source: Caselaw Access Project

author: PEREZ-GIMENEZ, District Judge.

license: Public Domain

text:
    Miguel A. Hernandez AGOSTO, President of the Senate of Puerto Rico, Plaintiff, v. Carlos Romero BARCELO, Governor of the Commonwealth of Puerto Rico, Defendant.
    Civ. No. 84-2186(PG).
    United States District Court, D. Puerto Rico.
    Sept. 27, 1984.

      Amaneio Arias Cestero, Santurce, P.R., Hughes, Hubbard & Reed, Washington, D.C., for defendant.
    Marcos Ramirez, Hato Rey, P.R., for plaintiff.
   OPINION AND ORDER

PEREZ-GIMENEZ, District Judge.

The plaintiff has moved for a remand of this case to the Superior Court of Puerto Rico. The defendant (hereafter “the Governor”) has opposed the motion, and the Court held a hearing on the issues on September 7, 1984. Having carefully considered the briefs and arguments for both sides, the Court concludes that this case was properly removed and denies the motion to remand.

I

This ease grows out of the killing of two men by the police at Cerro Maravilla on July 25, 1978. Charges of police misconduct and of an official cover-up have spawned various investigations and criminal indictments. Among the investigations is one being conducted by the Judiciary Committee of the Senate of Puerto Rico. That investigation began in 1981 pursuant to Senate Resolution No. 91, which directed the Committee (1) to submit to the Senate recommendations for legislation and (2) to report to the Senate on the Cerro Maravilla incident and recommend how best the Senate could disseminate the information to the public. The Committee’s investigation has included dramatic hearings televised throughout Puerto Rico.

On April 27, 1984, the Committee, through its Chairman, served a subpoena on the Governor of Puerto Rico demanding the production of various documents and other information. The subpoena set a return date of May 11, 1984.

On May 11, 1984, Virgilio Ramos González, counsel to the Governor, wrote to the Committee on behalf of the Governor. He indicated that the Governor refused to comply with the subpoena on a number of different grounds. (The grounds were described in detail in a lengthy opinion from the Secretary of Justice to the Governor, dated May 9, 1984, which Mr. Ramos attached to his May 11 letter.) First, through Mr. Ramos, the Governor asserted that he and his aides had already produced much of the information subpoenaed in response to earlier requests from the Committee. To the degree the subpoena asked for new material, the Governor objected that it sought information that was irrelevant to the investigation and that the demand for documents was unreasonable, oppressive, arbitrary and burdensome. Second, the Governor contended that the subpoena has been improperly issued because, inter alia, the Committee has prevented Senators from the parliamentary minority party from participating in the Committee’s proceedings and because the Committee allegedly lacks the authority to compel compliance with a subpoena once the Legislative Assembly has adjourned sine die in anticipation of a general election, which it did on April 30. The Committee’s authority lapsed, the Governor asserted, both because the investigation could no longer serve the purposes for which it had been authorized and because the Senate lacked the power to extend the life of one of its committees past such an adjournment. Third, and most importantly for present purposes, the Governor asserted that the Committee lacked authority under the “separation of powers” to demand that he produce confidential information and that the subpoena sought material protected by executive privilege and other similar privileges of the executive branch.

On May 14, 1984, the Committee (allegedly still acting without allowing any members of the minority party to participate) passed a resolution calling upon the plaintiff, in his capacity as President of the Puerto Rico Senate, to seek judicial enforcement of the April 27 subpoena. However, it was not until August 20, 1984, that the plaintiff petitioned the Superior Court of Puerto Rico in an effort to enforce the subpoena. The petition was considered on an ex parte basis, and on August 21, 1984, the Superior Court issued an ex parte order directing the Governor to comply with the subpoena in full by August 30, 1984.

Immediately upon notification of those proceedings and of the court order against him, the Governor filed a petition removing the case to this Court. He also filed a motion seeking a stay of the August 21 order pending submission of a motion to vacate that order. The plaintiff then filed a motion to remand this case to the Superi- or Court. On August 28, this Court issued an Order to Show Cause, directing the Governor to show why the case should not be remanded to the Superior Court. In that same Order, the Court stayed the Superior Court’s August 21 order until this Court “has had an opportunity to hear arguments of counsel and consider the matters presented to it by this case.” The Governor filed a brief in opposition to remand on September 5, and the hearing was held as scheduled on September 7, at which both parties appeared through counsel.

II

Section 1441 of Title 28, United States Code, governs the removal of this case. Section 1441(a) states that:

“any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant ... to the district court of the United States for the district and division embracing the place where such action is pending.”

Section 1441(b) reiterates that

“any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without re'gard to the citizenship or residence of the parties.”

Two issues, therefore, must be addressed in determining whether this case was properly removed from the Superior Court or must be remanded to that court. First, whether the plaintiff’s petition for enforcement of a legislative subpoena is a “civil action” within the meaning of Section 1441. Second, whether this, is a case “arising under” the laws of the United States so that this Court would have had original jurisdiction if the plaintiff had chosen to commence the case here. Because the Court answers both questions in the affirmative, it concludes that removal was proper.

A.

Although the Court has not found any case squarely on point, and the parties have not referred the Court to any precise precedent, the Court concludes that Congress intended to use the term “civil action” in Section 1441(a) in its broadest possible scope. Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction § 3721 at 524 (1976). Indeed, the plaintiff here apparently does not deny that his subpoena enforcement petition is a “civil action” for this purpose.

As used in Section 1441, “ ‘civil action’ is a civil suit.” Stoll v. Hawkeye Casualty Co., 185 F.2d 96, 98 (8th Cir.1950). The term “suit,”, in turn,

“is certainly a very comprehensive one, and is understood to apply to any proceeding in a court of justice, by which an individual pursues that remedy in a court of justice which the law affords him. The modes of proceeding may be various, but if a right is litigated between parties in a court of justice, the proceeding by which the decision of the court is sought is a suit.” Weston v. City of Charleston, 2 Pet. 449, 464, 7 L.Ed. 481 (1829) (per Marshall, G.J.).

This case presents just such an instance in which the plaintiff seeks a remedy-, enforcement of a subpoena, in a civil proceeding; that application requires adjudication of a claim of right, the right to compel the production of the documents in question.

The fact that the proceeding began on an ex parte basis does not affect this analysis. The initial proceeding in this case may have occurred on an ex parte basis, but the action eventually requires a confrontation between the plaintiff and defendant (on a motion to vacate or a contempt proceeding), and that confrontation would involve an adjudication of their respective rights in a civil proceeding. Plaintiff’s petition, therefore, falls within the meaning of “civil action.”

The removal statute, in fact, expressly contemplates the removal of such a matter. Section 1446(b) states that a petition for removal “of a civil action or proceeding” must be filed by the defendant within thirty days from the time that the defendant receives a copy of the “initial pleading,” “through service or otherwise,” or receives “service of summons” without the initial pleading where that is permitted by the local courts. The statute, therefore, expressly envisions cases where the defendant has not yet had an opportunity to appear at the time of removal or has not yet even been served with process or with a pleading.

This analysis is confirmed by the courts’ consistent recognition that proceedings which begin on an ex parte basis are “civil actions.” First, it is well settled that a “civil action” under the federal-question jurisdiction statute, 28 U.S.C. § 1331, includes proceedings in which an ex parte order such as a temporary restraining order or a writ of attachment issues before the defendant has had an opportunity to respond to the “initial pleading” or even to appear. The provisions of the removal statute relied upon in this case are essentially in pari materia with the federal-question original jurisdiction provisions of 28 U.S.C. § 1331. Debevoise v. Rutland Railway Corp., 291 F.2d 379, 380 (2d Cir.), cert. denied, 368 U.S. 876, 82 S.Ct. 123, 7 L.Ed.2d 77 (1961); see, Wright, Miller & Cooper, supra, § 3722 at 556. The Supreme Court has repeatedly held that Congress made the rémoval statute co-extensive with the grant of federal-question jurisdiction. See, e.g., Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U.S. 1, —, 103 S.Ct. 2841, 2845, 77 L.Ed.2d 420 (1983). Furthermore, when a term is used in different statutes but in the same context and in a similar manner, the courts are to presume that Congress intended the later use of the term to be construed in the same way as its earlier use. Oscar Mayer & Co. v. Evans, 441 U.S. 750, 756, 99 S.Ct. 2066, 2071, 60 L.Ed.2d 609 (1979); Northcross v. Memphis Board of Education, 412 U.S. 427, 428, 93 S.Ct. 2201, 2202, 37 L.Ed.2d 48 (1973). Therefore, the term “civil action” under § 1441 encompasses proceedings that may have begun on an ex parte basis if the Court would have had federal-question jurisdiction over the application, as the Court concludes (in Part B, infra) is the case here.

Second, and most compelling, the removal statutes have been construed to apply to garnishment and attachment proceedings, which routinely commence with an application for, and issuance of, an ex parte order. See, e.g., Williams v. Williams, 427 F.Supp. 557, 560 n. 8 (D.Md.1976); see generally, Wright, Miller & Cooper, supra, § 3721 at n. 40. In fact, the only issue which has caused difficulty for the courts in such cases is whether the attachment proceedings are merely “ancillary” to the main action; they have not been concerned by the ex parte initiation. Id. In this case, we are not facing an ancillary proceeding of any sort: the petition filed by the plaintiff triggered the need to adjudicate the rights as between the parties in a civil proceeding. For all these reasons, therefore, this Court is convinced that this judicial proceeding is “civil action” within the meaning of Section 1441(a).

B.

Plaintiff vigorously contends that there is no federal-question jurisdiction to entertain this proceeding. At the hearing, counsel for plaintiff argued strenously that this Court cannot have jurisdiction because federal law does not create a cause of action authorizing the Puerto Rico Senate or its committees to sue for enforcement of legislative subpoenas. That, however, is not the controlling inquiry.

The issue of federal-question jurisdiction cannot be addressed successfully with facile analysis. As the United States Supreme Court only recently reemphasized, “the statutory phrase ‘arising under the Constitution, laws or treaties of the United States’ has resisted all attempts to frame a single, precise definition for determining which cases fall within, and which cases fall outside, the original jurisdiction of the district courts.” Franchise Tax Board, supra, 463 U.S. 1, —, 103 S.Ct. at 2846. Nevertheless, the Supreme Court carefully pointed out in that case, on which plaintiff places heavy reliance, that federal-question jurisdiction is not limited to instances in which federal law “creates the cause of action.” Id. at 2846. Instead, there is federal jurisdiction over a claim, even if state law creates the underlying right to seek relief, “where the vindication of a right under state law necessarily turned on some construction of federal law.” Id. Phrased another way, if the plaintiff’s “right to relief under state law . requires resolution of a substantial question of federal law in dispute between the parties,” then a federal court has jurisdiction to resolve the controversy. Id. at 2848; see also, Gully v. First National Bank, 299 U.S. 109, 112, 57 S.Ct. 96, 97, 81 L.Ed. 70 (1936); T.B. Harms Co. v. Eliscu, 339 F.2d 823, 827 (2d Cir.1964), cert. denied, 381 U.S. 915, 85 S.Ct. 1534, 14 L.Ed.2d 435 (1965) (“a case may ‘arise under’ a law of the United States if the complaint discloses a need for determining the meaning or application of such á law”); Puerto Rico v. Sea-Land Service, Inc., 349 F.Supp. 964, 968 (D.P.R.1970). With these guides in mind, we now turn to an analysis of the case before us.

Plaintiff’s petition for enforcement, at bottom, is a claim that a committee of the Puerto Rico Senate had the legal power to issue the April 27 subpoena to the Governor and has the right to judicial aid in requiring the Governor to comply with it. The Governor declined to produce the information that had not already been turned over, resting on the separation of powers between the branches of government as a basis for refusing to do so. The issue raised by the petition, therefore, is whether the legislature has the authority to overcome the autonomy of the executive branch and to enlist the judicial branch’s assistance in compelling the Governor to turn over material that he has decided, as the head of a coordinate branch of the government, not to release voluntarily. The plaintiff’s claim cannot be resolved without settling issues concerning the powers of the branches of the Puerto Rico government with respect to one another.' These issues are controlled by federal law and arise as part of plaintiff’s claim of right, not merely by way of defense.

We turn first to the reasons why federal law governs the determination of the relative rights and obligations of the political branches of the Puerto Rico government when those branches are in conflict. The Puerto Rico Constitution exists by virtue of the 1950-52 “Compact” between the United States and Puerto Rico. That Compact is presently embodied in the Puerto Rico Federal Relations Act, 48 U.S.C. § 731b et seq. That Act placed— and continues to place — certain restrictions on the government that was to be established, including maintenance of a tripartite government based on principles of separation of powers. The Act requires “a republican form of government,” 48 U.S.C. § 731c, the hallmark of which is the separation of powers among coordinate branches of government. See, Buckley v. Valeo, 424 U.S. 1, 119, 96 S.Ct. 612, 682, 46 L.Ed.2d 659 (1976); United States v. Nixon, 418 U.S. 683, 705-14, 94 S.Ct. 3090, 3106-10, 41 L.Ed.2d 1039 (1974); In Re Duncan, 139 U.S. 449, 461, 11 S.Ct. 573, 577, 35 L.Ed. 219 (1891); Minor v. Happersett, 88 U.S. (21 Wall.) 162, 175-76, 22 L.Ed. 627 (1875); see also, The Federalist, No. 9 at 72; No. 47 at 301; No. 51 at 321; No. 66 at 401 (New Amer.Lib.Ed.1961); see generally, Luis v. Dennis, 576 F.Supp. 733 (D.V.I.1983) (doctrine of separation of powers underlies división of government into executive, legislative and judicial branches).

The Puerto Rico Constitution in fact established such a government, including the same separation of powers that is embodied in the United States Constitution. The Constitution went into effect, moreover, only because of the formal approval of Congress and the President, which approval was based, in part, on the adoption of the same separation of powers as is part of the United States Constitution in satisfaction of the requirement of a “republican form of government.” See, H.R. No. 82-1832, 82d Cong., 2 Sess. (1952), reprinted in (1952) U.S.Code Cong. & Admin.News 1892, 1898, 1900, 1902.

Moreover, that approval was conditioned on the proviso that the people of Puerto Rico add a specific amendment to their Constitution, stating that

“Any amendment or revision of this constitution shall be consistent with the resolution enacted by the Congress of the United States approving this constitution, with the applicable provisions of the Constitution of the United States, with the Puerto Rican Federal Relations Act and with Public Law 600, Eighty-First Congress, adopted in the nature of a compact.” P.L. 82-447, reprinted in (1952) U.S.Code Cong. & Admin.News 321.

In accordance with that mandate, such a provision was added to the Puerto Rico Constitution (Art. VII, § 3). Since the basic terms of the Compact continue in force as part of the Puerto Rico Federal Relations Act, the provisions of the Puerto Rico Constitution, including the relationships among the branches of the Puerto Rico Government, are presently and permanently restricted by federal law and federal principles.

Because the powers of the branches of Puerto Rico government vis-a-vis one another continue to be governed by reference to the principles embodied in the underlying federal statutes, the power of the legislature to override or invade the prerogatives of the executive branch can only be determined by reference to controlling federal law. See, Springer v. Government of the Philippine Islands, 277 U.S. 189, 48 S.Ct. 480, 72 L.Ed. 845 (1928); Camacho v. Civil Service Commission, 666 F.2d 1257 (9th Cir.1982) (Commonwealth of the Northern Mariana Islands); cf. Luis v. Dennis, supra.

At the hearing on the motion to remand, counsel for the plaintiff insisted that it is not the business of the federal courts to assure the proper separation of powers within the Government of Puerto Rico. In two other cases in which the plaintiff here was a party, however, two other judges of this Court have reached precisely the opposite conclusion and have forcefully declared that under the system created by Congress and accepted by the people of Puerto Rico, the federal courts have the ultimate responsibility for maintaining the proper relationships between the executive and legislative branches when those branches become embroiled in a justiciable dispute, such as over the enforceability of a legislative subpoena to the Governor.

In Ana Culpeper v. Hernández Agosto, Civil No. 84-1586 (TR) (D.P.R. June 25, 1984), another member of this Court faced a similar ease involving the power of the legislature to compel a subordinate official of the executive branch to cooperate with a legislative investigation. The Court explicitly rejected the notion that the issue was exclusively one for the local Puerto Rico courts to decide, stating that “at least as regards unincorporated territories and ‘commonwealths,’ Congressional oversight pursuant to the Territorial Clause of the Constitution requires that federal courts guarantee separation of powers between the various branches of local government.” Slip op. at 6 (footnotes omitted). Similarly, in Martinez Acosta v. Hernández Agosto, 590 F.Supp. 144 (1984), another dispute over the power of legislative committees vis-a-vis executive branch officials, the Court recognized its obligation to “assume its traditionál role of referee between the Legislatúre and the Executive in an area where the Constitutional powers conflict.” at 149. While the Court concluded in that particular instance that no judicial action was warranted, it reaffirmed its jurisdiction to take action: “Courts must and shall flexibly oversee the legislative procedure to avoid crass abuses____ This separation of power concept is a balance which in reality is an aid to ensure that the rights of the people are paramount.” Id. at 149. The Court concluded, “We stress that judicial defence to the Legislature in the case at bar entails Judicial independence in refereeing the Executive and Legislative clashes.” Id. at 150.

This Court does not forecast how it will rule on the merits of the present dispute between a legislative committee and the Governor, but, as in those earlier cases, it is properly within the power and jurisdiction of the Federal Court to resolve the legal merits of the controversy. The question whether judicial action is appropriate to enforce' the plaintiff’s claim of right can only be answered by reference to principles of federal law.

Because issues of federal law so pervade and are integral to the determination of the plaintiff's right to the relief he seeks, the case “arises under” federal law within the meaning of 28 U.S.C. §§ 1331 and 1441. The fact that the complaint nominally asserts only a “state” law claim does not require a different conclusion, as a long line of precedents demonstrates. See, e.g., Avco Corp. v. Aero Lodge No. 735, 390 U.S. 557, 88 S.Ct. 1235, 20 L.Ed.2d 126 (1968); Oneida Indian Nation v. Oneida, 414 U.S. 661, 677, 94 S.Ct. 772, 782, 39 L.Ed.2d 73 (1974); Christopher v. Cavallo, 662 F.2d 1082 (4th Cir.1981); Sheeran v. General Electric Co., 593 F.2d 93, 96 (9th Cir.), cert. denied, 444 U.S. 868, 100 S.Ct. 143, 62 L.Ed.2d 93 (1979); North American Phillips Corp. v. Emery Air Freight Corp., 579 F.2d 229 (2d Cir.1978); Puerto Rico v. Sea-Land Service, Inc., supra; Sweeney v. Abramovitz, 449 F.Supp. 213 (D.Conn.1978); Chengfan Hsu v. Philippine Air Lines, Inc., 98 F.Supp. 805 (N.D.Cal.1951); Gates v. Council of City of Huntington, 93 F.Supp. 757 (S.D.W.Va.1950).

Perhaps the most important guidance is provided by the Supreme Court decision in Smith v. Kansas City Title & Trust Co., 255 U.S. 180, 41 S.Ct. 243, 65 L.Ed. 577 (1921), cited with approval in that Court’s recent Franchise Tax Board decision, 463 U.S. 1, —, 103 S.Ct. at 2846. The Court held in Smith that federal jurisdiction existed despite its agreement with Justice Holmes’ dissent that the cause of action was created by state law and turned at least in part on the powers of a board of directors under state law. The underlying issue of the plaintiff’s right to relief also required consideration of federal law issues —namely, the constitutional validity of an act of Congress. Therefore, the case “arose under” federal law because federal law was “directly-drawn in question.” 255 U.S. at 201, 41 S.Ct. at 245.

Nothing in Gully v. First National Bank, supra, on which plaintiff relies, contradicts the conclusion that this Court has jurisdiction over this case. There, the plaintiff sought to collect taxes owed by a national bank. The bank argued that simply because the right to tax national banks derived from a federal statute, federal-question jurisdiction existed and the case could be removed. However, there was no question in the case about the right of the State to collect taxes; the federal law was therefore irrelevant to the controversy. The bank had asserted that “because permission at times is preliminary to action the two are to be classed as one.” 299 U.S. at 116, 57 S.Ct. at 99. The Court quite correctly held that merely because federal law “permitted” taxation, the ease did not thereby arise under federal law. To a similar effect, see Puerto Rico v. Russell & Co., 288 U.S. 476, 483, 53 S.Ct. 447, 449, 77 L.Ed. 903 (1933), where the Court held that federal-question jurisdiction did not exist where the plaintiffs right to assess the tax at issue derived from permission granted by federal statute, but no question of the interpretation or application of that statute was at issue.

Here, in contrast, the nature and extent of authority permitted and established by federal law is very much at issue in the plaintiffs case. The issues here are whether and to what extent the 1950-52 Compact empowers the Puerto Rico legislative committee to subpoena the Governor and requires the courts to come to the aid of the legislature in enforcing such a subpoena when the Governor has refused to yield additional confidential information voluntarily. These federal questions are not merely peripheral or defensive: they lie at the heart of the plaintiffs claim that he has the right to obtain a judicial order commanding the Governor to subordinate his judgments and prerogatives to those of a coordinate branch. Therefore, the clear weight of authority requires this Court to acknowledge its jurisdiction to hear this case as one “arising under” federal law.

Plaintiff argues for the opposite conclusion based principally on two propositions: (1) his cause of action is stated under 2 L.P.R.A. § 154a, and (2) he does not plead a federal law issue on the face of his complaint. However, his reasoning is founded upon two misunderstandings of the precedents guiding the proper analysis of federal jurisdiction.

First, plaintiff appears to believe that federal law must “create” the cause of action pleaded in order for federal-question jurisdiction to exist. That test, originally articulated by Justice Holmes in American Well Works Co. v. Layne & Bowler Co., 241 U.S. 257, 260, 36 S.Ct. 585, 586, 60 L.Ed. 987 (1916), however, “is more useful for describing the vast majority of cases that come within the district courts’ original jurisdiction than it is for describing which cases are beyond district court jurisdiction.” Franchise Tax Board, supra, 463 U.S. 1, —, 103 S.Ct. at 2846. Confirmation of the limited usefulness of the “cause of action” test is found in Smith v. Kansas City Title & Trust Co., supra. There, Justice Holmes argues in dissent that there was no federal-question jurisdiction to support removal because the complaint clearly stated a cause of action only under state law. The majority of the Supreme Court, however, upheld removal of the case because federal-question jurisdiction does not depend solely on whether the complaint rested on a cause of action created by state law. See p. 1397 supra.

Instead, the test stated in Gully v. First National Bank, supra, more accurately states the necessary relationship between the cause of action and the federal issue which establishes federal-question jurisdiction: the issue of federal law must be “an element, and an essential one, of the plaintiff’s cause of action,” even if state law creates the cause of .action. 299 U.S. at 112, 57 S.Ct. at 97. Federal-question jurisdiction exists where the plaintiff’s claim “will be supported if the Constitution or laws of the United States are given one construction or effect, and defeated if they receive another.” Id. That is precisely the situation presented in this case, because plaintiff’s ruling on the scope of authority ceded to the legislative committee under federal law.

Second, the plaintiff relies on his interpretation of the “well-pleaded complaint” rule to argue that, because his petition does not, on its face, allege any issue of federal law, but rather merely seeks enforcement of the subpoena under 2 L.P. R.A. § 154a, no federal-question jurisdiction can exist. However, the “lack of any reference to federal law in the complaint is not controlling.” North American Phillips Corp. v. Emery Air Freight Corp., supra, 579 F.2d at 233. The test is “whether a federal claim is necessarily presented, even if the plaintiff has couched his pleading exclusively in terms of state law.” In re Carter, 618 F.2d 1093, 1101 (5th Cir.1980), cert. denied, 450 U.S. 949, 101 S.Ct. 1410, 67 L.Ed.2d 378 (1981). Claims with a “sufficient federal character” are subject to removal, “regardless of plaintiff’s characterization” or “artful pleading.” Federated Department Stores, Inc. v. Moitie, 452 U.S. 394, 397 n. 2, 101 S.Ct. 2424, 2427 n. 2, 69 L.Ed.2d 103 (1981).

An examination of the Supreme Court’s discussion of the “well-pleaded complaint rule” in the Franchise Tax Board decision clarifies the meaning of that doctrine: it is merely another way of stating the principle that jurisdiction may not be based on federal issues that arise solely as a matter of defense. 103 S.Ct. at 2846-48. It is not, as the plaintiff seeks to make it, a doctrine of formal pleading. Such an interpretation of the “well-pleaded complaint” rule would conflict with the most fundamental modern day principle of federal court jurisdiction— “notice pleading.” Notice pleading recognizes that what is critical in a complaint is the statement of alleged facts, not a legal theory organizing the facts. The Federal rules explicitly declare that a plaintiff is entitled to whatever relief is appropriate under the facts shown, whether or not demanded in his complaint. Rule 54(c), Fed. R.Civ.P.

Just as a plaintiff need not plead any legal theory in order to establish federal jurisdiction and a right to relief, the fact that the plaintiff does plead a particular statute or legal theory neither creates nor negates jurisdiction. See Hildebrand v. Honeywell, Inc., 622 F.2d 179, 181 (5th Cir.1980); Rohler v. TRW, Inc., 576 F.2d 1260, 1264 (7th Cir.1978); Thompson v. Allstate Insurance Co., 476 F.2d 746, 749 (5th Cir.1973). Rather, the court must determine for itself whether the facts alleged state a case falling within federal-question jurisdiction. Similarly, while the determination of jurisdiction that supports removal must be made from the facts raised by the plaintiff’s complaint, it is the Court’s responsibility to determine if those facts, as alleged, necessarily make the plaintiff’s right to any relief turn on the resolution of some disputed issue of federal law. If so, there is federal-question jurisdiction, which the defendant may invoke to support removal even if the plaintiff would prefer to press his claim in a local court.

Plaintiff argues that “[i]t would be patently absurd to argue that Plaintiff in this case is asserting any sort of right, privilege or immunity under the Constitution or any law of the United States” because his only statutory basis for seeking enforcement is 2 L.P.R.A. § 154a. For reasons already discussed, the existence of a state cause of action does not mean that, despite the central importance of a federal issue in determining the plaintiff’s right to relief, the case does not arise under federal law. Moreover, the fact that different remedies might be available in state court does not eliminate federal-question jurisdiction. See Avco Corp. v. Aero Lodge No. 735, supra, 390 U.S. at 561, 88 S.Ct. at 1237; Sheet Metal Workers International Assoc. v. Seay, 693 F.2d 1000, 1003-04, as modified, 696 F.2d 780 (10th Cir.1983); Suffolk v. Long Island Lighting Co., 549 F.Supp. 1250, 1257 (E.D.N.Y.1982). In fact, this Court has all the necessary authority to grant the plaintiff any relief that may be appropriate in this case if the plaintiff shows in a subsequent proceeding that he has a right to relief. See 28 U.S.C. § 1651 (All-Writs Act).

Second, as also explained earlier, jurisdiction does not depend on the plaintiff expressly “asserting” a right under federal law, but rather depends on whether the case “arises under” federal law because the determination of the plaintiff’s right to relief, exclusive of defenses, turns on federal law issues. The plaintiff argues that all federal issues here arise merely by way of defense. Even if that objection would be sound in the ordinary case seeking enforcement of a legislative subpoena, it is not true when the case concerns the right to enforcement of a legislative subpoena against the Governor, after the Governor has invoked the autonomy of his office as a reason for refusing to produce information. Such an enforcement action raises threshold issues of separation of powers and the proper limitations on the powers of each branch of government vis-a-vis the other branches.

The Senate Committee here demanded documents in its subpoena; the Governor asserted his right, as head of a coordinate branch of government, not to defer to the Committee’s demand. Once the Governor asserted a right not to release the information to the legislature — as he did here in the May 11 letter — the material is “ ‘presumptively privileged,’ ” and in order to obtain judicial enforcement of its position the legislature must bear the affirmative burden of showing as part of its case that-its need for the information is so great that the Court should disturb the status quo between the two branches and order disclosure. See Senate Select Committee on Presidential Campaign Activities v. Nixon, 498 F.2d 725, 730 (D.C.Cir.1974) (en banc); see also, United States v. Nixon, 418 U.S. 683, 708, 713, 94 S.Ct. 3090, 3107, 3110, 41 L.Ed.2d 1039 (1974). Under the principle of separation of powers, the legislature, acting through the plaintiff, must demonstrate why the Court should overturn the Executive’s determination of its prerogatives vis-a-vis the legislature’s demands. This requirement arises from the limitation placed on “a court’s power to review or interfere with the conclusions, acts or decisions of a coordinate branch of government made within its own sphere or authority.” Hamilton v. Verdow, 414 A.2d 914, 921 (Md.1980). Therefore, the separation of powers issues do not arise merely in the Governor’s defense to this action, but are an integral part of the plaintiff’s burden of showing that he has a right to obtain judicial enforcement of the subpoena against the Chief Executive. Hence, all of the requirements for federal-question jurisdiction are met here.

Ill

The Court concludes that this case was properly removed under 28 U.S.C. § 1441 and, therefore, DENIES the plaintiff’s motion to remand. There remains outstanding the Superior Court’s August 21 order directing the Governor to comply with the Committee’s subpoena in full. Obviously, at this point the Governor could not strictly comply with that order even if he wished to do so because it set August 30 as the date to hand over the material. In any event, as the Governor argued in his Motion for a Stay before this Court, the proper course is to allow the Governor an opporthnity to challenge the propriety of the enforcement order without requiring him to place himself in contempt of court. See United States v. Nixon, 418 U.S. 683, 689, 691-92, 94 S.Ct. 3090, 3098, 3099-3100, 41 L.Ed.2d 1039 (1974). Therefore, the Court will continue the stay of the August 21 order pending filing and disposition of a motion to vacate that order, on condition that the Governor file any such motion, with supporting papers, within ten days of the filing of this' Opinion and Order.

The related Complaint for Declaratory and Injunctive Relief filed by the Governor on September 5, 1984, against the President- of the Senate of Puerto Rico, the Chairman and members of the Judiciary Committee of the Puerto Rico Senate, under Civil Case No. 84-2248, is hereby consolidated with the case at bar.

IT IS SO ORDERED.

      . 48 U.S.C. § 864 makes the removal provisions of Title 28 applicable to removal from the courts of Puerto Rico to this Court.

      . Compare, e.g., U.S. Const., Art. I, § 1 with P.R. Const., Art. Ill, § 1 (legislative power); U.S. Const., Art. I, § 6 cl. 2 with P.R. Const., Art. Ill, § 15 (ineligibility and incompatibility clause); U.S. Const., Art. I, § 7 with P.R. Const., Art. Ill, § 19 (bicameral requirement and present-merit/veto clause); U.S. Const., Art. II, § 1 with P.R. Const., Art. IV, §§ 1 & 4 (executive power); U.S. Const., Art. II, § 2 with P.R. Const., Art. IV, § 4 cl. 3 & § 5 (appointments clause); U.S. Const., Art. I, § 9 cl. 3 with P.R. Const., Art. II, § 12 cl. 2 (bills of attainder); U.S. Const., Art. Ill, § 1 with P.R. Const., Art. V, § 1 (judicial power).


author: WARRINER, District Judge.

text:
    Linwood E. BRILEY v. E.L. BOOKER, Warden.
    Civ. A. No. 84-0590-R.
    United States District Court, E.D. Virginia, Richmond Division.
    Oct. 2, 1984.

      William H. Allen, William E. O’Brian, Jr., Timothy C. Hester, Covington & Burling, Washington, D.C., Deborah C: Wyatt, Charlottesville, Va., for plaintiff.
    James E. Kulp, Sr. Asst. Atty. Gen., Richmond, Va., for defendant.
   OPINION

WARRINER, District Judge.

On 21 September 1984 petitioner, by counsel, submitted his motion for a stay of execution and a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. It was filed on 24 September in forma pauperis. In view of the impending execution date the Court entered an order establishing an expedited briefing schedule on the date of submission. Respondents' submitted their reply in opposition to petitioner’s motion for a stay of execution on 25 September. On 26 September respondents submitted a motion to dismiss and a motion for summary judgment. Petitioner’s reply memorandum in support of the motion for a stay of execution was filed on 27 September and petitioner’s reply to respondents’ motion to dismiss and motion for summary judgment was submitted on 28 September. These motions, all filed in accordance with the briefing schedule, are ripe for consideration. The Court has jurisdiction pursuant to 28 U.S.C. § 2254.

PROCEDURAL HISTORY

Petitioner attacks a judgment of the Circuit Court of the City of Richmond dated 21 February 1980 wherein he was convicted of capital murder by a jury and was sentenced to death. Petitioner’s conviction and death sentence were affirmed by the Virginia Supreme Court on 26 November 1980. Briley v. Commonwealth, 221 Va. 532, 273 S.E.2d 48 (1980). The United States Supreme Court denied certiorari on 26 May 1981. 451 U.S. 1031, 101 S.Ct. 3022, 69 L.Ed.2d 400. Petitioner filed a petition for "writ of habeas corpus in the Circuit Court for the City of Richmond on 15 October 1981 which was denied on 18 December 1981. The Virginia Supreme Court denied the petition for appeal from the denial of the State habeas on 5 October 1982 and denied a petition for a rehearing on 3 December 1982. The United States Supreme Court denied certiorari on 18 April 1983. 460 U.S. 1103, 103 S.Ct. 1804, 76 L.Ed.2d 367.

Petitioner filed a federal petition for writ of habeas corpus in this Court on 12 May 1983. After an evidentiary hearing on 31 August 1983 and the filing of an amended petition on 16 September 1983, the petition was denied on 19 April 1984. Briley v. Bass, 584 F.Supp. 807 (E.D.Va.1984). Petitioner noted his appeal from this Court’s judgment on 27 April 1984 and this Court issued a certificate of probable cause on 29 April. On 7 August the United States Court of Appeals for the Fourth Circuit heard oral argument on petitioner’s appeal and shortly thereafter issued a stay of petitioner’s execution. The Court of Appeals affirmed the judgment of this Court denying the petition for a writ of habeas corpus on 23 August 1984. Briley v. Bass, 742 F.2d 155 (4th Cir.1984). A motion for rehearing, with suggestion of rehearing en banc, was filed with the Court of Appeals on 6 September. This motion was denied by order entered on 26 September. Petitioner has filed a petition for a writ of certiorari with the United States Supreme Court with respect to the affirmation by the Court of Appeals. The petition for a writ of certiorari is pending.

On 24 August petitioner filed a second habeas corpus petition in the Supreme Court of Virginia in which he raised as grounds for relief the claims which are now pending before this Court. The State habeas corpus petition was dismissed by the Virginia Supreme Court as being procedurally barred on 7 September 1984. On 10 September petitioner’s date of execution was re-set by the Circuit Court for the City of Richmond for 12 October 1984.

On 21 September, as noted, this petition was submitted.

RULE 9(b)

In their response of 26 September, respondents argue and ask for dismissal on the ground that petitioner has abused the writ of habeas corpus as contemplated by Rule 9(b) of Rules Governing 28 U.S.C. § 2254. The language of Rule 9(b) of the Rules Governing § 2254 is as follows:

A second or successive petition may be dismissed if the judge finds that it fails to allege new or different grounds for relief and the prior determination was on the merits or, if new and different grounds are alleged, the judge finds that the failure of the petitioner to assert those grounds in a prior petition constituted an abuse of the writ.

Petitioner had filed his original federal habeas corpus petition with this Court on 12 May 1983 and had submitted an amended petition on 16 September. This Court entered a judgment on the merits denying the petition as amended on 19 April 1984. ■In the present habeas corpus proceeding petitioner raises two issues based on case law and research .which he claims were first “developed” in the fall of 1983, after he had filed his original federal habeas petition with this Court.

The respondents have properly raised a Rule 9(b) argument and pursuant to Jones v. Estelle, 722 F.2d 159, 164 (5th Cir.1983), the petitioner bears the burden of showing by a preponderance of the evidence that he has not abused the writ. Petitioner argues that he should not be expected to have raised these new issues in his original federal habeas petition because these claims had not previously been raised in his State habeas proceeding or on direct appeal and, hence, were not exhausted at the time he filed his federal petition in May 1983. Citing Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), he argues that only exhausted claims could have been presented to this Court. Petitioner further argues that it was not until the fall of 1983 that both case law and social science research provided petitioner with a “reasonable basis” on which to advance these claims. See Petitioner’s Memorandum of Law in Support of the Petition for Writ of Habeas Corpus at 5, fn. 2 [hereinafter referred to as Petitioner’s Memorandum],

Petitioner’s first new substantive claim is based on his allegation that he was denied a fair trial because of Virginia’s jury selection procedures. Petitioner relies on the Supreme Court’s explicit reservation on this issue in Witherspoon v. Illinois, 391 U.S. 510, 520 n. 18, 88 S.Ct. 1770, 1776 n. 18, 20 L.Ed.2d 776 (1968); yet he asserts that the social science and case law which would give him a reasonable basis to advance his claims were not available to him until September 1983.

In Hutchins v. Woodard, 730 F.2d 953, 957 (4th Cir.1984), Judge Murnaghan observed that the sociological data upon which Keeten v. Garrison, 578 F.Supp. 1164 (W.D.N.C.1984), rev’d, 742 F.2d 129 (4th Cir.1984) and Grigsby v. Mabry, 569 F.Supp. 1273 (E.D.Ark.1983), were based was available to the legal profession no later than September 1983 as part of the public record in the Keeten consolidated cases. The Hutchins court noted that the Grigsby opinion had been issued on 5 August 1983 therefore “the existence of the contention and the fact that it had secured the support of one federal district judge were matters of which Hutchins, through his counsel, was clearly chargeable with knowledge.” 730 F.2d at 957.

The petitioner in this case relies on the same issue presented in Hutchins and thus must be charged with the same knowledge. When petitioner filed his amended petition on 16 September 1983 he was on notice that Grigsby had been decided and, indeed, petitioner referred to the Grigsby opinion in that habeas corpus proceeding. See Petitioner’s Second Response in Opposition to Motion to Dismiss, at p. 12, filed on 10 October 1983.

Concerning plaintiff’s second substantive claim, the alleged discriminatory application of the Virginia death penalty, petitioner admits that he was aware in October of 1983 of the Gross and Mauro study on which he relies to support his claim. Petitioner’s Memorandum at 61. The Gross and Mauro study, however, broke no new ground. A similar argument was presented in Spinkellink v. Wainwright, 578 F.2d 582 (5th Cir.1978), cert. denied, 440 U.S. 976, 99 S.Ct. 1548, 59 L.Ed.2d 796 (1979), over a year before petitioner’s trial in February 1980. Petitioner had all the relevant information necessary to present these claims by his own admission as early as October 1983. He argues, however, that they could not properly be presented in his federal habeas claim since they had not then been exhausted in a State habeas proceeding.

In Jones v. Estelle the Fifth Circuit observed that while petitioner may have an excuse in a given case for an omission, “that the omitted claim was not then exhausted is alone not enough.” 722 F.2d at 169. In Rose v. Lundy, 455 U.S. 509, 539, 102 S.Ct. 1198, 1214, 71 L.Ed.2d 379 (1982) the Supreme Court clarified the proposition that an assertion of unexhausted claims in conjunction with exhausted claims in a single petition necessitates dismissal of the “mixed” petition. Dismissal and alternatives to dismissal were spelled out. Rose v. Lundy would have little meaning if petitioner could, with impunity, circumvent its holding by merely withholding his unexhausted claims.

Petitioner’s first federal petition for a writ of habeas corpus was not denied by this Court until April of 1984, over six months after he admits he possessed knowledge sufficient to present these claims. Petitioner’s argument that they could not be presented to the federal forum because unexhausted is unconvincing in light of the fact that the State in that proceeding waived exhaustion as to petitioner’s claim that he was denied necessary Brady material. See Briley v. Bass, 584 F.Supp. 807, 813-814 (E.D.Va.1984). Further, at no time prior to the Fourth Circuit’s decision on 7 August 1984 affirming this Court did petitioner act to exhaust his State court remedies concerning the claims he now raises. Petitioner’s strong (and understandable) desire to delay, is a sufficient explanation for his tactics.

In Sanders v. United States, 373 U.S. 1, 17, 83 S.Ct. 1068, 1078, 10 L.Ed.2d 148 (1963), the Supreme Court identified as an abuse of the writ of a prisoner’s deliberately withholding a ground for federal collateral relief at the time of filing his first federal habeas petition. As this Court recently noted, it is not clear that deliberate withholding is the only ground upon which a finding of abuse may be made. United States v. Berryman, 558 F.Supp. 120, 121 (E.D.Va.1983).

Characterizing conduct as inexcusable is difficult at best, certainly instances exist where a petitioner’s failure to assert a ground in a previous petition is readily seen to be excusable. These instances may arise from a retroactive change in the law or with a petitioner receiving newly discovered evidence. The Supreme Court’s example in Sanders, deliberate withholding, is readily seen as inexcusable. Most cases lie in between.

Id.

In Jordan v. Procunier, 571 F.Supp. 371 (E.D.Va.1983), aff’d, 735 F.2d 1356 (4th Cir.1984), this Court held that a pro se petitioner, who omitted a claim falling within the list printed on the form petitioners use in presenting initial habeas petitions, was guilty of inexcusable neglect. Id. at 374. In subsection “h” of 28 U.S.C. § 2254, App. of Forms, a pro se petitioner’s attention is called to all claims of “conviction obtained by action of a grand or petit jury which was unconstitutionally selected and impaneled.” Petitioner, represented by counsel, raises precisely such claims. Petitioner would have this Court rule that a petitioner represented by counsel should be held to a lower standard than the pro se petitioner in Jordan. The Court is unwilling to accept this proposition.

The Court notes that petitioner has failed to respond to the 9(b) motion with affidavits regarding petitioner’s intent, nor has counsel averred that they were unaware of Spinkellink or footnote 18 in the Witherspoon opinion on 12 May 1983, when petitioner filed his original federal petition. Consequently, petitioner has failed in his burden to come forward with evidence, not mere legal arguments, that this petition is not an abuse of the writ. Although this Court is not wholly persuaded that petitioner has withheld these claims in bad faith, under Jordan and Berryman petitioner’s conduct must be described as inexcusable neglect constituting an abuse of the writ.

The Supreme Court recently addressed the issue of a Rule 9(b) dismissal in the context of a capital murder case. Woodard v. Hutchins, — U.S. —, 104 S.Ct. 752, 78 L.Ed.2d 541 (1984). In Woodard the Court vacated a stay of execution which was entered by a single circuit court judge of the Fourth Circuit. The reasoning of the Supreme Court affirmed the district court’s ruling that Rule 9(b) was an appropriate mechanism for dismissing the petitioner’s “eleventh hour” successive habeas petition. The Court stated that “this case is a clear example of an abuse of the writ that § 2254(b) was intended to eliminate. All three of Hutchins’ claims could and should have been raised in his first petition for federal habeas corpus.” Id. — U.S. at —, 104 S.Ct. at 753, 78 L.Ed.2d at 544.

This Court is well aware of the fact that: [A] pattern seems to be developing in capital cases of multiple review in which claims that could have been presented years ago are brought forward — often in a piecemeal fashion — only after the execution date is set or becomes imminent. Federal courts should not continue to tolerate — even in capital cases — this type of abuse of the writ of habeas corpus.

Woodard — U.S. at —, 104 S.Ct. at 753, 78 L.Ed.2d at 544. Accordingly, this Court finds that petitioner has abused the writ under Rule 9(b) and the petition shall be DISMISSED.

THE WAINWRIGHT DOCTRINE

Recognizing the finality of the death sentence, when carried out, and being mindful that a ruling under Rule 9(b) is procedural and discretionary, I believe a further inquiry into the issues presented is appropriate in this case.

Under Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), the federal courts are precluded from addressing the merits of a constitutional claim presented by a State prisoner in a federal habeas proceeding if, in contravention of a State’s contemporaneous objection rule, those claims were not asserted at trial. This procedural bar can be removed if the petitioner establishes that there was “cause” for his failure to present the claims, and that actual prejudice flowed from such excusable noncompliance with State law. The Commonwealth argues that petitioner cannot establish “cause” for his State court procedural default, because the “means were available” for petitioner to raise these issues at trial. Respondent’s Motion to Dismiss at 10, 11, and 15.

Recently the Supreme Court of the United States addressed the question of the scope of the term “cause” under Wainwright. Under Reed v. Ross, — U.S. —, 104 S.Ct. 2901, 2910, 82 L.Ed.2d 1 (1984), “cause” will be recognized if counsel “fails to raise a claim for which there was no reasonable basis in existing law.” Petitioner argues that the instant claims meet the Reed standard because there was not, prior to early autumn of 1983, a “reasonable basis” on which petitioner could have “realistically appealed his conviction.” Id. 104 S.Ct. at 2912.

The Court in Reed added definition to the term “reasonable basis” by stating that “where a constitutional claim is so novel that its legal basis is not reasonably available to counsel, a defendant has cause for his failure to raise the claim in accordance with, applicable State procedures.” Id. 104 S.Ct. at 2910. In Reed, petitioner, Ross, had been convicted of first degree murder. At trial Ross had claimed lack of malice and self defense. The trial judge instructed the jury that the defendant had the burden of proving each of these defenses. Ross was convicted. Six years later the Supreme Court decided Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), which struck down as unconstitutional any requirement that a defendant bear the burden of proving the element of malice. Ross’ petition for a writ of habeas corpus, citing Mullaney, followed. In finding “cause” for counsel’s failure to object to the instructions at trial, the Reed Court noted that the first case in which the Court addressed the constitutional foundation of the requirement that criminal guilt be established beyond a reasonable doubt, In Re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), was decided over one year after defendant Ross’ conviction. Reed, 104 S.Ct. at 2902.

In contrast the instant petition presents a situation in which there was a reasonable basis to'argue petitioner’s -claims at the time of trial. The petitioner in. his brief frequently cites the Supreme Court’s decision in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). There the Court explicitly noted that a defendant “in some future case might still attempt to establish that a jury [which had been ‘death qualified’ in compliance with the Witherspoon standard] was less than neutral with respect to guilt.” Id. at 520 n. 18, 88 S.Ct. at 1776 n. 18. Respondents cite in their brief numerous studies spawned by the Witherspoon opinion dealing with this subject and available prior to petitioner’s trial in February 1980.

Petitioner argues that if “cause” could not be established in circumstances where defense counsel lacked any basis for perceiving a “reasonable chance” to prevail on a particular claim in State court, then “counsel on appeal would be obliged to raise and argue every conceivable constitutional claim, no matter .how far-fetched, in order to preserve a right for post-conviction relief upon some future unforeseen development in the law.'... Lawyers representing appellants should be encouraged to limit their contentions on appeal to those which may be legitimately regarded as debatable.” Reed, 104 S.Ct. at 2910, (quoting Ross v. Reed, 704 F.2d 705, 708 (4th Cir.1983)).

Petitioner interprets the “cause” standard to mean a reasonable chance of success upon the merits and argues that, until August 1983 when Grigsby v. Mabry was decided, no petitioner could have thought he had a reasonable chance of success. Using petitioner’s logic it would follow that the petitioner in Grigsby did not have a reasonable chance of success and therefore his argument was not “legitimately regarded as debatable.”' In light of the Supreme Court’s reservation of this issue over fifteen years ago in Witherspoon, petitioner’s argument that, pre-Grigsby, such claims were not legitimately debatable and were without a “reasonable basis” in law is not tenable. The Supreme Court’s reservation of this issue was an ample invitation to the legal profession to venture. The spate of sociological and legal articles, which still continues, shows the invitation received widespread acceptance.

In petitioner’s second claim he alleges that recent statistics establish discrimination in the administration of the death penalty under Virginia’s statute. A similar argument was raised and reported in the decision of Spinkellink v. Wainwright, 578 F.2d 582 (5th Cir.1978), cert. denied, 440 U.S. 976, 99 S.Ct. 1548, 59 L.Ed.2d 796 (1979), over a year before petitioner’s trial. Petitioner argues that he perceived the futility of raising this argument at trial on the basis of the Virginia Supreme Court’s decision in Turner v. Commonwealth, 221 Va. 513, 273 S.E.2d 36 (1980), cert. denied, 451 U.S. 1011, 101 S.Ct. 2347, 68 L.Ed.2d 863 (1981).

In Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982), the Supreme Court noted that the perceived futility of presenting an objection to the State courts cannot, alone, constitute cause. Id. at 130, 102 S.Ct. at 1573. Nor is failure to anticipate a change in the law sufficient to constitute cause “where the basis of a constitutional claim is available.” Id. at 134, 102 S.Ct. at 1575. It does not appear that the more recent decision iii Reed affects the validity of the Engle standard. It is inescapable, then, that the arguments and claims petitioner now makes were in legal contemplation very much in the “public domain” at the time of his trial. It may have been useless to raise them at trial in counsel’s view, but the existence, the nature, and the Supreme Court’s interest in such claims was apparent to any trial lawyer. Therefore it is the holding of this Court that petitioner’s claims are barred under the Wainwright doctrine. The petition shall be DISMISSED on that ground.

JURY SELECTION

Although under Wainwright this Court is precluded from basing its holding on the substantive merits of petitioner’s claims, I recognize the inherent uncertainty in any judicial decision and, in deference to the Supreme Court’s admonition that “the death sentence is qualitatively different from all other sentences and therefore special care is exercised in judicial review,” Sullivan v. Wainwright, — U.S. —, —, 104 S.Ct. 450, 452, 78 L.Ed.2d 210, 213 (1983), the Court will proceed to address the merits of petitioner’s substantive claims.

Petitioner presents two related substantive arguments in support of his petition for writ of habeas corpus. The first argument, that he was “convicted by a jury selected in violation of his Sixth and Fourteenth Amendment rights,” Petitioner’s Memorandum at 6, has three distinct' sub-parts.

Conceding that “the state has an undoubted right to strike for cause all members of the venire whose ‘attitude toward the death penalty would prevent them from making an impartial decision as to the defendant’s guilt,’ ” Petitioner’s Memorandum at 10-11 (quoting Witherspoon, 391 U.S. at 522 n. 21, 88 S.Ct. 1777 n. 21), petitioner contends that the “exclusion of jurors unalterably opposed to the death penalty who could render an impartial decision as to his guilt or innocence deprived him of his constitutional rights.” Petitioner’s Memorandum at 11.

Case law does not support this proposition. In Spinkellink v. Wainwright, 578 F.2d 582, 592 (5th Cir.1978), cert. denied, 440 U.S. 976, 99 S.Ct. 1548, 59 L.Ed.2d 796 (1979), two veniremen were striken for cause because they were unalterably opposed to the death penalty, even though “both veniremen stated unambiguously that they could fairly judge Spenkellink’s guilt or innocence.” The Fifth Circuit unequivocally held that the “veniremen were properly excluded for cause and there was no Witherspoon violation.” Id. at 593. See also Martin v. Blackburn, 521 F.Supp. 685, 701-02 (E.D.La.1981), aff’d sub nom. Martin v. Maggio, 711 F.2d 1273 (5th Cir.1983).

In Barfield v. Harris, 540 F.Supp. 451, 463-64 (E.D.N.C.1982), the district court adopted the reasoning of the Spinkellink court. The Fourth Circuit in' affirming Barfield, though not explicating on the district court’s discussion of Spinkellink, stated that the other contentions raised (which necessarily would include the adoption of the Spinkellink reasoning) “were more than adequately handled by the district judge in his opinion” and “[a]s to those contentions, we affirm for the reasons stated by the district judge.” 719 F.2d 58, 63 (4th Cir.1983), cert. denied, — U.S. —, 104 S.Ct. 2401, 81 L.Ed.2d 357 (1984).

Petitioner nevertheless argues that even though there is a legitimate reason to exclude from the sentencing stage those persons unalterably opposed to the death penalty, there is no valid reason to exclude from the trial stage those jurors who are unalterably opposed to the- death penalty but who could render a fair verdict as to guilt or innocence. Although the theoretical logic of petitioner’s argument must be conceded, if petitioner’s argument were accepted, a bifurcated jury, rather than a bifurcated trial, would be mandated in capital murder trials.

Circuit Judge Murnaghan addressed and rejected this very issue in his separate opinion in Hutchins v. Woodard, 730 F.2d 953, 959-60 & n. 10 (4th Cir.1984). A system such as petitioner recommends is not feasible nor is it required by the Constitution. If it were adopted, it would be necessary in every capital murder proceeding to have two separate and distinct trials, i.e., a guilt trial with one panel of jurors and a sentencing trial with a second panel. The second trial, in order to give the sentencing jury a factual basis for its sentence, would essentially be a duplication of the first, except that in the second trial both sides, armed with transcripts of the first trial, would be able to attempt to impeach an adverse witness every time his testimony deviated even slightly from his testimony in the first trial. Not only would the second trial be time-consuming and expensive, it could be so confusing as to deny both the defendant and the State the right to a fair trial. A bifurcated jury such as petitioner suggests “would mandate a departure from a procedure dating back to the origins of the Republic and further back in England.” 730 F.2d at 959. Petitioner has not established that such a step is constitutionally required.

Petitioner next asserts that he was denied his right to a jury comprised of a fair cross-section of the community because the process used to select the jury excluded from the jury pool “distinctive groups in the community.” Petitioner’s Memorandum at 23 (quoting Taylor v. Louisiana, 419 U.S. 522, 538, 95 S.Ct. 692, 701, 42 L.Ed.2d 690 (1975)). Petitioner contends that the distinctive group excluded from the pool is “those members who are unalterably opposed to the death penalty.” He further contends that women and blacks are indirectly excluded because studies cited by petitioner indicate that a higher percentage of blacks and women, as opposed to the population as a whole, are unalterably opposed to the death penalty.

Petitioner has attempted to distinguish between the petit jury and the jury pool. This Court rejects that distinction. Surely if it is permissible to excuse for cause- someone from serving on the petit jury, it is permissible to exclude for cause that same person from the jury pool. Less than two months ago the Fourth Circuit ruled that “the state may thus exclude such jurors [members of the venire irrevocably opposed to capital punishment] without violating a defendant’s right to a fair cross-section of the community.” Keeten v. Garrison, 742 F.2d 129, 133-134 (4th. Cir.1984). Therefore, the exclusion of veniremen from the jury pool who were unalterably opposed to the death penalty did not violate petitioner’s right to a jury pool composed of a fair cross-section of the community.

Petitioner’s pleadings and exhibits do not include any information or statistics that would inform the Court as to the percentage of women and blacks who were: registered to vote; included in the venire pool; included in this particular venire; or who actually served on the jury. The only information petitioner presents to support his argument is that sixteen “members of the venire were stricken for cause ... because they had expressed unequivocal opposition to the death penalty.” Petitioner’s Memorandum at 6-7. Of these ■ sixteen, eight were men and eight were women. Id. at 7 n. 3.

The United States Supreme Court in Witherspoon v. Illinois, 391 U.S. 510, 522 n. 21, 88 S.Ct. 1770, 1777 n. 21, 20 L.Ed.2d 776 (1968), said that a State may demand that a venireman “not be irrevocably committed, before the trial has begun, to vote against the penalty of death regardless of the facts and circumstances that might emerge in the course of the proceedings.” Accepting the research studies presented by petitioner as true and accepting as true petitioner’s contention that a “disproportionate” number of blacks and women were excluded at a stage in the jury selection process, petitioner’s argument is unpersuasive — because the question asked is constitutionally permissible. If studies or surveys show that certain socio-economic groups have particular opinions about the laws and these groups are excused from jury service because of these beliefs, the exclusion is constitutionally permissible because it is not based on an immutable characteristic such as sex or race.

To hold that the jury concerned with guilt or innocence would be unrepresentative, if all prospective jurors inflexibly opposed to the death penalty were ex-cludable for cause, essentially begs the question. A juror prejudiced or biased for any reason, upon exclusion for cause, renders a jury “unrepresentative” in that untenable sense. For example, over half the eligible jurors might, in a county where prejudice runs high, be unable to judge fairly in a case involving a plaintiff and a defendant of different races. A jury made up from the minority who would not be so biased would not be unrepresentative for constitutional purposes, even though more than 50% of the pool from which it would otherwise be drawn were excluded. 730 F.2d at 960-61 (Murnaghan, separate opinion).

Accordingly, petitioner has not been denied impermissibly a trial by a representative cross-section of the community.

Petitioner also contends that by questioning veniremen about their views on the death penalty during voir dire, “ ‘the key participants, the judge, the prosecutor and the defense counsel convey the impression that they all believe the defendant is guilty, that the ‘real’ issue is the appropriate penalty, and that the defendant really deserves the death penalty.’ ” Petitioner’s Memorandum at 21 (quoting Grigsby v. Mabry, 569 F.Supp. 1273 (E.D.Ark.1983)). Petitioner cites one study in support of this proposition. That study recorded the reaction of 67 persons. The words of the Supreme Court, used in another context are equally applicable here, “[t]he data adduced by the petitioner ... are too tentative and fragmentary to establish that jurors,” questioned about their views on the death penalty will conclude, on the basis of that question, that a defendant is guilty. Witherspoon, 391 U.S. at 517, 88 S.Ct. at 1774. But even given the validity of the study, in order to obtain a jury willing to obey the law it is necessary that the question be asked. The alternative is a lawless jury and no provision of the Constitution requires that.

ADMINISTRATION OF VIRGINIA’S DEATH PENALTY

Petitioner’s second substantive argument in support of his habeas petition claims that “the arbitrariness and discrimination in the administration of the death penalty in Virginia violates petitioner’s rights under the Eighth and Fourteenth Amendments.” Petitioner’s Memorandum at 35. Petitioner asserts that statistics demonstrate that a defendant convicted of killing a white person stands a much greater chance of receiving the death sentence than does a person convicted of killing a black; and that if the killer of the white person is black, his odds of receiving the death penalty are increased significantly.

Any system designed by man is and will be imperfect. So it is entirely possible that race consciousness may enter into the imposition of the death penalty, either favorably to blacks, whites, men, or women or unfavorably to any of them. And at varying times and in different localities one group or the other may be preferred or discriminated against. Under our governmental system, the courts judge the cases that are presented to them, while Congress and the State legislatures enact legislation that deals with the social consequences of the laws. Thus while the legislature may repeal the death penalty because it perceives it to be unfair or discerns racial discrimination in its application, a judge cannot “repeal the death penalty” in a given case even if he perceives it to be, in his estimation and by his lights, generally unfair.

The question before the court in a given case is whether the individual received a reasonably fair trial following procedures prescribed by due process. The question is not whether other persons in other circumstances received a fair trial. If due process is afforded the defendant in the case before the judge, the conviction and sentence must stand. Only if due process is not afforded may it be vacated.

While petitioner cites statistics for disproportionate impact when the victim is white, he admits that the statistics are inconclusive. Petitioner’s Memorandum at 42. He cites expert opinions which declare that’ the statistics are' inconclusive. See Gross & Mauro, Patterns of Death: An Analysis of Racial Disparities in Capital Sentencing and Homicide Victimization at 91 (unpublished pre-publication draft, Oct. 1983).

Petitioner’s argument is reduced to the emotionally unsettling, but legally unsupportable, claim that no one should be deprived of his life until we can be statistically certain that our legal process is untainted by race bias. Petitioner’s Memorandum at 42. Neither the law nor-the Constitution nor reason would permit such an argument to overthrow the orderly processes of the trial in this case, which comported with all of the requirements of due process and which cannot be assailed as unfair. Indeed, the only sure way to meet petitioner’s statistical objection would be to award the death penalty on the basis of some sort of racial quota.'

Petitioner was convicted of capital murder in a jury trial held in the Circuit Court of Richmond, Virginia. Subsequently, that same jury fixed his punishment at death. The Virginia Supreme Court affirmed both the conviction and sentence. The United States Supreme Court denied certiorari on the issues raised on direct appeal. Petitioner then filed a petition for a writ of habeas corpus in the Circuit Court of Richmond seeking relief on numerous grounds. The Circuit Court denied that petition. The Virginia Supreme Court affirmed on petitioner’s appeal on the State habeas corpus issues, and subsequently the United States Supreme Court denied certiorari. Petitioner then filed his first federal habeas corpus petition in this Court advancing most or all of the claims raised in the State habeas corpus proceeding. This Court dismissed that petition. The Court of Appeals affirmed and subsequently denied a petition for rehearing with a suggestion for rehearing en banc. Petitioner filed a second habeas corpus petition with the Virginia Supreme Court which was dismissed by that court. On 24 September 1984 the instant petition was filed with this Court.

The amassed weight of all of these judgments by all these judges renders almost, if not quite, frivolous an argument that petitioner has been denied due process and fundamental fairness. It can only be concluded that petitioner or his counsel are, not so much- concerned with due process, or fairness, or constitutionality. They are concerned with results. They want the sentence overturned. But in a system based on laws, lawyers, of all people, must recognize that the law’s will must be done if- we are to preserve our' freedoms and liberties. The law in this case secured to petitioner a fair trial and a sentence sanctioned by the Constitution. He was fully entitled to that. He is entitled to no more than that.

For the foregoing reasons, petitioner’s writ of habeas corpus will be dismissed and denied. Because this Court has decided the habeas corpus issue, the motion for a stay of execution is moot and, therefore, the motion for a stay is DISMISSED.

An appropriate judgment shall issue.

And it is so ORDERED.

      . The Court was aware that the same issues had just been briefed by the parties before the Supreme Court of Virginia.

      . This Court has previously noted the fundamental difference in the thrust of a habeas petition in a non-capital case with the objective of a petitioner in a capital case. Stamper v. Baskerville, 531 F.Supp. 1122, 1131 (E.D.Va.1982); Briley v. Bass, 584 F.Supp. 807, 845 (1984).

      . The second State habeas corpus proceeding was dismissed by the Virginia Supreme Court specifically on this ground.

      . See Zeisel, Some Data on Juror Attitudes Towards Capital Punishment (Center for Studies in Criminal Justice, University of Chicago Law School, 1968); Goldberg, Toward Expansion of Witherspoon: Capital Scruples, Jury Bias, and Use of Psychological Data to Raise Presumptions in the Law, 5 Harv.Cir. Rights — Civ.Lib.L.Rev. 53 (1970); Jurow New Data on the Effect of a "Death Qualified" Jury on the Guilt Determination Process, 84 Harv.L.Rev. 567 (1971); Louis Harris and Associates, Study No. 2016 (1971), reported in part in White, The Constitutional Invalidity of Convictions Imposed by Death-Qualified Juries, 58 Cornell L.Rev. 1176 (1973); Ellsworth et ah, Juror Attitudes and Conviction Proneness: The Relationship between Attitudes towards the Death Penalty and Predisposition to Convict (1979); 1 Bronson, On the Conviction Proneness and Representativeness of the Death-Qualified Jury: An Empirical Study of Colorado Veniremen, 42 U.Colo.L.Rev. 1 (1970).

      . The Court notes that the Turner decision was handed down on the same day, 26 November 1980, as the decision in petitioner’s appeal of his conviction. It seems improbable that petitioner was relying at trial on an opinion that had not yet been written.

      . In Spinkellink there was a bifurcated trial using the same jury. After guilt was determined there was a second proceeding on the issue of penalty. The determination of the jury in the penalty phase was reached by majority vote and was advisory only. 578 F.2d at 587-88 & n. 7.

      . "Petitioner does not challenge on fair-cross-section grounds the composition of the petit jury that convicted him...." -Petitioner’s Memorandum at 23.

      . See supra note 7.

      . Analogizing this situation to Title VII adverse impact cases, petitioner bears the initial burden to establish that the effect of a given test has a disproportionate impact on a protected .class. After plaintiff makes this showing the burden shifts to defendant to articulate a legitimate business purpose.
      In the case at bar, petitioner has established that the death qualification process disqualifies a disproportionate number of blacks and women from jury duty. The State has advanced as a legitimate substantive interest the necessity of having only those members of the community who are "willing to consider all of the penalties provided by state law,” 391 U.S. 510, 522 n. 21, 88 S.Ct. 1770, 1777 n. 21, serve as jurors in a capital murder trial. Thus, in Title VII parlance, the test is "validated.”