McPeters v. Brown, et al

Filing 255

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

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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: [phone]
Fax: [phone]
E-mail: [e-mail]
Attorneys for Respondent

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RONALD AVERY McPETERS,

Petitioner, DEATH PENALTY CASE

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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
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Status Report (1:95-cv-5108 LJO)

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of the matter addressed here: the authority on the state’s behalf to “settle” federal habeas

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litigation by agreeing to alter the terms of an affirmed judgment.1

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State prosecutorial authority in California is vested in both the Attorney General and the

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several counties’ elected District Attorneys. Cal. Const. art. 4, § 13; id., art. 11, § 1; Cal. Gov.

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Code §§ 12511-12512, 26500-26501. With exceptions not relevant to the instant discussion, the

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state’s interests in criminal litigation are ordinarily represented at the trial level by the District

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Attorney, and in subsequent proceedings (including direct appeals and state and federal habeas

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corpus actions) by the Attorney General. Cal. Gov. Code §§ 26500-26501; id. §§ 12511-12512.

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The relationship between the Attorney General and the District Attorneys in all matters of

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common state interest is cooperative and collaborative, although the Attorney General, as the

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state’s Chief Law Officer, has supervisory authority over the District Attorneys, as well as

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ultimate charge of all criminal law matters. Cal. Gov. Code §§ 12511, 12550.

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It follows from the foregoing that whatever authority there might be to “settle” federal

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habeas corpus litigation on behalf of the state, such authority certainly would not be vested in the

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District Attorney to the exclusion of the Attorney General. And, as we shall next explain, not

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even the Attorney General alone has such authority.

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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.
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Under California law, no judgment may be upset unless the proceedings leading to that

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judgment “resulted in a miscarriage of justice.” Cal. Const. art. 6, § 13. Whether that condition

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is satisfied is ordinarily determined by a court, although the state, in its capacity as party to a

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criminal proceeding, certainly has the authority—indeed, the duty—to confess error and prejudice

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when it determines the same to have occurred. If the relief were conferred on appeal, it would

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take the form of a reversal or modification of the judgment. It is conceivable, however, that relief

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might be conferred before judgment is even entered (in which event it might take the form of an

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order granting a new trial) or after a judgment has been affirmed on direct appeal (in which event

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it would typically take the form of an order granting a writ of habeas corpus). But in order for

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relief to be conferred at any stage pursuant to the state’s “stipulation,” the state must first satisfy

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itself that a miscarriage of justice has occurred, and the court, in turn, must concur with the state’s

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assessment. We are aware of no other provision of state law that authorizes any state executive

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officer to “stipulate,” in effect, to modification of a criminal judgment under any other

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circumstances.

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State officials believe we have no wider latitude to facilitate modifications to state

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judgments during the course of federal proceedings than we have during state proceedings.

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Indeed, as a practical matter, we commonly will have far less: By the time a state prisoner

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typically resorts to federal habeas corpus, the judgment will already have been affirmed by the

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state courts. And, assuming the petitioner had observed the exhaustion requirement, the

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particular grounds on which the judgment is attacked on federal habeas corpus will have been

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considered and rejected by the state court. Although it is not impossible that the state officials

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might discern a miscarriage of justice to have occurred where the state court found it had not, we

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think such an event would be highly unlikely.

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We recognize, however, that the circumstance relating to this proceeding that has triggered

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the Court’s suggestion that the state explore “settlement” is unrelated to any particular claim that

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petitioner has advanced for upsetting the terms of his state judgment. Instead, that circumstance

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concerns petitioner’s competence to assist his counsel with the prosecution of his pending federal

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petition. As the Court has noted, the state has already stipulated that petitioner is incompetent to
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assist his counsel. Under the prevailing Ninth Circuit law at that time, the court stayed

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petitioner’s federal habeas corpus proceedings until his competence could be restored, but it did

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not disturb the underlying state judgment. Now, of course, we know that unless there is a

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likelihood that petitioner’s competence can be restored in the foreseeable future, he is not entitled

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to the stay that has frustrated the state’s attempt to defend his presumptively valid judgment. Ryan

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v. Gonzales, ____U.S.___, 133 S.Ct. 696, 709 (2013).

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Yet, as the Court has also suggested, regardless of the outcome of these proceedings, the

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long-term prospect that petitioner will be competent to be executed may be no better than the

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prospect that his competence to assist counsel will be restored. And, even if this Court were to

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grant petitioner relief, questions regarding his competence to stand for re-trial would likely cause

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him to endure a protracted, possibly indefinite period of confinement. Under these

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circumstances, the Court has suggested that the most prudent course for all concerned would be to

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explore “settlement.”

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We have described the general limitations of the state’s ability to “settle” these proceedings.

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But even if the state was able and inclined to “settle” by, for example, agreeing to substitute

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petitioner’s death sentence with one for life without possibility of parole in exchange for

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petitioner’s voluntary dismissal with prejudice of all pending federal habeas claims—we find it

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difficult to envision how the agreement could be consummated, for the same questions

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surrounding petitioner’s competence—his competence to assist counsel, to stand trial, and to be

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executed—loom over the prospect that he could knowingly and intelligently enter into any

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settlement agreement.

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We fully share the Court’s concerns for promoting judicial economy and avoiding pointless

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litigation, and we understand, in principle, how those interests could well be served by

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“settlement.” Notwithstanding the limitations and other considerations outlined above, we remain

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committed to exploring the possibility of “settlement,” mindful that we have perhaps

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misapprehended either the Court’s expectations in that regard, petitioner’s capacity to co-

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participate in that effort, or the full range of options that might be available to state officials under

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the particular circumstances prevailing here.

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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

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/s/ Ward A. Campbell
WARD A. CAMPBELL
Supervising Deputy Attorney General
Attorneys for Respondent

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WAC:sra
SA1995XW0001
31629289.doc

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