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I changed the caption of my paper from "Jones v. The Death Penalty" to " Judge Carney v. The Death Penalty " so as to reflect the sua sponte essence of Carney's Order. In particular, on his own motion, on April 14, 2014 Carney issued a 2-page Order Directing Petitioner To File Amendment To Petition, as follows:
This Court believes [Jones] may have a viable claim . . . THEREFORE, THE COURT ORDERS . . . [that Jones] shall serve and file an amendment to his operative petition for writ of habeas corpus alleging [a] claim that the long delay in execution of sentence in his case, coupled with the grave uncertainty of not knowing whether his execution will ever, in fact, be carried out, renders his death sentence unconstitutional.
Jones was not invited but was very surprisingly ordered to file the new claim. On July 16, 2014 Carney's Order elaborated and affirmed the new claim, relying on Furman. The order is thus sua sponte in essence, created as a matter of judicial discretion. Accordingly, the proper standard of review asks whether, taking as true the allegations of longstanding dysfunction in the administration of a death penalty now imposed on 746 California inmates, [15] Carney abused his discretion by raising the new claim sua sponte. AEDPA limits will certainly not have conclusive weight in deciding whether discretion was abused. If it wasn't, then the merits of the claim are reached.
Unfortunately, due to the general lack of articulated sua sponte standards, the only express justification given for Carney's extraordinary initiative is that the "Court believes Jones may have a viable claim." This reason alone is obviously insufficient. The necessarily implied reason is that the court deems the ongoing systemic dysfunction no longer passively tolerable--a justification spelled out and substantiated plainly enough in Carney's Order. As a practical matter, there are sound reasons for a district (trial) court to exercise such sua sponte discretion. [16]
There is remarkably direct support for Carney's Order in the sua sponte dissent of Ninth Circuit Judges Noonan, Pregerson, and Norris, over twenty years ago, in Jeffers v. Lewis . [17] Albeit without citing Furman, Noonan explicitly urged ("justice requires it") the sua sponte raising and affirmance of a systemic arbitrariness claim against Arizona's administration of the death penalty, in essence identical to the claim affirmed in Carney's Order. In much the same language, both describe an intolerable state supreme court bottleneck resulting in freakishly rare executions.
Carney's sua sponte discretion also finds strong support as to ripeness, reasonableness, and detail in the nine pro-Jones amicus briefs; in the lack of any complaint as to his sua sponte initiative; and in Breyer's dissent a year later, which at a stretch can be read as marshalling the various theses of Carney and the amici. For example, Breyer's dissent and the amicus brief of the Innocence Project cite the same two studies finding that about 4% of death row inmates are innocent. This implies that California's death row houses about 30 innocent inmates.
Moreover, a week before the oral hearing in Jones, in People v. Seumanu [18] the California Supreme Court issued a unanimous 11-page advisory but unequivocal repudiation of Carney's Order, cementing Carney's commonsense as to the overriding need for a federal decision. The opinion culminated in the core advice that (at 102)
allowing each case the necessary time, based on its individual facts and circumstances, to permit this court's careful examination of the claims raised is the opposite of a system of random and arbitrary review.
This leaves no hope whatsoever for Carney's Order, which rests exclusively on the principle that such matter-of-life-and-death delay differences are arbitrary under Furman, and violate the Eighth Amendment, simply because they have nothing to do with the reprehensibility of the crime or criminal.
Last but not least, Furman itself is a spot-on sua sponte precedent. As Burger's dissent points out, the majority's radical "approach was not urged in oral arguments or briefs." Furman, at 397.
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The parties and the Ninth Circuit panel in Jones utterly ignored the sua sponte essence of Carney's Order, as did Carney's Order itself. [19] Both parties and both courts litigated the new claim exactly as though regularly filed by Jones, under AEDPA. That's inappropriate. How can AEDPA possibly apply with the same force to a nominal filing by a petitioner who even lacks the capacity to fully comply? Jones could not possibly have obtained a state court decision before the time in which he was ordered to file the new federal claim.
In directing that the new claim be filed, the district court exercised not a right to petition under AEDPA, but its Article III power to raise inextricably intertwined new issues when and as necessary and proper, and to assign the development of a suitably argued record. Sure, the court acting sua sponte must be mindful of and might choose to be guided by AEDPA's terms, but it is fundamental error to take those terms as controlling a judicial power that by definition is an exceptional form of ancillary jurisdiction. As necessary (rarely) and proper (within reason, depending on the exceptional circumstance), the judicial power can raise new claims beyond the extant statutory jurisdiction; and no statute can override the judicial power to say what the law is, including by raising new issues sua sponte. [20]
As the third branch of government, federal judges are assigned the task of settling the meaning of disputed questions of law, not just for the parties, but for all who must comply with it. Furthermore, they must do so free from outside influence. As a result, courts have the power to look beyond the parties' arguments when failing to do so would lead to an inaccurate or incomplete description of the law . . . [J]udicial issue creation is not a deviant act of judicial overreaching, [but it] operates mostly under the academic radar and without explanation or support. [21]
A federal court's power to raise new issues so as to properly resolve cases or controversies already before it is not mentioned in AEDPA, and, besides, any statute that purported to narrow that power would be up against the separation of powers. Superficially and small-mindedly, the non-amicus record in Jones is all about inherently inconclusive AEDPA exhaustion and retroactivity requirements. The Ninth Circuit panel was so obsessed with these AEDPA bars that it paid only enough attention to the merits to foreordain the convenient finding that Furman simply did not apply. In the process, without anyone seeming to notice, it concertinaed Furman to trial court proceedings, purportedly on "perfectly clear" grounds. [22] Perfectly absurd is more like it.
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