Petition for Writ of Certiorari — Calderon v. Phillips

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Supreme Court, U.S.

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OCT 16 19965

No. 95 -

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1995

ARTHUR CALDERON, Warden of San Quentin Prison and

DANIEL E. LUNGREN, Attorney General, Petitioners,

Vv.

RICHARD LOUIS ARNOLD PHILLIPS, Respondent.

ON PETITION FOR WRIT OF CERTIORARI

FROM JUDGMENT OF REVERSAL BY THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

(BETTY B. FLETCHER, STEPHEN REINHARDT, AND

ANDREW J. KLEINFELD, CIRCUIT JUDGES)

PETITION FOR WRIT OF CERTIORARI

DANIEL E. LUNGREN

Attorney General

GEORGE WILLIAMSON

Chief Assistant Attorney General

ROBERT R. ANDERSON

Senior Assistant Attorney General

WILLIAM G. PRAHL

Deputy Attorney General

EDMUND D. McMURRAY

Supervising Deputy Attorney General

Counsel of Record

1300 I St., Suite 125

P.O. Box 944255

Sacramento, CA 94244-2550

Telephone: (916) 324-5281

Counsel for Petitioners

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(DEATH PENALTY CASE)

QUESTIONS PRESENTED

1. Does the creation of an exception which

allows piecemeal review in the federal courts of the guilt

phase of respondent’s capital trial while an automatic

appeal of his penalty phase retrial is still before the State

Supreme Court violate the well-established rules of

comity and abstention which previously have precluded

federal intervention in state criminal cases before those

proceedings have been completed?

. 2 Can a federal circuit court make valid

findings of either "extraordinary delay" or “exceptional

circumstances of particular urgency" to reject the rules of

comity and abstention in a state capital case without first

considering a comprehensive record of the proceedings

before the state courts and in the absence of any factual

record supporting these findings?

3. Can a finding of “extraordinary delay" to

permit federal court intervention into a state capital case

in which the penalty phase retrial is presently before the

State Supreme Court be based solely on the fact that 15

years haa elapsed before the defendant’s sentence had

finally been resolved when a majority of time spent on

the case was the result of the defendant’s own dilatory

tactics?

Page

OPINIONS BELOW 1

STATEMENT OF JURISDICTION 2

CONSTITUTIONS, STATUTES OR

REGULATIONS 2

STATEMENT OF THE CASE 2

A. Facts of the Crime 2

B. Procedural Background 3

Direct Appeal 4

Penalty Retrial 5 .

Second Direct Appeal 5 |

State Habeas Corpus 6

Federal Habeas Corpus 6 |

The Ninth Circuit’s Published |

Reversal 10

ae es De a ae ~

TABLE OF CONTENTS, CONTD

iii

ARGUMENT 13

II.

PERMITTING A CAPITALLY

CONVICTED DEFENDANT TO

CHALLENGE HIS GUILT CONVICTION

IN THE FEDERAL COURTS ON HABEAS

CORPUS WHILE HIS PENALTY PHASE

RETRIAL IS STILL PENDING ON

APPEAL IN THE STATE COURT IS AN

AFFRONT TO THE TRADITIONAL

RULES OF COMITY AND ABSTENTION,

ESPECIALLY SINCE THE FINDING OF

PRESUMPTIVELY PREJUDICIAL

EXTRAORDINARY DELAY IN THE

STATE PROCEEDINGS IS DEVOID OF

ANY FACTUAL SUPPORT 13

THE THREE JUDGE PANEL

IMPROPERLY REVERSED THE

DISTRICT COURT’S DISMISSAL OF

RESPONDENT’S HABEAS CORPUS

PETITION ON GROUNDS OF

ABSTENTION UNDER COMITY AND

FAILURE TO EXHAUST BECAUSE OF

RESPONDENT’S PENDING PENALTY

APPEAL IN THE STATE COURTS WHEN

IT FOUND THE GUILT PHASE HAD

BEEN EXHAUSTED IN THE STATE

COURTS AND THAT A DELAY OF

FIFTEEN YEARS, WITHOUT MORE,

JUSTIFIED FEDERAL INTERVENTION 23

CONCLUSION 30

Cases

Barker v. Wingo,

407 U.S. 514 (1972)

Brady v. Maryland,

373 US. 83 (1963)

Burris v. Farley,

51 F.3d 655 (7th Cir. 1995)

Coe v. Thurman,

922 F.2d 582 (9th Cir. 1991)

Ex Parte Hawk,

321 U.S. 114 (1944)

Hillery v. Sumner,

496 F.Supp. 632 (E.D. Cal. 1980)

Huffman v. Pursue, Lid.

420 US. 592 (1974)

Judice v. Vail,

430 US. 327 (1977)

McCleskey v. Zant,

499 U.S. 467 (1991)

People v. Jackson,

67 Cal.2d 96 (1967)

16, 17

24, 25

12, 13

OTM OM CREE EE ON te ala 2

TABLE OF AUTHORITIES, CONTD

People v. Kemp,

10 Cal.3d 611 (1974) 23

People v. Phillips,

41 Cal.3d 29 (1985) 3-5, 23, 26, 28

Phillips v. Vasquez,

56 F.3d 1030 2

Rose v. :

455 U.S. 509 (1982) 13, 18, 20

Snyder v. Massachusetts,

291 U.S. 97 (1934) 22

Vasquez v. Hillery,

474 U.S. 254 (1986) 20

Younger v. Harris

401 U.S. 37 (1971) 12, 13, 15-17, 29

Statutes

California Penal Code

§ 1651, subdivision (a) 2

Court Rules

United States Supreme Court

Rule 20.1 2

TABLE OF AUTHORITIES, CONTD

Other Authorities

Title 28 United States Code

§ 2254 2

§ 2254(b) 15, 24, 29

§ 2254(b)-(c) 13

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1995

No. 95 -

ARTHUR CALDERON, Warden of San Quentin Prison and

DANIEL E. LUNGREN, Attorney General, Petitioners,

RICHARD LOUIS ARNOLD PHILLIPS, Respondent.

Petitioners respectfully petition for a writ of

certiorari to review the judgment of the United States

Court of Appeals for the Ninth Circuit reversing the

order of the United States District Court for the Eastern

District of California dismissing without prejudice

respondent's petition for writ of habeas corpus

challenging his guilt trial on the grounds (1) of

abstention, and (2) failure to exhaust state remedies

since the automatic appeal of the penalty phase retrial

was already pending in the California Supreme Court.

OPINIONS BELOW

In a case which had been pending before the

Ninth Circuit for more than three years, the Ninth

Circuit on May 26, 1995, issued an opinion reversing the

dismissal order of the United States District Court for

the Eastern District of California and reinstating

respondent's petition for writ of habeas corpus

challenging his guilt trial in that District Court, on the

grounds of the extraordinary delay respondent faced if

Ria cc cet a0 a a a

forced to wait until the automatic appeal of his penalty

phase retrial is resolved in the state courts before being

able to challenge the guilt trial in the federal courts.

The Ninth Circuit held that respondent “should not be

required to wait more than fifteen years for his sentence

to be finally resolved before he may challenge the

constitutionality of his conviction." Phillips v. Vasquez, 56

F.3d 1030; Appendix A.

STATEMENT OF JURISDICTION

This Court has jurisdiction under 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.

CONSTITUTIONS, STATUTES OR REGULATIONS

28 United States Code section 2254.

STATEMENT OF THE CASE

A. Facts of the Crime

On December 7, 1977, respondent lured

building contractors Rose and Bartulis to a remote area

in Madera County, ostensibly to purchase stolen

insulation. There, respondent shot the two men, took

their wallets, poured gasoline over them, and set them

on fire with matches he had borrowed from them earlier.

When Rose fled, on fire, respondent ran over him and

drove off. Rose lived but Bartulis did not. Respondent

was arrested in Utah on March 17, 1978, and, while

awaiting extradition, he mailed out a hit list with detailed

instructions to kill Rose, respondent’s witness-girlfriend,

respondent’s best friend, and respondent’s own mother

who could blow his putative alibi. People v. Phillips, 41

Cal.3d 29, 39-42, 75-77, 222 Cal.Rptr. 127, 711 P.2d 423

(1985).

B. Procedural Background”

1. Because of the unique procedural history of this

case, the Ninth Circuit issued its novel opinion without

an accurate presentation of the factual record. Thus, the

opinion in this case is neither supported by any facts nor

is it reflective of the actual facts. As will be shown infra,

before respondent’s automatic appeal from his penalty

retrial could be ruled on by the California Supreme

Court, respondent filed a habeas corpus petition in the

District Court, raising only guilt phase issues. The court

denied the petition before petitioner could even respond

and lodge copies of the relevant record. The Ninth

Circuit, after granting a certificate of probable cause to

appeal, initially questioned whether it had jurisdiction to

proceed and asked for briefing on the issue. When no

briefing was forthcoming, the Ninth Circuit issued an

order to show cause and had both parties answer three

questions, none of which addressed the issue of delay.

After the issuance of the Ninth Circuit’s opinion

reversing the district court’s denial of the habeas corpus

petition, petitioner sought rehearing. This was the first

instance which petitioner had to brief the issue of delay.

Petitioner also attempted to lodge with the Ninth Circuit

the relevant documents to show what actually took place

procedurally between respondent’s first capital trial and

1. Direct Appeal

A jury convicted respondent of the 1977 murder

of Bartulis during the course of robbery and sentenced

him to death. People v. Phillips, supra, 41 Cal.3d 29.

Appeal to the California Supreme Court is automatic.

Id. at 38. Date of sentence was February 20, 1980.

After the case was briefed on appeal and orally argued

on October 4, 1982, the California Supreme Court on

February 23, 1984, requested supplemental briefing,

which formed the basis for the December 31, 1985,

his penalty retrial. Apparently uninterested in the actual

facts dealing with the procedural history of this complex

case, the Motion to Lodge Documents was denied, and

the petition for rehearing was denied. Petitioner is filing

an accompanying motion for judicial notice and to lodge

those same documents with this Court; they are too

voluminous to utilize making them part of the appendix.

If this Court grants certiorari and petitioner’s motion to

lodge, in any brief on the merits, the lodged documents

will be referred to by their respective item numbers

under the Notice of Lodging (N.L.), with the exception

that Items 1-7, the seven volume Clerk’s Transcript from

the penalty retrial, which will be referred to as "CT" and

the appropriate sequential page number. Also, Item 11,

a draft of the Statement of the Case at respondent’s

penalty retrial, has been expanded to include a draft of

the Statement of Facts from that retrial. An additional

item, Item 16, shows the latest developments in the trial

record certification process. Petitioner will refer to the

expanded Item 11 to show respondent has not been

prejudiced by the delay and that he is in fact responsible

for much of the delay.

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penalty reversal. Appendix V at 4-6; People v. Phillips,

supra, 41 Cal.3d at 84.

2. Penalty Retrial

The hearing on the remittitur was on March -

1986. It is important to note that it is Respondent

Phillips who personally waived time for his penalty phase

retrial rather than requesting a speedy retrial.

Thereafter, respondent -- who eventually achieved co-

counsel status -- filed a series of motions, including

several state habeas corpus petitions, that repeatedly

delayed the originally scheduled October 27, 1986, retrial.

The actual retrial did not commence until September 23,

1991, and respondent was again sentenced to death on

March 13, 1992. Appendix U at 3-26; Appendix V at 6-

13. Appeal to the California Supreme Court is again

automatic. People v. Phillips, supra, 41 Cal.3d at 38.

3. Second Direct Appeal

Counsel for respondent on direct appeal,

Donald J. Horvath -- who is also advisory counsel] to

respondent in the instant Ninth Circuit proceedings at

issue -- had received at least 10 extensions of time to

seek corrections to the record of the second penalty trial.

This was because respondent had done something

unique; he tape recorded his entire penalty retrial and

appellate counsel had the time consuming task of

comparing the tapes with the typed transcripts.2/

2. Thereafter the state had to await copies of the

tapes as furnished by counsel Horvath and then check

the suggested record corrections with the tapes and the

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Appendix F; Appendix Q at 2-4; Appendix U at 28-30;

Appendix V at 17-18.

4. State Habeas Corpus

According to respondent’s habeas corpus

petition filed in the United States District Court for the

Eastern District (Appendix M),?/ respondent filed some

six habeas corpus petitions and one habeas corpus

appeal in the state courts between April 1988 and

September 1991. There were at least two evidentiary

hearings and one full blown appellate court briefing. All

petitions and the one appeal were denied. Appendix M

at 3 - 19; Appendix V at 13-14.

5. Federal Habeas Corpus

On March 4, 1992, respondent filed a petition

for writ of habeas corpus in the Federal District Court

for the Eastern District pursuant to 28 U.S.C. § 2254.

Appendix N at 2. On March 12, 1992, the petition

was denied without prejudice, the court noting that

transcripts, and had not yet completed this task when the

Petition for Rehearing and Suggestion for Rehearing en

Banc was filed in the Ninth Circuit. Appendix V at 17-

18.

3. Because the actual claims on federal habeas

corpus are irrelevant to this petition, petitioner includes

the petition as Appendix M, but not the accompanying

Brief in Support of Petition for Writ of Habeas Corpus.

4. This is the District Court docket sheet for

respondent’s habeas corpus case.

respondent was not to be sentenced until] March 13,

1992. The court declined to interfere with ongoing state

criminal proceedings on abstention grounds and further

found respondent had failed to exhaust in the state’s

highest court. Appendix B at 2-4; Appendix N at 2. On

May 14, 1992, the District Court denied respondent’s

request for a certificate of probable cause to appeal.

Appendix C. On June 18, 1992, the Ninth Circuit

granted respondent's request for a certificate of probable

cause. Appendix D. On August 26, 1992, the Ninth

Circuit set briefing schedule. Appendix E. On

October 1, 1992, attorney Donald Horvath was appointed

as advisory counsel] to respondent and ordered to file a

brief within 60 days on the question of whether the

appeal should be dismissed for lack of exhaustion.

Petitioner was given the option of responding within 21

days of receipt of that brief. Appendix F. On

October 16, 1992, the former briefing schedule set

August 26, 1992, was cancelled deferring to the schedule

set on October 1, 1992. Appendix G. On December 2,

1993 -- no brief by respondent’s counsel having been

filed as ordered on October 1, 1992 -- the Ninth Circuit

issued an order to show cause directing that three

questions be answered within 30 days of receipt of the

order. The questions were:

"(1) Each shall report on the status of any

proceedings in respect to Richard Phillips

convictions and sentence of death pending in

the courts of the State of California.

"(2) Why should not this appeal be

dismissed without prejudice as premature in

that all proceedings in the state court had not

been exhausted as of the time the petition was

filed?

"(3) Why should not Richard Phillips

make application in the state court for any

materials, computer investigations, etc. needed

in aid of his appeals and habeas corpus review

until] a petition for habeas corpus is properly

before this court?" Appendix H.

Petitioner filed an Appellee’s Return to Order to Show

Cause on December 27, 1993. Appendix O.

Respondent filed a Petitioner’s Response to Order to

Show Cause. Appendix P. Counsel Horvath filed a

Response to Order to Show Cause. Appendix Q. Oral

argument was on October 11, 1994. Appendix 1%

Respondent filed a supplemental brief following

argument, with a cover letter dated February 15, 1995.

Appendix S. By letter dated April 4, 1995, respondent's

counsel Horvath informed the court he was enclosing

docket sheets from the. trial court as to the trial, and

from the California Court of Appeal, Fifth Appellate

District, as to two habeas corpus petitions filed therein,

in response to the court’s request for further information.

Appendix T.£/ On May 26, 1995, the Ninth Circuit

5. Prior to oral argument, petitioner by letter dated

July 29, 1994, cited additional authorities for oral

argument. Appendix R-1. Respondent, by letter dated

August 28, 1994, addressed the additional authorities.

Appendix R-2.

6. The trial court docket sheets -- on penalty retrial

only -- are Appendix U. They are extremely cursory.

The. relevant items in Appendix U are all contained in

N.L. — Items 1-8 (CT), the more complete Clerk’s

Transcript. Before the Ninth Circuit had obtained the

docket sheets from counsel Horvath, petitioner had, at

that court’s telephonic request, duplicated the entire

clerk’s transcript from respondent’s penalty retrial for the

court. Before the transcripts could be mailed, the court

by telephone cancelled the request.

issued its opinion reversing the dismissal of the federal

habeas corpus petition by the District Court and

reinstating the petition. Appendix A. On June 8, 1995,

petitioner filed a Petition for Rehearing and Suggestion

for Rehearing En Banc in the Ninth Circuit. Appendix

V. On June 30, 1995, the Ninth Circuit directed

respondent and his advisory counsel to respond to the

petition for rehearing. Appendix J. Responses were

filed by respondent (Appendix W) and his advisory

counsel, Appendix X. On July 18, 1995, petitioner

mailed a cover letter (Appendix Y-1) and Notice of

Lodging (Appendix Y-2) along with copies of the Clerk’s

Transcript of respondent’s penalty retrial, California

Supreme Court docket sheets for respondent’s two

capital appeals, a request from the California Supreme

Court for supplemental briefing in respondent’s first

capital appeal, respondent’s request for correction of the

record in his second capital appeal, petitioner’s limited

informal response, and petitioner’s letter to the state trial

court indicating completion of the review of respondent’s

request to correct the trial transcript./ Respondent’s

advisory counsel objected. Appendix Z. On July 24,

1995, petitioner faxed a Motion to Lodge those

documents that accompanied the Notice of Lodging to

the Ninth Circuit. Appendix Y-3. The motion was

opposed by respondent (Appendix AA) and his advisory

counsel. Appendix BB. On August 7, 1995, the motion

to lodge documents was denied by the Ninth Circuit.

Appendix K. On September 14, 1995, the Ninth Circuit

denied petitioner’s petition for rehearing and suggestion

for rehearing en banc. Appendix L.

7. Accompanying the instant petition is a Motion

for Judicial Notice and to Lodge those same documents

with this Court. See fn. 1, supra.

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6. The Ninth Circuit’s Published Reversal

In its published reversal of May 26, 1995, the

Ninth Circuit ruled that requiring respondent to wait

more than 15 years to have the federal courts consider

his challenge to the guilt phase of his capital trial was

too long. This finding of "extraordinary delay” was based

on a simplistic analysis which considered only (1) that

respondent had been convicted in 1980, (2) that the

California Supreme Court reversed the death penalty and

affirmed the guilt conviction in 1985, and (3) that

respondent had not been resentenced to death until

1992, and finally, (4) that his automatic appeal from the

penalty phase retrial was still pending before the

California Supreme Court. This combination of facts,

without any detailed analysis, was enough for the Ninth

Circuit. The Ninth Circuit found that the guilt phase

conviction was final in the California Supreme Court,

and, according to respondent, was fully and completely

exhausted. The Ninth Circuit ruled that after such a

long passage of time, and with no foreseeable date for

the resolution of the penalty phase retrial by the

California Supreme Court, respondent could now

challenge his guilt conviction in the federal courts while

the automatic appeal of his penalty retrial was still

pending before the California Supreme Court. Appendix

The Warden of San Quentin-Prison and the

Attorney General of the State of California petition for

certiorari to correct the Ninth Circuit’s unsupported and

unwarranted finding of finality and extraordinary delay

and the Ninth Circuit’s order permitting respondent to

challenge his guilt conviction on federal habeas corpus

while the automatic appeal of the penalty phase retrial

is still pending before the California Supreme Court.

REASONS FOR GRANTING THE WRIT

Certiorari should be granted because the

opinion of the Ninth Circuit establishes a dangerous

precedent which will allow the District Courts across the

country to intrude into pending state capital cases. Few

would dispute the axiom that capital cases are more

complex and take more time to resolve than ordinary

criminal cases. It is equally beyond dispute that delay is

the hallmark of the defense in these difficult cases.

Under the ruling of the Ninth Circuit, in a capital case

wherein the guilt phase is affirmed on ashes park the

death penalty is reversed to later be retried, the mere

passage of time will permit a capital defendant to

bifurcate the case and challenge his guilt trial in the

federal courts while the penalty trial is still pending final

resolution in the state courts. There is simply no

support whatever for a rule establishing fifteen years as

a per se showing of presumptively prejudicial

extraordinary delay. Rather than advancing the prompt

resolution of these already difficult cases, the rule

announced by the Ninth Circuit actually rewards a

defendant for delaying the resolution of the penalty

retrial.

This misconception of delay totally ignores the

fact that criminal defendants in capital cases generally do

all they can to stall their case and take as long as

possible to prevent final resolution in the state courts, as

did and does respondent herein. More importantly, to

permit a simultaneous challenge to the guilt conviction in

the federal courts while the penalty phase appeal is still

pending in the state courts is a significant affront to

comity traditionally afforded state court p ings.

Permitting this unwarranted intrusion by the Federal

Courts into the orderly state appellate procedures will

additionally create the likelihood of expensive piecemeal

litigation and undermines the doctrine of abstention in

deference to first obtaining finality of state court

proceedings as espoused in Judice v. Vail, 430 U.S. 327,

97 S.Ct. 1211, S.L.Ed 376 (1977); Huffman v. Pursue, Ltd.

420 US. 592, 93 S.Ct. 1200, 43 L.Ed.2d 482 (1974) and

Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 Ed.2d

669 (1971).

To add insult to injury, the purported finding of

extraordinary delay is particularly egregious in this case

since it was made by an appellate court which was acting

without benefit of a full and accurate record. Once the

full record is considered, there is simply no evidence to

support the putative finding of extraordinary delay by the

State.

In short, there is no factual, legal or public

policy basis supporting the decision of the Ninth Circuit.

ARGUMENT

PERMITTING A CAPITALLY CONVICTED

DEFENDANT TO CHALLENGE HIS

GUILT CONVICTION IN THE FEDERAL

CouRTS ON HABEAS CORPUS WHILE

HIS PENALTY PHASE RETRIAL Is STILL

PENDING ON APPEAL IN THE STATE

CourT Is AN AFFRONT TO THE

TRADITIONAL RULES OF COMITY AND

ABSTENTION, ESPECIALLY SINCE THE

FINDING OF PRESUMPTIVELY

PREJUDICIAL EXTRAORDINARY DELAY

IN THE STATE PROCEEDINGS Is

DEVOID OF ANY FACTUAL SUPPORT

In what appeared to be a routine decision, the

District Court dismissed respondent’s habeas corpus

petition without prejudice, declining to interfere with

ongoing state capital murder proceedings on abstention

grounds, citing to Younger v. Harris, 401 U.S. 37 (1971),

Huffman v. Pursue Ltd., 420 U.S. 592, 609 (1975) and

Judice v. Vail, 430 U.S. 327, 348 (1977). Appendix B at

3. The District Court also found failure to exhaust since

respondent's death sentence had not yet been imposed

or reviewed by the state courts’, citing to 28 U.S.C. §

2254 (b)-(c)” and Rose v. Lundy, 455 U.S. 509 (1982).

8. As the District Court noted, respondent filed his

pro se petition for writ of habeas corpus on March 4,

1992. Appendix B at 2. Respondent was not sentenced

to death, following his penalty retrial, until] March 13,

1992. Appendix B at 2; Appendix V at 13.

9. Section 2254(b)-(c) states:

Ce a ne

Appendix B at 3-4. The District Court took this action

sua sponte without requesting briefing or receiving any

More remarkably, the Ninth Circuit found that the

almost 15-year period since his conviction, with still more

time yet to be taken in the resolution of his automatic

appeal from his penalty phase retrial, was just <9 |.ng

and constituted extraordinary delay#% Witho.’ any

"(b) An application for a writ of habeas

corpus in behalf of a person in custody

pursuant to the judgment of a State court shall

not be granted unless it appears that the

applicant has exhausted the remedies available

in the courts of the State, or that there is either

an absence of available State corrective process

or the existence of circumstances rendering such

process ineffective to protect the rights of the

prisoner.

"(c) An applicant shall not be deemed to

have exhausted the remedies available in the

courts of the State, within the meaning of this

section, if he has the right under the law of the

State to raise, by any available procedure, the

question presented.”

10. The Ninth Circuit inflated the alleged delay by

looking to the time from the date of the original death

sentence (February 20, 1980) to calculate the 15-year

delay. In actuality the first opportunity which respondent

would have had to go to federal court to challenge his

real examination of the record in this case, two of the

circuit judges amazingly characterized the delay as

“extraordinary” and found that the delay rendered the

state corrective processes "ineffective" within the meaning

of section 2254(b), excusing exhaustion and rendering

abstention under Younger v. Haris inapplicable.

Appendix A at 5809-5814. The concurring circuit judge,

while agreeing that section 2254(b) was applicable, also

found Younger v. Harris to apply, but found the length of

the delay constituted an unusual circumstance exception

to the ordinary rules of comity and exhaustion.

Appendix A at 5815-5817. The Ninth Circuit opinion

further held that the delay was presumed to have been

prejudicial to the opportunity for a fair retrial of the

guilt phase. Appendix A at 5809-5810.

As noted in Argument Il, infra, the Ninth

Circuit’s finding that the guilt phase was final under

California law is wrong, as is the factual finding of

presumptively prejudicial extraordinary delay. These

findings were erroneous when considered as either

rendering the state corrective process ineffective under

section 2254(b) and rendering abstention under Younger

v. Harris inapplicable, or when used to establish an

unusual circumstance exception to Younger v. Harris.

In discussing Younger v. Harris, supra, 401 U.S.

37, and abstention, Judge Kleinfeld, in his concurring

opinion, stated that Younger abstention applied until the

guilt conviction would not have arisen until the California

Supreme Court issued a remittitur upon completion of

his first automatic appeal. The remittitur was issued in

February of 1986. Thus, any delay in respondent’s

opportunity to seek federal court review of his guilt

phase conviction is less than 10 years [1986 until 1995]

rather than more than 15 years [1980 until 1995].

SN a

judgment was final in the state court and that final

meant sentence was final. Finality of one issue was not

enough. Appendix A at 5815-5816.4

11. The miaijority’s disagreement with Judge

Kleinfeld’s discussion on abstention and citation of Brady

v. Maryland, 373 U.S. 83 (1963) that final judgment does

not always mean sentence (Appendix A at 5806

continuing fn. 2), is misplaced. Brady was convicted of

capital murder. After his conviction and sentence were

affirmed on appeal by the Maryland Court of Appeals he

learned that an extrajudicial statement of his separately

tried codefendant admitting to the actual killing had been

withheld from the defense at trial. On post conviction

relief, the Maryland Court of Appeals found this to be

prejudicial error and remanded the case for retrial on

the issue of penalty, but not guilt. Brady petitioned this

Court for certiorari. Therein, this Court stated,

Neither party suggests that the decision

below is not a "final judgment" within the

meaning of 25 U.S.C. § 1257 (3), and no attack

on the reviewability of the lower court’s

judgment could be successfully maintained. For

the general rule that "Final judgment in a

criminal case means sentence. The sentence is

the judgment" (Berman v. United States, 302

U.S. 211, 212) cannot be applied here. If in

fact the Fourteenth Amendment entitled

petitioner to a new trial on the issue of guilt as

well as punishment the ruling below has

seriously prejudiced him. It is the right to a

trial on the issue of guilt "that presents a

serious and unsettled question" (Cohen v.

Beneficial Loan Corp., 337 U.S. 541, 547) that

"is fundamental to the further conduct of the

As noted by Judge Kleinfeld,

In Younger, the Supreme Court held that

federal courts generally may not enjoin ongoing

state criminal proceedings, but leaves room for

possible exceptions to the general rule for "bad

faith, harassment, or other unusual circumstance

that would call for equitable relief." Id. at 54.

Appendix A at 5815.42’ In a somewhat similar vein,

case" (United States v. General Motors Corp., 323

U.S. 373, 377). This question is "independent

of, and unaffected by" (Radio Station WOW v.

Johnson, 326 U.S. 120, 126) what may transpire

in a trial at which petitioner can receive only a

life imprisonment or death sentence. It cannot

be mooted by such a proceeding. See Largent

v. Texas, 318 U.S. 418, 421-422. CF. Local No.

438 v. Curry, 471 U.S. 542, 549.

Id. at 85 fn. 1

It is patent that under the unique procedural

posture of that case, the general rule that final judgment

meant sentence had to give way to Brady’s due process

rights as to the posture of his new trial. Respondent’s

case does not call for a similar disregard for the general

rule that final judgment means sentence.

12. In Younger v. Harris, supra, 401 U.S. 37, this

Court actually stated at page 54,

Other unusual situations calling for federal

intervention might also arise, but there is no

point in our attempting now to specify what

they might be. It is sufficient for purposes of

the present case to hold, as we do, that the

possible unconstitutionality of a statute "on its

face" does not in itself justify an injunction

against good-faith attempts to enforce it, and

in Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71

L.Ed.2d 379 (1982) this Court noted

that comity was the basis of the exhaustion

doctrine: “it is a principle controlling all habeas

corpus petitions to the federal courts, that those

courts will interfere with the administration of

justice in the state courts only ‘in rare cases

where exceptional circumstances of peculiar

urgency are shown to exist.”

Id. at 515-516, quoting from Ex Parte Hawk, 321 USS.

114, 117 (1944).

According to the Ninth Circuit, in cases where

exceptional or unusual circumstances are shown to be

present, the doctrine of abstention under comity may be

excused and federal courts may intervene in pending

state proceedings prior to their state finality. As pointed

out in Argument II, infra, there is simply no accurate

record supporting a finding of unusual or exceptional

circumstances in this case. To the contrary, it is

regrettable but true that as most capital cases involving

a penalty retrial go, the instant case is more typical than

unusual. Admittedly, respondent’s capital appeal is still

that appellee Harris has failed to make any

showing of bad faith, harassment, or any other

unusual circumstance that would call for

equitable relief. Because our holding rests on

the absence of the factors necessary under

equitable principles to justify federal

intervention, we have no occasion to consider

whether 28 U.S.C. § 2283, which prohibits an

injunction against state court proceedings

"except as expressly authorized by Act of

Congress" would in and of itself be controlling

under the circumstances of this case.

pending in the State Supreme Court and his death

sentence is not yet final. This does not'mean, however,

he should be permitted to litigate a portion -- the guilt

phase only -- of that case at the same time in the federal

courts.

The Ninth Circuit has attempted to characterize

the holding in this case as "limited" and "narrow." There

is an implied suggestion that the holding in this case will

not have any effect beyond this one case. Nothing could

be yarther from the truth. The situation presented in

this case is neither unique to California nor unique

within the other states with death penalty statutes. For

a myriad of reasons, capital cases have become

unnecessarily protracted and complex, especially when

they reach the appellate courts. Allowing these cases to

become further fragmented and splintered, with both the

federal and state courts simultaneously reviewing

different aspects of case, is an absurd way of solving the

problem.2/

Any claim that there is precedent for this

bifurcation of proceedings in the state and federal courts

simultaneously by citing to Burris v. Farley, 51 F.3d 655

(7th Cir. 1995) (Appendix A at 5813-5814) is likewise

misplaced. While it is true that Burris did challenge the

guilt phase of his conviction in the federal courts while

the penalty phase was still on state appeal following a

new penalty trial, it is patent that this only occurred

because for some undetermined reason, the State of

Indiana did not object. In fact, at the hearing in the

13. The specter of both court systems issuing

discovery orders which inevitably will conflict with one

another, the prospect of duplicative funding requests, and

the issuance conflicting scheduling and briefing deadlines

is hardly the model of efficiency.

’ .

District Court on the habeas corpus petition “the

Attorney General [of Indiana] waived any arguments

based on the exhaustion of state remedies," and the

District Court accordingly declined to “consider the

ramifications of this issue." Burris v. Farley, 845

F.Supp.636 (N.D. Ind. 1994). A reading of the entire

opinion indicates that abstention under comity was never

raised or discussed. Jd. at 636-665. Thus, Burris v.

Farley, supra, 51 F.3d 655 can hardly be deemed

authority supporting a new and unique rule allowing

bifurcation of a capital case in federal and state courts

at the same time simply because the defendant has been

able to delay finality for fifteen years. Such a peculiar

precedent appears to reward -delay rather than

discouraging it.

This bifurcation of proceedings in both state

and federal courts lends itself to further mischief:

piecemeal litigation, e.g. Rose v. Lundy, supra, 455 U.S.

at 520-521; McCleskey v. Zant, 499 U.S. 467, 111 S.Ct.

1454, 113 L.Ed.2d 517 (1991). It is indeed ironic that

while Congress struggles with legislative efforts to

streamline federal habeas, the Ninth Circuit is busy

creating exceptions which will have the inevitable result

of making the process more cumbersome and expensive.

The established practice of using one federal habeas

corpus petition to raise all federal challenges to both

guilt and penalty remains far more preferable and

efficient.

Lastly, petitioner would note this Court’s

opinion of Vasquez v. Hillery, 474 U.S. 254, 106 S.Ct.617,

88 L.Ed.2d 598 (1986). In that case when it arose in the

District Court, the State argued that Hillery had waited

too long to challenge the racial make-up of the grand

jury that had indicted him, claiming he should have filed

his federal habeas corpus petition after his guilt

conviction was affirmed, the penalty being reversed and

affirmed the guilt phase of petitioner's

conviction in 1965, it reversed the death penalty

imposed and remanded to the trial court for

further proceedings. People v. Hillery, supra, at

713, 44 Cal. Rptr. 30, 401 P.2d 382. The appeal

from the second penalty trial was not

completed until 1967. People v. Hillery (1967)

65 Cal.2d 795, 56 Cal.Rptr. 280, 423 P.2d 208,

cert. denied, 389 U.S. 986, 88 S.Ct. 486, 19

L.Ed.2d 496 (1968). In 1969, by writ, petitioner

was successful in securing the reversal of the

second penalty trial because of Witherspoon

error. In re Hillery (1969) 71 Cal.2d 857, 79

Cal.Rptr. 733, 457 P.2d 565. At his third

penalty trial, petitioner once again received the

death penalty. In 1974, on automatic appeal to

the California Supreme Court, the Court

modified the penalty to life imprisonment.

People v. Hillery (1974) 10 Cal.3d 897, 112

Cal.Rptr. $24, 519 P.2d 572. This protracted

litiestion in eff luded federal

intervention. Had petitioner sought federal

habeas relief while the state court litigation was

continuing, considerations of comity and

federalism would almost certainly have required

dismissal. Both doctrines compel a respect for

state functions and counsel against interference

with ongoing state judicial proceedings. Judice

v. Vail (1977) 430 U.S. 327, 335, 97 S.Ct. 1211,

1217, 51 L.Ed.2d 376; Huffman v. Pursue, Lid.

(1974) 420 US. 592, 601, 95 S.Ct. 1200, 1206,

43 L.Ed.2d 482; Younger v. Harris (1971) 401

US. 37, 44, 91 S.Ct. 746, 750, 27 L.Ed.2d 669.

Moreover, the California Supreme Court’s

determination on the guilt phase is unlikely to

have induced a district court to hear petitioner’s

habeas since in this circuit, finality of one issue

in the state courts is not generally sufficient to

circumvent the requirements of comity and

federalism. Drury v. Cox (9th Cir. 1972) 457

F.2d 764, 765. Thus, it appears that at the

earliest petitioner could not have filed in

federal court until 1967 following the California

Supreme Court’s affirmance of the death

penalty imposed at the second penalty trial, and

perhaps not even until 1974 when the state

litigation was finally resolved.

Hillery v. Sumner, 496 F Supp. 632, 637 (E.D. Cal. 1980).

Emphasis added.

Having taken the position that review should

have been sought earlier and having lost their argument

in Hillery v. Sumner,-it seems unfair that one should

again lose when taking the opposite position, as was

done in the instant case. "But justice, though due to the

accused, is due the accuser also." Snyder v.

Massachusetts, 291 U.S. 97, 122, 54 S.Ct. 330, 78 L.Ed.

674 (1934).

Il.

THE THREE JUDGE PANEL

COURT'S DISMISSAL OF RESPONDENT'S

HABEAS CORPUS PETITION ON

GROUNDS OF ABSTENTION UNDER

COMITY AND FAILURE To EXHAUST

BECAUSE OF RESPONDENT'S PENDING

PENALTY APPEAL IN THE STATE

COURTS WHEN IT FOUND THE GUILT

PHASE HAD BEEN EXHAUSTED IN THE

STATE COURTS AND THAT A DELAY

OF FIFTEEN YEARS, WITHOUT MORE,

JUSTIFIED FEDERAL INTERVENTION

The finding by the Ninth Circuit that the guilt

phase was final in the state courts is wrong. As noted by

the Ninth Circuit panel (Appendix A at 5804, fn. 1),

while it is true that respondent’s guilt conviction was

affirmed on his original automatic appeal (People v.

Phillips, supra, 41 Cal.3d at 84) and that the California

Supreme Court does treat that as a final judgment for

direct appeal purposes (People v. Kemp, 10 Cal.3d 611,

614; 517 P.2d 826; 111 Cal.Rptr. 562 (1974); People v.

Jackson, 67 Cal.2d 96, 98; 429 P.2d 600; 60 Cal.Rptr. 248

(1967)), the court in Kemp also recognized that at the

appeal from a penalty retrial, the defendant could

challenge the guilt phase “under any applicable

retroactive constitutional decision of the United States

Supreme Court or of this court filed after affirmance of

this judgment on the issue of guilt." People v. Kemp,

supra, 10 Cal.3d at 613. Thus "final" does not mean the

guilt phase is totally immune from further direct

appellate attack, nor is it immune from collateral attack

in the California Supreme Court. In the instant case,

respondent's advisory counsel was appointed to represent

respondent on the automatic appeal of his penalty retrial

in the California Supreme Court and was informed he

could also challenge the guilt phase on state habeas

corpus, but this was limited to guilt phase issues that had

not been raised in prior pleadings. Appendix Q at 2-3.

Thus, the California Supreme Court recognized that

respondent, if he chooses, can still collaterally attack the

guilt conviction in that court. While respondent may

now allege that at present he has no intent to attack the

guilt phase in the California Supreme Court, it is a good

bet thac he would not now chisel this waiver in granite

to forever preclude him from either a collateral attack

on habeas corpus or a direct attack within the pending

appeal based on retroactivity which fortuitously presented

itself in futuro. Thus, the Ninth Circuit erred in finding

that under California law the guilt phase is final.

The Ninth Circuit’s finding of substantial delay

is also wrong, but has even more drastic consequences

for the federal court workload. In discussing substantial

delay, the court cited to Coe v. Thurman, 922 F.2d 582

(9th Cir. 1991). Appendix A at 5811, 5817. Therein, in

discussing state appellate delay as a section 2254(b)

exception to the requirement that an applicant exhaust

his available state remedies, the Coe court quoted from

Barker v. Wingo, 407 US. 514, 92 S.Ct. 2182, 33 L.Ed.2d

101 (1972): “We cannot definitely say how long is too

long in a system where justice is supposed to be swift but

deliberate.’ Jd. at 521, 92 S.Ct. at 2187," and noted the

applicability of the four factors delineated in Barker

regarding speedy trial. The four are: (1) length of

delay; (2) reason for delay; (3) defendant’s assertion of

his right; and (4) prejudice to the defendant. In

addition, the three sub-factors Barker utilized to

determine prejudice were altered for determining

prejudice in appellate delay to: "(1) oppressive

incarceration pending appeal; (2) anxiety and concern of

the convicted party awaiting the outcome of the appeal;

and (3) impairment of the convicted person’s grounds for

appeal or of the viability of his defense in case of

retrial." Coe v. Thurman, supra, 922 F.2d at 531-532.

In reaching its ruling in the instant case, the

Ninth Circuit panel looked to only length of delay and

presumed that respondent had been prejudiced in

preparing for a possible guilt phase retrial. In doing so

the Ninth Circuit ignored the other factors under Barker

v. and Coe v. Thurman, despite the following

language:

As Barker reminds us, we regard none of

the four factors . . . as either a necessary or

sufficient condition to the finding of a

deprivation of the right of a speedy trial.

Rather, they are related factors and must be

considered together with such other

circumstances as may be relevant. In sum,

these factors have no talismanic qualities: courts

must still engage in a difficult and sensitive

balancing process. Id. 407 U.S. at 533, 92 S.Ct.

at 2193.

Coe v. Thurman, supra, 922 F.2d at 532.

Because of the unique procedural posture of

this case (see fn. 1, supra) there was no real record

before either the District Court or the Ninth Circuit.

Nor did the Ninth Circuit ever attempt to secure a copy

of the proceedings before the state courts. In fact, when

given the opportunity to review these materials, the

Ninth Circuit refused to consider them. Petitioner

attempted to address the reasons for the delay in the

petition for rehearing (Appendix V), but the panel

denied petitioner’s motion to lodge the relevant

documents with that court (Appendix K, Y-1, Y-2, Y-3)

and denied the petition for rehearing. Appendix L.

Petitioner has filed a similar motion to lodge those

documents with this Court. See fn. 1, supra.

It would seem to be a fundamental precept of

justice that before a court makes a legal ruling which is

dependent on a factual record, the court must be willing

to assure itself that the facts upon which it is relying are

accurate. This would seem to be especially true with

respect to precedent setting decisions such as that

involved in the instant case.

The time between respondent’s arrest in Utah

in March 1978 (People v. Phillips, supra, 41 Cal.3d at 42,

75) and his initial California conviction and sentence in

February 1980 (Appendix V at 4, 16-17), cannot be

characterized as an unjustified delay since it involved

extradition in a capital case.

It would be a mischaracterization to call the

time between the filing of the state appellate briefs on

January and February 1981, and the California Supreme

Court’s opinion on December 31, 1985, as an unjustified

delay. The California Supreme Court took extra’ pains

with the capital case, even ordering supplemental briefing

in areas of concern after oral argument which supplied

the basis for the penalty reversal. Appendix V at 5-6,

16-17; People v. Phillips, supra, 41 Cal.3d at 65-75, 81-84.

The interval between the December 31, 1985,

reversal of the penalty verdict and the penalty retrial in

late 1991, (with a sentence of death being imposed on

March 13, 1992) (Appendix M at 3-19; Appendix V at 6-

14, 17), was the direct result of intentionally dilatory

conduct by respondent. He waived retrial dates,

requested postponements of his retrial date, filed

numerous motions, changed counsel more than once, and

filed numerous state habeas corpus petitions, all of which

contributed to the time it took to complete his penalty

retrial. Thus this 5-year period cannot be considered as

an improper or unduly prolonged delay, since it was

directly attributable to respondent’s own volitional actions

in delaying the retrial.

The period between respondent’s March 13,

1992, penalty retrial sentencing and the present date

during which his automatic appeal is pending before the

California Supreme Court is based in great part on

respondent's actions during the retrial. Acting as his own

lawyer, respondent did something unique. He tape

recorded his penalty retrial and then sought numerous

extensions of time from the California Supreme Court to

correct the trial transcript to conform the transcripts to

the audio tapes. This process became a horrendous and

complex task but a problem of respondent’s own making.

Once the California Attorney General’s Office had been

provided with a duplicate set of tapes by respondent,

state personnel had go through the tedious process of

checking on respondent’s lengthy list of corrections to the

penalty retrial transcript. Appendix V at 17-18. This

delay between penalty sentencing on March 13, 1992,

and the present can clearly be laid at respondent’s

doorstep.

It must also be pointed out that the three-year

delay between the federal habeas corpus petition on

March 4, 1992, and the ruling by the Ninth Circuit on

May 26, 1995, reversing the District Court’s dismissal of

the petition is most certainly not attributable to the state.

Thus, when one looks to the actual record

behind the 15-year period from when the Madera County

Jury first found respondent guilty of murder, the vast

majority of this time was eaten up by respondent in his

attempts to avoid a penalty retrial. The initial period

which was involved in his first capital appeal clearly

inured to respondent’s benefit, since it is conceivable

that, absent the delay for the court requested

supplemental briefing, respondent would not have had a

penalty reversal. Thus, the reasons for the delay clearly

legitimize the length of the time which the California

Supreme Court spent considering this case. It is

perverse, ironic and inaccurate for the Ninth Circuit to

conclude that this case involves unconscionable delay

caused by state inaction. —

Also, the presumption of prejudice to

respondent in any retrial as found by the Ninth Circuit

panel is clearly erroneous. As noted in the California

Supreme Court’s opinion, respondent testified at his

initial trial and claimed alibi, impliedly putting the blame

for the capital murder on. his “friend,” Richard Graybill.

People v. Phillips, supra, 41 Cal.3d at 42-43. Graybill also

had testified at that trial. Jd. at 52 fn. 5. At the 1991

penalty phase retrial the People put on basically the

same case as presented at the 1980 guilt trial. The

People established the murder of Bruce Bartulis and the

shooting, setting on fire and running over of Ronald

Rose by respondent and the “hit list" respondent had

mailed from the Utah jail giving specific directions how

to kill (1) surviving victim Rose, (2) respondent's

girlfriend, Sharon Colman, a witness to the murder, (3)

Richard Graybill, the "friend" whom he blamed for the

murder, and (4) respondent’s own mother who could

blow his alibi defense. Compare People v. Phillips, supra,

41 Cal.3d at 39-42, 62-63, 75-77, with N.L. -- Item 11 at

7-22. Graybill’s testimony from the prior trial was read

to the jury because Graybill had since become deceased.

N.L. -- Item 11 at 7 fn. 5. Respondent, who claims he

lied at his first trial (Appendix M at 3), put on a totally

different penalty defense. Respondent did not testify and

did not put on his alibi defense. He, instead attempted

to put on a defense of a mutual shoot-out between

respondent and Rose and Bartulis with Bartulis getting

killed. Compare People v. Phillips, supra, 41 Cal.3d at

42-43 with N.L. -- Item 11 at 22-32. This apparently is

the same defense he attempted to raise in the habeas

corpus petition filed in the District Court that is at issue.

Appendix M at 3, 12, 24, 33-37, 45. It thus would

appear that respondent has made good use of the delay

between his original conviction in 1980 and his retrial in

1991 to scrupulously review the record and present an

entirely different defense. There clearly was no

prejudice to him by that delay between trials, and,

likewise there should be no future prejudice to him if the

federal court should demand a further retrial, except that

he may be denied the "right" to manufacture a new

defense.

Thus, the Ninth Circuit panel’s ruling that the

15-year period which had elapsed since the guilt phase

verdict and the presumed prejudice to respondent in

dealing with any future guilt retrial is totally lacking in

any foundational support, and, in fact, the real evidence,

which was not even considered by the Ninth Circuit, is to

the contrary,. Thus, the finding of extraordinary delay,

either within the meaning of section 2254(b), rendering

the state corrective process ineffective, or within the

meaning of the unusual circumstances exception to

abstention under Younger v. Harris, is flat out wrong and

must be corrected by this Court’s reversal of the Ninth

Court opinion. The Ninth Circuit’s clear error in finding

that the state judicial proceedings necessary to hear and

consider respondent’s appeal from his penalty phase

retrial amounted to unusual circumstances allowing the

federal courts to review the guilt phase of respondent’s

capital trial must be reversed.

CONCLUSION

To permit a capital defendant to challenge the

guilt phase of his trial in the federal courts while the

appeal of his penalty retrial is still pending in the state

courts violates all the rules of abstention under comity.

For all the reasons stated herein, Petitioners

respectfully urge that this Court grant certiorari in this

matter and resolve the important issues of law presented

herein; or alternatively reverse and remand the judgment

of the Ninth Circuit to enable the issue of delay to be

first considered in the District Court with a full and

complete proper record before it.

Dated: October 12, 1995.

Respectfully submitted,