# Opposition Brief — Belleque v. Kephart, 127 S. Ct. 1880 (2007) (No. 06-1015) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_2065%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 2007 ## Text "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 UI TEE I pissin sects via disersbticnsiedaces cgpccwnicriectines l 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 PITT oScsnrsiipi dive vicinnievasingicasioubaibicgaiamnammne aaa: 10 TABLE OF AUTHORITIES Page Cases Cited Baldwin Co. Welcome Center v. Brown, Ca) snc crmsetnnenssnbenceveonesiiiee l Baidwin v. Reese, noi ss csavsnscsdivesorevevseveviverévesateotoes 7 Calderon v. United States Dist. Court (Beeler), RO RO ie, BFS ooo csscccccacecscscecsnsrssesvececenser 6 - Calderon v. United States Dist. Court (Kelly), EO Oe FG ..scussevdvecvesecavescecevesveces 6 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, sc srenenkgtonsbaneeserenvesvace’ 8 Roberts v. Galen of Va., Inc. I ssc csstnavavevoervevedevestrvecsectsoveseccuseves 8 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, ps Be Me ge: MER MER SEE eareeraree ree NenECoe AILERON 7 United States v. Beggerly, Fee aes Se Pe iniiniscndecnnptaciaiatiinacigpedbiinniuibeuadaiaiann 8,9 United States v. Brockamp, FF SF SE a PE dicsntrinisniccininnciaiddiagiedaintiatioiniiciem 8,9 Vance v. Terrazas, cia OS Eg MORRIE Setomretek wae eae eENOEES ep RI 7 Constitutional and Statutory Provisions Be tes EP iincinlainleiinciscbinidishientiapraceneecininiaibebudens 9 SP RE ais Me tess seusiiedAisepeatanh ise ceaanichaaaadeabilaaaiaialauaneonaiiiies 6 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_2065%3A3. Public record. Not legal advice.