Opposition Brief — Tilton v. Ramirez (No. 05-736)

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ORIGINAL

No. 05-736

Supreme Court, U.S.

FILED

MAY 5 2006

OFFICE OF THE CLERK

—_

- "~~ ©

IN THE SUPREME COURT OF THE UNITED STATES

JEANNE S. WOODFORD, Acting Secretary,

California Department of Corrections and Rehabilitation,

Petitioner,

-V.-

RAYMOND RAMIREZ,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR RESPONDENT IN OPPOSITION

SZAN K. KENNEDY

A.cting Federal Public Defender

Central District of California

JONATHAN D. LIBBY

Deputy Federal Public Defender

Central District of California

Counsel of Record

321 East 2nd Street

Los Angeles, California 90012

(213) 894-2905

Counsel for Respondent

The petition presents the question whether a federal court of

appea's has 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 proceedings and did not raise in his

request for a certificate of appealability. However, as we explain

in this brief, that question is not in fact presented by this case since

the claim was fully exhausted in state court prior to the Nintn

Circuit’s decision, and the Ninth Circuit merely determined that the

claim had been sufficiently raised after liberally construing the pro

se filings as this Court said it must do.

The petition presents the question whether it violates the

limitations of 28 U.S.C. § 2254(e)(2) to permit a habeas litigant 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 challenge in the state court. However as we

explain in this brief, that question is not in fact presented by this

case since those ‘acts may have been developed in state court and

the Ninth Circuit decision does not require a violation of §

2254(e)(2).

Whether any prisoner who has received a life sentence under

California’s Three Strikes law can ever be granted relief in federal

habeas corpus on the ground that his sentence violates the Eighth

Amendment’s proscription on cruel and unusual punishment, in

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

I P IE

‘The original parties in the district court and the Ninth Circuit were Raymond Ramirez and

cal | Terhune, then-Director of the California Department of Corrections. Jeanne S. Woodford,

Meting Secretary of the California Department of Corrections and Rehabilitation, has been

Gubstituted for Mr. Terhune as petitioner in this Court. Mr. Ramirez is the respondent in this

Co yur

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STABLE OF AUTHORITIES

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State Court Proceedings

Federal Habeas Corpus Proceedings

Court of Appeals Proceedings

There is no need for this Court to review the question whether a

federal court of appeals has 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 proceedings and did not

raise in his request for a certificate of appealability because (1) the

claim was fully exhausted in state court prior to the Ninth Circuit’s

decision, and (2) the Ninth Circuit properly determined that the

claim had been sufficiently raised after liberally construing Mr.

Ramirez’s pro se filings as it was required todo. ...... _ Maa eee aveeee 7

iil

TABLE OF CONTENTS (Cont’d)

Page

There is no need for this Court to review the claim that ii violates

28 U.S.C. § 2254(e)(2) to permit a habeas litigant to develop facts

underlying his prior convictions as part of an Eighth Amendment

claim when he never attempted io develop those facts as part of

such a challenge in state court because (1) the claim is premised on

an assumption that Mr. Ramirez did not attempt to develop facts

underlying his prior convictions in su... sourt, but the record

suppcrts no such premise, (2) by rermanding the case to the district

court for additional fact development and to determine whether

relief should be granted in the first instance, the Ninth Circuit has

done nothing that violates any statute or conflicts with any

precedent, and (3) the proper forum for the state to litigate this

claim is m the district court, not this Count... 0... ccc cccctcccvccvvcnce 14

There is no need for this Court to review the question whether in

light of Lockyer v. Andrade, federal habeas corpus relief cannot be

granted on cruel and unusual punishment grounds on any

California three strikes sentence since (1) this Court in Andrade

- explicitly held that such relief could be granted in an “exceedingly

rare” and “extreme” case, and the Ninth Circuit has not held

otherwise, and (2) the Ninth Circuit has not granted habeas relief in

the instant case, or even indicated that such relief should be

granted, thus it would be premature for this Court to step in at this

RETA RRS ADE NOLES eg: etic ir 9p Rete NB greg Rise Dep ie eae ape OO ee CIID OR 18

ect TEE EE De ECD NSE TT EET ON aE Pe OE Me Pr so ROR PES 29

TABLE OF AUTHORITIES

Page

‘ PE DE ASES

ilar v. Ayers,

er i ARE Fhe Gry, JOON i hsb ii ERs ee keeakieieeceds (ee aea Vashon 23

irre v. Hubbard, -

Seen MO ORE i'd a's dike we csly bea b hapa eR ecw a beeu rawr 21

irre v. Lewis,

ee es Se Ee EE SF ihn o'p Cre bop hehe a ee LEU a oe ed hls Bak 24

Alfred v. Galaza,

Se As ee A I oo ooo os heh haus 4 Oh Ee Sheu wee bashast aa

Allen v. Roe,

es SL Oe a EE abs 60 FRAG hk ea eta Tt eiateavandce be 23

Amico v. Alameida, ;

See I FO CE CG oon oop Can Rh ine FUSE eO ADRS bee ee eb EEA ae 22

Anderson v. Clarke,

Oh PO My SECs BONO) bbc ceecewhestderenbseed’ ei ecw ee AGRE 25

Anderson v. Lamarque,

ee aT Ces UD oe bn ech See ok Lae WEE Re hie et ba Eee eS 22

Andrade v. Attorney General of the State of California,

Pe a Bik ESN hoe sea hide phos Ree heROhETe Co ba ban 10

Andrews v. Lewis,

ae PO BD CEG BOE. och eS 8 BE RES RE od te 24

Bailey v. Castro,

Se Hc TORII GS iin nck ode a bck ka woods iden te ceewan 24

Barnett v. Hargett,

kg gee fe) 8 ean’ Bete a DSA? LAs WE a epee Ie ae 9

A TIES "d

Page

.v. Roe,

ae Sey Tae CE SIs EE 6 x5 bc i eereacwd wan eeeececeusbxetinieuh 24

ny 3 wv. €

ne” NS a i a iS ee 19

. scoter v. M

YC hee aCe HO eee 24

B lanton v. Terhune,

Mien dees, RELY ON a ee ee 23

| Bonner F Cambra, y

eek hook: MI GNCE MOO..... ok ee ee 22

Bryant v. Adams,

83 Fed. Appx. 260 (9th Cir. 2003),

ont denied SOLUS: 1IOMO ©2652 ee See 2

Butler v. Hernandez,

i ie RNR Ee PIR ope a aera: AMIE at graesa NRi N 22

Caliendo v. Warden of California Men's Colony,

353 F.3d 1147 (9th Cir.),

opinion withdrawn and superseded on denial of rhrg., 365 F.3d 391 (2004) ......... 22

lark v. Lamarque,

ek ny Us Se EN NUD os vb S86 av WSS 0G Fhe he ee EES 22

Clarke v. Galaza,

Fa es SO Os Rs ND 6 3s 84k KES b Ab oy ces hea kas Noe aL week 23

Clayton v. Fairman,

Fe SL, SAO Ge EE oo oo vs vk Kets eh Oke hee beh Od i ee se 23

TABLE OF AUTHORITIES (Cont’d)

Page

D CASES

Collins v. Pliler,

a es Se I ES IG os cs i de oe bo kkk Sire dee Uhh oe cee w eas 25

Cvok v. Galaza,

Oe ee, WR I it ok bo hail okie eee wee as 24

Crawford v. Small,

Se Oe I EE ob dine ko Say hale Kak Rd phe ee a edo 22

Crutcher v. Garcia,

131 Fed. Appx. 116(9th Cir. 2005) ..... hich ede Reeves coed be eae A ee Boeke 21

Dodd v. Terhune,

ee S00 rE ls OE i ooo hoa bea es deve eah oie dans MDs 23

Duenas v. Galaza,

Ss Fe Ree ONES ks Sos wes So wi Locos kad whee co kebl ebb 22

Earle v. Runnels

No. 05-15739, 2006 WL 1049733 (9th Cir. Apr. 21, 2006). .................000. 21

Ewing v. California,

A ee Es ck a 64d Sa od ares Meee has Uae eo eed aod Be ks 19

Franklin v. Hightower,

ae ae Re bs oh oo an heed is chow ebek ds eGov adeiiws 12

French vy. Duncan,

No. 0457067, 2006, WL 679932 (9th Cir. Mar. 15, 2006) ..................0.0-- 21

Gayles-Shealy v. Adams,

FR Se EE Bn io Ea we ET 23

Gonzales v. Terhune,

Oe es Se Pe Gy Bk boa cs a kv sp chad dnn HAL kbd cakes 22

Grayson v. Castro,

68 Fed. SF Pes SUES i die go Ba Ew OR REA OK ede ee aloes 23

Vii

T OF AUTHORITIES (Cont'd

Page

D ASES

(@) V. Ratell >

ey Ss So ie hiro o'gk odo Si ced oe 6 dk OM oD WkS eee cede 24

an v. Adams

Pe i ees nos ebook ewer awh ark ns 22

i es V. Kemer,

ee ee RMR Rat EIN Mee LOS TE Tir RU Gets eae Pe eet ges ec ee 9

Hall v. Bellmon,

ne es ee OE es ED oy is x kbd ud Koen me EO bas eee een. 9

Harmelin v. Michigan,

UN NE PE rer aks aes ree a eee se I Serre 18, 26

Hermandez v. Almeida,

146 Fed. Appx. 934 (9th Cir. 2005) ............ Pe POE os SORIA Be) BES DME aE 21

Holland v. Jackson,

ee ee CN iss cai s Cah done Soe ee Ls 14

Holland v. Jackson,

Ue ee is Gas aes 6b SO Cw Co owde ewok pa ee owe ea EE 17

Huegerich v. Lamarque,

78 Fed. Appx. 610 (9th Cir. 2003) .......... ok heh REC R ae DE ORELE OEE 23

Johnson y. Finn,

ee ees NE Re CC ND see is La eek be aun k ve lk eee 24

Johnson v. Mueller,

FR Be CT ND 6 5 oo dls hao bos bk bs ob bbs hee ae 23

Johnson v. Pliler,

62 Fed. Appx. Pe ee I ir ou hao is has dado ae gad bad wom kT EK cae 24

Jones y. Castro,

SEs I Re I is ia kok ede hk ic hdl be es BR 22

T OF AUTHORITIES td

Page

fEDERAL CASES

jones v. Taylor,

ey IS EE vig Cea cGe celal ea dea dewadess vheckdecd 24

Joseph v. Lewis

Se es Ce ED 9b wh Elbo tH ecacdcdeddie oubccbose Véveckaee, 22

Kenyatta v. Stewart,

152 Fed. Appx. 616 (9th Cir. 2005) ........ dens ae Ceelaveruekesdvkevwnw bas 25

King v. Clarke,

Cr I F605 ad deeds wines Oeoeuetn deh jameboecucs, 24

Kunkle v. Galaza,

ee Se Ce GUA Din Bi 0c He we RK Whee Uk awe a Seadoo 24

LaCroix v. Harris,

139 Fed. Appx. 866 (9th Cir. 2095) .............. Mit od aNee aa leer eee us Sek 21

LaCroix v. Harris,

Te FE Se: OUI i nen 6.00 etek i had weeks bak nbn eB

Le v. Castro

ee i eo hn S cs bos citer bu wb baw Uolde vb Ge on Gawcen 25

Lockyer v. Andrade,

ee aah Dis Cas Wabi cad seb co hccdiwelobaewervcadboon. passim

Lucidore v. New York State Division of Parole,

209 F.3d 107 (2d Cir.),

Cort demed, 531 U.S. S73 (OOO) oon nck cen ccc cewscecs cleo cy Waa k we-om 12

Marshall v. Clark, ;

Fae PUNE O71 CE, GOD was bon cb y Sobek baci ly paving wx ans a halons 23

Mason v. Hamlet,

a I i ob ok ceed cob cue Wow ond coeur lea wees 22

TABLE OF AUTHORIT "d

Page

D ASES

‘Her-El v. Cockrell

en 6s Ske nes bane Vi Wlh vio'h aatek ab bs wd ae be ee eed mae 7

organ v. Rice ;

ee AL, DEG CE OD cn vec ca eons hee L eR ua dess vee bub cue saenwean 24

Nible v. Terhune,

119 Fed. Appx. 53 (9th Cir. 2004) ..... ba eiae Monies Oh abs ee bat haa ekes baa 22

Nutt v. Knowles,

145 Pod. Apon. 221 (9th Cir. 2005) ... ecic ce pec cccvccess CEPR Petpet hege A 21

v. Bo

Bee eae RT PED os b's bo oR KERN A Seb os betwee wks Neate 12

Pena v. Terhune,

77 Fed. Appx. 935 (9th Cir. 2003) ................. ahaa tds ena Leeann 23

Porterfield v. Bell,

EE, NES wo soax Wi 4 Sue dat ove edewedk Jabwen dee ob cceb ean 12

Prince v. Adams,

es Fs Pe Ce Gls BOON. os V ccncsl ove a ve Seeds dw hw kane es kewbdsbeeus 22

Quinones v. Garcia,

PN Be Oe Gls Nae nn ua hve do 0a bebeodw dbo Mid tek bo eer deve. 22

Ramirez v. Castro,

365 F.3d 755 (9th Cir. 2004) ........ Ficd ete Gn Gu whind iaceho bile kee clk 20, 27

Reed v. Roe,

Pe ee, Di SOE CA, DOD 5 ono oo kc ks Sc ace cacekncbuk be bE 23

Reyes v. Brown,

ie SIE IEE. Sch os i Wire ba es cess hed bans Sadie eenseN 7, 14, 15, 20

Rico v. Taylor,

Ee Sc CE CE as EE hoe es wo re sO WAS ba oP OUEKKA LaLa ess 21

TABLE OF

FED CASES

Rico v. Terhune,

63 Fed. Appx. 394 (9th Cir. 2003)

arci

390 F.3d 1982 (9th Cir. 2004)

Rios V.

Robinson v. Califomi

370 U.S. 660 (1962)

—

Robinson v. Lewis,

62 Fed. Appx. 188 (2003)

“SVaeeee nn es fs

Robles y. Clarke,

61 Fed. Appx. 483 (9th Cir. 2003)

“eer eee

Rodriguez v. Lewis,

132 Fed. Appx. 134 (9th Cir. 2005)

"eee.

Romero v. Galaza,

61 Fed. Appx. 492 (9th Cir. 2003)

“eee ee

Rummel v. Estelle,

445 U.S. 263 (1980)

Samuel v. Lewis,

62 Fed. Appx. 190 (9th Cir. 2003)

ee ee |

Schwartzmiller v. Gardner,

752 F.2d 1341 (9th Cir. 1984)

Sharpe v. Buchanan,

317 U.S. 238 (1942)

Shirley v. Small,

68 Fed. Appx. 117 (9th Cir. 2003)

“eee eee

a a |

oe eceeeseeereseoereeseeeeeeesesesaeseese eens

Ce a 7

ee |

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ooo e rere eee eee eee eee see seeeeeer eens nee

RITIES (Cont’

Page

eee ee eer eee reer eer ese eee eres eee eeeees

eevee ereersr eer ease esses eresr eer eeeeseseseeses

TABLE OF AUTHORITIES (Cont’¢)

Page

FEDERAL CASES

Sigala v. Campbell,

Se PL SN CAS GOED. os & cba ea APR S6 ORK RKRERT ED Oded Oe bowers 21

Singleton v. Wulff,

ME EIED coe Valas cu ee cdo dba e a Cease Cakes bieeea hho + oe Ea pe diesem ata 10

Skinner v. Roe, ;

er PRU ND = 5S hea y osd pooh wee he 804 ev Rede who DAs woe 21

lack v. McDaniel,

Ee I ho dg oO |b Ann Oi) cob Wit beak we Me Po eck eenk tawny 7, 11

Smith v. Giurbino,

ra a TI ke ee 23

Solem v. Helm, ;

SM BET LNPOAD 6 son ci Sindh Genk rb ude bh Tec ces ceeded ne ae eceietee cok 18, 26, 28

Sonnier v. Johnson,

DE re ee Re els ND oo bia w.0 bNE ve ba okie sod wewuad® ee hain bl ble 8 hi i3

Soto v. United States,

Se er ES BIS oid oa's 6 nce en AR CAE WED Re Sha KewR ees 13

Taylor v. United States,

eG ee CEES a had AND KS CEE RAGE OE Oe Ot PC ERTC aC ae heh eee RS 27

Thomas v. Clarke,

ee es NR IEEE ss Gan es aeawern ret berehabadiddneeanie res 24

Tolbert v. Roe,

er ee Ps I RS oy 8 Ss ds boys die Re Fear ee kde tone wie we DA

Tumer v. Candelaria,

er en Ly Oe I os ov su deus och en aca Fel bee bi bc whe enwalbes 24

United States v. Marcello,

ee EE PE IE so Pd ace ko Si ee tO la dd hae ek eaves hake 12

TABLE OF AUTHORITIES (Cont’d)

Page

ASES

Fe I CIC IO oan asda ncvaxtncodesscohsoudevaeeten anny 23

v. Lewis,

62 Fed. Appx. 186 (9th Cir. 2003) ............0. 00 ue. ste hp wee vad ewanide eas 24

Vv. eT,

Sr Fs GP Gee SUN o 6 vccvccndcoveeviowinesduhucdiwsndeandacas 21

Wallace v. ler,

Se ee PE, ee Ga BEE oc obvn vnc oni eo Whe ure baleedhe tere dbcs teres 23

Walters v. Fairman,

es eh BE re Oi AE on 0 ba Nv euduscon coe eusevbury bebeseechaanke 24

Webb v. McGrath,

SEs Ss Hk SC SO o 5h cba ds ped cas coboneecdnusiicetastebba. 21

Webb v. Ylst,

Ss IE, FR OO 6 0 hb 0 owes bo CRE kehwen dad tan dectesceno tens’ 23

Weems v. United States,

217 U.S. 349 (1910) ....... dads onan bdbexbénddeudnbeed idles 28

Williams y. Galaza,

FeO Ss Fae IG BOUED 6 boa ccdiv dpctesinbovestdedbacahcentesenstes 23

Williams y. Taylor,

Se SEE cc nveneécaschsdévuskvedensunsdadienedaeewde 14, 16, 19.

Wrobleski y. Guirbino,

GES Ded, Aer CONG DOOD. os 5s cco ceca do cache don be dcnauddcweal 22

STATE CASES

re Cervera,

24 Cal.4th 1073, 103 Cal.Rptr.2d 762 (2001) .... 2... c cece eee c ce ccccuccueeucss 4

xill

TABLE OF AUTHORITIES (Cont'd)

Page

" STATE CASES

5 le v. Superior Court (Romero),

ST NUE cwacige's ahs Gud Gnke ave ae OUbbes daKESES ck TR hawks 5

~ FEDERAL STATUTES

SE EE Aon 6 ds sadn ed eee cncesdeud’ ocabarddh id sban deen else cbbkumeecius 3

ES Oe i a eg dee eae ae PSR Sas Oy MOE es 1, 3,7,8

Oe oS ee ee ea eee 18, 19

TRI oo ger a eran ee siete 14

ee PD 20 bd aN ed nGabbnw dacs cs ded eavennelttapiteeak 1, 2, 14, 15, 16

STATE STATUTES

Cal. Health & Safety. Code § 11377 ....... RWAPUC NOUR baba ds evo arbhe eke heuer vaca

I i ie ae se re lh ee 4

BT Bg a RRR id MR oie Beg GSP MRM RE eM Rg OL aS 5

ae in 8 ii a ee ee ae ce

Pe RSD ccc curiae ah nvce «ails hedeseieaeose bus cuieech dot cece 5

eae ees Seki ch te NREL EOL tae hee Se 4

Cal. Penal Code § 667.5(b) .........-.---. jad Wa Laue eet inet ae cE oiee. ae

AU Oe te ares oe et Oo 4

XiV

IN THE SUPREME COURT OF THE UNITED STATES

No. 05-736

JEANNE S. WOODFORD, Acting Secretary,

California Department of Corrections and Rehabilitation, -

Petitioner, ,

-V.-

RAYMOND RAMIREZ,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR RESPONDENT IN OPPOSITION

Petitioner presents three questions it asks this Court to review. This Court should decline

review of all three. The first claim petitioner raises — that a federal court of appeals has no

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 proceedings and did not raise in his request for a certificate of appealability —

should not be reviewed because (1) Mr. Ramirez’s Eighth Amendment claim was fully exhausted

in state court prior to the Ninth Circuit’s decision, and (2) the Ninth Circuit properly determined

that the claim had been sufficiently raised in Mr. Ramirez’s petition and certificate of

appealability after liberally construing Mr. Ramirez’s pro se filings as it was required to do under

this Court’s precedents.

Petitioner’s second claim — that it violates the limitations of 28 U.S.C. § 2254(e)(2) to

permit a habeas litigant to develop facts underlying his prior convictions as part of an Eighth

: “amendment claim when he never attempted to develop those facts as part of such a challenge in

2 state court — need not be reviewed by this Court because the issue is simply not presented in this

ia Petitioner’s claim is premised on an assumption that Mr. Ramirez did not attempt to

develop facts underlying his prior convictions in state court and may not do so now. But the

record supports no such premise. To the contrary, the record suggests that such fact development

did occur in the state court but was not included in the record before the Ninth Circuit. Either

way, all the Ninth Circuit rather unremarkably has done in this case is to say it cannot properly

review the Eighth Amendment claim raised by Mr. Ramirez because the record before it is

incomplete, and to remand to the district court to allow it to develop the record further and to

determine in the first instance whether Mr. Ramirez is entitled to relief. Should the state have a

legitimate argument for why Mr. Ramirez should be precluded from adducing such evidence, it

may raise it and litigate it before the district court. There is no reason for this Court to address a

claim that may not exist.

With respect to petitioner’s third claim — that in light of Lockyer v. Andrade, federal

habeas corpus relief cannot be granted on cruel and unusual punishment grounds on any

California three strikes sentence — review should be denied because (1) this Court i: Andrade

explicitly held that such relief could be granted in an “exceedingly rare” and “extreme” case, and

the Ninth Circuit has not held otherwise, and (2) the Ninth Circuit has not granted habeas relief

in the instant case, or even indicated that such relief should be granted, and there is no need for

this Court to step in at this time.

Accordingly, because this Court does not sit to issue advisory opinions nor to engage in

error correction, the petition for a writ of certiorari should be denied.

OPINION BELOW

The opinion of the United States Court of Appeals for the Ninth Circuit (Pet. App. B2-

B3) is not reported in the Federal Reporter. It can be found at 128 Fed. Appx. 663 (9" Cir.

2005).

JURISDICTIO

The opinion and judgment of the court of appeals was filed ms May 13, 2005. A petition

for rehearing en banc was denied on September 6, 2005. This petition for a writ of certiorari was

filed on December 5, 2005. This Court’s jurisdiction is invoked under 28 U.S.C. § 1254(1).

STATEMENT

Factual Background.

On September 30, 1995, Ontario, California, police officers Michael Bors and Douglas

Reed were on bicycle patrol. At approximately 9:00 p.m., Officer Bors saw a red Camaro drive

into the parking lot of the Western Inn Hotel. Raymond Ramirez got out of the wie seat on the

driver’s side and walked into the lobby; the vehicle left the parking lot. Approximately 30

seconds later, Ramirez exited the hotel and walked to a pay phone. After he left the pay phone,

Ramirez was stopped by the officers. They askec: him if he would talk to them; Ramirez agreed.

(ER 8-9).' Officer Bors observed that Ramirez's speech was rapid and his pupils appeared

dilated and his lips dry and caked. Bors believed Ramirez was possibly under the influence of a

“ER” followed by a number refers to the applicable page in the Excerpts of Record filed

in the Ninth Circuit. “SER” followed by a number refers to the applicable page in the

Supplemental Excerpts of Record filed in the Ninth Circuit.

controlled substance. Asked if he had used any speed or cocaine, Ramirez responded that he had

used methamphetamine within the last few hours. (ER 10-11).

Following this admission, Ramirez was arrested and searched. In his left front pants

pocket, the police found a small plastic bag containing a small amount of amphetamine,

qqqrecimustaly 0.29 gram in weight. (ER 11- 12, 13-14). Officer Bors testified that this amount

was sufficient for use and had a street value of approximately $30.00. Blood tests of Ramirez

revealed traces of amphetamine and methamphetamine. (ER 15-16).

Under California law, possession of a controlled substance is referred to as a wobbler. It

can be sentenced as either a misdemeanor or a felony. Punishment can range from less than one

year in a county jail or up to three years in a state prison. Cal. Health & Safety. Code § 11377(a);

Cal. Penal Code § 18. Nevertheless, under California’s Three Strikes law, the possession charge

became the basis for imposing a sentence of 25 years to life on Ramirez. Cal. Penal Code §§

667(b)-(i), 1170.12(a)-(d).? Ramirez has two prior felony convictions, both for the non-violent

offense of burglary.

State Court Proceedings.

On November 1, 1995, a two-count information was filed in the San Bernardino County

Superior Court charging Raymond Ramirez with possession of 0.29 gram of methamphetamine,

in violation of Cal. Health & Safety Code § 11377 (a), and with being under the influence of

*California’s Three Strikes law consists of two substantively identical sentencing statutes.

Both were enacted in 1994, one by the California Legislature, Cal. Penal Code § 667(b)-(i), and

the other by ballot initiative, Cal. Penal Code § 1170.12. See generally In re Cervera, 24 Cal.4th

1073, 103 Cal.Rptr.2d 762 (2001). Under the law, defendants with prior qualifying convictions

(“strikes”) are subjected to longer terms of imprisonment than those without such prior

convictions. Id. at-179.

* +

‘methamphetamine, in violation of Cal. Health & Safety Code § 1 1550(a). The information also

- alleged two prior convictions in violation of California’s “Three Strikes” law, Cal. Penal Code §§

11.70.12(a)-(d), and 667(b)-(i). The same prior convictions were also alleged as prior prison term

enhancements under Cal. Penal Code § 667.5(b). (ER 3-4).

Following jury trial, Mr. Ramirez was found guilty as charged on both counts and the

prior conviction allegations were found true. (ER 17-19).

At sentencing on May 15, 1996, Mr. Ramirez moved to have the court reduce the felony

conviction to a misdemeanor in the interests of justice pursuant to Cal. Penal Code § 17(b)(5).

This motion included the contention that a sentence of 25 years to life constituted cruel and

unusual punishment under both the United States and California Constitutions. The court denied

Ramirez’s motion, (ER 20), and sentenced him pursuant to the Three Strikes law to 25 years to

life in prison. (ER 21). :

Mr. Ramirez appealed. In an unpublished opinion filed on July 30, 1997, the California

Court of Appeal, Fourth District, Division Two, affirmed the conviction, but icaiel the case

for the sentencing court to exercise its discretion pursuant to People v. Superior Court (Romero),

13. Cal.4th 497 (1996). At resentencing after remand, the judge noted that Ramirez’s

non-violent, mostly misdemeanor criminal activity seemed “to be almost exclusively drug

related.” (ER 23). The probation department submitted an amended probation report

recommending that the court dismiss one of the prior felony conviction strikes so that Ramirez

would not face a Three Strikes sentence. Probation noted that the instant offense was relatively

minor and that a sentence of 25 years to life appeared to be “extreme.” (ER 24). Despite the

probation department’s recommendation, the court resentenced Ramirez as a third striker.

Mr. Ramirez appealed again. In an unpublished opinion filed on July 16, 1999, the

California Court of Appeal affirmed the resentencing in all respects. On September 22, 1999, the

California Supreme Court denied Ramirez’s petition for review. Mr. Ramirez is now serving 25

years to life in prison, and may likely spend the rest of his life there.

On March 11, 2002, Mr. Ramirez filed a petition for writ of habeas corpus in the

California Supreme Court, in which he argued that his sentence was cruel and unusual

punishment in violation of the Eighth Amendment. (SER 18-58). On November 13, 2002, the

California Supreme Court denied the petition. (SER 59).

F i Co edi

On April 4, 2000, Mr. Ramirez filed a pro se petition for writ of habeas corpus in the

United States District Court for the Central District of California. (ER 25- 58). In that petition,

Ramirez challenged the Three Strikes sentence imposed and claimed that the resentencing court

failed to consider all of the relevant factors when it decided not to dismiss one of his prior

strikes. That petition was dismissed with prejudice on January 24, 2001. (ER 59).

Court of Appeals Proceedings.

Mr. Ramirez appealed. The district court denied Ramirez’s application for a Certificate

of Appealability, but the Ninth Circuit granted a COA and appointed counsel on November 13,

2001. (ER 63-64, 65-66). The certificate of appealability was granted on iwo issues: (1) Does

[Ramirez]’s sentence of 25 years to life for possession of 0.29 grams (less than 0.01023 ounces)

of methamphetamine violate the Eighth Amendment? and (2) Has [Ramirez] exhausted this

issue? (citing Schwartzmiller v. Gardner, 752 F.2d 1341, 1344 (9" Cir. 1984) (exhaustion

Satisfied if claim presented to highest state court before this court decides the appeal)). (Pet.

App. D21-D22).

In an unpublished decision, the Ninth Circuit remanded the case to the district court for

consideration of Mr. Ramirez’s Eighth Amendment claim under Reyes v. Brown, 399 F.3d 964

(9* Cir. 2005). (Pet. App. B2-B3). In Reyes, the court ordered a remand in order for the district |

to engage in additional fact development on the circumstances surrounding petitioner’s prior

convictions and for the district court to determine in the first instance whether he was entitled to

relief. See Reyes, 399 F.3d at 969-70.

ARGUMENT

There is no need for this Court to review the question whether a

federal court of appeals has 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 proceedings and did

not raise in his request for a certificate of appealability because

(1) the claim was fully exhausted in state court prior to the Ninth

Circuit’s decision, and (2) the Ninth Circuit properly determined

that the claim had been sufficiently raised after liberally

construing Mr. Ramirez’s pro se filings as it was required to do.

In order to obtain a certificate of appealability (“COA __ a prisoner must make a

“substantial showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), and

demonstrate that reasonable jurists could disagree with the district court’s resolution of his

- constitutional claims or that the issues presented warrant encouragement to proceed further. See

Miller-El v. Cockrell, 537 U.S. 322, 327, 336 (2003) (citing Slack v. McDaniel, 529 U.S. 473,

481, 483, 484 (2000)). “The COA determination under § 2253(c) requires an overview of the

Claims in the habeas petition and a general assessment of their merits.” Id. at 336. Although the

COA should not always issue, and the “issuance of a COA must not be pro forma or a matter of

course,” a prisoner seeking a COA need only prove “something more than-the absence of

frivolity’ or the existence of mere “good faith’ on his or her part.” Id. at 337-38 (quoting

Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). This Court “do[es) not require [a] petitioner to

prove, before the issuance of a COA, that some jurists would grant the petition for habeas

corpus.” Id. at 338.

The state argues here that by issuing a COA in tl. » case on a claim not asserted in prior

state of federal court proceedings, the Ninth Circuit has violated 28 U.S.C. § 2253 and this

Court’s decisions. (Pet. 7-8). The state believes that Mr. Ramirez failed to make a substantial

showing of the denial of a constitutional right, and that it essentially “rewrote Ramirez’s habeas

petition to include an Eighth Amendment claim.” (Pet. 7-8). Thus, with typical melodramatic

rhetoric the state declares that “[o]nce again, the Ninth Circuit has departed far from the

acceptable and usual course of judicial proceedings and the general practice of federal habeas

review,” and “[t}his Court’s intervention and guidance is highly warranted and urgently needed.”

(Pet. 8). But contrary to the state’s rhetoric, the Ninth Circuit did nothing wrong here, and the

issuance of the COA conflicts with neither the law nor any precede.

The entire premise of the state’s argument is that an Eighth Amendment claim had not

been presented in either the state courts or in Mr. Ramirez’s federal habeas petition. The state is

wrong.

Although perhaps inartfully presented in his pro se federal habeas petition, and his pro se

application for a certification of appealability, it is clear that Mr. Ramirez’s complaint was that

his life sentence under California’s Three Strikes law was unconstitutional. (ER 25-33; Pet. App.

F94:E30). Indeed, in his COA application, Mr. Ramirez argued that “a Certificate of

3e.

“appealability should be issued because in a case such as this, where a possible life sentence is in

‘oe balance, would due process and justice be served, by a determination that effects the

sentence, made without weighing all relevant and manditory [sic] factors?” (Pet. App. E26). He

further argued,

Petitioner submits to this court that the primary issue presented

first to the state courts and again to the district court was not

whether, the state court abused its discretion in denying

Petitioner’s motion to strike a prior conviction, but instead, -

whether Petitioner was denied a fundamentally fair hearing and

thereby constitutional due process, when the state court failed to

weigh all and/or equally, mandated factors in arriving at that

decision.

(Pet. App. E27). If drafted by a trained lawyer, then it would be reasonable to argue that no

Eighth Amendment claim had been raised. But Mr. Ramirez is not a trained lawyer.

This Court has made clear that pleadings filed by pro se litigants must be liberally

construed. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972). Notably, the state relies on a

Tenth Circuit case to argue that “a district court should not assume the role of advocate for a pro

se litigant and may not rewrite a petition to include claims which were never presented.” (Pet. 9)

(citing Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999)). But in Barnett, what the Tenth

Circuit explains is that, “the mandated liberal construction afforded to pro se pleadings ‘means

that if the court can reasonably read the pleadings to state a valid claim on which the [petitioner]

could prevail, it should do so despite the [petitioner’s] failure to cite proper legal authority, his

confusion of various legal theories, his poor syntax and sentence construction, or his

unfamiliarity with pleading requirements.” 174 F.3d at 1133 (quoting Hall v. Bellmon, 935 F.2d

"496, 1110 (10th Cir. 1991)). That is all the Ninth Circuit did here in issuing the COA. It did

not rewrite the petition; it merely liberally construed it, and not unreasonably so. Thus, the

sine first premise for seeking review by this Coen simply does not exist.*

Moreover, the state, relying on this Court’s decision in Singleton v. Wulff, 428 U.S. 106,

_ 120 (1976), attacks the issuance of the COA on the ground that “i]t is the general rule .. . that a

federal appellate court does not consider an issue not passed upon below.” (Pet. 8). Assuming,

arguendo, the premise of the state’s argument, the state misreads this Court’s holding in

Singleton. Had the state just continued to the very next paragraph, it would have seen that what

this Court held is “[t]he matter of what questions may be taken up and resolved for the first time

on appeal is one left primarily to the discretion of the courts of appeals, to be exercised on the

facts of individual cases. We announce no general rule. Certainly there are circumstances in

which a federal appellate court is justified in resolving an issue not passed on below, as where

the proper resolution is beyond any doubt, or where ‘injustice might otherwise result.” Id. at

121 (internal citations omitted). Given the Ninth Circuit’s holding at the time that the California

Three Strikes law violated the Eighth Amendment, it was entirely proper for the Ninth Circuit to

grant a COA on the inartfully pleaded Eighth Amendment claim — even though not addressed

*It is important to remember the context in which the COA was issued. The Ninth Circuit

granted the COA just ten days after its decision in Andrade v. Attorney General of the State of

California, 270 F.3d 743 (9th Cir. 2001) — a decision since reversed by this Court in Lockyer v.

Andrade, 538 U.S. 63 (2003) — in which the court held that the California Three Strikes law

violated the Eighth Amendment. The court cited to its Andrade decision in its order granting the

COA. (Pet. App. D21). That the court would liberally construe a habeas petition and COA

request detailing a pro se litigant’s belief that his Three Strikes sentence is unconstitutional as

raising an Eighth Amendment claim was entirely appropriate. To the extent it was error to issue

the COA, that error from many years ago does not in any way demonstrate a continuing failure

on the part of the Ninth Circuit to comply with the habeas laws such that intervention by this

Court would be necessary.

Sijclow - since injustice might otherwise result.‘ _

The state also erroneously maintains that the COA was improperly issued on a claim

fi never raised in the state court, and that the Ninth Circuit was without authority to review an

cr unexhausted claim. (Pet. 8-10). But the COA itself raised the question whether Mr. Ramirez’s

im. ghth: Amei..ment claim has been properly exhausted in state court. It is entirely appropriate

ied

-. for the court to issue a COA on both a constitutional claim and a procedural issue and to allow

“ the parties to argue whether the claim was properly exhausted in state court. See Slack v,

McDaniel, 529 U.S. at 478, 484-85 (determining whether a COA should issue has two

components, one directed at the underlying constitutional claims, and one directed at procedural

matters). Indeed, had the Eighth Amendment claim not been fully exhausted before the Ninth

Circuit reached a decision in the case, then without a doubt the court w suld have been required to

dismiss the = But Mr. Ramirez’s Eighth Amendment was fully exhausted before the Ninth

Circuit reached ° decision in the case, and that is all that matters. See Sharpe vy. Buchanan, 317

U.S. 238, 238-39 (1942) (where habeas claim was dismissed in district court for failing to

exhaust state remedies, but claim became exhausted while petition for certiorari was pending in

the Supreme Court, Court remanded case for a consideration on the merits because the “obstacle”

to review has been removed); Schwartzmiller v. Gardner, 752 F.2d 1341, 1344 (9th Cir. 1984)

(exhaustion satisfied if claim presented to highest state court before circuit decides appeal).

‘Of course, the Ninth Circuit ultimately did not grant any relief to Mr. Ramirez on an

Eighth Amendment claim. it has merely remanded the case to the district court to review the

record and to determine whether relief should be granted in the first instance. There is nothing

inherently wrong with that.

## {i The state appears to fundamentally misunderstand that while a COA is a gatekeeping

device, its primary purpose is to expedite habeas ‘iain review, and save appellate work, not to

: B., additional unnecessary litigation, as it is doing here. See Porterfield v. Bell, 258 F.3d 484,

Rags (6th Cir. 2001) (“Under normal circumstances, considerations of judicjal economy will

a review of certificates of appealability: the district court will have already invested

spatial time in the certification process; the parties may have already briefed the merits of

: the claims; and review by this court would not only duplicate the district court’s efforts, [it may] .

., further delay an already lengthy process.”); United States v. Marcello, 212 F.3d 1005, 1008

(7th Cir. 2000) (courts of appeals “will exercise our discretion to review the issuance of a [COA]

only in rare cases because . . . ‘[a]n obligation to determine whether a certificate should have

been issued . . . increase{s] the complexity of appeals in collateral attacks and the judicial effort

required to resolve them, the opposite of the legislative plan”); Lucidore v. New York State Div.

of Parole, 209 F.3d 107, 112 (2d Cir.), cert. denied, 531 U.S. 873 (2000) (“COA is a ‘screening

device’ or gate-keeping tool used to conserve judicial and prosecutorial resources, and . . . once a

case has proceeded to briefing and such resources have been invested, ‘there is little point in

scrutinizing the certificate of appealability”). And while issuance of a COA is a jurisdictional

prerequisite, the mere fact that a COA may have been (or even was) improvidently granted does

not then extinguish the jurisdiction of the court to review the claims presented. See Porterfield,

258 F.3d at 485 (“a certificate of appealability, even if improvidently granted, vests jurisdiction

in the court of appeals”); Owens v. Boyd, 235 F.3d 356, 358 (7th Cir. 2001) (“a defect in a

certificate of appealability is not a jurisdictional flaw”); Franklin v. Hightower, 215 F.3d 1196,

1199 (11th Cir. 2000) (Supreme Court’s decision in Slack v. McDaniel “remand{ing] the case in

we that defective leave to appeal neither dooms the appeal nor deprives the appellate courts

} of jurisdiction”); Marcello, 212 F.3d at 1008 (“even an unfounded [COA] gives us jurisdiction”);

* Soto v. United States, 185 F.3d 48, 52-53 (2d Cir. 1999) (“We now make explicit what our sister

ae have held and what this Court and the Supreme Court have suggested: that a certificate of

appealability that is issued erroneously nevertheless suffices to confer appellate jurisdiction

under § 2253. ... [O]nce a certificate of appealability is issued, our appellate jurisdiction has

vested, and this result holds even if the certificate of appealability is issued improvidently.”). In

addition, COAs are to be issued liberally, with any question as to whether the COA should issue

resolved in favor of issuance. See Sonnier v. Johnson, 161 F.3d 941, 944 (Sth Cir. 1998) (in

applying AEDPA’s certificate of appealability requirement, “[w]e resolve any doubt about

entitlement to a COA in favor of granting it”).

No doubt the state finds it a nuisance that its prisoners want to challenge their continued

incarceration and that as a result it is forced to defend the Draconian sentences it has imposed for

minor offenses. But the state’s efforts here to preclude all avenues for challenging those

excessive sentences must be rejected. There is nothing in this case — an unpublished, non-

precedential decision, in which no habeas relief has been granted — that warrants any type of

intervention by this Court, especially on an issue addressing the propriety of a COA which-was

issued several years ago when there’s been no suggestion of any continuing problem.

Accordingly, the writ should be denied.

There is no need for this Court to review the claim that it violates

28 U.S.C. § 2254(e)(2) to permit a habeas litigant to develop facts

underlying his prior convictions as part of an Eighth Amendment

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

such a challenge in state court because (1) the claim is premised

on an assumption that Mr. Ramirez did not attempt to develop

facts underlying his prior convictions in state court, but the

record supports no such premise, (2) by remanding the case to

the district court for additional fact development and to

determine whether relief should be granted in the first instance,

the Ninth Circuit has done nothing that violates any statute or

conflicts with any precedent, and (3) the proper forum for the

state to litigate this claim is in the district court, not this Court.

The state argues that the Ninth Circuit failed to adhere to the limits imposed by 28 U.S.C.

§ 2254(e)(2) when it remanded this case to the district court in light of Reyes v. Brown, 399 F.3d

964 (9" Cir. 2005), a case which directed the district court to develop the factual record as to the

circumstances surrounding a petitioner’s prior strikes. (Pet. 11-13). It argues that the record fails

to show that Mr. Ramirez ever sought to develop these facts in any state court proceeding, and

thus by remanding the case and ordering a hearing the Ninth Circuit’s decision here conflicts

with the express provisions of 28 U.S.C. §§ 2254(d){2) and (e)(2), as well as this Court’s

decisions in Holland v. Jackson, 124 S. Ct. 2436, 2737-38 (2004), and Williams v. Taylor, 529

U.S. 420, 430, 432, 435 (2000). (Pet. 11-12). But the state’s argument apparently is premised on

a misreading of the record and/or a fundamental misunderstanding of § 2254(e)(2), the cases

interpreting the statute, and habeas fact development in general. The Ninth Circuit’s decision

neither conflicts with this Court’s precedents nor the statute itself.

As an initial matter, the state argues that the district court will be required to hold an

evidentiary hearing. (Pet. 12). That is false. The Ninth Circuit’s remand only requires the

district court to develop the record further and determine if relief should be granted in the first

instance. See Reyes, 399 F.3d at 969-70. If the court is able to develop the record further

without the need for an evidentiary hearing, it may do so. And that very well may be the case

here. Although the state argues that “[t]he record fails to show . . . that Ramirez ever sought to

develop those facts [regarding the circumstances underlying his prior strikes] in any state court

proceeding,” (Pet. 12), that may, in fact, not be true, and in any event, would not in itself

necessarily violate 28 U.S.C. § 2254(e)(2).

It is certainly true that the nature and circumstances of Mr. Ramirez’s prior strike

convictions is unclear from the record before the Ninth Circuit; that is why the court remanded

the case to the district court for further fact development. But the fact that the record before the

Ninth Circuit is incomplete does not mean the facts and circumstances of those prior strikes were

not presented in any state court proceedings. Indeed, a review of the record in the Ninth Circuit

suggests very strongly that Mr. Ramirez did develop in the state trial court the facts and

circumstances of his priors. ~

For example, the record makes clear that Mr. Ramirez argued in the trial court that a life

sentence would be cruel and unusual punishment. (ER 20). The record indicates that the

sentencing judge had reviewed the facts and circumstances of the triggering and prior offenses

and indicated that it “had issues” with imposing a life sentence for someone with basically “a

misdemeanor drug record.” (ER 23). The probation office considered the nature of Mr.

Ramirez’s record and thought it sufficiently minor to recommend that one of the priors be

stricken and that a sentence of six years be imposed. (ER 24). In his Petition for Review of the

judgment affirming his sentence in the California Supreme Court, Mr. Ramirez noted that the

gentencing court had discussed the nature of his prior strikes. (SER 7). And we know from the

decision of the California Court of Appeal that “(t]he [sentencing] court looked at the facts and

circumstances of the prior strike convictions as well [because] . . . [t}he court then asked for the

facts of the prior burglaries in order to more closely determine defendant’s background and

history.” (Pet. App. J50). Thus, the facts the state claims were not developed in any state court

proceeding may in fact have been fully developed, and can found in portions of the record that

were not part of the record in the Court of Appeals. Of course, the only way to know for sure if

for the district court to figure it out — just as the Ninth Circuit has said it must. The Supreme

Court is not the appropriate forum to clear up the record. Accordingly, because the entire

premise of the state’s claim is an assumption about the record which may not exist, the issue is

simply not properly presented to this Court and review should be denied.

In any event, a habeas litigant’s failure to develop the factual basis of a claim in state

court does not in itself preclude an entetes hearing under 28 U.S.C. § 2254(e)(2). This Court

has made clear that “[uJnder the opening clause of § 2254(e)(2), a failure to develop the factual

basis of a claim is not established unless there is lack of diligence, or some greater fault,

attributable to the prisoner or the prisoner’s counsel.” Williams, 529 U.S. at 432. It is only

prisoners who are at fault for the deficiency in the state court record who would lose the right to

an evidentiary hearing under § 2254(e)(2). Id. at 433. Thus,

The question is not whether the facts could have been discovered

but instead whether the prisoner was diligent in his efforts. The

purpose of the fault component of “failed” is to ensure the-prisoner

undertakes his own diligent search for evidence. Diligence for

purposes of the opening clause depends upon whether the prisoner

made a reasonable attempt, in light of the information available at

the time, to investigate and pursue claims in state court; it does not

depend . . . upon whether those efforts could have been successful.

“Jd. at 435.

At this point, because the issue has not been litigated in any lower court, we do not know

whether Mr. Ramirez lacked diligence in failing to develop the record — assuming, arguendo, that

the record wasn’t developed — and should now be barred from developing the facts surrounding

ue prior strikes. That is an issue which also should be for the district court to decide in the first

instance, not this Court. |

Finally, there is nothing in the Ninth Circuit’s decision to remand for further factual

iedennel that is barred by any precedent. To the contrary, in Holland v. Jackson, 542 U.S.

649, 653 (2004), this Court criticized the Sixth Circuit for granting habeas relief by relying on

evidence apparently not developed in state court which neither the district court nor the Sixth

Circuit had found either met the limitations of § 2254(e)(2) or was not subject to the statute

because the petitioner had been diligent in pursuing the evidence. Here, by contrast, the Ninth

Circuit has required the district court to look into that question. It has not, as the state appears to

suggest, directed the district court to consider facts not previously developed in state court. It has

merely required the district court to look into it in the first instance. And it is most appropriately

in the district court — not this Court — where the state can argue the applicability of § 2254(e)(2)

if it is found that the facts surrounding Mr. Ramirez’s prior convictions were not developed

before the state court.

In short, nothing the Ninth Circuit has done here violates the rules. And this Court is not

in the habit of issuing advisory opinions or reviewing a case where the record is unclear. It is

simply premature for this Court to weigh in at this time. Accordingly, the writ should be denied.

ill

There is no need for this Court to review the question whether in

light of Lockyer v. Andrade, federal habeas corpus relief cannot

be granted on cruel and unusual punishment grounds on any

California three strikes sentence since (1) this Court in Andrade

explicitly held that such relief could be granted in an

“exceedingly rare” and “extreme” case, and the Ninth Circuit has

not held otherwise, and (2) the Ninth Circuit has not granted

habeas relief in the instant case, or even indicated that such relief

should be granted, thus it would be premature for this Court to

step in at this time.

In Lockyer v. Andrade, 538 U.S. 63, 72 (2003), this Court expressly held that “one

governing legal principle emerges as ‘clearly established’ under [28 U.S.C.] § 2254(d)(1): A

gross disproportionality principle is osbidine to sentences for terms of years.” Thus, the Court

aind that in that particular case, “the only relevant clearly established law amenable to the

‘schon to’ or ‘unreasonable application of Rui 1s the gross disproportionality principle,

ihe idan contours of which are unclear, applicable only in the “exceedingly rare’ and ‘extreme’

cone.” Id. at 73 (citing Harmelin v. Michigan, 501 U.S. 957, 1001 (1991) (Kennedy, J.,

concurring in part and concurring in the judgment); Solem v. H2lm, 463 U.S. 277, 290 (1983);

Rummel v, Estelle, 445 U.S. 263, 272 (1980)). So, despite the state’s protestations, it is simply

not the case that this Court “implicit{ly]” held “that a federal habeas court cannot find a state

court ruling, which upholds an Eighth Amendment challenge to a sentence that is properly

imposed under California’s Three Strikes Law, to be contrary to, or an unreasonable application

of, this Court’s clearly-established precedeut.” (Pet. 15). The state has apparently read into

Andrade something that it would like to be there, but isn’t.

Plainly, in the “exceedingly rare” and “extreme” case, it remains the case that a sentence

may be grossly disproportionate — and a state court’s contrary conclusion may be an objectively

unreasonable application of that clearly established law. Moreover, as this Court has explained, a

state court decision is contrary to clearly established precedent “if the state court confronts a set

of facts that are materially indistinguishable from a decision of this Court and nevertheless

arrives at a result different from our precedent.” Williams v. Taylor, 529 U.S. 362, 405-06

(2000). Thus, were a case to involve a set of facts materially indistinguishable from this Court’s

decision in Solem v. Helm, for example, in which a sentence was found to be grossly

disproportionate, a state court’s decision otherwise could be set aside on habeas review under 28

U.S.C. § 2254(d)(1). Finally, what constitutes “clearly established law” under § 2254(d)(1) “is

the governing legal principle or principles set forth by the Supreme Court at the time the state

court renders its decision.” Andrade, 538 U.S. at 72-73 (citing Williams, 529 U.S. at 405, 413;

Bell v. Cone, 535 U.S. 685, 698 (2002)). Thus, although the state here argues that this Court’s

decision in Ewing v. California, 538 U.S. 11 (2003), “has little, if any, precedential value

regarding the federal habeas corpus review of an Eighth Amendment challenge to a sentence

under California’s Three Strikes Law,” (Pet. 16-17), the Court’s decision there is something state

courts must consider since the time Ewing was issued — and any future decisions of the Court

defining the contours of the gross disproportionality principle must similarly be considered.

Significantly, the state’s primary Peano for why “[t}his Court’s intervention is

warranted and urgently needed” — even though the Ninth Circuit has not granted habeas relief in

this case and habeas relief may never be granted in this case — is its belief that “the Ninth Circuit -

Continues to misunderstand the scope of its authority on habeas review,” and “(t]he Ninth

Circuit’s recent decisions confirm that the court needs additional guidance concerning the scope

afhabeas review.” (Pet. 6-7). It maintains that the Ninth Circuit has “failed to be guided by the

eriteria presented ‘n this Court’s most recent opinion concerning habeas review of Eighth

Amendment challenges in California,” and that “[i}f left unchecked, the decision in the instant

matter will encourage unprincipled federal habeas review of numerous sentences in California.”

(Pet. 17). Indeed, it stresses that even though this Court in Andrade said an Eighth Amendment

challenge to a three strikes sentence would be viable in only an exceedingly rare case, “in the two

years since this Court issued its decision in Lockyer v. Andrade, the Ninth Circuit has [already]

identified three cases which it feels potentially qualify as exceedingly rare,” the instant case,

Reyes v. Brown, 399 F.3d 964 (9" Cir. 2005), a case in which the state is simultaneously seeking

a writ of certiorari (No. 05-755), and Ramirez v. Castro, 365 F.3d 755 (9" Cir. 2004). (Pet. 17).

The state goes so far as to declare that “[t]he Ninth Circuit’s willingness to find so many

exceedingly rare cases in such a short period of time clearly reveals that some judges of the Ninth

Circuit either choose not to apply Lockyer v. Andrade or misunderstand that decision.” (Pet. 17).

But the state’s histrionic rhetoric is belied by reality. Its argument is misleading and fails to give

the real picture.

Contrary to the state’s suggestion, the Ninth Circuit has in fact only found an Eighth

Amendment violation in the “exceedingly rare” case, granting relief only once since this Court’s

decision in Andrade. See Ramirez vy. Castro, 365 F.3d 755 (9" Cir. 2004). Notably, the state did

not seek review of Ramirez v. Castro, publicly stated it believed it was an “exceedingly rare

case,” and acknowledged that relief was appropriate there. (Pet. App. C10 at n.3 (“We note that

the California Attorney General declined to seek further review of our decision in Ramirez,

Stating that he was acting ‘in the interest of justice’ and calling Ramirez an ‘exceedingly rare

EE => (citing Henry Weinstein, Lockyer Gives Up Three-Strikes Case, L.A. Times, Apr. 30,

3 a B6, available at 2004 WL 55909787)).

. By contrast, in that same time period the Ninth Circuit, relying on Andrade, has

po prisoner raising an Eighth Amendment challenge to his or her life sentence, even where

thie petitioner had a minor triggering offense.’ See Earle v. Runnels, No. 05-15739, 2006 WL

1049733 (9 Cir. Apr. 21, 2006) (unpublished) (receiving stolen property [a 16 year old

motorcycle]); French v. Duncan, No. 04-57067, 2006 WL 679932 (9" Cir. Mar. 15, 2006)

(unpublished) (shoplifting $31 worth of cigarettes); Aguirre v. Hubbard, 167 Fed. Appx. 668 (9"

Cir: 2006) (possession of 0.1 gram of methamphetamine); Wallace v. Kramer, 149 Fed. Appx.

690 (9* Cir. 2005) (possession of less than half of a gram of cocaine); Hernandez v. Almeida,

146 Fed. Appx. 934 (9 Cir. 2005) (possession of 0.66 gram of cocaine); Rico v. Taylor, 146

Fed: Appx. 143 (9 Cir. 2005) (purse snatching); Webb v. McGrath, 146 Fed. Appx. 131 (9" Cir.

2005) (forgery); Nutt v. Knowles, 145 Fed. Appx. 221 (9™ Cir. 2005) (50 years to life for two

counts of pandering); LaCroix v. Harris, 139 Fed. Appx. 866 (9" Cir. 2005) (shoplifting five

cartons of cigarettes); Rodriguez v. Lewis, 132 Fed. Appx. 134 (9" Cir. 2005) (petty theft of two

candy bars and package of cheese worth about $4); Crutcher v. Garcia, 131 Fed. Appx. 116 (9

Cir. 2005) (grand theft auto); Skinner v. Roe, 130 Fed. Appx. 909 (9" Cir. 2005) (225 years to

life for multiple nonviolent theft-related offenses); Sigala v. Campbell, 130 Fed. Appx. 129 (g"

*This only includes those cases in which either the district court or the Ninth Circuit had

granted a certificate of appealability. It does not include the numerous other cases with Eighth

Amendment claims where the court concluded that not even a certificate of appealability was

warranted.

BEST AVAILABLE COPY

ce 2005): (driving under the influence); Amico v. Alameida, 122 Fed. Appx. 357 (9" Cir. 2005)

ioe theft-related offenses); Nible v. Terhune, 119 Fed. Appx. 53 (9" Cir. 2004) (resisting a

i -ranget); Crawford v. Small, 116 Fed. Appx. 876 (9* Cir. 2004) (second degree burglary);

390 F.3d 1082 (9" Cir. 2004) (petty theft of two watches with combined value of

“sp. 98) Jones v. Castro, 111 Fed. Appx. 942 (9" Cir. 2004) (escape without force or violence);

_ Wroblesk v. Guirbino, 111 Fed. Appx. 934 (9" Cir. 2004) (petty theft with a prior); Alfred v.

é Galaza, 108 Fed. Appx. 554 (9" Cir. 2004) (reckless driving while evading a peace officer);

— vy. Cambra, 105 Fed. Appx. 147 (9" Cir. 2004) (shoplifting tool set priced at $199.99 and

aie priced at $59.99); Mason v. Hamlet, 94 Fed. Appx 575 (9" Cir. 2004) (95 years to

life for two counts of first degree burglary and one count attempted first degree burglary);

Guzman v. Adams, 88 Fed. Appx. 215 (9™ Cir. 2004) (petty theft of Sony Walkman); Caliendo v.

Warden of California Men’s Colony, 353 F.3d 1147 (9" Cir.) (second degree auto burglary),

opinion withdrawn and superseded on denial of rhrg., 365 F.3d 391 (2004) (granting relief on

other grounds); Gonzales v. Terhune, 84 Fed. Appx. 931 (9 Cir. 2003) (residential burglary);

Bryant v. Adams, 83 Fed. Appx. 260 (9™ Cir. 2003) (shoplifting $24 worth of underwear), cert.

denied, 541 U.S. 1017 (2004); Quinones v. Garcia, 83 Fed. Appx. 259 (9" Cir. 2003) (75 years to

life for possession of heroin for sale and possession of firearm by felon); Butler v. Hernandez, 83

Fed. Appx. 219 (9® Cir. 2003) (petty theft with a prior); Duenas v. Galaza, 83 Fed. Appx. 180

(9" Cir. 2003) (shoplifting six bottles of beer); Clark v. Lamarque, 82 Fed. Appx. 522 (9" Cir.

2003) (indecent exposure); Anderson v. Lamarque, 81 Fed. Appx. 257 (9th Cir. 2003)

(shoplifting $40 worth of clothing); Joseph v. Lewis, 81 Fed. Appx. 214 (9" Cir. 2003)

(possessing $5 quantity of rock cocaine); Prince v. Adams, 80 Fed. Appx. 570 (9" Cir. 2003)

Aeaging in consensual sexual intercourse with 16 year old girlfriend); Reed v. Roe, 79 Fed.

e991 (9" Cir. 2003) (failing to re-register as a sex offender after changing address);

3 arque, 78 Fed. Appx. 610 (9" Cir. 2003); Barries v. Larson, 78 Fed. Appx. 7

cit. 2003) (grand theft); Pena v. Terhune, 77 Fed. Appx. 935 (9" Cir. 2003) (shoplifting

1 ht and pair of shoes with combined total value of $35.98); Clayton v. Fairman, 76 Fed.

App 186 (9 Cir. 2003) (burglary); Marshall v. Clark, 73 Fed. Appx. 975 (9" Cir. 2003)

Hoping two bottles of liquor); Williams v. Galaza, 73 Fed. Appx. 941 (9" Cir. 2003)

“etoplifting two pairs of jeans with total value between $60 and $64); Johnsor- v. Mueller, 73

red Appx. 304 (9" Cir. 2003) (transportation of 0.16 gram of heroin); Clarke v. Galaza, 73 Fed.

ae 296 (9" Cir. 2003) (driving under the influence and reckless driving); Allen v. Roe, 73

“Fed. Appx. 291 (9" Cir. 2003) (shoplifting a telephone); LaCroix v. Harris, 73 Fed. Appx. 260

| (9" Cir. 2003) (shoplifting two cartons of cigarettes); Webb v. YIst, 72 Fed. Appx. 716 (9" Cir.

2003) (possession of 0.12 gram of methamphetamine); Varela v. Adams, 72 Fed. Appx. 698 (9"

Cir. 2003) (narcotics possession); Smith v. Giurbino, 71 Fed. Appx. 684 (9" Cir. 2003)

(possession of cocaine); Gayles-Shealy v. Adams, 71 Fed. Appx. 648 (9" Cir. 2003) (sale of $20

of cocaine base); Aguilar v. Ayers, 69 Fed. Appx. 390 (9 Cir. 2003) (unlawfully driving a

vehicle, receiving stolen property, possession of a hypodermic needle); Wallace v. Mueller, 68

Fed. Appx. 828 (9" Cir. 2003) (evading a police officer with reckless driving); Grayson v.

Castro, 68 Fed. Appx. 794 (9" Cir. 2003) (50 years to life for receiving an access card without

consent, forgery, second degree burglary); Blanton v. Terhune, 68 Fed. Appx. 119 (9" Cir. 2003)

(possession of less than 0.1 gram of methamphetamine); Shirley v. Small, 68 Fed. Appx. 117,(9"

Cir. 2003) (possession of 6.8 grams of cocaine for sale); Dodd v. Terhune, 68 Fed. Appx. 111 (9*

a £45 ati 2003) (burglary of a vehicle and petty theft with a prior); Thomas v. Clarke, 68

i ‘Appx: 14 (9 Cir. 2003) (receiving stolen property [checks and a license plate}); Baxter v

ice $s

¢ * Roe. 67 Fed: “Appx. 493 (9" Cir. 2003) (shoplifting tools); King v. Clarke, 67 Fed. Appx. 460 Ce

- 2003) (comimercial burglary); Cook v. Galaza, 65 Fed. Appx. 106 (9" Cir. 2003) (possession of

| 0:46:gram methamphetamine); Turner v. Candelaria, 64 Fed. Appx. 647 (9" Cir. 2003) (receiving

stolen property); Rico v. Terhune, 63 Fed. Appx. 394 (9" Cir. 2003) (shoplifting a television set

worth $130); Jones v. Taylor, 63 Fed. Appx. 330 (9" Cir. 2003) (shoplifting clothing); Walters v.

Fairman, 62 Fed. Appx. 190 (9* Cir. 2003) (two counts of shoplifting [a shirt and a piece of

software]); Samuel v. Lewis, 62 Fed. Appx. 190 (9" Cir. 2003) (50 years to life for two counts of

petty theft with a prior); Robinson v. Lewis, 62 Fed. Appx. 188 (2003) (possession of 1.31 grams

of cocaine base for sale); Aguirre v. Lewis, 62 Fed. Appx. 187 (9" Cir. 2003) (commercial

burglary); Venson v. Lewis, 62 Fed. Appx. 186 (9" Cir. 2003) (vehicle code violations

(unlawfully driving a vehicle and evading an officer]); Johnson v. Finn, 62 Fed. Appx. 185 (9

Cir. 2003) (35 years to life for residential burglary and petty theft with a prior); Benscoter v.

McGrath, 62 Fed. Appx. 184 (9" Cir. 2003) (shoplifting pair of tennis shoes); Tolbert v. Roe, 62

Fed. Appx. 184 (9" Cir. 2003) (50 years to life for two counts of second degree commercial

burglary and two counts of petty theft with a prior); Andrews v. Lewis, 62 Fed. Aypx. 183 (9"

Cir. 2003) (shoplifting eight videotapes); Kunkle v. Galaza, 62 Fed. Appx. 182 (9" Cir. 2003)

(evading an officer with reckless driving and possession of narcotics paraphernalia); Johnson v.

Sy 69 Fed. Appx. 180 (9 Cir. 2003) (selling or furnishing 0.15 gram rock cocaine); Romero

61 Fed. Appx. 492 (9" Cir. 2003) (receiving stolen property); Robles v. Clarke, 61

FF agp 483 (9 Cir. 2003) (shoplifting a $45 camera); Anderson v. Clarke, 61 Fed. Appx.

i (9" Cir. 2003) (Possession of 6.5 grams of methamphetamine for sale); Collins v. Pliler, 61

"a Appx. 479 (9 Cir. 2003) (shoplifting microwave oven worth $189); Le v. Castro, 61 Fed.

a 321 (9* Cir. 2003) (possession of $8 worth of narcotics [14 mg. cocaine and 97 mg.

‘feroin))! Given that the Ninth Circuit has granted relief on an Eighth Amendment claim in

barely one percent of the California three strikes cases in which it has reviewed such claims in

the last three years — and even the state acknowledged that the one case where relief was granted

was an “exceedingly rare” case — it can hardly be reasonably argued that the Ninth Circuit is

some renegade court gone amok requiring intervention by this Court.

Moreover, the state appears to be complaining that the Ninth Circuit has engaged in an

analysis here that is contrary to this Court’s decision in Andrade. (Pet. 14). It argues that the

Ninth Circuit, by comparing the sentence imposed to the “gravity of the offense, considering the

nature of the triggering offense as well as the facts underlying the prior strike offenses,” has

demonstrated “a fundamental misconception of’ Andrade. (Pet. 14). But it is the state that

misreads Andrade and this Court’s precedents.’ The Ninth Circuit’s post-Andrade analysis in

The Ninth Circuit has also denied habeas relief from an Arizona three sentence since

Andrade. See Kenyatta v. Stewart, 152 Fed. Appx. 616 (9" Cir. 2005) (aggravated assault with a

truck). The court distinguished the case from the instant case on the ground that Mr. Ramirez’s

triggering offense was nonviolent.

’Moreover, the state’s argument in this Court appears to contradict its argument in the

Ninth Circuit. In the Ninth Circuit, it argued that “the state courts’ rulings that [Ramirez]’s

sentence did not constitute cruel and unusual punishment did not contradict or unreasonably _

apply applicable United States Supreme Court authority,” because the state courts’ rulings were;

eas i °° P

ro “acti 9 is entirely appropriate.

tory. ‘To determine whether or not a defendant’s crime and criminal history make the

; posed grossly disproportionate, it is necessary for a reviewing court to look at the

-For example, in Solem ~ a case that has not been overruled, and remains good law after

Andrade — this Court explained that “‘a court’s proportionality sickle under the Eighth

Amendment should be guided by objective criteria, including (i) the gravity of the offense and

harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction;

and (iii) the sentences imposed for commission of the same crime in other jurisdictions.” 463

U.S. at 292. In performing such objective analysis, this Court further endorsed consideration of

“other accepted principles that courts may apply in measuring the harm caused or threatened to

the victim or society,” such as the “absolute magnitude of the crime” and the offender’s

“culpability.” Id. In Harmelin, Justice Kennedy’s concurring opinion, which later guided the

Court in its analyses in Ewing and Andrade, compared the nature and circumstances of the

offenses committed by the defendant there to other Eighth Amendment cases, particularly

looking to whether an offense was “relatively minor” or “nonviolent.” Harmelin, 501 U.S. at

‘[bJased on (Ramirez]’s history and current offenses.” State’s Ninth Cir. Br. 16.

i spertment complex, claiming to have a gun before forcing the victim back to his

meni t at knife-point to steal the victim’ s money and credit cards. 538 U.S. at 19. The

te “weigh{ed] the gravity of Ewing’s offense,” explaining that “we must place on the

fo not-only his current felony, but also his long history of felony recidivism. In Andrade, the

ts saad beyond Andrade’s most recent convictions to detail his extensive criminal history,

saiialind in light of that criminal history his sentence was not outside te “contours” of the

proportionality principle and thus not an extraordinary case resulting in a sentence that violated

the Eighth Amendment. 538 U.S. at 66-67, 76-77.* Looking to the nature and circumstance of a

defendant's offenses is exactly what a reviewing habeas court must do. How else is the court to

determine whether it is the exceedingly rare case where the sentence imposed was grossly

disproportionate and whether any state court decision to the contrary was an unreasonable

application of that clearly established principle?

The state complains that such an approach is improper, yet the state declined to seek

review of the Ninth Circuit’s decision which established that review process for Eighth

Amendment claims post-Andrade. See Ramirez v. Castro, 365 F.3d 755 (9 Cir. 2004). But

regardless of the process utilized, the state now seeks to have this Court declare in this case that

*This Court has looked beyond the mere fact of conviction in other contexts as well. For

example, in determining whether a prior conviction meets the requirements for a sentencing

enhancement, this Court has recognized that some statutes may cover conduct which would not

be subject to a sentence enhancement. Where it is unclear from the statute itself whether an ~-

enhancement was proper, this Court has permitted a modified approach where a court may look.

beyond the statute of conviction itself to other evidence which indicates the nature of the offense.

See Taylor v. United States, 495 U.S. 575, 602 (1990).

f ig +- prisoner serving a three strikes sentence can ever qualify for habeas relief of an

ae ieee claim — regardless of the facts and circumstances in the case. The state’s

2 is premised on the erroneous belief that a// three strikes sentences in California are

Paty constitutional in light of Andrade. But such a holding would negate the entire line of

—_ with Weems v. United States, 217 U.S. 349, 371 (1910), which was applied to the

= in Robinson v. California, 370 U.S. 660, 667 (1962) (applying Eighth Amendment to states

athe Fourteenth Amendment), and which was reaffirmed in Andrade, which hold that any

Ri canes which is grossly disproportionate does violate the Eighth Amendment’s proscription on

- and unusual punishment. Thy; mere fact that California says a sentence sstishies the Eighth

Amendment does not necessarily make it so. Prisoners have the right to challenge that ipse dixit

in the federal courts, and in the exceedingly rare case, may have that sentence declared grossly

disproportionate in violation of the Eighth Amendment.

To the extent the state seeks to have this Court overrule the “clearly established” gross

disproportionality principle from Weems and Solem and Harmelin and Ewing and Andrade, this

case is not the appropriate vehicle since no habeas relief has yet been granted and we won't

know if the sentence imposed here was grossly disproportionate until the lower courts can review

the facts surrounding Mr. Ramirez’s prior strikes. Accordingly, the writ should be denied on this

issue.

CONCLUSION

For‘all the foregoing reasons, the petition for writ of certiorari shouid be denied.

Respectfully submitted,

SEAN K. KENNEDY

Acting Federal Public Defender

Central District of Califorma

Deputy Federal Public Defender

Central District of California

Counsel of Record

ae Supreme Court, U.S.

d) FILED

CG, MAY 26 2006

OFFICE OF THE CLERK

IN THE SUPREME COURT OF THE UNITED STATES

JEANNE S. WOODFORD, Acting Secretary,

California Department of Corrections, Petitioner,

RAYMOND RAMIREZ, Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

REPLY TO BRIEF IN OPPOSITION

TO 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

State Bar No. 174299

est A Street, Suite 1100

iego, CA 92101

JUN - } 2006 Sa

OF Pp te, :

Sura : (619) 645-2012

sel for Petitioner

BEST AVAILABLE COPY

TABLE OF CONTENTS

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

The Ninth Circuit Failed To Adhere To The

Limits Congress Imposed In The AEDPA On

Federal Habeas Corpus Review By Allowing A

Habeas Petitioner To Develop Facts To Support

A Claim When The Petitioner Never Attempted

To Develop Those Facts In State Court

The Ninth Circuit’s Designation Of An Eighth

Page

Amendment Claim Contravenes This Court’s.

Decision In Lockyer v. Andrade

Conclusion

TABLE OF AUTHORITIES

Cases

Lockyer v. Andrade

538 U.S. 63 (2003)

Reyes v. Brown

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

Slack v. McDaniel

529 U.S. 473 (2000)

Williams v. Taylor

529 U.S. 420 (2000)

Constitutional Provisions

United States Constitution

Eighth Amendment

Statutes

28 U.S.C.

§ 2253(c)

§ 2253(c)(2)

§ 2254(e)(2)

Antiterrorism and Effective Death Penalty Act

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

Page

» Ny

1-5, 7

y eae Shy

IN THE SUPREME COURT OF THE UNITED STATES

No. 05-736

JEANNE S. WOODFORD, Acting Secretary,

California Department of Corrections, Petitioner,

Vv.

RAYMOND RAMIREZ, Respondent.

The decision below violates all notions of comity, finality,

and the orderly administration of justice - the fundamental

principles of habeas corpus. The law clearly specifies that a

certificate of appealability ("COA") may not issue unless "the

applicant has made a substantial showing of the denial of a

constitutional right." 28 U.S.C. § 2253(c)(2). In Slack v.

McDaniel, 529 U.S. 473, 483 (2000), this Court explained that

the showing required to satisfy 28 U.S.C. § 2253(c) is that

reasonable jurists would find the district court’s assessment of

the constitutional claims debatable or wrong. Yet, the Ninth

Circuit granted Ramirez a COA on an Eighth Amendment claim

that Ramirez did not raise in either state or federal proceedings.

Indeed, Ramirez did not even seek a COA on the claim certified

for appeal by the Ninth Circuit. The Ninth Circuit’s spontaneous

advocacy on behalf of Ramirez is not merely the liberal

construction of a pro se pleading as suggested by Ramirez in his

Brief in Opposition but, rather, the creation of a claim out of

whole cloth. The Ninth Circuit’s action not only violates

principles of comity and federalism, it also conflicts with the

decisions of this Court and three other federal circuits (Third,

Fifth, and Tenth Circuits) which apply these principles to

preclude this type of spontaneous and creative advocacy on

behalf of a habeas applicant. This Court’s intervention is

therefore necessary to clarify the terms upon which a COA may

issue and to resolve a conflict among circuits. .

Another basis for this Court’s intervention is the Ninth

Circuit’s continued misunderstanding of the Antiterrorism and

Effective Death Penalty Act of 1996 ("AEDPA") and, in

particular, the prerequisites to authorizing an evidentiary

hearing. The law makes clear that if a habeas applicant has

failed to develop the factual basis of his claim in state court, the

federal habeas court shall not hold an evidentiary hearing on the

claim unless the applicant shows that his claim relies on a new

rule of constitutional law or a factual predicate that could not

have been previously discovered by exercising due diligence,

and shows that the facts underlying his claim constitute clear

and convincing evidence that but for a constitutional error, no

reasonable fact-finder would have found him guilty of the

underlying offense. 28 U.S.C. § 2254(e)(2); Williams v. Taylor,

529 U.S. 420, 430, 432, 435 (2000). The Ninth Circuit,

however, vacated the district court’s judgment (i.e., that

Ramirez was not entitled to habeas relief based on his claim that

the state trial court abused its discretion and violated due

process when it refused to dismiss one of his prior strike

convictions) and remanded the matter to the district court for

consideration of his Eighth Amendment claim under Reyes v.

Brown, 399 F.3d 964 (9th Cir. 2005). The Ninth Circuit’s ruling

wholly ignores that Ramirez never sought to develop any of

those facts in any state court proceeding and that no

determination had been made as to whether he was at fault for

failing to develop the relevant facts in the first place or if he

could satisfy one of the exceptions in 28 U.S.C. § 2254(e)(2).

Finally, in Lockyer v. Andrade, 538 U.S. 63 (2003), this

Court held that a state court’s affirmation of two consecutive

terms of twenty-five years to life in prison was neither contrary

to, nor an unreasonable application of, this Court’s clearly

established Eighth Amendment jurisprudence. This Court noted

that if a gross disproportionality principle under the Eighth

Amendment applies to a sentence for a term of years, the

principle reserves a constitutional violation for only the

exceedingly rare and extreme case, and this Court has not

established a clear path for courts to follow in determining

whether a particular sentence for a term of years violates the

Eighth Amendment. /d. at 73. Nevertheless, the Ninth Circuit

determined that Ramirez had a viable Eighth Amendment

challenge against his term of twenty-five years to life under

California’s Three Strikes Law even though the Eighth

Amendment challenge was the same challenge at issue in

Andrade.

The Ninth Circuit has once again shown its unwillingness

to adhere to the limits Congress imposed, through the AEDPA,

on federal habeas corpus review of state court judgements.

Certiorari is warranted not only to clarify the criteria for issuing

a COA and ordering an evidentiary hearing, so that neither a

COA nor a1 evidentiary hearing is improvidently granted, but

also to prevent Congress’ intent from being thwarted once

again. Nothing set forth in the Brief in Opposition undercuts

that conclusion.

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

As to the question of whether a federal court of appeals has

the authority to issue a COA based on a claim that the habeas

applicant had not raised in the district court and did not raise in

a request for a COA, Ramirez does not deny that a COA may

not issue unless the applicant has made a substantial showing of

the denial ofa constitutional right. Instead, he principally argues

that the State was wrong in asserting that an Eighth Amendment

claim had not been presented in state or federal court

proceedings. He asserts that his complaint, inartfully presented

in his federal habeas petition and his application fora COA, was

that his sentence under California’s Three Strikes Law was

unconstitutional. Br. in Opp’n. at 8-9. The record demonstrates

otherwise. Ramirez’s sole complaint in state and federal court

proceedings was that he was allegedly denied a fundamentally

fair hearing and, thus, due process when the state trial court

denied his motion to strike a prior conviction because the court

failed to weigh the mandated factors in arriving at its decision.

Nothing in Ramirez’s habeas petition or application for COA

even remotely suggests an Eighth Amendment claim as to the

sentence ultimately imposed." Pet. App. at 24-30, 41-44; Br. in

Opp’n. at 9; ER at 25-33. Indeed, the Ninth Circuit’s inquiry, in

the order granting a COA, as to whether Ramirez had exhausted

an Eighth Amendment issue, shows the Ninth Circuit had not

seen the issue raised in any of Ramirez’s pleadings. Pet. App.

at 22. Thus, the Ninth Circuit did not simply liberally construe

Ramirez’s habeas petition. To the contrary, the Ninth Circuit

effectively rewrote the habeas petition to include a claim that

had not been raised before. Br. in Opp’n. at 9-10.

Ramirez also argues that the Ninth Circuit had the

authority to review his Eighth Amendment claim because the

claim was fully exhausted before the Ninth Circuit vacated the

district court’s judgment and remanded the matter back to the

district court for consideration of the claim under Reyes v.

Brown, 399 F.3d 964. Br. in Opp’n. at 11. Ramirez’s argument

misses the point. The Ninth Circuit had no authority, in the first

place, to issue the COA because Ramirez had not made any

showing, substantial or otherwise, of a violation of his Eighth

Amendment rights. Indeed, Ramirez could not have made that

requisite showing because he never raised an Eighth

Amendment claim in his state or federal court proceedings. Pet.

App. at 24-30, 41-44; Br. in Opp’n. at 9; ER at 25-33. Thus,

whether Ramirez ultimately exhausted the Eighth Amendment

claim before the Ninth Circuit rendered its decision in the case

is immaterial. The fact remains that Ramirez had not exhausted

his claim prior to the Ninth Circuit’s granting of the COA.

Ramirez further argues that the mere fact that a COA was

improvidently granted does not affect the Ninth Circuit’s

jurisdiction to review the claim. Br. in Opp’n. at 12-13. This

attempt to finesse the Ninth Circuit’s issuance of a COA on a

1. In response to the second question presented in the instant case,

Ramirez asserts that "the record makes clear that [he] argued in the trial

court that a life sentence would be cruel and unusual punishment." Br. in

Opp’n. at 15. Ramirez cites "ER 20" in support of his assertion. However,

the record indicates that Ramirez claimed only that his sentence was crue]

and unusual punishment under the California Constitution. He did not raise

any claim under the Eighth Amendment to the United States Constitution.

claim that was not asserted in state or federal court proceedings

or in the application for a COA fails. The legal issue pending

before this Court is not whether the Ninth Circuit was justified

in reviewing the Eighth Amendment claim simply because it

had improvidently issued a COA on that claim. Rather, the issue

is whether the Ninth Circuit had the authority to grant the COA

on the Eighth Amendment claim when Ramirez had not raised

that claim before in his prior court proceedings and, thus, could

not have made the requisite showing of a denial of an Eighth

Amendment right. As discussed in the Petition, the simple

answer to that question is "no."

Ramirez’s reliance on facts and circumstances that are

wholly irrelevant to the question raised in the Petition merely

confirms the vulnerability of the Ninth Circuit’s granting of the

COA and the absence of any law authorizing a federal court of

appeal to issue a COA based on a claim that the habeas

applicant had not raised in prior court proceedings and did not

raise in the request for a COA.

B. The Ninth Circuit Failed To Adhere To The

Limits Congress Imposed In The AEDPA On

Federal Habeas Corpus Review By Allowing A

Habeas Petitioner To Develop Facts To Support A

Claim When The Petitioner Never Attempted To

Develop Those Facts In State Court

On the second question presented, whether § 2254(e)(2) is

violated by allowing a habeas applicant 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,

Ramirez’s opposition to certiorari fares no better. Ramirez does

not deny that a habeas applicant’s failure to develop the factual

basis of a claim in state court precludes an evidentiary hearing

on the claim unless the applicant shows that his claim relies on

anew rule of constitutional law or a factual predicate that could

not have been previously discovered by exercising due

diligence, and shows that the facts underlying his claim

constitute clear and convincing evidence that but for a

constitutional error, no reasonable fact-finder would have found

him guilty of the underlying offense. Instead, he maintains that

the State is incorrect in arguing that the district court will be

required to hold an evidentiary hearing on remand. Br. in

Opp’n. at 14-15. The dissent in Reyes v. Brown, 399 F.3d 964,

undermines Ramirez’s argument. Pet. App. at 16-20. Lest there

be any doubt on this score, the dissent in Reyes v. Brown makes

clear that the further development of the record mentioned in

Reyes v. Brown amounts to an evidentiary hearing:

It is unclear what sorts of facts the court here anticipates

will be revealed during the evidentiary hearing, or what

difference they will make in the proportionality inquiry. It

is also unclear what facts the district court on habeas

review is permitted to revisit in its "core conduct" inquiry

in the face of a final state criminal judgment that Reyes

committed a robbery while armed. Because Ramirez sets

forth a balancing test, the district court must simply

determine that, in consideration of the four factors, and

particularly his pattern of continuing criminal behavior,

Reyes’ prior time spent in state prison and his earlier

conviction for armed robbery render his Three Strikes

sentence for perjury justified under controlling Supreme

Court precedent. There is no need for an evidentiary

hearing to reach that conclusion on the record already

before us.

Pet. App. at 20.

Additionally, Ramirez attempts to justify the Ninth

Circuit’s decision to remand the matter for further development

of the record by arguing that the State’s position is premised on

a misreading of the record. He speculates that "a review of the

record in the Ninth Circuit suggests very strongly that [he] did

develop in the state trial court the facts and circumstances of his

priors. Br. in Opp’n. at 15-16 (underscore added). Ramirez’s

attempt to rationalize the Ninth Circuit’s decision is unavailing.

First, it is not clear from the record that Ramirez actually

presented the facts and circumstances of his priors tn the state

trial court. Second, it is not clear as to what specific facts and

circumstances Ramirez purportedly presented in the state tral

court. However, what is clear is that the facts he allegedly

developed in the state trial court were insufficient to warrant

habeas relief on Eighth Amendment grounds because the Ninth

Circuit remanded the matter for further development of the

record under Reyes v. Brown, 399 F.3d 964. What is also clear

is that Ramirez may not now, for the first time, develop further

facts to support his claim. The AEDPA carefully circumscribes

the development of new facts in the federal courts when a

petitioner has failed, as a result of lack of diligence, to develop

the record in the state courts. Williams v. Taylor, 529 U.S.

at 431-35. Nothing prevented Ramirez from further presentation

of facts in the state courts, so any factual deficiency must be

~ascribed to his lack of diligence.

Accordingly, Ramirez was entitled to an evidentiary

hearing only if he met the requirements of 28 U.S.C.

§ 2254(e)(2). But, there has been no showing that Ramirez’s

Eighth Amendment claim relied on a new rule of constitutional

law or a factual predicate that could not have been previously

discovered by exercising due diligence. 28 U.S.C. § 2254(e)(2).

As discussed in the Petition, there is simply no way to reconcile

the Ninth Circuit’s decision to remand the matter for further

development of the record with the provisions of the AEDPA.

C. The Ninth Circuit’s Designation Of An Eighth

Amendment Claim Contravenes This Court’s

Decision In Lockyer v. Andrade

As to the question of whether, in light of Lockyer v.

Andrade, 538 U.S. 63, federal habeas corpus relief can be

granted on the basis of an Eighth Amendment violation when

the habeas applicant’s sentence comports with California’s

Three Strikes Law, Ramirez’s arguments are essentially the

same as those raised by Santos Reyes in the brief in opposition

to the petition for writ of certiorari filed in Ornoski v.

Reyes (05-755). To this end, the State joins in the arguments

made in the reply to the brief in opposition to the petition for

writ of certiorari in Reyes.

D. Conclusion

The Ninth Circuit’s refusal to follow the law, specifically

the dictates of the AEDPA, undermines the careful balance

between the state, on the one hand, and the federal courts, on the

other, that Congress struck when it enacted that law. The Ninth

Circuit’s decision has consequences that extend beyond this

case. The decision creates, exclusively in the Ninth Circuit, new

procedural rules permitting COAs to be issued and evidentiary

hearings to be held regardless of whether the habeas applicants

have made the requisite showings for such COAs and

evidentiary hearings. These new procedural rules are at odds

with the holdings of this Court and three other federal circuits.

This Court’s intervention is therefore needed to resolve the

conflict among the circuits and to correct the Ninth Circuit’s

consistently unorthodox approach to the collateral review of

state court judgments.

Dated: May 25, 2006

Respectfully submitted,

BILL LOCKYER

Attorney General of the State of California

ROBERT R. ANDERSON

Chief Assistant Attorney General

GARY W. SCHONS |

Senior Assistant Attorney General

VIN hh

QUISTEEN S. SHUM

Deputy Attorney General

Cc cunecl of Record

Counsel for Petitioner

80075269. wpd

$D2001FA0074

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