Appendix — Calderon v. Ashmus
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~ 97-391 SEP 5 1997
NGPFFICE OF THE CLERK
IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1996
ARTHUR CALDERON, Warden; TEENA FARMON, Warden of the
Central California Women’s Facility; JAMES H. GOMEZ,
Director, California Department of Corrections; DANIEL E.
LUNGREN, Attorney General, Petitioner,
Vv.
TROY A. ASHMUS, of himself as an individual and on behalf of
himself and all others similarly situated, Respondent.
ON PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
APPENDIX TO PETITION FOR WRIT OF CERTIORARI
DANIEL E. LUNGREN
Attorney General
GEORGE WILLIAMSON
Chief Assistant Attorney General
RONALD A. BASS
Senior Assistant Attorney General
RONALD S. MATTHIAS
Supervising Deputy Attorney General
DANE R. GILLETTE
Senior Assistant Attorney General
Counsel of Record
50 Fremont St., Room 300
San Francisco, CA 94105
Telephone: (415) 356-6202
Fax: (415) 356-6486 \
Counsel for Petitioners nN i ‘
Be fr.
INDEX
Material
Decision of the court of appeals
Decision of the district court
U.S. Const., amend. XI
28 U.S.C. § 2261
28 U.S.C. 2265
Cal. Gov’t. Code § 68511.5 (West
Supp. 1977)
Cal. Gov’t. Code § 68070 (West
Supp. 1997)
Cal. Rules of Court, rule 76.5
(West 1996)
Appen. to Cal. Rules of Court,
Judicial Administration Standards
(Div. I) $ 20
(West 1996)
Cal. Pen. Code § 1241 (West 1982)
Cal.Sup.Ct. Policies Regarding Cases
Arising from Judgments of Death,
Court Rules Vol. 23, pt. 3
(West 1996 Supp. 1997)
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8la
93a
iia
L. Cal.Sup.Ct. Payment Guidelines for 99a
Appointed Counsel Representing Indigent
Criminal Appellants, Court Rules Vol. 23,
pt. 3 (West 1996)
M. Cal.Sup.Ct. Guidelines for Fixed Fee 112a
Appointments, on Optional Basis, to
Automatic Appeals and Related Habeas
Corpus Proceedings, Court Rules Vol.23,
pt. 3 (West 1996 Supp. 1997)
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FOR PUBLICATION —
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TROY A. ASHMUS, of himself as an
individual and on behalf of
himself and all others similarly
situated,
Plaintiff-Appellee,
v. No. 96-16141
D.C. No.
ARTHUR CALDERON, Warden; CV-96-10533-TEH
OPINION
Appeal from the United States District Court
for the Northern District of California
Thelton E. Henderson, District Judge, Presiding
Argued and Submitted
September 18, 1996—San Francisco, California
Submission Vacated June 11, 1997
Resubmitted August 11, 1997
Filed August 18, 1997
Before: Robert R. Beezer and David R. Thompson,
*
Circuit Judges, and Helen Gillmor,* District Judge.
* Honorable Helen Gillmor, District Judge for the
District of Hawaii, sitting by designation.
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Opinion by Judge Thompson; Dissent by Judge Beezer
COUNSEL
Ronald Matthias, Deputy Attorney General, San
Francisco, California, for the defendants-appellants.
Michael Laurence, Sternberg, Sowards & Laurence, San
Francisco, California, for the plaintiffs-appellees.
OPINION
THOMPSON, Circuit Judge:
On April 24, 1996, President Clinton signed into law
the Antiterrorism and Effective Death Penalty Act of
1996, Pub.L. No. 104-132, 110 Stat. 1214 (Act). Troy A.
Ashmus, a state prisoner who has been sentenced to
death, brought this action on behalf of himself and others
who have been sentenced to death in California. Ashmus
contends California may not take advantage of certain
benefits provided by Chapter 154 of the Act because
California has not yet qualified under the provisions of
that Chapter. Chapter 154 of the Act applies to federal
habeas corpus proceedings filed by state prisoners under
sentence of death. The district court held that California
does not qualify under Chapter 154, issued a declaratory
judgment to that effect, and preliminarily enjoined
California from attempting to invoke any of Chapter 154’s
benefits. Ashmus v. Calderon, 935 F.Supp. 1048 (N.D.Cal.
1996).
We have jurisdiction under 28 U.S.C. § 1292(a)(1) to
review the district court’s preliminary injunction. In
conducting this review, we first consider whether the
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Eleventh Amendment bars this suit. We conclude it does
not. We also conclude the district court did not err by
issuing its preliminary injunction. We clarify the terms of
that injunction, however, to provide that California is
enjoined from seeking the benefits provided by Chapter
154 under the current state of California law in cases
involving habeas corpus claims of state prisoners under
sentence of death.
FACTS
On the day the President signed the Act, Ashmus
filed this action in the district court. In his complaint he
sought a declaration that California does not qualify under
Chapter 154 and that the provisions of Chapter 154 do
not apply to the plaintiff class members’ habeas corpus
proceedings. He also sought injunctive relief prohibiting
the State from asserting in any state or federal proceeding
that it has qualified under Chapter 154, until the State
convinces the district court that it has qualified.
In a thorough opinion, the district court granted
Ashmus’s request for declaratory relief, entered its
declaratory judgment, and issue 1 a preliminary injunction.
Ashmus, 935 F.Supp. 1048. The district court determined
that California, at the present time, does not qualify for
Chapter 154’s benefits and, as a result, the provisions of
Chapter 154 do not apply to the class members’ habeas
corpus proceedings. The district court enjoined the
defendants and their agents "from trying or seeking to
obtain for the State of California the benefits of the
provisions of Chapter 154 . . . in any state or federal
proceeding involving any class member." The district
court also certified the class as:
All prisoners who have been sentenced to death
by the State of California and are currently
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awaiting execution pending resolution of their
state and federal challenges to their state
convictions and sentences, except those such
persons whose convictions and sentences were
affirmed on direct appeal prior to June 6,
1989.¥
This appeal followed.
DISCUSSION
A. The Antiterrorism and Effective Death Penalty Act of
1996 |
The Act amended Chapter 153 of Title 28, which
governs federal habeas corpus petitions filed by state
prisoners. The Act also added a new Chapter 154, which
deals exclusively with habeas corpus petitions filed by state
prisoners who have been sentenced to death. Chapter 154
applies only if a state "opts in" and qualifies under either
the "post-conviction" or “unitary review" procedures set
forth respectively in sections 2261 and 2265 of Chapter
154.
California contends it has qualified under the unitary
review procedure. Consistent with this position, the state
defendants and their agents have threatened to invoke
Chapter 154 in ali proceedings involving the plaintiff class
members.
Chapter 154 defines a “unitary review" procedure as
“a State procedure that authorizes a person under
sentence of death to raise, in the course of direct review
of the judgment, such claims as could be raised on
1. The State conceded that prior to June 1989 it did not
provide counsel in a manner which complies with Chapter 154.
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collateral attack." 28 U.S.C. § 2265(a). Thus, instead of
pursuing a direct appeal of a conviction and a sentence of
death and separately pursuing a collateral state habeas
corpus proceeding, an appellant/petitioner in California
may raise all claims in a single state appeal.
To qualify under the unitary review procedure, a state
must appoint counsel to litigate collateral claims, establish
standards of competency for the appointment of counsel,
and provide reasonable compensation for counsel to
investigate and present the collateral claims. 28 U.S.C. §
2265(a), (b). If a state satisfies these requirements and
opts into the unitary review procedure, the state is entitled
to the benefits of Chapter 154.
As stated by the district court, the Act provides a
quid pro quo arrangement. In exchange for providing
competent counsel and paying reasonable compensation
for the investigation and presentation of a condemned
prisoner’s collateral claims before a state court, Chapter
154 offers expedited review of the federal petition,
limitations on a petitioner’s ability to amend a federal
petition, and restrictions on a federal court’s review of the
inerits of a federal habeas petition.
The expedited review provisions impose limitation
periods for the filing and resolution of a federal habeas
corpus petition. A petitioner must file a federal habeas
corpus petition, subject to limited tolling provisions, “not
later than 180 days after final State court affirmance of
the conviction and sentence on [unitary review] or the
expiration of the time for seeking such review." 28 U.S.C.
§§ 2265(c), 2263(a), (b). If the petitioner fails to file a
federal petition within this time period, "no Federal court
thereafter shall have the authority to enter a stay of
execution in the case, unless the court of appeals approves
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the filing of a second or successive application under
section 2244(b)."_ 28 U.S.C. § 2262(c).
Thus, if a petitioner does not file a federal petition
within the limitations period, any petition which is filed
later is treated as if it were a second or successive petition
rather than an initial petition. In the past, we have not
addressed the merits of claims in a second or successive
petition unless the petitioner demonstrated "cause and
prejudice” or "a fundamental miscarriage of justice." See
McCleskey v. Zant, 499 U.S. 467, 494-95, 111 S.Ct. 1454,
113 L.Ed.2d 517 (1991). Although we do not decide the
question, the Act appears to apply a more stringent
standard than the standard adopted by McCleskey. See 28
US.C. § 2244(b)(1), (b)(2), (6)(3(C)?
2. Under the Act, the district court is directed to dismiss a claim
presented in a second or successive petition if that claim “was
presenicd in a prior application." 28 U.S.C. § 2244(b)(1). As a court
of appeals, we may issue an order authorizing the filing of a second
or successive petition only if the petitioner makes a prima facie
showing that the claim was not presented in a prior petition and that
the new claim:
(A) ... 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 factfinder would have
found the applicant guilty of the underlying offense.
28 U.S.C. § 2244(b)(1), (0)(2), ()(3)(C).
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Chapter 154 also attempts to expedite federal habeas
review by requiring courts to dispose of habeas petitions
within certain time limits. A district court is directed to
"render a final determination and enter a final judgment
on any application for a writ of habeas corpus brought
under this chapter in a capital case not later than 180 days
after the date on which the application is filed." 28 U.S.C.
§ 2266(b)(1)(A). A district court may extend this time
period, one time, for thirty days, for limited and specified
causes, not including a court’s congested calendar. 28
U.S.C. § 2266(c)(i), (ii), (iii). Further, the district court is
required to give priority to capital habeas petitions "over
all noncapital matters." U.S.C. § 2266(a). If the district
court does not comply with this time limitation, the state
may petition the appellate court for a writ of mandamus
and the appellate court must "act on the petition . .-- not
later than 30 days after the filing of the petition." 28
U.S.C. § 2266(b)(4)(B).
If appealed, the court of appeals must issue a final
decision "not later than 120 days after the date on which
the reply brief is filed, or if no reply brief is filed, not later
than 120 days after the date on which the answering brief
is filed." 28 U.S.C. § 2266(c)(1)(A). Further, the court of
appeals has only thirty days to decide whether to grant a
petition for rehearing or request for rehearing en banc
and, if rehearing is granted, must render a final decision
"not later than 120 days after the date on which the order
granting rehearing or rehearing en banc is entered." 28
U.S.C. § 2266(c)(1)(B)(i), (ii). The state may enforce the
time limitations governing the appellate courts by applying
for a writ of mandamus to the United States Supreme
Court. 28 U.S.C. § 2266(c)(4)(B).
We emphasize that in this appeal we express no
opinion on the construction or the constitutionality of the
Act. Those questions are not before us. The issue we
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consider is whether California has qualified under the
Act’s unitary review procedure so that California may
invoke the benefits of Chapter 154. We have highlighted
the provisions of Chapter 154 above simply to illustrate
the burdens the Act seems to impose on death penalty
prisoners and the "benefits" it seems to confer on states
who qualify under Chapter 154. Understanding these
apparent burdens and benefits is fundamental to the
analysis of whether California qualifies under Chapter 154.
Before discussing the merits of that question, however, we
first examine our jurisdiction.
B. Jurisdiction
We have jurisdiction under 28 U.S.C. § 1292(a)(1) to
review the district court’s preliminary injunction. Bernard
v. Air Line Pilots Ass’n, 873 F.2d 213, 215 (9th Cir.1989).
We do not have jurisdiction under 28 U.S.C. § 1291
to review the district court’s declaratory judgment that
California does not qualify under Chapter 154 because
other claims are still pending before the district court.
Chacon v. Babcock, 640 F.2d 221, 222 (9th Cir. 1981). A
decision is final under Section 1291 only when the decision
"ends the litigation on the m=“*- and leaves nothing for
the court to do but execute :ne judgment." Catlin v.
United States, 324 U.S. 229, 233, 65 S.Ct. 631, 89 L.Ed.
911 (1945).
In reviewing the injunction pursuant to section
1292(a)(1), however, we may examine matters which are
“inextricably bound up” with it. Marathon Oil Co. v.
United States, 807 F.2d 759, 764 (9th Cir.1986), cert.
denied, 480 U.S. 940, 107 S.Ct. 1593, 94 L.Ed.2d 782
(1987). In this appeal, whether California complies with
Chapter 154 is "inextricably bound up" with the district
court’s preliminary injunction because the district court’s
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determination that California does not comply with
Chapter 154 is the basis for the injunction. See MAI Sys.
Corp. v. Peak Computer, Inc., 991 F.2d 511, 516 (9th
Cir.1993), cert. dismissed, 510 U.S. 1033, 114 S.Ct. 671,
126 L.Ed.2d 640 (1994); Bernard, 873 F.2d at 215-16.
C. Eleventh Amendment
We next consider California’s argument that the
district court’s declaratory judgment and preliminary
injunction violate the State’s right to immunity under the
Eleventh Amendment. We conclude the present action
falls within the Ex Parte Young exception, and the
Eleventh Amendment does not bar this suit.
{1] The Ex Parte Young exception provides that the
Eleventh Amendment generally is not a bar to an action
seeking only prospective relief. See, eg, Los Angeles
County Bar Ass’n v. Eu, 979 F.2d 697, 704 (9th Cir.1992).
California, however, calls our attention to the Fourth
Circuit’s recent decision in Booth v. State, 112 F.3d 139
(4th Cir.1997). In Booth, the Fourth Circuit concluded the
Eleventh Amendment barred a similar action which
challenged whether Maryland had opted in to Chapter
154. Id. at 143-44. The Fourth Circuit concluded
Maryland’s announced intention to invoke Chapter 154 in
future habeas corpus proceedings did not threaten to
violate and did not violate any federal law. Jd. at 143.
The Fourth Circuit reasoned, "A party bringing suit must
always take the possibility of a successful affirmative
defense into account in its litigation strategy." Jd.
[2] We agree that, to fall within the Ex Parte Young
exception, the plaintiffs in this action must identify a
continuing or impending violation of federal law. See
Green v. Mansour, 474 US. 64, 73, 106 S.Ct. 423, 88
L.Ed.2d 371 (1985); see also Watkins v. Blinzinger, 789
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F.2d 474, 483-84 (7th Cir.1986). The plaintiffs satisfy this
requirement. They have demonstrated that California’s
announced intention to invoke Chapter 154 without having
complied with that Chapter’s opt-in requirements (as we
discuss later in this opinion) threatens to violate their right
to federal review of their habeas petitions, pursuant to
Chapter 153 of Title 28, and their right to the assistance
of counsel, pursuant to 21 U.S.C. § 848(q). Chapter 153
provides for a thorough federal review of a petitioner's
first habeas petition. Section 848(q) "grants indigent
capital defendants a mandatory right to qualified legal
counsel and related services in any federal post conviction
proceeding." McFarland v. Scott, 512 US. 849, 114 S.Ct.
2568, 2571, 129 L.Ed.2d 666 (1994) (internal quotations
and footnote omitted).
[3] Counsel has not yet been appointed to represent
over 130 of the condemned California inmates who make
up the plaintiff class. This number no doubt will increase
because, according to the district court’s estimate, the class
will increase by two or three members each month, and it
may take years from the date a condemned inmate
requests the assistance of counsel until counsel who will
take the case is found and appointed. By Stating its
intention to invoke Chapter 154 once a federal habeas
petition is filed, the State is forcing the condemned
inmates to make an unacceptable choice between two
options, leading to the deprivation of federal review of
their petitions. The State’s announced intention forces a
condemned inmate without counsel to decide whether to
immediately file a bare bones habeas petition, with no
assurance that the district court later will allow an
amendment; or to await the appointment of counsel and,
consequently, fail to file a petition within the 180-day
period.
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[4] Making this choice is not a matter of litigation
Strategy. It is a matter of life and death. If the
condemned prisoner chooses to await the appointment of
counsel and not file a bare bones petition within the
180-day period, he runs the risk that his initial petition will
be deemed a successive petition subject to restrictive
federal review. The downside of choosing this option is so
severe there is little likelihood a prisoner will choose it.
The risk is simply too great.
If the prisoner chooses the first option and files a
bare bones petition within the 180-day time limit of
Chapter 154, in all likelihood he will have to do so without
the assistance of counsel.” In this circumstance, he will
have little hope of identifying violations of his federal
constitutional rights which may have occurred in state
court.
It is no answer to say that a district court might allow
the condemned prisoner to amend his bare bones petition.
A district court might not allow the amendment. See 28
U.S.C. § 2266(b)(3)(B) (prohibiting amendment after
answer is filed unless petitioner demonstrates amendment
is not an abuse of the writ). Should this happen, the
prisoner will be stuck with what most likely will be a losing
first petition; and when that petition gets denied any
subsequent petition filed with the assistance of counsel will
be subject to the restrictive review accorded successive
3. We recognize that the class includes some condemned inmates
who have actually been appointed counsel. As discussed, however,
years elapse before counsel is actually appointed. Further, even
inmates with counsel may be forced to file a bare bones petition due
to the uncertainty as to whether California qualifies under Chapter
154, when California qualified, and when the 180-day period began to
run and when the period has or will expire.
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petitions. If he loses on his successive petition, he will die.
[S$] The State is not entitled to these "benefits" of
Chapter 154 unless it complies with the opt-in
requirements of that Chapter. Until it does, it remains in
noncompliance with the very federal law it seeks to use
against the prisoners; and it seeks to use this law to
deprive the prisoners of their rights to federal review
under Chapter 153 of Title 28. The State’s threat to use
Chapter 154 in this way also forces the prisoners to file
bare bones petitions within the 180-day time limit, before
counsel will have been appointed to assist them, thereby
depriving them of their right to the assistance of counsel
at this critical stage of the habeas process, in violation of
21 U.S.C. § 848(q).
[6] Permiiting this action to proceed despite
California’s Eleventh Amendment immunity defense, as
California presents that defense, will have little, if any,
impact on the State’s sovereign interests. See Idaho v.
Coeur d'Alene Tribe, 65 U.S.L.W. 4540 (June 23, 1997)
(stating court should analyze extent to which an action
affect a State’s sovereignty). California is not complaining
about being haled into federal court to determine
it qualifies under Chapter 154. Instead, Californi argues
the appropriate procedure for resolving this dispute is to
litigate the issue in each individual federal habeas
proceedings, the impact is slight. If anything, it i
of tient ota anything, it is a matter
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[7] Finally, efficiency and fairness concerns dictate
that this single action is the appropriate method to resolve
whether California qualifies under Chapter 154. These
concerns affect the determination of whether the Ex Parte
Young exception applies. See Coeur d’Alene, 65 U.S.L.W.
at 4543. If the condemned inmates were forced to litigate
the opt-in issue in each individual federal habeas
proceeding, divergent district court opinions could occur.
Resolving the issue in this single universal action will avoid
such a consequence.
[8] Deciding the issue here and now also avoids a
multiplicity of suits addressing the same issue. As District
Judge Motz observed in his opinion when Booth was
before the district court, "[rjequiring relitigation of those
questions in each habeas case is also inconsistent with the
of the Civil Justice Reform Act of 1990, 28
U.S.C. §§ 471 et seq., to reduce the cost and delay of civil
litigation in the federal courts." Booth v. State, 940
F.Supp. 849, 852 n. 3 (D.Md.1996). We also embrace
Judge Motz’s view that "it is clearly not in the interest of
any citizen of the State of [California] to have her state
and federal tax dollars wasted by having assistant attorneys
general and counsel for capital defendants appointed and
compensated under the Criminal Justice Act litigate
before multiple judges in successive pieces of litigation
issues that can easily be resolved in a consolidated
proceeding.” Jd.
[9] We conclude that the Eleventh Amendment does
not bar this action.
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D. Merits
We will uphold a district court’s grant of a
preliminary injunction unless the district court "i
applied the law, relied on clearly erroneous factual
findings, or otherwise abused its discretion." Does 1-5 y.
Chandler, 83 F.3d 1150, 1152 (9th Cir.1996). "Although
district courts have wide discretion in issuing preliminary
injunctions, ‘where the district court is alleged to have
relied on erroneous legal premises, review is plenary.” Jd.
(quoting Miller v. California Pac. Medical Ctr., 19 F.3d 449,
455 (9th Cir.1994)).
1. Declaratory Judgment
In his complaint, Ashmus asserted a "claim" or "cause
of action" under the federal Declaratory Judgment Act, 28
U.S.C. § 2201, and under 42 U.S.C. § 1983. The district
court issued its preliminary injunction as "necessary and
proper to effectuate the terms of its declaratory
judgment."" The State argues that the injunction is
ancillary to the declaratory judgment, and is improper
because Ashmus’s request for declaratory relief is not a
separate claim but is merely a remedy for his section 1983
claim. Thus, according to the State, the district court
could issue the injunction only if Ashmus made a sufficient
showing on the merits of his section 1983 claim. We
reject this argument and conclude we need not address
California’s arguments relating to the merits of Ashmus’s
section 1983 claim.
First, a district court may issue an injunction as
ancillary to a declaratory judgment. See 28 U.S.C. § 2202
(Permitting court to issue "[flurther necessary or proper
relief based on a declaratory judgment"); Doe v. Gallinot,
657 F.2d 1017, 1024-25 (9th Cir. 1981) (concluding district
court did not err in issuing injunction under section 2202).
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Further, a request for a declaratory judgment does
not require an independent underlying claim. The
Declaratory Judgment Act permits the adjudication of
rights before a claim for damages or injunctive relief
arises. Societe de Conditionnement v. Hunter Eng’g Co.,
655 F.2d 938, 942-43 (9th Cir. 1981). “In effect, it brings
to the present a litigable controversy, which otherwise
might only be tried in the future." Jd. at 943.
[10] The key inquiry is whether the invocation of
judicial authority to render a declaratory judgment is
justified. Cf. Edward Borchard, Declaratory Judgments
18, 26 (2d ed.1941). To assert a claim for declaratory
relief, a plaintiff need only demonstrate an independent
basis of federal jurisdiction and an actual case or
controversy. Cf. Schwarzer, Tashima, & Wagstaffe,
Federal Civil Procedure P 10.6 (1996); see also Eureka
Fed. Sav. & Loan v. American Casualty Co., 873 F.2d 229,
231 (9th Cir.1989) (defining actual case or controversy and
setting forth guiding principles to determine if declaration
appropriate). If the court has subject matter jurisdiction
of an actual case or controversy, a party who satisfies the
requirements for a declaratory judgment action need not
wait until a separate underlying claim arises.
[11] The district court had federal question
jurisdiction under 28 U.S.C. § 1331: the interpretation
and application of a federal statute, the Act. See
Guinasso v. Pacific First Fed. Sav. & Loan, 656 F.2d 1364,
1365-66 (9th Cir.1981), cert. denied, 455 U.S. 1020, 102
S.Ct. 1716, 72 L.Ed.2d 138 (1982).
{12} Ashmus also sufficiently demonstrated that his
action involves an actual case or controversy. He
established that the State’s threats to invoke Chapter 154
will significantly affect the plaintiff-class’s ability to obtain
habeas corpus review by a federal court. He
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demonstrated that the class members may be forced to
immediately file bare-bones petitions to comply with the
six-month filing deadline under Chapter 154. There is no
guarantee that, after filing such a bare bones petition, a
district court will allow its amendment. See 28 US.C. §
2266(b)(3)(B). By having to file an immediate federal
habeas petition, class members may waive or fail to
sufficiently develop meritorious claims.
[13] Because the plaintiff-class demonstrated that
federal jurisdiction and an actual controversy exist and no
prudential concerns warrant declining relief, see McNabb
v. Bowen, 829 F.2d 787, 794 (9th Cir. 1987), the district
court had the authority to issue a declaratory judgment.
2. Does California Qualify Under Chapter 154
As noted above, under the unitary review procedure,
to qualify for the benefits provided by Chapter 154,
California must:
establish{ ] by rule of its court of last resort or by
statute a mechanism for the appointment,
compensation, and payment of reasonable
litigation expenses of competent counsel in the
unitary review proceedings, including expenses
relating to the litigation of collateral claims in
the proceedings. The rule of court or statute
must provide standards of competency for the
appointment of such counsel.
[and] must include an offer of counsel following
trial for the purpose of representation on unitary
review
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28 U.S.C. § 2265(a),(b) (emphasis added).
California argues that the following, in combination,
constitute a "rule of its court of last resort" Se a _
standards of competency and compensation: (1
39.5 of the "Rules of Practice and Procedure Adopted by
the Judicial Council and the Supreme Court" (Rules of
Court); (2) Rules of Court 76.5; (3) Section 20 of the
Standards of Judicial Administration Recommended by
the Judicial Council; (4) the California Supreme Court’s
Statement of Internal Operating Practices and Procedures,
(5) the California Supreme Court’s Statement of Policies
ing Cases Arising from Judgments of Death; (6) Jn
re Clark, 5 Cal.4th 750, 21 Cal.Rptr.2d 509, 855 P.2d 729
(Cal.1993); and (7) California Government Code Section
68511.5.
[14] Of these sources, the only competency standards
are set forth in section 20 of the Standards recommended
by California’s Judicial Council. Section 20 provides:
The Supreme Court should maintain a list of
attorneys for appointment in death penalty cases,
based on the following minimum qualifications:
(1) active practice of law for four years in the
California state courts or equivalent experience;
(2) attendance at three approved appellate
training programs, including one program
concerning the death penalty; (3) completion of
seven appellate cases, one of which involves a
homicide; and (4) submission of two appellant’s
opening briefs written by the attorney, one of
which involves a homicide, for review by the
court or administrator.
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[15] The district court determined that California
does not qualify under Chapter 154 because (1) the
competency standards are not set forth in a "rule of court
of last resort;" (2) even if section 20 constituted a "rule of
court of last resort," section 20 does not impose binding or
mandatory competency standards and does not set forth
any requirement that counsel have any expertise in
investigating and presenting collateral habeas claims; (3)
California does not provide an adequate mechanism for
compensating counsel for the investigation and
presentation of collateral habeas claims; and (4)
California has not made a bona fide offer of counsel
because, although counsel has been offered to members
of the plaintiff class, counsel has not been timely
appointed or actually appointed for approximately a
quarter of the class members. We agree with these
determinations.
The district court correctly determined that section 20
is a recommendation but is not a "rule of court."
California’s Judicial Council has the power to "make
recommendations to the courts" and to "adopt rules for
court administration." Cal. Const. Art. VI, § 6. The
Introductory Statement to the California Rules of Court
States that the use of the term "should" indicates a
particular section is a nonbinding recommendation. Cal.
Rules of Court-State at 1 (1996). Section 20 consistently
uses the term "should" rather than "shall." Clearly,
therefore, section 20 is a recommendation, not a rule.
But, even if section 20 were a “rule of court," the
nonbinding nature of the competency standards does not
satisfy Chapter 154. It is clear that, in exchange for
restrictions imposed on federal habeas review, Congress
intended states to provide competent counsel. A state
does not qualify under Chapter 154 by setting forth
competency standards that the state can completely
Ata cal ae Ml a
19a
disregard when appointing counsel. Further, California
has presented no evidence indicating that the State
actually follows the relied-upon standards when appointing
counsel for condemned prisoners.“
The district court also determined that section 20 is
inadequate under Chapter 154 because the section does
not require appointed counsel to have any familiarity with
habeas corpus litigation. We recognize that habeas corpus
law is complex and has many procedural pitfalls. We,
however, are reluctant to require appointed counsel to
have familiarity with or experience in habeas corpus law.
Many lawyers who could competently represent a
‘condemned prisoner would not qualify under such a
standard. We conclude a state’s competency standards
need not require previous experience in habeas corpus
litigation.
California also fails to comply with Chapter 154
because it does not provide compensation for counsel to
adequately investigate and present collateral claims. The
California Supreme Court limits compensation to
collateral claims that are discoverable by reference to the
four corners of the appellate record. Clark, 21
Cal.Rptr.2d 509, 855 P.2d at 751-52, 751 n. 19. This is not
sufficient to comply with Chapter 154. Although states
need not compensate counsel for a fishing expedition,
competent counsel must be permitted some latitude in
investigating claims that are not revealed by the record.
It must be kept in mind that if a claim is not presented in
an initial federal habeas petition, the petitioner runs the
risk of waiving the claim even if it is meritorious. See
4. We do not mean to imply that California actually must adopt
the standards set forth in section 20. California simply must set forth
adequate, mandatory standards in a rule of its court of last resort or
by statute. 28 U.S.C. § 2265(a).
20a
Brown v. Vasquez, 952 F.2d 1164, 1166-67 (9th Cir.), cert.
denied, 503 U.S. 1011, 112 S.Ct. 1778, 118 L.Ed.2d 435
(1992). Meritorious habeas claims may exist outside of
the record. Indeed, ineffective assistance of counsel
claims typically fall within this category.
Finally, the district court correctly determined that
California’s failure to actually appoint counsel after an
indigent prisoner has said he or she will accept counsel
precludes California from qualifying under Chapter 154.
Chapter 154 requires a state to enter an order appointing
counsel "upon a finding that the prisoner is indigent and
accepted the offer [of counsel] or is unable competently
to decide whether to accept or reject the offer... ." 28
U.S.C. § 2261(c)(1), 2265(b). The plaintiff class presented
evidence that counsel often is not appointed until years
after a prisoner accepts the offer of counsel. California
may not take advantage of the six-month limitations
period when it takes years to appoint counsel.
[16] In sum, we hold that California does not qualify
at this time for the benefits of Chapter 154. This holding
does not preclude California from adopting policies to
qualify under Chapter 154. We conclude only that, to
take advantage of the benefits under Chapter 154,
California must fulfill its part of the bargain by timely
appointing and compensating competent counsel to assist
a condemned prisoner in his or her unitary review
proceedings.
[17] Nor did the district court err in determining that
an injunction was necessary to effectuate its declaratory
judgment. Had the district court not issued the injunction,
California would have been free to assert in other federal
and state proceedings the same position it asserts in this
case.
2la
[18] We clarify the injunction, however, to provide
that California is enjoined from asserting in any state or
federal court that it qualifies for the benefits of Chapter
154 under the current state of California law in cases
involving habeas corpus claims of state prisoners under
sentence of death. Moreover, the district court may
determine, depending upon future events, to modify its
injunction as may be appropriate.
E. First Amendment
California also contends the injunction violates the
First Amendment. We disagree. The injunction does not
interfere with the state officials’ free speech rights. They
are free to voice their opinion that the district court, and
we, are wrong. The officials, however, may not seek to
invoke the opt-in benefits of Chapter 154 in litigation
arising under the current state of California law in cases
similar to the present case after the district court and this
court have determined that the State has not complied
with Chapter 154’s opt-in requirements.
F. Attorney Fees
The plaintiff class requests attorney fees on appeal,
asserting they are "prevailing parties" under 42 U.S.C. §
1988. To be eligible for an award under section 1988, a
party "must prevail on at least some aspect of the merits
of his civil rights claim." Scofield v. City of Hillsborough,
862 F.2d 759, 766 (9th Cir.1988); see also Jensen v. City of
San Jose, 806 F.2d 899, 900-01 (9th Cir. 1986). In this
appeal we do not address any aspect of the class’s section
1983 civil rights claim. Accordingly, we decline to award
any attorney fees.
22a
CONCLUSION
The district court, in a thorough and well-reasoned
opinion issued under severe time constraints, correctly
determined that California does not presently qualify
under Chapter 154, and properly issued its declaratory
judgment. We affirm the district court’s preliminary
injunction, as clarified by this opinion. The district court
retains the power to modify the injunction depending
upon future events.
AFFIRMED.
BEEZER, Circuit Judge, dissenting:
Among the defenses pleaded in the district court by
Calderon, as warden, and his co-defendants is the "seventh
defense," which asserts: "Defendants allege that the relief
sought in the complaint is barred by the Eleventh
Amendment to the United States Constitution."
No court is free to address the merits of a cause until
it is satisfied that it has jurisdiction over the subject matter
of the case and the parties to the litigation. The district
court here claimed jurisdiction pursuant to 28 U.S.C. §
1331 (action arising under the Constitution, laws or
treaties of the United States) and under 28 U.S.C. §
1343(a)(3) (action under 42 U.S.C. § 1983). The district
court did not claim to exercise habeas corpus jurisdiction
under 28 U.S.C. § 2254.
In lengthy findings of fact, conclusions of law and
order filed June 14, 1996, the district court does not
address the defendants’ seventh defense. I will.
The complaint alleges that this action is brought
against defendants in their official capacity. Be the action
23a
against a prison warden, the Director of the Department
of Corrections or the Attorney General of California,
these officers act in their official capacity and in
furtherance of sovereign powers of the State of California.
Each official claims Eleventh Amendment immurity.
The court’s opinion filed today (Discussion, part C)
tells us that the immunity defense will not lie because the
prisoners’ class action claims fall within the Ex Parte
Young exception. The exception, we are told, arises from
the fact that the prisoners have identified "a continuing or
impending violation of federal law."
The Fourth Circuit in Booth v. State of Maryland, 112
F.3d 139 (4th Cir. 1997), considered a prisoner complaint
which made claims that the prisoners mimic here. I am
persuaded by the opinion in Booth that the prisoners here
have wholly failed to defeat California’s immunity defense.
After engaging in an exacting analysis, the Booth court
concluded:
In sum, this action fails to satisfy the
requirements of Ex Parte Young. Neither the
invocation of a chapter 154 defense, nor the
announced intention to assert such a defense,
nor the failure to comply with chapter 154
constitutes a continuing violation of federal law.
Under these circumstances, we find no
authorization in Ex Parte Young for abrogating
Maryland’s Eleventh Amendment immunity.
Since injunctive relief is not available in this case
under Ex Parte Young, declaratory relief is not
available either. Green, 474 U.S. at 74. Id. at
144.
I would direct the district court to quash its
preliminary injunction, vacate its order of June 14, 1996
24a
and dismiss the plaintiffs’ complaint. This would grant the
state officials the Eleventh Amendment immunity to which
they are entitled. I would avoid the inter-circuit conflict
of decision in a matter of national concern that is created
by the rejection of the Booth holding in our court’s
opinion filed today.
25a
FILED
JUNE 14, 1996
RICHARD WEIKING
CLERK
U.S. DISTRICT COURT
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF
CALIFORNIA
TROY A. ASHMUS, et al., )
No. C 96-1533 TEH
)
)
)
)
)
)
)
Defendants. )
Antiterrorism and Effective Death Penalty Act of 1996
("Act"), Pub.L. 104-132, 110 Stat. 1214, to the State of
26a
cannot, apply to petitions brought under 28 U.S.C. § 2254
by prisoners challenging California judgments of death.
On May 24, 1996, the Court. issued a short order
granting plaintiffs’ request for provisional class
certification, declaratory relief, preliminary injunctive
relief, and to proceed in forma pauperis. The Court also
granted defendants’ request for a temporary stay of the
preliminary injunction and denied defendants’ expedited
motion to dismiss. In accordance with Fed.R.Civ.P. 65
and the dictates of Fed.R.Civ.P. 52(a), this memorandum
opinion and order sets forth the findings of fact and
conclusions of law that constitute the grounds for the
Court’s May 24 order.
Good cause appearing, and for the reasons discussed
below, the Court also hereby GRANTS defendants’
request for a partial five (5S) day stay of this order, and
MODIFIES its provisional certification of the class to
exclude the approximately 50 death row inmates in
California whose sentences were affirmed on direct appeal
prior to June 6, 1989.
FINDINGS OF FACT
1. The Parties
Plaintiff Ashmus is a prisoner who has been
sentenced to death by the State of California. The
California Supreme Court affirmed his conviction and
sentence on December 5, 1991. People v. Ashmus, 54
Cal.3d 932, 2 Cal.Rptr.2d 112, 820 P.2d 214 (1991),
rehearing denied, Jan. 29, 1992, cert. denied, 506 U.S. 841,
113 S.Ct. 124, 121 L.Ed.2d 79 (1992). On February 17,
1993, plaintiff instituted federal habeas
challenging his conviction and death sentence by filing an
Application for Appointment of Counsel and a Request
27a
for Stay of Execution in Ashmus v. Calderon, No. 93-0594-
TEH (N.D.Cal.). See Special Requirements for Capital
Habeas Corpus Petitions, Local Rule 296-8(b)
(condemned prisoner’s pro se application for appointment
of counsel and for temporary stay of execution "shall be
deemed to be a petition for writ of habeas corpus with
leave having been granted to amend the petition upon
appointment of counsel"); see also McFarland v. Scott, 512
US. 849, Ss ~US. __, 114 S.Ct. 2568, 2572-73, 129
L.Ed.2d 666 (1994) (concluding that a “post-conviction
ing’ within the ineaning of [21 US.C] §
848(q)(4)(B) is commenced by the filing of a death row
defendant’s motion requesting appointment of counsel for
his federal habeas corpus proceeding").
Plaintiff, whose current counsel was appointed in
August 1995, had anticipated filing his "finalized petition"
for writ of habeas corpus by August 2, 1996.” Magistrate
Judge Joan Brennan recently vacated this "presumptive"
filing date, however, and no date is currently set for the
filing of his petition. Ashmus v. Calderon, No. 93-0594-
TEH (JB) (N.D.Cal. May 24, 1996).
As of April 1, 1996, each of the 438 other members
of the proposed plaintiff class had also been convicted and
sentenced to death by the State of California, and was
awaiting execution. More than a quarter of the proposed
class members are without counsel and likely to remain so
for some time. By defendants’ own admission, "Every
inmate who is awaiting appointment of counsel has been
‘offered’ counsel and that offer has been accepted; what
is pending is the appointment itself." Defs.’ 1st Opp’n
Mem. at 16 (emphasis in original); see also Pls.’ Ex. 5 at
2. “Finalized petition’ {] refer{s] to the petition filed by retained
or appointed counsel." Local Rule 296-5.
28a
Al, Mack Reed, An Even Longer Wait on Death Row, L.A.
Times, April 3, 1996, at Al, A14 (noting that 128 men and
six women on death row are waiting for counsel).
Approximately 145 of the proposed class members
currently have pending federal habeas proceedings. On
average, two to three individuals are added to the
proposed class each month.
The four defendants are Arthur Calderon, Warden of
San Quentin Prison and the custodian of all male persons
sentenced to death and housed at that facility; Teena
Farmon, Warden of the Central California Women’s
Facility, and custodian of all female persons sentenced to
death and housed at that facility; James Gomez, Director
of the California Department of Corrections; and Daniel
Lungren, California Attorney General. Plaintiffs have
sued each defendant in his or her official capacity and
have alleged that each defendant acts under color of law.
2. The Statute
On April 24, 1996, President Clinton signed into law
the Antiterrorism and Effective Death Penalty Act of
1996, Pub.L. 104-132, 110 Stat. 1214. Title I of the Act,
entitled “Habeas Corpus Reform," modifies existing
habeas corpus procedures contained in Chapter 153 of the
Judicial Code (Title 28), and enacts a new Chapter 154,
adding §§ 2261-2266 to Title 28.¥ [FN3] Chapter 154
offers a system of expedited review and other "benefits"!
3. Unless otherwise indicated, all further statutory references are
to Title 28.
4. The benefits to opt-in states include a six-month statute of
limitations on the filing of federal habeas corpus petitions, limitations
On amendments to petitions and their factual development, and
limitations on federal courts’ power to _— review the merits of
constitutional claims and order appropriate relief. 28 U.S. §§
29a
to states that qualify under either of two so-called "opt in"
procedures: (1) the "post- conviction" procedure provided
for in § 2261 or (2) the “unitary review" procedure
provided for in § 2265.
The Act, which largely codified a 1989 proposal by
the Ad Hoc Committee on Federal Habeas Corpus in
Capital Cases,” essentially establishes a "quid pro quo
arrangement under which states are accorded stronger
finality rules on federal habeas review in return for
strengthening the right to counsel for indigent capital
defendants." House Report at 10 (emphasis added). The
Act thus seeks to create an incentive for states to provide
competent counsel throughout state collateral review,
recognizing that such counsel is "crucial to ensuring
fairness and protecting the constitutional rights of capital
litigants." Powell Committee Report at 3240; see also
House Report at 8; 137 Cong.Rec. at $3220 & $3222
(March 13, 1991) (Section-by-Section Analysis of the
Comprehensive Violent Crime Control Act of 1991)
2263-2264. Moreover, for qualifying states, capital habeas matters
must be reviewed under strict, statutorily prescribed time limits, and
must be “given priority by the district court and by the court of
appeals over all noncapital matters." § 2266(a).
5. Ad Hoc Committee on Federal Habeas Corpus in Capital
Cases, Report on Habeas Corpus in Capital Cases, 45 Crim.L.Rep.
(BNA) 3239 (Sept. 27, 1989) ("Powell Committee Report"); see also
House Comm. on the Judiciary, Effective Death Penalty Act of 1995,
H.R.Rep. No. 23, 104th Cong., Ist Sess., at 16 (“House Report")
("Proposed 28 U.S.C. 2256 [codified as § 2261] sets out the basic
conditions for states to ‘opt in’ to the Powell Committee procedures,
by extending appointment of counsel for indigent capital defendants
to state collateral proceedings."). Although the House issued this
report in connection with the proposed 1995 Act, the relevant
portions of the proposed 1995 Act are identical to the legislation
Signed into law.
30a
{hereinafter "1991 Analysis"}.” In exchange for
adequately providing such competent counsel, Congress
offered states a potentially available mechanism for
ensuring expedited and final review of federal habeas
corpus petitions. 1991 Analysis, 137 Cong.Rec. at $3220
& $3222; House Report at 8 & 10; Powell Committee
Report at 3239. ;
3. The Harm Caused by Defendants’ Conduct
In public statements both prior to and since
enactment of Title I, throughout this litigation, and in
other cases pending before federal courts in California,
defendants and their agents have consistently and
vigorously maintained that California qualifies for Chapter
154’s benefits under § 2265’s unitary review procedure.
Defendants claim that California satisfies § 2265 by virtue
of a “comprehensive scheme of interlocking, cross-
implementive provisions." The qualifying mechanism,
defendants claim, became effective on June 6, 1989, and
consists primarily of the following: (1) Cal.Gov’t Code §
68511.5 (effective Jan. 1, 1984), (2) Rule 39.5 of the
"Rules of Practice and Procedure Adopted by the Judicial
Council and the Supreme Court" ("Rules of Court")
(effective Jan. 1, 1983), (3) Rule of Court 76.5 (effective
Jan. 1, 1985), (4) Section 20 of the Standards of Judicial
Administration Recommended by the Judicial Council
(effective Jan. 1, 1985), (5) the California Supreme Court
Statement of Internal Operating Practices and Procedures
("IOPP") (Adopted Summer 1985, Revised December
1989, and in 1995), (6) the California Supreme Court
Statement of Policies Regarding Cases Arising From
Judgements of Death (the "June 6, 1989 Policies")
6. The relevant provisions of the 1991 Act are also identical to
the legislation signed into law.
3la
(adopted June 6, 1989), and (7) Jn re Clark, 5 Cal.4th 750,
21 Cal.Rptr.2d 509, 855 P.2d 729 (1993). Accordingly,
defendants have threatened to invoke chapter 154 in all
federal court proceedings involving members of the
proposed class. |
Absent judicial relief from this Court, defendants
threats to invoke Chapter 154’s expedited review
provisions will effectively cause plaintiffs to forfeit rights
to which they are entitled under Chapter 153. As the
Court has previously noted,
Without a judicial determination of the rights
and responsibilities of the parties to this action,
prisoners under sentence of death by the State
of California must necessarily guess as to
whether and how Chapter 154 may constrain
their ability to seek redress in the federal courts
for deprivations of their constitutional rights.
The absence of a clear and uniformly applicable
determination that the State of California has or
has not complied with the provisions of Chapter
154 forces all condemned prisoners to choose
between the risk of unknowingly relinquishing
their entitlement to federal habeas corpus
procedures under Chapter 153, or the risk of
unknowingly forfeiting any enforcement of their
federal constitutional rights.
1.
California’s eligibility to proceed under Chapter
154 literally may have life or death consequences
for plaintiff and members of the proposed class
Ashmus v. Calderon, No. C96-1533 TEH at 4-5 (N.D.Cal.
May 24, 1996).
32a
Plaintiffs will be forced to forfeit their rights under
Chapter 153 as a direct result of the uncertainty over
Chapter 154’s applicability created by defendants’
assertions. Defendants’ statements during the course of
this litigation leave little room for doubt that, absent
judicial relief, they will continue to make such threats and
assertions.
As a practical matter, defendants’ assertions would
thus secure for the State the benefits of the Act,
regardless of whether California actually provides the
competent counsel that states are required by Congress to
give plaintiffs as a quid pro quo for receiving such
benefits. For these reasons, defendants’ threats effectively
deprive plaintiffs of their rights under chapter 153, and,
arguably, under the Due Process Clause as well.”
As the Supreme Court recently observed, erroneously
denying a state prisoner use of a first "federal habeas
petition is a particularly serious matter, for that dismissal
denies the petitioner the protections of the Great Writ
entirely, risking injury to an important interest in human
7. Defendants’ make the unrealistic and infeasible suggestion that
plaintiffs can readily avoid any harm by acting as if Chapter 154 does
apply in California, and then, if a Court subsequently determines that
Chapter 154 does not apply, withdrawing any hastily filed petition and
refiling it at a later date. Under such a scenario, plaintiffs’ counsel
will have to file and then refile piecemeal claims. Counsel will have
to start and stop investigation and funding. Counsel will have no idea
what time constraints exist with respect to discovery or how to plan
a coherent investigation. Counsel will have no idea, in seeking
discovery and fashioning an investigation plan, what rules and
standards apply to the evidentiary hearing or on what bases relief may
be granted. In the Court’s view and experience, it is wholly
unrealistic and, indeed, unworkable, for counsel to proceed effectively
in such a fashion.
33a
liberty." Lonchar v. Thomas, ___ US. Vite 116
S.Ct. 1293, 1299, (1996) (reversing the Eleventh Circuit s
order vacating the lower court’s stay of a state execution).
Effectively forcing state prisoners to file hasty habeas
corpus petitions, without providing the quid pro quo
benefits of competent counsel, similarly risks injury to this
important interest in human liberty.
To be sure, as the Lonchar Court recognized,
Congress has the power to establish statutes of limitation
on habeas filings. Jd. at 1301. By enacting Chapter 154,
Congress has exercised that power to make a six month
limitation potentially applicable to states. Presumably,
Congress could have made Chapter 154 applicable to all
states, regardless of their provision of competent counsel
to state prisoners for state collateral review. However,
Congress has not done so, and it has entrusted to the
federal judiciary the responsibility and obligation: for
determining whether Chapter 154 applies to a given
state.®
8. See, e.g., Powell Committee Report at 3242 ("[I]t is more
consistent with the federal-state balance to give the States wide
latitude to establish a mechanism that complies ... The final
judgments as to the adequacy of any system for the appointment of
counsel [], however, rests ultimately with the see cornet *"
he of the system--as opposed to com y «
erway nom doraioen be settled through litigation.") (emphasis in
original); 1991 Analysis, 137 Cong.Rec. at $3220 ("The latitude
afforded to the states in defining specific standards of counsel
competence is also desirable ... [However], /a/t a minimum, the
immediate benefits to defendants would include the requirement that
states electing these procedures actually appoint counsel for the
collateral proceedings, and these states focus on an [sic] articulate
standards of competence for such appointments.") (emphasis added),
id. at 3222 (pointing out that proposed § 2261, codified in the 1996
Act as § 2265, “would extend the chapter to states with adequate
unitary review procedures") (emphasis added).
34a
Defendants suggest that now that Congress has
enacted such potentially applicable limitations, the Court
would inappropriately impose hardship on California were
it to exercise its equitable powers to enjoin California
from receiving the benefits of the Act. However, the
Supreme Court’s cautioning against judicial action which
"lightly" imposes a statute of limitation in the absence of
congressional action, Lonchar, 116 S.Ct. at 1301, counsels
equally against this Court allowing defendants to
effectively impose a potentially applicable statute of
limitation where it concludes that California does not
qualify for such an application.
As the Supreme Court emphasized, "given the
importance of a first federal habeas petition, it is
particularly important that any rule that would deprive
inmates of all access to the writ should be both clear and
fair." Jd. at 1302. The same is true of California’s
allegedly comprehensive scheme, and of this Court’s
review of that scheme. As discussed below, however,
California’s scheme falls far short of this standard.
Indeed, as the Ninth Circuit recently emphasized, the June
6, 1989 Policies that defendants contend constitute the
core of the alleged scheme are "difficult to articulate,"
have been “applied only randomly," and were, at least
until Jn re Clark, 855 P.2d 729 (1993), neither clear, nor
well-established. Morales v. Calderon, 85 F.3d 1387, 1393
(1996) ("express[ing) no opinion as to whether the
California Supreme Court has sufficiently narrowed the
timeliness standards or applied them consistently since
Clark").
Whether, as plaintiffs assert, defendants’ effective
deprivation of their rights under Chapter 153 constitutes
"deprivation" within the meaning of 42 U.S.C. § 1983
raises difficult legal questions. However, as a factual
matter, the Court finds that defendants’ threats have
35a
caused plaintiffs to forgo their statutory rights and that,
absent relief from this Court, defendants’ threats will
continue to cause such injury.
doubts as to whether defendants’ assertions are
causing plaintiffs to forego their rights under Chapter 153
are readily relieved by consideration of what plaintiffs’
position in this regard would be if defendants had, instead,
stated that they planned to establish a unitary review
ure that would allow them in the future to invoke
Chapter 154’s benefits. In such a situation, plaintiffs
would not face the unconscionable dilemma discussed
above, and would continue to exercise their statutory and
constitutional rights. While Defendants certainly have a
fundamental First Amendment right to express their views
in this regard, the Court concludes that the manner in
which they have done so has put plaintiffs in a very
different position with respect to their habeas corpus
rights than they would be if defendants had not done so.*
4. Procedural Background
In the thirty days following plaintiffs’ filing of this
action on April 24, 1996, the Court held three hearings
and received six rounds of briefing on the matter. On
May 2, at the close of the show cause hearing on
plaintiff's application for a "Temporary Restraining Order,
Temporary Declaratory Relief, and Preliminary Injunctive
Relief," the Court granted plaintiffs’ application for a
9. Thus, for instance, it is clear that plaintiffs’ rights have not
been harmed by recent statements of elected officials regarding
California’s present efforts to reform its mechanism for providing
competent counsel to capital defendants pursuing collateral review,
even though the State presumably hopes to opt-in to Chapter 154 via
these reforms. See Mike Lewis, Capital Appeals Overhaul Starts With
Money, Daily J., May 28, 1996, at 1.
36a
temporary restraining order ("TRO"). On May 13, at
the close of the hearing on plaintiff's application for a
preliminary injunction, the Court modified and extended
the TRO for an additional ten days. See Ashmus vy.
Calderon, No. C96-1533 TEH (N.D.Cal. May 15, 1996)
(Order Modifying and Extending TRO). And on May 24,
one day after the hearing on plaintiff's expedited motion
for provisional class certification, defendants’ expedited
motion to dismiss, and other matters raised in the parties’
supplemental briefs, the Court issued a brief order
addressing the outstanding issues presented by the parties.
In addition, on May 31, defendants filed an Ex Parte
Application for Partial 5-Day Stay of Final Order and
Judgment, for the sole purpose of facilitating defendants’
anticipated application to the Ninth Circuit for a stay
pending appeal. On June 3, Defendants filed an Ex Parte
Application for Partial Stay of Final Order and Judgment
Pending Appeal, asking the Court partially to stay its
order, in lieu of defendants’ seeking such a stay from the
Ninth Circuit. In the event that any of the i
Conclusions of Law are deemed to be Findings of Fact,
they are incorporated by reference as Findings of Fact.
CONCLUSIONS OF LAW
In the event that any of the foregoing Findings of
Fact are deemed to be Conclusions of Law, they are
incorporated by reference as Conclusions of Law.
10. In the week following this Court's issuance of the TRO,
defendants sought emergency stays from both the Ninth Circuit and
the United State Supreme Court, and applied for an emergency writ
of mandamus to the Ninth Circuit. Each of these requests was
summarily denied.
37a
I], PRELIMINARY ISSUES
Defendants have raised a number of threshold
questions concerning the Court’s power to hear this case,
including challenges to plaintiffs’ standing, the ripeness of
their claims, and the existence of a cognizable cause of
action. As the Supreme Court has explained, these issues
are related to, but analytically distinct from the threshold
question of jurisdiction.
Thus it may be said that jurisdiction is a question
of whether a federal court has the power, under
the Constitution or laws of the United States, to
hear a case, see Mansfield, C. & L.M.R. Co. v.
Swan, 111 U.S. 379, 384, 4 S.Ct. 510, 512, 28
L.Ed. 462 (1884); Montana-Dakota Utilities Co.
v. Northwestern Public Serv. Co., 341 U.S. 246,
249, 71 S.Ct. 692, 694, 95 L.Ed. 912 (1951);
standing is a question of whether a plaintiff is
sufficiently adversary to a defendant to create an
Art. III case or controversy, or at least to
overcome prudential limitations on federal-court
jurisdiction, see Warth v. Seldin, 422 US. 490,
498, 95 S.Ct. 2197, 2204, 45 L.Ed.2d 343 (1975);
cause of action is a question of whether a
particular plaintiff is a member of the class of
litigants that may, as a matter of law,
appropriately invoke the power of the court; and
relief is a question of the various remedies a
federal court may make available.
Davis v. Passman, 442 U.S. 228, 239 n. 18, 99 S.Ct. 2264,
2274, 60 L.Ed.2d 846 (1979) (emphasis in original).
—_—_——_— ee ro
A. Jurisdicti
The Court has jurisdiction over this matter pursuant
to 28 U.S.C. § 1331. Section 1331 confers jurisdiction
upon the Court over “all civil actions arising under the
Constitution, laws, or treaties of the United States." A
lawsuit “arises under" federal law if (1) federal law creates
the cause of action, or (2) "the resolution of the dispute
depends upon the validity, construction, or effect of
federal law, so long as the federal question is a real and
substantial issue." City Nat. Bank v. Edmisten, 681 F.2d
942, 945 (4th Cir.1982). Plaintiffs seek a declaratory
judgment that Chapter 153, rather than the expedited
provisions of Chapter 154, governs federal review of his
state court conviction and death sentence. Thus, they
have alleged facts sufficient to confer jurisdiction under
either prong of this test: The Declaratory Judgment Act
creates their cause of action, see Samuels v. Mackell, 401
US. 66, 70, 91 S.Ct. 764, 766, 27 L.Ed.2d 688 (1971)
(declaratory judgment is "essentially an equitable cause of
action"), and the dispute depends upon the construction
and effect of the 1996 Act.
The Court also has jurisdiction pursuant to 28 U.S.C.
§ 1343(a)(3), because, as discussed below, plaintiffs have
rat alleged a cause of action under 42 U.S.C. §
B. Standing
Article III requires a plaintiff to be sufficiently
adversary to a defendant to create an actual case or
controversy. A plaintiff must show that he has personally
suffered some actual or threatened injury as a result of
the conduct challenged in the lawsuit, that the injury can
be fairly traced to the challenged actions, and that the
injury is likely to be redressed by a favorable decision.
39a
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112
S.Ct. 2130, 2136-37, 119 L.Ed.2d 351 (1992).
Plaintiff Ashmus and each member of the plaintiff
class satisfy these requirements. As noted above, plaintiffs
are suffering “actual” injury because defendants have
asserted, and, absent judicial relief, will continue to assert
falsely that Chapter 154 governs plaintiffs’ ability to file
and pursue federal habeas proceedings. Because of the
uncertainty created by defendants’ assertions, plaintiff
Ashmus will be forced to comply with Chapter 154 and to
structure his habeas litigation accordingly. Other
members of the plaintiff class will be similarly affected.
The fact that the provisions of Chapter 154 could not
directly apply to plaintiff until his "finalized" petition is
filed at some point in the future is no more of a bar to
standing than it is to ripeness. See, eg., New York v.
United States, 505 U.S. 144, 175, 112 S.Ct. 2408, 2428, 120
L.Ed.2d 120 (1992) (rejecting ripeness objections to New
York’s challenge of a statutory provision that, three and
one-half years in the future, would require it to take title
to low-level radioactive waste on the grounds that "New
York must take action now in order to avoid the take title
provision’s consequences"). Thus, plaintiffs are suffering
“actual” injury, and that injury can be fairly traced to
defendants actions. Accordingly, plaintiffs satisfy Article
III’s case or controversy requirement.”
Defendants challenge to plaintiffs’ standing focuses
almost entirely on the fact that the six-month statute of
limitations created by Chapter 154, see 28 U.S.C. §
2263(a), which defendants believe "began running on April
24, 1996, as to plaintiff and all other death row inmates
11. Defendants do not dispute that plaintiffs satisfy the
redressability prong of standing.
40a
whose judgments were affirmed on or after June 6,
1989,"" expires after August 2, 1996, the presumptive
filing deadline for plaintiff Ashmus at the time that he
filed the instant action. However, defendants ignore
the fact that plaintiff Ashmus must be afforded the right
to understand the consequences of filing such a petition.
Plaintiff must know, prior to drafting the finalized petition,
whether 28 U.S.C. § 2264’s limitations on federal courts’
substantive review of habeas petitions ultimately will
apply to the Court’s review of his constitutional claims.
He must also know whether to file a petition, as ordered
by this Court, that contains exhausted and unexhausted
claims. Finally, plaintiff must know whether § 2266’s rigid
time limitations for adjudication of his petition apply.
C. Ripeness
The basic purpose of the ripeness doctrine "is to
prevent the courts, through avoidance of premature
adjudication, from entangling themselves in abstract
disagreements . . .". Abbott Laboratories v. Gardner, 387
US. 136, 148, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681 (1967),
overruled on other grounds, Califano v. Sanders, 430 U.S.
99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). To achieve this
purpose, the doctrine sets forth a "twofold" analy’’s,
requiring the Court to balance “both the fitness of the
issues for judicial decision and the hardship to the parties
of withholding court consideration." Jd. at 149, 87 S.Ct. at
1515. Both parts of this balancing test strongly favor the
Court’s resolution of the present dispute.
12. Defs.’ Supp.Briefing at 7 n. 5.
13. Although this filing deadline has since been vacated, plaintiff
cannot rely on this fact to establish thathe had _— standing when he
filed this action.
4la
The first part of the test examines the extent to which
the issues are sharp'y focussed. Where, as here, the issue
for analysis is, as defendants’ acknowledge, “a virtually
pure question of law," the issues are generally considered
to be sufficiently focussed. Id.; see also Thomas v. Union
Carbide Agr. Prods. Co., 473 U.S. 568, 581, 105 S.Ct. 3325,
3333, 87 L.Ed.2d 409 (1985); Babbitt v. United Farm
Workers National Union, 442 U.S. 289, 300-01, 99 S.Ct.
2301, 2309-10, 60 L.Ed.2d 895 (1979) (noting that in such
cases, postponement serves no purpose); id. at 303-04, 99
S.Ct. at 2311-12 (noting that, by contrast, postponement is
appropriate where precise factual circumstances will affect
constitutional analysis). That some of the plaintiffs may
be able to exercise control over some of the harm alleged
(e.g., by filing petitions prior to the deadline) does not
alter this conclusion. /d. at 303-05, 99 S.Ct. at 2311-12;
Clements v. Fashing, 457 U.S. 957, 961-62, 102 S.Ct. 2836,
2842-43, 73 L.Ed.2d 508 (1982).
Plaintiffs similarly satisfy the second prong of the
ripeness test, the hardship factor. "The most important
aspect of the hardship determination is a clear recognition
that a decision of legal relationships often should be
available before irrevocable commitments are made." 13A
Charles Alan Wright, Arthur R. Miller, and Edward H.
Cooper, Federal Practice and Procedure § 3532.4, at 167
(2d ed. 1984). As noted above, plaintiffs have
convincingly demonstrated to the Court that, absent
judicial relief, they will need to make such commitments
with regard to their litigation resources and strategies.
The impact of defendants’ conduct on plaintiffs is thus
"sufficiently direct and immediate to render the issue
appropriate for judicial review at this stage." Abbott, 387
USS. at 152, 87 S.Ct. at 1517.
Defendants’ ripeness challenge rests primarily on
their statute of limitations argument, rejected above, and
42a
on their belief that, regardless of Chapter 154’s
applicability, the Act’s revised standards of review will
apply to plaintiff Ashmus based on the Act’s amendments
to Chapter 153. See Act, Pub.L. 104-132, § 104(3)-(4),
110 Stat. 1219 (revising 28 U.S.C. § 2254(d)-(e)).
naa persuasively contest the latter point and request
that,
to ensure that an appellate court does not
misunderstand this Court’s view of the "standing"
and "ripeness" issues raised by defendants and
the scope of the relief requested, this Court
should declare that the amendments to Chapter
153 do not apply to plaintiff Ashmus and the
approximately 144 other California death row
inmates who invoked federal habeas jurisdiction
prior to April 24, 1996.
Pls.’ Reply to Class Cert. at 3 n. 2.
For the reasons set forth in plaintiffs’ First Reply, and
in the thorough retroactivity analysis in Wilkins v.
Bowersox, 933 F.Supp. 1496, 1502-1506 (W.D.Mo.,
1996),“ the Court agrees that the relevant provisions of
14. See aiso, e.g., Williams v. Calderon, 83 F.3d 281, 286 & n. 2
(9th Cir.1996) (noting that "the Act does not provide an effective date
for the general habeas provisions [i.e., Chapter 153]" and assuming,
“without deciding, that section 2253(c)(2) of the Act does not apply
retroactively . . ."); Warner v. United States, 926 F.Supp. 1387, 1390
(E.D.Ark.1996) (holding that amendments to § 2255 do not apply
retroactively); United States v. Trevino, 1996 WL 252570 n. 1 (N.D.IIl.
May 10, 1996) (same); Centanni v. Washington, 1996 WL 251438 at *1
(N.D.IIl. May 8, 1996) (expressing doubt that amendments to Chapter
153 apply retroactively); Schiup v. Bowersox, No. 4:92CV443-JCH at
17 (E.D.Mo. May 2, 1996) (holding that Congress did not intend the
amendments to § 2254 to apply retroactively); But see Leavitt v.
Arave, 927 F.Supp. 394, 398 (D.Id.1996) (concluding that applying
43a
the Act, § 104, do not apply retroactively. Accordingly,
the Court holds that s 104’s amendments to 28 U.S.C. §
2254 do not render the present controversy unripe.
Nonetheless, the Court rejects plaintiffs’ suggestion
that it should therefore declare Chapter 153, either in
whole, or in part, inapplicable to plaintiffs. Plaintiffs’
complaint does not explicitly pray for such relief. In the
absence of such a prayer, the Court does not believe that
such relief is warranted.“
D. Cause of Action
"The concept of a ‘cause of action’ is employed
specifically to determine who may judicially enforce the
statutory rights or obligations." Davis v. Passman, 442
U.S. 228, 239, 99 S.Ct. 2264, 2274, 60 L.Ed.2d 846 (1979).
The key question is whether a particular plaintiff is a
amended versions of §§ 2244, 2253, and 2254 to pending cases would
not have retroactive effect); Bean v. Calderon, No. CIV S-90-0648
WBS/GGH at 7 (E.D.Cal. May 8, 1996) (applying amended § 2254 to
a pending case without discussing its retroactivity); Williams v.
Calderon, No. CV. F- 89-160-REC-P, at 5-7, 9, 16-17 (E.D.Cal. April
29, 1996) (holding, in the alternative, that certain provisions of
Chapter 153 apply retroactively), affirmed on other grounds, Williams
v. Calderon, 83 F.3d 281 (9th Cir.1996).
15. Concededly, plaintiffs’ complaint and moving papers manifest
their assumption that Chapter 153 would not apply retroactively.
Defendants’ ripeness challenge similarly manifests defendants’
assumption that Chapter 153 did apply retroactively to pending cases.
Accordingly, to the extent that the retroactivity of Chapter 153
impacts the ripeness issue, the Court is obligated to resolve the issue
in determining the justiciability of the instant action. However, with
respect to Chapter 153’s retroactivity, plaintiffs have failed to explain
why the Court is similarly obligated to exercise its discretionary
jurisdiction to grant the declaratory relief they requested in
subsequent briefing.
44a
member of the class of litigants that may, as a matter of
law, appropriately invoke the power of the court. The
answer “depends not on the quality or extent *1062 of
[plaintiffs’] injury, but on whether the class of litigants of
which petitioner is a member may use the courts to
enforce the right at issue. The focus must therefore be on
the nature of the right petitioner asserts." Jd. at n. 18.
The Court concludes that plaintiffs fall within the
class of litigants whom Congress intended to confer rights
upon via the Declaratory Judgment Act. See Golden
State Transit v. City of Los Angeles, 493 U.S. 103, 119, 110
S.Ct. 444, 455-56, 107 L.Ed.2d 420 (1989) (Kennedy, J.,
dissenting); Samuels v. Mackell, 401 U.S. 66, 70, 91 S.Ct.
764, 766-67, 27 L.Ed.2d 688 (1971) (declaratory judgment
is “essentially an equitable cause of action"); Fed.R.Civ.P.
57, 1937 Advisory Committee Notes ("The existence or
nonexistence of any right . . . may be declared.").
Unquestionably, plaintiffs also fall within the class of
people whom Congress intended to confer rights upon
under the habeas corpus provisions of Chapters 153 and
154.
Whether plaintiffs also have stated a cause of action
cognizable under 42 U.S.C. § 1983 presents a more
difficult question. Plaintiffs contend that the existence of
a § 1983 cause of action in this case is controlled by a
straightforward application of Steffel v. Thompson, 415
US. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974). Steffel
and its progeny, see, e.g. Ohio Civil Rights Comm’n vy.
Dayton Christian Schools, 477 U.S. 619, 625 n. 1, 106 S.Ct.
2718, 2722 n. 1, 91 L.Ed.2d 512 (1986); Carey v.
Population Services Int’l., 431 U.S. 678, 683 n. 3, 97 S.Ct.
2010, 2015 n. 3, 52 L.Ed.2d 675 (1977); Doran v. Salem
Inn, Inc., 422 U.S. 922, 930-32, 95 S.Ct. 2561, 2567-68, 45
L.Ed.2d 648 (1975); Fordyce v. Seattle, 55 F.3d 436, 440
(9th Cir.1995), involved threatened prosecution or
45a
administrative action under a state or local law claimed by
plaintiff to be unconstitutional. In each case, the Court
held that the fact that state courts might, in the event of
prosecution, find the state law unconstitutional did not
prevent the threatened prosecution from qualifying as
state action creating a federal cause of action pursuant to
42 U.S.C. § 1983. Thus, it is clear that in appropriate
circumstances, the threats of state officials to assert an
unlawful legal position can give rise to a cause of action
under § 1983.
Focussing on the nature of the challenged state
action, defendants have pointed out several reasons why
these cases are potentially distinguishable from the instant
case. The Court recognizes that applying the principles
underlying Steffel to the instant case represents a novel
application. However, the Court believes that defendants
have misperceived the relevance of these cases to the
instant action. The relevant focus is not the nature of
46a
State action,™ but the nature of the harm that Steffel
and other courts have held to be cognizable under § 1983.
[T]he Supreme Court has mandated that Section
1983 be “broadly construed against all forms of
official violation of federally protected rights.”"
Dennis v. Higgins; 498 U.S. 439, 444, 111 S.Ct.
865, 869, 112 L.Ed.2d 969 (1991), quoting Monell
v. New York City Dept. of Social Services, 436
U.S. 658, 700-701, 98 S.Ct. 2018, 2040-41, 56
L.Ed.2d 611 (1978). Threatened harm that has
not yet occurred, but that will occur unless
judicial relief is afforded is enough to support a
16. Plaintiffs have adequately alleged the presence of state action,
as defendants, at one point at least, seemed to concede. See
Defendants’ 2d Opp.Mem. at 4 ("[Plaintiff] observes that state
Officials ‘act under color of state law when they litigate, a
proposition we do not dispute.") Defendants subsequently cited to
Rosas v. Brock, 826 F.2d 1004 (11th Cir.1987), for the proposition
that any relevant conduct of theirs in this case is action "under color
of federal law."
In Rosas, the State of Florida entered into a contractual
agreement with the federal government to administer the Disaster
Unemployment Assistance Progium. Pursuant to the federal
agreement, state employees reviewed unemployment applications,
applied federal regulations, and determined that Mr. Rosas was
ineligible for federal aid. Noting that "the challenged action by state
employees is nothing more than the application of federal rules," the
Eleventh Circuit concluded that "the federal involvement in those
cases is SO pervasive that the actions are taken under color of federal
and not state law." Jd. at 1007 (emphasis added). Here, however, the
involvement of the federal judiciary has been triggered by state
Officials’ independent assertions of the state’s eligibility under Chapter
154. As noted above, defendants’ conduct thus constitutes the heart
of the dispute. Accordingly, "the state cannot be characterized as a
purely passive actor so as to preclude Section 1983 liability.” Mitson
v. Coler, 670 F.Supp. 1568, 1576 (S.D.F1.1987); see also Martin vy.
Heckler, 773 F.2d 1145, 1154 (11th Cir.1985) (en banc).
47a
| civil rights claim. See, eg., Wright v. Roanoke
Redevelopment & Housing Authority, 479 U.S.
418, 431-32, 107 S.Ct. 766, 774-74, 93 L.Ed.2d
781 (1987).
ted v. Gregoire, 841 F.Supp. 1068, 1083
(W.D.We.1994), aff'd, 75 F.3d 454 (9th Cir.1996).
Accordingly, the Court believes that the mere fact that
another actor--whether it’s the state court in the
threatened prosecution cases, or the federal court in the
instant case--may limit the harm caused by defendants
conduct does not defeat a cause of action under 42 U.S.C.
§ 1983.
In Steffel, the uncertainty caused by state officials’
threats to prosecute plaintiff under an allegedly
unconstitutional statute caused plaintiff to forego his First
Amendment rights to free speech. In Thorsted, the
uncertainty created by state officials’ threats to enforce an
allegedly unconstitutional term limits measure caused
plaintiffs to forego rights secured by the First and
Fourteenth Amendments, as well as the Qualifications
Clause. In the instant case, the uncertainty created by
defendants’ threats is causing plaintiffs to forego their
rights, under Chapter 153, not to be executed without a
federal court’s determination that their conviction and
sentence does not offend the U.S. Constitution. The
denial of these rights "is a particularly serious matter . . :
, risking injury to an important interest in human liberty.
Lonchar v. Thomas, __ USS. . , 116 S.Ct. 1293,
1299, 134 L.Ed.2d 440 (1996).
Defendants have appropriately cautioned the Court
that in extending well-established precedent to issues of
first impression, courts should be mindful of the need to
establish a principled basis on which to limit that
extension. This case readily provides such a limiting
48a
principle. As the Supreme Court has repeatedly
emphasized over the past two decades, see, e.g., Gardner
v. Florida, 430 U.S. 349, 357-58, 97 S.Ct. 1197, 1204-05, 51
L.Ed.2d 393 (1977), and as Congress’ enactment of
Chapter 154 vividly exemplifies, "death is [] different." Cy.
13A Wright, Miller, & Cooper, Federal Practice and
Procedure § 3532.5 at 185 (2d Ed.1984) (noting, in the
related context of ripeness, that courts’ "willingness to
protect against even prospective burdens of compliance is
enhanced if especially valuable interests seem to be at
stake"). Thus, while the cognizability of plaintiffs’ § 1983
cause of action is not entirely free from doubt, the Court
concludes that, in the context of this case, plaintiffs have
raised sufficiently serious questions to warrant the
preliminary injunctive relief requested.
Il, CLASS CERTIFICATION
On May 6, 1996, pursuant to Civil Local Rules 7-10
anc 23-2, plaintiffs moved on an expedited basis to have
their motion for provisional class certification heard on
May 13, together with the preliminary injunction hearing
already scheduled for that time. In response to
defendants’ vigorous objection that a May 13 hearing
would not allow sufficient time to undertake the "rigorous
analysis" required under Rule 23, see General Telephone of
Southwest v. Falcon, 457 U.S. 147, 161, 102 S.Ct. 2364,
2372, 72 L.Ed.2d 740 (1982), the Court set the class
certification hearing for ten days later, on May 23. The
Court notes however, that defendants’ brief analysis of the
requirements of Rule 23(a) and their failure even to
mention, in their brief, two of the bases proposed by
plaintiff to maintain this action under Rule 23(b), belies
their suggestion that anything less than the "normal" 35-
day briefing schedule provided for by this Court’s local
rules would prejudice their ability to address the merits of
49a
class certification“ See Defs.’ Opp’n to Exp.Mot. at
4-5.
Plaintiff seeks to certify a class consisting of all
prisoners who have been sentenced to death by the State
of California and are currently awaiting execution. To
qualify for class certification, plaintiff must first satisfy the
four prerequisites enumerated in Fed.R.Civ.P. 23(a): (1)
numerosity; (2) commonality; (3) typicality; and (4)
adequacy. In addition to these prerequisites, plaintiff
must satisfy one of the bases for maintaining a class action
listed in Rule 23(b).
Plaintiff bears the initial burden of demonstrating that
Rule 23’s requirements have been met. Arnold v. United
Artists Theatre Circuit, Inc., 158 F.R.D. 439, 448
(N.D.Cal.1994); see alsu, Blackie v. Barrack, 524 F.2d 891,
901 (9th Cir.1975) (noting that because class certification
inevitably involves some speculation, plaintiff need only
present “sufficient information [for the court] to form a
reasonable judgment"), cert. denied, 429 U.S. 816, 97 S.Ct.
57, 50 L.Ed.2d 75 (1976). The district court has broad
discretion in determining whether to certify a class,
17. Defendants’ opposition to class certification focussed largely
on the standing of named plaintiff Troy Ashmus to bring this suit,
and on the ripeness of his claim. Defendants are free to present any
arguments they deem appropriate, and standing and ripeness are, of
course, threshold concerns in every suit. The jurisdictional arguments
addressed in the first two-thirds of defendants’ opposition to class
certification, however, had already been addressed and explored in the
parties’ earlier oral and written arguments.
Defendants’ comments are also at odds with their efforts to get
this case to the appellate level as soon as possible and their
unwillingness, at the May 3 hearing, to stipulate to a period longer
than 10 days for the TRO.
50a
however, and its determination "should not be overturned
on review unless it is svn that the district court abused
its discretion." Specerum Financial Companies y.
Marconsult, Inc., 608 F.2d 377, 382 (9th Cir.1979), cert.
denied, 446 U.S. 936, 100 S.Ct. 2153, 64 L.Ed.2d 788
(1980). The Court concludes that plaintiff has met his
burden and that provisional certification is warranted in
this case.
A. Rule 23(a)
1. Numerosity
Plaintiffs seek to certify a class consisting of all
prisoners who have been sentenced to death by the State
of California. By its express terms, Chapter 154 applies,
in qualifying states, to all members of the class who
petition for habeas corpus in federal courts. 28 U.S.C. §
2261(a) ("This chapter shall apply to cases arising under
section 2254 brought by prisoners in State custody who are
subject to a capital sentence."). Plaintiffs assert that the
class contains approximately 439 persons, with
approximately two unknown members being added to the
class each month Defendants do not dispute
plaintiffs’ numerical estimates. Rather, they contend that
the appropriate class consists only of the approximately 52
death row inmates who, like plaintiff, have state death
judgments that became final after June 6, 1989, and who
have not yet filed federal habeas corpus petitions. Having
thus redefined the class, defendants claim that plaintiffs
fail to satisfy the numerosity requirement because death
row inmates in California are easily located, easily
identified, and "are engaged in litigation or will be." Defs.’
Opp’n to Class Cert. at 10-11.
18. Pls.’ Compl 1 20; Defs.’ lst Opp’n. at 7 n. 1.
Sla
Defendants correctly note that the current members
of the class are easily identified and easily located.
However, for several reasons, their claim that class
representation is thus ina iate lacks merit. First,
solely by virtue of the undisputed fact that two to three
“unnamed and unknown future" persons are being added
to the class each month, joinder in this case is "inherently
impracticable." Jordan v. Los Angeles County, 669 F.2d
1311, 1320 (9th Cir.), vacated on other grounds, 459 U.S.
810, 103 S.Ct. 35, 74 L.Ed.2d 48 (1982). Second, while
there is no exact numerical formula for determining
whether a class is sufficiently numerous, see, e.g., Garcia v.
Gloor, 618 F.2d 264, 267 (Sth Cir.1980), cert. denied, 449
U.S. 1113, 101 S.Ct. 923, 66 L.Ed.2d 842 (1981), the Ninth
Circuit has indicated that even by defendants’ own
estimate of 52 class members, the numerosity requirement
is satisfied here. Jordan, 669 F.2d at 1319 (reversing
district court’s denial of class certification and noting that
“we would be inclined to find the numerosity requirement
in the present case satisfied solely on the basis of the
number of ascertained class members, i.e., 39, 64, and 71")
(emphasis added). Third, given the undisputed fact that
more than a quarter of the proposed class members are
without counsel and likely to remain so for some time,”
the likelihood that these individuals will engage in
litigation against defendants at some point in the future
hardly renders their joinder in this action practicable.
Defendants’ efforts to redefine the class similarly lack
merit. With one exception, these efforts are based on
distinctions between class members that are irrelevant to
the requirements of Rule 23. First, as discussed below, all
members of the proposed class share common questions
of law and of fact. Second, defendants’ claim that the
19. Defs.’ ist Opp’n Mem. at 16; Pils.’ Ex. 5 at Al.
— a Ne
52a
proposed class members whose cases are currently
pending in state court have no cause of action and
therefore should not be included in the class runs directly
counter to Supreme Court precedent. Eisen v. Carlisle &
Jacquelin, 417 U.S. 156, 178, 94 S.Ct. 2140, 2153, 40
L.Ed.2d 732 (1974) ("In determining the propriety of a
class action, the question is not whether . . . the plaintiffs
have stated a cause of action or will prevail on the merits,
but rather whether the requirements of Rule 23 are met.")
(quoting Miller v. Mackey International, 452 F.2d 424, 427
(Sth Cir.1971)). In addition, defendants ignore the fact
that Chapter 154’s applicability will affect these
individuals’ decisions about how best to preserve federal
habeas review of constitutional claims, when and whether
to seek certiorari, and whether they are entitled to
"reasonable litigation expenses." Third, defendants’
suggestion that prisoners who have already filed federal
habeas petitions should be excluded from the class,
presumably because the filing deadline will not apply to
them, ignores the remaining provisions of Chapter 154
that Congress expressly made applicable to pending
capital habeas petitions. Death Penalty Act, Pub.L. No.
104-132, § 107(c), 110 Stat. 1214, 1226 (1996) (Chapter
154 "shall apply to cases pending on or after the date of
enactment of this Act.").
Defendants have raised one important distinction,
however, that the Court’s May 24 order did not sufficiently
take into account. During the course of this litigation,
defendants have conceded that California’s alleged
comprehensive scheme does not apply to death row
inmates whose judgments became final prior to June 6,
1989. Accordingly, defendants argued, these inmates will
“not be subjected to any ‘unlawful’ argument by state
officials about the application of federal law." Defs.’
Opp’n to Class Cert. at 10.
53a
Based on plaintiffs’ contentions that these concessions
contradicted some of the very assertions by defendants
that gave rise to this action, and on the Court’s own
concerns that defendants’ concessions might not be legally
enforceable in subsequent actions, the Court provisionally
included such persons in the certified class. Upon
reconsideration, however, the Court concludes that the
roughly 50 persons whose judgments were affirmed prior
to June 6, 1989, should not be included in the class.
Accordingly, and good cause appearing, the Court hereby
MODIFIES the provisionally certified class to exclude
such individuals.
2. Commonality
The existence of common questions of law alone, or
of fact alone, satisfies the commonality requirement.
Cottrell v. Virginia Elec. & Power Co., 62 F.R.D. 516, 519
(E.D.Va.1974). The requirement is met by the alleged
existence of a common practice by defendants; the
defendants’ actions need not affect each member of the
class in the same way. Amold, 158 F.R.D. at 448.
Whether Chapter 154 applies in California and whether
defendants’ assertions in this regard are harming death
row inmates in California are the central questions
presented by this case. Standing alone, these questions,
which plaintiffs have demonstrated are common to all
members of the class, satisfy the commonality
requirement. Nehmer v. U.S. Veterans’ Admin., 118
F.R.D. 113, 117 (N.D.Cal.1987) ("Courts have frequently
certified classes whose members share a common threat
of future harm.").
Plaintiffs’ complaint and brief list a litany of
additional factual and legal questions that are common to
members of the class. Pls.’ Compl. 17 21-22; Pls.’ Class
Cert. Mot. at 6 (e.g., whether California has a unitary
54a
review procedure; whether California has a statute or rule
providing for standards of competency for the
appointment of counsel in unitary review procedures;
whether defendants have threatened to assert that
Chapter 154 applies to all or some members of the class;
whether, if California has the appropriate mechanisms and
rules required by 28 U.S.C. § 2265, it has broadly failed to
comply with the specific requirements of those
mechanisms and rules; and whether California has
entered an order by court of record appointing counsel for
all indigent death row inmates who have accepted offers
of counsel).
Defendants have not specifically objected to the
commonality of any of these questions. Rather, they have
simply asserted that because "plaintiff has no existing case
or controversy with defendants on the issue of Chapter
154’s application[,] [h]e therefore presents no questions of
law and fact common to or typical of the proposed class."
Defs.’ Opp’n to Class Cert. at 12-13. As noted above, the
Court has concluded that plaintiff has standing. The
Court hereby finds that the questions of law and of fact
identified by plaintiffs are indeed common to all members
of the plaintiff class. Accordingly, the Court holds that
plaintiffs have satisfied the commonality requirement.
3. Typicality
The typicality requirement is satisfied if the "class
representative(s] ... possess the same interest and suffer
the same injury as the class members." East Texas Motor
Freight System, Inc. v. Rodriguez, 431 U.S. 395, 403, 97
S.Ct. 1891, 1896, 52 L.Ed.2d 453 (1977). Typicality does
not require that the named plaintiff's claims be identical
to those of the other class members. Moreover, a finding
of commonality will ordinarily support a finding of
typicality. Falcon, 457 U.S. at 157 n. 13, 102 S.Ct. at 2370
55a
n. 13. Aside from the jurisdictional arguments previously
rejected by the Court, defendants have failed to identify
any nanner in which the class representative’s claims or
defenses are atypical. The Court finds that the class
representative possesses the same interests and suffers the
same injury as other class members. Accordingly,
plaintiffs have satisfied the typicality requirement.
4. Adequacy
Two factors are considered in determining whether a
case satisfies the requirement of fair and adequate
representation. First the class representative’s interests
must be coextensive with and not antagonistic to the
interests of the remainder of the class. Second, plaintiff's
counsel must be fully competent to prosecute the action
as a class action. Jordan, 669 F.2d at 1322. "[T}he
attorney’s zeal, competence, and experience are factors
relevant to the District Court’s exercise of discretion" in
the appointment of counsel. Harriss v. Pan American
World Airways, Inc., 74 F.R.D. 24, 43 (N.D.Cal.1977).
Defendants do not appear to contest that plaintiffs
have satisfied this requirement. The Court finds that the
named plaintiff's interests in challenging the applicability
of Chapter 154 are identical to the interest of the
remainder of the proposed class.“ Moreover, plaintiffs’
20. At oral argument, defendants did appropriately note that the
Court should not assume that all members of the proposed class will
necessarily oppose application of Chapter 154’s requirements to their
habeas corpus petitions. Defendants may be correct, but this
speculation hardly suffices to show that class certification is
unwarranted. See, e.g, Probe v. State Teachers’ Retirement System, 780
F.2d 776, 781 (9th Cir.) (noting that the fact that some class members
may believe a challenged state retirement plan is legal does not create
“conflict” sufficient to render class certification improper), cert.
denied, 476 U.S. 1170 (1986).
56a
counsel are fully competent to prosecute this case in a
class action. Numerous state and federal courts, including
this Court, have appointed the attorneys for plaintiffs to
represent indigent prisoners under sentence of death. The
Court finds that plaintiff has satisfied the adequacy
requirement.
B. Rule 23(b) a
In addition to satisfying the prerequisites listed in
Rule 23(a), plaintiff must demonstrate that this action falls
within one of the three categories enumerated in Rule
23(b). So far as relevant here, Rule 23(b) is satisfied
where:
(1) the prosecution of separate actions by or
against individual members of the class would
create a risk of (A) inconsistent or varying
adjudications with respect to individual members
of the class which would establish incompatible
standards of conduct for the party opposing the
class; or (B) adjudications with respect to
individual members of the class which would as
a practical matter be dispositive of the interests
of the other members not parties to the
adjudications or substantially impair or impede
their ability to protect their interests; or
(2) the party opposing the class has acted or
refused to act on grounds generally applicable to
the class, thereby making appropriate final
injunctive relief or corresponding declaratory
relief with respect to the class as a whole.
Fed.R.Civ.P. 23(b).
“
57a
Here, plaintiffs seek to maintain the action under
either Rule 23(b)(1) or 23(b)(2). To satisfy subsection
(b)(2), two factors must be present: (1) the defendants
action or refusal to act must be generally applicable to the
class; and (2) injunctive and declaratory relief must be
requested for the class. Plaintiffs have clearly
demonstrated that both factors are present. First,
defendants conduct, the assertions that California satisfies
the opt-in provisions of Chapter 154, affect each member
of the class, and indeed, have been directed at each
member of the proposed plaintiff class. See Christman v.
American Cyanamid Co., 92 F.R.D. 441, 453 & n. 34
(N.D.W.Va.1981) (defendants conduct is "generally
applicable" to the class if the defendant has adopted a
pattern of activity that is likely to be the same as to all
members of the class; "defendant need not have acted
directly against each member of the class"). Second,
plaintiffs have alleged, and the Court has concluded, that
injunctive and declaratory relief are appropriate with
respect to the class as a whole. The Court notes that
Rule 23(b)(2) was specifically drafted to facilitate
vindication of civil rights, particularly where, as here, that
vindication can be remedied through injunctive relief. See
Rule 23, Advisory Committee’s Note to the 1966
Amendments; Coley v. Clinton, 635 F.2d 1364, 1378 (8th
Cir.1980).
This action is also appropriately maintained under
both bases listed in subparagraph (b)(1). Defendants did
not address either basis in their papers, although they did
assert at oral argument that plaintiffs failed to satisfy the
requirements. The Court disagrees. Prosecution of
separate actions by or against plaintiffs would create
precisely the risk of inconsistent adjudications and the
resultant incompatible standards of conduct for defendants
that the Rule was expressly designed to prohibit. Indeed,
at the May 13 hearing, defendants argued that the Court
a A tl
SC -e
58a
should refrain from enjoining defendants for this very
reason: so that other district courts would have the
opportunity to reach a different conclusion regarding the
applicability of Chapter 154. Similarly, Rule 23(b)(1)(B)
is satisfied here because adjudications with respect to
individual members would, “as a practical matter, be
dispositive of the interests of the other class members."
Fed.R.Civ.Pro. 23(b)(1)(B). For instance, were a district
court to find that California qualified under Chapter 154,
nonparty class members would, as a practical matter, have
no choice but to comply with 28 U.S.C. § 2263(a)’s filing
deadline. If the Ninth Circuit or the Supreme Court
subsequently held otherwise, the nonparty class members
would have effectively foregone their rights under Chapter
153 without any opportunity to litigate the matter.
At the May 23 hearing, defendants for the first time
raised two additional arguments in opposition to class
certification. First, defendants claimed that class
certification is usually used for a “terminal purpose." In
the instant case, by contrast, defendants claim that
plaintiffs’ sole purpose in seeking class certification is
momentarily to "disrupt" all pending federal capital
habeas proceedings in California to resolve Chapter 154’s
applicability, and then to send the cases back to the
district courts where they are currently pending. Second,
and relatedly, defendants suggest that by granting
plaintiffs’ requested relief, the Court would somehow
inappropriately or illegitimately deprive other federal
district courts in California of their independent duty and
responsibility to address the applicability of Chapter 154.
Defendants have neither briefed nor cited authority
for either proposition. With respect to the first objection,
the Court notes that, even assuming, arguendo, that class
59a
certification is only appropriate where the suit will
terminate the controversy between the parties,” this
case certainly satisfies that requirement. Plaintiffs have
asked the Court to declare whether Chapter 154 applies
to all state prisoners sentenced to death in California.
Whether the Court answers affirmatively or negatively, its
answer will terminate the controversy over this question.
With regard to defendants’ second objection, the
Court is mindful of the limitations that Article III and
Congress have imposed upon its jurisdiction. The Court
is also sensitive to both the appearance and the reality of
any action that might somehow illegitimately or
inappropriately impose its view on its sister district courts.
At the same time, however, the Court bears an obligation
to resolve questions properly brought before it by litigants.
In this case, plaintiffs have availed themselves of two
devices created by Congress to help litigants in
appropriate circumstances: the "remedial arrow" of the
Declaratory Judgment Act, see Wilton v. Seven Falls Co.,
115 S.Ct. 2137, 2143 (1995), and the expediency and
economy of Rule 23’s various mechanisms for bringing a
class action, see Falcon, 457 U.S. at 155. The Court
believes that it is obligated to resolve the question as
plaintiffs have presented it. The Court has done so, to the
best of its ability. If the Court is mistaken, the appellate
courts will correct it. In the interim, the Court’s decision
21. The Supreme Court’s decision in Eisen strongly suggests that
no such additional requirement exists. See Eisen, supra, 417 U.S. at
i178, 94 S.Ct. at 2153 (1974) ("In determining the propriety of a class
action, the question is ... whether the requirements of Rule 23 are
met.") (internal citations omitted); see also Garcia, 618 F.2d at 267
("Whether a class should be certified depends entirely on whether the
proposal satisfies the requirements of Fed.R.Civ.P. 23.") (emphasis
added).
60a
may constrain the ability of other co-equal district court
judges to decide the issue differently. Far from being an
illegitimate or inappropriate exercise of its power,
however, the Court believes that it was obligated to reach
such a decision.
In the end, defendants’ second objection simply
restates their repeatedly expressed belief that Troy
Ashmus should have brought this controversy before the
Court through a different vehicle (i.e., by way of a motion
in his federal habeas proceedings currently before the
Court in Ashmus v. Calderon, C93-0594 TEH). Had
plaintiff done so, the Court’s decision would not have
directly affected other district courts’ resolution of
Chapter 154’s applicability to California. | However,
plaintiff did not bring the motion as defendants would
have liked. Instead, plaintiff brought this action. The
Court is required to resolve the question as it in fact was
presented, not as defendants wish it had been presented.
D. Conclusion
For the reasons discussed above, and good cause
appearing, plaintiffs shall provisionally maintain this
matter as a class action on behalf of a class consisting of
the following persons:
22. Although neither party briefed the issue, the Court notes that
its jurisdiction under the Declaratory Judgment Act is discretionary.
Employers Reinsurance Corp. v. Karussos, 65 F.3d 796 (9th Cir. 1995).
After reviewing the factors raised in Karussos, however, the Court has
concluded that, at the very least, exercise of its discretionary
jurisdiction is proper in this case; indeed, the Court believes, failure
to exercise its jurisdiction in this case would arguably be an abuse of
that discretion.
6la
All prisoners who have been sentenced to death
by the State of California and are currently
awaiting execution pending resolution of their
state and federal challenges to their state
convictions and sentences, except those such
persons whose convictions and sentences were
affirmed on direct appeal prior to June 6, 1989.
Plaintiff Troy A. Ashmus shall be the named class
representative. The Court shall retain the power to
modify, amend, or revoke the class certification
throughout the pendency of the action.
IIL STATUTORY FRAMEWORK
A. Overview
As noted above, Chapter 154 provides two "opt-in"
procedures, the so-called "post-conviction" procedure (§
2261) and the “unitary review’ procedure (§ 2265).
Defendants concede, and the Court has previously held,
that California does not qualify under § 2261’s "post-
conviction" procedure. California’s eligibility for Chapter
154’s benefits thus depends on whether the state has
complied with the provisions of § 2265.™
23. Plaintiffs contend that § 2261 sets forth basic requirements
that also apply to states opting in under s 2265's unitary review
procedure. Viewed in isolation, the language of § 2261(a) appears to
support this interpretation: "This chapter shall apply to cases arising
under section 2254 brought by prisoners in State custody who are
subject to a capital sentence. It shall apply only if the provisions of
subsections (b) and (c) are satisfied." 28 U.S.C. § 2261(a) (emphasis
added). Congress’ use of the term "only" suggests that independent of
any requirements for unitary review established in § 2265, any opt-in
procedure must satisfy § 2261(b) and (c) to qualify the state for the
benefits of Chapter 154.
62a
The threshold question for determining compliance
with § 2265 is whether the state has created "a ‘unitary
review’ procedure." If a state has a unitary review
procedure, then it qualifies under § 2265 if (1) "the State
establishes by rule of its court of last resort or by statute
a mechanism for the appointment, compensation, and
payment of reasonable litigation expenses of competent
counsel in the unitary review proceedings," § 2265(a); (2)
"The rule of court or statute [] provides standards of
competency for appointment of such counsel," id.; and (3)
the State also properly establishes the requisite
mechanism for offering and appointing counsel pursuant
to § 2265(b). Failure to comply with any of these
mandatory requirements is fatal to a state’s ability to opt-
in under § 2265.
B, Does California Authorize Unitary Review?
"A ‘unitary review’ procedure means a State
procedure that authorizes a person under sentence of
death to raise, in the course of direct review of the
judgment, such claims as could be raised on collateral
However, the Court rejects this reading, for two reasons. First,
it would render the entirety of § 2265 mere surplusage, in direct
contravention of s 2265(a)’s provision that "This chapter shall apply ,
as provided in this section, in relation to a State unitary review
procedure” that complies with the additional requirements of section
2265. Second, it is impossible for a case to simultaneously satisfy the
requirements of § 2261(b) and the requirements of § 2265(a). The
Court’s reading is also supported by the fact that § 2261(a)’s “only if”
language comes from the Powell Committee's original 1989 report,
whereas § 2265's unitary review procedure was added later to "extend
the potential application of the [Powell Committee’s] proposed
procedures to states having ‘unitary review’ systems in capital cases."
1991 Analysis, 137 Cong.Rec. at $3221-22. Accordingly, except
insofar as § 2261(c) is expressly incorporated by § 2265(b), the
holds that § 2261 is inapplicable here.
63a
attack." § 2265(a). Focussing on the term “unitary
review," plaintiffs interpret this provision to mean that the
state must allow collateral issues to be reviewed in the
same proceeding or proceedings as the direct appeal. In
other words, plaintiff claims, seed es a
"si procedure affording identical su eview
md diaeaaiten of direct me ot and collateral claims.” Pls.’
Mem. at 9.
The plain language of the statute, however, provides
that the State procedure need only “authorize[] a person
under sentence of death to raise, in the course of direct
review of the judgment, such claims .." § 2265(a)
(emphasis added). "When a statute speaks with clarity to
an issue judicial inquiry into the statute’s meaning, in all
but the most extraordinary circumstances, is finished."
Estate of Cowart v. Nicklos Drilling, 50S U.S. 469, 475
(1992).
Several references in the legislative history also
support the view that California has the type of unitary
review procedure that would potentially qualify states for
the benefits of the Act The utility of this legislative
24. House Report at 18 ("Proposed 28 U.S.C. § 2261 [codified as
§ 2265] contains provisions that make the Powell Committee
procedures potentially applicable to states, such as California, which
have adopted unitary review systems in capital cases that involve
review of collateral claims concurrently with direct review of the
judgement.) (emphasis added); 1991 Analysis, 137 Cong.Rec. at §
3221 (March 13, 1991) (“California, for example, has adopted a
unitary review procedure for capital cases by rule of its Supreme
Court"); Daniel E. Lungren, Report on Death Penalty Habeas Corpus
Reforms, 137 Cong.Rec. $8716, $8717 (June 26, 1991) (“Lungren
Report") ("California has adopted a unitary review procedure in
capital cases."); see also Defs.’ Ex. N. at 10, Minority Report of
A.B.A. Task Force on Habeas Corpus Reform Co-Chairman Malcolm
M. Lucas, reprinted in Ira P. Robbins, "Toward A More Just and
EEE
64a
history is undermined, however, by the fact that many of
the same speakers made statements supporting plaintiffs’
view. This very inconsistency demonstrates precisely
why legislative history is never dispositive, and is only
resorted to when congressional intent is not clear from
the face of the statute. Here, congressional intent is clear
from the face of the statute. The procedure, to qualify,
need only authorize persons under sentence of death to
raise such claims as could otherwise be raised collaterally.
California authorizes capital petitioners to raise such
claims during the course of direct review. See June 6,
1989 Policies, Timeliness Standards 1-1 to 1-1.2; see also,
e.g., In re Neely, 6 Cal.4th 901, 906, 922, 26 Cal.Rptr.2d
203, 864 P.2d 474 (1993); People v. Mayfield, 5 Cal.4th
142, 197, 209, 19 Cal.Rptr.2d 836, 852 P.2d 331 (1993),
Effective System of Review in State Death Penalty Cases", 40
Am.U.L.Rev. 1, 200 (1990) ("[The California Supreme Court]
promulgated standards ... requiring appellate counsel in capital cases
to promptly ‘investigate factual and legal grounds for the filing of a
petition for a writ of habeas corpus’ and to file such petition ‘without
substantial delay’ (concurrent with the appeal, if possible).”) (quoting
June 6, 1989 Policies, Timeliness Standard 1). dd
25. See, eg., Lungren Report, 137 Cong.Rec. at $8717 (The
proposed Act “[ajuthorizes [a] state unitary procedure in which
appeal and collateral review are handled in [a] single proceeding ...");
1991 Analysis, 137 Cong.Rec. at $3221-22 ("Proposed 28 U.S.C. §
2261 [codified as s 2265] ... would extend the potential application of
the proposed procedures to states having ‘unitary review’ systems for
ae [that] combine the normal functions of direct review
collateral attack in a ‘unitary review’ procedure.") (emphasis
added); see also, 137 Cong.Rec. $18665, $18674 on 2 1991).
Interestingly, defendants adopted the identical view in another case
in this district. "Section 2265 requires the State to establish a
mechanism for appointing counsel with the authority to handle a
direct appeal and collateral review in a single proceeding.” Pils.’ Ex.
7, Odle v. Calderon C88-4280 CAL (N.D.Cal.), Resp.Brief at 5 n. 3
(filed April 26, 1996) (emphasis added).
65a
cert. denied, 512 U.S. 1253, 114 S.Ct. 2780, 129 L.Ed.2d
892 (1993). Indeed, although plaintiffs have presented
evidence that the California Supreme Court rarely reviews
collateral claims together with the direct appeal, exercises
seemingly standardless discretion in allowing consolidation
of the two types of claims, and does not authorize
payment for appointed counsel to investigate all collateral
claims, plaintiffs do not seriously dispute that persons
sentenced to death are authorized to raise such claims
during the pendency of the direct appeal.™
Accordingly, the Court holds that California has a
unitary review procedure, as that term is defined in the
Act. As explained below, however, the Court also
concludes that California’s alleged comprehensive scheme
fails to satisfy the remaining requirements of section 2265,
for several independent reasons.
California’s alleged "mechanism for the appointment,
compensation, and payment of reasonable litigation
expenses of competent counsel" expressly precludes
compensation for raising certain collateral issues.
Appellate counsel’s
duty to investigate [factual and legal grounds for
the filing of a habeas petition] is limited to
26. In response to the Court's question whether any unresolved
factual issues prevent the Court’s issuance of final declaratory relief,
however, plaintiffs did allege that they can show “that although the
state court may not make it ‘official,’ it routinely has effectively
decided the appeal before the habeas petition is filed." Pls.” Supp.
Brief at 15.
66a
~ investigating potentially meritorious grounds for
relief that have come to counsel’s attention in
the course of preparing the appeal. It does not
impose on counsel! an obligation to conduct, nor
does it authorize the expenditure of public funds
for, an unfocused investigation having as its
object uncovering all possible factual bases for a
collateral attack on the judgment.
June 6, 1989 Policies, Timeliness Standard 1-1. (emphasis
added). In other words, appointed counsel’s duty "is
limited [ ] to an investigation of potentially meritorious
grounds for habeas corpus which have come to counsel’s
attention in the course of preparing the appeal." In re
Clark, 855 P.2d 729, 751 (1993) (emphasis added). Only
when the facts already "have come to counsel’s attention
suggesting that a basis for habeas corpus relief may exist,"
will the policies provide compensation. /d. n. 19. The
investigation must then be limited to the "specific facts"
that are then "known to counsel." Jd. at 751-52.
As the Clark Court explained, the policies thus limit
“fishing expeditions’ whose purpose is solely to discover if
any basis for collateral attack on a presumptively valid
judgment can be found.” Jd. n. 19. However sensible that
limitation may be, the Supreme Court has thus construed
its own policies as failing to provide indigent condemned
inmates with counsel who is authorized or compensated
even to investigate, let alone raise, potential collateral
claims beyond those that are knowable by reference to the
four corners of the appellate record. Even then,
appointed counsel is constrained to investigate only the
discrete facts and potential issues that are discernable
from the record.
These limitations run afoul of § 2265(a)’s express
requirement that the unitary réview procedure authorize
6"a
and provide compensation for capital defendants to "raise,
in the course of direct review of the judgement, such
claims as could be raised on collateral attack." § 2265(a)
(emphasis added). The limitations also create an
objectively deficient standard for the performance of
counsel appointed to seek collateral relief in satisfaction
of Chapter 154’s quid pro quo arrangement.“ As the
Ninth Circuit has noted, the meaningful assistance of
counsel in collateral proceedings is important precisely
because it is necessary to enable prisoners to “assert all
possible violations of his constitutional rights" and thus
avoid the risk of defaulting claims that could have
reasonably been discovered through diligent investigation.
Brown v. Vasquez, 952 F.2d 1164, 1167 (9th Cir.1991)
(emphasis added), cert. denied, 503 U.S. 1011, 112 S.Ct.
1778, 118 L.Ed.2d 435 (1992).
The Court’s conclusion draws additional support from
Morales v. Calderon, 85 F.3d 1387 (1996), a Ninth Circuit
decision filed after the close of briefing in this case. As
the Ninth Circuit emphasized, the June 6, 1989 Policies
just discussed are “difficult to articulate," have been
“applied only randomly," and were, at least until Jn re
Clark, neither clear, nor well-established. Morales, 96
C.D.OS. at 3956-57. While the issue before the Ninth
Circuit concerned the timeliness of a petition filed under
the Policies, the Court also referred specifically to the
duties in question here, which are set forth in Timeliness
Standard 1-1. Jd. at 1390.
The well-established need in this area of the law for
rules that are clear and fair also provides some support
27. Although Congress intended to give states wide latitude in
developing such standards, the final decision as to the adequacy of
these standards rests squarely with the federal judiciary. See supra
note 8.
68a
for plaintiffs’ argument that California’s mechanism is
inadequate because the comprehensive scheme is not
created by a single rule or statute. As plaintiffs note, §
2265(a) expressly requires the state to establish the
appropriate mechanism by "rule of its court of last resort"
or by "statute"; "The rule of court or statute must provide
standards of competency." Each of these references is in
the singular, as are the analogous references in U 2261(b).
Defendants, by contrast, argue that “nothing in the
language of the 1996 Act supports plaintiff's suggestion
that Congress expected or much cared whether the several
tasks ... are accomplished by a single passage of printed
words or a multitude of such " Defs.’ 2d Opp’n
at 8. The Court notes that the Act’s language, if narrowly
construed, belies this claim. Defendants’ interpretation
would essentially require the Court to rewrite the relevant
passage ("if the State establishes, by rule of its court of last
resort or by statute [,] a mechanism....") to eliminate the
underlined clause between "establishes" and "mechanism."
Nonetheless, the Court is hesitant to embrace plaintiffs’
hypertechnical interpretation of the Act, particularly given
the existence of other, independent grounds for its
holding.
The Court does conclude, however, that even if
Congress did not intend that the mechanism must be
enacted by a single statute or rule, it undoubtedly did
intend to require that the state affirmatively create a
system, not come forth with a post hoc rationalization.
See, e.g., 1991 Analysis, 137 Cong.Rec. at $3220 ("At a
minimum, the immediate benefits to defendants would
include the requirement that states ... focus on an[d]
articulate standards of competence ...") (emphasis added).
As discussed in the next section, it is readily apparent
that California failed to do so. Indeed, the state’s
competency guidelines, which defendants claim adequately
take into account the need for specialized habeas
69a
expertise, were articulated and recommended in 1985. It
was not until 1989, however, that capital counsel were
required to investigate possible habeas claims. Jn re Clark,
855 P.2d at 751 ("The [June 6, 1989] Policies did, for the
first time, impose an express obligation on counsel
representing appellants in capital cases to investigate
possible bases for habeas corpus.") (emphasis added).
Thus, it is clear that the 1985 guidelines did not "focus on
and articulate standards of competence" for counsel to
raise collateral claims.
D. Does California Have a Rule of Court or Statute
that Provides Standards of Competency for
Proceedings?
Section 2265(a) provides that "[t]he rule of court or
statute must provide standards of competency for the
appointment of such counsel." Defendants argue that
California satisfies this requirement by virtue of the
interaction between U 20 of the Standards of Judicial
Administration Recommended by the Judicial Council,
and Rules of Court 39.5 and 76.5. Section 20, entitled
"Guidelines for Appointment of Counsel in Criminal
Appeals," provides that each “appellate court, when
establishing and maintaining lists of qualified counsel for
appointment in criminal appeals as required by rule 76.5
should follow the guidelines in this section ..." § 20(a)
(emphasis added). Section 20(c) provides:
The Supreme Court should maintain a list of
attorneys for appointment in death penalty cases,
based on the following minimum qualifications:
(1) active practice of law for four years in the
California state courts or equivalent experience;
(2) attendance at three approved appellate
training programs, including one program
— i oo ELL
70a
concerning the death penalty; (3) completion of
seven appellate cases, one of which involves a
homicide; and (4) submission of two appellants’
opening briefs written by the attorney, one of
which involves a homicide, for review by the
court or administrator.
(emphasis added). These are the only standards of
competence identified by defendants.
Section 20 fails to satisfy § 2265(a)’s requirements for
three independent reasons: it (1) is not a rule of court or
statute; (2) does not impose any binding or mandatory
standards; and (3) does not require counsel to have any
experience or competence in bringing habeas petitions.
First, section 20, together with the Introductory
Statement to the Judicial Council’s "rules, standards, and
orders," make clear that section 20 is not a rule of court.
The Introductory Statement points out that "[t]he Judicial
Council is established under article VI, section 6, of the
Constitution, and is given various powers and
responsibilities to improve the administration of justice."
1996 Cal.Rules of Court at i (West 1996). Under its
power to “adopt rules for court administration," the
Judicial Council has adopted certain Rules of Court, which
"have the force of law." Jd. (emphasis added). In
addition, and by contrast, under its power to "make
recommendations to the courts," the Judicial Council has
adopted certain nonmandatory standards, id. (emphasis
added), such as section 20. The nonmandatory nature of
such standards is repeatedly emphasized in the
Introductory Statement, and in section 20 itself:
The nonmandatory nature of the standards is
indicated by the use of ‘should’ instead of the
mandatory ‘shall’. Standards make
Tla
recommendations on practice and procedure,
express goals that courts and judges are urged to
try to attain, and state guidelines for
discretionary action. Even though courts are not
obligated to comply with these
recommendations, goals, and guidelines, courts
should consider them ...
Id. at 1; see also, e.g., section 20(a) ("Each appellate court
... Should follow....); section 20(b) ("Each Court of Appeal
should maintain ..."); section 20(c) ("The Supreme Court
should maintain ...").
Second, and relatedly, section 20 does not impose any
binding or mandatory standards on the California
Supreme Court. Nor have defendants provided any
indication that the Supreme Court has followed § 20(c)’s
recommendation and adopted these standards as binding
upon itself. Defendants attempt to brush aside this
objection by asserting that the Act does not require that
the standards be "inexorably mandatory.™ Defs.’ 2d
28. Alternatively, defendants argue that Rules of Court 39.5 and
76.5 somehow render the guidelines mandatory. Theydo not. Rule
76.5, which governs appointment of counsel in criminal cases,
provides in relevant part that “Each Court of Appeal shall maintain
at least two lists [of qualified attorneys]. In establishing the lists, the
court shall consider the guidelines insection 20 ..." Rule 76.5(b).
Three points bear mentioning. First, Rule 76.5 only requires
the court to consider the § 20 guidelines. It does not render the
guidelines binding or mandatory. Second, Rule 76.5, by its terms,
applies only to criminal appeals, not to habeas proceedings. Habeas
corpus petitions are considered to be "original proceedings seeking
release or modification of custody," not appeals from lower courts.
Rule of Court 56.5; In re Carpenter, 9 Cal.4th 634, 645, (1995) (noting
that California Constitution "grants original subject matter
jurisdiction over habeas corpus proceedings to the superior court, the
Court of Appeal, and [the Supreme Court]"). Third, Rule 76.5’s
reference to “Each Court of Appeal" almost certainly does not refer
72a
Opp’n at 10. However, the language of the Act and the
legislative history discussed above demonstrate that
Congress deemed the provision of competent counsel at
all stages of proceedings as essential to the quid pro quo
tradeoff envisioned under chapter 154. Congress’ express
and repeated mandate that any qualifying mechanism
must provide standards for the appointment of counsel
would be meaningless if the decision whether to apply
those standards was left to the complete discretion of the
court or the guideline administrator.
Defendants do acknowledge that "if and when the
supreme court ever finds it necessary to revise its
procedures to allow that capital appointments be made on
a standardless basis, then our review mechanism would no
longer comply with the letter or spirit of § 2265." Defs.’
May 14, 1996 Supp. Brief at 2 (emphasis in original). The
Court agrees, but it also believes that defendants’
concession fails to recognize the importance that Congress
placed on having mandatory standards. Absent such
standards, federal courts would be unable to evaluate the
to the state Supreme Court. The only citable decision discussing this
section failed to interpret the phrase so broadly. People v. Hackett,
43 Cal. Rptr.2d 219, 228 (Cal.App.Ist Dist.1995); but see Rule of
Court 61(d) (noting that for the purposes of rules 61 to 69, "Court of
Appeal" shall also mean “Supreme Court.")
Next defendants contend that Rule 39.5 resolves “any
conceivable ambiguity” about Rule 76.5’s application to the Supreme
Court’s alleged unitary review procedure. Rule 39.5 provides that
"[t}he rules governing appeals from the superior court in other
criminal cases apply to appeals from judgments rendering the penalty
of death ..." (emphasis added). Rule 39.5 does not render Rule 76.5,
let alone s 20, binding on the Supreme Court, for two reasons. First,
the rules governing appeals, which appear in Chapter I of the Rules,
do not include Rule 76.5, which appears in Chapter IV, governing
administrative provisions. Second, Rule 39.5 applies only to criminal
appeals; it makes no mention of original habeas proceedings, which
are governed by Chapter II’s Rule 56.5.
73a
adequacy of a state’s mechanism without examining the
competency of individual counsel. Such an approach,
however, would create the very type of judicial
intrusiveness that Congress sought to avoid. See Powell
Report at 3242 ("The final judgments as to the adequacy
of any system for the appointment of counsel [ ], however,
rests ultimately with the federal judiciary... [T]he
adequacy of the system--as opposed to the competency of
particular counsel--can be settled through litigation."
(emphasis in original); 1991 Analysis, 137 Cong.Rec. at
$3222 ("The chapter would apply to such a procedure if
it included appointment of counsel meeting articulated
standards of competence") (emphasis added); id. at S3220.
Third, section 20(a) contains no mention of original
habeas proceedings and § 20(c) requires no minimum
experience whatsoever in habeas proceedings. Defendants
conclusorily assert that the standards do not need to
address counsel’s qualifications in habeas matters, because
“appellate counsel and habeas counsel are one and the
same; the competency standards are thus ‘unitary’ as well."
Defs.’ 2d Opp’n at 12. Congress almost certainly did
intend that the competency standards be “unitary,” but
such an intention undermines rather than supports
defendants’ claim that the state’s competency standards
need not consider counsel’s qualifications or experience to
raise “off the record" claims. The plain language of the
Act evinces Congress’ concern with the ability of
competent counsel to address collateral claims. See, e.g.,
§ 2265(a) (The State must establish a "mechanism for the
appointment, compensation, and payment of reasonable
litigation expenses of competent counsel in the unitary
review proceedings, including expenses relating to the
litigation of collateral claims in the proceedings. The rule
of court or statute must provide standards of competency
for the appointment of such counsel.") (emphasis added);
§ 2261(b) (mechanism must provide for "competent
74a
counsel in State post-conviction proceedings [and] ... The
rule of court or statute must provide standards of
competency for the appointment of such counsel.")
(emphasis added); see also 1991 Analysis, 137 Cong.Rec.
at $3220 ("At a minimum, ... these states [must] focus on
an{d] articulate standards of competence for such"
collateral proceedings). As noted above, however, the
Judicial Council promulgated and articulated the
recommended standards more than four years before the
California Supreme Court established the policies that
require appointed counsel to pursue collateral remedies.
Finally, the Court rejects defendants’ assertion that
competence in criminal appeals necessarily encompasses
competence in bringing habeas petitions. As Judge
Godbold, of the Eleventh Circuit, has noted, "[t}he
average trial lawyer, no matter what his or her expertise,
doesn’t know any more about habeas than he does about
atomic energy..... [Habeas] is the most complex area of
the law I deal with." "You Don’t Have To Be a Bleeding
Heart," Representing Death Row: A Dialogue Between Judge
Abner J. Mikvah and Judge John C. Godbold, Human
Rights, Winter 1987, at 22, 24; see also Lonchar v.
Thomas, 116 S.Ct. 1293, L.Ed.2d 440 (1996) (recognizing
the "common practice of substitution specialized capital
counsel for habeas" as an essential consideration in the
development of “fair and effective" habeas reform);
Report of A.B.A. Task Force on Habeas Corpus Reform
reprinted in Ira P. Robbins, Toward A More Just and
Effective System of Review in State Death Penalty Cases, 40
Am.U.L.Rev. 1, 71 & n. 79 (1990) (listing several sources
noting the singular difficulty and complexity of habeas
corpus law).
Accordingly, the Court concludes that California does
not comply with § 2265(a)’s requirement that "[t}he rule
75a
of court or statute must provide standards of competency
for the appointment of such counsel."
E. Does California's Mechanism Provide _the
Required Offer and Appointment of Counsel?
Finally, California fails to make a bona fide offer of
counsel as required by § 2265(b) & 2261(c). By
defendants’ own admission, "Every inmate who is awaiting
appointment of counsel has been ‘offered’ counsel and
that offer has been accepted; what is pending is the
appointment itself." Defendants’ Ist Opp.Mem. at 16
(emphasis in original). The failure to appoint counsel
after an indigent prisoner has accepted such an offer
contravenes the express requirement of § 2261(c), as
incorporated by § 2265(b), that the state’s procedure
"must provide for ... appointment of one or more counsels
to represent the prisoner upon a finding that the prisoner
is indigent and accepted the offer ...". (emphasis added);
see also 1991 Analysis, 137 Cong. Rec. at $3220 ("At a
minimum, the immediate benefits to defendants would
include the requirement that states electing these
procedures actually appoint counsel for the collateral
proceedings ...") (emphasis added).
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IV. RELIEF
A. Declaratory Judgement
"In a case of actual controversy within its jurisdiction
.. any court of the United States ... may declare the rights
and other legal relations of any interested party seeking
such declaration." 28 U.S.C. § 2201(a); American States
Ins. Co. v. Kearns, 15 F.3d 142, 143 (9th Cir.1994). The
Court has concluded that this case presents an actual
controversy that is within its jurisdiction..
Accordingly, the Court has the discretionary power to
issue a declaratory judgment.
Declaratory relief is favored where, as here,
alternative remedies are less effective or unavailable.
Contrary to defendants assertions, case-by-case
adjudication of Chapter 154’s applicability is not a better
or more effective remedy. Case-by-case adjudication not
only will involve a multiplicity of suits litigating identical
legal and factual issues, but also will do nothing to
alleviate the uncertainty giving rise to plaintiffs’ claim.
The risk that Chapter 154 applies will effectively force
plaintiffs whose convictions have been affirmed to file
their claims within the six month deadline, possibly
resulting in unintentional waiver or inadequate
presentation of meritorious claims. This unwitting error
might not be remedied in time to stop an execution even
if Chapter 154 were later found by a higher court to be
inapplicable.
Accordingly, for the reasons discussed above, and
good cause appearing, the Court hereby DECLARES that
Chapter 154 of Title 28 of the United States Code does
not, at the present time, apply to California, because
California has failed to comply with the opt-in provisions
Tla
of 28 U.S.C. § 2261 or § 2265. The Court further declares
that the provisions of Chapter 154 are not applicable to
the federal habeas corpus proceedings of any members of
the provisionally certified class. This declaration shall
remain in effect until and unless the State of California
demonstrates to this Court that it has complied with the
opt-in provisions of 28 U.S.C. § 2261 or § 2265.
B, Preliminary Injuncti
In the Ninth Circuit, in order to be entitled to
preliminary injunctive relief, a plaintiff must show one of
the following:
[Ejither (1) a combination of probable success
on the merits and the possibility of irreparable
injury, or (2) that serious questions are raised
and the balance of hardships tips sharply in [the
plaintiff's] favor.
EEOC v. Recruit U.S.A. Inc., 939 F.2d 746, 752 (9th
Cir.1991). "The alternative standards are not separate tests
but the outer reaches of a single continuum. Essentially
the trial court must balance the equities in the exercise of
its discretion." International Jensen Inc. v. Metrosound
U.S.A., Inc., 4 F.3d 819, 822 (9th Cir.1993). A grant or
denial of a motion for a preliminary injunction lies within
the discretion of the district court, and it will be reversed
only if the court relied on an erroneous legal premise or
otherwise abused its discretion. Chalk v. U.S. District
Court, 840 F.2d 701, 704 (9th Cir.1988).
Plaintiffs have satisfied both prongs of the test for
preliminary injunctive relief. Prior to issuance of the
Court’s TRO, defendants’ threats to invoke Chapter 154’s
expedited review provisions were causing plaintiffs to
forego rights to which they are entitled under Chapter
153. Defendants’ assertions during the course of this
78a
litigation leave little room for doubt that, absent injunctive
relief, they will continue to make such threats and
assertions.
As a practical matter, defendants’ assertions were
securing for the State the benefits of the Act, regardless
of whether California actually provides the competent
counsel] that Congress required states to give plaintiffs as
a quid pro quo for receiving such benefits. For these
reasons, defendants’ threats were effectively depriving
plaintiffs of rights that the Court has declared they are
entitled to under Chapter 153, and, arguably, under the
Due Process Clause as well. Whether, as plaintiffs assert,
this effective deprivation constitutes "deprivation" within
the meaning of 42 U.S.C. § 1983 appears to be a difficult
question of first impression. However, at the least,
plaintiff has raised serious questions in this regard. Given
the balance of hardships in this case and the potential life
or death consequences at stake, the Court is obligated to
resolve any doubts in plaintiffs’ favor and to grant a
preliminary injunction.
In addition, and independent of 42 U.S.C. § 1983, the
Court finds that injunctive relief is necessary and proper
to effectuate the terms of its declaratory judgment.
Accordingly, the Court may issue injunctive relief pursuant
to 28 U.S.C. § 2202. See Doran v. Salem Inn, Inc., 422
U.S. 922 (1975).
For the foregoing reasons, the Court reaffirms its
May 24, 1996 order converting the TRO into a
preliminary injunction. Accordingly, as indicated in that
order, defendants their agents, servants, employees and
attorneys, and all those in active concert with them ARE
HEREBY RESTRAINED AND ENJOINED from trying
or seeking to obtain for the State of California the
benefits of the provisions of Chapter 154 of Title 28,
79a
United States Code, in any state or federal proceeding
involving any class member.
Vv. STAY
Defendants have requested a temporary stay of the
Court’s injunctive relief and provisional class certification,
“solely for the purpose of facilitating defendants’
anticipated application to the Ninth Circuit for a stay
pending appeal." Good cause appearing, and in deference
to the important state interests previously recognized by
the Court, the Court hereby STAYS the provisional class
certification and preliminary injunctive relief for a period
of five (5) days. The Court DENIES defendants’
alternative request for this Court to issue a partial stay
pending appeal.
80a
CONCLUSION
For the reasons discussed above, and good cause
appearing, it is hereby ORDERED that
(1) Plaintiff's request for provisional class certification
is GRANTED;
(2) Plaintiffs request for final declaratory relief is
GRANTED;
(3) Plaintiff's request for preliminary injunctive relief
is GRANTED; and
(4) Defendants’ request for a five (5) day partial stay
of the Court’s order is GRANTED.
IT IS SO ORDERED.
DATED 6/14/96 /s/THELTON E. HENDERSON
THELTON E. HENDERSON, CHIEF
JUDGE
UNITED STATES DISTRICT COURT
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>
CONSTITUTION OF THE UNITED STATES
AMENDMENT XI--SUITS AGAINST STATES
Amendment XI. Suits Against States
’ The Judicial power of the United States shall not be
construed to extend to any suit in law or equity,
commenced or prosecuted against one of the United
States by Citizens of another State, or by Citizens or
Subjects of any Foreign State.
82a
UNITED STATES CODE ANNOTATED
TITLE 28. JUDICIARY AND JUDICIAL
PROCEDURE PART VI--PARTICULAR
PROCEEDINGS
CHAPTER 154--SPECIAL HABEAS CORPUS
PROCEDURES IN CAPITAL CASES
§ 2261. Prisoners in State custody subject to capital
sentence; appointment of counsel; requirement of rule of
court or statute; procedures for appointment
(a) This chapter shall apply to cases arising under
section 2254 brought by prisoners in State custody who are
subject to a capital sentence. It shall apply only if the
provisions of subsections (b) and (c) are satisfied.
(b) This chapter is applicable if a State establishes by
statute, rule of its court of last resort, or by another
agency authorized by State law, a mechanism for the
appointment, compensation, and payment of reasonable
litigation expenses of competent counsel in State post-
conviction proceedings brought by indigent prisoners
whose capital convictions and sentences have been upheld
on direct appeal to the court of last resort in the State or
have otherwise become final for State law purposes. The
rule of court or statute must provide standards of
competency for the appointment of such counsel.
(c) Any mechanism for the appointment,
compensation, and reimbursement of counsel as provided
in subsection (b) must offer counsel to all State prisoners
under capital sentence and must provide for the entry of
an order by a court of record--
(1) appointing one or more counsels to represent
the prisoner upon a finding that the prisoner is indigent
and accepted the offer or is unable competently to decide
whether to accept or reject the offer;
(2) finding, after a hearing if necessary, that the
prisoner rejected the offer of counsel and made the
83a
decision with an understanding of its legal consequences;
or !
(3) denying the appointment of counsel upon a
finding that the prisoner is not indigent.
(d) No counsel appointed pursuant to subsections (b)
and (c) to represent a State prisoner under capital
sentence shall have previously represented the prisoner at
trial or on direct appeal in the case for which the
appointment is made unless the prisoner and counsel
expressly request continued representation.
(e) The ineffectiveness or incompetence of counsel
during State or Federal post-conviction proceedings in a
capital case shall not be a ground for relief in a
proceeding arising under section 2254. This limitation
shall not preclude the appointment of different counsel,
on the court’s own motion or at the request of the
prisoner, at any phase of State or Federal post-conviction
proceedings on the basis of the ineffectiveness or
incompetence of counsel in such proceedings.
84a
UNITED STATES CODE ANNOTATED
TITLE 28. JUDICIARY AND JUDICIAL
PROCEDURE PART VI--PARTICULAR
PROCEEDINGS CHAPTER 154--SPECIAL HABEAS
CORPUS PROCEDURES IN CAPITAL CASES
§ 2265. Application to State unitary review procedure
(a) For purposes of this section, a “unitary review"
procedure means a State procedure that authorizes a
person under sentence of death to raise, in the course of
direct review of the judgment, such claims as could be
raised on collateral attack. This chapter shall apply, as
provided in this section, in relation to a State unitary
review procedure if the State establishes by rule of its
court of last resort or by statute a mechanism for the
appointment, compensation, and payment of reasonable
litigation expenses of competent counsel in the unitary
review proceedings, including expenses relating to the
litigation of collateral claims in the proceedings. The rule
of court or statute must provide standards of competency
for the appointment of such counsel.
(b) To qualify under this section, a unitary review
must include an offer of counsel following trial
for the purpose of representation on unitary review, and
entry of an order, as provided in section 2261(c),
concerning appointment of counsel or waiver or denial of
appointment of counsel for that purpose. No counsel
appointed to represent the prisoner in the unitary review
proceedings shall have previously represented the prisoner
at trial in the case for which the appointment is made
unless the prisoner and counsel expressly request
continued representation.
(c) Sections 2262, 2263, 2264, and 2266 shall apply in
relation to cases involving a sentence of death from any
State having a unitary review procedure that qualifies
under this section. References to State "post-conviction
85a
review" and "direct review" in such sections shall be
understood as referring to unitary review under the State
procedure. The reference in section 2262(a) to "an order
under section 2261(c)" shall be understood as referring to
the post-trial order under subsection (b) concerning
representation in the unitary review proceedings, but if a
transcript of the trial proceedings is unavailable at the
time of the filing of such an order in the appropriate State
court, then the start of the 180-day limitation period under
section 2263 shall be deferred until a transcript is made
available to the prisoner or counsel of the prisoner.
86a
WEST’S ANNOTATED CALIFORNIA CODES
GOVERNMENT CODE
TITLE 8. THE ORGANIZATION AND
GOVERNMENT OF COURTS
CHAPTER 2. THE JUDICIAL COUNCIL
ARTICLE 1. GENERAL PROVISIONS
§ 68511.5. Selection of appointed counsel to handle
criminal appeals by indigent defendants
Not later than January 1, 1985, the Judicial
Council shall adopt rules of court regulating the selection
of appointed counsel, other than the State Public
Defender, to handle criminal appeals by indigent
defendants. These rules shall establish procedures for the
appointment of counsel in all appellate districts. In
developing these rules, the Judicial Council shall consider
the need to include screening of eligible appointees, the
need to match the skills and experience of the attorney
with the demands of the case and the process by which
this might be done, and the need or desirability of
evaluating an attorney’s performance before assigning the
attorney to another case. Further, in developing these
rules, the Judicial Council shall consult with local bar
associations and the Office of the State Public Defender.
87a
WEST’S ANNOTATED CALIFORNIA CODES
GOVERNMENT CODE
TITLE 8. THE ORGANIZATION AND
GOVERNMENT OF COURTS
CHAPTER 1. GENERAL PROVISIONS
§ 68070. Rules of court; authority to make; restrictions;
uniformity
(a) Every court may make rules for its own
and the government of its officers not
inconsistent with law or with the rules adopted and
prescribed by the Judicial Council. These rules shall not:
(1) Impose any tax, charge, or penalty upon any legal
proceeding, or for filing any pleading allowed by law.
(2) Give any allowance to any officer for services.
(b) The Judicial Council shall adopt rules or
procedures to encourage uniformity of requirements
a court and statewide. The subjects on which
should be sought shall include, but are not
limited to, (1) the form of papers, (2) limitations on the
filing of papers, (3) rules relating to law and motion, and
(4) requirements concerning documents to be filed at or
prior to trial.
WEST’S ANNOTATED CALIFORNIA CODES
CALIFORNIA RULES OF COURT
TITLE ONE. APPELLATE RULES
DIVISION I. RULES
RELATING TO THE SUPREME COURT AND
COURTS OF APPEAL
CHAPTER IV. ADMINISTRATIVE PROVISIONS
GOVERNING REVIEWING COURTS
Rule 76.5. Appointment of counsel in criminal appeals
(a) he emer Each appellate court shall adopt
procedures for appointment of counsel in criminal cases
for indigent appellants who are not represented by the
State Public Defender. The procedures shall require each
attorney to complete a questionnaire showing the date of
admission to the bar and the attorney’s qualifications and
__ experience.
(b) [Lists of qualified attorneys] On receiving each
completed questionnaire, the court shall evaluate the
attorney’s qualifications to represent appellants in criminal
cases, and then place the attorney’s name on one or more
lists to receive appointments to cases for which he or she
Each Court of Appeal shall maintain at least
89a
(d) [Contracts for performance of administrative
functions] The court may contract with an administrator
having substantial experience in handling criminal appeals
to perform the functions specified in this rule. The
guidelines in section 20 of the Standards of Judicial
Administration need not be applied if the contract
provides for a qualified attorney to consult with and assist
appointed counsel concerning the issues on appeal and
appellant’s opening brief. The court shall provide the
administrator with information needed for the
performance of the administrator’s duties, and, if the
administrator is to perform the review and evaluation
functions specified in subdivision (c), the court shall notify
the administrator of superior or substandard performance
by appointed counsel.
90a
WEST’S ANNOTATED CALIFORNIA CODES
CALIFORNIA RULES OF COURT
APPENDIX TO CALIFORNIA RULES OF COURT
DIVISION I. STANDARDS OF JUDICIAL
(b) [Courts of Appeal] Each Court of Appeal should
maintain three lists of qualified
List I (For appointment to cases in which probation
was granted, or the sentence is five years or less in state
prison): (1) active membership in the
9la
List II (For appointment to cases in which the
sentence is five years to fifteen years in state prison): (1)
active practice of law for 18 months in the California state
courts or equivalent experience; (2) attendance at two
approved appellate training programs; (3) completion of
two appellate cases; and (4) submission of two appellant’s
opening briefs written by the attorney, for review by the
court or administrator.
List III (For appointment to cases in which the
sentence is fifteen years to life in state prison): (1) active
practice of law for three years in the California state
courts or equivalent experience; (2) attendance at two
approved appellate training programs; (3) completion of
five appellate cases; and (4) submission of two appellant’s
opening briefs written by the attorney, for review by the
court or administrator.
(c) [Supreme Court] The Supreme Court should
maintain a list of attorneys for appointment in death
penalty cases, based on the following minimum
qualifications: (1) active practice of law for four years in
the California state courts or equivalent experience; (2)
attendance at three approved appellate training programs,
including one program concerning the death penalty; (3)
completion of seven appellate cases, one of which involves
a homicide; and (4) submission of two appellant’s opening
briefs written by the attorney, one of which involves a
homicide, for review by the court or administrator.
any Public
defender has been appointed by the Supreme Court or by
a court of appeal to represent a party to any appeal or
such counsel] shall receive a reasonable sum
for compensation and necessary expenses, the amount of
which shall be determined by the court and paid from any
funds appropriated to the Judicial Council for that
Claim for the payment of such
purpose.
and expenses shall be made on a form prescribed by the
Judicial Council and presented by counsel to the clerk of
the appointing court. After the court has made its order
fixing the amount to be paid the clerk shall transmit a
copy of the order to the State Controller who shall draw
his warrant in payment thereof and transmit it to the
payee.
93a
WEST’S ANNOTATED CALIFORNIA CODES
CALIFORNIA SUPREME COURT
SUPREME COURT POLICIES REGARDING CASES
ARISING FROM JUDGMENTS OF DEATH
Policy
1. Stays of execution.
2. Withdrawal of counsel.
3. Standards governing filing of habeas corpus petitions
and compensation of counsel in relation to such
petitions.
Adopted by the Supreme Court Effective June 6, 1989
Policy 1. Stays of \xecution
The Court will consider a motion for a stay of
execution only if such a motion is made in connection with
a petition for a writ of habeas corpus filed in this court, or
to permit certiorari review by the United States Supreme
Court.
Policy 2. Withdrawal of counsel
The court will consider a motion to withdraw as
attorney of record only if appropriate replacement counsel
is ready and wiling to accept appointment for appropriate
postappeal representation related to the case.
Policy 3. Standards governing filing of habeas corpus
petitions and compensation of counsel in relation to such
petitions
The Supreme Court promulgates these standards as
a means of implementing the following goals with respect
to petitions for writs of habeas corpus relating to capital
cases: (i) ensuring that potentially meritorious habeas
94a
corpus petitions will be presented to and heard by this
court in a timely fashion; (ii) providing appointed counsel
some certainty of payment for authorized legal work and
investigation expenses; and (iii) providing this court with
a means to monitor and regulate expenditure of public
funds paid to counsel who seek to investigate and file
habeas corpus petitions.
For these reasons, effective June 6, 1989, all petitions
for writs of habeas corpus arising from judgments of
death, whether the appeals therefrom are pending or
previously resolved, are governed by these standards:
1. Timeliness standards
1-1. Appellate counsel in capital cases shall have a
duty to investigate factual and legal grounds for the filing
of a petition for a writ of habeas corpus. The duty to
investigate is limited to investigating potentially
meritorious grounds for relief that have come to counsel’s
attention in the course of preparing the appeal. It does
not impose on counsel an obligation to conduct, nor does
it authorize the expenditure of public funds for, an
unfocused investigation having as its object uncovering all
possible factual bases for a collateral attack on the
judgment. Instead, counsel has a duty to investigate
potential habeas corpus claims only if counsel has become
aware of information that might reasonably lead to actual
facts supporting a claim. All petitions for writs of habeas
corpus should be filed without substantial delay.
1-1.1. A petition for a writ of habeas corpus will
be presumed to be filed without substantial delay if it is
filed within 90 days after the final due date for the filing
of appellant’s reply brief on the direct appeal.
95a
1-1.2. A petition filed more than 90 days after
the final due date for the filing of appellant’s reply brief
on the direct appeal may establish absence of substantial
delay if it alleges with specificity facts showing the petition
was filed within a reasonable time after petitioner or
counsel (a) knew, or should have known, of facts
supporting a claim and (b) became aware, or should have
become aware, of the legal basis for the claim.
1-1.3. Alternatively, a petition may establish
absence of substantial delay if it alleges with specificity
facts showing that although petitioner or counsel was
aware of the factual and legal bases for the claim before
January 16, 1986 (the date of finality of In re Stankewitz
(1985) 40 Cal.3d 391, 396-397, fn. 1 [220 Cal.Rptr. 382,
384, fn. 1, 708 P.2d 1260, 1262, fn. 1] ), the petition was
filed within a reasonable time after that date. 1-2. Ifa
petition is filed after substantial delay, the petitioner must
demonstrate good cause for the delay. A petitioner may
establish good cause by showing particular circumstances
sufficient to justify substantial delay.
1-3. Any petition that fails to comply with these
requirements may be denied as untimely.
2. Compensation standards
2-1. This court’s appointment of counsel for a person
under a sentence of death is for the following: (i)
pleadings and proceedings related to preparation and
certification of the appellate record; (ii) representation in
the direct appeal before the California Supreme Court;
(iii) preparation and filing of habeas corpus petitions and
other ancillary pleadings in the California Supreme Court;
(iv) preparation and filing of a petition for a writ of
certiorari, or an answer thereto, in the United States
Supreme Court and, if certiorari is granted, preparation
——— wr
ee A Mh nh ee
96a
and filing of a brief or briefs on the merits and
preparation and presentation of oral argument; (v)
representation in the trial court relating to proceedings
pursuant to Penal Code sections 1193 and 1227; and (vi)
preparation and filing of a petition for clemency with the
Governor of California no earlier than after exhaustion of
the initial round of collateral challenges in federal court.
Absent prior authorization by this court, this court will not
compensate counsel for the filing of any other motion,
petition, or pleading in any other California or federal
court or court of another state. Counsel who seek
compensation for representation in another court should
secure appointment by, and compensation from, that
court.
2-2. Appellate counsel should expeditiously
investigate possible bases for filing a petition for a writ of
habeas corpus. As a general rule, this investigation should
be done concurrently with review of the appellate record
and briefing on appeal. Requests by appointed counsel
for authorization to incur, and reimbursement of,
investigation expenses shall be governed by the following
standards:
2-2.1. Without prior authorization of the court,
counsel may incur expenses up to a total of $3,000 for
habeas corpus investigation, and may submit claims to the
court for reimbursement up to that amount. The court
will reimburse counsel for expenses up to $3,000 that were
reasonably incurred.
2-2.2. If after incurring $3,000 in expenses,
counsel determines it is necessary to incur additional
expenses for which he or she plans to seek reimbursement
from the court, counsel must seek and obtain prior
authorization from the court. As a general rule, the court
will not reimburse counsel for expenses exceeding $3,000,
97a
without prior authorization of the court. Requests by
appointed counsel for prior authorization to incur
investigation expenses shall be governed by the following
standards:
2-3. On or before the date the appellant’s opening
brief on appeal is filed, counsel shall file with this court a
"Confidential request for authorization to incur expenses
to investigate potential habeas corpus issues." The court
will entertain an initial request filed at a later time only if
good cause for the delay is shown.
2-4. The confidential request for authorization to
incur expenses shall set out:
2-4.1. The issues to be explored;
2-4.2. Specific facts that suggest there may be an
issue of possible merit
2-4.3. An itemized list of the expenses requested
for each issue of the proposed habeas corpus petition;
and
2-4.4. (a) An itemized listing of all expenses
previously sought from, and/or approved by any court of
this state and/or any federal court in connection with any
habeas corpus proceeding or investigation concerning the
same judgment and petitioner; (b) A _ statement
summarizing the status of any proceeding or investigation
in any court of this state and/or any federal court
concerning the same judgment and petitioner; and (c) A
copy of any related petition previously filed in any trial
and/or lower appellate court of this state and/or any
federal court concerning the same judgment and
petitioner.
:
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98a
2-5. Counsel generally will not be awarded
compensation for fees and expenses relating to matters
that are clearly not cognizable in a petition for a writ of
habeas corpus.
2-6. When a petition is pending in this court to
exhaust claims presented in a federal habeas corpus
petition, a request by counsel for investigative funds to
bolster or augment claims already presented in the
petition normally will be denied absent a showing of
strong justification for the request. A request for
investigative funds may be granted if the petitioner
demonstrates that he or she has timely discovered new
and potentially meritorious areas of investigation not
previously addressed in the petitioner’s federal or state
petitions. This has been the internal operat
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