Opposition Brief — In Re Stanford
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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.