Ashmus v. Calderon

• Citation: 935 F. Supp. 1048
• Decision Date: 14 June 1996
• Docket Number: No. C 96-1533 TEH.,C 96-1533 TEH.
• Court: U.S. District Court — Northern District of California
• Parties: Troy A. ASHMUS, et al., Plaintiffs, v. Arthur CALDERON, et al., Defendants.

935 F. Supp. 1048

Troy A. ASHMUS, et al., Plaintiffs, v. Arthur CALDERON, et al., Defendants.

No. C 96-1533 TEH.

United States District Court, N.D. California.

June 14, 1996.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Michael Laurence, Sternberg, Sowards & Laurence, San Francisco, CA, for Plaintiffs.

Morris Beatus, CA State Attorney General's Office, San Francisco, CA, for Defendants.

FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER

THELTON E. HENDERSON, Chief Judge.

INTRODUCTION

This case concerns the applicability of Title I of the Antiterrorism and Effective Death Penalty Act of 1996 ("Act"), Pub.L. 104-132, 110 Stat. 1214, to the State of California. Plaintiffs¹ contend that California has failed to comply with the Act's so-called "opt-in" provisions, as set forth in the newly created Chapter 154 of the Judicial Code. Accordingly, plaintiffs contend, the expedited review and other provisions of Chapter 154 do not, and cannot, apply to petitions brought under 28 U.S.C. § 2254 by prisoners challenging California judgments of death.

On May 24, 1996, the Court issued a short order granting plaintiffs' request for provisional class certification, declaratory relief, preliminary injunctive relief, and to proceed in forma pauperis. The Court also granted defendants' request for a temporary stay of the preliminary injunction and denied defendants' expedited motion to dismiss. In accordance with Fed.R.Civ.P. 65 and the dictates of Fed.R.Civ.P. 52(a), this memorandum opinion and order sets forth the findings of fact and conclusions of law that constitute the grounds for the Court's May 24 order.

Good cause appearing, and for the reasons discussed below, the Court also hereby GRANTS defendants' request for a partial five (5) day stay of this order, and MODIFIES its provisional certification of the class to exclude the approximately 50 death row inmates in California whose sentences were affirmed on direct appeal prior to June 6, 1989.

FINDINGS OF FACT

1. The Parties

Plaintiff Ashmus is a prisoner who has been sentenced to death by the State of California. The California Supreme Court affirmed his conviction and 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). On February 17, 1993, plaintiff instituted federal habeas proceedings challenging his conviction and death sentence by filing an Application for Appointment of Counsel and a Request for Stay of Execution in Ashmus v. Calderon, No. 93-0594-TEH (N.D.Cal.). See Special Requirements for Capital Habeas Corpus Petitions, Local Rule 296-8(b) (condemned prisoner's pro se application for appointment of counsel and for temporary stay of execution "shall be deemed to be a petition for writ of habeas corpus with leave having been granted to amend the petition upon appointment of counsel"); see also McFarland v. Scott, 512 U.S. 849, ___-___, 114 S.Ct. 2568, 2572-73, 129 L.Ed.2d 666 (1994) (concluding that a "`post-conviction proceeding' within the meaning of 21 U.S.C. § 848(q)(4)(B) is commenced by the filing of a death row defendant's motion requesting appointment of counsel for his federal habeas corpus proceeding").

Plaintiff, whose current counsel was appointed in August 1995, had anticipated filing his "finalized petition" for writ of habeas corpus by August 2, 1996.² Magistrate Judge Joan Brennan recently vacated this "presumptive" filing date, however, and no date is currently set for the filing of his petition. Ashmus v. Calderon, No. 93-0594-TEH (JB) (N.D.Cal. May 24, 1996).

As of April 1, 1996, each of the 438 other members of the proposed plaintiff class had also been convicted and sentenced to death by the State of California, and was awaiting execution. More than a quarter of the proposed class members are without counsel and likely to remain so for some time. By defendants' own admission, "Every inmate who is awaiting appointment of counsel has been `offered' counsel and that offer has been accepted; what is pending is the appointment itself." Defs.' 1st Opp'n Mem. at 16 (emphasis in original); see also Pls.' Ex. 5 at A1, Mack Reed, An Even Longer Wait on Death Row, L.A. Times, April 3, 1996, at A1, A14 (noting that 128 men and six women on death row are waiting for counsel). Approximately 145 of the proposed class members currently have pending federal habeas proceedings. On average, two to three individuals are added to the proposed class each month.

The four defendants are Arthur Calderon, Warden of San Quentin Prison and the custodian of all male persons sentenced to death and housed at that facility; Teena Farmon, Warden of the Central California Women's Facility, and custodian of all female persons sentenced to death and housed at that facility; James Gomez, Director of the California Department of Corrections; and Daniel Lungren, California Attorney General. Plaintiffs have sued each defendant in his or her official capacity and have alleged that each defendant acts under color of law.

2. The Statute

On April 24, 1996, President Clinton signed into law the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. 104-132, 110 Stat. 1214. Title I of the Act, entitled "Habeas Corpus Reform," modifies existing habeas corpus procedures contained in Chapter 153 of the Judicial Code (Title 28), and enacts a new Chapter 154, adding §§ 2261-2266 to Title 28.³ Chapter 154 offers a system of expedited review and other "benefits"⁴ to states that qualify under either of two so-called "opt in" procedures: (1) the "post-conviction" procedure provided for in § 2261 or (2) the "unitary review" procedure provided for in § 2265.

The Act, which largely codified a 1989 proposal by the Ad Hoc Committee on Federal Habeas Corpus in Capital Cases,⁵ essentially establishes a "quid pro quo arrangement under which states are accorded stronger finality rules on federal habeas review in return for strengthening the right to counsel for indigent capital defendants." House Report at 10 (emphasis added). The Act thus seeks to create an incentive for states to provide competent counsel throughout state collateral review, recognizing that such counsel is "crucial to ensuring fairness and protecting the constitutional rights of capital litigants." Powell Committee Report at 3240; see also House Report at 8; 137 Cong.Rec. at S3220 & S3222 (March 13, 1991) (Section-by-Section Analysis of the Comprehensive Violent Crime Control Act of 1991) hereinafter "1991 Analysis".⁶ In exchange for adequately providing such competent counsel, Congress offered states a potentially available mechanism for ensuring expedited and final review of federal habeas corpus petitions. 1991 Analysis, 137 Cong. Rec. at S3220 & S3222; House Report at 8 & 10; Powell Committee Report at 3239.

3. The Harm Caused by Defendants' Conduct

In public statements both prior to and since enactment of Title I, throughout this litigation, and in other cases pending before federal courts in California, defendants and their agents have consistently and vigorously maintained that California qualifies for Chapter 154's benefits under § 2265's unitary review procedure. Defendants claim that California satisfies § 2265 by virtue of a "comprehensive scheme of interlocking, cross-implementive provisions." The qualifying mechanism, defendants claim, became effective on June 6, 1989, and consists primarily of the following: (1) Cal.Gov't Code § 68511.5 (effective Jan. 1, 1984), (2) Rule 39.5 of the "Rules of Practice and Procedure Adopted by the Judicial Council and the Supreme Court" ("Rules of Court") (effective Jan. 1, 1983), (3) Rule of Court 76.5 (effective Jan. 1, 1985), (4) Section 20 of the Standards of Judicial Administration Recommended by the Judicial Council (effective Jan. 1, 1985), (5) the California Supreme Court Statement of Internal Operating Practices and Procedures ("IOPP") (Adopted Summer 1985, Revised December 1989, and in 1995), (6) the California Supreme Court Statement of Policies Regarding Cases Arising From Judgements of Death (the "June 6, 1989 Policies") (adopted June 6, 1989), and (7) In re Clark, 5 Cal.4th 750, 21 Cal.Rptr.2d 509, 855 P.2d 729 (1993). Accordingly, defendants have threatened to invoke chapter 154 in all federal court proceedings involving members of the proposed class.

Absent judicial relief from this Court, defendants' threats to invoke Chapter 154's expedited review provisions will effectively cause plaintiffs to forfeit rights to which they are entitled under Chapter 153. As the Court has previously noted,

Without a judicial determination of the rights and responsibilities of the parties to this action, prisoners under sentence of death by the State of California must necessarily guess as to whether and how Chapter 154 may constrain their ability to seek redress in the federal courts for deprivations of their constitutional rights. The absence of a clear and uniformly applicable determination that the State of California has or has not complied with the provisions of Chapter 154 forces all condemned prisoners to choose between the risk of unknowingly relinquishing their entitlement to federal habeas corpus procedures under Chapter 153, or the risk of unknowingly forfeiting any enforcement of their federal constitutional rights.

¶.

California's eligibility to proceed under Chapter 154 literally may have life or death consequences for plaintiff and members of the proposed class ...

Ashmus v. Calderon, No. C96-1533 TEH at 4-5 (N.D.Cal. May 24, 1996).

Plaintiffs will be forced to forfeit their rights under Chapter 153 as a direct result of the uncertainty over Chapter 154's applicability created by defendants' assertions. Defendants' statements during the course of this litigation leave little room for doubt that, absent...