William H. Rehnquist: We'll hear argument first this morning in Number 95-5015, Larry Lonchar v. Albert Thomas. Mr. Verrilli.
Donald B. Verrilli, Jr.: Mr. Chief Justice, and may it please the Court: This case is about the standards that govern a Federal court's decision whether to entertain a first Federal habeas corpus petition. The issue arises in an anomalous factual context. The record is clear that petitioner Larry Lonchar, though found competent, is a deeply disturbed person with suicidal impulses. That mental illness led him to resist efforts by his siblings to challenge his conviction and death sentence in next friend habeas corpus proceedings. He has not been entirely consistent, however.
William H. Rehnquist: Well, are you suggesting that one would have to be mentally ill in order to resist efforts to challenge the appeal, to appeal your case?
Donald B. Verrilli, Jr.: Not in every instance, Mr. Chief Justice, but in this instance, yes. His mental illness is one that produces and has been documented as producing serious suicidal impulses and that, we think, is the principal reason, and the record shows it's the principal reason that it's led to his resistance of those efforts.
Sandra Day O'Connor: Mr. Verrilli, do we take this case on the assumption, as the... I guess it's the Eleventh Circuit found, that the petitioner is seeking Federal habeas for purposes of delaying his execution and not to vindicate any constitutional right he might have?
Donald B. Verrilli, Jr.: There is a factual finding to that effect--
Donald B. Verrilli, Jr.: To that effect.
Donald B. Verrilli, Jr.: --Justice O'Connor, yes.
Sandra Day O'Connor: And so do we take the case on that assumption?
Donald B. Verrilli, Jr.: No, Justice O'Connor. In our--
Sandra Day O'Connor: And why not?
Donald B. Verrilli, Jr.: --In our view, Justice O'Connor, the record shows that the district court found both that Lonchar seeks, genuinely seeks to pursue these claims, and that his motive for doing so is solely to achieve delay. In our view, those are irreconcilable. However, it should not matter as a matter of law, even if the Court does take the case with that finding unchanged, because our position is that Lonchar's motivation, subjective motivation for filing a first Federal habeas petition should be irrelevant as a matter of law. It should not be the subject of inquiry in this case, as it is not in civil litigation generally.
Sandra Day O'Connor: Well, I suppose, though, that you do acknowledge that habeas is an equitable remedy.
Donald B. Verrilli, Jr.: We do, Justice O'Connor, yes.
Sandra Day O'Connor: And are we limited to what Rule 9 provides in that regard as to delay in filing, or could conceivably equitable considerations allow a Federal court to deny even a first Federal habeas?
Donald B. Verrilli, Jr.: Justice O'Connor, I think there are two separate issues woven together there, and if you'll permit me--
Sandra Day O'Connor: Sure.
Donald B. Verrilli, Jr.: --let me to try to separate them.
Sandra Day O'Connor: Fine.
Donald B. Verrilli, Jr.: The first is the passage of time up to the point in June of 1995 when Lonchar's Federal habeas petition, the petition at issue here, was filed. Our view about that is that Rule 9(a) governs the analysis of that issue. There's a second issue here about Lonchar's subjective motive for filing as of June 1995. Our position there is that subjective motive should not be a subject of inquiry. If it's a substantial petition, an objectively substantial petition, then it ought to be treated just like a petition for relief in any other kind of case.
William H. Rehnquist: Well, Mr. Verrilli, what if the motive is, you know, to really make a laughing stock out of the Federal courts.
Donald B. Verrilli, Jr.: Your Honor, that's a serious question here. I understand that.
William H. Rehnquist: Well, take it just as a hypothetical, not necessarily this case, but you're saying motive is immaterial. What if a first habeas petitioner says, I think I've got some good claims here, but I really don't care what the court does, I really just want to make fools of these judges.
Donald B. Verrilli, Jr.: I think, Your Honor, if there are substantial claims on the merits, and it's a first petition, that they must be adjudicated. The only reason that motive was injected into the inquiry here was because the district judge put Mr. Lonchar on the stand and asked him what his motives were. Our view is, that's not a proper subject of inquiry. If there's a verification on record, as there was on this case, signed under penalty of perjury pursuant to Habeas Rule 2, that the petitioner genuinely wishes to pursue the claim for relief, that should be the end of the matter.
Ruth Bader Ginsburg: But if the petition on its face shows that it's frivolous and/or malicious, it could be dismissed.
Donald B. Verrilli, Jr.: Very definitely, Justice Ginsburg. That's right in the habeas rules. If there's no substantial claim for relief, the petition may be dismissed on its face, but here there are very substantial claims for relief, and there's no doubt about that, and when substantial claim for relief is alleged, as it was here, this case, a first Federal habeas petition, should be treated just like an antitrust case, a labor case, a civil case generally under Rule 11, and pursued on the merits.
Ruth Bader Ginsburg: Well, do you think-- --Mr. Verrilli-- --Do you think that there's any ground, other than what's stated in 9(a) and (b)... let's assume there's no prejudice to the State in that it can answer the petition, and that it's a first Federal habeas, do you see any room at all or a Federal court to dismiss the petition outside of the specifications of 9(a) and (b)?
Donald B. Verrilli, Jr.: There may be a very, very limited and narrowly circumscribed discretion to do so, Your Honor. It is not our position that Rule 9(a) and Rule 9(b) codify and thereby exhausts completely the limits of a court's discretion. However, that discretion in our view must be very narrowly circumscribed.
Ruth Bader Ginsburg: Can you give me a concrete example--
Donald B. Verrilli, Jr.: Well--
Ruth Bader Ginsburg: --of what such a case would be?
Donald B. Verrilli, Jr.: --there... the traditional equitable doctrine of unclean hands is the only additional equitable principle that I think is not already encompassed within 9(a) that might be brought to bear here.
Anthony M. Kennedy: Well, is 9(a) an exclusive statement of the doctrine of laches?
Donald B. Verrilli, Jr.: Our view, Justice Kennedy, is that it is definitely an exclusive statement of the doctrine of laches. It codified the common law doctrine of laches as it applied to habeas. This Court has said repeatedly and most recently in the Brecht v. Abrahamson case that in habeas the only laches recognized are those which prejudice the State's ability to defend the petition.
David H. Souter: Well, would you take that so far as to cover a case in which the prisoner in effect requested various next friends to file next friend petitions in bad faith, knowing perfectly well that he was competent, and to do so solely for the repeatedly delaying the execution date? Would you say that Rule 9(a)... and in each case, the State's capacity to defend on the merits, if any of these requests for relief reached the merit stage, would not in any way be compromised. Would you say, in a case like that, that Rule 9(a) precluded an equitable consideration of that bad faith that he had participated in?
Donald B. Verrilli, Jr.: No, Justice Souter, and that's why, in response to Justice Ginsburg, I indicated that I thought there was some narrow room for the traditional equitable principle of unclean hands to operate even beyond 9(a).
David H. Souter: How is that consistent with your... maybe I didn't understand what you said. How is that consistent with your answer that 9(a) exhausts the concept of laches?
Donald B. Verrilli, Jr.: Because, Justice Souter, laches is about delay and the consequences of delay. Bad faith seems to me to be a separate inquiry. Bad faith--
Anthony M. Kennedy: But suppose the State were to show that the evidence were stale, and it would be more difficult for the State to prevail on retrial. That's beyond the wording of 9(a) as I understand 9(a), because 9(a) talks about the ability to respond to the petition. Let's assume the State can completely respond to the petition on, say, ineffectiveness of counsel, but that the evidence will be very, very stale, and the State will have a much more difficult time prevailing. That's not part of laches?
Donald B. Verrilli, Jr.: --That's correct, Justice Kennedy. Indeed, that is precisely the holding of this Court in 1986 in Vasquez v. Hillery. That was exactly the issue, whether that kind of prejudice could be recognized and held against a petitioner in habeas. The holding of the Court in Vasquez was that it could not, that Congress recognized only laches in the sense of difficulty in defending the petition, that different kind of prejudice was not cognizable in laches as applied in habeas. That was the specific holding of that case.
David H. Souter: Mr. Verrilli, may I go back to the earlier point about the finding that he had taken the action he had solely for purposes of delay. I don't want to argue your case for you, but it seems to me there's another point to be made. You tell me if I'm wrong. Usually when we talk about or when we condemn an application as being made solely for delay, the implication is that it really is not made with a belief in the merits asserted, that it is either in bad faith or it's on the verge of bad faith, and that it's explicable only as a device to postpone an execution. In this case, as I understand it, the finding of delay was made on the understanding that he wanted to preserve his life long enough to see a change in the method of execution so that he could donate his vital organs to... I don't know, to science, or an organ bank, or something or other. That isn't delay in sort of the classic sense that has been condemned, is it? In other words, a person... if I want to preserve my life, I can then give it away, or throw it away, or do anything I want to with it if I succeed, and that's what your client wants to do, isn't it?
Donald B. Verrilli, Jr.: Justice Souter, you've put it beautifully. That is exactly our argument, that the delay that is at issue with respect to the period from June '95 forward has to be analyzed as a question of whether it's unwarranted delay, whether it's delay that would not normally have occurred in the normal course of adjudicating a substantial petition, raising substantial claims with a petitioner who has a good faith belief in the substantiality of his claim, and that's what we have--
David H. Souter: So you can that in terms of our usual terminology there really isn't any contradiction between the two findings that you've pointed out of the lower court in this case.
Donald B. Verrilli, Jr.: --That's precisely right, Justice Souter.
William H. Rehnquist: Mr. Verrilli, I thought a moment ago you said they were inherently contradictory.
Donald B. Verrilli, Jr.: If one reads them as I understood Justice O'Connor to have been reading them I think they are contradictory, but what I tried to suggest is that the two can coexist in the sense that, as the facts here show, a person can have a substantial claim, can have a good faith belief in the substantiality of the claim, and can nonetheless be pursuing it for purposes that are other than the purpose of achieving substantive relief, and that's why we think there just shouldn't be an inquiry on a substantial first Federal habeas petition into that issue.
Antonin Scalia: It's strange that that shouldn't be considered by an equity court when even in civil law, if you pursue a right that is a genuine right, but you pursue it solely for the purpose of harassment, that's actionable.
Donald B. Verrilli, Jr.: Well, I take it Your Honor is referring to the tort of abuse of process.
Donald B. Verrilli, Jr.: Yes.
Donald B. Verrilli, Jr.: Well, I think that there are significant differences here. As Your Honor described that abuse of process tort in the Hecht case two terms ago, it applies in a very narrow circumstance, not just when a civil case is filed for purposes of harassment, but only when there is the equivalent of what would I think in the equity context be considered bad faith, or unclean hands. It's got to be a very serious effort to achieve coercion or extortion through use of the civil process. And I would also note, Your Honor, that with respect to abuse of process, although there is a separate tort for damages, it's... the finding of abuse of process does not forfeit the valid substantive claim. That claim continues to go forward on the merits.
Antonin Scalia: Why is it clear that Rule 9 itself doesn't cover this case? Don't you think the State's ability to respond is affected if this habeas petition is dumped upon the State at the eleventh hour when it is clear that the State cannot respond in time to go ahead with the scheduled execution?
Donald B. Verrilli, Jr.: I do not, Your Honor. First, the burden is on the State to plead rule 9(a) and to advance it as a reason for dismissal. They did not do so. The State did preserve Rule 9(a) for future litigation in this case, but they very clearly and distinctly did not advance it as a reason for dismissal.
Antonin Scalia: I see, and you think that a court of equity cannot even take into account the fact that this would have come under 9(a) anyway in deciding whether the court of equity could decide that habeas corpus won't lie?
Donald B. Verrilli, Jr.: Well, I don't think it would have come under Rule 9(a) anyway.
Antonin Scalia: Well, that's a different argument from the one--
Donald B. Verrilli, Jr.: Yes.
Antonin Scalia: --you were just making.
Donald B. Verrilli, Jr.: It is, but there is a threshold point here of some importance.
Antonin Scalia: I'm asking whether a court can consider whether, had 9(a) been alleged, that wouldn't have sufficed anyway.
Donald B. Verrilli, Jr.: what this Court has said is that the timing of the filing of a petition can be considered. However, the only circumstance in which this Court has indicated that it has decisive weight, or very substantial weight, is in the context of a subsequent petition. The case that comes to mind is this Court's Gomez case, which was Mr. Harris' case, and it was a section 1983 action after four petitions had been filed.
Antonin Scalia: So you'd say, even with a later petition if the petition comes in, you know, 2 minutes before the execution and the State is supposed to respond and a court consider the State's response and rule on the matter within those 2 minutes, that wouldn't be a violation of Rule 9?
Donald B. Verrilli, Jr.: That's not the kind of prejudice that we think Rule 9 addresses, Your Honor.
William H. Rehnquist: Well, Rule 9 is... it must be a very poorly drawn rule, then. You say that if the petitioner comes in, say even with a second Federal habeas, 5 minutes before the execution is scheduled, he's entitled to have a complete consideration on the merits even though the district judge cannot immediately digest any part of it?
Donald B. Verrilli, Jr.: With respect to a second Federal habeas, no, Mr. Chief Justice. We think the rules are quite different there. The presumption in that context is strongly against review, because of the various doctrines that this Court has announced as a matter of the equitable nature of this remedy over the years, and as a general matter.
William H. Rehnquist: But the State has to plead abuse in a second Federal habeas, doesn't it? I mean, it just doesn't automatically get pleaded.
Donald B. Verrilli, Jr.: That rule is clear, Mr. Chief Justice, and has been clear for years, that the burden is on the State to plead abuse.
Antonin Scalia: Well, if this were... so the question, it seems to me, is whether we should consider as effectively a second habeas what is technically a first habeas that's been filed after the proceeding has been delayed numerous times, not by this petitioner but by people related to this petitioner, seeking to proceed as next friends. Why shouldn't I consider that the same thing as a second habeas for purposes of whether Rule 9 applies--
Donald B. Verrilli, Jr.: Justice Scalia--
Antonin Scalia: --in the way I've just suggested?
Donald B. Verrilli, Jr.: --I think that is the crux of the case, Justice Scalia, but I think this Court cannot do so, and there are three reasons for that. The first is that, as a matter of the statute and Rule 9(b), there is a requirement of a prior determination on the merits of the claims. Thus, as a statutory matter, the condition for treating this as a subsequent petition simply isn't satisfied. Second, there is no--
Antonin Scalia: Excuse me, why do you say... what about delayed petitions, 9(a)? I'm talking about 9(a), not 9(b). There's no requirement that it be a second or successive petition. 9(a) relates to a delayed petition. It says it may be dismissed if it appears that the State has been prejudiced in its ability to respond.
Donald B. Verrilli, Jr.: --Yes, but I took it that Your Honor was asking me why shouldn't the Court treat this as though it were a successive petition, and I'm trying to suggest--
Antonin Scalia: For purposes of whether 9(a) is applicable, not 9(b). For purposes of whether the State has been prejudiced in its ability to respond.
Donald B. Verrilli, Jr.: --Well--
Antonin Scalia: You say that we shouldn't apply 9(a) strictly to the first petition, and granting that, although 9(a) doesn't say anything like that, but even if that is true, why should I consider this to be the first petition for that purpose when in fact there have been several others filed on this prisoner's behalf?
Donald B. Verrilli, Jr.: --Well, I think the Court has to consider it a first petition because it is. 9(a) imposes a requirement of unjustified delay as a trigger to this laches analysis, and that... if the Court is to analyze the case--
Ruth Bader Ginsburg: Mr. Verrilli, 9(a) could be applicable to a first petition, could it not?
Donald B. Verrilli, Jr.: --Certainly.
Ruth Bader Ginsburg: If there had been delay, and as a result the prosecutor was unable to answer a point that he might have answered earlier.
Donald B. Verrilli, Jr.: Certainly, Justice Ginsburg.
Ruth Bader Ginsburg: So 9(a), it doesn't matter whether it's the first or the tenth, 9(a) could apply.
Donald B. Verrilli, Jr.: That's certainly correct, Justice Ginsburg, and I didn't mean to suggest anything to the contrary. 9(a) would apply, but the question would be whether there were unjustified... there was unjustified delay here, given the prior next friend proceedings. The question would require, it seems to me, an inquiry into those next friend proceedings then, because if delay is unjustified under Rule 9(a) it's got to be in some sense attributable to the petitioner. That--
David H. Souter: Yes, but that could happen in either of two ways. I take it there's no indication here that he had requested or encouraged the next friend petitions. I guess that's... in your favor.
Donald B. Verrilli, Jr.: --Correct, Justice Souter.
David H. Souter: On the other hand, the fact that those next friend petitions were pending, or there were proceedings on them, didn't bar him from coming in with his own petition. All he had to do was walk in and say, here's my petition. I'm competent. Nothing stopped me.
Donald B. Verrilli, Jr.: That's right, Justice Souter, but in terms of whether those prior proceedings created an unjustified delay, I think we have to look into whether... we have to look into the way those--
David H. Souter: Well, I'm prepared... I think what I meant to suggest by my two questions is, I'm prepared to say that to the extent those prior next friend proceedings dragged things out, I guess there's no evidence that would support the argument that we should attribute them to him as opposed to the next friends, but I'm also suggesting that those next friend petitions really don't necessarily explain the delay, because there could have been 10 next friend petitions going on, and he could still have walked in with his own petition at any time.
Donald B. Verrilli, Jr.: --That's correct if there were some obligation on his part to do so, and--
David H. Souter: Well, the question is why... that's... I guess that's the question. Was there an obligation, since we have a rule against delay, and my suggestion is that nothing precluded him from coming in earlier, including the next friend petitions.
Donald B. Verrilli, Jr.: --Yes, Justice Souter, nothing precluded him from doing that. He resisted those petitions because he wanted to die. He changed his mind at a later time, but--
William H. Rehnquist: Well, if there's no obligation to come forward at any time, then the provision of delay in 9(a) really doesn't mean much. I mean, if in order to trigger any inquiry into delay you have to find that there was some sort of a statutory obligation on the petitioner to come in and bring his petition, then 9(a) really doesn't mean much.
Donald B. Verrilli, Jr.: --Well, Mr. Chief Justice, there is no statute of limitations on habeas. I take it that's an intentional decision by Congress that petitions can be brought at several years after the conviction becomes final. The constraint on delay is the constraint of laches imposed by Rule 9(a), which is laches, that delay that prejudices the other party's ability--
Anthony M. Kennedy: Are you saying, then, that our more recent decision in Gomez... there's Hillery and Vasquez, which you rely on. Then in Gomez we said that a court may consider the last minute nature of an application to stay execution in deciding whether to grant equitable relief.
Donald B. Verrilli, Jr.: --Yes, but the context of Gomez is quite different here. That was the Harris case, where there had been four adjudications, habeas petitions adjudicated on the merits, and what I take to be the gist of that statement--
Anthony M. Kennedy: Well, it's preceded by a sentence that says the claim could have been brought more than 10 years ago.
Donald B. Verrilli, Jr.: --Yes--
Anthony M. Kennedy: It was not geared to successive... you're quite correct there were successive petitions in that case.
Donald B. Verrilli, Jr.: --Your Honor, as I read that opinion, what it seemed to be saying is that precisely because there had been four prior opportunities to raise that claim in Federal habeas in the normal course of events and it was not raised, that this section 1983 action in Gomez ought to be considered and truly was an end round, a run... an end run around the abuse of the writ principles that would normally have foreclosed consideration of that, and that section 1983 ought not to be used in that manner.
Antonin Scalia: But Mr. Verrilli, it is your position, if I understand it correctly, that a condemned prisoner can routinely wait until the last minute, 1 minute before his execution, to file his first Federal habeas, and that's no problem, that you get one free postponement of the execution by just filing a Federal habeas, so long as you make a claim that is, as you say, a substantial claim, not necessarily true, but a substantial claim.
Donald B. Verrilli, Jr.: I think that's where the law is, Justice Scalia--
Donald B. Verrilli, Jr.: Is that right?
Donald B. Verrilli, Jr.: --and where it's been since Barefoot v. Estelle, that a--
Sandra Day O'Connor: But is that true even if, because of the lateness of the filing, the State is unable to present what could well be a claim showing how the State has been prejudiced by the delay?
Donald B. Verrilli, Jr.: --Yes, I think so, Justice O'Connor, and particularly... and the circumstances of this case are somewhat anomalous in that respect because actually because of the next friend proceedings the State has known since 1991 in this case what the claims are, and therefore that sort of surprise issue, though it might be present in another record, actually isn't present on this record. There's also something about the way in which Georgia's procedure works with death penalties that makes that a more difficult issue as well, and that there's this week-long period in which the execution can occur, which I gather is established precisely to avoid this problem, so that even if the petition is filed shortly before--
William H. Rehnquist: Well, certainly Barefoot says that Federal habeas is not essential to the validity of a death penalty, and so supposing I am a Federal district judge sitting in Atlanta, and I'm brought a petition 5 minutes before an execution is scheduled for, and I simply say, I can't possibly digest the contents of this petition at this time, it's so late. What do I do?
Donald B. Verrilli, Jr.: --I think a limited stay is in order--
Donald B. Verrilli, Jr.: Why?
Donald B. Verrilli, Jr.: --in those circumstances--
William H. Rehnquist: The petitioner has to persuade the judge that there's some Federal flaw in the punishment procedure, or the guilty phase, don't they?
Donald B. Verrilli, Jr.: --Yes, Mr. Chief Justice, but a limited stay in situations where that inquiry can't be done simply on the face of the papers in short order, which I imagine--
William H. Rehnquist: But it's the fault of the petitioner that it can't be done.
Donald B. Verrilli, Jr.: --I think, Mr. Chief Justice, that it's the result of a system in which there is no statute of limitations.
William H. Rehnquist: Okay, there's no statute of limitations, and nobody is saying that you're barred because of the statute of limitations. There is no statute of limitations in habeas. But you're coming in 5 minutes before an absolute deadline with a complicated thing that can't be digested in the remaining 5 minutes. Why can't the judge say, sorry, the burden is on you, and you've just come in too late to establish it?
Donald B. Verrilli, Jr.: Well, I don't think the facts would support that result here, but--
William H. Rehnquist: No, no. I'm... this is a hypothetical.
Donald B. Verrilli, Jr.: --I understand, Mr. Chief Justice, but even in another case, it seems to me a very short stay would be in order in those circumstances simply to permit the evaluation of whether there are substantial Federal claims in the petition, and that's--
David H. Souter: Mr. Verrilli, take the Chief's example with one further fact added. The judge asks the same question that he asked as the Chief Justice put the hypo to you, and there is also before him this further fact, that the prison warden had gone to this prisoner five times in the last 6 months saying, legal services are available to you, do you want to file a habeas petition because we're setting the execution date and we don't want to be doing this at the last minute, and his answer in each case was, I'm going to file one, but I'm going to wait till the last minute because I have a right to file it 5 minutes beforehand. In that case, would you say that under this rule the court was required to stay it and consider it on the merits?
Donald B. Verrilli, Jr.: --There may be circumstances, extreme circumstances--
Donald B. Verrilli, Jr.: How about my circumstances?
Donald B. Verrilli, Jr.: --Extreme circumstances like those circumstances in which there is proof of bad faith. In that case, the equitable doctrine, the traditional equitable doctrine of unclean hands narrowly confined within its traditional bounds may apply and give--
David H. Souter: All right. Does your argument, then, boil down to this, that if we don't know... if we don't have affirmative knowledge of the reason for the delay, 5 minutes is not enough, and that's as far as you're going?
Donald B. Verrilli, Jr.: --Absent a finding of bad faith and unclean hands, it seems to me there's no basis for denying a stay in those circumstances.
Stephen G. Breyer: All right. Can I ask you a question before you run out of time? Are you... you're still representing this person, and he wants you to represent him here?
Donald B. Verrilli, Jr.: Very definitely, Justice Breyer.
Stephen G. Breyer: He's made it clear that he wants this case to be brought here in the Court?
Donald B. Verrilli, Jr.: My communications with this client have left me with no doubt about that, Your Honor.
Donald B. Verrilli, Jr.: Okay, thank you.
Donald B. Verrilli, Jr.: I'll reserve the balance of my time, if I may.
William H. Rehnquist: Very well, Mr. Verrilli. Ms. Westmoreland, we'll hear from you.
Mary Beth Westmoreland: Mr. Chief Justice, and may it please the Court: The Court is faced today with what is truly not a classic first Federal habeas corpus petition riled by a death row inmate in a timely fashion. There are many things this case is, but that is exactly what it is not. All we have asked the Court in this case to do is to apply traditional equitable principles in existence for decades to what is clearly an inequitable conduct on the part of the petitioner in this action.
David H. Souter: Ms. Westmoreland, could the State court have done, in effect, the same thing? The State court, as I... if I've got my facts straight, dismissed the first State habeas petition without prejudice, is that correct?
Mary Beth Westmoreland: The first one that Mr. Lonchar actually filed himself, yes, sir.
Mary Beth Westmoreland: That's right... not the next friend petitions--
Mary Beth Westmoreland: That's correct.
Mary Beth Westmoreland: --but the first one of his.
Mary Beth Westmoreland: That's correct.
David H. Souter: Is there any reason why the State court judge could not have said at that point, this is your chance to bring a State habeas petition, and this is the only one you're going to get, and I'm going to... you either go forward with this, raising whatever you can raise, or I'm going to dismiss it with prejudice, not without prejudice, but with prejudice. Could the State court judge have done that?
Mary Beth Westmoreland: Your Honor, in fact we discussed that issue at the hearing before the judge in 1994. That was a question that came up, because our position was we did not want Mr. Lonchar to be able to do exactly what he had done--
Mary Beth Westmoreland: Right.
Mary Beth Westmoreland: --to change his mind again. We asked for the dismissal with prejudice. After we researched Georgia law on the point, it appeared that Georgia law was at best unclear, but it certainly... the Civil Practice Act seemed to allow a dismissal without prejudice. The court at the hearing made it clear to Mr. Lonchar that she felt that this was the end of the proceedings, that finality as far as State court was concerned--
Mary Beth Westmoreland: Yes, but the order was without prejudice.
Mary Beth Westmoreland: --The order definitely was without prejudice.
David H. Souter: But that's a question of Georgia law.
Mary Beth Westmoreland: Yes.
David H. Souter: So isn't it fair to say that Georgia made the decision at some level that in fact this would be without prejudice, whereas Georgia could have made the converse decision and said, it's going to be with prejudice, in which case there would have been a... I... there would have been a, I suppose, a state bar to raising anything that once an appeal from that was exhausted openly to this Court--
Mary Beth Westmoreland: That's correct.
David H. Souter: --that would have barred anything that could have been raised and we really wouldn't be in this position, would we?
Mary Beth Westmoreland: It would have barred the claims. The problem with that is--
David H. Souter: It would have barred all the claims that he could have brought at that point.
Mary Beth Westmoreland: --Right. There were numerous claims that had already been decided on direct appeal that were present in that petition, so I'm not... I don't know that those would have been barred as a matter of State law, because they have been decided on the merits, but it would have barred--
Speaker: Yes.
Mary Beth Westmoreland: --the remainder of the claims.
Sandra Day O'Connor: Ms. Westmoreland, in this present Federal habeas proceeding, did the State try to make any showing that it had been prejudiced by this late filing?
Mary Beth Westmoreland: No, Your Honor, we did not, and we--
Sandra Day O'Connor: And why not?
Mary Beth Westmoreland: --Because of the late filing itself. It was the timing of the petition and the time at which we received it, and simply did not have the time to get a response filed, to get the petition dismissed, and to make further inquiry into the entire prejudice, and I would point out a second aspect--
Sandra Day O'Connor: Could we just review a little bit the factual circumstances here? A period of time had been set within which the execution could be carried out. It was June 20 to 30th--
Mary Beth Westmoreland: --Yes.
Sandra Day O'Connor: --a 10-day period?
Mary Beth Westmoreland: Seven-day period, actually.
Sandra Day O'Connor: A 7-day period.
Mary Beth Westmoreland: Yes, that's correct.
Sandra Day O'Connor: And the petition filed by petitioner was filed 2 days before the expiration of that period?
Mary Beth Westmoreland: His petition was filed on the... initially in State court on the day we had an execution scheduled. It was temporarily stayed over the weekend, and then the Federal petition was then filed, I believe, 2 days before the end of that period that had occurred, yes, Your Honor, that's correct, and during that time we were engaged in looking at the first question of whether the State court was going to even consider the merits of the claim, because the State court was concerned with timeliness as well.
Sandra Day O'Connor: And did the State tell the Federal district court that it was unable to file a response because of the lateness of the filing?
Mary Beth Westmoreland: We... what I pled in the answer, in the motion in the district court was that we were not waiving 9(a), but we did not have information on the merits of the claims at that point in time... things such as the competency to stand trial claim, and the ineffective assistance of claims due to the timeliness of the proceedings involved, yes.
Sandra Day O'Connor: But did the State explain to the court... do you think it was clear to the court that it was the State's position that it did not have time to make a response?
Mary Beth Westmoreland: Your Honor, I think that was clearly pled in our pleadings with the district court that we were saying we don't have time... because of the circumstances there's no way we can make a representation about prejudice one way or the other. And now we'll get back to a secondary point on that, is that obviously on certain claims there was no prejudice because they had already been litigated on the merits, and that was the secondary problem we had with pleading delay as a general principle and pleading 9(a) as a general principle, and I didn't want to misrepresent to the Court that we couldn't respond to all of the claims because I think we probably could have, although how quickly and how thoroughly I could have done so would have been a different matter.
Stephen G. Breyer: If you didn't invoke Rule 9... I take it you didn't invoke it. You didn't say we're going to come in and show that we're prejudiced. So then what you're asking this Court to do is to say there's a new ground for denying a habeas petition that no one's ever invoked before, and if there is a good ground, and there may be, I'm not saying there isn't, why isn't that a matter that we would leave to Congress and the rules committees rather than say there's an ill-defined power to make up new grounds, which I guess would work both ways. Sometimes there would be new grounds, never made up before, to deny petitions, and sometimes they would be new grounds, never heard of before, for granting petitions. But rather than say there is an ill-defined power in the Federal court simply to grant or deny petitions on grounds that have not appeared yet in our cases and have not appeared in the rules or in the statutes, rather we'll stick to Barefoot v. Estelle and keep to what we've seen in the past and let Congress and the rules committees decide when there are new grounds.
Mary Beth Westmoreland: Your Honor, first of all, I think we did plead delay, and we did plead 9(a). What we acknowledged at the time of filing the proceedings in the district court was that based upon the time factor we could not make the particularized showing--
Stephen G. Breyer: I'm not saying that you didn't... I'm not turning to blame or praise for a particular instance. I'm saying, I take it... and tell me if I'm wrong... that you and the Eleventh Circuit have a new ground for denying a first petition never invoked before. Certainly my law clerks in the library could not find a comparable instance forever. Maybe this kind of thing is good, maybe it isn't, but the issue before us, I would take it, is whether there is a general power in the Federal courts to create new grounds not found in Barefoot v. Estelle or later cases for either granting or denying petitions. If that's the issue, I guess my first thought would be, why isn't it up to Congress, or later experience, or the rules committees to embody those new kinds of grounds, rather than simply giving a mandate to the lower courts to do whatever they think is nice in the circumstance?
Mary Beth Westmoreland: --Your Honor, I submit to you that this is not a new ground. We're not asking the Court--
Stephen G. Breyer: We could find no instance, so you can tell me what the instance is. We could find no instance in a first petition where a court had denied the first petition without following Rule 9 or some other well-established ground. Now, what is the instance where this was--
Mary Beth Westmoreland: --I'll agree with you on that, Your Honor. I can find no factual scenario out there like this anywhere.
Stephen G. Breyer: --Right. So then am I right in thinking what this Court would be doing if you're upheld is to say the lower Federal courts are free to create new grounds. Sometimes they'll be for denying petitions, sometimes they'll be for granting petitions. We'll have to supervise it, I guess, and that seems a rather far-reaching proposition, and contrary to Barefoot v. Estelle, and that's what I'm putting to you to hear your response.
Mary Beth Westmoreland: Your Honor, what we would submit is what the district courts have the discretion to do is to examine new issues as they arise, new factual and procedural scenarios as they come up under long-established equitable principles. We're asking that this Court allow the district court to utilize what this Court has consistently recognized the district court can do, and that is, look at equity.
Stephen G. Breyer: And of course the other way will work, too.
Mary Beth Westmoreland: Certainly.
Stephen G. Breyer: We'll got a lot of cases where they have new grounds in equity for granting them, and why... I mean, normally, I take it Barefoot v. Estelle was a statement that by and large we will follow traditional practices rather specifically or leave it up to the rules committee rather than just have a general mandate. Am I right about that, to make up--
Mary Beth Westmoreland: I think that's a general statement, but I don't think Barefoot went so far as to say we're never going to look at equitable principles on habeas corpus. The history of this Court's habeas jurisprudence has been to examine equitable factors consistently.
Ruth Bader Ginsburg: --Well, let's see how it might work. Suppose we had in this case everything you're saying except for one thing, and the one thing is if there had been no next friend petitions, so that we take out of it the question whether this was effectively a successive Federal petition, no next friend petitions at all. Would that have fit your category of something outside 9(a) and (b) but nonetheless can be an abuse of the writ?
Mary Beth Westmoreland: Your Honor, I think if we had had the 6 years where nothing had happened, and I presume that is the hypothetical you're proposing, I think our argument certainly becomes much harder because then you're a lot closer to what 9(a) is designed to deal with, a true laches situation where nothing has happened except delay. We would submit to the Court that there should be a way for the district court to take that into consideration. However--
Sandra Day O'Connor: Well, Ms. Westmoreland, do you take the position that a last minute filing of a first Federal habeas, without all these intervening next friend things, is inherently prejudicial under Rule 9(a)? Do you take the position that it fits under 9(a) simply because the filing is so close to the deadline?
Mary Beth Westmoreland: --No, Your Honor, we have not taken that position in our brief primarily because we don't need to take that position. We don't need for the Court to take that step in this case because that's simply not what we have.
Sandra Day O'Connor: Well, that's not as big a step as saying the Court can go outside Rule 9 and develop new grounds, but you aren't trying to shoehorn this into rule 9(a).
Mary Beth Westmoreland: No. We're not trying to shoehorn it deliberately into Rule 9(a). I think there's certainly some suggestion that it could be, but what we're simply going back to asking the Court to do is to examine everything that took place in this case... that is, it's not a true first Federal habeas petition filed by Mr.--
Sandra Day O'Connor: Is that your strongest position, that it is effectively a succeeding Federal habeas petition?
Mary Beth Westmoreland: --Your Honor, I think our two strongest positions are that particular fact, and encompassed in that involves the fact that this is not a situation where Larry Lonchar was unaware of anything that was going on. We have an individual determined to be competent by four courts, was brought into court consistently given consistent opportunities to participate.
Sandra Day O'Connor: Well, is there any... is there any authority that you could find where courts have said that a next friend petition which is dismissed without prejudice is to be regarded as in fact a first Federal habeas petition?
Mary Beth Westmoreland: No, Your Honor. No.
John Paul Stevens: May I ask in that regard, please, just one question? Supposing instead of the next friends being his brother and his sister, the State itself had a psychiatrist who was concerned about the mental condition of the person about to be executed, and the defendant kept saying I'm perfectly healthy, I want to be executed and all the rest, but the State's genuine doubt led to precisely the same delay that you had here. Then they finally made up their mind, yes, he's competent, and they set the execution date, and he immediately changed his mind and filed a first Federal habeas. What result?
Mary Beth Westmoreland: Your Honor, I think in that case you'd have to say that the delay at least is in large part attributable to the State, as opposed--
John Paul Stevens: Well, supposing the State did nothing. Very often you have long delays because it's hard to get these things arranged, and what if nothing happened? Would it be the same case then?
Mary Beth Westmoreland: --Your Honor, again, I don't think... it's certainly not the same case that we have here.
John Paul Stevens: Well, why not? Is it because he's responsible for the next friend petitions?
Mary Beth Westmoreland: He's not responsible per se for the next friend petitions. What he's responsible for is not participating in and not filing petitions when he had ample opportunity to do so.
John Paul Stevens: Well, he could have in my hypothetical about the State having its own psychiatrist have these doubts. He could have said... gone ahead any time he wanted. Why is that case different?
Mary Beth Westmoreland: Your Honor, I think the difference in that case is because again you get back to, that becomes our fault. That becomes our fault that it's a last minute proceeding because we haven't taken the action that the State should have taken, and either gone ahead and gotten some litigation to proceed and determine that he was competent, or taken some action to get an execution date set to move the case along.
John Paul Stevens: So you're saying that if everything just remained in status quo from 1990 to 1995, for reasons that the State just didn't decide to execute him promptly enough, you would not deny he could then come in 5 minutes before the execution and get an automatic stay.
Mary Beth Westmoreland: I would have some problems with it. The problem with... first of all, under State law, he can do that. Under Georgia law he can do that. We would not have any way to bar him from doing that at this point, so I would be precluded from making much of an argument in State court, and we would have a State petition filed.
John Paul Stevens: So the last minute application for stay is not, per se, an abuse of the writ.
Mary Beth Westmoreland: No, Your Honor, I don't think it is.
Mary Beth Westmoreland: Then I--
Mary Beth Westmoreland: I don't think it is, and again, what we're saying in this case is there is much more involved than just--
John Paul Stevens: --Yes, but all that's involved is that (a) he had the opportunity, which he had in my hypothetical, and (b), you somehow are attributing his brother's and sister's activities as though he was really behind them.
Mary Beth Westmoreland: --Your Honor, I think we're doing a little bit more than that, and actually I'm not blaming or crediting Larry Lonchar for the actions of his brother and sister. What I am giving him responsibility for is for being in open court on numerous occasions and having the opportunity to raise the exact claims he's raised here.
John Paul Stevens: Yes, but that could have happened in my hypothetical. When the State is, on its own motion, conducting hearings all along the line trying to satisfy itself he's an appropriate candidate for execution he'd be in court repeatedly, and you're saying that would be a different case.
Mary Beth Westmoreland: Well, Your Honor, if he's in court repeatedly denying the opportunity to do so, that might present a somewhat different situation, but I think what we're focusing on is his opportunity to participate in litigation, his opportunity to raise the identical claims... the only claim raised in this petition that's new is the method of execution claim. Everything else has been presented in one of these prior petitions, if not more than one.
David H. Souter: But in each of the cases, in the case of each prior petition, he in effect was saying, I am not incompetent, and I do not want these people to file these things for me.
Mary Beth Westmoreland: That's correct, Your Honor. That--
David H. Souter: And so all he has done, it seems to me, is to change his mind at the last minute that he wants his case reviewed, and yet you have said that under Georgia law he could perfectly well do that if he had sat silent for 6 years. So in... it seems to me... I guess I'm getting... trying to make the same point that Justice Stevens' question did. Unless you are going to attribute the brother and sister petitions to him, I don't see why his position is any different, essentially, from what it would have been if for 6 years he had said, I don't want relief, I want to die, and at the end of 6 years, with 5 minutes to go, he said, I've changed my mind. I don't see what the difference is, unless you attribute the brother and sister to him.
Mary Beth Westmoreland: --Your Honor, I think under the circumstances that we have here, I think you have to attribute those proceedings to him at least to the extent of, he's had his chance. He's had his opportunity for access. He's had the opportunity--
David H. Souter: He would have had the opportunity in Justice Stevens' hypo--
Mary Beth Westmoreland: --Certainly.
David H. Souter: --and he would simply have sat on it. The only difference is, in one case he would have been sitting on it in a jail cell, and in another case he was sitting on it during certain periods of time when he was pulled into court against his will.
Mary Beth Westmoreland: Pulled into court and given ample opportunity to adopt the same claims that he is now seeking to raise.
David H. Souter: Absolutely, and in each case he said, I'm competent. I don't want these people filing claims on my behalf.
Mary Beth Westmoreland: And I think, Your Honor--
David H. Souter: I mean, wasn't he free to take that position?
Mary Beth Westmoreland: --Certainly. Certainly. He was free to take the position and free to pursue what he still says he wants to do, and I think that becomes our second... in response to Justice O'Connor's question earlier, our second most important factor in this case is what Mr. Lonchar is trying to do, and what he says he is trying to do, and what both the State court and the district court found as fact he is trying to do. He adopted, and I use the word very loosely, the allegations of these petitions because he's decided that was the only way he could try to have the method of execution changed in the State of Georgia. Mr. Lonchar has never said he wants his death sentence reversed. He has never said he wants a new trial. He has never said anything but, I want to be executed.
David H. Souter: But he is saying that he does have a claim that entitles him to relief. He's saying that.
Mary Beth Westmoreland: What he--
David H. Souter: Isn't he?
Mary Beth Westmoreland: --What he is saying, and I think this gets back to what... if you look at what he says in these proceedings, he wants the opportunity to donate his organs.
David H. Souter: Right.
Mary Beth Westmoreland: To make some meaningful contribution to society.
David H. Souter: That's what may motivate him to change his position going forward here, but so... don't we have to take his claim at this point as a claim that he is entitled to some relief, I presume a vacation of his conviction, and he is making that claim, isn't he?
Mary Beth Westmoreland: Your Honor, I don't think that's the claim he's making. I think the reading--
David H. Souter: Then if he's not, then the thing should be thrown out on a motion to dismiss.
Mary Beth Westmoreland: --That's exactly what the State court did in the first fashion and said he's not seeking relief.
David H. Souter: All right, but then you'll get your relief. If that's the case, then you'll get your relief on a motion to dismiss, not on the invocation of some new equity room.
Mary Beth Westmoreland: And we moved to dismiss.
David H. Souter: All right, but you're--
Mary Beth Westmoreland: That's exactly what we did.
David H. Souter: --That's a separate issue, and so far at least in the Federal court you haven't had any success on that, in part because the Federal court went off on another ground, but leaving that aside, until it is dismissed, I guess we have to assume that he's making a claim which says I'm entitled to some relief here, and the relief, in fact, if I get it, will prolong my life, right?
Mary Beth Westmoreland: Your Honor, if you looked at the face of the pleadings alone, yes, I think you would have to assume that. If you looked at what Mr. Lonchar--
David H. Souter: All right. Well, we... haven't we got to assume that for the sake of this case?
Mary Beth Westmoreland: --I think if you look at what he said in open court, both before the State court and before the district court in June of this year, that's not what he's trying to do.
David H. Souter: Well, what he said in open court was, I want this relief because I want to buy time, and in that time I hope the State is going to change its method of execution so that when and if I am executed, or when I am executed, I may drop my proceedings, if that happened. I will drop my proceeding if that happened. I can donate my organs to an organ bank, or to science, or whatever. That's what he said, isn't it?
Mary Beth Westmoreland: What he actually said was, I've been told that the only way I can get this accomplished, to change the method of execution, is to file this petition.
William H. Rehnquist: Well, didn't the court of appeals say in its opinion that he had filed for improper purposes?
Mary Beth Westmoreland: Yes, they did, Your Honor.
William H. Rehnquist: So that is in effect before us.
Mary Beth Westmoreland: Yes, Your Honor, that's correct. That's exactly... and the district court--
David H. Souter: And the improper purpose was this desire to wait so that he could make the organ donation, right?
Mary Beth Westmoreland: --The desire simply to wait.
Mary Beth Westmoreland: Yes.
Mary Beth Westmoreland: And that's not--
David H. Souter: But I mean, isn't he... if he is entitled to relief on his claim, taken by itself, isn't he entitled to do with his life what he wants to do with it?
Mary Beth Westmoreland: --If he's raising a substantive claim for habeas corpus relief, which we submit he's not doing. What he's seeking--
David H. Souter: Okay, but that's the separate issue. If that's the case, you will succeed on a motion to dismiss. If he hasn't stated a claim, you're going to get it thrown out because he hasn't stated a claim, and that's not before us, as I understand it.
Mary Beth Westmoreland: --Well, Your Honor, I think that's wrapped up in what the Eleventh Circuit's opinion was. I believe--
David H. Souter: No, but the Eleventh Circuit did not say, he has not stated a claim. The Eleventh... as I understand it, the Eleventh Circuit said he has engaged in delaying tactics which, on equitable grounds, we are entitled to consider in denying the petition. Isn't that what it said?
Mary Beth Westmoreland: --That was the fundamental premise, but I believe they also focused, as did the district court, on what he was trying to do. The district court's opinion itself, and it's discussed--
David H. Souter: Sure, but... no, but all I'm saying is, we are not here to consider whether or not he stated a claim upon which habeas relief could be granted, isn't that fair to say?
Mary Beth Westmoreland: --I think that's fair to say.
Speaker: Okay.
Mary Beth Westmoreland: In that technical sense, when we look at the entire petition--
David H. Souter: Right. Okay.
Mary Beth Westmoreland: --Certainly.
David H. Souter: Okay, so if we put that issue aside, we've got to assume that he has, at least for purposes of this proceeding, stated a claim, and the answer which comes, I guess, out of the circuit, and what you're saying is, that shouldn't matter, because he wants to use his relief for an improper purpose, and the improper purpose is to live long enough to donate his organs to science, and my question to you is, if he is entitled to relief, which we have to assume at this point he is, why is he not entitled to use the life or the period of life that he gains by it for whatever purpose he chooses?
Mary Beth Westmoreland: If Mr. Lonchar were saying that I want my conviction and sentence reversed, and in that time period we're going to do what we can about the method of execution, then that does undercut that aspect of our argument, but that's not what he's doing in this case. In spite of the fact that the petition has claims in it which are not subject to dismissal, Mr. Lonchar's stated intent, and the relief he seeks, he does not seek to have his conviction and sentence reversed. That's not the relief he's seeking. We're back to the point--
David H. Souter: Okay, then it ought to be thrown out because he is not seeking relief upon which habeas corpus can grant relief, but that's a separate issue, isn't it?
Mary Beth Westmoreland: --It... there's two different issues, and that's a different one, yes, but it's certainly an issue.
David H. Souter: Okay. But we've got to assume that that issue is not before us right now. Now, why... if we make that assumption, what's the answer to my question that he ought to be entitled to use whatever life he gets for whatever purpose he wants to use it? What's the answer to that?
Mary Beth Westmoreland: Your Honor, if you get past that... if you take that assumption, and you go past that point, then what he wants to do with his life is not necessarily the factor any more. Then we're back to looking at equitable principles. We're looking at what has gone on over the past 6 years in this case to determine... we're back to looking at equity, and why equity allows the district court--
David H. Souter: And that then gets us solely to the matter of delay, and you have said that even under Georgia law he could have delayed up until 5 minutes and that would not disentitle him on equitable principles under Georgia law to relief.
Mary Beth Westmoreland: --Alone.
Antonin Scalia: Ms. Westmoreland, I thought you were not willing to accept that assumption. I thought what--
Mary Beth Westmoreland: I'm not, Your Honor.
Antonin Scalia: --Yes, I thought not. I thought that your position is, yes, we're not entitled to a dismissal. That's been ruled on, and it states a claim on its face, but nonetheless, for equitable purposes you can consider the purpose for which he is seeking relief as a factor in the equitable judgment.
Mary Beth Westmoreland: Yes, Your Honor.
Antonin Scalia: It's the same factor that could be used for a dismissal of the complaint, but merely because you can't dismiss the complaint doesn't mean you that you cannot consider it as an equitable factor.
Mary Beth Westmoreland: I think that's absolutely our point.
Stephen G. Breyer: Is that normally an equity, that... I mean, if I think that somebody is sitting on my piece of property, and I get an injunction to get rid of them, and I'm legally entitled to the injunction, does it matter if I want to get rid of him because I hate him, rather than I couldn't care less whether he's actually on the property? I mean, I've just never seen that in equity, but maybe it is, I don't... that the motive matters as opposed to whether you're legally entitled to get rid of this person or not get rid of him. What matters, whether you like him, you don't like him, is there some equitable principle?
Mary Beth Westmoreland: Your Honor, I think that equitable principles... and again, we get back to separating one at a time. If you look strictly at motivation in your hypothetical, then no, that alone does not figure into it. But can you factor all of these aspects together? Can you factor into the equation in this case his stated purpose, the stated relief he seeks, his failure to participate in the next friend actions, factor all of these things together--
Stephen G. Breyer: Yes, but I take it his purpose, he says, look, I'm legally entitled not to be executed because there were legal mistakes made in my trial in earlier proceedings. Does it matter if the reason he doesn't want to be executed is because he wants to live forever, or because he feels that he'd like to use the last few years left to him to make certain his organs are donated to help humanity? What's the difference?
Mary Beth Westmoreland: --I think it certainly matters, Your Honor, when what he says is, I'm not interested in getting my death sentence or my conviction reversed. I want to be executed. And what he specifically said was, I'd be happy to be executed this afternoon.
Ruth Bader Ginsburg: Ms. Westmoreland, you listed a series of factors in response to Justice Breyer's question about the equities. It's true habeas is an equitable remedy, but isn't there also a large concern that there shouldn't be unevenness? Equity discretion for the individual chancellor may fit one way when we're talking about distribution of property, it may fit another way when we're talking about life or death.
Mary Beth Westmoreland: Your Honor, I think there's certainly a concern about the evenhanded distribution of justice, if you will.
Ruth Bader Ginsburg: Isn't that why rules are important, so that everybody will do it the same way?
Mary Beth Westmoreland: Rules are certainly fundamentally important, Your Honor. The problem that we have in this case is we have a scenario never envisioned by Congress, on which Congress simply has never had the occasion to need to enact a rule. This Court in its history has never felt constrained to refuse to look at an equitable principle simply because Congress has not acted.
Antonin Scalia: Well, there's a lot of stretch left in Rule 9 anyway, isn't there, 9(b), for example, if the judge finds that the failure of the petition constituted an abuse of the writ? There's a lot of leeway allowed as to what the judge may consider to be abuse of the writ, isn't that right?
Mary Beth Westmoreland: That's correct, Your Honor, and I think this Court has made it quite clear in its abuse-of-the-writ cases that... we're not saying it's limited to any specific little litany of factors.
Ruth Bader Ginsburg: To get into that box, though, it has to be a successive petition.
Mary Beth Westmoreland: For 9(b), it does. 9(b) specifies successive petitions, that's correct, but there are other--
David H. Souter: May I go back to Justice Ginsburg's earlier question, and that is, if this case, given the importance that we all agree a... some kind of a regime of general rules has, isn't the very fact that this case is so unusual, perhaps it is truly unique, a good reason not to use this case as the occasion to fashion a new rule which in fact is broader than the case?
Mary Beth Westmoreland: --Your Honor, one of the reasons that we're not asking for a new rule is because I think the old rules of equity apply to this case. That's the problem with--
David H. Souter: Well, a rule which addresses this situation under circumstances which equity courts have never done before. You agree... Justice Breyer said, I can't find any examples of this--
Mary Beth Westmoreland: --I can't--
Mary Beth Westmoreland: --and you said, I can't, either.
Mary Beth Westmoreland: --No.
David H. Souter: And isn't that a good reason not to use this as the springboard for a new line of equity jurisprudence?
Mary Beth Westmoreland: Your Honor, if we were asking the Court to do just that and to engage in an entire new line of lawmaking or decisionmaking, then I think this case presents certain factual problems that make it more difficult to engage in general rulemaking, because it's not the general case, but we're not asking the Court to go off making new broad-ranging rules because we don't... under the circumstances of the case, we simply don't need them. Yes, this case presents a classic example of we got two different last minute petitions being filed, two different stays of executions at the very last minute, which could have come up certainly much earlier in the proceedings. It does lend itself to that analysis.
William H. Rehnquist: Thank you, Ms. Westmoreland.
Mary Beth Westmoreland: Thank you, Your Honor.
William H. Rehnquist: Mr. Verrilli, you have 3 minutes remaining.
Donald B. Verrilli, Jr.: If the Court has no further questions, we're prepared to submit.
John Paul Stevens: I have just one question I would... I should know this from the papers, but what method of execution does Georgia now use?
Donald B. Verrilli, Jr.: Electrocution.
John Paul Stevens: It still uses electrocution.
William H. Rehnquist: Very well. The case is submitted.