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No. 16-840
IN THE
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CHARLES L. RYAN, DIRECTOR, ARIZONA
DEPARTMENT OF CORRECTIONS,
Petitioner, v.
THEODORE WASHINGTON,
Respondent. _______________
On Petition for a Writ of Certiorari to the United States Court of Appeals
for the Ninth Circuit _______________
BRIEF OF AMICUS CURIAE ARIZONA VOICE FOR CRIME VICTIMS, INC.
IN SUPPORT OF PETITIONER _______________
STEVEN J. TWIST
ARIZONA VOICE FOR
CRIME VICTIMS, INC.
P.O. BOX 12722
SCOTTSDALE, AZ 85267
(480) 600-2661
JAMES C. HO
KYLE HAWKINS
Counsel of Record
BENJAMIN D. WILSON
GIBSON, DUNN & CRUTCHER LLP
2100 McKinney Avenue
Suite 1100
Dallas, TX 75201
(214) 698-3100
Counsel for Amicus Curiae
QUESTION PRESENTED
Does a district court have the authority to allow an untimely appeal to proceed by granting equitable relief under Federal Rule of Civil Procedure 60(b) for the sole purpose of circumventing the jurisdictional requirements of 28 U.S.C. § 2107 and Federal Rule of Appellate Procedure 4(a)?
ii
TABLE OF CONTENTS
Page
QUESTION PRESENTED ........................................... i
INTEREST OF AMICUS CURIAE ............................ 1
STATEMENT OF THE CASE .................................... 2
SUMMARY OF ARGUMENT ..................................... 4
ARGUMENT ............................................................... 5
I. Decades-Long Delays in Obtaining Justice Cause Harm to Victims of Violent Crime.................................................. 5
A. Research Demonstrates That Undue Delays in the Administration of Justice Harm Victims of Violent Crimes ........................ 5
B. Arizona Law and Federal Law Both Recognize the Costs of Undue Delay and Seek to Avoid Them ............... 8
II. The Ninth Circuit’s Decision Harms Crime Victims by Nullifying Bedrock Jurisdictional Rules Designed to Preclude Delay .............................................. 12
CONCLUSION .......................................................... 15
iii
TABLE OF AUTHORITIES
Page(s)
Federal Cases
Bowles v. Russell,
551 U.S. 205 (2007) .............................................. 12
Duncan v. Walker,
533 U.S. 167 (2001) .............................................. 10
United States v. Locke,
471 U.S. 84 (1985) ................................................ 13
Washington v. Ryan,
No. 07-15536 (9th Cir. 2016) ................................. 4
Washington v. Ryan,
No. CV-95-2460 (D. Ariz. 2013) ............................. 2
Woodford v. Garceau,
538 U.S. 202 (2003) ................................................ 9
State Cases
State v. Dixon,
250 P.3d 1174 (2011) .............................................. 9
State v. Robinson,
796 P.2d 853 (1990) ................................................ 2
Federal Statutes
18 U.S.C. § 3771 ........................................................ 11
28 U.S.C. § 2244(d) ...................................................... 9
28 U.S.C. § 2244(b) ...................................................... 9
Rules
Fed. R. Civ. P. 60(c)(1) ............................................... 13
iv
Constitutional Provisions
Ariz. Const. art. II, § 2.1(A) ........................................ 9
Ariz. Const. art. II, § 2.1(C) ........................................ 9
Other Authorities
104 Cong. 3 (1996) (statement of Senator
Orrin Hatch, Chairman, S. Comm. On
the Judiciary) ....................................................... 10
142 CONG. REC. H3606 (daily ed. Apr. 18,
1996) (statement of Rep. Henry Hyde) ............... 10
142 CONG. REC. S3471 (daily ed. Apr. 17,
1996) (statement of Sen. Arlen Specter) ............. 10
150 CONG. REC. 7296 (2004) (statement of
Sen. Dianne Feinstein) ........................................ 11
150 CONG. REC. 7298 (statement of Sen. Jon
Kyl) ....................................................................... 11
Dan S. Levy, Balancing the Scales of
Justice, 89 JUDICATURE 289 (2006) ....................... 8
Dean G. Kilpatrick & Ron Acierno, Mental
Health Needs of Crime Victims:
Epidemiology and Outcomes, 16 J.
TRAUM. STRESS 119 (2003) ..................................... 6
Gessner H. Harrison, The Good, The Bad,
and The Ugly: Arizona’s Courts and the
Crime Victims’ Bill of Rights, 34 ARIZ.
ST. L.J. 531 (2002) .................................................. 9
H.R. Conf. Rep. No. 104-518 (1996) .......................... 10
Hearing on S. 623 Before the S. Comm. on
the Judiciary, 104th Cong. 3 (1996) .................... 10
v
Jim Parsons & Tiffany Bergin, The Impact
of Criminal Justice Involvement on
Victims’ Mental Health, 23 J. TRAUM.
STRESS 182 (2010) .............................................. 6, 7
Judith Lewis Herman, The Mental Health
of Crime Victims: Impact of Legal
Intervention, 16 J. TRAUM. STRESS 159
(2003) ...................................................................... 7
Mary Beth Ricke, Victims’ Right to a Speedy
Trial: Shortcomings, Improvements, and
Alternatives to Legislative Protection, 41
WASH. U. J. L. & POL’Y 181 (2013) ......................... 6
Paul G. Cassell, Crime Victims’ Rights
During Criminal Investigations?, 104 J.
CRIM. LAW AND CRIMINOLOGY 59 (2014) .............. 11
President Bill Clinton, Statement on
Signing the Antiterrorism and Effective
Death Penalty Act of 1996 (Apr.
24,1996), in 32 Wkly. Comp. Pres. Doc.
719 (Apr. 29, 1996) ............................................... 10
Ulrich Orth & Andreas Maercker, Do Trials
of Perpetrators Retraumatize Victims?,
19 J. INTERPERSONAL VIOLENCE 212
(2004) ...................................................................... 7
BRIEF FOR AMICUS CURIAE
IN SUPPORT OF PETITIONER
INTEREST OF AMICUS CURIAE*
Arizona Voice for Crime Victims, Inc. (“AVCV”) is
an Arizona nonprofit corporation that works to pro-
mote and protect crime victims’ interests throughout
the criminal justice process. To achieve these goals,
AVCV empowers victims of crime through legal ad-
vocacy and social services. AVCV also provides con-
tinuing legal education to the judiciary, lawyers, and
law enforcement.
AVCV seeks to foster a fair justice system which
(1) provides crime victims with resources and infor-
mation to help them seek immediate crisis interven-
tion; (2) informs crime victims of their rights under
the laws of the United States and Arizona; (3) en-
sures that crime victims fully understand those
rights; and (4) promotes meaningful ways for crime
victims to enforce their rights, including through di-
rect legal representation. A key part of AVCV’s mis-
sion is giving the judiciary information and policy
insights that may be helpful in the difficult task of
balancing an accused’s constitutional rights with the
* Pursuant to Supreme Court Rule 37.6, amicus represents
that this brief was not authored in whole or in part by any par-
ty or counsel for any party. No person or party other than ami-
cus, its members, or its counsel made a monetary contribution
to the preparation or submission of this brief. Counsel of record
for all parties received notice of the filing of this brief in compli-
ance with Supreme Court Rule 37.2 and each has consented to
the filing of this brief.
2
crime victim’s right to reasonable finality, while also
protecting the wider community’s need for deter-
rence.
STATEMENT OF THE CASE
Amicus offers this abbreviated Statement of the Case to highlight the numerous delays that have prevented Respondent Theodore Washington’s con-viction from becoming final nearly 30 years after the murder, attempted murder, and robbery constituting the underlying offenses took place, and over 20 years after his conviction became final in state court.
On June 8, 1987, Washington brutally murdered Sterleen Hills. Washington shot Mrs. Hills “at close range with a 12 gauge shotgun.” App. at 136. He also shot Ralph Hills, Sterleen’s husband, at point-blank range, leaving Mr. Hills with “massive inju-ries” that he miraculously managed to survive. Ibid. After killing Mrs. Hills and leaving Mr. Hills for dead, Washington robbed their home. He stole “[a] cigarette lighter holder, a watch, and a locked box containing a gold watch and coins.” Ibid. He was apprehended three days later.
A jury convicted Washington and his co-defendants in December 1987, App. at 139, and he was sentenced to death. The Arizona Supreme Court affirmed Washington’s conviction on direct appeal in June 1990. See State v. Robinson, 796 P.2d 853, 865 (1990). Washington’s state post-conviction review concluded when the Arizona Supreme Court sum-marily denied his petition for review in April 1995—some five years after the intermediate appellate court affirmed Washington’s conviction. App. at 142. Washington filed his federal habeas petition in No-vember 1995. See D. Ct. Dkt. No. 1, Washington v. Ryan, No. CV-95-2460 (D. Ariz. 2013).
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The district court took almost a full decade to ad-judicate Washington’s habeas petition. Over that time, Washington took nearly two years to file an amended habeas petition. See D. Ct. Dkt. No. 20. He further engaged in voluminous motions prac-tice—including attempting to file multiple amend-ments to his amended habeas petition, attempting to have the case stayed on multiple occasions, and re-peatedly requesting extensions of time. See D. Ct. Dkt. Nos. 12, 15, 17, 19–20, 26, 36, 40, 58, 61, 69, 74, 75, 78, 90, 104, 151. This bevy of motions, the vast majority of which were ultimately denied, literally took years to resolve.
After the district court finally denied Washing-ton’s habeas petition—in 2005, ten years after he first filed his petition—Washington missed the juris-dictional deadline to file his notice of appeal. So he sought to exploit what he thought was a loophole in Rule 60(b). Pursuant to that rule, he asked the dis-trict court to vacate and reinstate its judgment solely to make Washington’s appeal timely. The district court properly denied that motion, and Washington appealed.
At that point, appellate review ground to an ab-solute halt. Nothing happened in this case during the three-year period from September 2007 until Ju-ly 2010. Finally, five years after the district court first denied the habeas petition, the Ninth Circuit issued a briefing schedule. And as soon as that schedule issued, Washington immediately sought to continue to delay those proceedings. He filed three successive requests for extensions of time to file his opening brief and a request to file an oversized brief, all of which were granted.1 See Ct. App. Dkt. Nos.
1 That briefing, of course, related largely to the procedural
issues addressed by the Ninth Circuit and raised in the Petition
4
16, 18, 20, 23. Washington v. Ryan, No. 07-15536 (9th Cir. 2016).
The Ninth Circuit affirmed in part and dismissed in part Washington’s appeal from denial of his Rule 60(b) motion in June 2015. See App. at 9. The court of appeals vacated the panel opinion and agreed to rehear the case en banc. That was in December 2015, fully 20 years after Washington first filed his habeas petition. See App. 34.
Eight months later, the en banc court issued its decision reversing the district court’s denial of Wash-ington’s Rule 60(b) motion. See ibid. The Ninth Cir-cuit ordered the district court to vacate and reenter its initial judgment denying Washington’s petition for a writ of habeas corpus solely for the purpose of avoiding jurisdictional deadlines. See ibid. A peti-tion for a writ of certiorari followed.
Nearly 30 years after Washington murdered Sterleen Hills and attempted to murder Ralph Hills while robbing their home, and over 29 years after an Arizona court sentenced Washington to death, his post-conviction attack remains in procedural limbo while his victims await justice.
SUMMARY OF ARGUMENT
Violent crime extracts an unspeakably cruel toll on its victims. But the crime itself is merely the be-ginning of the harm those victims and their families suffer. Indeed, victims’ suffering is compounded and exacerbated by long delays between the commission
[Footnote continued from previous page]
for a Writ of Certiorari before this Court, and not to the ulti-
mate constitutionality of Washington’s conviction. All told, a
review of the lower courts’ docket sheets reveals that Washing-
ton has received over one year’s worth of deadline extensions
alone.
5
of the crime and the imposition of punishment. The enormous delays between Washington’s murder of Mrs. Hills and the proper execution of Washington’s sentence have already wrought great harm. Indeed, as academic literature, the Arizona State Constitu-tion, and federal laws recognize, this delay of over 30 years between the commission of a heinous crime to the imposition of justice itself injures victims of vio-lent crime, independent of the initial crime.
The Ninth Circuit’s erroneous decision below—which held that the district court abused its discre-tion by refusing to engage in procedural gamesman-ship in order to excuse a missed jurisdictional dead-line—promises additional years of delay. Indeed, unless this Court intervenes, Rule 4(a)’s jurisdiction-al time bar will become an obsolete relic, and crimi-nals will have yet another tool to frustrate the impo-sition of their sentences and further deny justice to their victims.
Accordingly, amicus urges the Court to grant the petition for a writ of certiorari and reverse the judg-ment of the court of appeals.
ARGUMENT
I. DECADES-LONG DELAYS IN OBTAINING
JUSTICE CAUSE HARM TO VICTIMS OF
VIOLENT CRIME
Both academic research and substantive law rec-ognize the harm that long delays in obtaining justice cause to victims of violent crime.
A. Research Demonstrates That Undue
Delays in the Administration of Justice
Harm Victims of Violent Crimes
Everyone understands the direct physical harm that violent crime causes its victims. But what courts frequently overlook is the ways in which de-
6
layed judicial proceedings compound that harm and add to the psychological injury victims suffer.
The harm begins with the violent crime itself, and it takes two forms: physical and psychological. While the physical harm resulting from violent crime is usually obvious and easy to assess, psychological damage is often more complex yet more pernicious. For example, Post-traumatic Stress Disorder (“PTSD”) is a commonly documented consequence of violent crime. See Jim Parsons & Tiffany Bergin, The Impact of Criminal Justice Involvement on Vic-tims’ Mental Health, 23 J. TRAUM. STRESS 182, 182 (2010); Dean G. Kilpatrick & Ron Acierno, Mental Health Needs of Crime Victims: Epidemiology and Outcomes, 16 J. TRAUM. STRESS 119, 119 (2003). PTSD may appear both in those who have been di-rectly victimized by a crime and those indirectly harmed, such as family members and friends of hom-icide victims. Kilpatrick & Acierno, Mental Health Needs of Crime Victims: Epidemiology and Outcomes, 16 J. TRAUM. STRESS at 125–27 (2003). Studies also suggest a connection between initial victimization and later depression, substance abuse, panic disor-der, agoraphobia, social phobia, obsessive-compulsive disorder, and even suicide. Parsons & Bergin, The Impact of Criminal Justice Involvement on Victims’ Mental Health, 23 J. TRAUM. STRESS at 182.
Those initial psychological injuries are com-pounded by a prolonged adjudicative process. In-deed, a “common problem in the prosecution of crimes against victims is that the trial is typically delayed through scheduling conflicts, continuances, and other unexpected delays throughout the course of the trial.” Mary Beth Ricke, Victims’ Right to a Speedy Trial: Shortcomings, Improvements, and Al-ternatives to Legislative Protection, 41 WASH. U. J. L. & POL’Y 181, 183 (2013). “Victims of the crimes are already heightened emotionally with anxiety and an-
7
ticipation of the impending trial, and these delays lead to further and unnecessary trauma.” Ibid. It thus is not surprising that “multiple studies” demon-strate “the negative effect on a victim’s healing pro-cess when there is a prolonged trial of the alleged at-tacker because the actual judicial process is a burden on the victim.” Id. at 193. And “[t]he long delay be-tween reporting a crime to the police and the begin-ning of the trial represents [a] source of psychological stress for crime victims.” Ulrich Orth & Andreas Maercker, Do Trials of Perpetrators Retraumatize Victims?, 19 J. INTERPERSONAL VIOLENCE 212, 215 (2004). As Candace Lightner, the founder of Mothers Against Drunk Driving, once remarked: “Victims don’t want vengeance, they want healing. But there is no healing until justice is done.”2
It thus is no surprise that abundant academic literature confirms the ways in which extended in-teraction with the criminal justice system com-pounds the initial effects of violent crime on a victim. See id. at 182-183; see also Judith Lewis Herman, The Mental Health of Crime Victims: Impact of Legal Intervention, 16 J. TRAUM. STRESS 159, 159 (2003). A victim’s experience with the justice system often “means the difference between a healing experience and one that exacerbates the initial trauma.” Par-sons & Bergin, The Impact of Criminal Justice In-volvement on Victims’ Mental Health, 23 J. TRAUM. STRESS at 182. For example, one study examining the effect of offender punishment on crime victim re-covery found that most victims experienced improved recovery when there was an increased perceived pun-ishment of the offender. Dr. Joel H. Hammer, The Effect of Offender Punishment on Crime Victims’ Re-
2 Ms. Lightner made this remark in August, 1990, in a
speech at the Arizona state capitol grounds.
8
covery and Perceived Fairness (Equity) and Process Control, University Microfilms International 87, Ann Arbor, MI (1989). Similarly, where offenders accept-ed plea bargains, the victims experienced greater re-covery because of the absence of extended delays. Ibid.
The harm caused by drawn-out judicial proceed-ings is especially acute in cases involving capital punishment, such as this one, where the delay be-tween the initial sentencing and the finality has stretched decades. Delay in death penalty cases means that “[c]hildren who were infants when their loved ones were murdered are now, as adults, still dealing with the complexities of the criminal justice system.” Dan S. Levy, Balancing the Scales of Jus-tice, 89 JUDICATURE 289, 290 (2006). “The automatic appeals, and often repeated appeals,” in a death pen-alty case “are continually brutal on victim family members.” Id. at 2–3. “Year after year, survivors summon the strength to go to court, schedule time off work, and relive the murder of their loved ones over and over again . . . . The years of delay exact an enormous physical, emotional, and financial toll.” Ibid.
In sum, delays throughout the criminal justice system have profound negative effects on crime vic-tims and their families, and those effects serve only to compound the already grievous mental harm in-flicted directly by the criminal.
B. Arizona Law and Federal Law Both
Recognize the Costs of Undue Delay
and Seek to Avoid Them
Against that backdrop, it is no wonder that states such as Arizona seek to minimize these harms by enshrining in their founding charters robust pro-tections for victims of violent crime.
9
Arizona’s state constitution “provide[s] Arizona crime victims with specific procedural and substan-tive rights” to protect them from the traumatic ef-fects of judicial delays. Gessner H. Harrison, The Good, The Bad, and The Ugly: Arizona’s Courts and the Crime Victims’ Bill of Rights, 34 ARIZ. ST. L.J. 531, 531–32 (2002). These provisions, enacted by voter referendum in 1990, are intended to “preserve and protect victims’ rights to justice and due pro-cess.” ARIZ. CONST. ART. II, § 2.1(A). Moreover, in the case of murder, these rights are explicitly con-ferred on the victim’s spouse, parent, or child. Id. at § 2.1(C). Not only do the direct victims of crimes have rights under the Arizona Constitution, so too do their families.
Most relevant here, the Arizona Constitution specifically protects crime victims from undue delay, providing the “right to a speedy trial or disposition and prompt and final conclusion of the case after conviction and sentence.” ARIZ. CONST. ART. II, § 2.1(A)(10). That is, under Arizona law, courts must consider the crime victim’s rights to finality in pro-ceedings. See State v. Dixon, 250 P.3d 1174, 1184 (2011). Thus, Arizona law explicitly recognizes the harm that undue delay causes to victims of violent crimes and their families and enshrines protection against those harms in the state’s constitution.
Federal law likewise recognizes the necessity of avoiding undue delay in capital cases. Although this case was decided before its passage, the Antiterror-ism and Effective Death Penalty Act of 1996 (AEDPA) expressly recognizes the negative effects of undue delay, especially in capital cases. See, e.g., 28 U.S.C. § 2244(d)(1) (imposing one-year statute of lim-itations on habeas petitions); see id. § 2244(b)(1) (barring second or successive habeas petitions); see also Woodford v. Garceau, 538 U.S. 202, 206 (2003) (“Congress enacted AEDPA to reduce delays in the
10
execution of state and federal criminal sentences, particularly in capital cases.”); Duncan v. Walker, 533 U.S. 167, 179 (2001) (“The 1-year limitation pe-riod of § 2244(d)(1) quite plainly serves the well-recognized interest in the finality of state court judgments . . . [and] reduces the potential for delay on the road to finality by restricting the time that a prospective federal habeas petitioner has in which to seek federal habeas review.”).
In addition to AEDPA’s text, its legislative histo-ry makes clear that the law was intended to avoid unnecessary delay in capital cases. The Conference Committee report explains that AEDPA was ex-pected “to address the acute problems of unnecessary delay and abuse in capital cases.” H.R. Conf. Rep. No. 104-518 (1996); see also 142 CONG. REC. S. 3471 (daily ed. Apr. 17, 1996) (statement of Sen. Arlen Specter) (noting “periods of lengthy delay in carrying out death sentences”); 142 CONG. REC. H. 3606 (daily ed. Apr. 18, 1996) (statement of Rep. Henry Hyde) (“[I]n death penalty cases, it normally takes 8 years to exhaust the appeals. It is ridiculous, 8 years is ri-diculous; 15 and 17 years is even more so.”); Hearing on S. 623 Before the S. Comm. on the Judiciary, 104th Cong. 3 (1996) (remarks of Sen. Orrin Hatch, Chairman, S. Comm. on the Judiciary) (goal of AEDPA to “eliminate unnecessary delay,” “main-tain[] . . . the finality of the decisions of our State courts,” and “get some effective resolution of the . . . lengthy frivolous appeal problems.”). Indeed, Presi-dent Bill Clinton recognized as much when he signed AEDPA into law. See, e.g., President Bill Clinton, Statement on Signing the Antiterrorism and Effec-tive Death Penalty Act of 1996 (Apr. 24, 1996), in 32 Wkly. Comp. Pres. Doc. 719 (Apr. 29, 1996) (“For too long, and in too many cases, endless death row ap-peals have stood in the way of justice being served.”).
11
The Crime Victims’ Rights Act of 2004 (CVRA) further confirms Congress’ intent to combat delays in criminal proceedings. See 18 U.S.C. § 3771 et seq. Its core provision confers on victims “[t]he right to proceedings free from unreasonable delay.” Id. § 3771(a)(7). And three other subsections confer on crime victims the rights to “timely notice,” “timely restitution,” and “timely” information regarding plea bargains. Id. §§ 3771(a)(2), 3771(a)(6), 3771(a)(9). Congress’ clear language demonstrates that timing matters. Indeed, the right to be free from unreason-able delay expressly applies to victims and their fam-ilies in all “[f]ederal habeas corpus proceeding[s] arising out of a State conviction.” Id. § 3771(b)(2).
The CVRA drafting history further confirms Congress’ desire to protect victims from delay and other harms adverse to their interests. Sen. Dianne Feinstein, a CVRA sponsor, explained the need for the legislation as follows: “In case after case we found victims, and their families, were ignored, cast aside, and treated as non-participants in a critical event in their lives.” 150 CONG. REC. 7296 (2004) (statement of Sen. Dianne Feinstein). The CVRA guaranteed that victims would no longer be “ig-nored,” but instead would be guaranteed “a role in the criminal justice process” as “independent partici-pant[s].” See Paul G. Cassell, Crime Victims’ Rights During Criminal Investigations?, 104 J. CRIM. LAW
AND CRIMINOLOGY 59, 66-67 (2014). Rather than be “thrown into a system . . . which literally prevented them from participation in any meaningful way,” vic-tims’ interests instead would become a central com-ponent of criminal cases. See 150 CONG. REC. 7298 (statement of Sen. Jon Kyl).
Judicial decisions that enhance the opportunity for and likelihood of delay thus not only compound the harm crime victims have already suffered, but they also work contrary to state and federal public
12
policy. They offend the principles driving Arizona’s foundational charter, and they frustrate the will of Congress set out in both AEDPA and the CVRA.
II. THE NINTH CIRCUIT’S DECISION HARMS
CRIME VICTIMS BY NULLIFYING BEDROCK
JURISDICTIONAL RULES DESIGNED TO
PRECLUDE DELAY
The Petition for a Writ of Certiorari in this case explains in detail why the 30-day time limit set out in 28 U.S.C. § 2107 is jurisdictional and immune to so-called equitable exceptions. Petitioner is correct: Section 2107 provides that “no appeal shall bring any judgment, order or decree in an action, suit or pro-ceeding of a civil nature before a court of appeals for review unless notice of appeal is filed, within thirty days after the entry of such judgment, order or de-cree.” And Federal Rule of Appellate Procedure 4(a) likewise requires that the “notice of appeal . . . be filed within 30 days after entry of the judgment or order appealed from.” As Petitioner ably demon-strates, that language divests an appellate court of jurisdiction over an untimely appeal. See Bowles v. Russell, 551 U.S. 205 (2007).
By permitting, and indeed requiring, the district court to allow Washington to circumvent that juris-dictional limit by vacating and reentering its judg-ment pursuant to Rule 60(b), the Ninth Circuit effec-tively obviated these deadlines. As Judge Bybee’s dissent points out, and as this Court has previously recognized, the error committed in this case is in no way extraordinary. “There really is nothing extraor-dinary about attorneys miscalculating filing dead-lines—even by one day. It happens all the time.” App. at 47 (collecting cases). And “[i]f 1-day late fil-ings are acceptable, 10-day late filings might be equally acceptable, and so on in a cascade of excep-
13
tions that would engulf the rule erected by the filing deadline. . . . [I]f the concept of a filing deadline is to have any content, the deadline must be enforced.” United States v. Locke, 471 U.S. 84, 100–01 (1985).
But obviating jurisdictional deadlines carries se-rious consequences for crime victims by further pro-longing their suffering. Instead of bringing about the finality Congress mandated when it enacted Section 2107, the Ninth Circuit’s decision creates a new front for procedural gamesmanship—one that will render incalculable harm on crime victims. See supra Part I.
The effect of the Ninth Circuit’s decision is this: there is essentially no deadline to file a notice of ap-peal in a habeas case (or perhaps any other case). After all, Rule 60(b) requires that motions be filed within “a reasonable time.” See Fed. R. Civ. P. 60(c)(1). Certain Rule 60(b) motions must be filed “no more than a year after the entry of the judgment or order or the date of the proceeding.” See ibid. But a district court can grant a motion under Rule 60(b) for “any other reason that justifies relief” outside of the one-year limit contained in Rule 60(c)(1).3
The majority opinion’s only limitation is that the case be “exceptional,” App. at 11, “extraordinary,” id. at 24, or within “a narrow band of cases.” Id. at 10. But filing a notice of appeal three days late (and then failing to recognize that error) is neither exceptional nor extraordinary, and thus, the Ninth Circuit’s sup-posed limitations are none at all. They are instead blanket grants of authority to district courts to dis-regard the Federal Rules and Section 2107 on the thinnest of reasons.
3 The Ninth Circuit’s opinion expressly recognizes that Rule
60(c) provided Washington with an alternative avenue for re-
lief. See App. at 28–32.
14
The results for crime victims are all too predicta-ble. As set out above, delay compounds and exacer-bates the direct physical and mental anguish that the criminal has already inflicted. Yet the decision below guarantees more delay—not only for Washing-ton’s victims, but for victims throughout the Ninth Circuit. This Court should halt this unconscionable practice immediately, before those who have already suffered the most are forced to relive and prolong the harm they have been forced to endure for too long.
15
CONCLUSION
For the foregoing reasons, the petition should be
granted.
Respectfully submitted.
STEVEN J. TWIST ARIZONA VOICE FOR
CRIME VICTIMS, INC. P.O. BOX 12722 SCOTTSDALE, AZ 85267 (480) 600-2661
JAMES C. HO KYLE HAWKINS Counsel of Record BENJAMIN D. WILSON GIBSON, DUNN & CRUTCHER
2100 McKinney Avenue Suite 1100 Dallas, TX 75201 (214) 698-3100 [email protected]
Counsel for Amicus Curiae
February 2, 2017
