Ashmus v. Calderon, C 93-0594 TEH.

• Decision Date: 24 December 1998
• Docket Number: No. C 93-0594 TEH.,C 93-0594 TEH.
• Citation: 31 F.Supp.2d 1175
• Court: U.S. District Court — Northern District of California
• Parties: Troy A. ASHMUS, Petitioner, v. Arthur CALDERON, Warden of California State Prison at San Quentin, Respondent.

31 F.Supp.2d 1175

Troy A. ASHMUS, Petitioner, v. Arthur CALDERON, Warden of California State Prison at San Quentin, Respondent.

No. C 93-0594 TEH.

United States District Court, N.D. California.

December 24, 1998.

COPYRIGHT MATERIAL OMITTED

Michael Laurence, Gary D. Sowards, Jean R. Sternberg, Esq., Sternberg, Sowards & Laurence, San Francisco, CA, for Petitioner.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Senior Assistant Attorney General, Dane R. Gillette, Senior Assistant Attorney General, Ronald S. Matthias, Supervising Deputy Attorney General, CA State Attorney General's Office, San Francisco, CA, for Respondent.

ORDER RE: APPLICABILITY OF CHAPTER 154

THELTON E. HENDERSON, District Judge.

I. BACKGROUND

A. Introduction

This matter comes before the Court on respondent's request that the parties submit supplemental briefs addressing the applicability of Chapter 154 of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA")¹ to these proceedings. Chapter 154 provides expedited habeas review procedures and other substantive benefits to states that qualify to "opt in." In order to qualify, states must establish a system to assure that capital defendants receive competent legal representation for their state habeas claims. In view of the important consequences that attend a decision as to whether Chapter 154 applies to these proceedings, the Court granted respondent's request and heard oral argument on the issue on November 9, 1998.

B. Procedural History

Petitioner is a prisoner sentenced to death by the State of California. The California Supreme Court appointed counsel for his automatic appeal on March 4, 1987, and affirmed his conviction and death sentence on December 5, 1991, People v. Ashmus, 54 Cal.3d 932, 2 Cal.Rptr.2d 112, 820 P.2d 214 (1991), rehearing denied, Jan. 29, 1992, cert. denied, 506 U.S. 841, 113 S.Ct. 124, 121 L.Ed.2d 79 (1992). Petitioner initiated these federal habeas proceedings on February 17, 1993, by filing an Application for Appointment of Counsel and a Request for Stay of Execution. Current counsel for petitioner were appointed in August, 1995.

On April 24, 1996, the same day that President Clinton signed AEDPA into law, Petitioner filed a class action with this Court seeking declaratory and injunctive relief from California's attempt to "opt in" and apply Chapter 154 against a class of capital defendants. Ashmus, et al. v. Calderon, et al., No. C96-1533 TEH (N.D.Cal.). After extensive briefing and hearings on the issue the Court granted declaratory relief and issued a preliminary injunction enjoining California from asserting Chapter 154. See Ashmus, No. C96-1533 TEH (N.D.Cal. May 15, 1996) (Order Modifying and Extending TRO). On June 14, 1996, the Court issued comprehensive findings of fact and conclusions of law. 935 F.Supp. 1048 (N.D.Cal. 1996). Although the Ninth Circuit affirmed this decision, Ashmus v. Calderon, 123 F.3d 1199 (9th Cir.1997), the Supreme Court reversed and remanded with instructions to dismiss the complaint for want of an Article III case or controversy sufficient to confer federal jurisdiction over the class action. Calderon v. Ashmus, 523 U.S. 740, 118 S.Ct 1694, 140 L.Ed.2d 970 (1998). The Supreme Court did not reach the merits of any rulings made by this Court or the Ninth Circuit regarding the applicability of Chapter 154.² This Court subsequently dismissed the class action, Ashmus, No. C96-1533 TEH, 1998 WL 765051 (N.D.Cal. Oct. 28, 1998) (Order Dismissing Complaint & Dissolving Injunction), and California has re-asserted the applicability of Chapter 154 in numerous capital cases statewide, including petitioner's. For the reasons enumerated below, the Court finds that California does not meet the requirements for applying Chapter 154 to petitioner.

II. DISCUSSION

A. The Statute: Chapter 154

For over a decade Congress has contemplated habeas corpus reform. Indeed, Title I of AEDPA represents the culmination of legislative deliberation on the subject going back to a 1989 proposal by the Ad Hoc Committee on Federal Habeas Corpus in Capital Cases. Formed by Chief Justice William Rehnquist in June of 1988 and chaired by former Associate Justice Lewis Powell, the committee was charged with "inquir[ing] into the `necessity and desirability of legislation directed toward avoiding delay and lack of finality' in capital cases ...."³ Chapter 154 essentially codifies the proposal made by the Powell Committee. See Ashmus, 935 F.Supp. at 1055-56.

Chapter 154 provides two distinct methods for states to "opt in" and invoke Chapter 154's rules designed to reduce delay and enhance finality: (1) a "post-conviction" procedure for states that provide, among other things, competent habeas counsel following final state conviction, and (2) a "unitary review procedure" for states that provide competent counsel for an integrated or simultaneous collateral and direct appeal.⁴ Although California is attempting to opt in under the unitary review procedure, it is worth detailing the requirements of both procedures since a proper construction of each will benefit from examination of the other.

The post-conviction procedure is set forth in section 2261. According to section 2261, Chapter 154 "shall apply to cases arising under section 2254 brought by prisoners in State custody who are subject to a capital sentence ... only if the provisions of subsection (b) and (c) are satisfied." 28 U.S.C. § 2261(a) (emphasis added). Subsection (b) provides:

This chapter is applicable if a state establishes by statute, rule of its court of last resort, or by another agency authorized by state law, a mechanism for the appointment, compensation, and payment of reasonable litigation expenses of competent counsel in State post-conviction proceedings brought by indigent prisoners whose capital convictions and sentences have been upheld on direct appeal to the court of last resort in the State or have otherwise become final for State law purposes. The rule of court or statute must provide standards of competency for the appointment of such counsel.

28 U.S.C. § 2261(b). Subsection (c) requires that any mechanism established "must offer counsel to all State prisoners under capital sentence." 28 U.S.C. § 2261(c). The mechanism must further "provide for the entry of an order by a court of record" which either appoints counsel "upon a finding that the prisoner is indigent and has accepted the offer" or denies appointment on grounds that the prisoner intelligently rejected the offer or was not indigent. Id. Unless expressly requested by the prisoner, no counsel who represented the prisoner at trial or on direct appeal may be appointed for the habeas representation. 28 U.S.C. § 2261(d). Finally, subsection (e) precludes habeas relief for ineffective or incompetent counsel during the State or Federal post-conviction process. 28 U.S.C. § 2261(e).

The unitary review procedure for appointment of competent counsel is almost identical to section 2261(b):

For purposes of this section, a "unitary review" procedure means 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. This chapter shall apply, as provided in this section, in relation to a State unitary review procedure if the State establishes by rule of its court of last resort or by statute a mechanism for the appointment, compensation, and payment of reasonable litigation expenses of competent counsel in the unitary review proceedings, including expenses relating to the litigation of collateral claims in the proceedings. The rule of court or statute must provide standards of competency for the appointment of such counsel.

28 U.S.C. § 2265(a). Thus the only difference, apart from covering states that integrate direct appeal and collateral attacks, is that section 2265(a) does not allow for a mechanism to be established by an "agency authorized by state law." Cf. 28 U.S.C. § 2261(b). Only a statute or rule of court can establish a mechanism under section 2265(a). Following and incorporating section 2261(c), the unitary review procedures require states to offer and appoint counsel for all indigent capital defendants who accept in order to qualify for the benefits of Chapter 154. 28 U.S.C. § 2265(b). The unitary review procedures also preclude trial counsel from representing a capital defendant in his direct appeal and collateral attack. Id.; cf. 28 U.S.C. § 2261(d).

To summarize, under both qualifying procedures, a state must establish: (1) a mechanism for appointment, compensation and payment of reasonable litigation expenses of competent counsel; and (2) standards provided by statute or rule of court to assure the competency of appointed counsel. Subject to narrow exceptions, a state must also offer and appoint, by entry of a court order, counsel for all indigent capital prisoners. Failure to establish any of these qualifying procedures is fatal to a claim that Chapter 154 applies.

B. The Quid Pro Quo

There are significant procedural and substantive benefits inuring to a state that qualifies to apply Chapter 154. See Lindh v. Murphy, 521 U.S. 320, ___, 117 S.Ct. 2059, 2063, 138 L.Ed.2d 481 (1997) (where Chapter 154 applies, "it will have substantive as well as purely procedural effects"). First, prisoners may not assert ineffective assistance of counsel appointed under the qualifying procedures. 28 U.S.C. § 2261(e). Second, relying on the thoroughness mandated at the state level by the qualifying procedures, Chapter 154 modifies prisoner's federal habeas rights to provide an expedited review process.⁵ Finally, and most importantly for Troy Ashmus, AEDPA provides that "Chapter 154 ... shall apply to cases pending on or after the date of enactment of this Act." 104 Pub.L. 132, 110 Stat. 1226, Section 107(c). The Supreme Court has recently...