# Amicus Curiae Brief — Woodford v. Garceau

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0569%3A11

## Record

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

## Text

No. 01-1862

IN THE

Supreme Court of the United States

JEANNE WOODFORD, Warden,
Petitioner,
vs.

ROBERT FREDERICK GARCEAU,
Respondent.

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

BRIEF AMICUS CURIAE OF THE
CRIMINAL JUSTICE LEGAL FOUNDATION
IN SUPPORT OF PETITIONER

KENT S. SCHEIDEGGER
Counsel of Record

CHARLES L. HOBSON

K YMBERLEE STAPLETON

Criminal Justice Legal Fdn.

2431 L Street

Sacramento, CA 95816

Phone: (916) 446-0345
Fax: (916) 446-1194
E-mail: cjlf@cjlf.org

Attorneys for Amicus Curiae
Criminal Justice Legal Foundation

QUESTION PRESENTED

What is the correct triggering event for application of
AEDPA to capital cases?

TABLE OF CONTENTS

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i nce eddudeeeeeshecdoncecesns 4
DEE b babSGESROoasessedocceconcecscccesccecs 5
I
The present case is precisely the kind of decision Congress
intended to prevent by enacting AEDPA ............. 5
Il
A proceeding is “pending” for the purpose of Lindh v.
Murphy when the petition is filed and not before ...... 8
Il

A request for counsel and stay is a “distinct step” from the
actual attack on the judgment, and the two are considered

separately under the rule of Slack v. McDaniel ....... 13
IV
An alternative resolution would be to adopt Justice
O’Connor’s position in McFarland ................ 21
PE S cdeeevedéedassdeceeeetessceaceecesees 25

(iii)

iV

TABLE OF AUTHORITIES
Cases

Ankenbrandt v. Richards, 504 U. S. 689, 119 L. Ed. 2d 468,

SE be EE ob cncccecheccenucuebukekake 23
Baldwin County Welcome Center v. Brown, 466 U. S. 147,

80 L. Ed. 2d 196, 104 S. Ct. 1723 (1984) ..... 10, 11, 12
Brown v. Allen, 344 U. S. 443, 97 L. Ed. 469,

es EN 00 oe web it A 12
Calderon v. Ashmus, 523 U. S. 740, 140 L. Ed. 2d 970,

FRE ne ae ee 23
Calderon v. United States District Court (Beeler),

SD Oe Oe CE GED nc vncccccccacceccccece 13
Calderon v. United States District Court (Kelly),

163 F. 3d 530 (CA9 1998) (en banc) ............ 13, 15
Carey v. Saffold, 536 U.S. __, 153 L. Ed. 2d 260,

UR a 17, 18

Dennis v. Woodford, 65 F. Supp. 2d 1093
A EE = Gh.nctsvennedéus misbenecebisdest 24

Douglas v. California, 372 U. S. 353, 9 L. Ed. 2d 811,
83 S. Ct. 814 (1963)

Estelle v. McGuire, 502 U. S. 62, 116 L. Ed. 2d 385,
Se PEED S kncivetedusdednpaededeus 5, 6, 7

Garceau v. Woodford, 275 F. 3d 769 (CA9 2001) ... 3,6,7

Garceau v. Woodford, 281 F. 3d 919 (CA9 2002) ....... 3
Gilmore v. Taylor, 508 U. S. 333, 124 L. Ed. 2d 306,

Sa EE daveks iy unenidedsietiendioeds 5
Gosier v. Welborn, 175 F. 3d 504 (CA7 1999) ......... 13

Hill v. Lockhart, 474 U. S. 52, 88 L. Ed. 2d 203,

HOGG. Cr. SEB CIGES) 0 cc cccccccccccccccccccces 13
Hohn v. United States, 524 U. S. 236, 141 L. Ed. 2d 242,

118 S. Ct. 1969 (1998) ... 2... ce eee eee eee 10, 13, 15
Holiday v. Johnston, 313 U. S. 342, 85 L. Ed. 1392,

GED. Ca: IDES GIGS) 2 nc cccccccccccccccccccccces 12
In re Connaway, 178 U. S. 421, 44 L. Ed. 1134,

2D G. Ca GSU CIGSE) «ww ccc ccccccccccccccccccces 8,9
In re GTE Service Corp., 762 F. 2d 1024

(D.C. Cir. 1960S) 2.2... ccc cccccccccccccccccccens 21
Isaacs v. Head, 300 F. 3d 1232 (CA11 2002) .... 13, 18, 19
Landgraf v. USI Film Prods., 511 U. S. 244,

128 L. Ed. 2d 229, 114S. Ct. 1483 (1994) ........... 7
Lindh v. Murphy, 521 U. S. 320, 138 L. Ed. 2d 481,

by, Sc % |...) eee 8,14
Lockhart v. Fretwell, 506 U. S. 364, 122 L. Ed. 2d 180,

113 S. Ct. 838 (1993) ...... Suaduentheeaveneneonee 15
McFarland v. Scott, 512 U. S. 849, 129 L. Ed. 2d 666,

114 S. Ct. 2568 (1994) ............ 8, 14, 15, 21, 22, 23
Medina v. California, 505 U. S. 437, 120 L. Ed. 2d 353,

trys Se 1/7), eee 5
Michelson v. United States, 335 U. S. 469, 93 L. Ed. 168,

GDS. Ct. 213 (IDES) ... ww nnn cc ccccccevcccccccnes 5
Moore v. Gibson, 195 F. 3d 1152 (CA10 1999) ........ 13
Murray v. Giarratano, 492 U.S. 1, 106 L. Ed. 2d 1,

109 S. Ct. 2765 (1989) ... 2... ce eee eee eee ene 22

People v. Garceau, 6 Cal. 4th 140, 24 Cal. Rptr. 2d 664,
862 P. 2d 664 (1993) .... 22... ee eee ee ee eee 2, 3, 5,7

Ragan v. Merchants Transfer & Warehouse Co., 337 U. S.

530, 93 L. Ed. 1520, 69 S. Ct. 1233 (1949) .......... 10
Romano v. Oklahoma, 512 U. S. 1, 129 L. Ed. 2d 1,

inn cc ceadadadebeedacieusés 5
Sawyer v. Smith, 497 U. S. 227, 111 L. Ed. 2d 193,

i pncocncadadedskennedbess 7
Slack v. McDaniel, 529 U. S. 473, 146 L. Ed. 2d 542,

Be SBE oc cccccccccccecss 8, 16, 17, 21
Spencer v. Texas, 385 U. S. 554, 17 L. Ed. 2d 606,

ST inna dugecaveseheaneotecseseel 6
United States v. Shipp, 203 U. S. 563, 51 L. Ed. 319,

sks ciincadesodétnceseedsooes 20
United States v. Mine Workers, 330 U. S. 258, 91 L. Ed. 884,

i dtnnctetsdsastéavendesansuee 20
Whitmore v. Arkansas, 495 U. S. 149, 109 L. Ed. 2d 135,

Se ober wcccticisedsessuectnods 12
Williams v .Coyle, 167 F. 3d 1036 (CA6 1999) ..... 13, 15
Williams v. Cain, 125 F. 3d 269 (CAS 1997) .......... 13
Williams v. Taylor, 529 U. S. 362, 146 L. Ed. 2d 389,

Pe Gy SEED orances cttesddbaotes coos 7,8
Woodford v. Visciotti, 537 U.S. _, No. 02-137

ST GED vind 0id Chennonedecabeesorsed ectaut 7

United States Statutes

21 U.S. C. § S4ABLG NAD) «2 nee cccccccccces 14, 21, 25
ae Oh Ga 67> connvecccesbessattecocnente 12

IE a ic citibaiiasidndincsbecalh 12, 17,22

Vii

Pe GOD cc vckoccsovecesenstcesescses 18, 24
TN PPPTVTTT TTT TOT TTT TTT TT TTT Te 14, 22
PERE Sebsosccescsdecdovesesecsuecess 16
ET cbcccvacncsccccccssecccocsces 7,17
NIE nepncccccecocccoeencccessctanes 24
PEED oencsedcoceecvceencceseece 22, 23
Ee EE Sac cc voveevesdinnesdeesescces 24
ey Ob Go CREED cs ccccccescdcdedseccceses 23
Rules of Court
Federal Rules of Civil Procedure3 ...............044. 9
Federal Rules of Civil Procedure 8(a)(2) ........... 10, 12
Federal Rules of Civil Procedure 11 ................. 12
Federal Rules of Civil Procedure 15(a) ............... 22
Rules Governing Section 2254 Cases in the United States
SN IS cc ccccccccccsccccces 10, 12, 17
Rules Governing Section 2254 Cases in the United States
ac cccsecscescsdttascoececs 10
Rules Governing Section 2254 Cases in the United States
EEE oc nkcedsctoedassvccesoccces 10
Rules Governing Section 2254 Cases in the United States
IEE séccccocecdvesscessceseuece 10

viii

Treatises

1 R. Hertz & J. Liebman, Federal Habeas Corpus Practice

and Procedure (4th ed. 2001) ...........055. 12, 13,24
1 J. Moore, Moore’s Federal Practice (3d ed. 2002) ...... 9
1 J. Wigmore, Evidence (Tillers rev. 1983) ............. 5

Miscellaneous

135 Cong. Rec. 24,693, col. 3 (1989) ........ waacties 23
141 Cong. Rec. 15,062, col.2 (1995) ....... 06. eeeees 7

Advisory Committee’s Note on Rule 4 of the Rules
Governing Section 2254 Cases in the United States
PEED cccccvcdectecccsatesceeveosecens 12

Advisory Committee’s Note on Rule 5 of the Rules
Governing Section 2254 Cases in the United States
DE .coccocccesedccesesceseadecesees 10

IN THE
Supreme Court of the United States

JEANNE WOODFORD, Warden,
Petitioner,
vs.

ROBERT FREDERICK GARCEAU,
Respondent.

BRIEF AMICUS CURIAE OF THE
CRIMINAL JUSTICE LEGAL FOUNDATION
IN SUPPORT OF PETITIONER

INTEREST OF AMICUS CURIAE

The Criminal Justice Legal Foundation (CJLF)' is a non-
profit California corporation organized to participate in
litigation relating to the criminal justice system as it affects the
public interest. CJLF seeks to bring the constitutional pro-
tections of the accused into balance with the right of victims
and of society to rapid, efficient, and reliable determination of
guilt and swift execution of punishment.

The present case involves a collateral attack on the final
judgment of a state court based on arguments fully considered
and fairly resolved there, well within the limits in which
reasonable, conscientious judges can differ. By a tenuous

=

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

Both parties have given written consent to the filing of this brief.

extrapolation of this Court’s decisions, the Ninth Circuit
continues to substitute its own, often erroneous, judgment for
such decisions over six years after Congress ordered a halt to
this practice. Such unwarranted attacks on final judgments are

contrary to the rights of victims and society which CJLF was
formed to protect.

SUMMARY OF FACTS AND CASE

On September 6 or 7, 1984, Robert Garceau stabbed to
death his girlfriend, Maureen Bautista, in the presence of her
14-year-old son, Telesforo, in an apartment in Bakersfield,
California. People v. Garceau, 6 Cal. 4th 140, 156, 862 P. 2d
664, 670 (1993). Garceau next murdered Telesforo. Two of
Garceau’s acquaintances, Greg Rambo and Larry Tom Whit-
tington, concealed the bodies inside a bedroom dresser and
transported the dresser to Rambo’s residence in Shandon,
California, where it was buried in Rambo’s back yard under a
layer of fresh concrete. /d., at 156, 862 P. 2d, at 670-671. Five
months after the murders and burial, Garceau murdered Greg
Rambo. Prior to the trial in this case, he was convicted of
murdering Rambo and sentenced to 33 years to life. /d., at 156,
n. 2, 862 P. 2d, at 671, n. 2.

The prosecution’s case relied primarily upon Garceau’s
confessions to several people with whom he worked in the
methamphetamine manufacturing business. See id., at 157, 862
P. 2d, at 671. He killed Maureen Bautista because he feared
that she would “snitch,” and he killed her son because he had
witnessed the murder of his mother. /bid. Numerous witnesses
testified to Garceau’s intense hatred of snitches, including
comments that they deserved to die. /bid.

The defense primarily tried to undermine the credibility of
the witnesses to Garceau’s confessions. See id., at 156, 862
P. 2d, at 671. A large part of this defense was the witnesses’
“odd behavior, complicity, and deception in the aftermath of
Greg Rambo’s murder.” /d., at 163, 862 P. 2d, at 675. There-

3

fore, the defense introduced evidence of the Rambo murder
during its cross-examination of the prosecution’s witnesses.
The trial court instructed the jury that it could consider evidence
of Garceau’s other crimes “ ‘for any purpose, including...
[his] character... .’ ” See id., at 186, 862 P. 2d, at 690
(emphasis omitted).

The jury convicted Garceau on two counts of first-degree
murder and found the special circumstance of multiple murder.
Id., at 155-156, 862 P. 2d, at 670. He was sentenced to death
at the penalty phase. See id., at 156, 862 P. 2d, at 670. The
California Supreme Court unanimously affirmed the conviction
and sentence. It held that the “other crimes” instruction was
error under the state evidence code, but that even if this also
violated due process, the error was harmless beyond a reason-
able doubt. See id., at 186-187, 862 P. 2d, at 692. The court
also rejected Garceau’s habeas petition on the merits. See
Garceau v. Woodford, 275 F. 3d 769, 771 (CA9 2001).
Garceau requested a stay of execution and appointment of
counsel to pursue federal habeas corpus in federal district court
on May 12, 1995. Counsel was appointed on June 26, 1995,
and the habeas petition was filed over a year later, on July 2,
1996, after the effective date of the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA). See id., at 772, and n. 1.

The district court denied the habeas petition and declined to
issue a certificate of probable cause. A divided panel of the
Ninth Circuit reversed, holding that the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA) did not apply
because under Ninth Circuit precedent the petition was
“pending” as of the date that Garceau requested counsel. See
ibid.,n. 1. It also held that the prior crimes instruction violated
due process and that the error was not harmless. See id., at 777.
The Ninth Circuit denied rehearing en banc, see Garceau v.
Woodford, 281 F. 3d 919 (CA9 2002), and this Court granted
certiorari on October 1, 2002.

SUMMARY OF ARGUMENT

The present case is exactly the kind of case in which
Congress decided not to allow the final judgment of a state
court to be overturned in collateral proceedings. The California
Supreme Court carefully considered the merits, applied the
correct law, and reached an entirely reasonable and probably
correct result. Yet the Ninth Circuit substituted its own,

probably erroneous judgment six years after Congress’s
decision.

Under the general rules for commencement of actions, a
habeas corpus proceeding commences and becomes pending
when the petition is filed. Until there has been a statement of
the claims and a demand for relief, the habeas case as such is
not pending.

McFarland v. Scott and Hohn vy. United States do not
require the contrary result. Slack v. McDaniel recognized that
a habeas case is not an indivisible whole. Just as an appellate
case can be different from the district court case for the purpose
of applicability of AEDPA, so can the habeas case proper be
different from preliminary proceedings for appointment of
counsel and stay.

Although it is not necessary to modify McFarland to find
AEDPA applicable to this case, adoption of Justice O’Connor’s
position in that case would simplify the law. In that interpreta-
tion, a district court can appoint a lawyer to represent an inmate
before a petition has been filed, but the case does not begin and
a Stay Cannot issue until the petition is filed. Although Con-
gress did not directly abrogate McFarland in AEDPA, the
wording of the statute in several places indicates Congress’ s
understanding that a habeas case commences with the petition.

ARGUMENT

I. The present case is precisely the kind of decision
Congress intended to prevent by enacting AEDPA.

AEDPA was designed to prevent decisions such as the one
in this case. The Ninth Circuit’s holding centers on an error of
state law, the instruction that the defendant’s other crimes could
be considered by the jury for any purpose. A state-law evi-
dence error does not transform a jury instruction into a due
process violation. “To the contrary, we have held that instruc-
tions that contain errors of state law may not form the basis for
federal habeas relief.” Gilmore v. Taylor, 508 U.S. 333, 342
(1993). Whether state evidence law was violated “is no part of
a federal court’s habeas review of a state conviction.” Estelle
v. McGuire, 502 U. S. 62, 67 (1991). Due process is not a
detailed code of procedure. See Medina v. California, 505
U. S. 437, 444 (1992). Even the admission of irrelevant
evidence does not violate due process. See Romano v. Oklaho-
ma, 512 U.S. 1, 10(1994). Much more is necessary before due
process is violated.

In McGuire, this Court declined to address whether allow-
ing prior crimes evidence to prove a propensity to commit the
charged offense violated due process. See 502 U. S., at 75, n. 5.
In light of McGuire and its progeny, the case for a due process
violation is unclear at best. See People v. Garceau, 6 Cal. 4th
140, 211, 862 P. 2d 664, 708 (1993) (Kennard, J., concurring).
Since propensity evidence, even when improperly admitted, is
relevant to guilt, see, e.g, Michelson v. United States, 335 U.S.
469, 476 (1948); 1 J. Wigmore, Evidence § 58.1, p. 1211
(Tillers rev. 1983), the case for a due process violation from its
improper admission evaporctes. At worst, the prior crimes
evidence poses an excessive risk of prejudicing the defendant
in light of its probative value with respect to guilt. Due process
violations require much more, as this Court has “ ‘defined the
category of infractions that violate “fundamental fairness” very

narrowly.’ ” McGuire, supra, at 73 (quoting Dowling v. United
States, 493 U. S. 342, 352 (1990)).

In Spencer v. Texas, 385 U. S. 554, 563 (1967), this Court
held that other crimes evidence did not violate due process in a
case where the jury was instructed not to consider it as evidence
of guilt on the current charge. The Ninth Circuit relied on
Spencer and two circuit court decisions predating McGuire to
hold that prior crimes evidence without a limiting instruction
like Spencer’s violates due process. See Garceau v. Woodford,
275 F. 3d 769, 774 (CA9 2001). After McGuire, these cases do
not even support the Ninth Circuit’s holding, let alone compel
it. The opinion below is no more than a disagreement with a
unanimous California Supreme Court over the scope of due
process, with California’s high court getting the better of the
argument.

Even if there could be a due process violation, the error is
harmless. Justice Mosk’s concurrence points out that Garceau’s
numerous corroborated confessions eliminate any unconstitu-
tional prejudice from the prior crimes evidence. He contrasts

this case with the “general case” in which such use is prejudi-
cial.

“This, however, is not the general case. On several
occasions and to several persons, defendant confessed that
he committed the charged murders. By evidence both
physical and testimonial, his confessions were corroborated.

“It has been stated that a confession may have an
‘indelible impact’ on the jury, inducing it ‘to rest its
decision on that evidence alone, without . . . consideration
of the rest. (Arizona v. Fulminante (1991) 499 U.S. 279,
313 [113 L.Ed.2d 302, 333, 111 S.Ct. 1246, 1266] (conc.
opn. of Kennedy, J.).)

“If even a single confession may have such an ‘indelible
impact,’ several confessions—as in this case—must
practically compel the jury to return a guilty verdict no
matter what the other evidence says or does not say.”

~~ o
me orm ee

People v. Garceau, 6 Cal. 4th, at 210, 862 P. 2d, at 707
(Mosk, J., concurring) (emphasis in original).

Eleven judges have addressed this claim, and nine have
rejected it. See 275 F. 3d, at 771 (claim denied by District
Court); id., at 781 (O’Scannlain, J., dissenting). When it
adopted AEDPA, Congress rejected the premise that the federal
court of appeals’ answer to a legal question was necessarily
better than the state supreme court’s answer. See 141
Cong. Rec. 15,062, col. 2 (1995) (statement of Sen. Hatch).

On questions of law resolved on the merits in state court,
Congress limited the lower federal courts to correcting judg-
ments that were “contrary to, or an unreasonable application of,
clearly established Federal law, as determined by the Supreme
Court of the United States... .” 28 U. S. C. §2254(d)(1).
There is no clearly established law in this Court’s precedents
creating a federal constitutional rule against propensity evi-
dence. McGuire, 502 U. S., at 75, n. 5, expressly reserved the
question. A decision raising a rule of evidence to constitutional
status is a “new rule,” see Sawyer v. Smith, 497 U.S. 227, 239
(1990), and a rule which is “new” for the purpose of retroactiv-
ity is necessarily not “clearly established” for the purpose of
§ 2254(d)(1). See Williams v. Taylor, 529 U. S. 362, 412
(2000). Because there is no clearly established rule, the
decision of the California Supreme Court cannot be contrary to
or an unreasonable application of a nonexistent rule, and if
AEDPA applies to this case, this claim must certainly be
denied.

Landgraf v. USI Film Products, 511 U.S. 244, 259 (1994)
noted, “Purely prospective application [of a statute] . .. would
prolong the life of a remedial scheme . . . that Congress
obviously found wanting.” The Ninth Circuit has prolonged the
life of the rejected pre-AEDPA remedial scheme to a prepos-
terous duration. It continues to substitute its own judgment for
the careful, considered, reasonable decisions of the California
Supreme Court six years after Congress ordered it to cease and
desist. See Woodford v. Visciotti, 537 U.S. __ (No. 02-137,

Nov. 4, 2002) (slip op., at 5) (“§ 2254(d)’s ‘highly deferential
standard’ . . . demands that state court decisions be given the
benefit of the doubt”). The central purpose of the reform, after
all, was to curb delays. Williams, 529 U. S., at 404. By no
stretch of the imagination could it be thought that Congress
intended that its anti-delay legislation be delayed this long. The
most basic respect for the legislative process requires that
Congress's reforms be applied to this case.

Il. A proceeding is “pending” for the purpose of Lindh y.
Murphy when the petition is filed and not before.

“In Lindh vy. Murphy, 521 U.S. 320 (1997), the Court held
that AEDPA’s amendments to 28 U. S. C. § 2254, the statute
governing entitlement to habeas relief in the district court,
applied to cases filed after AEDPA’s effective date. 521 U.S.,
at 327.” Slack v. McDaniel, 529 U. 8. 473, 481 (2000) (empha-
sis added). The Lindh and Slack Courts understood “filed” to
refer to “the date a petition was filed in the district court.” /d.,
at 482 (emphasis added). This was understood to be the date on
which a habeas case became “pending,” a term Lindh uses
interchangeably with “filed.” See, e.g., 521 U. S., at 323.

In general, a case is commenced and becomes pending
when the moving party files a document which identifies the
claims made and specifies the relief requested. Authority on
this point is somewhat sparse, apparently because it has long
been nearly universally understood that filing a complaint or
equivalent document marks the commencement of a case.

In re Connaway, 178 U. S. 421 (1900) is one of the few
decisions of this Court on when an action begins so as to make
it “pending.”’ Connaway filed a complaint in the Circuit Court
for the Ninth Circuit against Overton, but he was unable to
serve it before Overton died. He then obtained a writ of scire

2. McFarland v. Scott, 512 U.S. 849 (1994) is discussed in part III, infra.

eet - oe. "

facias to substitute the executor of Overton's estate as a party.
Id., at 423. A federal statute authorized the issuance of the writ
“from the office of the clerk of the court where the suit is
pending.” Id., at 425 (emphasis added).

The circuit court granted the executor’s motion to set aside
the scire facias on the ground that no suit had been pending at
the time of Overton’s death because he had not been served.
Connaway applied to the Supreme Court for a writ of manda-
mus.

“When can a suit be said to be ‘in any court of the United
States,” or said to be ‘pending’ therein? Is not the answer
inevitable, from the time the suit is commenced? /t cannot
be pending until it is conimenced, and if it continue until the
death of the ‘plaintiff or petitioner or defendant,’ the
requirements of the section seem to be satisfied.

“Another inquiry becomes necessary — when is a suit
commenced? For an answer we must go to the California
statutes.’ By section 405 of the Code of Civil Procedure, it
is provided: ‘Civil actions in the courts of this State are
commenced by filing a complaint.’ By section 406 sum-
mons may be issued at any time within a year, and if
necessary to different counties. The defendant may appear,
however, at any time within a year. The filing of the
complaint, therefore, is the commencement of the action
and the jurisdiction of the court over the case.” Id., at 427-
428 (emphasis added).

Connaway thus squarely holds that in a court governed by
a commencement rule equivalent to former section 405 of the
California Code of Civil Procedure, a suit is not in the court and
is not “pending” until the complaint is filed. Rule 3 of the

3. Atthis time federal courts adopted the procedural statutes of the states
in which they sat, absent an applicable federal statute. See | J. Moore,
Moore's Federal Practice § |App.100, at | App-4 (3d ed. 2002).

10

Federal Rules of Civil Procedure (“FRCP”) is indistinguishable
from the statute construed in Connaway: “A civil action is
commenced by filing a complaint with the court.” Ragan v.
Merchants Transfer & Warehouse Co., 337 U. S. 530, 533
(1949) held that a suit was commenced under Rule 3 upon the
filing of the complaint, although in that diversity case a
different state rule governed for the purpose of the state statute
of limitations.

The “complaint” in habeas corpus is the petition. Compare
Rule 2(c) of the Rules Governing Section 2254 Cases in the
United States District Courts (“Habeas Rules”) (“specify all the
grounds of relief . . .”) with FRCP 8(a)(2) (“a short and plain
statement of the claim ...”). There are procedures in habeas
corpus to dispose of insubstantial petitions. Habeas Rule 4
provides for prompt examination-of the petition by the district
judge and summary dismissal if it is meritless on its face.
Under Habeas Rule 5, the respondent can answer the petition,
and the answer “ ‘may demonstrate that the petitioner’s claim
is wholly without merit.’ ” Advisory Committee’s Note on
Habeas Rule 5 (quoting Developments in the Law—Habeas
Corpus, 83 Harv. L. Rev. 1083, 1178 (1970)). In that event, the
petition can be denied without an evidentiary hearing. See
Habeas Rule 8(a).

None of the procedures for “disposition of the petition,” see
ibid., can be invoked until there is a petition. Until a claim of
illegal detention and a demand for release (whether conditional
or unconditional) have been stated, the essence of a habeas case
is missing, i.e., “a proceeding seeking relief for . . . wrongful
detention in violation of the Constitution.” Hohn v. United
States, 524 U.S. 236, 241 (1998).

Baldwin County Welcome Center v. Brown, 466 U. S. 147
(1984) (per curiam), illustrates the minimum requirements to
commence a case. In Baldwin County, would-be plaintiff
Brown claimed discriminatory treatment by her former em-
ployer, the Welcome Center. After exhausting administrative
remedies with the Equal Employment Opportunity Commission

(EEOC), she had 90 days to bring a civil action. /d., at 148.
Six weeks later, Brown filed a copy of her EEOC “right-to-sue
letter” with the District Court and requested counsel. The
magistrate mailed her the required form and questionnaire and
reminded her of the deadline. Brown returned the questionnaire
on the 96th day after the right-to-sue letter. She filed an
“amended complaint” on the 130th day, 40 days past the
deadline. /bid.

The District Court held that Brown had forfeited her right
to judicial review by failing to file a complaint within the
statutory time. Specifically, the court rejected the contention
that the copy of the right-to-sue letter could be deemed a
complaint. /d., at 148-149. The Court of Appeals reversed on
the theory that filing the letter “tolled” the statute. /d., at 149.
The Supreme Court reversed. /bid.

First, this Court approved the District Court’s ruling that the
EEOC letter could not be deemed a complaint. This Court
noted that under FRCP 3 an action is commenced by filing a
complaint. The District Court had determined “that the right-
to-sue letter did not qualify as a complaint under Rule 8
because there was no statement in the letter of the factual basis
for the claim of discrimination, which is required by the Rule.”
Id., at 149. Upholding this ruling, this Court rejected the Court
of Appeals’ notion that civil rights plaintiffs were somehow
exempt because of a special solicitude for this class of plain-
tiffs. Jd., at 149-150.

The complaint later filed, this Court went on to explain,
could not “relate back” to the date of filing of the EEOC letter
because that letter did not meet the very minimal requirements
to constitute a complaint.

“Although the Federal Rules of Civil Procedure do not
require a claimant to set forth an intricately detailed
description of the asserted basis for relief, they do
require that the pleadings ‘give the defendant fair notice
of what the plaintiff's claim is and the grounds upon

12

which it rests.’ [Citation.] Because the initial ‘plead-
ing ' did not contain such notice, it was not an original
pleading that could be rehabilitated by invoking Rule
15(c).” /d., at 150, n. 3 (emphasis added).

Baldwin holds, therefore, that notwithstanding the liberal
rules of modern pleading, there are limits beyond which a paper
cannot be considered a pleading which commences a case. A
mere application for counsel, or request for a stay, is beyond the
limit for a habeas corpus petition.

The habeas corpus application or petition is not governed by
FRCP 8 but rather by 28 U. S. C. § 2241 and Habeas Rule 2.
That rule establishes the requirements to commence a habeas
case. It is true, of course, that a “petition for habeas corpus
ought not to be scrutinized with technical nicety.” Holiday v.
Johnston, 313 U.S. 342, 350 (1941). But we are dealing with
essentials here, not niceties. “Liberal as the courts are and
should be as to practice in setting out claimed violations of
constitutional nghts, the applicant must meet the statutory test
of alleging facts that entitle him to relief.” Brown v. Allen, 344
U.S. 443, 461 (1953).

Congress has quite deliberately made the initial pleading
requirements more strict for habeas petitions than for civil
complaints in some respects. Civil complaints are generally
signed by the attorney and usually need not be verified. FRCP
11. Habeas petitions must be verified, 28 U. S. C. § 2242, or
signed under penalty of perjury. See Habeas Rule 2(c). The
rule requires the petitioner to personally sign the petition. /bid.
The statute permits “next friend” petitioners, but only under
very limited circumstances. See Whitmore v. Arkansas, 495
U.S. 149, 163-164 (1990).

In addition, Habeas Rule 2(c) retains “fact pleading” rather
than the FRCP 8 “notice pleading.” Advisory Committee’s
Note on Habeas Rule 4. Even the partisan Professor Liebman,
who calls this requirement “anomalous,” | R. Hertz & J. Lieb-
man, Federal Habeas Corpus Practice and Procedure § 11.6, p.

13

573, n. 3 (4th ed. 2001), grudgingly acknowledges two justifi-
cations for it. “First, . . . , habeas corpus is designed to review
and draws heavily on the record of prior state proceedings . . . .
Second, fact pleading . . . enables courts . . . to separate
substantial petitions from insubstantial ones quickly and
without need of adversary proceedings.” /bid. The second
reason is particularly pertinent here. If the petition fails to state
facts which, if true, would entitle the petitioner to relief, there
is nothing to consider. See Hill v. Lockhart, 474 U.S. 52, 60
(1985); id., at 62 (White, J., concurring).

In summary, there is an irreducible minimum below which
a paper cannot commence a habeas case. It must serve the basic
functions of identifying the claims and their factual basis and of
specifying the relief requested. The first pleading that performs
these functions is the petition.

Ill. A request for counsel and stay is a “distinct step”
from the actual attack on the judgment,
and the two are considered separately under the
rule of Slack v. McDaniel.

In Calderon v. United States District Court (Kelly), 163
F. 3d 530 (CA9 1998) (en banc), the Ninth Circuit held that the
inmate’s filing of a request for counsel and stay was sufficient
to make a habeas case “pending” for the purpose of determining
whether AEDPA applies. See id., at 540. The Ninth Circuit
overruled its precedent to the contrary, Calderon v. United
States District Court (Beeler), 128 F.3d 1283, 1287, n. 3 (CA9
1997), because it believed that Hohn v. United States, 524 U.S.
236 (1998) required this result. See Kelly, 163 F. 3d, at 540.

All of the other circuits to address this issue have reached
the opposite conclusion. See /saacs v. Head, 300 F. 3d 1232,
1239 (CA11 2002); Moore v. Gibson, 195 F. 3d 1152 (CA10
1999); Williams v. Coyle, 167 F. 3d 1036, 1038 (CA6 1999);
Gosier v. Welborn, 175 F. 3d 504, 506 (CA7 1999); Williams
v. Cain, 125 F. 3d 269, 274 (CAS 1997).

14

A few years before Lindh v. Murphy, 521 U.S. 320 (1997)
and the enactment of AEDPA, this Court decided McFarland
v. Scott, 512 U. S. 849 (1994) regarding whether a district court
had jurisdiction to appoint counsel and stay an execution before
a habeas petition was filed. Under 21 U.S.C. § 848(q)(4)(B)
a capital defendant in a post-conviction proceeding under 28
U.S.C. § 2254 or § 2255 has a statutory right to qualified legal
representation. Under 28 U. S. C. §2251, a federal judge
before whom a habeas proceeding is pending has the power to
Stay any related state court proceeding. The lower courts in
McFarland refused to appoint counsel for the defendant.
because, at the time he filed his motion, he had yet to file his
habeas petition. 512 U.S., at 853. This Court reversed, finding
that under § 848(q)(4)(B) a capital defendant has a right to legal
assistance in the preparation of a habeas application and that a
post-conviction proceeding within the meaning of the statute is
commenced when a capital defendant files a motion for
appointment of counsel. /d., at 856-857. Only after addressing
that issue did this Court address whether a federal court has
jurisdiction to stay a related state court proceeding under
§ 2251. This Court read the two statutes together and found
that they use the terms “post conviction proceeding” and

habeas corpus proceeding” interchangeably, and that to
effectuate a capital defendant's right to counsel, once a capital
defendant invokes that right, a federal court has jurisdiction to
enter a stay of execution even before he files a formal habeas
petition. /d., at 858.

McFarland is a decision driven by practical necessities,
both real and perceived. The need to appoint counsel prior to
the filing of the petition is quite real. McFarland notes the
heightened pleading requirements and the procedures for
summary dismissal. 512 U. S., at 856. Undoubtedly, “Con-
gress . . . did not intend for the express requirement of counsel
to be defeated” by the summary dismissal of a pro se petition.
Ibid. McFarland’s stretch of when a proceeding was pending
So as to authorize a stay was further driven by the conviction
that the statutory right to counsel would be “meaningless”

15

unless that power existed before the filing of the petition. See
id., at 857. The validity of this premise is discussed in part IV,
infra, but for now it is sufficient to recognize it as the driving
force behind the decision. Where the reason for a rule ends, the
rule should end. See Lockhart v. Fretwell, 506 U.S. 364, 375
(1993). The dire consequences the McFarland Court feared are
completely absent here, and its strained interpretation of § 2251
should be stretched no further.

Several years after McFarland, this Court decided Hohn v.
United States. 524 U. S. 236 (1998). Hohn held that under
AEDPA, a denial of an application for a certificate of
appealability (COA) constitutes a “case” in the Court of
Appeals which this Court has jurisdiction to review. Id. , at 239.
This Court also rejected an argument that an application for a
COA is a threshold matter separate from the merits which, if
denied, prevents this Court from asserting jurisdiction over the
matter. /d., at 246. Focusing on the latter pronouncement, the
Ninth Circuit interpreted Hohn to mean that pretrial motions for
appointment of counsel and a stay of execution under McFar-
land are threshold matters constituting a “case” in the district
court, thereby commencing a habeas proceeding. Kelly, 163
F. 3d, at 540. This interpretation extrapolates McFarland and
Hohn too far. See Williams v. Coyle, 167 F. 3d, at 1040.

Neither McFarland nor Hohn directly address the issue
presented in this case of when a habeas proceeding is com-
menced for the purpose of determining the applicable law.
Rather, the holdings of those cases simply relate to jurisdiction.
Essentially, under McFarland, a court has jurisdiction to enter
a stay of execution once a motion for appointment of counsel is
filed, and under Hohn, this Court has jurisdiction to review a
denial of an application for a COA. In Kelly, the Ninth Circuit
stretched the holdings of those two cases a step further to find
that when a capital defendant files a pretrial motion for appoint-
ment of counsel, that commences a habeas proceeding so that
a case is “pending,” thereby rendering a subsequent act of
Congress inapplicable. According to the Ninth Circuit, because

16

a case is “pending” when a motion of appointment of counsel
is filed, AEDPA is not applicable even if the actual habeas
petition, which is the only method of attacking the judgment

against the capital defendant, is filed afer AEDPA’s effective
date.

While Kelly’s extrapolation of McFarland and Hohn may
have seemed plausible at the time, it is no longer so after Slack
v. McDaniel, 529 U. S. 473 (2000). The issue in Slack, which
is strongly analogous to the issue in this case, was whether pre-
or post-AEDPA rules applied to an appeal filed pursuant to 28
U.S. C. § 2253 after AEDPA’s effective date in a case where
the defendant’s original habeas petition was filed in the district
court before AEDPA’s effective date. This Court held that
post-AEDPA rules apply to jurisdiction to hear appeals in these
circumstances. 529 U. S., at 481-482.

Slack argued that under Lindh, post-AEDPA rules relating
to applications for a COA did not apply to him because his
habeas petition was filed in the district court before AEDPA
became effective. /d., at 481. The Slack Court recognized that
in Hohn, this Court also applied post-AEDPA law to Hohn’s
appeal even though Hohn’s original habeas petition was filed
before the Act’s effective date, implicitly rejecting Hohn’s
argument to the contrary. See Slack, 529 U. S., at 482 (citing
Brief for Petitioner in Hohn v. United States, O. T. 1997, No.

96-8986, pp. 40-44). Slack made explicit what was implicit in
Hohn:

“While an appeal is a continuation of the litigation started
in the trial court, it is a distinct step. Hohn vy. United
States, 524 U. S. 236, 241 (1998); Mackenzie v. A. Engel-
hard & Sons Co., 266 U. S. 131 (1924)... . Under
AEDPA, an appellate case is commenced when the applica-
tion for a COA is filed. Hohn, supra, at 241. When
Congress instructs us (as Lindh says it has) that application
of a statute is triggered by the commencement of a case, the
relevant case for a statute directed to appeals is the one
initiated in the appellate court. Thus, § 2253(c) governs

17

appellate court proceedings filed after AEDPA’s effective
date.” Slack, 529 U. S., at 481-482 (emphasis added).

Slack recognized that it is not necessary to view all proceed-
ings relating to a habeas petition as an inseparable whole.
Rather, those proceedings are divisible for purposes of the
effective date of AEDPA. In the context of this case, Slack
indicates that although filing pretrial motions for appointment
of counsel and a stay of execution may initiate a “proceeding”
of some kind, the actual filing of the habeas petition, like the
actual filing of the application for a COA, is a “distinct step.’

Slack also recognized that a court must consider the relevant
case before it in order to determine the applicable law. Here,
the statute that provides state prisoners with the right to
collaterally attack criminal judgments via the writ of habeas
corpus is 28 U. S. C. §2254. Thus, only when a state prisoner
files an application for a writ of habeas corpus in federal court
is § 2254 triggered. See 28 U.S. C. § 2254(a) (“The Supreme
Court, a Justice thereof, a circuit judge or a district court shall
entertain an application for a writ of habeas corpus... .
(emphasis added)); see also 28 U. S. C. §2254(e)(1) (“In a
proceeding instituted by an application for a writ of habeas
corpus .. .” (emphasis added)); 28 U. S. C. § 2242 (written
application, statement of facts required); Habeas Rule 2
(petition requirements). Slack ties the applicability of each
statute to the date the petitioner sought relief under that statute.
The COA statute establishes procedural rules and requires a
threshold inquiry into whether the circuit court may entertain an
appeal. “Because Slack sought appellate review two years after
AEDPA’ seffective date, [amended] § 2253(c) governs his right
to appeal.” 529 U. S., at 482. In exactly the same way, new
§ 2254(d) establishes a new prerequisite for a collateral attack
on a state conviction. It should govern any case where the
petitioner first asked the federal court to overturn that judgment
after AEDPA’s effective date.

This Court’s recent opinion in Carey v. Saffold, 536 U. S.
__, 153 L. Ed. 2d 260, 122 S. Ct. 2134 (2002) when contrasted

18

with Hohn and Slack, illustrates that what constitutes a single
case in one context does not necessarily constitute a single case
in another context. In Carey, this Court found that an applica-
tion for state collateral review is “pending,” as that term is used
in 28 U. S. C. §2244(d)(2), from the time between the initial
filing in the trial court on a state habeas petition and the
disposition by the highest state court, including the periods of
time in the middle in which no court was actually considering
the case. /d., 153 L. Ed. 2d, at 268, 122 S. Ct., at 2138. That
was true even with respect to California’s unique system of
filing a separate, original state habeas petition at each step of
the state collateral review process.

In Hohn and Slack, on the other hand, this Court recognized
a distinction between a federal habeas case at the trial court
level and a federal habeas case at the appellate court level. In
that situation, this Court has found that a federal habeas case is
not a single case from beginning to end. Rather, the proceeding
is divisible for purposes of what law to apply. Like Hohn and
Slack, not only is there a divisible point between the habeas
petition filed at the trial court level and an application for a
COA filed at the appellate court level, but there is a similar
divisible point between the time of pre-petition motions and the
filing of the actual habeas petition. By filing a federal habeas
petition, a capital defendant has then, and only then, taken the
relevant step of commencing the process of collateral attack on
the judgment.

Even before Slack, the Ninth Circuit was alone in its
conclusion that a habeas case is “nending” for the present
purpose from the point pretrial motions for appointment of
counsel and a stay of execution are filed. The other circuits
which have addressed this issue had all reached the opposite
conclusion. See supra, at 13. After Slack, the Eleventh Circuit
joined the others. See Jsaacs v. Head, 300 F. 3d 1232, 1242
(CA11 2002). The court in Jsaacs found that neither McFar-
land nor Hohn directed the result advanced by the defendant,
which was that reached by the Ninth Circuit. /d., at 1239.

19

Isaacs found that McFarland was only concerned with inter-
preting and giving effect to two narrow statutory provisions,
and finding that a habeas case is pending from the moment
pretrial motions are filed would be a stretch at best. /d., at
1245. The court also found that Hohn was limited to the
narrow question of jurisdiction. /bid. Thus, the /saacs court
found that although filing a pretrial motion for appointment of
counsel may initiate a “case,” it does not commence a habeas
proceeding under § 2254. Jbid. Instead the court looked to
Slack to find a dividing line between filing pretrial motions and
filing a habeas petition. In doing so, the court stated,

“A motion for appointment of counsel has no relation to the
merits of a habeas petition and does not seek any form of
merits relief from a district court. Such a motion does not
even assure that a habeas case will ever materialize. . . .
Furthermore, the Supreme Court’s opinion in Slack sup-
ports the idea that all proceedings that have any relation to
a habeas petition do not have to be viewed as a unified
whole for purposes of AEDPA. Instead, Slack expressly
recognized that a court, in order to determine the applicable
law, must determine what is ‘the relevant case.’ Slack, [529
U. S.,] at 482, 120 S. Ct., at 1603. We believe that it
follows—from the Supreme Court’s recognition that an
appellate case may be subject to AEDPA even though the
underlying district court proceedings were not—that even
though a motion for appointment of counsel was filed
before AEDPA and was not subject to its provisions, a later
filed habeas petition may nonetheless be governed by the
stricter AEDPA standards that took effect in the interim.”
300 F. 3d, at 1245-1246.

The other circuits reached the same conclusion as the
Eleventh Circuit purely by distinguishing McFarland and
Hohn. The addition of Slack to the analysis makes the conclu-
sion reached by the majority of the circuits even stronger,
refuting the notion that McFarland is controlling.

20

Further strengthening the proposition that pretrial motions
relating to a habeas petition are divisible from the habeas case
itself are United States v. Mine Workers, 330 U. S. 258 (1947)
and United States v. Shipp, 203 U. S. 563 (1906). In those
cases, this Court held that until a court announces its judgment
regarding whether it has jurisdiction over the merits of the case,
it has the authority to grant a stay to preserve the status quo.
The parties must comply with that order or they risk being held
in contempt of court. Mine Workers, supra, at 293; Shipp,
supra, at 573. The defendants in those cases had contended that
if the court lacked jurisdiction over the underlying action, it
also lacked jurisdiction to grant preliminary injunctive relief.
The injunctions were therefore void, the argument went, and
could be disregarded with impunity. See Mine Workers, supra,

at 290; Shipp, supra, at 572. The Court rejected the argument
in both cases.

The rule of Mine Workers and Shipp advances the premise
that distinct portions of a proceeding are divisible for purposes
of what law is applicable. In those cases, the parties were
required to comply with a separate preliminary stay order of the
court until informed otherwise. The question of whether the
court had jurisdiction to review the underlying proceeding is
distinct from the law applicable to the preliminary order. It
thus follows that a preliminary order and a decision on the
merits are distinct. Ifa court can have jurisdiction over one and
not the other, then they need not be “pending” at the same time.

In short, Slack establishes that McFarland and Hohn are not
controlling of the present question. The commencement of a
habeas case should be governed by the same rules that govern
the commencement of any other case. For the reasons stated in
part II, supra, the commencement is the filing of the habeas
petition, and not any pre-filing event.

ee eee

21

IV. An alternative resolution would be to adopt
Justice O’Connor’s position in McFarland.

As discussed in part III, supra, the holding in McFarland v.
Scott, 512 U. S. 849, 858 (1994) regarding prefiling stay
jurisdiction is not necessarily inconsistent with the understand-
ing expressed in Slack v. McDaniel, 529 U. S. 473 (2000), that
the applicability of amended 28 U. S. C. § 2254 depends on the
date of filing of the habeas corpus petition. See id., at 478, 481.
However, a cleaner, simpler, and more consistent definition of
when a case is pending could be formed by adopting Justice
O’Connor’s position in McFarland. Under this view, a single
definition of commencement and pending would apply to both
§ 2251 and § 2254, to both capital and noncapital habeas, and
to habeas consistently with civil cases. See, e.g., In re GTE
Service Corp., 762 F. 2d 1024, 1026 (D.C. Cir. 1985) (no stay
of agency order before petition for review, no petition pending).
At the same time, the legitimate needs of capital habeas
litigation would be met. :

The statutory right to appointment of capital habeas counsel
in 21 U. S. C. § 848(q)(4)(B) can easily be extended to pre-
filing assistance without doing violence to the definition of
when a case is commenced. The words “commenced” and
“pending” do not occur in this statute. It provides, “In any post
conviction proceeding under section 2254 . . . [in a capital
case], any [indigent] defendant . . . shall be entitled to the
appointment of one or more attorneys ....” No great stretch is
required to say that an attorney for the moving party is repre-
senting the party “in” a proceeding while drafting the pleading
that initiates that proceeding. A civil plaintiff would say he has
hired a lawyer to represent him in his lawsuit from the moment
the representation agreement is made, not just after the com-
plaint is filed. Construing representation in a proceeding to
include precommencement representation does less violence to
the statutory language than altering long-established under-
standings of when a proceeding commences, and it achieves the
same practical result.

22

The same is not true of the stay power, however. On its
face, § 2251 applies only when a “habeas corpus proceeding is
pending ... .” Construing this statute to authorize prefiling
stays is inconsistent with the fact that Congress uses different
language to expressly grant such authority when it considers it
necessary. See McFarland, 512 U. S., at 861 (O’Connor, J.,
concurring in the judgment in part and dissenting in part)
(citing 28 U. S.C. §2101(f)); see also 28 U. S. C. §2262(a)).

Nor is there a genuine practical necessity for a prefiling
stay. Given a right to prefiling counsel, “prisoners can avoid
the need for a stay by filing a prompt request for appointment
of counsel well in advance of the scheduled execution.” /d., at
863.

Even if counsel is not appointed until shortly before a
scheduled execution date, filing a federal habeas petition does
not take long. Every defendant has a constitutional right to
counsel on direct appeal, see Douglas v. California, 372 U. S.
353, 357 (1963). Although not constitutionally required to do
so, see Murray v. Giarratano, 492 U. S. 1, 3-4 (1989), every
State except Georgia now provides counsel on state postconvic-
tion review in capital cases. See Appendix A. With an
appellate brief and a postconviction petition both prepared by
counsel, it is no great difficulty to extract the federal claims and
put them in the form of a § 2254 petition.

When the initial petition has been prepared in haste due to
an impending execution, the district court can and should allow
an amendment within a month or two to add any additional
claims unknown or overlooked at first. Petitioner can amend as
of right before the answer. See 28 U. S. C. § 2242 (civil rules
apply to amendments); Fed. Rule Civ. Proc. 15(a). After the
answer, “leave shall be freely given when justice so requires,”
Rule 15(a), which it surely does for a reasonably prompt
amendment to an emergency petition. Even in Georgia, where
there may not have been a counsel-prepared state post-convic-
tion petition, the amendment rule can be applied generously
enough to make up for this deficiency in any case where an

23

impending execution really does give counsel only a few days
to prepare the petition.‘

McFarland “by no means grants capital defendants a right
to an automatic stay of execution.” 512 U. S., at 858. An
attorney who can state a case sufficient to warrant a stay, see
id., at 860-861 (opinion of O'Connor, J.), can also draft a
petition sufficient to preclude immediate dismissal, and then
amend it in a month or two.

It is true, of course, that stare decisis is a particularly
weighty consideration in matters of statutory interpretation
where there has not been “ ‘any intimation of Congressional
dissatisfaction ...."” Ankenbrandt v. Richards, 504 U.S. 689,
700 (1992). This case, however, does not fit neatly into that
category. While Congress has not abrogated the stay portion of
McFarland, it has indicated a contrary view of when a habeas
corpus proceeding commences.

Legislating specifically on the issue of pre-filing stays in
Chapter 154, Congress provided that an execution ™. . . shall be
stayed upon application to any court that would have jurisdic-
tion over any proceedings filed under section 2254." 28
U.S. C. § 2262(a) (emphasis added). The words “would have"
are significant and cannot be ignored. The subsection is carried
forward without substantial change from the Powell Commit-
tee’s pre-McFarland proposal. See 135 Cong. Rec. 24,693,
col. 3 (1989).

If Congress accepted the notion that an application for a
stay is sufficient to commence a § 2254 proceeding, the words
“would have” would not be there. Congress understood, as the
Powell Committee understood, that a § 2254 proceeding

4. Stricter rules apply to cases governed by Chapter 154, see 28 U. S.C.
§ 2263(b\3B); Calderon v. Ashmus, 523 U. S. 740, 750 (1998)
(Breyer, J., concurring), but that chapter also provides for a pre-filing
stay. See 28 U.S. C. § 2262(a).

24

commences and jurisdiction attaches when the petition is filed,
not when a stay request is made.

Congress did not go out of its way to abrogate McFarland
because, in all likelihood, it believed that most if not all capital
habeas cases would be governed by Chapter 154 within a
couple of years. Amending § 2251 to say even more clearly
what it already says clearly enough was simply not considered
important given the expectation that Chapter 153 stays of
execution would shortly vanish from the scene.

Congress similarly tied commencement to the application
in the new statutes of limitation. See 28 U.S. C. §§ 2244(d)(1),
2255, 2263(a). All three unambiguously refer to the § 2254
application or §2255 motion as the filing subject to the
limitation, not any pre-application motions. Only by ignoring
the clear statutory language could a court come to the contrary
conclusion. The Ninth Circuit did not do so in Kelly, see
Dennis v. Woodford, 65 F. Supp. 2d 1093, 1094-1095
(ND Cal. 1999), and apparently neither it nor any other court
has done so since.”

Between Congress's clearly expressed understanding in
§ 2262, the lack of any compelling necessity for prefiling stays,
and the virtues of consistency, the best solution is to simply
abandon McFarland s strained interpretation of “pending.” A
habeas proceeding under § 2254 commences and becomes
pending when the petition is filed and not before.

Simply put, McFarland could have achieved the practical
result needed with a cleaner and simpler approach. Although
it is not necessary to modify McFarland to hold AEDPA
applicable to this case, doing so would simplify one corner of
a notoriously complex body of law. The simple solution is that

5. Hertz and Liebman are unable to cite any cases that actually support
their characteristically expansive interpretation. See | R. Hertz &
J. Liebman, Federal Habeas Corpus Practice and Procedure § 5.2b, p.
268, n. 84 (4th ed. 2001).

25

a habeas case is commenced upon the filing of the petition, but
21 U.S.C. § 848(q) authorizes precommencement appointment
of counsel. A single commencement date, consistent with civil
practice, would then govern stays, application of AEDPA, and
the statute of limitations in all habeas cases, capital and

noncapital.

CONCLUSION

The decision of the United States Court of Appeals for the
Ninth Circuit should be reversed.

November, 2002

Respectfully submitted,

KENT S. SCHEIDEGGER

Attorney for Amicus Curiae
Criminal Justice Legal Foundation

The following statutes expressly provide for appointment of
counsel:

Ariz. Rev. Stat. Ann. §§ 13-4041(B), 13-4234(D) (2000)
Ark. Code Ann. § 16-91-202(a)(1) (Supp. 2001)
Cal. Gov't Code § 68662 (West Supp. 2002)
Colo. Rev. Stat. § 16-12-205 (2002)
Conn. Gen. Stat. § 51-2 /6(a) (Supp. 2002)
Fla. Stat. Ann. § 27.702(1) (1997)
Idaho Crim. Rules 44.2 (2002)
725 Ill. Comp. Stat. Ann. § 5/122-2.1(a)(1) (1993)
Ind. Code Ann. § 33-1-7-2(a) (1995)
Kan. Stat. Ann. § 22-4506 (Supp. 2001)
Ky. Rev. Stat. Ann. § 31.110(2)(c) (Banks-Baldwin 2001)
La. Rev. Stat. Ann. § 15:149.1 (West Supp. 2002)
' Md. Crim. Pro. Code Ann. § 7-108 (2001)
Miss. Code. Ann. § 99-39-23(9) (2002)
Mo. Sup. Ct. Rule 29.15(e) (2002)
Mont. Code Ann. § 46-21-201 (2001)
Nev. Rev. Stat. Ann. § 34.820 (2002)
N. H. Rev. Stat. Ann. § 604-A:2 (Supp. 2002)
N. J. Stat. Ann. §2A:158A-5 (West 2002)
N. M. Stat. Ann. §§ 31-11-6, 31-16-3 (2002)
N. Y. Jud.. Law § 35-b (McKinney 2001)
N. C. Gen. Stat. § 7A-451(a)(2) (2001)
Ohio Rev. Code Ann. §§ 120.16, 120.26 (2001)
Okla. Stat. Ann. Tit. 22, § 1355.6(B) (Supp. 2003)
Or. Rev. Stat. § 138.590 (2001)
Pa. R. Crim. P., Rule 904, Pa. C. S. A. (Purdon 2001)

A-2

S. C. Code Ann. § 17-27-160(B) (Supp. 2001)

S. D. Codified Laws § 21-27-4 (1997)

Tenn. Code Ann. § 40-30-207 (1997)

Tex. Crim. P. Code Ann. § 11.071(2)(a) (2002)

Utah Code Ann. § 78-35a-202 (2002)

Va. Code Ann. § 19.2-163.7 (Supp. 2002)

Wash. Rev. Code Ann. § 10.73.150 (2002)

Wyo. Stat. § 7-6-104(c)(ii) (2001)

The follow.ng statutes are discretionary on their face, but

the attorneys general of the respective states inform us that the
practice is to always appoint counsel in capital cases:

Ala. Code § 15-12-23(a) (Supp. 2001)
Del. Superior Ct. Crim. Rule 61(1)(3) (2002)
Neb. Rev. Stat. Ann. § 29-3004 (Supp. 2001)

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0569%3A11. Public record. Not legal advice.