Reply Brief — Bell v. Thompson

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[Supreme Court, U.S

FILED

No. 04-514 | NOV 36 2004

CLE

)

“J

In The

Supreme Court of the United States

RICKY BELL, WARDEN,

Petitioner,

GREGORY THOMPSON,

Respondent.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Sixth Circuit

REPLY BRIEF OF PETITIONER

PAUL G. SUMMERS

Attorney General

State of Tennessee

MICHAEL E. MOORE

Solicitor General

JENNIFER L. SMITH

Associate Deputy Attorney General

Counsel of Record

OFFICE OF THE ATTORNEY GENERAL

P.O. Box 20207

Nashville, Tennessee 37202

(615) 741-3487

Attorneys for Petitioner

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COCKLE LAW BRIEF PRINTING CO (800) 225-6964

OR CALL COLLECT (402) 342-2831

ARGUMENT

In opposing certiorari, respondent insists that review

is unwarranted because (1) a motion filed by petitioner,

but never ruled upon by the Sixth Circuit, constituted

“good cause” to withhold issuance of the mandate despite

the mandatory language of Fed. R. App. P 41(d)(2)(D), (2) the

federal district court had already issued an order staying

Thompson’s execution while he litigated his competence-for-

execution claim under Ford v. Wainwright, 477 U.S. 399

(1986), and (3) the threshold requirements for an eviden-

tiary hearing under 28 U.S.C. §2254(e)(2) are inapplicable

to his case. None of respondent’s arguments is sound.

1. Respondent argues that, because the petitioner

failed to take “steps to attempt to finalize the federal

ſhabeas] case,” the Sixth Circuit should not be faulted for

its failure to comply with the requirement of Fed. R. App.

P. 41(d\(2)(D) that the mandate issue “immediately” upon

the filing of an order of this Court denying certiorari

review. Specifically, he asserts that a motion filed with the

Sixth Circuit in August 2003, but never ruled upon by the

court, in which petitioner sought reconsideration of an

order appointing Federal Defender Services of Eastern

Tennessee, Inc., to represent Thompson in an unrelated

state-court proceeding, relieved the Sixth Circuit of its

obligation to issue the mandate. (Brief in Opposition,

pp. 21-22) Respondent points to no rule or decision of this

Court supporting his contention that petitioner was under

any affirmative obligation to “finalize” proceedings or

“move for issuance” of the mandate; rather, Rule

41(d\(2D) requires immediate issuance of the mandate

upon the filing of an order denying certiorari review of the

judgment of the court of appeals. The fact that the Sixth

Circuit failed to dispose of a properly-filed motion in a timely

manner does not excuse non-compliance with the unambigu-

ous requirement of Rule 41. Indeed, the state-court pro-

ceeding at issue in petitioner’s motion was concluded in

October 2003 through termination of Thompson’s court-

appointed conservatorship, thus rendering disposition of

petitioner’s motion moot. Moreover, it was unnecessary for

petitioner to challenge the Sixth Circuit’s action in a

petition for rehearing in order to preserve the issue for

review by this Court. The Sixth Circuit rules, in fact, make

clear that the filing of a petition for rehearing “is not a

prerequisite to the filing of a petition for writ of certiorari.”

6 Cir. R. 35(b).

2. Respondent’s contention that the Sixth Circuit’s

decision did not alter the posture of the case because Thomp-

son’s execution had already been stayed by the district court

is misleading. (Brief in Opposition, pp. 23-24) Thompson’s

Ford claim was ripe for review by the state and federal

courts only because of his imminent execution date. On June

14, 2004, following expedited competency proceedings in the

Tennessee state courts, Thompson filed a petition for writ of

habeas corpus under 28 U.S.C. §2254. See Stewart v. Marti-

nez-Villareal, 523 U.S. 637, 644-45 (1998) (Ford claim not

“second or successive” petition; when execution not immi-

nent, competency to be executed may not be determined at

that time). Seven days later, on June 21, 2004, the district

court entered a “brief stay” of Thompson’s execution, with the

stay to expire immediately upon issuance of an order of the

court denying habeas relief but to remain in place upon

issuance of an order granting the writ. The court further

ordered the Warden to file a response to the Ford petition

within ten days of the date of the order. Given the Tennessee

Supreme Court’s thorough treatment of the competency

issue after considering the reports of Thompson’s three

mental health experts (App. 352) and the highly deferential

standard of review under 28 U.S.C. §2254(d), Thompson's

Ford claim likely would have been resolved summarily in

favor of the Warden. In any event, the Sixth Circuit’s subse-

quent stay order (App. 6) not only removed any possibility

that Thompson’s execution would take place on August 19,

2004, as scheduled since February 2004, it nullified the

state-court competency proceedings previously conducted in

reliance upon that execution date.

3. Finally, respondent’s contention that §2254(e)(2)

has been rendered “inapplicable” to his case by subsequent

state-court proceedings has no record support. To bolster his

argument, respondent improperly relies upon and presents

as Appendices to his Brief in Opposition materials outside

the record in the case below, specifically, the Petition for

Writ of Error Coram Nobis filed May 29, 2001, in the

Circuit Court of Coffee County, Tennessee (Respondent's

Appendix B, Attachments A-B), the Reply to Response to

Petition for Writ of Error Coram Nobis filed on or about

July 1, 2001 (Respondent’s Appendix C, Attachments A-M),

the Opinion and Order of the Coffee County Circuit Court

filed September 5, 2001 (Respondent’s Appendix D), and the

Judgment and Opinion of the Tennessee Court of Criminal

Appeals from the denial of Thompson’s petition for writ of

error coram nobis filed August 15, 2002. (Respondent's

Appendices E and F) The first full paragraph under Part V

of respondent's brief in opposition consists of argument

based on those materials. Because the materials listed above

are not part of the record in this case and thus not before the

Sixth Circuit when it rendered its decision, neither they nor

any argument based upon them is properly before this

Court and provides no basis to deny certiorari. See Sup. Ct.

R. 12.7 (“The clerk of the court having possession of the

record shall keep it until notified by the Clerk of this Court

to certify and transmit it. In any document filed with this

Court, a party may cite or quote from the record, even if it

has not been transmitted to this Court”); see also Russell v.

Southard, 53 U.S. (12 How.) 139, 159 (1851) (“This court

must affirm or reverse upon the case as it appears in the

record”).

Moreover, the sole quotation from the lower court’s

opinion provided by respondent in support of his conten-

tion that the Sixth Circuit “substantially complied” with

§2254(e)(2) is not contained within the majority opinion of

the court, but in the concurring/dissenting opinion of a

single judge. (Brief in Opposition, p. 38) Because the opinion

of the Sixth Circuit is devoid of any justification, explanation

or limitation on its mandate that the district court conduct a

“full evidentiary hearing” and is thus contrary to the provi-

sions of §2254(e2) and this Court’s decisions, certiorari is

warranted under Sup. Ct. R. 10(a) and (c).

Like wise, respondent's reliance upon Judge Suhrheinrich’s “fraud

on the court” determination as a basis for denying certiorari review is

misplaced; it does not constitute an “alternative holding” of the court as

asserted by respondent. (Brief in Opposition, pp. 33-34) See also

Petition for Writ of Certiorari, p. 14 n.2.

CONCLUSION

For the reasons stated, the petition for a writ of

certiorari should be granted.

Respectfully submitted,