Amicus Curiae Brief — Woodford v. Morris

MAY 4 2001 No. 00-1322

Supreme Court of the United States

JEANNE WOODFORD, Warden,

California State Prison at San Quentin,

Petitioner,

VS.

BRUCE WAYNE Morris,

Respondent.

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

CHARLES L. HOBSON

Counsel of Record

Criminal Justice Legal Fdn.

2131 L Street

Sacramento, CA 95816

Phone: (916) 446-0345

Fax: (916) 446-1194

E-mail: cjlf@cjlf.org

Attorneys for Amicus Curiae

Criminal Justice Legal Foundation

eee, “ih, RAP PD et iy "A

QUESTIONS PRESENTED

1. Does the diligence standard of Keeney v. Tamayo-Reyes,

504 U. S. 1 (1992) and Williams v. Taylor, 529 U. S. 420

(2000) apply when the prisoner’s state habeas petition and

request for an evidentiary hearing were dismissed by the state

court on alternate state grounds when the federal circuit court

holds that one of these grounds is not independent from federal

law?

2. Is a prisoner entitled to an evidentiary hearing merely

because he raised a ‘colorable’ claim even though the District

Court issued an undisturbed finding that the prisoner failed to

produce any evidence in state or federal court of any genuine

issues of material fact?

(i)

IN THE

Supreme Court of the United States

JEANNE WOODFORD, Warden,

California State Prison at San Quentin, :

Petitioner,

vs,

BRUCE WAYNE Morais,

Respondent.

SS SS SE

MOTION OF AMICUS CURIAE FOR LEAVE

TO FILE BRIEF IN SUPPORT OF THE

PETITION FOR WRIT OF CERTIORARI

SSE a TI SS

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

this case. Counsel for petitioner has consented, but counsel for

respondent has withheld consent.

INTEREST OF AMICUS CURIAE

The Criminal Justice Legal Foundation (CJLF) is a non-

profit 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

1. This brief was written entirely by counsel for amicus, as listed on the

cover, and not by counsel for any party. No outside contributions were

made to the preparation or submission of this brief.

iV

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 requirement that a federal habeas petitioner must be

diligent in establishing an evidentiary basis for his claims in

state court before being entitled to an evidentiary hearing in

federal court plays an important role in protecting the integrity

of state court convictions. The Ninth Circuit’s refusal to apply

this rule to this case threatens to turn federal habeas corpus into

a forum for relitigating state convictions. This attack on

comity, federalism, and finality is contrary to the rights of

victims and society which the CJLF was formed to advance.

For the foregoing reasons, amicus requests leave to file its

brief.

May, 2001

Respectfully submitted,

CHARLES L. HOBSON

Attorney for Amicus Curiae

Criminal Justice Legal Foundation

_ TABLE OF CONTENTS

Questions presented ............ cece eeceecscrcceees i

Motion for leave to file ......... cee eect eee enennes ili

Interest Of GmMiCUS CUTIAE ©... 6... cece e ere nes iii

Table of authorities. 0.0... 6c. ce ck ccc then tae 8 vi

Brief of Qmicus CUTIAE .... 6c cece eee eee ee ne rens l

Summary of facts and case ........-- eee cece eee eens l

Summary of argument ........-.-- eee e cere eee eens 3

ATSUMEM 2... cc ccc cc ccesceesececencccscceererse 4

I

The decision conflicts with Keeney’s diligence standard .. 5

A. The diligence requirement ............---+++- 5

B. Contradicting Keeney ............ cece eee eees 7

C. Contradicting circuits ............-- eee eee 10

II

This case presents important issues that deserve

this Court’s attemtioh 2 6.6. bib cee ee tse asec 12

Il

The Ninth Circuit’s persistent failure to respect California’s

procedural default rules is incorrect .........----+--> it

SR Rae e Large ee er ee ee te 16

(v)

TABLE OF AUTHORITIES

Cases

Army & Air Force Exchange Service v. Sheehan, 456 U. S.

728, 72 L. Ed. 2d 520, 102 S. Ct. 2118 (1982) ........ i)

Baja v. Ducharme, 187 F. 3d 1075 (CA9 1999) ........ 11

Blackledge v. Allison, 431 U. S. 63, 52 L. Ed. 2d 136, |

97 S. Ce. TGET COSTED con ccuncvescsseveunee 5

Bragg v. Galaza, 242 F. 3d 1082 (CA9 2001) .......... 1]

Byrd v. Collins, 209 F. 3d 486 (CA6 2000) ........... 10

Davis v. United States, 417 U. S. 333, 41 L. Ed. 2d 109,

96S. CE ZISCTISM oka vicsieetanee eee 12

Davis v. Zant, 36 F. 3d 1538 (CAI11 1994) ............ 12

Dowthitt v. Johnson, 230 F. 3d 733 (CA8 2000) ........ 10

Fields v. Calderon, 125 F. 3d 757 (CA9 1997) ...... 14, 15

Flamer v. Delaware, 68 F. 3d 710 (CA3 1995) ......... 11

Ford v. Georgia, 498 U. S. 411, 112 L. Ed. 2d 935,

133 &. Ce Ba CiOped okviccecudcsseiessae ee 15

Harris v. Reed, 489 U. S. 255, 103 L. Ed. 2d 308,

169 G. Ce. HS Cee veo ecedecdec ewer eveses lee 14

Hill v. Jones, 81 F. 3d 1015 (CA11 1996) ............. 10

In re Clark, 5 Cal. 4th 750, 21 Cal. Rptr. 2d 509,

SSS F. 26 729 USPS) 6h obs ev aces vedaxete 3, 13, 14, 15

In re Dixon, 41 Cal. 2d 756, 264 P. 2d 513 (1953) ...... 15

John Hancock Mut. Life Ins. Co. v. Bartels, 308 U.S. 180,

$4 L. Ed. 24 176, 60 S. Ce. Z22 (ISSR) ww ccc cccccces 12

eaarerrrerereemenneeeretaamereicneaaaiaiiiaiacaaiiiiaiaianiailiiisiiaiidiiiaaiiiiall

Keeney v. Tamayo-Reyes, 504 U. S. 1, 118 L. Ed. 2d 318,

ail Pe.

Rt lay

RF Yin bas

yctk oe

112 S. Ce. 17351982) .. oss iis ees 4,7, 8,12

La Crosse v. Kernan, No. 97-55085, 2001 Daily Journal

D.A.R. 3023 (CA9, March 26, 2001) ............... 15

La Crosse v. Kernan, 211 F. 3d 468 (CA9 2000) ....... 15

Lugar v. Edmondson Oil Co., 457 U. S. 922,

73 L. Ed. 2d 482, 102 S. Ct. 2744 (1982) ............ 9

McCown v. Callahan, 726 F. 2d 1 (CAI 1984) ......... 15

Morris v. Dormire, 217 F. 3d 556 (CA8 2000) ......... 11

Morris v. Woodford, 229 F. 3d 775

ee EE nib. 5 Detctrinrtt-testnigda a eates 2, 3, 9, 13, 14, 15

NAACP v. Alabama ex rel. Patterson, 357 U. S. 449,

2 L. Ed. 2d 1488, 78 S. Ct. 1163 (1958) ............ 15

- Ohio v. Robinette, 519 U. S. 33, 136 L. Ed. 2d 347,

Sue Oy ee I rs 5 ho sk edn ee ae 5 oes 16

Park v. California, 202 F. 3d 1146 (CA9 2000)...... 14,15

People v. Duvall, 9 Cal. 4th 464, 37 Cal. Rptr. 2d 259,

Ss A SED 5 ok 60s dba ba eoA bere ei eet es 6

People v. Karis, 46 Cal. 3d 612, 250 Cal. Rptr. 659,

PORT UE i dnckbdsuriitddadbencassaes 6

People v. Morris, 53 Cal. 3d 152, 279 Cal. Rptr. 720,

I See ies as ok hn dae ie 1,2

United States v. Doe, 465 U. S. 605, 79 L. Ed. 2d 552,

fa Red SPS pee a ae ee 9

Valdez v. Ward, 219 F. 3d 1222 (CA10 2000) ......... 11

Williams v. Taylor, 529 U. S. 420, 146 L. Ed. 2d 389,

ey ee ee err rere 7, 8, 9, 12, 13

am i

Vili

United States Statute

me Ui, ae 4, BE os Dae e ee kbs bask eek voce 4

Rules of Court

Pee, Mees GOV. FR on bos ce kd he Ree ork ees 13

Sunes Coutt BG IGD 6666 ee HATO EES 5

SS CUE BHO BONED 6 vcd ka vc swhaneedudwarueen 5

Treatises

D. Fischer & R. Lynn, Appeals and Writs in Criminal Cases

i Gs ee I a 6 cv cas Chi dhe aceaee cai 6

D. Fischer, et al., Appeals and Writs in Criminal Cases

OE. ee 65 oe AS kk kn OR ne ows 7

B. Witkin & N. Epstein, California Criminal Law

Sy SN e.6 ace ins BORN s Apa ees where 7

B. Witkin & N. Epstein, California Criminal Law,

COR WIM: IO cc di Wesne pea ansade cus 7

IN THE

Supreme Court of the United States

JEANNE WOODFORD, Warden,

California State Prison at San Quentin,

Petitioner,

VS.

BRUCE WAYNE Morris,

Respondeni.

SESS SEES RS RR reer ne ee ag eee

BRIEF AMICUS CURIAE OF THE

CRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF THE PETITION

FOR WRIT OF CERTIORARI

a eS ES _ ere

SUMMARY OF FACTS AND CASE

On September 11 or 12, Rickey Van Zandt picked up Bruce

Morris, the habeas petitioner in this case, and two female

companions who were hitchhiking from Sacramento, Califor-

nia, to the north shore of Lake Tahoe. See People v. Morris, 53

Cal. 3d 152, 176, 807 P. 2d 949, 959 (1991). During the trip,

Morris decided to stab Van Zandt in the back and take the van.

Ibid. When the opportunity presented itself, Morris attacked

Van Zandt with a rock, hitting him on the head 13 times. Id.,

at 177, 807 P. 2d, at 960. He dragged Van Zandt from the van

and rolled him down a slope. At this time, Van Zandt “was

moaning; blood and brain fluids oozed from his head.” Jbid.

Van Zandt was still moaning when they reached the bottom of

the slope. Morris then “picked up a stick, lifted it over his

head, told Van Zandt that he was sorry, and hit him on the back

of the head three times.” /bid. Van Zandt’s dead body was

found “on September 17, five or six-days after he was left on

the slope.” /bid.

On June 22, 1987, Morris was found guilty of first-degree

robbery and murder with the special circumstance that the

murder was committed in the course of a robbery. See Morris

v. Woodford, 229 F. 3d 775, 777 (CA9 2000). He was subse-

quently sentenced to death. See ibid. On September 7, 1990,

the California Supreme Court denied his first state habeas

corpus petition and affirmed his conviction on direct review on

March 28, 1991. /d., at 777-778.

Morris filed his first federal habeas petition on June 15,

1993. See id., at 778. The District Court partially granted

California’s motion to dismiss on exhaustion grounds, while

staying the case to allow the petitioner to exhaust his state

remedies. /bid. Over the next one and one-half years, the

District Court paid $94,927.92 in pre-petition investigative fees

to appointed counsel. See Pet. for Cert. 3. On December 1,

1995, Morris filed a second state habeas petition, which

included claims of ineffective assistance of counsel and

incompetency to aid counsel. See ibid. In this petition, Morris

requested discovery and an evidentiary hearing for his ineffec-

tive assistance of counsel and incompetency claims, but gave no

evidentiary support for these claims. /bid. On December 5,

1995, the California Supreme Court denied the petition in the

following order:

“The petition for writ of habeas corpus, filed on Decem-

ber 1, 1995, is denied. All claims are based on information

that was long known or should have been known to peti-

tioner or his counsel and could have been raised in peti-

tioner’s earlier habeas corpus petition; petitioner fails to

allege with particularity any fact not earlier known to

petitioner. No sufficient justification has been offered to

explain the delay or the successive petition, and no funda-

mental miscarriage of justice has been demonstrated to

excuse either. (See Supreme Court Policies Regarding

Cases Arising From Judgments of Death, std. 1-1.2; Jn re

Clark (1993) 5 Cal.4th 750, 767-782 [successive petitions],

783-787 [delay], 797-798 [exceptions].) Accordingly, the a

petition is denied as untimely. It is also denied on the

merits. (See Harris v. Reed (1989) 489 U. S. 255, 264,

fn. 10.)” California Supreme Court Minutes-3-(Dec. 6,

1995).

Morris filed an amended federal petition, the subject of the

present case, on January 17, 1996. Morris, 229 F. 3d, at 778.

The District Court dismissed as procedurally barred all of

petitioner’s claims raised in the second state petition and

several other claims, while granting California’s motion for

summary judgment on all the other claims. Jbid. The District

Court aiso held that the procedurally barred claims were

meritless. See Pet. for Cert. 4.

The Ninth Circuit vacated the District Court’s opinion and

remanded the case for an evidentiary hearing on the ineffective

assistance of counsel and incompetency claims. See Morris,

229 F. 3d, at 781-782. It held that Jn re Clark, 5 Cal. 4th 750,

855 P. 2d 729 (1993), was not an adequate and independent

state law ground, see Morris, supra, at 780, and that because

there was no evidentiary hearing on the second state habeas

petition, the prisoner was entitled to an evidentiary hearing on

these claims in federal court. See id., at 781. No other justifi-

cation was given for this holding. See ibid. On November 16,

2000, the Ninth Circuit denied California’s motion for a

rehearing en banc.

SUMMARY OF ARGUMENT

Under California law, the prisoner must attach all relevant

supporting materials to the habeas petition. California courts

summarily dismiss petitions without supporting materials. The

California Supreme Court’s dismissal of the second habeas

petition without an evidentiary hearing was a proper decision

on the merits of the case, in that the habeas petitioner had failed

to substantiate the factual basis of his claims.

The diligence standard of Keeney v. Tamayo-Reyes is a

threshold requirement separate from its cause and prejudice

test. As explained in Williams v. Taylor, the diligence inquiry

is always made first whenever there has been a failure to

develop evidence in state court. A prisoner who has not been

diligent must then meet a heightened standard before being

entitled to an evidentiary hearing. The Ninth Circuit’s failure

to follow this process contradicts Keeney. This also contradicts

the practices of other circuits, and even other Ninth Circuit

decisions.

The conflict between Keeney and circuit precedent deserves

this Court’s attention. While Williams provided some guidance

on what constituted sufficient diligence, it did not deal with the

relationship between diligence and state procedural defaults

found in this case. The diligence standard is an important limit

on the relitigation of state criminal convictions in federal court.

Because this case can serve as an important bookend to

Williams, certiorari should be granted.

ARGUMENT

The Ninth Circuit’s decision in this case provides two

independently sufficient grounds for this Court to exercise its

certiorari jurisdiction: the improper failure to apply the

diligence standard of Keeney v. Tamayo-Reyes, 504 U. S. 1

(1992) and the decision’s apparent failure to follow summary

judgment procedure when confronted with habeas claims that

involved no substantial factual dispute. Amicus will focus its

attention on the Keeney issue. Keeney’s diligence standard is

still an integral part of habeas procedure, now codified in 28

U.S. C. §2254(e)(2).' The Ninth Circuit's failure to apply this

standard to the prisoner’s demand for an evidentiary hearing

establishes precedent that conflicts with this Court’s decisions,

and the practices of other circuits.

I. The decision conflicts with Keeney’s

diligence standard.

The Ninth Circuit’s treatment of the evidentiary hearing

question provides two grounds for granting certiorari. First, the

decision contradicts these cases, thus deciding “an important

federal question in a way that conflicts with relevant decisions

of this Court.” Supreme Court Rule 10(c). Additionally, its

treatment of the diligence requirement is contrary to the

treatment by other circuits, creating a “conflict with the

decision of another United States court of appeals on the same

important matter .. . .” Supreme Court Rule 10(a). In this

portion of the brief, amicus highlights the conflict. In part II,

infra, amicus demonstrates the importance of resolving the

conflict.

A. The Diligence Requirement.

This case’s importance begins with an understanding of

California’s habeas procedure. In this case, the prisoner’s

second habeas petition included no supporting material for his

claims. See Pet. for Cert. 3. The California Supreme Court’s

summary dismissal of the second petition was a consequence of

the lack of evidentiary support for the petition, and therefore

1. The Ninth Circuit’s departure from the summary judgment procedure

of Blackledge v. Allison, 431 U.S. 63, 80 (1977) also justifies certiorari

review. California ably demonstrates that summary judgment is an

important tool for the speedy resolution of habeas petitions. The Ninth

Circuit decision is incompatible with this Court’s summary judgment

cases. It rewards the petitioner for withholding information from state

and federal court. See Pet. for Cert. 11-16.

this case cannot be distinguished from Keeney v. Tamayo-

Reyes, 504 U. S. 1 (1992).

A habeas petitioner in California courts has a “burden of

pleading adequate grounds for relief... .” People v. Duvall, 9

Cal. 4th 464, 474, 886 P. 2d 1252, 1258 (1995). Therefore, the

habeas “petition should both (i) state fully and with particularity

the facts on which relief is sought, as well as (ii) include copies

of reasonably available documentary evidence supporting the

claim, including pertinent portions of trial transcripts and

affidavits or declarations.” Jbid. (citations omitted). Duvall

was decided in January 1995, nearly eleven months before the

prisoner submitted his second state petition. The Duvall

decision did not state any new principles of California habeas

procedure. “Conclusory allegations made without any explana- |

tion of the basis for the allegations do not warrant relief, /et

alone an evidentiary hearing.” People v. Karis, 46 Cal. 3d 612,

656, 758 P. 2d 1189, 1216 (1988) (emphasis added).

These requirements were well known to California practi-

tioners when Morris’s counsel filed the second petition.

“Furthermore, all relevant records and other evidence necessary

to establish a right to relief must be attached to the pleadings as

supporting exhibits or lodged with the court.” D. Fischer &

R. Lynn, Appeals and Writs in Criminal Cases § 2.136, p. 313

(Cal. Cont. Ed. Bar 1982). As the leading authority on Califor-

nia procedure explained:

“Frequently, the petition is treated as a ‘traverse’ or answer

to the return and as the entire showing of the petitioner,

without any further pleading or supporting papers (see infra,

§ 3377). Hence, unless he attaches to his petition copies of |

the relevant records or other documentary evidence

supporting his claim of illegal restraint, it may be sum- |

marily denied. (See In re Kolbe (1934) 139 C.A. 239, 240, |

33 P.2d 840 [claim of commitment without probable cause;

transcript of preliminary hearing not brought up]; Matter of

Crowley (1915) 171 C. 58, 59, 151 P. 739 [claim of arrest

under invalid ordinance; neither copy of ordinance nor

ee ETT

complaint furnished]; Jn re Jackson (1939) 33 C.A.2d 724,

92 P.2d 951 [same, claim of conviction]; In re Swain (1949)

34 C.2d 300, 302, 209 P.2d 793 [claim of conviction on

perjured testimony knowingly used; testimony not quoted

or otherwise specifically designated].)” 6 B. Witkin &

N. Epstein, California Criminal Law § 3360, p. 4170 (2d ed.

1989) (emphasis added).”

Thus, long-established California law gave habeas petition-

ers, including Morris, clear notice that they needed to attach the

relevant supporting materials to avoid a dismissal and obtain an

evidentiary hearing. The state court’s dismissal on the merits

without a hearing, as an alternative holding to its untimeliness

and successive petition grounds, was correct under well-

established law. Morris’s failure to attach the materials

constitutes a failure to develop the facts in state court within the

meaning of Keeney and Williams v. Taylor, 529 U. S. 420

(2000).

B. Contradicting Keeney.

The Ninth Circuit’s decision conflicts with the diligence

standard of Keeney v. Tamayo-Reyes, supra, and Williams,

supra. The analysis of a habeas petitioner’s claim to an

evidentiary hearing is split into two parts under Keeney and

Williams. First, the court must determine whether the petitioner

acted diligently in developing the facts supporting his claims in

state court. If the petitioner was not diligent, then the court

makes a separate inquiry into whether the fault is excused. “As

is evident from the similarity between the Court’s phrasing in

Keeney and the opening clause of §2254(e)(2), Congress

2. Amicus quotes from the editions of the above treatises that were

available when the second state habeas petition was being prepared.

The current editions of both treatises state the same rule. See 1 D.

Fiseher, et al., Appeals and Writs in Criminal Cases § 2.188, p. 392 (2d

ed. 2000); 6 B. Witkin & N. Epstein, California Criminal Law,

Criminal Writs § 56, pp. 590-591 (3d ed. 2000).

intended to preserve at least one aspect of Keeney’s holding:

habeas petitioners who are at fault for the deficiency in the

state-court record must satisfy a heightened standard to obtain

an evidentiary hearing.” Williams, 529 U. S., at 433. This isa

diligence standard. See id., at 432; Keeney, 504 U. S., at 8

(“petitioner’s negligent failure to develop facts”). Diligence is

thus separate from the cause and prejudice test or § 2254(e)(2)’s

more stringent requirements. “To be sure, in requiring that

prisoners who have not been diligent satisfy § 2254(e)(2)’s

provisions rather than show cause and prejudice, . . . Congress

raised the bar Keeney imposed on prisoners who were not

diligent in state-court proceedings.” Williams, 529 U. S., at

433. While § 2254(e)(2)’s excuse standard is more difficult for

the prisoner to meet than Keeney’s cause and prejudice test, the

initial requirement that the prisoner was diligent in state court

remains the same. See ibid. Whenever a petitioner asserts an

entitlement to a federal evidentiary hearing, the federal habeas

court must first determine whether the petitioner was diligent.

Although the Ninth Circuit mentioned Keeney, it did not

apply the decision.

“The state argues that the lack of a factual record is

Petitioner’s fault and that Petitioner’s failure to provide

more factual support for his claims militates against

granting an evidentiary hearing. We agree that a petitioner

who negligently fails to develop the material facts support-

ing a claim at the state-court level generally is not entitled

to a federal evidentiary hearing. See Keeney v. Tamayo-

Reyes, 504 U.S. 1, 11, 112 S.Ct. 1715, 118 L.Ed.2d 318 |

(1992); Correll v. Stewart, 137 F.3d 1404, 1413 (9th Cir.

1998). But here, as in Correll and Siripongs [v. Calderon,

35 F. 3d 1308 (CA9 1994)], Petitioner did not receive an

evidentiary hearing in state court, either; indeed, his second

state-court petition was denied only five days after it was

filed. Thus, he has not received an evidentiary hearing on

these claims at any level. In the circumstances, we will not |

address the merits of Petitioner’s claims of incompetence

rE

and ineffective assistance of counsel without giving him an

opportunity for an evidentiary hearing.” Morris v. Wood-

ford, 229 F. 3d 775, 781 (CA9 2000).

This passage does not come to grips with the fact that the

state court dismissed on the alternative grounds of the merits as

weil as on procedural defeult. See infra, at 13-14. The state

petition lacked merit because of its failure to substantiate the

factual basis of the claims.

The diligence standard is not limited to cases where the

prisoner actually received an evidentiary hearing in state court.

Whenever a fact was not developed in state court, a federal

court must first determine whether the prisoner was at fault for

the failure. “Diligence will require in the usual case that the

prisoner, at a minimum, seek an evidentiary hearing in state

court in the manner prescribed by state law.” Williams, 529

U. S., at 437 (emphasis added). The prisoner did not do this in

this case and was therefore properly denied an evidentiary

hearing by the California Supreme Court. See part I A, supra.

“For state courts to have their rightful opportunity to

adjudicate federal rights, the prisoner must be diligent in

developing the record and presenting, if possible, all claims

of constitutional error. . .. Federal courts sitting in habeas

are not an alternative forum for trying facts and issues

which a prisoner made insufficient effort to pursue in state

proceedings.” Williams, supra, at 437.

The Ninth Circuit did not apply this standard to the present

case.

It is clear that the Ninth Circuit has disregarded Keeney.

Conflict between the decision of a circuit court and one of this

Court’s precedents provides a strong reason for granting

certiorari. See, e.g., United States v. Doe, 465 U.S. 605, 610

(1984); Lugar v. Edmondson Oil Co., 457 U. S. 922, 926

(1982); Army & Air Force Exchange Service v. Sheehan, 456

U. S. 728, 733 (1982). That conflict is highlighted by how

10

differently the diligence standard is treated in other circuits and

even in other Ninth Circuit decisions.

C. Contradicting Circuits.

In addition to being contrary to Keeney, the approach taken

by the Ninth Circuit in this case is also inconsistent with other

circuits’ approaches to the diligence standard. Decisions in

other circuits demonstrate that the habeas petitioner must

explain why the facts were not developed in a state hearing or

lose the right to a federal evidentiary hearing. Sometimes this

involves a fairly detailed analysis of the relevant state court

procedures for developing evidence and how the petitioner

utilized these procedures in the state court. For example, in

Byrd v. Collins, 209 F. 3d 486 (CA6 2000), the circuit court

began its analysis of the Keeney issue with a thorough descrip-

tion of the Ohio procedure for holding post-conviction eviden-

tiary hearings. See id., at 512-513. After determining that the

petitioner did not avail himself of the many opportunities to

develop his case in the Ohio courts, see id., at 513-514, the

court came to the only conclusion allowed by Keeney, that he

was not entitled to an evidentiary hearing in federal court. See

id., at 516. “To hold otherwise in Petitioner’s case would not

only be contrary to well-settled law, but would also establish a

blueprint for-delay by other capital defendants.” Jbid. Simi-

larly detailed analysis is also found in Hill v. Jones, 81 F. 3d

1015 (CA11 1996), in which the court undertook a detailed

examination of Alabama procedure before determining that

because the underlying claim was procedurally defaulted, the

petitioner was not entitled to a federal evidentiary hearing. See

id., at 1022-1026. Yet another example of this is Dowthitt v.

Johnson, 230 F. 3d 733, 758 (CA8 2000), where the filing of a

request for a state evidentiary hearing was not enough to

establish diligence. The prisoner’s failure to provide affidavits

to support his request demonstrated insufficient diligence, see

ibid., a situation no different from the present case. See ibid.

(“mere requests for an evidentiary hearing will not suffice; the

11

petitioner must be diligent in pursuing the factual developments

of his claim”).

Other circuits also follow Keeney’s dictate that the habeas

petitioner must justify why the facts were not developed in the

state court before being entitled to a federal evidentiary hearing.

These decisions typically dismiss the petitioner’s request in a

summary fashion, while noting the failure to carry the burden

of justification. See, e.g., Morris v. Dormire, 217 F. 3d 556,

560 (CA8 2000) (“no attempt to satisfy the statutory require-

ments”); Valdez v. Ward, 219 F. 3d 1222, 1230 (CA10 2000)

(failure to request a hearing in state court); Flamer v. Delaware, -

68 F. 3d 710, 735, n. 24 (CA3 1995). The decisions of these

and other circuits demonstrate the habeas petitioner’s heavy

burden of explaining undeveloped facts. “Absent extraordinary

circumstances, a habeas petitioner may not seek an evidentiary

hearing on the basis of records that were available to him

during the state court’s proceedings but that he did not present.”

Flamer, supra, at 735, n. 24. The decision in this case contra-

dicts all of these decisions by failing to require diligence on the

part of the petitioner in seeking an evidentiary hearing in the

California courts.

Even other Ninth Circuit decisions recognize that the habeas

petitioner must explain why an evidentiary hearing was not

conducted in the state courts. For example, in Baja v. Duchar-

me, 187 F. 3d 1075 (CA9 1999), because “Baja has not ex-

plained why the evidence needed to support” his claim was not

developed at the state level, he was not entitled to a federal

evidentiary hearing. /d., at 1079. Similarly, in Bragg v.

Galaza, 242 F. 3d 1082 (CA9 2001), the prisoner’s failure to

file a state habeas petition kept him from developing the factual

record for his ineffective assistance of counsel claim, thus

preventing him from receiving a federal evidentiary hearing.

See id., at 1089. The inability to explain the lack of a state

hearing meant that the petitioner did not demonstrate the

necessary diligence to be entitled to a federal hearing. See ibid.

Although intracircuit conflict is usually best resolved within the

12

conflicted circuit, see Davis v. United States, 417 U. S. 333,

340 (1974), this option was foreclosed in this case, as the Ninth

Circuit denied en banc review. See supra, at 3. Since this case

involves recurring and important issues, see part II, infra, and

conflicts with the decisions of other circuits, the intracircuit

conflict provides an additional reason to grant certiorari. See

John Hancock Mut. Life Ins. Co. v. Bartels, 308 U.S. 180, 181

(1939).

H. This case presents important issues that

deserve this Court’s attention.

This case raises issues concerning the proper administration

of the diligence standard of Keeney v. Tamayo-Reyes, 504 U.S.

1 (1992) and Williams v. Taylor, 529 U. S. 420 (2000) that

justify a grant of certiorari in this case. This standard is an

important asset for preserving the finality of state convictions

because “requiring a federal evidentiary hearing solely on the

basis of a habeas petitioner’s negligent failure to develop facts

in Sstate-court proceedings, dramatically increases the opportuni-

ties to relitigate a conviction.” Keeney, 504 U. S., at 8-9.

While this Court did provide some guidance on what constitutes

sufficient diligence in Williams, see 529 U. S., at 438-444, it is

not enough. There remain important issues about the relation-

ship between diligence and state procedures that this Court

should address.

Determining whether a prisoner has cause for failing to

develop facts in state court can pose difficult questions. See

Davis v. Zant, 36 F. 3d 1538, 1544 (CA11 1994). One particu-

larly important issue that this case may illuminate is the role

state procedural rules play in determining whether the prisoner

has cause for not developing evidence in the state courts. Since

the Keeney standard is derived from the same concerns that

motivated this Court’s procedural default cases, see 504 U. S..,

at 8, state rules governing the post-conviction development of

evidence should be respected. “Diligence will require in the

13

This case can be an important bookend to Williams. The

claims for which the Ninth Circuit granted an evidentiary

hearing were rejected as procedurally defaulted by the Califor-

nia Supreme Court. See supra, at 2. Although the panel in this

case gave no real reason for granting an evidentiary hearing, the

only possible justification would seem to be its holding that the

relevant California procedural default rule, Jn re Clark, 5

Cal. 4th 750, 855 P. 2d 729 (1993), was “not an independent

and adequate state-law ground.” Morris v. Woodford, 229

F. 3d 775, 780 (CA9 2000) (emphasis in original). The fact that

there was no evidentiary hearing is not enough by itself to

distinguish Keeney under Ninth Circuit precedent; other Ninth

Circuit decisions require the petitioner to explain why there was

no evidentiary hearing in state court, or satisfy the exceptions

to Keeney and Williams. See supra, at 11. Therefore, the

decision in this case is best explained by the Ninth Circuit’s

refusal to recognize Clark’s procedural bar.

The Ninth Circuit’s decision did not acknowledge that there

was an alternative ground for dismissing the petition without an

evidentiary hearing. As explained in part I A, supra, Morris

contravened the California rule requiring habeas petitions to be

accompanied by all materials necessary to support his claim,

which results in a dismissal of the habeas petition without an

evidentiary hearing. In federal procedure, this would be

equivalent to a plaintiff's failure to provide the factual basis to

resist a summary judgment motion. See Fed. Rule Civ. Proc.

56(e). The California Supreme Court’s dismissal on the merits

as an alternate ground to Clark reflects this situation. Because

Morris did not meet his evidentiary burden, his petition was

14

dismissed on the merits without an evidentiary hearing. See

supra, at 7. Keeney is tailor-made for this type of case.

To hold that Keeney does not apply because the petition is

also barred by other procedural rules creates a perverse result.

Had Morris not violated the Clark rules, then the Ninth Circuit

would have no grounds for distinguishing Keeney. Yet this

seems to be the implication of the Ninth Circuit’s decision. In

addition to giving California prisoners an incentive to violate

state procedural default rules, this result also contradicts the

rule of Harris v. Reed, 489 U. S. 255 (1989), that alternative

holdings do not give up the force of either ground under the

adequate and independent state ground doctrine. See id., at

264, n. 10. This anomalous result should not stand unexam-

ined.

This case demonstrates that Keeney and Williams raise

important, unresolved issues about the relationship between

state procedural rules and the requirement that a habeas

petitioner must diligently develop the evidentiary support for

his or her claims in state court. The Ninth Circuit’s decision

also shows that the federal courts need guidance on these

issues. This case presents an excellent vehicle for clarifying

Keeney’s diligence standard.

Ill. The Ninth Circuit’s persistent failure to respect

California’s procedural default rules is incorrect.

In the present case, the Ninth Circuit held that California’s

rule on untimely petitions, Jn re Clark, 5 Cal. 4th 750, 855

P. 2d 729 (1993), is not an independent and adequate state law

ground that bars federal review of claims dismissed under its

rule. See Morris v. Woodford, 229 F. 3d 775, 780 (CA9 2000).

This holding continues the practice of earlier Ninth Circuit

decisions, declaring that California habeas rules are not

independent and adequate state grounds. See Park v. Califor-

nia, 202 F. 3d 1146, 1153 (CA9 2000); Fields v. Calderon, 125

F. 3d 757, 765 (CA9 1997). Fields and Park address the rule

15

of In re Dixon, 41 Cal. 2d 756, 759, 264 P. 2d 513, 514 (1953),

that issues which should have been raised on appeal generally

are not considered on habeas. These Ninth Circuit cases

declined to respect the Dixon rule because of the exceptions to

it that had been recognized by California courts. See Fields,

125 F. 3d, at 764-765 (“flexible application of the Dixon rule”);

Park, 202 F. 3d, at 1152-1153 (fundamental constitutional error

exception to Dixon rule renders that rule not independent of

federal law). Since Clark contains a similar exception, see 5

Cal. 4th, at 797, 855 P. 2d, at 760, the Ninth Circuit’s decision

not to respect Clark’s independence no doubt anew the

reasoning of Park and Fields.’

These decisions are incorrect. Punishing a state for its

generous decision to recognize exceptions to its habeas rules is

an anomalous result contrary to the letter and spirit of the

adequate and independent state grounds doctrine. See McCown

v. Callahan, 726 F. 2d 1, 3-4 (CA1 1984) (Breyer, J.). The

independent and adequate state grounds doctrine does not

require states to impose rigid procedural rules. Instead, this

doctrine guards against state rules that trap, mislead, or deceive

the defendant into failing to assert his or her federal right at the

time or in the manner which the state court later determines was

the required time or the required manner. See, e.g, Ford v.

Georgia, 498 U.S. 411, 424 (1991) (retroactive application of

new procedural rules); NAACP v. Alabama ex rel. Patterson,

357 U. S. 449, 457 (1958) (“petitioner could not fairly be

deemed to have been apprised of [the rule’s] existence”). A

more detailed analysis of the many problems with Park and

Fields is in the CJLF’s briefs supporting certiorari in those

3. The court adopted the reasoning of La Crosse v. Kernan, 211 F.3d 468

(CA9 2000) in its decision not to enforce Clark. See Morris, 229 F.3d,

at 780, n. 2. La Crosse applied Park’s reasoning to the Clark rule. See

211 F. 3d, at 474. While the La Crosse opinion was withdrawn by the

Ninth Circuit, the reinstated opinion, decided after Morris, again

declined to apply Clark. See La Crosse v. Kernan, No. 97-55085, 2001

Daily Journal D.A.R. 3023, 3024 (CA9, March 26, 2001).

i

16

cases. See generally Brief for Criminal Justice Legal Founda-

tion as Amicus Curiae in California v. Park, No. 99-1971; Brief

for Criminal Justice Legal Foundation as Amicus Curiae in

Calderon v. Fields, No. 97-1262.

Although the state has not specifically included this issue in

the questions presented, amicus suggests that the Court may

wish to consider it, either sua sponte or as “a ‘predicate to an

intelligent resolution’ of the question presented, and therefore

‘fairly included therein.’ ” Ohio v. Robinette, 519 U. S. 33, 38

(1996).

The manifestly wrong decisions in Fields and Park continue

to distort habeas law in California and create unnecessary

problems. The sooner they are overruled the better.

CONCLUSION

The petition for writ of certiorari should be granted.

May, 2001

Respectfully submitted,

CHARLES L. HOBSON

Attorney for Amicus Curiae

Criminal Justice Legal Foundation