Amicus Curiae Brief — Vasquez v. Thompson

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&S No. 91-1930

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“ S Supreme Court of the United States

OCTOBER TERM, 1992

DANIEL VASQUEZ,

Warden, San Quentin State Prison,

Petitioner,

VS.

ROBERT JACKSON THOMPSON,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

MOTION FOR LEAVE TO FILE AND

BRIEF AMICUS CURIAE OF THE CRIMINAL

JUSTICE LEGAL FOUNDATION IN SUPPORT OF

THE PETITION FOR WRIT OF CERTIORARI

es

——— -_——

KENT S. SCHEIDEGGER

CHARLES L. HOBSON*

Criminal Justice Legal Fdn.

2131 L Street (95816)

Post Office Box 1199

Sacramento, CA 95812

Telephone: (916) 446-0345

Attorneys for Amicus Curiae

Criminal Justice Legal Foundation

*Attorney of Record

BBEST AVAILABLE COPY

QUESTION PRESENTED

Does a federal district court have jurisdiction to stay

the execution of a state death penalty judgment prior to

the filling of a habeas corpus petition?

|

IN THE

Supreme Court of the United States

OCTOBER TERM, 1992

DANIEL VASQUEZ,

Warden, San Quentin State Prison,

Petitioner,

VS.

ROBERT JACKSON THOMPSON,

Respendent.

MOTION OF AMICUS CURIAE FOR LEAVE

TO FILE BRIEF IN SUPPORT OF THE PETITION

FOR WRIT OF CERTIORARI

Pursuant to Supreme Court Rule 37.2, the Criminal

Justice Legal Foundation respectfully moves for leave to

file the accompanying brief amicus curiae in support of the

petition in the above captioned case. Counsel for petition-

er has consented, but counsel for respondent has refused

consent.

In the accompanying brief, amicus argues that the

Anti-Injunction Act prohibits stays of execution of state

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

§ 2251. That section only authorizes a stay when habeas

corpus proceedings are “pending.” Proceedings are

pending only after the petition is filed.

INTEREST OF AMICUS CURIAE

The Criminal Justice Legal Foundation (CJLF) is a

non-profit California corporation organized to participate

iv

in litigation relating to the criminal justice system as it

affects the public interest. CJLF seeks to bring the due

process protection of the accused into balance with the

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

reliable determination of guilt and swift execution of

punishment.

The federal district courts in California have needlessly

delayed enforcement of the state’s death penalty, reducing

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

tool that the district courts have used for the inexcusable

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

are contrary to the rights of victims and society which

CJLF was formed to advance.

For the foregoing reasons, amicus requests leave to file

its brief.

October, 1992

Respectfully submitted,

CHARLES L. HOBSON

Attorney for Amicus Curiae

Criminal Justice Legal Foundation

TABLE OF CONTENTS

AQUCRMOR POOOMIED . wk ee te tenes

Motion for leave to file .....................

Table of authorities............. ge 1.

Brief amicus curiae ............ lace cas oe

Summary of facts and case....................

nny On MUONS oo oe eee

ei eR EE Te Ee EP OE os

Section 2251 is the sole authority for staying a state

isin cioeica: RE EE Te en ee ent Puneet

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

Rae Pane ee Oe oe ec ee ae eee

Es We Re Wis es kn Se ee

2. Supreme Court stays ...............

II

The application for stay and counsel cannot be

“deemed” to be a petition .................

A proceeding is “pending” under § 2251 when the

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

A. Civil cases generally .................

B. Habeas corpus cases .................

(v)

vi

Frectical aiiermatves CREME css or cd kc ee eae 18

Demosthenes v. Baal accurately summarizes the

CRITI DOU «ee ee ws 20

PP) Re Me teRlin Prana Syn ogc piater lol hrs 20

Vil

TABLE OF AUTHORITIES

Cases

Amalgamated Clothing Workers of America v.

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

isk 2 Ro. . | nr ee ee ne 2 rr 4

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

Re ee I ow ik pe he ee ed hie has 19

Atlantic Coast Line R. Co. v. Brotherhood of

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

oe ee) a 4,9, 18

Baldwin County Welcome Center v. Brown,

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

ee ee ee re 10, 11, 15, 19

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

PP PRRs RD, 8 ook ks ee eo ee wh 13, 15, 17

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

ie eee 0) og, or a ee 15, 16

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

Fre I sd ko 6 ee oe ee bo Vo 8 ND 12

Brown v. Vasquez, 743 F. Supp. 729

ee I ohn iin be Cae oe kes a eS

Brown v. Vasquez, 952 F. 2d 1164

geet MRE oe kh hs A ed wee 2, 3, 16, 18, 19

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

eee ee i) ere aes re 18

Continental Illinois National Bank v. Chicago,

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

Se ee eee eee 8

Demosthenes v. Baal, 495 U. S. 731, 109 L. Ed. 2d 762,

Eee a Mee ee CE bs a ole a OR NS 7, 13, 20

Vill |

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

tee Bee oe i | er ear 15, 17

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

Fh Se Se EEE sda nis pares be ke es 18

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

ee ee oi) er eee rere e 18

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

Pt eee, Ne oe wn ie os oo 08 pre Fs 13

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

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

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

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

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

oe ee) ee ee ee ae ee 13

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

SD! eres eee ae eae 4

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

Pee ef ee ee ree 12

Horton v. California, 496 U. S. 128, 110 L. Ed. 2d 112, |

op eee 8 ee ere re eee 7 |

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

eg Boe | Fi ee a ee re 17

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

a Te a EE oS ok Hen wea oe wal 14, 15

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

oe Be ep ee eee 4

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

Of ha toe ce ee a Fe Ree) O58 a se ees 5, 8

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

oe ae ee Ee wee ee ee 15, 17

nm |

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

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

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

bg ee | a 19

Parsons Steel, Inc. v. First Alabama Bank,

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

Re PO ig vaso aek-k how bs BOP 5

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

ee se PRO AEOOND os vec ov sve hecavaccaes 18

People v. Thompson, 50 Cal. 3d 134, 266 Cal. Rptr. 309,

fe ae fee. |) ee are ee I

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

eR ts 19

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

oe kc | Ae 16

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

86 L. Ed. 116, 62 S. Ct. 154 (1941) ............ 5

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

DO a nehinrd os oo ed Vpn daw koa 6 a e's 10

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

We ee A EE oS occ cc ec ees 15

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

oe ee 17

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

OO L. Ea 100, G23. Ce 199 (1941)... .........

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

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

Whitmore v. Arkansas, 495 U. S. 149,

109 L. Ed. 2d 135, 110 S. Ct. 1717 (1990) ...... 12

Whitney Nat. Bank v. Bank of New Orleans &

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

Pe Se Sos ee ROE 8 6. o'h vod vos NS Cb Ks 8k 8

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

Pe ee te CO ROTOR beac cheek eee eh wees 4,7

United States Statutes

Be le es Gs EE a 6k Sh o's bo oe a nee 19

RE ee PN ee ee ieee wae a ear 8

ae ee a oh es ales 85 eae aes 5

yeh oe | Pa eee re eer ere oe 9

tie Le >| | eee eee eee ee eee ree 11

ae oe a eee ee re 12

ra ye Oe! Pe ee ee re ere eee ray 17

Sea ee ee iia weak bw ee ye Se

es ee a ee es ee en 3

ote eee tL) ere 19

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

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

California Statutes

oe fe a Sree ee reer re 18

ee eee ee eee ee 16

Federal Rules of Court

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

Rule 8 ... 10, 11, 12

8) Sen 12

Rules Governing Section 2254 Cases in the United

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

TE cv as ew a e's sh eh ao 17

gk ) ree ere ee 16

Rules of the Supreme Court, Rule 13.1 ......... 18

California Rules of Court

Supreme Court Policies Regarding Cases Arising from

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

of Court 262-265 (1992 Supp.) ........... 16, 18

Treatises

J. Liebman, Federal Habeas Corpus Practice and

FOOT CD = he dink ok SO eee ES 12, 13, 14

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

Ce Oe SE a kk 8 ne 0a x 06 le ee e's 14

Miscellaneous

Advisory Committee Note to Rule 4 of the Rules

Governing Section 2254 Cases in the United States

RE I or ee ns i bo 12, 17

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

Corpus in Capital Cases: Committee Report and

PURO EOED AS OK SK ARMA DESO es 17, 19

Revision Note to 28 U. S. C. § 2283 ........... 5. 6

IN THE

Supreme Court of the Qnited States

OCTOBER TERM, 1992

DANIEL VASQUEZ,

Warden, San Quentin State Prison,

Petitioner,

VS.

ROBERT JACKSON THOMPSON,

Respondent.

oo a

BRIEF AMICUS CURIAE OF THE

CRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF THE PETITION

FOR WRIT OF CERTIORARI

—

SUMMARY OF FACTS AND CASE

On August 25, 1981, Robert Thompson forcibly

sodomized and strangled Benjamin Brenneman, a 12-year-

old newspaper carrier. People v. Thompson, 50 Cal.'3d

134, 148, 785 P. 2d 857 (1990). Thompson was convicted

of the murder and sentenced to death. On February 8,

1990, the California Supreme Court unanimously affirmed

the conviction and sentence. /d., at 187-188. On March

29, 1990, the California Supreme Court denied his petition

for rehearing in an unpublished order.

On October 1, 1990, this Court denied Thompson’s

certiorari petition. On October 30, 1990, the Orange

County Superior Court set an execution date of December

28, 1990.

On December 5, 1990, Thompson filed in federal

district court a request for counsel and a stay of execution.

The request stated that he intended to file a habeas

corpus petition with the District Court that would raise

constitutional errors. The District Court issued a 45-day

stay. The District Court granted two 30-day extensions of

the stay, and on March 21, 1991, appointed counsel for

Thompson. On March 28, 1991, the District Court denied

the Attorney General’s motion to vacate the stay of

execution. The Ninth Circuit affirmed the District Court

in an unpublished memorandum opinion, citing its deci-

sion in Brown v. Vasquez. The Attorney General has filed

a petition for a writ of certiorari.

SUMMARY OF ARGUMENT

The Anti-Injunction Act is a strict prohibition of

federal interference with state court proceedings, subject

only to a few narrowly construed exceptions. No excep-

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

corpus.

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

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

meet the minimal showing required by statute and rule

cannot be “deemed” to be a petition.

Although not essential to a jurisdictional analysis, it is

worth noting that practical alternatives to pre-filing stays

exist. Potentia! petitioners can apply for counsel immedi-

ately upon exhaustion of state remedies. Prompt applica-

tion will provide counsel sufficient time to place all

exhausted claims in petition form and obtain a stay.

ARGUMENT

In the case below the Ninth Circuit relied upon its

prior decision in Brown v. Vasquez, 952 F. 2d 1164 (1991)

to uphold pre-habeas stays of execution. Therefore, this

decision and the District Court’s decision in the same

case, see Brown v. Vasquez, 743 F. Supp. 729 (1990), will

be the focus of the analysis. This Court’s denial of

certiorari in Brown should not preclude certiorari for the

a eo

present case. Brown had filed a habeas petition before

the Ninth Circuit affirmed the stay, raising a mootness

question. The present case does not have this problem, as

Thompson has not yet filed a habeas petition.

In Brown, the District Court found that it had authori-

ty to issue a stay independently of the habeas stay provi-

sion, 28 U. S. C. § 2251, basing its decision on the All-

Writs Act, 28 U. S.C. § 1651(a). Brown v. Vasquez, 743

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

did not even mention the Anti-Injunction Act, 28 U. S. C.

§ 2283.'

Apparently recognizing the flaw in the District Court’s

position, the Court of Appeals in Brown instead construed

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

The Court of Appeals notes, correctly, that section 2251

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

1169. Neither the state nor amicus says that it is not. The

sole question on this approach is whether section 2251

applies prior to the filing of a petition.

Part I of this brief addresses the theory that power to

stay exists independently of section 2251. Part I] examines

the contention that papers filed prior to the actual petition

can be “deemed” to be a petition for the purpose of

issuing a stay. Part III examines the Brown court’s theory

that section 2251 authorizes pre-filing stays.

I. Section 2251 is the sole authority for

staying a state execution.

A. The Anti-Injunction Act.

“A court of the United States may not grant an

injunction to stay proceedings in a State court except as

expressly authorized by Act of Congress, or where neces-

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

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

1. In the present case, Thompson made a similar argument to the Ninth

Circuit. See Appellee’s Brief at 6-25.

is a state court proceeding within the meaning of this

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

This Congressional command is fundamentally differ-

ent from judicially created doctrines of abstention, such as

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

statute conveying a broad general policy for appropriate

ad hoc application. Legislative policy is here expressed in

a clear-cut prohibition qualified only by specifically defined

exceptions.” Amalgamated Clothing Workers of America v.

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

added).

This Court has strictly enforced the Act and narrowly

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

an absolute prohibition against enjoining state court

proceedings, unless the injunction falls within one of three

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

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

(1970) (emphasis added).

In Atlantic Coast Line, the respondents “intimated that

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

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

The Court emphatically rejected that contention and held

“that any injunction against state court proceedings

otherwise proper under general equitable principles

must be based on one of the specific statutory

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

over since the statutory prohibition against such

injunctions in part rests on the fundamental consti-

tutional independence of the States and their

courts, the exceptions should not be enlarged by loose

statutory construction.” Id., at 287 (emphasis

added).

The essence of the District Court’s opinion in Brown

is that a federal court can stay state proceedings “if it is

necessary to preserve [the federal] court’s potential

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

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

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

jurisdiction.” 743 F Supp., at 317 (emphasis added).

There is no such exception to the Anti-Injunction Act.

The page limit on this brief does not permit an

extended discussion of the history of the Anti-Injunction

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

Appeals in the present case. Briefly, however, there are

only three exceptions in the Act. They are (1) exceptions

expressly created by Congress, (2) injunctions “in aid of

[the federal court’s] jurisdiction,” and (3) injunctions “to

protect or effectuate its judgments.”

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

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

clearly inapplicable, because there is no judgment to

protect or effectuate.’

This leaves the “aid of jurisdiction” exception. Where

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

jurisdiction of the res, this exception authorizes the court

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

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

federal court which has already issued an injunction in a

case within its jurisdiction to enjoin the issuance of later,

contrary injunctions by state courts. Looney v. Eastern

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

“federal courts to stay proceedings in State cases removed

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

§ 2283, at 445 (1988 ed.)

The exception definitely does not authorize a federal

court to stay a state action merely to insure that the

controversy will be determined in federal court rather than

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

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

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

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

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

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

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

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

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

(Reed, J., dissenting).

restored the law “as generally understood and interpreted

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

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

refutes the notion that a federal court has carte blanche

authority to preserve the status quo against state court

action. The parties in that case had filed breach of

contract and antitrust suits in state and federal court,

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

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

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

dants, id., at 641.

The Federal District Court enjoined execution of the

state judgment, relying on two independent bases of

jurisdiction. First, the court believed that the injunction

section of the Clayton Act was an express exception to the

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

collection efforts would eliminate two of the three plain-

tiffs and thus that the injunction was necessary to protect

the jurisdiction of the court, within the meaning of that

exception to § 2283.” Id., at 629.

Five Justices explicitly rejected the antitrust ground of

jurisdiction on the facts before the Court. The majority

was divided on the question of whether the Clayton Act

could be an exception under other circumstances, howev-

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

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

On the second ground, the plurality relied on Kline,

supra, and emphatically rejected the notion that preserva-

tion of the “case or controversy” constitutes an exception

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

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

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

exception; neither have the parties directed us to any

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

The concurring Justices expressed no disagreement

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

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

holding was flawed. Ibid.

hncceneeiinemineiaiadieneemammaiiienl

point, which was necessary to the judgment in which they

concurred. Vendo can therefore be considered a majority

holding on this point. Cf. Horton v. California, 496 U. S.

128, 136 (1990) (statement in plurality opinion not binding

because unnecessary).

In summary, the Anti-Injunction Act is an absolute

prohibition, not a discretionary admonition. The rule is

broadly construed, and the exceptions are narrowly

construed. The “aid of jurisdiction” exception-is limited

to its historical functions of enforcing the removal statutes,

implementing previously entered decrees in pending cases,

and retaining possession of the res in proceedings in rem.

The only change in the 1948 revision was to overrule

Toucey and authorize ihe federal courts to prevent relitiga-

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

Vendo establish that there is no general exception to

preserve a controversy for federal adjudication.

B. The All-Writs Act.

]. Dean Foods.

The District Court in Brown based its jurisdiction on

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

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

guishable on several grounds.

First and foremost, Dean Foods did not involve any

legislative prohibition on injunctive relief. It was a pure

case of searching for authority in the absence of any clear

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

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

involving a prohibition on injunctions is critical.

A related distinction, and one nearly as important, is

that Dean Foods does not involve the delicate relationship

between state and federal courts. Federal injunction of

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

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

Demosthenes v. Baal, 495 U. S. 731, 737 (1990).

Finally,- Dean Foods involved a writ issued by an

appellate court in a case which had already entered the

federal adjudicatory process. The case was pending before

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

Foods cited as authority cases in which appellate courts

had issued orders in cases pending in the lower courts,

which would later be appealed. /d., at 603.

The District Court in Brown stated that Dean Foods is

authority for pre-filing stays because the injunction issued

before “the initial entry of [the] action into the Article II]

court system.” 743 F. Supp., at 731 (emphasis added).

There is nothing in Dean Foods or the authorities on

which it relies to justify this distinction between Article |

and Article III adjudicatory bodies.

The principal case relied on by Dean Foods is Whitney

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

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

is a ringing affirmation of the legitimacy and the wisdom

of Congress’s choice to substitute an administrative body

in the place of the district court in certain specialized

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

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

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

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

Construction, supra, for the proposition that “a federal

court, having first acquired jurisdiction of the subject

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

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

first acquired jurisdiction, Dean Foods provides no authori-

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

District Court’s interpretation of Dean Foods would

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

2. Supreme Court stays.

The District Court in Brown noted that the Supreme

Court and its Justices can and do issue stays of state court

proceedings in cases where the certiorari petition has not

yet been filed. Brown v. Vasquez, supra, 743 F. Supp., at

731, n. 8 (citing California v. Velasquez, 445 U.S. 1301

(1980) (Rehnquist, J., in chambers)). Contrary to the

District Court’s reasoning, this power and its source refute

the existence of a similar power in district courts.

Ne

The Supreme Court is unique among federal courts.

This Court alone has appellate jurisdiction over cases

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

unique jurisdiction calls for a unique power regarding

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

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

“In any case in which the final judgment or decree

of any court is subject to review by the Supreme

Court on writ of certiorari, the execution and

enforcement of such judgment or decree may be

stayed for a reasonable time to enable the party

aggrieved to obtain a writ of certiorari from the

Supreme Court. The stay may be granted by a

judge of the court rendering the judgment or

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

The contrast between the wording of this statute and

the wording of section 2251 is striking and significant.

The Supreme Court may grant stays in cases merely

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

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

before that court. Both provisions were adopted in the

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

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

Congress knows how to unambiguously authorize pre-

filing stays when it deems them necessary. The staying of

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

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

allocate such power to this Court alone.

Supreme Court practice thus provides no authority for

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

Stay power derives from a special statute. Congress has

conferred a unique power on the Supreme Court in order

to discharge its unique responsibilities. Congress has also

conferred a stay power on the federal habeas court, but

that power is worded differently. The difference is

intentional.

10

II. The application for stay and counsel cannot be

“deemed” to be a petition.

Thompson argued in the court below that a habeas

proceeding was “pending” upon the filing of the request

for stay and counsel because that document could be

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

local rules is meritless. Appellee’s Brief at 34-35. Amicus

has found only one case supporting such an exercise, and

the situation there was quite different. In Studebaker

Corp. v. Gittlin, 360 F. 2d 692 (CA2 1966), the court held

a hearing before the complaint was filed, but it issued the

injunction afterwards. /d., at 694. Under the facts of the

case, Studebaker is authority for no more than the proposi-

tion that a court may deem an extensive affidavit, which

contains the information required in a complaint, to be a

complaint for the purpose of holding a hearing on whether

to grant an injunction. Whether an injunction can actually

issue without an actual complaint is another question.

A Supreme Court case closer to the present facts

points in the opposite direction. In Baldwin County

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

plaintiff Brown claimed discriminatory treatment by her

former employer, the Welcome Center. After exhausting

administrative remedies with the Equal Employment

Opportunity Commission (EEOC), she had 90 days to

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

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

District Court and requested counsel. The magistrate

mailed her the required form and questionnaire and

reminded her of the deadline. Brown returned the

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

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

days past the deadline. J/bid.

This Court held that the EEOC letter could not be

deemed a complaint. The Court noted that under Federal

Rule of Civil Procedure 3 an action is commenced by

filing a complaint. The District Court had determined

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

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

the factual basis for the claim of discrimination, which is

11

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

Upholding this ruling, this Court rejected the Court of

Appeals’ notion that civil rights plaintiffs were somehow

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

tiffs. Id., at 149-150.

The complaint later filed, the Court went on to

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

EEOC letter because that letter did not meet the very

minimal requirements to constitute a complaint.

“Although the Federal Rules of Civil Procedure do

not require a claimant to set forth an intricately

detailed description of the asserted basis for relief,

they do require that the pleadings ‘give the defen-

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

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

Because the initial ‘pleading’ did not contain such

notice, it was not an original pleading that could be

rehabilitated by invoking Rule 15(c).” Jd., at 150,

n. 3 (emphasis added).

Baldwin County holds, therefore, that notwithstanding

the liberal rules of modern pleading, there are limits

beyond which a paper cannot be considered a pleading.

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

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

habeas corpus petition.

The habeas corpus application or petition is not

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

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

Rule 2 of the Rules Governing Section 2254 Cases in the

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

Habeas Rules are an Act of Congress. Although original-

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

they were amended by Congress and approved as amend-

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

In the Court of Appeals, Thompson attacked the

State’s argument that a petition must allege facts support-

ing a claim for relief. Such an argument, Thompson said,

urges the court to usurp the legislative function. Appelle-

e’s Brief 33. This argument is precisely backwards. By

12

approving Habeas Rule 2(c), Congress has explicitly

required that the petition “shall specify all the grounds for

relief . .. and shall set forth in summary form the facts

supporting each of the grounds thus specified.” How clear

must Congress be? Judicial disregard of this clear legisla-

tive requirement would usurp the legislative function.

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

ought not to be scrutinized with technical nicety.” Holiday

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

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

are and should be as to practice in setting out claimed

violations of constitutional rights, the applicant must meet

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

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

Congress has quite deliberately made the initial

pleading requirements more strict for habeas petitions

than for civil complaints in some respects. Civil com-

plaints are generally signed by the attorney and usually

need not be verified. Civil Rule 11. Habeas petitions

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

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

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

statute permits “next friend” petitioners, but only under

very limited circumstances. See Whitmore v. Arkansas, 495

U. S. 149, 163-164 (1990).

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

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

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

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

possibility of constitutional error. See Aubut v. State of

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

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

also 1 J. Liebman, Federal Habeas Corpus Practice and

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

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

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

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

designed to review and draws heavily on the record of

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

enables courts . . . to separate substantial petitions from

insubstantial ones quickly and without need of adversary

proceedings.” I/bid.

The second reason is particularly pertinent here. If the

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

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

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

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

been decided in a state proceeding entitled to deference,

it is error to grant a stay. Demosthenes v. Baal, 495 U. S.

731, 737 (1990).

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

lished that “it is entirely appropriate that an appeal which

; ‘frivolous and entirely without merit’ be dismissed after

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

solved and constitutionally significant factual issue,

consideration of the petition by the district court is no

different.

There is an irreducible minimum below which a paper

cannot be deemed a petition. It must be verified or

signed under penalty of perjury. It must be signed by the

petitioner absent extraordinary circumstances. Most

importantly, it must serve the basic function of identifying

the claims and their factual basis. The papers on file at

the time the District Court granted the stay in the present

case did not meet this essential requirement. The local

rulemaking authority does not include the power to

contradict the habeas statutes and rules. See Frazier v.

Heebe, 482 U. S. 641, 646 and n. 4 (1987). The local rules,

therefore, cannot permit these papers to be “deemed” a

petition.

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

petition is filed and not before.

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

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

simply because very few litigants have had the effrontery

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

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

(assuming courts precluded from granting TRO before

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

uniformly against the Brown court’s conclusion. Even the

most partisan of the pro-petitioner commentators states

unquestioningly that the petition is a prerequisite to

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

Federal Habeas Corpus Practice and Procedure § 11.1, at

145 (1988).

A. Civil Cases Generally.

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

the only direct authority for when an action begins so as

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

Circuit Court for the Ninth Circuit against Overton, but

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

obtained a writ of scire facias to substitute the executor of

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

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

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

(emphasis added).

The circuit court granted the executor’s motion to set

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

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

not been served. Connaway applied to the Supreme Court

for a writ of mandamus.

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

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

not the answer inevitable, from the time the suit is

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

menced, and if it continue until the death of the

‘plaintiff or petitioner or defendant,’ the require-

ments of the section seem to be satisfied.

“Another inquiry becomes necessary — when is a

suit commenced? For an answer we must go to the

California statutes.* By section 405 of the Code of

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

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

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

Se LO a are re

La a lal

|)

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

courts of this State are commenced by filing a

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

fore, is the commencement of the action and the

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

428 (emphasis added).

Connaway thus squarely holds that in a court governed

by a commencement rule equivalent to former section 405

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

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

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

guishable from the statute construed in Connaway: “A

civil action is commenced by filing a complaint with the

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

in federal civil cases. See Baldwin County Welcome Center

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

B. Habeas Corpus Cases.

The Brown court, presented with the clear authority of

Connaway and Baldwin County, nonetheless found that the

purpose of habeas corpus permits the federal courts to

make an exception to the usual rules and consider a

habeas corpus proceeding “pending” as soon as the

prospective petitioner asks for counsel. 952 F. 2d, at 1168.

The court’s analysis is backwards. The differences be-

tween habeas corpus and other cases call for stricter

requirements for a stay, not more lax requirements.

“The role of federal habeas proceedings, while impor-

tant in assuring that constitutional rights are observed, is

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

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

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

context for the proposition that federal habeas corpus

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

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

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

acting as if state courts do not exist, despite repeated

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

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

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

16

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

(1991).

In Bounds, the prison inmates sought access to a law

library in order to prepare a variety of pleadings, which

included state collateral proceedings and state and federal

civil rights actions, as well as federa! habeas. See 430

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

actions with discretionary appeals following a first appeal

as of right, the Bounds Court referred to the group

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

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

(1974), which involved counsel on discretionary appeals.

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

prisoners were “likely to have appellate briefs previously

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

diate appellate court opinions to use in preparing petitions

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

So it is in the present case. Capital defendants in

California are provided counsel not only on appeal but

also on the state habeas petition. See Supreme Court

Policies Regarding Cases Arising from Judgments of

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

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

Unlike the brand new cases envisioned by the Bounds

Court, California capital defendants have the benefit of

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

state-paid attorneys followed by comprehensive review by

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

before the case ever enters the federal system. The Court

of Appeals’ discourse about unprepared, pro se petitioners,

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

lengths to which California has gone to provide represen-

tation.

It is quite true, as the Brown court said, that the

Federal Rules of Civil Procedure do not apply where they

are inconsistent with the Habeas Rules. Habeas Rule 11.

But Civil Rule 3 is entirely consistent with both the letter

and the spirit of the Habeas Rules.

The people of California have litigated this case to

final judgment. The case has been thoroughly reviewed

17

and affirmed by the highest court of the largest state of

the Union. A presumption of finality and legality has

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

have a powerful interest in executing their judgment. Jn

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

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

the single most important function of state government.

Congress has authorized the federal courts to delay the

enforcement of such judgments, but only upon a showing |

of a “real possibility of constitutional error.” Advisory

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

recognizes, there may not be any substantial federal

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

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

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

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

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

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

(1989); or (4) simply insubstantial.

The rule of Connaway, Baldwin County, and Civil Rule

3 that a proceeding is commenced only upon the filing of

a complaint/petition is fully consistent with the procedure

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

These rules contemplate a screening process to summarily

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

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

is entitled to proceed with the execution of its judgment

absent a showing of a “real possibility of constitutional

error.” That cannot be done if stays are issued without

any showing at all.

Arguments have been made for an automatic stay on

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

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

Corpus in Capital Cases: Committee Report and Proposal

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

yet seen fit to adopt these proposals. The Congressional

mandate that the state has a right to proceed with its

judgment in the absence of a substantial claim remains in

force. Unless the defendant is required to file his petition

18

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

mandate.

IV. Practical alternatives exist.

Although fundamental principles of federal jurisdiction

uniformly point to a lack of jurisdiction, the Ninth Circuit

attempts to justify its policy of granting these stays with

the dire prospect of a capital defendant being executed

before his first federal petition could be filed. 952 F. 2d,

at 1168-1169. Jurisdictional questions do not require

practical answers, not even in habeas cases. Ex parte

Kearney, 7 Wheat. (20 U.S.) 38, 45 (1822); see also

Atlantic Coast Line, supra, 398 U. S., at 294. Nonetheless,

it is worth noting that with reasonable diligence on the

part of the habeas petitioner and his attorney, the problem

raised by the court below is readily avoidable.

The California Supreme Court routinely grants stays of

execution pending certiorari to this Court. See Cal.

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

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

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

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

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

can begin immediately. Counsel has three months to file

the certiorari petition, Supreme Court Rule 13.1, and this

Court typically takes several months to rule on it. The

initial setting of an execution date then takes at least 60

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

inmate who applies for counsel promptly upon exhaustion

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

6. Under the system of unified review adopted while Thompson’s case was

on appeal, the state habeas petition is filed in the Supreme Court after

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

Policies, supra p. 16, Rule 3 9 1-1.1, at 263. The petition is dismissed

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

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

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

decision of the direct appeal.

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

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

The Court of Appeals made much of the rule of

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

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

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

ignores the very substantial resources the state has already

provided for investigation of potential claims. See ante, at

16. Federal habeas counsel need not investigate the case

from scratch, but only review and supplement a completed

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

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

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

simple and clear instruction to potential litigants: before

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

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

row inmate ever gets to federal habeas, California has

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

gative resources to comply with that direction. The cards

should all be on the table by this point.

It is ironic indeed that while the district courts in all

the other states with capital punishment discharge their

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

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

The time available to the diligent petitioner is sufficient,

given the extensive state review and the “secondary and

limited” role of federal habeas corpus. In addition to

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

Stay is unnecessary.

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

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

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

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

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

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

. .. Is seeking relief”).

20

V. Demosthenes v. Baal accurately summarizes

the controlling principles.

Demosthenes v. Baal, 495 U. S. 731 (1990) states that

“federal courts are authorized by the federal habeas

statutes to interfere with the course of state proceedings

only in specified circumstances.” Jd., at 737. Although no

citation is given, this is a statement of the fundamental

principle established by the authorities in part I, supra.

The Anti-Injunction Act bars federal interference absent

an exception, and section 2251 is the only relevant excep-

tion.

“Before granting a stay, therefore, federal courts must

make certain that an adequate basis exists for the exercise

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

lacking. The State is entitled to proceed without federal

intervention.” Ibid.

CONCLUSION

The judgment of the Court of Appeals should be

summarily reversed.

October, 1992

Respectfully submitted,

CHARLES L. HOBSON

Attorney for Amicus Curiae

Criminal Justice Legal Foundation

ee a ee