Petition for Writ of Certiorari — Ayers v. Clark (No. 06-287)

Supreme Court, U.S.

uP FILED

@ 06-287 AUG 25 2006

N°: OFFIGE OF THE CLERK

IN THE SUPREME COURT OF THE UNITED STATES

ROBERT L. AYERS, Jr., Acting Warden, San Quentin State

Prison, California, Petitioner,

Vv.

WILLIAM CLARK, Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

BILL LOCKYER

Attorney General of the State of California

MARY JO GRAVES

Chief Assistant Attorney General

PAMELA C. HAMANAKA

Senior Assistant Attorney Genera

DONALD E. DE NICOLA

Deputy State Solicitor Generall

KEITH H. BORJON

Supervising Deputy Attorney General

SCOTT A. TARYLE

Deputy Attorney General-

State Bar No. 156158

300 South Spring Street, Suite 1702

Los Angeles, CA 90013

Telephone: (213) 897-2363

Fax: (213) 897-6496

Email: DocketingLAAWT @doj.ca.gov

Counsel for Petitioner

QUESTION PRESENTED

FORMER CAPITAL CASE

In Rogers v. Tennessee, 532 U.S. 451, 461-62 (2001), this

Court held that a proper due-process analysis of a state court’s

new interpretation of the scope of a criminal statute must

accommodate the state courts’ legitimate need to clarify,

reevaluate, and refine judicial doctrines to address new facts or

to conform to common sense. Here, the Ninth Circuit Court of

Appeals held that the California Supreme Court’s interpretation

of a judicially-created exception to the state’s death-penalty

provision for certain felony-murders—an exception applicable

where the felony is merely “incidental” to the killing—was

“unforeseeable” and violated respondent’s nght to due process

in that it did not give respondent fair notice that setting fire to

the victim’s house in order to drive him outside to shoot him

was a capital offense.

- The question presented is:

Did the Ninth Circuit fail to afford the California Supreme

Court the latitude required by Rogers?

il

TABLE OF CONTENTS

Page

PETITION FOR WRIT OF CERTIORARI l

OPINIONS BELOW l

JURISDICTION 2

RELEVANT STATUTORY PROVISION 2

STATEMENT OF THE CASE 2

REASONS FOR GRANTING THE PETITION +

THE NINTH CIRCUIT’S OPINION

DISREGARDS THIS COURT'S

DIRECTIVE IN ROGERS V. TENNESSEE

TO ACCOMMODATE THE STATE

COURT’S PROPER JUDICIAL FUNCTION

OF CLARIFYING AND REFINING LEGAL

DOCTRINES AS NEW FACTS AND

CIRCUMSTANCES PRESENT

THEMSELVES 4

A. The Constitution Limits A State Court’s

Interpretation Of The Scope Of A State Criminal

Statute Only In Extreme Circumstances 5

B. Respondent’s Liability For The Death Penalty

Was Foreseeable Notwithstanding California's

“Green Rule” 6

C. The State Court’s Ruling That Respondent Was

Liable For The Arson-Murder “Special

TABLE OF CONTENTS (continued)

Page

Circumstance” Was Foreseeable And Defensible

Under Rogers v. Tennessee 10

D. The Ninth Circuit Failed To Give Proper

Deference, Under Rogers, To The State

Supreme Court's Function In Developing And

Clarifying The Law, Especially In Light Of The

Novelty Of The Green Rule Itself 11

CONCLUSION 14

TABLE OF AUTHORITIES

Cases

Ario v. Superior Court,

124 Cal. App. 3d 285 (1981)

Bouie v. City of Columbia,

378 U.S. 347 (1964)

Bradford v. Richey,

126 S. Ct. 602,

163 L. Ed. 2d 407 (2005)

Carlos v. Superior Court,

35 Cal. 3d 131 (1983)

Clark v. Brown,

450 F.3d 898 (9th Cir. 2006)

People v. Clark,

50 Cal. 3d 583,

268 Cal. Rptr. 399 (1990)

People v. Green,

27 Cal. 3d 1 (1980)

People v. Hernandez,

47 Cal. 3d 315,

253 Cal. Rptr. 199 (1988)

People v. Kimble,

44 Cal. 3d 480,

244 Cal. Rptr. 148 (1988)

iv

Page

12

a4

1,3, 4, 11,12

1,3, 11

TABLE OF AUTHORITIES (continued)

People v. Murtishaw,

29 Cal. 3d 733,

175 Cal. Retr. 738 (1981)

People v. Robertson,

33 Cal. 3d 21,

188 Cal. Rptr. 77 (1982)

People v. Sanders,

51 Cal. 3d 471,

273 Cal. Rptr. 537 (1990)

People v. Sheppard,

192 Cal. Rptr. 427 (1983)

People v. Smith,

186 Cal. Rptr. 650 (1982)

People v. Smith,

718 P.2d 66,

226 Cal. Rptr. 79 (1986)

People v. Thompson,

27 Cal. 3d 303,

165 Cal. Rptr. 289 (1980)

People v. Williams,

44 Cal. 3d 883,

245 Cal. Rptr. 336 (1988)

Rogers v. Tennessee,

532 U.S. 451 (2001)

Page

10

10

7,8

1, 4-6, 11-13

TABLE OF AUTHORITIES (continued)

United States v. Lanier,

520 U.S. 259 (1997)

Webster v. Woodford,

369 F.3d 1062 (9th Cir. 2004)

Statutes

28 U.S.C. § 1254(1)

Cal. Penal Code § 189

Cal. Penal Code § 190.2(a)(17)

Cal. Penal Code § 190.2(c)(3)

Page

2

11

2, 3, 6, 7, 11

7

IN THE SUPk.... {E COURT OF THE UNITED STATES

No.

ROBERT L. AYERS, Jr., Acting Warden, San Quentin State

Prison, California, Petitioner,

o Vv.

WILLIAM CLARK, Respondent.

PETITION FOR WRIT OF CERTIORARI

Robert Ayers, Acting Warden of San Quentin State Prison

in California, respectfully petitions for a writ of certiorari to

review the judgment of the United States Court of Appeals for

the Ninth Circuit.

OPINIONS BELOW

The amended opinion of the Court of Appeals, filed on

May 30, 2006, appears as Appendix A and is reported as Clark

v. Brown, 450 F.3d 898 (9th Cir. 2006). The original opinion

filed on February 17, 2006, appears as Appendix B and was

reported at 442 F.3d 708. The California Supreme Court’s

opinion on respondent Clark’s direct appeal appears as

Appendix C and is reported as People v. Clark, 50 Cal. 3d 583,

268 Cal. Rptr. 399 (1990).

JURISDICTION

The Court of Appeals issued its amended opinion and

denied the State’s petition for rehearing en banc on May 30,

2006. Appendix A. This petition for writ of certioran follows

within 90 days. The State invokes this Court’s jurisdiction

under 28 U.S.C. § 1254(1).

RELEVANT STATUTORY PROVISION

California Penal Code section 190.2(a)(17) provides for a

“special circumstance” in murder cases, qualifying the

defendant for sentences of life in prison without possibility of

parole or death, where the jury finds:

The murder was committed while the defendant was

engaged in or was an accomplice in the commission of, or

the immediate flight after committing or attempting to

commit the foliowing felonies: . . .

(viii) Arson in violation of Section 447.

STATEMENT OF THE CASE

Respondent William Clark was obsessed with his therapist,

Ava Gawronski. After he attempted to rape her during a therapy

session, she discontinued the therapy. Clark then devised a

scheme to cause Ava to feel “loss” by murdering her husband,

David. Clark set fire to David and Ava's house, killing David,

severely burning and disfiguring Ava, and endangering their

infant daughter. According to Clark’s statements to police and

his trial testimony, his intent in setting the fire was not to burn

David or the other family members to death, but instead to drive

the entire family out of the house so that he then could shoot

and kill David in front of his wife and child.

A jury convicted Clark of the first-degree murder of David;

the second-degree attempted murders of Ava and her daughter;

and arson. The jury also found a felony-murder “special

circumstance” (Cal. Penal Code § 190.2(a)(17)) based on the

arson. Clark was sentenced to death.

On direct appeal to the California Supreme Court, Clark

claimed that the trial court erred by refusing to instruct the jury

on the so-called “Green rule,” a recently-created judicial

exception to the felony-murder special circumstance where the

felony underlying the murder is “merely incidental” and lacks

an “independent purpose.” See People v. Green, 27 Cal. 3d 1,

61 (1980). In affirming the judgment, the California Supreme

Court held that the omission of a Green instruction was error

under state law. But the court found the error harmless in light

of overwhelming evidence that respondent’s purpose for setting

the fire was to drive each of the family members outside, rather

than to burn David to death. That purpose, the court explained,

“would not invoke the Green rule since defendant had

independent, albeit concurrent, goals.” Appendix C, p. 71;

People v. Clark, 50 Cal. 3d at 608-09, 268 Cal. Rptr. 399.

Clark challenged that ruling in federal court on habeas

corpus. The district court denied the habeas petition. Ina

published opinion, however, the Ninth Circuit reversed and

remanded to the district court with instructions to grant partial

habeas corpus relief, invalidating the special circumstance and

hence the death sentence, but allowing Clark’s convictions for

first-degree murder and all other counts to stand. Appendix A;

Clark v. Brown, 450 F.3d 898 (9th Cir. 2006).

The Ninth Circuit held that the trial court's failure to give a

Green instruction violated Clark’s due-process right to

instructions on his defense theory that the arson was merely

incidental to the murder. Relying on Bouie v. City of Columbia,

378 U.S. 347 (1964), the Ninth Circuit held that the California

Supreme Court’s harmless-error ruling violated due process by

retroactively changing the state court’s own interpretation of the

Green rule. Under its own interpretation of California law at

the time of the arson-murder, and contrary to the California

Supreme Court’s opinion, the Ninth Circuit held that

respondent’s intent to burn the house in order to drive the

occupants outside was not an “independent purpose” under

Green. As an explanation, the Ninth Circuit stated that the

murder was not intended to advance or facilitate the arson and

that Ciark’s purpose for driving the family outside was to kill

David. Appendix A, pp. 17-18; Clark v. Brown, 450 F.3d at

910-11.

REASONS FOR GRANTING THE PETITION

THE NINTH CIRCUIT’S OPINION

DISREGARDS THIS COURT'S DIRECTIVE IN

ROGERS V. TENNESSEE TO

ACCOMMODATE THE STATE COURT’S

PROPER JUDICIAL FUNCTION OF

CLARIFYING AND REFINING LEGAL

DOCTRINES AS NEW FACTS AND

CIRCUMSTANCES PRESENT THEMSELVES

Certiorari should be granted because the Ninth Circuit

failed to follow this Court’s decision in Rogers v. Tennessee,

532 U.S. 451 (2001). Rather than afford the state court greater

latitude in light of the developing nature of the state-law “Green

rule,”the Ninth Circuit disregarded this Court’s directive in

Rogers to accommodate state courts’ legitimate need to develop

and refine their own judicial doctrines. Picking and choosing

among state court authorities, the Ninth Circuit instead adopted

its own competing and static interpretation of California law at

the time of the crime, allowing no room for “fashioning and

refining the law . . . in light of reason and experience.” Rogers,

532 US. at 462.

A. The Constitution Limits A State Court’s

Interpretation Of The Scope Of A State Criminal

Statute Only In Extreme Circumstances

This Court has recognized that a state court’s construction

ofacriminal statute, applied retroactively to subject a person to

criminal liability for past conduct, sometimes might violate “due

process of law in the sense of fair warning that his contemplated

conduct constitutes a crime.” Bouie v. City of Columbia, 378

U.S. 347, 354-55 (1964). A due process violation occurs,

however, only when the “state court's construction ofa criminal

statute was so unforeseeable as to deprive the defendant of the

fair warning to which the Constitution entitles him." /d. at 354,

italics added.

This Court has historically demanded a very high degree of

“unforeseeability” as a prerequisite for finding this kind of due-

process error: The judicial interpretation must be “unexpected

and indefensible by reference to the law which had been

expressed prior to the conduct in issue.” Bouie, 378 U.S. at

353; accord Rogers, 532 U.S. at 457. Moreover, the due

process nght to notice requires only “reasonable warming” that

one's conduct is proscribed; it does not require “fundar~ ~atally

similar cases.” Bradford v. Richey, 126 S. Ct. 602, 604, 163 L.

Ed. 2d 407 (2005) (citing United States v. Lanier, 520 U.S. 259,

269-70, (1997)). And, as this Court warned in Rogers v.

Tennessee, overly stringent applications of the due-process test

would have an unwarranted chilling effect on the courts’

traditional and legitimate function of developing and refining

judicial doctrines on an ongoing basis.

In the context of common law doctrines . . ., there often

arises a need to clarify or even to reevaluate prior opinions

as new circumstances and fact patterns present themselves.

532 U.S. at 461, italics added (declining to import ex post facto

principles into the Bouie doctrine).

The “unexpected and indefensible” interpretation standard

therefore strikes a balance between the due process interest in

preventing “vindictive or arbitrary judicial lawmaking” and the

courts’ need to “reevaluat[e] and refin[e]: judicial doctrines “as

may be necessary to bring the common law into conformity with

logic and coramon sense.” Rogers, 532 U.S. at 461-62.

[T]he fact of the matter is that common law courts then, as

now, were deciding cases, and in doing so were fashioning

and refining the law as it then existed in light of reason and

experience. Due process clearly did not prohibit this

process of judicial evolution at the time of the framing, and

it does not do so tuday.

Id. at 462.

Under the due-process standard as informed by Rogers, the

California Supreme Court’s decision to uphold the “special

circumstances” verdict in respondent’s case notwithstanding the

state-law “Green rule” was proper and should not have been

second-guessed by the Ninth Circuit.

B. Respondent’s Liability For The Death Penalty

Was Foreseeable Notwithstanding California's

“Green Rule”

The history of the “Green rule” or “Green exception”

supports the California Supreme Court’s view that the rule

provided no protection from the death penalty to a murderer

who killed and intended to kill in an arson planned as a way of

driving the victim outdoors so that he could be shot in the

presence of his wife and child. First, as the Ninth Circuit

acknowledged, Appendix A, p. 20; Clark v. Brown, 450 F.3d at

912, the straightforward language of California’s 1978 death-

penalty statute, would plainly apply to Clark’s murder of David

by setting fire to his house. Thus, California Penal Code section

190.2(a)(17) provides for a death-penaity-qualifying “special

circumstance” for murders committed “while the defendant was

engaged in” certain enumerated felonies including arson.

In 1980, two years before respondent’s crime, the California

Supreme Court decided Green, a capital case with very peculiar

facts distinguishable from those in respondent’s case. Green

murdered his wife and, as an afterthought, removed and

destroyed her clothing and jewelry solely to prevent

identification. 27 Cal.3d at 51. By taking those items, Green

technically committed a robbery that served as the basis for the

jury’s finding of a felony-murder “special circumstance”

qualifying the defendant for the death penalty under former

California Penal Code section 190.2(¢\(3) (now Cal. Penal Code

§ 190.2(a)(17)). The California Supreme Court reversed the

special-circumstance verdict, holding that the murder was not

committed during a robbery within the meaning of the statute.

id. at 61-62. The Green court explained that the purpose of

section 190.2, to provide a rational and non-arbitrary basis for

distinguishing capital from non-capital murders, would not be

achieved if the statute were to apply to technical robberies

“when the defendant's intent is not to steal but to kill and the

robbery is merely incidental to the murder . . . because its sole

object is to facilitate or conceal the primary crime.” /d. at 61,

italics added.

A secoiud Green-type case also involved unusual facts

different from those in this case. In People v. Thompson, 27

Cal. 3d 303, 165 Cal. Rptr. 289 (1980), decided two months

after Green, a hired assassin took the murder victim’s car keys

to make the hired killing look like it resulted from a

commonplace burglary and robbery. 27 Cal.3d at 310-11.

Citing Green, the state supreme court struck felony-murder

“special circumstance” findings based on robbery and burglary,

finding that the theft of the car keys was “merely incidental to

the murder.” /d. at 324.

Both Green and Thompson presented extreme cases with

unusual facts. Only by a technicality did the crimes in either

case constitute robbery, and thus the underlying robberies were

insufficient to support felony-murder death-penalty liability.

Neither case definitively tested the boundaries of what is

“merely incidental” to a murder. Most important, in Green and

Thompson there was no evidence that the defendant harbored

multiple, concurrent objectives in committing felony-murder.

Neither of the defendants had any genuine intent to commit

robbery at all; their “sole objective” was murder. Green, 27

Cal. 3d at 61; Thompson, 27 Cal. 3d at 322.

The issue of concurrent objectives was broached in the third

California Supreme Court case addressing the “Green rule,”

People v. Murtishaw, 29 Cal. 3d 733, 175 Cal. Rptr. 738 (1981),

a capital case decided before Clark committed his crimes.

Murtishaw held that there was sufficient evidence that a murder

was “committed in the perpetration of, or attempt to perpetrate”

an enumerated felony for purposes of California Penal Code

section 189, defining first-degree murder, where the perpetrator

harbored “concurrent objectives" in committing the underlying

felony and the murder. 29 Cal. 3d at 752n.13. Murtishaw

expressly distinguished Green, noting there was evidence in

Murtishaw that “the theft here was not ancillary to the murder,

but... aconcurrent objective,” and that the defendant had both -

“an independent intent to kill” and an intent to steal. Jd.

Although the precise issue in Murtishaw was the scope of first

degree felony-murder, not the felony-murder “special

circumstance” addressed in Green, it was certainly foreseeable

that California courts would import the "concurrent objectives"

ruling of Murtishaw into the interpretation of the special

circumstance statute. See Webster v. Woodford, 369 F.3d 1062,

1074-75 (9th Cir. 2004) (it was foreseeable, for Bouie purposes,

that state court's interpretation of lying-in-wait for purposes of

first degree murder statute would be imported into lying-in-wait

special circumstance statute). Indeed, the very fact that

Murtishaw found it necessary to discuss and distinguish Green

sent a strong signal from the state supreme court that the same

"concurrent objective” test would apply in both contexts. See,

e.g., People v. Smith, 186 Cal. Rptr. 650, 660-61 (1982),

1. The California Supreme Court granted hearing and remanded

Smith to the California Court of Appeal for reconsideration in light of

Carlos v. Superior Court, 35 Cal. 3d 131 (1983), which involved a different

issue regarding intent to kill in felony-murder special circumstance cases.

People v. Smith, 718 P.2d 66, 226 Cal. Rptr. 79 (1986), on remand, 187 Cal.

App. 3d 666, 231 Cal. Rrtr. 897 (1986). Petitioner cites the original,

(citing Murtishaw as authority that “concurrent

motivations” —killing victim both for personal revenge and to

facilitate robbery—satisfied the Green rule with respect to the

felony-murder special circumstance); People v. Williams, 44

Cal. 3d 883, 927-29, 245 Cal. Rptr. 336 (1988) (citing

Murtishaw as authority regarding Green rule in context of

felony-murder special circumstance); see also People v.

Hernandez, 47 Cal. 3d 315, 343-44, 348, 253 Cal. Rptr. 199

(1988) (discussing Green in context of first degree felony-

murder statute, rather than felony-murder special circumstance).

In the years following Clark’s crime in 1982, the Green rule

continued to evolve as new fact patterns presented themselves

to the courts. California courts have repeatedly opined or

implied that Green was an anomaly that had created a rare

exception to—not an element of—the felony-murder “special

circumstance” rule. See People v. Robertson, 33 Cal. 3d 21, 52,

188 Cal. Rptr. 77 (1982) (“‘incidental robbery theory’ of

Green” is not “a general principle of law ‘closely and openly

connected with the facts before the court’” to support a sua

sponte duty to instruct) ; People v. Kimble, 44 Cal. 3d 480, 502-

03, 244 Cal. Rptr. 148 (1988) (Green theory not an “element”

of a special circumstance).

Moreover, multiple California decisions found the Green

exception to be inapplicable where the defendant harbored

“concurrent objectives” in committing felony-murder. See

Smith, 186 Cal. Rptr. at 660-61 (no Green error where

defendant killed to eliminate witness to robbery “or at least . .

. acted with concurrent motivations”); Kimble, 44 Cal. 3d 480,

502-03, 244 Cal. Rptr. 148 (1988) (evidence clearly showed

"concurrent intent"); Williams, 44 Cal. 3d 883, 927-29

(kidnaping-murder special circumstance satisfied Green where

superseded Smith opinion not as authority for the legal propositions therein,

but instead to demonstrate by example that California jurists believed the

Murtishaw “concurrent goals” interpretation of the Green rule applied to

special circumstance cases.

10

defendant kidnaped victim both to rape and murder her, as

kidnaping had "purpose other than and in addition to killing

her"); see also\People v. Sanders, 51 Cal. 3d 471, 519-20, 273

Cal. Rptr. 537 (1990) (refusing to extend Green to witness-

killing special circumstance; special circumstance applicable

even if defendant also harbored a second purpose for killing the

witness-victim).”

C. The State Court’s Ruling That Respondent Was

Liable For The Arson-Murder “Special

Circumstance” Was Foreseeable And Defensible

Under Rogers v. Tennessee

The history of the Green exception, outlined above, thus

supported the California Supreme Court’s ruling that the

evidence overwhelmingly showed the arson-murder “special

circumstance.” According to his own statements to police and

his trial testimony, respondent Clark had concurrent goals in

setting fire to the victims’ house. Clark’s primary and

immediate goal in setting the blaze, according to his own

testimony, was not to cause the victims to die in the fire. He

wanted to drive David out of the house so that he could shoot

him to death. He a/so wanted to drive Ava and her infant

daughter out of the house—for the stated purpose of shooting

the husband in front of Ava and thus to intensify her “emotional

2. The unsettled status of the Green rule’s application to

“concurrent intent” cases is further exemplified by the California Court of

Appeal’s decision in People v. Sheppard, 192 Cal. Rptr. 427, 431-32 (1983),

review denied but ordered depublished by California Supreme Court.

Declining to “rush pell mell to expand Green and Thompson beyond the

facts there stated,” Sheppard found the kidnaping of the victim to a remote

location in order to kill was not “merely incidental” to the murder, but rather

was ““‘the first thing to”” the murder. The court noted the kidnaping had

been carefully planned and calculated to enable the defendants to kill the

victim without interference or detection. /d. Because Sheppard was

depublished, petitioner does not cite it as legal authority, but rather as

exemplary evidence of the unsettled state of the extent of the Green

exception close to the time of Clark's crime.

11

pain.” See Appendix C, pp. 55, 69 ; People v. Clark, 50 Cal. 3d

at 595, 607.2 Like the defendant in Murtishaw, and unlike the

defendants in Green and Thompson, Clark planned and intended

to commit both murder and an underlying felony (arson) the

purpose of which, according to respondent himself, was not

solely to kill. In affirming Clark's conviction and sentence on

direct appeal, the California Supreme Court found—in a ruling

that was foreseeable and defensible in light of the Green rule’s

history—that such an intent “would not invoke the Green rule

since defendant had independent, albeit concurrent, goals.”

People v. Clark, 50 Cal. 3d at 608-09.

D. The Ninth Circuit Failed To Give Proper

Deference, Under Rogers, To The State Supreme

Court's Function In Developing And Clarifying

The Law, Especially In Light Of The Novelty Of

The Green Rule Itself

_ As shown above, California’s Green rule was a recent and

novel judicial construct at the time of respondent’s January

1982 crimes. Such issues as the meaning of “independent

purpose,” the role of “concurrent goals,” and the applicability of

parallel interpretations of the first degree felony murder statute

(Cal. Penal Code § 189) and felony-murder special

circumstance statute (Cal. Penal Code § 190.2(a)(17)) were

matters of ongoing judicial "clarif[ication]", "reevalua-t[ion]

and refinfemeni]." Rogers, 532 U.S. at 461-62. The Ninth

Circuit failed to accord the California Supreme Court latitude,

under Rogers, to carry out those judicial functions. Indeed, the

3. Although this was Clark's professed goa! up to and including the

time he set the first of two fires in the house, commencing the crime of

arson, there was evidence he later realized, « « nds before setting the second

fire, that the family was not going to be at..- «2 escape the burning house

alive. Appendix A, pp. 11-12; Clark v. Brown, 450 F.3d at 906-07;

Appendix C, pp. 69-70; People v. Clark, 50 Cal. 3d at 607-08. This likely

explains the jury's verdicts of two counts of second degree attempted

murder.

12

Ninth Circuit opinion barely mentions Rogers, relegating this

Court’s decision in that case to a mere “see also” citation and a

nested citation to Bouie in the midst of the decision below.

Appendix A, pp. 18, 25; Clark v. Brown, 450 F.3d at 911, 916.

The Ninth Circuit readily acknowledged that the language of

the special circumstance statute itself—absent the judicial gloss

of the “Green rule”—gave respondent ample warning that his

conduct constituted capital-eligible murder. It strains credulity

that respondent could have believed otherwise, or that he

somehow had relied on the new and anomalous Green rule

when he committed his horrific crimes.

But, instead of accommodating the evolving nature of

California jurisprudence regarding the scope of the rare

“technical felony” exception to the felony-murder special

circumstance, the Ninth Circuit’s opinion imposed its own, rigid

and formulaic interpretation of California law, and anomalously

faulted the state supreme court for straying from that

formulation. Rather than assess whether the application of the

special circumstance to Clark's crime was “[]defensible” under

state law at the time of the crime, see Rogers, 532 U.S. at 457,

462; Bouie, 378 U.S. at 353, the Ninth Circuit focused on

whether its own interpretation of California law was more

defensible or foreseeable than that adopted by the state supreme

court on Clark's appeal.”

If anything, the state court was entitled to more latitude in

applying the Green exception in light of the novelty of the rule

itself. Here, the allegedly “unforeseeable” state-court ruling

was a California Supreme Court opinion interpreting a “special

4. One telling indication of this shift of focus is the fact that the

opinion amplifies the importance of a lower state appellate court decision,

Ario v. Superior Court, 124 Cal. App. 3d 285, 287 (1981), while curiously

downplaying the significance of Murtishaw, a California Supreme Court

case expressly distinguishing Green. Appendix A, pp. 21-23; Clark v.

Brown, 442 F.3d at 723-24. Hence, the opinion appears to pick and choose

among state court authorities in order to demonstrate that its own

interpretation of California law was foreseeable and defensible.

13

circumstance”’ statute that had been enacted only four years

before Clark’s crime. Moreover, the judicially-created “Green

exception” to that statute had only been announced less than

two years before the crime. At the time of the arson-murder, the

California Supreme Court had not yet squarely decided an issue

particularly important to Clark's case: whether Green applied

where a defendant harbored multiple, concurrent objectives for

committing felony-murder. Logically, a state court grappling

with a newly-created and unsettled area of state law requires

even greater leeway to clarify, refine, and modify state law.

The Ninth Circuit’s opinion has taken the Bouie/Rogers

doctrine beyond its original rationale—to prevent “vindictive or

arbitrary judicial lawmaking,” Rogers, 532 U.S. at 460—and

has transformed it into a legal trap to overturn state-court

decisions on state-law questions. This Court should grant

certiorari to ensure that the lower federal courts heed this

Court’s directives in Rogers to accommodate the state courts’

function in developing evolving principles of law.

14

CONCLUSION

The petition for writ of certiorari should be granted.

60162109.wpd

LA2006502933

Dated: August 25, 2006

Respectfully submitted,

BILL LOCKYER

Attorney General of the S*ate of California

MARY JO GRAVES

Chief Assistant Attorney General

PAMELA C. HAMANAKA

Senior Assistant Attorney General

DONALD E. DE NICOLA

Deputy State Solicitor General

KEITH H. BORJON

Supervising Deputy Attorney General

Beat Jug

SCOTT A. TARYLE

Deputy Attorney General

Counsel of Record

Counsel for Petitioner