Roeder v. Schnurr

Scott P. Roeder, Individually and as Next Friend of Unborn and Partially Born Individuals under Sentence of Death, Petitioner, v. Dan Schnurr, Warden, Hutchinson Correctional Facility, Respondent.

Civil Action No. 5:20-cv-03275-SAC

United States District Court, D. Kansas

July 30, 2021

** CAPITAL CASE ** Executions Scheduled: Daily

Scott P. Roeder #65192 Hutchinson Correctional Facility Pro Se and as Next Friend

PETITIONER'S REPLY TO RESPONDENT'S ANSWER

Petitioner Scott P. Roeder, respectfully submits to this Court his reply to respondent's answer (Doc. 27).

Comments on Facts of the Case

The factual findings of the Kansas Supreme Court (KSC) on direct appeal offered by the respondent as the “facts of the case” (Doc. 27, pp. 6-9) are conspicuously mired in prejudicial commentary: “From the record, one cannot discern whether Roeder grasped the irony of his testimony i.e., the only way that Roeder could kill the doctor in the name of his own God was to commit the murder in the house of Dr. Tiller's God.” See Doc. 27, p. 7 lines 29-32.

On the contrary, it is the KSC that failed to grasp the irony of Dr Tiller's demise. Dr. Tiller performed late-term executions. If the womb is likened to the inside of a church, then the birth canal may be likened to its foyer or narthex. In one manner of late-term execution, a child is delivered from the sanctuary of the womb and is lethally executed by manner of a wound made to the head in the birth canal. Hence, it is with great irony that Dr. Tiller received his poetic comeuppance by manner of a wound to the head made in a church foyer.

Petitioner submits that the overt willingness of the KSC to digress into prejudicial commentary casts reasonable doubt that its decision was based on law and facts alone. Instead, the KSC could not restrain its politically motivated indifference for petitioner's rights, not even when purporting to summarize the facts of the case. Such clear and convincing evidence of bias coming even from the ranks of the KSC should temper the Court's willingness to give “‘deference to [the] state court decisions' on the merits.” Frost v. Pryor, 749 F.3d 1212, 1222 (10th Cir. 2014) (citing Lockett v. Trammel, 711 F.3d 1218, 1230 (10th Cir. 2013)).

Comments on Availability of the Record

Respondent states (Doc. 27, p. 9, lines 14-17): “Respondent has submitted to this Court … his K.S.A. 60-1057 cases, Case Nos. 17-CV-19 and 17-CV-2373.” But it is not clear what respondent means by Case No. 17-CV-19. Besides Case No. 17-CV-2373, there was another case in the District Court of Sedgwick County, Kansas, styled by the petitioner as a K.S.A. 60-1507 case, Case No. 10-CV-882; however, respondent makes no mention of that case.

Comments on Standard of Review

Petitioner believes the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) is unconstitutional and that the Supreme Court should do away with it in favor of constitutional habeas corpus practices. AEDPA requires this Court to do two things it should not: by allowing the judicially-created doctrine of comity to suspend the federal privilege of habeas corpus, as if to circumvent the Suspension Clause under the guise of leaving a few small cracks in the floor; and, by requiring the federal judiciary to turn a blind eye to inequitable state conduct, also in the name of comity. Comity is not meant for either of those things. Unfortunately, though originally well-intentioned, the doctrine of comity has degraded into little more than a shameful conspiracy between state governments and the federal judiciary thanks to AEDPA.

The bar raised by AEDPA is quite fanciful indeed. It assumes pro se petitioners are legal geniuses with unlimited resources to divine the multifaceted ramblings of the American judiciary. Yet, humorously, with the shoe on the other foot, the states themselves are exempt from all of that.

As respondent acknowledges (Doc. 27, p. 10, lines 17-20):

A state court need not cite Supreme Court precedent to avoid running afoul of AEDPA-“indeed, it does not even require awareness of [Supreme Court cases], so long as neither the reasoning nor the result of the state-court decision contradicts them.” Early v. Packer 537 U.S. 3, 8, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002).

But with the shoe on the petitioner's foot, the utmost pedantic awareness of Supreme Court cases is required to avoid running afoul of AEDPA. Specifically, AEDPA will not allow a federal court to grant habeas corpus relief under 28 U.S.C. § 2254(d)(1) unless the petitioner shows that the state's adjudication of a claim “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.”

AEDPA's role reversal is a contradiction of legal common sense. Under AEDPA, the pro se petitioner must have comprehensive awareness of Supreme Court cases, but the state need not have any awareness at all. Legal common sense dictates the opposite.

In practice, AEDPA is a comedy of deference: if the state suggests a procedural default, refusing to rule on the merits of a claim, then the federal courts accept the suggestion and bar the claim from further consideration; if the state suggests counsel was not ineffective, the federal courts accept that suggestion too; and so on.

The problems with the culture of deference created by AEDPA run even deeper than its rote application. All too often the Supreme Court's frequent obscurity and piecemeal interpretation of federal law confuses the lower courts. As a consequence, AEDPA's notion of clearly established Federal law, as determined by the Supreme Court, can be inherently elusive. Hence, one of the deeper problems with AEDPA is that it endeavors to base matters on “clearly established” federal law as determined by a court which is all too often unclear.

Put another way, AEDPA allows the obscurity of the Supreme Court to work to the wrongful advantage of the state.

Unfortunately, the Supreme Court's frequent obscurity impacts AEDPA in other ways as well. For example, many of the myriad Supreme Court cases instructing the federal courts to apply a procedural default under AEDPA can be misunderstood as applying where they do not. When this happens, the comedy which is known as AEDPA takes its all too predictable course: the district court dismisses the petitioner's claims as procedurally barred without any adjudication on the merits, a certificate of appealability is denied and no counsel is appointed for appeal, the court of appeals denies a certificate of appealability, and the Supreme Court denies certiorari.

In other words, what is happening is that AEDPA's mantra of deference has led the lower courts to presume the Supreme Court has instructed deference even in cases where it has not clearly done so. Of course, upon petition for a writ of certiorari, in theory the Supreme Court could clarify itself, but it seldom takes the opportunity to do so. As Supreme Court Rule 10 explains, “A petition for a writ of certiorari is rarely granted when the asserted error consists of erroneous factual findings or the misapplication of a properly stated rule of law.”

All of this works to the wrongful advantage of the state.

As a case in point, in refusing to excuse on the basis of collateral-review ineffective assistance a procedural default asserted sua sponte against petitioner's legal indifference claim, the Court states on denial of reconsideration (Doc. 21, p. 2, line 21-p. 3, line 2):

In addition, when relying on ineffective assistance of counsel to excuse procedural default of a claim, “the assistance must have been so ineffective as to violate the Federal Constitution.” Edwards v. Carpenter, 529 U.S. 446, 451 (2000). As an independent constitutional claim, that ineffective assistance of counsel “generally must ‘be presented to the state courts as an independent claim before it may be used to establish cause for a procedural default.'” 529 U.S. at 452. Because petitioner has not presented to the state courts his claim that collateral-review counsel provided ineffective assistance, he may not use it here as cause for default.

The decision in Edwards is exemplary of Supreme Court obscurity in matters of habeas corpus. As Justice Breyer states in his concurrence, 529 U.S. at 454:

I believe the Court of Appeals correctly decided the basic question: “Whether a federal habeas court is barred from considering an ineffective-assistance-of counsel claim as ‘cause' for the procedural default of another claim when the ineffective-assistance claim is itself procedurally defaulted.” The question's phrasing itself reveals my basic concern. Although the question, like the majority's opinion, is written with clarity, few lawyers, let alone unrepresented state prisoners, will readily understand it. The reason lies in the complexity of this Court's habeas corpus jurisprudence -- a complexity that in practice can deny the fundamental constitutional protection that habeas corpus seeks to assure. Today's decision unnecessarily adds to that complexity and cannot be reconciled with our consistent recognition that the determination of “cause” is a matter for the federal habeas judge.

Though Justice Breyer fell short of saying few federal judges will readily understand the decision in Edwards, it is hard to imagine why this group would be exempt, given the premise that few lawyers will readily understand it. Yet inasmuch as the unrepresented state prisoner is unlikely to readily understand it, it is difficult for the present petitioner to determine whether the Court has applied Edwards correctly in this case. Unfortunately, AEDPA requires nothing more than the Court's word for it, regardless the merit of the...