No. 01-1757	

In The 
Supreme Court of the United States

MARION R. STOGNER, 
			Petitioner,

v.

STATE OF CALIFORNIA, 
			Respondent.	
			
On Petition For Writ Of Certiorari
To The California Supreme Court	
			
REPLY BRIEF FOR THE PETITIONER	

	Roberto Najera 
Counsel of Record
Elisa Stewart
Office of the Alternate Defender
610 Court Street
Martinez, California  94553
 (925) 646-1740
	Counsel for Petitioner

TABLE OF CONTENTS

REPLY	1

ARGUMENT	2

CONCLUSION	5

TABLE OF AUTHORITIES

Cases

Albright v. Oliver, 510 U.S. 266 (1994)	2
Albright v. Oliver, 510 U.S. 266, 282 (1994)	2
Blackburn v. Superior Court, 21 Cal.App.4th 414, 428 (1993)	5
Board of Regents v. Roth, 408 U.S. 564, 576-77 (1972)	6
Brown v. Walker, 161 U.S. 591, 597 (1896)	5
Carmell v. Texas, 529 U.S. 513, 536-37 (2000)	2
County of Sacramento v. Lewis, 523 U.S. 833 (1998)	2
Daniels v. Williams, 474 U.S. 327, 331 (1986)	7
Dash v. Van Kleeck, 7 Johns 477 (1811.)	3
Dinh v. Rust International Corp., 974 F.2d 500 (4th Cir. 1992)	6
Ex Parte Louis Cohen, 104 Cal. 524 (1894)	5
Falter v. United States, 23 F.2d 420 (1928)	5
Falter v. United States, 23 F.2d 420 (2d. Cir. 1928)	2
Foucha v. Louisiana, 504 U.S. 71, 80 (1992)	7
Graham v. Connor, 490 U.S. 396 (1989)	2
Hale v. Henkel, 201 U.S. 43 (1906)	5
Hart Moore v. State, 43 N.J.L. 203 (1881)	3, 4
Pendergast v. United States, 317 U.S. 412 (1942)	5
People v. Frazer, 21 Cal.4th 737 (1999)	3, 6
People v. Frazer, 21 Cal.4th 737, 773 (1999)	8
See Adams v. Woods, 6 U.S. 336 (1805)	4
Shadborne –Vinton v. Dalkon Shield Claimants Trust, 60 F.3d 1071, 1073 (1995)	6
State v. Cookman, 127 Or.App. 283 (1994)	3, 4
State v. Martin, 138 N.H. 508 (1994.)	3
State v. Sneed, 25 Tex.Supp. 66 (1860)	3
U.S. v. Lanier, 520 U.S. 259,272 fn 7 (1997)	2
U.S. v. Salerno, 481 U.S. 739, 750 (1987)	7
Zinermon v. Burch, 494 U.S. 113, 125 (1990)	7

REPLY

The state claims that Petitioner is vested with no fundamental right in this case pursuant to an expired statute of limitations.  Even were that true, they can assert no basis for a claimed “retention” of an expired power to prosecute.  Indeed, such a proposition is contrary to all accepted views of constitutional government.  For if the inalienable rights of life and liberty are vested in the people, and if in limited circumstances the state is permitted to curtail that liberty, when that permission ends, even if by nothing more than an act of legislation, then the state is without the power to act.  Thus even if it can be agreed that an accused is not “vested” with a statute of limitations defense, that does not mean that the state has vested itself with the power to revive an expired claim.  

The state further argues that this Court must limit its analysis to the Ex Post Facto Clause, as it is the only available remedy to Petitioner’s claim.  It is without question that a violation of the Constitution can occur under more that one provision or amendment.  Nothing in Graham v. Connor, 490 U.S. 396 (1989) would require otherwise, and subsequent cases such as U.S. v. Lanier, 520 U.S. 259,272 fn 7 (1997) and County of Sacramento v. Lewis, 523 U.S. 833 (1998) have made this clear.  Indeed one of the principle cases relied on by Petitioner, Carmell v. Texas, 529 U.S. 513, 536-37 (2000), noted that simply because a law might be a bill of attainder did not mean it was not an ex post fact law as well.  Quite clearly then if this Court concludes that Petitioner has not shown that this legislation violates the ex post facto clause, then it should be analyzed under substantive due process principles.  See Albright v. Oliver, 510 U.S. 266 (1994).

ARGUMENT

	Petitioner Marion Stogner has the fundamental right to be free from prosecution, twenty-two years after the statute of limitations has run.  See Falter v. United States, 23 F.2d 420 (2d. Cir. 1928); State v. Sneed, 25 Tex.Supp. 66 (1860); Hart Moore v. State, 43 N.J.L. 203 (1881); State v. Cookman, 127 Or.App. 283 (1994); State v. Martin, 138 N.H. 508 (1994.)

Throughout the history of the United States, the various states and federal government have established statutes of limitation for various crimes.  Since the country’s earliest days the meaning of these statutes has been unambiguous.  When the statute of limitation has expired, so too has the cause of action.  

So clear has this rule been that throughout the country’s history it has only been disputed on rare occasions.  Until Frazer each such attempt to impose retroactive legislation to expired statute of limitations cases was rejected.  See People v. Frazer, 21 Cal.4th 737 (1999).  A challenge was proffered in 1860 in Texas, and rejected.  See State v. Sneed, 25 Tex.Supp. 66 (1860) (“The state having neglected to prosecute within the time prescribed for its own action, lost the right to prosecute the suit.”)  There were similar challenges with similar results in New Jersey in 1881 and in Oregon in 1994.  See Hart Moore v. State, 43 N.J.L. 203 (1881) (“Until the fixed period has arrived, the statute is a mere regulation of the remedy, and, like other such regulations, subject to legislative control; but afterwards, it is a defence, not of grace, but of right; not contingent, but absolute and vested; and, like other such defences, not to be taken away by legislative enactment.”); State v. Cookman, 127 Or.App. 283 (1994) (“In short, we cannot accept the proposition that the state has the supernatural power to exhume and revitalize a prosecution that is dead and buried.”)

That even our most learned jurists believed it to be unassailable is clear from the writings of Chief Justice John Marshall.  See Adams v. Woods, 6 U.S. 336 (1805)(“This would be utterly repugnant to the genius of our laws.  In a country where not even treason can be prosecuted after a lapse of three years …”); Pendergast v. United States, 317 U.S. 412 (1942); see also Falter v. United States, 23 F.2d 420 (1928).  Case law is replete with examples of citizens forfeiting their Fifth Amendment rights precisely because they could no longer be prosecuted where the statute of limitations applied, and therefore were not subject to incriminating themselves in a criminal prosecution.  See Brown v. Walker, 161 U.S. 591, 597 (1896); Hale v. Henkel, 201 U.S. 43 (1906); Ex Parte Louis Cohen, 104 Cal. 524 (1894); Blackburn v. Superior Court, 21 Cal.App.4th 414, 428 (1993).  The holdings of these cases are clear and to the point.  The existence then of criminal statutes of limitations and their finality is indeed so deeply rooted in our traditions and consciousness as to trigger the relinquishment of other rights routinely afforded to criminal defendants.  

	Despite the opposition’s contention, at no point in our history has the opposite rule been shown to exist.  See People v. Frazer, 21 Cal.4th 737 (1999).  Indeed in only a limited line of civil cases has the statute of limitations been deemed subject to retroactivity, and only where the underlying right was conclusively shown not to have been destroyed.  See Campbell v. Holt, 6115 U.S. 620 (1885).

In contrast, California’s own historical practice reflects the view that the criminal statute of limitations destroys not only a remedy but also the right of action itself.  Moreover, by conferring a substantial benefit to the accused this Court must also examine whether this benefit itself can be taken without due process of law.  See Board of Regents v. Roth, 408 U.S. 564, 576-77 (1972)

CONCLUSION

“The Due Process Clause contains a substantive component that bars certain arbitrary, wrongful government actions regardless of the fairness of the procedures used to implement them.”  Zinermon v. Burch, 494 U.S. 113, 125 (1990) quoting Daniels v. Williams, 474 U.S. 327, 331 (1986).  This Court has “always been careful not to ‘minimize the importance and fundamental nature’ of the individual’s right to liberty.”  Foucha v. Louisiana, 504 U.S. 71, 80 (1992); quoting U.S. v. Salerno, 481 U.S. 739, 750 (1987).   

	In Petitioner’s case, not only has California put a period at the end of the time by which a prosecution could have been instituted, they, in effect, put an exclamation point when they reaffirmed the termination date as codified in Penal Code section 805.5.  California has stated in no uncertain terms that their power to prosecute has ended.  Simultaneously, they have decided that Petitioner has been conferred thereby a substantial right.  His liberty interest is then inviolate.  The state has retained no power upon which it can infringe Petitioner’s liberty interest.  “In our society liberty is the norm.”  Salerno at 755.

For all the foregoing reasons, this Petition for Writ of Certiorari should be granted.

Dated this 16th day of October, 2002

	Respectfully submitted,

	________________________________
	Roberto Najera (Counsel of Record)
          Elisa Stewart
	Office of the Alternate Defender
	610 Court Street
	Martinez, California  94553
	(925) 646-1740
	Counsel for Petitioner