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Government's Argument to Reverse Court Order Vacating Death

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Government's Argument to Reverse Court Order Vacating Death Nos. 12-1643, 12-8019 IN THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT _______________ GARY LEE SAMPSON, PETITIONER-APPELLEE V. UNITED STATES OF AMERICA, RESPONDENT-APPELLANT ____________ IN RE: UNITED STATES OF AMERICA, PETITIONER _______________ ON APPEAL FROM AN ORDER PURSUANT TO 28 U.S.C. §2255 ENTERED IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS VACATING A DEATH SENTENCE AND GRANTING A NEW CAPITAL PENALTY PHASE TRIAL; PETITION OF THE UNITED STATES FOR PERMISSION TO TAKE AN INTERLOCUTORY APPEAL; AND PETITION OF THE UNITED STATES FOR A WRIT OF MANDAMUS _______________ GOVERNMENT’S OPENING BRIEF AND PETITION _______________ CARMEN M. ORTIZ UNITED STATES ATTORNEY MARK T. QUINLIVAN ASSISTANT U.S. ATTORNEY JOHN JOSEPH MOAKLEY U.S. COURTHOUSE 1 COURTHOUSE WAY SUITE 9200 BOSTON, MASSACHUSETTS 02210 TABLE OF CONTENTS TABLE OF AUTHORITIES.......................................... v STATEMENT OF JURISDICTION ....................................1 STATEMENT OF ISSUES ...........................................2 STATEMENT OF THE CASE ........................................2 STATEMENT OF FACTS ...........................................5 A. The Offenses of Conviction ................................5 B. Proceedings in Sampson’s Criminal Case .....................8 C. Sampson’s Amended §2255 Motion ..........................9 D. The Evidentiary Hearings .................................11 1. The first evidentiary hearing ....................11 2. The second evidentiary hearing ..................15 3. The third evidentiary hearing ....................17 E. The District Court’s Memorandum and Order on Jury Claim ..................................... 18 F. The May 10, 2012 Memorandum and Order ............. 24 SUMMARY OF ARGUMENT....................................... 27 ARGUMENT..................................................... 33 -i- I. THIS COURT HAS JURISDICTION TO HEAR THE GOVERNMENT’S CHALLENGE TO THE DISTRICT COURT’S ORDER VACATING SAMPSON’S DEATH SENTENCE AND GRANTING HIM A NEW PENALTY PHASE TRIAL ..............33 A. This Court Has Jurisdiction Because the District Court’s Order Granting Sampson a New Penalty Phase Trial is a Final, Immediately Appealable Order ........................ 34 1. Legal Principles ...................................34 2. An order granting a new capital penalty phase proceeding is final and immediately appealable ....................38 a. An order granting a new capital penalty phase trial is best understood as an order granting a “new trial” under §2255 .................................39 b. The district court’s order is final because the §2255 proceeding has been completed ............ 46 c. Stitt and Hammer were wrongly decided ...........51 B. If the District Court’s Order is Deemed Interlocutory and Not Immediately Appealable, this Court Has Jurisdiction Under 28 U.S.C. §1292(b) ................................51 1. A §2255 proceeding is a “civil action” for purposes of §1292(b) ...............................52 a. Under Trenkler, a §2255 proceeding is a “civil action” ................................. 52 b. A §2255 proceeding is a “civil action” for appellate purposes .......................... 54 c. There is precedent for the grant of an interlocutory appeal in a §2255 action .............58 -ii- 2. The certification requirements are satisfied .............. 60 a. “Controlling Question of Law” ..................60 b. “Substantial Grounds for Difference of Opinion” .................................. 62 c. “Materially advance the ultimate termination of the litigation” ..............................63 C. If §2255 is deemed to be criminal in nature, this Court alternatively has jurisdiction under 18 U.S.C. §3731 ............ 65 D. This Court Can Exercise its Advisory Mandamus Authority ...... 68 II. THE DISTRICT COURT ERRED IN CONCLUDING THAT SAMPSON’S SIXTH AMENDMENT RIGHT TO AN IMPARTIAL JURY WAS VIOLATED AND IN GRANTING SAMPSON’S §2255 MOTION BASED ON A JUROR’S SO-CALLED “INFERABLE BIAS” .....................................................72 A. Preliminary §2255 Issues and Standard of Review ............. 72 B. The McDonough Test Requires a Showing of “Demonstrated Bias,” and Cannot Be Satisfied by a Showing of “Inferable Bias” ............................... 75 1. Legal Principles ...................................76 a. Actual and implied bias ........................76 b. McDonough ................................. 78 c. The theory of “inferable bias” ...................81 2. McDonough requires a showing of actual or implied bias, and cannot be satisfied by a showing of “inferable bias” .... 84 -iii- a. The district court misinterpreted the test in McDonough ............................... 86 b. Amirault and Dall do not support the district court’s interpretation of McDonough ............ 94 c. The “inferable bias” theory articulated in Torres does not apply when a defendant seeks to set aside a conviction based on juror bias. .................102 C. A Claim of Juror Bias Based Only on a Showing of “Inferable Bias” Should be Teague-Barred ...........................105 D. In Any Event, Constitutional Error Does Not Alone Justify §2255 Relief ..........................................107 CONCLUSION ..................................................108 CERTIFICATE OF COMPLIANCE .................................. 109 CERTIFICATE OF SERVICE ......................................110 -iv- TABLE OF AUTHORITIES Cases Agostini v. Felton, 521 U.S. 203 (1997) ..........................................49 Alternative System Concepts, Inc. v. Synopsys, Inc., 374 F.3d 23 (1st Cir. 2004) ....................................100 Amirault v. Fair, 968 F.2d 1404 (1st Cir. 1992) .............................77, 81, 85 Andrews v. United States, 373 U.S. 334 (1963) ...................................... passim Arizona v. Ideal Basic Industrial (In re Cement Antitrust Litigation), 673 F.2d 1020 (9th Cir. 1982) ................................... 60 Atkins v. Virginia, 536 U.S. 304 (2002) ..........................................43 Bank of New York v. Hoyt, 108 F.R.D. 184 (D.R.I. 1985) ................................ 60-61 Behrens v. Pelletier, 516 U.S. 299 (1996) ....................................... 59-60 Brecht v. Abrahamson, 507 U.S. 617 (1993) .........................................107 Bucci v. United States, 662 F.3d 18 (1st Cir. 2011), petition for certiorari filed (May 31, 2012) (No. 11A946, 12-5015). .........................74 Buchanan v. Kentucky, 483 U.S. 402 (1987) ..........................................43 -v- Bullington v. Missouri, 451 U.S. 430 (1981) ..........................................43 Butcher v. United States, 368 F.3d 1290 (11th Cir. 2004) .................................. 55 California v. Brown, 479 U.S. 538 (1987) ..........................................43 City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687 (1999) ..........................................40 Commonwealth v. Amirault, 399 Mass. 617, 506 N.E.2d 129 (1987) ...........................96 Conaway v. Polk, 453 F.3d 567 (4th Cir. 2006) .................................... 97 Conley v. United States, 415 F.3d 183 (1st Cir. 2005) ...................................107 Coopers & Lybrand v. Livesay, 437 U.S. 463 (1978) ..........................................59 Couch v. Telescope Inc., 611 F.3d 629 (9th Cir. 2010) .................................... 62 Crowley v. L.L. Bean, Inc., 303 F.3d 387 (1st Cir. 2002) ....................................95 Cullen v. Pinholster, 131 S. Ct. 1388 (2011) ........................................43 Curtis v. Duval, 124 F.3d 1 (1st Cir. 1997) ......................................75 Dall v. Coffin, 970 F.2d 964 (1st Cir. 1992) ................................ passim -vi- Darden v. Wainwright, 477 U.S. 168 (1986) ..........................................43 David v. United States, 134 F.3d 470 (1988) ..........................................73 DeBurgo v. St. Amand, 587 F.3d 61 (1st Cir. 2009) ..................................95, 96 Dennis v. United States, 339 U.S. 162 (1950) ..........................................92 Ellis v. United States, 313 F.3d 636 (1st Cir. 2002) ...................................107 Estelle v. Smith, 451 U.S. 454 (1981) ..........................................43 Ferrara v. United States, 456 F.3d 278 (1st Cir. 2006) ....................................73 Fields v. Brown, 503 F.3d 755 (9th Cir. 2007) .............................77, 97, 103 Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368 (1981) ..........................................59 Florida v. Nixon, 543 U.S. 175 (2004) ..........................................43 Government of Virgin Islands v. Felix, 569 F.2d 1274 (3d Cir. 1978) ...................................87 Heflin v. United States, 358 U.S. 415 (1959) .......................................53, 57 Hill v. United States, 368 U.S. 424 (1962) ..........................................72 -vii- In re: Bank of New England Corp., 364 F.3d 355 (1st Cir. 2004) ...................................100 In re Heddendorf, 263 F.2d 887 (1st Cir. 1959) ....................................62 In re Sony BMG Music Entertainment, 564 F.3d 1 (1st Cir. 2009) ......................................68 J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994) ..........................................76 Johnson v. Luoma, 425 F.3d 318 (6th Cir. 2005) .................................... 96 Jones v. Cooper, 311 F.3d 306 (4th Cir. 2002) .................................81, 97 Jones v. United States, 527 U.S.
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