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ASHMUS v. CALDERON

June 14, 1996

TROY A. ASHMUS, et al., Plaintiffs,
v.
ARTHUR CALDERON, et al., Defendants.



The opinion of the court was delivered by: HENDERSON

 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. Plaintiffs *fn1" 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, 820 P.2d 214 (Cal. 1991), rehearing denied, 1992 Cal. LEXIS 392, Jan. 29, 1992, cert. denied, 506 U.S. 841, 121 L. Ed. 2d 79, 113 S. Ct. 124 (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. 849 129 L. Ed. 2d 666, 114 S. Ct. 2568, 2572-73 (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. *fn2" Magistrate Judge Joan Brennan recently vacated this "presumptive" filing date, however, and no date is currently set for the filing of his 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. *fn3" Chapter 154 offers a system of expedited review and other "benefits" *fn4" 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.

 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, 855 P.2d 729 (Cal. 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).

 As a practical matter, defendants' assertions would thus secure for the State the benefits of the Act, regardless of whether California actually provides the competent counsel that states are required by Congress to give plaintiffs as a quid pro quo for receiving such benefits. For these reasons, defendants' threats effectively deprive plaintiffs of their rights under chapter 153, and, arguably, under the Due Process Clause as well. *fn7"

 As the Supreme Court recently observed, erroneously denying a state prisoner use of a first "federal habeas petition is a particularly serious matter, for that dismissal denies the petitioner the protections of the Great Writ entirely, risking injury to an important interest in human liberty." Lonchar v. Thomas, U.S. , 134 L. Ed. 2d 440, 116 S. Ct. 1293, 1299 (1996) (reversing the Eleventh Circuit' order vacating the lower court's stay of a state execution). Effectively forcing state prisoners to file hasty habeas corpus petitions, without providing the quid pro quo benefits of competent counsel, similarly risks injury to this important interest in human liberty.

 To be sure, as the Lonchar Court recognized, Congress has the power to establish statutes of limitation on habeas filings. Id. at 1301. By enacting Chapter 154, Congress has exercised that power to make a six month limitation potentially applicable to states. Presumably, Congress could have made Chapter 154 applicable to all states, regardless of their provision of competent counsel to state prisoners for state collateral review. However, Congress has not done so, and it has entrusted to the federal judiciary the responsibility and obligation for determining whether Chapter 154 applies to a given state. *fn8"

 Defendants suggest that now that Congress has enacted such potentially applicable limitations, the Court would inappropriately impose hardship on California were it to exercise its equitable powers to enjoin California from receiving the benefits of the Act. However, the Supreme Court's cautioning against judicial action which "lightly" imposes a statute of limitation in the absence of congressional action, Lonchar, 116 S. Ct. at 1301, counsels equally against this Court allowing defendants to effectively impose a potentially applicable statute of limitation where it concludes that California does not qualify for such an application.

 Whether, as plaintiffs assert, defendants' effective deprivation of their rights under chapter 153 constitutes "deprivation" within the meaning of 42 U.S.C. § 1983 raises difficult legal questions. However, as a factual matter, the Court finds that defendants' threats have caused plaintiffs to forgo their statutory rights and that, absent relief from this Court, defendants' threats will continue to cause such injury.

 Any doubts as to whether defendants' assertions are causing plaintiffs to forego their rights under Chapter 153 are readily relieved by consideration of what plaintiffs' position in this regard would be if defendants had, instead, stated that they planned to establish a unitary review procedure that would allow them in the future to invoke Chapter 154's benefits. In such a situation, plaintiffs would not face the unconscionable dilemma discussed above, and would continue to exercise their statutory and constitutional rights. While Defendants certainly have a fundamental First Amendment right to express their views in this regard, the Court concludes that the manner in which they have done so has put plaintiffs in a very different position with respect to their habeas corpus rights than they would be if defendants had not done so. *fn9"

 4. Procedural Background

 In the thirty days following plaintiffs' filing of this action on April 24, 1996, the Court held three hearings and received six rounds of briefing on the matter. On May 2, at the close of the show cause hearing on plaintiff's application for a "Temporary Restraining Order, Temporary Declaratory Relief, and Preliminary Injunctive Relief," the Court granted plaintiffs' application for a temporary restraining order ("TRO"). *fn10" On May 13, at the close of the hearing on plaintiff's application for a preliminary injunction, the Court modified and extended the TRO for an additional ten days. See Ashmus v. Calderon, No. C96-1533 TEH (N.D. Cal. May 15, 1996) (Order Modifying and Extending TRO). And on May 24, one day after the hearing on plaintiff's expedited motion for provisional class certification, defendants' expedited motion to dismiss, and other matters raised in the parties' supplemental briefs, the Court issued a brief order addressing the outstanding issues presented by the parties.

 In addition, on May 31, defendants filed an Ex Parte Application for Partial 5-Day Stay of Final Order and Judgment, for the sole purpose of facilitating defendants' anticipated application to the Ninth Circuit for a stay pending appeal. On June 3, Defendants filed an Ex Parte Application for Partial Stay of Final Order and Judgment Pending Appeal, asking the Court partially to stay its order, in lieu of defendants' seeking such a stay from the Ninth Circuit.

 In the event that any of the following Conclusions of Law are deemed to be Findings of Fact, they are incorporated by reference as Findings of Fact.

 CONCLUSIONS OF LAW

 In the event that any of the foregoing Findings of Fact are deemed to be Conclusions of Law, they are incorporated by reference as Conclusions of Law.

 I. PRELIMINARY ISSUES

 Defendants have raised a number of threshold questions concerning the Court's power to hear this case, including challenges to plaintiffs' standing, the ripeness of their claims, and the existence of a cognizable cause of action. As the Supreme Court has explained, these issues are related to, but analytically distinct from the threshold question of jurisdiction.

 
Thus it may be said that jurisdiction is a question of whether a federal court has the power, under the Constitution or laws of the United States, to hear a case, see Mansfield, C. & L. M. R. Co. v. Swan, 111 U.S. 379, 384, 4 S. Ct. 510, 512, 28 L. Ed. 462 (1884); Montana-Dakota Utilities Co. v. Northwestern Public Serv. Co., 341 U.S. 246, 249, 71 S. Ct. 692, 694, 95 L. Ed. 912 (1951); standing is a question of whether a plaintiff is sufficiently adversary to a defendant to create an Art. III case or controversy, or at least to overcome prudential limitations on federal-court jurisdiction, see Warth v. Seldin, 422 U.S. 490, 498, 95 S. Ct. 2197, 2204, 45 L. Ed. 2d 343 (1975); cause of action is a question of whether a particular plaintiff is a member of the class of litigants that may, as a matter of law, appropriately invoke the power of the court; and relief is a question of the various remedies a federal court may make available.

 Davis v. Passman, 442 U.S. 228, 239 n.18, 60 L. Ed. 2d 846, 99 S. Ct. 2264 (1979) (emphasis in original).

 A. Jurisdiction

 The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1331. Section 1331 confers jurisdiction upon the Court over "all civil actions arising under the Constitution, laws, or treaties of the United States." A lawsuit "arises under" federal law if (1) federal law creates the cause of action, or (2) "the resolution of the dispute depends upon the validity, construction, or effect of federal law, so long as the federal question is a real and substantial issue." City Nat. Bank v. Edmisten, 681 F.2d 942, 945 (4th Cir. 1982). Plaintiffs seek a declaratory judgment that Chapter 153, rather than the expedited provisions of Chapter 154, governs federal review of his state court conviction and death sentence. Thus, they have alleged facts sufficient to confer jurisdiction under either prong of this test: The Declaratory Judgment Act creates their cause of action, see Samuels v. Mackell, 401 U.S. 66, 70, 27 L. Ed. 2d 688, 91 S. Ct. 764 (1971) (declaratory judgment is "essentially an equitable cause of action"), and the dispute depends upon the construction and effect of the 1996 Act.

 The Court also has jurisdiction pursuant to 28 U.S.C. § 1343(a)(3), because, as discussed below, plaintiffs have sufficiently alleged a cause of action under 42 U.S.C. § 1983.

 B. Standing

 Article III requires a plaintiff to be sufficiently adversary to a defendant to create an actual case or controversy. A plaintiff must show that he has personally suffered some actual or threatened injury as a result of the conduct challenged in the lawsuit, that the injury can be fairly traced to the challenged actions, and that the injury is likely to be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 119 L. Ed. 2d 351, 112 S. Ct. 2130 (1992).

 Defendants challenge to plaintiffs' standing focuses almost entirely on the fact that the six-month statute of limitations created by Chapter 154, see 28 U.S.C. § 2263(a), which defendants believe "began running on April 24, 1996, as to plaintiff and all other death row inmates whose judgments were affirmed on or after June 6, 1989," *fn12" expires after August 2, 1996, the presumptive filing deadline for plaintiff Ashmus at the time that he filed the instant action. *fn13" However, defendants ignore the fact that plaintiff Ashmus must be afforded the right to understand the consequences of filing such a petition. Plaintiff must know, prior to drafting the finalized petition, whether 28 U.S.C. § 2264's limitations on federal courts' substantive review of habeas petitions ultimately will apply to the Court's review of his constitutional claims. He must also know whether to file a petition, as ordered by this Court, that contains exhausted and unexhausted claims. Finally, plaintiff must know whether § 2266's rigid time limitations for adjudication of his petition apply.

 C. Ripeness

 The basic purpose of the ripeness doctrine "is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements..." Abbott Laboratories v. Gardner, 387 U.S. 136, 148, 18 L. Ed. 2d 681, 87 S. Ct. 1507 (1967), overruled on other grounds, Califano v. Sanders, 430 U.S. 99, 51 L. Ed. 2d 192, 97 S. Ct. 980 (1977). To achieve this purpose, the doctrine sets forth a "twofold" analysis, requiring the Court to balance "both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration." Id. at 149. Both parts of this balancing test strongly favor the Court's resolution of the present dispute.

 The first part of the test examines the extent to which the issues are sharply focussed. Where, as here, the issue for analysis is, as defendants' acknowledge, "a virtually pure question of law," the issues are generally considered to be sufficiently focussed. Id.; see also Thomas v. Union Carbide Agr. Prods. Co., 473 U.S. 568, 581, 87 L. Ed. 2d 409, 105 S. Ct. 3325 (1985); Babbitt v. United Farm Workers National Union, 442 U.S. 289, 300-01, 60 L. Ed. 2d 895, 99 S. Ct. 2301 (1979) (noting that in such cases, postponement serves no purpose); id. at 303-04 (noting that, by contrast, postponement is appropriate where precise factual circumstances will affect constitutional analysis). That some of the plaintiffs may be able to exercise control over some of the ...


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