*1 S043131. Aug. 1999.] [No. LEE SANDERS on Habeas Corpus.
In re RONALD
701 Counsel Jorstad; Collins, Benson, Eric E. Cullen Mary Yeager, & Robert L.
Faegre Rivkind for Petitioner. Nina General, Williamson, George Attorneys Daniel E. Bill Lungren Lockyer, Anderson, General, R. Assistant Attorney Robert Attorney Chief Assistant Kirkland, General, General, Attorneys N. Deputy W. Scott and Jane Thorpe for Respondent.
Opinion
WERDEGAR, J.
decisions
In re Robbins
recent
Our
In
(Robbins) and
re
P.2d
Cal.4th
Cal.Rptr.2d
[77
311]
P.2d
(1998)
Background case,
Because we are concerned with the of this only procedural aspects the facts of crime are not relevant. it to Suffice say, petitioner Ronald Lee and one Cebreros committed a home Sanders John invasion Boender, dealer, of Dale and his Janice Allen. robbery drug girlfriend, Both victims were bound and blindfolded and struck on the head a blunt with survived, Boender but Allen died. object. Petitioner was convicted in Kern Court of first County degree Superior (cid:127)
murder, murder, The robbery, burglary robbery. attempted attempted firearm, also found true two was armed with a jury allegations petitioner as well as four the murder was committed allegations: special-circumstance commis while was commission or petitioner engaged attempted Code, 190.2, (Pen. (a)(17)(i) sion of the former subd. robbery burglary § (a)(17)(A) (G));2 (vii), & see now subd. & the victim was killed intentionally 190.2, (§ (a)(10)); her in a criminal subd. prevent testimony proceeding heinous, 190.2, (§ and the murder was atrocious and cruel subd. especially (a)(14)). set The death. This court counsel to jury penalty Thereafter, on this court set aside two of represent petitioner. appeal, four but affirmed the otherwise special-circumstance findings, judgment 537, (1990) 51 its v. Sanders Cal.3d 471 entirety. (People Cal.Rptr. [273 561].) P.2d court, filed a
Still represented by appointed by for a writ of certiorari that was denied the United States petition (Sanders v. U.S. Court 1991. May California 2249, 2250, 490].) S.Ct. 114 L.Ed.2d Counsel did not file a petition Thereafter, court. obtained an a writ of habeas in this People (§ 1227.) execution. order from court authorizing petitioner’s superior in federal court for a Petitioner moved successfully stay proceedings of new counsel. appointment Newly appointed subsequently court on December filed a for a writ of habeas federal (Sanders CV-F-92-5471-REC-P.) After the v. moved Vasquez, People 1993. remedies, to dismiss the for failure to exhaust state successfully this court on filed a for writ of habeas with Court, (see In his informal Cal. Rules of rule November 1994. response *6 alia, claimed, all claims 60), the General inter Attorney and should be denied for that reason. untimely were 13, 1996, ordered the Director of Corrections to show cause On June we circumstances, whether, ineffective assistance of coun “(1) and under what of a claim on habeas corpus sel or excuse may explain stated. statutory 2A11further references are to the Penal Code unless otherwise
703
509,
729];
855 P.2d
Discussion
A. Introduction Robbins, insist a
As 18 Cal.4th we recently explained to a final criminal do so in judgment collateral litigant mounting challenge be made reasonably fashion. that such timely By challenges requiring of its criminal finality we interest in promptly, society’s vindicate reasonably as as the interest “in the judgments, orderly well public’s (Id. 778.) its Such timeliness rules laws.” prompt implementation serve other to file his or her interests well. salutary Requiring prisoner ensure that vital evidence will not be lost challenge promptly helps possibly addition, of time or the of memories. In through fading passage cannot overestimate the come may value psychological repose victim, victim, or the and friends of the surviving family generated by the ordeal is over. enforce time limits knowledge Accordingly, we finally (see, on the for writs of habeas cases petitions noncapital (1949) 793]), In re Swain 34 Cal.2d P.2d as well as in e.g., 304 [209 (Robbins, cases in which the death has been penalty imposed 770; 825; re 5 Cal.4th Cal.4th Clark Gallego, supra, (Clark)). 855 P.2d Cal.Rptr.2d 729] attacks on criminal judg The manifest need for time limits on collateral ments, however, that mistakes in the must be with the knowledge tempered criminal are sometimes made. substantive justice system Despite crimes, the afforded those accused of committing procedural protections basic charters our hold a final governing society wisely possibility open Const., (U.S. art. their convictions obtained unjustly. were prisoners prove I, 9, of habeas cl. 2 federal writ [limiting government’s suspend power § Const., I, [limiting Cal. art. state government’s power corpus]; § thus of habeas A writ of corpus may writ suspend corpus].) “[h]abeas the normal an avenue of relief to those incarcerated when unjustly provide *7 704 relief—i.e., (In (1993) 5
method of
direct
re Harris
appeal—is inadequate”
813,
373,
391],
omitted),
P.2d
fn.
and the
Cal.4th
828
855
Cal.Rptr.2d
[21
“
Great Writ has been
lauded as
‘the
and the
justifiably
safe-guard
palladium
”
764,
re
(Clark,
of our liberties’
5 Cal.4th at
In
supra,
Begerow
quoting
349,
828];
(1996)
(1901) 133 Cal.
353
P.
see also Lonchar v. Thomas
[65
1293, 1298,
440],
517 U.S.
S.Ct.
134 L.Ed.2d
Smith
quoting
[116
895, 897-898,
v. Bennett
365 U.S.
S.Ct.
6 L.Ed.2d
39]
of habeas
is the
of
“highest safeguard
liberty”]).
[writ
A tension is thus created between
desire for
of its
society’s
finality
insistence
criminal
the
is actually
its
judgments
person being punished
or
way
of the crimes which he
she was convicted. One
guilty
attempt
be filed
to resolve this tension is to
collateral
require
challenges
promptly,
cases,
but to excuse
on a
cause.
In
delay
showing
good
capital
timeliness of a
for a
of habeas
is
according
writ
evaluated
Robbins,
a
test. We
this test in
recently
supra,
four-pronged
explained
Cal.4th
which
3 of the
Court Policies:
policy
incorporates
“Pursuant to
in June
a habeas
court
policies adopted by
than
is not entitled to a
of timeliness if it is filed more
presumption
due
brief on the
after
final
date for the
days
appellant’s reply
case,
direct
In such a
to avoid the bar of untimeliness with
appeal.
respect
claim,
(i)
each
has the burden of
absence
establishing
petitioner
(ii)
(iii)
cause
claim falls
or
delay,
good
delay,
to the bar
is
within
of untimeliness.
Substantial
exception
ft[]
knew,
time
measured from the
or his or her counsel
or
petitioner
known,
should
of the information offered in
have
reasonably
support
A
thereof
claim and the
basis for the claim. . . .
claim or
legal
part
Hfl
be considered on the merits if
that is
nevertheless will
substantially delayed
claim
can demonstrate
cause for the
. . .
A
good
petitioner
[f]
cause, and hence is
that is
without
substantially delayed
untimely,
be entertained on the merits if the
demonstrates
nevertheless will
petitioner
(i) that error of constitutional
led to a trial that was so fundamen
magnitude
or
unfair that absent the error no reasonable
would have
tally
judge
jury
(ii)
convicted the
that the
innocent
actually
petitioner;
petitioner
convicted; (iii)
he
that the death
crime or crimes of which
or she was
penalty
that had such a
authority
grossly misleading
was
imposed by
sentencing
that,
omission,
before it
absent the trial error or
no
of the petitioner
profile
death;
(iv)
or
reasonable
would have
sentence
jury
judge
imposed
(Robbins,
or sentenced under an invalid statute.”
was convicted
780-781,
omitted.)
four
first
italics
These latter
were
exceptions
pp.
Clark,
announced in
Petitioner’s brief on filed October was opening appeal 28, this, his brief on filed March He filed his first was 1985. reply appeal state habeas on correctly November 1994. corpus petition, Respondent this is thus not entitled to a of timeliness argues petition presumption because it was not filed “within after the final due date for the days Policies, brief on the direct Ct. reply appellant’s appeal.” (Supreme 1-1.1.)3 std. policy
The of timeliness we next decide whether presumption being inapplicable, has satisfied his burden of claims in the demonstrating legal our nevertheless were filed without substantial petition delay. issuing cause, “whether, order to show we limited under what question circumstances, assistance of or excuse may delay ineffective explain in a claim . . on habeas . whether [and] in his automatic rendered ineffective appointed represent petitioner appeal assistance as to claim set forth the instant for writ any petition at an time by failing claim earlier present (Italics . . . .” added.) As this of the issue the claims in suggests, phrasing were after a substantial petition presented turn, then, We to the central issue in this case: the inaction of whether determination counsel is relevant to the of whether for a of habeas writ petitioner’s filing is excused cause. by good
B. Counsel’s Abandonment Constitutes Cause Delay Good At the time of this court followed petitioner’s appeal, general policy cases of the same the defendant for attorney appointing represent both direct and habeas Ct. appeal corpus proceedings. case, that, change vintage 3This result does not when we due to the five consider this filed, supplemental briefs were the last June (Respondent supple on 1990. filed a fifth 2, 1990.) July using mental response Even were we to assess the timeliness of the date, 90-day this latter the habeas period is nevertheless well outside the under standard 1-1.1. l-l.)4 Attor- std. court policy Accordingly, Dennis Riordan to both on and for ney represent petitioner appeal however, counsel, never filed corpus proceedings. Appellate peti- *9 Moreover, tion for a writ of habeas to counsel’s own according corpus. declarations, he conducted a brief clear that a “made investigation the investigation full-scale would be evidence required necessary compile habeas claims adequately allege waiver regarding petitioner’s penalty defense and trial counsel’s failure to investigate mitigating phase possible Nevertheless, Petitioner evidence.” counsel ceased his efforts. investigative conduct, contends that in this of course engaging provided that, assistance, ineffective in that he abandoned essentially petitioner, Policies, 3 of Court abandonment under the this constitutes policy Supreme contrast, cause” for of filing the belated the habeas “good corpus petition. By no has constitutional to the assistance argues right respondent petitioner a collat- final criminal in a state appointed overturning judgment thus, and, cannot eral counsel’s ineffective assistance proceeding, alleged constitute 3. good cause under policy outset,
At the the the us. We we narrowness of before emphasize inquiry are whether a under sentence simply determining petitioner, prisoner death a his seeking filing writ of habeas has shown cause for corpus, good after a claims he court- substantial Petitioner relied on his petition delay. this with court’s rules attorney timeliness comply no the to investigate fault of legal representative—through prisoner—failed for claims for which there existed adequately grounds potential trigger- and, thereafter, based facts to file for a writ ing petition with that he has reasonably agree on discoverable evidence. If we petitioner cause our means that we will good delay, agreement shown only whether he makes an adequate examine determine proceed petition A for relief on the merits. determination has established showing petitioner not, words, him to any cause” does in other entitle “good delay itself must exami- relief; substantive such relief await further availability his habeas allegations nation of factual specific corpus petition. If, hand, the other find fails to show cause for we good need ourselves factual we read to assure delay, only his case one of do not make a facie falls within showing allegations prima Clark, set the four to the timeliness forth exceptions requirement words, Robbins, 780-781.) 18 Cal.4th at In other Cal.4th 750. pp. an error indicating of one of Clark exceptions absent applicability files his or her habeas corpus if defendant magnitude, fundamental Policies, February permit Supreme Court effective 4This court amended the separate appellate counsel. after a and fails to show cause for that good delay, substantial that, filed, this court need not consider claims had been they timely might been meritorious. have us, in mind the before turn to narrowness
Keeping question whether counsel abandoned in connection with his habeas prior and, so, if whether such abandonment establishes corpus proceedings cause under Court 3 for a habeas policy after 1. Counsel Abandoned His Client
The version of the Court Policies original Supreme provided “[ap- counsel in cases shall have a to factual and pellate capital duty investigate grounds for the of a for a legal filing writ . . . All petition corpus. for writs of habeas should be petitions filed without substantial corpus Policies, 3, Ct. delay.” 1-1.) former std. (Supreme This policy duty first, on or habeas imposed appellate counsel has three In the corpus phases. record, or counsel should preliminary phase, review trial counsel’s case briefs, files and and should discuss the case trial appellate with second, and the client. In the or investigative counsel should seek phase, Policies, investigative funds from this court Ct. (Supreme supra, policy 2-8.3) stds. 2-1 to and and those promptly diligently investigate potential claims corpus which counsel has become aware of concerning trig- third, facts. In the gering after the phase, diligent investigation counsel, all claims is potential if should completed, appropriate, prepare file a habeas all meritorious corpus petition presenting claims. potentially
We amended the recently Court Policies. standard Supreme Policy 1-1 4, 1998, Court Supreme amended February provides: “Habeas counsel in a case shall have a to duty investigate factual and legal grounds for for a of habeas writ The duty to is limited to corpus. investigate meri- investigating potentially torious for relief that come to grounds counsel’s attention in the course of reviewing counsel’s list of appellate meritorious habeas potentially issues, counsel,
relief, he or she must file a prepare timely for a writ of habeas corpus. duties, of the light these discern scope general two situa
tions in which we find might abandonment constituting good First, cause for if, abandonment filing petition. would occur cases, we have seen in some counsel did to commence a absolutely nothing failed corpus investigation, otherwise even to his or acknowledge her habeas corpus We have declined to the bar of responsibilities. impose untimeliness in such cases.
Second, abandonment also occurs when counsel ceases representation
before he or she
(i.e.,
should have done so
before
investigation
complete,
“merely
5This amendment
previously imposed duty,
clarifies the
and accounts for the
involvement,
legislation,
under the recent
separate
appeal
direct
and habeas
counsel.
change
The amendment
scope
duty
effects no substantive
in the
of counsel’s
to conduct a
792,
(Robbins,
13.)
corpus investigation.”
supra,
p.
18 Cal.4th at
fn.
matter,
6At the relevant time in this
request
counsel was authorized to file a confidential
corpus investigation
(See
6.)
expenses.
Gallego, supra,
p.
On appeal, appellate trial counsel argued was constitutionally ineffective by permitting waive a petitioner defense. We penalty phase claim, rejected in the explaining nothing record showed trial counsel “failed to investigate available mitigating evidence or advise defendant of its Sanders, significance.” v. (People 526.) 51 Cal.3d at At the time the decided, therefore, was appeal counsel was on notice that the appellate only way and, properly this claim was to present it if the facts warranted, it ain for a present writ of habeas corpus.
In October sought investigative funds from this court to undertake a habeas We denied corpus investigation. without preju- $3,000 dice all but $3,000 Counsel request. then used the authoriza- tion to hire an “to investigator interview to obtain basic historical information about and his family, trial counsel had something *12 never done.” Petitioner asserts counsel’s initial appellate un- investigation covered information “biographical that a establish[ing] major investigation was in order to required the compile evidence to necessary support claims regarding petitioner’s waiver of a and penalty defense trial counsel’s failure to investigate possible evidence.” Counsel himself mitigating states in a 1994 declaration that information biographical in the “[the] [uncovered initial $3,000] investigation the using made clear that a full-scale investiga- tion would be to required adequately habeas claims allege regarding peti- tioner’s waiver of a defense and trial penalty [phase] counsel’s failure to investigate possible mitigating evidence.” information,
After obtaining triggering (under counsel should the ante, (see rules then applicable 6) fn. have returned to this court to Instead, belief seek additional the of other and a funding. work citing press case, the Court Policies did not to this counsel did Supreme apply Counsel’s declaration that he did not nothing. explains proceed (or so) facts additional funds do because investigate seek triggering my was abilities the extent simply beyond my given investigation “[s]uch declaration, added.) . . .” In a (Italics caseload. supplemental stated “that further that in he advised the California Project Appellate I unable to Mr. investigate corpus petition was a habeas draft behalf of I . accom- my Sanders. believe that I . . that workload could not explained case, another modate I was two capital already since representing” added.)7 (Italics other inmates. capital
To the extent claims the Court do not Policies petitioner Supreme apply noted, case, he is mistaken. As the version of the Court original Supreme Policies counsel in cases shall have provided “[ajppellate duty factual and of a for a investigate legal grounds for writ of habeas . . . All should be corpus. for writs petitions filed without substantial Ct. delay.” (Supreme supra, policy 1-1, 1-1, std. see 2d Immediately former now std. preceding quoted par.) 6, 1989, “[Ejffective Court stated: June all language, Policies Supreme death, for of habeas from whether judgments writs petitions corpus arising resolved, are are appeals pending governed previously therefrom clear, (Italics added.) As was these standards.” because petitioner’s appeal effective, at the time Court Policies became pending Supreme version notice that he original counsel on policies placed appellate for a a writ of habeas investigate grounds was required and, uncovered, if meritorious were grounds prepare at (Robbins, and file without substantial 808.) Clark,
As we 5 Cal.4th at with explained page exceptions here, timeliness Court not applicable requirements passages fact believed he 7These from counsel’s declarations demonstrate counsel in investigate the triggering had facts to further claim of ineffective assistance of trial (based concerning upon properly failure to advise defense), yet busy did not do so matters. Justice penalty because he was with other dissenting own concurring opinion gives weight insufficient to counsel’s Kennard’s act, a different for counsel. explanation supplying of his failure to instead motivation however, justification Significantly, neither of his two declarations did counsel advance the dissenting concurring (post, pp. him supplied opinion in Justice Kennard’s i.e., 728-729), without imprisonment that because did not a sentence life want *13 defense, “any possible a this possibility parole, penalty and hence waived rendered investigation . . Instead of advanc inadequacy penalty phase in trial . irrelevant.” counsel’s concurring dissenting opinion’s justification, stated—twice— ing post the hoc counsel claim, though investigation, because pursue thought he did not even he it warranted that the doing so did not fit his caseload. within the applicable “did not create or timeliness modify requirements Policies Rather, Court Policies merely all habeas corpus petitions.” Supreme language timeliness plain requirements, [and] “incorporate[d] preexisting all standards apply that their timeliness of the Policies demonstrates Policies.” prior adoption those which arose including capital appeals, (Cl added.) ark, Although acknowledged at italics supra, p. did, time, obligation Policies for the first impose express “[t]he bases in cases to investigate possible capital representing appellants counsel, 783), to come within habeas at we explained for corpus” {id. be filed need delay, only the rule such without directing petitions time of habeas within a reasonable have filed a for writ petition (id. 785). Court Policies following Supreme promulgation not, he in have been able to qualify Petitioner is correct that would timeliness under the then newly for a finding adopted presumptive Policies, brief filed much earlier than their Court for his was Supreme reply Nevertheless, date. could have filed a habeas corpus effective claim his without substantial We thus petition delay. reject petitioner’s grounds counsel had no at least to duty investigate potential appellate indicated, for a habeas As writ of corpus. petitioner’s appellate notice, 6, 1989, counsel was on no later than June the date we adopted Court that he was Supreme obligated grounds for a of habeas if such writ possible petition corpus, prepare discovered, were and file the in this court without substan grounds (Robbins, 791-792.) tial Cal.4th at Counsel’s failure to pp. do so left no with regard with petitioner essentially legal representation circumstance, indicated, claims; is relevant to deter lateness of the whether cause exists to excuse the mining good present petition.
Petitioner further contends his did not believe attorney to this case in actually timeliness rules in the Court Policies Supreme applied Robbins, 780, however, Cal.4th at we stated that 1989. In page about uncertainty cause is not established counsel’s asserted “good by prior and to file an his or her to conduct a habeas duty investigation (Italics in original.) petition.” appropriate relevant to the Petitioner asserts two additional circumstances question First, that, Court Policies cause. when alleges unable to undertake the became effective “was due to for and the state investigation corpus petition” preparation court, as well as being other cases from appointments 6, 1989, other June when of record “more than cases between thirty *14 712 announced, 2, Court and when certio were 1991
[Supreme August Policies] declaration, (Italics added.) rari was denied this In his [in case].” he (1989), states that critical time in was counsel during question (1986) record in four case v. 42 Cal.3d (People Rodriguez appeals 667, 113]; (1989) 730 726 P.2d v. Bloom 48 Cal.3d People Cal.Rptr. [230 698]; (1992) 1194 774 P.2d v. 2 Cal.4th People Roberts Cal.Rptr. [259 274]; 826 P.2d Marshall 13 People v. Cal.Rptr.2d [6 1280]) Cal.4th P.2d and in more than thirty Cal.Rptr.2d other cases one one hearing criminal State Bar matter and (including parole Terms). before the Board of Prison
That an has demonstrated a to undertake the attorney willingness appellate difficult to task criminal defendants sentenced suffer representing death his timely does not excuse failure to penalty investigate fully (See for in case. Rules potential grounds particular relief Conduct, 3-110(A) Prof. rule not intentionally member shall . . . fail [“A (B) services defined perform legal competence.”], [“competence” with “mental, emotional, neces- applying physical ability reasonably service”].) for the of such If counsel in this case sary performance overextended, found himself he should have other sought by associating help id., (see him his rule legal to assist with complying obligations in 3-110(C)(1)) or filed a motion withdraw as of record. Counsel’s attorney failure do either that he abandoned supports finding simply petitioner.
Second, funds investigative contends court’s denial of Gallego, counsel’s to conduct a hampered ability investigation. proper establish claim was recognized may we if filed without substantial he or she was unaware “previously claim, failed to information offered in support given reasonably he earlier the in of that claim because discover information offered support (Id. or she but was denied claim.” timely requested funding 834-835, added, omitted.) italics fn. If denial funds investigative pp. relevant of substantial factor reason delay, to determining question exists to also be to the of whether cause ably question should relevant the delay. explain
As counsel’s granted case Gallego, request 830.) 18 Cal.4th at Gallego, supra, funds investigative only part. however, the balance counsel’s fund request Unlike in we denied Gallego, Thus, contends this court’s denial without although petitioner prejudice. inves- thorough funds counsel’s conduct investigative ability hampered funds, sure making need request have renewed tigation, only be an issue of suggest may possible facts that there allege “[s]pecific *15 then, Policies, 2-4.2.) std. is Gallego, merit.” Ct. (Supreme policy inapposite. will, is this a case meritorious issues. we lacking Although
Nor potentially order, in the address the substantive merits of the claims raised by separate for a of habeas note the contains no shortage writ we petition corpus, petition of claims issues of merit. Perusal of the reveals the raising potential trial, of some includ- allegation disturbing potentially aspects petitioner’s counsel, (i) claims that: trial a former had ing petitioner’s prosecutor, (ii) used one of the witnesses in a sting operation; previously prosecution had, trial counsel in and in his role as a a guilty prosecutor, accepted witnesses; (iii) from one of alibi concealed petitioner’s police actively plea witness; (iv) a a whereabouts of who served juror potentially exculpatory (v) on the concealed on voir dire her arrest for one jury growing marijuana; evidence; (vi) received juror extrinsic one received a letter from juror (vii) one was emotional dur- juror severe petitioner; experiencing problems that, trial and stated had she been less she ing well have “might depressed, convict”; (viii) held out and not to voted was to waive incompetent defense; (ix) trial counsel ineffective assistance of penalty phase provided counsel to and by failing (x) evidence in present mitigation; at least some of the learned that the first had jurors jury trial 11 to 1. hung facts for of these and other claims
Triggering many now raised in for writ of habeas either were known or exist in the record. Such claims would to have been appellate certainly appear and, “potentially meritorious” if purposes investigation appropriate, to this court. of the ultimate success of Irrespective case, here, in any given (or, counsel as appellate ante, counsel), counsel as habeas as has the acting duty explained, conduct a reasonable investigation actually not meritori- present just (an ous claims before but all meri- imponderable adjudication), potentially torious claims.8 sum,
In neither counsel’s belief in the inapplicability caseload, Court nor his excuses his inaction. pressing Appellate caution, however, just ‘winnowing arguments 8We process out weaker “[the] focusing appeal likely prevail... on’ those more the hallmark of effective 2661, 2667, (Smith advocacy” Murray v. 477 U.S. S.Ct. L.Ed.2d Robbins, 434]; 31), see 18 Cal.4th at fn. so too habeas must petition. Although make decisions on which claims to include ain we often see voluminous cases, subclaims, raising corpus petitions accompanied dozens of issues and exhibits, pages emphasize present only hundreds of claims counsel should those meritorious, potentially possible that are not all claims. merit indicating facts that issues existed potential possessed that additional was to such investigation response triggering required. facts, not or counsel did seek additional conduct further investi- funding in order determine whether meritorious claims existed. gation did his Nor he move associate additional to assist him with workload, Instead, from his he did obligations. withdraw Counsel, short, abandoned client. nothing. *16 “an
Respondent argues was petitioner’s appellate attorney experienced, on “it defense” and that perhaps authority unlikely pre-eminent, capital that such an . . experienced attorney simply cavalierly defense . capital concluded that did Policies not him because Supreme apply [the Court] the briefs in this case filed before the were policies published.” were had a reason suggests counsel tactical for Respondent failing reason, the in face of facts. This tactical triggering suggests, respondent eliminates the abandonment was other than a counsel’s possibility “calculated the case. Petitioner this delay strenuously plan” opposes notion; he has filed a declaration counsel that by supplemental for to file flatly denies counsel had tactical reason a habeas failing corpus petition.9 record,
On the state of in mind our concerns the keeping inquiry not the entitlement timeliness filing—a procedural point—and relief, we this issue on the substantive resolve pleadings simply accept the assertions in sworn declaration. Our resolution of this issue counsel’s Robbins, our is consistent with decision in 18 Cal.4th pleadings 770, which, in faced in the return with conflicting allegations respondent’s and the learned of the traverse when regarding petitioner’s claim, factual resolved on the basis we the issue pleadings accepted (Id. 798-799.) sworn at Under the circum- petitioner’s pp. statements. stances, acted for a tactical contention reject respondent’s we reason. attorneys delaying proceedings may by represent be viewed some 9We are aware decision,
ing strategic tactical penalty condemned to suffer the death defendants legal appeal has claims to on direct or in unless defendant meritorious raise attack, adjudication legal attorney may delaying believe that final claims is collateral early only way realistically days capital the client’s In the habeas serve interests. state, litigation following the death in this it was not uncommon for penalty reinstitution of moment, after possible cases to the last capital corpus petitions file state attorneys courts, set, by the federal and a federal an execution date was federal 1989, Supreme the issuance of the Court Policies in corpus petition filed. With however, course. As result of permissible became clear that such is not a tactical it Clark, 5 Cal.4th adoption Court Policies the decision generally timely in this court. corpus petitions find are filed in fashion now
715 2. The a Federal Constitutional to Counsel Is Right Absence Irrelevant contends abandonment counsel is of no
Respondent
because
does not have a federal constitutional
legal consequence,
of counsel for state collateral
A criminal
right
appointment
proceedings.
defendant,
course,
is entitled at trial to
legal
representation
competent
counsel,
(In
both the federal and state Constitutions.
re
right guaranteed by
(1990)
862);
Fields
51 Cal.3d
800 P.2d
U.S.
Cal.Rptr.
[275
Const.,
Amend.;
Const.,
I, 15.)
6th
art.
are
Cal.
We
well
with
acquainted
§
cases,
claims of ineffectiveness of trial counsel in
are made
they
most,
(See,
(1996)
if not
such cases.
In re Jones
many,
e.g.,
P.2d
in its
due
vacated
Cal.Rptr.2d
[judgment
entirety
[54
1175]
counsel];
(1992)
to ineffectiveness of trial
In re
If a state
convicted criminals a
provides
first
the federal
right,
appeal
constitutional
(fair
of due
guarantees
process
procedure)
equal protec
tion (equality among litigants)10
that state to
require
provide appellate
1,
counsel for
(1989)
defendants.
indigent
(Murray v. Giarratano
492 U.S.
7
2765, 2768-2769,
S.Ct.
L.Ed.2d
106
v.
(Murray); Douglas
[109
1]
Califor
nia,
circumstances,
353.)
372
U.S.
Under such
due process requires
that an appellate
the state
attorney appointed by
provide constitutionally
387,
legal
(Evitts
(1985)
effective
assistance.
v. Lucey
469 U.S.
396 [105
830, 836,
S.Ct.
821].)
83 L.Ed.2d
Our
has
for
Legislature
provided generally
have,
(§ 1240.1),
counsel for
appointment
and we
indigents
in the
held a criminal defendant
past,
is
to effective
guaranteed
right
(See,
on
legal representation
(1974)
v.
11 Cal.3d
appeal.
e.g., People
Lang
134,
9,
192,
142
393];
520 P.2d
In
(1970)
re Smith
3 Cal.3d
Cal.Rptr.
[113
1,
969];
202-203
474 P.2d
but
(1983)
see Jones v. Barnes
463
Cal.Rptr.
[90
3308,
U.S. 745
S.Ct.
77 L.Ed.2d
counsel need not raise
[appellate
[103
987]
585,
891,
(1956)
v. Illinois
all 466 U.S. Washington nonfrivolous claims Strickland v. appeal]; 2052, 2064-2069, for 80 L.Ed.2d 687-696 S.Ct. 674] [relief [104 trial showing ineffective assistance of requires prejudice].) thus to maintain a basic level requires attorney law Although client direct when in a criminal competence professional representing abandonment appeal, respondent argues petitioner’s court-appointed cannot attorney during corpus investigation period postverdict constitute cause for of issues in cites decisions of the United States present petition. support, respondent no Court a criminal defendant federal constitutional Supreme holding enjoys to the assistance of counsel in right mounting discretionary state-appointed final criminal As we challenge judgment. explain, authority irrelevant. is correct the federal Constitution does not
Respondent
stating
guaran
tee
of counsel for
review
such
discretionary
appointment
proceedings,
(Coleman
(1991)
state
501 U.S.
Thompson
v.
corpus proceedings.
2546, 2566-2567,
(Coleman);
115
752-754
S.Ct.
L.Ed.2d
[111
640]
2769]; Pennsylvania
492
at
7-8
S.Ct. at
v.
Murray, supra,
pp.
U.S.
[109
Ross,
539];
L.Ed.2d
see
Finley (1987)
Respondent
the
of counsel in state habeas
assistance
right
corpus proceedings,
such
has no
to the effective assistance of
counsel.
defendant necessarily
right
This, indeed,
at
(Coleman,
is
federal rule.
501 U.S.
p.
the prevailing
Torna,
2566],
455
586
at
v.
U.S.
Wainwright
S.Ct.
citing
[111
review,
right
attorney’s
no
to counsel for
being
discretionary appellate
[there
not
ineffective assistance of coun
failure to file a
could
be
timely petition
676-678;
sel];
1994)
v.
(9th
v.
Cir.
18 F.3d
Odle
Wood
Campbell
(N.D.Cal. 1995)
1433-1434.)
Concluding
F.Supp.
Calderon
has no federal constitutional
asserts that if
argument, respondent
habeas
of counsel for state
proceedings,
to effective assistance
right
corpus
for
should not constitute
cause
similarly
good
then abandonment
filing.
however,
of whether or not a criminal defendant enjoys
Irrespective,
Constitution,
a matter of due
counsel as
under the federal
right,
choose,
law,
a state
as a matter of state
may
process
equal protection,
an
to assist a death row
attorney
appoint
prisoner
investigating, preparing
for a writ of habeas
If a state thus chooses to
filing
corpus.
an
for that
the absence of a federal constitutional
appoint
attorney
purpose,
to the
not
right
does
this court to tolerate abandonment
appointment
obligate
defendant
capital
attorney. Consequently, notwithstanding
law,
above-stated rule of federal constitutional
this court
nothing prohibits
from
(or inaction)
counsel’s actions
when evalu-
considering
corpus
whether,
under
ating
policy
Court
cause
for
exists
for a writ of habeas
after a
California,
of counsel to assist
defendants11 to
appointment
capital
and file
for writs of
prepare
has
been this
petitions
long
court’s
We first
practice.
announced this
in In re Anderson
practice
117],
This memorialized in three practice currently XV A of places. part the Internal Practices and Procedures Operating California Supreme (hereafter matters, Court Practices) Internal states: “In criminal Operating court, a verified or certified statement upon indigency, acting through Office, the Clerk’s will an for a in the appoint attorney party following instances: ftQ . . . 2. In a automatic pending and/or related state appeal ft[] . . . (Italics added.) Part B proceedings.” XV of the Internal Practices continues: “At Operating or after the time the court appoints counsel to represent indigent direct appellant appeal, court also shall to appoint habeas . . . counsel each indigent offer *19 (Italics capital appellant.” added.) Part C the XV of Internal Operating Practices on to goes that this court maintains an explain “Automatic Appeals Monitor” who is for the court in responsible assisting available locating for and attorneys XV D sets forth the appointment, manner in which part such counsel are appointed compensated. (Clark, analogous provision 11No prisoners subject supra, exists for not to the death penalty 783), case, although 5 Cal.4th at once an order to noncapital show cause issues in a relief,
indicating prima the has made a showing facie of entitlement to “the (id. 780). appointment by of counsel is demanded process due concerns” at p. law, to of counsel for A defendant’s under state right, appointment capital the Court Policies. state also finds voice in proceedings Supreme collateral filed, At should have been the time habeas corpus petition in cases of counsel capital standard 1-1 policy part: “Appellate provided the of a a factual and for duty investigate legal grounds filing shall have to Policies, a writ habeas Ct. (Supreme for of corpus.” policy clear, 1-1, 6, 1989.)12 3 thus made at least as former std. June Policy adopted 6, 1989, to counsel cases appointed capital of June that we expected then, a for a of and if the for writ habeas grounds corpus investigate (Robbins, and file a warranted the to investigation, prepare petition. 808.) 18 Cal.4th at Third, most the that has recently, Legislature provided “[t]he to all to Court offer to counsel state represent prisoners subject shall appoint . . . .” a sentence for of state postconviction proceedings capital purposes Code, (Gov. 68662.) this statute was not in effect when Although petition- § for a er’s and filed a petition should have attorney investigated appointed conclu- the enactment underscores our writ of habeas Legislature’s corpus, counsel to capital sion that state of requires represent law appointment defendants postconviction proceedings. “Appellate full: February pertinent 12As the now states in amended standard detailed, and capital computerized take maintain understandable counsel in a case shall and detailed list of meritorious transcript compile potentially notes and shall and maintain a addition, appellate come attention. In if corpus appellate habeas issues that have counsel’s corpus separate until counsel is representation, does not include habeas appointment counsel’s that comes to the purpose, appellate preserve counsel shall evidence appears potential corpus to a habeas appellate attention of counsel if evidence relevant (here clemency habeas investigation. separate ‘post-conviction’ corpus/executive If counsel) corpus corpus’ appointed, appellate is counsel shall deliver habeas after ‘habeas issues, potentially corpus copies of meritorious habeas copies the list notes, investiga potential corpus a habeas any preserved relevant to transcript evidence tion, transcript Appellate list and notes as warranted. update and thereafter shall issues corpus habeas counsel to facilitate cooperatively consult and work with counsel shall with (if warranted) corpus timely timely filing habeas investigation, preparation petition by habeas counsel. legal duty investigate shall factual “Habeas counsel in case have duty investigate corpus. The grounds for a writ grounds for that come to counsel’s investigating meritorious relief potentially
limited to reviewing potentially list of meritorious appellate the course of counsel’s attention in counsel, record, issues, trial appellate transcript prepared appellate *20 sum, state In does not this to although require federal Constitution death in habeas counsel to row state appoint indigent prisoners represent 613, Anderson, (ii) re court’s (i) In 69 Cal.2d this supra, corpus proceedings, Practices, (iii) own Court Internal 3 of Operating policy (iv) section all such now Government Code require law, The is a matter state not federal constitutional appointment. question law, court, and the absence a federal does not under right prevent law, state from abandonment as for the considering good counsel’s cause
3. Counsel Cause by Delay Abandonment Constitutes Good To reiterate: We direct appointed represent appeal petitioner established, and in habeas and this we have corpus proceedings, attorney, abandoned sometime petitioner during postconviction stage pro- be ceedings. State law requires appointed capital prisoners remedies; seeking state the absence of pursue postconviction corollary under the federal right Constitution is no to this court’s consid- impediment eration of abandonment as cause for the filing state habeas We turn to corpus now whether counsel’s abandonment petition. constitutes good cause under state law.
We have recognized (or inactions) that actions previously counsel’s prior bemay relevant to the rules that affect proper application procedural Clark, Thus, the availability of relief on habeas Cal.4th corpus. supra, 5 750, the filed a successive for a writ of corpus, thereby at least violating, facially, rule successive procedural prohibiting 767-768; (Id. petitions. re pp. 33 Cal.2d 546-547 Horowitz 513].) P.2d We in Clark the federal rule acknowledged holding no counsel) Sixth Amendment (due or Fourteenth Amendment (right process) right counsel exists for state habeas Nev- proceedings. ertheless, circumstances, limited explained may consideration “[i]n be given to claim that prior habeas counsel did not competently represent a An petitioner. defendant is entitled due imprisoned process courts, reasonable access to the and to the assistance of counsel if counsel is (5 to ensure that access . . necessary added.) . .” Cal.4th at p. italics Coleman, After Murray, 492 U.S. citing 501 U.S. Clark continues: whether a “Regardless constitutional to counsel right exists, a who represented is counsel when writ petition for is ahas right assume and is competent filed If, therefore, all presenting meritorious claims. [Citations.] fl[] counsel failed to afford ain adequate representation prior may be application, explanation justification failure offered *21 need, added, (Clark, under- to another italics petition.” supra, p. file italics in scoring original.) denotes clear,
As is tension the federal cases Clark the between acknowledged to counsel for state habeas finding no constitutional right appointed Coleman, 722; (see, U.S. e.g., supra, Murray, supra, proceedings court, 1) the such counsel. Clark appoints U.S. and which practice linked; are a resolved the tension these two not recognizing concepts has entitled on that attorney who is prisoner appointed rely and, claims conduct a reasonable if viable investigation appropriate, present in a so on successive or seriatim as to avoid the single petition prohibition be offered in “may Clark concludes the failure do so attorney’s petitions. (Clark, 780.) In other 5 Cal.4th at justification.” supra, explanation words, (or inactions) that in Clark the actions recognized we appointed rule succes- against relevant to whether the deciding procedural are sive habeas corpus petitions applicable. Clark, where, here, with we find
Consistent failing his client period, counsel abandons or her during postconviction a if so and file the facts investigation conduct reasonable warrant, that circumstance also be offered in explanation justifi “may cation” after for a state necessity corpus petition other (Clark, 780.)13 5 Cal.4th at conclusion Any substantial delay. This court would that we scenario: following potential require accept defendant in postconviction attorney represent appoints Practices, (Internal including collateral proceedings Operating proceedings, (id., for his her A.2), legal pt. XV or work attorney pt. compensates D; Counsel Payment XV see also Guidelines Appointed Representing It later Court). in the Criminal California Indigent Appellants his or client. has abandoned her develops attorney court-appointed he has a falsely legal as the confident prisoner, professional Time passes interests, waits for news. The actively prisoner representative protecting abandonment of the case and secures substitute learns of counsel’s finally files, for, habeas corpus counsel. New counsel investigates grounds time, first refuse to consider merits for the we whereupon justifications presentation of claims indi 13Normally would evaluate knew, know, is, have of the facts vidually, or counsel should based when id., 21; Robbins, p.at fn. but see generally, claim. underlying each Kennard, J.).) (cone. prior Because counsel’s abandonment pp. opn. & dis. 820-821 claims, in this ability any and all of his we need not raise necessarily affected have raised claim raised in the could been case whether individual determine earlier. filed claims14 no the prisoner—was because petition—through fault after a substantial delay. *22 though
The interest in the of its criminal finality judgments, strong, state’s harsh, result. does not that this we require accept incongruous, Robbins, 18 Cal.4th at fn. 22 General’s [rejecting Attorney supra, p. a the state’s interest to argument finality outweighs prisoner’s right claim, a of he neither nor reason- which knew present delayed grounds earlier].) should This is that abandon- ably have known because recognizing ment counsel constitutes cause for would not itself a by delay upset good final but a would allow habeas have judgment, corpus petitioner simply short, his or her considered their substantive claims on merits. have his in court and not be counsel’s petitioner will will day penalized inaction. we should not con-
Despite authority, strenuously argues respondent cause, (or sider lack prior thereof) counsel’s efforts when good determining because to do so “would defeat procedural purpose establishing default, If requirements. any whether volitional or inadvertent procedural counsel, . . . could be excused ineffectiveness of then the by alleging would rule exceptions swallow the .... Procedural default be an would and the rules empty concept, for procedural petitions, with along their underlying fairness resolution of purposes prompt claims, legitimate would be meaningless.”
We share concern with the respondent’s our rules. integrity procedural context, however, In the To present overstates the case. respondent begin with, our conclusion that counsel’s abandonment is a factor relevant prior when whether a determining good has shown cause under 3 policy Court Policies filed after a Supreme delay substantial mean, contends, does not as “any will condone respondent proce default, added.) dural whether (Italics volitional or To the inadvertent.” we reiterate that court contrary, has never condoned abusive writ “[t]his or practice (Clark, collateral attacks on a final judgment” supra, repetitious 769), Cal.4th at and “habeas is an p. extraordinary remedy ‘was 14Absent, course, the presence involving exceptions. of claims one of the four Clark (Clark, 797-798.) supra, pp. 5 Cal.4th at Respondent exceptions adequate also contends that these those provide relief to enough defendants been Although admittedly unfortunate to have abandoned counsel. that, reason, provide four Clark exceptions window those claims for whatever were not earlier, properly presented exceptions showing good are no substitute for a cause under our exceptions only timeliness rules. Under the Court are relevant after good justify delay determination has been made cause does not substantial presentation of claims. but to embarrassing
not created for
or
defeating
justice,
purpose
”
(Robbins,
it’
In re
18 Cal.4th at
promote
supra,
p.
quoting
Alpine
1500]). This
(1928) 203 Cal.
P.
58 A.L.R.
court has long
a habeas
justify
present
substantial
required
Swain,
765;
(Clark,
at
In re
issues
the court
Cal.2d
ing
supra,
p.
supra,
302, 304),
can
alone.
failure
do so
lead
denial
that ground
pp.
sufficient,
it
for a
argues,
Nor is
respondent
corpus petitioner
counsel abandoned him
her. We
simply allege prior
emphasize
burden is to
cause for
establish
832; Robbins,
780.)
Although deny argues respondent alone, reach- grounds belated habeas on without procedural merits, to the abandonment attorney’s the when the is attributable delay ing reiterate this harsh of his or her client the we during postconviction period, ensure the of this criminal result is not the need to state’s by finality justified Robbins, 22.) Recognizing 18 Cal.4th at fn. judgments.15 a in whether determining counsel’s abandonment is relevant factor prior a in of claims delay a has shown cause to good justify goal[]” necessary “institutional is this result to assure attainment the 15Neither (Robbins, supra, maintaining integrity appeal corpus process.” and habeas “the of our 1.) requirements Although the enforcement of timeliness imposition fn. Cal.4th litigation “salutary effect” of challenges capital has indeed had for habeas (ibid.), the corpus claims” encouraging investigation and submission of habeas “prompt prisoner, by by punishing a abandoned integrity corpus process of our habeas is not furthered own, refusing petitioner’s first habeas through by fault or her to consider no of his its merits. on will, circumstances, we overlook attrib- means simply appropriate utable to the abandonment counsel and evaluate the merits of prior by or legal claims. If a death row can show he she is prisoner trial, otherwise entitled to relief due an error in his or her cause of advanced in the State of California justice hardly court highest claim even consider the because the former refusing prisoner’s attorney abandoned the case at a him her time state law to be conducting required a reasonable issues of merit. investigation into potential short, for abusive reject contention that respondent’s potential writ on the justifies defendants conclusion the practice part capital abandonment counsel should no in the evaluation of by prior play part whether cause exists to excuse filed after a substantial good Instead, we conclude abandonment counsel is a relevant factor by prior in the determination of whether cause for in a delay exists particular case. deleterious effect caused Recognizing potential legal system not, an counsel’s abandonment of a client will claims, render respondent default ... nor “procedural empty concept,” will it convert rules procedural into applicable corpus petitions above, ritual. As meaningless bears the burden of explained cause, and this court will establishing good remain our vigilant enforcing *24 rules, timeliness taking corrective action when faced with abu- appropriate sive writ practices.
We therefore conclude counsel’s abandonment of consti- prior tutes cause for good the a writ of filing petition for habeas after a substantial This conclusion is not foreclosed federal by precedent Practices, and is consistent Internal fully with our 3 of the Operating policy and, Court Government Code Supreme section 68662 by analogy, (Clark, our own recent precedent 780). 5 Cal.4th at light In detrimental effect to the administration the of caused justice delayed by however, cases, presentation of claims in are legal capital warned that the abandonment of postconviction clients in the future will result in referral the State Bar for also may appropriate discipline, result in this court’s (see of unearned fees and seeking repayment expenses Payment Guidelines for Counsel Criminal Appointed Indigent Representing Court, in the Appellants California V Action pt. Upon [Court of Nonperformance Work and Reimbursement Fees Authorized Upon Counsel]). Withdrawal of Appointed
Conclusion sum, counsel, (1) In find: we this court to appointed by represent peti- client; tioner for (2) abandoned his postconviction essentially proceedings, 724 cause the substantial
such abandonment constitutes excusing for a of habeas that is attributable to counsel’s writ petition claims, abandonment; therefore, (3) none in petitioner’s presented untimely.16 should be denied as petition Accordingly, (“whether to the third in our order to show cause court response question determine such claim facie case must therefore whether states prima merits”), relief on the we conclude must all of for we evaluate determine for stated claims to whether he states a facie case relief on prima merits. Because confined our order to cause to the issues procedural show case, we do not address in this the substantive merits of opinion claims will be claims raised in a writ Such corpus. (1999) In re Hamilton 307 resolved order. separate Robbins, 600]; at P.2d Cal.4th Cal.Rptr.2d pp. [84 813-814; 838.) at Cal.4th Gallego, supra, is discharged.
The order to show cause J., Chin, J., C. concurred.
George,
MOSK, I concur in the result. J.
In this the court considers writ again proceeding, yet and the machinery condemned prisoner “procedural that decisions such as re Clark bars” relief against granting 855 P.2d have fabricated. More Cal.4th 750 Cal.Rptr.2d 729] Instead, it examine substance of itself. it does not accurately, bar, addresses, detail, and in “untime- length single namely, procedural *25 liness,” and “substantial delay” “good with its notions of incorporated end, cause, to the to it refuses cause.” the order show discharging claims on the determining the in favor of its dismiss untimely In that refusal I without reservation. join, fully merits. result, the I to concurrence in write noting my separately express
Beyond that, Clark s of procedural on the that agreement assumption machinery my and effi- both operates appropriately bars relief on against without submitting former counsel’s abandonment ciently, does, constitute cause” for “good any on his behalf and here may, such submitting just successor counsel in delay” eventually “substantial Indeed, “If It . . . itself this conclusion. states: Clark compels petition. Supplement Leave Timeliness' Alle light finding, petitioner’s 16In “Motion for of August denied as moot. gations,” filed this court on is
725 in a counsel failed to afford adequate prior representation be offered in of the may justification that failure explanation application, Clark, (In 780.) at A need to file another re 5 Cal.4th supra, p. petition.” fortiori, and hence if former failed to afford failed any representation that failure be offered in any may explanation to submit petition, .and an initial for successor counsel to submit need justification even after state, however,
I also write Clark’s machin- yet separately, again, of does not against bars relief in fact ery procedural either or efficiently. operate appropriately ‘ sure, To be the of habeas “was not for the “writ created purpose ”’ it[,]”
of defeating but when embarrassing justice, promote especially the of challenged (In confinement death. re pursuant judgment Robbins 18 Cal.4th P.2d 816 959 Cal.Rptr.2d 311] (conc. Mosk, J.).) of opn.
But that would of “only attainment such path guarantee justice a situation” is “the of ‘each’ habeas on its corpus ‘petition ‘examin[ation]’ facts’ own in order determine whether has alleged specific Robbins, him (In facts would entitle to relief.” re 18 Cal.4th at supra, p. Mosk, (conc. J.).) of opn. “ True, the the merits” that examination this sort entails ‘scrutiny’ “ ‘requires (In considerable resources . . . .’” re expense judicial Robbins, Mosk, J.).) at (conc. opn. such
But . . . much less than effort to does the invoke “[s]crutiny requires each bar. Or every even effort to invoke one such procedural Robbins, (In Mosk, (conc. bar.” re J.).) Cal.4th opn. For reader need consider two facts reflected herein. One is proof, only “many court has pages” had “devote to the single procedural (Ibid., omitted.) bar of . . .” untimeliness . italics The other is the substan that it tial time has had to take to resolve issue—the single underlying been filed more than four and petition having years one-half and the ago order to show cause issued more than three I cannot having years ago. fault all of any my whom I believe have colleagues, diligently proceeded *26 Rather, I must blame the bar of untimeliness itself. It is procedural properly. “ ” 817, Mosk, (Id. ‘indeterminate at at very (conc. core.’ fn. 3 p. opn. of [its] such, J.).) claim As “its application any given any given petition] may [or results, yield varying as reasonable differ as to whether the claim persons [or and, in has been without ‘substantial if petition] question presented delay’ But, not, yet, very cause’ exists for such worse its ‘good whether any of ‘substan- is as such discern sense meaning vague, attempt persons ” result, (Ibid.) in the best and most tial and cause.’ The of spite delay’ ‘good efforts, is, be, and and will continue to decision- arbitrary capricious honest and decisions. arbitrary making capricious rare “Because show themselves in conjunction principle pragmatism in confinement in this as all others in which” the challenged proceeding, Robbins, (In death re 18 Cal.4th at of pursuant judgment Mosk, J.)), in order show (conc. of I court join discharging opn. cause, of and in to dismiss the as favor refusing untimely its claims on the merits. determining
KENNARD, J., Dissenting. Werdegar’s Justice Concurring “[Wjhen an attorney representing states: ... opinion capital plurality fails, in the face of triggering defendant abandons client essentially facts, exist in order determine whether there to conduct investigation claims, such constitutes cause meritorious abandonment potentially claims by meritorious delay ante, (Plur. 701.) at I agree. counsel.” opn., subsequent however, conclusion that Dennis I with the further disagree, plurality’s counsel, Riordan, abandoned him highly competent appellate Therefore, issues for which this case. with exception abandonment, I would deny has other than grounds explained all claims in the for writ of habeas untimely. ante, 707-708), the duty pp. As plurality explains (plur. opn., has In the on a counsel in a case three phases. imposed counsel should review first after counsel’s directly phase, appointment, briefs, record, files, and should discuss trial counsel’s case and the appellate Regard- and the client. Ct. Policies case with trial counsel Death, Governing Standards Policy From ing Arising Judgments Cases of Counsel in Relation Petitions and Corpus Compensation Habeas Filing 3), 1-1.) investigative std. In the second (Policy phase, to Such Petitions as to which coun- claims counsel should potential is, facts,” to warrant further facts sufficient sel is aware “triggering facie state case prima not sufficient to necessarily but investigation, (In Cal.Rptr.2d re Gallego relief. funds from this court when 290].) Counsel should seek investigative P.2d Cases Regarding task. Ct. Policies achieve this necessary (Supreme Death, 2-8.3.) third 2-1 to In the stds. Policy From Judgments Arising all investigated potential after counsel has diligently or petition phase,
727 claims, file, if habeas counsel should prepare appropriate, all meritorious claims. petition presenting Here, the concludes that counsel abandoned petitioner plurality appellate at of to those the second this process: duty investigate potential step claims as to counsel facts. to the According which possesses triggering facts, of he failed to seek funds counsel was aware plurality, triggering yet view, from conduct my this court to an I In investigation. disagree. for writ of habeas offers no reason to believe result, further was aware of facts. As a he had no triggering duty investigate.
The furnishes a list of 10 claims in the for writ plurality laundry that, contends, of habeas it reveal of “potentially disturbing aspects ante, (Plur. trial . .” at petitioner’s 713.) . . The asserts opn., plurality claims, of triggering “many” facts these which the conve- plurality “were or exist niently neglects identify, either known to in the petitioner record,” and that these “would appellate claims have been certainly appear and, meritorious’ for of ‘potentially investigation if purposes appropriate, (Ibid., added.) court.” italics But in whether determining appellate counsel abandoned petitioner, petitioner’s knowledge triggering facts the only irrelevant: is whether counsel was aware of such question facts but failed to act them. list,
As to nine of ten these claims mentioned there is no plurality’s facts, evidence court before this was aware or that triggering Indeed, such facts these appear record.1 some of claims are appellate so patently unmeritorious that even if had known appellate facts, them, he could triggering have decided not to reasonably investigate because was to lead to an “issue merit.” investigation unlikely possible Death, Ct. (Supreme Policies Cases From Regarding Arising Judgments 2-4.2.) std. For Policy could example, competent attorney appellate no reasonably have found need to facts petitioner’s supporting contention that of the one committed misconduct a letter jurors reading by 24, 1998, August 1On Supplement filed a “Motion for Leave to Timeliness Allegations,” days requesting allegations bring 60 to amend timeliness them into compliance 311], Cal.Rptr.2d with In re P.2d Robbins 18 Cal.4th Gallego, supra, re both filed this court 3 before weeks motion. today plurality This court took no action on the denies it as moot. request, ante, (Plur. 16.) opn., majority agreed fn. Had a me that petitioner court with counsel, grant not has shown abandonment I would have this motion. voted Robbins, Kennard, (conc. J.) [stating In re at p. opn. Cal.4th that the “newly pleading requirements” applied clarified timeliness in Robbins should not be to bar pending petitions affording claims in to amend opportunity “without deficiencies”].) petition, possible, whenever to cure the
sent to the because conceivable misconduct by juror, arising petitioner from the decision read letter was invited juror’s by petitioner. v. Hines 938 P.2d People Cal.Rptr.2d claim, 388].) But the is 10th on which claim of abandonment petitioner’s based, careful more consideration. primarily requires he Petitioner contends that trial counsel was ineffective because failed to conduct counsel’s declaration adequate penalty investigation. Appellate after his had trial describes his one of associates met with counsel discovery, files, examined of had following: his counsel conducted “[T]rial had almost no He not interviewed wit- penalty investigation. any potential nesses about his life or his character. Nor had trial [petitioner’s] family, counsel obtained records and about background.” documents [petitioner’s] are of facts that
Ordinarily, these would precisely type triggering case, a necessitate counsel. thorough investigation by however, trial no insisted that his counsel should evidence petitioner present trial, his of because believed phase petitioner penalty sentence of life in without the of was prison possibility parole “unaccept- The trial able.” court went to ensure great lengths not to evidence was present knowing decision penalty phase intelligent: It it counsel to consult with petitioner appointed independent Dr. F.A. to determine whether petitioner’s psychiatrist, Matychowiak, decision not to evidence at the was a rational one. Dr. present penalty phase concluded that of Matychowiak above-average was petitioner intelligence, “free disease his he was or disorder that would any specific preclude able to reason or understand his circumstances or which would being present defense,” his in his and that decision preclude assisting intelligently own not to evidence at was “a matter of wisdom rather phase present penalty Thus, than in trial counsel’s of sanity.” any possible inadequacy penalty (because was irrelevant made phase investigation knowing trial), not to evidence at and this decision intelligent present penalty phase view, would, in court have denied by my request appellate conduct that should ordi- investigation funds to the type phase penalty Therefore, trial have been counsel. narily appellate performed did funds to conduct such an failing not abandon seek investigation. counsel, much a declaration in
The makes plurality which claims, while that he failed to conceding potential work rather than to the attributes this failure to of other pressures I do not that counsel’s worthy investigation. agree absence of information that he declaration establishes abandoned petitioner.
Counsel’s failure the absence of facts is acknowledge triggering hardly To state that he was aware of no information surprising. plainly worthy investigation against would counsel in put position arguing interests of his former client. In his inaction to of other attributing press business, issues, to a rather than lack of viable demon- merely *29 former is correct strating to his client. that a loyalty Although majority caseload cannot excuse an failure to his heavy attorney’s discharge habeas duties, “counsel has a habeas corpus to duty investigate potential claims if has only become aware of information that reason- might (Su- lead to actual facts ably meritorious claim.” supporting Death, Ct. Policies Cases From of preme Regarding Arising Judgments 3, 1-1.) std. Policy Petitioner fails to show that counsel was aware of any such information.
In of petitioner’s raised numerous federal consti- claims appeal, claims, tutional error. this Although court those were not rejected they indeed, substance; without two of this court justices were view that (See was entitled relief on of these v. grounds. People four 471, 537, (1990) Sanders 51 Cal.3d 530-538 P.2d 797 Cal.Rptr. [273 561] J., Mosk, Broussard, id., (dis. of J.); (dis. opn. joined by 538-547 of pp. opn. Broussard, J., Mosk, J.).) Because these had been joined by claims raised and rejected could file a in appeal, corpus petition federal court each of these claims without first raising Thus, in this court. counsel’s to file decision not a habeas appellate did corpus petition not of the chance to deprive petitioner litigate what were to be likely his claims in strongest federal court. With no facts that triggering would warrant additional habeas investigation, appellate counsel could have concluded reasonably overturn post-appeal attempts peti- tioner’s and convictions death sentence should focus on these claims.
Therefore, I would contention reject court should excuse in certain in his raising claims on the that his ground abandoned him.
BROWN, J., Concurring Dissenting. Berra once—or more As Yogi “ once—said, than ‘You’ve careful got very be if don’t know where you ” al., are (Araiza because not there.’ et The you going, you might get 746, 697, omitted; (1997) Berra Jurisprudence 46 L.J. fn. cf. Yogi Emory of 1084, 301, (1999) v. People 19 Cal.4th 1105 Cal.Rptr.2d 969 [81 Mendez ‘ ’ Brown, (conc. J.) ”].) P.2d “It’s again.” vu all over opn. déjá 146] [“ I continue to the to adhere views in and dissent my concurring expressed ing Gallego (1998) In re 18 Cal.4th 842-853 opinion Cal.Rptr.2d [77 730 Mendez, P.2d also v. 19 Cal.4th (Gallego). supra, People 959 290] Brown, (conc. J.) thousands more opn. upon [“Thousands
words, standard.”].) no closer to a As with Gallego, still workable (1998) and In re Cal.4th Cal.Rptr.2d 18 Cal.4th 153, Robbins 311], efforts are “ill-advised and today’s 959 P.2d counterproductive hurdles, , each riddled with . . . a Byzantine procedural creating system their only and fact-intensive exceptions qualifications, underminef] [which] (Gallego, intended purpose integrity judgments, finality, comity].” [of Brown, (conc, J.).) Even the 18 Cal.4th at dis. opn. has come these recognize clarify General Attorney attempts are at the intent of bars. timeliness standards with cross-purposes procedural set forth At oral he the court stand argument, urged principles 729], and reject 855 P.2d Cal.Rptr.2d re Clark 750 [21 cause” and “substantial “good claims without into untimely parsing inquiry abstractions, are because meritorious claims truly delay” preserved *30 (Id. 797-798.) the at circumstance under Clark exceptions. pp. the all claims on deny solely
I would order to show cause discharge has the merits without consideration of whether dem- preliminary in the petition. onstrated cause” “substantial “good any delay” presenting determinations no on the rel- I express majority’s regarding opinion acts or evance counsel’s omissions.
BAXTER, dissent. I respectfully J. 1998, our in effect counsel
Under written between 1989 policies at defendant on indigent appeal time represent capital appointed habeas represen- had the additional undertake specific obligation corpus as Ct. Policies Cases From Arising Judg- tation well. (Supreme Regarding 3, 1-1.) The (Policies), former std. Policies instruct policy ments Death must conduct a investigation that habeas counsel capital corpus prompt claims, then such claims with- meritorious habeas present potentially i.e., after the facts within a reasonable time delay, supporting out substantial 1-1, (Policies, 1-1.2.) If the or should have been known. stds. petition’s were standard, barred they may are under this be as substantially claims delayed (id., 1-3) cause “sufficient untimely good std. unless the establishes 1-2, added).1 (id., std. italics delay to justify” hand, contradict these clear On the one they The now plurality principles. case, 1994, indeed in filed in November was find that this 153, (Robbins), Cal.Rptr.2d P.2d we 18 Cal.4th 311] 1In In re Robbins 770 [77 presenting in might “justify” delay substantial example one of circumstances that provided claims, noted, presentation of piecemeal we in order to avoid the corpus. claims on habeas As developed claims might already of some good postpone cause have (Id., ongoing. claims was investigation a bona of still other meritorious while fide ante, (Plur. 705.) substantial That after a “presented delay.” opn., 1981, crimes occurred determination The indisputable. appears death was rendered in 1982. judgment January appointed Dennis Riordan as We decided petitioner’s appeal. counsel of record automatic and Riordan thereafter remained appeal clear, until he was relieved in June As the make 1994. plurality duties Riordan no later than June when our devolved upon effect. Policies went into Yet aside from confidential filing request toward the funds October Riordan did inves- investigation nothing tigation The current fails show petition. claims now neither were should been known in time to nor have proffered Robbins, them at earlier some Riordan’s tenure. present point during 770, 780.) Nonetheless, hold under our Riordan’s “aban- plurality donment” of duties on is itself cause for the The make thus hold our Policies plurality very creation its own excuse. Under the analysis, plurality’s claims in fashion pursue capital timely can prevent untimeliness from the finding by walking duty simply away action prompt imposed appointment.
Try they may, cannot avoid the mischievous conundrum plurality created If our holding. Policies allow counsel to create timeliness by *31 it, ignoring the of itself requirement timeliness loses all meaning.
The the of our plurality acknowledge timeliness Policies for importance habeas These vindicate the corpus petitions. policies societal strong interest that a criminal valid become final and be carried out. judgment They abuse writ. And our discourage serve own institutional concerns they concede, with the of our docket. The management also as plurality they must, that a condemned no federal prisoner right has constitutional to legal assistance, otherwise, in the diligent investigation Nonetheless, first for habeas the advance several corpus. plurality “abandonment,” reasons we must excuse why caused counsel’s must consider on the merits all claims raised thus None delayed. of these reasons are persuasive.
First, the
reason that insofar as California has elected to afford
plurality
assistance to condemned
our timeliness
appointed
prisoners,
Policies do not
us to tolerate the “abandonment” of
require
duty by ap-
vein,
counsel. In a related
pointed
insist that
plurality
by “abandoning”
805-806;
750, 767-770,
In re
(1993)
Clark
atpp.
111 [21
Cal.Rptr.2d
see also
(Clark).)
The of these theories one rejected ominous each is premise specifically i.e., federal that a constitutional has the right purposes, capital prisoner (Coleman assistance counsel on v. Thompson corpus. effective 640]; (1991) 501 U.S. S.Ct. 115 L.Ed.2d 752-754 Wain [111 v. wright (per Torna U.S. 586 S.Ct. L.Ed.2d 475] course, curiam).) Of concede the of a federal constitu absence plurality tional also refrain from such under right, they entitlement finding any Instead, the California this court’s they Constitution. insinuate because law, state call now for the policy, statutory provision counsel to a minimal prisoners, guaranty indigent capital assistance is competent implied. view, if
Even there were a kernel of abstract in this its logic application timeliness in the This is derogation of our standards extreme. misguided because, law, in the of death more often world upside-down penalty than his client by avoiding hurts helps pursuit postconviction prompt best in his remedies. Circumstances dictate that counsel’s course usually interest condemned client’s is to do until action becomes nothing absolutely necessary. out,
As has defendants challenge Justice Kennard who pointed “[m]ost of habeas criminal convictions means of a writ collaterally by are their in a who are sentence institution. serving penal prisoners gives strong expedite The release them incentive hope early *32 have little or to usually nothing gain by habeas petition, they relief, the seeking the But inmates on death row habeas delaying process. other have not They, begun situation otherwise. unlike prisoners, yet a habeas by ‘serve’ their sentence of death. successful Although petition in the form incarcerated defendant immediate benefits capital may produce sentence, retrial, a final release reduction court’s of from or of prison, last barrier to of all habeas the rejection judicial issues removes generally of during execution. Because courts execution stays pendency may grant death sentence seek may of habeas a facing corpus proceedings, prisoners are finally that such never by their lives prolong ensuring proceedings Thus, of have an incentive to assertion concluded. death row inmates
733 (Clark, is not shared other by supra, claims that corpus prisoners.” 750, Kennard, J.).) (conc. & dis. of opn. Cal.4th followed an all-too- case illustrates Events here starkly point. This older As plurality familiar our matters. pattern among capital explain, Policies became in June affirmed death petitioner’s our effective 1989. We on in and the United States September judgment appeal Riordan, as denied May Court certiorari in 1991. petitioner’s file a writ of habeas this “did not for a throughout period, petition Thereafter, court. obtained from the court an order People superior ([Pen. Code,] 1227.) execution. Petitioner success- authorizing petitioner’s § for a of moved federal court fully stay appointment proceedings counsel. filed a a new Newly subsequently appointed of (Sanders writ in federal court on December v. 1993. CV-F-92-5471-REC-P.) After the moved Vasquez, successfully People remedies, dismiss for failure exhaust state filed for a writ of habeas with on November this court 1994.” ante, (Plur. 702.) at opn.,
Riordan, one of this state’s condemned leading representing specialists denies his inaction had tactical prisoners, vehemently Yet purpose. set, doing until an execution date was aside nothing then while new stepping court, counsel obtained a federal stay federal maneuvered in Riordan actually his death row client the bought most commodities— precious execution, He time. not forestalled scheduled but also only substantially the moment which at final claims postponed rejection petitioner’s remove would them as an obstacle to the death sentence.2 pending cases, concerns, isIt such just have informed our unique capital timeliness which define specifically obligation all present meritorious claims without substantial The eviscerate the delay. plurality Policies’ failure concluding very counsel’s to follow these purposes by Clark, course, delayed as noted Kennard in judicial 2Of Justice of actual finding merit in one or more of the might petition’s postpone claims moment (Id., retrial, (cone. “release from at prison, reduction of sentence.” & dis. Kennard, execution, J.).) opn. possible But where alternative to success is certain such weigh strongly tactical incentives still toward Moreover, provided important Riordan’s inaction has another tactical client with By our own ensuring impose benefit. thus will not bar of procedural untimeliness merits, all, claims, claims, against reject the petition’s solely will but those if deprived procedural against has also possible Riordan the Director Corrections of a defense Thompson, (See, petition. claims Coleman e.g., identical raised in a later v. federal *33 barring corpus U.S. 729-730 S.Ct. consideration 2554] federal [rule rejected by independent procedural grounds].) claims state and adequate court on state excuse for the tardiness resulting petition
clear rules is its own habeas corpus.3 a for its own sake is not are careful to admonish that delay
The plurality “aban- future cases of tactic. that we will They report permissible “wam[]” unearned fees to the State Bar and also seek may recoup donment” ante, but 723.) These are (Plur. highly at steps appropriate, expenses. opn., p. dereliction as or not we also counsel’s accepted would be so whether they and use of these sanctions to excuse untimeliness. The availability grounds tolerate counsel’s omissions. On alone be that we do not should ample proof hand, excuses the delayed presen- that “abandonment” holding the other undermine seriously a for habeas tation of petition corpus, plurality deter counsel dedicated to pro- that the sanctions describe will they hope of their condemned clients. lives longing this, to resolve the insist their result is necessary all the plurality
Despite
criminal
desire for
of its
finality
judgments
“tension” between “society’s
of the crimes”
is
being
actually guilty
its insistence
person
punished
ante,
“a
704),
the writ of habeas
at
and to preserve
(plur. opn.,
obtained
their convictions were
final
for prisoners
prove
possibility
{ibid..).
not the case. Our existing capital
Such is
unjustly”
interests,
assur-
and they provide ample
rules
balance
already
competing
innocence,
will
or of fundamental
injustice,
ance that meritorious claims of
whenever
be
for relief
habeas corpus
presented.
grounds
pursue efforts toward a first
finding
counsel’s entire failure to
3In
delay,
plurality make much of
petition’s
corpus petition should excuse
Clark,
suggested that counsel’s incom
There we
certain
But even after counsel has been our timeliness Policies appointed, impose no absolute deadline or limitations for the of claims. period Instead, time they begin to count from the delay only claim was or should have been discovered. And even when a claim is not with reason- presented that, able after it is still promptness if there is a sound and timely acceptable claim that explanation justify delay. Any these standards timely by merits, be considered on may its unless claim is not cognizable simply habeas or some other bar For under the procedural applies. example, counsel, rubric of ineffective assistance of trial can timely assert almost form of any trial garden-variety error.
But when claims have been the state’s unduly delayed, countervailing interests in a final and enforceable and in both judgment, avoiding and retrial corpus litigation assume much underlying charges, greater Those interests importance. justify limits on petitioner’s right raise collateral challenges were because solely of counsel’s postponed inaction. here, however,
Even we have that the state’s interests are not recognized strong enough relief prevent a “fundamental mis- against carriage justice.” The establish such a fundamental petitioner may mis- (1) innocent, time carriage he is by showing (2) his trial actually included constitutional flaws so basic that an they irrational produced guilt verdict, (3) his trial was so penalty distorted that it factually produced verdict, irrational death he was sentenced to death under an invalid (Clark, law. 797-798.) fair,
This logical, well-established balance is rather than vindi- upset, cated, plurality’s new which misguided theory, threatens bedrock the timeliness underlying rules themselves. I remain unpersuaded that counsel’s “abandonment” of the duties our is an imposed by Policies excuse for the I resulting delay presenting corpus. would hold that has failed to show cause for the petition’s *35 so, and that its claims therefore delay, Having are done untimely.
I would order to show cause.4 discharge plurality’s holding duty 4While I dissent from the that habeas counsel’s “abandonment” of delayed petition, heartily cause for filing constitutes of a later habeas I seek, opinion passages plurality again, explain endorse those once the limitations obligation present counsel’s claims. As clear, plurality makes opinion counsel neither must nor should conduct “unfocused” ante, 707); investigation efforts (plur. opn., may at cease without if should, (ibid.); investigation reasonable discloses no meritorious claims in the ” “ advocacy,’ present only interest . . those that are potentially ‘effective . claims meritorious, (id., 8). rather than all claims fn. possible notes transcript prepared by appellate appellate record, files, briefs, trial counsel’s case existing and the and in the appellate defendant, course of reasonable making efforts to discuss the case with the trial counsel and counsel. The does not appellate duty investigate impose conduct, on counsel an obligation nor does it authorize the expenditure for, funds public unfocused as its investigation having object uncovering Instead, all factual for a possible bases collateral attack on the judgment. counsel has a duty investigate claims if potential only counsel has become aware of information that lead to might reasonably actual facts meritorious claim. supporting potentially All for writs petitions of habeas should be filed without substantial delay.”5 counsel, Should after a diligent review of trial counsel’s thorough files, briefs, the trial record and the conclude there are reasonably no facts that triggering would lead one to the existence of issues of suspect merit, counsel potential may legally cease his or her efforts at ethically that time. Basis, Guidelines for Fixed Fee Appointments, Optional Automatic and Related Habeas Appeals in the Califor- Corpus Proceedings Court, 2, 4, nia [if, guideline Dec. “all adopted after fU leads been potential have to the extent pursued possible given funding therefor,” counsel provided concludes “that no habeas bewill corpus petition filed,” counsel should file a confidential declaration with court to that exist, however, effect].) If triggering facts counsel must those If, grounds.6 after a diligent thorough investigation, reasonably concludes no relief, potentially meritorious exist for grounds collateral at that time may terminate his or her efforts. Counsel has no and file obligation for a prepare writ of habeas corpus raising If, hand, claims that are not even potentially meritorious. on the other counsel uncovers grounds meritorious support claim for
Notes
notes files, briefs, making reasonable existing and the and in course case counsel’s defendant, duty to appellate counsel. The trial counsel and efforts to discuss case with conduct, it obligation nor does authorize not on counsel an impose does for, uncovering having object all investigation as its public an unfocused expenditure of funds Instead, duty to counsel has a judgment. attack on possible factual bases for a collateral only if has become aware information corpus claims investigate potential habeas All meritorious claim. supporting facts might reasonably lead actual Ct. delay.” (Supreme filed should be without petitions for writs 1-1, 4, 1998.) supra, policy std. as amended Feb.