# Opposition Brief — Woodford v. Garceau

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0569%3A04

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2003
- **Citation:** 538 U.S. 202

## Text

» wood

‘2

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
PCCD: Scgccbovdcuceedcdcqustccenccnccccesccesecoccceqsceues 1
EE 66050606 cccecccecscdccncseusocccéucscecsedcceeseces 2
ee CE CED aGecochecncccevcccuccessscesecenacsoucceses 3

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
ST ncn ectebedennthdcdastucadencecsRsdheuusdecedeussses 3

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
DT vib6cceeednbetess donenatdeseeeanetéencensens 4
The Circuit Court of Appeal Correctly Decided, In Accordance With The
Prior Decisions Of This Court, That This Case Was Pending Before The
rE ¢occd seucccesececenssetesueeeueososs 5

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

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 ........ 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

il

TABLE OF AUTHORITIES
Agard v. Portuondo
PEE GA GED cccccenectccccdececsdéddsecusueeueecesnasenese 15, 18, 19
Blankenship v. Johnson
Pe EEE BOGE oceccecosccencenecenesocescccensceenseeneccecesecece 15
Boardman v. Estelle
Fe Fees SEG COEED ce cccccccecccccéccececcecseeceeveseccéoossoccsooeee 19
Calderon v. Kelly
BED FBS TED Coe. FORE SUED oo cc ccccccccccccccccccescesccccccccsececes 3, 5,6
Caspari v. Bohlen
PE SE con cc veccessecocececcseneséneeussecensecesehcesoseses 10-13, 19
Ciak v. U.S.
PS, Gc ce cccccccceceseccencccceceneseusenseeasunesecoesencs 12
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
SPE a ccccccoccncsecnsececosseseseseeendsencceesestubedceveaeuns 18
Godinez v. Moran
FP SE Ec ccccccccccnceencsucescescesencedudsbtonestackeeneeeeoeoases 18
Goeke v. Branch
SOO TS. BES CISTI GUIMED o oo w cccccccccccccccscaccccscccccssoscococesecs 14, 18
Granberry v. Greer

Ge es CPEs cccccccecccccccccscccascnneddseccesecencenssasuneneuteener 19

Hohn v. U.S.

EE cnecondscevencendduncessbesseutédeddbeocsnsetdsvedeubocaeedie 9
Hopkins v. Reeves
icécctsccdudenedesovedacicsutzocséessusttenteessdeensenel 11,18
Horn v. Banks

SUED 6b ciccesecceckeuenecdnde0nsssenueseénoces 10, 11-13
Jackson v. Johnson

ED oo wendsbnccduscadeubdesecasouseedacsesedssuessnaed 15
Keene Corp. v. United States :

SD Sc nndecsocascdudedecendescodesieckddatescsésennaebenneeudand 8
Kelly v. Calderon

Fe es SEE co ccccncnnccccceccécnccsedecstésecbéesocseccescedecoanced 3,6
Lindh v. Murphy

Be EE va ndnacceccecuscecetésewdusassvacedensesendbaedeussusenes 6, 8,9
Lyons v. Stovall

SS EEE oc coeccdvdnadeccocésecedecedueeéedcensenseeses 14, 15, 19
Martin v. Hadix

ey Pe oh cs ceccecndetenetscédéddceddcdéecesinedsasesiseusesasadened 9
McFarland v. Scott

Pe Nn whd6odécvctdbscdndendencseedseedsdscssebadaeseennnenenen 5-8
Penry v. Lynaugh

Se ieccetnédccdéucutctecéussnccesssasccenéoudasaneebennceiened 12
Saffle v. Parks

ee Es odécduccaccccceccsecesensénnssensesssecedseneddseesnanenes 11
Schiro v. Farley

Pe I cecdcccuncdocdetodcounseseséueceecdecbobuoeessies 11-12, 18
Sinistaj v. Burt

in on 0066000005d60000csn5ndsbeses ccettadeeseseeeeoonll 15
Slack v. McDaniel

in ccccccvepensencsesveenenses66esbesdentdsesetuneesnemmel 9

iv

Smith v. Kemp

EE REED Soesecccocseccnnceccecesesceeretaseseunebsaieosses 19
Spazino v. Singletary

ED SEED vavectcccessedcocednsondsecteonedscsokecebdeesoeess 12
Teague v. Lane

Ds dascendcesknses6eeucedneséscteananedsouaneneduauedsad passim
United States v. Brown

Ans dnedaedeneéedensennasesecbcossoueueneossnanensenssiacsends 9
Wainwright v. Sykes

SS PE écecccecccecccesvesscusncudenceddeubees dueseensadsncntocnens 19
Williams v. Coyle

oe ee ee 5,7
Williams v. Dixon

Pn SE anoosccanccecBecdedsonsecksecusdssudetdessesdsnsasees 19

Wilmer v. Johnson
A a ee ee ee ee ne toe hee 15

i
t

te nd ee

- Oh

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

PRE

as Sr ee ee s
4 . . ae oe

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

eG

wert

ee ES III EINE OMEN - Seo weg gta

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0569%3A04. Public record. Not legal advice.