|STEWART v. MARTINEZ-VILLAREAL (97-300)|
118 F.3d 628, affirmed.
[ Rehnquist ]
[ Scalia ]
[ Thomas ]
Scalia, J., dissenting
TERRY STEWART, DIRECTOR, ARIZONA
DEPARTMENT OF CORRECTION, et al.,
PETITIONERS v. RAMON MARTINEZ-
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT AND OTHER RELIEF
[May 18, 1998]
Justice Scalia, with whom Justice Thomas joins, dissenting.
It is axiomatic that the power to award the writ [of habeas corpus] by any of the courts of the United States, must be given by written law. Ex parte Bollman, 4 Cranch 75, 94 (1807) (Marshall, C. J.). And it is impossible to conceive of language that more clearly precludes respondents renewed competency-to-be-executed claim than the written law before us here: a claim presented in a second or successive habeas corpus application that was presented in a prior application shall be dismissed. 28 U.S.C. A. §2244(b)(1) (Supp. 1997) (emphasis added). The Court today flouts the unmistakable language of the statute to avoid what it calls a perverse result. Ante, at 6. There is nothing perverse about the result that the statute commands, except that it contradicts pre-existing judge-made law, which it was precisely the purpose of the statute to change.
Respondent received a full hearing on his competency-to-be-executed claim in state court. The state court appointed experts and held a 4-day evidentiary hearing, after which it found respondent aware that he is to be punished for the crime of murder and aware that the impending punishment for that crime is death . App. 172. Respondent appealed this determination to the Supreme Court of Arizona, which accepted jurisdiction and denied relief. He sought certiorari of that denial in this Court, which also denied relief. To say that it is perverse to deny respondent a second round of time-consuming lower-federal-court review of his conviction and sentencebecause that means forgoing lower-federal-court review of a competency-to-be-executed claim that arises only after he has already sought federal habeas on other issuesis to say that state-court determinations must always be reviewable, not merely by this Court, but by federal district courts. That is indeed the principle that this Courts imaginative habeas-corpus jurisprudence had established, but it is not a principle of natural law. Lest we forget, Congress did not even have to create inferior federal courts, U.S. Const., Art. I, §8, cl. 9; Art. III, §1, let alone invest them with plenary habeas jurisdiction over state convictions. And for much of our history, as Justice Thomas points out, ante, at 5, prisoners convicted by validly constituted courts of general criminal jurisdiction had no recourse to habeas corpus relief at all. See Wright v. West, 505 U.S. 277, 285286 (1992) (opinion of Thomas, J.).
It seems to me much further removed from the perverse to deny second-time collateral federal review than it is to treat state-court proceedings as nothing more than a procedural prelude to federal lower-court review of state supreme-court determinations. The latter was the regime that our habeas jurisprudence established and that AEDPA intentionally revisedto require extraordinary showings before a state prisoner can take a second trip around the extended district-court-to-Supreme-Court federal track. It is wrong for us to reshape that revision on the very lathe of judge-made habeas jurisprudence it was designed to repair.
Todays opinion resembles nothing so much as the cases of the 1920s which effectively decided that the Clayton Act, designed to eliminate federal-court injunctions against union strikes and picketing, restrained the federal courts from nothing that was previously proper. T. Powell, The Supreme Courts Control Over the Issue of Injunctions in Labor Disputes, 13 Acad. of Pol. Sci. Proc. 37, 74 (1928). In criticizing those cases as examples of Gefü ;hlsjurisprudenz (and in insisting upon the necessity of preferring . . . the Gefü ;hl of the legislator to the Gefü ;hl of the judge), Dean Landis recalled Diceys trenchant observation that