*1 1-4 on term. See Nimmer copyright 4.01[C][1], § at 4-10.1. While
Copyright today un protected be
ancient work Books, ruling of Twin the term is
der the Instead, copyright term
not limitless. ancient work that is newly
for a discovered copyrighted domain or public
not seventy to a finite term of
would be limited author, the last
years after the death of 302(a), (b), 303(a),
§§ or December 303(a); later, § whichever is see also 4.01[C][1], §
1-4 Copyright Nirnmer on 35.23; Copyright on
4-10.1 n. 3-9 Nirnmer Thus, 9.09[A], at 9-133. Twin Books Copyright
does not conflict either or
and Patent Clause of Constitution
Eldred.
CONCLUSION reasons, foregoing
For the we find infringed copyrights
Defendants Societe’s sculptures.
in the We therefore AFFIRM grant summary judg- district copyright
ment favor of Societe its
infringement claim.
AFFIRMED CHAMBERS,
Roger M. Petitioner-
Appellant, McDANIEL, Respondent-Appellee.
E.K.
No. 07-15773. of Appeals,
United States Court
Ninth Circuit.
Argued and Submitted June 2008.
Filed Dec. 2008. *2 Bell,
Linda Marie Assistant Federal Defender, NV, Vegas, Public Las for the petitioner-appellant. Wieland, Deputy
Robert E. Senior At- General, Division, torney Criminal Justice Reno, NV, respondent-appellee. for the Before: J. CLIFFORD WALLACE and GRABER, P. Judges, SUSAN Circuit TIMLIN,* Judge. ROBERT J. District TIMLON; Opinion by Judge Dissent Judge WALLACE.
* Timlin, Judge The Honorable J. United States District for the Central District of Cali- Robert this, TIMLIN, When Chambers saw he became an- Judge: District gry, began fight. and the two Accord- appeals the district Roger Chambers, initially ing Chacon stabbed peti- second amended denial of his knife, with a got corpus, under 28 U.S.C. tion for habeas *3 away knife A struggle from Chacon. for mur- challenging his conviction ensued, which resulted Chacon’s death. and his sentence of degree in the first der sentences of life without two consecutive morning fight, The after the Chambers Nevada state parole by of a possibility went to the Washoe Medical Center. jurisdiction pursuant trial court. We have there, why When asked he was Chambers § 2253. We hold that Cham- to 28 U.S.C. responded, body “There’s a dead in the right constitutional to due bers’ federal room.” He then stated that he not did violated because the instruc- process was it. Hospital mean to do staff checked permitted at his trial given tions hospital, noting into the that Chambers he first-degree him of murder with- to convict intoxicated, appeared to be as he was un- of finding of the essential element out steady speech rapid and his and was dis- The error was not harmless. deliberation. A jointed. nurse administered a breatha- Accordingly, we reverse and remand to test, lyzer which showed a blood alcohol grant court to the writ unless district level of 0.27. retry within a State elects to Chambers police The to interview arrived Cham- reasonable time. bers, that who admitted he had killed someone and that the victim was in the BACKGROUND police Chambers told the officers bathtub. Background A. Factual met, how he and Chacon had and stated convicted of first Chambers was got angry that he had when he saw Cha- deadly degree murder with the use of cooking con heroin on one of the knives he in a trial weapon by Nevada state profession. used in his Chambers assert- court, sentenced to and Chambers was first, that him and ed Chacon stabbed death. away knife from he wrestled the Cha- charges and conviction arose out of and him back several times. con stabbed Chambers, a chef an altercation between repeatedly police He told the officers Henry Sep- by profession, and Chacon on he stabbed Chacon self-defense. met tember 1993. Chambers Chacon statement, po- Based on Chambers’ by from Francisco traveling while bus San they lice went to Circus Circus where dis- bus, Chambers and to Reno. While body in hotel room’s covered Chacon’s acquainted ingested Chacon became bathroom, they locat- bathtub. In the also arriv- together. Upon alcohol and cocaine bag pockets a black canvas with several ed Reno, ing they rented a hotel room holding knives and other kitchen utensils. ho- share in the Circus Circus casino and police next to the sink the found two Also tel. and Chacon went to the knives, sooty deposit with on the blades together, subsequent- room but Chambers suggesting they were used smoke ly played poker. went downstairs and heroin. room, to the he found When he returned into subsequently Police took Chambers burning heroin to smoke on Cham- Chacon custody, transported he to the professional chef knives. was ber’s set fornia, sitting designation. possibility parole, Department. Chambers Police
Reno writ, granted the and Chambers was rights, which he waived. Court Miranda read his life expert examined resentenced to serve two consecutive drug recognition A un- possibility parole. that he was without the and concluded terms sys- of a central nervous the influence der petition styled as then filed a determination, After tem stimulant. Appeal; of Habeas Cor- a “Notice Writ again for questioned Chambers the officers in the Neva- pus/Post-Conviction Petition” hours, recording a video camera four trial court. The court dismissed da state After Chambers was the interview. petition, upon appeal booked, ob- samples and urine were blood *4 dismissal, Supreme Court reversed the am- sample urine contained tained. The finding improperly that the trial court con- a trace of methamphetamine, phetamine, as a habeas strued document marijuana metabolites. No morphine, and simply a notice of petition, when was in his blood. narcotics were found to file a habeas Chambers’ future intent trial, autopsy of At the results petition. into evidence. presented were Chacon time, filed in the During this Chambers testified that Chacon had sev- The coroner corpus petition trial court a wounds, of which were stab most enteen asserting sixteen detailed claims for relief. However, two stab wounds superficial. appointed pro- After the court counsel to into the front chest significant:
were
one
claim
petition,
ceed with the
additional
lung
through
and the sack
passed
petition.
to the
The state trial
was added
heart, and the second in the
covering the
18,
petition April
court denied the
on
2000.
passed
that also
into the chest and
back
appealed,
Chambers
and the Nevada Su-
collapse of the
lung, causing
into a
the denial of
preme Court affirmed
Cham-
lung.
12,
July
bers’
on
2001.
guilty of first-
juryA
found Chambers
27, 2001,
July
On
Chambers filed a ha-
aggra-
murder and also found two
degree
corpus petition
beas
in federal district
warranting
circumstances
a death
vating
court. After the Federal Public Defender
was sentenced to
sentence. Chambers
appointed,
was
Chambers
filed a first
death.
petition alleging
grounds
amended
ten
government
relief.
a
The
filed motion
Background
B. Procedural
dismiss, contending that Chambers had
appealed his conviction to the
failed to exhaust his state court remedies
Court,
challenging the
Nevada
grounds
by
as to five
for relief asserted
instruction,
the ad-
reasonable doubt
granted
Chambers. The district court
evidence, and the
mission of certain
part,
finding
motion to dismiss in
four
jury.
admonish the
He
properly
failure to
exhausted,
grounds for relief had not been
argued
penalty
the death
also
including Ground One of the Petition chal-
be set aside. The
excessive and should
lenging
the state court’s
instruction
Court affirmed the con-
premeditation
and deliberation as a vio-
viction,
penalty,
set aside the death
right
lation of his constitutional
to due
directing
imposition
of a life sentence
process.
parole.
Follow-
possibility
without the
Order,
In its
the federal district court
ing petition
a
for writ mandamus
appropriate
gave
option
abandoning
sen-
arguing
State
grounds
proceeding
without the
the unexhausted
tence was two life sentences
remained,
Lambert,
voluntarily
1081,
or
on those which
Greene
(9th Cir.2002).
dismissing
the entire
to return to
state court to exhaust his state remedies
prisoner
A state
must
exhaust
grounds for relief.
for the unexhausted
federal
constitutional claim state court
court,
chose to return to state
before
federal court
consider a
2003,
3,
and on November
the district
(c).
2254(b)(1)(A),
§
claim. 28 U.S.C.
court ordered the case dismissed without
requirement,
exhaustion
first
enunciated
prejudice and stated that Chambers could
parte Royall,
734,
Ex
117 U.S.
6 S.Ct.
return to the district court and move to
(1886),
1196 extraordinary demonstrating jury- den of concerning premeditation claim Eighth Extraordinary State v. relief is warranted. See Petition for in a instruction Court, 140, 42 Nev. P.3d Supreme Court Dist. Judicial Writ filed (2002) Therefore, curiam); 12, 233, Pan v. (per be- 2003. on November Court, 222, bring fact his claim Dist. 120 Nev. Eighth did in Judicial cause Chambers curiam). court, (2004) Be- highest (per of the P.3d to the attention to happened regarding on what claim hinges cause federal decision Chambers’ “[o]ur Supreme Court was If the instruction premeditation [Nevada] his [writ]. bar that procedural apply to first time in this discretion- declined raised for the adjudicated the to it and context, available ary merits, claim then the claim on its discretion would have been within Greene, (citing F.3d at 1086 proceed.” dismiss the Castille, 109 S.Ct. at 489 U.S. have been filed grounds that it should has where the state exception recognizing deny or it without the district court claim). actually passed on comment. decided Supreme Court
The Nevada Supreme Court denied Had the Nevada Extraordinary Petition for an Chambers’ opinion, that denial without petition. denied Writ when claim with- brought have Chambers’ brief, stating simply: “This order is Court’s hold- the reach extraordinary for an proper petition ais Castille, ing in 489 U.S. validity of challenges the Petitioner
writ. that exhaustion not satisfied and sentence. of conviction judgment his *6 for presented the claim has been “where file petition on considered We have in only procedural first time a and herein, not satisfied that this and we are be in which its merits will not context by way of extraordi- intervention and special unless there are considered Ac- at this time. relief is warranted nary (Internal important reasons therefor.” petition denied.” cordingly, we order omitted); Casey marks see also quotation on the the order elaborates Cir.2004). A footnote to (9th Moore, 386 F.3d 916 rationale: Supreme Court’s “We However, not address the Castille does proper person all docu- considered have here, in- presented as Castille question matter, in or received this ments filed rejection only volved a state court’s with- requested the relief is not conclude that we of a new claim in an extraor- out comment added). (emphasis warranted.” to dinary motion and does not tell us what in fact spoken do when a court has VI, 4 of the Nevada Article section issue. Supreme the Nevada grants Constitution Here, did writs. Court jurisdiction to issue original Court (“The VI, In- deny opinion. § 4 not without comment or Art. [Neva See Nev. Const. stead, stating the court issued an order power also have Supreme Court] da shall petition that it had “considered the on file” ... and habe- to issue writs of mandamus “by way of ex- necessary or and that its intervention and also all writs as traordinary not warranted at ap of relief’ was complete exercise its proper to the court reiterat- Importantly, v. Craw this time. jurisdiction.”); see Blair pellate (9th Cir.2002). in footnote that it “had considered” ed ford, 275 F.3d all filed and received issues writ the documents Court matter, it that and that “concluded only th[e] “at the discretion relief requested is not warranted.” Pursu- court,” carries the bur- relief petitioner and the Greene, remedies, reasoning Brown, we must state (citing ant to our if therefore decide U.S. 449 n. 97 L.Ed. 469) reached the merits of Chambers’ the state court’s denial of a procedural decided the on claim or on the merits did ex- only. due grounds Whether Chambers’ Harris, haust state remedies.
process claim is exhausted turns on the
at 1128-29.
post-
We construed a bare
inquiry.
outcome of this
card denial from the California Supreme
merits,
Court as a decision on the
A
plausible reading
fair and
of the Neva-
purposes of the exhaustion requirement,
da
Court’s order of denial is that
unless that court expressly relied on a
the court considered the merits of Cham-
words,
procedural bar.
Id. In other
al-
claim,
persuaded
not
bers’
but was
as to its
though
supreme
the state
court’s re-
validity.
it
The court did not state that
sponse
claim,
ambiguous,
we adopted a
would not consider the
but rather
fact,
plausible
construction that
that it would not “intervene.”
it acted on
footnote,
explicitly
presented
the court
stated
merits
a claim
to it.
it had considered all the documents We have not overruled Harris.
court,
and that
filed with
Greene,
added;
288 F.3d at
(emphasis
reached the conclusion that relief was not
omitted);
footnote
see also Hunter v. Ais
logical reading
warranted. The most
(9th
puro, 982 F.2d
347-48 & n.
sparse
text
that the court
is
consid-
Cir.1992).
arguments
parties
ered the
and the
documentation filed
them and came to a
Therefore,
(not
unless a court expressly
conclusion about their
For a
merits.
court
implicitly)
relying
states that it is
upon a
all
consider
the materials filed
con-
bar,
we must construe an am-
junction
for writ
biguous
court response
acting
then “conclude” that relief is not warrant-
claim,
the merits of a
if such a construction
strongly suggests
ed
such
“conclu-
plausible.
comparison
A
language
sion” is on the merits. This order “cannot
in Harris —which was found to be a deci-
*7
fairly
merely procedur-
be
characterized as
by
sion on
the
the merits
California Su-
al. The court understood the nature
the
preme
language
by
the
Court —to
used
it,
pains
respond
claim and took
to
Supreme
Nevada
in
Court
the instant case
Greene,
curtly
ambiguously.”
albeit
Harris,
is instructive.
“postcard
Even
this order is curt and
its
stated “Petition for
ofWrit
ous,
previously
Corpus
we have
addressed
to Habeas
denied.”
noted in
how
We
id.;
that,
ambiguity
resolve an
of this kind.
in
See
Harris
cases where the California
Court,
Superior
see Harris v.
Supreme
upon procedural
Court relied
de-
(9th Cir.1974)
banc).
(en
1128-29
denying
peti-
As
ficiencies
aas
basis for
in
opinion
tion,
further
elucidated
our
in
the court often included after the
Greene,
in
reasoning
guides
Harris
language of denial a “citation of an author-
ambiguity:
resolution of such
ity
petition
which indicates that the
procedurally deficient.”
ry statement
Harris,
plau-
whether a
we must ascertain
requirement.
exhaustion
that
these were
sible construction exists
Harris,
case,
than in
even more
In this
cases,
the merits.
In both
decisions on
to construe the state
appropriate
it
is
Crawford,
they do. See also Blair
having been
denial as
order of
(9th Cir.2002)
(holding,
F.3d
The Nevada Su-
on the merits.
made
AEDPA
the context of a discussion about
a
here did more than issue
preme Court
limitations, that a Nevada Su-
statute
It stated
its order
postcard denial.
language as
use of similar
preme Court’s
filed
all the materials
it had “considered”
indicated that the court
in the instant case
indicates that it not
which
by
parties,
petition”).
Blair’s
“construed and denied
materials,
ruminated as
only read the
Then,
Finally,
language
by
used
the Neva-
the court stated
to their merits.
involving
in other cases
intervention was not
da
had “concluded”
extraordinary
is illumi-
petitions for
writs
A
that intervention
necessary.
conclusion
State,
In Hosier v.
121 Nev.
nating.
a consideration
necessary based on
is not
(2005)
curiam),
(per
a decision 117 P.3d
documents filed is not
of all the
years
filed two
after Chambers’
irregularity, but
decision
on a
based
extraordinary writ was de-
petition for an
on the merits.
rather a decision
nied,
Court held
analysis of another
The Ninth Circuit’s
original ju-
“[although this court retains
for a
of habe-
denying petition
writ
order
writs,
court will not
risdiction to issue
Nevada
Court is
corpus
original jurisdiction to consider
exercise its
construing
the instant
also instructive
raising
in a criminal case
a writ
F.2d
Fogliani,
In Alexander v.
order.
that could or should have been
claims
(9th Cir.1967),
the Ninth Circuit
appropriate
in an
or in an
appeal
raised
of a writ of habeas
found a denial
in the district
post-conviction proceeding
directly with the Nevada Su-
petition filed
then concludes: “we
court.” The court
“clearly
to be
on the merits”
preme Court
ju-
original
this court’s
decline to exercise
petitioner
also held that the
and therefore
original petition
to consider this
risdiction
his state court remedies
had exhausted
validity
judgment
challenging
by the
following language
based
Id.
is clear from Hosier
conviction.” What
court has
Supreme Court: “The
capa-
that the
Court is
for
release
read the
clearly
unambiguously denying
ble
finds from the face of the
corpus and
extraordinary
writ on
that peti-
attached documents
petition and
*8
that,
it
procedural grounds and
when
does
is in all re-
present
tioner’s
confinement
so,
it
the court will state that
“decline[s]
Therefore, it is ordered that
spects legal.
jurisdiction
original
exercise its
to consid-
petition
for habeas
be and the
petition.
er” the
is denied.” Two similarities ex-
same and
Here,
Supreme
the Nevada
Court did
Supreme
ist in the Nevada
Court’s orders
1)
juris-
original
to exercise its
in the instant case and in Alexander:
not “decline
Rather,
both,
petition.”
acknowledges
the court
that it has
diction to consider
Hosier,
Supreme
the Nevada
read and considered the
and all unlike
in fact
stated that it did
consider
by
parties,
the other materials filed
Court
2)
consideration,
documents and
the courts
and all other filed
after such
a conclusion based on that
find that relief is not warranted based on that
reached
The contrast makes clear
petitioner’s arguments. Again,
both
consideration.
that the denial order in this case should be
DUE PROCESS CLAIM
as a decision on the merits.
construed
merits,
On the
Chambers contends
that the
rejection
state court’s
of his due
Further,
policy
Hosiers discussion of
process argument about
jury
instruc
in that
denying
reasons for
tion on premeditation given at
trial
his
procedural grounds
rather
case
than
“resulted in a decision that was contrary
actually
ruling
weighs
on the merits
to, or involved an
application
unreasonable
construing
Supreme
favor of
the Nevada
of, clearly
law,
established Federal
as de
Court’s order here as on the merits. The
by
Supreme
termined
Court of the
points
out in
Court
Hosi-
2254(d)(1).
United
States.” 28 U.S.C.
er
“[o]riginal petitions
are not accom-
Sandoval,
(9th
Polk v.
503 F.3d
panied by
complete
appeal.
record on
Cir.2007), we held that
the same
in
Thus,
ability
this court’s
to review claims
struction on premeditation at issue here
challenging
defective,
the judgment
constitutionally
of conviction is was
and the Ne
vada court’s failure to
Further,
correct
the error
seriously limited.” Id. at 213.
contrary
clearly
“was
established feder
appellate ju-
Court’s
law,
al
by
determined
the Supreme
questions
risdiction is limited to
of law
parties
Court.” As the
acknowledge, we
alone,
many peti-
and its “consideration of
Gammie,
by
are bound
Polk.1 See Miller v.
type
require
tions of this
this court
(9th
Cir.2003)(en
appellate jurisdiction
to exceed its
because
that,
banc)(holding
unless a case is over
presented
require
the claims
often
eviden-
ruled or
clearly
becomes
irreconcilable
tiary and factual determination.” Id.
with a Supreme
holding,
Court
a three-
judge panel
by
is bound
the decisions of
Here,
question presented
pe-
in this
previous three-judge panels).
tition,
premeditation jury
whether the
in-
given
struction
at Chambers’ trial violated
Polk,
As we did in
we look here
process
his due
rights, is one of law. No at “whether
ailing
instruction
itself
factual
necessary.
determinations
are
so infected the
trial
entire
that the result
Furthermore,
ing conviction
process
violates due
...
all
the materials it would have needed
instruction ...
[T]he
must be considered
to consider this constitutional claim and in the context of the
instructions as
merits,
reach a conclusion on the
whole and the trial record.” See
as Cham-
Estelle
McGuire,
502 U.S.
bers included the
instruction at issue
(1991) (citations
475,
into one.
process.
due
violated
tion
Chambers
issue,
defines second-
when it
fuses the
other kinds of
as “all
murder
degree
here.
inquiry does not end
Our
no discussion
contains
murder” and
error oc
though a constitutional
Even
for second-de-
requirement
intent
lesser
curred,
to relief
is not entitled
Chambers
murder.
gree
that “the error had
he can show
unless
influ
injurious effect or
and
substantial
Polk, the State exac-
just as in
Finally,
jury’s verdict.”2
determining
in
ence
closing rebuttal
in its
problem
erbated
Abrahamson,
v.
507 U.S.
Brecht
premedita-
by emphasizing
argument
(1993).
L.Ed.2d 353
113 S.Ct.
instruction,
argu-
support for its
tion
to whether
grave
doubt as
“If we are
first-degree
jury should find
that the
ment
effect,
petitioner
the error had such
successive,
can be
murder: “Premeditation
v.
to the writ.” Coleman
Cal
is entitled
mind.
thoughts
instantaneous
(9th Cir.2000).
deron,
Premedi-
planned.
it to be
require
Doesn’t
ease here focused on Chambers’
The entire
arm,
knife, lifting your
pulling
tation
got
he
into an alterca
state of mind when
thoughts of
stabbing. Instantaneous
him
and stabbed
seven
tion with Chacon
That’s all
movement.
the mind to control
The fact that Chambers
teen times.
read the
You
you
premeditation.
need for
by stabbing him was not an
killed Chacon
you.”
what it tells
law. That’s
issue; instead,
arguing
was
self-defense,
the State
he acted in
while
second-degree
that the
argues
The State
sufficient evi
arguing
was
that there was
giv-
manslaughter instructions
murder and
prose
The
premeditation.
dence
show
the correct defini-
specified
in this case
en
in its
emphasized the instruction
cutor
jury would have
therefore the
tions and
premedi
closing argument to demonstrate
any
up
to clear
confusion
relied on those
Therefore,
here did not
tation.
the error
premedita-
by the instruction
created
trial,
but rather
affect a minor issue
sense, however, to
It belies common
tion.
very
the case.
went to the
heart of
jury
that a
could have ascertained
believe
first-degree
for
mur-
the correct standard
Further,
against
evidence
“[t]he
[Cham-
jury
for second-
from a
instruction
der
that it
great
precluded
was not so
bers]
murder,
instruc-
degree
when the actual
murder. The
second-degree
verdict of
first-degree murder is defective.
tion for
par-
State’s evidence on deliberation
Moreover,
jury
Polk,
a review of the
instructions
ticularly
throes of a heated The Nevada WALLACE, Circuit Judge, dissenting: summary Court’s the facts I respectfully dissent majori- from the amply Chambers’ trial demonstrates the ty’s conclusion that Chambers exhausted weak state of the evidence of deliberation: his Therefore, state court remedies. I “Chambers murdered the victim in a deny Chambers’ for writ of state, drunken which indicated no ad- and would remand to the planning, vanced during emotionally district court to petitioner direct the to file charged confrontation in which Chambers his claims in the Nevada state was wounded and courts. professional his tools State, were being ruined.” Dennis v. The majority correctly that, sets forth (2000). Nev. 13 P.3d In pursuant 2254(b)(1), to 28 U.S.C. a state light deliberation, of the weak evidence of prisoner must exhaust remedies available simply we cannot conclude the in- in state courts before a federal court structional error was harmless. “Since we consider a claim. typically Exhaustion re ‘in grave are left doubt’ about whether the quires that prisoners “state ... give the jury would have found deliberation on opportunity courts one full to resolve part if it properly [Chambers’] had been any by constitutional issues invoking one instructed, we conclude that the error had complete round of the State’s established injurious substantial and effect or influ- appellate process.” review O’Sullivan v. Polk, jury’s ence on the verdict.” Boerckel, 838, 845, 119 526 U.S. S.Ct. at 913. (1999).
3. Chambers
process
raised other issues on
due
we decline to reach
light of our decision to reverse based on the
those issues.
*11
of the order
language
the
surprisingly,
not
fairly present
did not
First, Chambers
extraordinary writ
in
the
for
jury
denying
challenging the
habeas claim
his
Supreme
Nevada
delibera
state that the
and
does not
premeditation
struction
As we
of Chambers’
Supreme Court.
considered the merits
Court
Nevada
tion to the
“sub
Roettgen Copeland,
claim.
jury
in
instruction
summarized
highest
the
state’s
claim
mitting a new
course,
the
This,
part
where I
of
is
its
in which
context
court in
suggest
in
order
No words
the
majority.
spe
absent
be considered
not
merits will
decided
Supreme
Nevada
Court
that the
fair
not constitute
does
cial circumstances
fact,
merits;
lan-
in
some
the
the case on
(9th
36, 38
Cir.
F.3d
presentation.”
opposite.
the
suggests
in
order
guage
the
his
1994). Here,
raised
the court
that
Certainly the statement
first time
for the
claim
instructions
indicate
does not
petition”
“considered the
extraordinary writ
in a petition
court
ex-
to issue the
that
the court declined
Court. Extraordi
the Nevada
con-
traordinary writ on
merits
discretionary
form of
are a
nary writs
that
It is
to assume
claims.
fair
stitutional
special
circum
relief,
only granted
and
out its
Supreme Court carries
Dep’t
v. Nev.
Gumm
stances. See
of
each
duty and
judicial
considers
Educ.,
113 P.3d
121 Nev.
is, the court
before it. That
that comes
(2005) (“[An] extraordinary writ will issue
it
whether
petition and evaluates
reads the
requested
relief
right to the
only
when
to issue
exercise its discretion
should
plain,
have no
petitioners
and the
is clear
have no
petitioners
writ in cases where
remedy in the ordi
adequate
and
speedy
remedy in the
adequate
and
“plain, speedy
law”). Thus,
did
nary course of
Clearly,
ordinary course of law.”
habeas claim to
fairly present his
not
alone do
petition”
“considered the
words
court.
highest
state’s
court evaluated the
that the
not indicate
Court’s
Second,
claim.
petitioner’s
of
merits
for ex-
denying Chambers’
order
majority
Similarly,
construes
of
dispose
did not
his
traordinary writ
“conclude”
its
use of the word
court’s
As de-
on the merits.
claim
instructions
extraordinary relief was
that
statement
above,
Court
scribed
that
strongly suggesting
not
warranted
to issue ex-
its discretion
may exercise
on the mer-
court made its conclusion
only where the
traordinary
petitioner
writs
A
jump
for me.
great
That is too
its.
adequate
and
reme-
speedy
plain,
has “no
reading
that the Nevada
more
plausible
ordinary
of law.” Id.
course
dy in the
that extraordi-
Supreme Court concluded
speedy
case,
plain,
this
pe-
because
nary
was not warranted
relief
statu-
remedy:
to follow the
adequate
and
petition for
titioner could file an amended
writ
filing
amended
tory procedures
follow tradition-
habeas
writ of
stating federal constitu-
corpus,
of habeas
bring the merits
procedures to
appellate
al
court,
claims,
trial
the state
tional
lan-
the court. The
of the claim before
any denial to
appealing
then
view.
supports
order
guage of the
The Nevada
Supreme Court.
reads “we
not satisfied
The order
are
required
not
to consider
was thus
way
extraor-
intervention
this court’s
Indeed, claim.
the merits of Chambers’
this time.”
dinary
is warranted at
relief
if the court had con-
surprising
be
added).
key?
this the
(emphasis
Is not
merits,
tradi-
given
sidered the
intervention
statement
filing
a writ of
tional method
time” leaves
Thus,
“warranted
adequate
[that]
relief.
not
corpus provided
*12
open
possibility
the court could quently, we were
engage
free to
in analyz-
time,
grant
example,
relief at a later
ing
“cryptic”
amendment to the opin-
appeal
after an
of a denial of a writ of
ion and conclude that
the state court’s
habeas
from the
trial
court.
decision was made on the merits.
Id. We
If the court
deny
had decided to
the writ
ultimately
were
persuaded that
the ex-
merits,
there would be no reason to
haustion requirement had been met be-
open
option
leave
of relief on those
cause the state court’s decision could not
merits
a future date.
fairly
“be
merely
characterized as
proce-
dural. The court understood the nature of
majority
The
acknowledges that had the
the claim and took pains
it,
to respond to
petition
Nevada
Court denied the
curtly
albeit
and ambiguously.” Id.
opinion,
Peoples
without
Castille v.
presented
Greene,
control and the claims
for the
Unlike
the Nevada Supreme
first time to the Nevada Supreme Court
Court
this case did no more than to
would not be exhausted. 489
deny
U.S.
and to issue a summary
ington Supreme (1974). Court stated that it did 1128-29 But a critical distinction not have to reach the issue raised because between Harris and the instant case is it could decide the case on narrower apparent: an appeal Harris was from a grounds. recognized Id. We that “the denial of a writ of corpus; this case Washington Supreme Court appeal would have is an from a denial of an extraordi- been within its simply deny nary discretion to explained above, writ. As the Neva- the motion or to dismiss it without com- da permitted Court is not even ment,” instead of amending opinion exercise its discretion to issue an extraor- address the motion. Id. at dinary 1087. Conse- except writ in special eircum- appeals history Chambers’ speedy While is no other there
stances, as where complex, long has been process The rule announced relief. adequate shortchange not court should to this case. federal apply not does thus in Harris *13 claims all to evaluate opportunity state’s distinguishes Alexan- reasoning Similar respect the do not merits. We on their (9th 733, 735 F.2d Fogliani, v. der an when we construe system state court Harris, claim Cir.1967). the habeas inAs writ extraordinary denying an order court as to this came in Alexander (where to review only expected the court is habeas of a writ of a denial from appeal extraordinary the merits where cases on extraordinary a denial corpus, and not a decision on necessary) being is relief Moreover, of the language the Id. relief. system court The Nevada the merits. of relief denial Court’s Nevada to address opportunity full must have on disposition clearly evinced Alexander constitu- federal of Chambers’ merits recounts, the majority merits. As denying the claims, and the order tional that order in Supreme Court’s Nevada that not indicate extraordinary writ does present petitioner’s “the that case stated has done so. Id. respects legal.” all is in confinement course, bringing is, virtue There present merits is discussion No such reason- soon as to a conclusion as litigation extraordinary denying the order But our of federal- ably system possible. in this case. writ rule requires that state courts ism v. majority cites Hosier Finally, crime a state especially when merits first — that the proposition State defen- criminal involving a state-convicted clearly and “capable of is Supreme Court corpus pro- in a challenged is dant for an denying unambiguously Therefore, I dissent. respectfully ceeding. on extraordinary writ ambiguous lan- that grounds,” be con- must therefore in this case
guage on the merits. disposition as a
strued (2005) (per 117 P.3d
Nev.
curiam). Supreme Court But unambigu- clearly and capable of equally an ex- its denial indicating
ously is on the merits. writ
traordinary District Eighth Judicial Hickey STEEL, PAPER & FOREST Court, it UNITED explicitly stated the court RY, RUBBER MANUFACTURING entertain discretion to [its] “exercise & ENERGY, ALLIED INDUSTRIAL pro- petition,” and then the merits of the INTERNA SERVICE WORKERS 105 Nev. deny petition. ceeded CLC, UNION, AFL-CIO, (1989). Why then TIONAL P.2d employed defen of members in this behalf ambiguity should construe we individually dants; Floyd, Richard denial, majority as the case as a merits similarly all situated and on behalf of not. Given advocates? We should employees; former current only spe- extraordinary are issued writs Carbejal, individually and on circumstances, Eduardo logi- I believe most cial similarly current of all situated behalf interpretation of the cal Plaintiffs-Ap employees, and former procedur- curt order is a denial on Court’s pellees, al, grounds. than substantive rather