Opposition Brief — Sublett v. Swoopes
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Supzerne Cotrt, U.S.
FILED
APR 8 2000
No. 99-1470
CLERK
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1999
SAM SUBLETT; JANET NAPOLITANO, Attorney General,
Petitioners,
-VS.-
SAMUEL W. SWOOPES,
Respondent.
BRIEF IN OPPOSITION
TO
PETITION FOR WRIT OF CERTIORARI
FREDRIC F. KAY
Federal Public Defender
District of Arizona
Javier Chon-Lopez
Assistant Federal Public Defender
Counsel of Record
Brian I. Rademacher
Office of the Federal Public Defender
97 E. Congress, Suite 130
Tucson, Arizona 85701-1716
Attorneys for Respondent
QUESTION PRESENTED FOR REVIEW
Does O'Sullivan v. Boerckel, 526 U.S. 838, 119 S.Ct. 1728 (1999) require Arizona
defendants to petition the Arizona Supreme Court for discretionary review to exhaust
state remedies for federal habeas purposes when the Supreme Court of Arizona has
expressly stated (1) it does not consider discretionary review petitions as an ordinary
part of appellate review procedure under Arizona law, and (2) once a defendant has
exercised his right to direct appeal, further review in the Arizona Supreme Court
should not be sought as a matter of course?
TABLE OF CONTENTS
Page
QUESTION PRESENTED ......... 0. . cece ccc cece eee eee teen eee n ee eennes j
oe OR a Zee ye: i err Terr rrr errr rer Try errr rere rr rer ere ii
rp, Fi lye. oo oy) > re rer errr rrr rrr rrr eT rer rer rrr rr iV
BRIEF IN OPPOSITION TO PETITION FOR WRIT OF CERTIORARI ............. ]
Po ee ok 8 8. rr rr rer reer er eer er ere reer 2
ye ett. J. -¢! By Le Seer ror rrr rrr rer er yr Teer ere ere cere 3
REASONS FOR GRANTING THE WRIT .. 0... ccc cc ccc cccccccccccrccccscssscnes 5
moa EN gs PS eo i rere ee re rr re rrr reco. foes 5
A. THE ARIZONA SUPREME CourT HAS EXPRESSLY AND REPEATEDLY STATED
THAT ARIZONA’S DISCRETIONARY REVIEW PROCEDURE IS OUTSIDE OF THE
ORDINARY APPELLATE REVIEW PROCESS AND HAS DIRECTED THAT SUCH
REVIEW TO THE ARIZONA SUPREME COURT SHOULD NOT BE SOUGHT AS A
A ol Fg packed see dbaab ak canbe ches eens sn kwne &
1. Arizona and Illinois have different appellate review procedures ............. 9
2. The Arizona Supreme Court has expressly held defendants in Arizona need .
not seek review before it to properly exhaust state remedies for federal hapeas
rrr rer rr errr rrr rrr rrr rrr rr rr re ere 12
3. Swoopes is correctly decided and comity mandates Arizona should be
allowed to administer its discretionary appellate review system free from federal
PERCE PEC OP EPEC CT CTC COUT CPOE ree CELL ee 19
3) nr rere rer rrr rere rrr ee cere ry re tee 24
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APPENDIX A
State of Arizona’s Respondents- Appellees’ Supplemental Brief on Remand From the
United States Supreme Court, Swoopes v. Sublett, Ninth Circuit Court of Appeals
No. 94-16033, dated 7/8/99, pp.1-8
APPENDIX B
State v. Stephens, Arizona Court of Appeals No. 1 CA-CR 97-0458, Orders and
Pleadings
B.1- Order, dated Aug.2, 1999, pp.1-3
B.2 - Motion for Publication, dated Aug.4, 1999
B.3 - Order, dated Feb.14, 2000 (denying motion for publication)
B.4 - Motion for Reconsideration, pp.1-3, dated July 9, 1999
APPENDIX C
State of Arizona’s Respondents-Appellees’ Answering Brief, Moreno _v.
Gonzalez/Binford v. Rhode, Arizona Supreme Court No. CV-97-0268-CQ, pp.20-
22, dated 11/4/97
APPENDIX D
State of Arizona's Kes
v. Rhode, Ninth Circuit Court of Appeals No. 96-15189, pp.1-7, dated 11/27/98
APPENDIX E
Defendant Binford’s Supplemental Reply Brief of Petitioner/Appellant, Binford v.
Rhode, Ninth Circuit Court of Appeals No. 96-15189, pp.1-9,22-23, dated 12/28/98
ill
TABLE OF AUTHORITIES
Page
CASES
Barry v. Arizona Dep’t of Economic Security,
| POPPE ETT CTE RETO CCET eT eT eee eee 16
Binford v. Rhode, -
116 F.3d 396 (9" Cir. 1997),
aff'd in part, vacated in part sub nom.,
Ameen v. Rhode, 176 F.3d 481 (9" Cir. 1999)(Table) ................. 6, 10, 14, 15
Bishop v. Wood,
ee ae eae eg aa ead CAE SAE EERE ER 18
Coley v. Gonzales
see Pe og ek a eee RS ee RA a Ae Re CHAS 13
Francis v. Arizona Dep’t of Transportation. MVD,
ee ee On, I 6 nas Sc da eo Gd Eos hea N eke eae 16
Gatlin v. M.K. Madding,
ge 3 gg E.R a en a nae PD 5,18
Harmon v. Ryan
re os ak ag dg we ob OR 11, 13, 17
Jennison v. Goldsmith
er lo ha aoa en ek kb ORS AA OE A 6, 13,17
McMillan v. Monroe County, Alabama,,
ee ee ee ED so kw ak a xo bd od we ee ee Sek ee 5,18
Moreno v. Gonzales,
ee ee hk we a bd oda hae Re eed ee debs baudeewenn 10, 14, 15, 18, 22
O’Sullivan v. Boerckel,
~ SIR Be, eke py 7h). ) 4,5, 7, 8, 9, 11, 13, 17, 18, 19, 21
People v. Quigley,
ee ts oe gi ead seo eae AOE a AEA 9
iv
Page
People v. Williams,
pop oe fF Rs PP POePeETPTReTT Tere Teor ee eee Te eee 9,11
Slayton v. Shumway,
ee Cre Per eT TEU eTTTeUCNT TUTTE ELT ee eer ee 17
South Carolina v. Catawba Indian Tribe, Inc.,
a a kk a ee a ke Oe eee eee 18
State ex rel. Napolitano v. Brown,
ee ee es a a ees nk oa Se BK See ees Phd eee RAK eS 17
State ex rel. Arizona Dep’t of Revenue v. Havasue Dunes Timeshare Ass’n,
pe ge PPC RET Ver TT TET TTS TTT Te rere Tee Tee 4, 15
State v. Poli,
got ogg | eee ree eT rere Te eT Terre rere Tr rere 16
State v. Sandon,
Fee EE a dao ahaa RS RRs Ka eOR ER 54, Ez, 33, $4, 15, 17, 19, 22
State v. Shattuck
ee Se es BE 6 ok ge cicc wae bees dweew nd cena weuns 11, 12, 13, 14, 15, 17
State v. Smith,
pe ee Fe | Peer reece rey eT re Tre Tere Terr OTe rer Tes 16
Swoopes v. Sublett,
te Beg Sr 1, 8, 13, 17, 18, 19, 20, 21, 23
Thomas v. Goldsmith,
re Rr ee a a ewan ea wae ie Rae 13
United States ex rel. Burks v. Washington,
1995 WL 642822 *5 (D.Ill. 1995),
aff'd, Burks v. Nelson, 103 F.3d 133 (7" Cir. 1996)(Table) ................ 9,10, 11
Younger v. Harris,
I a eo een Cake ye cu el ee mea waa aie’ Mla tate oe 23
Page
STATUTES
Arizona Revised Statutes § 12-109(A) ........ 5. cece cece ete eee n ete eee ettenees 17
Arizona Revised Statutes § 12-120.21(A)(1) 0.2... cece eee eee tte ete tte ees 10
Arizona Revised Statutes § 12-120.24 ..... 0... cece cece ee eee tenet een e teenies 10
Arizona Revised Statutes § 13-4031 .......... sate ensneeccnsneceaasssesasssaassens 10
United States Code § 28-2254 ...... 2c cece ccc cece ener cess sec ernssncecccssssaaces 21
RULES
Arizona Rules of Appellate Procedure, Rule 28 ......... 00025 e eee teen reer eeeeees 2, 16
Arizona Rules of Criminal Procedure, Rule 31.19 ........---- esse eee ee eeees 10, 12, 20, 23
Arizona Rules of Criminal Procedure, Rule 31.19,
Comment to 1983 amendment .............-5:- eee eee e etter eees 2. 12, 13, 2, 22
Arizona Rules of Criminal Procedure, Rule 32.1(f) ........-.-0-e este ee eee eee eeces 10, 14
Illinois Supreme Court Rules, Rule 315... 26... 20. e eee eee eee erent ert e eens: 9
United States Supreme Court, Ruie iG 2.22... eee eee eee eee tee eee eeee 7, 4&
CONSTITUTIONS
Arizona Constitution, Article VI, §5.......... 2... cece eee ee eee teen eee erences aa7
Arizona Constitution, Article eo en eer re oer eer ere TTC rete reer errr irre
OTHER
JAMES S. LIEBMAN & RANDY HERTZ,
Federal Habeas Corpus Practice and Procedure c ge | | : nee 22, 23
Vi
No. 99-1470
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1999
SAM SUBLETT; JANET NAPOLITANO, Attorney General,
Petitioners,
-vs.-
SAMUEL W. SWOOPES,
Respondent.
BRIEF IN OPPOSITION
TO
PETITION FOR WRIT OF CERTIORARI
Respondent, Samuel W. Swoopes, through counsel, respectfully requests that this Court
deny the petition for writ of certiorari and refuse to issue a writ of certiorari to review the judgment
and opinion of the Ninth Circuit Court of Appeals entered in this proceeding on November 2, 1999,
in Swoopes v. Sublett, 196 F.3d 1008 (9" Cir. 1999).
PROVISIONS INVOLVED
The Arizona Constitution, Article VI, § 5 provides, in pertinent part:
Section 5. The Supreme Court shall have:
* * %* *
5. Power to make rules relative to all procedural matters in any court.
Rule 31.19 of the Arizona Rules of Criminal Procedure, Comment to 1983 amendment, provides,
in pertinent part:
The 1983 amendments to Rule 31.9 contemplate that review will not be
sought as a matter of course (emphasis added). Review procedure is intended for
those cases in which there is a tenable claim involving substantial issued of law or
procedure or in which serious injustice is claimed to have occurred.
Rule 28, Arizona Rules of Appellate Procedure, provides in pertinent part:
(a) Opinion; Memorandum Decision; Order; Publication.
(1) An opinion is written disposition of a matter which is intended for publication
under subdivision (4) below.
(2) A memorandum decision is a written disposition of a matter not intended for
publication.
(3) An order is any disposition of a matter before the court other than by opinion or
memorandum decisions.
(4) Publication is the distribution of opinions for reporting by publishing companies
in compliance with the provisions of A.R.S. § 12-107, § 12-108 and § 12-120.07.
* * * *
(c) Disposition as Precedent. Memorandum decisions shall not be regarded as
precedent nor cited in any court except for (1) the purpose of establishing the defense
of res judicata, collateral estoppel, or the law of the case or (2) informing the
appellate court of other memorandum decisions so that the court can decide whether
to publish an opinion, grant a motion for reconsideration, or grant a petition for
review. Any party citing a memorandum decision must attach a copy of it to the
motion or petition in which such decision is cited.
STATEMENT OF THE CASE
Mr. Swoopes was convicted of burglary, armed robbery, kidnaping and sexual assault based
mostly on the identification testimony of the three victims of the crimes. On the day of the crimes,
none of the victims gave a good description of their assailants and none of the victims aensioned
the assailant had any facial scars. The victims, who are Caucasian, did describe their assailant(s) as
being African-American, which Mr. Swoopes is. One of the victims told police in an interview
hours after the robbery, "J hate to say it, but they all look the same to me for the most part and when
they’re sticking guns in your face, recollection just wasn’t there." Furthermore, about one month
after the robbery, police showed all three victims a photographic lineup containing Mr. Swoopes’
picture. All three of the victims failed to identify Mr. Swoopes as the gunman.
Not until sixteen months after the crimes was Mr. Swoopes first identified as being one of
the assailants. This occurred when he was in court awaiting trial on an unrelated burglary. At that
time, two of the victims had come to these court proceedings after reading in a newspaper article
about this unrelated burglary that had occurred on the same night and in the same neighborhood as
the robbery of the victims in this case. The victims were told by police beforehand that Mr.
Swooupes was a suspect in their case. Upon seeing Mr. Swoopes scuicd at the defense table, the twu
victims formed the opinion he was the assailant in their case. Mr. Swoopes was the only African-
American man in the court room.
The third victim was not in court when Mr. Swoopes was first identified by the other two
victims during court proceedings against Mr. Swoopes in the unrelated case. However, this third
victim (a female) was married to one of the two victims who came to the opinion Mr. Swoopes was
the assailant only after having seen him on trial in court and having been told he was a suspect. At
a police line-up conducted subsequently, one month after her husband identified Mr. Swoopes
(which was now some seventeen months after the crime), she too decided Mr. Swoopes was the
assailant. In making her identification, this victim relied on a facial scar to idenufy Mr. Swoopes,
even though none of the victims had ever previously mentioned the existence of a facial scar.
Mr. Swoopes had counsel for his trial, his direct appeal, and his petition for post-conviction
relief in the trial court. Mr. Swoopes’ post-conviction relief counsel petitioned the Arizona Court
of Appeals for review of the trial court’s decision, but refused to file a petition for review by the
Supreme Court of Arizona for discretionary review.
Mr. Swoopes proceeded pro se in federal district court. After the district court denied relief,
Mr. Swoopes file a pro se opening brief with the Ninth Circuit Court of Appeals. After the State of
Arizona filed its answering brief, the Ninth Circuit Court of Appeals ordered counsel be appointed
for Mr. Swoopes and set a new briefing schedule. The Federal Public Defender’s Office, through
undersigned counsel, represented Mr. Swoopes in the Ninth Circuit, then before this Court on a
petition for writ of certiorari when the Ninth Circuit affirmed Mr. Swoopes’ conviction, and again
before the Ninth Circuit when this Court remanded for consideration of its decision in O’ Sullivan
v. Bverckei, 526 U.S. 838, 115 S.Ct. 1728 (4999).
REASONS WHY THE PETITION SHOULD BE DENIED
SUMMARY OF THE ARGUMENT
This Court should deny the petition for writ of certiorari because the Petitioners are merely
asking this Court to micro-manage the implementation of the Court’s decision in O’Sullivan v.
Boerckel, 526 U.S. 838, 199 S. Ct. 1728, 1733 (1999). However, the underlying opinion of the
Ninth Circuit in this case correctly states the rule this Court announced in O’Sullivan v. Boerckel
and then correctly follows that rule by analyzing whether, under Arizona law, a petition for review
to the state supreme court is an available part of Arizona’s ordinary appellate review procedure.
A review of other recent cases from the Ninth Circuit shows that court knows and applies this
Court’s rule. See e.g. Gatlin v. M.K. Madding, 189 F.3d 882, 887-88 (9" Cir. 1999). In the Gatlin
case, the Ninth Circuit concluded that California law required presentation of a discretionary review
petition to the California Supreme Court because it was part of "California’s ‘established, normal
[two-tiered] appellate review procedure ...." Id. at 888 (quoting O’ Sullivan v. Boerckel, 526 U.S.
at-, 119S.Ct. at 1732-33). In Mr. Swoopes’ case on the other hand, the Ninth Circuit found that
Arizona law did not require presentation of a discretionary review petition to the Arizona’s Supreme
Coun. The Ninth Cireust’o ruling in Mr. Swoopes’ case is based upe. its familiarity with aud
analysis of fifteen years of Arizona case Jaw in numerous cases before the Ninth Circuit.
Wwe
As the State of Arizona itself recognizes, this Court "*generally accord[s] great deference to
on
the interpretation and application of state law by the courts of appeals." State of Arizona’s
Respondents-Appellees’ Supplemental Brief on Remand From the United States Supreme Court, p.8
(quoting McMillan v. Monroe County, Alabama, - U.S. -, 117 S. Ct. 1734, 1737 (1997)(further
quotation omitted)(attached in Appendix A). Particularly in this case, the interpretation of Arizona
law by the Ninth Circuit Court of Appeals should be followed, because that court has a long history
of dealing with the very point of law at issue in this case. The Ninth Circuit has delved into this
issue and rendered opinions on this point of law for almost a decade, beginning with Jennison v.
Goldsmith, 940 F.2d 1308 (9" Cir. 1991), and continuing through Binford v. Rhode, 116 F.3d 396
(9" Cir. 1997), aff'd in part, vacated in part sub nom., Ameen v. Rhode, 176 F.3d 481 (9" Cir.
1999)(Table).
In turn, the Ninth Circuit’s decision is based upon fifteen years of Arizona law that
unequivocally establishes the validity of the Ninth Circuit’s conclusion. Based upon the Arizona
Supreme Court’s comments underlying the rule and its case law between 1983 and 1998, there is no
doubt Arizona considers discretionary petitions for review to the state supreme court as not being
an ordinary part of Arizona’s appellate review process. The Arizona Supreme Court has specifically
advised counsel and defendants not to bring such reviews to the supreme court as a matter of course,
but to do so only under the extraordinary circumstances set forth in its rules - where there is a
substantial issue of law concerning matters of importance to the State of Arizona. The Arizona
Supreme Court has be» n aware of the Ninth Circuit’s interpretation of Arizona’s rule on this issue
since ihe $991 decision in Jennison, but in aii these years the Arizona Supreic Cour hes neve:
repudiated that interpretation and has never taken action to change its rule.
Petitioners have not been able to cite any Arizona precedent to the contrary of the Ninth
Circuit’s interpretation, nor could Petitioners, because there is none. The one case Petitioners have
presented to this Court concerns an unpublished order, by a single judge, which Petitioners’ counsel
knows full well to have no precedential value. Petition for Writ of Certiorari, p.5 & Appendix D
(citing and providing State v. Stephens, Arizona Court of Appeals No. 1 CA-CV 97-0458-PR,
Order, dated August 2, 1999). Indeed, Petitioners’ counsel has concealed from this Court that he
was counsel of record in that case, that he requested the Arizona Court of Appeals to publish that
order, that the court of appeals denied that request for publication, and that Arizona law (Rule 28(c),
Ariz.R.Civ.App.) thus provides the order has no precedential value. (Order, dated Aug.2, 1999, p.3
(showing Eric J. Olsson as counsel); Motion for Publication, dated Aug.4, 1999, by Eric J. Olsson);
Order, dated Feb. 14, 2000 (denying motion for publication)(attached in Appendices B.], B2, B.3.).
Citing authority that has no precedential value has been labeled by the Arizona courts as being “of
questionable propriety." State ex rel. Arizona *Lof Revenue v.
Ass'n, 958 P.2d 447, 452 n.1 (Ariz.App. 1998)(court says party’s “use” in its legal analysis of “an
unpublished decision without precedential value" is “of questionable propriety").
In short, the underlying Ninth Circuit decision in this case appropriately follows the analysis
and rule set forth by this Court in O’Sullivan v. Boerckel. In doing so, the Ninth Circuit concluded
that presentation of discretionary petitions for review to the Arizona Supreme Court is not part of
the ordinary appellate review process in Arizona and, thus, is not necessary in order for Arizona
defendants to exhaust state remedies for purposes of federal habeas corpus petitions. This Court
shuuld not engage in micro-manage ment of every coun OF apprals decision cuncemiug cach of the
fifty states’ appellate review processes where, as here, the court of appeals correctly states and
follows the rule and then arrives at a particular conclusion based upon unequivocal state law. The
Court should deny the petition for writ of certiorari because Petitioners have presented no grounds
warranting review. See Rule 10, Rules of the United States Supreme Court ("A petition for writ of
certiorari is rarely granted when the asserted error consists of erroneous factual findings or the
misapplication of a properly stated rule.")
ARGUMENT
A. THE ARIZONA SUPREME COURT HAS EXPRESSLY AND REPEATEDLY STATED
THAT ARIZONA’S DISCRETIONARY REVIEW PROCEDURE IS OUTSIDE OF THE
ORDINARY APPELLATE REVIEW PROCESS AND HAS DIRECTED THAT SUCH
REVIEW TO THE ARIZONA SUPREME COURT SHOULD NOT BE SOUGHT AS A
MATTER OF COURSE.
In O'Sullivan v. Boerckel, 526 U.S. 838, 199 S. Ct. 1728 (1999), this Court "announce[d]"
a rule “requiring state prisoners to file petitions for discretionary review [in their state Supreme
Court} when that review is part of the ordinary appellate review procedure in the State." Id. at 1733.
O’Sullivan requires a state prisoner to “give the state courts one full opportunity to resolve any
constitutiona! issues by invoking one complete round of the State’s established appellate review
process.” Id. at 1732.
In Swoopes v. Sublett, 196 F. 3d 1008 (9" Cir. 1999), the Ninth Circuit followed the rule
this Court announced in O'Sullivan, noting "the Supreme Court held that, in order to satisfy the
exhaustion requirement for federal habeas relief, state prisoners must file for discretionary review
in a state supreme court when that review is part of ordinary appellate review.” Id. at 1009.
Examining fifteen years of Arizona case law, the Ninth Circuit concluded that post-conviction
petition for review tothe Arizona Supreme Court is a icanedy wiich js “unavailable” withinthe ---
meaning of O’Sullivan. As the Ninth Circuit found, Arizona has declared that a “complete round"
of its ordinary appellate review process does not include discretionary review before the Arizona
Supreme Court. Id. at 1010. This reasoning and holding of the Ninth Circuit’s Swoopes decision
has been misconstrued by Petitioners in their petition for writ of certiorari. The Ninth Circuit
decision is correct.
A Ni . ,
1. Arizona and Illinois have different appellate review procedures.
Petitioners allege the Ninth Circuit is wrong because of their view that no meaningful
distinctions exist between the two-tiered appellate procedures of I]linois (the appellate procedures
involved in O’Sullivan) and of Arizona. Petition for Writ of Certiorari at 6. A cursory review of
both appellate procedures might lead one to such conclusion. But closer analysis of the discretionary
rules of procedure and interpretive case law reveals two crucial distinctions between the rules and
case law of Illinois and Arizona. A review of the rules and case law establish that, in I]linois,
discretionary leave to appeal to the Illinois Supreme Court is part of a defendant’s right to appeal,
and so is an ordinary appellate procedure. In Arizona, however, a petition for review in the Arizona
Supreme Court is separate from (not part of) a defendant’s right to appeal and, thus, is outside of
the ordinary appellate review procedure.
First, Rule 315 of the I’linois Supreme Court Rules is titled "Leave to Appeal From the
Appellate Court to the Supreme Court." The Rule states in pertinent part, ". . . a petition for leave
to appeal to the Supreme Court from the Appellate Court may be filed by any party, including the
State, in any case not appealable from the Appellate Court as a matter of right." Illinois considers
necessary one at that. See e.g. People v. Quigley, 697 N.E.2d 735, 741 (Ill. 1998)(calling review
before the Illinois Supreme Court on such a petition for leave an "appeal" and "consider[ing] the
scope of review on appeal"); People v. Williams, 282 N.E.2d 503, 505 (Ill.App. 1972)(a defendant
waives his right to bring an issue in post-conviction proceedings if he fails to raise that issue in the
trial court, on direct appeal, or in a petition for leave to appeal to I]linois Supreme Court); United
States ex rel. Burks v. Washington, 1995 WL 642822 *5 (D.IIll. 1995), aff'd, Burks v. Nelson, 103
F.3d 133(7" Cir. 1996)(Table)(noting defendant was required under Illinois law to petition for leave
to appeal to the Ilinois Supreme Court). To Respondent’s knowledge, Illinois has never held that
a petition for discretionary review is not an appeal or that it is unnecessary for preservation of issues
for further review.
Rule 31.19 of the Arizona Rules of Criminal procedure is titled "Petition for Review." This
is in direct contrast to IIlinois’s title of "Leave to Appeal From the Appellate Court to the Supreme
Court." As the different names of these titles indicate, there is a significant, substantive distinction
between the rules of Arizona and those of Illinois. In Arizona, a petition for review to the Arizona
Supreme Court is not a part of an Arizona defendant’s right to direct appeal to the Court of Appeals
under the Arizona Constitution and Arizona statutory law. ARIZ. CONST., Art. 2, § 24; A.R.S. §§ 12-
120.21 (A)(1);12-120.24; 13-4031. See also Rule 31, Ariz.R.Crim.P. The right to direct appeal to
the Arizona Court of Appeals is the only ordinary appellate review procedure that Arizona
defendants have available. The Arizona Supreme Court has expressly indicated petitions for review
are discretionary and not an appeal within the meaning of the right to appeal under Rule 31. Moreno
v. Gonzales, 926 P.2d 205, 207 (Ariz. 1998). The Arizona Supreme Court has also directed that
[u}nce a defendant has cxercised his right to direct appeal, furthers eview inthis Couli should “not
be sought as a matter of course." 1d. at 208 (emphasis added). The Arizona Supreme Court further
noted "we would not have encouraged discretionary filings, by including a petition for review within
Rule 32.1(f)." Id.'
' The Arizona Supreme Court, answering a question certified by the Ninth Circuit in Binford
v. Rhode, 116 F.3d at 400, held that a petition for review to the Arizona Court of Appeals from
denial of a post conviction petition in the trial court is not an "appeal" within the meaning of Rule
32.1(f), Ariz.R.Crim.P. Rule 32.1(f) states post conviction relief is available where failure to appeal
from the judgment, sentence, or both within the prescribed time was without fault of defendant.
10
Second, the case Jaw concerning these procedures is similarly contrasting: In Arizona, the
state supreme court has consistently and clearly maintained for fifteen years, from the inception of
the 1983 amendment to the rule and continuing through a recent 1998 opinion, that an Arizona
defendant exhausts his state remedies by appealing his case to the Arizona court of appeals and that
he need not, and should not, seek review in the state supreme court because that is not part of the
ordinary appellate review procedure. See Argument A.2, infra. In sharp contrast, however, there
7 is "no such Illinois Supreme Court decision" that indicates an Illinois defendant need not seek review
via a petition for leave to appeal to the state supreme court. United States ex rel. Burks v.
Washington, 1995 WL 642822 *5. In fact, the Illinois federal district court in Washington
specifically compared the “clear and unambiguous” statements of the Arizona Supreme Court in
Shattuck and Sandon, as discussed by the Ninth Circuit in United State v. Harmon, to the opposite
situation in Illinois, and found no similar decision or decisions. Id, at *4-*5. Moreover, as noted
above, other Illinois decisions indicate an Illinois defendant commits procedural default for state
purposes if he fails to seek such review from the state supreme court. See e.g. People v. Williams,
282 N.E.2d at 505.
In suamary, Ilinois-considers*distre‘ionary Feview to its appenate courts as pat of a
defendant’s right to appeal. Arizona, on the other hand, considers discretionary review to its
appellate courts, not an appeal. This distinction, for federal habeas exhaustion purposes, makes
discretionary review available as part of the ordinary appellate review process in Illinois but
unavailable as part of the ordinary appellate review process in Arizona, within the context of
O’Sullivan.
1]
2. The Arizona Supreme Court has expressly held defendants in Arizona need
not seek review before it to properly exhaust state remedies for federal habeas
purposes.
Petitioner alleges the Ninth Circuit and this Court have misread State v. Sandon, 777 P.2d
220 (1989). The Ninth Circuit, however, did not base its decision about Arizona Jaw only on the
Sandon case, but rather upon the comments and cases of the Arizona Supreme Court over a fifteen
year period, from 1983 to 1998. Petitioners ignore this substantial history in Arizona, as well as the
fact that the Arizona Supreme Court has been fully aware of the Ninth Circuit interpretation of its
law but has never repudiated that interpretation or taken steps to change the rule as interpreted.
Moreover, Petitioners are wrong about the plain import of Sandon.
In Sandon, the Arizona Supreme Court expressly held a defendant exhausts state remedies
once the Court of Appeals decides the issues presented to it, even though the defendant never
subsequently presents those issues to the Arizona Supreme Court via a discretionary petition for
review. It is Petitioners who misread Sandon by believing its holding concerns only successive
petitions for discretionary review. Petition for Writ of Certiorari at 7-8. Petitioners err by ignoring
the fact Sandon relied upon and adopted the blanket holding of State v. Shattuck, 684 P.2d 154
(Ariz. 1984), a cuse thai dealt with a first petition fo: discretionary icvicw fullowing a Zireet appeai
to the state court of appeals.
In Shattuck, the Arizona Supreme Court issued an express and broad holding that, except in
cases carrying a life sentence or the death penalty, a decision by the court of appeals exhausts a
defendant’s right to appeal in Arizona. Id. at 157. The Arizona Supreme Court based its broad
holding in part on the commentary to Rule 31.19 of the Arizona Rules of Criminal Procedure, which
was added when the rule was amended in 1983. That commentary contemplated that discretionary
12
review to the state supreme court "will not be sought as a matter of course." Id. (emphasis added).
As the Arizona Supreme Court later stated in Sandon:
While Shattuck involved a discussion of the role of counsel in cases appealed
according to Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L.Ed. 2d 493
(1967), the considerations are the same when discretionary review is sought in this
Court pursuant to Rule 31.19. “Once the defendant has been given the appeal to
which he has a right, state remedies have been exhausted." Shattuck, 140 Ariz. at
585, 684 P. 2d at 157. Not only is this Court not "required to accept petitions for
review in Anders type of cases," id., we are not required to accept them in any case.
Id. at 584, 684 P. 2d at 156.
Sandon, 777. P.2d at 221 (emphasis added).
Contrary to Petitioners’ reading, Sandon does not conclude that state remedies are exhausted
because a successive petition for review is involved. The words "procedural default" do not appear
anywhere in the opinion. This indicates the Arizona Supreme Court did not limit its holding to
successive petitions for review, as Petitioners claim. Indeed, had the state supreme court intended
its statement only to apply to successive petitions as Petitioner alleges, the Court would have clearly
said so. Petitioner cites no case which supports its reading of Sandon. All cases in the Ninth Circuit,
and this Court in O’Sullivan, read Sandon as the Arizona Supreme Court’s express statement that
Arizona defendants are not required to (and should not) file discretionary petitions for review in the
Arizona Supreme Court to complete the Arizona appellate review process and to exhaust state
remedies for federal habeas purposes.”
? This Court cited Sandon as an example of a state court which expressly stated it does not
wish to have an opportunity to review constitutional claims before those claims are presented to a
federal habeas court. O’Sullivan, 119 S. Ct. at 1733-34. Every Ninth Circuit case interpreting
Sandon and Shattuck agrees with this reading. Swoopes v. Sublett, 196 F. 3d 1008 (9" Cir. 1999)
(Sandon holds that once a defendant has been given the appeal to which he has a right, state remedies
have been exhausted); Coley v. Gonzales, 55 F. 3d 1385, 1388 (9" Cir. 1995)(same); Thomas vy.
Goldsmith, 979 F.2d 746 (9" Cir. 1992)(same); Harmon v. Ryan, 959 F. 2d 1457, 1459 (9 Cir.
1992)(same); Jennison v. Goldsmith, 940 F. 2d 1308, 1309-10 (9" Cir. 1991)(same).
13
Pena
Petitioners also ignore the Arizona Supreme Court’s recent decision in Moreno v. Gonzales,
926 P. 2d 205 (Ariz. 1998). That decision decided questions the Ninth Circuit had certified to the
state supreme court in two cases, Binford v. Rhode, 116 F.3d at 39, and Moreno v. Gonzalez, 116
F.3d 409, 411 (9" Cir. 1997), concerning exhaustion issues within the meaning of Rule 32.1 (f).”
In its decision, the Arizona Supreme Court expressly held petitions for discretionary review are not
appeals. 962 P.2d at 207. The state supreme court’s opinion also confirms that Shattuck and Sandon
"squarely define the nature and scope of discretionary review by petition for review" in the Arizona
Supreme Court. Id. The Arizona Supreme Court reaffirmed that once a defendant has exercised
his right to direct appeal, discretionary review to that court should not be sought as a matter of
course. Id. at 208. In other words, discretionary petitions for review in Arizona are not part of the
ordinary appellate review procedure."
‘Rule 32.1(f) provides a petition for post conviction relief is available where: "The
defendant’s failure to appeal from the judgement, sentence, or both within the prescribed time was
without fault on the defendant’s part."
* The Arizona Attorney General, which was also counsel for the State of Arizona in Binford
and Moreno, both in the Ninth Circuit and the Arizona Supreme Court, never argued to the Arizona
Supreme Court that its rule about exhaustion was being misinterpreted by the Ninth Circuit and
never requested that the state supreme court straighten out this alleged error. Siaie oF Arizona’s
Respondents-Appellees’ Answering Brief, Arizona Supreme Court No. CV-97-0268-CQ, pp.20-21,
dated 11/4/97 (attached in Appendix C). Afterward, in supplemental briefs filed in the Ninth Circuit
in the Binford case, the Arizona Attorney General conceded Binford’s habeas petition was not
precluded concerning the voluntariness of his plea and effectiveness of his counsel because of the
Arizona Supreme Court decisions in Shattuck and Sandon. State of Arizona’s Respondents-
Appellees’ Supplemental Answering Brief, Ninth Circuit Court of Appeals No. 96-15189, pp.5,7,
dated 11/27/98 (attached in Appendix D). See also State of Arizona’s Brief in Opposition, Swoopes
v. Sublett, Supreme Court of the United States No. 98-7357, p.17 & n.4 ("Arizona prisoners were
justifiably confused" by these decisions to believe they need not seek review to that court to exhaust
state remedies). Attorneys for Binford, arguing the state court of appeals had actually decided those
two issues, asked that the district court’s order finding "no exhaustion" and "preclusion" on these
two issues be reversed and vacated. Supplemental Reply Brief of Petitioner/Appellant, Ninth Circuit
Court of Appeals No. 96-15189, pp.1-9,22-23, dated 12/28/98 (attached in Appendix E). The Ninth
14
This trilogy of Shattuck, Sandon, and Moreno make it abundantly clear that in Arizona,
petitions for discretionary review in the Arizona Supreme Court are not "a matter of course" but
rather are extraordinary, that is, outside the ordinary appellate review procedure. Additionally, these
cases also express the Arizona Supreme Court’s clear statement that it does not want the opportunity
to review constitutional issues once the Arizona Court of Appeals has ruled on them because of its
view the Arizona appellate review procedure is complete at that time. The Arizona Supreme Court
has maintained this position consistently since 1983, when the rule was enacted, and has never
disavowed that rule or repudiated the Ninth Circuit’s interpretation of that rule.
Petitioners are unable to provide any contrary authority. Instead, Petitioners improperly cite
an unpublished order from the Arizona Court of Appeals as support for its proposition that this Court
and the Ninth Circuit have mischaracterized Arizona law. Petition for Writ of Certiorari at 5 (citing
August 2, 1999 order in State v. Stephens, attached in Petitioners’ Appendix D) . This Court should
ignore this unpublished order and strike its reference from the brief and the copy of it from the
appendix.
Petitioners engage in conduct of "questionable propriety" in citing that unpublished order to
the Court, not only because Petitionc.:s Know. Arizona regards the order as barcie sc preccdcntial
value, but also because Petitioners conceal from this Court that their counsel was attorney of record
in that case, that their counsel sought to have the order published so it could be cited as precedent,
and that the Arizona Court of Appeals denied the request to publish the order. State ex rel. Arizona
Dep’t of Revenue v. Havasue Dunes Timeshare Ass’n, 958 P.2d 447, 452 n.1 (Ariz.App. 1998)
Circuit subsequently reversed and vacated the district court’s decisicn in part, in an unpublished
opinion. Ameen v. Rhode, 176 F.3d 481 (9" Cir. 1999)(Table).
15
’ "
(party’s "use" of " unpublished decision without precedential value" is "of questionable propriety"):
Appendices B.1 - B.3 (Order, dated Aug.2, 1999, p.3, showing Eric J. Olsson as counsel: Motion for
Publication, dated Aug.4, 1999, by Eric J. Olsson; Order, dated Feb.14, 2000, denying motion).
Arizona clearly regards an unpublished order as something that has no precedential value.
Rule 28 of the Arizona Rules of Civil Appellate Procedure establishes orders as having lesser
significance than written opinions, noting that such orders are a “disposition of a matter before the
court other than by opinion or memorandum decision.” Rule 28(a)(3). The rule further establishes
that even unpublished memorandum decisions (which are issued by three judge panels) "shall not
be regarded as precedent nor cited in any court" except for limited purposes not at issue here. Rule
28(c). Had the Arizona appellate court wished unpublished orders (particularly those by a single
judge) to be cited for any reason, it would have included them in Rule 28(c). Instead, the rule does
not expressly allow citation of unpublished orders for any purpose. The rule is clarified by Arizona
case law, which holds that publication of a court decision or order is the key to whether the decision
or order has any precedential value and may be cited as authority of the courts. See Francis v.
Arizona Dep’t of Transportation, MVD, 963 P.2d 1092, 1094 (Ariz. App. 1998)(a decision of the
appellate coui becomes "binding precedent when ii [is} piivlisued”); State v. Smith, O1¢ P24 228.
231 (Ariz.App. 1991)("unpublished memorandum decision" of appellate court "has no precedential
value"); State v. Poli, 776 P.2d 1077, 1078 (Ariz.App. 1989)(the appellate court issues published
opinions, which have precedential value, when necessary "for the benefit of the bench, the bar, and
the public;" otherwise, the court will issue unpublished orders); Barry v. Arizona Dep’t of Economic
Security, 542 P.2d 1138 (Ariz.App. 1984)(the court issues a "published opinion,” as opposed to "an
unpublished order," when necessary "to declare the proper rule and avoid confusion"). Therefore,
16
Petitioners’ improper citation to this Court of an unpublished order by a single judge, which
Petitioners know has no precedential value, should be resoundingly rejected in consideration of the
petition for writ of certiorari.”
The Arizona Supreme Court is undoubtedly aware of the Ninth Circuit’s Swoopes decision.
If Swoopes is incorrectly decided and the Arizona Supreme Court consider petitions for discretionary
review as part of the ordinary appellate review process, it can correct the Ninth Circuit error by court
rule, order, or opinion. Under its rule making authority, the Arizona Supreme Court can change
procedure in any Arizona Court. ARIZ.CONST. art. VI, § 5 (The Supreme Court shall have...
[p]ower to make rules relative to all procedural matters in any court); A.R.S. § 12-109(A); State ex
rel. Napolitano v. Brown, 982 P.2d 815, 817 (Ariz. 1999)("constitutionally vested, exclusive
rulemaking authority" resides with the Arizona Supreme Court); Slayton v. Shumway, 800 P.2d
590, 592 (Ariz. 1990)(such rulemaking authority is "broad" and exists "in all cases, criminal and
civil"). However, as noted above, the Arizona Supreme Court has been aware of the Ninth Circuit’s
interpretation of the Arizona appellate review process since at least 1991 (the Jennison and Harmon
cases) but has taken no action to disavow that interpretation or to change the rule, and instead has
> Thi. unpublished court of appeals order is unreliable as an indicator of Arizona law, not
just because it was issued by a single judge, nor because the judge refused to publish it as precedent,
nor even because the order appears to have been issued without briefing by a party opponent (the
defendant in the Stephens case), but also because it lacks analysis, such as that conducted by the
Ninth Circuit in Swoopes, of Arizona case law. As earlier stated, the trilogy of Shattuck, Sandon,
and Moreno, expressly place petitions for discretionary review outside the standard appellate review
process in Arizona. Moreover, the unpublished order seems to be based upon a misperception that
the Ninth Circuit, in its 1991 Jennison case, nullified Arizona’s procedural rule and that Arizona
would thus have to take some action subsequent to this Court’s O’Sullivan decision in order to
reverse Jennison.
17
reaffirmed that interpretation in its own recent opinion in Moreno v. Gonzales. The Arizona
Supreme Court remains silent because Swoopes is correctly decided, as was Harmon.
In conclusion, the Ninth Circuit Court of Appeals understands and correctly applied the rule
this Court announced in O’Sullivan v. Boerckel. In the instant Swoopes case, the Ninth Circuit
concluded that discretionary review to Arizona’s state supreme court is not necessary to exhaust state
remedies for federal habeas purposes because of its finding that such review is not part of Arizona’s
ordinary appellate review process. In Gatlin v. Madding, the Ninth Circuit concluded otherwise with
respect to California’s discretionary review to that state’s supreme court, because of its finding that
such review is part of California’s ordinary appellate review process. The Ninth Circuit, and all
other circuit courts of appeal, will continue to decide this question for each of the remaining states.
Pursuant to this Court’s rules and practice, however, this Court will not grant petitions for writ of
certiorari to undertake review of each circuit court of appeals decision of each of the fifty states
appellate review procedures, particularly because -- as Petitioners agree -- those courts "generally
[are] accord[ed] great deference to the interpretation and application of state law by the courts of
appeals.’" State of Arizona’s Respondents-Appellees’ Supplemental Brief on Remand From the
- United States supreme Coun, p.8 (yuciing McMilian v. Monroe Couniy, Alzbama, - 1.6. -, 147
S.Ct. 1734, 1737 (1997)(attached in Appendix A). Accord South Carolina v. Catawba Indian Tribe,
Inc., 476 U.S. 498, 511 (1986)("the Court of Appeals is in a better position to evaluate such an issue
of state law than we are"); Bishop v. Wood, 426 U.S. 341, 346 n.10 (1976)(reviewing Supreme
Court practice to defer to and uphold judgments of courts of appeal! on issues of state law unless their
conclusions are "unreasonable"). This Court leaves implementation and application of its decisions
to the federal district and circuit courts. Rule 10, Rules of the Supreme Court.
18
3. Swoopes is correctly decided and comity mandates Arizona should be
allowed to administer its discretionary appellate review system free from federal
interference.
This Court has noted comity interests drive the exhaustion rule. O’Sullivan, 119 S. Ct. at
1733. The Arizona Supreme Court has expressly held state remedies are exhausted, that is outside
the ordinary review procedure and unavailable under O’Sullivan, once a defendant’s exercises his
right to direct appeal. This Court should not, and has stated it will not, "ignore a state law" which
expressly provides that discretionary review, whether in Arizona’s Supreme Court or Court of
Appeals, is not available and not part of the ordinary appellate review procedure. Id. at 1734. To
ignore Arizona’s Clear statement of its rules and its wishes that Arizona defendants not seek review
in the state supreme court is to disserve comity.
Swoopes is correctly decided. Nevertheless, Petitioners speculate Swoopes will deprive the
Arizona Supreme Court of its jurisdiction in innumerable cases, dramatically increase the number
of claims that federal habeas courts must address on the merits, offend comity and retroactively
apply to all cases since Sandon was published in 1989. Petition for Writ of Certiorari at 8. None
of these assertions 1s supported by facts or law.
As noteu it) O’ Sullivan, since 1990 South Carolina iias made it piain thet c deieadant ueced
not seek discretionary review in the Supreme Court after an adverse decision in the state court of
appeals in order to exhaust state remedies. O’Sullivan, 119 S.Ct. at 1733-1735. South Carolina has
not changed this rule and its supreme court is doing what it is supposed to be doing - accepting
review only on issues of broad significance for South Carolina. "Claims of violations of well-
established constitutional rules, important as they may be to individual litigants, do not ordinarily
present such issues." Id. at 1739. Moreover, pro se defendants and attorneys who have issues of
19
broad significance for Arizona will still present those claims for discretionary review. A
discretionary petition canst hurt and will only potentially help their litigation. Petitioners’ contrary
argument, that the Arizona Supreme Court will somehow lose its jurisdictional base and ability to
control Arizona law is perplexing and unfounded. Not only will defendants continue to bring issues
to the state supreme court if those issues might possibly result in review (i.e., an "important" or
"substantial" issue of state law in which a "serious injustice” has occurred, Rule 31.19 & 1983
Comment, Ariz.R.Crim.P.), but so will the State of Arizona whenever it feels a decision of the court
of appeals is in error. It is through these encouraged petitions that the Arizona Supreme Court (as
does the South Carolina Supreme Court) obtains jurisdiction in issues of broad state significance.
Therefore, the Arizona Supreme Court will still continue to control Arizona law as it always had
done, including through publication of its own opinions or depublication of court of appeals
opinions.
Petitioner’s claim that, because of Swoopes federal courts will have to decide many more
claims on the merits, does not speak to comity but rather to Petitioner’s convenience. Pro se
defendants, because of Swoopes, have a simple exhaustion rule which benefits not only Arizona
couns, bui also unsophisticated pro se defriudants whowwill not ve tae last vicui OF comple acec
procedural default rules. This case illustrates the point. Mr. Swoopes had no counsel during his
litigation in federal district court. He sailed the complex sea of procedural default alone. The Ninth
Circuit appointed counsel on appeal after the State of Arizona and Mr. Swoopes filed their opening
briefs. Procedural default has been raised by Petitioner at every step of the litigation. The district
court reached the merits of only one of six claims. Federal courts have the duty to decide federal
20
|
constitutional claims so Jong as they are first presented to the state courts. Swoopes only requires
federal courts to exercise their duty in these cases as required by 28 U.S.C. § 2254.
Petitioners also allege Swoopes will be retroactively applied to all cases since Sandon was
decided in 1989, thereby inundating the Ninth Circuit with "thousands of § 2254 habeas cases.”
Petition for Writ of Certiorari at 3, 8. First, the issue of retroactivity is not relevant to the question
of whether Swoopes was correctly decided by the Ninth Circuit or to whether the petition for writ
of certiorari should be granted. Indeed, the question of retroactivity is not presented to the Supreme
Court in Petitioners’ petition and its resolution must await another day. Second, Petitioners present
no analysis to support their assertion and, in fact, Petitioners know and have already argued in the
Arizona case cited to this Court that the O’Sullivan rule could only be applied prospectively, to
future cases or possibly pending cases that are not yet final. See Motion for Reconsideration, p.3,
dated July 9, 1999, State v. Stephens, Arizona Court of Appeals No. 1 CA-CR 97-0458-PR
(Petitioners’ counsel stating that "[t}he rule [announced in O'Sullivan v. Boerckel] applies to all
prospective § 2254 habeas litigants .. . .")(emphasis added)(attached in Appendix B.4). Moreover,
as a practical matter, in a great many if not most of those cases no litigation would likely be possible
because they have been iully comtiuded ana sentences fuliy served. . —e
Petitioners additionally claim that Swoopes somehow offends comity because it will decrease
the number of discretionary review petitions filed in the Arizona Supreme Court. Petition for Writ
of Certiorari at 4, 6, 8. Petitioners’ argument is based upon its clearly mistaken view that the
Arizona Supreme Court has "never ... discouraged or prohibited timely petitions for discretionary
review of meritorious claims.” Id, at 4 (calling a contrary belief "imagined"). However, as already
discussed above, the Arizona Supreme Court has unequivocally stated since the 1983 amendment
21
to the discretionary review rule that such review should "not be sought as a matter of course.” Rule
31.19, Ariz.R.Crim.P., Comment [to 1983 amendment]; Moreno v. Gonzalez, 962 P.2d at 208
(Arizona Supreme Court reiterating in 1998 that "[o]nce a defendant has exercised his right to direct
appeal, further review in this court should ‘not be sought as a matter of course’" and, further, that
it “would not have encouraged discretionary filings") (citing the 1983 Comment). Without doubt,
the Arizona Supreme Court has not only "discouraged" discretionary review (except for issues of
“substantial issues" of state wide importance that involve "serious injustice, Rule 31.19, Comment),
but it has repeatedly and explicitly stated that such review is not part of the ordinary appellate review
procedure in criminal cases. Therefore, contrary to Petitioners’ claims, Swoopes serves comity
because it is entirely consistent with the clear statements and desires of the Arizona Supreme Court.
Finally, Petitioners mistakenly claim that the Swoopes decision will cause "chaotic parallel
state and federal litigation," because the decision will permit defendants to proceed to federal court
on habeas petitions while at the same time seeking discretionary review in the Arizona Supreme
Court. Petition for Writ of Certiorari at 9. Petitioners’ assertions are wrong because simultaneous
litigation in federal district court on habeas petitions and in other courts (whether state or even the
Supreme Court) auready is something that occurs und is easily dealt with by tie cuuris. See JAMES
S. LIEBMAN & RANDY HERTZ, Federal Habeas Corpus Practice and Procedure, §§ 5.1a, 5.2, 5.3, pp.
216-17, 249-51, 251-52 (3° Ed. 1998). Simultaneous litigation already can and does occur because
of the strict time limitations and tolling rules of the Antiterrorism and Effective Death Penalty Act
of 1996 (AEDPA), or because of the need to seek relief in the federal courts during pretrial criminal
proceedings in state courts (e.g., for illegal custody or untimely hearing issues) or in death penalty
case where immediate relief is necessary to avoid irreparable harm. Id. Any potential "trouble" that
22
might arise from such simultaneous litigation is easily remedied by the federal court either abstaining
from deciding the case under — v. Harris, 401 U.S. 37 (1971), or granting a stay of or
deferring adjudication (i.e., holding it in abeyance) of the habeas proceedings until the proceedings
in the other court are concluded. LIEBMAN at pp.216, 251 & n.10, 252. The potential trouble
Petitioners assert from the Swoopes decision is even more easily averted, because a defendant has
only 30 days under Rule 21.19(a), Ariz.R.Crim.P., from the decision of the court of appeals to file
a petition seeking discretionary review. By the time a defendant brings a habeas petition in federal
court, Petitioners will know if defendant has such review pending or decided and will alert the
district court and seek a stay or deferral. Therefore, contrary to Petitioners’ claims, the Swoopes
decision clearly will cause no troublesome simultaneous, wasteful, or conflicting litigation.
23
CONCLUSION
For the foregoing reasons, this Court should deny the petition for writ of certiorari.
RESPECTFULLY SUBMITTED: April 5, 2000
FREDRIC F. KAY
Federal Public Defender
District of Arizona
\ i len bey
Javigf Chon-Lopez
se Federal Public Defender
Counsel of Record
(Sec A Aes or om
Brian I. Rademacher
Office of the Federal Public Defender
97 E. Congress, Suite 130
Tucson, Arizona 85701-1716
Attorney for Respondent
24
APPENDIX A
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
No. 94-16033
SAMUEL W. SWOOPES,
PETITIONER-APPELLANT,
-vs-
TERRY L. STEWART, et al.,
RESPONDENTS-APPELLEES.
ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE DISTRICT OF ARIZONA,
No. CIV-93-00471-JMR
RESPONDENTS-APPELLEES’ SUPPLEMENTAL BRIEF ON
REMAND FROM THE UNITED STATES SUPREME COURT
GRANT WOODS
ATTORNEY GENERAL
PAUL J. MCMURDIE
CHIEF COUNSEL
CRIMINAL APPEALS SECTION
ERIC J. OLSSON
ASSISTANT ATTORNEY GENERAL
CRIMINAL APPEALS SECTION
400 W. CONGRESS, BLDG. S-315
TUCSON, ARIZONA 85701-1367
TELEPHONE: (520) 628-6504
ATTORNEYS FOR RESPONDENTS-APPELLEES
TABLE OF CONTENTS
PAGE
en A es EE 8 a ee Re eh ii
SEAT te OF FUP ke WER a eh Reha Re ES iv
QUESTIONS PREGENTEO FOR REVIED 655k cic cc bane eieads V
Dee Gee SO SU ea eee kD OA OES OES RR DOSS 1
SAE SOW PI 60k 6 ha ed a eee a ee ee 1
Po) ne re er a ee ema ee ee a ar ee ee a eee 2
I
PETITIONS FOR DISCRETIONARY ARIZONA SUPREME COURT REVIEW OF
THE ARIZONA COURT OF APPEALS’ DISPOSITION OF CRIMINAL
APPEALS AND OF PETITIONS FOR POST-CONVICTION RELIEF WERE
“PART OF THE ORDINARY APPELLATE REVIEW PROCEDURE IN THE
STATE” IN THE YEARS 1986 THROUGH 1991, AND THE PROCEDURE WAS
AVAILABLE DURING THAT TIME TO SAMUEL SWOOPES, THE SAME AS
TO “ANY PARTY” AS PROVIDED BY RULE 31.19, ARIZONA RULES OF
CRIMINAL PROCEDURE; THEREFORE, SWOOPES PROCEDURALLY
DEFAULTED ALL CLAIMS FOR WHICH HE DID NOT TIMELY SEEK THAT
oo a ae ar ae ae a are oar er ee peer ae ee ae ere ee ee eee 3
I]
BECAUSE PETITIONS FOR DISCRETIONARY ARIZONA SUPREME COURT
REVIEW OF THE ARIZONA COURT OF APPEALS’ DISPOSITION OF
CRIMINAL APPEALS AND OF PETITIONS FOR POST-CONVICTION RELIEF
ARE “PART OF THE ORDINARY APPELLATE REVIEW PROCEDURE IN
THE STATE,” THIS COURT MUST MAKE CLEAR THAT ARIZONA STATE
-PRISONERS WHO WISH TO EXHAUST CLAIMS PRESENTED TO THE
ARIZONA COURT OF APPEALS MUST SEEK DISCRETIONARY REVIEW BY
THE ARIZONA SUPREME COURT BEFORE RAISING THOSE CLAIMS IN A
PETITION FOR WRIT OF FEDERAL HABEAS CORPUS... .............. 7
CREE 6.9 4h le ak 4 ae Oe eee A ee oe oe KS 17
‘way we yy Ce Bo >» ee aa er a Ce ee 18
CERTIFICATE OF COMPLIANCE ....... 2c c eee sce cree ces enrecces 19
STATEMENT OF RELATED CASES .......- 2s se eeesesssscccereaes 20
TABLE OF AUTHORITIES
CASES PAGE
Bishop v. Wood, 426 U.S. 341, 96 5S. Ce. D074 CIBTE) 0. wee eines 8
a © Pees ee eee ee CO ROED kG ae eeecawwa eee eeae
ee err ne 12
Harmon v. Ryan, 959 F.2d 1457 (Sth Cir. 1992) ...........0c0000- 5-6, 11-13, 17
Jennison v. Goldsmith, 940 F2d 1308 (9th Cir. 1991) ....... eee e eee 1, 4-6, 10-13
Lehman Brothers v. Schein, 416 U.S. 386, 94 S. Ct. 1741 (1974) ..........0.0.. 16
Lockhart v. Fretwell, 506 U.S. 364, 113 S. Ct. 838 (1993) .................0.4. 8
McMillian v. Monroe County, Alabama, __—saU«.S. ___, 117 S. Ct. 1734 (1977)... .... 8
Moreno v, Gonzalez, 192 Ariz. 131, 962 P.2d 205 (1998)................... 16
O’Sullivan v. Boerckel, 119 S$. Ct. 1728 (1999) 2... ww cee cee 1-8, 12-15, 17
Pembaur v. Cincinnati, 475 U.S. 469, 106 S. Ct. 1292 (1986) ................. 8
State v. Sandon, 161 Ariz. 157, 777 P.2d 220 (1989) ................. 4, 6-8, 10-14
State v. Shattuck, 140 Ariz. 582, 684 P.2d 154 (1984) ..................2.5. 15
State v. Swoopes, 155 Ariz. 432, 747 P.2d 593 (App. 1987) ........00000-000. 1
UNITED STATES CODE
22° Peer re Ser eee eee. eee See ee ee ee ao ee ee iil
ee eer ee ee ee eee eee ee ee ee ee ee ee ee ee ee eee ee ili
Yo oe ere er re ee ae a ee ee ee oe ee eee iil
RULES
ee 2a ees Se ee GI ee eS ack A ee Ae Oe eens 5, 9-10, 14-15
Se Bees Ce ie I a Oe a oe OS OR eae eae 5
ill
STATEMENT OF JURISDICTION
These proceedings derive from a petition for writ of habeas corpus pursuant
to 28 U.S.C. § 2254. This Court has appellate jurisdiction under 28 U.S.C. §§
1291 and 2253. Swoopes remains imprisoned within the Arizona Department of
Corrections system.
iv
QUESTIONS PRESENTED FOR REVIEW
1. Were petitions for discretionary Arizona Supreme Court review of the
Arizona Court of Appeals’ disposition of criminal appeals and of petitions for post-
conviction relief “part of the ordinary appellate review procedure in the state” in
the years 1986 through 1991, i.e., was the procedure available during that time to
Samuel Swoopes the same as to “any party” as provided by Rule 31.19, Arizona
Rules of Criminal Procedure?
2. Are petitions for discretionary Arizona Supreme Court review of the
Arizona Court of Appeals” disposition of criminal appeals and of petitions for post-
conviction relief “part of the ordinary appellate review procedure in the state”
today, and must Arizona state prisoners who wish to exhaust claims presented to
the Arizona Court of Appeals seek discretionary review by the Arizona Supreme
Court before raising those claims in a petition for writ of federal habeas corpus?
STATEMENT OF THE CASE
The facts and procedural history of this case are summarized in State v.
Swoopes, 155 Ariz. 432, 432-33, 747 P.2d 593, 593-94 (App. 1987), and in the
district court’s order and memorandum opinion (CR 11), and they are set forth in
detail in Respondents’ second Answering Brief, dated December 15, 1997. There
appears to be no need to repeat them here.
On appeal, this Court affirmed the district court’s denial of habeas relief,
holding all but one of Swoopes’ claims precluded due to unexcused procedural
defaults. Swoopes v. Sublett, No. 94-16033 at 2-3 (mem. decision, May 8,
1998). From that judgment Swoopes sought a writ of certiorari in the United
States Supreme Court. The Supreme Court vacated this Court’s memorandum
opinion and remanded the matter for reconsideration in light of O’Sullivan v.
Boerckel, 119 S. Ct. 1728 (1999). This Court in turn ordered supplemental
briefing on what should be the appropriate disposition of Swoopes’ case in light
of Boerckel. (Order, filed June 22, 1999.)
SUMMARY OF ARGUMENTS
O'Sullivan v. Boerckel changes nothing in Swoopes’ case. It merely reiterates
the rule announced by this Court almost a decade ago in Jennison v. Goldsmith,
940 F2d 1308, 1310-11 and n.4 (9th Cir. 1991), that to exhaust state remedies for
purposes of federal habeas corpus, state prisoners must seek discretionary review
by the state’s highest court if that remedy is available and a part of ordinary
appellate procedure. Thus, because that common remedy was available to
Swoopes, he procedurally defaulted all claims for which he failed to seek that
remedy. This Court reached the correct result before in Swoopes’ case, and
Boerckel does not change that outcome.
However, because erroneous dictum in Boerckel about Arizona law portends
massive confusion for courts and litigants alike, this Court must make absolutely
clear to Arizona state prisoners that, despite any suggestion to the contrary in
Boerckel, they must petition for discretionary review in the Arizona Supreme
Court in order to exhaust claims that were presented to the Arizona Court of
Appeals, and that they must include in the petition for review all such claims that
they wish to preserve for federal habeas review.
ARGUMENTS
I
PETITIONS FOR DISCRETIONARY ARIZONA SUPREME COURT
REVIEW OF THE ARIZONA COURT OF APPEALS’ DISPOSITION
OF CRIMINAL APPEALS AND OF PETITIONS FOR POST-
CONVICTION RELIEF WERE “PART OF THE ORDINARY
APPELLATE REVIEW PROCEDURE IN THE STATE” IN THE
YEARS 1986 THROUGH 1991, AND THE PROCEDURE WAS
AVAILABLE DURING THAT TIME TO SAMUEL SWOOPES, THE
SAME AS TO “ANY PARTY” AS PROVIDED BY RULE 31.19,
ARIZONA RULES OF CRIMINAL PROCEDURE; THEREFORE,
SWOOPES PROCEDURALLY DEFAULTED ALL CLAIMS FOR
WHICH HE DID NOT TIMELY SEEK THAT REMEDY.
O’Sullivan v. Boerckel, 119 S. Ct. 1728 (1999), announced the following
rule: to exhaust state remedies for federal habeas purposes, “state prisoners [must]
file petitions for discretionary review when that review is part of the ordinary
appellate review procedure in the State.” 119 S. Ct. at 1733. The remedy of
discretionary review was available in 1987, and Swoopes timely sought such
review of his direct appeal but failed to include all his claims in the petition for
review. Discretionary review aisoO was aVaiiabdie in i9¢1, but Swoopes futied to
file a timely petition for Arizona Supreme Court review of the Court of Appeals’
affrmance of the denial of his petition for post-conviction relief—even after the
Court of Appeals granted him an extension of the filing deadline.’ Therefore,
under the rule announced in Boerckel, Swoopes defaulted all but one of his habeas
1. The procedural history of Swoopes’ claims is described in detail in
Respondents’ second Answering Brief, dated December 15, 1997, at pages 7-12.
3
claims by failing to seek the available state-court remedy of discretionary review.
See Jennison v. Goldsmith, 940 F2d 1308, 1310-11 and n.4 (9th Cir. 1991)
(“Although review under Rule 31.19 is discretionary, it is nevertheless a state
remedy that remains available”). This Court correctly held those claims
precluded. a
Dictum in the Boerckel opinion, however, erroneously cites State v. Sandon,
161 Ariz. 157, 777 P.2d 220 (1989), as an example of a state court that “do[es]
not wish to have the opportunity to review constitutional claims before those
claims are presented to a federal habeas court.” 119 S. Ct. at 1734. According
to that dictum, Sandon means that petitions for discretionary review by the Arizona
Supreme Court are “unwelcome,” at minimum, or that the remedy might even be
“unavailable,” if the Arizona Supreme Court has declared it so. Jd. Apparently,
that misperception of the meaning of Sandon is what motivated the United States
Supreme Court to order reconsideration in Swoopes’ case.
Boerckel’s reference to Sandon. is merely dictum because the Boerckel
decision turned on Illinois procedural law, not Arizona law, and Boercket held
only, as this Court did in Jennison, that state prisoners must seek discretionary
review if it is available as part of ordinary appellate procedures. 119 S. Ct. at
1734. While speculating that discretionary review might be unavailable or at least
“discouraged” in Arizona, the Boerckel Court did not actually decide that question
—properly so, because the court had received no briefing from any source
knowledgeable about Arizona’s procedures. Thus, not having decided the issue
of availability in Arizona, Boerckel at most merely requires this Court to make a
determin tior of the availability of the remedy with respect to Swoopes.
Roerckel’s broad rule, that discretionary review must be exhausted if
available, supports this Court’s previous findings of procedural preclusion because
“merely reiterates what this Court held in 1991 with respect to Arizona’s
procedures—that federal law dictates federal exhaustion requirements, and that
site prisoners must exhaust all available state remedies with respect to each claim,
ucluding discretionary review, if discretionary review is available. Jennison, 940
12d at 1310-11 and n.4; Harmon v. Ryan, 959 F.2d 1457, 1461 (9th Cir. 1992).
Roerckel’s dictum, on the other hand, is utterly wrong about Arizona Jaw.
In Arizona, discretionary review of a decision by the Court of Appeals in a
criminal case is available to “any party,” under Rule 31.19, Arizona Rules of
Criminal Procedure (promulgated by the Arizona Supreme Court), and it was
available to “any party” in 1987 and 1991, under the same rule, when Swoopes
defaulted his claims. The statistics reported by the Arizona Supreme Court make
clear that petitions for discretionary review are very much a part of ordinary
appellate procedure in Arizona—many hundreds of petitions are filed and
processed each year. See n.3, infra, and accompanying text. “Any party” may
timely file a petition for review by the Arizona Supreme Court. Rule 31.19(a),
Ariz. R. Crim. P. That is how the Arizona Supreme Court obtains jurisdiction
over all non-capital criminal appeals—by granting discretionary review. Boerckel’s
5
icterence to Sandon, suggesting that the Arizona Supreme Court does not “wish”
lo exercise that jurisdiction, is patently wrong.
Under the broad rule articulated in Boerckel and Jennison, Swoopes was
required to seek discretionary review in the Arizona Supreme Court because it was
an available state remedy—a feature of ordinary appellate procedure. Swoopes
did, in fact, petition for discretionary review after his direct appeal, demonstrating
the remedy’s availability, but he did not do so with respect to all his habeas
claims. This Court correctly held, in denying Swoopes’ appeal, that he had
defaulted all but his due process claim concerning the identification testimony.
Boerckel, like Jennison, supports this Court’s findings of procedural preclusion.’
2. Swoopes committed additional procedural defaults, of course, in the
district court, on those same defaulted claims, as this Court correctly held in its
now-vacated memorandum opinion. He waived the cause and prejudice issues
altogether by failing to offer the district court any explanation for his procedural
defaults. Swoopes v. Sublett, No. 94-16033 at 2-3 (mem. decision, May 8,
1998). Swoopes also waived the Harmon v. Ryan presumption of informed
-onfusion by failing to allege it or any other explanation for his procedural defaults
‘hen specifically admonished to do so by the federal district court.
6
II
WIECAUSE PETITIONS FOR DISCRETIONARY ARIZONA
SUPREME COURT REVIEW OF THE ARIZONA COURT OF
APPEALS’ DISPOSITION OF CRIMINAL APPEALS AND OF
Pl T1TIONS FOR POST-CONVICTION RELIEF ARE “PART OF
lili: ORDINARY APPELLATE REVIEW PROCEDURE IN THE
STATE,” THIS COURT MUST MAKE CLEAR THAT ARIZONA
STATE PRISONERS WHO WISH TO EXHAUST CLAIMS
PRESENTED TO THE ARIZONA COURT OF APPEALS MUST
SEEK DISCRETIONARY REVIEW BY THE ARIZONA SUPREME
COURT BEFORE RAISING THOSE CLAIMS IN A PETITION FOR
WRIT OF FEDERAL HABEAS CORPUS.
Merely to answer the narrow “Boerckel” question of the historical availability
of discretionary review with respect to Swoopes is not sufficient under the
circumstances. While this Court must resolve the issues with regard to Swoopes
in particular, this Court should also make clear that, despite any suggestion to the
contrary in Boerckel, state prisoners today must petition for discretionary review
in the Arizona Supreme Court in order to exhaust claims that were presented to the
Arizona Court of Appeals, and that they must include in the petition for review all
such claims that they wish to preserve for federal liaveas corpus review
This Court, in response to the United States Supreme Court’s remand, should
decisively refute Boerckel’s dictum on Sandon because Boerckel is utterly wrong
about Arizona law and threatens to engender massive confusion in this Circuit
concerning what state prisoners must do to exhaust state remedies in Arizona.
Such correction of the Boerckel Court’s dictum about Arizona law is not only
permissible but probably would be welcomed by that Court. The Court has
decisively rejected any notion that habeas petitioners have any enforceable interest
i courts making errors in their favor. Lockhart v. Fretwell, 506 U.S. 364, 113
S(t. 838 (1993). Moreover, the Court “generally accord[s] great deference to
the umtcrpretation and application of state law by the courts of appeals.” McMillian
1. Monroe County, Alabama, __ US. __, 117 S. Ct. 1734, 1737 (1977),
quoting Pembaur v. Cincinnati, 475 U.S. 469, 484 n.13, 106 S. Ct. 1292, 1301
n.13 (1986). Indeed, the United States Supreme Court “has accepted the
interpretation of state law in which the District Court and the Court of Appeals
lave concurred even if an examination of the state-law issue without such guidance
nught have justified a different conclusion.” Bishop v. Wood, 426 U.S. 341, 346,
96 S. Ct. 2074, 2078 (1976) (emphasis added).
The Boerckel opinion cites Sandon for the patently erroneous proposition that
the Arizona Supreme Court “dofes] not wish to have the opportunity to review
constitutional claims before those claims are presented to a federal habeas court.”
119 S. Ct. at 1734. Sandon says nothing of the sort, nor is that true. It is crucial
that this Court clear up as soon as possible the potential contusion created by
Boerckel.
A. WHAT WAS THE ARIZONA SUPREME COURT’S HOLDING IN SANDON?
State prisoner Mark Sandon, like many whose criminal convictions are
affirmed on direct appeal in the intermediate Arizona Court of Appeals, filed
through counsel a petition for discretionary review of the Court of Appeals’
decision. 161 Ariz. at 157, 777 P.2d at 220. The Arizona Supreme Court
eee =O SE
.
APPENDIX B.1
&
%
§
RECEr |
; pug 3 1999
| — DIVISION '
aol = APPEALS
207B . ooh Be ff STATE ae FRY tee
999
IN THE COURT OF APPEALS
STATE OF ARIZONA
DIVISION ONE
STATE OF ARIZONA,
1 CA-CR 97-0458-PR
Respondent,
DEPARTMENT D
v.
MARICOPA County
Superior Court
SCOTT ALAN STEPHENS,
No. CR 87-01066
Petitioner.
ORDER
The court has considered respondent's motion for
reconsideration of this court's order dated June 25, 1999. Relying
on O'Sullivan v. Boerckel, ____ ~+U.S. ____, 119 S. Ct. 1728 (1999),
this court entered an order denying petitioner's motion to file a
delayed petition for review to the Arizona Supreme Court as
unnecessary. Respondent has filed a motion for reconsideration and
pointed out that certain language in the O'Sullivan opinion may be
misleading. Since Jennison v. Goldsmith, 940 F.2d 1308 (9th Cir.
1991), the law has been that a defendant must exhaust all state
court remedies, including discretionary review by the Arizona
Supreme Court, to avoid a procedural bar to federal habeas
proceedings. While the Arizona Supreme Court may accept
Boerckel's, invitation to declare its discretionary review
procedure as outside the standard review process, it has not yet
done so. For these reasons and the reasons stated in the motion
for reconsideration,
1 CA-CR 97-0458-PR
(Page 2)
IT IS ORDERED granting the motion for reconsideration and
vacating this court's order dated June 25, 1999.
IT IS FURTHER ORDERED granting petitioner's motion to file a
delayed petition for review to the Arizona Supreme Court. Any
petition shall be filed on or before September 10, 1999.
DATED this _2nq day of August, 1999.
Zé,
K felibic—
RUDOLPH J. GERBER
PRESIDING JUDGE
Page 3
1 CA-CR 97-0458 PR
August 2, 1999
MARICOPA COUNTY
SUPERIOR COURT
CR 87-01066
A true ccpy of the foregoing
order was mailed
August 2, 1999 to:
Mr. Eric J. Olsson
Assistant Attorney General
402 West Congress
Room 315
Tucson, AZ 85701
Attorney for Respondent
Ms. Harriette Levitt
Law Office of
Harriette P. Levitt
485 South Main Street
Tucson, AZ 85701
Attorney for Petitioner
Mr. Scott Alan Stephens
ADOC 37436
ASPC - Winslow
2100 South Hwy 87
Winslow, BZ 86947
Petitioner
Honorable John Foreman, Judge
MARICOPA COUNTY SUPERIOR COURT
Suite 811
101 West Jefferson Street
Phoenix, AZ 85003
Glen D. Clark , Clerk
By
. a
Députy Cletk
APPENDIX B.2
i —) S ) r - o° |
|
a2 & Nn —-& ©
—
oy
16
IRE: VED
i
AUR oo SY |
maa ohn
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA,
1 CA-CR 97-0458-PR
RESPONDENT,
MARICOPA COUNTY
-VvSs- SUPERIOR COURT
No. CR-87-01066
SCOTT ALAN STEPHENS,
MOTION FOR PUBLICATION
PETITIONER.
Pursuant to Rule 111(A)(3) and (b)(1) and (b)(4) the Rules of the Arizona Supreme Court, the
State of Arizona respectfully requests publication of this Court’s Order, filed August 2, 1999, granting
reconsideration and explaining that Arizona prisoners must seek discretionary Arizona Supreme Court
review in order to avoid a procedural bar to federal habeas proceedings.
Not only does the Order merit publication pursuant to Rule 111 (6)(1) because it clarifies state law
on an issue of first impression that arose upon the issuance of O’Sullivan v. Boerckel, 119 S. Ct. 1728
(1999); the Order also addresses a matter of substantial importance to judges and litigants alike—what,
in liglu of Poerckel, state prisoners in Arizona must do to preserve claims for federal habeas review,
Rule 111(b)(4), R. Sup. Ct. Although state courts have no jurisdiction to announce federal exhaustion
requirements, the Order succinctly and unequivocally clears up the potential confusion, created by
dictum in Boerckel, about Arizona law, by stating that the Arizona Supreme Court "may accept
Boerckel’s invitation to declare its discretionary review procedure as as outside the standard review
process [but] has not yet done so."
If published, this Court’s Order would put an end to the ambiguity created by the erroneous
Boerckel dictum on Arizona law and would provide the State of Arizona with concrete authority with
//
//
which to rebut the inevitable future "Boerckel" claims of confusion about Arizona’s appellate
procedures. For these reasons, Respondents respectfully request publication.
DATED this 4th day of August, 1999.
Respectfully submitted,
JANET NAPOLITANO
ATTORNEY GENERAL
(FIRM STATE BAR No. 14000)
PAUL J. MCMURDIE
CHIEF COUNSEL
CRIMINAL APPBALS SEENON
ERIC J. OLSSON
ASSISTANT ATTORNEY GENERAL
CRIMINAL APPEALS SECTION
400 W. CONGRESS, S-315
TUCSON, ARIZONA 85701-1367
TELEPHONE: (520) 628-6504
(STATE BAR NUMBER 010085)
ATTORNEYS FOR RESPONDENT
COPIES of the foregoing were deposited
for mailing this 4th day of August, 1999, to:
SCOTT ALAN STEPHENS
ADOC 37436
ASPc - WLNSLOW
2100 S. Hwy 87
Winslow, AZ 86047
PETITIONER
HARRIETTE LEVITT
485 S. Main Street
Tucson, AZ 85701
Attorney for PETITIONER
HON. RUDOLPH J. GERBER
Presiding Judge
Arizona Court of Appeals, Division One
1501 W. Washington
Phoenix, AZ 85007-3329
ARTHUR HAZELTON
Deputy County Attorney
100 W. Washington Street, Ste. 2100
Phoenix, AZ 85003
PAUL J. MCMURDIE
Chief Counsel
Criminal Appeals Section
Office of the Attorney General
1275 W. Washington
Phoenix, AZ 85007-2997
HON. JOHN FOREMAN, Judge
Maricopa County Superior Court
Suite 811
101 W. Jefferson St.
Phoenix, AZ 85003
CRM95~-1125
951125d1.mpb
APPENDIX B.3
we
COURT OF APPEAL
STATE OF ARIZONA
FILED FEB 1 4 2000
DIVISION 1
STATE OF ARIZONA
IN THE COURT OF APPEALS ate
GLEN 0. bhaB, CLERK
STATE OF ARIZONA,
Respondent,
Vv.
SCOTT ALAN STEPHENS,
Petitioner.
DIVISION ONE
-
1 CA-CR 97-0458-PR
DEPARTMENT A
MARICOPA County
Superior Court ‘
No. CR 87-01066
eee ees ae es ee
ORDER
The court has considered respondent's motion for publication.
IT IS ORDERED denying the motion.
DATED this 14th day of February, 2000.
{2
A pdeth
nmrecrniell GERBER
PRESIDING JUDGE
Page 2
1 CA-CR 97-0458 PR
February 14, 2000
MARICOPA COUNTY
SUPERIOR COURT
CR 87-01066
A true copy of the foregoing
order was mailed
February 14, 2000 to:
Mr. Arthur Hazelton
Deputy County Attorney
Suite 2000
100 West Washington Street
Phoenix, AZ 85003
and
Mr. Eric J. Olsson
Assistant Attorney General
402 West Congress
Room 315
Tucson, AZ 85701
Attorneys for Respondent
Ms. Harriette Levitt
Law Office of
Warrceite BP. Levitt
485 South Main Street
Tucson, AZ 85701
Attorney fox Petitioner
Honorable John Foreman, Judge
MARICOPA COUNTY SUPERIOR COURT
Suite 811
101 West Jefferson Street
Phoenix, AZ 85003
Mr. Michael K. Jeanes, Clerk
MARICOPA COUNTY SUPERIOR COURT
Central Court Building
201 West Jefferson Street
Phoenix, AZ 85003
Glen D. Clark , Clerk /
By an
Me Ss
Deputy Clerk {,
APPENDIX B.4
Ow wo ww A wh &o DD WN
— mek i"
Yo noe = S&S
14}|
Ww WN
RECEI ED
: JUL 4 ~ 999
BY: si
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA,
1 CA-CR 97-0458-PR
RESPONDENT,
MARICOPA COUNTY
-VvSs- SUPERIOR COURT
No. CR-87-01066
SCOTT ALAN STEPHENS,
MOTION FOR RECONSIDERATION
PETITIONER.
Pursuant to Rule 31.18 of the Arizona Rules of Criminal Procedure, and at the request of the
Maricopa County Attorney, the State of Arizona moves for reconsideration of this Court’s Order, filed
June 25, 1999, denying Petitioner Stephens permission to file a delayed petition for review by the
Arizona Supreme Court. This Motion for Reconsideration is supported by the attached Memorandum
of Points and Authorities.
DATED this 9th day of July, 1999.
Respectfully submitted,
JANET NAPOMNITANO
ATTORNEY GENERAL
(FIRM STATE BAR No. 1400v)
PAUL J. MCMURDIE
CHIEF COUNSEL
CRIMINAL APPEALS i ION
4 ( WA —
of & S
ASSIST TTORNEY GENERAL
CRIMINAL APPEALS SECTION
400 W. ConGREss, S-315
TUCSON, ARIZONA 85701-1367
TELEPHONE: (520) 628-6504
(STATE BAR NUMBER 010085)
ATTORNEYS FOR RESPONDENT
MEMORANDUM OF POINTS AND AUTHORITIES
A. FACTUAL BACKGROUND.
Relying on the United States Supreme Court’s recent decision in O’Sullivan v. Boerckel, 119 S.
Ct. 1728 (1999), Petitioner Stephens asked this Court for permission to file a delayed petition for
discretionary review so that he could present federal constitutional claims to the Arizona Supreme Court
before advancing those claims in a federal habeas corpus petition. This Court, also relying on Boerckel
and citing State v. Sandon, 161 Ariz. 157, 158, 777 P.2d 220, 221 (1989), denied Stephens’ motion
as "unnecessary," asserting that "Arizona has made it clear that ‘once the defendant has been given the
appeal to which he has a right, state remedies have been exhausted.’" (Order, dated June 25, 1999.)
B. SUMMARY OF THE ARGUMENT. .
This Court erred as a matter of law in denying Stephens’ motion on the ground that it was
“unnecessary.” For reasons explained fully below, this Court’s statement about what is required to
exhaust state remedies for purposes of federal habeas corpus was not only erroneous but without
jurisdiction. Jennison v. Goldsmith, 940 F.2d 1308, 1310-11 and n.4 (9th Cir. 1991) (state courts lack
authority to define federal exhaustion requirements); Harmon v. Ryan, 959 F.2d 1457, 1460 (9th Cir.
1992) ("the exhaustion requirements of 28 U.S.C. § 2254 are a matter of federal law").
Stephens’ reliance on Boerckel was correct, and this Court’s reliance on Sandon was misplaced,
because discretionary review by the Arizona Supreme Court is "part of the ordinary appellate review
procedure in the State." 119 S. Ct. at 1733. When discretionary review by a state’s highest court fits
that description, Boerckel “requir[es] state prisoners to file petitions for discretionary review" in order
to preserve any claims they wish to present for federal habeas corpus review. Id. The question under
Boerckel is simply whether discretionary review by the state’s highest court is available as a part of the
State’s ordinary appellate review procedure. Jd. If it is, state prisoners must seek discretionary review
of any claims they wish to preserve for federal habeas proceedings. Jd. In Arizona, a timely petition
for discretionary review is an option available to "any party" under Rule 31.19(a), Arizona Rules of
Criminal Procedure, a rule promulgated by the Arizona Supreme Court.
The confusion created by erroneous dictum in Boerckel concerning State vy. Sandon is
understandable, but this Court must refrain from perpetuating the error. For all the reasons fully
2
n Wn &
ex
di
explained below, this Court should grant reconsideration, vacate the Order filed on June 25, 1999, and
dispose of Stephens’ motion on its merits.
C. ARGUMENT.
O’Sullivan v. Boerckel, 119 S. Ct. 1728 (1999), announced the following rule: to exhaust state
remedies for federal habeas purposes, "state prisoners [must] file petitions for discretionary review when
that review is part of the ordinary appellate review procedure in the State." 119 S. Ct. at 1733. The
rule applies to all prospective § 2254 habeas litigants except in those states where discretionary review
is unavailable. Jd.
Because discretionary review is available in Arizona, state prisoners here must seek it in order to
preserve claims for federal habeas litigation. Jennison v. Goldsmith, 940 F2d at 1310-11 and n.4
("Although review under Rule 31.19 [Ariz. R. Crm. P.] is discretionary, it is nevertheless a state
remedy that remains available"). The Ninth Circuit announced the Jennison rule almost a decade ago.
The Jennison rule has been in effect in the District of Arizona ever since, and Boerckel’s majority
holding merely reiterates it with respect to all federal circuits. See Harmon v. Ryan, 959 F.2d 1457,
1461 (9th Cir. 1992) (petition for discretionary review in Arizona Supreme Court is prerequisite to
federal habeas review); Coley v. Gonzales, 55 F.3d 1385, 1388 (9th Cir. 1995) (same).
Dictum in the Boerckel opinion, however, erroneously cites State v. Sandon, 161 Ariz. 157, 777
P 24 229 (1989), as an example of a state court that "do[es] not with to have the opportunity to review
constitutional claims before those claims are presented to a federal habeas court." 119 S. Ct. at 1734.
According to that dictum, Sandon means that petitions for discretionary review by the Arizona Supreme
Court are "unwelcome," at minimum, or that the remedy might even be “unavailable.” if the Arizona
Supreme Court has declared it so. Jd. Apparently, that misperception of the meaning of Sandon is what
motivated this Court to declare Petitioner Stephens’ request "unnecessary."
Boerckel’s reference to Sandon is merely dictum because the Boerckel decision turned on IIlinois
procedural law, not Arizona law, and Boerckel held only, as the Ninth Circuit did in Jennison, that state
prisoners must seek discretionary review if it is available as part of ordinary appellate procedures. 119
S. Ct. at 1734. While speculating that discretionary review might be unavailable or at least
“discouraged” in Arizona, the Boerckel Court did not actually decide that question—properly so, because
3
APPENDIX C
ARIZONA SUPREME COURT
GILBERT ARVIZO MORENO. SUPREME COURT
: PETITIONER-APPELLANT, No. CV-97-0268-CQ
-VS- UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVE GONZALEZ. Deputy Warden: No. 95-15063
GRANT WOODS, Attorney General,
RESPONDENTS-APPELLEES. UNITED STATES DISTRICT COURT
No. CV-93-00081-JET
DOUB BINFORD. SUPREME COURT
PETITIONER-APPELLANT, No. CV-97-0271-CQ
-VS- UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT ‘
WILLIAM RHODE; GRANT No. 96-15189
WOODS. Attorney General,
RESPONDENTS-APPELLEES. UNITED STATES DISTRICT COURT
No. CV-95-01357-EHC
RESPONDENTS-APPELLEES’ ANSWERING BRIEF
GRANT WOODS
ATTORNEY GENERAL
PAUL J. MCMURDIE
CHIEF COUNSEL
CRIMINAL APPEALS SECTION
1275 WEST WASHINGTON
PHOENIX, ARIZONA 85007-2997
TELEPHONE: (602) 542-4686
(STATE BAR NUMBER 010386)
ATTORNEYS FOR RESPONDENTS-APPELLEES
TABLE OF CONTENTS
PAGE
Sagee OF AUTHONTIOS .......ici.aciss4e-2e eee ii
SEATEMENT OF THE CAGE ... 5 6c 60 sic Abe l
ARGUMENTS
1. A State may exclude the presentation of constitutional claims if the
rule that precludes such consideration is “firmly established and
SOUNNTY TOMOWEE.” oes ck neues ¥eeeeee eee ee 8
tv
The statutory provisions of Article 29 of Title 13 contro] the
outcome of the two questions presented. ...............-- 10
3. Petitioners may not raise their claims pursuant to A.R.S.
§ 13-4231(6) or Rule 32.1(f), by alleging that their failure to file a
timely petition for review or Rule 32 petition was without fault on
GRE PME. oceans saanesbaanne eat cee 14
4. A.R.S. § 13-4232(B) is a mandatory rule of state law prohibiting
defendants from raising their present claims. .............. 20
5. The policy considerations for imposing mandatory state rules of
preclusion counsel this Court to strictly enforce the state’s
rr rrr ee 20
EAPGMAIEION cece acess bees taneeeeeeekadewaee +
QO
4. A.R.S. § 13-4232(B) is a mandatory rule of state law prohibiting
defendants from raising their present claims.
The second question presented is whether there exists a mandatory rule of
state law that would bar the defendants from raising their claims at this date.
A.R.S. § 13-4232(B) provides in pertinent part:
If a claim under § 13-4231. paragraph 4. 5, 6 or 7 is to be raised ina
successive or untimely petition. the notice shall set forth the substance of
the claim and the reasons for not raising the claim in the previous petition
or in a timely manner. If the notice does not state meritorious reasons
substantiating the claim and why the claim was not stated in the previous
petition or in a timely manner. the proceeding shal] be summarily
dismissed.
If either defendant attempted to raise their issues today, they would have to do so
by an untimely or successive petition. The Ninth Circuit opinions recognize that
the claims do not fit within paragraphs 4. 5. or 7. Therefore. unless defendants fit
within paragraph 6. there is no available procedure for these defendants to litigate
their claims. For the reasons discussed above, the defendants do not fit within
paragraph 6, and their petitions now would be summarily dismissed.
5. The policy considerations for imposing mandatory state rules of
preclusion counsel this Court to strictly enforce the state’s
procedural rules.
The policy ramifications for enforcing the state’s procedural rules are
illustrated in this Court’s opinion of Stare v. Sandon, 161 Ariz. 157, 777 P.2d 220
(1989). In Sandon. this Court addressed a question similar to the one it faces in
this case. Before Sandon was decided. this Court was inundated with motions
requesting the filing of delayed petitions for review. Federal law mandates that
every issue presented in a federal habeas petition must be fairly presented to the
state’s highest court. Castille v. Peoples. 489 U.S. 346, 351, 109 S. Ct. 1065
(1989). The fact that this Court has discretionary review does not alleviate a state
prisoner from at least attempting to present the claim to the Court in the -
20
“a
appropriate manner. Jd. Based on this requirement, if a defendant has failed to
present a claim to the state’s highest court. he must return to state court and
present the claim in the appropriate manner. Because there was no opinion from
this Court stating that it would not accept motions for delayed petitions for review.
defendant's were required to present the Court with such a motion. this Court
would then deny the motion, and the defendant would return to federal cour. This
Court became tired of the practice, and stated in Sandon that they would no longer
accept such motions. /d., 161 Ariz. at 158, 777 P.2d at 221 (claims not properly
raised from the court of appeals “are no longer open to substantive review in this
Court. or in any other court in Arizona”). Once the mandatory language was in
place. this Court was no longer deluged with such motions.
If this Court rules that defendants may file delayed petitions for review of
post-conviction relief petitions under Pope, it does not matter how circumscribed
this Court would attempt to limit the right, it would mean that all defendants would
then have to attempt to do so in order to exhaust their state remedies. Also. it
would not matter if the trial court granted or denied the request. because then the
defendant would have to seek review of the decision all the way to this Court. In
essence it would be Sandon revisited.” The same, or worse, can be said of filing
delayed petitions for post-conviction relief. Every defendant would attempt to
circumvent the rules by claiming he was not at fault, and each case would have to
ultimately be reviewed by this Court. A better result is to hold that the rules are
mandatory, which will mean that the federal courts will decide the cases without
7. According to the Federal District Court's Clerk's Office, there were 261 state habeas cases
in 1996. So far in 1997, there have been 267 filings. While not all of these cases would have to
be sent back, many would if there is no maridatory state law prohibiting their litigation.
21
ities,
Sad
returning them to state court, a result that is preferable to the victims of crime. and
the Arizona criminal justice system.
CONCLUSION
Based on the foregoing authorities and arguments. Respondents- Appellees
respectfully request that this Court hold that the inmates have no further remedies
in Arizona.
Respectfully submitted.
GRANT WOODS
ATTORNEY GENERAL i
\ /
/ : si Sac gta ‘1 }
‘ beni ! V/
ar j ee eee a —
Le ar ;
PAUL]. MCMURDIE
CHIEF COUNSEL
CRIMINAL APPEALS SECTION
ATTORNEYS FOR RESPONDENTS-
APPELLEES
22
APPENDIX D
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
No. 96-15189
DOUB BINFORD,
PETITIONER-APPELLANT,
-VS-
WILLIAM RHODE; GRANT WOODS,
Attorney General,
RESPONDENTS-APPELLEES.
ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE DISTRICT OF ARIZONA,
No. CIV-95-01357-EHC
RESPONDENTS-APPELLEES’ SUPPLEMENTAL ANSWERING BRIEF
GRANT WOODS
ATTORNEY GENERAL
PAUL J. MCMURDIE
CHIEF COUNSEL
CRIMINAL APPEALS SECTION
SUSANNA C. PINEDA
ASSISTANT ATTORNEY GENERAL
CRIMINAL APPEALS SECTION
1275 WEST WASHINGTON
PHOENIX, ARIZONA 85007-2997
TELEPHONE: (602) 542-4686
ATTORNEYS FOR RESPONDENTS-APPELLEES
TABLE OF CONTENTS
PAGE
Pl a a a a a ee ee ee a a eer aera ar iii
ee cs Seek hee kee RSD RAS DOSES ERO ON vi
QUESTION PRESENTED FOR REVIEW .... 0.20 c ccc cc cc sctsovcssee Vii
DUE GPP BUMP bce te ee cee eee emcees aebesasnnnen 1
TRTREREAEE Gr FUT oi rece eee ws ims esseeneiccasas 4
ARGUMENTS
I
AS THIS COURT HAS PREVIOUSLY HELD, FUNDAMENTAL ERROR
REVIEW BY THE ARIZONA COURT OF APPEALS ON DIRECT APPEAL
DOES NOT PRESERVE ANY CLAIMS FOR PURPOSES OF FEDERAL
PE +heed seek Okeke RADE NOOR N EER EO OO Oe eo 8 e 8 O88 5
II
PETITIONER CANNOT BOOTSTRAP HIS POST-CONVICTION RELIEF
CLAIMS TO HIS DIRECT APPEAL ON RESENTENCING. .............. 8
Ii]
THE ARIZONA SUPREME COURT’S DENIAL OF PETITIONER’S WRIT OF
HABEAS CORPUS FOR PETITIONER’S FAILURE TO STATE A CLAIM UPON
WHICH RELIEF COULD BE GRANTED DID NOT RESULT IN A REVIEW OF
Tite BEER ie OF PETIRIOINER © CLAIBED. on nc ccc esc escsnne 17
IV
THERE ARE NO STATE COURT REMEDIES AVAILABLE TO PETITIONER
TO EXHAUST HIS UNEXHAUSTED AND THUS, PROCEDURALLY —
Deere men, CLAAEIED OF ER. ccc cece ee ea ssanen 21
Vv
PETITIONER FAILS TO DEMONSTRATE CAUSE AND PREJUDICE THAT
WOULD EXCUSE HIS PROCEDURAL DEFAULT. .................. 24
eg dk va ee ew ca 26
er 27
CERTIFICATE OF COMPLIANCE ........ 0.2... .0 ccc cceceeceeuees 28
STATEMENT OF RELATED CASES ............0 ccc ececeececeeees 29
ii
TABLE OF AUTHORITIES
CASES PAGE
Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967) ........ 4,6, 11
Binford v. Rhode, No. CV-97-0271-CQ (Ariz. July, 1998) ............ 3
Castille v. Peoples, 489 U.S. 346, 109 S.Ct. 1065 (1989) ............ 19
Coleman v. Thompson, 501 U.S. 722, 111 S. Ct. 2546 (1991) ......... 23
Griswold v. Gomes, 111 Ariz. 59, 523 P.2d 490 (1974) ............. 19
Harmon v. Ryan, 959 F.2d 1457 (9th Cir. 1992) ............... m7
Harris v. Reed, 489 U.S. 255, 109 S. Ct. 1038 (1989) .............. 13
Hayes v. Lockhart, 766 F.2d 1247 (6th Cit. 1985) 2. wc tee 7
Hopkinson v. Shillinger, 954 F.2d 609 (10th Cir. ere ee 16
Hughes v. Idaho State Board of Corrections
mee Be Be a ee ee a ere 16
Jenison v. Goldsmith, 940 F.2d 1308 (1991) .. 2.0.0.0... eee eee. 5
Julius v. Johnson, 840 F.2d 1533 (11th Cir. 1988) ............... ae
Martinez-Villareal v. Lewis, 80 F.3d 1301 (9th Cir. 1996) ............ 8
Moreno v. Gonzalez, __—sAriz.__—, 962 P.2d 205 (1998) ..... Lh, By Bde oo
Murray v. Carrier, 47/ U.S. 478, 106 S.Ct. 2639 (1986) ..........16, 24
Ortiz v. Stewart, 149 F.3d 923 (9th Cir. 1998) ................ 21-23
~ Ortiz v. Stewart, 1998 WL 349467 at 4-5 (9th Cir. July 1, 1998) ........ 3
Poland v. Stewart, it? P.26 WS OG Ce: FOUR) nn. ok i eae un 7,8
Fuse v. Vane, G2 Foe FiSs Cit Coe. WRT) gg ioc vs ks ce ec 7
Reiger v. Christensen, 789 F.2d 1425 (9th Cir. 1986) .............. 16
Roettgen v. Copeland, 33 F.3d 36 (9th Cir.1994) ............... 19-21
State v. Court of Appeals, Division Two
Ml Agta. IGG, 456 Piae Doe CI 6 nek ee ceeen sh bussanwes 19
iii
State v. Curtis, 185 Ariz. 112, 912 P.2d 1341 (App. 1995) ........... 23
State v. Gause, 112 Ariz. 296, 541 P.2d 396 (1975) 2.1... cc eee ene 15
State v. Ikirt, 160 Ariz. 113, 770 P.2d 1159 (I9BJ) ww ce eee 13
State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969) .............. 6, 11
State v. Manning, 143 Ariz. 139, 692 P.2d 318 (App. 1984) ........ 19, 21
State v. McCall, 139 Ariz. 147, 677 P.2d 920 (1983) .............. 13
State v. Pope, 130 Ariz. 253, 635 P.2d 846,(1981) .............-.-. 13
State v. Sandon, 161 Ariz. 157, 777 P26 220 (ISSR) ww cc eee 18
State v. Wynn, 114 Ariz. 561, 562 P.2d 734 (Ct. App. 1977) ......... 14
Tacho v. Martinez, 862 F.2d 1376 (9th Cir. 1988) ..............4.. 16
Thomas v. Goldsmith, 979 F.2d 746 (9th Cir. 1992) ............. » ae
Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060 Sr aren eee 16, 24
Whiee v. Lewis, 74 F.2d She GU Ce, TOG) nnn ce recess 24
Ylst v. Nunnemaker, 501 U.S. 797, 111 S. Ct. 2590 (1991) .......... 21
CONSTITUTIONAL PROVISIONS
ee OG ee a ae eS eS ee vi
ee ee, i ae ck a ee a oe ek ke vi
ee Se I ks en Se Ok Oe ee Vi
STATUTES
Oe DR ee eee eee ees eR COTTER CEC RTT COLE 6
Re ee ek Oe eR a eS A eR ee 17
iV
RULES
& & Re Se Re Serre yee re ee ae ee ee ee ee 14
Ep er re are te a 2, 18
fo ae ee ae FS eee ee ee ee eee eee eS 2, 4, 12, 14, 15 18, 21
oe RE er eer eae ar ar ae i9
fh * Peer ere eee eT eee Gr Mee ah kok 4 6-4 48 23
8 RO ee eee ear ee ee ee t, 24, 4, a
re ee er a ek ek ee a ee ee 8 88 8 23
Rule 32.2(c), Ariz. R. Crim. P. ..... Creer esc? (ty te eee eee 20
ee gh a oe eee 22, 23
Rule 32.9, Artz. R. Crim. PF... ccc cece cee nesses 13, 14, 15
fk ye RS) Peeerrererrry a Teer Terre eS 8, 15
re ee, ee Oe, a a sk a ek Re ee a eee 13
rr rn er, Se Oe as Cee Ge ae Se ek ee ke vi
I I OR cn a ne Pe ae he ce vi
STATEMENT OF JURISDICTION
The district court had subject-matter jurisdiction over the petition for weit of
habeas corpus under 28 U.S.C. § 2254. On January 3, 1996, the district court
entered its order denying the petition, which was a final order under Rules 54(a)
and 58 of the Federal Rules of Civil Procedure. On January 19, 1996, Petitioner
filed a notice of appeal that was timely under Rule 4(a) of the Federal Rules of
Appellate Procedure. On ase 26, 1996, the district court granted a certificate
of appealability. This Court has appellate jurisdiction under 28 U.S.C. §§ 1291
and 2253.
QUESTION PRESENTED FOR REVIEW
4
1. Did the Arizona Court of Appeals’ fundamental review of the record in
Petitioner’s direct appeal constitute a review on the merits of Petitioner’s
“unintelligent plea” claim and his ineffective assistance of counsel claim, and
thereby, excuse Petitioner’s procedural default?
2. Did the district court err in finding that Petitioner did not exhaust his
claims in his direct appeal from his 1993 resentencing?
3. Did the district court err in finding that Petitioner’s state habeas petition
to the Arizona Supreme Court did not serve to exhaust his claims of error?
Vii
STATEMENT OF THE CASE
For purposes of this supplemental brief, Respondents will not repeat the
statement of the case previously presented in its original answering brief.
Respondents will, however, supplement the original statement of the case with the
procedural history of the case since briefing was completed in this matter, and
when necessary to assist this Court, will provide pertinent facts in each argument.
On June 19, 1997, following briefing on Petitioner’s direct appeal, this Court
issued an order certifying the following questions to the Supreme Court of
Arizona:
1. May Binford raise his ineffective assistance of trial counsel
and unintelligent plea claims by alleging, pursuant to
Rule 32.1(f), that the failure to file a timely petition for
review was without fault on his part?
2. Does any mandatory rule of state law bar Binford from raising
his ineffective assistance of trial counsel and unintelligent plea
claims at this date?
Because these questions mirrored those certified to the Arizona Supreme Court by
this Court in Moreno v. Gonzales, No. 95-15063, the Arizona Supreme Court
consolidated both matters and accepted the questions posed. On July 17, 1998, the
Arizona Supreme Court issued its opinion addressing the questions presented as
follows:
Question One:
Under Rule 32.1(f), the term “appeal” means direct appeal under
Rule 31 of the Arizona Rules of Criminal Procedure, and thus, a petition
for review to the Arizona Supreme Court following direct appeal, and
a petition for review following denial of post-conviction relief in the trial
court, are not “appeals” within the meaning of Rule 32.1(f) of the
Arizona Rules of Criminal Procedure. As a result, the Arizona Supreme
Court held that Petitioner may not, under Rule 32.1(f), file a delayed
petition for review raising his ineffective assistance of trial counsel and
unintelligent plea claims to the state appellate courts.
Question Two:
Due to the broad nature of this certified question, whether any
mandatory rule of state law bars Petitioner’s claim, the Arizona Supreme
Court chose not to answer this question categorically, but to share
insight into the rules that govern Arizona’s post-conviction relief
remedies. Noting the 1992 amendments to Rule 32 of the Arizona Rules
of Criminal Procedure which require that in noncapital cases the notice
of post-conviction relief be filed within 90 days of the entry of judgment
and sentence or within 30 days of the order and mandate affirming the
judgment and sentence on direct appeal, whichever is later, and noting
that the only exception to these time limits, 171 Ariz. XLIV (1992), is
inapplicable to Petitioner, the Court held that Petitioner cannot now file
a first petition for post-conviction relief.
Moreno v. Gonzalez, ___ Ariz. », _._» 962 P.2d 205, 208-09 (1998).
Petitioner moved the Arizona Supreme Court to reconsider its decision, which the
Arizona Supreme Court denied. (Petitioner’s Excerpt 31.) The Arizona Supreme
Court issued its mandate on October 7, 1998. (Petitioner’s Excerpt 32.)
On August 3, 1998, this Court ordered supplemental briefing as follows:
The parties shall address, inter alia, Binford v. Rhode, No. CV-97-
0271-CQ (Ariz. July, 1998) and Ortiz v. Stewart, 1998 WL 349467 at
4-5 (9th Cir. July 1, 1998).
On November 9, 1998, Petitioner served Respondents with a copy of their
supplemental opening brief pursuant to that order.
SUMMARY OF ARGUMENT
The Arizona Court of Appeals’ fundamental error review of Petitioner’s direct
appeal, filed pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396
(1967), did not serve to preserve Petitioner’s claims for federal review. Nor did
Petitioner’s attempt to bootstrap his post-conviction relief claims to his direct
appeal following resentencing exhaust his claims. The Arizona Court of Appeals
clearly stated that it would not address the claims, noting that the only issue
properly befnne it was the validity of the sentence imposed on Count II following
resentencing. |
Petitioner’s futile attempt to present his abandoned post-conviction claims to
the Arizona Supreme Court in a state habeas corpus proceeding also failed.
Finally, the Arizona Supreme Court’s recent ruling finding that Petitioner can
not file a delayed petition for review from his first post-conviction relief
proceedings under Rule 32.1(f) of the Arizona Rules of Criminal Procedure, and
its holding that Petitioner can not file a “first” petition for post-conviction relief
under Rule 32, precludes Petitioner from now trying to present his claims to the
State’s highest court in a procedurally appropriate manner. As a result, the district
court did not err in finding that Petitioner had procedurally defaulted on his
claims, an
petition.
AS *
ERR’
DIRE
PURI
Petiti
Court of .
not intelli
argues tha
provided b
to present
cisims for
the Harm
review of
not result
A. 1989 #
Bs
Goldsmit}
is, and that his failure to show cause and prejudice required dismissal of his
on.
ARGUMENT
I
AS THIS COURT HAS PREVIOUSLY HELD, FUNDAMENTAL
ERROR REVIEW BY THE ARIZONA COURT OF APPEALS ON
DIRECT APPEAL- DOES NOT PRESERVE ANY CLAIMS FOR
PURPOSES OF FEDERAL REVIEW.
Petitioner contends that, by virtue of his 1989 direct appeal, the Arizona
t of Appeals necessarily reviewed the merits of his claims that his plea was
ntelligently entered and that trial counsel was ineffective. Petitioner further
*s that, because his direct appeal took place during the window of opportunity
ded by Harmon v. Ryan, 959 F.2d 1457 (9th Cir. 1992),’ he was not required
esent these claims to the Arizona Supreme Court, and thus, has exhausted his
is for federal review. Although Petitioner’s direct appeal admittedly fell within
Jarmon window, his claim must fail because the Arizona appellate court’s
w of the record for fundamental error, contrary to Petitioner’s contention, did
esult in his current claims being “fairly presented” to the state appellate court.
989 APPEAL.
1. See Jennison v. Goldsmith, 940 F.2d 1308, 1311 (1991); Thomas y.
smith, 979 F.2d 746, 750 (9th Cir. 1992).
5
After entering his change of plea and being sentenced to prison, Petitioner
filed a timely notice of appeal. Appointed counsel, in compliance with Anders v.
California, 386 U.S. 738, 87 S. Ct. 1396 (1967), and State v. Leon, 104 Ariz.
297, 451 P.2d 878 (1969), filed an opening brief stating that he had reviewed the
record and found no arguable issues. (Respondents’ Excerpt A.) Although the
Arizona Court of Appeals gave Petitioner an opportunity to file a supplemental
brief, he did not. (Petitioner’s Excerpt 14.) On February 21, 1989, the Arizona
Court of Appeals issued its memorandum decision affirming Petitioner’s
conviction. (/d.) Contrary to Petitioner’s contention, although the Arizona Court
of Appeals noted that the rial court had found Petitioner’s plea “was made
knowingly, intelligently, and voluntarily; was not the result of force, threats, or
promises; and was factually supported,” the appellate court made no such
independent finding. (/d. at 3.) Instead, the court merely held that, “pursuant to
A.R.S. § 13-4035, [it had] fully reviewed the record and {found} the appeal io be
hen merit.” (/d.) The court also advised appellate counsel of his duty to inform
Petitioner of the status of his appeal and Petitioner’s future options, including the
option of filing a pro per motion for reconsideration or petition for review. (Id.)
The case became final on March 28, 1989, when the court of appeals issued its
mandate following Petitioner’s failure to file either a motion for reconsideration
or a petition for review. (Respondents’ Excerpt B.)
B. THE ARIZONA COURT OF APPEALS, BY VIRTUE OF ITS FUNDAMENTAL
ERROR REVIEW, DID NOT ADDRESS THE MERITS OF PETITIONER’S CLAIMS.
Although a Petitioner’s failure to take his direct appeal to the state’s highest
court may have been excused under this Court’s opinion in Harmon v. Ryan,
because Petitioner did not raise any claims in his direct appeal, he cannot be said
to have exhausted his state remedies with respect to any of his current claims of
error.
The Arizona Court of Appeals review for fundamental error in no way
constitutes review on the merits of all claims Petitioner could have presented but
chose not to. This Court, the First, Eighth, and Eleventh Circuit Court of Appeals,
have rejected the claim that an appellate court’s generalized review of an appellate
record for error constitutes “implicit consideration” of all claims not raised and
that such a review is sufficient to satisfy the fair presentation requirement. Poland
v. Stewart, 117 F.3d 1094, 1105 (9th Cir. 1996); Julius v. Johnson, 840 F.2d
1533, 1546 (11th Cir. 1988); Puleio v. Vose, 830 F.2d 1197, 1200 (Ist Cir.
1987); Hayes v. Lockhart, 766 F.2d 1247, 1252 (8th Cir. 1985). This Court has
specifically held that the duty of the Arizona appellate courts to review the record
in a case for “fundamental error,” a duty imposed by a now-repealed statute, does
7
APPENDIX E
No. 96-15189
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DOUB BINFORD, ‘
Petitioner-Appellant
Vv.
WILLIAM RHODE; GRANT WOODS,
Attorney General,
Respondents-Appellees
SUPPLEMENTAL REPLY BRIEF OF PETITIONER/APPELLANT
FREDRIC F. KAY
FEDERAL PUBLIC DEFENDER
Denise I. Young
Assistant Federal Public Defender
Arizona State Bar No. 007146
97 E. Congress, Suite 130
Tucson, AZ 85701
(520) 620-7048
Attorneys for Petitioner-Appellant
TABLE OF CONTENTS
TABLE OF AUTHORITIES
xs RESPONDENTS CONCEDE THAT ISSUES CONSIDERED BY
THE ARIZONA COURT OF APPEALS IN PETITIONER’S
DIRECT APPEAL ARE EXHAUSTED
II. PETITIONER’S MISLABELED PRO SE PETITION FOR
REVIEW EXHAUSTED HIS CLAIMS
III.PETITIONER’S CLAIMS WERE EXHAUSTED IN HIS STATE
HABEAS PETITION
IV. NO MANDATORY BAR PREVENTS PETITIONER FROM
RETURNING TO STATE COURT TO EXHAUST HIS CLAIMS
¥. CAUSE AND PREJUDICE EXIST TO OVERCOME THE
ALLEGED PROCEDURAL DEFAULTS
CONCLUSION
ii
ae
14
17
19
TABLE OF AUTHORITIES
FEDERAL CASES
Anders v. California, 386 U.S. 738 (1967) a
Binford v. Rhode, 116 F.3d 396 (9th Cir. 1997) .. 13
Calde Vv - Moe! , 144 F.3d 618 (9th Cir.
1998) ee etn eee ee ee ek oy gs ig 13
Ceja v. Stewart, 97 F.3d 1246 (9th Cir. 1996) re ee
Coleman v. Thompson, 111 S. Ct. 2546 (1991) age
Colson v. Smith, 438 F.2d 1075 (5th Cir. 1971) ... 9
Harris v. Reed, 489 U.S. 255 (1989) ree ee | eee
irre vy Ceeeias, 477 U.8. 476 (1906) . . « ss 14
Ortiz v. Stewart, 149 F.3d 923 (9th Cir. 1998) .. 12
Poland v. Stewart, 117 F.3d 1094 (9th Cir. 1996) .. 7
chlup v. , 115 S. Ct. 851 (1995) wae. te |, See
Stringer v.-Black, 503 U.S. 222 (1992) ..... 8, 12
v. N m , 501 U.S. 797 (1991) ee es
STATE CASES
Brooks v. State, 130 Ariz. 418, 636 P.2d 1200 (1981) 10
Bustamonte v. Ryan, 175 Ariz. 327, 856 P.2d 1205 (App.
1993) ee ee ee ee ee ee ee ee eee ee 10
ii
Busy Bee Buffet, Inc, v. Ferrell, 82 Ariz. 192, 310
P.2d 817 (1957) ee ee ee ee ee ee eee ey
Floyd v. Superior Court, 134 Ariz. 472, 657 P.2d 885
(App. 1982) ieee Kk a OR OR Se ear 2a Os 10
Graham v. Salazar, 135 Ariz. 334, 661 P.2d 184 (1983) 10
Moreno v. Gonzales, Binford v. Rhode, 192 Ariz. 131,
962 P.2d 205 (1998) ie a ak ie eee ee ie, gO ee
State v. Barnes, 167 Ariz. 186, 805 P.2d 1007 (1991) 4
State v. Brewer, 170 Ariz. 486, 826 P.2d 783 (1992) 5
State v. Church, 109 Ariz. 39, 504 P.2d 940 (1973) . 5
State v. Cuffle, 171 Ariz. 49, 828P.2d 773 (1992). . 4
State v. Davis, 148 Ariz. 62, 712 P.2d 975 (App. 1985)11
State v. Dawson, 164 Ariz. 278, 792 P.2d 741 (1990) 3
State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969) ~ 2
State v. Lopez, 153 Ariz. 285, 736 P.2d 369 (1987) 2, 4
State v. Mauro, 159 Ariz. 186, 766 P.2d 59 (1988) ee
State v. Nevel], 165 Ariz. 362, 798 P.2d 1371 (App.
1990) Cee ea eo Se & ST Re aE en SS a eS ee
State v. Noleen, 142 Ariz. 101, 688 P.2d 993 (1984) 6, 7
State v. Robinson, 24 Ariz. App. 372, 539 P.2d 176
(App. 1975) a ae "de We nt be a ae ee ee ee ee 3, 4
iii
State v. Smith,
State v. Smith,
State v. Thomas,
1990)
n
(App.
A.
A.
ms
R.
S
Si.
v. Wi
V
1978)
§ 13-4035
§13-4233
136: Ariz. 273, 665 P.2d 995 (1983)
5
171 Ariz. 501, 831 P.2da 877 (App. 1992)
’
165 Ariz. 573, 799 P.2d 914 (App.
102 Ariz. 271, 428 P.2a 423 (1967)
W
, 121 Ariz. 230,
ARIZONA STATUTES
589 P.2d 473
a
2
10
I. RESPONDENTS CONCEDE THAT ISSUES CONSIDERED BY THE
ARIZONA COURT OF APPEALS IN PETITIONER’S DIRECT
APPEAL ARE EXHAUSTED.
Respondents concede that the claims considered and
rejected by the Arizona Court of Appeals in
Petitioner’s 1988 direct appeal from his guilty plea
and sentence are exhausted. Supp.Ans.Brf. at 5, 7.
Respondents argue, however, that although the Arizona
Court of howeaie issued a decision and affirmed
Petitioner’s guilty plea conviction and sentence, the
appellate did not consider any claims.* Id. at 8. The
facts and law show otherwise.
*Later, however, Respondents admit that the
appellate court did consider and reject Petitioner’s
Claims of ineffective counsel and uninteliigent pica in
the 1988 appeal: “[Flinding that the claims Petitioner
-oryre’ 1 errr s
disposed of in petitioner’s 1988 appeal, and in
Petitioner’s postconviction relief proceedings, the
Arizona Court of Appeals refused to address
Petitioner’s supplemental claims of error.”
Supp.Ans.Brf. at 11 (emphasis added). Obviously these
claims could not have been “argued and disposed of” in
the 1988 appeal without the appellate court reviewing
and rejecting them.
In its decision affirming Petitioner’s guilty plea
conviction and sentence, the Court of Appeals
specifically discussed the facts surrounding the guilty
plea Petitioner entered and his motion to withdraw it.
It stated that shortly after entering the plea,
Petitioner “moved to withdraw” it because “he did not
understand the terms, conditions and consequences,” and
that “the trial court denied the motion.” ER 14 at 1.
The appellate court stated that the trial “court
determined that [Petitioner’s] change of plea was made
knowingly, intelligently, and voluntarily” and “was not
the result of force, threats, or promises; and was
factually supported.” Id. at 3.
The appellate ccurt then cxrlained that “pvrsuant
to A.R.S. § 13-4035,” it had “fully reviewed the
record” and found “the appeal to be without merit.” It
then “affirmed” the “judgment of conviction and the
sentence imposed.” Id. at 4.
This review necessarily included the claims
2
eee
Petitioner raised below that his guilty plea was
unintelligent and his counsel ineffective because “he
did not understand the terms, conditions and
consequences of his plea.” ER 14 at 1. The appellate
court’s duties under A.R.S. § 13-4035, and Anders v,
California, 386 U.S. 738 (1967),? required the court to
conduct “[a]Jn exhaustive search of the record” for
fundamental and “prejudicial error.” State v. Leon,
104 Ariz. 297, 300, 451 P.2d 878, 881 (1969); see also
State v. Lopez, 153 Ariz. 285, 736 P.2d 369 (1987). As
the Arizona courts have explained, the “scope of
review” in “a criminal defendant’s appeal from either a
conviction or sentence” “necessarily includes a review
=
es
of Lait
Vaiidity of the conviction,* State >. Srith, i71
(i)
Ariz. 501, 504, 831 P.2d 877, 880 (App. 1992), and “the
entire record” “regardless of the grounds urged in that
“Counsel appointed by the court to represent
Petitioner in his direct appeal from his guilty plea
and sentence filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967).
3
appeal.” State v. Dawson, 164 Ariz. 278, 283, 792 P.2d
741, 746 (1990). The appellate court “will search the
record and correct ‘fundamental error’... even if not
raised in the trial court or on appeal.” Id.
(citations omitted). See also State v. Mauro, 159
Ariz. 186, 193, 766 P.2d 59, 66 (1988) (Arizona
appellate courts have “a duty to search the record for
fundamental error whether a defendant specifies exactly
where it is located or not.”).
When a conviction results from the entry of a
guilty plea, the appellate court necessarily reviews
whether the plea was constitutional, including whether
it was entered knowingly, intelligently and
voluntarily. For example, in State v_Rohinson, 74
Ariz. App. 372, 539 P.2d 176 (App. 1975), appellate
counsel filed an Anders brief in the consolidated
appeal of the defendant’s three guilty plea
convictions. Although counsel raised no issues as to
the pleas the defendant entered, the appellate court
o
nonetheless reviewed the record to determine the
constitutionality of the pleas. After that review, it
concluded that the guilty plea entered in one case was
unconstitutional, but that the pleas in the other two
cases were “knowingty, intelligently and voluntarily
entered.” Id., 24 Ariz.App. at 373-374, 539 P.2d at
177-178. See also State v. Cuffle, 171 Ariz. 49, 50,
828 P.2da 773, 774 (1992) (counsel filed Anders brief on
appeal; court remanded for hearing “to determine if, at
the time of the pleas of no contest, the defendant
knew, Or was advised by counsel before the pleas, of
the nature of the offenses to which he was pleading no
contest”); State v. Barnes, 167 Ariz. 186, 805 P.2d
1007 (19°91) ‘counsel filed Anders brief in court of
appeals; “[u]pon reviewing the record, the court [of
appeals] concluded that... [trial court] had failed to
inform her of the rights she waived....”)?; State v,
>The Arizona Supreme Court, however, disagreed with
the lower appellate court’s conclusion concerning the
5
Lopez, 153 Ariz. at 286, 736 P.2d at 370 (although no
issue raised as to constitutionality of plea, appellate
court “pursuant to A.R.S. § 13-4035 and Anders v.
California, [citation omitted], reviewed the entire
record in this case” and concluded that the “facts and
circumstances justified the acceptance of the plea of
guilty” and the “record also reflects that the
defendant knowingly, voluntarily and intelligently
entered into the plea agreement ....”); State v.
Thomas, 165 Ariz. 573, 574, 799 P.2d 914, 915 (App.
1990) (counsel filed Anders brief; court “searched
record for fundamental error” and “found none”; “change
of plea and sentencing hearings” were proper); State
s. Neyell 16۩ Ariz 362, 264, 798 P.2?da 1371. 1373
(App. 1990) (counsel filed Anders brief; court
determined trial court erred in sentencing defendant
validity of the defendant’s plea, and affirmed the
defendant’s conviction and sentence. Id., 167 Ariz. At
191, 805 P.2d at 1011.
pursuant to plea agreement) ; State v, Church, 109 Ariz.
39, 41, 504 P.2d 940, 942 (1973) (“Although not raised
by appellant, in searching the record for fundamental
error in compliance with A.R.S. § 13-1715, subsec. B,*
we have found that the record does not affirmatively
show that defendant was aware of one of the
consequences of his plea....”); State v. Willard, 102
Ariz. 271, 272, 428 P.2d 423, 424 (1967) (“we have
searched the entire record for fundamental error as
required in §13-1715 A.R.S. The record discloses
that defendant’s plea of guilty was voluntarily
given.” )
In addition, the Arizona courts’ review for
fundamental error includes a search for ineffective
assistance of counsel:
Once a defendant files an appeal ..., we are
expressly required by statute to review issues
‘This statute was renumbered in 1977 as § 13-4035,
and repealed in 1995. Ariz.Laws 1995, Ch. 198, § 1;
Ariz. Laws 1977, Ch. 142, § 161.
7
affecting both judgment and sentencing in our
search for fundamental error. See, e.g,., State
v. Smith, 136 Ariz. 273, 279, 665 P.2d 995,
1001 (1983) (finding of ineffective assistance
; - ' nia Ft]
«BS m : view).
Vv rewer, 170 Ariz. 486, 493, 826 P.2d 783, 790
(1992) (emphasis added). See also State v. Noleen, 142
Ariz. 101, 104, 688 P.2d 993, 995 (1984) (pursuant to
A.R.S. § 13-4035, court considers ineffective counsel
claims based on “the entire record on appeal.”) Based
on Petitioner’s allegations contained in the record
before the appellate court, that petitioner did not
understand the plea he entered, and his trial counsel’s
failure to provide additional detail to the court
concerning this issue when asked to do so, ER 12 at p.
22, the appellate eeeses fundamental error review
included this claim.
Thus, there is no question that the appellate court
reviewed Petitioner’s claims of ineffective counsel and
unintelligent plea in the 1988 appeal. First, as we
have shown, the appellate court said it “fully reviewed
the record.” It specifically discussed the guilty plea
and the fact that Petitioner attempted to withdraw from
it because he did not understand it, but was not
permitted to do so. After stating that the trial court
determined the “change of plea was knowingly,
intelligently, and voluntarily” made, the appellate
court affirmed the conviction and sentence. ER 14 at
3.
Second, the appellate court later explained that it
had reviewed and rejected Petitioner’s claims of
ineffective counsel and improper plea in his 1988
appeal. In its decision following Petitioner’s
resentencing and postconviction proceedings, the
appellate court found:
Both [ineff :, € }
; = ; ;
i i di tot in 3 1] 5
previous appeal and his petition for post-
conviction relief.
ER 25 at 2-3. This statement is plain: the appellate
4 -
Petitioner has shown cause for his alleged
defaults, and the resulting prejudice: he entered a
plea of guilt which he did not understand.
Alternatively, Petitioner asks this Court to remand
this matter to the District Court for a hearing at
which additional facts establishing cause and
prejudice, and miscarriage of justice can be
investigated and presented.
CONCLUSION
For all these reasons, Petitioner has fairly
presented his claims to the state courts and the
District Court’s order should be reversed and the case
remanded for review of them. Alternatively, because
cnece 18 no mandatory bar preventing Petitioner from
returning to state court, this Court should hold these
proceedings in abeyance pending exhaustion of those
22
claims it finds were not fairly presented to the state
courts.
A
7)
Dated this day of December, 1998.
FREDRIC F. KAY |
FEDERAL PUBLIC DEFENDER
Denise I. Young
Assistant Federal -Public Defender
Attorneys for Petitioner/Appellant
23
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.