Opposition Brief — Borg v. Mikes

i D

Be A v 9

° No. 91-1467 mAY 29 1992

IN THE | OAROE OF THE CLERK

eee a

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1991

R.G. BORG, Warden,

Petitioner,

Vv.

MELVIN MIKES,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RESPONDENT’S BRIEF IN OPPOSITION

FERN M. LAETHEM 4

State Public Defender

JILL ISHIDA

Deputy State Public Defender

Counsel of Record

107 South Broadway, Suite 9111

Los Angeles, California 90012

Telephone: (213) 897-5316

Attorneys for Respondent

QUESTIONS PRESENTED

1. In determining whether to grant a petition for

writ of habeas corpus by a person in custody pursuant to the

judgment of a state court, should a federal court give

deference to the state court’s application of law to the

specific factors of the habeas petitioner’s case or should

it review the state court’s determination de novo?

2. May a federal court grant collateral relief

merely because it disagrees with the good faith reasonable

decision of the state court?

3. Did the Ninth Circuit Court of Appeals

improperly grant habeas corpus relief, in violation of the

"new rule" doctrine of Teague v. Lane, 489 U.S. 288 (1989),

when it held that the evidence of the state defendant’s

fingerprints on the murder weapon found at the crime scene

was inadequate to support his conviction because there was

no additional evidence affirmatively showing that the weapon

Had been inaccessible to him earlier during a time when he

might have innocently handled it?

* * * * * *

TABLE OF CONTENTS

Page

RESPONDENT’S BRIEF IN OPPOSITION

QUESTIONS PRESENTED i

STATEMENT OF THE CASE 1

REASONS FOR DENYING THE WRIT 2

A. The Ruling Petitioner Seeks From This Court

Regarding the Standard of Review in Habeas

Cases Would Require This Court to Violate

Principles of Separation of Powers and Stare

Decisis 2

a Petitioner Did Not Raise a Teague Claim

Below. Furthermore No "New Rule" of Law Was

Established in the Opinion Below 8

CONCLUSION 14

li

TABLE OF AUTHORITIES

Cases Page

Amadeo v. Zant,

486 U.S. 214 (1988)

Borum v. United States,

380 F.2d 595 [o.c. Cir. 1967).

Brown v. Allen,

344 U.S. 443 (1953) 3,

Butler v. McKellar,

494 U.S. 407 (1990)

Collins v. Youngblood,

4a0 S.Ct. 2715 (1990)

Duignan v. United States,

274 U.S. 195 (1927)

Estelle v. McGuire,

saa &. Ct. 475 (1991) 6,

Fay v. Noia,

272 U.8. 391 (1963)

Granberry v. Greer,

481 U.S. 129 (1987)

Hilton v. South Carolina Public Railways

Commission,

ane $.Ct. 560 (1991)

Jackson v. Virginia,

443 U.S. 307 (1979)

Lewis v. Jeffers, -

110 S.Ct. 3092 (1990)

Miller v. Ferton,

474 U.S. 104 (1985)

Saffle v. Parks,

494 U.S. 484 (1990)

Sanders v. United States,

sfa U.B. § (1963) 5,

lii

12

Cases

TABLE OF AUTHORITIES (CONT ’D)

Sumner v. Mata,

449 U.S.

TVA v. Hill,

437 U.S.

Teague v.

489 U.S.

Townsend v.

afa U.8.

United States

426 F.2d

United States

460 F.2d

United States

o¢7 F208

United States

452 F.2d

United States

710 F.2d

539 (1981)

153 (1978)

Lane,

288 (1989)

Sain,

293 (1963)

Vv. Collon,

939 (6th Cir.

v. Fossen,

38 (4th Cir.

Vv. Lonsdale,

923

Vv. Scott,

660 (9th Cir.

Vv. Talbert,

528 (9th Cir.

Youakim v. Miller, -

423 U.S.

Statutes

231 (1976)

U.S.C. § 2254(a)

§ 2254(d)

Constitutions

Const.,

art.

san, 6 2

Texts and Others

Pollak, Proposals to Curtail Federal

5649, H.R. Rep. No. 1200,

lst Sess.

(April 11,

(stm Cir.

1970)

1972)

1978)

1971)

1983)

1955)

Habeas Corpus for State

Prisoners: Collateral Attack on the

Great Writ,

66 Yale L.J.

iv

84th Cong.,

50 (1956)

i

ai,

>

11

12

12

12

12

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oon

No. 91-1467

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1991

R.G. BORG, Warden,

Petitioner,

V.

MELVIN MIKES,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

TO THE

RESPONDENT’S BRIEF IN OPPOSITION

STATEMENT OF THE CASE

Respondent incorporates by reference the statement

of facts as outlined in the Ninth Circuit’s Opinion below.

In addition, petitioner filed his Return to

Petition for Writ of Habeas Corpus in the Central District

Court on March 20,

1989 and his Appellee’s Brief in the

Ninth Circuit on June 26, 1990. In neither Pleading was a

Teague claim raised.

REASONS FOR DENYING THE WRIT

i. The Ruling Petitioner Seeks From This Court

Regarding the Standard of Review in Habeas

Cases Would Require This Court to Violate

Principles of Separation of Powers and Stare

Decisis

The facts of this case were undisputed. The only

evidence of guilt were respondent’s fingerprints on the post

believed to be the murder weapon. Other fingerprints were

also on that post, fingerprints which were Capable of

identification, but were not respondent’s. Respondent did

not testify. Respondent raised the federal constitutional

issue of sufficiency of evidence under Jackson v. Virginia,

443 U.S. 307 (1979). Because the facts were undisputed, the

state court’s analysis of the sufficiency issue required

Only an application of the federal law of sufficiency to the

facts of the case. The Ninth Circuit applied the Jackson

Standard and, relying on longstanding federal authority,

reversed the state court’s decision.

Petitioner does not contend that the Ninth Circuit

improperly exercised its authority in reaching its decision.

Rather, petitioner is asking this court to change the de

novo standard of review of federal constitutional questions

on habeas corpus. In its stead, petitioner promotes a

standard which would require the federal court to accord

2

deference to a state court’s application of federal law in

the same manner it is required to accord a presumption of

correctness to the state court’s finding of facts. (Petn.,

pb. 14.) Such a ruling by this court would foreclose federa]

court jurisdiction over federal constitutional issues where

Only Congress has the authority to delineate the

jurisdiction of the federal courts in habeas corpus cases,

thereby violating the doctrine of separation of powers.

Furthermore, it would be contrary to a line of cases dating

back decades which have interpreted the habeas statute

require a de novo standard of review.

Under article III, section 1 of the Constitution,

it is Congress that is vested with the power to confer

federal jurisdiction. In interpreting the habeas statute,

this Court in Brown v. Allen, 344 U.S. 443 (1953) made

explicit that in reviewing federal constitutional issues on

Nabeas a de novo standard of review was required. Justice

Frankfurter, writing a second opinion for the Court,

explained that:

State adjudication of questions of law

cannot, under the habeas corpus statute, be

accepted as binding. It is precisely these

questions that the federal judge is commanded to

decide.

Where the ascertainment of the historical

facts does not dispose of the claim but calls for

interpretation of the legal significance Of such

facts . . . the District Judge must exercise his

Own judgment on this blend of facts and their

legal values. Thus, so called-mixed questions or

the application of constitutional principles to

the facts as found leave the duty of adjudication

with the federal judge. (id. at PP. 506-507.)

The Court recognized that the principle of Separation-of-

powers would be violated if the Court circumscribed that

jurisdiction:

It is not for us to determine whether this

power should have been vested in the federal

courts. . .. ([T)he wisdom OF .+.8

modification in the law is for Congress to

consider ..,, (Id. at pp. 499-500.)

All that has gone before is not to be ignored

as irrelevant. But the prior State determination

of a claim under the United States Constitution

cannot foreclose consideration of such a Claim,

else the State court would have the final say

which the Congress, by the Act of 1867, provided

it should not have . - «© » (Id. at p. 500.)

After Brown, Congress considered mumerous plans to

revise habeas corpus to reguire the federal courts to defer

to the state courts’ decision on federal Claims. E.g. H.R.

5649, H.R. Rep. No. 1200, 84th Cong., 1st Sess. (April 11,

1955), discussed in Pollak, Proposals to Curtail Federal

Habeas Corpus for State Prisoners: Collateral Attack on the

Great Writ, 66 Yale L.J. 50 (1956). No such plan, however,

was passed, and this Court continued to confirm the holding

in Brown that the federal courts are not to defer to

previous state court application of federal law to

particular facts. Fay v. Noia, 372 U.S. 391 (1963);

Townsend v. Sain, 372 U.S. 293 (1963); Sanders v. United

States, 373 U.S. 1 (1963).

In 1966, Congress did act in the area of habeas

corpus. For purposes of this discussion, there were two

Significant changes. The first was to add subsection

2254(a) which reads:

(a) The Supreme Court, a Justice thereof, a

circuit judge, or a district court shall entertain

an application for a writ of habeas corpus in

behalf of a person in custody pursuant to the

judgment of a State court only on the ground that

he is in custody in violation of the Constitution

or laws or treaties of the United States.

On its face, this new statute confirmed the federal courts’

obligation to receive petitions from state prisoners to

review for federal error and to correct those errors,

particularly since it was enacted only three years after

Noia, Townsend, and Sanders. The second change was to add

Section 2254(d) whitth requires the federal court to defer to

state courts’ findings of fact. Had Congress intended the

federal courts to defer to state courts’ application of law

as well as findings of fact, it would have said so.

Congress’ failure to act on the issue of the standard

of review should not be deemed an invitation to this court

to act. The jurisdiction of the federal courts is purely a

matter of statute which is within the power of Congress to

determine. This Court has been mindful of the Separation of

powers doctrine in other contexts:

(I]n our constitutional System the commitment

to the separation of powers is too fundamental

for us to pre-empt congressional action by

judicially decreeing what accords with ‘common

sense and the public weal.’ our constitution

vests such responsibilities in the political

branches.

“AXA V. Hill, 437 U.s. 153, 195 (1978). So too in this case

should the court respect the political-judgment reached by

the legislative branch and leave it to the wisdom of

Congress to alter the Standard of review on habeas.

In addition to the doctrine of Separation of

powers, the principle of stare decisis compels this Court to

continue to use the de novo standard of review. Since 1966,

this Court has continued to employ a de novo review standard

to state courts’ application of federal law. Estelle vy.

McGuire, 112 S. Ct. 475 (1991); Miller v. Fenton, 474 U.S.

104 (1985); Sumner v. Mata, 449 U.S. 539 (1981).

Considerations of stare decisis are particularly important

in cases where this Court has given a federal Statute an

authoritative interpretation, and Congress has had ample

time to reject that interpretation. ilton v. South

Carolina Public Railways Commission, 112 S.ct. 560, 564

(1991),

Petitioner asserts that this Court’s recent

Opinions in the area of habeas, Teaque v. Lane, 489 U.S. 288

(1989), Butler v. McKellar, 494 U.S. 407 (1990); Saffle v.

Parks, 494 U.S. 484 (1990), strongly Suggest that the

federal courts must defer to the state courts’ application

Of law to facts. (Petn., p. 11.) These cases, however, do

not address the plenary nature of review by the federal

courts, but only the Scope of cases which can be reviewed on

habeas. The Teague line of cases establish that new rules

of constitutional law announced after a conviction becomes

final should not be applied by federal courts in habeas

proceedings. Whether the habeas petitioner is seeking

relief under a new rule is a threshold question decided

before the federal court reviews the merits of the Claim.

If there is no new rule, then review is de novo. In post-

Teague cases, Lewis v. Jeffers, 110 S.ct. 3092, 3102-3104

(1990) and Estelle v. McGuire, 112 S. Ct. 475, 481-482, this

Court has applied a de novo standard of review to mixed

questions of fact and law.

This Court should not grant certiorari on the issue of

the standard of review for several reasons. First, it is

for Congress to designate the jurisdiction of the federal

courts, and action by this Court would violate the doctrine

of separation of powers. Second, this Court’s longstanding

interpretation of the habeas statute as requiring de novo

review should be adhered to under principles of stare

decisis. Last, this court’s recent decisions do not

indicate a change in the standard of review in habeas cases

is warranted. Certiorari should be denied.

2. Petitioner Did Not Raise a Teague Claim

Below. Furthermore No "New Rule" of Law Was

Established in the Opinion Below

Petitioner seeks a grant of certiorari on a Teague

issue which he failed to raise below. Petitioner filed his

Return to Petition for Writ of Habeas Corpus in the District

Court on March 16, 1989, and his Appellee’s Brief in the

Ninth Circuit on June 26, 1990, both after the date of

Teague v. Lane, 489 U.S. 288 (1989). Although respondent’s

Claim has been the same throughout state and federal court

~- that the evidence was insufficient to sustain the

conviction -- petitioner did not raise a Teague claim in

either pleading. As a result, neither the Magistrate’s

Findings in the District Court, nor the Ninth Circuit

opinion discuss Teague. Instead, both courts resolved the

case on Jackson v. Virginia grounds. It was not until

petitioner lost in the Ninth Circuit that he raised a Teague

claim in his Petition for Rehearing.

This court should not grant certiorari on the

Teague issue where petitioner failed to raise the issue

below, and as a result respondent did not have the

opportunity to address the issue below and neither court

below considered the issue. "It is only in exceptional

cases . . . that questions not pressed or passed upon below

are reviewed." Duignan v. United States, 274 U.S. 195, 200

(1927); Youakim v. Miller, 425 U.S. 231, 243 (1976). Ifa

Teague claim exists in this case, it is not extraordinary

and was waived by petitioner when he failed to raise the

issue before rehearing.

The Teague defense of nonretroactivity is not

jurisdictional and, thus, the burden of raising the defense

was on petitioner and not on the federal courts sua sponte.

Collins v. Youngblood, 110 S.Ct. 2715, 2718 (1990). That

the burden is allocated in this manner is consistent with

the general rule that allocates to the responding party the

burden of pleading habeas corpus defenses. See e.g., Amadeo

v. Zant, 486 U.S. 214, 228, fn. 6. (1988) (procedural

default defense); Granberry v. Greer, 481 U.S. 129 (1987)

(non exhaustion defense); Sanders v. United States, 373 U.S.

1, 10 (1963) (abuse of writ bar). Moreover, the reliance-

and finality-based interests that the Teaque

nonretroactivity defense serves belongs to the state, hence

it should be the state’s responsibility to assert that

defense. Because petitioner did not raise this defense

before, he should not now be heard on this issue before this

Court.

Furthermore, no "new rule" was established in this

case, and thus, Teague is not applicable. Petitioner argues

that the court of appeals below created a new Jackson v.

Virginia sufficiency of evidence standard by requiring the

prosecution to not only produce evidence from which a

rational juror could find the essential elements of a crime

beyond a reasonable doubt, but to also produce evidence

which affirmatively negates exculpatory inferences that

might be drawn from the evidence. (Petn., p. 15.) The

court of appeals did not so hold. Indeed, the court

expressly rejected this "holding" which petitioner argues it

embraced when it recognized that the prosecution is not

obligated to "exclude all inferences or reasonable

hypotheses consistent with innocence." (Petn., Appen. A

[slip opn., p. 13998}.) What the court did hold is that the

Jackson v. Virginia standard is not met in a fingerprints-

only case where the prosecution case is based on the premise

that the defendant placed his fingerprints on the

incriminating object at the time of the crime, but the

prosecution fails to present evidence from which the jury

could reasonable infer that the prints were placed on the

object at the time of the crime. (Petn., Appen. A [slip

opn., p. 13998]).)

That holding established no new rule under Teague.

A case announces a new rule "only where the rule breaks new

ground or imposes new obligations on the States or the

Federal Government." Teague v. Lane, 489 U.S. 288, 301

(1989). There is nothing new in the court of appeals

treatment of the Jackson v. Virginia standard. The gloss

which petitioner argues the court added to the Jackson

standard was repudiated by the court; no such expansion of

the Jackson standard was announced in the opinion below.

Instead, the court simply set forth the Jackson standard and

applied it to the undisputed facts of the case.

Petitioner’s real quarrel is not with the court’s treatment

of the Jackson standard, but with the de novo standard of

review and the court’s conclusion that the fingerprint

evidence in this case did not constitute sufficient

evidence. There is, however, nothing new in the court’s

application of the Jackson standard to the facts of this

case.

The court’s holding regarding what constitutes

sufficient evidence in a fingerprints-only case merely

reiterated what that court and other circuits had previously

held. United States v. Talbert, 710 F.2d 528 (9th Cir.

1983); United States v. Lonsdale, 577 F.2d 923 (Sth Cir.

1978); United States v. Fossen, 460 F.2d 38 (4th Cir. 1972);

11

Borum v. United States, 380 F.2d 595 (D.C. Cir. 1967).

(Petn., Appen. A [Slip opn., p. 13997]}.) In reaching its

conclusion that the facts of this case did not establish

sufficient evidence, the court relied on factually similar

cases which also found insufficient evidence. United States

v. Lonsdale, 577 F.2d 923, United States v. Van Fossen, 460

F.2d 38; United States v. Collon, 426 F.2d 939 (6th Cir.

1970); Borum v. United States, 380 F.2d 595. (Petn., Appen.

A [slip opn., pp. 14004-14006]}.) Those cases represented

opinions from numerous circuits dating as far back as 1967.

That petitioner’s complaint is with the outcome of the case

and not the court’s "expansion" of the Jackson standard is

evidenced by petitioner’s contention that the facts of this

case were more similar to those in United States v. Talbert,

710 F.2d 528 (9th Cir. 1983) and United States v. Scott, 452

F.2d 660 (9th Cir. 1971), instead of the cases relied on by

the court. (Petn., p. 18.) Those cases, however, are

factually distinguishable, and the court of appeals fully

and carefully discussed those distinctions in its opinion.

(Petn., Appen. A [Slip op., pp. 14002-14003}.

There is no Teague issue to resolve in this case.

The court of appeals did not change the Jackson v. Virginia

sufficiency of evidence standard in its opinion. The court

Simply looked at the undisputed facts of this case and,

relying on established case law, determined that the facts

12

of this case did not Satisfy the Jackson standard.

of certiorari should be denied.

* * * * * *

13

The writ

CONCLUSION

For the foregoing reasons, respondent Mikes

requests that the writ of certiorari be denied.

DATED: May 20, 1992

Respectfully submitted,

FERN M. LAETHEM

State Public Defender

SU (hice.

JILL ISHIDA~

Deputy State Public Defender

Counsel of Record

Attorneys for Respondent

14

No. 91-1467

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1991

R.G. BORG, Warden,

Petitioner,

Vv. ,

MELVIN MIKES,

Respondent.

CERTIFICATE OF SERVICE

I, JILL ISHIDA, a member of the Bar of this Court,

hereby certify that on May 20, 1992, a copy of the Motion to

Proceed In Forma Pauperis and Respondent’s Brief in

Opposition in the above-entitled case were mailed, first-

class postage prepaid, to counsel for petitioner:

DONALD De NICOLA

Deputy Attorney General

300 South Spring Street, Suite 500

Los Angeles, CA 90013

I further certify that all parties required to be

lu |Aicde

JILL ISHIDA

Deputy State Public Defender

107 South Broadway, Suite 9111

Los Angeles, CA 90012

(213) 897-5316

served have been served.

Counsel for Respondent