In re Friend
A155955
| Cal. Ct. App. | Mar 22, 2022Background
- In 1984 Jack Wayne Friend was convicted of first-degree murder and robbery and sentenced to death; the conviction and sentence were affirmed on direct appeal (People v. Friend) and an initial state habeas petition was denied in 2015.
- Friend filed federal habeas petitions in 2016–2017; the federal court stayed proceedings to permit exhaustion in state court, and in June 2018 Friend filed a second (exhaustion) state habeas petition raising six claims (Batson/Wheeler, multiple ineffective-assistance-of-trial-counsel subclaims, Atkins-type challenge for organic brain damage, recusal of justices, Miranda violations and ineffective assistance of appellate counsel).
- Proposition 66 shifted capital habeas practice to sentencing courts and requires dismissal of successive petitions unless the petitioner proves by preponderance actual innocence or death-penalty ineligibility; appeals from dismissals require a certificate of appealability (COA) showing both a substantial claim for relief and that §1509(d) is met.
- The superior court dismissed Friend’s exhaustion petition as successive and denied a COA; the Court of Appeal initially denied a COA, but the California Supreme Court in In re Friend (2021) instructed the Court of Appeal to reassess whether each claim is "not successive" under the standards described in Friend.
- On remand the Court of Appeal applied Friend/Clark standards and denied Friend’s COA: it concluded Friend failed to plead specific facts demonstrating prior habeas counsel’s incompetence in omitting claims, and failed to make a substantial showing of actual innocence or ineligibility for the death penalty (including rejection of extending Atkins to organic brain damage).
Issues
| Issue | Plaintiff's Argument (Friend) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether claims in the second habeas petition are "successive" under Proposition 66/Friend (i.e., whether Friend adequately justified omission from earlier petition) | Claims were omitted because prior habeas counsel (Young) was ineffective, so they are not successive | Friend failed to plead specific facts showing counsel was incompetent; many claims were known earlier; counsel presumed competent and tactical choices are permissible | Claims are successive; Friend did not make a substantial showing they are not successive |
| Whether Friend pleaded ineffective assistance of prior habeas counsel with sufficient specificity to overcome successiveness | Prior counsel omitted meritorious claims without tactical justification; a declaration says no strategic reason for omissions | Rule requires specific factual allegations about what counsel knew, should have known, and reasons for omission; conclusory declarations are inadequate | Pleading insufficient; COA denied on ineffective-assistance-of-habeas-counsel theory |
| Whether Friend’s Atkins-type claim (organic brain damage) shows ineligibility for death under §1509(d) | Organic brain damage should render Friend ineligible for death, analogous to Atkins protections | Atkins protects intellectual disability as defined in §1376; no showing of intellectual disability or national consensus to extend Atkins to organic brain damage | Claim fails: no substantial showing of ineligibility for death |
| Whether Friend made a substantial showing of actual innocence | (Implicit) second-petition claims collectively demonstrate innocence | None of the six claims, even if true, demonstrate actual innocence | No substantial showing of actual innocence |
| Whether the COA "substantial claim" standard equals federal Slack standard | Friend urged adoption of the federal COA standard (some merit/debatable) | Friend points to no evidence voters intended to import federal standard; Friend and prior cases require specific pleading thresholds | Court did not adopt federal standard in this context; Friend’s pleading threshold still requires specificity |
Key Cases Cited
- In re Friend, 11 Cal.5th 720 (California Supreme Court 2021) (construing Proposition 66 successiveness rules and remanding to Court of Appeal)
- In re Clark, 5 Cal.4th 750 (California Supreme Court 1993) (prior framework for successiveness and miscarriage-of-justice exception)
- People v. Friend, 47 Cal.4th 1 (California Supreme Court 2009) (direct appeal affirming conviction and recounting trial record)
- In re Reno, 55 Cal.4th 428 (California Supreme Court 2012) (strict pleading requirements and standard for claiming ineffective assistance of prior habeas counsel)
- In re Robbins, 18 Cal.4th 770 (California Supreme Court 1998) (pleading specificity and counsel’s tactical winnowing)
- Atkins v. Virginia, 536 U.S. 304 (U.S. Supreme Court 2002) (bar to execution of intellectually disabled offenders)
- Strickland v. Washington, 466 U.S. 668 (U.S. Supreme Court 1984) (ineffective assistance two-prong test)
- Harrington v. Richter, 562 U.S. 86 (U.S. Supreme Court 2011) (deferential review of counsel performance under Strickland)
- Roper v. Simmons, 543 U.S. 551 (U.S. Supreme Court 2005) (evolving standards of decency and categorical Eighth Amendment analysis)
- Wainwright v. Witt, 469 U.S. 412 (U.S. Supreme Court 1985) (standard for excusing jurors for cause in capital cases)
- Yarborough v. Gentry, 540 U.S. 1 (U.S. Supreme Court 2003) (counsel’s strategic focus and appellate winnowing)
- People v. Boyce, 59 Cal.4th 672 (California Supreme Court 2014) (discussing scope of Atkins/exemptions under California law)