Opposition Brief — Lewis v. Adamson

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No. 91-1792 SUPRE ye THE cuepy

IN THE SUPREME COURT OF THE UNITED STATE URT Y 6

October Term, 1991

SAMUEL A. LEWIS, ET AL.,

Petitioner,

vs.

JOHN H. ADAMSON,

Respondent.

OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

TIMOTHY J. FOLEY®*

900 North Point Street

Suite 450, Cocoa Building

San Francisco, California 94109

Telephone: (415) 922-0882

TIMOTHY K. FORD

MacDonald, Hoague & Bayless

1500 Hoge Building

Seattle, Washington 98104

Telephone: (206) 622-1604

ATTORNEYS FOR RESPONDENT

*Counsel of Record

Question Presented

Whether the Court of Appeal abused its discretion by

declining to withhold the mandate and reopen its previous

judgment on the grounds that subsequent case law purportedly

eroded the basis for the previous judgment.

TABLE OF CONTENTS

QUESTION PRESENTED . . . + e . . . 7 . . o . . 7. . . 7 . . e

TABLE OF AUTHORITIES ...+- + «© © © © © © © © © © © © © © @

OPINION

A.

Cc.

BELOW e e . 7 o 7. e . s . . . . e . . es ° . 7 * . . e

The Previous Certiorari Proceeding ...+ + +s -»

The State’s Attempts to Reopen or Vacate the Circuit’s

Judgment . . 7 . . . . . . . = . . 7. e . 7 . . . .

Present Status of the Parties ....++-e« ++ « »

I. STATEMENT REGARDING JURISDICTION AND STANDARD OF

REVIEW . . . # . . . . . > . e . . - . . . . . . 2 . . .

II. THE PRESENTATION OF NEW CASE LAW DOES NOT CONSTITUTE

SUFFICIENT EXCEPTIONAL CIRCUMSTANCES TO WARRANT THE

EXTRAORDINARY STEP OF WITHHOLDING THE MANDATE AND

REOPENING A JUDGMENT . . + © © © © © © © © © © © © # *

III. EVEN IF PETITIONER’S LEGAL ARGUMENTS ARE CONSIDERED,

CERTIORARI IS NOT WARRANTED . + + © © © © © © © # @ *

A.

The Subsequent Opinion of Alabama v. Smith Does Not

Compel Reexamination of the 1988 En Banc Judgment

as Prosecutorial Vindictiveness ....+-«+«. -»

Re Judicial Arbitrariness ...-«+eeeeeee

The Subsequent Decision of Teague v. Lane Does Not

Compel Reexamination of the 1988 En Banc Judgment

CONCLUS ba ON . e. . . . . om . . . o . . . . . © . ° . >” . a .

ii

10

15

15

16

17

18

22

TABLE OF AUTHORITIES

CASES

Ackermann v. United States, 340 U.S. 193 (1950) ...... 8,

Adamson v. Ricketts, 865 F.2d 1011 (9th Cir. 1988) oe « By 8S,

Alabama v. Smith, 109 S.Ct. 2201 (1989) .. 3, 4, 7, 9, 15-18,

American Iron and Steel Institute v. E.P.A., 560 F.2d 589

(3rd Cir. 1977), cert. denied, 435 U.S. 914 (1978) .. 8,

Baldwin v. Iowa State Traveling Men’s Association,

283 U.8s. 522 (1931) . . . . . *. 7 + 7. o _ es >. >. . o =

Bryant v. Ford Motor Co., 886 F.2d 1526 (9th Cir. 1989),

cert. denied, 110 a 1156 (1990) . o . . 7 . -_ . . >

Butler v. McKellar, 494 U.S. 407 (1990) . «© «© e «© e © e© © @ e

Clark v. Ricketts, 958 F.2d 851 (9th Cir. 1991) .....e-«.-.

Coleman v. Thompson, 111 S.Ct. 2546 (1991) .. «2. « « « « « «

Besiet ¥. Gaited Otates, 3964 UiB. B66 12969) 6 6 2 2 ew ow 2

Dilley v. Alexander, 627 F.2d 407 (D.C. Cir. 1980) .....

Engle v. Isaac, 456 U.S. 107 (1982) . «. «© « «© © © «© © © © @ «

Falconer v. Lane, 905 F.2d 1129 (7th Gir. 1990) .......

Federal Trade Commission v. Minneapolis Honeywell & Co.,

344 Bema 206 (1952) . . . = © . . . . = * . . . . . . 7,

Fusari v. Gteinburg, 429 U.8. 379 (1974) .«+« «© «© © © © © © 2

Greater Boston Television Corporation v. F.C.C.,

463 F.2d 268 (D.C. Cir. 1971) ie ta tae ae On ae ee cae ae ae il,

Hanrahan v. Green, 896 F.2d 241 (7th Cir. 1990) . ...-e..-e

Hazel-Atlas Glass Co. v. Hartford Empire Co.,

322 awe 238 (1944) . o . . . e . . . . e - . . . . a 10-

Hines v. Royal Indemnity Company,

253 F.2d 111 (6th cir. 1958) *. © © © © © © © #© # @ 8, 1i-

Iverson v. Commissioner of Internal Revenue,

207 P.8G 606 (OCR Car. 3966) « «§ « 2 6 © © 6 @ 8 ee 8,

iii

11

16

20

i1

i1

13

12

Johnson v. Bechtel Association Professional Corp.,

801 F.2d 412 (D.C. Cir. 1986) Ve a a a a ee oe ee ee ee

Lewis v. Adamson, 110 &8.Ct. 3287 (1990) . . «© «© »= ee eee oe & @

Lewis v. Jeffers, 110 S.Ct. 3092 (1990) .... 3, 4, 13, 15, 29

Mackey v. United States, 401 U.S. 667 (1971) .....+-.+ es 19

Mata v. Ricketts, 937 F.2d 46? (9th Cir. 1991) .....-.

Maynard v. Cartwright, 486 U.S. 356 (1988) ........s.. 18

North Carolina v. Pearce, 395 U.S. 711 (1969) . ....+.-. s+ 16

Peary Vv. Lynaugh, 492 0.8. 302 (1969) . « . «+ 6 © ee eo ow oe 88

Plotkin v. Pacific Tel. and Tel. Co.,

688 F.2d 1291 (9th Cir. 1982) ii-—s* =. = & «se Oo: ee 12

Powers v. Bethlehem Steel Corp.,

483 F.2d 963 (ist Cir. 1973) . . . . . . . . . . . . . 8, 12

RaGeeces ¥. Aganmsen, 663 U.8. 2 (2967) .« « « «= « 2 « © » @ 8B 8

Riha v. International Tel. and Telegraph,

$33 F.2d 1053 (8th Cir. 1976) . © ~ . . . ° . . . 7 ads 13

Saffle v. Parks, 494 U.S. 484 (1990) “ta tk oa oo Oe ee ee Oe Sar a

Sanders v. United States, 373 U.S. 1 (1963) . ...+.-+ «++ 23

Sawyer v. Smith, 110 8.Ct. 2822 (1990) “oe te oe oe oo oe a ee oe

Smith v. McCormick, 914 F.2d 1153 (9th Cir. 1990) ...... 14

Taylor v. Kincheloe, 920 F.2d 599 (9th Cir. 1990) ...... 16

Teague v. Lane, 109 S.Ct. 1060 (1989) .~. . . ... « 7, 15, 19, 20

Thomas v. Indiana, 910 F.2d 1413 (7th Cir. 1990) ....-+.. 20

Toledo Scale Co. v. Computing Scale Co., 261 U.S. 399 (1923) .7

Turner v. Murray, 476 U.S. 25 (1986) “Ee Ge a, ae ee ee ee ee ee ee ee

Verrilli v. City of Concord, 557 F.2d 664 (9th Cir. 1977) .. 11

Walton v. Arizona, 110 S.Ct. 3047 (1990) ... 3, 4, 13, 15, 20

iv

Williams v. Dickson, F.2d p

1992 Westlaw 46072 (4th Cir. 1992) .....

Zant v. Moore, 109 S.Ct. 1519 (1989) ses ¢ © & &

Zipfel v. Halliburton Co., 861 F.2d 565 (9th Cir.

cert. denied, 110 S.Ct. 1126 (1990) ....

UNITED STATES SUPREME COURT RULES

Rule 10.1(a) . . © io . . . . © . . . . . . +

Rule 15.7 + a . oo . . . . . . . . ° . . . .

Rule 44 . . . . +. + 7 7 7 7 7 . . . . . . .

Rule 44.2 7 . . . . . os . . . . . . . . . .

FEDERAL RULES OF APPELLATE PROCEDURE

Rule 41 . . * . . . . . . . . . . . . . . 7

FEDERAL RULES OF CIVIL PROCEDURE

Rule 6O(B) . «© «© sseeeseseeeeeeees

3,

- 20

- 20

8, 11

- -« 8

- 19

7, 18

. 7 3

4, 10

8, 11

No. 91-1792

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1991

SAMUEL A. LEWIS, ET AL.,

Petitioner,

vs.

JOHN H. ADAMSON,

Respondent.

Respondent John H. Adamson respectfully prays that the Court

deny the request for a writ of certiorari.

Opinion Below

The order denying the State’s motion to withhold the mandate

and reconsider the previous judgment is published at 955 F.2d 614

(9th Cir. 1992).

STATEMENT OF THE CASE

In 1988, an en banc panel of the Ninth Circuit decided

Adamson v. Ricketts, 865 F.2d 1011 (9th Cir. 1988). Tho State’s

petition for certiorari from that case was denied in 1990. Sub.

nom Lewis v. Adamson, 110 S.Ct. 3287 (1990). In this new

certiorari proceeding, the State returns to this Court, seeking

review of the circuit court’s denial of its motions to withhold

the mandate and reconsider the previous opinion.

A. The Previous Certiorari Proceeding.

The factual background and procedural history of this case

are set out in the order below, 955 F.2d at 616, and in the prior

opinions. See Adamson v. Ricketts, 865 F.2d at 1014-1016;

Ricketts v. Adamson, 483 U.S. 1, 3-5 (1987).

On December 22, 1988, an en banc panel of the Ninth Cifcuit

held, by a 7 to 4 vote,’ that John Adamson’s death sentence was

unconstitutional on a number of grounds. The court held that the

Arizona capital punishment system was unconstitutional, and also

held that Mr. Adamson was entitled to relief on certain narrow,

fact-specific claims.’ The State of Arizona sought review of

that decision on two levels.

' Pursuant to Ninth Circuit Rule 35-3, an “en banc" panel

in the Ninth Circuit consists of eleven judges.

? The court also rejected Adamson’s claim that the

confrontation clause was violated at trial and the claim that the

automatic presumption of vindictiveness required that the

conviction be set aside.

First, on January 6, 1989, the State filed a motion for

rehearing in the Ninth Circuit. That motion was denied on

February 1, 1989.

Second, the State filed a petition for writ of certiorari,

nc. 28-1553, in this Court in March of 1989. That petition was

held pending the resolution of Walton v. Arizona, no. 88-7351 and

Lewis v. Jeffers, no. 89-189 which involved the constitutional

attacks on the Arizona statute. On June 27, 1990, Walton’ and

Jeffers‘ were decided. On the following day, certiorari was

denied in no. 88-1553. Three justices indicated they would have

granted the petition, vacated and remanded for further

consideration in light of the Walton, Jeffers and Alabama v.

Smith, 109 S.Ct. 2201 (1989). 110 S.Ct. 3287.°

Notably, the State did not petition for rehearing, under

this Court’s Rule 44, from the denial of certiorari. The State

had the opportunity then to argue that recent decisions of this

Court had a “substantial or controlling effect" (Rule 44.2) on

the matter, but declined to do so.

B. The State’s Attempts to Reopen or Vacate the Circuit’s

After certiorari was denied, the State attempted to attack

the circuit’s prior judgment in the lower court, initiating the

proceedings that underlie this latest petition.

> Walton v. zona, 110 8.Ct. 3047 (1990).

‘ Lewis v. Jeffers, 110 8.Ct. 3092 (1990).

$ Justice O’Connor and Justice Kennedy took no part in the

consideration of the case.

oan.

/

The State filed a motion to stay the mandate and a

"Motion for Rehearing and Suggestion For Rehearing Before Full En

Banc Court" in the circuit on July 10, 1992. The deadline for

staying the mandate had passed on July 2, 1992, when the circuit

received the order denying certiorari, which triggers the

issuance of the mandate under Federal Rule of Appellate Procedure

41, but, due to a clerical error, the mandate had not issued when

the State filed these motions. On July 16, 1990, the State filed

a "Motion to Circulate Petition For Rehearing Before the Full

Court." These three motions requested that the court reassess

the previous decision in light of Walton, Jeffers and Alabama v.

Smith, essentially adopting the position of the three justices

who favored remand from the certiorari proceeding. See

Appendix A to this Opposition.

While those motions were pending, in January, 1991, the

State filed a "Motion to Vacate Judgment and Dismiss Appeal as

Moot,"' on the grounds that the original plea agreement had been

reactivated, and that Mr. Adamson and the State had arrived at an

arrangement through which he would testify at the upcoming trial

of two others. See Exhibit D to the State’s Petition.

In the order issued January 30, 1992, the Ninth Circuit en

banc panel, this time by a vote of 8 to 3, denied the requests of

the State. The majority concluded that (1) the matter was not

moot, since, although the parties had agreed that Mr. Adamson

would testify, the death sentence had not yet been vacated; and

(2) staying of the mandate and reconsideration of the merits was

not appropriate in this case.® It is the second of these

conclusions that the State seeks to challenge in this Petition.

Subsequently, on February 12, 1992, the State filed yet

another "Motion for Rehearing and Suggestion For Rehearing Before

the Full Court" in the circuit. The entire court, composed of

all active, non-recused judges, voted on whether to rehear the

matter. That third motion for rehearing was denied, and the

suggestion for rehearing en banc before the full court was

rejected, on May 15, 1992. The May 15, 1992, order is attached

to this Opposition as Appendix B.

Cc. Present Status of the Parties.

John Adamson and the State entered into a plea agreement in

1977, which involved an exchange of cooperation, testimony and a

guilty plea for reduced charges and a sentence of years.

Ricketts v. Adamson, 482 U.S. at 4. Although that agreement came

unraveled under disputed circumstances, John Adamson has been

willing and able to fulfill his commitment under that agreement

since his obligations were clarified in 1980. See 483 U.S. at 7;

483 U.S. at 22 (dissenting opn. of Brennan, J.); Adamson v.

Ricketts, 865 F.2d at 1015.

As the State noted in its motion in the Ninth Circuit:

"On December 19, 1990, Adamson and

respondents entered into a ‘Stipulation and

Cooperation Agreement,’ which Adamson

* Although the Ninth Circuit did not stay the mandate, the

mandate was held during the pendency of the State’s motions. In

the January 30 order, the court directed that the mandate be

issued and it was issued on February 18, 1992.

5

attached as an exhibit to his state petition

for post-conviction relief filed that same

date. .. . Essentially, that agreement

provides that, if Adamson testifies

truthfully in the upcoming trials of Max

Dunlap and James Robinson [sic], respondents

will join in this motion to set aside the

conviction for first degree murder, and the

Geath penalty, and permit him to plead guilty

to second degree murder, thus reactivating

the original plea agreement of January 15,

1977, and his sentence under that agreement."

Motion to Vacate Judgment and Dismiss Appeal

as Moot, p. 2; see Petition Exhibit D.

The parties continue to abide by this agreement and pretrial

proceedings in the prosecution of Dunlap and Robison are moving

forward.

provided many hours of testimony in pretrial depositions,

John Adamson has been fully cooperative, has already

been transferred to federal custody.’

and has

-

its actions:

The State offers no explanation for the inconsistency of

it seeks reinstatement of the death sentence at

this level while it has entered into an agreement for a term of

years in exchange for testimony at the trial level. See

Petition,

Pp- ade

Ze

STATEMENT REGARDING JURISDICTION AND STANDARD

OF REVIEW

Because the Petition is an attempt to reargue the merits of

the previous certiorari proceeding years later, it is important

to note the jurisdictional limits and the standard of review

involved. The language of the petition asks this Court not only

to rule that the circuit was wrong in declining to reassess the

1988 opinion, but also asks the Court to dictate the result of

that reassessment.

Jurisdictionally, this proceeding concerns whether the

circuit court of appeals abused its discretion in declining to

reopen this case and stay enforcement of its decree. While the

nature and legal basis of the 1988 decision may be relevant to

this inquiry, the passage of time and the previous order of this

Court denying certiorari limits its jurisdiction as to the merits

of the 1988 decision. Toledo Scale Co. v. Computing Scale Co.,

261 U.S. 399, 418-419 (1923); see Federal Trade Commission v.

Minneapolis Honeywell & Co., 344 U.S. 206, 211-213 (1952). The

merits of the 1988 proceeding have been resolved; one certiorari

proceeding has occurred, and there is no jurisdiction in this

Court for another.

Rather, the proper method for arguing to this Court that it

failed to recognize the impact of recent opinions in denying a

petition for writ of certiorari is a petition for rehearing under

Rule 44. The decisions of Alabama v. Smith, 109 S.Ct. 2201

(1989) and Teague v. Lane, 109 S.Ct. 1060 (1989), which the state

7

maintains are "controlling," could have been discussed in a

rehearing petition in 1990. None was filed. Allowing the State

to represent its arguments on the merits now would circumvent

jurisdictional statutes and proper rehearing procedures. See

Federal Trade Commission, 344 U.S. at 211-213; Iverson v.

Commissioner of Internal Revenue, 257 F.2d 408, 409 (8th Cir.

1958).

In addition, the state has presented nothing to demonstrate

that the Ninth Circuit’s decision conflicts with any other court

of appeal or that this case involves any departure from the

“accepted and usual course of judicial proceedings" under Rule

10.1(a). Rather, the circuit courts are in complete agreement:

the decision of a circuit court to deny or grant a motion to

reopen a previous judgment is within the ambit of that court’s

discretion. See, e.g., Powers v. Bethlehem Steel Corp., 483 F.2d

963, 964 (1st Cir. 1973); American Iron and Steel Institute v.

E.P.A., 560 F.2d 589, 592 (3rd Cir. 1977), cert. denied, 435 U.S.

914 (1978); Hines v. Royal Indemnity Company, 253 F.2d 111, 113

(6th Cir. 1958); Zipfel v. Halliburton Co., 861 F.2d 565, 567

(9th Cir. 1988), cert. denied, 110 S.Ct. 1126 (1990); Johnson v.

Bechtel Association Professional Corp., 801 F.2d 412, 416 (D.C.

Cir. 1986). Like the question of whether a district court should

reopen its judgment under a Federal Rule of Civil Procecure 60(b)

motion, the circuit court’s decision regarding reopening of its

judgment is entitled to a great deal of deference. See Ackermann

v. United States, 340 U.S. 193, 197-198 (1950).

Two years ago this Court denied certiorari on the merits of

this matter, a majority of the justices voting on the question

declining to review the case. Three justices felt remand for

reconsideration in light of recent opinions, including Alabama v.

Smith, was necessary. No justice expressed the opinion that

reversal on the merits was warranted. Despite the tardiness of

the State’s prompting, the circuit court assessed its arguments

and objections to the final decision, declined to reopen the

matter, and wrote an order carefully setting forth the reasons

for its decision. In doing so, the circuit went well beyond what

was necessary, in effect providing the reassessment in light of

Alabama v. Smith requested by the dissenters in this Court. Yet

the State still complains, and now simply asserts that it is

entitled to reargue, in this Court, the legal questions it has

repeatedly lost.

Even allowing for rhetorical displays, it is simply

ridiculous to accuse the court below, as the State does, of

acting “in disregard of this Court’s authority as the supreme

tribunal of this land." Petition, p. 46. No abuse of discretion

is here, no conflict of federal courts and no important federal

question warranting invocation of this Court’s certiorari

jurisdiction.

II.

THE PRESENTATION OF NEW CASE LAW DOES NOT

CONSTITUTE SUFFICIENT EXCEPTIONAL

CIRCUMSTANCES TO WARRANT THE EXTRAORDINARY

STEP OF WITHHOLDING THE MANDATE AND REOPENING

A_JUDGMENT

Pursuant to procedural rule, a case in the United States

Court of Appeals ends when a mandate is issued. See Federal Rule

of Appellate Procedure 41; Johnson v. Bechtel Associates

Professional Corp., 801 F.2d at 415. The mandate issues 21 days

after the judgment, or 7 days after rehearing is denied, although

it may be stayed under Rule 41 until final disposition of a

petition for writ of certiorari in this Court. When an order

denying the request for certiorari is transmitted to the circuit

court, the mandate "shall issue immediately." Rule 41(b). No

statutory or procedural basis exists for the circuit to withhold

the mandate after certiorari has been denied; the issuance under

Rule 41 is an automatic ministerial act. See Bryant v. Ford

Motor Co., 886 F.2d 1526, 1529 (9th Cir. 1989), cert. denied, 110

§.Ct. 1156 (1990).

Nonetheless, as the court below recognized, there exists the

power to withhold the mandate, reopen and reexamine the judgment.

All federal courts have an inherent power to set aside a

previously "final" decision. This inherent power, established in

the English system "long before the foundation of our Republic"

enables a court, in rare instances, to correct an injustice

"deemed sufficiently gross" to demand a departure from adherence

to finality. Hazel-Atlas Glass Co. v. Hartford Empire Co., 322

10

U.S. 238, 244 (1944). The reopening of a judgment can take many

procedural forms; it is most common at the circuit level as a

motion to recall the mandate and most common at the district

level as a motion to set aside the judgment under Rule 60(b).

See Hazel-Atlas, 322 U.S. at 245; American Iron and Steel

Institute v. E.P.A., 560 F.2d at 589, 591-592; Greater Boston

Television Corporation v. F.C.C., 463 F.2d 268, 275-280 (D.C.

Cir. 1971).

Because of the importance of finality, however, this

exceptional power must be used sparingly. Otherwise, no judgment

would be immune from attack, no "settled" litigation truly final.

See Baldwin v. Iowa State Traveling Men’s Association, 283 U.S.

522, 525 (1931). This Court has therefore concluded that a

decision to recall the mandate should only occur where continued

allegiance to the previous judgment would be "manifestly

unconscionable."' Hazel-Atlas, 322 U.S. at 245; Hines v. Royal

Indemnity, 253 F.2d at 113; see also Ackermann v. United States,

340 U.S. 193, 199 (1950) [reopening a judgment under Rule 60(b)

requires “extraordinary circumstances"]. The law of the Ninth

Circuit and other circuits is in accord with the requirement that

only extraordinary, exceptional circumstances warrant such an

action. Zipfel, 861 F.2d at 567; Dilley v. Alexander, 627 F.2d

407, 410 (D.C. Cir. 1980); Verrilli v. City of Concord, 557 F.2d

664, 665 (9th Cir. 1977); Riha v. International Tel. and

Telegraph, 533 F.2d 1053, 1055 (8th Cir. 1976); Powers v.

11

Bethlehem Steel Corp., 483 F.2d at 964; Greater Boston Television

Corporation v. F.C.C., 463 F.2d at 268, 277.

In Hazel-Atlas, this Court found such unconscionable

circumstances. There, the Court found that the court of appeal’s

original judgment rested on "a deliberately planned and carefully

executed scheme to defraud" the court. 322 U.S. at 245. Under

such circumstances, this Court held, the court of appeal had not

only the power but the duty to set aside its previous judgment

upon conclusive proof of such fraud.

While deliberate fraud, as in Hazel-Atlas, provides an

example of a situation where reopening the judgment is warranted,

mere disagreement with the legal basis for the prior judgment is

obviously insufficient for this extraordinary act. A claim of

erroneous legal ruling is not enough to reopen a previously

rendered judgment. Powers v. Bethlehem Steel Corp., 483 F.2d at

964; Hines v. Royal Indemnity Co., 253 F.2d 111, 114 (7th Cir.

1958); Iverson v. Commissioner of Internal Revenue, 257 F.2d at

409; Plotkin v. Pacific Tel. and Tel. Co., 688 F.2d 1291, 1293

(9th Cir. 1982) [Rule 60(b)].

Applying these principles to this case, the State has failed

to make any sufficient showing of the exceptional circumstances

necessary to compel the circuit to reopen the matter. Petitioner

simply argues that the court below should have reopened the

judgment, and then, arguing that the court was wrong not to,

leaps to the conclusion that this decision was an abuse of

discretion. See, e.g., Petition at p. 23, 46. Such an approach

12

misconstrues the legal standard. The question is not whether the

Ninth Circuit could have reopened its judgment -- the panel below

clearly recognized that it had that power -- or even whether it

should have. The question is whether it acted within its

discretion in declining to take the extraordinary step of

reopening and reconsidering a final, settled judgment.

Petitioner has not presented anything here or below remotely

resembling the "deliberate fraud" type of situation of Hazel-

Atlas. No new facts warranting the reopening of the judgment

have been presented. Indeed, the only new facts -- the

prosecution of Dunlap and Robison below with the cooperation of

Mr. Adamson and the return to the plea agreement -- counsel

against prolonging this litigation. Rather, the petitioner is

simply arguing that the lower court should withhold the mandate

and reopen the proceedings below to reconsider the issues in

light of new case law. It is surely within the circuit court’s

discretion, having already denied one motion for rehearing and

watched this Court deny certiorari, to decline that request. See

Riha v. International Tel. and Telegraph, 533 F.2d at 1055;

Hines, 253 F.2d at 114.

Indeed, the exercise of discretion below was considered and

calm: the circuit invited briefing and, although it was not

necessary to do so, set forth the reasons for its disinclination

to reopen the matter. The court below recognized that the

broader constitutional issues addressed in Walton and Jeffers

13

overruled the inconsistent language in the 1988 opinion.* The

court below also recognized that two case-specific and narrow

holdings, on the issues of judicial arbitrariness and

prosecutorial vindictiveness, were unaffected by the subsequent

decisions cited by the State. The State may still feel (and

apparently does) that those issues were wrongly decided, but the

presentation of old arguments in new guises hardly compels the

extraordinary act of reopening a final decision.

* Such recognition was unnecessary: the Ninth Circuit had

already noted the effect of Walton and Jeffers opinion ina

mumber of cases. See, e.g., Clark v. Ricketts, 958 F.2d 851, 859

(9th Cir. 1991); Mata v. Ricketts, 937 F.2d 467, 469 (9th Cir.

1991); Smith v. McCormick, 914 F.2d 1153, 1169-1170 (9th Cir.

1990).

14

Iit.

EVEN IF PETITIONER’S LEGAL ARGUMENTS ARE

CONSIDERED, CERTIORARI IS NOT WARRANTED

The circuit court below made it clear that the subsequent

cases asserted by the State as "controlling" did not dictate a

change in the result. Implicitly, the court therefore indicated

that, even if it agreed that the mandate should be stayed and the

case reexamined, the result would be the same. In this

certiorari proceeding, the State argues that the circuit below

was incorrect in this assessment, that the application of Alabama

v. Smith and Teague v. Lane would have altered the result below’

and that, for some reason, certiorari is warranted to cure the

situation. The State is incorrect.

A. The Subsequent Opinion of Alabama v. Smith Does Not

Compel Reexamination of the 1988 En Banc Judgment.

Both the prosecutorial vindictiveness and judicial

arbitrariness issues are unaffected by the Court’s decision in

Alabama v. Smith, 109 S.Ct. 2201 (1989). Since either of these

claims alone is sufficient to require reversal of Mr. Adamson’s

death sentence, the State has failed completely in demonstrating

that adherence to the 1988 decision is in any way “unfair."

* In its July, 1990 motion for rehearing and motion to stay

the mandate, the State argued that the 1988 en banc decision

should be reassessed in light of three "controlling" opinions,

Walton, Jeffers and Alabama v. Smith. See Appendix A to this

Opposition. It was only in October 1990, after additional

briefing was submitted, that the State alleged that Teague v.

Lane was also "controlling." In this proceeding, the State now

relies on Alabama v. Smith and Teague v. Lane.

15

Li Prosecutorial Vindictiveness.

Alabama v. Smith was a non-capital case where a defendant

moved to withdrew his previous guilty plea and went to trial. At

sentencing, the trial judge, noting new information disclosed at

trial, selected a sentence in excess of the original plea

bargain. -This Court held that the mere fact that a defendant had

successfully moved to vacate his guilty plea did not, itself,

raise the automatic "presumption of vindictiveness" under North

Carolina v. Pearce, 395 U.S. 711 (1969).

Smith’s holding was fully consistent with the holding in

the 1988 en banc Adamson decision: exactly like the court in

Smith, the en banc majority found "the evidence insufficient to

show that Adamson’s death sentence was vindictively imposed by

the sentencing judge." 865 F.2d at 1017. The Ninth Circuit’s

decision to reverse did not rest on the automatic presumption of

vindictiveness rejected by Smith, but on "a significant

possibility of actual vindictiveness surrounding the State’s

decision to seek the death penalty" based on the specific facts

of the case. 865 F.2d at 1018-1019."

This distinction was obvious to another, unanimous, panel of

the Ninth Circuit in Taylor v. Kincheloe, 920 F.2d 599, 606 n.10

(9th Cir. 1990): “While Adamson involved the reinstatement of

higher charges after a plea was set aside, the court’s decision

in that case rested on its finding that special circumstances

10 Smith itseif reserved the question of actual

vindictiveness, and remanded that issue to the Alabama Supreme

Court. 109 §.Ct. at 2206-2207.

16

surrounding the reinstatement so strongly indicated actual

vindictiveness as to raise a presumption of vindictiveness...

The court did not hold that such a presumption is raised in all

cases where the original charges are revived after a plea is

vacated."

Thus, even if Alabama v. Smith were to be applied

retroactively to the 1988 decision, it does not show it to be

“demonstrably wrong."

2. Judicial Arbitrariness.

This question was decided in the 1989-1990 certiorari

proceeding. The State specifically sought review of the judicial

arbitrariness question. See Petition for Certiorari, no. 88-

1553, at 19-22. That relief was denied. Three Justices, in

noting that they would vacate and remand, apparently felt the

Smith opinion warranted some reexamination of the circuit’s

conclusions. However, four Justices disagreed, and three of

those four -- Justices Brennan, Blackman and Stevens -- joined

the opinion of the Court in Alabama v. Smith. See 109 S.Ct. at

2202. Those justices apparently saw a sufficiently clear.

distinction between this case and Smith to make a remand to the

circuit court unnecessary.'' If the State thought such a

conclusion was indefensible, it could have applied for rehearing

1 It is also noteworthy that, in the 1988 en banc opinion,

five judges dissented from the majority on this issue. (Judge

Boochever filed a concurrence, noting that relief was warranted

on the other grounds but declining to join the judicial

arbitrariness holding.) In the latest proceeding, only three of

those five agreed that the Court’s discretion should be exercised

in favor of reopening the case in light of Smith.

17

under Rule 44. It did not. This latest certiorari petition

merely reargues the same point.

The 1988 judicial arbitrariness decision was squarely based

on the Eighth and Fourteenth Amendments. 865 F.2d at 1020. The

opinion carefully distinguished the due process/ vindictiveness

issue, the issue later addressed in the non-capital Smith case,

in holding that the special restrictions applicable in capital

sentencing were the foundation for the holding. 865 F.2d at 1017

n.3, 1020. This distinction is hardly novel. See Maynard v.

Cartwright, 486 U.S. 356, 361 (1988); Turner v. Murray, 476 U.S.

25, 31 (1986).

B. The Subsequent Decision of Teaque v. Lane Does Not

Compel Reexamination of the 1988 En Banc Judgment.

The State’s position is extraordinary: it urges this Court

to hold that it is an abuse of discretion for a circuit court to

refuse to reopen a pre-Teague decision granting habeas relief,

apply Teague, and revoke that relief. It is not mere hyperbole

to suggest that such a holding would result in a flood of

requests to recall the mandates in countless cases, decided

before Teague, that granted habeas relief. The adoption of the

State’s position would shatter any traditional notion of

finality.

The State harshly attacks the Ninth Circuit for "ignoring"

4

eague v. Lane. Petition, p. 46. A review of the record of this

litigation demonstrates, however, that it was the State that

"ignored" Teague, failing to raise any retroactivity objection in

a timely manner.

18

The en banc decision was issued on December 22, 1988, and

rehearing was denied on February 1, 1989. At no time in that

proceeding did the State raise any retroactivity question or

attack the federal court’s collateral power to address the habeas

issues.

Obviously the retroactivity principles of the plurality

opinion in Teague were not applied by the Ninth Circuit in 1988

because Teague had not been decided.'* However, Teague was

decided at the time the State filed its March, 1989 petition for

writ of certiorari, and the State failed to raise any

retroactivity objection.

During the pendency of that certiorari petition, all the

"lS were decided,

cases the State now cites as Teague’s "progeny

and the State did not bring them to this Court’s attention.

Despite filing a reply brief and other supplemental authorities

to the certiorari petition, the State made no mention of

Teague.’ The State had a further opportunity to argue Teague’s

2 The Teague opinion came out on February 22, 1989. 109

S.Ct. 1060. A plurality of the Court adopted a modified version

of the retroactivity doctrine previously endorsed by Justice

Harlan in his opinions in Desist v. United States, 394 U.S. 244

(1969) (dissent) and Mackey v. United States, 401 U.S. 667 (1971)

(separate opn.).

3 penry v. Lynaugh, 492 U.S. 302 (1989); Butler v.

McKellar, 494 U.S. 407 (1990); Saffle v. Parks, 494 U.S. 464

(1990); Sawyer v. Smith, 110 S.Ct. 2822 (1990).

4 Counsel have a duty to keep the Court apprised of “any

development which may conceivably affect an outcome." Fusari v.

Steinburg, 419 U.S. 379, 391 (1974) (conc. opn. of Burger, C.J.);

see USSC Rule 15.7.

19

"controlling" nature in a rehearing petition after certiorari was

denied, but did not.

Even after the certiorari proceeding concluded, in its

Original group of motions requesting rehearing of this case filed

in July, 1990, the State did not raise Teague, but requested

withholding the mandate and reconsideration in light of Walton,

Jeffers and Alabama v. Smith only. See Appendix A. Again, the

opportunity to raise the issue was present, again the State made

no mention of Teague.

Finally, in the suppiemental briefing in the circuit, in

October of 1990, the State, for the first time, raised a

retroactivity objection and Teague concerns. It is hardly an

abuse of discretion for the circuit to decline to consider the

Teague contention raised "at this late stage." 955 F.2d at 620.

Various other courts have justifiably declined to address tardy

Teague objections in far less egregious situations. See Williams

v. Dickson, F.2d , 1992 Westlaw 46072 (4th Cir. 1992);

Thomas v. Indiana, 910 F.2d 1413, 1415-1416 (7th Cir. 1990);

Falconer v. Lane, 905 F.2d 1129, 1137 (7th Cir. 1990); Hanraha

v. Green, 896 F.2d 241, 245 (7th Cir. 1990); see also Zant v.

Moore, 109 s.ct. ‘isi9, 1520 (1989) (dis. opn. of Blackman, J.).

Ultimately, however, the State’s position is absurd. Teague

represented a marked departure from prior habeas law, and, with

its progeny, constructed a retroactivity analysis wholly new to

habeas procedure. Yet the State’s position is that a federal

court cannot refuse to reopen a pre-Teague case to apply Teague.

20

Such a holding would subject every instance of pre-Teague habeas

relief to reevaluation. To set forth this argument is to

demonstrate its absurdity.

N

~

CONCLUSION

In 1988, a federal court set aside John Adamson’s death

sentence. Since then, the State and Adamson have arrived at an

understanding and the State is now prosecuting Max Dunlap and

James Robison for the murder of Don Bolles, with Mr. Adamson’s

aid, and the parties have returned to the original plea agreement

which gave Mr. Adamson a term of years. Also since then, despite

the change in circumstances, the State has gone to extraordinary

measures attempting to get the 1988 decision overturned.

Certainly, the State was entitled to seek rehearing and

petition for certiorari from the 1988 opinion in an attempt to

demonstrate that decision incorrect. It took full advantage of

those avenues. It is-entitled to nothing more. Yet, the circuit

court gave thorough, detailed consideration to the State’s

request to reopen the previous decision and, in a judicious and

specifically chronicled application of its discretion, declined

to do so. After having once petitioned for certiorari and having

filed no less than three motions for rehearing in the circuit,

the State now files this petition, again asking that the 1988

opinion be overturned. In doing so, the State urges adoption of

an incredible rule -- that final decisions must be reopened to

apply subsequent legal developments -- cavalierly ignoring the

effect of such a rule on the principles of finality and the

caseload of the federal courts.

In this context, respondent notes that, in Engle v. Isaac,

456 U.S. 107, 127 (1982) and again in the recent opinion of

22

Coleman v. Thompson, 111 S.Ct. 2546, 2564 (1991), this Court

quoted with approval the words of Justice Harlan from his dissent

in Sanders v. United States, 373 U.S. 1, 24-25 (1963):

"Both the individual criminal defendant and

society have an interest in insuring that

there will at some point be the certainty

that comes with an end to litigation, and

that attention will ultimately be focused not

on whether a conviction was free from error

but rather on whether the prisoner can be

restored to a useful place in the community."

The circuit did not abuse its discretion in deciding that

such a point has come in this case. Certiorari should be denied.

DATED this 2nd day of June, 1992.

Re tfull bmitted

spec y submi be

Yai

en 7. rouse (7

Street

900 North Poin

Suite 45 ocoa Building

San Francisco, CA 94109

TIMOTHY K. FORD

MacDonald Hoague & Bayless

4500 Hoge Building

Seattle, WA 98104

*Counsel of Record

Attorneys for Respondent

John H. Adamson

23

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE

NO.

JOHN HARVEY ADAMSON,

Petitioner-Appellant,

-vs-

JAMES G. RICKETTS, et al.,

Respondents~-Appellees.

IN THE

NINTH CIRCUIT

84-2069

ON APPEAL FROM THE

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA,

NO. CIV. 83-2323 PHX. (CAM)

ll el el el i i i

MOTION FOR REHEARING AND SUGGESTION FOR REHEARING

BEFORE FULL EN BANC COURT

ROBERT K. CORBIN

Attorney General of

the State of Arizona

JESSICA GIFFORD FUNKHOUSER

Chief Counsel

Criminal Division

JACK ROBERTS

Assistant Attorney General

Department of Law

1275 W. Washington, lst Floor

Phoenix, Arizona 85007

Telephone: (602) 542-4686

Attorneys for RESPONDENTS-APPELLEES

to

UNITED STATES COURT OF APPEALS

Petitioner-Appellant, ON APPEAL FROM THE

UNITED STATES DISTRICT COURT

es FOR THE DISTRICT OF ARIZONA,

NO. CIV. 83-2323 PHX. (CAM)

JAMES G. RICKETTS, et al.,

Respondents-Appellees.

)

)

)

)

)

)

)

)

)

For reasons stated in the following memorandum, respondents

’

respectfully petition for rehearing pursuant to Rule 40(A)

Federal Rules of Appellate Procedure, and for rehearing before

the full en bane Court pursuant to Rule 35-3, Rules of the

DATED this 9th day of July, 1990.

Respectfully submitted,

ROBERT K. CORBIN

Attorney eral

ACK ROBERTS

Assistant Attorney General

Attorneys for RESPONDENTS-APPE

Ninth

LLEES

1 MEMORANDUM

9 A petition for rehearing requires that tne moving party

3 state with particularity the points of fact or law

4 misapprehendead by the Court. Rule 40(A), Fed. R. App. P.

: This Court has said that subsequently issued controlling

6 legal opinions are a valid basis upon which to seek

7 rehearing. Armster v. United States District Court, 806 F.2d

8 1347, 1357 (9th Cir. 1986).

9 The United States Supreme Court's decisions in Walton v.

10 Arizona, No. 88-7351 (June 27, 1990), Lewis v. Jeffers,

il No. 89-189 (June 27, 1990), and Alabama v. Smith, 490 U.S.

12 __, 109 S. Ct. 2201, 104 L. Ed. 2d 865 (June 12, 1989), were

13 all rendered after this Court denied rehearing February 3,

14 1989. These cases are controlling on every point upon which

15 this Court ruled and call for a result contrary to that

16 reached by the majority.

17 It is clear that Walton held that Arizona coulda

18 constitutionally: (1) have judges determine the penalty

19 instead of jurors; (2) place the burden of producing

20 mitigation upon the defendant; (3) apply its especially

2) cruel, heinous or depraved circumstance. Lewis v. Jeffers

22 limited the authority of a federal court to review the

23 application of an aggravating circumstance to whether any

24 rational trier-of-fact could have found it to exist -- a

25 standard not applied by this Court. Alabama v. Smith stated

26 that no presumption of vindictiveness arises when the first

=j-

sentence was based upon a guilty plea, and the second

sentence followed a trial -- precisely the opposite

conclusion reachea by the majority in this case. It makes no

sense to remand for a hearing on a presumption of

vindictiveness when the Supreme Court has said no Such

presumption arises when the heavier sentence follows a trial

ana the first sentence was based upon a guilty plea.

The Court will also recall the 6-5 split upon the issue

of alleged arbitrary sentencing to death by the same trial

court that earlier sentenced Adamson to a term of years under

the plea agreement.

Since subsequent controlling legal authority plainly

contradicts this Court's conclusions in this case, this

Court, out of a sense of fairness and the orderly

administration of justice, ought to grant a rehearing before

the full en banc Court and reverse the decision of

December 1988.

DATED this 9th day of July, 1990.

Respectfully submitted,

ROBERT K. CORBIN

torney Gengxal

Assistant Attorney General

Attorneys for RESPONDENTS-APPELLEES

COPIES of the foregoing mailed

this 9th day of July, 1990,

TIMOTHY K. FORD

MacDonald, Hoague & Bayless

1500 Hoge Building

Seattle, WA 98104

TIMOTHY J. FOLEY

345 Franklin Street

San Francisco, CA 94102

bub A Aman

to:

DEBORAH R. LEMONS

CR26-157/4048D/dri (M)

APPENDIX B

NOT FOR POBLICATION F | | :

UNITED STATES COURT OF APPEALS D

FOR THE NINTH CIRCUIT MAY 15 1992

CATHY A CATTERSON. CLERK

U.S. COURT OF APPLALS

JOHN HARVEY ADAMSON,

No. 84-2069

Petitioner-Appellant,

D.C. No. CV-83-2323-PHX

Ve

SAMUEL A. LEWIS, Director,

Arizona Department of

Corrections, et 4al.,

ORDER

Respondents-Appellees.

Appeal from the United States District Court

for the District of Arizona

Before: HUG, SCHROEDER, PREGERSON, ALARCON, FERGUSON,

D.W. NELSON, BOOCEHEVER, NORRIS, BEEZER, BRUNETTI,

and THOMPSON, Circuit Judges.

A majority of the judges on the panel have voted to deny

the petition for rehearing and to reject the suggestion for

rehearing en banc before the full court.

The full court was advised of the suggestion for

rehearing en banc before the full court, and an active judge

requested a vote on whether to rehear the matter. The matter

Oo

failed to receive a majority of the votes of the nonrecused

active judges in favor of full court en banc consideration.

Fed. R. App. P. 35.

The petition for rehearing is denied and the suggestion

for rehearing en banc before the full court is rejected.

BEST AVAILABLE COPY

I, Timothy J. Foley, a member of the Bar of this Court,

hereby certify that on June 2, 1992, a copy of this Opposition to

Petition for Writ of Certiorari to the United States Court of

Appeals for the Ninth Circuit was mailed, first-class postage

prepaid, to: Jack Roberts, Assistant Attorney General of the

State of Arizona, 1275 W. Washington, Phoenix, Arizona 85007.

-

Vago 3) pouey