Habeas Corpus Resource Center et al v. United States Department of Justice et al, No. 4:2013cv04517 - Document 42 (N.D. Cal. 2013)
Court Description: ORDER GRANTING PRELIMINARY INJUNCTION. Signed by Judge Claudia Wilken on 12/4/2013. (ndr, COURT STAFF) (Filed on 12/4/2013)
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Habeas Corpus Resource Center et al v. United States Department of Justice et al Doc. 42 1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 4 5 6 HABEAS CORPUS RESOURCE CENTER and THE OFFICE OF THE FEDERAL PUBLIC DEFENDER FOR THE DISTRICT OF ARIZONA, v. 10 UNITED STATES DEPARTMENT OF JUSTICE and ERIC H. HOLDER, in his official capacity as United States Attorney General, 11 Defendants. 9 United States District Court For the Northern District of California ORDER GRANTING PRELIMINARY INJUNCTION Plaintiffs, 7 8 No. C 13-4517 CW 12 13 ________________________________/ On October 18, 2013, the Court issued an order to show cause 14 why a preliminary injunction should not issue and a temporary 15 restraining order enjoining Defendants until November 1, 2013 from 16 putting into effect the rule entitled, “Certification Process for 17 State Capital Counsel Systems,” published at 78 Fed. Reg. 58,160 18 (Sept. 23, 2013). 19 lapse in appropriations, Defendants had filed a request for a stay 20 and had not yet filed an opposition. 21 parties submitted a stipulation for an extended briefing schedule 22 in which they agreed to extend the temporary restraining order for 23 an additional fourteen days. 24 Center (HCRC)1 and the Office of the Federal Public Defender for The order was issued ex parte. Due to the On October 23, 2013, the Plaintiffs Habeas Corpus Resource 25 26 27 28 1 HCRC is an entity in the Judicial Branch of the State of California that, among other things, provides legal representation to men and women under sentence of death in state and federal habeas corpus proceedings. Complaint ¶ 16. Dockets.Justia.com 1 the District of Arizona (FDO-Arizona)2 seek a preliminary 2 injunction. 3 and United States Attorney General Eric H. Holder oppose the 4 motion.3 5 considered oral argument and the papers submitted by the parties, 6 the Court GRANTS Plaintiffs’ motion. Defendants United States Department of Justice (DOJ) The motion was heard on November 14, 2013. 7 8 9 Having BACKGROUND I. The 2013 Final Rule The Antiterrorism and Effective Death Penalty Act (AEDPA) of United States District Court For the Northern District of California 10 1996 added chapter 154 of Title 28 of the United States Code. 11 Chapter 154 provides expedited procedures in federal capital 12 habeas corpus cases when a state is able to establish that it has 13 provided qualified, competent, adequately resourced and adequately 14 compensated counsel to death-sentenced prisoners. 15 AEDPA, federal courts were responsible for determining whether 16 states were eligible for the expedited federal procedures. 17 USA Patriot Improvement and Reauthorization Act of 2005, Pub. L. 18 No. 109-174, 120 Stat. 192 (2005), amended chapter 154 to shift 19 the eligibility determination from the federal courts to the 20 Attorney General. Under the The 21 22 23 24 25 26 27 28 2 FDO-AZ is a Federal Defender organization that operates under the authority of the Criminal Justice Act of 1964, 18 U.S.C. § 3006A(g). Among other things, FDO-AZ provides legal representation to indigent men and women sentenced to death. Complaint ¶ 17. 3 On November 22, 2013, the Court granted Marc Klaas’s motion to file a brief as amicus curiae. The Court has reviewed the brief, Plaintiffs’ response to it and amicus’s reply. The Court finds that the amicus brief does not alter the Court’s assessment of the motion. 2 1 In December 2008, the Attorney General published a final rule 2 to implement the procedure prescribed by chapter 154. 3 20, 2009, the Court granted a preliminary injunction, enjoining 4 Defendants from putting the regulation into effect without first 5 providing an additional comment period of at least thirty days and 6 publishing a response to any comments received during such a 7 period. 8 of Justice, 2009 WL 185423, *10 (N.D. Cal.). 9 Defendants solicited further public comment on its proposed On January Habeas Corpus Resource Ctr. v. United States Department On February 5, 2009, United States District Court For the Northern District of California 10 certification process. 11 the 2008 regulation pending the completion of a new rulemaking 12 process. 13 2010, the Defendants published a final rule retracting the 2008 14 regulations. 15 Defendants thereafter proposed to retract See 75 Fed. Reg. 29,217 (May 25, 2010). On November 23, See 75 Fed. Reg. 71,353 (Nov. 23, 2010). On March 3, 2011, the DOJ published a notice of proposed 16 rulemaking for a new certification process. 76 Fed. Reg. 11,705. 17 The comment period closed on June 1, 2011. On February 13, 2012, 18 the DOJ then published a supplemental notice soliciting public 19 comments on five contemplated changes. 20 comment period closed on March 14, 2012. 21 Final Rule was published. 22 77 Fed. Reg. 7559. The On September 2013, the Section 26.22 of the Final Rule prescribes the standards a 23 state must meet in order to earn certification under 28 U.S.C. 24 §§ 2261 and 2265. The Final Rule provides: 25 § 26.22 Requirements. 26 The Attorney General will certify that a State meets the requirements for certification under 28 U.S.C. 2261 and 2265 if the Attorney General determines that the State has established a mechanism for the appointment of 27 28 3 counsel for indigent prisoners under sentence of death in State postconviction proceedings that satisfies the following standards: . . . (b) The mechanism must provide for appointment of competent counsel as defined in State standards of competency for such appointments. 1 2 3 4 5 (1) A State’s standards of competency are presumptively adequate if they meet or exceed either of the following criteria: 6 7 (i) Appointment of counsel who have been admitted to the bar for at least five years and have at least three years of postconviction litigation experience. But a court, for good cause, may appoint other counsel whose background, knowledge, or experience would otherwise enable them to properly represent the petitioner, with due consideration of the seriousness of the penalty and the unique and complex nature of the litigation; or 8 9 United States District Court For the Northern District of California 10 11 12 13 (ii) Appointment of counsel meeting qualification standards established in conformity with 42 U.S.C. 14163(e)(1) and (2)(A), if the requirements of 42 U.S.C. 14163(e)(2)(B), (D), and (E) are also satisfied. 14 15 16 (2) Competency standards not satisfying the benchmark criteria in paragraph (b)(1) of this section will be deemed adequate only if they otherwise reasonably assure a level of proficiency appropriate for State postconviction litigation in capital cases. 17 18 19 20 78 Fed. Reg. at 58,183. 21 with 42 U.S.C § 14163(e)(1) and (2)(A)” referred to in section 22 26.22(b)(1)(ii) are provisions of the Innocence Protection Act 23 (IPA). 24 attorneys, specialized training programs for attorneys providing 25 capital case representation, monitoring of the performance of 26 attorneys who are appointed and their attendance at training 27 programs, and removal from the roster of attorneys who fail to The “standards established in conformity They call for maintenance of a roster of qualified 28 4 1 deliver effective representation, engage in unethical conduct, or 2 do not participate in required training. 3 §§ 14163(e)(2)(B),(D), and (E). 4 5 6 7 8 9 United States District Court For the Northern District of California 10 11 42 U.S.C. Section 26.23 of the Final Rule provides the process for a state’s certification: (a) An appropriate State official may request in writing that the Attorney General determine whether the State meets the requirements for certification under § 26.22 of this subpart. (b) Upon receipt of a State’s request for certification, the Attorney General will make the request publicly available on the Internet (including any supporting materials included in the request) and publish a notice in the Federal Register— 12 13 14 15 (1) Indicating that the State has requested certification; (2) Identifying the Internet address at which the public may view the State’s request for certification; and 16 (3) Soliciting public comment on the request. 17 18 19 20 21 22 23 24 25 26 27 28 (c) The State’s request will be reviewed by the Attorney General. The review will include consideration of timely public comments received in response to the Federal Register notice under paragraph (b) of this section, or any subsequent notice the Attorney General may publish providing a further opportunity for comment. The certification will be published in the Federal Register if certification is granted. The certification will include a determination of the date the capital counsel mechanism qualifying the State for certification was established. (d) A certification by the Attorney General reflects the Attorney General’s determination that the State capital counsel mechanism reviewed under paragraph (c) of this section satisfies chapter 154’s requirements. A State may request a new certification by the Attorney General to ensure the continued applicability of chapter 154 to cases in which State 5 postconviction proceedings occur after a change or alleged change in the State’s certified capital counsel mechanism. Changes in a State’s capital counsel mechanism do not affect the applicability of chapter 154 in any case in which a mechanism certified by the Attorney General existed throughout State postconviction proceedings in the case. 1 2 3 4 5 (e) A certification remains effective for a period of five years after the completion of the certification process by the Attorney General and any related judicial review. If a State requests re-certification at or before the end of that five-year period, the certification remains effective for an additional period extending until the completion of the re-certification process by the Attorney General and any related judicial review. 6 7 8 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 78 Fed. Reg. at 58,184. II. The Impact of the 2013 Final Rule Once a state is certified, the statute of limitations for federal habeas corpus proceedings is “fast-tracked.” First, the statute of limitations for filing a habeas petition in federal court is shortened from one year to 180 days. § 2263(a). 28 U.S.C. Second, tolling of the statute of limitations is altered to exclude (1) the period of time between the finality of direct review in state court to the filing of a petition for writ of certiorari in the United States Supreme Court and (2) the filing of exhaustion or successive state habeas petitions. U.S.C. § 2263(b). 28 Third, a petitioner’s ability to amend a petition is limited. 28 U.S.C. § 2266(b)(3)(B). Fourth, a federal district court must enter final judgment on a habeas petition within 450 days of the filing of the petition, or sixty days after it is submitted for decision--whichever is earlier. U.S.C. § 2266(b). Finally, the certification is retroactive, reaching back to the date the qualifying mechanism is found to 6 28 1 have been established. 2 mechanism described in paragraph 1(A) was established shall be the 3 effective date of the certification under this subsection.”). 28 U.S.C. § 2265(a)(2) (“The date the 4 LEGAL STANDARD 5 It is appropriate to issue a preliminary injunction if the 6 moving party establishes either (1) a combination of probable 7 success on the merits and the possibility of irreparable injury, 8 or (2) that serious questions are raised and the balance of 9 hardships tips sharply in favor of the moving party. Stuhlbarg United States District Court For the Northern District of California 10 Intern. Sales Co. v. John D. Brush and Co., 240 F.3d 832, 839–840 11 (9th Cir. 2001). 12 represent two points on a sliding scale in which the degree of 13 irreparable harm increases as likelihood of success on the merits 14 decreases.” 15 for Economic Equity, 950 F.2d 1401, 1410 (9th Cir. 1991) 16 (citations omitted). 17 party seeking a preliminary injunction always must show that a 18 significant threat of irreparable harm exists. 19 Media Corp. v. Cass Communications, Inc., 750 F.2d 1470, 1473 (9th 20 Cir. 1985). 21 also consider the public interest when it assesses the propriety 22 of issuing an injunction. 23 Court, 303 F.3d 959, 973 (9th Cir. 2002). 24 25 26 “These formulations are not different tests, but Associated Gen. Contractors of Calif. v. Coalition Under either formulation of the test, a American Passage In addition, in the Ninth Circuit, the Court must Sammartano v. First Judicial District DISCUSSION I. Likelihood of Success on Procedural Issues The APA “requires an agency conducting notice-and-comment 27 rulemaking to publish in its notice of rulemaking ‘either the 28 terms or substance of the proposed rule or a description of the 7 1 subjects and issues involved.’” 2 Coke, 551 U.S. 158, 174 (2001) (quoting 5 U.S.C. § 553(b)(3)). 3 Because the Attorney General’s promulgation of the Final Rule 4 constitutes administrative rulemaking, it must comply with the 5 rulemaking provisions of the APA. 6 determine compliance, courts inquire whether “the notice fairly 7 apprise[s] the interested persons of the subjects and issues 8 before the Agency.’” 9 975 (9th Cir. 2005). United States District Court For the Northern District of California 10 Long Island Care at Home, Ltd. v. See 5 U.S.C. § 553. To Louis v. U.S. Dep’t of Labor, 419 F.3d 970, The Court finds that Plaintiffs are likely to succeed on 11 their claim that the Attorney General failed to provide adequate 12 notice under the APA because he stated, for the first time in the 13 Final Rule, that the certification decisions are not subject to 14 the rulemaking provisions of the APA. 15 Attorney General’s certifications under chapter 154 are orders 16 rather than rules for purposes of the Administrative Procedure Act 17 (APA). 18 provisions, see 5 U.S.C. § 553[.]”). 19 been denied an opportunity to comment on the Attorney General’s 20 view. 21 position, its notice of proposed rulemaking has not “provide[d] 22 sufficient factual detail and rationale for the rule to permit 23 interested parties to comment meaningfully.” 24 Inc. v. EPA, 372 F.3d 441, 445 (D.C. Cir. 2004) (citation 25 omitted). 26 78 Fed. Reg. 58,174 (“[T]he They are accordingly not subject to the APA’s rulemaking Interested parties may have When an agency fails to notify interested parties of its Honeywell Int’l., Defendants respond that the retracted 2008 rule provided 27 sufficient notice under the APA because the current Attorney 28 General adhered to the position of his predecessor. 8 Defendants’ argument is unpersuasive. 2 of a new proposed rule that resembled the 2008 rule, but omitted 3 its characterization of certification decisions as adjudications, 4 not rules. 5 Attorney General adhered to this position taken by his 6 predecessor, it is more likely that the notice of the new rule led 7 interested parties to presume that the Attorney General 8 intentionally removed this characterization. 9 Corp. v. United States, 508 U.S. 200, 208 (1993) (“Where Congress 10 United States District Court For the Northern District of California 1 includes particular language in one section of a statute but omits 11 it in another . . . , it is generally presumed that Congress acts 12 intentionally and purposely in the disparate inclusion or 13 exclusion.”) (citation and internal quotation marks omitted). 14 The Attorney General published a notice Far from alerting the public to the fact that the See, e.g., Keene Defendants additionally contend that certification decisions 15 are self-evidently adjudications, and thus that they were not 16 required to provide notice of their view. 17 for such a contention. 18 certification determinations are unlike typical APA adjudications 19 that are individualized, including Social Security and Medicare 20 benefits claims. 21 “affects the rights of broad classes” of individuals and impacts 22 such persons “after the [decision] is applied.” 23 Cmty. Council v. Cisneros, 37 F.3d 442, 448 (9th Cir. 1994). 24 Further, the 2011 Proposed Rule and 2012 Supplemental Notice 25 included indicia of rulemaking, e.g. publication and a notice and 26 comment period. 27 their claim that certification is self-evidently an adjudication. Scarce authority exists As Plaintiffs note, the Attorney General’s Rather, this particular certification decision Yesler Terrace Defendants thus have not provided authority for 28 9 1 Accordingly, Plaintiffs are likely to succeed in 2 demonstrating that Defendants were obliged to provide notice of 3 their view that rulemaking procedures would not apply to the 4 certification decision. 5 notice that omitted “potentially controversial subject matter” 6 insufficient); Habeas Corpus Res. Ctr. v. U.S. Dept. of Justice, 7 2009 WL 185423, at *8 (N.D. Cal.) (holding that notice was 8 inadequate when public commenters did not reflect any 9 understanding of DOJ’s controversial interpretation and likely United States District Court For the Northern District of California 10 11 See Louis, 419 F.3d at 976 (finding would have disputed it had they been provided notice). The Court concludes that the Final Rule likely did not give 12 adequate notice of the Attorney General’s view of the 13 certification process. 14 succeed on the merits of this claim. 15 Accordingly, Plaintiffs are likely to II. Likelihood of Success on the Challenges to the Final Rule 16 A. 17 Defendants assert Plaintiffs lack standing to pursue their Standing 18 challenge to the substance of the Final Rule and thus cannot 19 satisfy Article III’s “case or controversy requirement.” 20 plaintiff “has the burden of establishing the three elements of 21 Article III standing: (1) he or she has suffered an injury in fact 22 that is concrete and particularized, and actual or imminent; 23 (2) the injury is fairly traceable to the challenged conduct; and 24 (3) the injury is likely to be redressed by a favorable court 25 decision.” 26 F.3d 1220, 1225 (9th Cir. 2008). 27 an injury that is actual or imminent, not conjectural or A Salmon Spawning & Recovery Alliance v. Gutierrez, 545 “Article III standing requires 28 10 hypothetical.” 2 1092, 1100 (9th Cir. 2000) (internal quotation marks omitted). 3 plaintiff may allege a future injury in order to comply with this 4 requirement, but only if he or she ‘is immediately in danger of 5 sustaining some direct injury as the result of the challenged 6 official conduct and the injury or threat of injury is both real 7 and immediate, not conjectural or hypothetical.’” 8 Pasadena Unified School Dist., 306 F.3d 646, 656 (9th Cir. 2002) 9 (quoting City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983)). 10 United States District Court For the Northern District of California 1 Defendants first incorrectly state that the Court has found 11 that Plaintiffs lack standing with regard to substantive claims. 12 Defs.’ Resp. at 14–15. 13 standing issues were not before this Court, because Plaintiff HCRC 14 raised only procedural deficiencies. 15 to Mot. for Preliminary Inj., Docket No. 71, Case No. 08-cv-02649, 16 at 6. 17 to substantive standing issues and found that HCRC had standing to 18 challenge procedural defects. 19 185423, at *5. 20 Cole v. Oroville Union High School Dist., 228 F.3d “A Scott v. In the prior litigation, substantive See HCRC’s Reply Br. to Opp. Accordingly, in the prior case the Court made no finding as Habeas Corpus Res. Ctr., 2009 WL Defendants contend that Plaintiffs lack standing because 21 their injuries are speculative and not imminent. 22 Defendants, Plaintiffs’ injuries will occur only if California or 23 Arizona are certified. 24 consequences of permitting the flawed rule to go into effect are 25 not contingent on whether California will be certified, but rather 26 upon the inability to predict whether California qualifies for 27 chapter 154’s benefits[.]” 28 Laurence ¶ 3. According to Plaintiffs respond that “the harmful Supplemental Declaration of Michael It is Defendants’ position that the retroactive 11 1 effect of the Final Rule reaches back to the date at which the 2 state mechanism went into effect. 3 certify a state and deem a state’s mechanism to have gone into 4 effect at a prior date, the deadline for a habeas petitioner’s 5 application may have come and gone without his knowing it. 6 confusion caused by the claimed retroactive effect forces 7 Plaintiff HCRC to make urgent decisions regarding its litigation, 8 resources, and strategy. 9 In other words, were the DOJ to Arizona has already applied for certification. The If Arizona is United States District Court For the Northern District of California 10 certified, under Defendants’ interpretation of the Final Rule, 11 Arizona’s certification will reach back to the date when the 12 mechanism is found to have been established. 13 caused by the retroactive effect of the Final Rule curtails and 14 disrupts FDO-Arizona’s capacity to counsel its clients 15 meaningfully. 16 the present injury alleged by Plaintiffs is actual and 17 particularized, and the future injury is predictable and imminent. 18 As the Court has found previously, there can be little doubt that 19 the legal uncertainty of the retroactive effect of the new 20 limitations period will severely harm Plaintiffs, leaving them in 21 protracted legal limbo. 22 Defendants have articulated no persuasive response to suggest 23 otherwise. 24 The uncertainty Declaration of Dale Baich ¶¶ 10-12. Accordingly, Docket No. 26, TRO Order at 8. Defendants argue next that Plaintiffs lack standing to raise 25 substantive claims because they do not meet the second and third 26 elements of Article III standing. 27 Plaintiffs can trace their actual or future injuries to the 28 implementation of the Final Rule. 12 Defendants’ argument fails. The implementation “will result 1 in known, predictable consequences” that constitute concrete 2 injury. 3 Cir. 2004) (finding that plaintiff’s harm was traceable to the 4 implementation of defendant’s proposed plan, and “because 5 Sausalito’s asserted injuries will not occur if the Plan is not 6 implemented, Sausalito has alleged injury that can be redressed by 7 a decision blocking implementation of the Plan.”). 8 Plaintiffs’ injuries will not occur if the Final Rule is not 9 implemented, Plaintiffs have alleged injury that can be redressed City of Sausalito v. O’Neill, 386 F.3d 1186, 1199 (9th Because United States District Court For the Northern District of California 10 by a decision blocking implementation of the Final Rule as 11 written. 12 Id. The Court concludes that Plaintiffs have standing to 13 challenge the substance of the Final Rule. 14 alleged harm with sufficient detail to state a “concrete and 15 particularized” injury. 16 proposed implementation of the Final Rule. 17 alleged injury that can be redressed by a decision blocking 18 implementation of the Final Rule as written. First, they have Second, the injury can be traced to the Third, Plaintiffs have 19 B. 20 Under § 706(2)(A) of the APA, a reviewing court shall “hold Deficient Certification Process 21 unlawful and set aside agency action, findings, and conclusions 22 found to be arbitrary, capricious, an abuse of discretion, or 23 otherwise not in accordance with the law.” 24 Final regulations are arbitrary and capricious when they fail to 25 provide “definitional content” for terms guiding agency action 26 implementing a statute. 27 (D.C. Cir. 1999). 28 content to statutory standards it is tasked with implementing. 5 U.S.C. § 706(2)(A). Pearson v. Shalala, 164 F.3d 650, 660 An agency is “obliged under the APA” to give 13 1 Id. at 661. 2 “utterly without guidance as to what he must prove, and how.” 3 Terminal Corp. v. EPA, 504 F.2d 646, 670 (1st Cir. 1974). 4 an agency utterly fails to provide a standard for its decision, it 5 runs afoul of more than one provision of the Administrative 6 Procedure Act. . . . An agency’s failure to state its reasoning or 7 to adopt an intelligible decisional standard is so glaring that we 8 can declare with confidence that the agency action was arbitrary 9 and capricious.” United States District Court For the Northern District of California 10 An agency cannot leave a prospective applicant S. “When Checkosky v. SEC, 139 F.3d 221, 226 (D.C. Cir. 1998) (citation omitted). 11 The Court finds that Plaintiffs are likely to succeed in 12 demonstrating that the certification process is arbitrary and 13 capricious in one or more of the multiple ways they posit. 14 1. Substantive Criteria 15 Plaintiffs may succeed in showing that the Final Rule is 16 arbitrary and capricious in that it provides no substantive 17 criteria as to how a state may satisfy the requirements of chapter 18 154. 19 competency standards “reasonably assure a level of proficiency 20 appropriate for State post-conviction litigation in capital 21 cases.” 22 all” provision is broad and vague. 23 to other provisions in section 26.22 and argue that section 24 26.22(b) should not be read “in isolation.” 25 dispute that the Attorney General can base his certification 26 decision on section 26.22(b) alone. 27 language does not offer meaningful notice as to how certification 28 decisions will be made pursuant to it. Section 26.22(b) allows a state to be certified if its 78 Fed. Reg. 58,162. Plaintiffs argue that this “catch- 14 In response, Defendants point But Defendants do not Section 26.22(b)’s vague 1 Defendants also argue that the catch-all provision gives 2 effect to congressional intent. 3 intended that states be given “wide latitude to establish a 4 mechanism that complies with [the statutory requirements.]” 5 Fed. Reg. 58, 162. 6 rein. 7 that although the Education of the Handicapped Act gives states 8 the “primary responsibility for developing and executing programs, 9 it imposes significant requirements to be followed in the United States District Court For the Northern District of California 10 11 According to Defendants, Congress 78 But latitude should not be conflated with free See Bd. of Educ. v. Rowley, 458 U.S. 76, 183 (1982) (noting discharge of that responsibility.”). In June 1988, a committee, chaired by retired Supreme Court 12 Justice Lewis Powell, was commissioned by Chief Justice Rehnquist 13 to assess the delay and lack of finality in capital cases. 14 Cong. Rec. 24694 (1989), Ad Hoc Committee on Federal Habeas Corpus 15 in Capital Cases Committee Report (Powell Committee Report). 16 Powell Committee, whose proposal chapter 154 essentially codifies, 17 explained that the “provision of competent counsel for prisoners 18 under capital sentence throughout both state and federal 19 collateral review is crucial to ensuring fairness and protecting 20 the constitutional rights of capital litigants.” 21 S13471-04, S13481, S13482, Powell Committee Report. 22 154, Congress provided a quid pro quo design: a state receives 23 expedited federal review in exchange for its guarantee of adequate 24 representation in state habeas corpus proceedings. 25 Calderon, 31 F. Supp. 2d 1175, 1180 (N.D. Cal. 1998) aff'd sub 26 nom. Ashmus v. Woodford, 202 F.3d 1160 (9th Cir. 2000) (“As courts 27 have uniformly held, chapter 154 explicitly contemplates a quid 28 pro quo relationship.”). 135 The 135 Cong. Rec. In chapter See Ashmus v. The legislative history of chapter 154 15 1 supports the principle that a regulation pursuant to it must 2 require that a state actually uphold its end of the bargain -- to 3 provide competent representation. 4 wide latitude in providing for competent representation in a 5 number of specified, equivalent ways, without the latitude of 6 specifying no requirements at all. 7 8 9 The states could be afforded 2. State’s Obligation to Take Affirmative Steps Plaintiffs may also succeed in showing that the Final Rule is arbitrary and capricious because it departs from chapter 154’s United States District Court For the Northern District of California 10 requirement that a state take affirmative steps to prove its 11 eligibility. 12 13 14 15 16 17 18 One court has explained: “If Congress had intended to afford the States the very significant benefits conferred by Chapter 154 on the basis of a finding of substantial compliance based on past performance, it could have done so. However, it elected not to do so; and instead, Congress chose to confer those benefits only if the State made an affirmative, institutionalized, formal commitment to provide a post-conviction review system which Congress considered to be ‘crucial to ensuring fairness and protecting the constitutional rights of capital litigants.’ Powell Committee Report at 3240.” 19 20 Ashmus, 31 F. Supp. 2d at 1183 (quoting Satcher v. Netherland, 944 21 F. Supp. 1222, 1243 (E.D. Va. 1996)). 22 must establish a system reflecting ‘an affirmative, 23 institutionalized, formal commitment’ to habeas representation,” 24 and Congress did not intend to permit procedures that “suffer from 25 incoherence or incompleteness.” 26 Ashmus found that “a state Ashmus, 31 F. Supp. 2d at 1183. Defendants respond that the Final Rule is not arbitrary and 27 capricious because it properly places the burden on states “to 28 demonstrate that they have established a compliant capital counsel 16 1 appointment mechanism, and subjects that demonstration to public 2 scrutiny.” 3 assertion, the rule as written requires only a bare-bones request. 4 Pursuant to the Final Rule, a state desiring certification must 5 submit a “request in writing that the Attorney General determine 6 whether the State meets the requirements for certification under § 7 26.22 of this subpart.” 8 burden shifts to the public -- more precisely, to indigent death- 9 sentenced prisoners -- to demonstrate that the state does not Defs.’ Resp. at 20. Contrary to Defendants’ 78 Fed. Reg. 58,184. At that point, the United States District Court For the Northern District of California 10 comply. 11 record of compliance with its mechanism. 12 (stating that certification decision “need not be supported by a 13 data-intensive examination of the State’s record of compliance 14 with the established mechanism in all or some significant subset 15 of postconviction cases.”). 16 procedures are adequate. 17 to explain how its mechanism qualifies under chapter 154, the 18 Final Rule may depart from chapter 154’s requirement that the 19 state take affirmative steps to qualify. 20 132 S. Ct. 476 (2011) (finding that the agency’s regulation was 21 arbitrary and capricious because it bore little relation to the 22 purpose of the law). 23 24 A state applicant need not submit data demonstrating its See 78 Fed. Reg. 78,174 Nor must a state demonstrate that its By severely lessening a state’s burden See Judulang v. Holder, 3. Actual Compliance with Terms of Submitted Mechanism The Final Rule does not require a state to show that it has 25 actually complied with the terms of its submitted mechanism. 26 mere existence of state requirements for the appointment, 27 compensation and expenses of competent counsel does not ensure 28 that such requirements are applied and enforced in practice. 17 The 1 Indeed, as FDO-Arizona notes, capital prisoners generally wait 2 more than a year and a half after state court affirmance of their 3 convictions and sentences before state post-conviction counsel is 4 appointed. 5 Arizona (June 1, 2011), AR 583-84. 6 Public Comment of Federal Public Defender--District of It is common sense that a state must actually comply with its 7 own mechanism, but the history, purpose and exhaustive judicial 8 interpretation of chapter 154 also support this view. 9 Circuit put it most plainly in Tucker v. Catoe, 221 F.3d 600, 604- United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 The Fourth 05 (4th Cir. 2000): We accordingly conclude that a state must not only enact a “mechanism” and standards for postconviction review counsel, but those mechanisms and standards must in fact be complied with before the state may invoke the time limitations of [chapter 154]. Not only is this conclusion consistent with our precedent, but it is also consistent with common sense: It would be an astounding proposition if a state could benefit from the capital-specific provisions of AEDPA by enacting, but not following, procedures promulgated [to meet chapter 154 requirements]. 18 19 20 21 22 23 24 25 26 27 28 The Supreme Court noted that AEDPA “creates an entirely new chapter 154 with special rules favorable to the state party, but applicable only if the State meets certain conditions.” Murphy, 521 U.S. 320, 326 (1997) (emphasis added). Lindh v. In other words, a state may reap procedural benefits only if it has “done its part to promote sound resolution of prisoners’ petitions.” Id. at 330. See also Baker v. Corcoran, 220 F.3d 276, 286 (4th Cir. 2000) (Maryland did not qualify for chapter 154 provisions because the state’s competency standards were not applied in the appointment process and the “[c]ompetency standards are 18 1 meaningless unless they are actually applied in the appointment 2 process”); Ashmus, 202 F.3d at 1168 (stating that California must 3 abide by its competency standards when appointing counsel and 4 concluding that “a state’s competency standards must be mandatory 5 and binding if the state is to avail itself of Chapter 154”); Mata 6 v. Johnson, 99 F.3d 1261, 1267 (5th Cir. 1996), vacated in part on 7 other grounds in 105 F.3d 209 (5th Cir. 1997) (stating that 8 competency standards must be “specific” and “mandatory” in order 9 to satisfy the opt-in requirements). Plaintiffs may succeed in United States District Court For the Northern District of California 10 showing that the Final Rule is arbitrary and capricious for this 11 reason. 12 13 4. Effect of Common Law Plaintiffs may succeed in demonstrating that the Final Rule 14 is arbitrary and capricious because it does not address the effect 15 of judicial interpretation. 16 thoughtful body of law addressing chapter 154, Defendants fail to 17 show with any specificity how the Attorney General's certification 18 decision will be guided by it. 19 General submitted an application on March 11, 2013, seeking 20 certification based on a state mechanism established in 1995. 21 Declaration of Michael Laurence ¶ 12, Ex. B. 22 Appeals for the Fifth Circuit in Mata, 99 F.3d at 1267, has held 23 that the mechanism in place at that time did not comply with 24 chapter 154. 25 incorporate the standards and rulings of the courts to a state’s 26 application. 27 28 In spite of the considerable and For instance, the Texas Attorney Yet, the Court of The Final Rule does not explain whether it will Defendants represent in a footnote in their response brief that the Final Rule will not invalidate prior case law. 19 Defs.’ 1 Resp. at 9, n.8. 2 the Final Rule: “[P]rior judicial interpretation of chapter 154, 3 much of which remains generally informative, supports many 4 features of this rule, as th[e] preamble documents. 5 the rule approaches certain matters differently from some past 6 judicial interpretations, there are reasons for the differences.” 7 Id. 8 addressing judicial interpretation does not provide assurance that 9 the Attorney General will be guided by the case law addressing United States District Court For the Northern District of California 10 (citing 78 Fed. Reg. 58,164). To the extent The Final Rule’s language chapter 154 in making his certification decisions. 11 12 In support of this contention, Defendants cite 5. Ex Parte Communication Finally, Plaintiffs may succeed in demonstrating that the 13 Final Rule is arbitrary and capricious because it fails to address 14 the nature and effect of ex parte communication between the United 15 States Attorney General and state officials. 16 Final Rule went into effect, Attorney General Holder and the 17 Arizona Attorney General commenced a process of certification 18 without notifying interested parties. 19 April 18, 2013, Arizona Attorney General Tom Horne sent a letter 20 to Attorney General Holder requesting certification of Arizona as 21 an “opt-in” state. 22 this letter only through a press release issued by the Arizona 23 Attorney General’s Office. 24 letter to Attorney General Holder, referring to Horne’s letter and 25 formally requesting notification of any correspondence or 26 communication between the DOJ and the Arizona Attorney General’s 27 Office. 28 months prior to the publication of the Final Rule -- the DOJ Baich Dec., Ex. E. Baich Dec., Ex. F. Even before the Baich Dec., Exs. E, F. On FDO-Arizona learned of On June 4, 2013, FDO-Arizona wrote a On July 16, 2012 -- more than two 20 1 informed Arizona that it would review the state’s application 2 immediately. 3 DOJ stated that it would begin reviewing Arizona’s application to 4 “help speed up the ultimate determination of the certification.” 5 Baich Dec., Ex. G. 6 DOJ’s response to Arizona and did not receive an acknowledgment of 7 or a response to its letter and. 8 9 In its letter to the Arizona Attorney General, the Plaintiff FDO-Arizona was not copied on the Baich Dec. ¶¶ 7-8. In their brief Defendants appear to contend that their private communications with state attorneys general will be merely United States District Court For the Northern District of California 10 “ministerial communications.” 11 argument Defendants were asked to explain the meaning of this 12 evidently subjective term. 13 Defendants expanded their position to argue that nothing in the 14 Final Rule prohibits Defendants from engaging in ex parte 15 communication, ministerial or not, with state attorneys general. 16 However, the APA’s notice requirements exist to afford interested 17 parties a meaningful opportunity to respond to agency action. 18 Erringer v. Thompson, 371 F.3d 625, 629 (9th Cir. 2004). 19 Final Rule itself states that all requests will be made publicly 20 available, making no allowance for ex parte communication. 21 Fed. Reg. 58,184. 22 parties from offering input regarding the validity and accuracy of 23 the undisclosed documents. 24 Defs.’ Resp. at 12-13. At oral Rather than define “ministerial,” The 78 Ex parte communication excludes interested Accordingly, Plaintiffs may succeed in demonstrating that the 25 Final Rule is arbitrary and capricious because it lacks specific 26 guidelines addressing the DOJ’s disclosure of ex parte 27 communication with state officials. 28 articulate transparent and specific parameters governing the 21 The Final Rule's failure to 1 Attorney General's ex parte communication with state officials 2 leaves Plaintiffs and the public in the dark, depriving them of 3 the opportunity to offer meaningful opposition. 4 In sum, Plaintiffs may prevail on their claims that the Final Rule does not provide substantive criteria as to how a state may 6 satisfy the requirements of chapter 154; shifts the burden of 7 proof from the state to the condemned to demonstrate that the 8 state mechanism does not qualify under chapter 154; does not 9 require the state to show that it actually complies with the terms 10 United States District Court For the Northern District of California 5 of its submitted mechanism; does not show with any specificity how 11 the considerable body of law addressing chapter 154 will guide the 12 Attorney General's certification decision; and does not address 13 the nature and effect of ex parte communication between the 14 Attorney General and state officials. 15 Plaintiffs are likely to succeed on the merits of their claim that 16 the Final Rule is arbitrary and capricious under the APA. 17 18 19 20 21 22 23 24 25 26 27 The Court finds that III. Irreparable Harm, Balance of Equities, and the Public Interest Plaintiffs have demonstrated a likelihood of irreparable harm sufficient to warrant granting a preliminary injunction. Were the Final Rule to go into effect, the possibility that California could apply for certification at any time or that Arizona, which has already applied for certification, could be certified at any time will “thrust Plaintiffs into uncertainty over the legal framework that applies to state and federal post-conviction remedies already being pursued on behalf of its clients.” Corpus Res. Ctr., 2009 WL 185423, at *9. 28 22 Habeas 1 Defendants’ primary argument is that Plaintiffs will not 2 suffer irreparable harm because any harm is “contingent on Arizona 3 or California being certified under the Final Rule.” 4 connection with Plaintiffs’ standing argument above, HCRC has 5 explained that “the harmful consequences of permitting the flawed 6 rule to go into effect are not contingent on whether California 7 will be certified, but rather upon the inability to predict 8 whether California qualifies for chapter 154’s benefits[.]” 9 Supplemental Laurence Dec. ¶ 3. As noted in Because the Final Rule offers few United States District Court For the Northern District of California 10 substantive criteria that illuminate whether California will be 11 certified, HCRC is forced to revise its strategy and management of 12 resources in anticipation of potential certification. 13 given the fact that Arizona has already applied for certification, 14 FDO-Arizona is forced to prepare for the possibility of 15 drastically expedited federal review procedures. 16 ¶¶ 10-12. Similarly, Baich Dec. 17 Title 28 U.S.C. § 2265(a)(2) provides that a state's 18 certification is retroactive to the date on which its mechanism 19 for appointing counsel was established. 20 Temporary Restraining Order, the legal uncertainty of the 21 retroactive effect of the new limitations period combined with the 22 possibility that California could apply for certification at any 23 time or that Arizona’s pending application for certification could 24 be approved would create serious uncertainty with respect to “the 25 legal framework that applies to state and federal post-conviction 26 remedies already being pursued.” 27 185423 at *9. As discussed in the Habeas Corpus Res. Ctr., 2009 WL 28 23 1 Compared to the harm faced by Plaintiffs, Defendants stand to 2 face little, if any, harm if the Final Rule does not go into 3 effect immediately. 4 2005. 5 Defendants only recently attempted to revive it. 6 delay pending resolution of this lawsuit will not prejudice them. 7 Public interest likewise favors maintaining the status quo while 8 the legality of Defendants' rule is determined. The Patriot Act amendments were passed in After retracting their 2008 proposed rule in 2010, 9 United States District Court For the Northern District of California 10 An additional CONCLUSION For the foregoing reasons, the Court GRANTS Plaintiffs’ 11 motion for a preliminary injunction. 12 litigation, Defendants are enjoined from putting into effect the 13 rule entitled, “Certification Process for State Capital Counsel 14 Systems,” published at 78 Fed. Reg. 58,160 (Sept. 23, 2013). During the pendency of this 15 16 IT IS SO ORDERED. 17 18 19 Dated: 12/4/2013 CLAUDIA WILKEN United States District Judge 20 21 22 23 24 25 26 27 28 24
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