Prologue — Tilton v. Ramirez (No. 05-736)

Supreme Court, U.S.

. PIL ED

No. Q5- 73 6 DEC 5 - 2005

OFFICE OF THE CLERK

IN THE SUPREME COURT OF THE UNITED STATES

JOHN DOVEY, Director of California Department of Corrections,

Petitioner,

V.

RAYMOND RAMIREZ, Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

PETITION FOR WRiT OF CERTIORARI

BILL LOCKYER

Attorney General of the State of California

ROBERT R. ANDERSON

Chief Assistant Attorney General]

GARY W. SCHONS

Senior Assistant Attorney General

QUISTEEN S. SHUM

Deputy Attorney General

Counsel of Record

110 West "A" Street, Suite 1100

San Diego, CA 92101

P.O. Box 85266

San Diego, CA 92186-5266

Telephone: (619) 645-2613

Fax: (619) 645-2191

Counsel for Petitioner

QUESTIONS PRESENTED

1. Does a federal court of appeals have the authority to

issue a certificate of appealability under 28 U.S.C. § 2253, and

then vacate the denial of habeas relief, based on a claim that the

habeas petitioner had not raised in his prior state or federal court

procecdings and did not raise in his request for a certificate of

appealability?

2. Does it violate the limitations of 28 U.S.C. § 2254(e)(2)

to permit a habeas petitioner to develop facts underlying his

prior convictions as part of an Eighth Amendment challenge

when he never attempted to develop those facts as part of such

a challenge in the State court?

3. In light of Lockyer v. Andrade, 538 U.S. 63 (2003), can

federal habeas corpus relief be granted on the basis of an Eighth

Amendment violation when the habeas petitioner’s sentence

comports with California’s Three Strikes Law?

ii

TABLE OF CONTENTS

OPINIONS BELOW

STATEMENT OF JURISDICTION

RELEVANT CONSTITUTIONAL

AND STATUTORY PROVISIONS

STATEMENT OF THE CASE

REASONS FOR GRANTING THE PETITION

A. The Ninth Circuit Exceeded Its Authority In

Granting A Certificate Of Appealability On An

Issue That Had Not Been Raised In Prior State

Or Federal Court Proceedings

B. The Ninth Circuit Failed To Adhere To The

Limits Congress Imposed, Through AEDPA, On

Federal Habeas Corpus Review By Allowir._ A

Habeas Petitioner To Develop Facts To Support

A Claim When The Petitioner Never Attempted

To Develop Those Facts In State Court

C. The Ninth Circuit’s Designation Of An Eighth

Amendment Claim Contravenes This Court’s

Decision In Lockyer v. Andrade

CONCLUSION

Page

11

13

18

TABLE OF AUTHORITIES

Cases

Barnett v. Hargett

174 F.3d 1128 (10th Cir. 1999)

Belgarde v. Montana

123 F.3d 1210 (9th Cir. 1997)

Bradshaw v. Richey

i a

2005 WL 3144332 (November 28, 2005)

Brown v. Payton

eo

125 S. Ct. 1432 (2005)

Cacoperdo v. Demosthenes

37 F.3d 504 (9th Cir. 1994)

Carey v. Saffold

$36 U.S. 214 (2002)

Carpenter v. Vaughn

296 F.3d 138 (3rd Cir. 2002)

Dretke v. Haley

541 U.S. 386 (2004)

Ewing v. California

538 U.S. 11 (2003)

iV

TABLE OF AUTHORITIES (continued)

Hobbs v. Blackburn

752 F.2d 1079 (Sth Cir. 1985)

cert. denied

474 U.S. 838 (1985)

Holland v. Jackson

542 U.S. 649 (2004)

Hormel vy. Helvering

312 U.S. 552 (1941)

Johnson v. Puckett

176 F.3d 809 (Sth Cir. 1999)

Kane v. Garcia Espitia

oS

126 S. Ct. 407 (2005)

Lockyer v. Andrade

538 U.S. 63 (2003)

Mayle v. Felix

Rt: me

125 S. Ct. 2562 (2005)

Miller-El v. Cockrell

537 U.S. 322 (2003)

P=rker v. Champion

148 F.3d 1219 (10th Cir. 1998)

Ramirez v. Castro

365 F.3d 755 (9th Cir. 2004)

Page

12

7, 13-17

6, 13, 14, 16, 17

TABLE OF AUTHORITIES (continued)

Reyes v. Brown

399 F.3d 964 (9th Cir. 2005)

Rose v. Lundy

455 U.S. 509 (1982)

Rummel v. Estelle

445 U.S. 263 (1980)

Schriro v. Smith

ek. ee

126 S. Ct. 7 (2005)

Singleton v. Wulff

428 U.S. 106 (1976)

Slack v. McDaniel

529 U.S. 473 (2000)

Soiem v. Helm

463 U.S. 277

Thomas v. Arn

474 U.S. 140 (1985)

United States v. Denogean

79 F.3d 1010 (10th Cir. 1996)

United States v. Frady

456 U.S. 152 (1982)

United States v. Smith

915 F.2d 959 (Sth Cir. 1990)

Page

6, 11-14, 16, 17

15, 16

16

vi

TABLE OF AUTHORITIES (continued)

Page

Williams v. Taylor

529 U.S. 420 (2000) 12

Woodford v. Garceau

538 U.S. 206 (2003) 10

Constitutional Provisions

United States Constitution

Eighth Amendment 2, 5-8, 11-17

Statutes

28 U.S.C.

§ 1254(1) I

§ 2253 7

§ 2253 (c) pe

§ 2253(c)(2) 7

§ 2254 2,4

§ 2254(d)(2) 11, 13

§ 2254(e)(2) 11-13

Antiterrorism and Effective Death Penalty Act

Pub. L. No. 104-132, 110 Stat. 1214 (1996) 4,7, 11

California Penal Code

§ 667.5(c) 15

§ 1192.7(c) 15

Vil

INDEX TO APPENDICES

APPENDIX A

Judgment of United States Court of

Appeals For the Ninth Circuit

APPENDIX B

Opinion of United States Court of

Appeals for the Ninth Circuit

(Ramirez v. Terhune, case no. 01-55624)

APPENDIX C

Opinion of the United States Court of

Appeals for the Ninth Circuit

(Reyes v. Brown, case no. 00-57130)

APPENDIX D

Order of the United States Court of

Appeals for the Ninth Circuit

APPENDIX E

Application for Certificate of

Appealability, United States Court

of Appeals for the Ninth Circuit

APPENDIX F

Order of the United States District Court,

Central District of California, Denying

Certificate of Appealability _

APPENDIX G

Judgment of the United States District Court,

Central District of California

21

24

31

33

APPENDIX H

Order of the United States District Court,

Central District of California, Adopting

Findings, Conclusions and Recommendations

of United States Magistrate Judge

APPENDIX I

Report and Recommendation of United

States Magistrate Judge, United States District

Court, Central District of California

APPENDIX J

California Court of Appeals, Fourth

Appellate District, Division Two Opinion

IN THE SUPREME COURT OF THE UNITED STATES

No.

JOHN DOVEY, Dircctor of California Department of Corrections,

Petitioner,

Vv.

RAYMOND RAMIREZ, Respondent.

Petitioner John Dovey respectfully petitions for a writ of

certiorari to review the judgment of the United States Court of

Appeals for the Ninth Circuit in this case.

OPINIONS BELOW

The judgment and opinion of the Ninth Circuit (Apps. A

& B) are unreported. The Ninth Circuit’s Order granting a

Certificate of Appealability is App. D. The District Court’s

Order denying a certificate of appealability is App. F. The

judgment and order of the district court denying habeas relief

(Apps. G & H) are unreported. The magistrate judge’s report

and recommendation (App. I) is unreported. The California

Court of Appeal’s opinion (App. J) is unreported.

STATEMENT OF JURISDICTION

The opinion of the Ninth Circuit was filed on May 13,

2005. A petition for rehearing en banc was denied on

September 6, 2005. The jurisdiction of this Court is invoked

under 28 U.S.C. § 1254(1).

RELEVANT CONSTITUTIONAL

AND STATUTORY PROVISIONS

The Eighth Amendment to the United States Constitution

provides:

Excessive bail shall not be required, nor excessive fines

imposed, nor cruel and unusual punishments inflicted.

28 U.S.C. § 2253 (c) provides in pertinent part:

(c)(1) Unless a circuit justice or judge issues a

certificate of appealability, an appeal may not be taken to

the court of appeals from—

(A) the final order in a habeas corpus proceeding in

which the detention complained of arises out of process

issued by a State court; or

(B) the final order in a proceeding under section 2255.

(2) A certificate of appealability may issue under

paragraph (1) only if the applicant has made a substantial

showing of the denial of a constitutional right. .

(3) The certificate of appealability under paragraph (1)

shall indicate which specific issue or issues satisfy the

showing required by paragraph (2).

28 U.S.C. § 2254 provides in pertinent part:

(d) An application for a wnt 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 application cf, 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 facts in light of the

evidence presented in the State court proceeding.

(e)(1) In a proceeding instituted by an application for a

writ of habeas corpus by a person in custody pursuant to

the judgment of a State court, a determination of a factual

issue made by a State court shall be presumed to be

correct. The applicant shall have the burden of rebutting

the presumption of correctness by clear and convincing

evidence.

(2) If the applicant has failed to develop the factual basis

of a claim in State court proceedings, the court shall not

hold an evidentiary hearing on the claim unless the

applicant shows that-

(A) the claim relies on-

(i) a new rule of constitutional law, made retroactive to

cases on collateral review by the Supreme Court, that wa.

previously unavailable; or

(ii) a factual predicate that could not have been

previously discovered through the exercise of due

diligence; and

(B) the facts underlying the claim would be sufficient to

establish by clear and convincing evidence that but for

constitutional error, no reasonable factfinder would have

found the applicant guilty of the underlying offense.

STATEMENT OF THE CASE

A California jury convicted Raymond Ramirez of

possession of methamphetamine and of being under the

influence of methamphetamine. The trial court sentenced

Ramirez to state prison for 25 years to life under California’s

Three Strikes Law because he had two prior qualifying felony

convictions. App. I at 37-39; App. J at 45-46.