Opposition Brief — Calderon v. United States District Court for the Eastern District of California

| ORIGINAL = oR IciINAL

No. 96-1755 H |

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PEEP ee re re rr ee ee eee ---EF+44:-E p

IN THE SUPREME COURT OF THE UNITED STATES MAY 28 1997

CLER

October Term, 1996 . : ar

Arthur Calderon, Petitioner

v.

United States District Court,

Eastern District of California, Respondent

Blufford Hayes Jr., Real Party in Interest

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

David A. Senior*

McCBREEN & SENIOR

1801 Century Park East

26th Floor

Los Angeles, California 90067

Telephone: (310) 552-5300

Attorneys for Real Party in

Interest Blufford Hayes Jr.

* Counsel of Record

TABLE OF CONTENTS

PAGE

py SP es Pt 8 Sa es Serer ee eT cee ii-iv

eb yes BP! rere rear ee eS re ee a 2

REAL PARTY IN INTEREST’S BRIEF IN OPPOSITION............ 3

SaAsmeeeen Cl Tee Gs occ 6 bce cee be Oba h he hee dade es wee ee 3

1 WeGure GE COO GOs vc i cca kde cen ks Ceweeeeuben 3

a. The Course of ProceedingsS..........cc.eeeeee i

Bx Disposition in the Court Below.............. 6

I THE PETITION NEITHER RAISES AN

IMPORTANT QUESTION OF FEDERAL LAW

NOR IDENTIFIES A CONFLICT IN

ye) Me gy ere ee eae Tee ee Cre 8

II THE FACIAL INDETERMINACY OF THE STATE COURT

HABEAS PROCEDURAL RULES RENDERS THEM

INADEQUATE TO BAR FEDERAL REVIEW............ 11

A. California’s Timeliness Rules............... 12

as California’s Timeliness

Bul PAO BO Se 6 <n kc bs es 40 6 eens 16

- Timeiimeee Weer CAA oo cnc cc eseeeneses 19

a. The State’s Misinterpretation

a, SE ee eae ee Se ee 21

4 The Order is Inadequate

Cnet Pee Gee, ok cas ncwawess 23

B. California’s “Dixon” Waiver Rule............ 25

CORCTUISION. ccc cccccsnscsasewesscnceseswneseecocsestecse 27

TABLE OF AUTHORITIES

CASES PAGE

peta = Beets, 476 U.S. FE (1SG8) ss cscciveveccvecets 23

Breest v. Perrin, 655 F.2d 1 (lst Cir.),

a: eas Rh a i os wre tliewe ae bu 10

Cald vy. Uni is Di 5 )

i. tes Cae eee oe Cee Sore. SOR... os cas beer esbe = +

te: Sa ee

in 27e Ciezk, 655 ?.2¢ 729 (Cal. Gup. Ct. 1993)... .c2csees passim

Cochran v. Herring, 43 F.3d 1404 (llth Cir. 1995)......... 10

Cele SS. SO) U.8. Tae CADPR) 6 occ sce nvcdssncavce 9

Connally v. General Constr. Co., 269 U.S. 385 (1926)...... 8

County Court of Ulster County v. Allen,

a Sree ee Se os he ek a ec ib ak Cea bbw ebieaewn 8

in.re Dixon, 264 P.2d 513 (Cali. Gup. Ct. 1953)... cece 11, 14,

25

aes eee, Eee T.8. GG8 taGGe) osc ic 6c ae silts twessvda 3

en SS. ee a, Cie CEs pesca en dtakawen ed veea Ss, 15,

23-26

Grubbs _v. Delo, 948 F.2d 1459, 1463 (8th Cir. 1991),

GREE. BEGG, SOG U.B. GIG (ALGO) . oc cvcccccdsccvcccecusss 10

in re Harris, 855 P.2d 391, 396

Pes. es Ge Ee Bw 6 66 Os ak Oo OO SK ERA O ROW EOD 9, 26

ii

Batzig.2..=eak, 499 U.8. 25S (1969) on ccccccosscsocesevess 11

Harris v. Superior Court, 500 F.2d 1124 (9th Cir. 1974)

(en banc), cert. denied, 420 U.S. 973 (1975)............. 13

Sil w. Bie. 939 F.26 369 (Ste Cis. IPPR) icceweace deovtd> 10

In re Horowitz, 203 P.2d 513 (Cal. Sup. Ct. 1949)........ 21

Hunter v. Aispuro, 982 F.2d 344, 347

(9th Cir. 1992), cert. denied,

a0 BR GST Fee 6 a kos ed cee kes 06s vowed 20s skeen 13

donGen wv. De Geass, 343 GU... BSD CROSR) ccs ecesesbosecsus 8

Klein v. Neal, 45 F.3d 1395 (10th Cir. 1995).............-. 10

ip. se Baie, 132 F.26 10 Car. Bap. Ce. 2968} .cdcrvness 14

Morales v. Calderon, 85 F.3d 1387 (Sth Cir.)............. ‘Pa -

10, 16, 19

NAACP v. Alabam x re Pp .

Dae Wells See Me Cw n.b:0 Kb d BOWS Ob SOK eRe 24

Odle v. Calderon, 884 F. Supp. 1404, 1413

(N.D. Cal. 1995) (citing In re Harris,

ae &. =. ee a. Fae | Se CmnerRCEr en 26

People v. Pacini, 174 Cal. Rptr. 820

ce ep MS errr ree Te Te err Ter T Perr ey Terre 14

People v. Hayes, 802 P.2d 376

ORS « Ge. CEs BOOS) 2s ch eseh sd dvcdcdandacead exndeidibven 4

People v. Mayfield, 852 P.2d 331 (Cal. Sup. Ct. 1993),

cont... @etias, Sid U.B. 1253 (ISRO)... cccsreccccsscevssovesss 13

People v. Payton, 839 P.2d 1035 (Cal. Sup. Ct. 1992),

cast... @enies, Si0 U.6. 1060 (AOE) . oa vccewnewacdeesocdees 14

Reynolds v. Ellingsworth, 843 F.2d 712 (3d Cir.), cert.

Genie, 488 U.G. 960 (1968) ...ncccecccccessesccoceseocscus 10

iii

Rosa v. Peters, 36 F.3d 625 (7th Cir. 1994).............. 10

Siripongs v. Calderon, 35 F.3d 1308 (9th Cir. 1994),

cert. denied, U.S. oR ee Re CARRS oc ie ss 9, i2

Smith v. Dixon, 14 F.3d 956 (4th Cir.),

ir eee, Ee Wye DER SLOPE 6.0 x ones Sewer edeeswecnes 10

In re Stankewitz, 708 P.2d 1260 (Cal. Sup. Ct. 1986)..... i Ce

21

In xe Swain, 209 P.2d 793 (Cal. Sup. Ct. 1949).......... ins a6

In re Waltreus, 397 P.2d 1001 (Cal. Sup. Ct.)

(issue raised and rejected on appeal),

eee een Oe ass. DOS. CLOGS oka nck vc otaweassacderouns 14

Warner v. United States, 975 F.2d 1207 (6th Cir. 1992),

eore Bemsee. SOs TB. SBR CLOSA). o.cc veins se ce eaascacese 10

In re Wilson, 838 P.2d 1222 (Cal. Sup. Ct. 1992),

eee meee Geet Bi TORE {EGS SE «vnc ce CG actos dee weceses 14

Ww. . woe eae SER P.O B36 CSR: Cae. -2SOS? 6 ideas ees 10

STATUTES

a ek oe a are ee eee ee. 2 oe ae ee ee 2 2 oe eo 3

iv

Whether this Court should restructure the procedural

default doctrine so that a state court's arbitrary application of

certain discretionary procedural rules may be deemed adequate and

independent to bar federal habeas review.

REAL PARTY IN INTEREST'S BRIEF IN OPPOSITION

Real party in interest Blufford Hayes Jr. (hereinafter

"Hayes") respectfully requests that the Court deny the petition

for writ of certiorari. Petitioner (hereinafter “State”) seeks

review of the Court of Appeals’ denial of its petition for writ

of mandamus, which thereby affirmed the district court's denial

of the State’s motion to dismiss, on procedural grounds, 32

extra-record habeas corpus claims raised by Hayes.

The opinion of the Court of Appeals denying the

petition for writ of mandamus is reported at Calderon v. United

States Dist. Court E. Dist. Cal., 103 F.3d 72 (9th Cir. 1996).

The Findings and Recommendations of the magistrate judge, and the

district court's order adopting these findings, are not reported,

but are printed as Appendix C and D to the petition.

i. Nature of the Case.

This action involves a petition for writ of habeas

corpus pursuant to 28 U.S.C. § 2254 raising numerous federal

constitutional challenges to the conviction and sentence of death

3

received by Hayes in the Superior Court of the State of

California, County of San Joaquin, in 1982.

2. The Course of Proceedings.

Hayes has been sentenced to death following his

conviction for one count of first degree murder, with the special

circumstance of burglary.’ Upon affirmance of the conviction and

death sentence on direct appeal to the California Supreme Court

[People v. Hayes, 802 P.2d 376 (Cal. Sup. Ct. 1990)], Hayes filed

a petition for writ of habeas corpus consisting of 61 claims in

the United States District Court for the Eastern District of

California. Twenty-three of these claims previously were raised

in the California Supreme Court during Hayes’ automatic appeal or

during a first petition for writ of habeas corpus which was

decided prior to the direct appeal.

The district court dismissed the 38 unexhausted claims,

without prejudice, and ordered Hayes to present the claims to the

California Supreme Court. Six weeks later, Hayes filed these

claims, and five additional claims, in a second petition for writ

: A jury finding of robbery-murder special circumstance

was reversed by the California Supreme Court on direct appeal.

People v. Hayes, 802 P.2d 376 (Cal. Sup. Ct. 1990).

4

of habeas corpus in the California Supreme Court.

The California Supreme Court denied Hayes all relief,

issuing an order which stated, inter alia:

All claims are denied on the merits, except

claims 3, 6, and 10. In addition, all claims

are denied as untimely, except claims 1, 3,

4, 4, 426.5, 31, 32, 40, 41, 42, @nd 43. (See

In re Clark, (1994) (sic) 5 Cal.4th 750, 797;

In re Swain (1949) 34 Cal.2d 300, 304.)

Claims 6, 8, and 39 are denied on the ground

that they could have been, but were not,

raised on direct appeal. (In re Dixon (1953)

41 Cal.2d 756.)

Petition for Writ of Certiorari, Appendix B.?

Hayes then filed a first amended petition in the

district court, which included these 43 newly-exhausted claims.

The State moved to dismiss 32 of these claims on the grounds that

¥ Justice Mosk was "of the opinion the petition should be

denied only on the merits."

they were denied by the California Supreme Court on procedural

grounds, i.e., as untimely or on the grounds that they could have

been raised on direct appeal, thereby barring further federal

court review of the claims. On January 22, 1996, the magistrate

judge filed his findings and recommendations that the motion

should be denied. Petition for Writ of Certiorari, Appendix C.

The State filed objections to the findings and recommendations to

the district court judge. Notwithstanding these objections, on

April 10, 1996, the district court judge filed an order adopting

the magistrate judge’s findings and recommendations to deny the

motion to dismiss. Petition for Writ of Certiorari, Appendix D.

On September 6, 1996, the State filed a petition for

writ of mandamus in the Court of Appeals for the Ninth Circuit

seeking an order reversing the district court. The Court of

Appeals denied the petition. Calderon v. United States Dist.

Court EB. Digat. Cal., 103 F.3d 72 (Sth Cir. 1996).

3. Disposition in the Court Below.

On December 20, 1996, the Court of Appeals for the

Ninth Circuit denied the State’s petition for writ of mandamus on

the grounds that the order of the district court denying the

State’s motion to dismiss was not clearly erroneous as a matter

6

of law. The court reasoned that the district court’s order

holding that the California state rules regarding: (1) the timely

filing of habeas corpus petitions in cases arising from judgments

of death; and (2) the obligation to raise a claim on direct

appeal, were not adequate and independent to bar federal review

of constitutional claims.

With respect to the state timeliness policy, the Court

of Appeals noted the concession by the California Supreme Court

that "'no clear guidelines have emerged in our past cases'"

(Calderon v. United States Dist, Court E. Dist. Cal., 103 F.3d

72, 74 (9th Cir. 1996) (quoting In re Clark, 855 P.2d 729, 737

(Cal. Sup. Ct. 1993))), and added that the State’s arguments

previously have been rejected because California's rule on

timeliness was not “'clear, consistently applied, and well-

established'”, and therefore could not “serve as an adequate and

independent state ground sufficient to support a procedural

default." Id. at 74-75(quoting Morales v. Calderon, 85 F.3d

1387, 1393 (Sth Cir.), caxt. denied, —. U.S. .., 117 S. Ct. 500

(1996).

With respect to the rule obligating the petitioner to

raise a claim on direct appeal, the Court of Appeals noted the

“lack of consensus on the adequacy of the [state rule] [] in

7

foreclosing federal review of state court decisions,” and that it

could not “say that the district court clearly erred in

determining” whether it had been consistently applied. Id. at

72%

On March 19, 1997, the State filed a petition for writ

of certiorari, which was placed on this Court's docket on May 2,

1997, seeking review of the decision of the Court of Appeals.

I

THE PETITION NEITHER RAISES AN

IMPORTANT QUESTION OF FEDERAL LAW NOR

IDENTIFIES A CONFLICT IN THE COURTS BELOW

This petition for writ of certiorari does not involve

an important question of federal law which must be resolved by

this Court. The State fails to articulate any reason why the

Court should depart from the well established precedent that a

state procedural rule that is unclear and inconsistently applied

lacks due process as an adequate and independent state ground for

upholding a judgment. Connally v. General Constr. Co., 269 U.S.

385, 391 (1926); Jordan v. De George, 341 U.S. 223, 231-32

(1951); County Court of Ulster County v. Allen, 442 U.S. 140, 150

(1979); Ford v. Georgia, 498 U.S. 411, 422-24 (1991); Calderon v.

United States Dist. Court E. Dist. Cal., 96 F.3d 1126 (9th Cir.

1996), cert. denied, __ U.S. __, 137 L. Ed. 2d 714 (1997);

Morales v. Calderon, 85 F.3d 1387, 1393 (9th Cir.), cert. denied,

—_._:; U.S. __, 117 S. Ct. 500 (1996); Siripongs v. Calderon, 35 F.3d

1308 (9th Cir. 1994), cert, denied, U.S. , 235-8. Ce. 21275

(1995).

California's habeas corpus timeliness rule and its rule

requiring the presentation of claims during direct appeal

(hereinafter “Dixon” or “Dixon rule”) cannot be equated with the

clear and objective rules that have been upheld as adequate and

independent. Compare In re Clark, 855 P.2d 729, 759 n.30 (Cal.

Sup. Ct. 1993) (state rules regarding timeliness "cannot fairly be

analogized to a statute of limitations") with Coleman v.

Thompson, 501 U.S. 722 (1991) (strict time period for filing

claims); and In re Harris, 855 P.2d 391, 396 (Cal. Sup. Ct. 1993)

(acknowledging that previously discretionary “Dixon” rule only

now is firmly established) with Dugger v. Adams, 489 U.S. 401,

410 n.6 (1989) (claims not raised on direct appeal cannot be

raised on post-conviction review). In this regard, no issue set

forth in the petitior remains unanswered by the Court, and no

confusion has occurred with respect to the lower courts'

9

understanding and application of this adequacy test.

Moreover, there are no conflicts in the courts below

with respect to this precedent. Remarkably absent from the

State's analysis is that, consistent with the Court of Appeals'

decision in this case, every federal circuit has stated ina

habeas corpus proceeding that only those state rules that are

consistently enforced are adequate to support a finding of

procedural default. See Breest v. Perrin, 655 F.2d 1, 3 (lst

Cir.), cert, denied, 454 U.S. 1059 (1981); Wedra v. LeFevre, 988

F.2d 334, 340 (2d Cir. 1993); Reynolds v. Ellingsworth, 843 F.2d

712, 719 (3d Cir.), cert, denied, 488 U.S. 960 (1988); Smith v.

Dixon, 14 F.3d 956, 972 (4th Cir.), cert. denied, 513 U.S. 841

(1994); Hill v. Black, 932 F.2d 369, 373 (5th Cir. 1991); Warner

v. United States, 975 F.2d 1207, 1213 (6th Cir. 1992), cert.

denied, 507 U.S. 932 (1993); Rosa v. Peters, 36 F.3d 625, 633

(7th Cir. 1994); Grubbs v. Delo, 948 F.2d 1459, 1463 (8th Cir.

1991), cert. denied, 506 U.S. 835 (1992); Morales v. Calderon, 85

F.3d 1387, 1390 (9th Cir.), cert, denied, __. U.S. __, 117 S.

Ct. 500 (1996); Klein v. Neal, 45 F.3d 1395, 1398 (10th Cir.

1995); Cochran v. Herring, 43 F.3d 1404, 1408 (11th Cir. 1995).

No circuit ever has rejected consistency of application as a test

of adequacy. For these reasons, the petition should be denied.

10

It

THE FACIAL INDETERMINACY OF THE STATE COURT

HABEAS PROCEDURAL RULES RENDERS THEM

INADEQUATE TO BAR FEDERAL REVIEW

The State's petition is premised upon numerous

misconceptions of the law and its disdain for established legal

precedent. The State contends that the state court's reference

to In re Clark, 855 P.2d 729 (Cal. Sup. Ct. 1993) and In re

Dixon, 264 P.2d 513 (Cal. Sup. Ct. 1953) when denying Hayes'

habeas claims is "adequate" to support the state-court judgment

within the meaning of Harris v. Reed, 489 U.S. 255 (1989), and

attempts to shroud the concomitant forfeiture of federal

constitutional rights in the garb of federalism. In so doing,

the State fails to recognize that comity is not a proscription

against federal court review. Due regard for the principles of

federalism requires an inquiry into the adequacy and independence

of state grounds that threaten to defeat federal jurisdiction.

Without contesting the state's power to regulate state procedure,

an asserted procedural default that involves only the subjective

application of a wholly discretionary and inchoate standard,

cannot defeat federal court review.

11

A. California’s Timeliness Rules.

The State’s petition is premised upon the misconception

that California's "pre-Clark"* habeas timeliness rules provided

Hayes with adequate notice of a then existing timeliness rule; to

wit, that substantial delay in presenting claims must be

explained. The State cites the Standards* and In re Stankewitz,

708 P.2d 1260 (Cal. Sup. Ct. 1986) in this regard, and concludes

that this timeliness rule was "the" rule relied upon by the

California Supreme Court when, citing Clark and In re Swain, 209

P.2d 793 (Cal. Sup. Ct. 1949), it found 32 separate claims to be

"untimely".°>

There is no evidence that the California Supreme Court

: In re Clark, 855 P.2d 729 (Cal. Sup. Ct. 1993).

: Standards for Preparation and Filing of Habeas Corpus

Petitioners Relating to Capital Cases and for Compensation of

Counsel in Connection With Those Petitions, adopted June 6, 1989.

. In Allen v. Calderon, Case No. CIV-S-88-1123 DFL-JFM-P

(E.D. Cal. 1994) (unpublished memorandum), the State conceded

before the same district court judge as in this case that, under

Siripongs v. Calderon, 35 F.3d 1308 (9th Cir. 1994), cert.

denied, U.S. , 115 &. Ct. 1178 (1995), a state court

procedural default based upon Stankewitz cannot be used to bar

federal review. ("Respondent concedes that the Ninth Circuit has

found that .. . the Stankewitz and Horowitz rules [] are not

independent and adequate state grounds barring federal courts

from reviewing the claims on the merits." Id. at 2.) Speaking

now from the other side of its mouth, the State takes the exact

opposite position.

12

relied on Clark, the Standards, or Stankewitz for this

proposition. Neither the Standards nor Stankewitz were even

cited by the court, and while Clark was cited, and states that:

"{fo]ur decisions have consistently required that a petitioner

explain and justify any substantial delay in presenting a claim"

(Clark, 5 Cal. 4th at 783 [855 P.2d at 750]), the California

Supreme Court did not rely upon this proposition, instead citing

page 797 [855 P.2d at 760] of its opinion.® In fact, the order

provides very little guidance or insight as to the reasons for

the purported default at all.’

. Perhaps the court simply selected a pin point cite from

the opinion arbitrarily, or even carelessly, as evidenced in its

order here where the court misstates the date of the opinion in

its citation as “1994", not 1993.

The lack of explanation by the California Supreme Court

principally is the result of its "postcard" denial approach to

habeas. See Hunter v. Aispuro, 982 F.2d 344, 347 (9th Cir.

1992), cert. denied, 510 U.S. 887 (1993); Harris v. Superior

Court, 500 F.2d 1124, 1125 (9th Cir. 1974) (en banc), cert.

denied, 420 U.S. 973 (1975). As a result of this practice, the

vast majority of habeas corpus proceedings decided by the

California Supreme Court are denied by minute order.

In fiscal year 1991-1992, for example, the California

Supreme Court disposed of 1,067 habeas corpus petitions,

including 28 relating to death penalty cases. 1994 Annual Report

of Judicial Council of California at 77, 81. During

that same period, the court published only three opinions in

habeas cases challenging convictions, all of which were in death

penalty cases, and two of which constituted portions of the

direct appeal opinions. See People v. Mayfield, 852 P.2d 331

(Cal. Sup. Ct. 1993), cert, denied, 512 U.S. 1253 (1994); People

13

While Clark reiterates the timeliness rule referred to

by the State, it also sets forth new timeliness standards (see

appendix to decision), and attempts to explain and provide

uniform guidelines for future timely presentation of habeas

claims "because no clear guidelines have emerged in our past

cases ... ." Clark, 855 P.2d at 737. Notwithstanding, the

State clairvoyantly concludes that the sole basis for the state

court's reference to Clark and its untimeliness finding was

Hayes’ failure to explain any delay in presenting his claims.*®

v. Payton, 839 P.2d 1035 (Cal. Sup. Ct. 1992), cert. denied, 510

U.S. 1040 (1994); In re Wilson, 838 P.2d 1222 (Cai. Sup. Ct.

1992), cert. denied, 507 U.S. 1006 (1993).

The minute order denials frequently contain a shorthand

reference to various procedural policies, in the form of case

citations such as In re Waltreus, 397 P.2d 1001, 1005 (Cal. Sup.

Ct.) (issue raised and rejected on appeal), cert. denied, 382

U.S. 853 (1965); In re Dixon, 264 P.2d 513, 515 (Cal. Sup. Ct.

1953) (issue should have been raised on appeal); In re Miller,

112 P.2d 10 (Cal. Sup. Ct. 1941) (issue raised and rejected in

prior habeas); In re Swain, 209 P.2d 793, 796 (Cal. Sup. Ct.

1949) (failure to justify delay in bringing petition); In re

Stankewitz, 708 P.2d 1260 (Cal. Sup. Ct. 1986) (same), but almost

never explain the application of the procedural policy to the

procedural facts of the case.

This is attributable to the fact that the court has the

power. to issue a written opinion only after issuing an order to

show cause, which turns the matter into a "cause" within the

meaning of Cal. Const. art. VI, § 24. See People v. Pacini, 174

Cal. Rptr. 820, 824 (Cal. Ct. App. 1981).

Hayes in fact provided the following explanation, inter

alia, regarding the timing of raising the claims:

14

Premised upon the foregoing, the State erroneously

concludes that Hayes had adequate notice of Clark sufficient to

satisfy the notice requirements of Ford v. Georgia, 498 U.S. 411

(1991), i.e., that a state procedural bar must be in place at the

time the default occurred to preclude federal review of federal

constitutional issues. The purported default did not occur,

however, when Clark was announced in July 1993, or when the

petition was filed on April 23, 1994 in the California Supreme

Court, but at a time prior to Clark, when Hayes purportedly

All of the claims set forth in the instant

petition were timely raised when this petition was

filed with this Court because: (1) the investigation of

facts supporting the prima facie elements of the claims

commenced within a reasonable amount of time after June

6, 1989, i.e., the date when petitioner became

obligated under the standards to conduct an

investigation of habeas corpus issues; (2) the

discovery of facts supporting the prima facie elements

of the claims occurred within a reasonable amount of

time prior to the time that the petition was filed; and

(3) any passage of time after the discovery of the

facts and prior to the filing of the petition was to

allow petitioner to complete his investigation on other

known issues to enable him to prepare and file the most

complete petition possible containing as many claims as

became known to petitioner, in lieu of filing piecemeal

claims in multiple petitions as the information

supporting each claim was gathered.

Petition for Writ of Habeas Corpus at 226.

15

failed to raise the claims in a timely manner. Accordingly,

neither Clark, nor its predecessor cases, nor Standards,

constitutes a firmly established, regularly followed, state

procedural bar in place at the time the default occurred to

preclude federal review of federal constitutional issues.

Le California’s Timeliness Rule Prior to Clark.

Ignoring all precedent, the State incorrectly argues

that, prior to Clark, California had established, regularly

followed timeliness rules. This is legally and factually wrong.

Morales v. Calderon, 85 F.3d 1387, 1393 (9th Cir.) (“the

California Supreme Court's timeliness rule, .. . before its

further elucidation in Clark, did not afford an adequate and

independent state ground barring federal review... .”), cert.

denied, _. U.S. __, 117 S. Ct. 500 (1996); Calderon v. United

States Dist. Court E. Dist, Cal., 96 F.3d 1126, 1130 (9th Cir.

1996), cert. denied, im Des» BO? be. BA. 2G: ta8- Caer

While failing to even acknowledge these cases,’ the

’ The State cites Morales only once in its petition,

conceding that the Ninth Circuit, like all other circuit courts,

requires the petitioner to prove that the state procedural rule

is not adequate and independent. While completely ignoring the

holding of the case, the State’s reference to Morales negates its

unsupported position that there is a split of authority with

16

State then incorrectly claims that Hayes failed to present

"empirical" evidence to support the analysis of the Court of

Appeals and the district court. Hayes in fact submitted such

evidence, which was not rebutted by the State, to the district

court in response to the .State’s objections to the magistrate

judge’s findings and recommendations.’® The State’s failure to

respect to that particular issue among the circuit courts.

- In this regard, Hayes set forth numerous examples of

the state court excusing extraordinary delay while penalizing

relative diligence. For instance, Robert Alton Harris' third and

penultimate state-court petition for writ of habeas corpus, filed

over 11 years post-affirmance, nearly three years after the

Standards were in effect, and only five days before his

execution, was denied "on the merits," an express rejection of

untimeliness. In re (Robert) Harris, No. S026177 (Cal. Apr. 17,

1992) (minute order). There are numerous other striking examples.

See, e.g., In re Ghent, No. S031473 (Cal. Feb. 23, 1994) (minute

order) (successive habeas petition, filed almost four years after

release of Standards and 5% years after affirmance); In re

Heishman, No. S033487 (Cal. Aug. 11, 1993) (minute order) (fourth

habeas petition, filed four years after release of Standards and

over five years after affirmance); In re Silva, No. S033635 (Cal.

July 28, 1993) (minute order) (second habeas petition, filed over

four years after release of Standards and over five years after

affirmance).

Not merely anecdotal, these examples provide a

perspective into a broader problem. Comparing Hayes’ case to all

other cases involving similar post-affirmance delays (filed after

the Standards took effect) yields startling results. At the time

Hayes filed his petition in state court, the California Supreme

Court had denied 36 post-affirmance petitions involving post-

affirmance delays of three years or more (filed after the

Standards took effect). More than 50 percent (19) of those cases

were denied without any imposition of the timeliness policies.

(Case names, numbers, petitions, and the length of passage of

17

time were all set forth by Hayes). In an additional 28 percent

(10) of the cases, at least: some of the claims were denied on

grounds other than untime. ress. (Case names, numbers, petitions,

dispositions, and the length or passage of time were all set

forth by Hayes). Only 19 percent (7) of the cases were denied

entirely on timeliness grounds.

The statistical analysis should not, and did not, stop

there, however, because of the theoretical possibility that the

group of all post-affirmance petitions with at least 3 years of

post-affirmance delay (filed after the Standards took effect) was

too heterogenous a sample for a meaningful single-group analysis.

Such a wide grouping could under certain circumstances fail to

account for trends within the group. For instance, some measure

of evenhandedness could be seen in the existence of a steady

increase over time in the percentage of cases held untimely. The

aberrant case examples provided should have dispelled any notion

of an adequate correlation between the amount of post-affirmance

delay and the likelihood of the imposition of a timeliness bar.

A more rigorous approach to this question was made, however, by

examining the mean and median affirmance-to-filing time span for

each subcategory of the group (cases deemed timely, deemed

untimely, and deemed timely in part).

The mean affirmance-to-filing time span in the cases

deemed timely was 4 years, 6 months; the mean affirmance-to-

filing time span in the cases deemed untimely in whole or in part

was the same: 4 years, 6 months. The median affirmance-to-filing

time span in the cases deemed timely was 3 years, 8 months; the

median affirmance-to-filing time span in the cases deemed timely

in part and untimely in part was 4 years, 0 months; and the

median affirmance-to-filing time span in the cases deemed

untimely in their entirety was 3 years, 7 months. Thus, the

median affirmance-to-filing time span for the petitions denied as

untimely in toto was less than the median time span for the cases

considered timely in whole or in part. Thus, it was clear that

as to these parameters of delay, both the intra-group and the

inter-group application of the timeliness rules lacked

evenhandedness.

The foregoing empirical observation did not merely

reveal minor aberrations from a general trend which could be

equated with occasional acts of judicial grace. The empirical

data showed quite the contrary; if the vague and seemingly

18

address this evidence is consistent with its previous disposition

of such evidence. See Morales v. Calderon, 85 F.3d 1387, 1391

(9th Cir.) (“The State does not dispute these figures .. .”),

cert. denied, _. U.S. .., 117 8. Ct. 500 (1996). In this regard,

the State’s position is wholly unsupported by the record here,

its prior conduct, and Ninth Circuit case law.

2. Timeliness Under Clark.

In July 1993, the California Supreme Court conceded the

vague and arbitrary application of the its timeliness rule. In

re Clark, 855 P.2d 729 (Cal. Sup. Ct. 1993). The Clark court's

review of the "law governing collateral attacks on judgments of

conviction by petition for writ of habeas corpus" led the court

to a simple, but important, conclusion: "no clear guidelines have

emerged in our past cases." Id, at 737(emphasis added).

The state court announced substantial revisions to the

Standards in July 1993, reprinted as an appendix to the Clark

opinion. Id, at 771." Inasmuch as Hayes’ defaulted claims were

flexible policy was indeed a rule, it is honored primarily in the

breach.

fic In addition, the opinion also addressed some of the

Standards' most quixotic provisions. For instance, the court

gave an example of what might constitute "good cause

19

\

investigated, drafted, and filed in the district court on June

22, 1993, i.e., before the Clark decision was rendered, any

purported timeliness default had to occur prior to Clark, and

Clark (and the amended Standards) ordinarily would be irrelevant

to Hayes’ case.

This, however, is not the case. Clark acknowledges,

consistent with the Court of Appeals’ decision here, that prior

law contained no clear timeliness requirements. Moreover, the

state court's citation to Clark in denying Hayes’ claims as

untimely, establishes that Hayes’ state-court claims were denied

on procedural grounds not in existence at the time the purported

default occurred.

//

//

showing particular circumstances sufficient to justify

substantial delay," id, at 771: petitioner having good reason to

believe that other meritorious claims exist and delaying the

presentation of known claims in order to avoid piecemeal

litigation. The court also provided an important example of what

was not good cause: "the assertion of counsel that he or she did

not represent the petitioner earlier." Id. at 738 (footnote

omitted). The opinion attempted to define the conditions under

which a petition failing to demonstrate the absence of

substantial delay and the existence of good cause for substantial

delay will nonetheless be considered. Id.

20

‘

a?

3. The State’s Misinterpretation of ‘Claxk.

In In re Clark, 855 P.2d 729 (Cal. Sup. Ct. 1993), the

California Supreme Court acknowledged that with respect to

timeliness "no clear guidelines have emerged in our past cases."

Id, at 737. The State contends that this statement is irrelevant

because it appears in a section of the opinion entitled

"Repetitious and piecemeal claims," not in the section entitled

"delay."

Initially, it should be noted that the "no clear

guidelines" statement appears in a section of the Clark opinion

entitled "LIMITATIONS ON HABEAS CORPUS RELIEF" and applies to all

state court policies regarding habeas corpus. Moreover, the

invalidity of the State’s distinction is readily apparent.

Although Clark involved potential violations of two state-court

habeas corpus policies - the policy against delayed claims and

the policy against piecemeal claims, see In re Stankewitz, 708

P.2d 1260 (Cal. Sup. Ct. 1986); In re Horowitz, 203 P.2d 513,

521-22 (Cal. Sup. Ct. 1949); cf. Rules Governing Section 2254

Proceedings in the U.S. District Courts, Rules 9(a) & (b) - delay

is inherent in the piecemeal presentation of claims for habeas

corpus relief. Indeed, Clark explicitly recognizes that

questions of delay and piecemeal presentation are inextricably

21

bound. See In re Clark, 855 P.2d at 738. Thus, Clark's

observations concerning the uncertain legal status of repetitious

and piecemeal claims applies to delayed claims a fortiori. Put

bluntly, the State’s assertion that the California Supreme Court

possesses greater latitude to "forgive" the potential violation

of two procedural policies than of one, is absurd. There is no

sensible reason why inconsistent enforcement of successor

petition rules should be prohibited, while inconsistent

enforcement of delay rules should be allowed.

Moreover, Clark's assertion, on which the State places

great emphasis, that "'[o]Jur decisions have consistently required

that a petitioner explain and justify any substantial delay in

presenting a claim,'" (quoting In re Clark, 855 P.2d at 750),

simply begs the question; the decisions never have explained how

much delay is substantial or what circumstances constituted

adequate justification.

Perhaps understanding that neither the Standards nor

case law assisted Hayes in understanding his specific timeliness

obligations, the State leans heavily on an aspect of the

timeliness rule that was clear: some explanation should have been

given. The failure to explain, according to the State, was the

"clear" reason why the petition was denied. Hayes, however, did

22

provide such an explanation. It is therefore impossible for the

California Supreme Court to have found the petition untimely on

this basis.

4. The Order is Inadequate Under Ford v. Georgia.

Notwithstanding a high degree of ambiguity in the state

court's order denying Hayes’ application for habeas corpus

relief, the court's abstract meaning is relatively plain -

someone acting on Hayes’ behalf should have done something

sooner. In doing so, the court cited In re Clark, 5 Cal. 4th

750, 797 [855 P.2d 729, 760], a decision rendered on July 29,

1993.

The Court has held that a procedural rule invoked by

the state does not "even remotely" satisfy the requirement of

adequacy and independence unless it was not only "regularly

followed" but also "firmly established" by the time at which it

is to be applied. Ford v. Georgia, 498 U.S. 411, 424 (1991). In

Ford, the state procedural rule was inadequate to foreclose

federal court review of a claim of error under Batson v.

Kentucky, 476 U.S. 79 (1986), because the rule was not announced

until "after petitioner in this case filed his motion on the

prosecution's use of peremptory challenges and long after

23

petitioner's trial was over." Ford, 498 U.S. at 424. "In any

given case, however, the sufficiency of such a rule to limit all

review of a constitutional claim itself depends upon the timely

exercise of the local power to set procedure." Id. at 423.

""Novelty in procedural requirements cannot be permitted to

thwart review in this Court applied for by those who, in

justified reliance upon prior decisions, seek vindication in

state courts of their federal constitutional rights.'" Id. at

423 (quoting NAACP v. Alabama ex rel. Patterson, 357 U.S. 449,

457-58 (1958)).

As in Ford, the California Supreme Court's retroactive

application of the timeliness rule announced in Clark raises

questions of foreseeability and fairness. In this case, the

state court applied Clark retroactively because, at the time

Hayes should have raised the claims under Clark, i.e., 90 days

within the filing of the reply brief on appeal, Clark was not the

law. Hayes’ reply brief was filed June 3, 1986. He filed his

first state habeas petition that same year. When Hayes filed his

first habeas petition, he did so at a time when state law allowed

consideration of subsequent petitions for various reasons or no

reason at all.

Thus, because the denial of Hayes’ claims as "untimely"

24

involves the retroactive application of a new rule, and Clark was

not "firmly established" at the time Hayes should have raised

these claims under that decision, the order cannot stand as an

adequate and independent state ground under Ford v. Georgia, 498

U.S. 411 (1991) to bar federal review of Hayes’ claims.

B. California’s “Dixon” Waiver Rule.

The State contends that the Court of Appeals’ order

presents a further issue of “national importance” in that it does

not preclude Hayes from pursuing three claims which were denied

by the California Supreme Court as a result of his failure to

raise the claims on appeal - the “Dixon” rule violation.

Although purportedly a matter of national importance, the State

did not even challenge the magistrate judge's findings and

recommendations with respect to this issue to the district court

judge. Nevertheless, the issue now is raised here.

Citing Dixon in denying these three claims, the state

court relied upon a rule that also has not been regularly or

consistently applied. Like its pronouncement in Clark with

respect to timeliness, "(t]he California Supreme Court recently

- In_ re Dixon, 264 P.2d 513 (Cal. Sup. Ct. 1953).

25

held that it would construe and apply the Dixon rule more

stringently and consistently in the future, virtually admitting

that past precedent had been to the contrary." Odle v. Calderon,

884 F. Supp. 1404, 1413 (N.D. Cal. 1995) (citing In re Harris, 855

P.2d 391 (Cal. Sup. Ct. 1993)). "The court's plan to apply Dixon

more strictly as of 1993 cannot pose an effective procedural bar

to issues raised in [Hayes’] habeas petition (decided [June 1,

1995]) that were not raised on direct appeal (decided in

[1990]))." Id. (citing Ford, 498 U.S. at 424-25).

Thus, because the denial of these three claims involves

the retroactive application of a new rule; to wit, the

pronouncement in In re Harris, 855 P.2d 391 (1993) of the future

regular application of Dixon, Dixon was not "firmly established"

at the time Hayes should have raised these claims, and the order

cannot stand as an adequate and independent state ground under

Ford v. Georgia, 498 U.S. 411 (1991) to bar federal review of

these claims.

Fs

ff

iF

Mee

CONCLUSION

For the foregoing reasons, real party in interest

Blufford Hayes Jr. respectfully requests that this Petition for

Writ of Certiorari be denied.

Dated: May 30, 1997 Respectfully submitted,

27

David A. Senior*

McCBREEN & SENIOR

1801 Century Park East

26th Floor

Los Angeles, California 90067

Telephone: (310) 552-5300

Attorneys for Real Party In

Interest Blufford Hayes Jr.

* Counsel of Record

PROOF OF SERVICE

STATE OF CALIFORNIA, COUNTY OF LOS ANGELES

I am employed in the County of Los Angeles, State of California. I am over the age

of eighteen (18) and not a party to this action; my business address is 1900 Avenue of the

Stars, Suite 650, Los Angeles, California 90067.

On May 30, 1997, I served the foregoing document described as REAL PARTY IN

INTEREST’S BRIEF IN OPPOSITION on the interested parties in this action by placing [|

] the original [X] a true copy thereof enclosed in a sealed envelope addressed as follows:

William G. Prahl, Esq.

Deputy Attorney General

Office of the Attorney General

1300 I Street, Ste. 125

P.O. Box 944255

Sacramento, California 94244-2550

[X]} (By Mail): I deposited such envelope in the mail at Los Angeles, California. The

envelope was mailed with postage thereon fully prepaid.

1] (By Mail): As follows: I am "readily familiar" with the firm's practice of collection

and processing correspondence for mailing. Under that practice it would be deposited with

U.S. postal service on that same day with postage thereon fully prepaid at Los Angeles,

California in the ordinary course of business. I am aware that on motion of the party

served, service is presumed invalid if postal cancellation date or postage meter date is more

than one day after deposit for mailing in affidavit.

1] (By Personal Service) I caused such envelope to be delivered by hand to the offices

of the addressee above.

{] (State): I declare under penalty of perjury under the laws of the State of California

that the above is true and correct.

[X] (Federal): I declare that I am employed in the office of a member of the bar of this

court at whose direction the service was made.

Executed on May 30, 1997, at Los Angeles, California.

Con cee ate

CYNTHIA KELLEY