) ........... 15, 16

Felts v. Murphy, 201 U.S. 123 (1906) ............655. 22

Ford v. Wainwright, 477 U.S. 399 (1986) .............. 5

Frank v. Mangum, 237 U.S. 309 (1915) ..........005 23

Green v. Bock Laundry Mach. Co.,

GOB. FROG bcd vatisdccvccccicsces 6,7

Herrera v. Collins, 506 U.S. 390 (1993) .............. 23

In re Gasery, 116 F.3d 1051 (Sth Cir. 1997) ........... 11

In re Neagle, 135 U.S. 1 (1890)... 2... cece cece wees 19

In re Turner, 101 F.3d 1323 (9th Cir. 1997) ........... ll

Kuhlmann v. Wilson, 477 U.S. 436 (1986) ............. 9

Martin v. Hunter's Lessee,

14 U.S. (1 Wheat.) 304 (1816) ............... 18

v

Martinez-Villareal v. Lewis,

80 F.3d 1301(9th Cir. 1996) ..............04.. 6

Martinez-Villareal v. Stewart,

118 F.3d 628 (9th Cir. 1997) ............ 5, 6, 13

McCleskey v. Zant, 499 U.S. 467 (1991) ............ 9, 23

Moore v. Dempsey, 261 U.S. 86 (1923) ............5.. 23

Murray v. The Charming Betsy,

6 U.S. (2 Cranch) 64 (1804) ..............4.. 13

NLRB v. Catholic Bishop, 404 U.S. 490 (1979) ........ 15

Pettibone v. Nichols, 203 U.S. 192 (1906) ............ 22

Rose v. Lundy, 455 U.S. 509 (1982) ..........2500005. 8

Rowland v. California Men's Colony,

DEED Soncnceccccccccccccccees 7

Ruckelshaus v. Sierra Club, 463 U.S. 680 (1983) ....... 24

Sanders v. United States, 373 U.S. 1 (1963) ........ 14, 15

Storti v. Massachusetts, 183 U.S. 138 (1901) .......... 22

Teague v. Lane, 489 U.S. 288 (1989) ................ 23

Toxaway Hotel Co. v. Smathers & Co.,

EE a bb cbbcdb cédedscccccsese 10

United States v. Hayman, 342 U.S. 205 (1952) ......... 14

vi

United States v. X-Citement Video, Inc.,

SES TB, GEC wc cbc rece cccccsccccccces 13

Virginia v. Rives, 100 U.S. 313 (1879) ............-.- 21

Wainwright v. Sykes, 433 U.S. 72 (1977) .........+++- 23

Whitten v. Tomlinson, 160 U.S. 231 (1895) ......... 16, 22

U.S. CONSTITUTION

CER, Same GRE Oo wh is nee 6 ed we deidcdcves 14

STATUTES AND RULES

28 U.S.C. § 2244 (1996) ....... cc ceceeeceeeees passim

28 U.S.C. § 2244(b) (1966) ..... 6. cece cece e ee eeees 11

BUBL. SAID GID ccccevcccccvsdtecvesctssvste 9

FOU CHO GEED cc cdcccccecccccccccccces 8, 23

BBUBL. OARS ID oc cccdecccccvcccescccccsss 14

Judiciary Act of Sept. 24, 1789, ch. 20, 1 Stat. 73 .... 17, 18

Act of Mar. 2, 1833, ch. 57, 4 Stat. 632 .............5. 18

Act of Aug. 29, 1842, ch. 257, 5 Stat. 539............. 18

Habeas Corpus Act, ch. 81, 12 Stat. 755 (1863) ........ 19

Judiciary Act of Feb. 5, 1867, ch. 28,

SOR BED ccccccccccssccccescccccsece 19, 21

Vii

Act of Mar. 3, 1885, ch. 353, 23 Stat. 437............. 22

Act of Dec. 23, 1914, ch. 2, 38 Stat. 790 .............. 22

Act of Feb. 13, 1925, ch. 229, 43 Stat. 936 ............ 22

Act of Nov. 2, 1966, Pub. L. No. 89-711,

8 A 23

Antiterrorism and Effective Death Penalty

Act of 1996, Pub. L. No. 104-132,

1996 U.S.C.C.A.N. (110 Stat.) 1214 ...... passim

Habeas Corpus Rule 916) ... 2... ccc ccc cece cccces 9,12

ET Stee eid obsecesccccoscetees 9, 10

LEGISLATIVE MATERIALS

Cong. Globe, 39th Cong., Ist Sess. 4151 (1866) ........ 19

Cong. Globe, 39th Cong., Ist Sess. 4229 (1866) ........ 20

President’s Signing Statement, 32 Weekly

Comp. Pres. Doc. 719 (Apr. 29, 1996),

reprinted in 1996 U.S.C.C.A.N. 961-1 ... 15, 24, 25

Joint Explanatory Statement of the

Committee of Conference, H.R. Conf.

Rep. No. 104-518 at 111 (1996), reprinted

ED TR MP UID cccccccccccccccces 15

OTHER AUTHORITIES

Brief for Respondent, United States v. Hayman,

| RESP OTTTITT TTT ETE 14

James S. Liebman & Randy Hertz,

Federal Habeas Corpus Practice

and Procedure (2d ed. 1994) .......... 18, 21, 22

Larry W. Yackle, Post-Conviction

POE 0 6Uk occ dedicccvesWecces 19

IN THE

Supreme Court of the United States

OCTOBER TERM, 1997

No. 97-300

TERRY STEWART, Director, Arizona Department

of Corrections, et al., Petitioners,

Vv.

RAMON MARTINEZ-VILLAREAL, Respondent.

INTEREST OF AMICUS CURIAE

The American Bar Association (“ABA”) submits this brief

as amicus curiae’ pursuant to Rule 37.3 of the Rules of the

Supreme Court, to provide the Court its perspective regarding

this case. The ABA? is a voluntary, national membership

organization of the legal profession. Its more than 392,000

members, from each state and territory, and the District of

Columbia, include prosecutors, public defenders, private

lawyers, trial and appellate judges from the state and federal

courts, legislators, law professors, law enforcement and

' Rule 37.3 Statement: All parties have given written consent to the filing

of this brief.

? Neither this brief nor the decision to file it should be interpreted to reflect

the views of any judicial member of the American Bar Association. No

inference should be drawn that any member of the Judicial Division Council

has participated in the adoption or endorsement of the position in this brief.

This brief was not circulated to any member of the Judicial Division

Council prior to filing.

2

corrections personnel, law students and a number of “non-

lawyer” associates in allied fields.

The ABA is dedicated to the promotion of a fair and

effective system for the administration of justice. See ABA

Const. art. 1, § 1.2. During the past two decades, that

dedication has led the ABA to make habeas corpus one of its

priorities. In 1982, the Association adopted a comprehensive

policy urging specific reforms in federal and state

postconviction procedures. In 1983 and 1991, the ABA

provided testimony and written materials to both Houses of

Congress considering reform of the habeas corpus statutes.

The ABA has been concemed particularly with the admini-

stration of justice in habeas corpus proceedings brought by

prisoners sentenced to death in state courts. In 1989, under a

grant from the State Justice Institute, an ABA task force ©

conducted an intensive study of death penalty habeas corpus

reform. Based upon the task force’s report and recommen-

dations, the ABA in 1990 adopted, by overwhelming vote, a

comprehensive policy statement which urged legislative reform

of habeas corpus procedures, both state and federal, to make

them more efficient and better able to address the merits of the

fundamental claims many postconviction petitions raise in

capital cases. The ABA is keenly aware of the need for reform

of habeas corpus procedures, and has worked hard during the

past two decades to achieve that reform. The ABA, however,

has never advocated reform at the expense of justice.

SUMMARY OF ARGUMENT

Reform at the expense of justice is precisely what

Petitioners and their amici would have this Court believe was

and Effective Death Penalty Act of 1996, Pub. L. No. 104-132,

3

1996 U.S.C.C.A.N. (110 Stat.) 1214 (“AEDPA”). Petitioners

and their amici argue that Congress intended that the AEDPA

forever bar a state prisoner from bringing a properly preserved

and presented Eighth Amendment competency claim before a

federal habeas court. Petitioners come to this irrational result

by ignoring, and asking this Court to ignore, cardinal rules of

statutory construction that this Court has long applied.

Furthermore, Petitioners’ argument requires this Court to

conclude that Congress, breaking with two hundred years of

history, has for the first time decided to revoke a prisoner’s

right to have a federal court hear a federal constitutional claim,

and has done so in a most ambiguous manner.

Since the birth of our nation, Congress and this Court

always have guaranteed prisoners at least one opportunity to

raise, in a federal court, all federal constitutional challenges to

their incarceration. That opportunity, whether technically

styled as writ of error, removal, or habeas review, always has

been a matter of right and not simply a matter of discretionary

review. Neither the text nor the legislative history of the

AEDPA provide the clear evidence necessary for this Court to

determine that Congress has now decided to break with this

heritage.

The interpretation of the statute advocated by Petitioners

is also inconsistent with the text and central purpose of the

AEDPA. Section 2244 was designed and drafted to require that

prisoners bring all of their claims in a single habeas petition,

lest prisoners “abuse” the right to habeas corpus by holding

back claims for successive petitions, or by simply filing

redundant petitions. Here, Respondent did precisely what he

was supposed to do: he bundled all his claims into a single

petition. Having persuaded the lower courts that Respondent’s

competency claim was premature, it is Petitioners who seek to

abuse habeas law by reading it, against two hundred years of

4

tradition, to bar federal review of a properly preserved and

presented constitutional claim.

Simply put, reading the AEDPA to bar a federal court from

determining a properly preserved and presented constitutional

competency claim leads to an “absurd” result. As this Court

has consistently held, a statute should never be so interpreted.

ARGUMENT

I. THIS COURT SHOULD CONCLUDE THAT

SECTION 2244 CANNOT RATIONALLY BE

INTERPRETED TO BAR PROPERLY PRESERVED

CLAIMS THAT WERE RAISED BUT NOT DETER-

MINED IN A PRIOR HABEAS APPLICATION.

A. Reading Section 2244 To Bar Claims That Were

Raised In A Prior Habeas Application But Deferred

As Premature Would Be Irrational And Would

Thwart The Purpose Of The AEDPA.

Section 2244(b)(1), which requires that claims “presented

in a prior application” be dismissed, cannot be construed to bar

claims that a federal habeas court expressly declined to hear on

prematurity grounds in the proceedings upon the prior

application. Rather, that section must refer to claims that

actually were “presented” -- that is, raised and determined --

in a prior application.’ Otherwise, the central purpose of

Section 2244, which Petitioners concede is to give applicants

“one bite at the apple” of federal habeas relief (Petitioners’ Br.

> A claim that was not properly preserved in the state courts, however, is

procedurally defaulted and may not be “presented,” in the language of the

AEDPA, even in an applicant’s original habeas corpus application. See,

e.g., Coleman v. Thompson, 501 U.S. 722 (1991).

5

at 12), is thwarted. Section 2244 simply cannot rationally be

interpreted to apply to claims that a habeas applicant properly

presented in state court, and timely raised in his earlier habeas

application, but that the habeas court, at the behest of

Petitioners, refused to determine.

The fact that Section 2244 concerns claims that actually

were heard and determined in a prior habeas application is

demonstrated by the Section’s title: “Finality of determina-

tion.” The thrust of Section 2244(b)(1) is to assure that a

federal “determination” of habeas claims is final. A properly

preserved claim is determined when it has been adjudicated on

the merits.‘ There has never been any such “determination”

here; rather, the lower courts concluded that one of

Respondent’s properly preserved and presented claims should

be deferred to a later time.

Section 2244(b)(2) compels applicants to bundle their

habeas claims together for a single federal “determination.”

That is precisely what Respondent did. Specifically, Respon-

dent included his competency claim under Ford v. Wainwright,

477 U.S. 399 (1986), with his other habeas claims and

submitted them all to the federal district court in his earlier

habeas application. Petitioners, however, argued that the Ford

competency claim was “premature” and urged the district court

not to determine it: “To do a competency determination now

would be futile, because it will certainly have to be repeated

when the time for execution finally arrives.” Martinez-

Villareal v. Stewart, 118 F.3d 628, 630 n.1 (9th Cir. 1997)

(quoting Petitioners’ Reply to Response to Motion for

Summary Judgment). The district court accepted Petitioners’

* The “determination” to which Section 2244 accords “finality” as to a

claim that was not properly preserved in state court is the determination that

the claim is procedurally defaulted. See n.3 at p.4 above.

6

argument, holding that the competency claim was “premature.”

The court of appeals affirmed, and expressly “declined to

address [Respondent’s] competency claim because it was

premature.” Jd at 630. The court of appeals left no doubt that

it was reserving determination of the competency question for

a later proceeding:

To eliminate any ambiguity, we reiterate that the claim of

[Respondent’s] current incompetence was denied as

premature by the district court. ... Our instruction to enter

judgment denying the petition is not intended to affect any

later litigation of that question.

Martinez-Villareal v. Lewis, 80 F.3d 1301, 1309 n.1 (9th Cir.

1996).

Having successfully persuaded the district court and the

court of appeals not to determine Respondent’s competency

claim until his execution was scheduled because that claim

supposedly was “premature,” Petitioners now urge that Section

2244 be interpreted to bar the competency claim forever,

though a federal habeas court has never determined that

properly preserved claim. Petitioners thus urge an interpreta-

tion of Section 2244 that would force Respondent to pay with

his life for having sought to raise his Ford claim at all possible

times because, in doing so, he acted both too early and too late.

That interpretation of Section 2244 is simply “unfathomable.”

Green v. Bock Laundry Mach. Co., 490 U.S. 504, 510 (1989)

(holding that regardless of text of Federal Rule of Evidence,

language could not be read to engender an irrational result). It

“produces an absurd, and perhaps unconstitutional, result” that

7

“cannot rationally” be accepted. Jd. at 527-28 (Scalia, J.,

concurring in judgment).*

This Court has long recognized that it should avoid reading

a statute in a manner that produces an absurd result. See

Rowland v. California Men's Colony, 506 U.S. 194, 200 n.3

(1993). Were this the only possible “plain language” interpre-

tation of Section 2244, this Court would be called upon to

interpret and qualify that Section’s language in a way that

“does least violence to the text.” Green, 490 U.S. at 529

(Scalia, J., concurring in judgment). Here, however, this Court

does not have to engage in reading the language in a manner

that “does least violence to the text” because there is a reason-

able interpretation of Section 2244(b)(1) that avoids any

absurdity and does no violence to the text (see Section I.B

below) -- that is, to read that section to bar only those properly

preserved claims that were raised and determined in a prior

federal habeas application.

* The absurdity of this position is highlighted by the fact that its closest

parallel is found not in the annals of our own government, but in that of

fictional Fredonia, where newly appointed leader Rufus T. Firefly opened

his first Cabinet meeting with the following exchange:

Firefly: Hello members of the cabinet. We'll take up old

business.

Deputy: (Raises hand and stands) I wish to discuss the tariff.

Firefly: Sit down. That’s new business.

Deputy: (Sits).

Firefly: (Looks around the table. No one raises a hand.) No old

business? Very well. Then we take up new business.

Deputy: (Stands) Now about that tariff. . .

Firefly: Too late! That’s old business already. Sit down.

“Duck Soup” (© Paramount Pictures, Inc. 1933).

A contrary reading would mean that, whenever a federal

court dismisses a habeas application raising premature or

unexhausted claims, those claims would be barred forever. See

Rose v. Lundy, 455 U.S. 509, 522 (1982) (“[A] district court

must dismiss habeas petitions containing both unexhausted and

exhausted claims.”). Yet Congress implicitly has directed the

contrary result in Section 2254(b)(2). After codifying the

exhaustion rule in Section 2254(b)(1), Congress states that

“[ajn application for a writ of habeas corpus may be denied on

the merits, notwithstanding the failure of the applicant to

exhaust the remedies available in the courts of the State.” 28

U.S.C. § 2254(b)(2). By using the word “may,” Congress

authorized dismissal for failure to exhaust -- as opposed to

“denial on the merits” -- with the clear expectation that the

dismissed applicant later will file a subsequent application

containing the newly exhausted claims that did not warrant

being “denied on the merits” in their unexhausted state. This

subsequent application, though numerically a second

application, could not be a “second or successive” application

barred by Section 2244(b)(1). If Section 2244(b)(1) were read,

as Petitioners urge, to bar all subsequent claims, then Section

2254(b)(2) would be surplusage since there could be no such

subsequent application. This reading would conflict with the

“elementary canon of construction that a statute should be

interpreted so as not to render one part inoperative.” Colautti

v. Franklin, 439 U.S. 379, 392 (1979).

B. Congress’s Use Of The Term “Second Or

Successive,” Which This Court And The Habeas

Corpus Rules Have Defined, Reflects The Intention

That Previously Undetermined Claims Not Be

Barred.

The term “second or successive” did not come to the

AEDPA devoid of history or prior meaning in the habeas

9

context. Both Habeas Corpus Rule 9(b) and previous case law

defined “second or successive.” This Court has noted that the

term “successive petition” has developed a “distinct meaning.”

Kuhlmann v. Wilson, 477 U.S. 436, 444 n.6 (1986) (plurality

opinion). Specifically, a “successive petition” is one that

“raises grounds identical to those raised and rejected on the

merits on a prior petition.” Jd (emphasis added); see also

McCleskey v. Zant, 499 U.S. 467, 487 (1991) (quoting Habeas

Corpus Rule 9(b)). In passing the AEDPA, Congress was no

doubt aware of the meaning of “successive” in the context of

habeas proceedings. “It is always appropriate to assume that

our elected representatives, like other citizens, know the law.”

Cannon v. University of Chicago, 441 U.S. 677, 696-97 (1979)

(relying on prior judicial interpretation of statutory language in

Title VI to inform interpretation of Title IX).

When Congress passed the AEDPA, it took into account

possible conflicts with codified Rules, and it amended Rules

inconsistent with the new law to make them consistent with the

AEDPA. For example, before the enactment of the AEDPA,

Federal Rule of Appellate Procedure 22 read:

In a habeas corpus proceeding in which the detention

complained of arises out of process issued by a state court,

an appeal by the applicant for the writ may not proceed

unless a district or circuit judge issues a certificate of

probable cause.

On the same day Congress enacted the AEDPA, it amended

Rule 22 so that it would read consistently with the certification

requirements in the AEDPA. Rule 22 now requires judges to

issue certificates of appealability pursuant to amended 28

U.S.C. § 2253. Fed. R. App. P. 22 (amended 1996).

10

Congress did not, however, amend Habeas Corpus Rule

9(b), which before and after the enactment of the AEDPA read:

A second or successive petition may be dismissed if the

judge finds that it fails to allege new or different grounds

for relief and the prior determination was on the merits or,

if new and different grounds are alleged, the judge finds

that the failure of the petitioner to assert those grounds in

a prior petition constituted an abuse of the writ.

Habeas Corpus Rule 9(b) (emphasis added). Congress thus left

Rule 9(b) intact, finding it consistent with the AEDPA. The

only reasonable conclusion is that Congress intended the courts

to continue treating some subsequent petitions as if, legally,

claims, although presented in an cartier petition, were not then

“determin[ed] . . . on the merits .. . .” Habeas Corpus Rule

9(b). If Congress thought that Habeas Corpus Rule 9(b) was

inconsistent with the AEDPA, it would have amended that

Rule, as it did with Federal Rule of Appellate Procedure 22.

In the absence of a specific definition in Section 2244, this

Court should look to the fact that Congress left intact the Rule

9(b) language defining a successive petition as one that was

previously determined on the merits. Nothing in the text or

legislative history of the AEDPA indicates that Congress

intended to alter this distinct meaning of the term. This Court

has said that “[wJhere Congress has not expressly declared a

word to have a particular meaning, it will be presumed to have

used the word in its well-understood public and judicial

meaning.” Toxaway Hotel Co. v. Smathers & Co., 216 U.S.

439, 439 (1910) (emphasis added); see also Ankenbrandt v.

Richards, 504 U.S. 689, 700-01 (1992) (applying same rule

where Congress re-enacts a statute after this Court has inter-

preted the language of the former provision).

11

Based upon this well-established meaning of “second or

successive” petition, the courts of appeals uniformly have held

that Section 2244 does not apply to habeas applications

asserting claims that were raised in a prior application but were

dismissed as unexhausted or for failure to comply with filing

requirements. See Dickenson v. Maine, 101 F.3d 791, 791 (ist

Cir. 1996) (exhaustion); Camarano v. Irvin, 98 F.3d 44, 46-47

(2d Cir. 1996) (exhaustion); Christy v. Horn, 115 F.3d 201, 208

(3d Cir. 1997) (exhaustion); Jn re Gasery, 116 F.3d 1051, 1052

(Sth Cir. 1997) (exhaustion); Benton v. Washington, 106 F.3d

162, 165 (7th Cir. 1996) (filing requirements); Jn re Turner,

101 F.3d 1323, 1323 (9th Cir. 1997) (exhaustion). The same

result must apply to claims that were dismissed as premature.

Section 2244 -- the Section entitled “Finality of determina-

tion” -- simply cannot reasonably be interpreted to apply to

properly preserved claims that were never determined.

Petitioners’ arguments rest on the notion that Congress

impliedly redefined “successive” so that it no longer retains its

prior meaning. Before the enactment of the AEDPA, Section

2244(b) read:

When after an evidentiary hearing on the merits of a

material factual issue, or after a hearing on the merits of an

issue of law . . . a subsequent application for a writ of

habeas corpus . . . need not be entertained by a court of the

28 U.S.C. § 2244(b) (1966). Petitioners point out that the

AEDPA no longer includes the phrase “on the merits,” and

incorrectly conclude that the world of “successive petitions” is

now divisible into just two categories: (1) claims that were

previously presented, regardless of whether or how they were

determined in the prior petition; and (2) claims that were not

12

presented, but fall into one of the specified exceptions.

(Petitioners’ Br. at 10-11).

Petitioners’ literal reading is incorrect. Courts have

recognized that:

It is one of the surest indexes of a mature and developed

jurisprudence not to make a fortress out of the dictionary;

but to remember that statutes always have some purpose or

object to accomplish.

Cabell v. Markham, 148 F.2d 737, 739 (2d Cir.) (L. Hand, J.),

aff'd, 326 U.S. 404 (1945). This Court in proposing and later

in interpreting Rule 9(b), and Congress in confirming and

adopting that provision and then in repeating its language in

amended Section 2244(b), have clearly revealed the “purpose

or object” of Section 2244(b): to give habeas corpus applicants

one, and only one, shot at a federal judicial determination of

their properly preserved constitutional claims. Removing the

words “on the merits” does not suggest an intent to redefine the

phrase “second or successive” but rather to preserve the term-

of-art meaning. Thus, if a claim raised in a prior habeas

petition is rejected on procedural default grounds, e.g.,

Coleman v. Thompson, 501 U.S. 722, 731-32 (1991), the claim

has not been denied “on the merits” but it has been

“determined” previously. Accordingly, any attempt to present

the claim in a later habeas application would be “successive”

as the term of art is used in Rule 9(b) and the amended Section

2244(b) -- although not necessarily under a “plain meaning”

interpretation of the “on the merits” language that Congress

deleted from the prior Section 2244(b).

* See n.4 at p.5 above.

13

C. This Court Should Interpret Section 2244 So As To

Avoid A Needless Constitutional Inquiry.

This Court long has recognized that:

When the validity of an act of the Congress is drawn in

question, and even if a serious doubt of constitutionality is

raised, it is a cardinal principle that the Court will first

ascertain whether a construction of the statute is fairly

possible by which the question may be avoided.

Crowell v. Benson, 285 U.S. 22, 62 (1932). Chief Justice

Marshall first stated that prudential rule of statutory construc-

tion in his “opinion for the Court in Murray v. The Charming

Betsy, 2 Cranch 64, 118 (1804), and [it] has for so long been

applied by this Court that it is beyond debate.” Debartolo

Corp. v. Florida Gulf Coast, 485 U.S. 568, 575 (1988). It

remains effective today. E.g., United States v. X-Citement

Video, Inc., 513 U.S. 64, 69 (1994).

If the court of appeals below had read Section 2244 to bar

Respondent’s competency claim, it would have opened a

Pandora’s box of constitutional issues -- to some, but not all, of

which Petitioners and their amici devote numerous pages of

complex and arduous analysis. The court of appeals recognized

that there were “strong indications that under these narrow

circumstances [when a claim will always be premature on a

first petition], the new statute poses a serious constitutional

problem.” Martinez-Villareal v. Stewart, 118 F.3d 628, 632

(9th Cir. 1997). Specifically, the court of appeals would have

had to address if barring a prisoner’s ability to have his

competency claim heard in federal court constituted a

suspension of the writ of habeas corpus in violation of the

United States Constitution. The court of appeals prudently, and

properly, avoided such a complex inquiry.

14

Similarly, this Court previously has construed the habeas

statute to avoid addressing the relatively uncharted territory of

the Suspension Clause of the United States Constitution. See

U.S. Const. art. I, § 9, cl. 2. Confronting the propriety of

changes to Section 2244 concerning successive petitions in

Sanders v. United States, 373 U.S. 1, 11-12 (1963), the Court

warned that “if construed to derogate from the traditional

liberality of the writ of habeas corpus, . . . § 2244 might raise

serious constitutional questions.” By reading the new Section

2244(b) to permit habeas courts to consider the “ends of

justice,” however, the Court averted a constitutional question.

Similarly, in United States v. Hayman, 342 U.S. 205, 223

(1952), the Respondent argued that the new Section 2255 might

violate the Suspension Clause.’ The Court avoided the ques-

tion by noting that Section 2255 preserved the traditional writ

as a backstop.

Unless a constitutional construction of Section 2244(b) is

“plainly contrary to the intent of Congress,” this Court again

should construe that statute to avoid constitutional problems.’

’ The influential argument that the Suspension Clause mandates access to

habeas corpus in the federal courts is found in the Brief of Paul A. Freund,

Counsel for Respondent in Hayman at 29: “[H]aving established Federal

courts Congress would be powerless to deny the privilege of the writ.

Otherwise, Article 1, section 9 would be reduced to a dead letter.”

* In signing the AEDPA into law, President Clinton, concerned about the

constitutionality of another provision in the AEDPA, specifically relied on

the federal courts continuing their practice of construing a statute to avoid

a needless constitutional problem:

I expect that the [federal] courts, following their usual practice of

construing ambiguous statutes to avoid constitutional problems,

will read section 104 [of the AEDPA] to permit independent

Federal court review of constitutional claims based on the

15

Debartolo Corp., 485 U.S. at 575, citing NLRB v. Catholic

Bishop, 440 U.S. 490, 499-501, 504 (1979). Such a construc-

tion would not be “plainly contrary to the intent of Congress”

in this case. Jd The purpose of the AEDPA is “to curb the

abuse of the statutory writ of habeas corpus, and to address the

acute problems of unnecessary delay and abuse in capital

cases.” Joint Explanatory Statement of the Committee of

Conference, H.R. Conf. Rep. No. 104-518 at 111 (1996),

reprinted in 1996 U.S.C.C.A.N. 924, 944. As this Court has

stressed, “[tJhe new restrictions on successive habeas petitions

constitute a modified res judicata rule, a restraint on what is

called in habeas practice ‘abuse of the writ.”” Felker v. Turpin,

116 S. Ct. 2333, 2340 (1996). “Abuse of the writ” occurs when

a petitioner deliberately or inexcusably withholds available

grounds in a first application for collateral review and then

attempts to raise them later. Sanders, 373 U.S. at 18.

Respondent in this instance has not abused the writ of

habeas corpus: he has not caused unnecessary delay and is not

seeking repetitious review of a claim that a habeas court

already has determined. Respondent filed his competency

claim with his other claims in his earlier federal habeas petition

as Section 2244 mandated. Petitioners persuaded the lower

court that the competency claim was not yet ripe for

determination. That being the case, the court of appeals

correctly determined that the AEDPA does not bar this claim

now that it is fully ripe.

Supreme Court’s interpretation of the Constitution and Federal

laws.

President’s Signing Statement, 32 Weekly Comp. Pres. Doc. 719 (Apr. 29,

1996), reprinted in 1996 U.S.C.C.A.N. 961-3.

16

Il. THIS COURT SHOULD NOT READ THE AEDPA

TO PRECLUDE HABEAS REVIEW OF A FORD

CLAIM BECAUSE CONGRESS ALWAYS HAS

GRANTED FEDERAL REVIEW AS OF RIGHT FOR

DETERMINATION OF FEDERAL RIGHTS AND

CONGRESS DID NOT CLEARLY REVOKE THAT

RIGHT IN THE AEDPA.

Since 1789, Congress’s mandate concerning federal

protection of federal rights has been unequivocal. For every

federal constitutional right available to persons incarcerated

pursuant to federal or state authority, Congress has insisted

upon a full, meaningful remedy in federal court for violations

of that right. Whether technically styled as writ of error,

removal, or habeas review, Congress has always provided the

right of access to a federal forum for any prisoner with a federal

constitutional claim. See Whitten v. Tomlinson, 160 U.S. 231,

238-39 (1895) (discussing the interchangeability of these three

methods of review).

Congressional action “inform[s]” this Court’s interpreta-

tion of habeas review. See Felker v. Turpin, 116 S. Ct. 2333,

2339 (1996) (noting that congressional legislation “inform{s]”

Court’s consideration of original habeas petitions). Two hun-

dred years of congressional action indicate that Congress has

always provided for federal review as of right for federal

constitutional claims. At times when Congress was particularly

concerned with the effectiveness of state review of these

claims, Congress even provided state prisoners

multiple avenues of federal review as of right. Nothing in the

AEDPA or its legislative history indicates that Congress, for

the first time in this nation’s history, has now decided to deny

a prisoner the right to have a federal court hear his federal

claim. Given the historical role of federal review, this Court

should not now interpret the AEDPA to revoke impliedly

17

Respondent’s right to bring his properly preserved and

presented Eighth Amendment claim in federal court.

Federal review as of right for federal constitutional claims

has existed continuously since the founding of this nation. One

of the earliest acts of the First Congress created the federal

judiciary and delineated some of the rights of persons in

custody pursuant to federal or state authority. See Judiciary

Act of Sept. 24, 1789, ch. 20, § 14, 1 Stat. 81-82. In the 1789

Act, Congress established two avenues for federal review of

federal claims. First, Section 14 of the Act created a federal

habeas corpus remedy for violations of constitutional rights and

made that remedy available to all prisoners “in custody, under

or by colour of the authority of the United States.” Jd; see also

Ex parte Boliman, 8 U.S. (4 Cranch) 75, 95 (1807) (discussing

congressional “obligation” to create habeas jurisdiction in the

federal courts). Although the habeas corpus powers of federal

courts as codified in the 1789 Act extended only to federal

prisoners, so too did the Bill of Rights and other federal

protections. Barron v. Mayor and City Council of Baltimore,

32 U.S. (7 Peters) 243 (1833). State prisoners simply had few

federal rights needing federal protection.

The second avenue, however, did provide state prisoners

with federal judicial protection. In Section 25 of the 1789 Act,

Congress extended writs of error as of right to state prisoners

who were denied relief “in the highest court of law . . . of a

State in which a decision in the suit could be had” on claims

challenging a state statute or other state authority “on the

ground of [its] being repugnant to the constitution, treaties or

. . the constitution, . . . a treaty, [or] statute . . . of the United

States.” See Judiciary Act of Sept. 24, 1789, ch. 20, § 25,

1 Stat. 73, 85-86. Writ of error jurisdiction afforded this Court

an opportunity to review de novo legal claims of state prisoners

18

based on federal rights. See Cohens v. Virginia, 19 U.S. 264,

414-15 (1821). Unlike modern certiorari, writ of error was a

matter of right, not of this Court’s exercise of discretion. See

Judiciary Act of Sept. 24, 1789, ch. 20 , § 25, 1 Stat. 73, 85-86;

1 James S. Liebman & Randy Hertz, Federal Habeas Corpus

Practice and Procedure § 2.4(d), at 39-40 (2d ed. 1994).

In the first half of the 19th century, Congress began

affording substantive rights to certain classes of persons

incarcerated by the states. In each instance, Congress

accompanied its grant of rights with a coextensive federal

remedy for violations of those rights. Furthermore, Congress

was specifically concerned that the method of federal review

provided would be effective in safeguarding the newly granted

rights. For example, Congress determined that certain states,

intent on interfering with federal officers acting pursuant to

federal authority, could effectively evade writ of error review

by employing protracted pretrial confinement. See 1 Federal

Habeas Corpus Practice and Procedure § 2.4(d), at 40. Thus,

in 1833 Congress empowered federal courts to entertain habeas

petitions from state prisoners, or to exercise removal

jurisdiction over state prisoners, who claimed to have acted

under federal law. See Act of Mar. 2, 1833, ch. 57, § 7, 4 Stat.

632, 634. At the time, there was no doubt that federal

authorization could have been raised as a defense to any

prosecution in state court. See Martin v. Hunter's Lessee, 14

U.S. (1 Wheat.) 304 (1816). Nevertheless, Congress obligated

federal courts in habeas proceedings to re-examine those

federal defenses.

Congress to act when, in 1842, it extended federal rights to

another class of persons in state custody, this time foreign

nationals held on account of an act claimed to have been done

under color of foreign authority. See Act of Aug. 29, 1842, ch.

19

257, 5 Stat. 539. Congress again legislated enforcement of

those federal rights by authorizing federal courts to grant writs

of habeas corpus to state prisoners protected by the Act. See Jn

re Neagle, 135 U.S. 1, 71-72, 74 (1890).

The Civil War revolutionized the relationship between the

states and the federal government. One manifestation of that

change was an expansion of federal civil rights and their

application in state proceedings. And as federal rights grew, so

too did the habeas corpus remedy and other forms of federal

review designed to protect those rights in federal courts if state

local authorities” would fail to enforce newly created federal

rights, addressed the situation by expanding all three avenues

of federal review as of right. See Larry W. Yackle, Post-

Conviction Remedies § 19, at 86 (1981). The first expansion

came when, in 1863, Congress expanded removal jurisdiction

and authorized removal to federal court, either pre-judgment or

post-judgment, of any claim arising under the Constitution,

laws or treaties of the United States. Habeas Corpus Act, ch.

81, § 5, 12 Stat. 755, 756-57 (1863). But Congress did not

relegate state prisoners to only this avenue of access to federal

appellate review.

When the Fourteenth Amendment, together with a number

of civil rights statutes, extended federal protections to all state

prisoners, the same Congress that passed this amendment

immediately gave the federal courts the “power to grant writs

of habeas corpus in all cases where any person may be restrain-

ed of his or her liberty in violation of the constitution, or of any

treaty or law of the United States.” Judiciary Act of Feb. 5,

1867, ch. 28, § 1, 14 Stat. 385, 385. The legislative history of

this 1867 Act is sparse but unambiguous. Congress proclaimed

its intention to make habeas corpus “a bill of the largest

liberty,” available to “enforce the liberty of all persons.” Cong.

20

Globe, 39th Cong., 1st Sess. 4151 (1866) (Rep. W. Lawrence).

As Senator Trumball succinctly described the relationship

between the new Fourteenth Amendment rights and Congress’s

simultaneous extension of the habeas corpus remedy:

Now a person might be held under a State law in violation

of the Constitution and laws of the United States, and he

ought to have . . . the benefit of the writ . . . [and] recourse

to United States courts to show that he was illegally

imprisoned in violation of the Constitution or laws of the

United States.

Cong. Globe, 39th Cong., Ist Sess. 4229 (1866).

This Court clearly and promptly recognized the scope of

federal court power to review state court adjudication of the

newly enacted federal rights. One year after passage of the

1867 Act, Justice Chase, speaking for a unanimous Court,

explained:

This legislation is of the most comprehensive character. It

brings within the habeas corpus jurisdiction of every court

and of every judge every possible case of privation of

liberty contrary to the National Constitution, treaties, or

laws. It is impossible to widen this jurisdiction.

Ex parte McCardle, 73 U.S. (6 Wall.) 318, 321-22 (1868).

Eighteen years later, in Ex parte Royall, 117 U.S. 241, 247

(1886), the Court again stated that “[t]he grant. . . of

jurisdiction to issue writs of habeas corpus, is in language as

broad as could well be employed.” See also id. at 253 (citing

Ex parte Bridges, 2 Woods 428 (Sth Cir. 1875)).

The same Reconstruction Congress that expanded the

habeas corpus remedy also simultaneously expanded writ of

21

error jurisdiction, affirmatively guaranteeing a federal forum as

of right for a state prisoner to air his federal claims. Judiciary

Act of Feb. 5, 1867, ch. 28, § 2, 14 Stat. 385. Under the

amended standard, the Supreme Court’s writ of error

jurisdiction was no longer restricted to cases where a federal

question error appeared on the “face of the record.” Jd

Through the combination of that expanded writ of error

provision, the broadened habeas remedy, and the 1863 removal

statute, Congress demonstrated its distrust of the effectiveness

of state remedies to guarantee federal rights by “widen{ing] the

range of claims cognizable in all three types of proceedings up

to Article ITI’s federal-question maximum”:

Through all three modes of review, Congress sought to

assure prisoners of one full opportunity to enforce their

newly given national rights in a national court, whether

via expanded writ of error review on appeal in the

Supreme Court, or -- lest the state courts’ expected syste-

matic resistance negate rights before writ of error remedies

matured -- via the extension to ail prisoners of full-

fledged, pre-writ-of-error habeas corpus and removal

protections.

1 Federal Habeas Corpus Practice and Procedure § 2.4(d), at

41, 42-43 (emphasis added).

Following the Reconstruction era, Congress focused on

guaranteeing the availability of at least one effective avenue of

federal review as of right for the determination of federal

rights. After this Court narrowly construed the post-war federal

question removal statutes, the focus shifted to the use of the

writ of error as the primary vehicle for federal review. See

Virginia v. Rives, 100 U.S. 313, 319, 322 (1879). Because the

writ of error, unlike modern certiorari, provided review as of

22

period. Beginning in 1885, both Congress and the Court began

to scale back on habeas corpus. Congress restored the Supreme

Court’s appellate habeas jurisdiction in an effort to create

uniformity in habeas review by the lower courts. Act of Mar.

3, 1885, ch. 353, 23 Stat. 437; see also 1 Federal Habeas

Corpus Practice and Procedure § 2.4(d), at 46. This Court

understood the 1885 Act to identify the Court’s own “writ of

error from the highest court of the State” as the preferred mode

of federal appellate review as of right. Ex parte Royall, 117

U.S. 241, 253 (1886). Hence, this Court substituted de novo

review as of right in the Supreme Court for the exact form of

review that lower federal courts would have provided on

habeas review. See Whitten, 160 U.S. at 238-39 (comparing

writ of error, removal, and habeas review).

This Court continued to exercise habeas review, however,

whenever writ of error review could not afford an effective

remedy. See, e.g., Pettibone v. Nichols, 203 U.S. 192, 202

(1906) (interlocutory extradition proceedings); Felts v. Murphy,

201 U.S. 123, 128-30 (1906) (petitioner could not afford to pay

for transcript necessary to permit exhaustion of state remedies

and then writ-of-error remedies); Storti v. Massachusetts, 183

U.S. 138, 142-43 (1901) (immediate review necessary because

of impending execution).

By the beginning of this century, the practical difficulties

inherent in placing before this Court all federal review for the

growing nation led to the erosion of the writ of error. In 1914,

Congress acknowledged the growing ineffectiveness of writ of

error review by enacting the first in a series of laws that would

replace this Court’s mandatory writ of error review with

discretionary certiorari review. See Act of Dec. 23, 1914, ch.

2, 38 Stat. 790. These developments culminated in the near

complete replacement of the writ of error by discretionary

certiorari review in 1925. See Act of Feb. 13, 1925, ch. 229,

23

§ 237, 43 Stat. 936, 937. At the same time the writ of error was

being replaced, however, this Court re-established the federal

habeas remedy as the primary method of federal judicial

redress as of right of constitutional violations culminating in

incarceration. These changes began in Frank v. Mangum, 237

U.S. 309, 329-32 (1915), and Moore v. Dempsey, 261 U.S. 86,

90-92 (1923), which recognized the expanded scope now due

habeas review in light of the decline of writ of error review.

This Court confirmed the changes in Brown v. Allen, 344 U.S.

443 (1953), and Congress codified them in full in 1966. See

Act of Nov. 2, 1966, Pub. L. No. 89-711, 80 Stat. 1104 (current

version at 28 U.S.C. §§ 2244, 2254); see, e.g, Herrera vy.

Collins, 506 U.S. 390, 403 (1993) (habeas is available to

redress “ny constitutional violation which had occurred at the

first trial”); McCleskey v. Zant, 499 U.S. 467, 479 (1991)

(habeas is available to resolve “all dispositive constitutional

claims presented in a proper procedural manner”); Teague v.

Lane, 489 U.S. 288, 306 (1989) (plurality opinion) (discussing

the “broad scope of constitutional issues cognizable on

habeas”); Wainwright v. Sykes, 433 U.S. 72, 79 (1977) (stating

that “a state prisoner’s challenge to the trial court’s resolution

of dispositive federal issues is always fair game [for] federal

habeas [review]”). Taken together, therefore, review on writ of

error, removal, and/or habeas corpus -- from 1789 to the

present -- has consistently assured state as well as federal

prisoners of at least one opportunity for federal judicial review

as of right of all properly preserved constitutional challenges

to their incarceration.

In the present case, Petitioners and their amici have argued

that this Court must answer the question whether habeas corpus

has expanded substantially over the course of American

history. The question, by its very nature, is both erroneous and

urelevant to the case at bar. The appropriate inquiry is whether

the reach and scope of federal court review as of right of the

24

legality of custody under constitutional law has expanded. The

answer is that it has mot. From the adoption of the Judiciary

Act of 1789 until today, Congress has authorized, and federal

courts have provided, federal review as of right of fundamental

federal questions raised by the government’s -- or a state’s --

decision to incarcerate an individual. By doing so, Congress

has firmly established the principle that a prisoner will be

afforded access to federal review as of right to air his constitu-

tional claims.

When Congress has followed such an “established princi-

ple,” this Court has held that it will find that principle aban-

doned only on “a clear showing that this result was intended.”

Ruckelshaus v. Sierra Club, 463 U.S. 680, 685 (1983)

(Rehnquist, J.); see also Ex parte Bakelite Corp., 279 U.S. 438,

454 (1929) (noting “the propriety in mentioning the fact that

Congress always has treated [an institution] as having [a

certain] status”). If Congress had intended a “radical depar-

ture” from the tradition of providing a federal forum to a state

prisoner, Congress “no doubt would have used explicit

language to this effect.” Ruckelshaus, 463 U.S. at 685 n.7.

The text and legislative history of the AEDPA give no

would effectuate this “radical departure.” It is inconceivable

that, with the passage of the AEDPA, Congress has broken now

with two hundred years of history by denying state prisoners

access to federal review as of right of a properly preserved and

presented federal constitutional claim, and has done so without

so much as a whisper.’ A proper reading of the AEDPA, in

* The President, in signing the AEDPA, noted that some had expressed

concern that it “could be interpreted in a manner that would undercut

meaningful Federal habeas corpus review.” President's Signing Statement,

32 Weekly Comp. Pres. Doc. 719 (Apr. 29, 1996), reprinted in 1996

25

light of the history of federal review, demonstrates that

Congress never considered a Ford claim to be a “second and

successive” petition when it is properly raised in a first habeas

petition but procedurally deferred to a later time.

CONCLUSION

The ABA has, for many years, championed the need for

reform in the area of habeas corpus review. With the passage

of the AEDPA, Congress has acted to address concerns relating

to abusive habeas practices, a purpose consistent with two

hundred years of history surrounding the writ of habeas corpus.

Nothing in the text or legislative history of the AEDPA

indicates that Congress intended to deny a prisoner the right to

a determination by a federal habeas court of an Eighth

Amendment claim properly preserved in state court and raised

in a timely and procedurally proper manner on habeas corpus.

This reading of the statute, proffered by Petitioners and their

amici, runs counter to the unbroken tradition of providing a

prisoner with federal review as of right to all federal

constitutional claims.

Reading the AEDPA to preclude federal review of

Respondent’s properly preserved and presented Eighth

Amendment claim also would ignore the central purpose of the

AEDPA. In keeping with this Court’s definition of a “second

or successive” application as one which had been, or could

have been but was not, raised and “determined” in a federal

court, Congress amended Section 2244 to bar a prisoner from

U.S.C.C.A.N. 961-2. The President chose to sign the bill into law,

however, “confident” that the federal courts would continue to “interpret

th{e] provisions to preserve independent review of Federal legal claims and

the bedrock constitutional principle of an independent judiciary.” /d

26

could have been previously addressed and resolved on habeas

review. Respondent in this case has never been given the

opportunity to raise his competency claim on habeas review,

first because Petitioners argued his claim was “premature,” and

now because Petitioners argue that his claim is “second or

successive.” This is precisely the kind of “absurd” result that

this Court consistently has avoided by reading statutes in a

rational manner -- and that Congress has avoided since 1789 by

providing for at least one opportunity for federal review as of

right of all constitutional challenges to incarceration.

For these reasons, the American Bar Association, as

decision of the United States Court of Appeals for the Ninth

Circuit.

Respectfully submitted,