Amicus Curiae Brief — Lewis, Director, Arizona Department of Corrections v. United States District Court for the District of Arizona (Correll, Real Parties in Interest)

~ MOTION FILED

OCT -/ 1933

No. 93-406

IN THE

Supreme Court of the United States

OCTOBER TERM, 1993

SAMUEL LEWIS, Director,

Arizona Department of Corrections, et al.,

Petitioners,

vs.

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF ARIZONA,

Respondent,

MICHAEL EMERSON CORRELL,

JOSE ROBERTO VILLAFUERTE, JIMMY ALLAN ARNETT,

Real Parties in Interest.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

MOTION FOR LEAVE TO FILE AND

BRIEF AMICUS CURIAE OF THE CRIMINAL

JUSTICE LEGAL FOUNDATION IN SUPPORT OF

THE PETITION FOR WRIT OF CERTIORARI

KENT S. SCHEIDEGGER

Criminal Justice Legal Fdn.

2131 L Street (95816)

Post Office Box 1199

Sacramento, CA 95812

Telephone: (916) 446-0345

Attorney for Amicus Curiae

Criminal Justice Legal Foundation

QUESTION PRESENTED

Does the law provide a remedy for the failure of a

District Court in a habeas corpus case to fulfill its duty

under /n re Blodgett “to take all steps necessary to ensure

a prompt iesolution of the matter. . .”?

(1)

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1993

SAMUEL LEWIS, Director,

Arizona Department of Corrections, et al.,

Petitioners,

vs.

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF ARIZONA,

Respondent,

MICHAEL EMERSON CORRELL,

JOSE ROBERTO VILLAFUERTE, JIMMY ALLAN ARNETT,

Real Parties in Interest.

MOTION OF AMICUS CURIAE FOR LEAVE

TO FILE BRIEF IN SUPPORT OF THE PETITION

FOR WRIT OF CERTIORARI

Pursuant to Supreme Court Rule 37.2, the Criminal

Justice Legal Foundation respectfully moves for leave to

file the accompanying brief amicus curiae in support of

the petition in the above captioned case. Counsel for

petitioner has consented, but respondent court and

counsel for the real parties in interest have not consented.

In the accompanying brief, amicus argues that the

state has been wronged by the inexcusable delay in this

case and that mandamus is the appropriate relief.

Further, review of this case on certiorari is necessary to

eliminate the gross disparities in justice between districts

iV

which process their habeas cases and those which obstruct

them.

INTEREST OF AMICUS CURIAE

The Criminal Justice Legal Foundation (CJLF) is a

nonprofit California corporation organized to participate

in litigation relating to the criminal justice system as it

affects the public interest. CJLF seeks to bring the due

process protection of the accused into balance with the

rights of the victim and of society to rapid, efficient, and

reliable determination of guilt and swift execution of

punishment.

The federal district courts in Arizona have needlessly

delayed enforcement of the state’s death penalty, reducing

its deterrent effect. This delay is contrary to the rights of

victims and society which CJLF was formed to advance.

For the foregoing reason, amicus requests leave to file

its brief.

October, 1993

Respectfully submitted,

KENT S. SCHEIDEGGER

Attorney for Amicus Curiae

Criminal Justice Legal Foundation

TABLE OF CONTENTS

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SUGMNOTG CL TAC ORE CREE oo 5 ccc ccdegecdensetens ]

OID: nn 6:6 09 650 004854 0s eae eee 2

Summary Of argument ...... 1... cc ccccccerccceues 3

OE ee eee ee Te 3

I

Law and justice require prompt disposition of capital

OE OREEE Bog. 6. oda tde Oo eek eee 3

Fi. FOS GOOG 6 oo i. Ck ieee tenet 3

B. Habeas corpus: secondary and limited ...... 5

C. Habeas statutes andrules ................. 8

aD. TRG GIG. 3. 5s ko es te dade wee es 9

II

The present case is a textbook example of an appropriate

ClO DAE SOREN. fo ooo op ke ho le eee 1]

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Certiorari is necessary to prevent gross disparities in the

eg Tope ores ER PE 13

OTE eT Ere Perey or noe ee 15

(v)

v1

TABLE OF AUTHORITIES

Cases

Adams v. Peterson, 968 F. 2d 835 (CA9 1992)........ 7

Anderson v. Liberty Lobby, Inc., 477 U. S. 242,

91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986) ........... 7

Arave v. Creech, 123 L. Ed. 2d 188,

Cea Gh BOL OOREE 66 N be eee aa eee 4

Atlantic Coast Line R. Co. v. Locomotive Engineers,

398 U.S. 281, 26 L. Ed. 2d 234,

me oh TOP CEPT) « vixva neces ees deere 5

Barefoot v. Estelle, 463 U. S. 880, 77 L. Ed. 2d 1090,

ere es Shy DOOR LEDOE) 6c oceeescessuveseewes nes 5

Brecht v. Abrahamson, 123 L. Ed. 2d 353,

SE Ge ATU CLOEED she boss oxccesaeeeerrern 5

Butler v. McKellar, 494 U. S. 407, 108 L. Ed. 2d 347,

Sir Sot ENE LEONG): inka s 0 04 0 Rea ee wenenae es 7

Connor v. Coleman, 441 U. S. 792, 60 L. Ed. 2d 646,

as GA, Ee CIP TOD 5s 0 be ee eee ee ee ene 2

Estelle v. McGuire, 116 L. Ed. 2d 385,

ey Boe y-7. ) ) errr ney 6

Ex parte Bradstreet, 7 Pet. (32 U. S.) 634,

ic Me OL UOOEE odd 5 5 5 05 car eee Cone eee 1]

Ex parte Crane, 5 Pet. (30 U. S.) 190,

iy Ge PE CEUOE) vscncbvccrecunee eee ereeee

Gregg v. Georgia, 428 U. S. 153, 49 L. Ed. 2d 859,

a ts a LUPO) 605 cn cee eeaeoeeeeenae 14

Illinois v. Gates, 462 U. S. 213, 76 L. Ed. 2d 527,

ea Gs SOE FT LIOOEE. one taka eee eee 13

In re Blodgett, 116 L. Ed. 2d 669,

Pe ak, OPO CENEED Ss cb ew ccercncc eee 5

eo

Vii

Johnson v. Rogers, 917 F. 2d 1283 (CA10 1990) ..... 13

Keeney v. Tamayo-Reyes, 118 L. Ed. 2d 318,

Bee ak Gs RTE CEE. CN von'kp cahdeapesckexeeues 6

Life and Fire Ins. Co. v. Heirs of Wilson, 8 Pet.

(33 U. S.) 291, 8 L. Ed. 949 (1834) .............. 12

Livingston v. Dorgenois, 7 Cranch (11 U. S.) 577,

eT pre ree rr rrr ee 12

Marbury v. Madison, 1 Cranch (5 U. S.) 137,

re reer ys ee errr TTT Tr 2

McClellan v. Carland, 217 U. S. 268, 54 L. Ed. 762,

ee OT ere Per spre oa MF 2

McGautha v. California, 402 U.S. 183, 28 L. Ed. 2d 711,

FE ee Pe CUTED 0 cnc ieueessouccuswecer ous 14

Murray v. Carrier, 477 U. S. 478, 91 L. Ed. 2d 397,

Fe Ge Me CEOEE vance eu cuveacamenieuvens 6

People v. Allen, 42 Cal. 3d 1222, 232 Cal. Rptr. 849,

(io) Me bee | rer ere ee 4

Pulley v. Harris, 465 U. S. 37, 79 L. Ed. 2d 29,

ee Oa ee OE a0 50k Wadeweae eae kes veeee 5

Roche v. Evaporated Milk Assn., 319 U. S. 2],

87 L. Ed. 1185, 63 S. Ct. 938 (1943) ........ ra) ee

Rose v. Lundy, 455 U. S. 509, 71 L. Ed. 2d 379,

Pee We OE i woo coy 65a Sn nee hear enees 6

Snyder v. Massachusetts, 291 U. S. 97, 78 L. Ed. 674,

Pe ee os oa ce en ans ip eesieeek 4

Strickland v. Washington, 466 U. S. 668, 80 L. Ed. 2d 674,

ee Ee EE bird a eecb cuss keeeeiede es 7

Teague v. Lane, 489 U. S. 288, 103 L. Ed. 2d 334,

ct ek ye re errr 7

Vill

Thermtron Products, Inc. v. Hermansdorfer,

423 U. S. 336, 46 L. Ed. 2d 542,

PU EOD bcd cna vus be enpseees une 12, 13

Tison v. Arizona, 481 U.S. 137, 95 L. Ed. 2d 127,

ok es Bo, Se er reer arere 4

Witherspoon v. Illinois, 391 U. S. 510, 20 L. Ed. 2d 776,

ee eke eeueses aka vne steep eee 4

Wright v. West, 120 L. Ed. 2d 225,

oe Be Ls SA eee na mes 7

United States Constitution

eae CE O's ko a io ue oe ee ree ew oe ee 3

oR te re ee errr 14

United States Statutes

Judiciary Act of 1789, § 13, 1 Stat. 81.............. 1]

Be as Wh Gs I 6 oc kc kc ccnecccveneswncen 10

ee ee OE os oan veo 5 vise eae eae ee ees 2

en as Oe oe Ss ine ea er Sen ee sy aeaae 5

a re Prt oa or, so eee a ce 2

ee eee ic @ ae ea eto te waste els 9

a EE a ns ed pete ea ee coe ava herecns 5

Pa a ens ope cece ae eco nes oan ee 2

Arizona Constitution and Statute

Ariz. Const., Art. 6 § 14(4) (Supp. 1992) ..:......... 5

Ariz. Rev. Stat. Ann. § 13-4031 (Supp. 1992) ........ 5

1X

Rules of Court

Federal Rule of Civil Procedure 56(c) .............. 7

Rules Governing Section 2254 Cases in the

United States District Courts ...........-...004- 9

Supreme Court Rule 10.1 .........eceeeevee. 14, 15

Treatises

W. Blackstone, Commentaries ..............-.. 4,11

R. Stern, E. Gressman & S. Shapiro,

Supreme Court Practice (6th ed. 1986)............ 2

C. Wright, A. Miller, E. Cooper & E. Gressman,

Federal Practice and Procedure (1977) .......... 13

Miscellaneous

Advisory Committee’s Note to Habeas Rule 8 ....... 9

The Federalist No. 22 (C. Rossiter ed. 1961)........ 15

National Conference of State Trial Judges, Standards

Relating to Court Delay Reduction (1985) ....... 10

hagna Carta, Ast. GO CIZIS) onic ccs ce cerseeeseves 3

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1993

SAMUEL LEwis, Director,

Arizona Department of Corrections, et al.,

Petitioners,

vs.

UNITED STATES DISTRIC?r COURT FOR THE

DISTRICT OF ARIZONA,

Respondent,

MICHAEL EMERSON CORRELL,

JOSE ROBERTO VILLAFUERTE, JIMMY ALLAN ARNETT,

Real Parties in Interest.

BRIEF AMICUS CURIAE OF THE

CRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF THE PETITION

FOR WRIT OF CERTIORARI

SUMMARY OF FACTS AND CASE

Real parties in interest Correll, Villafuerte, and Arnett

have all been convicted of murder and sentenced to death

in the state courts of Arizona. All three sentences have

been affirmed by the Supreme Court of Arizona. All

three have filed habeas corpus petitions with respondent

U. S. District Court for the District of Arizona. In all

three cases, a motion for summary judgment has been

pending for over a year.

The Arizona Attorney General petitioned the Court of

Appeals for the Ninth Circuit for a writ of mandamus to

compel action. That court denied the writ without any

explanation.

On September 15, 1993, after the present certiorari

petition was filed, the District Court set a date for an

evidentiary hearing in Arnett but did not rule on the

pending summary judgment motion. Also, on September

29, 1993, the District Court granted the state’s motion for

summary judgment in Villafuerte. Writ relief is no longer

needed as to Villafuerte, see Connor v. Coleman, 441 VU. S.

792 (1979), and there is a question as to mootness in

Arnett. This brief will not address that question, as we

understand it will be covered in other briefs to be submit-

ted. In any event, there certainly remains a live contro-

versy as to Correll.

JURISDICTION

The Court of Appeals had jurisdiction to issue the writ

of mandamus under the All Writs Act, 28 U.S.C.

§ 1651(a). Issuance of the writ to an inferior court, as

opposed to an executive officer, is an exercise of appellate

jurisdiction. Ex parte Crane, 5 Pet. (30 U.S.) 190, 193

(1831); cf. Marbury v. Madison, 1 Cranch (5 U. S.) 137,

175-176 (1803).

The Court of Appeals has jurisdiction to issue writs in

cases within its appellate jurisdiction, even though no

appeal has yet been perfected. Roche v. Evaporated Milk

Assn., 319 U.S. 21, 25 (1943). This case is within that

appellate jurisdiction. 28 U.S. C. § 2253.

The writ of certiorari is the appropriate method for

this Court to review denial of a writ of mandamus, either

under 28 U. S. C. § 1254(1), or under the All Writs Act,

McClellan v. Carland, 217 U. S. 268, 277-278 (1910). R.

Stern, E. Gressman & S. Shapiro, Supreme Court Practice

499 (6th ed. 1986).

SUMMARY OF ARGUMENT

The people of Arizona are entitled to a prompt

disposition of these cases, both by law and as a matter of

fundamental justice. Such promptness is feasible if the

habeas court recognizes the limited, secondary nature of

habeas corpus and properly applies the limitations on

habeas relief.

The present case lies within the solid core of the

historical writ of mandamus. The injustice being perpe-

trated here is precisely the kind which has historically

justified issuance of the writ.

Certiorari is needed in this case to correct the dispari-

ties in the quality of justice which now exist between

districts. Some states can enforce their capital punish-

ment statutes while others cannot, based on the attitudes

of the local federal bench rather than any genuine

differences in their legal situations.

ARGUMENT

I. Law and justice require prompt disposition of

capital habeas cases.

A. Justice Delayed.

“To none will we sell, to none deny or delay, right or

justice.” Magna Carta, Art. 40 (1215) (emphasis added).

Delay of justice is a form of oppression, and it has been

since ancient times. For this reason, a promise of swift

justice was included in the cornerstone of Anglo-Ameri-

can liberty.

Similarly, a right to a speedy trial was included in the

American Bill of Rights. U. S. Const., Amdt. 6. At the

time of its enactment, this provision applied only to the

federal government, and to this day it only benefits the

defendant. At the time of enactment, there was no

reason to apprehend that the federal courts would

obstruct justice to the detriment of the people. Only

much later did the pendulum swing so far that it was even

necessary to be concerned about fairness to the people.

See Snyder v. Massachusetts, 291 U.S. 97, 122 (1934)

(justice due also the accuser); Witherspoon v. Illinois, 391

U.S. 510, 535 (1968) (Black, J., dissenting) (people

entitled to impartial jury).

While the Sixth Amendment speedy trial right does

not apply directly to the prosecution, the principle of right

and justice which underlies it applies fully. It is funda-

mentally wrong to drag out justice for decades, and that

wrong is no less wrong when it is inflicted upon the

original victim of the crime, the victim’s family, or society

as a whole, rather than on the defendant.

Ideal justice would provide for the sentence to be

carried out immediately upon the entry of the verdict, and

at common law there was only a short interval. 4 W.

Blackstone, Commentaries 397 (1769). In modern times,

however, recognition of the imperfections of the trial

process has resulted in the creation of a multilayered

system of review, so that execution of sentence is delayed

for years after the completion of trial.

The fact that some delay is required, however, must

not blind us to the injustice of delay. Each day that a

valid sentence is delayed is a fresh injury. Each day, the

family of the victim must live with the uncertainty of

whether justice will ever be done. Each day raises the

possibility of new crimes by the criminal, either within

prison, see Arave v. Creech, 123 L. Ed. 2d 188, 195, 113

S. Ct. 1534, 1538 (1993), after escape, see Tison v.

Arizona, 481 U. S. 137, 139-141 (1987), or by arrangement

with persons on the outside, see People v. Allen, 42

Cal. 3d 1222, 1236-1244, 729 P. 2d 115, 120-125 (1986).

Each day is an incremental loss in the deterrent effect.

When a federal court directly interferes with the

enforcement of a state judgment, it takes a grave step.

For this reason, Congress passed the Anti-Injunction Act,

flatly forbidding such interference, subject only to a few,

narrow exceptions. Allantic Coast Line R. Co. v. Locomo-

tive Engineers, 398 U. S. 281, 286-287 (1970).

Habeas corpus is one of the exceptions. 28 U. S. C.

§ 2251. This does not mean, however, that the stay of

state proceedings is a matter to be taken lightly. Instead,

as this Court has repeatedly recognized, the stay creates

an obligation on the part of the federal court to proceed

promptly. Jn re Blodgett, 116 L. Ed. 2d 669, 674-675, 112

S. Ct. 674, 676 (1992).

Justice delayed is justice denied. The District Court

has an obligation to the people of Arizona to minimize

the injustice.

B. Habeas Corpus: Secondary and Limited.

The trial of a capital case is a grave matter, requiring

the highest degree of care. But the federal district court

is not trying these cases. That jurisdiction is vested in the

superior courts of Arizona, Ariz. Const., Art. 6 § 14(4)

(Supp. 1992), and the trials were completed years ago.

Review on appeal of a capital case is an equally grave

matter, and appellate review is an essential part of a

constitutional system of capital punishment. See Puiley v.

Harris, 465 U. S. 37, 49 (1984). Again, however, that

jurisdiction is not vested in the federal district court. It

is vested in the Supreme Court of Arizona, Ariz. Rev.

Stat. Ann. § 13-4031 (Supp. 1992), subject to this Court’s

review on federal questions, 28 U. S. C. § 1257(a).

“The role of federal habeas proceedings, while impor-

tant in assuring that constitutional rights are observed, is

secondary and limited.” Barefoot v. Estelle, 463 U. S. 880,

887 (1983); accord, Brecht v. Abrahamson, 123 L. Ed. 2d

353, 370, 113 S. Ct. 1710, 1719 (1993). Hence, this Court

has endeavored to “confin[e] collateral relief to cases that

involve fundamental defects or omissions inconsistent with

the rudimentary demands of fair procedure.” Brecht, 123

L. Ed. 2d, at 375, 113 S. Ct., at 1723 (Stevens, J., concur-

ring) (emphasis added). Because of this secondary,

limited role, there are a number of limitations on habeas

corpus which, when properly applied, serve to whittle down

the issues which actually require decision in the district

court to a scope considerably smaller than those which

need to be considered by the state courts.'

First, questions of state law are not proper subjects of

federal habeas review at all. Estelle v. McGuire, 116

L. Ed. 2d 385, 396, 112 S. Ct. 475, 480 (1991). Second,

the presence of a single claim which has not been present-

ed to the state courts and which is not barred there

requires dismissal of the entire petition. Rose v. Lundy,

455 U. S. 509, 522 (1982). If the claim is barred, it may

not be considered except in the rare cases where an

“objective factor external to the defense” prevented its

timely presentation, Murray v. Carrier, 477 U. S. 478, 488

(1986), or the extremely rare cases where the defendant

is actually innocent, id., at 496.

Habeas review is thus limited, for the most part, to

federal constitutional claims already presented to and

passed on by the state courts. Even within this restricted

scope, the issues to be decided are confined on both ends

by the limited nature of habeas review.

On questions of fact, the law requires deference to the

state court findings, absent an applicable exception. The

petitioner's negligence in developing his case is not one of

the exceptions. As with procedural default, an objective,

external factor is generally required. Keeney v. Tamayo-

Reyes, 118 L. Ed. 2d 318, 330, n. 5, 112 S. Ct. 1715, 1720

(1992).

1. We emphasize “properly” because evasion of these limits results in the

needless multiplication of issues. For example, if the procedural default

rule is properly applied, the vast majority of claims not made on appeal

need not be considered on habeas. If the rule is evaded, however, the

habeas court must both attempt to justify the evasion and rule on the

merits of the claim. >

Much more importantly for the present case, the rule

of Teague v. Lane, 489 U. S. 288 (1989) severely limits the

issues of law to be decided. In each of the three underly-

ing cases, the long-delayed ruling is on a motion for

summary judgment. See Pet. Cert. 6, 7, 8. Such a motion

necessarily presents questions of law based upon facts not

genuinely in dispute. See Federal Rule of Civil Procedure

56(c); Anderson v. Liberty Lobby, Inc., 477 U. S. 242, 258

(1986).

The Teague question is addressed as a threshold issue.

Teague, supra, 489 U. S., at 316. If the question is one of

“pure law,” as opposed to a mixed question of law and

fact, the district court’s task under Teague is not to

resolve the difficult and subtle nuances of constitutional

doctrine, but instead to ask whether reasonable minds

could differ, Butler v. McKellar, 494 U. S. 407, 415 (1990),

a much more straightforward question. If the merits of

the question are difficult, it is “susceptible to debate

among reasonable minds,” ibid., and the rule petitioner

seeks would be a “new rule.”

The principal questions of law in habeas corpus, then,

are in the mixed questions of law and fact. Because there

was no majority opinion in Wright v. West, 120 L. Ed. 2d

225, 112 S. Ct. 2482 (1992), it would appear to be the law

for the time being that the district court must review the

“mixed questions” de novo. See, e.g., Strickland v. Wash-

ington, 466 U. S. 668, 698 (1984).

These questions may be subtle and difficult, and

amicus does not seek to minimize the importance of the

district court’s decision. The issue here is how much time

is required to decide these questions, and for this purpose

it is important to bear in mind that these issues will be

redecided de novo on appeal. Adams v. Peterson, 968

F. 2d 835, 843 (CA9 1992) (en banc). Furthermore, a

district court judge does not need to circulate drafts and

put together a majority, as appellate court judges do. The

judge need only explain his or her own reasoning and

decide the issues. The judge should therefore be able to

decide more quickly than an appellate court.

C. Habeas Statutes and Rules.

The statutes and rules governing habeas corpus shed

some light on the amount of time which should be

required for a decision:

“A court, justice or judge entertaining an application

for a writ of habeas corpus shall forthwith award the

writ or issue an order directing the respondent to

show cause why the writ should not be granted, unless

it appears from the application that the applicant or

person detained is not entitled thereto.

“The writ, or order to show cause shall be directed to

the person having custody of the person detained. It

shall be returned within three days unless for good

cause additional time, not exceeding twenty days, is

allowed.

“The person to whom the writ or order is directed

shall make a return certifying the true cause of the

detention.

“When the writ or order is returned a day shall be set

for hearing, not more than five days after the return

unless for good cause additional time is allowed.

“Unless the application for the writ and the return

present only issues of law the person to whom the writ

is directed shall be required to produce at the hearing

the body of the person detained.

“The applicant or the person detained may, under

oath, deny any of the facts set forth in the return or

allege any other material facts.

“The return and all suggestions made against it may

be amended, by leave of court, before or after being

filed.

“The court shall summarily hear and determine the

facts, and dispose of the matter as law and justice

require.” 28 U. S. C. § 2243 (emphasis added).

It is evident from this statute that Congress intended

that habeas corpus be a speedy proceeding. Times are

stated in days, not months and certainly not years. These

specific times are no longer practical, given the complexity

of the issues now deemed cognizable on habeas. Yet the

Statute still stands as an unmistakable declaration that

habeas corpus should be a summary procedure.

The specific times stated in section 2243 have now

been superseded by the Rules Governing Section 2254

Cases in the United States District Courts, cited below as

the “Habeas Rules.” Habeas Rule 8(c) requires a hearing

“as promptly as practicable.”

“[SJubdivision (c) provides more flexibility [than

section 2243] to take account of the complexity of the

case, the availability of important materials, the workload

of the attorney general, and the time required by appoint- -

ed counsel to prepare.” Advisory Committee’s Note to

Habeas Rule 8, 28 U. S. C., p. 425 (1988 ed.).

While the Habeas Rules provide some needed flexibili-

ty, they do not purport to alter the basic nature of the

proceeding. The Congressional command to “summari-

ly ... dispose of the matter as law and justice require,”

28 U. S. C. § 2243 (emphasis added), remains in force.

Justice requires that justice not be unnecessarily delayed.

D. Reasonable Time.

The key question remains, what amount of time is

reasonable to dispose of a habeas corpus petition?

Guidelines established for civil disputes are instructive for

establishing some outer limits.

Ordinary civil litigation deals with raw disputes, while

federal habeas corpus warms over material which is

already overcooked by the time it reaches federal court.

earn

10

Hence, habeas corpus cases should be processed from

start to finish in Jess time than original civil cases.

The National Conference of State Trial Judges has

established a standard for the disposition of general civil

matters:

“A. General Civil—90% of all civil cases should be

settled, tried or otherwise concluded within 12 months

of the date of case filing; 98% within 18 months of

such filing; and the remainder within 24 months of

such filing except for individual cases in which the

Court determines exceptional circumstances exist and

for which a continuing review should occur.”

National Conference of State Trial Judges, Standards

Relating to Court Delay Reduction § 2.52, at 11 (1985).

Along the same lines, Congress has set a standard of 18

months from the filing of a raw dispute to the commence-

ment of trial in most civil cases. 28 U.S.C.

§ 473(a)(2)(B).

Death penalty law is complex, to be sure, but so are

antitrust, securities, and RICO. If these cases can be

resolved in a year or two from the filing of a raw dispute,

the secondary, limited, re-review of warmed-over disputes

on habeas corpus can surely go at least as fast.

In the cases underlying the present petition, the

district court has taken longer to rule on summary

judgment motions than it should take to dispose of the

case from start to finish. The District Court took a year

and a half to rule on a summary judgment motion in

Villafuerte. Pet. Cert. 7. Motions have been pending for

a year in Correll, Pet. Cert. 6, and over a year in Arnett,

id., at 8. The latter case, altogether, has been pending on

habeas corpus an entire decade. Id., at 7. That is abso-

lutely inexcusable.

The people of Arizona have a right to reasonably

prompt handling of these cases. That right has been

violated. The only question is whether the law affords a

remedy. It does: the writ of mandamus.

——ooooEOEeEeEeEeEeEeEeEeEeEeEeEeEeeaeeeeee_—_—_—_—— a =

11

Il. The present case is a textbook example of an

appropriate case for mandamus.

For centuries, the writ of mandamus has been the

law’s remedy for “refusal or neglect of justice.” 3 W.

Blackstone, Commentaries 109 (1768).

“A mandamus therefore lies . . . to compel the holding

of a court.... [I]t issues to the judges of any

inferior court, commanding them to do justice accord-

ing to the powers of their office, whenever the same is

delayed. For it is the peculiar business of the court of

king’s bench, to superintend all other inferior tribu-

nals . . . and this, not only by restraining their excess-

es, but also by quickening their negligence, and obviating

their denial of justice.” Id., at 110-111 (emphasis

added).

When Congress first established the courts of the

United States, it expressly authorized this Court “to issue

writs of mandamus, (d) in cases warranted by the princi-

ples and usages of law, to any courts appointed, or

persons holding office, under the authority of the United

States.” Judiciary Act of 1789, § 13, 1 Stat. 81. With no

more precise direction from the legislative branch, this

Court looked for guidance to the common law, and for

guidance on the common law, the Court looked to

Blackstone. Thus, in Ex parte Crane, 5 Pet. (30 U. S.)

190, 192 (1831), Chief Justice Marshall set forth the

function of the writ by quoting the above passage from

Blackstone.

From the beginning, it has been the core function of

the writ of mandamus to compel the lower court to decide

when it has improperly failed to do so. Mandamus is, of

course, not a substitute for appeal, Roche v. Evaporated

Milk Assn., 319 U. S. 21, 26 (1943), but if the lower court

never rules, there will never be an appeal. Thus in Ex

parte Bradstreet, 7 Pet. (32 U. S.) 634, 647-648 (1833), this

Court granted mandamus to a district judge to reinstate

and try a case, because otherwise the plaintiff would have

12

been deprived of her right to bring the case up on appeal.

In Livingston v. Dorgenois, 7 Cranch (11 U. S.) 577, 579-

580 (1813), the district court had “finally stayed” the

action at the request of the government, which was not a

party. The Court issued “mandamus nisi... in the

nature of a procedendo” to compel trial of the case. /d.,

at 589.

Life and Fire Ins. Co. v. Heirs of Wilson, 8 Pet. (33

U. S.) 291 (1834) noted the special need for mandamus

to resolve the predicament of the litigant in a case where

the judge refuses to enter judgment. Mandamus “is the

only adequate mode of relief, where an inferior tribunal

refuses to act upon a subject brought properly before it.”

Id., at 303. The Court issued the writ to compel a judge

to sign a judgment previously rendered. /d., at 304.

There are many cases in which this Court has held

mandamus to be improper, yet these decisions uniformly

acknowledge the core function of mandamus as set forth

in Blackstone and the cases discussed above. Roche v.

Evaporated Milk Assn., 319 U. S. 21 (1943) contains one

of the more extensive discussions of the writ of manda-

mus. Roche notes that where the question will ultimately

be reviewable on appeal, appellate courts will not review

the question by mandamus. /d., at 26. However, Roche

explicitly distinguishes the situation of “a refusal by the

district court to adjudicate issues properly presented to

it,” in which case mandamus is appropriate. /d., at 27.

Thermiron Products, Inc. v. Hermansdorfer, 423 UV. S.

336 (1976) addresses the failure of a district court to

accept a case merely because of the crowded state of its

docket. In that case, the district court remanded a

diversity case to state court solely for that reason. /d., at

340-341. The Thermtron Court reviewed the cases on

mandamus and stated that “these cases would support the

use of mandamus to prevent nullification of the removal

13

statutes by remand orders resting on grounds having no

warrant in the law.” /d., at 353.

In the present case, the district court has effectively

nullified a law vastly more important than the removal

statutes. The prohibition and punishment of murder is far

and away the single most important function of state

government. See Illinois v. Gates, 462 U.S. 213, 237

(1983). The district court has, in effect, made a mockery

of that law, at best because it is too busy, at worst out of

deliberate obstruction. Mandamus is proper to enforce

the prisoner’s right to speedy consideration of a habeas

petition, Johnson v. Rogers, 917 F. 2d 1283 (CA10 1990),

and it is no less proper for the benefit of the people.

In relatively recent history, there has been a controver-

sial expansion of the use of mandamus for “supervisory”

and “advisory” functions. See 16 C. Wright, A. Miller, E.

Cooper & E. Gressman, Federal Practice and Procedure

§ 3934, at 228-242 (1977). The present petition does not

depend on that extension. It falls squarely within the

solid core of the traditional, centuries-old writ. “[I]f a

judge simply delays too long in deciding a pending case,

a writ may issue on the ground that undue delay is

tantamount to failure to exercise jurisdiction.” /d.,

§ 3933, at 223.

III. Certiorari is necessary to prevent gross disparities

in the quality of justice.

In the preceding two parts, amicus has discussed why

the Court of Appeals should have issued a writ of manda-

mus. The more immediate question is why this Court

should grant a writ of certiorari to review that decision.

2. There is a dissent in Jhermiron, but it is based solely on a special statute

for removal causes, not pertinent here. /d., at 353-361 (opinion of

Rehnquist, J.).

14

Supreme Court Rule 10.1 lists some of the reasons

why certiorari may be granted, among them being: “(a)

When a United States court of appeals... has so far

departed from the accepted and usual course of judicial

proceedings, of sanctioned such a departure by a lower

court, as to call for an exercise of this Court’s power of

supervision.” (Emphasis added.)

That statement applies to the present case, and the

departure is reason enough to grant certiorari. Yet the

problem here is deeper and more intense than this

general statement conveys. What is at stake here goes to

the heart of the role of the judiciary in a democratic

society.

It is now settled beyond question (if there ever had

been a bona fide question) that capital punishment does

not violate the Federal Constitution. Gregg v. Georgia,

428 U. S. 153 (1976). The people of Arizona therefore

have the indisputable constitutional right to decide for

themselves the state law question of whether murder will

be punishable by death. See U. S. Const. Amdt. 10. The

people of each of the other states have the same right, to

be exercised through the democratic process.

In reality, though, whether a state or district does or

does not have capital punishment is now determined as

much by the composition of the local federal bench as it

is by the democratic process. If a district court can grant

a stay of execution and then sit on the case forever,

whether intentionally or negligently, capital punishment is

abolished as effectively as if it were repealed by the

legislature. Indeed, it is more completely abolished, for

while legislators can be voted out, federal judges cannot.

See McGautha v. California, 402 U. S. 183, 226 (1971)

(Black, J., concurring).

In the absence of appellate control, this judicial sit-

down strike will result in pockets across the country where

Gregg is effectively overruled by district courts. One state

15

or district will have capital punishment in fact, while the

next will have it in name only.

The law should not vary radically from one district to

the next because of the composition of the district bench.

That is precisely why we have a Supreme Court, to

establish a reasonable uniformity in the law. The Feder-

alist No. 22, p. 150 (C. Rossiter ed. 1961). Usually, that

uniformity is obtained by settling questions of substantive

and procedural law. Occasionally, however, it must be

obtained by “exercise of this Court’s power of supervi-

sion.” Supreme Court Rule 10.1(a).

This is one of those occasions.

CONCLUSION

The petition for writ of certiorari should be granted.

October, 1993

Respectfully submitted,

KENT S. SCHEIDEGGER

Attorney for Amicus Curiae

Criminal Justice Legal Foundation