Opposition Brief — Ornoski v. Reyes (No. 05-755)

No. 05-755

IN THE SUPREME COURT OF THE UNITED STATES

S.W. ORNOSKI, Acting Warden,

Petitioner,

-V.-

SANTOS L. REYES,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR RESPONDENT IN OPPOSITION

SEAN K. KENNEDY

Acting 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

ESTI P NTED

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).

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 au 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.

LIST OF PARTIES

The original parties in the district court and the Ninth Circuit were Santos L. Reyes and

A. Calderon, then-Warden of San Quentin State Prison. At the time the initial unpublished

opinion was filed in the Ninth Circuit, J.$. Woodford was substituted for A. Calderon, who had

succeeded as Warden of San Quentin State Prison. At the time the final published decision was

filed in the Ninth Circuit (the judgment being appealed from), Jill Brown was substituted for J.S.

Woodford, her predecessor as Warden of San Quentin State Prison. S.W. Ornoski, Acting

Warden of San Quentin State Prison, has been substituted for Ms. Brown as petitioner in this

Court. Mr. Reyes is the respondent in this Court.

TABLE OF CONTENTS

Page

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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 thrée 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

NRG: ik ctcas ecccgt ode deb ere hE eee ak A Oa ae eee 7

TABLE OF CONTENTS (Cont'd)

Page

II

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. Reyes 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..............0cceccceeceeeees 18

se ery oa era ee es 21

iV

TABLE OF AUTHORITIES

Page

FEDERAL CASES

Aguilar v. Ayers,

FMR Arann he Berman ee ey Gan han 12

Aguirre v. Hubbard,

ee PEA BOE es dg cided noon b bade cdichiceexiedeabieee 10

Ure V. is,

pe PN By Os I os ova Goins ad-a'c tae Rado a bdea Peas 13

Alfred v. Galaza,

Sree Ma SOC NG 6g oi ass 1

Allen v. Roe

SH: PE EAE Eg aint ig invoked a toeae Kuch coin enbeas 12

Amico v. Alameida,

Se es Pe SOP MI IEE ick Cais Vd phe ds he eB REL vhdd ee eG 1}

Anderson v. Clarke,

Pe: WP IE IE os concn db crdesdovcneieelikeo ieee 14

erson v. Lamarque, .

PEF CG I obs kc nk hve Pas wo bv ecke cobcneA ee 12

Andrews v. Lewis,

er: SP aes Pir os on cb isla ore a ce

Bailey v. Castro,

See PPO IS oa Fis dia d ves ha sh ae ee 13

Barries v. Larson

fo Be Re. Ee Rani Ober ay RERUN MY RIPE ena Sr tY 12

Baxter v. Roe,

re ts SN I PIE hs bc tcc évndeivecbics alae 13

Benscoter v. McGrath,

Seen PU BONNE FI io oo ss dre Fic Kader done keveks Revwign ea 13

TABLE OF AUTHORI Cont’d

Page

FEDERAL CASES

Blanton v. Terhune,

ee eR ns cn ec utivank eve ah bebbivbetic ved deus ade wes 13

Bonner v. Cambra,

Se ee DE SI nos cn a ca doneabante bworbnckavensedoues 1]

Bryant v. Adams,

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

ee Oe I SS wav gv ee cesve cueksawas cored uanbeeuel ll

Butler v. Hernandez,

I Cr ee wan Suances 11

ali of California Men's Colon

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

opinion wi ds eded on denial of rhrg., 365 F.3d 391 (2004) ......... ll

Clark v. Lamarque,

RM, PEEL NED 6 ck co cab Cobia dcdskcckavabensdeekees tus: 12

Clarke vy. Galaza,

Ps AI oss vi v's bch ev dascedcadeeed cs utckaebbson 12

Clayton v. Fairman,

SIE: RUIN OUI. > ob dea Sid vax wae dn ndeer ele cwcridsdnecan. 12

llins y. Pliler.

ey PU UPPER INCIIIID.. ss > hs V.c'a'e'srn'd beh Go Gn oo Su ddate de cence. 14°

Cook v. Galaza,

Se SUEUR IIIs hi. ys vacessieucevecereuweknc cn chee. 13

Crawford v. Small

Pr ees Se CE ID os ss vick cc wade Cece keboueceieeubusewes: ll

rutcher v. Garci

ee ee, Ses SO SEs vio coy no ek decided hdeces ocdckdcs ose 1]

TIES (Cont'd

Page

DE ASES

dv. une.

Pe, BAW PRM Rs lua ok dle cee dubcn sdb cadeenvenubasnls ae

D vy. Gal

ps SE AI din co nx ce cok dion vos deb neihae ¥ibaed ce caee 12

Earle y. R S

Se TE a WEE ITE oo oe hea oa. Gln ccc cuwesBeecubalebie beck 10

Ewing v. California,

Pe BE Ey bb och chines Pca debt che bie eee Kebbhhnkkc 8, 16

French v. Duncan,

No. 04-57067, 2006, WL 679932 (9th Cir. Mar. 15, 2006) ............ccceeeeecee 10

Gayles-Shealy v. Adams,

Fe IEE os deve Genco Saks ode Gary ap ce bae tease ebawake 12

Gonzales v. Terhune,

Pen en PE: II Si cuca evetch ios ees See 11

Grayson v. Castro,

ee Ms PE CIUNGIE PIOUE So dod daddy vacua acecc deeb cis kee deeb ss 13

v. lle,

re RE BI od i oak eouhdlauedoouewardiekeieeiGeds 13

Guzman v. Adams,

re i CN i ve on Kuk bait oth oil folk talib 11

Harmelin v. Michigan,

TE RN a a a tn ov Ne ea eS a 5, 8, 16

Hemandez v. Almeida,

Pena ee HPCE SEIN, fo 5055s cule G.es vee 10

Holland v. Jackson,

SNe EMI oo So vanenekndecesa Aber k ee es ee 18

Vil

L, RITIES (Cont’d

FEDERAL CASES

Holland v. Jackson,

TD 6 oink 40 10s Kein cub Cos 0d CAS bebe ee akddesskeeerieeee 20

Huegerich v. Lamargue,

FR FI Coe CR BD vob vcadp eceaneniectaysaivenstakiseuneekois 12

Johnson v. Finn,

GEN. CEP RG FO ios hiv’ deed dec scvdcnsvendeadesskxaveceies 13

Johnson v. Mueller,

a i FOP ND IO i bh kk ida ben dodes eid taekieneeeeueleien 12

Johnson v. Pliler,

Gs Se GE BI os. Vcp bk covdendonckavadevdixiacdiiesieal 14

Jones v. Castro

SE Pe Pe Cs MOE os ok bn 5 cv deco ced vekoedecentes cetaescmens 11

Jones v. Taylor,

CRE AO Fae Oe FON oo seikecthes deste ae 13

Joseph v. Lewis,

Oe ee Fe Tih CO FOO oii oaks Kc bk aibecetehineeees Cosa eee 12

Kenyatta v. Stewart, :

Le Os POE BOO BOE io.'n ie veivcin cn ddcadeesi rite 14

King v. Clarke,

2 ie I, SOR a a ah tpkn dt dib asco Kanab dewerii nesta 13

Kunkle v. Galaza,

Ce en Ps SA, PIII os 6 pa 0.6 doce boc kaha esau ee 14

LaCroix v. Harris,

Ta IE Be kis bad ca hav dhebacoe kind eoeee 12

LaCroix v. Harris,

a Fe Fp er ar any me Sane y, ll

Vili

T OF "d

Page

FEDERAL CASES

Le v. Castro,

rr nC nn s,s Jn See cobaateegerduscusbavscdubisvencdaee 14

Lockyer v. Andrade,

ea. os velba wh vas engeeeceneh ts passim

Marshall v. Clark,

PUNE bee, WIS OCH, BOND) «occ ce ccevecesscvccvescecseners rete

Mason v. Hamlet,

oon nals Sue cy hdae wate suee avciudekeuduwhesa 1]

Morgan v. Rice,

oa dies elds by ka RaWaee kin ostedenecvedes 13

Nible v. Terhune,

os es ok Cale ak kun eshd es kteeetucesesestes ll

Nutt v. Knowles,

ee ov eb decdvovevcetcucsbervissessecteeves 10

Pena v. Terhune, -

EE os cd de bedasdveyeeve betes oboevetaesess 12

Prince v. Adams,

80 Fed. Appx. 570 (9th Cir. 2003) ......... a a ake Ae a oe a oe 12

Quinones v. Garcia,

on ce ud dng uvewwe vk abedew sbvveceeéeceaves 1]

ee dp edenwcudcben 6, 9, 10, 17

Ramirez v. Terhune,

et abdeducicccacecdeses )

¥,

ON, en ceccuesoccomececcccraccencs 10

IX

TABLE OF AUTHORITIES ;

FEDERAL CASES

Rico v. Terhune,

ee, Be eis do dacesivd dcdcebewes's deaesedenebaiecuaal 13

Rios v. Garcia,

ED boc vou duksccnddoudeteudesueddendetaskcecendas ll

Robinson v. California,

FOREN ivi ben bchdecévedndapcnbivdtikvkstenass eon 17

Es I 6.5 50 Ah ive ice des eo cube ven 13

Robles v. Clarke,

Oe Bee Se UE i ss sc cord cp buadonssnse kuleson condense Pun 14

POR a FIG aos os. bk dca hcbcvi. cd ds ohho bis canted 11

Romero v. Galaza,

Pe Pe NIG AEE ou gv pasics sve e sedans endevunicadines tee, 14

Rummel v. Estelle,

OR cn bcd Gib ae ped bcdeadvnbid tebdidweleviebusk ee 5,8

Samuel v, Lewis,

en Ss OO CE oo bile Nico Kew hu hos sheen deces de ccue tue: 13

Shirley v. Small,

See, ME: FEF CEE BOON 0 a cw ci ice Zeb abddcesd desanckbadcca ka, 13

Sigala v. Campbell,

SP ee As GD. 6535s ies) coon cesceca, i

Skinner v. Roe,

Pee ee ME PUTIN UR SIU occ isan ov deb de bkbdece Mb dacockuwiose lesa 11

Smith v. Giurbino, .

Fe I HIE 5 eh heb dna cintn bocdhadenctbatnchiveuntoe 12

Page

FEDE CAS

Solem v. Helm,

EAE OLA NEED ORGAN CTT 4, 6,8, 15

NS See eNEehabahs ait ivxdeansese pase ieeidacveb evens 16

v. Clarke

68 Fed. Appx. 14 (9th Cir. MUEKaesa Dnbasknthh ayo kne ni ecu NO 13

To v. Roe

eth RRR p UO ete ere Le oe Me ea 14

Turner v. Candelaria, :

Lob the ie xcicpecl ect, BERNE Pat aD Seema A eam NS See 13

allace v. :

er CPR ents evn deus Gos bok vo oeohieece: 10

Wallace v. Mueller

PanIIT OUI gcse) Cnr reek > ven cevechcrusso ee 12

Walters v. Fairman,

ees I I alos) bociecceverednecevnseek eRe 13

Webb v. McGrath,

beatin wea tte «thst cae tO EOE POPE SS TES Ie 10

Webb v. Yist,

TRIN TOI I ho i gi er ee 12

Weems v. United States,

tii ion diidn vic kipis vleacieesia iii caeaen ueie ees, 17

Williams y. Galaza,

FeO SMI io sic bios as odomnemedsinse ch tecocc. ccbe a. 12

Williams y. Taylor,

PE NEES Can aecnistdabisds tuethins ised ke 8, 18, 20

TABLE OF TIE ni’d

Page

FEDERAL CASES

Wrobleski v. Guirbino,

See ee NG POUR obo eie sind cavers heesds aressedsneneneune 1}

STATE CASES

People v. Weddle,

SR MT URUOWED: 6 Sno benkananpanadedavasasesdiee feet ee eee eee 5

DERAL STATUTES 3

RE SE sR gcse g fciue Gis Ve hess Ki kAR ERECT TATRA durdeties 2

2BUSC. $2Z7SMGT) 2.020.000 Db meaebnrieds ed AMaiwE LL Madee Ri peeeuid in 7

Be I x04 eater he bnnchcavinssissceeexbweesecencedus 1, 18, 19, 20, 21

PRE EE Sc vias ahi dnekudavcubhe aint sede ¥ueckesiedsaneakepescera 18

TATE STATUTES

I Bb cig ev ke Gis ceo hid Vd NN 4 end GhEs Over isbn R dees CdR se ap 3

Cal. Penal Code § 211 ............ abuas ce se tere ka taceen ine dav bee tases tapenae’ wi 4

FECL Ra AEE EOE? BG NICSE S Ce APIA HDS ee 4

Cal. Penal Code § 1170.12 eae AID Sap set eo OURS GATS PN SIDS PP BON HEE POLED 4

NS ds oso beh ai Cia ph ven woken bdeeeediees biedebd sp aewdendcenve 3

xii

IN THE SUPREME COURT OF THE UNITED STATES

SANTOS L. REYES,

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 two questions it asks this Court to review. This Court should decline

to review both. With respect to petitioner’s first claim — that in light of Lockyer v. Andrade,

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

Califeeda Gove celine exmssnse ~ eviews deeubive dusted benenno (1) tia Cost tn Anieate

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.

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

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

case. Petitioner’s claim is premised on an assumption that Mr. Reyes 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 and the state may have failed to provide the entire state record to the

district court as part of the federal habeas proceedings. 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. Reyes because the recccd before it is incomplete, and direct the district court

“to develop the record further and to determine in the first instance whether Reyes is entitled to

relief.” (Pet. App. Al3). Should the state have a legitimate argument for why Mr. Reyes 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.

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. Al-

A17) is reported at 399 F.3d 964 (9 Cir. 2005).

JURISDICTION

The opinion and judgment of the court of appeals was filed on March 4, 2005. A petition

for rehearing en banc was denied on October 12, 2005. This petition for a writ of certiorari was

filed on December 7, 2005. This Court’s jurisdiction is invoked under 28 U.S.C. § 1254(1).

Factual Background.

On September 18, 1997, Santos Reyes entered the Department of Motor Vehicles

(“DMV”) office on Waterman Avenue in San Bernardino, California. He filled out an

application for a driver’s license under the name of his cousin, Miguel Soto, who purportedly

knew how to drive but not how to read. Mr. Reyes signed the application, which stated that the

information was being provided under penalty of perjury. After Mr. Reyes signed the

application, DMV employee Debra Alexander gave him two copies of the written driver’s license

test. Alexander suspected that Reyes was cheating on the exam by using a “crib sheet.” She

confiscated the two tests from Mr. Reyes and began filling out paperwork related to Reyes’s

alleged cheating. Meanwhile, Reyes left the DMV building. Alexander contacted California

Highway Patrol Officer José Lopez, who was stationed at the DMV. Officer Lopez followed Mr.

Reyes, who was walking away. After catching up with him, Officer Lopez patted-down Reyes

and handcuffed him. Mr. Reyes cooperated with Officer Lopez and voluntarily admitted that he

had attempted to take the written driver’s license test for Soto. The encounter was without

violence. (Pet. App. A4-A5).

On March 2, 1998, Mr. Reyes was arraigned in San Bernardino County Superior Court on

an Amended Information, charging him with one count of perjury in violation of Cal. Penal Code

§ 118, for using his cousin’s name on a DMV application.' Mr. Reyes was found to qualify for

‘Rather than charging him with felony perjury, the state could have charged him with the

more appropriate misdemeanor offense of violating Cal. Veh. Code § 20: using a false name or

making a false statement on any document filed with the Department of Motor Vehicles. (Pet.

3

California’s Three Strikes sentencing enhancement under Cal. Penal Code §§ 1170.12(a)-(d) and

667((b)-{i) because of two prior convictions: one as a juvenile in 1981 for residential burglary in

violation of Cal. Penal Code § 459; and one in 1987 for a robbery with a weapon in violation of

Cal. Penal Code § 211. (Pet. App. A5).

The State offered Mr. Reyes a deal of four years imprisonment in exchange for a guilty

plea to the perjury charge, but Reyes rejected the plea deal and exercised his constitutional night

to a jury trial? On March 5, 1998, a jury convicted Mr. Reyes of the perjury charge and found

the Three Strikes special allegations true. On April 2, 1998, the trial court refused Mr. Reyes’s

request to strike one of his prior strikes, and sentenced him to an indeterminate term of twenty-

six years to life. (Pet. App. A5-A6).

Mr. ies appealed the judgment, claiming, among other things, that his sentence

violated the Eighth Amendment’s prohibition on cruel and unusual punishment. On June 9,

1999, the California Court of Appeal affirmed Reyes’s conviction and sentence. The court

indicated that “{c]onsidered in isolation, a prison sentence of 26 years to life is clearly

unwarranted for defendant’s perjury offense. But the punishment was not merely for the present

App. 8 n.4). The only reason for the charging decision appears to be the state’s desire to seck a

three strikes sentence. The Ninth Circuit correctly noted, though, that “[t}he fact that the

California legislature deemed making false statements on a driver’s license application to be a

misdemeanor reflects that Reyes’ offense ‘is viewe” by society to be among the less serious

offenses.” (Id.) (quoting Solem v. Helm, 463 U.S. 277, 296 (1983)).

“in a pre-trial hearing, the trial court also indicated to Mr. Reyes that it had reviewed his

attorney’s motion to strike one of the priors, and although the court did not “normally commit or

make a decision until after someone has been convicted,” that were Reyes to go to trial and the

priors were found to be true, that the court “would certainly consider striking the older prior, the

‘81 prior, for some legal reasons because of the age of the prior and other factors that your

attomey and the district attorney have disclosed to me,” and that “{t}he Court could put you then

in prison for eight years.” (Dist. Ct. Doc. 15, Exh. A at 4 [Tr. of 12/8/97]).

4

offense, but also for defendant’s recidivist behavior.” (Pet. App. J68). In assessing Mr. Reyes’s

federal Eighth Amendment claim, the court merely stated:

The Eighth Amendment of the federal Constitution is violated

when a sentence is “grossly disproportionate” to the crime.

(Harmelin v. Michigan (1991) 501 U.S. 957, 1001.) Under the

federal Constitution, state statutes imposing enhanced terms for

recidivist behavior have long been upheld. (Rummel v. Estelle

(1980) 445 U.S. 263, 268.) Rare is the punishment that Goes not

survive gross disproportionality analysis. (People v. Weddle

(1991) 1 Cal.App.4th 1190, 1193.) In this case, defendant has filed

to show that his punishment is grossly disproportionate to his

recidivist behavior, as demonstrated by his past and present

offenses.

(Pet. App. J71). On September 1, 1999, the California Supreme Court denied Reyes’s petition

for review without explanation. (Pet. App. A6, B18).

Federal Habeas Corpus Proceedings.

On July 26, 2000, Mr. Reyes timely filed a 28 U.S.C. § 2254 habeas corpus petition in the

United States District Court for the Central District of California. On September 21, 2000,

Magistrate Judge Charles F. Eick issued a report and recommendation urging that Reyes’s

petition be dismissed with prejudice. On October 12, 2000, United States District Judge Virginia

A. Phillips adopted the report and recommendation and dismissed Mr. Reyes’s petition. The

district court also denied his request for a certificate of appealability. (Pet. App. A6, E34-E35,

F36, G37-G38, H39-H46).

Court of Appeals Proceedings.

On October 31, 2000, Reyes timely filed a notice of appeal and a request for certificate of

appealability. On May 2, 2001, the United States Court of Appeals for the Ninth Circuit granted

Reyes a certificate of appealability on the limited issue whether his Three Strikes sentence

violated the Eighth Amendment. (Pet. App. A6).

Although the Ninth Circuit initially affirmed the district court in an unpublished 2-1

decision, on rehearing, the court in a 2-1 published decision remanded the case to the district

court for additional fact development on the circumstances surrounding Mr. Reyes’s prior

convictions and for the district court to determine in the first instance whether Mr. Reyes is

entitled to relief. (Pet. App. A13).

The court first explained that in Ramirez v. Castro, 365 F.3d 755, 756, 770 (9" Cir,

2004), it previously held, relying on Lockyer v. Andrade, “38 U.S. 63, 72-73 (2003), that Eighth

Amendment challenges to Three Strikes sentences remain viable in certain “exceedingly rare”

cases. In Ramirez, the court applied the Supreme Court’s analysis from Solem v. Helm, 463 U.S.

277 (1983), to examine as an initial matter whether the petitioner’s extreme sentence is justified

by the gravity of his most recent offense and criminal history. The court concluded in Ramirez

that the petitioner’s sentence did not match the gravity of the triggering offense, or of his prior

offenses, and directed that habeas relief be granted.’ (Pei. App. A7-A9).

Applying that circuit precedent to Mr. Reyes’s case, the court concluded that Mr. Reyes’s

sentence also did not match the gravity of his triggering offense of falsifying a driver’s license

application which was nonviolent and not a crime targeted at another individual, especially since

the California legislature has deemed making a false statement on a driver’s license application

to be a misdemeanor, and thus reflects that the offense is viewed by society as among the less

*The California Attomey General did not seek review of the Ramirez decision in “the

interest of justice,” and called it an “exceedingly rare case.” (Pet. App. 7 n.3 (citing Henry

Weinstein, Lockyer Gives Up Three-Strikes Case, L.A. Times, Apr. 30, 2004, at B6, available at

2004 WL 55909787). -

serious offenses. (Pet. App. A8). The court concluded, however, that it did not have enough

information about the circumstances surrounding Mr. Reyes’s armed robbery conviction but that

“(t]he paucity of detail in the record indicates that this offense may have been non-violent.” (Pet.

App. 9-10). Because it believed that “but for Reyes’ armed robbery conviction, Reyes would

appear to have a plausible case for relief,” but the record before the court was insufficient for it to

conduct a proper analysis, the court “remand{ed] for the district court to develop the record

further and to determine in the first instance whether Reyes is entitled to relief.” (Pet. App. Al2-

Al3).

ARGUMENT

I

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 applicable to sentences for terms of years.” Thus, the Court

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

‘contrary to’ or ‘unreasonable application of framework is the gross disproportionality principle,

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

case.” Id. at 3 (citing Harmelin v. Michigan, 501 U.S. 957, 1001 (1991) (Kennedy, J.,

concurring in part and concurring in the judgment); Solem v, Helm, 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 upholding an Eighth Amendment challenge to a sentence properly imposed under

California’s Three Strikes law contrary to, or an unreasonable application of, this Court’s clearly

established precedent.” (Pet. 8). 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 federal habeas corpus review of an Eighth Amendment challenge to a sentence under

California’s Three Strikes law,” (Pet. 10), 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 argument for why this case warrants review by this

Court — 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’s recent decisions confirm

that the court continues to misunderstand the scope of federal habeas corpus review, ar 4

therefore needs additional guidance.” (Pet. 5). It maintains that the Ninth Circuit has “failed to

be guided by the criteria presented in this Court’s most recent opinion concerning habeas review

of Eighth Amendment challenges in California, (Pet. 11), and that the court’s decision in the

instant case foretells “inconsistent outcomes dependent on how different panels choose to parse

facts.” (Pet. 10). 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 the decision in Andrade, the Ninth Circuit has

[already] identified three cases that it feels potentially qualify as exceedingly rare,” the instant

case, Ramirez v. Terhune, 128 Fed. Appx. 663 (2004), a case in which the state is suidhlianiiety

seeking a writ of certiorari (No. 05-736), and Ramirez v. Castro, 365 F.3d 755 (9" Cir. 2004).

(Pet. 10). But the state’s rhetoric is belied by reality. Its argument is misleading and fails to give

the entire 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 v. 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. A7 at n.3 (“We note that

the California Attomey 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

case.””) (citing Henry Weinstein, Lockyer Gives Up Three-Strikes Case, L.A. Times, Apr. 30,

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

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

consistently and repeatedly — indeed, at least eighty times — denied relief to a California three

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

the 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

“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.

10

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 chet 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 (9

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

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

park ranger); Crawford v. Small, 116 Fed. Appx. 876 (9" Cir. 2004) (second degree burglary);

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

$79.98); Jones v. Castro, 111 Fed. Appx. 942 (9 Cir. 2004) (escape without force or violence),

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

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

Bonner v. Cambra, 105 Fed. Appx. 147 o" Cir. 2004) (shoplifting tool set priced at $199.99 and

car polisher 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

I]

Fed. Appx. 219 (9" Cir. 2003) (petty theft with a ne 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 (9° 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)

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

Appx. 991 (9 Cir. 2003) (failing to re-register as a sex offender after changing address),

Huegerich v, Lamarque, 78 Fed. Appx. 610 (9 Cir. 2003); Barries v. Larson, 78 Fed. Appx. 7

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

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

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

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

(shoplifting two pairs of jeans with total value between $60 and $64); Johnson v. Mueller, 73

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

Appx. 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. Ylst, 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 y. Ayers, 69 Fed. Appx. 390 (9* Cir. 2003) (unlawfully driving a

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

12

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* Cir. 2003) (31 years to

life for shoplifting two videotapes and a bottle of liquor); Morgan v. Rice, 68 Fed. Appx. 111 (9”

Cir. 2003) (shoplifting a baseball glove); Gregory v. Ratelle, 68 Fed. Appx. 45 (9" Cir. 2003)

(burglary of a vehicle and petty theft with a prior); Thomas v. Clarke, 68 Fed. Appx. 14 (9* Cir.

2003) (receiving stolen property [checks and a license plate]); Baxter v. Roe, 67 Fed. Appx. 493

(9* Cir. 2003) (shoplifting tools); King v. Clarke, 67 Fed. Appx. 460 (9" Cir. 2003) (shoplifting

two cartons of cigarettes); Bailey v. Castro, 66 Fed. Appx. 103 (9" Cir. 2003) (commercial

burglary); Cook v. Galaza, 65 Fed. Appx. 106 (9" Cir. 2003) (possession of 0.16 gram

methamphetamine); Tuer 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,

13

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. Appx. 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.

Pliler, 62 Fed. Appx. 180 (9" Cir. 2003) (selling or furnishing 0.15 gram rock cocaine); Romero

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

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

482 (9" Cir. 2003) (possession of 6.5 grams of methamphetamine for sale); Collins v. Pliler, 61

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

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

heroin]).’ 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. 8). It argues that the

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

*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. Reyes’s

triggering offense was nonviolent.

14

the nature of the triggering offense as well as the criminal history,” has demonstrated “a

fundamental misconception of’ Andrade (Pet. 8). But it is the state that misreads Andrade and

this Court’s precedents. The Ninth Circuit’s post-Andrade analysis in Ramirez v. Castro is

entirely appropriate.

In the context of a “three strikes” sentence, whether or not a particular case is the

“exceedingly rare” case which violates the Eighth Amendment is entirely dependent on the facts

in that case, i.e., the nature and circumstances of both the triggering offense and the defendant’s

criminal history. To determine whether or not ¢ defendant’s crime and criminal history make the

sentence imposed grossly disproportionate, it is necessary for a reviewing court to look at the

facts surrounding each of the offenses involved. That is all the Ninth Circuit has said it needs to

do in this case. And that is entirely consistent with this Court’s Eighth Amendment

jurisprudence.

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 analysis 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

US. 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

15

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

1001, 1002. In Ewing, the plurality looked beyond the mere fact of conviction as part of its

analysis, noting that Ewing’s conduct in his prior strikes involved accosting a victim in the mail

room of an apartment complex, claiming to have a gun before forcing the victim back to his

apartment at knife-point to steal the victim’s money and credit cards. 538 U.S. at 19. The

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

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

Court looked beyond Andrade’s most recent convictions to detail his extensive criminal history,

and held that in light of that criminal history his sentence was not outside the “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 clea ly 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

‘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).

16

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

no California prisoner serving a three strikes sentence can ever qualify for habeas relief of an

Eighth Amendment claim — regardless of the facts and circumstances in the case. The state’s

argument is premised on the erroneous belief that all three strikes sentences in California are

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

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

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

via the Fourteenth Amendment), and which vps reaffirmed in Andrade, which hold that any

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

cruel and unusual punishment. The mere fact that California says a sentence satisfies 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 ie 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 giinighe 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. Reyes’s prior strikes. Accordingly, the writ should be denied on this

issue.

17

0

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. Reyes 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 to develop the factual record as to

the circumstances surrounding his prior strikes. (Pet. 11-13). It argues that the record fails to

show that Mr. Reyes 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. 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 only remanded “for the district

court to develop the record further.” (Pet. App. Al3). If the court is able to develop the record

18

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 Reyes 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. Reyes’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 strike were

not presented in any state court proceedings. Indeed, Mr. Reyes (through counsel) argued in his

opening brief in the Ninth Circuit:

The record on appeal presented to the California Court of Appeal,

Fourth District, Division Two, the California Supreme Court, and

the United States District Court relative to the petition for a writ of

habeas corpus filed therein did not include Exhibits 5, 6, and 7

which, according to the exhibit description (SCT, P. 148; ER 10, p.

73), were the evidence relative to the priors alleged against

appellant.

Reyes Ninth Cir. Opening Br., available at 2001 WL 34355185, at *22. 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 never submitted to the district court by the state

when it lodged the state court proceedings. 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

19

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 evidentiary hearing under 28 U.S.C. § 2254(e)(2). This Court

has made clear that “[u]nder 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.

Id. at 435.

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

whether Mr. Reyes 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

his 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

development 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

20

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. Reyes’s prior robbery conviction 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.

CONCLUSION

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

Respectfully submitted,

SEAN K. KENNEDY

Acting Federal Public Defender

Central District of California

DATED: May ‘S, 2006 VW Ls

JONATHAN D. LIBBY

Deputy Federal Public Defender

Central District of California

Counsel of Record

21

No. 05-755

IN THE SUPREME COURT OF THE UNITED STATES

S.W. ORNOSKL, Acting Warden,

Petitioner,

-V.-

SANTOS L. REYES,

Respondent.

CERTIFICATE OF SERVICE

I, Jonathan D. Libby, a member of the Bar of this Court, hereby certify pursuant to Sup.

Ct. R. 29 that on this 15th day of May, 2006, a copy of Motion for Leave to Proceed in Forma

Pauperis and Brief for Respondent in Opposition (to Petition for Writ of Certiorari to the United

States Court of Appeals for the Ninth Circuit) were mailed, postage-prepaid, to:

Douglas P. Danzig, Deputy Attorney General, California Department of Justice, P.O. Box 85266,

San Diego, California 92186-5266, Counsel of Record for Petitioner. »

Respectfully submitted,

— &

DATED: May 'S,, 2006 V7 AES

JONATHAN D. LIBB

Deputy Federal Publi¢ Defender

Central District of California

Counsel of Record

321 East 2nd Street

Los Angeles, CA 90012-4202

Telephone No. (213) 894-2854

Counsel for Respondent Santos L. Reyes

(A) ear ri y U.S.

MAY 26 2006

No. 05-755

OFFICE OF THE CLERK ws

IN THE SUPREME COURT OF THE UNITED STATES

S.W. ORNOSKI, Acting Warden, Petitioner,

v.

SANTOS L. REYES, 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

DOUGLAS P. DANZIG

Deputy Attorney General

Counsel of Record

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Counsel for Petitioner

IN THE SUPREME COURT OF THE UNITED STATES

No. 05-755

S.W. ORNOSKI, Acting Warden, Petitioner,

v.

SANTOS L. REYES, Respondent.

Petitioner S. W. Ornoski, Acting Warden, submits this

orief in reply to Respondent’s Brief In Opposition to the

Petition for Writ of Certiorari

A. Certiorari Should Be Granted Because The Ninth

Circuit’s Published Opinion, Remanding The

Case To The District Court For Further

Development Of The Record, Clearly Conflicts

With This Court’s Relevant Jurisprudence And

The Anti-Terrorism And Effective Death Penalty

Act (AEDPA)

1. Reyes contends there is no need for this Court to review

the first question presented in this case. Opp. at 7. In support

of his contention, Reyes argues that Petitioner has read

something into this Court’s decision in Lockyer v. Andrade, 538

U.S. (2003) that is not there, i.e., that Andrade implicitly held

that a federal habeas court cannot find a state court ruling

upholding an Eighth Amendment challenge to a properly

imposed Three Strikes sentence contrary to, or an unreasonable

application of, this Court’s clearly established precedent. Opp.

at 7-8. He argues that this is so for two reasons. First, he notes

that in Andrade, this Court acknowledged that the gross

disproportionality principle remains applicable in the

exceedingly rare and extreme case. Therefore, he claims, even

a Three Strikes sentence could be grossly disproportionate, and

thus a state court’s contrary conclusion might be an objectively

unreasonable application of this Court’s clearly established law.

Opp. at 8. Second, he notes that in Williams v. Taylor, 529 U.S.

362, 405-06 (2000), this Court held that a state court decision is

contrary to clearly established precedent if it confronts a set of

facts materially indistinguishable from a decision of this Court

and nevertheless arrives at a result different from this Court’s

precedent. Therefore, he claims, if a Three Strikes case

involved facts materially indistinguishable from Solem v. Helm,

463 U.S. 277 (1983), and a state court decision found the

sentence not grossly disproportionate, the state’s decision could

be set aside under 28 U.S.C. § 2254(d)(1). Opp. at 8-9.

Reyes misses the point with both arguments. First, while he

is correct in his assertion that Andrade held a gross

disproportionality principle applies in an exceedingly rare and

extreme case, Andrade itself dealt with virtually the most

exceedingly rare and extreme case California could present

under its Three Strikes law, i.e., two consecutive sentences of

twenty-five years to life with relatively minor triggering

offenses. Nevertheless, this Court held that the state court’s

merits decision was mcither contrary to, nor did it involve an

unreasonable application of, the gross disproportionality

principle. Andrade, 538 U.S. at 73-74. Accordingly, the

implicit holding in Andrade was, as Petitioner argued in the

petition for writ of certiorari, that no properly imposed Three

Strikes sentence could violate the principle, regardless of

whether the state chooses to seek further review in a particular

case or not. See Opp. at 9-10 (citing the California Attorney

Gencral’s statement as to why the State declined to seek further

review of the Ninth Circuit’s decision in Ramirez v. Castro, 365

F.3d 755 (9" Cir. 2004) (Ramirez-l)”

Second, it would be impossible for a Three Strikes case to be

materially indistinguishable from Solem. As this Court has

explained, the facts in Andrade were not materially

indistinguishable from the facts in Solem, if for no other reason

than that Solem involved a life sentence with no possibility of

parole, whereas Andrade retained the possibility of parole, albeit

in practical terms he might never realize that possibility.

Andrade 538 U.S. at 74. In other words, California’s three-

strikes law, even in its harshest form, provides for the

possibility of parole, and therefore a sentence imposed under the

law could never be materially indistinguishable from Solem.

2. Reyes argues granting certiorari is not warranted in this

case because the Ninth Circuit has not granted habeas relief in

this case, and may never do so. Opp. at 9. Noting Petitioner’s

arguments for why this case warrants review by this Court - that

the Ninth Circuit’s recent decisions confirm that the court

continues to misunderstand the scope of federal habeas review,

that the Ninth Circuit has failed to be guided by this Court’s

recent decisions concerning habeas review of Eighth

Amendment challenges, and that the Ninth Circuit’s decision in

1. As to Reyes’s reference to the State’s decision not to seek

further review in Ramirez-I, he seems to be implying that because the State

did not seek further review it endorsed the legal reasoning in the opinion.

Reyes is incorrect. The question of whether to seck further review of a

lower court decision necessarily involves a discretionary policy decision.

Although that decision may include an assessment of the legal reasoning in

an opinion, it also inherently concerns a number of other factors unrelated

to whether the opinion was legally sound or not. Stated another way, a

decision to not seek further review no more suggests an endorsement of the

underlying legal reasoning than this Court’ denial of a petition for writ of

certiorari suggests an endorsement of an underlying decision. Accordingly,

nothing about the State's decision to not seek further review in Ramirez-|

has anything to do with the question presented to this Court, i.e., whether

federal habeas relief can be granted on Eighth Amendment grounds for any

properly imposed Three-Strikes sentence.

this case will lead to inconsistent outcomes dependent on how

panels choose to parse facts - Reyes argues that the inchoate

nature of the remedy underlying the Ninth Circuit’s opinion

belies Petitioner’s rhetoric, reveals Petitioner’s argument is

misleading, and fails to give the entire picture. Opp. at 9.

Reyes fails to comprehend the critical feature of the opinion,

however. Although the ultimate disposition of this case has not

yet been determined, the Ninth Circuit published its opinion.

There can be no reason for publishing a decision remanding this

case to develop the specific facts concerning a prior conviction,

rather than accepting the State’s definition of the crime, other

than to establish a vehicle for dismantling Andrade. This is

evidenced by the fact that, not long after ordering the opinion

published the Ninth Circuit cited it as authority for ordering the

same sort of record development in another case, 1.e., Ramirez

v. Terhune, 128 Fed. Appx. 663 (2004) (Ramirez-Il), which is

also the subject of a petition for writ of certiorari currently

pending in this Court (docket number 05-736). This procedural

history cannot be ignored. As the dissent in this case pointed

out, some judges on the Ninth Circuit chafe at this Court’s

decisions in Ewing v. California, 538 U.S. 11 (2003), and

Andrade. See Reyes v. Brown, 399 F.3d 964, 971 (9" Cir. 2005)

(Tallman, J., dissenting).

Thus, the history in this case strongly suggests that if the

Ninth Circuit’s opinion is left intact, the fundamental role of a

habeas court under the AEDPA, i.e., to determine whether the

state court’s merits decision was contrary to, or involved an

unreasonable application of, this Court’s controlling precedent,

may be subjugated to a panel’s subjective opinion as to what

sort of sentence is justified. Such a notion is inconsistent with

this Court’s recent habeas jurisprudence. See Harmelin v.

Michigan, 501 U.S. 957 (1991) (proportionality review by

federal courts should be informed, te the maximum possible

extent, by objective factors) (Kennedy, J., concurring); Andrade,

538 U.S. at 76 (the proportionality principle, whose precise

contours are unclear, gives legislatures broad discretion to

fashion a sentence).

3. Reyes further argues that certiorari should not be granted

because, relying on Andrade, the Ninth Circuit has consistently

denied habeas relief to Three Strikes prisoners, even where the

triggering offense was minor. Opp. at 10. In support of his

contention Reyes cites numerous cases where the Ninth Circuit

denied habeas relief. Opp. at 10-14. Therefore, he maintains,

it cannot be reasonably argued that the Ninth Circuit is a

"renegade court gone amok," such that this Court’s intervention

is required. Opp. at 14.

Preliminarily, Petitioner submits that Reyes’s rhetoric is

unwarranted and inaccurate. Petitioner has never suggested that

the Ninth Circuit is a renegade court gone amok. To the

contrary, Petitioner recognizes that the judges of the Ninth

Circuit apply the law conscientiously, as they understand it.

Nor does Petitioner dispute the notion that in large part the

Ninth Circuit has reached the correct result in cases seemingly

controlled by Andrade. Nevertheless, it is also apparent that

some panels of the court appear to misunderstand this Court’s

recent habeas jurisprudence. And as a resuli, they appear to

want to act in equity rather than as a habeas court.

In any event, Petitioner draws a different conclusion than the

one Reyes draws from the Ninth Circuit's denial of habeas relief

in numerous Three Strikes cases involving minor triggering

offenses. A federal court may grant a certificate of appealability

in a habeas cae involving a state prisoner upon a substantial

showing of the denial of a constitutional right. 28 U.S.C. §

2253(c)(2). This standard requires a "showing that reasonable

jurists could debate whether . . . the petition should have been

resolved in a different manner or that the issues presented were

‘adequate to deserve encouragement to proceed further.’" Slack

v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v.

Estelle, 463 U.S. 880, 893 and n. 4). Thus, the fact that the

Ninth Circuit and the district courts within its jurisdiction have

granted certificates of appealability in over eighty cases means

that, in a significant number of Three Strikes cases the federal

courts have concluded that the question of whether the State

correctly applied this Court’s Eighth Amendment jurisprudence

is debatable among reasonable jurists. Surely, that was not the

State’s understanding of the implications of this Court’s

decision in Andrade. Stated another way, the sheer volume of

grants of certificates of appealability suggests that a significant

portion of the Ninth Circuit and the district courts within the

circuit still do not understand the limitations this Court placed

on federal habeas courts when they review the decisions of

California Courts in Three Strikes cases involving Eighth

Amendment claims. Accordingly, certiorari is warranted.

4. Citing Solem’s three-part proportionality test, Reyes argues

granting certiorari is not warranted in this case because this

Court has endorsed the idea that, in conducting a proportionality

analysis under the Eighth Amendment, courts may use other

accepted principles in measuring the harm caused or threatened

to the victim or society. Citing Ewing and Harmelin, he argues

that looking to the nature and circumstances of a defendant’s

offenses is exactly what a habeas court must do, because

otherwise a habeas court cannot determine whether it is the

exceedingly rare case where the sentence was grossly

disproportionate and a state court decision to the contrary was

an unreasonable application of that principle. Opp. at 15-16.

Once again, Reyes misses the point. Solem was a pre-

AEDPA case. Thus, it did not limit a federal habeas court to

deciding whether a state court’s determination of a term-of-

years sentence was objectively unreasonable not. In addition,

the continued validity of Solem is questinable in that in

Harmelin five justices disapproved the three-part test. Thus,

Solem has limited application in addressing the question

presented in this case. Besides, neither Ewing nor Harmelin

involved habeas review. Moreover, as argued in the petition for

writ of certiorari in this case, this Court's decision in Ewing has

little, ifany, precedential value regarding federal habeas review.

It was a plurality decision of three Justices, with two other

Justices joining only the judgment, one on the grounds that the

Eighth Amendment contains no proportionality principle, and

the other on the grounds that any proportionality principle

contained in the Eighth Amendment applies only to modes of

punishment. Thus, the only rule of law that can be distilled

from Ewing is that. in California, a sentence of twenty-five

years to life for a Three Strikes recidivist who commits grand

theft does not violate the Eighth Amendment. Why it does not

violate the Eighth Amendment is still subject to debate.

The point is that, in Andrade this Court acknowledged that

the Court has not provided any clearly-established precedent -

at least none that is particularly useful - regarding how to apply

the vague gross disproportionality principle to California’s

Three Strikes law. That is why the Court limited application of

the principle to the exceedingly rare and extreme case.

Petitioner construes the Court’s holding to mean that the

principle applies to a sentence that is so extreme that no one

would dispute that it is disproportionate. The principle certainly

does not apply to recidivist sentencing schemes such as

California’s Three Strikes law. Accordingly this Court’s

intervention in this case is warranted.

5. Reyes argues that this Court should not grant a writ of

certiorari in this case because, when a statute is unclear

regarding whether an enhancement is proper this Court has

permitted a court to look beyond the statute of conviction to

other evidence indicating the nature of the offense. Opp. at 16

n. 6. But California’s three-strikes law is not an enhancement;

it is an alternative sentencing scheme for certain specified

recidivists. Thus, Reyes’s point ts irrelevant. Moreover,

California’s three-strikes law is absolute. And, in this case, it

flatly requires a sentence of twenty-five year to life because

Reyes has previously been convicted of two enumerated serious

or violent felonies. Thus, there is no ambiguity in the statute in

question here.

6. Reyes further claims this Court should deny the petition for

writ of certiorari in this case because Petitioner seeks to have

this Court declare that no California prisoner serving a three-

strikes sentence can ever qualify for habeas relief on an Eighth

Amendment claim, regardless of the facts and circumstances in

the case. Opp. at 17. Reyes’s contention is a distortion of

Petitioner’s request. The notion underlying Petitioner's

argument is that no properly imposed three-strikes sentence

could qualify for habeas relief on Eighth Amendment grounds

until such time as this Court provides greater clarity regarding

what factors may indicate gross disproportionality. See

Andrade, 538 U.S. at 72 (our cases exhibit a lack of clarity

regarding what factors may indicate gross disproportionality).

Until that occurs, federal habeas review should be far more

limited than is apparent in this case.

7. Finally, Reyes maintains certiorari should not be granted

in this case because the State is seeking to have this Court

overrule an entire line of cases, including Weems v. United

States, 217 U.S. 349 (1910), Solem v. Helm, Harmelin vy.

Michigan, Ewing v. California, and Lockyer v. Andrade. Opp.

at 17. Reyes’s contention reflects a persistent misunderstanding

of the relationship between this Court’s Eighth Amendment

jurisprudence and its habeas jurisprudence.

Weems, Solem, Harmelin, and Ewing are all cases in which

this Court directly addressed the question of whether a term-of-

years sentence violated the Eighth Amendment. The instant

matter, however, involves a federal court sitting in habeas

review of a state court decision. Thus, the analysis shifts from

the question of whether the sentence violates the Eighth

Amendment to whether there are any clearly established

principles concerning the Eight Amendment’s application to

terms-of-years sentences, and if so, whether the state court's

decision was contrary to, or involved an unreasonable

application of, those principles. As this Court has implicitly

acknowledged, however, the only clearly established principle

. addressing this question is so vague that it cannot be usefully

applied. Thus, if this Court were to hold as Petitioner has

requested, it would not negate any of this Court’s pure Eighth

Amendment jurisprudence, whatsoever. It would simply make

explicit what has previously been implicit, i.e., that given the

current state of this Court’s Eighth Amendment jurisprudence

and the current state of California’s Three Strikes law, no

sentence properly imposed under the state statute, which had

been upheld on state appeal or habeas corpus, could be contrary

to, or involve an objectively unreasonable application of,

controlling precedent.

B. Certiorari Should Be Granted Because The Ninth

Circuit’s Published Opinion, Remanding This

Case To The District Court For Further

Development Of The Record, Fails To Adhere to

The Express Limitations Congress Imposed

Through The AEDPA And Conflicts With This

Court’s Relevant Precedent

1. Reyes argues that a writ of certiorari should not be granted

as to the second question presented in this case because the

Ninth Circuit "only remanded ‘for the district court to develop

the record further,’" and therefore Petitioner’s assertion, that the

district court will be required to hold an evidentiary hearing, is

incorrect. Opp. at 18-19. In support of his argument, Reyes

cites his opening brief in the Ninth Circuit, where his attorney

noted that the state appellate record did not include Exhibits 5,

6, and 7, which constituted the evidence relative to Reyes’s

prior convictions. Reyes then argues that an evidentiary hearing

may be unnecessary because the evidence may have already

been developed, and that said evidence could be found in

portions of the record never submitted to the district court by the

state when it lodged records of the state court proceedings.

Opp. at 19-20.

Reyes’s assertion, that the district court will not necessarily

have to hold an evidentiary hearing, is incorrect for two reasons.

First, his opening brief also noted that his attorney had

contacted the clerk in the Exhibits Section of the San

Bernardino County Superior Court, who informed counsel that

10

all the exhibits in the case were destroved in December 2000.

Reyes’s Ninth Cir. Opening Brief, available at 2001 WL

34355185, at 22 n. 5. Consequently, the exhibits were not

available for the State to lodge with the district court, nor are

they available now. Second, the Exhibits List from the state

court proceedings reveals the referenced exhibits were certified

copies of Reyes’s prior convictions.” Certified copies of prior

convictions do not contain any facts concerning the

circumstances of the offenses; they mercly reflect the

conviction, the statute violated, and the dates the defendant

served in prison.

Thus, there is simply no way that the district court will be

able to develop the record regarding the circumstances

underlying Reyes’s prior strike without holding an evidentiary

hearing. As pertinent here, 28 U.S.C. § 2254(e)(2) precludes a

habeas court from holding an evidentiary hearing where the

applicant failed to develop the factual basis for his claim in state

court, unless the applrcant can show that the factual basis could

not have been previously discovered by exercising due

diligence. Here, the Ninth Circuit has fashioned a remedy that

fails to adhere to the limitations imposed by § 2254(e)(2).

Accordingly, a writ of certiorar: should be granted.

2. Reyes argues the petition for writ of certiorari should be

denied as to the second question presented in this case because

nothing about the Ninth Circuit’s decision to remand the matter

for further factual development is barred by precedent. Opp. at

20. In support of his argument, Reyes claims the Ninth Circuit

2. The exhibits were certified copies of Reyes’s prior convictions,

which are commonly known in California as Penal Code § 969b packets.

California Penal Code § 969b provides, in relevant part, that if certified by

the official custodian, copies of records of any state penitentiary,

reformatory, county jail city jail, or federal penitentiary in which the

defendant has been imprisoned, may be introduced for the purpose of

establishing prima facie evidence that the defendant has been convicted of

an act punishable by imprisonment and has served a term therefor in a penal

institution

1]

has merely required the district court to look into the questions

of: (1) whether the evidence concerning the circumstances of

Reyes’s prior conviction was developed in state court; and (2)

whether Reyes met an exception to 28 U.S.C. § 2254(e)(2)’s

limitations on evidentiary hearing in the habeas court.

Reyes is incorrect. There is no precedent for a habeas court

to engage in this sort of expedition. No decision of this Court

has remotely suggested that federal habeas courts can look

beyond the state’s definition of a crime, to the circumstances of

its commission, to evaluate the seriousness of prior convictions,

when the applicant failed to develop the facts in state court.

Contrary to the Ninth Circuit’s suggestion, nothing in Solem so

held. More to the point, § 2254(e)(2) expressly forbids it.

Thus, the Ninth Circuit’s decision in this case conflicts with this

Court’s precedent, as well as the controlling statute.

Accordingly, a writ of certiorari should be granted.