_________________________________________________________________ IN THE SUPREME COURT OF THE UNITED STATES
IN RE JUAN RAUL GARZA,
ON APPLICATION FOR A STAY OF EXECUTION
ON PETITION FOR AN ORIGINAL WRIT OF HABEAS CORPUS
BRIEF FOR THE UNITED STATES IN OPPOSITION
THEODORE B. OLSON
Counsel of Record
Assistant Attorney General
ROBERT J. ERICKSON
MARGARET P. GRIFFEY
GWYNN X KINSEY, JR.
Department of Justice
Washington, D.C. 20530-0001
1. Whether petitioner has satisfied the requirements for a stay of execution, as described in Barefoot v. Estelle, 463 U.S. 880 (1983).
2. Whether petitioner's claim under Simmons v. South Carolina, 512 U.S. 154 (1994), and Shafer v. South Carolina, 121 S. Ct. 1263 (2001), satisfies the requirements for review of second or successive motions for collateral review under 28 U.S.C. 2255, which requirements inform this Court's consideration of an original habeas petition.
3. Whether Section 2255 is inadequate or ineffective to test the legality of petitioner's detention under Simmons and Shafer.
4. Whether denial of relief on petitioner's claim under Simmons and Shafer would constitute an unconstitutional suspension of the writ of habeas corpus.
(I)IN THE SUPREME COURT OF THE UNITED STATES
IN RE JUAN RAUL GARZA,
ON APPLICATION FOR A STAY OF EXECUTION
ON PETITION FOR AN ORIGINAL WRIT OF HABEAS CORPUS
BRIEF IN OPPOSITION TO
THE APPLICATION FOR STAY OF EXECUTION AND
THE PETITION FOR WRIT OF HABEAS CORPUS
The opinion of the court of appeals affirming petitioner's convictions and death sentences on direct appeal is reported at 63 F.3d 1342. The opinion of the court of appeals affirming the denial of petitioner's motion under 28 U.S.C. 2255 to vacate his sentence is reported at 165 F.3d 312. The opinion of the court of appeals denying petitioner's motion for leave to file a second Section 2255 motion (Pet. App. 1-3) is not yet reported.JURISDICTION
Petitioner has invoked this Court's original habeas corpus jurisdiction under 28 U.S.C. 2241(a) and 2241(c)(3). Pet. 1.STATEMENT
After a jury trial in the United States District Court for the Southern District of Texas, petitioner was convicted of numerous offenses, including engaging in a continuing criminal enterprise, in violation of 21 U.S.C. 848(a) & (c), and committing three murders while engaged in and in furtherance of a continuing criminal enterprise, in violation of 21 U.S.C. 848(e). He was sentenced to death for each of the murders. (1) The court of appeals affirmed petitioner's convictions and sentence. United States v. Flores, 63 F.3d 1342 (5th Cir. 1995). This Court denied his petition for a writ of certiorari, 519 U.S. 825 (1996), and his petition for rehearing, 519 U.S. 1022 (1996).
Following direct review, petitioner filed a motion to vacate his sentence under 28 U.S.C. 2255. The district court denied the motion and declined to issue a certificate of appealability. Petitioner then applied to the court of appeals for a certificate of appealability under 28 U.S.C. 2253(c)(1)(B). The court of appeals denied the application. United States v. Garza, 165 F.3d 312 (5th Cir. 1999). This Court denied certiorari. 528 U.S. 1006 (1999).
Petitioner is scheduled to be executed on June 19, 2001. On May 4, 2001, petitioner filed in the court of appeals a motion for a stay of execution and for leave to file a second or successive Section 2255 motion to vacate his sentence. (2) On May 30, 2001, the court of appeals denied petitioner's request for a stay and leave to file a second or successive Section 2255 motion. Pet. App. 1-3. On June 7, 2001, petitioner filed in this Court the instant application for a stay of execution and original petition for a writ of habeas corpus.1. The evidence at trial is summarized in the opinion of the court of appeals on direct appeal. 63 F.3d at 1351-1352. From the early 1980s until 1992, petitioner controlled an extensive marijuana trafficking organization headquartered in Brownsville, Texas. During that period, he and his subordinates imported thousands of pounds of marijuana from Mexico, packaged the marijuana at various stash houses located in the Brownsville and Corpus Christi areas, and then resold the marijuana to wholesale distributors in Texas, Louisiana, and Michigan. Id. at 1351. Law enforcement officers occasionally seized marijuana loads, currency shipments, or both, belonging to petitioner. Petitioner suspected that those seizures were linked to informants within his drug-trafficking organization. In retaliation, petitioner murdered or caused the murder of Gilberto Matos, Erasmo De La Fuente, and Thomas Rumbo. 63 F.3d at 1351-1352. In 1990, petitioner commissioned several of his workers to murder De La Fuente. After the team made repeated unsuccessful attempts to kill De La Fuente, petitioner ordered Israel and Manuel Flores to break into Matos's auto repair shop and lie in wait for De La Fuente. In the event only Matos, rather than De La Fuente, appeared, petitioner ordered Israel and Manuel Flores to kill Matos as a warning. On the morning of April 3, 1990, Israel and Manuel Flores broke into Matos's shop, and, when De La Fuente did not arrive after 45 minutes, they killed Matos by shooting him in the back of the head. Petitioner paid Israel and Manuel Flores for the murder with cash and a car. 63 F.3d at 1351; Gov't C.A. Br. 15-16. (3) Petitioner did not abandon his plan to kill De La Fuente. On the evening of September 8, 1990, petitioner provided Israel and Jesus Flores with guns and drove them to a nightclub of which De La Fuente was part owner. Jesus Flores subsequently left to pick up Manuel Flores. When they returned, Manuel Flores approached De La Fuente's car and killed him by shooting him twice at close range. Petitioner paid Jesus and Manuel Flores $10,000 each for killing De La Fuente. 63 F.3d at 1351-1352; Gov't C.A. Br. 16. Early in 1991, petitioner, who believed that Rumbo had turned over to police officers a 360-pound shipment of marijuana, drove with two associates to Rumbo's house to confront him. Rumbo denied any involvement in the loss of the marijuana and reluctantly agreed to accompany petitioner and the others in their vehicle. Eventually, the group (having been joined by Jesus Flores) arrived at a rural farm road, where petitioner told Rumbo he knew that Rumbo had taken the marijuana, ordered Rumbo from the car, and shot him in the back of the head as he walked away. Petitioner and Flores then dragged Rumbo's body into the brush, where petitioner fired four more bullets into Rumbo's head. Petitioner paid Flores $500 for his role in Rumbo's murder. 63 F.3d at 1352; Gov't C.A. Br. 20. 2. Under 21 U.S.C. 848(k), the jury must find the existence of at least two statutory aggravating factors before it is authorized to sentence to death a defendant found guilty of committing murder in furtherance of a continuing criminal enterprise, in violation of 21 U.S.C. 848(e). First, the jury must find the existence of at least one of four "intent" factors enumerated in Section 848(n)(1) to ensure that the defendant acted with a degree of culpability sufficient to make imposition of the death penalty a constitutionally proportionate punishment. See Tison v. Arizona, 481 U.S. 137 (1987). In addition, the jury must find the existence of at least one of the aggravating factors enumerated in Section 848(n)(2)-(n)(12). See 21 U.S.C. 848(k). If the jury finds the existence of one of the aggravating factors set forth in paragraph one of subsection (n) and one of the aggravating factors set forth in paragraphs two through 12 of subsection (n), then the jury may consider any non-statutory aggravating factors for which notice has been given, and it may weigh all aggravating factors it has found against any mitigating factors that any individual juror finds to exist. See 21 U.S.C. 848(k). Although the jury "is never required to impose a death sentence," it may do so if it unanimously concludes that "the aggravating factors found to exist sufficiently outweigh any mitigating factor or factors found to exist, or in the absence of mitigating factors, [that] the aggravating factors are themselves sufficient to justify a sentence of death." Ibid. 3. At the conclusion of the bifurcated penalty hearing at petitioner's capital trial, the district court submitted to the jury each of the four Section 848(n)(1) "intent" factors with respect to each of the three murders for which petitioner was convicted. As to the De La Fuente and Rumbo murders, the jury found unanimously and beyond a reasonable doubt that petitioner intentionally killed both victims (Section 848(n)(1)(A)), and that he intentionally engaged in conduct intending that both of the victims be killed or that lethal force be employed against each of the victims resulting in their deaths (Section 848(n)(1)(C)). As to the Matos murder, the jury found unanimously and beyond a reasonable doubt that petitioner intentionally engaged in conduct intending that Matos be killed or that lethal force be employed against him resulting in his death (ibid.). 63 F.3d at 1366.
Having found the requisite aggravating intent for all three murders, the jury next found unanimously and beyond a reasonable doubt, from the second category of required statutory aggravating factors, that petitioner committed each of the three murders after substantial planning and premeditation (Section 848(n)(8)) and that he procured De La Fuente's and Matos's murders by payment of something of pecuniary value (Section 848(n)(6)). 63 F.3d at 1367.
Finally, the jury found unanimously and beyond a reasonable doubt the following non-statutory aggravating factors: that petitioner was responsible for five unadjudicated murders; (4) that petitioner committed four of those unadjudicated murders after substantial planning and premeditation; that petitioner intentionally committed two of the unadjudicated murders in furtherance of his continuing criminal enterprise; and that petitioner represented a continuing danger to others based on his pattern of violent and brutal conduct. 63 F.3d at 1367.At least one juror found each of the following statutory mitigating factors by a preponderance of the evidence: that petitioner was under unusual and substantial duress at the time of the killings; that he was youthful; that other defendants who were equally culpable would not be punished by death; and that each of the victims consented to the criminal conduct that ultimately resulted in his death. See 21 U.S.C. 848(m)(2), (5), (8) & (9). At least one juror also found the existence of one non-statutory mitigating factor. 63 F.3d at 1367. The jury unanimously concluded that the aggravating factors sufficiently outweighed the mitigating factors and recommended that petitioner be sentenced to death for each of the three murders. Ibid. As required by the statute, the district court then sentenced petitioner to death. See 21 U.S.C. 848(l). 4. On direct appeal, petitioner raised numerous issues, including a claim that, under Simmons v. South Carolina, 512 U.S. 154 (1994), petitioner's due process rights were violated by the district court's failure to instruct the jury that the only alternative to a death sentence was life imprisonment without the possibility of parole. The court of appeals rejected that claim. 63 F.3d at 1367-1369. The court explained that, unlike the statutory scheme in Simmons, which precluded imposition of any non-capital sentence other than life without the possibility of parole, Section 848(e) authorizes the trial judge to impose "any term" from 20 years of imprisonment to life imprisonment if the jury recommends against the death penalty. Id. at 1367. The court of appeals further noted that the Sentencing Guidelines permit downward departures, even for those defendants convicted of first-degree murder. Id. at 1367-1368. The court of appeals accordingly held that "the jury was given accurate information about the legally available non-death sentences" (id. at 1369; emphasis in original)) when it "was informed that life without parole was a possible sentence, but not the only other sentence that could be imposed" (id. at 1367). Finally, the court of appeals held that the instant federal capital statutory scheme accords the trial judge sole responsibility for selecting the non-capital sentence that will be imposed and "does not allow the jury to make a binding recommendation on any sentence other than death." Id. at 1369. Additionally, the court of appeals rejected the claim that the government had wrongly exploited the issue of future dangerousness in its remarks to the jury, even though the government was aware that a sentence of less than life without possibility of parole was unlikely. Id. at 1368-1369. The court of appeals explained that "the record clearly shows that the government primarily focused on the danger [petitioner] would pose while still in prison." Id. at 1368. In his petition for a writ of certiorari on direct review, petitioner sought this Court's review of the rejection of his Simmons claim by the court of appeals. The Court denied certiorari. 519 U.S. 825, reh'g denied, 519 U.S. 1022 (1996). 5. Petitioner next filed a motion to vacate his sentence under 28 U.S.C. 2255. He did not renew his Simmons claim in that filing. He instead claimed that he was denied due process by the introduction at the penalty phase of evidence on the previously unadjudicated murders that were alleged as non-statutory aggravating factors; that he was denied meaningful appellate review by the failure of the court of appeals on direct appeal to address the introduction of the other murders; and that trial counsel was constitutionally ineffective. The district court denied the motion for collateral relief and later rejected petitioner's request for a certificate of appealability under 28 U.S.C. 2253(c)(1)(B). Petitioner then sought a certificate of appealability from the court of appeals. The court denied the request because it concluded that petitioner had not made a substantial showing of the denial of a constitutional right, as required by 28 U.S.C. 2253(c)(2). 165 F.3d at 314-315. This Court denied certiorari. 528 U.S. 1006. 6. On May 7, 2001, petitioner filed a motion in the court of appeals for leave to file a second Section 2255 motion. He argued that this Court's decision in Shafer v. South Carolina, 121 S. Ct. 1263 (2001), created a retroactively-applicable rule of constitutional law that entitles him to collateral relief on a second Section 2255 motion in accordance with the gatekeeping provisions of Section 2255, ¶8. The court of appeals rejected that claim because it did not meet the gatekeeping requirements. Pet. App. 1-3. The court explained that Shafer did not create a "new" constitutional rule. Id. at 3. The court further stated that Shafer did not apply any such rule on collateral review or declare that any such rule was retroactively applicable. Ibid. Finally, the court noted that petitioner's claim was not "previously unavailable" but had been litigated on direct review. Ibid.
ARGUMENT Petitioner seeks a stay of execution pending the Court's resolution of the original habeas petition that he has filed in this Court. His underlying claim in the original habeas petition (Pet. 9-17) is that his death sentence was imposed in violation of Simmons v. South Carolina, 512 U.S. 154 (1994), a claim that he litigated unsuccessfully in both the court of appeals and this Court on direct review. As we explain more fully below, petitioner has failed to make the extraordinary showing required for a stay of execution or for habeas relief. Because petitioner has previously exhausted a direct appeal and a first collateral review of his convictions and death sentences under Section 2255, a stay of his execution "should be granted only [if] there are 'substantial grounds upon which relief might be granted'" on his pending habeas petition. Delo v. Stokes, 495 U.S. 320, 321 (1990) (per curiam) (quoting Barefoot v. Estelle, 463 U.S. 880, 895 (1983)). (5) Relief on an original habeas petition filed in this Court is "rarely granted." Sup. Ct. R. 20.4(a). (6) It is available only if the petitioner shows "that exceptional circumstances warrant the exercise of the Court's discretionary powers, and that adequate relief cannot be obtained in any other form or from any other court." Ibid. Petitioner does not meet those standards. His Simmons claim--that his sentencing jury should have been instructed that the only alternative to a death sentence was life imprisonment without the possibility of release--was correctly rejected on direct review, and petitioner is procedurally barred from relitigating that claim now. Petitioner contends (Pet. 3, 7-16) that this Court's intervening decision in Shafer v. South Carolina, 121 S. Ct. 1263 (2001), demonstrates that the court of appeals erred in rejecting his Simmons claim. Shafer, however, does not assist petitioner's claim, which continues to lack merit because (unlike in Simmons and Shafer) life imprisonment would not have been the only legally available sentence if the jury had not sentenced petitioner to death. See Ramdass v. Angelone, 530 U.S. 156, 169 (2000). Moreover, Shafer was, as petitioner himself argues (Pet. 21-22, 24), "clearly dictated" and "compelled" by Simmons, and therefore does not add any legal principle that was unavailable to petitioner at the time he originally litigated his Simmons claim. For similar reasons, petitioner also errs in asserting (Pet. 17-26) that his claim satisfies the gatekeeping requirements in Section 2255, ¶8. Those provisions limit consideration of second or successive Section 2255 motions and, as petitioner acknowledges (Pet. 17), inform this Court's consideration of original habeas petitions. See Felker v. Turpin, 518 U.S. 651, 663 (1996). Because petitioner's Simmons claim was available and litigated on direct review, and Shafer is not a "new" rule of constitutional law, petitioner does not satisfy the gatekeeping requirements. Nor, contrary to his contention (Pet. 29-33), does his claim fall within Section 2255's savings clause, which permits a federal prisoner to seek habeas corpus relief under 28 U.S.C. 2241 if Section 2255 is "inadequate or ineffective to test the legality of his detention." Section 2255 is not "inadequate and ineffective" because it precludes relitigation of a claim that was previously correctly rejected. Finally, contrary to petitioner's contention (Pet. 33-39), precluding relitigation of petitioner's claim does not constitute an unconstitutional suspension of the writ of habeas corpus. 1. As we demonstrated in our brief in opposition to the petition for a writ of certiorari on direct review, (7) there is no merit to petitioner's claim (Pet. 9-17) that the trial court violated the rule in Simmons v. South Carolina, 512 U.S. 154 (1994), by failing to instruct the jury that life imprisonment without possibility of release was the only sentence available if the jury did not recommend a death sentence. As this Court has made clear, the rule in Simmons applies in only "a limited class of capital cases." O'Dell v. Netherland, 521 U.S. 151, 167 (1997). In particular, the Simmons rule does not apply unless the only legally available alternative to a sentence of death is life imprisonment without possibility of release. See Ramdass v. Angelone, 530 U.S. 156, 169 (2000). Petitioner's case is not within the limited class of cases to which Simmons properly applies because it was legally possible for him to receive a sentence of only 20 years of imprisonment, even after the jury found that he had committed intentional murder. a. In Simmons, the State argued that the defendant's future dangerousness was a factor for the jury to consider in deciding whether to sentence the defendant to death for the murder of an elderly woman. In rebuttal, the defendant argued that there was no reason to expect that he would commit future violent acts while imprisoned because he preyed only on elderly women (512 U.S. at 157-158 (plurality opinion)), an argument that could succeed only if the jury were convinced that the defendant would stay in prison (id. at 176 (O'Connor, J., concurring)). The trial court refused to instruct the jury that the only available alternative to death was life imprisonment without possibility of release, and the jury returned a death sentence. This Court reversed, holding that "where the defendant's future dangerousness is at issue, and state law prohibits the defendant's release on parole, due process requires that the sentencing jury be informed that the defendant is parole ineligible." Id. at 156 (plurality opinion); see also, id. at 176-178 (O'Connor, J.,concurring); O'Dell v. Netherland, 521 U.S. at 153 (Simmons "requires that a capital defendant be permitted to inform his sentencing jury that he is parole ineligible if the prosecution argues that he represents a future danger"). b. This Court most recently applied Simmons in Shafer v. South Carolina, 121 S. Ct. 1263 (2001). There, the relevant state capital sentencing statute, which had been revised after Simmons in an effort to avoid its consequences, required penalty-phase jurors to undertake two distinct inquiries before imposing a death sentence. First, the jurors had to determine whether a statutory aggravating circumstance existed. If the jurors failed unanimously to find a statutory aggravating circumstance, the trial judge (rather than the jury) would make the sentencing decision and could "sentence the defendant to either life imprisonment or a mandatory minimum term of imprisonment for thirty years." Id. at 1267. Second, if the jurors unanimously found a statutory aggravating circumstance, the jury had to recommend one of two sentences: death or life imprisonment without possibility of parole. Ibid. As this Court explained, "[n]o sentencing option other than death or life without parole [was] available to the jury." Ibid. In applying the revised statute at Shafer's capital trial, the trial judge refused to inform the jurors that prisoners sentenced to life imprisonment were ineligible for parole. 121 S. Ct. at 1269-1270. The jurors thereafter unanimously found the existence of a statutory aggravating circumstance and recommended that Shafer be sentenced to death. Id. at 1270. The South Carolina Supreme Court affirmed Shafer's death sentence. In particular, it held that this Court's decision in "Simmons requires that the trial judge instruct the jury the defendant is parole ineligible only if no other sentence than death, other than life without the possibility of parole, is legally available to the defendant." 121 S. Ct. at 1270. Because "three alternative sentences"--death, life without the possibility of parole, and a mandatory minimum term of 30 years of imprisonment--were available at the time Shafer's jury began its deliberations, the South Carolina Supreme Court concluded that "Simmons was inapplicable." Id. at 1271. This Court reversed, finding that South Carolina's revised capital sentencing statute implicated the rule in Simmons, just as its previous capital sentencing statute had. As this Court recognized, the reasoning of the South Carolina Supreme Court "might [have been] persuasive if the jury's sentencing discretion encompassed the three [sentencing] choices" identified by the state court, but, as this Court stated, "that is not how the State's new sentencing scheme works." 121 S. Ct. at 1272. As the Court explained, in the event that jurors fail to find the existence of a statutory aggravating factor, "Simmons has no relevance," because "[i]n such a case the judge alone becomes the sentencer." Ibid. Rather, the Court pointed out, it was only after the jurors passed the "factual threshold" of determining the existence of a statutory aggravating circumstance that jurors "exercise[d] discretion in determining the punishment that should be sought." Because there were only two available sentencing alternatives--death and life without possibility of parole--when the jurors made "the moral judgment whether to impose the death penalty," the Court found that "parole eligibility may be critical" and that the rule in Simmons accordingly "comes into play." Id. at 1273. In light of this, the Court held "that whenever future dangerousness is at issue in a capital sentencing proceeding under South Carolina's new scheme, due process requires that the jury be informed that a life sentence carries no possibility of parole." Ibid. c. Under the reasoning in Simmons and Shafer, in order to invoke Simmons, a capital defendant must show both that the government relied on his future dangerousness as a factor favoring imposition of the death penalty and that, under the applicable law, the only available alternative to a sentence of death is life without possibility of parole. See Ramdass v. Angelone, 530 U.S. 156, 169 (2000) (Simmons "applies only to instances where, as a legal matter, there is no legal possibility of parole if the jury decides the appropriate sentence is life imprisonment") (emphasis added). Petitioner cannot invoke Simmons because life without possibility of parole was not the only legally available alternative to a sentence of death. Unlike in Simmons and Shafer, where the State's statutory scheme explicitly provided both that capital defendants who did not receive a death sentence would be sentenced to a term of life imprisonment and that habitual offenders (like Simmons) would be ineligible for parole, no federal statute mandated a life sentence without parole for petitioner. To the contrary, under the sentencing scheme applicable to Title 21 capital offenses, juries only make binding recommendations regarding the sentence of death, and, in the absence of a death verdict, district courts are permitted to impose any "other sentence * * * authorized by law" within a range from 20 years of imprisonment to life without possibility of parole for violations of 21 U.S.C. 848(e). See 21 U.S.C. 848(e)(1)(B), 848(k), 848(l) & 848(p). (8) As petitioner correctly notes, the district court would apply the Sentencing Guidelines to arrive at an appropriate non-capital sentence within the statutorily prescribed sentencing range; and, under the Guidelines, the base offense level for someone convicted of murder under Section 848(e) is 43, which, in the absence of a downward departure, would result in a sentence of life imprisonment. U.S.S.G. § 2A1.1. Petitioner is incorrect (Pet. 10, 15-17), however, in arguing that the Sentencing Guidelines preclude downward departure in all cases of intentional murder. As the court of appeals explained when it rejected petitioner's Simmons claim on direct review, 63 F.3d at 1368, the Guidelines authorize courts to depart downward on certain specified grounds, see U.S.S.G. §§ 5K2.10-5K2.16, or for any "mitigating circumstance of a kind, or to a degree, not adequately taken into consideration" by the Sentencing Commission in formulating the Guidelines. See 18 U.S.C. 3553(b); U.S.S.G. § 5K2.0; Koon v. United States, 518 U.S. 81, 92-96 (1996). Contrary to petitioner's contention (Pet. 15-17), a court's authority to depart downward from a sentence of life imprisonment is not eliminated by virtue of the commentary accompanying U.S.S.G. § 2A1.1, which states that "in the absence of capital punishment[,] life imprisonment is the appropriate punishment for premeditated killing." Id., comment. (n.1). That note does not purport to foreclose a downward departure from life imprisonment on any ground that places a particular case outside the "heartland" of premeditated killings. Cf. Koon, 518 U.S. at 98-100. Nor does the note restrict departures to those situations in which the defendant did not act with the most culpable forms of intent. The note expressly recommends that the sentencing court consider departure in those circumstances, but it does address the entire universe of considerations that might support a departure. U.S.S.G. § 2A1.1, comment. (n.1). (9) "[B]ecause the Sentencing Guidelines vest the district court with discretion to adjust a life sentence downward, a life sentence was not the only legal sentence other than death that [petitioner] might receive." 63 F.3d at 1368. Accord United States v. Stitt, 2001 WL 565241 (4th Cir. May 25, 2001), at *7- *9. (10) Whatever the likelihood that the district court would have departed downward from life imprisonment, the essential point is that such a departure was not legally foreclosed. Indeed, in United States v. Villarreal, 963 F.2d 725, 727 (5th Cir.), cert. denied, 506 U.S. 927 (1992), after the jury declined to recommend the death penalty, the district court imposed only a 40-year term of imprisonment on one of the defendants for his violation of Section 848(e). Villarreal thus demonstrates that, unlike in Simmons, defendants convicted under Section 848(e) are not automatically subject to a term of life imprisonment without possibility of parole if the jury does not recommend a death sentence. In short, petitioner has not, as Simmons and Shafer mandate, "conclusively established his parole ineligibility under [federal] law at the time of his trial." Ramdass v. Angelone, 530 U.S. at 170. (11) 2. Although petitioner contends that, in the absence of habeas review by this Court, he will be without an opportunity to present "for the very first time" (Pet. 7) his claim that he is entitled to Simmons relief in light of this Court's recent decision in Shafer, petitioner concedes (Pet. 21-22, 24) that the holding in Shafer was "clearly dictated" and "compelled" by this Court's earlier decision in Simmons. Thus, petitioner effectively concedes what we have shown above--that his claim derives from Simmons itself, not from the application of that rule in Shafer. The rule in Simmons was fully available to petitioner on direct review. In fact, as we have explained, petitioner unsuccessfully litigated his Simmons claim--including his contention that, by operation of the Sentencing Guidelines, a sentence of life imprisonment without the possibility of parole represented the only available sentencing alternative to a sentence of death--in the court of appeals and in his petition for certiorari. Having already litigated the very same claim on direct review, petitioner should not be permitted to relitigate that claim on collateral review. See Withrow v. Williams, 507 U.S. 680, 720-721 (1993) (Scalia J. concurring) ("federal courts have uniformly held that, absent countervailing considerations, district courts may refuse to reach the merits of a constitutional claim previously raised and rejected on direct appeal"); Kaufman v. United States, 394 U.S. 217, 227 n.8 (1969) (suggesting that a Section 2255 court has discretion to refuse to reach the merits of a constitutional claim that has already been raised and resolved against the prisoner at trial and on direct review). 3. For essentially those reasons, petitioner's relitigation of his Simmons claim is, notwithstanding his contention to the contrary (Pet. 17-26), precluded by the gatekeeping provisions in Section 2255, ¶8. As this Court has explained, and petitioner concedes (Pet. 17), those provisions "inform [this Court's] consideration of original habeas petitions" and impose "conditions on [its] authority to grant relief." Felker, 518 U.S. at 658, 663. Petitioner contends that, because of Shafer, his Simmons claim satisfies ¶8(2) of Section 2255, which permits second or successive motions that rely on "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable." Petitioner is incorrect. As we have described, and as the court of appeals explained when it denied petitioner leave to file a second or successive motion, "the rule that [petitioner] seeks to apply was not 'previously unavailable.' [Petitioner] has already been afforded full review in his original direct appeal of the Simmons claims he seeks to present in this successive motion." Pet. App. 3. Petitioner cannot avoid that fact by relying on Shafer, because, as petitioner himself argues (Pet. 21-22, 24), Shafer was "clearly dictated" and "compelled" by Simmons. Therefore, as the court of appeals also explained, Shafer was not a "new" rule of constitutional law. (12) Pet. App. 3. See Caspari v. Bohlen, 510 U.S. 383, 390 (1984) ("[A] case announces a new rule if the result was not dictated by precedent." (quoting Teague v. Lane, 489 U.S. 288, 301 (plurality opinion))). (13) Petitioner invites (Pet. 18-21) this Court to interpret ¶8(2) to authorize a second or successive petition that raises any claim that is not barred by Teague's non-retroactivity rule, including all claims that rely on "old" rules. Petitioner's proposed interpretation cannot be squared with the language of ¶8(2), which unambiguously authorizes second or successive petitions only if they rely on new rules. Nor can it be squared with the purpose of the gatekeeping provisions, which was not to codify Teague but to codify a modified version of the "abuse of the writ" doctrine. See Felker, 518 U.S. at 664. In contrast to the abuse of the writ doctrine, which limited second or successive petitions and has been superseded by the gatekeeping provisions, Teague imposes a different, less restrictive limitation on all petitions for collateral review, and it "remains the law" even after enactment of the gatekeeping provisions. See Williams v. Taylor, 529 U.S. 379-380 (2000). Construing ¶8(2) as coextensive with Teague would permit review of second or successive petitions raising a broad class of claims that were previously foreclosed by abuse of the writ principles. That result would contravene Congress's purpose in enacting the gatekeeping requirements, which was "to curb the abuse of the statutory writ of habeas corpus." See H.R. Conf. Rep. No. 518, 104th Cong., 2d Sess. 111 (1996).. 4. Review of petitioner's Simmons/Shafer claim is also not justified under Section 2255's savings clause, which permits a federal prisoner to seek habeas corpus relief under Section 2241 if his remedy under Section 2255 is "inadequate or ineffective to test the legality of his detention." As we have explained, Section 2255 relief is not available to petitioner here because the identical claim was litigated and correctly resolved against him on direct review. That fact does not render Section 2255 "inadequate or ineffective." Section 2255 is not "inadequate or ineffective" simply because relief has already been denied under that provision, or because a prisoner is procedurally barred from pursuing Section 2255 relief, or because a prisoner has been denied permission to file a second or successive motion under Section 2255. See Charles v. Chandler, 180 F.3d 753, 756 (6th Cir. 1999) (per curiam) (collecting cases). As numerous courts have noted, such a result would "nullify" the limitations that Congress has placed on collateral review. See, e.g., In re Davenport, 147 F.3d 605, 608 (7th Cir. 1998); United States v. Barrett, 178 F.3d 34, 52-53 (1st Cir. 1999), cert. denied, 120 S. Ct. 1208 (2000). Recently, several courts have relied on the savings clause to permit review under Section 2241 in cases in which the gatekeeping provisions in Section 2255 barred prisoners from proving, based on this Court's decision in Bailey v. United States, 516 U.S. 137, 150 (1995), that they were actually innocent of violating 18 U.S.C. 924(c). See In re Jones, 226 F.3d 328, 333-334 (4th Cir. 2000); In re Davenport, 147 F.3d at 611-612; Triestman v. United States, 124 F.3d 361, 376-377 (2d Cir. 1997); In re Dorsainvil, 119 F.3d 245, 251 (3d Cir. 1997); see also Barrett, 178 F.3d at 52-53 ("We agree with the Davenport, Dorsainvil, and Triestman courts that habeas corpus relief under § 2241 remains available for federal prisoners in limited circumstances"); cf. In re Hanserd, 123 F.3d 922, 930 (6th Cir. 1997) (prisoner who is barred by gatekeeping requirements from challenging Section 924(c) conviction in motion under Section 2255 may raise Bailey claim under Section 2241). The cases that have permitted review of claims under Section 2241, however, have required that the petitioner advance a claim of innocence. See, e.g., Lorentsen v. Hood, 223 F.3d 950, 954 (9th Cir. 2000) (noting that other courts have held that "a federal prisoner who is 'actually innocent' of the crime of conviction * * * may resort to § 2241 if the possibility of relief under § 2255 is foreclosed"); Kinder v. Purdy, 222 F.3d 209, 213-214 (5th Cir. 2000) (in cases that have "been viewed as falling within the savings clause, * * * the petitioner could claim he was actually innocent of the crime of which he was convicted"); Charles, 180 F.3d at 757 ("No circuit court has to date permitted a post-AEDPA petitioner who was not effectively making a claim of 'actual innocence' to utilize § 2241 (via § 2255's 'savings clause') as a way of circumventing § 2255's restrictions on the filing of second or successive habeas petitions."). Petitioner's claim that the district court wrongly refused to instruct the jury at the penalty phase of his capital trial that he would be imprisoned for life without possibility of release is not a claim of innocence, and it is therefore not cognizable under Section 2241 by virtue of Section 2255's savings clause. Moreover, to the extent that this Court has recognized the concept of "innocence of the death penalty" (see Sawyer v. Whitley, 505 U.S. 333, 348 (1992)), the "innocent of the death penalty" inquiry extends only to the legal "requirements that must be satisfied to impose the death penalty, i.e., the elements of the capital crime and minimum required aggravating factors." Cade v. Haley, 222 F.3d 1298, 1308 (11th Cir. 2000). Petitioner's Simmons/Shafer claim does not challenge the existence of the elements of the capital crime or of a required aggravating factor; instead, he claims that the sentencing jury was deprived of information that was relevant to the non-statutory aggravating factor of future dangerousness, which the jury took into account only after it determined that petitioner was death-eligible. Accordingly, petitioner's claim, even if it were valid (which it is not), would not establish his "innocence" of the death sentences that were imposed upon him. Petitioner contends (Pet. 30-31) that there is a conflict among the courts of appeals concerning the applicability of the savings clause. Even if there were some tension among the courts of appeals on that issue, petitioner's case would not be an appropriate vehicle to resolve it. He is not entitled to invoke the savings clause even under those court decisions that he describes as more favorable to prisoner claims. As we have explained, petitioner had a "reasonable opportunity" to raise his claim before, he in fact raised the claim, and the applicable law has not "changed after his first 2255 motion." In re Davenport, 147 F.3d at 609. Moreover, as we explain below, petitioner's case is not one "in which the failure to allow for collateral review would raise serious constitutional questions." Triestman, 124 F.3d at 377. 5. Petitioner's final argument (Pet. 33-39) is that denial of relief on his Shafer claim would be an unconstitutional suspension of the writ of habeas corpus. As we have explained, however, petitioner's claim merely relitigates the question whether he was in fact eligible for a sentence of less than life in the event that the jury returned a non-death verdict. That issue, which turns on the proper construction of the Sentencing Guidelines, rather than any important principle of constitutional law, was correctly resolved against petitioner on direct appeal, and there has been no intervening change in the law. Repetitive claims of the type petitioner advances would have been barred even before enactment of the gatekeeping provisions, either under the principle that claims litigated on direct review cannot be relitigated on collateral review, see pp. 21-22, supra, or under abuse of the writ principles, see McCleskey v. Zant, 499 U.S. 467, 494-497 (1991) (claims omitted from prior petitions are barred unless the petitioner shows "cause and prejudice" or "actual innocence"--neither of which petitioner could show here). Thus, application of the "gatekeeping" provisions of Section 2255, ¶8(2), to foreclose petitioner's claim falls "well within the compass of [the] evolutionary process" of federal collateral review and does not amount to an unconstitutional suspension of the writ. Felker, 518 U.S. at 664. That is especially true because petitioner's claim is without merit.
CONCLUSIONThe application for a stay and the petition for an original writ of habeas corpus should be denied. Respectfully submitted. THEODORE B. OLSON
Counsel of Record
Assistant Attorney General
ROBERT J. ERICKSON
MARGARET P. GRIFFEY
GWYNN X KINSEY, JR.
1 Petitioner was also convicted of conspiring to import and to possess with intent to distribute more than 1000 kilograms of marijuana, in violation of 21 U.S.C. 841(a)(1), 841(b)(1)(A) (vii), 952(a)(2), 960(b)(1)(G), and 963; possession of marijuana with intent to distribute it, in violation of 21 U.S.C. 841(a)(1) and (b)(1)(B) or (C); and money laundering, in violation of 18 U.S.C. 1956(a)(1)(A). Petitioner does not challenge his convictions and sentences on those charges in this Court.
2 On April 24, 2001, in the United States District Court for the Southern District of Indiana (the district of petitioner's incarceration), petitioner filed a petition for writ of habeas corpus under 28 U.S.C. 2241 and a motion for stay of execution. Those filings raised a claim unrelated to his present petition for an original writ of habeas corpus. On May 30, 2001, the district court dismissed the habeas petition for lack of jurisdiction. Petitioner's appeal from that ruling is pending before the United States Court of Appeals for the Seventh Circuit. On June 6, 2001, in the United States Court of Appeals for the Fifth Circuit, petitioner sought a stay of execution and leave to file a second or successive Section 2255 motion raising the claim that he had raised unsuccessfully in his habeas petition in the Southern District of Indiana. On June 11, 2001, the Fifth Circuit denied both a stay and leave to file a second or successive motion.
3 The government's brief in the court of appeals on petitioner's direct appeal is cited as "Gov't C.A. Br." The government's brief in opposition to petitioner's application for a certificate of appealability from the denial of the initial section 2255 motion is cited as "Gov't C.O.A. Opp."
4 The murdered individuals were Oscar Cantu, Antonio Nieto, Diana Flores Villarreal, Bernabe Sosa (petitioner's son-in-law), and Fernando Escobar Garcia. Gov't C.A. Br. 4. As detailed in our brief in opposition to the petition for a writ of certiorari in petitioner's first motion under Section 2255, the government presented extensive evidence at the penalty phase of petitioner's capital trial to establish that petitioner participated in or ordered each of unadjudicated murders; petitioner's motives ranged from personal animosity to the belief that the victim had mishandled the proceeds of petitioner's drug trafficking enterprise. See Br. in Opp., No. 99-5377, at pp. 6-9, available at 1999 WL 987044.
5 Although Barefoot involved a stay application by a state prisoner, we agree with petitioner (Pet. 2) that the Barefoot standard also applies where, as here, a federal prisoner seeks a stay in a second collateral review proceeding. It is noteworthy that Congress, in the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214, adopted similar, if not identical standards, to govern when both federal and state prisoners are entitled to review of second or successive applications for collateral review. 28 U.S.C. 2244, 2255; Reyes-Requena v. United States, 243 F.3d 893, 897-899 (5th Cir. 2001).
6. This Court most recently granted an original petition for a writ of habeas corpus more than 75 years ago, in Ex parte Grossman, 267 U.S. 87 (1925). See Oaks, The "Original Writ of Habeas Corpus in the Supreme Court, 1962 Sup. Ct. Rev. 153, 153-154 & n. 3; Stern, Gressman, Shapiro & Geller, Supreme Court Practice, 502 (7th ed. 1993).
7 In conjunction with our submission of this brief, we are lodging with the Court and serving on petitioner a copy of our brief in opposition on direct review, Br. in Opp., No. 95-8346.
8 In contrast to the instant capital sentencing scheme, which applies to capital prosecutions for violations of Section 848(e), the Federal Death Penalty Act of 1994, 18 U.S.C. 3591 et seq., which applies to federal capital prosecutions for non-Title 21 offenses, provides that, as an alternative to a sentence of death, a jury may make a binding recommendation that a capital defendant be sentenced to a term of life without possibility of release. 18 U.S.C. 3593(e), 3594. Petitioner is incorrect (Pet. 14-15 & n.4) in suggesting that the FDPA "amended" the already-existing Title 21 capital statute in light of Simmons. It did not. In enacting the FDPA, Congress put in place a new, parallel federal capital sentencing scheme that is applicable to non-Title 21 offenses, but Congress did not amend the sentencing provisions of Section 848(e) et seq. in any respect. Those provisions remain in force today in capital cases brought under Section 848(e). See 21 U.S.C. 848(g).
9 Thus, petitioner errs in contending (Pet. 13) that, in his case, as in Shafer, "by the time the jury came to consider its capital sentencing decision, it had necessarily already made findings of statutory aggravating factors that eliminated the availability of any sentence less than life without the possibility of release."
10 Indeed, the petitioner in Shafer made this precise point in arguing that Flores ought not be read as precluding his Simmons challenge under the different South Carolina penalty scheme at issue in that case. See No. 00-5250, Pet. 17-18 ("The jury's only sentencing function under § 848 is to decide whether or not to impose the death penalty: if it does not, the judge selects a non-capital sentence. * * * While the facts of Flores made any less-than-life sentence highly unlikely, federal law did not preclude such a sentence, so Simmons did not apply").
11 In Ramdass, the Court rejected the same kind of argument that petitioner makes here. See 530 U.S. at 169 (rejecting Ramdass's argument that, in applying Simmons, the Court should "ignore the legal rules dictating parole eligibility under state law in favor of * * * a functional approach, under which * * * a court evaluates whether it looks like the defendant will turn out to be parole ineligible"). At the time of petitioner's capital sentencing hearing, the applicable federal sentencing scheme authorized the district court to impose a non-capital sentence within the range of 20 years of imprisonment to life imprisonment without release if the jury failed to recommend imposition of a death sentence. Although it was possible--even likely--that the district court would impose a life sentence if petitioner were not sentenced to death, that result was not required by law at the time of the sentencing hearing.
12 The Court's opinion in Simmons did announce a new rule at the time it was decided, although that rule is not retroactively applicable on collateral review. O'Dell v. Netherland, 521 U.S. 121 (1997). Petitioner, however, was entitled to and received review of his Simmons claim because his case was still pending on direct appeal.
13 The court of appeals also suggested that petitioner's claim would not satisfy the requirement that any new rule invoked in a second or successive motion have been "made retroactive to cases on collateral review by the Supreme Court." See Pet. App. 3. The meaning of that phrase is before this Court in Tyler v. Cain, No. 00-5961. Regardless how this Court resolves the issue in Tyler, however, petitioner's claim would be barred because Simmons was previously available and Shafer did not create a "new" rule. Thus, contrary to petitioner's contention (Pet. 26-29), there is no reason to hold this case pending the decision in Tyler.