Yuen v. International Revenue Service Petition for Writ of Certiorari

    1 | i Supreme Court, U.S.J  ' “ F I L E D

APR 10 1986
No. 85-5542 JO S E P H  F. SPANIOt, JR ,

IN THE

Supreme Court of tfje Ŝlmteb States
October Term , 1985

Alvin Bernard Ford, or Connie Ford
INDIVIDUALLY, AND AS NEXT FR IE N D  ON BEH A LF OF 

Alvin Bernard Ford, Petitioner, 
v.

Louie L. Wainwright, Secretary Department of 
Corrections, Respondent.

On Writ Of Certiorari 
To The United States Court Of Appeals 

For The Eleventh Circuit

REPLY BRIEF FOR PETITIONER

R ichard  L. J orandby 
Public Defender 
15th Judicial Circuit of Florida 
224 Datura Street/13th Floor 
West Palm Beach, Florida 33401 
(305) 837-2150
Craig S. Barnard
Chief Assistant Public Defender
R ichard H. Burr  III 
Assistant Public Defender

Of Counsel Counsel for Petitioner
Laurin  A. Wollan , J r .
1515 Hickory Avenue 
Tallahassee, Florida 32303

PRESS OF RAM PRINTING, HYATTSVILLE, MD 20781 (301) 864-6662



1

TABLE OF CONTENTS
Page

Argum ent ..........................................................................  1
Conclusion......................................................................... 10

TABLE OF AUTHORITIES
Cases Page
Baldwin v. Hale, 68 U.S. 531 (1864)......................... 6
Barefoot v. Estelle, 463 U.S. 880 (1983)...........................  7
Braden v. 30th Judicial Circuit Court, 410 U.S. 484

(1973)............................................................................  8
Ex parte Bollman, 8 U.S. (4 Cranch) 75 (1807).............. 8
Ex parte Lange, 85 U.S. (18 Wall.) 872 (1873).............. 8
Ex parte Watkins, 28 U.S. (3 Pet.) 650 (1830)......... 8
Fay v. Noia, 372 U.S. 391 (1963)........................................ 9
Gilmore v. Utah, 429 U.S. 1012 (1976).............................  6
Goss v. Lopez, 419 U.S. 565 (1975)...................................  6
Grannis v. Ordean, 234 U.S. 385 (1914).........................  6
Hawk v. Olsen, 326 U.S. 271 (1945).................................  9
Hunter v. Wood, 209 U.S. 205 (1908)...............................  9
In  re Loney, 134 U.S. 372 (1890).......................................  9
In  re Neagle, 135 U.S. 1 (1890)....................... .................  9
Johnson v. Zerbst, 304 U.S. 458 (1938)...........................  8
Moore v. Dempsey, 261 U.S. 86 (1923).............................  8
Preiser v. Rodriguez, 411 U.S. 475 ( 1 9 7 3 ) . . . . . . . . . . . .  8, 10
Townsend v. Sain, 372 U.S. 293 (1963)...........................  9
United States v. Hamilton, 3 U.S. (Dali.) 17 (1795) . . . .  8
Wainwright v. Sykes, 433 U.S. 72 ( 1 9 7 7 ) . . . . . . . . . . . . . .  8
Waley v. Johnston, 316 U.S. 101 (1942)...............   9
Statutes
Florida Statutes § 922.07...............................................  passim
Periodicals
Amsterdam, Criminal Prosecutions Affecting Federally 

Guaranteed Civil Rights: Federal Removal and 
Habeas Corpus Jurisdiction to Abort State Court
Trial, 113 U. Pa. L.Rev. 793 (1965)...........................  8

Bator, Finality in Criminal Law and Federal Habeas 
Corpus for State Prisoners, 76 Harv. L.Rev. 441 
(1963) ....................................................................... • ■ • 8



ARGUMENT
In reply to the Brief of Respondent, Mr. Ford will make 

three points. First, there was no abuse of the writ, and 
respondent’s implication that there was is inaccurate and 
without any record support. Second, respondent’s por­
trayal of the Florida governor as a “neutral and detached” 
factfinder, capable of making a reliable determination of 
competency to be executed, is flatly contradicted by the 
practice of the governor in making competency deter­
minations. Third, federal habeas corpus provides an 
entirely appropriate remedy for Mr. Ford’s claim, even 
though he has not further challenged the propriety of his 
conviction or sentence.

1. Respondent has not expressly argued, as he did in 
the lower courts, that Mr. Ford has abused the writ. 
Nevertheless he has raised the spectre of abuse by assert­
ing that “Ford’s pleadings allege his mental deterioration 
began in December, 1981, yet he never sought treatment , 
nor did he bring the matter of his alleged insanity to any 
court until ten days prior to his scheduled 1984 execu­
tion.” Brief of Respondent, at 75. Respondent’s implica­
tion is clear: Counsel for Mr. Ford knew about Mr. Ford’s 
incompetency in sufficient time to raise it in his first 
habeas proceeding but instead “saved” the issue for a 
successive petition, and in order to make the issue 
stronger, sought no treatment for Mr. Ford which might 
have the effect of restoring his competency.

As demonstrated in the Statement of the Case in Mr. 
Ford’s opening brief, respondent’s implication is unwar­
ranted and has no support whatsoever in the record.

Mr. Ford’s first habeas petition was filed on December 
1, 1981.1 No claim was made concerning competency—to

1 The information concerning the dates of Mr. Ford’s first habeas 
proceeding is from the docket sheet for that proceeding, maintained 
by the United States District Court for the Southern District of 
Florida as No. 81-6663-Civ-NCR. If needed, counsel will provide a 
copy of the docket sheet for the Court.



2

be tried or executed—nor had any such claim been made 
in any prior proceeding in Mr. Ford’s case. JA 142. More­
over, counsel for Mr. Ford during his first habeas proceed­
ing knew of no factual basis for such a claim at that time. 
Id. On December 7, 1981, the district court denied the 
writ and Mr. Ford filed his notice of appeal.2 Thus, during 
the pendency of Mr. Ford’s first petition in the district 
court, there was no reason for Mr. Ford’s competency to 
be raised as a ground for habeas corpus relief. Respond­
ent’s implication that the issue could have been raised in 
that short-lived proceeding is plainly without basis.

During the pendency of Mr. Ford’s appeal, gradual 
changes did begin to appear in his behavior. JA 17-34. In a 
letter received within the week after the notice of appeal 
was filed, counsel for Mr. Ford were provided the first hint 
that Mr. Ford was becoming ill: He wrote that the staff of a 
local radio station had been talking to him in their broad­
casts over the past few weeks. JA 21-23. Mr. Ford’s 
behavior and writing gradually became more peculiar 
thereafter. JA 23-24. Because of this, counsel asked Dr. 
Jamal Amin, a psychiatrist who had previously evaluated 
Mr. Ford in connection with clemency proceedings, to 
resume seeing Mr. Ford “for therapeutic purposes.” JA 
60. Dr. Amin saw Mr. Ford for several months thereafter, 
id., and came to the conclusion that Mr. Ford was suffer­
ing from paranoid schizophrenia. JA 88-92. Dr. Amin 
recommended treatment with psychotropic medication, 
JA 92, but despite efforts by counsel to obtain such treat­
ment, the prison medical staff refused. JA 147. They “took 
the position that there was nothing wrong with Mr. Ford.” 
Id. Respondent’s assertion that treatm ent was never

2 The notice of appeal was filed immediately, because the district 
court also refused to stay Mr. Ford’s execution, requiring immediate 
application to the court of appeals.



3

sought for Mr. Ford, is, accordingly, flatly contradicted by 
the record.

Even though Mr. Ford continued to deteriorate through 
the remainder of 1982 and through 1983, counsel had no 
notice that his illness had compromised his ability to 
understand the nature and effect of his death sentence or 
why he was to be executed until mid-October, 1983. JA 
147-48. During an interview at that time, Mr. Ford man­
ifested the first signs that his psychotic thought processes 
had begun to affect his competency when he began 
explaining how “Ford v. State” had overturned his death 
sentence. JA 148. Within one week of that interview, 
counsel commenced the § 922.07 proceeding on Mr. Ford’s 
behalf. Id. Thus, counsel immediately pursued state 
remedies upon learning facts suggesting a claim of incom­
petency. There was no “holding back” of an issue until a 
death warrant was signed, as implied by respondent.

Mr. Ford’s request for a stay of execution and treatment 
under §922.07 was not decided by the Florida governor 
for six months thereafter. During this time, if Mr. Ford 
had filed proceedings respecting his competency in the 
state or federal courts, the court of appeals found that “he 
would most probably have been met with a ruling that 
[his] sole relief was pursuant to Florida Statute § 922.07.” 
JA 169. Accordingly, Mr. Ford’s pursuit of relief under 
§922.07 was necessary before he could initiate judicial 
proceedings.

Mr. Ford’s § 922.07 proceeding ended when the gover­
nor signed a death warrant on April 30,1984. JA 12. Three 
weeks thereafter, Mr. Ford filed proceedings in the state 
courts, JA 1, and less than a week after that, in the federal 
courts, JA 1-2.3

3 Counsel for Mr. Ford was unable to initiate judicial proceedings



4

Thus, while it is true that Mr. Ford did not initiate any 
judicial proceedings concerning his competency until ten 
days before his scheduled execution, the implication by 
respondent that Mr. Ford, by that “late filing, abused the 
writ, is wholly unwarranted. As the uncontradicted rec­
ord demonstrates, counsel for Mr. Ford acted in a timely 
fashion to raise the competency issue in the only forum 
that was available as soon as it became apparent. More­
over counsel did nothing to hold back or enhance the issue 
until it was “ripe.” To the contrary counsel sought appro­
priate treatment for Mr. Ford which, if provided, might 
have maintained his competency. Respondent’s own 
employees, however, refused to provide that treatment. 
On this record, there is no abuse of the writ.

2. Respondent has portrayed the Florida governor as 
a “neutral and detached official” capable of making relia­
ble competency determinations based on the advice of the 
psychiatrists he appoints to evaluate the condemned. 
Having bolstered the governor’s portrait with the “pre­
sumption of honesty and integrity” accorded “policy­
makers with decisionmaking power,” respondent urges 
the Court to find the executive decision-making process of 
§922.07 adequate to protect either the Eighth Amend­
ment right or the state-created right to be spared from 
execution when incompetent.

With this portrayal, respondent has obscured the fun­
damental defects in the governor’s competency-deter­
mination procedure, which—even if the governor acts 
with the integrity of a neutral and detached official—

immediately after the signing of the death warrant, because at that 
time all of counsel’s resources were devoted to staying the execution 
of another client, James Adams. Mr. Adams was executed on May 10, 
1984. Mr. Ford’s pleadings were prepared and filed by May 21, 1984.



5

prevent the governor from making sufficiently reliable 
determinations of competency to satisfy the Eighth or 
Fourteenth Amendment.

To resolve any residual doubt about this, the Court 
should look once again at the decision-making process 
followed by the governor under §922.07. The governor 
appoints three psychiatrists to examine the condemned 
and report their findings to him. The condemned is 
allowed to have counsel present during the psychiatric 
examination, but the governor by executive order pro­
hibits counsel from participating in the examination “in an 
adversarial manner.” See Brief for Petitioner, at 30 n. 29. 
After the examination is over, there is no further role 
allowed for the advocate for the condemned.

To be sure, counsel for Mr. Ford tried to play a role 
thereafter: Counsel mailed to the governor a written 
response to the appointed psychiatrists’ reports, and pro­
vided as well the reports of Dr. Kaufman and Dr. Amin 
along with an explanation as to why their opinions were 
mure reliable. JA 149.4 However, the office of the governor 
consistently informed Mr. Ford’s counsel that they were 
“not sure” the governor would consider any of the infor­
mation or argument that counsel submitted. Id. Counsel 
never had the opportunity to address the governor con­
cerning these matters, to question the appointed experts 
before the governor, or to present to the governor the 
testimony of Dr. Kaufman, Dr. Amin, Dr. Halleek, and Dr. 
Barnard (see Brief for Petitioner, at 3-6). In short, counsel 
for Mr. Ford had no assurance that any of the competing 
expert views about Mr. Ford’s illness and its effect on his

4 It was in this written response that counsel for Mr. Ford believed 
they had rebutted the conclusions of the appointed psychiatrists. See 
reference to this in Brief of Respondent, at 46.



6

competency were even known, much less considered, by 
the governor.5

The Court has never approved a rights-determining 
process of this sort—in any context in which any kind of 
right is determined—as consistent with due process. At a 
minimum the Court has required that both sides to the 
controversy be heard by the factfinder. See, e.g., Goss v. 
Lopez, 419 U.S. 565, 579-81 (1975) (citing cases); Grannis 
v. Ordean, 234 U.S. 385, 394 (1914) (“[t]he fundamental 
requisite of due process of law is the opportunity to be 
heard”); Baldwin v. Hale, 68 U.S. (1 Wall.) 531,534 (1864) 
(“[p]arties whose rights are to be affected are entitled to 
be heard . . .”). The Florida governor, however, deter­
mines the life-and-death issue of competency without 
hearing from the condemned. In the case in which there is 
no material dispute among the experts, such a procedure 
may be satisfactory.6 But in the case in which there is a 
material dispute among the experts, such a procedure

5 Mr. Ford was able to present the views of Dr. Kaufman and Dr. 
Amin to two of the three appointed psychiatrists (the third, Dr. Ivory, 
refused to consider them). These psychiatrists adopted Dr. 
Kaufman’s and Dr. Amin’s views that Mr. Ford was psychotic, but 
disagreed that he was also incompetent. JA 102-06. Yet the appointed 
psychiatrists provided no explanation of this—nor did they even note 
Dr. Kaufman’s opinion as to competency—in their reports to the 
governor. Id. Thus, the competing views concerning competency 
were not communicated to the governor by the appointed psychia­
trists.

6 Indeed where there is no dispute among experts, competency 
issues—including trial competency and competency to waive 
appeal—are routinely and appropriately decided by non-adversarial 
processes. See, e.g., Gilmore v. Utah, 429 U.S. 1012 (1976), cited by 
respondent, which approved summary determinations of competency 
by the state courts where there was no dispute among the experts as 
to the defendant’s competency.



7

cannot—and never has been held by the Court to—com­
port with due process.

Such a process of rights-determination is, therefore, 
not a process that enables even a “neutral and detached” 
factfinder to find facts reliably. While such a process may 
be satisfactory in some nations, it is not in ours, for ours is 
one that, first and foremost, trusts “the adversary pro­
cess . . .  to sort out the reliable from the unreliable evi­
dence and opinion.. . .” Barefoot v. Estelle, 463 U.S. 880, 
901 (1983). By failing to provide for the consideration of 
the side of the condemned, Florida’s 922.07 procedure is 
at odds with the fundamental requisite of due process of 
law.

3. Respondent has argued that the determination of 
Mr. Ford’s competency in a federal habeas corpus pro­
ceeding “would be wholly inappropriate,” because “Ford 
is not attacking the validity of his judgment and sentence 
or the lawfulness of the Respondent’s custody, since even 
if there is a right not to be executed while insane, once 
sanity is restored, the execution can proceed.” Brief of 
Respondent, at 47-48. Respondent’s argument is mis- 
splaced, however, for it misunderstands the nature of 
federal habeas corpus.

At bottom, respondent’s argument is premised on Mr. 
Ford’s failure to attack his conviction or sentence. To 
respondent, Mr. Ford’s effort to prevent his execution 
when he is incompetent because of the unconstitutionality 
of such an execution is not enough of a remedy to seek in 
federal habeas corpus. Thus, respondent argues that “the 
traditional function of the writ is to secure release from 
illegal custody,” id., at 48 (emphasis in original)—which 
requires attack upon the conviction or sentence. Habeas 
corpus has never been so limited.



8

The jurisdictional basis for the federal writ is 28 U. S. C. 
§2241, which authorizes the issuance of the writ when­
ever any person is in custody in violation of the Constitu­
tion of the United States, whether or not the purported 
authority for that custody is a judgment of conviction and 
sentence. The 1867 statute which survives today as 
§ 2241(c)(3) and extends federal habeas corpus protection 
to any person “in custody in violation of the Constitution” 
was not originally conceived, and never has been con­
ceived, as exclusively—or even principally—providing a 
means for attacking state-court judgments.7 It is a pro­
cedure for attacking the legality of the petitioner’s con­
finement. It may be maintained when the petitioner is 
confined under other authority than a judgment of convic­
tion, e.g., United States v. Hamilton, 3 U.S. (Dali.) 17 
(1975); E x parte Bollman, 8 U.S. (4 Cranch) 75, 99-100 
(1807), and for purposes other than attacking such a judg­
ment, e.g., Braden v. 30th Judicial Circuit Court, 410 
U.S. 484 (1973); Preiser v. Rodriguez, 411 U.S. 475 
(1973).8 Thus, the Court has observed,

7See generally Amsterdam, Criminal Prosecutions Affecting 
Federally Guaranteed Civil Rights: Federal Removal and Habeas 
Corpus Jurisdication to Abort State Court Trial, 113 U. Pa. L.Rev. 
793, 882-89 (1965)/

8 The irony in Wainwright’s position is that historically the writ did 
not lie at all for the purpose of attacking a judgment of conviction or a 
sentence. When a respondent’s return to the writ showed that the 
petitioner was held by virtue of a judgment of a court having jurisdic­
tion, the inquiry on habeas corpus ended. E.g., Ex parte Watkins, 28 
U.S. (3 Pet.) 650 (1830); Moore v. Dempsey, 261 U.S. 86 (1923). See 
generally Bator, Finality in Criminal Law and Federal Habeas 
Corpus for State Prisoners, 76 Harv. L.Rev. 441 (1963). The emer­
gence of habeas corpus as a post-conviction remedy available to 
question the legality of a conviction and sentence is a recent principle 
resulting from the expansion of the original concept of “lack of juris­
diction.” E.g., Ex parte Lange, 85 U.S. (18 Wall.) 872 (1873); Johnson 
v. Zerbst, 304 U.S. 458 (1938). See generally Wainwright v. Sykes, 433 
U.S. 72, 79 (1977).



9

[WJhile our appellate function is concerned only with 
the judgments or decrees of state courts, the habeas 
corpus jurisdiction of the lower federal courts is not 
so confined. The jurisdictional prerequisite is not the 
judgment of a state court but detention simpliciter 
. . . .  [T]he broad power of the federal courts . . . 
summarily to hear the application and to ‘determine 
the facts, and dispose of the m atter as law and justice 
require,’ is hardly characteristic of an appellate juris­
diction. Habeas corpus lies to enforce the right of 
personal liberty; when that right is denied and a 
person confined, the federal court has the power to 
release him . . . .

Fay v. Noia, 372 U.S. 391, 430-31 (1963). Accord Waley v. 
Johnston, 316 U.S. 101,104-05 (1942); Hawk v. Olson, 326 
U.S. 271, 274-76 (1945). In Townsend v. Sain, 372 U.S. 
293 (1963) the Court further iterated that the “function on 
habeas corpus . . .  is to test by way of an original civil 
proceeding, independent of the normal channels of review 
of criminal judgm ents, the very gravest of allega­
tions. . . . [T]he power of inquiry on federal habeas cor­
pus is plenary.” Id. at 311-12.
• The question of whether Mr. Ford’s claim is appropri­
ately determined in federal habeas corpus therefore does 
not turn on whether he is attacking his conviction and 
sentence. It turns solely on whether he is “in custody in 
violation of the Constitution” within the meaning of 
§ 2241(c)(3) and § 2254(a), if as he asserts, he is being 
confined for the purpose of executing him and his execu­
tion would be unconstitutional. It has long been settled 
that a habaes petitioner is “in custody in violation of the 
Constitution” if he is being confined for purposes of sub­
jecting him to trial that would violate his federal rights. 
See, e.g., In  re Loney, 134 U.S. 372 (1890); In  re Neagle, 
135 U.S. 1 (1890); Hunter v. Wood, 209 U.S. 205 (1908). 
There is no conceivable ground, and Wainwright has 
offered none, for distinguishing the case of a petitioner



10

held for the purpose of subjecting him to a federally 
unconstitutional execution.9

Federal habeas corpus is thus an entirely appropriate 
vehicle for the determination of Mr. Ford’s claims.

CONCLUSION

For these reasons as well as for the reasons advanced in 
the Brief for Petitioner, petitioner respectfully request 
that the Court vacate the judgment of the Court of 
Appeals and remand as requested in his opening brief.

Respectfully submitted,
R ic h a r d  L. J o r a n d b y  
Public Defender 
15th Judicial Circuit of Florida 
224 Datura Street! 13th Floor 
West Palm Beach, Florida 334,01 
(305) 837-2150
Cr a ig  S . B a r n a r d
Chief Assistant Public Defender
R ic h a r d  H. B u r r  III 
Assistant Public Defender 
Counsel for Petitioner

Of Counsel
L a u r in  A. W o l l a n , J r .
1515 Hickory Avenue 
Tallahassee, Florida 32303

9 See also Preiser v. Rodriguez, 411U. S. at 487 (holding that habeas 
corpus is available to attack future confinement that is unconstitu­
tional).