Martinez-Villareal v. Stewart

• Decision Date: 09 June 1997
• Docket Number: Nos. 97-80229,97-80249,P,MARTINEZ-VILLAREA,s. 97-80229
• Citation: 118 F.3d 628
• Parties: 97 Cal. Daily Op. Serv. 4850, 97 Daily Journal D.A.R. 8362 Ramonetitioner, v. Terry STEWART, Respondent. Ramonetitioner, v. Terry STEWART, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 628

118 F.3d 628

97 Cal. Daily Op. Serv. 4850, 97 Daily Journal

D.A.R. 8362

Ramon MARTINEZ-VILLAREAL, Petitioner, v. Terry STEWART, Respondent.

Ramon MARTINEZ-VILLAREAL, Petitioner, v. Terry STEWART, Respondent.

Nos. 97-80229, 97-80249.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 9, 1997.

Submitted June 9, 1997. ^*

Decided June 23, 1997.

Fredric F. Kay, Federal Public Defender, Denise I. Young, Assistant Federal Public Defender, Dale A. Baich, Office of the Federal Public Defender, Phoenix, AZ, Sean D. O'Brien, Public Interest Litigation Clinic, Kansas City, MO, for petitioner.

Bruce M. Ferg, Assistant Attorney General, Tucson, AZ, for respondent.

Application for Order to File Successive Petition for Writ of Habeas Corpus in the District Court for the District of Arizona.

Before: D. W. NELSON, LEAVY, and T. G. NELSON, Circuit Judges.

Order; Concurrence by Judge T. G. Nelson.

PER CURIAM.

Petitioner has moved for permission to file a successive habeas corpus petition in the district court pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), codified in relevant part at 28 U.S.C. § 2244. We hold that § 2244's prohibition on second or successive petitions does not apply to a petition that raises only a competency to be executed claim under Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986).

I.

Ramon Martinez-Villareal was convicted on two counts of first-degree murder and was sentenced to death. See State v. Martinez-Villareal, 145 Ariz. 441, 702 P.2d 670 (1985). Martinez-Villareal filed a petition for habeas corpus in the federal district court on March 25, 1993. He asserted, inter alia, that he was not competent to be executed. The district court dismissed this claim without prejudice as premature ¹ and granted the writ on other grounds. We reversed the district court's decision but explained that "[o]ur instruction to enter judgment denying the petition is not intended to affect any later litigation of [the competency to be executed] question." Martinez-Villareal v. Lewis, 80 F.3d 1301, 1309 n. 1 (9th Cir.1996).

On remand to the district court, Martinez-Villareal moved the court to reopen the first habeas proceeding. Martinez-Villareal feared that the newly enacted AEDPA would foreclose review of his competency claim on a second petition despite the parties' and the court's intention to address the claim once a warrant of execution had issued. On March 24, 1997, the district court denied the motion and reassured Martinez-Villareal that it had "no intention of treating the 'incompetency to be executed' claim as a successive petition."

On May 16, 1997, despite this assurance, the district court recognized that "as a result of the AEDPA, it does not have jurisdiction to entertain" Martinez-Villareal's competency claim. The district court noted that "the AEDPA effectively deprives all federal district courts of jurisdiction to entertain second petitions raising Eighth Amendment 'competency to be executed' claims." On May 19, 1997, we stayed Martinez-Villareal's execution to consider whether this is indeed the case and, if so, whether it constitutes a suspension of the writ of habeas corpus.

II.

Ford v. Wainwright holds that the Eighth Amendment "prohibits a state from carrying out a sentence of death upon a prisoner who is insane." 477 U.S. at 409-10, 106 S.Ct. at 2602. However, the determination of whether an inmate is competent to be executed cannot be made before the execution is imminent, i.e., before the warrant of execution is issued by the state. See Herrera v. Collins, 506 U.S. 390, 406, 113 S.Ct. 853, 863, 122 L.Ed.2d 203 (1993) ("[T]he issue of sanity is properly considered in proximity to the execution.").

When Martinez-Villareal first raised his competency claim in federal court, the State of Arizona had not yet issued a warrant of execution. Thus, although we disposed of every other claim raised by Martinez-Villareal in his first habeas petition, we declined to address his competency claim because it was premature. See Martinez-Villareal, 80 F.3d at 1309 n. 1.

Even if the State had issued its warrant of execution prior to our consideration of Martinez-Villareal's first habeas petition, his competency claim still would have been premature. In Lonchar v. Thomas, --- U.S. ----, ----, 116 S.Ct. 1293, 1297, 134 L.Ed.2d 440 (1996), the Supreme Court instructed that "if the district court cannot dismiss the [first habeas] petition on the merits before the scheduled execution, it is obligated to address the merits and must issue a stay to prevent the case from becoming moot." Once this stay has been issued, the execution is not imminent, and the competency claim becomes premature. Accordingly, a competency claim cannot be asserted in a first habeas petition.

Under the AEDPA, such a claim cannot be asserted in a second petition either. Section 2244 of the AEDPA divides the world of second or successive petitions into two categories: Those that raise claims that were presented in a previous petition, and those that raise claims that were not presented in a previous petition. A claim that was presented in a prior petition must be dismissed. 28 U.S.C. § 2244(b)(1). This sanction applies to a competency claim raised in a first petition even though that claim can never be adjudicated because it will always be premature. Accordingly, a petitioner must reserve his colorable competency claim and present it as a new claim in a second petition. But a claim that was not presented in a prior petition must be dismissed unless

(A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or

(B) (i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and

(ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.

28 U.S.C. § 2244(b)(2).

The gateway described in subsection (A) does not apply to a competency claim because the constitutional right upon which such a claim is based was announced in 1986. The gateway described in subsection (B) does not apply because competency to be executed is not an issue of guilt or innocence. See Greenawalt v. Stewart, 105 F.3d 1268, 1277 (9th Cir.) ("[T]he new 28 U.S.C. § 2244(b)(2)(B) forecloses all successive-petition review of constitutional claims unrelated to guilt or innocence."), cert. denied, --- U.S. ----, 117 S.Ct. 794, 136 L.Ed.2d 735 (1997). It thus appears that the automatic stay accompanying a first habeas petition and the inapplicable gateways provided by the AEDPA foreclose any federal review of a death row inmate's competency to be executed.

III.

We are asked to decide whether this predicament constitutes an unconstitutional suspension of the writ of habeas corpus. The Suspension Clause provides that "[t]he Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." U.S. Const., Art. I, § 9, cl. 2. ² Martinez-Villareal has demonstrated that a district court will never be able to hear his (or anybody's) competency to be executed claim. Whether this amounts to an unconstitutional suspension of the writ depends upon whether any federal court is authorized to entertain Martinez-Villareal's competency claim.

We already have noted how the new statute precludes a federal district court from hearing a colorable competency claim on either a first or second petition. Thus, whether the writ has been suspended depends upon whether or not the Supreme Court may entertain a colorable competency claim in the exercise of its jurisdiction to hear original habeas applications. ³

This question was not specifically answered in Felker. In Felker, the Court concluded that the "gatekeeping" system of the new Act, codified at 28 U.S.C. § 2244(b)(3), whereby a petitioner must obtain the permission of the court of appeals before filing a second or successive petition in the district court, "does not apply to our consideration of habeas petitions because it applies to applications 'filed in the district court.' " Felker v. Turpin, --- U.S. ----, ----, 116 S.Ct. 2333, 2339, 135 L.Ed.2d 827 (1996). But the Court did not decide the question of whether it was bound by the restrictions imposed by §§ 2244(b)(1) and (2)-the subsections that specifically foreclose consideration of Martinez-Villareal's competency claim.

The Court did, however, provide us with signposts suggesting its future response to this question. First, the Court noted that "[w]hether or not we are bound by these restrictions [of §§ 2244(b)(1) and (2) ], they certainly inform our consideration of original habeas petitions." Id.

Second, the Court's reason for concluding that it is not bound by § 2244(b)(3) strongly suggests that it is bound by §§ 2244(b)(1) and (2). Section 2244(b)(3) discusses petitions that are filed "in the district court." The Supreme Court inferred that Congress therefore did not intend for that subsection to apply to petitions filed in the Supreme Court. Unlike § 2244(b)(3), §§ 2244(b)(1) and (2) do not contain limiting language and refer generally to all second or successive petitions. If § 2244(b)(3) does not apply to the Supreme Court because it is expressly limited to petitions filed in the district court, then §§ 2244(b)(1) and (2) should apply to the Supreme Court because they are not similarly limited.

Taken together, these signposts suggest that even the Supreme Court is bound by the new limitations on habeas review imposed by § 2244(b)(1) and (2). ⁴ If we are correct, then a state prisoner's competency claim...