Opposition Brief — In Re Stanford

Supreme Court brief2002

Ask Donna

What actually matters in this document.

Text

ORIGINAL rier

No. 01-10009 4) JUN 6 250:

IN THE SUPREME COURT OF THE UNITED STATES ans:

ee

October Term 2001

IN RE KEVIN N. STANFORD PETITIONER

On petition for Writ of Habeas Corpus

BRIEF FOR RESPONDENT PHIL PARKER, WARDEN,

IN OPPOSITION

TO PETITION FOR WRIT OF HABEAS CORPUS

Respectfully Submitted,

ALBERT B. CHANDLER III

ATTORNEY GENERAL OF KENTUCKY

*DAVID A. SMITH

ASSISTANT ATTORNEY GENERAL

IAN G. SONEGO

ASSISTANT ATTORNEY GENERAL

CRIMINAL APPELLATE DIVISION

1024 CAPITAL CENTER DRIVE

FRANKFORT, KENTUCKY 40601-8204

(502) 696-5342

* Counsel of Record

~~ ee

wre

CAPITAL CASE

COUNTERSTATEMENT OF QUESTION PRESENTED

DOES THE EIGHTH AMENDMENT EXEMPT

FROM CAPITAL PUNISHMENT ALL MURDERERS

WHO WERE UNDER THE AGE OF EIGHTEEN

YEARS WHEN THEY COMMITTED THEIR

CRIMES? .

TABLE OF CONTENTS

COUNTERSTATEMENT OF QUESTION PRESENTED ....................

I a0 sib udu curkcassGadvaed ons fabudha eck chases i

TABLE OF AUTHORITIES «2... 2.0.0.0. ii

I i cet hxc tue cate leo Gch t eetitciot so ys

REASONS FOR DENYING THE WRIT...................... 0000000005. 16

THE CLAIM PRESENTED IN STANFORD'S HABEAS PETITION

IN THIS COURT IS BARRED BECAUSE IT CONSTITUTES A

SUCCESSIVE HABEAS PETITION AND WAS FILED OUTSIDE

THE STATUTORY ONE YEAR TIME LIMIT. ............... 16

PETITIONER HAS NOT DEMONSTRATED A NATIONAL

CONSENSUS OPPOSING THE CAPITAL PUNISHMENT OF 17-

YEAR-OLD MURDERERS, NOR HAS HE DEMONSTRATED

THAT HIS CASE IN STANFORD V. KENTUCKY, 492 U.S. 361

(1989) WAS WRONGLY DECIDED. ........................ 18

TREATIES TO WHICH THE UNITED STATES HAVE MADE

EXPLICIT RESERVATIONS CONCERNING THE EXECUTION

OF JUVENILES DO NOT DESERVE ANY CONSIDERATION BY

UE 5 650 60060-66040 66408 56 voce hsncdsSs0eesenees 24

CONCLUSION ...... oN On dRndnetes Cqeteeebhetebenecanudéucsusabunal 32

EE ibn hus gags anabaubueeSnuss baabaevueaeees kacen 33

TABLE OF AUTHORITIES

Cases:

Stanford v. Commonwealth, Ky., 734 S.W.2d 781 (1987) 2.0.0.0 0 000000... passim

SE GE, GED vo cb eecorcesbees cepet wen seeneeanee passim

Stanford vy. Kentucky, 492 U.S. 36 DERE » ease kandoedeteeendvonnuees _. passim

Stanford v. Commonwealth, Ky., 854 S.W.2d 742 (1993), cert. denied,

FRR re re passim

Stanford v. Parker, Ky.App., 949 S.W.2d 616 (1996) ©... 2... eee -.. passim

Stanford v. Parker, 266 F.3d 442 (6th Cir. 2001)... 6. een passim

Austin v. Hopper, 15 F. Supp.2d 1210, 1260 n.222 (M.D. Ala. 1998) Over rn 28

Ranier vy Feats, S65 U.S. SSD, SSO CITES) 2. wc cccccccsvvcvcesesccescsees 18

Barefoot v. Estelle, 463 U.S. 880, 887-888 (1993) . 2... cee eee 16

Beazley v. Johnson, 242 F.3d 248 (Sth Cir. 2001)... 2... eee 24, 26, 28

GOD 6 6-460 6040 edsee tend see epaeueeeraeanl 27

Bousley v. United States, 523 U.S. 614, 623 (1998) 2... 6.6 eee eee 16

Buchanan v. Commonwealth, Ky., 691 S.W.2d 210 (1985) ............0.0..0055. 12

Buchenen vy, Kentucky, 463 U.S. 402 (1967)... ccc cece cc ec ccsvcscvccces 12

Buell v. Mitchell, 274 F.3d 337, 371-376 (6th Cir. 2001)... 0... eee eee 24

Calderon vy, Thommeon, 523 U.S. 538, (1998) . 0... ccc cee cece eevee 15, 16

ne Ee GP Gas SOO EUEETD oc ccveuseccussucecssccocksaseuanens 18

California v. Ramos, 463 U.S. 992, 1008 (1983) 2... 6. cc cee eee ee 18

Caminetti v. United States, 242 U.S. 470, 485 (1917) ©... cee 31

Chan v. Korean Air Lines, Ltd., 490 U.S. 122, 135 (1989) ...... 0.0.0. 000. ae

iil

7s

Domingues v. State of Nevada, 961 P.2d 1279(Nev. 1998), cert. denied,

re ee eee ca aed abeeeebaeeres es .. 23.29

i , CPGED oS ccccccccccccessecececeses ligne

Eastern Airlines, Inc. v. Floyd, 499 U.S. 530, 534(1991) ............... ace

Ex parte Burgess, Jr., 811 So.2d 617, 628- 629 (Ala 2000) ...........: Fauaands 29

Ex parte Pressley, 770 So.2d 143, 148 (Ala.), cert. denied,

ee ieee ee occ csdveréecteobeesees 23, 28

Eons vy. Micheal C.. 442 U.S. 707, 734, 0.4 (1979)... cc cee cence 18

Felker v. Turpin, 518 U.S. 651, 664-664 (1996) ... 00. cee, 15

Eoster v. Neilson, 27 U.S. (2 Pet.) 253, 314 (1829) ... 0.0... ccc eee 30

EE 20

Gregg v, Georgia, 428 U.S. 153 (1976)... 00. cece ccc ceeccceecee 18, 19

Hain v. Gibson, 287 F.3d 1224, 1242-1244 (10th Cir. 2002) ................ ioe ae

Hawkins v. Comparet-Cassani, 33 F. Supp.2d 1244, 1256-57 (C.D. Cal. 1999)rev. in part

on other grounds, 251 F.3d 1230 (9th Cir. 2001)... 0. eee eee, woe

ao. os ac eencendebeteredees 13

In re The Amiable Isabella, 19 U.S. (6 Wheat) 1, 71,5 L. Ed. 191 (1821) .......... 31

Jama v. LN.S., 22 F. Supp.2d 353, 365 (D.N.J. 1998)... 0... cece ee 30

Jamison v. Collins, 100 F.Supp.2d 647(S.D. Ohio 2000), affd. on other grounds,

2002 U.S. App. LEXIS 97026 (6th Cir. May 23, 2002). .... 2.26... eee ce eee, 25

McCleskey v. Zant, 499 U.S. 467, 498 (1991) 0 ccc cee eee 16

Roberts v. Louisiana, 428 U.S. 325 (1976) ... 2... ccc eee nuns 18

I ey See OS. SED, TED (ISTE) own ccc ccccccccccccccccccceces 16

EE EE ee 16

Thompson v. Oklahama, 487 U.S. 815 (1988)... cece ee, 18, 20, 22

iv

Tison vy. Arizona. 481 U.S. 137, 158 (1987) ..... 0... eee eens we wale ae

Tyler v. Cain. 533 U.S. 656, 668 (2001) ... 2. cece eee, —e

Uniroyal Chemical Co., Inc. v. Deltech Corp., 160 F.3d 238. 244 (Sth Cir.1998) ..... 31

United States v. Duarte-Acero, 208 F.3d 1282, 1285 (11th Cir. 2000)....... ...

United States v. Percheman, 32 U.S. (7 Pet.) 51 (1833) .............. ianeaauee

United States v. Postal, 589 F.2d 862, 875-76 (Sth Cir.), cert. denied,

I oo os ds ae nad deed dedesndendeaes) tneneeeel . 0

Volkswagenwerk Aktiengeselischaft v. Schlunk, 486 U.S. 694, 699 (1988) ......... W

White V_ Johnson, 79 F.3d 432, 440 & n.2 (Sth Cir), cert. denied,

ES << uuu ul dideen ceeded aaa Gaee neatbbaeeeds ed adene 28

Woodson v. North Carolina, 428 U.S. 280 (1976) .. 2... occ ccc cee ec ees 18

i SE CE PEEEED 2 <6 ccvccncevshncedescesscenesses 18

Constitutional Provision:

Fifth Amendment to the Constitution of the United States ........ 2... .....00... 25

Eighth Amendment to the Constitution of the United States............... 23, 24, 25

Fourteenth Amendment to the Constitution of the United States ................. 25

Federal Rules of Procedure:

Dh‘ ccc@rcdundendéuedhdeaaatashentetedsaduduecieesieannets 14

State Rules of Procedure:

Kentucky Rule of Criminal Procedure (RCr) 11.42 ©... 2.66 cece ee 13

Federal Statutes:

I i ss oss once annsesbduenededdemansaes 15

oo. sc ocnenesndectctsdnenesedeeneeuusans 15

i se ce hese ke beneeedgaaaanue 16

cnc encccehécees cuedebeaqenendesebouneouenet 16

IIE . « ps vaeescecnceneeceseeesdecuseeouses 16

Vv

— nnn eee

State Statutes:

EE gi | oo) oe diiad ab ebianucddsheeae ian 12

a a id eg ed a ie dle i es eae 11

Publications:

International Covenant on Civil and Political Rights (ICCPR), Articles 1-27 ........ 29

International Covenant on Civil and Political Rights, Article 6, Para. 5 ... 23, 24, 25,31

International Covenant on Civil and Political Rights, Article7 ................... 25

re Be Be, Fe oc cc ccccccccceseccscccsescs 24, 25, 29, 30

Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions,

MISSION TO THE UNITED STATES OF AMERICA, Jan. 22, 1998, E/CN.4/1998/68/ Add. 3,

para. i ntcesodensatenesaeacs Pocececeeeeeesecocceceeeseeeeseeseseoes 26

The Abolition of the Death Penalty: Does “Abolition” Really Mean What You Think It

Means?, 6 IND. J. GLOBAL LEGAL STUD. 721, 726 (1999) .. 2.2... 66 cece, 29

General Comment 24, General Comment on Issues Relating to Reservations Made upon

Ratification or Accession to the Covenant or the Optional Protocols Thereto, or in

Relation to Declarations Under Article 41 of the Covenant, U.N. GAOR Human Rights

Comm, 52d Sess., #1 5, 6, 8, 18, U.N. Doc. CCPR/C/21/Rev. 1/Add/6 (Nov. 1994) .. 26

No. 01-10009

IN THE SUPREME COURT OF THE UNITED STATES

October Term 2001

IN RE KEVIN N. STANFORD PETITIONER

On petition for Writ of Habeas Corpus

BRIEF FOR RESPONDENT PHIL PARKER, WARDEN,

IN OPPOSITION

TO PETITION FOR WRIT OF HABEAS CORPUS

MAY IT PLEASE THE COURT:

Comes the Attorney General of the Commonwealth of Kentucky as

counsel for Respondent, Phil Parker, Warden of the Kentucky State Penitentiary, and

opposes Kevin Stanford's petition for writ of habeas corpus as follows:

IURISDICTION =

Stanford seeks to invoke the jurisdiction of this Court under 28 U.S.C.

§2241, to entertain his petitions for writ of habeas corpus as an original matter.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Stanford bases his claims on Article 1, Section 8, Clause 10, Article II,

Section 2, Article III, Section 2, Article V1, Section 2, and on the Eighth and Fourteenth

Amendments to the United States Constitution.

Stanford also relies on the International Covenant on Civil and Political

Rights, the Convention on the Rights of the Child, and the American Convention on

Human Rights.

Respondent references 28 U.S.C.§2244 and §2254, which are set out

verbatim in the Appendix to this bref.

COUNTERSTATEMENT OF THE CASE

Nature Of The Case

Petitioner Kevin N. Stanford abducted, sodomized and murdered a gas

station attendant during the course of an armed robbery on January 7, 1981. The victim,

20-year-old Barbel C. Poore, was working nights at a Checker gas station in Louisville to

support her infant daughter. Stanford shot the victim in the face from point-blank range

as she sat in the back seat of her mother’s car, then completed the execution with a

gunshot to the side of the head. Stanford punctuated the crime spree by leaving the

victim’ s corpse in a “mooning” position, kneeling face-down on the rear floorboard of her

mother’s car, with her blue jeans and panties down around her ankles, and her buttocks

elevated.

Weeks later, Stanford was stil] boasting and laughing about what he had

done to Barbel Poore. This Court quoted some of Stanford’s boastful remarks m its

opinion affirming Stanford’s death sentence. Stanford v. Kentucky, 492 U.S. 361, 365

(1989).

Following a trial by jury, Stanford was sentenced to death and 45 years in

prison for Murder, First-Degree Sodomy, First-Degree Robbery, and Receiving Stolen

Property Over $100. Stanford's defense team had called 14 witnesses to testify in

mutigation of punishment.

Counterstatement Of The Facts

The victim in this case, Barbel C. Poore, was 20 years old when Stanford

killed her. She worked nights as an attendant at the Checker gas station on Cane Run

Road in Louisville to support her | 1-month-old infant daughter. (R.55 State Record, Det.

Tangel, Elbert Sanders, George Boller, at TE Ill, 399; TE VII, 942, 947; TE X, 1397).

The night Stanford murdered her, January 7, 1981, was to have been the first time

Barbel’s parents would allow her to drive home from work by herself. (R.55 State

Record, Det. Tangel, TE II], 398, 405). Earlier that day Barbel had borrowed her

mother’s car, a green Chevrolet Impala. ( Id. at, TE Ill, 399, 405). Barbel was supposed

to close the Checker gas station at 8:00 p.m. and leave at 8:30 p.m. upon completion of

her administrative duties. (Id. at, TE III, 399-400).

Stanford lived in the apartment cornplex next door to the Checker station.

(R.55 State Record, Det. Tangel, Det. Hall, TE Ill, 407-408; TE IV, 475). Stanford had

conversed with Barbel and her parents on several occasions.

On January 7, 1981, Stanford and his friends David Buchanan and Troy

Johnson planned an armed robbery of the Checker station. (R.55 State Record, Troy

Johnson, TE VII, 1029-1033, 1047). Shortly after 6:00 or 6:30 p.m, Johnson drove

Buchanan to Stanford's apartment. (Id., at TE VII, 1032-1033). Stanford took off his

hat, ear muffs, and jacket and placed them inside Johnson's car before accompanying

Buchanan into the Checker station. (Id., at TE VII, 1033-1034). Johnson insisted on

remaining outside, in his car, because he was afraid somebody was going to get hurt with

the gun being used to commit the crime. (Jd., at TE VII, 1031).

Johnson waited outside in his car for approximately 30 minutes, when

Buchanan returned with-a two-gallon can of gasoline and placed it in the back seat of

Johnson's car. Buchanan instructed Johnson to continue waiting, then returned to the

Checker station for another 15 minutes. (Id., at TE VII, 1034-1036; TE VIII, 1053).

Barbel Poore was robbed, raped, orally sodomized, and anally sodomized

during that 45-minute period of time. Buchanan would later confess to the police that he:

... Went into the restroom and [Stanford] was having

intercourse with the service station attendant and they were

standing up. He said that the clothes were off of the service

station attendant from the mid section down, but that she did

have her top on. He stated that he and [Stanford] then put the

service station attendant on the floor and they each took turns

raping and sodomizing' the service station attendant on the

floor of the restroom. (R.55 State Record, Det. Hall, TE IV,

485).

Buchanan eventually returned to Johnson's car a second time and

instructed him to follow Stanford, who was driving the victim’s mother’s green Chevrolet

Impala with the victim inside that car. While they were following Stanford, Buchanan

told Johnson that he “had sex with her’’ and that he was going to “have some more sex

with her.” (R.55 State Record, Troy Johnson, TE VII, 1035-1037). After both cars

"Stanford told a corrections officer that he “made her suck his dick and then he

came about saying, “We fucked her in the booty’... .” (R. 55 State Record, M. K.

Nalley, TE VIII, 1080). “*I had to shoot her, the bitch lived next door to me.”” (Id., at

1082). “At that time, Mr. Stanford began laughing... .” (Id.). This Court referred to

Stanford’s boastful laughter in its opinion affirming his death sentence. Stanford v.

Kentucky, 492 U.S. 361, 365 (1989).

stopped, Buchanan got out and told Johnson to put the gasoline into the tank of his car.

Buchanan walked over to the victim’s car where Stanford was standing. (ld. ).

Stanford allowed Barbel Poore to smoke a last cigarette. (R.55 State

Record, Det. Hall, Troy Johnson, at TE IV, 486; TE VII, 1037). Stanford executed the

victim immediately. He shot her in the face and in the side of the her head. (R.55 State

Record, Det. Tangel, TE II], 364, 366-368, 372; Apx. 1132, 1134-6, 1140).

When the first shot was fired, Troy Johnson observed that Stanford ‘was

leaning in toward [the victim's] car” and that Buchanan “was coming back toward me.”

(R. 55 State Record, Troy Johnson, TE VII, 1037). When the second shot was fired a few

seconds later, Stanford was stil] leaning inside the victim’s car and Buchanan was still

walking back towards Johnson's car. (Id., at TE VII, 1038).

After hearing the second gunshot, and while backing up his car, Johnson

saw some headlights in his rear view mirror. Johnson stopped his car after almost

colliding with the one that had just happened along. The other car had to stop

momentarily because Johnson’s car was blocking oo street. At that time Johnson saw

Stanford following Buchanan away from the victim's car. Johnson backed into an

apartment complex so that the passerby car could proceed. (Id., at TE VII, 1038-1040).

The passerby car was driven by Amona Dorsey, who later was able to

describe Stanford and Buchanan (R.55 State Record, Amona Dorsey, TE VII, 986-987)

because Johnson’s car had blocked the street “for a few minutes.” (Id., at 985). Kerise

Ison, a passenger in Dorsey’s car, heard the gunshots and became suspicious when one of

the subjects put his head down. (R.55 State Record, Kerise Ison, TE VII, 954-955). The

subject who put his head down was “tagging behind” the other, and he put something

inside his coat pocket. (Id., at 957, 963). Buchanan got into the front seat of Johnson's

two-door car before Stanford caught up and squeezed into the back seat. (R.55 State

Record, Troy Johnson, TE VII, 1040). As they were driving away from the murder scene,

Stanford smiled and asked Johnson if he “wanted to do anything else.” (Id., at TE VII,

1041). When Johnson responded negatively, Stanford tossed the murder weapon onto the

front seat. Johnson dropped Stanford off at the intersection of Shanks Lane and Cane

Run Road, across the street from the Checker station. (Id.).

At 11:30 a.m one of Stanford’s neighbors, Alexis Sloan, observed

Stanford carrying two large boxes of cigarettes away from the Checker station. (R.55

State Record, Alexis Sloan, TE VII, 1003, 1006-1007). Stanford asked Sloan to “hold”

them for him. (Id., at TE VII, 1008). The next day, January 8, 1981, Sloan enlisted the

assistance of Owen Smyzer in disposing of the approximately 300 cartons of cigarettes.

Sloan and Smyzer put them into five extra-large plastic bags before selling them (Id., at

TE VII, i011-1012). Later that day, Stanford told Sloan that the cigarettes were from the

Checker station and that he had “made a play” for them. (Id., at TE VII, 1013-1014,

1022-1023). :

Shortly after 11:00 or 11:30 p.m. on the evening of the January 7, 1981

murder, Barbel’s mother Ingrid Poore and her co-worker Jessie Ortagia stopped at the

Checker station on their way home from work. (R.55 State Record, Jessie Ortagia, TE

VII, 931-932). Mr. Ortagia noticed that the lights and the gasoline pumps had been left

on, which caused him to suspect foul play enough that he attempted, unsuccessfully, to

prevent Mrs. Poore from investigating the scene herself. (Id., at TE VI1, 933). When Mr.

Ortagia saw that the inside of the Checker station had been ransacked, he telephoned the

police: “{I}t looked like . . . a tornado had hit it... . Things were torn every which way.”

(Id., at TE VII, 934). ”

Barbel Poore’s corpse was found insider her mother’s car soon after the

police investigation began. (R.55 State Record, Det. Tangel, TE III, 399-401). Detective

Walter Tangel was summoned by other officers to the murder scene:

[W]e walked up to the driver’s door; the driver’s door was

opened and inside I observed a white female kneeling on the

back floorboards with her upper torso on the back . . . on the

back seat; her head was lying in a pool of blood on the back

seat up against the driver’s side of the car. She was wearing

a green windbreaker with the word bubblegum in the back.

She had her pants, blue jeans and panties down around her

ankles, her buttocks were exposed up in the air. * * * She

was kneeling on the floorboards of the car and her face was

on the seat in the rear-of the car. (Id., at TE III, 401; Apx.

1169).

After police secured both of the crime scenes, Detective Tange] and other

officers attended the autopsy at 10:00 or 10:30 that morning, January 8, 1981. (id., at TE

Ill, 404-405). The forensic pathologist, Dr. George Nichols, found “large quantities of

identifiable spermatozoa” inside the victim’s anus. (R.55 State Record, Dr. Nichols, TE

III, 363). He also observed a traumatic lesion, or contusion, about the left side of the

victim’s anus “with radiating abrasions over the anal mucosa over the entire

circumferential surface.” (Id., at TE Ill, 364). In the opinion of Dr. Nichols, these

injuries were consistent with penile penetration. (Id., at TE III, 365).

Forensic scientist Ruth 3illings observed “a large volume of semen” on

the victim's clothing. (R.55 State Record, Ruth Billings, TE V1, 792). In particular, there

were large volumes of semen on the left sleeve, the front, and the back hem of the

victim’s outer (green) jacket; her inner (red) jacket; her blue sweater; her panties: and on

the back seat of the inside of which the victim's corpse had been found. (Id., at TE V1,

792-793, 796-798, 800, 805-806.)

Three foreign hairs were found on Barbel Poore’s exposed buttocks.

(R.55 State Record, Det. Hash, Ruth Billings, TE IV, 578, 585; TE V, 645; TE V1, 794).

Hairs were also found on her chest and left thigh. (Id., at TE V, 602, 604; TE VI, 795).

With regard to the three foreign hairs found on Barbel Poore’s buttocks, the forensic

scientist found:

One black Negro pubic hair fragment and one black Negro

head hair fragment . . . matches in color and microscopic

characteristics the pubic hair standard of Kevin Stanford . . .

one black Negro pubic hair fragment which matches in color

and microscopic characteristics the pubic hair standard of

David Buchanan. Accordingly, these hairs either originated

from these individuals or from another individual whose

hairs demonstrate the same microscopic characteristics.

(R.55 State Record, Ruth Billings, TE V1, 805; Apx. 1576).

The forensic scientist also identified the hair found on Barbel Poore’s left

thigh as belonging to Stanford. The hairs found on Barbel’s chest belonged to Barbel

herself. (Id., at TE VI, 807).

Police took photographs, measurements, and casts of tire tracks and

. footprints made in the snow surrounding the victim’s mother’s car at the murder scene.

That evidence likewise corroborated the accounts of the events that would later be given

by Troy Johnson, David Buchanan, and Kevin Stanford himself. (R.55 State Record, Det

Hash, TE IV, 571-574, 579-584). |

On the ground scattered along Shanks Lane the police found Barbe]

Poore’s wallet, social security card, driver's license, and other contents of her purse.’

(R.55 State Record, Det. Tangel, Det. Hash, TE III, 425; TE IV, 574-578; TE V, 649-

650).

Detective Joe Hash, who helped the coroner and two other police officers

remove Barbe] Poore’s corpse from her mother’s car and place it inside a body bag,

noticed that she was wearing only one sock. The mate to that sock was found on the

restroom floor at the Checker station. (R.55 State Record, Det. Hash, TE IV, 579, 592).

Stolen were 300 cartons of cigarettes, $143.07 cash, the two-gallon

gasoline can, and two gallons of gasoline. (R.55 State Record, Elbert Sanders, TE VII,

944-946). The two floor safes had been opened. Police found keys to those safes on the _

floor. (R.55 State Record, Det. Hall, Det. Hash, TE IV, 484-485; TE V, 635). Other keys

to the Checker station were found on Stanford’s bedroom dresser. (R.55 State Record,

Det. Hall, TE IV, 474-478).

Early during the investigation, police learned that Alexis Sloan and Owen

Smyzer had gone about the neighborhood selling cartons of cigarettes out of plastic

garbage bags on the day after 300 cartons of cigarettes had been stolen from the Checker

*Barbel’s purse was not found until the following day, when police returned to re-

examine the tracks and prints in the snow. They found Barbel’s purse 18 feet from the

side of Shanks Lane, where the execution had occurred. (R.55 State Record, Det. Hash,

Ingrid Poore, TE V, 607-610; TE VII, 939-940).

9

station next door. (R.55 State Record, Det. Hall, Owen Smyzer, TE IV, 457; TE VII,

997-1000).

David Buchanan corroborated the physical evidence, the accounts of

events given by Troy Johnson, and the boastful statements Stanford made to virtually

anyone who would listen. Buchanan confessed to two police officers:

He stated that the car parked at the end of the road, that he

got out of the car with Troy, walked up to the car. He said,

at that time, the attendant was sitting in the back seat of the

car smoking a cigarette. He said that [Stanford] was

stanc ‘ng just outside the driver’s door with the driver’s door

being open. He didn’t . . . he didn’t remember anything

being said. [Stanford] fired two shots. He said that he

thought that the second one was the one that knocked the

lady over, was the way that he put it. He and [Stanford] then

run back to Troy’s car and they left that area. (R.55 State

Record, Det. Hall, TE IV, 486).

Following Stanford’s arrest and approximately one week after his

execution-style murder of Barbel Poore, Stanford while in protective custody at the

Louisville Juvenile Detention Center sneaked up behind a security guard and put the end

of a pencil against his ear and said, “Click, click, click, just like the girl, I’m going to

blow your fucking brains out.” (R.55 State Record, Richard Reetzke, TE VIII, 1088).

Days after he made the “Click, click, click . . .” statement to the guard,

Stanford again volunteered another statement to a different corrections officer. Michael

Nally was supervising Stanford at the Lovisville Juvenile Detention Center when he

overheard him bragging and boasting to the other seven inmates on that floor about the

things he had done to Barbel Poore. (Id., at TE VIII, 1076-1078). Michael Nally

immediately recorded Stanford’s volunteered statement in his notebook:

10

{H]e said he made her suck his dick and then he came about

saying, “we fucked her in the ‘booty’... .”” (TE VIII, 1080;

Apx. 1852). * * * “I had to shoot her, the bitch lived next door

to me and she would recognize me.” * * * “I guess we could

have tied her up or something or beat the piss out of her and

tell her, if she tell, we would kill her.” At that time, Mr.

Stanford began laughing. ... (Id., at 1082).

Course Of Proceedings

Stanford was 17 years old when he murdered Barbel Poore. Following his

arrest, Stanford was arraigned in the Juvenile Division of the Jefferson District Court.

There he was represented by the same public defender, Hon. Franklin P. Jewell, who had

been provided to him during his initial pre-arrest interrogation by the police. (R.55 State

Record, Suppression Hearing, Det. Tangel, Det. Chesser, 14-18, 91-103).

In 1981, KRS 208.170 provided that juvenile court jurisdiction could be

waived, and the offender be tried as an adult, if he either was (i) charged with a Class A

felony or capital offense, or (ii) over 16 years of age and charged with a felony.

On May 22 and July 14, 1981, the juvenile court conducted hearings to

determine whether Stanford should be transferred to the Jefferson Circuit Court for trial

as an adult offender. A total of 19 witnesses testified at those proceedings, which

resulted in the dismissal of the rape charge but also in the transfer of Stanford for trial as

an adult offender on the remaining charges. Finding Stanford’s transfer to be in the best

interest of the community, the juvenile court listed its prior but unsuccessful attempts to

rehabilitate him.’ (R. 55, State Record, 81-CR-1218, TR 30-33).

On prior occasions, Stanford had been sent to five different treatment facilities as

the result of delinquency proceedings. (Id.). “Since the age of ten, Stanford has... .

committed various offenses including arson, burglary, sexual abuse, theft and assault, to

11

Stanford and Buchanan were jointly indicted on November 5, 1981. (R.55

State Record, 81-CR-1218, TR 1-4).

The Jefferson Circuit (adult) Court considered and rejected Stanford's

motion’ to be tried as a juvenile. (R.55 State Record, 81-CR-1218, TR 85-88; TH 3/1/82,

pp. 180-184).

During the hearings on that motion, however, it came to light that the

grand jury had not been informed of its option to recommend that Stanford be ted as a

juvenile in spite of the District Court's prior transfer of him to the Circuit Court. KRS

208.101(5)(a). (R.5S5 State Record, TH 3/1/82, pp. 179-180, 210-217; TH 3/8/82, pp. 91-

100).

Stanford was re-indicted accordingly. (R.55 State Record, 82-CR-406, TR

1-4; TH 3/8/82, pp. 11).

Stanford and Buchanan were jointly tried before a jury August 2 through

13, 1982, the Honorable Charles M. Leibson, Jefferson Circuit Court Judge, presiding.

(R.55 State Record, 82-CR-406, TR 1-13). Troy Johnson, the getaway driver, was tried

separately as a juvenile. He testified against Stanford and Buchanan at trial. (R.55 State

Record, TE VII, 1048-1050). Buchanan was sentenced to life in prison for Murder and to

60 years in prison for First-Degree Rape, First-Degree Sodomy, and First-Degree

Robbery. (R.55 State Record, TR 82-CR-406, pp. 374-376). Stanford was sentenced to

name but a few.” Stanford v. Commonwealth, Ky., 734 S.W.2d 781 at 791, n. 8. (1987).

“Kentucky’s then existing juvenile waiver statute, KRS 208.170(5)(b), conferred

such discretion on the circuit court.

12

death for Murder and to 45 years in prison for First-Degree Sodomy, and First-Degree

Robbery, and Receiving Stolen Property Over $100. (R.55 State Record, TR 82-CR-406,

pp. 401-404).

Buchanan's direct appeal was affirmed in Buchanan v. Commonwealth,

Ky., 691 S.W.2d 210 (1985). This Court granted Buchanan's petition for writ of

certiorari On two separate questions and affirmed on both. Buchanan v. Kentucky, 483

U.S, 402 (1987).

Stanford's direct appeal was unanimously affirmed in Stanford v.

Commonwealth, Ky., 734 S.W.2d 781 (1987). This Court granted Stanford's petition for

writ of certiorari on one question and affirmed in Stanford v. Kentucky, 492 U.S. 361

(1989) (No. 87-5765).

On April 30, 1990, Stanford filed in the state trial court a 26-page motion

to vacate judgment pursuant to RCr 11.42. (R.55 State Record, 82-CR-406, TR 685-710,

Apx. 1100-25). The Commonwealth filed a response on June 19, 1990. (R.55 State

Record, 82-CR-406, TR 712-740). The Honorable William Knopf, Jefferson Circuit

Judge, denied Stanford's RCr 11.42 motion by order entered on June 28, 1990. (R.55

State Record, 82-CR-406, TR 741).

The Kentucky Supreme Court unanimously affirmed the denial of RCr

11.42 relief in Stanford v. Commonwealth, Ky., 854 S.W.2d 742 (1993), cert. denied, 510

U.S. 1049 (1994)(No. 93-6213).

On July 29, 1994, the U.S. District Court granted Stanford’s pre-habeas

motion for stay of execution of his death sentence. (R.12). On March 7, 1995, the Sixth

13

Circuit granted the Commonwealth's petition for writ of mandamus and vacated the

District Court's stay order. (R.14). In re Parker, 49 F.3d 204 (6" Cir. 1995).

On August 9, 1995, Stanford's attorneys filed his habeas petition and

memorandum in the U.S. District Court. (R.18). On October 20, 1995, Stanford's

attorneys were ordered to file a revised habeas petition and memorandum. (R.30). On

January 5, 1996, Stanford's attorneys filed a revised memorandum. (R.34). On March

22, 1996, the U.S. District Court granted Stanford’s attorneys additional time to file a

revised habeas petition. (R.38). On July 25, 1996, Respondent filed an answer to

Stanford’s habeas petition together with a memorandum in support. (R.55). On May 29,

1998, the U.S. District Court ruled upon several motions and objections filed by the

parties regarding preliminary matters. (R. 83, R.84, R.85).

On December 2, 1998, the Magistrate Judge denied Stanford's discovery

motion and filed a report recommending that Stanford's habeas petition be dismissed

with prejudice. (R.95 and R.96). Stanford objected to the Magistrate Judge's order

denying and his report. (R. 106 and R.107).

On August 26, 1999, the U.S. District Court filed a memorandum opinion

and judgment adopting in major part the Magistrate Judge’s report, denying the writ, and

dismissing the habeas petition with prejudice. (R.108 and R.109).

On September 10, 1999, Stanford’s attorneys filed two different motions

under FRCP 59(e) to reconsider or to alter judgment. (R.110 and R.111). On December

21, 1999, the U.S. District Court denied those motions. (R.114). The Sixth Circuit

affirmed the denial of habeas relief in a unanimous three-judge panel opinion. Stanford

14

v. Parker, 266 F.3d 442 (6th Cir. 2001). The Sixth Circuit unanimously denied Stanford's

petition for en banc rehearing. (Pet. Apx. A166; 2001 U.S.App. Lexis 26419).

15

REASONS FOR DENYING THE WRIT

I.

THE CLAIM PRESENTED IN STANFORD'S

HABEAS PETITION IN THIS COURT IS BARRED

BECAUSE IT CONSTITUTES A SUCCESSIVE

HABEAS PETITION AND WAS FILED OUTSIDE

THE STATUTORY ONE YEAR TIME LIMIT.

Stanford concedes that his habeas petition in this Court is a successive

habeas petition because his previous habeas petition was denied and dismissed with

prejudice by the U.S. District Court for the Western District of Kentucky. See Stanford v.

Parker, 266 F.3d 442 (6th Cir. 2001), petition for certiorari pending, no. 01-10008.

Stanford also concedes that this Court rejected the same claim, after granting certiorari on

his direct appeal. Stanford v. Kentucky, 492 U.S. 361 (1989).

The Eighth Amendment claim presented in Stanford's habeas petition 1s

barred by 28 U.S.C. Section 2244(b)(1) and (c). Felker v. Turpin, 518 US. 651, 664-664

(1996), left open the question as to whether these provisions applied to successive habeas

petitions filed directly in this Court but directed that the Court would consider these

statutory provisions in ruling upon habeas petitions. Also see, Calderon v. Thompson,

523 U.S. 538, 558 (1998). None of the factors cited by Stanford are sufficient to satisfy

the statutory criteria for a successive habeas petition.

Stanford's claim does not satisfy the criteria for a successive habeas

petition under Section 2244(b)(2)(A), as explained by Tyler v. Cain, 533 U.S. 656, 668

(2001), because this Court has never held that the Eighth Amendment prohibits the death

penalty for 17 year olds. |

16

Stanford's claim also fails under Section 2244(b)(2)(B) because his claim

does not involve newly discovered evidence that would establish his actual innocence of

the capital murder or aggravating factors for the death penalty, nor does it involve the

discovery of evidence that prevented from asserting this claim in earlier proceedings. See

McCleskey v. Zant, 499 U.S. 467, 498 (1991); Bousley v. United States, 523 U.S. 614,

623 (1998); Sawyer v. Whitely, 505 U.S. 333, 338-339 (1992). Stanford's claim does not

satisfy the criteria established by this Court prior to enactment of the AEDPA

amendments to Section 2244 for actual innocence of the death penalty to justify a

successive habeas petition. Calderon v. Thompson, 523 U.S. 538, 559-560 (1998), citing,

Sawyer v. Whitley, 505 U.S. 333, 339 (1992); and Schlup v, Delo, 513 U.S. 298, 324

(1995).

Finally, Stanford's claim is barred by the one year time limit prescribed by

28 U.S.C. Section 2244(d). See Duncan v. Walker, 533 U.S. 167 (2001).

Under Stanford's argument, every time even one State through its

legislature or supreme court changes its position on a legal issue with constitutional

implications, a habeas petitioner is entitled to file a successive habeas petition to re-

litigate a previously rejected federal constitutional claim This argument is contrary to the

previously cited rulings by this Court and Section 2244. Also see, Barefoot v. Estelle,

463 U.S. 880, 887-888 (1993).

17

PETITIONER HAS NOT DEMONSTRATED A

NATIONAL CONSENSUS OPPOSING THE

CAPITAL PUNISHMENT OF 17-YEAR-OLD

MURDERERS, NOR HAS HE DEMONSTRATED

. THAT HIS CASE IN

492 U.S. 361 (1989) WAS WRONGLY DECIDED.

Petitioner was a career criminal before he robbed, abducted, anally

sodomized, orally sodomized, and executed Barbel Poore. On prior occasions, Petitioner

had been sent to five different correctional facilities as the result of juvenile delinquency

proceedings. (JA 9, Stanford v. Kentucky, No. 87-5765).

... Stanford has been given the benefit of treatment available

. to youthful offenders in the Commonwealth on a repeated

basis over a period of several years before his involvement in

the crimes charged in the instant case. Since the age of ten,

Stanford has revolved in and out of juvenile court having

committed various offenses including arson, burglary, sexual

abuse, theft and assault, to name but a few. Stanford v.

Commonwealth, Ky., 734 S.W.2d 781, 792 (1987).

Petitioner resumed his criminal career after he was sentenced to death for

the murder of Barbel Poore. See Stanford v. Parker, Ky.App., 949 S.W.2d 616

(1996)(appeal from prison disciplinary action for anally sodomizing another death row

inmate in 1992).

very young up to those on the brink of majority. Some of

the older minors become fully “street-wise,” hardened

criminals, deserving no greater consideration than that

properly accorded all persons suspected of crime. Other

minors are more of a child than an adult. As the Court

indicated in In re Gault, 387 U.S. 1 (1967), the facts

relevant to the care to be exercised im a particular case vary -

widely. They include the minor’s age, actual maturity,

tamily environment, education, emotional and mental

stability, and, of course, any prior record he might have.

Fare v. Michael C., 442 U.S. 707, 734, n.4 (1979) (Powell, J., dissenting).

Maturity varies from individual to individual. Some individuals never

attain it; some do at an age labeled “child.”

“It is generally agreed ‘that punishment should be directly related to the

personal culpability of the criminal defendant.’ California v. Brown, 479 U.S. 538 (1987)

(O'Connor, J., concurring)."” Thompson v. Oklahama, 487 U.S. 815(1988).

Guided, individualized consideration of the offender's circumstances is the

touchstone of capital sentencing. See Zant v. Stephens, 462 U.S. 862, 879 (1983),

collecting cases. Gregg v. Georgia, 428 U.S. 153 (1976) and its progeny are intended to

avoid the kind of “ngid”, “mechanical” and “wholly arbitrary” determination urged here

by Petitioner. Barclay v. Florida, 463 U.S. 939, 950 (1983). No particular circumstances

of a capital offender's crime should automatically require the death penalty, Woodson v.

North Carolina, 428 U.S. 280 (1976); Roberts v. Louisiana, 428 U.S. 325 (1976), or

automatically foreclose it, Tison v. Arizona, 481 U.S. 137, 158 (1987). Rather, the

sentencer must be “free to consider a myriad of factors to determine whether death is the

appropriate punishment.” California v. Ramos, 463 U.S. 992, 1008 (1983). Youthfulness

is only one such factor and it is not necessarily the most important.

Petitioner did not demonstrate a national consensus against the execution

of 17-year-old murderers in Stanford v. Kentucky, 492 U.S. 36 (1989). His assertion that

during the 13 years that have followed, only two § tes have enacted legislation barring

19

the execution of juveniles, falls woefully short of establishing such a national consensus

in the present action.

In examining the evidence, it is important to remember that Petitioner

rather than Kentucky bears the burden of proof:

The deference we owe to the decisions of the state

legislature under our federal system [citation omitted] is

enhanced where the specification of punishments is

concerned, for “these are peculiarly questions of legislative

policy.” [citations omitted]

Gregg v. Georgia, 428 U.S. 153, 177 (1976).

Therefore, in assessing a punishment selected by a

democratically elected legislature against the constitutional

measure, we presume its validity. We may not require the

legislature to select the least severe penalty possible so long

as the penalty selected is not cruelly inhumane or

disproportionate to the crime involved. And a heavy

burden rests on those who would attack the judgment of the

representatives of the people.

Id., at 176.

More important than the presence of consensus favoring capital

punishment of juveniles is the absence of a consensus opposing it. Because the

constitutional validity of an authorized punishment is presumed, Petitioner has the burden

of proving that the practice enjoys virturally no acceptance among the States. Greg v.

Georgia, supra, 428 U.S. at 176-177. Petitioner cannot prove a consensus opposing the

capital punishment of juveniles among the States that have the death penalty, or even

when he includes the non-death penalty States in his reckoning. The death penalty States

have not uniformly accepted any particular age minimum for capital punishment.

Petitioner cannot escape the fact that even by his own account a majority

of the death penalty States in this country subject 17-year-old capital offenders to capital

punishment. This falls far short of proving a consensus against the practice. Stanford v_

Kentucky, 492 U.S. at 373 (plurality opinion).

Based on the legislative enactments of the States, it is obvious that the idea

of subjecting 17-year-old capital offenders to the death penalty continues to garner

widespread acceptance throughout this country. Certainly there is no legislative

consensus against such a practice. Because these legislative pronouncements are the most

reliable indicia of modern societal standards pertaining to this matter, their failure to

clearly demonstrate a uniform opposition to the capital punishment of juveniles should

end the inquiry now before this Court.

The concurring opinion in Thompson v. Oklahoma, 487 U.S. 815 (1988)

correctly noted Furman v. Georgia 408 U.S. 238 (1972) as an example of why the

evidence of a consensus against capital punishment must be clear and convincing:

In 1972, when this Court heard arguments on the

constitutionality of the death penalty, such statistics might

have suggested that the practice had become a relic,

implicitly rejected by a new societal consensus. Indeed,

counsel urged the Court to conclude “that the number of

cases in which the death penalty is imposed, as compared

with the number of cases in which it is statutorily available,

reflects a general revulsion toward the penalty that would

lead to its repeal if only it were more generally and widely

enforced,” Furman v. Georgia, 408 U.S. 238, 386, 33

L.Ed.2d 346, 92 S.Ct. 2726 (1972) (Burger, C.J.,

dissenting). We know that any inference of a societal

consensus rejecting the death penalty would have been

mustaken. But had this Court then declared the existence of

such a consensus, and outlawed capital punishment,

21

legislatures would very likely not have been able to revive

it. The mistaken premise of the decision would have been

frozen into constitutional law, making it difficult to refute

and even more difficult to reject.

Thompson., at 855 (O’Connor, J., concurring in judgment).

Petitioner urges that only a small percentage of American's death row

prisoners were below the age of 18 years when they committed their murders.

Petitioner’s statistical argument says nothing about the percentage of 19-year-olds, 34-

year-olds, or 70-year-olds comprising America’s total Geath row population. Considered

in isolation and removed from comparison with other specific ages, he 16 and 17-year-

old percentage offered by Petitioner means absolutely nothing. Also, the Petitioner does

not offer any statistics reflecting the number or percentage of death penalty-punishable

crimes committed by juveniles in comparison with those committed by adults. This

might well explain why Petitioner stops short of suggesting a significant statistical

disparity between the relative number of juvenile death row inmates and the number of

juveniles who actually faced the death penalty at trial.

Petitioner refers to the opposition voiced by various special imterest

organizations. In a democratic society such as the United States only the minority would

be expected to speak out in opposition. If those groups represented the majority view,

they would not find it necessary to advocate that the law be changed. Consequently, this

too is an unreliable factor.

Petitioner offers as evidence the laws of other countries. Much like bis

argument concerning non-capital States, the evidence pertaining to the laws of other

countries is confounded by the fact that the vast majority of the 22 Western Europe and

other Anglo-American nations have no death penalty at all for “ordinary crimes” (except

wartime offenses or under circumstances not at issue here). See Thompson v. Oklahoma,

487 U.S. at 830-831 (plurality opinion).

Also,

We emphasize that it is American conceptions of decency

that are dispositive, rejecting the contention of petitioners

and their various amici (accepted by the dissent, see post, at

389-390, 106 L.Ed.2d, at 331-332) that the sentencing

practices of other countries are relevant. While “{tJhe

practices of other nations, particularly other democracies,

can be relevant to determining whether a practice uniform

among our people is not merely an historical accident, but

rather so ‘implicit in the concept of ordered liberty’ that it

occupies a place not merely in our mores, but text

permitting, in our Constitution as well,” Thompson v.

Oklahoma, 487 U.S. 815, 868-869, n.4., 101 L.Ed.2d 702,

108 S.Ct. 2687 (1988) (Scalia, J., dissenting), quoting

Palko v Connecticut, 302 U.S. 319, 325, 82 L.Ed. 288, 58

S.Ct. 149 (1937) (Cardozo, J.), they cannot serve to

establish the first Eighth Amendment prerequisite, that the

practice is accepted among our people.

Stanford v, Kentucky, 492 U.S. at 370, n.1 (emphasis in original).

Petitioner's arguments have no more empirical support or practicality

today than they did when those same arguments were rejected in Stanford v. Kentucky,

supra. The petition for a writ of habeas corpus should be denied.

23

III.

TREATIES TO WHICH THE UNITED STATES

HAVE MADE EXPLICIT RESERVATIONS

CONCERNING THE EXECUTION OF JUVENILES

DO NOT DESERVE ANY CONSIDERATION BY

THIS COURT.

Petitioner argues that certain treaties either require this Court to abolish

the juvenile death penalty, or should be embraced as the paramount component of this

Court's Eighth Amendment jurisprudence on the matter. |

Petitioner contends that Article 6, Paragraph 5 of the International

Covenant on Civil and Political Rights (ICCPR) binds the United_States and requires this

Court to abolish the death penalty for murderers under the age of 18 at the time of their

crimes.

Petitioner argues that his death sentence, imposed for a crime committed

while he was 17 years old, violates Article 6(5) of the ICCPR. Article 6(5) provides,

inter alia, that a “[{sJentence of death shall not be imposed for crimes committed by

persons below eighteen years of age and shall not be carried out on pregnant women.”

ICCPR, opened for signature 19 Dec. 1966, art. 6, para. 5, S. EXEC. Doc. E, 95-2, at 23

(1978), 999 U.N.T.S. 171, 175. However, when the United States ratified the treaty in

1992, it did so with five reservations, five understandings, four declarations, and one

proviso. Domingues v. State of Nevada, 961 P.2d 1279, 1280 (Nev. 1998), cert. denied,

528 U.S. 936 (1999); Ex parte Pressley, 770 So.2d 143, 148 (Ala.), cert. denied, __ U.S.

___, 121 S. Ct. 313 (2000). Included in these limitations were the following pertinent

That the United States reserves the right, subject to its

Constitutional constraints, to impose capital punishment on

any person (other than a pregnant woman) duly convicted

under existing or future laws permitting the imposition of

capital punishment, including such punishment for crimes

committed by persons below eighteen years of age.

*“* *& *

That the United States declares that the provisions of

Articles 1 through 27 of the [ICCPR] are not self-

executing.

138 CONG. REC. $4781-01, *S4783-84 (daily ed. April 2, 1992) (statement of presiding

officer of resolution of ratification). Petitioner contends that the Supremacy Clause, the

Eighth Amendment and Article 6(5) of the ICCPR individually void his Kentucky death

sentence.

The argument that the ICCPR prohibits a State of the United States from

executing a murderer who was over 16 years old when he committed the murder has been

rejected by the Fifth, Sixth, and Tenth Circuits. Beazley v. Johnson, 242 F.3d 248, 263-

269 (5th Cir. 2001); Buell v. Mitchell, 274 F.3d 337, 371-376 (6th Cir. 2001); Hain v.

Gibson, 287 F.3d 1224, 1242-1244 (10th Cir. 2002).

Petitioner argues that the Senate’s reservation to Article 6(5) is invalid and

void because the reservation violates the ICCPR’s object and purpose. Quoted above, the

reservation in question is explicit. According to Petitioner the reservation must be

severed and the United States must be bound to the treaty without benefit of the

reservation. Even if this claim were not defaulted, Petitioner’s argument does not merit

consideration by this Court.

25

The ICCPR “does not require its member countries to abolish the death

penalty.” Jamison v. Collins, 100 F.Supp.2d 647, 766 (S.D. Ohio 2000), affd. on other

grounds, 2002 U.S. App. LEXIS 97026 (6th Cir. May 23, 2002). Article 6(2) of the

ICCPR states that “{i}n countries which have not abolished the death penalty, sentence of

death may be imposed only for the most serious crimes in accordance with the law in

force at the time of the commission of the crime. . . .” Instead, “the ICCPR prohibits

cruel, inhumane, or degrading punishment.” Jamison supra (referring to ICCPR, Article

7: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or

punishment. In particular, no one shall be subjected without his free consent to medical

or scientific experimentation.”). In fact, the United States only agreed to abide by Article

7's prohibition “to the extent that the Fifth, Eighth, and Fourteenth Amendment preclude

cruel and unusual punishment.” Id.°

It is thus clear from the express language of the reservations both to

Article 6(5) as well as to Article 7 that the Senate never intended the courts to be

foreclosed from imposing capital punishment on persons rightfully convicted when such

punishment does not violate our constitutional protections. Because this Court has held

in Stanford v. Kentucky, supra, that laws authorizing the death penalty for criminal

offenders under the age of 18 withstand constitutional scrutiny, the Senate reservation to

Article 6(5) is clearly consis!» with such precedent. Indeed, in 1998, the Special

Rapporteur on Extrajudicial, Summary, or Arbitrary Executions commented on the

“(3) That the United States considers itself bound by Article 7 to the extent that ‘cruel,

inhuman or degrading treatment or punishment’ means the cruel and unusual treatment or

The Senate ratified the ICCPR subject to the following additional reservation:

punishment prohibited by the Fifth, Eighth and/or Fourteenth Amendments to the

Constitution of the United States.” 138 CONG. REC. $4781-01, *S4783 (daily ed. April 2,

1992).

26

‘

United States’ initial report to the United Nations Human Rights Committee (“HRC”) as

follows: “Further, according to the United States report, fundamental rights and

freedoms protected by the ICCPR are already guaranteed in United States law, either by

virtue of constitutional protections or enacted statuwes, and can be effectively asserted and

enforced by individuals in the judicial system on those bases. For these reasons, [the

United States did not consider it} necessary to adopt special implementing legislation to

give effect to the provisions of the ICCPR in domestic law.” REPORT OF TH S?.CIAL

RAPPORTEUR ON EXTRAJUDICIAL, SUMMARY OR ARBITRARY EXECUTIONS, MISSION TO

THE UNITED STATES OF AMERICA, Jan. 22, 1998, E/CN.4/1998/68/Add.3, para. 34

(emphasis added).

In support of his argument that the Senate reservation to Article 6(5) is

invalid, Petitioner points to the HRC General Comment of April 1994° as having set the

*The Fifth Circuit provided the text of the General Comment as follows:

The Covenant neither prohibits reservations nor mentions any type of

permitted reservation.... [W]here a reservation is not prohibited by the

treaty or falls within the specified permitted categories, a State may make

a reservation provided it is not incompatible with the object and purpose

of the treaty.... Reservations that offend peremptory norms would not be

compatible with the object and purpose of the Covenant.... Accordingly, a

State may not reserve the right ... to execute ... children....{*| The normal

consequence of an unacceptable reservation is not that the Covenant will

not be in effect at all for a reserving party. Rather, such a reservation will

generally be severable, in the sense that the Covenant will be operative for

the reserving party without benefit of the reservation.

Beazley v. Johnson, 242 F.3d 248, 264-65(Sth Cir. 2001) (citing General Comment 24,

General Comment on Issues Relating to Reservations Made upon Ratification or

Accession to the Covenant or the Optional Protocols Thereto, or in Relation to

Declarations Under Article 41 of the Covenant, U.N. GAOR Human Rights Comm, 52d

Sess., f] 5, 6, 8, 18, U.N. Doc. CCPR/C/21/Rev. 1/Add/6 (Nov. 1994) (emphasis added

by court). *Although Petitioner argues that the imposition of his sentence violates a

peremptory norm, he is mistaken. Petitioner is nearly 39 years old and, thus, Kentucky

would not be “executing a child.”

27

requirements for reservations to the ICCPR. At page 36 of his petition, borrowing

directly from page 21 of the petition by Jeremy Beazley (No. 00- 10618)’, he then states

that “{i}n its first report on United States compliance, the HRC found the United States’

reservation to Article 6(5) invalid,” quoting the HRC’s 1995 report as follows:

Para. 279. The Committee is . . . particularly concerned at

reservations to article 6, paragraph 5, and article 7 of the

Covenant, which it believes to be incompatible with the

object and purpose of the Covenant.

(emphasis added).* Mowover, coatsary to Pethionsr’s exsantion, te IRC Raper did ast

actually state that the Senate reservation was “invalid.” As the Fifth Circuit reasoned, “the

HRC has not found the reservation void.” Beazley v. Johnson, 242 F.3d 248, 266 (Sth

Cir. 2001). Instead, the court in Beazley noted that the HRC, “by simply ‘suggest{ing) or

recommend|ing}’ that the Senate withdraw the reservation, ... declined to attempt to void

or to sever the reservation.” Id. at 265; see also id. (quoting HRC Report, supra at #] 279,

292).

Further, in reaching its decision that the Senate reservation to Article 6(5)

has not been declared illegal, the Fifth Circuit looked both to its own decisions regarding

the validity of Senate reservations to other articles of the ICCPR as well as to how other

courts had addressed the issue of the specific Article 6(5) reservation. Beazley, 242 F.3d

at 266-67. That court considered its own decision im White v. Johnson, which recognized

the validity of the Senate’s reservation to Article 7 of the ICCPR. Id. at 266 (citing White,

"Beazley was executed on May 28, 2002.

“Citing Annual General Assembly Report of the Human Rights Committee, U.N.

GAOR Human Rights Comm., 50th Sess., Supp. No. 40, 279, U.N. Doc. A/S0/40 (3

Oct. 1995) (hereinafter “HRC Report”).

79 F.3d 432, 440 & n.2 (Sth Cir), cert. denied, 519 U.S. 911 (1996); also citing Austin v.

Hopper, 15 F. Supp.2d 1210, 1260 n.222 (M.D. Ala. 1998) (concluding that reservations

from the ICCPR “preclude” reliance upon it)). Also considered were opinions from two

state supreme courts, Alabama and Nevada, both of which specifically rejected

Petitioner's argument that the Senate’s reservation to Article 6(5) is illegal. Ex parte

Pressley, 770 So.2d at 148 (“We are not persuaded that Pressley has established that the

Senate's express reservation of this nation’s nght to impose a penalty of death on juvenile

offenders, in ratifying the ICCPR, is illegal.”); Ex parte Burgess, Jr., 811 So.2d 617, 628-

629 (Ala. 2000) (reaffirming reasoning and holding in Ex parte Pressley, supra regarding

reservation to Article 6(5) of ICCPR); Domingues v. State of Nevada, 961 P.2d at 1280

(Nev. 1998) (“We conclude that the Senate's express reservation of the United States’

right to impose a penalty of death on juvenile offenders negates Domingues’ claim that he

was illegally sentenced.”’).”

It is beyond dispute that unless the United States ratified the ICCPR, then

the United States has no obligation to comply with the treaty. The degree to which the

United States might be bound by the ICCPR is “severely limited by four interpretive

declarations, at least five reservations, and five understandings.” Christy A. Short,

Comment, The Abolition of the Death Penalty: Does “Abolition” Really Mean What You

Think It Means’, 6 IND. J. GLOBAL LEGAL STUD. 721, 726 (1999) (emphasis added). In

seeking relief on this claim, Petitioner urges this Court to bind the United States to a

provision of a treaty which it is clear that neither the President nor the Senate wished to

"See also Ex parte Carroll, No. 1990908, 2001 WL 410424, at *1 (Ala Apr. 20,

2001) (reaffirmmg holding in Ex parte Pressley, supra).

29

TE

be bound by, as evidenced by the express terms of the reservation which preserves the

right to impose a death sentence “on any person. . . duly convicted of capital punishment,

including such punishment for crimes committed by persons below eighteen years of

age.” 138 Cong. Rec. $4781-01, *S4783 (daily ed. April 2, 1992)). Petitioner's defaulted

Petitioner argues that the non-self-executing declaration (“The United

States declares that the provisions of Articles | through 27 of the Covenant are not self.

executing.”) is no bar to relief. 138 Cong. Rec. $4781-01, *S4784 (daily ed. April 2,

1992).

This Court has long held that treaties are only enforceable in United States

courts if either the treaty is self-executing or the Legislature passes legislation

implementing the provisions of a treaty. Foster v. Neilson, 27 U.S. (2 Pet.) 253, 314

(1829), overruled in part on other grounds, United States v. Percheman, 32 U.S. (7 Pet.)

51 (1833); see also, e.g., Hawkins v. Comparet-Cassani, 33 F. Supp.2d 1244, 1256-57

(C.D. Cal. 1999) (citing Foster, supra), rev. in part on other grounds, 251 F.3d 1230 (9th

Cir. 2001); United States v. Postal, 589 F.2d 862, 875-76 (Sth Cir.) (explaining that

treaties that are not self-executing require implementing legislation before individuals can

rely on their provisions in U.S. courts), cert. denied, 444 U.S. 832 (1979). ““Non-self

executing’ means that absent any further actions by the Congress to incorporate them into

domestic law, the courts may not enforce them.” Jama v. LN.S., 22 F. Supp.2d 353, 365

(D.N.J. 1998). Here, given the plain language of the non-self-executing declaration and

the fact that Congress has not taken any steps to implement the ICCPR provisions.

Petitioner's argument essentially ignores the Senate declaration’s clearly

expressed intent that Articles | through 27 “are not self-executing.” In interpreting the

ICCPR, a court looks first to its plain meaning. United States v. Duarte-Acero, 208 F.3d

1282, 1285 (11th Cir. 2000) (“Naturally, our first focus in interpreting the ICCPR is its

plain language.”’), Eastern Airlines, Inc. v. Floyd, 499 U.S. 530, 534 (1991) (“When

interpreting a treaty, we begin with the text of the treaty and the context in which the

written words are used.””) (quoting Volkswagenwerk Aktiengesellschaft v. Schlunk, 486

U.S. 694, 699 (1988)). “If the language of the treaty is clear and unambiguous, as with

any exercise in statutory construction, our analysis ends there and we apply the words of

the treaty as written.” United States v. Duarte-Acero, supra (citing Chan v. Korean Air

Lines, Ltd., 490 U.S. 122, 135 (1989) (“[T]o alter, amend, or add to any treaty, by

inserting any clause, whether small or great, important or trivial, would be on our part an

usurpation of power, and not an exercise of judicial function. It would be to make, and

not to construe a treaty.”’) (quoting In re The Amiable Isabella, 19 U.S. (6 Wheat) 1, 71, 5

L. Ed. 191 (1821)); see also, e.g., Uniroyal Chemical Co., Inc. v. Deltech Corp., 160 F.3d

238, 244 (Sth Cir. 1998) (“When the language [of the statute itself] is plain we must abide

it; we may depart from its meaning only to avoid a result so bizarre that Congress could

not have intended it” (internal quotation omitted); Camunetti v. United States, 242 U.S.

470, 485 (1917). Although Petitioner obviously desires Article 6(5) to create an

individually enforceable right, the express and unambiguous wording of the Senate

declaration forecloses such an interpretation.

31

a ee

a

CONCLUSION

WHEREFORE, the petition for writ of habeas corpus should be denied

Respectfully Submitted,

ALBERT B. CHANDLER III

ATTORNEY GENERAL OF KENTUCKY

Quid 0. Arik

DAVID A. SMITH

ASSISTANT ATTORNEY GENERAL

IAN G. SONEGO

ASSISTANT ATTORNEY GENERAL

CRIMINAL APPELLATE DIVISION

1024 CAPITAL CENTER DRIVE

FRANKFORT, KENTUCKY 40601-8204

(502) 696-5342

COUNSEL FOR RESPONDENT

32

No. 01-10009

IN THE SUPREME COURT OF THE UNITED STATES

October Term 2001

IN RE KEVIN N. STANFORD PETITIONER

On petition for Writ of Habeas Corpus

TABLE OF APPENDIX

I. Title 28 United States Code Section 2244

Il. Title 28 United States Code Section 2254

APPENDIX I

TITLE 28 OF UNITED STATES CODE

§ 2244. Finality of determination

(a) No circuit or district ju‘ge shall be required to entertain an application for a writ of habeas

corpus to inquire into the detention of a person pursuant to a judgment of a court of the United

States if it appears that the legality of such detention has been determined by a judge or court of

the United States on a prior application for a writ of habeas corpus, except as provided in section

2255

(b) (1) A claim presented in a second or successive habeas corpus application under section 2254

that was presented m a prior application shal] be dismissed.

(2) A claim presented in a second or successive habeas corpus application under section 2254

that was not presented in a prior application shall be dismissed unless--

(A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive

to cases on collateral review by the Supreme Court, that was previously unavailable; or

(B) (i) the factual predicate for the claim could not have been discovered previously through the

exercise of due diligence; and

(1i) the facts underlying the claim, if proven and viewed in light of the evidence as a whole,

would be sufficient to establish by clear and convincing evidence that, but for constitutional

error, no reasonable factfinder would have found the applicant guilty of the underlying offense.

(3) (A) Before a second or successive application permitted by this section is filed in the district

court, the applicant shall move in the appropriate court of appeals for an order authorizing the

district court to consider the application.

(B) A motion in the court of appeals for an order authorizing the district court to consider a

second or successive application shall be determined by a three-judge panel of the court of

appeals.

(C) The court of appeals may authorize the filing of a second or successive application only if it

determines that the application makes a prima facie showing that the application satisfies the

requirements of this subsection.

(D) The court of appeals shall grant or deny the authorization to file a second or successive

application not later than 30 days after the filing of the motion.

(E) The grant or denial of an authorization by a court of appeals to file a second or successive

application shal] not be appealable and shall not be the subject of a petiuon for rehearing or for a

writ of certiorari.

(4) A district court shall dismiss any claim presented in a second or successive application that

the court of appeals has authorized to be filed unless the applicant shows that the claim satisfies

the requirements of this section.

(c) In a habeas corpus proceeding brought in behalf of a person in custody pursuant to the

judgment of a State court, a prior judgment of the Supreme Court of the United States on an

appeal or review by a writ of certiorari at the instance of the prisoner of the decision of such State

court, shal] be conclusive as to all issues of fact or law with respect to an asserted denial of a

Federal right which constitutes ground for discharge in a habeas corpus proceeding, actually

adjudicated by the Supreme Court therein, unless the applicant for the writ of habeas corpus shall

plead and the court shall find the existence of a material and controlling fact which did not

appear in the record of the proceeding in the Supreme Court and the court shall further find that

the applicant for the writ of habeas corpus could not have caused such fact to appear in such

record by the exercise of reasonable diligence.

(d) (1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a

person in custody pursuant to the judgment of a State court. The limitation period shall run from

the latest of--

(A) the date on which the judgment became final by the conclusion of direct review or the

expiration of the time for seeking such review,

(B) the date on which the impediment to filing an application created by State action in violation

of the Constitution or laws of the United States is removed, if the applicant was prevented from

filing by such State action;

(C) the date on which the constitutional right asserted was initially recognized by the Supreme

Court, ee ee

applicable to cases on collateral review, or

Gb deo dune on hich Gen Remned qualinte fbn Gdns ten gumentendt tenon

discovered through the exercise of due diligence.

(2) The time during which a properly filed application for State post-conviction or other

collateral review with respect to the pertinent judgment or claim is pending shall not be counted

toward any period of limitation under this subsection.

APPENDIX II

TITLE 28 OF UNITED STATES CODE

§ 2254. State custody; remedies in Federal courts

(a) The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an

application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment

of a State court only on the ground that he is in custody in violation of the Constitution or laws or

treaties of the United States.

(b) (1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the

judgment of a State court shall not be granted unless it appears that--

(A) the applicant has exhausted the remedies available in the courts of the State; or

(B) (i) there is an absence of available State corrective process; or

(ii) circumstances exist that render such process ineffective to protect the rights of the applicant.

(2) An application for a writ of habeas corpus may be denied on the merits, notwithstanding the

failure of the applicant to exhaust the remedies available in the courts of the State.

(3) A State shall not be deemed to have waived the exhaustion requirement or be estopped from

reliance upon the requirement unless the State, through counsel, expressly waives the

requirement.

(c) An applicant shall not be deemed to have exhausted the remedies available in the courts of

the State, within the meaning of this section, if he has the right under the law of the State to raise,

by any available procedure, the question presented.

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the

judgment of a State court shall not be granted with respect to any claim that was adjudicated on

the merits in State court proceedings unless the adjudication of the claim--

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of

the evidence presented in the State court proceeding.

(e) (1) In a proceeding imstituted by an application for a writ of habeas corpus by a person in

custody pursuant to the judgment of a State court, a determination of a factual issue made by a

State court shall be presumed to be correct. The applicant shall have the burden of rebutting the

presumption of correctness by clear and convincing evidence.

(2) If the applicant has failed to develop the factual basis of a claim in State court proceedings,

the court shall not hold an evidentiary hearing on the claim unless the applicant shows that--

(A) the claim relies on--

(i) a new rule of constitutional law, made retroactive to cases on collateral review by the

Supreme Court, that was previously unavailable; or

(ii) a factual predicate that could not have been previously discovered through the exercise of due

diligence; and

(B) the facts underlying the claim would be sufficient to establish by clear and convincing

evidence that but for constitutional error, no reasonable factfinder would have found the

applicant guilty of the underlying offense.

(f) If the applicant challenges the sufficiency of the evidence adduced in such State court

proceeding to support the State court's determination of a factual issue made therein, the

applicant, if able, shall produce that part of the record pertinent to a determination of the

sufficiency of the evidence to support such determination. If the applicant, because of indigency

or other reason is unable to produce such part of the record, then the State shall produce such part

of the record and the Federal court shall direct the State to do so by order directed to an

appropriate State official. If the State cannot provide such pertinent part of the record, then the

court shall determine under the existing facts and circumstances what weight shall be given to the

State court's factual determination.

(g) A copy of the official records of the State court, duly certified by the clerk of such court to be

a true and correct copy of a finding, judicial opinion, or other reliable written indicia showing

such a factual determination by the State court shall be admissible in the Federal court

proceeding.

(h) Except as provided in section 408 of the Controlled Substance Acts [21 U.S.C. § 848], in all

proceedings brought under this section, and any subsequent proceedings on review, the court may

appoint counsel for an applicant who is or becomes financially unable to afford counsel, except

as provided by a rule promulgated by the Supreme Court pursuant to statutory authority.

Appointment of counsel under this section shall be governed by section 3006A of title 18.

(i) The ineffectiveness or incompetence of counsel during Federal or State collateral post-

conviction proceedings shall not be a ground for relief in a proceeding arising under section

2254.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.