Appendix — Vasquez v. Brown

Supreme Court, U.S,

ye Lez FILED

7 | MAR 4 1992

OFFICE OF THE |

No.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1991

DANIEL VASQUEZ, Warden, and DANIEL E.

LUNGREN, Attorney General of the State

of California,

Petitioners,

Vv.

JOHN G. BROWN,

Respondent.

APPENDICES TO PETITION FOR WRIT

OF CERTIORARI

OANIEL E. LUNGREN, Attorney

General of the State of

California

GEORGE WILLIAMSON, Chief

Assistant Attorney General

GARY W. SCHONS, Senior

Assistant Attorney General

LOUIS R. HANOIAN, Supervising

Deputy Attorney General

ROBERT M. FOSTER, Supervising

Deputy Attorney General

110 West A Street, Suite 700

San Diego, California 92101-3786

Telephone: (619) 237-7852

Attorneys for Petitioners

TABLE OF CONTENTS

APPENDIX A

United States Court of Appeals

for the Ninth Circuit, Opinion A-1 - A-25

APPENDIX B

United States Court of Appeals

for the Ninth Circuit, Amendment

to Opinion B-1 - B-2

APPENDIX C

United States District Court

Central District California,

Opinion ~— C-1 - C-15

APPENDIX D

Chart: Cases In Which United

States District Courts In

California Have Stayed State

Ordered Executions In The

Absence Of A Petition For Writ

Of Habeas Corpus D-1 - D-5

APPENDIX A

A-1

FOR PUBLICATION |

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOHN G. BROWN, No. 90-56127

Petitioner-Appellee,

)

)

)

)

Vv. ) D.C. No.

) Cv-90-2815-AWT

DANIEL VASQUEZ, Warden, )

DANIEL E. LUNGREN, )

Attorney General of the )

)

)

)

State of California,

Respondents-Appellants,

OPINION

Appeal from the United States District

Court for the Central District of

California

A. Wallace Tashima, District Judge,

Presiding

Argued and Submitted August 29, 1991

Pasadena, California

Filed December 31, 1991

Before: FLETCHER, THOMPSON and LEAVY,

Circuit Judges.

Opinion by Judge Thompson

THOMPSON, Circuit Judge:

A-2

FACTUAL BACKGROUND

John G. Brown is a California state

prisoner who has been sentenced to death.

His conviction and sentence were affirmed

by the California Supreme Court. People

v. Brown, 46 Cal.3d 432, 250 Cal. Rptr.

604, 758 P.2d 1135 (1988). His petition

for a writ of certiorari was denied by the

United States Supreme Court. Brown v.

California, 489 U.S. 1059 (1989). His

petition for a writ of habeas corpus filed

with the California Supreme Court was

denied. His execution was scheduled for

June 8, 1990.

On June 1, 1990, Brown, proceeding

pro se, filed in the United States

District Court for the Central District of

California a “Request for Appointment of

Counsel in Death Sentence Case and For

Stay of Execution of Death Sentence.” In

an accompanying declaration he stated that

he was under imminent sentence of death,

F fet o 4

tat oe we | a) eed ae

a a i.)

oe

“a

A-3

that the attorney who represented him in

state court was unavailable to represent

him in his federal habeas proceeding, and

that he could not afford to retain an

attorney. He further stated: “I intend

to file & petition for writ of habeas

corpus in this Court, alleging federal

constitutional errors which entitle me to

relief from the judgment of death. I need

the assistance of counsel in preparing and

litigating the petition.”

Pursuant to its Local Rule 26.8.7

(b),*/ the district court ordered Brown's

1. Local Rule 26.8.7(b) provides,

in relevant part:

Where counsel in state court

proceedings ...is.. . not available

Or qualified to proceed, the selection

panel will designate an attorney from

the panel who will assist an indigent

petitioner in filing pro se applications

for appointment of counsel and for

temporary stay of execution. Upon

filing of this application the district

court shall issue a temporary stay of

execution and appoint counsel from the

panel of attorneys certified for

appointment. The temporary stay will

remain in effect for forty-five (45)

A-4

execution stayed for forty-five days. The

district court subsequently extended the

stay for an additional thirty days, citing

as a primary reason difficulty in finding

appointed counsel to represent Brown. On

July 30, 1990, counsel was appointed to

represent Brown. On August 10, 1990, at

appointed counsel's request and pursuant

to the Central District's Local Rule

26.8.7(c),* the district court granted an

days unless extended by the court.

2. Local Rule 26.8.7(c) states

that:

Where counsel new to the case

is appointed, upon counsel’s application

for a temporary stay of execution

accompanied by a specification of

nonfrivolous issues to be raised in the

petition, the district court shall issue

a temporary stay of execution unless no

nonfrivolous issues are presented. The

temporary stay will remain in effect for

one hundred twenty (120) days to allow

newly appointed counsel to prepare and

file the petition.

Following his appointment,

Brown's attorney satisfied the

requirements of this section by

identifying six nonfrivolous and

independent constitutional issues which

he intended to raise in the habeas

A-5

additional stay of 120 days to afford

appointed counsel time to prepare and file

Brown's habeas petition.

The state respondents moved to vacate

the stay of execution. They contended the

district court lacked jurisdiction because

Brown had not filed a petition for habeas

corpus relief, and thus, they argued,

there was no proceeding pending before the

district court on which to predicate a

stay order under 28 U.S.C. 2251.2

corpus petition. Brown v. Vasquez, 743

F. Supp. 729, 732 n. 10 (C.D. Cal.

1990).

3. This section provides:

A justice or judge of the

United Stated before whom a habeas

corpus proceeding is pending may, before

final judgment or after final judgment

of discharge, or pending appeal, stay

any proceeding against the person

detained in any State court or by or

under the authority of any state for any

matter involved in the habeas corpus

proceeding.

After the granting of such a

stay, any such proceeding in any state

court or by or under the authority of

any state shall be void. If no stay is

granted, any such proceeding shall be as

valid as if no habeas corpus proceedings

A-6

The district court denied the motion.

It held that it had jurisdiction under the

All Writs Act*’ to issue any orders

necessary to preserve its potential

jurisdiction, including a stay of

execution in anticipation of the filing of

a petition for a writ of habeas corpus.

Brown v. Vasquez, 743 F. Supp. 729, 732

(C.D. Cal. 1990). The state respondents

appeal. We affirm, although for reasons

or appeal were pending.

28 U.S.C. 2251.

4. The All Writs Act appears at 28

U.S.C. 1651 (a). It provides that, "The

Supreme Court and all courts established

by Act of Congress may issue all writs

necessary or appropriate in aid of their

respective jurisdictions and agreeable

to the usages and principles of law.”

Appellants argue that the All Writs

Act is superseded for purposes of this

case by 28 U.S.C. 2283 (the Anti-

Injunction Act), and therefore cannot

serve as the jurisdictional basis for

the district court’s action. We do not

address the merits of this claim because

we conclude that 28 U.S.C. 2251 provides

an adequate independent basis for the

district court’s exercise of

jurisdiction.

A-7

different from those stated by the

district court.

DISCUSSION

The issue presented by this appeal is

whether a district court has jurisdiction

to stay the execution of a state prisoner

in order to appoint counsel to assist the

prisoner in preparing and filing a

petition for federal habeas corpus relief.

We conclude a district court has such

jurisdiction. We have appellate

jurisdiction under 28 U.S.C. 1292 (a)(1)?.

When a death penalty prisoner has a

habeas corpus proceeding pending before a

federal district court, that court has

jurisdiction to stay the prisoner's

execution. 28 U.S.C. 2251. Appellants

5. This section provides, in

relevant part, that, “[t]he courts of

appeals shall have jurisdiction of

appeals from . . .[{i]nterlocutory orders

of the district courts of the United

States .. . granting, continuing,

modifying, refusing or dissolving

injunctions, or refusing to dissolve or

modify injunctions ... .”

A-8

contend that a “habeas corpus proceeding”

cannot be considered “pending” before a

district court under section 2251 until

something has been filed with the court

that can be interpreted as a petition for

a writ of habeas corpus. Appellants

point out that what Brown filed was not a

habeas petition, but simply a request and

declaration seeking appointment of counsel

to help him prepare a habeas petition. We

agree that what Brown filed should not be

interpreted as a petition for a writ of

6. The procedural and substantive

requirements for a petition for a writ

-Of habeas corpus are found at 28 U.S.C.

2242. This section is augmented by Rule

2 of the Rules Governing Section 2254

Cases in the United States District

Courts.

iia diaaiacataiac iar

A-9

habeas corpus.’ But this does not end the

inquiry.

The Supreme Court has recognized that

“[tjhe writ of habeas corpus is the

fundamental instrument for safeguarding

individual freedom against arbitrary and

lawless state action.” Harris v. Nelson,

394 U.S. 286, 290-91 (1969). It is, in

essence, “the first line of defense

against constitutional violations.”

Bounds v. Smith, 430 U.S. 817, 828 (1977).

Given the fundamental importance of

the writ, it is essential that it be

7. While recognizing that the ,

federal courts have a responsibility to

construe liberally pro se prisoners’

vaguely-framed pleadings as habeas

petitions where the interests of justice

demand, see e.g., Tyler v. United

States, 929 F.2d 451 (9th Cir. 1991)

(construing “Motion under 28 USC 2255”

as a petition for habeas under 28 U.S.C.

2241); Tucker v. Carlson, 925 F.2d 330

(9th Cir. 1990) (section 1983 and Bivens

action construed as habeas), what Brown

filed here was a request for counsel to

help him prepare and file a petition,

not, in itself, a petition for writ of

habeas corpus.

A-10

“administered with the initiative and

flexibility essential to insure that

miscarriages of justice within its reach

are surfaced and corrected.” Harris, 394

U.S. at 291. The Court has “consistently

rejected interpretations of the habeas

corpus statute[*} that would suffocate the

writ in stifling formalisms or hobble its

effectiveness with the manacle of arcane

and scholastic procedural requirements.”

Hensley v. Municipal Court, 411 U.S. 345,

350 (1973).

In Hensley, the Court was called upon

to determine whether a state prisoner who

had been released on his own recognizance

was “in custody” for purposes of the

federal habeas corpus statute.2/ In

8. The federal habeas corpus

statute is set forth at 28 U.S.C. 2241

to 2255.

9. In Hensley, the Court was

interpreting section 2241(c)(3) which

limits the availability of habeas corpus

relief to a prisoner who “is in custody

in violation of the Constitution or laws

ee OT ee ee

a

A-1l

holding that habeas relief is not

restricted to situations where the

petitioner is subject to present physical

confinement, the Court emphasized that

“habeas corpus is not ‘a static, narrow,

formalistic remedy,’ but one which must

retain the ‘ability to cut through

barriers of form and procedural mazes. '”

Id. at 349-50 (quoting Jones v.

Cunningham, 371 U.S. 236, 243 (1963), and

Harris, 394 U.S. at 291).

The Harris admonition to interpret

the federal habeas corpus statute with

“initiative and flexibility” is especially

relevant in the present case in light of

the Court's recent decision in McClesky v.

Zant, 111 S. Ct. 1454 (1991). In

McClesky, the Court held that the doctrine

of abuse of the writ?’ barred a prisoner

or treaties of the United States.”

10. The doctrine of abuse of the

writ “refers to a complex and evolving

body of equitable principles" which

A-12

from asserting a constitutional claim in a

subsequent federal habeas corpus

proceeding when he had not raised the

claim in his initial federal application

and could not show either good cause for

failing initially to raise the claim and

prejudice resulting from such failure, or

that fundamental miscarriage of justice

would result if the claim were not

entertained. McClesky, 111 S. Ct. at

1470. The Court also restated its

position taken in Antone v. Dugger, 465

U.S. 200, 205-06 & n. 4 (1984) (per

curiam), that a habeas petitioner will not

be excused from failing to raise a claim

in his first federal petition on the

ground that his counsel had to prepare the

first petition in haste and did not have

determine whether a habeas corpus

petitioner can bring a federal

constitutional claim in a habeas action

when he failed to assert the claim in a

prior habeas proceeding. McClesky, 111

S. Ct. at 1467.

i

' a

A-13

time to become familiar with the case.

McClesky, 111 S. Ct. at 1467.

Given the teaching of McClesky, a

prisoner applying for habeas corpus relief

in federal court must assert all possible

violations of his constitutional rights in

his initial application or run the risk of

losing what might be a viable claim. This

is a substantial burden. Compounding this

burden, the petitioner is often illiterate

Or poorly educated and yet must decipher a

complex maze of jurisprudence in order to

determine which of his constitutional

rights, if any, may have been violated.

Such a task is "difficult even for a

trained lawyer to master,” and,

understandably, is often beyond the

abilities of most prisoners. Murray v.

Giarratano, 492 U.S. 1, 28 (1989)

(Stevens, J., dissenting). It is thus not

surprising that when a prisoner attempts

to prepare his own habeas petition without

Ratti

jiu

A-14

the assistance of counsel, the product of

his efforts is often a confusing and

incomprehensible amalgam of claims which

not only fails to protect the prisoner,

but which ties up valuable court time in

the inevitable struggle to comprehend what

it is that is being alleged.’

ll. In a report of the Committee

on Habeas Corpus, a group of circuit

judges addressed the problems faced by

the judiciary in dealing with pro se for

petitions for habeas relief:

Much of the judges’ time

is spent trying to decipher

and interpret the chaotic

papers that come to them from

prison inmates. Many of the

petitioners are illiterates,

or person of limited education

who depend upon “ jail-house

lawyers” for assistance in

preparing these documents.

Not only are such

practitioners notorously

unreliable, but their work

product is often a mass of

confused and incomprehensible

mumbo- jumbo.

Application for Writs of Habeas Corpus

and Post Conviction Review of Sentences

in the United States Courts, 33 F.R.D.

364, 384 (1963). See also, Marshall w.

Krause, A Lawyer Looks at Writ-Writing,

56 Calif. L. Rev. 371, 376 (1968) (“the

LPL RRR tae

’

A-15

The Supreme Court has recognized the

inherent problems faced by prisoners, and

by the courts, when prisoners are forced

to file habeas petitions pro se. In

Johnson v. Avery, the Court held that a

state could not bar prisoners from

furnishing assistance to other prisoners

in filing habeas corpus petitions. It

recognized, however, that even with the

help of experienced prison “writ-writers,”"

petitions filed without the assistance of

an attorney are “often so unskillful as to

a burden on the courts with receive them.”

393 U.S. 483, 488 (1969). In his

concurrence, Justice Douglas argued that

the pre-petition assistance of an attorney

would greatly benefit both the prisoner

and the court system:

number of frivolous petitions filed

would be greatly reduced if prisoners

could have an objective evaluation of

their chance before filing their

petitions”).

PTY ERB

A-16

A lawyer, after examining

the prisoner's transcripts or

conducting an independent

investigation of the facts,

could immediately advise him on

a course of action. Lacking the

money to hire a lawyer, the

prisoner must spend considerable

time researching the law,

preparing the required legal

documents, and filing them.

Sometimes years pass before the

prisoner discovers what a lawyer

could have told him in several

weeks - that his case either has

or lacks merit. The prisoners

who have militantly prosecuted

frivolous actions have wasted

time they could have devoted to

preparing themselves for release

from prison. The state, by

shouldering these indigent

prisoners with the

responsibility of acting as

their own counsel, has

dissipated the taxpayers’ money

in wasted manpower and court

costs.

Id. at 494 , n. 10 (Douglas, J.,

concurring) (quoting Charles Larsen, A

Prisoner Looks at Writ-Writing, 56 Calif.

L. Rev. 343, 345-346 (1968)).

Notwithstanding the foregoing, as the

Court in McClesky reasserted, there is no

constitutional right to counsel in federal

habeas corpus proceedings, McClesky, 111

A-17

S. Ct. at 1471, citing Pennsylvania v.

Finley, 481 U.S. 551, 555 (1987), even if

the habeas petitioner may be facing a

sentence of death. Murray, 492 U.S. at

10. In his concurrence in Murray,

however, Justice Kennedy recognized that

"[tjhe complexity of our jurisprudence in

this area .. . makes it unlikely that

capital defendants will be able to file

successful petitions for collateral relief

without the assistance of persons learned

in the law.” Id. at 14 (Kennedy, J.,

concurring).

Justice Stevens dissented in Murray.

In arguing that a constitutional right to

counsel should exist in the initial stages

of a habeas corpus proceeding, he

emphasized the many obstacles faced by an

incarcerated habeas petitioner, as well as

the tremendous drain that pro se habeas

petitions place upon the judicial system:

The State already appoints

counsel to death row inmates who

A-18

succeed in filing postconviction

petitions asserting at least one

nonfrivolous claim; therefore,

the additional cost of providing

. death row inmates

competent counsel to prepare

such petitions should be

minimal. [citation omitted).

Furthermore, multiple filings

delay the conclusion of capital

litigation and exacerbate the

already serious burdens these

cases impose on the State's

judicial system and the legal

department. It seems obvious

that professional preparation of

the first postconviction

petition, by reducing successive

petitions would result in a net

benefit [to the court system].

Murray, 492 U.S. at 29-30 (Steven, J.,

dissenting) .+4/

The Central District of California's

Local Rules 26.8.7(b) and (c) address the

foregoing concerns. These rules authorize

the appointment of counsel to assist a

12. Justices Brennan, Marshall and

Blackmun joined the dissent. When

combined with Justices Kennedy and

O’Connor, who joined in the concurrence,

a total of six members of the Court took

express notice of the plight confronting

inmates attempting to challenge their

conviction by habeas corpus without the

assistance of counsel.

A-19

death penalty prisoner in preparing and

filing a habeas petition, and provide for

issuance of a stay of execution pending

this process.

The appellants do not challenge the

validity of these rules. Rather, they

argue that a prisoner who seeks the

appointment of counsel and a stay of

execution under the rules must allege some

federal constitutional violation to

provide the district court with a

necessary habeas “proceeding” to give it a

jurisdictional base to support a stay of

execution. The appellants assert it is a

minor burden at most to require a prisoner

to allege some constitutional violation.

They argue all the prisoner need do is

file something that can be interpreted ‘as

a habeas corpus petition, no matter how

inartfully it may be drawn. Thereupon,

according to the thrust of the appellant’s

argument, a long-suffering district court

A-20

through the process of reviewing the

petition and allowing amendments will

assist the prisoner in eventually coming

up with a reasonably adequate habeas

petition.

We reject this argument. The Central

District rules do not require the filing

of a habeas petition as a prerequisite to

the issuance of a stay order. Neither

does the federal habeas corpus statute.

See 28 U.S.C. 2251. Although there is

no constitutional right to the appointment

of counsel in a death penalty habeas

proceeding, this does not preclude a

district court from appointing counsel in

such a case. Cf. Murray, 492 U.S. at 10,

n. 5 (State of Virginia not

constitutionally required to appoint

counsel for a death penalty habeas

petitioner, but its courts have statutory

authority to do so). If a district court

can appoint counsel to represent a death

A-21

penalty habeas petitioner, surely it can

issue a stay of execution when necessary

to make the appointment and to allow

appointed counsel reasonable time to do

his job. Otherwise, the prisoner could be

executed before appointed counsel could be

found or before that counsel could

undertake the task for which he was

appointed. The habeas process need not

tolerate the possibility of such a

perverse absurdity.

We conclude that the underlying

purpose of the writ of habeas corpus

requires us to view the application for

the appointment of counsel to assist in

the preparation of a death penalty

prisoner's habeas corpus petition as an

integral part of the habeas corpus process

under section 2251. Viewed in this

manner, a habeas corpus proceeding is

pending before a federal district court

when such an application is filed.

SS nena a

A-22

The appellants cite to Rule 3 of the

Federal Rules of Civil Procedure which

provides that "[a]) civil action is

commenced by filing a complaint in the

court.” They argue by analogy that a

habeas corpus proceeding under section

2251 cannot “commence” until something

which can be interpreted as a petition for

habeas corpus relief is filed. We

disagree.

While it is true that a habeas corpus

proceeding is civil in nature, see, e.g.,

Kurtz v. Moffitt, 115 U.S. 487, 494

(1885), it is equally true that such a

proceeding is dramatically different from

any other type of civil action. As the

Supreme Court has stated, habeas corpus

proceedings are of “"’ fundamental

importance .. . in our constitutional

scheme’ because they directly protect our

most valued rights.” Bounds, 430 U.S. at

827 (quoting Johnson, 394 U.S. at 485).

A-23

As @ result, courts are not bound to

systematically apply traditional rules

governing civil proceedings when to do so

would be inconsistent with the overriding

purpose of the federal habeas corpus

statute.

Appellant's assertion that the Anti-

Injunctions Act prevents the district

court from ordering a stay of Brown’s

execution is also without merit. The

13. Rule 11 of the Rules Governing

Section 2254 Causes in United States

District Courts, enacted by Congress in

1977, recognizes that the Civil Rules do

not necessarily control habeas corpus

proceedings. Rather, the Civil Rules,

“to the extent that they are not

inconsistent with [the Habeas Corpus

Rules], may be applied, when

appropriate, to [habeas corpus]

petitions .: » 2

The Advisory Committee notes

following Rule 11 further Clarify that,

“The court does not have to rigidly

apply rules which would be inconsistent

or inequitable in the overall framework

of habeas corpus. Rule 11 merely

recognizes and affirms their

discretionary power to use their

judgment in promoting the ends of

justice.“ See also Harris, 394 U.S. at

299.

A-24

Anti-Injunction Act provides that, “[a]

court of the United States may not grant

an injunction to stay any proceeding in a

State court except as expressly authorized

by Act of Congress, or where necessary in

éid of its jurisdiction, or to protect or

effectuate its judgments.” The federal

habeas corpus statute, however, clearly

constitutes an "expressly authorized”

exception to the Act. Mitchum v. Foster,

407 U.S. 225, 234-35 (1972). Asa result,

the Anti-Injunction Act does not prevent a

district court from staying a state court

proceeding pursuant to 28 U.S.C. 2251.

CONCLUSION

We hold that the application for the

appointment of counsel to assist a death

penalty prisoner in preparing a petition

for federal habeas corpus relief, and for

€ stay of execution, filed pursuant to the

Central District of California Local Rules

26.8.7(b) and (c), constitutes part of a

A-25

“habeas corpus proceeding” as set forth in

28 U.S.C. 2251. As such, the district

court had jurisdiction to stay Brown's

execution pending the appointment of

counsel and the filing of a habeas

petition.

AFFIRMED.

APPENDIX B

B-1

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOHN G. BROWN, No. 90-56127

Petitioner-Appellee,

)

)

)

)

Vv. ) D.C. No.

) CV-90-2815-AWT

DANIEL VASQUEZ, Warden, )

DANIEL E. LUNGREN, )

Attorney General of the )

)

)

)

State of California,

ORDER AND

AMENDED OPINION

R nd - >

Appeal from the United States District

Court for the Central District of

California

A. Wallace Tashima, District Judge,

Presiding

Argued and Submitted August 29, 1991

Pasadena, California

Filed December 31, 1991

Amended February 19, 1992

Before: Betty B. Fletcher, David R.

Thompson and Edward Leavy,

Circuit Judges.

Opinion by Judge Thompson

ey tha nike) PW OP ae Oi SBE Saldp

ee eee)

B-2

ORDER

The opinion filed December 31, 1991

is amended as follows:

At page 17436 of the slip opinion,

seventh line from the top, immediately

after the sentence that ends “in such

case.” and before the cite “Cf. Murray .

-" the following is inserted: See 18

U.S.C. § 3006A (a)(2)(B) (United States

district court may provide counsel to

persons seeking habeas relief where “the

interests of justice so require”);

The signal preceding the cite to

Murray is changed from Cf. to cf.

The mandate shall now issue.

APPENDIX C

C-1

John G. BROWN, Petitioner,

Vv.

ae Sage thes athe er paca

Daniel VASQUEZ, Warden of San

Quentin State Prison,

Respondent.

No. CV 90-2815 AWT

United States District Court,

C.D. California.

Sept. 4, 1990.

MEMORANDUM ORDER ON MOTION TO

VACATE STAY OF EXECUTION

TASHIMA, District Judge.

BACKGROUND AND

PROCEDURAL SUMMARY

This is a death penalty "habeas

corpus” case. Petitioner was convicted of

murder of a peace officer in California

state court and was sentenced to death.

The conviction and sentence have been

affirmed on appeal. People v. Brown, 46

Cal.3d 432, 250 Cal.Rptr. 604, 758 P.2d

1135 (1988), cert denied, 489 U.S. 1059,

109 S.Ct 1329, 103 L.Ed.2d 597 (1989). On

March 14, 1990, the California Supreme

C-2

Court denied petitioner's petition for

writ of habeas corpus. The Orange County

Superior Court then set petitioner's

a! BARA RR, Ri 1 ad ne Hb cor ea

execution date for June 8, 1990.

On June 1, 1990, acting pro se,

petitioner filed a “Request for

Appointment of Counsel in Death Sentence

Case and For Stay of Execution of Death

Sentence.” This “Request” was accompanied

by petitioner’s declaration in which he

verifies that he is under imminent

sentence of death, that the attorney who

represented him in state court is

unavailable to represent him in his

federal habeas proceedings and that he

cannot afford to retain an attorney. The

declaration further states: “I intend to

file a petition for writ of habeas corpus

in this Court, alleging federal

constitutional errors which entitle me to

relief from the judgment of death. I need

=

C-3

the assistance of counsel in preparing and

litigating the petition.”

On June 1, the court issued an order

staying execution of the sentence for a

45-day period, pursuant to Local Rule 26.-

8.7(b) (the 45-day stay).4/ At the time

the 45-day stay was issued, no other

pleading had been filed by petitioner.

Shortly thereafter, on June 21,

respondent, who is the warden of San

Quentin Prison, noticed a motion to vacate

the stay of execution. On July 7, the 45-

day stay was extended for an additional 30

1. Local Rule 26.8.7(b) provides:

Where counsel in state court

proceedings ... i8... not

available or qualified to proceed, the

selection panel will designate an

attorney from the panel who will assist

an indigent petitioner in filing pro se

applications for appointment of counsel

and for temporary stay of execution.

Upon the filing of this application the

district court shall issue a temporary

stay of execution and appoint counsel

from the panel of attorneys certified

for appointment. The temporary stay

will remain in effect for forty-five

(45) days unless extended by the court.

a aaa ait ealiaaias

C-4

days, primarily because the court had not

yet secured qualified counsel for

appointment. The hearing date of

respondent's motion also was continued.

Finally, on July 30, the court was able to

appoint counsel to represent petitioner.

On August 8, petitioner, through appointed

counsel, filed his opposition to

respondent's motion to vacate the stay of

execution and also applied for the 120-

day stay under Local Rule 26.8.7(c) (the

120-day stay).4/ The 120-day stay was

granted on August 10 and remains in

effect. Respondent’s motion to vacate the

2. Local Rule 26.8.7(c) provides,

in relevant part:

Where counsel new to the case

is appointed, upon counsel's application

for a temporary stay of execution

accompanied by a specification of

nonfrivolous issues to be raised in the

petition, the district court shall issue

a temporary stay of execution unless no

nonfrivolous issues are presented. The

temporary stay will remain in effect for

one hundred twenty (120) days to allow

newly appointed counsel to prepare and

file the petition.

C-5

Stay of execution was heard and orally

| denied on August 13. Because there is

little case law on the issue tendered by

this motion, the court here sets forth an

explanation of the reasons for its ruling

denying respondent's motion.»

As the above summary of the

proceedings to date indicates, petitioner

has not yet filed a petition for writ of

habeas corpus--certainly not any pleading

denominated as such. Based on this

procedural posture, respondent contends

3. The Local Rules under which

both the 45-day stay and the 120-day

stay were issued are part of Local Rule

26.8, which is entitled “Special

Requirements for Habeas Corpus Petitions

Involving the Death Penalty.” This rule

is, essentially, a "uniform" rule,

having been adopted by all of the

district courts in California with only

minor variations. See E.D.Cal. Local

Rule 191; N.D.Cal Local Rule 295;

S.D.Cal. Local Rule 295-2. The purpose

of this rule, as even a cursory review

will disclose, is to permit the orderly

hearing and determination of capital

habeas cases and to avoid, to the extent

possible, last-minute stays of execution

and midnight telephone calls.

C-6

that this court has no jurisdiction to

issue a stay of execution. According to

j

:

respondent, a federal district court

acquires jurisdiction to issue a stay of

execution only after a habeas petition is

filed. See 28 U.S.C. § 2251. Thus, the

issue is whether or not a district court

has jurisdiction to issue a stay of

execution before a habeas petition is

filed, on the basis of a request for

appointment of counsel and the pro se

representation that petitioner intends to

file a habeas petition alleging non-

frivolous federal constitutional error.+!

Petitioner has advanced a number of

grounds justifying issuance of a stay

4. The alleged federal

constitutional errors which petitioner

intends to present are non-frivolous in

the sense that petitioner states that

such errors “entitle me to relief from

the judgment of death.”

C-7

prior to the filing of a habeas petition;

however, only one requires discussion.»

DISCUSSION”

5. However, because respondent

cites it as controlling Circuit

authority, a word must be said about

Reese v. Teets, 248 F.2d 147 (9th Cir.

1957). Respondent relies on it for the

proposition that a district court “has

no power to stay the execution of

judgment of a state court save as an

incident to the exercise of its

jurisdiction in habeas corpus.” Id. at

149. The court agrees with petitioner

that the reason why Reese was decided

the way it was no longer obtains;

therefore, it does not control in the

present circumstances. Reese's no

jurisdiction holding was based on then-

controlling case law that a state

prisoner was required to petition for

certiorari from the denial of his state

habeas petition before seeking federal

habeas relief. Id. at 148. See Darr v.

Burford, 339 U.S. 200, 216-17. 70 S.Ct

587, 596-97, 94 L.Ed 761, (1949). That

holding of Darr was subsequently

Overruled, some years after Reese. See

Fay v. Noia, 372 U:S. 391, 435, 83

S.Ct. 822, 847, 9 L.Ed.2d 837 (1963).

Thus, the exhaustion requirement on

which Reese rested is no longer good law

and Reese was an exhaustion case. It

does not discuss at all the All writs

Act.

6. The discussion that follows

applies equally to both the 45-day stay

and the 120-day stay. An argument could

be made that the motion is now moot with

ax <>?

C-8

The All Writs Act provides:

The Supreme Court and all courts

established by Act of Congress may issue

all writs necessary or appropriate in aid

of their respective jurisdictions and

agreeable to the usages and principles of

law.

28 U.S.C. § 1651(a). In the leading case

of FTC v. Dean Foods Co., 384 U.S. 597, 86

S.Ct. 1738, 16 L.Ed.2d 802 (1965), the

Supreme Court held that the All Writs Act

authorized a court of appeals to issue an

injunction against a merger in order to

preserve the possibility of reviewing the

respect to the former stay because it

has been superseded by the latter.

However, the 45-day period is so short

that, as in this case, a motion to

vacate that stay could not be heard and

determined before the stay expired or

was superseded. Thus, under the well-

established doctrine of “capable of

repetition yet evading review,” see,

e.g. Murphy v. Hunt, 455 U.S. 478, 482,

102 S.Ct. 1181, 1183, 71 L.Ed.2d 353

(1982) (per curiam), the court holds

that respondent's motion is not moot as

to the 45-day stay granted under Local

Rule 26.8.7(b).

C-3

decision of the Federal Trade Commission

(FTC) that the merger would violate the

antitrust laws even before a petition for

review was filed. The Court cited

numerous cases for the proposition that

the power “extends to the potential

jurisdiction of the appellate court where

an appeal is not then pending but may

later be perfected.” Id. at 603, 86 S.Ct.

at 1742.4” Respondent seeks to distinguish

Dean Foods on the ground that once an

action reviewable by the appellate court

starts, "the exclusive jurisdiction of the

court of appeals to review the final

Outcome also starts.” On the other hand,

respondent contends, a district court’s

jurisdiction does not commence until an

action is filed in that court. Thus,

7. See also in Re Grand Jury

Proceedings United States, 626 F.2d

1051, 1059 (lst Cir.1980)(writ issued to

preserve evidence on appeal, although

notice of appeal not yet filed, in aid

of potential jurisdiction).

C-10

potential jurisdiction can only be

preserved by an appellate court. The

agreement is mistaken.

Under the Federal Trade Commission

Act, 15 U.S.C. § 45(c), a petition for

review of an order of the FTC, filed with

a court of appeals, is the initial entry

of such an action into the Article III

court system. Likewise, a habeas petition

to review a state court conviction, filed

with a district court, is also the initial

entry of such an action into the Article

III court system. Thus, the analogy

between Dean Foods and a habeas proceeding

is quite compelling. The procedural

posture in both Dean Foods and the case at

bench are identical: The court issuing

the stay was the initial federal court

with the potential jurisdiction to hear

the matter on the merits and no petition

initiating the action had yet been filed.

Dean Foods expressly hold that the

C-11

authority of an appellate court “is not

confined to the issuance of writs in aid

of a jurisdiction already acquired by

appeal but extends to those cases which

are within its appellate jurisdiction

although no appeal has been perfected.”

384 U.S. at 603-04, 86 S.Ct. at 1742,

quoting Roche v. Evaporated Milk Ass'n,

319 U.S. 21, 63 S.Ct. 938, 87 L.Ed. 1185

(1943). In short Dean Foods authorizes

issuance of a writ under the All Writs Act

if it is necessary to preserve a court's

potential jurisdiction .*

Respondent's argument that specific

non-frivolous constitutional error must be

alleged in the initial pleading in order

to make clear that such potential

8. It is somewhat ironic that

respondent should take the opposing

position in this case. California

itself has succeeded in the Supreme

Court in obtaining a stay before a

petition for writ of certiorari was

filed. See California v. Velasquez, 445

U.S. 1301, 100 S.Ct. 1333, 63 L.Ed.2d

595 (1980) (Rhenguist, J., in chambers).

C-12

jurisdiction will exist is an argument

going to the merits.2’ Moreover, the cases

impose no such requirement. For example,

in I.T.T. Community Dev. Corp. v. Barton,

569 F.2d 1351, 1359 n. 19 (5th Cir. 1978),

the court held: “When potential

jurisdiction exists, a federal court may

issue status quo orders to ensure that

once its jurisdiction is shown to exist,

the court will be in a position to

exercise it.” At this stage, petitioner

has sufficiently shown that potential

habeas jurisdiction exists: He has stated

under oath, pro se, that his conviction

and sentence of death are final; that he

9. Respondent concedes that, “The

All Writs Act may be used to preserve

direct appellate jurisdiction,” but

contend that it may not be used by a

district court “to create habeas corpus

jurisdiction in the absence of a

specific constitutional issue.” This

distinction is contrary to the plain

wording of the statuté. The All writs

applies to “all courts established by

Act of Congress” (emphasis added), not

just to appellate courts.

C-13

has exhausted available state remedies;

and that “federal constitutional errors

which entitle [him) to relief from the

judgment of death” can be alleged.42’ to

expect more from a pro se petitioner who

is entitled to, but who has not been

furnished with, appointed counsel may

itself amount to the denial of a

constitutional right.

Finally, respondent relies on

Demosthenes v. Baal, ___ U.S. , 110

S.Ct. 2223, 109 L.Ed.2d 762 (1990) (per

curiam), as recent, controlling authority

which requires a habeas petition to be ;

filed as a prerequisite to the issuance of

& stay. They misconstrue the case. In

fact, in Demosthenes, a petition had been

10. The issue is not present with

respect to the 120-day stay. As

required by Local Rule 26.8.7(c), in his

application for that stay, counsel made

& preliminary specification of non-

frivolous constitutional issues which

could be raised. Counsel has specified

six separate issues which are summarized

in three pages.

C-14

filed by the prisoner's parents acting as

his “next friends.” The narrow holding of

this case, in vacating the stay, is that

the requirement for next friend standing,

as recently set forth in Whitmore v.

Arkansas, U.S. e €a@80 8.Ct.

1717, 109 L.Ed.2d 135 (1990), had not been

met. The Court did state, as quoted by

respondent,

federal courts are authorized by

the federal habeas statutes to

interfere with the course of

state proceedings only in

specified circumstances. Before

granting a stay, therefore,

federal courts must make certain

that an adequate basis exists

for the exercise of federal

power .4

Demosthenes, 110 S.Ct. at 2226. This is

petitioner's first federal petition after

exhaustion of state remedies. He

represented, pro se, that he was able to

11. Demosthenes, like Reese, see

footnote 5, supra, did not, since it had

no occasion to do so, address a district

court’s power to issue a stay under the

All Writs Act.

C-15

allege federal constitutional error. His

newly-appointed counsel has subsequently

filed a three-page specification of non-

frivolous constitutional issues which he

believes could be raised in the

petition.” Thus, this is a proper case

for a habeas proceeding. Petitioner has

adequately demonstrated that at least the

potential for habeas jurisdiction exists.

The All Writs Act, as construed in Dean

Foods, furnishes “an adequate basis” for

the granting of both the 45-day stay and

the 120-day stay in order to preserve this

court’s potential habeas jurisdiction.

IT IS ORDERED that respondent's

motion to vacate the stay of execution of

the sentence of death is DENIED.

12. It may be noted that the

California Supreme Court did find error

and, in one instance, it was uncertain

whether the error was federal

constitutional error; however, it

further found that the error was

harmless. People v. Brown, 46 Cal.3d at

446-48, 250 Cal.Rptr. 604, 758 P.2d

4338.

APPENDIX D

CHART ONE

CASES IN WHICH UNITED STATES DISTRICT

COURTS IN CALIFORNIA HAVE STAYED STATE

ORDERED EXECUTIONS IN THE ABSENCE OF A

PETITION FOR WRIT OF HABEAS CORPUS

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