Petition for Writ of Certiorari — In re Calderon

Sapreme Court, US

FILED

7

931418 FEB 22 19%

No. 94 -

QFFICE OF THE €LERK

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1994

In re ARTHUR CALDERON,

Warden of San Quentin

Prison and

DANIEL E. LUNGREN,

Attorney General of the

State of California

PETITION FOR WRIT OF MANDAMUS TO THE

UNITED STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT (WILLIAM C. CANBY, JR.,

STEPHEN REINHART, AND STEPHEN S. TROTT,

CIRCUIT JUDGES)

DANIEL E. LUNGREN, Attorney General

of the State of California

GEORGE WILLIAMSON, Chief Assistant

Attorney General

GARY W. SCHONS, Senior Assistant

Attorney General

HOLLY D. WILKENS

Supervising Deputy Attorney General

PAT ZAHAROPOULOS,

Supervising Deputy Attorney General

110 West A Street, Suite 1100

Post Office Box 85266

San Diego, California 92186-5266

Telephone: (619) 645-2209

Attorneys for Petitioner

QUESTION PRESENTED

Does the state’s interest in the

administration of criminal justice and

finality of judgments dictate that the

Ninth Circuit Court of Appeals should

issue an opinion in a capital case after

denial of habeas corpus within 120 days of

submission of a case for decision

following briefing and oral argument?

Is the failure to issue an opinion

seven months after oral argument in a

death penalty case and over five years

after issuance of a federal stay of

execution inconsistent with this Court's

directive in In re Blodgett, 502 U.S.

____, 116 L. Ed. 2d 669, 112 S. Ct. 674

(1992) that the court must “exercise all

due diligence and render its opinion

forthwith”?

PARTIE

Warden Arthur Calderon and California

Attorney General Daniel E. Lungren are the

- ii. -

Petitioners for the State of California.

Melvin Meffrey Wade, an inmate sentenced

to death under the laws of California, is

the subject of the underlying appeal from

the denial of a Petition for Writ of

Habeas Corpus.

- iii. -

QUESTION PRESENTED

PARTIES

JURISDICTION

i

i

OPINIONS BELOW 2

5

STATEMENT OF THE CASE 6

9

REASONS FOR GRANTING THE WRIT

THE NINTH CIRCUIT’S UNREASONABLE

DELAY IN DECIDING WADE’S APPEAL

FROM THE DENIAL OF HABEAS CORPUS

IN THIS CAPITAL CASE VIOLATES

THE DUE PROCESS RIGHTS OF

CALIFORNIA AND THE STATE'S

ABILITY TO TIMELY ENFORCE ITS

LAWS 9

1. The Ninth Circuit Court of

Appeals has a duty to act ina

prompt fashion in capital habeas

corpus cases 13

2. Mandamus is the only available

means to ensure the prompt

resolution of the instant case 14

3. California requests that this

Court exercise its supervisorial

authority and establish a 120-

day time limit for ruling on

appeals from denial of habeas

corpus on capital cases 19

CONCLUSION 24

- iv. -

TABLE OF AUTHORITIES

Page

Cases

Allied Chemical Corp v. Diaflon Inc.

449 U.S. 33 (1980) aan

Chandler v. Judicial Council

398 U.S. 74 (1970) 19

Cohens _v. Virginia,

19 U.S. (6 Wheat.) 264 (1821) 18

s

U.S.

Ti5 L. Eds 2d 640,

111 S. Ct. 2546 (1991) 22

Ex Parte Newman

81 U.S. (14 Wall.) 152 (1872) 11, 15

Francis v. Henderson

425 U.S. 536 (1976) 22

Hamilton v. Vasquez,

F.2d

94 DAR 1490 ( (9th Cir. 2/3/94) 21

,

502 U.S.

+ i ae. > t. 674,

116 L. Ed. 2d 669 (1992) 14, 16

Insurance Company v. Comstock,

83 U.S. (16 Wall.) 258 (1872) 12, 15

Vv. z

5 F.3d 1199 (9th Cir. 1992) 21

rs

832 F. aa 476 (9th Cir. 1987) 21

Cases

Johnson v. Rogers,

917 F.2d 1283 (10th Cir. 1990) 13

Jones v. Shell,

572 F.2d 1278 (8th Cir. 1978) 18

LaBuy v. Howes Leather Company,

352 U.S. 249 (1957) 12, 149

Lewis v. Jeffers,

497 U.S. 764 (1990) 21

Mallard v. United States

Dist. Court for the

P . Of Iowa,

490 U.S. 296, (1989) Aas 20

McClellan v. Young,

421 F.2d 690 (6th Cir. 1970) 13, 18

McCleskey v. Zant,

499 U.S. P

111 S. Ct. 1454,

113 L. Ed. 2d 517 (1991) 16, 17

Roche v. Evaporated Milk Association,

319 U.S. 21 (1943) 11

Teague v. Lane,

489 U.S. 288 (1989) 22

Thermtron Prods., Inc. v. Hermansdorfer,

423 U.S. 336 (1976) 12

Van Buskirk v. Wilkinson,

216 F.2d 735 (9th Cir. 1954) 13

- vi. -

ne tl Ly

Will _v. Calvert Fire

Insurance Company

437 U.S. 65 (1978) 11, 12, 15

Statutes

28 U.S.C. § 1651(a)

Other Authorities

40 Am. Univ. Law Rev. 1 (1990)

Bator, Finality in Criminal

Law and Federal Habeas Corpus

for State Prisoners,

76 Har. L. Rev. at 452-453 (1963)

11

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1994

In re ARTHUR CALDERON,

Warden of San Quentin

Prison and

DANIEL E. LUNGREN,

Attorney General of the

State of California

PETITION FOR WRIT OF MANDAMUS TO THE

UNITED STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT (WILLIAM C. CANBY, JR.,

STEPHEN REINHART, AND STEPHEN S. TROTT,

CIRCUIT JUDGES)

Petitioners pray that, pursuant

to the All Writs Act, (section 1651,

subdivision (a) of Title 28 of the United

States Code), a Writ of Mandamus be issued

in Wade v. Vasquez, Case Number 90-56332,

to compel the United States Court of

Appeals for the Ninth Circuit (the

Honorable William C. Canby, Jr., Stephen

Reinhart, and Stephen S. Trott, Circuit

Judges) to decide the appeal that has been

pending before it for over three years

a 3. «

since the initial certificate of probable

cause issued and over seven months since

oral argument was heard and the case was

submitted for decision.

OPINIONS BELOW

Melvin Wade, an inmate sentenced

to death under the laws of California, has

appealed the denial of his petition for

writ of habeas corpus challenging his 1982

state court conviction. A federal stay of

execution issued on January 12, 1989,

remains in effect.

On May 21, 1982, Melvin Wade was

sentenced to death for the murder of his

10-year-old step-daughter. His conviction

and sentence were affirmed on direct

appeal. People v. Wade 44 Cal.3d 366, 750

P.2d 794, 244 Cal.Rptr. 905 (1988); Wade

v. California, 488 U.S. 100, 102 L. Ed. 2d

237, 109 S. Ct. 248 (1988).

On January 12, 1989, a stay of

execution was issued by the district court

Sees |

;

:

a 8, «

and a Petition for Writ of Habeas Corpus

was filed. On February 12, 1990, the

district court ordered an evidentiary

hearing on claims of ineffective

assistance of counsel and jury misconduct.

After an evidentiary hearing, the district

court denied writ of habeas corpus on

September 14, 1990. Wade v. Vasquez, 752

F.Supp. 9, 31 (C.D. Cal. 1990).

Certificate of Probable Cause was issued

on December 17, 1990.

On April 21, 1992, the Ninth

Circuit Court of Appeals supplemented the

record on appeal with special counsel's

exhibits A through Z and remanded the case

to the district court to permit special

counsel to present additional facts on

Wade's pre-hearing request for

substitution of counsel and to permit the

district court to receive any additional

evidence it deemed appropriate on the

conflict issue. The district court held a

:

,

,

« é, -«

second evidentiary hearing on remand on

August 31, and September 1, 1992. On

December 9, 1992, the district court

issued an opinion and order finding

neither Attorney Helft nor the public

defender had any conflict of interest.

Certificate of Probable Cause issued on

March 4, 1991.

Both the merits and conflict

issues were briefed on appeal. On June

16, 1993, oral argument was presented to

Justices Reinhart, Canby and Trott and the

case was submitted for decision. No

opinion has issued.

There has been a federal stay of

execution on this case since January 12,

1989, which remains in effect.

On December 3, 1993, Respondents

requested a decision on the case by letter

to the Ninth Circuit Court of Appeals. No

reply to that request was issued.

a ee

— a

On January 31, 1994, the State

filed a “Motion for Decision Within 60

Days.” On February 7, 1994, the motion

was denied. The court observed that the

motion involved "a first petition” and was

inconsistent with its duty to give a full

and fair consideration to all of the

issues presented in the case. Exhibit A.

Over five years after the issuance of a

federal stay of execution, no opinion has

been filed in this case

JURISDICTION

This Court has jurisdiction

under sections 1651, subdivision (a) and

2254 of Title 28 of the United States Code

and Rule 20.1 of the United States Supreme

Court Rules.

The district court had

jurisdiction in Wade’s petition for writ

of habeas corpus under sections 2241,

subdivision (a) and 2254 of Title 28 of

the United States Code.

oes @

The Court of Appeals has

jurisdiction to review the denial of the

petition for writ of habeas corpus under

section 1291 of Title 28 of the United

States Code.

STATEMENT OF THE CASE

A. Procedural Background

1. Direct Appeal

A jury convicted Wade of the

1981 murder of his 10-year-old step-

daughter, Joyce. After accusing the child

of smelling and not washing herself

properly, Wade beat her with his fists, a

wooden board from a broken couch and

kicked and stomped her. Wade placed Joyce

inside a military duffle bag which he

hoisted into a crawlspace in a ceiling

above the bedroom, threw her against a

wall with such force that her head

penetrated the wall and at one point tried

to hang her to a wall by a dog leash. The

child died from wounds suffered during the

» J. «

22-hour ordeal. People v. Wade, 44 Cal.

3d 366, 244 Cal. Rptr. 905, 750 P.2d 794

(1988).

Ze Federal Habeas Corpus,

District Court Evidentiary

Hearings and Appeal _

Wade filed a federal habeas

corpus petition on January 12, 1989, then

returned to state court to exhaust his

remedies by filing a petition on March 27,

1989. That petition was denied on June

21, 1989, and Wade amended his federal

petition on August 8, 1989.

On May 22, 1990, a one-week

evidentiary hearing commenced in the

district court before the Honorable Manuel

Real, on issues of jury misconduct and

ineffective assistance of counsel. The

writ of habeas corpus was denied on

September 14, 1990. Wade v. Vasquez, 752

F. Supp. 9 (C.D. Cal. 1990). The Ninth

Circuit remanded the case on April 21,

1992, for the district court to receive

ce ee ee ee

‘Ndtointce bes

any additional evidence it deemed

appropriate on Wade’s claim that his

public defender had a conflict of

interest. After an evidentiary hearing on

August 31, and September 1, 1992, the

district court decided on December 9,

1992, that there was no conflict of

interest. An appeal was taken from that

decision. The issues raised by the denial

of the writ of habeas corpus and findings

on the conflict claim were fully briefed.

On June 16, 1993, the appeals

from the denial of the writ and conflict

of interest ruling were argued and

submitted for decision.

On February 7, 1994, the State's

motion for a decision was denied. This

petition follows that denial.

ee eT ee Eee

THE NINTH CIRCUIT'S UNREASONABLE

DELAY IN DECIDING WADE’S APPEAL

FROM THE DENIAL OF HABEAS CORPUS

IN THIS CAPITAL CASE VIOLATES

THE DUE PROCESS RIGHTS OF

CALIFORNIA AND THE STATE'S

ABILITY TO TIMELY ENFORCE ITS

LAWS

While there are no deadlines for

decisions by the federal Courts of Appeal,

the delay in this case is per se

unreasonable under Blodgett. The state is

deprived of its sovereign power to enforce

its criminal laws by unreasonable delay in

deciding capital cases.

A federal stay of execution

issued on this case over five years ago

and remains in effect. Wade's petition

for habeas corpus was denied by the

district court and a certificate of

probable cause issued over four years ago.

Following remand by the Ninth

Circuit Court of Appeals almost two years

ago, the district court held a second

evidentiary hearing regarding Wade's claim

remaatinen en atria ana gaa ee eee ee TOT

~ Si nein

- 10. -

that his public defender had a conflict of

interest. The district court issued an

opinion finding no conflict and a

certificate of probable cause was issued

on March 4, 1992.

The case has been pending in the

Ninth Circuit Court of Appeals since 1990,

at one stage or another. Oral argument

was presented to the Court of Appeals on

June 16, 1993, and the case was submitted

for decision.

The state cannot agree with the

Ninth Circuit’s February 7, 1994,

conclusion that a decision in this case

within 60 days is inconsistent with the

court’s obligations under this Court's

decision in Blodgett.

The State requests a writ of

mandate based on the inordinate and

inexplicable delay in the Ninth Circuit

deciding Wade’s appeal from the denial of

collateral relief.

ah atin RC ti ors

Benn Ce nen OT he ee

- ll. -

Under the All Writs Act, 28

U.S.C. § 1651(a), the federal Courts of

Appeal may issue a writ of mandate when it

is “necessary or appropriate in aid of

their respective jurisdictions.” Will v.

Calvert Fire Insurance Company, 437 U.S.

655, 661 (1978) (plurality opinion); Roche

v. Evaporated Milk Association, 319 U.S.

21 (1943). This Court has long recognized

this authority, and stated when it should

be used.

Applications for a mandamus

to a subordinate court are

warranted by the principles and

usage of law in cases where the

subordinate court, having

jurisdiction of a case, refuses

to hear and decide the

controversy, or where such a

court, having heard the cause,

refuses to render judgment or

enter a decree of in the case.

Ex Parte Newman, 81 U.S. (14 Wall.) 152,

165 (1872), emphasis added. Repeated

decisions of this Court have established

the rule that mandamus “will lie in a

proper case to direct a subordinate

baad 12. naa

Federal Court to decide a pending cause.”

insurance Company v. Comstock, 83 U.S. (16

Wall.) 258, 270 (1872); Will _v. Calvert

Fire Ins. Co., 437 U.S. at 662; Thermtron

Prods., Inc. v. Hermansdorfer, 423 U.S.

336, 352 (1976).

For mandamus to issue, there

must be a clear right to the relief

sought, a plainly defined and peremptory

duty on the part of the respondent to do

the action in question, and no other

adequate remedy is available. The

petitioner must also show that the right

to the writ is “clear and indisputable.”

a Vv. t t. r

the S. Dist. of Iowa, 490 U.S. 296 (1989);

Allied Chemical Corp v. Diaflon Inc., 449

U.S. 33, 35-36 (1980). California has

demonstrated each criteria established by

this Court and the Ninth Circuit’s failure

to act in the appeal pending before it

warrants relief in this Court. LaBuy v.

ee

Fatah LF. Sik casita AC dt Sig!

et NAS tN ENT ANS Ca at a cat EE i ES bee OTS iss

be BES me te

ae ee eens

- 13. -

Howes Leather Company, 352 U.S. 249, 259-

260 (1957) (writs on mandamus may be used

for “supervisory control of the District

Courts by the Court of Appeals.”)

i. The Ninth Circuit Court of

Appeals has a duty to act in a

prompt fashion in capital habeas

corpus cases

There is general agreement among

the Circuit Courts that “[h]abeas corpus

is a speedy remedy entitled to

preferential consideration.” McClellan v.

Young, 421 F.2d 690, 691 (6th Cir. 1970);

Johnson v. Rogers, 917 F.2d 1283, 1284

(10th Cir. 1990); Van Buskirk v.

Wilkinson, 216 F.2d 735, 737-738 (9th Cir.

1954). Recently, this Court stated that

it would not tolerate unreasonable delay

in a capital habeas corpus case, and held

that such delay could be the basis of a

mandamus petition.

In a capital case the grant

of a stay of execution directed

to a State by a federal court

imposes on that court the

concomitant duty to take all

- 14. -

steps necessary to ensure a

’

consistent with its duty to give

full and fair consideration to

all of the issues presented in

the case.

in re Blodgett, 502 U.S.___, 116 L. Ed.

2d 669, 112 S. Ct. 674, 676 (1992)

emphasis added.

By not promptly resolving this

matter before it, the Ninth Circuit has

failed in the instant case to follow the

dictates in In re Blodgett.

It has failed in its “duty to

take all steps necessary to ensure a

prompt resolution of the matter.”

Blodgett, 112 S. Ct. at 676, emphasis

added.

2. Mandamus is the only available

means to ensure the prompt

resolution of the instant case

A petition for writ of mandamus

to a higher court is the appropriate

action when an inferior court refuses to

act on a case pending before it.

ats

- 15. +

There case be no doubt that,

where a district court

persistently and without reason

refuses to adjudicate a case

properly before it, the court of

appeals may issue the writ [of

mandamus] “in order that [it]

may exercise the jurisdiction of

review given by law.”

Will v. Calvert Fire Ins., 437 U.S. at

661-662 (quoting Insurance Company v.

Comstock, 83 U.S. (16 Wall.) at 270; Ex

Parte Newman 81 U.S. (14 Wall.) at 165.

The State of California has no other

available remedy to ensure a prompt

resolution of these cases except a

mandamus petition.

The prejudice suffered by the

State through the dilatory actions of the

Ninth Circuit Court of Appeals can be

addressed through a mandamus petition.

This Court has recognized the prejudice

suffered by a state when a federal court

refuses to act promptly on a habeas corpus

petition.

None of the reasons offered

in the response dispels our

- 16. -

concern that the State of

Washington had sustained severe

prejudice by the two-and-a-half

year stay of execution. The

stay has prevented Washington

from exercising its sovereign

power to enforce the criminal

law, an interest we found of

great weight in (McCleskey v.

Zant) when discussing the

importance of finality in the

context of federal habeas corpus

proceedings

in re Blodgett, 112 S. Ct. at 676

(citation omitted, emphasis added). As

with the State of Washington in Blodgett,

California is suffering a severe

diminution of its sovereign power.

Our federal system

recognizes the independent power

of a State to articulate

societal norms through criminal

law; but the power of a state to

pass laws means little if the

state cannot enforce them

McCleskey v. Zant, 499 U.S. , 113 L.

Ed. 2d 517, 543, 111 S. Ct. 1454, 1469,

(1991), emphasis added. The diminution of

sovereignty is even greater for the State

of California in this case because the

federal courts have prevented the state

- 17. -

from enforcing its criminal laws against

Wade through a habeas, appeal, remand and

more habeas proceedings.

The State seeks a prompt

decision of this matter.

A procedural system which

permits an endless repetition of

inquiry into facts and law in a

vain search for ultimate

certitude implies a lack of

confidence about the

possibilities of justice that

cannot be but war with the

underlying substantive commands.

- » There comes a point where

a procedural system which leaves

matters perpetually open no

longer reflects humane concern

but merely anxiety and a desire

for immobility.

McCleskey v. Zant, 113 L. Ed. 2d at 543,

111 S. Ct. at 1469 (quoting Bator,

Finality in Criminal Law and Federal

Habeas Corpus for State Prisoners, 76 Har.

L. Rev. at 452-453 (1963)). A court

immobilized in its search for justice

provides none. The Ninth Circuit Court of

Appeals’ duty is not to achieve absolute

certainty on an issue before it, but

- 18. -

simply, after due consideration to decide

it.

With whatever doubts, with

whatever difficulties, a case

may be attended, we must decide

it, if it be brought before us.

the exercise of jurisdiction

which is given, than to usurp

that which is not given.

Cohens v. Virginia, 19 U.S. (6 Wheat.)

264, 404 (1821), emphasis added. Ever-

delayed justice is no justice at all.

California continues to suffer

prejudice based on the Ninth Circuit Court

of Appeals’ failure to act. Therefore,

the state’s right to a writ is "clear and

indisputable.” Mallard, 109 S. Ct. at

1822.4 At a minimum, the Ninth Circuit

1. The Ninth Circuit Court of

Appeals has not officially responded

concerning why it is taking so long to

process this capital habeas corpus

appeal. Any excuse based on current

case load is unacceptable, and has been

repeatedly rejected as a matter of law.

, 421 F.2d at 691

(excessive volume of pending habeas

petitions insufficient ground to justify

delay in deciding them); see also Jones

v. Shell, 572 F.2d 1278, 1280 (8th Cir.

- 19. -

Court of Appeals is continuing to violate

the duty recognized by this Court in

Blodgett.

3. California requests that this

Court exercise its supervisorial

authority and establish a 120-

day time limit for ruling on

appeals from denial of habeas

corpus on capital cases

Although the time taken to issue

a decision is generally within a court’s

discretion, a party may obtain a writ of

mandamus when it shows that the court has

abused its discretion. Chandler v.

Judicial Council of the Tenth Circuit, 398

U.S. 74, 84-85 (1970); La Buy v. Howes

Leather Co., 352 U.S. at 257. In

Blodgett, this Court stated that the

federal courts had a duty in capital cases

to “take all steps necessary to ensure a

prompt resolution of the matter.” 116 L.

1978) (busy court docket cannot justify

14-month delay in processing claim from

date of remand). Any other result would

render the holding of In re Blodgett a

nullity.

- 20. -

Ed. 2d at 676, 112 S. Ct. at 676, emphasis

added. Clearly, the Ninth Circuit Court

of Appeals has failed to follow the

Blodgett mandate. Moreover, no procedures

or rules are in place to ensure compliance

with Blodgett by the Ninth Circuit Court

of Appeals. To redress this lack of

guidance, respondent requests this Court

order the Ninth Circuit Court of Appeal to

rule within specified times on appeals in

all pending capital cases once the

briefing is complete or oral argument held

before the court.» The failure to decide

2. A period of 120 days from the

time the reply brief is due may be a

reasonable guideline for decision. The

local rules of the United States

District Court for the Southern District

of California contemplate a 120 day

temporary stay “to allow newly appointed

counsel to prepare and file the

petition.” West, Cal. Rules of Court,

Federal, p. 675, LR 9.3b8c, habeas

corpus and motions under § 2255.

American Bar Association

recommendations suggest a one year

statute of limitations (beginning “upon

completion of the state direct review

process”) for filing all post-conviction

applications in capital work. It points

- 21. -

a case within that time constraint would

constitute a prima facie showing that the

court has not complied with the Blodgett

mandate, resulting in the issuance of an

order to show cause. This option would

establish guidelines to be followed in

every case, obviating the need to

relitigate the issue in every pending

capital case and continuously in each

individual case. Long delays in decision

of capital cases are recurring in the

Ninth Circuit. See, Jeffers v. Ricketts,

832 F.2d 476 (9th Cir. 1987), remanded

Lewis v. Jeffers, 497 U.S. 764 (1990);

Jeffers v. Lewis, 5 F.3d 1199 (9th Cir.

1992); Hamilton v. Vasquez, F.2d

94 DAR 1490 (9th Cir. 2/3/94).

The Blodgett mandate is clear,

federal courts must establish procedures

out this Court resolves Petitions for

Certiorari in 90 days if filed during

the regular term and 120 days if filed

during the summer. 40 Am. Univ. Law

Rev. 1, Recommendation 13 (1990).

ee

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.

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_ 22. =

and practices to ensure “prompt”

resolution of habeas corpus petitions in

capital cases. The Ninth Circuit Court of

Appeals has failed to do so. Setting time

limits for ruling on appeals allows some

flexibility, while providing assurances to

the states that the current practice of

allowing capital cases to languish in the

Ninth Circuit Court of Appeals for years

before ruling will not be condoned or

permitted. ae

This Court has long recognized

the overriding policy of preventing

federal interference with the state's

fundamental interest in the administration

of its own criminal justice system.

v. a * eae ee

Ed. 2d 640, 111 S. Ct. 2546 (1991);

McCleskey v. Zant, 11 S. Ct. 1454; Teaque

v. Lane, 489 U.S. 288, 309 (1989); Francis

v. Henderson, 425 U.S. 536, 539 (1976).

= 23. >

California believes that

establishing these time limits for the

Ninth Circuit Court of Appeals to rule on

pending capital habeas corpus appeals is

not only warranted, but absolutely

essential for the orderly administration

of justice.

- 24. -

For all of the above stated

reasons, the State of California

respectfully requests that the Court grant

a Writ of Mandate and order the Ninth

Circuit Court of Appeals to render a

decision on the appeal from the denial of

Wade's petition for writ of habeas corpus

within 120 days of the issuance of the

order of this Court

DATED this 17th day of February,

1994.

Respectfully submitted,

DANIEL E. LUNGREN, Attorney General

of the State of California

GEORGE WILLIAMSON, Chief Assistant

Attorney General

GARY W. SCHONS, Senior Assistant

Attorney General

HOLLY D. WILKENS,

Supervising Deputy Attorney General

Attorneys for Petitioner

= 25.

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- 26. -

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MELVIN MEFFREY WADE, No. 90-56332

-C. No.

Petitioner-Appellant, D

CV-89-0173-MLR

Vv.

2)

)

)

)

)

DANIEL VASQUEZ, ) ORDER

Warden of San )

Quentin; )

ATTORNEY GENERAL )

OF CALIFORNIA, )

)

)

Respondents-Appellees.

Before: CANBY, REINHART, and TROTT,

Circuit Judges

The motion of the Attorney General

for a decision within 60 days is denied.

The motion in this case, which involves a

first petition, is inconsistent with the

duty of a reviewing court in a death

penalty case “to give full and fair

consideration to all of the issues

presented in the case.” n re tt,

112 S.Ct. 674, 676 (1992).

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