Amicus Curiae Brief — Rice v. Collins

Suprenc Court, US.

FILED

G) AUG 2 9 2003

No. 04-52 OFFICE OF THE CLERK |

IN THE

Supreme Court of the United States

BERTRAM RICE, Warden, et al.,

Petitioners,

Vv.

STEVEN MARTELL COLLINS,

Respondent.

ON WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF OF AMICUS CURIAE STATES OF ARIZONA,

COLORADO, CONNECTICUT, IDAHO, IOWA,

MASSACHUSETTS, MICHIGAN, NEVADA, OHIO,

OREGON, SOUTH CAROLINA, SOUTH DAKOTA,

TENNESSEE, TEXAS, UTAH, AND WASHINGTON IN

SUPPORT OF THE PETITIONERS

BRIAN SANDOVAL

Attorney General

State of Nevada

DAVID K. NEIDERT *

Senior Deputy Attorney General

Criminal Justice Division

5420 Kietzke Lane, Suite 202

Reno, Nevada 89511

Telephone: (775) 688-1818

* Counsel of Record

Additional counsel listed inside the front cover

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QUESTION PRESENTED

DOES 28 U.S.C. § 2254 ALLOW A FEDERAL HABEAS

CORPUS COURT TO REJECT THE PRESUMPTION OF

CORRECTNESS FOR STATE FACT-FINDING, AND

CONDEMN A_ STATE ADJUDICATION AS AN

UNREASONABLE DETERMINATION OF THE FACTS,

WHERE A RATIONAL FACT-FINDER COULD HAVE

DETERMINED THE FACTS AS DID THE STATE COURT?

TOPICAL INDEX

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A. Evolution of Habeas Jurisprudence .............:ssseesesesseeneens 2

B. The Current Federal Habeas Corpus Statute..................00. 9

Un eecesintecetitcotenerenstantassencescantasomnssstesensnnsnsstancenensatnats 24

iii

TABLE OF AUTHORITIES

Cases

Batson v. Kentucky, 476 U.S. 79 (1986)........ccccccceesereeeees 8,17, 23

Bart ©. Desbiam, GIS US. 0 CRI G ED ccscecsssscnssncssenssvscemetemmnematanestin 4

Brewer v. Williams, 430 U.S. 387 (1977) .......:cccccsseeeceeeseeeeeeeeenees 5

Buckley v. Terhune, 397 F.3d 1149 (9th Cir. 2005) ............cce000 11

Cabana v. Bullock, 474 U.S. 376 (1986) .........:cccccscceeseeereseeeneeesenees 7

Collins v. Rice, 365 F.3d 667 (9th Cir. 2004)............ 12, 20, 22, 23

Cuyler v. Sullivan, 446 U.S. 335 (1980) .........cccccsesseseeseseeeeeneetees 5

Demosthenes v. Baal, 495 U.S. 731 (1990) ........ccccccesseeeeeeeeeeeneeenes 7

Ford v. Wainwright, 477 U.S. 399 (1986) .........ccccesseseesseeeceeseenees 8

Foster v. Johnson, 293 F.3d 766 (5th Cir. 2002)...........ccccceceesees 11

Garcia v. Runnells, 2005 WL 1799417 (9th Cir. August 1, wm,

Green v. Travis, 2005 WL 1581265 (2nd Cir. July 7, 2005) ...... -

Hernandez v. New York, 500 U.S. 352 (1991) .........cccceeees 8, 16, 23

Kimmelman v. Morrison, 477 U.S. 365 (1986) ...........ccccecseeeeeseees 8

Kuhlman v. Wilson, 477 U.S. 436 (1986).........ccccccccceeeeeeeeseneeenes 8

Lambert v. Blackwell, 387 F.3d 210 (3rd Cir. 2004) ....... 12, 13, 23

LaVallee v. Delle Rose, 410 U.S. 690 (1973) (per curiam) ...........++.

cantassseiinietingetaniniitepinabiningnsinineeaiiidisiaadiaddateintiiaiaiinimasds 2, 4, 6, 16

Lockyer v. Andrade, 538 US. 63 GEE csinninsnncsiinassisatniscesbddaneniiasiis 16

iv

Maggio v. Fulford, 462 U.S. 111 (1983) (per curiam)............00000 7

Marshall v. Lonberger, 459 U.S. 422 (1983) .........c.sccceseeeee 6, 7,16

Mendiola v. Schomig, 224 F.3d 589 (7th Cir. 2000) ..............000. 11

Miller v. Fenton, 474 U.S. 104 (1985)... cccecceeseeeeceseeteeeneeeee 5,8

Miller-El v. Cockrell, 537 U.S. 322 (2003) (Miller-El 1) ..............00+.

eveatansiatenmanmesanensitannesasdenaneeniatiinsietiibatisasinmedeadiiiiieans 9, 16, 17, 18

Miller-El v. Dretke, 125 S.Ct. 2317 (2005) (Miller-El Il) ..............+.

connpuneestininssiionenesenesainesiinnbidemesisiatieitiinasaieioaiinnnmientnite 9, 14, 15, 17, 18

Miranda v. Arizona, 384 U.S. 436 (1966) ..........ccecceceeeeeeeeeeeneeees 8

Moran v. Burbine, 475 U.S. 412 (1986) ..........cccccccesseeesseneeeeesensees 8

Nix v. Whiteside, 475 U.S. 157 (1986) ..:.........scssceccessseeseseeneeeeenees 7

Pearls @. Fiat, SOG UG. FD CGI eacecerenesesssenssecsnesensncnsnsesenesnenentocens 7

Parker v. Dugger, 498 U.S. 308 (1991) .......cccecccceseesesessesesenssrereees 8

Patton v. Yount, 467 U.S. 1025 (1984) 200.0... ceecceeeeeeeseeeeeeeeenenees 7

Purkett v. Elem, 514 U.S. 765 (1995)...........ccccssssssssesssssssesssseesssnees 9

Rushen v. Spain, 464 U.S. 114 (1983) (per curiam)............00000000 7

Schiro v. Farley, S10 US. 222 (1992)............c.ccecscsessecersececsecseseoseses 8

Strickland v. Washington, 466 U.S. 668 (1984)...........ccccccecseseseeees 5

Sumner v. Mata, 449 U.S. 539 (1981) (Sumner I)............... 5, 6, 16

Sumner v. Mata, 455 U.S. 591 (1982) (per curiam) (Sumner Il) .. 6

Taylor v. Maddox, 366 F.3d 992 (9th Cir. 2004)... ccceceeeneeeeees

soihdesinenniansansenntitensciassesaienstaniiesiiia 11, 12, 13, 14, 15, 16, 17, 18, 22, 23

Thompson v. Keohone, 516 U.S. 99 (1995) 0... .ccsecseeeeseecesseeeneenes 8

Townsend v. Sain, 372 U.S. 293 (1963) ...........cccsscesecesscesecesseens 2,5

Valdez v. Cockrell, 274 F.3d 941 (5th Cir. 2001) .................. 11,13

Wainwright v. Goode, 464 U.S. 78 (1983) (per curiam) ...........0+ 6

Wainwright v. Witt, 469 U.S. 412 (1985) oe cececseeseeteeneeeeeeees 7

Wiggins v. Smith, 539 U.S. 510 (2003)................cccsccsceeeeceesensees 16

Williams v. Taylor, 529 RS Se CN sccemitpincnnrnenscenecninenten 15, 16

Statutes

So as pe ccrncernneresnertnanenaceencnsetnenemasinennenancnimisamiminiannits 2,9

Sa Oa: Op crccrcnscccmenenetmesenienunees 2, 4, 5, 6, 7, 10, 11, 15

Se ee. I wicnerscnnscnzeersneneneninemnecstnatnatninnutiniaiaainttn 16

SP ie BD ertenntreneememmernanenapiitinadiaenedinn

spesansensstatnetniiansesiiii 1, 2, 11, 12, 13, 14, 15, 16, 17, 21, 22, 23, 24

Fe re Bh ID censcnsemnsstesencnnicaictinntensintnnnetnseenigiaienniintit 9

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CRS eine! 1, 2, 10, 11, 12, 13, 14, 15, 16, 17, 22, 23, 24

SF ens Te scrcceranenincementinniniongenaninmniieiaiite 13

Other Authorities

Antiterrorism and Effective Death Penalty Act of 1996

| ee 1, 2, 4, 8, 9, 11, 14, 15, 16, 17, 24

vi

INTEREST OF AMICI

Amici States have a compelling obligation to protec

the finality of judgments rendered in their criminal courts.

The undoing of this finality in federal habeas corpus

litigation undermines public safety, deterrence of crime, and

effective rehabilitation; and the passage of time increases the

risk of unfairness and inaccuracy in later re-trial of the

criminal case. Additionally, under the doctrines of comity

and federalism, Amici States have a compelling interest in

their state court fact-findings and legal conclusions being

protected from overreaching federal courts. Under the

Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA), Congress enacted reforms giving state court

judgments their due deference while simultaneously

strengthening the longstanding deference owed to state court

factual findings. The decision from the Ninth Circuit Court of

Appeals undermines both of these principles.

SUMMARY OF ARGUMENT

State court factual findings have long been clothed in

this Court's presumption of correctness. Over the last 40

years, this presumption has expanded, both through the case

law from this Court and from the passage of the

Antiterrorism and Effective Death Penalty Act in 1996.

However, the passage of the AEDPA created two new

sections of law dealing with state court factual

determinations, 28 U.S.C. §§ 2254(d)(2) and (e)(1), which

various Circuit Courts of Appeal have construed differently.

Under the Fifth Circuit approach, a court first looks at the

facts under 28 US.C. § 2254(e)(1) and then determines

whether those facts are reasonable under 28 U.S.C.

§ 2254(d)(2). The Ninth Circuit takes the opposite approach,

making a determination whether the ultimate decision is

objectively reasonable. If the decision is not objectively

reasonable then the state factual findings are not entitled to

deference. Under the Third Circuit approach, a federal

district approach can start with either prong, because the two

sections serve separate legal purposes. Amici believe the

Third Circuit approach gives the proper deference to the

concepts of comity and federalism that are an integral part of

the federal habeas corpus jurisprudence, particularly the

AEDPA, and when the current case is properly analyzed

giving due weight to both 28 U.S.C. § 2254(d)(2) and to

28 U.S.C. § 2254(e)(1), then the decision from the Ninth

Circuit cannot stand and must be reversed.

ARGUMENT

A. Evolution of Habeas Jurisprudence

This Court has long recognized that historical factual

findings from state courts, as opposed to mixed questions of

law and fact, are owed great weight in federal habeas corpus

litigation. Townsend v. Sain, 372 U.S. 293 (1963). Townsend

articulated six circumstances where an evidentiary hearing

would not be necessary in federal court. Id. at 313. Townsend

also made clear that while “the state court has reliably found

the relevant facts, [the federal court should] defer to the

relevant findings of fact, [the federal court] may not defer to

its findings of law.” Id. at 318 (brackets added). Congress

responded to Townsend in 1966, inserting subsection (d) to

28 U.S.C. § 2254. The new 28 U.S.C. § 2254(d) included a

modified version of the Townsend factors. See Pub. L. 89-711,

§ 2(d).! Following the 1966 amendment, 28 U.S.C. § 2254(d)

read:

In any proceeding instituted in

a Federal court by = an

application for a writ of habeas

corpus by a person in custody

pursuant to the judgment of a

State court, a determination

after a hearing on the merits of

a factual issue, made by a State

court of competent jurisdiction

in a proceeding to which the

' In 1973, this Court called Townsend “the precursor” to the 1966

amendments to 28 U.S.C. § 2254. LaVallee v. Delle Rose, 410 U.S. 690,

694 (1973) (per curiam).

2

application for the writ and the

State or an officer of or agent

thereof were parties, evidenced

by a written finding, written

opinion, or other reliable and

adequate written indicia, shall

be presumed to be correct,

unless the applicant shall

establish or it shall otherwise

appear, or the respondent shall

admit —

(1) that the merits of the factual

dispute were not resolved

in the State court hearing;

(2) that the fact-finding

procedure employed by the

State court was_ not

adequate to afford a full

and fair hearing;

(3) that the material facts were

not adequately developed

at the State court hearing;

(4) that the State court lacked

jurisdiction of the subject

matter or over the person of

the applicant in the State

court proceeding;

(5) that the applicant was an

indigent and the State court,

in deprivation of his

constitutional right, failed

to appoint counsel to

represent him in the State

court proceeding;

(6) that the applicant did not

receive a full, fair and

adequate hearing in the

State court proceeding; or

(7) that the applicant was

otherwise denied due

process of law in the State

court proceeding;

(8) or urless that part of the

record of the State court

proceeding in which the

determination of | such

factual issue was made,

pertinent to a determination

of the sufficiency of the

evidence to support such

factual determination, is

produced as provided for

hereinafter, and the Federal

court on a consideration of

such part of the record as a

whole concludes that such

factual determination is not

fairly supported by the

record.

After Congress enacted 28 U.S.C. § 2254(d) in 1966,

this Court did not address this statutory provision for almost

six years. The first time the statute was noted in an opinion,

this Court concluded (with scant analysis) that an

evidentiary hearing was required because facts had been

inadequately developed in state court. Boyd v. Dutton,

405 U.S. 1, 3 (1972). A year after deciding Boyd, this Court for

the first time reversed the granting of a writ of habeas corpus

because the state court employed acceptable fact-finding

under 28 U.S.C. § 2254(d). LaVallee v. Delle Rose, 410 U.S. 690,

695 (1973) (per curiam). LaVallee concluded that because the

state court applied the correct legal standard in its analysis,

the federal courts could assume the state court made

2 This version of 28 U.S.C. § 2254(d) was in place 30 years later

when Congress enacted the AEDPA.

4

unstated factual findings that supported its conclusion. Id. at

694.

The parameters of 28 U.S.C. § 2254(d) received no

further Supreme Court interpretation until 1980.3 That year,

this Court reiterated the difference between “basic, primary,

or historical facts” and the legal conclusions that could be

drawn from them. Relying on Townsend, this Court held the

former were entitled to deference pursuant to 28 U.S.C.

§ 2254(d), while the latter were not. Cuyler v. Sullivan,

446 U.S. 335, 341-42 (1980).

Four years later, this Court determined that both of

the prongs for claims of ineffective assistance of counsel

involve legal conclusions and not mere factual findings

entitled to deference. Strickland v. Washington, 466 U.S. 668,

698 (1984). The next year, this Court held that the ultimate

issue of whether a confession is voluntary involves a

question of law not entitled to deference. Miller v. Fenton,

474 U.S. 104, 112 (1985).

A year after Cuyler, this Court emphatically stated

that the “interest in federalism recognized by Congress in

enacting 28 U.S.C. § 2254(d) requires deference by federal

- courts in factual determinations of all state courts.” Sumner

v. Mata, 449 U.S. 539, 547 (1981) (Sumner I). Sumner I also

held:

[I]t is clear that in adopting the

1966 amendment, Congress in

§ 2254(d) intended not only to

minimize that inevitable

friction [between federal and

state courts] but also to

establish that the findings made

by the state-court system “shall

be presumed to be correct”

unless one of seven conditions

> It is true that 28 U.S.C. § 2254(d) was mentioned in other

opinions. However, these cases provided no real analysis of

28 U.S.C. § 2254(d). See, e.g., Brewer v. Williams, 430 U.S. 387, 396-97

(1977) (merely noting that the federal district court relied on state

record in reaching its decision).

5

specifically set forth in

§ 2254(d) was found to exist by

the federal habeas court. If none

of those seven conditions was

found to exist, or unless

the habeas court concludes

that the relevant state-court

determination is not “fairly

supported by the record,” “the

burden shall rest upon the

applicant to establish by

convincing evidence that the

factual determinations by the |

State court was erroneous.”

Id. at 550 (emphasis in original) (bracketed text added). To

emphasize the point, Sumner I was revisited a year later, and,

in a short, per curiam order, this Court held, “Only when one

of seven specified factors is present or the federal court

determines that the state-court finding of fact ‘is not fairly

supported in the record’ may the presumption properly be

viewed as inapplicable or rebutted.” Sumner v. Mata,

455 U.S. 591, 592 (1982) (per curiam) (Sumner II).

A year after Sumner II, this Court further explained

the contours of 28 U.S.C. § 2254(d) and the deference owed to

state court factual findings. “This deference requires that a

federal habeas court more than simply disagree with the

state court before rejecting its factual determinations.

Instead, it must conclude that the state court's findings

lacked even ‘fair support’ in the record.” Marshall v.

Lonberger, 459 U.S. 422,_432 (1983) (internal punctuation

omitted).4 Citing LaVallee, Marshall also reiterated the

principle that factual findings could be presumed based

upon a state court's responsibility to follow the law. Id. at

433-34.

4 Complementing Marshall, this Court subsequently held in another

case that the Eleventh Circuit erred in substituting its own view of

the facts for that of the Florida Supreme Court. Wainwright v.

Goode, 464 U.S. 78, 86 (1983) (per curiam).

6

Marshall emphasized, “28 U.S.C. § 2254(d) gives

federal habeas courts no license to redetermine credibility of

witnesses whose demeanor has been observed by the state

trial court, but not by them.” 459 U.S. at 434.5 Finally,

Marshall noted, “We greatly doubt that Congress, when it

used the language ‘fairly supported by the record’

considered ‘as a whole’ intended to authorize broader

federal review of state court credibility determinations than

are authorized in appeals within the federal system itself.”

Id. at 434-35.

Contemporaneously with Marshall, this Court found

that a question of juror bias was entitled to deference. Rushen

v. Spain, 464 U.S. 114, 120 (1983) (per curiam). The next year,

Rushen was cited for the proposition that questions about a

juror’s perceptions about pre-trial publicity deserved similar

deference. Patton v. Yount, 467 U.S. 1025, 1036-37 (1984). One

term later, this Court found that a trial court’s determination

that a prospective juror could be excused for cause based on

the juror’s bias in rendering the death penalty also was

similarly entitled to deference. Wainwright v. Witt, 469 U.S.

412, 429 (1985).

Likewise, when a person is charged with “felony

murder,” the state findings of culpability for the underlying

felony are entitled to presumptions of correctness. Cabana v.

Bullock, 474 U.S. 376, 388 (1986). Similarly entitled to a

presumption of factual correction is a determination that a

defendant would have perjured himself if he testified. Nix v.

Whiteside, 475 U.S. 157, 182 (1986).

By 1992, this Court had held that while mixec

questions of law and fact were not entitled to deference,

inferences drawn from questions of historical fact were so

entitled. Park v. Raley, 506 U.S. 20, 35 (1992).

Indeed, after Marshall, this Court began to routinely

note that there were state factual findings entitled to

5 This Court used a brief per curiam decision at the end of the same

term to reiterate the point. Maggio v. Fulford, 462 U.S. 111, 113

(1983) (per curiam). Maggio also held that a determination of

competency is entitled to deference. Id. at 117. Accord Demosthenes

v. Baal, 495 U.S. 731, 735 (1990) (same).

7

deference, with little more than passing reference. See, ¢.g.,

Moran v. Burbine, 475 U.S. 412, 417 (1986) (state supreme

court’s recitation of facts of case entitled to deference);

Kuhlman v. Wilson, 477 U.S. 436, 441 (1986) (same); Parker v.

Dugger, 498 U.S. 308, 320 (1991) (same). See Schiro v. Farley,

510 U.S. 222, 232 (1992) (“Ordinarily on habeas review, we

presume the correctness of state court findings of fact”).

However, the deference was not unfettered. The

question of whether a confession was voluntary remained

subject to independent federal determination. Miller v.

Fenton, 474 U.S. 104, 113, 115, 117 (1985). Likewise, this Court

had no hesitation in finding that Florida’s procedure for

determining competency to be executed was not entitled to

deference. Ford v. Wainwright, 477 U.S. 399, 411 (1986). Nor

did this Court hesitate in determining that a post-trial bail

hearing was insufficient to provide a full hearing on a claim.

Kimmelman v. Morrison, 477 U.S. 365; 388 (1986).

Almost a decade later, this Court determined that the

question of whether someone was in custody for Miranda

warning purposes was a mixed question of law and fact, and

not entitled to deference. Thompson v. Keohone, 516 U.S. 99,

112 (1995).

Most significantly with respect to the current case,

this Court found that even when “directly reviewing” a

Batson-type’ allegation, the “credibility of the prosecutor's

explanation goes to the heart of the equal protection analysis,

and once that has been settled, there seems nothing left to

review.” Hernandez v. New York, 500 U.S. 352, 367 (1991).

Additionally, “Whether a _ prosecutor intended to

discriminate on the basis of race in challenging potential

jurors is, as Batson recognized, a question of historical fact.”

Id. at 367.

In a pre-AEDPA habeas case applying Batson, this

Court held:

In habeas proceedings in

federal courts, the factual

findings of state courts are

© Miranda v. Arizona, 384 U.S. 436 (1966).

’ Batson v. Kentucky, 476 U.S. 79 (1986).

8

a

—Pene

presumed to be correct, and

may be set aside, absent

procedural error, only if they

are “not fairly supported by

the record.” 28 USC.

§ 2254(d)(8).

Here the Court of Appeals did

not conclude or even attempt to

conclude that the state court's

finding of no racial motive was

not fairly supported by the

record. For its whole focus was

upon the reasonableness of the

asserted nonracial motive

(which it thought required by

step two) rather than the

genuineness of the motive. It

gave no proper basis for

overturning the state court's

finding of no racial motive, a

finding which turned primarily

on an assessment of credibility.

Purkett v. Elem, 514 U.S. 765, 769 (1995) (citations omitted)

(emphasis in original). In a post-AEDPA setting, this Court

found that the finding of absence of discriminatory intent is a

factual one entitled to a presumption of correctness. Miller-El

v. Cockrell, 537 U.S. 322 (2003) (Miller-El I).8 However,

deference does not preclude relief. Id. at 340.

B. The Current Federal Habeas Corpus Statute

As this Court knows, in 1996 Congress passed the

Antiterrorism and Effective Death Penalty Act (AEDPA). The

former section (d) of 28 U.S.C. § 2254 was heavily amended

* Last term, this Court found that the presumption of correctness

had been overcome. Miller-El v. Dretke, 125 S.Ct. 2317, 2340 (2005)

(Miller-El II). Miller-El II will be discussed at length, infra.

9

and became the new subsection (e). Further, a new

subsection (d) was added, which provides:

An application for a writ of

habeas corpus on behalf of a

person in state 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 = 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.

The relevant portion of the 28 U.S.C. § 2254(e)(1) now reads:

In a proceeding instituted 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.

As noted, the former 28 U.S.C. § 2254(d) was

amended to remove the eight limitations to the presumption

10

Fe De ee

—_

of correctness for factual issues and severely circumscribed

the ability of a federal court to hold an evidentiary hearing

on a state claim. Compare 28 U.S.C. § 2254(d) (former law)

with 28 U.S.C. §§ 2254(d)(2) and (e)(1) (current law).

While this new standard is demanding, this Court

has not had an opportunity to articulate how it is different

from the former statute. However, some of the Circuits have.

The Ninth Circuit has agreed with the Seventh Circuit,

holding that a key difference between the current habeas

corpus law and its predecessor is that the former law seemed

to require an evidentiary hearing for a factual finding to be

entitled to deference, while the current law does not. Buckley

v. Terhune, 397 F.3d 1149, 1157 (9th Cir. 2005); Mendiola v.

Schomig, 224 F.3d 589, 592-93 (7th Cir. 2000). The Fifth

Circuit apparently agrees as well. Valdez v. Cockrell, 274 F.3d

941, 951 (5th Cir. 2001).

Such inter-circuit unity is not as apparent in

addressing how the new 28 U.S.C. § 2254(d)(2) interacts with

28 U.S.C. § 2254(e)(1), however. Three separate approaches

have arisen.’ Unfortunately, the one chosen by the Ninth

Circuit frustrates the intent behind the AEDPA and the

deference federal law gives to state court proceedings.

The first approach is that taken by the Fifth Circuit in

Valdez. Under the Valdez approach, the district court must

evaluate the individual facts for correctness under 28 U.S.C.

§ 2254(e)(1) and then determine, under 28 U.S.C. § 2254(d)(2),

whether the conclusion was reasonable. Valdez, 274 F.3d at

951 n.17. Accord Foster v. Johnson, 293 F.3d 766. 776 (5th Cir.

2002).

The Ninth Circuit approach is opposite the Valdez

approach. Taylor v. Maddox, 366 F.3d 992 (9th Cir. 2004).

Under the Taylor approach, the state fact-finding process is

reviewed first. Once the process survives that review, only

then do the factual determinations enjoy the presumption of

correctness. Id. at 999-1000.

* A fourth circuit has noted that it has not yet decided whether a

petitioner must prevail under both 28 U.S.C. § 2254(d)(2) and

28 U.S.C. § 2254(e)(1) in order to be entitled to relief. Green v.

Travis, 2005 WL 1581265, n.6 (2nd Cir. July 7, 2005).

11

In Taylor, the Ninth Circuit found that because

neither the state judge nor the appellate court weighed the

credibility of a third witness at the suppression hearing, and

because this witness (an attorney) testified in an apparently

credible manner, then state fact-finding process was

deficient. Taylor, 366 F.3d at 1009-10. Taylor also apparently

made a determination that a police officer who testified was

not credible because he threw away his notes and was not

present at all relevant times. Jd. at 1011-13."

The Third Circuit has taken a middle course. Lambert

v. Blackwell, 387 F.3d 210 (3rd Cir. 2004). Lambert held:

We therefore read § 2254(d)(2)

and § 2254(e)(1) together as

addressing two somewhat

different inquiries. The

fundamental prerequisite to

granting the writ on factual

grounds is consideration of the

evidence relied upon in the

state court proceeding. Section

2254(d)(2) mandates the federal

habeas court to assess whether

the state court's determination

Within this overarching

standard, of course, a petitioner

may attack specific factual

determinations that were made

by the state court and that are

subsidiary to the ultimate

decision. Here, section

2254(e)(1) comes into play,

instructing that the state court's

determination must be afforded

a presumption of correctness

that the petitioner can rebut

only by clear and convincing

evidence. In this inquiry, a

petitioner may develop clear

and convincing evidence by

way of a hearing in federal

court as long as he satisfies the

necessary prerequisites. See 28

U.S.C. § 2254(e)(2). In the final

analysis, however, even if a

state court’s individual factual

determinations are overturned,

was reasonable or unreasonable = . rt the ae td , rod

given that evidence. If the state ee ee eee

must still be weighed under the

court's decision based on such a

determination is unreasonable

in light of the evidence

overarching standard of section

2254(d)(2).

presented in the state court Id. at 235-36. Lambert noted the existence of both Valdez and

proceeding, habeas relief is Taylor, and held that, depending on the circumstances,

warranted. 28 U.S.C. § 2254(d)(2) might be addressed first some of the

time and 28 U.S.C. § 2254(e)(1) might be addressed first at

other times:

We adopt no rigid approach to

habeas review of state fact-

finding. In some circumstances,

Because the current case pre-dates Taylor, the Taylor approach is feder wish

not cited, although it follows a very similar approach. See Collins v. pon freee: Jeet

Rice, 365 F.3d 667, 676-77 (9th Cir. 2004) (explaining the standard a ae

being followed. | to individual fact-finding in the

12 13

first instance applying the

presumption of correctness as

instructed by (e)(1). Then, after

deciding these challenges, the

court will view the record

under (d)(2) in light of its

subsidiary decisions on the

individual challenges. In other

instances, a federal court could

conclude that even if petitioner

prevailed on all of his

individual factual challenges

notwithstanding the (e)(1)

presumption of their

correctness, the remaining

record might still uphold the

state court's decision under the

overarching standard of (d)(2).

In that event, presumably the

(d)(2) inquiry would come first.

Id. at 236, n.19.

The problem with the Ninth Circuit's Taylor approach

is that it allows a federal court to find the state fact-finding

deficient and then give no deference to any facts the state

court found. Indeed, that is exactly what the Ninth Circuit

did as recently as August 1 in an unpublished decision:

“Because the district court properly set aside the state court's

fact-finding as unreasonable under § 2254(d)(2),

§ 2254(e)(1)’s presumption of correctness and its clear-and-

convincing standard of proof do not come into play.” Garcia

v. Runnells, 2005 WL 1799417, *2 (9th Cir. August 1, 2005).

This, of course, is anathema to the fundamental

purposes behind the AEDPA. As Justice Thomas noted

recently in his Miller-E! I] dissent, “The passage of time, as

AEDPA requires and as this Court has held, counsels in

favor of more deference, not less.” Méiller-El v. Dretke, 125

S.Ct. 2317, 2351 (2005) (Miller-El 11) (Thomas, J., dissenting)."!

'! Justice Thomas was joined by the Chief Justice and Justice Scalia.

14

ea

Likewise, Justice Stevens noted in an earlier case:

[28 U.S.C. § 2254(d)(2)] bolsters

our conviction that federal

habeas courts must make as the

starting point of their analysis

the state courts’ determinations

of fact, including that aspect of

a “mixed question” that rests

on a finding of fact. AEDPA

plainly sought to ensure a level

of “deference to the

determinations of state courts,”

provided those determinations

did not conflict with federal

law or apply federal law in an

unreasonable way. H.R. Conf.

Rep. No. 104-518, p. 111 (1996).

Congress wished to curb

delays, to prevent “retrials” on

federal habeas, and to give

effect to state convictions to the

extent possible under law.

When federal courts are able to

fulfill these goals within the

bounds of the law, AEDPA

instructs them to do _ so.

Williams v. Taylor, 529 U.S. 362, 386 (2000) (Stevens, J.,

concurring).'2 When Justice Stevens’ observation is read in

pari materia with Justice Thomas’ views in his Miller-El Il

dissent, then the Ninth Circuit's Taylor analysis of the

interplay between 28 U.S.C. §§ 2254(d)(2) and (e)(1) cannot

withstand judicial scrutiny.

It should be noted that in the one case where this

Court has addressed the interplay between §§ 2254(d) and

(e)(1), the analysis started with 28 U.S.C. § 2254(e)(1) and

then turned to 28 U.S.C. § 2254(d)(2). This Court stated: “The

state court's assumption that the records documented

2 This language is from the main opinion of the Court, but in a

section only joined by Justices Souter, Ginsberg, and Breyer.

15

instances of this abuse has been shown to be incorrect by

‘clear and convincing evidence,’ 28 U.S.C. § 2254(e)(1), and

reflects ‘an unreasonable determination of the facts in light of

the evidence presented in the State court proceeding,’

§ 2254(d)(2).” Wiggins v. Smith, 539 U.S. 510, 528 (2003).

In contrast, the Ninth Circuit's Taylor analysis clearly

side-stepped the clear and convincing standard of proof.

More significantly, the Ninth Circuit's approach not only

undermines the purposes behind the AEDPA, it also

effectively undermines the pre-AEDPA line of cases dealing

with deference a federal court must give to state court fact-

finding—including LaVallee, Sumner I, Marshall, and

Hernandez.

This Court's decisions analyzing 28 . USC.

§ 2254(d)(1) lead to the inexorable conclusion that the Ninth

Circuit's approach is wrong. Both 28 U.S.C. §§ 2254 (d)(1)

and (d)(2) use the word “unreasonable” as modifiers. Section

(d)(1) uses “unreasonable” to modify “application of clearly

established Federal law, as determined by the Supreme

Court of the United States.” Section (d)(2) uses

“unreasonable” to modify “determination of the facts of the

evidence presented in the State court proceeding.”

This Court has held, “The ‘unreasonable application’

clause requires the state court decision to be more than

incorrect or erroneous. The state court's application of clearly

established law must be objectively unreasonable.” Lockyer

v. Andrade, 538 U.S. 63, 75 (2003) (citing Williams, 529 U.S. at

409).13

The Miller-El | decision provides additional support

for this conclusion. “To secure habeas relief, petitioner must

demonstrate that a state court's finding of the absence of

purposeful discrimination “Was incorrect by clear and

convincing evidence, 28 U.S.C. § 2254(e)(1), and that the

corresponding factual determination was ‘objectively

3 Indeed, Taylor itself appears to recognize that the term

“unreasonable” has the same meaning in the context of its usage in

both 28 U.S.C°§§°2254(d)(1) and (d)(2). Taylor, 366 F.3d at 999.

However, Taylor ultimately pays little more than lip service to the

deference that the AEDPA requires.

16

“Soo Ue 2 aR Ongar

unreasonable’ in light of the record before the court.” Miller-

El I, 537 U.S. at 348. Interestingly, although Taylor had this

Court’s guidance from Miller-El I on how to apply factual

findings under the AEDPA, the Ninth Circuit does not cite

Miller-El 1.

Miller-El I can be fairly read to support the

proposition that a federal court first analyze the facts

pursuant to 28 U.S.C. § 2254(e)(1). The facts that survive this

scrutiny then are analyzed pursuant to 28 U.S.C. § 2254(d)(2).

The Fifth Circuit clearly follows this approach. The Third

Circuit is clearly faithful te this approach. The Ninth Circuit

clearly does not follow this approach.

This leads to the current case before this Court.

Miller-El II left no doubt that a Batson claim can definitely

succeed in federal habeas corpus given a_ particularly

egregious set of facts.

In Miller-El II, this Court articulated the standard it

was following in reaching the Batson claim, by initially

noting that “a defendant may rely on ‘all relevant

circumstances’ to raise an inference of purposeful

discrimination.” Miller-El II, 125 S.Ct. at 2325 (quoting Batson,

476 U.S. at 96-97). Miller-E! II also stated the standard for

review as follows:

Under the Antiterrorism and

Effective Death Penalty Act of

1996, Miller-El may obtain relief

only by showing the Texas

conclusion to be “an

unreasonable determination of

the facts in light of the evidence

presented in the State court

proceeding.” 28 U.S.C.

§ 254(d)(2). Thus we presume

the Texas court's factual

findings to be sound unless

Miller-El rebuts the

“presumption of correctness by

clear and convincing evidence.”

§ 2254(e)(1). The standard is

17

demanding but not insatiable;

as we said the last time this

case was here, “[dleference

does not by Jefinition preclude

relief.”

Miller-El Il, 125 S.Ct. at 2325 (quoting Miller-El 1, 537 U.S. at

340)."4 In Miller-El II, this Court found no coincidence that

out of twenty prospective black jurors, ten were struck for

cause, nine were struck by peremptory challenge, and only

one served. Id. This Court also found “more powerful” the

evidence showing that the prosecutor treated differently

black and white prospective jurors with similar attributes.

Id. at 2325-26.

Equally significant, the prosecutor's stated reason for

striking one black juror was in direct contradiction to that

juror’s testimony. Miller-El Il, 125 S.Ct. at 2327. Other

explanations seemed similarly implausible. Id. at 2327-28;

2329-30. Miller-El I] also noted:

It is true that peremptories are

often the subjects of instinct,

and it can sometimes be hard to

say what the reason is. But

when illegitimate grounds like

race are in issue, a prosecutor

simply has got to state his

reasons as best he can and

stand or fall on the plausibility

of the reasons he gives. A

Batson challenge does not call

for a mere exercise in thinking

up any rational basis.

Miller-E! I], 125 S.Ct. at 2332 (citation omitted).

The Court looked at, other evidence, including the

“past practice” of the Dallas County District Attorney, the

'* This standard also seems antithetical to the Ninth Circuit's Taylor

standard.

18

use of “jury shuffling,” and how the prosecution questioned

prospective black and white jurors, including the use of a

“graphic script.” 125 S.Ct. at 2332-37. Finally, the Court

found evidence that the prosecution used a 20-year old

manual that included listing prospective jurors by race. Id. at

2339-40.

This contrasts sharply with what happened in the

current case. According to the Ninth Circuit’s majority

opinion, the majority saw purposeful discrimination in the

following factors:

There is, however, substantial

evidence supporting Collins’

contention that the prosecutor

dismissed Juror 016 because of

her race—evidence that the

appellate court failed to

address. The trial record

demonstrates that the

prosecutor’s justifications for

dismissing Juror 016 on the

basis of her age were contrary

to the record (likely tolerance of

drug offenders), were unrelated

to her ability to serve as a juror

in Collins’ case (lack of

community ties), and were not

applied equally to white jurors

(single with no children). The

record also shows that one of

her justifications was patently

discriminatory (gender), while

one of her justifications for

dismissing Juror 019 was

contrary to the record (age). In

sum, the record demonstrates

that the prosecutor’s proffered

reasons for dismissing Juror 016

were wholly _ implausible,

unpersuasive, and a pretext for

discrimination on the basis of

her race.

19

Collins, 366 F.3d at 684-85 (footnote omitted).

Additionally, the Collins majority found: discriminate on the basis of race in

The facts underlying the appellate

court’s conclusion, namely that the

trial court properly accepted the

prosecutor's justifications that Juror

016 was young and had exhibited an

improper demeanor, are

unsupported by the record. Collins’s

claim of pretext, however, is

supported by the record —the record

contains clear and _ convincing

evidence that the prosecutor's

reasons for striking Jurors 016 and

019 were pretextual. Thus, not only

were the state appellate court's

factual determinations not

supported by the record, but the

record also demonstrates that the

appellate court's ultimate conclusion

that the trial court did not err in

finding that Collins failed to

establish purposeful discrimination

was objectively unreasonable. The

fact that the appellate court failed to

address all the evidence relating to

the prosecutor’s justification for

striking Juror 016 and _ indeed

disregarded this evidence by stating

that “nothing in the present record

.. indicates the trial court did not

approach its task appropriately”

highlights the objective

unreasonableness of its assessment

of the record. Collins has thus

shown by “clear and convincing

evidence” that the state appellate

court’s determination, that the

prosecutor did not purposefully

20

striking Juror 016, “was based on an

unreasonable determination of the

facts in light of the evidence

presented in the state court

proceeding.” 28 U.S.C. § 2254(d)(2).

Id. at 685 (footnote omitted).

However, these findings do not stand up to

as Judge Hall’s able dissent demonstrates:

Both the trial judge and defense

counsel clearly indicated that they

understood the prosecutor's

justification for striking Juror 019 to

be her daughter’s drug problem, and

the prosecutor’s justification for

striking Juror 016 to be that, like

Juror 006, she was young, single,

and potentially tolerant. Under these

circumstances, the majority’s focus

on the prosecutor’s misstatement, an

issue that was not briefed by the

parties, is nothing short of absurd.

The majority also argues that the

trial judge should have questioned

the prosecutor’s credibility because

the prosecutor cited a desire to have

“more male-female balance” in the

jury as a race-neutral basis for

excluding Juror 016. The majority

places undue emphasis on _ the

prosecutor's arguably improper

reference to gender. The prosecutor

cited a variety of other race-neutral

21

scrutiny,

Id. at 688-89 (Hall, J., dissenting). Judge Hall further noted:

justifications, including Juror 016’s

demeanor, youth, marital status, and

possible tolerance. There is no

indication in Supreme Court

precedent, or in cases from our

circuit for that matter, that a trial

judge’s decision to reject one of

the prosecutor's race-eutral

justifications compels the trial judge

to reject all of the other race-neutral

justifications offered by _ that

prosecutor. In the instant case, the

trial judge rejected the prosecutor's

gender-balance justification, but

nonetheless chose to credit the

prosecutor's other race-neutral

justifications for the challenge. The

majority highlights nothing in the

record to indicate that the California

Court of Appeal should have

deemed this decision clearly

erroneous.

Id. at 689 (footnote omitted).

Judge Bea, in his dissent from the denial of rehearing

en banc, was just as forceful in denouncing the majority’s re-

weighing of the prosecutor's credibility. “In reversing this

determination on the habeas petition, the majority opinion

demeans demeanor evidence and nitpicks the record to find

that, as a matter of law, the trial judge cannot find the

prosecutor credible if there is evidence in the record to

support the opposite conclusion. Instead of reviewing the

evidence for clear error the majority conducted a de novo

review in this case.” Collins, 365 F.3d at 671 (Bea, J.,

dissenting from denial of rehearing en banc).

The Collins majority made two crucial errors, both

related to their application of 28 U.S.C. § 2254(e)(1) and

§ 2254(d)(2). First, although Taylor is not cited, the Collins

majority examines a result it does not like and concludes that

22

the petitioner is entitled to relief because there was an

unreasonable application of the facts.‘5 Second, even

though the state court fact-finding is clothed in a

presumption of correctness—including a state court's

determination of a prosecutor's credibility—the Collins

majority gives little more than lip service to the habeas

statute or even this Court’s non-habeas corollaries to Batson.

See Hernandez, 500 U.S. at 364 (even on direct review, state

court’s credibility determination entitled to “great

deference”).

The California Court of Appeal found that the trial

court “was satisfied” that the prosecutor excused Juror 19

because the juror had a family member with drug problems.

Appendix to Petition for Writ of Certiorari 113. The Court of

Appeal further found that the prosecutor had properly used

age as a factor in his peremptory challenge for Juror 16 and

observed that the trial court was willing to give the

prosecutor “the benefit of the doubt” with respect to the

explanation that Juror 16 rolled her eyes. Appendix 115-17.

Under the Third Circuit's Lambert approach, which

Amici endorse, Collins has not shown clear-and-convincing

evidence to overcome the presumption of correctness

28 U.S.C. § 2254(e)(1) affords state court factual findings.

Indeed, there was no federal court hearing to rebut these

factual findings at all.

Similarly, there was _ nothing “objectively

unreasonable” in the way the state courts applied the facts in

this case. Thus, Collins does not satisfy 28 U.S.C.

§ 2254(d)(2), either.

15 This, of course, is unremarkable, since Taylor post-dates Collins.

However, since Amici are urging this Court to adopt a uniform

national standard for applying 28 U.S.C. §§ 2254(d)(2) and (e)(1),

the temporal relationship between and Taylor and Collins is

ultimately irrelevant.

23

CONCLUSION

This Court should take the opportunity to fully

address the tension between 28 U.S.C. §§ 2254(d)(2) and

(e)(1). Amici urge this Court to adopt an approach similar to

that adopted by the Third Circuit because it promotes both

comity and federalism between state and federal courts.

Congress has shown its respect to both comity and

federalism through the enactment of the AEDPA. This Court

has shown its respect in the evolution of its habeas corpus

decisions. Only the Ninth Circuit has rejected the

requirements of the AEDPA and the jurisprudence of this

Court to arrive at its own standard of review in federal

habeas corpus matters. Because the Court of Appeals used an

improper standard in granting Coilins habeas corpus relief,

its judgment must be reversed.'¢

Respectfully Submitted,

BRIAN SANDOVAL

Attorney General

State of Nevada

DAVID K. NEIDERT *

Senior Deputy Attorney General

Criminal Justice Division

5420 Kietzke Lane, Suite 202

Reno, Nevada 89511

Telephone: (775) 850-4110

* Counsel of Record

Additional counsel listed inside the front cover

16 The State of Texas urges this Court to adopt the Fifth Circuit

approach, but otherwise joins this brief in support of the

Petitioners.

24