Amicus Curiae Brief — California v. Park

AUG & nn | No. 99-1971

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fe.

IN THE

Supreme Court of the United States

THE PEOPLE OF THE STATE OF CALIFORNIA and

ATTORNEY GENERAL OF THE STATE OF CALIFORNIA,

Petitioners,

VS.

DON SOON PARK,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

MOTION FOR LEAVE TO FILE AND

BRIEF AMICUS CURIAE OF THE

CRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF THE PETITION FOR

WRIT OF CERTIORARI

SY

KENT S. SCHEIDEGGER

Attorney of Record

Criminal Justice Legal Fdn.

2131 L Street

Sacramento, CA 95816

Phone: (916) 446-0345

Fax: (916) 446-1194

E-mail: cjlf@cjlf.org

Attorney for Amicus Curiae

Criminal Justice Legal Foundation

PO DAE ent

hes. Sh Seay wereld

QUESTIONS PRESENTED

Does a state procedural default rule lack independence from

federal law because it makes an exception for “fundamental

error,” when “fundamental,” as defined by state law, excludes

most federal constitutional claims?

i

IN THE

Supreme Court of the United States

THE PEOPLE OF THE STATE OF CALIFORNIA and

ATTORNEY GENERAL OF THE STATE OF CALIFORNIA,

Petitioners,

VS.

DON SOON PARK,

Respondent.

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MOTION OF AMICUS CURIAE FOR LEAVE

TO FILE BRIEF IN SUPPORT OF THE

PETITION FOR WRIT OF CERTIORARI

ee

Pursuant to Supreme Court Rule 37.2, the Criminal Justice

Legal Foundation' respectfully moves for leave to file the

accompanying brief amicus curiae in support of the petition in

this case. Counsel for petitioner has consented, but counsel for

respondent has withheld consent.

INTEREST OF AMICUS CURIAE

The Criminal Justice Legal Foundation (CJLF) is a non-

profit California corporation organized to participate in

litigation relating to the criminal justice system as it affects the

public interest. CJLF seeks to bring the due process protection

1. This brief was written entirely by counsel for amicus, as listed on the

cover, and not by counsel for any party. No outside contributions were

made to the preparation or submission of this brief.

iV

of the accused into balance with the rights of the victim and of

society to rapid, efficient and reliable determination of guilt and

swift execution of punishment.

California’s procedural default rules are necessary for

efficient and timely resolution of an appellant’s claims. The

Ninth Circuit’s refusal to respect these rules in the present case

has set a precedent which will needlessly delay enforcement of

the state’s death penalty, reducing its deterrent effect. These

delays are contrary to the rights of victims and society which

CJLF was formed to advance.

August, 2000

Respectfully submitted,

KENT S. SCHEIDEGGER

Attorney for Amicus Curiae

Criminal Justice Legal Foundation

TABLE OF CONTENTS

SIE is ond he dewkatkysaeerass ceekeues i

NE SONG ih ov0 Ses eacavecdiasowe tens ill

rr I ON oo ns cece ciaswaweeeeieenae ill

pf PR CO rer rere ree TT re vii

re I NE i. oo 5s an. fog kad sree eeayaeees l

ES COT TE BE GI og 5s aicce ee hoch haere l

kg Pere TT eee tr ree 2

PEG eny eer Peer r er rere ee eT ee eS a 3

I

California does not have, and has never had, an exception

Sor afl COMSTIMIGNA GIMIE 8 nw ks ib ee ce sien as 3

We ee ee ee eee 4

B. The Waltreus reconsideration rule ............. 8

Cy PT Wins kk oo 5es eee oe 9

Sf PPP eR ee eee Ty 13

II

The weight of authority holds that similar “fundamental

error” or “plain error” exceptions do not negate the

independence of state procedural default rules ....... 14

(v)

vi

The Ninth Circuit’s severe approach to procedural default

creates a perverse incentive and will further obstruct an

already clogged system of review ................. 17

Ne er ae ae cae ee ee 20

Vii

TABLE OF AUTHORITIES

Cases

Ake v. Oklahoma, 470 U. S. 68, 84 L. Ed. 2d 53,

Por Ge er eee 6 65 ks oe 3

Arizona v. Fulminante, 499 U. S. 279, 113 L. Ed. 2d 302,

Eee es RE ko ecko ie eee 5, 10

Boykin v. Alabama, 395 U. S. 238, 23 L. Ed. 2d 274,

Brown v. Allen, 344 U. S. 443, 97 L. Ed. 469,

FR AA: BE CTTEE Shas PLES eee es Ci Ee 18

Calderon v. Fields, 523 U. S. 1132, 146 L. Ed. 2d 962,

SUMED iis hain hock a eine eee ee 19

Chapman v. California, 386 U. S. 18, 17 L. Ed. 2d 705,

Oe ak Gale SPEED ovo ca kk ribet ee eee 11

Coleman v. Thompson, 501 U. S. 722, 115 L. Ed. 2d 640,

PEE Oh We PERE a kk nec cneuhawsed eee 16

Custis v. United States, 511 U. S. 485, 128 L. Ed. 2d 517,

Fer ae ee STO LOE 6g vn oR oko he eee eee 5

Engle v. Isaac, 456 U. S. 107, 71 L. Ed. 2d 783,

Se Oe Se BED. 5 i's hd eae abides ene 16

Federal Housing Administration v. Darlington, Inc.,

358 U. S. 84, 3 L. Ed. 2d 132, 79 S. Ct. 141 (1958) ... 13

Fields v. Calderon, 125 F. 3d 757 (CA9 1997) ....... 8, 18

Gutierrez v. Moriarty, 922 F. 2d 1464 (CA10 1991) .. 15, 16

Hornbuckle v. Groose, 106 F. 3d 253 (CA8 1997) ...... 17

In re Bell, 19 Cal. 2d 488, 122 P. 2d 22 (1942) .......... 4

Pf nn

Vili

In re Clark, 5 Cal. 4th 750, 21 Cal. Rptr. 2d 509,

ee oe Se x caw ch nds da beewens esses 9, 13

In re Coughlin, 16 Cal. 3d 52, 127 Cal. Rptr. 337,

oe kg. * ener re aoe eee 8,9

In re Dixon, 41 Cal. 2d 756, 264 P. 2d 513 (1953) ... 2, 4,5

In re Harris, 5 Cal. 4th 813, 21 Cal. Rptr. 2d 373,

ee et: ne ee 6, 9, 10, 11, 12, 13

In re Jackson, 61 Cal. 2d 500, 39 Cal. Rptr. 220,

ee ee ek ca rea bea kes eae eens 8

In re James, 38 Cal. 2d 302, 240 P. 2d 596 (1952) ....... 5

In re Lessard, 62 Cal. 2d 497, 42 Cal. Rptr. 583,

Ss ee EE oad Cbs bee arevewesiokeeen 6

In re Lopez, 2 Cal. 3d 141, 84 Cal. Rptr. 361,

Gai FTE ia Kia coe sea ake aa ries 6

In re Robbins, 18 Cal. 4th 770, 77 Cal. Rptr. 2d 153,

Fat. ed ERD 5S cb be cdeescds ie esaees 2, 13, 14

In re Ronald E., 19 Cal. 3d 315, 137 Cal. Rptr. 781,

SEE © a REED, 5 keudacadwods cn vedte renews 6,7

In re Shipp, 62 Cal. 2d 547, 43 Cal. Rptr. 3,

og eR S| errr ea one ean 6,7

In re Sterling, 63 Cal. 2d 486, 47 Cal. Rptr. 205,

ee ee gl Bere nrir pee nr es pee 6

In re Wallace, 24 Cal. 2d 933 (1944) ...............4.. 4

In re Waltreus, 62 Cal. 2d 218, 42 Cal. Rptr. 9,

SET Fe Se ec kkk kee a 8

In re Winchester, 53 Cal. 2d 528, 2 Cal. Rptr. 296,

ce i. re rs ey ny 8

NE EE NT ETON MNT me

ix

Johnson v. United States, 520 U. S. 461,

137 L. Ed. 2d 718, 1175S. Ct. 1544 (1997) .......... 1]

Jones v. United States, 527 U. S. 373, 144 L. Ed. 2d 370,

SEF Oi Sh) MEE oo bes ko Sok onde cE. 12, 13

Knuckles v. Rogers, No. 92-3208, 1993 WL 11874

PR Ee UE ee ee 16

Kotteakos v. United States, 328 U. S. 750,

90 L. Ed. 1557, 66 S. Ct. 1239 EE Sieg 11

Mapp v. Ohio, 367 U. S. 643, 6 L. Ed. 2d 1081,

EO OME od fon eae roi se ee 6

McCown v. Callahan, 726 F. 2d 1 (CAl 1964) ......... 18

Murray v. Carrier, 477 U. S. 478, 91 L. Ed. 2d 397,

WOW Mes BOOP ENOU soo io vi bk vieaccecnc.... 4,10

NAACP v. Alabama ex rel. Flowers, 377 U. S. 288,

12 L. Ed. 2d 325, 84S. Ct. 1302 SP eae 17

O’Dell v. Netherland, 95 F. 3d 1214 (CA4 1996) ....... 16

Park v. California, 202 F. 3d 1146

EO RS re ine eri 1,2, 3, 13, 18

Prihoda v. McCaughtry, 910 F. 2d 1379 (CA7 1990) .... 19

Puleio v. Vose, 830 F. 3d 1197 (CAI a ne 16

Rose v. Lundy, 455 U. S. 509, 71 L. Ed. 2d 379,

vo ee 5 es a ae a 4

Roy v. Coxon, 907 F. 2d 385 (CA2 cn, ER ee 16

Saffle v. Parks, 494 U. S. 484, 108 L. Ed. 2d 415,

en i, ee a 6

Scott v. Anderson, 58 F. Supp. 2d 767 (ND Ohio 1998) .. 16

x

Scott v. Mitchell, 209 F. 3d 854 (CA6 2000) .......... 16

Simpson vy. Matesanz, 175 F. 3d 200 (CAI 1999) ....... 16

Stone v. Powell, 428 U. S. 465, 49 L. Ed. 2d 1067,

a Ree NT RE 4 cd Ke ha cee ees a ced seh res 6

Strickland v. Washington, 466 U. S. 668,

80 L.. Ed. 2d 674, 104 S. Ct. 2052 (1984) ........... 11

Sunal v. Large, 332 U. S. 174, 91 L. Ed. 1982,

Re ts Sk ED is bo bo kss0o 0d ba ke bens cn Cakes 8

Toney v. Gammon, 79 F. 3d 693 (CA8 1996) .......... 17

Tumey v. Ohio, 273 U.S. 510, 71 L. Ed. 749,

ee i ee ET CEE 3054s CEN koa ebas ROA eT KOS 10

United States v. Morgan, 346 U. S. 502, 98 L. Ed. 248,

ro Eg) eee errr rer 5

United States v. Olano, 507 U. S. 725,

123 L.-Ed. 2d 508, 113 S. Ct. 1770 (1993) ....... 11, 12

Willis v. Aiken, 8 F. 3d 556 (CA7 1993)........ 14, 15, 17

Rules of Court

OCIS TE TENE Be oo 0 ik ba ee he cha ek esae caries 17

Miscellaneous

E41 Come, Rae. BA FeO CSI e ed «<6 veh ace cccensssacces 20

Judicial Council of California, Court Statistics Report

a. RR a Aire ee mie py gent avert Pa ye 20

IN THE

Supreme Court of the United States

THE PEOPLE OF THE STATE OF CALIFORNIA and

ATTORNEY GENERAL OF THE STATE OF CALIFORNIA,

Petitioners,

VS.

DON SOON PaRK,

Respondent.

BRIEF AMICUS CURIAE OF THE

CRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF THE PETITION FOR

WRIT OF CERTIORARI

——S

SUMMARY OF FACTS AND CASE

On August 20, 1991, Don Soon Park and two accomplices

attempted to rob Munho Kim in the garage of his residence.

The two accomplices were caught while fleeing the scene, but

Park, the getaway car driver, escaped. Park v. California, 202

F. 3d 1146, 1148 (CA9 2000), App. to Pet. for Cert. 39a-40a.

A year later, Park threatened to blow up the store of Keum Kim

and kill her and her family unless she paid him for a debt owed

by her son and for alleged defamation by her granddaughter.

The store was later destroyed by a pipe bomb. Jbid. Park was

convicted of conspiracy, burglary, and attempted robbery

against Munho Kim and making terrorist threats against Keum

Kim, but not of the actual bombing.

Park appealed, claiming only improper joinder of the two

cases, and the judgment was affirmed. /d., at 1149, App. to Pet.

for Cert. 41a. After direct appeal was final, Park filed a habeas

corpus petition in the California Supreme Court, making three

new claims, all of which were based on information available

at the time of the appeal and which could have been made then.

Ibid.

The California Supreme Court, as its usual practice, denied

the petition with a citation to Jn re Dixon, 41 Cal. 2d 756, 759,

264 P. 2d 513 (1953). That citation is, in California practice, an

unmistakable reliance on a state procedural default rule,

specifically that claims that could have been raised on appeal

but were not will generally not be considered on habeas.

On federal habeas, the District Court denied the joinder

claim on the merits and the other three as procedurally de-

faulted. Park, supra, 202 F. 3d, at 1148, App. to Pet. for Cert.

38a. The Court of Appeals reversed the procedural default

ruling. It held that the “fundamental constitutional error”

exception to the Dixon rule rendered that rule not independent

of federal law. It interpreted /n re Robbins, 18 Cal. 4th 770,

959 P. 2d 311 (1998) as indicating that, prior to Robbins, the

California Supreme Court “necessarily made an antecedent

ruling on federal law before applying the Dixon bar. . . by

concluding that no fundamental federal constitutional error had

occurred.” Park, 202 F. 3d, at 1153, App. to Pet. for Cert. 50a

(emphasis added).

SUMMARY OF ARGUMENT

The Ninth Circuit’s assertion that California courts, in the

process of applying the procedural default rule, necessarily

resolved the merits of any federal constitutional claim, is clearly

mistaken. Nothing in the case cited for this proposition says or

implies that, and the prior case law is unambiguously to the

contrary.

The relation between “fundamental error” or “plain error”

exceptions to default rules and the independence of such rules

requires clarification from this Court. The Seventh Circuit has

expressly requested clarification in this area. The circuits are

divided on the point, although the clear weight of authority is

contrary to the Ninth Circuit’s position.

ARGUMENT

“No good deed goes unpunished” is the theme of the Ninth

Circuit’s decision in this case, and in other cases negating

California’s procedural default rules. Because California has

been generous to the indigent, the illiterate, the unrepresented,

and others presenting particularly worthy claims for relief, the

state must now forfeit its entire body of rules governing

procedural default on appeal. Claims never properly presented

to state courts by defendants who were provided counsel, ample

opportunity, and clear rules on when and how to present them,

must now be litigated in federal court, when such claims would

have been terminated in less generous states. This perverse

result is contrary to the letter and spirit of the “adequate and

independent state grounds” doctrine.

I. California does not have, and has never had,

an exception for all constitutional claims.

The Ninth Circuit’s decision is based on a patently false

premise. The court interpreted a statement in a California

Supreme Court decision as holding that in applying “the

constitutional error exception” to the procedural default rule,

the state habeas court “necessarily made an antecedent ruling on

the federal law... .” Park v. California, 202 F.3d 1 146, 1153

(CA9 2000), App. to Pet. for Cert. 50a.' An elementary survey

of California habeas law reveals the error of this statement.

1. In other words, the Court of Appeals equated California’s rule with the

Oklahoma rule involved in Ake v. Oklahoma, 470 U. S. 68, 75 (1985).

In Rose v. Lundy, 455 U. S. 509, 544 (1982) (dissenting

opinion), Justice Stevens proposed that a small subset of

constitutional claims be deemed so fundamental that they be

undefaultable. “Errors of this kind justify collateral relief. . .

even though they may not have been preserved properly ... .”

The “category cannot be defined precisely,” but it includes

mob-dominated trials, known perjury, and brutally extorted

confessions. /bid. This exception has not been adopted on the

federal level, but one along these lines has been adopted in

California. The Ninth Circuit’s inability, or unwillingness, to

see the distinction between “fundamental,” in this sense, and

“constitutional” is the root of its error.

A. The Dixon Default Rule.

California’s basic rule on availability of habeas is simple.

It was clearly stated by Justice Traynor over half a century ago,

in the context of a federal due process claim. “A violation of

the defendant’s constitutional rights during the trial leading to

his conviction is ground for attack on the judgment in a habeas

corpus proceeding if the petitioner has no other adequate

remedy to test the constitutionality of the proceedings resulting

in his conviction (/n re Bell, 19 Cal. 2d 488, 494[, 122 P. 2d 22,

26 (1942)]....).” Inre Wallace, 24 Cal. 2d 933, 938, 152

P.2d 1,4 (1944) (emphasis added, additional citations omitted).

The italicized clause encompasses the procedural default rule.

On constitutional questions, “the court may in its discretion

refuse to grant the writ if the remedy by appeal is not ex-

hausted.” Bell, 19 Cal. 2d, at 495, 122 P. 2d, at 27. This

discretionary basis for the procedural default rule is consistent

with the federal counterpart. Cf. Murray v. Carrier, 477 U.S.

478, 497 (1986) (“means of channeling the discretion of federal

habeas courts’’).

In re Dixon, 41 Cal. 2d 756, 759, 264 P. 2d 513, 514 (1953)

did not create the procedural default rule but merely applied

settled law, holding “in the absence of special circumstances

constituting an excuse .. . , the writ will not lie where the

claimed errors could have been, but were not, raised upon a

timely appeal ....” It was already settled by that time that the

tule applied to constitutional claims generally. See id., at 761,

264 P. 2d, at 515. The Dixon court noted a possible exception

for “fundamental constitutional rights,” id., at 760, 264 P. 2d,

at 515 (emphasis added), but it did not need to dwell on the

fundamentai/nonfundamental distinction because the factual

basis of Dixon’s claims had already been resolved against him.

Id., at 760-762, 264 P. 2d, at 515-516.

Park maintained in the Court of Appeals that the Dixon

Court denied the claim on the merits, but a close examination

reveals that the court did not itself resolve any disputed

question of law or fact on the underlying claim. Instead, the

Court noted that the facts had been previously adjudicated, id.,

at 761, 264 P. 2d, at 515-516, and that because of the default

Dixon was not entitled to reconsideration of the facts. Id., at

762, 264 P. 2d, at 516. The “difficult questions of law”

presented by petitioner’s version of the facts, ibid., therefore did

not need to be addressed. This is a ruling in the nature of

collateral estoppel rather than de novo adjudication of the

“merits” as that term is normally understood.

The “fundamental” exception had been invoked the year

before in Jn re James, 38 Cal. 2d 302, 240 P. 2d 596 (1952).

This was a claim of complete denial of counsel to an indigent

murder defendant. See id., at 307-308, 240 P. 2d, at 599-600.

The court excused the failure to appeal by this borderline

literate defendant based on the fundamental nature of the right

to counsel. See id., at 309-310, 240 P. 2d, at 600-601. The

California courts’ extra solicitude for denial-of-counsel claims,

above that for other constitutional claims, is entirely in keeping

with this Court’s jurisprudence. See United States v. Morgan,

346 U.S. 502, 512 (1954) (common law coram nobis for denial

of counsel claims); Arizona v. Fulminante, 499 U. S. 279, 309

(1991) (included in small set of errors deemed “structural” and

never harmless); Custis v. United States, 511 U. S. 485, 496

(1994) (violation of rule of Gideon v. Wainwright, 372 U. S.

335 (1963), a “unique constitutional defect,” is only claim

cognizable in attack on prior at sentencing for new offense);

Saffle v. Parks, 494 U.S. 484, 495 (1990) (Gideon as exemplar

of rule qualifying for second exception to rule of Teague v.

Lane, 489 U.S. 288 (1989)). To the same effect is Jn re Lopez,

2 Cal. 3d 141, 151, 465 P. 2d 257, 263 (1970), noting the

special status of Gideon claims. By no stretch of the imagina-

tion does this appropriate generosity for Gideon-type claims

translate to a waiver of default for all constitutional claims.

The 1960s saw the creation of a number of nonfundamental

federal constitutional rules of criminal procedure. The first and

foremost of these is Map? v. Ohio, 367 U.S. 643 (1961), arule

which actually detracts from, rather than enhances, the accuracy

of the result of the trial. See Stone v. Powell, 428 U.S. 465,

489-491 (1976). In re Lessard, 62 Cal. 2d 497, 399 P. 2d 39

(1965) presented the question of whether claims under the

exclusionary rule, now constitutionalized and applicable to the

states, would be considered despite default. The court held that

such claims would be barred if they were defaulted at trial or on

appeal. /d., at 503, 399 P. 2d, at 43. Lessard’s claim was

independently barred on both grounds. J/bid.; accord, Jn re

Sterling, 63 Cal. 2d 486, 489, 407 P. 2d 5, 8 (1965).

Mapp and Gideon are the “polar extremes” on the funda-

mental/nonfundamental continuum. See Jn re Harris, 5

Cal. 4th 813, 831, 855 P. 2d 391, 399 (1993). While the

California Supreme Court never expressly drew the line

between them before Harris, it is clear that most claims fall on

the nonfundamental side. Jn re Shipp, 62 Cal. 2d 547, 551-552,

399 P. 2d 571, 575 (1965) applied the Dixon rule to an involun-

tary confession claim. Jn re Ronald E., 19 Cal. 3d 315, 321-

322, 562 P. 2d 684, 688 (1977) applied the default rule to a

claim under Boykin v. Alabama, 395 U. S. 238 (1969).

The independence of the procedural default rule from the

merits of the federal constitutional claim is abundantly clear

from these cases. In Shipp, the petitioner’s allegations, if true,

would unquestionably amount to a violation of both due process

and the Fifth Amendment. See Shipp, supra, 62 Cal. 2d, at

550-551, 399 P. 2d, at 574. Yet the court held that there were

“three fundamental reasons why the writ should not issue: first,

habeas corpus cannot serve as a substitute for appeal in the

absence of special circumstances; second, petitioner neither

specifies such special circumstances nor alleges the reasons for

his delay in this late presentation, and, third, the recent deci-

sions of the United Siates Supreme Court do not call for any

different resolution of the issue.” /4., at 551-552, 399 P. 2d, at

575.2 Yet Shipp certainly did specify a federal constitutional

claim, and a meritorious one if his allegations were true. Shipp

thus holds that a meritorious federal constitutional claim alone

does not amount to an exception from the Dixon rule. The rule

may bar the claim independently of the merits.

Even more clear is Jn re Ronald E., supra. \n that case, the

prosecution conceded that Ronald did, at one time, have a

meritorious Boykin claim. Ronald E., supra, 19 Cal. 3d, at 321,

562 P. 2d, at 688. Yet the court held the claim barred despite

the merits, due to failure to appeal. /d., at 321-322, 562 P. 2d,

at 688. If a court can deny a claim despite conceded merits,

then it can certainly deny a claim without addressing the merits.

California law up through 1993 was clear on the point

relevant to this case. The Dixon rule was a standard procedural

bar against raising, on habeas, claims defaulted on appeal. The

rule had generous exceptions, including one for “fundamental”

claims, but a decision that a claim did not qualify for the

exceptions did not require resolution of the merits of a federal

constitutional question.

2. The last point refers to the 1963 habeas “trilogy.” See id., at 553, 399

P. 2d, at 576 (citing Fay v. Noia, 372 U. S. 391 (1963); Townsend v.

Sain, 372 U. S. 293 (1963); Sanders v. United States, 373 U.S. 1

(1963)).

B. The Waltreus Reconsideration Rule.

A related but distinct rule is the rule that a claim considered

and rejected on appeal will not be considered again. Jn re

Waltreus, 62 Cal. 2d 218, 225, 397 P. 2d 1001, 1005 (1965) is

traditionally cited for this rule, ee that case merely

applied settled law.

There are important differences between the default rule and

the reconsideration rule, however. A claim barred from further

consideration in state court by Waltreus has been exhausted and

may proceed on federal habeas. It is not defaulted. See Fields

v. Calderon, 125 F. 3d 757, 762, n. 5 (CA9 1997). More

importantly, for the purpose of this case, California courts

before 1993 were more expansive with the exceptions to

Waltreus than they were with Dixon.

In re Winchester, 53 Cal. 2d 528, 531, 348 P. 2d 904, 906

(1960) involved a habeas petition “based upon the same

grounds as those urged . . . on the appeal.” The opinion

indicates that reconsideration “even after affirmance on appeal”

is available for defects which “violate the fundamental aspects

of fairness and result in a miscarriage of justice.” Jd., at 531-

532, 348 P. 2d, at 906. The court does not elaborate on this, as

it ultimately rejects the claims on the merits. /d., at 535, 348

P. 2d, at 909.

In re Jackson, 61 Cal. 2d 500, 393 P. 2d 420 (1964)

expressly distinguishes repeated claims from defaulted claims.

“We do not engage in the kind of rescue operation in which a

petitioner asks a court to issue a writ to salvage an effective

point which he missed or waived.” J/d., at 506, 393 P. 2d, at

423. Jackson quotes Sunal v. Large, 332 U.S. 174, 181 (1947)

as support for the different treatment. /d., at 506, n. 4. There-

fore, California cases on the scope of exceptions to Waltreus

before 1993 are not authority for the scope of exceptions to

Dixon.

The outer limit of the exception to Waltreus can be seen in

In re Coughlin, 16 Cal. 3d 52, 55-56, 545 P. 2d 249, 251

(1976). The court proceeded to the merits of a previously

litigated claim that revocation of probation for an offense for

which the probationer had been acquitted violated due process.

This repetitive claim was no more fundamental than the claims

routinely rejected for default, see supra, at 6, although the

decision may have been influenced by the lack of opposition

from the prosecution. See id., at 56, 545 P. 2d, at 251. There

do not appear to be any California Supreme Court cases

similarly waiving the Dixon rule for such a routine claim.

C. In re Harris.

The California Supreme Court’s decision in In re Harris, 5

Cal. 4th 813, 855 P. 2d 39] (1993) is clear enough on its face,

but it becomes even more clear in light of the foregoing history.

Harris unambiguously narrowed, rather than expanded, the

“fundamental” exception to Waltreus, and the narrowed

exception also applies to Dixon. An interpretation of Harris to

create an Ake-type exception for all constitutional claims is

unsupportable.

Before discussing Harris, we should note that it was

decided with a companion case, Jn re Clark, 5 Cal. 4th 750, 855

P. 2d 729 (1993). Clark dealt only with the delayed petition

and successive petition rules and expressly disclaimed any

consideration of the Dixon and Waltreus rules. See id., at 768-

769, n. 8, 855 P. 2d, at 741, n. 8. For the status of the Dixon

tule, then, we need only look to Harris, in the light of prior

default cases.

Harris sought to relitigate on habeas a question resolved

against him on appeal. The state cited the Waltreus rule, and

Harris sought to invoke the Winchester exception. See Harris,

supra, 5 Cal. 4th, at 824-825, 855 P. 2d, at 395. The court

noted, “much of the following discussion also applies to the so-

called ‘Dixon rule’... .” Id., at 825, n. 3, 855 P. 2d, at 395,

n. 3.

10

Discussing the history of the Winchester exception, Harris

notes, “Certainly not all alleged constitutional defects warrant

the opportunity to relitigate the issue on habeas corpus.” /d., at

830, 855 P. 2d, at 399. The court contrasts Fourth Amendment

claims, which did not qualify for the exception, with Gideon

claims, which did. /d., at 830-831, 855 P. 2d, at 399. The

distinction is between “fundamental” rights and others; not all

constitutional claims are included. See id., at 831-832, 855

P. 2d, at 399.

Harris then reviews how the evolution of ineffective

assistance claims has the effect of softening otherwise harsh

procedural default rules, diminishing the need for broad

exceptions. J/d., at 832-834, 855 P. 2d, at 400-402. This

conclusion is in harmony with this Court’s decision in Murray

v. Carrier, 477 U. S. 478, 496 (1986). The Harris Court then

decided that Winchester “is inappropriately broad” and adopted

“a narrower exception.” 5 Cal. 4th, at 834, 855 P. 2d, at 402.

Any interpretation of Harris must bear in mind that its excep-

tion is expressly narrower than prior law.

Harris then defines the exception as “where the claimed

constitutional error is both clear and fundamental, and strikes

at the heart of the trial process... .” J/bid., citing Arizona v.

Fulminante, 499 U. S. 279, 309 (1991). Turning to the cited

page of Fulminante, we see that the court is referring to the

very limited subset of constitutional errors referred to as

“structural defects.” Gideon and Tumey v. Ohio, 273 U.S. 510

(1927) (biased judge) are the examples cited. The list of

nonstructural constitutional claims is much longer, see Fulmi-

nante, 499 U. S., at 306-307, 311, and it includes very impor-

tant rights.

Reading Harris in light of the history of the exception, its

stated purpose to narrow it, and the reference to -‘u/minante, it

is clear that the exception as reformulated in Harris is far

narrower than the one in Ake and does not require an examina-

tion of the merits of every federal constitutional claim. The

latter interpretation would be broader than Winchester, rather

11

than narrower. It would not serve the purpose the Harris Court

stated for the rule, to “reflect[ ] the proper balance between the

state’s interest in finality and the individual’s interest in

vindicating his constitutional rights.” Harris, supra, 5 Cal. 4th,

at 834, 855 P. 2d, at 402. Such a rule would completely toss

aside the “‘state’s considerable interest.” Jbid.

The various ways a “fundamental error” claim can be

resolved is illustrated by this Court’s application of the analo-

gous, although broader, “plain error” rule of Federal Rule of

Criminal Procedure 52(b). This rule is, in effect, an exception

to the procedural default rule for claims defaulted at trial and

asserted on appeal. “[B]efore an appellate court can correct an

error not raised at trial, there must be (1) ‘error,’ (2) that is

‘plain,’ and (3) that ‘affect[s] substantial rights.’ ” Johnson v.

United States, 520 U. S. 461, 466-467 (1997). Further, relief

can be granted “only if (4) the error ‘seriously affect[s] the

fairness, integrity, or public reputation of judicial proceed-

ings.’ ” /bid. (some internal quotation marks omitted).

As with other multipronged tests, there is no requirement to

take them in order, and a court can stop when it finds any one

of the four not met. Cf. Strickland v. Washington, 466 U. S.

668, 697 (1984). A court can assume without deciding that an

event at trial was “error” and deny the claim for lack of effect

on substantial rights, i.e., that defendant did not affirmatively

establish prejudice. See United States v. Olano, 507 U. S. 725,

737, 741 (1993). Such a holding is independent of the merits,

because a properly preserved claim of error warrants reversal

unless harmless, under a standard much more favorable to the

defendant. Cf. Chapman v. California, 386 U..S. 18, 24

(1967) (constitutional errors); Kotteakos v. United States, 328

U. S. 750, 765 (1946) (nonconstitutional errors). Johnson,

supra, denied relief despite a “plain error,” see 520 U. S., at

468, because the error did not meet the fourth criterion. /d., at

469. In the context of the particular case, the overwhelming

evidence of guilt was sufficient to negate this prong, there being

no “miscarriage of justice.”

12

In some cases, though, a “plain error” argument can be

rejected on the basis that there is no error, much less a “plain”

error. Jones v. United States, 527 U. S. 373, 390 (1999)

rejected a claim on that basis, with an alternative holding of no

prejudice. See id., at 394-395.

While rejection on the merits is a possible mode of denying

a “plain error” claim, it would typically not be the most

efficient. If the question presents any difficulty, it would be

simpler to reject it as not “plain,” because “a court of appeal

cannot correct an error pursuant to Rule 52(b) unless the error

is clear under current law.” Olano, supra, 507 U. S., at 734.

Decision of a close question on the merits may be appropriate,

despite the inefficiency, if it produces a published opinion

settling the question for future cases, as in Jones, but this factor

would not apply to summary dispositions.

With these principles in mind, we return to the California

Supreme Court’s decision in /n re Harris, supra. The require-

ment, again, is that “the claimed constitutional error is both

clear and fundamental, and strikes at the heart of the trial

process....” 5 Cal. 4th, at 834, 855 P. 2d, at 402. “ ‘Plain’

is synonymous with ‘clear’ or, equivalently, ‘obvious.’ ”

Olano, 507 U.S., at 734. The California rule thus incorporates

the first two Olano elements precisely. The “fundamental”

element, though, is more restrictive than “substantial.”

With both rules, then, we see that a meritorious claim, i.e.,

“error,” is a necessary but not sufficient condition for relief.

Harris, like Jones, rejected the claim by finding no error. 5

Cal. 4th, at 835-836, 855 P. 2d, at 403. It did not, however,

hold or even remotely imply that such a finding was necessary

or even the usual mode of addressing cJaims of exception to the

Waltreus and Dixon rules.’

3. The fact that a “no error” finding is a possible mode of decision raises

a more subtle point, which we discuss in part II, infra.

— ee |

13

D. Inre Robbins.

The Ninth Circuit’s conclusion that “the California Supreme

Court necessarily made an antecedent ruling on federal law

before applying the Dixon bar” in this case, see Park v.

California, 202 F. 3d 1146, 1153 (2000), App. to Pet. for Cert.

50a, was not based on Harris, the present case, or any Case in

existence at the time of the state court’s decision in this case.

It was instead based on a statement in a case decided three years

later, In re Robbins, 18 Cal. 4th 770, 959 P. 2d 311 (1998). We

may assume for the sake of argument the propriety of looking

to a later case to construe an earlier one. But cf. Federal

Housing Administration v. Darlington, Inc., 358 U. S. 84, 90

(1958) (act of later legislature not conclusive on construction of

earlier act). Robbins quite simply does not say what the Ninth

Circuit attributed to it.

As noted, supra, at 11-12, it is possible to dispose of a

claim of “plain error” or “fundamental error” by deciding that

there was no error at all: plain, fundamental, or otherwise.

This Court did so in Jones, supra, 527 U. S., at 390, and the

California Supreme Court did so in Harris, supra, 5 Cal. 4th, at

833-836, 855 P. 2d, at 403. The question is whether California

courts invariably denied claims on that basis before Robbins.

The Robbins case involved the timely petition rule, not the

Dixon default-on-appeal rule. See 18 Cal. 4th, at 779, 959

P, 2d, at 357. The exceptions to the two rules are not identical,

and Robbins refers to them separately. See id., at 814, n. 34,

paras. 5 & 6, 959 P. 2d, at 340-341, n. 34, paras. 5 & 6. For

the present discussion, though, we will assume arguendo that

the corresponding “fundamental” exceptions of Harris and In

re Clark, 5 Cal. 4th 750, 797-798, 855 P. 2d 729, 760-761

(1993) are equivalent. The Robbins court simply announced

that, for that case and in the future, the California Supreme

Court would no longer take the approach taken by Jones and

Harris. That is, the court will always henceforth take the

approach of Olano, assuming “error” arguendo and asking if

——O0O

14

the other requirements of the exception have been met.

Robbins, 18 Cal. 4th, at 811, 959 P. 2d, at 338-339.

Nothing in this statement says or even remotely implies that

in past cases the court always took the Jones/Harris approach

of addressing “error” before the other elements. On the

contrary, in footnote | the court expressly states that procedural

default has often been the basis for rejection of the petition

without considering the merits or as an alternative holding to

the merits. /d., at 778, 959 P. 2d, at 316.

The Ninth Circuit draws a negative inference about the past

from a statement about the present and future. The statement

does not support the inference. A statement “we will not do X”

may imply “we previously sometimes did X,” but by no stretch

of logic could it be deemed to imply “we always did X.” Given

the clear history to the contrary discussed in part I A, supra, at

4-7, the Ninth Circuit’s inference that the post-Harris, pre-

Robbins exception was an Ake-type exception rather than an

Olano-type exception is patently false.

II. The weight of authority holds that similar “funda-

mental error” or “plain error” exceptions do not negate

the independence of state procedural default rules.

If the Ninth Circuit had correctly understood California law,

it might have rested its “independence” holding on a ground

that is at least arguable. When a claim of “plain error” or

“fundamental error” might be rejected with a holding that there

is no error, there is a split of authority as to whether the rule is

“independent.” In this part, we discuss the split, and in part III,

infra, we discuss why it is important that this Court resolve the

split.

The Seventh Circuit noted the need for Supreme Court

guidance in Willis v. Aiken, 8 F. 3d 556 (1993). “This case

requires that we apply [procedural default] principles to a

specific but recurring litigation problem that has not yet been

15

the focus of Supreme Court guidance: when the state court

addresses a federal constitutional issue but only to determine

whether it ought to disregard its waiver rule on the ground that

the federal constitutional issue constitutes ‘fundamental

error.’ ” /d., at 561-562 (emphasis added).

Willis involved the Indiana “fundamental error” exception

to its procedural default rule. There, as in California, the

exception “encompasses matters of federal constitutional law,”

but “not all federal constitutional errors are deemed fundamen-

tal.” Jd., at 566. “To survive the procedural requireiments, the

error must constitute a blatant violation of basic principles, the

harm or potential for harm must be substantial, and the resulting

error must deny the defendant fundamental due process.” Jbid.

(quoting Wilson v. State, 514 N. E. 2d 282, 284 (Ind. 1987)).

This is, for present purposes, equivalent to the Harris rule in

California. There must be an error, the error must be “blatant”

or “clear,” and it must be a fundamental one. Willis concluded

that the state court’s determination in applying this rule “rests

On an independent and adequate state ground.” Jd., at 567.

This holding is in clear conflict with the Ninth Circuit’s

contrary conclusion on an equivalent rule.

Willis agreed with the decision of the Tenth Circuit in

Gutierrez v. Moriarty, 922 F. 2d 1464 (1991).: In that case, as

in the present case, the habeas petitioner argued that “New

Mexico has a fundamental error exception to its procedural bar

analogous to the Oklahoma exception . . . in Ake v. Oklahoma,

470 U. S. 68, 74-75 . . . (1985).” Jd., at 1468. The court

rejected the analogy because, as in the present case and Willis,

“unlike Oklahoma, New Mexico does not equate fundamental

error with federal constitutional error.” /Jd., at 1469. Gutierrez

noted the various modes for resolving a “fundamental error”

contention, along the lines of our discussion of “plain error.”

That is, the state court may or may not consider whether there

was “error.” Compare ibid., with supra, at 11-12. “As a

general rule, therefore, application of New Mexico’s procedural

bar rule constitutes an independent state ground because it does

16

not require a ruling on the merits of the federal claim.” Jbid.

(emphasis in original). As California’s resolution of “funda-

mental error” follows the same lines, this holding is in clear

conflict with the holding in.the present case.

The Sixth Circuit at one point took a position consistent

with the Ninth’s in an unpublished opinion, but it has since

repudiated that position. In Scott v. Anderson, 58 F. Supp. 2d

767, 787 (ND Ohio 1998), the District Court held that Ohio’s

“plain error” rule was not independent, quoting and relying on

Knuckles v. Rogers, No. 92-3208, 1993 WL 11874 (CA6, Jan.

21, 1993) (per curiam):

“The basic inquiry in the plain error analysis in Ohio is

whether the defendant has been denied a ‘fair trial.’

Whether a person is denied a fair trial is a question to be

resolved by applying principles of federal constitutional

law. Therefore, we conclude that the Ohio appellate court’s

decision was not independent of federal law.”

On appeal, the Sixth Circuit reversed, and it repudiated

Knuckles, finding it inconsistent with both Engle v. Isaac, 456

U. S. 107 (1982) and Coleman v. Thompson, 501 U. S. 722

(1991). Scott v. Mitchell, 209 F. 3d 854, 867-868 (2000). The

Sixth Circuit reads Coleman as holding that “the mere reserva-

tion of discretion to review for plain error in exceptional

circumstances [is not] sufficient to constitute an application of

federal law.” Jd., at 868.

The First Circuit has taken the same position with regard to

the Massachusetts “miscarriage of justice” exception. See

Puleio v. Vose, 830 F. 3d 1197, 1200 (1987); Simpson v.

Matesanz, 175 F. 3d 200, 205, 209 (CA1 1999). The Fourth

Circuit, resolving the issue left open in Coleman, supra, 501

U. S., at 741, has held that Ake does not apply in the habeas

context at all. O’Dell v. Netherland, 95 F. 3d 1214, 1244

(1996), aff'd on other grounds, 521 U.S. 151 (1997).

There are a few cases leaning in the other direction. Roy v.

Coxon, 907 F. 2d 385, 391 (CA2 1990) found that the Vermont

|

17

Supreme Court’s application of its plain error rule in the

particular case was not independent, but stopped well short of

the kind of blanket holding rendered in the present case. The

Eighth Circuit has intracircuit split. See Hornbuckle v. Groose,

106 F. 3d 253, 257 (CA8 1997). One branch is consistent with

the weight of authority, i.e., “a properly limited plain error

review by a state court does not cure a procedural default.”

Toney v. Gammon, 79 F. 3d 693. 699 (CA8 1996). The other

branch has a unique twist. It holds that plain error review opens

the question to the federal cout, but only for “plain error

resulting in manifest injustice.” Hornbuckle, 106 F. 3d, at 257.

Again, this is well short of the holding of the present case,

which opens all defaulted claims in California to full blown

litigation in federal court.

In summary, the holding in the present case is contrary to

the overwhelming weight of authority from the other circuits.

“The ultimate answer to this quaidary can, of course, only be

supplied by the Supreme Court.” Willis, supra, 8 F. 3d, at 565.

This case is a prime candidate for certiorari. Supreme Court

Rule 10(a), (c).

III. The Ninth Circuit’s severe approach to procedural

default creates a perverse incentive and will further

obstruct an already clogged system of review.

No other circuit subjects any other state to the kind of

“pointless severity,” cf. NAACP v. Alabama ex rel. Flowers,

377 U. S. 288, 297 (1964), that the Ninth Circuit has applied to

California in the present case and related cases. See Pet. for

Cert. 11, and n. 3. The reasons for not doing this have been

stated in many opinions in other circuits. As then-Judge Breyer

wrote for the First Circuit:

“If federal habeas courts were too ready to find that state

“miscarriage of justice’ review constitutes ‘waiver’ of the

state’s procedural rules, the state either would have to

convert what is often a speedy reviewing task into a full

18

scale detailed examination of federal law or it would have

to abandon ‘miscarriage of justice’ review altogether. The

latter alternative seems highly undesirable. The former

conflicts with the theory of Wainwright [v. Sykes, 433 U.S.

72 (1977)].” McCown v. Callahan, 726 F.2d 1, 3-4 (1984)

(emphasis added).

“Undesirable” is an understatement. If generosity in

exceptions means effective destruction of the rule, imposing on

the state the burden of litigating a tidal wave of marginal claims

that should have been precluded, the pressure is strong to shut

down the exceptions. That result was “undesirable” in 1984,

and it is even more so with the limitations placed on federal

habeas since then. State habeas should be the principal means

of addressing claims that could not be made on appeal and also

claims that ought to be considered, despite appellate default, to

prevent a miscarriage of justice. The latter exception for rare

cases ought not expose the state to litigation of a flood of

worthless, defaulted claims. If making an exception for the

needle means being buried by the haystack, the state may

conclude the needle is not worth the price. Cf. Brown v. Allen,

344 U. S. 443, 537 (1953) (Jackson, J., concurring in the

judgment).

Does California have to abolish a// the exceptions to its

procedural default rule, and adopt a rule of uncompromising

rigidity, heedless of miscarriages of justice, before the Ninth

Circuit respects its rules? This would appear to be the import

of this relentless parade of decisions. Fields v. Calderon, 125

F. 3d 757, 763 (CA9 1997) held the pre-Harris rule “inade-

quate” for allowing discretion without rigid standards. A

cutback was made in Harris, but the present case holds that was

not enough. A further refinement was made in Robbins, but the

present case ominously threatens that may still not be enough.

See Park v. California, 202 F. 3d 1146, 1153 (CA9 2000), App.

to Pet. for Cert. 49a. If the requirement for an adequate,

independent exception is going to be moved every time, the

only sure way to fix the problem is to repeal all the exceptions.

19

Other courts have recognized the utter folly of this course.

As the Seventh Circuit noted on a related point, an overly

severe approach “would discourage state courts from applying

plain error doctrines, lest giving one prisoner a break disable

the state from enforcing its procedural rules with respect to

many others. Neither prisoners’ interests nor the interests of

federalism would be served by such a development.” Prihoda

v. McCaughtry, 910 F. 2d 1379, 1384 (1990).

Opposing rehearing in the Court of Appeals, Park main-

tained that the decision in this case “has little practical effect

on the procedural import of a Dixon default.” Appellant’s

Response to Appellee’s Petition for Rehearing and Suggestion

for Rehearing En Banc 17. “Park merely extends the effect of

Fields to 1998 ....” Ibid. That is, Park “merely” extends the

complete obliteration of California’s procedural default rules

for all the cases decided in an additional five-year period.

This statement assumes, first, that Fields was correctly

decided and its holding will not be eventually overturned by

this Court. Although certiorari was denied in that case, see

Calderon v. Fields, 523 U. S. 1132 (1998), that denial says

nothing about the merits, and there are many cases remaining

in the pipeline which may serve as vehicles to overturn that

manifestly erroneous decision. See generally Brief for Criminal

Justice Legal Foundation as Amicus Curiae in Calderon v.

Fields, No. 97-1262. Even-assuming that Fields does escape

review, though, the impact of this case goes beyond California.

As the cases in part II illustrate, many states have similar rules,

and this case will serve as a precedent, binding in the other

States of the Ninth Circuit and possibly followed elsewhere, to

similarly obliterate the procedural default rules of other states

for the sin of excess generosity. It will serve as an incentive for

other states to curtail or eliminate the exceptions for their

default rules until the uncertainty it creates is resolved.

Even within California, the impact is far greater than fits the

word “merely.” Although this is not a capital case, its impact

will be the greatest in those cases. From July 1993 to June

20

1998, a span slightly less than the interval from Harris to

Robbins, the California Supreme Court decided 71 capital

appeals and 155 habeas petitions related to capital appeals.

Judicial Council of California, Court Statistics Report 6 (1999).

Given the tendency of the capital defense bar to make a plethora

of additional claims at every stage of proceedings, this trans-

lates to thousands of claims that should be precluded by the

default-on-appeal rule, the successive petition rule, the delayed

petition rule, or some combination of these. Since the opinion

in the present case seems to apply indiscriminately to all these

rules, see App. to Pet. for Cert. 47a-50a, all these barred claims

will have to be litigated in federal court. This mass of defaulted

claims will further contribute to the already atrocious delays

that California’s capital cases face in federal court, exactly what

Congress sought to correct with the Antiterrorism and Effective

Death Penalty Act of 1996. See 141 Cong. Rec. 14,734 (1995)

(statement of Sen. Feinstein).

This case is important, both for its massive impact on

California and for its potential detrimental effects elsewhere.

CONCLUSION

-

The petition for writ of certiorari should be granted.

August, 2000

Respectfully submitted,

KENT S. SCHEIDEGGER

Attorney for Amicus Curiae

Criminal Justice Legal Foundation