Ramon MARTINEZ-VILLAREAL, Petitioner, v. Terry STEWART, Respondent; Ramon MARTINEZ-VILLAREAL, Petitioner, v. Terry STEWART, Respondent

60(b) сorpus apply appeals or successive habeas filing authorize the of Rule presented originally even when motion district court. Court. See 28 U.S.C. 2244(b). If these restrictions V original juris Court’s Recall the Mandate diction, then relief on to be exe granted by any cuted claims could never Martinez-Villareal moves this court to re- result in might federal court. This an uncon 94-99011, call the mandate issued Nos. 94- suspension of the writ stitutional of habeas deny 99012. Because this court’s decision to corpus.3 prema- to execute claim as correct, again ture was decline to do so. importance Because Any sought available relief must be under AEDPA Villareal’s that the unconstitu- current law. suspends tionally corpus writ petitioners present for who to MOTIONS FOR CERTIFICATE OF claim, stay executed we issue of execu- PROBABLE AND REMAND CAUSE FOR parties supple- tion and order the to submit 60(b) FILE AND TO RULE MOTION TO briefing question. mental on this discrete DENIED; THE RECALL MANDATE EX- AEDPA, Under the this court must decide STAYED; ECUTION SUPPLEMENTAL thirty days grant deny within whether to or a BRIEFING ORDERED. motion to file a subsequent See 28 2244(b)(2)(D). Accordingly,

U.S.C. thirty days May shall not exceed from

16,1997, date Martinez-Villareal filed his subsequent рetition.

motion to file a supplemental

tinez-Villareal shall file a brief addressing within issue MARTINEZ-VILLAREAL, Ramon days seven the date The order. Petitioner, respond State of Arizona shall within seven days of the date that Martinez-Villareal’s brief is filed. Terry STEWART, Respondent. MARTINEZ-VILLAREAL, Ramon III Petitioner, Certificate of Probable Cause in case Because No. 97-99009 we ruled on Terry STEWART, Respondent. Martinez-Villareal’s motion a certificate cause, probable deny mo- identical 97-80229, Nos. 97-80249. tion in No. 97-80229. Appeals, United States Court of Ninth Circuit.

IV Argued and Submitted June 60(b) Remand to File Rule Motiоn * June Submitted 1997. Martinez-Villareal moves for remand 60(b) file a leave to Fed.R.Civ.P. motion Decided June deny district court. We be motion (1) cause: there pending appeal is no (2)

remand;

pointed requiring to no law the court of Stewart,

3. Greenawalt v. F.3d (9th 1997) (section Cir. claim cannot be 2244 forecloses all decided first habeas succes sive-petition review tion. of constitutional unre * innocence) ‍‌​‌‌‌‌‌​‌‌​​‌‌​‌​​​​​​‌‌‌‌​‌‌‌​‌‌​​‌‌​​‌‌‌​​​​​​‍guilt unanimously lated to or did panel not decide this finds this case suitable for claim, issue. sentencing argument pursuant Unlike Greenawalt’s submission oral without

629 Defender, Kay, Fredriс F. Federal Public Young, I. Assistant Federal Public Denise Baieh, Defender, A. Feder- Dale Office Defender, Phoenix, AZ, D. al Public Sean Clinic, O’Brien, Litigation Interest Public MO, City, petitioner. for Kansas Attorney Ferg, Bruce M. Assistant Gener- Tucson, al, AZ, respondent. LEAVY, NELSON, T.

Before: D. W. NELSON, Judges. Circuit G.

Order; by Judge T. G. Concurrence Nelson.

PER CURIAM. permission moved for to file

Petitioner has corpus petition in the successive habeas the Antiterrorism pursuant Penalty Act of 1996 Effective Death (“AEDPA”), part at 28 relevant codified § 2244’s prohi hold 2244. We U.S.C. petitions does on or successive bition raises under Ford Wainwright, 477 U.S. (1986). L.Ed.2d I. was convicted

Ramon Martinez-Villareal first-dеgree murder and was two counts of on See v. Martinez- sentenced to death. State Villareal, Ariz. 702 P.2d for habeas filed a district court March corpus the federal alia, asserted, 25,1993. that he was inter He competent The district to be executed. 34(a) R.App. 34-4. Fed. P. and Ninth Cir. R. prejudice this claim without cannot be made before the execution is immi-

court dismissed nent, i.e., before the warrant execution premature1 granted the writ on other Collins, issued the state. See Herrera grounds. We reversed the district сourt’s 506 U.S. explained that instruction “[o]ur decision but (1993) (“[T]he sanity L.Ed.2d 203 of issue is denying petition is not judgment to enter properly proximity to considered the exe- any litigation later of [the to affect intended cution.”). competency question.” Mar executed] to be Lewis, tinez-Villareal When Martinez-Villareal first raised his (9th Cir.1996). n. 1 court, competency claim federal the State yet of Arizona had not a warrant issued of On remand Thus, although disposed execution. of reopen moved first Villareal the court every other claim raised Martinez-Villare- proceeding. petition, in his al first habeas we declined to newly enacted AEDPA would feared that competency his claim it address because was competency foreclose review of his claim on a Martinez-Villareal, premature. See petition despite parties’ second at 1309 n. 1. intention to address the claim once a Even if the State its had issued war execution March warrant of had issued. On prior of rant execution to our considеration 24, 1997, the district motion court denied the petition, of Martinez-Villareal’s first habeas it reassured Martinez-Villareal ‍‌​‌‌‌‌‌​‌‌​​‌‌​‌​​​​​​‌‌‌‌​‌‌‌​‌‌​​‌‌​​‌‌‌​​​​​​‍that had claim still would have been of treating ‘incompetency “no intention — Thomas, premature. In Lonchar v. be claim petition.” executed’ as a successive -,-, 1293, 1297, 134 L.Ed.2d assurance, despite May On this (1996), instructed court recognized that “as a result “if the district court cannot dismiss the AEDPA, jurisdiction it does have petition on [first habeas] the merits before competen- to entertain” Martinez-Villarеal’s execution, obligated the scheduled it is cy claim. The district court noted that “the stay address the merits and must issue a effectively AEDPA deprives all federal dis- prevent becoming the case from moot.” jurisdiction trict courts of issued, entertain second Once this been has the execution petitions raising Eighth ‘compe- imminent, Amendment is not and the claim tency May 19, premature. compe- to be executed’ claims.” becomes a Accordingly, On stayed tency claim execu- cannot be in a asserted tion to consider whether this is indeed the so, and, case if it a whether constitutes sus- AEDPA, Under the a claim such can

pension corpus. the writ of habeas be a asserted in second either.

Section 2244 of the AEDPA divides world of second or successive into two II. categories: Those raise claims that were Wainwright Eighth Ford v. holds that the presented previous petition, in a and those “prohibits carrying Amendment a state from that raise presented claims that were not in a upon prisoner out a sentence of a death who petition. A previous present claim was 409-10, is insane.” 477 U.S. at at prior petition in a ed must be dismissed. 28 However, 2244(b)(1). wheth- applies determination of U.S.C. This sanction er competent an inmate is be executed raised suggested period It the State was of Arizona that had nent within a reasonable time.... to the district court that Martinez-Villareal’s doTo now determination ripe adjudication. futile, claim was not for certainly it be because will have to he pressed importancе having The State repeated finally the time when for execution adjudication arrives. single competency, at time Reply Response State of when all Arizona’s to Motion Martinez-Villareal’s] other claims [of Summary Judgment, have been resolved issued, a warrant been Dec. 45-46 added). (emphasis actually so that an execution immi- adjudi- III. though that claim can never premature. cated will because pre asked to decide are whether petitioner reserve his Accordingly, must constitutеs an dicament unconstitutional sus present claim and it as colorable pension corpus. of the writ of habeas petition. But a a new claim Suspension provides “[t]he Clause Privi presented prior that was not lege Corpus of the Writ of Habeas shall not unless must be dismissed suspended, unless when in Cases of Re (A) claim re- applicant shows that the law, public Safety may bellion or Invasion the lies a new rule on Const., I, require to cases collateral re- made retroactive it.” U.S. Art. cl. 2.2 Court, pre- was view Martinez-Villareal has demonstrated that a unavailable; or viously be hear district court will never able to (B) (i) predicate the claim the factual (or anybody’s) competency to be executed previously have discovered could not been claim. Whether this to an unconsti amounts diligence; the of due and through exercise suspension depends upon of the writ tutional (ii) claim, if underlying facts the any whether federal court is authorized to proven in light and viewed evi- entertain Martinez-Villarеal’s whole, a sufficient to dence convincing by evi- establish clear already We noted new have how the stat that, error, but for constitutional dence precludes ute court from federal district factfinder would have no reasonable guilty applicant hearing under- a colorable claim on ei found Thus, lying offense. petition. ther first or second wheth suspended depends er the writ been 2244(b)(2). § 28 U.S.C. upon Supreme may whether or not the Court (A) in gateway The described subsection claim in the entertain colorable competency claim apply to a be jurisdiction of its hear original exercise right upon which cause the constitutional applications.3 habeas in is was announced such a claim based (B) gateway The described subsection does specifically not an- question This was apply because Felker, Felker. In swered in the Court con- or guilt issue of innocence. See not an system of “gatekeeping” that the cluded 1268, Stewart, v. 1277 Greenawalt 2244(b)(3), Act, § new codified at 28 U.S.C. (9th Cir.) (“[T]he new 28 U.S.C. permis- whereby petitioner must obtain the 2244(b)(2)(B) successive-peti all forecloses appeals filing sion before of the court unrelated tion review constitutional claims petition in the or successive — denied, innocence.”), guilt or cert. U.S. our apply consideration of “does (1997). -, 794, 735 117 136 L.Ed.2d S.Ct. applies applica- habeas because appears It the automatic ac thus that ” tions court.’ Felker v. ‘filed the district habeas and the companying -U.S.-,-, Turpin, inapplicable gateways provided by the AED- (1996). But the 135 L.Ed.2d 827 any PA of a foreclose federal review death it was question did of whether row inmate’s be executed. not decide correctly Certiorari review does not constitutional attack. 2. The State observes writ quite adequate different known to the Framers "was from an form collat- amount to alternative - today.” Turpin, relief, exists that which Felker Pressley, see 430 U.S. eral Swain -, -, S.Ct. U.S. 116 135 1224, 1229-30, L.Ed.2d 411 (1996). Supreme But like the L.Ed.2d Court, (1977), review because it is not collateral at all. Suspension we assume "the Clause of directly recognize We this conclusion con- as it refers writ exists Constitution decision In re tradicts the Eleventh Circuit’s Medina, today, it existed in 1789.” Id. at rather than as (11th Cir.1997) -, S.Ct. at 2340. ("review competency claim] could be [of through sought certiorari review of state by reject suggestion that direct review 3. We competency proceedings”). competen- Court of the against cy proceedings to sustain suffices by corpus practice by imposed the restrictions called ‘abuse bound ” — 2244(b)(1) (2)-the Felker, at-, §§ subsections writ.’ 116 S.Ct. at specifically foreclose consideration of peti But the restrictions successive competency claim. tinez-Villareal’s containing tions a colorable justified judicata as a cannot be modified res did, however, us with provide The Court judicata rule because res cannot to a signposts suggesting response its future premature that will on a First, question. Court noted or not we are bound these “[w]hether 2244(b)(1) (2)], they §§ [of restrictions then, left, strong are with We indications original certainly inform our consideration of circumstances, that under narrow these petitions.” Id. poses a new statute serious constitutional problem.5 Second, concluding the Court’s reason for 2244(b)(3) § strongly that it is not bound IV. 2244(b)(1) by §§

suggests that it is bound 2244(b)(3) Section discusses not decide con need this difficult that are ‍‌​‌‌‌‌‌​‌‌​​‌‌​‌​​​​​​‌‌‌‌​‌‌‌​‌‌​​‌‌​​‌‌‌​​​​​​‍“in the court.” tions filed question stitutional because we conclude that Congress Court inferred that competency claim Martinez-Villareal’s does therefore did not intend for that subsection fall § within the rubric of 2244. See petitions Supreme to aрply to filed in the Corp. DeBartolo Florida Coast Gulf 2244(b)(1) 2244(b)(3), § §§ Court. Unlike Council, 575, 568, Trades 485 U.S. 108 S.Ct. (2) limiting language and do not contain and 1392, (1988) 1397-98, 99 L.Ed.2d 645 generally refer to all second or successive (“Where acceptable an otherwise construc 2244(b)(3) apply §If petitions. to tion a statute raise would serious constitu Supreme expressly it Court because is problems, tional the Court will construe the petitions in the limited to filed problems statute avoid such unless such 2244(b)(1) (2) §§ apply then and should plainly contrary construction is to the intеnt Supreme they Court because are not Congress.”); Tashima v. Administrative similarly limited. Courts, 1264, 1268 the U.S. 967 F.2d Office (9th Cir.1992). together, signposts suggest Taken these that Court is bound Turner, In In re we that concluded “sec- imposed by new limitations on habeas review tion 2244 does not or subse- 2244(b)(1) (2).4 correct, § and If we are then quent petitions peti- first where the prisoner’s competency a state claim can nev prejudice tion was without dismissed by any er be heard federal court. failure exhaust state remedies.” F.3d (9th Cir.1996). pre- problem The constitutiоnal with this The Second Cir- Indeed, patent. is clusion cuit arrived at the same conclusion Ca- Irvin, (2d Cir.1996). upheld pro- AEDPA’s gatekeeping marano v. 98 F.3d 44 against Suspension visions attack under ques- The Camarano court confronted provisions petition qualifies Clause such because were a “mod- tion “whether a habeas judicata rule, a application ified res restraint on what is as a ‘second or successive’ within recognize rejected petitioner’s 4. We the Eleventh Circuit court has wait claim that bеlieve, opposite reached We howev- § result. successive-petition 2244 "forecloses all review er, upon misreading In re Medina is based guilt of constitutional claims unrelated or in- provi- of Felker. Medina's conclusion that "the 1277; Medina, at nocence.” see also amended, 2244(b), § sions of as do not restrict (stating "plain F.3d at that the terms” Supreme] original [the Court's habeas authori- 2244(b)(2)(B) §of make it clear "it has no ty,” ignores F.3d both the Court's application that relate sen- statement is at least "informed" tence”). However, sentencing Greenawalt's 2244(b)(1) (2), §§ as well as literal dis- type claim was the of claim that could raised 2244(b)(3) 2244(b)(1) § §§ tinction between petition. addressed a first we As have explained, will never be addressed on merits in a its 5. Greenawalt did not resolve the constitutional first question with which we are faced. Greena- The § it is af- We are faced with a different situation. where filed meaning prior petition require without Rose dismissed did not the dismissal of ter to exhaust state reme- prejudice entirety for failurе first in its tinez-Villareal’s Camarano, 98 F.3d at 46. court dies.” because we that his determined application that “because concluded premature, claim was rather than unexhaust- deny gatekeeping provisions [of 2244] ed. Unlike the cases Turner and Camar- as this eases such resubmitted ano, situation in we now address a which effectively preclude any federal habe- there has been federal decision on all but prejudice as review .... a dismissal without one of Martinez-Villareal’s subsequent preclusive сan have no effect on claims. 46-47; Christy v. petitions.” Id. at see also conclude, however, that the rationale (3d Cir.1997). Horn, underlying equal Turner with applies force upon are founded Turner and Camarano to Martinez-Villareal’s prison- principles. a state exhaustion Where petitions containing Just as must dismiss remedies, to exhaust state er has failed claims, unexhausted must a com- dismiss may grant federal habeas court petency claim raised in a first be- 2254(b)(1). This rule tion. 28 U.S.C. ob- premature. cause it will Just appliсation con- tains even where to permit we dismiss unexhausted claims both exhausted and unexhausted tains pass judgment on those courts Lundy, 455 U.S. claims. See Rose claims, so we dismiss 1198, 1205, 71 L.Ed.2d 379 may oppor- have the the state (1982) (“A court must dismiss habeas tunity once a to consider that claim warrant ‍‌​‌‌‌‌‌​‌‌​​‌‌​‌​​​​​​‌‌‌‌​‌‌‌​‌‌​​‌‌​​‌‌‌​​​​​​‍containing both unexhausted and just And as we of execution issued. claims.”). applies, Rose exhausted Where permit petition to be in an exhausted heard court petitioner must return to state and even it had federal court after been dis- pre- before litigate the unexhausted claims unexhausted, missed so too previously as petition a senting claims in new habeas those permit competency a ripe should we claim the court. federal be heard in federal court even after had “protect Rose the state role aims previously premature. as been dismissed and pre in the enforcement of federal law Turner this that a reached result ensure judicial disruption proceedings.” state vent of pеtitioner’s are one federal claims accorded Rose, 518, 102 at 1203. But in We now extend hearing federal court. petitioner’s that a Rose also ensures federal previously competency Turner claims that exhausted, claims, subject will be once prema- prejudice were without as dismissed petition by a demanding federal review that are ture to ensure that such claims order containing and unexhausted both exhausted subject to review. likewise federal entirety.6 in its claims be dismissed justified by that result is bеlieve this Turner sustained via- and Camarano path procedural the fact that normal by bility ensuring of scheme that once all this protected by by Rose Tur- contemplated properly claims had been exhausted a permit ner court to consid- does not federal courts, prisoner still state the state would petitioner’s claim. Let us competency er a federal able raise his federal suppose result, that had dismissed accomplish forum. To this both petition entirety pursu- in its Villareal’s first new courts held that the statute’s reference suppose us ant Rose. Let also petition” to “second or successive execution, a then issued warrant origi- after State encompass petitions that are filed enabling to ex- thereby Martinez-Villareal applications were in their en- nal dismissed competency in state court. tirety haust his claim for failure to exhaust state remedies. remaining been permitted a claims once those claims had 6. The Court could have federal Rose only petitioner’s a second in state court and raised in court to dismiss unexhausted exhausted by petition. The Rose Court avoided this result entertain exhausted ones on the claims and petition requiring prob- dismissal a mixed its the abuse of the writ doctrine merits. But entirety. ably precluded federal review of the would have suppose upon exhaustion is sent Finally, let us ture back to the claim, brought state, this and a new warrant of execution has petition least, to the federal say “pro consolidatеd habeas To this issued. neither containing all of his constitutional courts the state court’s role tect[s] enforce including claim. complaints, law,” “prevent[s] of federal disrup ment nor Rose, judicial proceedings.” tion of state of Rose the hold- Under the rationale 518, 102 U.S. at S.Ct. at 1203. Turner, appli- ing of would construe cation if Martinez-Villareal’s first as it were We believe that our extension of Turner to We would therefore be re- originally claim that was dis quired stay to issue of execution so premature рrejudice missed without as (for federal entertain the first court could probable problem both a avoids time) claims. The federal his constitutional judicial disrespect and unwarranted of state execution, course, stay render his proceedings. holding, compe Under our premature, once-ripe competency claim tency claim must in a first be raised though been in the state it has exhausted petition, whereupon must be it also dismissed Thus, may petition court. while this premature due to the automatic Turner, competen- heard under Rose petition issues when first is filed. Once the cy claim cannot addressed until issues a state second warrant execution issues, warrant of execution and the state court the now-ripe considers again petitioner once determines that the claim, court may a federal hear competent, reappears the claim before a that claim-and that claim-because it was course, point federal court. Of at this originally premature dismissed as and there precluded reviewing federal court is from fore falls outside of the rubric of “second or if it is “second or deemed a petitions.7 successive” 2244(b). petition by § successive” barred holding is a one that Our narrow is inher- indicates, analysis appli- As foregoing ently limited unique nature of a com- petition cation to a of Rose that includes a petency Indeed, we can think of no any oppor- claim does not afford other situation a first where meets Moreover, tunity fоr review. to dis- federal requirement Rose’s exhaustion but a claim miss an entire first of an the basis raised must be tabled as ultimately unexhausted claim premature. We Turner to this extend cir- purposes will violate of the animating one cumstance, only. and this circumstance jurispru- behind Rose modern habeas Rose, dence. Under the state court must V. opportunity have the to consider But tinez-Villarears claim. Martinez-Villareal’s claim is judgment subject state always will be dis- to imposed by not the restrictions 2244(b). petition Thеrefore, § carded as once moot the exhausted we dismiss as unnec- mandatory essary reaches the federal court and the Martinez-Villareal’s motion for autho- result, petition issues. As the state will to file a for writ rization of habeas required begin again compe- in corpus to with the the district court. We transfer the tency petition presented Judge claim petition once exhausted to D.W. Nelson on (Docket court, 30, adjudicated by prema- 97-80249), May the federal 1997 No. Indeed, question pеtitioner’s whether the successive ... claims concern the immediate state, petition Supreme and abuse of the writ doctrines mental neither court nor the this definitively claims. the Seventh has As decided whether relief noted, 2244(b) uses, recently appropriately Circuit "[s]ection on be denied either abuse of define, phrase but petition grounds.”); or suc- 'second the writ or successive Bar- ” Collins, 871, corpus (5th application.' Cir.1994) cessive habeas Benton v. nard v. 878 162, (7th Cir.1996). ("[0]ur Washington, reported F.3d 106 163 research no indicates decision exceptional procedural Due posture, to its a federal which circuit court or the raising only might tion petitioner’s compe- Court has denied relief of Scott, by phrase. lency-to-be-executed grounds be covered See Fearance v. on of abuse 633, (5th Cir.1995) ("Because writ.”). Ford pered comply procedural pursuant to 28 U.S.C. efforts with Carrier, 2241(b).8 (citing Murray § rule. Id. U.S. 488, 106 91 L.Ed.2d 397 NELSON, specially Judge, Circuit T.G. (1986)). ripeness The lack of of a claim of concurring: appear to incompetence to be executed would impediment case of an be a classic external view, unconstitutionally the 1996Act my In presentation corpus as the writ suspends It does claims. competency to executed 23, 1996, Thus, involving April a claim fashion, by prohibiting unambiguous so in an competency to could be lack of be executed or suc- of claims the consideration petition in a filed in considered successive excep- that do fit the cessive since, April court. On federal 2244(b)(1) (2). As we §in found tions the clear terms of such claims under order, point in the out by any simply cannot be federal considered to be claim cannot court, no spite of the fact that there was statutory exceptions. come within opportunity to If the writ earlier do so. Turner, prior through” In “looked claims, suspended to those it is not been without ac petition that had been dismissed suspended to see how it difficult can ever prac had no tion. the earlier Since any class of as to claims. effect, appropriate legal was tical or sus- My conclusion writ has been contrast, By simply ignore it. pended as to claims such as Martinez-Villa- subject opinion prior our which was the require analysis ap- real’s would an try third perhaps Martinez-Villarears was remedy to propriate ensure that extensive into federal and was getting get court. could to federal Villareal point of ly parties, to the litigated order, the to the remedy we transfer certiorari Court. denial of here, appro- is an court of the filed — (9th denied, Cir.), cert. F.3d one, I in the priate fully concur result. -, L.Ed.2d justifies our Thus, Turner I don’t believe in the years litigation

ignoring several courts.

federal prior gave Act as it existed

The law opportunity present all prisoners the LIMITED, re Debtor. In FIGTER They court. their federal federal opportunity they neglected if could lose LIMITED, Appellant, FIGTER Howev- include a claim 2244(b) er, allowed the consideration “old” containing “new of successive AND TEACHERS INSURANCE justice” grounds,” if the “ends of ANNUITY OF ASSOCIATION opportunity This was ehminated served. AMERICA, Appellee. §to amendments 2244. the 1996 No. 96-55356. prior opinion, noted in our As we Appeals, States United court with could come federal tioner ‍‌​‌‌‌‌‌​‌‌​​‌‌​‌​​​​​​‌‌‌‌​‌‌‌​‌‌​​‌‌​​‌‌‌​​​​​​‍Ninth Circuit. “procedurally petition- if the defaulted claim procedural er cause default can show 6, 1997. Argued and Submitted June alleged prejudice as a and actual result Decided June 1997. of federal law.” 80 F.3d at violations required petitioner A cause showing of objective the existence of an

demonstrate which ham- external defense

factor Henceforth, previously prisoner where had executed claim such claim a state in Martinez-Villa- is, premature-may such file to file a been dismissed situation-that one who seeks real's petition directly with the district court. to be that contains

Case Details

Case Name: Ramon MARTINEZ-VILLAREAL, Petitioner, v. Terry STEWART, Respondent; Ramon MARTINEZ-VILLAREAL, Petitioner, v. Terry STEWART, Respondent

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jun 23, 1997

Citation: 118 F.3d 628

Docket Number: 97-80229, 97-80249

Court Abbreviation: 9th Cir.