Opposition Brief — Woodford v. Garceau

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No. 01-1862

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 2001

JEANNE WOODFORD, Petitioner,

v.

ROBERT FREDERICK GARCEAU, Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES SUPREME COURT

RESPONDENT’S MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS

DEATH PENALTY CASE

LYNNE S. COFFIN*

STATE PUBLIC DEFENDER

FOR THE STATE OF CALIFORNIA

221 Main Street, 10" Floor

San Francisco, CA 94105

(415) 904-5600

DENISE KENDALL

775 East Blithdale, No. 530

Mill Valley, CA 94941

(415) 384-0281

*Counsel of Record for Respondent

ROBERT FREDICK GARCEAU

ae

l 2

represent respondent under 21 USC § 848 (q)(4).

No. 01-1862

Counsel of record, Lynne S. Coffin, was substituted for the California Appellate

IN THE SUPREME COURT OF THE UNITED STATES . Project as counsel by the United States District Court for the Eastern District of California

OCTOBER TERM, 2001 as counsel for Respondent on October 13, 1995.

JEANNE WOODFORD, Petitioner, DATED: _*/ 23/0

v.

ROBERT FREDERICK GARCEAU, Respondent. Respectfully submitted,

ON PETITION FOR A WRIT OF CERTIORARI LYNNE S. COFFIN*

STATE PUBLIC DEFENDER

TO THE UNITED STATES SUPREME COURT FOR THE STATE OF CALIFORNIA

; 221 Main Street, 10" Floor

7 San Francisco, CA 94105

RESPONDENT’S MOTION (415) 904-5600

FOR LEAVE TO PROCEED IN FORMA PAUPERIS DENISE KENDALL

775 East Blithdale, No. 530

DEATH PENALTY CASE : Mill Valley, CA 94941

(415) 384-0281

Pursuant to United States Supreme Court Rule 39, Respondent Robert Frederick BY:

SH KENDALL

Garceau (“Respondent”) hereby respectfully seeks leave to file his Brief in Opposition to

*Counsel of Record for Respondent

the instant Petition for Writ of Certiorari without prepayment of costs, and to proceed in ROBERT FREDICK GARCEAU

this matter in forma pauperis.

Respondent is an inmate in the California State Prison at San Quentin. In an Order

filed June 26, 1995, the United States District Court for the Eastern District of California

appointed Denise Kendall, Esq. and the California Appellate Project as co-counsel to

No. 01-1862

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 2001

JEANNE WOODFORD, Petitioner,

v.

ROBERT FREDERICK GARCEAU, Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEAL FOR THE NINTH CIRCUIT

RESPONDENT’S BRIEF IN OPPOSITION

DEATH PENALTY CASE

LYNNE S. COFFIN*

STATE PUBLIC DEFENDER

FOR THE STATE OF CALIFORNIA

221 Main Street, 10th Floor

San Francisco, CA 94105

(415) 904-5600

DENISE KENDALL

775 East Blithedale, No. 530

Mill Valley, CA 94941

(415) 384-0281

*Counsel of Record for Respondent

ROBERT FREDERICK GARCEAU

TABLE OF CONTENTS

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This Court Should Deny The State's Petition For Writ Of Certiorari Because It Is

Neither An Appropriate Matter Nor A Matter Of Sufficient Importance For

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The Unusual Procedural Posture Of This Case, The Limited Number Of

Cases To Be Affected By This Issue, And The Chaos That Would Result

If This Issue Were Considered, Make This Case Inappropriate For

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The Circuit Court of Appeal Correctly Decided, In Accordance With The

Prior Decisions Of This Court, That This Case Was Pending Before The

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This Court Should Deny Petitioner’s Petition For Writ Of Certiorari Because In

The Face Of The State’s Waiver Of Teague, The Court Of Appeals Correctly

Exercised Its Discretion Not To Apply Teague ...... 2... 6. 6c ccc eee eens 10

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When The Court of Appeals Panel Unanimously Considers And

Determines In Their Discretion Not To Apply Teague When It Was

Never Raised By The State, There Is No Abuse Of Discretion ........ 10

Since Teague Was Already Considered By The Court of Appeals, And

Since The Court of Appeals Properly Exercised Its Discretion To Decide

Not To Apply Teague, There Is No Reason For This Court To Consider

Vacating The Lower Court’s Decision ......... 2... 666.6 cece uee 17

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TABLE OF AUTHORITIES

Agard v. Portuondo

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Blankenship v. Johnson

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Boardman v. Estelle

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Calderon v. Kelly

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Caspari v. Bohlen

PE SE con cc veccessecocececcseneséneeussecensecesehcesoseses 10-13, 19

Ciak v. U.S.

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Collins v. Youngblood

SF es EE 6 0.0600 kedocccecénudasnccécotneedecocaneneseceoenedanes 11, 12, 18

Eaglin v. Welborn

Fe Pee EPG USED ccc ccccccccccccccecccccsccenccocccosescescoeceescsees 15

Fisher v. Texas

ED, GUGED ccc cuncdccecedsceense00cesécetqsusesenecnessesecses 12

Garceau v. Woodford

ee CP ED he hcccccecdcccsacccccdeceeecnceconeneceseutesescouns 14

Gilmore v. Taylor

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Godinez v. Moran

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Goeke v. Branch

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Granberry v. Greer

Ge es CPEs cccccccecccccccccscccascnneddseccesecencenssasuneneuteener 19

Hohn v. U.S.

EE cnecondscevencendduncessbesseutédeddbeocsnsetdsvedeubocaeedie 9

Hopkins v. Reeves

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Horn v. Banks

SUED 6b ciccesecceckeuenecdnde0nsssenueseénoces 10, 11-13

Jackson v. Johnson

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Keene Corp. v. United States :

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Kelly v. Calderon

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Lindh v. Murphy

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Lyons v. Stovall

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Martin v. Hadix

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McFarland v. Scott

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Penry v. Lynaugh

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Saffle v. Parks

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Schiro v. Farley

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Sinistaj v. Burt

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Slack v. McDaniel

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Smith v. Kemp

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Spazino v. Singletary

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Teague v. Lane

Ds dascendcesknses6eeucedneséscteananedsouaneneduauedsad passim

United States v. Brown

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Wainwright v. Sykes

SS PE écecccecccecccesvesscusncudenceddeubees dueseensadsncntocnens 19

Williams v. Coyle

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Williams v. Dixon

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Wilmer v. Johnson

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STATEMENT OF FACTS

To the extent that Petitioner accurately describes the factual history of this case,

Respondent incorporates Petitioner’s Statement of the Case. However, Petitioner repeatedly

blurs, avoids, and even misstates critical parts of the factual background in order to garner

support for their argument. To this extent, Respondent clarifies and accurately restates specific

facts of this case.

In an attempt to demonstrate that the provisions of the Antiterrorism Effective Death

Penalty Act (AEDPA) govern the case at hand, Petitioner alleges in the procedural history

incorporated into their argument that “the appointment of counsel and request for stay of

execution was uncontested in this case.” Pet. at 9,n. 4. This statement is untrue. In fact, the

motion for appointment of counsel and request for stay of execution was fully contested. '

Petitioner makes this misstatement to support the argument that because Respondent's case

involved no adversity prior to the filing of the petition, it did not constitute a “pending case” as

defined by the AEDPA and that the AEDPA therefore applies. Petitioner’s misstatements are

' On May 2, 1995, the Court issued a Notice of Hearing. On May 12, 1995, the court

issued an Order Staying Execution and All Proceedings. On May 12, 1995, Respondent filed an

Ex Parte Application for Stay to Permit Appointment of Counsel and Notice of Intention to File

Petition For Writ of Habeas Corpus. On June 26, 1995, the court issued an Order Appointing

Counsel and Temporary Stay of Proceedings. On August 1, 1995, Petitioner filed a Notice of

and Motion to Vacate Stay of Execution. On August 14, 1995, Respondent filed a Specification

of Non-Frivolous Issues (incorporating arguments surrounding the improper use of peremptory

challenges, and prosecutor misconduct at penalty phase.) On August 15, 1995, Respondent filed

Opposition to Motion to Vacate Stay of Execution. On September 19, Respondent Filed Supp.

Decl. of Lynne S. Coffin Filed in Support of Petitioner’s Opp. to Motion to Vacate Stay of

Execution. On October 13, 1995, Court Issued Order Denying Motion To Vacate Stay Of

Execution Appointing Counsel, Setting Dates. On November 8, 1995, the court issued an Order

Granting An Extension to File Case Budget and Stay of Execution. On December 19, 1995, the

court issue an Order Requiring Filing of Petition For Writ of Habeas Corpus and Answer. On

June 4, 1996, Petitioner filed their Opposition to Temporary Stay to October 7, 1996 Proposed

Order Staying Execution. On June 26, 1996, Respondent filed an Ex Parte Application and

Order for Stay of Execution Pending Final Disposition of Habeas Corpus Petition. On July 2,

1996, Respondent filed their Petition for Habeas Corpus. See App. G-S.

2

inadequate attempts to distinguish this case from the precedents favoring Respondent.

Petitioner’s argument that this case is proper for certiorari review fails to convince due to the

limited and finite number of cases to be affected by this waning issue. Moreover, the effect of

any outcome of this case is limited since Respondent is already facing another term of thirty two

years to life imprisonment.’

Petitioner further misleads this Court in the second part of their argument. Although

Petitioner admits in the first sentence of their Teague ’ argument (Pet. at 12) that “(t]he State did

not raise Teague until the petition for rehearing filed in the Ninth Circuit and now in the petition

for certiorari,” Petitioner then proceeds to state that the court, despite “clear notice,” failed to

apply Teague. Pet. at 10; see also the court “was expressly on notice” (Pet. at 13), where the

court is “expressly on notice” (Pet. at 13), and where “a federal court is on notice” of Teague

(Pet. at 13). Although Petitioner's initial statement admits that the State did not raise Teague in

either the district court or on appeal, Petitioner still manages to imply that the Court was

somehow “on notice” of Teague other than by the fact that the court sua sponte raised Teague.

Apart from these improper implications and misstatements of the factual background of

this case, Respondent incorporates the factual history of this case as accurately portrayed by

Petitioner.

SUMMARY OF ARGUMENT

Both of the issues that Petitioner lays before this Court are wholly inappropriate for

Petitioner first alleges that the court of appeals incorrectly held that this case was pending

before the enactment of the AEDPA. The court of appeals decided this issue in line with

numerous holdings of this Court. Moreover, given the fact that the issue of what constitutes a

? Respondent was convicted of first degree murder and other crimes and sentenced to

prison for a term of 32 years and four months to life. See App. T-U.

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

3

“pending” case under the AEDPA is soon to be a moot issue, this Court should not disturb the

numerous holdings of the circuit courts in order to rule on the dwindling number of cases which

remain. Given the fact that this issue is soon to become irrelevant, Petitioner's portrayal of this

issue as having important consequences is simply unsupportable.

Petitioner also argues that the court of appeals abused its discretion in failing to apply

Teague. Petitioner ignores the numerous holdings of this Court stating that when the state fails

to argue Teague until its Petition for Rehearing and Petition for Certiorari, that Petitioner has

waived Teague, and that the court, under those circumstances, has discretion whether to apply

Teague.

REASONS FOR DENYING THE WRIT

1. This Court Should Deny The State's Petition For Writ Of Certiorari Because It Is

Neither An Appropriate Matter Nor A Matter Of Sufficient Importance For

Certiorari Review

This issue is not proper for certiorari review for at least three reasons. One, this Court

has already decided this issue, and the holding of the Ninth Circuit in Calderon v. United States

District Court (Kelly), 163 F.3d 530 (9th Cir. 1998)(en banc) and the cases it relies on is both

correct and in conformity with this Court’s prior decisions. Second, this case finds itself in a

highly unusual procedural posture, and the number of similar cases to be affected by this issue is

both limited and finite. This issue simply lacks vitality. Therefore, this is not an area of law in

need of this Court’s authoritative voice, and were this Court to let this issue stand, the national

impact would be minimal.‘ Third, however, if this Court were to consider this question, any

manner by which this Court decided the issue would result in chaos in the courts. For these

reasons, this is neither an appropriate matter nor a matter of sufficient importance for this Court

to consider on certiorari review. This Court should deny Petitioner’s Writ for Grant of

Certiorari.

* This Court has previously decided that this exact issue does not merit review. See

Kelly v. Calderon, 523 U.S. 1063 (1998), cert denied.

A. The Unusual Procedural Posture Of This Case, The Limited Number Of

Cases To Be Affected By This Issue, And The Chaos That Would Result If

This Issue Were Considered, Make This Case Inappropriate For Certiorari

Review

This case is in a highly unusual procedural posture, and is simply not fit for certioran

review. Petitioner argues that since other pre-AEDPA cases remain, that this Court must

consider this issue. However, this issue lacks vitality. The actual number of cases to fall into

this situation are both few and finite. The atypical history which affects Respondent only occurs

where the filing of the petition was on or after April 24, 1996 (post-enactment of the AEDPA),

but where there was a Motion for Appointment Of Counsel and Stay of Execution prior to the

enactment of the AEDPA. Moreover, in order for this to be an issue that the state would contest,

given the less onerous standard under pre-AEDPA legislation, it would have to be a case where

the circuit court ruling was in the defendant's favor. Particularly given the fact that at the time

the AEDPA legislation was pending, defense attorneys were advised to file their petitions

quickly, at this late point in the day, there are bound to be very few cases which fall into this

unusual procedural posture. As a result, few, if any, cases will follow in the path of Garceau.

The issue in Kelly, therefore, is a matter which does not merit review on certiorari, due to the

finite and rapidly decreasing number of cases to be affected. The mere passage of time will

render this issue moot.

Given the minimal national impact of letting this issue stand, this is clearly not an area of

law in need of this Court’s authoritative voice. On the other hand, the result of this Court

considering this issue would be to create havoc in the courts. Any way that this Court decided

the issue would result in procedural chaos. If this Court were to agree with Petitioner and find

against Respondent, a major issue would develop as to what should be done with the cases which

have found themselves in this position. Would they be sent back to the circuit court for review?

Would they be sent back to the district court for review? All of the cases in this position would

have to be reheard and the circuit court would have to develop and implement a procedural

5

mechanism to deal with these cases and organize this process. If the district court had treated a

case as not falling under the AEDPA, and the circuit court then treated the case as under the

AEDPA, total confusion would result. Moreover, if the Court were to disagree with Petitioner,

numerous cases would have to be reheard. Such a ruling would result in complete chaos within

and between the circuits. And the entire point of having created such confusion and havoc in the

courts, would simply be to rule on an issue which is quickly disappearing. Even the cases cited

by Petitioner admit that “once all cases in which a petitioner initiated some habeas corpus-related

legal action prior to the effective date of the AEDPA have been resolved, the point at which a

section 2254 case is filed will become irrelevant.” Williams v. Coyle, 167 F.3d 1036 (Sth Cir.

1999). Petitioner’s portrayal of this issue as having important consequences is specious and

unsupportable. Petitioner’s Petition for Writ of Certiorari should be denied on these grounds

alone.

B. The Circuit Court Of Appeal Correctly Decided, In Accordance With The

Prior Decisions Of This Court, That This Case Was Pending Before The

Enactment Of The AEDPA

Petitioner wrongly alleges that the Ninth Circuit applied the incorrect trigger event for the

application of the AEDPA and that this case was not pending before the application of the

AEDPA. The court of appeal, in accordance with prior decisions of this Court, has found that the

AEDPA does not apply to a federal petition filed on or after April 24, 1996 if there is a motion

for appointment of counsel and stay of execution filed prior to that date. Calderon v. Kelly, 163

F.3d 530 (9th Cir. 1998, en banc). That court correctly held in Kelly that there are two steps that

suffice to commence habeas corpus proceedings: one, by filing a habeas corpus petition

accompanied by an application for a stay of execution, or two, as endorsed in McFarland v.

Scott, 512 U.S. 849 (1994), by filing an application for appointment of counsel accompanied by

an application for a stay of execution. Calderon v. Kelly, 163 F. 3d 530. Petitioner incorrectly

argues that the only triggering event for the application of the AEDPA is the filing of the habeas

petition. The decision of the circuit court in Kelly is in accord with the holdings of this Court, as

6

reflected by the fact that this Court in Kelly previously declined to consider this issue on

certiorari review. Kelly v. Calderon, 523 U.S. 1063 (1998), cert denied.

This Court has held that the AEDPA’s provisions do not apply to “cases pending” at the

time of the statute’s enactment. Lindh v. Murphy, 521 U.S. 320 (1997). In determining the

meaning of “cases pending,” Kelly relied on this Court’s holdings in Lindh, Hohn v. United

States, 524 U.S. 236 (1998), and McFarland. Although the opinion of the majority in Kelly was

consistent with the prior line of decisions of this Court, Petitioner argues that the dissent in Kelly

provides the basis for rejecting the approach taken by the majority with regard to the trigger date

of the AEDPA. Petitioner’s argument has two main themes. First, Petitioner disputes equating

the word “case” as used in Hohn with the meaning of the word “case” for purposes of

determining whether the provisions of AEDPA apply. Pet. at 7. Petitioner cites the dissent from

the majority reasoning in Kelly, stating that where a petition has not been filed, there is “nothing

that could remain a case.” Pet. at 8, citing Calderon v. Kelly, 163 F.3d 545. Petitioner also cites

the dissent in Kelly in support of the second prong of their argument that the holding in Hohn is

distinguishable from the present facts since a certificate for appealability, as in Hohn, involves

adversity that the current facts do not. Petitioner bases this argument on the notion that since a

stay of execution is “usually” granted and since appointment of counsel is “mandatory,” and

since in the specific facts of this case, the appointment of counsel and request for stay of

execution were “uncontested,” that no case had been initiated before the enactment of AEDPA.

Pet. at 8-9.

Petitioner’s argument is meritless on several grounds. Petitioner cannot claim that these

proceedings are not and were not adversarial in nature. The grant or denial of a stay of execution

is addressed to the discretion of the district court, and “is not a ministerial or mandatory act.”

Calderon v. Kelly, 169 F.3d 540. This Court has made clear that capital defendants must raise at

least some colorable federal claim before a stay of execution may be entered. McFarland v.

Scott, 512 U.S. 861. Moreover, as demonstrated above, Petitioner misstates the facts of this case.

In August 1995, almost a year before the enactment of the AEDPA, the Motion for Stay of

Execution was fully litigated. See supra, n.1; see App. G-S. For Petitioner to argue that the

request for stay of execution was uncontested is demonstrably false. Further, Petitioner’s attempt

-

to distinguish Hohn on the grounds that because the appointment of counsel is mandatory, a stay

of execution will usually be granted is equally inappropriate. The appointment of counsel is not

mandatory and could involve adversarial proceedings, although it did not in fact do so in this

case.

In addition, Respondent filed, what was at the time required, a Specification of

Non-Frivolous Claims, outlining Respondent’s specific habeas claims. See App L. These claims

included allegations of improper use of peremptory challenges, and prosecutorial misconduct at

penalty phase. Contrary to Petitioner’s argument, by detailing the habeas claims in the

Specification of Non-Frivolous Issues, there was clearly something that “could remain a case.”

The true facts of this case, as misstated and avoided by Petitioner, diffuse the majority of

Petitioner’s argument which is largely based on a claim that there was no adversity in this case

prior to the filing of the petition and nothing that could remain a “case.”

Moreover, the decision in Kelly is correct and is in harmony with the other decisions of

this Court. The cases cited by Petitioner demonstrating a circuit split argue that Hohn only

stands for the proposition that a motion for appointment of counsel constitutes an appealable

case, and that this does not imply that a habeas corpus case has been initiated by the filing of

such a preliminary motion. Williams v. Coyle, 167 F.3d 1040 (Sth Cir. 1999). However, this

Court’s decision in Hohn rejected the contention that the filing of a preliminary motion

constituted a threshold inquiry that should be regarded separate from the merits.’ The tie that

binds Hohn and Kelly, therefore, is that neither an application for appointment of counsel nor an

application for a certificate of appealability should be regarded as threshold matters, separate

from the merits, but rather as judicial proceedings to resolve cases or controversies.

Petitioner is muddying clear waters. This Court in McFarland held that a habeas

proceeding is “commenced” by the appointment of counsel. McFarland v. Scott, 512 U.S. at

> Moreover, as the dissent in Williams argued, given the fact that Congress recognized

the need for counsel to prepare the petition for the writ, requiring the actual filing of the petition

for the commencement of the proceedings may effectively “deny uneducated, poor petitioners

their remedy. The filing of a motion for appointment of counsel is as much as many such

petitioners can accomplish without the assistance from an attorney.” Williams v. Coyle, 167 F.3d

1041; see also McFarland v. Scott, 512 U.S. 849.

856-857. Reading U.S.C. section 848 (providing for legal assistance in pre-application capital

federal habeas corpus proceedings) and U.S.C. section 2251 (allowing a federal court to enter a

stay of execution when a habeas corpus case is “pending”) together, the McFarland court held

that a “case” is “pending” if there is appointment of counsel. McFarland v. Scott, 512 U.S. at

858. The “proceeding...pending” language of Chapter 153's stay provision cannot be

meaningfully distinguished from the "cases pending" language of section 107(c), which as Lindh

concluded, "implicitly" governs the applicability of "the amendments to chapter 153." Lindh v.

Murphy, 521 U.S. 320, 326-27 (1997).° That analysis is reenforced by the Court's decision in

Hohn that a preliminary pleading filed in a court should be treated as an indivisible part of the

overall "case," and which confirmed the analysis in McFarland by equating "case" with

“proceeding.” Hohn v. U.S., 524 U.S. 236. These decisions of this Court led the circuit court to

properly conclude in Kelly that a petition for appointment of counsel, coupled with a motion for

stay of execution, constituted a “pending case.”

Although Congress used the word “application” throughout the AEDPA, Congress did

not prescribe that the retroactivity dividing line was between “applications” or “petitions” that

were “filed” and “applications” or “petitions” that were “not filed.” Rather, Congress prescribed

that the dispositive consideration was whether there was a “case pending” as of the AEDPA’s

enactment. The reason Congress chose to use the broader term “cases pending” in section

107(c), the retroactivity provision, instead of the term “application” or “petition,” is clear. As

this Court had recently held in McFarland, although habeas proceedings can be initiated only by

the filing of a petition or application, capital habeas proceedings can be commenced by the filing

of a request for appointment of counsel pursuant to 21 U.S.C. section 848. By using the words

“cases pending,” Congress opted for a term that would encompass both methods of initiating

habeas corpus proceedings.® Moreover, as this Court held in Hohn, the words “case” and “cause”

*There is no basis whatsoever to merely assume that Congress was sloppy in its drafting.

See Keene Corp. v. United States, 508 U.S. 200 (1993) [it is generally presumed that Congress

acts intentionally and purposely in using different language in different parts of a statute]. That

the terms “cases” and “applications” are not synonymous is confirmed by the fact that they have

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9

are constantly used as synonyms in statues, and that “case” as used in a statue, means a court

proceeding, suit, or action. Hohn v. U.S., 524 U.S. 241 (1998); see also United States v. Brown,

206 U.S. 240 at 244 (1907) [we must “accept the plain meaning of words”]. Congress’s choice

of the word “cases” rather than “petitions” or “applications” in section 107(c) harmonized

perfectly with this Court’s then-recent decision in McFarland.

Moreover, this Court's holding in Slack v. McDaniel, 529 U.S. 473 (2000) provides

further support for the Kelly position that a pre-AEDPA McFarland application for appointment

of counsel triggers the application of pre-AEDPA law. Slack holds that an “application for

Certificate of Appealability” "commences" an "appellate case" because it "initiates" "proceedings

in appellate courts," and "we have described proceedings in the court of appeals as appellate

cases." /d. at 481-482. Because a McFarland application for appointment of counsel similarly

"initiates" "proceedings" in the district court, such a filing should be understood to commence a

"case" in the district court for purposes of determining the AEDPA's applicability to the district

court proceedings. In order for this Court to find for Petitioner and grant this petition for

certiorari, this Court would have to find that although a habeas corpus “proceeding” is

“commenced,” and although a habeas corpus “proceeding” is “pending,” that a habeas corpus

“case” is not “pending.” That is an untenable position for which there is no support. This Court

has already decided this issue in McFarland, and would have to depart from that holding in order

to find for Petitioner in this case.

This Court has repeatedly held that reliance and the reasonable expectations of individual

litigants are of paramount concern in assessing the retroactivity of a statute. Martin v. Hadix,

527 U.S. 343, 358 (1999); Lindh v. Murphy, 521 U.S. at 327-28. This Court’s cases stand for

the principle that there is a reasonable expectation of parties that once a case develops to a certain

point in the litigation that the parties will or will not be covered by the legislation in question, as

such a determination clearly affects the decision-making in the litigation. For this reason, this

obviously different meanings in the four places in the AEDPA where they are directly

juxtaposed. See e.g. 28 U.S.C. section 2262(c) (limiting a habeas court’s “authority to enter a

stay of execution in the case unless the court of appeals approves the filing of a second or

successive application” (emphasis added); See also, section 2266(b)(1)(a) and (c)(1 (a) and

2263(b)(3 (a).)

10

Court held in Lindh that the amendments to the habeas corpus provisions would not apply to

“cases pending” before the effective date of the AEDPA.

The decision in Kelly, and its application in Garceau, is in keeping with this Court’s prior

decisions in McFarland, Lindh, and Hohn. These cases were correctly decided and this Court

should not now depart from these holdings to decide what is now a vanishing issue.

Il. This Court Should Deny Petitioner’s Petition For Writ Of Certiorari Because In

The Face Of The State’s Waiver Of Teague, The Court Of Appeals Correctly

Exercised Its Discretion Not To Apply Teague

Petitioner wrongly alleges that the court below abused its discretion in failing to apply

Teague v. Lane 489 U.S. 298 (1989) where the state failed to argue Teague both in the district

court and on appeal. When the State waives Teague, the court has discretion whether or not to

apply a Teague analysis, which is exactly what the court of appeal did here. Moreover, given the

specific facts of this case, the court of appeals properly exercised its discretion in declining to

apply Teague.

A. When The Court of Appeals Panel Unanimously Considers And Determines

In Their Discretion Not To Apply Teague When It Was Never Raised By The

State, There Is No Abuse Of Discretion

Petitioner wrongly alleges that despite clear notice as to the possible application of

Teague, the court of appeals ignored Teague, and in doing so abused its discretion and

demonstrated a split in the circuits’ approach to Teague. Pet. at 10. Every aspect of Petitioner's

argument fails to withstand scrutiny. Petitioner is essentially asking this Court to ignore well

established legal principles and find that when the lower court is “on notice” of Teague, it is an

abuse of discretion not to always apply Teague. Petitioner argues that this is an important issue

to be decided by this Court. Pet. at 13. However, Petitioner ignores the fact that this Court has

already decided this issue in Caspari v. Bohlen, 510 U.S. 383, 389 (1994), and has just recently

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11

reaffirmed this decision in Horn v. Banks, 122 S.Ct. 2147 (U.S. June 17, 2002), by holding that

when the state fails to argue Teague, there is no duty on the court to apply it. Petitioner misleads

this Court by arguing that the court was “on notice” of Teague, rather than admitting the lower

court considered Teague and exercised its discretion in not applying it. In fact, the only real issue

is whether Petitioner raised and argued Teague, not whether the court of appeals of its own

fruition mentioned and considered Teague. Moreover, where as here, Petitioner wholly failed to

argue Teague, this Court has repeatedly made clear that there is no duty on the court to apply

Teague.

Petitioner also alleges that there is a conflict of decisions between the circuits with regard

to when to apply Teague. Although there is n > direct circuit split, to the extent that one may

have developed, this Court has just reaffirmed in Horn that in the face of Teague-waiver by the

state, whether to apply Teague sua sponte is a matter for the court’s discretion. Therefore, this

Court has just decided this exact issue, leaving nothing for this Court to consider in the present

case. For all of these reasons, Petitioner’s Petition for Writ of Certiorari should be denied.

In line with a consistent string of decisions from this Court, this Court has just held in

Horn that a federal court hearing a habeas petition may decline to apply the Teague doctrine if

the state does not argue it, but that if the state does argue that the defendant seeks the benefit of a

new rule of constitutional law, that the court must apply Teague before considering the merits

(affirming this Court's prior decisions in Caspari v. Bohlen, 510 U.S. 389 [a “federal court may,

but need not, decline to apply Teague if the State does not argue it. But if the State does argue

that the defendant seeks the benefit of a new rule of constitutional law, the court must apply

Teague before considering the merits of the claim”], Collins v. Youngblood, 497 U.S. 37, 41

(1990), and Schiro v. Farley, 510 U.S. 222, 228-229 (1994).) Therefore, if the state argues

Teague, the court has a mandatory duty to apply a Teague analysis; if the state fails to argue

Teague, it is in the court’s discretion whether or not to apply Teague.

This Court's recent decision in Horn is in line with repeated decisions of this Court which

have held that the burden of asserting non-retroactivity belongs to the state and not to the federal

courts sua sponte. Hopkins v. Reeves, 524 U.S. 88, 94 (1998). Although the court raises and

applies Teague sua sponte when the court believes it is appropriate to do so (Saffle v. Parks, 494

12

U.S. 484 (1990); Penry v. Lynaugh, 492 U.S. 302 (1989); Fisher v. Texas, 169 F.3d 295, 305

(Sth Cir. 1999); Spazino v. Singletary, 36 F.3d 1028, 1041-1042 (11th Cir. 1994)), Teague is

not a junsdictional issue, and this Court has repeatedly held that when the state fails to argue

Teague, it is in the Court's discretion whether to appiy Teague. Horn v. Banks, 122 S.Ct. 2147

(U.S. June 17, 2002); Caspari v. Bohlen, 510 U.S. 390; Schiro v. Farley, 510 U.S. 228-229;

Collins v. Youngblood, 497 U.S. 41; see also Ciak v. U.S., 59 F.3d 296, 302-303 (2nd Cir.

1995). Although Teague is a heightened affirmative defense to the extent that the Court may

raise it sua sponte, like other judicially extended affirmative defenses, the duty is still on the state

to assert it before it is incumbent on the court to consider it.

Although the state regularly raises Teague, the state can waive Teague for whatever

reason it chooses, and in fact did so in this case. Petitioner failed to raise Teague in the district

court and again on appeal. Even when the court of appeals specifically raised the issue of Teague

at oral argument, Petitioner still failed to argue Teague and gave no explanation for its failure to

raise it. In fact, the circuit panel was unanimous in its refusal to apply Teague. Justice

O’Scanniain stated in his dissent from the merits of the decision,

I would hesitate to forego a Teague analysis if the state had only implicitly waived

Teague by failing to raise it in his briefs.... The state, though, went one step

further. Asked at oral argument whether Teague applied to this case, counsel for

the state lamely replied, “Teague has never been raised in this case.” When

pressed from the bench, and given an opportunity to raise Teague, counsel

impotently responded, “I don’t know why Teague has never been raised in this

case,” but did not in fact raise it.

See App. A.

Although Petitioner claims it did not expressly waive Teague (Pet., n.7), the facts show

otherwise. Not only did Petitioner fail to raise and argue Teague, which in itself constitutes

waiver sufficyent to relieve the court of its duty to apply Teague as a threshold issue, but as even

the dissent agreed. Petitioner expressly waived Teague when put on notice at oral argument of its

possible application and still failed to raise Teague. In fact, Petitioner still has not given any

explamatvon for why they have not raised Teague until this late hour.

Petitioner misleads this Court by repeatedly claiming that the court below was “on notice”

13

of Teague, implying that under such circumstances the court was either under a duty to apply

Teague, or at the least, should have applied Teague. Although Petitioner is forced to admit that

the court was not "on notice” of Teague as a result of any of its own actions, Petitioner still

misleads this Court by failing to clarify that the court sua sponte raised the issue of Teague.

Rather than admitting that the lower Court sua sponte raised Teague, instead, Petitioner claims:

“Despite clear notice as to the application of Teague v. Lane, 489 U.S. 288 the Ninth Circuit

ignored Teague ...." (Pet. at 10, emphasis added), "[H]owever, this Court should find that, under

circumstances such as exist in Garceau, where the court is expressly on notice of the application

of Teague...." (Pet. at 13, emphasis added); and "[A}lthough the State did not itself raise Teague,

there is no question that the Ninth Circuit was expressly on notice as to Teague’s application..."

(Pet. at 13, emphasis added). Although Petitioner clearly wants to argue that the court was "on

notice" of Teague, and therefore should have applied Teague, Petitioner refuses to admit that the

court was "on notice” of Teague only because the court raised Teague of its own accord.

Petitioner's “on notice” language is entirely inapplicable to this case. This Court’s

decisions hold that “a federal court may, but need not, decline to apply Teague if the State does

not argue it.” Caspari v. Bohlen, 510 U.S. 389, emphasis added, applying Schiro v. Farley, 510

U.S. 228-229 [“federal courts must address the Teague question when it is properly argued by

the government”); Horn v. Bamks, 122 $.Ct. 2147 (U.S. June 17, 2002). Nowhere in this Court’s

decisions in Horn and Caspari does this Court hold that the court must apply a Teague analysis

when the court is “on notice” of Teague when the state never once raised or argued Teague.

Clearly any time the court “may, but need not, decline to apply Teague” (Caspari v. Bohlen, 510

U.S. 389), the court would be “on notice” of Teague. This Court’s decisions hold the exact

opposite, therefore, of what Petitioner argues, and find that if the state fails to argue Teague, the

court may decline to apply Teague. Petitioner’s argument that the court was “on notice” of

Teague is therefore misleading and irrelevant.

Petitioner further misleads this Court by arguing that the court of appeals failed to

“consider” Teague (Pet. at i, Question 2A), failed to "address" Teague (Pet. at 13, 14), and failed

to "apply" Teague (Pet. at 15). This specious argument implies that the court of appeals actually

failed to consider Teague, when in fact that is clearly not the case. Contrary to Petitioner’s

14

claims, the court did consider whether to apply a Teague analysis even though Petitioner had,

both implicitly and explicitly, waived Teague in the district court, in the court of appeals directly

in oral argument, and in fact did not raise Teague at all until its Petition for Rehearing (which

was denied), and then in this Petition for Certiorari. Therefore, although there was no duty on

the court to even consider Teague since it was never raised and was thereby waived by Petitioner,

the court nonetheless did in fact sua sponte raise Teague. However, after deliberating on the

issue, the court unanimously decided not to apply Teague, in part, at least, because even in the

face of direct questioning, Petitioner still failed to raise Teague. Garceau v. Woodford, 275 F.3d

769, 781 (9th Cir. 2001) (“Because the state thus explicitly declined to invoke Teague, even

when squarely presented with the opportunity to do so | reluctantly conclude that it is

inappropriate to analyze whether the Teague bar applies}. Petitioner's attempt to confuse the

issue by simultaneously arguing that the court failed to “consider” and failed to “apply” Teague

is misleading. Even though under the circumstances of this case the court had no duty to apply

Teague, the court of appeals did consider whether to apply Teague and in its discretion decided

not to.

One of the reasons supporting the policy that the state must alert the court to Teague

before the court is under a duty to consider Teague, is so that the court has ample opportunity to

make a reasoned judgment on the issue. Goeke v. Branch, 514 U.S. 115, 117 (1995)(per curiam)

{raising Teague in district court and appellate briefs and in extended oral argument on appeal

suffices to allow the appellate court ample opportunity to make a reasoned judgement); see also

Lyons v. Stovall, 188 F.3d 327, 338 (6th Cir. 1999) [the court applied Teague stating that

sufficient effort had been made to alert the court to Teague and provide ample opportunity for the

court to make a reasoned judgment]. Here, Petitioner failed to provide, and continues to fail to

provide, absolutely any explanation as to why Teague had not been raised, and no explanation

whatsoever as to why it should apply on these facts. For the court to apply Teague under those

circumstances would distort the balance between the parties. Lyons v. Stovall, 188 F.3d 350 (6th

Cir. 1999) [“the appearance of justice is compromised when the court of appeals steps into the

role of the statz’s attorney, raising a defense the state has waived in order to bar relief”).

Moreover, for this Court to sua sponte apply Teague could result in undue hardship to

a

. |

15

Respondent. Because Petitioner never argued Teague, Respondent never briefed the issue.

Under these circumstances, the court of appeals correctly exercised its discretion to determine

that it would be inappropriate to apply Teague.

Petitioner seeks to paint a picture of a split between the circuits with regard to the

application of Teague. This is a complete fallacy. All of the circuits agree there is no sua sponte

duty on the court to raise Teague, and that the state can waive Teague by failing to raise it. Lyons

v. Stovall, 188 F.3d 327; Agard v. Portuondo, 159 F.3d 98, 99-100 (2nd Cir. 1998) (“Teague is

not jurisdictional in the sense that a court must invoke it sua sponte where applicable}, Wilmer

v. Johnson, 30 F.3d 451, 454-55 (3rd Cir. 1994)[respondent waived Teague by raising it for first

time on appeal in supplemental brief requested by the Court}; Sinistaj v. Burt, 66 F.3d 804, 805

(6th Cir. 1995)[respondent waived Teague by raising it for the first time on motion to amend

district court’s judgment}; Eaglin v. Welborn, 57 F.3d 496, 499 (7th Cir. 1995); Blankenship v.

Johnson, 118 F.3d 312, 316-317 (Sth Cir. 1992). Petitioner cites absolutely no authority to the

contrary. Although by use of selected quotations from Jackson v. Johnson, 217 F.3d 360 (Sth

Cir. 2000), Petitioner attempts to manufacture a split in the circuits, in fact, the decision of the

Fifth Circuit is easily reconciled with the court of appeal’s opinion in the case at hand.

Jackson stands for the proposition that “absent a compelling, competing interest of justice

in a particular case, a federal court should apply Teague even though the state failed to argue it.”

Jackson v. Johnson, 217 F.3d 363. In Jackson, the state failed to raise Teague in the district

court, but raised Teague on appeal. On appeal, the Fifth Circuit held that the state's implicit

waiver of Teague in the district court did not prevent the court of appeal from applying Teague

when the state raised it on appeal. Here, Petitioner failed to raise and argue Teague in the district

court amd on appeal, even where the reviewing court sua sponte raised the issue. Further,

Petitioner is not arguing that the court was prevented from considering Teague, but rather that the

court of appeals was not only obligated to consider it, but was obliged to apply it,

notwithstanding the state's waiver. The facts of Jackson therefore make it entirely distinguishable

from the present case.

Moreover, to the extent that Jackson departs from the earlier holdings of this Court,

Jackson merely states that a court “should” apply Teague, “absent a compelling, competing

16

interest of justice.” Such an advisory opinion on how the court should exercise its discretion is

not directly in conflict with this Court’s prior holdings and those of the other circuits that the

court does not have a sua sponte duty to apply Teague if the state does not argue it and does not

represent a circuit split. However, even to the extent that this decision represents a divergent

opinion as to how the courts should exercise their discretion, this Court has just resolved any

alleged conflict by reaffirming in Horn its prior holding in Caspari that Teague is not a

jurisdictional issue, and that whether to apply Teague if the state fails to argue it is a matter

purely within the court’s discretion.

Petitioner's argument reveals that the real source of Petitioner's complaint is that the court

of appeals exercised its discretion in Respondent's favor. Petitioner is essentially asking this

Court to rule on an issue not fit for certiorari review: whether the court of appeals properly

exercised its discretion. It can never be cert-worthy to argue that the court has sua sponte failed

to exercise its discretion in a certain way. The rules of this Court state that “certiorari is rarely

granted when the asserted error consists of... the misapplication of a properly stated rule of law."

Sup. Ct. R. 10. There are no conflicts between the circuits with regard to the discretionary nature

of the court’s ability to waive Teague in the face of waiver by the state. Clearly this Court cannot

and should not review the exercise of each court’s discretion whether or not to apply Teague

when waived by the state, when the scope of that discretion is not in issue.

Since the court had discretion to consider whether to apply Teague, as recently reaffirmed

by this Court in its decision in Horn, this Court should not review the exercise of discretion to

find that the court improperly found that Petitioner waived Teague and that Teague applied. It is

wholly inappropriate for this Court on grant of certiorari to review the exercise of the court of

appeals’ discretion when the court of appeals acted within the scope of their discretion. It is a

factual finding made by the court of appeals that the state never raised Teague. Petitioner should

not be allowed to now argue that the court of appeals abused its discretion in finding that the

state waived Teague. Although Petitioner implies that this issue raises important and recurring

constitutional questions (Pet. at 15 [“[g]iven the important principles underlying Teague, federal

courts should not be free to apply or ignore its restrictions at will’’}), this Court has just decided

in Horn, reaffirming a long line of decisions, that in circumstances such as these, where the state

17

waived Teague, the decision to apply Teague is a matter for the court’s discretion.

For all these reasons, this Court should deny Petitioner's application for grant of writ of

B. Since Teague Was Already Considered By The Court of Appeals, And Since

The Court of Appeals Properly Exercised Its Discretion To Decide Not To

Apply Teague, There Is No Reason For This Court To Consider Vacating

The Lower Court's Decision

Petitioner argues that since Teague was properly raised in this petition for certiorari, and

since Teague is a threshold issue, that the court of appeals decision should be reversed.

Petitioner advances wholly inconsistent theories. In the first part of the question, Petitioner

argues that the court of appeals failed to consider Teague, even though the court was "on

notice"of Teague, an argument both irrelevant and completely belied by the facts. In the second

part of the question, Petitioner now contends, "The prosecution has raised the application of

Teague v. Lane, 489 U.S. 288 in this petition for certiorari. Despite the late assertion of this

issue, the Teague issue is now properly before this Court." Pet. at 15. Petitioner’s statement that

this issue is “now” properly before this court contradicts Petitioner's earlier argument that this

issue was already properly before the lower court and that court should therefore have applied

Teague.

Although Teague is a threshold question when properly raised, Petitioner’s argument that

this issue is now properly raised in the petition for certiorari ignores the fundamental fact that

Petitioner already waived this claim by failing to raise it in the district court, and again on appeal,

even in the face of direct questioning as to its applicability. Petitioner has not properly raised

Teague because Petitioner has simply waited too long to do so. Although Petitioner cites

authority allegedly in support of their proposition that they can properly raise Teague on petition

for certiorari, the authority cited by Petitioner merely explains that Teague was not addressed in

those cases because it was not raised in the lower federal court or on petition for certiorari.

These cases provided only the faintest support for an inference that had the state argued Teague

in their petitions for certioran in those cases that Teague would have been applied. In fact, in

both of those cases, this Court held that the state had waived Teague.

Moreover, Petitioner ignores the entire history of decisions of this Court holding that

Teague cannot be raised for the first time on petition for certiorari. This court has repeatedly

found waiver of Teague based on the failure of the state io raise Teague in the lower federal

courts, and then again on appeal. Schiro v. Farley, supra, 510 U.S. 228 [the state can waive

Teague by failing to make the argument in a timely fashion; court declined to apply Teague when

it was raised for the first time only after certiorari was granted]; Godinez v. Moran, 509 U.S. 397

(1993), Gilmore v. Taylor, 508 U.S. 333, 339-340 (1993) [suggesting that the proper trme to

raise Teague is in the district court); Collins v. Youngblood, 497 U.S. at 41; Hopkins v. Reeves,

524 U.S. 88, 94 [the Court declined to address Teague and instead decided the case on the merits

because the state "raised the (Teague) argument for the first time in its petition for certiorari");

Goeke v. Branch, 514 U.S. 115; see also Agard v. Portuondo, 159 F.3d 99 [court of appeals

would not exercise discretion to hear Teague argument when the argument was raised for the first

time on Petition for Rehearing]. By failing to raise Teague in the district court and on appeal in

ora! argument, Petitioner has waived their nght to now raise Teague.

Petitioner also argues that comity is a reason that this Court should consider applying

Teague in this case. However, this argument fails. General policies of finality and comity are the

reasons the court has discretion to even consider applying Teague in the first place in the face of

waiver by the state. Such general underlying policy reasons do not amount to specific reasons

why the court in rhis case, should consider exercising its discretion in favor of applying Teague.

Those considerations exist in all Teague-waiver cases and are no more weighty in this case. The

reasons for not applying Teague in this particular case, however, are numerous.

First, consistent with the general approach in civil litigation with regard to waiver and

claim forfeiture, and in criminal cases with regard to procedural requirements imposed on

defendants, the state, like any other litigant, loses a defense if it fails to raise it. In addition to the

policy reasons supporting a finding of waiver when the state fails to argue Teague (such as

providing the court and opposing party ample opportunity to consider the issue and injustice that

could result to the other party from reversing a decision when Petitioner had numerous

19

opportunities to raise Teague and failed to do so), there is the additional, more cynical possibility

that Petitioner intentionally failed to raise Teague in the hopes of obtaining a favorable

determination on the merits, and in the event of a finding that was adverse to its interests, raising

Teague at that point. Wainwright v. Sykes, 433 U.S. 72, 89 (1977); Granberry v Greer, 481

U.S. 129, 132 (1987) ["unwise to adopt a rule that would permit, and might even encourage, the

State to seek a favorable ruling on the merits in the district court while holding a ... defense in

reserve for use on appeal if necessary"}; Lyons v. Stovall, 189 F.3d 346.

Absent compelling circumstances, the state should not receive any special treatment and

. Should be held to the same procedural standards as other litigants. The appearance of justice is

compromised when the court steps into the role of the state and applies a defense which the state

has repeatedly waived. Moreover, it is particularly unfair for this Court to consider applying

Teague when two courts below have found that a constitutional violation occurred, and, in fact,

Petitioner makes no attempt to argue that the decision on the merits was wrong. Although

Teague is driven in part by considerations of comity, comity also requires that “states not agree to

expending substantial amounts of time on the merits of a case, only to argue belatedly that the

merits have not been reached." Agard v. Portuondo, 159 F.3d 98, 100; Boardman v. Estelle, 957

F.2d 1534-37 (9th Cir. 1992). When the court can allow a procedural default to result in a

person's execution (see e.g. Smith v. Kemp, 715 F.2d 1459 (11th Cir. 1983)), it can allow a

default to stand in this case where Petitioner knowingly, when repeatedly given the option to do

so, failed to raise Teague. “This Court has fashioned harsh rules of waiver and claim forfeiture

to defeat substantial constitutional claims." Caspari v. Bohlen, 510 U.S. 397. If the court is to

apply such a harsh approach to waiver in habeas corpus litigation, it should hold Petitioner to the

same standard in this case. /bid. “Finality, and its companion, waiver, must run along a two-way

street." Williams v. Dixon, 961 F.2d 457 at 459 (4th Cir. 1992). Given the circumstances of this

case, and in particular, Petitioner’s failure to raise Teague in the district court and on appeal, the

court of appeals properly exercised its discretion in deciding not to apply Teague.

Even if there was a Teague issue in this case (and if there was, Petitioner repeatedly

waived it), this is the not the case in which to now apply it. First, Petitioner never raised Teague

until their Petition for Rehearing and for Certiorari, and to this day, Petitioner still has not given

20

any explanation for their failure to raise Teague. Second, Petitioner does not even claim to

dispute the California Supreme Court's finding of error or the merits of the court of appeals’

finding. Since Petitioner apparently accepts those findings as correct, Petitioner cannot argue

that there is a comity problem. Third, the instruction given to the jury at trial conflicts so directly

with the approved jury instruction, that it is highly unlikely that this issue will ever reappear.

For all of these reasons, this case is wholly inappropriate for certiorari review. This Court should

deny Petitioner's application for grant of writ of certiorari review.

Respectfully submitted,

LYNNE S. COFFIN*

STATE PUBLIC DEFENDER

FOR THE STATE OF CALIFORNIA

221 Main Street, 10" Floor

San Francisco, CA 94105

(415) 904-5600

DENISE KENDALL

775 East Blithdale, No. 530

Mill Valley, CA 94941

(415) 384-0281

*Counsel of Record for Respondent

ROBERT FREDICK GARCEAU