# Amicus Curiae Brief — Woodford v. Morris

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_0833%3A4

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2001
- **Citation:** 532 U.S. 1075

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_0833%3A4. Public record. Not legal advice.