Motion — Smith v. Robbins

A : REVATOEMS PP Supreme Court, U.S.

J DISTRIBUTED TAIGHNiL (4) FILED

No. 98-1037 JUL 29 1999

IN THE SUPREME COURT OF THE UNITED a CLERK

OCTOBER TERM, 1998

GEORGE SMITH, Warden,

Petitioner,

Vv.

LEE ROBBINS,

Respondent.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

—_—_—_—_—_—_—_—_—_———————====_==_==Da2zwana=

PETITIONER'S REPLY TO RESPONDENT'S OPPOSITION TO MOTION

TO STRIKE EXTRA-RECORD MATERIALS

BILL LOCKYER

Attorney General of

the State of California

DAVID P. DRULINER

Chief Assistant Attorney General

CAROL WENDELIN POLLACK

Senior Assistant Attorney General

DONALD E. DE NICOLA

Deputy Attorney General

CAROL FREDERICK JORSTAD

Deputy Attorney General

Cal. State Bar No. 68906

Counsel of Record

300 South Spring St.

Los Angeles, CA 90013

Telephone: (213) 897-2277

Fax: (213) 897-2263

Counsel for Petitioner

ot

INTRODUCTION

ARGUMENT

I.

II.

Itt.

THIS COURT SHOULD EXERCISE ITS DISCRETION TO

DENY ROBBINS'S REQUEST FOR JUDICIAL NOTICE

ROBBINS HAS NOT FAIRLY PRESENTED THE STATE

SUPREME COURT WITH THE DOCUMENTS HE SEEKS TO

INTRODUCE IN THIS COURT

THE DOCUMENTS ARE IRRELEVANT OR CUMULATIVE TO

ANY DISPUTED ISSUE PROPERLY BEFORE THE COURT

A. The felony complaint for extradition.

B. The motion for appointment of advisory

counsel.

Cc. The petition for writ of

mandate/prohibition

D. The California Court of Appeal's appointment

of David Goodwin as counsel on appeal.

THE CONTENTS OF THE APPENDIX ARE TARDY UNDER

RULE 26 OF THE RULES OF THE SUPREME COURT

THE TAPE OF THE NINTH CIRCUIT ARGUMENT IS

IRRELEVANT AND THE TRANSCRIPT INACCURATE

CONCLUSION

11

12

ii

Cases

Aiken v. Spaulding,

841 F.2d 881 (9th Cir. 1988)

Barilla v. Ervin,

886 F.2d 1514 (9th Cir. 1989)

Brown v. Piper,

91 U.S. 37 (1875)

Coleman v. Alabama,

399 U.S. 1 (1970)

Duncan v. Henry,

513 U.S. 364 (1995)

Garlotte v. Fordice,

515 U.S. 39 (1995)

Nevius v. Sumner,

852 F.2d 463 (9th Cir. 1988)

Osborne v. Gray,

241 U.S. 16 (1916)

People v. Pompa-Ortiz,

27 Cal. 3d 519,

165 Cal. Rptr. 851 (1980)

Ross v. Kemp,

785 F.2d 1467 (llth Cir. 1986)

Vasquez v. Hillery,

474 U.S. 254,

106 S. Ct. 617 (1986)

Walker v. Johnston,

312 U.S. 275 (1941)

Court Rules

Fed. R. Evid. 201(b)

10

10

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1998

No. 98-1037

oo llEEEEEeSEESESaSESE=—aESEN™l™N™E™E™O™EEN™E_™™_N_™_“__O“O“O“ON““E“_“

GEORGE SMITH,

Petitioner,

Vv.

LEE ROBBINS,

Respondent.

Petitioner GEORGE SMITH, Warden, hereby submits his

reply to Robbins'’s opposition to the motion to strike 1) the

extra-record materials Robbins has appended to his merits

brief in opposition, and 2) the tape and transcript of the

argument in the court of appeals. The contents of the

appendix have never been presented to the California Supreme

Court and are thus unexhausted. These outside-the-record

materials are also irrelevant or cumulative, and they are

tardy under this Court's Rules. Rule 26, Rules of the Supreme

Court of the United guenes. The tape of the Ninth Circuit is

irrelevant, and the transcript is both irrelevant and

inaccurate. In attempting to improvise a record at the last

possible moment, Robbins betrays an utter disregard for

settled appellate rules and procedures. His effort should be

rebuffed.

I.

THIS COURT SHOULD EXERCISE ITS DISCRETION TO

DENY ROBBINS'S REQUEST FOR JUDICIAL NOTICE

Although this Court has the discretion to grant a motion

for judicial notice of extra-record facts, it should not do so

unless the facts are "not subject to reasonable dispute”

because they are either generally known or capable of ready

and accurate determination. See Fed. R. Evid. 201(b). "Only

in extraordinary situations should the record on appeal be

supplemented with material that was not before the district

court.” Barilla v. Ervin, 886 F.2d 1514, 1521 n.7 (9th Cir.

1989); Ross v. Kemp, 785 F.2d 1467, 1474 (lith Cir. 1986).

The power to judicially notice facts outside the record

is to be exercised by courts with caution. Care must

be taken that the requisite notoriety exists. Every

reasonable doubt upon the subject should be resolved

promptly in the negative.

Brown v. Piper, 91 U.S. 37, 43 (1875); see also Osborne v.

Gray, 241 U.S. 16, 21 (1916) (Court declares itself “unable”

to remedy a deficiency in the evidence by taking judicial

notice of unproven facts).

Robbins has not presented an “extraordinary situation” to

the Court to justify his request for judicial notice. On the

contrary, his rather mundane explanation is that he did not

get around to examining the state-court files until after he

read the Warden's merits brief in this Court. Opp. 14.

Counsel's failure to consult and present these materials years

ago does not constitute an “extraordinary situation”

warranting judicial notice. Robbins's request should be

denied.

Robbins contends that "it speaks volumes that the Warden's

motion to strike does not even address the question whether

judicial notice of the documents and the tape is appropriate.”

Opp. 2. The Warden did not address judicial notice in his

motion, because he relied on Robbins's written representation

to Chief Deputy Clerk Francis Lorson that he was withdrawing

his request for judicial notice and asking Mr. Lorson instead

to “simply lodge [the documents] with the Court.” Opp. Ex. B.

That representation seems to have fallen by the wayside.

There should be no misunderstanding: the Warden objects to

this Court's considering any materials which are outside the

record, regardless of the means by which Robbins attempts to

import them into the case -- a request for judicial notice, a

request for lodging, or an appendix to his brief.

To exhaust state remedies, a petitioner must recite both

the factual and federal constitutional bases for his claims in

the state supreme court, in order to give the state the

opportunity to correct alleged constitutional violations.

Duncan v. Henry, 513 U.S. 364, 365-66 (1995).

Searching for a loophole in the exhaustion requirement,

Robbins advances the notion that these materials need not be

exhausted for this Court to take judicial notice of them.

Opp. 7. He attempts to justify his delinquency in providing

the documents by blaming the Warden for a merits brief which

contained the strident argument that, aside from the

colloquy between Robbins and the trial judge, Robbins

had never specifically objected to the state of the

jail law library.

Id. Robbins distorts the facts in two significant respects.

First, he cannot colorably imply that this argument was first

presented in the Warden's merits brief in this Court. In the

Ninth Circuit, the Warden raised failure to exhaust in his

opening brief, his reply brief, and his petition for

rehearing. WOB9 38-39; WRB9 26-27; PR 9-12.** Second, the

1. "WOB9S" refers to the Warden's Opening Brief in the

Ninth Circuit. "WRB9” refers to the Warden's Reply Brief in

that court. "PR" refers to the Warden's Petition For

Rehearing in the Ninth Circuit.

—™

b

Warden argued in the Ninth Circuit, without contradiction from

Robbins, that the trial judge's warnings about the dangers of

pro per representation were not evidence and that Robbins

failed to object to the law library in any state court. WOB9

40-41; WRBS 28; PR 11-12. In other words, the Warden has

consistently maintained that Robbins never interposed a state-

court objection to the law library and never adduced any

evidence in support of this claim at any time, in any state

court. Similarly, Robbins never asserted yn any state court

that his appellate counsel was ineffective for failing to

2. In the district court, the Warden properly conceded

exhaustion in his initial return to Robbins's pro se petition.

In a supplemental petition filed nearly a year later by

counsel, Robbins laid out a laundry list of claims he said

state counsel should have raised on appeal. USDC Supp. Pet.

24-34. The law library was mentioned, not as an independent

claim, but as an example in support of Robbins’s complaint

that he had not

been given a sufficient opportunity to prepare his

defense once he was forced to proceed pro per. As

stated above, Robbins was given only $500 to

investigate this matter, even though he was standing

trial for first degree murder. (CT, 149.) He was also

relegated to a county jail law library which the trial

judge knew had been improperly maintained, since the

pages of all the helpful cases had been torn out of the

books. (AT, 19:13 - 20:11.)

USDC Supp. Pet. 28-29. The pages of the augmented transcript

to which Robbins cited did not contain any evidence of the

library's deficiency, only the judge's warnings about the

dangers of waiving counsel, including a warning about the

difficulties Robbins might encounter in using the library.

See J.A. 255-57. Nonetheless, the district court seized on

the law library example and transformed it into an “arguable

issue.” J.A. 49-50. In the Ninth Circuit, the Warden

complained repeatedly that the issue had never been presented

to the California Supreme Court and was therefore unexhausted,

to no avail.

raise the deficiencies in the law library. The claim itself

is unexhausted.

Evidence that arguably improves the evidentiary basis for

a federal claim renders the claim unexhausted if it has never

been presented to the state courts. Aiken v. Spaulding, 841

F.2d 881, 883 (9th Cir. 1988); see also Nevius v. Sumner, 852

F.2d 463, 470 (9th Cir. 1988). This tardily-presented

evidence submitted to bolster an unexhausted claim is

therefore also unexhausted. Robbins should be foreclosed from

presenting the evidence here.

Robbins cites Vasquez v. Hillery, 474 U.S. 254, 260, 106

S. Ct. 617 (1986), for the proposition that, even though he

never presented the four appendix documents to the California

Supreme Court, they are properly considered because they do

not fundamentally alter the legal claims. Opp. 9. Hillery is

inapposite. Hillery had presented his federal challenge at

every level in the state courts. Hillery, 474 U.S. at 256.

This Court limited itself to ruling on additional facts

presented to the district court at the district court's

request and found that the exhaustion doctrine was not

violated “when the prisoner [had] presented the substance of

his claim to the state courts." Id. at 257-58 (emphasis

added) . The Court stated, "We have never held that

presentation of additional facts to the district court,

pursuant to that court's directions, evades the exhaustion

requirement. ..." Id. at 257-258. As distinguished from

the instant case, all of the operative facts in Hillery had

4

been presented to the state court, the new evidence in support

of those facts thus did not fundamentally alter the claim so

as to implicate the doctrine of exhaustion, and the district

court had requested the additional information. Hillery is

inapposite.

rir.

THE DOCUMENTS ARE IRRELEVANT OR CUMULATIVE TO

ANY DISPUTED ISSUE PROPERLY BEFORE THE COURT

The documents Robbins presents in his appendix are

either irrelevant or cumulative to any disputed issue properly

before this Court.

A. The felony complaint for extradition. App. 1-4."

There is no controversy about the fact that a complaint was

issued, that Robbins was arrested outside the state, and that

he was returned to California. Robbins suggests that the

complaint should have been included in the appellate record

and presented to the state reviewing court, but he never

explains how it could possibly have mattered. Opp. 5.

In California, a felony complaint is filed in municipal

court and pertains only to the preliminary hearing. Cal. Pen.

Code §§ 949, 959. Under state law, the denial of rights at

the preliminary hearing in municipal court is harmless, unless

the defendant can show either that fe court did not have

jurisdiction or that an error in the procedure deprived him of

4

3. “App.” refers to the appendix to Robbins's opposition

brief on the merits.

ns

7 ten Hr -.

a fair trial in superior court. People v. Pompa-Ortiz, 27

Cal. 3d 519, 529, 165 Cal. Rptr. 851 (1980); see also Coleman

v. Alabama, 399 U.S. 1, 8 & 8 n.3 (1970).

Robbins does not suggest that he can meet the stringent

requirements of Pompa-Ortiz. The complaint does not relate to

any of the allegedly arguable issues Robbins has presented in

this Court or suggest an argument that state counsel should

have presented to the state reviewing court. It is irrelevant

to any issue in dispute.

B. The motion for appointment of advisory counsel.

App. 5-15.

In a motion for advisory counsel, Robbins, almost as an

aside, included a single sentence relating to the law library,

stating that it had been found inadequate in 1975 and had not

been updated since then. App. 7. In that motion, Robbins

cited a 1975 California case for the 1975 finding of

inadequacy, but cited nothing for the proposition that the

library had not been updated. Id. More importantly, he did

not state that he had been having problems with the library.

Id. Despite his failure to bring this document to any state

or federal court's attention during the many years this matter

has been in litigation, Robbins now attempts to use it to

bolster his unexhausted claim that the library was

constitutionally defective. The document relates to an issue

never presented to the California Supreme Court: appellate

counsel's failure to raise the inadequacy of the law

library.* Because the law library issue itself is not

properly before this Court, Robbins'’s trial-court motion for

appointment of advisory counsel, which is intended to

supplement the library issue, is irrelevant.

C. The petition for writ of mandate/prohibition. App. 16-

23.

Robbins faults state counsel for failing to include

this petition in the appellate record, suggesting that it

might have demonstrated Robbins's "persistent efforts to

secure advisory counsel.” Opp. 6. Evidence properly included

in the joint appendix abundantly makes that point without

resort to extra-record materials. Robbins's persistence is

simply not at issue. His right to advisory counsel is. He

had none. The petition is cumulative.

D. The California Court of Appeal's appointment of David

Goodwin as counsel on appeal. App. 24-25.

Robbins cites to this order to support his assertion

that David Goodwin was appointed to represent him on appeal.

Opp. 6, 8. This is not exactly news, and it does not require

fresh evidence. Mr. Goodwin's no-merit brief and penalty-of-

4. Robbins's federal counsel attack state appellate

counsel for "inexplicably and improperly fail[ing] to include

[this issue] in the record on appeal.” Opp. 19. Their

criticism is ironic, since they did not raise the issue in the

district court. The first time state appellate counsel was

faulted for failing to raise the law library's deficiencies

was when United States District Judge King raised the issue

sua sponte in his opinion. J.A. 49-51.

10

perjury declarations, as well as the state appellate court's

opinion naming him as counsel, are before this Court. J.A.

26-37, 38-39, 43. The formal order appointing him has no

significance.

Iv.

THE CONTENTS OF THE APPENDIX ARE TARDY UNDER

RULE 26 OF THE RULES OF THE SUPREME COURT

Robbins should have proposed the documents he has provided

in the appendix to his brief for inclusion in the joint

appendix. Robbins's admitted delay in exploring the superior

court file is neither justified nor excused by his claim that

the Warden's "strident" opening-brief argument prompted him to

examine the trial file for the first time. Opp. 14.

Trying mightily to shift the burden, Robbins also suggests

that the state-court record was as available to the Warden as

it was to him. Opp. 14 n. 4. On federal habeas corpus, the

prisoner has the burden of proof to establish his

constitutional claims. Garlotte v. Fordice, 515 U.S. 39, 46

(1995); Walker v. Johnston, 312 U.S. 275, 286 (1941). The

Warden had no duty to present extra-record materials to the

federal court. Contrary to Robbins's claim, Robbins's efforts

have not been "diligent, though unavailing[.]" Opp. 13. He

has displayed no diligence at all. His laxity should not be

rewarded.

11

Vv.

THE TAPE OF THE NINTH CIRCUIT ARGUMENT IS

IRRELEVANT AND THE TRANSCRIPT INACCURATE

The tape of the Court of Appeals argument which Robbins has

provided is unauthenticated and uncertified. In addition, it

is frequently inaudible. Because of the audibility problems,

it is sometimes difficult to follow and potentially

misleading. It is also irrelevant to the issues in this case.

The transcript is, even on a superficial comparison with

the tape, inaccurate. Robbins states that he has offered it

"as an aid to this Court,” Opp. 15, but an inaccurate

transcription is of no assistance to the Court. Robbins

tacitly admits the inaccuracies when he suggests that he "did

his best in transcribing the tape. If the Warden believes

that the transcript contains errors, he can file those

corrections with this Court ...." Opp. 15. Once again,

Robbins misapprehends the allocation of responsibilities. The

Warden has no duty to correct an unauthenticated, inaccurate,

irrelevant, untimely document which is not properly before

this Court. Robbins's request to lodge the tape and

transcript of the Ninth Circuit argument should be denied.

12

For the stated reasons, petitioner respectfully

requests that the Court deny Robbins's requests for judicial

notice and lodging and strike Appendix A and all references to

these belatedly-offered extra-record materials in Robbins's

merits brief, as well as the tape and transcript of the Ninth

Circuit argument.

Dated: July 20, 1999.

Respectfully submitted,

BILL LOCKYER

Attorney General

DAVID P. DRULINER

Chief Assistant Attorney General

CAROL WENDELIN POLLACK

Senior Assistant Attorney General

DONALD E. DE NICOLA

Deputy Attorney General

Carat. 4. Qpratnn

CAROL FREDERICK JORSTAD

Deputy Attorney General

Counsel of Record

Counsel for Petitioner

CFJ:gr

LA1999US0001