Opposition Brief — Belleque v. Kephart, 127 S. Ct. 1880 (2007) (No. 06-1015)

"Supreme Court, U.S.

FILED

MAR 7 ~ 2¢f?

OFFICE OF THE CLERK .

No. 06-1015

In the Supreme Court

of the United States

BRIAN BELLEQUE, Superintendent, Oregon

State Penitentiary,

Petitioner,

Vv.

PHILLIP L. KEPHART,

Respondent.

Petition for Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

PETITIONER’S REPLY TO BRIEF IN OPPOSITION

HARDY MYERS

Attorney General of Oregon

PETER SHEPHERD

Deputy Attorney General

*MARY H. WILLIAMS

Solicitor General

JANET A. METCALF

Assistant Attorney General

1162 Court Street

Salem, Oregon 97301-4096

Phone: (503) 378-4402

Counsel for Petitioner

*Counsel of Record

WiLSON-EPES PRINTING Co., INC. — (202) 789-0096 — WASHINGTON, D.C. 20002

TABLE OF CONTENTS

Page

A. Respondent does not respond to many of the points

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B. Respondent’s arguments about the showing required for

an evidentiary hearing and about what constitutes

diligence are case-specific and largely irrelevant. ......... 3

C. Equitable tolling is not available to excuse the untimely

filing of section 2254 habeas petition. ...............::0:0000+ 6

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TABLE OF AUTHORITIES

Page

Cases Cited

Baldwin Co. Welcome Center v. Brown,

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Baidwin v. Reese,

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Calderon v. United States Dist. Court (Beeler),

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- Calderon v. United States Dist. Court (Kelly),

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Griffen v. Johnson,

I FP I ss sos ccndnnevnesectecervecueeveaceseasvecesenseens 3

Howell v. Mahoney,

2006 US Dist LEXIS 92856 (D. Mont. 2006) .................... 4

Kentucky v. Stincer,

sa can dcepsanpesevebbnvesedessevenchdecovereeeee 6

Lawrence v. Florida,

TE Bi oss sentedeseceverdeesvvseveveversvesteeeooushsecaeveres 8

Moreno v. Harrison,

2006 US Dist LEXIS 62635 (N.D. Cal. 2006) ................... 4

Pace v. DiGuglielmo,

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Roberts v. Galen of Va., Inc.

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Roy v. Lampert,

455 F.3d 945,

amended 465 F.3d 964 (9" Cir. 2006) .......c.c0-000+ 1, 4, 5,6

Sprietsma v. Mercury Marine,

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United States v. Beggerly,

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United States v. Brockamp,

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Vance v. Terrazas,

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Constitutional and Statutory Provisions

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REPLY BRIEF

A. Respondent does not respond to many of the points

made in the petition.

What is perhaps first striking about the brief in opposition

is that respondent ignores and does not take issue with many

of the central points made in the petition for a writ of certio-

rari. That is, what is first notable is not what the brief in oppo-

sition says, but what it fails to address.

The petition notes that the Ninth Circuit Court of Appeals

treated respondent Kephart as though he were proceeding pro

se, stating that it was “highly relevant” that he was “proceed-

ing pro se,” and on that basis “constru[ing] [his] allegations

regarding diligence liberally.” Roy v. Lampert, 455 F.3d 945,

amended 465 F.3d 964, 970 (9" Cir. 2006).' The Ninth Cir-

cuit did so even though Kephart had been represented by

counsel for about two and a half years when the district

court’s judgment was entered, and even though counsel was

allowed to and did submit additional evidentiary materials in

support of Kephart’s cquitable tolling claim. (Pet. Cert. 11).

The State’s petition contends that treating Kephart as though

he were pro se in this circumstance is unprecedented, con-

flicts with the approach taken by this Court in Baldwin Co.

Welcome Center v. Brown, 466 U.S. 147, 150 n. 4 (1984), and

could result in significant and adverse impacts on habeas cor-

pus practice in the circuit because Kephart’s situation — ini-

tially filing pro se and then having counsel appointed — is

' As the petition mentions, the Ninth Circuit on its own

motion consolidated the appeal in this case with the appeal in

Roy v. Lampert. See Roy, 465 F.3d at 967. The State’s petition

for rehearing and suggestion for rehearing en banc was lim-

ited to Kephart’s case only, as is the State’s petition for a writ

of certiorari.

2

such a common one. Respondent offers no defense of this

Ninth Circuit holding. He never mentions it in the brief in op-

position.

The Ninth Circuit also held, based on the most conclusory

of allegations, that Kephart was entitled to an evidentiary

hearing on his claim of equitable tolling. The petition asserts

that the Ninth Circuit’s approach, rewarding meager and un-

specific allegations with an evidentiary hearing, is inconsis-

tent with the more-demanding standards employed by the

Second, Third, Seventh, and Eleventh Circuits. (Pet. Cert. 17-

19). Respondent does not appear to disagree that there is a

conflict. This claim too is not addressed in his brief in opposi-

tion.

Finally, the petition argues that the Ninth Circuit so re-

duced the diligence component of an equitable tolling claim

as to render that aspect of a claim virtually meaningless. (Pet.

Cert. 19-20). The insufficient showing approved by the Ninth

Circuit conflicts with the more stringent approach taken by

the Fifth, Tenth, and Eleventh Circuits, which in turn are not

consistent with each other. (Pet. Cert. 21-24). The State’s pe-

tition identifies and describes the three disparate courts of ap-

peals’ approaches to claims of equitable tolling in federal ha-

beas corpus that are based on allegations of inadequacies in

prison law libraries and on lack of access to legal materials, as

this case is. (Pet. Cert. 23-24). Respondent does not reply to

or dispute that claim either. He does not contend that there is

no conflict.

Thus, the circuit conflicts highlighted in the petition for a

writ of certiorari stand unaddressed and unrebutted by re-

spondent. And respondent offers no defense of the Ninth Cir-

cuit’s treatment of a long-counscled habeas petitioner as if he

were pro Se.

3

B. Respondent’s arguments about the showing required

for an evidentiary hearing and about what constitutes

diligence are case-specific and largely irrelevant.

As noted above, the petition asserts that, assuming equita-

ble tolling is available at all, the Ninth Circuit set the bar for

obtaining an evidentiary hearing on such a claim far too low

and that the court diluted the diligence component of an equi-

table tolling claim. The petition also argues that the Ninth

Circuit’s approach to these issues conflicts with the analytical

approach used by other circuit courts of appeals. (Pet. Cert.

16-24). Rather than disagreeing that there is a circuit split,

respondent offers much more case-specific and myopic con-

tentions.

Respondent first complains that, “[i]n the courts below,

the state did not cite a single case of a similarly situated Ore-

gon inmate,” transferred to an out-of-state privately-run

prison facility and then returned to an Oregon institution,

“who filed [his federal habeas corpus petition] within the stat-

ute of limitations.” (Opp. Br. 4). Why that should matter when

the State’s objections are to the Ninth Circuit’s legal analysis

is unclear. Respondent also contends that “no Oregon prisoner

sent to Arizona filed a timely, non-defaulted federal petition.”

(Opp. Br. 4). But the only evidence he offers in support of

that assertion is a citation to a district court case involving an

Oregon inmate, sent to Arizona, who filed his federal habeas

petition on time, but whose claims were procedurally de-

faulted. (Opp. Br. 4, citing Griffen v. Johnson, No. 98-888 (D.

Or. 2000)). ;

Respondent next contends that, if this case were truly wor-

thy of certiorari, the State would have sought the issuance of a

writ in Roy’s case too. (Opp. Br. 4-5). Seeking the issuance of

a writ in Kephart’s case only is all that is needed to put the

legal issues the State wishes to advance before this Court.

however. There is no need to add Roy’s case to the mix. And

4

the “strategic selection” of Kephart’s case as the vehicle to

use to raise t "oad-based legal issues the State is interested

in is not partic__urly mysterious. Without conceding that Roy

is in any way entitled to relief in habeas corpus, and without

agreeing with the Ninth Circuit’s holding that he is entitled to

an evidentiary hearing on his equitable tolling claim, never-

theless his equitable tolling claim appears to be somewhat

stronger than Kephart’s. See Roy, 465 F.3d at 970-71 (Roy

complained to the State corrections ombudsman about the le-

gal resources available at the Arizona facility; he met with the

ombudsman in Arizona to complain about the law library; and

he filed a federal lawsuit while in Arizona challenging the ac-

ceptability of the law library); Howell v. Mahoney, 2006 US

Dist LEXIS 92856, *6-7 (D. Mont. 2006) (citing those aspects

of Roy as suggesting diligence); Moreno vy. Harrison, 2006

US Dist LEXIS 62635, *23 (N.D. Cal. 2006) (same). And the

facts can make a difference even when it is legal issues that

are at the forefront. That is all that is signaled by the State’s

“strategic selection,” as respondent puts it. (Opp. Br. 4).

Respondent faults the State for what he contends is “an

unfounded prediction concerning the impact of the Ninth Cir-

cuit’s decision in Roy.” (Opp. Br. 5). Although the State con-

tends that “the Roy decision will ‘adversely affect the States

in the circuit,” leading “‘to many unnecessary and, for the

States, time consuming and expensive evidentiary hearings,”

(Opp. Br. 5, quoting Pet. Cert. 11), according to respondent

“[t]hat forecast is wholly inaccurate.” (Opp. Br. 5). For that

assertion, respondent relies on (1) general statements of law

made in other, earlier Ninth Circuit decisions, (2) the fact that,

since Roy, in only one district court case citing Roy did the

court order an evidentiary hearing on equitable tolling, while

in another “the court found equitable tolling based on the pa-

per record alone,” and (3) the claim that district courts in the

circuit do not often grant evidentiary hearings. (Opp. Br. 6-9).

5

All of those claims, even if accurate, miss the mark.” The

State’s complaint is not with broad statements of law that the

Ninth Circuit has made in other, earlier cases, but with the

legal analysis employed by the court in this case and with the

adverse impacts on the States and on federal habeas practice

that may result from this decision. And, given that the Ninth

Circuit issued its amended opinion in this case only a little

over five months ago, and that it may take awhile for the

court’s decision actually to result in more evidentiary hearings

that lead to written decisions, the lack of such decisions at this

point is neither surprising nor comforting to the State. In any

event, even accepting respondent’s assertions, the decision in

Roy has already led to one evidentiary hearing on equitable

tolling and one district court decision finding equitable tolling

without an evidentiary hearing. If the district courts in the cir-

cuit were as unlikely to grant evidentiary hearings on claims

of equitable tolling before Roy as respondent suggests, then

respondent’s post-Roy statistics hardly alleviate the State’s

concerns.

Thus, in the face of the State’s complaints that the Ninth

Circuit made it too easy to obtain an evidentiary hearing on

equitable tolling and that it set the bar too low for the dili-

gence component of such a claim, and in the face of the

State’s arguments that the Ninth Circuit’s approach conflicts

with that of other circuit courts of appeals, respondent offers

only case-specific and largely irrelevant responses.

* Respondent contends that “[rjesearch indicates that in

the Districts of Oregon and Washington, there never has been

a hearing on equitable tolling of the AEDPA statute of limita-

tions.” (Opp. Br. 7). He offers no support for that assertion.

6

C. Equitable tolling is not available to excuse the untimely

filing of section 2254 habeas petition.

In its petition, the State argued that equitable tolling is not

available to excuse the otherwise untimely filing of a federal

habeas corpus petition brought under 28 U.S.C. § 2254. (Pet.

Cert. 13-16). In an amici curiae brief, 32 other States join in

that contention and urge this Court to grant certiorari to con-

sider that significant legal issue.

Respondent replies that the State did not raise that issue

below. (Opp. Br. 9-10). The State candidly admitted as much

in its petition. (Pet. Cert. 13-14 n. 7). The State’s failure to

have raised the issue earlier does not preclude this Court’s

review. In the first place, in this case the Ninth Circuit, rely-

ing on that court’s earlier precedent, held that “the AEDPA

statute of limitations provisions * * * can be subject to equi-

table tolling.” Roy, 465 F.3d at 969, citing Calderon v. United

States Dist. Court (Beeler), 128 F.3d 1283, 1288 (9" Cir.

1997), overruled on other grds by Calderon v. United States

Dist. Court (Kelly), 163 F.3d 530 (9" Cir. 1998) (en banc). It

is “the settled practice of this Court, in the exercise of its ap-

pellate jurisdiction, that it is only in exceptional cases, and

then only in cases coming from the federal courts, that it con-

siders questions urged by a petitioner or appellant not pressed

or passed upon in the courts below.” Kentucky v. Stincer, 482

U.S. 730, 747 n. 22 (1987) (internal quotation marks and cita-

tions omitted; emphasis added). Here, the Ninth Circuit

“passed upon” the issue of whether equitable tolling is avail-

able in this federal habeas corpus context.”

> Moreover, it would have been futile for the State to have

challenged the court’s earlier decisions. The court simply

would have relied on them.

7

In addition, and even if the State’s failure to have raised

the issue below meant that it could not directly raise the issue

now, if this Court were to grant certiorari on some other ques-

tion or questions presented in the State’s petition, the Court

could consider the additional legal issue of the availability of

equitable tolling in a section 2254 case. Once this Court’s ju-

risdiction has attached, “consideration of issues not presert in

the jurisdictional statement or petition for certiorari and not

presented in the [lower court] is not beyond [the Court’s]

power, and in appropriate circumstances [the Court] ha[s] ad-

dressed them.” Vance v. Terrazas, 444 U.S. 252, 258-59 n. 5

(1980) (emphasis added). It would be appropriate to discuss

this important legal issue here because of the significant inter-

est that the States, habeas petitioners, and lower federal courts

have in the issue, and because it logically underlies the other

issues involving equitable tolling that are raised in the peti-

tion.

The cases on which respondent relies as indicating that the

State cannot pursue the issue of the availability of equitable

tolling are inapposite. Respondent cites Baldwin v. Reese, 541

U.S. 27 (2004) (Opp. Br. 10), but there the Court observed

that “[u]nder this Court’s Rule 15.2, ‘a nonjurisdictional ar-

gument not raised in a respondent’s brief in opposition to a

petition for a writ of certiorari may be deemed waived.’” /d.,

541 U.S. at 34. That rule, and that holding, do not apply here.*

Respondent also cites Sprietsma v. Mercury Marine, 537 U.S.

51 (2002). (Opp. Br. 10). In that case, the Court held that an

issue not ratsed by a respondent in the courts below was

“waived.” /d., 537 U.S. at 56 n. 4. Nothing in the Court’s

opinion suggests that the courts below had ruled on the issue,

however, and that fact distinguishes this case from that one.

* Moreover, in Reese the Ninth Circuit had not passed on

the issue that respondent raised in his merits brief. /d.

8

Finally, respondent relies on Roberts v. Galen of Va., Inc.,

525 U.S. 249 (1999) (per curiam). (Opp. Br. 10). There, this

Court refused to consider two alternative grounds for affir-

mance offered by the respondent because they “do not appear

to have been sufficiently developed below for [the Court] to

assess them.” /d., 525 U.S. at 253-54. Because the equitable

tolling issue here is a legal one, there is no factual record that

needed to be “sufficiently developed below.” Thus, this deci-

sion too is inapplicable.

On the merits of the State’s claim that equitable tolling is

not available in a case brought under section 2254, respondent

contends that “[i]t is well settled that the statute of limitations

is subject to equitable tolling.” (Opp. Br. 11). If that were

true, this Court would not have twice pointed out, the last

time quite recently, that this Court has not yet ruled on the

issue. Lawrence v. Florida, ___ U.S. ____ (2/20/07) (slip op.

8) (“We have not decided whether § 2244(d) allows for equi-

table tolling,” but assuming it does because the parties pro-

ceeded on that assumption); Pace v. DiGuglielmo, 544 U.S.

408, 418 n. 8 (2005) (same). Moreover, although respondent

is correct in asserting that there is no circuit split on the issue

(Opp. Br. 11), that hardly offers any solace to the States if the

circuits that have ruled on the issue have all gotten it wrong,

leading to much unnecessary litigation over the precise con-

tours of equitable tolling in the habeas corpus setting.

Respondent also contends that this Court’s decision in

United States v. Brockamp, 519 U.S. 347 (1997), relied on by

the State in its petition (Pet. Cert. 15-16), is inapplicable and

“has nothing to say” in this context because it is about tax law

and because habeas corpus is an equitable remedy. (Opp. Br.

11-12). Respondent misunderstands the basis for the State’s

reliance on Brockamp and why it is significant here. The im-

portant teaching of Brockamp is, as this Court later stated in

United States v. Beggerly, 524 U.S. 38, 48 (1998), that

9

“{e]quitable tolling is not permissible where it is inconsistent

with the text of the relevant statute.” The State’s point is not

that Brockamp (or Beggerly, which respondent ignores) is di-

rectly applicable here, but that the text of section 2244(d) also

is inconsistent with equitable tolling and that the lower federal

courts that have ruled that equitable tolling is available have

failed to give due attention to the statutory text. See

Brockamp, 519 U.S. at 351-52 (relying on the “explicit excep-

tions” to the time limits set out in the statute and on the stat-

ute’s detail); Beggerly, 524 U.S. at 48 (concluding that equi-

table tolling is inconsistent with the statute at issue there, in

part because the statute effectively already provided for equi-

table tolling because it started the clock running when the

plaintiff knew or should have known of the claim).’

> 28 U.S.C. § 2244(d)(D) states that the limitations period

runs from “the date on which the factual predicate of the

claim or claims presented could have been discovered through

the exercise of due diligence.” The statute is set out in full in

the petition. (Pet. Cert. 2-3).

10

CONCLUSION

For the reasons set out in the petition and in this reply

brief, petitioner respectfully requests that this Court grant the

petition for certiorari and reverse the decision of the court be-

low.

Respectfully submitted,

HARDY MYERS

Attorney General of Oregon

PETER SHEPHERD

Deputy Attorney General

MARY H. WILLIAMS

Solicitor General

JANET A. METCALF

Assistant Attorney General

Counsel for Petitioner

March 7, 2007