Calderone v. Thompson

LOCATION: United States Court of Appeals for the Ninth Circuit

DOCKET NO.: 97-215
DECIDED BY: Rehnquist Court (1986-2005)
LOWER COURT: United States Court of Appeals for the Ninth Circuit

CITATION: 523 US 538 (1998)
ARGUED: Dec 09, 1997
DECIDED: Apr 29, 1998

Gregory A. Long - Argued the cause for the respondent
Holly D. Wilkens - Argued the cause for the petitioner

Facts of the case

In 1983, Thomas M. Thompson was convicted of the rape and murder of Ginger Fleischli in California state court. The special circumstance found by the jury of murder during the commission of rape made Thompson eligible for the death penalty. In 1995, a federal District Court invalidated Thompson's death sentence by granted relief on his rape conviction and the rape special circumstance. In reversing, the Court of Appeals reinstated Thompson's death sentence, noting that the State presented strong evidence of rape at trial. The Court of Appeals then issued a mandate denying all habeas relief. Two days before Thompson's execution, the Court of Appeals recalled its mandate and granted Thompson relief. The appellate court found that Thompson was denied effective assistance of counsel at trial.


Did the Court of Appeal's order recalling its mandate denying Thomas M. Thompson all habeas relief violate 28 USC section 2244(b) as amended by the Antiterrorism and Effective Death Penalty Act of 1996? Was the order an abuse of the appellate court's discretion?

Media for Calderone v. Thompson

Audio Transcription for Oral Argument - December 09, 1997 in Calderone v. Thompson

William H. Rehnquist:

We'll hear argument next in Number 97-215, Arthur Calderon v. Thomas Thompson.

Ms. Wilkens.

Holly D. Wilkens:

Mr. Chief Justice and may it please the Court--

When this Court denied Thomas Thompson's petition for certiorari on June 2, 1997, his first Federal habeas proceedings became final.

From that point forward, any litigation in either the district court or the court of appeals would constitute an impermissible second bite of the apple unless the specific limitations of the Effective Death Penalty Act were met.

It makes no difference if that second bite of the apple occurs upon the motion of the inmate or on the court's own motion.

The adverse effect upon the State's judgment and the State's interest in comity and finality of that judgment--

Sandra Day O'Connor:

Ms. Wilkens, what are the limits on a court of appeals' power and authority to recall a mandate sua sponte?

Do we know?

I mean, what cases do we look to to determine that?

Holly D. Wilkens:

--Well, first, in distinguishing between an ordinary civil case and a 2254 case I don't perceive any limitations on an ordinary civil case.


Sandra Day O'Connor:

Even after a judgment has become final?

Holly D. Wilkens:

--That's correct, Your Honor.

I note that there are these standards that have been cited in the cases that have been cited.

It is a very... apparently a very broad standard.

It's made on a case by case ad hoc decision with respect to exceptional or extraordinary circumstances.

Sandra Day O'Connor:

And what do we look to in the case of a habeas proceeding, which we've said is a civil action?

What do we look to there?

Holly D. Wilkens:

I would invite the Court to look to the Federal Rule of Appellate Procedure 22a, wherein Congress has recently delineated a role for the courts of appeal as a gatekeeper.

They have removed significantly the original jurisdiction for habeas corpus proceedings from the court of appeals and instead have transferred the screening process that was previously in the district courts, and they have placed that with the court of appeals, thereby significantly--

Sandra Day O'Connor:

Do you think that the new Federal Antiterrorism and Death Penalty Act speaks to the question of what a court of appeals can do concerning recalling its own mandate?

Holly D. Wilkens:

--Well, it does not specifically reference the recall of the mandate.

Sandra Day O'Connor:


Holly D. Wilkens:

It most assuredly speaks to finality, and, in fact, section 2244 as amended by the Effective Death Penalty Act is entitled finality, interjects res judicata into habeas corpus, and specifically delineates the narrow circumstances under which additional litigation will occur.

Anthony M. Kennedy:

Well, it talks about a second or successive habeas corpus application.

Here, the Ninth Circuit was quite explicit about saying that it was resting just on the previous application.

It added no new facts.

Suppose the three judge panel issues a mandate in a habeas corpus action and the very next day recalls its mandate because it made a mistake.

Is this a successive application?