McPeters v. Brown, et al

Filing 255

STATUS REPORT by Warden, San Quentin State Prison. (Campbell, Ward)

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1 2 3 4 5 6 7 8 9 KAMALA D. HARRIS, State Bar No. 146672 Attorney General of California DANE R. GILLETTE, State Bar No. 65925 Chief Assistant Attorney General MICHAEL P. FARRELL, State Bar No. 183566 Senior Assistant Attorney General MICHAEL A. CANZONERI, State Bar No. 131649 Supervising Deputy Attorney General WARD A. CAMPBELL, State Bar No. 88555 Supervising Deputy Attorney General 1300 I Street, Suite 125 P.O. Box 944255 Sacramento, CA 94244-2550 Telephone: (916) 324-5251 Fax: (916) 322-2368 E-mail: Attorneys for Respondent 10 IN THE UNITED STATES DISTRICT COURT 11 FOR THE EASTERN DISTRICT OF CALIFORNIA 12 13 14 15 RONALD AVERY McPETERS, Petitioner, DEATH PENALTY CASE 16 17 18 19 20 21 22 23 24 25 26 27 28 Case No. 1:95-cv-5108 LJO v. STATUS REPORT PER THIS COURT’S ORDER OF JANUARY 29, 2013 KEVIN CHAPPELL, as Acting Warden of California State Prison at San Quentin, Respondent. In accordance with the Court’s order of January 29, 2013, the Attorney General has contacted and conferred with the District Attorney of Fresno County respecting the latter’s “position on settlement.” We have concluded those discussions, and it is the District Attorney’s position, as well as the Attorney General’s, that no authority exists under state law for any state official, including a District Attorney, to “settle” a proceeding initiated under 28 U.S.C. § 2254 by agreement with the petitioner to alter the terms of a criminal judgment from those reflected in the decision of a state appellate court affirming that judgment. We emphasize the narrow scope 1 Status Report (1:95-cv-5108 LJO) 1 of the matter addressed here: the authority on the state’s behalf to “settle” federal habeas 2 litigation by agreeing to alter the terms of an affirmed judgment.1 3 State prosecutorial authority in California is vested in both the Attorney General and the 4 several counties’ elected District Attorneys. Cal. Const. art. 4, § 13; id., art. 11, § 1; Cal. Gov. 5 Code §§ 12511-12512, 26500-26501. With exceptions not relevant to the instant discussion, the 6 state’s interests in criminal litigation are ordinarily represented at the trial level by the District 7 Attorney, and in subsequent proceedings (including direct appeals and state and federal habeas 8 corpus actions) by the Attorney General. Cal. Gov. Code §§ 26500-26501; id. §§ 12511-12512. 9 The relationship between the Attorney General and the District Attorneys in all matters of 10 common state interest is cooperative and collaborative, although the Attorney General, as the 11 state’s Chief Law Officer, has supervisory authority over the District Attorneys, as well as 12 ultimate charge of all criminal law matters. Cal. Gov. Code §§ 12511, 12550. 13 It follows from the foregoing that whatever authority there might be to “settle” federal 14 habeas corpus litigation on behalf of the state, such authority certainly would not be vested in the 15 District Attorney to the exclusion of the Attorney General. And, as we shall next explain, not 16 even the Attorney General alone has such authority. 17 18 19 20 21 22 23 24 25 26 27 28 1 The court is correct that “the Warden does not have settlement authority in federal cases reviewing state convictions.” (Doc. 253 at 11.) The warden’s role in federal habeas corpus litigation is nominal only. Indeed, that role amounts to a “fiction,” for habeas actions “are effectively suits against the state[]” in whose name the judgment of conviction under attack was prosecuted and secured. Seminole Tribe of Florida v. Florida, 517 U.S. 44, 178 n.61 (1996). Wardens are named the “respondent” in habeas action for one reason only: They have “ ‘the immediate custody of the party detained, with the power to produce the body of such party before the court or judge, that he may be liberated if no sufficient reason is shown to the contrary.’ ” Rumsfeld v. Padilla, 542 U.S. 426, 435 (2004) (emphasis by Court) (quoting Wales v. Whitney, 114 U.S. 564, 574 (1885); accord Nadworny v. Fair, 872 F.2d 1092, 1095 (1st Cir. 1989) (although correctional officials are the nominal respondents in federal habeas corpus actions, the real party in interest is the state); Saldano v. Roach, 363 F.3d 545, 551 (5th Cir. 2004) (“In this suit against Director Dretke, the real party in interest is the State of Texas”) (citing Diamond v. Charles, 476 U.S. 54, 57 n.2 (1986) (“A suit against a state officer in his official capacity is, of course, a suit against the State”)); Brennan v. Stewart, 834 F.2d 1252 n.6 (5th Cir. 1988) cited in Seminole Tribe, 517 U.S. at 178 n.61; see also Harris v. Nelson, 394 U.S. 286, 296 (1969) (the warden has no “personal knowledge” relating to petitioner’s arrest and trial and is not an “adversary party” contemplated under discovery rules). Wardens, who do not secure criminal judgments of conviction on behalf of the state, have no actual role in defending those judgments against direct or collateral attacks, nor do they have any authority to modify, or agree to have modified, the terms of those judgments, by “settlement” or otherwise. 2 Status Report (1:95-cv-5108 LJO) 1 Under California law, no judgment may be upset unless the proceedings leading to that 2 judgment “resulted in a miscarriage of justice.” Cal. Const. art. 6, § 13. Whether that condition 3 is satisfied is ordinarily determined by a court, although the state, in its capacity as party to a 4 criminal proceeding, certainly has the authority—indeed, the duty—to confess error and prejudice 5 when it determines the same to have occurred. If the relief were conferred on appeal, it would 6 take the form of a reversal or modification of the judgment. It is conceivable, however, that relief 7 might be conferred before judgment is even entered (in which event it might take the form of an 8 order granting a new trial) or after a judgment has been affirmed on direct appeal (in which event 9 it would typically take the form of an order granting a writ of habeas corpus). But in order for 10 relief to be conferred at any stage pursuant to the state’s “stipulation,” the state must first satisfy 11 itself that a miscarriage of justice has occurred, and the court, in turn, must concur with the state’s 12 assessment. We are aware of no other provision of state law that authorizes any state executive 13 officer to “stipulate,” in effect, to modification of a criminal judgment under any other 14 circumstances. 15 State officials believe we have no wider latitude to facilitate modifications to state 16 judgments during the course of federal proceedings than we have during state proceedings. 17 Indeed, as a practical matter, we commonly will have far less: By the time a state prisoner 18 typically resorts to federal habeas corpus, the judgment will already have been affirmed by the 19 state courts. And, assuming the petitioner had observed the exhaustion requirement, the 20 particular grounds on which the judgment is attacked on federal habeas corpus will have been 21 considered and rejected by the state court. Although it is not impossible that the state officials 22 might discern a miscarriage of justice to have occurred where the state court found it had not, we 23 think such an event would be highly unlikely. 24 We recognize, however, that the circumstance relating to this proceeding that has triggered 25 the Court’s suggestion that the state explore “settlement” is unrelated to any particular claim that 26 petitioner has advanced for upsetting the terms of his state judgment. Instead, that circumstance 27 concerns petitioner’s competence to assist his counsel with the prosecution of his pending federal 28 petition. As the Court has noted, the state has already stipulated that petitioner is incompetent to 3 Status Report (1:95-cv-5108 LJO) 1 assist his counsel. Under the prevailing Ninth Circuit law at that time, the court stayed 2 petitioner’s federal habeas corpus proceedings until his competence could be restored, but it did 3 not disturb the underlying state judgment. Now, of course, we know that unless there is a 4 likelihood that petitioner’s competence can be restored in the foreseeable future, he is not entitled 5 to the stay that has frustrated the state’s attempt to defend his presumptively valid judgment. Ryan 6 v. Gonzales, ____U.S.___, 133 S.Ct. 696, 709 (2013). 7 Yet, as the Court has also suggested, regardless of the outcome of these proceedings, the 8 long-term prospect that petitioner will be competent to be executed may be no better than the 9 prospect that his competence to assist counsel will be restored. And, even if this Court were to 10 grant petitioner relief, questions regarding his competence to stand for re-trial would likely cause 11 him to endure a protracted, possibly indefinite period of confinement. Under these 12 circumstances, the Court has suggested that the most prudent course for all concerned would be to 13 explore “settlement.” 14 We have described the general limitations of the state’s ability to “settle” these proceedings. 15 But even if the state was able and inclined to “settle” by, for example, agreeing to substitute 16 petitioner’s death sentence with one for life without possibility of parole in exchange for 17 petitioner’s voluntary dismissal with prejudice of all pending federal habeas claims—we find it 18 difficult to envision how the agreement could be consummated, for the same questions 19 surrounding petitioner’s competence—his competence to assist counsel, to stand trial, and to be 20 executed—loom over the prospect that he could knowingly and intelligently enter into any 21 settlement agreement. 22 We fully share the Court’s concerns for promoting judicial economy and avoiding pointless 23 litigation, and we understand, in principle, how those interests could well be served by 24 “settlement.” Notwithstanding the limitations and other considerations outlined above, we remain 25 committed to exploring the possibility of “settlement,” mindful that we have perhaps 26 misapprehended either the Court’s expectations in that regard, petitioner’s capacity to co- 27 28 4 Status Report (1:95-cv-5108 LJO) 1 participate in that effort, or the full range of options that might be available to state officials under 2 the particular circumstances prevailing here. 3 4 Respectfully submitted, Dated: February 26, 2013 KAMALA D. HARRIS Attorney General of California DANE R. GILLETTE Chief Assistant Attorney General MICHAEL P. FARRELL Senior Assistant Attorney General MICHAEL A. CANZONERI, Supervising Deputy Attorney General 5 6 7 8 /s/ Ward A. Campbell WARD A. CAMPBELL Supervising Deputy Attorney General Attorneys for Respondent 9 10 11 12 13 WAC:sra SA1995XW0001 31629289.doc 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 Status Report (1:95-cv-5108 LJO)

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