Sechrest v. Ignacio, CV-N-92-0536-ECR.

• Decision Date: 12 September 1996
• Docket Number: CV-N-92-0536-ECR.
• Citation: 943 F.Supp. 1253
• Parties: Ricky David SECHREST, Petitioner, v. John IGNACIO et al., Respondents.
• Court: U.S. District Court — District of Nevada

Page 1253

943 F.Supp. 1253

Ricky David SECHREST, Petitioner, v. John IGNACIO et al., Respondents.

CV-N-92-0536-ECR.

United States District Court, D. Nevada.

September 12, 1996.

Robert Bruce Lindsay, Reno, NV, for Petitioner.

Robert Wieland, Attorney General's Office, Carson City, NV, for Respondents.

ORDER

EDWARD C. REED, Jr., District Judge.

Petitioner Ricky David Sechrest, a prisoner in the custody of the State of Nevada under a sentence of death, has filed a notice of appeal from this court's denial, by Order filed July 29, 1996 (Doc. # 81), of his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The court of appeals may not issue its ruling until this court first determines whether Petitioner has adequate grounds to pursue his appeal.¹ Fed.R.App.P. 22(b); McCarthy v. Harper, 449 U.S. 1309, 101 S.Ct. 827, 66 L.Ed.2d 782 (1981); Christian v. Rhode, 41 F.3d 461, 470 (9th Cir. 1994). Recent amendments to the federal statutes governing availability of the extraordinary relief afforded by the ancient writ of habeas corpus, however, demand the court's attention before it may determine whether Petitioner offers sufficient grounds to permit him to proceed with the appeal.

This year Congress passed the Antiterrorism and Effective Death Penalty Act, Pub.L. No. 104-132, 110 Stat. 1214 (April 24, 1996). Included in the AEDPA are new provisions governing appeals from a federal district court's denial of a petition under 28 U.S.C. § 2254 for a writ of habeas corpus ad subjiciendum (the so-called Great Writ) filed by a prisoner in the custody of a State. The relevant portion, Section 102 of the AEDPA, provides

Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from ... the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court.... A certificate of appealability may issue ... only if the applicant has made a substantial showing of the denial of a constitutional right.... The certificate of appealability ... shall indicate which specific issue or issues satisfy the showing required....

Antiterrorism and Effective Death Penalty Act, Pub.L. No. 104-132, tit. I, § 102, 110 Stat. 1214, 1217-18 (1996) (to be codified at 28 U.S.C. § 2253(c)).

The court must first decide whether the provisions of the AEDPA may lawfully be applied to Petitioner's cause. The determination of the applicability of intervening federal legislation to a pending case is governed by the standards announced by the United States Supreme Court in Landgraf v. U.S.I. Film Prods., 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994). Under Landgraf, whenever a case implicates a federal statute enacted subsequent to the occurrence of the "events in suit," here Petitioner's 1983 trial for the kidnapping and murder of two children, the court's first task is to determine whether Congress expressly prescribed the intervening legislation's proper reach. Landgraf, 511 U.S. at ___, 114 S.Ct. at 1505. Here, Congress failed to specify a date upon which Section 102 of the AEDPA was to become effective, nor did it specify whether Section 102 was to apply retroactively.² The court will therefore apply the provisions of the AEDPA to the instant habeas appeal unless such application would operate "retroactively". Landgraf, ibid.; Lennox v. Evans, 87 F.3d 431, 432 (10th Cir.1996).

The decision whether the application of a statute is "retroactive," however, is neither simple nor mechanical. Landgraf, 511 U.S. at ___, 114 S.Ct. at 1498. When a new statute modifies procedural rules or affects the availability of prospective relief, application of the new statute to litigation commenced prior to statute's enactment does not necessarily constitute retroactive application. Landgraf, 511 U.S. at ___ & n. 29, 114 S.Ct. at 1501, 1502 & n. 29. A statute operates "retroactively" only if its application to a case filed before its enactment "would impair rights a party possessed when [s]he acted, increase a party's liability for past conduct, or impose new duties with respect to transactions already completed." Id. at ___, 114 S.Ct. at 1505.

The United States Court of Appeals for the Ninth Circuit has already declared that the Section 102's requirement that a petitioner must make a "substantial showing of the denial of a constitutional right" is "more demanding" than the requirement, under pre-AEDPA law, that a petitioner make "a substantial showing of the denial of a federal right." Williams v. Calderon, 83 F.3d 281, 286 (9th Cir.1996). But see Lowell v. Prunty, 91 F.3d 1358, 1359 (9th Cir.1996) (citing Williams, but refusing, despite Williams, to decide whether Section 102 is "more demanding" than former 28 U.S.C. § 2253).

The Williams panel neither cited the Landgraf retroactivity rule, nor stated its reasons for concluding that the new standard of appealability was higher than that under prior law. Nonetheless, Williams does appear to have applied Landgraf's standard: The court recognized that Congress had failed to specify an effective date for Section 102 of the AEDPA. Williams, 83 F.3d at 286 n. 2. It further found the new showing required in order to obtain a certificate of appealability to be "more demanding" than the showing required to obtain a certificate of probable cause to appeal under pre-AEDPA law. The panel then refused to apply Section 102 to the petitioner, and granted a certificate of probable cause.³ Williams, 83 F.3d at 286.

The Act became effective no later than April 24, 1996, the date it was signed by the President. See Reyes v. Keane, 90 F.3d 676, 678-79 (2d Cir.1996). Petitioner Sechrest was tried for kidnapping and murder in 1983. He filed his Notice of Appeal of this court's denial of his federal habeas petition on August 28, 1996. Section 102 of the AEDPA would therefore ordinarily apply to Sechrest's appeal of this court's denial of his petition to the court of appeals. Bradley v. Richmond Sch. Bd., 416 U.S. 696, 711, 94 S.Ct. 2006, 2016, 40 L.Ed.2d 476 (1974) (stating rule that courts must apply the law in effect on the date it renders its decision, even though the law may have changed after the events giving rise to the action); United States v. The Schooner Peggy, 5 U.S. (1 Cranch) 103, 110, 2 L.Ed. 49 (1801) (Marshall, C.J.). Williams, however, appears to foreclose application of Section 102 to an appeal from the denial of a habeas petition filed prior to the enactment of the AEDPA.⁴ The court must therefore decide whether Sechrest may appeal its prior ruling under the standards governing appeals in force under former 28 U.S.C. § 2253.⁵

When a district court denies a petition for a writ of habeas corpus filed by a prisoner in the custody of a State under 28 U.S.C. § 2254, and the petitioner then appeals from that denial, the district judge who denied the petition must either issue a certificate of probable cause to appeal, or refuse to issue the certificate and set out her reasons why the certificate should not issue. Fed. R.App.P. 22(b). The court must also bear in mind the goals of the requirement of a certificate, namely the prevention of abuse of the judicial process through the taking of frivolous appeals, and the avoidance of unwarranted delay in a State's ability to impose criminal sentences, particularly sentence of death. Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 3394-95, 77 L.Ed.2d 1090 (1983); Van Pilon v. Reed, 799 F.2d 1332, 1335 (9th Cir.1986).

To obtain a certificate of probable cause to appeal the court's denial of his petition, Petitioner need not show that he ought to prevail on the merits of his claims. He must, however, make a substantial showing of the denial of a federal right, and he must demonstrate that there exist legal issues "debatable among jurists of reason," in other words, he must show that a court could resolve the issues in a different manner, or that the questions he seeks to raise on appeal "are adequate to deserve encouragement to proceed further." Barefoot v. Estelle, 463 U.S. 880, 893 & n. 4, 103 S.Ct. 3383, 3395 & n. 4, 77 L.Ed.2d 1090 (1983). In a capital case, the nature of the penalty shortly to be exacted is a proper consideration in determining whether to issue a certificate of probable cause, but is not by itself a sufficient reason to issue the certificate. Id. at 893, 103 S.Ct. at 3395.

Petitioner's previous untimely Motion for Stay of Execution⁶ (Doc # 83) sets out his grounds to appeal the earlier Order of this court denying his petition for a writ of habeas corpus. First, Petitioner complains that the court made a "wrongful finding" that he had failed to exhaust his claim that the testimony of his own psychiatrist for the State during the death penalty phase of the trial violated his Fifth Amendment right against self-incrimination. Petitioner has misunderstood the Order denying his petition. The court found, in fact, that that claim had been fairly presented to the Supreme Court of Nevada on state collateral review. Second, Petitioner claims that the court erred in counting the number of claims raised in his petition. He counts eighteen; the court counted thirty-five, five of which⁷ had been exhausted. Petitioner's disagreement with the court over the precise number of claims raised in his petition does not constitute the requisite "substantial showing" entitling him to a certificate of probable cause to appeal. Petitioner offers no other assignments of error with respect to this court's denial of habeas relief.

The court denied the petition on exhaustion grounds; Petitioner had failed to demonstrate his lack of access to further state collateral relief. 28 U.S.C. § 2254(b). The court's denial of the petition for failure to exhaust state remedies constitutes grounds to deny Petitioner a certificate of probable cause to appeal. Mason v. Smith, 148 F.2d 894, 895 (9th Cir.), cert. denied, 325 U.S. 839, 65 S.Ct....