Ashmus v. Calderon, 96-16141

Decision Date18 August 1997
Docket NumberNo. 96-16141,96-16141
Citation123 F.3d 1199
Parties97 Cal. Daily Op. Serv. 6530, 97 Daily Journal D.A.R. 10,687 Troy A. ASHMUS, of himself as an individual and on behalf of himself and all others similarly situated, Plaintiff-Appellee, v. Arthur CALDERON, Warden; Teena Farmon, Warden of the Central California Women's Facility; James H. Gomez, Director, California Department of Corrections; Daniel E. Lungren, Attorney General, Defendants-Appellants.
CourtU.S. Court of Appeals — Ninth Circuit

Beezer, Circuit Judge, filed dissenting opinion.

Ronald Matthias, Deputy Attorney General, San Francisco, California, for the defendants-appellants.

Michael Laurence, Sternberg, Sowards & Laurence, San Francisco, California, for the plaintiffs-appellees.

Appeal from the United States District Court for the Northern District of California; Thelton E. Henderson, District Judge, Presiding. D.C. No. CV-96-01533-TEH.

Before BEEZER and THOMPSON, Circuit Judges, and GILLMOR, * District Judge.

DAVID R. THOMPSON, Circuit Judge.

On April 24, 1996, President Clinton signed into law the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214(Act). Troy A. Ashmus, a state prisoner who has been sentenced to death, brought this action on behalf of himself and others who have been sentenced to death in California. Ashmus contends California may not take advantage of certain benefits provided by Chapter 154 of the Act because California has not yet qualified under the provisions of that Chapter. Chapter 154 of the Act applies to federal habeas corpus proceedings filed by state prisoners under sentence of death. The district court held that California does not qualify under Chapter 154, issued a declaratory judgment to that effect, and preliminarily enjoined California from attempting to invoke any of Chapter 154's benefits. Ashmus v. Calderon, 935 F.Supp. 1048 (N.D.Cal.1996).

We have jurisdiction under 28 U.S.C. § 1292(a)(1) to review the district court's preliminary injunction. In conducting this review, we first consider whether the Eleventh Amendment bars this suit. We conclude it does not. We also conclude the district court did not err by issuing its preliminary injunction. We clarify the terms of that injunction, however, to provide that California is enjoined from seeking the benefits provided by Chapter 154 under the current state of California law in cases involving habeas corpus claims of state prisoners under sentence of death.

FACTS

On the day the President signed the Act, Ashmus filed this action in the district court. In his complaint he sought a declaration that California does not qualify under Chapter 154 and that the provisions of Chapter 154 do not apply to the plaintiff class members' habeas corpus proceedings. He also sought injunctive relief prohibiting the State from asserting in any state or federal proceeding that it has qualified under Chapter 154, until the State convinces the district court that it has qualified.

In a thorough opinion, the district court granted Ashmus's request for declaratory relief, entered its declaratory judgment, and issued a preliminary injunction. Ashmus, 935 F.Supp. 1048. The district court determined that California, at the present time, does not qualify for Chapter 154's benefits and, as a result, the provisions of Chapter 154 do not apply to the class members' habeas corpus proceedings. The district court enjoined the defendants and their agents "from trying or seeking to obtain for the State of California the benefits of the provisions of Chapter 154 ... in any state or federal proceeding involving any class member." The district court also certified the class as:

All prisoners who have been sentenced to death by the State of California and are currently awaiting execution pending resolution of their state and federal challenges to their state convictions and sentences, except those such persons whose convictions and sentences were affirmed on direct appeal prior to June 6, 1989. 1

This appeal followed.

DISCUSSION
A. The Antiterrorism and Effective Death Penalty Act of 1996

The Act amended Chapter 153 of Title 28, which governs federal habeas corpus petitions filed by state prisoners. The Act also added a new Chapter 154, which deals exclusively with habeas corpus petitions filed by state prisoners who have been sentenced to death. Chapter 154 applies only if a state "opts in" and qualifies under either the "post-conviction" or "unitary review" procedures set forth respectively in sections 2261 and 2265 of Chapter 154.

California contends it has qualified under the unitary review procedure. Consistent with this position, the state defendants and their agents have threatened to invoke Chapter 154 in all proceedings involving the plaintiff class members.

Chapter 154 defines a "unitary review" procedure as "a State procedure that authorizes a person under sentence of death to raise, in the course of direct review of the judgment, such claims as could be raised on collateral attack." 28 U.S.C. § 2265(a). Thus, instead of pursuing a direct appeal of a conviction and a sentence of death and separately pursuing a collateral state habeas corpus proceeding, an appellant/petitioner in California may raise all claims in a single state appeal.

To qualify under the unitary review procedure, a state must appoint counsel to litigate collateral claims, establish standards of competency for the appointment of counsel, and provide reasonable compensation for counsel to investigate and present the collateral claims. 28 U.S.C. § 2265(a), (b). If a state satisfies these requirements and opts into the unitary review procedure, the state is entitled to the benefits of Chapter 154.

As stated by the district court, the Act provides a quid pro quo arrangement. In exchange for providing competent counsel and paying reasonable compensation for the investigation and presentation of a condemned prisoner's collateral claims before a state court, Chapter 154 offers expedited review of the federal petition, limitations on a petitioner's ability to amend a federal petition, and restrictions on a federal court's review of the merits of a federal habeas petition.

The expedited review provisions impose limitation periods for the filing and resolution of a federal habeas corpus petition. A petitioner must file a federal habeas corpus petition Thus, if a petitioner does not file a federal petition within the limitations period, any petition which is filed later is treated as if it were a second or successive petition rather than an initial petition. In the past, we have not addressed the merits of claims in a second or successive petition unless the petitioner demonstrated "cause and prejudice" or "a fundamental miscarriage of justice." See McCleskey v. Zant, 499 U.S. 467, 494-95, 111 S.Ct. 1454, 1470-71, 113 L.Ed.2d 517 (1991). Although we do not decide the question, the Act appears to apply a more stringent standard than the standard adopted by McCleskey. See 28 U.S.C. § 2244(b)(1), (b)(2), (b)(3)(C). 2

subject to limited tolling provisions, "not later than 180 days after final State court affirmance of the conviction and sentence on [unitary review] or the expiration of the time for seeking such review." 28 U.S.C. §§ 2265(c), 2263(a), (b). If the petitioner fails to file a federal petition within this time period, "no Federal court thereafter shall have the authority to enter a stay of execution in the case, unless the court of appeals approves the filing of a second or successive application under section 2244(b)." 28 U.S.C. § 2262(c).

Chapter 154 also attempts to expedite federal habeas review by requiring courts to dispose of habeas petitions within certain time limits. A district court is directed to "render a final determination and enter a final judgment on any application for a writ of habeas corpus brought under this chapter in a capital case not later than 180 days after the date on which the application is filed." 28 U.S.C. § 2266(b)(1)(A). A district court may extend this time period, one time, for thirty days, for limited and specified causes, not including a court's congested calendar. 28 U.S.C. § 2266(c)(i), (ii), (iii). Further, the district court is required to give priority to capital habeas petitions "over all noncapital matters." U.S.C. § 2266(a). If the district court does not comply with this time limitation, the state may petition the appellate court for a writ of mandamus and the appellate court must "act on the petition ... not later than 30 days after the filing of the petition." 28 U.S.C. § 2266(b)(4)(B).

If appealed, the court of appeals must issue a final decision "not later than 120 days after the date on which the reply brief is filed, or if no reply brief is filed, not later than 120 days after the date on which the answering brief is filed." 28 U.S.C. § 2266(c)(1)(A). Further, the court of appeals has only thirty days to decide whether to grant a petition for rehearing or request for rehearing en banc and, if rehearing is granted, must render a final decision "not later than 120 days after the date on which the order granting rehearing or rehearing en banc is entered." 28 U.S.C. § 2266(c)(1)(B)(i), (ii). The state may enforce the time limitations governing the appellate courts by applying for a writ of mandamus to the United States Supreme Court. 28 U.S.C. § 2266(c)(4)(B).

We emphasize that in this appeal we express no opinion on the construction or the constitutionality of the Act. Those questions are not before us. The issue we consider is whether California has qualified under the Act's unitary review procedure so that California may invoke the benefits of Chapter 154. We have highlighted the provisions of Chapter 154 above simply to illustrate the burdens the Act seems to impose on death penalty prisoners and...

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