Amicus Curiae Brief — Vasquez v. Brown

x 91-1425

“S

—

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IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1991

DANIEL VASQUEZ,

Warden, San Quentin State Prison,

Petitioner,

VS.

JOHN G. BROWN,

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

Criminal Justice Legal Fdn.

2131 L Street (95816)

Post Office Box 1199

Sacramento, California 95812

Telephone: (916) 446-0345

Attorney for Amicus Curiae

Criminal Justice Legal Foundation

er ae vr nen re tah ee 0 tbs

QUESTION PRESENTED

Does a federal district court have jurisdiction to stay the

execution of a state death penalty judgment prior to the

filing of a habeas corpus petition?

IN THE

Supreme Court of the United States

OCTOBER TERM, 1991

DANIEL VASQUEZ,

Warden, San Quentin State Prison,

Petitioner,

US.

JOHN G. BROWN,

Respondent.

MOTION OF AMICUS CURIAE FOR LEAVE

TO FILE BRIEF IN SUPPORT OF THE PETITION

FOR WRIT OF CERTIORARI

Pursuant to Supreme Court Rule 37.2, the Criminal

Justice Legal Foundation respectfully moves for leave to

file the accompanying brief amicus curiae in support of the

petition in the above captioned case. Counsel for petition-

er has consented, but counsel for respondent has refused

consent.

In the accompanying brief, amicus argues that the

Anti-Injunction Act prohibits stays of execution of state

criminal judgments except as authorized by 28 U. S. C.

§ 2251. That section only authorizes a stay when habeas

corpus proceedings are “pending.” Proceedings are

pending only after the petition is filed.

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

|

IV

affects the public interest. CJLF seeks to bring the due

process protection of the accused into balance with the

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

reliable determination of guilt and swift execution of

punishment.

The federal district courts in California have needlessly

delayed enforcement of the state’s death penalty, reducing

its deterrent effect. The pre-filing stay of execution is one

tool that the district courts have used for inexcusable

delays. See App. Pet. Cert., Appendix D. Those delays

are contrary to the rights of victims and society which

CJLF was formed to advance.

For the foregoing reasons, amicus requests leave to file

its brief.

April, 1992

Respectfully submitted,

KENT S. SCHEIDEGGER

Attorney for Amicus Curiae

Criminal Justice Legal Foundation

1) mw

ee

TABLE OF CONTENTS

Question presented ... 1... ccc c cece essences i

Motion for lenve 00 Tile... . we ccc cece wenn: ill

Tee OE ID ng vc a ec bce Tees vil

PRONE GIN COBEN on 6 kc ce cee seer eee res ]

Summary of facts and case... .......-.---00 06: l

SummanOry OF AUMBMNONE ow 55 5 55 ks cs cue ween 2

SO PPT ee CTE eee ee ee ey 2

I

Section 2251 is the sole authority for staying a state

SUNN kc kk vce et web eke ewes ele eee 3

A. The Anti-Injunction Act ............... 3

ee) YS 8 ee ere e 7

b. SES ve wa ssn cee ecto eon 7

2. Fepeeene Gowit GUNS... 5 0 0 6 ees 8

il

The application for stay and counsel cannot be

"Geemied 00 UG BR OOTRIOR «. wk 5 eke cee ce es 9

III

A proceeding is “pending” under § 2251 when the

petition is filed and not before .............. 13

ee fC PERT EREeee 14

. FERPORR CORPUS CHORE ow ds owes 15

vi

IV |

PUOUIIORE GOUOTRALIVES CRIME ow oc ee a ees 18 |

V

Demosthenes v. Baal accurately summarizes the

ee eee eee Teer 20

| PRPS URE ORT Ta ee Tee eee 20

Vii

TABLE OF AUTHORITIES

Cases

Amalgamated Clothing Workers of America v.

Richman Bros., 348 U. S. 511, 99 L. Ed. 600,

TS SB. Ce GBT) 5 cc eee teres ecess 4

Antone v. Dugger, 465 U. S. 200, 79 L. Ed. 2d 147,

104.S. Ct. 962 (19G4) 2. ewer ee eees 19

Atlantic Coast Line R. Co. v. Brotherhood of

Locomotive Eng’rs, 398 U. S. 281, 26 L. Ed. 2d 234,

eee Ry Ti oe eee eee ee 4, 18

Baldwin County Welcome Center v. Brown,

466 U. S. 147, 80 L. Ed. 2d 196,

104 S. Ce. 1723 (19G4) .. ww cee wees 10, 11, 15, 19

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

403 S. Ce BIER CEES) 2 ne ce sewn ees 13, 15, 16

Bounds v. Smith, 430 U. S. 817, 52 L. Ed. 2d 72,

97S. CU; MADE CIGTT) . ww ec cee ees 15, 16

Brown v. Allen, 344 U. S. 443, 97 L. Ed. 469,

(ce eee et. ee ee ee ee 12

Brown v. California, 489 U. S. 1059, 103 L. Ed. 2d 597,

M09 S. Co. EREP CTIRR) «nn wv cece cesiws ]

Brown v. Vasquez, 743 F. Supp. 729

(eae 8. ree eee ee 2, 4, 8

Brown v. Vasquez, 952 F. 2d 1164

(CAD 1999)... nn cece e renee 2, 3, 15, 16, 18, 19

California v. Velasquez, 445 U. S. 1301,

63 L. Ed. 2d 595, 100 S. Ct. 1333 (1980) ........ 8

Coleman v. Thompson, 115 L. Ed. 2d 640,

111 S. Ct. 2546 (1991)

viii

Continental Illinois National Bank v. Chicago,

R. I. & P. R. Co., 294 U. S. 648, 79 L. Ed. 1110,

I a hs here Rie eo oe Fae ae 8

Demosthenes v. Baal, 109 L. Ed. 2d 762,

i ee ees Re er Se 2 7, kame

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

cee St Se 3 | re ee 15, 17

Ex parte Kearney, 7 Wheat. (20 U. S.) 38,

EP ee 2: ee 18 |

Fay v. Noia, 372 U. S. 391, 9 L. Ed. 2d 837,

a OEE vine ak din eh Pe ened 2 ee 18

Frazier v. Heebe, 482 U. S. 641, 96 L. Ed. 2d 557,

oo ge eg a a ee ee ree 13

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

16 L. Ed. 2d 802, 86 S. Ct. 1738 (1966) ....... 7,8

Hallstrom v. Tillamook County, 493 U. S. 20,

107 L. Ed. 2d 237, 110 S. Ct. 304 (1989) ....... 13

Hill v. Lockhart, 474 U. S. 52, 88 L. Ed. 2d 203,

a ee ee ere eer 12

Hill v. Martin, 296 U. S. 393, 80 L. Ed. 293,

eo es Ce ale Oe WATO ea 3

Holiday v. Johnston, 313 U. S. 342, 85 L. Ed. 1392,

oe ee eee ee ere 12

Horton v. California, 110 L. Ed. 2d 112, |

Oe Me ee a ee 6 |

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

Se Oe EE chee eek eee sees ces 16

In re Connaway, 178 U. S. 421, 44 L. Ed. 1134,

ge ee ee ee ee 14

—— Sa

ix

Juidice v. Vail, 430 U. S. 327, 51 L. Ed. 2d 376,

ie he A 5. a RE ere 3

Kline v. Burke Construction Co., 260 U. S. 226,

7h Me ee We ae ae et <r e 5

Lewis v. Jeffers, 111 L. Ed. 2d 606,

oe Be eee eee 15, 17

Looney v. Eastern Texas R. Co., 247 U. S. 214,

62 L. Ed. 1084, 38 S. Ct. 460 (1918) ........... 5

McCleskey v. Zant, 113 L. Ed. 2d 517,

hg Re OE) | 19

Parsons Steel, Inc. v. First Alabama Bank,

474 U. S. 518, 88 L. Ed. 2d 877,

oe A | a ae 5

People v. Brown, 46 Cal. 3d 432, 250 Cal. Rptr. 604,

pe Fe P| ee re ]

People v. Gonzalez, 51 Cal. 3d 1179, 276 Cal. Rptr. 62,

a ea 18

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

ee a a ar i9

Ross v. Moffitt, 417 U. S. 600, 41 L. Ed. 2d 341,

94S. Ct. 2437 (1974) ....... eee 16

Southern R. Co. v. Painter, 314 U. S. 155,

SO L. Ba. 116, 62 S. Ct. 154. (1941)... ....... . 5

Studebaker Corp. v. Gittlin, 360 F. 2d 692

Se MN ed ai hd we eek ee ww aw oe ee eS 10

Sumner v. Mata, 455 U. S. 591, 71 L. Ed. 2d 480,

ee et ar 15

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

Oe Be SREP ove ec ees en ee Ved ees 17

Toucey v. New York Life Ins. Co., 314 U. S. 118,

1%. © Fs eee 0. eer 5

Vendo Co. v. Lektro-Vend Corp., 433 U. S. 623,

53 L. Ed. 2d 1009, 97 S. Ct. 2881 (1977) ...... 5, 6

Whitmore v. Arkansas, 109 L. Ed. 2d 135,

RO Ws Se BURY COOMED. ban REM RN ONE W seed oes 12

Whitney Nat. Bank v. Bank of New Orleans &

Trust Co., 379 U. S. 411, 13 L. Ed. 2d 386,

oe Oe I bss hs vk oe we ew ls ee 8

Younger v. Harris, 401 U. S. 37, 27 L. Ed. 2d 669,

oe Ree | ol) eee wer err er ree rere mt

United States Statutes

Be Gh ae as ES Ck AA cane kaccsceess 19

ee ee eae he ek eae eee en 8

Re ee Beer ere aera ge p a

ee ee ED rk Rea ec Ss be es 8

+ a aa gre ae ee rer a ena 11

ee ee ae Es Se bea eos Vek ea dees s 12

oe oe ee aaah acer eer es eh 17

0 ote be ae ee ae ee are ye

ees i an es 8 ee A A eS 3

Te 5. GO Sa ED) bs 6 45 eS 19

Pub. L. No. 80-773, 62 Stat. 961-962, 966 (1948) .... 9

Pub. L. No. 94-426 § 1, 90 Stat. 1334 (1976) ...... 11

California Statutes

eB ie eee See ee ee eee 18

Gi PND SUD He BOE 5c ke ea sbe ene Ne 16

xi

Federal Rules of Court

Federal Rules of Civil Procedure, Rule 3 ... 10, 15, 16

Rule S ..... 11, 12

Mule 12 ....... 12

Rules Governing Section 2254 Cases in the United

States District Courts, Rule 2 .......... 11, 12, 17

gg Peres eres 17

8 reer r ere eee 16

ON SUE TRE TE 0k 6 a ko ke ec kee 18

California Rules of Court

Supreme Court Policies Regarding Cases Arising from

Judgments of Death, Deering’s Cal. Codes, 2 Rules of

Court 202-260 (199E SUMR.) . ww... ccc eee 16, 18

Treatises

J. Liebman, Federal Habeas Corpus Practice and

PE I kk oe al 92k os a's Sees Ae la, S2

J. Moore & J. Lucas, Moore’s Federal Practice

poo. Si eee eee Ce ET ERC REGTEEE 14

Miscellaneous

Advisory Committee Note to Rule 4 of the Rules

Governing Section 2254 Cases in the United States

i OT TEER TEE CR 12, 17

L. Powell, et al., Ad Hoc Committee on Federal Habeas

Corpus in Capital Cases: Committee Report and

er eee 17, 19

Revision Note to 28 U. S. C. 2283 (1988 ed.) ...... 5

IN THE

Supreme Court of the Wnited States

OCTOBER TERM, 1991

DANIEL VASQUEZ,

Warden, San Quentin State Prison,

Petitioner,

VS.

JOHN G. BROWN,

Respondent.

BRIEF AMICUS CURIAE OF THE

CRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF THE PETITION

FOR WRIT OF CERTIORARI

SUMMARY OF FACTS AND CASE

In June 1980, nearly 12 years ago, John G. Brown fired

on police officers who were trying to arrest him on a

bench warrant. He killed Officer Reed, gravely wounded

Officer Overly, seriously wounded Officer Henninger, shot

a private citizen named Terezia between the eyes, causing

permanent and grave injury, and shot another citizen,

named McKinney, in the leg. People v. Brown, 46 Cal. 3d

432, 440, 758 P. 2d 1135 (1988). Brown was convicted and

sentenced to death, and the California Supreme Court

affirmed on August 25, 1988. /d., at 463. This Court

denied certiorari six months later. Brown v. California,

489 U. S. 1059 (1989).

On March 14, 1990, the California Supreme Court

denied state habeas. On June 1, 1990, eighty days later,

Brown filed in federal district court a request for counsel

and for stay of execution. The request stated that Brown

intended to allege federal constitutional errors, but it did

not state any factual basis whatever for any claim.

Pursuant to its local rule, the District Court issued a 45-

day stay. It subsequently extended the stay and rejected

the Attorney General’s assertion that it had no jurisdiction

to issue stays before the habeas petition is filed. Brown v.

Vasquez, 743 F. Supp. 729 (C.D. Cal. 1990). The Ninth

Circuit affirmed, 952 F. 2d 1164 (1991), but stayed its

mandate sua sponte on January 22, 1992. The Attorney

General has filed a petition for writ of certiorari.

SUMMARY OF ARGUMENT

The Anti-Injunction Act is a strict prohibition of |

federal interference with state court proceedings, subject

only to a few narrowly construed exceptions. No excep- |

tion other than 28 U.S.C. § 2251 applies to habeas |

corpus.

A case is not “pending” within the meaning of section

2251 until a petition is filed. A document which does not

meet the minimal showing required by statute and rule

cannot be “deemed” to be a petition.

Although not essential to a jurisdictional analysis, it is

worth noting that practical alternatives to pre-filing stays

exist. Potential petitioners can apply for counsel immedi-

ately upon exhaustion of state remedies. Prompt applica-

tion will provide counsel sufficient time to place all

exhausted claims in petition form and obtain a stay.

ARGUMENT

The two courts below held that jurisdiction existed to

Stay the execution, but they took very different paths to

that conclusion. The District Court found that it had

authority to issue a stay independently of the habeas stay

provision, 28 U. S. C. § 2251, basing its decision on the

All-Writs Act, 28 U. S.C. § 1651(a). Brown v. Vasquez,

743 F. Supp. 729, 731 (C.D. Cal. 1990). The District

ne

Court does not even mention the Anti-Injunction Act, 28

U. S. C. § 2283.

Apparently recognizing the flaw in the District Court’s

position, the Court of Appeals instead construed section

2251 to authorize a stay before a petition is filed. The

Court of Appeals notes, correctly, that section 2251 is an

exception to the Anti-Injunction Act. 952 F. 2d, at 1169.

Neither the state nor amicus has ever said it was not. The

sole question on this approach is whether section 2251

applies prior to the filing of a petition.

Part I of this brief addresses the District Court’s theory

that power to stay exists independently of section 2251.

Part II examines Brown’s contention that papers filed

prior to the actual petition can be “deemed” to be a

petition for the purpose of issuing a stay. Part III exam-

ines the Court of Appeals’ theory that section 2251

authorizes pre-filing stays.

I. Section 2251 is the sole authority for

staying a state execution.

A. The Anti-Injunction Act.

“A court of the United States may not grant an

injunction to stay proceedings in a State court except as

expressly authorized by Act of Congress, or where neces-

sary in aid of its jurisdiction, or to protect or effectuate its

judgments.” 28 U.S. C. § 2283. Execution of judgment

is a state court proceeding within the meaning of this

section. Hill v. Martin, 296 U. S. 393, 403 (1935).'

This Congressional command is fundamentally differ-

ent from judicially created doctrines of abstention, such as

Younger v. Harris, 401 U. S. 37 (1971). “This is not a

statute conveying a broad general policy for appropriate

ad hoc application. Legislative policy is here expressed in

1. Hill is a civil case, but the principles underlying the Anti-Injunction Act

apply with greater, not lesser, force in criminal cases. See Juidice v. Vail,

430 U. S. 327, 335 (1977).

a clear-cut prohibition qualified only by specifically defined

exceptions.” Amalgamated Clothing Workers of America v.

Richman Bros., 348 U. S. 511, 515-516 (1955) (emphasis

added).

This Court has strictly enforced the Act and narrowly

construed the exceptions. “On its face, the present Act is

an absolute prohibition against enjoining state court

proceedings, unless the injunction falls within one of three

specifically defined exceptions.” Atlantic Coast Line R. Co.

v. Brotherhood of Locomotive Eng’rs, 398 U. S. 281, 286

(1970) (emphasis added).

In Atlantic Coast Line, the respondents “intimated that

the Act only establishes a ‘principle of comity,’ not a

binding rule on the power of the federal courts.” Jbid.

The Court emphatically rejected that contention and held

“that any injunction against state court proceedings

otherwise proper under general equitable principles

must be based on one of the specific statutory

exceptions to § 2283 if it is to be upheld. More-

over since the statutory prohibition against such

injunctions in part rests on the fundamental consti-

tutional independence of the States and their

courts, the exceptions should not be enlarged by loose

statutory construction.” Id., at 287 (emphasis

added).

The essence of the District Court’s opinion is that a

federal court can stay state proceedings “if it is necessary

to preserve [the federal] court’s potential jurisdiction.” 743

F. Supp., at 317 (emphasis added). There is no such

exception to the Anti-Injunction Act.

The page limit on this brief does not permit an v

extended discussion of the history of the Anti-Injunction

Act. One is contained in our brief in the Court of

Appeals. Briefly, however, there are only three exceptions

in the Act. They are (1) exceptions expressly created by

Congress, (2) injunctions “in aid of [the federal court’s]

jurisdiction,” and (3) injunctions “to protect or effectuate

its judgments.”

Di irceaeeeemnmmaeaaimiiiiiiiieii. |

The express exception is, of course, 28 U. S. C. § 2251,

which is discussed in part III, post. The third exception is

clearly inapplicable, because there is no judgment to

protect or effectuate.”

This leaves the “aid of jurisdiction” exception. Where

an action is in rem and the federal court has first acquired

jurisdiction of the res, this exception authorizes the court

to present state court interference. Kline v. Burke Con-

struction Co., 260 U. S. 226, 229 (1922). It authorizes a

federal court which has already issued an injunction in a

case within its jurisdiction to enjoin the issuance of later,

contrary injunctions by state courts. Looney v. Eastern

Texas R. Co., 247 U. S. 214, 221 (1918). It also authorizes

“federal courts to stay proceedings in State cases removed

to the district courts.” Revision Note to 28 U.S. C.

§ 2283, at 445 (1988 ed.)

The exception definitely does not authorize a federal

court to stay a state action merely to insure that the

controversy will be determined in federal court rather than

state court. This rule was recognized in Kline, supra, 260

U. S., at 232. It was reiterated by a unanimous Court,

including the Toucey dissenters, in Southern R. Co. v.

Painter, 314 U. S. 155 (1941). The 1948 revision expressly

restored the law “as generally understood and interpreted

prior to the Toucey decision.” Revision Note, supra.

Vendo Co. v. Lektro-Vend Corp., 433 U. S. 623 (1977)

refutes the notion that a federal court has carte blanche

authority to preserve the status quo against state court

action. The parties in that case had filed breach of

contract and antitrust suits in state and federal court,

respectively. Jd., at 627. Vendo eventually received a

judgment in state court of over seven million dollars, id.,

2. This exception was added in 1948 to overrule Toucey v. New York Life

Ins. Co., 314 U. S. 118 (1941) and adopt the view of the dissent in that

case. See Parsons Steel, Inc. v. First Alabama Bank, 474 U. S. 518, 524

(1986). It authorizes a federal court to prevent relitigation in state court

of issues already determined in federal court. See Toucey, at 152-153

(Reed, J., dissenting).

at 628, enough to take control of both corporate defen-

dants, id., at 641.

The Federal District Court enjoined execution of the

state judgment, relying on two independent bases of

jurisdiction. First, the court believed that the injunction

section of the Clayton Act was an express exception to the

Anti-Injunction Act. Second, the court “found that

collection efforts would eliminate two of the three plain-

tiffs and thus that the injunction was necessary to protect

the jurisdiction of the court, within the meaning of that

exception to § 2283.” Id., at 629.

Five Justices explicitly rejected the antitrust ground of

jurisdiction on the facts before the Court. The majority

was divided on the question of whether the Clayton Act

could be an exception under other circumstances, howev-

er. Id., at 640-641 (plurality opinion of Rehnquist, J.); id.,

at 643 (Blackmun, J., concurring in the result).

On the second ground, the plurality relied on Kline,

supra, and emphatically rejected the notion that preserva-

tion of the “case or controversy” constitutes an exception

to the Anti-Injunction Act. “No case of this Court has

ever held that an injunction to ‘preserve’ a case or contro-

versy fits within the ‘necessary in aid of its jurisdiction’

exception; neither have the parties directed us to any

other federal court decisions so holding.” /d., at 642.°

The concurring Justices expressed no disagreement

with the plurality’s analysis on the “aid of jurisdiction”

point, which was necessary to the judgment in which they

concurred. Vendo can therefore be considered a majority

holding on this point. Cf. Horton v. California, 110

L. Ed. 2d 112, 123, 110 S. Ct. 2301, 2308 (1990) (state-

ment in plurality opinion not binding because unneces-

sary).

In summary, the Anti-Injunction Act is an absolute

prohibition, not a discretionary admonition. The rule is

broadly construed, and the exceptions are narrowly

3. The plurality also held that the factual basis for the District Court's

holding was flawed. /bid.

TT |

construed. The “aid of jurisdiction” exception is limited

to its historical functions of enforcing the removal statutes,

implementing previously entered decrees in pending cases,

and retaining possession of the res in proceedings in rem.

The only change in the 1948 revision was to overrule

Toucey and authorize the federal courts to prevent relitiga-

tion of issues they had already decided. Kline, Painter, and

Vendo establish that there is no general exception to

preserve a controversy for federal adjudication.

B. The All-Writs Act.

]1. Dean Foods.

The District Court based its jurisdiction on the All-

Writs Act, 28 U. S. C. § 1651(a) and FTC v. Dean Foods

Co., 384 U. S. 597 (1966). Dean Foods is distinguishable

on several grounds.

First and foremost, Dean Foods did not involve any

legislative prohibition on injunctive relief. It was a pure

case of searching for authority in the absence of any clear

indication from Congress one way or the other. See id.,

at 608. The difference between that type of case and one

involving a prohibition on injunctions is critical.

A related distinction, and one nearly as important, is

that Dean Foods does not involve the delicate relationship

between state and federal courts. Federal injunction of

state proceedings is a grave step, never to be taken lightly.

See, e.g., Younger v. Harris, 401 U. S. 37, 41, 43 (1971);

Demosthenes v. Baal, 109 L. Ed. 2d 762, 769, 110 S. Ct.

2223, 2226 (1990).

Finally, Dean Foods involved a writ issued by an

appellate court in a case which had already entered the

federal adjudicatory process. The case was pending before

the Federal Trade Commission. 384 U. S., at 599. Dean

Foods cited as authority cases in which appellate courts

had issued orders in cases pending in the lower courts,

which would later be appealed. Id., at 603.

The District Court in the present case stated that Dean

Foods is authority for pre-filing Stays because the injunc-

tion issued before “the initial entry of [the] action into the

Article III court system.” 743 F. Supp., at 731 (emphasis

added). There is nothing in Dean Foods or the authorities

on which it relies to justify this distinction between Article

I and Article III adjudicatory bodies.

The principal case relied on by Dean Foods is Whitney

Nat. Bank v. Bank of New Orleans & Trust Co., 379 U. S.

411 (1965). See Dean Foods, 384 U. S., at 604. Whitney

is a ringing affirmation of the legitimacy and the wisdom

of Congress’s choice to substitute an administrative body

in the place of the district court in certain specialized

areas. Whitney, 379 U. S., at 420-421. Dean Foods, 384

U. S., at 604, also relies on Continental Illinois National

Bank v. Chicago, R. I. & PR R. Co., 294 U.S. 648, 675

(1935). That case, in turn, relies on the Kline v. Burke

Construction, supra, for the proposition that “a federal

court, having first acquired jurisdiction of the subject

matter, could enjoin the parties....” 294 U.S., at 675

(emphasis added). Where it is the state courts who have

first acquired jurisdiction, Dean Foods provides no authori-

ty for a general power to enjoin them. Indeed, the

District Court’s interpretation of Dean Foods would

amount to a judicial repeal of the Anti-Injunction Act.

2. Supreme Court stays.

The District Court noted that the Supreme Court and

its Justices can and do issue stays of state court proceed-

ings in cases where the certiorari petition has not yet been

filed. Brown v. Vasquez, supra, 743 F. Supp., at 731, n. 8

(citing California v. Velasquez, 445 U.S. 1301 (1980)

(Rehnquist, J., in chambers)). Far from supporting

Brown's position, this power and its source refute that

position.

The Supreme Court is unique among federal courts.

This Court alone has appellate jurisdiction over cases

arising in the state courts. 28 U.S.C. § 1257. This

unique jurisdiction calls for a unique power regarding

stays, see Aflantic Coast Line, supra, 398 U. S., at 296, and

Congress has provided one in 28 U. S. C. § 2101(f):

“In any case in which the final judgment or decree

of any court is subject to review by the Supreme

ee

Court on writ of certiorari, the execution and

enforcement of such judgment or decree may be

Stayed for a reasonable time to enable the party

aggrieved to obtain a writ of certiorari from the

Supreme Court. The stay may be granted by a

judge of the court rendering the judgment or

decree or by a justice of the Supreme Court... . ”

The contrast between the wording of this statute and

the wording of section 2251 is striking and significant.

The Supreme Court may grant stays in cases merely

“subject to review,” but the district court on habeas corpus

is limited to granting stays when a “proceeding is pending”

before that court. Both provisions were adopted in the

same act: the 1948 revision of Title 28. See Pub. L. No.

80-773, 62 Stat. 961-962, 966.

Congress knows how to unambiguously authorize pre-

filing stays when it deems them necessary. The staying of

state court action in a case which has not yet entered the

federal system is a grave step. Congress has seen fit to

allocate such power to the Supreme Court alone.

Supreme Court practice thus provides no authority for

a comparable power in the district court. This Court’s

Stay power derives from a special statute. Congress has

conferred a unique power on the Supreme Court in order

to discharge its unique responsibilities. Congress has also

conferred a stay power on the federal habeas court, but

that power is worded differently. The difference is

intentional.

II. The application for stay and counsel cannot be

“deemed” to be a petition.

Brown argued in the court below that a habeas

proceeding was “pending” upon the filing of the request

for stay and counsel because that document could be

“deemed” a habeas petition under the District Court’s

local rules. Response Brief 35-37. Although the Court of

Appeals did not adopt this reasoning, its decision effec-

tively came to the same result. Amicus has found only

10

one case supporting such an exercise, and the situation

there was quite different. In Studebaker Corp. v. Gittlin,

360 F. 2d 692 (CA2 1966), the court held a hearing before

the complaint was filed, but it issued the injunction

afterwards. J/d., at 694. Under the facts of the case,

Studebaker is authority for no more than the proposition

that a court may deem an extensive affidavit, which

contains the information required in a complaint, to be a

complaint for the purpose of holding a hearing on whether

to grant an injunction. Whether an injunction can actually

issue without an actual complaint is another question.

A Supreme Court case closer to the present facts

points in the opposite direction. In Baldwin County

Welcome Center v. Brown, 466 U. S. 147 (1984), would-be

plaintiff Brown claimed discriminatory treatment by her

former employer, the Welcome Center. After exhausting

administrative remedies with the Equal Employment

Opportunity Commission (EEOC), she had 90 days to

bring a civil action. /d., at 148. Six weeks later, Brown

filed a copy of her EEOC “right-to-sue letter” with the

District Court and requested counsel. The magistrate

mailed her the required form and questionnaire and

reminded her of the deadline. Brown returned the

questionnaire on the 96th day after the right-to-sue letter.

She filed an “amended complaint” on the 130th day, 40

days past the deadline. J/bid.

The Supreme Court held that the EEOC letter could

not be deemed a complaint. The Court noted that under

Federal Rule of Civil Procedure 3 an action is commenced

by filing a complaint. The District Court had determined

“that the right-to-sue letter did not qualify as a complaint

under Rule 8 because there was no statement in the letter of

the factual basis for the claim of discrimination, which is

required by the Rule.” Id., at 149 (emphasis added).

Upholding this ruling, this Court rejected the Court of

Appeals’ notion that civil rights plaintiffs were somehow

exempt out of a special solicitude for this class of plain-

tiffs. Id., at 149-150.

The complaint later filed, the Court went on to

explain, could not “relate back” to the date of filing of the

a

11

EEOC letter because that letter did not meet the very

minimal requirements to constitute a complaint.

“Although the Federal Rules of Civil Procedure do

not require a claimant to set forth an intricately

detailed description of the asserted basis for relief,

they do require that the pleadings ‘give the defen-

dant fair notice of what the plaintiff’s claim is and

the grounds upon which it rests.’ [Citations.]

Because the initial ‘pleading’ did not contain such

notice, it was not an original pleading that could be

rehabilitated by invoking Rule 15(c).” J/d., at 150,

n. 3 (emphasis added).

Baldwin County holds, therefore, that notwithstanding

the liberal rules of modern pleading, there are limits

beyond which a paper cannot be considered a pleading.

A mere application for counsel, or even counsel’s state-

ment of “nonfrivolous” issues, is beyond the limit for a

habeas corpus petition.

The habeas corpus application or petition is not

governed by Rule 8 of the Federal Rules of Civil Proce-

dure (“Civil Rules”) but rather by 28 U. S. C. § 2241 and

Rule 2 of the Rules Governing Section 2254 Cases in the

United States District Courts (“Habeas Rules”). The

Habeas Rules are an Act of Congress. Although original-

ly promulgated by the Supreme Court, see 425 U. S. 1169,

they were amended by Congress and approved as amend-

ed. See Pub. L. No. 94-426 § 1, 90 Stat. 1334 (1976).

In the Court of Appeals, Brown attacked the state’s

argument that a petition must allege facts supporting a

claim for relief. Such an argument, Brown said, urges the

court to usurp the legislative function. Response Brief 35.

This argument is precisely backwards. By approving

Habeas Rule 2(c), Congress has explicitly required that

the petition “shall specify all the grounds for relief . . .

and shall set forth in summary form the facts supporting

each of the grounds thus specified.” How clear must

Congress be? Judicial disregard of this clear legislative

requirement would usurp the legislative function.

12

It is true, of course, that a “petition for habeas corpus

ought not to be scrutinized with technical nicety.” Holiday

v. Johnston, 313 VU. S. 342, 350 (1941). But we are dealing

with essentials here, not niceties. “Liberal as the courts

are and should be as to practice in setting out claimed

violations of constitutional rights, the applicant must meet

the statutory test of alleging facts that entitle him to re-

lief.” Brown v. Allen, 344 U. S. 443, 461 (1953).

Congress has quite deliberately made the initial

pleading requirements more strict for habeas petitions

than for civil complaints in some respects. Civil com-

plaints are generally signed by the attorney and usually

need not be verified. Civil Rule 11.' Habeas petitions

must be verified, 28 U.S.C. § 2242, or signed under

penalty of perjury, Habeas Rule 2(c). The rule requires

the petitioner to personally sign the petition. /bid. The

statute permits “next friend” petitioners, but only under

very limited circumstances. See Whitmore v. Arkansas, 109

L. Ed. 2d 135, 150, 110 S. Ct. 1717, 1727 (1990).

More importantly, section 2242 and Habeas Rule 2(c)

retain “fact pleading” rather than the “notice pleading” of

Civil Rule 8. “ ‘[N]otice pleading’ is not sufficient, for the

petition is expected to state facts that point to a ‘real

possibility of constitutional error. See Aubut v. State of

Maine, 431 F. 2d 688, 689 (1st Cir. 1970).” Advisory

Committee Note to Habeas Rule 4 (emphasis added); see

also 1 J. Liebman, Federal Habeas Corpus Practice and

Procedure § 11.4, at 149 (1988). Even Professor Liebman,

who calls this requirement “curious,” ibid., and “anoma-

lous,” id., at 149, n. 3, grudgingly acknowledges two

justifications for it. “First, ..., habeas corpus is in fact

designed to review and draws heavily on the record of

prior state proceedings .... Second, fact pleading...

enables courts . . . to separate substantial petitions from

insubstantial ones quickly and without need of adversary

proceedings.” /bid.

The second reason is particularly pertinent here. If the

petition fails to state facts which, if true, would entitle the

petitioner to relief, there is nothing to consider. See Hill

v. Lockhart, 474 U. S. 52, 60 (1985); id., at 62 (White, J.,

13

concurring). If the factual basis of the claim has already

been decided in a state proceeding entitled to deference,

it is error to grant a stay. Demosthenes v. Baal, 109

L. Ed. 2d 762, 769, 110 S. Ct. 2223, 2226 (1990).

Barefoot v. Estelle, 463 U. S. 880, 894 (1983) estab-

lished that “it is entirely appropriate that an appeal which

is ‘frivolous and entirely without merit’ be dismissed after

the hearing on a motion for a stay.” Absent an unre-

solved and constitutionally significant factual issue,

consideration of the petition by the district court is no

different.

In summary, there is an irreducible minimum below

which a paper cannot be deemed a petition. It must be

verified or signed under penalty of perjury. It must be

signed by the petitioner absent extraordinary circumstanc-

es. Most importantly, it must serve the basic function of

identifying the claims and their factual basis. The papers

on file at the time the District Court granted the stay did

not meet this essential requirement. The local rulemaking

authority does not include the power to contradict the

habeas statutes and rules. See Frazier v. Heebe, 482 U. S.

641, 646 and n. 4 (1987). The local rules, therefore,

cannot permit these papers to be “deemed” a petition.

III. A proceeding is “pending” under § 2251 when the

petition is filed and not before.

The crux of this case is when a habeas corpus proceed-

ing is “pending.” Authority on the question is sparse,

simply because very few litigants have had the effrontery

to ask a court for relief before they have filed a complaint.

See Hallstrom v. Tillamook County, 493 U. S. 20, 30 (1989)

(assuming courts precluded from granting TRO before

complaint filed). What little authority exists, however, is

uniformly against the Court of Appeals’ conclusion. Even

the most partisan of the pro-petitioner commentators

states unquestioningly that the petition is a prerequisite to

federal jurisdiction as the law now stands. 1 J. Liebman,

14

Federal Habeas Corpus Practice and Procedure § 11.1, at

145 (1988).

A. Civil Cases Generally.

In re Connaway, 178 U. S. 421 (1900) appears to be

the only direct authority for when an action begins so as

to make it “pending.” Connaway filed a complaint in the

Circuit Court for the Ninth Circuit against Overton, but

he was unable to serve it before Overton died. He then

obtained a writ of scire facias to substitute the executor of

Overton’s estate as a party. /d., at 423. A federal statute

authorized the issuance of the writ “from the office of the

clerk of the court where the suit is pending.” Id., at 425

(emphasis added).

The circuit court granted the executor’s motion to set

aside the scire facias on the ground that no suit had been

pending at the time of Overton’s death, because he had

not been served. Connaway applied to the Supreme Court

for a writ of mandamus.

“When can a suit be said to be ‘in any court of the

United States,’ or said to be ‘pending’ therein? Is

not the answer inevitable, from the time the suit is

commenced? I/t cannot be pending until it is com-

menced, and if it continue until the death of the

‘plaintiff or petitioner or defendant,’ the require-

ments of the section seem to be satisfied.

“Another inquiry becomes necessary — when is a

suit commenced? For an answer we must go to the

California statutes.‘ By section 405 of the Code of

Civil Procedure, it is provided: ‘Civil actions in the

courts of this State are commenced by filing a

complaint.’... The filing of the complaint, there-

fore, is the commencement of the action and the

jurisdiction of the court over the case.” Id., at 427-

428 (emphasis added).

4. At this time federal courts adopted the procedural statutes of the states

in which they sat, absent an applicable federal statute. See 2 J. Moore

& J. Lucas, Moore’s Federal Practice 4 1.02{1}, at 1-5 (2nd ed. 1991).

|

15

Connaway thus squarely holds that in a court governed

by a commencement rule equivalent to former section 405

of the California Code of Civil Procedure, a suit is not in

the court and is not “pending” until the complaint is filed.

Rule 3 of the Federal Rules of Civil Procedure is indistin-

guishable from the statute construed in Connaway: “A

civil action is commenced by filing a complaint with the

court.” The rule of Connaway is therefore the rule today

in federal civil cases. See Baldwin County Welcome Center

v. Brown, 466 U. S. 147, 149-150 (1984).

B. Habeas Corpus Cases.

The Court of Appeals, presented with the clear

authority of Connaway and Baldwin County, nonetheless

found that the purpose of habeas corpus permits the

federal courts to make an exception to the usual rules and

consider a habeas corpus proceeding “pending” as soon as

the prospective petitioner asks for counsel. 952 F. 2d, at

1168. The court’s analysis is backwards. The differences

between habeas corpus and other cases call for stricter

requirements for a stay, not more lax requirements.

“The role of federal habeas proceedings, while impor-

tant in assuring that constitutional rights are observed, is

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

887 (1983). Ignoring this principle, the Court of Appeals

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

context for the proposition that federal habeas corpus

review of state convictions “is, in essence, ‘the first line of

defense against constitutional violations.’ ” 952 F. 2d, at

1166 (emphasis added). Once again, the Ninth Circuit is

acting as if state courts do not exist, despite repeated

admonitions by this Court. See, e.g., Sumner v. Mata, 455

U. S. 591, 597-598 (1982); Lewis v. Jeffers, 111 L. Ed. 2d

606, 622-623, 110 S. Ct. 3092, 3102 (1990); Estelle v.

McGuire, 116 L. Ed. 2d 385, 396, 112 S. Ct. 475, 480

(1991).

In Bounds, the prison inmates sou ght access to a law

library in order to prepare a variety of pleadings, which

included state collateral proceedings and state and federal

civil rights actions, as well as federal habeas. See 430

16

U. S., at 828, n. 17. In the course of contrasting these

actions with discretionary appeals following a first appeal

as of right, the Bounds Court referred to the group

collectively as the “first line of defense.” This contrast

was necessary to distinguish Ross v. Moffitt, 417 U. S. 600

(1974), which involved counsel on discretionary appeals.

The crucial difference, said Bounds, was that in Moffitt the

prisoners were “likely to have appellate briefs previously

written on their behalf, trial transcripts, and often interme-

diate appellate court opinions to use in preparing petitions

for further review.” 430 U. S., at 827.

So it is in the present case. Capital defendants in

California are provided counsel not only on appeal but

also on the state habeas petition. See Supreme Court

Policies Regarding Cases Arising from Judgments of

Death, Rule 3, Deering’s Cal. Codes, 2 Rules of Court

262-265 (1992 Supp.) (“Cal. Supreme Court Policies”).

Unlike the brand new cases envisioned by the Bounds

Court, Califoraia capital defendants have the benefit of

extensive briefing and investigation, id., 1 2-2, at 264, by

State-paid attorneys followed by comprehensive review by

the state’s highest court, Cal. Penal Code § 1239(b),

before the case ever enters the federal system. The Court

of Appeals’ discourse about unprepared, pro se petitioners,

952 F 2d, at 1167-1168, inexplicably ignores the great

lengths to which California has gone to provide represen-

tation.

It is quite true, as the Court of Appeals says, that the

Federal Rules of Civil Procedure do not apply where they

are inconsistent with the Habeas Rules. Habeas Rule 11.

But Civil Rule 3 is entirely consistent with both the letter

and the spirit of the Habeas Rules.

The people of California have litigated this case to

final judgment. The case has been thoroughly reviewed

and affirmed by the highest court of the largest state of

the Union. A presumption of finality and legality has

attached. Barefoot, supra, 463 U. S., at 887. The people

have a powerful interest in executing their judgment. Jn

re Blodgett, 116 L. Ed. 2d 669, 674, 112 S. Ct. 674, 676

(1992). Indeed, enforcement of the law against murder is

aseeneenaeeaanaiiieaeaiaeaaaiaiiiiiaieal

17

the single most important function of state government.

Congress has authorized the federal courts to delay the

enforcement of such judgments, but only upon a showing

of a “real possibility of constitutional error.” Advisory

Committee Note to Habeas Rule 4, supra. As Rule 4

recognizes, there may not be any substantial federal

question. Each of the petitioner’s claims may be either

(1) not truly federal, see Estelle v. McGuire, supra, 116

L. Ed. 2d, at 396, n. 2, 112 S. Ct., at 480; (2) precluded by

state court fact-finding, see Lewis v. Jeffers, supra, 111

L. Ed. 2d, at 622-623, 110 S. Ct., at 3102: (3) proposals for

“new rules” precluded by Teague v. Lane, 489 U. S. 288

(1989); or (4) simply insubstantial.

The rule of Connaway, Baldwin County, and Civil Rule

3 that a proceeding is commenced only upon the filing of

a complaint/petition is fully consistent with the procedure

for preliminary review set forth in Habeas Rules 2 and 4.

These rules contemplate a screening process to summarily

dispose of meritless petitions. See also 28 U. S. C. § 2243,

para. 8. The clear import of these rules is that the state

is entitled to proceed with the execution of its judgment

absent a showing of a “real possibility of constitutional

error.” That cannot be done if Stays are issued without:

any showing at all.

Arguments have been made for an automatic stay on

the first habeas petition in capital cases. See, e.g, L.

Powell, et al., Ad Hoc Committee on Federal Habeas

Corpus in Capital Cases: Committee Report and Proposal

7 (1989) (“Powell Committee Report”). Congress has not

yet seen fit to adopt these proposals. The C ongressional

mandate that the state has a right to proceed with its

judgment in the absence of a substantial claim remains in

force. Unless the defendant is required to file his petition

before obtaining a stay, there is no way to carry out that

mandate.

18

IV. Practical alternatives exist.

Although fundamental principles of federal jurisdiction

uniformly point to a lack of jurisdiction, the Court of

Appeals attempts to justify the stay with the dire prospect

of a capital defendant being executed before his first

federal petition could be filed. 952 F 2d, at 1168-1169.

Jurisdictional questions do not require practical answers,

not even in habeas cases. Ex parte Kearney, 7 Wheat. (20

U. S.) 38, 45 (1822); see also Atlantic Coast Line, supra,

398 U. S., at 294. Nonetheless, it is worth noting that with

reasonable diligence on the part of the habeas petitioner

and his attorney, the problem raised by the court below is

readily avoidable.

The California Supreme Court routinely grants stays of

execution pending certiorari to this Court. See Cal.

Supreme Court Policies, supra p. 16, Rule 1, at 262-263.°

Certiorari is not required for exhaustion, however. Fay v.

Noia, 372 U.S. 391, 435 (1963), overruled on other

grounds in Coleman v. Thompson, 115 L. Ed. 2d 640, 669,

111 S. Ct. 2546, 2565 (1991). Work on the habeas petition

can begin immediately. Counsel has three months to file

the certiorari petition, Supreme Court Rule 13.1, and this

Court typically takes several months to rule on it. The

initial setting of an execution date then takes at least 60

days, usually 90. Cal. Penal Code § 1193. Thus, an

inmate who applies for counsel promptly upon exhaustion

of state remedies will have the better part of a year to

5. Under the system of unified review adopted after Brown's case was

decided, the state habeas petition is filed in the Supreme Court after the

direct appeal reply brief but before argument. Cal. Supreme Court

Policies, supra p. 16, Rule 3 @ 1-1.1, at 263. The petition is dismissed

before decision of the appeal if it is insubstantial or consolidated with the

appeal if it is substantial. See, e.g., People v. Gonzalez, 51 Cal. 3d 1179,

1240, 800 P. 2d 1159 (1990). State remedies are thus exhausted upon

decision of the direct appeal.

19

obtain counsel and file the petition.° Cf. Powell Commit-

tee Report, supra, at 6 (six months sufficient).

The Court of Appeals makes much of the rule of

McCleskey v. Zant, 113 L. Ed. 2d 517, 111 S. Ct. 1454

(1991) in holding that pre-filing Stays are necessary. See

952 F. 2d, at 1166-1167. This reliance is misplaced. It

ignores the very substantial resources the state has already

provided for investigation of potential claims. See ante, at

16. Federal habeas counsel need not investigate the case

from scratch, but only review and supplement a completed

investigation. See, e.g., Antone v. Dugger, 465 U. S. 200,

206 (1984) (claim readily available in state pleadings).

Rose v. Lundy, 455 U. §. 509, 520 (1982) “provides a

simple and clear instruction to potential litigants: before

you bring any claims to federal court, be sure that you

first have taken each one to state court.” Before a death

row inmate ever gets to federal habeas, California has

provided him with the forum, the counsel, and the investi-

gative resources to comply with that direction. The cards

should all be on the table by this point.

It is ironic indeed that while the district courts in all

the other states with capital punishment discharge their

duties without pre-filing stays, the rule in question here

has been adopted in the state where it is least necessary.

The time available to the diligent petitioner is sufficient,

given the extensive state review and the “secondary and

limited” role of federal habeas corpus. In addition to

being illegal, the rule purporting tc authorize a pre-filing

Stay is unnecessary.

6. There is no inconsistency in permitting a court to consider motions to

appoint counsel or proceed in forma pauperis before the “commence-

ment” of a proceeding. See Baldwin County, supra, 466 U. S., at 148; 42

U.S. C. § 2000e-5(f)(1). Such motions impact only the court and the

treasury, not the nghts of the adverse party. Compare 28 U. S. C. § 2251

(“proceeding is pending”) with 18 U.S. C. § 3006 A(a)(2) (“person who

. Is seeking relief”).

20

V. Demosthenes v. Baal accurately summarizes

the controlling principles.

Demosthenes v. Baal, 109 L. Ed. 2d 762, 110 S. Ct.

2223 (1990) states that “federal courts are authorized by

the federal habeas statutes to interfere with the course of

state proceedings only in specified circumstances.” /d., at

769, 110 S. Ct., at 2226. Although no citation is given, this

is a Statement of the fundamental principle established by

the authorities in part I, supra. The Anti-Injunction Act

bars federal interference absent an exception, and section

2251 is the only relevant exception.

“Before granting a stay, therefore, federal courts must

make certain that an adequate basis exists for the exercise

of federal power. In this case, that basis was plainly

lacking. The State is entitled to proceed without federal

intervention.” Jbid.

CONCLUSION

The judgment of the Court of Appeals should be

summarily reversed.

April, 1992

Respectfully submitted,

KENT S. SCHEIDEGGER

Attorney for Amicus Curiae

Criminal Justice Legal Foundation