Cases by Issue - Habeas Corpus

Hamdan v. Rumsfeld - Oral Argument

Fri, 09 Jan 2009 14:48:59 +0000

Case:

Hamdan v. Rumsfeld

Media File:

05-184_20060328-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Neal Katyal

Justice Stevens: We'll hear argument in number 05-184, Hamdan against Rumsfeld.

Mr. Katyal, you may proceed.

Mr. Katyal: Justice Stevens, and may it please the Court--

We ask this Court to preserve the status quo to require that the President respect time honored limitations on military commissions.

These limits, placed in Articles 21 and 36 of the Uniform Code of Military Justice, require no more than that the President try offenses that are, indeed, war crimes and to conduct trials according to the minimal procedural requirements of the UCMJ and the laws of war themselves.

These limits do not represent any change in the way military commissions have historically operated.

Rather, they reflect Congress's authority under the Define and Punish Clause to codify limits on commissions, limits that this Court has historically enforced to avoid presidential blank checks.

And because this commission transgresses those limits, it should be struck down and the District Court order reinstated.

If I could turn to the jurisdictional matter for a few moments first, we believe that the DTA, while certainly not a model of clarity, does not divest this Court of jurisdiction, for four essential reasons.

The first is that, if I could turn to the surreply at page... the appendix at page 14(a), that contains the initial version of the bill that passed the Senate on November 10th.

And at 14(a) it says, on the effective date provision,

"The amendment made by paragraph 1. "

which is the jurisdiction stripping provision,

"shall apply to any application or other action that is pending on or after the date of enactment of this Act. "

That language clearly attempted to strip courts of jurisdiction over Guantanamo claims.

That language, however, was changed in the final version of the DTA, and the final version of the DTA is found at page 10(a) of the surreply.

And that has the following as its effective date.

It has two effective date provisions.

The first one I want to start with is H(2), review of combatant status tribunal, CSRT, and military commission decisions,

"Paragraphs 2 and 3 of subsection (e) shall apply with respect to any claim whose review is governed by one of such paragraphs and that is pending on or after the date of enactment of the Act. "

And then, there is a separate provision for the rest of the DTA, for--

Justice Scalia: Where was that change made from the prior version?

Mr. Katyal: --The change was made between November 10th and November 15th.

Justice Scalia: Yes, but, I mean, what... it was made in what house?

Was it made by the Conference Committee?

Mr. Katyal: It was made in the Senate.

Justice Scalia: It was made in the Senate.

So the House presumably never saw the prior--

Mr. Katyal: That--

Justice Scalia: --language.

Mr. Katyal: --That's correct.

Justice Scalia: And the President, who signed this bill, never saw the prior language.

Mr. Katyal: That is correct.

Justice Scalia: So, why should we attribute to both the House and to the President a knowledge of the prior version of the legislation?

Mr. Katyal: Well, because the language itself was, I think, the subject of an immense amount of debate.

And, indeed, when the language was--

Justice Scalia: In the Senate.

Mr. Katyal: --In the Senate.

And well known.

And, indeed, you don't have to attribute any knowledge to the President.

We have evidence in the record that the administration tried to change the language back to the original formulation.

And, indeed, in the House, the chairman of one of the... the vice chairman of the Conference Report said that the change in the language was in... was... the change in the language meant that it grandfathered pending cases such as this one.

So, this is not an example of which we have to resort simply to the negative inference of Lindh.

However, we do think that is the second reason for you to believe that this case is grandfathered under the existing DTA.

Justice Alito: But isn't that--

Justice Ginsburg: What, in addition to this case... I mean, this case is pending in the U.S. Supreme Court.

There are many cases pending in the District Court when this law comes into effect.

What about those cases?

Mr. Katyal: We believe that, as the cosponsor said, on November 15th when they introduce the final version of the language, that all of those cases are grandfathered with respect to the H(1) effective date provision and the E(1) jurisdiction stripping provision.

However, that still leaves in place the Government's main argument in the D.C. Circuit below, which is that the E(2) provision governing CSRT and final decisions, and the H(2) provision governing final decisions of... final decisions of CSRTs, truncates all of the review that is currently in the D.C. Circuit.

So, it's certainly... it's certainly possible, though it's not, of course, presented in this case, to read the DTA as truncating the vast majority of claims at Guantanamo in current pending cases.

Of course, that isn't the issue before you here.

The issue before you here is simply the Hamdan case, and there was... and there was a strong... the strong desire by the Congress not to interfere with this Court's traditionally exercised jurisdiction.

Justice Scalia: Please go over that again.

I'm not... I'm not sure I understood... I understood your response.

Mr. Katyal: Okay.

Justice Scalia: You say that it could be read to preclude cases in the lower courts, but not here.

Mr. Katyal: That's right, cases in which there is a final CSRT decision; that is, that the Government's argument in the D.C. Circuit, Justice Scalia, is that there are two different ways in which the DTA truncated the review of Guantanamo cases.

One is the claim that the jurisdiction stripping provision applies to pending cases.

That, we reject.

That, we think the Senate rejected on November 15th when it passed the bill.

The other is the claim that the E(2) provision governing final decisions of CSRTs, which does, of course, apply to pending cases, as the plain text says, eliminates and truncates a... the vast majority of the detainees' claims.

That is the provision--

Justice Souter: Does that mean, in practical terms, that the... that the... that the other claims that are in the District Court get transferred to the Circuit, the Circuit is bound by the limitations that you've just described, and, at the end of the day, the complaining parties in those cases can raise the question whether they... whether Congress could properly have truncated them, as it did, but it's simply got to wait?

Mr. Katyal: --Absolutely.

And--

Justice Souter: Okay.

Mr. Katyal: --to be clear, that's not the position we're saying that is the DTA.

That's not presented here.

Justice Souter: I realize--

Mr. Katyal: That's the issue--

Justice Souter: --Yes.

Mr. Katyal: --below, in the D.C. Circuit.

In addition, we believe that this statute doesn't fall within the Bruner Hallowell presumption that the Government seeks to... seeks to use here, for a few reasons.

The first is, this is not a statute that is merely divesting a lower court of jurisdiction.

Rather, it's a statute that alters substantive rights of Mr. Hamdan.

In particular, as the Government itself says, it eliminates question 2, upon which certiorari was granted, which is compliance with the Geneva Conventions.

In addition, it alters entirely what both courts below found, which is that Mr. Hamdan has a pretrial right, a right analogous to Abney versus United States, to bring his claim now, because he's challenging the jurisdiction of the tribunal.

That pretrial right is something that mirrors... that goes all the way back to the founding, in the early cases that this Court decided, on pretrial habeas.

In addition, we believe that--

Justice Alito: --Why does it... why does it affect the scope of the review that he could get eventually?

If there's a final decision, there can be review of whether the use of the standards or procedures that were used by the commission to reach a final decision is consistent with the Constitution and laws of the United States?

Why doesn't that encompass any claim that he might want to make later on?

Mr. Katyal: --Well, as the Government says, it does... certainly does not encompass question 2, because it eliminates the word "treaties".

It's a change from the habeas corpus statute.

More generally, it doesn't do two things.

First, if that's the reading that the Government wants to give, well, then it essentially means that the... that the President has the ability to block habeas corpus or post DTA review for all time, because, Justice Alito, it doesn't turn on... you can't walk into court right after you're convicted, under the DTA; you can only walk into court after a final decision.

And a final decision requires the sign off of the President of the United States.

And so, effectively, this reading would give a litigant the ability to block Federal Court review for all time.

Justice Alito: I mean, criminal litigation review after the final decision is the general rule.

There generally is not any interlocutory... any interlocutory appeal.

And what you say could happen in any criminal case if you assume bad faith on the part of the people who are responsible for making the decisions along the way.

They could delay indefinitely and postpone the entry of a final decision.

Mr. Katyal: Justice Scalia... Justice Alito, if this were a final... if this were like a criminal proceeding, we wouldn't be here.

The whole point of this is to say we're challenging the lawfulness of the tribunal itself.

This isn't a challenge to some decision that a court makes.

This is a challenge to the court itself.

And that's why it's different than the ordinary criminal context that you're positing.

The ordinary criminal context you're positing... and I'm thinking of a case like Schlesinger versus Councilman, a court martial case... what the Court has said is that it's the... the predicate for abstention is the idea that Congress has fairly balanced the rights of both sides, an independent branch, and has... and has made certain determinations.

Here, none of that has happened.

It's all been made by the executive.

And the difference is crucial in military justice, because, as Justice Kennedy said for the Court in Loving, the framers harbored a deep distrust of military tribunals.

And the thing that makes it different than the ordinary criminal context, the thing that, as this Court said, stops military justice from being lawless is the Congress of the United States setting clear limits on the use of military justice.

Now, if those limits had been observed, if this Court... if the military commission complied with the rules of courts martial, we wouldn't be here.

Our whole point is that they don't, and that it falls outside of the well recognized abstention exception for courts martial cases.

In addition, we believe that to further... to further on... Justice Alito, on your point... this point is already said in the military commission context that a different rule applies.

In Quirin, this Court rushed in to hear a military commission challenge before the commission was over, and the reason why it did so was, it said that the public interest required adjudication of these issues.

And the public interest is no less severe in that case than it is here.

That is, this is a military commission that is literally unbounded by the laws, Constitution, and treaties of the United States.

And if you adopt the Government's position here, it effectively replicates the blank check that this Court rejected in Hamdi.

Justice Scalia: Could I come back to Justice Alito's question as to what the normal procedure would be in criminal cases?

Suppose you're... you have a challenge to the makeup of the tribunal in a criminal case.

Is it... is it the normal practice that you would get to raise that challenge?

Let's say one of the judges is disqualified for some other reason.

Can you normally raise that challenge before the criminal case is filed?

Mr. Katyal: I don't believe so.

Justice Scalia: So, there would be nothing different in this situation, if you couldn't raise it until it was final.

Mr. Katyal: Justice Scalia, everything is different about this.

That is, in your posited hypothetical, there is some law that you know will govern that ultimate question about disqualification or whatever the--

Justice Scalia: Oh, I know.

Mr. Katyal: --matter--

Justice Scalia: It goes to the merits of the issue.

I'm just talking about the timing of the issue.

Mr. Katyal: --Well, I do think that there's an integral relationship to the... between the two.

That is, that the predicate for abstention has always been that Congress, or some other entity, has fairly balanced the rights of both sides.

Here, you don't have that fundamental guarantee.

Indeed, if you adopt the Government's reading here, the... they have said that they want to try 75 military commission cases or so in the first wave.

You will then be left with 75 trials that take place without even the most basic question of what the parameters are that these commissions are to operate under.

Justice Scalia: Well, when you say Congress hasn't fairly balanced it, I mean, I guess that depends upon your reading of the statute.

If, indeed, you read it the way the Government reads it, they would assert that Congress did consider these military commissions and thought that it was okay to wait until they had completed their work before full review was provided.

Mr. Katyal: But--

Justice Scalia: I mean, it's sort of a... you know, a... you're running in a circle.

Mr. Katyal: --Well, that's precisely, Justice Scalia, our argument, that I don't think one can consider the abstention claim... and this is what I believe both courts below have held... you can't consider the abstention claim without deciding the underlying merits.

And if you believe that the... that Congress has fairly balanced the rights and are compliant with the UCMJ and the like, then I don't think... then you're reaching the merits, and there's no abstention holding.

So, if I could turn to the merits... the merits challenges, the first thing I'd like to discuss on... is question number 1 and whether this military commission states a charge that violates the laws of war.

And we believe it doesn't, for two essential reasons.

First, the only charge in this case is one of conspiracy.

And conspiracy has been rejected as a violation of the laws of war for... in every tribunal to consider the issue since World War II.

It has been rejected in Nuremberg, it's been rejected in the Tokyo tribunals, it's been rejected in the international tribunals for Rwanda and Yugoslavia, and, most importantly, it's been rejected by the Congress of the United States, in 1997--

Justice Stevens: Mr. Katyal, will you help me?

Where is the conspiracy charge in the papers?

Mr. Katyal: --The charge itself, Justice Stevens, is found at 63(a) of the Petition appendix.

Justice Stevens: Okay, thank you very much.

Mr. Katyal: Sure.

And--

Justice Kennedy: And suppose you had a tribunal that was properly constituted, as you contend that it ought to be, and then the charge was conspiracy.

Would the... would the courts then have review before the trial proceeded?

And let's assume that it's a conspiracy and some other charge.

Is there some analog in ordinary criminal proceedings where you challenge, in advance, the validity of the charge?

Mr. Katyal: --Ordinarily, Justice Kennedy, the answer would be no, you wouldn't challenge the validity of the charge.

And, indeed, I think Councilman itself is a... is a case in which there was a charge at issue, and the question was subject matter jurisdiction.

The reason why this is different, however, is twofold.

First, the claim that Mr. Hamdan is making is that conspiracy itself falls entirely out of any authorization of Congress.

In Councilman, the question was... there was an article, Article 134 of the UCMJ, which was a criminal statute, and it had been interpreted to punish drug dealing.

And in the case the court said where... this Court said,

"We will defer as to whether the facts showed the requisite amount of drug dealing to violate the Uniform Code. "

Here, by contrast, Mr. Hamdan's claim is that the conspiracy charge falls entirely outside of the laws of war as a whole.

Justice Kennedy: Could the tribunal interpret the conspiracy charge to mean joint enterprise, which would be closer, at least, to accepted practice in the international tribunals?

Mr. Katyal: The charge itself is one of conspiracy.

Joint enterprise is, itself, not an independent charge in international tribunals; so you can charge, for example, murder.

And your theory, in an international tribunal, of how you get to murder is joint criminal enterprise.

But you'd have to charge the underlying violation, itself.

Here--

Justice Kennedy: I'm still not sure why, if we think that there is merit to your argument that the tribunal is not properly established anyway, that you... we have to reach the conspiracy charge.

Mr. Katyal: --If you--

Justice Kennedy: And if we... and if we think that you're wrong on that, I don't know why that court can't hear the conspiracy argument.

Mr. Katyal: --Well, there's two different reasons.

The tribunal is not authorized, and that the charge doesn't state a violation.

Now, even if we assume that the tribunal is authorized and that all of its microprocedures are authorized under the act of Congress, this... allowing this charge, conspiracy, is to open the floodgates to give the President the ability to charge whatever he wants--

Justice Souter: Well, that's--

Mr. Katyal: --in a military commission.

Justice Souter: --Mr. Katyal, I mean, that's a good argument for... from a broad policy, but isn't there a narrower reason?

If we assume that the... that the commission is properly established for some purpose, by definition that purpose is limited.

We are not dealing here, as we would in the normal criminal case, with a court of general jurisdiction.

If we're dealing with a court of general jurisdiction, we postpone claims like yours til the end, because we say the jurisdiction is so broad, they probably had it.

Maybe not, but we can wait.

But in a... in a... in a court of limited jurisdiction, or a commission of limited jurisdiction, we can't indulge that presumption.

And that's why, I thought, your claim that conspiracy is not cognizable can be raised at the beginning, because it's inseparable from the limited jurisdiction of the court.

Am I off in left field?

Mr. Katyal: You are--

Justice Souter: Or do you like that answer.

Mr. Katyal: --absolutely correct, Justice--

Justice Souter: Okay.

Mr. Katyal: --Souter.

And, indeed, I would add to that that the conspiracy charge here, Justice Kennedy, is... the problem with it is compounded by the fact that the tribunal itself is charging a violation of the laws of war, when the military commission has never operated to try violations of terrorism in stateless, territoryless conflicts.

That is, it's not just the charge, but it's where the charge operates that we find so central, that the... that there are two different things--

Justice Alito: But is it clear that the--

Mr. Katyal: --there's two different problems.

Justice Alito: --charges against your client could not be amended?

Mr. Katyal: They may be amended, yes.

Justice Alito: Then why should we... why should there be review, before trial, of a charge that could be amended?

Mr. Katyal: Be--

Justice Alito: There could be additional charges added by the time there's a final decision.

Mr. Katyal: --And the... Justice Alito, the Government has had, essentially, now 4 years to get their charges together on Mr. Hamdan.

At this point, that... you know, what you have before you is the charge.

And that... and they've stuck with this charge, of conspiracy, which is not a violation of the laws of war.

And, indeed, the... and the... it's not just conspiracy isn't, but that the commission is operating in totally uncharted waters, because it's charging a violation in a stateless, territoryless conflict, something as to which the full laws of war have never applied.

Indeed, Justice Alito, all ten people facing military commissions today, all ten indictments charge conspiracy right now.

Seven only charge conspiracy.

Justice Alito: Isn't this contrary to the way legal proceedings and appeals are normally handled?

You have a... essentially, a pretrial appeal concerning the validity of the charge that may not even be the final charge.

Mr. Katyal: Not in... not here, because, as, I think, both courts below indicated, this case, and his challenge, falls very much like Abney versus United States.

This is a challenge to the lawfulness of the underlying tribunal and the charge that's against them.

Indeed, this Court, in Quirin, heard, as its first question, Does the charge state a violation of the laws of war?

That was the first thing it said had to be asked.

So, I think the... what we are doing is applying nothing more than the settled practice that has always been the case with respect to military commissions.

And it... in... the public interest here, again, just as Quirin, I think, requires some limits placed on military commissions, Justice Alito, because, otherwise, if the Government's position is taken as the final word, it'll give the President the ability to essentially create that blank check, for years on end, render a final decision at some point, and then that final decision will then be subject to the truncated review procedures in the DTA, which I don't think is what Congress intended when they changed the language of the bill.

Rather, I think what they did was intend that this Court would decide the basic... apply the basic structural limits on military commissions that have always applied.

Justice Stevens: May I ask this question about the charge?

The charge is not just conspiracy in the abstract, it's conspiracy to do specific things, one of which is attacking civilians and civilian objects.

And is it clear that the commission would not have... a military commission would not have jurisdiction to try a conspiracy to armed civilians in a war zone, for example?

Mr. Katyal: It is clear, Justice Stevens.

That is... that is precisely what the international tribunals reject.

Conspiracy is a standalone offense.

One can charge, as a war crime, attacking civilians and the like, as a pure crime, but what you can't do is charge conspiracy.

And, indeed, the Congress of the United States, in 1997, when they wrote the War Crimes Act, essentially made that conclusion, because they defined "war crimes" with incorporating a variety of treaties--

Justice Kennedy: Well, suppose that proof were to show that there was very substantial and knowing involvement rendering him basically an accomplice or a principal, but it was... it was still found under conspiracy.

Would international law violate that?

Mr. Katyal: --If the--

Justice Kennedy: Assume that he's been given notice of... during the... during the course of the proceedings as to what the charges specifically are as the proof is adduced.

Mr. Katyal: --Justice Kennedy, on this particular point, on conspiracy, yes, if... that you couldn't charge some other offense, like aiding and abetting, and transmute some conspiracy charge into that.

Rather, the international law and the laws of the United States recognize you can prosecute him for aiding and abetting as a violation of whatever the specific underlying crime is, like murder or attacking civilians.

What you can't do is use the standalone offense of conspiracy.

And here's why.

Because the standalone offense of conspiracy is rejected by international law, because it's too vague.

And this Court has said that the test for a violation of the laws of war is when universal agreement and practice make it a violation.

The world rejects conspiracy, because if it's adopted it allows so many individuals to get swept up within its net.

Justice Kennedy, aiding and abetting which requires a much closer relationship between the conduct and the individual offender.

Conspiracy does not.

And so, for example, under the Government's theory, a little old lady in Switzerland who donates money to al Qaeda, and that turns out to be a front for terrorists acts and so on, might be swept up within this broad definition of conspiracy.

And that's why international law has so rejected the concept of conspiracy.

Justice Alito: Well, that wouldn't be--

Justice Kennedy: Well, let me put it this way.

If we were to find that the Geneva Convention or other settled principles of international law were controlling here, why couldn't we just remand to the D.C. Circuit and let it figure that out?

Or let it... have the tribunal figure it out, in the first instance, assuming the tribunal is properly authorized.

Mr. Katyal: Well, it is the role of this Court to confine the tribunal to its lawful jurisdiction.

And that's what this Court held in Quirin.

And that's what we think you should do here.

The tribunal itself can't be the judge of its own jurisdiction.

Justice Kennedy: Well, suppose we told the D.C. Circuit that the Geneva Convention or some other body of international law controls, and just remand to it for it to go into all these arguments?

Mr. Katyal: Again, we think, at this point, that the public interest is best served by this Court saying that conspiracy doesn't violate... to set some limits.

After all, all... everyone facing a military commission is facing this charge.

Seven are only facing this charge.

The Government wants to put 75 of these cases through.

And it has taken 4 and a half years since the President's military order--

Justice Stevens: May I ask--

Mr. Katyal: --for this case--

Justice Stevens: --this question?

Supposing the charge had been slightly amended.

Instead of saying,

"The criminal purpose, and conspired and agreed with Osama bin Laden to commit the following offenses. "

it said,

"It and Osama bin Laden attempted to... aided and abetted in committing the following offenses. "

Would it then be... violate the laws of war?

Mr. Katyal: --If the charge is the specific offenses themselves, not aiding and abetting, Justice Stevens--

Justice Stevens: Well, the specific offenses are attacking civilians and attacking civilian objects.

Mr. Katyal: --Yes, with respect to this particular claim about conspiracy, that would solve that problem.

If you say the charge is attacking civilians, and your theory of proving it is aiding and abetting the murder or the attacking of civilians--

Justice Stevens: And then--

Mr. Katyal: --yes.

Justice Stevens: --what if the trial judge who looked at the indictment or ruling on a motion to dismiss the indictment, or its equivalent at this time... said,

"Well, I'm going to construe these words "conspired or agreed" as the substantial equivalent of "aiding and abetting". "

Would that let the charge stand?

Mr. Katyal: That would mix apples and oranges, because "conspiracy" and "aiding and abetting" are two entirely different things.

One is a standalone offense.

And the one is a theory of how to prove a violation--

Justice Stevens: But the language is "conspired and agreed with".

And "agreed with" is pretty close to "tried to do it himself".

Mr. Katyal: --It's not, Justice Stevens, because it requires a different level of participation, and the liability is entirely different.

Because if conspiracy is accepted, you're accepting Pinkerton liability.

That's what the Government's own charge said... the Government's own instruction said, which means that Mr. Hamdan is liable for all the acts of 9/11 and everything al Qaeda has done.

"Aiding and abetting", as you are saying, Justice Stevens, in your hypothetical, is a much more closely tethered theory of liability, requiring a higher level of individual culpability and a totally different level of punishment.

Justice Scalia: As I recall the sixth amendment, you're entitled to know the charge against you.

And you're saying that the charge of conspiracy is not the charge of aiding and abetting.

Mr. Katyal: That is correct.

If I could turn to a second argument for why we believe this military commission is impermissible, and that is that it defies the Uniform Code of Military Justice.

The Uniform Code of Military Justice, in Article 36, sets minimal ground rules for military justice, writ large.

And it says that the President can't act in ways that are contrary to, or inconsistent with, this chapter.

As Judge Robertson found, already we know that has happened here.

Mr. Hamdan has been kicked out of his criminal trial right at the get.

And the Government's position is that they don't have to abide by the UCMJ, which is a further reason, of course, why we believe that abstention isn't appropriate, because it defies the rules set out by Congress.

We're asking this Court to apply the minimal rules of the UCMJ to the military commissions that operate at Guantanamo Bay, because Article 2 of the UCMJ has been extended, and its protections now extend to Guantanamo Bay and protect those who are detained there.

And one of its protections is the right to be present, and that has been fundamentally violated by... already.

If I could--

Justice Scalia: You acknowledge the existence of things called commissions.

Or don't you?

Mr. Katyal: --We do.

Justice Scalia: I mean--

Mr. Katyal: Absolutely.

Justice Scalia: --What is the use of them if they have to follow all of the procedures required by the UCMJ?

I mean, I thought that the whole object was to have a different procedure.

Mr. Katyal: Justice Scalia, that's what the Government would like you to believe.

I don't think that's true.

The historical relationship has been that military commissions in courts martial follow the same procedures.

That's what General Crowder said when he testified in 1916, and what this Court has quoted from his testimony.

It's what every military treatise says.

Now, to be clear, our position is not that military commissions must follow all the rules for courts martial.

Not at all.

They must require... must follow the minimal baseline rules set in the Uniform Code of Military Justice by Congress.

They can depart from the panoply of rules, the 867 pages of rules in the Manual for Courts Martial, so long as they don't depart from the UCMJ itself.

Congress has answered this question, Justice Scalia, in Article 36, by saying the President does have a wide ability to depart from the rules, but he can't depart from the fundamentals of the UCMJ.

And, indeed, that's what--

Justice Kennedy: What fundamentals, other than personal presence, are you concerned with in this case?

Mr. Katyal: --Well--

Justice Kennedy: Or is that it--

Mr. Katyal: --Well, we do believe that the... that the entire panoply of UCMJ protection--

Justice Kennedy: --I understand--

Mr. Katyal: --is involved.

Justice Kennedy: --the nature... the appointing authority and so forth.

But so far as the right of a defendant at the proceeding--

Mr. Katyal: Well--

Justice Kennedy: --just right to be present?

Is there a requirement of prompt convening of the proceedings?

Mr. Katyal: --Absolutely.

There's an Article 10 right for speedy charges.

There is also an Article 67 right for independent Court of Appeals for the Armed Forces review, which is something that is not guaranteed by this commission.

And so... and, indeed, was a predicate for this Court's abstention holding in Councilman.

So, we do believe that there are... that these fundamental rights apply.

And, of course, this is just all, Justice Kennedy, default rules.

If the... if the Congress wants to pass a law to exempt military commissions from Article 36, that... they are free to do so, and that will then be... that'll then be--

Justice Breyer: But if you have to--

Mr. Katyal: --a simpler case--

Justice Breyer: --approximately the same procedures, what's the point of having a military commission?

I think that was implicit in Justice Scalia's question.

So, if you go back... Revolution, Seminoles, Modoc, Mexican War, World War II... why have them?

Mr. Katyal: --Well, we had them before, because... we had them before, because we couldn't find military court martial jurisdiction.

They were situations of absolute necessity.

The reason was that the Articles of War, for one reason or another, didn't cover particular individuals.

And, therefore, we needed to craft a separate procedure.

But, whenever we did so, Justice Breyer, we always said that court martial rules apply.

In 1847, which is really the first instance of a military commission, because General Washington operated under statutory charges to try spying... but in 1847, we applied court martial rules by General Order Number 1.

In the Civil War, we applied General Order Number 1 again, and it said that it would... that we needed to apply to court martial... court martial rules, because, otherwise, abuses would arise.

And, essentially, the worry is one of forum shopping, that you give the President the ability to pick a forum and define the rules.

And that... and that fundamentally open ended authority is what I believe this Court rejected in Hamdi, and it's... and when it rejected the blank check.

Justice Scalia: Mr. Katyal, you've addressed the Detainee Treatment Act in its... in its capacity as, arguably, removing jurisdiction.

Might not the Act also function as a retroactive approval of what the President has done?

Mr. Katyal: Certainly, there's nothing in the text of the Act itself... and even... I know this isn't relevant for you, but for other individuals on the Court... there's nothing in the legislative history, or even the post... even the brief filed by Senators Graham and Kyle, which suggest, in any way, that this was ratification.

But suppose it were, Justice Scalia.

Suppose it did ratify some sort of military commission.

I don't believe that it authorized this military commission with this charge, conspiracy, in this conflict, a stateless, territoryless conflict, with these procedures, procedures that violate the UCMJ.

So, it may be that they authorized something.

But even that, I think, may be a bit hard, because, after all, what they did was authorize, as Justice Alito said, certain challenges to military commissions.

Justice Kennedy: Do you think, as a minimum, that they authorized a military commission?

Mr. Katyal: They... I think it's perfectly... well, it's a... it's a... it is a possible reading to say the DTA authorized some sort of military commission.

The text doesn't say so.

It is, of course, addressed to the jurisdiction of this Court, and not in any way to the... to the... to the... to the underlying merits.

I do think that the... that there is a... you know, a conceivable argument.

However, the reason why I think this Court, if it did decide to reach that ultimate question, should reach it against the Government, is that that kind of back door kind of... you know, approval by inference has never been sufficient when it comes to authorizing military jurisdiction, in the most awesome powers of the Government, to dispense life imprisonment and death.

That is, I think, a clearer statement would be required in this unique setting, because we aren't talking about, after all, minor things.

We're talking about the most grave powers of our Government, the power to dispense life imprisonment and death.

And I certainly don't think Congress, on the basis of a few hours of debate, intended to ratify this entire apparatus.

If I could turn to question 2 and the Geneva Conventions, I'd like to start with Common Article 3 and its minimal baseline requirements that a regularly constituted court be set up, and one that dispense... that affords the rights indispensable to civilized peoples.

As Judge Williams found, below, that article does apply to Mr. Hamdan, and protects him.

It's the most minimal rudimentary requirements that the United States Senate adhered to when it ratified the convention in 1955.

And those requirements--

Justice Scalia: It depends on what you mean by "regularly constituted".

In your brief, I gather you... what you meant is that a court that was preexisting.

It doesn't necessarily mean that.

It just... it could mean one that was set up for the occasion, but was set up for the occasion by proper procedures.

Wouldn't that be a "regularly constituted court"?

Mr. Katyal: --Well, I think the way that it has been interpreted, "regularly constituted court", is not an ad hoc court with ad hoc rules.

So, that is to say, Justice Scalia, if they resuscitated--

Justice Scalia: Well, I mean, not ad hoc in that sense,

"I'm creating one court for this defendant, another court for the other defendant. "

but setting up for the occasion, and for trying numerous defendants, a new court.

I don't think that, just because it's a new court, you can say that it's not a "regularly constituted court".

Mr. Katyal: --So long as it is, (a) independent of the executive, which is what it's been interpreted to be, and, (b) affords the rights known to civilized peoples.

And here, we think this military commission strays from both of those... from both of those.

It's not independent of the executive--

Justice Ginsburg: You've mentioned... you've mentioned that the defendant has no right to appear before the tribunal.

What are the other rights recognized by all civilized people that these tribunals do not guarantee?

Mr. Katyal: --So far, Justice Ginsburg, all that we have before... you know, I think all that's happened is the right to be present.

To look to what other rights are guaranteed by Common Article 3, you can look to Additional Protocol 1 of the Geneva Conventions, which specifies rights like appeal rights and the like.

But they're the most minimal baseline rights.

We're not talking about, you know, Miranda rights or something like that.

We're talking about just a set of core ideas that every country on the world... every country in the world is supposed to dispense when they create war crimes trials.

And, even that minimal standard, the Government says they don't want to apply here.

And why we think this is enforceable is that Mr. Hamdan is being prosecuted in the name of the laws of war.

And he has the right to invoke the Geneva Conventions defensively as a... as a way to constrain the tribunal, to say that they can't--

Justice Kennedy: How do you want us to view his status?

Do we accept the Government's submission that there's probable cause to believe that he was not of... in a formal uniform, that he was not a formal combatant, but that he was aiding and abetting, or conspiring, with al Qaeda?

Can we accept that, that there's probable cause for that?

Mr. Katyal: --No, Justice Kennedy, for two reasons.

Justice Kennedy: I mean, in... particularly based on the CSRT hearing?

Mr. Katyal: The CSRT, to my knowledge, never asked any of those--

Justice Kennedy: But you have to--

Mr. Katyal: --questions about--

Justice Kennedy: --you have to give us--

Mr. Katyal: --uniforms or--

Justice Kennedy: --a beginning point.

You have to give us a beginning point.

Mr. Katyal: --We would love a beginning point.

And the beginning point is an Article 5 hearing, which is required by Army Regulation 190-8, in Article 5 of the Geneva Conventions.

The CSRT in no way suffices to do that.

It didn't ask those questions about, Are... you know, uniforms, and the like, to my knowledge.

Of course, the CSRT isn't in the record, so we don't really know.

The Government said, below, that it had, quote, "zero effect on this case", and didn't introduce it.

But, be that as it may, suppose that the CSRT did decide that Mr. Hamdan is an enemy combatant.

Justice Kennedy, most enemy combatants are prisoners of war.

So, if anything, all the CSRT did was affirm Mr. Hamdan's separate claim, apart from Common Article 3, to the full protection of the Geneva Conventions.

If I--

Justice Souter: And that would require a determination by a different tribunal that he was not a POW, in default of which he would be treated as a POW and be entitled to a court martial?

Is that the point?

Mr. Katyal: --Yes, Justice--

Justice Souter: Yes.

Mr. Katyal: --Souter.

If I could reserve the balance of my time.

Justice Stevens: Yes, you certainly may.

General Clement.

Argument of Paul D. Clement

Mr. Clement: Justice Stevens, and may it please the Court--

The executive branch has long exercised the authority to try enemy combatants by military commissions.

That authority was part and parcel of George Washington's authority as Commander in Chief of the Revolutionary Forces, as dramatically illustrated by the case of Major Andre.

And that authority was incorporated into the Constitution.

Congress has repeatedly recognized and sanctioned that authority.

Indeed, each time Congress has extended the jurisdiction of the court martials, Congress was at pains to emphasize that that extension did not come in derogation of the jurisdiction of military commissions.

And in its most recent action, Congress clearly did not operate as somebody who viewed the military commissions as ultra vires.

They offered no immediate review, and no review at all for charges resulting in a conviction of less than 10 years.

Of course, even more clearly, Congress's most recent action made it clear that the courts no longer have jurisdiction over preenforcement challenges.

And it's to that I'd like to turn first.

Justice Stevens: But let me just ask this question, Mr. Clement.

What sources of law have the commissions generally enforced over the years, beginning with George Washington and so forth?

Just Army regulations or American law or foreign law?

What are the basic sources of law that they can enforce?

Mr. Clement: Well, what I would say, Justice Stevens, is, they basically enforce the laws of war.

At times, there are obviously United States sources that are relevant to that.

Obviously, if you have a field manual or something that says specifically that certain offenses are triable under the law of war, that would be very instructive in the tribunals.

In certain situations that I don't think are principally relevant here, you might also have war courts that were set up to deal with municipal offenses.

But that's not what we have.

And then, they would look to U.S. law.

Justice Stevens: And what we have here is enforcement of the laws of war.

Mr. Clement: That is right.

And, of course, in this context, you have a controlling executive act in the form of the regulations themselves that make it clear that the executive views things like conspiracy to violate the laws of war to be actionable under the laws of war.

Now--

Justice Stevens: If... just one hypothetical.

Assume that the laws of war do not prohibit conspiracy.

Just assume... I know you disagree with it.

Could the President, by his action, add conspiracy as a triable offense by a commission?

Mr. Clement: --I think if you did that, Justice Stevens, it would present the very difficult question that this Court has never squarely addressed, which is, Does the President have some authority to try, by military commission, beyond that which Congress has joined him in?

Obviously, Article 21 of the UCMJ gives Congress's sanction to any military commissions, to the extent they try crimes that are triable by the law of war.

So, in that sense, I think, as long as this Court construes consistent with over 100 years of United States tradition and history, the conspiracy to commit a law... a violation of the law of war is a war crime, then you don't have to reach that--

Justice Stevens: Well, if--

Mr. Clement: --difficult issue.

Justice Stevens: --It's easy if it is a war crime.

I'm trying to wrestle with the question of, If we concluded that it were not, and just... and I'm asking... can the question add an additional crime that the commission could try?

Mr. Clement: I think he--

Justice Stevens: You think he could.

Mr. Clement: --I think we would take the position that he could, as a matter of pure constitutional power.

I don't think, though... he is not active in this case on the theory that conspiracy is outside of the laws of war.

He's acted inconsistent with 150 years of tradition.

Justice Stevens: So, the basic position you're asserting is that we have... that the... this commission intends to try a violation of the laws of war.

And do the laws of war then have any application to the procedures that they have to follow?

Mr. Clement: Yes.

I mean, in the sense that I think that if there were... there... the other side is certainly able to argue, before the military commissions, that certain procedural provisions or the like are prohibited by the law of war or give them some greater entitlement.

Now, as this Court has recognized in cases like Madsen, I don't think that the law of war is... you know, extensively regulates procedure.

And, indeed, as the Madsen Court recognized, Congress's approach to military commissions has been radically different than its approach to court martials.

In court martials, they regulate every jot and tittle of the procedure.

And if the UCMJ and its provisions for court martials applies, then the defendants are going to get not just Miranda, but Miranda plus, and a whole panoply of rights.

If, on the other hand, this Court follows the precedents in Madsen, it will recognize that only those nine provisions of the UCMJ that expressly reference military commissions will apply, and the rest is left to a much more common law, war court approach, where there's much greater flexibility.

Justice Souter: What do you... what do you make of the argument that Mr. Katyal just alluded to, that if you take the... as you do... take the position that the commissions are operating under the laws of war, you've got to accept that one law of war here is the Geneva Convention right to a presumption of POW status unless there is a determination by a competent tribunal otherwise, with the... among other things, the rights that that carries.

I mean, how... do you... why not... why don't you go from the frying pan into the fire, in effect, when you take the position that the laws of war are what the tribunal is applying?

Mr. Clement: Well, Justice Souter, I don't think there's any frying pan effect or fire effect, precisely because what you have with respect to the claim that the Geneva Conventions applies... okay, that claim could be brought to the military commissions, but they could adjudicate it and say that the Geneva Conventions don't apply here, for any number of reasons.

And I think that this idea that there needs to be an Article 5 proceeding--

Justice Souter: Well, but you're... are you saying that the... that the commission will adjudicate POW status under the Geneva Convention?

In other words, are you stipulating that the Geneva Convention does apply, so that the only argument left between you and Mr. Katyal would be whether the commission itself was a competent tribunal to make the determination?

Is that your position?

Mr. Clement: --Well, I don't think so, Justice Souter.

I mean, I think the disagreement is more fundamental than that.

What I would say is, a claim could be brought in the tribunal that the Geneva Conventions apply.

Now, just because the Geneva Convention does apply--

Justice Souter: Well, do you agree that it applies as part of the law of war?

Mr. Clement: --Well, I don't think, consistent with the position of the executive, that the Geneva Convention applies in this particular conflict.

Justice Souter: But that, I guess, is the problem that I'm having.

For purposes of determining the domestic authority to set up a commission, you say, the President is operating under the laws of war recognized by Congress, but for purposes of a claim to status, and, hence, the procedural rights that go with that status, you're saying the laws of war don't apply.

And I don't see how you can have it both ways.

Mr. Clement: We're not trying to have it both ways, Justice Souter.

The fact that the Geneva Conventions are part of the law of war doesn't mean that the Petitioner is entitled to any protection under those conventions.

And--

Justice Souter: But he is entitled to make a claim under them to determine whether, on the merits, he is entitled.

Isn't that entailed by your position?

Mr. Clement: --I think it is, Your Honor, but let me just say that that's a claim that he could have brought before the CSRTs, and that is a claim he can still bring before the military commissions.

Justice Kennedy: But I have--

Mr. Clement: Lawful--

Justice Kennedy: --I have... I have trouble with the argument that... insofar as he says there is a structural invalidity to the military commission, that he brings that before the commission.

And the historic office of habeas is to test whether or not you are being tried by a lawful tribunal.

And he says, under the Geneva Convention, as you know, that it isn't.

Mr. Clement: --Well, and we disagree with those claims.

We think that most of those claims... to the extent that he thinks some procedural requirement is provided either by the Geneva Convention, if applicable... but we don't think it would be... and that argument would be made; but, if by some other, sort of, principle of the law or that a procedure is required--

Justice Kennedy: Well, it's not some--

Mr. Clement: --he could... he could make that argument.

Justice Kennedy: --procedural... it's the structural requirement of the composition and the... and the appointing origins of the court.

Mr. Clement: Well, again, I think he could... he could bring that claim.

I don't think it would be well taken by the... by the commission.

I don't think it's a valid claim.

I also don't think, if... there's any reason why that claim has to be brought at this stage in the procedure.

We think that abstention--

Justice Scalia: I thought--

Mr. Clement: --principles--

Justice Scalia: --I thought we... I thought we established, earlier... somebody told me... that, in the normal criminal suit, even if you claim that the forum is not properly constituted, that claim is not adjudicated immediately, it's adjudicated at the conclusion of the proceeding.

Mr. Clement: --Well, of course that's true.

And--

Justice Scalia: We--

Mr. Clement: --also--

Justice Scalia: --We don't... we don't intervene on habeas corpus when somebody says that the panel is improperly constituted.

We wait until the proceeding's terminated, normally.

Mr. Clement: --That's exactly right, Justice Scalia.

And this Court made clear that it doesn't intervene--

Justice Kennedy: Well, is--

Mr. Clement: --even when a U.S.--

Justice Kennedy: --is that... is that true?

If a group of people decide they're going to try somebody, we wait until that group of people finishes the trial before the Court... before habeas intervenes to determine the authority of the tribunal to hold and to try?

Mr. Clement: --Well, with respect, Justice Kennedy, this isn't a "group of people".

This is the President invoking an authority that he's exercised in virtually every war that we've had.

It's something that was recognized in the Civil War, something in the World War II that this Court approved.

Justice Kennedy: I had thought that the historic function of habeas is to... one of its functions... is to test the jurisdiction and the legitimacy of a court.

Mr. Clement: Well, but... habeas corpus generally doesn't give a right to a pre enforcement challenge.

And this Court, for example, in Schlesinger against Councilman--

Justice Scalia: To a forum that is prima facie properly constituted.

I mean, it... this is not a... you know, a necktie party.

Where it parades as a court, and it's been constituted as a court, we normally wait until the proceeding's completed.

Mr. Clement: --Well, that's exactly right, Justice Scalia.

And Congress has spoken to this precise issue in the DTA.

Whatever was the question about applying--

Justice Stevens: But, Mr. Clement--

Mr. Clement: --judge made--

Justice Stevens: --if you assume that the laws of war apply, and perhaps the treaty applies, isn't the issue whether this is a "group of people", on the one hand, or a "regularly constituted court", on the other?

Mr. Clement: --Well, I mean, I don't really think there's any serious dispute about which it is.

I mean, this is something that is--

Justice Stevens: Well, they argue very strenuously that this is really just a "group of people"--

Mr. Clement: --Well... and if this Court--

Justice Stevens: --because it's not a "regularly constituted court" within the meaning of the treaty.

Mr. Clement: --Well, Justice Stevens, I think that even if a court might have had jurisdiction to hear just that issue and--

Justice Stevens: Yes.

Mr. Clement: --nothing else before the DTA, Congress has now spoken, and Congress has made it clear that, whatever else is true, these military commission proceedings can proceed, and exclusive review can be done after the fact, after conviction, in the D.C. Circuit.

Justice Souter: Exclusive review of what?

I don't see that the... that the... that the DTA preserves a right to review of the very issue that they want to raise here.

Mr. Clement: Well, I think I disagree, at least--

Justice Souter: They can... they can... they can review their enemy combatant determination.

They can review the consistency of the procedure of the court with whatever law applies.

But I don't see that there is a clear reservation of right to get to the very basic question of the... of the constitution of the court itself.

Mr. Clement: --Oh, I disagree, Justice Souter.

E(3) specifically preserves the claim that the commissions were not, and the procedures were not, consistent with the Constitution and laws of the United States--

Justice Souter: So, you're reading--

Mr. Clement: --to the extent--

Justice Souter: --procedures--

Mr. Clement: --they're pledgeable.

Justice Souter: --to encompass the very act constituting the court itself?

Is that the Government's... I mean, are you going to go on the record--

Mr. Clement: Sure, if they want to come in and argue that there is a violation of Article 21 of the UCMJ, or Article 36 of the UCMJ, after their conviction, they are perfectly free to do that--

Justice Breyer: It's hard for me to--

Mr. Clement: --under E(3), but--

Justice Breyer: --see that with the language of this, because the language that you're talking about refers to "such standards".

(a).

That military order is an order of August 31st which talks about procedures.

It's not the order that sets up the commission, which is an order issued the preceding November.

Rather, this language seems to mean what it says.

But even if it didn't... even if it didn't, wouldn't your reading raise a terrifically difficult constitutional question, if not this case, in cases that are pending right now, where prisoners in Guantanamo are claiming that they have not yet had the CSRT hearing, they're claiming, one or two,

"We had it, and we're still here. "

"We won, but we're still here. "

They're claiming,

"We don't want to be sent back to Qatar. "

And they're claiming, some, that they were tortured.

All right?

Now, if we could avoid the case with your interpretation here, and avoid that constitutional question... we can't avoid it.

So, my question is, one, How is what you're arguing consistent with the language I quoted?

And, two, How could it, if we accepted your interpretation, possibly avoid the most terribly difficult and important constitutional question of whether Congress can constitutionally deprive this Court of jurisdiction in habeas cases?

Mr. Clement: --Well, Justice Breyer, let me answer both pieces of that.

I certainly think that such standards and procedures to reach the final decision are consistent with the Constitution and laws of the United States.

There is a reference to the first military order.

I believe there's also a reference to any other subsequent orders implementing that.

All of that, together, implements the November 13th order.

So, I would think that there is... it is very easy to read this language to allow any challenge that is being brought here, with the possible exception of the treaty challenge.

Justice Ginsburg: Would you--

Mr. Clement: And--

Justice Ginsburg: --Would you--

Mr. Clement: --I think the language is capacious enough if the treaty challenge is what you thought was very important, the D.C. Circuit, at the end of the day, could decide whether or not there is a requirement that the treaty challenge be brought.

Justice Ginsburg: --General Clement, if you can straighten me out on the piece that you read about

"consistent with the Constitution and laws of the United States. "

I thought that it was the Government's position that these enemy combatants do not have any rights under the Constitution and laws of the United States.

Mr. Clement: That is true, Justice Ginsburg.

And Congress, in this Act, was very careful to basically write without prejudice to the answer to that question.

So, we would have that argument.

The other side would have their argument.

What this Act provides that we don't have any argument on, that was something that wasn't before this Court, say, in the Rasul decision, was the fact that the procedures that the military has promulgated are going to be enforceable under this exclusive review provision.

So, there at least will be some law to apply now under this exclusive review provision.

Justice Ginsburg: But what--

Mr. Clement: So, that--

Justice Ginsburg: --But how will the question, whether the laws in the United... and Constitution... of the United States, whether these petitioners have any claim to state under the laws and Constitution of the United States?

Because as I read... the review that's provided doesn't open up that question.

It's a very narrow review that's given to the D.C. Circuit.

Mr. Clement: --Well, Justice Ginsburg, I certainly think that Petitioner will be up there arguing that Eisentrager is no longer good law, not just as a statutory matter, as a constitutional matter, and those arguments will be made.

Without respect to that, certainly the arguments about Article 21 and Article 36, that are very much at the centerpiece of their argument here today, would also be available to the D.C. Circuit.

And if there's some constitutional requirement that that review be slightly broader or slightly narrower, that seems like something that can better be adjudicated in the context of a concrete case at the point that that review is sought.

Justice Ginsburg: Is there--

Mr. Clement: But one thing I--

Justice Ginsburg: --Is there... is there any review in this Court, following the D.C. Circuit, either the original classification or the conviction... is there... does this Court have any part in the scheme?

Mr. Clement: --Yes, Justice Ginsburg, there would be 1254 review.

Once the provision is in the Court of Appeals, then the case would be under... under E(3), the review provision... then the case would be in the Court of Appeals for purposes of this Court's 1254 jurisdiction.

Justice Breyer: I still don't see the answer to my question, which had two parts.

As to the language, (a) which is what's cross referenced, refers to Military Commission Order Number 1, August 31, 2005, or any successor military order.

The order, as I understand it, that's created the commission by the President, is an order which was November 13, 2001, not a successor to 2005.

But leaving the language aside, what I'm mostly interested in, because I think your interpretation inevitably creates it, is, What is the answer to the claim that it is not constitutional for Congress, without suspending the writ of habeas corpus, to accomplish the same result by removing jurisdiction from the courts in a significant number of cases, even one?

Mr. Clement: Well, Justice Breyer, let me answer that question in two parts, which is to say that I think that this case, and most of the cases, don't raise a serious Suspension Clause problem, for the simple reason that I think deferring review or channeling it to the Court of Appeals does not amount to a suspension.

Justice Breyer: I listed four sets of cases that I don't see how you could possibly shoehorn into E(2) and E(3), even if you are able to shoehorn this one.

And my language was designed to make you see how difficult it is.

Mr. Clement: Well, but--

Justice Breyer: But I listed four that I don't see how anybody could shoehorn into that.

Mr. Clement: --But, with respect, Justice Breyer, I think that cuts both ways, because I don't think there's any particular interpretation of these provisions on the table before this Court that's going to eliminate those potential Suspension Clause issues.

Justice Souter: --But the whole point, it seems to me, of the argument, is, Should we not consider the significance of those very questions, because, if we don't, as Justice Breyer said, at the end of the day, as you describe it, we will have to face the serious constitutional question of whether Congress can, in fact, limit jurisdiction without suspending habeas corpus?

The whole point is to grapple with them now, and to... and to treat them in a way that allows for this adjudication, so that we avoid this constitutional difficulty tomorrow.

Mr. Clement: Well, Justice Souter, first of all, I would think general principles of constitutional avoidance would say deferring the constitutional question is a good thing, not a bad thing.

The one point I would--

Justice Souter: We may not have to reach the constitutional question.

That's what... that's what constitutional avoidance hopes for.

Mr. Clement: --Right.

But I don't see any argument on the other side that's really a constitutional avoidance argument.

Their principal argument is--

Justice Breyer: No, the argument--

Mr. Clement: --don't apply this--

Justice Breyer: --the other side... if you want the argument, the other side is, there are several hundred cases already pending.

And, therefore, if we accept your interpretation, we know we have to reach the constitutional argument.

If we reject your interpretation, since all these cases, several hundred of them, are already there, it might be, new ones won't be brought.

But, of course, "new ones won't" might.

And, therefore, what is your answer to--

Mr. Clement: --Well--

Justice Breyer: --the question that this is unconstitutional... if not here, in other places?

Mr. Clement: --And, Justice Breyer, what I would say is that our interpretation basically provides for pending claims exactly the way that Congress did.

With respect to any future claims that might be brought, there may or may not be a constitutional question.

And if I could turn to our interpretation of the DTA, it's the only one that really, I think, reads the various provisions in the statute in harmony.

Now, this Court's decision in Bruner, and in a host of other cases, says that when Congress eliminates jurisdiction, pending cases fall, unless there's a savings clause.

The closest thing to a savings clause in the statute, in E(1), is the provision that says 1005> ["].

And I think that's important, because if Congress wanted to put in a savings clause of the kind that this Court seems to refer to in Bruner, and that would certainly be consistent with Senator Levin's intent, it would have been very easy.

Instead of saying 1005> ["], they could have said "except for pending cases".

The choice is important, because what does Section 1005 provide?

It provides the exclusive review in E(2) and E(3).

And then, H(2), in very complementary fashion, says that, just in case there's any question about it, those provisions on E(2) and E(3) apply to pending claims governed by those sections.

I think every word's important.

It doesn't say "pending cases", it says "pending claims".

Congress understood two important things.

There were no cases currently pending under E(2) and E(3), because Congress was creating E(2) and E(3).

It also knew that most of the cases before the D.C. Courts had some claims that were pure challenges to the final ccert determination and other claims.

So, what H(2) says is... H(2) says that, to the extent those cases involve claims governed by E(2) and E(3), they are preserved under E(2) and E(3); otherwise, this... there's no savings clause that covers those claims, and their jurisdiction is removed.

The--

Justice Stevens: May I ask--

Mr. Clement: --retroactivity aspect... I'm sorry.

Justice Stevens: --May I just ask this, to clarify?

When they do take some jurisdiction of some habeas corpus claims, do you defend that, in part, as a permissible exercise of the power to suspend the writ, or do you say it is not a suspension of the writ?

Mr. Clement: I think both, ultimately.

I mean, I don't think--

Justice Stevens: Well, it can't be both.

[Laughter]

Mr. Clement: --Well, I... I don't see why I can't have alternative arguments here, as for anywhere else, Justice Stevens.

We think that Congress, in this action, did not do anything that triggers the suspension of the writ.

But if you think that--

Justice Stevens: Well, that--

Mr. Clement: --it did, I think that--

Justice Stevens: --that's your position, they did not suspend the writ.

You're not arguing that it's a justifiable suspension of the writ.

Mr. Clement: --Well, I think the terms of the Suspension Clause would be satisfied here because of the exigencies of 9/11.

If the question is, Am I taking the position that Congress consciously thought that it was suspending the writ?

then I would say no.

Justice Stevens: Okay.

Mr. Clement: And if you think, in order for there be to a... to be a valid suspension, Congress has to do it consciously, then I think you could see why the arguments are mutually exclusive.

My view would be that if Congress, sort of, stumbles upon a suspension of the writ, but the preconditions are satisfied, that would still be constitutionally valid.

So, I think that may be the disagreement.

Justice Souter: Isn't there a--

Mr. Clement: I mean--

Justice Souter: --Isn't there a pretty good argument that a suspension of the writ of Congress is just about the most stupendously significant act that the Congress of the United States can take?

And, therefore, we ought to be at least a little slow to accept your argument that it can be done from pure inadvertence?

Mr. Clement: --Well, a couple of things, Justice Souter.

I would agree with you if what we were talking about is suspending the right as to citizens within the Continental United States, but all Congress did here is restore the law to the understanding of the law that had prevailed for 200 years.

Now, this Court obviously took a different view--

Justice Souter: If we have to--

Mr. Clement: --in Rasul.

Justice Souter: --get to the issue, in accordance with Justice Breyer's question, whether or not the writ of habeas corpus was suspended, you are leaving us with the position of the United States that the Congress may validly suspend it inadvertently.

Is that really your position?

Mr. Clement: I think at least if you're talking about the extension of the writ to enemy combatants--

Justice Souter: The writ is the--

Mr. Clement: --held outside--

Justice Souter: --The writ is the--

Mr. Clement: --the territory of the United States--

Justice Souter: --Now, wait a minute.

The writ is the writ.

Mr. Clement: --Okay.

Justice Souter: There are not two writs of habeas corpus for some cases and for other cases.

The rights that... the rights that may be asserted, the rights that may be vindicated, will vary with the circumstances, but jurisdiction over habeas corpus is jurisdiction over habeas corpus.

And it seems to me that the position you have taken is that if, at the end of the day, we have to reach the question that Justice Breyer described, the answer to that question may be,

"Yes, the writ of habeas corpus was suspended by inadvertence. "

"Congress did not intend to do it. "

Is that really your position?

Mr. Clement: No, Justice Souter.

There's no... my point is not inadvertence.

It's whether they have to say or incant any magic words that they are now invoking the power--

Justice Scalia: They could surely--

Mr. Clement: --to suspend the writ.

Justice Scalia: --set forth a procedure which amounts to a suspension of the writ.

And if that procedure is done in a state of insurrection or invasion, that would constitute a suspension of the writ, even though they don't say,

"We are suspending the writ of habeas corpus. "

Mr. Clement: That is my point.

And there's nothing inadvertent here--

Justice Souter: Is it also your point when there is no insurrection or invasion?

Mr. Clement: --Well, then any effort to suspend the writ would be invalid.

But this is not a case where there's any question of--

Justice Souter: Perhaps that's something that a court ought to inquire into when it gets into the question of congressional intent.

Mr. Clement: --I don't think--

Justice Souter: And how specific--

Mr. Clement: --I disagree with that.

Justice Souter: --that intent--

Mr. Clement: I guess my point would--

Justice Souter: --and how specific that intent must be.

Mr. Clement: --I don't think I disagree with that.

But there's two separate points here, is that... one is, Does Congress have to say,

"We are now suspending the writ under our Suspension Clause? "

And I don't think there's any call to say that they have to do that.

Obviously, in cases like St. Cyr, this Court has been very clear to say,

"Congress obviously can't stumble upon the Habeas Clause. "

Justice Souter: Okay.

Let's--

Mr. Clement: But that's not--

Justice Souter: --Let's--

Mr. Clement: --at issue here.

Justice Souter: --Let's assume we do not have a magic words requirement.

Given the significance of suspending the writ of habeas corpus, should we not have a pretty clear statement requirement?

Mr. Clement: Yes.

And there's no question that Congress, here, tried to amend the habeas statute.

This is not like St. Cyr, where they didn't go after 2241 in terms.

There's nothing subtle about this statute with respect to the clarity with which it speaks--

Justice Souter: There may be nothing--

Mr. Clement: --to the habeas statute.

Justice Souter: --subtle about the statute, but there is something very silent about the statute as to whether Congress understood that it was... that it was acting under its authority to suspend the writ of habeas corpus.

And, at the very least, that unclarity is manifested by the effective date provision.

H(1) doesn't have the language that it had before the amendment.

Therefore, it seems to me, there would be some difficulty, if we have to get to the question, in finding a clear intent on the part of Congress to suspend the writ under its Article I power.

Mr. Clement: With respect, Justice Souter, I don't think making a retroactivity analysis or holding here is going to spare you the trouble of dealing with the Suspension Clause argument.

I mean, in St. Cyr, it's worth noting that this Court addressed the specificity with which the statute applied separately from the retroactivity question.

Here, to take the first question first, there's no question, this wolf comes as a wolf.

Congress was going after 2241.

It clearly did that.

All of E(1)--

Justice Souter: It comes--

Mr. Clement: --is a new subsection.

Justice Souter: --It comes as a wolf under H(2), but the wolf is silent under H(1), and the wolf used to speak under H(1), and it had its teeth taken out.

[Laughter]

Mr. Clement: With respect, Justice Souter, H(1) never spoke to the question.

An earlier provision, D(1), had very different language, in an earlier provision of the statute, that spoke with greater clarity.

I'll grant--

Justice Souter: And that's--

Mr. Clement: --you that.

Justice Souter: --gone.

Mr. Clement: That's gone.

But just because Congress could have made it clearer doesn't mean that the Government loses here.

Justice Souter: The very fact--

Mr. Clement: Senator--

Justice Souter: --that Congress chose to remove the clarity of the prior provision is of no significance?

Mr. Clement: --It's not of dispositive significance, Justice Souter.

Justice Scalia: I don't think Congress chose to do that.

One house of Congress chose to do it.

We don't know what the other house thought, and we don't know what the President thought.

Mr. Clement: That's a very fair point, Justice Scalia.

But even to get at the very... what happened here is very analogous to the legislative evolution this Court found unilluminating in Martin against Haddocks.

There, the attorneys fees provision you had before it... before you, used to be in 802 of the statute, which was expressly applicable to pending cases.

Congress moved it out into its own separate section that didn't expressly apply to pending cases.

Justice Souter: What--

Mr. Clement: This Court did not--

Justice Souter: --Whatever may be the standard of due care for courts in reviewing acts of Congress with respect to attorneys fees, it doesn't reach the level that, it seems to me, is incumbent on us when we're talking about suspending the writ of habeas corpus.

Mr. Clement: --I don't disagree with that, Justice Souter, but there's no special habeas retroactivity law.

There is a special rule, under St. Cyr, for habeas, but we amply satisfy that, because--

Justice Souter: Can--

Mr. Clement: --22--

Justice Souter: --Yes.

Mr. Clement: --this whole thing is a 2241(e) new section.

So, this is all about amending habeas.

Justice Ginsburg: May I ask you another question about the clarity with which Congress spoke?

This law was proposed and enacted some weeks after this Court granted cert in this very case.

It is an extraordinary act, I think, to withdraw jurisdiction from this Court in a pending case.

Congress didn't say, explicitly, it was doing that.

It hasn't done it, as far as I know, since McArdle.

But there Congress said,

"We are withdrawing jurisdiction in this very case. "

They didn't say that here.

So, why should we assume that Congress withdraw our jurisdiction to hear this case once the case was already lodged here?

Mr. Clement: I think the answer, Justice Ginsburg, is that, you're right, this isn't like ex parte McArdle.

What made ex parte McArdle so unique is, Congress went after this Court's appellate jurisdiction, and that alone.

What Congress has done here, which is not that unusual, and it's certainly happened several times since McArdle, is that the Court has modified the jurisdiction of all the courts, and that has had the effect of eliminating jurisdiction in this Court over a pending case.

Justice Kennedy: Mr.--

Mr. Clement: That's happened any number of times.

The Guagliardo cases that we cite in our brief provide one example.

And as Justice Holmes made the point there, it's not a situation where you go after this Court's appellate jurisdiction, as such.

There, it's a situation, as Justice Holmes put it, that, when the root is cut, the branches fall; when the District Court loses jurisdiction over these cases, then this Court loses jurisdiction.

But it's much less of an affront to this Court than the kind of statute that Congress passed in the McArdle situation.

Justice Kennedy: --Mr. Clement, I, for one, have lost track of your time.

I'm interested in your arguments on the... on the legitimacy and the regularity of these commissions.

Mr. Clement: And if I could talk to various aspects of that, I'm happy--

Justice Breyer: Can I put the--

Mr. Clement: --to do so.

Justice Breyer: --that issue in... don't... ignore my question, which is the same as Justice Kennedy's, if it doesn't help.

I'm trying to focus this.

And, in my mind, I take their argument as saying,

"Look, you want to try a war crime. "

"You want to say this is a war crimes tribunal. "

"One, this is not a war, at least not an ordinary war. "

"Two, it's not a war crime, because that doesn't fall under international law. "

"And, three, it's not a war crime tribunal or commission, because no emergency, not on the battlefield, civil courts are open, there is no military commander asking for it, it's not in any of those in other respects, like past history. "

"And if the President can do this, well, then he can set up commissions to go to Toledo, and, in Toledo, pick up an alien, and not have any trial at all, except before that special commission. "

Now, I've tried to summarize a whole bunch of points for you to get at, as you wish.

Mr. Clement: Let me try to hit a couple--

[Laughter]

Let me try to hit a couple of highlights.

Justice Scalia: I'll be interested in your answer, if you can get it out.

[Laughter]

Mr. Clement: Let me try to hit a couple of highlights.

This is much more of a call for military commissions in a real war than, certainly, the use of military commissions against the Medoc Indians or any number of other instances in which the President has availed himself of this authority in the past.

I think the events of 9/11 speak to the fact that this is a war where the laws of war are involved.

As to whether or not the law of war encompasses the crime of conspiracy to violate the laws of war, we think that is clearly established.

That is something that the United States treated as a valid war crime in the Civil War.

That is something that the United States treated as a valid war crime in World War II.

I would invite you, as to the former, to look at Winthrop's Treatise, page 839, note 5.

He makes it very clear that those conspiracies are not just conspiracies of municipal law, what he called "of the first class", but they included the second class, which are classic war crimes.

The most prominent examples are the Lincoln conspirators and a conspiracy at Andersonville Prison to deny POWs their lawful rights.

Clearly, those are classic war crimes.

In World War II, of course, conspiracy was also charged.

And this Court saw it in the Kearing case, although it didn't reach that element of the charge.

Now, I think it's very important to understand that history, because the most relevant text on this question is Article 21's reference to the law of war.

And as this Court was crystal clear in the Madsen case, what that reference is, is Congress's effort, when it extended the jurisdiction of the courts martials to include more and more crimes, that it didn't want to crowd out the military jurisdiction of the military commissions just because they had concurrent jurisdiction.

And this Court, in Madsen, said what Congress authorized was the jurisdiction of the military commissions as it existed in 1916, and then presumably again when it passed Article 21 of the UCMJ, the jurisdiction that existed as of 1950.

Well, in 1960, you could try conspiracies to violate the law of war.

In 1950, you could violate conspiracies to the law of war.

So, now let me try to get to the procedures that would be applicable.

The argument that's made here is an extraordinary one, that Article 36, when it says that military commissions can deviate from the laws of evidence, to the extent the President determines necessary, except that it must apply to the... comply with the provisions of the UCMJ.

Clearly, what that provision means is the provisions of the UCMJ that specifically impose requirements on the military commissions.

And there are nine of them.

And they impose some... certain minimum rules.

But to say that that provision incorporates all of the UCMJ provisions that put much higher requirements on courts martials, is to violate this Court's Madsen decision, which clearly recognized that there were differences between court martials and military commissions.

And, although that was an act... that was a case that addressed the articles of war, Article 38 is identical to Article 36(a) of the UCMJ, so that's not a difference that matters.

And, if I could say, the other thing is, that just violates any normal principle of statutory construction, because then the nine express references to the military commissions are rendered utterly superfluous.

Clearly, what Congress had in mind was that,

"You must comply with those provisions of the UCMJ that apply specifically to the military commissions. "

If I could make this point clear, because I think it's helpful in reading the past cases, what made Yamashita and other of the World War II cases so difficult is that the President in that situation constituted commissions that violated even the procedural rules that the articles of war made specifically applicable to the commissions.

And so, if you look, for example, at Justice Rutledge's dissent in the Yamashita case, he was at pains to emphasize that very few of the provisions of the articles of war applied to military commissions.

And the difficulty was that the... that the military, in that case, was not complying with even those provisions that specifically applied to military commissions by terms.

That's not an issue here.

These military commissions comply with all of the provisions of the UCMJ that are specifically addressed to military commissions.

So, I just don't think there's a procedural problem here.

The import of extending Article 2 jurisdiction to new individuals doesn't mean that anything in Yamashita, as to this point, is really no... is still relevant.

What that does is, it takes away the argument... to the extent that these individuals are within Article 2, it takes away the argument that the President doesn't have to even comply with those provisions of the UCMJ that are expressly directed to the military commissions.

But that's not an argument we're making here.

The argument on the other side of this is really that when Congress specifies that nine rules apply to military commissions, and everything else applies to courts martials, that somehow all of them have to apply to the military commissions.

And as Justice Scalia's question alluded to earlier, in order to accept that argument, you really have to believe that what Congress was doing when it was carefully preserving the military... the jurisdiction of the military commissions was simply to preserve the option of calling something that had to comply with every single statutory requirement in the court martials.

They got to label it something else.

They got to label it a "military commission".

Clearly, if you look at the legislative history of Article of War 15 and Article 21, as they were developed in the Madsen decision and discussed in the authoritative testimony of General Crowder, that's exactly what wasn't going on.

They wanted to make sure that this argument, that as we get more and more things that come within the military jurisdiction of the courts martials, that somehow we're cutting back on the military commissions.

That's not what they wanted.

The next thing that may be lurking in the question is the question of, What about the Geneva Conventions?

And I think that, very importantly, we have arguments that we have surfaced in our briefs that the Geneva Conventions do not provide relief in these circumstances, that they do not apply, for various reasons.

But the first question, at the outset, is whether this Court is going to overrule that portion of Eisentrager that basically said the Geneva Conventions are not judicially enforceable.

Now, of course, this Court can say,

"That was the '29 Convention, and this is the 1949 Convention. "

But, as the Court of Appeals correctly determined--

Justice Stevens: And there was a footnote dicta.

Mr. Clement: --Well, I don't think it was dicta, Justice Stevens.

If there's one thing I think the Eisentrager decision has, it's an awful lot of alternative holdings.

And--

[Laughter]

--Justice Black was concerned about that, and said,

"What are you doing reaching the merits when you have, you know, said there's no jurisdiction? "

But the Court, as a holding, said that the Geneva Conventions of 1929 did not apply.

There aren't any material differences about 1949 Conventions.

And I ask you to think about why that makes sense.

Because the 1949 Geneva Conventions were being negotiated contemporaneously with this Court's decision in Eisentrager.

And even if you think the rule is different today, at that point, Justice Jackson was quite correct that the idea that an enemy combatant would get access to the domestic courts of a detaining power was absolutely absurd.

And so, what the... the framers of the Geneva Convention recognized that they were dealing with a group of people that were uniquely vulnerable.

So, they went to great pains to make sure there were mechanisms to enforce their rights.

And so, there are various provisions for party to party enforcement.

There are various provisions for getting the protecting powers, which is now a role basically taken over by the ICRC, to get access to the detainees and to provide other mediating effects.

So, what you have is a treaty that's really written against the backdrop, that of course these people aren't going to be able to get to the domestic courts of their detaining... the detaining power.

If you look at the treaty, and read it as a whole, I think it's almost impossible to read it as applying judicially enforceable rights in the domestic courts.

The constant--

Justice Breyer: Does it... does it... does it define the contours, along with other relevant international sources, of the meaning of the statutory words "laws of war".

He's being charged with a violation of the laws of war in both statutes, like... what is it +/?

2240... 2441, in Quirin.

To get the meaning of that term, the courts looked to other law.

Justice Kennedy: And, in particular, why isn't he part of Common Article 3 under the Geneva Convention, as Judge Williams found?

That's part of the same question.

Mr. Clement: --Well, Judge Williams found that, you know, Common Article 3 was applicable here.

I don't know why that the Common Article 3, and nothing else would be judicially enforceable.

And I don't read his opinion as saying otherwise.

I think he still took the view that the entirety of the Geneva Conventions were not judicially enforceable.

Now, I take it that the thrust of the question, though, is, Don't these Geneva Conventions, even if they're not applicable for one reason or another, don't they form the background of some sort of customary international law that influences what... how we should interpret the word "law of war" in the statute?

And I would say, at a minimum, if there is some role for customary international law here, it has to, consistently with The Paquete Habana case, take into account and give due weight to a controlling executive act.

Here, the President has determined, for example, that conspiracy is an actionable violation of the law of war that can be tried in front of these commissions.

He's made that clear.

He's also made clear that these procedures are sufficient and supply the rights.

And so, I think that has to take... be taken into account into the analysis.

I think, also, since Article 21 is the most logical place you would... you would look to any of this as the law of war, I think it's important to understand that I would read that as incorporating some question about what kind of crimes can be brought in this jurisdiction.

Justice Breyer: Is it the President, and not Congress, defining the content of the law, the criminal law, under which a person will be tried?

Isn't there a "separation of powers" problem there?

Mr. Clement: I sure hope not, Justice Breyer, because that's been the tradition for over 200 years.

And Article 21 itself makes this clear, because what does it say can be tried by military commission?

It says anything that's made a violation of statute or law of war.

Justice Stevens: But I don't--

Mr. Clement: So--

Justice Stevens: --think, Mr. Clement, the 200 years have approved of his adding additional crimes under the law of war.

I mean, he has never... I don't think we have ever held that the President can make something a crime which was not already a crime under the law of war.

Mr. Clement: --I think that may be true, Justice Stevens--

Justice Stevens: Yes.

Mr. Clement: --certainly as to the Article--

Justice Stevens: And one--

Mr. Clement: --21 point.

Justice Stevens: --of the issues is whether he's done that here--

Mr. Clement: But--

Justice Stevens: --I think.

Mr. Clement: --But there's no innovation in trying conspiracy as a violation of the law of war.

Justice Stevens: If you're right on that, you're right on the ultimate question, too.

Mr. Clement: Well, I hope so, because there's really no question that conspiracy has been charged.

And, like you said, I would encourage you to look at footnote 5 on page 839 of the Winthrop Treatise; and this Quirin case had, also, that charge brought before it.

Colepaugh against Looney, which is a Tenth Circuit case from World War II, involved the charge of conspiracy.

Now, they're going to come up here and tell you,

"Well, but that wasn't... you know, in Colepaugh and Quirin, that wasn't the one that the Court settled on. "

But that doesn't dispute the fact that that is a crime that has traditionally been charged as a violation of the law of war.

Justice Kennedy: Your time is... why isn't harm done on a uniquely vulnerable individual that... you used the phrase "uniquely vulnerable individuals" were involved in another case, but not here.

Why not here?

Mr. Clement: Well, he's... I mean, I... I'm not saying that he isn't somebody who is protected by the laws of war, the customary laws of war.

I think that he is protected by those.

I don't think he's protected by the Geneva Conventions, but that's largely because he chose not to comply with the basic laws of war.

He's obviously--

Justice Scalia: I thought... I thought... I thought you said all prisoners of war were uniquely vulnerable... I thought that was the point you were making--

Mr. Clement: --That is the point--

Justice Scalia: --and had... needed--

Mr. Clement: --that I'm making--

Justice Scalia: --needed protection of the... of the supervising powers, or whatever they're called.

Mr. Clement: --Right, but not the domestic courts of the detaining power.

And if he's any different than a usual prisoner of war, it's because he's disentitled himself to some protections by what has been determined by the ccert protections.

Let me just address, if I could, the idea that having provided him with ccert, we now have to provide him with an Article 5 hearing.

The ccert provisions provide all of the protections, and then some, that were normally provided in an Article 5 hearing.

They were focused on the question that is relevant in this dispute, which is whether or not somebody is an innocent civilian or an unlawful enemy combatant.

Nobody has a claim here that they were part of the uniformed al Qaeda division that complied with all of the laws of war, such that they are entitled to POW status.

The POW unlawful enemy combatant line is not one that really needs to be policed in this conflict.

The serious concern... and it was his claim when Petitioner walked into Federal Court in Washington... he said,

"I am not an enemy combatant. "

"I did not take up arms against the United States. "

That's the claim that he brought to the ccert, the ccert rejected.

For these purposes, at this stage in the litigation, that ought to be enough to allow the proceeding to go forward in front of the military commission.

One of the defenses in the military commissions is lawful combatancy immunity.

He can make the argument that he wants to make in front of the commissions.

If the commission rejects the argument, then there will be review of that decision in the Court of Appeals on a concrete record.

This Court can then address that under 1254.

The use of military commissions to try enemy combatants has been part and parcel of the war power for 200 years.

Congress recognized it in 1916 in the Articles of War, then again, after World War II, in the UCMJ.

This Court recognized it in a host of cases, not just Quirin, but Yamashita, Eisentrager, and, most clearly, in Madsen.

Since that is such an important component of the law of war, something that has been part and parcel of that power from Major Andre's capture to today, there is no reason for this Court to depart from that tradition.

Thank you.

Justice Stevens: Thank you, Mr. Clement.

Mr. Katyal.

Rebuttal of Neal Katyal

Mr. Katyal: It is a foundational role of this Court, as Justice Kennedy says, to test the lawfulness of tribunals, particularly executive detention.

And in the pretrial area, that's the historic role of this Court from Bereford to Quirin.

This claim is... Mr. Hamdan's claim is primarily a jurisdictional one, as both courts below found when they recognized his ability to bring this pretrial challenge, because he is not an offender under the laws of war until he obtains his Article 5 hearing, because the charge doesn't state a violation of the laws of war, which is, itself, jurisdictional, and because it doesn't follow the procedures of the laws of war, which this Court, in Yamashita, in pages 5, and, in the dissent, at page 72, recognized as jurisdictional.

Justice Stevens: I don't want to--

Mr. Katyal: Now, that was--

Justice Stevens: --I don't want to take up from your time, but have you read the footnote that the... Mr. Clement relies on very heavily?

Mr. Katyal: --With respect to conspiracy?

Yes, I have.

And I do believe the text says that they're referring to domestic offenses.

It's certainly the case that conspiracy has been tried as a violation of the laws of war at some point in the Civil War.

But that has been entirely eclipsed by the modern laws of war, which have rejected it everywhere.

And if you adopt the Government's reading, Justice Stevens, that the laws of war are frozen into time in 1916, then I believe there goes the Government's case entirely, because the thrust of the Government's case is the laws of war have to adapt to this stateless, territoryless organization known as al Qaeda.

If we're playing by 1916 rules, there is no way that this commission would have been accepted in 1916.

Now, all of those jurisdictional pretrial challenges were accepted by the courts below when the full panoply of DTA rights... when the full panoply of rights existed.

Now the DTA certainly circumscribes the scope.

We don't know whether question 1 very clearly is able to be raised after the DTA's enactment.

We certainly... question 2, as the Solicitor General has said, is not raisable.

We don't know when it can be raised, because the President can block final review for all time under the DTA.

He has the keys to the Federal courthouse.

And if you defer to this system and give the President the ability to launch all of these tribunals for 75 individuals with these charges, with these procedures, you will be countenancing a huge expansion of military jurisdiction.

Conspiracy is one of the few offenses, Justices, that has now been rejected by the laws of war internationally in tribunal after tribunal.

It's certainly never been approved by a Federal Court.

And, indeed, it has been rejected.

In Colepaugh, for example, no challenge to conspiracy was raised.

The Government's argument, in the end, it seems to me, is one that this Court rejected in Levin, because it depends, as its predicate, on the idea that the President has ultimate flexibility with respect to these military commissions, except for the nine provisions in the UCMJ which govern translators and deposition testimony.

It is inconceivable that the UCMJ, when enacted, intended to regulate military commissions with only that bare bones to it.

Indeed, General Crowder said,

"Military commissions and courts martial follow the same procedures. "

Finally, Justices, we'd just point out that the predicate of abstention is not met here.

This is not a ordinary criminal trial applying lawful ordinary procedures.

This is an ad hoc trial in which the procedures are all defined with the President.

He says the laws of war do not apply when we're talking about protecting this vulnerable individual at Guantanamo.

But then he says they do apply and permit him to charge Mr. Hamdan with the one offense which is rejected entirely at international law.

It was a great American patriot, Thomas Paine, who warned,

"He who... that would make his own liberty secure must guard even his enemy from oppression, for if he violates that duty, he establishes a precedent that will reach unto himself. "

That's what we're asking you to do here, just enforce the lawful uses of military commissions and the historic role of this Court.

Thank you.

Justice Stevens: Thank you, Counsel.

The case is submitted.

Attribution:

The Oyez Project

Featured:

Day v. McDonough - Oral Argument

Fri, 09 Jan 2009 14:48:57 +0000

Case:

Day v. McDonough

Media File:

04-1324_20060227-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of J. Brett Busby

Chief Justice Roberts: We'll hear argument next in 04-1324, Day versus McDonough.

Mr. Busby.

Mr. Busby: Mr. Chief Justice, and may it please the Court--

The State does not dispute that it waived the affirmative defense of limitations by failing to raise it in the District Court and by conceding in its answer that Day's petition was timely.

Yet, nearly a year into the case, after the parties had briefed the merits, the magistrate judge not only raised an argument that the petition was untimely, he actually imposed the State's limitations defense and dismissed the case, despite the State's procedural default and contrary concession.

That was error, for two reasons.

First, it violates the general principle of the adversary system in the civil rules that it's error to impose a forfeited limitations defense sua sponte, and the statutory text in rules have confirmed that this principle applies to habeas.

Second, the State's concession of timeliness based on full information was an express binding waiver, and it was error for the District Court to override that concession.

Justice Ginsburg: It was a computation error.

This is not a... this is not a case where the State chose to waive the statute of limitations.

It miscalculated.

Isn't that the case?

Mr. Busby: Well, there was a 1-day miscalculation, Justice Ginsburg, on the... on the 352 versus 353 days before the... Mr. Day filed his State postconviction petition.

But there's a legal dispute as to whether the days after... between the time... whether the--

Justice Ginsburg: But we're not... and we didn't take cert to decide if this claim was timely.

We are on the assumption that it was untimely.

But... and what are the consequences of the State's failing to raise that?

Mr. Busby: --Well, our position is that by expressly conceding in their petition that it was timely, that that's an express waiver.

I mean, they say that they would have... what they would have had to say was,

"We know we have a limitations defense. "

"We're expressly giving that up, that the proper standard is the intentional relinquishment of-- "

Justice Ginsburg: But the--

Mr. Busby: --"# a known right".

Justice Ginsburg: --the whole basis was the number of days that they calculated, and the magistrate said,

"Oh, they miscalculated. "

"There were more days involved. "

Mr. Busby: The... yes, under Eleventh Circuit law, the magistrate said they should have counted that additional time at the end.

Justice Ginsburg: Yes.

Mr. Busby: But this Court has said that the standard for... the standard for express waiver varies, depending on the right at stake.

It's not always intentional relinquishment of a known right, as it is with some constitutional rights.

In fact, there are several Courts of Appeals that have said when you plead... when you affirmatively plead the opposite of an affirmative defense, as they did here by saying it's timely, that that's enough for an express waiver.

And--

Justice Ginsburg: Suppose--

Mr. Busby: --this Court--

Justice Ginsburg: --Suppose the magistrate judge had said,

"I notice this error in accordance with Eleventh Circuit law, so I am going to suggest to the State that they amend their answer. "

The State certainly could... under Rule 15, if the Federal rules apply, the State could have amended its answer and done just what the magistrate judge did.

Mr. Busby: --Well, certainly, Your Honor, they could have moved to amend their answer.

We would have opposed it; and would, on remand, if the issue were to come up, on the ground that they had full information, and so that this is not an appropriate case to amend an answer.

But I agree with you that that would have been one option, and that's the way that the Third Circuit analyzes this issue in the Long case and in the Bendolph case, using the principles of Rule 15.

The Fifth... the Eleventh Circuit did not do that here.

It said that there was an obligation for the court to impose the limitations defense; it did not apply the Rule 15--

Justice Ginsburg: I--

Mr. Busby: --analysis.

Justice Ginsburg: --Did it say "an obligation", or that the court "could"?

It didn't... I didn't think it said the court "must".

Mr. Busby: It did say, Your Honor, that there was an obligation for the court to impose it to further comity, finality, and federalism, and that can be found on page 5(a) of the appendix to the petition,

"A Federal Court that sits in collateral review has an obligation to enforce the Federal statute of limitations. "

And, in fact, they quote the Advisory Committee notes to Rule 4, saying the court has the duty to screen out.

And they also expressly distinguished their precedent in Esslinger versus Davis, which relied on Granberry versus Greer, to say it was a discretionary analysis.

They said,

"We're not going to consider the discretionary issues raised in Esslinger and Granberry whether this dismissal would serve an important Federal interest. "

"We're just going to say there's an obligation to impose this, and that the District-- "

Justice Ginsburg: Where is... I see... you're referring to page 4(a) and--

Mr. Busby: --5(a), Your Honor.

Justice Ginsburg: --Yes.

Which... where is the sentence that says it... that--

Mr. Busby: The obligation is seven lines from the bottom, and it's that last paragraph, where they're distinguishing Esslinger.

And the sentence of the previous paragraph is where they say there's a "duty".

Justice Ginsburg: --I thought that that duty is in connection with Rule 4.

Mr. Busby: Yes, Your Honor, and then they... they rely on that duty to say that there is an obligation, in the next paragraph, and to distinguishing Essingler and say,

"We don't have to go through this discretionary analysis, because there's an obligation. "

And so, our position is that even--

Justice Kennedy: So, the... it's right that there's an obligation if it notices it in the first instance on its first review.

Mr. Busby: --Well, we don't necessarily agree, Your Honor, if... we don't necessarily agree that--

Justice Kennedy: And suppose, under the review proceedings, that District Court is looking at it for the first time, without yet having required a response, and he sees a statute of limitation.

I assume there's an obligation.

Mr. Busby: --Under Rule 4?

Justice Kennedy: Sure.

Mr. Busby: Well, Your Honor, if you'd look at what rule--

Justice Kennedy: I mean, if... suppose it's an open and shut violation of the statute of limitations, or barred by the statute of limitations--

Mr. Busby: --Uh huh.

Justice Kennedy: --does District Court have discretion to refer to the State for a response?

Mr. Busby: Yes, Your Honor, we would say that--

Justice Kennedy: Really?

Mr. Busby: --that they must do that, because, as this Court recognized in Pliler versus Ford, it's almost never apparent on the face of the petition--

Justice Kennedy: No, my--

Mr. Busby: --that there's an--

Justice Kennedy: --No, my--

Mr. Busby: --open and shut--

Justice Kennedy: --my hypothetical is that it is.

Mr. Busby: --Okay.

I would think that even if it were apparent on the face of the petition, that the... Rule 4 has two parts.

In the first part of it, the nonadversary screening function, only applies when the petitioner is plainly not entitled to relief.

And I think the better view of that... of that clause is... although there are some arguments in our brief that don't take this view... I... after having given it thought, I think the better view of that clause is that it does not apply to an affirmative defense that's subject to waiver or tolling, that you can't say, based on an affirmative defense that's subject to waiver or tolling, that someone is plainly not entitled to relief.

You could say, for example--

Chief Justice Roberts: Because the other... because the other side might make a mistake and not recognize it?

Mr. Busby: --Or it might be tolled, Your Honor.

And there are also four different trigger dates in the statute for when it can first apply, that you aren't going to be able to tell, necessarily, three of them from the face of the petition.

Justice Scalia: Or the other side may say,

"Although technically the statute of limitations applied here, taking all considerations into account we think that this prisoner acted with reasonable promptness, and perhaps the delay was somewhat attributable to the State. "

Do you think that that's a proper consideration?

Mr. Busby: Absolutely, Your Honor.

There... the statute of limitations in AEDPA is designed to prevent delay, not to... as Congress has said, it's not a forfeiture provision; it's designed to move these complaints along speedily, particularly in capital cases, of which this is not one.

Justice Scalia: But you... it could be argued that the Federal Government wants to move them along speedily, whether or not the State government wants to.

Mr. Busby: Certainly.

And their--

Justice Scalia: So, that would suggest that the State's voluntary waiver of a statute of limitations should not make any difference.

It's a Federal... it's a Federal interest involved, not a State interest.

Mr. Busby: --Well, they... there is an interest in judicial efficiency that's at issue here, too, but we submit that it's far more inefficient for the Court to put limitations under this first category of Rule 4 and say that the Court must, on its own, look at limitations every time, without assistance from the parties, than it is to make the State do its job.

I mean, they're the ones, as this--

Justice Ginsburg: Well, we could--

Mr. Busby: --Court recognized--

Justice Ginsburg: --we could... we could agree with you that there is isn't an obligation on the Federal judge to raise it, but the question is, you know, the... it could be a "must", it can be "may not", or it could be "may".

Mr. Busby: --Yes, Your Honor.

Justice Ginsburg: And why shouldn't we treat this as a "may"?

The judge noticed the clerical error and called it to the party's attention by an order to show cause.

Mr. Busby: Well, the proper procedure under Rule 4 is not to call it to the party's attention in that way; it's--

Justice Ginsburg: We're past Rule 4, because an answer has been ordered.

Mr. Busby: --Yes, Your Honor.

Justice Ginsburg: So... and it's only when the answer comes in that this issue is spotted.

Mr. Busby: Yes.

That's correct.

And I agree with you that the proper procedure after that would be to bring the issue to the party's attention and let the State decide whether it wanted to file a motion to amend under Rule 15; and, if it did so, there are very clear standards that are applied, that were not applied in this case, to decide--

Justice Ginsburg: There are very what standards?

Mr. Busby: --There are very clear standards, Your Honor--

Justice Ginsburg: Yes, "leave shall be freely given".

Mr. Busby: --Yes, but there are also... it's a... again, it's a discretionary determination, and there are prejudice issues that should be considered as the--

Justice Ginsburg: Well, what would be the prejudice that could be claimed by the habeas petitioner?

Mr. Busby: --Well, the prejudice in this case is that the standards of Rule 15 were not considered; but, in addition, there are... there are well recognized decisions, both from this Court and from the Courts of Appeals, that went... that says a judge may deny leave to amend when the... at the time the concession is made.

And the answer... the State had full information.

And the State admits here that it had all the information it needed to make the limitations calculation attached to its answer, in which it conceded timeliness, and then... but then waited a year, or several months, to bring it up later.

And so, we would argue, if this were a Rule 15 analysis, that it would not be appropriate for the Court to allow the amendment.

Justice Alito: Are you--

Mr. Busby: Now, also--

Justice Alito: --Are you saying that the error is simply that it wasn't done via Rule 15?

What if we were to say that the same considerations apply when it's simply raised sua sponte by the... by the... by the District Court?

What would be your objection to that?

Mr. Busby: --Well, that would be... that's the Respondent's position, and I think, in addition to those considerations, if you disagree that this is a forfeiture, that... and you disagree that this is an express waiver, and you get to their position that, you know, this is a discretionary test and you should just apply the same Rule 15 factors, I think you need to also apply a presumption against sua sponte consideration.

There's one way to do it under Rule 4, and that's the most efficient way.

It's also the way that comports with judicial neutrality in the adversary system.

And so, to encourage people--

Justice Ginsburg: But you couldn't do this under Rule 4, because, as you, I think, recognized, that, just from the petition, from the habeas petition, you couldn't tell.

Mr. Busby: --I'm sorry, Justice--

Justice Ginsburg: There wasn't--

Mr. Busby: --Ginsburg, I misspoke.

I meant to say Rule 15.

But if... to encourage parties to do this under Rule 15, the Court should adopt a presumption against sua sponte consideration.

And this... in Arizona versus California, which they rely on heavily, they say that this type of consideration should be reserved for rare circumstances.

And we cite several cases in our brief where that... that also support that proposition.

So, we would submit, if you do get to this analysis, Justice Alito, that there should also be a presumption involved.

Justice Alito: Well, if you think it's... if it's done under Rule 15, would the considerations necessarily be exactly the same in a habeas case as in an ordinary civil case?

Mr. Busby: Not necessarily.

I mean, there... but we do submit that the timing issue that we just raised, about them having full information, would certainly be something we'd argue to the District Court in its discretion.

But another thing you have to consider, to your point, is that limitations is something that's... that has a subtle meaning and derive... and is directly addressed by Civil Rules 8 and 12.

And this Court, in Gonzalez and Mayle, says that when that happens, that's where you start, with the civil rules.

And then you ask if there's anything in the habeas statutes or rules that's inconsistent with that approach, with the... with the forfeiture approach of the civil rules.

Justice Ginsburg: --Yes, but the civil rules allow for amendment.

Mr. Busby: Yes, Your Honor.

Justice Ginsburg: There's 8(c), and there's 12(b), but there's also 15.

Mr. Busby: Yes, I agree.

And that was not used in this case.

I... and I... we agree that that would be an appropriate way to raise this.

Justice Ginsburg: It seems the height of technicality to say that the judge could suggest,

"Now, State, I will entertain a motion to amend the answer, under Rule 15. "

instead of saying,

"I'm issuing an order to show cause why this action is not out of time. "

Mr. Busby: Well, I don't agree, Your Honor, because there's a specific analysis that goes along with Rule 15 that wasn't applied here.

But, in addition to that, there's an efficiency interest to be served by having the State calculate and make the motion, rather than putting the burden on the Federal Court to do it.

The Court, we submit, should make the State... they... this Court, in Pliler, said the State's in the best position to make the limitations calculation.

It's an error prone fact intensive, burdensome calculation, and they shouldn't be allowed to foist that burden on the Court.

The Court should make them do their job.

And so, our position is that that's the reason that it should be done under Rule 15.

It also doesn't put the State in the position of being an advocate... excuse me... it doesn't put the Court in the position of being an advocate for the State and having them say... having the Court directly across the bench from the Petitioner, not involving the State, saying,

"Here are... I'm developing some arguments on behalf of the State now why this is untimely. "

"What do you have to say about it? "

That's--

Justice Scalia: Why does... proceeding under 15 does not do that; whereas, proceeding this way does?

Mr. Busby: --Well, proceeding under 15, I... proceeding under 15, you would say to the State,

"Do you want to make a motion to amend? "

Justice Scalia: Wink, wink?

Mr. Busby: Well... but--

[Laughter]

I mean, there is some value in that, I think, particularly where the State has expressly conceded timeliness.

I mean, the magistrate judge in this case, all that he had before him was the express concession from the State.

He never... the State never said anything in the District Court, even after he issued his notice to the Petitioner to show cause why it wasn't untimely.

So, the magistrate judge, all he had before him was the State's position that it was timely.

Chief Justice Roberts: Isn't that concern present in Granberry, as well?

And yet, the Court reached the opposite result there.

Mr. Busby: I don't think so, Your Honor, because in Granberry the State raised the issue for the first time on appeal, the court did not.

So, there, you do have the adversary system at work.

In addition, Granberry is different for several other reasons.

Exhaustions is, unlike limitations, unique to habeas corpus; it's not covered by Rule 8.

And, also, it's a common law limit that this Court has developed on habeas relief.

It's not a statutory affirmative defense.

And, as our brief points out, Congress has treated these very differently when it codified them in AEDPA.

And this applies not only to exhaustion, but nonretroactivity, abuse of the writ, and procedural default.

I'm sorry, procedural default was not codified.

But they other defenses... the other limits on habeas relief that the Petitioner relies on were codified very differently in AEDPA; whereas, for exhaustion it says,

"Relief shall not be granted unless you exhaust. "

That's a substantive limit on relief.

For limitations, however, it says when you're--

Chief Justice Roberts: One that requires the court to raise it sua sponte, even if it's not raised by the State.

Mr. Busby: --I beg your pardon?

Chief Justice Roberts: One that requires the court to raise it sua sponte, even if not raised by the State, correct?

Mr. Busby: Potentially, yes, if you codify it as a substantive limit on relief.

Whereas, limitations is simply codified... it says,

"a period of limitations shall apply. "

It doesn't say,

"Relief shall not be granted unless you file within one year. "

It doesn't even say, as it does in the capital context, for certain... for capital opt in States, that it must be filed by a certain time.

It just says "a period of limitation".

And that has a settled meaning that goes along with it.

Justice Breyer: Your position is, it should be like any other civil case.

Mr. Busby: Yes, Your Honor.

And--

Justice Breyer: You can raise it sua sponte, we've said, in exceptional circumstances.

Mr. Busby: --Yes.

Justice Breyer: I don't know what they are.

Mr. Busby: Well, I--

Justice Breyer: And if--

Mr. Busby: --I'm not--

Justice Breyer: --they're not there--

Mr. Busby: --One--

Justice Breyer: --then the judge could say,

"You know, I'm surprised that you haven't raised statute of limitations. "

Mr. Busby: --Uh huh.

Justice Breyer: And then the lawyer for the State says,

"Oh, my goodness. "

"Quite right. "

"We'd like to amend. "

Mr. Busby: Certainly.

Justice Breyer: And we don't--

Mr. Busby: And there could be--

Justice Breyer: --have to decide--

Mr. Busby: --good reasons to amend.

For example, the Bendolph case that you have before you, there was an alteration in a date, and the Third Circuit didn't ascribe that to any particular person, but, nonetheless, the documents that the State had before it had the wrong date on it from which to calculate.

Justice Scalia: Must there be good reasons for the judge to say, quote,

"I'm surprised that you haven't raised a statute of limitations defense? "

Mr. Busby: Well, I--

Justice Scalia: Must there be good reason for that?

And, if not, aren't you asking us to waste our time?

Mr. Busby: --I don't think so.

Justice Scalia: Why don't you do it the easier way and--

Mr. Busby: I don't think so, Your Honor.

You're... if you put... if you put limitations as something that the judge must raise, I think you're asking the judge to waste his time rather than leaving it to the parties to raise it.

Justice Scalia: --Well, what's your answer as to whether there is any limitation on the judge just suggesting,

"By the way, you know, is there some reason why you haven't pleaded statute of limitations? "

Can a... can a judge do that?

Mr. Busby: Well, I would think that, you know, it would be evaluated under an abuse of discretion standard, and I haven't... I haven't given much--

Justice Scalia: And what... when would it be an abuse of discretion?

Mr. Busby: --For a judge to--

Justice Scalia: Yes.

Mr. Busby: --invite the State to amend?

Justice Scalia: Right.

Mr. Busby: I would say if... it would be, in this case, perhaps, because of the State's express concession to the contrary, and... so that that might be one circumstance.

But I don't think this--

Chief Justice Roberts: Well, it wouldn't--

Mr. Busby: --Court needs to--

Chief Justice Roberts: --be an abuse of--

Mr. Busby: --circumscribe--

Chief Justice Roberts: --It wouldn't be an abuse of discretion for him to suggest an amendment if he's got the opportunity to rule on the amendment later on.

And then presumably the ruling would be reviewed for abuse of discretion.

Mr. Busby: --That's a good point, Your Honor.

I don't think this Court needs to circumscribe the judge's authority to suggest an amendment.

I think you could wrap it all into the ruling and evaluate that for abuse of discretion.

Justice Stevens: I suppose it might be an abuse of discretion if you'd already had a hearing and took... and decided that there was merit to the plaintiff's claim, and then decided,

"Well, now I'm going to just throw it out on limitations. "

might be an abuse of discretion.

Mr. Busby: I would agree with that, yes, Your Honor.

Chief Justice Roberts: Well, then why doesn't that same standard apply to the decision of the Court to raise it sua sponte?

Mr. Busby: Well, because in this case you have an express concession.

And so, it's a... this Court has said, and other courts have said, that when you have an express concession, it's error to override that concession and impose the defense sua sponte.

The Court should, instead, assume that the concession is valid and that refusal to honor it is an abuse of discretion.

You--

Justice Ginsburg: Were those--

Mr. Busby: --don't want to strip--

Justice Ginsburg: --cases... were those cases of a miscalculation on the part of the State?

The judge's view was that the State had miscalculated under eleventh amendment... under Eleventh Circuit precedent.

Mr. Busby: --Well, Your Honor, most of those cases involved other issues, like exhaustion and procedural default, where the State later came back and said,

"We were mistaken that they exhausted. "

or,

"We were mistaken that they didn't procedurally default this claim. "

So, it's a similar mistake claim, but, nonetheless, the State affirmatively pleaded the opposite of either exhaustion, procedural default, or limitations.

And the court held them to that.

Justice Scalia: So, you'd say it would be okay if the State didn't expressly concede the statute of limitations point.

Mr. Busby: Possibly.

But, again, I think if you... if you use the analysis of the civil rules that applies here, by virtue of Civil Rule 81 and Habeas Rule 11, that it's error... our first position is that it's error to override the forfeiture--

Justice Scalia: That's--

Mr. Busby: --except in--

Justice Scalia: --That's what I thought your--

Mr. Busby: --Yes.

Justice Scalia: --position was.

Mr. Busby: Except in exceptional--

Justice Scalia: Okay.

So, this--

Mr. Busby: --circumstances.

Justice Scalia: --a fallback position.

Mr. Busby: Yes.

That's correct.

And then our second fallback position is that even if Your... even if Your Honors agree that the court could... has discretion to override the express waiver, that there's at least a discretionary analysis that has to apply under Civil Rule 15 that's coupled with a presumption in... against sua sponte dismissal that the Eleventh Circuit didn't apply here.

Justice Breyer: --Why, just out of curiosity... I'm not familiar with the actual practice of a lot of civil cases, but when somebody... let's say the defendant in an ordinary tort case forgets to put in the statute of limitations, and the case is all tried and finished.

At the very end, he says, "Oh, my God".

And now he goes in and asks to amend it under Rule 15.

Do judges normally say, "Fine"?

Mr. Busby: I... they normally say no, that that's--

Justice Breyer: Because it's--

Mr. Busby: --The... because the case has gone on down the road on another theory, and it's prejudicial to the parties, and it wastes... it's a waste of the court's judicial resources to--

Justice Ginsburg: But here, nothing--

Mr. Busby: --bring it up.

Justice Ginsburg: --happened.

Nothing happened.

There was--

Mr. Busby: Well--

Justice Ginsburg: --The answer was put in, and then there were no further proceedings.

Nothing else went on in the court.

Mr. Busby: --Well--

Justice Ginsburg: It's quite different... I don't know any judge that would allow a defendant, after the trial is over, to raise the statute of limitations.

But, up front, it's a different situation.

Mr. Busby: --Well, we disagree that this was up front, Your Honor.

The answer in a... habeas corpus cases, of course, heavily deals with the merits, as it did in this case.

And then, Mr. Day replied.

And, as the State's amicus brief points out, that's all that usually happens in most habeas corpus cases.

So, we were near the end of the proceeding, as... if you think of the run of the mine habeas corpus case.

And, also, speaking of run of the mine habeas corpus cases, this is a very rare instance.

There are... there are lots of procedures for courts to vindicate the interest that the State describes in comity, finality, and federalism, whether inviting a motion to... whether ordering the State to file a motion to dismiss under Rule 4, which we submit would be the proper procedure, or, if the State fails to raise it in its answer in certain circumstances, inviting them to file a motion to amend under Rule 15.

That takes care of these interests in the run of the mine case.

There's no need to vindicate those interests in this case by creating an exception to the rules.

This Court has said, in Lonchar and in Carlisle, that where there are civil rules that deal with the... and habeas rules... that deal with how these things happen, the Court cannot use its inherent powers to circumvent those rules.

And we submit that that's exactly what the court did here.

Now, in addition, I'd like to point the Court to New York versus Hill, which is not cited in our briefs, but can be found at 528 U.S. at 114 to 15 and also 118, on this express waiver issue.

And this is a case where the Court recognized exactly the point that we make here, that not all... you don't always have to show intentional relinquishment of a known right for that to be the standard for waiver.

It depends on the right at issue.

There, it was an International Agreement on Detainers Act case, and the Court held that the... that the defendant's assent to delay waived the time limitation of the Interstate Agreement on Detainers Act, expressly waived it.

And that's our... that's our position here, is that the State's affirmative pleading of timeliness is an express waiver.

In addition, the State could... certainly couldn't prevail, under the Brady versus U.S. standard that applies to plea agreements, for saying that its concession was not knowing.

There's no... there's no suggestion here that the State was misled.

There's no suggestion that they didn't have all the information they needed to make the calculation.

And Brady says that simply misapprehending a factor... a relevant factor in the analysis is not enough.

And that's at 397 U.S. at page 757.

In addition, the State makes an argument about policies beyond the concerns of the parties, and that the State... that those should be vindicated in this case.

But I'd like to point out that this Court has not adopted the

"beyond the concerns of the parties. "

test; rather, it's acknowledged that Congress entrusts even important public policies, like comity, finality, and federalism, to the adversary process; and, thus, their... and even private rights that benefit society can be waived, in Christiansburg Garment, for example.

With the Court's permission, I'd like to reserve the balance of my time.

Argument of Christopher M. Kise

Chief Justice Roberts: Thank you, Counsel.

Mr. Kise.

Mr. Kise: Mr. Chief Justice, and may it please the Court--

The District Court's sua sponte action here was consistent with AEDPA and the habeas rules.

It was consistent with this Court's habeas jurisprudence.

And it was consistent with the purpose behind, and not prohibited by, Federal Rules 8 and 12.

This case is not about the State's waiver.

And we would agree that... with Justice Scalia, that the waiver is not the beginning and end of it.

We're not conceding that the State, in fact, waived it here, but we're saying that that's not essential to the answer to this question, because it's not the beginning and the end of the analysis.

This case is also not about, as the Petitioner alleges in the brief and makes inference on the Eleventh Circuit's opinion, about obligating courts to act in all circumstances.

This case is about the proper exercise of discretion.

And what we're really asking this Court to do is really three things to acknowledge again that this authority exists, to say that this is when the court may exercise that authority under the circumstances presented by this case, And then, thirdly, that this is how the Court goes about exercising this authority, by providing notice and opportunity to be heard, and conducting an analysis of prejudice.

And--

Justice Scalia: You think the court "must".

Mr. Kise: --No, Your Honor.

Justice Scalia: Well, don't you think that's what this court thought?

And, if so, shouldn't we perhaps send it back to see whether, if the court knew that it had discretion, it would have done this?

Mr. Kise: Your Honor, respectfully, I don't think that that's what the Eleventh Circuit thought.

I think that that is an interpretation of the Eleventh Circuit's language.

However, I think that where the phrase that Counsel pointed to in the opinion... on page 5(a), referencing 4, that the court has this obligation.

I think it... because it's in that discussion that the Court is talking about the obligation.

And I would submit that, indeed, under Rule 4, in response, I believe, to Justice... a point Justice Kennedy raised, I would say that, under Rule 4, I think it is obligation.

I think what Rule 4 is, is a reflection of Congress... excuse me... of the rule advising the court that,

"You must exercise this authority that you already have at this particular time. "

"This is the time when you need to be looking for these things. "

Justice Ginsburg: Yes, but, Mr. Kise, the... Mr. Busby told us that the reference was in the following paragraph, and it is the sentence,

"A Federal Court that sits in collateral review of a criminal judgment of a State Court has an obligation to enforce the Federal statute of limitations. "

That's the sentence that suggests that the Court of Appeals thought that there was an obligation, the District Court, to raise the statute of limitations on its own motion.

Mr. Kise: Your Honor... and I was referring to that sentence, and perhaps I wasn't clear, but I would... I would say that they are still talking about Rule 4.

But even if they're not talking about Rule 4, even if, in fact, this Court believes that the District... that the Circuit Court's analysis is flawed, then we must keep in mind that this Court is reviewing judgments, not opinions.

And this Court could easily do what it did in Gonzalez, which is, even though the analysis is not consistent with what this Court... I mean, frankly, if the Court takes that view with what we're asking the Court to do here... but you can nevertheless affirm the judgment.

Because the District Court did, in fact, get it right.

The--

Justice Souter: What--

Mr. Kise: --District Court--

Justice Souter: --What would you say... assuming that we're beyond Rule 4, what would you say simply to a rule that said,

"Yes, we recognize that there remains a discretion... not an obligation, but a discretion... on the part of the court to raise this. "

But, just as a... as a general rule, judicial efficiency is better served by avoiding the use of discretion unless the State, in fact, raises the limitations issue, itself.

The courts have a lot of things to do, and they shouldn't be spending their time canvassing pleadings to see whether there might be an issue that the State missed; so that in the absence of some extraordinary circumstance, it would be an abuse of discretion to exercise it as the... as the Circuit suggests it should have been exercised here.

What would you say to that position?

Mr. Kise: --I would say, respectfully, Your Honor, that that is somewhat inconsistent, if not entirely inconsistent, with what this Court said in Granberry and Caspari, dealing with the same sort of raising of affirmative defenses.

From that standpoint, from a procedural standpoint, I would say that Granberry and Caspari are procedurally indistinct, in that this Court said that it is appropriate, in these circumstances, for the court to look at affirmative defenses.

Obviously, they have substantive differences, which my... which Counsel has pointed out, but, from a procedural standpoint, were the Petitioner to prevail here, I would think this Court needs to recede procedurally from Granberry and Caspari--

Justice Souter: What--

Mr. Kise: --because the Court--

Justice Souter: --What, then, would be the significance here of the fact that the State conceded that there was no limitations problem?

In a case like that, wouldn't it be a good rule to avoid judicial inquiry?

Mr. Kise: --Well, Your Honor, I think that the State's concession, as Justice Scalia pointed out, is not the beginning and end of it, in the first instance.

Secondly, it--

Justice Souter: No, but it bears on the exercise of discretion.

Mr. Kise: --Yes, Your Honor, it does.

And we would agree that it bears on the exercise of discretion.

And, in a circumstance such as this one, where the attachments, the record itself, indicated that there was a discrepancy between the position the State was taking and what the record actually reflected, it was appropriate for the District Court to raise the issue and then consider the interests of the parties.

If the District Court had been presented simply with nothing in the record, just a blanket statement by the... by Florida that, "We concede", and there was nothing to raise the question, then we would... we would say that it's not appropriate for the court to simply pull issues out of the sky.

Justice Souter: That would be an abuse.

Mr. Kise: Yes, Your Honor.

I would say that it would be an abuse.

Justice Breyer: District judges can't comment on the cases?

And... they suddenly raise something, curious about something; and, lo and behold, it becomes the subject of an amendment.

Mr. Kise: Well, Justice--

Justice Breyer: That's a violation of... I mean, what I'm driving at is, I don't really understand Rule 15 thoroughly, because I'm not a trial lawyer.

And why do we have to decide every matter?

Why don't we let the District judge free to run his trial and just say,

"Hey, we don't want to proliferate law. "

"It's complicated enough already. "

"Let's leave it to Rule 15, whatever that might be? "

Mr. Kise: --I think leaving it to Rule 15 is one way to do it.

And doing it in these particular cases is another way.

Giving the courts discretion to raise the--

Justice Breyer: Yes, but the other way means we're now going to have a new area of law.

The new area of law consists of habeas law involving what is the equivalent of an amendment suggested by the judge to bring up a statute.

That would be good, because West would then have five more pages, with a new keynote--

[Laughter]

--and there would be more for lawyers to look up.

Whereas, if you just say Rule 15, it's finished.

Mr. Kise: --Respectfully, Your Honor, I believe this Court's already done that, though, in Granberry and Caspari.

I mean, that's what you've already said, is that, under... that habeas is different.

And I think it's important to point out, we're not asking for a different construction of Rules 8 and 12.

We're asking this Court to apply the same exception that is applied in the extraordinary case.

The Petitioner takes the position... and Petitioner is alone in this contention... that "ordinarily" means "never".

Even the law professor amici don't take position, and there is not a case that we have been able to locate in the country that says that "ordinarily" means "never", that--

Justice Ginsburg: Would you say it's--

Mr. Kise: --the ordinary rule--

Justice Ginsburg: --means it's "hardly ever"?

I mean, we do follow the principle of party presentation.

And judges are not supposed to be intruding issues on their own, they are supposed to follow the party's presentation.

So, would this be... if it's not "never", would it be at least "hardly ever", that it's appropriate for a judge to interject an affirmative defense on his own motion?

Mr. Kise: --Yes, Your Honor, I would say that it is "hardly ever", and that's what we're dealing with here.

It's what the Court was dealing with in Granberry and Caspari, these limited circumstances where the interests transcend the interests of just the parties before the court and where it is, from the... from a review of the record, as District judges do every day looking at the record and identifying issues, and to avoid the sort of conundrum that's presented by the Petitioner agreeing that the District judge could simply look at the State and, as Justice Scalia said, wink, wink,

"It's okay for you to raise this issue now. "

to avoid the roundabout that is occasioned by that.

If it is, in fact, permissible in these circumstances for the District Court to raise the issue, then doing it the way the court did it here, and the way that was approved in Bendolph, and the way that we believe the Eleventh Circuit approved it, is entirely appropriate, because it's consistent with what this Court said in its habeas jurisprudence.

Justice Scalia: What if Congress wanted to leave it to the State to waive the statute of limitations provision?

How could it have made that clear?

I mean, I would have thought that if they made it a statute of limitations provision instead of a jurisdictional provision... I mean, they could have said, you know,

"No jurisdiction if it's filed beyond a certain date, and we mean it. "

But it put it as a statute of limitation, which normally is waivable.

And I would think that that is an indication that Congress thought,

"Really, if the State thinks that in this particular case we shouldn't hew to the technicality of the statute of limitation, the State ought to be able to waive it. "

Mr. Kise: And I think that's why it is set up the way it is, Your Honor, but it's just that the waiver is not the beginning and end of it.

For example, where the State might wish to waive the statute of limitations and simply move to the merits would be in a situation where there might be some complex argument over equitable tolling and where the merits are relatively straightforward.

Rather than spending the court's time and the resources involved and litigating over equitable tolling, the State might simply say,

"We realize that there is this technicality here, but we're going to get to the merits, because otherwise we're going to spend an inordinate amount of time litigating. "

Justice Scalia: Well, it's always a technicality.

What you're saying is, the only time that the State can do that is when the answer to the statute of limitations is unclear.

And I'm saying sometimes the State may say,

"The answer is clear, but doggone it, this is just too picky picky, too technical in this particular case. "

Mr. Kise: And, Your Honor, our test allows for that, as well.

It's up to the District Court to decide whether, in that particular case, the circumstances require the application.

There is some discretion.

I don't think that the State could--

Chief Justice Roberts: Would it... would it always be an abuse of discretion for the District Court to do this if the State wanted to reach the merits?

Mr. Kise: --I don't think so, Your Honor, because it would depend on why the State wanted to reach the merits.

Perhaps the State was engaging in some sort of gaming of the system, as Petitioner alleges could happen.

If there was, in fact, some actual sandbagging going on, where the State is holding this issue in reserve as a strategic matter, and the District Court simply says,

"No, we're not going to allow that. "

And it would really be the same analysis under Rule 15.

If the court were to have sandbagged, so to speak, under Rule 15 and waited to file a late amendment, the court would engage in the same analysis.

The court would say,

"Well, wait, do I really want to permit the State, now, to assert this? "

Chief Justice Roberts: There's no question of... put aside a sandbagging case, there's no question of sandbagging, and that the... the State just wants to litigate on the merits rather than on the statute of limitations.

Mr. Kise: It would not always be an abuse of discretion.

I--

Chief Justice Roberts: In other words, can they have it... would it be an abuse of discretion in an express waiver case as opposed to a forfeiture case?

Mr. Kise: --I don't think that you could say, in all circumstances... no, Your Honor, it would not be an abuse of discretion in all circumstances.

But I do think the District Court needs to factor in the interests of the State and the reasons why the State is willing to proceed forward.

And if the State, for example, is, as I believe an example was given by the court, that the State is... believes that,

"Well, perhaps it's appropriate to waive the statute here, or to not rely on the statute here, because of something maybe we have done, or that it... the Petitioner didn't... missed the deadline by a certain period of time, and we think that, in this particular case, it's all right to reach those merits. "

So, I can't... I don't think we should say that it's always an abuse of discretion, but I think we need to leave it to District Courts to make that determination, just as this Court did in Granberry and Caspari.

This Court gave District Courts that discretion, because these are the types of cases where that discretion is appropriate.

This Court's already identified that, in habeas cases, we are to treat Rules 8 and 12 as the exception being applied, that these--

Justice Ginsburg: I thought in Granberry the Court gave the Court of Appeals that discretion, since it hadn't... the point had been missed in the District Court, been missed by everybody, until the Court of Appeals.

Mr. Kise: --Well, Your Honor, in fact, this Court did give the Court of Appeals that discretion, but even more so than we would give the District Court that discretion, because, Why should we wait for the process to get all the way to the Court of Appeals?

If this Court is going to say it's appropriate for the Court of Appeals to look at an affirmative defense, then certainly, in keeping with that reasoning, it would be appropriate for a District Court to raise it before we've gone through the entire process of litigation in the District Court and then getting ourselves to the Court of Appeals.

Justice Scalia: You acknowledge at least this much, or am I incorrect?

And it's important for me to know that.

You acknowledge at least this much, that if we read this opinion, as you do not, to be saying that the court "must" do this so that the court was not really considering all factors in the exercise of its discretion, we would have to remand.

Mr. Kise: No, Your Honor, I would not, and I'll tell you why I would not.

Justice Scalia: All right.

Mr. Kise: It's because, just as in Gonzalez, the Court is not reviewing the opinion.

The Court is reviewing the judgment.

And the--

Justice Ginsburg: But why would--

Mr. Kise: --judgment is correct.

Justice Ginsburg: --why would you deal with that hypothetical when the Eleventh Circuit, in all fairness, said,

"We join the Second, Fourth, Fifth, and Ninth Circuit, and rule that, even though the statute of limitations is an affirmative defense, the District Court may review the timeliness of the 2254. "

That's what... the question that the court thought it was deciding.

Mr. Kise: I would agree that the court thought it was deciding discretion, but I was responding, I... to what I thought was Justice Scalia's question about, What if this Court does not agree with that?

If this Court believes that the Eleventh Circuit, in fact, was applying an obligation rule, a mandatory rule, then it would require remand.

And I... what I'm saying, Your Honor, is... is that we would not, because the District Court applied the appropriate test.

In the first instance, I would say that the Eleventh Circuit did not, in fact, apply that test, did not believe that it was obligated to, but if this Court were to disagree, as Justice Scalia has presented the hypothetical, then I would say that the District Court did, in fact, apply the correct test.

The District Court, as noted in... on page 8(a) of the petition appendix, the footnote in the magistrate's report and recommendation cites Jackson, the Eleventh Circuit case which stands for the discretionary proposition, and indicates specifically that it is relying on a discretionary test.

And so, the District Court in this case, in fact, applied the test that we are advocating, and in... and, frankly, got it right.

The District Court applied discretion, raised the issue, provided a notice and an opportunity to be heard, conducted the analysis of prejudice... there was no prejudice in this case... and ruled, on that basis.

And that ruling was consistent with this Court's habeas jurisprudence, and it was consistent with AEDPA and with the habeas rules.

Chief Justice Roberts: Why doesn't your position on the underlying merits of the timeliness question create an incentive for every habeas petitioner to file a cert petition?

Mr. Kise: I'm not sure I follow your--

Chief Justice Roberts: Well, you--

Mr. Kise: --your question, Your Honor.

Chief Justice Roberts: --you only get the extra 90 days if you actually file, under your explanation for why this cert petition is... why this habeas petition is untimely.

In other words, if this individual had filed a cert petition with us, his petition... his habeas petition would be timely.

And he's only going to get the extra period, as I understand your position on the timeliness, if he files a cert petition.

Mr. Kise: I understand our position to be that they do not get the 90 days, postconviction.

And if that is misstated in our brief... but I... certainly we're not attempting to encourage the filing of cert petitions by habeas petitioners.

And we believe the statute provides for the 90 days, postdirect review, but not after following State postconviction.

Once the State postconviction proceedings are no longer pending, meaning that they are completed for State purposes, not including the 90 days--

Chief Justice Roberts: Right.

Mr. Kise: --that's when they terminate.

That is our position.

Chief Justice Roberts: Even if they file a cert petition.

Mr. Kise: Yes, Your Honor.

Chief Justice Roberts: So, doesn't that put them in the position of sometimes having to file that... the habeas petition while the cert petition is still pending, if they file one?

Mr. Kise: Yes, Your Honor, it might.

It does present that conundrum.

But that's what the statute provides.

That is the way the statute has provided for it.

And we think that interpretation is consistent, because there certainly... as was referenced in the first oral argument, there is some expectation that the court might grant certiorari, but it's not in the... the likely case.

And so, to suspend the congressional purpose of moving these cases through the system on the chance that the one in a thousand, or perhaps more than one in a thousand, case is granted certiorari would not be an appropriate process to utilize.

And I think the Circuit Courts bear that out.

The opinions of all but one of the Circuits bear that... bear that--

Justice Stevens: Is there a conflict on the Circuits on that point?

I don't know.

Mr. Kise: --Your Honor, one Circuit... ten of the Circuits go in the direction that we advocate, and Abela, the Sixth Circuit case that is cited, I believe, by the Petitioner--

Justice Stevens: Yes.

Mr. Kise: --moves in the other direction.

And it is only recently that they have done that.

If the Court has no further questions, thank you.

Argument of Douglas Hallward-Driemeier

Chief Justice Roberts: Thank you, Counsel.

Mr. Hallward Driemeier, we'll hear now from you.

Mr. Hallward-Driemeier: Mr. Chief Justice, and may it please the Court--

There is nothing in either the habeas rules or the Federal Rules of Civil Procedure that deprives the District Court of its authority sua sponte to recognize the untimeliness of a habeas petition.

To the contrary, to the extent the rules speak to the issue at all, they confirm that in light of the significant social cost of Federal review of State Court convictions, the Federal Courts have a unique responsibility to weed out unmeritorious claims and to enforce the limitations on habeas review.

Rule 4 imposes an obligation on the court to dismiss unmeritorious petitions without even calling for an answer by the State.

Now, Rule 4 is not applicable here, but the absence of an obligation to note the deficiency sua sponte does not connote a prohibition on acting sua sponte; rather, it suggests that it lies in the court's discretion.

That is exactly how this Court addressed similar question in Granberry, where it rejected the two extremes... one, recognizing the limitation as jurisdictional, that the court was obligated to raise it sua sponte, but also rejecting the opposite extreme, that the court was prohibited to address an issue that had not been preserved in the District Court.

Justice Breyer: Why, though, would we have a special rule in this respect for habeas cases?

Same question I've had throughout.

Treat it like any other civil case.

Mr. Hallward-Driemeier: It's not really a special rule that we're advocating.

Justice Breyer: All right, if it's not a special rule, then the answer to this is, just say,

"No, you don't have to raise it sua sponte. "

"Moreover, you cannot raise it sua sponte, except in exceptional circumstances. "

cite the three cases that said that.

And, as far as you're suggesting it to people, you could do it just as much as you do in any other civil case, no special rule.

If they want to move to amend, fine, end of case, we did it in a paragraph.

Mr. Hallward-Driemeier: The relevant analogy in the civil context is not to what a court would do with a statute of limitations defense in the civil context, it is to what would the court do with respect to an affirmative defense that, like the habeas limitations, implicates broader social interests?

Justice Breyer: Well, the same with strike suits.

You know, there are a lot of class action strike suits and so forth that at least one group of people think are terrible and the other group think are great.

So, you say,

"Well, we're going to have a special thing here for amendments in strike suits. "

"Have a special amendment for some. "

--you know, why proliferate law?

Mr. Hallward-Driemeier: Well, the Court recognized... Arizona v. California is an example of the broader social interests that are implicated by the affirmative defense of res judicata.

And the Court noted, in Arizona versus California, that it would be appropriate for the court to raise that defense sua sponte.

And, of course, Plaut versus Spendthrift Farm says the same thing.

Justice Ginsburg: Not generally.

Statute of limitations, like res judicata, they are 8(c) affirmative defenses, and preclusion doctrine is for the party to waive or not, just like the statute of limitations.

I don't think there's any rule that says a judge in the run of the mine case acts properly by interjecting preclusion into a case where no party has raised it.

Mr. Hallward-Driemeier: Well, our point is that it is a matter for the court's discretion.

And there may well be circumstances where it would be an abuse of discretion to interject a timeliness objection.

For example, if the case had gone on for years, and a trial had been held, as Your Honor suggested in the question earlier, that might well be an abuse of discretion, but it would not... for example, take the case where the District Court had dismissed, at the outset, on the merits, and it went up to the Court of Appeals, and the Court of Appeals said,

"You know, that merits issue is a very difficult one. "

"And, in fact, we think we might have to remand for an evidentiary hearing on that issue. "

"But, you know, this case was untimely filed. "

"We can dispose of it on that basis. "

"And we can save all of those judicial and party resources by addressing that issue now. "

We think that would be an appropriate exercise of the court's discretion.

Here, as Your Honor noted earlier, this was the first thing that happened in the District Court after the filing of the petition, the answer, and the reply.

There was no waste of judicial resources by the fact that it was raised sua sponte by the court in the first thing that the court did after that briefing.

There was no prejudice to the Petitioner, because it was omitted from the State's responsive pleading.

There is... as the Court said in Granberry, the failure to plead it perhaps waives the District... the State's opportunity to insist on the defense.

The State, because it said, in its answer here, erroneously, that the petition was timely filed, or if it had said nothing, would have waived its opportunity to stand on, and insist on, that defense.

But it is not an absolute forfeiture.

It does not bar the party from suggesting at a later time, "We would like to amend", or, in this case, the court to note it sua sponte.

The court did, here, of course, give the Petitioner every opportunity--

Justice Scalia: Excuse me.

From what you just said, I take it that means that even when the State is unwilling to change its mind and says,

"No, we would still prefer not to assert the defense. "

you would allow the court to impose it.

Mr. Hallward-Driemeier: --We believe that the court is not absolutely limited by the defenses--

Justice Scalia: The answer--

Mr. Hallward-Driemeier: --asserted by--

Justice Scalia: --is yes.

Mr. Hallward-Driemeier: --Yes.

Yes.

The court is not absolutely limited by the affirmative defenses asserted by the State.

For... and that is perhaps most easily seen with respect to affirmative defenses such as failure to exhaust, nonretroactivity.

If the court was going to have to assess a brand new constitutional claim that the habeas petitioner--

Chief Justice Roberts: But with respect to some--

Mr. Hallward-Driemeier: --was asserting--

Chief Justice Roberts: --of those, of course, AEDPA specifically promulgates new rules about when they're waived, and not.

And they... Congress hasn't done that with respect to the statute of limitations.

Mr. Hallward-Driemeier: --That's right.

And obviously, as the State suggested, if the State didn't want to stand on the statute of limitations defense because, for example, it was particularly messy, there was going to be a lot of litigation about equitable tolling, it would in inappropriate for the court to insist on litigating that issue.

But if, for example, the State said,

"Well, you know, if we didn't stand on this defense, instead this Petitioner would go back to the State Court, and the State's Courts are going to be very hospitable to this claim. "

"We think you're more likely to deny relief, so we'd rather have it litigated here. "

it would inappropriate for the State to try to force the Federal Court to litigate that issue instead of the State Court.

These are all fact specific, case specific considerations.

And that's what the Court did in Granberry.

It remanded... after setting aside both extreme positions, it remanded to the Court of Appeals for a case specific application of discretion.

As to the question of whether the Eleventh Circuit here believed that there was an absolute obligation, I think that it's relevant to note that, although there was one point at which it said,

"The court was obligated to enforce the statute of limitations. "

--and, of course, that's true if the State has preserved the defense... there were three other points in the Court of Appeals opinion where it used discretionary or nonmandatory language.

For example, at petition appendix 4(a), the court said that the District Court "may dismiss".

At the petition appendix 5(a), it said that the State's failure to raise "does not bar" the court from acting sua sponte.

Again, at petition appendix 6(a), the State's concession, quote,

"does not compromise the authority of the District Court. "

All of those are phrased in more permissive language--

Justice Scalia: But, of course, "may" is... "may" is embraced within "must".

If you "must", you "may".

Chief Justice Roberts: [Laughter]

Mr. Hallward-Driemeier: --Well, perhaps the... perhaps the even most clear indication of what the Court of Appeals viewed this is its citation to Jackson as an application of Jackson.

And in Jackson there is no question, because Jackson said, quote,

"The District Court possessed the discretion to raise sua sponte. "

And the... and the magistrate judge, as the State's counsel, mentioned... in footnote 1 of its opinion, cites that same standard and makes clear that it's raising this at a... as a matter of its discretion.

So, remand for the exercise of discretion would be... serve no purpose in this case.

If there are no further questions--

Rebuttal of J. Brett Busby

Chief Justice Roberts: Thank you, Counsel.

Mr. Busby, you have 4 minutes remaining.

Mr. Busby: Thank you, Mr. Chief Justice.

I'd like to begin by addressing the "must" versus "may" issue that Counsel discussed.

For the reasons I mentioned, I think the better reading of the Eleventh Circuit's opinion is that there was an obligation, and that the most clear indication of that is its distinction of Esslinger, which expressly applied a Granberry type analysis.

But, even if the Court believes that the Eleventh Circuit was only saying "may", and that the District Court was only saying "may", and recognized the that it had discretion... and there is a footnote in the magistrate's opinion that cites to Jackson that says, "We have discretion"... I would submit that if you read Jackson, it's a standardless discretion.

There are no factors anywhere in Jackson of the type that this Court discussed in Granberry.

It... and there's no indication that the... that the magistrate judge considered any of those factors.

There's no indication that the Eleventh Circuit considered any of those factors.

And it's certainly an abuse of discretion for a court to apply the wrong legal standard or fail to consider the relevant factors that channel that discretion.

And so, we... our position is that, because the factors under Rule 15 and the other factors in our brief were not applied, that a remand, at a minimum, is appropriate in this case.

Also, I'd like to speak to Granberry and Caspari.

Again, those involve exhaustion and nonretroactivity.

And I submit that it's not correct to characterize those two doctrines as affirmative defenses; rather, the way that Congress codified them is on... as substantive limits on relief, unlike "limitations", which it just said "period of limitations", which the commonly accepted meaning is an "affirmative defense".

And so, that makes those very different from an affirmative defense, in terms of sua sponte consideration.

Also, both "exhaustion" and "nonretroactivity" are unique to habeas.

They're not mentioned anywhere in Rules 8 and 12.

Whereas, "limitations", of course, is mentioned explicitly.

And so, our position is that Rule 8 and 12, not necessarily always, but at least in all but extraordinary cases, would prevent the judge from raising this sua sponte.

Also, I would say that the rules that we rely on don't deprive the court of sua sponte authority, they channel that authority.

Under Rule 4, they can plead it, or the court can make a motion to dismiss... ask the... order the State to make a motion to dismiss based on limitations under Habeas Rule 4.

They can plead it in their answer, under Habeas Rule 5 and Civil Rules 8 and 12, or they can amend their answer, under Civil Rule 15.

That's the way the drafters of the rules wanted them to do this.

And Lonchar and Carlisle say they cannot... that a judge cannot use his sua sponte power to circumvent the requirements of those rules.

Finally, I'd like to mention that civil... the statutes of limitations in civil cases also implicate broader social interests.

And some of them, we've discussed in our brief.

And, even more so, because there are lots of protections in AEDPA cases that don't apply in civil cases.

There are presumptions of correctness and those sorts of things.

But courts in civil cases, nonetheless, say that statutes of limitations can be waived.

And the result should be no different here.

Thank you.

Chief Justice Roberts: Thank you, Counsel.

The case is submitted.

Attribution:

The Oyez Project

Featured:

House v. Bell - Oral Argument

Fri, 09 Jan 2009 14:48:58 +0000

Case:

House v. Bell

Media File:

04-8990_20060111-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Stephen M. Kissinger

Chief Justice Roberts: We'll hear argument next in House v. Bell.

Mr. Kissinger.

Mr. Kissinger: Mr. Chief Justice, may it please the Court--

The jurors which--

Justice O'Connor: Why don't you raise the level of the podium a little so we can hear you?

Mr. Kissinger: --Is that better, Your Honor?

Justice O'Connor: Not much.

Mr. Kissinger: One more sound check.

Does that--

Chief Justice Roberts: Thank you.

Mr. Kissinger: --Thank you.

The jurors who convicted Mr. House of first degree murder heard that semen stains on the victim's clothing matched Mr. House.

They didn't hear the DNA evidence which showed that not to be the case.

The jurors heard--

Justice O'Connor: Was that because there was no such analysis at the time?

Mr. Kissinger: --That's correct, Justice O'Connor.

Justice O'Connor: How many years ago was this trial?

Mr. Kissinger: The trial, Your Honor, was approximately 20 years ago.

The jurors who convicted Mr. House heard that bloodstains on Mr. House's blue jeans matched the blood belonging to the victim.

They didn't hear the assistant chief medical examiner for the State of Tennessee testify that the source of those bloodstains was a sample taken during Ms. Muncey's autopsy, nor did they hear--

Justice Scalia: The district court heard that, though, didn't it?

Mr. Kissinger: --That's correct, Justice Scalia.

Justice Scalia: And didn't believe it.

Right?

And did not believe it.

Found as a matter of fact that the blood was... was not a result of the spill.

Mr. Kissinger: Justice Scalia, the court made a conclusion that the blood which had spilt from the tube had spilt after... after the blood had been tested.

It did not, however, make a factual finding.

It made a conclusion of law regarding that, Your Honor.

Justice Scalia: That... is that a conclusion of law?

Mr. Kissinger: It is, Your Honor.

If the Court were to look at the district court order, the district court order was divided into two distinct parts.

The first part--

Justice Scalia: I don't care what part it put it in.

The district court did not believe that the blood on the trousers was a consequence of the spill and that... and that, therefore, blood was identified on the inside of his trousers that was the blood of the victim.

That's what the district court believed, having heard the testimony.

Mr. Kissinger: --Your Honor, what the district... what the district court concluded as a matter of law was that it... that notwithstanding Dr. Blake's testimony regarding the source of the blood found on Mr. House's jeans, that that did not eliminate the... eliminate the testimony of Agent Scott who said that he saw blood on the jeans when he first... excuse me.

Let me rephrase that because it's actually a critical matter.

He saw what he thought appeared to be bloodstains on the jeans when he first picked them up.

What the district court did in that instance was exactly the error that Mr. House has brought to the attention of this Court, which is in the face of evidence of innocence, the district court, simply because it found some contrary evidence in the record, found that Mr. House had failed to make his showing.

Justice Scalia: On that point... on that one point, do you contend that the district court was clearly erroneous?

Mr. Kissinger: Your Honor--

Justice Scalia: On that one point of the blood, of whether, indeed, his blood was on... or the victim's blood was on the inside of his trousers?

On that one point, do you claim that the district court was clearly erroneous?

Mr. Kissinger: --Justice Scalia, we actually make two claims regarding that.

First, that that was a conclusion of law entitled to... entitled to de novo review.

Second, that--

Justice Scalia: What's your... what's your second point?

Because I--

Mr. Kissinger: --Second, Justice Scalia, if indeed it was a finding of fact, yes, that finding of fact was clearly erroneous.

Justice Scalia: --On the basis solely of the testimony of... of this expert.

Mr. Kissinger: Your Honor, on the basis of the entirety of the record, which is what this Court instructed the district court to examine when it conducts the Schlup inquiry.

Justice Scalia: Including the contrary testimony that said if it had been the result of a spill, it would not have been splattered all over, as it was here.

Some of it wouldn't have been on the inside of the trousers.

Some of it wouldn't have been mixed with mud.

Despite all of that, you... you can say that the district court's finding, which I consider a finding of fact, was clearly erroneous.

Mr. Kissinger: Your Honor, including not only that testimony, but the testimony of the same expert who made the statements which the Court just cited, who said that she was unable... that she was excluding merely the direct spillage, the pouring of blood onto the jeans, and conceded in her testimony that the transfer stains which she observed, the type of stains which she observed could, in fact, have been... that she had no opinion as to the cause of those, only that it was the result of one object wiping against another object.

Also, in light of the testimony regarding--

Justice Scalia: Excuse me.

I... I agree that all of this stuff would... would have made a better case for the defendant here.

But once the case has been tried and both sides have put on all the evidence they have, we have a... a much different test, and... and that is whether any reasonable juror could have found him guilty.

That's a very heavy burden, whether any reasonable jury could have found guilt.

I agree it would have been a much closer case, but... but the burden you... you have before us here is to establish that no reasonable jury could possibly have found him guilty.

Mr. Kissinger: --Justice Scalia--

Justice Scalia: And on... just on the blood thing alone, I... I find that a hard burden to bear.

Mr. Kissinger: --Justice Scalia, there... there are two things which come into the... into the Court's analysis.

First is the Court is correct.

The burden is quite high, and it's... it's high for a reason.

It's justifiably high.

We don't shrink from that burden, Your Honor.

What we say is that along with that burden, the Court also requires that the entirety of the evidence be reviewed.

If the entirety of the evidence is reviewed and the effect of the entirety of the evidence on a properly instructed, reasonable juror... that's the nature of the... the determination... what effect will that have?

When we look at the facts in this case, when we look at the blood evidence in this case, yes, we don't deny that there is evidence which could support conviction.

However, that is not the test in Schlup.

Schlup specifically rejected that inquiry.

Justice Breyer: What did it rest on?

What... what is the district court's conclusion?

The court concludes that the spillage occurred after the FBI crime lab received and tested the evidence.

What does that rest on?

Mr. Kissinger: Your Honor, quite frankly, we can't determine that... that statement rests on anything.

The undisputed evidence in the record consists of a photograph of the blood samples at the time they were received by the defense expert.

The box was opened.

A photograph was taken.

The photograph shows clearly that one entire tube of blood is missing and the second tube of blood has leaked within the packaging.

But the record also contains the testimony of the TBI agent who transported the blood from the FBI to the defense expert who said he observed no blood that leaked other than the... other than what was inside the container.

It also contains the testimony of the FBI agent who tested the blood at the FBI who said two things.

One, I used no... no more than one quarter of a tube of blood and that no blood spilt while the tube was in the possession of the FBI.

Justice Scalia: It also contained the testimony of an expert who said that if the tube spilled in that way, it would not have created the kind of spatterings that... that were incriminating in this case.

Even if there was some spill, it would not have produced the kind of spattering.

So, you know, I call that a draw.

Mr. Kissinger: Your Honor, two... two things to... two things to point out there.

First is that that eliminates only one possible hypothesis and that is the hypothesis that blood was directly spilt onto... onto the... onto the jeans.

I think the example that the expert gave was these are not stains, for example, the pouring of a... like coffee... pouring coffee onto the lap of your jeans or something like that.

These are simply transfers, one bloody object wiped against another.

So while she gave a hypothesis of guilt... and again, Your Honor, it comes to the could and would distinction.

If it... that could be considered evidence of guilt, what would a... but, however, that's not the inquiry.

The inquiry is what would a reasonable juror who heard that on one side, that it didn't spill directly, but on the other side, heard the evidence that we began... that I began to discuss with Justice Breyer, which is the evidence of the TBI agent, the photographic evidence, the evidence of the FBI agent, the evidence that the styrofoam box was opened during transit to the FBI and that objects were removed from it during transit.

Justice Kennedy: I have two questions on the blood, and there's a lot you want to cover here, so I won't take too much of your time.

One, is it significant for your case that this was a very small sample?

Two, was the evidence about the enzymatic degradation... was that available?

Was the science about that fully available to the defense at the time of trial?

I had those two questions.

Mr. Kissinger: Justice Kennedy, in terms of the... the size of... of the bloodstains, it was significant to the extent that it bears upon the probative value of the testimony of Charles Scott when he says... when he said he saw what he thought might be stains.

As a simple matter of fact, this... the jeans were stained with a number of substances, not just blood, and a number of witnesses, including the trial prosecutor himself, described the bloodstains as actually so small that they were difficult to detect by the human eye.

The second part of your question, Justice Kennedy, yes.

That evidence was available.

And our position is that it... that goes actually to the substance of our constitutional ineffective assistance of counsel claim.

Trial counsel had in his possession... or his expert certainly had in his possession the photograph that showed an entire tube of blood missing.

Therefore, he had evidence that there was something wrong with the blood.

Trial counsel was actually concerned about this blood.

He filed a pretrial motion to suppress this blood evidence.

Here's trial counsel with evidence that blood is missing.

He knows it's a critical issue in the case and he failed to go out and hire someone like the assistant chief medical examiner for the State of Tennessee who came into Federal court and testified as to the... that the source of this blood was, in fact, that empty tube.

Justice Scalia: That... that would be an important point if, in fact, it conclusively established that the blood was not the blood of the victim, but I don't think it does conclusively establish that, and if it doesn't, the... the less than perfect performance of counsel is... is no basis for setting aside the conviction.

Mr. Kissinger: Your Honor, two matters on that.

Again, the proof of innocence does not have to be absolute.

This Court stated in Schlup that the fact that there is still some evidence of guilt or that there still exists even substantial evidence of guilt does not prevent a defendant from passing through the Schlup gateway.

The second matter and one which I think is important is that as a matter of Tennessee law, a circumstantial evidence case requires not only that the prosecution prove its case beyond a reasonable doubt, but that it eliminate all reasonable hypotheses of innocence.

So even if a jury could conclude that the blood came during... that the blood got on the jeans during the course of the crime, it would also have to be able... it would also have to be probable that the same jury would also conclude that it was an impossibility for Mr. Blake... Dr. Blake's testimony to be correct.

So, in fact, it's Dr. Blake's testimony which has to be impossible to... to accept in order for a jury to find... a reasonable juror to find--

Justice Ginsburg: Justice Scalia said blood of the victim.

You don't contest that this was the blood of the victim.

The question is at what point did it get transferred to the jeans.

Mr. Kissinger: --That's correct, Justice Ginsburg.

Justice Ginsburg: There's no question about it being someone else's blood.

Mr. Kissinger: That's correct, Justice Ginsburg.

The question has been, from the beginning of this case, when the blood came to get on Mr. House's jeans.

Justice Scalia: Right.

And... and the point of controversy is whether a spill of... of the... of the blood in... in the course of transport could have produced this... this kind of... of spattering, including a spattering on the inside of... of the trousers near the button.

It... it seems to me unlikely, and... and I am unable to say that no reasonable jury... juror could not think it unlikely.

Mr. Kissinger: Justice Scalia, I... I would disagree with... with the Court's analysis there.

I... I think what... what the issue here is more whether, given the testimony of Dr. Blake, given the corroborating evidence that supports Dr. Blake's testimony, would a reasonable juror have doubts or would any reasonable juror have a... retain a reasonable... excuse me--

Justice Scalia: It's much more than that.

Mr. Kissinger: --Let me rephrase that, Justice Scalia.

The question is, given the Tennessee jury instruction--

Justice Breyer: Any reasonable juror would have had to have a reasonable doubt.

Mr. Kissinger: --Yes, thank you, Justice Breyer.

Justice Breyer: All right.

And you're saying yes, any reasonable juror would have had to have a reasonable doubt irrespective of what the trial judge found.

Mr. Kissinger: That's correct, Justice Breyer.

Chief Justice Roberts: So the... so the... we would have to be finding in this case, if we ruled in your favor, that we think the trial judge is unreasonable.

Mr. Kissinger: Your Honor, that's actually not correct either.

Schlup specifically says that the function of the district judge in a Schlup hearing is not to make an independent judgment on the evidence in front of him, but to make a probabilistic determination of the effect of the evidence on a reasonable juror.

Justice Scalia: Oh, but surely he's supposed to make factual determinations.

We... I... I don't want to make factual determinations on all these questions.

That's... that's not our system of law.

Those factual determinations are made by the trial judge.

And here, I agree with you that we don't have to accept his judgment as to what a reasonable juror would have done, but I do think that we have to accept his factual findings as accurate unless they're clearly erroneous.

And here, he made the factual finding that that blood was there before the transport.

And I... I think I'm bound by that unless you can show that it is clearly erroneous, which I don't think you can.

Mr. Kissinger: Your Honor, first, we... we believe we have... have shown that it's clearly erroneous.

Second, even viewing the blood evidence separately, even saying, well, Mr. House has put up some evidence of... some evidence of innocence regarding this blood evidence, but not enough to really sway me regarding that, that evidence itself has to be viewed in light of the entire record.

And in light of the entire record, that blood evidence, standing alone in its even somewhat compromised state, no reasonable juror would be able to come to the conclusion that Mr. House was guilty because the remaining evidence of his innocence is also very substantial.

Justice O'Connor: Are you going to mention any of the other, or are we going to just deal with the blood today?

Mr. Kissinger: Justice O'Connor, we... we would like to move on to... to some of the other evidence because it... it is substantial.

And we've set... we've set out a lot of that evidence beginning at page 6 of our reply brief.

Justice Ginsburg: Will you also cover, because your time is short, if you get through the gateway on your actual innocence contention, what are your constitutional claims that lie behind it?

Because I don't think much was said about in the briefs.

What is it that you would... you would say if you got through the gate?

Mr. Kissinger: Justice Ginsburg, as... as I mentioned earlier, we believe that we have numerous instances of ineffective assistance of counsel.

First, counsel's failure to... upon knowing of the importance of the blood evidence, which he clearly did because he raised... raised the issue himself, upon knowing of the photograph showing the missing blood, he failed to go forward and basically do what we did in Federal court, which was hire an expert to look at the results of the FBI testing and to determine whether there was a viable defense... a viable defense strategy available there, which he did not.

Also, if we look at the record in this case, we have a situation where trial counsel also pointed toward Hubert Muncey, Jr. as the actual perpetrator of this crime.

He actually called the sister of the victim to say that his sister was afraid of Mr. Muncey and that she had plans to leave him.

When we look at what was available to trial counsel there, we see five witnesses, many of whom were friends of Mr. Muncey, who presented evidence that showed that on the night of Ms. Muncey's murder, Mr. Muncey and Ms. Muncey had a fight at the C&C Recreation Center, that Ms. Muncey went home, that Mr. Muncey followed her there, that he confessed that when he returned home, he was angry and drunk, that they began to argue again, that he struck her in the head, that she fell, that he checked her lifeless body and found she was dead, and that he hid her body in the bushes.

Justice Scalia: But... but the... the injuries on the body are simply not consonant with... with that manner of her... of her death.

A police officer testified not only to a head injury, but to blood coming out of the nose and ears, scratches and bruises on her throat and legs, scratches on her face.

That simply is not consonant with one whack on the head.

Mr. Kissinger: Justice Scalia, there... there are two issues there.

In fact, the... the pathologist's testimony and... and the law enforcement officer's testimony is consistent to the extent that the injuries which Mr. Muncey described inflicting were, in fact, inflicted upon the victim.

There were those injuries.

The point... the fact that there were additional injuries to the victim... to the victim assumes that somehow Mr. Muncey's independent, short confession, because, remember, when he started to confess... after he makes this confession, he's rushed out of the home and told that they don't want to hear anything.

This isn't a situation of like a law enforcement... a confession made to law enforcement where once obtaining evidence of guilt, law enforcement pursues and tries to get as many of the details out of it.

I don't believe that it would be... it's significant or it would be significant to any reasonable juror that Mr. Muncey did not describe every single injury that he inflicted on Ms. Muncey that night.

Justice Breyer: You've mentioned... in response to Justice Ginsburg, you didn't mention... and perhaps it was inadvertent.

If not, I want to know why not.

I thought if you get through the gate, what you're going to say is the State should have given us evidence that they had that showed that Mr. Muncey had sexual relations with his wife the morning of the killing, and therefore, the semen that they found didn't necessarily belong to your client, but rather belonged to him.

As it turned out, it didn't.

Mr. Kissinger: That's correct, Justice Breyer.

Justice Breyer: So you're going to make that Brady claim.

Mr. Kissinger: We... we are going to also make the Brady claim.

In addition, Your Honor, if indeed that evidence was available to trial counsel, who did talk to Mr. Muncey, who was able to interview Mr. Muncey, and failed to ask Mr. Muncey whether he had had sexual relationships with his wife, even though trial counsel attempted ineffectively at trial to... to show that... that that semen belonged to Mr. Muncey.

So it's one of those situations, Justice Breyer, where there is either Brady for the State's failure to turn it over, or if it was available, it's another instance of ineffective assistance of counsel.

Chief Justice Roberts: Counsel, could I step... step back a little bit to get... to get back to the standard of review?

Because I think it's an unusual one.

You started out by talking about what the first jury knew and didn't know, but we are in no sense reviewing that jury determination.

Correct?

Mr. Kissinger: That is correct, Justice Roberts.

Chief Justice Roberts: We are supposed to look at all of the evidence, the new evidence and the old evidence, and determine simply whether or not it would be unreasonable for any juror to vote to convict on the basis of all of that evidence.

Is that right?

Mr. Kissinger: Your Honor, what Schlup says is that we are to step back and see whether it is more likely than not that no... that any reasonable juror would vote to convict.

Justice Breyer: Any reasonable juror would have to have a reasonable doubt.

Mr. Kissinger: Would have... would have... that's correct, Justice Breyer.

Chief Justice Roberts: So, in other words, no reasonable juror... no... no juror could reasonably vote to convict.

In other words, if we look at this evidence and think that... and again, we're not reviewing the prior jury's evidence.

If we look at this and say, maybe a jury would come out 10 to 2 in favor of acquittal, if we think that would be reasonable, then you lose.

Right?

Mr. Kissinger: Chief Justice Roberts, I--

Chief Justice Roberts: Under my hypothetical there are two reasonable jurors who vote to convict.

Mr. Kissinger: --Chief Justice Roberts, the danger in that hypothetical is that we are approaching an area where the definition of the reasonable juror becomes something subjective.

The definition of a reasonable juror is not a subjective inquiry.

In fact, it's a... it's an objective inquiry.

So to that extent, I would have to disagree with... with your analysis or your... or your hypothetical, which is that maybe there might be two jurors out there who would listen to this evidence and vote to convict Mr. House.

I don't think that's a correct statement--

Justice Scalia: Well, Schlup shouldn't... shouldn't have expressed it that way then.

Schlup must have... must have made a big mistake when it said no reasonable juror could.

It should have expressed it differently and said a reasonable juror would not... would not have found, but they didn't say that.

It said no reasonable juror.

Mr. Kissinger: --Your Honor, I believe the Court in... I believe the Court in Schlup took the word reasonable to encompass the point which I have just made.

Justice Souter: Well, didn't... you... you have accepted Justice Scalia's formulation, but my understanding is that Schlup did not say no reasonable juror could.

Schlup said no reasonable juror would have.

Isn't that correct?

Mr. Kissinger: And that's correct, Justice Souter.

Justice Souter: But I mean, it's would, not could.

Mr. Kissinger: It... it is would.

Justice Souter: Could would imply a sufficiency of evidence possibility of analyzing it, but the would language excludes a sufficiency of evidence.

The... the would formulation says, in effect, what would the reasonable juror actually have done.

Is that your understanding?

I mean, is that your point?

Mr. Kissinger: That is, Justice Souter.

Justice Scalia: Or more precisely, what would all reasonable jurors have done.

Mr. Kissinger: What would any reasonable juror, Justice Scalia.

Justice Scalia: All reasonable jurors.

Mr. Kissinger: I believe the language is any.

Well, if there are no more questions, I'd like to reserve the remainder of my time.

Argument of Jennifer L. Smith

Chief Justice Roberts: Thank you, Mr. Kissinger.

Ms. Smith, we'll hear now from you.

Mr. Smith: Mr. Chief Justice, and may it please the Court--

The evidence presented in the district court fails to raise sufficient doubt about Mr. House's guilt to justify review of his procedurally defaulted claims because reasonable jurors would not ignore the fact that Mr. House's jeans were stained with the blood of Carolyn Muncey.

That is a fact that has not been undermined by any of the evidence presented in the Federal habeas proceeding.

The enzymatic degradation theory of Dr. Blake was so thoroughly discredited in the Federal evidentiary hearing that it is highly unlikely that any reasonable juror, viewing all the evidence, would be convinced by it, let alone that everyone would vote to acquit in light of it.

In fact, the petitioner's evidence of innocence was disputed in nearly every respect and sorely--

Justice Breyer: How was... how was that?

I thought you'd go on to say how that... how was it?

I... I read that Dr. Blake said this.

He said, look, I... there... there are tiny little specks of blood on the jeans and we test them.

They were tested.

And they show that a certain enzyme deteriorated to degree X, and that's true of the test tube blood as well.

Both deteriorated to degree X.

But if you take fresh blood and splatter it, there will be no deterioration.

So conclusion, the blood on the jeans came from the test tube.

Now, you say that was discredited, but I didn't read anywhere anything that discredited it.

What was the discrediting of that?

Mr. Smith: --That was specifically discredited by the... by the testimony of Agent Bigbee.

Justice Breyer: Who said?

Mr. Smith: Dr. Blake's specific opinion was that his interpretation of the enzyme marker study, specifically the GLO1 enzyme on the jeans and on the vial--

Justice Breyer: Right.

Mr. Smith: --showed inc... inc--

Justice Breyer: Yes.

Mr. Smith: --which he took to mean incomplete penetrance.

Justice Breyer: Yes.

Mr. Smith: Agent Bigbee specifically disputed not only the literal interpretation of that, in that it doesn't mean incomplete penetrance.

In fact, Agent Bigbee did not know what that even meant in the area of serology, but he... he disagreed with the meaning that Dr. Blake ascribed to that... to that definition... to that notation.

Justice Breyer: Which meant what?

Mr. Smith: Which Dr. Blake concluded that--

Justice Breyer: Was incomplete, and what did the FBI man say it was?

Mr. Smith: --Agent Bigbee testified... or Dr. Blake testified that the inc meant that the enzyme was not present, that it had dropped out.

Justice Breyer: He... he says it meant incomplete.

And what do you... what did... what did Dr. Bigbee say it--

Mr. Smith: Dr. Blake said it was not present.

It had dropped out.

Agent--

Justice Breyer: --Now... I... Dr. Blake, you just said, said that the word inc meant incomplete.

Mr. Smith: --That's correct.

Justice Breyer: And you say Dr. Bigbee discredited that by saying, no, it didn't mean that.

Justice Scalia: It's Agent Bigbee.

I'm getting confused.

Justice Breyer: It meant something else.

What is the something else?

Mr. Smith: Agent Bigbee testified that inc means--

Justice Breyer: Means.

Mr. Smith: --inclusive--

Justice Breyer: Fine.

Now, all right--

Mr. Smith: --which means that the enzyme is present--

Justice Breyer: --Fine, okay.

Mr. Smith: --but that he could not subtype it.

Justice Breyer: They don't know how much.

Now, I have on page 119, which they cite, of the transcript Mr. Pruden is talking to Mr.... Dr. Blake.

Would your opinion change, doctor, if the, quote, inc notation meant inconclusive rather than incomplete penetration?

Answer, same difference.

Question, so your opinion would not change?

Answer, that is correct.

Mr. Smith: But the... the dispute goes beyond the literal interpretation of the inc.

It goes to the meaning ascribed to it.

And Agent Bigbee disagreed that Dr. Blake... with Dr. Blake's conclusion that the inc indicated that the enzyme had dropped out of the sample.

He said it was present.

It could not be typed.

Agent Bigbee also disagreed with Dr. Blake's overarching theory that there was equal deterioration in the vials... in the blood in the vials and the blood on the pants.

In fact, Agent Bigbee went through step by step--

Justice Breyer: But it would have been the easiest thing in the world for you if, in fact, you think that this is not true that enzyme GL706BX, contrary to what Dr. Blake said, had not deteriorated in the blood spot, do a test.

Find out if it's deteriorated or not.

Can't... can't that be done?

I mean, Dr. Blake in this part is reading his own report.

His own report says the enzyme deteriorated in the spots on the jeans, and I see nothing here that says to the contrary.

But if that weren't true, the blood is right there, and if it weren't true that it had deteriorated, I would have expected testimony, at the least, saying no, Dr. Blake, you are wrong.

Mr. Smith: --Your Honor, that--

Justice Breyer: The blood did not deteriorate.

The enzyme did not deteriorate.

But there is no such testimony.

Instead, you seem to be relying on the difference between the word incomplete and inclusive, a difference that Dr. Blake says is inclusive or incomplete.

Mr. Smith: --Dr. Blake was not reading his own report.

Dr. Blake performed no independent analysis.

Dr. Blake was reading Agent Bigbee's report.

Agent Bigbee was explaining to the district court the meaning of the notations that he included in his report.

But the... but the dispute goes beyond just experts.

Chief Justice Roberts: So Bigbee... Bigbee was explaining what he meant when he wrote inc.

Mr. Smith: That's correct, Your Honor.

Chief Justice Roberts: And it was different than what Dr. Blake said it meant.

Mr. Smith: That's correct, Your Honor.

The report at issue was a report prepared pretrial by Agent Bigbee when he did the... the initial enzyme analysis.

Justice Scalia: The district court heard all of this, didn't it, all this evidence, and... and didn't the district court make a factual finding?

Mr. Smith: That's correct, Your Honor.

Not only did the district court note--

Justice Scalia: I mean, we... we can call in these witnesses ourselves, I suppose, and hear them all again, but we usually accept the factual findings of the trier of fact.

Mr. Smith: --That's correct, Your Honor.

And the district court specifically found as a fact that the blood spill--

Justice Stevens: But does that finding rest on the conclusion that Dr. Blake was not credible and Agent Bigbee was credible?

Mr. Smith: --I think that that conclusion implicitly includes a finding that Agent Bigbee was... was credible and Dr. Blake was not credible.

Justice Stevens: And that Dr. Blake was not credible.

Mr. Smith: There were additional--

Justice Stevens: And who... what was Dr. Blake's background?

Mr. Smith: --Dr. Blake's background is... is that he was a forensic pathologist.

Justice Stevens: Employed often by the State?

Mr. Smith: He was often employed by the State.

He had a history of... of being employed by the State.

At this time, he was not a State agent, Your Honor.

He was not... had not worked in any way, shape, or form on this case.

He did not perform the autopsy.

He did not view the body.

He did not perform the enzyme marker study in this case.

He simply came in and reviewed results and photographs that had been conducted and taken by... by individuals previously.

He had no direct responsibility in this case aside from--

Justice Stevens: So you're... you're basically arguing he was not a credible witness.

Mr. Smith: --He was not a credible witness, Your Honor.

Justice Breyer: What... what is the answer to my question?

Because I do think it turns on this.

A lot does.

The trial judge sat there and said this is very important.

Dr. Blake is quoting from something called part 5, which I thought was his report.

And then the trial judge says, where did you get that idea?

Where did you get that idea, that the... that the enzyme wasn't there in... in the jeans' blood?

Where did you get it?

And he says I got it from the FBI report, I think.

He's not certain because he's remembering his own conclusion.

He isn't quite sure where he got it from.

And now it turns out that the inc when they... it said inc, which he thought meant there isn't much enzyme there.

And then they say, well, maybe it meant inclusive.

And he says, that wouldn't matter because I guess I took it to mean that too would show there wasn't much enzyme there.

Both would come to the same thing.

And now, if I'm sitting there and thinking, I'm thinking, well, either there is or there isn't this enzyme in the... in the blood that's right there.

Easiest thing in the world to prove.

And if somebody is going to dispute it, the State will come back and say, no, no, the enzyme is there.

But they didn't.

So I read the testimony and I read the fact that you didn't dispute it with any evidence that's saying, yes, the enzyme is not there.

Mr. Smith: Your Honor, Agent Bigbee specifically testified that the enzyme was there.

Justice Breyer: He did?

Where is that?

Mr. Smith: He specifically testified on page 282 of the joint appendix.

He specifically said, that doesn't mean it wasn't present.

He also pointed out GLO should have been present--

Justice Breyer: Let's--

Mr. Smith: --and said it wasn't.

Justice Breyer: --It doesn't mean it isn't present isn't quite the same thing, is it?

Mr. Smith: Agent Bigbee specifically testified that the enzyme was present.

It could not be typed to any degree of certainty.

So he simply called it inconclusive but that it was present.

If it had not been present, he would have marked N/A, meaning no activity, which was also included in the report in a separate location.

But I think it goes beyond--

Justice Ginsburg: Ms. Smith, would... could you focusing on this, what's called a finding, although the district judge himself puts it under conclusions of law, just... the court concludes that the spillage occurred after the FBI crime laboratory received and tested the evidence.

What is the basis, the specific basis, for that conclusion, that it occurred after the FBI tested the evidence?

Mr. Smith: --The specific basis identified explicitly in the opinion was that Special Agent Scott, when he removed the... the blue jeans from the hamper in Donna Turner's trailer, saw what appeared to be bloodstains on the jeans.

That blood ultimately ended up testing as... as positive for blood and, in fact, Carolyn Muncey's blood so that... so that the stains were observed when they were removed from the hamper.

He also noted that Agent Bigbee testified when he received the blood at the... the FBI laboratory, there was no evidence of contamination.

Agent Bigbee testified to the FBI protocols and said that if there had been any evidence of contamination or spillage, the evidence would have been returned without testing.

So he looked specifically at that.

He also looked and specifically pointed out a significant... the testimony of Paulette Sutton, who indicated... who was the blood spatter expert.

She indicated that some of the bloodstains were mixed with mud, and to her that indicated that there had not been some accidental spillage in... in an evidence container, that the mud and the blood would have... were... were combined to the extent that they would have to get on the jeans at or near the same time.

So those... those things--

Justice Ginsburg: Yes, but then there was also the evidence that was not disputed, that it was a dry day and that there was no mud at all at the scene of the crime.

Mr. Smith: --Your Honor, I'm not sure that the evidence is undisputed that it was a dry day.

If you look at the autopsy report that's in... that's in evidence in... in the trial record, it specifically says that it was drizzling that day, that the temperature was between 80 and 90 degrees and it was drizzling.

Mr. House showed up with blood all over his jeans.

He got the blood somewhere.

I don't... nothing is... I don't think it's entirely clear that... that the conditions were dry.

His... his jeans were clearly muddy--

Justice Ginsburg: I thought that was--

Mr. Smith: --and it showed up.

Justice Ginsburg: --that it was agreed that there... that the site where the body was found, that that was dry, that that was dry ground.

I thought there was no dispute about that.

Mr. Smith: I'm not sure that... that it's clear where Mr. House got the mud on his jeans.

He was... he traveled some distance from the site of the body and... and to his home.

He could have gotten muddy en route.

I... I can't explain how he got the blood on his jeans.

I know he showed up with muddy jeans.

He got mud on his jeans at some point, and those... and the mud and the blood were... were intermingled.

I'm not sure that they got on there at the same time.

I'm also not sure that the mud that Paulette Sutton saw was... was created by a combination of mud and water.

It could have been perspiration.

It could have been any other type of... of fluid.

It could have been blood creating the mud.

So it's... that is... that's very ambiguous, and... and I think that the fact... the significance of the testimony is that it... it did not indicate an accidental spillage after the fact of the blood onto the jeans.

And I think that was... that was the point that the district court took from that.

He wasn't trying to... to recreate the exact sequence of events in the crime.

He was simply trying to pinpoint at what point the blood spilled because there's no question the blood spilled.

The... the photograph shows it spilled.

The photograph shows that the... that the tops had come off.

But the... the photograph also shows--

Justice Kennedy: But... but isn't there also evidence that the spillage in the styrofoam container seemed to be inadequate to account for all of the blood that was missing from the vial?

Mr. Smith: --I think there was testimony that... that the appearance of it seemed to be inadequate.

There was no specific quantification of the blood, and... and no one... no one attempted to do that.

It's not clear whether some of the blood leaked out of the container and maybe wasn't contained within it.

There were... there were pieces of gauze that had blood soaked in it.

There was also a dispute about the size of the vials.

Justice Kennedy: Well, but that's important for this whole question.

Quantity relates to chain of custody.

Mr. Smith: Your Honor, I think what's important is the point of the spillage.

If... if the blood spilled after it left the FBI lab... and that was a specific finding made by the district court, and that finding is clearly supported by the record.

What happened to the blood, where it spilled after the fact... and we know that it did spill... really is... is beside the point because--

Justice Breyer: Another blood question because I... the... you make a point of the... the sheriff having said, well, I... I saw blood on the jeans.

So I looked at the pictures and the pictures seem to have little tiny bits of blood, while a lot of mud.

So I came to the conclusion that no reasonable person could think that that testimony really shows that the... that there was... there was blood from the... from the victim on his jeans.

Now, am I right about that?

You're going to think I'm wrong, and I want to hear why.

Mr. Smith: --Well, I do think you're wrong, Your Honor, because I... I think that if you look in the record, there are at least four witnesses who indicated that they saw the blood.

One was Special Agent Scott.

Justice Breyer: How could you have?

It's so tiny.

Mr. Smith: Well, Your Honor, the... the photographs that you have are photographs that are taken after portions of the jeans have been cut out and sent for testing.

You're not seeing everything that... that the agent saw.

Special Agent Scott saw what he believed to be blood.

He couldn't... he didn't know it was blood, but... but he suspected it was blood.

He identified in... in the habeas proceeding the areas that he believed it to be blood, and it turned out to be blood.

Jerry Morissey, who was the defense serologist and... and, incidentally, just to... that reminds me of... of a comment made by my colleague in his argument about defense counsel's deficiency in not... in not hiring a serologic expert.

He had a serologic expert.

Jerry Morissey testified, was a serologist, and testified that he received the jeans after the FBI tested it.

He was unable to duplicate the result, but as part of his testimony, he said that he observed some bloodstains, what he thought to be bloodstains, around the FBI cuttings, and he attempted to do additional testing on those bloodstains.

So he saw the stains.

Agent Bigbee testified that he observed the stains.

He didn't say that some were big or some were small.

He said that he observed them.

As well, Paulette Sutton in the Federal habeas proceeding said that she saw the stains.

She said she couldn't tell upon observation that it was blood, but it was dark and she suspected it was blood.

It was suspicious.

So we have at least four witnesses who say they saw this blood.

This wasn't microscopic.

This was something that... that witnesses... and incidentally, Paulette Sutton's observation was borne out because she did presumptive testing.

So the things that... the spots that she suspected were blood in fact turned out to be blood.

Justice Scalia: Ms. Smith, could... could you go on to some of the other elements that are contested here?

In particular, I'm interested in... in Mr. Muncey's confession.

What... what do you... what do you say about that?

Mr. Smith: Your Honor, I... I think of all the evidence presented below, I think that the confession evidence is... is perhaps the least reliable in terms of... of the Schlup analysis.

Justice O'Connor: What did the jury hear about Muncey's confession?

Mr. Smith: The jury was never informed of Muncey's confession because the--

Justice O'Connor: I thought not.

Mr. Smith: --the fact of Muncey's confession didn't come up until 13-14 years after the trial had already been concluded.

And... and that's one of the things that the district court, in... in examining their testimony, found what was significant in his--

Justice Souter: But wasn't the district court incorrect in that?

Because as I understand it, there was evidence from one of the two witnesses who put in the confession evidence that she had gone to the sheriff's department to... to tell them about the confession and had simply gotten a runaround and finally left.

So as I understand it, the... the record would not support the finding that... that the... the sources of evidence simply kept silent for over a decade.

Mr. Smith: --Well, that's what the witness testified to, Your Honor.

Justice Souter: Well, is there any reason not... did the... did the district court explain that it was rejecting that element of the witnesses' testimonies?

Mr. Smith: The district court did not specifically address that element of the witnesses' testimony.

The court found that it... specifically that it was not impressed with the testimony of a witness who waits.

And... and this Court has said on many occasions that--

Justice Souter: I know, but without getting to that point, it sounds as though the district court simply made a mistake, just forgot I suppose, the evidence that the witness didn't wait at all.

Mr. Smith: --Your Honor, regardless of whether the witness waited or not, the Court examined the credibility of the testimony and found that it wasn't credible.

Justice Souter: Well, but one of the reasons for the finding of... of incredibility was the decade or more of silence.

Mr. Smith: That was one of the reasons, but the primary reason that the... that the confession itself was inconsistent with the other evidence, and that was what the court specifically pointed to in his opinion.

Justice Souter: Well, the... tell... help me out here.

As... as has been explored earlier, the confession referred to... to some of the injuries on the body, but not to all of them.

Were there... were there other disparities between the confession and... and the... and other evidence?

Mr. Smith: There were several disparities, Your Honor.

The confession indicates that there was apparently an extensive argument at home.

The testimony of the daughter both at trial and in the habeas corpus proceeding was that there was no such argument.

She heard no argument.

And the court, incidentally, found her testimony to be very credible.

He observed her demeanor and... and found her testimony to be credible.

So that's inconsistent.

Justice Ginsburg: Well, as far as that's concerned, she did testify that there was a car out there.

Mr. Smith: That's correct.

Justice Ginsburg: And the rest of the story doesn't... doesn't put the defendant House at the time of the crime in a car.

He's walking.

Mr. Smith: Your Honor, the... the testimony at trial was ambiguous about the... about the car.

The witness identified two separate incidents.

She heard a car and she heard someone inquire as to Mr. Muncey's whereabouts, and then she also heard an individual come and tell her... her mother that her father had been in a wreck down by the creek and heard her mother leave sobbing.

Those are two distinct incidents.

And Lora Muncey testified that she did not know whether she had gone back to sleep.

She never could identify or... or define the specific length of time between the two.

But logically those are two separate incidents.

It doesn't make sense for someone to come and ask where Mr. Muncey is and then to say, well, he's down by the creek.

He just had a wreck.

So it... it seems that just logically those are two separate incidents, and there's nothing in the... in the testimony to indicate that... that they're same.

Justice Ginsburg: But they happened at the same time, didn't they?

The--

Mr. Smith: No, Your Honor.

The--

Justice Ginsburg: --the child testified to what she heard, and I thought she heard a car and someone in a low voice, and then her mother left with that someone.

Mr. Smith: --No, Your Honor.

She heard a car and someone inquire as to the whereabouts of her father, and she heard her mother answer.

And then there was a period of time where she said she wasn't sure whether she went back to sleep or not, and then she heard a person with a low voice come in and inform her mother that she... that... that her father, Hubert Muncey, Jr., had been in a wreck down by the creek.

She heard her mother sob and leave with the individual who had relayed that information.

Those are two distinct incidents.

But beyond that... the... the court, incidentally, found her testimony to be very credible, found that her testimony did not support this... this theory of some sort of confrontation in the house.

In addition, the court also heard the live testimony of Hubert Muncey, Jr. himself, explaining his whereabouts, explaining... and actually denying ever having made the statement.

And... and the court balanced that.

As well, Dennis Wallace, who testified at the evidentiary hearing... he investigated a missing person's report.

He was in the home.

He saw no evidence of any sort of struggle in the home.

So all of these things balanced against this... this confession, which has absolutely no corroborative support in the record, the court found that the testimony simply wasn't credible.

Justice Stevens: Well, it did have corroboration.

Wasn't there a... a wound on the victim that was consistent with... with the confession?

Mr. Smith: There was a... a wound to the victim's left forehead.

Justice Stevens: Was that not consistent with the confession?

Mr. Smith: The confession was that Mr. Muncey hit her and she fell and hit her head.

Justice Stevens: You tell me yes or no.

Was it... was it consistent with the confession?

Mr. Smith: It... it could be consistent with the confession.

It was... it was very sketchy.

There... there was a dispute between the two pathologists in the habeas as to whether or not that... that wound could have been sustained by... by falling and hitting her head on the table and actually could have created the... the damage in... in the brain.

Justice Breyer: So overall, if... looking at this... and that's why I think the question about the weight to give to the fact finding is important.

You think... you have a theory under which he could have done it, and it's certainly possible in my opinion.

But also you think, my goodness, if he did it, going and this luring of the woman to the creek... you know, there's nothing else in the record that suggests he would plot in that way to do this.

Nothing.

The husband is away at the time from the dance.

He could have done it.

They are fighting.

They could have done it.

And if the luring theory correct, the motive was sexual, but the sexual physical evidence is from the husband, not from him.

So the jury is brought into this on a theory that there is a sexual attack and the one... by the defendant, and the one thing that seems disproved pretty much is that.

And now we have two experts, Dr. Blake and Dr. Bigbee.

And reading a page, which I hadn't read thoroughly until you pointed it out, I'd say they might disagree.

They might disagree.

And it's just not conclusive.

So if you're sitting there, do you have to have a reasonable doubt when there's such strong evidence for both people?

And... and the part that's bothering me... I... I see what that district judge said on that one point, which he may have thought was peripheral but it turns out to be quite important about when the blood spilled.

But if you look to the underlying thing and I think, well, maybe you're right, but maybe you're not right.

And so how do... how do I... how do I do this?

What's the... what's the weighing?

I sit there and think, my goodness, I don't know who committed this crime if I'd been on that jury.

And could... could a person sitting there reasonably come to a conclusion, my goodness, I know?

Mr. Smith: Well, Your Honor, to answer your question is if you are at that mental state where you are saying maybe this evidence is right, maybe that... that evidence is right, maybe I can go one way or another, then I think the respondent prevails in this case--

Justice Souter: Well, but that... that says if the... it seems to me you're simply saying there would be sufficient evidence to go the one way rather than the other.

And... and you may well be right about that, but that certainly is not the reasonable doubt standard.

Mr. Smith: --I think it goes beyond just having sufficient evidence to convict, Your Honor.

I think you also look at these credibility determinations and you look at the probabilistic result of a reasonable juror.

Justice Scalia: Justice Breyer has not heard these witnesses and hasn't had the opportunity to know whether... whether, for example, these... this testimony about the confession was credible or not.

Mr. Smith: That's correct, Your Honor.

Justice Scalia: And the hearer of... at the trial did have that opportunity.

Mr. Smith: The district court heard both of the... both of the sisters regarding the confession.

The district court heard Hubert Muncey, Jr. regarding the alleged confession.

Justice Souter: But... but may I interrupt you?

What... what about... I want to just follow up on something that Justice Breyer alluded to and that is the significance of the DNA evidence.

And I have tended to... to think that a reasonable juror would look at it this way, but if I'm wrong, I... I want you to comment on it.

One of the... I... I assume, to begin with, that any reasonable juror would have found this evidence, the evidence of the semen stains, extremely significant because not only did the State argue rape as a... as a motive, possible motive, but there was a specific finding of an aggravated circumstance that the murder occurred in the course of kidnapping and rape.

I don't know of any evidence that would suggest an... an independent kidnapping crime without the rape element under, you know, the circumstances of... of this crime.

So I'm... I... I assume that the reasonable juror, having come to the conclusion that that aggravating circumstance is true, found that a rape was being committed.

If that juror had heard the DNA evidence, that juror would have said the only positive evidence that a rape was committed here would be evidence that pointed to the husband, not in fact to... to the defendant House.

And if... if a juror had heard that evidence, it seems to me it is highly unlikely that any reasonable juror would have concluded that that aggravating circumstance was found, and I suppose that would play a... a significant role in... in the ultimate conclusion.

Now, you have argued that the fact that the DNA evidence shows that it was the husband's fluids, not House's, doesn't conclusively prove that House didn't rape her, and of course, you're right.

But my understanding is that there is no evidence from which one would reasonably infer that House did this.

Now, what is... what is your comment on that--

Mr. Smith: My comment... sorry.

Justice Souter: --analysis?

Mr. Smith: My comment on the DNA evidence is that the DNA evidence did nothing more than confirm what the jury was... already knew was very likely, which was that the donor of the semen was the husband.

The jury at trial was informed that the husband... and it went through several pages.

In the joint appendix, it goes all the way from page 56 to 66 where we're exploring that the semen could have been deposited by the husband or by Mr. House.

Justice Kennedy: But there was a finding that it was in the course of the rape.

Mr. Smith: There was--

Justice Kennedy: That was part of that.

That was... that was one of the... was it one of three aggravating circumstances?

Mr. Smith: --One of three, and... and that was--

Justice Kennedy: It was found at the guilt phase or the trial phase, the aggravating circumstance?

Mr. Smith: --It was at... it was an aggravating circumstance of sentencing, that... that the murder was perpetrated in the... in the attempt... in... in the perpetration or attempt to perpetrate kidnapping or rape or attempted rape.

Justice Kennedy: Well, then at... at a minimum, it seems to me that the sentencing phase is... is in question by that.

But also, it seems to me if I were a juror and was faced with these conflicting things, I always look for motive.

Mr. Smith: Your Honor, the motive is... is well supported by the circumstances.

And in fact, if you look at the prosecutor's argument--

Justice Scalia: There is evidence of rape besides... besides the semen.

The semen wasn't the only evidence of rape, was it?

Mr. Smith: --No, sir, it wasn't.

Justice Scalia: There were scratches on the thighs.

Mr. Smith: There was--

Justice Kennedy: But... but the semen was used to... to connect it to the... to the defendant, and we now know that that's wrong.

Mr. Smith: --The prosecutor argued at trial on the motive question, why else would someone lure a woman out of her home with a lie in the middle of the night in her night clothes and take her out into the woods, if not to have some sort of--

Justice Stevens: Who put in the evidence... who put in the semen evidence?

Mr. Smith: --The State put in the semen evidence, Your Honor.

Justice Stevens: It didn't have to prove that she had sex with her husband?

Is that the reason?

[Laughter]

Mr. Smith: The State put in the semen evidence because it was... it was not inconsistent with Mr. House and that there was other evidence in the record that was not... all of the... all this... this physical evidence was consistent with Mr. House, just as the semen was.

Justice Ginsburg: Isn't it--

Chief Justice Roberts: Can I get back to this... the standard of review question?

Because it goes directly to this point.

Even if you think that the argument based on the semen is not harmless error, in other words, that the prior jury may well have convicted based on that, we're not reviewing that jury's determination.

Correct?

Mr. Smith: That's correct, Your Honor.

You're looking at how... how a reasonable juror would view the case if it knew--

Chief Justice Roberts: So we should be looking at the case with the semen evidence showing what we know it to show, regardless of whether we think the prior jury was misled by the admission of that evidence.

Mr. Smith: --That's absolutely correct, Your Honor.

If... if the... if a reasonable jury knew that the semen belonged to Mr.... belonged to Mr. Muncey and not Mr. House, the result would be exactly the same because Carolyn Muncey's blood was all over Mr. House's pants.

That is an indisputable fact.

And all of this--

Justice Ginsburg: --What about at the sentencing stage?

Justice Kennedy brought it up.

The... the prosecutor didn't emphasize unduly the semen at the... at the guilt stage but, boy, made a big deal out of it at the sentencing stage.

Mr. Smith: --Your Honor, I disagree that... that they made a big deal.

They made a big deal of the kidnapping at the sentencing phase.

That was... that was of significance.

The... what the prosecutor did--

Justice Ginsburg: Where was it in the... in the joint appendix?

I thought it was more than kidnapping.

Mr. Smith: --Your Honor, the... the sentencing phase argument is not contained in... in the joint appendix.

The closing argument from the guilt phase is contained in... in the joint appendix, but it's certainly in the... in the transcripts before the Court.

What... what the prosecutor focused on at sentencing was... was the kidnapping and also was the malice and... and I'm sorry... the... specifically the kidnapping--

Justice Ginsburg: Said nothing about the semen--

Mr. Smith: --The--

Justice Ginsburg: --at the... at the sentencing stage?

Mr. Smith: --At the sentencing phase, the prosecutor said that the evidence would have been consistent with sexual molestation, I think was the word that he used.

Chief Justice Roberts: Thank you, Ms. Smith.

Mr. Smith: Thank you, Your Honor.

Rebuttal of Stephen M. Kissinger

Chief Justice Roberts: Mr. Kissinger, you have 4 minutes remaining.

Mr. Kissinger: Very quickly.

Dr. Blake's testimony was not, in fact, discredited.

Counsel for respondent says that... places great significance on... on Dr. Blake's interpretation of the initials inc as standing for incomplete penetration, and that... correctly that should have been construed as inconclusive.

Counsel fails to acknowledge the record... record 4 of the district court, volume 6, page 906.

Agent Bigbee himself uses the term inc to mean... or incomplete, just as Dr. Blake did.

So in addition to Dr. Blake saying, yes, I meant the same thing as Justice Breyer observed, Justice Bigbee himself uses the term inc to mean incomplete.

Chief Justice Roberts: Page 282 of the joint appendix, he says inconclusive is what the inc stands for.

Dr. Blake testified it is incomplete penetration, which I haven't the foggiest idea what that means.

Mr. Kissinger: And that's correct, Your Honor.

In trial, he used... he said that inc stands for incomplete, and then Agent Bigbee at trial proceeded to use incomplete and inconclusive interchangeably just as Dr. Blake did.

In addition, when... concerning Dr. Blake's testimony, we have to remember that we still have the missing tube of blood, and the blood on the jeans is more consistent with blood coming from the degraded blood sample than it is from blood which came... got on the jeans during the time of the offense.

The other thing, which I think is an important matter to... to keep in... keep in mind regarding Dr. Blake's testimony and Dr. Bigbee's, is that Dr. Blake and Agent Bigbee both agree on the basic science that blood enzymes deteriorate according the various environmental factors and that as they deteriorate, they become less detectable.

In terms of the... the implicit credibility findings, which respondent relies upon, the district court during its opinion demonstrated that it know... it knew how to make credibility findings.

In fact, it made two specific credibility findings in this case when it found Mr. House's testimony to be incredible and the testimony of Lora Muncey to be credible.

As far as the... the suggestion that, yes, there was... the crime scene was wet, that that... that there was water at... or there's a possibility of mud at the crime scene, not only is this contradicted by the absence of the mud... of mud on the victim's clothing, but also the drizzling which counsel described occurred on the day following the murder, not before it happened, not at the time the murder was occurring, but on the day following the murder.

So, in fact, there was... the murder scene was dry, just as petitioner has informed the Court.

As far as the daughter not hearing any sign of a struggle, the daughter's testimony was that she did not hear any sign of a struggle when she got up immediately after her mother left the home.

The testimony at the evidentiary hearing, unrebutted and unimpeached, was that at that point in time when she was hearing nothing, her mother was, in fact, at the C&C Recreation Center involved in a fight with Hubert Muncey, Jr. In fact, that testimony goes to Mr. House's innocence because at the time she hears nothing, she hears no sign of a struggle, is the very time that the State of Tennessee contended that Mr. House was out murdering Carolyn Muncey, and yet the daughter who was outside of the home within 50 yards of where this murder occurred heard absolutely nothing.

Justice Scalia asked was there, in fact, other evidence of... of rape.

Wasn't there, in fact, bruises found on her thighs?

On cross examination, the pathologist testified, admitted on cross examination, that the scratches on Ms. Muncey's thighs were more likely attributable to her being dragged through the brush and her body being hidden which, incidentally, is an act which Mr. Muncey confessed to doing.

In addition, as I stated before, the evidence has to be viewed in light of the entirety of the evidence of the record.

It isn't just the blood evidence.

It isn't just the semen evidence.

It isn't even just the confession.

It's also the fact that the same witness who puts Mr. Muncey... or who Mr. House even leaving the Donna Turner home on the night of the murder puts Mr. House leaving the home at a... thank you, Your Honor.

Chief Justice Roberts: Thank you, counsel.

The case is submitted.

Attribution:

The Oyez Project

Featured:

Rice v. Collins - Oral Argument

Fri, 09 Jan 2009 14:48:58 +0000

Case:

Rice v. Collins

Media File:

04-52_20051205-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of William W. Lockyer

Chief Justice Roberts: We'll hear argument next in Rice v. Collins.

General Lockyer.

Mr. Lockyer: Mr. Chief Justice, and may it please the Court:

This Court has repeatedly communicated an understanding of the appropriate deference owed to State court fact finding in habeas review under 28 U.S.C., section 2254.

Here, we don't have a simple case of the Ninth Circuit applying the proper standard of deference, but getting the wrong result.

The problem is the Ninth Circuit doesn't get the standard.

Although--

Justice Kennedy: Just at the... at the outset... and I'm... I'm not sure you're prepared for this, but the joint appendix, volume 2, is under seal.

Mr. Lockyer: --Yes.

Justice Kennedy: In the course of the argument, I think we'd be very interested in knowing about the colloquy that the trial judge had with the attorneys, and if it's under seal, it's a little bit awkward to do that.

Is there any reason that it has to be kept under seal?

Mr. Lockyer: None... none at all, Justice Kennedy.

I believe we provided the--

Justice Kennedy: I... I take it--

Mr. Lockyer: --appendix 2--

Justice Kennedy: --I take it that the... the names of the jurors we don't know because they're given numbers.

Mr. Lockyer: --That's correct.

Justice Kennedy: So far as you know, the counsel for the respondent would also have no objection?

Mr. Lockyer: Neither of us have any objection, and it's been quoted extensively--

Justice Kennedy: Yes, it was then quoted extensively in the Ninth Circuit I thought.

Mr. Lockyer: --In... in the briefs as well.

Justice Kennedy: Thank you.

Mr. Lockyer: Thank you, Mr. Kennedy... Justice Kennedy.

In this instance, the Ninth Circuit professes fealty to AEDPA deference, but it seems simply too easy, having sensed a constitutional injury, to become willing to attribute error to the State court and to substitute its own factual inferences for those of the trial judge.

The way the Court decides this case can provide further instruction to habeas courts to help them avoid the Ninth Circuit error.

I'd suggest at least four instructions that might be considered.

First, confirming that the objective reasonableness test, that inquiry under (d)(2), is like that currently under (d)(1).

That is, the factual inquiry, like that under the legal inquiry, more deferential than review for clear error.

Second, since it seems logical that State fact finding should be entitled to equal, if not greater, respect than that now accorded State court resolution of legal issues under (d)(1), we've argued for adoption of the Jackson v. Virginia kind of standard as consistent with the letter and spirit of AEDPA, meaning that witness credibility determinations rarely may be overturned, and that all of the evidence must be reviewed in the light most favorable to the fact finder.

Third, although Miller El v. Dretke represented an extraordinarily egregious and I personally think undeniable violation of Batson, some might react to a whiff of a little smoke as a Miller El fire.

Proper resolution of this case can make it clear that Miller El v. Dretke dealt with a outlier and that the traditional line of this Court's habeas cases, restricting Federal courts from second guessing a State judge's credibility calls, retain their vitality.

Finally and specifically responding to Mr. Collins' argument that this case, it seems, is an opportunity to confirm the well established presumption of correctness for State court fact finding under section 2254(e)(1), that it remains available in all habeas cases.

Collins' view that the traditional presumption now applies only in the rare case of Federal evidentiary hearings would eviscerate the traditional presumption.

In my office--

Chief Justice Roberts: Well, it is... it is a little unusual to have under your view two different sections, both addressed to the question of the appropriate standard of review in a particular type of proceeding.

They seem either redundant or overlapping.

The theory on the other side at least distinguishes them and argues that they apply in different circumstances.

Mr. Lockyer: --That's true, Mr. Chief Justice.

Our view is that the (e)(1) test really focuses on specific facts that have been found in State court.

The (d)(2) focus is on the decision, which presumably would be a bundle of multiple facts, the decision of the court and whether it was objectively unreasonable.

And to limit the (e)(1) presumption not only, I think, being contrary to congressional intention when AEDPA reforms were adopted, and your cases that have applied both (e)(1) and (d)(2) as separate, independent tests... in my office, there are 320 attorneys that do Federal habeas work, 120,000 hours of lawyering.

If you take out the capital cases, the non capital Federal habeas claims, only 2 or 3 percent ever go to a Federal evidentiary hearing.

So the result of reading that (e)(1) without the presumption in the cold record case means basically the State loses the presumption for almost every habeas claim that we look at.

So it would seem to not be also supported by the statute's clear terms.

There's no limitation written into (e)(1) that it... it's... doesn't apply across the board to all habeas claims.

The--

Chief Justice Roberts: What about the contention in the particular proceeding that the district court... or the State fact finder did not, in fact, make a determination, but simply gave the benefit of the doubt to the prosecutor?

Mr. Lockyer: --Mr. Chief Justice, I... I think that reading the transcript will show that the judge, hearing the Batson motion, asking counsel to explain the reasons for her strikes, allowing defense counsel to comment and explain, and then the ruling of the judge seems to be a general one, both contemplating both demeanor and youthfulness, and benefit of the doubt may refer back to the fact that there's a dispute about the challenged juror and whether she turned aside, rolled her eyes in a dismissive and disrespectful way.

And the judge says, well, I didn't see that behavior, but I'll give you the benefit of the doubt.

But I think the ruling is a general one that subsumes both claims, youthfulness and demeanor.

Justice Souter: Well, I thought youthfulness--

Justice Kennedy: And I... I noticed the defense attorney, respondent here, did not comment in any way on the... the demeanor of the... of witness 16, which means either the... he... he saw it and said nothing or he... he didn't see it at all.

We don't know.

Mr. Lockyer: Justice Kennedy, that's correct.

There was no comment.

Justice Kennedy: What... what is the obligation that we impose on the prosecution in this case to give a coherent explanation of why there... the juror was excused?

That step has proceeded.

We're at that step in Batson where an explanation has to be given.

What... what have we said about how coherent and complete that explanation has to be?

Mr. Lockyer: Well--

Justice Kennedy: Here, it seems that the prosecutor was somewhat caught off guard or... or certainly was not extremely clear.

Mr. Lockyer: --Well, we are in the middle of a... a trial, of course, and it happens quickly and, as the Court has suggested, often peremptory--

Justice Kennedy: Well, I'm not so sure quickly.

They gave notice that there'd be a Batson hearing.

She should have known what's going on.

Mr. Lockyer: --Yes, sir.

However, it was just a short time later in the day, Justice Kennedy.

There was a break to dismiss the jury and then come back to the Batson claim.

But the peremptories, as the Court has frequently said, are intuitive, often inarticulable.

In this case, I think the--

Justice Kennedy: But the point is once there's a Batson challenge, it has to be articulated.

Mr. Lockyer: --Well, I think that happens.

That is, as soon as the prosecutor is asked to defend her challenge, she does, and she talks about youthfulness.

She says the young person doesn't have ties in the community, doesn't have a stake in the community, is unmarried, perhaps has a greater tolerance for drug crime with a small amount.

This is a three strikes case.

It would be a natural worry, I think, for a district attorney to think that a third strike, even though one and two were armed robbery and rape... that a third strike that's possession of a small amount of drugs, you might need to worry about a juror's tolerance or worrying about that severity of sentence.

Justice Souter: --But... but isn't... isn't the difficulty with your analysis there, General, that, yes, she started out by... by talking about youthfulness.

As I understand it, she started talking about youthfulness and the... and the demeanor, the rolling of the eyes.

Mr. Lockyer: Yes.

Justice Souter: Sort of at the second stage, again she spoke of youthfulness.

Then at a third stage, she said, well, it's a combination of... of age, gender, and inexperience.

Then she realized she was in trouble, and she said, well, I really didn't mean gender because I... I'd be in constitutional hot water there.

Then she said, well, I really don't mean age because there are other young people on the jury, and I'm... I'm not challenging them.

So that the only thing that was left was possibly that element of age which refers to ties to the community.

And at the end of this long colloquy, in which she has gone back and forth and back and forth and... and jettisoned some of her reasons, the trial judge says, well, I didn't see the eye rolling, and I guess I'll give the benefit of the doubt to counsel.

I don't know whether the judge is talking about the benefit of the doubt on eye rolling or the benefit of the doubt on... on ties to the community.

Assuming it's ties to the community, that has nothing to do, I suppose, with... with the... the fear that a young person is going to be too sympathetic to a defendant who's up for the third time with a small amount of drugs.

And at the end of the day, it seems to me we have what Justice Kennedy's question in the first place suggested.

We simply have an incoherent colloquy and a response to the judge which simply does not tell you what the judge is ruling on or the basis for the ruling.

All we know is that ultimately he's saying I'm rejecting the Batson challenge.

That's the problem with... with deference in this case.

What... what is your response to that?

Mr. Lockyer: Well, thank you, Justice Souter.

First, I'd point to the language that the judge provided, which was in regard to juror 16, the only one that is at issue, the court did not observe the demeanor.

However, 16 was a youthful person, as was 6, and then prepared to give the district attorney the benefit of the doubt.

Justice Souter: Yes, but the district attorney has... I mean, the... the point here is we're judging the district attorney's responses, not the judge's responses.

Mr. Lockyer: Right.

Justice Souter: What we want to know is what the judge found and ruled upon.

The district attorney, as I understand it, has withdrawn the general claim that youthfulness is a problem, and the only claim that might have been... might... probably was comprehended under youth that... that remains is the claim of no community ties.

And I find it very difficult to tell from the judge's ruling whether the judge is saying, yes, I think there's a fair showing that there are no community ties and that's certainly a race neutral reason.

I don't know what the judge was... was--

Mr. Lockyer: If I may, Justice Souter.

The DA never withdrew the youthful claim.

Justice Souter: --Well, didn't the DA say, look, youth alone doesn't... doesn't explain my reasons because there are other young people on the jury that... that we're not challenging, and... and I don't want to suggest that all young people should be disqualified?

Mr. Lockyer: Right.

Justice Scalia: General, does... does the judge have to find what the reason for the strike was, or does the judge have to find what the reason for the strike wasn't?

Mr. Lockyer: The judge has to find that it was not a racially discriminatory strike.

Justice Scalia: And if there are several allegations and... and each of them is somewhat doubtful but, on balance, he says, I give the benefit of the... of the doubt to the... to the district attorney, it's his indication that, as a matter of fact, he finds that the reason wasn't race.

Mr. Lockyer: Justice Scalia, your direct--

Justice Stevens: May I ask this question, General?

Mr. Lockyer: --Yes.

Justice Stevens: There are really two kinds of Batson problems as I see it.

There are some cases where the prosecutor is... just is deliberately keeping African Americans off the jury, and there... there's no question there's a violation there.

But I'm wondering if there isn't another category where persons are unconscious of their own subconscious bias and not realizing that they themselves have an unconscious fear that perhaps an African American might not be a sympathetic juror.

Would that kind of failure to really identify the problem within the prosecutor's own conception of the case... would that be a Batson violation in your view?

Mr. Lockyer: Well, probably not, because the requirement is that the strike be intentionally done.

That is, there's an intentionality.

If it's unconscious, as you suggest, Justice Stevens, I... I would think that wouldn't qualify.

Justice Stevens: If, for example, the judge saw that over a period of time, a particular prosecutor had hunches about jurors over and over again and they just happened to be black most of the time.

That would not justify a... a Batson challenge.

Mr. Lockyer: Well, there might be a pattern over time.

Justice Stevens: But... but she's totally convinced of the good faith of the prosecutor.

And I'm not suggesting bad faith.

Mr. Lockyer: Yes.

Justice Stevens: But just realizes this person has an unconscious bias that shows up in the... in the pattern of challenges.

Would that be a justified challenge?

Mr. Lockyer: You might be able to deduce intent from... infer it from a variety of challenges.

Justice Scalia: No.

You have to accept his hypothetical as he gave it.

Assuming that the attorney, the district attorney, was in good faith.

Justice Stevens: Right.

Mr. Lockyer: In good faith?

Justice Scalia: Yes.

Assuming that the... the attorney did not think that he or she was striking the juror because of the juror's race.

Mr. Lockyer: Justice Stevens and Scalia, I would rely on the trial judge to make a determination of the intention of the district attorney--

Justice Stevens: And if the trial judge determined--

Justice Kennedy: Well, the question is would he--

Justice Stevens: --based... based on the history of several trials and so forth, that this prosecutor unconsciously had this hunch with respect to black jurors but not others, that would be a sufficient basis for a challenge.

Mr. Lockyer: --I'd be inclined to say yes.

Justice Ginsburg: But there is no such... that... that's very far from this case, General Lockyer.

Mr. Lockyer: Yes.

Justice Ginsburg: I did... I did have one--

Justice Scalia: That... that gives a lot of power to district... to... to the district judge, doesn't it?

I mean, you know, this... he says this... this U.S. attorney really doesn't honestly believe that he's biased, but I think, being the great psychologist that I am, that this United States attorney, or whoever, is... is really biased and... and he's... I... you really--

Mr. Lockyer: Justice Scalia--

Justice Scalia: --you really want the system to run that way?

Mr. Lockyer: --Well, Justice Scalia, I hope to brief that one some day, but--

Justice Ginsburg: --Can we... can we go back--

Mr. Lockyer: --but... but it's a good... it's a good question even though I... I don't think it's what's happening in this instance.

And I mostly would say we rely on the trial judge who's there--

Justice Stevens: Except in this very case, one gets the impression that the prosecutor was pretty confused, but maybe she was acting in good faith.

Mr. Lockyer: --I... I believe that's clear from the record.

Justice Ginsburg: --She was certainly... she was certainly wrong on the law.

When she... when the gender question came up, she said, well, it's not a suspect category, and she seemed to be... her notion was that it was okay to aim for a jury that had an equal number of men and women.

And it was... she seemed to be thinking the same thing with regard to age too.

I agree with you she didn't withdraw it, but was... the reasonable explanation was we don't want too many young people here.

So I'm going to allow some, but I want older people to dominate.

But the gender... she had to be told by the judge Batson applies to gender.

That... that seemed... that seemed strange to me that... that 2 years after, she would not know.

Mr. Lockyer: Justice Ginsburg, I think that perhaps an explanation... and, again, if the trial judge thought it was reasonable... is there some compelling reason to read it a different way years later on appeal after the California Court of Appeal, a Federal magistrate, and a Federal district judge have agreed with the trial judge's perspectives.

But it could be that she is quoting, as you'll see in the transcript, California law that had talked about jury balances.

It's good to have young and old.

It's good to have different races.

I agree.

You're absolutely right.

J.E.B. v. Alabama had occurred a couple of years before, and the judge does say, I don't see, Ms. Satriano, that you are seeking to justify excusing people of one ethnicity based on gender.

So he seemed to at least be saying, you started with youth.

Everything you said about youth, ties in the community, tolerance for drug use, unmarried, which might be distinctions with other young people... those... do you have anything else to say?

And I... I suspect she felt like compelled to come up with some further explanation.

Justice Breyer: What... what is the... where... where is the place in what the judge... when did this eye rolling take place?

I can't figure it out.

Mr. Lockyer: Okay.

Yes.

During the judicial voir dire.

Justice Breyer: Yes, I have that in front of me.

Mr. Lockyer: And--

Justice Breyer: What was the statement that the judge made in respect to which the juror is supposed to have rolled her eyes?

Mr. Lockyer: --The district attorney simply says with one of the questions to which you... the prospective--

Justice Breyer: Which question?

Mr. Lockyer: --It's unclear.

Justice Breyer: So the reason I can't find it out is none of us know.

Mr. Lockyer: No, you're right.

I mean, it's one where... it doesn't say in the record eye rolling.

Justice Breyer: And it actually says it wasn't a question.

It was a statement, and that's why I can't figure it out.

Mr. Lockyer: It... it seems to be where the juror said yes in response to the voir dire, and then--

Justice Breyer: Which was a question you said--

Mr. Lockyer: --turned aside.

All we know is yes was said.

We don't know what the question was.

Justice Breyer: --I see.

Mr. Lockyer: The... a point I guess to be made about this confusing transcript... and of course, I don't know what the file looked like with respect to Miller El, but this is it.

Obviously, there's not a lot to go on, and I think it suggests how vital it is to rely on the trial court judge to make some credibility determination.

He's there and sees the district attorney and tries to, after making appropriate inquiries, say that he accepts her non racial reason.

Counsel for respondent does a lot to compare to Miller El and so perhaps it's worth just distinguishing briefly.

There we have 10 of 11 African American jurors struck.

We have the lawyers doing the questioning, trick questions, loaded questions, complicated questions.

We have the external evidence of the Dallas manual recommending discriminatory strikes.

We have the cards with race written on them.

Here, we have a very brief, quick proceeding.

The judge is asking the questions and really resisting lawyers' attempts to add to that, to get more information so you can make a valid assessment of the juror that's before you.

And so in this instance, obviously, relying on intuition, trial experience, she exercises the two peremptory challenges, one of which was withdrawn on appeal and not pursued, the other with respect to the young person, the demeanor, and youthfulness are the grounds given.

Justice Stevens: May I ask just a... kind of a background question?

I noticed the judge pointed out after ruling that he was under... he... I can't remember if it was a he or a she, but was under an obligation to report its reasons for granting a Wheeler motion to the State bar.

Mr. Lockyer: Yes.

Justice Stevens: Does that... does that requirement apply after the Ninth Circuit decision?

Is there a requirement that the... the lawyer be investigated for possible discipline?

Mr. Lockyer: We tried to research it, Justice Stevens, and we believe that it was a... a State court rule adopted subsequent to Wheeler.

And that... of course, unlike the way in which it is characterized in respondent's brief, it wasn't a warning to her, the district attorney, that is.

It was a general statement.

If there's a Batson claim, I'm obligated to report.

Justice Kennedy: --Well, I... I read it as saying, and therefore I'm going to be careful about finding that there's been a Batson violation.

And I wonder if that's consistent with what we want trial judges to do when they're hearing Batson challenges.

Chief Justice Roberts: Justice Kennedy, I frankly didn't read it that way.

It just seemed to be he was stating the fact, that it would be an obligation to report.

Clearly, it has some impact on how people feel about the judicial system and the particular lawyer's reputation if the judge were to affirm the motion.

But I... I would expect the judge was doing his job and performing his duties correctly.

Justice Breyer: If you have a minute, you might... I don't know if you... if this is very useful.

But I've taken this point of view that... that there's no way to get to the bottom of the use of stereotypes in cases like this, a perfect example.

And therefore, the only thing to do, consistent with the Constitution, is no peremptories.

Mr. Lockyer: Well, I know that's your view, Justice Breyer.

Justice Breyer: You have 30 seconds.

Do you want to say how irresponsible that is--

Mr. Lockyer: I prefer to keep the tradition and allow the peremptory challenges.

Thank you.

I'll reserve time, if I may.

Argument of Mark R. Drozdowski

Chief Justice Roberts: Thank you, General.

Mr. Drozdowski, we'll hear now from you.

Mr. Drozdowski: Mr. Chief Justice, and may it please the Court:

The Ninth Circuit properly held that the State appellate court decision represented an unreasonable determination of facts because the prosecutor did not give a single persuasive reason for striking juror 16.

The circuit also rightly held that the--

Chief Justice Roberts: Why isn't the rolling of the eyes a persuasive reason?

Mr. Drozdowski: --Well, here the rolling of the eyes, first, is uncorroborated by the trial judge.

He says, quite frankly, I did not see it.

And in his ruling, he does not credit that rationale.

Justice Kennedy: Well, what... what should happen if the trial judge doesn't see it and a counsel, who's observant, said, judge, I've got a problem with this juror?

I don't know that the trial judge has to... has to see it, if he believes the counsel.

Mr. Drozdowski: That could be, but here the trial court's--

Justice Kennedy: We've... we've all been... been in court and... and noticed that sometimes witnesses or jurors or parties or even attorneys will make faces and so forth that's not consistent with... with proper demeanor in a courtroom.

Mr. Drozdowski: --That's correct.

But what's significant here is that this was a judge conducted voir dire where juror 16 would have been facing the judge when giving her answer.

So the judge would have been in the best position to see the--

Chief Justice Roberts: So you're--

Justice Kennedy: Maybe the judge is reading.

A judge doesn't watch... watch the witness 100 percent of the time.

That's not credible.

Mr. Drozdowski: --As the Court has previously mentioned, what we also have here is there's no... there's no corroboration in the transcript that juror--

Justice Breyer: So what is the point.

The judge says, I'll give the prosecution the benefit of the doubt.

Well, he... he knows the prosecutor and he believes the prosecutor.

I didn't see it, but I'll give him the benefit of the doubt.

He told me that's what she did.

What's... I mean, I really don't see why that isn't, given the present law, sufficient.

Mr. Drozdowski: --Well, here, the trial court's ruling... he says, I did not see the demeanor complained of.

However, juror 16 is youthful, as are other jurors.

I'm prepared to give the district attorney the benefit of the doubt.

So I think the ruling here, if there is, indeed, a finding of no discrimination, would be limited to the youth rationale clearly by--

Justice Ginsburg: Why?

Justice Breyer: You mean benefit of the doubt just refers to youth.

I... I read that as referring to the whole story.

Mr. Drozdowski: --Well--

Justice Breyer: I mean, I... it's pretty hard to read that as saying, I'll give him the benefit of the doubt in respect to the youth.

It sounds as if I'll give him the benefit of the doubt in respect to the reasons he gave for challenging her.

There are two other African American jurors on the jury.

She is useful... youthful.

He... she saw him... he saw her rolling her eyes when... what do you think about the drugs or some other relevant question.

And he says, I'll give him the benefit of the doubt.

I mean, I don't see how to read that in a way that... that comes out the way you want it to come out.

Mr. Drozdowski: --Well... well, even--

Justice Breyer: So tell me.

Mr. Drozdowski: --Okay.

Even if the Court concludes that the trial judge did credit the demeanor rationale, it's still a wholly unpersuasive reason to give in light of everything else the prosecutor did here.

The demeanor rationale wasn't the sole reason given.

It comes as part of a litany of reasons that are all either unconstitutional, the gender rationale, or contradictory or unsupported by the record.

And there was some discussion earlier about this.

Miller El makes clear that the district attorney must give the real reason for the strike, not just any rational basis the prosecutor can think up.

And when we look at the transcript of the Batson hearing here, we see a prosecutor scrambling to think of anything she--

Chief Justice Roberts: --Well, isn't this just another way of saying you don't believe the proffered justification?

In other words, the... the trial judge made a credibility determination that that was the reason, the person rolled her eyes, and you're saying, in light of the other explanations, you think the prosecutor is just making that up.

Mr. Drozdowski: --I... I think two things.

I think, one, the reasonable conclusion is the prosecutor is making it up, but even if the Court... the Court doesn't need to accept that to still come to the conclusion and say the demeanor rationale is still not the reason for the strike.

She can't say the reason here.

She comes up with six different reasons, but they're all either--

Chief Justice Roberts: So you're saying you don't believe it.

You think there's a different reason, and the rolling the eyes is not the real reason.

And we have a factual determination that the judge believes that that's the reason or a reason.

And under the... the statute, at least that... that's... that either has to be shown to be unreasonable or, under the State's reason, that's presumed to be correct, and you have to show it by clear and convincing evidence.

Mr. Drozdowski: --And the Ninth Circuit properly found that the conclusion was both unreasonable and rebutted by clear and convincing evidence, and it's because none of these reasons, when we look at the totality... what I'm trying to say is--

Justice Ginsburg: What was the... on the... on the eye roll, which I thought also the... the prosecutor said that she turned her head.

So it may be that she was out of the vision of the... the judge even if he had been looking.

I don't see that you have any evidence to rebut it.

You said, well, it was rebutted by clear and convincing evidence.

There was no evidence.

There was no evidentiary hearing.

Mr. Drozdowski: --Well, we cited a case on page 24 in our brief, a Third Circuit case, Riley, that says a reviewing court's suspicion may be raised by a series of very weak explanations given for the strike.

Justice Scalia: There... there's no doubt that the court... or at least in my mind, that... that the trial court could have come out the other way.

I... I... you know, all of the things you say are quite true.

The question is whether the trial court had to come out the other way, whether it was just utterly unreasonable for the trial court to come out the way it did.

And that... you know, that's a... that's a heavy burden.

And... and it is a messy transcript and all of that, but I... I find it difficult to see how... how you can establish that... not only that... that the trial court could have come out the other way or, indeed, maybe in your judgment, maybe in my judgment, should have come out the other way.

But you have to establish that it's unreasonable not to come out the other way.

And... and I find it hard to... to see how you can do that when you have a transcript that relies, in part, upon the... you know, the rolling of the eyes and the... and the trial court says, I'm... I'm willing to give her the benefit of the doubt that that's the reason she did it.

Mr. Drozdowski: Well, Miller El emphasizes that we need to view the prosecutor's behavior cumulatively.

And again, when we look at here the... the prosecutor coming out with one reason after another to try to justify her strikes, consecutive strikes, of the only two black women on this jury, there's just simply no credibility left to give to the demeanor rationale even if one views that it's--

Justice Ginsburg: I thought there was another... another.

Wasn't there another minority woman on the... in the jury panel?

Mr. Drozdowski: --Juror 20 Collins explains... Mr.... trial counsel... defense counsel, explained at the hearing was a person of color but not African American.

So the record shows, I believe, we have one African American on the jury and one other minority.

Justice Kennedy: Now... now, number 19 was excused and was a black person.

Mr. Drozdowski: That's correct.

Justice Kennedy: And... and a woman.

And if that too had been suspicious and challenged, then you might have had a pattern, a pattern of two people, which could have overcome the demeanor testimony... demeanor claim.

But I... I think on this record that we have to assume that there is nothing wrongful about excusing juror 19 merely because respondent's counsel here... you did not pursue that.

I... I read the record as... as telling us that so far as juror 19 is concerned, there was an adequate reason for excusing that juror.

At least respondent's counsel... you have not said that there wasn't.

Mr. Drozdowski: Well, on the State appeal, it's true that Collins' attorney dropped the claim specifically as to juror 19.

But the reason the prosecutor's strike of juror 19 is relevant is at step three of Batson, this Court has emphasized that the duty of the trial judge to determine purposeful discrimination requires an examination of all the relevant circumstances.

Justice Breyer: So what is the remedy... the remedy if we say and hold with you that prosecutors can't give reasons like they gave here?

How is a... what's a prosecutor supposed to do?

I mean, the prosecutor might be moved by stereotype.

Young African American woman... of course, she tolerates drugs.

Well, not quite of course.

Well... well... well, she rolled her eyes.

Well, at least she looked in this direction.

Well, I sort of... maybe I'm seeing eye rolling here.

I mean, we all understand that.

But that's why I guess I am where I am.

I... I don't see what the... I don't see what we're telling prosecutors if we hold in your favor, and I don't see how we deal with the problem if we hold against you.

Mr. Drozdowski: Well, I... I think... I think the record here reinforces Your Honor's view on--

Justice Breyer: But I'm asking for your experience.

You have a lot of experience as a defense lawyer.

How is this thing supposed to work?

Mr. Drozdowski: --Well, I... I think if... if the Court allows to happen what... what happened here, then I think the message it could be saying to prosecutors, as long as you can just rifle off a series of... of reasons for your strike and then the trial court latches onto one of them, taking it out the context of the plausibility of all the other strikes, then we're going to allow this type of behavior to continue.

Justice Scalia: This prosecutor presumably appears before this judge on other occasions, and... and don't you think we... we can give some weight to the fact that the judge is there, sees the woman, sees what she's saying, and... and can judge better than we can whether she's making this up or just... just is... is somewhat confused, especially since, as... as I think the General pointed out, we're dealing with a kind of determination that is usually instinctive on the part of trial counsel.

There's just something about this, you know, and you move to strike.

I'm not sure it springs into your mind, at the time you... you move to strike, the precise reason.

Then somebody asks you later, why was it?

Why was it?

There was just something about that person I didn't like.

I know it wasn't the race.

That had nothing to do with it.

Now, what was it?

And then... then you have to recreate a... a rational process that, in fact, never occurred.

It was an instinctive process more than a rational one.

So I'm... I'm not particularly upset by... by seeing counsel flounder about in... in trying to come up with what the right reason was.

I think it's probably pretty hard to figure out.

Mr. Drozdowski: First of all, there's nothing in the record to indicate that this prosecutor had appeared many times before this trial judge.

Another point is--

Justice Ginsburg: Well, she might in the future, if she's got a job as a prosecutor in this court.

So she's certainly going to be concerned with her reputation, her integrity before the court.

Mr. Drozdowski: --That's right, but I guess what I'm trying to say is it's not that the judge said, you know, Ms. Prosecutor, you've appeared before me many times and I'm willing to give you the benefit of the doubt because I know the way you are.

We have nothing like that here.

Also, as far as it being instinctive, Batson and Miller El require the prosecutor to give the reasons and stand and fall on the plausibility of those reasons.

And... and here--

Justice Scalia: I'm saying that it's hard.

That's all.

And... and that you can understand why somebody would flop around because, at the time the strike is made, I'm... I'm not sure it's always an entirely rational rather than instinctive action.

Mr. Drozdowski: --I understand, but what's significant here is when she is flopping around, the reason she comes up with... she says gender.

It's patently unconstitutional and discriminatory.

We have youth, and then she says, well, it's not that they're younger.

Other young people on the jury.

It's not that I don't want young people.

And she doesn't strike juror 15.

Justice Souter: All right.

Let me... let me ask you as a... as a response to... to the kind of the incoherent flopping around argument, let me ask you what your position would be if the record were different in the following respect.

Let's assume the record is just what it is up until that final paragraph or so in which the judge rules.

And instead of doing what he did in this case, the judge says the following two things.

He says, number one, I didn't see the eye rolling, but I accept counsel's representation of fact that the eye rolling went on and I certainly understand the... the significance of that.

So I'm going to take that as a fact.

Number two, even though counsel has withdrawn the... the sort of the general claim of youth and so on, I understand counsel still to be saying this is a person without any manifest ties to the community and... and that suggests a certain looseness of responsibility.

And based upon the eye rolling and based upon the lack of ties to the community, I think counsel had a race neutral basis for the... for the strike that was made, and for that reason, I'm going to overrule the Batson challenge with respect to number 16.

What would your position be?

Mr. Drozdowski: Well, that... that would be a... a tougher case for us because we would have an explicit ruling--

Justice Souter: Right.

Mr. Drozdowski: --of what actually happened.

Justice Souter: What would your position be?

Mr. Drozdowski: I still think that in this case, given the entire context and all the other reasons given, including the gender reason, that it would still... that those demeanor and youth reasons would still not be persuasive looking at the context--

Justice Souter: So you would say that those two conclusions on the part of the court were unreasonable?

Mr. Drozdowski: --On... on this record, yes, given all the other reasons we have given by the prosecutor.

Chief Justice Roberts: And you would say you've established that by clear and convincing evidence?

Mr. Drozdowski: I would because when we go through the comparative juror analysis and look at the record of the whole, we see that the reasons given, for example, on youth are not used for similarly situated white jurors.

Justice Kennedy: Well, but number 6 was a young white... young white male, I believe, and he was excused on the ground of youth.

So it's consistent.

Mr. Drozdowski: 6 was different in that he was unemployed, in fact, had never been employed, and also he had an uncle who was a recovered alcoholic, and that made him quite different from juror 16.

Justice Ginsburg: What's wrong with the explanation, as far as youth is concerned, is that she didn't want to across the board strike young people, but she just wanted to come up with a jury that had dominantly older people.

So that wouldn't mean that she's withdrawing youth.

It's just that she's saying it isn't an absolute with me.

Mr. Drozdowski: Well, I think she's also admitting that youth wasn't a reason because she's saying there are other young people on the jury, and the significant question here--

Justice Ginsburg: Well, what's... one... one point could be I don't want too many young people, so I'm going to exercise some peremptories to make sure that the jury is dominantly older people.

What's wrong with that?

Mr. Drozdowski: --What's wrong with that here is the question is why is she using that rationale against the young black juror and not the... the young white jurors on the panel?

How come she's seeking to achieve the balance by striking juror 16?

Justice Ginsburg: Well, she did.

Number 6 was white.

Right?

Mr. Drozdowski: Correct.

Justice Ginsburg: And youth was a factor there.

There may have been other factors, but youth was certainly a factor in that case.

Justice Souter: And this one rolled her eyes.

Mr. Drozdowski: Right, but when we look at the totality of the reasons, which include looking at the way she treated juror 19, we have the lack of ties in the community--

Chief Justice Roberts: Juror 19... you just said earlier the fact that the one juror's uncle had an alcohol problem was... was a legitimate factor.

Juror 19's daughter had a... a cocaine problem and this was a cocaine case.

Isn't that a perfectly legitimate reason for exercising a peremptory with respect to a juror?

Mr. Drozdowski: --The significance of the treatment of juror 19 is, right out of the box, the prosecutor is coming up with reasons that she says apply to both 16 and 19, the only two black women on the jury.

And these are very disparate women, and they're different in age and occupation status, the number of children they have, and people they... who are close to them who have substance abuse problems.

And right out of the box, the prosecutor is saying that both of them are disqualified from jury service because they're both young, when juror 19, in fact, was a retired grandmother.

Justice Ginsburg: But that... that was so obviously a slip, and Judge Hall pointed that out in her dissent.

Defense counsel too confused... was confused on the numbers.

Obviously, it... the... the prosecutor wasn't trying to say a grandmother is going to be excused... is going to be struck because she's young.

Mr. Drozdowski: I respectfully disagree that it was a mistake.

Her answer... her response that juror 16 and 19 are both young came immediately in response to the court's request that the prosecutor justify her peremptory strikes of judge 16... juror 16 and 19.

And then later on, when the judge said that gender was not going to cut it, the prosecutor said, well, it's not really gender.

She back tracked to youth, and she said what is important, their youth is important.

And she could only have been referring to 16 and 19 at that point because there was no claim that juror 6 was being excluded because of his gender.

Justice Kennedy: Would you say the same thing about the defense counsel confusing jurors 16 and 19 at page 9, the bottom of page 9?

It seems to me Ms.... Ms. Nachman is confusing juror 19 with 16.

They're talking about 16 and 6, and then Ms. Nachman ends by talking about juror 19.

That seems to me clearly to mean number 16.

Mr. Drozdowski: Well, I'm... I... I don't think so because on the next page she continues discussing juror 19 at the top of page 10.

Justice Kennedy: Well, I... I don't think it's a necessary reading.

Chief Justice Roberts: Maybe I'm... what... what is the inference you try to draw from the treatment of juror 19?

That the prosecutor wants to... was striking people on the basis of their race or that she had better reasons for 19 than 16?

Mr. Drozdowski: No, no.

The conclusion is that she was striking jurors on the basis of the race, that she is using--

Chief Justice Roberts: And then what do you do with the fact that juror 19's daughter had a cocaine problem and this was a cocaine case?

That doesn't seem to be... that's not a race based reason.

That's seems to me to be a good reason.

Mr. Drozdowski: --Right.

We're not challenging the strike of 19 per se.

What we're saying is that the prosecutor's reasons she gave for 19 are important in trying to determine whether she is intentionally discriminating in striking juror 16.

And the fact that she is lumping the two jurors together, not treating them as individuals, but treating them, in fact, stereotypically by saying that all... that three of these reasons apply to both of them, when the record clearly shows that they don't apply to juror 19, it shows... it shows the discriminatory behavior.

The... the Attorney General said that this case is unlike Miller El, but I'd just like to emphasize certainly here we have a petitioner who was representing himself pro se and he did not present extra record evidence of a... of a history of discrimination.

But the case specific evidence is similar to Miller El in important respects, and Miller El requires relief in this case.

First... first of all, three of the reasons given here for the strikes pertain just as well to non black jurors as to the black jurors, and that's youth, tolerance, and single.

Here, as in Miller El, we have the district attorney scrambling from rationale to rationale and, when called on, one of the reasons shifting to another.

And here, the district attorney did not ask questions on grounds later used to justify the strike.

Now, clearly here, it's a judge conducted voir dire, but the attorneys were allowed to ask the judge to ask different questions... to ask that the judge ask additional questions.

And here, at the conclusion of the voir dire of jurors 1 through 17, the... the prosecutor asked the judge to ask four additional questions.

Three of them were to the panel generally and one specifically about juror 8.

But the prosecutor never asked that any additional questions be asked of juror 16 before she struck her.

If I could turn briefly to the State's Jackson v. Virginia argument, unless there's any additional questions on the Batson claim.

The State's claim that (d)(2) and (e)(1) incorporate the Jackson sufficiency of the evidence test is contrary to the plain terms of (d)(2) and (e)(1) and this Court's cases construing those provisions.

And the State still hasn't cited a single case prescribing a Jackson type of review, and courts have been construing AEDPA for over 9 years now.

That should be the end of the line for the State's argument.

Chief Justice Roberts: What do you do with the argument that your reading of the two sections means that (e)(1) would only apply in a very small number of cases, and it's obvious that Congress was trying to tighten the habeas review procedures?

Mr. Drozdowski: Our argument is based on the... the structure and text of statute and... and the fact that the clear and convincing requirement is tied to the presumption of correctness.

I'd like to emphasize that the Ninth Circuit in this case did apply both (d)(2) and (e)(1), as this Court did in Miller El, and found that Collins has satisfied both standards.

So I just want to emphasize for the Court, even if it does not agree with us on our construction of (e)(1), that relief is still appropriate in this case.

Justice Kennedy: In... in a sense, the standards perhaps ought to be reversed.

When you hear the evidence, which is what you do under (e)(1), that is when you've determined... should determine whether it's unreasonable.

You should presume that it's correct before you decide whether you're going to hear.

So you could argue that they should be--

Mr. Drozdowski: Right.

I... I think our argument is based on the fact that we have the presumption of correctness as part of (e), which is the fact development procedure in Federal court.

The State's Jackson argument, I'd just like to highlight, is irreconcilable with what this Court said in Miller El I, and what it did in Miller El II.

In Miller El I, this Court stated that Federal courts can disagree with State court credibility determinations and, when guided by AEDPA, determine that the conclusion is unreasonable or its factual premise rebutted by clear and convincing evidence.

In Miller El II, this Court disagreed with the State court credibility determination and granted habeas relief even though the significance of some of the habeas petitioner's evidence was open to judgment calls.

By contrast, this Court stated in Schlup v. Delo, that the assessment of credibility is generally beyond the scope of review in Jackson.

And in the Crenshaw case cited by the State, the Court explained that under Jackson, the test for rejecting evidence as incredible is extraordinarily stringent and is met, for example, only when the testimony given is describing facts that are physically impossible.

This Court couldn't have granted relief in Miller El if it construed (d)(2) or (e)(1) as containing the Jackson test, and the State's approach would effectively bar habeas relief whenever a habeas petitioner challenged a credibility determination.

Justice Scalia: Do you think that (d)(2) or (e)(1) is the... is the stricter requirement?

I'm really not sure which of the two.

Don't you think it... it might be possible to show, by clear and convincing evidence, that the State court decision was... factual decision was wrong, but you, nonetheless, do not show that it was unreasonable?

In other words, it may well be that (d)(2) is... is the more severe one.

Mr. Drozdowski: I... I think they're different standards.

(e)(1) is a... a standard of proof, and (d)(2) is a standard of assessing a prior court's assessment of the facts.

Justice Kennedy: --If... if I might ask.

You have no objection to our unsealing the joint appendix, volume 2.

Mr. Drozdowski: No, we don't.

Justice Kennedy: Thank you.

Mr. Drozdowski: If I could briefly sum up.

In Powers v. Ohio, this Court said that the Fourteenth Amendment mandate, that racial discrimination be eliminated from all acts and proceedings of the State, is most compelling in the judicial system.

Here, the district attorney struck two of three African American jurors, including both black women, where a black defendant was facing a sentence of 25 years to life in a three strikes case for possessing.1 grams of cocaine.

One of the reasons given by the district attorney is patently unconstitutional: gender.

And all the other reasons are either contradicted or unsupported by the record.

Justice Stevens: Do you, by any means... you don't contend, though, the fact that she did rely, in part, on an unconstitutional reason is a sufficient reason for sustaining a Batson type challenge?

Mr. Drozdowski: In this case, it's very significant that she relied on the unconstitutional reason.

Justice Stevens: But you have not argued that that would be a sufficient reason for setting aside the verdict.

Mr. Drozdowski: This claim was not raised in State court as a gender challenge as opposed to race, if I'm answering the Court's question.

Justice Stevens: Do you think it would have had merit if you had made that argument?

Mr. Drozdowski: Absolutely, and I think it has merit here because it's... it's a reason the district attorney admitted that was motivating her strike.

It's... it's patently unconstitutional and it taints every other reason she gave.

Justice Thomas: Counsel, is there anything in the record to alert us to the race of the prosecutor?

Mr. Drozdowski: There is not besides her name.

Justice Thomas: Would it make any difference?

There seemed to be some suggestion that there are stereotypes at play in these Batson cases.

Mr. Drozdowski: No.

Equal protection mandates relief in this case, and AEDPA does not prevent it.

I respectfully request that the Court affirm the judgment of the Ninth Circuit.

Thank you.

Rebuttal of William W. Lockyer

Chief Justice Roberts: Thank you, counsel.

General Lockyer, you have 4 minutes remaining.

Mr. Lockyer: Thank you, Mr. Chief Justice.

First, with respect to juror 19, I think it's the best clear way to see what the Ninth Circuit did and what Collins continues to do, which is to substitute their reading, their inferences, and then conclude that anyone that disagrees is unreasonable.

Juror 19... if you read page 5, it's clearly a slip of the tongue where she accidentally is comparing the two young people, 6, and says 19.

Immediately afterward, she says 6.

And the defense counsel says, well, who is 6?

She says, it's the other young person, the young white person that I struck.

That slip of the tongue is the heart of the Ninth Circuit effort and analysis to do, as the dissenters said in the en banc denial, nitpick the record to find some circumstantial evidence to support your view of inferences and conclusions about reasonableness.

I think that partly makes the case and especially with a statute where deference is so owed.

The gender claim is ambiguous, but it was not a challenge based solely on race and the circuits are split on the mixed motive question, as Justice Stevens indicated.

Second, Third, Fourth, Eighth, and Eleventh, and in one opinion in the Ninth, they've addressed mixed motives generally saying your clearly established Federal law says that it has to be solely based on race.

That's the current test in the standard.

We raised Jackson and... Jackson v. Virginia just because of the Lockyer v. Andrade case in which the Court indicates that clear error, when we talk about objective reasonableness in understanding (d)(2) and (d)(1) in the case of Andrade, that it's more than clear error.

So we're trying to figure out, well, what's more than clear error.

We don't know what it might be other than seeing the evidence in the light most favorable to the trier of fact.

And finally, with respect to youth, clearly it's reasonable for a judge to look at the demeanor of the DA who's saying again and again and again it's a young person, unmarried, no ties in the community.

One of the things we didn't talk about is the DA who's from Los Angeles knows that that juror lives in Inglewood.

Now, there are different kind of neighborhoods in Inglewood, but a lot of them are neighborhoods with lots of drug dealing, and he might think or she might think, in this instance, it shows naivete to answer the question that there's never drug dealing in my neighborhood.

Well, for all those concerns, they're not implausible, they're not fantastic, as you know from the decisions that the reasons can be superstitious.

They can be silly.

Justice Stevens: Of course, you're coming up with still more reasons than the prosecutor came up with.

Mr. Lockyer: Well, they're just the ones in the record, Your Honor.

So I wanted to make sure the Court was aware of them.

But that's basically our contention, that deference was owed and the Ninth Circuit didn't respect that deference to trial judge that we rely on for credibility determinations.

If there are no questions, thank you very much.

Chief Justice Roberts: Thank you, counsel.

The case is submitted.

Attribution:

The Oyez Project

Featured:

Evans v. Chavis - Oral Argument

Fri, 09 Jan 2009 14:48:59 +0000

Case:

Evans v. Chavis

Media File:

04-721_20051109-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Catherine Baker Chatman

Chief Justice Roberts: We'll hear argument next in Evans versus Chavis.

Ms. Chatman.

Mr. Chatman: Mr. Chief Justice, and may it please the Court--

The Ninth Circuit decision in the court below was wrong, for three reasons.

It adopted a rule that frustrates Congress's intent to protect Federal Courts from hearing stale claims and to respect the finality of State Court convictions.

It does so by improperly and arbitrarily adopting a conclusive presumption that misunderstands or ignores State law and practice.

And it is inconsistent with this Court's decision in Carey versus Saffold.

If the Federal Courts, on the other hand, complete their analysis of the Federal question of tolling the AEDPA statute of limitations by deciding whether a State petition was timely before granting tolling, it can properly dismiss more Federal petitions on statute of limitations grounds and can avoid litigating stale claims on the merits.

Any difficulties in doing so can be ameliorated by the limited nature of the State law inquiry and adoption of a 60-day presumption of timeliness.

Justice Ginsburg: But that's something... where would we... we would just pick that number, that--

Mr. Chatman: The 60 days?

Justice Ginsburg: --Yes.

Because that's a normal appeal period?

Mr. Chatman: Well, Justice Ginsburg, when California does look to timeliness in proceeding from one lower court to a higher court, then we see that it contemplates that a... that a litigant will proceed in 60 days or less, because... and the reason we have to turn to analogies is because nothing in California law requires the appellate courts in State habeas to look to that particular period of time between the lower court decision and proceeding to that court, because they're courts of original jurisdiction.

So, they look at how long the prisoner proceeded from conviction to their court, as a whole.

But the reason that we need to figure out this period is because this Court, in Carey versus Saffold, has said that our system functions enough like an appellate system to bring those periods into the tolling provision.

So, when--

Justice Kennedy: Well, can't--

Mr. Chatman: --we look--

Justice Kennedy: --the... can't the California courts adopt a... give us a 60-day rule, or a 30-day rule, or a 90-day rule?

And if they don't do it, why should we do it?

Mr. Chatman: --Up to this point, they have not done so.

And I think that is because, as I said, they are looking at the time from conviction.

How long did it take the prisoner to get to their court with their claims?

And how... and how long they take properly proceeding up the ladder through the courts is just one factor that they look at.

And they--

Justice Breyer: I don't know how this came about.

I mean... I mean, I'm asking both sides the same question.

It'll sound very favorable to you, but if you answer it just yes, because it's favorable to you, I might learn, later, I was wrong, and you won't have had a chance to answer.

So, I want your honest opinion on this.

I don't know how this happened.

And I don't know... did you ask for en banc?

Mr. Chatman: --I'm sorry, how the 3 year delay happened?

Justice Breyer: No.

I don't know how the California Court could have read the opinion... which, of course, I wrote for the Court, so maybe I am reading things into it that weren't there... but I don't know how any judge could read that opinion we wrote and come to this conclusion.

I thought that it said, you know, on... that there are three issues... what's the word "pending"?

Does the word "pending" apply to the time period between when the lower court decides a case and you appeal?

That's typically 20 days or 30 days.

Mr. Chatman: Correct.

Justice Breyer: Are those 20 days or 30 days counted in the tolling period?

I thought part one clearly said the answer is yes.

Then we looked at California, and they don't have the words 20 days> ["] or 30 days> ["].

They say "reasonable time".

And then we said,

"Still applies, because 20 or 30 days. "

They don't have a radically different rule; it's a similar rule.

Then we come to part three, and it says, 45 days> ["].

There's... oh, 4 and a half months, wasn't it?

Mr. Chatman: Uh huh.

Justice Breyer: This isn't just 20 or 30 days.

Mr. Chatman: Uh huh.

Justice Breyer: So, is it timely?

Mr. Chatman: Uh huh.

Justice Breyer: And, there, I thought the court said... I mean, I was reading it... say,

"Well, it's hard to say, because there might have been excuses for the delay. "

What about the words that were written there, "on the merits"?

Mr. Chatman: And there was an equitable--

Justice Breyer: On--

Mr. Chatman: --tolling question.

Justice Breyer: --But that had nothing to--

Mr. Chatman: Right.

Justice Breyer: --do with the case.

The lack of diligence had nothing to do with this aspect of the case.

But, what about the words "on the merits"?

And there, what I think the court wrote is that the fact that it says "on the merits" doesn't prove it... what... it doesn't prove that it was timely.

Why?

And then I listed a bunch of reasons.

There are reasons.

Sometimes courts say "on the merits", even though it's delayed.

All right?

They say "on the merits".

Or because they want to tell the prisoner or... there are a lot of reasons why, all of which are listed.

So, we send it back to see whether this 4-and-a-half-month delay, given the excuses, was still timely.

We... all right?

Mr. Chatman: Yes.

Justice Breyer: Now--

Mr. Chatman: Justice--

Justice Breyer: --we now get a case where it's 3 years.

Mr. Chatman: --Uh huh.

Justice Breyer: And the court says,

"It's timely, because they used the word'on the merits. "

"'. "

But I thought... I said, in the opinion, I thought the court adopted that the words "on the merits" do not decide the matter.

Justice Scalia: Isn't it--

Justice Breyer: Now, what do you--

Justice Scalia: --worse than that?

Justice Breyer: --do in those circumstances?

Mr. Chatman: Justice Breyer, I could not agree--

Justice Breyer: No, but did--

Mr. Chatman: --with you more.

Justice Breyer: --you ask for rehearing en banc?

Because any judge, including me, can make a mistake.

What did you do?

Mr. Chatman: We petitioned for certiorari in this Court.

Justice Breyer: And you didn't ask for a hearing en banc.

Mr. Chatman: No, we did not.

Justice Breyer: Well, why, when you--

Justice Scalia: Would--

Justice Breyer: --get a fair... because any judge can make a mistake--

Mr. Chatman: The--

Justice Breyer: --why don't you just go and ask the Ninth Circuit to say,

"Look, this is not... read the opinion, read what they said. "

"Correct it. "

Mr. Chatman: --This is not the first time that we have tried to take that approach with the Ninth Circuit on this issue.

They... on remand, in Saffold versus Carey, they made the same mistake, and the rehearing has got us nowhere... asking for a rehearing.

And so, we felt that in order to get this clarified as soon as possible, it seems futile to ask for rehearing when on the... when we had not been successful before.

Justice Scalia: --Yes.

Well this--

Mr. Chatman: This is, by the way--

Justice Scalia: --this case is different, actually, from the one that Justice Breyer put, because, in this case, the California Supreme Court didn't say--

Mr. Chatman: --Uh huh.

Justice Scalia: --"# on the merits".

It said nothing at all.

It just disposed of it.

So, the question presented is quite different.

Justice Breyer: It's worse.

Justice Scalia: It's whether... not whether it can be, nonetheless, timely when they say "on the merits", but whether it can be, nonetheless, timely when they don't say anything at all.

Mr. Chatman: But--

Justice Scalia: I would think it's an a fortiori case, in other words.

Mr. Chatman: --And the Ninth Circuit is treating it as if it were the same sort of decision that was before this Court in Carey versus Saffold.

It is a decision on the merits.

And they are reading that as excluding any other possible grounds that might have existed for the denial in that case.

Justice Breyer: You're representing the attorney general of California, and you have a lot of litigation in the Ninth Circuit.

It's... I mean, the other side's going to answer on the merits, if they can.

And they're in an awkward position here, I understand.

But I need to know what to... what do you think we should do?

I mean, here, we write an opinion, and they--

Mr. Chatman: Uh huh.

Justice Breyer: --it seems to perhaps, inadvertently or not... and the reason I turn to you is, judges are busy, they have huge dockets--

Mr. Chatman: Yes.

Justice Breyer: --And, often, unless it's very clearly pointed out by the lawyers, or the lawyers take action, you get... waste everybody's time and money.

Mr. Chatman: Uh huh.

Well, I think the answer is to instruct the Federal Courts that, when they're undertaking this inquiry of whether an application is pending during the interval, a Federal question that has a State law component, then they must apply the State law to figure out if it's timely.

And, you know, as this Court said in Carey the... versus Saffold... it's a matter of whether it's timely; it's not a matter of the basis of the State Court decision.

And in the context of California, I think the answer is to adopt a presumption of 60 days, because that is the most analogous--

Justice Ginsburg: In... even if, as he alleged, he was unable to do anything in--

Mr. Chatman: --Uh huh.

Justice Ginsburg: --This is a layperson.

He said,

"I tripped in the intermediate appellate court, because I didn't do any research. "

"And so, I wanted to do better, but they gave me a job where, during the hours that the library was open-- "

Mr. Chatman: Uh huh.

Justice Ginsburg: "# I had to be at work. " "And that's why it took me all this time. "

Mr. Chatman: Uh huh.

Justice Ginsburg: Now, is that... suppose the prison locks down someone and say,

"You can't go to the library. "

Mr. Chatman: This is an easy decision for the Federal Court, even on these facts.

Okay, this Petitioner has taken longer than 60 days, and he's offered an explanation.

But if you look at his explanation, on its face, it's completely inadequate to account for a 3-year delay, because he doesn't take action to get... to get library access for an entire year after the Court of Appeals decision denying his application is issued.

Then he spends 3 months, quite correctly, going through the administrative procedures of the prison to get a job change.

And he does, in fact, get a job change 3 months later... about 3 months later.

Then, he waits still more than another year before he files his petition in the California Supreme Court presenting essentially the same claims, same facts, same law.

Justice Breyer: So, in other words, he delays, after he gets the library access, for an extra year.

Mr. Chatman: Yes, he does.

Now, he--

Justice Breyer: Now, is there any excuse they're making for that?

Because if you don't tell me, they're--

Mr. Chatman: --Later on--

Justice Breyer: --going to tell me.

Mr. Chatman: --later on, once he gets to Federal Court--

Justice Breyer: Yes.

Mr. Chatman: --he offers the explanation that the prison was on lockdowns.

There are several problems with that assertion; the first being, it wasn't presented to the State Court, so it's... it cannot cure his State untimeliness.

The second being that he doesn't offer specific dates or explain how it prevented him from filing his petition.

And the third problem is that State prisons provide procedures during lockdowns to get library materials to prisoners.

Justice Stevens: Can I ask a rather probably sort of stupid question?

But I gather there are a large number of these cases disposed of by a postcard.

Would there be anything wrong if the California Supreme Court said,

"We're going to have two postcards. "

"One says that the delay was unreasonable, denied. "

--and the other says there's nothing to the merits denied... used two postcards... wouldn't that solve all the problems?

Mr. Chatman: The problem with that is... certainly, it would solve things, but the problem with that is, it would require the... require the California courts to make both of those determinations in every case.

And, as it is now, they use a procedure much like--

Justice Stevens: But they could adopt a 60 day rule, or a 90 day rule, and then just, when they decided to not follow the rule, they'd put a check on... say,

"Well, we did look at the merits in this case. "

Mr. Chatman: --They could do that--

Justice Scalia: Under our current law, it wouldn't make any difference, would it?

Because even if they sent the "on the merits" postcard, Carey versus Saffold says--

Mr. Chatman: --Correct.

Justice Scalia: --it doesn't matter.

Mr. Chatman: That's true.

And that is why I say they would have to make both determinations, because--

Justice Souter: Well, may--

Chief Justice Roberts: Well, it might--

Justice Souter: --may I... no, go ahead.

Chief Justice Roberts: --I was just going to say, it might matter if they had another postcard that said it's untimely, and they didn't send that.

That would be a whole different situation, right?

Mr. Chatman: --That's true, but we are... we are engaging here in trying to tell the California State Courts how to dispose of these cases, which I am really not sure is an appropriate thing for us to do.

They're--

Justice Souter: Well, but--

Mr. Chatman: --using a--

Justice Souter: --if we--

Mr. Chatman: --procedure--

Justice Souter: --if we decided it... it was at least appropriate to give a hint, aren't we in a little bit better position than you suggested, in the light of Carey?

Because in... is... correct me if I'm wrong, but I thought, in Carey, the State order was not merely that it was on the merits, but that it was on the merits and it was untimely.

In other words, it said A and B.

And we said, you know, "That's ambiguous", to start with, and then we went on and said,

"You know, sometimes "merits" don't mean merits. "

But if the State were to revise its procedure and say,

"We're either going to say A or we're going to say B, and that's our reason. "

and they said, "It's on the merits" or "it's untimely", wouldn't it make sense for us, even in the light of Carey, to say,

"Okay, we'll accept that as the... as the State's reason? "

Mr. Chatman: --If they were to do that.

But I don't anticipate the State Courts adopting that practice, because it would double their work.

They would have to make both decisions, merits and untimeliness.

Justice Souter: I don't--

Mr. Chatman: It--

Justice Souter: --see why.

If they're going to follow something like a prima facie 60 day rule, and it's... it's on day 65, all they've got to say is, "It's untimely".

Justice Scalia: Well, in this--

Mr. Chatman: --But the--

Justice Scalia: --in this case, in order to determine it was untimely, they would have presumably had to have gone into the factual analysis of whether the prison was on lockdown, whether he delayed for a year after getting the materials, and all of that stuff.

So, it's a lot easier for them, when the merits of it seem to them absolutely clear, to simply deny it on the merits and not reach the "timely" question.

Mr. Chatman: --And that--

Justice Scalia: But the "timely" question is still before Federal Courts.

That's what we said in Carey versus Saffold.

So--

Mr. Chatman: --I agree.

And they--

Justice Scalia: --although they can avoid it, we can't.

Mr. Chatman: --And that... and that is the way the State Courts are approaching these cases.

They, for the most part, will look first for a prima facie case, and in... much like the Federal Courts do in Federal habeas under Rule 4, where they scream for frivolous petitions that can be dismissed outright without asking for a response from the warden or instituting briefing, then they can deny those summarily.

And the reason why they cannot justify timeliness is because then the Ninth Circuit will interpret that as not reaching the merits, and we will have a problem of deference.

So, if they were to decide one explicitly, they'd have to decide the other, the way things stand now.

And I--

Justice Stevens: I--

Mr. Chatman: --as a--

Justice Stevens: --I must say, I don't quite follow the... why couldn't they simply say it's untimely?

Wouldn't that... that it... there was... it was not pending during this period, because it... 3 years elapsed, and that's unreasonable.

Wouldn't that end the case?

Mr. Chatman: --It would, but it's not a State law question.

They don't... whether it's pending during that period is not a--

Justice Stevens: No, I understand--

Mr. Chatman: --State law--

Justice Stevens: --but whether--

Mr. Chatman: --question, because--

Justice Stevens: --it was a reasonable time to file is a State law question.

Mr. Chatman: --Whether he took a reasonable time from the lower... from time of conviction to their court is the only State law question--

Justice Stevens: Well, isn't the--

Mr. Chatman: --because of the--

Justice Stevens: --Doesn't the--

Mr. Chatman: --original--

Justice Stevens: --California Supreme Court sometimes decide that the time between the intermediate court's decision and the filing in the California Supreme Court... don't they ask whether that was reasonable?

Mr. Chatman: --I have--

Justice Stevens: Or they only relate it back to the day of the conviction?

Mr. Chatman: --I have only seen one case in California where they specifically addressed that particular interval because the Attorney General raised it, and that's the Moss... in re Moss, which is cited in the red brief.

Justice Stevens: May I ask that, if you had a case in which the Attorney General raised the... say, this case, and yet... and say California Supreme Court wrote an opinion in which it said,

"Now, 3 years has gone by, but the prisoner has given us a very elaborate explanation. "

as Justice Ginsburg suggested,

"and we find that explanation sufficient; therefore, we conclude that, even though it was 3 years, it was a reasonable time; and, therefore, we're going to address the merits. "

"And we now address the merits and say you lose. "

Now, in that case, would it be pending, for our purposes?

Mr. Chatman: Yes, because the State Court found it timely, and that would be--

Justice Breyer: It would?

I thought--

Mr. Chatman: --that would be--

Justice Breyer: --that was--

Mr. Chatman: --the end of--

Justice Breyer: --an open--

Mr. Chatman: --the matter.

Justice Breyer: --question, frankly.

I mean, I can't imagine California would do this, but I guess if California did say that,

"The period of time between the time you lost in the District Court and the time you filed, in every other State, is 30 days, but, in California, it's a reasonable time. "

"And what we mean by a 3 years, without any excuses. "

--I guess, then, maybe the dissent in Carey v. Saffold would have been right in respect to that.

Mr. Chatman: If--

Justice Breyer: It would have said that that isn't pending under Federal law, whether California says it or not.

So, the role of the Federal law versus the State law, I thought we left open.

Mr. Chatman: --I think this Court, in Carey versus Saffold, and in Pace versus DiGuglielmo, has stressed the importance of deferring to State law determinations--

Justice Breyer: But you can't--

Mr. Chatman: --State Court--

Justice Breyer: --defer to something--

Mr. Chatman: --determinations.

Justice Breyer: --under this statute, where Congress wrote the word "pending".

And I wouldn't have thought they did have in mind a--

Mr. Chatman: Uh huh.

Justice Breyer: --State that says,

"It's pending, even though you have no excuse and didn't file anything for 3 years, your appeal. "

Now, I haven't heard that fully briefed and so forth, so I hesitate to express a final conclusion on it.

But it--

Mr. Chatman: Well, it's--

Justice Breyer: --since it's never going to come up, I don't think, I don't know I have to have a final conclusion.

Mr. Chatman: --I don't think so. But it's pending... it's pending while... if it's timely under State law.

And if the State Court has already spoken to State law, I don't know that there's a question left for the Federal Court.

I think... I think they say,

"Okay, this was timely, and, therefore, pending during the interval. "

But--

Justice O'Connor: Now, you want us to apply a presumption that a petition is timely if it's filed within 60 days.

But California doesn't apply such a presumption, does it?

Mr. Chatman: --No, it does--

Justice O'Connor: And--

Mr. Chatman: --not, but--

Justice O'Connor: --where do we get that?

I mean, where does that come from?

Mr. Chatman: --Where that comes from is, if you look to the closest analogous State procedures... say, direct appeal from a conviction... then you're allowed 60 days to go to the next... to the appellate court.

Similarly, if the State appeals the grant of habeas relief... the State, unlike the defendant, can appeal... then the State gets 60 days.

So, when California thinks... when California quantifies the concept of reasonableness in the appellate context, they do so in terms of 60 days or less.

And I say "or less", because State habeas is actually supposed to be a quicker process than the appellate process.

Justice O'Connor: Well, shouldn't we leave it to California to adopt such a presumption?

Mr. Chatman: California's not going to do that, because it's not a State law question.

It's just not a State law question.

But it's... I think it's acceptable for a Federal Court to adopt a presumption to assist them in deciding a State law issue, much--

Chief Justice Roberts: What--

Mr. Chatman: --the way.

Chief Justice Roberts: --good would the... what good would the presumption do if it's just a presumption?

Presumably, if it's a presumption, the prisoner is--

Mr. Chatman: Uh huh.

Chief Justice Roberts: --going to say,

"Well, here's why you shouldn't follow the presumption in my case. "

just as, if it looks like he's waited a long time, he's going to say,

"Well, here's why that delay was reasonable. "

I don't know that the presumption you're proposing serves much of a purpose.

Mr. Chatman: The value of a 60-day presumption is that it saves the Federal Court from having to look at the State law time... of the timeliness in that particular case and--

Chief Justice Roberts: No, it doesn't--

Mr. Chatman: --it ought--

Chief Justice Roberts: --not if the prisoner says,

"Here's why you shouldn't follow the presumption. "

Mr. Chatman: --Well, that's true.

But if it... but if he files within 60 days, there's no need to look further or consider his argument regarding timeliness.

And the other value in the 60-day--

Justice Scalia: Why phrase it as a presumption?

Why not phrase it,

"We determine California law to be, unless we hear otherwise, having examined what it does in other situations, that 60 days is timely? "

Mr. Chatman: --I think that would be perfectly fair.

Justice Scalia: It's the same thing.

But I wouldn't call it--

Justice Breyer: They are--

Justice Scalia: --a presumption.

Justice Breyer: --but that's a--

Justice Scalia: And then--

Justice Breyer: --that's--

Justice Scalia: --and then the... you know, the incarcerated individual can come forward with excuses and say that,

"California would make an exception to the 60 day rule for this. "

and we're back where we were.

Mr. Chatman: Well, that would be fair, and it would accomplish the other thing that I offered the 60 day presumption to accomplish, is to offer a sort of safe harbor where the Petitioner knows that he gets tolling for 60 days, and need not file a protective petition.

Justice Souter: Well, it would--

Mr. Chatman: So, it alleviates that problem.

Justice Souter: --it would... it would be fair, but to call it a finding of California State law is a... would be a bit of a stretch, wouldn't it?

I mean, you... you've made a perfectly good argument that it would be a sensible rule for California--

Mr. Chatman: Uh huh.

Justice Souter: --to adopt, would not be sensible for us to adopt.

But I'd have a hard time saying that I could justify it as a statement of current California law, and I'm--

Mr. Chatman: Well--

Justice Souter: --Am I missing something?

Mr. Chatman: --Well, Justice Souter, I think it works very well as a presumption adopted by the Federal Courts for ease of administrability and, you know, at the same time, reflecting State law.

Justice Souter: Okay, the--

Mr. Chatman: But the--

Justice Souter: --So you're back to the presumption.

But--

Mr. Chatman: --Right.

But--

Justice Souter: --but if--

Mr. Chatman: --but the one thing--

Justice Souter: --if we're going to go further and say,

"Oh, well, we find that that's what the State law is, unless they tell us differently. "

that's where I'm having trouble.

Mr. Chatman: --Well, it's not very different from when the Federal Courts adopt a State statute of limitations--

Justice Souter: Yes, but we--

Mr. Chatman: --for a Federal--

Justice Souter: --know what it--

Mr. Chatman: --cause of action.

Justice Souter: --we know what it is.

There's a State statute of limitations.

It says--

Mr. Chatman: Uh huh.

Justice Souter: --3 years.

Mr. Chatman: Well--

Justice Souter: We don't have anything like that here.

Mr. Chatman: --By analogy, you know that the period of time for seeking direct appeal is 60 days.

So, it is... it's deciding something by analogy, in much the same way the Federal Courts do for a Federal cause of action that has no statute of limitations.

Justice Breyer: --How many cases are there on habeas in California every year, about?

Mr. Chatman: Oh.

Justice Breyer: No, I mean about.

Just give me the rough ballpark.

Mr. Chatman: I would... there are about 8,000, I would say.

Justice Breyer: All right.

So, the... in the Supreme Court.

Mr. Chatman: No.

In the Supreme Court, I would say it is more like about 2500.

Justice Breyer: So, there are 25... so there are several thousand cases every year.

Mr. Chatman: Thousands.

Justice Breyer: All right.

Thousands.

Mr. Chatman: Thousands.

Justice Breyer: Okay.

So, I don't know what I'm doing with California procedure when I pass a... pass a law, is what it would be.

Write a rule, write a presumption.

I have no idea what I'm doing there.

They've worked out a system.

But I don't... why doesn't it work just to say to the lower courts, "Do your job"?

What we said... and maybe it wasn't expressed clearly... maybe...

"Courts, look, it says "reasonable time"? "

"Now, reasonable time, in every other State is 30 days, sometimes 20 days. "

Mr. Chatman: Uh huh.

Justice Breyer: "Sometimes the most, 60 days. "

"So, look and see if it was filed within a reasonable time. "

"That's all. "

"And if California passes... some specific thing says something special about it, of course, pay attention to that. "

What's wrong with that?

They just would do it like they do any other thing of deciding what happens in--

Mr. Chatman: That is... that is exactly what I would ask this Court to do.

Exactly... is to... Federal Courts take on this Federal question of tolling and complete the analysis by applying State law to find out if these petitions were timely filed in merit tolling.

Justice Scalia: Is "reasonable time" the issue, or is it what California would consider a "reasonable time"?

I mean, that's the problem.

Justice Breyer: --Yes, that is the problem.

Justice Scalia: We're not--

Mr. Chatman: It--

Justice Scalia: --making up, for ourselves, what's a reasonable time.

If California says a year is a reasonable time, that would be the reasonable time at issue, wouldn't it?

Mr. Chatman: --I don't think it would be, in light of--

Justice Scalia: No?

Mr. Chatman: --in light of the analogous State law that you only get 60 days to--

Justice Scalia: No, but if--

Mr. Chatman: --appeal, but--

Justice Scalia: --the California Supreme Court says,

"Despite all of these, in this kind of a situation, we think a year is a reasonable time-- "

Mr. Chatman: --But they--

Justice Scalia: --you--

Mr. Chatman: --haven't said so.

The... of course, you--

Justice Scalia: --I know, but if they said so--

Mr. Chatman: --If they said so--

Justice Scalia: --that would be binding--

Mr. Chatman: --if they had--

Justice Scalia: --on us, wouldn't it?

Mr. Chatman: --If they said so, then we'd have State law, and we would have to apply that.

But we don't.

Chief Justice Roberts: Why would you have to apply that?

It's a Federal question whether the claim is pending or not during that whole period, right?

Mr. Chatman: Of... certainly it is.

Certainly it is.

But, at the end of the analysis, there is a little bit of State law analysis.

It has to be timely under State law.

And if California Supreme Court tells us more about what's timely under their reasonableness standard, then I think you would have to take that into account.

But the concept of reasonableness and due diligence that are employed in States... in California's timeliness standards, I don't think "reasonableness" and "due diligence" mean anything different at the Federal courthouse in Sacramento than they do at the State Court of Appeal five blocks away, or in this Court.

It's... these are common terms that are used in the law all the time.

Justice Stevens: May I ask this question?

I think our opinion the last time around suggested that possibility would certify into the California--

Mr. Chatman: Uh huh.

Justice Stevens: --Supreme Court, and that was not done.

Was any other effort made that you can tell us about?

Maybe you should, off the record, but to try and get the guidance of the California Supreme Court on the... on the State law problem here?

Has anybody suggested to the court they might adopt a rule or a different practice or anything like that?

Mr. Chatman: Your Honor, yes, we have suggested that.

The California Supreme Court... and, as you said, this is not within the record... the California... but, if I may, the California Supreme Court has declined to adopt a rule.

They think it's a political question that has to be decided by the Legislature.

And the Legislature, to date, has not adopted a rule or... not a rule, a statute of limitations for these cases.

And I have to say that, if they undertook that, then there would be certain costs to doing that, as well.

You know, we would... we would... we would ease this issue, but we would confront the cost of considerable litigation, I would imagine, if we adopted a new statute for collateral relief in California.

So, there's a cost to doing that, that might outweigh the benefits of--

Justice Stevens: Thank you.

Mr. Chatman: --clarifying this issue.

If I may reserve my time?

Argument of Peter K. Stris

Chief Justice Roberts: Thank you, Counsel.

Mr. Stris.

Mr. Stris: Mr. Chief Justice, and may it please the Court--

In light of Justice Breyer's questions, I feel compelled to begin with a brief explanation of why this case is a necessary consequence of Saffold.

And, although it wasn't my initial intention to speak plainly, what I would suggest is that the problem is not the Ninth Circuit's decision in this case, but, rather, California's timeliness standards.

And the problem that's presented by this case is one of Federal line drawing.

And it presents serious federalism, comity, and fairness concerns.

And if we could step back from the facts of this case for a moment... and I will discuss them... I think it... I hope, at least, it will become clear that the Ninth Circuit, in light of what it's dealing with in California, adopted the only sensible rule.

So, the place to begin in answering some of your questions, Justice Breyer, is with California's timeliness standards.

And to give some background, I would start with the principle that was articulated in the Warden's brief and that the California Supreme Court has articulated, which is that California does enforce its timeliness standards.

It's usually done by... in the summary denial context, by citing to In re Swain or In re Robbins--

Justice Kennedy: I missed it.

You said the problem is, California doesn't "support" or "import"?

I just didn't--

Mr. Stris: --Oh, I--

Justice Kennedy: --hear your word.

Mr. Stris: --apologize.

Justice Kennedy: I... the... I just didn't hear what you said.

Mr. Stris: What I had said is that California does enforce it's--

Justice Kennedy: Enforce.

Mr. Stris: --timeliness standards.

And the way they customarily do that--

Justice O'Connor: And what are those standards, please?

Mr. Stris: --Okay.

The standards are that a prisoner must file within a reasonable time.

And that requires a two part inquiry, Justice O'Connor.

The first part is, Was there substantial delay?

It's determined based upon a set standard, when the delay begins.

But California's never articulated any standards for what period of time constitutes "substantial".

That's the first problem.

It's essentially an ad hoc determination that's made by individual California Courts.

And that's why former Justice Brown described that as "an abstraction", and former Justice Moss described it as

"vague and indeterminate at its very core. "

But that's what the Ninth Circuit is dealing with when it reviews these cases.

So, to put it context for a moment, the way the State Courts do enforce this on a case by case basis, to be practical, is, the State Supreme Court often summarily dismisses cases on procedural bars, including timeliness.

And, to give you some statistics from the Warden's brief, in 2004 there were 1,223 unexplained summary denials... in other words, just denied... and there were 1,174 denials with a citation to a case.

And this is significant, because this means that, in about half of the cases in 2004 that went to the California Supreme Court, they enforced one of their procedural bars, and, in many of them, it was timeliness.

Justice Scalia: Wait.

A case that was a procedural bar case?

Mr. Stris: I'm not sure... I'm not sure I follow the--

Justice Scalia: Well, you--

Mr. Stris: --question, Justice Scalia.

Justice Scalia: --you could summarily deny and cite a case that showed you were denying on the merits.

Mr. Stris: Oh.

What I... what I was suggesting is that there were 1,174 cases that were procedural bar cases, where it said--

Justice Scalia: Where they cited a procedural bar case.

Mr. Stris: --That's correct.

Justice Scalia: All right.

Mr. Stris: It would say, "Denied, In re Swain", meaning denied for being untimely.

As opposed, Justice Scalia, to the 1,223 cases that were unexplained.

Justice Kennedy: And this could be--

Justice Breyer: But, now, maybe I'm--

Justice Kennedy: --just one point, if I may, Justice Breyer... those are the California Supreme Court or California appellate court?

Mr. Stris: That's the California Supreme Court.

Justice Kennedy: Thank you.

Mr. Stris: Okay.

Justice Breyer: --So, the difficulty of looking to that, which may be a good difficulty... I mean, that is a serious problem, but I thought what we wrote in the case... see, there are two problems here.

First, which was bothering me, had to do with our Court's relation to the Ninth Circuit, which may be simple and... as far as legally is concerned... but I'm not sure about it.

The other, which is much more interesting, is what you're talking about.

All right, now, on the first one, I read the words.

It says the words "on the merits".

The Ninth Circuit thought those three words meant that the California Supreme Court could not have considered the petition too late, for, after all, it decided it on the merits, just as with the cite.

Now, whether these words are right or wrong that follow, that's what we wrote.

The next words were,

"There are many plausible answers to this question. "

Sometimes, a court addresses the merits of a claim that it thought was presented in an untimely way.

Why?

Because they don't present any difficulty, and the timeliness issue does, or because it wants to give the reviewing court alternative grounds for decision, or maybe it just wants to show the prisoner we thought about the claim on the merits.

He, after all, doesn't have a lawyer.

He gets a postcard.

That helps him.

So, there are a lot of reasons.

And it says, "Conclusion".

Given the variety of reasons why they might have put the words "on the merits", the fact that they are there, those words cannot, by themselves, show that the petition was timely.

So, then I read what they wrote.

What they wrote is,

"When the California Court denies a habeas petition without comment or citation, we have long treated the denial as a decision on the merits. "

Okay?

And then it cites a pre Carey case.

"Therefore, the summary denial was on the merits, and the petition was not dismissed as untimely. "

citing two pre Carey cases.

Now, I don't see how, since I just said the words

"on the merits do not end the issue. "

--here, the words weren't even there, but they say,

"We're treating it as if they were, and that ends the issue. "

So, what do we do about that?

Then the next question, once I figure that one out, is, What do we do about the issue you're raising, which is quite important and interesting and so forth?

Mr. Stris: Okay.

Well, as to the first question, the explanation that you just provided clearly requires the Federal Courts, when there's some indication from the State Court that it might have been untimely, to look into it.

And that was the very problem with what the Ninth Circuit did in that case.

It said

"on the merits and for lack of diligence. "

So, to presume that that was just on the merits, that's flatly wrong.

You'd need to do some further investigation.

In light of the context of what's happening in California, however, when the State Court says nothing, there has to be some process by which the Federal Court can make a decision as to what that means, because if, in fact, in that case it was denied no the merits and the State Court thought it was timely, it would be extremely invasive for the Federal Court to rereview the case, potentially come to a different conclusion, and, we would suggest, dramatically alter the landscape of how prisoners exhaust their remedies in California, because now you're developing a Federal body of law that may be very different in deciding what's substantial and what's reasonable than California did.

And so, what the Ninth Circuit, I believe, did in this case was look to context and come up with the presumption that was most reasonable in light of what's going on.

So, the first thing that is relevant, from a--

Justice Scalia: Why is that the most reasonable presumption?

Why isn't the most reasonable presumption that the California Court denies, for untimeliness, wherever that issue is absolutely clear--

Mr. Stris: --The--

Justice Scalia: --and where that issue is not absolutely clear, and the... and the merits issue is absolutely clear, it just... it just denies?

Mr. Stris: --The answer... pardon me--

Justice Scalia: It doesn't want to say "denied on the merits", because that would suggest that it was timely.

Mr. Stris: --The answer, I would suggest, Justice Scalia, requires looking to California practice.

And where I would start is with the California Supreme Court's decision in In re Sanders.

And in In re Sanders, the Court made clear that after the Supreme Court adopted their policies in 1989 regarding certain presumptions in capital cases, and after the seminal In re Clark case in 1993, which asserted... rather, articulated California's timeliness standards, most petitions... and these are the California Supreme Court's words... "Most petitions are timely filed".

So, with that backdrop and the fact that half of the California Supreme Court's cases are being denied with a case citation, it's reasonable to conclude that the unexplained denials are not necessarily untimely.

Now, I would add to that--

Justice Scalia: I don't know what it... 51 percent.

I mean, among those that you don't know whether it was the merits or not, there could be a lot of ones where the timeliness is simply not decided upon.

Mr. Stris: --It's certainly the case, Justice Scalia, that the presumptions the Ninth Circuit adopted could permit cases that even the California State Courts would consider to be untimely--

Justice Breyer: Well, we could work with that.

Now, that's, sort of, helpful, because if they say "most are timely filed", then the next question would be,

"All right, what period of time is it? "

Mr. Stris: --Well, that's the--

Justice Breyer: You'd have to get some professor to go through these cases, and they could... they could figure out how long it is.

What do you think it is, from your experience?

Mr. Stris: --I can't really answer that, and that's at the heart of--

Justice Breyer: But, I mean, is it more like a month, or is it more like 3 years?

Mr. Stris: --Well, the reason I would suggest that... and answering that is not necessarily appropriate or helpful in resolving the question... is because of the series of cases that we quoted in footnote 15 of our brief.

In certain instances, the California Courts have found 3 and a half years, 1 and a half years, 2 years to be reasonable.

Now, that doesn't mean--

Justice Breyer: Because?

Mr. Stris: --In one instance, it was because of attorney abandonment.

In other cases, it was because the prisoner was indigent.

Justice Breyer: So, there's a special reason.

In your case, is there really a year that isn't explained at all?

Mr. Stris: Oh, I think it would apply to our case, as well.

Justice Breyer: Because?

Mr. Stris: In our case, the first 15 months--

Justice Breyer: No, forget that.

The library, I'll give you.

What's the rest?

Mr. Stris: --After that, our client was effectively on lockdown and had no access whatsoever to the library.

Now, this presents the burden problem with doing any sort of independent determination.

The Attorney General suggested, in the District Court, that there was a paging system in place whereby prisoners who are on lockdown could get access to the library.

There was never any suggestion in the District Court on the part of the Attorney General that the lockdown didn't exist.

And the Attorney General, and not my client, would have access to those records.

Justice Breyer: But... well, did your... did your client file an affidavit or something saying he didn't have access to the library during the whole period of 3 years?

Mr. Stris: I wouldn't call it an affidavit, but it was... he filed an opposition to the motion to dismiss.

Justice Breyer: Well--

Mr. Stris: And--

Justice Breyer: --is there anything in the record that says, during the year after they said,

"We'll change your job so you can get access to the library. "

that he didn't have access to the library?

Mr. Stris: --Yes.

I... well, I... he didn't talk about not having access to the library.

It's implicit, if you look at the Joint Appendix at--

Justice Breyer: Well, all right, so what's his reason for saying that,

"Last year, I was not able to file a petition in California Supreme Court? "

Mr. Stris: --That he had had... had access to nothing.

In other words, he didn't say, "I didn't have access"--

Justice Breyer: So, what does it say?

What does he say?

Go ahead.

Mr. Stris: --Well, it would be on the Joint Appendix, pages 38 and 39, where he describes the lockdown. And, you know, I haven't looked at it recently, but my understanding is that he was suggesting that he had had access to nothing, including the prison library.

And the Attorney General suggests that there was a paging system, but the documentary evidence that the Attorney General puts into the record, which is on pages 68... 67... no, pardon me, 88 through 96... is a prison manual that's dated 2000.

Now, it says it's amended.

But my client takes the position that this wasn't in the place at his prison at that time, and that would require a--

Justice Scalia: Well--

Mr. Stris: --evidentiary hearing--

Justice Scalia: --the burden--

Mr. Stris: --to determine--

Justice Scalia: --for that one is on him.

I mean, if you say the burden is on the State to come up with a... you know, showing that there was such a system, they came up with it.

And you say,

"The system may have been amended. "

Well, if it has been amended, there the burden is on you.

Mr. Stris: --Of course.

But--

Justice Scalia: I mean--

Mr. Stris: --the burden--

Justice Scalia: --well--

Mr. Stris: --Pardon me.

The burden on him would be in the context of an evidentiary hearing, which never took place.

The District Court in this case didn't reach that issue, because they found that statutory tolling--

Justice Breyer: Now, the--

Mr. Stris: --wasn't available.

Justice Breyer: --the next thing, what he actually says here, is that the C facility where he was confined was put into lockdown clearly into February 1997.

And this is all after he got access.

Then it remained quiet and lockdown free until August 11th, 1997.

So, that seems six months, on the most generous interpretation--

Mr. Stris: But that--

Justice Breyer: --where he's not in lockdown, and he has access to the library.

Mr. Stris: --But that illustrates the very--

Justice Breyer: About six months.

Mr. Stris: --That's correct, Justice Breyer.

And that illustrates the very problem with this case, which is that in cases where there is 90 days, 2 months, 4 months, the very difficult questions that a Federal Court would normally look to State law, if it was determinant, to apply, California is giving no guidance.

And our case falls within that once you look to the particular explanations that our client put forward.

And so, we would suggest that if there is a concern on the part of the Court about certain cases getting through and essentially allowing prisoners to abuse the writ, that this Court will use its equitable discretion to look at individual cases and to decide,

"Hey, is this a situation where the behavior is dilatory? "

"Is this a situation where the behavior is abusive? "

And that would restrict the number of cases where Federal Courts would need to engage in a factual inquiry.

The alternative is adopting a presumption, that the Attorney General suggested, that the California Courts have flatly rejected.

That presumption has been adopted... has been imported from the direct appeal context.

It has no significance in California habeas law.

In the direct appeal context, prisoners have the right to counsel.

In the habeas context, they don't, except in capital cases.

And, unsurprisingly... pardon me... unsurprisingly, the California Supreme Court has adopted a presumption of 90 days, in the capital context.

So, in the... in the noncapital cases, like my client's, where individuals have no incentive to delay... my client has been up for parole twice already, he has no incentive to delay the habeas process... and where people like Mr. Chavis think that they're, in good faith, complying... and it's not just an issue of excuse... and this goes back to a... to a question that Justice O'Connor asked earlier... there are specific policy reasons why the State of California has adopted the standard that it has.

They've articulated--

Justice Stevens: May I just interrupt?

I want to be sure that I get one thing straight.

The 90-day presumption in capital cases, that is that if it's within 90 days, it's reasonable.

Does it also presume that it's a... more than 90 days, it's unreasonable?

Mr. Stris: --It presumes that if it's within 90 days, it's timely.

Justice Stevens: Right.

Mr. Stris: And then you engage in the inquiry.

But that's significant, Justice Stevens, because these individuals are represented by counsel.

Justice Stevens: No, I understand.

But do they adopt the converse?

If it's more than 90 days, is it presumed to be untimely?

Mr. Stris: No, they do not.

And they've flatly rejected that and found cases where there's... several years' delay, even in the capital context, to be reasonable.

But--

Justice Stevens: Well, I could see how they could overcome a presumption that way, but there's not even a presumption that over 90 days is unreasonable.

Mr. Stris: --That is correct.

Justice Scalia: --There isn't.

You--

Mr. Stris: There is not.

Justice Scalia: --You mean if you go in and you say, 90 days, and you bring in no evidence whatever of any excuse for being over 90 days, you're telling me that California Supreme Court would accept it?

Mr. Stris: No, that's not true.

The--

Justice Scalia: Well, then--

Mr. Stris: --the--

Justice Scalia: --then it is a presumption--

Mr. Stris: --That's correct.

Justice Scalia: --that if it's over 90 days, unless you have a reason, it's untimely.

Mr. Stris: The burden shifts the prisoner to produce some evidence.

I didn't understand that to be--

Justice Breyer: So, here we have 180 days... 180 days, twice 90... with no excuse at all presented.

Mr. Stris: --In the noncapital context.

And it's very... it's very different, because the California State Courts are articulating particularly... particular policy reasons for noncapital prisoners to delay.

One that they're articulated is a desire to avoid the piecemeal presentation of claims.

And this is particular to California's original writ system.

You can have a functional appeal, but, because it's also an original writ, you... if you have an additional claim that's legitimate, you need to add it in that claim.

Justice O'Connor: But once it's--

Mr. Stris: And--

Justice O'Connor: --in the Federal habeas context, the AEDPA law suggests there's a great premium paid... at stake for promptly resolving these things.

What do we do about that?

This is in the Federal court system now.

Mr. Stris: --If it were the case... and there's no evidence on the record to suggest this... that a substantial number of cases were going to start coming through California with massive delays, and this Court was going to be forced to provide statutory tolling, that would be a problem.

But there's no evidence to suggest that.

And that ties back to--

Justice O'Connor: Well, what would we do in that situation?

Mr. Stris: --If that--

Justice O'Connor: If it's--

Mr. Stris: --started happening?

Justice O'Connor: --open to the Federal Courts.

Mr. Stris: If that started happening, I think you, in this Court, would do nothing.

I think that Congress would see what was going on, and they'd amend the statute, because that's clearly not what they intended.

But that's not this case.

Justice Ginsburg: Amend just for California, when the system is working fine, all the other States that do have the timelines?

Mr. Stris: I don't think they would do that, Justice Ginsburg.

But there's a proposal that I'm aware of, already, to change the specific language of 2244(d)(2), and it was made by a congressman in California.

It doesn't suggest changing it for California; it suggests changing the language.

But that hasn't happened.

Justice Ginsburg: To do what?

What would it say?

Mr. Stris: I believe it replaces the word "pending" with some replacement.

And so, it essentially changes the tolling provision to account for this problem.

But that hasn't happened yet.

Right now, we have a congressional statute that, on its face, does not require the Federal Courts--

Justice Breyer: What about this?

You might lose under this, but it... see, so you say... look, in every other State, the time for appealing from an appeals court to the State Supreme Court, asking them, is 20 days, normally, or sometimes 30.

So, if the Ninth Circuit gets a case in which it was longer than 30 days, then, irrespective of whether they say "on the merits", whether they cite a case, whether they don't say anything and just have a postcard, what the Ninth Circuit should assume that they've done is consider it untimely, in the absence of the kind of excuse that the California Courts might accept as an excuse.

So, then they'll look into that.

And if California, in the future, wants something different... which I'd be surprised... they will say that their system means that a 3 year delay, or whatever it is, is actually timely.

But, in the absence of some reason to think that, why not use the words, which would give you a chance to go back, and you could say,

"This is not a case of total lack of excuse. "

"There is excuse of the kind that California would accept. "

Mr. Stris: --Well, I think the problem with that sort of rule, Justice Breyer, is that it risks error, because California's standard is to indeterminate, and at very little... it gets very little benefit.

Because there's... there is no real harm... there's no real harm to the Federal interest here just because we have a conclusive presumption.

The very nature of a conclusive presumption is that sometimes there will be cases that don't fit the presumption.

But, on this record, and on anything I've seen from my review of California procedure, there's nothing to suggest that a... the Federal interest in avoiding substantial delays is compromised by the specific rule that the Ninth Circuit has adopted.

And the Ninth Circuit has adopted a--

Chief Justice Roberts: Well, how can you... how can you say that?

We do have a Federal rule and a limitation, and (d)(2) is an exception for time that it's pending before the State Courts.

And if the State Courts aren't going to bother to tell us whether something's timely or not, or pending, giving them a blank check does undermine the Federal interest behind the 1 year limitation period.

Mr. Stris: --I would say two things about that, Mr. Chief Justice.

The first thing is, I would strongly resist your characterization that the State Court is saying nothing.

I think that, in most cases, they are saying something, and that, in the cases that involve postcard denials, many of them, the court is saying that they're timely, and, in others, those are the hard questions.

So, I would restrict your characterization to the fact that California is not saying something in some cases.

Now, because the Federal statute necessarily imports a State standard, that's the very problem with the statute.

I can conceive of many instances where--

Chief Justice Roberts: Why do you think the Federal statute necessarily imports a State standard?

It says that the State postconviction proceeding must be pending.

And California presents an unusual situation, but we interpret that pending is a question of Federal law.

It's not a State standard.

Mr. Stris: --That's true, Mr. Chief Justice.

But if you took that to its logical conclusion, then, when State Courts made errors... they didn't see that a case was properly filed, they just missed it... the Federal Court would go in and review.

Or in a case where they did claim the reverse, the Federal Court could say,

"No, there was clear error. "

But this Court has rejected that in Saffold.

It's rejected it in Pace.

And... because that is informed by the very view that the tolling provision was included to encourage one round of State exhaustion free of Federal interference.

Justice Breyer: All right, but we decided... I'd like you to suggest something to... from putting yourself in the... in an imaginary position.

Carey versus Saffold did have a dissent.

And four Justices joined it.

And let's imagine that, when I read the dissent, I see the... and then I look at this case... I see imaginary words on the top of the dissent, which are, "We told you so".

[Laughter]

And... now, therefore, think not of if you were arguing Carey v. Saffold afresh, but think of the words that are actually written there.

And now think of what happened here.

And now propose something, please, that will, in fact, deal with the problem that this case seems to present.

Mr. Stris: Well, I would be lying, Justice Breyer, if I didn't say that I haven't thought about that.

And the problem is that the rule announced in Saffold isn't the right rule.

It's trying to deal with a problem that's been created by the California State Courts.

And so, the solution that the Ninth Circuit has adopted... that's our proposal.

We essentially think that it has a minimal harm to Federal interests, because maybe certain cases will get in that Congress didn't intend, but if you don't adopt it, there's no alternative.

You can't certify the question.

In California, you can't certify to the Court of Appeal.

You can't certify from a District Court. So, if the California State Courts aren't going to change, it's not incumbent upon this Court to read the statute differently than the proper interpretation.

And I concede the arguments that were made in the dissenting opinion in Saffold are very interesting, and they don't compel, in my opinion, a different interpretation of the statute; they recognize the difficulty that the statute presents.

And it presents that difficulty because it does incorporate, in some measure, a State standard, and because there's one State out there, California, that's doing something that's very difficult to deal with.

Justice Stevens: May I ask just two questions about California?

Is the problem we're discussing, with these long delays, primarily in the application the third range, the application of the California Supreme Court, as opposed to lower courts?

Mr. Stris: Well, I wouldn't characterize it as a problem, because, like I said before, I don't think that--

Justice Stevens: But is the condition, that there is the long delay, that primarily occurs in the... in the application of State Supreme Court?

Is it--

Mr. Stris: --I have no... I've seen no specific evidence to be able to answer that with any citation, but my understanding, Justice Stevens, is that that makes sense, because it's the last process that the prisoner is going to be able to engage in, then they'll have to go to the Federal Circuit.

Justice Stevens: --Then my second question is, Have we decided, or is it a matter of common practice in California, that the application to the California Supreme Court is necessary in order to complete the exhaustion?

Mr. Stris: It is... it is necessary, in my opinion.

I don't know if the State... if this Court has ever--

Justice Stevens: We've held it--

Mr. Stris: --decided that.

Justice Stevens: --in cases where there's direct review, but this is a different sort of animal that you have in California.

Mr. Stris: But once you start from the premise that these are functional appeals, which they are, I don't see how you could read AEDPA any other way.

I mean, AEDPA says that if there's an available method to challenge and... a petition, whether it be by review or original writ, to the California Supreme Court would be available.

So, you could be sure that if prisoners--

Justice Stevens: I think it is--

Mr. Stris: --didn't file--

Justice Stevens: --required.

Mr. Stris: --Yes.

If they didn't file, they'd get kicked out of Federal Court.

Justice Scalia: There's one aspect of Saffold that you haven't addressed.

We not only said what we said about they're saying CA9 case from 2001.

And we cited that as an example of how the Ninth Circuit rule, quote,

"risks the tolling of the Federal limitations period even when it is highly likely that the prisoner failed to seek timely review in the State appellate courts. "

close quote.

Mr. Stris: I would say two things about that.

Justice Scalia: How could the Ninth Circuit here simply have ignored that criticism of exactly what they did here?

Mr. Stris: Well, I don't believe they ignored it, Justice Scalia.

And if you look at the Welch case that you're referring to, on en banc rehearing the en banc panel reached a very different result.

They didn't reach the issue of timeliness, for the reasons I described, but they determined that that was not a functional appeal, because--

Justice Scalia: But we--

Mr. Stris: --the claim--

Justice Scalia: --we didn't cite the en banc decision.

We cited the panel decision--

Mr. Stris: --The en banc--

Justice Scalia: --didn't we?

Mr. Stris: --decision occurred after your--

Justice Scalia: After.

Mr. Stris: --case.

Justice Scalia: But the point is, we criticized the panel decision in Welch, which did exactly what this panel did here.

Mr. Stris: I don't agree with that characterization, Justice Scalia.

I believe that case was included to illustrate that this Court thought that was probably too long, and that not looking at all to what's happening in the California system risks that.

I don't think anything was at least necessary to the holding in Saffold--

Justice Scalia: We cited--

Mr. Stris: --because it--

Justice Scalia: --it for the proposition that it... as an example of how the Ninth Circuit rule, quote,

"risks the tolling of the Federal limitations period even when it is highly likely that the prisoner failed to seek timely review in the State appellate courts. "

That's what we cited.

Mr. Stris: --That is true.

And in the context of a case like Saffold, where there's a reference to lack of diligence, that risk is too great.

I'm not going to get up here and suggest that there's no risk to a conclusive presumption that some cases are going to make it into Federal Court that Congress didn't intend.

But it's a balancing that's inherent in the notion of federalism.

There is a risk that, by not reviewing clear statements by the California State Court, that cases get in that shouldn't.

A case could not have been properly filed, and the State Court didn't find it.

But, in Saffold and in Pace, this Court announced the principle that once the State Court decides, that's the end of the matter.

And I guess, in summation, what I suggest is that atmospherically this case presents a difficult problem.

The Ninth Circuit is involved.

There is a five four decision in Saffold.

We recognize those things.

However, there is no easy solution.

The Ninth Circuit has adopted a rule that balances the very interest in federalism that the tolling provision was intended to preserve, and there's no suggestion that some corresponding Federal interest is compromised.

And, in fact, if the Federal Courts are required to review these cases, they'll be required to do it in 60 days, in 70 days, in 80 days, and, if they make a mistake, and they find a case to be untimely that the California Court didn't, will deprive first Federal habeas, one Congress didn't intend.

That's fundamentally contrary to the purpose of AEDPA.

Chief Justice Roberts: Thank you--

Mr. Stris: Thank you.

Rebuttal of Catherine Baker Chatman

Chief Justice Roberts: --Mr. Stris.

Ms. Chatman, you have 4 minutes remaining.

Mr. Chatman: Thank you.

Of course there's a Federal interest at stake here.

It's the Federal interest in the Federal Courts not having to deal with stale habeas claims in Federal Court.

One thing I'd like to address is the capital case presumption, which is now... excuse me... 180 days.

It's been changed from 90 days.

That presumption is for... from the filing of the reply brief to filing an initial petition in California Court.

That is, your first habeas petition.

They... you only get presumed timely for 180 days.

Here, we're talking about noncapital cases going just from... taking claims, that have already been presented in one petition, to the next level.

So, in those--

Justice Breyer: Well, 180 days from what?

Mr. Chatman: --From the filing of the... the final due date of the filing of the reply brief--

Justice Breyer: Well, I mean, you file--

Mr. Chatman: --in the direct appeal.

Justice Breyer: --the reply brief in the lower court.

Maybe the judge will take 4 months to decide it.

What's the relation?

I don't understand that.

Or maybe it'll take--

Mr. Chatman: I--

Justice Breyer: --2 days--

Mr. Chatman: --I think--

Justice Breyer: --to decide.

Mr. Chatman: --I think they... I think they date it from the filing of the reply brief because--

Justice Breyer: Why?

What would the theory be?

I don't understand that.

Mr. Chatman: --Because they like to see these claims presented along with the appeal to be... so that they can possibly bring them together and decide habeas claims in light of the record on appeal.

So, I think that's why they date it from filing of the reply briefs.

Justice Breyer: So, a judge... you file it. On day... what... you file it on April 1st, and then the judge decides it in August.

Or September.

And now it's only 3 days before the 6 months... you have to file your appeal, like, in 3 days.

That wouldn't make sense.

And the Congress would not--

Mr. Chatman: Well, you're not... you're generally not supposed to be waiting.

I mean, you were talking about claims such as--

Justice Breyer: --You can't--

Mr. Chatman: --ineffective--

Justice Breyer: --file an--

Mr. Chatman: --assistance--

Justice Breyer: --appeal before... oh, maybe you can in California.

You're going to file the appeal before the lower court decides it?

Mr. Chatman: --Well, if we're talking about capital cases here, they are... they are filing their appeals directly in the California Supreme Court; similarly, with their habeas petitions.

Justice Breyer: Even... or even before they get a lower court decision.

Mr. Chatman: There would be no lower court decision.

Justice Breyer: They don't, at all.

Mr. Chatman: No.

Justice Breyer: In other--

Mr. Chatman: No, no, no.

Justice Breyer: --they don't, at all.

Mr. Chatman: No, they go--

Justice Breyer: Oh.

Mr. Chatman: --straight to California Supreme Court.

Which brings up one point, which is that the problem that we're looking at here in deciding timeliness will not arise in capital cases.

We will not have that problem, because capital cases go straight to the California Supreme Court.

There are not going to be intervals between the courts to deal with.

So, that simplifies, I think, the problem a little bit.

The other thing I'd like to address is the argument that a State Court is saying something with these summary orders.

I strongly disagree with that.

They are absolutely saying nothing.

This Court said in Ylst that the essence of an unexplained order is that it says nothing.

It does not say, "This is a timely petition".

Chief Justice Roberts: Well, the ones that would cite a case that threw out the petition because it was untimely... and we were told there were over a thousand of those every year... that would be saying something, wouldn't it?

Mr. Chatman: That is... in the California Supreme Court, you will find that sometimes, that they will indicate untimeliness by a case citation; hardly ever in the lower appellate court.

And I would also disagree with the characterization of delay being a problem going from the lower appellate court to the California Supreme Court.

We see it at both levels.

And I would also disagree that this shouldn't be a problem because these Petitioners have no incentive to delay.

That may be the case, that they don't have an incentive to delay, but they do, in fact, sleep on their rights, as--

Justice Breyer: How often--

Mr. Chatman: --Chavis did.

Justice Breyer: --You, as the Attorney General, what period of time after the District Courts made a decision, and now... they've now filed their claim in the Court of Appeals... how long is it before you say it's untimely?

Mr. Chatman: We would... we would say anything over 60 days.

Yes, Your Honor.

I see my time is up.

Thank you.

Chief Justice Roberts: Thank you, Ms. Chatman.

The case is submitted.

Attribution:

The Oyez Project

Featured:

Mayle v. Felix - Oral Argument

Fri, 09 Jan 2009 14:49:04 +0000

Case:

Mayle v. Felix

Media File:

04-563_20050419-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Matthew K.M. Chan

Chief Justice Rehnquist: We'll hear argument next in Deneice A. Mayle v. Jacoby Lee Felix.

Mr. Chan.

Mr. Chan: Mr. Chief Justice, and may it please the Court:

In 1996, Congress made an important change to the habeas corpus proceedings by enacting a one-year statute-of-limitations period.

This Court is now asked to consider, for the first time, how the relation back doctrine under Federal Rule of Civil Procedure 15(c)(2) is to be applied in the habeas context.

The Warden rule for relation back is that the conduct transaction occurrence set forth in the initial petition is the core of operative facts to support the constitutional violations alleged.

This rule is far superior to the Ninth Circuit's rule, which a majority of Circuits have determined effectively nullifies AEDPA's one-year statute of limitations.

Justice Kennedy: Well, of course, I take it the issue doesn't even arise unless the amendment is accepted under 15(a).

Mr. Chan: That's correct, Your Honor.

Justice Kennedy: And if there's been lack of diligence, et cetera, and... or some prejudice to the State in the delay of the amendment, the Court just won't accept the amendment.

Mr. Chan: I should clarify that--

Justice Kennedy: Or am I wrong about that?

Mr. Chan: --that in Civil Rule 15(a), the Court has discretion and grants... needs to grant leave to amend after a responsive pleading has been filed.

However, a Petitioner gets to file a responsive pleading... excuse me, an amended petition, as a matter of right, before a responsive pleading is filed.

Justice O'Connor: Well, it was filed before a responsive pleading--

Mr. Chan: In this case--

Justice O'Connor: --was filed--

Mr. Chan: --Your Honor.

Justice O'Connor: --in this case.

Justice Kennedy: How long does it usually take to file a responsive pleading?

Mr. Chan: It depends, Your Honor.

It varies with... case to case.

In a lot of pro se--

Justice O'Connor: But the State has a certain amount of flexibility in deciding when to respond, does it not?

Mr. Chan: --Well, Your Honor, the rule does not require the State to respond to petition until ordered by the District Court.

And to get back to the question of Rule 15(a), even after a responsive pleading has been filed, Rule 15(a) does not serve the same purposes as Rule 15(c).

The statute of limitations is strict defense, which is meant to apply whether the filing is a day late or a year late, whether there is prejudice, or whether there is dilatory motive.

To ameliorate the harsh effects of the statute of limitations, Rule 15(c)(2) provides an exception to the statute of limitations, but that exception is limited to the parameters of Rule 15(c)(2), itself.

So when the Court is provided with a untimely claim, it determines whether or not that claim is time-barred, pursuant to 15(c)(2).

Justice Kennedy: Well, just before we leave 15(a), let's assume that we do not accept your position in this case and there's potential for a gaping hole in AEDPA.

Does the State have some ability to protect itself by filing a responsive pleading and cutting off the amendment, or must it do so only as it is ordered by the Court to file a response?

Mr. Chan: For pro--

Justice Kennedy: Do you see what I'm asking--

Mr. Chan: --I do understand, Your Honor.

And for pro se petitions, without counsel, the State is not even aware of the existence of the petition until it is served by the Court.

And that occurs after the Court has made a determination as to whether or not a responsive pleading is required.

It can happen that a Petitioner will be able to amend his petition after the statute of limitations has already expired, and we would not even know of that until after everything had been done.

Justice Souter: But you... you have--

Justice Scalia: No, please, go ahead.

Justice Souter: --I was going to say, if... on the scenario that you have raised, in which you don't even know that the petition has been filed, because the... you don't... the Court hasn't called for a response, the whole rationale behind the narrow reading is absent, as I understand it, because you point out that the rationale for the narrow reading is that the first pleadings put you on notice as to the case that you have to meet.

And you shouldn't then have to be given an entirely new case to meet after you've been put on notice and taken whatever preliminary steps you've taken.

But in the scenario that you're talking about, you have not been put on notice, because you don't even know there is a petition there yet.

You have not been led to prepare a case which has now changed.

So it seems to me that your rationale does not apply in the case in which you do not yet have notice, and, hence, have not filed a response, for that reason.

Mr. Chan: But even in that scenario, we are still prejudiced by the fact that now we have to address additional claims that would otherwise be time-barred.

We do not get a chance to--

Justice Souter: No, but that... the problem with that is that a... the whole point of a relation-back rule is to get around the time bar.

That's why you have them.

And I thought your argument was,

"Well, you shouldn't allow them to get around this time bar, because we have been put on notice, we have begun to prepare our case, and we should not then be presented with an entirely new case. "

And so, that's why, it seems to me, your preparation point, in effect, is trying to limit a rule, the whole purpose of which is to get around the time bar.

If you don't have the preparation point, you don't have an argument.

Mr. Chan: --Well, I was addressing the situation in which we... in which we can answer first.

And I think that I responded, in the reply brief, that that would be an onerous burden on the State.

Justice Souter: Oh, it would be.

But, again, in the case that you're talking about, the very value that you're arguing for... i.e.,

"We ought to be able to rely on the notice that we have given. "

--is an argument which hasn't arisen yet, because there's no factual basis to make it.

Mr. Chan: Well, that situation would occur not as frequently as the situation in which we face an amendment after we have notice, Your Honor.

Justice Scalia: Mr. Chan, there is really no way for the State entirely to protect itself by... even by filing an answer immediately.

That would protect it against the automatic acceptance of an amendment, but it wouldn't protect it against the District Judge's ability to grant an amendment after the response.

Mr. Chan: That's right, Your Honor.

Justice Scalia: There's no way to get any protection against that, no matter how promptly you respond.

Mr. Chan: That's absolutely correct.

And Congress could not have intended its statute-of-limitations rule to be... to have its effectiveness dependent upon the Court exercise of discretion under Rule 15(a).

Justice Ginsburg: The discretion--

Justice Scalia: Why--

Mr. Chan: Liberally granted amendments.

Justice Ginsburg: --The discretion under 15(a), at least in the general run of civil proceedings, that is to be liberally exercised in favor of the pleaders, so it's a different... the 15(c) relation-back test is quite different from the general attitude to pleading amendments,

"Well, we'll let the Plaintiff. "

or, here, the Petitioner,

"make the pleading alteration, and then it will be there, and the Court will make a determination of whether the pleading is good or not. "

But, at the 15(a) threshold, it's not much... it's not much of a screening device, is it?

Mr. Chan: No, Your Honor.

The better screening device is in Rule 15(c)(2).

As mentioned, Rule 15(c)(2) is the provision that determines whether or not a claim is time-barred.

And 15(a), then, can determine whether or not the claim can be amended if it is not time-barred.

Chief Justice Rehnquist: Mr. Chan, do you think the Rules of Civil Procedure should be applied in habeas cases after AEDPA the same way they are in civil... other civil litigation?

Mr. Chan: If the Court is referring to Rule 15(c)(2), our argument is that Rule 15(c)(2) is not a rule of automatic relation back, in civil terms, in civil cases; and, therefore, should not be applied as a rule of automatic relation back in habeas cases.

Chief Justice Rehnquist: But what if we were to determine that in regular civil litigation it is relatively automatic?

What would your position be with respect to habeas cases after AEDPA?

Mr. Chan: Well, my argument would be that the habeas Rule 11 provides that, to the... to the extent that the civil rules are not inconsistent with the federal habeas provisions and rule, that they may be applied.

And I think that Rule 11 compels a reading that if you have one application that is inconsistent AEDPA's provisions and the framework of habeas corpus, and another interpretation that is not inconsistent, then you must go with the interpretation that is consistent with AEDPA.

Justice Scalia: --But you have more than Rule 11; you have Section 2244, which says that an application for habeas corpus, quote,

"may be amended as provided in the rules of procedure applicable to civil actions. "

Mr. Chan: And that--

Justice Scalia: So, I don't think it's even a close question whether the rules of procedure for amendment in civil actions apply.

Mr. Chan: --There's no question that... we are not questioning that Rule 15(c)(2) applied to habeas corpus, but Section 2242 does not give any guidance as to how 15(c)(2) should be interpreted.

And I believe that guidance comes from Rule 11.

Justice Stevens: Mr. Chan, can I ask you a question, based on your experience?

I'm sure you've had a lot of experience in this area.

This particular claim was about six months beyond the statute of limitations when he asked to relate back.

It would seem to me that that would normally be the case, something about that amount of time would be an issue, because it takes time to process these, and they had to get counsel appointed.

And counsel comes in and wants to amend the petition, usually, I suppose, in a pro se petition.

Is it... would I be correct in assuming that normally in cases of this kind we're talking about a delay of only a few months?

Mr. Chan: For pro se petitions who have been assigned counsel, Your Honor?

Justice Stevens: Well, no, normally... the issue of whether or not there should be... the petition may have the benefit of the relation back normally is... involves a delay of not more than, say, five or six months, in a normal case.

Mr. Chan: I don't have any statistics on that, Your Honor.

But even if it were only five or six months, that would--

Justice Stevens: You still lose the benefit of the statute.

You lose an important right.

But I'm just wondering about how serious a problem it is.

Mr. Chan: --It can be a more serious problem in capital litigation, where you're dealing with many more claims, which could be more complex, which could require exhaustion for the... before the federal review.

It just depends on the nature of the claim and the nature of the issues involved.

I think that the statistics that were cited in the Justice Department study have different dates for how long cases pend, depending on the nature of the claim, whether it be for prosecutorial misconduct, ineffective assistance, and so forth.

Justice Souter: But in the capital case, you've got a specific provision in there.

I mean, for the capital case, which is the one, I agree, you worry about most, because there's reason to delay there, Congress provided specifically for states to opt in; and when they opt in, they get the benefit of pretty rigorous time bars.

Mr. Chan: That's true, Your Honor.

Justice Souter: And so, why... I mean, isn't the answer to the capital-case problem exactly the answer that Congress gave, and, if a state does not want to opt in, then the normal amendment rules apply?

Mr. Chan: Chapter 154 provisions do set forth a fast track for capital cases if the State can establish certain appointment procedures for counsel.

However, it did not speak to the interpretation of Rule 15(c)(2), and Congress could not have intended that the statute of limitations not apply to Chapter 153 simply because of Chapter 154.

Justice Ginsburg: What is your definition of the test under 15(c)(2)?

I mean, on the one side, the argument is... Felix's argument is, it's the entire trial episode, right?

Mr. Chan: That's correct, Your Honor.

Justice Ginsburg: And is yours that every single objection that might be made in this entire trial record, every one, is a separate transaction or occurrence, for purposes of 15(c)?

Mr. Chan: For purpose of 15(c)(2), our interpretation is that the kind of transaction occurrence is that core of operative facts that support the constitutional claims.

That means that the objections... it is not necessarily true that one objection claim would not relate back to a second objection claim.

It just depends upon whether they're closely related.

In this case, the claims are not closely related.

You have a claim made of confrontation... excuse me... confrontation clause, by the admission of Williams' videotaped evidence; and then you have the admission of evidence of a coerced confession statement.

However, it takes an entirely different set of facts to establish that new claim.

Justice Kennedy: --The successive petition rules, or the rules prohibiting successive petition, seem to treat the entire attack as one... as one legal theory, as one case.

And it seems to me to be in... somewhat intentioned for that, for you to break it down the way you want to under Rule 15(c).

Mr. Chan: I think that the Respondent made a similar argument, based on a res judicata claim, and it was noted in the treatises that were cited that you have different intents behind res judicata and the relation-back doctrine, and its do not apply that way.

I'd like to reserve the remainder of my time.

Argument of Lisa Schiavo Blatt

Chief Justice Rehnquist: Very well, Mr. Chan.

Ms. Blatt, we'll hear from you.

Ms Blatt: Thank you, Mr. Chief Justice, and may it please the Court:

The relevant conduct, transaction or occurrence in the habeas context is the set of facts that are asserted in support of the particular grounds for relief under habeas Rule 2.

That reference point best preserves Congress' intent under AEDPA to accelerate the filing and disposition of habeas proceedings.

Justice Ginsburg: Are you, Ms. Blatt, taking the position that that is a tighter test than would apply ordinarily to the run of civil cases under 15(c)?

Ms Blatt: I think, Justice Ginsburg, our fundamental point is, there is no counterpart to tort or contract action, with habeas.

There is just no analog.

And that is because there's not only Rule 2, which imposes this heightened across-the-board fact pleading requirement, but it's also because those pleading rules work in tandem with all the other unique habeas rules that apply only to habeas that serve to narrow the timing and scope of habeas review.

Justice Kennedy: It's a... it's a little odd for the statute to say that the rules apply; and then we look to the rules, but we interpret it differently.

I certainly see the common sense of your position, but I'm just having a problem with 15(c)(2).

Ms Blatt: Yeah, I just don't think it's different, both... regardless, you've got to come the case and figure out what is the relevant-conduct transaction or occurrence in a habeas petition.

And there's the extreme view of viewing it as the entire trial or conviction, or there's another view as... look at it as what the habeas rules require, and that is the prisoner to identify a particular unconstitutional conduct or occurrence that gives rise to a basis for relief.

Now, under the Ninth Circuit's view, a prisoner can timely file one claim and then add any number of completely different claims after the one-year period.

For instance, a timely Batson challenge could then... after the one year, the claim could add claims of ineffective assistance of counsel, Brady violations, or coerced confession.

And to have to resolve those claims would significantly extend the limitations period beyond the one-year period.

Justice O'Connor: Well, this case isn't as extreme as that, is it?

It has to do with evidence admitted at trial.

Ms Blatt: It's... well, that's true, it takes in trial errors, but that's a lot.

Ineffective assistance of counsel is a trial error.

Coerced confession, confrontation clause, discriminatory selection in the jury... I mean, I don't know if that's a trial, or maybe pretrial... but it does take in a lot, and I don't think there's a close call that they relate to different actors, different time periods--

Justice O'Connor: Well, certainly in the civil-case context, generally, the interpretation has been pretty broad.

And I suspect if we try to narrow it a lot, we're going to have a lot of litigation about this point.

Ms Blatt: --I'm not sure about that.

This has been the rule in the majority of Circuits for five or six years now, since 1999 or 2000, and it hasn't generated a lot of problems.

And that's because, Justice O'Connor--

Justice O'Connor: Can you articulate the rule that you want?

Be as precise as you can, if you would.

Ms Blatt: --It would be the set of facts that are asserted in support of the grounds for relief in the original habeas petition.

And the reason why this hasn't generated a problem, Justice O'Connor, is that... and the way the Courts of Appeals haven't really had to identify a test... is because they're so disparate in time and type.

You have an ineffective-assistance-of-counsel claim that's timely raised, and then there's discriminatory selection of the jury.

Justice Souter: How about--

Justice Kennedy: If I sue for negligence or, in any civil action we might... we might imagine, there might be three or four ways in which the Defendant has injured me, and the Tiller case, the railroad case, tells us that it's a single action.

And do you concede this, that you're asking us to interpret this differently and more narrowly than in the civil context?

Ms Blatt: I--

Justice Kennedy: Or do you concede that?

Ms Blatt: --I concede that... it's hard to answer that, Justice Kennedy, because a habeas proceeding is not a train accident.

And there is--

Justice Kennedy: Well, it's hard for me to figure it out, too, but it seems to me that what you're saying is that we have a different rule, because this is habeas.

Ms Blatt: --In the civil context, you always have a question of, Do we let in other loan transactions in a breach of contract, or, Do we let in another pattern or practice or... of similar products?

I mean, there's line-drawing, when it comes up in the civil context, all the time, every day in District Courts.

But, Justice Kennedy, in habeas there are more than ordinary principles of finality at stake that aren't... that just aren't true in any tort or contract action.

And this Court said that in the Calderon decision.

And the reason is because of the interest in not just the prosecutor in having adequate notice--

Justice Kennedy: So to complete Justice O'Connor's... the answer to Justice O'Connor's question, you say,

"And we interpret this differently in habeas than in other cases, because of finality concerns. "

Ms Blatt: --I would be--

Justice Kennedy: You want us to interpret it differently.

Ms Blatt: --That would be totally acceptable, because of the distinct interest in not only the finality in the interest of society, and repose--

Justice Kennedy: Well, I'm sure it would be acceptable, but what's the authority for interpreting the rule two different ways, depending on the case?

Ms Blatt: --Well, it's not like there's a habeas civil proceeding that we're asking for a habeas... habeas proceeding to be different.

There is no counterpart to a tort action or a contract action where it's liberal pleading requirements under Rule 8, and every single grounds for relief in a habeas proceeding there is a requirement that the prisoner actually identify all the grounds and the particular facts in support of that, and those heightened pleading requirements focus the proceeding on that particular transaction.

Justice Souter: --Well, let me... let me ask you how that would work in this case.

The original claim is that there was a Fourth Amendment violation in admitting, you know, unlawfully seized evidence.

Later, the Petitioner wants to amend to claim ineffective assistance of counsel, because counsel totally overlooked the leading case, directly on point, on this particular evidence.

Is that arising out of the same operative set of facts, or is... or is that something different?

Clearly, the facts are not exactly the same.

Close enough?

Ms Blatt: Well, we'd look to the common core.

And I think we would argue that one is focusing on counsel's performance, and the other is on police misconduct.

But, Justice Souter--

Justice Souter: Yeah, but if that's... if that's the line you're going to draw, then it seems to me that, in effect, what you are saying is, you can't amend.

Because I can't imagine an operative set of facts that are going to be much close than... in the real world, than the... than the two sets that I gave you; and if they're not close enough, you're really arguing for a no-amendment rule.

Ms Blatt: --There's amendment all the time in the majority of Circuits that have applied the Government's test, and it comes up in two--

Justice Souter: Not if you were the judge.

Ms Blatt: --No, that's not true, Justice Souter.

Justice Souter: No, but, I mean, why--

Ms Blatt: Because--

Justice Souter: --why--

Ms Blatt: --Let me just say, on the attorney-ineffectiveness one, it's completely besides the point what the Government's view is, because the claims are completely derivative, and the prisoner gets no benefit whether he gets the amendment or not, because, in order to show procedural default, he's going to have to show attorney effectiveness, and he just doesn't get anything additional, one way or the other, and it really doesn't matter which claim he asserts first.

But the reason why amendment occurs all the time is because our rule allows the prisoner to amplify facts such that if he raises a Miranda claim or a Strickland claim, and doesn't allege custody or doesn't allege prejudice under Strickland, he can amend, after the one-year period.

And also--

Justice Souter: --So you can amend... you can amend your factual basis, as it were, but you can't amend your claims.

Ms Blatt: --No, the way you get claims, which is really the... the direct text on the rule says you can add a claim if it arises out of the same... is if the transaction relates to the... to give you an example, to an involuntary confession, you could have an amendment of a Miranda claim that arises out of that police... alleged police misconduct that culminated in the admission of the confession.

You could also have a Massiah violation that related back to a Fifth Amendment claim.

And you could have other types, too.

Justice Stevens: It seems to me that the reason for the... for defining the relation back the way the rule does is interest in fairness to the Defendant you don't want to let him be surprised; whereas, your claim, as I understand, is really based entirely on the interest in finality and repose.

Ms Blatt: Well, I think the interest of notice is part of it.

I mean, it doesn't always trigger when the State hasn't... or the Federal Government hasn't answered.

But statute of limitations are not only about fairness, in terms of preserving evidence, but the interest in repose--

Justice Stevens: No, but the definition--

Ms Blatt: --and closure.

Justice Stevens: --in the rule is really to protect the interest in fairness, because interest in repose is always the same.

Ms Blatt: Well, that... it's to preserve the statute of limitations, but if the relevant transaction is something narrower than the conviction, then the interest of repose sets in.

And, I mean, the other side has, you know, the same point... it's if you draw it out broad enough--

Justice Stevens: Well, the interest in repose is always there.

You'd always like to preserve the defense, whenever you can.

That's really what's at stake here.

Ms Blatt: --Well, I think what's at stake is Congress' intent in passing the one year.

And it's fundamentally inconsistent with that to have a prisoner timely file one claim and then potentially add an unlimited number of claims, no matter how different and... in time and--

Justice Stevens: Even if they all come in just two or three months after the statute's run.

Ms Blatt: --Well--

Justice Stevens: It's really not a big deal.

Ms Blatt: --a six-month difference is a 50-percent extension of the limitations period, which is a big deal.

And Congress wanted a--

Justice Ginsburg: And here, it was five months.

Ms Blatt: --I think it was five months.

Justice Ginsburg: Here.

Ms Blatt: It was five months.

And--

Justice Ginsburg: Are you relying, Ms. Blatt, at all on the difference between the pleading rules for civil cases, generally, and habeas, where you do have a whole set of pleading rules, separate from the habeas rules?

Ms Blatt: --May I answer?

I think we're relying on both habeas Rule 2 and the principles under AEDPA on finality.

Argument of David M. Porter

Chief Justice Rehnquist: Thank you, Ms. Blatt.

Mr. Porter, we'll hear from you.

Mr. Porter: Thank you.

Mr. Chief Justice, and may it please the Court:

I'd like to respond to the finality concern, because I think that really goes to the heart of this case.

Three weeks ago, this Court, in Rhines versus Weber, unanimously approved of the stay-and-abeyance procedure, because the Petitioner's interest in obtaining review of his federal claims outweighed the competing interests of finality and speedy resolution of the federal petition.

Now, Mr. Felix's case is even more compelling than Rhines, because, unlike the stay-and-abeyance procedure, which is just the power... the inherent power of the Court to control its docket, here we're talking about the command of Congress.

In Section 2242, of the judicial code, Congress provided, specifically, that the rules governing amendments of habeas petitions be controlled by the rules governing civil procedure.

The only rule regarding--

Justice O'Connor: Well, that's true.

I mean, we can accept that, but we still have to interpret what's a transaction or occurrence, I assume.

And is it open to us, in the habeas context, to take a narrow view of that?

Mr. Porter: --Your Honor, I believe that under this Court's decisions about how you determine what Congress did, Congress operated against a backdrop of how Rule 15(c) was applied by this Court and the lower courts.

And in 1948, when 2242 was adopted, Tiller was very recent; it was a 1945 case.

It must have been... we assume that Congress, like normal citizens, know what the law is, and they developed the rule against that backdrop.

Justice Scalia: Well, that was... that was a rule for tort cases; it wasn't a rule for habeas cases.

And, as pointed out by the Government, habeas cases are fundamentally different, in that the notice that you give to the opposing party in tort cases, ordinary civil cases, is very vague.

It's just, you know, what the event was,

"I got hit by a train. "

You don't have to say,

"Wherein, the train was negligent... or the railroad was negligent. "

or anything else; just,

"I got hit by a train. "

Whereas, with respect to habeas corpus, there are rules that require specifying all the grounds for relief available to the Petitioner, state the facts supporting each ground.

It seems to me that those different pleading requirements suggest that what is the relevant transaction or occurrence for the one is not the same as what is the relevant transaction or occurrence for the other.

Mr. Porter: That's a very good point I'd like to address, because I don't think we hit that... upon that in our briefs.

Habeas 2... habeas Rule 2 does require fact pleading, but the purpose of that is not to give notice to the other party, as the Solicitor General and the Warden suggest.

The petition is not served on the Warden in habeas cases, so they don't even get a copy of the petition; it is filed with the court.

The purpose of the fact-pleading requirement of Rule 2 is so that the District Court, under Rule 4 of habeas rules, can perform its screening function to determine whether the petition is facially valid or not.

That requires some sort of facts to be plead.

And that's in the Advisory Committee notes.

It's also the requirement of 2243 of the Judicial Code, that the District Court review the petition so that wardens are not disturbed with every pro se litigant's Petitioner and have to respond.

Chief Justice Rehnquist: Whatever the reason for it is, certainly you can interpret the rules to say that the pleading requirement being different and much more specific, the amendment process should be different.

Mr. Porter: I think that that's... Congress reasonably could have said that, and reasonably could have said that... amended 2242, for example, when it passed the Antiterrorism Act, and said,

"Generally, yes, the rules of civil procedure apply for amendments. "

but we're... there should be a narrower rule.

Chief Justice Rehnquist: But you don't need an amendment, I don't think.

If you're talking about a transaction, the question is, What is the transaction?

And in habeas it may be quite different than in other civil proceedings.

Mr. Porter: I think that the only basis for determining what "transaction" is, you have to look at the... if you... if you're right, that we should have some kind of different rule for habeas than all other civil proceedings, well, then it has to be grounded in the habeas statutes.

And if... when you look at the habeas statutes, it says,

"Confinement must be in violation of the constitutional-- "

Justice Breyer: But then--

Mr. Porter: --"laws which"--

Justice Breyer: --I mean, what's bothering me about this case is, I don't know that the Government needs to argue that there is a different rule.

As I read the lower-court decisions, what they've done is used the words "core operative fact".

Core operative facts in a tort case, where the engine of Train A runs into the caboose of Train B, is that collision.

And the decision that the front... the locomotive should have been lit, as well as the back of the caboose, seems, arguably at least, the same operative fact.

Core operative facts.

But to say that a witness, in the middle of the trial, was treated unconstitutionally seems, at least arguably, quite a different set of core operative facts from the fact that the Defendant was questioned before the trial.

Now, that seems to me related to the nature of habeas, but it still seems to me that those words, "core operative fact", the same words, work differently in the two situations.

And to adopt your approach also strikes me as running around the one-year statute of limitations.

Now, those are my concerns, and I would appreciate your addressing them.

Mr. Porter: --Well, I hope I can put those to rest.

On the first concern, I think that there are differences between a train wreck and habeas.

Most of my habeas cases are train wrecks, so I hope that's not... but I think there is a logical difference between them.

But I think when you look carefully at the case of Tiller, those really were very different facts about the head car not being lit and the rear of the locomotive not being lit.

After all, those were two separate legal claims, as well.

Justice Ginsburg: But, Mr. Porter--

Mr. Porter: The first one--

Justice Ginsburg: --all that would be required to allege, to take the four-line complaint... all that the Plaintiff would have to say in that tort case is, "The train was negligently operated", with nothing more specific than that.

And then the particulars could come out later.

Under habeas, you can't do that.

You must set out your grounds, and the... Rule 2 is very specific about that.

So, it's a very different approach to what you have to allege, going in.

Mr. Porter: --I agree, Your Honor, but you... I think you need to step back and look at the purpose for the difference in the pleading rules.

The purpose is, if the... if the reason was that you have to give specific facts to put the other side on notice, I would say that there is a compelling argument that that should be... that should inform this Court's decision about how Rule 15(c) should be read.

But it's very clear, from 2243 and from habeas Rule 4, that the purpose for requiring the facts underlying the claims is not to give notice to the other side, but to allow the District Court to perform its screening function to determine whether the... whether the petition is facially valid or not.

If it's not valid, then the Warden is not even served with the petition.

It just... the petition is simply dismissed.

Justice Scalia: Can you file... can you file a request for a more specific statement in habeas, as you can in a civil case?

Mr. Porter: Yes, under Rule 81 of the Federal Rules of Civil Procedure, and Rule 11, unless application of that rule is contrary to, or inconsistent with, the habeas statutes or rules, then it is applied.

Justice Breyer: Could we go back?

Because I'm still concerned with the fact that Claim 1, which is a claim on January 2 that police arrested the Defendant and didn't read him Miranda warnings properly; Claim 2 is a claim that, two and a half years later, the prosecutor, during the trial, made some prejudicial arguments.

Now, I think, just common sense, Do those arise out of the same core operative facts?

Absolutely not.

The facts are totally different.

The only thing that brings them together is that there was a single legal proceeding.

And, at the same time, if I adopt this approach that doesn't seem to comport with the common sense, I'm running around Congress' effort with the one-year statute.

So what is your response?

Mr. Porter: First of all, the response is that the statute... the rule does not use the term "core operative facts".

Justice Breyer: No, but every lower court that has... not every one; you know better than I... but it seems like a commonly found expression when lower courts have interpreted the Rule 15 and have looked to Tiller.

Is that true, or not true?

Mr. Porter: Not in the habeas context.

None of those--

Justice Breyer: No, of course not in the habeas context.

I'm saying that if we're trying to apply, in the habeas context, the same test that's used elsewhere in the civil law, wouldn't we use the word "core operative fact"?

Or would we?

I'm not as familiar with this as you.

What is the answer?

Mr. Porter: --I don't believe so.

I think that--

Justice Breyer: No?

Mr. Porter: --and Wright and Miller confirmed this, that actually courts have tried to develop different tests: Is it the same evidence that they're going to use?

Is it a core of operative facts?

And, in the end, they say there's no better test than the one set forth in the rule, and that is conduct, transaction, or occurrence.

Justice Breyer: But, of course, we're trying to decide what is the transaction.

Mr. Porter: Right, but the reason why is that there is a body of case law that determines... that's told us what that means.

Justice Kennedy: Let's--

Mr. Porter: And Tiller tells us it means that it's the events leading up to the injury.

And so, that's how, I think, that that phrase has been interpreted, and that's what Congress adopted--

Justice Kennedy: --Let's take--

Chief Justice Rehnquist: What about... what about the case law in the lower courts that Justice Breyer referred to, dealing with the core operative facts and adopting--

Mr. Porter: --Mr. Chief Justice, I think... they don't... I'm not aware of those cases using--

Chief Justice Rehnquist: --you say let's look at all the cases that have followed Tiller, and... but apparently a lot of the courts adopting the core operative fact have developed that without full regard to Tiller.

Mr. Porter: --No, the lower courts... the most usual interpretation of Tiller that we've cited in our brief that the lower courts perform is this idea of any events leading up to the ultimate injury--

Justice O'Connor: But in the habeas context, haven't the majority of the Circuits had a more restrictive rule than the Seventh Circuit and the Ninth have espoused?

Mr. Porter: --Yes, they have.

Justice O'Connor: Yeah.

And so, I think the question is, Should we follow the majority of the Circuits?

Mr. Porter: And you should not, because what those courts failed to do is, they failed to appreciate that Congress has already spoken, in two different ways.

First, Congress adopted 2242; and when it adopted AEDPA, it did not amend 2242, and it did not amend Rule 15(c).

And, second, in death-penalty cases, which, after all, is really the only set of cases where there is an incentive to delay, Congress specifically spoke.

And in 2266(b)(3)(B) Congress said,

"Amendments to petitions shall not be permitted after answers are filed unless the Petitioner can make a showing for a second or successive petition. "

Now, this is Lindh versus Murphy all over again.

This is a case where Congress has spoken as to Chapter 154.

In Lindh versus Murphy, it said,

"That chapter will be... the amendment will be applied retroactively to cases then pending. "

They did not do anything with Chapter 153 cases.

Their negative implication, when Congress so specifically addresses this issue for one limited, narrow set of cases... and that really make sense in death-penalty cases, does it not?

When the State gives the death-penalty Petitioner lawyers for State post-conviction review, then all of those claims are done in state habeas, they are brought together, it fulfills the claim-gathering function of the Antiterrorism Act; and then, very logically, Congress determined,

"We should have a very, very strict restriction of amendments. "

Justice Kennedy: --Let me... let me ask you.

Take the two events in this case, and as explained by Justice Breyer, a Miranda violation in the questioning and then a problem with the confrontation clause in the trial, two years later.

Let's assume that there was a 1983 civil action for those violations, and let's assume that both are actionable.

Different cause of action.

Is that... how would... how would an amendment be treated in a civil action?

Based on most of the lower-court precedents you've been... would the amendment related back?

Mr. Porter: I don't believe so.

In civil-rights actions, there are... the constitutional rights at issue are the injury.

So one... if a person started out with saying their injury in the civil-rights action was the admission of the evidence--

Justice Kennedy: You would think no relation back, in the case I put--

Mr. Porter: --Because there... it does not relate to the same injury.

In habeas, by contrast, the injury is the custody that's in violation of the Constitution laws and treaties--

Justice Stevens: Well, the injury--

Mr. Porter: --of the United States.

Justice Stevens: --I suppose, in the... in the Miranda violation, is introducing the evidence at the time of trial.

Mr. Porter: That's correct.

Justice Stevens: That's the point.

You don't look two and a half years back just to... you decide what happened at the trial.

Mr. Porter: That's correct.

And in this--

Justice Breyer: Right.

So what about the injury?

What about that?

That the injury... the trial's over, say, six weeks... the injury takes place at the time of introduction?

Or is the injury the whole time the... the guilty verdict?

Mr. Porter: --Well, that the that's the problem with the... with the Warden's proposed test.

Are these, quote, "closely related claims"?

That is not, I suggest, a... nearly a bright-line rule that would help the District Courts in determining what is, and what is not, part of the same transaction.

So, I don't think that that's a real viable alternative.

I... again, I think it's important for the Court to go back... if it's going to create a different rule in habeas, it has to have some grounding--

Justice Breyer: Well, why doesn't the 1981... given... maybe I don't... haven't followed it correctly, but why doesn't the 1981 claim, then, relate back?

I think the injury that took place from both violations took place at the time of trial.

Mr. Porter: --Well, maybe I wasn't following the hypothetical closely enough.

Justice Breyer: Okay, I--

Mr. Porter: If--

Justice Breyer: --Forget it.

Mr. Porter: --Okay.

Well, let... if we can return to the facts of this case, I think these... we fit comfortably within the definition of Mr. Felix is asserting in this habeas petition are trial rights.

Under this Court's decision in Chavez versus Martinez, in this Court's decision in Pennsylvania versus Ritchie, both the Fifth Amendment and the Sixth Amendment rights are trial rights.

Those statements, independently, when they were taken by the same police officer, did not violate any rights.

They only violated Mr. Felix's rights when they were introduced in the... in the prosecution's case in chief.

Chief Justice Rehnquist: But the argument as to whether it was properly done, whether the ruling was proper, is going to go back to the time of the Miranda interrogation.

Mr. Porter: I agree that those facts are relevant, but it's the operative facts that are--

Chief Justice Rehnquist: Well, why isn't that an operative fact?

Mr. Porter: --Well, it is... the operative fact... what makes it actionable is that the statements were introduced at trial.

Chief Justice Rehnquist: Yeah, but--

Mr. Porter: If those statements weren't introduced at trial--

Chief Justice Rehnquist: --Well, you've switched.

We were talking about "operative fact", and now you said "actionable fact".

Mr. Porter: --I believe those are the same principles, Your Honor.

Justice Ginsburg: Mr. Porter, if I understand you right, you are saying that, in the habeas context, the counterpart to an injury in a tort case is the unlawful detention, itself.

Am--

Mr. Porter: That's correct.

Justice Ginsburg: --I right?

Mr. Porter: Yes.

Justice Ginsburg: Okay.

So if that's the injury, could the habeas Petitioner come in with a complaint that says,

"I am being detained in violation of the Constitution. "

period,

"and I need a lawyer to spell out the details? "

Mr. Porter: The Petitioner could file such a petition.

They have been called "placeholder petitions".

But, clearly, under Rule 4 of the habeas rules, such a petition would be subject to immediate dismissal by the District Court, because it doesn't conform with habeas Rule 2, which requires that all of the claims be alleged and all of the facts be alleged.

Justice Breyer: What about the other part of what's been bothering me?

To be specific about it, it sounds like a very good system.

The system is,

"Habeas Petitioner, you file, within a year, your petition with one claim, and we'll look it over. "

says the judge,

"and if it sounds like you need a lawyer, we'll give you a lawyer, and then he'll come in with a whole lot more. "

And that's quite protective.

But suppose you said that to Congress.

They passed this thing.

And you say,

"You know, your year here, it doesn't really mean a year. "

"It means a year for this initial filing, and then what's going to happen is, they'll give him a lawyer, and he'll come back and say the interest of justice, but, really, it always, almost always, favors the Petitioner, and the State isn't that fooled, and, really, it's not a problem for them, and. "

--what would that Congress have said?

That's... that is very much disturbing me.

Mr. Porter: I think the answer to that is that statutes of limitations are ubiquitous in civil proceedings.

But just as ubiquitous is Rule 15(c) relation back.

They go hand in glove.

And Congress, in 1948, just three years after the Tiller case, when it enacts 2242, must have had on its mind that relation back goes along hand in glove with the statutes of limitation; and, not only that, but how relation back has been construed by the courts.

So I don't think it's any surprise to Congress now all of you... now all of a sudden that we say,

"Oh, you know, by the way, there's this relation back that's going to give us maybe four or five months longer than the year. "

I don't think Congress is at all surprised by that.

And Congress just adopted new rules of habeas proceedings, in 2004; didn't amend Rule 15(c), didn't provide another rule in habeas, didn't amend 2242.

And, as far as the potentials for abuse here, the Seventh Circuit's... Judge Easterbrook's decision for the Seventh Circuit in the Ellzey case has been on the... on the books for more than two years now.

And I would suggest that if the parade of horribles that the Warden has suggested, about year-long delays and all of these potential abuses, in fact, are allowed by the rule that we seek here, that the Warden or the United States would have come to this Court and said,

"Look, here are the abuses. "

"They are happening right now. "

Well, in fact, Ellzey's been cited twice in all... in these years, by the District Court, to allow relation back.

Mr. Felix's case has not been cited at all in a public case.

So, I think that the parade of horribles is theoretical and not practical.

As Justice Kennedy pointed out, you have Rule 15(a) as a backstop.

And once the answer is filed, that really cuts off any right to file an amendment as a matter of right.

Then--

Justice Ginsburg: But I think that, first of all, the amendment may be made before there is a defensive plea.

As Mr. Chan pointed out, the Warden doesn't even get the petition until it's been screened by the Court.

The other is the understanding, on the civil side, of Rule 15(a).

It's a very liberal pleading rule.

The threshold for granting permission to amend a pleading under 15(a) is very easy to pass.

Mr. Porter: --In Foman versus Davis, this Court responded to that concern and said that District Courts have ample authority under 15(a) to deny amendments to petitions... or amendments to initial pleadings.

It said, for bad-faith or dilatory tactics, but then said even undue delay... so you don't even require a showing of bad faith... for prejudice to the other side.

So all of the concerns that the Warden has raised are specifically identified by this Court to give the District Court the right to deny an amendment to the petition.

And so, I believe that those powers in the District Court are very ample, indeed.

Plus, we have... the states have their own ability to protect themselves.

As one of Your Honors mentioned, we have 2266.

If the... if the states opt in, they get the protections of 2266.

States have their own mechanisms.

All but six states in the Union have statutes of limitations, or very firm laches doctrines, that will prevent the elongated delays that the Warden is worried about in this case.

And as far as the notice provision, Justice Breyer announced the unanimous opinion for the Court this morning, in Durachem, and said,

"It doesn't take much to give the defendant fair notice. "

Now, I'd like to leave the Court with the judicial aphorism that wisdom often never comes at all; it should not be rejected merely for coming late.

We ask this Court to affirm the decision of the Circuit Court.

If there are no more questions--

Rebuttal of Matthew K.M. Chan

Chief Justice Rehnquist: Thank you, Mr. Porter.

Mr. Chan, you have four minutes remaining.

Mr. Chan: Mr. Felix assumes that Congress knew about the Tiller case, and assumed that Congress would know that Tiller would be interpreted in a way as to allow relation back in a situation such as this.

However, as pointed out, Tiller is not a habeas case.

Rule 15(c)(2) did not even have any application to habeas cases at the time, until it was decided.

Also, I wanted to respond to Justice Souter's earlier question about examples of relation back in habeas corpus cases.

And I've cited two examples on page 27 of the Warden's brief.

Unless there's any other questions, I have no more rebuttal.

Chief Justice Rehnquist: Thank you, Mr. Chan.

The case is submitted.

Attribution:

The Oyez Project

Featured:

Dodd v. United States - Oral Argument

Fri, 09 Jan 2009 14:49:02 +0000

Case:

Dodd v. United States

Media File:

04-5286_20050322-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Janice L. Bergmann

Chief Justice Rehnquist: We'll hear argument next in No. 04-5286, Michael Dodd v. United States.

Ms. Bergmann.

Mr. Bergmann: Good morning.

Mr. Chief Justice, and may it please the Court:

The Court today is presented with two strikingly different interpretations of when the 1-year period of limitation found in paragraph 6(3) of 28 U.S.C., section 2255 begins to run.

If paragraph 6(3) is read in a manner that is consistent with both Congress' use of verb tense and this Court's decision in Tyler v. Cain, then the Government's interpretation of when the 1-year period begins to run is absurd because it reduces paragraph 6(3) to a near nullity.

This is so because, as even the Government admits, retroactivity decisions almost always come more than a year after a decision of this Court initially recognizing a right.

Chief Justice Rehnquist: When you say it's a nullity, what you really mean is it allows for very... very little relief.

Mr. Bergmann: That's correct, Your Honor.

Very few cases would... would have a retroactivity decision within a year of initial recognition.

Chief Justice Rehnquist: And why is that an argument in your favor?

Mr. Bergmann: The... it would... the argument is in my favor, Your Honor, because this Court should not read acts of Congress in a manner that would render them absurd.

Chief Justice Rehnquist: Well, to say that it doesn't grant as much relief as it might have doesn't render the statute absurd.

Mr. Bergmann: Well, in... in this case, Your Honor, it does in two ways.

It does because the relief that it would allow has only occurred, in my estimation, once in the post-Teague world since 1989 when Teague v. Lane was decided, and the only other instance would be when this Court would find a right is both... initially recognize a right and find that right retroactive in the same case, which in my opinion had--

Justice O'Connor: Well, we've had very few instances in recent years I think where this Court has found some right to be retroactive.

Mr. Bergmann: --That's correct, Your Honor.

Justice O'Connor: So it just doesn't happen very often to begin with.

Mr. Bergmann: That's correct, Your Honor.

Justice O'Connor: And it would be further limited if the Government's position is adopted here.

Mr. Bergmann: That's correct, Your Honor.

It would basically be--

Justice O'Connor: But it doesn't happen anyway--

Mr. Bergmann: --It... it does not--

Justice O'Connor: --very often.

Mr. Bergmann: --It does not happen very often, Your Honor, but there have been several instances.

The situation in Bousley where the Court found that the rights in Bailey applied retroactively.

I think most people would consider the Court's recent decision in Atkins v. Virginia would apply retroactively in light of this Court's earlier decision in Penry v. Lynaugh.

So it does, indeed, happen and because it happens and because the rights involved in those types cases are so important--

Justice O'Connor: How... how do we read this statute concerning what court may find the retroactivity?

It's not limited, I assume, under either your view or the Government's to a finding by this Court, a determination that it's retroactive.

Mr. Bergmann: --That's... that's correct, Your Honor.

The parties agree that a lower court can make the retroactivity decision as well, and that's because of--

Justice O'Connor: And it could be a court in another circuit presumably if you're in the Federal system.

Mr. Bergmann: --Well, Your Honor, I would argue that it would have to be a court in the... in the circuit in which the prisoner would be filing the 2255 motion because that--

Justice Souter: Why?

Justice O'Connor: Why?

Mr. Bergmann: --Because that court would have jurisdiction over the proceedings in his case and it would be an adequate way of providing notice to that litigant.

It... a decision of another--

Justice O'Connor: Well, I guess a litigant can read decisions from other courts, as a lawyer can.

Mr. Bergmann: --That's correct, Your Honor, but they would have no precedential effect in his case.

Justice Souter: Why... why shouldn't the litigant be put on notice by a district court decision?

Let's assume it's in his own circuit.

Mr. Bergmann: Well, Your Honor, a district court decision would have no precedential value with respect to... would not bind other district courts in that district and therefore not bind other litigants.

Justice Souter: Well--

Justice O'Connor: But there's... there's just nothing in the statute that says what level court it has to be.

Mr. Bergmann: Well, actually, Your Honor, the statute does say that the ruling would have to be made retroactively applicable to cases on collateral review.

It does not say a case.

And a decision of a district court would make that retroactivity applicable only to one case not to cases.

Chief Justice Rehnquist: Well, but that may be just a generic use of the term cases.

Mr. Bergmann: Well, it could be, Your Honor, but I... Congress included the language.

I think this Court could give meaning to it by interpreting the statute to mean that you would be looking at a decision of the court of appeals rather than a decision from a district court.

Justice Scalia: Of course, if... if you said a district court, one district judge could... could trigger the thing for the whole country.

That--

Mr. Bergmann: It would be very complicated, Your Honor, given the fact that district courts often issue rulings in unpublished decisions as well.

Justice Scalia: --Yes.

Justice Breyer: So look at the trouble we get into when we take your interpretation.

Suppose we take the Government's interpretation and think only of first habeas.

Leave second habeas out of it for a moment.

But if it were only first habeas and those were all the habeases in the world, wouldn't theirs be better?

Every prisoner would know that when you get the right, you file.

Okay, no problem.

And you're going to win if, and only if, you get a court to say it was retroactive.

So that's fine.

We all know.

All the prisoners know we've got to file within a year.

It would cause no problem if there were only first habeases.

Mr. Bergmann: If there were only first habeas, Your Honor, and if the lower courts always made the correct retroactivity--

Justice Breyer: No.

They sometimes don't, but then if they don't, you appeal, just like anything else.

And you might lose and you might not get your case taken in the Supreme Court.

That's always true for every litigant.

Mr. Bergmann: --That's--

Justice Breyer: So... so that's a problem.

Is there any other problem?

Mr. Bergmann: --Well, Your Honor, there is also a problem which the Government actually concedes--

Justice Breyer: What?

Mr. Bergmann: --which is if you read the statutory language, the second clause as being stated in the past tense, and the initial... and the statute of limitations that begins to run with initial recognition, it... it doesn't respect Congress' intent to provide a 1-year limitation period.

Justice Breyer: Well, but that's... that's linguistic.

I'm... I'm looking for practical problems for prisoners, which was your initial argument.

And in respect to a practical problem for a prisoner, I couldn't think of one, and that's why I'm asking.

In respect to first habeases.

Mr. Bergmann: With respect to first habeases.

Justice Breyer: All right.

Then if your only problem is second habeas, there I'd agree with you.

There's a big problem.

But it says here the date on which the right asserted was initially recognized.

Now, I guess a person who's filed a habeas doesn't have a right until the Supreme Court has made the... the rule retroactive.

And therefore, until the Supreme Court makes it retroactive, there was no right recognized for a second habeas person.

And therefore, for that case it does begin to run when the Supreme Court says it's retroactive because prior to that he had no right--

Mr. Bergmann: Well, Your Honor--

Justice Breyer: --given... given paragraph 8.

Mr. Bergmann: --The... the same would be true though, Your Honor, then for initial motions that there would be no right available unless a court at some point had held the right applied retroactively to collateral cases because under Teague v. Lane, there is no right to collateral relief simply based on the decision of this Court unless that decision has also been held retroactively applicable.

Justice Breyer: Well, it's all... the word right in (3) quite plainly doesn't cover the last six words of the... of the sentence.

Well, whether the word right... I'm trying to fix it up.

I'm trying to figure out--

Mr. Bergmann: Yes, I understand that.

Justice Breyer: --how do we get to that conclusion.

Now, it seems to me what you've done is say either use my ad hoc mechanism, or let there be chaos, or we take your approach which produces the kind of chaos we've just been discussing.

Mr. Bergmann: Well, Your Honor, I agree with... that... that this is not the best drafted statute that Congress has ever come up with, but I think that respecting Congress' use of verb tense and this Court's decision in Tyler v. Cain, to read paragraph 8(2) and paragraph 6(3) together, that... that it's important that all three of the prerequisites in the statute have been met before the limitation period begins to run.

Otherwise--

Justice Ginsburg: Why... why is that important, given what this petitioner did himself?

He didn't wait for there to be a retroactivity decision to file the 2255 motion.

He filed the 2255 motion before the Ross case was decided.

Isn't that right?

Mr. Bergmann: --That's correct, Your Honor.

Justice Ginsburg: So perfectly... the... the prisoner is perfectly able to file the 2255 motion after the first cause is satisfied, the date on which the right asserted was initially recognized.

This movant was too late, if you measured the year from that right but he wasn't... he wasn't waiting for any retroactivity decision.

He filed before the retroactivity case.

Mr. Bergmann: That's correct, Your Honor.

He was early under our interpretation--

Justice Ginsburg: So on your view of it, his complaint, when it was filed, should have been dismissed as not ripe because he didn't have the final element--

Mr. Bergmann: --That's--

Justice Ginsburg: --that is, the retroactivity?

Mr. Bergmann: --That's correct, Your Honor.

At the time he filed, there had not been a retroactivity decision on which he could rely.

During the course of litigation in the district court, the Eleventh Circuit decided the Ross case, and at that point, his right to relief became ripe and the... and he then had a window open under paragraph 6(3), such as he could file timely.

Justice Souter: --Of course, if we're... if... if admittedly, as Justice Breyer said, we're trying to figure out some way to make this work in circumstances in which it's... it's never going to work smoothly, I suppose one answer would be to take the Government's position and say you've... your... your year runs from the moment the right is recognized, but to the... to the extent that there is a retroactivity question, a... a court should simply stay the proceeding, hold it in abeyance to see whether, particularly in... in second habeas where you have the... the second petition where you have the problem, to see whether some court will, in fact, recognize retroactivity or whether the... your circuit will recognize retroactivity.

Then if it does, then you can go forward.

Mr. Bergmann: Well, the problem with that, Your Honor, is that it... it encourages, as the Government's rule in general does... encourages numerous frivolous filings.

Justice Souter: Oh, there's no question there's a Rube Goldberg character of the whole thing, I... I realize.

But... but that would be a way of... of solving the second habeas problem and still accepting the Government's position on the... on the date at which the... the 1 year for filing starts.

Mr. Bergmann: Well, a procedure that the Seventh Circuit has adopted... and the Seventh Circuit agrees with... with Mr. Dodd's interpretation of the statute that it begins to run with the retroactivity decision.

Their solution for these premature filings is to review the case on the merits, and if they feel that the motion would lose on the merits, they dismiss it with prejudice, and if they feel there's some viable claim being stated, then they dismiss it without prejudice to refiling at a later time.

That's--

Justice O'Connor: It would... it would potentially violate the 1-year limit.

That won't necessarily work.

Justice Scalia: Crazy.

Mr. Bergmann: --Well--

Justice O'Connor: I mean, it's a very odd statute.

Mr. Bergmann: --Yes, it is, Your Honor.

It's very odd.

Justice Scalia: You... you don't know who's responsible for writing this, do you?

[Laughter]

Mr. Bergmann: Actually my understanding is that much of it was written by the Attorney General in California at the time.

Justice Ginsburg: Can... do you understand the... the difference between what is a right initially recognized and then what is a right newly recognized?

The statute is supposed three requirements: initially recognized, newly recognized, and made retroactive.

Mr. Bergmann: Yes, Your Honor.

My understanding of when a right is newly recognized is... is when it is new in the sense that this Court has adopted under Teague v. Lane, that it's not dictated by prior precedent.

A right can be initially recognized by this Court but not new in the Teague sense.

Justice Breyer: Actually Justice Souter's approach might work here because you... you... all the second habeases file immediately.

Now, the Seventh Circuit, you say, well, gets to those second habeases right away, and it says dismissed.

Very well.

When they say dismissed, then they ask for cert. And when they ask for cert, we take or we don't.

If we don't, then they're out of luck.

And if we take it, people would hold all the other cases waiting to see what we decide.

So they wouldn't lose out in any case where we really were going to make it collaterally... applicable on collateral review.

Mr. Bergmann: But then, Your Honor, you run up against your decision in Tyler v. Cain, and that was the circumstance of the litigant in Tyler v. Cain.

No... this Court had not previously determined that the right at issue in Tyler v. Cain was retroactively applicable, and under the second or successive statute that... and the way the Court read this, the Court said that this Court could not determine the retroactivity of, I believe it was, Cage v. Louisiana in that very case because it was contrary to the language in the statute.

Justice Breyer: I mean, I'm sure my dissent was correct in that case, but the--

[Laughter]

Mr. Bergmann: Yes, Your Honor.

Justice Breyer: The... the... still... it still would work because the first case has come down.

Okay?

The first case has come down.

Now all the prisoners read about these cases, and even if they've already filed a habeas, they go file another.

And the Seventh Circuit, you say, then looks at that first one that they get to, and they say, dismissed.

Oh, you're saying that then he comes he here and we say the reason you lose is not because you're wrong.

The reason you lose is because you're not yet ripe.

Mr. Bergmann: Yes, that's correct, Your Honor.

What Congress appears to have intended in this... in this statute, as... as much as anyone can tell, is that retroactivity decisions be... be litigated in the cases that are brought under paragraph 6(1) which is those cases that are within a... a year of when the judgment of conviction became final.

That's exactly what happened here.

And the Ross case that litigated the question of the retroactivity of Richardson, that was a case brought under paragraph 6(1).

Mr. Ross was within a year of when his judgment of conviction became final, and... and the issue of retroactivity was... was litigated straight and up in that case.

And what it appears that Congress intended was that very circumstance to happen in all cases, that the retroactivity of decisions of this Court be litigated in cases brought within a year of finality, and then once those decisions were made, then litigants under paragraph 6(3) would have the opportunity to file when a court of appeals issued a retroactivity ruling.

And then litigants under paragraph 8(2) would have a... the ability to file--

Justice Breyer: But we... we still might be able to deal with it.

That person files his petition for cert. He puts in the petition there are 4,000 prisoners who are trying to file second habeases, and if you decide retroactivity, collateral, all of them but me will be able to proceed.

But you have to have enough sense, Supreme Court, to take my case to decide if you're going to decide retroactivity, that it is and give me the benefit of the decision.

Mr. Bergmann: --Well, then, Your Honor, I guess the Court would have to... to totally reconsider its decision in Tyler v. Cain to reach that conclusion.

And I don't know what to say.

I mean, since Tyler v. Cain was enacted for... I'm sorry... decided 4 years ago, Congress has made no effort to overturn that decision, and it appears Congress believed that the Court had... had read the statute correctly in that case.

And so if you interpret the made retroactivity... made retroactively applicable language in paragraph 6(3) in the way that this Court read the language in paragraph 8(2), such that the retroactivity decision has to be made before a motion can be filed, it becomes very complicated to do that if the 1-year period begins to run within initial--

Chief Justice Rehnquist: The problem with your argument, Ms. Bergmann, seems to be addressed to the idea that Congress intended to sweep quite broadly here.

But I don't think that's the necessary inference at all.

We're dealing with a situation, as Justice O'Connor points out, where we have very rarely held that a decision is retroactive.

So it's already a very small class of cases, and the Government's view makes it an even smaller class of cases.

But that doesn't mean the statute doesn't work.

It just means it doesn't work for a lot of people who are excluded from it.

Mr. Bergmann: --Well, Your Honor, I... I agree that this involves a very small class of cases.

The problem with the Government's reading is that they say that they are narrowly constricting the statute, but the procedural mechanism that they set up allows for a vast number of cases that would never fall within the statute of limitations to be filed and requires the court to deal with each and every one of those cases in the first instance.

Whereas, my reading of statute has the benefit of allowing a... a test case to proceed.

Given the fact that there are very few number of these rights that are made retroactively applicable, it... it makes more sense in terms of judicial resources to allow there to be this situation where is... there is a test case--

Justice Ginsburg: But on your theory, there wouldn't be much in the way of resources because you say there's no ripe claim until the retroactivity decision comes down.

Why wouldn't a district judge, faced with this dilemma, simply say, well, I'll just hold this complaint until the... the court of appeals or the Supreme Court rules on retroactivity?

Mr. Bergmann: --Well, certainly the district courts would do that.

The more appropriate course of action would probably be to find the motion at that point untimely because it does not fall within any of the... it... if it is outside the initial year from finality but doesn't fall within any of the other exceptions stated in paragraph 6, then it... it would be untimely and the court could dismiss it as such.

I mean, by doing so, if the court dismisses it, it could well count as a first motion so that any motion filed thereafter would be a second or successive motion.

And this would be... preclude litigants from filing prematurely and burdening the courts with premature filings until it is clear they have a cause of action.

I mean, what's strange about the Government's reading of the statute is that they believe Congress intended for a limitations period to begin to run before the litigant had any right to relief.

No one has a right to relief in the collateral proceeding until the right at issue has been made retroactively applicable to collateral cases.

And so that this kind of disjoinder of the statute of limitations and the cause of action creates this problem where people will be... feel compelled to file protective motions.

Justice Stevens: May I ask this question?

The words, made retroactively applicable to cases on collateral review, don't have a modifier such as telling us by whom it's made retroactive.

Has any court considered what seems to me a fairly normal reading that the... the words, by the Supreme Court, should apply to that phrase as well as the preceding language?

Mr. Bergmann: Well, actually, Your Honor, every lower court to consider the language has found that the retroactivity decision need not be made by this Court, and the reason for that is the difference between the language in paragraph 6(3) and in the second or successive provision in paragraph 8(2).

In paragraph 8(2), it explicitly states that it has to be made retroactive to cases on collateral review by the Supreme Court.

Justice Stevens: It seems to me that cuts in the other direction, that when Congress thought about the entity that makes it retroactive, they thought about us.

And that's why... and that's the only language that seems to fit.

I mean, the by the Supreme Court seems to fit that concept.

Mr. Bergmann: If... if you apply--

Justice Stevens: But I guess nobody has come up with this suggestion other than this question.

Mr. Bergmann: --Well, various lower courts have considered that possibility and have latched onto the different... differences in language where paragraph 8(2) explicitly states it has to be made by the Supreme Court, but paragraph 6(3) says it does not.

And... and the court below said the same thing, and the parties agree that the retroactivity decision need not be made--

Justice O'Connor: Well, if we disagree and think it should be, I guess that would open a door down the road for people after this Court made such a determination.

Mr. Bergmann: --That's correct, Your Honor.

It would make paragraph 6(3) much more consistent with paragraph 8(2), if... if the--

Justice O'Connor: Yes.

Mr. Bergmann: --But again, it would work only if the 1-year period began to run from this Court's retroactivity decision.

If it begins to run from initial recognition, then that would turn paragraph 6(3) into an absolute nullity because I know of no case where this Court has made a retroactivity decision within a year of when it initially recognizes a right.

Justice Stevens: But that fits the language, the date on which the right was initially recognized by the Supreme Court if and only if it's been made retroactively by the Supreme Court.

It seems to me a very normal reading of the language.

Mr. Bergmann: Yes, Your Honor, that no one lese has... has agreed with thus far.

Justice Breyer: Yes, but there... it's... I'm now taken with this.

I'm jumping from one thing to another here.

But that does get rid of the problems that were initially plaguing your position because it's precise and definite.

And it also gets rid of whatever problems were produced by Tyler because a person could easily get to the Supreme Court in that rare case without his petition, if it's a first petition, being improperly filed because he's not bound by paragraph 8.

Mr. Bergmann: That's correct.

Justice Breyer: So it's a first position.

So all that he does is he files a petition.

He can file it before any court... nothing says he can't file it before a court has decided it's retroactive.

He files the petition.

He seeks cert here.

He gets us to say it's retroactive in that rare instance, and everyone else has a year from that moment.

And as far as the... the second people are concerned, they don't... the second petition people don't have to file it until a year from that moment, and they have a good claim under paragraph 8.

There's quite a lot... now... now, I'm jumping to that because it sounds like it might be good.

Mr. Bergmann: I... I'm sorry, Your Honor.

I think you may have lost me.

You would have the--

Justice Breyer: Well, don't worry about it.

[Laughter]

Mr. Bergmann: --If the Court has no other questions, I'll reserve the rest of my time.

Argument of James A. Feldman

Chief Justice Rehnquist: Thank you, Ms. Bergmann.

Mr. Feldman, we'll hear from you.

Justice O'Connor: Would you address that last suggestion first, Mr. Feldman?

Mr. Feldman: I'm not sure I completely held it in... in my mind.

Justice Breyer: It was very--

Mr. Feldman: Our basic position is--

Justice O'Connor: Well, to... to interpret as meaning only this Court could make the retroactivity determination and the 1 year wouldn't run until and unless there was a new rule and subsequently in whatever case this Court said it was retroactive.

Mr. Feldman: --I... I have two comments about that.

That was a position which actually a footnote in our brief in Tyler against Cain I think suggested, although that wasn't the issue before the Court in that case.

But since that time, this has been litigated in a number of courts of appeals and district courts, and as far as I'm aware, no court has accepted that.

And the reason they haven't--

Justice O'Connor: Well, that's true, but I assume it is, nonetheless, open for us to do so--

Mr. Feldman: --Yes.

Justice O'Connor: --if we thought it was correct.

What is your view?

Mr. Feldman: It would be, but I think we came to the conclusion that it probably wasn't because the words, by the Supreme Court, are not only present in two different places right in this paragraph 6(3), also in 8(2), also in 2244 and in 22... I think... 64.

And it does seem to be a pattern that where the Congress expected a decision by this Court in the whole series of statutes, they said, by the Supreme Court.

And it's notably missing from the phrase that says, made retroactive to cases on collateral review.

Justice Stevens: It is noticeably missing because it... it has a blank there and the words, by the Supreme Court, are the only time limitation in that whole provision after the word if.

Mr. Feldman: It... that... it... what it says... it says newly recognized by the Supreme Court and made retroactive.

It doesn't say by the Supreme Court.

That's the rationale the courts have used.

But if I could move to the--

Justice Breyer: --But if you don't... aren't... I mean, the language is open, and it's sort of like the virtue of this... suddenly it's like tinkers to Everest chance.

I mean, it seems to put everything together.

What was worrying you most about their position was it produced uncertainty, a kind of a mess.

You don't know which court you're talking about.

People would be filing things all over the place.

They'll be waiting.

That... it's a mess.

This stops that.

What's worrying them is that the second habeas person, given Tyler, could never file, not even in that... you know, not even in that... in that really unusual situation where we're going to make a collateral review.

And now, what this does is it produces the certainty, the definiteness of when your time clock begins to tick, and it eliminates all the uncertainty, et cetera, and confusion, difficulty from their position.

Mr. Feldman: --I... I think the other... the other problem that I actually am... that I think the Court should be worried about is that this statute sets one... it doesn't say anything about the date on which something is made retroactive.

It says it runs from the later of four dates and it then sets forth what those dates are.

And it says, the date on which the right asserted was initially recognized by the Supreme Court, if certain conditions are satisfied.

Now, that if clause may well raise some... it does raise, I think, some interpretative issues.

But however you interpret the if clause, that just tells you whether the petitioner can use that date on which the right was initially recognized or not.

If he can't use it, if the if clause is not satisfied, then he's... he only has to show he's timely under one of the other three provisions.

The normal one is 1 year from the date that the conviction became final.

And I think our primary submission in the case is however you construe the if clause, it can't possibly be read to... whatever interpretative problems there are there, it can't be possibly be read to alter the totally plain language that Congress--

Justice Stevens: Yes, it could because you could say what the Congress intended to say.

If the right had X, Y, and Z, it shall in that event run from that date.

Mr. Feldman: --Right.

Justice Stevens: That's implicit in it.

Mr. Feldman: And it's not--

Justice Stevens: Just like the words, by the Supreme Court--

Mr. Feldman: --It's not... it's not--

Justice Stevens: --would be implicit.

Mr. Feldman: --it doesn't.

But even then, it's not... it doesn't run from that date, and the... he's... and the... the petitioner has the... the applicant has no date on... if he's past his 1 year from the date the conviction became final, he has no date on which he can rely to make his application timely.

And our primary submission--

Justice Souter: Well, on Justice Stevens' analysis, he does not have a date until the retroactivity decision is made, and he has to sit there and wait.

But when the retroactivity decision is made, he's got his date.

Mr. Feldman: --But this statute doesn't... it's not worded the way the... the... paragraph 6 as a whole says you have the later of four dates.

It names four different things.

But subparagraph (3) doesn't say, well, the later of any of these things.

It... it tells you if the condition is satisfied then you... the question is... okay, the if condition is satisfied.

I can use paragraph (3).

What's my time limit?

And it says the date on which... 1 year from the date on which the right was initially recognized by the Supreme Court, and that's the date he has.

If the... if... if it turns out that he can't use it because the appropriate thing doesn't happen till later, then he just can't use that date.

He has three other possible dates to use under paragraph--

Justice Souter: I... I follow your linguistic... Justice Stevens follows the linguistic analysis.

I think the question that he's raising, the question I'm raising is, do we have a good reason here to doubt that the linguistic analysis is getting us to... to what Congress would have intended?

The proposed good reason or the best reason I think is that if we read it your way, then as Justice Breyer said in Tyler, as a practical matter, second habeas is... is... a second habeas petitioner is... is almost never going to... or probably, in fact, never will get the benefit of the new rule.

Well, maybe one answer to that is, so what.

The reason that cannot be dismissed, I think, that way is this.

As has been pointed out here, we do not under our rules often make a new rule retroactive, but when we do under the conditions which we impose for that, it's... it's one humdinger of a rule.

[Laughter]

And it is... it is unlikely... or at least there's a good argument that it's unlikely... that Congress would have wanted to exclude all the potential second habeas people from it, particularly because they're second habeas people because they got in in time on first habeas.

They played by the rules, and on your theory basically they're out of the game on a very important rule.

So that's the argument for saying that your linguistic analysis may not be pointing to what Congress intended.

Mr. Feldman: --Well, I... I disagree with that.

First, on second habeas, the... this Court, I think all three opinions, in Tyler against Cain recognized that there can be cases where this Court recognizes a new right and it is retroactive at the same time where it's the combination of some earlier decision that said all rules of a certain type are retroactive and then in the second--

Justice Souter: But that is--

Mr. Feldman: --the Court said we are recognizing a rule of that type.

Justice Souter: --That is a highly exceptional case, and the problem with that is... I mean, if... if we're going to... if you're going to be linguistic about it, you'd have to say, well, that really is not very sound reasoning because that is not a holding because the... you... you've got not merely to have recognized it under the statute, but you've got to have held it.

And that's... that's pretty unlikely.

Mr. Feldman: It... it says actually made retroactive, and I... all of--

Justice Souter: Well, I guess we've said you've got to do it with--

Mr. Feldman: --all three of the opinions in Tyler recognized that that sort of thing can happen, and I think that that actually is by far the most common kind of case because that's likely to be a case where the Court has said, for example, where Teague doesn't apply at all where the Court has narrowed the scope substantially of a Federal criminal statute such as in the Bailey case where... where the question was whether it has to be active use or mere possession of a firearm.

And those kinds of cases are very possibly, at least if the Court has made it clear that they're narrowing the... the Court is narrowing the conduct that was thought to be criminal in construing a criminal statute, those are the kinds of cases that are likely to arise most often.

In those kinds of cases, that is likely to be the kind of the thing the Court was talking about in Tyler against Cain.

With respect to the other class of cases, which would... the only other class of retroactive cases would be those that come within the second... what used to be called the second Teague exception for bedrock principles that have the primacy or centrality of Gideon against Wainwright.

Now, the Court has suggested... it has said that it may be doubted that any such rules remain to... to be discovered.

But if there were, I think a court of... a case of that level of centrality and primacy and importance, I think that this Court and other courts could take steps to decide whatever pending section 2255 motions they have or whatever ones could be filed by someone who still has their 1 year to go from date of finality of conviction to decide those quite quickly because that would be--

Justice Kennedy: In those cases, would the Government ever on its own motion have a defendant retried or released?

Has that ever happened?

Mr. Feldman: --I... you know, I... for instance, I don't know what the history was.

Justice Kennedy: I don't think it has.

If... let me ask you this.

If... if a decision says that what was a crime, as defined to the jury, is no longer a crime... the conduct was no longer a crime... I take it Teague doesn't necessarily apply to that, but this is still a substantive rule that's retroactive.

Is that the way it works?

Mr. Feldman: I think the... what the Court has said and clarified most recently in the Summerlin case last year is that those... Teague doesn't apply.

It's not an exception to Teague, but Teague doesn't apply because those cases are retroactive without going through a particular analysis under Teague.

Justice Kennedy: But what... what interest does the Government have in holding somebody when the conduct for which he was convicted is no longer a crime?

Mr. Feldman: The Government doesn't have any interest in doing that.

And I... I think if the Government--

Justice Kennedy: Why don't you let the guy go?

Mr. Feldman: --I would... I would recommend the Government do that if we found a case.

What actually happens, of course, in real life is there's argument about what were... what... how was the jury actually instructed.

Did the jury find the necessary fact?

Was it just harmless error because this case was tried on a theory that made it totally clear that he did commit the crime even as narrowed by this Court and those kinds of questions arising.

Justice Kennedy: Let's say he's being--

Mr. Feldman: I can't say how they would work themselves out.

Justice Kennedy: --Let's say he's being held because the Government insists that it's not retroactive and the Government is then proven wrong.

Would that let him qualify under (2) because then the... the impediment to making the motion was the fact that he thought it was not retroactive, but then... and that was Government action because that's what you insisted on.

But then that's removed.

So does... so would... does entitlement under (2) apply?

Mr. Feldman: I don't... I don't think... I don't think so because I would only think--

Justice Kennedy: I... I don't think this is going to work.

Mr. Feldman: --Yes.

I don't think the Government holding somebody pursuant to a hitherto valid judgment would be seen as an impediment to making an... a motion.

I think that would be the Government--

Justice Kennedy: Well... well, but it is because he... it hasn't been found retroactive yet and he can't file--

Mr. Feldman: --Well, but the... the defendant--

Justice Kennedy: --under your view.

Mr. Feldman: --The fact that the Government is holding him doesn't prevent him from file.

If the Government did actually prevent him from filing something, said you... we're not going to take your mail that you're trying to send to the court, I think that's the kind of thing--

Justice Kennedy: Well, you prevented him from filing effectively.

I mean--

Mr. Feldman: --I don't think--

Justice Kennedy: --the petition has to be dismissed.

Mr. Feldman: --I don't think the Government has.

I think the Government has said, go ahead and file whatever you want to file, and if you can obtain relief, then you should get it.

Justice Kennedy: Yes.

Mr. Feldman: And if the Government itself concludes that someone should be released, there are mechanisms to do that--

Justice Kennedy: That's probably right.

Mr. Feldman: --the Government could.

Justice Breyer: The language... the language is on your side, I think there's no doubt.

But it's not unambiguous.

Imagine a prison rule that says that the... after the prison board, the... the prisoner has 2 weeks to appeal to the warden from the time of the decision of the board if the prisoner has been notified.

The prisoner isn't notified for 3 weeks.

I think we'd read that to say he has 2 weeks from the time of notification.

You... you can use can if in that way.

It's not impossible.

And once I begin to think it could be open, I think, well, let's look for the most practical approach.

Mr. Feldman: I think under that... those circumstances, there may be circumstances under which equitable tolling would be appropriate in a particular case.

That's the kind of thing that also--

Justice Breyer: You... you'd say, well the language is clear... clear, but let's go... let's go on equitable tolling.

Mr. Feldman: --But I don't... I wouldn't go here on equitable tolling.

In other words, I think maybe... I don't... I can't imagine all the possible cases under 6(3).

Justice Breyer: No, no.

What you're saying is the language.

Mr. Feldman: But where the event that you're relying on for tolling would be an event that is anticipated in the statute and would be across the board and would really have nothing to do with the particular conduct of the petitioner's case, but whether someone else has gone and gotten a retroactivity ruling, I think it would be unprecedented in those circumstances to just rewrite the statute to come to a different date than what Congress had set.

Congress set the date on which the right initially was recognized by this Court.

Justice Breyer: Mr. Dreeben, could I bring you back to the... the issue?

I'm sorry.

Yes.

Can I bring you back to the issue of whether the Court that recognizes the right has to be the Supreme Court or not?

You say there are three other instances in which it is specified that it be the Supreme Court, and it's not specified here.

But does any of those other three instances involve language like this which... which has the Supreme Court mentioned immediately previously?

I mean, when I read that the first time, has been newly recognized by the Supreme Court and made retroactively applicable to cases, I mean, I think what it envisions is the... the very decision of the Supreme Court that newly recognized it made it retroactively applicable.

Is... is any of the other ones phrased this way so that the word, the Supreme Court, is immediately preceding the and made retroactively applicable?

Mr. Feldman: You know, I'd... I'd have to look at the... I can tell you where the statutes are.

One is 8(2), of course, which is right in 2255.

Justice Scalia: Right.

Mr. Feldman: The other is in 2244 which I think is worded exactly the same as this is.

The third is I think 2264, which I... I just would have to look at the specific wording of each of those.

But I think the... you know, and this--

Justice Scalia: The proximity of the reference to the Supreme Court there really--

Mr. Feldman: --But--

Justice Scalia: --when you read it the first time, you think they're talking about the Supreme Court.

Mr. Feldman: --You could also--

Justice Scalia: Has been newly recognized by the Supreme Court and made retroactively applicable.

Mr. Feldman: --You could also... you... you could, but you... and we did take that position in Tyler.

You could also read it, though, the... the presence of the word Supreme Court right before and the absence of the words, the Supreme Court, here and the presence of the Supreme Court in the first one... you could certainly draw the inference that this was not something... this part of it didn't have to be made by the Supreme Court.

And perhaps Congress was recognizing that it... it does take this Court a longer time to reach a retroactivity decision than it would take the lower courts hearing cases.

Once--

Justice Stevens: Is there anything in any of these statutes or legislative history or any... anyplace else where Congress ever thought of the possibility that some other court might make a new rule retroactive?

Mr. Feldman: --I don't think there's any statement one way or another, but I do think there are holdings.

There are holdings as... as the petitioner relies on by the Eleventh--

Justice Stevens: I think the other reading is... the assumption was... and I think it's incorrect... that we would simultaneously identify the new right and decide it is or is not retroactive.

That was the assumption I think.

Mr. Feldman: --I... I just... I think that would be unlikely because this Court's practice has certainly not since Teague and even going decades before Teague--

Justice Stevens: No. I realize it's wrong, but I think that's probably the assumption Congress made.

That's what I'm suggesting.

Mr. Feldman: --I... I guess I... I would just think it's unlikely because although this statute has some drafting... it certainly raises some drafting issues, I think they likely... that basic element of this Court's retroactivity jurisprudence, which has been true for decades, I think likely--

Justice Stevens: See, the only thing about your reading of the statute that troubles me is you're... you're reading the word only.

If it's a 1-year statute, but only if Congress... the Supreme Court has already done the next two things.

1 year is the maximum.

Mr. Feldman: --Just... I'm reading it has an if.

If is a condition.

If--

Justice Stevens: There's an only--

Mr. Feldman: --What if does is states a condition.

Justice Stevens: --It's not an if, but if that happens, then it shall be--

Mr. Feldman: Right, because Congress didn't say it.

If Congress had phrased this the way it phrased the... the 6(3) as a whole and said it shall it run from the later of three dates, the date that the Supreme Court holds it... recognizes the right or the date it holds it retroactive, that would have... that would have been--

Justice Stevens: --See, it really--

Mr. Feldman: --that would have--

Justice Stevens: --would accomplish your objective if you just struck the whole clause after the word if.

You don't really need that.

Mr. Feldman: --I... I don't think so.

I think what the clause does is it makes it clear that in 6(3), which is a... you know, intended to be a narrow exception from the... the rule of finality... that in 6(3) what Congress was doing was saying this is the only class of cases that we want this to apply to.

And if they had just said the date on which the right was initially recognized by the Supreme Court, I think there might have been some inference that they were not... they were trying to extend that beyond cases that are retroactive under Teague, or perhaps someone might have read that and said, you know, Teague is no longer applicable.

Now Congress has a new standard that it's enacted here.

And I think Congress wanted make clear... the people who drafted this... that that was not what they were trying to do.

And by saying made retroactive... if it has been newly recognized and made retroactive to cases on collateral review, what they were plainly referring to was this Court's jurisprudence under Teague so that no one would think this deadline is supposed to somehow open the door to cases that would otherwise be barred by Teague.

Justice Kennedy: Well, what courts in... in your view have to make the retroactivity finding?

The district court?

The circuit where he's... which has jurisdiction over his case?

Any circuit?

Mr. Feldman: I think every court that has addressed that question has come to the conclusion that it can be... it has to be the circuit with territorial jurisdiction over the applicant's case.

That's generally the jurisdiction of courts of appeals and the area in which their rulings are effective.

It also could be, in our view, the district court that's hearing the particular defendant's case because that's--

Justice Ginsburg: If it's not that... if it isn't the district court in that case, then you... the district court has to take this complaint and just freeze it until some other... a higher court rules on it.

Mr. Feldman: --Yes.

I don't see any... I don't think that that would be the appropriate thing to do.

I think if... if the view was that this had to... it couldn't be filed until a court with jurisdiction over the case had actually held that the right was retroactive, then I think the correct course for the district court would be to dismiss it because it's... it's not... it's not a timely petition.

At the time when it's filed, there's... it's... we're assuming 1 year past the date that the conviction became final, and there's no other provision at that point that can render it timely.

And at that point, the correct course for the district court would be just to dismiss it.

Justice Kennedy: So that if 10 other circuits have ruled on this but not his own, there's nothing he can do until somebody within the 1-year window files.

Mr. Feldman: Our view... well, that... that... if... if the... the made retroactive has to occur before he files, that would be the consequence.

But our view is it can be made retroactive in his own case, and therefore, anyone can file.

They have a 1-year window from the time when a new right is recognized, and if in their own case it's held to be retroactive, then they were timely and they may well get relief depending--

Justice Souter: --So far as first habe goes.

Mr. Feldman: --So far as first habeas goes.

Justice Souter: Second habe, he's out cold.

Mr. Feldman: I... I think that it's... I don't... second habeas is definitely a narrower window, and I think Congress intended it to be a narrower window.

But for the reasons I said, there are decisions where the Court holds... where this Court recognizes, in effect, the retroactivity of a new rule at the same time as it announces it, as the Court said in Tyler.

And there are... this Court and lower courts can act quickly on these kinds of things.

If the kind of bedrock principle with the primacy and centrality of Gideon against Wainwright came up, I think the lower courts would see we have to act very quickly on this.

I... one point of note is that Richardson itself, which the Government doesn't believe is retroactive, but that's not before the Court here... the first decision holding Richardson retroactive came down 7 months after this Court decided Richardson.

The second... and that was where no one was thinking they had to particularly rush on that.

But if this Court were to recognize a new right under... a... a new right that satisfied the second Teague exception, I think it can be expected because it would necessarily be... have a certain primacy and centrality and sweep that there would probably be cases pending in the courts of appeals, in the district courts raising that issue, and I think the courts involved, if they... this Court said, look, this is... this is the way the thing has to be understood in accordance with--

Justice Breyer: What it would do... let's take a case which I guess we... Apprendi.

I mean, you know, Apprendi, a big sort of an issue in the courts.

And... and this would put tremendous pressure on us to decide it immediately, wouldn't it?

We'd have to say immediately whether it was going to be retroactive or not retroactive because it's only likely to come along in some major, major matter like that, other than the kind Justice Kennedy said, which is another kind of problem.

I mean, I don't see a way, if we take your approach, of getting out of this tremendous pressure.

Maybe it would be a good thing.

But I don't think there's a way of getting out of it.

Mr. Feldman: --I think this Court has... has to take cases and plan its docket in accordance with a wide variety of considerations and that may be something that the Court would want to take into consideration.

Justice Breyer: Well, what do you think about the... it seems to me we've tried three approaches, each of which try to get us out of this problem of the pressure, call it.

And we have Justice Stevens' and then... but there were certain problems with Justice Souter's, which still I'm not certain might... then I had started with one that I guess the objection to it would be it's laughable.

But... but is there... is there any... I mean, you see, it's... it's reading... it's reading the word right in 6 to encompass all of the paragraph in 8.

Is there anything... I mean, it's a pretty good objection that really that just goes too far.

Mr. Feldman: I... I--

Justice Breyer: But is there any other objection?

Mr. Feldman: --I think essentially the same one, that... that they use the term right in 6 and they didn't intend that term to mean something different, whether it was a first habeas or a second habeas.

Justice Stevens: May I ask you--

Mr. Feldman: They were talking about the right that was asserted.

Justice Stevens: --May I ask you this question?

Isn't it true that under some of the other references they refer to a constitutional right?

Mr. Feldman: That's right.

That's another--

Justice Stevens: Whereas this just refers to a right and it includes statutory rights.

And, of course, the odd thing about that is that normally when we construe a statute, we say it always meant that.

It's not... it's not a new right in the sense as a right as of the date of enactment.

Mr. Feldman: --But--

Justice Stevens: So the difference between the Constitution and statutes sometimes is rather significant.

Mr. Feldman: --Yes.

In paragraph 8(2) only... only... it does require a constitutional right.

But in... in 6(3) it refers just to right.

But, as I said, that would, I think, encompass the class of cases such as Bailey where this Court interprets a Federal statute and narrows it and makes conduct that was thought to violate the statute earlier... it means that conduct no longer violates it.

Those kinds of decisions may well under... if the Court has made those points clear, if that clearly is what this Court decided, those cases may well be retroactive at the time they're announced under the rationale that all the opinions in Tyler against Cain accepted.

Justice Scalia: Mr. Feldman, is there any case in which the Supreme Court newly recognizes a right in which it does not initially recognize the right?

Mr. Feldman: I think there's sound... those seem to me to be synonymous and--

Justice Scalia: Well, they're... they're... I thought your position was newly recognized means that it... it has to be the kind of a right that would... would overcome our usual bar to... to, you know, rights that existed before.

Mr. Feldman: --That's correct.

I think initially recognizing may well be another way of saying the same thing.

Justice Scalia: Every... every newly recognized is an... is an initially recognized, although every initially recognized is not necessarily a newly recognized.

Is that it?

Mr. Feldman: I was actually thinking of it the other way around.

Justice Scalia: The other way around?

[Laughter]

Mr. Feldman: Which... but that... that... where this Court has--

Justice Scalia: You don't know who wrote this either, do you?

[Laughter]

Mr. Feldman: --No, I don't.

No, I don't.

But I think the point of the newly... in fact, if you look at... if you kind of flip it, the point of this provision can... maybe becomes a little bit clearer.

It's if... if you start with the if, if the petition is based on a right that is newly recognized and made retroactive to cases on collateral review, that's the class.

If that happened--

Justice Scalia: Sure.

Mr. Feldman: --then the time runs from the date on which it was initially recognized.

In other words--

Justice Scalia: Which would have been the date on which it was newly recognized.

Mr. Feldman: --Right.

Justice Scalia: So why couldn't they say, the date on which the right asserted was newly recognized by the Supreme Court if it has been made retroactively applicable?

Wouldn't that have been a more--

Mr. Feldman: That... that would have been better.

I would definitely agree with that.

Justice Ginsburg: But what about... I think the principal argument that Ms. Bergmann made was your reading means people... you're encouraging filings that inevitably will be thrown out because the right will be made retroactive?

Mr. Feldman: I think I just have a couple of answers to that.

One is that when Congress enacts a statute of limitations, any statute of limitations has the effect of pushing people into court who might otherwise like to wait.

And that was a predictable result that Congress would have surely known when it enacted this.

I--

Justice Ginsburg: But the other... the other way avoids loading the district court with filings that are futile.

Mr. Feldman: --But... and which... many of which may be quite easy to... to dismiss.

But I would say Ms. Bergmann's reading has a kind of... the opposite problem with it, which is under her reading the... no one... when a court holds something retroactive can... is an unpredictable matter.

And under her reading, nobody... even where there's a right that's rather important and that should be retroactive, no one could get relief until an appropriate court has held it retroactive, which could take years.

It could be never.

And if the Court... and I think that that reading of that... therefore, I think that that... that reading has just the opposite problem.

Justice Ginsburg: You see, you're... you're saying--

Mr. Feldman: What Congress wanted--

Justice Ginsburg: --that the district court should take these filings, should not hold them.

It should itself make the retroactivity determination.

Mr. Feldman: --It can do that subject to appeal and ultimately certiorari in this Court.

I think, though, that ultimately what Congress wanted was a 1-year period after this Court initially recognizes a new right.

When the... for that... that period of time the finality that is so important to the criminal law is... does... is suspended to a certain degree.

People can litigate the issue.

After that, the criminal law can go back to its retributive, deterrent purposes which can only be achieved if finality is recognized.

I think, in particular, when you're talking about section 2255 motions, frequently the relief, if there is any, is going to be a new trial.

And there's a particular cost, as the Court has recognized, of trying to retry somebody many, many years after an initial conviction.

Sometimes it means, in effect, it's just an acquittal because you can't find the witnesses or you can no longer prove it beyond a reasonable doubt.

And I think, therefore, Congress said, if there's a new right, that's a sufficiently exceptional circumstance, that we can suspend that finality for a brief period, but 1 year and that's all.

These things shouldn't come out 10 years later or 15 years later or 20 years later.

And that was the purpose, I think a perfectly reasonable purpose the Congress intended to serve here.

And I think that actually the language of it, which says 1 year from the date on which the right asserted was initially recognized by this Court, accomplishes that purpose.

Justice Kennedy: Your... your position is strengthened by the other three provisions of the statute that mentioned this, but it's not controlled by that, I take it.

You think it's unambiguous just as it read... as it's read on its own.

Mr. Feldman: I think that the date... there's only one possible date that can be found in this language.

Unless the Court felt that it had to completely rewrite it, there's only one date, the date on which the right asserted was initially recognized by this Court.

And even if... whatever problems the if clause have... has, that may mean that this... not very many people... the worst it would mean is that not many people can take advantage of that date.

But unless it's... that date is... there's something unconstitutional, which no one has suggested, about Congress picking that date and that limitations period for people who have had the chance to litigate things on direct review... in any event, it had 1 year from the date their conviction became final.

Unless there's something wrong with that, I think that the Court should follow the terms of the statute, and the time should run 1 year from the date on which the right was initially recognized.

Rebuttal of Janice L. Bergmann

Chief Justice Rehnquist: Thank you, Mr. Feldman.

Ms. Bergmann, you have 6 minutes remaining.

Mr. Bergmann: Just several quick points.

I'd like to start with the last point that Mr. Feldman made saying that there is only possible date under which the limitation period can run and... and cautioning the Court about rewriting that date.

What the Government neglects to mention is that it's asking this Court to rewrite the if clause by changing Congress' use of verb tense from a past tense to... to something that could happen in the future.

They want this Court to read that language contrary to Tyler, contrary to the use of verb tense and allow a district court to make a retroactivity decision at some time in the future in every case in which a motion is filed under paragraph 6(3).

The second point I'd like to make is that the... in situations such as this that involve these kinds of important rights, interests in finality are at an ebb.

These are the types of rights where someone may well be innocent of the crime for which they are incarcerated, that involve important rights that go to the accuracy of the underlying adjudication.

It seems to me in these circumstances, there is... it is a situation where Congress' need or... or the need of the courts to enforce finality to keep people in jail are at their lowest point.

These are very special rights and Congress went to the trouble of drafting and enacting paragraph 6(3) and paragraph 8(2) to protect these rights.

And... and I think the Court should read them as broadly as possible in order to protect those rights.

Justice Scalia asked a question about the difference between newly recognized and initially recognized.

I wanted to go back to that for a minute.

There are circumstances where a... let me see if I can get this right... where a... a right may be newly recognized but not yet initially recognized.

And I would... I would point the Court's attention... the decision in Penry.

In Penry v. Lynaugh, this Court stated that if there was an Eighth Amendment bar to the execution of mentally retarded individuals, that would be a new right that would be retroactively applicable to collateral cases.

But then the Court declined to initially recognize the Eighth Amendment right.

It wasn't until Atkins was decided that the Eighth Amendment right was initially recognized.

And so--

Justice Scalia: Well, it didn't newly... it didn't newly recognize it either, did it?

Mr. Bergmann: --Well, it... it... I would say that it... it recognized that it was new and that seems to be the way the courts have interpreted--

Justice Scalia: It was... it recognized that when it would be initially recognized, it would be newly initially recognized.

[Laughter]

Mr. Bergmann: --That's correct, Your Honor, but I would say that there would be no additional decision of this Court that would be necessary for... for someone to conclude that all three provisions of paragraph 6(3) had been met.

Justice Scalia: I see your point.

Justice Breyer: I thought it could be, if you want to play games, there is an imaginary right to which Blackstone has referred 48 times.

Yet, for some odd reason, that right has never come to the Supreme Court of the United States.

But one day it does.

It is a right of constitutional dimensions embedded in the law of stoppage in transitu.

And although it's well recognized, we've never had a case.

Finally, we get one, and it is initially recognized here, but it is not newly recognized for every treatise on stoppage in transitu has long assumed that it was part of the law of the United States.

I don't know.

That's what I thought it was.

Mr. Bergmann: Well, yes, Your Honor.

There... there are... every time this Court issues a decision, someone could argue that it initially recognizes a right, and whether that right is new in the Teague sense or old--

Justice Breyer: I take it that what I've just said is of total irrelevance to everything.

Is... is that right?

[Laughter]

Mr. Bergmann: --No.

I disagree, Your Honor.

I mean, there are circumstances where this Court initially recognizes rights, but then later on determines that they are not new, that they are indeed old.

That happened in Simmons v. South Carolina.

The Court recognizes... recognized a right to present certain types of mitigation evidence in the penalty phase of a capital case, but then the Court later determined that that was not a new right.

It was an old right in the Teague sense, and so it, therefore, applied retroactively because it was an old right but it did not newly recognize it at the time that it initially recognized it.

And I'm sorry for the linguistic... but it... it is complicated.

Justice Scalia: Not your fault.

Justice Souter: I'm laughing at the statute, not at you.

Mr. Bergmann: Thank you, Your Honor.

I just wanted to say in closing that... that it is a difficult statute, but I think that Mr. Dodd's interpretation of the statute both respects Congress' use of tense and is consistent with the reading of paragraph 8(2) that this Court gave in Tyler.

It also respects Congress' intention to create a specific exception for new rights that apply retroactively by allowing for the realistic possibility of... of success in either an initial or a second or successive motion premised on such rights.

It also, as we've discussed, promotes judicial efficiency by eliminating from it frivolous motions because litigants would not file until it was clear that they actually had a right to collateral relief.

In sum, this Court should conclude that the triggering date is when all three of the prerequisites have been met.

In this case, that would be when the Eleventh Circuit decided Ross v. Richardson.

I guess my... my final concern is for my client.

If the Court constructs a rule where the Supreme Court would have to be the court that makes the retroactivity decision, I hope the Court will consider the effect of such a rule on someone like my client who filed prematurely on... in... in hopes that at some point his arguably meritorious Richardson claim would be heard.

Whether the Court decides that those premature filings should be dismissed without prejudice or if there's some kind of analysis the lower courts should take in resolving those claims--

Justice Breyer: How... how is... how does that work?

I mean, can you explain that a little?

Mr. Bergmann: --Well--

Justice Breyer: Suppose he did... he hasn't violated the statute of limitations.

He... he filed it before a year ran from the time that we finally recognized it because we haven't even recognized it yet.

Mr. Bergmann: --Well, that would be my argument, Your Honor, that he was premature.

Justice Breyer: But what is premature?

What prevents a person from being premature?

They just might lose on the merits of their claim is all, and he might anyway.

Mr. Bergmann: That's... that's if the Court would allow the retroactivity decision to be made in the... on an initial motion by the district court in that particular case.

Am I correct?

Maybe I'm misunderstanding you, Your Honor.

Justice Breyer: No.

I... I was the one who's having a problem.

I... I didn't see how your client would be hurt if we adopted Justice Stevens'--

Mr. Bergmann: Well, the problem is that some lower courts have held that if you... you file a motion that's untimely--

Chief Justice Rehnquist: Thank you, Ms. Bergmann.

Mr. Bergmann: --Thank you, Your Honor.

Chief Justice Rehnquist: The case is submitted.

Attribution:

The Oyez Project

Featured:

Rhines v. Weber - Oral Argument

Fri, 09 Jan 2009 14:49:04 +0000

Case:

Rhines v. Weber

Media File:

03-9046_20050112-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Roberto A. Lange

Justice Stevens: We'll now... we'll now hear argument in Rhines against Weber.

Mr. Lange.

You may proceed, Mr. Lange.

Mr. Lange: Justice Stevens, and may it please the Court:

Stay and abeyance is the proper way to administer the total exhaustion rule under the unique facts of this case.

Several Justices of this Court already have endorsed stay and abeyance, and seven of the eight circuit courts of appeals that have considered the issue have permitted stay and abeyance under similar circumstances.

Section 2254 and the decisions of this Court in Granberry v. Greer and Strickland v. Washington make clear that exhaustion is not a jurisdictional requirement.

District courts have the inherent authority and the broad discretion to issue stays in cases within their jurisdiction.

Justice Scalia: I think that's unquestionable.

The... the issue really is whether it's an abuse of that discretion to... to grant a stay and abeyance when the... the petitioner comes before the court for habeas without having exhausted in State court.

I mean, that's the question.

I think everybody will stipulate that there's power to... to stay proceedings, but is it an abuse of discretion to do so in these circumstances given the statute that... that wants a 1-year, prompt resort to the Federal courts.

Mr. Lange: Justice Scalia, I agree with your framing of the issue.

Justice Scalia: Okay.

Mr. Lange: And I also believe that a stay under these circumstances is appropriate under the statutes, section 2254 and 2244, and is consistent with those statutes.

There is nothing, as Justice Souter noted in his concurrence in Duncan v. Walker, that prohibits the... the granting of a stay under circumstances such as these.

Indeed--

Justice Kennedy: Well, there's no... there's no abuse of discretion here.

Why?

Because we have an interest in having all of the claims exhausted?

If... if it's no more... if it's as broad as that, then there's no AEDPA statute of limitations.

Mr. Lange: --No, Your Honor.

I believe there is no abuse of the discretion here because if a stay had not--

Justice O'Connor: Well, why shouldn't... why shouldn't the petitioner for habeas have to first go to the State court and exhaust the State court claims?

Here that wasn't done.

The petitioner eventually ended up in Federal court with a laundry list of 30-some unexhausted State claims, for goodness sakes.

Why shouldn't those have been presented in the first instance to the State court?

Mr. Lange: --Well, in an ideal world, they would be presented in the first instance, but we're dealing with a... a world where 93 percent of petitioners are proceeding pro se.

Your Honor, stay and abeyance does force a petitioner to present unexhausted claims in State court--

Justice Kennedy: At the price of suspending the 1-year statute of limitations that Congress thought was central to AEDPA.

Mr. Lange: --No, Your Honor.

I do not see this as a suspension of the statute of limitations.

Mr. Rhines met the AEDPA statute of limitations.

He filed when only, by the State's own admission, 8 to 14 days had run on his 1-year AEDPA statute of limitations.

Justice Scalia: Well, but it's a free ride if you say... so long as you get in within the 1-year period, the court can then give you another 3 years or as long as the court thinks is reasonable for you to go back and... and do what you were supposed to do before you arrived.

I mean, that seems to me is a frustration of the 1-year statute of limitations.

Mr. Lange: I disagree that that is a free ride, and I do not see that as a frustration of the 1-year statute of limitations when a petitioner has met the 1-year statute of limitations.

Your Honor--

Justice O'Connor: But the petitioner--

Justice Souter: No, but the point--

Justice O'Connor: --didn't go to the State court with this enormous laundry list of unexhausted claims.

I mean, what do we do to encourage the procedure to be followed?

Congress did want all this compressed and thought people should apply first to State court and, when those are exhausted, then within the time limit apply to Federal court.

But this... this scheme does something else, it seems to me.

Mr. Lange: --Your Honor, Congress wanted to compress certainly the time between exhaustion of the State remedies and the time when the petitioner came to Federal court.

However, Congress gave unlimited tolling while there is any proceeding going in... in State court.

I... I see this stay and abeyance as a procedure that gets applied somewhat infrequently and at the discretion of a judge to... a district court judge to apply or not apply when it's appropriate to--

Justice Ginsburg: Is there a difference... would you say there's a difference between a case where the petitioner comes into Federal court in the first instance with this laundry list or as, if I recall correctly, this case, goes first to the State court and then, when it's dismissed from the State court, comes to Federal court with the same basic list which has been exhausted, plus others which have not?

Would you distinguish the case on the propriety of stay and abeyance of passing up the State court, going to Federal court first, going to State court with your pro se petition raising a bunch of claims but not all of them, and then coming to Federal court?

Mr. Lange: --I think it truly depends on the circumstances which of those two hypotheticals present a more compelling case for stay and abeyance.

In Mr. Rhines situation, he did go to State court first and exhausted the vast majority of the 35 separate claims that he has raised.

Justice Ginsburg: How many... how many were not exhausted of that... that laundry list?

Mr. Lange: The court... or the State challenged 12 of the claims as unexhausted.

The district court found eight of those claims to be unexhausted, Your Honor, and made that finding after Mr. Rhines' 1-year AEDPA period had run.

The finding... Mr. Rhines had filed in February of 2000 pro se.

The district court's conclusion that he had a mixed petition and that there were eight unexhausted claims was made in July of 2002.

Justice Ginsburg: 16 months.

Mr. Lange: It's actually a little bit... it's longer than 16 months, Your Honor.

The district court referred to 16 months, but it's almost 2 and a half years, from February of 2000 to July of 2002, Your Honor.

Justice Kennedy: One of the problems is that the statute encourages prompt resolution in... in the Federal system as well, and under a stay and abey procedure, you could have a district judge who lets the matter sit for 9-10 months and all of a sudden issues a stay and abey.

How are we going to control that?

Mr. Lange: Your Honor, I think the alternative that the State proposes presents an even more troubling illustration.

A district court, of course, can proceed at its own... at its own rate, grant a stay, grant the terms of the stay as it sees fit, and I believe that takes care of the consideration that... that Your Honor's question indicated, Justice Kennedy.

The suggestion of the State sets up a situation where, according to the State, they want Rhines to purge his... his claim... his petition of the unexhausted claims and proceed in State court at the same time, which is unseemly to have Mr. Rhines proceeding on 27 exhausted claims in Federal court at the same time that he is proceeding on 8 claims in State court.

Now, South Dakota is a little bit unique.

It... it allows a second State habeas action.

There's no time bar to a second State habeas action.

In fact, the South Dakota legislature has made a policy decision that indigent prisoners are entitled to representation of counsel in their first habeas.

Justice Kennedy: Well, so then he's protected in the State system, and if he needs Federal review, he can come here on direct.

Mr. Lange: Your Honor, the problem is the eight claims that he is now exhausting in State court, if the State's approach is taken, he forever sacrifices, loses the right to Federal review of those eight claims.

Justice Kennedy: No.

He can come to... here... this Court on direct review.

Mr. Lange: Excuse me.

Under direct review?

Is--

Justice Kennedy: He can come to this Court on certiorari after the State decision in the second... in the second habeas.

Mr. Lange: --Your Honor, as a matter of--

Justice Scalia: It's fair for you to say he loses his right to Federal review--

Mr. Lange: --Right.

Your--

Justice Scalia: --because we wouldn't necessarily take that case, whereas you say he'd have a right to go into Federal... Federal habeas.

So--

Mr. Lange: --Thank you for throwing me the life preserver.

I--

[Laughter]

I understand this Court grants fewer than 1 percent of the cases, so as a practical matter, for there to be an independent review, as contemplated by section 2254(a), it does require a district court's involvement.

As a practical matter, this Court on... on cert can't be expected to... to conduct that review.

2254(a), which is the statute that grants jurisdiction, does indicate that a Federal court shall entertain causes of this action.

Now, 2254(b) does contain the exhaustion requirement in (b)(1) and makes clear in (b)(2) and (b)(3) that it is not jurisdictional.

The... the irony--

Justice O'Connor: Would we have to... would we have to reverse in part Rose against Lundy to go with your view?

Mr. Lange: --I don't believe so anymore than you would have to reverse in part Rose v. Lundy to go with the State's view.

And let me explain.

The approach of stay and abeyance is more consistent with the principles of Rose v. Lundy than the... than the State's position.

In Rose, this Court was concerned about comity and federalism.

It... it serves the interests of comity and federalism for a Federal court to suspend consideration of a Federal habeas case while a petitioner has a remedy and is actually pursuing it in State court.

The petitioner may be granted the remedy in State court, which in turn would render the Federal petition moot altogether.

There could be, between the competing State and Federal cases, competition for the transcript or even the exhibits.

Rose v. Lundy also contemplated a process that would not unreasonably impair the petitioner's right and would give the petitioner the choice of either purging the unexhausted claims or going back to State court, exhausting the claims, and then coming back to Federal court with one fully exhausted--

Justice O'Connor: Well, that was at a time before the AEDPA enactment that tried to put limits, time limits, on these things.

Mr. Lange: --The only--

Justice O'Connor: That's what we run into here, is a total frustration almost of Congress' time limiting.

Mr. Lange: --Your Honor, I... I would disagree that this is a total frustration of Congress' time limiting... time limiting.

Again, Congress granted unlimited tolling while a petitioner is pursuing remedies in State court.

Congress was not attempting to frustrate or impede the petitioner's right to seek State court relief or--

Justice O'Connor: Yes, but Congress, I think under the scheme, envisioned having someone make all the State claims the first time around, gather them up and go to State court, and let them take as long as they like... no statute will run until that's complete... and then go to the Federal court.

And this does an end run around that approach.

Mr. Lange: --Your Honor, I don't believe this does an end run because this is different than... than tolling.

First of all, in tolling it's automatic under a statute, and stay and abeyance is always discretionary with the court.

The court can grant or deny the stay and abeyance order, alter it, revoke it, or in this case, put time limits on the petitioner's right to go back and... and forth.

Also, Mr. Rhines has complied with the AEDPA period.

He did file.

The unusual situation that could result here is if you assume a prisoner B who's in Rhines' same position and files at the same time, when only approximately 9 days have elapsed on his AEDPA period.

Petitioner B, let's assume, files three claims: one exhausted, one unexhausted, and one there's a dispute over whether it's exhausted or not.

Because petitioner B had a short trial perhaps or draws a different judge in the District of South Dakota, the judge can rule on that case perhaps within 100 days.

It gives petitioner B, under my scenario, 256 days to go to State court, exhaust his claims, and then come back into Federal court with one fully exhausted petition.

Rhines would be in the position of prisoner B in my scenario but for the fact that his claims are... are much more complicated.

He is serving a... a sentence of death.

He did have a long trial.

And under that situation, it's simply unfair to someone in Rhines' place to have his right to a review of the eight unexhausted claims cut short because he had a complicated case or the district court was slow in getting to a decision.

Justice Scalia: --That... that happens often with time limits.

I mean, it depends on when the court finishes its job and so forth.

What do you do about... about our opinion in... in Duncan v. Walker where we refused to toll the limitation period during the pendency of a... of the Federal proceeding and... and said, in... in justification of that holding, by tolling the limitation period for the pursuit of State remedies and not during the pendency of applications for Federal review, 2244 provides a powerful incentive for litigants to exhaust all available State remedies before proceeding in the lower Federal courts?

You are now urging us to eliminate that incentive entirely.

Mr. Lange: No, Your Honor.

Justice Scalia: Why not?

Mr. Lange: I believe there's always a very powerful incentive to prisoners to exhaust in full because if they file a mixed petition, they're not going to have relief.

Justice Scalia: Sometimes--

Mr. Lange: (b)(1) says it shall not be granted.

Justice Scalia: --Well, you said... you said in your brief that... that it's always in the... with the possible exception of capital cases, it's always in the interest of a habeas applicant to get... get it decided as soon as possible.

That's not really true.

Sometimes it's... it's in his interest to delay it as much as possible.

Witnesses will die.

People will move away.

All sorts of... there are all sorts of reasons why he... he might want to delay the process.

Mr. Lange: I think those illustrations are... are the... very much the exception rather than the rule, as this Court recognized in--

Justice Souter: --Well, what about the exceptional case?

I mean, how do we avoid the exceptional case?

Mr. Lange: --Well, I think that's then the district court's task that has more familiarity with the particular case.

Justice Souter: Which can do what?

Mr. Lange: The district court can refuse to issue a stay and abeyance order.

It can put tight deadlines on a stay and abeyance order.

The district court can revoke a stay and abeyance order.

It can alter it if there is delay.

I believe that is a decision that should be left to the court that's closest to the facts, the district court.

Justice Stevens: Do you think the procedure should be any different between capital cases and noncapital cases?

We're basically talking about what would be an abuse of discretion, as you indicated at the outset.

Do you think the same rule should apply to both, or do you think there might be... because there is a greater incentive to delay in the capital case than there is in the noncapital case.

Mr. Lange: You're right, Justice Stevens.

I... it's difficult to develop a rule that distinguishes between the two classes, but I do believe that's in the realm of the discretion of the district court.

The district court can set very tight deadlines on a petitioner returning to State court to exhaust remaining remedies like the Court here set a deadline of 60 days, and in the circuit courts, more commonly the deadline is 30 days to go back to State court and then 30 days to return once the State proceeding is... is completed.

Justice Scalia: But you... you don't really think we can hold that line, giving less favorable treatment to somebody who's... who's trying to argue against a capital penalty, less favorable treatment to him than somebody who's... who just wants to avoid 10 years in jail?

That's just not going to work.

Mr. Lange: I'm not advocating less favorable treatment or more favorable treatment for that matter.

I believe the rule has to be consistent between the two.

Justice Ginsburg: Could you just replay the order of the proceedings?

The first petition is to the State court.

Was the defendant in that first State habeas represented by counsel?

Mr. Lange: Yes, he was, Your Honor.

Justice Ginsburg: So he's been represented by counsel throughout.

Mr. Lange: Well, he filed his Federal habeas petition pro se.

The counsel was appointed shortly afterwards, yes, Your Honor.

Justice Ginsburg: But the... the State application that preceded that... he was represented there.

Mr. Lange: Yes, Your Honor.

Justice Ginsburg: And then he lost his representation when he came to the Federal court?

Mr. Lange: Justice Ginsburg, a different lawyer gets appointed in the Federal court system than represented him in the... in the State court system.

Justice Scalia: How... how general is... is this problem?

And... and to what extent is it tied to the fact that you can bring a second habeas in South Dakota?

I mean, in... in most States, if this had happened, I presume, when you went back to the State court, the State court would say, you know, you didn't... you didn't put in these claims the last time around and they're procedurally barred.

Isn't that what would happen in... in most other States?

Mr. Lange: I think that's an excellent point and on footnotes 9 and 10 of the yellow brief, there is a litany of the State procedural rules, and many States would bar a second habeas or would put a strict time limit that the petitioner could not meet.

South Dakota is different in that regard.

Justice Scalia: Yes.

Mr. Lange: South Dakota allows a second habeas and, indeed, allows a petitioner in a second habeas to show cause for a default by proving that he received ineffective assistance of habeas counsel, which is unique among the States.

Yes, many States that don't allow a second remedy would... would not... we would not be in this situation that we are here.

However, South Dakota does.

And in fairness to Mr. Rhines, it makes sense to stay the Federal petition and to allow him to exhaust his State court remedies on satisfaction of Rose and to come back with a fully exhausted claim.

Justice Scalia: Unless what would happen in these other States as the... is that the court would grant the... the stay of proceedings in order to let him go back to the State court and be told after however long it takes that... that his... his claims are now procedurally barred.

Do you think the Federal court would simply make its own determination that the claims would be rejected by the State court and therefore it would not stay?

I don't know.

Mr. Lange: I... I believe that would... could be and... and should be a factor in a district court's consideration of whether to grant stay and abeyance, Your Honor.

The State has expressed concerns about delay.

There are four reasons why those concerns are overstated.

First, in the 3 and a half years since Duncan v. Walker was decided, there have been cases in circuit courts of appeals that have approved of the stay and abeyance procedure.

None of those cases evidence that it is being misused or is causing undue delay.

Second, the terms of the stay themselves can restrict a petitioner's delay, as I've already recounted the... the district court did here.

Third, this Court in Slack v. McDaniel addressed very similar arguments to what the State is making now about delay through a second habeas filing.

And this... this Court noted that the Rules of Civil Procedure vest courts with flexibility to prevent vexatious or delayed litigation and that there are other reasons why those concerns expressed in Slack v. McDaniel were... were overwrought.

Fourth and finally, on the prospect of delay, as already mentioned in answer to one of Justice Scalia's questions, the vast majority of petitioners are not under a capital sentence.

It is not hyperbole to say that 99.4 percent of Federal section 2254 habeas petitioners are not serving... are not under a capital penalty.

Those are statistics from the year 2000 from the Department of Justice.

And those, I think with the extremely rare exception, are people who believe rightly or wrongly that they're in prison because their constitutional rights have been violated and would not favor delay under any circumstance.

So the delay concern that the State raises is... is overwrought.

Unless there are other questions, I'd reserve my remaining time for rebuttal.

Justice Stevens: Thank you, Mr. Lang.

General Long, we'll hear from you, please.

Argument of Lawrence E. Long

Mr. Long: Justice Stevens, and may it please the Court:

Congress... excuse me.

Congress carefully crafted a scheme designed to encourage State prisoners first to exhaust all of their State post-conviction remedies and then to file their habeas corpus petitions as soon as possible.

The congressional design includes three mutually dependent statutes, including a 1-year statute of limitations, a tolling provision, and a total exhaustion requirement, the combined effect of which is supposed to reduce delay, serve the principles of comity, finality, and federalism.

However, stay and abeyance erodes each side of this triangular statutory design.

Stay and abeyance allows tolling in Federal court when Duncan said there should be none.

It extends the statute of limitations beyond 1 year, and it ignores the total exhaustion requirement of 2254(b).

The result is that State prisoners, especially capital prisoners, are encouraged to file mixed petitions and rewarded with delay if they do so.

Justice Souter: What... what is your answer to... to your... your brother's answer on this, and... and that is, that the... the existence of stay and abey as a possibility is not a right to stay and abey?

And... and if a district judges find that a... there is reason to believe that the defendant is gaming the system, because he's a capital defendant and wants to delay or wants delay for any other reason, there's... there's no requirement that... that there be a stay and... and abeyance order.

And why... why doesn't that take care of what I... I think is a very legitimate issue that you raise?

Why isn't that a... a sufficient answer to it?

Mr. Long: I think that... I think that the... the answer is that Congress designed the system to resolve all those issues in State court first.

I think one of the things that needs to be kept in mind is that an unexhausted claim is, by its very nature and by definition, a claim where there's an available remedy in State court.

Justice Souter: Oh, again, there's no question about that.

And... and in a perfect... sort of in a perfect system, I think your objection would be unanswerable.

The trouble with the system we've got is... is the trouble that... that is... is undisputed here, and that is, that most of these petitions, the overwhelming number of them, are going to be pro se petitions.

Exhaustion can... can be tricky.

The... the statute of limitations is... is going to run and... and an individual can end up in the... in the situation that this one had.

What... what he's asking for, in effect, is how do we tinker with the system, in effect, to prevent its being a... a very unfair burden on people who don't have the sophistication to help themselves.

Mr. Long: I don't think the system needs to be tinkered with, Your Honor.

Justice Souter: Well, I... I know but there's... what... what is your answer on the merits to the fact that most of the people who are going to ask for stay and abey are... are going to be pro ses, or at least have gotten into the mess that they're in as a result of pro se representation, and... and that... that exhaustion in close cases can be a very... very tricky issue?

What... what's your response to that?

Mr. Long: My response is in two parts.

First of all, Your Honor, I agree with you that exhaustion can be a tricky issue, but it's... it's the most tricky in the question about whether or not the question has been fairly presented.

The less tricky portion of the question is whether or not the claim is unexhausted, having been... that means there's an available remedy in State court.

The easy way to sort that out is just to file your claim in State court.

If there is in fact an available remedy, then you get tolling, and that solves the problem.

I--

Justice Scalia: I'm not sure... I'm not sure it's... it's true, are you, that... that the reason people get into these situations is because they were pro se.

That wasn't the case here.

I... I think they probably get into this situation very often because they have a better or at least a different lawyer at the Federal habeas stage than they had at the State habeas stage, and this new lawyer sees additional claims that... that he wants to make.

Isn't... isn't that exactly what happened here?

Mr. Long: --That's... I... I suspect that's the typical case in... in capital cases.

Mr. Rhines is currently--

Justice Breyer: It's typical.

I mean, what I have in the statistics is that about 36 percent of all the habeases are dismissed for failure to exhaust, and 93 percent of all of the habeas petitioners are pro se.

Now, the conclusions I draw for that is it's probably these pro se people... I mean, 93 percent are pro se... that get the procedural dismissals, and certainly a third or so, if we agree with you, of all of the habeas petitions filed in... in Federal court are going to be finished, terminated.

The door is closed because it takes a Federal court about 9 months on average to process a habeas.

Now, you just take that and you say, we've closed the door of the Federal court to a third of all the habeas petitioners.

And if I had thought that Congress wanted that, then I might say fine.

But I thought that Duncan... and I know I was on the other side of the case, but I felt the majority had a pretty good point on the language, to tell you the truth.

But what I didn't think they had such a... I mean, I couldn't find much of a congressional purpose one way or the other there.

I thought the purpose of the statute of limitations is really to get people to file their petitions.

Once they file them, they have a year but it's tolled.

You know, I mean, you understand the thing.

I... I'm really looking for you to tell me some tremendously strong congressional purpose that's served so strong that you want to knock a third of the petitioners out of Federal court forever.

Mr. Long: --I think it's less complicated than that, Your Honor.

I think that it--

Justice Breyer: That's pretty simple.

Mr. Long: --I--

Justice Breyer: The door is closed forever.

I mean--

Mr. Long: --I disagree.

I disagree with you, Justice Breyer.

I... I think that even for a pro se petitioner, I do not think it is more difficult for him to find the door of the State courthouse than it is to find the door of the Federal courthouse.

And the key, I think, to your argument is that claims are unexhausted by definition if there's an available State court remedy.

Therefore, by definition, they ought to be going to the State courthouse rather than the Federal courthouse.

Justice Ginsburg: The--

Justice Breyer: --They seem to have made a mistake here quite a lot.

Why do these statistics come out the way they do?

I mean, it is just as easy.

Mr. Long: I... I can't--

Justice Breyer: I agree with you.

Why... why aren't they filing... why... why are they all filing so many, 36 percent filing in the wrong court?

Why is that?

Justice Scalia: You know, it... it could be, I suppose, that these people have nothing else to do sitting around in the jailhouse, and... and having written their State petition, they sit around for a few more months and they say, you know, there are a few more claims I could make.

I think that's... it's as simple as that.

And... and what the statute is designed to do, I... I think you're telling us, is to say, look it, be careful.

Make all your claims in the State court the first time.

That doesn't seem to me to be too much to demand.

Mr. Long: --Justice Scalia, I think that's exactly what the statute... the statutes... the three read together and enforced together--

Justice Ginsburg: --But they're all--

Justice Kennedy: I take it... I take it that one of the answers to the observation that the Federal court is closed to a third of the claims is that that's not true with respect to the exhausted claims.

The... the petition can simply be purged as to unexhausted claims and as to the exhausted claims, the courthouse door remains open.

Mr. Long: --Well, I agree with that.

The... let's... let's deal with the facts in this case.

Justice Ginsburg: --May I ask you--

Mr. Long: Please.

Justice Ginsburg: --with respect to this case?

I thought this case was such a good illustration of the problem.

If claims came into the Federal court neatly labeled, exhausted, unexhausted, then I think that you would have a very strong argument.

But as this case illustrates, the question of whether it's been exhausted or not is something on which people can disagree.

And I suppose why the district court took well over a year to decide this case is the petitioner says, I've exhausted everything, and the prosecutor says, you have not exhausted 12.

And the district court is going by the... going over these one by one and says in the end, you're both wrong.

My list is eight.

And it's that problem of has this claim been exhausted.

Now, if it was a case of deliberately withholding a case from State court and bringing it up fresh in... in the Federal court, that would be a case where the Federal court should say, go away, you didn't even try.

But what do you do with these cases where it's really hard to tell whether the claim has been exhausted?

Mr. Long: That was not the situation in this case, Your Honor.

Justice Ginsburg: Then why did the... the district judge say four on the State's list have been exhausted?

Mr. Long: Well, the... factually the court... the court examined the amended petition and concluded that eight claims in the amended petition were unexhausted.

The problem is this... or... or at least the variance in the facts from what you suggest is this.

Mr. Rhines filed an amended petition in November of 2000 with counsel, after having been through all the record.

He admitted in his amended petition that four of the claims were unexhausted.

He still had 80 days left to run on the statute of limitations.

So he conceded in his amended petition in Federal court that he still had 80 days to run... while there was still 80 days to run on the statute of limitation, that four of the claims he submitted in the petition were unexhausted.

That's not difficult to sort out because defense counsel admitted it, as he pled them.

And so there isn't any tricky question about whether there were unexhausted claims in this petition.

Now, that was in November of 2000.

He waited until the court decided the decision in July of 2002 and didn't pursue his State court remedies until the court ordered him to do that in July of 2002.

And he filed his State habeas to exhaust those admittedly unexhausted claims.

Justice Ginsburg: So that... that would take care of the four claims.

How about the other four?

Mr. Long: Well, it doesn't make any difference at that point, Your Honor.

If there's a single, solitary unexhausted claim, the problem--

Justice Ginsburg: Well, they--

Mr. Long: --is not... is not worse if there gets to be 12 or 15.

Justice Ginsburg: --But those could be... those could be dropped out of the Federal complaint.

There you're saying, district judge, you would be abusing your discretion because admitting that he hadn't exhausted these, he should have gone immediately to do that.

But what about the other four?

Mr. Long: Well, if he... if he goes within the 80 days and immediately files to pursue in State court his unexhausted claims, the statute is tolled.

He doesn't lose the statute.

Justice Scalia: Even without going back to the State court, I don't see anything in this statute which indicates that Congress expected everybody who comes into Federal court with unexhausted claims to have time to remedy that defect by running back to State court and... and filing.

This statute doesn't give any such indication.

And it's clear that will never happen if he files on the 364th day after the conclusion of the State proceedings.

Right?

I mean, his year is up already.

Even if the judge decides the question the next morning, it's too late.

So I... I don't know why we have to be concerned about giving him some entitled second chance to go back to... to State court.

I don't see anything in the statute that... that guarantees or that even envisions that.

And I... I--

Mr. Long: I'm sorry, Your Honor.

Justice Breyer: But I don't agree with that you were saying or you do agree with that, I know.

The... but the... the question that I would have is, is there anything the other way?

I mean, in Duncan, you know, I was dissenting and the thing that sort of moved me is I couldn't imagine Congress really cared about this.

I mean, what they do is they want to have you file within a year.

And they say, well, but if you filed within a year and you're in State court, we don't care anymore.

You're being... if you file in the wrong State court, you're tolled.

We don't really care once you're proceeding.

And now, however, if you go in... into Federal court by mistake instead of State court by mistake, well, you're out of luck on a random basis.

Some judges will get you back in on time.

Other judges won't.

Is there anything in the history or anywhere... I... I'm interested in the history from your point of view, as much as the other.

Is there anything that suggests that Congress cared about that?

Mr. Long: Not that I've found, Your Honor.

Justice Breyer: Either way.

Justice Ginsburg: If that's so, then why isn't a system like the one that the Second Circuit described the most reasonable thing to do, that is, to put very tight deadlines both on the petitioner and on the Federal court, that is, to deny... deny the stay and abey when the prisoner has not been diligent, to put a tight time line on when that prisoner has to go to State court, and a similarly tight line on returning to the Federal court after the State court is done?

And you could check against repeatedly abusing this by saying, and you get only one opportunity to do it.

Mr. Long: I think the answer to the question, Your Honor, is that in order to follow the Second Circuit as you've described, this Court would have to rewrite the interpretation of the exhaustion statute that they issued in Rose v. Lundy.

That's my belief because Rose v. Lundy... or the statute, as interpreted by Rose v. Lundy indicates that at a minimum, the unexhausted claims ought to be dismissed without prejudice and sent back for exhaustion in State court.

Justice Souter: But Rose and Lundy also assumed that they could go back to State court and... and in... in fact this could be done without wiping out the claims.

And the difference between the situation in Rose and Lundy and the situation we've got now is the difference which is focused, I think, in... in Justice Ginsburg's four claims as to which there was disagreement even between the district court and... and the State as to whether there was exhaustion.

There... there isn't a... a... as a... as a systemic matter across the United States, there simply isn't a way for most of these people to go back and litigate their State claims.

Rose and Lundy assumed there was.

Now there isn't.

Mr. Long: Your Honor, if the petitioner is not capable of going back to litigate the State claim, the claim is not unexhausted by definition.

And--

Justice Souter: It may not be... it... it will be waived.

I mean, if... if... on your theory, he... he jumps from the frying pan of nonexhaustion into the fire of waiver.

That's... that's no answer to the problem.

Justice Ginsburg: See, you could... there are two things in Rose v. Lundy, and everybody agrees with the one, you must exhaust in State court.

You cannot have the Federal court take a first view at that question.

You... you must exhaust.

And... but then Rose v. Lundy also said without prejudice, and your reading strikes out without prejudice not based on the defendant's conduct, not based on the petitioner's conduct, but because it took the district court more than the limitation period just to sort out which claims were exhausted and which weren't.

Mr. Long: --I think there are two responses to that, Your Honor.

First of all, the... the fact of whether it is without prejudice in fact or in law is driven by how much time is left on the statute of limitations.

A dismissal without prejudice at the time the amended petition was filed in this case would have left 80 days on the statute and he could have pursued his... his remedy in State court and tolled the statute.

Now, in the... in the more common situation with the habeas petitioner, I think the answer has to be Congress has changed the landscape.

They have changed the landscape relying upon the total exhaustion rule in... that they enacted and that this Court has interpreted.

And they have added the statute of limitations and they've added the tolling provisions, and that has to be entered into the computation.

Now, I think that that simply raises the bar for all petitioners to make doubly sure that if they have a claim, they have presented it to a State court judge because they... they--

Justice Ginsburg: Well, the... the troublesome thing is some petitioners will be able to do just what you said in South Dakota, go back to the State court a second time, because they had a swift district judge, and some won't because the district judge was slow.

So to treat identically situated petitioners differently not because of any lapse on the petitioner's part but solely because one had the luck to get before a swift district judge and the other, the bad luck to get before a procrastinator, that seems arbitrary and not anything that Congress built into the statute.

Mr. Long: --Your Honor, I... I struggle with the... one of the premises of your hypothetical, and the portion I struggle with is the... is the situation where the petitioner, through no fault of his own, either... and I think that's implied in your hypothetical... doesn't go to State court.

I... I think that that is... I think that that's the--

Justice Ginsburg: No, did go.

Did.

Every one of these cases, I say if they came rushing to the Federal court first, no Federal judge would even consider giving them a stay so they can go to the first... first time.

But these... these come up where someone has gone to the State court and then they come to the Federal court with a new petition and there's arguments about what they exhausted and what they didn't.

I'm... I'm leaving out the person who never went to the Federal... State court at all.

That person is... is not the category that this case represents.

This case represents the one who goes to State court and comes to the Federal court and he has arguably some additional claims.

Mr. Long: --The... there's the... the difficulty in the stay and abeyance procedure, as it is currently practiced, I think, is that there is no set of standards, other than the three statutes that we've... that we have discussed, to guide the district court's discretion in when they give stay and abeyance.

Justice Scalia: --General Long, do... do those States that apply stay and abey make a distinction between whether the person who comes with unexhausted claims has exhausted some claims in State court and ones who haven't?

Mr. Long: Well, I think the predicate to getting stay and abeyance, Your Honor, is that there has to be at least the presence of one exhausted claim and one unexhausted--

Justice Scalia: Why should that be?

Mr. Long: --Well, I think that that follows from... I think that follows from Rose v. Lundy which talked about a mixed petition and that's the... that's the factual background.

Justice Scalia: If you get a second bite, why shouldn't you get a first bite?

I mean, I... I don't see... I don't see any reason for treating preferentially the... the person who files in State court but does not file new claims, which he should have known to file at that time, and treating the person who comes to the Federal court with those new claims but doesn't have... doesn't have even one that he took to State court.

I... I don't see any reason to be merciful to one and not the other.

Mr. Long: Well, I think the--

Justice Ginsburg: The... the--

Justice Scalia: But you're... but you're telling me the States do draw a distinction.

Mr. Long: --Well, I don't think--

Justice Scalia: I mean... I mean--

Mr. Long: --it's not the States who draw a distinction.

I'm sorry.

The Federal court--

Justice Ginsburg: --Well, hasn't the second--

Justice Stevens: But the difference is that one of those petitions could be totally dismissed and the other one would not be.

If there were no exhaustion whatsoever, they... they'd plainly dismiss the Federal case.

Mr. Long: --I think so, yes, Your Honor.

Justice Stevens: Whereas, if there's one exhausted claim, they could... they could keep the Federal... petition in Federal court and stay it and let the unexhausted claim be exhausted.

Mr. Long: Well, that's... that's the... it's the stay that we're having the problem with, Justice Stevens.

But... but if there is the presence of one unexhausted claim, the... the total exhaustion requirement--

Justice Stevens: And the judge could dismiss the others.

Mr. Long: --He... he can dismiss the unexhausted one and move forward.

And... and, of course, what has happened in the... since the... the landscape has changed since 1982 and because now the 1-year statute and the tolling provisions, there is more sanction for that dismissal under the total exhaustion requirement than there used to be.

Justice O'Connor: General Long, if you were designing a system to set standards to guide the Federal judge in deciding how to treat these, what standards would you set?

Mr. Long: That's a hard question, Your Honor, because--

Justice O'Connor: Do your best.

[Laughter]

Mr. Long: --I... I think this, Your Honor.

I... I think the court, faced with a mixed petition, ought to first ask why have you not... if... if there is truly an unexhausted claim in this petition, why did you not present that claim previously in State court.

And after that, if... if the... if the answer to that is not satisfactory, I think that the... I think that that ought to be tested on, for example, the cause and prejudice standard or the actual innocence or fundamental miscarriage of justice standards which this Court has announced to cure procedural defaults in extreme cases.

But in the absence of those type of standards, I think that stay and abeyance has been simply applied too broadly and this case is a classic example of the misapplication of stay and abeyance.

Justice Kennedy: Well, are you suggesting then that we could have a rule, oh, somewhat like the grant of a preliminary injunction?

If it's a likelihood of success on the merits, if it's a fundamental right, if there's reason for maybe mistake and not having exhausted, then... then you'd allow us to innovate?

Mr. Long: Well, I--

Justice Kennedy: Because if you have that, we then have a new Gothic jurisprudence where we're reviewing discretion on a collateral issue.

Mr. Long: --Well, but--

Justice Scalia: --Rococo I think.

Mr. Long: --Well, the... the difficulty with the way it is now, Your Honor, is there is no review of the discretion of the district courts at all.

I mean, they simply do it, and--

Justice Kennedy: Well, I suppose the suggestion I made--

Mr. Long: --and it's--

Justice Kennedy: --is preferable than the one I gave.

Would you adopt that or would you insist just that there be no stay and abey at all?

Mr. Long: --Well, our first position, obviously, is no stay and abey at all, that the unexhausted claims ought to be dismissed, as the Eighth Circuit said in this case.

And if they... if they are truly unexhausted, then there is going to be a remedy in State court, and State courts are perfectly capable of identifying constitutional remedies and... and meting out the requirements.

I've had... I've had South Dakota judges send murder cases back to me to try after 12 years, and it's... it's a burdensome thing, and those cases need to move forward.

But what I would envision, Justice Kennedy, is this, that the rule ought to be that... that the... the... that the case is sent back to State court if there is truly, as... as the name implies, an unexhausted claim, implying that there is an available State remedy.

If... if resolution in the State courts does not resolve it, if the case comes back in some fashion, then the court needs to apply some standards like cause and prejudice or fundamental miscarriage of justice, which... which is what is applied in... in procedural default cases, and... and deal with it on that basis.

But the... the current lack of discretion with reference to how stay and abeyance is applied is in my judgment the... that is the... that is the most fundamental problem with--

Justice Ginsburg: --But again--

Mr. Long: --stay and abeyances.

Justice Ginsburg: --I come... I come back to the... the Second Circuit tried to deal with that problem and why isn't that adequate?

They didn't leave the district judges to do whatever was their will.

Mr. Long: The... well, the... the Second Circuit followed very closely to what the... what the district court did here, Your Honor, but what I did not see in the Second Circuit opinions and frankly haven't seen in any of the opinions except the Eighth Circuit opinion was any type of analysis about an explanation of why the petitioner hadn't been prudent and hadn't been diligent in State court.

And... and in the absence of any kind of inquiry like that, I think that stay and abeyance simply is... is... it's unguided.

There are no standards.

If there are no questions, thank you very much.

Justice Stevens: Thank you, General Long.

Mr. Lange, you have 7 minutes left, and normally I wouldn't intrude on your rebuttal time, but I would like to ask you to comment on one thought.

Do you think it would be appropriate before a district judge ever grants a stay and... and abeyance procedure, to make some kind of a preliminary, not exactly a probable cause determination, but some kind of a determination as to whether or not there is arguable merit to the State claim that he wants to stay the proceedings to... to allow him to exhaust?

Rebuttal of Roberto A. Lange

Mr. Lange: Yes, I do, Justice Stevens.

I believe that a district court, in evaluating a request for stay and abeyance, should look to make sure that the petition meets the standards of section 2254(b)(2) which is the provision that allows a district court to reach the merits of unexhausted claims to deny them.

It's similar to what the Court has now promulgated as rule 4 of the rules governing habeas corpus cases.

I think it makes sense for the district court first to look at... at whether there's merit to the petition because there really is no sense to hold in abeyance, pending exhaustion in State court, claims that lack merit.

Obviously, to get stay and abeyance, the petitioner will have had to file timely within his AEDPA period, and the court will have had to have held the case either through the expiration of the AEDPA period or you can imagine some scenarios where on the 364th day--

Justice Kennedy: Well, it's one thing to say that there's... it's utterly without merit and he can deny it, which he's entitled to do under the statute.

It's another thing to say that there's a high probability of success on the merits.

I'm afraid that most of the claims are going to fall in between.

The district judge just doesn't know absent testimony, et cetera, et cetera.

Mr. Lange: --Right, and those should be circumstances where the State court is left to judge whether the claim has merit while the Federal court proceedings are suspended, are abeyed or held in abeyance.

It makes sense, under the exhaustion norms of this Court, to let the State courts pass judgment first on claims that have sufficient merit where they can't be disposed of under rule 4 of the rules governing habeas corpus.

Justice Scalia: Mr.... Mr. Lange, why... why isn't... gee, you have Lange and Long.

Why isn't Attorney General Long's assertion sensible?

That is to say, it's an extraordinary thing to have Federal district courts in all criminal cases reviewing the work of State supreme courts.

We... we got into this in an era when we couldn't trust State supreme courts, especially in racial cases.

But that's where we are now.

But why is it unreasonable to say, look, you get one shot at coming to Federal court?

And if... if you... if you bungle that and you haven't exhausted first, we're not denying your claims.

Go back to State court.

We're just not going to reintervene as Federal courts.

Your... your claims are not dead.

Justice is not denied.

You just have to go back through the State system and we're not going to blue pencil the work of the State system a second time.

That's all.

Why isn't that reasonable?

Mr. Lange: Well, this is Mr. Rhines' one opportunity.

Congress did give in section 2254(a) jurisdiction to the courts and said the Federal courts shall entertain petitions of this... of this nature.

So this is a... a right that Mr. Rhines has to have these entertained.

He filed timely.

Justice O'Connor: Well, to have exhausted claims entertained.

Right?

Is there some... do you say there is some absolute right to have the Federal court hear unexhausted claims?

Mr. Lange: Well, under (b)(1), a claim must be exhausted to support relief from a Federal court.

That is right, Your Honor.

And these claims... if under the petitioner B scenario, the court had ruled promptly or the claims were less complex, allowing them to be disposed of earlier, Mr. Rhines could have had or... and should have all of his claims before the district court to be resolved.

The Court needs to be watchful here not to penalize Mr. Rhines and people who are in similar situations because they have complex claims.

Justice O'Connor: Well, this is not a pro se petitioner.

Mr. Lange: No.

He is represented by counsel, obviously, Your Honor.

I... I think it inappropriate to draw lines between pro se and represented counsel, though, in the realm of habeas.

That I think invites trouble.

So the rule you formulate is obviously not only for Rhines but for pro se litigants as well that... that deserve consideration.

This exhaustion rule is not to be an... a trap for the unwary pro se petitioner.

The whole purpose of the exhaustion rule, as this Court said in Keeney v. Tamayo-Reyes, is to... not to erect a hurdle on the path to Federal habeas court, but to channel claims into an appropriate forum.

And stay and abeyance does just that.

It prohibits further proceeding on a mixed petition in Federal court and channels, indeed requires, as a term of the order that the petitioner go and exhaust the remaining State remedy and come back to court with one exhausted claim.

That is what Rose v. Lundy contemplated and allowed with the dismissal without prejudice.

Justice O'Connor: Earlier you... you suggested that in your view the district court could deny it.

Mr. Lange: If under section 2254(b)(2) it does not meet the standard, yes.

Congress has allowed, because exhaustion is not jurisdictional, for district courts to reach the merits, albeit it to deny exhausted claims.

That's--

Justice Stevens: Mr. Lange, you were appointed by the Court, and on behalf of the Court, I want to thank you for your services and for the quality of your services.

Mr. Lange: --Thank you.

Justice Stevens: The case is submitted.

Unknown Speaker: The honorable court is now adjourned until Tuesday, the eighteenth of January at ten o'clock.

Attribution:

The Oyez Project

Featured:

Wilkinson v. Dotson - Oral Argument

Fri, 09 Jan 2009 14:49:01 +0000

Case:

Wilkinson v. Dotson

Media File:

03-287_20041206-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Douglas R. Cole

Justice Stevens: We'll now hear argument in Wilkinson against Dotson.

Solicitor Cole.

Mr. Cole: Justice Stevens, and may it please the Court:

Prisoners typically want two things: first, to improve their conditions while in prison; and second, to get out of prison as quickly as possible.

Respondents' claims here are not conditions claims.

They do not seek a larger cell or better food while in prison.

Rather, their claims are about getting out of prison.

Traditional understandings of habeas would suggest that these release-driven claims lie there, not in section 1983, and this Court's decision in Heck confirms that this common sense answer is also the correct answer.

In fact, Heck establishes two bars, each of which independently prevent respondents from using section 1983 to pursue their claims here.

First, Heck establishes that civil actions under section 1983 cannot be used to collaterally attack State criminal judgments.

Before a prisoner can advance a claim under section 1983 that would necessarily imply the invalidity of such a judgment, he must first show that it has been favorably terminated.

And Edwards v. Balisok confirms that quasi-judicial administrative decisions regarding the duration of confinement count as criminal judgments for this purpose.

Justice Souter: Well, it isn't just duration of... of confinement.

I mean, in... in Balisok, what you had was a determination that the confinement would be definitely less as a result of the... the good time scheme.

The... the gut notion behind Balisok was that what you were attacking would imply that the sentence itself was invalid because the conviction was and so on.

We don't have that here.

What we have here is a scheme that makes a... a sentence that is imposed a more definite sentence.

We know where in the range it's going to be reconsidered.

And however that may be classified, it's not simply a Balisok situation.

Mr. Cole: It's arguably different than the good-time credits at issue in Balisok, as... as Your Honor notes.

However, I... I would suggest that even with respect to good-time credits, often under many State systems, good-time credits have the dual effect of moving up the parole eligibility date, as well as potentially... and in some States, it doesn't even have an effect on the--

Justice Souter: Right, but that had--

Mr. Cole: --of the sentence.

Justice Souter: --that had nothing to do with the rationale in Balisok, as I recall it.

Isn't that correct?

Mr. Cole: Your Honor, the... the Court... that's... that's correct, yes.

And I guess what I'd... I'd say is that what seemed to be driving the Court, though, was still the durational aspect of the sentence; that is, as the Court said in Muhammad, if a claim threatens no consequence for the duration of confinement, then that isn't a... or that isn't a claim that should be brought in 1983.

Justice Souter: No... no question.

But the durational consequence in those cases was a definite consequence of longer duration, i.e., a sentence in the first place, a sentence not reduced by good time in... in the second example.

Here, there... there is no such clear consequence.

Here, the consequence is that there will simply be a period of time before a sentence already imposed will be reviewed to determine whether, in fact, it will be shortened or allowed to run.

And that's different.

Mr. Cole: I'm not sure it is, Your Honor.

Both of them are going to have definite durational consequences for confinement.

Justice Souter: No... no question about that.

At... at the level of whether there is a durational consequence, they... they both have it.

I... I grant you that.

Mr. Cole: And, Your Honor, as far back as Preiser, this Court has noted that challenges to duration go to the very heart of habeas corpus.

That's--

Justice Ginsburg: The duration of... of the sentence.

And here, there's no implication at all that this sentence is in any way invalid, that the sentence itself or any portion of it is invalid because the parole would be a matter of administrative grace, but it doesn't... the determination of parole eligibility or parole suitability does not go to the validity of the sentence in any way, shape, or manner.

Does it?

Mr. Cole: --Well, a decision from a Federal court... and I guess... I think the answer to Your... Your Honor's question is yes, it does.

And the reason I say that is I think we need to look to the consequences of the Federal court decision that would follow from the claims that... that the plaintiffs... or I'm sorry... the prisoners here are advancing.

The State of Ohio has made individualized decisions with respect to each of these respondents that they should not again be considered for release from prison until 2005.

The request... the relief that they're requesting and the claims that they're bringing, if successful, would result in the Federal court undermining that State decision with regard to the length that they should be incarcerated.

It goes directly to the... the--

Justice Scalia: It doesn't... it doesn't shorten the length that they're going to be incarcerated.

There... there is no certainty that... that if they win this action, they will be incarcerated for a lesser period, is there?

Mr. Cole: --Absolutely no certainty of that, Your Honor.

But there is certainty--

Justice Scalia: And... and there was in the other cases, wasn't there?

In Balisok.

Mr. Cole: --Well, Your Honor, I don't think so.

I mean, prisoners could be released in the State of Washington before the terminus of their sentence.

They might not... it isn't as though they had to serve all the way till the end, less whatever good-time credits they had.

They could easily be--

Justice Scalia: Well, but--

Mr. Cole: --released prior to that time.

Justice Scalia: --Oh, indeed, but the... but... but getting the good-time credits entitled them to be... be released earlier.

They might have been released even earlier still, but their entitlement to be released earlier was a consequence, wasn't it?

Mr. Cole: It was, Your Honor.

Justice Scalia: And there is no entitlement to be released earlier as a consequence of this.

Mr. Cole: We--

Justice Scalia: You just get another hearing and maybe you will, maybe you won't.

Mr. Cole: --That's correct.

You'll... you'll just get another hearing.

But an important note on that: you'll get another hearing, and you'll get another hearing sooner than the State has decided that you should get a hearing.

Justice Scalia: Well, that's true.

So it makes it possible that you'll get released earlier, but... but there's no assurance you'll... really, the crucial question for me, I think, is whether... whether this could have been brought as a habeas action.

Could this have been brought as a habeas action?

Mr. Cole: Yes, Your Honor, it could have been brought as a habeas action.

If you look at the nature of their complaints, they're... they're clearly in custody.

Habeas would require custody and violation of the Constitution of the United States.

Justice Scalia: But they're just asking for a new hearing.

They're not asking for an earlier release.

What's your closest case that... that would allow a habeas action which does not seek an earlier release but just... just a hearing?

Mr. Cole: I think probably the Garlotte case, Your Honor, in which the Court allowed a habeas challenge where the only result was going to be to advance the date of eligibility for release from prison incarceration.

Justice Souter: It... it doesn't advance the date of eligibility.

It advances the date at which the parole board will take another look.

The only eligibility is an eligibility to take... to have another look-take and not an eligibility for release.

Mr. Cole: That's true, Your Honor, but these... under that understanding of eligibility, where eligibility means the first possible release date.

But these prisoners are not eligible for release in the sense of it's not going to happen for them unless and until the next release hearing.

Justice Souter: But if they are subject to another look, they are not necessarily then eligible for release.

And I think that's the point that we're getting... let me... let me ask a... a sort of complementary question.

Is there any reason that these--

Justice Scalia: Is this with an I or an E?

Mr. Cole: I was hoping for an I, yes.

Justice Scalia: With an I or an E?

Justice Souter: --With an E. With an E. But if... if you take my questioning as a compliment with an I, that's perfectly okay too.

[Laughter]

Mr. Cole: I'll... I'll wait and see what the question is--

Justice Souter: Let's see what it is.

The... the question is, could these claims not have been brought in advance of any application to these particular prisoners of the revised... whatever they were... the 1998 guidelines?

And if the answer is yes, then they could be brought at a time when, I suppose, habeas would... would not have been a possible remedy.

Is... is... am I correct on those two points?

Mr. Cole: --The State concedes that if they had brought this case before a parole hearing at which the guidelines were applied, that it would be a different case, and that 1983 would be a remedy in that... in that situation.

Justice Breyer: Here's... here's the difficulty that I... that I have.

When I read your brief, I thought, well, he must be right because this is really about custody.

It's really about custody.

They want to get out eventually.

But then when I... I... when I went back to Balisok, I thought, oh, here's the problem.

The problem is that it's a damage remedy in Balisok.

And normally you want the person to go into 1983 to get damages.

But he's going to get mixed up.

When do you send him to habeas?

Well, we don't want to send him to habeas unless it's clear that habeas should have been brought.

And so if he's just challenging, for example, introduction of Fourth Amendment violation evidence or something like that, don't go to habeas.

Don't go to habeas.

You didn't have to go to habeas unless you had to, unless you had... unless it was necessary to upset the conviction.

You see?

That's why that language is there.

Now, I got that far.

Then I said, oh, I see what you do.

We should have one rule for damages.

Well, that makes sense.

But there's no reason not to have a different rule when you have the injunctive action, and there maybe we could follow your rule.

But the next thing I come across is a statement that says, no, no, the rule is the same whether you bring a damage action or whether you bring an injunctive or declaratory relief action.

And I said, well, why did we write that?

You know, we're the ones who caused all this trouble.

But the... the... well, because we didn't want to make it too complicated and... and not have all the questions coming, well, what kind of an action is it really, et cetera.

Okay.

So once I got that far, I said, oh, well, I'm going to have to change something for you to win.

Either I have to change the thing that says the damages should be the same as the injunctive, or I have to change something else somewhere along the line, the word necessary.

I don't want to change the word necessary.

Maybe I could change the other, but why bother really?

Because all that's important here is people know which way they should go.

Now, that's where I am at the moment, thinking give him his 1983 action.

It's simpler.

It follows from Balisok.

Why not?

Mr. Cole: Well, Your Honor, there would be some real consequences that would follow from that.

Justice Breyer: That's what I thought.

Mr. Cole: The reason that it's important that these cases go to habeas rather than 1983 is because of the State court exhaustion requirement that's attendant with habeas.

Parole claims like those advanced here are often, if not always, intricately bound up with State law issues, and the State law is often going to provide much more meaningful relief than the Federal law claims that the prisoners advance.

Justice Scalia: Doesn't the Prison Litigation Reform Act require exhaustion even in a 1983 action?

Mr. Cole: Yes, but as Your Honor is aware, that's an administrative exhaustion requirement which this Court referred to in Nelson, I believe, as a substantially lower gate than the exhaustion requirement imposed by habeas.

Moreover, it's telling--

Justice Souter: Is... may... may I just follow up on that question?

At the administrative level, cannot these State law policies perfectly well be taken into consideration?

In other words, your argument was these things are bound up with State law issues and the best place to have them resolved is... is in a State forum.

They can be resolved in a State administrative forum, can't they?

Mr. Cole: --They could, Your Honor, but I... I think the types of legal determinations with respect to legal entitlements and also the court... we would assume a State court would also consider Federal claims that might be made by the prisoners when they bring their State court claim.

Those types of legal claims are better resolved by State courts.

They have the expertise to make the... the determination.

And in fact, in Ohio--

Justice Ginsburg: Well, couldn't one say the same thing of prison conditions that you can bring in as a 1983 action?

The States know better about how their prisons are operating and what changes would have to be made.

So I... I think that you... you may be right that the State knows more about how its parole system operates, but so does it know more about how its prison system operates.

And that doesn't... that's not what determines whether you have 1983 or habeas.

Mr. Cole: --Well, but Congress, with respect to conditions claims... and if you look at the language of the administrative exhaustion requirement in the PLRA at 42 U.S.C. 1997(e)(a), it says no action shall be brought with respect to prison conditions under 1983 without administrative exhaustion.

So even Congress, in thinking about the PLRA and in thinking about requiring administrative exhaustion, understood that 1983 is really about conditions of confinement.

1983 isn't about... it never has been about... release.

Habeas has traditionally been the relief that people... or the cause of action that people bring when what they're interested in is relief... or release from prison.

And these claims, no one can dispute, are release-driven claims.

They may not ultimately be successful in securing release, but the prisoners here--

Justice Breyer: Well, no, I've got that part.

But the... and... and you're right about that part.

But that... you know, that doesn't get over the... the hump here I think because of the... what we've written.

The... I mean, where I'm coming out now, what you've just said, is well, you know, there's going to be exhaustion in both cases.

And prison conditions, if we say that habeas doesn't... that 1983 applies here I think probably... I can't guarantee it... but those where prison conditions would then cover it, and then there would be exhaustion, and there... where it doesn't seem to make difference there.

And now I'm back to asking the other half of this, which is, well, all right, suppose I say I see your point, I think you're right.

Now, what... what is your recommendation?

What do we change?

Do we change the word necessary in Balisok, which I'd be pretty reluctant to do?

Or do we drive a wedge between the damage cases and the injunctive/declaratory relief cases?

Mr. Cole: --I don't think you need to do either, Your Honor.

I think if we go back to Heck and look at the language there that talks about necessarily implying the invalidity of a criminal judgment, which is something--

Justice Breyer: Oh, well.

Mr. Cole: --respondents concede in their brief, the only question then is does a parole decision count as a, quote, criminal--

Justice Breyer: All right.

No, but then what you're doing is taking the first half because what you're reading is you're reading that word necessary, whatever those words were in Balisok that we were just talking about, as your case satisfying that condition.

And if your case satisfies that condition, then so does the case where a person wants to bring a damage action because of illegally seized evidence at his trial.

Doesn't it?

I mean, because all... I mean... and then we've swept... then we've done... we've really moved Balisok from what it was trying to do.

Mr. Cole: --I don't think that's necessarily right, Your Honor, because the illegally seized evidence at the trial... I don't know that that would necessarily imply the invalidity of the conviction that resulted from that trial.

Justice Breyer: Why is he bringing his damage action?

He thinks he's bringing it because what they did at that trial hurt me.

Now, how did it hurt me?

It hurt me because I went right to prison.

Mr. Cole: Right, Your Honor, and that... that's absolutely correct, but I'm not arguing for, and I want to make it very clear that I'm not arguing for any rule that would turn on the subjective intent of the prisoner in bringing their claim.

It turns on the necessary implication of success on that claim, and that's a... a distinction that the Court made both in Heck and in Balisok.

They looked to what's the necessary implication.

So we look to the claims here, not why they brought them, but what are the claims.

And the claims here, and the particular ones that I would focus on, are the ex post facto claims.

If the... if they have success on their ex post facto claims... and we don't believe their claims are meritorious, but if they're successful on those claims, there's no way the State's decision can stand.

They are entitled to a new hearing at which they would again be considered for parole--

Justice Stevens: Yes, but does that mean the... the judgment... the order denying release on parole is invalid?

There are really two parts to it.

One, you... we're not going to release you.

Secondly, your next hearing will be at a later date than you want.

Insofar as you challenge the date of the hearing... the date of the next hearing, does that necessarily imply the invalidity of the entire order denying parole?

Mr. Cole: --We... we concede that if there's an ex post facto violation here, these prisoners are entitled to a new parole hearing.

And I guess the--

Justice Stevens: But they're not entitled to parole.

Mr. Cole: --Absolutely, Your Honor.

Absolutely.

Justice Stevens: So that it doesn't totally invalidate the order that is at issue.

Mr. Cole: Well, the way that... that I've been thinking about it is if you put the State parole decision up on the wall and you put the Federal decision up on the wall, one of them has to come down.

The Federal decision trumps the State decision.

It can--

Justice Stevens: Well, it doesn't entirely come down.

It just... half of it comes down.

Mr. Cole: --No.

The whole thing comes down, Your Honor.

They're entitled both to an immediate new release hearing and--

Justice Stevens: But not for release.

Mr. Cole: --if they're successful on their claims, they're entitled to more frequent release hearings in the future.

So the decision, the State's--

Justice Stevens: But... but isn't it true that one aspect of your order that's under attack is they had refused to grant them parole?

Mr. Cole: --Absolutely.

Justice Stevens: And that remains.

Mr. Cole: It doesn't, Your Honor.

They have to decide that again.

That... that order is void ab initio.

It's as though it were never entered.

They have to make a new decision about whether or not this person should... should have parole and that they cannot in any way... the State cannot rely on the prior decision that they reached on that issue.

Justice Stevens: I thought the only relief they were seeking was a more prompt next hearing.

Mr. Cole: No, they... Dotson's complaint, I believe at page 20 of the joint appendix... he wants to, quote, proceed toward a prompt and immediate parole hearing in accordance with the statutory laws and administrative rules in place when the plaintiff committed his crimes.

They want an--

Justice Ginsburg: But aren't... aren't those claims moot or academic now?

Because, as I understand it, he has had another parole hearing.

So he's... with the hearing that he was seeking, he's already had another.

So he's not complaining about the absence of a hearing or... or flaws in the procedure at the hearing.

I thought that this case now reduces to a clean question about the retroactive application of the new guidelines.

Mr. Cole: --Well, it isn't a clean question, Your Honor, because exactly the same error that he alleges infected his first hearing was present at his second hearing.

If... if you look at the materials that they added to their brief at lines 3, 7, and 8 where they have the new parole decision, it's clear that Dotson's 2002 parole decision was predicated on exactly the same guidelines, exactly the same 1998 guidelines that he says violated his rights under the Ex Post Facto Clause.

So, in fact, if anything, it's made his situation worse because a Federal decision on his claims now would both necessarily imply the invalidity of his previous hearing and the 2002 hearing, and the 2002 hearing was a release hearing.

Unlike the halfway review that occurred earlier, it was a full-fledged release hearing in 2002, at which the parole board decided both that he should not get parole then and that he should not again be considered for parole until 2005.

Justice Ginsburg: Was there... maybe I'm wrong about this, but I thought there no challenge being made to the 2002 hearing.

Mr. Cole: But what Heck makes clear is it doesn't matter what you say you're challenging.

What we need to look to is what's the necessary implication of securing success on your claims in Federal court for a State decision.

Here, the necessary implication, if they're successful on their ex post facto claims, is going to be that the 2002 decision can't stand, the 1999 decision--

Justice Ginsburg: Why can't it simply be that prospectively for this class of prisoner, the old guidelines will apply, prospectively without undoing anything that's happened in the past?

Mr. Cole: --I think for the same reason that in Balisok I don't think there could have been a prospective order that said... said something like the method you have for choosing decision-makers creates fraud, bias, and deceit, on a going-forward basis you must change that method for selecting decision-makers.

Saying that you have to change it on a going-forward basis would mean, necessarily imply, that there had been fraud, bias, and deceit by the decision-maker that would mean that--

Justice Ginsburg: I think twice you started something and our questions impeded you.

But I think you were equating the parole board's decision to a criminal sentence, and so you... you were saying just as the... the Federal authority can't come in and nullify the State criminal sentence, neither can it nullify the parole board determination.

And... and I thought that the comparison between a... a sentence... a criminal conviction and sentence and a parole board's discretionary determination... you seemed to be putting those on the same plane.

Mr. Cole: --Not exactly on the same plane, Your Honor, but recognizing that this Court in Balisok said that post-judgment administrative decisions regarding the duration of confinement also count as criminal judgments that are protected for purposes of... of the Heck doctrine.

And in Greenholtz, this Court--

Justice Souter: But... but the... the generality at which you keep referring to it, with respect to conditions of confinement, is a... is a higher level of generality than anything that Balisok decided.

In Balisok, the particular decision was a decision to revoke an entitlement to be released at whatever the date the good time would give, and... and that is a much more specific... I mean, that literally affects an entitlement to be released.

It is not merely a decision with respect to length of confinement.

Mr. Cole: --Well, Your Honor, if this turns on whether or not it's an entitlement, I would agree with you that it seems good-time credits might be different from an entitlement sense than parole.

But... but all the way back, in tracing the cases from Preiser forward, the Court has talked about duration of confinement, and certainly no one can argue that the decision here is going to have dramatic consequences for the duration of these prisoners' confinement.

Justice Souter: We... we don't know what consequence it will have for the duration of his confinement.

All we know is that it will have a consequence in determining the date at which the next look will be taken by the parole board to see whether he then is in a condition to be released.

That's all we can tell.

Mr. Cole: That's correct, Your Honor, but they're... they're pressing ex post facto claims.

And as this point... Court pointed out in Garner in 2000, they can maybe bring those claims based on changes in frequency of parole hearings, but they're going to have to show a definite impact on the quantum of punishment that they receive as a result of that change.

So if they're going to be successful on their ex post facto claims, they're going to have to show an impact on the duration of their confinement.

Either they have no ex post facto claim because there's no durational impact on their--

Justice Souter: Okay.

But you're... you're assuming... your argument now is assuming that they are going to be successful on this element, that you say they've got to satisfy later.

Mr. Cole: --Right, but that's the Heck--

Justice Souter: And... and whether they are or not has nothing to do with... with Balisok and Heck.

Mr. Cole: --I... I disagree, Your Honor, because in Heck and Balisok, the Court said look to what happens if they're successful on their claims.

So I'm... we're... the State is supposed to hypothesize that somehow they're going to be successful on these claims.

We don't agree it's going to happen, but once we hypothesize that they're going to be successful on an ex post facto claim, it means they're going to have to show, have to demonstrate a durational impact on their sentence.

Justice Souter: Sure.

It also... it also means that if... if... assuming your argument is sound, if you lose this case, you win the war.

[Laughter]

Mr. Cole: At... at some level, I think there's an... an inherent and fundamental tension in their position, and... and the coin could flipped and conversely there's that same tension in ours.

Justice Scalia: Are... are you sure that that's what they have to prove, that... a durational impact?

Wouldn't it be enough to show that they were deprived of an opportunity to have the sentence shorter?

Wouldn't... wouldn't it... assuming there was an ex post facto violation, wouldn't that be enough of an injury, that they lost an opportunity to have their sentence shortened?

Mr. Cole: But, Your Honor, I believe what makes out the ex post facto claim is an increase in the quantum of punishment after they've committed their crimes.

So they need to show that as an element.

I... I see... I'd like to reserve the remainder of my time for rebuttal, if I could.

Justice Stevens: Yes, you may do so.

Mr. Lewis.

Argument of John Q. Lewis

Mr. Lewis: Justice Stevens, and may it please the Court:

This case presents a straightforward opportunity to apply the Heck rule.

Respondent Johnson's section--

Justice Kennedy: Can you tell us why... why is it still live when they... when they already received a second hearing?

Or why is not moot?

Mr. Lewis: --Johnson still has remaining claims for prospective injunctive relief in this case and, as well, declaratory relief.

What may be mooted is his claim for retroactive injunctive relief, in other words, a new parole hearing.

I think in order for him to pursue that type of a claim, he'd have to go back down to the district court.

Justice Scalia: What... what is--

Justice O'Connor: Well, put in plain language what it is Johnson is claiming he's entitled to.

I don't understand.

Mr. Lewis: Well, he... really three different things.

He's requesting prospective injunctive relief, fix the due process violations that are going on in Ohio parole proceedings.

Justice Scalia: --Which is a new... a new parole hearing.

Isn't... I mean, it... I--

Justice O'Connor: How could that be fixed?

Justice Scalia: --Yes.

How... how can it be fixed except by giving him a new parole hearing?

Mr. Lewis: Well, he does have a class action.

He filed a class action and he's trying to fix the proceeding prospectively.

It doesn't necessarily require him to have a new parole hearing.

He's still in confinement and will very likely have a new parole hearing, a new parole hearing that he wants the proceedings to be different in.

He's not necessarily asking for a new parole hearing.

He's saying--

Justice Scalia: Why isn't he?

If... if... what he's saying is the past proceedings were invalid, I want you to do it right in the future.

Mr. Lewis: --Sure.

I think that was part of his claim, which might be mooted, but he's also saying in any future--

Justice Scalia: No.

It... it isn't mooted because he still got it done wrong.

The second hearing was still wrong.

Mr. Lewis: --Well, we don't--

Justice Scalia: His claims here... his claims here are correct.

Mr. Lewis: --We don't know that for sure, but part of his claim as well is to say in future parole hearings that I'm going to be subjected to, even if you don't give me a new one, in future parole hearings that I'm going to be subjected to, I want these processes fixed to... to come into compliance with due process.

And I think that's separate and apart from--

Justice Scalia: You... you say we don't know whether the... the new parole hearing he got was still invalid?

Mr. Lewis: --I don't think there's enough in the record to determine that.

Justice Scalia: Oh, so we can assume that that was valid.

You're... you're willing to assume that for purposes of this case?

Mr. Lewis: I am not willing to assume that.

I... I don't think we can say one way or the other.

Justice Breyer: But you're not challenging it.

Mr. Lewis: We can't yet.

Justice Breyer: Okay, fine.

Mr. Lewis: We may intend to.

Justice Breyer: Then we take it as valid.

Then we take it as valid.

That's not a claim you're challenging.

But I take it your claim is in the year 2009 he will have another hearing.

Mr. Lewis: Actually 2005.

Justice Breyer: 2005?

Okay, 2005 he'll have another hearing.

Mr. Lewis: Absolutely.

Justice Breyer: And in the year 2005, I want not to have the... what are they called?

The 1998 guidelines.

I don't want my 1998 guidelines applied in the 2005 hearing because you have some theory, maybe good, maybe bad, but it's a theory that that would violate the Constitution of the United States.

Mr. Lewis: That's correct.

Justice Breyer: So you're saying he's going to have this.

I want an injunction or declaratory relief they can't do it.

Mr. Lewis: That's right, and as well, he says I want to be heard at this next parole hearing.

Now, that was... part of his due process allegations in this case were that he... he wasn't even allowed to meaningfully participate in--

Justice Breyer: And he's saying it violates the Constitution in two respects: one, they won't listen to me; and two, they apply the 1998 guidelines.

Mr. Lewis: --That's essentially it.

Justice Breyer: That's it.

Okay.

We're talking now about this 2005 hearing and he wants new procedures, and the question is, is this 1983 or is it habeas?

Mr. Lewis: That's... that's correct.

Justice Breyer: Okay.

Mr. Lewis: And... and it is section 1983 because it doesn't violate the Heck rule.

This--

Justice O'Connor: And what... what is your... what is Johnson's mootness argument?

Mr. Lewis: --Well, to the extent in his complaint he was seeking a new parole hearing as a result of the challenge to the '99 decision, that's probably mooted because he has received this 2001 hearing and we just don't know enough about it to know whether he's going to challenge it or not.

He'd have to amend his complaint in the district court.

Justice O'Connor: Could... is it possible that both Dotson and Johnson could get new hearings by a filing habeas--

Mr. Lewis: I don't think so.

Justice O'Connor: --petition?

Mr. Lewis: I don't think so.

I don't think that Johnson has a Federal habeas remedy here because the Federal habeas statute is a challenge to the legality of custody, the legality of confinement, and that's not anything that he's challenging in this case.

Justice Kennedy: What would you do if there was an allegation of a serious procedural flaw in a past hearing?

The parole commission was... was drunk or they read the wrong file or something, and it was just a challenge to the invalidity of the past hearing.

Would that be 1983 or habeas?

Mr. Lewis: I think that's a closer call, but I think it--

Justice Kennedy: That's why asked you.

Why isn't it--

[Laughter]

Mr. Lewis: --Right.

And... and I... I think it is still section 1983 if certain things are present.

That is, is he going to necessarily imply the invalidity of the duration of his sentence by winning his case?

And if that's meets the Heck rule and if he isn't, then I think he can proceed in section 1983.

Justice Scalia: Do we have any case in which what was being... what was sought to be challenged in a habeas action was not the duration of the sentence, but the procedure by which the duration of the sentence was determined?

Mr. Lewis: I don't--

Justice Scalia: Is there any... why... why shouldn't that be a habeas action?

Why shouldn't 1983 be limited to prison conditions, which is what we've always... and referred to it as... as that in the past?

Mr. Lewis: --Well, I think in the hypothetical that you've presented, Justice Scalia, if the prisoner wins the case in that particular case, then his sentence is invalidated, and I think that's the important critical factor here.

Justice Scalia: No, no, no, not necessarily.

He... he's just saying the parole hearing I got lacked due process safeguards.

Had I had those safeguards, I might... I might... have been given a shorter sentence.

I can't prove I would have.

I'm not challenging the sentence really, but I want a new hearing.

I didn't get due process.

Give me a proper hearing because I might get out earlier.

Why shouldn't that come under habeas?

Mr. Lewis: Because it's not a challenge to the legality of the confinement.

Justice Breyer: My law clerk found two cases which we've just looked at briefly.

One is called Wilwerding v. Swenson and the other Johnson v. Avery where she says that in those two cases people were using habeas to challenge prison conditions even.

Now, so there are... there are two cases that, if she's... and she's usually right... that... that... where habeas was used to challenge prison conditions.

So I've thought, well, if they can use it, they certainly could use it here.

Mr. Lewis: Well, and I... I think point with... with both of those decisions is that the Heck rule did not come into play because the prisoners must have gone through and exhausted their State court remedies, and so there wasn't an issue as to whether they must bring their claim in habeas.

Justice Breyer: No.

It was a different issue, but it said habeas could be brought.

Mr. Lewis: Sure.

I think the Court in... in that particular case--

Justice Breyer: So habeas could be brought here?

Mr. Lewis: --I don't think so.

Justice Breyer: Why not?

Mr. Lewis: I don't think there's a remedy in habeas for the respondent Johnson in this case because the first thing that's going to be asked when he goes to the Federal district court to seek habeas relief is, well, are you challenging the legality of your custody?

Justice Breyer: Yes, and they say sure... sure I am.

I'm saying I had terms.

You know, I was going to be here under conditions A, B, C, and A, B, C in my opinion mean I will be released sooner, and instead, they gave me D, E, F, and D, E, F means I'm likely to be released later.

I can't guarantee it.

That's what he'll say.

He says I can't guarantee it, but I wouldn't be bringing this case if I didn't think at least it was a shot.

Mr. Lewis: Right.

And... and... but he's not necessarily challenging the legality of his custody.

Justice Kennedy: Well, but... but that's part of the conclusion that we're going to have to reach to... to resolve the case.

Why isn't he?

How is that that much different than if a judge... let's assume, under a proper sentencing guideline scheme, the judge just uses the wrong guideline.

The man is going to go to jail for either 5 or 10 years.

We don't know which.

But that's... that's a classic habeas case.

Here, he's going to stay in a prison for 5 or 10 years.

We don't know which.

Why isn't this a classic habeas case?

Mr. Lewis: Because I think in... in the first hypothetical, Your Honor, that... that you gave, the challenge, if successful, would... would completely invalidate the sentence that he received.

They'd have to redo the... the sentence.

And... and I think that's the critical distinction in this case, is that when Johnson files his complaint, he has a 10 to 30-year sentence by the... by the State court.

If he wins, he still has a 10 to 30 year sentence.

Justice Kennedy: Well, it wouldn't completely invalidate the sentence.

We know that he's still going to be held and he's going to be held in custody.

It's a question of how long, which is exactly what this case is.

Mr. Lewis: But in the hypothetical you propose, Justice Kennedy, the... the prisoner was actually... would be actually challenging the sentence he received, and by winning the case, he's going to undo the State court sentence.

Justice Scalia: Yes, well, those cases happen to involve... happen to involve sentences.

This case doesn't involve a sentence.

It involves an opportunity to have his sentence shortened.

And if habeas can be brought for that, we would phrase it differently.

We wouldn't say it would have to invalidate the sentence.

We would say it would have to invalidate the proceeding that could have shortened his sentence.

I grant you we can't use the same language we did in the earlier cases, but if this is properly a habeas action, then we... we can get some language to make it fit.

Mr. Lewis: Well, I don't... I don't think it is properly a habeas action.

I think even in the decisions where courts may have heard similar claims in habeas, I think it was a matter of just saying, well, the prisoner is already here.

He's already exhausted all of his State court remedies.

It doesn't really matter whether it's section 1983 or habeas.

Justice Breyer: Suppose we wrote an opinion that said, whatever the reasoning... I don't know what it would be right now... that said in the future your client should go ahead in 1983.

I'm putting you in a slightly awkward position, so don't answer if you don't want to.

But I mean, for the future all these cases will be brought in habeas.

Now, suppose that's what the opinion said.

We're absolutely making it clear just what the... would there be any harm done?

Mr. Lewis: I... I think there would be.

Justice Breyer: Now, what would that harm be?

Mr. Lewis: I think that by... by having a rule of that sort, that it would be expanding the jurisdiction of habeas and it would start to swallow up otherwise cognizable section 1983 claims.

Justice Breyer: And why would that be bad?

Justice Souter: And why--

Mr. Lewis: I'm sorry?

Justice Breyer: Why would that be bad?

Mr. Lewis: Well, because the Congress has enacted a statute--

Justice Breyer: No, no.

But I mean, is... I'm asking you a practical question as a practicing lawyer.

Would it be bad?

Mr. Lewis: --Absolutely it would.

Justice Breyer: Because?

Mr. Lewis: Because there's a statute that allows--

Justice Breyer: Well, I mean, leaving aside... Congress changed the statute.

It says absolutely it's going to be habeas.

Is there any bad consequence in the law?

Mr. Lewis: --It's going to give States a license to violate civil rights that will otherwise not be protected under the statute.

Justice Breyer: We'll catch them in habeas.

Mr. Lewis: Yes, but the... the State exhaustion requirements in habeas are much tougher.

Of course, the State wants them to have to go through State exhaustion.

Justice Breyer: Ah, so it comes down to that.

Mr. Lewis: That's really the critical--

Justice Souter: --You said... you said a moment ago that it would be expanding habeas, and I'd like you to expand on that.

It would be expanding habeas, I am assuming, because in every successful habeas case, the ultimate remedy that the court can order, if the State does not snap to it, is the immediate release of the prisoner.

And I take it when you said it would expand habeas, it would expand it because this would not be an immediate release case no matter what.

Is that correct?

Mr. Lewis: --That's correct.

Justice Souter: Okay.

Mr. Lewis: You would basically end up going to a Federal district court seeking habeas relief asking for processes to be changed prospectively.

Justice Souter: And that's why they could not bring habeas in this case because if they won, they still would not have shown anything that entitled to them to get out now or get out now unless the State within 30 days does something.

Is... is that the nub of it?

Mr. Lewis: That's... that's really it, Justice Souter.

Justice Kennedy: Well, I'm... I'm not sure.

It depends how you formulate the order.

The... the judge says, I'm going to order this prisoner released unless, within 6 months, he has a parole hearing under the guidelines I set.

That's the way the habeas statute works.

Mr. Lewis: Well, if that's the relief that the... the prisoner was seeking, I think that is clearly a habeas claim.

But that's not what Johnson is claiming in this case.

He's not asking for entitlement to release at all.

He's asking for the processes to be changed prospectively for future parole hearings, and he's asking for declaratory relief.

Justice Souter: Regardless of what he's asking for, if he got what he wanted, he still would not be entitled to any immediate release.

Mr. Lewis: That's absolutely correct.

Justice Souter: He would still have a sentence of X years, and the question is, how often are we going to look at him to decide when, within X years, we may let him out.

Is that--

Mr. Lewis: That's... that's absolutely it.

He cannot... by winning his case, he's not going to shorten his sentence in any way.

And that's... that's a big distinction from the Balisok case where there was an automatic entitlement to a shorter sentence--

Justice Kennedy: Well, he might--

Mr. Lewis: --for Balisok in that case.

Justice Kennedy: --he might shorten the term of his confinement.

Mr. Lewis: Might but not necessarily.

And this Court made very clear most recently in the Nelson decision--

Justice Kennedy: Well, you could say the same thing when you're challenging the sentence.

He might but he might not.

We're just... we're just hearing the case.

Mr. Lewis: --I think a challenge to the sentence necessarily invalidates that sentence if you win.

But a challenge to parole is much different because you're not affecting the sentence if you win your case.

And the term necessary is completely necessary to the Heck analysis, as this Court made clear most recently in the Nelson case from last term.

Justice Souter: --That's the nub of it I guess.

The fact that he may be granted parole has no implication for the validity of the sentence.

Mr. Lewis: That's absolutely right.

Justice Souter: In fact, it assumes the sentence is valid, but that he will probably stay clean if he gets out.

That's all it means, isn't it?

Mr. Lewis: That's really all it means.

And this Court last term in Muhammad in... in footnote 1 made clear that the incarceration that matters for this analysis is the... in the incarceration of the sentence from the State court.

And I think that's... that's what the Court needs to look at, is what is Johnson's effect on the State court judgment or sentence.

What's the necessary implications?

Not in this case at all.

And really, this case I think has already been decided by Wolff.

It's something that the petitioners sort of don't mention too much in their briefs.

In Wolff, the prisoners in... in that case were trying to get their good-time credits back.

I think this is an easier case than the Wolff decision.

And what the Court did was parse out, okay, you can't get your good-time credits back, but you can seek prospective injunctive relief to fix the processes that are used in connection with depriving prisoners of good-time credits.

And that's precisely what Johnson is seeking here.

Your Honor, the other thing I wanted to mention was the notion... Your Honors, the other thing I want to mention was the notion that there's no State review of these decisions.

The Prison Litigation Reform Act clearly provides for State administrative review of even challenges to the process.

So the... the State of Ohio could easily set up an appeal process administratively to... to correct that problem.

Justice Stevens: Thank you, Mr. Lewis.

Mr. Lewis: Thank you.

Justice Stevens: Mr. Untereiner, is it?

Argument of Alan Edward Untereiner

Mr. Untereiner: Yes, Justice Stevens.

Justice Stevens, and may it please the Court:

I'd like to, first of all, go to the point that Justice Ginsburg raised about the allegations in Mr. Dotson's complaint.

This case has... has become much simpler with respect to Dotson because any claim that he might have had about this 2000 scheduling decision has been mooted.

What's really left are claims for future injunctive relief, for prospective relief.

These are classic 1983 type cases.

Prisoners have been bringing lawsuits since Wolff against McDonnell alleging that parole procedures and other kinds of procedures, disciplinary procedures ought to be reformed and seeking future injunctive relief with respect to those kinds of... of procedures.

In Edwards against Balisok, this Court indicated that ordinarily claims for prospective injunctive relief will not be barred by the Heck doctrine because ordinarily they will not call into question or necessarily imply the invalidity of any previous decision.

So to Justice Breyer's question, this would require a change in the law, and it would, I think, fairly substantially cut back on the kinds of suits that have been brought for 30 years under Wolff because in all kinds of suits like this, the State would argue, as the petitioners are arguing today, that there's some prior administrative decision that's called into question by a future claim for injunctive relief with respect to some aspect of the procedures relating to good-time credit revocation or parole or the revocation of probation.

So I think this would be a fairly substantial change in the law.

A lot of these claims would be barred by Heck.

The... Justice Scalia, you asked the question about the habeas, the scope of habeas relief.

And I think it's important to understand that the lower courts have generally held that habeas is not available for these kinds of claims that are prospective only, seeking changes in future procedures.

There are some lower court cases that say that where a prisoner seeks release on parole and demands a right or claims a right to release on parole, that might be cognizable in habeas, but the vast weight of authority in the lower courts is that claims that only seek an... the right to a new parole hearing, the outcome of which is completely discretionary--

Justice Kennedy: You want a 1983 hearing in which a United States district judge tells the parole commission, now, here are your marching orders for future cases.

You have to comply with this rule, that rule, this rule.

What is an analog that you can give us where United States courts have done this under 1983?

Using an administrative case, if the... if the agency does it the wrong way, we reverse that decision.

It would be like a review of a conviction that's not final.

Have we had cases where under 1983 litigants come in and say, now, these agencies are doing it the wrong way?

You have to... can you give me an analog?

Mr. Untereiner: --I think there... there are a fair number of cases in the lower court where... lower courts where these types of claims for injunctive relief have been brought and the Federal courts have ordered, on a prospective basis, that the States conform to all kinds of... I mean, Wolff is a case like that I think where the... the State was required to do certain things in the future.

So I think these are ordinary 1983 claims for injunctive relief.

Justice Ginsburg: Is there any significant difference between this case and Wolff?

I mean, Wolff was a case of procedural fault supposedly, and if those faults were cured, someone would have a better chance at getting good-time credit.

Wasn't that what--

Mr. Untereiner: Yes.

Justice Ginsburg: --So it seems to me it's very... very close to your situation.

Mr. Untereiner: It is very close, Justice Ginsburg.

Dotson is essentially making two claims for prospective relief.

He is saying that these 1998 parole guidelines effectively rescind his eligibility for parole.

At the time of his conviction, he was entitled to parole after serving 15 years.

Under these guidelines, he'll have to wait till... until 32 and a half years have passed before he's eligible for parole.

And he's claiming that in... in his next parole release hearing, which is in June 2005 and beyond, the State is required to apply the old rules to him so that he'll be eligible.

So this is very much like what was at issue in Wolff.

The second claim he has is that he's entitled to annual parole release hearings in the future.

Again, it's a future... it's a prospective claim only.

In the future, he will be entitled to annual parole release hearings, and the new rules say that the State can postpone those hearings for up until 10 years.

So on both of those claims, he is seeking changes in the future, and these are classic 1983 type cases that have been brought, as I say, for the last 30 years in the lower courts.

Now, the Heck test requires a showing that if he prevails on his section 1983 claims, he would... that would necessarily imply the invalidity of his underlying conviction or sentence.

And I think this case is very different from the Balisok case.

There... there was a colloquy about that earlier.

I think that Balisok is clearly distinguishable because the administrative decision there would have had an immediate and direct impact on the duration of the prisoner's sentence by... by revoking the good-time credits.

Whereas, here, the impact is very, very speculative.

Justice Souter, you referred earlier to a durational consequence.

The durational consequence here is really quite hypothetical and remote.

If he prevails on his 1983 claims, all he will be entitled to are future hearings, and since parole is entirely discretionary in Ohio, we can't predict the outcome of those proceedings.

He'll also be entitled to... merely to be considered eligible for parole in the future.

So I think that the... the consequences... any impact on... on the duration of his confinement is... is really quite hypothetical here and it would require an expansion not only of the Heck rule but also of habeas jurisdiction to resolve this case in the State's favor.

Unless there are any further questions, we would ask that the Court affirm the Sixth Circuit's unanimous decision in favor of Dotson.

All 11 members of that court found that Dotson's claims were not barred by Heck, and this Court should affirm.

Justice Stevens: Thank you, counsel.

Mr. Cole, you have about 4 and a half minutes left.

Rebuttal of Douglas R. Cole

Mr. Cole: Thank you, Your Honor.

A number of points.

I wanted to start by responding to Justice Souter's question, which was again asking about this need for entitlement to earlier release as part of habeas, and would ask the Court to consider the In re Braden case where a prisoner in Alabama was seeking to challenge a detainer that had been issued by Kentucky.

And the basis for the challenge to the detainer in habeas was the fact that it was having implications for his parole eligibility in Alabama.

So there, there was not going to be necessarily an entitlement to earlier release, but simply a difference in the parole considerations.

Second, Justice O'Connor, with respect to your questions about mootness, the only point that I would add is that if this case is moot now, it was moot when the Sixth Circuit decided it as well.

So if mootness is the direction we're going, I think there need to be a decision vacating the judgment below--

Justice Kennedy: Well, what's your position as to whether or not it's moot?

Mr. Cole: --Your Honor, we don't believe it's moot either, and in... in fact, for two reasons.

First, once again, it's threatening consequences for an existing decision, albeit it not the one that was originally threatened or where invalidity would be implied below, but there is a new one where that would have that consequence.

In terms of bad consequences, I think the single biggest bad consequence of directing these prisoners to 1983 rather than habeas is it's going to deprive them of the opportunity for meaningful relief in Ohio's courts.

The Layne decision in the last... decided just 2 years ago, three prisoners brought a declaratory judgment action about the way parole works in Ohio.

They were successful and their case resulted in 3,000 prisoners receiving--

Justice Ginsburg: But... but you raise deprivation of the benefit they would get from the Ohio courts.

If they wanted that benefit, they could have brought a 1983 action in State courts.

State courts have jurisdiction.

So it's a little odd for you to say, oh, they're being deprived of a benefit when they're telling you by this very lawsuit they don't want it.

Mr. Cole: --That's true, Your Honor.

At the same time, this... bringing this... this case in 1983 in Federal court means that they're not going to be able to get injunctive relief on State grounds under the Pennhurst doctrine.

So they are depriving themselves of a chance to get that type of meaningful relief that Ohio courts are offering and that courts in other States are offering.

The other... the other point I wanted to make is that with respect to Petitioner Johnson's argument, his understanding of sentence, that if it doesn't impact the sentence, it can't be in habeas, would mean that parole revocations can't be in habeas either.

A parole... parole... when you're on parole, you're still serving part of your sentence, as he understands it, part of the initial term that the court has imposed upon you.

Granted, you're not doing it in prison, but a parole revocation wouldn't impact your sentence.

It would merely bring you back into prison to serve the remainder of your sentence rather than having you serve it on the street.

So I think that understanding of sentence can't make sense for... for habeas purposes.

Justice Scalia: I think sentence means custody.

Don't you think it means custody?

Mr. Cole: Well, but to the extent we're talking--

Justice Scalia: The custody you've been sentenced to?

Mr. Cole: --But to the extent we're talking about duration of custody or duration of confinement, again, the claims here do have a... success on the claims here would have a meaningful impact on the duration of confinement.

This Court in Muhammad said... I think this is probably the... the closest quote on point... challenges to particulars affecting the duration of confinement are the province of habeas corpus.

This is a challenge to a particular, the parole procedures, that's affecting the duration of their confinement.

Or at least that's their allegations, and that's what success on their claims is going to mean.

And because of those durational consequences, as well as because of the consequences of success on the merits for previous State parole decisions, we believe that those claims are better routed to habeas than to 1983.

If there are no further questions.

Justice Stevens: I had one further question.

Are you asking us to change anything in Wolff against McDonnell, or can we follow that case?

Mr. Cole: I think we can follow that case as it's been reinterpreted in Heck.

Wolff said that... well, Heck said that Wolff was about challenges that would not... and I believe the language is... necessarily vitiate the underlying decision.

So the way Heck understood Wolff was that the procedural challenges there, with regard to the prospective relief they were seeking, were not the type of relief that would necessarily vitiate any decision that had already been made.

Here, by contrast, the claims that they're bringing, the ex post facto claims, if they're successful on the merits, would necessarily vitiate the decisions that have gone before.

Thank you, Your Honors.

Justice Stevens: Thank you, Mr. Cole.

The case is submitted.

Attribution:

The Oyez Project

Featured:

Miller-El v. Dretke - Oral Argument

Fri, 09 Jan 2009 14:49:02 +0000

Case:

Miller-El v. Dretke

Media File:

03-9659_20041206-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Seth P. Waxman

Justice Stevens: We'll hear argument now in the case of Miller-El against Dretke.

Mr. Waxman.

Mr. Waxman: Justice Stevens, and may it please the Court:

In Hernandez v. New York, this Court explained that there are exceptional cases in which the totality of evidence surrounding jury selection is so strong that a finding of no discrimination is simply too incredible to be accepted by this Court.

This is that exceptional case, a case in which even on collateral review, the sheer weight of the mutually reinforcing evidence renders objectively unreasonable the State court's conclusion that race did not motivate even one of the prosecution's peremptory strikes.

Justice O'Connor: Do we have to find that the strike of at least one African American prospective juror was race-based for you to prevail?

Mr. Waxman: I believe so.

You have to find, Justice O'Connor, that race was the but-for factor or the tipping factor, not the only factor, but the but-for factor for at least one to come within the four corners of Batson.

Now, I could argue I think, if I needed to in this case, that the jury shuffle evidence alone, which is an unexplained, blatantly race-based means of racially excluding jurors from the venire, comes within Batson, the Batson proscription itself, or I could argue that case too.

Justice Kennedy: Were there any... were there any State decisions, or Federal court decisions for that matter, justifying the shuffle on the grounds of... I don't know... professional class versus working class or something like that?

Mr. Waxman: The State has in its brief in this case, on this trip to the Court... the State has cited the Court to one other case in which the Court of Criminal Appeals acknowledged the State's justification in that case, that it shuffled because there was a member of the probation office in the front row that they didn't want to embarrass and that jurors in the front had tended more to have ties than jurors in the back.

That is... that was never claimed in this case.

We have, from the very--

Justice Kennedy: Were there... were there any State court cases said that... or even in that case you're referring to... that the shuffle usually is race-based?

Mr. Waxman: --You know, I can't... the case is called Ladd v. State.

There is... there's some... now some reasonably substantial Law Review commentary in the State of Texas.

I cited the Court to... to one in the Houston Law Review or the Houston Bar Review when I was here last time, and there has since been one in the St. Mary's Law Review that says this is a procedure that is used to discriminate on the basis of visual preference.

And what's particularly interesting about it in this case is there was a contemporaneous objection in week 2 and week 3 and week 4 that the State was doing this based on race, and the State offered no defense at the time.

It offered no defense in the subsequent Batson hearing.

It had no explanation before the magistrate, the district judge, the Fifth Circuit, in this Court or below, and now in this Court this time it says, well, there's this other case in which the reason given was that we didn't want to embarrass the probation officer and we didn't... and we had people who had ties in the front row.

There is no evidence whatsoever in the record that would justify those excuses here.

And the evidence in the... the only evidence in the record that seems to me compels the conclusion that this was done for the deliberate purpose of minimizing the number of African Americans on the jury.

And it was done by prosecutors, each of whom... there were two prosecutors in this case, each of whom was found to have violated Batson in criminal... other criminal trials contemporaneous with this one.

And--

Justice Ginsburg: And the... and the Fifth Circuit's answer to the jury shuffle was, well, the defense shuffled more times, as I--

Mr. Waxman: --The Fifth--

Justice Ginsburg: --as I recall.

Mr. Waxman: --The... the Fifth Circuit said that we... that they shuffled twice and we shuffled five times.

Now, that is both factually wrong and legally irrelevant.

They shuffled three times and they tried to shuffle a four times... a fourth time because, the Court will perhaps recall... this was discussed in the Court's last opinion... because they waived in the fourth week.

The defense shuffled... the defense then shuffled and they tried to come in and back... back and shuffle again when a number of African Americans were advanced in the order.

There... under this Court's Batson jurisprudence, the proscription against using peremptory strikes for a racial purpose or a gender-based purpose is proscribed to the defense, as well as the prosecution, but there... the one doesn't excuse the other, and there has never been a claim, nor is there a factual predicate laid in this case for a claim, that Mr. Miller-El's trial lawyers were doing the same.

Even if it were true, it would not justify what they did.

Now--

Justice Kennedy: If... if we find or if there is a finding that the... that the attempted shuffle on this fifth try was race-based, does that win your case, even though the shuffle didn't take place?

Mr. Waxman: --Well, it was the--

Justice Kennedy: I mean, does it show the necessary animus so that it carries through the whole case?

Mr. Waxman: --I think, if I needed to... I mean, we... we've argued that the shuffle, just like the race coding of the cards in the pre-Batson era, the disparate questioning on minimum punishment and the graphic script, all reinforce what we think the record shows with respect to each of the six peremptory strikes that we challenge--

But if we didn't have that, Justice Kennedy, I would be here arguing that if I could show a single strike that was made for the purpose of eliminating African Americans from being considered for jury service, that that ought to come within this Court's proscription of Batson.

Now, we haven't made that freestanding claim because I don't think we need that freestanding claim.

The jury shuffle is a practice that exists only in the State of Texas and, to my understanding, has ever existed only in the State of Texas.

So it's a... it's a very peculiar phenomenon, but I think I could make the argument that, look, even if there weren't any of these six... let's say they shuffled it so successfully that no African Americans came up.

There simply were no African Americans out of the 108 who were questioned.

It seems to me that that in and of itself would violate at least a generous reading of Batson.

Justice Scalia: Mr. Waxman, we really have to examine your... you know, your allegations, I suppose, one at a time.

It makes it a very complicated case.

The... the State's response to... to your argument that two of... of the State's attorneys involved in this case had been found to have made racially based strikes in the past... the State's response to that is that that was not part of the evidence presented in State court, and therefore, it... it is not a proper consideration in reviewing the State court decision.

What... what is your response to that?

Mr. Waxman: I think that's wrong.

I think it's wrong, first of all, because those two cases had been decided by the Court of Criminal Appeals at the time it considered the Batson claim in this case.

Justice Scalia: Was it brought to the attention of the court?

Mr. Waxman: I... I am not sure.

I don't have the... neither the transcript nor the briefs are available for that argument.

But it's... the court... they are judicial decisions of that court.

The Court can take judicial notice of them and they are evidence.

Justice Scalia: Oh, my.

You mean anything out there that... that a court could take judicial notice of can be... can be charged to the court?

My goodness, no.

I think it was the burden of the... of the defendant challenging the... the strikes to bring... bring that to the attention of the court.

My goodness.

Mr. Waxman: Even... I understand your argument.

I can't tell you for sure... and I don't believe anybody can... whether those cases were or weren't argued before the Texas Court of Criminal Appeals because my understanding is... I don't... I have not seen the briefs that were filed in the Batson appeal, and I don't have the transcript of the argument.

Justice Souter: Were... were both of the cases cases of the Texas Court of Criminal Appeals?

Mr. Waxman: Yes, yes.

Justice Souter: Decided by the court... the Texas Court of Criminal Appeals.

Mr. Waxman: Yes.

The... the very same court.

And in any event--

Justice Kennedy: Well, now, Nelson... there's Macaluso?

Mr. Waxman: --Macaluso.

Justice Kennedy: Macaluso and Nelson.

Nelson wasn't involved in the jury selection in this case, was he?

He came in--

Mr. Waxman: He certainly was.

Justice Kennedy: --I thought he came in after... after the jury had been selected.

Mr. Waxman: No.

That was Mr. Kinne had the chickenpox, so the jury was... the... the voir dire took place.

Mr. Macaluso and Mr. Nelson alternated the voir dire examination in the case, and those were the two prosecutors, Mr. Macaluso in the other Miller-El... in the Chambers case and Mr. Nelson in Mrs. Miller-El's case.

And interestingly, what the Texas Court of Criminal Appeals said with respect to Mr. Macaluso in the Chambers case is not only that he removed five out of five African Americans for reasons that violate Batson, but the Texas Court of Criminal Appeals also noted that he was using the same minimum punishment ploy that he used in this case in order to disqualify African American jurors.

He... the court actually goes and says, you know, with three of these people, the State tried to disqualify them by asking them an open-ended question about what they thought the minimum punishment should be even though that's usually what the defense is concerned about.

Precisely what happened in this case.

Now, I'm not suggesting, Justice Scalia, that our case depends upon the... this 404(b) evidence or not, and I think it's quite--

Justice Scalia: I mean, that's the problem.

We've got to go through each one of them one by one.

Mr. Waxman: --Well, I--

Justice Scalia: And... and I'm... you know, I don't remember the names of people involved in... in prior cases in this Court.

I... I... you know, if we said--

Mr. Waxman: --Justice--

Justice Scalia: --you had this same officer before you, my goodness, I... I wouldn't remember it.

Mr. Waxman: --Justice Scalia, a... first of all, these... each of these cases was tried within months of Mr. Miller-El's case, and a finding by a... the State's highest court that a prosecutor has engaged in intentional, deliberate, race discrimination in the selection of a jury I respectfully submit... I certainly hope is not the kind of everyday finding that is easily forgotten.

But in any event, you... yes.

You have to go through all of the evidence in the case, and what the evidence in the case shows is that, first of all, as this Court observed the last time it was here, the State's proper race-neutral rationales for striking African American jurors pertains just as well to white jurors who were not challenged and who did serve.

It's... you also have to look at the race-coding of the cards, race-coding that was done by prosecutors whom this Court observed last time were trained in an office culture suffused with bias against African Americans in jury selection.

And you also have to look at, with respect, the remarkable disparity in the way in which African American and white venire members were questioned, both with respect to minimum punishment--

Justice Stevens: May I--

Mr. Waxman: --and with respect to the graphic script.

Justice Stevens: --May I ask on the minimum punishment ploy?

Did that ever work in this case or did any of... of the trial judges ever grant a... a challenge for cause on the basis of the use of the minimum punishment ploy?

Mr. Waxman: Well, I can't speak to other cases.

But what's truly remarkable about this case... I mean, there are many things that are truly remarkable about this case... the State not only used this minimum punishment ploy with 90... 7 out of 8 of the African Americans, as opposed to only 2 out of 36 of the whites, but it actually tried to remove 2 of the African Americans in this case: Rand and Kennedy.

It submitted them for cause based on their answers to those questions.

And then interestingly, when that was denied and the State had to justify its... to provide its race-neutral reasons for striking them, it didn't even mention it.

Justice Scalia: Their response--

Justice Stevens: But you... you haven't really answered my question yet.

Mr. Waxman: Oh, I'm sorry.

Justice Stevens: Does any... did any Texas trial judge, to your knowledge, ever fall for this ploy, ever grant a... a challenge for cause based on answers to the minimum punishment harangue?

Mr. Waxman: I... I would defer to Ms. Bunn about that because I don't know about other cases, but--

Justice Stevens: I didn't see any in this case.

Mr. Waxman: --Well, what happened in this case was there was an effort to rehabilitate.

The trial judge actually became quite energetic in trying to explain to the juror that, well, it's 5 years and you're not saying that you couldn't possibly consider 5 years.

But... and that was true with respect to white jurors as well as African American jurors.

Justice Scalia: --The respondent's reply to this... this minimal punishment argument is that in fact the... the two white prospective jurors who had... who had expressed antagonism towards the death penalty were subjected to the same questioning, and that the seven out of eight black prospective were seven who had expressed antagonism to the death penalty.

Now, is that not true?

Mr. Waxman: I think that if I... I believe that with respect to minimum punishment, as opposed to the graphic script, what the State is saying is last time we said there were 10 whites and 10 blacks who expressed hesitation.

And this Court observed that, well, yes, but only two of the whites got it.

Now, they filed a brief that says, well, the other eight were all either struck for cause or by consent.

Now, that's... that fails for at least two reasons.

One, they identified 10.

In this Court and below, we identified 19 jurors who absolutely expressed hesitation about the death penalty, and they have still not accounted for them.

Number one.

Number two, with respect to the eight who they have accounted for in their brief, the fact that at the very end of voir dire, they were struck for cause, or there was an agreement at the end of voir dire to remove them hardly provides a reason not to give the minimum punishment ploy to jurors who fit the categorization that the State has described.

Justice Scalia: Well, we have to go through each one of them and see if the degree of hostility expressed by the white jurors was the same as the degree of hostility expressed by the black jurors.

And in fact, the degree of hostility by the black jurors was quite high.

Mr. Waxman: Well--

Justice Scalia: One said I really don't believe in it.

I support it only in extreme cases, such as those involving mass killings or mutilation.

And another one... another one said, well, right now maybe I do, but who knows later?

Mr. Waxman: --I--

Justice Scalia: Now, if... if there happens to be a different attitude towards the death penalty among the black jurors than there is among the white jurors, you cannot fault the... the attorneys for... for striking more of the black jurors.

Mr. Waxman: --Justice Scalia, in the context of all of this other evidence, which is the context in which you need to weigh it and determine whether we have satisfied the stringent standard for review that applies, I respectfully submit that if you go through the... the voir dire questioning of Mr. Fields and Mr. Warren and Mr. Rand and the others that we've mentioned, and compare it, even leaving aside all of the other evidence, contemporaneous evidence, of race discrimination in the jury selection in this case, I think you will have to come to the conclusion that race was a but-for factor in these cases.

In Mr. Fields... we've... we've mentioned him in our... we've described him at length in our brief.

This is a man whom... I mean, forget the... the State on its questionnaire at the time, on page 14 of the joint lodging, wrote, quote, no reservations against the death penalty.

Mr. Rand, who we've compared and... and your concurring opinion, Justice Scalia, the last time it was here said, well, yes, Rand and Mazza are very close, but it's a high burden you have to... you have to overcome here.

It's a burden we can overcome here not only because of all of this other evidence, but because of what the State wrote on the questionnaire when Mr. Rand was being examined, page 30 of the joint lodging.

This is the State's notes.

Quote: could be enforced depending on the circumstances.

Murder/robbery, type of offense.

Think proper for death penalty.

Yes, I can serve.

This is a... this is a venireman who said that if he were Governor, he would set the minimum punishment for murder at 99 years.

Mr. Fields was--

Justice Scalia: Well, now, wait.

He also said... when asked whether he could vote to impose the death penalty, he said, right now I say I can, but tomorrow I might not.

Mr. Waxman: --He said--

Justice Scalia: Do you think that's a strong--

Mr. Waxman: --I'm... I'm not sure whether that's Rand or Warren, but I'm saying that if you compare Mr. Rand who thought that the death penalty might be applicable for all murder, who repeatedly... in our reply brief, we include the... the recitation... repeatedly said over and over and over and over again that he would answer the three questions yes, depending on the evidence, without any regard for his view about the death penalty, who testified that... I'm not saying that this is somebody whom, if this were a case in which there was nothing in this... we were just before this Court saying there's Rand and Mazza or there's Rand and Hearn and that's enough to satisfy our burden, I would be up here arguing it but it would be a much more difficult argument.

Here, those... that comparison has to be taken in the context of not one, not two, but six jurors who are similarly situated who were treated to this questioning by people who engaged in racially disparate shuffling, racially disparate questioning--

Justice Ginsburg: Well, that's the question.

Justice Scalia: --We have to deal with each of the six one by one, and... and they have arguments with respect to each of them.

I don't care what Rand said.

Those things that you said sounded very good.

But if he finishes it off by saying, right now I say that, but tomorrow I might not--

Mr. Waxman: --Well, I--

Justice Scalia: --that doesn't strike me... and that... that's what respondent says Rand said, not... not one of the other ones.

And you have to go down each of the other six, and they have a response for each one.

Mr. Waxman: --And if this--

Justice Scalia: I mean, and... and, you know, a buckshot attack on it has to be examined pellet by pellet.

Mr. Waxman: --Justice... let me... let me switch your metaphor a little.

The problem with the State's approach to this case... and it was the problem that... of the Fifth Circuit's analysis... is it is pointillistic.

It is an analysis.

It's like walking up close to a Seurat painting and looking at each dot and saying, well, it's red, but that might not necessarily be the handbag.

Yes, you have... I mean, he had to paint with the dots, but as a reviewing court, you need to step back and look at this and ask yourself, with respect to, for example, Mr. Fields, who said not only would he have no hesitation about putting the death penalty in place, but he actually testified that he thought that in capital cases, the State was God's embodiment on earth.

Justice Kennedy: Suppose that you have 10 white jurors and 10 black jurors.

The 10 black jurors are all questioned much more extensively by the State, and in each of those cases, there is a plausible reason for excusing.

A relative was... served time and so forth.

Violation?

Mr. Waxman: All in and of itself?

I would say definitely not.

I... I mean--

Justice Kennedy: So... so then you admit that you have to go one by one.

I had thought you would... would have said that if the black jurors are questioned in a different way and more intensively, that alone suffices even though the questioning in each case disclosed the basis, plausible, non-racial basis--

Mr. Waxman: --No, I would give--

Justice Kennedy: --for excusing them.

Mr. Waxman: --I would give you a different answer, Justice Kennedy, if it's the jury shuffle because there's no plausible explanation available on the evidence in this case.

If there is a plausible explanation for disparate questioning, which there is not in the statistics in this case, I wouldn't be arguing that that in and of itself, leaving aside individual, you know, side-by-side juror comparisons, would suffice.

But here, we have, in addition to the disparate questioning that is not susceptible to a race-neutral explanation... we have things like the prosecutor's own notations in the... in the questionnaires.

Justice Ginsburg: Mr. Waxman, you were dealing with Fields, and the answer in Fields' case that the prosecution gives is he had a strong feeling about rehabilitation, and so he was... he thought that everyone could rehabilitated... rehabilitated.

So that shows he... he wasn't like others who didn't entertain those doubts about rehabilitation.

Mr. Waxman: Yes, Justice... Justice Ginsburg.

He... he expressed an opinion that he thought that people could be rehabilitated, not as strong as those opinions by juror... white Juror Hearn and white Juror Duke who sat.

But in Fields' case, he was absolutely unequivocal... I'm... I'm referring the Court to page 185 of the joint appendix... absolutely unequivocal that the ability or propensity for rehabilitation would not affect his willingness to... to put in the death penalty.

I believe in the dissenting and concurring opinions in this case last time with respect to Mr. Fields, it was pointed out that he was a supporter of the death penalty who could put in the death penalty.

And what's interesting about Fields is if you look at the transcript pages where the prosecutor justifies the strike, on page 197 of the joint appendix, the prosecutor says, well, he was... he... he... I... he... he said something about rehabilitation, and it goes on.

And then two pages later... they have a discussion about something... a discussion about which questionnaires will or won't go into evidence.

Two pages later, Mr. Nelson comes in and says, oh, yes, and he also had a brother who had had some involvement with law enforcement.

Well, to say that that's an afterthought is really saying something.

He wasn't questioned about it, as... as neither were... by the State, as neither were any of the four white jurors who sat who had family members who had been arrested or prosecuted.

They didn't even ask these questions.

May I reserve the balance of my--

Justice O'Connor: Was there any evidence that the jury cards in this... in the actual trial were marked or noted on the basis of race?

Mr. Waxman: --Oh, absolutely.

Justice O'Connor: Where do we find that evidence?

Mr. Waxman: The... the juror cards are in the joint lodging beginning on page 82, and every single card lists the gender and race, even the cards as to jurors that they never questioned.

So we know that these were notations that were placed on the cards by the prosecutors at the time the venires were called.

And the interesting thing about these is it's not just race and gender, it's were they fat, did they have a beard, did they have a mustache.

If you map up what's noted on these cards with the Sparling training manual that said don't take minorities, don't take Jews, don't take women, don't take fat people... people who have mustaches and beards don't make good jurors.

It's... these prosecutors were not only trained by that manual, they learned their lesson very well.

May--

Justice Scalia: All of those things are okay, right, except the race one.

Mr. Waxman: --Well, I--

Justice Scalia: I mean, maybe their right about beards and mustaches.

Mr. Waxman: --We know that--

Justice Scalia: I don't know.

If they're right, good for them.

Right?

You... you... they ought to strike them.

Mr. Waxman: --I... we're not here... if this were gender or race, this Court has said that can't be the but-for reason.

Mustaches, overweight, you know, go with God.

May I... may I reserve the balance of my time?

Justice Stevens: Yes, by all means.

Mr. Waxman: Thank you.

Justice Stevens: Ms. Bunn.

Argument of Gena A. Bunn

Ms Bunn: Justice Stevens, and may it please the Court:

The big picture.

The majority of African Americans summoned for jury duty in this case were either opposed to the death penalty generally or unwilling to impose it, while the majority of white jurors had no qualms about the death penalty.

Striking prospective jurors based on their case-related views which, after the fact, correlate with race is not unconstitutional.

Essentially, though Miller-El has presented this case as one of disparate treatment, it is actually one of disparate impact.

I will discuss first--

Justice Kennedy: Would... would the statement that you gave... let's assume there was a... a working premise that blacks were more... were less inclined to impose the death penalty.

Would that alone justify more intensive questioning of every black juror?

Ms Bunn: --No, Your Honor, it would not.

And the record in this case actually does not support that that... does not support a proposition that black jurors were questioned differently.

Most significantly, the minimum... the questioning on the graphic script.

Of the six challenged jurors in this case, only two received the graphic... graphic script at the outset of their voir dire, Carrol Boggess and... and Wayman Kennedy, both of whom had answered the questions in their juror questionnaire indicating ambiguity regarding their views on the death penalty regarding their support for the death penalty.

This fact--

Justice Breyer: Now... now, as I understand it, this case was here before.

We all read this and we went through it, and as a result of that, I... if I read the opinion... not the dissent, but the majority opinion... and it might be in my interest if people followed dissents more, but I think the law is we follow the majority opinion.

So when I read the majority opinion, I read, number one, there was history in this county, at least 7 years earlier though, where they actually had a booklet which said let's keep all the African Americans out, here's how you do it.

Then you had jury shuffling, which were two instances.

In one of them, there are like 40 people.

In my mind, you know, we have rows.

In row 1 there are four black jurors and six white; row 2, three black and seven white; row 3, two black and in the last row one black, and the prosecution says, hey, let's shuffle it.

All right?

And the other time he did it, the only other time... it wasn't quite that bad... the same idea.

Then the third thing that comes up is you find instances here... not everyone, absolutely right... but instances where black people who seemed really for the death penalty, say, like Mr. Fields manages to get knocked off, but Mrs. Mazza who seems quite uncertain is kept on.

And then we have this disparate questioning that you're about to mention where it just turns out that almost every black is given this really... you know, bring them in a gurney, put... put... you know, real graphic description of the death penalty, and white people who also expressed hesitation aren't.

Okay?

So on the basis of that, the majority writes there is, indeed, a strong suspicion here that this was discrimination.

So I want to ask you... and if I were to write something like that... I didn't write the words, but I would mean, well, I think that's what it is unless there's something later on that comes out to the contrary.

So I'm asking you what was to the contrary.

What came out in this Fifth Circuit that we didn't have in front of us the last time?

Ms Bunn: --Your Honor, the first time before this Court, the issue was whether, based on a threshold examination of the record--

Justice Breyer: I know that was the issue, but I'm saying if I read the opinion to say... now, maybe you'll tell me I shouldn't.

We should just go back and redo what we did.

But I'm reading the opinion to say, well, unless something changes here, this is bad.

It's discriminatory.

Now, you can tell me, one, I'm wrong to read the opinion that way.

I got that argument.

But I want to be sure that that's what's in front of me.

So I want to know is there something different in the Fifth Circuit that wasn't here the first time.

Ms Bunn: --Your Honor, I believe the most... the most important difference in the review of this Court the last time and the review of this... of the Court this time is that the Court did take a big-picture look at all of the pieces of evidence, but at this point, as the court of appeals did and as this... as this Court must do now, it must go, as Justice Scalia mentioned, juror by juror, the jurors who were challenged.

Miller-El--

Justice Scalia: We only speak to the issues before us, don't we?

And the issue before us last time was not the issue before us here.

It was simply whether there was enough evidence to require the issuance of a COA.

Isn't that right?

Ms Bunn: --That is correct.

Justice Breyer: Right.

That's why I asked.

Justice Scalia: And that's a good deal different.

Whatever the majority might have said about other issues, it certainly was not binding on the court of appeals, was it?

Ms Bunn: No, Your Honor.

Justice Stevens: I hate to say this--

Justice Breyer: So that must be a different question--

Justice Stevens: --to my colleagues, but I'm very much interested in hearing what Ms. Bunn has to say.

Justice Breyer: --because that wasn't the one I asked.

The one I wanted answered was the question of I understand that point, which we could say it was definitely not definite the last time.

I'm asking you... it's a serious question... as whether there was something new or different that came up when the Fifth Circuit wrote this.

Now, I gathered from your answer, it might be yes, and if the answer is yes, I want you to say what it is because I'm interested.

Ms Bunn: Yes, Your Honor, there was additional analysis, particularly of the six jurors Miller-El claims were discriminated against, which this Court did not review the first... in its first opinion specifically.

And a review of Miller-El's purposeful discrimination claim must focus on these six jurors.

And given the... the views expressed by these six veniremen, it is no surprise that prosecutors struck them.

Each venire member peremptorily struck by the State had voiced views unfavorable to the State but were not subject to a challenge for cause.

These reasons are race-neutral, case-related, and supported by the record, in fact, supported by the very words that the jurors uttered.

Carrol Boggess indicated that her beliefs... on the questionnaire indicated her beliefs would impair... would impair her ability to impose the death penalty as a juror.

She referred to her... an execution as a murder during her voir dire and other comments evincing hesitance regarding her ability to impose the death penalty.

Justice Stevens: May I ask you this?

There are two questions just generally.

One, I'm curious about the answer to my question to... to Mr. Waxman.

Did the minimum punishment ploy ever work?

Did it ever succeed in getting a challenge for cause granted?

Ms Bunn: Your Honor, there are other cases that I'm aware of in Texas where the State did challenge jurors on this basis.

Whether there was any questioning... any difference in questioning, I don't know.

It's not apparent from the records.

Justice Stevens: But have... and the challenges were granted?

Ms Bunn: Yes, Your Honor.

Justice Stevens: Of course, none of them were granted in this case.

Is that right?

Ms Bunn: That's correct.

Justice Stevens: So it... it was true that this was... was a ploy adopted for the purpose of trying to make it unnecessary to use a... a peremptory challenge.

Ms Bunn: Yes, Your Honor.

Yes, Your Honor, that is right.

Justice Stevens: And do you defend that practice?

Ms Bunn: Yes, if it is a legitimate tactic, recognized... as an attorney, if there is a... some means that is available to use so that you do not have to use a peremptory strike--

Justice Stevens: If you... if you can get the venire person to make a mistake in his answer, then you... you get... get him off easy.

Ms Bunn: --That's what... that's what voir dire is all about, and the defense counsel did it in many occasions--

Justice Kennedy: And suppose... suppose you have a system in which that attempt to find cause is applied much more rigorously to black prospective jurors than to white prospective jurors.

Ms Bunn: --If it's not... the record shows that there's no difference in the views expressed by the jurors, yes.

In this case that--

Justice Kennedy: No.

The... the white jurors don't express the views at all because they're not questioned intensively, so you don't know if there's cause for them or not.

But the black jurors are questioned intensively, and you find cause or... or a... a race-neutral reason for the dismissal.

Is there a Batson violation in... in that instance?

Ms Bunn: --No, Your Honor, not a Batson violation.

Now, whether it's evidence of... of--

Justice Kennedy: So... so you say that in any case you can question black jurors more intensively than white jurors and still succeed in excusing them if the result of that voir dire shows some race-neutral basis.

Ms Bunn: --Your Honor, if the questioning itself results in the views that are the basis of the strike, that would present a problem.

That is not the case here, however, where the... the disparate questioning on minimum sentencing, for instance, was based on the views that were expressed.

Justice Kennedy: Suppose... suppose you have a manual of... from the district attorney's office that says all black jurors shall be questioned more intensively than white jurors.

Ms Bunn: That would certainly be evidence that black jurors and white jurors were treated differently.

Justice Scalia: You're saying that that is not what happened here.

Ms Bunn: Yes.

Justice Scalia: It was on the basis of the questionnaires expressing hostility to the death penalty that more intensive questioning was given to some people than to others, and that the mere fact that a larger number of those people was black is not a violation.

Ms Bunn: Yes, Your Honor, that is correct.

Justice Scalia: So the hypothetical, assuming that you... you just have blacks and whites with no difference in... in what they... in what they had said on the questionnaire, is a hypothetical that you say does not exist in this case.

Ms Bunn: Yes.

Justice Stevens: Yes, but you don't know what the questionnaire showed as to most of the white venire persons, do you?

Ms Bunn: No, we don't, Your Honor.

Justice Stevens: And how many white venire persons were there?

Ms Bunn: 48.

Justice Stevens: 48.

And how many were given this questioning?

Two?

Ms Bunn: On the graphic script?

Justice Stevens: Yes.

Ms Bunn: Two... three.

Justice Stevens: And so are we to assume that all 46 of the other white venire persons were as tough on the death penalty as you'd like everybody to be?

Ms Bunn: No, Your Honor.

Justice Stevens: We just don't know about those other 46, do we?

Ms Bunn: We do not know.

We do not--

Justice Stevens: But is it not a reasonable inference that some of them might have expressed doubt about the death penalty?

Ms Bunn: --That is... we do not know.

There... even though we do not know--

Justice Breyer: Well, if you don't know... if you don't know, you... there's an excellent way to know.

Somebody says, you know, Mr. Prosecutor, you gave this terribly graphic script to all the black people and you really didn't give it to hardly any of the white people.

Now, it's also possible... possible... that the reason he didn't was because from the answer to their questionnaires, which we've not seen, you didn't need to.

That's possible.

But if that were the case, wouldn't he have said to the judge, Judge, that's why I did it.

I didn't ask them because I read the questionnaires.

Wouldn't that be what you would do or any prosecutor would do if that were the reason?

Ms Bunn: --Yes, Your Honor, I would.

Justice Breyer: And did the prosecutor ever do that here?

Ms Bunn: No, but significantly in this case, the arguments regarding disparate questioning were never raised until Federal habeas corpus proceedings.

They were not raised at trial when the jury questionnaires still existed.

Justice Breyer: Did the prosecutor not... was he there?

Ms Bunn: No, Your Honor.

He was not--

Justice Breyer: No.

And did... was anyone there who had ever talked to the prosecutors?

Ms Bunn: --The prosecutors were contacted during that period, but the questionnaires--

Justice Breyer: All right.

So could then--

Ms Bunn: --no longer existed at that point.

Justice Breyer: --But couldn't you have asked the prosecutors if that was the reason?

Ms Bunn: 20... 15 years after a case is tried--

Justice Breyer: I mean, what are we supposed to do?

I mean, what you've done is say... of course, I could think of reasons that could have been their reason, but unless there's some reason for thinking that was their reason--

Ms Bunn: --Well, Your Honor, in this case, the... the inmate Miller-El has the burden.

He had the burden in the trial court.

He had the burden to prove purposeful discrimination, and he could have put... he did put the questionnaires of the 10 challenged jurors in the record.

He did not--

Justice Kennedy: Well, on... on that point, this is not exactly like McDonnell Douglas, Burdine where you have some prima facie case, the person was equally qualified, but was of a different gender than the one that got the job, and then the... you go back to square one.

Here, the prima facie case is immensely powerful because of the culture of discrimination in the manuals and so forth, and that... that, it seems to me, stays in this case.

Ms Bunn: --Your Honor, this evidence, however compelling a picture it draws of past injustice, simply cannot trump the State court's finding of no purposeful discrimination.

It does not address--

Justice Souter: Well, don't we at some point have to have some reason to believe that the evidence of past practices become irrelevant?

And if we... if that is so, do we have any such evidence here?

Ms Bunn: --There... there was evidence in the Swain hearing, and that... in fact, the cross examination by the prosecutors did indicate that practices that were in the past had been... had been vitiated, at least closer to the time of trial.

But regardless of that--

Justice Souter: These are the same two prosecutors who in other cases had been found, in effect, guilty of... of racial discrimination and the same two prosecutors who were calling for the shuffle in these cases.

Is it plausible to think that there had been this change of heart?

Ms Bunn: --Even assuming the evidence, the historical evidence... assuming its relevance, as the Fifth Circuit did--

Justice Souter: Well, I mean, I... I am assuming it is relevant, and I am asking the question, is there a reasonable basis to think that these particular individuals, engaging in the practice that they demonstrably engaged in, had had a change in heart in this case?

Ms Bunn: --Yes, Your Honor.

The record in this case indicates that... for instance, with the use of graphic script questioning, the... of the six... again, of the six challenged jurors, four did not receive the graphic script at the outset of voir dire.

Justice Souter: Is that why they engaged in the shuffle twice--

Ms Bunn: Your Honor--

Justice Souter: --on... on a record that shows there were black jurors down front each time they engaged in it?

Ms Bunn: --The record shows that of 5 weeks of voir dire, the State requested shuffles three times.

Two of those times, the defense counsel put on the record that there were a greater number of African American jurors in the front of the panel.

They--

Justice Souter: And... and that evidence was not refuted.

It was not denied, as I understand it.

Ms Bunn: --Your Honor, there was no response from the prosecutors.

There was no objection made, no specific objection made as to... as to the State's exercise of a jury shuffle.

But in this case to ask this... what... what Miller-El is asking this Court is to assume that the only discernible trait that could have been the basis for the State's exercise of a jury shuffle is race, and that is not... that is not the case.

Justice Souter: The... I... I don't think that's his argument at all.

He is not arguing that there might not be other bases for making challenges or making peremptory strikes.

What he is saying is those challenges exist for lots and lots of jurors.

And what in fact there is is very strong circumstantial evidence that what tipped the prosecutors to make the peremptory challenges here... what he was referring to earlier in this argument as the but-for cause was racial.

He's not saying nothing else could have been involved.

He was saying race tipped it.

And it's the circumstantial evidence, among other things, that indicates that race does.

And that's the reason for my question.

Is there some reason to believe that there had been a change of heart on the issue of race so that his argument is unsound?

Ms Bunn: Your Honor, again, Miller-El's claim of purposeful discrimination must focus on these six jurors, and in answer to your question, a review of these six jurors does show that these strikes were not based on race.

This was not the tipping--

Justice Breyer: --You think they're based, for example, on capital punishment.

But now, let me give you two of them, and this is why... this is actually why I get somewhat concerned about this.

Here is the answer of the white woman who served on the jury about capital punishment.

Could you put Miller-El to death?

Mrs. Mazza: It's difficult.

I've had 2 days to think about it, and given my religious upbringing, et cetera, going on for a few sentences, I think I could.

She serves on the jury.

Okay?

Here's Mr. Fields who is black and whom they got off.

What I think, according to the Old Testament, people were killed if they violated His law.

In its extended service, the State represents Him.

I feel the State is God's extended person.

In other words, the State represents God in today's time.

Therefore, if the State exacts death, that's what it should be.

Okay?

That's the man they feel has the qualm, and the woman I told you who was white they feel has no qualm.

Now, I look at that, and I say, you know, I mean, my goodness, it's pretty hard to see how you get yourself in that frame of mind.

Ms Bunn: --Your Honor, the... that was not the prosecutor's argument at trial and it's... it is not our position now that--

Justice Breyer: No.

I know.

They then said that oh, you see, Mr. Fields was... is it a woman or a man?

I'm not sure.

Yes, he's a man I think.

He... he's kept off, the black man, because of his views on rehabilitation.

So I looked up what those views were, and that consists of his saying... my... my interpretation... well, I think any person, if he really believes in God, really believes in God, could be rehabilitated.

At which point the prosecutor says to him, well, suppose you came to the conclusion that Miller-El really was touched by God, could you put him to death?

Answer: Yes.

Why?

Because, well, it seems to me my job here is to follow the law.

That's the man whom they think they are... they are kicking off because of his views of possibly not applying the death penalty, and the other woman, who is white, they keep on.

Now, I think that's the whole story there.

There was also the brother who was a drug... who was the drug... you know, he had had drug convictions, but that's scarcely mentioned.

So... so I look at those two people and I think, gee, put that in context.

My goodness.

What... what's your response to that?

Ms Bunn: --Your Honor, as to Juror Billy Jean Fields, he did not express qualms about the death penalty in general, but he did state that it was his belief that no one... no one... no matter their background or what they've done, is beyond rehabilitation.

Everyone can be rehabilitated.

And this was a view regarding rehabilitation that no one, white or black, had expressed.

It was a unique view, and in this case where jurors are asked to... to... the question, is this person going to be a continuing threat to society, is... is something that's going to go into their punishment inquiry.

And if this person is one who the prosecutor believed could tend... if there's a repentant criminal defendant on the stand who testifies, that they would tend to believe that person and answer the question no.

And... and again, this was not the only basis for the State's strike as well.

The fact that his brother had been prosecuted in Dallas County numerous times, the same prosecuting authority, contemporaneous with the trial, numerous occasions, had served time, and contrary to Miller-El's assertions, the State did question Mr. Fields on this issue during voir dire, and it was a basis for the strike.

There--

Justice Ginsburg: Ms. Bunn, before you finish, there... there are two pieces of this I hope you can give me an answer to.

The race-coding.

Is there any neutral reason for that?

And when was that stopped, if it was?

Ms Bunn: --I... I don't... I don't have any information.

There's no information on... in the record about exercising it in other cases, and I just... I just don't know.

But the first part of the question, there could... as Mr. Waxman mentioned, there... there were other visual cues noted on the cards.

Attorneys, especially--

Justice Stevens: Is it not a fair inference that each of the cues noted on the cards was something that the prosecutors thought relevant to whether or not to challenge the juror?

And if so, is it not... does... is that not uncontradicted evidence that the race of the venire person was a factor in the decision?

Ms Bunn: --Not necessarily.

I mean, there were other... there was other--

Justice Stevens: Well, why else would it be noted?

Ms Bunn: --There was... just to familiarize an attorney getting ready for voir dire of an extensive number of people--

Justice Kennedy: Is... is there any--

Justice Scalia: Maybe the prosecutors didn't want to come up with an all-white jury for fear it would be challenged.

Ms Bunn: --That's certainly--

Justice Stevens: That may be, but is it not... is it not clear that this is one of the factors that was used to decide whether or not to exercise a challenge, just as the beard and the other things that are mentioned in the... in the manual were?

Ms Bunn: --No, Your Honor.

The fact that it was noted on the race... on the... on the juror card does... does not necessarily indicate that.

Again, it could be a cue for a... a litigant preparing for voir dire.

Justice Kennedy: --Well, were the... were the cues on the card similar to the instructions in the manual?

Ms Bunn: There were some that could... that would correlate, but there were others that aren't noted on the juror cards--

Justice Kennedy: Can you quantify the correlation or lack of correlation for me?

Ms Bunn: --The... for instance, occupations were... or addresses... perhaps not occupations, but I know addresses were... were noted.

There could have been other things at that point that were not noted.

There was a lot... information available at that point, whether visual or from the juror information cards.

Justice Ginsburg: I had asked you if they were still race and gender-coded.

You hadn't gotten to that part of the question.

These cards were race-coded and for other things too.

Right now in the State, do the prosecutors code cards... cards for race and gender?

Ms Bunn: I do not know.

I do not--

Justice Ginsburg: The other question I had, are these two prosecutors the same ones who were involved in other cases where it was determined that they had used tactics that violated Batson?

Were those cases contemporaneous with Miller-El's or were they earlier in time?

Ms Bunn: --The record indicates that Prosecutor Macaluso was involved in jury selection in the Chambers case, and that case was tried months... I believe it was late 1985 when Chambers was tried.

Justice Kennedy: Wasn't that 2 months?

Ms Bunn: 2 months?

This was March, so it would have been probably 4 or 5 months, within a year certainly.

Justice Scalia: Is it... is it unlawful to take sex into account in jury selection?

Ms Bunn: Yes.

Yes, Your Honor, it is.

That's certainly not alleged in this case.

The jury actually consisted of seven women.

But again, to... the... the race-coding issue... as far as whether it's exercised now, I mean, I wouldn't be particularly surprised if it were.

A conscientious litigant... it's really necessary to keep track of the race of prospective jurors, as Justice Scalia noted, to be certain that you don't run afoul of Batson.

But--

Justice Souter: Is... is that true with respect to weight and mustaches and things like that?

Ms Bunn: --That... that doesn't--

Justice Souter: They were... they were making notations of things like that, as I understand it, and they didn't have to worry about Batson there.

But there does seem to be a correlation with the manual.

Justice Stevens: And Batson hadn't been decided yet.

Ms Bunn: --Yes, that's true.

I was referring to Justice Ginsburg's question about the... the practice, whether it continues.

But again, regarding its use in this case, I would... I would say that it... it's not... does not necessarily lead to the conclusion that it was noted basically to treat African American venire members differently because the record actually--

Justice Souter: But I... I don't... I mean, I'd just like to go back to my question.

I don't know why else?

It's true if... if all they noted, if they had been prescient and had said, you know, Swain is going to give way to Batson and we're going to note Batson issues, you'd have an argument.

But they were noting a lot of non-Batson issues too, and the one common characteristic of the Batson issues and the non-Batson issues were they were all correlated to a manual that says keep these people off the jury.

And... and isn't that a sound train of reasoning that that's what they were trying to do?

Ms Bunn: --Your Honor, the... the notations, though, correlate as well to simply visual cues that a litigant will use just simply to familiarize himself with the manual.

Justice Souter: The manual had said there are certain visual cues that indicate jurors you don't want on the jury.

You don't want black jurors.

You don't want women jurors.

You don't want Jewish jurors.

You don't want fat ones.

You don't want bearded ones.

And these are the things that they were noting.

Isn't the reasonable inference that that's what they were noting them for?

Ms Bunn: Your Honor, there are other explainable reasons, there are other plausible reasons for noting those things.

But even that aside, again, we must look at these six jurors and they all expressed views unfavorable to the State.

And Miller-El has failed to identify a similarly situated white juror.

Justice Ginsburg: What about the Fifth Circuit said that comparing Rand's testimony... that that was in line with Mazza's.

The Fifth Circuit seems to recognize that those two were closely comparable.

Ms Bunn: Justice Ginsburg, they recognized, as Justice Scalia had in his concurring opinion, that that was basically as close as it got.

But at most, Mazza acknowledged that the decision whether to impose a death sentence would be difficult, not an easy one, kind of hard, but she simultaneously stated that it was a decision that she believed that she could make.

She never questioned her ability to assess a death sentence in an appropriate case.

She merely acknowledged that it was a decision that she would not take lightly.

She also had served on another criminal jury in the last couple of years, a jury which had returned a guilty verdict.

In contrast, Rand explicitly questioned his ability to assess a death sentence in any case.

When asked whether he could impose the death penalty, he told prosecutors right now I say I can, but tomorrow I might not.

He declined to describe himself as someone who believes in the death penalty and can serve as a jury... juror and assess the death penalty if warranted, stating that he was probably in between the first two categories described by the prosecutor.

Notably, Mr. Waxman referred to the prosecutors' notes on the questionnaires.

What he didn't mention was also noted on the... by the State at... at the joint lodging, page 30, is that Juror Rand had referred to the death penalty as a touchy subject and that he had described himself as a person falling somewhere in between the two categories described by the prosecutor, the first being someone who believes in the death penalty and can assess it, the second being someone who believes in the death penalty generally but cannot personally assess it as a juror.

So the State did take note of the... of the expressions of ambivalence by Rand during his voir dire.

Juror Mazza, again, never expressed this level of ambivalence.

These are not similarly situated jurors.

And the same is true of Miller-El's attempted comparison of Rand and... and Juror Sandra Hearn.

She expressed hesitance on assessing the death penalty in a very particular circumstance, the... a first offense, and certainly this is not the case here.

On the other hand, Rand had questioned his ability to assess a death penalty in any case and, against Hearn's State-friendly views, led to a defense challenge that was overruled.

And the fact that the defense vehemently objected to her on direct appeal is further evidence that she's not similarly situated.

Under Batson, Miller-El has the ultimate burden of proving purposeful discrimination.

He has failed to satisfy that burden, and the State trial judge found that prosecutors in this case did not act with a discriminatory purpose.

As this Court acknowledged in its earlier opinion, Miller-El is not entitled to habeas relief unless he can... he can show that the State court's rejection of his Batson claim was objectively unreasonable.

He must produce clear and convincing evidence and he has failed to do that.

Justice Stevens: Thank you, Ms.... Ms. Bunn.

Mr. Waxman, you have about 3 minutes left.

Rebuttal of Seth P. Waxman

Mr. Waxman: I have just three points.

The Fifth Circuit had precisely the same record before it that this Court had and the State submitted very nearly precisely the same brief that it presented to the Fifth Circuit the time before.

Disparate questioning on the minimum punishment ploy was objected to by the defense during the voir dire and it was acknowledged.

If you look at the Batson argument, it's either Mr. Macaluso or Mr. Nelson said some of the jurors were questioned disparately, but... and they gave the explanation that it had to do with views on the death penalty.

So it was before the State courts.

Now, on the graphic script, which is the disparate questioning that Ms. Bunn has focused the Court's attention on, the State now says, okay, we can't speculate about what we don't know about the questionnaires.

Let's just look at the questionnaires that we do know about.

Justice Stevens, it is... you are quite right that that tells you nothing about the dozens of other white jurors whose questionnaires we don't have, but we don't need to indulge in that speculation in this case because what we know from the questionnaire answers that we have is that every black who expressed anything that could be called hesitation on their juror questionnaire, including just not filling in either question... answering question 56 or 58, got it.

Five whites who expressed hesitation did not.

That is Juror Mazza, Juror Hearn, Juror Duke, Ms. Girard, who testified that she didn't... who acknowledged in her voir dire that she hadn't filled out one of those questions which got similarly situated African American jurors the graphic script, and Juror Whaley who... or Venireman Whaley who testified that her questionnaire expressed great hesitation about the death penalty.

And what we also know is that the three jurors who got the graphic script, Troy Woods, the black juror; Mr. Gutierrez, the Hispanic juror; and Marie Sztybel, the only Jewish juror.

If the Court has no further questions.

Justice Stevens: The case is submitted.

Attribution:

The Oyez Project

Featured:

Rumsfeld v. Padilla - Oral Argument

Fri, 09 Jan 2009 14:49:05 +0000

Case:

Rumsfeld v. Padilla

Media File:

03-1027_20040428-argument.mp3

Related Transcript:

transcript.xml

Transcript:

(Audio missing - Chief Justice Rehnquist announces that the Court will hear arguments Rumsfeld v. Padilla)

CHIEF JUSTICE WILLIAM H. REHNQUIST: Mr. Clement.

MR. PAUL CLEMENT: Mr. Chief Justice, and may it please the Court:

Unlike the Hamdi case, which raised not only the question of the President and the military's authority to detain, but also questions of process and access to counsel, this case raises only two relatively discrete questions:

First, whether the habeas petition in this case, challenging Padilla's present physical confinement in South Carolina, was properly filed in Manhattan rather than against the immediate custodian in South Carolina.

And second, whether the President has the authority to detain a citizen who travels abroad, affiliates and associates with the enemy abroad, receives training in enemy camps in wiring and explosives, and then returns to the United States at the direction of the enemy to commit hostile and warlike acts.

Now there are many aspects of this case that raise issues that are really extraordinary, but the habeas petition that was filed in this case was a standard, indeed ordinary use of the writ to challenge the prisoner's present physical confinement.

And the habeas rules are settled that when the writ is used to challenge the present physical confinement, the proper custodian, the proper respondent is the immediate custodian, and the suit should be filed in the district where that custodian is present.

In other words, in a case to your present physical confinement, the case should be filed in the district of confinement.

JUSTICE JOHN PAUL STEVENS: May I ask, on that point, Mr. Clement, supposing this petition had been filed while he was still in New York, and then he was removed to South Carolina, would the petition be o.k. then?

MR. CLEMENT: There would be jurisdiction in that case, Justice Stevens, under the Endo decision. Now, I think in that case there would still be a question, especially if there was -- if the habeas petition was filed and he was immediately removed -- there would still be the question of venue at that point.

And there's a Seventh Circuit case that's not in the briefs, but Ross against Membay that you might want to look that says that in a case like that --

JUSTICE STEVENS: I'm still not quite -- I'm not quite sure what your answer is to my question.

MR. CLEMENT: My answer is, jurisdiction yes, under this Court's decision in Endo. But then there would still be a subsidiary question that's not raised here about venue.

JUSTICE STEVENS: Which the government presumably would be free to raise.

MR. CLEMENT: Exactly, and we would raise in a case where there was in fact jurisdiction, but in this case our position is there's no jurisdiction whatsoever.

And I think that --

JUSTICE SANDRA DAY O'CONNOR: Jurisdiction under the habeas statute has been a bit of a confusion because, for instance, on behalf of aliens, I think we've allowed jurisdiction to be obtained in the manner it was here, have we not?

MR. CLEMENT: Well, i don't think so Justice O'Connor. I don't know which case you have in mind, but I'm aware of no case of this Court that takes the unprecedented step that the court below took, which is basically to allow a habeas petition to go forward in a case where neither the prisoner nor the custodian is in the jurisdiction where they habeas petition is filed.

CHIEF JUSTICE REHNQUIST: Well what do you do with ex parte Endo?

MR. CLEMENT: Well, Mr. Chief Justice, as I was suggesting to Justice Stevens, that case involves a kind of unique situation where the habeas petition is filed, challenging a certain kind of confinement, and then after the petition is filed, and after jurisdiction attach -- attaches, the the prisoner is moved.

In that case it was an individual moved from California to --

CHIEF JUSTICE REHNQUIST: But they -- they never named any custodian in that case, did they?

MR. CLEMENT: Well, I'm -- I don't know for sure, Mr. Chief Justice, but I would say a couple of things. One is, on the immediate custodian rule, I think that is a rule that perhaps the government could waive in a case.

And so, if you have a situation -- in a way, Hamdi is that case, where -- when the habeas petition in Hamdi was filed, he was being detained in Norfolk, which was in the Eastern District of Virginia.

It didn't matter in that case whether the immediate custodian was Paullette, who was the brig of the -- the commander of the brig, or Rumsfeld, because in the government's view they're both territorially present in the Eastern District of Virginia.

So the immediate custodian rule, I think, is something the government can waive. I don't think the territorial jurisdiction or limit on the courts, though, is something that the government is in the position to waive.

I think that is a restriction on the power of the court to issue the writ of habeas, and again as I was indicating --

JUSTICE O'CONNOR: Well, is -- is there a circuit split on whether aliens can name the attorney general

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MR. CLEMENT: -- this case, though even there, as I understand most of those cases -- there's a case from the Ninth Circuit called Armentaro, which in the government's view goes the wrong way.

There's favorable precedent in the Sixth Circuit, the Fifth Circuit and the Seventh Circuit. But even, the Ninth Circuit, I think envisions a case where they view the Attorney General as the proper custodian. But it's not clear where they think that individual can be served.

Now, I suppose that the Ninth Circuit applying that rule might also take the unprecedented step here.

It's also true if you wanted sort of a sense of the potential of abuse in these cases, I think you could point to the Ninth Circuit case where the Ninth Circuit held that the central district of California, had habeas jurisdiction over a claim filed by a petitioner in Guantanamo.

I mean, obviously there's the issue that this Court has, but there's the question of if there were jurisdiction, I wouldn't have thought it lay in the central district of California. And I think that happens when you relax these traditional rules, and I think particularly in a case --

JUSTICE O'CONNOR: Where does jurisdiction lie for someone in Guantanamo, do you suppose?

MR. CLEMENT: Well, let me answer the question this way. Which is if you had a citizen in Guantanamo --

JUSTICE O'CONNOR: Yes.

MR. CLEMENT: And under this Court's cases like Toth against Quarles and Burns against Wilson, that citizen isn't able to file a habeas petition.

Our view is that the proper place to file that would be either in the eastern district of Virginia, if you were naming the Secretary of Defense or if you were naming some official present in the District, you would sue in the District of Columbia.

But, the important thing is, even in that case, the Court where you filed the petition, would have jurisdiction, territorial jurisdiction over the respondent.

And what is so anomalous here, is in a sense, it doesn't, I mean it matters in a sense in that we think the proper respondent is Commander Marr.

But even if you assume, the proper respondent here is Secretary Rumsfeld, the case still shouldn't be brought in the southern district of New York it should be brought in the Eastern District of Virginia --

JUSTICE STEVENS: But why? What difference does it make to the government where they defend?

MR. CLEMENT: Well, I think that there are number --

JUSTICE STEVENS: Because there are a number of offices all over the country.

MR. CLEMENT: Well, I-I-I think that's right Justice Stevens, I think it only makes sense to have the defense mounted in the place where the detention is taking place.

I think that's particularly true in this case, because this isn't a petition that only challenges the fact of confinement, if you look at the petition in this case, the amended petition, Joint Appendix Page 56.

The relief that's sought here also goes to the conditions of confinement in Commander Marr's brig. Now, in a case like that --

JUSTICE STEVENS: Yes, but I'm not sure that's appropriate relief in a habeas petition anyway.

MR. CLEMENT: Well, I think you could file a mixed petition and seek that kind of relief, but in any event, I think what they're looking for is not just a release from detention, but the stopping of the interrogations --

JUSTICE RUTH BADER GINSBURG: How this particular case was pleaded, which it wasn't because we don't have any, any rushing out of this. But you keep talking about jurisdiction. And it seems to me this is essentially a venue question.

There's no question that Federal Courts have habeas jurisdiction, they have that authority. And you're talking about, not the large question, what kind of case can a Federal Court here, you're talking about a where question, not a what question.

MR. CLEMENT: Right, but the where--

JUSTICE GINSBURG: So, it's essentially a venue question.

MR. CLEMENT: Well, I -- I, unless the word essentially is going to bear a tremendous amount of weight, I disagree.

Because what I think you have here is not general venue principles, you have a situation where the relevant statute that gives Courts habeas jurisdiction restricts their ability to issue the writ to their territorial jurisdiction.

And this Court has been clear in cases like Carbo and this even consistent in Justice Rutledge's dissent in the Ahrens case, that for that provision to have any meaning, at an irreducible minimum, it has to mean that a writ that goes to the proper custodian, has to be filed in the territorial jurisdiction of the district court.

JUSTICE GINSBURG: Although, if the prisoner is moved, so the prisoner goes some place else, you still have jurisdiction over the case, although the original custodian no longer has the prisoner in his or her care.

MR. CLEMENT: That's right Justice Ginsburg, and this Court decided that in Endo, long before Ahrens when it reaffirmed an even stricter rule and there's nothing in the post-Ahrens cases that suggest this Court has ever deviated from this understanding.

And indeed, I would point the Court to the decision in Schlenger against Seamens, because I think in some ways it shows, how, that that case really decided this issue.

Because what the Court there had was an individual who was trying to get ROTC Scholarship in Arizona, but he was assigned to a unit in Alabama.

And he filed his habeas petition in Arizona and he named as respondents an individual in Arizona who had no custody over him whatsoever, so that individual was out.

He also named the Secretary of the Air Force, the Court didn't rely on that, and the Court said that his true custodian, is his commanding officer in Georgia.

And what this Court said was that there was no jurisdiction in Arizona over this custodian in Georgia. And just to be clear about it, the court noted and rejected an argument based on 28 U.S.C. 1391(e), which among other things, provides nationwide service of process against Federal officials. Now, if that statute had applied, then it would have been perfectly appropriate to bring the case in Arizona against a Georgia respondent, who is a Federal officer.

But the Court said no, 1391E does not trump the habeas statute. Now, if that is true of a Federal statute, that provides for nationwide service of process, it seems like it would be true a fortiori for federal rule of civil procedure four.

But that the theory under which the Courts below exercise jurisdiction --

JUSTICE O'CONNOR: Mr.-Mr. Clement, is Schlenger still good law after Strait and Braden?

MR. CLEMENT: Absolutely, your honor. And I think the best evidence of that. I think there's two things I'd like to point to.

But maybe the simplest way is that both Strait and Braden cite Schlenger favorably and indeed if you look at the very end of the Braden opinion when the Court says that the proper respondent there is within the Court service of process, it cites Schlenger for that proposition.

Which makes sense because in that case, the petition was properly filed challenging a Kentucky detainer in Kentucky. So the proper respondent was within the territorial jurisdiction of the Court in that case.

The second reason I would say that Schlenger is very much good law, as we pointed out in our reply brief, is that the Court in Schlenger went out of its' way, because at that point Ahrens was sort of already teetering on the very of obsolence to state that the rule would be exactly the same even under Justice Rutledge's view in Ahrens.

So I think for those two reasons, Schlenger continues to be good law and clearly would trump any service of process that would be provided by Rule Four.

And I think, and this is consistent with what the unanimous three judge Court in the Fourth Circuit said in the Hamdi case, that particularly in cases that raise such sensitive issues, as the cases that are involved on the merits in this case.

It is particularly important that the Court try to avoid on necessarily reaching Constitutional issues by first ascertaining that it has jurisdiction.

JUSTICE GINSBURG: Although, you recognize, that it isn't a jurisdictional question like, can the Federal courts entertain this type of suit? Can they entertain a -- a fender bender between people from the same states? No.

Can they entertain Federal habeas cases? So, we have one federal system and there are classes of cases that can go into that system.

And then we have an allocation, of where. So this isn't jurisdiction writ large, it is where in this Federal system do you bring this case?

MR. CLEMENT: Well -- Well, Justice Ginsburg, it's statutory jurisdiction. But I agree, it is at some level, it is a which District Court question, not whether District Courts are open to these claims at all --

JUSTICE STEPHEN G. BREYER: Right, if it's a which District Court question, I mean, I don't know how long you want to spend on the procedural issue. But, I take it if we follow your thing, never can you entertain a habeas petition unless the body is in this District.

Then, immigration cases, military cases, are going to be a nightmare. If we follow a venue principle, you are going to get just the right result which is, we bring the case where it's most convenient.

MR. CLEMENT: With respect Justice Breyer, I would disagree. This Court, it is true, in situations where it has relaxed the notion of custody and has allowed habeas petitions to be brought in circumstances where they previously weren't available,

Strait against Laird is an example, this Court's decision in Braden, basically is an example, because it was accommodating the overruling McNally against Hill and Payton against Roe.

And so in those contexts, where there is more than one custody, or some type of metaphysical custody, this Court has relaxed the rules in a way to accommodate those. But it has never deviated, never.

From the rule that you have to file the habeas petition where the custodian is, and equally important, it has never, there is no need to expand the notion of custody because you have a classic habeas case where you are challenging your present physical confinement.

The Court never relaxed those rules --

JUSTICE BREYER: Let me ask you a question to get you to the merits, if I can.

MR. CLEMENT: That would be fine.

JUSTICE BREYER: Suppose that you're right about your basic claim that the uniform, what is it called, Use of Force Act, is in fact a statute of the kind contemplated in 4001.

Still, the words in that act, they can use necessary and appropriate force. So why would it be necessary and appropriate in a Country that has its' courts open, that has regular criminal procedures, that has all the possibility of adjudicating a claim, that I'm the wrong person.

Why is it a necessary and appropriate thing to do, once you have such a person who's a citizen in this country, to proceed by other than a normal court procedure.

MR. CLEMENT: Justice Breyer, I will answer the question, I would preface it by saying that I certainly wouldn't read the authorization of forces use of the term necessary and appropriate as an invitation for judicial management of the Executive's war making power.

I would have viewed it as a delegation to the Executive to use its traditional authority to make discretionary judgments in finding what is the necessary and appropriate force and the Prize Cases, I think stand for that proposition.

Now if I can address the specifics though, why it might be necessary and appropriate. And indeed, why is the government asserting this authority? It is precisely because, in this War on Terrorism, the government can confront an individual who is not only guilty of past war crimes, but also --

JUSTICE STEVENS: Mr. Clement, can I ask you just one last question on the jurisdictional issue?

If you assume it's a question of venue rather than jurisdiction, I know you're arguing in the alternative, but if you assume if it's venue rather than jurisdiction, would New York not have been the proper venue since he was held there as a material witness and had a lawyer appointed in that case?

MR. CLEMENT: Even if contrary to our position, it was a venue question --

JUSTICE STEVENS: Right.

MR. CLEMENT: -- We would still say no. And I think that you have to understand. The fact that he was in New York in the first place is a bit of a happenstance. He tries to fly to Chicago, he's seized in Chicago --

JUSTICE STEVENS: No, but the government is responsible for him being in New York which seems to me, they should not be complaining about litigating there.

MR. CLEMENT: Well with respect Justice Stevens, I don't think anybody would think if you filed a habeas petition to challenge Padilla's detention as a material witness, while he was being detained in New York, that that should be filed in Chicago.

And I think by the same logic, it doesn't make any sense with the gravamen of the writ, the gravamen of the challenge, is to the conditions and legality of the detentions in South Carolina, why that ought to be filed in New York, just because he's there under a different authority.

JUSTICE STEVENS: He had a lawyer appointed, didn't he there?

MR. CLEMENT: He did have a lawyer appointed there. Again, I don't think, I mean, I think Mr. Dunham or his equivalent in South Carolina would be available to provide whatever role is necessary and appropriate under the circumstances.

So I don't think are only lawyers in New York.

JUSTICE STEVENS: As I suppose a little easier for the government to find a lawyer wherever it needs it, than it would be for a prisoner being moved from district to district.

MR. CLEMENT: In none of these cases, have we seen a problem with the detainees finding legal representation.

JUSTICE KENNEDY: Getting back to, getting back to the merits part --

JUSTICE SCALIA: Could I -- Could I hear the end of his answer to the previous question? I-I, you were in the middle of an answer, and I was waiting for the end of it?

MR. CLEMENT: Well, I hate to disappoint you, but I'm not sure I had anything particular left, other than to say that we would still, I mean and maybe I can reference that there are Court of Appeals cases, the Seventh Circuit has decided, this Ross against Membay case, that basically say that even if you're in a venue situation. Even if you're in the rule of Ex Parte Endo, there's still a strong, strong, presumption that a habeas petition belongs in a District Court where the individual's being detained.

Now maybe if you had a situation where the habeas petition was up and running and close to a final judgment or whatever and then the individual's detained, it makes sense to keep the proceeding in the first venue.

But in a case like -- if you had a case where the day after the first petition is filed he's moved for independent and good reasons, I think you'd also say that the case belongs in the place of detention.

JUSTICE KENNEDY: What rights does Padilla have, if any, in your view, that a belligerent who is apprehended on the battlefield does not have? Is -- is Padilla just the same as someone you catch in Afghanistan?

MR. CLEMENT: I think that for the purposes of the question before this Court, the authority question, he is just the same.

It may be that at an appropriate juncture when the Court has before it the question of what procedures should be applied that you would want to apply different procedures in a case like this.

JUSTICE KENNEDY: Can you punish him?

MR. CLEMENT: Could we punish him? Certainly we could punish him if we decided to change the nature of our processing of him. I mean, as this Court made clear in Quirin --

JUSTICE KENNEDY: Could you shoot him when he got off the plane?

MR. CLEMENT: No, I don't think we could for good and sufficient reasons of disgression.

JUSTICE KENNEDY: Well, let me -- I assume that you could shoot someone you captured on the field of battle.

MR. CLEMENT: Not after we captured them and brought them to safety. And I think, in every case there are rules of engagement, there are rules for the appropriate force that should be used and I don't know that there --

JUSTICE KENNEDY: If they're an unlawful belligerent?

MR. CLEMENT: Yes, even if they're an unlawful belligerent, once they're, I mean we couldn't take some belligerent, like Hamdi for example. Once he's been removed from the battlefield and is completely poses no threat unless he's released and use that kind of force on him --

JUSTICE GINSBURG: What inhibits it? If-If the law is what the Executive says it is, whatever is necessary and appropriate in the Executive's judgment, that's the resolution you gave us that Congress passed and leaves it up to the Executive, unchecked by the Judiciary.

So, what is it that would be a check against torture?

MR. CLEMENT: Well, first of all there are treaty obligations, but the primary check is that just as in every other war, if a U.S. military person commits a war crime, by creating some atrocity on a harmless detained enemy combatant or a prisoner of war, that violates our own conception of what's a war crime and we'll put that U.S. Military officer on trial in a Court Marshall.

So I think there are plenty of internal reasons --

JUSTICE GINSBURG: Suppose the Executive says mild torture, we think will help get this information. It's not a soldier who does something against the code of military justice, but it's an Executive command. Some systems do that to get information.

MR. CLEMENT: Well, our Executive doesn't. And I think, I mean --

JUSTICE GINSBURG: What's constraining? That's the point. Is it just up to the good will of the Executive, or is there any Judicial check?

MR. CLEMENT: Well, this is a situation where there is jurisdiction in the habeas courts. So, if necessary they remain open. But, I think it's very important, I mean, the Court in Ludeki against Watkins, made clear that the fact that Executive discretion in a wartime situation can be used, is not a good and sufficient reason for Judicial micromanagement and overseeing of that authority.

You have to recognize that in situations where there is a war, where the government is on a war footing, you have to trust the Executive, to make the kind of quintessential military judgments that are involved in things like --

JUSTICE BREYER: Alright, but what is it about military- Go back to Justice Kennedy's question. I'm trying to push you down the road a bit, maybe we don't have to decide this now. But I want to understand your vision of it.

I mean, a person has come to the United States. He's, according to the government, committed a serious crime. And, is dangerous.Well, those are people we deal with all the time in the criminal process.

So, if you're even assuming this resolution authorizes some kind of force, why isn't the appropriate force, where he's in the United States and the courts are open, what we would call ordinary criminal process. I mean, that harmonizes everything.

Now, maybe there's a answer to that in your vision. I want to find out your vision of what's supposed to happen here and why.

MR. CLEMENT: Well Justice Breyer, let me give you a practical reason, answer, and a legal reason. You may prefer the former.

I think the practical reason is if you capture somebody who is not just somebody who is guilty of a war crime or a violation of some provision of Title 18. But also has a wealth of information that could be used to prevent future terrorist attacks, then it seems to me that the military ought to have the option of proceeding with him in a way that allows him to get actionable intelligence to prevent future terrorist attacks and should not be forced into a choice where the only way they can proceed is to proceed retrospectively, to try to punish him for past acts.

In doing so, whether it's in a military commission or in Article III, this requires you to give him a counsel, who's likely going to say, that you shouldn't talk to the government about any of these things.

JUSTICE SOUTER: Would you have that authority in the absence of the authorizing resolution? Would the President have that authority?

MR. CLEMENT: I think he might well. You in fact suggested that yourself, which is. If there was actionable information --

JUSTICE SOUTER: Well, I suggested that he might have on September 12th. I don't think my suggestion went much further. But, But I'll grant you an argument. Do you believe he'd have that authority today? In the absence of the authorizing resolution?

MR. CLEMENT: I think he would, certainly today. Which is to say, September 12th or April 28th.

JUSTICE SOUTER: Two and a half years later. But I mean based on the rationale that there in a need to bar him from what would be the normal process that Justice Breyer is describing, because of the need to interrogate, effectively.

Your answer I take it, is he would have that authority even without the authorizing resolution.

MR. CLEMENT: That would be my answer. I would say the President had that authority on September 10th, but I guess I --

JUSTICE SCALIA: How does he get that from just being Commander-in-Chief? I mean, I-I understand the Commander-in-Chief power, to be a power over the military forces when they are being used as military forces, the General Washington power to, you know, to command the forces tacticaly and everything else. It doesn't mean that he has power to do whatever it takes to win the war.

I mean, the Steel Seizure case demonstrates that well enough. How does this come within George Washington's Commander-in-Chief power which is what I read this Congressional Resolution to be directed at. It doesn't say you can do whatever it takes to win the war.

MR. CLEMENT: No. But Justice Scalia, presumably the authorization of force is read against prior history in this Court's precedents.

And those precedents include the Querin case, where it is absolutely clear that in fighting a war, you have the authority to detain individuals, even if they are not former -- formal military officers, who are affiliated with the enemy and come into the United States intent on committing hostile and warlike acts.

JUSTICE SOUTER: But Querin rested on the fact that there was Congressional authorization for a military commission to try on such charges.

MR. CLEMENT: Well, two things Justice Souter. First of all, you asked me a hypothetical. But we do have the authorization of force here.

Second of all, I don't think Querin can stand for the clear statement rule that others want to attribute to it for two reasons. One, to the extent it applied any clear statement rule it runs in the opposite direction.

The Court said they would not strike down the detention and trial of the individuals there, absent a clear conviction, that it violated an act of Congress.

JUSTICE SOUTER: Well I guess I'd settle as a rhetorical point, for the fact that it's not a clear statement for you either.

MR. CLEMENT: It actually, it purported to be it said, absent a clear conviction, it wouldn't strike down the authority.

JUSTICE SOUTER: No.

MR. CLEMENT: Just to be clear. As we point out in our reply brief, if you apply the clear statement rule to Querin, it would have to come out the other way.

Because Article II of the Articles of War that were enforced at the time, were restricted to members of the United States Military. Article Fifteen, which the Court relied on, didn't expressly authorize military commissions, expressly, it did so by negative implication.

So it's simply not the case that you need an express statutory authorization. If I could reserve my time for rebuttal.

CHIEF JUSTICE REHNQUIST: Very well, Mr. Clement. Ms. Martinez, we'll hear from you.

MS. MARTINEZ: Mr. Chief Justice, and may it please the Court:

Even in wartime, America has always been a nation governed by the Rule of Law. Today the government asks this Court for a broad ruling that would allow the President unlimited power to imprison any American, anywhere, at any time without trial simply by labeling him an enemy combatant.

We ask this Court for a narrow ruling that leaves for another day the grave constitutional ruling of whether our system would permit the indefinite imprisonment, without trial, of American citizens on American soil, based on suspicion that they have associated with terrorists.

We simply ask this Court to hold that, at a minimum, Congress would have to clearly and unequivocally authorize such a departure from our nation's traditions, and that, since Congress has not done so, Mr. Padilla is entitled to be charged with a crime and to have his day in Court.

The detention at issue in this case is exactly the type of detention that our Founding Fathers were concerned about based on their experience with the British Crown, where the King had locked up citizens based --

CHIEF JUSTICE REHNQUIST: Are you -- Ms. Martinez, the authorization passed by Congress is quite broad, and it talks about force against individuals.

MS. MARTINEZ: Yes, Your Honor, but there's not reference in the text of that authorization to any power to detain American citizens on American soil based on suspicion, and there's no indication whatsoever in the debates that Congress contemplated that it might be used in such a way.

JUSTICE SCALIA: Well, you surely don't think that it excluded American citizens? I mean, certainly it gave -- it gave the President authority to wage war against American citizens if they're on the other side, didn't it?

MS. MARTINEZ: Certainly, Your Honor.

JUSTICE SCALIA: So whatever authority it gave him, there's -- there's no indication that it's limited to non-citizens.

MS. MARTINEZ: No, but what is limited to citizens is section 4001, in which Congress specifically provided that no citizen shall be imprisoned or otherwised detained by the United States except pursuant to an act of Congress.

JUSTICE SCALIA: And you would say that 4001 prevents the President from detaining on the battlefield?

MS. MARTINEZ: No, Your Honor.

JUSTICE SCALIA: Well -- well then it doesn't mean what you just said it meant.

MS. MARTINEZ: What we're talking about -- in this -- first of all, there's a general presumption against extraterritorial application of statutes, and so, in the absence of some indication that Congress intended 4001 to apply overseas, that general presumption would limit it to this country.

Moreover, the history --

JUSTICE KENNEDY: So the clear statement rule doesn't apply to 4001?

MS. MARTINEZ: Which clear statement rule, Your Honor?

JUSTICE KENNEDY: Well, I thought you were arguing for the clear statement rule.

MS. MARTINEZ: Yes, Your Honor, we are, and our argument is limited to detentions within this country.

JUSTICE KENNEDY: But your qualification is -- is only implied from the statute.

MS. MARTINEZ: Our -- our argument is that what there needs to be a clear statement of is of the authority to detain an American citizen on American soil.

And the reason for that is given, one, by the history of section 4001, in which Congress looked at the Emergency Detention Act that had been passed during the Cold War, which would have allowed the President, in case of an internal security emergency or war, to imprison individuals based on suspicion that they were associated with a foreign power and were going to engage in acts of sabotage.

JUSTICE BREYER: Well, what about hi-jackers? I mean the resolution has to do with 9/11. And the people were hi-jackers. And a lot of the hi-jackers are up in the airplane and then they land. Do you think that the resolution wasn't aimed at them in part?

MS. MARTINEZ: Your Honor, our position is that certainly the President would have inherent authority with or without this resolution to seize an individual who was engaged in an act like that that took place on 9/11.

But after that individual had been seized, in order for them--that person to be held in detention in this country if they're a citizen, in particular, there must be some express statuatory authorization that provides a framework for that ongoing detention.

And that comes not only from 4001, but also from the Due Process Clause. And --

JUSTICE KENNEDY: And if they're captured on the battlefield and then brought here , 4001 clicks into operation in your view?

MS. MARTINEZ: Our position is that 4001 applied within the United States and its text means what it says: That no person --

JUSTICE KENNEDY: Well, then you answer my question as yes.

MS. MARTINEZ: Yes, Your Honor.

JUSTICE KENNEDY: And if we found American citizens in Iraq who were firing on our forces--and brought them back here, they would have to be given an Article III trial?

MS. MARTINEZ: Your Honor, our position is that congress could provide for some alternative legislative scheme for dealing with such individuals --

JUSTICE KENNEDY: What about my question? In Iraq?

MS. MARTINEZ: At this time our position would be that such persons would have to be given an Article III trial unless Congress came in with some other provision. Yes, Your Honor.

JUSTICE GINSBURG: And why do you distinguish citizen if we're talking about someone like Padilla, who was in the United States? The Due Process Clause refers to person not citizen.

So, if, I can see a distinction between abroad and the United States. But, within the United States, if it's someone who is -- is an alien but is here with permission, a resident alien say --

MS. MARTINEZ: Yes, Your Honor. We would agree that such persons are protected by the Due Process clause.

4001 refers only to citizens but we would agree that aliens within this country might certainly be protected as well. This case simply does not present that question. But we would not disagree with that. I think --

JUSTICE KENNEDY: Well let's get to that question, let's assume that we disagree with you about 4001 and we think that--the authorization for use of military force, supercedes that. Then what is your position with respect to the rights of your client?

MS. MARTINEZ: If--if your honors believe that 4000--that the authorization was meant to specifically authorize the detention of American citizens on American soil, we would contend first that there is no limiting principle within that authorization for who may be detained.

The government claims that anyone who is associated with Al Quaeda falls within this definition --

JUSTICE BREYER: So the principle would be, if somebodys--like a missile, sent over here. You know, he's actually one of the hi-jackers or the equivalent thereof. That's an obvious limiting principle -- that people who are sent off shore, sent right over here, and we catch them mid-air.

MS. MARTINEZ: I think when you start trying to draw those lines on a case by case basis, where this individual -- because they were actually in the midst of a hi-jacking is close enough, where some other individual who's merely in the early stages of a plot might not be enough.

The difficulty of drawing those lines shows the need for clear congressional action. This is primarily a job for Congress to create, if there's a need in this country for preventitive detention of terrorists, that's a legislative job for our legislature to undertake --

JUSTICE KENNEDY: But declarations of war are just not written this way. The Iraq declaration is not--the recent declarations of war, formal declarations are not. And the AMUF is not.

MS. MARTINEZ: That's correct --

JUSTICE KENNEDY: That's just not the tradition. The President is given the authority.

MS. MARTINEZ: That's correct, Your Honor, but broad authorizations for use of force in wartime have also not traditionally been interpreted to allow the executive unlimited power over citizens.

So in cases like Duncan and Endo, this Court has said that a wartime authorization for action by the Executive should not be construed broadly but should be construed narrowly to give only the power that it clearly and unequivocally indicates.

JUSTICE KENNEDY: Well, Endo was concededly loyal and Duncan were civil crimes -- a stockbroker who was embezzling.

MS. MARTINEZ: That's correct, Your Honor. But what 4001 was intended to prevent was a claim by the Executive that his broad, inherent powers in wartime, which specifically what 4001 adressed, would be enough to allow the detention of American citizens.

JUSTICE BREYER: Can you give me a minute or so, or as long as you want, or short, but -- suppose you get to the similar place by saying that this resolution -- suppose, hypothetically, I'm not saying what my view is --

-- but hypothetically suppose you get to the same place by saying, yes, that wartime authorization still doesn't authorize departing from use of the criminal system, the ordinary criminal system for someday in the United States, but for an unusually good reason. Now we have two possible reasons advanced, one orally, that we need to question, and one in the briefs, a suggestion that this man is a ticking time bomb, and we can't reveal the evidence without destroying the intelligence.

Now, I'd like your vision of how this is supposed to play out under an ordinary criminal system, in response, perhaps, to what those claims are.

MS. MARTINEZ: Our view would be that, because of the difficulty of the question of determining, for example, as I believe Justice Kennedy asked earlier, how long would such interrogation be necessary?

Would the district court be required to take evidence on those sort of issues? In the event that there were no other alternative, we believe that would be appropriate, but we also believe that's quintessentially a question for Congress, which could hold legislative hearings, and after due deliberation come to some conclusion about what was required in this context. And that is, in fact, what our democratic allies, the United Kingdom and Israel have done in passing specific legislation about the preventive detention of suspected terrorists based on legislative finding about --

JUSTICE O'CONNOR: Well that would be, of course, perhaps desirable, but we're faced with -- with a situation of the here and now, and what do we do?

MS. MARTINEZ: Your Honor, I --

JUSTICE O'CONNOR: Do we just turn lose a ticking time bomb?

MS. MARTINEZ: No, Your Honor. I believe that, first of all, were this Court to rule that it was -- that Congressional action was required, I have no doubt that Congress would step into the breach very quickly to provide whatever authorization the Executive Branch deemed necessary.

And so I think there's no doubt that Congress would fill that measure. Here, in this particular case, the government has already says that Mr. Padilla no longer possesses any intelligence value, and so his interrogation is at an end, and at this point, after two years in detention, without any sort of hearing, without any access to counsel, it's more than appropriate that he be charged with a crime, unless Congress comes forward with some alternative scheme.

Now, if I may turn for a moment to the issue of jurisdiction. Contrary to Mr. Clement's suggestions, this case does primarily involve issues of venue and not jurisdiction.

This Court has never held that there's a hard and fast rule requiring an immediate custodian, and this Court has also not applied rigid territorial requirements about the location of a suit.

And in particular, in the Strait case, this Court made clear that the type of jurisdiction that was necessary was jurisdiction making it -- making the respondent ammenable to service or process under the long arm provisions by citing International Shoe and McGee, which are provisions applying normal rules of personal jurisdiction.

Given the particular circumstances of this case, the extensive personal involvement of Secretary Rumsfeld in this matter make him an appropriate respondent, and New York is an appropriate venue for this suit.

The government brought Mr. Padilla to New York, they placed him in Court proceedings there, counsel was appointed and litigation had begun. It was the government's choice to remove him from that forum.

But that does not change the fundamental fact that jurisdiction was proper in New York.

CHIEF JUSTICE REHNQUIST: Are you suggesting, then, that this case might be an exception to some more general rule because of the peculiar facts that you've just recited?

MS. MARTINEZ: Yes, Your Honor. I think there is no hard and fast general rule as the government states it. There are numerous exceptions already to the rule that the government articulates that can be found in prior cases.

CHIEF JUSTICE REHNQUIST: Well, maybe there should be some more -- more definite rule. Supposing we were to say that generally it's the Secretary of Defense, and his venue is in the Eastern District of Virginia?

MS. MARTINEZ: This Court might very well decide to make such a venue rule, but I would note that the government at this point in the case has waived their objection to venue by not pursuing it on appeal.

They challenge the venue in the district court and they did not appeal that.

CHIEF JUSTICE REHNQUIST: Well, but they've certainly challenged the proper custodian here.

MS. MARTINEZ: Yes, Your Honor. They've challenged the proper custodian. But as this Court's decisions in cases like Endo, like Eisentrager make clear, that the identity of the proper respondent is not a hard and fast or absolute jurisdictional rule.

JUSTICE SCALIA: That doesn't change it from -- from jurisdiction to venue. I mean venue is venue and jurisdiction is juristiction.

You may say that the juristictional rule has been so haphazard that effectivly, it -- it amounts to the same thing. And -- and that argument will stand and fall on the basis of the cases that -- that you and Mr. Clement have discussed.

But to say that this is venue is -- is simply wrong. I mean, it is a matter of the jurisdiction of the court, and it has always been treated that way by our opinions. We haven't discussed it as -- as a venue rule.

MS. MARTINEZ: Well, your honor, I -- I do agree that there is a jurstictional question and we -- we agree that -- we argue that juristiction is proper, but what Braden says is that the rule that Ahrens had announced as a hard and fast jurisdictional rule reflected nothing more than traditional venue concerns, and so Braden specifically says that -- that which was discussed in Arrings went to venue and not to juristiction. Returning --

JUSTICE SCALIA: Where you have, conceivably, proper jurisdiction in several places.

MS. MARTINEZ: Yes, your honor, and we would argue that jurisdiction was proper in New York in this case, because --

JUSTICE GINSBERG: We are talking -- if we are using the juristictional label -- it's personal juristiction, not subject matter juristiction.

MS. MARTINEZ: That's correct, Your Honor, and under this Court's decision in Strait, there was personal juristiction over Secretary Rumsfeld in New York because of his contacts with that forum.

Returning to the merits of this case, what I think is important for this court to realize is that the war on terror presents many difficult questions about the proper balance between civil liberties and national security.

Congress is the body of our government that has been -- that was entrusted by the founders for making law to deal with new situations and Congress is fully capable of considering the various parameters of any sort of scheme of detention that might be necessary, and certianly this court would have the power to review to determine wether that system established by Congress were constitutional, but what we have here is a claim by the executive to a virtually unlimited system where any person that the President deems an enemy combatant --

JUSTICE REHNQUIST: But -- but, on the basis of -- of the congressional authorization, he is not claiming it just as a -- by virtue of executive power.

MS. MARTINEZ: Well, he claims them both on the basis of inherent executive power and on the basis of the authorization.

JUSTICE REHNQUIST: Since they're both -- the weaker -- weakest claim is probably soley the executive. But I think that you have to deal with the claim that it's Congressional authorization.

MS. MARTINEZ: Yes your honor, there's simply indication that when Congress passed the authorization for use of military force, which enabled us to deploy our troops overseas, that Congress also thought that they were authorizing the indefinate military detention, without trial, of American citizens on American soil. There was no debate of such a dramatic departure from our Consutitional con -- traditions.

And just a few weeks later, when Congress passed the PATRIOT Act, it extensivly debated a provision that allowed the detention of aliens for 7 days.

JUSTICE SCALIA: The trouble is I -- I don't see how you can -- I mean, I think I can understand your saying it dosn't give him any power except a battlefield power.

I can understand that. You might read it that way. But, I can't understand reading it to say it applies to everybody, but not to United States Citizens. That line is just not there in the resolution.

MS. MARTINEZ: We would say it does not apply off the battlefield, certainly, to U.S. citizens on U.S. soil. And --

JUSTICE SCALIA: But if you -- but it does apply to ailiens. The-- the President could use force against aliens, under that resolution.

MS. MARTINEZ: This court need not decide that in this case --

JUSTICE SCALIA: I understand, but you're proposing to us an interpretation of the resolution, which I suggest, makes no sense.

MS. MARTINEZ: I --

JUSTICE SCALIA: Unless you are willing to say that all it also doen't apply to aliens that are being brought -- that-- that are committing these acts within the country.

MS. MARTINEZ: I would agree that it does not-- the authorization does not clearly indicate that it is applicable to aliens either. If you would say --

JUSTICE BREYER: You might have the power to take up the aliens and arrest them anyway because 4001 dosn't prohibit it, is that your point?

MS. MARTINEZ: Correct, Your Honor. Correct, Your Honor. That is our point, which is that the degree of specificity that would need to be required to authorize this kind of extraordinary detention of citizens would be greated and in particular with aliens, there has always been a greater power of the executive because they have no right to be here.

JUSTICE KENNEDY: And do I take it then, that you have no -- assuming that we're -- assume that 4001 has been superceded by the authorization. I assume that you have no principled basis for distinguishing between citizens and aliens insofar as detaining enemy beligerents.

MS. MARTINEZ: No your honor. As to individuals within the United States, if-- if 4001 is not at issue, because of it's specific refrence to citizens, we would say aliens within the United States would have the same-- would be in exactly the same position. Correcting --

JUSTICE KENNEDY: So -- so you would make no distinction, between the two.

MS. MARTINEZ: Correct your honor -- were it not for 4001. But we think that 4001 calls for a sp -- not just a broad authorization, but specific authorization, because 4001 was concerned with the situation where there was a general declaration of war, or where there was some type of internal emergency, and the concern was that the executive should not be able to rely on that general declaration of war or that general situation, to lock up citizens. That was precicely the situation with the Japaneese internment camps.

The President-- President Roosevelt had been authorized-- the broadest possible force you can have to fight a war. There was a declaration of complete war against Germany and Japan.

Congress looked back on that, and did not want a future president to find in such a declaration of war, the power to imprison American citizens. They wanted it to come from specific legislation.

JUSTICE SCALIA: So you say that-- that has no application on the battlefield because of the principle of no exateritorial effect of-- of United States statues?

MS. MARTINEZ: Your honor, certianly as to an overseas battlefield, 4001 because of the presumption against extraterritorality would not apply.

JUSTICE SCALIA: Alright. Now what-- what if you-- you capture an American combatant and bring him back to the United States? Then 4001 --

MS. MARTINEZ: 4001 would apply upon his return.

JUSTICE SCALIA: Would apply?

MS. MARTINEZ: Correct. And let me say, also in respect to the Japaneese internment camps, Congress was very specific in passing 4001, that what it wanted was democratic deliberation by our lawmakers about the neccissity of this kind of exteme measure, where American citizens might be detained without trial.

It didn't want that to slip under the radar under the umbrella of the general declaration of war or general use of force.

It wanted to ensure that there was specific debate by Congress on those very different Constutional questions presented in those situations, by the power of detaining citizens. And this type of --

JUSTICE GINSBERG: Did Congress, at the time of 4001, consider other systems that do allow for preventative detention, but then require the person to be periodically brought before the judge, to make certian that-- that the conditions still exist, like as is alleged in this case, the need to get evidence?

MS. MARTINEZ: Your Honor, there is certianly are many other systems that provide for that sort of judicial review.

In the United Kingdom and Israel, for example, people detained under preventive detention schemes are intitled access to council, are intitled to prompt and periodic judicial review under legislative standards, to determine wether those detentions can be continued.

And certainly there are many comparative examples out there, where legislatures have made those kind of fact findings about what is approprate. And there is no reason why our legislature could not undertake such a --

JUSTICE BREYER: Well the-- the reason, and this is why I have been harping on this thing of neccissary and approprate, that it seems to me if you take into account the traditions of the United States ordinary criminal processes, and you say, well, the-- the Forces Act, the Use of Force Act, dosn't apply at all. Then there's no way to take care of the real emergency, the real emergency, the real ticking time bomb, etc., except to go back to Congress, which may or may not act.

But if you get to the same result by reading the neccissary and approprate thing to take into account our traditions, you do leave the opening there for the possibility of a real emergency, which would warrant an extraordinary proceeding.

I'm just exposing my thought on this so that I can get your reaction.

MS. MARTINEZ: Yes your honor, I think that's-- that's absolutely correct. You could certianly read the neccissary and approprate language that way, and let me also make clear that we are not arguing that the President would have no power either under the AUMF or under his inherent powers to seize an individual in the case of immenent violent activity. We are simply talking about his power to continue to detain that individual over many months prior to that inital seizure. And so, regardless of how you read the AUMF, that's simply not what we're arguing about.

We're aruging about, once the individual has been prevented from carrying out the harmful attack, and once they're in government custody, can they simply be held forever without trial until the end of the war on terror?

Or, instead, once they're -- once they're taken into custody, must they be treated in accordance with our positive laws.

JUSTICE SOUTER: So I take it you would say that the resolution was inadaquate, to continue to hold your client in the manner in which he is being heald, even on the day in which it was passed.

This is not a two-and-a-half years later argument. It would be an argument on the day it was passed.

MS. MARTINEZ: Yes, your honor. Particularly given --

JUSTICE SOUTER: But you-- but you would-- I just want to make sure I understand you, but you would not neccissarily have objected lets say, a week after September 11th, even though there was no resolution?

MS. MARTINEZ: If there were a situation where an individual, not like my client, but an individual that were on the verge of engauging in imment violent conduct, certianly the President would have the power, even under the 4th Amendment, to seize that individual without a warrant, and bring him into custody on the basis that they were about to engauge in a violent act.

But that's a far different situation from seizing someone like my client, who is not alleged to be on the verge of imment lawless activity, was not in the process of hijacking an aircraft, but was simply alleged to be a part of a plot.

JUSTICE STEVENS: You mean, you say, it's clear he could do it if the defendant was about to engage in that kind of conduct. By what standard would you decide that he was about to-- probable cause? Proof beyond a reasonable doubt? Or just suspicion?

MS. MARTINEZ: For the initial seizure, we would say probable cause, and that would be under --

JUSTICE STEVENS: And mere suspicion, based on confidential intellience would not be sufficent?

MS. MARTINEZ: We would subbmit no, but it's -- it's possible that-- that when that question came up, the quantum of evidence might be weighed against the danger that the Executive perceived.

If the executive had some amount of suspician that there was about to be a very violent activity, it could be possible that some lesser amount might be required for the initial seizure, but we're not talking --

JUSTICE SOUTER: But that's-- that's really reasonable suspician standard then, isn't it?

MS. MARTINEZ: Yes, Your Honor. But we're not talking about that question of inital seizure here, in this case we're talking about the ongoing detention for two years of someone after there's been --

JUSTICE SCALIA: Well, but you wouldn't say just two years. You would certainly say that as soon as the President prevented the act that he feared, by taking the person into custody, he immeadately had no more authority to detain them. Wouldn't you? I mean, the --

MS. MARTINEZ: Yes, Your --

JUSTICE SCALIA: That's the way that the statue you're relying on reads. There-- there, that he shall not be detained. So two years has nothing to do with it.

MS. MARTINEZ Yes, your honor.

JUSTICE SCALIA: The next day, he should, I suppose, uh, you know, uh, hand him over to civil prosecution authorities.

MS. MARTINEZ: Yes your honor. We would say that 48 hours, under this court's decisions, if Congress thinks that a longer period of time is appopreate in terrorism cases, it can do as other countries have done and provide for a longer period of time.

In the United Kingdom is a 48 hours plus a maximum of 7 days without a charge for suspected terrorists. In the United Kingdom up to 14 days. Congress might come in and provide some legislative extension. But in the absence of that, our normal rule of 48 hours under County of Riverside would be approprate.

JUSTICE SCALIA: But we're not just talking about terrorists here, we're talking about terrorists associated with foreign forces.

MS. MARTINEZ: Yes your honor, and let me say that those are exactly the sort of individuals that the passage of 4001 was designed to address.

The Emergency Detention Act, which 4001 repealed, specifically talked about the possibility of sabetours in this country who are under the direction and control of the communist empire.

And so there was a specific concern with individuals who might be under that kind of power in 4001, and Congress wanted to make very clear that such individuals could not simply be detained at executive discresison, but could only be detained pursuant to positive law.

Positive law that is simply nonexistant in this case. The type of association with a terrorist organization is also unclear based on the government's aligations in this case.

Surely, the government cannot claim that anyone who associated with any member of Al queda at any time would be subject to indefinate military detention without trial.

Mr Padilla's mother, because she is associated with her son may be argued to have associated with Al queda, and clearly that's not what Congress had in mind, to allow that person to be locked up with no right to a lawyer, no right to a hearing for as long as the war on terror lasts.

That's simply consistant with our nations constutitional traditions, it's a limitless power that -- and there's no call for it in this case.

JUSTICE GINSBURG: Do you say that Judge -- Judge Mukasey's solution to this case was not adaquate then?

MS. MARTINEZ: Yes your honor. We do not belive that Judge Mukasey's solution was adaquate, we belived, in the first instance, clear autorization and parameters for such detention must come from Congress, defining who ought to be detained and what procedures ought to accompany those detentions.

And at that point, this court could review them for consistency with the Constutition.

But no, we-- while certianly, Judge Mukasey's order was better than what the government offered, which was no process at all, no opportunity to be heard, and no access to council, certianly, Judge Mukasey's order was better than that, but when the indefinate deprevation of a citizen's liberty is at stake, we argue that the government must come forward with more than some evidence consisting of any evidence in the record that might support the government's position that he's associated with terrorists.

When this type of exteme deprevation of liberty is at issue, something more than that is required by the due process clause and by our Constitution.

So certianly, what we would say is that this Court need not decide those issues today of what precise standard of proof ought to be given, exactly when an individual ought to be allowed access to counsel, and-- and what the limits are on how long such an individual could be held, etc. Because those are primarily questions for Congress, and this Court ought to wait until Congress has come in and provided that kind of guidance before it passes on these grave constitutional questions, which really go to the core of what our democracy is about, which is that the government cannot take citizens, in this country, off the street and lock them up in jail forever without a trial.

That's never the way our country has operated, and it's fundimentally inconsistant with our-- uh-- traditions, and so I would submit today is not the day for this court to decide wether that's permissible.

The government asks, in this case, for basically limitless power, and however grave the cirumstances of the war on terror may be, this nation has faced other grave threats.

We've had war on our soil before, and never before in the nation's history, has this Court granted the President a blank check to do whatever he wants to American citizens.

So the fact that we're at war does not mean that our normal constitutional rules do not apply. Even in wartime, espically in wartime, the founders wanted to place limits on the ability of the Executive to deprive citizens of liberty.

And they were concerned, based on the history of the British Crown, of the possibility that an unchecked executive, using excuses based on national security, using the military power to render that superior to civilian authorities, could excerse the type of-- the exact type of power that's at issue in this case. Thank you Your Honor.

CHIEF JUSTICE REHNQUIST: Thank you Ms. Martinez. Mr. Clement, you have four minutes remaing.

MR. CLEMENT: Thank you Mr. Chief Justice. I'd like to make just three points. First, on jurisdiction. It is true that the immediate custodian rule is not a hard and fast rule and exceptions have been made, but the territorial jurisdiction rule is statutorially prescribed, limits the Court's jurisdiction and is a hard and fast rule. And the best evidence of the relationship between the two are those cases where you had to relax one or the other.

When you had a citizen detained abroad, where the immeadiate custodian was abroad, outside the territorial jurisdiction of any district court, rather than relax the rule of territorial jurisdiction, the courts said you could sue the Secretary of Defence in a dictrict where there is territorial jurisdiction over the individual. It is true there are situations like straight against lehred that don't involve normal physical confinement, where the Court has had to come up wtih some rule to deal with the fact that you only have a metaphysical custodian, but in the case of a physical detention of an individual, the Court has never relaxed the rule that you file it in the district where the immeadiate custodian is located, and if you look at this court's decision, in Carbo, in Justice Rutledge's dissent in Ahrens, you will see that if you don't respect the rule in the situation like this, there's nothing left to the statutory language, and nothing left of the intent of the congress that passed it.

The second point I'd like to make, is that in looking at this case and the authority that's asserted and the role of 4001a, it's important to recognize that there is a significant difference between civilian authority and the military authority over enemy combatants.

This court, when it decided Endo, and addressed the situation of the detention of the Japanese, specifically carved out the situation of the military detention of enemy combatants and said that that is not involved here.

It stands to reason that a Congress, in passing 4001a to effectly prevent another Japanese internment camp of conceedly loyal citizens, also probably wanted to put to one side the issue of military detention of enemy combatants.

In any event, the Court need not ultimately decide 4001a has any application, because the authorization of force, clearly provides the neccessary act of Congress. It authorizes not Article III courts for these individuals, it authorizes military force.

And the relevant line here is provided by this court's case in Quirin. When somebody goes abroad, associates with the enemy, takes weapons trainings or explosives training with the enemy, and then returns to the United States, with the intent to commit hostile and warlike acts at the direction of the emeny, that it classically falls within the Quirin side of the line. It's much different than a Lambden Milligan who never left the state of Indiana, and the military has authority over that individual.

Lastly, let me just address the argument that somehow you can contstrain the authorization of force and read it only to apply in a battlefield setting.

With respect, I think that it ignores the context in which it was passed. It was passed seven days after September 11th. The resolution itself recognizes that we face continuing threats at home and abroad.

It was not passed as a matter of retrobution for those attacks, but to prevent future attacks. To read it to deny the government the authority to detain a latter day citizen version of Mohammed Atta is to simply ignore the will of Congress. Thank you Your Honor.

CHIEF JUSTICE REHNQUIST: Thank you Mr. Clement. The case is submitted.

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