Lead Opinion
Opinion
Our recent decisions in In re Robbins (1998)
Background
Because we are concerned only with the procedural aspects of this case, the facts of petitioner’s crime are not relevant. Suffice it to say, petitioner Ronald Lee Sanders and one John Cebreros committed a home invasion robbery of Dale Boender, a drug dealer, and his girlfriend, Janice Allen. Both victims were bound and blindfolded and struck on the head with a blunt object. Boender survived, but Allen died.
Petitioner was convicted in Kern County Superior Court of first degree murder, attempted murder, • robbery, burglary and attempted robbery. The jury also found true two allegations that petitioner was armed with a firearm, as well as four special-circumstance allegations: the murder was committed while petitioner was engaged in the commission or the attempted commission of the robbery and burglary (Pen. Code, § 190.2, former subd. (a)(17)(i)
Still represented by counsel appointed by this court, petitioner filed a petition for a writ of certiorari that was denied by the United States Supreme Court on May 28, 1991. (Sanders v. California (1991)
On June 13, 1996, we ordered the Director of Corrections to show cause “(1) whether, and under what circumstances, ineffective assistance of counsel may explain or excuse delay in presentation of a claim on habeas corpus (see In re Clark (1993)
Discussion
A. Introduction
As explained recently in Robbins, supra,
The manifest need for time limits on collateral attacks on criminal judgments, however, must be tempered with the knowledge that mistakes in the criminal justice system are sometimes made. Despite the substantive and procedural protections afforded those accused of committing crimes, the basic charters governing our society wisely hold open a final possibility for prisoners to prove their convictions were obtained unjustly. (U.S. Const., art. I, § 9, cl. 2 [limiting federal government’s power to suspend writ of habeas corpus]; Cal. Const., art. I, § 11 [limiting state government’s power to suspend writ of habeas corpus].) A writ of “[h]abeas corpus may thus provide an avenue of relief to those unjustly incarcerated when the normal method of relief—i.e., direct appeal—is inadequate” (In re Harris (1993)
A tension is thus created between society’s desire for finality of its criminal judgments and its insistence the person being punished is aсtually guilty of the crimes of which he or she was convicted. One way we attempt to resolve this tension is to require collateral challenges be filed promptly, but to excuse delay on a showing of good cause. In capital cases, the timeliness of a petition for a writ of habeas corpus is evaluated according to a four-pronged test. We recently explained this test in Robbins, supra,
This set of rules may be summarized as follows. In capital cases, a habeas corpus petitioner bears the burden of establishing the timeliness of his or her
Petitioner’s opening brief on appeal was filed October 5, 1984, and his reply brief on appeal was filed March 28, 1985. He filed this, his first state habeas corpus petition, on November 7, 1994. Respondent correctly argues this petition is thus not entitled to a presumption of timeliness because it was not filed “within 90 days after the final due date for the filing of appellant’s reply brief on the direct appeal.” (Supreme Ct. Policies, supra, policy 3, std. 1-1.1.)
The presumption of timeliness being inapplicable, we next decide whether petitioner has satisfied his burden of demonstrating his legal claims in the petition nevertheless were filed without substantial delay. In issuing our order to show cause, we limited the question to “whether, and under what circumstances, ineffective assistance of counsel may explain or excuse delay in presentation of a claim on habeas corpus . . . [and] whether counsel appointed to represent petitioner in his automatic appeal rendered ineffective assistance as to any claim set forth in the instant petition for writ of habeas corpus by failing to investigate and present that claim at an earlier time . . . .” (Italics added.) As this phrasing of the issue suggests, the claims in the petition were presented after a substantial delay.
We turn, then, to the central issue in this case: whether the inaction of рetitioner’s appellate counsel is relevant to the determination of whether the substantial delay in petitioner’s filing the petition for a writ of habeas corpus is excused by good cause.
B. Counsel’s Abandonment Constitutes Good Cause for Delay
At the time of petitioner’s appeal, this court followed a general policy in capital cases of appointing the same attorney to represent the defendant for both the direct appeal and habeas corpus proceedings. (See Supreme Ct. Policies, supra, policy 3, std. l-l.)
At the outset, we emphasize the narrowness of the inquiry before us. We are simply determining whether petitioner, a prisoner under sentence of death seeking a writ of habeаs corpus, has shown good cause for filing his petition after a substantial delay. Petitioner claims he relied on his court-appointed attorney to comply with this court’s timeliness rules and that this legal representative—through no fault of the prisoner—failed to investigate adequately the grounds for potential claims for which there existed triggering facts and, thereafter, to file a petition for a writ of habeas corpus based on reasonably discoverable evidence. If we agree with petitioner that he has shown good cause for the delay, our agreement means only that we will proceed to examine his petition to determine whether he makes an adequate showing for relief on the merits. A determination petitioner has established “good cause” for the delay does not, in other words, of itself entitle him to any substantive relief; the availability of such relief must await a further examination of the specific factual allegations in his habeas corpus petition.
If, on the other hand, we find petitioner fails to show good cause for the delay, we need only read the petition to assure ourselves petitioner’s factual allegations do not make a prima facie showing his case falls within one of the four exceptions to the timeliness requirement set forth in Clark, supra,
Keeping in mind the narrowness of the question before us, we turn to whether prior counsel abandoned petitioner in connection with his habeas corpus proceedings and, if so, whether such abandonment establishes good cause under Supreme Court Policies, policy 3 for filing a habeas corpus petition after a substantial delay.
1. Counsel Abandoned His Client
The original version оf the Supreme Court Policies provided that “[appellate counsel in capital cases shall have a duty to investigate factual and legal grounds for the filing of a petition for a writ of habeas corpus. . . . All petitions for writs of habeas corpus should be filed without substantial delay.” (Supreme Ct. Policies, supra, policy 3, former std. 1-1.) This duty imposed on appellate or habeas corpus counsel has three phases. In the first, or preliminary phase, counsel should review the record, trial counsel’s case files and the appellate briefs, and should discuss the case with trial counsel and the client. In the second, or investigative phase, counsel should seek investigative funds from this court (Supreme Ct. Policies, supra, policy 3, stds. 2-1 to 2-8.3) and promptly and diligently investigate those potential habeas corpus claims concerning which counsel has become aware of triggering facts. In the third, or petition phase, after the diligent investigation of all potential claims is completed, counsel, if appropriate, should prepare and file a habeas corpus petition presenting all potentially meritorious claims.
We recently amended the Supreme Court Policies. Policy 3, standard 1-1 of the Supreme Court Policies, as amended February 4, 1998, provides: “Habeas corpus counsel in a capital case shall have a duty to investigate factual and legal grounds for the filing of a petition for a writ of habeas corpus. The duty to investigate is limited to investigating potentially meritorious grounds for relief that come to counsel’s attention in the course of reviewing appellate counsel’s list of potentially meritorious habeas corpus issues, the transcript notes prepared by appellate counsel,
Should counsel, after a diligent and thorough review of trial counsel’s files, the trial record and the appellate briefs, reasonably conclude there are no triggering facts that would lead one to suspect the existence of issues of potential merit, counsel may legally and ethically cease his or her efforts at that time. (See Guidelines for Fixed Fee Appointments, on Optional Basis, to Automatic Appeals and Related Habeas Corpus Proceedings in the California Supreme Court, guideline 5, fU 2, 4, adopted Dec. 14, 1993 [if, after “all potential leads have been pursued to the extent possible given funding provided therefor,” counsel concludes “that no habeas corpus petition will be filed,” counsel should file a confidential declaration with the court to that effect].) If triggering facts exist, however, counsel must investigate those grounds.
In light of the scope of these duties, we discern two general situations in which we might find abandonment by counsel constituting good cause for the delay in filing a petition. First, abandonment would occur if, as we have seen in some cases, counsel did absolutely nothing to commence a habeas corpus investigation, or otherwise failed even to acknowledge his or her habeas corpus responsibilities. We have declined to impose the bar of untimeliness in such cases.
Second, abandonment also occurs when counsel ceases representation before he or she should have done so (i.e., before investigation is complete, and/or before counsel has a reasonable basis upon which to conclude that no potentially meritorious habeas corpus issue exists). Under either form of abandonment, counsel’s inaction places a habeas corpus petitioner in the same position as he or she would have been in had he or she been unrepresented. So viewed, abandonment can constitute good cause for delayed presentation of claims, for this court cannot conclude a
We turn to the particular facts of this case. Counsel was appointed to represent petitioner on appeal on January 25, 1983. Counsel filed the appellant’s opening brief on October 5, 1984, and the reply brief on March 28, 1985. The original version of the Supreme Court Policies became effective on June 6, 1989. We filed our opinion in petitioner’s direct appeal more than a year later, on September 27, 1990. (People v. Sanders, supra,
On appeal, appellate counsel argued trial counsel was constitutionally ineffective by permitting petitioner to waive a penalty phase defense. We rejected the claim, explaining that nothing in the record showed trial counsel “failed to investigate available mitigating evidenсe or advise defendant of its significance.” (People v. Sanders, supra,
In October 1989, appellate counsel sought investigative funds from this court to undertake a habeas corpus investigation. We denied without prejudice all but $3,000 of the request. Counsel then used the $3,000 authorization to hire an investigator “to interview petitioner to obtain basic historical information about petitioner and his family, something trial counsel had never done.” Petitioner asserts appellate counsel’s initial investigation uncovered “biographical information establish[ing] that a major investigation was required in order to compile the evidence necessary to support habeas claims regarding petitioner’s waiver of a penalty defense and trial counsel’s failure to investigate possible mitigating evidence.” Counsel himself states in a 1994 declaration that “[the] biographical information [uncovered in the initial investigation using the $3,000] made clear that a full-scale investigation would be required to adequately allege habeas claims regarding petitioner’s waiver of a penalty [phase] defense and trial counsel’s failure to investigate possible mitigating evidence.”
After obtaining this triggering information, counsel should (under the rules then applicable (see ante, p. 708, fn. 6) have returned to this court to seek additional funding. Instead, citing the press of other work and a belief the Supreme Court Policies did not apply to this case, appellate counsel did nothing. Counsel’s 1994 declaration explains that he did not proceed to investigate triggering facts (or seek additional funds to do so) because “[s]uch an investigation simply was beyond my abilities given the extent of my caseload. . . .” (Italics added.) In a supplemental 1996 declaration, counsel further stated that in 1989, he advised the California Appellate Project “that I was unable to investigatе and draft a habeas corpus petition on behalf of Mr. Sanders. I believe that I explained . . . that my workload could not accommodate another capital habeas case, since I already was representing” two other capital inmates. (Italics added.)
As we explained in Clark, supra,
Petitioner is correct that he would not, in 1989, have been able to qualify for a finding of presumptive timeliness under the then newly adopted Supreme Court Policies, for his reply brief was filed much earlier than their effective date. Nevertheless, petitioner could have filed a habeas corpus petition without substantial delay. We thus reject petitioner’s claim his appellate counsel had no duty at least to investigate the potential grounds for a petition for a writ of habeas corpus. As indicated, petitioner’s appellate counsel was on notice, no later than June 6, 1989, the date we adopted the Supreme Court Policies, that he was obligated to investigate the grounds for a possible petition for a writ of habeas corpus, prepare a petition if such grounds were discovered, and file the petition in this court without substantial delay. (Robbins, supra, 18 Cal.4th at pp. 791-792.) Counsel’s failure to do so left petitioner essentially with no legal representation with regard to habeas corpus claims; that circumstance, as indicated, is relevant to determining whether good cause exists to excuse the lateness of the present petition.
Petitioner further contends his appellate attorney did not believe the timeliness rules in the Supreme Court Policies actually applied to this case in 1989. In
Petitioner asserts two additional circumstances relevant to the question of good cause. First, petitioner alleges that, when the Supreme Court Policies became effective in 1989, appointed сounsel “was unable to undertake the investigation for and the preparation of a state habeas corpus petition” due to other appointments in capital cases from this court, as well as being counsel of record in “more than thirty other cases between June 6, 1989, when the [Supreme Court Policies] were announced, and August 2, 1991 when certiorari was denied [in this case].” (Italics added.) In his declaration, counsel states that during the critical time in question (1989), he was counsel of record in four capital case appeals (People v. Rodriguez (1986)
That an appellate attorney has demonstrated a willingness to undertake the difficult task of representing criminal defendants sentenced to suffer the death penalty does not excuse his failure timely to investigate fully the potential grounds for habeas corpus relief in any particular case. (See Rules Prof. Conduct, rule 3-110(A) [“A member shall not intentionally . . . fail to perform legal services with competence.”], and (B) [“competence” defined as applying the “mental, emotional, and physical ability reasonably necessary for the performance of such service”].) If appellate counsel in this case found himself overextended, he should have sought help by associating other counsel to assist him in complying with his legal obligations (see id., rule 3-110(C)(1)) or filed a motion to withdraw as attorney of record. Counsel’s failure to do either supports a finding that he simply abandoned petitioner.
Second, petitioner contends this court’s denial of investigative funds hampered counsel’s ability to conduct a proper investigation. In Gallego, supra,
As in Gallego, in petitioner’s case we granted counsel’s request for investigative funds only in part. (See Gallego, supra,
Nor is this a case lacking potentially meritorious issues. Although we will, by separate order, address the substantive merits of the claims raised in the petition
Triggering facts for many of these and other claims now raised in a petition for a writ of habeas corpus were either known to petitioner or exist in the appellate record. Such claims would certainly appear to have been “potentially meritorious” for purposes of investigation and, if appropriate, for presentation to this court. Irrespective of the ultimate success of the petition in any given case, habeas corpus counsel (or, as here, appellate counsel acting as habeas corpus counsel), as explained, ante, has the duty to conduct a reasonable investigation and to present not just actually meritorious claims (an imponderable before adjudication), but all potentially meritorious claims.
In sum, neither counsel’s belief in the inapplicability of the Supreme Court Policies, nor his pressing caseload, excuses his inaction. Appellate counsel possessed facts indicating that issues of potential merit existed and that additional investigation was required. In response to such triggering facts, counsel did not seek additional funding or conduct a further investigation in order to determine whether potentially meritorious claims existed. Nor did he move to associate additional counsel to assist him with his workload, or withdraw from his appointed obligations. Instead, he did nothing. Counsel, in short, abandoned his client.
Respondent argues petitioner’s appellate attorney was “an experienced, perhaps pre-eminent, authority on capital defense” and that “it is unlikely that such an experienced capital defense attorney . . . simply cavalierly concluded that [the Supreme Court] Policies did not apply to him because the briefs in this case were filed before the policies were published.” Respondent suggests counsel had a tactical reason for failing to investigate in the face of triggering facts. This tactical reason, respondent suggests, eliminates the possibility that counsel’s abandonment was other than a “calculated plan” to delay the case. Petitioner strenuously opposes this notion; he has filed a supplemental declaration by appellate counsel that flatly denies counsel had any tactical reason for failing to file a habeas corpus petition.
2. The Absence of a Federal Constitutional Right to Counsel Is Irrelevant
Respondent contends petitioner’s abandonment by counsel is of no legal consequence, because petitioner does not have a federal constitutional right to appointment of counsel for state collateral proceedings. A criminal defendant, of course, is entitled at trial to representation by competent legal counsel, a right guaranteed by both the federal and state Constitutions. (In re Fields (1990)
If a state provides convicted criminals a first appeal of right, the federal constitutional guarantees of due process (fair procedure) and equal protection (equality among litigants)
Although the law thus requires an attorney to maintain a basic level of professional competence when representing a client in a direct criminal appeal, respondent argues petitioner’s abandonment by his court-appointed attorney during the postverdict habeas corpus investigation period cannot constitute good cause for the delay in the presentation of issues in the present petition. In support, respondent cites decisions of the United States Supreme Court holding a criminal defendant enjoys no federal constitutional right to the assistance of state-appointed counsel in mounting a discretionary challenge to a final criminal judgment. As we explain, this authority is irrelevant.
Respondent is correct in stating the federal Constitution does not guarantee appointment of counsel for discretionary review proceedings, such as state habeas corpus proceedings. (Coleman v. Thompson (1991)
Respondent further argues that if a defendant has no federal constitutional right to the assistance of counsel in state habeas corpus proceedings, the defendant necessarily has no right to the effective assistance of such counsel. This, indeed, is the prevailing federal rule. (Coleman, supra,
Irrespective, however, of whether or not a criminal defendant enjoys the right, under the federal Constitution, to appointed counsel as a matter of due process or equal protection, a state may choose, as a matter of state law, to appoint an attorney to assist a death row prisoner in investigating, preparing and filing a petition for a writ of habeas corpus. If a state thus chooses to appoint an attorney for that purpose, the absence of a federal constitutional right to the appointment does not obligate this court to tolerate abandonment of a capital defendant by that attorney. Consequently, notwithstanding the above-stated rule of federal constitutional law, nothing prohibits this court from considering habeas corpus counsel’s actions (or inaction) when evaluating whether, under policy 3 of the Supreme Court Policies, good cause exists
In California, appointment of counsel to assist capital defendants
This practice is currently memorialized in three places. First, part XV A of the Internal Operating Practices and Procedures of the California Supreme Court (hereafter Internal Operating Practices) states: “In criminal matters, upon a verified or certified statement of indigency, the court, acting through the Clerk’s Office, will appoint an attorney for a party in the following instances: ft[] . . . ftQ 2. In a pending automatic appeal and/or related state habeas corpus . . . proceedings.” (Italics added.) Part XV B of the Internal Operating Practices continues: “At or after the time the court appoints appellate counsel to represent an indigent appellant on direct appeal, the court also shall offer to appoint habeas corpus . . . counsel for each indigent capital appellant.” (Italics added.) Part XV C of the Internal Operating Practices goes on to explain that this court maintains an “Automatic Appeals Monitor” who is responsible for assisting the court in locating available attorneys for appointment, and part XV D sets forth the manner in which such appointed counsel are compensated.
A capital defendant’s right, under state law, to appointment of counsel for state collateral proceedings also finds voice in the Supreme Court Policies. At the time petitioner’s habeas corpus petition should have been filed, standard 1-1 of policy 3 provided in part: “Appellate counsel in capital cases shall have a duty to investigate factual and legal grounds for the filing of a petition for a writ of habeas corpus.” (Supreme Ct. Policies, supra, policy 3, former std. 1-1, adopted June 6, 1989.)
Third, most recently, the Legislature has provided that “[t]he Supreme Court shall offer to appoint counsel to represent all state prisoners subject to a capital sentence for purposes of state postconviction proceedings . . . .” (Gov. Code, § 68662.) Although this statute was not in effect when petitioner’s appointed attorney should have investigated and filed a petition for a writ of habeas corpus, the Legislature’s enactment underscores our conclusion that state law requires appointment of counsel to represent capital defendants in postconviction proceedings.
In sum, although the federal Constitution does not require this state to appoint counsel to represent indigent death row prisoners in state habeas corpus proceedings, (i) In re Anderson, supra, 69 Cal.2d 613, (ii) this court’s own Internal Operating Practices, (iii) policy 3 of the Supreme Court Policies, and now (iv) Government Code section 68662 all require such appointment. The question is a matter of state law, not federal constitutional law, and the absence of a federal right does not prevent this court, under state law, from considering counsel’s abandonment as good cause for the delay.
3. Abandonment by Counsel Constitutes Good Cause for Delay
To reiterate: We appointed counsel to represent petitioner on direct appeal and in habeas corpus proceedings, and this attorney, we have established, abandoned petitioner sometime during the postconviction stage of the proceedings. State law requires counsel be appointed for capital prisoners seeking to pursue state postconviction remedies; the absence of a corollary right under the federal Constitution is no impediment to this court’s consideration of abandonment as good cause for the delay in filing a state habeas corpus petition. We now turn to whether counsel’s abandonment constitutes good cause under state law.
We have previously recognized that prior counsel’s actions (or inactions) may be relevant to the proper application of the procedural rules that affect the availability of relief on habeas corpus. Thus, in Clark, supra, 5 Cal.4th 750, the petitioner filed a successive petition for a writ of habeas corpus, thereby violating, at least facially, the procedural rule prohibiting successive petitions. (Id. at pp. 767-768; In re Horowitz (1949)
As is clear, Clark acknowledged the tension between the federal cases finding no constitutional right to appointed counsel for state habeas corpus proceedings (see, e.g., Coleman, supra,
Consistent with Clark, we find that where, as here, appointed counsel abandons his or her client during the postconviction period, failing to conduct a reasonable investigation and file a petition if the facts so warrant, that circumstance also “may be offered in explanation and justification” for the necessity of filing a state habeas corpus petition after a substantial delay. (Clark, supra, 5 Cal.4th at p. 780.)
The state’s interest in the finality of its criminal judgments, though strong, does not require that we accept this incongruous, and harsh, result. (See Robbins, supra,
Despite this authority, respondent strenuously argues we should not consider counsel’s prior efforts (or lack thereof) when determining good cause, because to do so “would defeat the purpose of establishing procedural requirements. If any procedural default, whether volitional or inadvertent . . . could be excused by alleging ineffectiveness of counsel, then the exceptions would swallow the rule .... Procedural default would be an empty concept, and the procedural rules for filing habeas corpus petitions, along with their underlying purposes of fairness and prompt resolution of legitimate claims, would be meaningless.”
We share respondent’s concern with the integrity of our procedural rules. In the present context, however, respondent overstates the case. To begin with, our conclusion that prior counsel’s abandonment is a relevant factor when determining whether a petitioner has shown good cause under policy 3 of the Supreme Court Policies for a petition filed after a substantial delay does not mean, as respondent contends, that we will condone “any procedural default, whether volitional or inadvertent.” (Italics added.) To the contrary, we reiterate that “[t]his court has never condoned abusive writ practice or repetitious collateral attacks on a final judgment” (Clark, supra,
Nor is it sufficient, as respondent argues, for a habeas corpus petitioner to simply allege prior counsel abandoned him or her. We emphasize the petitioner’s burden is to establish good cause for any substantial delay. (Gallego, supra,
Moreover, to the extent respondent argues that any consideration whatsoever of prior counsel’s actions or omissions will destroy the efficacy of our procedural rules, he is mistaken. This court will examine closely any proffered justification
Although respondent argues for a rule that would have this court deny a belated habeas corpus petition on procedural grounds alone, without reaching the merits, when the delay is attributable to the attorney’s abandonment of his or her client during the postconviction period, we reiterate this harsh result is not justified by the need to ensure the finality of this state’s criminal judgments.
In short, we reject respondent’s contention that the potential for abusive writ practice on the part of capital defendants justifies a conclusion the abandonment by prior counsel should play no part in the evaluation of whether good cause exists to excuse a petition filed after a substantial delay. Instead, we conclude the abandonment by prior counsel is a relevant factor in the determination of whether good cause for delay exists in a particular case. Recognizing the potential deleterious effect on the legal system caused by an appointed counsel’s abandonment of a capital client will not, as respondent claims, render “procedural default ... an empty concept,” nor will it convert the procedural rules applicable to habeas corpus petitions into a meaningless ritual. As explained above, petitioner bears the burden of establishing good cause, and this court will remain vigilant in enforcing our timeliness rules, taking appropriate corrective action when faced with abusive writ practices.
We therefore conclude prior counsel’s abandonment of petitioner constitutes good cause for the filing of a petition for a writ of habeas corpus after a substantial delay. This conclusion is not foreclosed by federal precedent and is fully consistent with our Internal Operating Practices, policy 3 of the Supreme Court Policies, Government Code section 68662 and, by analogy, our own recent precedent (Clark, supra,
Conclusion
In sum, we find: (1) counsel, appointed by this court to represent petitioner for postconviction proceedings, essentially abandoned his client; (2) such abandonment constitutes good cause excusing the substantial delay in filing the petition for a writ of habeas corpus that is attributable to counsel’s abandonment; and (3) none of the claims, therefore, presented in petitioner’s habeas corpus petition should be denied as untimely.
Because we confined our order to show cause to the procedural issues in the case, we do not address in this opinion the substantive merits of the claims raised in the petition for a writ of habeas corpus. Such claims will be resolved by separate order. (See In re Hamilton (1999)
The order to show cause is discharged.
George, C. J., and Chin, J., concurred.
Notes
By so concluding, we need not reach the further, and more difficult, question whether some action or inaction by counsel short of the abandonment that occurred here could also constitute gоod cause under the Supreme Court Policies Regarding Cases Arising From Judgments of Death (hereafter Supreme Court Policies).
For the convenience of the bench and bar, I note that five members of the court (the Chief Justice, Justices Mosk, Kennard, Chin and I) agree that abandonment by counsel can constitute good cause under our Supreme Court Policies excusing a substantial delay in filing a petition for a writ of habeas corpus in a capital case. Four members of the court (the Chief Justice, Justices Mosk, Chin and I) agree that abandonment adequately has been pleaded in this case. In addition, five members of the court (the Chief Justice, Justices Mosk, Chin, Brown and I), for different reasons, agree petitioner’s claims should not be denied as untimely.
A11 further statutory references are to the Penal Code unless otherwise stated.
This result does not change when we consider that, due to the vintage of this case, five supplemental briefs were filed, the last on June 11, 1990. (Respondent filed a fifth supplemental response on July 2, 1990.) Even were we to assess the timeliness of the petition using this latter date, the habeas corpus petition is nevertheless well outside the 90-day period under standard 1-1.1.
This court amended the Supreme Court Policies, effective February 4, 1998, to permit separate appellate and habeas corpus counsel.
This amendment “merely clarifies the previously imposed duty, and accounts for the involvement, under the recent legislation, of separate direct appeal and habeas corpus counsel. The amendment effects no substantive change in the scope of counsel’s duty to conduct a habeas corpus investigation.” (Robbins, supra,
At the relevant time in this matter, counsel was authorized to file a confidential request for habeas corpus investigation expenses. (See Gallego, supra,
These passages from counsel’s declarations demonstrate that counsel in fact believed he had triggering facts to further investigate the claim of ineffective assistance of trial counsel (based upon failure to investigate and properly advise petitioner concerning presentation of a penalty defense), yet counsel did not do so because he was busy with other matters. Justice Kennard’s concurring and dissenting opinion gives insufficient weight to counsel’s own explanation of his failure to act, instead supplying a different motivation for counsel. Significantly, however, in neither of his two declarations did counsel advance the justification supplied for him in Justice Kennard’s concurring and dissenting opinion (post, at pp. 728-729), i.e., that because petitioner did not want a sentence of life imprisonment without possibility of parole, and hence waived a penalty defense, this rendered “any possible inadequacy in trial counsel’s penalty phase investigation . . . irrelevant.” Instead of advancing the concurring and dissenting opinion’s post hoc justification, counsel stated—twice— that he did not pursue the claim, even though he thought it warranted investigation, because doing so did not fit within his caseload.
We caution, however, that just as “[the] process of ‘winnowing out weaker arguments on appeal and focusing on’ those more likely to prevail... is the hallmark of effective appellate advocacy” (Smith v. Murray (1986)
We are aware that delaying the proceedings may be viewed by some attorneys representing defendants condemned to suffer the death penalty as a strategic or tactical decision, for unless the defendant has potentially meritorious legal claims to raise on direct appeal or in a collateral attack, an attorney may believe that delaying final adjudication of legal claims is the only way realistically to serve the client’s interests. In the early days of capital habeas corpus litigation following reinstitution of the death penalty in this state, it was not uncommon for attorneys in capital cases to file state habeas corpus petitions at the last possible moment, after an execution date was set, federal counsel appointed by the federal courts, and a federal habeas corpus petition filed. With the issuance of the Supreme Court Policies in 1989, however, it became clear that such delay is not a permissible tactical course. As a result of the adoption of the Supreme Court Policies and the decision in Clark, supra,
Griffin v. Illinois (1956)
No analogous provision exists for prisoners not subject to the death penalty (Clark, supra,
As amended February 4, 1998, the pertinent standard now states in full: “Appellate counsel in a capital case shall take and maintain detailed, understandable and computerized transcript notes and shall compile and maintain a detailed list of potentially meritorious habeas corpus issues that have come to appellate counsel’s attention. In addition, if appellate counsel’s appointment does not include habeas corpus representation, until separate counsel is appointed for that purpose, appellate counsel shall preserve evidence that comes to the attention of appellate counsel if that evidence appears relevant to a potential habeas corpus investigation. If separate ‘post-conviction’ habeas corpus/executive clemency counsel (hereafter ‘habeas corpus’ counsel) is appointed, appellate counsel shall deliver to habeas corpus counsel copies of the list of potentially meritorious habeas corpus issues, copies of the transcript notes, and any preserved evidence relevant to a potential habeas corpus investigation, and thereafter shall update the issues list and transcript notes as warranted. Appellate counsel shall consult with and work cooperatively with habeas corpus counsel to facilitate timely investigation, and timely preparation and filing (if warranted) of a habeas corpus petition by habeas corpus counsel.
“Habeas corpus counsel in a capital case shall have a duty to investigate factual and legal grounds for the filing of a petition for a writ of habeas corpus. The duty to investigate is limited to investigating potentially meritorious grounds for relief that come to counsel’s attention in the course of reviewing appellate counsel’s list of potentially meritorious habеas corpus issues, the transcript notes prepared by appellate counsel, the appellate record, trial counsel’s existing case files, and the appellate briefs, and in the course of making reasonable efforts to discuss the case with the defendant, trial counsel and appellate counsel. The duty to investigate does not impose on counsel an obligation to conduct, nor does it authorize the expenditure of public funds for, an unfocused investigation having as its object uncovering all possible factual bases for a collateral attack on the judgment. Instead, counsel has a duty to investigate potential habeas corpus claims only if counsel has become aware of information that might reasonably lead to actual facts supporting a potentially meritorious claim. All petitions for writs of habeas corpus should be filed without substantial delay.” (Supreme Ct. Policies, supra, policy 3, std. 1-1, as amended Feb. 4, 1998.)
Normally we would evaluate the justifications for delay in presentation of claims individually, that is, based on when petitioner or counsel knew, or should have know, of the facts underlying each claim. (See generally, Robbins, supra,
Absent, of course, the presence of claims involving one of the four Clark exceptions. (Clark, supra, 5 Cal.4th at pp. 797-798.)
Respondent also contends that these exceptions provide adequate relief to those capital defendants unfortunate enough to have been abandoned by counsel. Although admittedly the four Clark exceptions provide a window for those claims that, for whatever reason, were not properly presented earlier, the exceptions are no substitute for a showing of good cause under our timeliness rules. Under the Supreme Court Policies, the exceptions are relevant only after a determination has been made that good cause does not justify the substantial delay in presentation of claims.
Neither is this result necessary to assure attainment of the “institutional goal[]” of maintaining “the integrity of our appeal and habeas corpus process.” (Robbins, supra,
In light of this finding, petitioner’s “Motion for Leave to Supplement Timeliness' Allegations,” filed in this court on August 24, 1998, is denied as moot.
Concurrence Opinion
I concur in the result.
In this proceeding, the court considers yet again a petition for writ of habeas corpus by a condemned prisoner and the machinery of “procedural bars” against the granting of relief that decisions such as In re Clark (1993)
Beyond noting my concurrence in the result, I write separately to express my agreement that, on the assumption that Clark s machinery of procedural bars against relief on habeas corpus operates both appropriately and efficiently, former counsel’s abandonment of a petitioner without submitting a petition on his behalf may, and here does, constitute “good cause” for any “substantial delay” by successor counsel in eventually submitting just such a petition. Indeed, Clark itself compels this conclusion. It states: “If . . . counsel failed to afford adequate representаtion in a prior habeas corpus application, that failure may be offered in explanation and justification of the need to file another petition.” (In re Clark, supra,
To be sure, the “writ of habeas corpus ‘ “was not created for the purpose of defeating or embarrassing justice, but to promote it[,]” ’ ” especially when the challenged confinement is pursuant to a judgment of death. (In re Robbins (1998)
But the “only path that would guarantee the attainment of justice in such a situation” is “the ‘examin[ation]’ of ‘each’ habeas corpus ‘petition on its own facts’ in order to determine whether the petitioner has alleged specific facts that would entitle him to relief.” (In re Robbins, supra,
True, the “ ‘scrutiny’ of the merits” that examination of this sort entails “ ‘requires the expense of considerable judicial resources . . . .’” (In re Robbins, supra,
But such “[s]crutiny . . . requires much less than does the effort to invoke each and every procedural bar. Or even the effort to invoke any one such bar.” (In re Robbins, supra,
“Because principle and pragmatism show themselves in rare conjunction in this proceeding, as in all others in which” the challenged confinement is pursuant to a judgment of death (In re Robbins, supra,
Concurrence Opinion
Justice Werdegar’s plurality opinion states: “[Wjhen ... an attorney representing a capital defendant essentially abandons his client and fails, in the face of triggering facts, to conduct an investigation in order to determine whether there exist potentially meritorious claims, such abandonment constitutes good cause for substantial delay in the presentation of potentially meritorious claims by subsequent counsel.” (Plur. opn., ante, at p. 701.) I agree.
I disagree, however, with the plurality’s further conclusion that Dennis Riordan, petitioner’s highly competent appellate counsel, abandoned him in this case. Therefore, with the exception of any issues for which petitioner has explained the delay
As the plurality explains (plur. opn., ante, at pp. 707-708), the duty imposed on a habeas corpus counsel in a capital case has three phases. In the first phase, directly after counsel’s appointment, counsel should review the record, trial counsel’s case files, and the appellate briefs, and should discuss the case with trial counsel and the client. (See Supreme Ct. Policies Regarding Cases Arising From Judgmеnts of Death, Policy 3, Standards Governing Filing of Habeas Corpus Petitions and Compensation of Counsel in Relation to Such Petitions (Policy 3), std. 1-1.) In the second or investigative phase, counsel should investigate potential habeas corpus claims as to which counsel is aware of “triggering facts,” that is, facts sufficient to warrant further investigation, but not necessarily sufficient to state a prima facie case for relief. (In re Gallego (1998)
Here, the plurality concludes that appellate counsel abandoned petitioner at the second step of this process: the duty to investigate those potential claims as to which counsel possesses triggering facts. According to the plurality, counsel was aware of triggering facts, yet he failed to seek funds from this court to conduct an investigation. I disagree. In my view, the petition for writ of habeas corpus offers no reason to believe that counsel was aware of triggering facts. As a result, he had no further duty to investigate.
The plurality furnishes a laundry list of 10 claims in the petition for writ of habeas corpus that, it contends, reveal “potentially disturbing aspects of petitioner’s trial . . . .” (Plur. opn., ante, at p. 713.) The plurality asserts that triggering facts for “many” of these claims, which the plurality conveniently neglects to identify, “were either known to petitioner or exist in the appellate record,” and that these claims “would certainly appear to have been ‘potentially meritorious’ for purposes of investigation and, if appropriate, for presentation to this court.” (Ibid., italics added.) But in determining whether appellate counsel abandoned petitioner, petitioner’s knowledge of triggering facts is irrelevant: the only questiоn is whether counsel was aware of such facts but failed to act on them.
As to nine of these ten claims mentioned in the plurality’s list, there is no evidence before this court that counsel was aware of triggering facts, or that such facts appear in the appellate record.
Petitioner contends that trial counsel was ineffective because he failed to conduct an adequate penalty investigation. Appellate counsel’s declaration describes his discovery, after one of his associates had met with trial counsel and examined his files, of the following: “[T]rial counsel had conducted almost no penalty investigation. He had not interviewed any potential witnesses about [petitioner’s] family, his life or his character. Nor had trial counsel obtained records and documents about [petitioner’s] background.”
Ordinarily, these are precisely the type of triggering facts that would necessitate a thorough investigation by habeas corpus counsel. In this case, however, petitioner insisted that his trial counsel should present no evidence at the penalty phase of his capital trial, because petitioner believed a sentence of life in prison without the possibility of parole was “unaсceptable.” The trial court went to great lengths to ensure that petitioner’s decision not to present penalty phase evidence was knowing and intelligent: It appointed independent counsel to consult with petitioner and it appointed a psychiatrist, Dr. F.A. Matychowiak, to determine whether petitioner’s decision not to present evidence at the penalty phase was a rational one. Dr. Matychowiak concluded that petitioner was of above-average intelligence, that he was “free of any specific disease or disorder that would preclude his being able to reason or understand his present circumstances or which would preclude his assisting intelligently in his own defense,” and that his decision not to present evidence at the penalty phase was “a matter of wisdom rather than of sanity.” Thus, any possible inadequacy in trial counsel’s penalty phase investigation was irrelevant (because petitioner made a knowing and intelligent decision not to present penalty phase evidence at trial), and this court would, in my view, have denied a request by appellate counsel for funds to conduct the type of penalty phase investigation that should ordinarily have been performed by trial counsel. Therefore, appellate counsel did not abandon petitioner by failing to seek funds to conduct such an investigation.
The plurality makes much of a declaration in which appellate counsel, while conceding that he failed to investigate potential habeas corpus claims, attributes this failure to the pressures of other work rather than to the absence of information worthy of investigation. I do not agree that counsel’s declaration establishes that he abandoned petitioner.
Counsel’s failure to acknowledge the absence of triggering facts is hardly surprising. To state plainly that he was aware of no information worthy of investigation would put counsel in the position of arguing against the interests of his former client. In attributing his inaction to the press of other business, rather than to a lack of viable issues, counsel is merely demonstrating loyalty to his former client. Although the majority is correct that a heavy caseload cannot excuse an attorney’s failure to discharge his habeas corpus duties, “counsel has a duty to investigate potential habeas corpus claims only if counsel has become aware of information that might reasonably lead to actual facts supporting a potentially meritorious claim.” (Supreme Ct. Policies Regarding Cases Arising From Judgments of Death,
In petitioner’s appeal, counsel raised numerous claims of federal constitutional error. Although this court rejected those claims, they were not without substance; indeed, two justices of this court were of the view that petitioner was entitled to relief on four of these grounds. (See People v. Sanders (1990)
Therefore, I would reject petitioner’s contention that this court should excuse his delay in raising certain claims in his habeas corpus petition on the ground that his appellate counsel abandoned him.
On August 24, 1998, petitioner filed a “Motion for Leave to Supplement Timeliness Allegations,” requesting 60 days to amend his timeliness allegations to bring them into compliance with In re Robbins (1998)
Concurrence Opinion
As Yogi Berra once—or more than once—said, “ ‘You’ve got to be very careful if you don’t know where you are going, because you might not get there.’ ” (Araiza et al., The Jurisprudence of Yogi Berra (1997) 46 Emory L.J. 697, 746, fn. omitted; cf. People v. Mendez (1999)
I continue to adhere to the views expressed in my concurring and dissenting opinion in In re Gallego (1998)
I would discharge the order to show cause and deny all claims solely on the merits without preliminary consideration of whether petitioner has demonstrated “good cause” for any “substantial delay” in presenting the petition. I express no opinion on the majority’s determinations regarding the relevance of appellate counsel’s acts or omissions.
Dissenting Opinion
I respectfully dissent.
Under our written policies in effect between 1989 and 1998, counsel appointed
The plurality now contradict these clear principles. On the one hand, they find that the petition in this case, filed in November 1994, was indeed “presented after a substantial delay.” (Plur. opn., ante, at p. 705.) That determination appears indisputable. The capital crimes occurred in 1981, and the death judgment was rendered in 1982. In January 1983, we appointed Dennis Riordan as petitioner’s counsel on appeal. We decided petitioner’s automatic appeal in 1990, and Riordan thereafter remained counsel of record until he was relieved in June 1994. As the plurality make clear, habeas corpus duties devolved upon Riordan no later than June 1989, when our Policies went into effect. Yet aside from filing a confidential request for investigation funds in October 1989, Riordan did nothing toward the investigation and filing of a petition. The current petition fails to show that the claims now proffered neither were nor should have been known in time to present them at some earlier point during Riordan’s tenure. (See Robbins, supra,
Nonetheless, the plurality hold that under our Policies, Riordan’s “abandonment” of his duties on habeas corpus is itself good cause for the substantial delay. The plurality thus hold that our Policies make the very creation of delay its own excuse. Under the plurality’s analysis, counsel appointed to pursue capital habeas corpus claims in timely fashion can рrevent a finding of untimeliness simply by walking away from the duty of prompt action imposed by the appointment.
Try as they may, the plurality cannot avoid the mischievous conundrum created by this holding. If our Policies allow counsel to create timeliness by ignoring it, the requirement of timeliness itself loses all meaning.
The plurality acknowledge the importance of our timeliness Policies for capital habeas corpus petitions. These policies vindicate the strong societal interest that a valid criminal judgment become final and be carried out. They discourage abuse of the writ. And they serve our own institutional concerns with the management of our docket. The plurality also concede, as they must, that a condemned prisoner has no federal constitutional right to legal assistance, diligent or otherwise, in the investigation and presentation of a first petition for habeas corpus. Nonetheless, the plurality advance several reasons why we must excuse delay caused by counsel’s “abandonment,” and must consider on the merits all claims raised in a petition thus delayed. None of these reasons are persuasive.
First, the plurality reason that insofar as California has elected to afford appointed
The ominous premise of each of these theories is one sрecifically rejected for federal constitutional purposes, i.e., that a capital prisoner has the right to the effective assistance of counsel on habeas corpus. (Coleman v. Thompson (1991)
Even if there were a kernel of abstract logic in this view, its application in derogation of our timeliness standards is misguided in the extreme. This is because, in the upside-down world of death penalty law, counsel more often helps than hurts his client by avoiding the prompt pursuit of postconviction remedies. Circumstances usually dictate that counsel’s best course in his condemned client’s interest is to do nothing until action becomes absolutely necessary.
As Justice Kennard has pointed out, “[m]ost defendants who challenge criminal convictions collaterally by means of a petition for writ of habeas corpus are prisoners who are serving their sentence in a penal institution. The hope of early release gives them a strong incentive to expedite the filing of a habeas petition, and they usually have little or nothing to gain by delaying the process. But for inmates on death row seeking habeas relief, the situation is otherwise. They, unlike other prisoners, have not yet begun to ‘serve’ their sentence of death. Although a successful habeas petition by an incarcerated capital defendant may produce immediate benefits in the form of release from prison, retrial, or reduction of sentence, a court’s final rejection of all habeas issues generally removes the last judicial barrier to execution. Because courts may grant stays of execution during the pendency of habeas corpus proceedings, prisoners facing a death sentence may sеek to prolong their lives by ensuring that such proceedings are never finally concluded. Thus, death row inmates have an incentive to delay assertion of habeas corpus claims that is not shared by other prisoners.” (Clark, supra,
This case starkly illustrates the point. Events here followed an all-too-familiar pattern among our older capital matters. As the plurality explain, our Policies became effective in June 1989. We affirmed petitioner’s death judgment on appeal in September 1990, and the United States Supreme Court denied certiorari in May 1991. Riordan, as petitioner’s counsel throughout this period, “did not file a petition for a writ of habeas corpus in this court. Thereafter, the People obtained an order from the superior court authorizing petitioner’s execution. ([Pen. Code,] § 1227.) Petitioner successfully moved in federal court for a stay of the proceedings and appointment of new counsel. Newly appointed counsel subsequently filed a petition for a writ of habeas corpus in federal
Riordan, one of this state’s leading specialists in representing condemned prisoners, vehemently denies his inaction had a tactical purpose. Yet by doing nothing until an execution date was set, then stepping aside while new counsel obtained a federal stay and maneuvered in federal court, Riordan actually bought his death row client the most precious of commodities— time. He not only forestalled a scheduled execution, but also substantially postponed the moment at which any final rejection of petitioner’s claims would remove them as an obstacle to the pending death sentence.
It is just such concerns, unique to capital cases, that have informed our timeliness Policies, which specifically define the obligation of appointed capital habeas corpus counsel to investigate and present all potentially meritorious claims without substantial delay. The plurality eviscerate the Policies’ purposes by concluding that counsel’s very failure to follow these clear rules is its own excuse for the resulting tardiness of a petition for habeas corpus.
The plurality are careful to admonish that delay for its own sake is not a permissible tactic. They “wam[]” that we will report future cases of “abandonment” to the State Bar and may also seek to recoup
Despite all this, the plurality insist their result is necessary to resolve the “tension” between “society’s desire for finality of its criminal judgments and its insistence the person being punished is actually guilty of the crimes” (plur. opn., ante, at p. 704), and to preserve the writ of habeas corpus as “a final possibility for prisoners to prove their convictions were obtained unjustly” {ibid..). Such is not the case. Our existing capital habeas corpus rules already balance the competing interests, and they provide ample assurance that meritorious claims of innocence, or of fundamental injustice, will be grounds for relief on habeas corpus whenever presented.
In the first place, as the plurality indicate, our long-standing practice, now codified in statutory law, is to provide counsel to assist every indigent capital defendant, not only on direct appeal, but also in the pursuit of a collateral attack on the judgment. Besides compensating such counsel for their own legal services, we furnish funds to cover the miscellaneous costs and expenses of investigating potential claims. By doing these things, we seek to promote both fairness and expedition by maximizing the incarcerated defendant’s opportunity to promptly discover, develop, and present all sound bases which may exist for relief on habeas corpus.
But even after counsel has been appointed, our timeliness Policies impose no absolute deadline or limitations period for the presentation of claims. Instead, they begin to count delay only from the time a claim was or should have been discovered. And even when a claim is not presented with reasonable promptness after that, it is still timely if there is a sound and acceptable explanation to justify the delay. Any claim that is timely by these standards may be considered on its merits, unless the claim is simply not cognizable on habeas corpus or some other procedural bar applies. For example, under the rubric of ineffective assistance of trial counsel, a timely petition can assert almost any form of garden-variety trial error.
But when claims have been unduly delayed, the state’s countervailing interests in a final and enforceable judgment, and in avoiding both habeas corpus litigation and retrial of the underlying charges, assume much greater importance. Those interests justify substantial limits on a petitioner’s right to raise collateral challenges that were postponed solely because of counsel’s inaction.
Even here, however, we have recognized that the state’s interests are not strong enough to prevent habeas corpus relief against a “fundamental miscarriage of justice.” The petitioner may establish such a fundamental miscarriage at any time by showing (1) he is actually innocent, (2) his trial included constitutional flaws so basic that they produced an irrational guilt verdict, (3) his penalty trial was so factually distorted that it produced an irrational death verdict, or (4) he was sentenced to death under an invalid law. (Clark, supra,
This logical, fair, and well-established balance is upset, rather than vindicated, by thе plurality’s new and misguided theory, which threatens the bedrock underlying the timeliness rules themselves. I remain
In In re Robbins (1998)
Of course, as noted by Justice Kennard in Clark, supra,
Moreover, Riordan’s inaction has provided his client with another important tactical benefit. By thus ensuring that we will not impose our own procedural bar of untimeliness against the petition’s claims, but will reject those claims, if at all, solely on the merits, Riordan has also deprived the Director of Corrections of a possible procedural defense against identical claims raised in a later federal petition. (See, e.g., Coleman v. Thompson, supra,
In finding that appointed counsel’s entire failure to pursue efforts toward a first habeas corpus petition should excuse the petition’s substantial delay, the plurality make much of certain statements in Clark, supra,
While I dissent from the plurality’s holding that habeas counsel’s “abandonment” of duty constitutes good cause for the delayed filing of a later habeas corpus petition, I heartily endorse those passages of the plurality opinion that seek, once again, to explain the limitations on counsel’s obligation to investigate and present capital habeas corpus claims. As the plurality opinion makes clear, counsel neither must nor should conduct an “unfocused” investigation (plur. opn., ante, at p. 707); may cease efforts without filing a petition if reasonable investigation discloses no potentially meritorious claims (ibid.); and should, in the interest of “ ‘effective . . . advocacy,’ ” present only those claims that are potentially meritorious, rather than all possible claims (id., at p. 713, fn. 8).