*1 S167100. Aug. 2010.] [Nо. Habeas Corpus. SAMUEL ZAMUDIO JIMENEZ on
In re *2 Counsel Bordé, Laurence, Center, Sara Cristina Michael Resource
Habeas Corpus Jimenez. Zamudio for Petitioner Samuel and Monica Othón Cohbra for the Government and John T. Philipsbom John T. Law Office of Philipsbom Jimenez. Zamudio of Petitioner Samuel Amicus Curiae on behalf of Mexico as *3 Dеfender, Broderick, M. Assistant Corey, and Jennifer Federal Daniel J. and Central Districts Defender, for the Eastern Federal Defenders Federal for Zamudio behalf of Petitioner Samuel Amici Curiae on of California as Jimenez. Gillette, General, Brown, Jr., Assistant Dane R. Chief Attorney
Edmund G. Hamanaka, S. General, A. and Ronald Engler C. Gerald Pamela Tetef, Matthias, General, S. H. and Herbert Borjon Keith Attorneys Assistant State of California. for Respondent Deputy Attorneys Opinion to Morgan re (2010)
KENNARD, J. matter is a companion This 591, (Morgan). Cal.4th 932 993] [114 1998, death in and a sentence of After a conviction for murder of habeas to this court’s statutory right invoked his Because of а and death sentence. counsel to his conviction challenge inmates attorneys willing represent capital critical shortage qualified and one-half years had to wait eight habeas corpus proceedings, petitioner counsel’s appointment.1 932, Morgan, supra, 2008, 50 Cal.4th like the
In Septembеr any without filed a one-claim this petitioner until his defer a decision on exhibits. He asked us to supporting various investigate counsel had an adequate opportunity claims, to be lead to additional might presented factual and matters legal opposed an amended As in For as meritless. the current hаbeas corpus petition us to urging deny request, below, grant request. reasons set forth we 1 contrast, Morgan, supra, appointed lacks still By years requesting one. corpus counsel 13 after
I A convicted Samuel Zamudio jury (Pen. Jimenez of two counts of robbery Code, 211)2 and two (§ 187). counts of murder It § also found true two 190.2, circumstance special (§ murder allegations (a)(3)) subd. multiple (id., two circumstance special allegations murder robbery 5, 1998, (a)(17)). subd. On October the trial court a sentence of imposed death. His to this court from the appeal judgment of death was automatic. (§ (b).) subd.
In November that we petitioner requested counsel to appoint repre- sent him on his automatic and to file a habeas appeal on his behalf. In August counsel to on represent petitioner In June appeal. counsel—the Habeas (The Resource Center. Corpus reasons for the delay in counsel are appointing II, discussed in pt. post.)
In we issued a April unanimous in the automatic opinion We appeal. vacated one circumstance but multiple-murder special otherwise affirmed the and the convictions of death. (2008) v. Zamudio 43 Cal.4th (People 105], 327 cert. den. sub Kelly nom. v. [75 California (2008) 555 U.S. 564].)3 1020 L.Ed.2d 129 S.Ct. [172 In the Habeas September Resource Center on Corpus petitioner’s behalf filed in this court a for writ of habeas The petition corpus. petition exhibits, lacks any and it a supporting alleges claim: that single petitioner “was of his to effective deprived right assistance of counsel trial counsel’s deficient constitutionally at the of trial.” perfоrmance guilt his phase Specifi- the cally, faults trial counsel for not to instances of objecting multiple misconduct, all alleged of which in the prosecutorial record. appear appellate elaboration, The also without that trial counsel alleges, “rendered deficient in cоnstitutionally representation failing investigate, adequately and and prepare, present guilt circumstance defenses special motions litigate to the exclusion and admission competently relating [and] of evidence.” Included in the for relief is a that this court prayer request informal and further on until briеfing stay this proceedings “[d]efer 28, 2010, June the or of an Amended Petition for Writ of filing Habeas earlier, whichever is so that file Corpus, available petitioner may reasonably documentation in of the as well as additional claims support any become known to him that time.” may during 2 stated, statutory Unless otherwise all furthеr are citations to the Penal Code. 3 Zamudio,” opinion appeal Our on showed name we as “Samuel which obtained the according from information filed in the trial court. But to the habeas
petition, petitioner’s true name is Samuel Jimenez. Zamudio
955 he did in Morgan, In the as Attorney response, The to Show Cаuse.” Attorney a Motion for Order “People’s the defer a decision on asked that we not General in we Morgan, it meritless. As we did deny but that instead motion as an opposition an order the General’s construing issued and asked the We then both petitioner’s request. issue, the matter for briefs on the and scheduled to submit suрplemental (See views in court. Cal. so the could their argument open oral parties express motion, Court, 8.54(b)(2) or its own request Rules of rule a party’s [“On a hearing.”].) court a motion on calendar for may place matter, but within 36 this had heard oral argument After court submitted an counsel’s months appointment, claims. We additional “Amended Petition for Writ Habeas Corpus” “received” the outcome of this proceeding. marked document as pending
II California, who has been convicted of a indigent prisoner crime to this statutory and sentenced to death has court’s right the conviction challenge counsel tо But, Code, 68662.) (Gov. sentence of death. we noted Morgan, § this court recruiting because has difficulty experienced qualified row, counsel, inmates death on California’s approximately (See are still without such counsel. including does 934.) Cal.4th at here have Morgan, supra, Although petitioner p. *5 counsel, until habeas did not occur eight the appointed corpus and one-half the death. years judgment after of rules,
Under challenging this court’s a habeas corpus petition if filed 36 months of of death is be within judgment timely presumed Ct., (See Cal. Policies Cases Regarding counsel’s appointment. Supreme Death, 1-1.1.) from in this rule is Arising of std. Judgments policy Implicit that, case, habeas the in a recognition investigating potential corpus capital claims take may long habeas preparing adequate corpus petition This Before the must consult years. three is counsel why: petition, preparing (here the totaling with the and must review nоt trial record only 5,000 counsel’s notes. more than but also the and trial reports pages) police addition, factual and investigate legal counsel must various habeas corpus These tasks become matters that lead to meritorious claims. may potentially when, here, is habeas counsel not mоre as occurred challenging corpus death. In until after the of years judgment and one-half eight may and witnesses no may destroyed critical documents have been timespan, available, their have faded. may be or memories longer Petitioner’s habeas Thus, counsel was in June 2007. the satisfy 36-month time mentioned рeriod in the preceding paragraph, had until June 2010 to file a presumptively timely habeas Instead petition. until that date waiting to file a reasonably thorough petition claims, all arguably filed a one-claim in September before completion As in investigation. Morgan, supra, Cal.4th counsel’s apparent purpose filing was to preserve to seek petitioner’s right relief in the federal courts. law,
Under federal remedies in state court must be (see exhausted 28 U.S.C. 2254(b)(1)(A)) before a § state can seek prisoner courts, relief in the federal which that the require be filed within one year from “the date on which the judgment became final by the conclusion of direct review or the of the time for expiration such seeking (28 review” U.S.C. 2244(d)(1)(A)). A California state court § judgment death becomes “final” the United upon States Court’s Supreme denial of a defendant’s for writ of certiorari filed by defendant after our death, affirmance of the or of the time upon expiration which the defendant may seek certiorari in the federal (Bowen court. high v. (9th 1999) Roe Cir. 188 F.3d 1159-1160.) But the federal statute of limitations is tolled while there is pending state court a “properly application State post-conviction or other (28 collateral review.” U.S.C. 2244(d)(2).)4 § date,
To nо federal court published decision has addressed the issue of whether state habeas such corpus petitions as those filed in this matter and in are to toll the federal adequate statute of limitations for claims not raised in the original but raised later in an amended We no view on express this issue of under federal tolling law, that a observing only denial this court by of the current habeas corpus a result advocated would immediately stop of the federal tolling statute of limitations. *6 932,
As he did in Morgan, 50 Cal.4th the argues that under state “longstanding we should not defer precedent” deciding habeas cursory filed for the corpus pеtitions of the federal purpose tolling statute of limitations. As in we disagree. 4 28, Title 2244(d)(2) United States Code provides: section during “The time which a properly filed application for State post-conviction or other collateral respect review with to the
pertinent judgment pending or claim is shall not аny period be counted toward of limitation under this subsection.”
957 Earlier, under a who is indigent prisoner we that in California an noted corpus a to habeas right court of death has judgment statutory 1998, Here, after the five or so invoked that in weeks counsel. right recruit death, able to a of it was not until 2007 that were but Had the aрpointment to the willing accept qualified attorney appointment. have counsel could presumably occurred after shortly request, filed, thorough a reasonably of the on appeal, after the briefs shortly filing the court’s denial of the petition, habeas event of this corpus petition. relief the federal courts could then have habeas corpus pursued within the federal of limitations’ one-year period. statute when, here, shortly not until
But habeas counsel is corpus final, the conviction becomes counsel before inmate’s from that appeal counsel, thoroughly faces a dilеmma. If after various investigating procedural matters, factual and files a habeas all legal corpus state petition claims, more a will have after the year than potentially elapsed deadline of the and therefore the federal statute’s finality one-year appeal, if will bar the of a habeas in federal court. But habeas corpus filing petition the filing counsel federal statute limitations tolling seeks constraints, that, court a the is and this cursory, upon time petition given claims, denial files a additional court’s of that second petition raising petition barred, those claims be becausе rejected being are to likely procedurally that, a single claims be presented whenever all require possible, In re (See Clark (1993) 5 780-781 Cal.4th petition. Cal.Rptr.2d [21 if, (Clark).) P.2d toll statute of Or an effort to the federal 729] limitations, a counsel in this court files that, constraints, the and all time is raises conceivable given hastily prepared issues but is evidentiary without sufficient providing support, v. Duvall be (People to denied for lack of documentation. likely adequate (1995) [petition [37 1252] should contain available evidence “reasonably documentary supporting claim, and affidavits or of trial including portions transcripts pertinent declarations”].) Here, limitations in an to toll the statute of while also attempt federal counsel, state with
complying procedural requirements, factual investigation without benefit of a of relevant reasonably thorough matters, defer asked us to a filed a one-claim He legal on until he had his opportunity complete decision a reasonable additional claims. and to file amended investigation petition raising Because, rules, state under is presumed this court’s (see Cal. be if within 36 months of his timely Supreme Death, Ct., Judgments policy Policies Cases from Arising Regarding decision until 1-1.1), std. counsel asked us defer our expiration *7 958
36-month which time period, by his investigation would be and an complete amended could be filed.
Since here, circumstances similar to those habeas counsel inmates have capital in the proceeded same manner as counsel instance, here. In each we have deferred consideration of the counsel to allowing later file an amended petition within the 36-month period set forth in our court rules.
The challenges practice being inconsistent with this court’s pronouncement Clark that we will not action “routinely delay on a filed to amendment and permit of the supplementation рetition” (Clark, supra, 781), Cal.4th at and that p. claims must be generally “in a presented single, timely for writ of (id. habeas at corpus” 797). We are p. not in the habit of routinely consideration of postponing habeas so a corpus petition can file an amended petition raising (Clark, additional claims. supra, 781.) at But thе p. extraordinary circumstances here and in similar presented petitions justify As exception. earlier, explained in California an indigent who is under a court prisoner judgment of death has a to the statutory right assistance of counsel. Due to the critical shortage qualified counsel willing accept appointment (see counsel in cases capital 50 Cal.4th at supra, 937-938), here pp. it took us eight and one-half years find a qualified attorney willing Had there accept appointment. been reasonably with prompt compliance for such request appointment, counsel would have had the time to conduct a thorough and to investigation file a habeas in this court corpus petition all potentially claims within the federal law’s deadline of one from the year of the finality (see and, of death ante), denied, if that p. was could have filed a timely in federal court.
A denial in this court of this and similar tо defer consideration of requests inmates’ habeas a result corpus petitions, advocated by make it may even more difficult for us in the future to recruit inmates, qualified counsel for death row light dilemma (See ante.) faced counsel. procedural p. here
Nothing alters Clark's a habeas requirement generally must all raise claims in a single (See unamended petition. Clark, 797.) Cal.4th at We here hold that a pp. only departure from that is under the requirement appropriate circumstances extraordinary presented.
Disposition submitted to June while this matter was On pending, In light Petition.” entitled “Amended Habeas Corрus this court document submission, consideration we treat request postpone that leave as a motion for previously document, and construe the with the submitted amend newly leave motion in a motion deny petitioner General’s opposition and instead to treat the newly to amend the cursory as a and We submitted document subsequent separate motion, General’s motion deny opposi- grant petitioner’s tion, June and we the amended filed as of 2010. order J., Chin, J., Moreno, J., J., and concurred.
George, Werdegar, C. J., CORRIGAN, I concurin Concurring Dissenting. disposition case, “shell” habeas holding but I dissent from the majority’s approving re set forth my reasons corpus petitions separate opinion Morgan (2010) 50 Cal.4th 932 [114 993].
Baxter, J., concurred.