Petition for Writ of Certiorari — In re Vasquez

92-265 *RILED.

: 4

ee AUG 7 1992

(DFEICE OE IHE CLERK

IN THE —

SUPREME COURT OF THE UNITED STATES

October Term, 1992

In re DANIEL VASQUEZ,

Warden of San Quentin

Prison and

DANIEL E. LUNGREN,

Attorney General of the

State of California

PETITION FOR WRIT OF MANDAMUS TO THE

UNITED STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT (MARY M. SCHROEDER, BETTY B.

FLETCHER, AND STEPHEN S. TROTT, CIRCUIT

JUDGES) AND FOR WRIT OF PROHIBITION TO THE

UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF CALIFORNIA (RUDI M.

BREWSTER, DISTRICT COURT JUDGE)

DANIEL E. LUNGREN, Attorney General

of the State of California

GEORGE WILLIAMSON, Chief Assistant

Attorney General

GARY W. SCHONS, Senior Assistant

Attorney General

LOUIS R. HANOIAN

Supervising Deputy Attorney General

HOLLY D. WILKENS

Deputy Attorney General

PAT ZAHAROPOULOS,

Supervising Deputy Attorney General

110 West A Street, Suite 700

San Diego, CA 92101

Telephone: (619) 237-7857

Attorneys for Petitioner

—

QUESTION PRESENTED

Can a state condemned inmate, who is

appealing the denial of a petition for

writ of habeas corpus, return to the

district court and reopen his "first”

habeas petition in order to raise

previously abandoned claims by way of a

FRCP Rule 60(b) motion, thereby avoiding

application of Rule 9(b) of habeas corpus

rules and this Court’s pronouncements on

abuse of the writ?

PARTIES

Warden Daniel Vasquez and California

Attorney General Daniel E. Lungren.

Bernard Hamilton, an inmate sentenced

to death under the laws of California, is

the subject of the underlying appeal.

- il. -

TABLE OF CONTENTS

Page

OPINIONS BELOW 3

JURISDICTION 2

STATEMENT OF THE CASE 6

REASONS FOR GRANTING THE WRIT 37

REMANDING AN APPEAL TO EXPAND

THE CLAIMS OF THE ORIGINAL WRIT

PETITION WITH KNOWN-ABANDONED

CLAIMS, DELAYS EXECUTION OF THE

STATE'S VALID JUDGMENT OF DEATH

AND PERMITS THE PIECEMEAL

LITIGATION AND GAMESMANSHIP

PRECLUDED BY RULE 9(B) OF THE

HABEAS RULES AND MCCLESKEY V.

ZANT 37

A. The Ninth Circuit

Remand For Purposes of

the District Court

Entertaining a Rule

60(b) Motion is

Contrary to the Law

Governing Habeas

Corpus Procedure and

in Excess of the

Appellate Court's

Jurisdiction 39

B. The Remand for a Rule

60(b) Motion is

_ Inconsistent With the

Prompt Resolution of

Hamilton's Appeal 48

Cs This Court is

Empowered to Grant

Petitioner Relief 53

- iii. -

TABLE OF CONTENTS

D. The State Has No Other

Adequate Remedy

Available to Redress

the Appellate Court’s

Jurisdictional Error

CONCLUSION

Page

56

- iv. -

TABLE OF AUTHORITIES

Page

Cases

Bankers Life & Casualty Co. v. Holland,

346 U.S. 379 (1953) Se

California v. Hamilton,

476 U.S. 1301 (1986) 7

Carriger v. Lewis,

a ee

Filed 7/28/92,

92 DAR 10417 (9th Cir. 1992) 43

Coleman v. Thompson,

501 U.S. _,

115 L.Ed.2d 640

111 S.Ct. 2546 (1991) 45

F.T.C. v. Dean Foods Co.,

384 U.S. 597 (1966) 54

Hamilton v. California,

488 U.S. 1047 (1989) 7

Hamilton v. Vasquez,

882 F.2d 1469 (9th Cir. 1989) 11

Harris v. Vasquez,

949 F.2d 1497 (9th Cir. 1991) 47

In re Blodgett,

2

116 L.Ed.2d 669

112 S.Ct. 674 (1992) 48, 50

Kerr v. United States Ct.

for N.Dist. of Cal.,

426 U.S. 394 (1976) 54

a V ° -=

TABLE OF AUTHORITIES

Cases

Maryland v. Soper (No. 1),

270 U.S. 9 (1926)

McCleskey v. Zant,

499 U.S... ,

113 L.Ed.2d 517

111 S.Ct. 1454 (1991)

Neuschafer v. Whitley,

860 F.2d 1470 (9th Cir. 1988)

Pennsylvania v. Finley,

481 U.S. 551 (1987)

People v. Hamilton,

41 Cal.3d 408

221 Cal. Rptr. 902

710 P.2d 981 (1985)

People v. Hamilton,

45 Cal.3d 351

247 Cal .Rptr. 31

753 P.2d 1109 (1988)

Pitchess v. Davis,

421 U.S. 482 (1975)

Roche v. Evaporated Milk Assn.,

319 U.S. 21 (1943)

Sawyer v. Whitley,

5 ‘

60 U.S.L.W. 4655 (6/22/92)

Will v. Calvert Fire Ins. Co.,

437 U.S. 655 (1978)

Page

54

40, 41

44

45

40

54

40, 41

54

- vi. -

TABLE OF AUTHORITIES

Statutes

U.S.C, Title 28, § 1651(a)

Rules

Rules Governing 2254 Proceedings

Rule 11

Federal Rules of Civil Procedure

Rule 60(b)

United States Supreme Court Rules

Rule 20.1

Page

38

37

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1992

In re DANIEL VASQUEZ,

Warden of San Quentin

Prison and

DANIEL E. LUNGREN,

Attorney General of the

State of California

PETITION FOR WRIT OF MANDAMUS TO THE

UNITED STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT (MARY M. SCHROEDER, BETTY B.

FLETCHER, AND STEPHEN S. TROTT, CIRCUIT

JUDGES) AND FOR WRIT OF PROHIBITION TO THE

UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF CALIFORNIA (RUDI M.

BREWSTER, DISTRICT COURT JUDGE)

Petitioners pray that, pursuant

to the All Writs Act, (section 1651,

subdivision (a) of Title 28 of the United

States Code), a Writ of Mandamus be issued

in Hamilton v. Vasquez, Case Numbers 91l-

56251, 91-56252, and 91-56295, to compel

the United States Court of Appeals for the

Ninth Circuit (the Honorable Mary M.

a

Schroeder, Betty B. Fletcher, and Stephen

S. Trott, Circuit Judges), to vacate an

order permitting a remand to the district

court during the pendency of the appeal

from the denial of Hamilton's second and

fifth petitions for habeas corpus and a

writ of prohibition be issued in Hamilton

v. Vasquez, Case Numbers CV-86-2102-B and

90-0291-B, to prevent the United States

District Court for the Southern District

of California (the Honorable Rudi M.

Brewster, Judge), from conducting further

proceedings pursuant to that remand.

The remand by the Ninth Circuit

allows Hamilton to move the district court

pursuant to Rule 60(b) of the Federal

Rules of Civil Procedure for the purposes

of revisiting his "first" petition for

writ of habeas corpus in order to amend

that petition to bring additional claims

he declined to bring prior to an extensive

evidentiary hearing in the district court,

—— ae

and the issuance of a decision by the

district court.+! Permitting a motion

pursuant to Rule 60(b) during the pendency

of Hamilton's appeal is in excess of the

appellate court’s jurisdiction and

contrary to this Court’s decisions on

abuse of the writ and the prompt

resolution of appeals from denials of

habeas corpus in capital cases.

OPINIONS BELOW

Bernard Hamilton, the party to

the underlying appeal, is an inmate

sentenced to death under the laws of

California. A federal stay of execution

remains in effect. On August 23, 1991,

the United States District Court denied

1. An appeal is pending on the

denial of Hamilton's "first” amended

petition filed by his attorneys on

October 22, 1990. Hamilton was to bring

forward all of his known claims but

basically incorporated the claims of his

second and fifth pro per petitions.

Hamilton has filed seven petitions in

California state courts and five in

federal courts.

a £. «

Hamilton's second and fifth federal habeas

corpus petitions in a 93 page memorandum

Opinion. (Appendix A.) An appeal is now

pending before the Court of Appeals for

the Ninth Circuit. Hamilton's attorneys

have filed their opening brief, the time

for Hamilton to file a separate opening

brief in pro se has passed and petitioner

filed a responding brief in the Ninth

Circuit Court of Appeals on July 29,

1992.4

During the pendency of the

appeal, the Ninth Circuit issued a remand

on July 7, 1992, to the district court to

enable Hamilton to reopen habeas

proceedings under Rule 60, subdivision (b)

of the Federal Rules of Civil Procedure

2. The pro se brief was due June

29, 1992. Petitioners received a 56

page pro se brief on July 31, 1992. A

motion to file the belated brief is

Currently pending before the Ninth

Circuit Court of Appeals.

a §, «

and amend his “first” petition to bring

additional claims. (See Appendix B.)

On July 17, 1992, petitioners

filed a motion to recall the mandate and

to reconsider the July 7, 1992 order

granting Hamilton’s motion for remand. On

July 31, 1992, the Ninth Circuit denied

that motion. The hearing on Hamilton's

Rule 60 motion in the district court is

now calendared for August 26, 1992.

JURISDICTION

Sections 1651, subdivision (a)

and 2254 of Title 28 of the United States

Code and Rule 20.1 of the United States

Supreme Court Rules give jurisdiction to

this Court.

Jurisdiction in the district

court over Hamilton's petition for writ of

habeas corpus was pursuant to sections

2241, subdivision (a) and 2254 of Title 28

of the United States Code.

. &

Jurisdiction in the Court of

Appeals over an appeal from the denial of

the petition for writ of habeas corpus is

pursuant to section 1291 of Title 28 of

the United States Code.

STATEMENT OF THE CASE

A. Procedural Background

1. Direct Appeal

A jury convicted Hamilton of the

murder of Eleanore Buchanan and he was

sentenced to death on March 2, 1981. The

California Supreme Court set aside the

special circumstance finding and reversed

the penalty of death after a majority of

the court concluded that it was possible

Hamilton did not intend to kill Mrs.

Buchanan, as he may have removed her head

and hands to prevenc identification after

an accidental killing during the course of

kidnapping and robbing her. (People v.

Hamilton, 41 Cal.3d 408, 221 Cal. Rptr.

902, 710 P.2d 981 (1985) ("Hamilton I").)

a

Following California's petition

for writ of certiorari, this Court

remanded the case to the California

Supreme Court for reconsideration.

(California v. Hamilton, 476 U.S. 1301,

(1986).) On remand, Hamilton's conviction

and sentence of death were affirmed by the

California Supreme Court. (People v.

Hamilton, 45 Cal.3d 351, 247 Cal.Rptr. 31

753 P.2d 1109 (1988) (“Hamilton II”).)

On January 23, 1989, this Court

denied Hamilton’s petition for writ of

certiorari. (Hamilton v. California, 488

U.S. 1047 (1989).)

2. State Court Collateral Review

To date, Hamilton has filed

seven petitions for writ of habeas corpus

in the California Supreme Court

collaterally attacking his conviction and

sentence of death. His first petition for

writ of habeas corpus before the

California Supreme Court was filed on

“= =

January 23, 1986. (In _re Hamilton, Case

No. 25095.) The petition was denied on

March 13, 1986. A second petition for

writ of habeas corpus was filed with the

California Supreme Court on August 3,

1987. (In re Hamilton, Case No. S001870.)

The second petition was denied in the

opinion which decided Hamilton’s direct

appeal. (People v. Hamilton, supra, 45

Cal.3d 351.)

A third petition for writ of

habeas corpus was filed with the

California Supreme Court on May 27, 1988,

and denied on July 14, 1988. (In re

Hamilton, Case. No. S005806.) A fourth

petition for writ of habeas corpus was

filed with the California Supreme Court on

June 1, 1988, and denied on July 14, 1988.

(In re Hamilton, Case No. S005871.) A

fifth petition for writ of habeas corpus

was filed with the California Supreme

Court on May 5, 1989, and denied on June

= Ss. «

22, 1989. (In re Hamilton, Case No.

S010092.) A sixth petition for writ of

habeas corpus was filed with the

California Supreme Court on February 27,

1990, and denied on March 15, 1990. (I

re Hamilton, Case No. S014318.)

Hamilton's seventh petition for writ of

habeas corpus was denied by the California

Supreme Court on February 19, 1992. (1

re Hamilton, Case No. S024477.)

3. Federal Habeas Petitions

Hamilton has filed five federal

habeas corpus petitions. The first was

filed in the United States District Court

for the Southern District of California

hereinafter "district court”) on April 2,

Pp

1986. (Hamilton v. Vasquez, Case No. 86-

0809-T.) Hamilton raised claims of

ineffective assistance of counsel and

denial of the right of self-

representation. The petition was denied

on the merits on September 4, 1986. On

- 10. -

September 24, 1987, the Ninth Circuit

Court of Appeals vacated the judgment as

premature based on Hamilton's failure to

exhaust state court remedies. On

September 30, 1987, the petition was

dismissed without prejudice to refiling

the petition following exhaustion. The

issues in the petition were subsequently

raised in a third petition filed in

federal.court.

A second petition was filed in

the district court on October 9, 1986.

(Hamilton v. Vasquez, Case No. 86-2101-

B.) Hamilton claimed that shackling him

during trial violated his constitutional

rights. The petition was denied by the

district court on the merits on November

19, 1987. Following an appeal to the

Ninth Circuit, the case was remanded on

August 23, 1989, with directions to the

district court to review and consider the

entire state court record before ruling on

- ll. -

the petition. (Hamilton v. Vasquez, 882

F.2d 1469, 1473 (9th Cir. 1989).) The

claims in the second petition were

subsequently consolidated with Hamilton's

fifth federal habeas petition.

A third petition which raised

the same claims contained in Hamilton's

first federal petition was filed in the

district court on September 30, 1987. The

petition was dismissed by the district

court on August 31, 1988. (See Appendix

A, at p. 4.) Hamilton's subsequent appeal

to the Ninth Circuit was also dismissed on

September 7, 1990, as moot in light of the

Ninth Circuit ruling in Hamilton v.

Vasquez, 882 F.2d 1469 (9th Cir. 1989)

which remanded Hamilton's second federal

petition to the district court for further

proceedings.

A fourth petition was filed on

June 20, 1989, in the United States

District Court for the Northern District

a

- 12. -

of California claiming ineffective

assistance of counsel, denial of a fair

trial, denial of due process, and a denial

of access to the prison library. The

petition was transferred to the United

States District Court for the Sovthern

District of California. The district

court denied the petition on July 19,

1989, after finding that the grounds for

relief, either were, or should have been,

presented in previous petitions to the

court.

A fifth petition was filed in

the district court on March 7, 1990.

(Hamilton v. Vasquez, Case No. 90-0291-

B.) The fifth petition was consolidated

with Hamilton's second federal petition

(case number 86-2101-B) on June 8, 1990.

4. Hamilton's Waiver of Claims

Meanwhile, on October 17, 1989,

prior to Hamilton filing his “first”

- 13. =

amended federal habeas petition,='

petitioners brought a motion in the

district court to compel Hamilton to bring

forward, or waive, all known claims. On

March 8, 1990, pursuant to that motion,

the district court ordered Hamilton to

inform the court of any and all additional

habeas claims of which he was aware.

On June 8, 1990, Hamilton filed

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district court provided

additional counsel and also grant

Hamilton until August 8, 1990, to

3. The district court has held

that Hamilton's amended petition of

October 22, 1990, (consolidated second

and fifth federal petitions) constitutes

his “first” petition for purposes of

Rule 9(b) of the Rules Governing Section

2254 Proceedings regarding successive

and abusive petitions.

- 14. -

to state court and exhaust remedies as to

all unexhausted habeas claims. On August

2, 1990, at his request, Hamilton was

granted additional time, until August 20,

1990, to exhaust state court remedies on

any additional habeas claims.

Acting in his own behalf, on

August 16, 1990, Hamilton filed a notice

of abandonment of known habeas claims.

(Appendix C.) On August 21, 1990,

counsel for Hamilton informed the federal

court that they had failed to file any

identified and unexhausted claims in state

court.

In lieu of deeming all

unexhausted claims waived, the district

court granted Hamilton yet another

extension of time until October 22, 1990,

to permit him to pursue unexhausted claims

in state court. The district court also

stated that in the event Hamilton filed

Claims in state court, the federal

- 15. -

proceedings would be stayed until such

time as all the claims were exhausted in

state court.

In a September 18, 1990, order,

the district court explicitly notified

Hamilton that "as of October 22, 1990, he

would be deemed to have waived and

abandoned any and all habeas corpus claims

not_yet filed in state court and any

exhausted habeas claims not yet raised in

his federal petition.” (Appendix D.)

On October 18, 1990, Hamilton,

acting in his own behalf, amended his

fifth federal petition. (Hamilton v.

Vasquez, Case Nos. 86-2101-B; 90-0291-B. )

On October 22, 1990, Hamilton’s counsel

filed an amended and consolidated

petition. Neither Hamilton nor his

counsel pursued any additional claims in

state court, despite the passage of nearly

eight months, from February 26, 1990,

through October 22, 1990, wherein he was

i

- 16. -

repeatedly ordered by the court to do so

to avoid a waiver of claims.

On November 21, 1990, the

district court found that Hamilton had

intentionally waived and abandoned any and

all habeas claims not yet filed in state

court, and any exhausted claims not yet

filed in federal court, in accordance with

the district court’s previous order of

September 18, 1990. (Appendix. A., pp.

10-11.)

D« District Court Evidentiary

Hearing

On April 23, 1991, a three-week

evidentiary hearing commenced in district

court before the Honorable Rudi M.

Brewster, on issues of shackling and

ineffective assistance of counsel;

including defense investigation of

Hamilton's whereabouts and defenses.

Hamilton was transported from death row at

San Quentin state prison in Northern

California to the federal courthouse in

- 17. -

San Diego in early April, and was present

in court throughout the proceeding.

At the conclusion of the

evidentiary hearing, Hamilton moved to

have the hearing held open to enable him

to present additional claims. The

district court denied the request, citing

its previous orders requiring Hamilton to

pursue unexhausted claims in state court

and exhausted claims in federal court by

October 22, 1990, and its order finding

that Hamilton had in fact waived all such

Claims. (Appendix E, Evid. Hrg. X RT 189-

191.)

Extensive written briefs were

filed by the parties following the

evidentiary hearing. On July 1, 1991,

Hamilton requested a stay of the federal

proceedings and funds for investigation of

potentially meritorious claims. On August

20, 1991, the district court denied the

request for a stay. (Appendix F.)

- 18. -

On August 23, 1991, the district

court filed a 93 page opinion denying the

petition for writ of habeas corpus.

(Appendix A.) The district court denied

Hamilton's in pro per motion for

reconsideration on September 10, 1991.

Hamilton’s counsel’s motion to alter or

amend the judgment was denied on October

31, 1991. (Appendix G.)

On November 13, 1991, a

certificate of probable cause was granted

and a stay issued pending disposition of

Hamilton's appeal of the denial of the

petition for writ of habeas corpus before

the Ninth Circuit Court of Appeals.

On March 17, 1992, Hamilton

filed a motion pursuant to Rule 60(b) of

the Federal Rules of Civil Procedure

seeking to reopen the district court

proceedings and amend his habeas corpus

petition to bring additional claims. On

July 1, 1992, the district court issued an

- 19. - :

order stating it would entertain the’

motion if the Ninth Circuit remanded the

case for consideration of the motion.

(Appendix H.) On July 27, 1992, after

remand by the Ninth Circuit, the district

sonnet calendared the hearing on Hamilton’s

Rule 60(b) motion for Auyust 26, 1992.

(Appendix I.)

~ 6. Current Status of Appeal

Before the Ninth Circuit

Hamilton's appeal from the :

denial of his consolidated and amended

federal habeas petition is currently

pending before the Ninth Circuit Court of

Appeals in case numbers 91-56251, 91-

56252, and 91-56295. Hamilton’s counsel

have filed the opening brief in the Ninth

Circuit and petitioner responded on July

29, 1992. Hamilton’s counsel's reply

brief is due on August 19, 1992, and

Hamilton’s in pro se reply brief is due on

September 12, 1992.

- 20. -

Meanwhile, Hamilton filed a

request for a remand of his case to the

district court for purposes of having his

Rule 60 (b) motion heard by the district

court. On July 7, 1992, the Ninth Circuit

issued an order remanding the matter to

the district court for purposes of

Hamilton’s motion pursuant to Rule 60(b)

of the Federal Rules of Civil Procedure.

(See, Appendix B.) While the order

provides that the parties are to continue

briefing the appeal as previously ordered,

the Ninth Circuit has not set any time

limitations on the consideration of the

motion in the district court. (Id.)

Moreover, the Ninth Circuit order

acknowledges that a full remand or further

orders may become necessary depending upon

events in the district court. (Id.)

On July 17, 1992, petitioners

filed a motion to recall the mandate which

issued immediately upon the issuance of

- 21. -

the order of remand and a_petition for

reconsideration of the remand order. The

Ninth Circuit denied the motion and

petition on July 31, 1992, (Appendix J)

and this petition for writ of mandamus and

prohibition follows.

B. Facts of the Crime.

On the evening of May 30, 1979,

24-year-old Eleanor Buchanan (the victim)

had dinner with her husband and two infant

sons, then left for school in their new

van. They had purchased the van about six

weeks earlier and her husband, a dental

Supply salesman, used it in his work

during the day, carrying literature and

Samples. He told his wife there was very

little gas in the van and not to add any

because he was taking it to the dealer the

next morning to replace the tank due to a

leak.*/ (RT 2079, 2077, 2099-2101, 2151.)

4. All locks and windows worked

and nothing was broken on the van when

Buchanan turned it over to his wife.

- 22. -

Mrs. Buchanan left for school at

6:30 p.m. She was wearing tan Levi's, a

striped beige and brown T-shirt, white

knee socks, bra, panties and a simulated

leather purse. (RT 2079, 2077, 2099-2101,

2151.)

Buchanan habitually locked the

van, which had valuables in it including

dental equipment from her husband’s work.

(RT 2146, 2150-2151, 2156, 2106, 2083.)

On May 30, 1979, she left her

math class early after obtaining xeroxed

class notes from fellow students because

an optional quiz was offered and she had

been absent for the birth of her

three-week-old son. Students saw her

walking towards the parking lot about 9:30

When respondent was arrested in it on

June 8th, the arm rest of the driver's

chair, the metal rod on the ceiling that

holds the curtain suspended behind the

driver and the wind wing on the

passenger's side were all broken. (RT

2086, 2106-2107, 2573, 2577.)

- 23. -

P-m. (RT 2160, 2162, 2171-2173,

2181-2183.)

At about 1:52 a.m. on May 31,

1979, Hamilton called Donna Hatch in

Terrell, Texas to Say he had gotten a van

and was leaving for Texas when he could

get gas. (RT 2363-2364, 2444-2445.)

There was a gasoline shortage

during this time and fuel was sold for

limited hours. Between 4:30 a.m. and

10:15 a.m. on May 31, 1979, Hamilton

purchased gas for the Buchanans’ van on

their Visa card at Roy's Service Station

off Highway 8 in El Cajon, California. He

Signed the invoice, “Terry Buchanan”. (RT

2206-2207, 2210-2211.)

About noon on the same day,

Eleanor Buchanan's headless, handless body

was found in the grass near a Cul-de-sac

off Pine Valiey Road near San Diego. The

Cul-de-sac was 200 yards off Interstate 8.

The body was in full rigor mortis with the

- 24. -

elbow in an upright position, completely

off the ground, when a deputy sheriff

arrived at the scene between 1:30 and 2:00

p-m. Two strings of twine were attached

around Buchanan's ankles and there were

dark blue pieces of lint sticking to her

blood. The body was clothed in a bra,

underpants and socks. The head and hands

were never found. (RT 2278-2279,

2289-2290. )

During the autopsy, it was

determined that a horizontal stab wound in

the abdomen was inflicted before death.

Three superficial wounds measuring up to

five inches on the abdomen were inflicted

after death. The pathologist could not

determine cause of death because of the

absence of the head, but ruled out natural

causes. He could not say whether the

hands were cut off while Eleanor Buchanan

was alive, but suspected she was dead

because there was not much hemorrhaging.

- 25. -

He could not say whether she was alive

when the head was cut and sawed off. (RT

2337, 2333.) Judging from the rigor

mortis, death occurred about 16 hours

before the autopsy, about midnight on May

30, 1979. (RT 2340-2341.)

Meanwhile, Hamilton continued to

drive down Interstate 8 from San Diego to

Texas. (RT 2216, 2223, 2258-2259,

2264-2265.) He arrived at Donna Hatch’s

home in Terrell, Texas, on the evening of

June 1, 1979. He was alone. The van was

dirty, had a broken arm on the driver's

Chair, a broken mirror and a broken wind

wing. (RT 2364-2368.)

Hamilton was on bail pending

trial on a robbery charge. (See RT 3563.)

He took Donna with him to get addresses

for his defense in that case. She saw the

Buchanans’ credit cards in the van and

Hamilton used them for food and gas. (RT

2369-2373, 2376.)

- 26. -

On June 3, 1979, Donna was in

the van with Hamilton and her daughter and

Saw a highway patrolman. When Donna sud-

denly turned, while talking to her little

girl, Hamilton told her not to make sudden

moves because they could get shot. She

asked why, but he gave no direct answer.

Hamilton stopped at a pay phone to call

his brother and his friend, Clifton. (RT

2376-2379.) Donna heard Hamilton tell his

brother he had flown to Texas. (RT 2380.)

Cliff Harris and Hamilton knew

each other ail their lives and were good

friends. (RT 2489.) Hamilton told Harris

he drove to Texas in a blue El Dorado.

Harris was watching TV as they spoke and

Saw a report that the headless body had

been found. He told Hamilton. (RT

2490-2492; 3594, 3596.)

Hamilton had changed when he

returned to the van after talking to

Clifton Harris. (RT 2380.) Donna asked

- 27. -

what was wrong. Hamilton said he thought

he killed a man. When they returned to

her home, Hamilton said he would let the

van sit a while to see if anyone paid

attention to it and that he needed Texas

license plates. He asked her to go to a

car lot with him to get the plates, but

She refused. (RT 2380-2381.)

The next day, Donna broke up

with Hamilton. Hamilton said if she had

changed her mind because he had lied about

his wife being dead, then he would kill

the ex-wife. (RT 2382.)

Hamilton called Donna on

Wednesday, June 6, 1979, to discuzs

bringing her back to California to testify

in his robbery case. (RT 2470-2471.) At

one point, a friend of Donna’s also got on

the phone. Hamilton said, "I’m going to

kill you and your friend, too. And you

won't know when I’‘1ll be around because I

don't have to be driving this van, I can

- 28. -

be in another vehicle.” (RT 2474.) Donna

never saw Hamilton after that phone call.

(RT 2471-2472, 2382-2384, 2475.)

Hamilton continued to use the

Buchanans‘ credit card. It was stipulated

he charged a saw, screwdriver and set of

wrenches at Babcock Auto Supply in

Terrell, Texas, on June 6, 1979,

(2518-2519), and a butcher knife and two

hanks of twine at Moses five and ten cent

store on June 7, 1979. (RT 2519-2520.)

At about 8:30 a.m. on June 8,

1979, Hamilton entered Stuckey's

restaurant in Marietta, Oklahoma. He

charged food on Buchanans’ Visa, picked up

part of his food order and ran out as the

manager was calling for authorization on

the purchase. The manager called law

enforcement authorities and described

Hamilton and the van. (RT 2746-2747,

2755-2757.)

- 29. -

That afternoon, Hamilton was

stopped by Oklahoma officers and they ran

a VIN number check. They learned the van

belonged to a homicide victim. The

officers arrested Hamilton on the local

charges. (RT 2598-2599.)

On the way to jail, Hamilton

passed a poster offering a $500.00 reward

for David L. Wall, alias “Spider”. (RT

2578, 2581.)

On June 9, 1979, San Diego

police officers questioned Hamilton in

Oklahoma after reading him his Miranda

rights. Hamilton said he got the van from

Fran, a white woman who had left her

husband for “Spider”, and that he knew

"Spider" for six years.’ Fran and Spider

p i Pp

3. Neither Hamilton's parents (RT

2048, 2078), nor friends (RT 2489-2734)

ever heard of “Spider”. “Fran” was

Eleanor Buchanan's nickname. It was

written on the school papers she was

carrying on the night she disappeared

and also in an unmailed birth

announcement she had in her purse. (RT

2116-2117.)

—

- 30. -

were in Shreveport. They gave him the van

and her charge cards to use for food and

gasoline. (CT 2846-2848, 2854, 2862.)

Hamilton said he saw no blood in

the van and the blood on his shoe was his

own. (RT 2945-2946, 2904.) A crimi-

nalist testified at trial that the blood

on Hamilton's shoe was type O, like

Eleanor Buchanan's. (RT 2127.) Hamilton

was type A. (RT 3112, 3110, 3114.) The

criminalist further testified the blood on

the shce could not have come from the

van's carpeting as it had no blue fibers

in it. (RT 2127, 4017-4018.)

The police showed Hamilton a

photograph of Eleanor Buchanan during

questioning and asked if that were Fran.

He said it looked like her but Fran was a

little skinnier. Asked what Fran was

wearing when she and Spider picked him up

to leave San Diego, Hamilton said the only

- 31. -

time he saw her, she wore light jeans and

a beige non-leather purse. (RT

2873-2875.)

En route to San Diego Hamilton

was disturbed about the arrest for murder

and kept saying it was not going to stick

because all the police had was a body they

could not identify and a run-away wife.

(RT 2950.)

Shortly after Hamilton’s return

to San Diego, Terry Buchanan received a

letter with Hamilton’s return address in

county jail. It said, "You are probably

full of grief when you should be highly

pissed-off . . .” because Fran was not

dead but had left with Spider end was

smoking Sherman sticks. Buchanan turned

the letter over to the District Attorney's

Office. (RT 2140-2145.)

Hamilton hinted to a local

girlfriend in letters and during a jail

visit that she should call Terry Buchanan

- 32. =

and the press, posing as Eleanor Buchanan,

and tell them she was alive. (RT

3618-3621.)

On January 24, 1980, Hamilton

was talking about his case to another

prisoner. The prisoner said, “Who are you

trying to convince, Hamilton, me or

yourself?” Hamilton replied, "Well, I did

it, but they'll never prove it.” (RT

3023, 3030.) The prisoner reported the

conversation to a guard. (RT 3032.)

While transporting Hamilton

between the jail and courtroom for trial,

a deputy sheriff was tightening Hamilton's

security chains. Hamilton said, "You go

ahead and have your fun, I‘1ll have mine

later.” The guard responded, “I thought

you already had your fun?” Hamilton

replied, “Yeah, and I‘1ll kill you and a

lot more, too, and you may be first on my

list.” (RT 3327-3329.)

/

- 33. -

Defense

Hamilton testified that he saw

the Buchanans’ van parked on the street

with Eleanor’s purse on the passenger seat

just after midnight on May 31, 1979, and

took it. (RT 3608, 3439.) He never saw

the victim dead or alive. (RT 3438. )*

Hamilton believed she was killed by the

man who found the body, Harry Piper.

Hamilton said he must have dumped the body

and then pretended to find it. (RT 2428. )

Rebuttal

Harry Piper had two crushed

vertebrae and could not lift anything at

the time he found the body. (RT 3981.)

Furthermore, his car was parked over the

drag mark, so the body was there when he

6. However, he told police

officers during questioning that the

victim wore light colored jeans when she

left with Spider (RT 2875) and she was

in fact wearing tan levis when she left

for school the night she disappeared.

(RT 2100-2109.)

i eecineaanaaaeaniiaaae eae

- 34. -

drove up. (Trial Exh. T and RT 3718,

3879.)

Penalty Phase

Hamilton had five prior felony

convictions for forgery, burglary, and

auto theft. (RT 4478-4479.)

On November 7, 1976, he robbed

and beat Ruth Story, an elderly woman who

was walking down a Linda Vista Street with

a cane. (RT 4448-4452, 4552.) She was

hospitalized and had reconstructive

plastic surgery on her face. Five years

later, she was still in pain and unable to

chew even hamburger. (RT 4455,

4471-4472.) Ina letter to Ms. Story

dated November 17, 1978, Hamilton stated

he did not know her personally. (RT

4527-4528, 4530.) Eleven days later, the

district attorney received a letter from

Hamilton claiming the victim used to pay

him for sexual services from 1967-1969,

when he was a minor. (RT 4541.)

- 35. -

In February, 1979, after

spending the night in a motel with Rosie

Blackman, whom Hamilton had seen

frequently for three months, he punched

and kicked her all over her body. She

made no attempt to strike back. (RT 4429,

4434-4437.) A few weeks later, he came up

to her at work as she was cleaning her

taxi cab and repeatedly kicked her head

and body. Her supervisor called the

police. (RT 4435-4436.)

While in custody on October @&.

1980, Hamilton refused to go to court and

assumed a fighting stance when deputies

entered his cell. He had to be physically

carried down the corridor. He yelled

obscenities, threatened to fight the

deputies and spit in the face of one of

the officers. (RT 4400-4422.)

Penalty Defense

Hamilton, then 29 years old, had

essentially a good home life as the sixth

- 36. -

of eight children. His father is a

Baptist minister. (RT 4587.) He has two

sons, then eight and nine year old living

in Los Angeles with his ex-wife. (RT

4606-4608.) Relatives and family friends

asked the jury to spare his life.

(See also, People v. Hamilton, supra, 45

Cal.3d at 357-362, guilt phase facts; 364-

366, penalty phase facts. )

— — —_ a “i

—r |

~s

/

/

/

~ 37. +

REASONS FOR GRANTING THE WRIT

REMANDING AN APPEAL TO EXPAND

TEE CLAIMS OF THE ORIGINAL WRIT

PETITION WITH KNOWN-ABANDONED

CLAIMS, DELAYS EXECUTION OF THE

STATE'S VALID JUDGMENT OF DEATH

AND PERMITS THE PIECEMEAL

LITIGATION AND GAMESMANSHIP

PRECLUDED BY RULE 9(B) OF THE

HABEAS RULES AND MCCLESKEY V.

ZANT

The writs of mandamus and

prohibition should be issued because the

Ninth Circuit's remand sanctions the use

of Rule 60(b) of the Federal Rules of

Civil Procedure by a condemned state

inmate as vehicle for raising claims which

were previously abandoned, thereby

rendering a nullity this Court’s recent

jurisprudence on abuse of the writ.

Petitioner has no other adequate remedy

available to prevent litigating a matter

which is in excess of the jurisdiction of

the Court of Appeals and the district

court.

On February 26, 1990, the

district court granted petitioner’s

- 38. -

October 17, 1989, motion to have Hamilton

bring his known claims or abandon them.

After many opportunities to return to the

state court, petitioner abandoned his

claims by not including them in his

amended petition on October 22, 1990,

proceeding to a three-week evidentiary

hearing, decision and appeal. Yet, on

July 7, 1992, the Ninth Circuit remanded

the case to the district court so that

Hamilton could present his known-abandoned

claims by way of a FRCP Rule 60 motion.

Pursuant to section 165l(a) of

Title 28 of the United States Code and

United States Supreme Court Rule 20.1,

petitioners Vasquez and Lungren

respectfully request this Court to issue a

Writ of Mandamus directing the United

States Court of Appeals for the Ninth

Circuit (Justices Schroeder, Fletcher and

Trott), to vacate, in its entirety, the

order of July 7, 1992, remanding Hamilton

- 39. -

v. Vasquez, to the district court and a

writ of prohibition to the United States

District Court (Judge Rudi M. Brewster) to

cease proceedings on the Rule 60(b)

motion.

A. The Ninth Circuit

Remand For Purposes of

the District Court

Entertaining a Rule

60(b) Motion is

Contrary to the Law

Governing Habeas

Corpus Procedure and

in Excess of the

Appellate Court's

Jurisdiction

The success of Hamilton’s Rule

60(b) motion would render meaningless the

limitations in habeas corpus. upon

deliberate abuse of the system for

purposes of delay. It is this very

possibility which gives rise to the

absolute principle of law that the Federal

Rules of Civil Procedure do not, and

cannot, apply to habeas corpus proceedings

when they are inconsistent with habeas

corpus rules. (Rule 11, Rules Governing

- 40. -

2254 Proceedings; Pitchess v. Davis, 421

U.S. 482, 489-490, (1975).)

This Court has held that Rule 60

of the Federal Rules of Civil Procedure is

not applicable to habeas corpus when the

effect of applying the rule would be to

alter the statutory exhaustion requirement

of section 2254 of Title 28 of the United

States Code. (Pitchess v. Davis, supra,

421 U.S. 482.) As in Pitchess, Hamilton's

motion for relief under Rule 60 would

circumvent the wealth of legal authority

designed to prevent attempts to abuse the

writ and engage in piecemeal litigation.

(See, e.g., McCleskey v. Zant, 499 U.S.

, 113 L.Ed.2d 517, 111 §.Ct. 1454

(1991); Sawyer v. Whitley, U.S. P

60 U.S.L.W. 4655, (6/22/92); Rule 9(b)

Rules Governing 2254 Proceedings. )

Rule 9(b) of the Rules Governing

Section 2254 Proceedings provides for the

dismissal of subsequent petitions which

- 41. -

present new or different grounds, when the

failure to assert those claims in prior

petitions constitutes an abuse of the

writ. When the government pleads abuse of

the writ in a second or subsequent habeas

petition, it is incumbent on the

petitioner to show “cause” for failing to

raise the claim and "prejudice” from the

failure.

In the absence of a showing of

“cause and prejudice”, the petitioner must

Show a fundamental miscarriage of justice

would result if the claim is not

entertained. (McCleskey v. Zant, supra,

113 L.Ed.2d 517.) A miscarriage of

justice requires the petitioner to show

that a constitutional violation has

probably caused the conviction of someone

actually innocent of the crime or penalty.

(Sawyer v. Whitley, supra, 60 U.S.L.W.

4655.)

- 42. -

When the district court denied

Hamilton's motion to alter or amend the

judgment and motion for new evidentiary

hearing, the effect was to require

Hamilton to file a subsequent petition for

any additional relief sought. Hamilton

now seeks to avoid the stringent law

applicable to abusive and successive

petitions by reopening habeas proceedings

in the district court via Rule 60(b) even

though an appeal is currently pending

before the Ninth Circuit. By even

entertaining that motion, the Ninth

Circuit and district court sanction its

use to expand the scope of a fully

litigated federal petition. In so doing,

the lower court creates the potential for

the use of Rule 60 to avoid this Court's

pronouncements concerning abuse of the

writ. A prisoner would avoid the

7. Use of Rule 60(b) to reopen

district court proceedings without a

showing of cause and prejudice, or

- 43. -

necessity of showing cause and prejudice,

or miscarriage of justice simply by the

use Of Rule 60. The Ninth Circuit should

not have permitted Hamilton an opportunity

to circumvent these basic and absolute

prerequisites to additional habeas claims

being raised.

Since being sentenced to death

Over a decade ago, Bernard Hamilton has

enjoyed protracted delay while the

district court repeatedly ordered him to

exhaust and bring known claims. Hamilton

expressly and personally waived known

claims not raised in the district court

proceedings despite repeated opportunities

to bring his claims.

On October 17, 1989, Hamilton

was put on notice to bring forward all

known claims by petitioner's motion.

miscarriage of justice is being

sanctioned by the Ninth Circuit in more

than this case. (See, Carriger v.

Lewis, F.2d , Filed 7/28/92, 92

DAR 10417 at p. 10418 (9th Cir. 1992).)

- 44, -

(Neuschafer v. Whitley, 860 F.2d 1470,

1482 (9th Cir. 1988).) The district court

granted the motion on March 16, 1990. On

June 8, 1990, Hamilton’s two habeas

attorneys identified 38 issues and

Hamilton was ordered to pursue all

unexhausted claims in the state court, or

those claims would be waived or abandoned.

The district court’s order expressly

Stated petitioner would “voluntarily,

knowingly, and intelligently [have] waived

and abandoned” all unexhausted claims not

filed in state court and all exhausted

claims not filed in federal court by

October 22, 1990. All of the claims which

are the ultimate basis for the Rule 60(b)

motion were clearly known, or should have

been known, to Hamilton before his amended

petition was ultimately filed in federal

court on October 22, 1990. Accordingly,

the subject of Hamilton's 60(b) motion

must be raised in a subsequent petition.

wa - 45. -

The Rule 60(b) motion is

predicated on a claim that habeas counsel

misinterpreted McCleskey v. Zant. The

very basis of the motion serves to

illustrate why the Rule 60(b) motion is a

manipulative device. Mistake of habeas

counsel cannot excuse the purposeful

withholding of a known claim absent a

showing of cause and prejudice by

Hamilton. Hamilton has no right to

counsel in his collateral attack on the

state’s judgment of conviction. (Coleman

v. Thompson, 501 U.S. , 115 L.Ed.2d

640, 111 S.Ct. 2546 (1991); Pennsylvania

v. Finley, 481 U.S. 551 (1987).)

Accordingly, his counsel's purported

mistake cannot serve as “cause” for his

failure to bring his claims in a timely

manner during proceedings on his "first”

petition. Since it is obvious that

Hamilton cannot clear the hump of cause

and prejudice for a subsequent petition,

- 46. -

he attempts to manipulate inapplicable

Federal Rules of Civil Procedure to

achieve the desired delay.

If Hamilton is permitted to

litigate his counsel’s “mistake of fact”

in the district court in the context of a

Rule 60(b) motion, he is circumventing,

and thereby eliminating, the requirement

of cause and prejudice which applies in

habeas corpus litigation. Moreover, the

prompt resolution of Hamilton's appeal is

being delayed to accommodate a claim of

mistake by counsel which is patently

absurd. Hamilton and his counsel were

repeatedly warned that a failure to raise

known claims would constitute a waiver of

those claims. The issuance of McCleskey

v. Zant merely served to confirm the

propriety of the district court’s repeated

orders to exhaust and bring known claims

or those claims would be waived.

-~ 47. -

Even if counsel actually

misunderstood the holding in McCleskey,

there is no explanation for counsel's

failure to understand the repeated and

clear orders of the district court .2!

Indeed, the underpinnings of Hamilton's

Rule 60(b) motion rests with the premise

that habeas counsel believed it could

ignore the repeated warnings and orders of

the district court with impunity.

Separate and apart from the holding in

McCleskey, such disregard for the express

orders of a court cannot be condoned or

rewarded.

Permitting a Rule 60(b) motion

to be entertained in the district court

8. The purported mistake of habeas

counsel in understanding the effect of

McCleskey also suggests that McCleskey

represents some unanticipated new

development in the law. To the

contrary, the Ninth Circuit has

concluded that McCleskey is not a new

rule of law subject solely to

prospective application. McCleskey

applies retroactively. (Harris v.

Vasquez, 949 F.2d 1497 (9th Cir. 1991).)

- &. -

has the effect of eliminating the

applicable habeas rules and decisions of

this Court pertaining to abuse of the

writ. This Court should not permit the

Ninth Circuit to allow an end run around

the habeas corpus procedures which

safeguard the states from endless

litigation and the attendant absence of

finality in their judgments.

B. The Remand for a Rule

60(b) Motion is

Inconsistent With the

Prompt Resolution of

Hamilton's Appeal

This Court has explicitly stated

a rule that whenever there is a stay in

effect against a state enforcing a

judgment of death, the federal courts have

a “duty to take all steps necessary to

ensure a prompt resolution of the matter,

consistent with its duty to give full and

fair consideration to all the issues

presented in the case.” (In re Blodgett,

502 U.S. » 216 L.8d.24 669, 112 8.Ct.

- 49. -

674 (1992).) The remand by the Ninth

Circuit is unrelated to the court’s

consideration of the issues presented in

Hamilton's appeal. Indeed, the remand

affords Hamilton an opportunity to

improperly expand the issues in the

appeal.

Resolution of Hamilton's appeal

should not be delayed in order to permit

him to pursue additional claims in the

district court. (In re Blodgett, supra.)

An appellate court's effort to await

combined consideration of a continual

stream of litigation from a condemned

prisoner invariably results in prejudice

to the state from protracted delay. (See,

In re Blodgett, supra, 116 L.Ed.2d. at p.

674.)

This Court has stated with

unmistakable clarity that adherence to its

decision in McCleskey v. Zant and prompt

enforcement by the district court and

- 50. -

courts of appeal of that decision, will

obviate in many cases the basis for the

Ninth Circuit‘’s perceived need to

accommodate multiple filings. (In _re

Blodgett, supra, 116 L.Ed.2zd at p. 674.)

Similarly, adherence to the decision in

McCleskey by the Ninth Circuit would ‘

necessarily obviate the need to

accommodate Hamilton's Rule 60(b) motion

through a remand to the district court.

Although the remand from the

Ninth Circuit was limited, and the appeal

briefing has been ordered to proceed as

scheduled, the delay attendant with the

remand is undeniable. As the order of

remand provides:

“, . » The district court

shall keep this court advised on

an ongoing basis as to the

hearing schedule it sets and any

actions it takes on the motion.”

“, . . Depending upon the

action taken by the district

court in respect to the 60(b)

motion, this court may make

further orders that might take

the form of a full remand, a

further briefing order, or a

- 51. -

combination. This court in this

appeal will provide whatever

Opportunity is necessary to all

parties to respond to the

district court’s actions on the

60(b) motion.” (Appendix B,

emphasis added. )

The remand necessarily entails

briefing, motions and argument before the

district court on the Rule 60(b) motion.

It may entail the taking of evidence.

Invariably, Hamilton's appeal will be

delayed, despite completion of appellate

briefing by the parties, due to the

necessity of resolving the 60(b) motion in

the district court. Indeed, no time

constraints for consideration of the Rule

60(b) motion are contained in the Ninth

Circuit's limited remand. The prompt

resolution of Hamilton's appeal has now

taken a back seat to the litigation of a

motion which should not even be

entertained inasmuch as it is totally

inconsistent with Rule 11 of the Rules

Governing 2254 Proceedings and this

- 52. -

Court’s decisions in McCleskey and

Blodgett.

The Ninth Circuit order

permitting a Rule 60(b) motion in this

matter violates both the letter and spirit

of the law and is unmistakably contrary to

both McCleskey and Blodgett.

- Hamilton has had his proverbial

day in court for well over a decade now.

From the time of his arrest he has engaged

in delay tactics. Indeed, the district

court, after hearing witnesses during the

evidentiary hearing, observed the

following about Hamilton's pre-trial

requests:

“{Tjhe court is left with

the inescapable conclusion that

[Hamilton] was using every

tactic available to him to

create delay.” (ER 171.)

Hamilton is still bent on delay.

At this point, delay is through deliberate

piecemeal litigation. The Ninth Circuit

has cleared the path for needless delay.

- 53. -

Absent intervention by this Court,

Hamilton's appeal will ping-pong between

the district court and the appellate

court, one issue at a time for the

remainder of his natural life.

If this Court fails to act, the

Ninth Circuit remand order will serve as a

blueprint for the circumvention of this

Court’s express and repeated holdings

condemning piecemeal litigation and undue

delay in

C.

writs of

inferior

of Title

i.e. the

capital habeas litigation.

This Court is

Empowered to Grant

Petitioner Relief

This Court is empowered to issue

mandamus and prohibition to

courts pursuant to section 1651

28 of the United States Code,

All Writs Act. While Rule 20.1

of the United States Supreme Court Rules

cautions

that issuance of the writ is a

matter of “sound discretion sparingly

exercised,” the writ may be issued to

- 54. -

secure justice in the absence of any other

adequate remedy. (Maryland v. Soper (No.

1), 270 U.S. 9, 29, (1926).)

The authority of this Court to

exercise mandamus extends to those cases

that are within its appellate

jurisdiction, despite the fact no appeal

has yet been perfected. (Roche v.

Evaporated Milk Assn., 319 U.S. 21, 25

(1943); F.T.C. v. Dean Foods Co., 384 U.S.

597, 603 (1966).) Mandamus may not be

used as a substitute for an appeal. (Kerr

v. United States Ct. for N.Dist. of Cal.,

426 U.S. 394, 403 (1976).)

Mandamus is appropriate both to

confine an inferior court to the lawful

exercise of its prescribed jurisdiction

and to compel the court to exercise its

authority when it has a duty to do so.

(Roche v. Evaporated Milk Assn., supra,

319 U.S. at 26; Will v. Calvert Fire Ins.

Co., 437 U.S. 655, 661 (1978).) The party

- 55. -

seeking mandamus must show that the right

to issuance of the writ is "clear and

indisputable.” (Bankers Life & Casualty

Co. v. Holland, 346 U.S. 379, 384 (1953);

Kerr v. United States District Court for

N.Dist. of Cal., supra, 426 U.S. at 403.)

Petitioners have met these

Criteria for issuance of a writ of

mandamus to the Ninth Circuit. The Ninth

Circuits remand in the midst of an appeal

to permit Hamilton to bring a motion with

the effect of reopening proceedings before

the district court and circumventing

habeas corpus law governing abuse of the

writ presents an exceptional circumstance

and merits relief. This Court offers the

only available forum to redress the abuse

of discretion by the Ninth Circuit.

(Supreme Court Rule 20.1.)

/

/

- 56. -

D. The State Has No Other

Adequate Remedy

Available to Redress

the Appellate Court's

Jurisdictional Error

The State has a compelling

interest in the finality of habeas corpus

litigation. Permitting litigation in the

district court during the pendency of

Hamilton's appeal for the purpose of

circumventing the applicable restrictions

on abuse of the writ denies the State's

rights which cannot be adequately

redressed after the burden of litigating

waived claims.

An extraordinary writ from this

Court is the sole means of preventing a

remand for a manipulative and

inappropriate mid-appeal motion in the

district court with the attendant waste of

prosecutorial and judicial resources, and

delay in a capital case. During the

pendency of Hamilton's appeal, there is no

= $7. -

final decision which would permit

petitioners to seek review by certiorari.

/

/

/

/

/

- 58. -

CONCLUSION

For the reasons set forth above,

Petitioners respectfully request this

Court grant a Writ of Mandamus to the

United States Court of Appeals for the

Ninth Circuit, (Circuit Judges Schroeder,

Fletcher and Trott) and a writ of

prohibition to the district court (Judge

Rudi Brewster).

DATED this 7th day of August, 1992.

Respectfully submitted,

DANIEL E. LUNGREN, Attorney General

of the State of California

GEORGE WILLIAMSON, Chief Assistant

Attorney General

GARY W. SCHONS, Senior Assistant

Attorney General

LOUIS R. HANOIAN

Supervising Deputy Attorney General

HOLLY D. WILKENS,

D ty Attorney General

AK

PAT ZAHAROPPULOS, ;

Supervising Deputy Attorney General

Attorneys for Petitioner

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