# Opposition Brief — Lewis v. Adamson

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_0624%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1992
- **Citation:** 505 U.S. 1213

## Text

qn" JUN 2 1992 |

OFFICE UF Th
RE ce, ED
J,
meer ’ 1999
Ce -.
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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_0624%3A2. Public record. Not legal advice.