# Amicus Curiae Brief — Calderon v. Ashmus

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0119%3A06

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1998
- **Citation:** 523 U.S. 740

## Text

IN THE
Supreme Court of the United States

OCTOBER TERM, 1997

ARTHUR CALDERON, Warden, et al.,
Petitioners,
vs.

Troy A. ASHMUS, et al.,
Respondents.

On Petition for Writ of Certiorari to the
United States Court of Appeals for the Ninth Circuit

MOTION FOR LEAVE TO FILE AND
BRIEF AMICUS CURIAE OF THE
CRIMINAL JUSTICE LEGAL FOUNDATION
IN SUPPORT OF THE PETITION FOR
WRIT OF CERTIORARI

KENT S. SCHEIDEGGER*
CHRISTINE M. MURPHY
Criminal Justice Legal Fdn.
2131 L Street

Sacramento, CA 95816
Telephone: (916) 446-0345

Attorneys for Amicus Curiae
Criminal Justice Legal Foundation

_ *Attorney of Record

n\ (\

QUESTIONS PRESENTED

The Court of Appeals in the present case affirmed an
injunction issued by the District Court, which forbade the state
Attorney General and other state officials from arguing, in
actions brought against them in other courts, their position on an
unsettled, debatable question regarding the interpretation of an
Act of Congress. This raises the following questions:

1. Is the assertion in a court of law of such an argument a
“violation of federal law” of the kind necessary to qualify for
the Ex parte Young exception to Eleventh Amendment immu-
nity?

2. Is the issuance of such an injunction a proper use of the
equitable powers of the court, or is it an abuse of discretion?

IN THE

Supreme Court of the United States
OCTOBER TERM, 1997

ARTHUR CALDERON, Warden, et al.,
Petitioners,

VS.

Troy A. ASHMUS, et al.,

Respondents.

MOTION OF AMICUS CURIAE FOR LEAVE
TO FILE BRIEF IN SUPPORT OF THE PETITION
FOR WRIT OF CERTIORARI

Pursuant to Supreme Court Rule 37.2, the Criminal Justice
Legal Foundation respectfully moves for leave to file the
accompanying brief amicus curiae in support of the petition in
this case. Counsel for petitioner has consented, but counsel for
respondent has withheld consent.

INTEREST OF AMICUS CURIAE

The Criminal Justice Legal Foundation (CJLF) is a non-
profit California corporation organized to participate in litiga-
tion relating to the criminal justice system as it affects the
public interest. CJLF seeks to bring the due process protection
of the accused into balance with the rights of the victim and of
society to rapid, efficient and reliable determination of guilt and
swift execution of punishment.

The injunction issued in the present case is an unprece-
dented intrusion upon the Attorney General’s ability to repre-

iV

sent the people of the state in courts of law. Such interference
is contrarv to the rights of victims and society which CJLF was
formed to advance.

For the foregoing reason, amicus requests leave to file its
brief.

November, 1997
Respectfully submitted,

KENT S. SCHEIDEGGER

Attorney for Amicus Curiae
Criminal Justice Legal Foundation

TABLE OF CONTENTS
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I

Ex parte Young has been, and should remain, limited
to injunctions against enforcement of unconstitutional
statutes and violations of federal law, neither of which

bens cocurved im thls COBO... wwe ccc cc cece cvecees 5
II
The injunction issued in this case was an unprecedented,
improper use of judicial power ..............6.0005: 8
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B. Interference with executive discretion ......... 11
C. Interference with other cours ................ 12
By Ee Ms SED icin dvcccpennseucsssuees 13
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Injunctive relief in the present case was neither necessary nor
sufficient to resolve the underlying uncertainty ....... 14

(v)

vi

A. Unnecessary intrusion .................055-

B. An ineffective solution.....................

Conclusion

vii
TABLE OF AUTHORITIES
Cases

Agostini v. Felton, 138 L. Ed. 2d 391,

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Bee. BC, CRO cacdevcbbv avant cosbesieveivetres 17
BO. B.C. GEBES cic cai civevetevcudeusbas cues 18

xi

Antiterrorism and Effective Death Penalty Act of 1996,

Is Tek Ms, a ae 3
State Constitution
As AR eed Sle hy eee Br vee ears 10
Say Ge, Seely Voll Oe cided oh cc Peabo Aavilvie 10
Treatise

16B C. Wright, A. Miller, & E. Cooper, Federal Practice &
ge Re Peer eee aye pac 19
Miscellaneous

California Supreme Court Policies Regarding Cases Arising
I oso as 17

IN THE

Supreme Court of the United States

OCTOBER TERM, 1997
ARTHUR CALDERON, Warden, et al.,
? Petitioners,
vs.
Troy A. ASHMUS, et al.
Respondents.

BRIEF AMICUS CURIAE OF THE
CRIMINAL JUSTICE LEGAL FOUNDATION
IN SUPPORT OF THE PETITION FOR
WRIT OF CERTIORARI

SUMMARY OF FACTS AND CASE

The present case began over 13 years ago.'

“Most of the basic facts [of Ashmus’ crime] were essen-
tially undisputed at trial.

“About 4 o’clock on the afternoon of Saturday, May 19,
1984, Marcella (Marcie) D., who was seven years of age, rode
to Howe Park in Sacramento on her bicycle. There she met
her brother Arby, age 10, who was responsible for her, and
Arby’s friend Ernesto (P.J.) G., age 9. Arby and P.J. walked
to a pond to fish from a dock, and Marcie went to play with
some children within a few feet of the boys.

“Defendant, who was 22 years old, approached Arby and
P.J. as they were fishing. For the past few days he had been

—
.

Rule 37.6 Statement: This brief was written entirely by counsel for amicus, as
listed on the cover, and not by counsel for any party. No outside contributions
were made to the preparation or submission of this brief.

camping in an area in adjacent Santa Anita Park called
Stoner’s Pit, a site that was filled with litter but also secluded
and covered with vegetation. He gave the boys advice and
help in their fishing, and stayed nearby.

“About 5 or 5:30 p.m., Arby and PJ. walked to the park
clubhouse. Marcie soon rode up. She said that she was going
off to Santa Anita Park with defendant: he had told her that he
knew of a duck’s nest there, and that he would give her a
duckling if any had hatched. The boys said that she should
return in about an hour.

“Defendant and Marcie proceeded to Stoner’s Pit. Once
there, he subjected her to a fatal attack. He raped her and
perhaps also penetrated her with some foreign object, making
a very large tear through the length of her vagina to within a
quarter of an inch of her rectum. He sodomized her, inflicting
two small wounds in the anal or recta! tissue. He possibly
committed oral copulation by inserting his penis into her
mouth. He evidently ejaculated over her body. He stuffed
into her mouth and throat material including two plastic bags,
a piece of cellophane about six inches long and two to three
inches wide, and a pair of red shorts she had been wearing; the
bags were wedged side-by-side in separate tight wads deep in
her throat with the cellophane in between; the shorts were
tightly compressed within her mouth; the bags obstructed her
throat and caused her to die by asphyxiation. Covering her
naked body with a carpet remnant he had used for a sleeping
mat during his stay at Stoner’s Pit, he fled the scene.” People
v. Ashmus, 54 Cal. 3d 932, 952-953, 820 P. 2d 214, 222
(1991).

The jury found Ashmus guilty of rape, sodomy, lewd acts on
a child, and murder. It found true the “special circumstances” that
the murder was committed in the course of the three sex crimes,
making Ashmus eligible for capital punishment, and in the penalty
phase the jury returned a verdict of death. /d., at 952, 820 P. 2d,
at 222. The California Supreme Court affirmed in a thorough,
unanimous opinion by Justice Mosk, spanning 81 pages in the
official reports. /d. That was almost six years ago.

Ashmus filed an application for counsel and stay in federal
court on February 17, 1993. See Ashmus v. Calderon, 935

F. Supp. 1048, 1054, App. to Pet. for Cert. 26a-27a (ND Cal.
1996). The case has been in federal district court for over four
years now.

On April 24, 1996, the President signed the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No.
104-132, 110 Stat. 1214. Sections 101 through 106 of that Act
contain a number of reforms of general habeas law. Section 107
added Chapter 154 to U. S. Code Title 28, containing additional
reforms contingent upon the state adopting qualifying measures
regarding appointment of counsel.

The Attorney General of California, a defendant in the present
case, has taken the position that California qualifies for Chapter
154. Rather than litigate this question in his habeas proceeding,
Ashmus filed the present civil action, seeking declaratory and
injunctive relief. He filed that action April 24, the same day the
President signed the Act.

The District Court granted declaratory relief that Chapter 154
does not apply to California. 935 F. Supp., at 1075, App. to Pet.
for Cert. 76a. Further, the court granted injunctive relief:

“(D]efendants . . . 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, United States Code, in any state or federal proceed-
ing involving any class members.” /d., at 1076, App. to Pet.
for Cert. 78a-79a.’

The Court of Appeals affirmed, modifying the injunction only
slightly to allow state officials to argue that future changes may
qualify for Chapter 154. App. to Pet. for Cert. 21a.

SUMMARY OF ARGUMENT

The Eleventh Amendment precludes this suit, because an
essential element of the Ex parte Young exception is missing.

2. Interpreted literally, this injunction would even forbid the present certiorari
petition. Such an order would be void. See /n re Chetwood, 165 VU. S. 443,
461 (1897).

-_-

Defendants do not seek to enforce any unconstitutional statute,
and they have neither committed nor threatened any violation of
federal law. The mere assertion in a court of law of a good-faith
argument is not a “violation,” within the meaning of Young,
regardless of its effect on the plaintiff.

Even if the District Court did have jurisdiction, the issuance
of an injunction in this case was an improper exercise of equitable
power. To enjoin the Attorney General from asserting a good-
faith argument in other cases before other courts, which have been
filed against state officials, not by them, is a massive and unprece-
dented intrusion upon the discretionary responsibilities of an
executive officer. Further, the preliminary injunction was neither
necessary nor effective to resolve the uncertainty in the law. Only
a final judgment can do that.

ARGUMENT

The District Court in the present case issued an injunction of
breathtaking audacity. That order forbids officers of the state from
asserting a good-faith position on an important unsettled question
of law in other cases in other courts before other judges. These
other cases, furthermore, were not commenced by these officers,
but rather have been or will be brought against these officers, as
respondents, by the members of the plaintiff class.

Petitioners assert that the Eleventh Amendment precludes this
suit altogether. The argument on this point is ably presented in the
petition, in the Fourth Circuit's opinion in Booth v. Maryland, | 12
F. 3d 139 (1997), and in Maryland’s Brief in Opposition in that
case, No. 97-5623. Amicus will add only a brief argument in part
I. Yet even if the suit were not jurisdictionally precluded, the
question would remain whether this was a proper use of the
injunctive power. The existence of the power and the propriety of
its use are separate questions. Compare Marbury v. Madison, |
Cranch 137, 173, 176 (1803) (original mandamus would be proper
remedy, but Supreme Court had no jurisdiction to issue it) with Ex
parte Watkins, 3 Pet. 193, 208-209 (1830) and Ex parte Watkins,
7 Pet. 568, 572-574 (1833) (Supreme Court had jurisdiction to
issue Original habeas, but writ did not lie to attack final judgment).
That argument is presented in parts II and III.

I. Ex parte Young has been, and should remain,
limited to injunctions against enforcement of
unconstitutional statutes and violations of federal law,
neither of which has occurred in this case.

Under the Eleventh Amendment, a private party’s suit in federal
court “against state officials that is in fact a suit against a State is
barred regardless of whether it seeks damages or injunctive relief.”
Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 102
(1984). On its face, this principle would appear to preclude all
suits against state officers acting in their official capacities, since
“the State itself will have a continuing interest in the litigation
whenever state policies or procedures are at stake.” Jdaho v.
Coeur d'Alene Tribe of Idaho, 138 L. Ed. 2d 438, 448, 117 S. Ct.
2028, 2034 (1997).

The rule of Ex parte Young, 209 U.S. 123 (1908), permitting
such suits, is an exception. Coeur d'Alene, at 447, 117 S. Ct., at
2034. That exception “rests on a fictional distinction between the
official and the State.” /d., at 448, 117 S. Ct., at 2034. That
fiction does not extend to every prospective relief case. /bid. It
must be applied judiciously to “ensure that the doctrine of
sovereign immunity remains meaningful, while also giving
recognition to the need to prevent violations of federal law.” Jbid.
(emphasis added).

“In accordance with its original rationale, Young applies only
where the underlying authorization upon which the named official
acts is asserted to be illegal.” Papasan v. Allain, 478 U.S. 265,
277 (1986) (emphasis added). Even in Coeur d'Alene, where this
Court was deeply divided on other aspects of the Eleventh
Amendment, there was unanimity on this point. An essential
element of the Young exception is a violation of federal law. See
138 L. Ed. 2d, at 455, 117 S. Ct., at 2040 (majority) (“on-going
violation of federal law”); id., at 463-464, 117 S. Ct., at 2046
(O’Connor, J., concurring in part and concurring in the judgment)
(same); id., at 467, 117 S. Ct., at 2048 (Souter, J., dissenting)
(“The plaintiff must allege that the officers are acting in violation
of federal law . . .”).

The action proposed by the Attorney General which led to the
present case was to assert in a court of law a plausible, good-faith

argument regarding the interpretation of an Act of Congress.
Plaintiff contends, and the lower courts held, that this assertion
would have the practical effect of forcing them to forego certain
federal rights.’ But impact on the plaintiff is not the test. A legal
act is a legal act, and not a violation, even if it does have the effect
claimed. For example, a prosecutor who puts on a compelling
case of guilt may, as a practical matter, force a defendant to give
up his Fifth Amendment right and take the stand, but that effect
does not transform skilled advocacy into a constitutional violation.
See Williams v. Florida, 399 U. S. 78, 83-84 (1970). “Our
authorities do not impose a categorical ban on every governmental
action affecting the strategic decisions of an accused, including
decisions whether or not to exercise constitutional rights.” United
States v. Dunnigan, 507 U. S. 87, 96 (1993).

Young found the requisite violation in a stated intent to
commence prosecutions under an unconstitutional statute, even
though the constitutionality has not been previously determined.
See Young, supra, 209 U. S., at 160. That is something of a
stretch, but by this point it is well established in precedent. The
present question is whether that stretch should be further stretched
to cover a contention made in court where there is no question of
an unconstitutional statute or other illegality of the official’s
action. The answer to that question is also well established in
precedent. The answer is no.

Worcester County Trust Co. v. Riley, 302 U. S. 292 (1937)
involved the taxes on the estate of a decedent whose state of
domicile was disputed. Massachusetts and California both
claimed him and the right to tax the intangibles of his estate. /d.,
at 294. Plaintiff, the administrator, filed an interpleader, ibid.,
claiming that the effect of the state officials’ actions threatened to
deprive the estate of its federal right against double taxation. /d.,
at 297-298.

The Court unanimously held the action barred by the Eleventh
Amendment, distinguishing Young. First, the state officials were

_- 3. Actually, it is not the Attorney General's assertion but the possibility he may be
right that has this effect. If the Attorney General's position were patently
wrong, and certain to be rejected by the courts, its assertion would be of little
or no concern to plaintiffs.

simply and properly seeking a judicial determination of whether
their position was correct, an act well within their official duties.
Id., at 298-299. Second, unlike Young and its progeny, “the
present suit is not founded on the asserted unconstitutionality of
any state statute and the consequent want of lawful authority for
official action taken under it.” Jd., at 300.

These principles apply with full force to the present case. The
Attorney General seeks to enforce the single most important law
the state has: the law which defines and punishes murder. To this
end, he must defend against habeas corpus actions which seek to
overturn valid judgments. The defense of such cases and the
choice of arguments to present falls squarely within his constitu-
tional responsibilities. There is no basis for asserting that he lacks
authority for his actions or seeks to enforce an unconstitutional
Statute.

Worcester County remains good law today. Cory v. White,
457 U. S. 85, 86 (1982) involved a similar dispute regarding the
estate of Howard Hughes. The Court of Appeals thought “that
Edelman v. Jordan, 415 U. S. 651 (1974) had silently, but
effectively, overruled Worcester,” id., at 88. Edelman did no
such thing. /d., at 90.

“Neither did Edelman deal with a suit naming a state
officer as defendant, but not alleging a violation of either
federal or state law. Thus, there was no occasion in the
opinion to cite or discuss the unanimous opinion in Worcester
that the Eleventh Amendment bars suits against state officers
unless they are alleged to be acting contrary to federal law or
against the authority of state law. Edelman did not hold that
suits against state officers who are not alleged to be acting
against federal or state law are permissible under the Eleventh
Amencment if only prospective relief is sought. Whether or
not that would be the preferable rule, Edelman v. Jordan did
not adopt it.

“Furthermore, if that were to be the law, Worcester must
in major part be overruled. We are unwilling, however, to
overrule that decision and narrow the scope of the Eleventh
Amendment to the extent that action would entail.” /d., at 91
(emphasis added).

For the Attorney General of California to argue to a federal
court that California qualifies for Chapter 154 of Title 28, United
States Code is not, by any stretch of the imagination, a violation
of any law, state or federal. The Ex parte Young exception is
inapplicable. The Eleventh Amendment bars this action against
state officials acting in their official capacity.

In a habeas corpus action, the habeas petitioner does allege a
violation of federal law. He alleges that he is being held in
custody in violation of the Constitution, laws, or treaties of the
United States. The federal habeas court cannot grant relief on any
other basis. 28 U. S. C. §2254(a). Hence, habeas cases always
cualify for the Ex parte Young exception.

The underlying question need only be resolved in one such
case. If the habeas petitioner prevails and California is held not to
qualify, the final judgment in that case would settle the question,
as much as it can be settled, by stare decisis. See part III B, infra,
at 14-20. There is, therefore, no need to further stretch the already
strained fiction of Ex parte Young.

Il. The injunction issued in this case was an unprecedented,
improper use of judicial power.

Review on writ of certiorari is appropriate when “a United
States court of appeals . . . has so far departed from the accepted
and usual course of judicial proceedings, or sanctioned such a
departure by a lower court, as to call for an exercise of this Court's
supervisory power ....” Supreme Court Rule 10(a). For the
reasons that follow, amicus CJLF submits that the injunction
issued by the District Court, and its affirmance by the Court of
Appeals, are prime examples of such departure.

There is a large body of case law dealing with requests for
injunctions forbidding an official from commencing or prosecut-
ing a suit in another court on the ground that the statute or
ordinance sought to be enforced is unconstitutional. See, e.g.,
Younger v. Harris, 401 U. S. 37, 39 (1971). A smaller body of
case law deals with requests for injunctions to prevent a party or
witness from presenting evidence wrongfully obtained in another
court. These cases generally hold such injunctions to be improper.

See, e.g., Perez v. Ledesma, 401 U. S. 82, 84-85 (1971); Stefanelli
v. Minard, 342 U.S. 117, 122-123 (1951); People v. Gonzales, 20
Cal. 2d 165, 171, 124 P. 2d 44, 47 (1942) (Traynor, J.); but see
Rea v. United States, :*? U.S. 214, 217 (1956); see also Baker v.
General Motors Corp., 86 F. 3d 811, 818-820 (CA8 1996), cert.
granted No. 96-653 (argued Oct. 15, 1997).

The present case is a large step further removed. The state
officials have done nothing wrong. They are respondents in
actions commenced against them and have an honest, good-faith
argument to make on an unsettled question of law. Yet they are
forbidden to make it. Except for the other AEDPA cases, there
~ ; to be no precedent for such an injunction in American
w.

A. NAACP v. Meese.

The closest case amicus has found is NAACP v. Meese, 615
F. Supp. 200 (DC DC 1985). That case arose in the aftermath of
Firefighters Local Union No. 1784 v. Stotts, 467 U.S. 561 (1984),
a case involving racially-based layoffs by a fire department under
a consent decree. Attorney General Meese had “a far different and
broader interpretation” of Stotts than the NAACP, Meese, 615
F. Supp., at 201, so that organization sought an order

“enjoining the Attorney General and his subordinates from
reopening, causing to be reopened, or consenting to the
reopening of any decree in an action brought by the govern-
ment under Title VII of the Civil Rights Act of 1964, as
amended, on the basis that such decree contains goals,
timetables, numerical remedies, or other relief for persons not

4. Three other District Courts have issued such injunctions on the same point.

One has been reversed outright. Booth v. Maryland, 112 F. 3d 139, 146 (CA4
1997) (Eleventh Amendment). One case has been resolved without addressing
the injunction, Death Row Prisoners of Pennsylvania v. Ridge, 106 F. 3d 35,
36 (CA3 1997) (noting Eleventh Amendment problem; Commonwealth's
statement that Pennsylvania does not qualify is sufficient for underlying action
to be “resolved and terminated”), thus implying that the injunction was
unnecessary. The third is still pending. Hill v. Butterworth, 941 F. Supp. 1129
(ND Fla. 4996), appeal pending.

10

proven to be ‘actual victims’ of discrimination ....” Jbid.

(footnotes omitted).

The wisdom, restraint, and discretion exercised by Judge
Greene in NAACP v. Meese stands in sharp contrast to the attitude
displayed by the District Court and the Court of Appeals majority
in the present case.

“[T]wo fundamental principles of law so clearly stand as
obstacles to the grant of relief by the Court that none of the
other issues is open for consideration. Plaintiff's action must
fail (1) under the principle of the separation of powers, and (2)
because this Court lacks authority to interfere with or to seek
to guide litigation in other district courts throughout the
United States.” /d., at 202.

On the first point, Judge Greene noted that any attempt by the
judiciary to dictate what positions the executive could present to
the courts would be an interference with a duty expressly assigned
by the Constitution to the executive branch, to “take Care that the
Laws be faithfully executed.” Jbid. (quoting U. S. Const., Art. Il,
§ 3; United States v. Mendoza, 464 U.S. 154, 161 (1984); Buckley
v. Valeo, 424 U.S. 1, 138 (1976)).

Defendants in the present case have substantially the same
constitutional duty. Cal. Const., Art. V, §§ 1, 13. The structural
concerns are even greater in the present case, because the interfer-
ence breaches both the judicial/executive boundary and the
federal/state boundary. See Rizzo v. Goode, 423 U. S. 362, 378-
379 (1976).

The second reason for denying injunctive relief in NAACP v.
Meese was that “{a]ny such order would, of course, directly affect
the course of the litigation in [other] courts, and it would, indeed,
interfere directly with their jurisdiction over the lawsuits.” 615
F. Supp., at 204. Principles of comity and the availability of relief
in the other court required denial of the requested injunction. /d.,
at 205.

“One of the basic principles, one of the glories, of the
American system of justice is that the courthouse door is open
to everyone—the humblest citizen, the indigent, the convicted
felon, the illegal alien. To close that door to the Attorney
General by prohibiting him from filing in any federal court of

the land pleadings expressive of the position of the Executive
Branch with respect to Title VII lawsuits in which that Branch
has a legal interest would be an extraordinary step indeed.

“Not only is there no precedent in any of the decided cases
for such an invasion by a district court into the Executive's
prosecutorial discretion—or for the resulting interference with
the authority of other federal courts to deal with litigation
pending before them as they see fit—but basic jurisprudential
principles affirmatively prohibit such an action. It may well
be that plaintiffs are correct in their interpretation of Stotts,
but the Supreme Court's opinion in that case is sufficiently
Delphic that a contrary construction cannot with certainty be
ruled out.” /d., at 205-206 (footnotes omitted),

The statute at issue in the present case could also be described
as “Delphic,” or in even less charitable terms. See Lindh v.
Murphy, 138 L. Ed. 2d 481, 494, 117 S. Ct. 2059, 2068 (1997).
The terms for states to qualify for Chapter 154 are well within the
bounds of reasonable disagreement among lawyers and judges.
The fact that Congress took care to include an express retroactivity
clause in Chapter 154, see id., at 488-489, 117 S. Ct., at 2063,
indicates that Congress thought some states would qualify based
on existing systems, and if California does not it is difficult to see
that any state does.

Although no opinion of this Court comes as close to the
present case as NAACP vy. Meese, supra, the elements of that
decision can be found in numerous cases. These cases establish
that a court of equity should generally refrain from interfering with
either the discretionary acts of the executive or with the progress
of a case properly before another court.

B. Interference with Executive Discretion.

The reluctance of courts of equity to interfere with discretion-
ary acts of the executive goes back to the earliest cases. In
Marbury v. Madison, | Cranch 137, 170-171 (1803), Chief Justice
Marshall noted that the writ of mandamus would not lie if the act
sought was discretionary with the executive officer. In this sense,
mandamus and injunction are “somewhat correlative,” Board of
Liquidation v. McComb, 92 U.S. 531, 541 (1876), and the same
rule applies.

12

“Caution and reluctance there must be ‘n special measure
where relief, if granted, is an interference by the process of
injunction with the activities of state officers discharging in
good faith their supposed official duties. In such circum-
stances this court has said that an injunction ought not to issue
‘unless in a case reasonably free from doubt.’ Massachusetts
State Grange v. Benton, 272 U. S. 525, 527. The rule has
been characterized as an ‘important’ one, to be ‘very strictly
observed.’ 272 U. S., at 527, 529.” Hawks v. Hamill, 288
U. S. 52, 60 (1933).

Indeed, even Ex parte Young, 209 U. S. 123 (1908) reiterated
the long-standing rule on the impropriety of restraining discretion-
ary executive acts. /d., at 158-159. To justify an injunction in the
case before it, Young held that there is no discretion to enforce a
statute which is unconstitutional and void. /bid. The present case,
by contrast, involves a statute which is clearly constitutional, and
the only issue is its interpretation. The decision as to which good-
faith arguments to present to courts of law goes to the very core of
the discretionary responsibility of the state’s chief attorney.

Even within a unitary system, courts should avoid interference
with a decision vested in the executive branch. Rizzo v. Goode,
423 U. S. 362, 378-379 (1976). When the interference crosses the
federal/state line, this principle applies with even greater force.
Id., at 379. This principle was ignored in the present case.

C. Interference with Other Courts.

Most of the cases on interference with other courts deal with
federal injunctions against state court proceedings. This is
probably the result of the relative frequency of the requests for
such relief. Few litigants are motivated to ask one federal court to
enjoin proceedings in another. Even so, the Younger v. Harris,
401 U. S. 37 (1971) line of cases sheds light on the present
problem, because that doctrine is based on general principles of
equity as well as federalism.

The general rule of equity is an old one. “There can be no
reason or propriety in appealing to a court of equity to restrain
proceedings that are being conducted in other courts, competent
to construe the statutes under which they act, and to decide every
question that may arise in the course of the proceeding.” Wilson

13

v. Lambert, 168 U. S. 611, 618 (1898). The Younger line is based
on this principle, as well as on federal/state comity. Ohio Civil
Rights Comm'n vy. Dayton Christian Schools, Inc., 477 U. S. 619,
627 (1986). It is not limited to criminal proceedings. Jbid.

The District Court in the present case acknowledged that its
“decision may constrain the ability of other co-equal district court
judges to decide the issue differently.” Ashmus v. Calderon, 935
F. Supp. 1048, 1068, App. to Pet. for Cert. 59a-60a (ND Cal.
1997). Yet it considered this question only under the discussion
of declaratory relief and class certification and did not reconsider
it when discussing the vastly greater intrusion of injunction. Cf.
id., at 1075-1076, App. to Pet. for Cert. 77a-78a. That is where
the true interference lies, and that is where centuries-old principles
of equity caution restraint. Instead of correcting this error, the
Court of Appeals brushed off the declaratory relief/injunction
distinction in two sentences. App. to Pet. for Cert. 20a.

D. Steffel v. Thompson.

In deciding that the plaintiffs had stated a cause of action, the
District Court relied heavily on Steffel v. Thompson, 415 U.S. 452
(1974). Ashmus, 935 F. Supp., at 1062-1063, App. to Pet. for
Cert. 44a-48a. On the question of whether an injunction is proper,
however, Steffel points in exactly the opposite direction. The
essence of that case is that declaratory relief, and not injunction,
is the preferred way to resolve these kinds of uncertainties in the
law.

Tracing the history of the Declaratory Judgment Act, Steffel
found that “Congress plainly intended declaratory relief to act as
an alternative to the strong medicine of the injunction ....” 415
U. S., at 466 (emphasis added). Steffel also relied on the earlier
decision in Zwickler v. Koota, 389 U. S. 241, 254 (1967), which
held that it was “error” to consider the two forms of relief “as a
single question.” Steffel, 415 U. S., at 468. Such an approach
“would defy Congress’ intent to make declaratory relief available
in cases where an injunction would be inappropriate.” Jd., at 471.

The present case is the converse of Steffel. Both courts
below found that declaratory relief was appropriate and then
blithely tagged on an unprecedented, massively intrusive injunc-
tion without pausing to consider the weighty prudential consider-

14

ations that ought to go into such a decision. Under Steffel, this is
error.

III. Injunctive relief in the present case was
neither necessary nor sufficient to resolve the underlying
uncertainty.

The principal requirement for a preliminary injunction, as
distinct from other forms of relief, is a showing of irreparable
injury. See Steffel v. Thompson, 415 U. S. 452, 471-472 (1974).
Naturally, the injury must be one that the injunction is capable of
preventing, or else there would be no point in issuing it. An
injunction should only issue, then, when it is both necessary and
effective. In the present case it is neither.

A. Unnecessary Intrusion.

In part Il, we described how this injunction is a massive
intrusion on the constitutional responsibilities of state officers. In
this part, we will explain why it was unnecessary.

The Antiterrorism and Effective Death Penalty Act contains
two limitations on the filing of habeas corpus petitions. New
subdivision (d) of 28 U. S. C. §2244 provides:

“(d)(1) A 1-year period of limitation shall apply to an applica-

tion for a writ of habeas corpus by a person in custody

pursuant to the judgment of a State court. The limitation
period shall run from the latest of—

“(A) the date on which the judgment became final by
the conclusion of direct review or the expiration of the
time for seeking such review;

“(B) the date on which the impediment to filing an
application created by State action in violation of the
Constitution or laws of the United States is removed, if the
applicant was prevented from filing by such State action;

“(C) the date on which the constitutional right asserted
was initially recognized by the Supreme Court, if the right
has been newly recognized by the Supreme Court and

15

made retroactively applicable to cases on collateral
review; or

“(D) the date on which the factual predicate of the
claim or claims presented could have been discovered
through the exercise of due diligence.

“(2) The time during which a properly filed application for
State post-conviction or other collateral review with respect to
the pertinent judgment or claim is pending shall not be
counted toward any period of limitation under this subsec-
tion.”

For states qualifying for chapter 154, new section 2263
provides this limitation:

“(a) Any application under this chapter for habeas corpus
relief under section 2254 must be filed in the appropriate
district court not later than 180 days after final State court
affirmance of the conviction and sentence on direct review or
the expiration of the time for seeking such review.

“(b) The time requirements established by subsection (a)
shall be tolled—

“(1) from the date that a petition for certiorari is
filed in the Supreme Court until the date of final
disposition of the petition if a State prisoner files the
petition to secure review by the Supreme Court of the
affirmance of a capital sentence on direct review by
the court of last resort of the State or other final State
court decision on direct review;

“(2) from the date on which the first petition for
post-conviction review or other collateral relief is
filed until the final State court disposition of such
petition; and

“(3) during an additional period not to exceed 30
days, if—

“(A) a motion for an extension of time is filed
in the Federal district court that would have
jurisdiction over the case upon the filing of a
habeas corpus application under section 2254; and

16

“(B) a showing of good cause is made for the
failure to file the habeas corpus application within
the time period established by this section.

In addition to the length, six months versus a year, the
limitations differ in their treatment of the time to petition for
certiorari. In section 2263(a), the clock starts on final affirmance
in state court, but then is tolled under subdivision (b)(1) when the
certiorari petition is actually filed. A petitioner who used his full
90 days to prepare the certiorari petition would have used half of
his 180 days. Of course, since certiorari is not part of the exhaus-
tion requirement, Stone v. Powell, 428 U. S. 465, 495, n. 38
(1976), there is no reason the certiorari and habeas petitions
cannot be prepared at the same time.

Section 2244(d)(1)(A) starts the clock at the conclusion of
“direct review” without specifying the state court decision. This
omission, plus the reference to the judgment becoming final,
appears to be an adoption of the rule for Teague finality, i.e.,
denial of certiorari by this Court or the expiration of time to seek
it. Cf. Caspari v. Bohlen, 510 U. S. 383, 390-391 (1994). Thus,
the noncapital petitioner, or the capital petitioner in a nonqualify-
ing state, could have up to nine months longer to file his petition.”

Congress had a good reason for creating different rules.
Habeas petitioners have no constitutional right to counsel in state
habeas, not even in capital cases. Coleman v. Thompson, 501
U. S. 722, 756-757 (1991). Chapter 154 only applies to inmates
who have been provided counsel on state habeas. The fact that the
petitioner has already had one attorney-prepared habeas petition
makes an enormous difference in preparing the second.

In a traditional post-conviction review system, where habeas
follows direct appeal and where a different attorney must be
appointed for that procedure, see 28 U. S. C. §2261(d), an
unrepresented inmate’s time under section 2263 could conceivably
be running while he awaited appointment of state habeas counsel.

5. The difference will be smaller if a state habeas petition is pending during all or
part of the gap between the decision on direct appeal and the filing of the
certiorari petition. See 28 U. S. C. § 2263(b)(2) (tolling during pendency of
state habeas).

17

That possibility need not concern the Court in this case, however,
as California seeks only to qualify under “unitary review.”

As the District Court recognized, a system of “unitary review”
does not necessarily mean a single consolidated proceeding.
Under California’s present system, state habeas is conducted
during the pendency of the direct appeal, and this is sufficient to
constitute “unitary review” within the meaning of 28 U. S. C.
§ 2265. Ashmus v. Calderon, 935 F. Supp. 1048, 1070, App. to
Pet. for Cert. 65a (ND Cal. 1997). The attorney appointed to
represent the defendant on direct appeal is also responsible for the
habeas petition, and it is due 90 days after completion of the
appellate briefing. See California Supreme Court Policies
Regarding Cases Arising from Judgments of Death, App. to Pet.
for Cert. 94a.

Under this system, then, every death row inmate has an
attorney appointed to represent him on state habeas before the
clock ever begins to run under 28 U. S. C. §2263. If the attorney
files the petition within the required time, again before the clock
begins, the clock will not start until the California Supreme Court
has decided that petition.

The injury cited by the Court of Appeals is the possibility of
an unrepresented petitioner being forced to file a “bare bones”
petition in order to meet the limitation period of section 2263.°
App. to Pet. for Cert. 10a. This statement overlooks the fact that
federal habeas for California capital prisoners reviews fully
completed litigation. Before the clock ever starts, petitioner has
already had state habeas and appellate counsel appointed. He has
already had an opportunity to present every cognizable claim to a
competent court. He has already had a decision on them. The
claims are set forth in the state pleadings and need only be recast
into the form of a federal petition. Six months is more than
enough time for the federal court to appoint counsel and for that
counsel to file a meaty petition, not a “bare bones” one.

6. This statement appears in the Eleventh Amendment analysis. The court's two-
sentence discussion of propriety of injunctive relief makes no mention of the
irreparable injury requirement. See App. to Pet. for Cert. | 4a.

18

If, for any reason, counsel could not be appointed within six
months, reasonable accommodation for an indigent, unrepresented
petitioner would seem to allow him to simply attach the state
pleadings and assert all federal claims in them. Claims omitted
from the appeal and first state habeas are generally procedurally
barred. See Jn re Clark, 5 Cal. 4th 750, 765, 770, 855 P. 2d 729,
738 (1993); Deere v. Calderon, 890 F. Supp. 893, 895 (CD Cal.
1995) (Clark rule is enforceable bar).’ The few additional claims,
if any, that would be cognizable on federal habeas can be added
by amendment to the petition.

The Court of Appeals noted that 28 U. S. C. § 2266(b)(3)(B)
in Chapter 154 limits amendments to the petition, and that a
District Court which holds that California qualifies for Chapter
154 might not allow amendment. App. to Pet. for Cert. 16a. Such
a decision, if erroneous, is not irreparable. If the ultimate decision
is that California does not qualify, a holding under Chapter 154
would be reversed. If the ultimate reso! ution is that California
does qualify, the petitioner has not lost anything to which he was
entitled.

Thus, even if the Attorney General’s so-called “threats” were
the source of uncertainty, the danger of irremediable injury
flowing from that uncertainty is exaggerated in the opinions
below. The massive, unprecedented intrusion of the injunction
issued in this case was unnecessary and hence improper.

B. An Ineffective Solution.

The uncertainty in this case does not spring from any asser-
tions by the state officials. The uncertainty comes from the law
itself. The preliminary injunction issued in this case, therefore,
does nothing to resolve the underlying question.

If the state qualifies for Chapter 154 of Title 28, then the
habeas petition must be filed within 180 days, unless the criteria

7. There is contrary (and, amicus believes, wrongly decided) Ninth Circuit
authority for pre-Clark cases. See Morales v. Calderon, 85 F. 3d 1387, 1393
(1996), cert. denied 136 L. Ed. 2d 391, 117 S. Ct. 500 (1996). Most, if not all,
such cases have since met or defaulted the one-year limitation of 28 U. S. C.
§ 2244(d). There is clearly no need for injunctive relief in such cases, since the
“gap” period where section 2263 makes a difference is already past.

19

for successive petitions are met. 28 U. S. C. §§ 2263, 2262(b)(1),
2262(c). This rule is undeniably mandatory. By declaring that
“no Federal court thereafter shall have the authority to enter a stay
of execution,” id., at §2262(c) (emphasis added), Congress has
made clear that these limits are jurisdictional.

A preliminary injunction, even when affirmed on appeal, is
not res judicata. See 16B C. Wright, A. Miller, & E. Cooper,
Federal Practice & Procedure § 4009, p. 157 (2d ed. 1996). Even
a “permanent” injunction can be lifted if the precedent on which
it is based “is no longer good law.” Agostini v. Felton, 138
L. Ed. 2d 391, 410, 117 S. Ct. 1997, 2016 (1997). Notwith-
standing the injunction issued in this case, then, if this Court or the
Ninth Circuit en banc should later decide that California does
qualify for Chapter 154, all pending petitions filed out of time
would have to be dismissed, unless they qualify for an exception.

Petitioners in such cases might argue that the state had
defaulted the limitation defense by not raising it in the answers to
their respective petitions. A more egregious denial of due process
of law could scarcely be imagined than to enjoin a party from
asserting a valid defense and then declare him in default for
obeying the injunction. The people, as well as the defendant, are
entitled to due process of law. Stein v. New York, 346 U. S. 156,
197 (1953), overruled on other grounds in Jackson v. Denno, 378
U. S. 368, 391 (1964).

If California does, in reality, qualify, then it has a right granted
by Congress to have the issues joined within 180 days. For a court
to strip the state of its Congressionally conferred rights through a
forced default would raise grave questions of separation of
powers. The state must be permitted to assert its valid defense at
the first opportunity.

The uncertainty can only be resolved by a final judgment. If
the Fourth Circuit is right, the issue must be resolved within a
habeas proceeding. Booth v. Maryland, 112 F. 3d 139, 145-146
(CA4 1997), cert. pending No. 97-5623. Federal courts can issue
declaratory judgments in cases within their jurisdiction. 28
U.S.C. §2201.

Unlike a preliminary injunction, a declaratory judgment gives
relief only when it is final. Doran v. Salem Inn, Inc., 422 U. S.

922, 931 (1975). In the context of the present case, though, the
interim relief of the injunction is illusory. See Plaut v. Spendthrift
Farm, Inc., 514 U.S. 211, 214 (1995) (new precedent on statute
of limitation resulted in dismissal of pending cases).

The declaratory relief portion of the District Court’s decision
is not before this Court. The Court of Appeals held it had no
jurisdiction over that aspect of the case, because it was not yet
final. App. to Pet. for Cert. 8a.* Petitioners have not challenged
that holding. The only issues, then, are the jurisdiction to issue the
injunctions and the propriety of issuing it. The injunction in this
case was unprecedented, intrusive, unnecessary, ineffective, and
improper. Its issuance was a gross abuse of discretion, calling for
an exercise of this Court’s supervisory power.

CONCLUSION
The petition for writ of certiorari should be granted.

November, 1997
Respectfully submitted,
KENT S. SCHEIDEGGER

Attorney for Amicus Curiae
Criminal Justice Legal Foundation

8. To expedite resotution of this issue, the District Court could certify it for
appeal. 28 U.S. C. § 1292(b).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0119%3A06. Public record. Not legal advice.