Opposition Brief — Lewis, Director, Arizona Department of Corrections v. United States District Court for the District of Arizona (Correll, Real Parties in Interest)
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No. 93-406 DEC 13 j9a3
IN THE OFFICE Gr THE CLERK
vel
Supreme Court of the United States
OCTOBER TERM, 1993
SAMUEL LEWIS, DIRECTOR ARIZONA DEPARTMENT
OF CORRECTIONS, GRANT WOODS, ARIZONA
ATTORNEY GENERAL,
Petitioners,
Vv.
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF ARIZONA,
Respondent,
MICHAEL EMERSON CORRELL, JOSE ROBERTO
VILLAFUERTE, JIMMY ALAN ARNETT,
Real Parties in Interest.
On Petition For a Writ of Certiorari
to the United States Court of Appeals for the Ninth Circuit
BRIEF FOR THE RESPONDENT IN OPPOSITION
DONALD B. AYER
(Counsel of Record)
SARAH L. WANNER
STEPHEN J. JORDEN
JONES, DAY, REAVIS & POGUE
Metropolitan Square
1450 G Street, N.W.
Washington, D.C. 20005-2088
(202) 879-4689
Counsel for Respondent
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QUESTION PRESENTED
Whether the court of appeals erred in refusing, on petition for
mandamus, to direct respondent to accelerate its handling of three
capital habeas corpus cases, and to promulgate general time
limitations applicable to all capital habeas corpus petitions pending
within the circuit.
(i)
(iii)
TABLE OF CONTENTS
Page
QUESTION PRESENTED ................... i
TABLE OF AUTHORITIES ..................__. iv
OPINIONS BELOW ....................... l
STATEMENT OF JURISDICTION .............__. 2
STATEMENT OF THE ME atl ee a'g gies ye oa ee 2
I. Correll v. Lewis ...................... 3
2. Villafuertev.Lewis............00022 5
3. Amettv.Lewis...............00022~ 6
REASONS FOR DENYING THE WRIT ............ 8
I. THERE IS NO BASIS FOR AN ORDER OF
A. Mandamus Is An Exceptional Remedy Which Is Only
Available To Limit A Court’s Discretionary Control Of
Its Calendar Where The Court Has Persistently Refused
To Adjudicate A Matter Properly Before It... ... 9
B. Petitioner Has Failed To Show Any Refusal Or
Unreasonable Delay By The District Court In
Exercising Its Jurisdiction To Resolve The Habeas
Corpus Petitions InIssue..............._. 15
I. THIS COURT SHOULD NOT GRANT REVIEW FOR
THE PURPOSE OF PROMULGATING PROSPECTIVE
TIME-LIMITS ON THE HANDLING OF FEDERAL
HABEAS CORPUS CASES:..............___ 20
TE soo 6 os 6 ok renee cicicee.... 26
(iv)
TABLE OF AUTHORITIES
Page
Cases
Adamson v. Ricketts, 865 F.2d 1011 (9th Cir. 1988),
cert. denied, 497 U.S. 1031 (1990) ............. 3, 17
Allied Chemical Corp. v. Daiflon, Inc.,
Uk RR ee 9, 10, 23
Amadeo v. Zant, 486 U.S. 214 (1988) ............. 14
Arizonians for Fair Representation v. Symington,
828 F. Supp. 684 (D. Ariz. 1992), affd
Se eh EE & ed 40 9:4 & 6-4 5.0 © w0-0 00500 23
Arnett v. Ricketts, 665 F. Supp. 1437
ee 2 Re en eee 6
Barefoot v. Estelle, 463 U.S. 880 (1983) ......... 12, 14 |
Barker v. Wingo, 407 U.S. 514 (1972) ........... 21, 25 |
In re Blodgett, 112 S. Ct. 674 (1992)... . 11, 12, 13, 14, 20
Bounds v. Smith, 430 U.S. 817 (1977) ............. 14
Campbell v. Blodgett, 940 F.2d 549 |
SAT aa’ a oa a wee We's.y ws o ea 6 13, 14, 15
Chandler v. Judicial Council of Tenth Circuit, |
IR, A Ske ee en 22 |
Insurance Co. v. Comstock, 83 U.S. (16 Wall.)
el a Pe 15 |
Johnson v. Rogers, 917 F.2d 1283 (10th Cir. 1990)... .. 16 |
Jones v. Shell, 572 F.2d 1278 (8th Cir. 1978) ........ 16 ¢
Kimmelman v. Morrison, 477 U.S. 365 (1986) ........ 13 |
La Buy v. Howes Leather Co., 352 U.S. 249 (1957) .... 15 |
Lewis v. Jeffers, 497 U.S. 764 (1990) ............ a oF |
Los Angeles Brush Mfg. Corp. v. James, |
pe Be ee ee 10 |
McClellan v. Young, 421 F.2d 690 (6th Cir. 1970) ..... 16
McCleskey v. Zant, 111 S. Ct. 1454 (1991) ........ 14, 25
Miner v. Atlass, 363 U.S. 641 (1960) ............. 21
Ortega Rodriguez v. United States,
Seay le SE. a ooo 0 woe v0 64.0 bate debe 24
Roche v. Evaporated Milk Ass’n, 319 U.S. 21 (1943)... .. 9
(v)
TABLE OF AUTHORITIES (Cont'd)
Page
Sawyer v. Whitley, 112 S. Ct. 2514 (1992) .......... 12
Sibbach v. Wilson & Co., 312 U.S. 1 (1941) ......... 22
Thermtron Products, Inc. v. Hermansdorfer,
SS US. See oa ob a eee wa ese ee ene 15
United States v. Taylor, 487 U.S. 326 (1988) ......... 10
Vasquez v. Hillery, 474 U.S. 254 (1986) ........... 14
Walton v. Arizona, 497 U.S. 639 (1990) ............. 3
Will v. Calvert Fire Ins. Co., 437 U.S. 655 (1978) ... 10, 11
Will v. United States, 389 U.S. 90 (1967) ........... 15
Wingo v. Wedding, 418 U.S. 461 (1974) ...... Trae 14
Zant v. Stephens, 462 U.S. 862 (1983) ............- 13
Statutes and Rules
yr PST oe dl re ss ee ee 22
y | Rhee el ee re 2
2 GE 665d 0 Wa ede eee ee 7
y RR eee eee ee ee 2
GSE. Se coos neeopeaweéeesen 11
y bk Fe 0 re rir ete 21
yp Ee TA 0 err rer aera 21
y Pb Rome 0 ER ee ee ee 21
Speedy Trial Act, 18 U.S.C. § 316l etseq .......... 21
PS 8: ere re ee 25
28 U.S.C. § 2254, Rules Governing Section 2254 Cases in
the United States District Courts, R. 8 (1988) ..... 12, 21
Miscellaneous Authorities
Administrative Office of the United States
Courts, Management Statistics for United
ED bk ea bee ke 6 ke 6 ee 10
Administrative Offices of the United States
Courts, Management Statistics for United
Ses Ce ids ea ne eee rhea veo 10, 22
(vi)
TABLE OF AUTHORITIES (Cont’d)
Page
Sarah Beale, Reconsidering Supervisory Power in Criminal
Cases: Constitutional and Statutory Limits on the Authority
of Federal Courts, 84 Colum. L. Rev. 1433 (1984) .... 21
Chief Justice Discusses Changes in Justice System,
The Third Branch, Nov. 1993, at7 ............... 8
Ninth Circuit Judicial Council's Death Penalty Task Force,
Capital Punishment Handbook (1991) ............ 25
16 Charles A. Wright, et al., Federal Practice and
Procedure § 3933 (1977) ..... 2... 2. 2c cc eee 11
IN THE
Supreme Court of the Gnited States
OCTOBER TERM, 1993
No. 93-406
SAMUEL LEWIS, DIRECTOR ARIZONA DEPARTMENT
OF CORRECTIONS, GRANT WOODS, ARIZONA
ATTORNEY GENERAL,
Petitioners,
Wa
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF ARIZONA,
Respondent.
MICHAEL EMERSON CORRELL, JOSE ROBERTO
VILLAFUERTE, JIMMY ALAN ARNETT,
Real Parties in Interest.
On Petition For a Writ of Certiorari
to the United States Court of Appeals
for the Ninth Circuit
BRIEF FOR THE RESPONDENT IN OPPOSITION
OPINIONS BELOW
The order of the court of appeals (Pet. App. B-1) is unreported.
2
STATEMENT OF JURISDICTION
The order of the court of appeals denying the State’s petition
for mandamus was entered on July 21, 1993. This Court’s juris-
diction is invoked under 28 U.S.C. § 1254(1) and 28 U.S.C. §
1651(a) (1988).
STATEMENT OF THE CASE
This case arises from the denial of a petition for a writ of
mandamus filed by the State of Arizona on July 1, 1993 with the
United States Court of Appeals for the Ninth Circuit. The
petition asked the court of appeals to order respondent’ to rule on
five capital habeas corpus cases in accordance with particular time
limitation periods applicable to different aspects of the
proceedings, and to promulgate those time limits as generally
applicable to district courts in the handling of capital habeas
corpus cases.? Respondent did not respond, and on July 21,
1993, the Ninth Circuit denied the petition in a one-sentence
order. The State now petitions for certiorari from the Ninth
Circuit's denial concerning three of the five cases on which relief
was originally sought.’
A brief procedural history of the three cases in issue is set forth
below .*
' Respondent, the United States District Court for the District of
Arizona, will be also be referred to herein as "the court."
> Petitioner urged that district courts be allowed 120 days to decide
dispositive motions, 30 days to decide procedural motions, and 180 days
to hold an evidentiary hearing. Pet. App. A-17, A-26.
> In addition, the State further "prays that the Court exercise its
supervisorial authority and order that the District Court rule on all future
capital cases" within the same specified time limits that it urged on the
court of appeals. (Pet. at 19).
* A more complete chronology of significant events is attached as
Appendix A, where bold text indicates information that was not included
in the State’s petition for certiorari.
Be Correll v. Lewis.
On September 18, 1987, respondent granted Michael Emerson
Correll’s application for a stay of execution. On January 7, 1988,
the court granted Correll’s request for leave to file an amended
petition, which was filed on February 24, 1988. On April 10,
1989, the State filed a motion to dismiss the amended petition,
alleging that Correll failed to exhaust his remedies in State
court.’ Respondent denied that motion on June 5, 1989.
On June 14, 1989, the State moved for a stay of all further
proceedings, in light of the Ninth Circuit’s decision in Adamson
y. Ricketts, 865 F.2d 1011 (9th Cir. 1988), cert. denied, 497
U.S. 1031 (1990), finding Arizona’s death penalty statute
unconstitutional. On July 21, 1989, the court granted the State's
request only with respect to the sentencing phase claims, and
ordered the State to file a response to the guilt phase claims by
August 20, 1989.
On September 7, 1989, the State filed two separate summary
judgment motions addressing ony the guilt phase claims. On
March 14, 1990, respondent granted Correll’s request to amend
the petition by adding two claims, and the State subsequently filed
a third summary judgment motion with respect to these newly-
added claims.
On July 13, 1990, the entire case was transferred to a newly-
appointed district court judge. On September 6, 1991, the State
requested a ruling in the case and cited this Court’s decisions in
Walton v. Arizona, 497 U.S. 639 (1990), and Lewis v. Jeffers,
497 U.S. 764 (1990), which upheld particular applications of the
Arizona death penalty statute and which had been handed down
fourteen months earlier. On September 28, 1991, respondent set
a status conference for October 4, 1991.
S The State claimed that it had not received any notice of two court
orders requiring a timely response to any amended petition. However,
the amended petition had attached to it a proof of service showing that
it had been served on the State.
4
At the October 4, 1991 status conference, the State asked
respondent to allow Correll to amend his petition to raise
additional claims and supplement previous claims, and agreed
with respondent and Correll’s counsel that the most efficient
approach to disposing of the entire case was to vacate the
previously filed motions for summary judgment and proceed by
filing a single motion addressing all issues. Respondent vacated
the prior stay concerning sentencing claims, set a briefing
schedule and scheduled a status conference for May 11, 1992.
Accordingly, on December 6, 1991, Correll filed an amended
petition that raised approximately fifty-three separate claims. On
February 14, 1992, the State filed a motion for summary
judgment addressing both procedural default and merits issues.
On May 15, 1992, Correll filed his response and moved to
expand the record. On June 19, 1992, respondent heard oral
argument on the State’s motion for summary judgment.
On July 22, 1993, respondent filed a thirty-nine-page order
denying Correll’s motion to expand the record, and finding
procedural default as to twenty-six claims because (1) some claims
were never presented in any state forum; (2) some claims were
presented in a procedurally inappropriate manner and were found
defaulted by the state courts; (3) some claims, even if presented
and reviewed, were waived by Correll’s failure to preserve them
in a motion for rehearing; and (4) the Arizona Supreme Court
found two of the claims waived on direct review.
The order permitted Correll thirty days to submit any
arguments demonstrating cause and prejudice, and granted the
State’s May 29, 1992 motion for an extension of time to file a
brief responding to allegations of cause and prejudice and, if
necessary, further addressing the merits of certain claims.
Respondent then noted that the remainder of the State’s summary
judgment motion would be ripe for final adjudication only when
the State had responded to Correll’s assertions of cause and
prejudice or addressed the merits of any defaulted claims for
which Correll was able to demonstrate cause and prejudice.
}
5 -
On August 31, 1993, the State filed objections to respondent’s
order, arguing that Correll should not be allowed additional time
to demonstrate cause and Prejudice. On September 13, 1993,
Correll filed a motion for reconsideration, which set forth his
Position concerning cause and Prejudice. On October 18, 1993,
respondent held a status conference at which it granted the State’s
motion to file late its response to Correll’s motion.
On November 1, 1993, the State filed its final response on the
issues of cause and prejudice.
2. Villafuerte vy. Lewis
On May 14, 1991, respondent issued a stay of the execution of
Jose Roberto Villafuerte. On July 19, 1991, Villafuerte filed his
first amended petition for a writ of habeas corpus, and the State
responded with a motion for summary judgment on August 26,
1991.
On October 11, 1991, Villafuerte filed a motion to expand the
record and a request for an evidentiary hearing. On
November 14, 1991, after receiving all of the parties’ briefs
addressing the outstanding motions, respondent scheduled oral
argument for March 16, 1992.°
Following argument, on August 3, 1992, respondent issued a
written order that found six claims procedurally barred, required
Villafuerte to demonstrate cause and Prejudice as to those claims
in a supplemental brief, and dismissed without prejudice
Villafuerte’s motion for an evidentiary hearing. On August 21,
1992, Villafuerte moved for reconsideration of respondent’s order
(in lieu of briefing on issues of Cause and prejudice). The State
filed its opposition on September 4, 1992. and *~:pplemented that
Opposition on October 15, 1992.
* Between November 14, 199] and March 16, 1992, the State filed the
transcripts from the state court proceedings and, pursuant to
6
On July 9, 1993, respondent issued a written order that denied
Villafuerte’s motion for reconsideration of respondent’s August 3,
1992 order and entered summary judgment for the State on the six
claims found barred. On September 29, 1993, respondent issued
an eighty-one-page order that denied Villafuerte relief on the
merits of the remaining twenty-one claims and vacated the stay of
execution.
3. Arnett v. Lewis
After vacating its prior dismissal of Jimmy Alan Arnett’s initial
petition for habeas corpus that was filed in 1983, respondent, on
November 22, 1985, granted Arnett’s motion for discovery, and
sua sponte granted summary judgment for the State on several
claims in Arnett’s amended petition.’ From April 1986 to July
1986, Arnett filed several partial summary judgment motions, a
motion for an evidentiary hearing, and a motion for discovery.
In response, the State filed two separate cross motions for partial
summary judgment.
On February 25, 1987, respondent ruled on fourteen of Arnett’s
sixteen claims. Respondent ruled for Arnett on several claims
related to his sentencing, including ineffective assistance of
counsel, and set the death sentence aside. Arnett’s claim that his
1976 confession -- which formed the basis of his conviction --
was coerced was not addressed by any summary judgment
motion, and accordingly the court ordered that an evidentiary
hearing be held. Arnett v. Ricketts, 665 F. Supp. 1437, 1440-46
(D. Ariz. 1987). On March 30, 1987, over the objection of
Arnett’s counsel, respondent granted a motion by the State to stay
the federal habeas proceeding to allow a habeas proceeding in
State court to go forward.
Nineteen months later, following affirmance by the Arizona
Supreme Court of Arnett’s conviction and death sentence, the
State asked respondent to lift the stay of the federal habeas
? The procedural history of Arnett before November, 1985 is described
in Appendix A, at 9a.
7
proceeding, and moved for reconsideration of the February 25,
1987 order. In the alternative, the State also sought permission
to pursue an interlocutory appeal of the court’s order under 28
U.S.C. § 1292(6) (1988). On November 28, 1988, the court
vacated the earlier stay of proceedings, but denied the State’s
additional requests. And consistent with its earlier findings, the
court granted Arnett’s motion to depose various individuals to
prepare for the evidentiary hearing on the allegations of
involuntary confession.
On July 12, 1990, while the parties were still conducting
discovery, the case was reassigned to a newly-appointed judge.
On August 24, 1990, respondent scheduled an evidentiary hearing
for October 29, 1990, but that date was subsequently vacated to
allow further discovery and clarify a number of evidentiary
issues. At status conferences on October 12, 1990 and
November 26, 1990, and at a December 6, 1990 preliminary
hearing, the parties and respondent discussed issues involving
discovery and presentation of evidence. Arnett also filed with the
court seven videotaped depositions relating to Arnett’s allegedly
coerced confession. Respondent noted that it would review the
tapes for admissibility and ordered supplemental briefing
concerning the adimissibility of evidence.
On September 27, 1991, the court granted Arnett’s request to
retain an expert witness. On January 13, 1992, respondent held
a Status conference at which respondent inquired of the parties
whether all of the claims raised in the first amended petition were
addressed by the court’s February 25, 1987 order. In the course
of that conference, it became clear that additional discovery was
necessary to prepare for the evidentiary hearing.
On April 23, 1992, Arnett filed an additional motion for partial
summary judgment on certain claims in the amended petition.
The State filed its response on May 13, 1992. Arnett filed his
reply on July 2, 1992.
At a September !5, 1993 status conference, the admissibility of
various exhibits was discussed at length, and the court scheduled
an evidentiary hearing for November 16, 1993. Although the
8
State represented to respondent that all trial phase claims had been
resolved in its favor, respondent pointed out that a claim
regarding a jury instruction on malice had never been resolved or
even addressed on the merits by the State. On September 28,
1993, the court ordered the State to file a motion for summary
judgment on the remaining claim so that the entire case would be
ripe for decision. On October 15, 1993, the State filed that
motion, and on November 1, 1993, Arnett filed his response.
The evidentiary hearing on the issue of the allegedly coerced
confession occupied five court days and was completed on
December 2, 1993. The court set a final briefing schedule, to be
completed in January 1994.
REASONS FOR DENYING THE WRIT
Petitioner urges this court to invoke the extraordinary remedy
of mandamus for a purpose to which it is completely unsuited -
oversight of the exercise of judicial discretion in managing the
increasingly heavy workload impinging on the federal courts. As
the Chief Justice has stated, "we have gone from a system of -
under-utilized judicial resources 40 years ago to a system which
today is straining at the seams to accommodate the case loads
which are thrust upon it." Chief Justice Discusses Changes in
Justice System, The Third Branch, Nov. 1993, at 7. The
continued expansion of filings compresses the time available to
hear cases and render decisions, and courts like respondent with
especially heavy dockets face an endless challenge to their
creativity in seeking to assure that matters are resolved with
dispatch.
Habeas petitions in capital cases are among the most litigious
and adversarial proceedings on the federal docket. Given the
number and complexity of the claims, the numerous interim
motions, requests for resources, and factual issues to be resolved,
the task facing the district courts is arduous, even when viewed
in isolation. That the task must be carried forward under the
extreme case load pressures now prevailing, and with the constant
possibility of new decisions that will expand, render moot, or put
a
9
pending issues in an entirely new light, makes it all the more
difficult.
Within the constraints of the case load which it must Carry, and
in light of the particular issues presented in the cases whose
handling is challenged, respondent has moved expeditiously in
resolving the death penalty habeas corpus cases presented to it,
including those specifically referenced by the State. It has also
shown substantial initiative and innovation in finding ways to
improve the functioning of the dual state-federal collateral review
process mandated by law.
As this Court has observed, the use of mandamus “has the
unfortunate consequence of making a district court judge a
litigant." Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33,
35 (1980). Its inappropriateness as a way of forcing courts to
move cases more quickly is especially apparent in the context of
federal habeas corpus cases, where the numerous and sometimes
complex factual and procedural issues make any assessment of
judicial timeliness a burdensome endeavor.
For all of these reasons, the State’s petition should be denied.
I. THERE IS NO BASIS FOR AN ORDER OF
MANDAMUS RELATING TO RESPONDENT’S
HANDLING OF THE CORRELL, VILLAFUERTE OR
ARNETT PETITIONS.
A. Mandamus Is An Exceptional Remedy Which Is Only
Available To Limit A Court’s Discretionary Control
Of Its Calendar Where The Court Has Persistently
Refused To Adjudicate A Matter Properly Before It
The remedy of mandamus, as applied to the conduct of a
federal judge, is a “drastic one, to be invoked only in
extraordinary situations." Allied Chemical Corp., 449 U.S. at
34. Its application has been limited to confining "an inferior
court to a lawful exercise of its prescribed jurisdiction or to
compelling] it to exercise its authority when it is its duty to do
so." Roche v. Evaporated Milk Ass’n, 319 U.S. 21, 26 (1943).
10
In general, mandamus is available only where there is a "clear
and indisputable" right to the relief sought, and the party seeking
it has "no other adequate means to attain the relief [it] desires."
Allied Chemical Corp., 449 U.S. at 35 (quotation marks omitted).
It is not an appropriate vehicle for reviewing matters committed
to a judge’s discretion, because "[w]Jhere a matter is committed to
the discretion [of a district court], it cannot be said that a
litigant’s right to a particular result is “clear and indisputable.’"
Id. at 36 (quoting Will v. Calvert Fire Ins. Co., 437 U.S. 655,
666 (1978) (plurality opinion)).
Fifteen years ago, in reversing a grant of mandamus directing
a district court to accelerate its handling of a particular matter, a
plurality of this Court noted that the heavy case loads handled by
federal judges, imposing "competing demands on [judges’] time
for matters properly within [their] jurisdiction and . . . inevitable
scheduling difficulties because of the unavailability of lawyers,
parties, and witnesses," require that judges have "a wide latitude
in setting [their] own calendar[s]." Will, 437 U.S. at 665.
Accord United States v. Taylor, 487 U.S. 326, 343 (1988); Los
Angeles Brush Mfg. Corp. v. James, 272 U.S. 701, 707 (1927).
In view of this broad discretion, mandamus directed to the speed
* Competition for the time of federal district court judges has increased
dramatically since Will v. Calvert Ins. Co. In the District of Arizona,
for example, there has been an increase of 141 cases per judge, from
421 to 562, between 1978 and 1992. The 1992 figures placed
respondent seventh in the United States and second in the Ninth Circuit
in caseload per judge. See Administrative Office of the United States
Courts, Management Statistics for United States Courts, at 100 (1978)
("1978 Rep."); Administrative Office of the United States Courts,
Federal Court Management Statistics, at 126 (1992) ("1992 Rep.").
This increase pales, however, when compared with the rate of
increase in new filings of civil prisoner petitions, which in 1992 in the
District of Arizona exceeded 1.-w filings of civil prisoner petitions in
1978 by almost fivefold. See 1978 Rep. at 100 (reflecting 266 civil
prisoner petitions filed in 1978); 1992 Rep. at 126 (reflecting 1316 civil
prisoner petitions filed in 1992).
cee ea
1]
with which a court acts is reserved for exceptional situations
where a court’s "undue delay is tantamount to failure to exercise
jurisdiction." 16-Charles A. Wright, et al., Federal Practice and
Procedure, § 3933, at 223 (1977). Unless the court “obstinately
refuses to adjudicate a matter properly before it" -- thus failing to
"exercise the jurisdiction of review given by law'" -- delays in
the handling of a case cannot be addressed by mandamus. Will,
437 U.S. at 661-662, 666 (citations omitted).
This Court’s decision in Jn re Blodgett, 112 S.Ct. 674 (1992)
-- denying mandamus -- is not to the contrary.’ In that case, the
court of appeals granted an indefinite stay of execution in March
1989, heard argument in June 1989, and took no further action of
any kind until February 1991 -- 23 months after it issued its stay
and 20 months after oral argument.” Even then, the court of
appeals only acknowledged the developments which had occurred
in the case, requested an update on the status of a state court
petition for collateral relief which had been filed seven months
earlier, and stated that the case was no longer under submission.
Following denial of the state court petition for collateral relief, the
court of appeals on August 7, 1991 granted petitioner’s motion to
* Nor does 28 U.S.C. § 1657, creating a statutory priority for habeas
petitions, support a different result. That statute recognizes four
separate categories of civil cases requiring expedition, including "any
other action if good cause is shown"; sets no time limits for or priorities
among the four classes; and generally recognizes that “each court of the
United States shall determine the order in which civil actions are heard
and determined.” 28 U.S.C. § 1657(a). Thus, Congress recognized and
approved the exercise of discretion necessarily vested in "each court”
with respect to scheduling.
© In failing to take any action during this time period, the court ignored
three separate motions filed in January, April and September of 1990 to
withdraw certain issues to allow petitioner's filing of an additional state
court petition for collateral relief. In addition, the Washington Attorney
General sent letters to the panel in April and October 1990, inquiring
about the status of the case, but neither letter was answered. 112 S.Ct.
at 675.
12
proceed pro se with a third federal petition for habeas corpus, left
its March 1989 stay in effect, and indicated that it would take no
further action until the district court ruled on the new federal
petition.
This Court, presented with an original petition for mandamus
challenging the actions of the Ninth Circuit, found "grounds to
question both the necessity and the propriety of the Ninth
Circuit’s order of August 7, 1991," but concluded that the
requested relief was foreclosed by the State’s failure to lodge its
objection to that order initially with the court of appeals. 112
S.Ct. at 676. In reaching this result, the Court stated the
following rule:
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 steps necessary to ensure a prompt resolution of
the matter, consistent with its duty to give full and fair
consideration to all of the issues presented in the case.
Id.
By its terms, this directive imposes on district courts the duty
to exercise their discretion to insure that consideration of the
issues presented is both expeditious and careful." For
'! While “[flederal courts are not forums in which to relitigate state
trials," they must, in the context of habeas corpus review, "give
nonfrivolous claims of constitutional error the careful attention that they
deserve.” Barefoot v. Estelle, 463 U.S. 880, 887 (1983). The task of
providing expeditious but genuine review of the numerous claims often
raised by habeas petitioners facing the death penalty is a tedious and
difficult one, and demands careful consideration of the trial record and,
often, receipt of additional evidence. See, e.g., Rules Governing
Section 2254 Cases in the United States District Courts, Rule 6
(requiring district court to determine whether an evidentiary hearing is
required on habeas petitions); Sawyer v. Whitley, 112 S. Ct. 2514
(1992)(in death penalty cases, even where Court's cases preclude review
of the merits of successive, abusive or procedurally defaulted claims,
petitioner may require the federal court to hear the merits upon a
eee
ii
mandamus to be appropriate based on an alleged breach of this
duty, it must be clear and indisputable under the circumstances
that the court has failed "to ensure a prompt resolution of the
matter." As with any petition for mandamus, this will be true
only in the exceptional case, where unique circumstances make
unmistakable the court’s disregard of the duty upon it.
Assuming arguendo that mandamus would have been
appropriate in Blodgett but for the State’s failure to object to the
court of appeals’ order, critical characteristics of that case show
that it is no precedent for usins mandamus as a general remedy
to address perceived judicial tardiness in handling initial habeas
corpus petitions. Perhaps most obviously, while judicial delay
provides the backdrop of the challenged conduct at issue in
Blodgett, the mandamus petition there challenged a particular
order of the Ninth Circuit. See Campbell v. Blodgett, 940 F.2d
549 (9th Cir. 1991). The issue thus posed was whether, in
context, the August 7, 1991 order exceeded the appellate court’s
authority -- in part by retaining jurisdiction over a case that was
no longer, in any substantive respect, pending before it. 112
S.Ct. at 675-676. This focus of the issue in Blodgett thus distin-
guishes that case sharply from those where the claim is that a
judge has simply taken too long, overall, to resolve particular
petitions pending before him.
It is also noteworthy that Blodgett involved delay in handling
the appeal of denials of successive habeas petitions, not the
district court’s resolution of an initial petition, as is involved here.
showing of “actual innocence” of the crime, or inapplicability of the
death penalty; concluding, "in view of all of the other evidence in the
record,” that petitioner had not established "actual innocence of death");
Kimmelman v. Morrison, 477 U.S. 365 (1986)("It will generally be
appropriate for a reviewing court to assess counsel’s overall performance
in the case in order to determine whether . . . counsel rendered
reasonable professional assistance"); Zant v. Stephens, 462 U.S. 862,
883, 885 (1983) (habeas petitions in capital cases require "careful
scrutiny” since the death penalty is “qualitatively different” than other
sentences and requires greater reliability).
———
14
This Court has made clear that second and successive petitions for
habeas corpus “present a different issue” from that raised by an
initial petition, and that a greater degree of expedition in that
context may well be appropriate. Blodgett, 112 S.Ct. at 676;
Barefoot v. Estelle, 463 U.S. 880, 895 (1983). The potential for
abuse inherent in such repetitive petitions dictates that they be
scrutinized with a critical eye lest they become simply a means of
delay. See McCleskey v. Zant, 111 §.Ct. 1454, 1467-70 (1991).
Such decisions limiting the habeas remedy rest on the premise that
claims should have been presented initially, and do not suggest
that meaningful review is simply unavailable if it takes too long. *
Moreover, an appellate court, as in Blodgett, has less reason to
engage in extended proceedings because it has a duty to affirm if
the court below is correct on the law and its factual findings are
not clearly erroneous. Amadeo v. Zant, 486 U.S. 214, 223
(1988). Respondent is not authorized to provide appellate-style
review to the initial petitions pending before it.
In sum, the use of mandamus to abrogate a court’s discretion
to control its docket and to reconcile expedition with fairness in
'? While this Court has discussed at length and formulated principles to
address the potential for delay and abuse inherent in second and
successive habeas petitions, it has not wavered from the proposition that
parties have a right to full and fair consideration of properly preserved
and presented federal constitutional claims raised on an initial habeas
corpus petition filed in federal court. See, ¢.g., Vasquez v. Hillery, 474
U.S. 254, 260 (1986)(writ of habeas corpus has "throughout its history”
contemplated “meaningful federal review of constitutional claims");
Bounds v. Smith, 430 U.S. 817, 827 (1977) (habeas corpus petitions
"are of fundamental importance . . . in our constitutional scheme
because they directly protect our most valued rights") (quotations
omitted); Wingo v. Wedding, 418 U.S. 461, 468 (1974)("root principle
[of habeas corpus] is that in a civilized society, government must always
be accountable to the judiciary for a man's imprisonment") (quotations
omitted).
15
particular cases is without support in Blodgett or any other
decision of this Court.”
B. Petitioner Has Failed To Show Any Refusal Or
Unreasonable Delay By The District Court In
Exercising Its Jurisdiction To Resolve The Habeas
Corpus Petitions In Issue
A brief consideration of the cases at issue here demonstrates
that no unreasonable delay -- and certainly none remediable by
‘3 In addition to Blodgett, petitioners mischaracterize other holdings of
this Court relating to the availability of mandamus. Faced with prayers
for mandamus based on claims of "'persistent disregard’ of the rules of
this Court” (Pet. at 14), the Court has exhibited the same restraint that
has marked its decisions focused on judicial delay. See Will v. United
States, 389 U.S. 90 (1967) (willful disobedience to this Court's rules
would not be inferred from district court’s orders tailored to the needs
of the case). And in those cases where mandamus has issued based on
a court’s refusal to act, ordinarily there has been an order of the lower
court disposing of the case in an inappropriate way which denies
effective appellate review, see Insurance Co. v. Comstock, 83 U.S. (16
Wall.) 258, 270 (1873)(mandamus would be appropriate to direct court
of appeals to decide case improperly dismissed for lack of jurisdiction);
Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336 (1976)
(mandamus can issue where district court entered an order remanding
diversity case to state court on a ground -- docket congestion -- not
authorized by statute), or other extreme circumstances making the breach
of duty unmistakable. See La Buy v. Howes Leather Co. , 352 U.S. 249
(1957) (mandamus issued where district court entered orders referring
two cases for trial before a master because of docket congestion; trial
court’s orders abused its reference authority under court rules and
"amount{ed] to little less than an abdication of the judicial function
depriving the parties of [a] trial[] before the court on the basic issues
involved in the litigation").
The State’s intimations to the contrary (Pet. at 14 n.5), the Court has
never issued mandamus to a court that "is doing the best it can with its
current case load,” imposing upon it a rigid set of time limits applicable
to an entire class of cases and without regard to the impact on the rest
of the lower court’s docket.
16
mandamus - occurred with regard to any of them. Contrary to
the State’s assertion of a refusal to act, the record, in each case,
reflects a steady progression of events toward ultimate resolution
by the court.
The State first complains generally about the time that has
elapsed since the petitions in Correll and Arnett were filed. (Pet.
at 11). As a preliminary matter, the issue for the Ninth Circuit
to decide on the State’s petition was whether the records in those
cases clearly demonstrated a basis for directing specific action by
the court at the time the relief was sought. It did not confer upon
the appellate court a roving commission to scrutinize years of
procedural history.
Rather than address specific examples of delay in the individual
cases, the State relies on the circular logic that motions not
decided within the arbitrary time limits the State now seeks to
have imposed are therefore untimely. However, each petition for
habeas corpus presents particular issues and demands upon the
court's time, which must be reconciled with all the other
obligations facing the court. That some decisions are not made
within the time limits the State suggests does not establish an
abdication of respondent’s duties.’
‘* None of the court of appeals cases cited by the State (Pet. at 14 n.5)
supports mandamus in this case. Johnson v. Rogers, 917 F.2d 1283
(10th Cir. 1990), for example, involved the fourteen-month failure of a
court to hear a prisoner’s petition challenging a substantial change in his
presumptive parole date. There were no stays in that case, and the
State promptly filed a response making the entire case ripe for an
immediate hearing. Similarly, in McClellan v. Young, 421 F.2d 690,
691 (6th Cir. 1970), the court of appeals issued a writ of mandamus to
the district court where the sole issue before the district court was one
that had already been answered by the court of appeals. In Jones v.
Shell, 572 F.2d 1278 (8th Cir. 1978), mandamus issued where the
district court failed to carry out the court of appeals’ mandate on remand
by dismissing the petition rather than requiring the State to file a
responsive pleading as required by the court of appeals’ decision.
17
Further, the State is substantially resporsible for much of the
delay of which it complains. It has itself moved for and received
lengthy stays of the proceedings.’ The State has also pursued
what can fairly be termed a piecemeal approach to defense of the
petitions, filing a series of partial summary judgment motions that
did not fully address the claims advanced. And it has, at times,
been painfully slow to advise the court of developments outside
the proceeding which would have allowed the action before the
court to move forward.
The most significant delay in ruling on a motion occurred in
Correll during the period immediately following the case’s
transfer to a new judge in July 1990. But after the State finally
brought to the court’s attention the fact that the sentencing phase
claims in the case could now proceed -- fourteen months after this
Court issued its decisions in Walton and Jeffers -- respondent
promptly ordered a status conference. At that October 1991
conference, the State agreed with respondent that the best way to
resolve the numerous claims in the case was for Correll to file an
amended petition, and for the State to file one summary judgment
motion addressing all of Correll’s claims. That motion resulted
in procedural default findings on approximately half of Correll’s
claims, which in turn required further briefing on cause and
prejudice and, if the State desires, briefing on the merits.
Briefing has subsequently proceeded on the cause and prejudice
issues.
° In Ament, over the objections of Arnett’s counsel, the State received
a stay of the entire proceeding on March 6, 1987. It did not request that
the stay be lifted until nineteen months later. After that stay was lifted,
rather than respond on the merits to Arett’s petition as previously
ordered, the State again sought to stay the proceeding and to pursue an
interlocutory appeal. Vhose motions were denied.
In Correll, the State aise gequested a stay of the entire proceeding on
June 14, 1989, but the cour granted the stay only as to the sentencing
phase claims, which were affected by Adamson v. Ricketts, 865 F.2d
1011 (9th Cir. 1988), cert denied, 497 U.S. 1031 (1990).
18
Villafuerte’s petition was disposed of on September 2, 1993 in
an eighty-one-page opinion addressing twenty-one claims on the
merits and on procedural default grounds. The State implies that
respondent ignored the case following oral argument on the
State’s summary judgment motion on March 16, 1992. Pet. at
11. However, from March 16, 1992 until respondent vacated the
stay of execution on September 29, 1993, respondent resolved the
preliminary but time-consuming issues of procedural default,
allowed Villafuerte an opportunity to demonstrate cause and
prejudice (and the State an opportunity to respond), and denied
Villafuerte’s motion for reconsideration.
In Arnett, the court resolved much of the habeas petition in
1987 by granting summary judgment to the State on some of
Arnett’s claims, granting him a resentencing because of numerous
defects in the sentencing proceedings, and ordering an evidentiary
hearing on his claim of involuntary confession -- a claim neither
the State nor Arnett had addressed in a summary judgment
motion. Since the February 1987 order in Arnett, the State has
taken no initiative to seek resolution of the pending issues in the
case but has acted only in response to actions by Arnett or the
court."® The State recently filed a motion for summary judgment
on the only remaining claim in Arnett, an alleged improper jury
instruction on malice, but only at the request of respondent.”’
Also in Arnett, preparation for the evidentiary hearing on the
involuntary confession claim based on the conditions of
incarceration has involved attempts to locate, interview, and
depose prisoners and prison officials who were at the prison
seventeen years ago, other discovery relating to the conditions of
‘© The State filed cross-motions for summary judgment in response to
Amett’s summary judgment motions.
'? Similarly, respondent notified the State at a January 13, 1992 status
conference that it still had not responded to the four claims raised in
Amett’s amended petition filed on November 28, 1989. The State
agreed at the conference to file a cross motion for summary judgment
on those claims.
19
the prison at that time, and discovery of expert witnesses
regarding Arnett’s mental state. At the January 13, 1992 status
conference, it became clear that the parties had not completed
discovery and could not estimate how long an evidentiary hearing
would take. The State’s mandamus petition to the Ninth Circuit
was the first occasion on which the State objected to delay in
conducting the evidentiary hearing.
The State’s selection of these three cases ignores respondent’s
actual record in disposing of capital habeas petitions. In the
months before the petition for mandamus was filed in the court of
appeals, respondent resolved six capital habeas petitions, either on
the merits or by extensive opinions sending them back to state
court for further proceedings.'* Moreover, respondent’s record
'’ On February 23, 1993, the court denied a next friend petition, Brewer
v. Lewis, No. 93-341-PHX-RGS, attempting to stay an execution. The
petition had been filed just five days before respondent’s decision, and
respondent was required to devote extensive time and resources in order
to resolve the petition promptly. Brewer was subsequently executed.
On November 19, 1992, in Hooper v. Lewis, No. 91-1495-PHX-
SMM, respondent sua sponte dismissed a petition rather than hold the
case in abeyance while Hooper returned to state court, as the State
requested in a motion filed on October 27, 1992. The court found it
unlikely that the State would prematurely seek an execution or that the
Arizona courts would fail to adequately review Hooper's claims.
Similarly, in Bracy v. Lewis, No. 90-1824-PHX-SMM, respondent
dismissed the petition without prejudice on November 19, 1992, less
than one month after Bracy notified respondent that he had commenced
a state collateral proceeding.
In Beaty v. Lewis, No. 92-611-PHX-SMM, Beaty filed a request for
stay of execution on April 2, 1992. After the State objected to this
initial petition, the court issued an expedited briefing schedule and on
May 7, 1992 granted a stay of execution for only 45 days while Beaty
attempted to comply with state court procedures. On June 26, 1992,
after Beaty had begun to follow state court procedures, the court
dismissed the petition.
20
as a whole is completely incompatible with petitioner’s claim that
the court has refused to decide capital habeas corpus petitions.
The Ninth Circuit properly recognized that the State failed
remotely to meet its burden to justify a writ of mandamus with
regard to Correll, Villafuerte, and Arnett; and the State has failed
entirely to make its case for intervention by this Court.
Il. THIS COURT SHOULD NOT GRANT REVIEW FOR
THE PURPOSE OF PROMULGATING PROSPECTIVE
TIME-LIMITS ON THE HANDLING OF FEDERAL
HABEAS CORPUS CASES
Having failed to establish any unauthorized action or refusal to
adjudicate a matter properly before it, as is necessary to support
mandamus in an individual case, petitioners nonetheless urge this
Court to take even more sweeping action. They argue that the
Court should use these cases as a jurisdictional "vehicle . . . to
force the Court of Appeals to exercise its supervisorial authority,
and establish guidelines to enforce this Court’s mandate in [Jn re]
Blodgett[, 112 S.Ct. 674 (1992)]." Pet. Reply at 3. Petitioners’
proposal that the Court "establish a 120-day time limit for ruling
on dispositive motions, a 30-day time limit for ruling on
procedural motions, and a 180-day time limit for scheduling an
evidentiary hearing" in habeas cases involving capital sentences,
Pet. at 16, must be rejected as unsuited for consideration on either
a writ of certiorari to the Ninth Circuit or a petition for
mandamus directed to this Court. In addition, it is a bad idea.
In Harding v. Lewis, No. 92-209-TUC-ACM, petitioner filed a
request for a stay of execution on March 27, 1992, and on April 4,
1992, the day of the hearing, the court denied the stay of execution,
dismissed the successive petition as abusive, denied a certificate of
probable cause, and forwarded all materials in an expedited fashion to
the Ninth Circuit. Harding was executed by the State on April 6, 1992.
In Clark v. Lewis, No. 84-350-TUC-WDB, petitioner requested that
his case be re-opened and filed a successive petition on April 11, 1993.
The next day, the court denied a stay of execution and dismissed the
petition. Clark was executed in August 1993.
a ee ee
———— 2 —=«<_
21
Insofar as the State requested the Ninth Circuit -- and now
requests this Court -- to establish general time limitations on
judicial action reaching beyond any particular case, there is no
clear and indisputable right to the relief sought. Because the
promulgation of rules concerning the timely administration of
justice plainly involwes an exercise of substantial discretion, the
petition for mandamus is obviously without merit.
Further militating against the availability of mandamus,
alternative avenues are available to pursue the sort of quasi-
legislative proposal petitioners advance. Such an order directing
that priority be giyen to particular categories of matters in
accordance with a specified schedule would most appropriately be
sought in the form of a federal statute, on the model of the federal
Speedy Trial Act, 18 U.S.C. § 3161 ef seq., or a revision of the
Federal Rules Governing Section 2254 Cases in the United States
District Courts."® Alternatively, such relief might be sought
'% See 28 U.S.C. §§ 2071, 2072, 2074 (1988) (permitting the various
federal courts to prescribe their own rules for "the conduct of their
business," but generally “only after giving appropriate public notice and
an opportunity for comment"; and requiring that rules proposed by this
Court be transmitted for congressional review prior to their effective
date); Barker v. Wingo, 407 U.S. 514, 523 (1972)(noting, in declining
to impose specific time periods to implement constitutional guarantee of
speedy trial, that “such a result would require this Court to engage in
legislative or rulemaking activity, rather than in the adjudicative process
to which we should confine our efforts"); Sarah Beale, Reconsidering
Supervisory Power in Criminal Cases: Constitutional and Statutory
Limits on the Authority of Federal Courts, 84 Colum. L. Rev. 1433,
1482-83 (1984) ("The announcement of a general rule in the course of
the adjudication of a specific case or controversy provides less
opportunity for the consideration of views from all relevant quarters, and
is less likely to lead to comprehensive and integrated treatment of related
problems... . These careful restrictions on the Court cast grave doubt
on the claim that Congress implicitly granted the courts adjudicative
authority to establish procedural rules free of both procedural restrictions
and congressional oversight.") (footnotes omitted). See also Miner v.
Atlass, 363 U.S. 641, 645 ( 1960)(rulemaking procedures were “designed
22
from the judicial council of the circuit, which has the power to
"make ail necessary and appropriate orders for the effective and
expeditious administration of justice" within the circuit. 28
U.S.C. § 332(d)(1) (1988).”
Even if properly proposed, however, a set of deadlines such as
petitioners suggest would be imprudent for several reasons. The
excessive case loads now carried by the federal courts make it
more critical than ever that judges be allowed wide latitude in
controlling their own calendars.“ In addition, petitioner’s
to insure that basic procedural innovations shall be introduced only after
mature consideration of informed opinion from ull relevant quarters,
with all the opportunities for comprehensive and integrated treatment
which such consideration affords"); Sibbach v. Wilson & Co., 312 U.S.
1, 15 (1941) (Congress understood the value of reserving an opportunity
to veto proposed rules before their effective date).
® As noted by Justice Harlan in his concurring opinion in Chandler v.
Judicial Council of Tenth Circuit, 398 U.S. 74, 98 (1970), the "Judicial
Council . . . was designed as an actual participant in the management of
the judicial work of the circuit." Thus, it is empowered to hold
hearings, take sworn testimony, and issue subpoenas and subpoenas
duces tecum related to the administration of justice within the circuit.
28 U.S.C. § 332(d)(1). All judicial officers are bound by statute to
obey the council’s orders, or risk institution of contempt proceedings.
28 U.S.C. § 332(d)(2). The judicial council thus has the power to make
the sort of factual inquiry required to determine the desirability of
imposing a schedule for adjudication of habeas petitions in capital cases,
and to compel compliance with such a schedule if one be properly put
in place.
| In 1992, criminal cases represented almost one fourth of respondent's
new filings. See 1992 Rep. at 126. Those cases, of course, required
prompt adjudication in accordance with the provisions of the Speedy
Trial Act. In the same time period, prisoner petitions constituted almost
one third of all new filings. Jd. Respondent in 1992 experienced the
second highest number of new prisoner petition filings of any district in
the nation; the only district with higher numbers was the Middle District
of Florida, which has three more judgeships than respondent. /d. With
a a le ee ee ee ee ee ee
23
proposal fails to take into account the fact-intensive nature of
habeas review, and the wide variety in size of records and
seriousness of the issues raised.
As a result, any attempt to confine capital habeas review
inflexibly to particular narrow time limits would have two
unfortunate probable consequences. One would be the disruption
of the court’s handling of other urgent business, including pending
criminal matters involving incarcerated defendants whose guilt has
yet to be determined, temporary restraining orders and
injunctions, and issues of public concern demanding a prompt
resolution.” The second might well be the failure to give full
and appropriate consideration to federal constitutional issues
raised in more difficult habeas cases.
The allowance of exceptions to the time limits upon a showing
of unusual circumstances would not make the proposal viable.
Such an approach would consume additional judicial resources in
determining the appropriateness of time limits, and if made
reviewable, would make the district court judge a habitual litigant.
See Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 35
(1980). Judges would face the choice of meeting the presumptive
over 100 inmates presently on Arizona’s death row, the burden placed
on respondent by capital habeas petitions is unlikely to decrease any time
soon.
” For example, in Arizonians for Fair Representation v. Symington, 828
F. Supp. 684 (D. Ariz. 1992), because of a legislative impasse in
redistricting Arizona’s congressional districts, respondent was forced to
expend significant resources in a compressed time period to formulate
a redistricting plan. In less than three months, respondent, sitting as a
three judge court, heard and read the statements of numerous expert and
lay witnesses, considered and ruled on a barrage of pre-trial motions on
procedural and evidentiary issues, held trial, considered and ruled on a
variety of post trial motions, and issued a written opinion and order
adopting a redistricting plan. This case, the decision in which was
summarily affirmed by this Court, 113 S. Ct. 1573 (1993), occupied
substantial time which might have been devoted to the three matters
which are the focus of the State’s petition.
24
deadline or justifying their failure to do so in collateral litigation.
See Ortega Rodriguez v. United States, 113 S.Ct. 1199, 1206
(1993) (exercise of supervisory authority would not serve the
interests of efficient judicial operations, where it would result in
a "flurry of extraneous matters . . . divert[ing) the court's
attention from the merits of the case").
Petitioners’ proposal for uniform mandatory time limits is also
unnecessary, and completely ignores the substantial steps that
have already been taken by respondent to expedite the handling of
death penalty cases. First, the court has assigned a judge to serve
as the death penalty coordinator for all capital habeas corpus
petitions. When petitions are filed, the coordinator appoints
counsel as soon as possible, and issues an order that sets a
briefing schedule designed to prevent numerous delaying
amendments.” That order also requires the State to file an
answer as well as any additional responses, such as summary
judgment motions, by a date certain after the amended petition is
filed.
Second, the court has recently been engaged in a dialogue with
Arizona state court judges to establish procedures for more
efficiently resolving post-conviction proceedings in capital cases.
See Appendix B, Letter from the Hon. Stephen M. McNamee to
the Hon. Robert J. Corcoran and the Hon. Ronald S. Reinstein,
Sept. 22, 1993. Among the proposals being discussed are
establishing a central repository for all records and other pertinent
material in capital cases, modification of case management, and
amendment of Rule 32 of the Arizona Rules of Criminal
Procedure (governing preclusion), the application of which often
* Under respondent’s order, habeas corpus petitioners are allowed time
to research and investigate their claims before filing am amended
petition. However, when the amended petition is filed, the order states
that the petitioner will be presumed to have deliberately waived his right
to complain of any constitutional errors or deprivations other than those
set forth in his amended petition.
— a
25
causes respondent considerable difficulty in resolving State
summary judgment motions alleging procedural default.™
Thus, in a fundamental sense, petitioners’ real complaint
concerns the existence of the federal habeas remedy in the first
place, rather than any overall abuse of the system resulting from
undue delay. The unavoidable consequences of Congress's
decision to provide such review -- and of the holdings of this
Court insuring that the writ is preserved as a meaningful remedy
~~ are that federal habeas proceedings will delay the “finality” of
State death sentences, thus occasioning additional costs to the State
and compromising to varying degree the “orderly” and effective
enforcement of state death penalty laws, the public’s confidence
in the authoritativeness of those laws, the deterrent effect of death
sentences, and the "comity" between state and federal judges. As
stated in McCleskey v. Zant, 111 S.Ct. 1454, 1469 (1991), the
“federal writ of habeas corpus overrides all these considerations,
essential as they are to the rule of law, when a petitioner raises a
meritorious constitutional claim in a proper manner in a habeas
petition." That remedy can be effective only where the federal
court is allowed the time and the discretion to provide the review
that is appropriate in the individual case. Cf. Barker vy. Wingo,
407 U.S. 514 (1972) ("We cannot definitively say how long is too
long in a system where justice is supposed to be swift but
deliberate"; accordingly, constitutional right to speedy trial must
be gauged on an “ad hoc" basis).
* In addition, in July 1991, the Ninth Circuit Judicial Council’s Death
Penalty Task Force, after significant work by judges and practitioners
in the circuit, published a “Capital Punishment Handbook" to assist
judges and law clerks in dealing with capital habeas petitions.
26
CONCLUSION
For the reasons set forth above, the petition should be denied.
Respectfuily submitted,
DONALD B. AYER
Counsel of Record
SARAH L. WANNER
STEPHEN J. JORDEN
JONES, DAY, REAVIS & POGUE
1450 G St., N.W.
Washington, D.C. 20005-2088
(202) 879-4689
Counsel for Respondent
December 13, 1993
APPENDICES
en ee
APPENDIX A
PROCEDURAL HISTORY OF CORRELL V. LEWIS,
VILLAFUERTE V. LEWIS AND ARNETT V. LEWIS"
I. CORRELL v. LEWIS
DATE DE N VE
9/15/87
- Correll files a preliminary petition for writ of
habeas corpus, an «application for stay of
execution and a motion for appointment of
counsel.
9/18/87 -- The district court issues an order staying
Correll’s execution.
10/2/87
The court appoints two attorneys to represent
Correll and orders the State to file a response
1/7/88 | — The court grants Correll’s request for leave to
file an amended petition amd orders that the
clerical error at the court, the State did not
receive copies of the October 2, 1987 or January
7, 1988 orders.)
2/24/88 — Correll files the amended petition for writ of
habeas corpus and serves a copy on the State.
1/17/89 — The court orders the parties to file written
Status reports regarding measures necessary to
bring the case to issue.
2/3/89 -— Correll files a written status report and an
application for the entry of default.
” Information set forth in bold face was not referenced in the State’s
petition for certiorari.
DATE
2/8/89
2/14/89
2/27/89
4/10/89
6/14/89
7/21/89
9/7/89
2a
DESCRIPTION OF EVENT
Default is entered by the clerk of the district
court.
The State files a motion to set aside the entry
of default.
The court issues an order setting aside the
entry of default and orders the State to file a
response to the amended petition.
The State files a motion to dismiss the amended
petition on the ground that Correll did not
exhaust remedies available in state court.
Correll files his response to the State’s motion
to dismiss.
The State files its reply to Correll’s response.
The court denies the State’s motion to dismiss
and orders the State to file a response to the
The State moves the court to stay further
proceedings in light of Adamson v. Ricketts, 865
F.2d 1011 (9th Cir. 1988) (holding application of
sentencing provision of Arizona's death penalty
Statute unconstitutional).
The court grants the State’s motion to stay the
proceedings related to Correll’s sentencing
claims, but orders the proceedings relating to
remainder of the claims to continue. The court
orders the State to file a response by
August 20, 1989.
The State files two separate motions for summary
judgment or alternatively for dismissal.
in Ae ae Sa
EO ee et i 1 i Ome + .
3a
DATE ~—siDESCRIPTION OF EVENT
9/28/89 — Correll files a motion to strike the State’s
partial summary judgment motions and for an
entry of default against the State for failure to
file a Rule 5 answer to the petition.
10/3/89 — The State files a response to Correll’s motion
to strike and for entry of default.
10/30/89 -— The court denies Correll’s motions to strike
and for default.
11/15/89 -- Correll files a response to the State’s summary
judgment motions.
12/4/89 -- The State files its reply.
2/10/90 -- Correll files a second request to amend petition
with two additional claims.
2/23/90 - The State files an opposition to Correll’s request
to amend.
3/7/90 ~=— Correll files his reply.
3/14/90 — The court grants Correll’s request to amend the
4/2/90 - The State files a separate summary judgment
motion on the newly added claims.
5/7/90 — Correll files a response to the State’s motion
for summary judgment.
7/13/90 — The case is reassigned to newly appointed
District Court Judge Stephen McNamee.
7/19/90 — The Court grants Correll’s motion for
appointment of an investigator.
4a
DATE DESCRIPTION OF EVENT
9/6/91 — The State files a brief request for a ruling in
the case, citing Walton v. Arizona, 497 U.S.
639 (1990) and Lewis v. Jeffers, 497 U.S. 764
(1990).
9/27/91 -- The court orders a status conference for
October 4, 1991.
10/4/91 -- The court holds a status conference.
1. The State informs the court of the
procedural history of the case and notes that
the State had filed a response to the guilt
phase claims, but had not yet responded to
sentencing phase issues presented in Correll’s
petition.
2. The State informs the court that it is
appropriate to allow Correll to amend his
petition.
3. The State agrees that the most efficient
approach would be to vacate the other
previously filed motions for summary
judgment and to proceed with one motion.
4. The court vacates the previously issued stay
of proceedings regarding Correll’s sentencing
claims and issues a briefing schedule.
5. The court sets a status conference for
May 11, 1992.
12/6/91 -- Correll files the third amended petition for writ
of habeas corpus, which raises approximately
53 separate claims.
2/14/92 -- The State files a new motion for summary
judgment.
5/15/92
5/29/92
6/19/92
3/23/93
7/1/93
7/22/93
Sa
DESCRIPTION OF EVENT
The court grants Correll’s motion for an
extension of time to respond to the motion for
summary judgment.
Correll files his response to the State’s summary
judgment motion and moves to expand the
record.
The State files its reply in support of its summary
judgment motion, its response to Correll’s
motion to expand the record, and a motion for
an extension of time to respond to any future
arguments by Correll regarding cause and
prejudice. (The State’s motion for an
extension of time also requested additional
time to address the merits of any defaulted
claims for which Correll could demonstrate
cause and prejudice).
The court hears oral argument on the motion for
summary judgment; the court states that it will
enter a formal written order.
The State files a request for a ruling on its
summary judgment motion.
The State files a petition for Writ of Mandamus
with the Court of Appeals for the Ninth Circuit.
The court files a 39-page order that:
1. resolves various technical defects with the
presentation of claims in the amended petition
and related pleadings;
2. denies Correll’s motion to expand the record:
3. finds 26 of Correll’s claims procedurally
barred;
DATE
8/31/93
9/13/93
10/18/93
11/1/93
6a
DESCRIPTION OF EVENT
4. allows Correll 30 days to submit any
arguments demonstrating cause and prejudice to
overcome the findings of default;
5. grants the State’s May 29, 1992 motion for
additienaltime to respond to any allegations of
cause and prejudice submitted by Correll and
to address the merits of certain claims;
6. deems the State’s motion for summary
judgment to be no longer under advisement
because of the outstanding issues of cause and
prejudice.
The State files objections to respondent’s order
and contends that it was error to allow Correll
additional time to demonstrate cause and
prejudice.
Correll files his motion for reconsideration and
showing of cause and prejudice.
The court grants the State’s motion for leave
to accept the State’s late filing of responses to
Correl!’s motions for reconsideration and
showing of cause and prejudice. The State’s
failure to submit additional briefing was
excused by the court based on an error in
calendaring deadlines. The court again notes
that the State’s summary judgment motion is
no longer ripe given that the motion does not
address Correll’s claims of cause and
prejudice.
The State files its response to Correll’s motion
for reconsideration and showing of cause and
prejudice.
7a
II. VILLAFUERTE yv. LEWIS
DATE
5/9/91
5/14/91
6/26/91
7/19/91
8/26/91
10/11/91
10/17/91
10/29/91
11/7/91
11/14/91
11/27/91
12/10/91
DESCRIPTION
Villafuerte files a preliminary petition for writ of
habeas corpus, an application for stay of execu-
tion, and a motion for appointment of counsel.
The court issues a stay of execution and appoints
counsel.
The court grants Villafuerte’s motion for
extension of time to file an amended petition.
Villafuerte files an amended petition.
The State files a motion for summary judgment.
Villafuerte files a motion to expand the record
and a request for an evidentiary hearing.
Villafuerte files a response to the State’s
summary judgment motion.
The court finds Villafuerte’s request to expand
the record moot.
The State files a response to Villafuerte’s
motion for an evidentiary hearing and a reply
brief in support of its summary judgment
motion.
The court schedules oral argument on the
State’s summary judgment motion for January
13, 1992.
The State files transcripts from state court
proceedings.
To force compliance with local rules, the court
orders Villafuerte to file a statement of facts in
support of his previously submitted response to
the State’s summary judgment motion. The
DATE
12/20/91
3/16/92
7/17/92
8/3/92
8/21/92
9/4/92
10/15/92
7/1/93
7/9/93
8a
DESCRIPTION OF EVENT
court allows the State to amend its motion and
schedules oral argument for March 16, 1992.
Villafuerte files a statement of facts.
The court hears oral argument on the State’s
motion for summary judgment and takes it under
advisement.
The State supplements the record to include
the Arizona Supreme Court’s order denying
review of Villafuerte’s post-conviction relief
petition.
The court issues an order finding six claims
procedurally barred and orders additional
briefing by both parties on issues of cause and
prejudice. The court dismisses without preju-
dice Villafuerte’s motion for an evidentiary
hearing.
Villafuerte moves for reconsideration of denial
of his request for an evidentiary hearing (in
lieu of a separate brief on issues of cause and
prejudice).
The State files its opposition to Villafuerte’s
motions.
The State supplements its opposition.
The State files a petition for Writ of Mandamus
with the Court of Appeals for the Ninth Circuit.
The court denies reconsideration of its findings
and dismissal of Correll’s request for an evi-
dentiary hearing, and grants summary judgment
on the six claims found barred.
DATE
oe
9/29/93
9a
a
DESCRIPTION OF EVENT
-- The court issues an 8l-page order denying
Villafuerte all relief, granting the State’s motion
for summary judgment and vacating the
previously issued stay of execution.
Ill. ARNETT v. LEWIS
DATE
11/3/83
1/3/84
2/6/84
DESCRIPTION
-- Arnett files a petition for writ of habeas corpus
and stay of execution.
-~ The State answers the petition.
— Arnett challenges the sufficiency of the State’s
Rule 5 answer.
12/10/84 — Arnett files a motion for discovery, including
6/3/85
6/13/85
10/4/85
interrogatories and requests for production of
documents and admissions.
-— The court finds that some claims are not
exhausted and dismisses the petition without
prejudice.
— Arnett files a motion to amend or alter the
judgment.
— The court grants Arnett’s motion and vacates
its June 3, 1985 order and vacates the
judgment.
11/22/85 — After conducting an informal conference, the
4/9/86
court grants in part Arnett’s motion for
discovery and sua sponte grants summary
judgment for the State on several claims.
-- Arnett files a motion for partial summary
judgment.
5/12/86
7/86
7/30/86
2/25/87
10a
The State files a cross motion for partial
summary judgment.
Arnett files two additional motions for partial
summary judgment, a motion for an evidentiary
hearing, and requests for discovery.
The State files a further cross motion for
partial summary judgment.
The court grants partial relief to Arnett on his
summary judgment motions. The order sets
aside Arnett’s sentencing and allows an
evidentiary hearing on the voluntariness of the
confession on which his conviction was based.
665 F. Supp. 1437, 1440-1446.
With respect to Arnett’s sentencing phase
claims, the court finds:
1. A Miranda violation in connection with a
psychiatric evaluation ordered by the State,
the report of which was used at the sentencing
hearing;
2. A Miranda violation resulting from actions
by the probation officer who prepared the
presentencing report;
3. A denial of confrontation at the sentencing;
4. A lack of competent proof of aggravation;
5. Ineffective assistance of counsel at the
sentencing phase; and
6. The improper admission of an invalid
California conviction.
(The State did not seek summary judgment on
Arnett’s claim that his confession was coerced
by the allegedly deplorable condition of his
1976 incarceration. Id. at 1446. Nor did it
3/6/87
3/19/87
3/30/87
7/29/88
10/3/88
11/1/88
11/21/88
11/28/88
lla
DESCRIPTION OF EVENT
address Arnett’s ciaim of an improper jury
instruction on malice.)
The State seeks a stay of the proceedings pending
conclusion of Arnett’s state collateral
proceedings.
Arnett files a response opposing the State’s
motion for a stay of the habeas proceedings.
Over the objections of Arnett’s counsel, the
court grants the State’s request for a stay of all
matters, including the evidentiary hearing.
The Supreme court of Arizona affirms Arnett’s
conviction and death sentence. State v. Arnett,
158 Ariz. 15, 760 P.2d 1064 (1988).
The State asks the court to lift the stay and grant
a rehearing of its February 25, 1987 order, or to
allow the State to seek interlocutory appeal
under 28 U.S.C. 1292(b) and issue a stay
pending that appeal.
Arnett files a response to the State’s motion to
grant a rehearing of the court’s February 25,
1987 order and to appeal.
Arnett requests permission to amend his petition
to include new issues recently decided by
Arizona Supreme court.
The court vacates its previously issued stay of
proceedings, denies the State permission to
pursue an interlocutory appeal and grants
Arnett’s motion to depose various individuals
in preparation for the evidentiary hearing.
The court allows Arnett to amend his petition
12a
DATE DESCRIPTION OF EVENT
with additional claims that were exhausted in
State court.
8/29/89 -— The State files a motion to dismiss the petition.
11/28/89 — Arnett files an amended petition.
7/12/90 - The case is reassigned to newly appointed
District Court Judge McNamee.
8/24/90 — The court schedules an evidentiary hearing for
October 29, 1990.
10/12/90 — The court conducts a status conference
regarding the manner in which the hearing
would proceed and schedules a follow-up
conference for November 26, 1990.
11/26/90 — The court holds a status conference and
schedules a _ preliminary hearing for
December 6, 1990.
12/6/90 — The court conducts a preliminary hearing: the
parties discuss issues involving discovery and
the presentation of evidence; Arnett files seven
videotaped depositions relating to Arnett’s
allegedly coerced confession. The court states
that it will review the depositions and orders
supplemental hearing memoranda from the
State in response to Arnett’s memorandum on
the admissibility of evidence.
12/21/90 — The State files its response to Armnett’s
memorandum regarding admissibility of
evidence.
1/25/91 — Arnett files a reply to the State’s response.
DATE
9/27/91
12/30/91
1/13/92
13a
DESCRIPTION OF EVENT
The court grants Arnett’s ex-parte request for
additional resources including the appointment
of an expert witnesses.
The court schedules a status conference for
January 13, 1992 regarding scheduling the
evidentiary hearing.
The court holds a status conference to discuss
discovery and evidentiary issues, and to obtain
information regarding the evidentiary hearing.
1. The court asks the parties how changes in
case law would affect the court’s February 25,
1987 order. In response, the State requests
the oppertunity to investigate any change in
the case law that might affect the court’s
previous rulings in favor of Arnett.
2. Inresponse to the court’s questioning about
claims raised in the amended petition filed on
November 28, 1989, counsel for Arnett states
that he is preparing a summary judgment
motion on those issues. Counsel for the State
States that he is not aware of the amended
petition or whether the State had responded to
the petition. At the request of the court, the
State agrees to file a cross-motion for
summary judgment on the additional claims.
3. The court asks the parties to determine
whether any prior order had disposed of
Arnett’s claim regarding a jury instruction on
malice because the court had not been able to
locate any such decision.
4. The court questions the parties about how
long the evidentiary hearings will take.
DATE
4/16/92
4/23/92
5/13/92
7/2/92
7/1/93
9/3/93
9/15/93
9/28/93
l4a
DESCRIPTION OF EVENT
5. Both parties agree to allow depositions of
any expert witnesses they expect to call.
The court orders Arnett to file a statement of
facts in connection with the filing of a partial
summary judgment motion.
Arnett files a further motion for partial summary
judgments on the new claims in the amended
petition filed on November 28, 1988.
The State files its response to Arnett’s motion for
partial summary judgment.
Arnett files his reply.
The State files a petition for Writ of Mandamus
with the Court of Appeals for the Ninth Circuit.
The court schedules a status conference for
September 15, 1993.
The court holds a status conference: at which
the admissibility of various exhibits is dis-
cussed, and the court schedules an evidentiary
hearing for November 16, 1993. The court
questions the State as to why they had not
requested a summary judgment with respect to
a jury instruction claim when the court’s
February 25, 1987 opinion pointed out that the
State had not addressed the claim, and notes
that case was never technically ripe for final
resolution.
After reviewing the previously submitted
videotaped depositions, the court issues an
order admitting the remaining exhibits and
depositions and authorizing subpoenas to
conduct videotaped depositions of out-of-state
DATE
10/15/93 —
11/1/93 -
11/16-18, —
11/23,
12/2/93
15a
DESCRIPTION OF EVENT
witnesses. The court orders the State to file a
motion for summary judgment on_ the
remaining claim pertaining to the jury
instructions on malice, and notes that the
State’s argument that the case is ripe for
review is based on inaccurate assumptions
rather than a thorough review of record.
The State files a motion for summary
judgment on the malice instruction pursuant to
the court’s order.
Arnett files his response.
The court holds an evidentiary hearing on the
issue of the allegedly coerced confession.
The court sets a final briefing schedule, to be
completed in January, 1994.
16a
APPENDIX B
UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA
United States Courthouse
230 North First Avenue
Phoenix, Arizona 85025
Stephen M. McNamee Telephone: 602-514-7016
United States District Judge FAX: 602-514-7173
September 22, 1993
Honorable Robert J. Corcoran
Supreme Court of Arizona
1501 West Washington
Phoenix, Arizona 85007-3229
Honorable Ronald S. Reinstein
Superior Court of Maricopa County
101 West Washington
Suite No. 514
Phoenix, Arizona 85003-2205
Dear Bob and Ron:
As we recently discussed, capital cases present significant
judicial and administrative challenges to both state and federal
courts. It is my hope that the enclosed summary of our informal
discussion regarding these issues may be useful in implementing
potential solutions to these problems and creating a more
productive relationship between the state and federal judiciary.
Many of the problems associated with capital cases stem from
the inordinate amount of time they require to achieve final
resolution and from the often highly technical procedural path
they travel through each judicial system.
17a
One of our mutual concerns is to try to establish a series of
procedures that will allow petitioners to exercise their rights while
at the same time construct a framework for the orderly processing
of capital cases. While still in the “thinking” stages, these
concepts should serve as the basis for further dialogue between
us.
I. CENTRALIZED CONTROL OF THE RECORD
The first suggestion is that we explore the feasibility of
establishing a central depository or "library" for all records,
exhibits, transcripts, and other pertinent materials in capital cases.
The depository would function through a clerk’s office and
would assist our courts in creating and maintaining a uniform case
record. Counsel would have unlimited access to the records;
however, they would be required to re-deposit the records at the
conclusion of their involvement in the case. the records would
then be available for subsequent counsel. As you are aware, it is
not uncommon for a petitioner to have three or mcre counsel
throughout these protracted proceedings.
Hopefully, this procedure would ensure that no portions of the
record are lacking regardless of that forum the case may be in or
when counsel became involved in the matter. Further, a central
depository would place responsibility for the preservation oft he
records on the individuals who utilized them and would eliminate
the unnecessary expenditure of taxpayer dollars to reproduce the
entire record repeatedly.
A central depository may also reduce the time new attorneys
require the "get up to speed" on a case because they would no
longer be required to expend valuable time assembling the record
from prior counsel if it is still available. Moreover, centralization
of the record would allow the courts to utilize a uniform
numbering system for all documents and exhibits. In this manner,
confusion would be eliminated and references to the record in
state or federal orders would be identical. This system would
18a
provide for a more efficient, accurate, and timely review of a
petitioner’s claims. -
Il. MODIFICATION OF CASE MANAGEMENT & AMEND-
MENT OF RULE 32
A. Case Management:
One of the problems that we hope to avoid by adopting
uniform case management procedures is to reduce the "ping-pong"
effect between the state and federal forums in capital cases. Our
obvious goal is the effective review of claims within an orderly
framework.
The "problem areas" associated with the management of
capital cases can be grouped into three basic categories: The
presentation of claims; judicial rulings or orders; and the
procedural posture or forum in which the case should proceed.
1. Petitioners often present their claims in a confusing
manner. Further, various methods i.e., numerical, alphabetical,
or merely paragraph designations are used to separate allegations.
The confusion is compounded through successive petitions which
adopt, change, or inodify overlapping claims. One suggested
method of identifying claims in all state and federal collateral
proceedings would be to adopt a uniform identification for claims.
Further, I would suggest that all claims be grouped in two major
categories: Guilt Phase Claims & Sentencing Phase Claims.
If a uniform numbering of claims were adopted, a petitioner’s
allegations of error would be "permanently" identifiable by one
numerical designation throughout all state and _ federal
proceedings. As the state post-conviction court would control
these designations, it would also be effective to require that all
additional Rule 32 petitions number claims as if continuing with
the initial proceeding. For example, if the first petition raised
claims 1-10 (guilt phase) and 1-5 (sentencing), a second petition
should be numbered claims 11-16 (guilt) and 6-9 (sentencing).
19a
If implemented this procedure would greatly reduce the
confusion associated with successive petitions in both state and
federal courts. It would allow for a more simp’ified
determination of what were new/successive/or abusive claims. It
would be especially helpful when our courts are reviewing
petitions in light of Rule 32.2 (procedural default) or McCleskey
+ Zant, 111 S.Ct. 1454 (1991)(abuse of the writ). Also, it would
help to make petitions more understandable in the event of a
change or modification of case law.
2. Petitioners often attempt to proceed through the state
system in an almost pro forma fashion merely for the purpose of
avoiding a procedural default. The petitions do not comport to
state procedural rules for meaningful development of a claim.
The petitioners’ purpose has been to reach the federal courts as
quickly as possible because they are more likely to obtain greater
resources and counsel will receive greater compensation all
pursuant to federal statutes. See 21 U.S.C. § 848(q)(4)(B), et
seq.
Upon reaching the federal courts, petitioners make broad
requests for discovery and additional resources, often alleging that
arbitrary deprivation of such resources in the state system
prevented them form adequately developing or presenting their
claims. Petitioners then claim arbitrary deprivation because state
court orders often state no more than that the request is "denied."
If orders were to specify the basis for denying additional
resources, discovery, or evidentiary hearings, state appellate
courts and federal courts could more effectively and efficiently
review these requests to determine whether a petitioner is entitled
to such services or procedures. A finding that a petitioner failed
to articulate the basis for his request or that he failed to
demonstrate good cause would be of significant value to reviewing
courts.
These modifications would require petitioners to more
carefully adhere to post-conviction rules in state court and would
help to eliminate the apparent unfairness of the federal courts
20a
reviewing claims presented in a substantially different light than
when presented to the state courts. I believe this procedure is
particularly appropriate in light of the Supreme Court’s recent
rulings in McCleskey v. Zant, 111 S.Ct. 1454 (1991) and Keeney
v. Tamayo-Reyes, 112 §.Ct. 1715 (1992).
3. Another problem confronting our courts is determining in
which forum a claim should be litigated. Obviously, the proble
m involves primarily "new" claims raised in successive petitions.
If state remedies remain available, then federal law requires
that the state courts first determine the merits of the claim. If no
remedies are available, then a federal court may apply state
procedural rules to find the claim procedurally barred. In some
cases, however, this determination may be unclear resulting in the
awkward "stay/abeyance" procedure discussed below.
As noted above, the uniform method of numbering claims
would greatly reduce the confusion with respect to this issue.
B. Rule 32:
As previously noted, petitioners often place the state and
federal courts in a virtual "tug of war." This conflict can occur
when a petitioner is attempting to litigate matters in both forums
simultaneously. A brief explanation of the procedural posture in
these situations may be helpful to expiain the need for the
suggested amendment to Rule 32.
1. Procedural Posture
Once the amended federal petition is filed, inevitable new and
previously unpresented claims are raised. At this point, the
federal court has three choices: dismiss the petition to allow for
state exhaustion; find the claims barred and resolve the petition;
or hold the petition in abeyance pending exhaustion of the claims
in state court.
2la
The only time the abeyance procedure is utilized is when it is
unclear whether state remedies remain available for the
presentation of a claim under the exceptions to Rule 32.2. The
federal court may choose to hold a petition in abeyance as
opposed to dismissing the petition to ensure that a warrant of
execution is not issued prior to an adjudication of petitioner’s
claims or a determination is made as to their procedural posture.
2. Problem
The abeyance procedure is disruptive and disfavored. A case
remains in federal court for purposes of continuing a stay of
execution, yet all activity is occurring in state court. This
procedure tends to allow cases to languish in both forums for an
inordinate amount of time. The only reason it is utilized is
because a procedural anomaly exists in Rule 32.
Defendants commence a successive Rule 32 proceeding by
filing a petition in the Superior Court. However, any stay of
execution on a successive Rule 32 petition must be obtained from
the Arizona Supreme Court pursuant to Rule 32.4 (f). Rule 32.4
(f) requires defendants to demonstrate why their new claims
would not be precluded from review under Rule 32.2
The problem facing this Court is what to do when the Arizona
Supreme Court denies a stay of execution, but the petition itself
remains pending in the Superior Court. (Another twist to this
procedure occurs when a petitioner files a successive petition in
the Superior Court but fails to file for a stay of execution in the
Supreme Court.)
Arguably, a finding of preclusion has already been rendered
by the denial of a stay. However, nothing within the Arizona
Rules of Criminal Procedure prevents the Superior Court judge
from adjudicating the petition and rendering a decision on the
merits. Thus, in an emergency, petitioners claim state procedures
are ineffective and request the federal court to stay their execution
pending completion of state proceedings.
22a
3. Proposed Amendment
One idea we discussed is a possible amendment to Rule 32.4
(f) as follows:
[N]o stay of execution shall be granted upon the filing of a
second or subsequent petition except upon separate application
for a stay to the Supreme Court, setting forth with
particularity those issue not precluded under Rule 32.2. If it
i rmi r ti
[Proposed amendment consists of underlined language]
4. Benefits
The proposed amendment would significantly reduce confusion
between the state and federal systems, ensure adjudication of
claims presented in a procedurally appropriate manner, and reduce
the state court’s docket as well as the time for processing
successive state petitions.
When confronted with an issue of exhaustion, the federal court
could immediately dismiss the petition and vacate the stay of
execution. Petitioners could then commence their successive Rule
32 proceeding. If a new warrant is issued, the petitioner could
apply for a stay to the Supreme Court, and, if it is denied,
petitioner’s state proceedings would terminate and petitioner
would file anew action in federal court presenting only exhaust-
ed claims.
As we discussed, the purpose of our discussion is to develop and
modify some procedures to bring a more orderly and effective
review of claims of error to the courts. In many instances, the
23a
petitioner has significant burdens of proof under Rule 32. Under
McCleskey and Tamayo-Reyes, the perfection of the record at the
initial appeal and post-conviction relief petition is essential.
Obviously, these ideas must be "kicked around" by a wider circle
of interested parties. However, it is a beginning.
I look forward to hearing your views and concerns.
Very truly yours,
Stephen M. McNamee
United States District Judge
SMM\ctk
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.