Brown v. Vasquez, 90-56127

• Decision Date: 19 February 1992
• Docket Number: No. 90-56127,90-56127
• Citation: 952 F.2d 1164
• Parties: John G. BROWN, Petitioner-Appellee, v. Daniel VASQUEZ, Warden, Daniel E. Lungren, Attorney General of the State of California, Respondents-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1164

952 F.2d 1164

60 USLW 2455

John G. BROWN, Petitioner-Appellee, v. Daniel VASQUEZ, Warden, Daniel E. Lungren, Attorney General of the State of California, Respondents-Appellants.

No. 90-56127.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Aug. 29, 1991.

Decided Dec. 31, 1991.

As Amended Feb. 19, 1992.

Robert M. Foster, Deputy Atty. Gen., San Diego, Cal., for respondents-appellants.

William Archer and Donald Etra, Sidney & Austin, Los Angeles, Cal., for petitioner-appellee.

Kent S. Scheidegger, Criminal Justice Legal Foundation, Sacramento, Cal., for amicus curiae.

Appeal from the United States District Court for the Central District of California.

Before FLETCHER, THOMPSON and LEAVY, Circuit Judges.

DAVID R. THOMPSON, Circuit Judge:

John G. Brown is a California state prisoner who has been sentenced to death. His conviction and sentence were affirmed by the California Supreme Court. People v. Brown, 46 Cal.3d 432, 250 Cal.Rptr. 604, 758 P.2d 1135 (1988). His petition for a writ of certiorari was denied by the United States Supreme Court. Brown v. California, 489 U.S. 1059, 109 S.Ct. 1329, 103 L.Ed.2d 597 (1989). His petition for a writ of habeas corpus filed with the California Supreme Court was denied. His execution was scheduled for June 8, 1990.

On June 1, 1990, Brown, proceeding pro se, filed in the United States District Court for the Central District of California a "Request for Appointment of Counsel in Death Sentence Case and For Stay of Execution of Death Sentence." In an accompanying declaration he stated that he was under imminent sentence of death, that the attorney who represented him in state court was unavailable to represent him in his federal habeas proceeding, and that he could not afford to retain an attorney. He further stated: "I intend to file a petition for writ of habeas corpus in this Court, alleging federal constitutional errors which entitle me to relief from the judgment of death. I need the assistance of counsel in preparing and litigating the petition."

Pursuant to its Local Rule 26.8.7(b), ¹ the district court ordered Brown's execution stayed for forty-five days. The district court subsequently extended the stay for an additional thirty days, citing as a primary reason difficulty in finding appointed counsel to represent Brown. On July 30, 1990, counsel was appointed to represent Brown. On August 10, 1990, at appointed counsel's request and pursuant to the Central District's Local Rule 26.8.7(c), ² the district court granted an additional stay of 120 days to afford appointed counsel time to prepare and file Brown's habeas petition.

The state respondents moved to vacate the stay of execution. They contended the district court lacked jurisdiction because Brown had not filed a petition for habeas corpus relief, and thus, they argued, there was no proceeding pending before the district court on which to predicate a stay order under 28 U.S.C. § 2251. ³

The district court denied the motion. It held that it had jurisdiction under the All Writs Act ⁴ to issue any orders necessary to preserve its potential jurisdiction, including a stay of execution in anticipation of the filing of a petition for a writ of habeas corpus. Brown v. Vasquez, 743 F.Supp. 729, 732 (C.D.Cal.1990). The state respondents appeal. We affirm, although for reasons different from those stated by the district court.

DISCUSSION

The issue presented by this appeal is whether a district court has jurisdiction to stay the execution of a state prisoner in order to appoint counsel to assist the prisoner in preparing and filing a petition for federal habeas corpus relief. We conclude a district court has such jurisdiction. We have appellate jurisdiction under 28 U.S.C. § 1292(a)(1) ⁵.

When a death penalty prisoner has a habeas corpus proceeding pending before a federal district court, that court has jurisdiction to stay the prisoner's execution. 28 U.S.C. § 2251. Appellants contend that a "habeas corpus proceeding" cannot be considered "pending" before a district court under section 2251 until something has been filed with the court that can be interpreted as a petition for a writ of habeas corpus. ⁶ Appellants point out that what Brown filed was not a habeas petition, but simply a request and declaration seeking appointment of counsel to help him prepare a habeas petition. We agree that what Brown filed should not be interpreted as a petition for a writ of habeas corpus. ⁷ But this does not end the inquiry.

The Supreme Court has recognized that "[t]he writ of habeas corpus is the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action." Harris v. Nelson, 394 U.S. 286, 290-91, 89 S.Ct. 1082, 1086, 22 L.Ed.2d 281 (1969). It is, in essence, "the first line of defense against constitutional violations." Bounds v. Smith, 430 U.S. 817, 828, 97 S.Ct. 1491, 1498, 52 L.Ed.2d 72 (1977).

Given the fundamental importance of the writ, it is essential that it be "administered with the initiative and flexibility essential to insure that miscarriages of justice within its reach are surfaced and corrected." Harris, 394 U.S. at 291, 89 S.Ct. at 1086. The Court has "consistently rejected interpretations of the habeas corpus statute ⁸ that would suffocate the writ in stifling formalisms or hobble its effectiveness with the manacles of arcane and scholastic procedural requirements." Hensley v. Municipal Court, 411 U.S. 345, 350, 93 S.Ct. 1571, 1574, 36 L.Ed.2d 294 (1973).

In Hensley, the Court was called upon to determine whether a state prisoner who had been released on his own recognizance was "in custody" for purposes of the federal habeas corpus statute. ⁹ In holding that habeas relief is not restricted to situations where the petitioner is subject to present physical confinement, the Court emphasized that "habeas corpus is not 'a static, narrow, formalistic remedy,' but one which must retain the 'ability to cut through barriers of form and procedural mazes.' " Id. 411 U.S. at 349-50, 93 S.Ct. at 1573-74 (quoting Jones v. Cunningham, 371 U.S. 236, 243, 83 S.Ct. 373, 377, 9 L.Ed.2d 285 (1963), and Harris, 394 U.S. at 291, 89 S.Ct. at 1086).

The Harris admonition to interpret the federal habeas corpus statute with "initiative and flexibility" is especially relevant in the present case in light of the Court's recent decision in McCleskey v. Zant, --- U.S. ----, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991). In McCleskey, the Court held that the doctrine of abuse of the writ ¹⁰ barred a prisoner from asserting a constitutional claim in a subsequent federal habeas corpus proceeding when he had not raised the claim in his initial federal application and Given the teaching of McCleskey, a prisoner applying for habeas corpus relief in federal court must assert all possible violations of his constitutional rights in his initial application or run the risk of losing what might be a viable claim. This is a substantial burden. Compounding this burden, the petitioner is often illiterate or poorly educated and yet must decipher a complex maze of jurisprudence in order to determine which of his constitutional rights, if any, may have been violated. Such a task is "difficult even for a trained lawyer to master," and, understandably, is often beyond the abilities of most prisoners. Murray v. Giarratano, 492 U.S. 1, 28, 109 S.Ct. 2765, 2780, 106 L.Ed.2d 1 (1989) (Stevens, J., dissenting). It is thus not surprising that when a prisoner attempts to prepare his own habeas petition without the assistance of counsel, the product of his efforts is often a confusing and incomprehensible amalgam of claims which not only fails to protect the prisoner, but which ties up valuable court time in the inevitable struggle to comprehend what it is that is being alleged. ¹¹

                could not show either good cause for failing initially to raise the claim and prejudice resulting from such failure, or that a fundamental miscarriage of justice would result if the claim were not entertained.  McCleskey, 111 S.Ct. at 1470.   The Court also restated its position taken in Antone v. Dugger, 465 U.S. 200, 205-06 & n. 4, 104 S.Ct. 962, 964-65 & n. 4, 79 L.Ed.2d 147 (1984) (per curiam), that a habeas petitioner will not be excused from failing to raise a claim in his first federal petition on the ground that his counsel had to prepare the first petition in haste and did not have time to become familiar with the case.  McCleskey, 111 S.Ct. at 1467
                

The Supreme Court has recognized the inherent problems faced by prisoners, and by the courts, when prisoners are forced to file habeas petitions pro se. In Johnson v. Avery, the Court held that a state could not bar prisoners from furnishing assistance to other prisoners in filing habeas corpus petitions. It recognized, however, that even with the help of experienced prison "writ-writers," petitions filed without the assistance of an attorney are "often so unskillful as to be a burden on the courts which receive them." 393 U.S. 483, 488, 89 S.Ct. 747, 750, 21 L.Ed.2d 718 (1969). In his concurrence, Justice Douglas argued that the pre-petition assistance of an attorney would greatly benefit both the prisoner and the court system:

A lawyer, after examining the prisoner's transcripts or conducting an independent investigation of the facts, could immediately advise him on a course of action. Lacking the money to hire a lawyer, the prisoner must spend considerable time researching the law, preparing the required legal documents, and filing them. Sometimes years pass before the prisoner discovers what a lawyer could have told him in several weeks--that his case either has or lacks merit. The prisoners who have militantly prosecuted frivolous actions have wasted time they could have devoted to preparing themselves for release from prison. The state, by shouldering these indigent prisoners with the responsibility of acting as their own counsel, has dissipated the...