Fierro v. Gomez

790 F. Supp. 972, 92 Daily Journal DAR 7121, 1992 U.S. Dist. LEXIS 6052, 1992 WL 86427

Opinions

ADDENDUM TO MEMORANDUM AND ORDER

PATEL, District Judge.

Subsequent to the filing of this court’s memorandum and order of April 18,1992, a three-judge panel of the Ninth Circuit vacated the temporary restraining order issued in the above memorandum. See Appendix A. Judge Noonan dissented. See Appendix B. Pursuant to the Ninth Circuit’s direction this court vacated the temporary restraining order. See Appendix C. One day after the execution of Robert Harris on April 21, 1992, Judges Alarcon and Brunetti recalled and vacated their writ of mandamus, and withdrew their opinion vacating this court’s temporary restraining order. See Appendix D.

Accordingly, the defendants shall file their answer to plaintiffs’ complaint within twenty (20) days of the date of this order and this. matter will be set down for a hearing on the preliminary injunction at a time to be agreed upon by the parties. The hearing date of April 28, 1992 is vacated as there is no immediacy for the hearing or reason why the temporary restraining order should not expire on April 28, 1992.

IT IS SO ORDERED.

APPENDIX A

FOR PUBLICATION

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

JAMES GOMEZ and DANIEL VASQUEZ Petitioners vs. THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA Respondent DAVID FIERRO, ROBERT HARRIS, and ALEJANDRO GILBERT RUIZ Real Parties in Interest

No. 92-70237 [Related to N.D.Cal. No. C-92-1482-MHP]

On Emergency Petition for Writ of Mandamus

Argued and submitted April 19, 1992, San Francisco, California

Filed April 20, 1992.

Opinion by Judge Alarcon

Before: ALARCON, BRUNETTI, and NOONAN, Circuit Judges.

ALARCON, Circuit Judge.

OPINION

On Friday, April 17, 1992, Robert Alton Harris, and two other condemned prisoners, filed two actions seeking to halt his execution scheduled for April 21, 1992. In this matter, Harris filed a civil rights action pursuant to Section 1983. He seeks a permanent injunction banning the use of lethal gas in the execution of a judgment by death. On the same date, Harris filed a petition for a writ of habeas corpus in the Supreme Court of California. In his habe-as corpus action he asked the California Supreme Court to issue a stay of execution. Harris did not claim in his petition before the California Supreme Court that the use

of lethal gas, in the execution of a judgment imposing the death penalty, violated the federal constitution. Since he was sentenced to death on March 6, 1979, Harris has filed five petitions for a writ of habeas corpus in the California Supreme Court. In none of them has he challenged the use of lethal gas to execute the trial court’s judgment.

On March 13, 1992, counsel for Harris appeared before the Superior Court of the State of California for the County of San Diego. On that date, the court issued an order that Robert Alton Harris should suffer the death penalty on April 21, 1992. No motion was made before the state trial court to prevent the Warden of the State Prison of the State of California, at San Quentin Prison from executing the judgment of the court by lethal gas. As noted above, no review has been sought before the California Supreme Court of the March 13, 1992, order that the warden “carry into effect the judgment of the court by putting to death the said Robert Alton Harris in the manner and means prescribed by law on the twenty-first day of April, 1992.” (Emphasis added.)

On Saturday evening, April 18, 1992, the district court issued a temporary restraining order enjoining James Gomez, the Director of the California Department of Corrections, and Daniel Vasquez, the Warden of the San Quentin Prison “from inflicting the punishment of death upon Plaintiffs or any class member by administration of lethal gas.”

Petitioners, James Gomez and Daniel Vasquez (hereinafter the “State”), seek an emergency writ of mandamus to the United States District Court for the Northern District of California. Petitioners request this court to vacate a Temporary Restraining Order issued on April 18, 1992, in the case of Fierro v. Gomez, 790 F.Supp. 906 (N.D.Cal.1992). The State contends that the district court lacked the jurisdiction to enjoin the execution of the state court’s judgment under the principles of federalism and comity first announced in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). We agree and grant the petition for a writ of mandamus, and vacate the temporary restraining order forthwith.

I.

Mandamus is an extraordinary remedy that may be used to challenge an otherwise unappealable order if the district court’s exercise of jurisdiction “was clearly erroneous as a matter of law.” See Bauman v. United States, 557 F.2d 650, 654-55 (9th Cir.1977). The State argues that the district court was required to dismiss the action under Younger v. Harris. In Younger v. Harris, the court held that federal courts “cannot interfere with state prosecutions.” Id. 401 U.S. at 44, 91 S.Ct. at 751, 27 L.Ed.2d at 675. The basis for the Younger Abstention Doctrine is contained in the following passage:

This underlying reason for restraining courts of equity from interfering with criminal prosecutions is reinforced by an even more vital consideration, the notion of “comity,” that is, á proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate state governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways. This, perhaps for lack of a better and clearer way to describe it, is referred to by many as “Our Federalism,” and one familiar with the profound debates that ushered our Federal Constitution into existence is bound to respect those who remain loyal to the ideals and dreams of “Our Federalism.” The concept does not mean blind deference to “States’ Rights” any more than it means centralization of control over every important issue in our National Government and its courts. The Framers rejected both these courses. What the concept does represent is a system in which there is sensitivity to the legitimate interests of both State and National Governments, and in which the National Government, anxious though it may be to vindicate and protect federal rights and federal interests, always endeavors to do so in ways that will not unduly interfere with the legitimate activities of the States. It should never be forgotten that this slogan, “Our Federalism,” born in the early struggling days of our Union of States, occupies a highly important place in our Nation’s history and its future.

Id. 401 U.S. at 44, 91 S.Ct. at 751, 27 L.Ed.2d at 675.

In Younger v. Harris, the plaintiff sought to restrain a pending state criminal prosecution. Id. 401 U.S. at 41, 91 S.Ct. at 749, 27 L.Ed.2d at 674. In Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975), the plaintiff in a civil rights action argued, inter alia, that the Younger Abstention Doctrine was inapplicable where the state proceedings are no longer pending. Id. 420 U.S. at 607, 95 S.Ct. at 1209, 43 L.Ed.2d at 494. In Huffman v. Pursue, no appeal was taken from the state court’s judgment.

The appellee in Huffman v. Pursue argued that “Younger ... does not govern this case because at the time the District Court acted there was no longer a pending state court proceeding.” Id. 420 U.S. at 607, 95 S.Ct. at 1209, 43 L.Ed.2d at 494. The Court rejected this argument stating:

[W]e believe a necessary concomitant of Younger is that a party in appellee’s position must exhaust his state appellate remedies before seeking relief in the District Court, unless he can bring himself within one of the exceptions specified in Younger.

Id. 420 U.S. at 607-08, 95 S.Ct. at 1209-10, 43 L.Ed.2d at 494-95.

As discussed above, Harris has failed to exhaust his state appellate remedies concerning the means of executing the trial court’s judgment. He has had access to the Supreme Court of California on his direct appeal, and on five successive state habeas corpus petitions. Had he raised this issue in state court, the decision of the Supreme Court of California on his federal constitutional claim could have been reviewed by the United States Supreme Court.

By failing to include this claim in the state habeas corpus proceedings, filed on the same date this civil rights action was filed in federal court, Harris has deliberately bypassed state review of his claim that execution by the injection of lethal gas is cruel and unusual punishment. This tactic is clearly violative of this nation’s policy that as a matter of comity and federalism, federal courts should not intervene in state court proceedings nor assume that state court judges will deny litigants their federal constitutional rights.

In Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 107 S.Ct. 1519, 95 L.Ed.2d 1 (1987), the appellant argued that no state court could hear his claims. Id. 481 U.S. at 14, 107 S.Ct. at 1527, 95 L.Ed.2d at 17. The Court responded to this argument as follows:

But the burden on this point rests on the federal plaintiff to show “that state procedural law barred presentation of [its] claims.” Moore v. Sims, 442 U.S. [415], at 432 [99 S.Ct. 2371 at 2381-82, 60 L.Ed.2d 994 (1979)]. See Younger v. Harris, 401 U.S., at 45 [91 S.Ct. at 751] (“ ‘The accused should first set up and rely upon his defense in the state courts, even though this involves a challenge of the validity of some statute, unless it plainly appears that this course would not afford adequate protection’ ”) (quoting Fenner v. Boykin, 271 U.S. 240, 244, 46 S.Ct. 492, 493, 70 L.Ed. 927 (1926)).

Id. 481 U.S. at 14-15, 107 S.Ct. at 1527-28, 95 L.Ed.2d at 17-18.

In a later passage the Court commented as follows:

[W]hen a litigant has not attempted to present his federal claims in related state court proceedings, a federal court should assume that state procedures will afford an adequate remedy, in the absence of unambiguous authority to the contrary.

Id. 481 U.S. at 15, 107 S.Ct. at 1528, 95 L.Ed.2d at 18.

As in Pennzoil Co. v. Texaco, Inc., in this matter, Harris did not attempt to present his federal claims in the state habe-as corpus proceedings he filed in the Su-

preme Court of California simultaneously with the filing of this section 1983 action. Under the Younger Abstention Doctrine, we must assume that the state habeas corpus procedures would have afforded Harris an adequate remedy. The Court concluded its analysis of the applicability of the Younger Abstention Doctrine in Pennzoil Co. v. Texaco, Inc. with the following comment:

Because Texaco apparently did not give the Texas courts an opportunity to adjudicate its constitutional claims, and because Texaco cannot demonstrate that the Texas courts were not then open to adjudicate its claims, there is no basis for concluding that the Texas law and procedures were so deficient that Younger abstention is inappropriate. Accordingly, we conclude that the District Court should have abstained.

Id. 481 U.S. at 17, 107 S.Ct. at 1529, 95 L.Ed.2d at 19.

Here, Harris has not given the California courts an opportunity to adjudicate his claim that the injection of lethal gas, in carrying out a sentence of death, violates the federal constitution. The district court was required to abstain. The district court clearly erred as a matter of law in granting a temporary restraining order in this matter.

III.

The April 18, 1992, order from the district court restraining and enjoining James Gomez and Daniel Vasquez from inflicting the punishment of death by the administration of lethal gas upon Robert Alton Harris, David Fierro, Albert Gilbert Ruiz, and any members of the purported class is VACATED. The mandate shall issue forthwith.

Judge Noonan dissents. He has indicated he will file a separate expression of his views.

COUNSEL

Dane R. Gillette, Esq., and Louis R. Ha-nouin, Esq., Deputies Attorneys General, State of California, San Francisco, California, for Petitioners.

Michael Laurence, Esq., American Civil Liberties Union Foundation of Northern California, San Francisco, California, for Real Parties in Interest.

APPENDIX B

Gomez and Vasquez v. Fierro, Harris, et al., No. 92-70237

Filed April 20, 1992