# Petition for Writ of Certiorari — Chadwick v. Chadwick

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2003
- **Citation:** 538 U.S. 1000

## Text

Supreme Cour, U.S.

FILED 1)
QS. 13 46 FEB 1 3 2003

HCHO CHER

In The
Supreme Court of the Anited States

¢

H. BEATTY CHADWICK,

Petitioner,

BARBARA JEAN CROWTHER CHADWICK,

Respondent.

¢

On Petition For Writ Of Certiorari
To The United States Court Of Appeals
For The Third Circuit

¢

PETITION FOR WRIT OF CERTIORARI

¢

H. BEATTY CHADWICK
P.O. Box 23

Thornton, PA 19373
610-595-2740, ext. 317

SEL ORT LI LY I ME

QUESTIONS PRESENTED

1. Whether clearly established federal law as deter-
mined by this Court renders it reasonable to conclude that
the due process clause places no limitation upon the
length of time a person may be incarcerated for civil
contempt? _

2. Whether clearly established federal law as deter-
mined by this Court renders it reasonable to conclude that
procedural due process does not demand a Sixth Amend-
ment jury trial at which the state bears an unshifting
burden of proof beyond a reasonable doubt before a person
may be incarcerated for five or more years for contempt,
regardless of whether the contempt be labeled criminal or
civil?

3. Whether a habeas corpus reviewing court should
make a de novo review of the Record where it rests its
decision on state court fact finding challenged under 28
U.S.c. § 2254(d)(2) and the District Court did not hold an
evidentiary hearing?

4. Whether and under what circumstances the
standard of review set forth in 28 U.S.C. § 2254(d)(1)
applies where the state court denies relief without expla-
nation or opinion?

5. Whether a private party has Article III-standing
to appeal the grant of a writ of habeas corpus where no
state respondent has appealed?

il

LIST OF PARTIES TO THE PROCEEDINGS
IN THE COURT BELOW

H. Beatty Chadwick,
Appellee Below
James Janecka, Warden, Delaware County Prison’

District Attorney of the County of Delaware
(Pennsylvania)

The Attorney General of the State of Pennsylvania’
Barbara Jean Crowther Chadwick,

Appellant Below.

is ahng mS et ati NS Se sierra

* Respondent in District Court, but did not file notice of appeal to
Court of Appeals and was not a party before that Court.

iil

TABLE OF CONTENTS

Page
OPINIONS BELOW. ..............csscsccsecescrecesccnscesceseeseees 1
ETT TION co veescrssnscsevevecevsessevcvsovovesenessossessseenes 1
CONSTITUTIONAL PROVISIONS AND STAT-
UTES INVOLVED. ..........cccccsccsccccccscccrsvcrsceesesseseeee 1
STATEMENT OF THE CASE. ...........::eceeeeeeeeneeeeeeees 3
REASONS FOR GRANTING THE WRIT................. 9
1. Certiorari Should Be Granted To Settle
Whether The Standard Of Review Set Forth
In 28 U.S.C. § 2254(d)(1) Can Or Should Be
Applied Where The State Court Decision At
Issue Denies Relief Without Explanation Or
OPpinion..............ssccececeeessssereceeeesssneeeeenenneeeeees 9
2. Certiorari Should Be Granted To Settle
Whether And To What Extent In Identifying
“Clearly Established Federal Law” For The
Purpose Of 28 U.S.C. § 2254(d)(1) A Habeas
Corpus Court May Look To Generalized
Statements In This Court’s Case Law As
Well As More Specific Rules...............::cesseeeees 14
3. Certiorari Should Be Granted To Settle

Whether And Under What Circumstances A
Habeas Corpus Court Is Required Under 28
U.S.C. § 2254(d)(1) To Reject A State Court's
Unreasonable Failure To Extend A Settled
Constitutional Principle To A New Setting
Where It Ought To Apply ...........:::eeeeeeeeeee reece

a Oi aii ia

iV

TABLE OF CONTENTS -— Continued
Page

4. Certiorari Should Be Granted To Settle
Whether A Habeas Corpus Reviewing Court Is
Obliged To Perform A De Novo Review Of The
Record When It Rests Its Decision On State
Court Factfinding Challenged Under 28 U.S.C.

§ 2254(d)(2) And The District Court Did Not
Hold An Evidentiary Hearing........................000 24

5. Certiorari Should Be Granted To Settle
Whether A Private Party Has Article III
Standing To Appeal In A Habeas Corpus Pro-
ceeding Under 28 U.S.C. § 2254 Where No
State Respondent Has Appealed.................... 26

PC AMEE trininiainsecsonstcevsninnbbicntnngininabiaienactions 30

ene Wee Seer Se Seek eee

ee ee eee a nae ee © ae Dee

TABLE OF AUTHORITIES
Page
CASES:
Allen v. Wright, 468 U.S. 737 (1984).........:sccceesssseeereesseeeens 28
American Airlines, Inc. v. Allied Pilots Association,

228 F.3d 574 (5th Cir. 2000)..........ccccceceeseeeeeseeeeeeeeeeeeeeees 21
Appel v. Horn, 250 F.3d 203 (3rd' Cir. 2001).......sssssssseeeee 12
Bell v. Jarvis, 236 F.3d (149 4th Cir. 2000).............2+ 10, 13
Chadwick v. Andrews, 522 U.S. 864 (1997)........::::seeeeeeeees 6
Diamond v. Charles, 476 U.S. 54 (1986) .........seeeeeees 26, 27
DiBenedetto v. Hall, 272 F.3d 1 (1st Cir. 2001)................. 13
Early v. Packer, ___ U.S. __, 123 S. Ct. 362 (BOGE). ccceses: 12
Evans v. Williams, 206 F.3d 1292 (D.C. Cir. 2000)............ 21
Everett v. Beard, 290 F.3d 500 (3rd Cir. 2002) ..............+++ 12
Foucha v. Louisiana, 504 U.S. 71 (1992)..........ceeeeeeseeeeeees 23
Friends of Earth v. Laidlaw Environmental Ser-

vices, 528 U.S. 167 (2000) ..........eseeeeseeeeeeeeeerereeeeesenes 27, 28
Gompers v. Bucks Stove & Range Co., 221 U.S. 418

CRIED Ys. cncxcccdssrsntsdncnsacensovnnrnceansismncengpenininanentaiamennee 15, 18
Greene v. Lambert, 228 F.3d 1081 (9th Cir. 2002)............. 13
Hameen v. Delaware, 212 F.3d 226 (3rd Cir. 2000)........... 12
Harris v. City of Philadelphia, 47 F.3d 1311 (8rd

Che, 1G) oeccnvecserconccesevcessovsssesacovecoccessuncncetaibasnepsunsvonnenns 21
Harris v. Stovall, 212 F.3d 940 (6th Cir. 2000)..............+++. 13
Hough v. Anderson, 272 F.3d 878 (7th Cir. 2001).............. 13

In Re Cantazaro, 663 F. Supp. 1 (D.D.C. 1985)..........00+ 17

— || _ll

vi

TABLE OF AUTHORITIES — Continued

Page
In Re E.I. DuPont — Benlate Litigation, 99 F.3d 363

CREE STR Seve vnvtinencusccstisanaenensniceiniddansenmeiaiaauibaciadianael 21
In Re Epstein, 206 F. 568 (E.D. Pa. 1913) aff’d, sub

nom. Epstein v. Steinfeld, 210 F. 236 (C.CA. 3rd

RGN ssnacikvscscaea saebakishessdsceinsaanauandereaseaeniaaaeetuaniiomateeainnsial 16
In Re Grand Jury Investigation, 600 F.2d 420 (3rd

CFA RPO ssancsnsincsaassqsiuenscunuidasateaieabeagtamanncaudseaiuieibaeats 17
Jackson v. Indiana, 406 U.S. 715 (1972) ...........ccccceeceeeeeeee D2

James v. Bowersox, 187 F.3d 866 (8th Cir. 1999) .............. 13
Kansas v. Hendricks, 521 U.S. 346 (1997)..........ccccceceeeee eee 23
Kennaugh v. Miller, 289 F.3d 36 (2nd Cir. 2002)......... 19, 24
Lambert v. Montana, 545 F.2d 87 (9th Cir. 1976) ............. 17
Linda R.S. v. Richard D., 410 U.S. 614 (1973)............ 27, 28
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)....27, 28
Maggio v. Zeitz, 333 U.S. 56 (1948)........... 15, 16, 17, 18, 22
Martin-Trigona v. Shiff, 702 F.2d 380 (2nd Cir.

FP ccnsscivisintscientincninmniaeaadaaaamaal 29
McNeil v. Director Patuxent Institution, 407 U.S.

BS CRD 00s cisnsnesa\cnccucuanedeasneanaliiad ainda 23
Muniz v. Hoffman, 422 U.S. 454 (1975) ....... ee eeeeeeeeeeeeees 21
Neil v. Puckett, 239 F.3d 683 (5th Cir. 2001)...............0000.. 13
New York State N.O.W. v. Terry, 159 F.3d 86 (2nd

RAO, BEDI oessssctsnsoninnesinnsinsissetnciiaaicanlbaiuiecmenieanannadaimaacanaleaniias 21
Norde v. Keene, 294 F.3d 401 (2nd Cir. 2002)..........00000000.. 12
O’Brien v. DuBois, 145 F.3d 16 (1st Cir. 1998)...............04 18

Oriel v. Russell, 278 U.S. 358 (1929) .......... eee 15, 16, 18

vii

TABLE OF AUTHORITIES -— Continued

Page
Ramdass v. Angelone, 530 U.S. 156 (2000) ........-.:sseeeees 24
Rudenko v. Costello, 286 F.3d 51 (2nd Cir. 2002).............. 12
Sellan v. Kuhlman, 261 F.3d 303 (2nd Cir. 2001) ............. 12
Sigety v. Abrams, 632 F.2d 969 (2nd Cir. 1980).............+++ 16
Soobzokov v. CBS, Inc., 642 F.2d 28 (2nd Cir. 1981)......... 16

Taylor v. Withrow, 288 F.3d 846 (6th Cir. 2002)....19, 24, 26
United Mine Workers v. Bagwell, 512 U.S. 821

(19O4)....0ccccccrcresvescrrscasscorcveroveneesssccevenoones 15, 18, 20, 21, 22
United States v. Lippitt, 180 F.3d 873 (7th Cir.

1999) ......ccccccccccccossscccssssscsessccccvcnsccssesssssssesoosnsssosensssesnsoees 16
VanTran v. Lindsey, 212 F.3d 1143 (9th Cir. 2000) ........... 18
Washington v. Schriver, 255 F.3d 45 (2nd Cir. 2001) ........ 11
Weeks v. Angelone, 528 U.S. 225 (2000)..........sseeseseeees 9,10
Weeks v. Angelone, 176 F.3d 249 (4th Cir. 2000)............+++. 10

Williams v. Taylor, 529 U.S. 362 (2000) .... 11, 18, 19, 23, 24
Wright v. Department of Corrections, 278 F.3d 1245

(11th Cir, 2002)..........:csssessseseessresseeesensesereeserseeneneesnasenes 13
Young v. U.S. ex rel. Vuitton et fils, S.A., 481 U.S.

TET (1987). ......ccccccessscssscccssscsecesssseeeeensseesssssnsssesscenseessnes 27
Zadvydas v. Davis, 533 U.S. 678 (2001)... eeerereeeereees 23

CONSTITUTIONAL PROVISIONS:
United States Constitution, Amendment Fourteen....2, 6, 7

Vili
TABLE OF AUTHORITIES — Continued

STATUTES:
ey IID cicincintcatcinntapnenainasinenniadanet ieee ert, 7
SEE EERE MITT cricconetinchchindadelaitebaistinlebiaadionuaentisinesnell passim

1

PETITION FOR A WRIT OF CERTIORARI

H. Beatty Chadwick, the Petitioner, respectfully prays
that a Writ of Certiorari issue to review the judgment of
the United States Court of Appeals for the Third Circuit,
entered in the above-entitled case on August 20, 2002, a
petition for rehearing having been denied on December 4,
2002.

+

OPINIONS BELOW

The December 4, 2002 opinion of the United States
Court of Appeals for the Third Circuit, whose judgment is
herein sought to be reviewed, is reported at 312 F.3d 597
and is attached as Appendix A. The prior opinion of the
United States District Court for the Eastern District of
Pennsylvania entered January 4, 2002 is unreported and
is attached as Appendix B.

¢

JURISDICTION

Jurisdiction is conferred upon this Court by 28 U.S.C.
§ 1254(1).

*
v

CONSTITUTIONAL PROVISIONS
AND STATUTES INVOLVED

This case involves the following provisions of the
United States Constitution:

Amendment Six:

In all criminal prosecutions, the accused shall
enjoy the right to a speedy and public trial, by an

a i ee
—_-_-_--_ + ae

2

impartial jury of the State and district wherein
the crime shall have been committed, which dis-
trict shall have been previously ascertained by
law, and to be informed of the nature and cause of
the accusation; to be confronted with the wit-
nesses against him; to have compulsory process
for obtaining witnesses in his favor, and to have
the Assistance of Counsel for his defense.

Amendment Fourteen, Section 1:

All persons born or naturalized in the United
States, and subject to the jurisdiction of the
United States, are citizens of the United States
and of the State wherein they reside. No State
shall make or enforce any law which shall
abridge the privileges or immunities of citizens of
the United States; nor shall any State deprive
any person of life, liberty, or property, without
due process of law; nor deny to any person within
its jurisdiction the equal protection of the laws.

Also involved are the provisions of 28 U.S.C. § 2254(d):

(d) An application for a writ of habeas corpus
on behalf of a person in custody pursuant to the
judgment of a State court shall not be granted
with respect to any claim that was adjudicated
on the merits in State court proceedings unless
the adjudication of the claim —

(1) resulted in a decision that was contrary
to, or involved an unreasonable applica-
tion of clearly established Federal law, as
determined by the Supreme Court of the
United States; or

(2) resulted in a decision that was based on
an unreasonable determination of the

3

facts in light of the evidence presented in
the State court proceeding.

*

STATEMENT OF THE CASE

Petitioner H. Beatty Chadwick has been imprisoned
since April 5, 1995 for “civil” contempt of an order that he
deposit $2.5 million in an account controlled by the Dela-
ware County (Pennsylvania) Court of Common Pleas, for
eventual equitable distribution in a divorce action.

On January 3, 2002 the United States District Court
for the Eastern District of Pennsylvania issued a Writ of
Habeas Corpus and ordered Mr. Chadwick released from
<onfinement. The District Court stayed its Order for 30
days to allow any party respondent to appeal. Barbara
Chadwick, Mr. Chadwick’s former wife and an Intervenor
in the District Court, filed an appeal on January 15, 2002.
No notice was filed on behalf of any of the three original
respondents — the Warden, the District Attorney (who had
been dismissed as a party respondent at his request on
April 23, 2001) or the state Attorney General. The United
States Court of Appeals for the Third Circuit granted a
stay pending appeal at Mrs. Chadwick’s request. On
August 20, 2002 the Court of Appeals reversed the judg-
ment of the District Court which had granted the Writ. Mr.
Chadwick’s request for rehearing was denied on December
4, 2002 (Chief Judge Becker would have granted rehear-
ing). The Court of Appeals did, however, file an amended
opinion, which is attached as Appendix A.

Mr. Chadwick’s imprisonment arises from an order of
the Court of Common Pleas of Delaware County, Pennsyl-
vania in a divorce action commenced on November 23,
1992. On July 22, 1994, at Mrs. Chadwick’s request, the

4

state trial court (Joseph Labrum, J.) directed Mr.
Chadwick to pay $2,500,000 in cash in.v a bank account
under the control of the state court, presumably so the
money would be available for distribution in the divorce
proceeding, although no distribution proceeding had been
had as of that or the present date.’ This sum was the
major part of a $2,502,000 investment made by Mr.
Chadwick nearly eighteen months before the state court
order under the terms of a joint venture agreement be-
tween “Ar. Chadwick and Maison Blanche, Limited, a
Gibraltar corporation, entered into in August, 1990. Mr.
Chadwick maintains that he possesses the investment
interest, but was then and still is unable to reclaim the
cash.

On August 29, 1994, based upon Mrs. Chadwick’s
petition, the trial court adjudicated Mr. Chadwick in
contempt. No sanction was imposed. On October 18, 1994,
the trial court, on it own motion, notified Mr. Chadwick
that a hearing on a “petition for contempt” would be held
on October 31, 1994. No such petition was filed however,
and no additional information was given as to the purpose
of the proposed hearing. On October 31, 1994, following a
proceeding in court at which Mr. Chadwick was not
present, the trial court again adjudicated Mr. Chadwick in
contempt of its July 22, 1994 order. By order dated No-
vember 2, 1994, the court directed that Mr. Chadwick be
arrested and imprisoned indefinitely, “until a further
hearing is held.” No condition was stated upon the per-
formance of which Mr. Chadwick would be released. It is
under this order that Mr. Chadwick remains incarcerated.

+ The parties were granted a bifurcated divorce on November 14,
2001, but property distribution issues remain to be determined.

5

No trial was held and no trial by jury was offered. The
record is devoid of evidence that Mr. Chadwick then had
the cash resources, or any resources readily convertible
into cash, that could satisfy the trial court’s payment
order. No findings of fact or conclusions of law were filed.
Mr. Chadwick appealed both the order of July 22, 1994
and the order of November 2, 1994 which directed his
imprisonment, but the state Superior Court, at the request
of Mrs. Chadwick, quashed these appeals as the orders
were deemed interlocutory.

On March 24, 1995 Mr. Chadwick filed a petition to
vacate the sanction of imprisonment in the November 2,
1994 order. A hearing on this petition was held on April 20,
1995. In the meantime, on April 5, 1995, Mr. Chadwick
was arrested and imprisoned. Mr. Chadwick was not
permitted to be present at the April 20, 1995 hearing, and
the petition to vacate was denied.

| Thereafter, on June 21, 1995 Mr. Chadwick filed the
first of seven habeas corpus petitions with the state trial
court. Mrs. Chadwick was permitted, over objection, to
participate in these proceedings. Each of these (except the
last) was heard by Judge Battle rather than Judge La-
brum, and each was denied. No evidence was presented as
to Mr. Chadwick’s financial resources or his ability to
make the payment that the court demanded, apart from
Mr. Chadwick’s statement of inability to do so. However, in
connection with appeals of certain of those rulings Judge
Battle wrote opinions summarizing as “facts” the un-
proven allegations by Mrs. Chadwick that Mr. Chadwick
continued to control the cash paid to Maison Blanche,
Limited, including allegations that monies had been
deposited by or for Mr. Chadwick in bank accounts in the
United States, Switzerland and Panama. Not only had
Judge Battle heard no evidence on any of these “facts,”

6

there was no substantive support for them in the eviden-
tiary record.

When the state trial court denied habeas corpus relief
on October 5, 1995, after Mr. Chadwick had been impris-
oned for six months, he filed an appeal with the state
Superior Court, arguing that his imprisonment was
unlawful on various state law grounds and that his Four-
teenth Amendment rights to due process and equal protec-
tion had been infringed. The Superior Court did not
discuss the federal Constitutional grounds but affirmed
the trial court’s orders on August 22, 1996, applying a
standard of review that accepted Judge Battle’s conclu-
sions, including the unsupported “facts” as to Mr.
Chadwick's ability to comply, in the absence of proof of
“bias, prejudice or ill will.” Mr. Chadwick petitioned the
state Supreme Court for allowance of appeal based upon
errors in the burden of proof and other state law grounds
and based upon the failure of the Superior Court to ad-
dress the federal Constitutional issues raised there. The
state Supreme Court denied discretionary review on April
8, 1997. This Court denied certiorari. Chadwick v. An-
drews, 522 U.S. 864 (1997).

While this appeal was pending, Mr. Chadwick filed a
new petition for writ of habeas corpus, his sixth, with the
state trial court. No additional evidence as to Mr.
Chadwick’s ability to comply apart from his own dis-
claimer was presented. The trial court denied the petition
in June, 1996. This denial was appealed to the state
Superior Court which again affirmed the trial court’s
denial on April 23, 1997, declining to recognize a due
process rule that lengthy “civil” contempt could become
“criminal” in the Constitutional sense because the state
Supreme Court had never ruled on the permissible length
of imprisonment for a civil contempt. The Superior Court

RA eee ee aes |

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also deferred as before to the trial court’s conclusions as to
ability to comply and the continuing coercive effect of the
imprisonment. Mr. Chadwick did not file a petition for
allowance of appeal with the state Supreme Court inas-
much as that court had denied a petition on similar
grounds only fifteen days previously.

Mr. Chadwick then sought habeas corpus relief in the
U.S. District Court for the Eastern District of Pennsy]l-
vania. On April 30, 1998 that court denied Mr. Chadwick's
petition for lack of exhaustion of state remedies. Under the
circumstances, the District Court suggested that the
federal Constitutional claims again be presented to the
state Supreme Court and indicated several means by
which that could be accomplished, including a petition for
writ of habeas corpus under the state Supreme Court’s
original jurisdiction provided by statute. Mr. Chadwick
filed such a petition on September 27, 1999, setting forth
nine violations of due process rights safeguarded by the
Fourteenth Amendment. He also filed an application for
permission to file the petition as required by the state
Rules of Appellate Procedure. Mrs. Chadwick sought to
intervene and filed a proffered Answer. On February 8,
2000 the state Supreme Court granted Mr. Chadwick’s
application for permission to file the petition and granted
Mrs. Chadwick’s motion to intervene and to file an An-
swer. The state Supreme Court then denied the habeas
corpus petition without explanation or opinion.

Mr. Chadwick filed the Petition for Writ of Habeas
Corpus at issue in this case under the provisions of 28
U.S.C. § 2254(a) on March 2, 2000, asserting the same
nine federal Constitutional claims presented in the peti-
tion which had just been denied by the state Supreme
Court, that he had been denied due process of law: (i) by
imprisonment for noncompliance with an order with which

8

he was unable to comply; (ii) since he was not afforded a
jury trial and other procedural rights; (iii) by the summary
nature of the proceedings which adjudicated his impris-
onment; (iv) by imposing imprisonment which has become
punitive; (v) by imprisonment for the nonpayment of
money; (vi) by indefinite imprisonment in a civil proceed-
ing; (vii) since the order of imprisonment fails to contain a
condition for his release; (viii) by imprisonment for the
alleged violation of an order the Court lacked jurisdiction
to issue; and (ix) because he was not afforded a prompt
appeal of the state contempt and imprisonment order. The
District Attorney of Delaware County filed a response
which included the admission that Mr. Chadwick’s incar-
ceration “now borders on the extreme.” Mrs. Chadwick
was permitted to intervene and filed a motion to dismiss
based upon an alleged failure to exhaust state remedies.
No evidentiary hearing was held. On December 11, 2000, a
Magistrate Judge issued a report and recommendation
which found that exhaustion of state remedies had oc-
curred, but recommended dismissal of the petition on the
merits, and Mr. Chadwick filed exceptions.

After oral argument the District Court on January 3,
2002 sustained Mr. Chadwick’s exceptions to the report of
the Magistrate Judge and granted the petition for writ of
habeas corpus on the ground that his imprisonment had
become impermissibly punitive and thus a violation of his
due process rights. Mrs. Chadwick appealed to the United
States Court of Appeals for the Third Circuit; none of the
Respondents did so. Thereafter, the Attorney General of
Pennsylvania filed an amicus brief, although he had not
participated in the proceedings before the District Court
and could have, but did not, file a notice of appeal. The
Court of Appeals on August 20, 2002 reversed the judg-
ment of the District Court because, after applying the
standards set forth in 28 U.S.C. § 2254(d)(1), it concluded

2

that this Court had never held that the due process clause
limits the length of time a person may be confined for civil
contempt, and therefore the refusal of the state court to
release Mr. Chadwick notwithstanding his lengthy impris-
onment would not be unreasonable.

¢

REASONS FOR GRANTING THE WRIT

The judgment of the United States Court of Appeals
for the Third Circuit should be reviewed by this Court
because the Court of Appeals has decided certain issues in
this case which implicate important questions of federal
law in respect to the application and interpretation of 28
U.S.C. § 2254(d) which have not been but should be settled
by this Court.

1. CERTIORARI SHOULD BE GRANTED TO SET-
TLE WHETHER THE STANDARD OF REVIEW
SET FORTH IN 28 U.S.C. § 2254(d)(1) CAN OR
SHOULD BE APPLIED WHERE THE STATE
COURT DECISION AT ISSUE DENIES RELIEF
WITHOUT EXPLANATION OR OPINION.

In this case the decision of the Pennsylvania Supreme
Court at issue (Appendix C) denied Mr. Chadwick’s claims
for relief without any reasons or explanation or any
indication that it had addressed the federal issues, al-
though nine separate grounds, had been urged before that
court. The Court of Appeals held (Appendix A, p.12) that
the § 2254(d)(1) standard of review applied to Mr.
Chadwick’s habeas corpus petition.

The Court of Appeals concluded (Appendix A, pp.14-
15) that its holding was required by the decision of this
Court in Weeks v. Angelone, 528 U.S. 225 (2000). The issue

10

of the proper standard of review, however, was not impli-
cated in Weeks. This Court’s entire pertinent discussion in
Weeks, after analyzing extensively what it considered to be
the correct disposition of the petitioner’s claims, was in
one conclusory paragraph ending “for the reasons stated
above, it follows a fortiori that the adjudication of the
Supreme Court of Virginia affirming Petitioner’s convic-
tion and sentence neither was ‘contrary to’ nor involved an
‘unreasonable application of’ any of our decisions.” Id. at
237. In other words, having already concluded that the
state court’s rejection of the petitioner’s claims was correct,
it necessarily followed that the Petitioner could not pre-
vail. In the instant case, the Court of Appeals was per-
suaded (Appendix A, p.14) that the Fourth Circuit in
Weeks had stated in its opinion that § 2254(d)(1) applied
even though the state court had not given reasons for the
decision, Weeks v. Angelone, 176 F.3d 249, 259 (4th Cir.
2000)’, and that this Court had affirmed the Fourth
Circuit. It reads too much into this Court’s opinion in
Weeks, however, to conclude that this Court in that deci-
sion interpreted § 2254(d)(1) as to apply to a state court
decision which was only a bare dismissal, without expla-
_.nation. Even the Fourth Circuit, from which Weeks arose,
concluded in a subsequent decision that this Court had not
reached in Weeks the issue of the application of
§ 2254(d)(1) to summary state court dispositions. Bell v.
Jarvis, 236 F.3d 149, 161 n.8 (4th Cir. 2000).

* The standard of review was not at issue in the lower court either,
as the parties in Weeks agreed that § 2254(d)(1) was applicable. Jd. at
257. Moreover, although the state Supreme Court did not give reasons
for its decision it did issue an opinion stating that it had considered all
of the arguments presented and concluded that none had any merit. Jd.
at 259.

11

The statute itself is ambiguous and substantial
arguments favor the view that § 2254(d)(1) cannot effec-
tively be applied where the state court decision at issue
denied relief, without explanation. By its terms
§ 2254(d)(1) applies only where the state court has “adju-
dicated” the federal claims “on the merits,” so that, at the
very least, the habeas corpus court muse be able to ascer-
tain from the state court decision that these conditions
have been fulfilled. Moreover, the subsequent analysis ~
required by the Section would be very difficult if not
impossible to perform without an indication of the relevant
federal precedents considered by the state court. In order
for the federal habeas corpus court to determine whether a
given state court decision was “contrary to” or an “unrea-
sonable application of” federal law, it would be necessary
to “guess” the federal law which formed the basis of the
state court decision unless that court provided the prece-
dents it considered. Indeed, the three opinions in Williams
v. Taylor, 529 U.S. 362 (2000), where this Court first
considered the standards to be applied by a habeas corpus
court in compliance with § 2254(d)(1), each extensively
analyzed the reasoning employed by the state court and
did so in ways that would have been impossible if the state
court had not identified the federal precedents under
which it acted. Id. at 394, 395, 397-98 (opinion of Stevens,
J.); Id. at 414-16 (opinion of O’Connor, J.) and Id. at 417-
19 (opinion of Rehnquist, C.J.). See discussion in Washing-
ton v. Schriver, 255 F.3d 45, 53-54, 64 (2nd Cir. 2001). If
Williams v. Taylor is to be used as a paradigm, at least
some explication of the basis for the state court’s decision
would appear to be a condition for the application of the
§ 2254(d\(1) standard of review. In a recent per curiam
decision the Court held that application of the “contrary
to” clause of § 2254(d)(1) should not depend upon the
citation of federal law by the state court (the state court

12

had in that case issued an opinion) “so long as neither the
reasoning nor the result of the state court decision contra-
dicts them,” thus suggesting that some reasoning by the
state court is necessary. Early v. Packer, ___ U.S. ___, 123
S.C. 362, 365 (2002).

The various Circuits have reflected a variety of
approaches to the question. The Third Circuit had decided
that the § 2254(d)(1) standard of review did not apply
where the state court opinion failed to demonstrate that
the federal claims had been considered. Everett v. Beard,
290 F.3d 500, 507-08 (3rd Cir. 2002); Appel v. Horn, 250
F.3d 203, 209-12 (3rd Cir. 2001); and Hameen v. Delaware,
212 F.3d 226, 248 (3rd Cir. 2000). The opinion in the
instant case distinguished those decisions because in the
instant case the state Supreme Court did not render an
opinion at all. (Appendix A, p.15). This appears to be a
distinction without logical support, since if a federal
habeas corpus court cannot conclude that a federal issue
has been addressed where the state court renders an
opinion but does not mention the federal issue, it should
be at least equally difficult to reach such a conclusion in
the absence of any opinion whatsoever.

The Second Circuit has held that § 2254(d)(1) applies
to summary state court decisions provided that the state
court made an adjudication of the federal issues on the
merits. Sellan v. Kuhlman, 261 F.3d 303, 312 (2nd Cir.
2001). Subsequent decisions by that Circuit, however, have
held that § 2254(d)(1) did not apply where the habeas
corpus court could not tell from the state court decision
that it was on the merits. Rudenko v. Costello, 286 F.3d 51,
69 (2nd Cir. 2002) or if the federal issue was not men-
tioned by the state court. Norde v. Keene, 294 F.3d 401,
410 (2nd Cir. 2002).

13

The Fourth, Sixth and Ninth Circuits have applied
§ 2254(d)(1) to cases where there was a summary state
court decision, but in such cases have required the habeas
corpus court to make an independent review of the state
court record and the applicable law. Bell v. Jarvis, 236
F.3d 149, 158 (4th Cir. 2000); Harris v. Stovall, 212 F.3d
940, 943 (6th Cir. 2000); Greene v. Lambert, 288 F.3d 1081,
1089 (9th Cir. 2002). The First, Fifth, Seventh and Elev-
enth Circuits have adopted the view that the habeas
corpus court should focus on the conclusions of the state
court and that while the state court’s reasoning would be
helpful, it was not essential to the application of
§ 2254(d)(1). The habeas corpus court must be convinced,
however that the state court had addressed the federal
issues. DiBenedetto v. Hall, 272 F.3d 1, 6 (1st Cir. 2001);
Neil v. Puckett, 239 F.3d 683, 696 (5th Cir. 2001); Hough v.
Anderson, 272 F.3d 878, 897 (7th Cir. 2001); Wright v.
Department of Corrections, 278 F.3d 1245, 1254 (11th Cir.
2002). The Eighth Circuit has applied § 2254(d)(1) to cases
where the state court made a summary disposition. James
v. Bowersox, 187 F.3d 866, 869 (8th Cir. 1999).

This diversity of analytical approach suggests the
desirability of guidance from this Court. It is particularly
troubling that a habeas corpus court would be placed in
the position of “guessing” the reasoning of a state court or
even whether a federal issue had been addressed at all.
Such a method would cause the applicability of
§ 2254(d1) and any subsequent analysis under that
section if it were deemed applicable, to be subject to the
caprice of an individual judge. It may be that in some
cases the federal issue is readily apparent from the state
court record and it would have been impossible for the
state court to decide the case without having addressed it.
In the instant case, however, with multiple grounds

14

having been presented to the state court, a state court
dismissal, without more, makes it impossible to know if all
of the federal issues had been addressed or adjudicated
within the meaning of § 2254(d)(1).

2. CERTIORARI SHOULD BE GRANTED TO
SETTLE WHETHER AND TO WHAT EXTENT IN
IDENTIFYING “CLEARLY ESTABLISHED FED-
ERAL LAW” FOR THE PURPOSE OF 28 U.S.C.
§ 2254(d)(1) A HABEAS CORPUS COURT MAY
LOOK TO GENERALIZED STATEMENTS IN
THIS COURT’S CASE LAW AS WELL AS MORE
SPECIFIC RULES.

If § 2254(d)(1) applies, a habeas corpus court must
determine whether a given state court decision is “con-
trary to” or an “unreasonable application of” “clearly
established federal law” as determined by this Court.

The Court of Appeals held that “the Supreme Court
has never endorsed the proposition that confinement for
civil contempt must cease when there is no ‘substantial
likelihood of compliance.’” (Appendix A, p.25). Conse-
quently, the Court of Appeals reversed the District Court
judgment which was based upon a broader view of this
Court’s case law. The District Court concluded that such a
proposition was indeed consistent with this Court’s juris-
prudence. It therefore determined that the continuation of
Mr. Chadwick’s civil contempt confinement after seven
years (or five years, as it was at the date of the state court
decision) could no longer be coercive and thus was a
violation of the due process clause, and it was unreason-
able for the state court to conclude otherwise. (Appendix
B).

15

The District Court relied upon this Court’s early
leading case dealing with contempt imprisonment, Gompers
v. Bucks Stove & Range Co., 221 U.S. 418, 442-53 (1911)
where a 12-month sentence imposed in a civil contempt
proceeding for violation of a labor injunction was held to
have no coercive force and therefore, was punitive and could
not be imposed without affording criminal due process
rights. More recently, in United Mine Workers v. Bagwell,
512 U.S. 821 (1994) the Court reaffirmed that punitive
sanctions are impermissible in civil contempt proceedings.
From these cases, the District Court concluded that civil
confinement fails to comport with the due process clause
when that confinement ceases to be coercive.

The District Court then looked to Maggio v. Zeitz, 333
U.S. 56 (1948) for the proposition that civil contempt
ceases to be coercive and becomes punitive after a reason-
able period. In Maggio, where a bankrupt was jailed for
contempt because of noncompliance with a turnover order,
the opinion by Justice Jackson for eight Justices recog-
nized that a time limitation must be applicable to civil
confinement for contempt:

“It is everywhere admitted that even if he is
committed he will not be held in jail indefinitely
if he does not comply. His denial of possession is
given credit after demonstration that a period in
prison does not produce the goods.” Id. at 76.

Justice Frankfurter, while dissenting from the res judicata
holding, nevertheless agreed that “the District Court has
power to discharge a contemnor when confinement has
become futile, or release may be had through the use of
habeas corpus ... .” Jd. at 90. In discussing in Maggio the
procedural and substantive issues which arose in cases
like this, Justice Jackson relied principally upon the
unanimous opinion written by Chief Justice Taft in Oriel

ne

16

v. Russell, 278 U.S. 358 (1929) where the Court expressly
analogized the bankruptcy turnover cases to “contempt
cases where, under a decree for alimony, it is necessary to
resort to coercive measures to secure compliance, and the
issue of fact arises as to the ability of the contemnor to pay
what is owing.” Id. at 364-65. Maggio, 333 U.S. at 72,
repeated with express approval the following passage from
the Court’s opinion in Oriel:

“In the pending case, or in any other, the
court may believe the .. . assertion that he is not
now in possession or control of the money... ,
and in that event the civil inquiry is at an end;
but it is also true that the assertion may not be
believed, and the bankrupt may therefore be...
restrained of his liberty. ... I have known a brief
confinement to produce the money promptly, thus
justifying the court’s incredulity, and I have also
known it to fail. Where it has failed, and where a
reasonable interval of time has supplied the pre-
vious defect in the evidence, and has made suffi-
ciently certain what was doubtful before, namely
the bankrupt’s inability to obey the order, he has
always been released, and I need hardly say that
he would always have the right to be released
.... (Emphasis added).

Oriel, 278 U.S. at 365, quoting In Re Epstein, 206 F. 568,
569-70 (E.D. Pa. 1913), aff’d, sub nom. Epstein v. Stein-
feld, 210 F. 236 (CCA 3d 1914)._

This principle that a civil contemnor must be released
after a reasonabie period of confinement does not produce
compliance has long been recognized by the lower federal
courts as a fundamental due process principle with solid
roots in decisions of this Court: United States v. Lippitt,
180 F.3d 873, 876-79 (7th Cir. 1999); Soobzokov v. CBS,
Inc., 642 F.2d 28, 31 (2nd Cir. 1981); Sigety v. Abrams, 632

17

F2d 969, 975, n.6 (2nd Cir. 1980); In Re Grand Jury
Investigation, 600 F.2d 420, 424-25 (3rd Cir. 1979); Lam-
bert v. Montana, 545 F.2d 87, 89-91 (9th Cir. 1976); In Re
Cantazaro, 663 F. Supp. 1 (D.D.C. 1985).

The Court of Appeals recognized that Maggio requires
some reasonable limitation upon civil confinement, but
concluded that the reasonable limitation would not apply
in the instant case where it is presumed that the contem-
nor has the ability to comply’ (Appendix A, p.23). That
distinction, however, is a misstatement of Maggio. The
prohibition against unlimited civil confinement for con-
tempt discussed in that decision is not dependent on an
ability to comply, but exists notwithstanding such ability.
Prior to imposing imprisonment for civil contempt Maggio
requires that the fact finding judge address a twofold
question: “Whether or not there is actually a present
ability to comply and whether failure to do so constitutes a
deliberate defiance which a jail term will break.” Id. 333
U.S. at 76. After some period of confinement due process
requires that those questions be reconsidered. Contempt
‘may not be adjudged in the first place unless the court is
convinced that the contemnor has the ability to comply
with the order as to which contempt is sought. Maggio, Id.
After a reasonable period of fruitless coercive confinement
the law ceases trying in the civil context to distinguish
inability to comply from adamant refusal and presumes an
inability to comply. This doctrine thus recognizes that
after the passage of time there is a greater risk that the
court has mistaken true inability for mere willfulness and

* Mr. Chadwick strongly contests the correctness of and record
support for that presumption, which arises from the state court fact
finding he challenged in his Petition. See-Reason 4 below.

18

thus the greater risk of wrongful and/or excessive impris- .
onment.

The Court of Appeals concluded that there was “no
federal constitutional bar to Mr. Chadwick’s indefinite
confinement” (Appendix A, p.26) by the state court because
it found no decision of this Court which specifically estab-
lished a temporal limitation on civil contempt confine-
ment. By narrowing its search for “clearly established
federal law as determined by the Supreme Court” to rules
which covered the specific case at hand, the Court of
Appeals effectively held that the due process clause places
no limitation on the length of time a person may be con-
fined for civil contempt. In view of the principles enunci-
ated in Oriel, Gompers, Maggio and Bagwell, such a result
is unsupportable. The Court of Appeals’ search for specific-
ity and its rejection of this Court’s boarder jurisprudence
in an effort to satisfy § 2254(d)(1) led it into the error that
this Court warned against in Williams: that a “state
court’s incorrect legal determination has [never] been
allowed to stand because it was reasonable.” 529 U.S. at
411.

Several Circuits have begun to struggle with the
question of how to identify the “clearly established federal
law” for the purpose of § 2254(d)(1). The First Circuit has
recognized that “frequently Supreme Court holdings are
general in that they erect a framework specifically in-
tended for application to variant factual situations.”
O’Brien v. DuBois, 145 F.3d 16, 25 (1st Cir. 1998). Simi-
larly, the Ninth Circuit concluded that the Supreme Court
need not have addressed the identical factual circum-
stances. VanTran v. Lindsey, 212 F.3d 1143, 1154 (9th Cir.
2000). Indeed to insist that it should, would deprive the
“unreasonable application” clause of significance, a result

19

which Williams proscribed. 529 U.S. at 404. The Second
Circuit was required in a case concerning the admissibility
of identification evidence to consider the application of
both general due process precedents and a “bright line”
Rule. It concluded that both constituted clearly estab-
lished federal law for the purpose of § 2254(d)(1). Ken-
naugh v. Miller, 289 F.3d 36, 42-43 (2nd Cir. 2002). The
Sixth Circuit, faced with a case concerning the denial of a
jury instruction on self defense, was unable to identify a
Supreme Court case which enunciated the circumstances
-under which such an instruction should be given. It
concluded, nevertheless, that under this Court’s general
due process case law the instruction at issue was required,
declaring that clearly established federal law “also clearly
includes legal principles and standards enunciated in the
[Supreme] Court’s decisions.” Taylor v. Withrow, 268 F.3d
846, 850-51 (6th Cir. 2002). Judge Boggs, however, dis-
agreed and in his concurring opinion expressed the view
that the Supreme Court must have expressly stated a rule
in order for a habeas corpus court to apply it under
§ 2254(d)(1). Id. at 854. |

The Court of Appeals in the instant case appears to
have adopted the view of Judge Boggs in Taylor. Justice
O’Connor, in her concurring opinion in Williams reminded
that “We have always held that federal courts, even on
habeas, have an independent obligation to say what the
law is.” 529 U.S. at 411. Although § 2254(d)(1) limits the
source of law to this Court’s jurisprudence, a too narrow
focus in identify'ng that law will cause habeas corpus
courts to make an erroneous statement of the law and
thereby, as in the instant case, reach the incorrect result.

20

3. CERTIORARI SHOULD BE GRANTED TO
SETTLE WHETHER AND UNDER WHAT CIR-
CUMSTANCES A HABEAS CORPUS COURT IS
REQUIRED UNDER 28 U.S.C. § 2254(d)(1) TO
REJECT A STATE COURT’S UNREASONABLE
FAILURE TO EXTEND A SETTLED CONSTI-
TUTIONAL PRINCIPLE TO A NEW SETTING
WHERE IT OUGHT TO APPLY.

Mr. Chadwick urged the courts below to find that the
state court unreasonably failed to extend the holding of
this Court in United Mine Workers ». Bagwell, 512 U.S.
821 (1994) to his case. In Bagwell, where the state court
imposed what it characterized as a civil contempt fine of
$52 millior for violation of a labor injunciion, this Court
held that the contemnor was entitled to a jury trial and
the other rights of a criminal accused berause of the
seriousness of the sanction which caused that penalty to
be punitive in nature. The Court reasoned that the possi-
bility that a serious sanction could be imposed and the
need to decide a material fact issue required an impartial
fact finder — a jury as opposed to the offended trial judge —
and criminal law protections. The Court was concerned
that “civil contempt proceedings leave the offended judge
solely responsible for identifying, prosecuting, adjudicat-
ing and sanctioning the contemptuous conduct.” Jd. at 881,
and as Justice Scalia pointed out in his concurring opin-
ion, “That one and the same person should be able to make
the rule, to adjudicate its violation and to assess its
penalty is out of accord with our usual notions of separa-
tion of powers.” Id. at 840. Mr. Chadwick argued that the
Bagwell holding should have been extended to the serious
imprisonment sanction involved in the instant case and
that he shouid have been afforded a jury trial and atten-
dant criminal law protections on the critical issue of his
ability to comply with the state court order.

21

Although Bagwell itself involved a serious fine, the
opinion strongly suggests that the holding would apply
equally where the sanction imposed is a serious impris-
onment. In fact, as part of the discussion as to what
constitutes a serious sanction, the opinion noted, Jd. 512
U.S. at 837, n.5, the decision in Muniz v. Hoffman, 422
U.S. 454 (1975) for the proposition that an offense is
“petty” if it involves imprisonment of not more than six
months or a fine of $5,000 or less. The rationale for the
heightened due process requirements in Bagwell also
would apply with equal force regardless of whether the
contempt is labeled civil or criminal. The “elusive distinc-
tion” (Id. 512 U.S. at 830) between criminal and civil
contempt which Bagwell tried to erase where a serious
sanction was involved frequently continues to be the basis
on which lower courts determine what process is due.* As
one court stated, “It is not surprising that District Courts
around the country, reluctant to surrender part of their
power to coerce obedience to their decrees, have resisted
the logic of Bagwell.” Evans v. Williams, 206 F.3d 1292,
1297 (D.C. Cir. 2000). Thus, an additional reason to grant
certiorari in this case is to settle that Bagwell did not
intend to distinguish between civil and criminal contempt
where a serious sanction was at issue.

‘ See Harris v. City of Philadelphia, 47 F.3d 1311, 1329 (3rd Cir.
1995) (criminal rights would apply in- civil contempt only if sanction
was unconditional); In Re E.I. DuPont, Benlate Litigation, 99 F.3d 363,
368-69 (11th Cir. 1996) (criminal rights applied only because purpose of
sanction was deemed non-coercive); New York State N.O.W. v. Terry, 159
F.3d 86, 93-94 (2nd Cir. 1998) (criminal rights attached only because no
condition was stated); American Airlines Inc. v. Allied Pilots Assn., 228
F.3d 574, 583 (5th Cir. 2000) (criminal rights would not apply in civil
contempt).

22

The Court of Appeals “assumed the validity of the
principle of unreasonable failure to extend” (Appendix A,
p.15-16, n.8) but did not discuss Mr. Chadwick’s argument
that the Bagwell holding should have been extended to his
case. Instead, its opinion relied upon Bagwell for a propo-
sition the Bagwell opinion does not support — that this
Court in Bagwell endorsed an unlimited right to confine a
contemnor for civil contempt. (Appendix A, p.17). In
support of this argument, the Court of Appeals cites a
sentence in the Bagwell opinion, 512 U.S. at 528, which
states: “The paradigmatic coercive, civil contempt sanc-
tion, as set forth in Gompers, involves confining a contem-
nor indefinitely until he complies with an affirmative
command....” This sentence appears in the introduction
to the opinion where the Court was simply describing the
historic differences between civil and criminal contempt.
Nothing in Bagwell suggests that use of the term “indefi-
nitely” means “permanently” and without other recourse.
Nor is there any suggestion that Bagwell intended to
overrule the principle which limited confinement for civil
contempt that already was well established when it was
reaffirmed in Maggio. The extent of confinement which
lawfully could be imposed as a sanction for contempt was
not even implicated in Bagwell. The issues that the Court
considered in Bagwell and which were reflected in its
holding concerned the process that was due to contemnors
in jeopardy of serious sanctions — process that the Court of
Appeals declined to extend to Mr. Chadwick.

Bagwell is part of a large body of due process cases
decided by this Court in the last thirty years on which Mr.
Chadwick relied for the proposition that he had an enti-
tlement to due process protections not afforded. A number
of these cases concerned the protections which should
apply to the civil confinement of the mentally ill, a circum-
stance closely analogous to civil contempt. In Jackson v.

23

Indiana, 406 U.S. 715, 738 (1972) the Court held that due
process requires a reasonable relation between the nature
and duration of the commitment and the purpose of the
commitment. McNeil v. Director, Patuxent Institution, 407
U.S. 245, 250-51 (1972) found that an indefinite confine-
ment following the expiration of a criminal sentence on
mental health grounds would be a due process violation.
In Foucha v. Louisiana, 504 U.S. 71, 80 (1972) the Court
required proof of dangerousness before a mentally ill
person could be civilly confined. Subsequently, Kansas uv.
Hendricks, 521 U.S. 346, 356 (1997) noted limitations
which must be imposed on civil confinement under a state
sexual predator statute.

In another realm related to civil confinement the
Court recently construed a statute governing the deporta-
tion of aliens to limit a post-removal order of civil deten-
tion to a period reasonably necessary to bring about the
alien’s removal, generally no more than six months.
Zadvydas v. Davis, 533 U.S. 678, 701 (2001). In reaching
that decision the Court asserted that “government deten-
tion violates that [due process] Clause unless the deten-
tion is ordered in ... certain special and narrow non-
punitive circumstances . . . where a special justification ...
outweighs the individual’s constitutionally protected
interest in avoiding physical restraint.” Id., at 690 (inter-
nal citations and quotations omitted). Although urged to
do so, the Court of Appeals did not extend. this solid line of
precedent to the circumstances of this case.

Justice O’Connor’s opinion for the Court in Williams
requires a habeas corpus court to conduct an analysis
under both the “contrary to” and “unreasonable applica-
tion” clauses of § 2254(d)(1). Id. 529 U.S. at 407. Although
that opinion defined the unreasonable application clause
to include an unreasonable failure to extend a legal

24

principle to a new context where it ought to apply, the
Court did not elaborate how such extension principle
should be applied. Jd. at 408-9. In Ramdass v. Angelone,
530 U.S. 156, 166 (2000) the Court in a plurality opinion
restated the principle but again did not provide guidance
as to its implementation. There is, of course, a close
connection between the unreasonable failure to extend and
the identification of clearly established federal law for the
purpose of § 2254(d)(1). If the search for federal law is
limited to specific Supreme Court precedent, as the Court
of Appeals in the instant case maintained, it is difficult to
envision that the extension principle could be applied at
all. Thus, it is not surprising that the Court of Appeals did
not apply the principle in this case. On the other hand,
where a habeas corpus court sought federal law in this
Court’s general jurisprudence, it recognized that that law
could be derived through application of the extension
principle. Kennaugh, 289 F.3d at 45; Taylor, 288 F.3d at
851. The instant case affords an opportunity for the Court
to address this issue.

4. CERTIORARI SHOULD BE GRANTED TO SET-
TLE WHETHER A HABEAS CORPUS REVIEW-
ING COURT IS OBLIGED TO PERFORM A DE
NOVO REVIEW OF THE RECORD WHEN IT
RESTS ITS DECISION ON STATE COURT
FACTFINDING CHALLENGED UNDER 28 U.S.C.
§ 2254(d)(2) AND THE DISTRICT COURT DID
NOT HOLD AN EVIDENTIARY HEARING.

The decision of the Court of Appeals is based upon the
assumption, derived solely from the state fact finding, that
Mr. Chadwick has the ability to comply with the order as
to which he was held in contempt. Mr. Chadwick’s petition

25

challenged that fact finding under 28 U.S.C. § 2254(d)(2)
as unreasonable in light of the record evidence.

The District Court did not hold an evidentiary hear-
ing, but concluded that Mr. Chadwick had the ability to
comply based solely on the state court fact finding. The
District Court did not examine the state court fact finding
in any depth, however, granting relief on other grounds.
The appeal, filed by Mrs. Chadwick, did not raise this
issue, nor was it briefed or argued. Since Mr. Chadwick
was not aggrieved by the District Court order he could not
raise the issue on appeal. Mr. Chadwick thus faces a
decision by the Court of Appeals which is premised upon
the very fact finding he challenged in his Petition, but
which was not litigated.

The Court of Appeals reviewed the District Court's
legal conclusions de novo and noted that “If a District
Court has a proper occasion to make findings of fact, they
are reviewed for clear error.” (Appendix A, p.12, n.6).
Although the Court of Appeals noted (Jd. p.3) that the
District Court accepted the state courts’ findings as to Mr.
Chadwick’s ability to comply, these findings were not
further reviewed. The Court of Appeals noted, in fact, that
“no § 2254(d)(2) inquiry is necessary here.” Id., p.15, n.7.

Whether the state court record properly supported
that finding, the issue presented in the petition for habeas
corpus, was a mixed question of fact and law. Had the
District Court based its decision on this issue, it doubtless
would have been reviewed de novo. As a result of the Court
of Appeals decision, however, this question which the
Court of Appeals found significant but the District Court
did not, received no review at all. The effect was to elimi-
nate any right Mr. Chadwick had to habeas corpus relief
under § 2254(d)(2).

26

Such a result does not give proper effect to the statu-
tory provision. The Sixth Circuit has attempted to resolve
this problem by conducting an independent examination of
the record to make its own determination as to contested
facts in cases where the District Court did not hold an
evidentiary hearing. Taylor, 288 F.3d at 850. It is submit-
ted that such a procedure, or remand to the District Court
for an evidentiary hearing, should be followed in cases like
the instant one to avoid foreclosing § 2254(d)(2) claims.

5. CERTIORARI SHOULD BE GRANTED TO SET-
TLE WHETHER A PRIVATE PARTY HAS ARTI-
CLE III STANDING TO APPEAL IN A HABEAS
CORPUS PROCEEDING UNDER 28 U.S.C. § 2254
WHERE NO STATE RESPONDENT HAS AP-
PEALED.

The Court of Appeals found that Mr. Chadwick’s
former wife had standing to appeal the grant of habeas
corpus, notwithstanding that none of the state respon-
dents filed a notice of appeal. This question has not previ-
ously been addressed by this Court and there are sound
legal and policy reasons not to permit this result.

In Diamond v. Charles, 476 U.S. 54 (1986) this Court
dismissed an appeal by a physician who sought to chal-
lenge the constitutionality of a state abortion control law
after the state had abandoned its interest in the case. In
the absence of the state as a party, the Court held that
there was no case for him to join. He would have to estab-
lish Article III standing on his own, which he was unable
to do because he had no direct stake, merely an interest in
the abortion process.

The Court of Appeals concluded in the instant case
that Mrs. Chadwick could establish standing in her own

re ee ees

27

right because she met the requisite tests: an injury in fact
which is concrete, not conjectural or hypothetical; a fairly
traceable connection between the alleged injury and the
other party; and that it was likely, as opposed to specula-
tive, that the injury will be addressed by a decision favor-
able to the appellant. (Appendix A, p.7-8). See Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560-63 (1992).

The alleged injury, however, must be legally cogniza-
ble. Diamond, 476 U.S. at 64. As that decision held, “a
private citizen lacks a judicially cognizable interest in the
prosecution or non-prosecution of another.” /d., citing
Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973). By the
same reasoning, a private citizen lacks a judicially cogni-
zable interest in the imprisonment of another. Just as the
Court pointed out in Diamond, 476 U.S. at 65, “the state
alone is entitled to create a legal code,” only the state is
empowered to impose the sanction of imprisonment. Thus,
while Mrs. Chadwick may have a strong interest in keep-
ing her ex-husband in jail, that is not an interest that the
law permits a private individual to pursue. A contrary
result would allow crime victims to oppose habeas corpus
relief sought by their alleged perpetrators. This is not a
result that our system of justice ever has recognized.
Indeed, this Court has refused to permit an interested
private party to prosecute a criminal contempt, requiring
the appointment of a disinterested prosecutor. Young v.
U.S. ex rel. Vuitton et fils, S.A., 481 U.S. 787 (1987). In a
recent decision, this Court did permit a private environ-
mental group to seek injunctive relief and civil penalties
against an alleged violator of the Clean Water Act, even
though the penalties would be paid to the government.
Friends of Earth, Inc. v. Laidlaw Environmental Services,
Inc., 528 U.S. 167, 184-88 (2000). There, however, the Act
specifically authorized private enforcement. There is no
suggestion that the Court would seek to extend that rule

28

to create standing to enforce a criminal penalty like
imprisonment, and the opinion distinguished Linda R.S.
partly on that basis. 528 U.S. at 188, n.4.

Even in the event it should be determined that Mrs.
Chadwick’s interest is legally cognizable, it still fails to
meet the test of a real, non-speculative injury. The Court
of Appeals reasoned that the potential reduction in Mrs.
Chadwick’s distribution of marital property, if Mr.
Chadwick were not under the pressure of imprisonment to
pay the money at issue, was sufficient to conclude that
Mrs. Chadwick had demonstrated a palpable injury which
was addressable by the Court (Appendix A, p.8). However,
the money at issue is not payable to Mrs. Chadwick; she
has not received any award of marital property or money,
so that any injury that she might claim would be hypo-
thetical and contingent, not real and actual. Mrs.
Chadwick has the burden of proving her injury in order to
establish standing, Defenders of Wildlife, 504 U.S. 560-63,
and failed to prove that she will sustain any loss if Mr.
Chadwick is released from confinement that she would not
suffer in any event. Moreover, if Mrs. Chadwick’s injury is
not hypothetical then her injury is simply as an unpaid
creditor, removing all doubt that Mr. Chadwick’s impris-
onment is for the purpose of coercing the payment of
money, notwithstanding that imprisonment for debt is
everywhere abolished.

Furthermore, Mrs. Chadwick’s alleged injury, as
framed by the Court of Appeals, lacks a nexus with the
issue — lawfulness of confinement — in a habeas corpus
case. The injury must be fairly traceable to the challenged
conduct for standing to be shown. Allen v. Wright, 468 U.S.
737, 754 (1984). If Mrs. Chadwick has suffered an injury, it
is because she has not proven that Mr. Chadwick has
possession of the cash she seeks, despite having conducted

29

extensive discovery. No injury is caused simply by the
release of Mr. Chadwick from confinement. In addition, if
Mrs. Chadwick has sustained an injury as alleged, a
habeas corpus court cannot address it. Such a court is
concerned only with the lawfulness or not of confinement.
The Court cannot give her the money or property she
seeks.

Whether a private party has standing to appeal the
grant of habeas corpus relief may be a matter of first
impression. The Court of Appeals cited only one case
where the issue was litigated, Martin-Trigona v. Shiff, 702
F 2d 380 (2nd Cir. 1983), where a bankrupt debtor sought
habeas corpus relief to question the power of a bankruptcy
court to order him imprisoned for contempt for refusal to
submit to examination by the trustees in bankruptcy. This
case was unique in that because the bankrupt named the
judge as the respondent the court ordered the trustees to
respond. The trustees, however, were not ordinary private
parties but were officers appointed by and responsible to
the court. It does not appear that the court considered the
issue of a legally cognizable interest in the imprisonment
of the bankrupt. The contempt at issue, however, related
directly to the duties the trustees were appointed to
perform and thus it was relatively easy to conclude that
the trustees had a direct and real interest.

These unique considerations aside, the notion that a
private party may control habeas corpus litigation raises
troubling issues. The opportunity, as has been demon-
strated in the instant case, to use the power of the state to
deprive another of his freedom for personal retribution
and to achieve leverage in a private lawsuit, is one that
the law should not abet or encourage.

a
v

30

CONCLUSION

For the foregoing reasons the Petitioner respectfully
prays that his Petition for a Writ of Certiorari be granted.

Respectfully submitted,

H. BEATTY CHADWICK
P.O. Box 23

Thornton, PA 19373
(610) 595-2740, ext. 317

APPENDIX
Opinion of the United States Court of Appeals
for the Third Circuit, December 4, 2002............. App. 1

Opinion of the United States District Court for
the Eastern District of Pennsylvania, January

Be Eb ulciiasinuédintnaidaahonmsabntneciasediienairametnies App. 27
Order of Supreme Court of Pennsylvania,
NE TEL, CIID cavescnncsisnésspckinstersissnenrnprenionveens App. 47

Order of United States Court of Appeals for
the Third Circuit Sur Petition for Rehearing,
ee Se SE ia renteerencknienneninsiinesasenssedereases App. 48

Judgment of United States Court of Appeals
for the Third Circuit, August 20, 2002............. App. 50

Order of Court of Common Pleas of Delaware
County, Pennsylvania, July 22, 1994............... App. 52

Order of Court of Common Pleas of Delaware
County, Pennsylvania, November 2, 1994........ App. 54

Extract from Petition for Writ of Habeas
Corpus showing grounds for relief, filed in
United States District Court for the Eastern
District of Pennsyivania, March 2, 2000.......... App. 57

a

App. 1
APPENDIX A

PRECEDENTIAL
Filed December 4, 2002

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 02-1173

H. BEATTY CHADWICK
Vv.

JAMES JANECKA, WARDEN, DELAWARE COUNTY
PRISON; THE DISTRICT ATTORNEY OF COUNTY OF
DELAWARE; THE ATTORNEY GENERAL OF THE STATE
OF PENNSYLVANIA

Vv.

BARBARA JEAN CROWTHER CHADWICK,
(Intervenor in District Court)

BARBARA JEAN CROWTHER CHADWICK,
Appellant

ON APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

District Court Judge: Honorable Norma L. Shapiro
(D.C. No. 00-cv-01130)

Argued: May 24, 2002
Before: ALITO, MCKEE, and WALLACE,* Circuit Judges.

(Opinion Filed: December 4, 2002)

*The Honorable J. Clifford Wallace, Senior Judge of the United States
Court of Appeals for the Ninth Circuit, sitting by designation.

App. 2

ALBERT MOMUJIAN

NANCY WINKELMAN (Argued)

KEVIN C. McCULLOUGH

STEPHEN A. FOGDALL

Schnader Harrison Segal &
Lewis, L.L.P.

1735 Market Street, Suite 3800

Philadelphia, PA 19103

Counsel for Appellants

THOMAS S. NEUBERGER (Argued)
Thomas S. Neuberger, P.A.

2 East Seventh Street, Suite 302
Wilmington, DE 19801

ANNA M. DURBIN
PETER GOLDBERGER
50 Rittenhouse Place
Ardmore, PA 19003

Co-Counsel for Appellee

D. MICHAEL FISHER
WILLIAM H. RYAN, JR.
ROBERT A. GRACI

AMY ZAPP

Office of Attorney General
16th Floor, Strawberry Square
Harrisburg, PA 1712

Counsel for Amicus Curiae
Pennsylvania Office of Attorney
General

OPINION OF THE COURT

ALITO, Circuit Judge:

This appeal was taken from an order granting a petition
for a writ of habeas corpus filed by Mr. H. Beatty Chadwick
under 28 U.S.C. §2254. The petitioner has applied eight
times to the courts of Pennsylvania and six times to the
federal district court for release from incarceration for civil

App. 3

contempt for refusing to comply with an order in a
matrimonial proceeding directing him to pay over $2.5
million into an escrow account. In the present case, the
District Court concluded that the petitioner had exhausted
state remedies even though he had not applied to the
Pennsylvania Supreme Court for review of the adverse
decision of the Superior Court. In the view of the District
Court, it was sufficient that the petitioner subsequently
submitted a habeas petition to the Pennsylvania Supreme
Court in its original jurisdiction pursuant to 42 Pa. Cons.
Stat. §721. With respect to the merits of the present
proceeding, the District Court accepted the state courts’
repeated findings that the petitioner is able to comply with
the order directing him to pay the funds into escrow, but
the District Court nevertheless held that the length of
petitioner's confinement — then almost seven years —
meant that the contempt order had lost its coercive effect
and that confinement for civil contempt was no longer
constitutional. On appeal, the petitioner defends that
decision of the District Court but does not contest the state
courts’ findings that he is able to comply with the
underlying order but simply refuses to do so. We reverse.

I

In November 1992, Mrs. Barbara Chadwick filed for
divorce in the Delaware County (Pennsylvania) Court of
Common Pleas. During an equitable distribution conference
in February 1993, Mr. Chadwick informed the state court
and Mrs. Chadwick that he had unilaterally transferred
$2,,502,000.00 of the marital estate to satisfy an alleged
debt to Maison Blanche, Ltd., a Gibraltar partnership.

It was later discovered that (1) one of the principals of
Maison Blanche had returned $869,106.00 from Gibraltar
to an American bank account in Mr. Chadwick’s name and
that these funds had then been used to purchase three
insurance annuity contracts; (2) $995,726.41 had been
transferred to a Union Bank account in Switzerland in Mr.

Blanche had never been received. The state court then

App. 4

entered a freeze order on the marital assets on April 29,
1994.

In May 1994, Mr. Chadwick redeemed the annuity
contracts and deposited the funds in a Panamanian bank.
After a hearing on July 22, 1994, the court determined that
Mr. Chadwick’s transfer of the money was an attempt to
defraud Mrs. Chadwick and the court. At that time, the
court ordered petitioner to return the $2,502,000.00 to an
account under the jurisdiction of the court, to pay
$75,000.00 for Mrs. Chadwick’s attorney’s fees and costs,
to surrender his passport, and to remain within the
jurisdiction. Mr. Chadwick refused to comply, and Mrs.
Chadwick thereafter filed a petition to have him held in civil
contempt. Mr. Chadwick failed to appear at any of the three
contempt hearings, but his attorney was present. The court
found Mr. Chadwick in contempt of the July 22, 1994,
order and issued a bench warrant for his arrest.

After learning of the bench warrant, Mr. Chadwick fled
the jurisdiction but was arrested and detained on April 5,
1995. The state court determined that Mr. Chadwick had
the present ability to comply with the terms of the July 22,
1994, order and set bail at $3,000,000. Mr. Chadwick
could have been released from custody either by posting
bail or by complying with the July 22, 1994, order. To date,
he has done neither.

Since his confinement, Mr. Chadwick has applied eight
times to the state courts’ and six times to the federal court?

1. The state petitions include: (1) an emergency petition for release,
which was denied by the Court of Common Pleas and affirmed by the
Superior Court; (2) six state habeas petitions, all of which were denied;
and (3) a petition for release from imprisonment or, in the alternative,
house arrest, which was denied. See Appellant's Br. at 8-12.

2. The federal petitions include: (1) an emergency motion for injunctive
relief pursuant to 42 U.S.C. § 1983, which was denied because
abstention was appropriate under the doctrine of Younger v. Harris, 401
U.S. 37 (1971); (2) an emergency motion pursuant to 42 U.S.C. § 1983,
which was denied, or, in the alternative, habeas corpus under 28 U.S.C.
§ 2241, which was dismissed for failure to exhaust state remedies; (3) a
third federal habeas petition, which was denied for failure to exhaust
state remedies; (4) a petition for reconsideration of the dismissal of the

App. 5

to gain release from incarceration. After the trial court
denied his sixth state habeas petition, the Superior Court
affirmed the decision on April 23, 1997, stating:

Instantly, appellant cites to the fact that he has been
incarcerated since April 5, 1995. He claims the length
of his incarceration, his age, poor health, inability to
pursue his career and repeated hearings where he has
refused compliance suggests that there is no possibility
that he will comply with the order. Appellant admits
that no court in this jurisdiction has adopted this test
and we will not do so here. While it seems reasonable
that at some point a temporal benchmark should be
adopted to determine when contempt incarceration
becomes impermissibly punitive we think that it is for
our high court to make such a determination.

Chadwick v. Janecka, No. 00-CV-1130, 2000 U.S. Dist.
LEXIS 21732, at *14-15 (E.D.Pa. Dec. 11, 2000) (internal
citation omitted). Despite the Superior Court’s invitation
that the petitioner ask the Pennsylvania Supreme Court to
decide the point at which incarceration for contempt
becomes punitive, the petitioner did not file an allocatur
petition in the state supreme court.

Later, on July 18, 1997, petitioner filed another petition
for federal habeas relief, which was dismissed for failure to
exhaust state court remedies. The District Court wrote:

Although Mr. Chadwick has forfeited his right to seek
Supreme Court review of the Superior Court’s April 23,
1997 denial of his sixth state habeas petition, see
Pa.R.App.P. 1113(a) (petition for allowance of appeal
must be filed within 30 days of order), he would not be
barred from filing a seventh state habeas petition
based on his present confinement of approximately
thirty-seven months. Under Pennsylvania law, Mr.

third federai habeas petition, which was also denied for failure to
exhaust state remedies; (5) a fourth federal habeas petition, which was
also denied for failure to exhaust state remedies; and (6) a fifth federal
habeas petition, which is the basis of this appeal. See Appellant's Br. at
12-13.

App. 6

Chadwick can file a seventh state habeas petition in
the Court of Common Pleas and exhaust his appellate
remedies, see 42 Pa.Cons.Stat.Ann. §931, or petition
directly in the Supreme Court, which has original
jurisdiction over habeas corpus proceedings. See 42
Pa.Cons.Stat.Ann. §721(1). But unless the issues
presented in the federal habeas petition have all been
first presented to the Supreme Court, the district court
may not exercise jurisdiction. See Lambert, 134 F.3d at
515 (requiring “complete exhaustion”); Swanger, 750
F.2d at 295 {raising claim before Supreme Court in
petition for allowance of appeal satisfies exhaustion
requirement).

Chadwick v. Andrews, No. 97-4680, 1998 WL 218026, at *5
(E.D.Pa. April 30, 1998) (emphasis added). Because Mr.
Chadwick had not sought review in the Pennsylvania
Supreme Court on the issue presented in his federal
petition, that petition was dismissed.

In September 1999, Mr. Chadwick filed a pro se
Application for Leave to File Original Process (his seventh
state habeas action) with the Pennsylvania Supreme Court.
Mrs. Chadwick sought permission to intervene, and
opposed the application and the state habeas petition. In a
per curiam order dated February 8, 2000, the Pennsylvania
Supreme Court granted the request to file original process
and the request to file an answer, but the court denied the
petition for habeas corpus.

On March 2, 2000, Mr. Chadwick filed the instant
petition for federal habeas relief. The District Court granted
that petition on January 3, 2002, but stayed its order for
30 days to “allow appeal and application for further stay of
this court’s order to the appellate court.” Chadwick uv.
Janecka, No. 00-1130, 2002 U.S. Dist. LEXIS 10, at *27
(E.D.Pa. Jan.3, 2002). Mrs. Chadwick took this timely
appeal. By order dated January 31, 2002, we granted Mrs.
Chadwick’s motion for a stay pending appeal. The United
States Supreme Court thereafter denied Mr. Chadwick's
Application for Enlargement and to Vacate Stay.

Il.

The first issue we must address is whether Mrs.
Chadwick has standing to proceed on appeal. Mr. Chadwick

App. 7

argues that because Mrs. Chadwick was an intervenor in
the District Court, she lacks Article "I standing. He further
argues that, because the respondents — the warden, the
Delaware County District Attorney, and the Attorney
General of the Commonwealth — did not appeal, we do not
have jurisdiction to entertain this appeal.

The United States Supreme Court has stated that “an
intervenor's right to continue a suit in the absence of the
party on whose side the intervention was permitted is
contingent upon a showing by the intervenor that he fulfills
the requirements of Artficle] III.” Diamond v. Charles, 476
U.S. 54, 68 (1986). Under Article III of the United States
Constitution, the judicial power extends only to “Cases” and
“Controversies.” As noted in Vermont Agency of Natural
Resources v. United States ex rel. Stevens, 529 U.S. 765,
771 (2000):

a plaintiff must meet three requirements in order to
establish Article III standing. See, e.g., Friends of Earth,
Inc. v. Laidlaw Environmental Services (TOC), Inc., 528
U.S. 167, 180-181, 120 S. Ct. 693, 145 L. Ed. 2d 610
(2000). First, he must demonstrate “injury in fact” — a
harm that is both “concrete” and “actual or imminent,
not conjectural or hypothetical.” Whitmore v. Arkansas,
495 U.S. 149, 155, 109 L. Ed. 2d 135, 110 S. Ct. 1717
(1990) (internal quotation marks and citation omitted).
Second, he must establish causation — a “fairly...
traceable” connection between the alleged injury in fact
and the alleged conduct of the defendant. Simon v.
Eastern Ky. Welfare Rights Organization, 426 U.S. 26,
41, 48 L. Ed. 2d 450, 96 S. Ct. 1917 (1976). And third,
he must demonstrate redressability — a “substantial
likelihood” that the requested relief will remedy the
alleged injury in fact. Id.

See also, e.g., Valley Forge Christian College v. Americans
United For Separation of Church & State, 454 U.S. 464, 472
(1982); In re Grand Jury, 111 F.3d 1066, 1071 (3d Cir.
1997).

We have little difficulty concluding that Mrs. Chadwick
meets all of these requirements here. First, Mrs. Chadwick
clearly has suffered and continues to suffer an injury in

App. 8

fact that is both “concrete” and “actual,” “not conjectural or
hypothetical.” Mr. Chadwick has placed a substantial sum
of money beyond the reach of the state court before whom
the matrimonial case is pending. If the decision of the
District Court is affirmed, Mr. Chadwick will be released
from jail and will be relieved of the pressure to return this
money for equitable distribution. Second, Mrs. Chadwick's
injury is unquestionably traceable to Mr. Chadwick's
refusal to comply with the state court order under which he
is being held. The District Court’s order would erase the
effect of the state court order requiring the return of the
funds and would significantly reduce Mrs. Chadwick's
share of the marital estate. Third, Mrs. Chadwick's injury
may be redressed by a favorable decision here. A reversal of
the District Court's order granting Mr. Chadwick's petition
would require him to remain in prison until he returns the
$2.5 million to the state court for later distribution.

In arguing that Mrs. Chadwick lacks standing, the
petitioner relies principally on Diamond v. Charles, 476 U.S.
54 (1986), but that case is easily distinguishable. The
Diamond case involved a constitutional attack on an Illinois
statute restricting abortions. Id. at 56. Diamond, a
pediatrician, successfully moved to intervene in the District
Court, based on his conscientious objection to abortion and
his status as a pediatrician and the father of a minor
daughter. Id. at 66. When the District Court permanently
enjoined provisions of the statute and the Court of Appeals
affirmed, the State of Illinois did not appeal to the Supreme
Court, but Diamond did. Id. at 62-63. The Court held that
Diamond could not maintain the appeal as the sole
appellant because he lacked Article III standing. Id. at 64-
71. Noting that Illinois, by not appealing, had accepted the
decision that its statute was unconstitutional, the Court
observed that even if it upheld the siatute, Diamond, a
private citizen, could not compel the state to enforce it. Id.
at 64-65. In addition, the Court explained, Diamond could
not establish that he had or would suffer injury in fact. Id.
at 65-71. Diamond argued that if the statute were upheld,
there would be fewer abertions and greater demand for his
services as a pediatrician, but the Court dismissed this
argument as speculative. Id. at 66. The Court likewise
rejected Diamond's contention that he had standing

App. 9

because of his interest in the standards of medical practice
relating to abortion. Id. at 66-67. The Court stated that
Diamond's abstract interest in the issue of abortion could
not substitute for the concrete injury demanded by Article
III. Id. In response to Diamond's claim of standing as the
father of a minor daughter, the Court noted that the
validity of the parental notification provision of the statute
was not at issue in the appeal and Diamond had not
provided factual support to show that the provisions that
were at issue threatened him with any concrete injury. Id.
at 67. Finally, the Court held that Diamond could not
assert any constitutional rights of unborn fetuses and that
the award of fees against him in the District Court could
not “fairly be traced to the Illinois Abortion Law.” Id. at 70.

Other than the fact that Diamond and Mrs. Chadwick are
both intervenors, the two cases have little in common. Mrs.
Chadwick, as noted, has a direct financial interest: she
wants Mr. Chadwick to produce a very substantial sum of
money in which she claims a share. By contrast, Diamond's
claim that upholding the Illinois law would result in more
live births and thus increase his income as a pediatrician
was highly speculative and an obvious makeweight.
Diamond was a classic case of an attempt to litigate an
abstract legal issue; the present case involves a concrete
monetary interest.

Mr. Chadwick argues, however, that Mrs. Chadwick has
no concrete injury at stake because ‘even if she were
somehow to secure a reversal of the district court's order,
the respondents would still be required to release Mr.
Chadwick, because they did not appeal.” Appellee’s Br. at
21. We reject this highly technical argument and find
Martin-Trigona v. Shiff, 702 F.2d 380 (2d Cir. 1983),
instructive on the question whether someone other than the
legal custodian of a prisoner may appeal an adverse
decision in a habeas proceeding. In Martin-Trigona, a
bankruptcy judge ordered a debtor imprisoned for civil
contempt when he refused to submit to’ examination by the
trustees. Id: at 381. The debtor filed a petition for a writ of
habeas corpus, the District Court granted the motion, and
the trustees appealed. Id. The Second Circuit held that the
trustees were the real parties in interest because “[tlhey

App. 10

ha[d] a legitimate interest in seeing to it that Martin-
Trigona testifie[d] to the location of certain assets, books,
and records that are necessary to the administration of the
estates.” Id. at 386. Because the trustees’ interests were
sufficiently affected by the District Court’s order, the
Second Circuit held that the trustees had standing to

appeal even though they were not the custodian of the
ys Pome Id.; Cf. United States ex rel. Thom v. Jenkins, 760
F.2d 736 (7th Cir. 1985) (private party who prosecuted
contempt proceedings against judgment debtor was
respondent and appellee on appeal of debtor's habeas
petition following jailing for contempt). Martin-Trigona is
analogous to the case at bar because Mrs. Chadwick — like
the trustees — is the party who has “a legitimate interest in
seeing to it,” 702 F.2d at 386, that Mr. Chadwick returns
a substantial portion of the marital estate to the court. We
find the decision in Martin-Trigona to be persuasive.

The only case cited by Mr. Chadwick in support of his
position is far afield. In Carter v. Rafferty, 826 F.2d 1299,
1303-04 (3d Cir. 1987), the District Court granted habeas
petitions filed by two prisoners who had been tried and
convicted together in state court. The habeas respondents
appealed, but their notice of appeal “specifically limited
itself to the order releasing [one of the prisoners].” Id. at
1303. Noting that what was then Rule 3(c) of the Federal
Rules of Appellate Procedure*® required that a notice of
appeal “designate the judgment, order, or part thereof
appealed from,” the Court held that it lacked jurisdiction to
consider the portion of the District Court’s judgment
relating to the other prisoner because the appellants had
failed to specify that they were appealing that part of the
judgment. Id. at 1304. Thus, Carter does not stand for the
proposition that only the person with the keys to the jail
has standing to appeal an order granting a writ of habeas
corpus. Rather, Carter holds that only the portions of an
order specified in a notice of appeal may be challenged in
the appeal. We accordingly hold that Mrs. Chadwick has
Article III standing to pursue the present appeal. We have
considered all of Mr. Chadwick's standing arguments, and
we find them to be devoid of merit.

3. See current Fed. R. App. Proc. 3(c)(1)(B).

App. 11

III.

Mrs. Chadwick argues that Mr. Chadwick did not
exhaust all available state court remedies before presenting
his claims to the federal court in his habeas petition. See
28 U.S.C. §2254(b)(1). Mrs. Chadwick makes two
exhaustion arguments. First, she argues that Mr. Chadwick
did not fairly present to the Pennsylvania Supreme Court
the same claims that he raised in his federal habeas
petition. See Picard v. Connor, 404 U.S. 270, 275-76 (1971).
Specifically, Mrs. Chadwick urges reversal because the
period of confinement listed in Mr. Chadwick's application
for leave to file original process before the Pennsylvania
Supreme Court — “over 50 months” (i.e., four years and
two months) — and the period of confinement for which the
District Court granted habeas — “nearly seven years” — are
not the same. Second, Mrs. Chadwick argues that Mr.
Chadwick's application for leave to file original process did
not fairly present the claims to the Pennsylvania Supreme
Court where, although it has original jurisdiction in habeas
matters,‘ the Pennsylvania Supreme Court will ordinarily
refer habeas petitions to the appropriate lower court, unless
there exists “imperative necessity or apparent reason why
expedition is desirable or required.” See Commonwealth ex
rel. Paylor v. Claudy, 366 Pa. 282, 287 (1951).

Although Mrs. Chadwick would have us decide the
question of exhaustion, we decline to do so here because,
under the Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”), Pub. L. 104-132, 110 Stat. 1214 (enacted
April 24, 1996), we may deny a habeas petition on the
merits even though state remedies may not have been
exhausted. See 28 U.S.C. §2254(b)(2); see also
Pennsylvania ex rel. Craig v. Maroney, 348 F.2d 22, 33 (3d
Cir. 1965); In re Emst, 294 F.2d 556, 561-62 (3d Cir.
1961).

4. Pennsylvania statutes state that “[t]he Supreme Court shall have
original but not exclusive jurisdiction of all cases of . . . Habeas corpus.”
42 Pa. Cons. Stat. § 721.

Turning to the merits,° we must first address the proper
scope of review in this case. The parties dispute whether
the standard of review set out in 28 U.S.C. §2254(d)
applies here.®

Relying on Everett v. Beard, 290 F.3d 500, 507-08 (3d
Cir. 2002); Appel v. Horn, 250 F.3d 203, 209-12 (3d Cir.
2001); and Hameen v. Delaware, 212 F.3d 226, 248 (3d
Cir. 2000), Mr. Chadwick argues that 28 U.S.C. § 2254(d) is
inapplicable in this case because the “state supreme court,
after accepting Mr. Chadwick’s original habeas corpus
petition for adjudication on its merits, denied relief without
any statement of reasons at all.” Appellee’s Br. at 33.
According to Mr. Chadwick, under these circumstances, 28
U.S.C. § 2254(d) “simply does not apply.” Appellee’s Br. at
33. We reject this argument, which is contrary to Supreme
Court precedent and misinterprets our court’s prior
decisions.

Under 28 U.S.C. §2254(d)(1)(emphasis added), if a state
prisoner’s habeas claim “was adjudicated on the merits in
State court proceedings,” our standard of review is narrow:
we may not reverse “unless the adjudication of the claim

. . resulted in a decision that was contrary to, or involved

5. After our decision reversing the decision of the District Court was
filed, Mr. Chadwick filed a petition for rehearing that substantially
elaborated on certain points raised in his original brief, and the panel
received an answer to the petition. pursuant to our Internal Operating
Procedure 9.5.2. Both panel rehearing and rehearing en banc have been
denied, but the panel believes that it is appropriate to respond to certain
points addressed in the petition for rehearing. Rather than issuing a
separate opinion sur denial of panel rehearing, this opinion has been
amended in order to integrate that discussion into the related discussion
in the original opinion.

6. We review de novo the District Court’s legal conclusions, including its
application of the standards of review imposed by AEDPA. See Banks v.
Horn, 271 F.3d 527, 531 (3d Cir. 2001). If a District Court has a proper
occasion to make findings of fact, they are reviewed for clear error. See
Love v. Morton, 112 F.3d 131, 133 (3d Cir. 1997).

a

App. 13

an unreasonable application of, clearly established Federal
Law... .” In Hameen, we held that the petitioner had
properly exhausted the claim that his Eighth Amendment
rights had been violated because two of the aggravating
circumstances found to support the death penalty were
duplicative. 212 F.3d at 246-47. We concluded, however,
that the Delaware Supreme Court “did not pass on [the
petitioner's] Eighth Amendment constitutional duplicative
aggravating circumstances argument, even though it had
the opportunity to do so.” Id. at 248. Accordingly, the
Hameen panel held that this claim had not been
“adjudicated on the merits in State court proceedings” and
that the restrictive standard of review in 28 U.S.C.
§ 2254(d)(1) did not apply. 212 F.3d at 248.

Appel followed Hameen, stating that “when, although
properly preserved by the defendant, the state court has
not reached the merits of a claim thereafter presented to a
federal habeas court, the deferential standards provided by
AEDPA .. . do not apply.” 250 F.3d at 210. The Appel panel
held that the petitioner had properly presented in the state
courts a claim of the constructive denial of counsel but that
the state courts had misconstrued the claim as one of the
ineffective assistance of counsel. Id. at 210-12. Observing
that “(t]he two claims, of course, are different,” id. at 210,
the panel held that the constructive denial claim had not
been decided by the state courts and that the restrictive
standards of § 2254(d) did not apply. Id. at 211.

Finally, the Everett court, relying on Hameen, 290 F.3d at
508, held that the §2254(d) standards did not apply
because the state courts had not adjudicated the
petitioner's properly exhausted claim that his Sixth
Amendment right to the effective assistance of counsel had
been violated but instead had decided only that his rights
under state law had not been abridged. See id. at 516.

Hameen, Appel, and Everett stand for the proposition
that, if an examination of the opinions of the state courts
shows that they misunderstood the nature of a properly
exhausted claim and thus failed to adjudicate that claim on
the merits, the deferential standards of review in AEDPA do
not apply. Hameen, Appel, and Everett did not deal with

App. 14

summary dispositions — but Weeks v. Angelone, 528 U.S.
225 (2000), did.

In Weeks, the petitioner “presented 47 assignments of
error in his direct appeal to the Virginia Supreme Court.”
528 U.S. at 231. The state supreme court rejected number
44 without explanation. Reviewing this claim, the Fourth
Circuit recognized that the AEDPA standards do not apply
when a state court has not adjudicated a claim on the
merits, Weeks v. Angelone, 176 F.3d 249, 258 (4th Cir.
1999), but the Fourth Circuit held that “[wlhere, as here,
the state supreme court has adjudicated a claim on the
merits but has given no indication of how it reached its
decision, a federal habeas court must still apply the AEDPA
standards of review.” Id. at 259. Applying those standards,
the Fourth Circuit denied the application for a certificate
and dismissed the habeas petition.

The United States Supreme Court reviewed the claim set
out in assignment of error 44 and affirmed. See 528 U.S. at
231. After explaining why there had been no constitutional
violation, the Court wrote:

Because petitioner seeks a federal writ of habeas
corpus from a state sentence, we must determine
whether 28 U.S.C. § 2254(d) precludes such relief. The
Court of Appeals below held that it did. 176 F.3d, at
261. We agree. Section 2254(d) prohibits federal
habeas relief on any claim “adjudicated on the merits
in State court proceedings,” unless that adjudication
resulted in a decision that was “contrary to, or involved
an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of
the United States.” 28 U.S.C. §§ 2254(d) and (1) (1994
ed., Supp. III). For the reasons stated above, it follows
a fortiori that the adjudication of the Supreme Court of
Virginia affirming petitioner's conviction and sentence
neither was “contrary to,” nor did it involve an
“unreasonable application of,” any of our decisions.

528 U.S. at 237. Thus, the Supreme Court clearly held that
the § 2254(d) standards apply when a state supreme court
rejects a claim without giving any “indication of how it
reached its decision.” 176 F.3d at 259.

App. 15

Needless to say, if Hameen, Appel, and Everett conflict
with Weeks, the former must give way, but we see no such
conflict. Hameen, Appel, and Everett govern when the
opinion of a state court reveals that it did not adjudicate a
claim; Weeks applies when a claim is rejected without
explanation. In the present case, the Pennsylvania Supreme
Court rejected Chadwick’s claim on the merits -without
explanation. Weeks is therefore the governing precedent,
and § 2254(d) must be applied.

B.

Under 28 U.S.C. §2254(d), a federal court may grant
habeas relief only if the state court’s decision was “contrary
to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme
Court of the United States,” id. § 2254(d)(1), or was “based
on an unreasonable determination of the facts in light of
the evidence presented in the State court proceeding,” id.
§ 2254(d)(2).’? Moreover, a state court's factual findings are
“presumed to be correct,” and the habeas petitioner carries
the “burden of rebutting the presumption of correctness by
clear and convincing evidence.” 28 U.S.C. § 2254fe)( 1).

In Williams v. Taylor, 529 U.S. 362, 405-06 (2000),
Justice O’Connor wrote in her controlling opinion that a
state court ruling is “contrary to” clearly established
Supreme Court precedent for the purposes of § 2254(d)(1)
“if the state court applies a rule that contradicts the
governing law set forth in [the Supreme Court's] cases,” or
“if the state court confronts a set of facts that are materially
indistinguishable from a decision of [the Supreme Court]
and nevertheless arrives at a result different from [its]
precedent.” A state court decision is an “unreasonable
application” of Supreme Court precedent if it “identifies the

7. The District Court agreed with all of the factuat findings of the state
courts, stating that “[t}]he record below clearly demonsirates that the
state court findings were not erroneous. This court is convinced that Mr.
Chadwick has the present ability to comply with the July 22, 1994
order.” Chadwick v. Janecka, No. 00-1130, 2002 U.S. Dist. LEXIS 10, at
*19 (E.D.Pa. Jan. 3, 2002). Therefore, no §2254(d)(2) inquiry is

necessary here.
8. It has been argued that a state court may unreasonably apply clearly
established Supreme Court precedent by unreasonably refusing to

App. 16

correct governing legal rule from [the Supreme] Court's
cases, but unreasonably applies it to the facts of the
particular state prisoner’s case.” Williams v. Taylor, 529
U.S. 362, 407 (2000) (O'Connor, J., concurring) (controlling
opinion). When making the “unreasonable application”
inquiry, the federal habeas court should ask “whether the
state court's application of clearly established federal law
was objectively unreasonable.” Id. at 409 (emphasis added);
see also Matteo v. Superintendent, SCI Albion, 171 F.3d
877, 891 (3d Cir. 1999) (en banc) (stating the test to be
“whether the state court decision, evaluated objectively and
on the merits, resulted in an outcome that cannot
reasonably be justified [under existing Supreme Court
precedent]”) (emphasis added).

In urging this Court to affirm the District Court’s
decision, Mr. Chadwick argues that the state courts failed
to recognize that his confinement has ceased to be coercive
and that, as a consequence, he cannot be held in custody
any longer unless he is convicted and sentenced for
criminal contempt. We disagree and hold that the state
courts’ decision — denying habeas relief because Mr.
Chadwick has the present ability to comply with the court
order — was neither contrary to nor an unreasonable
application of “clearly established Federal Law, as
determined by the Supreme Court of the United States.” 28
U.S.C. § 2254(d)(1).

i

To determine whether a contempt order is civil or
criminal, Supreme. Court jurisprudence requires an
examination of the “character and purpose” of the sanction
imposed. See International Union v. Bagwell, 512 U.S. 821,

extend a legal principle to a new context. Ramdass v. Angelone, 530 U.S.
156, 165 (2000); Williams v. Taylor, 529 U.S. 362, 408 (2000); Marshall
v. Hendricks, 307 F.3d 36, 51 n.2 (3d Cir. 2002). For present purposes,
we assume the validity of this subset of the concept of unreasonable
application. In discussing the concept of unreasonable applications in
this opinion, we intend our remarks to refer to all types of unreasonable
application, including the unreasonable failure to extend.

|

App. 17

827 (1994); Gompers v. Buck’s Stove & Range Co., 221 U.S.
418, 441 (1911). Civil confinement “is remedial, and for the
benefit of the complainant,” Gompers, 221 U.S. at 441,
whereas criminal confinement “is punitive, to vindicate the
authority of the court.” Id. The Bagwell Court identified the
“paradigmatic coercive, civil contempt sanction” as

involviing] [the] confinfement] [of} a contemnor
indefinitely until he complies with an affirmative
command such as an order “to pay alimony, or to
surrender property ordered to be turned over to a
receiver, or to make a conveyance.” 221 U.S. at 442
. .. . In these circumstances, the contemnor is able to
purge the contempt and obtain his release by
committing an affirmative act, and thus “ ‘carries the
keys of his prison in his own pocket.’” Gompers, 221
U.S. at 442.

512 U.S. at 828 (emphasis added) (citations omitted).
Conversely, the Bagwell Court observed, “a fixed sentence
of imprisonment is punitive and criminal if it is imposed
retrospectively for a ‘completed act of disobedience,’ such
that the contemnor cannot avoid or abbreviate the
confinement through later compliance.” Id. at 828-29
(citations omitted). Thus, Bagwell seems to permit a
contemnor who has the ability to comply with the
underlying court order to be confined until he or she
complies, and if this reading is correct, Bagwell directly
contradicts the decision of the District Court in the present
case.

Mr. Chadwick, however, urges us not to take Bagwell at
face value. He contends that the phrase “indefinitely until
he complies” in Bagwell does not mean “permanently and
without other recourse.” Pet. for Rehearing at 4. Instead, he
maintains that “[t]he word ‘indefinitely’ is apparently used
in its most precise sense, to mean ‘with no pre-determined
ending date’... .” Pet. for Rehearing at 4 n.4. We have no
quarrel with this definition, but this understanding of the
term “indefinitely” does not explain away the critical
statement in Bagwell that a civil contemnor may be
confined “indefinitely until he complies.” 512 U.S. at 828
(emphasis added).

App. 18

The meaning of the statement in Bagwell that a
contemnor may be held “indefinitely until he complies” is
perfectly clear. The phrase “until he complies” sets the |
point in time when confinement must cease. The term
“indefinitely” describes the length of confinement up to that
point, namely, a period “having no exact limits,” Wesster’s
THIRD NEw INTERNATIONAL DictTionaRY 1147 (1971), because the
end point (the time of compliance) cannot be foretold. Mr.
Chadwick’s contrary interpretation — that “indefinitely
until he complies” means “indefinitely until he complies or
it becomes apparent that he is never going to comply” — is
insupportable. And even if that were a_ reasonable
interpretation, the petition would still lack merit because in
order to win it is not enough for Mr. Chadwick to show that
his reading is reasonable; he must show that his reading is
“clearly established” in Supreme Court precedent. 28 U.S.C.
§ 2254(d)(1).

In an effort to show that his position is “clearly
established” in Supreme Court case law, Mr. Chadwick
turns to Maggio v. Zeitz, 333 U.S. 56 (1948), which he
interprets to mean that a civil contemnor who is able to
comply with the underlying court order but simply will not
do so must eventually be released. In making this
argument, Mr. Chadwick relies almost entirely on two
sentences in the Maggio opinion, but when that opinion is
read in its entirety and with the context of the case in
mind, it is apparent that the opinion does not support Mr.
Chadwick's position. As we will explain, Maggio focuses on
the question of ability to comply, not willingness to comply
— and Mr. Chadwick's ability to comply has not been
challenged in the present proceeding and is not at issue.

Maggio is a procedurally complicated case,® but for

9. Maggio was the principal of a bankrupt camera shop. 333 U.S. at 58.
The bankruptcy trustee asked the referee to order Maggio to turn over
cameras and camera equipment that he had allegedly taken from the
business. Id.; In_re Luna Camera Services, 157 F.2d 951, 953 (2d Cir.
1946). To obtain such an order, the trustee was supposed to prove by
clear and convincing evidence that Maggio had wrongfully taken the
property and still possessed it. In re Luna Camera Services, 157 F.2d at
953. However, under Second Circuit precedent, once a wrongful taking

App. 19

present purposes, it is enough to note that Maggio was the
principal of a bankrupt company; that he was jailed for civil
contempt for failing to comply with a “turnover order”
directing him to return property that he had wrongfully
taken from the debtor; and that the Second Circuit affirmed
the order of contempt — even though there was no evidence
in the record that Maggio still possessed the property and
was thus able to return it and even though the Second
Circuit panel expressed the view that Maggio clearly did not
have the property and could not comply. Central to the
Second Circuit's holding was its interpretation of certain
statements in Oriel v. Russell, 278 U.S. 358 (1929), to mean
that Maggio’s continued possession of the property had to
be viewed as established as a matter of law irrespective of
whether he actually still had the property. See 333 U.S. at
71.

was shown, continued possession at the time when the turnover order
was sought was presumed unless the subject of the requested order
proved the contrary. Id. In Maggio’s case, the trustee offered no evidence
of Maggio's continued possession, but the referee found that Maggio still
possessed the property based solely on the presumption. The trustee
thus ordered Maggio to turn over the property, and both the District
Court and the Second Circuit affirmed. See 333 U.S. at 59. When Maggio
failed to comply with this order, the referee found him in contempt, and
the District Court affirmed and ordered him jailed until he complied. Id.

On appeal, the Second Circuit panel disagreed with Second Circuit
precedent under which continued possession was presumed unless
disproved. See 157 F.2d at 953. The panel expressed the view that the
presumption was contrary to common sense in some instances and that
Maggio no longer possessed the cameras and equipment. Id. at 953.

The panel, however, felt bound by circuit precedent to accept the
presumption. The panel noted that the finding in the litigation regarding
the turnover order that Maggio still possessed the property at the time
of that order (in 1943) was res judicata. 157 F.2d at 954. Furthermore,
the panel interpreted the Supreme Court’s decision in Oriel v. Russell,
278 U.S. 358 (1929), to mean that it was also necessary to accept the
fact that Maggio still possessed the property at the time of the order of
contempt (in 1945). See 157 F.2d at 954. The panel thus affirmed the
order of contempt, but it explicitly invited the Supreme Court to grant
certiorari and wipe out the objectionable circuit precedent regarding the
presumption of continued possession. See id. at 955. The Supreme
Court obliged.

App. 20

The Supreme Court reversed the Second Circuit and
remanded the case to the District Court for the purpose of
receiving evidence and making a finding on the question
whether Maggio was able to comply with the turnover order.
The entire focus of the opinion was on the issue of ability
to comply. In part I of its opinion, the Court held that a
turnover order should not be issued unless the person in
question has the present ability to comply. 333 U.S. at 61-
64.?° In part II, the Court discussed the ways in which a
bankruptcy trustee may prove continued possession and
present ability to comply. Id. at 64-67. The Court agreed
that present possession may sometimes be inferred from
past possession, but the Court counseled that close
attention should be paid to the particular circumstances of
the case. Id.

After discussing other aspects of civil contempt law in
part III of its opinion,”’ the Court explained in part IV that
a bankrupt may not be jailed for refusal to perform “an
impossibility.” 333 U.S. at 69. The Court disagreed with the
Second Circuit that Oriel compelled the courts to proceed
on the assumption that Maggio continued to possess the
property at the time of the order of contempt. The Maggio
Court noted that Oriel had quoted the following statement
from a lower court opinion:

“Where [confinement for civil contempt] has failed [to
produce compliance], and where a reasonable interval
of time has supplied the previous defect in the
evidence, and has made sufficiently certain what was
doubtful before, namely, the bankrupt’s inability to
obey the order, he has always been released, and I
need hardly say that he would always have the right to
be released, as soon as the fact becomes clear that he
can not obey.’”

10. Court stated: “The nature and derivation of the remedy make clear
that it is appropriate only when the evidence satisfactorily establishes
the existence of the property or its proceeds, and possession thereof by
the defendant at the time of the proceeding.” 333 U.S. at 63-64.

11.The Court reaffirmed that a person held in civil contempt cannot
attack the validity of the underlying order with which the person has not
complied. 333 U.S. at 67-69.

App. 21

333 U.S. at 72 (emphasis added) (quoting Oriel, 278 U.S. at
366 (quoting In re Epstein, 206 F. 568, 570 (E.D. Pa.
1913)). The Court continued that “the authorities relied
upon” in Oriel made it clear that the “decision did not
contemplate that a coercive contempt order should issue
when it appears that there is at that time no willful
disobedience but only an incapacity to comply.” Id. at 72-73.”

Addressing Maggio’s situation, the Court concluded that
Maggio’s possession of the property at the time of the
turnover order created a prima facie case of his ability to
-comply at the time of the civil contempt, and the Court
stated that he could “successfully meet” this prima facie
case “only with a showing of present inability to comply.”
Id. at 75. The Court continued:

Of course, if he offers no evidence as to his inability to
comply with the turnover order, or stands mute, he
does not meet the issue. Nor does he do so by evidence
or by his own denials which the court finds incredible
in context.

Id. at 76-77. Then, in the passage on which Mr. Chadwick
relies, the Court added:

[T]he bankrupt may be permitted to deny his present
possession and to give any evidence of present
conditions or intervening events which corroborate
him. The credibility of his denial is to be weighed in the
light of his present circumstances. It is everywhere
admitted that even if he is committed, he will not be
held in jail forever if he does not comply. His denial of

12.In two lengthy footnotes, the Maggio Court surveyed the relevant
lower court authorities. Id. at 73-74 nn. 6 & 7. In footnote six, the Court
examined cases involving turnover orders in bankruptcy and stated that
“[t]he cumulative effect of these authorities seems clearly to be that,
while a bankrupt’s denial of present possession, standing alone, may not
be sufficient to establish his inability to produce the property or its
proceeds, if the court is satisfied, from all the evidence properly before
it, that the bankrupt has not the present ability to comply, the
commitment order should not issue.” 333 U.S. at 73 n. 6 (emphasis
added). In footnote seven, the Court considered “cases involving
contempt orders for failure to pay alimony” and found that these also
turned on the same ability-to-comply principle. Id. at 74 n. 7.

App. 22

possession is given credit after demonstration that a
period in prison does not produce the goods. The fact
that he has been under the shadow of prison gates
may be enough, coupled with his denial and the type
of evidence mentioned above, to convince the court
that his is not a wilful disobedience which will yield to
coercion.

The trial court is obliged to weigh not merely the two
facts, that a turnover order has issued and that it has
not been obeyed, but all the evidence properly before it
in the contempt proceeding in determining whether or
not there is actually a present ability to comply and
whether failure so to do constitutes deliberate defiance
which a jail term will break.

333 U.S. at 76 (emphasis added).

Mr. Chadwick's reading of Maggio is based principally on
the two highlighted sentences in the block quote above. See
Pet. for Rehearing at 5. Mr. Chadwick interprets these
sentences to mean that “[t]he law eventually ceases trying
in the civil context to distinguish inability to comply with
adamant refusal.” Pet. for Rehearing at 5. This reading,
however, takes these two sentences out of context. When
the statements are read in context, it is apparent that they
refer to the inference of an inability to pay that arises after
long confinement.

This interpretation is strongly supported by the Maggio
Court's discussion of Oriel, to which we have previously
referred. The first of the two sentences in Maggio on which
Mr. Chadwick relies begins with the words “It is every
where admitted .. . .” The sentence is thus restating settled
law, not forging new ground, and the settled law is that
recounted in Oriel, i.e., that a contempt order should not be
issued unless there is a present inability to comply. See
333 U.S. at 72-74 and nn. 6, 7.

That the sentences in Maggio on which Mr. Chadwick
relies refer to the inability to comply is also strongly
supported by other parts of the opinion to which we have
already referred. One example is the Court’s statement that
a person in Maggio’s position could meet the prima facie
case of continued possession “only” by showing a present

App. 23

inability to comply. 333 U.S. at 75. Another example is
supplied by the very next sentence after those on which the
petition relies. That sentence states that long confinement
(“the shadow of prison gates”), together with a denial of
possession and corroborating evidence “may be enough” to
convince a court that the contemnor is not being “willfully
disobedient” but simply cannot comply. Id. at 76 (emphasis
added).

When the two sentences from Maggio on which Mr.
Chadwick relies are read in context, it is apparent that they
refer to the inference that may be drawn under most
circumstances when a _ contemnor, despite long
confinement, fails to comply with an order such as a
bankruptcy turnover order.” After all, the vast majority of
people would not remain in jail “forever” rather than obey
a court order requiring that the property of a bankrupt
estate be turned over. Thus, in most cases, after a certain
period, the inference that the contemnor is unable to
comply becomes overwhelming. The present case, however,
is not the ordinary case. On the contrary, it concerns an
individual whom we must assume is fully capable of
complying with the state court order but simply will not do
so. Neither Maggio nor any other Supreme Court case
clearly establishes that such a person must be released.

13. We note that the Third Circuit opinion on which Mr. Chadwick relies
most heavily — In re Grand Jury Investigation (Appeal of Braun), 600
F.2d 420 (3d Cir. 1979)("Braun”) — interpreted Maggio in this way. In
Braun, a panel of our court accepted the very proposition of law
advanced by Mr. Chadwick and accepted by the District Court — that a
civil contemnor who is simply unwilling to comply with the court order
must be released after the passage of a certain period of time — but the
panel did not suggest that Maggio required or even supported this
holding. Instead, the Braun court wrote:

Since it is impossible to succeed in coercing that which is beyond a
person's power to perform, continued incarceration for civil
contempt “depends upon the ability of the contemnor to comply with
the court's order. Maggio v. Zeitz, 333 U.S. 56, 76, 68 S.Ct. 401,
411, 92 L.Ed. 476 (1948).”

600 F.2d at 423 (quoting Shillitani v. United States, 384 U.S. 364, 371
(1966)). This understanding of Maggio, which contrasts sharply with Mr.
Chadwick's, is correct.

App. 24

2.

In this case, the District Court properly proceeded on the
assumption that Mr. Chadwick has the present ability to
comply with the July 1994 state court order. The state
courts have repeatedly so found. Under 28 U.S.C.
§ 2254(e)(1), the District Court was bound by these state
court factual determinations, absent rebuttal of the
presumption of correctness by clear and convincing
evidence. The District Court acknowledged that the record
demonstrates that the state court findings were not
erroneous, and the District Court stated that it was
“convinced that [Mr.] Chadwick has the present ability to
comply with the July 22, 1994 order.” Chadwick v.
Janecka, No. 00-1130, 2002 U.S. Dist. LEXIS 10, at *19
(E.D.Pa. Jan. 3, 2002).

Presuming these state court factual findings to be
correct, the District Court nevertheless concluded that Mr.
Chadwick's confinement had become punitive and that
therefore the state court decision was an unreasonable
application of federal iaw. Although the District Court
alluded to the Supreme Court's decisions in Bagwell and
Gompers, the District Court relied chiefly on this Court's
decision ir In re Grand Jury Investigation (Appeal of Braun),
600 F.2d 420 (3d Cir. 1979)("Braun”), in concluding that
the passage of time may alter the nature of a contemnor’s
confinement, transforming it from coercive to punitive and
requiring observance of the procedural rights associated
with criminal contempt. With this principle in mind, the
District Court concluded that because Mr. Chadwick had
defied the court's order for so long, there was “no
substantial likelihood” that he would comply in the future
and that therefore the order had lost its coercive effect.

In Braun, we upheld a contemnor’s confinement for
refusing to testify before a federal grand jury. Id. at 428.
The contemnor argued that his confinement was not
coercive but punitive, because “there was no substantial
likelihood that he would testify before the grand jury.” Id. at
422. Recognizing that some courts had applied the “no
substantial likelihood of compliance” standard, we noted
that the contemnor had been confined under a federal
statute that limited confinement to 18 months for refusing

App. 25

to testify before a grand jury. Id. at 423-24. We held that,
absent unusual circumstances, 18 months was not an
unreasonable length for confinement in this context, and
declined to inquire whether, in fact, there was no
substantial likelihood that the contemnor would comply
with the order to testify. Id. at 427.

Under 28 U.S.C. § 2254(d), the District Court’s holding —
that Mr. Chadwick can no longer be held in custody for civil
contempt because there is “no substantial likelihood” that
he will comply with the order — is erroneous. The District
Court incorrectly relied on dicta in one of our opinions, but
AEDPA is clear that the appropriate law to apply is
Supreme Court precedent. See 28 U.S.C. § 2254(d)(1)
(referring to “clearly established Federal law, as determined
by the Supreme Court of the United States”); see also
Williams, 529 U.S. at 412 (Ҥ 2254(d)(1) restricts the source
of clearly established law to [the Supreme] Court’s
jurisprudence”).

It is true that “federal habeas courts are [not] precluded
from considering the decisions of the inferior federal courts
when evaluating whether the state court’s application of the
law was reasonable.” Matteo, 171 F.3d at 890. But this
Court has clearly stated that decisions by lower federal
courts may be considered only “as helpful amplifications of
Supreme Court precedent.” Id. It is revealing to us that in
Braun this Court characterized the “no substantial
likelihood” test as an “additional constraint upon the civil
contempt power” beyond that recognized in decisions by the
United States Supreme Court. Braun, 600 F.2d at 423
(emphasis added). As we noted in Matteo, 171 F.3d at 890,
however, “federal courts may not grant habeas corpus relief
based on the state court's failure to adhere to the precedent
of a lower federal court on an issue that the Supreme Court
has not addressed.”

The Supreme Court has never endorsed the proposition
that confinement for civil contempt must cease when there
is “no substantial likelihood of compliance.” On the
contrary, in words that might as well have been written to
describe the case now before us, the Bagwell Court stated
that “[t]he paradigmatic coercive, civil contempt sanction

. . involves confining a contemnor indefinitely until he

App. 26

complies with an affirmative command such as an order ‘to
pay alimony, or to surrender property ordered to be turned
over to a receiver... .” Bagwell, 512 U.S. at 828
(emphasis added) (citation omitted). We have no need here
to decide whether In re Grand Jury Investigation remains
good law in light of Bagwell. It is enough for present
purposes that the state court decisions cannot be disturbed
under the restricted standard of review applicable in this
habeas case.

V.

Because the state courts have repeatedly found that Mr.
Chadwick has the present ability to comply with the July
1994 state court order, we cannot disturb the state courts’
decision that there is no federal constitutional bar to Mr.
Chadwick's indefinite confinement for civil contempt so long
as he retains the ability to comply with the order requiring
him to pay over the money at issue. Accordingly, the
District Court erred in holding that the state courts’
decisions were an unreasonable application of Supreme
Court precedent. We, therefore, reverse the order of the
District Court granting Mr. Chadwick's petition.

Our decision does not preclude Mr. Chadwick from filing
a new federal habeas petition if he claims that he is unable
for some reason to comply with the state court’s order. And,
needless to say, our decision imposes no restrictions on the
state courts’ ability to grant relief.’*

A True Copy:
Teste:

Clerk of the UnitedStates Court of Appeals
for the Third Circuit

14.We do not agree with Mr. Chadwick's argument that despite our
reversal of the District Court's order, the respondents in the District
Court must still release Mr. Chadwick because they did not appeal.
Because of our judgment, the District Court's order granting the writ no
longer has any operative effect and thus cannot command his release.

App. 27

APPENDIX B

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

H. BEATTY CHADWICK : CIVIL ACTION

We
JAMES JANECKA - NO. 00-1130

MEMORANDUM AND ORDER
Norma L. Shapiro, S.J. January 3, 2002

Petitioner H. Beatty Chadwick, Esq.’ (“Chadwick”),
filing a petition for writ of habeas corpus under 28 U.S.C.
§ 2254, challenges his continued incarceration for civil
contempt. In his petition, Chadwick argues that his
imprisonment is impermissibly punitive and he has been
denied due process because: (1) he was and is unable to
comply with a state court order of which he has been
adjudged contemptuous; (2) he was denied a jury trial and
other procedural rights; (3) he was imprisoned after a
summary proceeding; (4) his imprisonment has become
punitive; (5) he was imprisoned for failure to pay money;
(6) his civil imprisonment is indefinite; (7) the imprison-
ment order is facially unlawful; (8) the state court ordering
the incarceration lacked jurisdiction; and (9) he was
denied a prompt appeal.

United States Magistrate Judge Arnold C. Rapoport
issued a Report and Recommendation (“R & R”) to deny
and dismiss the petition without an evidentiary hearing and
find no probable cause to issue a certificate of appealability.

* Chadwick is an inactive member of the Pennsylvania Bar.

App. 28

Petitioner filed objections and Barbara Jean Crowther
Chadwick (“Ms. Chadwick”), petitioner’s estranged wife
and the Intervenor in this action, filed a motion to dismiss
Chadwick’s petition. For the reasons stated herein, the
motion to dismiss will be denied and after de novo consid-
eration of Chadwick’s petition, the petition for writ of
habeas corpus will be granted.

BACKGROUND

Ms. Chadwick filed a divorce action in the Delaware
County Court of Common Pleas in November, 1992.
During an equitable distribution conference in February,
1993, Chadwick informed the state court and Ms.
Chadwick he had transferred $2,502,000 of the marital
estate to satisfy an alleged debt to Maison Blanche, Ltd.
(“Maison Blanche”), a Gibraltar partnership. See
Chadwick v. Chadwick, No. 1555 Philadelphia 1995 at 2
(Pa. Super. Ct. Aug. 22, 1996) (“Chadwick I”). Ms.
Chadwick had no knowledge of any debt owed by
Chadwick to Maison Blanche.

After hiring a private investigator and further discov-
ery, Ms. Chadwick determined: (1) one of the principals of
Maison Blanche returned $869,106.00 from Gibraltar to
an American bank account in Chadwick’s name, and the
funds were used to purchase three annuity contracts; (2)
$995,726.41 had been transferred to a Union Bank ac-
count in Switzerland in Chadwick’s name; and (3)
$550,000.00 in stock certificates Chadwick claimed he had
transferred to an unknown barrister in England to for-
ward to Maison Blanche were never received. Id. at 3;
Chadwick v. Hill, No. 2192 Philadelphia 1996 at 2 n.1 (Pa.
Super. Ct. Apr. 23, 1997) (“Chadwick II’). The state court

App. 29

entered a freeze order on the marital assets on April 29,
1994.

In May, 1994, Chadw

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_1288%3A1. Public record. Not legal advice.