# Amicus Curiae Brief — Rice v. Collins

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0025%3A07

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2006
- **Citation:** 546 U.S. 333

## Text

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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i (| ____ETTT T nT e iii
EE cncicisccecencescanscenesecensnescsnctnetcenuestvssuemnseiesl iv
ee 1
Fe I 1
ET EE 2

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

ok a es We A ae
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0025%3A07. Public record. Not legal advice.