Spears v. Stewart

Citation283 F.3d 992
Decision Date24 September 2001
Docket NumberNo. 01-99000.,01-99000.
PartiesAnthony Marshall SPEARS, Petitioner-Appellee, v. Terry STEWART, Director of the Arizona Department of Corrections, and Charles Goldsmith,<SMALL><SUP>*</SUP></SMALL> Warden, Arizona State Prison &#x2014; Eyman Complex, Respondents-Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Monica Beerling Klapper, Assistant Attorney General, Phoenix, AZ, for the respondent-appellant.

Sylvia J. Lett and Dale A. Baich, Assistant Federal Public Defenders, Phoenix, AZ, for the petitioner-appellee.

Julie S. Hall, Tucson, AZ, for amici curiae.

Appeal from the United States District Court for the District of Arizona; Stephen M. McNamee, District Judge, Presiding.

Before HILL,** GRABER, and McKEOWN, Circuit Judges.

REINHARDT, Circuit Judge, with whom Circuit Judges HAWKINS, THOMAS, and PAEZ join dissenting and with whom Circuit Judge TASHIMA joins except as to Part IV(as to which he withholds judgment); Circuit Judge RAWLINSON joins except as to Part IV.A; and Circuit Judges PREGERSON, WARDLAW, W. FLETCHER, FISHER, and BERZON join as to Parts I, II, & III:

Opinion by Judge GRABER.


The opinion filed September 24, 2001, is amended as follows:

On slip opinion page 13530, footnote 2, change to:

Specifically, the court held that (1) July 17, 1998, was the relevant date for determining whether Arizona met the requirements of Chapter 154 for the purpose of Petitioner's case and that (2) Arizona's system provided (a) for the payment of reasonable litigation expenses and (b) adequate competency standards for appointed counsel. However, the court concluded that Arizona's offer of counsel did not comply with 28 U.S.C. § 2261 in other respects.

On slip opinion page 13551: delete footnote 19.

On slip opinion page 13552, line 2: delete "substantially."

With these amendments, the panel has voted to deny the petitions for panel rehearing. Judges Graber and McKeown have voted to deny the petitions for rehearing en banc, and Judge Hill has taken no position.

The full court was advised of the petitions for rehearing en banc. A judge of the court requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed. R.App. P. 35.

The petitions for rehearing and petitions for rehearing en banc are DENIED.

The decision in this case is similar to that in Bush v. Gore1 — good for this case and this case only — except that here the decision is not even good for this case. The three judge panel, consisting of two Ninth Circuit judges and one visiting judge, overrode the Chief District Judge for the District of Arizona (a former prosecutor with many years of experience in Arizona) and determined that although: (a) the question whether Arizona had opted-in to the short-fuse habeas scheme provided in Chapter 154 of the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), 28 U.S.C. §§ 2261-66, was entirely irrelevant to the outcome of the case before it; (b) the linchpin provision of the procedures by which Arizona had once sought to opt-in under Chapter 154 had already been repealed by the state; (c) the state did not even comply with its own procedures in the case before the panel (d) Arizona was unquestionably not in compliance with Chapter 154 at the time the appeal was heard; (e) in fact, the state had never at any time effectively complied with its short-lived procedures; and (f) no other state in the nation has ever been held to have successfully opted-in under Chapter 154,2 the panel would seize this opportunity to issue an advisory opinion stating that the no-longer-existent Arizona procedures were in compliance with Chapter 154's requirements. In doing so, it did not even mention that the critical Arizona provision underlying its "decision" had previously been repealed. Perhaps because the offending portion of the panel's opinion was so patently advisory, affected neither the petitioner nor any other petitioner the panel has been able to identify, and will affect no future petitioners, the call to rehear this matter en banc failed to attract the affirmative votes of a majority of the active non-recused judges notwithstanding that both parties sought an en banc rehearing. Unfortunately, as I have noted on several occasions in the past,3 our rules preclude us from advising the bar and the public whether there were actually more yes votes than no votes cast (although less than an absolute majority); whether half of the non-recused active judges voted to hear the case en banc, or a lesser number; or describe in any way the margin by which a vote may have failed. In this case, as in all others, I believe the public has a right to know how close the vote was and how each of us exercised our judicial responsibilities; that information would surely be of interest to those concerned about the manner in which the courts and particularly our court functions.

In any event, for the reasons set forth below, I disagree with the views of those of my colleagues who thought the case simply not deserving of en banc review, as well as any who may have agreed with the substance of the dicta propounded by the panel. I do so because the fact that the opinion is advisory in nature may not be apparent on its face, and because I believe that the views the panel felt it necessary to express are erroneous. Were the issue not both so novel and so important, I might have agreed with those who concluded that an opinion that has no legal effect should simply be ignored and allowed to die a quiet death. I fear, however, that the district courts of our circuit and other judges in other parts of the country may get the wrong impression of the status of this unprecedented opinion, and apply in other cases its erroneous views on what constitutes compliance with Chapter 154, unless someone points out the lack of precedential or other legal effect. To put it bluntly, neither we, nor any other court is bound by the panel's advisory declarations in this case.


The issue that the panel actually decided is routine and of no particular significance. As the panel concluded, Arizona did not appoint counsel for Spears in a timely manner under its own procedures; thus, Spears's case was not subject to the abbreviated capital review procedures provided by Chapter 154 of AEDPA. In other words, the panel held that Spears's habeas proceeding is subject to the same rules and procedures as all other capital defendants' throughout the country. This on its face is rather a mundane decision, not even worthy of publication. However, what the panel also purported to decide in the advisory portion of its opinion is both novel and highly consequential. The panel gratuitously proclaimed that Arizona had, as a general matter, opted-in to Chapter 154 by establishing a "timeliness" procedure with which the state did not and could not as a practical matter comply, and by adopting some highly questionable, if not wholly inadequate, provisions regarding attorneys fees and attorney competency standards. The consequences of the panel's unwarranted dictum, if adopted by this court or others in the future, would be enormous.

Chapter 154, to which no other state has yet successfully opted-in, provides for a short-fuse system of federal habeas review for capital prisoners for whom the state appoints counsel in accordance with the specific requirements of that Chapter. Under AEDPA, capital prisoners surrender significant post-conviction rights in exchange for what they should be entitled to in any event — competent counsel.4 What is even more extraordinary about Chapter 154 is that it establishes short time periods within which federal courts must resolve capital habeas cases, regardless of their complexity and regardless of the difficulty courts or counsel may have in obtaining necessary evidence or other materials, including records of the oft-times voluminous state proceedings. The Congressionally-established time limits could well serve to disrupt the dockets, and the ordinary handling of civil and criminal cases, in jurisdictions that cover states that have large backlogs of capital cases, such as Arizona and California. Moreover, the novel procedure raises significant constitutional questions, primarily with respect to the separation of powers between the legislative and judicial branches of government.

Given all of the above, the first decision in the nation to announce, albeit in wholly improper dicta, that a state had succeeded in opting-in to Chapter 154 is surely one of national importance that warrants en banc review.


The panel's statement that Arizona opted-in to Chapter 154's abbreviated capital review procedures is clearly unnecessary to its resolution of the case, does not affect its outcome in any manner, and constitutes an advisory opinion. The binding portion of the panel opinion holds that Spears is entitled to the one-year AEDPA statute of limitations rather than the abbreviated Chapter 154 procedures because the appointment of counsel in his case did not meet the requirements set forth in the Arizona statutory scheme.5 Thus, whether or not the Arizona scheme satisfied the requirements of Chapter 154 was entirely irrelevant to the outcome of Spears's case. Spears was entitled to the normal habeas procedures regardless of whether Arizona's now-defunct scheme met the standards for opting-in under that Chapter. Under these circumstances, the panel could and should have avoided the highly controversial question it unnecessarily reached out for and...

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