*1 July S022475. [No. 1993.]
In re WILLIAM JOHN CLARK on Habeas Corpus.
Counsel Weinheimer, Eric S. Gail R. Multhaup, Jean R. Sternberg, Denise Anton and Coffin, Lynne Court, Shatzkin under appointments by Supreme Petitioner. General, Williamson,
Daniel E. Lungren, Attorney George Chief Assistant General, General, Attorney John H. Assistant Sugiyama, Attorney Morris Gillette, General, Beatus and Dane R. Deputy Attorneys for Respondent. *9 Opinion corpus, for a writ of habeas
BAXTER, J. John Clark William under which he is confined that the judgment pursuant claiming unjustified delay that his death is invalid. We conclude sentence of the merits of petition. claims bars consideration of his presenting if, defects as a result of the An would be recognized to this bar exception were sentence shown the conviction and/or complains, of which petitioner miscarriage A fundamental miscarriage justice. a fundamental constitute (1) magni- of constitutional showing: is established that error justice that the error no led trial that was unfair absent fundamentally tude to a so (2) that would have convicted the judge jury petitioner; reasonable or he was crimes of which innocent of the crime or petitioner actually convicted; authority (3) by sentencing that the death was penalty imposed it that which had before misleading petitioner such a grossly profile imposed would have judge jury absent error or omission no reasonable death; an invalid a sentence was convicted under that petitioner statute. to demonstrate allegations of the and exhibits fail supporting these any exceptions, could establish existence of shall, therefore,
however. We for writ of habeas deny corpus. Proceedings Prior
I. 5, 1990, On this court affirmed a of conviction of April peti tioner, and of the death after a found imposition penalty, jury first murder with a murder in the guilty degree circumstance of special Code, 189, 190.2, (Pen. (a)(17)(viii)),1 of arson commission subd. two §§ (§§ 664/187), (§ murder (a)), counts of arson subd. attempted rape (§ (a)(2)). Cal.3d (People Cal.Rptr. subd. Clark 583 [268 127].) P.2d
There was no the acts which led to his question petitioner committed 6, 1982, On conviction. he threw one bucket of into the January gasoline Gawronski, dining area of the home of David and Ava and another into the bedroom, where couple’s both were He with sleeping. ignited gasoline lighted David highway ensuing flares. Gawronski suffered fatal burns flash fire. Ava Gawronski was burned so that she was severely hospitalized months, for 10 and suffered permanent injuries disfigurement, including the loss of her fingers nose. statutory
1All references herein are to the Penal Code unless otherwise noted. acts, Petitioner admitted these claim that contesting only prosecution’s *10 he intended kill to the Gawronskis and their infant daughter, who was intent, rescued unharmed from another bedroom. His he was explained, to drive the kill couple out of home so that he could shoot and David him, Gawronski with the he shotgun carried with while Ava Gawronski demonstrate, suffer, watched. His was to her purpose how causing Gawronski, much Ava a licensed social worker and marriage and family counselor, had him hurt when she terminated the she had been counseling admitted, however, him. He giving that when he threw the flare to ignite he he gasoline, knew was it throwing into victims’ bedroom. The death verdict was returned after penalty a retrial of the penalty phase at which The petitioner represented himself. had been original jury unable reach a verdict. penalty
None of the experts who examined him petitioner diagnosed as incompe- tent or The mentally ill. second heard penalty jury testimony by psychol- Hatcher, ogist, Dr. John had petitioner a “borderline be- personality” tween neurotic and Petitioner had he psychotic. told Dr. Hatcher that felt code, morally justified under his own ethical and he had stated that could not have asked that his act of turn revenge out better than it had. Dr. Linda any Weinberger, also a psychologist, testified that had expressed kill desire to two other and persons, had said he would consider finding a person about to be released from to do this for prison him. 1,
The of death judgment was on imposed 1985. Counsel on February 5, 1985, appeal was this appointed by court on March the record on appeal 21, 1986, was filed on November and was briefing completed on December 26, 5, 1990, however, At 1989. the time the was affirmed on April no for writ petition of habeas corpus challenging validity judg- ment had been filed. later,
Almost one year sought first relief by habeas corpus, 15, his first such filing on March petition 1991. No explanation for the delay in seeking relief was offered in the petition. (1) The first petition alleged: that this court had denied petitioner due and process violated the ex post facto guarantees of the state and federal Constitutions in the arson construing 190.2, special (§ that, circumstance (a)(17)(viii)); (2) subd. because peti- tioner was incompetent, petitioner had been denied due effective process, counsel, assistance and protection against cruel and unusual punishment at the penalty phase of his trial when the trial court acceded to petitioner’s himself; request represent that this court had failed to apply test of reversible error required by Chapman 386 U.S. California 1065], in 710-711, ruling 24 A.L.R.3d S.Ct. L.Ed.2d claims error. appellate
on for time petitioner’s request receiving denying After opposition, allegations supporting factual with additional supplement documentation, state a prima failed to court concluded that this May was denied to relief. entitling petitioner facie case 1991.
II.
The
Petition
Second
filed.
second
was
On
this
August
his
on the basis
Petitioner
of another
explains
filing
of the United
were
to the decision
response
additional claims
“developed”
grounds leading proceedings counsel, trial, and was denied due a fair effective assistance of process, claims, as charac- against cruel and unusual These protection punishment. terized by are set forth below. petitioner,
1. Failure to District Angeles County Recuse. office of the Los recuse Attorney, members of whose staff failed to prosecuted petitioner, had repre- itself after as a district who hiring deputy attorney attorney 19,1982, he sented when petitioner during until October pretrial proceedings This, him due withdrew as denied petitioner’s argues, counsel. petitioner process and the to counsel became right prosecution thereby because communications, to more than and successor privy year one of confidential information, counsel was denied access to the as a source of attorney strategy, testimony. Effective effec-
2. Counsel. Petitioner claims he was denied his to right tive assistance of counsel for reasons set forth below:
a. Petitioner’s counsel failed to to investigate petitioner’s competency himself at the retrial of the or to represent phase request penalty undertake that did not appointment separate investigation, counsel to defer to did petitioner’s desire to at the retrial and thus not testify penalty himself, remove one of the bases for election to and petitioner’s represent did bring to the tending negate attention the court information petitioner’s competency to himself or even to to the represent proceed trial. Had penalty counsel warned adequately petitioner dangers concerns, self-representation, accommodated petitioner’s brought to attention of the court information to show that elec- tending petitioner’s tion was not and knowing voluntary, investigated petitioner’s compe- and evidence tency to establish that developed could not make decision, knowing intelligent right would his enjoyed effective representation by counsel at the retrial. penalty b. Petitioner’s counsel failed investigate evidence of present conduct, record, petitioner’s conforming lack of and the disciplinary positive image jail held him personnel during the three years prior trial, and to this as present mitigating evidence at penalty phase.
c. Petitioner’s counsel failed to investigate evidence other present *12 than the and testimony petitioner his parents regarding petitioner’s available, and background upbringing. Numerous other witnesses were including members of and petitioner’s family, his school and social contacts; addition, All documentary materials were also available. these would have had a effect. mitigating
d. Petitioner’s counsel him advised examina- erroneously submit to tion aby selected psychologist failed monitor by prosecution, examination, and failed to insist on a verbatim of the recording examination.
3. Due Process/Fair Trial. Petitioner was denied due fair and a process trial by the prosecutor’s “false implication” jury that a retrial penalty was required law. by This implication undermined assertedly petitioner’s he testimony letters sent to one of his victims and to her father were not sent for the purpose of further causing recipients emotional but suffering, in order to a retrial. provoke
4. Due Process/Fair Trial/Cruel and Unusual Punishment. Petitioner trial, contends that he denied was due a fair and process, freedom from cruel and unusual punishment that:
a. was Testimony introduced erroneously the effects of the regarding evidence, offenses on a victim surviving and her family. This prejudicial petitioner was alleges, discussed and relied improperly on members of the jury as nonstatutory aggravating evidence. life that a sentence of the belief and considered
b. The discussed jury incarcera- to ensure not be adequate would parole without possibility necessary death sentence was of the imposition tion of and society. to protect sentencing responsibilities was misled its jury regarding
c. gravity mitigate evidence that would and believed that discussed considered. of the crime itself could be properly by prosecutors There was invidious and discrimination systematic d. death penalty, by jurors imposing the death seeking penalty, was, status, race, Petitioner gender. on the basis of the victims’ social the characteristics treatment because of he out for alleges, singled capital of the victims. was capricious
e. The of the death imposition penalty the offense and his back- because relevant characteristics of penologically are the death than those ground deserving penalty no more serious or a far with greater noncapital dispositions. number of similar cases Corpus
III. Limitations on Habeas Relief As is a review and the of this history from above claims apparent case, relief are restatements or reformula- many grounds asserted for *13 tions of made and in the arguments rejected prior corpus on or habeas appeal while others are claims that could and should have been made on petition, stated, To the extent that new for relief are fails appeal. grounds in the to demonstrate these claims could not have been asserted prior petition, any by petition of the claims could not have been presented filed with the conjunction appeal. claim,
Before considering the merit of it is therefore possible any appro- to review the attacks priate decisional law collateral statutory governing addition, In judgments of conviction for writ of habeas by petition corpus. cases, because no clear we guidelines emerged our consider past when departure from those rules is warranted.
A. Limitations on Collateral Attack.
The rules relief governing postconviction recognize Writ," of “Great reflected its constitutional importance importance 764 2
status, Indeed, and in our decisions. the writ has been termed “the past aptly (In safe-guard (1901) and the re 133 palladium Begerow of our liberties” 349, 828]) Cal. 353 P. and is as the known to “regarded greatest remedy [65 the law one restrained whereby unlawfully liberty of his can secure his 334, (Matter (1911) 757].) release . . . .” The Ford 160 Cal. 340 P. [116 of writ has been available to secure release from unlawful restraint since Const, 1849, I, 5; 1850, 122, (Cal. of the state. founding art. Stats. ch. p. § See, 9; Queen People (1850) 134. v. Smith 1 Cal. Ex e.g., parte (1850) 157.) 1 Bay Cal. however,
Our cases the extraordi simultaneously recognize, which, nature3 nary of habeas relief from a for this purpose, 226, (see valid presumed People Shipman (1965) 62 Cal.2d 232 [42 1, 993]; (1942) 397 P.2d In Cal.Rptr. re Bell 19 Cal.2d P.2d [122 22]), the (see (1951) re importance finality judgments McInturff 22]), Cal.2d 876 P.2d and the interest in the state prompt [236 implementation (See, of its e.g., Arguello laws. In re 71 Cal.2d 921].) Cal.Rptr. 452 P.2d Procedural rules have been established our decisions past to govern petitions for writs of habeas Such necessary rules are both corpus. law, to deter use of the writ to unjustifiably delay implementation to avoid the need to set aside final of conviction when retrial judgments 756,761 would be difficult (See In re impossible. Dixon Cal.2d P.2d when the claim an asserted denial 513] [Even involves of consti tutional rights, would obviously a collateral improper permit “[i]t attack because of claimed errors in the determination of the facts after 11; Constitution, I, 2California article section corpus may suspended “Habeas not be unless required by public safety in cases of rebellion or invasion.” I, unchanged The text is from that of article section 5 of the Constitution of and of *14 present former section 5 of the article I of the Constitution. 1879 I, 9, corpus recognized While habeas is in article section 2 clause of the United States Constitution, provision oblige that does not the states to afford a habeas corpus remedy. 551, 539, 547, (Pennsylvania (1987) v. Finley 1990].) 481 U.S. 557 L.Ed.2d 107 S.Ct. [95 Connor, 701, 3Habeas corpus (In (1940) is an “extraordinary remedy.” re Cal.2d 16 709 10].) may P.2d [108 not be invoked where the accused remedy “[I]t has such a under the orderly provisions designed of a statute specific to rule the case he upon which relies for his discharge. This would be an abuse of process, remedy by as his relief under the provided the accomplish statute would all that he seeking corpus was and all that the writ of habeas was wit, designed ever to accomplish, discharge (In (1928) the Alpine of the accused.” re 203 731, 947, Cal. 1500].) P. 739 58 A.L.R. “The corpus [265 writ of habeas was not created for purposes the defeating of embarrassing justice, (Id., 744.) promote p. but to it.” at
765 have and may disappeared when evidence appeal of the time for expiration 4 unavailable.”].) witnesses may become any explain justify It has that a long required petitioner been the this habeas of significant delay seeking corpus practice relief. “[I]t who a collateral attack such belatedly court to that one require presents (In (1949) re the Swain 34 Cal.2d raising this explain delay question.” 300, Swain, 793].)5 In we that such was explanation 302 P.2d noted [209 where a made attacks on “particularly necessary” petitioner prior has (Ibid.) without The burden is one validity raising of issues. judgment not even on and is placed indigent appearing persona, petitioners propria met an he not by assertion of counsel or she did represent petitioner earlier.6
It is rule that on will not be appeal also issues resolved general 218, (In reconsidered (1965) on re 62 Cal.2d 225 corpus habeas Waltreus [42 “ 9, and, 1001]), ‘in of Cal.Rptr. special 397 P.2d the absence circumstances constituting failure to the writ will lie remedy, excuse for employ been, not, where the timely claimed errors could have but were raised a upon Dixon, 756, from appeal (In 41 conviction.’ re Cal.2d 759 513]; Morrison, 442, 443, P.2d 4 1 People accord Cal.3d fn. [264 [93 751, 881, 663]; Black, Cal.Rptr. 482 P.2d In re Cal.2d 66 886-887 [59 429, 293]; 547, Cal.Rptr. 428 P.2d In re Cal.2d 551-553 Shipp, 62 [43 3, 764, 571].)” Cal.Rptr. (In (1974) 399 P.2d re 10 Walker Cal.3d 773 [112 177, 1129].) Cal.Rptr. 518 P.2d “Without limitation this usual use 4Challenges to validity petitioner of the statute under which the was convicted do not Bell, present problem this may any recognized be raised at supra, time. We in In re 19 488, 493, Cal.2d remedy that in some cases habeas is the available which this raised, may claim “the importance and that a correct securing determination on the question of constitutionality” statute departure procedural warrants from the usual limits corpus. habeas on For that subject reason these claims have not been either the rules requiring justification delay (See (1968) appellate exhaustion of In re Berry remedies. 137, 273, 666, Cal.Rptr. 273]; 68 Cal.2d 145 (1964) 436 P.2d Zerbe 60 [65 re Cal.2d 286, 182, Dixon, 667-668 Cal.Rptr. 840]; P.2d 10 In re supra, A.L.R.3d 41 Cal.2d 756, 762.) 5Delay seeking or other collateral been measured relief has from the time petitioner grounds becomes aware early on which he relief. That seeks time be as 1033, 633, as the (See date of (1970) conviction. In re Saunders Cal.Rptr. Cal.3d 1040 [88 921]; 873, 472 P.2d 613].) In re Cal.Rptr. Wells 67 Cal.2d 434 P.2d Although delayed presentation to enable the a habeas corpus petition to file with opening brief appeal permitted, has been be filed as promptly should as the allow, circumstances point “must particular circumstances sufficient justify (In substantial .” delay . . . re Cal.3d fn. 1 [220 Stankewitz Cal.Rptr. 1260].) 708 P.2d otherwise, *15 6Were the potential rule for abuse be magnified of the writ would as counsel withdraw or are substituted each attorney successor that a as claims was filed soon as the attorney successor became aware seeking of the new for basis relief. 766 writ, have a semblance only crime would of conviction of judgments 876, 880.) Cal.2d (In McInturff, supra, re 37
finality.” reasons, writ of habeas raised for whether For same relief nobis, evidence is a basis discovered newly or coram that the It is not sufficient entire case. if it undermines the prosecution’s a more case or presented weakened the prosecution evidence have might 408, (1981) Cal.3d 417 (In re Hall 30 judge jury. difficult question 703, 724 223, 690]; (1974) 11 Cal.3d In re Weber 637 P.2d Cal.Rptr. [179 200, 429, 215 229]; (1969) 70 Cal.2d In re Branch 523 P.2d Cal.Rptr. [114 238, be collater 174].) criminal judgment 449 P.2d Cal.Rptr. “[A] [74 if the evidence only discovered’ ‘newly on the basis of ally attacked reliability accuracy evidence fundamental doubt on ‘new’ casts evidence, credited, if must under At the such guilt phase, proceedings. innocence or unerringly to mine the entire case and prosecution point 1179, (1990) 1246 51 Cal.3d (People [275 reduced v. culpability.” Gonzalez 729, 1159].) 800 P.2d Cal.Rptr. failure to discover attributes the
The rule is similar when a petitioner alleged incompetence. the evidence at trial to trial counsel’s present fair proceeding an accurate and that the essential elements of presumption case, on which it is when the basis were is not applicable present (Strickland Washington v. evidence. relief is discovered sought newly 674, 697-698, 2052]; 668, People S.Ct. L.Ed.2d 466 U.S. 694 [80 1179, Nonetheless, Gonzalez, 1246.) must supra, v. Cal.3d as to reality,’ simply speculation as a ‘demonstrable establish “prejudice . The peti . . effect the errors or omissions of counsel. [Citation.] knew have known that counsel or should tioner must demonstrate rele the nature and was and must establish investigation necessary, further (People v. failed to or discover.” present vance the evidence that counsel 336, 395].) 751 P.2d (1988) 44 Cal.3d Cal.Rptr. Williams that a more if there is a reasonable probability is established Prejudice had the evidence been presented, outcome would resulted favorable i.e., (Strick in the outcome. sufficient to undermine confidence probability at pp. L.Ed.2d Washington, supra, land v. 466 U.S. 693-694 [80 Williams, 697-698]; 944-945.) The incom People supra, Cal.3d in a unfair fundamentally proceeding must have resulted petence _ _, (Lockhart v. Fretwell 506 U.S. unreliable verdict. 838].) L.Ed.2d 113 S.Ct. of a validity
Postconviction habeas attack on evidence, limited to based on discovered challenges newly conviction is court, constitutional and claims of going jurisdiction claims
767 223, 408, (See 420 (1981) Cal.Rptr. dimension. re Hall 30 Cal.3d [179 In However, Bell, 488, 690]; 493-496.) some supra, In re Cal.2d 637 P.2d 19 dimension, errors, on even are not though cognizable trial of constitutional “ no convicting the error ‘carries with it risk of corpus habeas because ” 486, re (In Sterling (1965) Cal.Rptr. innocent 63 Cal.2d 487 person.’ [47 205, 5].) (1965) P.2d had in Cal.2d Sterling, 407 as it In re Lessard 62 497, 583, 39], view P.2d court the adopted 503 399 the Cal.Rptr. [42 879, (1961) in In re 56 Cal.2d 880 by Traynor then-Justice Harris expressed 889, J.). (conc. Traynor P.2d Justice Cal.Rptr. opn. 366 of Traynor, [16 305] had reasoned that the seized evidence unlawfully erroneous admission of convicted, no risk that an innocent defendant presented might be “[t]he will risk that deterrent effect of the rule be [exclusionary] compromised it outweighed by an occasional erroneous is far by refusing decision apply if that disruption orderly justice administration of would ensue (Id., at again issue could be over and on collateral attack.” relitigated p. over 884, Traynor, J.) conc. opn. reasoning That court persuaded Fourth Amendment need on even violations considered habeas corpus when issue had not been raised “Failure to exercise these appeal. will by available remedies constitute such a readily ordinarily deliberate passing state denial of federal well as orderly procedures justify as (In state collateral supra, 489.) relief.” re at Sterling, p. 63 Cal.2d B. Repeated Applications,7 Claims, Piecemeal Presentation Delay. noted,
As we this is the writ second by petitioner. this Several after his and the years conviction affirmance of he his appeal, repeats rejected claims when his initial petition was denied and seeks to raise that were claims not asserted that petition. Repetitious piecemeal
1. claims. It has long been rule that absent a law or change applicable facts, the court will not consider repeated for habeas applications 911, (See presenting Terry claims In re 4 previously rejected. (1971) Cal.3d 921, fn. 1 1375]; 484 P.2d Cal.Rptr. (1949) [95 In re 33 Cal.2d Horowitz 513]; P.2d In re De (1946) [203 La Roi Cal.2d 275 [169 363]; P.2d In re Miller 10].) 17 Cal.2d P2d court no appeal 7Because lies a petition prisoner from denial of of habeas corpus, writ whose has by been denied court superior only by can obtain of his review claims filing of a new petition Appeal. in the Court of Our reference to and discussion of application practice, filing successive has no original petition or to the of an (In re this court after Trombley denial of the Court of Appeal. 801, 804, 734].) Cal.2d fn. 1 P.2d *17 768 were relief which grounds newly consider presented
has also refused to attack on collateral prior the time of to the at known 534, 546-547; Drew Horowitz, In re 33 Cal.2d (See supra, re In judgment re 717, In 249].) clearly The rule was stated P. (1922) Cal. 722 188 [207 701,705: Connor, permitted “In a defendant is this state 16 Cal.2d supra, attacking proceedings successive by his contentions piecemeal to out try him.” against validity termed “discre- relief have been bars to habeas
These procedural 1; 911, In re 4 fn. Cal.3d 921. (see Terry, supra, re tionary,” however 599, 679]), 854, 863, 442 P.2d Cal.Rptr. fn. 9 (1968) 68 Cal.2d [69 Bevill Horowitz, re (See In of the court. as a “policy” and have been described 534, Horowitz, And, 534, 33 Cal.2d supra, re 546.) while In 33 Cal.2d supra, Drew, 701, 705, Cal. Connor, supra, 188 and In re Cal.2d supra, In re 16 claims, 717, noted expressly none presentation condemned piecemeal identified, not have been may claims that presentation of belated problem the petitioner known to should have been diligence but with due occasion, successive the merits of On an earlier petition. presented was raised on whether the claim regardless have been considered the claim whether and without consideration appeal, prior petition, Walker, (See In re in a prior petition. and should have been presented could 463, 764; 467 Crumpton (1973) [106 9 Cal.3d In re supra, 10 Cal.3d Bevill, 911; 770, 4 In re 74], Cal.3d Terry, supra, In re 507 P.2d Cal.Rptr. 854.) 68 Cal.2d supra, rules against piecemeal that the suggested
Our decisions have thereby past undefined are subject and repetitious petitions of claims presentation entertain collateral willing multiple and that court exceptions abusive writ prac- notwithstanding potential on a judgment attacks result, that are or claims raising many prisoners present petitions tice. As a find their court will do so either that this They hope should be barred. rules, or because to the sufficiently compelling justify exception claims default makes will excuse a procedural that this court the possibility remedies for state in order to exhaust the necessity petitioners’ in federal court. of review purposes Corrections, uncer- noting Director of Department
Respondent greater precision with identify created our asks us past practice, tainty usual limitations from the justify departure circumstances which will has already He that the court the writ identified above.8 argues availability in the rule like that applicable a “cause and prejudice” or should adopt In re Waltreus exceptions to the rules of clarify asks us to and limit the 8Respondent also Dixon, 9, 1001], 41 Cal.2d supra, and In re Cal.Rptr. 224 P.2d 62 Cal.2d 397 [42
769
show
court to
Under that rule a
“must
petitions.
federal
successive
(Murray
for the
default
thereto”
cause
attributable
procedural
prejudice
406-407,
S.Ct.
v. Carrier
U.S.
L.Ed.2d
Zant,
2639])
(See
McCleskey
to obtain
review of defaulted claim.
also
1454].)
Under that
supra,
ap-
Petitioner that this writ” argues court does not have an “abuse of the not doctrine should follow the lead of the court in restricting federal successive habeas He section corpus petitions. contends that (discussed post) 1475 the sound mandate that court consider policy successive their not when the petitions only petition alleges on merits facts, in the law in in change or but which applicable any case no order show cause issued prior on petition petitions.9
We are not that either persuaded section 1475 or sound mandates policy warrants of unjustified judg- consideration successive collateral attacks on ment of conviction.
a. Abuse the writ. of
This court has never abusive practice condoned writ or repetitious collateral attacks final on a judgment. the merits of successive Entertaining is inconsistent with recognition our delayed repetitious presentation is an claims abuse the writ.
“It is the this court an policy deny application habeas which is based grounds upon urged which been prior has petition denied, where there shown change is no the substantially facts or law affecting the rights of petitioner. And as to the presentation [Citations.] grounds of new based on known matters to the at the time petitioner 759, that claims that were or could have been raised on are not on appeal cognizable Harris, corpus. habeas question That is post, before the court page In re 813 [21 Cal.Rptr.2d 855 P.2d and will not considered 391] here. cause, 9The denial of corpus petition a habeas without issuance order to of an show often denial,” referred to as a “summary does not mean that the court has considered the merits of the claims. procedural Unless a bar apparent, is will court determine whether relief, i.e., which, prima true, states a facie case for whether it states facts if entitle the petitioner (In to relief. re Lawler 23 Cal.3d Cal.Rptr. P.2d [588 1257].) re in In Drew 188 Cal. judgment, attacks previous upon 249], ‘not for habeas applicant P. it was out that pointed . had his this but. . validity judgment, had court to attack the day this but objection, such each of which he could have days, urged several on so’; be allowed to present did not do it was held that ‘The cannot him against reasons against validity piecemeal his ” Horowitz, (In re general for the same proceedings purpose.’ successive 534, 546-547.) 33 Cal.2d supra, merits, denied the court has
When a corpus petition facie claims in that do not state a prima determined that the made A addi- presenting to relief. successive entitling case earlier attack on claims that could presented tional been *19 is, of a Petitioner offers no judgment necessity, delayed petition. persuasive merits of claims. the such routinely permitting reason consideration of unreasonably delays Were we to we which practice do so would sanction the execution of and undue on state both judgment burdens imposes in marshalling stale to claims made responding delayed petitions also evidence when retrial is Successive waste scarce petitions necessary. the record the trial as the court review of judicial repeatedly resources must the the claims and assess order to assess merits of the petitioner’s which the of he deprivation complains. of constitutional prejudicial impact the of Willingness petitions the court to entertain merits successive by finality relief of seeking the basis of the same set of facts undermines the on Moreover, the positive the such judgment. piecemeal litigation prevents deterrence, confidence from certainty, attaching values of and public The values that inhere in a final are threatened judgment. equally relief claims could have raised by raising collateral been petitions a prior petition.
b. 1475. Section may Section 1475 not alter conclusion that such petitions does our be should denied.
Section decline consider 1475 does not limit the court’s power their The petitions successive merits. court an require explanation failure such are for the to include claim or claims on which petitions in the prior impor- based sufficient to petition—a justification outweigh of tance of of and to on the court finality judgments justify imposition the burden of each which claims of reviewing multiple petitions, presents of error or conduct and demands reviews the record prejudicial repeated the trial proceedings. of the 1475 is to control abuses legislative underlying section purpose jurisdiction
writ and with over habeas thereby courts spare “If the It in pertinent part: burden now repetitious petitions. provides hearing been after the by judge writ has court or a thereof and granted any remanded, he shall from prisoner discharged thereof has been not like unless jurisdiction, the same or court custody by any general other Should ground some in fact at the writ. upon existing issuing prior in the for or urge point desire to some of law not raised prisoner writ, then, writ hearing at the the return in case such upon prior prior thereof, had returned no judge been or returnable before a court or superior writ can be upon appro- issued second or other application except by thereof, court of or or priate judge by Supreme some or Court appeal thereof, some and in made judge such event such writ must not be event, any returnable before court thereof. In the superior any judge or however, that the writ returned made a court prior was or returnable before thereof, no writ can other appeal any judge be issued second or upon thereof, application Court some such except Supreme judge writ must be made judge returnable before said Court or some Supreme (§ 1475.) thereof.”
Petitioner notes that repeated this bars provision applica tions the to same level of only court when a raises the same issue as a petition and if prior a writ issued10in the to response prior petition. He assumes on that basis that the Legislature has implicitly permitted successive raising new claims or on for relief repeated applications the ground same if no writ or order to show cause has issued and there has been no on the claim hearing or The history suggests claims. of section 1475 otherwise. The statute does not courts to consider compel peti successive merits, their tions on nor does it the purport power to restrict court’s inherent to control its calendar and abuse the writ. prevent of
Section 1475 was in initially codified of the Penal Code of part 1872. Penal Code the reenacted the preexisting implementing statutes inherent and constitutional of authority a court of record to the writ grant 1863, 260, (Stats. 334; 19, ch. p. 15), Stats. ch. and the restricted p. authority of the county courts to issuance the of writ on petitions by persons 10Because the writ itself commands the the petitioner bring custodian of to the petitioner before the court to the resolve claims made in petition, procedure appellate the a ill-suited to procedure, court practice the of issuing order to cause respondent show to the has been 870, 873-874, (See substituted for issuance of Hochberg (1970) the writ. In re fn. 2 Cal.3d Cal.Rptr. 1].) 471 P.2d applies Section 1475 a therefore if the court issues either writ or an order to show cause. restriction, however, reflected initial the the That located within county.11 writ, that this recognition and the to abuse of the control legislative attempt to judge- curb had to restrictions impose judicial court been forced already and repetitious petitions. shopping 222. (1858) 11 Cal. parte do so in Ex Ellis
This court first to attempted Ellis, County, El a Dorado who convicted of misdemeanor had been the concerning The act returnable the Court. Supreme writ before sought the (Stats. 334) then p. provided ch. writ of habeas court, Court, any the or any of might Supreme judge writ the granted courts, it issue and required court or of those county any judge district the the The court noted after return. without and be heard delay immediately this writ are made to tribunal with which the “frequency applications Ellis, (Ex parte supra, of other counties” custody the part persons which restricted of the statute 223), Cal. at and undertook a construction p. We was held. the county of the writ to the which issuance misde- giving could not have Legislature contemplated reasoned that the whole State meanant from the of selecting judiciary “the privilege allowing he his application” individual whom to make prefers Construing other make counties. applications judges and contradiction injustice, that manner “would lead to possible statute Therefore, held, issued 224.) the writ should not be absurdity.” (Id., at we p. act. or was unable to county judge to run out unless local refused deprives process “This of a citizen and right people, secures injure power public intended to be used for beneficial purposes The mere costs. interests onerous by possible escapes, delays, interests of the against people not to caprice prisoner ought prevail (Id., 225.) and the at public convenience.” p.
An of this 1862 amendment the Constitution of 1849 and inclusion of in were restriction in section when the Penal Code was 1872 adopted 1475 abuse, neces- The deemed it Legislature not sufficient to control however. 1905, in ch. (see to in Stats. sary amend section 1475 1905 and again 544, 1, 706; 1907, 286, 1, 560) abuse continuing Stats. ch. to curb p. p. § § originally provided: 11As codified section 1475 corpus granted: writ The of habeas Court, thereof, By upon petition any persons behalf Supreme any “1. the or Justice on of issued, may the liberty restrained of in When it be made returnable before his this State. so thereof; thereof, Court, any any County any Judge or Court or Justice or before District or thereof, Courts, By Judge upon petition any person “2. a on behalf of the District or districts; of liberty respective restrained in their his Courts, thereof, By Judge petition any person “3. a on behalf of County upon the of liberty respective restrained his counties.” their writ habeas was of the writ.12Because the denial of a for of petition corpus res to the ruling judicata and a a is not as appealable denying not petition 251; 247, (Matter (1865) Perkins Ring raised 28 Cal. Matter issues of of 424, (1852) 430), with successive Cal. the courts continued to be burdened to to the therefore acted restrict petitions. Legislature petitions presented a the rejected same level court that had heard and unless prior petition, of stated a basis for relief that had not when the existed prior was denied.13
We have never
grant
authority
construed section 1475 as a
of
statute,
filing
any
successive
barred
the
expressly
by
however, and have continuously exercised our
to
the courts
authority
protect
from
on their
Chief
imposition
by
duties
writ
Justice
repetitious
petitions.
334],
Beatty
did
parte Mogenson
so Ex
When similar abuses court, Chief the entire by earlier after denial of an of this court well, in even as petitions extended the restriction those Angellotti Justice issued, petitions intimated that successive had in which no writ cases was such itself: “Not entertained the court routinely by would not be restraint, but the detention or to the same regard application [prior] with a urged, now were the same as those the former application grounds circum- under certain it be that elaboration. While degree of greater a second entertaining appli- itself feel warranted might stances the court restraint, it is manifest the same detention regarding cation from a party court, justice, chief or associate justice be he that no member of single the same denied as to writ where the same has been warranted granting (Matter Udell Bank.” or restraint the whole court by detention 23].) P. 171 Cal. 600 [154 decisions of this court clear these and the subsequent
It is from above, for writs petitions created limitations on noted which have additional never sole that 1475 has been construed of habeas section corpus, has not and that the Legislature limitation on successive petitions to entertain such this court compel enactment of that section attempted above, emphasized the court has on their merits. As noted petitions Horowitz, and, in re successive are not permitted repetitious 701, 705, 546-547, Connor, Cal.2d supra, In re supra, 33 Cal.2d Drew, Cal. has condemned supra, piecemeal presentation In re legislative decisions reflect policies supplement of known claims. Those their a curb on also have as they purpose restrictions on corpus; will the writ of habeas Before successive corpus. abuse of failure to explain justify entertained on its merits the must petitions. in a manner his timely prior petition claims present Delayed and/or Successive Petitions. 2. Justification the merits of a second or successive considering petition, Before the claims will whether the failure to present California court first ask ex new in a has been adequately underlying prior petition and whether that justifies piecemeal presentation plained, explanation in view interest This is reasonable requirement claims. petitioner’s *23 in the state in out the interest of the carrying judgments, respondent its retry to to the case should the ability respond to and having invalidated, judicial system. be burden on the justification pre- assessing petitioner’s explanation delayed future, sentations of claims in the will whether the the court also consider discovered, based, facts which the is could although only recently claim and should have been discovered earlier. A will be to petitioner expected due If pursuing demonstrate claims. had diligence potential available, to reason that basis for relief was but did suspect habeas corpus nothing to confirm those must be promptly suspicions, justified. failure
However, where the factual basis for a claim to the peti- was unknown made, tioner he had no reason believe that claim might claim, where the was unable to his court will continue present consider merits of the claim if asserted as as promptly reasonably And, possible. in the past, change claims which are based on a law which is final will if retroactively applicable judgments be considered if promptly asserted and application of former rule is shown to have been prejudicial.
With the exception petitions allege which facts that a demonstrating occurred, fundamental miscarriage justice has to be ad- exception below, dressed unjustified successive will not be entertained on their merits. petitioner,
This
in common with others who have filed multiple petitions
attacking
Zant,
same judgment of conviction since
McCleskey
supra,
decided,
(hereafter
Attempts to justify a failure to make all of a petitioner’s claims the first petition by on the relying Supreme McCleskey Court’s decision are unper- suasive. McCleskey construes and implements a federal statute governing successive petitions (Rules to federal courts by prisoners. state Governing Cts., Cases 9(b) U.S.C.] § U.S. Dist. rule 9(b)].) The [Rule decision does not control availability of relief in the courts of this state. (In Shipp, supra, re instructive, 553-554.) Cal.2d McCleskey however, since the high court recognized there that abusive writ practice has a serious on the impact states’ administration of criminal justice. *24 776 law and common statutory reviewed McCleskey, Court Supreme in federal courts. writ of habeas abuse of the
efforts to control in of successive that abuse the form The court concluded high also earlier and is abandoned deliberately a claim has been exists when could have been in a subsequent petition claim presented found when a L.Ed.2d at pp. at 488 (499 p. in earlier U.S. petition. [113 presented 541-542.].) to excuse the discretion equitable the federal courts have
Recognizing the Supreme petition, claims the first habeas corpus failure to include all faces this court—how which often question to resolve attempted Court raise for failure to has a excuse legitimate determine whether a petitioner time, i.e., court high clearly petition. a prior claims at appropriate successive governing which California decisions recognized the interests reflected: delayed petitions long finality is the very objects One of the law’s finality. writ strikes at
“[T]he
can be vindicated
just punishment
of its
Neither innocence nor
judgments.
law is
the criminal
finality,
until the final
is known. ‘Without
Lane,
U.S.
309
Teague v.
489
of much of its deterrent effect.’
deprived
334, 354-355,
habeas
(1989). And when a
L.Ed.2d
“Far
severe are the
when a claim is
disruptions
presented
more
If
review of
time in a second
. habeas
subsequent.
petition.
.
‘[collateral
accused,’
trial
and the
society
a conviction extends
ordeal of
for both
Engle
[(1982)
v. Isaac
456 U.S.
at 126-127
L.Ed.2d at
799-
pp.
107]
800],
during
proceedings. Perpetual
the ordeal worsens
collateral
subsequent
entire criminal
for the
of convictions
disrespect
finality
disparages
542-543].)
(
That decision is irrelevant to petitioner’s burden this however. The that the suggestion decision of McCleskeyjustifies piecemeal presenta- tion of claims to this court both that there implies was no federal prior authority identifying piecemeal of claims presentation abuse of writ, and that there has been no state comparable requirement governing habeas corpus claims. Neither proposition is supportable. shown,
As we have piecemeal presentation known claims and repeti tious presentation of previously denied claims have not been condoned this state. federal courts have also disapproved piecemeal presentation of claims. a series of Considering repetitious federal habeas corpus petitions, stays of execution of judgment, appeals by prisoner a state Barefoot 1090, 103 Estelle 463 3383], U.S. 880 L.Ed.2d S.Ct. [77 Supreme recognized Court the interest of the state and the potential abuse of “writ. ‘To the extent that and successive habeas corpus petitions] [second involve the that a danger condemned inmate might to use attempt repeated tactic, as a mere appeals delaying the State has quite legitimate interest in preventing such abuses of the 9(b) writ.’ . . . Rule states that ‘a second or successive if the petition may be dismissed judge 778 relief... grounds [or if] new or different allege that it fails to
finds in a constituted grounds prior petition assert those failure of the States, 373 U.S. See Sanders v. United an abuse of the writ.’ 162-163, Note to (1963); Committee Advisory S.Ct. L.Ed.2d 1068] U.S.C., L.Ed.2d at (463 pp. U.S. at 9(b), p. Rule 273.” p. 1105-1106].) *26 541, Thereafter, L.Ed.2d in v. Hutchins 464 U.S. Woodard [78 order, Court, 752], vacated a of stay in a curiam per S.Ct. the Supreme the Appeals the United States Court of by judge execution a of granted concurred, Powell, other joined by justices, four
Fourth Circuit. Justice
was a
corpus
for writ of habeas
that the
observing
underlying petition
failure to raise the claims
filed
successive
without
petition
explanation
(
While a concern of the court was that second major Hutchins, filed on the eve of supra, had been Woodward v. petition execution, include all claims that failure to court’s statement A limited. an abuse of the writ was not so original was petition in federal McCleskey change claim constituted a reasonably cannot that include all a failure to justified habeas somehow corpus procedure claims in the initial state petition.15 known for a
Petitioner that a own basis argues knowledge prisoner’s claim should irrelevant if there “previous development has been no 148, 162-163, 14In Sanders v. United States L.Ed.2d 83 S.Ct. 373 U.S. 18 [10 1068], deliberately withholding a claim in an initial habeas the court had stated that petition right hearing petition, could be a to a on the second could deemed waiver ground during hearing “Nothing first in the traditions of petition. abandonment of on the litigation, or to corpus requires piecemeal habeas the federal courts to tolerate needless vex, harass, proceedings only purpose delay.” entertain collateral The court left whose is to ruling a successive judges any to the “sound discretion” of federal trial on whether merits, (Ibid.) justified was however. or should be denied without consideration of because, McCleskey suggested during argument 15Petitioner’s counsel oral is relevant decision, practice, comply in order to with that and in accord with federal habeas and belief.” allegations corpus petitions factual in federal habeas are made on “information gathering support provides When the federal court then funds to assist evidence claim, the state prior petition facts are were was denied in discovered that not known when legal theory.” claim all the relevant and a This is combining historical facts A the facts which he not the rule. who has prisoner knowledge upon he delay believes that is entitled to relief must relief. explain any seeking (In He who then Shipp, supra, 553.) may re 62 Cal.2d counsel rely if him include filed he by the claim a to be counsel represents counsel, has alerted to the If he not he need counsel issue. represented based, legal theory fully on which claim is but must “develop” Swain, (In fairly state the facts which underlie the claim for relief. re supra, 304.) Cal.2d concedes
Petitioner that whether there has been a of counsel is change irrelevant to whether the the first time in merits claims raised for should be successive entertained. The rule has been that the court will to what look and/or his counsel knew at the time of the appeal or the of the first filing and demand that failure to corpus petition, *27 raise all issues a be single, timely justified. Any other rule would petition counsel, put a of premium changes wholly and would undermine repeated the the policy underlying court’s refusal the to consider merits of successive And, petitions offering piecemeal presentation of claims. we indi- above, cated in the future a habeas like a corpus petitioner, who petitioner “ nobis, mounts collateral attack by petition for writ coram ‘must show that the upon facts which he him relies were not known to and could not in the exercise of due diligence have been him at by discovered time any ” substantially earlier than the (People time of his for the motion writ.’ v. 226, Shipman, supra, 230.) 62 Cal.2d circumstances,
In limited consideration may given to claim that prior habeas did not corpus counsel competently represent petitioner.
An imprisoned defendant is entitled
due
to
by
process
reasonable
courts,
to the
access
to
assistance of counsel if counsel is necessary
access,
to ensure that
but neither
Eighth
Amendment nor the due process
clause of the United States
gives
Constitution
even in
prisoner,
a capital
case, the right to counsel to mount a collateral attack on the judgment.
(Murray
v.
Giarratano
Regardless
habeas
is
for writ of
who is represented
counsel when
all
and is
competent
presenting
assume that counsel
right
filed has a
see,
Thompson, supra,
Coleman
v.
(But
meritorious claims.
potentially
there can be no
U.S__[115
to counsel exists
right
L.Ed.2d
no
640] [where
Dugger
Antone counsel];
(1984)
Petitioner states that the new claims made would have denied in the had this court not prior petition “summarily preemptively “developed” that and that the additional claims had not been petition” time it was him include them in that at the sufficiently petition to enable to assume, however, a for filed. court must and will petition includes all claims then known to petitioner. writ of habeas corpus which does not state a facie case prima Summary disposition petition Gonzalez, 1179, 1258-1259; supra, 51 Cal.3d see (People relief is the rule. also, 1989) (2d & Extraordinary 6 Witkin Cal. Criminal Law ed. Epstein, Writs, parte Ex (see 4170.) This established is too well p. practice § Walpole (1890) 84 Cal. 308]) inference P. to warrant any 584 [24 are will action justified believing routinely delay that the court petitioners a filed amendment and petition permit supplementation petit A facie case petitioner ion.16 who is aware of facts adequate prima state in the for habeas relief should include the claim based on those facts corpus if the If the is even claim is not petition fully “developed.” petition delayed is all because the not able to state facie case for relief on prima exist, bases believed habeas relief delay seeking justified when the if demon ultimately filed can petition existed, (1) strate that he had reason to believe other meritorious claims good the existence of facts those claims could not with due supporting diligence have been confirmed at an earlier time.17
Petitioner’s he assertion that would have added additional claims to his it prior petition had not been denied neither nor justifies the failure explains re to include the Haygood (Cf. claims prior petition. [counsel, Cal.3d 802 Cal.Rptr. 537 P.2d after appointed 880] issuance an order to show cause on petition prepared persona propria inmate, by prison reviewed record and discovered ground additional 16The inclusion in habeas corpus petition purporting right of a statement to reserve the supplement or petition amend the at a later date has no effect. will The court determine appropriate disposition aof for writ of allegations based on the originally as any filed and supplemental petition amended or for which leave to file has granted. been The court determines on the the allegations original basis of and the supplemental amended or petition, if any, supporting documentary well as the evidence affidavits, available, and/or which should be attached if prima entitling whether a facie case *29 petitioner the so, to allegations relief if the proven are has the been stated. If issues an court directing order the respondent to show cause why sought the relief be granted should not issue, based on those allegations. to When an order show cause does it is limited to the claims petition raised in the and the factual bases for those alleged petition. claims in the It directs respondent the to address those issues. the allege While traverse additional facts in support issued, of the claim on to which an order show attempts cause has to introduce additional claims wholly different factual bases for those in a expand claims traverse do not scope of the proceeding which is limited the claims initially which the court determined 1, stated a prima 43, facie case (1980) for relief. (People v. Green Cal.3d 27 fn. 28 [164 1, Connor, Cal.Rptr. 468]; 701, P.2d In supra, 711.) 609 re 16 Cal.2d delay however, 17The will not be justified, deemed unless the petitioner demonstrates that good there was reason to believe investigation that further lead would to facts supportive a clearly if, meritorious will delay justified claim. Nor be notwithstanding deemed substantial, claims, existence of potentially petitioner delays filing petition meritorious in order to investigate potential questionable claims of merit. 782 leave unaware].) may grant The court had been
relief of which the petitioner 14 supra, Cal.3d (see, Haygood, In re e.g., file petition a supplemental 802, action on delay either to do so or to 805), no obligation but has will be forth to the supplement petition in the that a expectation corpus petitions of habeas The law mandates prompt disposition coming. judgment weighs in the (§ 1476), finality and the interest of the state re Eli (See In of pending petitions. heavily against delayed disposition 214, 665, 337]; re Arguello, 454 P.2d 218 (1969) Cal.Rptr. 71 Cal.2d [77 613, 13, 17; Cal.2d re Cal.2d In Anderson supra, 21, 117].) 447 P.2d Cal.Rptr. noted, ex has not adequately as we have
Although, in prior petition, claims his present his failure to include all of his plained Instead, rest on that omission. does not present petition our disposition in supplementing in the new claims and delay making we turn to his made. basis for claims evidentiary previously Delay. 3. claims, that, his peti his newly presented
Petitioner as to argues was taken prior law” and because his appeal tion is under “settled timely in filed for petitions timeliness standards express this court’s publication Arising Cases From (See Court Policies Supreme Regarding cases. capital 21, 1992, 1989, Death, stds. eff. December eff. June mod. Judgments their [Policies].) began investiga that counsel 1-1.1 to 1-3 Petitioner asserts which govern those Policies tion as soon as this court promulgated investigating possible cases. In June 1989 counsel began capital had judgment imposed a case which been bases for habeas the first after the Policies were years adopted 1985. Almost two February first, filed five after the was This second months petition, was filed. filed than two after Policies. years publication more had knowledge Even June a habeas who corpus petitioner before that any a habeas existed was on notice grounds corpus petition that known had to after the became delay filing petition grounds substantial 1; (In Stankewitz, 391, 396, People fit. supra, re 40 Cal.3d justified. be 1222].) 514 P.2d Jackson 10 Cal.3d Cal.Rptr. delay filing that the could any suggestion refutes Stankewitz in the affirmed. The citation of until was Stankewitz made it clear delay justified applies Policies requirement *30 in cases. all habeas those defendants corpus including by capital petitions, after affirmance of a Petitioner’s that a filed argument promptly a rule that the more judgment holding on is appeal timely presupposes
783 in for greater justification delay the the the appellate process, prolonged in never the not and has been practice habeas relief. That is seeking corpus in where the cases capital state. It would be particularly unacceptable this years during is often several appeal time from to decision of the judgment determining underlying there in facts increasing difficulty which is case, and, thus, if necessary. retrying and have that a explain Our decisions consistently required Swain, (In supra, a claim. re justify any delay presenting substantial 300, 304.) fully Cal.2d “It is also the rule that ‘a defendant must convicted the facts which delaying disclose his reasons for of presentation upon Wells, (In [(1967)] he would have a final re Cal.2d overturned. judgment 547, ; 553; Swain, [supra,] 875 . . In re re Shipp, supra, . 62 Cal.2d Walker, .)” (In Cal.2d 304. re supra, 774.) . . 10 Cal.3d The Policies18 did not create or modify appli timeliness requirements cable to all habeas as a corpus except they insofar establish if a presumption by timeliness defendant is filed within capital days of the final date due for the an brief filing of appellant’s reply (Policies, 1-1.1); std. take into account this in In re court’s decision Stankewitz, supra, 40 evaluating Cal.3d when the timeliness of a habeas in a corpus petition (Policies, 1-1.3). case capital std. did, time,
The Policies for the first an impose express obligation on counsel representing cases to appellants capital investigate possible bases for (Policies, 1-1.)19 habeas corpus. std. This share,20 limited, which obligation, counsel cases do not is noncapital however, to an investigation of potentially meritorious for habeas grounds Policies, copy 18A of the current filing revised with concurrently opinion of this to herein, conform to the expressed views opinion. is attached as an to appendix 19Tofacilitate investigation and preparation corpus of a habeas when petition, appellate relief, counsel is aware of may facts corpus which constitute a for he basis habeas is $3,000 by authorized expend up Policies to investigation potential to claim prior approval (Policies, without 2-2.1.) investigation the court. std. Additional sums for may be authorized on application specific court an which identifies the issues to be explored the specific suggest facts which that basis for a potentially meritorious habeas (Policies, through 2-4.4.) claim exists. stds. 2-2.2 expenditure In either case will only considered reasonable investigate facts which have come to counsel’s attention suggesting that a basis relief exist. is not the It intent the court to “fishing authorize fund expeditions” purpose solely any whose if for a discover basis collateral a presumptively attack on valid can be found. 20Appointed counsel in noncapital appeals obligation investigate do possible bases for attack judgment, collateral on the and retained so counsel must do if the client retains them for purpose. Appointed “duty counsel on has a appeal ... to present defendant’s case direct appeal to the authority best his We ability. know no cannot any conceive of holding that appointed prosecute counsel appeal duty direct has *31 in the course of preparing which have come to counsel’s attention corpus to obligation on counsel an impose The does not appeal. appointment uncovering any investigation having object an unfocused its conduct an Only collateral attack on the judgment. factual basis for a possible reasonably facts known to counsel which could investigation into specific claim is anticipated lead to a meritorious habeas potentially known, the claim already When the factual basis for a claim is required. suggest must be unless facts known counsel presented promptly meritorious claims which cannot be stated existence of other potentially without additional investigation. difficulty appellate cases and the resultant complexity capital if determining
counsel after trial and conviction appointed long may a basis in the Where the for habeas exist is Policies. corpus may recognized Policies, standards 1-1.2 and presumption of timeliness is not applicable, govern. 1-1.3 Those standards reflect and into the Policies incorporate in the of a preexisting any delay filing substantial requirement after the factual and bases for the claim are known or should have been legal justified. known must be explained
Policies, “A filed more standard 1-1.2 provides: than after the final due brief days filing date for of appellant’s reply on the direct if it delay alleges establish absence of substantial appeal with facts filed within a time specificity showing was reasonable after or counsel became aware of information a factual indicating prosecute extraordinary appropriate by to file or to an writ believed to desirable or (In We duty.” Cal.App.3d defendant. hold that there is no such re Golia 323].) Cal.Rptr. (Bus. provisions governing attorneys Neither the of the Business and Professions Code & Code, seq.) imposes obligation. Prof. 6000 et nor the Rules of Conduct Professional such § (ABA) The same is true of the American Bar Association Model Rules of Professional Conduct and the ABA Standards Appeals. for Criminal The ABA Defense Function Standards expressly negate obligation: appeal, appellate such an “After a conviction is affirmed on counsel any ground postconviction should determine whether there is under relief other prospect remedies. If there is a reasonable explain favorable result he should to the advantages disadvantages defendant the taking Appellate such action. counsel is not obligated represent the defendant a postconviction proceeding agreed unless he has to do (ABA Project so.” (approved 1971) Stds. for Criminal Justice Draft Defense Function Stds., VIII, Conviction, 8.5, pt. p. 170.) After § As body opinion, discussed in the of this noncapital appellate counsel in this state who are aware of a basis for collateral relief should not await the outcome of the appeal to determine grounds if they obligation investigation collateral relief exist. While have no to conduct an appeal discover if facts outside the record on support petition would for habeas challenge judgment, other to the they representation if learn of such facts in the course of their relief, they obligation have an ethical to advise their client of the course to follow to obtain appropriate take other action.
785 aware, aware, of the claim have become for the and became or should basis added.) (Italics for the legal basis claim.”21 Policies,
A standard who cannot establish timeliness under petitioner 1-1.3, 1-1.2, Policies, “Alternatively, resort which standard provides: if delay alleges it with petition may establish absence substantial aware of showing facts or counsel was specificity although petitioner 16, (the date of January the factual bases for the claim before 1986 legal 391-397, Stankewitz[, (1985) 1) re fn. supra,] of In 40 Cal.3d finality 382, 1, 1262, 384, 1260, 1], the fn. fn. was filed P.2d Cal.Rptr. within a reasonable time after that date.”
We he from reject claim that should excused com petitioner’s with Policies. Not pliance only incorporate preexisting do the Policies requirements, timeliness but the of the Policies demonstrates plain language that their timeliness standards apply including to all those capital appeals, which prior arose In reference in adoption particular, Policies. Stankewitz, the alternative timeliness re supra, standard 1-1.3 to In 40 Cal.3d 396-397, 1, at pages footnote clearly demonstrates that Policies anticipate that, involved, insofar as known claims are cases the effective predating date of the Policies will be within brought their reach.22 Because counsel’s Policies, obligation to investigate possible was only claims created however, claims that were discovered as result investigation 6, 1989, commenced after promptly June date which Policies effective, became will be deemed if timely presented after promptly counsel became aware of them. Policies,
This is not presumptively timely under standard 1-1.1 since it was not filed within 90 after the final date days due for the filing of petitioner’s reply brief on the direct We therefore look to appeal. Policies, standards 1-1.2 and 1-1.3. Petitioner has not satisfied require ments of either standard. petition was filed within a reasonable time Policies, wording 21The standard 1-1.2 implies that the need not establish so, diligence discovering factual claims. If it would be inconsistent with our admonition in 47, 824, In re Streeter 66 Cal.2d 976], Cal.Rptr. 423 P.2d v. People 226, Shipman, supra, Cal.2d person making that a a collateral attack on a final diligence must demonstrate investigating possible legal factual as well bases for relief. It excusing should not be read as diligence respect. in either confusion, 1-1.2, Policies, order to avoid we have wording modified the standard contemporaneously filing opinion, with the requirement this to reflect the have adopted we requires here diligence which discovering legal both the factual and bases for habeas corpus claims. Policies, 22Long adoption before we stated that a should be appeal filed with an where matters outside the record must be considered evaluating (See claim of 412, 426, ineffective counsel. People Pope 23 Cal.3d fn. 17 [152 Cal.Rptr. 1].) 590 P.2d 2 A.L.R.4th Stankewitz, does not supra, allege after In re 40 Cal.3d legal with when he became aware of the factual and bases for specificity *33 Thus, he it is to determine whether the claims impossible claims now raises. are raised within a reasonable time after or counsel became aware petitioner Indeed, and review his claims legal of factual bases for his claims. of most, if reveals that are based on facts that were known at the many, time of trial. We conclude that has failed to establish an absence petitioner in the delay filing of substantial of his petition. Policies, indicates, however,
As standard 1-1.2 alone delayed presentation does not bar consideration of merits of a habeas corpus petition. will court consider the reasons for the proffered delay: corpus “[A] petition should filed as as the the case circumstances of promptly allow. . .. who seeks relief . . . must extraordinary point partic- [0]ne (In ular circumstances sufficient to substantial . . . .” re justify delay Stankewitz, 391, 397, supra, 1.) 40 Cal.3d “The hold that clearly fn. cases which he only allege must not with the facts particularity upon would attack the the delayed final but likewise his reasons for judgment (In 553.) of such re “We presentation Shipp, supra, facts.” 62 Cal.2d are entitled to and we do of a convicted defendant that he with require allege the facts which he final overturned particularity upon judgment would have a and that he disclose in the of those fully his reasons for delaying presentation Swain, (In re supra, 304.) facts.” 34 Cal.2d cases we have and past accepted adequate justification explanation for a between conviction and of a collateral attack on five-year delay filing a judgment, a and make petitioner’s grade inability school education use law, when, of information he because was not aware of the learning law, (In the prisoner immediately the assistance of counsel. re sought Saunders, 1033, 1040; supra, Cal.3d In re see also 65 Cal.2d Perez Cal.Rptr. 418 P.2d between sentenc- [three-year delay 6] and ing where filing petition excused had not completed seventh grade, was not about and knowledgeable legal diligently procedures, used resources available to and prisoners legal research preparation documents].) contrast, an
By 11-year a claim of ineffective delay making assistance of counsel based on failure to evidence present of diminished capacity known to the defendant at the time of trial and when earlier had Jackson, been filed was held unjustified People supra, to be Cal.3d 265, 268-269. claims,
Like the rule barring piecemeal presentation requirement that a petitioner explain justify delayed of habeas presentation will prejudice respon- reflects that a substantial recognition delay claims importance finality ability petition, respects dent’s answer state, of retrial in the event difficulty to the judgments recognizes after the convic- many years that a is aside on habeas set instead no meet requirement, relying tion. Petitioner has made effort to this timely. on his unmeritorious assertion that the legal has stated when he aware of the Petitioner neither became claims, delay presenting factual bases for his nor substantial justified after judgment. claims that it were at or shortly entry known appears *34 C. Exceptions. when, ever,
The if entertain remains should a California court on question the in merits claims made which to be corpus habeas appears barred under of this the imposing decisions court limitations on procedural availability of the rule Any recognize writ. to articulate a must and attempt the accommodate tension between the of a bar invocation procedural corpus relief the and function of the writ as the which a means prisoner may obtain relief from an unwarranted sentence. conviction and/or
1. Federal court limitations.
The
in
Supreme Court considered a similar
v.
problem Kuhlmann Wilson
2616],
In his opinion for a plurality of the Justice Powell recognized the statute had been after adopted Congress recognized had the need to weigh the petitioner’s against interest interest of state in administer- ing its criminal justice system. The still obligation court had an to consider whether the “ends of justice” would be served if a successive was dismissed, but should entertain a successive petition only “rare instances.” It was therefore incumbent on the court to define “ends justice” that would serve the to federal habeas purpose giving finality manner judgments while function of habeas preserving provid- relief from The ing unjust facing incarceration. issue Court Supreme therefore, was, not unlike before this court. recognized
The that even where earlier plurality opinion proceedings error, that the was free “a determined trial from constitutional prisoner from powerful legitimate obtaining retains interest his release if he is he was That custody charge innocent of for which incarcerated. however, extend, interest does not guilt whose is conceded prisoners Wilson, (Kuhlmann supra, L.Ed.2d plain.” 477 U.S. Powell, J.).) (plur. opn. by 379-380] then in the plurality recognized countervailing state’s interest crime,
finality of judgments, its deterrence of and rehabilitation punishment prisoner, of the and the of a delayed reversal of impact ability state to prisoner, concluded: ‘ends of retry justice’ “[T]he require federal courts entertain such where the petitions only prisoner *35 his claim supplements showing constitutional with a colorable of factual innocence. This standard was proposed Judge Friendly more than ago decade as a for federal review prerequisite generally. habeas [Citation.] then, Judge As Friendly that the persuasively argued requirement prisoner come forward with a colorable showing of innocence identifies those habeas who are their petitioners justified again seeking relief from incarceration.” Wilson, 436, 364, (Kuhlmann v. 477 supra, U.S. 454 L.Ed.2d [91 381-382] Powell, opn. J.).) of (plur. the Supreme
When Court revisited the of of question abuse of the writ and in corpus,23 of particular problem piecemeal presentation of 467, issues successive in McCleskey, petitions, supra, 499 U.S. the court Governing 23Rule of the 9 Rules United States 2254 Cases in [28 Section the United Code] States District Courts delayed petitions, addresses both providing: successive “(a) Delayed petitions. petition may A appears dismissed if it that the state which of respondent is an prejudiced ability officer has been respond petition by in its to the delay filing in its petitioner grounds unless the shows that it is based on of which he not could knowledge have had by the of diligence exercise reasonable before the circumstances prejudicial to the state occurred. “(b) Successive petitions. A second or petition may judge successive be dismissed if the allege finds that it fails to grounds new or different prior for relief determination was or, merits grounds judge on the if new alleged, and different are finds of that the failure grounds prior (28 to assert those in a an abuse constituted of the writ.” 2254.) U.S.C.A. rule foil. § Advisory explains: The Committee Note “This rule is intended minimize abuse of the writ habeas corpus by limiting right multiple assert stale claims and to file petitions.” foil, (Note 2254.) rule 28 U.S.C.A. foil. §
789
cause for the failure to
if
did not establish
the concluded
error,
a successive
from
prejudice
a claim a prior petition
present
if a “fundamental
be entertained a new claim should
petition presenting
(Id.,
failure to do so.
at pp.
would result from a
miscarriage
justice"
of the
545].)
reasoning
The
noted the
L.Ed.2d at
court
p.
494-495 [113
Wilson,
that a
and concluded
supra,
in Kuhlmann v.
477 U.S.
plurality
justice”
the “ends of
satisfy
would
miscarriage
justice”
“fundamental
the view of
it
embraced
doing
apparently
of federal law.
so
requirement
in
factual
notwithstanding
the Kuhlmann
that only imprisonment
plurality
stating:
miscarriage
justice,”
nocence would constitute that “fundamental
“The
as ‘an additional
to cause serves
miscarriage
justice exception
an unconstitutional
an innocent man to suffer
safeguard against compelling
Powell,
492-493, n
at p.
loss of
U.S. at
L.Ed.2d
liberty,’ Stone v.
[49
1086],
(499
U.S.
that the ends of
will be served
full.”
guaranteeing
justice
Then,
at
that the
545-546].)
holding
L.Ed.2d at
after
p.
pp.
there
met
test for the late
had not
the “cause and prejudice”
elicited in
presentation of his claim that a confession had been
violation
Massiah v. United States
L.Ed.2d
84 S.Ct.
Applying
standard
the case
in
before
the court noted that
Louisiana,
the state which the
had been
petitioner
convicted of capital
death,
murder and sentenced to
eligibility for the death
was
penalty
based
conviction of
murder and a
capital
finding factors out-
aggravating
Therefore,
weighed mitigating factors.
the sentencer was
find the
required existence of at least one
factor
aggravating
defendant could not be
sentenced to death.
evidence
Mitigating
that trial counsel had not presented
was held to be
(and
irrelevant to actual innocence of the death
thus
penalty
to finding a fundamental miscarriage of
since it
justice)
could not be said
that no reasonable jury would have found the petitioner eligible for the death
However,
penalty had the evidence been before it.
other evidence not
available to the
because
petitioner
alleged
Brady
violation of
Maryland (1963)
penalty is determined by weighing aggravating and mitigating against factors one another, constitutional error related to mitigating evidence may Sawyer be considered under v. U.S._[120 Whitley, supra, 505 (9th 1993) L.Ed.2d Whitley In Deutscher v. 269]. Cir. 991 605, F.2d the court held that mitigating evidence jury withheld from the because of counsel’s because, incompetence statutes, could be considered under the applicable Nevada the death penalty circumstance, could not imposed unless jury found at aggravating least one and further found that there mitigating were no circumstances outweigh aggravating sufficient to However, circumstances found. by failed to show clear convincing evidence that had the evidence been him jury before the no juror reasonable would have eligible found for penalty. the death
791 2. State court limitations. and equivalent habeas corpus of ensuring availability
The problem which has resulted fundamental error correct remedies to postconviction writ, defendant, is abuse controlling while of a criminal imprisonment A Thread” to "Clue Mello, Ariadne’s Provisions: (See & new. Robson Independent State Adequate and Default, the Procedural the Intricacies of Goldstein, 87; Grounds, Penalty Florida’s Death (1988) 76 Cal.L.Rev. Corpus Federal Habeas to Successive Principles Res Judicata Application of (1987) 21 Equitable Approach The Search Capital Petitions in Cases: Penalty; and the Death 45; Catz, Corpus Federal Habeas U.C. Davis L.Rev. 1177; Exception (1985) 18 U.C. Davis L.Rev. Need a Preclusion Doctrine Assistance Comment, Alleging Petitions Repetitive Post-Conviction Ineffective Court Tame the “Monster?” Pennsylvania Supreme Counsel: Can 237.) (1982) L.Rev. 20 Duq. California, limi- created judicially
Like have and/or statutory most states to attempted have also tations on successive Some of these states petitions.26 rules, rules, governing articulate achieve consistent application to have Others to the limitations on successive exceptions imposed petitions.27 no express standards. Procedure, 20.2; 26See, v. State rule Blount e.g., Temporary Alabama Rules of Criminal Procedure, 3.850; 498, 501; 1990) rule of Criminal (Ala.Cr.App. 572 So.2d Florida Rules 583; (Fla. 1991) chapter v. So.2d Illinois Revised Statutes
Francis
Barton
122-3;
374];
(1968)
Kentucky Rules of
Polansky
v.
Ill.2d 84
N.E.2d
paragraph
People
[233
Procedure,
11.42;
1966) 407 S.W.2d
(Ky.Ct.App.
Criminal
rule
DeWeese v. Commonwealth
403;
854];
1960)
Montana
Ingram
(Md.Ct.App.
v. Warden
Post Conviction Act Pennsylvania Consolidated Stat- (now utes section 9541 et the Act), Post Conviction Relief included an seq. exception to its rules which deemed an issue “waived” “finally litigated” on bases similar to those this court. That the applied by exception permitted court to consider the merits of a PCHA if those bars petition notwithstanding was able ‘to existence of circum- prove extraordinary 25, 1966, (Act stances to his failure justify to raise the issue.” of Jan. Pa. (1965) 1979-1980).) Laws 1580 19 Pa. Stats. 1180-4 Constru- (Supp. § § ing the in “extraordinary Watlington circumstances” Com. v. exception (1980) 431], 241 491 Pa. A.2d held Court Pennsylvania Supreme that serial ineffectiveness of appellate succeeding counsel failing allege ineffectiveness of counsel and trial prior counsel constituted circumstance. extraordinary Watlington 1988 the rule had
By itself to stem the tide proved inadequate of successive (1988) and was abandoned. In petitions Com. v. Lawson 107], Pa. 504 A.2d Court Pennsylvania Supreme addressed “vexing (Id., 108.) problem repetitive at “This petitions.” p. appeal evidences the if problems can arise we relief to permit post-conviction destroy any concept of our decisional in the area of finality process criminal law. . . . to the of our importance integrity system juris [I]ts attention, prudence requires (Id., 110.) our . . .” at The court concluded p. PCHA, that the intent of the Legislature, as reflected curtail assaults on continuing judgments, had been undermined by “overly generous judicial decisions have fact magic words ‘ineffec permitted [which] counsel,’ counsel, tive assistance of prior regardless of the number of prior to be with the equated concept (Id., circumstances. . . .’” ‘extraordinary 111.) at p.
The solution was to dismiss without hearing a second or subsequent application relief postconviction prima “unless a strong showing is facie occurred, offered to demonstrate that a miscarriage justice may [f] We hold that the mere today assertion of ineffective assistance of ...[][] counsel is not sufficient to override the waiver and ‘finally litigated’ provi- P.C.H.A., sions as to permit filing of or serial repetitive N.J.Super. 1954)), (App.Div. A.2d 684 our courts have not hesitated to ‘ascribe influential, but not necessarily controlling weight findings prior proceeding’ in the [cita in an exercise of their power protect privileged undoubted this tions] writ of freedom from pollution by filing repetitious applications of successive and pertinaceous therefor (Worbetz relator N.J.Super. Goodman 4 (App.Div. [citations].” A.2d 391 [136 1957)]. See 1960)] also State v. DeLucia N.J.Super. A.2d 83 (App.Div. 90 [164 [“Having , a previous occasion rejected considered and defendant’s assertions . . . this court now power exercise its to shield itself from a defendant’s abuse of the writ of habeas corpus.”].)
793 A serial petition that statute. repetitive under the banner of of miscarriage a demonstrated avoiding entertained for the of purpose (549 fn. A.2d at p. which civilized can tolerate.” justice, society no omitted.) “if the can demonstrate
The new Lawson standard is satisfied unfair that were so (a) resulting either: that the his conviction proceedings can tolerate or society which civilized miscarriage justice occurred no (Com. Laskaris (b) he the criminal v. charges.” is innocent of 1229, 1231]; (1990) 394 Ryan A.2d Com. v. 440 Pa.Super. [595 949, 950].) A.2d Pa.Super. of a showing
Other states “cause” all instances and require require will be miscarriage justice before the merits of a successive petition considered. Criminal Procedure establish Appellate Alabama’s Rules of 20.2(b) state’s Rule Rules Criminal standard. of the Alabama Appellate Procedure “The shall relief on a second or succes- provides: grant court not sive petition on the same or similar on behalf of same grounds petitioner. A second denied unless or successive on different shall be grounds ground shows both that cause exists new good why were grounds through not known or could not have been ascertained reason- heard, able when the failure entertain diligence first was and that will result miscarriage justice.” The Florida rule summary does not reflect any exception, permitting denial of successive for relief “unless the movant postconviction motions that the alleges asserted were have been grounds not known could not known to the movant (Christopher at time the initial motion was filed.” (Fla. 1986) v. State 24.) So.2d Illinois, claim of substantial “[a]ny rights denial of constitutional Stat.,
raised
the original
(Ill.
or an amended petition is waived.”
Rev.
ch.
“
(1965).)
122-3
par.
‘The
prior
petitions
denials of
post-conviction
judicata
are res
all
claims raised therein and
all
claims
constitutional
”
which could have
(People
Polansky, supra,
been raised.’
233 N.E.2d
also,
375.
People
See
v. Holland
Ohio the court its permits good discretion and for cause shown” to consider second or successive whether based on the same facts or Ann., (Ohio on newly 2953.23(A) discovered evidence. Rev. Code § (Anderson 1993).) ... a trial to file “Accordingly, court is not required findings of fact and when declining conclusions of law to entertain a second *40 alleges relief which the same petition post-conviction or successive (Ohio 1988) (State ex Workmanv. McGrath as earlier rel. grounds petitions.” 105, 106.) 532 N.E.2d successive
New
that res
do not bar
recognizes
judicata principles
York
re
administration
“orderly
the same
but notes that
grounds,
petitions
Wood
(People
circumstances.”
ex rel.
showing
changed
at least a
quires
46, 47.) A successive
(1990) N.Y.S.2d
Berry
ard v.
A.D.2d 119 [559
(People ex rel. Sassower
with no new
not be entertained.
petition
ground may
608, 609].)
(1985)
Utah Rules of Civil rule provides “if that the presented dismissed as “frivolous on its face” it is issues apparent . . .” already adjudicated. been law is not powerless The Utah Court has observed that “the Supreme and frustrate the ends of abuse who burden the courts prevent by prisoners The law can and does a case alive justice by trying keep indefinitely. for writs.” itself vexatious and abusive successive protect against (Hurst (Utah 1036.) The held that 1989) v. Cook 777 P.2d court then relief to bar “a of the same is sufficient prior adjudication ground A showing good on that absent unusual circumstances. relitigation ground cause that of a successive claim be established justifies filing is, (1) to a new law that right the denial of a constitutional showing pursuant be, , known which (2) retroactive . . . new facts not might previously the outcome might change would show the denial of a constitutional right , (3) unfairness a convic of the trial . . . the existence of fundamental tion, , good of a sentence . . . or a claim overlooked illegality a second faith with no intent or abuse the writ. . . . burden delay would be served justice is on the ‘to show that the ends of ” at (Id., 777 P.2d p. the redetermination on that by permitting ground.’ omitted.) fn. relief for similar on behalf more than one Washington “[n]o Wn. cause shown.’’ good will entertained without the same Proc., 731.)28 P.2d 16.4(d); supra, Jeffries, Rules rule Matter App. 3. standard. California *41 the court by criteria to be applied
Petitioner does not address the or untimely in whether the merits of an successive considering unjustified identified we have which does not fit within limited exceptions to He that there should be no bar argues should be considered. instead relief and that petition, consideration of a meritorious habeas possibly corpus within miscarriage justice whenever it that a of appears should be available VI, has of article 13 the California Constitution meaning section of VI, in It occurred.29 Article section 13 has this context. application no error and thereby reversal of a on basis of a harmless precludes judgment to limit the exercise of its jurisdiction appellate serves of court relief but does not create a or excuse powers, right procedural defaults. (Ex parte More it is habeas importantly, inapplicable corpus proceedings. 201].) Bathurst 98 552 P. Cal.App. does, notes,
The court in determining as a similar test apply whether a that he suffered corpus preju- habeas has demonstrated dice (See as a result of a matter of which he In re Martin complains. 44 374].) Cal.3d 744 P.2d That observation is Cal.Rptr. irrelevant, however, since bars consideration of claims procedural preclude sought to be raised a successive or untimely corpus petition just when, ever, bar claims made if they to be decided is appeal. question should court reach the merits of untimely or successive for writ of habeas which corpus has not been justified by petitioner,30 what standard should be to determine if the applied claims afford basis for relief on habeas corpus.
Respondent argues this court should the standards adopt applicable federal habeas review of successive state petitions by prisoners, summary 28For a postconviction prisoners remedies available to in each state see Wilkes, (1992), Federal and State Postconviction chapter appendix Remedies and Relief A. VI, aside, 29Article section 13 provides: granted, “No shall be set or new trial cause, any ground on the jury, rejection misdirection of the or of the admission or improper evidence, any or for any pleading, any any error as to matter of or for error as to matter of unless, cause, evidence, procedure, including after an examination of the entire the court opinion shall be of the complained miscarriage justice.” that the error of has resulted in a argues strongly 30Petitioner that a corpus petitions “statute of limitations” for habeas would unprecedented. be agree, We but We imposed contemplated. no such limitation has been or is do no more apply seeking than the well-established rule that any delay substantial relief petition for explained justified. fairly writ of habeas must be This rule cannot analogized to a statute of limitations. including the limitation on of a petitions attacking penalty phase capital U.S._[120 in Sawyer trial announced Whitley,supra, L.Ed.2d 2514], 112 S.Ct. No reason the benefit of is beyond uniformity analysis for which proffered adopting imposed state the limitations are purposes by statute on federal courts.
We believe the and federal succes- Pennsylvania approaches unjustified relief, sive to a fundamental miscar- applications postconviction looking riage justice, have much to commend them. to ensure that They attempt regardless of default relief will be available to a delay procedural always petitioner who innocent of the offense for which he was convicted. However, rule, date, the federal if error of constitutional applies magnitude contributed to his conviction. The has not allowed high yet court Moreover, consideration of discovered evidence of newly innocence. *42 standard which the Pennsylvania by to relief is right measured—proceedings so unfair that “no civilized can tolerate” the society resulting miscarriage justice—does not articulate a rule and is of consistent capable application, not to in readily adaptable penalty verdicts cases.31 capital
A refusal to consider a claim of factual innocence based on newly discovered evidence A would be in a case. constitutionally suspect capital majority justices of the United States Court have Supreme expressed a belief that the Eighth Fourteenth Amendments execution of preclude an innocent Their statements that in a case a claim of person. imply capital actual innocence of the crime of which the stands convicted must petitioner be considered of when it is if regardless raised or constitutional error U.S._[122 (Herrera affected the verdict. v. Collins L.Ed.2d O’Connor, 853], White, J.], 113 S.Ct. J. opns. [joined by Kennedy, J., Blackmun, Souter, [joined JJ.].) J. Stevens and are by We persuaded 31Justice Kennard recognizes that the state has a compelling require need for rules that timely presentation challenges to the judgments capital petitioners, cases where unlike death, prisoners who are not under sentence of strong delay. have a incentive for Pennsylvania standard adopt encourages which she would our to delay which rule seeks hypotheticals deter. None of the posits actually potential injustice she reflects the she fears may petitioner good occur to a who in delay presentation faith believes that of a claim is justified or who simply “negligent” failing to discover a claim. committed It is that a alleged prior uncharged inconceivable defendant to have crimes does crimes, not know at might the time of trial that he did not “negligently” commit those that he allegation, fail to discover available evidence disprove might good or that he have a faith belief that delay presenting he could promptly such crucial evidence in a habeas petition. it Similarly, apparent would be at the time mitigating of trial that no evidence has presented. been competent appellate No counsel would fail to include such a claim in a habeas corpus petition conjunction filed in appeal. adopt with the automatic Were we to subjective Pennsylvania mythical petitioner “negligently” standard to accommodate the who claims, present failed to those or a bribery jurors, claim based on of one or a timely more create, reduce, petition, we would delay. incentive to or regardless delay those views that such claims should be considered of whether irrespective
failure to include the claim prior petition to the verdict. constitutional error contributed are, limited, relief granting Since this court is not as the federal courts error, on the basis of we also entertain claims constitutional evidence that warrants relief from mitigating jury was not presented Therefore, dem- the death if the can imposing penalty. onstrate that the evidence would have so altered radically profile that no reasonable would have sentenced the judge jury peti- death, tioner to this claim too will be considered notwithstanding peti- tioner’s failure to in a justify delay petition. successive presentation
IV. Conclusion inflexible, we here Although conclude that it should not be that, general rule is still absent for the failure to all justification present known claims in a writ of habeas succes single, timely petition corpus, sive and/or will be denied. The untimely petitions summarily only exception which, to this rule are which if allege facts would establish proven, that a as a miscarriage justice occurred result of proceed fundamental ings leading conviction and/or sentence.
The magnitude and of the death the gravity penalty of us that persuades important values which justify limits on and successive untimely Thus, are outweighed the need to leave open this avenue of relief. for the purposes of exception to the bar un- procedural against successive or timely a petitions, “fundamental miscarriage justice” of will have occurred in any proceeding which it can be demonstrated: that error of constitutional led magnitude to a trial that was so unfair that fundamentally absent the error no reasonable would have the judge jury convicted petitioner;32 (2) that the is the crime petitioner innocent of or crimes actually anticipate 32We cannot might notwithstanding what claims of this nature be made the exacting however, nature of the appeal process in a capital Conceivably, petitioner case. a who had any not raised guilt issues relative to the phase appeal, might in his automatic claim delayed for the first time in a petition or successive erroneously that the trial court excluded crucial defense evidence with the right result that the defendant was denied his constitutional present a prima defense. To state a ground petitioner facie case for relief on this the would persuade the court that had the excluded presented, evidence been he would have been acquitted or convicted of a lesser offense. required As is newly when discovered evidence is corpus petition, the basis for a habeas evidence must be such that it would “undermine prosecution point the entire case and unerringly Gonzalez, to innocence or reduced culpability.” (People v. supra, 51 Cal.3d 1246.) convicted;33 (3) death was which penalty was petitioner misleading which had such a sentencing authority grossly imposed by the trial error or omission no of tiie before it that absent profile petitioner death;34 (4) that would have a sentence of judge jury imposed reasonable These or sentenced under an invalid statute. was convicted petitioner the first their even though presented claims will be considered on merits in which the has not been delay time in a successive or one petition justified.35 even one should not assume that an eleventh-hour petition,
Petitioners innocence, exe- staying actual will lead to an order claiming automatically until the will action on the cution of or that the court delay delay has an Deliberate respondent response.36 submitted informal of the writ which stay may, a last-minute is abuse purpose obtaining discovered, newly 33A irrefutable evidence inno category might in this offer Although cence degree petitioner of the offense or of offense of which the was convicted. earlier, delay making evidence could the claim would and should have been discovered court petitioner not be a bar to if the satisfied the consideration the merits of prosecution point that the evidence case and was such that it would “undermine entire Gonzalez, Cal.3d unerringly culpability.” (People supra, to innocence or reduced trial, 1246.) does no more than already disputed Evidence relevant to an issue at which “ evidence, fundamentally conflict evidence’ that under with trial does not constitute ‘new ” (Id., judgment.’ 1247.) mines the at p. evidence of Again, petitioner heavy satisfying would bear a burden of the court that the been, be, that a presently requirement innocence could not have cannot refuted. The requires showing demonstrate his or her innocence more than a that the evidence might must guilt petitioner. have raised reasonable doubt as to the innocence, jury a reasonable establish actual a standard that cannot be met with evidence that rejected. could have petitioner’s culpability appropriateness 34Accurate evidence relevant to a and the meaning penalty paint “grossly misleading” picture death does not of a defendant within the regardless erroneously False or exception this of whether the evidence was admitted. perjured so. evidence do However, “grossly misleading profile” simply jury to alert the one which fails *44 potentially mitigating by some the evidence at picture painted evidence. The of the defendant trial must court satisfied that greatly differ so from his or her actual characteristics that the is judge jury imposed penalty no reasonable or would have the death had it been aware of personality defendant’s true and characteristics. demonstrate, past 35Asour in that practice practice decisions California differs from federal petitioner filing petition for of state bears the initial corpus writ of habeas in court this a successive alleging explain justify delay burden of the facts on which he relies to and/or filed petition. judicial prior petitions The court will take notice of its own records and of the Code, by (Evid. 452.) of petitioner. appeal on behalf of Because the record of the § court, any prior petition readily is available to this unlike the federal court we need not solicit or await writ as an opposition respondent delay in which the asserts or abuse of the summarily denying affirmative defense before one in which unrea petition a successive delay sonable is reflected on the face of petition. requirement challenging 36Not is there no that a for writ of habeas (see 1478), validity prior filing of a of conviction be served but the §§ burden on respondents reply delayed to the several thousand and successive filed and/or faith good raise inevitably, regarding petitioner’s questions veracity.
V. Disposition newly that his facts to establish specific Petitioner has not stated as Poli delay required made claims were without substantial presented cies, None of rejected standard 1-1.2. Other claims have been previously. justice miscarriage claims is shown to have resulted a fundamental we have defined it to the invoking exception procedural for purposes Therefore, will consider the bar to the the court applicable petition. any merits of of the claims.
The order to show cause and the for writ of habeas discharged corpus denied.
Panelli, J., Arabian, J., J., and George, concurred. LUCAS, J.,C. with the Concurring. I generallyagree reasoning conclusions write a few majority but opinion, separately emphasize points.
1. The Supreme Court Regarding Arising Policies Cases From Judgments Death
As the majority court opinion recognizes, this promulgated Supreme Death, Court Policies Cases Regarding Arising Judgments From policy (hereafter Policies), Supreme Court to facilitate and standardize filing petitions for writs of habeas cases. These Court capital Supreme Policies, alia, amended, established, announced in 1989 and since inter timeliness requirements related to death corpus petitions penalty cases.
As originally standard 1-1 adopted, stated: counsel “Appellate capital cases shall have a factual and duty investigate legal grounds filing Policies, for a writ of habeas supra, . . .” Court corpus. (Supreme 1-1.) former policy std. clarifies the intended Today’s opinion scope court, year (See each in this appeal, the courts of and the superior courts would be intolerable. *45 Palma v. U.S. Industrial Fasteners 36 Cal.3d Cal.Rptr. 179-180 [203 893].) P.2d 3,287 During year fiscal of habeas in 1990-1991 writs criminal courts; 3,014 matters superior were filed in the original proceedings in criminal matters were 1,022 filed in the courts appeal; original corpus petitions were filed in this Cal., (II court. Jud. Council of Rep., 1990-1991.) Ann. Jud. Statistics for Fiscal Year if aware of clear it arises counsel has become duty, making that an to initiate attorney information” that would lead a reasonable “triggering confusion, simultaneously we have also order to avoid investigation. 1-1 to reflect that clarification. modified standard A in the kind of information illustrating hypothetical may prove helpful when, review of For trigger duty investigate. example, that would record, presented counsel becomes “aware” that trial counsel the appellate indicates a factual in this constitutes information that mitigation, no evidence counsel, duty and which triggers basis for a claim of ineffective trial follows, trial (and, it facts whether coun- concerning discover investigate counsel ineffective in that The standard does not allow regard). sel was trial confirming facts that stand until he or she to discover happens or until counsel penalty phase investigation, happens counsel conducted no at have been might presented to discover actual evidence mitigating trial; instead, informa- “triggering the standard that counsel act on requires tion.” a claim delay raising
As standard 1-1.2 measured originally adopted, indicating or counsel “became aware from the time of information aware, basis the claim and became have become or should factual Policies, aware, supra, legal basis for the claim.” Court (Supreme 1-1.2, added.) The was designed former std. italics italicized policy phrase aware of to make clear that is measured from the time counsel became delay information, i.e., facts,” ‘triggering investigation that would support delay eventual of a claim. which measures development Today’s opinion, have of a claim from the time or counsel “should presentation claim, clarifies the again merely prior known” of the facts supporting (One who aware information” that would support formulation. “became and eventual of a claim “should have known” investigation development claim.) confu- any the facts order to avoid supporting Accordingly, sion, we further clarified standard 1-1.2 by adopting explicitly in today’s “should have known” formulation employed opinion.
2. Fundamental Miscarriage Justice
I agree unjustifiedly delayed corpus peti- that for or successive habeas tions, only justice those a fundamental petitions alleging miscarriage have, however, should I majority be heard. some reservations regarding articulation of the of the fundamental opinion’s meaning application miscarriage justice exception. maintaining states that the individual’s interest majority opinion criminal outweighs
avenue of relief the state’s interest of its finality *46 “(1) in the judgments magnitude cases: that error of constitutional following led to a trial that was unfair that no fundamentally so absent error (2) reasonable or would have convicted the that the judge jury petitioner; innocent of the crime or crimes of which he was petitioner actually convicted; (3) that the authority death was a penalty imposed by sentencing which had such a grossly misleading before it that profile petitioner absent the error or omission no reasonable or would have judge jury imposed death; a sentence of that the was convicted under an invalid ante, 759; id., (Maj. 797-798.) statute.” at opn., p. see also at pp. threshold, At the I note that the majority opinion appears permit habeas corpus petitioner gain review an by otherwise defaulted petition which, if simply “alleg[ing] facts proven, would establish that a fundamental ante, miscarriage justice 797.) occurred. . . .” at I (Maj. opn., would p. instead place burden greater on such a habeas and require person filing a delayed successive no petition—with justification—to state at the beginning petition why a court should consider the petition all, i.e., at under which of the four In exceptions falls. this way, such evaluated, petitions can be more quickly lessening the burden on the judiciary reviewing that are defaulted. procedurally I also with agree the majority that a opinion petitioner who can show a error, fundamental constitutional defined narrowly majority opin- ion, should be entitled to present claim an otherwise defaulted am, however, I petition. concerned that merely requiring demonstration prima of a case of such error fails to give sufficient to the weight facie state’s strong are, interest the finality of its criminal judgments. We by definition, concerned here with litigants who had a chance to a claim present trial, at on appeal, (usually) a first habeas corpus petition. such circumstances, I Thus, would apply higher standard of I proof. would elevate the standard of cognizability for successive or delayed petitions require petitioner to allege facts demonstrating a fundamental constitu- tional error clear and convincing (Cf. Sawyer evidence. v. Whitley __, 269, 285, U.S. L.Ed.2d 2514].) S.Ct. on a By insisting higher degree of we certainty, both give proper weight to state’s interest in finality, and more easily eliminate the frivolous petitions while still retaining avenue of relief for those who have legitimate legal claims. I otherwise agree with the reasoning conclusions of the majority, including decision to discharge order to show cause and deny petition for a writ of habeas corpus.
802 I concurin the MOSK, J., judgment. and Concurring Dissenting. attacks collaterally this court writ of habeas before The Holmes, Writ “cuts the Great In the words of Justice of death. in It comes and to the tissue of structure. goes very all forms through outside, have been preserved . . and form although every . from (Frank more than an shell.” they empty whether have been opens inquiry 969, 987-988, S.Ct. L.Ed. 35 (1915) 582] 237 U.S. 346 Mangum Holmes, reviewed carefully I have (dis. J.).) With that understanding, opn. Imerit. would I that it lacks scrutiny, After such have concluded petition. relief on that basis. accordingly deny
In all I other dissent. respects, Great Writ and
The all that the heart out of the majority they do can to tear course, are they to in technicalities. Of its knot of lifeless put place judges. condemned failure. than individual greater to For writ is first, seems At into California habeas majority’s procedure excursus on this confusing and many pages do write so confused strange. Why they and simple in a short when could on the merits topic they deny opinion? reflection, manifest. becomes majority’s purposes
On at least one of the federal constitutional reviewing from seek to federal courts They prevent claims, endeavor turns on the cases. Success this capital especially (See, Harris v. e.g., state bar. any procedural and adequacy independence 308, 315-316, S.Ct. L.Ed.2d Reed 489 U.S. 260-262 [103 1038].) appli- and consistent adequacy presupposes regular For its part, 401, 410, fn. (See, U.S. Dugger cation the bar. v. Adams e.g., 435, 445, 1211].) consistency, Regularity L.Ed.2d 109 S.Ct. however, all but majority expressly were not evident As the past. concede, were discretionary: they were before “rules” today procedural in the of justice with a view the interests furthering invoked or not toward them- likely present individual case. are not Regularity consistency indeterminate at “rules” are majority’s procedural selves the future. such, arbitrary capri- lend only their core. As themselves very they cious operation. that, I understood to tolerate abuse said all do not wish to be
Having court, I allow have refused to Great Writ. almost 30 on this During years way I sure I it But know of one such conduct. will not now. permit each on its own examine defeating justice: discover abuse without True, judicial of considerable facts. of this scrutiny requires expense sort however, resources, That, justice. cases. cost particularly capital *48 oath, I I and Out to we must the have shall. fidelity judicial price. our pay above, I the would the for writ habeas deny For reasons stated would do the merits. corpus, and so on
KENNARD, J., and alters The majority Concurring Dissenting. opinion First, in our habeas in existing significant respects. two corpus procedures the that all III.B. of a rule part opinion, majority general the establishes in when a habeas claims must be raised a and that corpus single petition, claims, files successive all later party asserting petitions different Second, the the justify must failure to the first petition. assert claims III.C., the that when that would part holds a raises claims majority have warranted relief been in an but they had asserted initial timely petition, which were or were omitted an earlier untimely justification without from petition, this court will relief in extremely limited circumstances. grant
I with the agree first societal interests majority’s holding. Strong require imposition reasonable limits on successive for habeas petitions1 however, I corpus. disagree, with the of which holding, second the impact will fall with particular force on death inmates. When row a habeas petition under by prisoner sentence of death have been raises claims should earlier, standard, raised rigid which the majority’s under must show that “no reasonable judge jury” would convicted the petitioner verdict, or returned a death will make virtually it this court impossible for ever I grant relief. adopt would instead the test used Pennsylvania test, courts. Under that will court consider a habeas claim on its merits, earlier, even though the if claim should have been asserted petitioner shows either factual innocence or unfairness of such procedural view, gravity “no civilized society” can tolerate it. my Pennsyl- test, standard, vania unlike the majority’s narrow unreasonably properly accommodates competing interests. It death gives penalty prisoners needed incentive to their assert all orderly habeas claims prompt fashion, yet permits the writ of habeas serve its function corpus to traditional as a flexible procedural remedy of prevent last resort to severe and manifest injustice. 1Although for throughout convenience I refer opinion untimely this successive and relief, “petitions,” recognize I corpus petition may that a habeas contain several claims not, some of are untimely which petitioner may some that in a successive be able to his justify or her raise previous petition, failure to some claims in the be unable but justify failure to raise others. court must in such examine individual claims whole,
petitions, as a they diligently determine whether are raised.
I Writ, a place The writ of known as the Great corpus, occupies habeas also safeguard judicial It is the last our our law. particular importance aof who have been convicted society for those members of system provides trial appear crime a fair trial. When matters that do not without material failure to unjustified present record—such defense counsel’s use of the prosecution’s evidence of innocence or lesser culpability, trial, the outcome of the affected testimony—have perjured inmate obtain *49 by unjustly may the sole method which an imprisoned offers relief. is a Because the writ
But the is not without cost. writ of habeas corpus conviction,2 it undermine may a final collateral attack on repeated in finality proceedings, by permitting societal interest of criminal that were fundamen- review and of convictions trials reanalysis following abused, resources If writ can waste corpus precious fair. of habeas tally Thus, our criminal courts. and cause for the public disrespect judgments corpus which habeas govern when rules to manner devising procedural filed, conflicting goals: this must to reconcile two try be court petitions unjustly imprisoned redress judicial to maximize to to power grant persons death, interest simultaneously while society’s or sentenced to protecting finality judicial its decisions. under which habeas One such rule the circumstances procedural concerns denial of the first one. are to file a second after petitioners permitted gener- court held that the should consistently judiciary This has California re (In the same issue. ally petitions raising not entertain successive habeas 1, 263, 374]; 27, re (1987) In Martin 44 Cal.3d 3 744 P.2d fn. Cal.Rptr. [241 552, 639, 654, 14 P.2d (1975) Cal.3d fn. 18 537 Rodriguez Cal.Rptr. [122 439, 217, 410, 384]; 503 Lynch (1972) In re 8 Cal.3d fn. 26 Cal.Rptr. [105 31, 911, 921]; 921, 1 484 Terry (1971) P.2d In re 4 fn. Cal.Rptr. Cal.3d [95 1375]; 734, 10].) Until (1941) P.2d re Miller Cal.2d P.2d 17 735 [112 however, barring this court a similar rule today, firmly has not established appeal. 2This case raised direct solely corpus, involves claims raised on habeas not those on or her prisoner legality Habeas a collateral on the of his permits to raise attack generally may that are raised not be raised appeal confinement. Because issues or could be 1001]; corpus (In (1965) Cal.Rptr. P.2d on habeas re Waltreus 62 Cal.2d 225 used 513]), In re Dixon Cal.2d P.2d is most often when, challenge shown in legality because the of the commitment involves matters not record, remedy appellate petitioner’s appellate inadequate. is As the there raising majority explains, successive issues.3 petitions different are valid and substantial reasons such a rule. Successive habeas supporting resources; for are drain on limited it less cumbersome judicial time to address them piecemeal courts consider all claims at one than Also, scarce prosecutorial agencies required expend fashion. should be final defend a valid taxpayer judgment. dollars repeatedly presumptively society has a interest important, strong finality judgments Most “A rendered its As legal courts. one scholar it: put procedural system which an endless facts and law a vain into permits repetition inquiry for ultimate the possibil- search certitude lack confidence about implies ities of that cannot but war with effectiveness justice underlying substantive commands . . There comes a [punishing criminal . point acts]. where a which procedural system longer leaves matters no perpetually open reflects humane concern but desire merely anxiety immobility.” (Bator, Finality in Criminal Law and Federal Habeas Corpus State 452-453.) Prisoners 76 Harv. L.Rev. that,
By a rule adopting whenever all habeas possible, claims must *50 in raised a single this court does not burden those petition, unfairly seeking knows, know, If relief. a petitioner or should of several for possible grounds relief, the petitioner should these bring grounds to the attention court at same If the time. a a does file new petitioner petition raising successive issues, it is reasonable to the require to the failure raise to explain those in a issues previous petition.
But if the habeas can the failure to raise in the justify previous the petition issues in the presented successive the court petition, should instance, address the merits of those For issues. an incarcerated inmate who is unrepresented by counsel and unaware of his or her legal rights learn may of a meritorious ground for relief only after the unsuccessfully challenging situation, conviction ground. on another In that the have petitioner will justification shown successive petition, warranting thus court’s consideration of the merits of the petition. Based on my that understanding such consideration will indeed be I permitted, join III.B. part majority opinion.
II turn I to now the difficult question when this court should a entertain that, meritorious, for writ of habeas corpus although is either points majority language 3The in several early cases this century suggesting in ante, however, existence of a (Maj. such opn., pp. 767-768.) limitation. years, For almost 50 published any no decision of California court acknowledged has of this existence limitation. difficult is especially successive. This unjustifiably question or untimely case, to death. On the one has been sentenced when the as this petitioner, hand, death unless it has a put person not be permitted the state should below, hand, I explain a fair trial. On other first given person need for rules a compelling cases the state has capital particularly timely to challenge the condemned require prisoner manner. means collaterally by criminal convictions challenge
Most defendants who who are their serving writ are prisoners of a of habeas them a gives strong release early institution. penal hope sentence they usually of a habeas filing petition, incentive to expedite inmates death But for nothing gain by delaying process. little relief, unlike other They, the situation is otherwise. seeking row Although of death. to “serve” their sentence yet begun have not prisoners, may produce defendant capital successful habeas an incarcerated retrial, reduction of in the from prison, immediate benefits form of release sentence, issues removes generally a court’s final of all habeas rejection of execu- stays Because courts judicial may grant last barrier to execution. facing tion of habeas during pendency corpus proceedings, prisoners their lives that such by ensuring death sentence seek to prolong Thus, death inmates have an are never concluded. row proceedings finally that is not shared by incentive to assertion of habeas claims delay other prisoners. in- with an
To those encourage prospective petitioners, particularly a single centive for to raise all their habeas claims delay, promptly *51 that make relief less available readily courts must devise standards petition, fashioning a is or successive.4 But untimely unjustifiably when petition standard which to these disfavored courts judge petitions, appropriate relief in judicial must be careful to to cases preserve authority grant relief illegality gross injustice. grounds To egregious deny procedural innocence, to one who can demonstrate or whose or persuasively guilt unfair, determined in was a manner that was would punishment grossly The need to betray traditional and held convictions of our deeply society. relief in cases is preserve judicial authority grant deserving to these rare but California, Ias shall particularly great explain. discussing today My 4Until we have not had such a standard. research has disclosed no case untimely petition the circumstances in which a court will consider an for writ of habeas barring successive policy petitions on its merits. Our decisions have noted that our however, same raising should “discretionary,” explaining, the issue is without when courts 911, 921, (In Terry re (1971) exercise their Cal.Rptr. discretion. 4 Cal.3d fn. 1 [95 In re Bevill 1375]; 679].) (1968) P.2d fn. 442 P.2d Cal.Rptr. Cal.2d 9 [69 804-805, ante, previously pages today firmly As I noted at until there has been no established barring
rule in this state successive petitions that raise issues. different California, untimely a be found to be may habeas particular the For judicial process. even the has no desire to misuse though petitioner instance, counsel, faith good the the believe petitioner’s may or petitioner, claim; the the the there are legitimate grounds delay presenting that court, however, find those grounds Alternatively, unpersuasive. not, he but raise a claim of which or was should petitioner may she been, aware earlier a may deny at an time. California courts such with the untimely fully intent to notwithstanding petitioner’s comply I Under the mentioned will also policies. majority just rules opinion, filed justification. successive without apply petitions Today, majority untimely a rule that an or a successive adopts petition, that unjustified, is will be considered if shows that the it has been petitioner subjected miscarriage a “fundamental of justice.” ante, 797.) The (Maj. opn., p. what it means term: majority explains by this “(1) can obtain relief that of constitutional petitioner by showing error magnitude led to trial that was so unfair error that absent the fundamentally (2) no reasonable or judge jury would have convicted petitioner; ; actually (3) is . death innocent. . that the was penalty imposed aby sentencing which had authority grossly misleading profile such it petitioner before absent trial error or judge omission no reasonable death; would have jury imposed (4) sentence of that the petitioner ante, was convicted or sentenced under an invalid statute.” (Maj. opn., pp. 759, 797-798, omitted.) fns.
I disagree with the majority’s definition of miscarriage “fundamental justice.” defects in the are definition majority’s particularly glaring when the majority’s “fundamental miscarriage justice” test is applied asserting irregularities at the of a case. penalty phase capital When the habeas petitioner is challenging (1) and penalty phase, parts (2) of majority’s test are inapplicable, they because relate to evidence of guilt, not Part penalty. can similarly inapplicable, unless the petitioner Therefore, show that California’s death law is invalid. penalty prevail would have to satisfy part test: that majority’s “absent *52 the trial error ... no reasonable have judge jury or would a imposed sentence of death.” For a habeas petitioner who has not diligently sought relief, this requirement a poses nearly hurdle. In insurmountable almost case in every which a defendant an has committed act murder capital of rendering him her or eligible for the death a penalty, or could judge jury reasonably Thus, conclude that the murder warrants the death it will penalty. be virtually a impossible who filed an unjus- has or untimely tifiably successive habeas to the satisfy majority’s prerequisite obtaining relief. when majority’s
Three illustrate the undue harshness of the test examples each, In the the of a trial. challenges penalty phase capital to to applied claim, in has not been the but has been diligent presenting instance, In a fundamental each subjected miscarriage justice. to of rule would bar relief. majority apparently trial, evidence
1. At the of a penalty phase capital prosecution’s defendant committed multiple consists of that the aggravation proof acts of a habeas defendant shows uncharged kidnap rape. that and was convicted of those conclusively person another committed crimes, and that the was thus with what the describes jury presented majority Yet jury as a of the defendant. a reasonable “grossly misleading profile” could, alone, have based on circumstances of the offense capital imposed either life a of death. parole a sentence of without sentence possibility counsel,
2. At the the defendant’s trial without penalty phase, justifica- tion, fails to evidence. Had counsel such evi- present mitigating presented dence, it is more than not would have a probable jury imposed sentence of life without but a reasonable could jury possibility parole, (See, (9th Whitley have Cir. imposed e.g., sentence of death. Deutscher v. 1993) 605.) 991 F.2d jurors
3. Several trial to the defendant the capital accept give bribes death sentence. The evidence the trial is presented at the penalty phase such that a life jury reasonable could have either a sentence of imposed without or a sentence possibility parole of death.
Apparently, none of these three instances warrant relief under the would I, however, majority’s newly test. am of the view that each of these adopted illustrations demonstrates a mag- “fundamental of a miscarriage justice” nitude that warrants relief even the issue was raised in an though untimely When, successive unjustifiably for writ of habeas corpus. I have examples given, defendant has been sentenced to death as a unfair, result of a trial that was relief egregiously deny because simply defendant’s challenge to trial has not been would diligent be offensive traditional notions I justice. cannot accept majority’s conclusion the need to enforce our rules procedural great is so that we must relief deny even if the claim is as I compelling as the three examples given.
To enforce our procedural rules without sacrificing remedy power injustice, manifest this court should it adopt standard that would permit described, grant relief I situations have while time creating at the same *53 a strong incentive for a diligent to raise all claims a manner.
809 Under the Pennsylvania. Pennsylvania Such a standard has been adopted decisions, miscar cites its “fundamental majority support which of ante, 792-793, 796), a successive habeas justice” of test riage (maj. opn., pp. (a) will be entertained “if the can demonstrate either: in his unfair that a miscar resulting that the conviction were so proceedings (b) he can tolerate or that justice society occurred which no civilized riage (Com. v. Laskaris (1991) is of the criminal 407 charges.” innocent [or she] 1229, 1231]; Ryan (1990) Com. v. A.2d Pa.Super. Pa.Super. 373 394 [595 949, 950]; Com. v. (1988) A.2d Lawson 373 A.2d Pa. 504 519 [549 [575 107, 112].)
The it majority unsatisfactory deems test because is “not Pennsylvania ... rule capable application, consistent not readily adaptable ante, 796, omitted.) verdicts in penalty capital cases.”5 fn. But (Maj. opn., p. no like majority showing Pennsylvania, offers that which California has (42 9711), death law penalty Pa. Cons. Stat. Ann. has found its standard § rule, readily “not adaptable” capital majority’s rigid cases. Unlike the determine, Pennsylvania test enables the court to when faced appropriately with wide variety issues that arise on habeas whether the may corpus, trial was so unfair that the court excuse lack grossly should the defendant’s diligence. Better to tolerate a certain than degree to bind ambiguity ourselves a rigid framework that will when it preclude relief is clearly warranted.6
Ill Today, majority new places limits on the writ of habeas limits corpus, that will particularly affect death row I prisoners. agree with the majority majority 5The also Pennsylvania contends that the “encourage" delay. (Maj. standard would ante, opn., 31.) p. fn. puzzling, This assertion is view of the conclusion of the Pennsylvania courts standard opposite Pennsylvania has the effect. standard asbe effective a discouraging method of delay as the the majority harsher test but adopts, it strikes a fair balance gross between need to redress injustice with the sometimes conflicting encourage need to compliance procedural with rules. borrows, form, 6The majority slightly in a modified “no jury its reasonable would voted for test death” from the United Supreme Sawyer States Whitley Court’s decision in v. (1992) U.S._[120 courts, 505 2514], L.Ed.2d 112 S.Ct. But the although they federal apply the Sawyer test to successive justification (id. filed without at p. 467 [120 278-279, pp. 2518]; L.Ed.2d at 112 p. S.Ct. at McCleskey v. Zant U.S. 488-490 517, 541-542, L.Ed.2d 1468]), S.Ct. use different test when a habeas court, is untimely. untimely In federal will nevertheless considered unless the government can show that the unnecessary delay prejudiced has its ability to respond petition. to the (Vasquez Hillery (1986) 474 U.S. L.Ed.2d 598, 610, Liebman, 617]; 106 S.Ct. Federal Habeas Corpus Practice and Procedure 36.4, contrast, p. 555.) In § California may deny untimely courts a petition regardless prejudice prosecution’s Thus, ability respond to it. at respect least with to petitions (as untimely successive), are opposed to the majority adopted has more test restrictive * than that used in the federal courts. *54 petitions limits on successive interests reasonable justify that societal strong limits, execution indefinitely delay without such may, for habeas court should not I also that this judgments. agree valid and final death mis- has shown entertain such unless fundamental that, is, defined under type an unfairness carriage justice—that test, But the majority civilized can tolerate.” society “no Pennsylvania unduly that is miscarriage justice” definition of “fundamental adopts relief deny compelled this court rigid. Consequently, narrow trial, unfair grossly simply defendant to death as a result of to a sentenced the claim to us somewhat brought the defendant to have ought because of death judgments relief from judicial authority grant earlier. To preserve cases, devised and applied I would use the standard deserving the most courts. Pennsylvania writ for a petitioner’s application Because this case miscarriage a fundamental and because has shown untimely, definition or constrictive majority’s unyieldingly either the justice—under denial of the majority’s I in the join the alternative definition favor—I petition. was denied 1993. rehearing September
Petitioner’s application J., Kennard, J., Mosk, should be were of the opinion application granted.
Appendix Death, 3 Regarding Arising Policy Cases of Supreme Judgments Court Policies From and (“Standards Governing Filing Corpus Compensation of Habeas Petitions of Counsel In Petitions”), (“Timeliness Standards”), Pamphlet appearing to Part 1 last No. Relation Such 3-7, is Reports, pages Official Rules amended 2 Advance Sheets of the California 1993 paragraphs as follows are noted in [revised brackets]: Compensation Governing Filing Corpus 3. of and Standards Habeas Petitions of Counsel Relation to Such Petitions following Supreme The Court these as a promulgates implementing standards means of (i) goals respect capital ensuring petitions corpus relating with to for writs of habeas to cases: potentially be to corpus petitions presented that meritorious habeas will and heard this fashion; (ii) timely certainty payment court in a providing appointed counsel some of for legal (iii) investigation expenses; providing authorized work and and this court with a means regulate expenditure public investigate to monitor and of funds to who paid counsel seek to and file corpus petitions. habeas reasons, 6, 1989, arising For these petitions corpus effective June all for writs habeas of death, resolved, judgments of appeals pending previously from whether the or therefrom are governed by are these standards: 1. Timeliness standards 1-1. Appellate capital duty investigate counsel in cases have to [Revised.] shall a factual legal grounds and for the a filing petition of for a of habeas corpus. duty writ to investigate investigating is limited potentially grounds to relief have meritorious for come to preparing counsel’s attention in the of the appeal. impose course It does not on counsel an conduct, obligation for, does expenditure public nor it authorize the funds an unfocused investigation having object as uncovering possible its all for a factual bases collateral attack Instead, judgment. on the a duty potential corpus counsel has investigate claims only if has might counsel become reasonably aware information that lead to actual facts supporting a claim. petitions All writs corpus for of habeas should be filed without substantial delay. 1-1.1 petition A a for writ of habeas be presumed will to be filed without delay substantial if it is filed within date days filing 90 after the final due for the reply appellant’s brief appeal. on direct 1-1.2 petition A days filing filed more than due [Revised.] 90 after final date for the appellant’s reply appeal may brief the direct absence of delay establish substantial if it alleges specificity showing with facts petition was filed within time reasonable after knew, known, (a) or counsel or should have (b) of facts and supporting claim aware, aware, became should legal become basis claim. 1-1.3 Alternatively, petition may delay alleges establish absence of substantial if it with specificity facts showing although petitioner or counsel was aware of the factual and legal 16, bases for the January (the claim before finality date of of In re Stankewitz 396-397, 382, 384, Cal.3d Cal.Rptr. fn. 1 fn. 708 P.2d fn. 1]), the petition was filed within a reasonable time after that date. petition 1-2. If a is filed after delay, substantial must good demonstrate delay. cause for petitioner may A good by showing particular establish cause circum- stances justify sufficient to delay. substantial 1-3. Any comply that fails to requirements with these untimely. denied Compensation
2. standards 2- 1. This court’s appointment of a person counsel for under a sentence of death is for the following: (i) pleadings and proceedings preparation related to and certification of the record; Court; (ii) appellate representation appeal Supreme in the direct before the California (iii) preparation filing ancillary pleadings and other in the and of habeas Court; certiorari, (iv) Supreme preparation filing California and of a for a writ of thereto, Court; (v) Supreme representation an answer in the United States in the trial court 1227; (vi) relating proceedings pursuant preparation Code sections Penal filing clemency with the Governor of California no earlier than after *56 challenges prior court. authori- exhaustion initial round collateral in federal Absent court, motion, by compensate filing any zation this this court will not counsel for the other petition, pleading any or other California or federal court or court of another state. Counsel compensation representation appointment by, who seek for in another court should secure and from, compensation that court. Appellate expeditiously investigate possible filing petition 2-2. counsel should bases for rule, corpus. general investigation concurrently for writ of habeas As a this should be done appellate briefing appeal. Requests by with review of the record and for appointed counsel incur, of, governed authorization to and investigation expenses reimbursement shall be following standards: court, prior may expenses up 2-2.1 Without authorization of the counsel incur to a total of $3,000 corpus investigation, may for habeas and to the claims for reimbursement submit court $3,000 up expenses up to that amount. The court will reimburse counsel for that were reasonably incurred. $3,000 incurring 2-2.2 If after expenses, necessary counsel determines it is to incur court, expenses plans additional for which he or she counsel seek reimbursement from rule, prior general must seek and obtain authorization from the court. As court will not $3,000, reimburse counsel expenses exceeding prior for without authorization of the court. Requests by appointed prior investigation expenses counsel for authorization of shall be governed by following standards: filed, 2-3. appellant’s opening On or before the date the appeal brief on counsel shall file with this court a “Confidential request expenses investigate for authorization to incur potential corpus habeas issues.” request The court will entertain an initial filed at a later time good if delay cause for the is shown. 2-4. request The confidential expenses authorization to incur shall set out: explored; 2-4.1 The issues to be merit; Specific suggest 2-4.2 facts that possible there be an issue of 2-4.3 expenses requested An itemized list of the proposed for each issue of the habeas corpus petition; and from, (a) 2-4.4 listing An itemized expenses previously sought approved by all and/or any any any court of this state and/or federal court in connection with proceeding investigation concerning (b) judgment petitioner; the same and A statement summarizing the status of any proceeding or investigation any any court of this state or federal court concerning judgment (c) the same petitioner; copy any and and A related petition previously filed in any appellate trial or lower court this any state or federal court concerning the judgment petitioner. same and 2-5. generally Counsel not compensation expenses relating will be awarded for fees and clearly to matters that are cognizable corpus. for a writ of habeas 2-6. request Each relating fees to a habeas accompanied by: must be (a) from, An listing itemized of all fees previously sought approved by any and/or court of this state any and/or federal court any in connection with habeas corpus proceeding or investigation concerning judgment the same petitioner; (b) summarizing and A statement any status of proceeding investigation any court of any this state or federal court concerning judgment (c) the same petitioner; copy any A related previously any filed in appellate trial or lower any court of this state or federal court concerning the petitioner. same