# Opposition Brief — Norris v. Sasser (No. 09-45)

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2009

## Text

No. 09°45

In the

SUPREME COURT OF THI

Larry Norris, Director
Arkansas Department of Correction,

Andrew Sasser,

MOTION FOR LEAVY

proceed in forma pauperis

indigent and represented by court appointed ¢

‘'t, Eastern District of Arkansas

appointed and has continued to represent Mi

KE TO PROCE

clared indigent prior to

- “ ) ? 5° Y
to proceed in lorma pauperi

1)
Hnabdie

{ UNITED STATES

Petitioner,

Respondent

KD IN FORMA PAUPERIS

He has remained

uf an LOY.

ounsel since that time. Mr. Sasser

1999 before the United States

Che Federal Pubhie Defender was

Executed on Septembe

Ait WP
Scott Braden*
Deborah Anne Czuba
Assistant Federal De —
— of the Federa! Public De yee Y
vastern and Western Districts of Arka
1401 West Capitol, Suite 490
Little Rock, Arkansas 7220]

No. 09-45

[In the

SUPREME COURT OF THE UNITED STATES
October Term, 2009
Larry Norris, Director

Arkansas Department of Correction,
Petitioner,

Andrew Sasser.
Respondent

Brief in Opposition
to Petition for a Writ of Certiorari
to the United States Court of Appeals for the Eighth Circuit

CAPITAL CASE

Scott Braden*

Deborah Anne Czuba

Assistant Federal Defenders

Office of the Federal Public Defender
Eastern and Western Districts of Arkansas
1401 West Capitol, Suite 490

Little Rock, Arkansas 72201

(501) 324-6114

“Course! of Record Appointed Counsel for
Respondent Andrew Sasser

TABLE OF CONTENTS

TABLE OF CONTENTS

TABLE

Ff AUTHORITIES

STATEMENT OF THE CASE

REASON

ff

The Court of Appeals’ Authorization Decision
District Court Proceedings Following Authorization

The Court of Appeals’ De

S OR DENYING THE WRIT

The First Question Presented

A The First Question Fes sented By Petitioner Norris Was

Not Roinad or Passed On By The Lower Courts .

B The Eighth Circuit Was Correct in Remanding M

r

Sasser's Atkins Claim for an Evidentiary Hearing

Petitioner Norris’s Second Question Presents No Actual
Conflict and Merely Seeks To Change a Ruling He
OS Re RT a RIE ee IPE Sa ON PR oD

The Third Question Presented

A The Eighth Coreuit’s Holding that a Statute of Limitations
De fo nse May Be “‘orter ted by the Stat c 'S Fai lure to Raise
it In Its Responsive Pleading in the District Court
Creates No Conflict With the AEDPA

B There is No Conflict Between the Eighth Circuit and the
Sixth Circuit on This Issue

C There I3 No Disarray in the Lower Federal Courts

Regarding “AEDPA’s Distribution of Responsibilities of

the Courts and of the Parties under 2244(b) and
Scone of 2244(t

ibout

+h5,
ik(

LO

14

D

CONCLUSION

The Eighth Circuit Considered and Resolved
Against Petitioner Norris the Statute ot
Limitations Issue, and Language itegarding
Its Ability To Raise the Statute of
Limitations Sua Sponte is Dicta and
[rrelevant. to the Decision in Mr. Sasser’

Case re fle REN ERIS: ine he re 24
Mr. Sasser’s Second Petition Was Timely ae
3]

FEDERAL CASES

Virgina

Atkins \
Baldwin v. Reese, 541 U
barnett v. Loper,

Bennett v. United

Bracy v. Gramley, 520 U

Brown v. Lensing, 171

Buchanan v

vamaraque.

7U
Carcieri v. Salazar,
Coleman v. United State
Cotton v. Grisby,
Day v. McDonough, 547

Daz v. Kellv, 15 F.3d
Kngram v
Ford v. Norris, 67
Goldblum v
Gray v. Netherland, 518
In re Daniels, 2001 U.S

In re Fri). 437 F.8d 1080

5 36 U

541 F.3

Sta tes

F.3d 10!

s, 106 F.3d 339

156 F.3d 727

149 (2d Cir

- m A . x ~
Arkansas, 040

"3d 162 (8

510 IF

TABLE OF AUTHORITIES

S. 304 (2002)

8. 27 (2004

1d 804 (8th Cir.)
ith Cir

19 F.3d 468 ( 1997)

S. 899 (1997)

31 (5th Cir. 1999)

121 Fed Ap p'x 303 (0th Cir

U.S (2009)

(10th Cir. 1997)

(7th Cir. 2006) tannin

7U.S. 198 (2006) .

208)
U.S. 1159 (Aug. 22, 2005)
th Cir. 1995).

3d 204 (3d Cir. 2007)

U.S. 152 (199¢

App. LIXIS 27453 (D.C. Cir

‘lith Cir. 2006)

2005)

99 ")
£3, 29
1G

on

'

m9
cree 20
Te

]

Q

ry,

26, 27
1 97
ot, al

Table of Authorities (Con't)

In re Lewrs, 484 F.3d

ln re McDonald, § 1 §39 (6th Cir. 2008)

In re 58 (1970)

TA/) 95 , NAOT TT ¢
W Dip, 591 U.S. 3

Jackson v. Virginia, 443 U.S. 307 (1979)

Jones v. Hulick, 449 F.3d 784 (7th Cir. 2006)

Lawrence v. Armontrout, 31 F.3d 662 (&th Cir

Linano v. United States, 95 I

Mavle v. Felix, 545 U.S. 644 (2005)

Meyer V, Holley, 537 U.S. 280 (2003)

Ochoa v. Sirmons, 485 F

119 (2d Cir. 19%

od 638 (10th Cir. 2007

19!

Outlaw v. Sternes, 233 F.3d 453 (7th Cir. 2000)
Penry v. Lynaugh, 492 U.S. 302 (1989)

Queene, Ltd. v. Nygard International, 32) F.3d 2!
Sasser v. Norris, 553 F.3d 1121 (8th Cir. 2009)

Sunpson v, Norris,

{99 F.3d 874, cert 28 S.Ct. 122

denied |

Smith v. Butler, 366 U.S. 161 (1961)
33 U.S. 656 (2001)
United States v. Cathey. 25

United States v. Cuozzo0, 962 F°.2

er
United States \

490 F.3d 1029 (8th Cir. 200°

> 4

6 (2008)

82 (2d Cir

Walker v. True, 399 F.3d 315 (4th Cir. 2005) . 12,13
Whab v. United States, 408 F.3d 146 (2d Cir. 2005) 30)
Wihams l Tiavilor. 529) U S 120 (2000) , Sul yy,

STATE CASES

Sasser v. State, 993 $.W.2d 901 (1999) ee Ee are
STATUTES AND RULES

28 U.S.C. § 2244(b) 7,17
28 U.8.C. § 22446h}(2) 23

28 1).S.C. § 2244(b)(9) ...............00..,.... Peabo he . ae 27

mm

28 U.S.C. § 2244(b)(3)(E) . | au u 3
OT BI on ois dss daroclepsissamaneaebatreneic enemas a ae
28 U.S.C. §2244(d)D) . / ‘eisai aeseigeiani iT, 22, 22

28 U.S.C. § 2244d) 1D) ........ ue tae

28 U.S.C. § 2253 | | | 6

Fed. R. Evid. 104(b) ; Pere s 19

STATEMENT OF THE CASE

‘he Petition tor Certrorai ntalns serious inisstatements ol cha
law which directly bear on what issues properly d | his |
Certy ri were granted. 4 i n ord mply cl r!y and fully wit!
Supre me Court Rule 15(2), Ri pnondent Andrew sasser in ludes a statement of th
case in this Briefin Opposition. Sup. Ct. R. 15(2); see Ca t azar
S Ut)s}} plus lisput ictual lion wa itoa I is ft
for Coun Bald f 11 U r (4 ) al
argument not raised 1n ndent's brief in opposition to a petition for a writ of
ertiorari may be deemed wa 1). A ussed below itrary to Petits
Norris s claims, the Petition pz nts no significant q tions regarding tl
application of AEDPA; Petitioner Norris has reworked the Lighth Circuit's opimon
In Sa sé) \ 7 | 53 F.3d 1121 (&th Cir. 2009) to seek review Ot the Kiehth
Circuit s proper response to \rxansa jai [ | M1} m \
decision in Atkins v. Virgin S. 304 (2002
The Eighth Cirecuit’s « not 17 itlict with the di { this Court
r those iny ot circ rt nt rulqy that he { { t]
Ca in evidentiar' wing must | nducted on the me) f Mh ©} \t/
cl id that ant ! nt { tall might lve id regard
imeliness of M nd petition was forfeit the its fail pr

A. The Court of Appeals’ Authorization Decision

On June 20), 2002, after Mr. Sasser’s first habeas petition had already been
tigmissed with prejudice by the district court, this Court handed down its decisio:
Atkins v. Virginia, 536 U.S. 304 (2002). On June 18, 2003, while his appeal o
the district court’s denial of relief was pending, Mr, Sasser filed a Motion for
Remand or, in the Alternative, a Motion to File a Second or Successive Habeas
Corpus Petition in the Eighth Circuit Court of Appeals. Mr. Sasser attached to ln
contained extensive information and exhibits regarding the evidence underlying his
Atkins claim. Mr. Norris responded to Mr. Sasser’s motion, arguing that thi

nstitutional law: that

Court's decision in Atkins did not create a new rule of c
despite this Court’s prior decision in Penry v. Lynaugh, 492 U.S 302 (1989), My
Sasser was required to have raised his federal constitutional claim prior to Atkins
and that Atkins was not retroactive. At no point did Mr. Norris argue the
intimeliness of Mr. Sasser’s petition
On August 21, 2003, the Kighth Circwt granted Mr. Sasser’s motion to

nand, “and to the extent the request for remand [was] the functional equivalent

to an appli ation to file a successive habeas petition, grant d Mr. Sasser’s motion

t } ) ‘ ° y a . f ’ \ . 4 f 7 + ?
) file a successive petition. Sasser v. Norris, No. 02°3101, Doc. 37, Judgment, at 1
a Aug. 21, 2003). The court directed the district court to decide tw

iestions: (1) whether Mr. Sasser is mentally retarded: and (2) whether pursuant t

tkins V. Virguua, 036 U.S. 304 (2002), the Eighth Amendment prehibits ht

7S

uUllor
shortly alter remand \ugust 2 03, the district url red a
luling order directing Wi 1SSt Hie Ah amend lp Lilion and a motion |

uit’s remand order — whether M ey had “waived his Atkins claim by not
ing a claim in the state courts under a pre-Atkins state mental retardation
te Sy Vor? } Leb af ) | ( ()) y al \ \
\lso on August 29 3, Mr rris flied a Pet ni Cal nth
hth rcuit, arguing [ that M er had CX! tn f
m in the state court S r \ Petition for Rehearing wit!
ition for Rehearing En Bane (8th Cir. At Mr. Nor: pued tha

l ! 4
1use OL Nis lure | x! \ n, | rr ul f
1
ding the timelin {Mi
A ; ‘ ; |
Un pra U4 ntn | } il 17 nt }
1) rtt It j [ i} t if i {
’
! istitutior + j . . } y tif
' it i | i h ‘ }
Rehea) wat 4-5 rhy ( A J eT , ¢ | } t
? 1a a [ } ' j Wa
P . '
i A | }

exhausted and, in the event that a viable state court remedy was identified, to
consider holding the remanded Petition in abeyance pending resolution of Mi
Sasser's claim by the state courts. Sasser v. Norris, No. 02°3103, Doc. 44, Amended
Judgment, at 1 (8th Cir. Apr. 22, 2004)
B. District Court Proceedings Following Authorization

Pursuant to the district court's direction, Mr. Sasser filed an amended
petition setting forth his Eighth Amendment mental retardation claim on
September 3, 2004. Sasser v. Norris, No. 00°4036, Doc. 48, Second Supplemental
and Amended Petition (W.D. Ark. Sept. 3, 2004). Again, Mr. Sasser put forward
extensive information regarding the evidence underlying his Atkins claim. Mi
Sasser specifically requested an evidentiary hearing on the issue of his mental
retardation. /d. at 31. Mr. Norris filed his Response on November 5, 2004, Sasser
v. Norris, No. 00°4036, Doc. 51, Response (W.D. Ark. Nov. 5, 2004), and again, Mi
Norris asserted no issues regarding the timeliness of Mr. Sasser’s successive
petition

The denial of certioran in another Arkansas death penalty case, Engrain s
Arkansas, 545 U.S. 1159 (Aug. 22, 2005), finally made-ctear that no viable state
court remedy existed for Eighth Amendment claims such as Mr. Sasser’s, and the
parties accordingly began the discovery process before the district court. In his
) Mr. Sasser's discovery requests, Mr. Norris for the first tum:
mentioned the tameliness of Mr. Sasser’s Petition, incoherently stating that Mr

Sasser “did not present his claim ot inental retardation in state court nd be aust

then went on to find that the claim was procedurally defaulted because it had not

been presented lo the state courts during his state post -conviction proceedings

The district court further found that Mr. Sasser had not shown that an exception to
the procedural default doctrine applied to his case, and demied relief

Mr. Sasser filed a Motion to Alter or Amend Judgment Pursuant to Fed. R
Civ. P. 5Se) on January 23, 2007. Sasser v. Norris, No. 00-4036, Doc. 73, Motion t
Alter or Amend Judgment Pursuant to Fed. R. Civ. P 59(e) (W.D. Ark. dan. 23
2007). That Motion was demed by the district court on April 18, 2007. Sassci
Norris, No. 00°4036, Doc. 80, Order Denying Motion to Alter Judgment (W_D. Ark
Apr. 18, 2007). Mr. Sasser timely filed his Notice of Appeal on May 17, 2007. On
June 11, 2007, the district court granted a certificate of appealability pursuant to 28
U.S.C. § 2253 on two grounds, “Ground 1: Whether this Court was correct in its
ruling that Mr. Sasser was not entitled to relief on his ciaim that his death sentence
violates the Highth and Fourteenth Amendments because he is a person with

mental reterdation; land} Ground 2: Whether this Court was correct in its ruling

develop and present mitigating evidence including evidence of mental retardation

.. The Court of Appeals’ Decision

On appeal, Mr. Sasser argued to the Eighth Circuit that its prior decision in

Simpson v. Norris, 490 F.3d 1029 (8th Cir. 2007), reh'g denied, 499 F.3d 874, cert

~

denied 128 S.Ct. 1226 (2008), was controlling on the question of whether his Atkins
claim was procedurally defaulted and mandated reversal. Mr. Sasser further
argued that the district court had incorrectly demied his request for an evidentiary
hearing, noting that in its prior remand order the Fighth Circurt had specifically
directed the district court to conduct an cvidentiary hearing and summarizing thi

detailed factual allegations Mr. Sasser had made in support of his Atkins claim

), Appellant’s Brief and Addendum (8th Cir. Dec. 6,

Mr. Norris's responsive brief focused on attempting to distinguish the factual
and procedural circumstances underlying Mr. Sasser’s case from those that had

been presented to the Eighth Circuit in S:mrson." My, Norris also argued that Mr
Sasser had not met the requirements for filing a successive petition under 28 U.S.C

§ 2244(b), in that his petition was untimely under § 2244(d) and his claim did not

rely on a new rule of constitutional law under § 2244(b)(2). Mr. Norris argued that

“tn his Statement of Facts before the Eighth Circuit, Mr Nerris mislead: gly and incorrectty quoted
a prior pleading filed by Mr. Sasser. Mr. Norms stated that Mr. Sasser “indicated that, although at
that pe:nt his claim “may have] belen: inty a theory and not supported dy any solid evidence,” he
nevertheless was entitled to discovers " Sasser v. Norris, No. 97-2385, Brief for Appeilee at 3, 39
8th Cir. Feb. 21, 2008) Mr. Norris gratuitousiy altered the context of Mr. Sasser’s pleading, which
actually was not referring to his own claim, but rather quoting this Court's opinicn in Bracy 1
Gramiey, 520 U.S. 899 (1997), in a discussicn of the pou cause prerequisite to the availabilty of
jiscoverv. Sasser v. Norris. No. 00-4036. Doe. €0 Motion “or Leave to Conduct Discovery at 5 (WD)

the district court was correct in disposing of Mr. Sasser’s claim on procedural]

default grounds and averred that the district court had given Mr. Sasser ample
opportunities to present additional evidence regarding his claim through motions
and pre-hearing discovery. At no point in his brief, did Mr. Norris mention or cite,
much less argue, the question of the applicability of 28 U.S.C. § 2254(e){2).

The Eighth Circuit reversed the decision of the district court and remanded
for adjudication of the merits of Mr. Sasser’s Atkins claim. Petr App. at 15-16. The
court first recognized that it was bound by its prior decision in Siapsoi to find that
Mr. Sasser had not procedurally defaulted his Atkins claim by failing to present it
in state court at a tame when the claim did not exist. The Eighth Circuit further
held that, although an evidentiary hearing would not necessarily be required in
every case, Mr. Sasser had made a specific factual showing that he is mentally
retarded under Atkins sufficient to require that an evidentiary hearing be
conducted on his claim. ‘The Kighth Circuit noted in its opinion

Sasser's petition alleges (1) he mects the diagnostic criteria for mental
retardation promulgated by the American Association on Mental
Retardation and the American Psychiatric Association: (2) his 1Q is 79
which Sasser asserts places him in the mentally retarded range,
taking into account the margin of error; (3) he was incapable of
graduating from high school despite being enrolled in school for twelve
years; (4) 1e was never able to live independently and was 29 at the
time of Kennedy's murder and still living with his mother (Sasser
‘laims he ence attempted to leave home, living in an abandoned truck
in the woods near his mother's home, and sneaking into Ais mother's
house to get food from the refrigerator); (5) he was incapable of paying
bills or maintaining a checking account; (6) he was capable of only the
simplest, manual-labor jobs; and (7) he manifests significant deficits :n
intellectual and adaptive functioning. While Sumpson may not
mandate an evidentiary hearing in every conceivable set of

circumstances, there is no question the allegations in Sasser's petition
are as adequate as Simpson's pleading threshold where the petitioner
"alleged that he 1s mentally retarded as Atkins defines that condition’

in order to obtain an evidentiary hearing on his mental retardation

claim.
Petr App. at 9-10. Nowhere 1n its opinion does the court cite to § 2254(e)(2) or
discuss its application in Mr. Sasser’s case

The Eighth Circuit also addressed the issue of Mr. Norris's failure to properly
raise before the district court his defense that Mr. Sasser’s petition was barred by
the statute of hmitations. Applying its controiling decision in Barnett v. Roper, 541
F.3d 804 (8th Cir.), reh'g en bane denied, No. 07-1234 (8th Cir. 2008), the court
found that Mr. Norris had forfeited his argument by arguing it for the first time on
appeal. In Barnett, the court had held that, pursuant to the Federal Rules of Civil
Procedure, an AEDPA limitations defense ts forfeited unless pleaded in an answer
or an amendment to the answer. 27. at 807. Although noting that an exception to
this rule has been established by this Court that allows a district court to sua
sponte consider the defense, id. (citing Day v. McDonough, 547 U.S. 198, 209
(2006)), the Court declined to expand that exception to perinit an appellate court t

disregard the State’s forfeiture. Jd.”

°Mr Nerrss sought rehearing en bane from the Fighth Cirewt and it was denied. dudge Ce.loton
disser.ted from the demal, although on differant grounds than those raised by Mr Norris in his

Petition for Certiorarn

REASONS FOR DENYING THE WRIT
3 The First Question Presented

A. — The First Question Presented By Petitioner Norris Was Not Raised or
Passed On By The Lower Courts.

Certiovari should be denied because the first Question Presented by the
Petition was not raised in or decided by the Eighth Circuit Court of Appeals in this
case. No citation to, much less discussion of, 28 U.S.C. § 2254(e)(2) appears in the
opinion of cither court,” and it is not mentioned by Mr. Norris anywhere in his
appellate brief. Mr. Norris's representation to this Court that “[t]he circuit's

decision presents issues that deserve further review concerning: (1) how 28 U.S.C. §
2.254(c){2) applies to a claim that is based on a previously unavailable rule of
constitutional law,” Pet. at 3, and his criticism of the court’s allegedly “flawed
construction of § 2254(c)(2)'s opening clause,” Pet. at 15, are thus seriously
misleading. See Meyer v. Holley, 537 U.S. 280 (2003) (refusing to consider issues
not directly decided by the court of appeals).

The district court below ruled that Mr. Sasser “did not properly and timely
raise [his menta] retardation] claim in his state court appeals, nor has he
successfully shown that a procedural default exception apples.” Petr App. at 29

The court held that Mr. Sasser did not satisfy the “cause and prejudice” exception to

the procedural defau't doctrine because he had “failed to provide sufficient evidence

Reference to § 2254(¢)(2) appears in the district. court order denying Mr. Sasser's Motion to Alter or
Amcnd Judgment Pursuant te Ped. R. Civ P. 59fe), but this was tn response to the arguments of Mr
Sasser, not those of Mr. Norris

of menta! retardation.” /d. at 30. Accordingly the district court never reached the
question of whether § 2254(e)(2) had any application to this case.

On appea!, Mr. Norris defended the district court’s decision on its terms,
arguing that the district court “had reached the correct result.” See Sasser v.
Norris, No. 07-2385, Brief for Appellee at 8 (8th Cir. Feb. 27, 2008). Mr. Norris
never asked the court of appeals to determine if Mr. Sasscr’s request for an
evidentiary hearing on his Atkins claim satisfied the requirements of 28 U.S.C. §
2254(c)(2), or otherwise mentioned that statutory provision.

The Eighth Circuit reversed, finding, as required by its holding in Simpson v.
Norris, 490 F.3d 1029 (8th Cir. 2007), cert. denied, Norns v. Simpson, _ U.S. _,
128 S.Ct 1226 (2008), that Mr. Sasser’s mental retardation claim had not been
procedurally defaulted. The court also reviewed the evidence that Mr. Sasser had
presented to the district court in support of his Atkins claim and found it amply
sufficient to entitle him to an evidentiary hearing. Contrary to the misleading
assertions of Petitioner Norris, the Eighth Circuit, too, never addressed the
application of 28 U.S.C. § 2254(¢)(2) to Mr. Sasser’s mental retardation claim.

Mr. Norris asserts that

the Eighth Circuit rejected the district court's application of 28 U.S.C.

§ 2254(e)(2) to Sasser's Atkins claim, reasoning, as it did in Simpson v.

Norris, 490 F.3d 1029, 1035 (8th Cir. 2007), reh’g denied, 499 F.3d 874,

cert, denied, 128 S.Ct 1226 (2008), that, because the new constitutional

rule announced in Atkins was not available during State court
proceedings, Sasser “can hardly be said to have lacked diligence in
developing the factual basis of that claim in state court.

Pet. at 10-11. In fact, im its opimon the Engath Circuit never addresses whether Mr.

Sasser exercised diligence in his state court proceedings. Rather, the quoted
language appears at the end of a block quote from Simpson, which the court cited in
Mr. Sasser’s case for the proposition that an Atkins claim is not defaulted by an
omission that occurred before Atkins was decided. Pet’r App. at 7-8

Petitioner Norris essentially is attempting to use Mr. Sasser’s case as a
vehicle to seek review the decision of the Eighth Cireuit in Simpson, a case in which
this Court has previously demed Mr. Norris's petition for certioran. Simpson v
Norris, 490 F.3d 1029 (8th Cir. 2007), cert. denied, Norris v. Simpson, — U.S.

128 $.Ct 1226 (2008).

As the Fighth Circuit never reached the issue of whether to apply §
9254(e)(2) in Mr. Sasser’s case, it cannot be said to be in conflict with the decision of
this Court in Williams v. Taylor, 529 U.S. 420 (2000). In Willams, the Court
examined the application of 28 U.S.C. § 2254(e)(2) to cases in which the claim at
issue was raised in state court proceedings, but its factual basis was for some
reason not developed. Wi/hams did not address the distinct question of how 28

’

U.S.C. § 2254(e}(2) applies in a “new rule” situation, as this question was not before
the Court. Even had the Eighth Circuit ruled as Mr. Norris claims, its decision

therefore would not be in conflict with Wiliams.’

"Not would it have created any circuit split, as the only other circuit to address this issue ts in harmony with the
decision af the Erghth Circuit in Sempson v. Norris, 490 F.3d 1029 (8th Cir. 2007). The Fourth Cireurt, in Wa/ker v
True, 399 F.3d 315 (4th Cir. 2005), addressed the issue of whether 28 U.S.C. § 2254(¢)(2} bars an evidentiary
heanny on a mental retardation claim for a prisoner whose state challenges were exhausted by the tune Atkins was
decided. Mr Waiker raised a claim under Atkins vs Virginia in a successive petition afler his uutial habeas peubon
had been dented by the district court When the Fourth Circuit originally remanded Mr. Walker's Atkins claim to the
district court, it left open the possibility that the district court could disiniss the claim to allow Virginia the first
opportunity to assess whether Mr. Walker was mentally retarded. However, after the Fourth Circuit authorized Mt
Walker's successive petition, Virginta enacted a statule prohibiting Atkins claims from being broupht :n state court'in

It is well established that this Court does not grant certiorari to consider
issues that were not decided below. See, c.g, Smith v. Butler, 366 U.S. 161 (1961)
(dismissing certiorari as improvidently granted because “the decisions in the
Florida courts did not turn on the issue on the basis of which certiorari was
granted”). Mr. Norris’s Petition should be denied because the court of appeals never
passed on the issue he now asks this Court to decide

B. The Kighth Circuit Was Correct in Remanding Mr. Sasser’s Atkins
Claim for an Evidentiary Hearing.

The Eighth Circuit reached the correct result by remanding Mr. Sasser’s
Atkins claim for an evidentiary hearing. The court found that, in his appheation for
permission to file a successive petition and in his second amended petition for

habeas corpus, Mr. Sasser made numerous detailed factual allegations that, 1

proven, establish he is a person with mental retardation. The kighth Circuit noted
in Its Opinion

Sasser's petition alleges (1) he meets the diagnostic criteria for mental
retardation promulgated by the American Association on Menta!
Retardation and the American Psychiatric Association: (2) his IQ is 79,
which Sasser asserts places him 1n the mentally retarded range
taking into account the margin of error: (3) he was incapable of
graduating from high school despite being enrolled in school for twelve
years; (4) he was never able to live independently and was 29 at the
time of Kennedy's murder ard still living with his mother (Sasser
claims he once attempted to leave home, living in an abandoned truck
in the woods near his mothers home, and sneaking into his mother's

a successive habeas petition. Walker, 399 5 3d a: 318-319. Finding that Mr Walker's claim “ulumately derives
fiom his ngits under the Exghth Amendment,” a at 319, the Fourth Circuit held that § 2254(e)(2) did not apply
because Akins was decided atier the Mr. Walker's conviction became fine! “Walker's enuttement to an evidentiary
hearing 1s not addressed by the federal habeas statutes, Secticn 2254(¢)(2) does not apply because Walker has no
failed to develop the factual basis of {his] clan in State court.” See Walker, 399 F.3d at 314-319 (quoting William

v. Taylor, $29 U.S. $20,432 (2000))

“

house to get food from the refrigerator); (5) he was incapable of paying

bills oy maintaining a checking account, (6) he was capable of only the

simplest, manual-labor jobs; and (7) he manitests significant deficits in

intellectual and adaptive functioning
Pet’r App. at 9°10. The Ihghth Circuit found that, if proven, these allegations
entitle Mr. Sasser to relief from his sentence. As the State of Arkansas will n
afford Mr. Sasser an evidentiary hearing in which to develop these facts, the Kighth
Circuit. correctly held that Mr. Sasser was denied a full and fair hearing on his
ighly meritorious claim in state court, and the district court erred in denying Mi
Sasser a hearing. The decision of the Eight Circuit to remand Mr. Sasser’s case for
an evidentiary hearing was correct and nol contrary to any prior decision of this
Court. Therefore, certiorari must be denied
'
(

II. Petitioner Norris’s Second Question Presents No Actual Conflict and Merely

Seeks To Change a Ruling He Dislikes.
With regard to the second question presented to this Court, tl
Circuit's opinion poses no actual conflict, with any precedent from this Court, th

opinions of any circuit court, or the Rules Governing Habeas Corpus Cases, and Mi

—

Norris merely seeks certiorari to alter a particular judgment wit!
disagrees. Mr. Norris's argument for granting the writ also misstates both th
record of the case and the holding of the Eighth Circuit below

My. Norris mischaracterizes the Kighth Circuit's holding as “that the district

court must hold an evidentiary hearing on S rs Atkins claim based solely on the
facts alleged in the petition.” Pet. at 15. That ot at ail what the Kighth Cireuit

Sasser's petition alleges (1) he meets the diagnostic criteria for mental
retardation promulgated by the American Association on Mental
Retardation and the American Psychiatric Association; (2) his IQ is 79
which Sasser asserts places him in the mentally retarded range
taking into account the margin of error; (3) he was incapable of
graduating from high schoo! despite being enrolled in school for twelve
years; (4) he was never able to live independently and was 29 at the
trume of Kennedy’ s murder and stil! living with his mother (Sasse
laims he once attempted to leave home, living in an abandoned truck
in the woods near his mother's home, and sneaking into his mother's
house to get food from the refrigerator): (5) he was incapable of paying
bills or maintaining a checking account: (6) he was capable of only th
simplest, manual-labor jobs: and (7) he manifests significant deficits in
intellectual and adaptive functioning. While Simpson may not
mandate an evidentiary hearing in every conceivable set of
circumstances, there is no question the allegations in Sasser's petition
are as adequate as Simpson's pleading threshold where the petitioner
"alleged that he is mentally retarded as Atkins defines that condition"
in order to obtain an evidentiary hearing on his mental retardation

claim.
Pet'r App. at 9°10 (emphasis added). Accordingly, the court’s reference to the
language in Simpson - that a petitioner “is entitled to a hearing simply by virtue of

alleging that he is mental! retarded as Atkins defined that condition,” Pet'r App. at

well-grounded suspicions that Mr. Sasser 1s a person with mental retardation and

allegations in Sasser's case Sunpson expressly requires an Atains evident

|

li is obvious then thal the re 1S no ¢ mithict with th Court bola ig!

Blackledge v. Aison, 431 U.S. 63 (1977)," that not every set of allegati

mandate an evidentiary hearing, to which the Kighth Circutt Inguage 18 virtual]

ide ntical

Petitioner Norris further mischaracterizes the Kaghth Circutt’s holding. and

district court’s authority to expand the record.’ Pet. at 17. lirstly, the distr
court never ordered Mr. Sasser to expand the record. Kather, it simply set f
briefing schedule, directing Mr. Sasser to provide the court with any additior
information, be it evidence or pleadings thal Mr. Sasser wanted the court to
consider at that juncture. Sasser v. Norris, No. 00°4036, Doc. 65, Scheduling Orde:
2 (WD. Ark. dune 14, 2006)
Motions regarding any additional] information Petitioner would like th
Court to consider in relation to his mental retardation claim (suck
motions for leave to file a supp!ementai and/or amended Petiti
upplement the record, and for an evidentiary hearing) must be fil
by August 31, 2006

id. Having set forth the factual basis for fis claim in detail in his P

ubmitted the preliminary Affidavit of an expert outlining the evidence supportiny

In Alison, this Court agreed with the Pourth Circuit's remand of the petition is |
in evidentiary hearing. Atissuc in A//ison was the sufficiency cf tl etitioner’s pl nist

ind whether the state court record estublished the adequacy of Mr. Allison's plea, Jn My. Sa

ise, unlike thatin A//rson, there is no state court record, as the State of Arkan hha 1 {

rovide any avenuc for addressing mental retardation claim | 1 post

t ial iT 1 lor an ¢ ntial } h-4 Mr ria ire i

ta hed | titleme) i heal thu tted ld)
inlormatl if [ | Li

ng ! I lf t list

itt iLy Lo ore pa nottne } i ! N i ! f f
1 na itiiles | | Lior ! il | i]

| tt yu | j t nicath i }
1d lp
[I] he Third Question Presented

man ry dt I ly | i
244(d)(1) before a petition n be adjudicated on th rit it)
irgument presented py Mt rris im his Petits r | I") the rea
ran th res} is question, h tually rai lista
rirst, what jucl irty to} f
tT Jimitati een | i ita
1eten l art 11a 10n |
l ) py
A The Kighth Circuit’s Holding that a Statute of Limitations Defense

May Be Forfeited by the State's Failure to Raise It In Its Responsive
Pleading in the District Court Creates No Conflict With the AEDPA

tt

} t

' y
!
)

|

rr

))

TT r

1992) (det lant forfeited ar that government failed to meet I’ed. R. [vid
UAL preliminary showi quirement, ‘the | vas on ithe defendant! t
lOve | Crixe Ct vhen ernn t fail { tis! ts Durde
f
l'} ime resull per is here; ther tt no basi treat t atut
[limitations ina nd or su ve petition ntext any dillerent than asi
} v. McDo / I } Vhnere the tactual ttin i first
Le | ii D) i il i i
th 11S ( Lt \ f lymoitation 1a te, despite the Stat
forfeitu . Day Vi » O47 | Te My Mav involved an init
1 netition in which the St ulated the filin te for the petition
concluding that it was timely w nin fact it was not. The magistrate judge in th
ticed the misca:culation, and recommend that the petition be dismissed

taken t) pall ISKIng the ol to amend iswet this Vou
nd tha { t | | mm defense rn tr ctl t W
trict courts may consider th itute of limitation 1a sp they are also
under n bliga mm LO . la t ZU
) nete Jol this | t ! | } )
| enth | Pil I } nega | yur | ! | t
imitatioy La {7 | t 4
t 1OnCT ie i { Peay iuthority { tha
abea u mnthet with forferture rule that toe forte) » rule will not ap ily Bevona ch
rl ef li! | ud Luthor Tustyce ilye it f ’
i r
flict Detween the | eval itu I) 1 na ALUPrA wi ! t tat
ima W ) DDil 1 tre roaina t¢ r f rwhich the ay \ id

Relying on Tyler v. Cain, 533 U.S. 656 (2001), Mr. Norris, as stated above,

confuses the issue of who has the burden to make a particular showing with the
distinct question of whether the opposite party can forfeit an argument that the
burden has not been satisfied. Petitioner Norris's reliance on 7y/er is unavailing.
In Tyler, the Court was speaking to which court and to what standard a claim ina
successive petition must be made and must satisfy. /d. at 660661 and n.3. 7 yer,
however, does not. speak to whether a defense that a burden has not been met can
be forfeited

Petitioner Norris's reliance on Bowles v. Russel/, 551 U.S. 205 (2007), ts
equally unavailing.'' In Bowles, this Court dealt with a district court's extension of
a deadline to file a notice of appeal, after the initial time period for filing the notice
of appeal had already expired. Jd. The Court found that the deadline for filing a
notice of appeal is jurisdictional, and therefore the petitioner could not rely on
forfeiture or waiver of the issue by the state. /d. at 213. In contrast, this Court
expressly held in Day that the AEDPA statute of hmitations ts an affirmative
defense and 1s not jurisdictional

Mr. Norris addttionally attacks the factual basis of the Fighth Circuit's
decision, stauung that the court “adepted Sasser's erroneous assertion that the State

did not raise the limitations issue at ary time before adjudication in the district

forfeited the tumel ness issue it had failed to raise due to miscaleulation Vay, 547 US. at 212-

i | a A e
Petitioner Norris raises this hne of argument, that Mr Sasser cannot rely on the forfeiture rule to

excuse the alleged untimehiness of his success:ve petit:on, for the first time in this petition fer

certiorar: to this Court. [: was not raised to the Eighth Circuit below

court.” Pet. at 18. This is a red herring. In the district court, Mr. Norris indeed

made passing references to the statute of limitations in a notion to preclude
discovery and in a response made to Mr. Sasser s request for discovery. Neither of
these references were sufficient to satisfy the requirements of Day and the Federal
Rules of Civil Procedure that the defense be raised in the first responsive pleading
or amendment thereto. See Fed. R. Civ. Proc. 8(c). See also Gray v. Netherland,
518 U.S. 152, 166 (1996); Diaz v. Kelly, 515 F.8d 149, 158 (2d Cir. 2008) (applying
Rule 8(c) ina habeas case); Ford v. Norris, 67 F.3d 162, 165 (8th Cir. 1995);
Lawrence v. Armontrout, 31 F.3d 662, 666 (8th Cir. 1994). See generally SECTION
2254 RULES 11 (“The Federal Rules of Civil Procedure, to the extent that they are
not inconsistent with any statutory provisions or these rules, may be applied to a
proceeding under these rules”). As wath other affirmative defenses hsted in Rule
&(c), the statute of limitations is not a yurisdictional issue, see Day v. McDonough,
547 U.S. 198 (2007). The fact that the state mentions the issue in a motion filed
years into the litigation that recites a laundry list of procedural issues and
ultimately concerns only discovery patently fails to satisfv the requirement that it

be properly presented in a responsive pleading.”

Indeed the fact that Mr. Norris dic mentron the statute of imitations defense before the district
court undercuts his argument before this Court. The district court’s silence on the matter in the face
if Mr Norris's reference supports the proposition that it considered the statute of limitatiuns, and
found that Mr. Sasser’s petition was timely, instead rejecting the petition un procedural default
grounds

B. There is No Conflict Between the Kighth Circuit and the Sixth Circuit On
This Issue.

Contrary to Mr. Norris’s contention, there is no conflict whatsoever between

the decision of the Eighth Circuit in this case and the decision of the Sixth Circuit

co

in /n ve McDonald, 514 ¥.3d 539 (6th Cir. 2008). First, the Eighth Circuit did no
find that 28 U.S.C. § 224¢‘da)(1) is not encompassed by the “requirements’” of 28
U.S.C. § 2244(b)(4). Rather, following this Court’s holding in Day, the Lighth
Circuit correctly found that a district court has the diserction, but no obligation, to
consider a statute of hmitations defense sua sponte when the state fails to raise 1.
The decision of the Sixth Circuit. in McDonald is in no way to the contrary. Rather,
the opinion stands for the distinct proposition that a circuit court may not consider
the statute of limitations when deciding whether a petition has met the
requirements for receiving permission to file a second petition under §
2244(p)(3)KKC). McDonald, 514 F.3d at 543-544

In McDonaid, the petitioner filed an application for permission to file a
successive petition in the Sixth Circuit.’ In opposition to the application, the
government argued that the court should dismiss the application as time barred
under 28 U.S.C. § 2244(DC)(D). The Sixth Circuit found that issues regarding

compliance with the statute of limitations were “not within the purview of the court

"In addition to the fact that the holding in MeMona/d docs not support his “mandatory” reading of
the AEDPA statute and an artificial conflict with the Sixth Circuit, tae petitioner in McDonald was
in a procedurally cifferent position than Mr. Sasser. While Mr. Sasser is on an appeal from the
reversal of a demal of a success:ve habeas petition. the petitioner in McDona/d was before the Sixth
Circuit cn a motion for authorization to file

7

of appeals’ consideration of applications requesting authorization to file a second or
successive habeas corpus petition,” McDonald at 543, and that the matter 1s left to
the district courts to decide in the first instance.'" In no sense did the Sixth Circuit
find that a state may not forfeit the statute of limitations defense by thereafter
failing to raise if. in the district court.

C. There Is No Disarray in the Lower Federal Courts Regarding

“AEDPA's Distribution of Responsibilities of the Courts and of the
Parties under 2244(b) and about the Scope of 2244(b){4)”

Petitioner Norris cites to a number of cases from circuits around the country,
contending that they present indicia of confusion regarding the interpretation and
application of 28 U.S.C. § 2244(d)(1) in second petition cases. Pet. at 21-22.
However, there is nothing reflecting disarray regarding 28 U.S.C. § 2244(d)(1) in
the cases cited by Mr. Norris from the Third, Fifth, Seventh, Ninth and Tenth
Circuits, which in dicta, all unremarkably state that a successive petition must fall
into one of the categories enunciated by 28 U.S.C. § 2244(b(2) before a district court
can consider the merits of the petition, and do not bear at ali on the issue of
whether Mr. Norris can waive the statute of l:mitations defense by raising 1t for the

$f noe i ence ae
first time on appeal.

'’Notably, the court based its decision in part on the fact that, when considering such applications, an
appellate court does not yet have a developed record before :t and therefore cannot resolve fact bound
issues that often arise regarding the appheation of the statute of limitations, such as the question of
equitable tolling. /¢ This reasoming highlights the impropriety of allowing a state to raise the issue
for the first time before the appellate court without allowing the petutioner to develop a record before
the district court

Sz ’ A . Dod one (9) = .
‘See Goldblum v. Alem, 310 F.3d 204 (3d Cir. 2007) (discussing whether to apply AEDPA or pre:
AEDPA abuse of wrt doctrine to substantive standards for filing successive petitions); Brown +
*n9O ra . f e —
Lensing, 171 F 3d 1032 (Sth Cir 1999) (dismissing appeal from denial of a successive petition based

on the fact that 1t did not satisfy § 2244(b)2)(A)), Bennet v. United States. 119 F.3d 468 (7th Cu

The decisions of the Eleventh and Fifth Circuits in Jn re Ail] 437 F.3d 1080

(11th Cir. 2006) and Jn re Lewis, 484 F.3d 793 (5th Cir. 2007), are ever more
irrelevant. Both are cases in which the circuit court denied authorization to file for
second or successive petitions based on statute of limitations issues. While those
opinions might be in tension with McDonald, supra, the issue they address is not
present in this case and so consideration of it will have to wait until the proper case
comes before the Court. Mr. Sasser’s case was before the Kighth Circuit on appeal
after authorization had been granted and the district court had denied the petition,
and thus posed a different issue, again, whether Mr. Norris forfeited the statute of
limitations defense by not properly raising it until on appeal. In short, there is no
disarray for this Court to resolve and certainly none that this Court could address
via the case at bar
D. The Eighth Circuit Considered and Resolved Against Petitioner Norris
the Statute of Limitations Issue, and Language Regarding Its Ability
To Raise the Statute of Limitations Sua Sponte is Dicta and Irrelevant
to the Decision in Mr. Sasser’s Case.
While not stated as a Question Presented, Mr. Norris makes a second
argument to the Court, that the Eighth Circuit’s opinion held that the “discretion to

consider the statute of imitations defense sua sponte does not extend to the

a (denying of a federal prisoner’s request to file a third motion for post-conviction relief under 28
S. § 2255, based on a fin ding that newly discovered evidence insuffi cient to establish innocence by

ries and convincing evidence), United States v. Villa-Gonzalez, 208 F.3d 1160 (denial of a federal
prisoner's appeal following dismissal of an authorized successive § 2255 motion price Heep
application of pre: AEDPA versus AEDPA standards and the application of § 2244(b)4) in § 2255
proceedings’: Ochea v. Sirmons, 485 F 3d 538 (0th Cir. 2007) (authorizing successive phe ta
containing Atkins claim, finding no requirement of a prehminary merits review prior to authorization
on an Avtins claim)

appellate level,” in conflict with this Court’s decision in Day, and the Seventh
Circuit's holdings in Cotten v. Grisby, 456 F.3d 727 (7th Cir. 2006), and Jones v.
Hulick, 449 F.3d 784 (7th Cir. 2006). However, this statement by the Eighth
Circuit 1s pure dicta, for it considered the statute of limitations issue not sua
sponte, but rather at the behest of Mr. Norris, and not on a blank slate but in the
role of an appellate court reviewing the district court’s decision not to address the
question sua sponte for an abuse of discretion. Again, certiorari should be denied as
dicta 1s not Che definitive position of a court and makes Mr. Sasser’s case a poor
vehicle for the question posed as it was not material to the outcome of his case

Black's Law Dictionary (8th ed. 2004), defines sua sponte as “without
prompting or suggestion” or “on its own motion.” Black's Law Dictionary (8th ed
2004) (on-line edition). While the Eighth Circuit noted in passing that it lacks
discretion to sua sponte raise a statute of limitations defense on behalf of the state,
that determination is irrelevant to the decision in Mr. Sasser’s case and is not the
determination which the Eighth Circuit reached with regards to the actual record of
Mr. Sasser’s case

Mr. Norris briefed the statute of limitations issue in his initial brief in the
Eighth Circuit. Sasser v. Norris, No. 07-2385, Brief for Appellee at 16-29 (8th Cir.
Feb. 27, 2005). Mr. Sasser responded to Mr. Norris's statute of limitations
arguments as best he could on an undeveloped record in his reply brief vefore that
court. Sasser v. Norris, No. 07-2385, Appellant’s Reply Brief at 7°31 (8th Cir. Aug.

11, 2008). The issue was also aireé at length at oral argument. Sasser v. Norris,

No. 07-2385, Oral Argument Transcript at 7°31 (8th Cir. Sept. 25, 2008)."°
Ultimately the Eighth Circuit decided, “[blecause the government did not timely
assert the statute of limitations defense, the statute of limitations defense is
forfeited and we will not address the defense any further.” Pet’r App. at 15."

Mr. Norris argues that statement of the Kighth Circuit in dicta, that it did
not have discretion to consider the statute of limitations issue sua sponte,
represents a split from the holdings of the Seventh Circuit. However, neither case
from the Seventh Circuit cited by Petztioner Norris as support for a claimed cireuit
split conflicts with the actual holding in this case. In Cotton v. Grisby, 456 F.3d
727 (7th Cir. 2006), the petitioner brought his initial habeas petition sixteen years
after his conviction for attempted robbery. On appeal to the Seventh Circuit, the
state raised the untimeliness of the petition for the first time. The court found that
it was “under no obligation to enforce a state’s forfeiture or a petitioner’s procedural
failings.” Jd. at 731. As in Mr. Sasser’s case, the court was not raising the issue sua

“Mr. Norris also raised his statute of limitations argument in a petition for rehearing en banc, which
was demed by the Eighth Circuit. Sasser v. Norris, Ne. 07-2385, Order (8th Cir. Apr. 14, 2609).

Petitioner Norris contends that the Eighth Circuit’s holding is “especially troubling,” speculating
that the district court must have felt constrained by the Eighth Circuit's remand order and that is
why the district court did not address the statute of limitations, “despite the fact that it was raised.”
See Pet. at 24,n 2 This speculation is grossly misleading and inaccurate Mr. Norris did not
properly raise the timeliness of Mr. Suasser’s petition. And in any event, the district court clearly did
not feel constrained by the Eighth Circuit’s remand order

The remand order directed the district court to address two issues’ (1) whether Mr. Sasser was
mentally retarded: and (2) whether pursuant to Atkins v. Virgina, 536 U.S. 304 (2002), the Exghth
Amendment pronibsted his execution. Sasser v. Norris, No. 00-4036, Doe. 37, Judgment, at 1 (8th
Cir. Aug. 21, 2003). ‘The district court however, quickly added a third issue, asking the parties tc
address whether Mr. Sasser had defaulted his Atk/ns claim by not raising it mn the state courts under
a pre’Atkins state mental retardation statute, and indeed ultimately decided the case, wrongly, on
that basis. Sasser v. Norris, No. 00-4036, Doc. 40, Scheduling Order, at 1 (W.D. Ark. Aug. 29, 2003).

Y/

FAY

sponte, but rather in response to the State’s attempt to raise it for the first time on
appeal. And, just hke the Eighth Circuit, the Seventh Circuit found that,

it was the state's duty lo raise those defenses in the district court, and

it has provided us no reason to excuse its failure to do so. ... The

period of limitations set out in 28 U.S.C. § 2244(b)(3) is not

jurisdictional, and thus we are not bound to enforce it against a

petitioner. See Day, 126 S. Ct. at 1681. In this case, it would be

inappropriate for us to reach a timeliness argument that the state did

not raise in its response in the district court, and which did not form

the basis for the district court's ruling
Cotton v. (rrisby, 456 F.3d at 731

In Jones v. Hulick, 449 F.3d 784 (7th Cir. 2006), the Seventh Circuit did
consider a statute of limitations argument made for the first time on appeal
However, it did so because of the particular circumstances of the case before it. Jad.
at 787. In the district court, the petition had been dismissed on exhaustion grounds
before the State had an opportunity to file an answer, and so, rather than forfeiting
the issue, the state had actually raised it at the carliest possible opportunity. Jd.
The instant case, presenting the enurely different scenario in which the state failed
to raise the defense despite filing an answer and having a lengthy opportunity to
amend it, is not in conflict

Of course, Petitioner Norris is correct that this Court in Day held that
district courts can raise statute of limitations issues sua sponte. See Day, 547 U.S
at 209. ‘The Kighth Circuit’s decision is not in conflict with Day. Day addressed the

discretion of the district court in addressing statute of limitations issue sua sponte

and docs not address whether the same principles apply on appeal when a district

court has declined to raise the issue sua sponte. The Eighth Circuit did not hold
otherwise, but rather refused to overlook the State's forfeiture on appeal
EK. Mr. Sasser’s Second Petition Was Timely.

In any event, Mr. Sasser’s second petition was timely filed and thus this case

presents a poor vehicle for deciding issues regarding the interpretation or the duties

and responsibilities of the federal courts under 28 U.S. § 2244(b)(4). Mr. Norris
admitted in his Brief before the Eighth Circuit that Mr. Sasser filed his Matton to
Remand,” seeking relief under Afkins, within the one-year window. Additionally,
Mr. Sasser's Supplementa! Motion for Remand, which alternatively requested
authorization to file a successive petition, was filed two days after his Motion to
Remand, on June 18, 2003, and also within one year of the issuance of the Ath
decision. Thus, Mr. Sasser’s Atkins claim clearly was timely filed

A motion for authorization is the first pleading in a successive habeas action,
and it is the equivalent of a habeas petition filed in the district court in a first
petition situation. In the Kighth Circuit, local rules eall a motion for authorization
in “application for second or successive habeas corpus relief.” See 8th Cir. R
22(B)(a). And, those rules require the motion for authorization to include “the

grounds for rehef,’ 8tn Cor. R. 22(B)(a)(1), just hke an application filed in the

18 : - Y ~ )
Mr. Sasser's initial motion before the Kighth Circuit was styled a ‘Motion to Remand and Brief in
Support,” Sasser v. Norris, No. 02°3103, (8th Cir. July 16, 2003); two ns after tne Mr. Sasser filed
supplemental motion to remand, and alternatively a motion to file a second or successive petition,

Sasser v. Norris, No.02°3.03, Appellants Supplemental Motion to Remand to the District Court or in
the Alternative Motion to File a Second or Success:ve Petition (8th Cir. July 18. 2003). The district
court and the Fighth Circuit have treated Mr. Sasser’s application as an application for permission ti

file a successive petition

7m

district court, SECTION 2254 RULES 2(c) (stating that a habeas application should
contain “the grounds for relief’). ‘he Seventh Circuit, too, has expressly held that
motions for authorization are the equivalent of postconviction applications for the
purpose of applying the AEDPA. See Bennett v. United States, 119 F.3d 468, 471
(7th Cir. 1997) (holding that a motion for leave to file a second or successive
application is itself an application for the purposes of applying the AEDPA, and
that denial of the motion for leave represents an adjudication of the merits of the
underlying application).

Numerous courts across the countrv have recognized that a motion for
authorization satisfies the statute of limitations. See Buchanan v. Lamarque, 121
Fed App’x 303, 316 (LOth Cir. 2005) (unpublished) (holding that a “motion for leave
to file’ a successive petition will satisfy the statute of limitations if filed within the
one-year limitations period); Outlaw v. Sternes, 233 F.3d 453, 456 (7th Cir. 2000)
(characterizing a motion for authorization as an “application” for the purposes of
applying the limitations period, and hoid:ng that the statute of limitations 1s
satisfied 1fa motion for authorization is filed within the lumitations period);
Coleman v. United States, 106 F.3d 339, 341 (10th Cir. 1997) (stating that a
“petition or motion” should be “filed in this court for the purposes of the limitations
periods”); Lauano v. United States, 95 F 3d 119, 123 (2d Civ. 1996) (stating that the

motion for authorization “to this Court” “could be considered in determining the

applicant’s compliance with the apphicable one-year hmitations period”), See also In

re Lewis, 484 F 3d 793 (Sth Cir. 2007) (applying the statute of a limitations to a

motion for authorization to file a successive petition, and holding that a timely
motion would be an “application” sufficient to satisfy the statute); Jn re Daniels,
2001 U.S. App. LEXIS 27453 (D.C, Cir.) (unpublished) (applying “the one-year
statute of limitations imposed by the Antiterrorism and Effective Death Penalty
Act” to a “motion for leave to file a second or successive motion under 28 U.S.C. §
9255"). Cf Whab v. United States, 408 F.3d 116, 120 (2d Cir. 2005) (stating that
“the moment of filing” for a second or successive petition occurs when “the
petitioner files directly in the district court or first files an application for
gatekeeping approval in the court of appea §)

This result is fully consistent with the policies underlying the AEDPA’s
statute of limitations.’ The purpose of the limitations period is to promote the
finality of criminal convictions and sentences by ensuring that a petitioner's
“claims” are brought before a court within the one-year window, Sce Mayle v. Feliu

545 U.S. 644, 662 (2005). In moving for authorization, a petitioner must place all

YY, 4 : anak ‘ "ny
The policy arguments advanced against this interpretation ave unpersuasive. The argument that a
} . b & } | b

petitioner can and should be requireé to file an authorized petition in the district court within th
one-year limitations period because the AL DPA requires that the authorization process be completed
within just thirty days blinks reahty. Courts have unif rmly held that the thirty Jay limitation on

the authorization process is “horatory or advisory rather than mandatory.” /n re McDonald, 514 F 4d

Ma
39, 542 0.2 (6th Cur. 2008

In practice, especially in dca penalty cases, where the stakes are high and the issues are more
complex, the authorizauen | frequently takes many months to compicte. Indeed, in this case
it was nearly mine months after Mr Sasse filed his Motion to Remand (June 16, 2003) that the

mandate finally tssued (March 9, 2004) to allow the distiet court to consider his Atdins claim
Nearly seven of these months of delay resulted from the State's filing of a motion for reconsideratiot
of the Eight Circuit’s untual order. Were a motion for authorization itself insufficient to sausfy the
statute of limitations, a petitioner gould file his applicauion for authomvation a month or more befor.
the expiration of the limitations per id and yet still be deemed time-barred if the court fails to rule |
kis application within the statutory time period, or if the court's rul.ag as challengec by the
respondent

his “grounds for rehef” before the court, see e.g. 8th Cir. R. 22Bla)(1), and thus this
purpose is fully accomplished by the filing of the motion.

As both Mr. Sasser’s motion for remand and his supplemental motion to
remand, or in the alternative to file a second or successive petition were both filed
in the Eighth Circuit within one year of this Court's decision in Atkins v. Virginia,
536 U.S. 304 (2002), his petition was timely filed, and certiorari in this case should
be denied on this ground also

CONCLUSION
For these reasons, the Petition for Writ of Certiorari should be denied

Respectfully submitted,

Who

Séott Braden*

Deborah Anne Czuba

Assistant Federal Defenders

Office of the Federal Public Defender
Eastern and Western Districts of Arkansas
1401 West Capitol, Suite 490

Little Rock, Arkans&s 72201

(501) 324-6114

Appointed Counsel for Respondent Andrew Sasser

*Counsel of Record

September 11, 2009

No. 09°45

In the
SUPREME COURT OF THE UNITED STATES

Octoper Term. 2009

Larry Norris, Director
Arkansas Department of Correction,
Petitioner

Andrew Sasser
he spond ne

CERTIFICATE OF SERVIC

I certify that I have served upon the attorney for the Petitioner a copy of the
Brief in Opposition to the Petitioner for Writ of Certiorari and a copy of the Motion
for Leave to Proceed In Forma Pauperis in this action. Service was made by
Federal xpress, postage prepaid, to Kelly Hil, Office of the Attorney General, 323
Center Street, Suite 200, Little Rock, Arkansas 72201 2610

Executed on September 11, 2009

a a ugbo—

Scott Braden’
Deborah Anne C2uba
Assistant }'ederal Defenders
Office of the Federal Public Defender
Eastern and Western fihiia 6 of Arkansas
1401 West Capitol, Suite 490
Little Rock, “= insas 72201
) 324-6]

*Counsel of Record Appointed Counsel for Respondent Andrew Sasser

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_0740%3A2. Public record. Not legal advice.