In re Reno ( 2012 )

Filed 10/31/12
IN THE SUPREME COURT OF CALIFORNIA
In re RENO )
) S124660
on Habeas Corpus. )
____________________________________)
ORDER MODIFYING OPINION AND
DENYING PETITION FOR REHEARING
THE COURT:
The opinion in this case, filed August 30, 2012, and appearing at 55 Cal.4th
428, is modified as follows:
In footnote 23 on pages 478-480 of 55 Cal.4th, delete the following lines:
―Claim No. 12 (same claim as claim No. 10); [¶] Claim No. 16 (admission of
Cornejo‘s perjurious testimony at the Evid. Code, § 402 hearing; Memro II, at
pp. 827-828);‖ and ―Claim No. 37 (Cornejo‘s testimony violated petitioner‘s Sixth
Amend. rights; Memro II, at pp. 827-828);‖
On page 500, second full paragraph on that page, delete the phrase ―and raise
the issue in the first petition‖ from the second sentence, which will then read as
follows: ―He contends that prior counsel‘s performance was ‗materially deficient‘ in
that he failed to adequately investigate the claim and discover triggering facts.‖`
This modification of the opinion does not affect the judgment.
The petition for rehearing is denied.
Filed 8/30/12 (unmodified version)
IN THE SUPREME COURT OF CALIFORNIA
In re RENO )
) S124660
on Habeas Corpus. )
____________________________________)
We issued an order to show cause in this case to address a problem that, over
time, has threatened to undermine the efficacy of the system for adjudicating petitions
for collateral relief in cases involving the death penalty. The cases of those
individuals sentenced to suffer the ultimate penalty in this state are automatically
appealed directly to this court, bypassing the intermediate Court of Appeal. (Cal.
Const., art. VI, § 11, subd. (a); Pen. Code, § 1239, subd. (b).) Should this court affirm
the judgment on direct appeal, such defendants are entitled to further challenge the
judgment by filing in this court a petition for a writ of habeas corpus.
In the event this court denies the habeas corpus petition, all (or nearly all)
capital defendants proceed to file a petition for a writ of habeas corpus in federal
district court. But because the federal courts require claims presented there to have
first been exhausted in state court (Baldwin v. Reese (2004) 541 U.S. 27, 29;1 see 28
1 ―Before seeking a federal writ of habeas corpus, a state prisoner must exhaust
available state remedies [citation], thereby giving the State the ‗ ― ‗opportunity to pass
upon and correct‘ alleged violations of its prisoners‘ federal rights.‖ ‘ Duncan v.
Henry, 513 U.S. 364, 365 (1995) (per curiam) . . . . To provide the State with the
necessary ‗opportunity,‘ the prisoner must ‗fairly present‘ his claim in each
appropriate state court (including a state supreme court with powers of discretionary
review), thereby alerting that court to the federal nature of the claim.‖ (Baldwin v.
Reese, supra, 541 U.S. at p. 29.)
U.S.C. § 2254(b)(1)(A)), capital defendants quite typically file a second habeas
corpus petition in this court to raise unexhausted claims. Third and fourth petitions
are not unknown. The potential for delay, as litigants bounce back and forth between
this court and the federal courts, is obvious.
The instant case involves the second habeas corpus petition filed in this court
by petitioner Reno.2 This ―exhaustion petition‖ (as such petitions are known because
they purport to seek to exhaust state claims in order to raise them in federal court) is
well over 500 pages long and by its own count raises 143 separate claims. Nearly all
of these claims raise legal issues that are, for a variety of reasons, not cognizable or
are procedurally barred in this renewed collateral attack. As we explain, in raising
claims already adjudicated by this court, and in raising new claims with no serious
attempt to justify why such claims were not raised on appeal or in Reno‘s first habeas
corpus petition, this petition exemplifies abusive writ practices that have become all
too common in successive habeas corpus petitions filed in this court. Such practices
justify denial of the petition without this court‘s passing on the substantive merits of
the abusive claims. Imposing financial sanctions on counsel, although a permissible
Interpreting title 28 United States Code section 2254, the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA), the United States Supreme Court
recently held that review under the act ―is limited to the record that was before the
state court that adjudicated the claim on the merits. Section 2254(d)(1) refers, in the
past tense, to a state-court adjudication that ‗resulted in‘ a decision that was contrary
to, or ‗involved‘ an unreasonable application of, established law. This backward-
looking language requires an examination of the state-court decision at the time it was
made. It follows that the record under review is limited to the record in existence at
that same time i.e., the record before the state court.‖ (Cullen v. Pinholster (2011)
563 U.S. ___, ___ [131 S.Ct. 1388, 1398].)
2 Petitioner was formerly known in this court as Harold Ray Memro. In
December 1994, the Marin County Superior Court granted petitioner‘s request to
change his name to ―Reno.‖
2
consequence for abusive writ practices, will not be imposed in this case but remains
an option in future cases.
We take this opportunity to establish some new ground rules for exhaustion
petitions in capital cases that will speed this court‘s consideration of them without
unfairly limiting petitioners from raising (and exhausting) justifiably new claims.
Therefore, we direct that, in future cases, although a petitioner sentenced to death will
still be able to file his or her initial habeas corpus petition with no limit as to length,
second and subsequent petitions will be limited to 50 pages (or 14,000 words if
produced on a computer), subject to a good cause exception.
Partly in reliance on suggestions made by the parties and amici curiae, we
adopt measures by which petitions may be streamlined, making preparation and
review of the petition simpler and more efficient. As explained in more detail below,
such petitions must clearly and frankly disclose: (a) what claims have been raised and
rejected before, and where (either on appeal or on habeas corpus, with appropriate
record and opinion citations); (b) what claims could have been raised before (e.g.,
because they are based on facts in the appellate record or were known at the time the
first habeas corpus petition was filed), and why they were not raised at an earlier time;
(c) what claims are truly new (that is, they have not previously been presented to this
court); and (d) which claims were deemed unexhausted by the federal court and are
raised for the purpose of exhaustion. This last disclosure must be supported by a copy
of the federal court‘s order. This background information need not be realleged or
described in detail, but can and should be placed in a table or chart not to exceed 10
pages (which will not count against the 50-page limit) accompanying the petition.
This chart will permit the court to determine at a glance which claims are repetitive
and which are newly alleged, and will allow us to more expeditiously evaluate the
claims in the petition. It is, moreover, improper to state new claims or theories for the
first time in the informal reply or traverse. The same is true for allegations explaining
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why a procedural bar is inapplicable; such allegations must appear in the petition
proper. In addition, the lack of investigative funds will no longer be routinely
accepted as an excuse to justify a delayed presentation of a claim. We add that
petitioners may cite and incorporate by reference prior briefing, petitions, appellate
transcripts, and opinions in the same case but no longer need to separately request
judicial notice of such matters, as this court routinely consults these documents when
evaluating exhaustion petitions. Thus, an argument raised in a prior appeal or habeas
corpus petition and reraised in a subsequent petition may be incorporated by reference
and need not be reargued (subject to the discussion, post).
Finally, in recognition of circumstances in which counsel wish to present
issues purely to exhaust remedies in compliance with a federal exhaustion order, a
petitioner may elect to submit for our consideration, in a table or chart and in a very
summary way, some or all of the claims deemed unexhausted by the federal court.
This summary presentation may take the form of a brief statement of the issue and
reasons procedural bars may not apply, and no presentation of this nature will be
considered to be an abuse of the writ.
I. Background
As we describe below, petitioner committed his crimes in 1976 and 1978. He
was tried and convicted of his crimes and sentenced to death. We reversed that first
conviction for legal error in 1985. Following his retrial (in which he was again
sentenced to death), we affirmed his conviction and sentence in 1995. We also denied
his first habeas corpus petition that same year. We consider here his second habeas
corpus petition.
A. The Crime
―A jogger found the bodies of Scott Fowler and Ralph Chavez, Jr., sprawled
178 feet apart near a pond in John Anson Ford Park in Bell Gardens early on the
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morning of July 26, 1976. Fowler was 12 years old, Chavez 10. Each victim‘s throat
had been cut with a sharp instrument. Witnesses testified that the boys had been
fishing for hours the day before, staying well into the evening. They were placing
their catch in a plastic gallon-size milk jug with the top excised so as to keep the
handle intact. The police found the jug nearby, along with bologna wrappers, which
were evidence of the boys‘ picnic. A trail of blood suggested that Chavez had tried to
run after the attack. The medical examiner fixed the time of death at about midnight.
―Carl Carter, Jr. [(hereafter Carl Jr.)], was reported missing in South Gate on
October 22, 1978. He was seven years old. His body was found some five days later
amidst dense scrub alongside a road. He had been strangled to death—a cord was still
bound around his neck. An enzyme found in his anal area suggested an attempt at
sodomy.‖ (People v. Memro (1995) 11 Cal.4th 786, 811 (Memro II).)
The police became aware of petitioner Reno when they were interviewing
people who might know where Carl Jr. could be found. When officers went to
petitioner‘s apartment, he introduced himself by saying, ― ‗ ―I knew you were coming
. . . . I[‘v]e been in Atascadero [State Prison] . . . .‖ ‘ ‖ (Memro II, supra, 11 Cal.4th
at p. 812.) Petitioner provided no useful information at that time, and the officers
returned to the Carter residence. While they were there, petitioner came over to drop
off a part for his Volkswagen with Carl Carter, Sr. (hereafter Carl. Sr.), who was a car
mechanic. Officer William Sims again asked petitioner where he had been and what
he might have seen near the time of Carl Jr.‘s disappearance. Petitioner said, ― ‗ ―I
remember now . . . .‖ ‘ ‖ (ibid.) and explained that, just before dark, he had come up
to the Carter residence to talk with Carl Sr. about working on his Volkswagen. Carl
Jr. was at the rear of the house and spoke briefly with petitioner. Carl Jr. then left
with petitioner to buy some soda. After hearing this story, Officer Sims arrested
petitioner for kidnapping.
5
Police interrogated petitioner three times that evening. At the third
interview, he confessed to killing Carl Jr. As petitioner explained, when Carl Jr.
said he wanted a soft drink, petitioner invited him into his car and drove to his
apartment, where he hoped to take some pictures of Carl Jr. in the nude. At one
point, however, Carl Jr. said he wanted to leave. This made petitioner angry. He
grabbed a clothesline lying on the nightstand, put it around Carl Jr.‘s neck, and
choked him. He then threw him on the bed, took off all his clothes but his shirt,
and taped his hands behind his back. According to petitioner, he then tried to
sodomize the child‘s dead body but was unsuccessful. Afterward, he wrapped
Carl Jr. in a blanket and dumped his body over the side of a rural road. The next
morning, after a troubled sleep, he went to work. (Memro II, supra, 11 Cal.4th at
pp. 812-813.)
At the interrogating officer‘s invitation to unburden himself further,
petitioner also confessed that about two years earlier he had visited John Anson
Ford Park in Bell Gardens to take pictures of young boys. Around dusk, he saw
two boys walking toward a pond with fishing poles. One of the boys, Scott, was
blond, White, and about 13 years old. His friend Ralph was Hispanic and about 12
years old. Petitioner lingered with the boys and thought about sexually molesting
Scott. Later, after Ralph had fallen asleep, Scott and petitioner walked to the other
side of the pond, where Scott said something to make petitioner angry. Petitioner
grabbed a knife out of his pocket, bent Scott backwards, and slit his throat. The
commotion apparently woke Ralph, who started screaming. Petitioner ran to the
other side of the pond, caught up with Ralph, and slit his throat as well. (Memro
II, supra, 11 Cal.4th at pp. 813-814.)
According to the interrogating officer, petitioner ― ‗started crying and
sobbing, and he said, ―Let‘s go find Carl, Jr.‘s, body.‖ ‘ ‖ (Memro II, supra,
11 Cal.4th at p. 814.) The police took petitioner to the area he had described and
6
found Carl Jr.‘s decomposing body with the cord still around his neck. (Id. at pp.
811, 814.)
Officers then went to petitioner‘s apartment, where they found a boy‘s
shoes, socks, and clothing in a suitcase underneath a workbench, as well as a
length of clothesline similar to that used to strangle Carl Jr. Police also found
sexually explicit magazines featuring unclothed young men and boys, and
hundreds of photographs of boys, including neighborhood children. (Memro II,
supra, 11 Cal.4th at p. 814.) The next day, petitioner spoke with an officer from
the Bell Gardens Police Department and repeated his confession to having killed
Scott Fowler and Ralph Chavez. (Id. at pp. 814-815.) At trial, petitioner
presented an alibi defense to the charges involving Fowler and Chavez and
attempted to show that two other men seen near or talking to the victims were the
perpetrators. (Id. at pp. 815-816.) He conceded he had killed Carl Jr. (Id. at
p. 816.) The jury convicted petitioner as charged and sentenced him to death.
B. Legal Proceedings
Petitioner‘s first judgment (convicting him of three murders and imposing the
death penalty) was reversed by this court for Pitchess error. (People v. Memro (1985)
38 Cal.3d 658 (Memro I); see Pitchess v. Superior Court (1974) 11 Cal.3d 531.) On
retrial in 1987, the jury convicted petitioner of two counts of first degree murder (Carl
Jr., Chavez) and one count of second degree murder (Fowler), found true a multiple-
murder special circumstance, and again returned a verdict of death. We affirmed
those convictions and the death sentence in November 1995 (Memro II, supra, 11
Cal.4th 786), and the United States Supreme Court subsequently denied a petition for
writ of certiorari (Memro v. California (1996) 519 U.S. 834).
Petitioner timely filed a petition for a writ of habeas corpus on January 19,
1995, his first such petition in this court. The petition raised 12 claims, with some
7
additional subclaims. We summarily denied this petition in June of that same year.
(In re Memro on Habeas Corpus, S044437.) Our denial was solely on the merits; as
is our standard practice, the denial was by order with no opinion. (See generally
People v. Romero (1994) 8 Cal.4th 728, 737 [―If the court determines that the petition
does not state a prima facie case for relief or that the claims are all procedurally
barred, the court will deny the petition outright, such dispositions being commonly
referred to as ‗summary denials.‘ ‖]; Crittenden v. Ayers (9th Cir. 2010) 624 F.3d 943,
960 [a summary denial by the Cal. Supreme Ct. ―is a denial on the merits‖].) Unless
otherwise stated in the order, such summary denials indicate this court has considered
and rejected the merits of each claim raised. (In re Clark (1993) 5 Cal.4th 750, 769,
fn. 9; see Walker v. Martin (2011) 562 U.S. ___, ___ [131 S.Ct. 1120, 1124] [in
California, an order ―denying a petition without explanation or citation ordinarily
ranks as a disposition on the merits‖]; Harrington v. Richter (2011) 562 U.S. ___, ___
[131 S.Ct. 770, 784-785] [―When a federal claim has been presented to a state court
and the state court has denied relief, it may be presumed that the state court
adjudicated the claim on the merits in the absence of any indication or state-law
procedural principles to the contrary.‖].)
On September 8, 1998, petitioner filed a petition for a writ of habeas corpus in
federal district court, raising 74 claims for relief. (Reno v. Calderon, Warden, CV 96-
2768 (RT).) In 1999, that court struck ―many‖3 of the unexhausted claims from the
3 The petition for a writ of habeas corpus currently before us nowhere states
which claims were deemed unexhausted for federal purposes. The return merely
states ―many of the 74 grounds for relief‖ were stricken by the federal court, but does
not list which ones. The traverse similarly does not identify which claims were
deemed unexhausted by the federal court. We may surmise that not all of the 143
claims now raised were found to be unexhausted in federal court. From this we may
further infer that many of the 143 claims now raised were considered exhausted by the
federal court, raising the possibility that their re-presentation here, without a specific,
articulated, and justifiable reason for doing so, was done for purposes of delay. In the
future, as a judicially declared rule of criminal procedure, we require that such
8
federal petition, held the matter in abeyance, and directed petitioner to file a new
petition in state court, exhausting those claims that had not yet been presented to a
state court. Reno‘s federally appointed counsel did not do so and instead withdrew
from the case in 2001. In September 2002, this court appointed present counsel to
represent Reno.
On May 10, 2004, petitioner filed the present habeas corpus petition, his
second in this court. Far from the 12 claims he originally raised in this court in 1995,
the current petition raises 143 claims for relief,4 is 521 pages long, and is supported
by two volumes of exhibits. After receiving the People‘s informal response in May
2005 and petitioner‘s informal reply in February 2006 (Cal. Rules of Court, rule
8.385(b); People v. Romero, supra, 8 Cal.4th at p. 737 [court may request informal
response from petitioner‘s custodian]), we issued the following order in September
2010:
―The Secretary of the Department of Corrections and Rehabilitation is ordered
to show cause before this court, when the matter is placed on calendar, whether the
petition for writ of habeas corpus filed in this case should be considered an abuse of
the writ (In re Clark (1993) 5 Cal.4th 750, 769-770), for the following reasons:
―(1) For failure to allege sufficient facts indicating the claims in the petition are
timely or fall within an exception to the rule requiring timely presentation of claims
(In re Robbins (1998) 18 Cal.4th 770, 780-781; In re Clark, supra, 5 Cal.4th at pp.
797-798);
exhaustion petitions clearly and affirmatively allege which claims were deemed by
the federal court to be exhausted, and which were not. Such allegations must be
supported by ―reasonably available documentary evidence‖ (People v. Duvall (1995)
9 Cal.4th 464, 474), such as a copy of the district court‘s order.
4 In 2007, the federal district court temporarily lifted its stay to allow petitioner
to file a second amended petition in that court, increasing the claims raised from 74 to
143. The court then reimposed the stay.
9
―(2) For failure to allege sufficient facts indicating certain claims in the petition
are cognizable despite having been raised and rejected on appeal (In re Waltreus
(1965) 62 Cal.2d 218, 225; In re Harris (1993) 5 Cal.4th 813, 829-841);
‖(3) For failure to allege sufficient facts indicating certain claims in the petition
are cognizable despite the fact they could have been raised on appeal but were not (In
re Dixon (1953) 41 Cal.2d 756, 759; In re Harris, supra, 5 Cal.4th at pp. 829-841);
―(4) For failure to allege sufficient facts indicating certain claims in the petition
are cognizable despite having been raised and rejected in petitioner‘s first habeas
corpus proceeding, In re Memro on Habeas Corpus, S044437, petition denied June
28, 1995 (In re Miller (1941) 17 Cal.2d 734, 735);
―(5) For failure to allege sufficient facts indicating certain claims in the petition
are cognizable despite the fact they could have been raised in the first petition (In re
Clark, supra, 5 Cal.4th at pp. 774-775; In re Horowitz (1949) 33 Cal.2d 534, 546-
547);
―(6) For failure to allege sufficient facts indicating that claims of insufficient
evidence at trial to support a conviction are cognizable in a petition for a writ of
habeas corpus (In re Lindley (1947) 29 Cal.2d 709, 723);
―(7) For failure to allege sufficient facts indicating that claims based on the
Fourth Amendment are cognizable in a petition for a writ of habeas corpus (In re
Sterling (1965) 63 Cal.2d 486, 487-488; In re Sakarias (2005) 35 Cal.4th 140, 169);
and
―(8) For raising legal issues related to petitioner‘s first trial, when his
conviction and sentence resulting from that trial were reversed by this court (People v.
Memro (1985) 38 Cal.3d 658), absent any plausible explanation why such alleged
errors affected the fairness of his subsequent retrial.
―The return is to be served and filed in this court on or before October 16,
2010.
10
―The traverse is to be served and filed within 30 days after the return is filed.
―All discussion or briefing of the merits of any claim set forth in the petition is
deferred pending further order of this court.‖
The Secretary of the Department of Corrections and Rehabilitation, represented
by the Attorney General, thereafter filed a return, and petitioner filed his traverse.
(People v. Duvall, supra, 9 Cal.4th at pp. 475-477; see Cal. Rules of Court, rule
8.386.) Following oral argument on May 1, 2012, we directed the parties, and
interested amici curiae, to submit letter briefs addressing whether imposing financial
sanctions on counsel was an appropriate response for abuse of the writ, and whether
this court should impose page limits on exhaustion petitions.
II. Discussion
A. Habeas Corpus and Abuse of the Writ
The right to habeas corpus is guaranteed by the state Constitution and ―may not
be suspended unless required by public safety in cases of rebellion or invasion.‖ (Cal.
Const., art. I, § 11.)5 Frequently used to challenge criminal convictions already
affirmed on appeal, the writ of habeas corpus permits a person deprived of his or her
freedom, such as a prisoner, to bring before a court evidence from outside the trial or
appellate record, and often represents a prisoner‘s last chance to obtain judicial
review. ― ‗ ―[H]abeas corpus cuts through all forms and goes to the very tissue of the
structure. It comes in from the outside . . . and although every form may have been
preserved opens the inquiry whether they have been more than an empty shell.‖ ‘ ‖
(In re Harris, supra, 5 Cal.4th at p. 828, fn. 6, quoting Frank v. Mangum (1915) 237
U.S. 309, 346.) ―Historically, habeas corpus provided an avenue of relief for only
5 The United States Constitution has a similar provision. (U.S. Const., art. I, § 9,
cl. 2 [―The privilege of the writ of habeas corpus shall not be suspended, unless when
in cases of rebellion or invasion the public safety may require it.‖].)
11
those criminal defendants confined by a judgment of a court that lacked fundamental
jurisdiction, that is, jurisdiction over the person or subject matter‖ (Harris, at p. 836),
but that view has evolved in modern times and habeas corpus now ―permit[s] judicial
inquiry into a variety of constitutional and jurisdictional issues‖ (People v. Duvall,
supra, 9 Cal.4th at p. 476). ―Despite the substantive and procedural protections
afforded those accused of committing crimes, the basic charters governing our society
wisely hold open a final possibility for prisoners to prove their convictions were
obtained unjustly. [Citations.] A writ of ‗[h]abeas corpus may thus provide an
avenue of relief to those unjustly incarcerated when the normal method of relief—i.e.,
direct appeal—is inadequate.‘ ‖ (In re Sanders (1999) 21 Cal.4th 697, 703-704; see
In re Robbins, supra, 18 Cal.4th at p. 777 [―there may be matters that undermine the
validity of a judgment or the legality of a defendant‘s confinement or sentence, but
which are not apparent from the record on appeal‖ for which habeas corpus is
appropriate].)
Although habeas corpus thus acts as a ―safety valve‖ (see Ledewitz, Habeas
Corpus as a Safety Valve for Innocence (1990-1991) 18 N.Y.U. Rev. L. & Soc.
Change 415) or ―escape hatch‖ (Comment, Repetitive Post-Conviction Petitions
Alleging Ineffective Assistance of Counsel: Can the Pennsylvania Supreme Court
Tame the ―Monster‖? (1981-1982) 20 Duq. L.Rev. 237) for cases in which a criminal
trial has resulted in a miscarriage of justice despite the provision to the accused of
legal representation, a jury trial, and an appeal, this ―safety valve‖ role should not
obscure the fact that ―habeas corpus is an extraordinary, limited remedy against a
presumptively fair and valid final judgment‖ (People v. Gonzalez (1990) 51 Cal.3d
1179, 1260, italics added). Courts presume the correctness of a criminal judgment (In
re Lawley (2008) 42 Cal.4th 1231, 1240), for before the state may obtain such a
judgment, ―a defendant is afforded counsel and a panoply of procedural protections,
including state-funded investigation expenses, in order to ensure that the trial
12
proceedings provide a fair and full opportunity to assess the truth of the charges
against the defendant and the appropriate punishment‖ (In re Robbins, supra, 18
Cal.4th at p. 777). Following a conviction, the defendant has the right to an automatic
appeal, assisted by competent counsel. (Ibid.) If a criminal defendant has
unsuccessfully tested the state‘s evidence at trial and appeal and wishes to mount a
further, collateral attack, ― ‗all presumptions favor the truth, accuracy, and fairness of
the conviction and sentence; defendant thus must undertake the burden of overturning
them. Society‘s interest in the finality of criminal proceedings so demands, and due
process is not thereby offended.‘ ‖ (People v. Duvall, supra, 9 Cal.4th at p. 474,
quoting Gonzalez, at p. 1260.)
This limited nature of the writ of habeas corpus is appropriate because use of
the writ tends to undermine society‘s legitimate interest in the finality of its criminal
judgments, a point this court has emphasized many times. In In re Clark, supra, 5
Cal.4th at page 776, for example, we explained: ― ‗[T]he writ strikes at finality. One
of the law‘s very objects is the finality of its judgments. Neither innocence nor just
punishment can be vindicated until the final judgment is known. ―Without finality,
the criminal law is deprived of much of its deterrent effect.‖ [Citation.] And when a
habeas petitioner succeeds in obtaining a new trial, the ― ‗erosion of memory‘ and
‗dispersion of witnesses‘ that occur with the passage of time,‖ [citation], prejudice the
government and diminish the chances of a reliable criminal adjudication. . . .‖
(Quoting McCleskey v. Zant (1991) 499 U.S. 467, 491.) More recently, this court
opined that ―[o]ur cases have long emphasized that habeas corpus is an extraordinary
remedy ‗and that the availability of the writ properly must be tempered by the
necessity of giving due consideration to the interest of the public in the orderly and
reasonably prompt implementation of its laws and to the important public interest in
the finality of judgments.‘ ‖ (In re Morgan (2010) 50 Cal.4th 932, 944.)
13
―As one legal scholar put it: ‗A procedural system which permits an endless
repetition of inquiry into facts and law in a vain search for ultimate certitude implies a
lack of confidence about the possibilities of justice that cannot but war with the
effectiveness of the underlying substantive commands [punishing criminal acts]. . . .
There comes a point where a procedural system which leaves matters perpetually
open no longer reflects humane concern but merely anxiety and a desire for
immobility.‘ (Bator, Finality in Criminal Law and Federal Habeas Corpus for State
Prisoners (1963) 76 Harv. L.Rev. 441, 452–453.)‖ (In re Clark, supra, 5 Cal.4th at
p. 805.) ― ‗ ―No one, not criminal defendants, not the judicial system, not society as a
whole is benefited by a judgment providing a man shall tentatively go to jail today,
but tomorrow and every day thereafter his continued incarceration shall be subject to
fresh litigation.‖ ‘ ‖ (In re Harris, supra, 5 Cal.4th at p. 831, quoting Mackey v.
United States (1971) 401 U.S. 667, 691 (conc. & dis. opn. of Harlan, J.).)
Given the ample opportunities available to a criminal defendant to vindicate
statutory rights and constitutional guarantees, and consistent with the importance of
the finality of criminal judgments, this court has over time recognized certain rules
limiting the availability of habeas corpus relief. Sometimes called ―procedural bars‖
(see, e.g., In re Martinez (2009) 46 Cal.4th 945, 950, fn. 1; In re Lawley, supra, 42
Cal.4th at p. 1239; People v. Kelly (2006) 40 Cal.4th 106, 121; Jackson v. Roe (9th
Cir. 2005) 425 F.3d 654, 656, fn. 2), these rules require a petitioner mounting a
collateral attack on a final criminal judgment by way of habeas corpus to prosecute
his or her case without unreasonable delay, and to have first presented his or her
claims at trial and on appeal, if reasonably possible. Strict limits exist for claims not
raised in a litigant‘s first habeas corpus petition. These rules establish what the high
court, addressing a similar issue, described as ―a background norm of procedural
regularity binding on the petitioner‖ (McCleskey v. Zant, supra, 499 U.S. at p. 490),
and permit the resolution of legitimate claims in the fairest and most efficacious
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manner possible. Untimely claims, or claims already presented to this court and
resolved on the merits, are as a general matter barred from consideration. Claims
alleging the evidence was insufficient to convict, or that police violated a litigant‘s
Fourth Amendment rights, are not cognizable on habeas corpus for other,
nonprocedural reasons. These rules, essentially barriers to access deemed necessary
for institutional reasons, are of course subject to exceptions designed to ensure
fairness and orderly access to the courts, but the judicial machinery is structured to
allow one accused or convicted of a crime—in the vast majority of cases—to
vindicate his or her rights well before a postconviction, postappeal writ of habeas
corpus becomes necessary. Because a criminal defendant enjoys the right to
appointed trial counsel, to a jury trial, and to an appeal, the various procedural
limitations applicable to habeas corpus petitions are designed to ensure legitimate
claims are pressed early in the legal process, while leaving open a ―safety valve‖ for
those rare or unusual claims that could not reasonably have been raised at an earlier
time. The procedural rules applicable to habeas corpus petitions are thus ―a means of
protecting the integrity of our own appeal and habeas corpus process‖ (In re Robbins,
supra, 18 Cal.4th at p. 778, fn. 1, italics omitted) and vindicate ―the interest of the
public in the orderly and reasonably prompt implementation of its laws and to the
important public interest in the finality of judgments‖ (id. at p. 778). In short, our
procedural rules ―are necessary . . . to deter use of the writ to unjustifiably delay
implementation of the law . . . .‖ (In re Clark, supra, 5 Cal.4th at p. 764.)6
Insisting on the prompt presentation of legal claims, most normally at trial and
on appeal, but certainly by the time of the first habeas corpus petition, also works to
conserve scarce judicial resources, for collateral challenges to final criminal
judgments exact a heavy cost on the judiciary. ―Successive petitions . . . waste scarce
6 We discuss these procedural bars in more detail below.
15
judicial resources as the court must repeatedly review the record of the trial in order to
assess the merits of the petitioner‘s claims and assess the prejudicial impact of the
constitutional deprivation of which he complains.‖ (In re Clark, supra, 5 Cal.4th at
p. 770; cf. McCleskey v. Zant, supra, 499 U.S. at p. 491 [―Federal collateral litigation
places a heavy burden on scarce federal judicial resources, and threatens the capacity
of the system to resolve primary disputes.‖].) The United States Supreme Court has
recently recognized the heavy burden this court shoulders in reviewing the
―staggering number of habeas petitions each year‖ in noncapital cases. (Walker v.
Martin, supra, 562 U.S. at p. ___ [131 S.Ct. at pp. 1125-1126].) These concerns are
magnified in capital cases, where the appellate records typically are longer, the habeas
corpus petitions filed are more extensive, and the legal fees paid are substantially
higher than in noncapital cases. Repetitive petitions consume finite judicial resources,
and evaluating them delays this court from turning its attention to timely filed first
petitions that may raise an issue of potential merit. As Justice Robert Jackson once
observed when commenting on the ―flood[] of stale, frivolous and repetitious petitions
inundat[ing] the docket of the lower courts and swell[ing] our own‖: ―It must
prejudice the occasional meritorious application to be buried in a flood of worthless
ones. He who must search a haystack for a needle is likely to end up with the attitude
that the needle is not worth the search.‖ (Brown v. Allen (1953) 344 U.S. 443, 536,
537 (conc. opn. of Jackson, J.).)
With this background in mind, we conclude a petitioner‘s failure, in a second
or successive habeas corpus petition before this court, both to acknowledge the
limitations of habeas corpus as an avenue of collateral attack and to make a plausible
effort to explain why the claims raised are properly before the court, can be
considered an abuse of the writ process. In this way, habeas corpus is no different
from other types of civil writs that constitute extraordinary relief. (See People v. Kim
(2009) 45 Cal.4th 1078, 1094 [― ‗The writ of error coram nobis is not a catch-all by
16
which those convicted may litigate and relitigate the propriety of their convictions ad
infinitum.‘ ‖]; Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The
Rutter Group 1989) ¶ 15:1.2, p. 15-1 (rev. #1, 2011) [addressing civil writs: ―Unlike
appeals, which are heard as a matter of right, relief through writ review is deemed
extraordinary . . .‖].)
The abuse of the writ concept is not new; this court invoked it 100 years ago in
Matter of Ford (1911) 160 Cal. 334. In that case, the defendant was at liberty, having
posted bail before trial. Wishing to challenge the trial court‘s failure to grant his
motion to dismiss the charges on speedy trial grounds, the defendant maneuvered to
submit himself to the sheriff‘s custody for a short time so as to prosecute a petition for
a writ of habeas corpus.7 ―It was evidently intended that the custody should endure
no longer than was necessary to make this application and was solely for the purpose
of making out a case to support the issuance of the writ.‖ (Id. at pp. 340-341.)
Although his speedy trial issue likely had merit, this court nevertheless denied relief
by relying on an abuse of the writ rationale: ―[V]oluntary imprisonment, had for the
sole purpose of making a case on habeas corpus, was contrary to the spirit, purpose,
and object of the writ and was an abuse of it.‖ (Id. at p. 342, original italics omitted,
italics added.)
Although we have had few occasions to address the abuse of the writ doctrine
in the decades following Matter of Ford, supra, 160 Cal. 334 (but see In re Swain
(1949) 34 Cal.2d 300, 303 [―It should be noted that no question of the abuse of the
writ of habeas corpus is before us . . .‖]), our cases have repeatedly said we do not
7 ―In previous eras, the custody requirement [for habeas corpus] was interpreted
strictly to mean actual physical detention. [Citations.] This view has since been
somewhat relaxed. Thus, ‗the decisional law of recent years has expanded the writ‘s
application to persons who are determined to be in constructive custody. Today, the
writ is available to one on . . . bail (In re Petersen (1958) 51 Cal.2d 177 [331 P.2d
24]) . . . .‘ ‖ (People v. Villa (2009) 45 Cal.4th 1063, 1069.)
17
condone abusive writ petitions. (In re Sanders, supra, 21 Cal.4th at p. 721 [noting
that this court ― ‗has never condoned abusive writ practice‘ ‖]; In re Clark, supra, 5
Cal.4th at p. 769 [same]; see also In re Gallego (1998) 18 Cal.4th 825, 842 (conc. &
dis. opn. of Brown, J.) [stating she does not ―countenance abuse of the writ‖];
Sanders, at p. 731 (dis. opn. of Baxter, J.) [noting this court‘s timeliness rules
―discourage abuse of the writ‖].) ―[C]ourts have regularly applied the doctrine of
‗abuse of the writ‘ and refused to entertain a claim presented for the first time in a
second or subsequent petition for writ of habeas corpus.‖ (In re Bittaker (1997) 55
Cal.App.4th 1004, 1012, fn. 3.)
We addressed the abuse of the writ doctrine in a comprehensive way in In re
Clark, supra, 5 Cal.4th 750. In that capital case, we had on April 5, 1990, affirmed
both the guilt and penalty judgments on appeal (People v. Clark (1990) 50 Cal.3d
583) and thereafter, on May 15, 1991, denied Clark‘s first habeas corpus petition.
Three months after our denial, Clark filed a second petition raising several claims that
were merely ―restatements or reformulations of arguments made and rejected on
appeal or in the prior habeas corpus petition.‖ (In re Clark, at p. 763.) Although he
presented other claims for the first time, these could have been raised on appeal or in
the first habeas corpus petition because they were based on facts long known to Clark.
This repetitive petition included no allegations suggesting why Clark was renewing
stale claims, or why the new claims had not been presented to the court previously,
either on appeal or in the first habeas corpus petition. (Ibid.)
We concluded: ―This court has never condoned abusive writ practice or
repetitious collateral attacks on a final judgment. Entertaining the merits of
successive petitions is inconsistent with our recognition that delayed and repetitious
presentation of claims is an abuse of the writ. [¶] ‗It is the policy of this court to deny
an application for habeas corpus which is based upon grounds urged in a prior petition
which has been denied, where there is shown no change in the facts or the law
18
substantially affecting the rights of the petitioner.‘ ‖ (In re Clark, supra, 5 Cal.4th at
p. 769.) Regarding the presentation of new grounds based on matters known to the
petitioner at the time of a previous petition, we observed that ― ‗in In re Drew (1922)
188 Cal. 717, 722 [207 P. 249], it was pointed out that the applicant for habeas corpus
―not only had his day in court to attack the validity of this judgment, but . . . had
several such days, on each of which he could have urged this objection, but did not do
so‖; it was held that ―The petitioner cannot be allowed to present his reasons against
the validity of the judgment against him piecemeal by successive proceedings for the
same general purpose.‖ ‘ ‖ (Clark, at p. 770.) Our conclusion, we noted, was
consistent with the abuse of the writ doctrine as applied in the federal courts, as
explained in McCleskey v. Zant, supra, 499 U.S. 467 (Clark, at pp. 755-780, 787-
790), as well as the rules in other states (id. at pp. 791-795).
Clark thus reiterated the abuse of the writ doctrine in the modern era and
established a strict pleading standard: ―[T]he petitioner . . . bears the initial burden of
alleging the facts on which he relies to explain and justify delay and/or a successive
petition.‖ (In re Clark, supra, 5 Cal.4th at p. 798, fn. 35.) Because the petitioner in
Clark did not ―state[] specific facts to establish that his newly made claims were
presented without substantial delay‖ or explain why any of the claims were based on a
legal error involving ―a fundamental miscarriage of justice,‖ this court denied the
petition without ―consider[ing] the merits of any of the claims.‖ (Id. at p. 799.)
Subsequent cases have echoed Clark‘s strict pleading standard. (In re Robbins, supra,18 Cal.4th at p. 805 [citing the Clark pleading requirement with approval when
addressing a delayed petition]; In re White (2004) 121 Cal.App.4th 1453, 1481
[same].)
Despite its in-depth discussion of the abuse of the writ doctrine, the
consequences for the petitioner and his counsel in In re Clark, supra, 5 Cal.4th 750,
were relatively mild. Faced with a petitioner who had filed a successive and
19
repetitive petition raising untimely claims, all of which had been either raised and
rejected on appeal or in a prior habeas corpus petition, or which could have been (but
were not) presented on appeal or in the first habeas corpus petition, we simply denied
the petition summarily and did not consider the substantive merits of the claims. (Id.
at p. 799.)
In the years following In re Clark, however, perhaps out of an abundance of
caution, this court has in capital cases continued to address the substantive merits of
abusive and potentially abusive habeas corpus petitions. That is, when considering
second and subsequent habeas corpus petitions, in addition to denying claims on
procedural grounds (signified by the citation of various procedural bars in our denial
orders), we have assessed the substantive merits of barred claims and denied them on
those merits as well.
In a capital case, a detailed and comprehensive first state habeas corpus
petition serves an important purpose, for courts can rest assured that, between the
trial, the appeal, and the habeas corpus petition, the defense8 has had ample
opportunity to raise all meritorious claims, the adversarial process has operated
correctly, and both this court and society can be confident that, before a person is put
to death, the judgment that he or she is guilty of the crimes and deserves the ultimate
punishment is valid and supportable. Indeed, a system of justice that does not allow
for the fair and timely presentation of claims of innocence or the absence of fair
procedure would lack credibility. These concerns perhaps underlie the decision of
this court, and this state, to assume a generous postconviction position: vis-à-vis
8 Our standards for counsel who are eligible for appointment to represent capital
defendants on habeas corpus are high. (See In re Morgan, supra, 50 Cal.4th at p. 938,
fn. 4.)
20
other states, we authorize more money to pay postconviction counsel,9 authorize more
money for postconviction investigation,10 allow counsel to file habeas corpus
9 In California, attorney fees for habeas corpus counsel in capital cases is
governed by the Supreme Court Policies Regarding Cases Arising From Judgments of
Death (hereafter Supreme Court Policies), policy 3, standard 2-1 et seq. Those
standards in turn refer to the Payment Guidelines for Appointed Counsel Representing
Indigent Criminal Appellants in the California Supreme Court. Guideline II.A
provides for a per hour rate of $145. Guideline II.I.3.ii sets forth the benchmarks for
particular tasks in habeas corpus cases. For separate habeas corpus counsel, the upper
benchmark for client contact, investigation, and preparation of the petition and an
informal reply is 690 hours, or over $100,000, excluding the fee for reviewing the
appellate record, for which counsel can bill at 50 pages per hour. In a typical case in
which the record (clerk‘s and reporter‘s transcripts) is about 10,000 pages, that
translates into 200 hours of record review, totaling an additional $29,000. In our
experience, counsel appointed to prepare and file habeas corpus petitions for death
row inmates quite often earn well over the upper benchmark of $130,000. In many
cases, capital habeas corpus counsel earn over $200,000 for a single case.
In Florida, by contrast, capital habeas corpus counsel receives $100 per hour,
up to $2,500 prior to filing the petition. Upon filing the petition in the trial court,
counsel can receive up to an additional $20,000 (at $100 per hour) and can bill an
additional $20,000 after the trial court grants or denies the petition. Thus, counsel can
presumably earn up to $42,500, and more if he or she takes the case to the Florida
Supreme Court. (Fla. Stat., § 27.711, subd. (4)(a)-(f).)
In Texas, habeas corpus counsel is entitled to no more than $25,000 from the
state in ―[c]ompensation and expenses‖ combined (Tex. Code Crim. Proc., art.
11.071, § 2A, subd. (a)), although an individual county can pay more.
10 Under our rules, habeas corpus counsel is preauthorized to spend up to $50,000
investigating a postconviction habeas corpus petition. (Supreme Ct. Policies, supra,
policy 3, std. 2-2.1.)
In Florida, the same attorney may spend, with trial court approval, $40 per
hour for investigator services, up to a total of $15,000 (Fla. Stat., § 27.711, subd. (5))
and may spend, with court approval, up to $15,000 in miscellaneous expenses
investigating postconviction claims (id., § 27.711, subd. (6)). More is available upon
a showing that ―extraordinary circumstances‖ exist. (Ibid.)
In Texas, habeas corpus counsel is entitled to no more than $25,000 from the
state in ―[c]ompensation and expenses‖ combined. (Tex. Code Crim. Proc., art.
11.071, § 2A, subd. (a).)
21
petitions containing more pages,11 and permit more time following conviction to file a
petition for what is, after all, a request for collateral relief.12 Any such justification
for tolerating a detailed and comprehensive first petition all but disappears for second
and subsequent petitions in this court. Absent the unusual circumstance of some
critical evidence that is truly ―newly discovered‖ under our law,13 or a change in the
11 There is no page limit for habeas corpus petitions in California. (See
discussion, post.)
In Florida, a first habeas corpus petition ―shall not exceed 75 pages (Fla. Rules
Crim. Proc., § 3.851(e)(1)), and subsequent petitions ―shall not exceed 25 pages‖ (id.,
subd. (e)(2)).
There is no page limit in Texas, but the strict time limits for filing
postconviction habeas corpus petitions probably act to constrain the length of such
petitions. (Tex. Code Crim. Proc., art. 11.071, § 4, subd. (a) [petition must be filed
within 180 days after counsel is appointed or 45 days after the state‘s brief on appeal,
whichever is later].) The same is probably true in Pennsylvania, where a petition for
postconviction relief must be filed ―within one year of the date the judgment becomes
final.‖ (Pa. Rules of Crim. Proc., rule 901(A).)
12 Supreme Court Policies, policy 3, standard 1-1.1 provides that, to be
considered presumptively timely, a habeas corpus petition must be filed within 180
days of the final due date for the reply brief on appeal or within 36 months after
counsel is appointed. Due to the difficulty in finding counsel, in many cases habeas
corpus counsel is not even appointed until long after the appeal, meaning we may
receive a first habeas corpus petition five or more years after deciding the appeal and
still be required, under our rules, to consider the petition as timely.
In Florida, by contrast, the petition must be filed within one year of the
judgment‘s finality (Fla. Rules Crim. Proc., § 3.851(d)(1)), which in most cases
occurs when the United States Supreme Court denies certiorari (id., subd. (d)(1)(A)).
Florida apparently does not have the time lag in appointing counsel that we
experience, as their rules provide for the appointment of institutional counsel or
private conflict counsel ―[u]pon issuance of the mandate affirming a judgment and
sentence of death on direct appeal.‖ (Id., § 3.851(b)(1); cf. Herrera v. Collins (1993)
506 U.S. 390, 410 [―Texas is one of 17 States that requires a new trial motion based
on newly discovered evidence to be made within 60 days of judgment.‖].)
13 To support a collateral attack, newly discovered evidence of innocence must
cast fundamental doubt on the accuracy of the trial and, if believed, must undermine
the prosecution‘s entire case and point ― ‗ ―unerringly to innocence.‖ ‘ ‖ (In re
Lawley, supra, 42 Cal.4th at p. 1239.) New evidence also may relate to claims of jury
or prosecutorial misconduct, or occasionally to other issues.
22
law,14 such successive petitions rarely raise an issue even remotely plausible, let alone
state a prima facie case for actual relief. In the 18 years since In re Clark, supra, 5
Cal.4th 750, experience has taught that in capital cases, petitioners frequently file
second, third, and even fourth habeas corpus petitions raising nothing but
procedurally barred claims.
As we explain below, the petition for a writ of habeas corpus in the present
case is an example of an abusive writ practice: voluminous in size and abounding in
detail, the petition nevertheless raises claims almost all of which are procedurally
barred. Many claims are barred for more than one reason. Counsel have an ethical
duty to notify the court if an issue in the petition is procedurally barred. (Bus. & Prof.
Code, § 6068 [―It is the duty of an attorney to do all of the following: [¶] . . .
[¶] (d) To employ, for the purpose of maintaining the causes confided to him or her
those means only as are consistent with truth, and never to seek to mislead the judge
or any judicial officer by an artifice or false statement of fact or law.‖].) Petitioner
was permitted three opportunities to allege facts explaining why a particular
procedural bar did not apply: in the petition proper, in the informal reply (Cal. Rules
of Court, rule 8.385(b)(3)), and in the traverse filed in response to the People‘s return
(People v. Duvall, supra, 9 Cal.4th at pp. 476-477). Although normally the
justification for raising a claim must be stated in the petition itself and not in later
14 For example, following the high court‘s decision in Atkins v. Virginia (2002)
536 U.S. 304, which held that execution of mentally retarded persons violated the
Eighth Amendment to the United States Constitution, some death row inmates whose
initial habeas corpus petitions had already been denied by this court filed new
petitions alleging they were ineligible for execution due to their retardation. This
court issued orders to show cause in some of those cases despite the successive nature
of the petitions involved, recognizing Atkins represented a change in the law excusing
both the delay and successive nature of the petitions.
23
pleadings such as the informal reply or the traverse,15 in this case we will consider
arguments raised for the first time in the traverse because our order to show cause
specifically directed petitioner to provide the court with such information.
15 We explained the proper procedure in In re Clark, supra, 5 Cal.4th at
page 781, footnote 16: ―The court determines on the basis of the allegations of the
original petition . . . , as well as the supporting documentary evidence and/or
affidavits, which should be attached if available, whether a prima facie case entitling
the petitioner to relief if the allegations are proven has been stated. If so, the court
issues an order directing the respondent to show cause why the relief sought should
not be granted based on those allegations. When an order to show cause does issue, it
is limited to the claims raised in the petition and the factual bases for those claims
alleged in the petition. It directs the respondent to address only those issues. While
the traverse may allege additional facts in support of the claim on which an order to
show cause has issued, attempts to introduce additional claims or wholly different
factual bases for those claims in a traverse do not expand the scope of the proceeding
which is limited to the claims which the court initially determined stated a prima facie
case for relief.‖ (Italics added; see People v. Duvall, supra, 9 Cal.4th at p. 478
[quoting italicized passage with approval]; Board of Prison Terms v. Superior Court
(2005) 130 Cal.App.4th 1212, 1235 [same].)
For similar reasons, belatedly raising new claims or theories for the first time
in the informal reply brief (see Cal. Rules of Court, rule 8.385(b)(3)) is also improper.
―If the imprisonment is alleged to be illegal, the petition must also state in what the
alleged illegality consists.‖ (Pen. Code, § 1474, italics added.) Although Clark spoke
in terms of evaluating the petition along with ―the amended or supplemental petition,
if any,‖ (In re Clark, supra, 5 Cal.4th at p. 781, fn. 16), Clark also said that we will
not ―routinely delay action on a filed petition to permit amendment and
supplementation‖ (id. at p. 781). We have thereafter followed a policy to deny
permission to file supplemental or amended petitions in capital cases and to require
that new claims be raised in a separate petition. Supplements to shell petitions are
excepted from this rule. (In re Morgan, supra, 50 Cal.4th at pp. 940-941.)
The rule that a claim for relief must be supported by factual allegations in the
petition itself, and not in the traverse, logically applies to a petitioner‘s contention that
a particular procedural bar is inapplicable. Just as a habeas corpus petition is
defective for failing to allege the petitioner‘s custodial status (see People v. Villa,
supra, 45 Cal.4th at p. 1069), or for failing to allege facts showing why allegedly new
evidence ― ‗could not have been discovered with reasonable diligence prior to
judgment‘ ‖ (In re Hardy (2007) 41 Cal.4th 977, 1016, quoting Pen. Code, § 1473.6,
subd. (b)), the petition, not the informal reply or traverse, must include specific
allegations indicating why a seemingly applicable procedural bar does not apply, or
why the case falls within an exception to the procedural bar. ―[T]he petitioner filing a
24
B. Application to This Case
1. Timeliness
a. Introduction
A criminal defendant mounting a collateral attack on a final judgment of
conviction must do so in a timely manner. ―It has long been required that a petitioner
explain and justify any significant delay in seeking habeas corpus relief.‖ (In re
Clark, supra, 5 Cal.4th at p. 765.) ―By requiring that such challenges be made
reasonably promptly, we vindicate society‘s interest in the finality of its criminal
judgments, as well as the public‘s interest ‗in the orderly and reasonably prompt
implementation of its laws.‘ [Citation.] Such timeliness rules serve other salutary
interests as well. Requiring a prisoner to file his or her challenge promptly helps
ensure that possibly vital evidence will not be lost through the passage of time or the
fading of memories. In addition, we cannot overestimate the value of the
psychological repose that may come for the victim, or the surviving family and
friends of the victim, generated by the knowledge the ordeal is finally over.
Accordingly, we enforce time limits on the filing of petitions for writs of habeas
corpus in noncapital cases [citation], as well as in cases in which the death penalty has
been imposed.‖ (In re Sanders, supra, 21 Cal.4th at p. 703.)
The filing of a habeas corpus petition containing untimely—and thus
noncognizable—claims wastes scarce judicial resources. The sheer number of such
petition for writ of habeas corpus . . . bears the initial burden of alleging the facts on
which he relies to explain and justify delay and/or a successive petition.‖ (In re
Clark, supra, 5 Cal.4th at p. 798, fn. 35.) Indeed, in most cases there is no return or
traverse, and we may deny relief without requesting an informal response and reply.
Although in this case the traverse has given petitioner an opportunity to allege
additional facts in support of his claims, new theories addressing the applicability of
various procedural bars are, in the usual case, improper when raised for the first time
in the traverse. Moreover, by waiting until his traverse to raise new justifications for
raising claims barred by various procedural rules, petitioner has deprived the People
of any opportunity to respond to or rebut the argument.
25
improper claims in the petition before us, and in other similar petitions, imposes a
tremendous burden on the judicial system that obstructs the orderly administration of
justice. As we explain, the filing of untimely claims without any serious attempt at
justification is an example of abusive writ practice.
b. The applicable law
Our rules establish a three-level analysis for assessing whether claims in a
petition for a writ of habeas corpus have been timely filed. First, a claim must be
presented without substantial delay. Second, if a petitioner raises a claim after a
substantial delay, we will nevertheless consider it on its merits if the petitioner can
demonstrate good cause for the delay. Third, we will consider the merits of a claim
presented after a substantial delay without good cause if it falls under one of four
narrow exceptions: ―(i) that error of constitutional magnitude led to a trial that was so
fundamentally unfair that absent the error no reasonable judge or jury would have
convicted the petitioner; (ii) that the petitioner is actually innocent of the crime or
crimes of which he or she was convicted; (iii) that the death penalty was imposed by a
sentencing authority that had such a grossly misleading profile of the petitioner before
it that, absent the trial error or omission, no reasonable judge or jury would have
imposed a sentence of death; or (iv) that the petitioner was convicted or sentenced
under an invalid statute.‖ (In re Robbins, supra, 18 Cal.4th at pp. 780-781.) The
petitioner bears the burden to plead and then prove all of the relevant allegations.
(Ibid.)
The United States Supreme Court recently, and accurately, described the law
applicable to habeas corpus petitions in California: ―While most States set
determinate time limits for collateral relief applications, in California, neither statute
nor rule of court does so. Instead, California courts ‗appl[y] a general
―reasonableness‖ standard‘ to judge whether a habeas petition is timely filed. Carey
26
v. Saffold, 536 U.S. 214, 222, . . . (2002). The basic instruction provided by the
California Supreme Court is simply that ‗a [habeas] petition should be filed as
promptly as the circumstances allow . . . .‘ ‖ (Walker v. Martin, supra, 562 U.S. at
p. ___ [131 S.Ct. at p. 1125].) ―A prisoner must seek habeas relief without
‗substantial delay,‘ [citations], as ‗measured from the time the petitioner or counsel
knew, or reasonably should have known, of the information offered in support of the
claim and the legal basis for the claim,‘ [citation].‖ (Ibid.; see also In re Robbins,
supra, 18 Cal.4th at p. 780 [―Substantial delay is measured from the time the
petitioner or his or her counsel knew, or reasonably should have known, of the
information offered in support of the claim and the legal basis for the claim.‖].)
c. Absence of substantial delay
The first step in assessing whether a claim has been filed without substantial
delay is determining whether the claim is presumptively timely. For capital cases, our
rules establish a safe harbor for litigants to show their petition has been filed without
substantial delay. ―A petition for a writ of habeas corpus [in a capital case] will be
presumed to be filed without substantial delay if it is filed within 180 days after the
final due date for the filing of appellant‘s reply brief on the direct appeal or within 36
months after appointment of habeas corpus counsel, whichever is later.‖ (Supreme
Ct. Policies, policy 3, std. 1-1.1.) Petitioner filed the present petition in 2004, nine
and one-half years after the 1994 due date for the reply brief in the automatic appeal.
He thus cannot qualify under the 180-day rule. Moreover, although present counsel
was appointed in September 2002 and the petition was filed in May 2004, petitioner is
not entitled to rely on the 36-month safe harbor, as the rule (Supreme Ct. Policies,
policy 3, std. 1-1.1), read in context, applies only to a petitioner‘s first state habeas
27
corpus petition.16 But even were we to assume the rule is ambiguous in this regard, it
has been the rule since 1993, when we decided In re Clark, supra, 5 Cal.4th 750, that
changes in counsel do not reset the clock for timeliness purposes. (Id. at p. 779.) We
conclude the petition before us today obviously is not presumptively timely under our
rules.
Aside from his ineligibility for the safe harbor provision in policy 3, standard
1-1.1 of the Supreme Court Policies, petitioner argues his claims were filed without
substantial delay. ―Substantial delay is measured from the time the petitioner or his or
her counsel knew, or reasonably should have known, of the information offered in
support of the claim and the legal basis for the claim. A petitioner must allege, with
specificity, facts showing when information offered in support of the claim was
obtained, and that the information neither was known, nor reasonably should have
been known, at any earlier time. It is not sufficient simply to allege in general terms
that the claim recently was discovered, to assert that second or successive
postconviction counsel could not reasonably have discovered the information earlier,
or to produce a declaration from present or former counsel to that general effect. A
petitioner bears the burden of establishing, through his or her specific allegations,
which may be supported by any relevant exhibits, the absence of substantial delay.‖
(In re Robbins, supra, 18 Cal.4th at p. 780.) Specific allegations should be succinct
and to the point; there is no need for them to be lengthy.
As discussed in more detail, post, the majority of petitioner‘s claims face
procedural bars for which petitioner offers patently meritless explanations. (Our
16 Occasionally this court must, for reasons of ill health, conflict, or other factors,
vacate the appointment of habeas corpus counsel and appoint a new attorney to
investigate, prepare, and file an inmate‘s first habeas corpus petition. In such cases,
our order of appointment will specifically note how long new counsel will have to file
the petition and still be entitled to a finding of presumptive timeliness. The
appointment of counsel in the present case included no such notation.
28
discussion speaks of the ―inadequacy‖ of the allegations, meaning that what petitioner
has provided frequently is so patently lacking in weight and merit under our standards
that they offer no plausible basis for granting relief.) The claims are based either on
the appellate record (and thus the factual basis of the claim was known at the time of
his retrial in 1987) or on information known at the time he filed his first habeas corpus
petition in 1995.17 The petition alleges that present counsel did not learn the bases of
these claims until they were appointed to represent petitioner by the federal district
court in 2001, and that the claims were ―presented as quickly as possible after the
legal and factual bases for them became known‖ to counsel. He also alleges that in
light of the multiple changes in attorneys over the years,18 he has ―acted as diligently
17 All of petitioner‘s claims are untimely, with these 16 exceptions:
Claim Nos. 123, 128, 129, 130, 133, 134, 135, 136, 137, 138 and 139
(challenges to the constitutionality of the California death penalty law will not be
denied as untimely (In re Clark, supra, 5 Cal.4th at p. 765, fn. 4));
Claim Nos. 125 and 127 (challenges to the efficacy of this court‘s review will
not be denied as untimely because they could not have been raised until after this
court has ruled on the appeal and first habeas corpus petition);
Claim No. 131 (challenge to lethal injection is premature and thus not untimely
(People v. Boyer (2006) 38 Cal.4th 412, 485));
Claim No. 132 (claim that prolonged preexecution confinement is cruel and
unusual is premature and thus not untimely);
Claim No. 143 (claim that cumulative effect of all errors requires relief is not
untimely because it incorporates some timely claims).
18 For his first habeas corpus petition in state court, which we denied in 1995,
petitioner was represented by Attorneys Thomas Nolan and Andrew Parnes. In 1996,
the federal district court appointed Attorney Stanley Greenberg to represent petitioner.
A year later, the same court appointed Nicholas Arguimbau as cocounsel. Later in
1997, the federal court granted Greenberg leave to withdraw and appointed Attorney
Michael Abzug to replace him. Abzug and Arguimbau filed petitioner‘s federal
petition in 1998. Abzug withdrew in 2001, and the federal court appointed current
counsel Peter Giannini to replace him. Later in 2001, Arguimbau withdrew and the
court appointed Attorneys James Thomson and Saor Stetler as cocounsel. In 2002,
this court allowed Attorney Nolan to withdraw and we appointed Giannini, Thomson,
and Stetler to represent petitioner in this court. In 2011, we vacated the appointment
29
as possible,‖ and that the petition was filed ―as soon as he gathered sufficient legal
and factual bases for a prima facie case for each of the potentially meritorious
claims.‖ These stock justifications fail to undermine our conclusion the petition is
substantially, and fatally, untimely. We reiterate that a petitioner bears the burden of
demonstrating timeliness (In re Robbins, supra, 18 Cal.4th at pp. 780, 787), and ―[t]he
burden . . . is not met by an assertion of counsel that he or she did not represent the
petitioner earlier‖ (In re Clark, supra, 5 Cal.4th at p. 765). ―Were the rule otherwise,
the potential for abuse of the writ would be magnified as counsel withdraw or are
substituted and each successor attorney claims that a petition was filed as soon as the
successor attorney became aware of the new basis for seeking relief.‖ (Id. at pp. 765-
766, fn. 6.)
We therefore conclude that with the exception of those claims listed in footnote
17, ante, the claims contained in the petition were all filed after a substantial delay.
d. Good cause for the delay
Petitioner alleges that if we find the claims in the petition are substantially
delayed, as we now do, he has shown good cause for the delay because the facts were
unknown and present counsel only recently discovered the bases of the claims. These
attempted justifications largely echo the arguments previously made and addressed
above and are patently meritless for the same reasons; that is, it appears the facts were
known either at the time of trial or the first habeas corpus petition, and a change in
attorneys does not reset the clock for habeas corpus purposes. Petitioner‘s further
complaint that he is unschooled in the law is irrelevant, as he has been represented by
legal counsel throughout the postconviction period.
of Stetler as associate counsel. Petitioner is currently represented by Attorneys James
Thomson and Peter Giannini.
30
Petitioner also avers that ineffective assistance of prior counsel demonstrates
good cause for the delay. He claims he was ―unable‖ to raise these claims earlier
because Attorney Thomas Nolan, who represented him on appeal and in his first
habeas corpus petition, was ineffective for failing to raise these issues either on appeal
or in that first petition.
―[A] petitioner who is represented by counsel when a petition for writ of
habeas corpus is filed has a right to assume that counsel is competent and is
presenting all potentially meritorious claims.‖ (In re Clark, supra, 5 Cal.4th at p. 780,
italics omitted.) Thus, ―[i]n limited circumstances, consideration may be given to a
claim that prior habeas corpus counsel did not competently represent a petitioner‖ (id.
at p. 779) which, if established, ―may be offered in explanation and justification of the
need to file another petition‖ (id. at p. 780).
The pleading required for a claim that prior habeas corpus counsel was
ineffective in omitting a particular issue tracks what a habeas corpus petitioner must
plead and prove in order to obtain relief on a claim of ineffective assistance of counsel
generally. The basic standard of performance is whether the conduct of counsel—
including counsel in capital cases—―fell below an objective standard of
reasonableness,‖ ― under prevailing professional norms.‖ (Strickland v. Washington
(1984) 466 U.S. 668, 688; see In re Hardy, supra, 41 Cal.4th at p. 1018.) Thus, ―[t]he
petitioner must . . . allege with specificity the facts underlying the claim that the
inadequate presentation of an issue or omission of any issue reflects incompetence of
counsel, i.e., that the issue is one which would have entitled the petitioner to relief had
it been raised and adequately presented in the initial petition, and that counsel‘s
failure to do so reflects a standard of representation falling below that to be expected
from an attorney engaged in the representation of criminal defendants.‖ (In re Clark,
supra, 5 Cal.4th at p. 780.) The mere fact that prior counsel omitted a particular
nonfrivolous claim, however, is not in itself sufficient to establish prior counsel was
31
incompetent. Habeas corpus counsel, like appellate counsel, ―performs properly and
competently when he or she exercises discretion and presents only the strongest claims
instead of every conceivable claim.‖ (In re Robbins, supra, 18 Cal.4th at p. 810.)
Many of the claims now before us were actually raised on appeal or in
petitioner‘s first habeas corpus petition; as to these claims, the allegations of
ineffectiveness of prior counsel are belied by the record. For most of the remaining
claims (what petitioner terms the ―non-repetitive‖ claims), the facts in support were
known, or should have been known, earlier, rendering it possible prior counsel knew
of the facts and unreasonably failed to assert claims based on them.
Indeed, petitioner alleges prior counsel Nolan had no tactical reason for failing
to raise these claims, a fact Nolan asserts—but does not explain—in his declaration
accompanying the traverse. But the ―mere omission of a claim ‗developed‘ by new
counsel does not raise a presumption that prior habeas corpus counsel was
incompetent, or warrant consideration of the merits of a successive petition. Nor will
the court consider on the merits successive petitions attacking the competence of . . .
prior habeas corpus counsel which reflect nothing more than the ability of present
counsel with the benefit of hindsight, additional time and investigative services, and
newly retained experts, to demonstrate that a different or better defense could have
been mounted had . . . prior habeas corpus counsel had similar advantages.‖ (In re
Clark, supra, 5 Cal.4th at p. 780; accord, Harrington v. Richter, supra, 562 U.S. at
p. ___ [131 S.Ct. at p. 788].) Therefore, Nolan‘s asserted lack of a tactical reason for
omitting certain claims does not necessarily establish that he was ineffective for
failing to raise them on appeal or in the first habeas corpus petition. Unless counsel‘s
failure to raise the issue earlier was objectively unreasonable and the omission caused
the petitioner actual prejudice, counsel‘s omission of the claim does not justify the
presentation of the claim in a subsequent petition. Petitioner contends it was
objectively unreasonable that Nolan did not bring certain omitted claims because
32
those claims were ―potentially meritorious.‖ (Clark, at p. 780.) But, as discussed
further below, the omission of these claims did not constitute ineffective assistance of
counsel within the meaning of Clark.
The mere fact that present counsel has identified some legal claims not
previously pressed on appeal or in a prior habeas corpus petition does not necessarily
suggest prior counsel was constitutionally ineffective, for we presume such unraised
claims exist in all cases. For example, because the range of permissible mitigating
evidence admissible in the penalty phase of a capital trial is ―virtually unlimited‖
(People v. Dunkle (2005) 36 Cal.4th 861, 916), the mere fact that new counsel has
discovered some background information concerning a defendant‘s family,
educational, scholastic or medical history that was not presented to the jury at trial in
mitigation of penalty is insufficient, standing alone, to demonstrate prior counsel‘s
actions fell below the standard of professional competence. Even if we could
conclude prior counsel knew, or should have known, of such information, counsel‘s
decision regarding which issues to raise and how vigorously to investigate them given
time and funding restraints ― ‗falls within the wide range of reasonable professional
assistance‘ ‖ (People v. Lewis (2001) 25 Cal.4th 610, 674, quoting Strickland v.
Washington, supra, 466 U.S. at p. 689) and is entitled to great deference. In short, the
omission of a claim, whether tactical or inadvertent, does not of itself demonstrate
ineffectiveness unless it was objectively unreasonable, meaning that the omitted claim
was one that any reasonably competent counsel would have brought. Even if the
omission of a claim was objectively unreasonable, a petitioner must further show that
the claim entitles him or her to relief. Absent such a showing supported by specific
facts, repeated and continual filings based on the justification that one‘s prior attorney
was ineffective are, in the end, infinitely reductive and thus untenable.
Petitioner contends the duty to raise all potentially meritorious claims required
prior habeas corpus counsel to raise claims that had been previously rejected in other
33
cases because the law might change in petitioner‘s favor. (See, e.g., Roper v.
Simmons (2005) 543 U.S. 551 [Eighth Amend. prohibits execution of those who were
under 18 years of age when they committed their crime], overruling Stanford v.
Kentucky (1989) 492 U.S. 361; Atkins v. Virginia, supra, 536 U.S. 304 [Eighth
Amend. prohibits execution of the mentally retarded], overruling Penry v. Lynaugh
(1989) 492 U.S. 302; Hitchcock v. Dugger (1987) 481 U.S. 393 [Florida jury
instruction limiting jury to mitigating circumstances specifically enumerated by
statute is unconstitutional], reversing Cooper v. State (Fla. 1976) 336 So.2d 1133.)
This argument ignores the rule that, should the law change while a defendant is
still pressing his or her appeal or seeking postconviction relief, the defendant is
entitled to file a new petition to take advantage of a change in the law. For example,
we held in In re Harris, supra, 5 Cal.4th 813, that a habeas corpus petitioner may
raise ―an issue previously rejected on direct appeal when there has been a change in
the law affecting the petitioner.‖ (Id. at p. 841, and cases cited.) A change in the law
will also excuse a successive or repetitive habeas corpus petition. (In re Martinez,
supra, 46 Cal.4th at p. 950 & fn. 1.) The possibility that an inmate could be executed
before an appellate court at some future date changes the law in his favor is not a
reason to repeatedly present a claim to the same court that has previously rejected it,
absent a legitimate and asserted ground for revisiting the issue, rooted in the doctrine
of stare decisis. (See, e.g., People v. Drew (1978) 22 Cal.3d 333, 347-348 [explaining
the court‘s abandonment of the M‘Naghten test for insanity].) Thus, prior counsel‘s
failure to raise claims that we have previously rejected in other cases does not justify
the inclusion of such claims in a successive petition.
Petitioner argues both the California Rules of Professional Conduct and the
American Bar Association Model Rules of Professional Conduct (ABA Model Rules)
support the notion that counsel is ethically obligated to raise defaulted claims. He is
mistaken. The Rules of Professional Conduct merely require counsel to act
34
competently, that is, with ―diligence,‖ ―learning and skill,‖ and ―mental, emotional,
and physical ability reasonably necessary for the performance of [legal] service.‖
(Rules Prof. Conduct, rule 3-110(B).) As noted, ethical and diligent counsel may
winnow the available claims so as to maximize the likelihood of obtaining relief.
(See Jones v. Barnes (1983) 463 U.S. 745, 751-754.)
Considering the ABA Model Rules requires a different analysis. California has
not formally adopted those rules as an ethical standard (General Dynamics Corp. v.
Superior Court (1994) 7 Cal.4th 1164, 1190, fn. 6), but rule 1-100(A) of the Rules of
Professional Conduct, applicable to California attorneys, provides that ―[e]thics
opinions and rules and standards promulgated by . . . bar associations may also be
considered‖ when judging the actions or omissions of an attorney. ―Thus, the ABA
Model Rules of Professional Conduct may be considered as a collateral source,
particularly in areas where there is no direct authority in California and there is no
conflict with the public policy of California.‖ (State Comp. Ins. Fund v. WPS, Inc.
(1999) 70 Cal.App.4th 644, 656.) ―[C]ourts and attorneys find the [ABA Model
Rules] helpful and persuasive in situations where the California rules are unclear or
inadequate.‖ (Witkin, 1 Cal. Procedure (5th ed. 2008) Attorneys, § 407(3), p. 521.)
Our state‘s ethical rules concerning counsel in capital cases are neither unclear
nor inadequate, rendering resort to the ABA Model Rules unnecessary. Although
counsel for petitioner and amici curiae point especially to the American Bar
Association‘s Guidelines for the Appointment and Performance of Defense Counsel in
Death Penalty Cases (Feb. 2003 rev.) (ABA Guidelines) as the source of their ethical
obligation to raise defaulted claims,19 those standards are not congruent with
constitutional standards for effective legal representation. For example, guideline
19 [as of Aug. 30,
2012].
35
10.15.1(C) of the ABA Guidelines provides: ―Post-conviction counsel should seek to
litigate all issues, whether or not previously presented, that are arguably meritorious
under the standards applicable to high quality capital defense representation,
including challenges to any overly restrictive procedural rules. Counsel should make
every professionally appropriate effort to present issues in a manner that will preserve
them for subsequent review.‖ (ABA Guidelines, p. 123, italics added.) Commentary
to this guideline states: ―As with every other stage of capital proceedings, collateral
counsel has a duty in accordance with Guideline 10.8 to raise and preserve all
arguably meritorious issues. These include not only challenges to the conviction and
sentence, but also issues which may arise subsequently. Collateral counsel should
assume that any meritorious issue not contained in the initial application will be
waived or procedurally defaulted in subsequent litigation, or barred by strict rules
governing subsequent applications.‖ (Id. at pp. 128-129, italics added, fns. omitted.)
Along these same lines, commentary accompanying guideline 10.8 states:
― ‗One of the most fundamental duties of an attorney defending a capital case at trial
is the preservation of any and all conceivable errors for each stage of appellate and
post-conviction review. Failure to preserve an issue may result in the client being
executed even though reversible error occurred at trial.‘ ‖ (ABA Guidelines, p. 87,
italics added.)
The United States Supreme Court recently addressed the ABA Guidelines in
Bobby v. Van Hook (2009) 558 U.S. ___ [130 S.Ct. 13] (per curiam). In that case, the
Sixth Circuit Court of Appeals had reversed a death penalty judgment after finding
the defendant‘s attorneys constitutionally ineffective, citing the ABA Guidelines. The
high court recognized that ―[r]estatements of professional standards . . . can be useful
as ‗guides‘ to what reasonableness entails, but only to the extent they describe the
professional norms prevailing when the representation took place.‖ (Van Hook, at
p. ___ [130 S.Ct. at p. 16].) But the court criticized the Sixth Circuit‘s treatment of
36
the ABA Guidelines ―not merely as evidence of what reasonably diligent attorneys
would do, but as inexorable commands with which all capital defense counsel ‗ ―must
fully comply.‖ ‘ ‖ (Van Hook, at p. ___ [130 S.Ct. at p. 17].) ― ‗[W]hile States are
free to impose whatever specific rules they see fit to ensure that criminal defendants
are well represented, we have held that the Federal Constitution imposes one general
requirement: that counsel make objectively reasonable choices.‘ ‖ (Ibid.)
We agree with the high court‘s characterization of the ABA Guidelines.
California, consistent with federal law, requires that counsel—including in capital
cases—make objectively reasonable choices according to prevailing professional
norms. (In re Hardy, supra, 41 Cal.4th at p. 1018, citing Strickland v. Washington,
supra, 466 U.S. at pp. 687-688.) To the extent petitioner relies on the ABA
Guidelines‘ directives that ―[p]ost-conviction counsel should seek to litigate all
issues, whether or not previously presented‖ (ABA Guidelines, guideline 10.15.1(C),
italics added), and that counsel is required to preserve ― ‗any and all conceivable
errors‘ ‖ (ABA Guidelines, p. 87, italics added), to justify his position that
postconviction counsel in capital cases is ethically bound to raise defaulted claims in
an exhaustion petition, we reject the point because the ABA Guidelines require much
more of counsel than is required by state and federal law governing ineffective
assistance of counsel.
With respect to habeas corpus counsel‘s duty to investigate legal claims in
capital cases, the ABA Guidelines also are inconsistent with this court‘s standards.
Thus, policy 3, standard 1-1 of the Supreme Court Policies provides: ―The duty to
investigate is limited to investigating potentially meritorious grounds for relief that
come to [habeas corpus] counsel‘s attention in the course of reviewing appellate
counsel‘s list of potentially meritorious habeas corpus issues, the transcript notes
prepared by appellate counsel, the appellate record, trial counsel‘s existing case files,
and the appellate briefs, and in the course of making reasonable efforts to discuss the
37
case with the defendant, trial counsel and appellate counsel. The duty to investigate
does not impose on counsel an obligation to conduct, nor does it authorize the
expenditure of public funds for, an unfocused investigation having as its object
uncovering all possible factual bases for a collateral attack on the judgment. Instead,
counsel has a duty to investigate potential habeas corpus claims only if counsel has
become aware of information that might reasonably lead to actual facts supporting a
potentially meritorious claim.‖ (Italics added.)
By contrast, the ABA Guidelines seem to require habeas corpus counsel to
reinvestigate the entire case from the ground up, irrespective of the strength of the
evidence (ABA Guidelines, guideline 10.7(A)(1) [―The investigation regarding guilt
should be conducted regardless of any admission or statement by the client
concerning the facts of the alleged crime, or overwhelming evidence of guilt . . .‖]) or
the client‘s wishes (id., guideline 10.7(A)(2) [―The investigation regarding penalty
should be conducted regardless of any statement by the client that evidence bearing
upon penalty is not to be collected or presented.‖]). For state habeas corpus
proceedings, commentary to ABA guideline 1.1 notes that habeas corpus counsel
―must be prepared to thoroughly reinvestigate the entire case . . . .‖ (Id., p. 12, italics
added.) The ABA Guidelines thus recommend a higher level of rigor than does this
court or the United States Constitution.
Petitioner fails to demonstrate that counsel was deficient in failing to raise any
of the nonrepetitive claims in the petition before us (that is, claims prior counsel did
not raise) or that the omission caused him prejudice. Petitioner attempts to justify his
presentation of untimely claims by asserting that Nolan, who represented petitioner on
appeal and in his 1995 habeas corpus proceeding, was unreasonably ignorant of
certain undescribed triggering facts that underlie some claims. Petitioner‘s allegations
of Nolan‘s supposed deficient performance are for the most part vague, conclusory,
and bereft of persuasive supporting factual allegations, relying largely on Nolan‘s
38
blanket, generic assertion of his own alleged failings. Nor does petitioner in his
traverse add anything of note regarding why he believes Nolan‘s performance fell
short.
To the extent petitioner points to particular pieces of allegedly ―new‖ evidence
to suggest Nolan was constitutionally ineffective, we have examined them and found
them wanting. For example, claim No. 20 in the present petition alleges the
prosecution failed to disclose evidence in its possession that could have been used to
impeach fellow inmates who testified against petitioner. Nolan raised this claim in
the first habeas corpus petition in 1995. To justify the renewed presentation of the
same claim, petitioner now cites exhibit C, a 1990 Los Angeles County grand jury
report on the subject of jailhouse informants. The report comprising exhibit C was
available five years before petitioner filed his first petition, and petitioner suggests
Nolan was ineffective for failing to rely on it to show the prosecution‘s alleged
dereliction of its duty to disclose potentially exculpatory evidence. But Nolan‘s
declaration omits any mention of this piece of evidence, so we have no way of
knowing whether he was or was not aware of it. In any event, Nolan‘s failure to rely
on the report was not objectively unreasonable.
Nor do the allegations show prejudice. Anthony Cornejo was the principal
inmate who provided evidence against petitioner, and on cross-examination before the
jury, ―he was thoroughly impeached as a notorious jailhouse informant.‖ (Memro II,
supra, 11 Cal.4th at p. 827.) Exhibit C is thus cumulative to the evidence presented at
trial, and petitioner does not show he would have obtained a more favorable result had
Nolan discovered and relied on exhibit C in his 1995 habeas corpus petition.
Petitioner thus fails to demonstrate that ineffective assistance of counsel justifies the
untimely presentation of claim No. 20.
As another example, petitioner argues he has presented new evidence
supporting claim No. 68, i.e., that the prosecution‘s evidence he premeditated and
39
deliberated the murders of Fowler and Chavez was insufficient.20 The purportedly
―new‖ evidence is a psychiatrist‘s 1998 opinion that, due to alleged mental problems,
petitioner could not have premeditated and deliberated the crimes 22 years earlier in
1976. Skeptical as one might be of an opinion regarding someone‘s mental state more
than two decades earlier, the petition in any event does not specifically allege this
information was available at the time petitioner filed his first habeas corpus petition in
1995. Nor does the petition explain why, if the information was available in 1995,
Attorney Nolan‘s failure to discover and rely on it ―fell below an objective standard of
reasonableness‖ under ―prevailing professional norms.‖ (Strickland v. Washington,
supra, 466 U.S. at p. 688; see In re Hardy, supra, 41 Cal.4th at p. 1018.) Nolan was
clearly aware of the premeditation issue, having challenged the sufficiency of the
evidence of premeditation on appeal. (Memro II, supra, 11 Cal.4th at pp. 862-864.)
And trial counsel in closing argument at the penalty phase ―emphasized defendant‘s
mental problems.‖ (Id. at p. 817.) The 1998 psychiatrist‘s opinion is thus revealed as
cumulative to evidence presented at trial, and ―reflect[s] nothing more than the ability
of present counsel with the benefit of hindsight, additional time and investigative
services, and newly retained experts, to demonstrate that a different or better defense
could have been mounted had trial counsel or prior habeas corpus counsel had similar
advantages.‖ (In re Clark, supra, 5 Cal.4th at p. 780, italics added.)
Petitioner‘s further attempt at demonstrating good cause for the delay requires
more discussion. He alleges he has shown good cause for the delay because in
preparing his first habeas corpus petition, he was denied adequate funds to investigate
his case. Prefatory to the entire petition and apparently intended to apply to all 143
claims raised therein, petitioner alleges he ―needs and is entitled to adequate funding
20 As we discuss, post, in part II.B.6., this issue is not cognizable on habeas
corpus in any event.
40
[and] discovery,‖ and that ―[f]urther investigation must be conducted.‖ We observed
in In re Gallego that ―a petitioner who earlier presented a [habeas corpus] petition
containing a claim supported by certain information, and who later presents a
subsequent petition raising the same or an analogous claim supported by additional
information‖ may be excused from our timeliness rules if he pleads specific facts
showing he ―reasonably failed to discover the additional information—as a result of a
denial of a request for funds to investigate the claim . . . .‖ (In re Gallego, supra, 18
Cal.4th at p. 835, fn. 8.)
Petitioner‘s allegations regarding the denial of investigative funds are wholly
inadequate to satisfy his pleading burden, as he fails to state he ―timely file[d] a
request for funding of a specific proposed investigation, fully disclosing all asserted
triggering information in support of the proposed investigation.‖ (In re Gallego,
supra, 18 Cal.4th at p. 828, italics added.) Instead of addressing the untimeliness of
any particular claim, petitioner presents a scattershot defense he apparently intends to
apply to all claims. This global approach is insufficient to come within the Gallego
rule. For example, for each claim, petitioner fails to allege when he learned the
pertinent triggering information, when he sought investigative funds, and when this
court denied them. Instead, petitioner‘s briefing discloses but a generalized lament
that he desired more investigative funds, a complaint untethered to any specific set of
claims or issues. These types of general allegations do not demonstrate good cause
for delay under Gallego. We conclude the denial of investigatory funding in
connection with petitioner‘s first petition does not provide good cause for the
untimely presentation of claims.
Because Gallego was decided in 1998, we take this opportunity to announce a
modification of the Gallego rule permitting denial of investigative funds to justify
delay in the presentation of a claim. At the time counsel were preparing the habeas
corpus petition at issue in Gallego, habeas corpus counsel in capital cases were
41
authorized to spend only $3,000 in investigative funds without prior authorization.
(Supreme Ct. Policies, former policy 3, std. 2-2.3.) Under that scheme, counsel could
file requests for additional investigative funds with no set ceiling. Now, under the
present scheme, habeas corpus counsel in capital cases may (under most
circumstances) spend up to $50,000 to investigate the case without preauthorization
from this court (id., policy 3, std. 2-2.1), but will not be reimbursed for more than that
amount unless this court issues an order to show cause. (See Gov. Code, § 68666,
subd. (b) [―The Supreme Court may set a guideline limitation on investigative and
other expenses allowable for counsel to adequately investigate and present collateral
claims of up to fifty thousand dollars ($50,000) without an order to show cause.‖].)
Although this amount of investigative funds may not be sufficient for counsel to
comply with the ABA Guidelines‘ directive to reinvestigate the entire case from the
ground up (nor is it intended to be sufficient in that regard), it should suffice for
counsel to investigate potentially meritorious issues outside the record and thereby
comply with the duty to investigate set forth in policy 3 of the Supreme Court
Policies. Attorneys appointed in capital cases are expected to make tactical decisions
on how to most prudently use this generous allocation of public funds and to prioritize
which issues are most likely to bear fruit, and this court will not second-guess
counsel‘s reasonable tactical decisions in this regard. Therefore, in light of post-
Gallego rule changes, a claim that counsel was denied additional funding after
exhausting his or her $50,000 in allotted investigative funds will be carefully
scrutinized by this court, and a formulaic allegation of insufficient funds will not
justify untimely presentation of a claim on habeas corpus.
e. Exceptions
Petitioner contends that should we find he presented the claims in the petition
after a substantial delay and without good cause, as we do, we should also find that
42
the claims fall within several exceptions set forth in our previous cases. First
announced in In re Clark, supra, 5 Cal.4th at pages 797-798, and later endorsed in In
re Robbins, supra, 18 Cal.4th at pages 780-781, we have explained that, at least in
capital cases, ―[t]he magnitude and gravity of the penalty of death persuades us that
the important values which justify limits on untimely . . . petitions are outweighed by
the need to leave open this avenue of relief. Thus, for purposes of the exception to the
procedural bar against successive or untimely petitions, a ‗fundamental miscarriage of
justice‘ will have occurred in any proceeding in which it can be demonstrated:
(1) that error of constitutional magnitude led to a trial that was so fundamentally
unfair that absent the error no reasonable judge or jury would have convicted the
petitioner; (2) that the petitioner is actually innocent of the crime or crimes of which
the petitioner was convicted; (3) that the death penalty was imposed by a sentencing
authority which had such a grossly misleading profile of the petitioner before it that
absent the trial error or omission no reasonable judge or jury would have imposed a
sentence of death; [or] (4) that the petitioner was convicted or sentenced under an
invalid statute. These claims will be considered on their merits even though presented
for the first time in a successive petition . . . .‖ (Clark, at pp. 797-798, fns. omitted.)
The words used to articulate the Clark exceptions to our timeliness rules—
―fundamentally unfair,‖ ―actually innocent,‖ ―grossly misleading profile,‖ ―invalid
statute‖ (ibid., italics added)—indicate how high the bar is to a litigant‘s successfully
invoking these narrow exceptions.
Seeking to come within the exceptions, petitioner alleges his claims
demonstrate his retrial was a fundamental miscarriage of justice and his jury received
a grossly misleading profile of him at the penalty phase. He also alleges that his
petition ―raises substantial claims of constitutional magnitude‖ and ―involve[s]
constitutional questions of extraordinary importance.‖ Such general allegations are
wholly inadequate: With the possible exception of claim Nos. 107 to 109, which
43
concern mitigating evidence not presented to the penalty jury,21 the petition alleges no
facts suggesting why we should conclude his claims fall within the Clark exceptions
and fails to connect the many other claims raised to this allegedly new evidence. In
short, the petition fails to demonstrate that these claims fall within one of the narrow
Clark exceptions.
The same analysis applies to the informal reply which, like the petition, merely
states in conclusory terms that errors of ―constitutional magnitude‖ occurred, that the
jury was presented with a grossly misleading profile of petitioner at the penalty phase,
and that he was sentenced under an invalid statute. None of these allegations is
sufficiently specific, or states facts sufficient, to come within one of the four narrow
exceptions to our timeliness rules.
Prompted by our order to show cause, the traverse contains more detail.
Petitioner contends in his traverse that he has raised ―eighteen (18) non-repetitive
appellate claims premised on fundamental constitutional error that strikes at the heart
21 In support of claim Nos. 107, 108 and 109 (alleging trial counsel was
ineffective for failing to investigate and present evidence both of petitioner‘s mental
problems and his dissolute and violent family background), petitioner submits the
declarations of nine family members who were available to testify at trial about the
physical and mental abuse petitioner suffered as a child at the hands of a violent,
alcoholic father, petitioner‘s emotional outbursts, and his extended family‘s history of
alcoholism and financial difficulties. He also presents the declaration of Gretchen
White, Ph.D., who prepared a posttrial social history of petitioner based on two
interviews with him in 1998 (11 years after his retrial) and family members‘
declarations. White notes that in a prison psychiatrist‘s 1980 evaluation following
petitioner‘s first conviction in 1978 (subsequently reversed in Memro I, supra, 38
Cal.3d 658), the expert viewed petitioner‘s attraction to young males as a
pathologically motivated wish to experience love and that the crimes occurred
because petitioner was overwhelmed by rage. Finally, petitioner provides the
declaration of George Woods, M.D., who interviewed him four times, also in 1998.
Based on those interviews and his review of petitioner‘s social history and medical
and psychiatric records, Woods diagnosed petitioner with borderline personality
disorder and posttraumatic stress disorder. In Dr. Woods‘s opinion, ―competent
professionals would have drawn the same conclusions at the time of trial.‖
44
of the trial process,‖ identifying those claims simply as ―See Claims 11, 12, 13, 42,
43, 45, 72, 74, 75, 76, 77, 78, 79, 83, 84, 116, 117, and 124.‖ This list matches
generally those claims that could have been, but were not, raised on direct appeal.
(See discussion of claims barred by the Dixon rule post.) Petitioner thus contends that
those appellate claims he could have, but did not, raise on appeal, all have a
constitutional basis and therefore all fall within Clark‘s exception to our timeliness
rules for claims raising ―error[s] of constitutional magnitude [that] led to a trial that
was so fundamentally unfair that absent the error no reasonable judge or jury would
have convicted the petitioner.‖ (In re Clark, supra, 5 Cal.4th at p. 797.) He is
mistaken. As noted, the exception is a narrow one, and merely asserting, without
more, that a claim has a plausible constitutional basis does not satisfy the pleading
burden to allege that an otherwise untimely claim addresses a fundamental
constitutional error such that no reasonable judge or jury would have convicted
petitioner absent the error. We explained in Clark that to qualify under this narrow
exception, the claim ―must be such that it would ‗undermine the entire prosecution
case and point unerringly to innocence or reduced culpability.‘ ‖ (Id. at p. 797, fn.
32.) Petitioner‘s bare allegations, unadorned as they are by factual allegations and
argument, do not demonstrate that any of these claims fall within this narrow
exception.
We reach the same conclusion for another 42 claims petitioner lists, but does
not discuss, save for asserting without explanation that all 42 claims ―include
constitutional errors that are fundamental in nature.‖ But even were we to accept
petitioner‘s unsupported claim that 60 (18 plus 42) of his claims, although untimely,
should be considered because they fall within the exception for fundamental
constitutional errors, dozens of claims remain for which no exception applies, and as
to which petitioner does not even attempt to justify an untimely presentation. To raise
45
so many untimely claims with no explanation is an example of an abusive writ
practice.
The second of the Clark exceptions to our timeliness rules allows for a court to
consider an otherwise untimely claim that ―the petitioner is actually innocent of the
crime or crimes of which [he] was convicted.‖ (In re Clark, supra, 5 Cal.4th at
pp. 797-798.) Petitioner contends his petition falls within this exception because he is
innocent of murdering Fowler and Chavez in 1976 and Carl Jr. in 1978. The
argument need not long detain us, for petitioner‘s allegations of innocence do not
approach the high bar this court has set for such claims; that is, the allegations do not
cast fundamental doubt on the accuracy and reliability of the trial proceedings, nor
undermine the prosecution‘s entire case and ― ‗ ―point unerringly to innocence or
reduced culpability.‖ ‘ ‖ (In re Lawley, supra, 42 Cal.4th at p. 1239; see Clark, at
p. 798, fn. 33.) Although the passage of time and the application of defense counsel‘s
energy and money have allowed counsel to raise some questions at the periphery of
the body of evidence against petitioner, such questions do not strike at the heart of the
prosecution‘s case. ―Evidence relevant only to an issue already disputed at trial,
which does no more than conflict with trial evidence, does not constitute ‗ ―new
evidence‖ that fundamentally undermines the judgment.‘ ‖ (Clark, at p. 798, fn. 33.)
Rather, a petitioner must show ―the evidence of innocence could not have been, and
presently cannot be, refuted.‖ (Ibid.) We conclude the untimeliness of the claims
raised in the present petition cannot be excused by reliance on the exception for
claims of actual innocence.
The third of the Clark exceptions to our timeliness rules is that ―the death
penalty was imposed by a sentencing authority which had such a grossly misleading
profile of the petitioner before it that absent the trial error or omission no reasonable
judge or jury would have imposed a sentence of death.‖ (In re Clark, supra, 5 Cal.4th
at p. 798.) Petitioner contends his petition falls within this exception because his trial
46
attorney performed deficiently in presenting available mitigating evidence to the jury.
Accordingly, he contends claim Nos. 107, 108, 109 (which concern the alleged failure
to present mitigating evidence at the penalty phase), 110 (alleging counsel‘s failure to
argue lingering doubt) and 111 (alleging counsel‘s failure to effectively cross-
examine a prosecution witness at the penalty phase) should be considered despite their
manifest untimeliness.
We explained the contours of this exception in Clark: ―[A] ‗grossly
misleading profile‘ is not one which simply fails to alert the jury to some potentially
mitigating evidence. The picture of the defendant painted by the evidence at trial
must differ so greatly from his or her actual characteristics that the court is satisfied
that no reasonable judge or jury would have imposed the death penalty had it been
aware of the defendant‘s true personality and characteristics.‖ (In re Clark, supra, 5
Cal.4th at p. 798, fn. 34.) Here, the defense called a single witness at the penalty
phase: petitioner‘s youngest sister, Kathy Klabunde. She testified that their father
was a violent alcoholic who verbally abused his children. Their mother was a strict
Catholic who disapproved of petitioner‘s homosexuality. Klabunde also testified that
petitioner had suffered from severe migraine headaches since he was young, which
resulted in his being quick to anger. Petitioner was shocked to discover Klabunde
intended to testify on his behalf, and he was ―very adamant‖ that she not do so.
Although petitioner was represented by counsel, he interrupted Klabunde‘s testimony
at several points with objections, which the court overruled. When Klabunde testified
that petitioner had cried when she called him several years earlier to say their mother
had died, petitioner yelled out, ―You‘re lying!‖ After Klabunde‘s testimony,
petitioner successfully sought to reopen the case so that he could testify. He then read
a statement to the jury, asking for a death verdict. ―At closing argument, counsel
emphasized [petitioner‘s] mental problems‖ as well as the ―positive aspects of his
47
background and character, including his remorse when he was discovered.‖ (Memro
II, supra, 11 Cal.4th at p. 817.)
Although petitioner now presents allegations of additional facts relevant to his
abusive childhood and his mental illness, and supports them with declarations from
nine family members and social historian Dr. Gretchen White, this allegedly new
evidence fails to reach the high standard of showing that the jury was presented with
such a ―grossly misleading profile‖ at the penalty phase that ―no reasonable judge or
jury would have imposed the death penalty had it been aware of the defendant‘s true
personality and characteristics.‖ (In re Clark, supra, 5 Cal.4th at p. 798, fn. 34.)
Instead, it merely elaborates upon and embellishes Klabunde‘s testimony. We
conclude the untimeliness of claim Nos. 107, 108, 109, 110 and 111 cannot be
excused by reliance on the third Clark exception.
The fourth and final of the Clark exceptions permits consideration of a delayed
claim that alleges the petitioner was convicted under an invalid statute. (In re Clark,
supra, 5 Cal.4th at p. 798.) In an attempt to qualify under this exception, petitioner
argues he has ―raised twelve (12) non-repetitive claims challenging the validity of the
California death penalty statutes.‖ Accordingly, he contends claim Nos. 128 through
139—all of which concern the constitutionality of the death penalty law—should be
considered despite the untimeliness of their presentation. (See fn. 17, ante.)
As we noted in footnote 17, ante, we agree claim Nos. 123, 128, 129, 130, 133,
134, 135, 136, 137, 138 and 139 fall within Clark‘s fourth exception. (In re Clark,
supra, 5 Cal.4th at p. 765, fn. 4; id. at p. 798.) Claim Nos. 125 and 127 attack the
efficacy of this court‘s prior review and are similarly not untimely. Claim Nos. 131
and 132 do not challenge the validity of a statute but are not untimely because both
claims are premature: claim No. 131 alleges the unconstitutionality of execution by
lethal injection (People v. Boyer, supra, 38 Cal.4th at p. 485), and claim No. 132
alleges the unconstitutionality of execution after a prolonged confinement. Finally,
48
claim No. 143, alleging the cumulative effect of all errors, is not untimely because it
incorporates some claims that are timely.
In sum, of petitioner‘s 143 claims, 16 are not barred as untimely. (See fn. 17,
ante.) The balance of his 143 claims are untimely under the standards set forth in our
precedents. To raise a multitude of untimely claims without making a plausible effort
to demonstrate a proper justification of timeliness, or without any justification at all,
is an example of abusive writ practice.
2. Waltreus
There may be no more venerable a procedural rule with respect to habeas
corpus than what has come to be known as the Waltreus rule; that is, legal claims that
have previously been raised and rejected on direct appeal ordinarily cannot be reraised
in a collateral attack by filing a petition for a writ of habeas corpus. The origins of the
rule may be traced at least as far back as 1945, where in In re Byrnes (1945) 26 Cal.2d
824 we suggested that a criminal defendant could not properly file a petition for a writ
of habeas corpus in lieu of directly appealing a conviction, noting that ―[i]t is well
settled that a writ of habeas corpus ordinarily may not be employed as a substitute for
an appeal‖ (id. at p. 827, italics added). Relying on Byrnes, we later refined the
concept, opining that habeas corpus ―will not lie ordinarily as a substitute for an
appeal [citation] nor as a second appeal.‖ (In re Winchester (1960) 53 Cal.2d 528,
532, italics added.) These authorities led to the decision from which the Waltreus rule
draws its name. In Waltreus, a defendant filed a petition for a writ of habeas corpus,
repeating several legal issues this court had already considered and found lacking in
merit on direct appeal. We declined to address those renewed claims, noting simply
that ―[t]hese arguments were rejected on appeal, and habeas corpus ordinarily cannot
serve as a second appeal.‖ (In re Waltreus, supra, 62 Cal.2d at p. 225.)
49
We stated the rule plainly in In re Harris, supra, 5 Cal.4th at page 825:
―[W]hen a criminal defendant raises in a petition for a writ of habeas corpus an issue
that was raised and rejected on direct appeal, this court usually has denied the petition
summarily, citing Waltreus, supra, 62 Cal.2d 218. . . . By citing Waltreus in our
summary denial orders, we have intended to communicate that because the issue was
previously raised and rejected on direct appeal, and because the petitioner does not
allege sufficient justification for the issue‘s renewal on habeas corpus, the issue is
procedurally barred from being raised again.‖ The Waltreus rule is thus consistent
with the very nature of habeas corpus; that is, an extraordinary remedy applicable
when the usual channels for vindicating rights—trial and appeal—have failed. If an
issue has been raised and rejected first at trial and then on appeal, no reason exists to
permit what amounts to a third bite of the apple. Indeed, in this age of dramatically
increased filings and shrinking judicial resources, the justification for the Waltreus
rule retains continued, if not enhanced, power, and the rule has been cited consistently
and continuously since 1965 when In re Waltreus was first decided. (See, e.g., In re
Sakarias, supra, 35 Cal.4th at p. 145; In re Seaton (2004) 34 Cal.4th 193, 199; Marks
v. Superior Court (2002) 27 Cal.4th 176, 188; In re Gay (1998) 19 Cal.4th 771, 780,
fn. 4; In re Robbins, supra, 18 Cal.4th at p. 778, fn. 1; In re Harris, supra, 5 Cal.4th at
p. 824 et seq.; In re Jackson (1992) 3 Cal.4th 578, 586, fn. 2; In re Foss (1974) 10
Cal.3d 910, 930; In re Walker (1974) 10 Cal.3d 764, 781.)
We continued in In re Harris, supra, 5 Cal.4th 813, to describe the four
exceptions to the Waltreus rule. As we explained there, a petitioner can renew a legal
issue, despite having raised the issue unsuccessfully on appeal, in four circumstances:
(1) where the issue constitutes a fundamental constitutional error; that is, ―where the
claimed constitutional error is both clear and fundamental, and strikes at the heart of
the trial process‖ (Harris, at p. 834); (2) where the judgment of conviction was
rendered by a court lacking fundamental jurisdiction, described as ―an entire absence
50
of power to hear or determine the case, an absence of authority over the subject matter
or the parties‖ (Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 288; see
Harris, at p. 836 [citing Abelleira in support]);22 (3) where the court acted in excess
of its jurisdiction, such as when it imposes an illegal sentence (Harris, at pp. 838-
839); and (4) ―when there has been a change in the law affecting the petitioner‖ (id. at
p. 841).
In the present petition, petitioner raises numerous claims subject to the
Waltreus rule and for which no exception applies.23 Claim No. 8, in which he alleges
22 Abelleira gave these examples of situations in which a court fundamentally
lacks jurisdiction: ―A state court has no jurisdiction to determine title to land located
outside its territorial borders, for the subject matter is entirely beyond its authority or
power. [Citation.] A court has no jurisdiction to adjudicate upon the marital status of
persons when neither is domiciled within the state. [Citations.] A court has no
jurisdiction to render a personal judgment against one not personally served with
process within its territorial borders . . . . [Citation.] A court has no jurisdiction to
hear or determine a case where the type of proceeding or the amount in controversy is
beyond the jurisdiction defined for that particular court by statute or constitutional
provision. [Citation.]‖ (Abelleira v. District Court of Appeal, supra, 17 Cal.2d at
p. 288.)
23 To give the reader an idea of the scope of the problem, we note that in addition
to the double jeopardy argument raised in claim No. 8, which we address in depth
below, petitioner‘s habeas corpus petition alleges the following claims that, by his
own admission, were raised and rejected on appeal:
Claim No. 1 (lack of probable cause to arrest; see Memro II, supra, 11 Cal.4th
at pp. 838-843);
Claim No. 2 (his confession was coerced; Memro II, at pp. 822-827);
Claim No. 3 (illegal search of his apartment; Memro II, at pp. 846-847);
Claim No. 4 (invalid Miranda waiver; Memro II, at pp. 826-827);
Claim No. 6 (his second confession was tainted by his first confession; Memro
II, at pp. 834-835);
Claim No. 9 (court‘s failure in Memro I, supra, 38 Cal.3d 658, to decide
sufficiency of evidence of premeditation; Memro II, at p. 822);
Claim No. 10 (retrial violated double jeopardy because he was acquitted of
premeditation murder in Memro I; Memro II, at pp. 820-821);
Claim No. 12 (same claim as claim No. 10);
51
Claim No. 16 (admission of Cornejo‘s perjurious testimony at the Evid. Code,
§ 402 hearing; Memro II, at pp. 827-828);
Claim No. 17 (error under Pitchess v. Superior Court, supra, 11 Cal.3d 531;
Memro II, at pp. 829-832);
Claim No. 18 (destruction of police personnel records; Memro II, at pp. 829-
832);
Claim No. 19 (discovery violation; Memro II, at pp. 836-838);
Claim No. 24 (speedy trial violation; Memro II, at pp. 852-853);
Claim No. 27 (denial of motion to exclude police witnesses from courtroom;
Memro II, at p. 844);
Claim No. 28 (seizure of legal materials from petitioner‘s jail cell; Memro II, at
pp. 835-836);
Claim No. 29 (Cornejo‘s testimony violated petitioner‘s right to counsel
because he was a government agent when he questioned petitioner; Memro II, at pp.
827-828);
Claim No. 30 (denial of motion to renew suppression motion; Memro II, at pp.
844-845);
Claim No. 31 (denial of motion to sever counts; Memro II, at pp. 847-851);
Claim No. 32 (denial of motion for an in camera hearing on inconsistent
defenses; Memro II, at pp. 848-849, 851);
Claim No. 33 (denial of motion to substitute counsel; Memro II, at pp. 853-
859);
Claim No. 37 (Cornejo‘s testimony violated petitioner‘s Sixth Amend. rights;
Memro II, at pp. 827-828);
Claim No. 39 (failure to obtain waivers before counsel conceded guilt of Carl
Jr.‘s murder; (Memro II, at pp. 857-858);
Claim No. 40 (admission of postmortem photographs; Memro II, at pp. 865-
866);
Claim No. 41 (admission of photographs and magazines seized at petitioner‘s
home; Memro II, at pp. 864-865);
Claim No. 47 (failure to give CALJIC No. 2.91; Memro II, at pp. 868-869);
Claim No. 48 (failure to instruct on lesser offenses for lewd act; Memro II, at
pp. 870-873);
Claim No. 49 (failure to instruct jurors they must unanimously agree on nature
of lewd act; Memro II, at pp. 869-870);
Claim No. 56 (granting motion to waive jury for penalty trial; Memro II, at
p. 875);
Claim No. 57 (counsel‘s failure to inform petitioner of the defense strategy;
Memro II, at pp. 875-877);
Claim No. 58 (allowing petitioner to testify at the penalty phase without
cautioning him or admonishing the jury; Memro II, at p. 878);
52
his prosecution for murdering Carl Jr. constituted double jeopardy in violation of his
constitutional and statutory rights,24 is representative of the abusive nature of these
Claim No. 59 (failure to omit Pen. Code, § 190.3, factors (e) & (j) as mitigating
circumstances; Memro II, at p. 880);
Claim No. 60 (failure to instruct on elements of uncharged offense; Memro II,
at pp. 880-881);
Claim No. 61 (inadequacy of Pen. Code, § 190.3, factor (k) instruction; Memro
II, at p. 881);
Claim No. 62 (failure to instruct on consequences of jury deadlock at the
penalty phase; Memro II, at p. 882);
Claim No. 63 (refusal to instruct on lingering doubt; Memro II, at p. 883);
Claim No. 65 (improper denial of motion to modify the death verdict; Memro
II, at pp. 883-886);
Claim No. 66 (trial court improperly considered the probation report before it
ruled on the modification motion; Memro II, at p. 886);
Claim No. 67 (insufficient evidence petitioner killed Carl Jr. in the course of a
lewd act; Memro II, at pp. 861-862);
Claim No. 68 (insufficient evidence petitioner premeditated the killing of Carl
Jr. and Chavez; Memro II, at pp. 862-864);
Claim No. 70 (prosecutorial misconduct in failing to inform the defense the
prosecution would rely on a felony-murder theory; Memro II, at p. 869);
Claim No. 73 (comment on petitioner‘s failure to testify; Memro II, at pp. 873-
874);
Claim No. 80 (improper cross-examination of petitioner at the penalty phase;
Memro II, at pp. 878-879);
Claim No. 81 (inadequate notice of aggravating evidence; Memro II, at pp.
877-878).
In addition, to the extent claim No. 78, which alleges the prosecutor‘s
argument impermissibly shifted the burden of proof to petitioner, also alleges the
prosecutor impermissibly commented on petitioner‘s failure to testify, it, too, is barred
by the Waltreus rule. (Memro II, supra, 11 Cal.4th at pp. 873-874.) To the extent
claim No. 37, above, alleges counsel was ineffective, it is not barred by the Waltreus
rule. (See In re Robbins, supra, 18 Cal.4th at p. 814, fn. 34; People v. Mendoza Tello
(1997) 15 Cal.4th 264, 267.)
24 Fifth Amendment to the United States Constitution (―No person shall be . . .
subject for the same offense to be twice put in jeopardy of life or limb . . .‖); Benton v.
Maryland (1969) 395 U.S. 784 (federal double jeopardy clause applicable to the
states); People v. Gurule (2002) 28 Cal.4th 557, 646 (recognizing same); California
Constitution, article 1, section 15; Penal Code section 1023.
53
renewed claims. In petitioner‘s first trial, the prosecution relied on two theories to
support the charge of first degree murder: petitioner killed with premeditation and
deliberation, and he killed during the commission of a felony, i.e., a lewd and
lascivious act on a child (Pen. Code, § 288). In addition, the prosecution charged two
special circumstance allegations: multiple murder and felony murder, identifying the
aforementioned lewd act crime as the triggering felony. (Pen. Code, § 190.2, former
subd. (c)(3)(iv), (5), now see subd. (a)(3), (17)(E).) The trial court, sitting as the trier
of fact, convicted petitioner of two counts of first degree murder (victims Carl Jr. and
Chavez) and one count of second degree murder (victim Fowler), sustained a
multiple-murder special-circumstance allegation, but found the felony-murder (lewd
conduct with a child) special-circumstance allegation not true. (Memro I, supra, 38
Cal.3d at p. 666.) As noted above, we reversed the entire judgment due to a pretrial
discovery violation.
On retrial, the prosecution again charged petitioner with the first degree murder
of Carl Jr. and Chavez and the second degree murder of Fowler. For the retrial, the
prosecution charged petitioner with a multiple-murder special circumstance, but did
not reallege the lewd act felony-murder special-circumstance allegation. (Memro II,
supra, 11 Cal.4th at p. 811.) Regarding the theory of the murder, however, the
prosecution argued—as before—to the jury that petitioner had either premeditated and
deliberated Carl Jr.‘s murder or killed him while committing a lewd act, or both. (Id.
at p. 820.) A jury convicted petitioner on all counts.
On appeal to this court, petitioner claimed his prosecution for murdering
Carl Jr., presented to the jury in part on a felony-murder theory that he had committed
a lewd act on the victim, violated his double jeopardy rights because the trial court in
Memro I had found the felony-murder special circumstance untrue. We disagreed:
―Defendant was convicted of [Carl Jr.‘s] murder at his first trial. Retrying him on a
charge of murder did not place him twice in jeopardy for that offense. ‗ ―It has long
54
been settled . . . that the Double Jeopardy Clause‘s general prohibition against
successive prosecutions does not prevent the government from retrying a defendant
who succeeds in getting his first conviction set aside, through direct appeal or
collateral attack, because of some error in the proceedings leading to conviction.‖ ‘ ‖
(Memro II, supra, 11 Cal.4th at p. 821, quoting People v. Santamaria (1994) 8 Cal.4th
903, 910-911.)
Petitioner‘s petition, however, fails to reveal that the double jeopardy issue was
resolved against him on direct appeal. Raising this issue in the instant petition thus
directly implicates our rule in In re Waltreus, supra, 62 Cal.2d 218.25
The petition also fails to allege any facts suggesting the double jeopardy issue
falls within one of the narrow exceptions to the Waltreus rule, i.e., facts suggesting
the double jeopardy claim involves a fundamental constitutional error, or that the trial
court lacked fundamental jurisdiction, or that the court acted in excess of jurisdiction,
or that there has been a postappeal change in the law. (In re Harris, supra, 5 Cal.4th
at pp. 829-841.) Indeed, the allegations in the petition related to this claim read as if
the claim is being presented to the court for the very first time.
Just as a petitioner bears the burden in a habeas corpus petition to allege why
the petition is timely (In re Robbins, supra, 18 Cal.4th at p. 780 [regarding the
timeliness of the petition, ―the petitioner has the burden of establishing (i) absence of
substantial delay, (ii) good cause for the delay, or (iii) that the claim falls within an
exception to the bar of untimeliness‖]), the petitioner must also allege why a claim
25 Because petitioner failed to raise this issue in his first petition for a writ of
habeas corpus (In re Memro, S044437), the claim is procedurally barred for that
reason as well. (In re Clark, supra, 5 Cal.4th at pp. 774-775; In re Horowitz, supra,
33 Cal.2d at pp. 546-547.) In addition, because the facts underlying the claim were
known at the time of retrial in 1987, petitioner presents the claim after a substantial
and unexplained delay. (See In re Robbins, supra, 18 Cal.4th 770.) For purposes of
illustration, however, we will focus on the Waltreus issue.
55
raised and rejected on appeal is not barred by the Waltreus rule. Petitioner concedes
as much, noting in his traverse that, ―[a]s with all other procedural default exceptions,
[he] has the burden of establishing a prima facie case that the Waltreus bar does not
apply.‖ Yet the petition now before the court, despite its marked prolixity, is lacking
in any proper allegation satisfying this pleading burden.
Petitioner‘s only attempt in his petition to explain why he is raising the double
jeopardy issue again is his global prefatory statement, apparently designed to apply to
all procedurally barred claims but not made specifically applicable to claim No. 8,
that he ―has included all known claims of constitutional error related to his trial,
convictions, sentence and imprisonment for the sake of a clear presentation and so this
Court can assess the cumulative effect [of any errors] and determine that a
miscarriage of justice occurred. This includes claims that have been previously
presented.‖ (Italics added.) In his informal reply, petitioner asserts that he has
presented otherwise barred claims again ―for the purpose of incorporation into the
cumulative error claims, claims 140 through 143, and to exhaust the cumulative error
claims‖ for federal court purposes.
This purported ―cumulative error‖ explanation is patently inadequate, as
petitioner‘s global assertion does not satisfy his pleading burden. Indeed, claim No. 8
is misleadingly phrased as if it is being raised for the first time and not simply to be
considered in conjunction with other claims. We require a litigant seeking relief on
habeas corpus to ―state fully and with particularity the facts on which relief is sought‖
(People v. Duvall, supra, 9 Cal.4th at p. 474; see In re Swain, supra, 34 Cal.2d at pp.
303-304 [warning against ―vague, conclusionary allegations‖ in a habeas corpus
petition]), and this pleading requirement logically applies to explaining why a specific
claim is cognizable in the first place. Merely inserting a general, catchall allegation at
the beginning of a petition, asserting that all substantive claims (including
procedurally improper claims) are being raised anew, despite having been previously
56
considered in various forms and rejected by this court, to allow us to assess the
―cumulative effect‖ of all possible errors, fails to acknowledge that for those claims
previously rejected on appeal on their merits (as opposed to a lack of prejudice), we
have already concluded no error occurred. The petition does not explain how actions
or omissions by the prosecutor and/or the trial court that have been found not to be
error may later be aggregated to comprise a new claim that falls outside the Waltreus
rule. (See People v. Hovarter (2008) 44 Cal.4th 983, 1030 [―Having found no errors
and certainly no prejudicial ones,‖ appellate claim that the ―cumulative effect of the
errors‖ requires reversal rejected]); People v. McDermott (2002) 28 Cal.4th 946, 1005
[same].)
This affirmative pleading rule is similar to the rule followed in other states that
have a death penalty. For example, in order to gain postconviction relief under
Pennsylvania statutory law, ―the petitioner must plead and prove by a preponderance
of the evidence . . . [t]hat the allegation of error has not been previously litigated or
waived.‖ (42 Pa. Cons. Stat. § 9543(a)(3); see 3 Wilkes, State Postconviction
Remedies and Relief Handbook (2011) § 41:12, pp. 506-507 (Wilkes).) Similarly,
Texas requires that ―(a) If a subsequent application for writ of habeas corpus is filed
after final disposition of an initial application challenging the same conviction, a court
may not consider the merits of or grant relief based on the subsequent application
unless the application contains sufficient specific facts establishing that: [¶] (1) the
current claims and issues have not been and could not have been presented previously
in an original application or in a previously considered application filed under this
article because the factual or legal basis for the claim was unavailable on the date the
applicant filed the previous application; or [¶] (2) by a preponderance of the evidence,
but for a violation of the United States Constitution no rational juror could have found
the applicant guilty beyond a reasonable doubt.‖ (Tex. Code of Crim. Proc., art.
11.07, § 4(a); 4 Wilkes, supra, § 46:14, pp. 13-14.) In Florida, a postconviction
57
motion to vacate or set aside a sentence after conviction must state ―whether a
previous postconviction motion has been filed, and if so, how many,‖ as well as allege
―the reason or reasons the claim or claims in the present motion were not raised in the
former motion or motions.‖ (Fla. Rules of Crim. Proc., rule 3.850(c)(3), (4); 1
Wilkes, supra, § 12:3, p. 460.) The same Florida rule states specifically that the
motion must include this statement: ―This rule does not authorize relief based on
grounds that could have or should have been raised at trial and, if properly preserved,
on direct appeal of the judgment and sentence.‖ (Fla. Rules of Crim. Proc., rule
3.850(c); 1 Wilkes, supra, § 12:3, p. 460.)
In theory, the aggregate prejudice from several different errors occurring at
trial could require reversal even if no single error was prejudicial by itself. ―[A] series
of trial errors, though independently harmless, may in some circumstances rise by
accretion to the level of reversible and prejudicial error.‖ (See People v. Hill (1998)
17 Cal.4th 800, 844.) To the extent these errors are based on the appellate record,
however, a petitioner cannot wait and raise the cumulative error claim for the first
time on habeas corpus; he must raise the claim on appeal. (In re Dixon, supra, 41
Cal.2d at p. 759.) Alternatively, if a petitioner has a previously unraised claim based
on newly discovered evidence that was not reasonably discoverable at the time of trial
(or even the first habeas corpus petition), the cumulative prejudice flowing from that
single error, when combined with the prejudice from other errors already raised and
rejected on appeal for lack of individual prejudice, could rise to a level at which a
court could conclude the petitioner was denied a fair trial, even if no single error
required reversal. (In re Jones (1996) 13 Cal.4th 552, 583, and cases cited.) As
noted, claims previously rejected on their substantive merits—i.e., this court found no
legal error—cannot logically be used to support a cumulative error claim because we
have already found there was no error to cumulate.
58
But even admitting the possibility that a litigant could renew past claims
previously rejected solely for lack of prejudice, our consideration of a cumulative
error claim (or more precisely, a cumulative prejudice claim) does not require a
petitioner to restate the entirety of his appellate briefing. If petitioner has a new
claim, the exhaustion petition should state clearly what is factually or legally new, i.e.,
not presented before, either on appeal or in a previous petition. When evaluating an
exhaustion petition, we will assume nothing is new except what is clearly and
specifically identified as such. If a previously raised and rejected claim is being
reasserted as part of a cumulative prejudice claim, that fact should be made clear, not
obscured as it was in this case.
To add previously rejected claims to a new claim, petitioners should simply
raise their new claims, clearly identify them as ―new,‖ and then in a table or chart
accompanying the petition identify which appellate claims, previously denied for lack
of prejudice, are being reraised to support a cumulative prejudice claim. The table
should state where these prior claims appear in the petitioner‘s appellate briefs and
include citations to the part in our opinion where we rejected them. We anticipate this
table should not be longer than 10 pages and in many cases will be shorter. (See pp.
3-4, ante, and p. 112, post.)
Petitioners need not separately or specifically request judicial notice of all
documents connected with their past appeals and habeas corpus proceedings, as in
capital cases this court routinely consults prior proceedings irrespective of a formal
request. This rule will help streamline consideration of habeas corpus petitions in
capital cases and eliminate a potential trap for the unwary, as rules 8.252(a) and
8.520(g) of the California Rules of Court require, among other things, that requests
for judicial notice be served and filed under separate cover with a proposed order,
something petitioner did not do here.
59
We have examined petitioner‘s previous appeal in Memro II, supra, 11 Cal.4th
786, and have identified five appellate claims arguably denied for lack of prejudice
only. First, we determined that ―even if [trial] counsel were deficient for not
questioning each potential juror—an unlikely prospect—we cannot conclude that
defendant was prejudiced.‖ (Id. at p. 819.) Second, in responding to petitioner‘s
claim that following his first trial authorities improperly confiscated his personal legal
papers, we agreed with the trial court that presided over the retrial that ―even if there
was intentional interference with [petitioner‘s Sixth Amendment right to counsel],
[he] had been able to show no prejudice.‖ (Id. at p. 836.) Third, regarding
petitioner‘s claim that trial counsel was ineffective for failing to better brief the
suppression motion, we found the claim meritless because ―there was no reasonable
probability‖ of a different outcome had counsel submitted a better brief. (Id. at
p. 845.) Fourth, concerning the lawfulness of the search of petitioner‘s apartment, we
concluded any error was harmless in light of the overwhelming evidence of guilt. (Id.
at p. 847.) Fifth, we found the trial court‘s consideration of the probation report when
ruling on the motion to modify the verdict was harmless because it played no part in
the trial court‘s ruling. (Id. at p. 886.) Petitioner could theoretically reraise these
claims as part of a cumulative prejudice claim despite the Waltreus rule, arguing that
any prejudice flowing from those alleged errors, when combined with the alleged
prejudice resulting from any legitimately new claim, justifies relief. Such a claim,
however, would require careful pleading to make clear the prior claims were being
reraised not on their own behalf, but in support of a cumulative prejudice claim
comprised of the earlier claims and a legitimately new and timely claim of error.
Were we to reject such a properly pleaded cumulative prejudice claim, the rejection
would necessarily imply that we also reject a cumulative prejudice claim
encompassing any prior claims previously rejected on the merits and not solely for
lack of prejudice.
60
Instead of such pinpoint allegations, however, petitioner has reraised all prior
appellate claims en masse. In his words, he ―has included all known claims of
constitutional error related to his trial, convictions, sentence and imprisonment for the
sake of clear presentation and so this Court can assess the cumulative effect [of any
errors] and determine that a miscarriage of justice occurred.‖ (Italics added.) This
conception of cumulative prejudice, which incorporates all past claims including
those rejected on the merits, does not come within any exception to the Waltreus rule.
(See In re Harris, supra, 5 Cal.4th at pp. 829-841.)
Were we to accept petitioner‘s attempt to evade the Waltreus rule on the
proffered ground that reconsideration of all previously denied claims is necessary in
order to assess his cumulative prejudice argument, we would undermine the very
purpose of the rule. We reiterate that habeas corpus is an extraordinary remedy, a
safety valve for those unlikely and rare instances in which the usual trial and appellate
process proves inadequate to vindicate a defendant‘s right to a fair trial. Allowing a
litigant to repeatedly reopen his case would undermine the finality of criminal
judgments and denigrate society‘s legitimate expectation that judgments will be
carried out. We thus reject petitioner‘s cumulative prejudice argument as
procedurally deficient and also as lacking any basis evident in this petition.
After filing his petition, petitioner had two additional opportunities to allege
facts suggesting why he is entitled to renew a claim specifically rejected on appeal.
First, following the filing of the petition, the People highlighted in their informal
response that claim No. 8 alleging double jeopardy had been raised and rejected on
appeal; that is, that the claim was barred by the Waltreus rule. In his informal reply,
petitioner responded to the People‘s argument simply by repeating the assertion that
claim No. 8 was included ―for the purpose of incorporation into the cumulative error
claims, Claims 140 through 143, and to exhaust [those claims for purposes of federal
61
court review].‖ As noted above, this assertion fails to establish the cognizability of
the claim in a successive habeas corpus petition.
In the same informal reply, petitioner added the global assertion, with no
argument or factual allegations specific to claim No. 8 (or any other claim), that the
Waltreus rule does not apply because the claim comes within one of the narrow
exceptions to the rule described in In re Harris, supra, 5 Cal.4th at pages 829-841.26
The petition fails to allege which of the four exceptions applies or why any of them
might apply. As we have explained, the exceptions to Waltreus described in Harris
are narrow and require particular allegations; they are easy to allege, but difficult to
establish. (Harris, at p. 834 [―Where an issue was available on direct appeal, the
mere assertion that one has been denied a ‗fundamental‘ constitutional right can no
longer justify a postconviction, postappeal collateral attack . . .‖].) As neither the
petition nor the informal reply makes any attempt to allege facts suggesting one of the
Harris exceptions applies here, we ascribe no weight to these assertions, unadorned as
they are by factual allegations or legal argument.
Following issuance of the order to show cause in this case, the People filed a
return in which they again argued claim No. 8 was procedurally barred by the
Waltreus rule. In his traverse, petitioner renews his meritless argument that
reconsideration of the double jeopardy claim is necessary to evaluate his cumulative
prejudice claim. In addition—for the first time—he makes specific allegations that
claim No. 8 falls within several of the exceptions to the Waltreus rule, but as we
explain, his contentions are meritless.
Petitioner first alleges a change in the law has occurred since his appeal (In re
Harris, supra, 5 Cal.4th at p. 841) and that he has ―substantially altered‖ his double
26 Although this argument quite plainly references Waltreus, the argument resides
in a section of the brief addressing In re Dixon, supra, 41 Cal.2d 756, i.e., claims that
were not but should have been raised on appeal. (See discussion, post, pt. II.B.3.)
62
jeopardy claim to take advantage of this new authority. But he neither cites nor
discusses any new authority (that is, any authority decided after the finality of our
November 30, 1995, decision in Memro II, supra, 11 Cal.4th 786). Instead he merely
lists 12 appellate decisions in a long footnote and implies the cited authorities
constitute new authority, unavailable at the time of his appeal, supporting his claim.
This assertion is frivolous. All of the authorities he cites as demonstrating a change in
the law were cited in his opening brief on appeal in 1993 or in his reply brief on
appeal in 1994.27 The petition‘s allegations of a change in the law, allegedly bringing
his case outside the Waltreus rule, are grossly misleading. Petitioner has not
demonstrated a change in the law has occurred.
As a further exception to the Waltreus rule, petitioner contends his double
jeopardy claim constitutes a fundamental constitutional error. (In re Harris, supra, 5
Cal.4th at pp. 829-836.) We explained in Harris that the Waltreus rule did not apply
to errors that were ―both clear and fundamental, and strike[] at the heart of the trial
process.‖ (Harris, at p. 834.) To suggest how such claims differ from the quotidian
type of trial errors, we cited Arizona v. Fulminante (1991) 499 U.S. 279, 309, which
discusses errors amounting to a structural defect for which a harmless error
assessment is impossible (id. at pp. 308-310). Petitioner‘s renewed double jeopardy
claim does not rise to this level. Indeed, other than reasserting that his trial in Memro
II violated his double jeopardy rights, and that those rights find their genesis in the
United States Constitution, petitioner alleges no facts nor provides any argument why
27 Petitioner cites the following authorities, implying they constitute a change in
the law: United States v. Dixon (1993) 509 U.S. 688; Smalis v. Pennsylvania (1986)
476 U.S. 140; Richardson v. United States (1984) 468 U.S. 317; Bullington v.
Missouri (1981) 451 U.S. 430; Brown v. Ohio (1977) 432 U.S. 161; United States v.
Morrison (1976) 429 U.S. 1; Ashe v. Swenson (1970) 397 U.S. 436; Benton v.
Maryland, supra, 395 U.S. 784; Blockburger v. United States (1932) 284 U.S. 299;
People v. McDonald (1984) 37 Cal.3d 351; People v. Superior Court (Engert) (1982)
31 Cal.3d 797; People v. Asbury (1985) 173 Cal.App.3d 362.
63
this error is so serious and fundamental that we should entertain it now, after he failed
to take advantage of the opportunity before his retrial to plead ―[o]nce in jeopardy‖
(Pen. Code, § 1016) but then raised the legal issue on appeal (Memro II, supra, 11
Cal.4th at pp. 820-822). Legal counsel can generally plead some plausible
constitutional basis for any type of trial error, but this exception to the Waltreus rule is
reserved for those errors so serious and fundamental that setting aside the state‘s
weighty interest in the finality of criminal judgments would be justified. Petitioner‘s
allegations in this regard are wholly inadequate.
Aside from the Harris exceptions to the Waltreus rule, petitioner contends
generally in his traverse that he is entitled to present his double jeopardy claim a
second time because his appellate counsel‘s presentation of the issue on appeal was
―inadequate,‖ thereby violating his right to the effective assistance of appellate
counsel. This claim, too, is meritless. The claim of ineffective assistance of appellate
counsel (IAAC) does not raise the same substantive issue, but is instead a new,
independent claim (see In re Harris, supra, 5 Cal.4th at p. 833 [―claims of
‗fundamental‘ constitutional error come to this court clothed in ‗ineffective assistance
of counsel‘ raiment‖]), a point petitioner recognizes by raising an independent claim
of IAAC in claim No. 141. Assessing that independent claim requires the application
of settled law. ―[A] criminal defendant is guaranteed the right to effective legal
representation on appeal‖ (In re Sanders, supra, 21 Cal.4th at p. 715; see also In re
Smith (1970) 3 Cal.3d 192, 202-203 [―the inexcusable failure of petitioner‘s appellate
counsel to raise crucial assignments of error, which arguably might have resulted in a
reversal, deprived petitioner of the effective assistance of appellate counsel . . .‖]); to
be competent, appellate counsel must ― ‗prepare a legal brief containing citations to
the . . . appropriate authority, and set[] forth all arguable issues‘ ‖ (People v. Barton
(1978) 21 Cal.3d 513, 519, fn. omitted), but need not raise all nonfrivolous issues
(Sanders, at pp. 715-716, citing Jones v. Barnes, supra, 463 U.S. 745). Even if
64
petitioner could demonstrate his appellate attorney acted unreasonably, he must still
show prejudice. (Smith v. Robbins (2000) 528 U.S. 259, 285-286; In re Harris, supra,5 Cal.4th at p. 833.)
Assuming we could review the double jeopardy claim as reflected through a
claim of IAAC, the traverse‘s allegations fail both prongs of the foregoing test.
Petitioner first alleges appellate counsel failed to ―conduct a diligent review of the
appellate record,‖ ―identify triggering facts in the trial record,‖ identify the
―controlling law‖ applicable to the double jeopardy issue, investigate the claim based
on ―triggering facts outside the record,‖ and include the issue in the opening brief on
appeal. Most of these allegations are demonstrably untrue on their face. Appellate
counsel in fact raised the double jeopardy issue in the briefing before this court and
cited appropriate authority. To the extent petitioner now claims appellate counsel
failed to investigate the issue, he cites no facts suggesting what counsel did, what
counsel should have done, and what counsel would have found with a more vigorous
investigation. These pro forma allegations, which the petition apparently intends to
apply to all the Waltreus-barred claims, are inadequate.
Second, the petition includes no allegations regarding how petitioner was
prejudiced. Inasmuch as appellate counsel raised the double jeopardy issue on appeal,
petitioner is left with the argument that appellate counsel‘s presentation of the issue
was so inadequate that, had it been better presented, this court would have accepted it
and reversed the judgment. The petition makes no factual allegations approaching
such a claim. Accordingly, the claim that appellate counsel was constitutionally
ineffective is devoid of appropriate supporting allegations and thus cannot justify the
repetitive presentation of the issue here.
Petitioner adds several other meritless arguments why his double jeopardy
claim is, or should be, excepted from the Waltreus rule. First, he argues that reraising
the double jeopardy claim is necessary to exhaust it for federal court purposes. We
65
are unconvinced such duplicative briefing is necessary for exhaustion purposes.
―Before a state prisoner may file a federal petition for a writ of habeas corpus, the
petitioner must exhaust state court remedies by presenting all federal claims to the
highest state court.‖ (In re Marquez (2007) 153 Cal.App.4th 1, 13, italics added.)
Because this court—California‘s highest state court—has rejected the double jeopardy
issue on appeal, the claim is already exhausted for federal purposes. (In re Robbins,
supra, 18 Cal.4th at p. 815, fn. 34 [―Our imposition of the bar of Waltreus, in this
context, signals that the claim has been exhausted in timely fashion on appeal.‖];
Carter v. Giurbino (9th Cir. 2004) 385 F.3d 1194, 1198 [―If the claim barred from
relitigation by Waltreus has already been decided by the California Supreme Court,
that claim is properly exhausted for federal habeas corpus review. Thus, a citation to
Waltreus does not prevent federal habeas review.‖]; Fields v. Calderon (9th Cir.
1997) 125 F.3d 757, 762, fn. 5 [same]; cf. O’Sullivan v. Boerckel (1999) 526 U.S.
838, 845 [for federal exhaustion purposes, ―state prisoners must give the state courts
one full opportunity to resolve any constitutional issues by invoking one complete
round of the State‘s established appellate review process.‖].)
We note the United States Supreme Court has acknowledged that invocation of
the Waltreus rule when denying a claim means further state review of the claim is
precluded, and that federal courts will ― ‗look[] through‘ ‖ a Waltreus denial to
determine whether the federal issue was exhausted on the ―last reasoned decision‖ on
the merits, i.e., direct appeal. (Ylst v. Nunnemaker (1991) 501 U.S. 797, 804, fn. 3.)
In short, even if petitioner‘s ability to exhaust claims for federal purposes were a
reason to overlook a procedural default under state law, that purported justification
does not apply to claims barred by the Waltreus rule. (To the extent a petitioner
wishes to exhaust a procedurally defaulted claim, he or she should place it in a table
or chart accompanying the petition, along with a summary description of the issue.
(See pp. 3-4, ante.))
66
Second, petitioner contends this court should exercise its ―discretionary power
of review‖ to reconsider our prior denial of the double jeopardy issue. Even assuming
we have such power, the petition fails to explain why we should do so. Third,
petitioner contends renewal of the issue is justified because the current iteration of the
issue ―is more complete and detailed‖ than in prior pleadings or briefs. No doubt with
additional time, effort, thought and money, a previously raised issue might be more
clearly or persuasively articulated, but that is scant justification to undermine the
finality of a criminal judgment. Accepting that justification would lead to perpetual
renewals of claims with no judgment ever considered final. Fourth, petitioner
contends he has reraised the issue ―to provide context so that this Court may better
assess the prejudice stemming from the multitude of errors infecting petitioner‘s
capital proceedings.‖ We have already discussed this ―cumulative prejudice‖
justification and found it wanting; thus, on these pleadings, we reject the cumulative
prejudice justification for relitigating the same claim.
In sum, petitioner‘s claim that his prosecution for murder in Memro II, supra,
11 Cal.4th 786, constituted double jeopardy has been raised and rejected on appeal.
Because the habeas corpus petition falls short of demonstrating that this claim falls
within a recognized exception to the rule in In re Waltreus, supra, 62 Cal.2d 218,
prohibiting raising such claims on habeas corpus, this claim is barred by the Waltreus
rule. In addition, the petition alleges dozens of other claims we have determined were
similarly raised and rejected on appeal, and for which petitioner similarly fails to
allege sufficient facts showing the claim is excepted from the Waltreus rule (see fn.
23, ante), and a separate discussion of each of these claims would be fruitless. To
raise a multitude of Waltreus-barred claims without demonstrating those claims
qualify for an exception to the rule is an example of an abusive writ practice.
67
3. Dixon
Closely related to the Waltreus rule is the analogous one set forth in In re
Dixon, supra, 41 Cal.2d at page 759: ―[T]he writ [of habeas corpus] will not lie
where the claimed errors could have been, but were not, raised upon a timely appeal
from a judgment of conviction.‖ By insisting on presentation of claims on appeal if
reasonably possible, the Dixon rule speeds resolution of claims, avoids delay, and
encourages the finality of judgments. Prompt presentation on appeal makes sense
because the evidence is relatively fresh; ―[i]t would obviously be improper to permit a
collateral attack because of claimed errors in the determination of the facts after
expiration of the time for appeal when evidence may have disappeared and witnesses
may have become unavailable.‖ (Id. at p. 761.) Like the Waltreus rule, the Dixon
rule is consistent with the concept of habeas corpus as an extraordinary remedy
available in those infrequent and unusual situations in which regular appellate
procedures prove inadequate. In short, a litigant is not entitled to raise an issue on
habeas corpus after having failed to raise the same issue on direct appeal.
This rule is firmly established in law (People v. Abilez (2007) 41 Cal.4th 472,
536; In re Sakarias, supra, 35 Cal.4th at p. 169; In re Seaton, supra, 34 Cal.4th at
p. 199; In re Robbins, supra, 18 Cal.4th at p. 778, fn. 1; People v. Mendoza Tello,
supra, 15 Cal.4th at p. 267; In re Harris, supra, 5 Cal.4th at p. 825, fn. 3; People v.
Jones (1973) 9 Cal.3d 546, 556, fn. 7) and is subject to the same four exceptions that
apply to the Waltreus rule (Robbins, at p. 814, fn. 34, fifth par.; Harris, at p. 825,
fn. 3).
Petitioner raises numerous claims subject to the Dixon rule and for which no
exception applies.28 Claim No. 35 is representative of the claims now raised that are
28 By his own admission, petitioner concedes the following claims could have
been, but were not, raised on appeal:
Claim No. 11 (failure to charge lewd-conduct felony in support of felony-
murder charge);
68
Claim No. 12 (reliance on premeditation theory violated double jeopardy);
Claim No. 13 (reliance on felony-murder theory violated double jeopardy);
Claim No. 22 (written stipulation to be tried by court commissioner not
knowing and intelligent);
Claim No. 23 (commissioner was biased);
Claim No. 34 (commissioner‘s rejection of petitioner‘s request for high
security housing);
Claim No. 35 (commissioner‘s failure to order that petitioner be separately
transported to court);
Claim No. 36 (consideration of evidence from Cornejo, a fellow inmate);
Claim No. 37 (error in admitting Cornejo‘s testimony);
Claim No. 42 (confining petitioner in marked patrol car during jury view of
crime scene);
Claim No. 43 (improper shackling during trial);
Claim No. 44 (admission of photos of nude boys was improper character
evidence);
Claim No. 45 (admission of nude photos and magazines improperly allowed
conviction based on petitioner‘s status as a sufferer of mental illness);
Claim No. 72 (prosecutor committed misconduct during argument by
misstating the law);
Claim No. 74 (prosecutor committed misconduct during argument by taking
advantage of erroneous jury instructions);
Claim No. 75 (prosecutor committed misconduct during argument by
commenting on petitioner‘s sexuality);
Claim No. 76 (prosecutor committed misconduct during argument by arguing
erroneous definitions of second degree murder);
Claim No. 77 (prosecutor committed misconduct during argument by arguing
theories of murder prohibited by double jeopardy);
Claim No. 78 (prosecutor committed misconduct during argument by shifting
burden of proof onto petitioner, except to the extent this claim alleges impermissible
comment on petitioner‘s failure to testify);
Claim No. 79 (prosecutor committed misconduct during argument by making a
fleeting comment on retrial);
Claim No. 83 (prosecutor committed misconduct during penalty phase
argument by arguing theories of murder prohibited by double jeopardy);
Claim No. 84 (prosecutor committed misconduct during penalty phase
argument by repeating petitioner‘s stated wish that he wanted the death penalty);
Claim No. 101 (trial court failed to inquire into a possible conflict);
Claim No. 116 (trial court was biased during pretrial jury selection,
rehabilitating death-leaning jurors while summarily dismissing life-leaning jurors,
resulting in a jury biased in favor of the death penalty);
69
subject to the Dixon rule. In that claim, petitioner contends the trial court erred by
failing to order the sheriff to transport him to court proceedings separately from other
inmates who might be potential jailhouse snitches of questionable veracity.
Apparently concerned that Anthony Cornejo, a fellow jail inmate, would testify he
had overheard statements petitioner allegedly made while the two were together in a
sheriff‘s van being transported to the courthouse (see Memro II, supra, 11 Cal.4th at
Claim No. 117 (trial court improperly informed the jury there had been a
previous trial);
Claim No. 124 (failure to preserve a complete appellate record);
Claim No. 125 (this court failed to provide a meaningful appeal, committing
numerous legal and factual errors in deciding the appeal).
In addition, we have determined presentation of the following claims are also
precluded by the Dixon rule:
Claim No. 50 (trial court‘s failure to instruct on shackling);
Claim No. 51 (instructing the jury sua sponte to presume petitioner‘s
confession was voluntary);
Claim No. 52 (instructing the jury to presume petitioner‘s confession was
voluntary improperly vouched for a prosecution witness);
Claim No. 53 (failure to instruct that the Fowler murder could be second
degree at most);
Claim No. 54 (instructing with CALJIC No. 8.31 unconstitutionally reduced
the People‘s burden of proof);
Claim No. 55 (instructing with CALJIC No. 8.75 was misleading);
Claim No. 64 (failure to instruct the jury to disregard CALJIC No. 1.00 at the
penalty phase);
Claim No. 82 (prosecutor committed misconduct during penalty phase
argument by misstating the definition of reasonable doubt);
Claim No. 85 (alleged falsification of Sergeant Carter‘s notes; see pt. II.B.5.,
post);
Claim No. 110 (failure to instruct that the jury could consider lingering doubt);
Claim No. 115 (juror misconduct, based on a juror‘s responses on voir dire);
Claim No. 126 (failure of then Chief Justice Lucas to recuse himself based on
his support for gubernatorial candidate Daniel Lungren, who was then Attorney
General and thus opposing counsel on appeal);
To the extent claim Nos. 42, 44, 78, 79, 85 and 110 allege counsel was
ineffective, they are not barred by the Dixon rule. (See In re Robbins, supra, 18
Cal.4th at p. 814, fn. 34; People v. Mendoza Tello, supra, 15 Cal.4th at p. 267.)
70
p. 825), trial counsel moved to have petitioner transported separately so as not to have
contact with certain inmates known to be informers. The court granted the request for
the next hearing date, ordering ―special transportation,‖ but did not promise to
establish separate transportation for all future court dates. When counsel later
renewed the request and sought to have petitioner brought to the courthouse in a van
that did not include certain inmates, the court noted the logistical problems with that
proposal and ruled its previous order (granting special transportation for Dec. 5, 1987,
only) would remain in effect. When defense counsel renewed the request a second
time at a later hearing, the court denied it.
The facts supporting this claim are fully spread upon the appellate record, yet
the petition provides no reason why this issue could not have been raised on appeal.
Indeed, the allegations associated with this claim betray no awareness that the issue
should have been raised on appeal or that the claim is procedurally barred by the
Dixon rule. To the extent the petition and the traverse rely on the general allegation
that ―all known claims of constitutional error‖ have been raised ―so this Court can
assess the cumulative effect [of all errors] and determine that a miscarriage of justice
occurred,‖ it fails for the same reason previously discussed in connection with the
Waltreus rule. Such issues may be raised on habeas corpus in only two limited
circumstances: (a) by coming within an exception to the Dixon rule (In re Harris,
supra, 5 Cal.4th at pp. 825, fn. 3, 829-841); or (b) derivatively through a claim of
IAAC, which requires a showing of appellate counsel‘s deficient performance and
resulting prejudice (id. at p. 833 [applying Strickland v. Washington, supra, 466 U.S.
668, ―to measure the performance of appellate counsel‖]; Smith v. Robbins, supra,
528 U.S. at pp. 285-286 [same]). There is no general cumulative prejudice exception
to the Dixon rule.
Petitioner first addresses the Dixon rule in a more particularized way in his
informal reply brief. There he raises a number of purported justifications for his
71
failure to raise claim No. 35 on appeal. First, he asserts that if we find the claim falls
within the Dixon rule, we should find it also falls within an exception to the rule
because the violation is ―clear and fundamental‖ and ―strike[s] at the heart of the trial
process.‖ Even were we to conclude this allegation invokes one of the recognized
exceptions to the Dixon rule, it is much too vague and nonspecific; missing from the
petition are factual allegations suggesting why the sheriff‘s arrangements for
transporting petitioner from the jail to court undermined his fundamental
constitutional rights. We reiterate that conclusory allegations without specific factual
allegations do not warrant relief. (People v. Duvall, supra, 9 Cal.4th at p. 474.)
Second, petitioner alleges the Dixon rule is inapplicable because claim No. 35
is based on ―significant evidentiary materials not found within the record on appeal.‖
Specifically, he argues this claim, as alleged in the petition, ―refers to numerous
matters outside the record, including problems between petitioner and Anthony
Cornejo, as well as the procedures for transporting prisoners employed by the Los
Angeles County Sheriff‘s Office.‖ The argument is specious. The purportedly new,
nonrecord material is not ―significant,‖ and the extrarecord matters on which
petitioner relies are not ―numerous.‖ The petition itself cites nothing but the record
on appeal, and that Cornejo was considered a snitch was mentioned prominently to
the trial court. The petition fails to allege any new facts unknown at the time of trial,
and petitioner has not submitted any new documentary evidence in support of this
claim. Even had petitioner submitted new supporting evidence, such evidence would
not bring the case outside the Dixon rule unless it was both unavailable at the time of
trial and significant in scope. ―When a petitioner attempts to avoid the bars of Dixon,
supra, 41 Cal.2d 756, or Waltreus, supra, 62 Cal.2d 218, by relying upon an exhibit
(in the form of a declaration or other information) from outside the appellate record,
we nevertheless apply the bar if the exhibit contains nothing of substance not already
72
in the appellate record.‖ (In re Robbins, supra, 18 Cal.4th at p. 814, fn. 34.)29 In any
event, any new evidence—that is, evidence that was not presented to the trial court—
would not undermine the trial court‘s ruling, and would instead be relevant, if at all, to
a claim of ineffectiveness of trial counsel.
In his traverse, petitioner argues for the first time that claim No. 35 should be
excused from application of the Dixon rule because his appellate counsel was
constitutionally ineffective for failing to raise the issue on appeal. We usually would
find this contention procedurally improper for having been raised for the first time in
the traverse (see discussion, ante, at pp. 25-26, fn. 15), but in any event it fails on its
merits. As noted above, criminal defendants are guaranteed the right to effective legal
representation on appeal, but counsel need not raise all nonfrivolous issues in order to
be deemed competent. (In re Sanders, supra, 21 Cal.4th at pp. 715-716.) Even if
29 Claim No. 22 is a good example of an unsuccessful attempt to bolster a barred
claim with allegedly ―new‖ evidence. That claim alleges petitioner‘s trial by a court
commissioner instead of a superior court judge was improper under the California
Constitution, and that his written stipulation to allow a commissioner to try his case
was not a valid waiver of his rights. As his written waiver appears in the appellate
record, and his then trial attorney, in a pretrial hearing, informed Judge Long that ―I
. . . have a stipulation that‘s been signed by [petitioner] for all purposes to have [the
case] sent to Commissioner Torribio,‖ this is an issue that normally should have been
raised at trial and on appeal. (After petitioner‘s trial was held, this court decided that
counsel could properly waive a criminal defendant‘s right to be tried by a judge and
agree to trial by a court commissioner, even in a capital case. (In re Horton (1991) 54
Cal.3d 82.))
In his informal reply, however, petitioner supports claim No. 22 with portions
of a declaration by psychiatrist George Woods, M.D., who opines that petitioner
suffered from a mental illness at the time of trial, and this illness prevented petitioner
from rationally assisting in his own defense. The petition fails to explain, however,
why trial counsel could not have obtained Dr. Woods‘s declaration in time to present
the claim at the time of trial. As a litigant can usually find additional expert evidence
after trial given more time and money, the mere fact petitioner now has an expert
willing to give an opinion that petitioner was mentally ill during his retrial in 1987 is
insufficient to bring this claim outside the Dixon rule.
73
petitioner can demonstrate his appellate attorney acted unreasonably, he must still
show prejudice. (Smith v. Robbins, supra, 528 U.S. at pp. 285-286.)
The traverse suggests petitioner has no facts available that, even if proved,
would demonstrate appellate counsel‘s failure to raise claim No. 35 on appeal was
ineffective in the constitutional sense. With regard to whether appellate counsel
failed to perform diligently, petitioner globally asserts that ―appellate counsel
performed ineffectively by failing to identify, investigate, and develop potentially
meritorious appellate claims despite the suggestion of triggering facts in the record.‖
Petitioner includes a declaration from his appellate attorney, who declares he did not
consider the factual basis of claim No. 35, that he would have included the claim in
his opening brief on appeal had he done so, and that he had no strategic or tactical
reason for omitting it. A second declaration by a criminal appellate law specialist
echoes the point, concluding claim No. 35 would have been raised on appeal by
competent counsel. Both attorney declarants aver that claim No. 35 is a potentially
meritorious legal issue; in his traverse, petitioner asserts the claim is ―more than
potentially meritorious.‖ (Italics added.)
Missing is any demonstration why claim No. 35 is potentially meritorious.
Petitioner cites no authority for the proposition that fear of false testimony from a
jailhouse snitch entitles a prisoner, as a matter of statutory or constitutional law, to
special and individual transportation accommodations, or that the trial court abused its
discretion in failing to order the sheriff to provide such special transportation to
petitioner. Petitioner‘s primary concern was with fellow jail inmate Anthony Cornejo
and, although Cornejo testified in an Evidence Code section 402 hearing concerning
the voluntariness of petitioner‘s confession, Cornejo did not otherwise testify at trial
to statements he allegedly overheard petitioner make in the sheriff‘s transportation
van. Accordingly, even were we to assume appellate counsel should have raised
claim No. 35 on appeal, and remembering that defendant had confessed to police that
74
he killed Fowler, Chavez, and Carl Jr. (Memro II, supra, 11 Cal.4th at pp. 813-815),
the allegations and argument before this court plainly fail to demonstrate a
―reasonable probability‖ that, but for his appellate counsel‘s unreasonable failure to
raise the issue, petitioner would have prevailed on appeal (Smith v. Robbins, supra,
528 U.S. at pp. 285-286). Petitioner‘s contention that he may avoid the Dixon rule by
resurrecting claim No. 35 now as a claim appellate counsel was ineffective is thus
revealed as baseless.
We have examined the balance of the claims listed in footnote 28, ante, and
reach the same conclusion regarding petitioner‘s global IAAC claim. That is, even
assuming appellate counsel was remiss in failing to raise the listed issues on appeal,
he was not constitutionally ineffective because it is not reasonably probable that, had
any or all of those issues been raised on appeal, petitioner would have succeeded in
obtaining a reversal. Accordingly, petitioner cannot avoid the Dixon rule due to
IAAC.
To the extent petitioner claims he is entitled to raise claims otherwise barred by
the Dixon rule so as to exhaust them for federal habeas corpus purposes, we reject that
claim as well. Unlike the same claim raised in connection with the Waltreus bar (In
re Waltreus, supra, 62 Cal.2d at p. 225), these claims were not previously raised and
thus were not actually exhausted. But our procedural rules applicable to habeas
corpus petitions exist to implement policies independent from those animating the
exhaustion requirements of the federal courts.30 If a petitioner desires to seek redress
30 As we have explained, our procedural rules are designed to regularize the
postconviction review process, upholding the finality of judgments while leaving
open a safety valve for the presentation of legitimate claims. By contrast, the federal
exhaustion requirement ―is grounded in principles of comity and reflects a desire to
‗protect the state courts‘ role in the enforcement of federal law,‘ [citation]. In
addition, the requirement is based upon a pragmatic recognition that ‗federal claims
that have been fully exhausted in state courts will more often be accompanied by a
complete factual record to aid the federal courts in their review.‘ [Citation.] Codified
75
in the federal courts, he or she can exhaust state claims by raising record-based claims
at trial and on appeal, and nonrecord-based claims in a first state habeas corpus
petition. Were we to allow the presentation of claims piecemeal and without limit
merely to facilitate a prisoner‘s desire to seek relief in the federal courts, we would
fatally undermine this state‘s substantial interest in the finality of its criminal
judgments. We thus reject the claim that a desire to exhaust a claim for federal court
purposes constitutes an exception to the Dixon rule.
In sum, petitioner‘s claim that the trial court erred by failing to order special
transportation from the jail to the courtroom, raised as claim No. 35 in his habeas
corpus petition, could have been, but was not, raised on appeal. Neither the habeas
corpus petition, nor the informal reply or traverse offers any reason why this claim
falls within a recognized exception to the rule in In re Dixon, supra, 41 Cal.2d 756,
prohibiting raising such claims on habeas corpus. This claim is thus barred by the
Dixon rule. As noted, the petition alleges dozens of other such claims we have
determined could similarly have been raised on appeal, and for which petitioner
similarly fails to allege sufficient facts showing the claim is excepted from the Dixon
rule. (See fn. 28, ante.) A separate discussion of each of these claims is unnecessary.
To raise a multitude of Dixon-barred claims without making a plausible attempt to
demonstrate that those claims qualify for an exception to the rule is an example of an
abusive writ practice.
4. Miller
Another basic rule applicable to habeas corpus petitions was articulated in a
―By the Court‖ opinion 60 years ago in In re Miller, supra, 17 Cal.2d 734. At issue in
Miller was a petition for a writ of habeas corpus raising the same legal grounds that
since 1948 . . . , the exhaustion rule, while not a jurisdictional requirement [citation],
creates a ‗strong presumption in favor of requiring the prisoner to pursue his available
state remedies.‘ ‖ (Castille v. Peoples (1989) 489 U.S. 346, 349, fn. omitted.)
76
had been raised and rejected in a prior habeas corpus petition. Our resolution of the
claims, and the explanation of our disposition, was brief: ―The prior petition was
denied on May 25, 1936, and since that time no change in the facts or the law
substantially affecting the rights of the petitioner has been disclosed. [¶] The petition
is denied.‖ (Id. at p. 735.) The Miller rule is now, and for many years has been, black
letter law applicable to habeas corpus petitions in this state: ―It is, of course, the rule
that a petition for habeas corpus based on the same grounds as those of a previously
denied petition will itself be denied when there has been no change in the facts or law
substantially affecting the rights of the petitioner.‖ (In re Martin (1987) 44 Cal.3d 1,
27, fn. 3, citing Miller; see also In re Robbins, supra, 18 Cal.4th at p. 778, fn. 1, citing
Miller with approval; In re Clark, supra, 5 Cal.4th at p. 767 [same]; In re Rodriguez
(1975) 14 Cal.3d 639, 654, fn. 18 [same]; In re Lynch (1972) 8 Cal.3d 410, 439, fn.
26 [same]; In re De La Roi (1946) 28 Cal.2d 264, 275 [same].)
Like the rule in In re Waltreus, supra, 62 Cal.2d 218, the Miller rule
recognizes that a litigant should raise a claim at the earliest practicable opportunity,31
and cannot—without persuasive justification—keep returning to the court for second
and third bites of the same piece of fruit. ― ‗In this state a defendant is not permitted
to try out his contentions piecemeal by successive proceedings attacking the validity
of the judgment against him.‘ ‖ (In re Clark, supra, 5 Cal.4th at p. 768, quoting In re
Connor (1940) 16 Cal.2d 701, 705.) To hold otherwise would undermine society‘s
strong and legitimate interest in the finality of its criminal judgments.
Although the Miller rule precludes successive habeas corpus petitions raising
the same issue, it is subject to the narrow exceptions set forth in In re Clark, supra, 5
Cal.4th at pages 797-798. Thus, petitioner can avoid the preclusive effect of the
31 Indeed, absent unusual circumstances, a repetitive claim—that is, a claim
already rejected in a previous habeas corpus petition—is by its nature an untimely
claim.
77
Miller rule if he can allege facts showing that a claim implicates a fundamental error
of constitutional magnitude, that he is actually innocent, that the jury was presented
with a grossly misleading profile of him at the penalty phase, or that he was convicted
or sentenced under an invalid statute. A claim of ineffective assistance of prior
habeas corpus counsel may also excuse compliance with the Miller rule. (Clark, at
p. 780.)
Petitioner raised 12 major claims and some subclaims in his first habeas corpus
petition, which we denied in its entirety in 1995, signaling we found no merit to any
of the claims. He now reraises 20 claims and subclaims previously denied.32 Claim
32 Petitioner concedes he has included in his present petition all 12 of the issues
raised and rejected in connection with his 1995 habeas corpus petition. They are:
Claim No. 7 (denial of bail; In re Memro on Habeas Corpus, S044437 (Memro
III), claim No. XXIII);
Claim No. 15 (prosecution‘s use of jailhouse snitch testimony; Memro III, claim
No. XV);
Claim No. 16 (prosecution‘s use of Cornejo‘s testimony; Memro III, claim No.
XVII);
Claim No. 18 (destruction of police records; Memro III, claim No. XIV);
Claim No. 19 (failure to disclose 400 pages of discovery; Memro III, claim No.
XII);
Claim No. 20 (failure to disclose benefits to jailhouse snitches; Memro III, claim
No. XVI);
Claim No. 21 (failure to disclose impeachment evidence for witness Bushea;
Memro III, claim No. XVIII);
Claim No. 25 (denial of fair suppression hearing on retrial; Memro III, claim No.
XIX);
Claim No. 26 (denial of fair suppression hearing in first trial; Memro III, claim
No. XX);
Claim No. 30 (failure to relitigate suppression motion; Memro III, claim No.
XXI);
Claim No. 121 (lack of available mitigating evidence; Memro III, claim No.
XXII);
Claim No. 122 (falsification of Sergeant Carter‘s notes, as discussed at
pt. II.B.5.; Memro III, claim No. XIII).
78
No. 21 exemplifies the claims subject to the Miller rule. That claim involves the
testimony of prosecution witness Scott Bushea. Like victims Fowler and Chavez,
Bushea was himself just 10 or 12 years old at the time of the murders. Bushea
testified at petitioner‘s retrial that he was in John Anson Ford Park the night Fowler
and Chavez were murdered in 1976, and he remembered seeing the victims in the
presence of two adult men. Petitioner alleges the prosecution committed Brady
error33 by failing to disclose to the defense that in 1984, eight years after petitioner‘s
crimes against Fowler and Chavez but a few years before petitioner‘s retrial, Bushea
pleaded guilty to two felonies related to his molestation of a five-year-old child.
Petitioner contends the prosecution‘s failure to disclose this impeaching information
deprived him of due process of law and a fundamentally fair trial.
In addition to those claims petitioner concedes were raised and rejected in
connection with his first habeas corpus petition, these additional claims were also
rejected there:
Claim No. 17 (failure to provide Pitchess discovery due to destruction of
records; Memro III, claim No. XIV);
Claim No. 24 (speedy trial; Memro III, claim No. XXII.G);
Claim No. 29 (failure to exclude Cornejo‘s testimony at suppression motion;
Memro III, claim No. XVII, pp. 24-25);
Claim No. 37 (error in admitting testimony from Cornejo; Memro III, claim No.
XVII, pp. 24-25);
Claim No. 86 (ineffective assistance of counsel for failing to investigate and
present evidence of alternative suspects; Memro III, claim No. XXII.E);
Claim No. 93 (ineffective assistance of counsel for failing to raise speedy trial
claim; Memro III, claim No. XXII.G);
Claim No. 100 (counsel‘s conflict of interest; Memro III, claim No. XXII.C);
Claim No. 120 (lack of access to competent mental health expert; Memro III,
claim No. XXII.A).
Although some of these claims are supported by allegations of additional
evidence not considered in conjunction with the first petition, the petition either fails
to demonstrate the additional evidence was newly discovered or fails to specifically
tie the evidence to a claim of ineffective assistance of counsel.
33 Brady v. Maryland (1963) 373 U.S. 83. See also United States v. Bagley
(1985) 473 U.S. 667.
79
Petitioner unsuccessfully raised this claim in his first habeas corpus petition in
this court. Although the present habeas corpus petition vaguely admits raising some
claims ―that have been previously presented‖ in order to permit an assessment of the
cumulative prejudice flowing from the errors, this allegation fails for the reasons
previously discussed. (See discussion, ante, pt. II.B.2.) To the extent a petitioner has
reason to believe a claim was denied in connection with a previous habeas corpus
petition not on the substantive merits but for lack of prejudice only, he may include
such issues in a table or chart accompanying a later petition, clearly identifying the
issue and where it was previously raised. (See pp. 3-4, ante.) This court will then
consult its prior disposition to determine if our previous resolution of the issues is
relevant to a current claim of cumulative prejudice.
Although petitioner asserts his reiteration of previously denied claims is
justified by past inadequate funding for investigation (see In re Gallego, supra, 18
Cal.4th at p. 835, fn. 8), we reject the contention. These allegations of inadequate
funding are prefatory to the entire petition and are not specifically tied to the 20
claims and subclaims subject to the Miller rule. Gallego requires the pleading of
specific facts showing that a petitioner ―reasonably failed to discover the additional
information—as a result of a denial of a request for funds to investigate the claim.‖
(Gallego, at p. 835, fn. 8.) A global claim that a general lack of funds led to an
overall inability to find all claims is manifestly insufficient.
In his informal reply, petitioner asserts claim No. 21 comes within another
exception to the Miller rule, stating generally that he is ―resubmitting many claims
pursuant to respondent‘s arguments in federal court, and the subsequent rulings of the
District Court, which questioned the exhausted nature of these claims.‖ (Italics
added.) The assertion fails for two reasons. First, he has not filed copies of the
federal court‘s order or a transcript of the hearing; accordingly, he has failed to file
―reasonably available documentary evidence‖ (People v. Duvall, supra, 9 Cal.4th at
80
p. 474) in support of his allegation that the federal court found ―these‖ claims
unexhausted. (See p. 3, ante [judicially declaring a rule of criminal procedure
requiring petitions to identify which claims were deemed by the federal court to be
exhausted, and which were not, and to support those allegations with a copy of proof
such as the federal court‘s order].) Second, even were petitioner‘s desire to exhaust
his state court remedies as a prerequisite to his federal proceeding an exception to the
Miller rule (which it is not), because this claim was specifically denied in connection
with petitioner‘s first habeas corpus petition, petitioner has already provided this court
with one ―fair opportunity to act on [his] claims.‖ (O’Sullivan v. Boerckel, supra, 526
U.S. at p. 844.) The claim is thus already exhausted.
Petitioner‘s attempt to come within one of the four exceptions recognized in In
re Clark, supra, 5 Cal.4th at pages 797-798 (i.e., a constitutional error that led to a
fundamentally unfair trial, actual innocence, a grossly misleading profile of petitioner
that led to imposition of the death penalty, or conviction or sentencing under an
invalid statute) also fails because he does not explain how claim No. 21 satisfies any
of those four narrow exceptions. We reach the same conclusion with regard to his
unadorned and unexplained assertions of ineffective assistance of counsel (Clark, at
p. 780); petitioner merely states these exceptions in conclusory terms and fails to state
any facts, tied to a specific claim, demonstrating prior habeas corpus counsel was in
fact ineffective, or what prior habeas corpus counsel did to investigate these claims.
We repeat that conclusory allegations are inadequate to satisfy his pleading burden.
(People v. Duvall, supra, 9 Cal.4th at p. 474.)
In his traverse, petitioner raises additional explanations for reraising claims
denied in his first habeas corpus proceeding. The arguments are meritless. He first
contends his claims are excepted from the Miller rule because he has ―significantly
developed the legal and factual bases for three claims previously raised in the first
petition.‖ (Italics added.) This of course leaves no explanation for the other 17
81
claims and subclaims this court rejected in 1995, including claim No. 21. Moreover,
the additional legal authority petitioner cites mostly predates the first petition in 1995
(meaning it was available at the time he filed his first petition), none even marginally
changes the analysis, and the allegedly new factual bases for these claims are
similarly inconsequential. Merely alleging some new facts to support a previously
rejected claim will not avoid the Miller bar, as most counsel, with additional time,
effort and money, can often find some additional facts related to a claim. Such
additional facts, to qualify as an exception to the Miller rule, must either be newly
discovered (that is, not actually known and could not have been discovered with due
diligence) or specifically tied to a claim of ineffective assistance of counsel.
In his traverse, petitioner revives his assertion, first raised in summary fashion
in his informal reply, that prior habeas corpus counsel was constitutionally ineffective
for failing to investigate claim No. 21. He contends that prior counsel‘s performance
was ―materially deficient‖ in that he failed to adequately investigate the claim,
discover triggering facts, and raise the issue in the first petition. To impugn the
professionalism of one‘s prior attorney is of course easy, but because prior habeas
corpus counsel in fact raised claim No. 21 in 1995, we should now expect allegations
showing why prior counsel‘s investigation was unreasonable and what new facts
present counsel have discovered. Instead, the traverse merely alleges in conclusory
fashion that prior habeas corpus counsel was ineffective, with no supporting factual
allegations. That a comparison of the petition first habeas corpus counsel filed in
1995 (S044437) with the present petition (S124660) reveals claim No. 21 in the
present petition is virtually a word-for-word repetition of claim No. XVIII in that
earlier petition is telling.
In short, present counsel have essentially copied this issue from the prior
petition and relabeled it as claim No. 21, arguing both that they have new law and
new facts supporting the claim and that petitioner is entitled to reraise the issue
82
because prior counsel was ineffective. These assertions are demonstrably false, and
this unexplained repackaging of a prior claim suggests present habeas corpus counsel
have acted in disregard of their duty ―never to seek to mislead the judge or any
judicial officer by an artifice or false statement of fact or law.‖ (See Bus. & Prof.
Code, § 6068, subd. (d).)
The traverse‘s final arguments—that failure to allow repetitive claims will
result in a miscarriage of justice, and that renewal of claim No. 21 is necessary to
assess cumulative prejudice—fail to state an exception under In re Clark, supra,5 Cal.4th at pages 797-798. Such explanations, were we to accept them, would
completely undermine the Miller rule (In re Miller, supra, 17 Cal.2d at p. 735), allow
unending litigation, and thus be inconsistent with society‘s strong interest in the
finality of its criminal judgments.
In sum, neither the petition, the informal reply, nor the traverse states sufficient
allegations showing claim No. 21 falls within a recognized exception to the Miller
rule. We have examined the remaining 19 claims subject to the Miller rule and find
the same analysis applies to those claims as well. To raise so many Miller-barred
claims without making a plausible attempt to demonstrate that those claims qualify for
an exception to the rule is an example of an abusive writ practice.
5. Clark/Horowitz
In addition to the 20 claims and subclaims that have already been raised and
rejected in connection with petitioner‘s 1995 habeas corpus proceeding, petitioner
raises several claims that could have been raised in that prior proceeding because
their factual basis was known at the time he filed that first petition. This court has
long considered such claims improper. As we explained in In re Horowitz, supra, 33
Cal.2d at pages 546-547: ―[A]s to the presentation of new grounds based on matters
known to the petitioner at the time of previous attacks upon the judgment, in In re
83
Drew[, supra,] (1922) 188 Cal. [at p.] 722, it was pointed out that the applicant for
habeas corpus ‗not only had his day in court to attack the validity of this judgment,
but . . . had several such days, on each of which he could have urged this objection,
but did not do so‘; it was held that ‗The petitioner cannot be allowed to present his
reasons against the validity of the judgment against him piecemeal by successive
proceedings for the same general purpose.‘ ‖
We addressed the Horowitz rule more recently in In re Clark, supra, 5 Cal.4th
at page 768, explaining that we have ―refused to consider newly presented grounds for
relief which were known to the petitioner at the time of a prior collateral attack on the
judgment. [Citations.] The rule was stated clearly in In re Connor, supra, 16 Cal.2d
701, 705: ‗In this state a defendant is not permitted to try out his contentions
piecemeal by successive proceedings attacking the validity of the judgment against
him.‘ ‖
Petitioner raises dozens of claims whose factual bases were known at the time
he filed his first habeas corpus petition in 1995. Claim No. 85 is a good example. It
alleges that Sergeant Lloyd Carter of the South Gate Police Department prepared ―[a]t
least 11 pages of notes‖ relevant to the crimes and that, although the notes were
subject to the trial court‘s continuing discovery order, they were not disclosed to trial
counsel during the first trial or in time to be of use at the suppression hearing held
during retrial. According to the petition, ―[t]he notes were first made available to
petitioner and his counsel at the retrial,‖ and Sergeant Carter used the notes to refresh
his recollection during his testimony. The petition suggests the notes were not
prepared contemporaneously with the initial investigation, thus permitting the officer
time for reflection and embellishment. The petition also claims the notes ―falsely
enhanced‖ Sergeant Carter‘s credibility before the jury and that counsel was
constitutionally ineffective for failing to examine the notes.
84
Petitioner alleged in his first habeas corpus petition in 1995 that Sergeant
Carter testified falsely when he claimed to have made the notes at the time of the
criminal investigation; we denied that claim on the merits. Petitioner has now
reconfigured and reframed the same claim to allege trial counsel was ineffective both
for failing to examine the notes and because counsel should have ―obtain[ed] expert
testimony as to the date on which the notes were likely to have been written.‖ But, as
is clear, the facts underlying the claim—that Sergeant Carter allegedly did not prepare
his notes at the time of the initial investigation of the crimes—were known at the time
of the retrial. In fact, defense counsel cross-examined Sergeant Carter about his notes
and when he made them. The ineffective assistance issue could thus have been raised
in petitioner‘s first habeas corpus petition.
The present petition fails to address the Clark/Horowitz rule for claim No. 85
(or for any other claim) other than to rely on its global assertion at the beginning of
the petition that ―all known claims‖ have been included ―for the sake of clear
presentation‖ so as to permit this court to ―assess the cumulative effect‖ of the errors
in this case. We have already discussed the inadequacy of this purported justification
in detail with respect to the Waltreus, Dixon and Miller rules, and will not reiterate it
here.
Petitioner‘s informal reply alleges nothing to justify the belated assertion of
claim No. 85. Prompted by our order to show cause, the traverse is somewhat more
specific, but similarly fails to justify the piecemeal presentation of the claim. The
traverse alleges petitioner has provided ― ‗satisfactory reasons‘ for not presenting his
non-repetitive claims [including claim No. 85] in the first petition,‖ but his purported
reasons amount to no more than unsupported assertions that Attorney Nolan, who
represented petitioner in his first habeas corpus proceeding, was constitutionally
ineffective.
85
We recognized in Clark that ineffective assistance of counsel may justify
piecemeal presentation of claims on habeas corpus, but cautioned that, to come within
this exception, ―[t]he petitioner must . . . allege with specificity the facts underlying
the claim that the inadequate presentation of an issue or omission of any issue reflects
incompetence of counsel . . . .‖ (In re Clark, supra, 5 Cal.4th at p. 780, italics added.)
The only facts petitioner alleges in support consist of (1) Attorney Nolan‘s general
declaration that, on reflection, claim No. 85 is potentially meritorious and he had no
tactical reason for failing to raise it in petitioner‘s first habeas corpus petition, and
(2) Attorney Wesley Van Winkle‘s declaration asserting his professional opinion that
Nolan was ineffective for failing to raise several dozen claims on appeal or in the
1995 habeas corpus petition. But Nolan‘s declaration is woefully lacking in detail,
and that same lack of specificity also undermines Van Winkle‘s declaration. In other
words, neither declaration provides a basis to conclude that competent counsel should
have raised claim No. 85 in particular or that ―the issue is one which would have
entitled the petitioner to relief had it been raised and adequately presented in the
initial petition, and that counsel‘s failure to do so reflects a standard of representation
falling below that to be expected from an attorney engaged in the representation of
criminal defendants.‖ (Clark, at p. 780.) We reiterate that the ―mere omission of a
claim ‗developed‘ by new counsel does not raise a presumption that prior habeas
corpus counsel was incompetent, or warrant consideration of the merits of a
successive petition.‖ (Ibid.) In short, the mere fact Attorney Nolan failed to include
this issue in his prior petition (or failed to frame it as one of ineffectiveness of trial
counsel) does not demonstrate Nolan‘s representation was constitutionally ineffective.
Claim No. 85 aside, petitioner alleges that nine of his claims are based on
newly discovered evidence and thus could not have been raised earlier. For example,
he asserts in claim No. 71 that the prosecutor committed misconduct by failing to
disclose impeaching information regarding witness Anthony Cornejo. (See Brady v.
86
Maryland, supra, 373 U.S. 83; Kyles v. Whitley (1995) 514 U.S. 419.) In support of
this allegation, petitioner relies on various memoranda and documents from the
district attorney‘s office that describe Cornejo‘s attempts to ingratiate himself with
prosecutors in other cases and that refer to Cornejo as ―one of the most unscrupulous
snitches that I have ever run across in 14 years as a deputy district attorney.‖ But the
documents on which petitioner now relies are dated 1980 (exhibit F), 1982 (exhibit F)
and 1989 (exhibits H, I)—i.e., well before he filed his first habeas corpus petition in
1995—and he fails to allege when he learned of this information. In any event, as
Cornejo‘s mendacity was a major issue in the case, and he was at trial ―impeached as
a notorious jailhouse informant who had repeatedly testified about fellow inmates‘
statements in jail for the prosecution in state and federal court‖ (Memro II, supra, 11
Cal.4th at p. 825), we cannot conclude this evidence is newly discovered under our
rules. That is, the allegedly ―new‖ evidence of Cornejo‘s flexible relationship with
the truth is cumulative to what was already known and thus does not ― ‗cast[]
―fundamental doubt on the accuracy and reliability of the proceedings.‖ ‘ ‖ (In re
Lawley, supra, 42 Cal.4th at p. 1239.) As the evidence is not newly discovered under
our rules, its presentation now does not excuse petitioner‘s failure to raise claim No.
71 at an earlier time.
We have examined the other eight claims for which petitioner argues he has
new evidence and find them similarly wanting.
Rightly assuming the Clark exceptions apply, petitioner attempts to come
within those exceptions for the dozens of claims subject to the prohibition of
piecemeal presentation. The effort fails. His allegations in this regard are conclusory
and fail to show there occurred a constitutional error that resulted in a ―fundamentally
unfair‖ trial, that he is factually innocent, that the evidence at his penalty phase
produced a ―grossly misleading profile‖ of him, or that he was convicted or sentenced
under an invalid statute. (In re Clark, supra, 5 Cal.4th at pp. 797-798.)
87
Petitioner next argues he should be excused from the Clark/Horowitz rule
because he was personally unaware of the factual basis of the claims. This contention
is not tied particularly to any one claim and, as such, fails for lack of specificity. It is
also at least partially untrue; we note, for example, that as to claim No. 85, petitioner
and counsel necessarily were aware of Sergeant Carter‘s notes as trial counsel cross-
examined Carter about them at trial, and a claim related to the notes was raised in
petitioner‘s first habeas corpus petition in 1995.
Petitioner finally argues he should be excused from the Clark/Horowitz rule
because raising these procedurally barred claims is necessary to exhaust them for
federal court purposes. We have discussed and rejected this explanation elsewhere in
this opinion.
In sum, claim No. 85 (which asserts petitioner‘s trial counsel was ineffective
for failing to examine Sergeant Carter‘s notes and for failing to have hired an expert
to determine when the notes were prepared) could have been, but was not, raised in
his first habeas corpus petition in 1995. Petitioner provides nothing but patently
meritless explanations for why this claim should fall outside the Clark/Horowitz rule
prohibiting piecemeal presentation of claims. This claim is thus barred by the
Clark/Horowitz rule. (In re Horowitz, supra, 33 Cal.2d at pp. 546-547; In re Clark,
supra, 5 Cal.4th at pp. 767-768.) In addition, the petition alleges dozens of other such
claims we have determined could similarly have been raised in the previous petition
and for which petitioner similarly offers patently meritless explanations for why the
claim should be excepted from the Clark/Horowitz rule. A separate discussion of
each of these claims is unnecessary. To raise so many Clark/Horowitz-barred claims
without making a plausible attempt to demonstrate that those claims qualify for an
exception to the rule is an example of an abusive writ practice.
88
6. Lindley
For the first degree murder of Carl Jr., the prosecutor relied on two theories:
the killing was premeditated and deliberated, and it occurred during the commission
of a felony, i.e., a lewd act on a child. For the murder of Ralph Chavez, the
prosecutor relied solely on the theory of premeditation and deliberation. The jury
returned verdicts of first degree murder on both counts. In the habeas corpus petition
now before this court, petitioner alleges in claim Nos. 67 and 68 the evidence adduced
at trial was insufficient to support these convictions. Because these exact claims were
raised and rejected on appeal, they are procedurally barred by the Waltreus rule. (In
re Waltreus, supra, 62 Cal.2d at p. 225.) They are also improper for another reason:
claims of the insufficiency of evidence to support a conviction are not cognizable in a
habeas corpus proceeding. (In re Lindley, supra, 29 Cal.2d at p. 723.)
The rule of Lindley recognizes that the job of sifting the evidence and weighing
the credibility of witnesses is for the trier of fact, usually the jury, at the time of trial
(see People v. Farris (1977) 66 Cal.App.3d 376, 383), and that claims of evidentiary
insufficiency must be raised in either a motion for a new trial,34 on appeal, or both.
Aside from a claim of newly discovered evidence, that is, evidence not presented at
trial, which is itself subject to strict limits (see In re Lawley, supra, 42 Cal.4th at
p. 1239), routine claims that the evidence presented at trial was insufficient are not
cognizable in a habeas corpus petition.
The Lindley rule is a venerable one, having been cited consistently over several
decades. (In re Adams (1975) 14 Cal.3d 629, 636; In re Giannini (1968) 69 Cal.2d
563, 577, fn. 11; In re Manchester (1949) 33 Cal.2d 740, 744; In re White, supra, 121
34 Penal Code section 1181 provides: ―When a verdict has been rendered or a
finding made against the defendant, the court may, upon his application, grant a new
trial, in the following cases only: [¶] . . . [¶] 6. When the verdict or finding is
contrary to law or evidence . . . .‖
89
Cal.App.4th at p. 1481, fn. 21; People v. Espinoza (2002) 95 Cal.App.4th 1287, 1322;
In re Spears (1984) 157 Cal.App.3d 1203, 1209-1210.)
The petition raises claim Nos. 67 and 68 with no apparent awareness the claims
are barred by the Lindley rule, and neither the petition nor the informal reply includes
any allegations attempting to justify their presentation here. In his traverse, petitioner
argues claim Nos. 67 and 68 are properly before the court because they are ―related to
[his] claim of actual innocence,‖ prior appellate counsel ―ineffectually presented the
claims on direct appeal,‖ the prosecution should have been precluded from proving
certain facts by the doctrines of res judicata and collateral estoppel, and presentation
of the claims will allow this court to consider them when assessing the cumulative
impact of all the errors.
These allegations are uniformly meritless. The only ―new‖ evidence alleged—
that is, evidence not presented to the jury in 1987—is a 1998 declaration from Dr.
George Woods, a psychiatrist, who opines petitioner suffers from mental problems
that precluded him from premeditating and deliberating the crimes against Fowler and
Chavez. (The jury convicted petitioner of only second degree murder of Fowler in
any event.) This evidence does not show petitioner is actually innocent; that is, it
does not cast fundamental doubt on the accuracy and reliability of the trial
proceedings, nor undermine the prosecution‘s entire case and ― ‗ ―point unerringly to
innocence or reduced culpability.‖ ‘ ‖ (In re Lawley, supra, 42 Cal.4th at p. 1239.)
Moreover, appellate counsel raised on appeal the claim that insufficient evidence of
premeditation supported the murder convictions (Memro II, supra, 11 Cal.4th at
p. 862), and petitioner does not show how or why prior appellate counsel was
ineffective in doing so. Petitioner‘s res judicata claims should have been raised at
trial and on appeal; his failure to do so forfeited those claims. We have previously
explained why the cumulative prejudice argument is unpersuasive.
90
We find petitioner raised claim Nos. 67 and 68 notwithstanding they are
noncognizable in a habeas corpus proceeding. Further, the petition includes no
allegations justifying their presentation now, nor does the traverse contain any
allegations plausibly justifying how the claims fall outside the Lindley rule. This is an
example of an abusive writ practice.
7. Lessard, Sterling, and Fourth Amendment Claims
A further limitation on the availability of habeas corpus relief was set forth in
In re Lessard (1965) 62 Cal.2d 497, 503, and In re Sterling, supra, 63 Cal.2d at page
489: claims the police violated a petitioner‘s rights under the Fourth Amendment to
the United States Constitution are not cognizable in a habeas corpus proceeding. (See
also In re Sakarias, supra, 35 Cal.4th at p. 169 [citing Sterling with approval]; In re
Harris, supra, 5 Cal.4th at p. 830 [same].) ―We do not believe that petitioner may at
this date employ the writ of habeas corpus to attack the introduction of evidence
which allegedly has been illegally obtained.‖ (Lessard, at p. 503.)
We explained the Lessard/Sterling rule in In re Clark, supra, 5 Cal.4th at page
767: ―[T]he erroneous admission of unlawfully seized evidence presented no risk that
an innocent defendant might be convicted, and ‗[t]he risk that the deterrent effect of
the [exclusionary] rule will be compromised by an occasional erroneous decision
refusing to apply it is far outweighed by the disruption of the orderly administration of
justice that would ensue if the issue could be relitigated over and over again on
collateral attack.‘ ([In re Harris (1961) 56 Cal.2d 879,] 884, conc. opn. of
Traynor, J.) That reasoning persuaded the court that Fourth Amendment violations
need not be considered on habeas corpus even when the issue had not been raised on
appeal. ‗Failure to exercise these readily available remedies will ordinarily constitute
such a deliberate bypassing of orderly state procedures as to justify denial of federal
as well as state collateral relief.‘ ‖
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Petitioner in claim No. 1 alleges South Gate police officers arrested him
without probable cause and in claim No. 3 that they conducted an unjustified
warrantless search of his apartment, both in violation of his right under the Fourth
Amendment to the United States Constitution to be free of unreasonable searches and
seizures. Both claims were raised and rejected on appeal (see Memro II, supra, 11
Cal.4th at pp. 838-843, 846-847) and so are, in any event, barred by the Waltreus rule
(In re Waltreus, supra, 62 Cal.2d at p. 225). They are also barred by the
Lessard/Sterling rule. (In re Lessard, supra, 62 Cal.2d 497; In re Sterling, supra, 63
Cal.2d 486.)35 Neither the petition nor the informal reply betrays any awareness that
claim Nos. 1 and 3 are noncognizable claims.
Prompted by our order to show cause, petitioner now addresses the
cognizability of these claims in the traverse. He claims not to have ignored the
Lessard/Sterling rule, although he concedes claim Nos. 1 and 3 are ―arguably‖ subject
to the rule. Despite this apparent concession, he argues that, for a number of reasons,
35 The People contend the following additional claims are also subject to the
Lessard/Sterling rule:
Claim No. 25 (challenging the fairness of the hearing on petitioner‘s
suppression motion because the trial judge was biased and counsel was ineffective);
Claim No. 26 (challenging the fairness of the same hearing because the
prosecutor introduced misleading information);
Claim No. 27 (challenging the fairness of the same hearing because the trial
court failed to exclude some witnesses from the hearing);
Claim No. 30 (refusal to allow relitigation of the suppression motion on
retrial);
Claim No. 89 (counsel‘s failure to use a missing-juvenile report to impeach
police officer witnesses);
Claim No. 94 (alleged ineffective assistance of counsel at the suppression
hearing).
Although these six claims concern the conduct of the hearing on petitioner‘s
suppression motion, the claims, as alleged, rely on petitioner‘s right to a fair trial
(U.S. Const., 5th & 14th Amends.) and his right to counsel (U.S. Const., 6th & 14th
Amends.) and so do not implicate the Lessard/Sterling rule.
92
claim Nos. 1 and 3 are nevertheless cognizable. His arguments are unpersuasive. He
first argues ―this Court may review the merits of all claims‖ because he was ―not
granted a fair and adequate hearing on his motion to suppress‖; however, not only was
the fairness of the hearing addressed in the trial court and on appeal, this justification
implicates his right to procedural due process (which he has raised in other claims)
and not his rights under the Fourth Amendment to the United States Constitution. He
next claims we should review claim Nos. 1 and 3 due to ―inadequate representation by
trial, appellate and prior habeas counsel,‖ referring the reader to the claims in which
he contends trial counsel was ineffective.36 (Petitioner, however, makes no specific
allegations concerning the actions and omissions of prior appellate and habeas corpus
counsel.) But although claims of ineffective assistance of counsel are independent
arguments that are not barred by the Lessard/Sterling rule (cf. In re Robbins, supra,
18 Cal.4th at p. 814, fn. 34 [discussing the intersection of the Waltreus rule and a
claim of ineffective assistance of counsel]; In re Harris, supra, 5 Cal.4th at pp. 834-
835, fn. 8 [same]), claim Nos. 1 and 3 are direct Fourth-Amendment-based attacks on
the constitutionality of petitioner‘s arrest and the search of his apartment and garage.
Those claims are barred by the Lessard/Sterling rule.
Petitioner finally argues we should consider claim Nos. 1 and 3 despite the
Lessard/Sterling rule so that we might ―view the totality of the circumstances in
assessing [his] claims.‖ We have previously discussed and rejected this asserted
cumulative prejudice justification and will not discuss it further.
36 See claim No. 85 (alleging trial counsel was ineffective for failing to examine
police notes), claim No. 88 (alleging trial counsel was ineffective for failing to
impeach police witnesses), and claim Nos. 89 and 94 (alleging trial counsel was
ineffective for failing to use the report of a missing juvenile to impeach a police
officer witness).
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In sum, we conclude petitioner raised claim Nos. 1 and 3 despite their being
noncognizable claims under the Lessard/Sterling rule, and his briefing contains no
plausible reason justifying their presentation. This is an example of an abusive writ
practice.
8. Issues Originating in Petitioner’s First Trial
In petitioner‘s first trial, he successfully moved to have his trial counsel
removed and replaced with new counsel prior to the penalty phase. Petitioner
objected to new counsel almost immediately, new counsel sought to withdraw, and the
trial court granted his request. The court then refused petitioner‘s further requests to
appoint new counsel, and petitioner represented himself at the penalty phase.
Petitioner now contends in both claim No. 14 and claim No. 99 that the trial court in
his first trial erred by refusing to appoint new counsel to represent him at the penalty
phase after his original trial counsel was discharged and petitioner‘s first replacement
attorney was allowed to withdraw. But we reversed the judgment in Memro I in its
entirety (Memro I, supra, 38 Cal.3d 658), so any error in failing to appoint counsel at
the first penalty phase could not have affected petitioner‘s rights at his second trial,
when he was represented by different counsel.
Petitioner does not, in his petition, explain how this purported error in the first
trial violated his constitutional rights in connection with his retrial. He asserts that
―allowing a retrial of the penalty phase against [him] after what was done at the prior
penalty phase was a ‗constitutionally intolerable event,‘ ‖37 and that he ―should have
been subject to, at most, a sentence of life in prison without parole.‖ The authorities
he cites in support, however, are inapt because they concern the consequences of a
37 See Herrera v. Collins, supra, 506 U.S. at page 419 (conc. opn. of O‘Connor,
J.) (―the execution of a legally and factually innocent person would be a
constitutionally intolerable event.‖).
94
prisoner proving he or she is factually innocent. (Herrera v. Collins, supra, 506 U.S.
390; Lambert v. Blackwell (E.D.Pa. 1997) 962 F.Supp. 1521, 1529, revd. on other
grounds, Lambert v. Blackwell (3d Cir. 1997) 134 F.3d 506.) Petitioner has not
demonstrated factual innocence.
In his informal reply, petitioner alleges that, had the trial court appointed
replacement counsel in his first trial, he would have been sentenced to only life in
prison, precluding a retrial in which the death penalty was possible. (See Bullington v.
Missouri, supra, 451 U.S. 430.) But in addition to having failed to raise this issue on
appeal in Memro II, supra, 11 Cal.4th 786, thereby implicating the Dixon rule (In re
Dixon, supra, 41 Cal.2d at p. 759), petitioner does not show why the jury would have
returned a life sentence in his first trial had he been represented by counsel at the
penalty phase. Indeed, given the strong, even overwhelming evidence he was guilty
of killing three young boys, that he forcibly sodomized one young victim (possibly
after he was dead), and that he represented a continuing threat to the safety of children
in the neighborhood (inferable from the discovery by police that petitioner possessed
hundreds of photographs of young children (Memro II, at p. 814)), the assertion a
hypothetical new counsel would nevertheless have convinced the jury to spare
petitioner‘s life is unduly speculative.
We reject petitioner‘s further argument that forcing him to face the death
penalty on retrial prejudiced him by permitting the prosecution to ―death qualify‖ the
jurors, which he claims produced a jury prone to conviction. We have repeatedly
rejected the claim that death qualification of the jury in a capital case produces a
conviction-prone jury. (People v. Gurule, supra, 28 Cal.4th at pp. 597-598; People v.
Carrera (1989) 49 Cal.3d 291, 331.) The petition neither acknowledges nor attempts
to refute or distinguish this binding authority.
Finally, petitioner reiterates his argument that we should consider claim Nos.
14 and 99 ―to allow this Court to view the totality of errors affecting his trial.‖ But
95
the claims, as alleged, do not state they are being reraised in a limited manner merely
to support a cumulative prejudice claim. Instead, claim Nos. 14 and 99 allege
petitioner was denied his rights to counsel and to due process. In any event, we have
already explained that the alleged need to consider all claims in the aggregate does not
justify the raising of procedurally barred claims.
In sum, we conclude petitioner raised claim Nos. 14 and 99 despite their
having no connection to his conviction and penalty judgment in his retrial, and his
briefing contains no plausible reason justifying raising them in the present petition.
This is an example of an abusive writ practice.
III. Remedies for Abuse of the Writ
Attorneys are officers of the court and have an ethical obligation to advise the
court of legal authority that is directly contrary to a claim being pressed. (Batt v. City
and County of San Francisco (2007) 155 Cal.App.4th 65, 82, fn. 9.) Rule 5-200 of
the Rules of Professional Conduct addresses the issue and provides that, ―[i]n
presenting a matter to a tribunal, a member: [¶] (A) Shall employ . . . such means
only as are consistent with truth; [and] [¶] (B) Shall not seek to mislead the judge . . .
by an artifice or false statement of fact or law. . . .‖ (See also Southern Pacific
Transp. v. P.U.C. of State of Cal. (9th Cir. 1983) 716 F.2d 1285, 1291 [failure to cite
opposing authority is a ―dereliction of duty to the court‖].)
These rules logically require an attorney (or a party if proceeding without an
attorney) to disclose whether a particular claim, raised in a petition for a writ of
habeas corpus, is subject to a procedural bar such as the Waltreus rule (In re Waltreus,
supra, 62 Cal.2d at p. 225), the Dixon rule (In re Dixon, supra, 41 Cal.2d at p. 759),
or one of the other rules mentioned in this opinion. We held as much in Clark,
explaining that ―the petitioner . . . bears the initial burden of alleging the facts on
which he relies to explain and justify delay and/or a successive petition.‖ (In re
96
Clark, supra, 5 Cal.4th at p. 798, fn. 35.) Although Clark did not involve claims
barred by rules other than those involving timeliness and successiveness, the principle
is the same: If a petition raises a claim that according to controlling legal authority is
procedurally improper, the petition must disclose that fact and forthrightly address
why the court should nevertheless consider the claim. In this way, the rules governing
habeas corpus are no different than in other areas of the law. For example, in a
typical civil matter, ―when a complaint shows on its face . . . that a pleaded cause of
action is apparently barred by the statute of limitations, plaintiff must plead facts
which show an excuse, tolling, or other basis for avoiding the statutory bar . . . .‖
(Spray, Gould & Bowers v. Associated Internat. Ins. Co. (1999) 71 Cal.App.4th 1260,
1266, fn. 4; see Union Carbide Corp. v. Superior Court (1984) 36 Cal.3d 15, 25 [― ‗if
on the face of the complaint the action appears barred by the statute of limitations,
plaintiff has an obligation to anticipate the defense and plead facts to negative the
bar.‘ ‖].)
Accordingly, failure to affirmatively address the applicability of procedural
obstacles to consideration of the claims raised in a habeas corpus petition justifies
summary denial without the court‘s consideration of the merits. We imposed that
sanction in Clark where, faced with untimely and successive claims raised without
adequate justification, we denied the petition without ―consider[ing] the merits of any
of the claims.‖ (In re Clark, supra, 5 Cal.4th at p. 799.) That remedy is amply
justified on the facts of this case.
In addition, if an attorney prepared the offending petition, that attorney may be
found to have crossed an ethical line rendering the attorney subject to consequences.
Rule 8.276 of the California Rules of Court authorizes financial sanctions. That rule
provides the Court of Appeal, on its own motion, ―may impose sanctions, including
the award or denial of costs under rule 8.278, on a party or an attorney for:
[¶] (1) Taking a frivolous appeal or appealing solely to cause delay.‖ This rule,
97
although referencing the Court of Appeal, applies as well to petitions filed in this
court pursuant to our original jurisdiction. (Cal. Rules of Court, rule 8.4(2); People v.
Romero, supra, 8 Cal.4th at p. 737 [Supreme Ct. has original jurisdiction in habeas
corpus].) Essentially the same rules applied at the time petitioner filed his petition in
this court in 2004. (See Cal. Rules of Court, former rules 27(e)(1)(A) [Ct.App. may
impose sanctions for frivolous appeal], 53 [rules apply to original proceedings in the
Supreme Ct.]; see also In re Marriage of Flaherty (1982) 31 Cal.3d 637, 646
[interpreting former rule 26(a) to the same effect].)
Although the situations in which an attorney has been sanctioned financially
for filing a frivolous or abusive petition for a writ of habeas corpus are rare, In re
White, supra, 121 Cal.App.4th 1453, illustrates a situation in which the penalty was
justified. In White, the Third District Court of Appeal found an attorney had filed
three patently frivolous habeas corpus petitions for three different clients. The first
client, White, had already been unsuccessful on appeal and in his first habeas corpus
petition, and the petition before the appellate court in White asserted claims that were
successive, repetitive, and had been, or could have been, raised on appeal. By the
time the offending attorney filed his frivolous petition, the conviction at issue was
more than 10 years old. (Id. at pp. 1480-1481.) In addition, the petition did not
attempt to justify either the lateness of its claims or why the claims should be excused
from the standard procedural bars. (Id. at p. 1481.) According to the Court of
Appeal, ―[a]ny reasonable attorney familiar with the facts and the law would have
recognized [the attorney‘s] contentions regarding procedural bars are indisputably
without merit.‖ (Id. at p. 1482.) The petitions for the other two clients, Pena and
Harris-Anderson, were also untimely without an explanation, repetitive, or raised
claims that could have been raised on appeal. (Id. at pp. 1484-1486.) Although the
appellate court was careful to explain that it did not ―necessarily equate the failure to
state a prima facie case for relief with frivolousness, or with incompetence of the
98
attorney representing the petitioner‖ (id. at p. 1462), the court nevertheless invoked its
power under the California Rules of Court (White, at p. 1479) and sanctioned the
offending attorney $25,000 for filing patently frivolous habeas corpus petitions (id. at
p. 1489).
Although White was an extremely egregious case,38 we agree with the White
court‘s holding that rule 8.276 of the California Rules of Court authorizes an appellate
court to impose financial sanctions on an attorney who files a frivolous or abusive
habeas corpus petition. We also agree with the significant caution the court
expressed: ―Due to the importance of the Great Writ in our system of justice, it is
critical not to impede such access to the courts or to deter, for fear of personal
liability, the vigorous assertion of an inmate‘s rights.‖ (In re White, supra, 121
Cal.App.4th at p. 1456.) ―Thus, sanctions should be imposed sparingly, in only the
most egregious case, so as not to discourage use of the Great Writ.‖ (Id. at p. 1480.)
The problem of frivolous filings arises most often not with respect to habeas
corpus petitions but with respect to direct appeals. Aside from the rules of court
previously mentioned, Code of Civil Procedure section 907 specifically authorizes the
imposition of financial sanctions on an attorney for taking a frivolous appeal, stating:
―When it appears to the reviewing court that the appeal was frivolous or taken solely
for delay, it may add to the costs on appeal such damages as may be just.‖ Like the
court in In re White, supra, 121 Cal.App.4th 1453, we have recognized the delicate
balance appellate courts face when considering such sanctions. On the one hand,
―[a]n appeal taken for an improper motive represents a time-consuming and disruptive
38 For example, the attorney in White had unsupervised law students prepare the
habeas corpus petitions (In re White, supra, 121 Cal.App.4th at p. 1459), admitted
signing the petitions and filing them with the Court of Appeal without first reading
them (id. at pp. 1456, 1465), and conceded the petitions he filed were ―patently
frivolous‖ (id. at pp. 1456, 1474, 1476).
99
use of the judicial process. Similarly, an appeal taken despite the fact that no
reasonable attorney could have thought it meritorious ties up judicial resources and
diverts attention from the already burdensome volume of work at the appellate
courts.‖ (In re Marriage of Flaherty, supra, 31 Cal.3d at p. 650.)
On the other hand, we observed that ―any definition [of a frivolous appeal]
must be read so as to avoid a serious chilling effect on the assertion of litigants‘ rights
on appeal. Counsel and their clients have a right to present issues that are arguably
correct, even if it is extremely unlikely that they will win on appeal. An appeal that is
simply without merit is not by definition frivolous and should not incur sanctions.
Counsel should not be deterred from filing such appeals out of a fear of reprisals.
Justice Kaus stated it well. In reviewing the dangers inherent in any attempt to define
frivolous appeals, he said the courts cannot be ‗blind to the obvious: the borderline
between a frivolous appeal and one which simply has no merit is vague indeed . . . .
The difficulty of drawing the line simply points up an essential corollary to the power
to dismiss frivolous appeals: that in all but the clearest cases it should not be used.‘
[Citation.] The same may be said about the power to punish attorneys for prosecuting
frivolous appeals: the punishment should be used most sparingly to deter only the
most egregious conduct.‖ (In re Marriage of Flaherty, supra, 31 Cal.3d at pp. 650-
651.) In short, ―the imposition of sanctions in this context remains a delicate task,
because an overbroad exaction of damages may significantly chill every litigant‘s
enjoyment of the fundamental protections of the right to appeal.‖ (Coleman v. Gulf
Ins. Group (1986) 41 Cal.3d 782, 797.) ―Thus, an appeal should be held to be
frivolous only when it is prosecuted for an improper motive—to harass the respondent
or delay the effect of an adverse judgment—or when it indisputably has no merit—
when any reasonable attorney would agree that the appeal is totally and completely
without merit.‖ (Marriage of Flaherty, at p. 650, italics added.)
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The concerns expressed in In re Marriage of Flaherty, supra, 31 Cal.3d at
pages 650-651, that judicial sanctions for filing a frivolous appeal should not chill a
litigant‘s ability to seek the protections of the law, apply equally to petitions for writs
of habeas corpus. We are sensitive to these concerns. They are not, however,
determinative in this case. As we have explained, petitioner was retried for his 1976
and 1978 crimes and convicted (and sentenced to death) in 1987, and this court
affirmed that judgment in 1995. (Memro II, supra, 11 Cal.4th 786.) Also in 1995, we
denied petitioner‘s first state habeas corpus petition, finding none of his 20 claims and
subclaims stated a prima facie case for relief. Nine years later in 2004, petitioner filed
a second habeas corpus petition in this court, raising 143 claims in a 521-page
petition, almost all of which are untimely without good cause. (See In re Robbins,
supra, 18 Cal.4th at pp. 780-781.) (The only claims not subject to the procedural bar
of timeliness are listed in fn. 17, ante.)
In addition to the manifest untimeliness of the great majority of petitioner‘s
claims, almost all of his claims are procedurally barred because they have been raised
and rejected on appeal (In re Waltreus, supra, 62 Cal.2d at p. 225), could have been
raised on appeal (In re Dixon, supra, 41 Cal.2d at p. 759), have previously been raised
and rejected in connection with his first habeas corpus petition (In re Miller, supra, 17
Cal.2d at p. 735), could have been raised in his first habeas corpus petition (In re
Clark, supra, 5 Cal.4th at pp. 774-775; In re Horowitz, supra, 33 Cal.2d at pp. 546-
547), improperly alleged insufficient evidence at trial (In re Lindley, supra, 29 Cal.2d
at p. 723), improperly alleged a violation of petitioner‘s Fourth Amendment rights (In
re Sterling, supra, 63 Cal.2d at pp. 487-488), and/or because they raise issues
originating in petitioner‘s first trial without an adequate explanation how those claims
of error could have affected his rights in his second trial. Many of petitioner‘s claims
are subject to more than one of these procedural bars.
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Although rule 8.276 of the California Rules of Court, and its antecedents, have
long been the rule, and although In re White, supra, 121 Cal.App.4th 1453, clearly
explains that sanctions can apply to a frivolous habeas corpus petition, this court has
not before taken that drastic step. Accordingly, although we find the present petition
exhibits many of the abusive practices we have seen develop over the years, we
exercise our discretion and decline to invoke rule 8.276 relating to sanctions at this
time. Attorneys (and parties) in future cases are forewarned, however, that they bear
an affirmative duty to address in petitions for writs of habeas corpus why applicable
procedural bars do not preclude consideration of their claims. Failure to do so, or the
assertion of patently meritless explanations, may result in financial sanctions and/or
having this court refer the offending attorney to the State Bar for potential discipline.
(See People v. Hill, supra, 17 Cal.4th at p. 853, fn. 13.)
The abusive nature of the instant petition is by no means an isolated
phenomenon. In those capital cases in which we have affirmed the judgment on
appeal and then denied a typically lengthy first habeas corpus petition, we often—
years later—receive an exhaustion petition running several hundred pages long.
Evaluation of the exhaustion petition requires several weeks if not months of
dedicated work by members of the court. As here, quite often the petition is nothing
more than a repetition or reframing of past claims and unsubstantiated assertions of
ineffective assistance of counsel. Rarely if at all does the petitioner justify his or her
untimely presentation of claims.
These practices, along with other factors, have created a significant threat to
our capacity to timely and fairly adjudicate such matters. We are of course aware that
―death row inmates have an incentive to delay assertion of habeas corpus claims that
is not shared by other prisoners.‖ (In re Clark, supra, 5 Cal.4th at p. 806 (conc. & dis.
opn. of Kennard, J.); see Rhines v. Weber (2005) 544 U.S. 269, 277-278 [suggesting
capital defendants ―might deliberately engage in dilatory tactics to prolong their
102
incarceration and avoid execution of the sentence of death‖].) Yet those capital
defendants whose appeals are fully briefed, and those habeas corpus petitioners whose
briefing also is complete who may desire resolution, must sit and wait while we attend
to these time-consuming but generally meritless exhaustion petitions. Some death
row inmates with meritorious legal claims may languish in prison for years waiting
for this court‘s review while we evaluate petitions raising dozens or even hundreds of
frivolous and untimely claims. We are not the only state court of last resort concerned
that abusive exhaustion petitions threaten the court‘s ability to function. (See
Commonwealth of Pa. v. Spotz (2011) 610 Pa. 17, 171 [18 A.3d 244, 336] (conc. opn.
of Castille, C. J.) [estimating that the time required to evaluate an abusive
postconviction petition in capital cases renders the Pa. Supreme Ct. ―unable to accept
and review about five discretionary appeals‖].)
Accordingly, we deem it necessary to implement a response commensurate
with the seriousness of the situation. Therefore, as a judicially declared rule of
criminal procedure,39 upon the finality of this opinion and subject to amendment by
39 Concerns about judicial efficiency and the effective administration of criminal
justice have sometimes moved this court to create rules of criminal procedure. In In
re Yurko (1974) 10 Cal.3d 857, for example, we adopted a judicial rule of criminal
procedure requiring Boykin–Tahl admonitions (Boykin v. Alabama (1969) 395 U.S.
238; In re Tahl (1969) 1 Cal.3d 122) to be given not just before a person confesses to
a crime but also ― ‗before a court accepts an accused‘s admission that he has suffered
prior felony convictions‘ ‖ (People v. Mosby (2004) 33 Cal.4th 353, 360). Similarly,
in People v. Vickers (1972) 8 Cal.3d 451, 461, we declined to ―reach the issue
whether representation by counsel is constitutionally compelled at probation
revocation proceedings‖ but instead held that ―the efficient administration of justice
requires that the defendant be assisted by retained or appointed counsel at all
revocation proceedings other than at summary proceedings had while the probationer
remains at liberty after absconding.‖ (Italics added.) And in People v. Coffey (1967)
67 Cal.2d 204, which concerned a prior felony conviction charged as a sentence
enhancement allegation, we authorized criminal defendants to challenge in the current
trial the legality of a prior conviction on the ground the defendant was denied counsel
in the prior trial. Later, in People v. Allen (1999) 21 Cal.4th 424, 430, we described
Coffey‘s holding this way: ―In today‘s parlance, we would characterize the rule [in
103
subsequent rule-making by the Judicial Council, we hold that although a petitioner‘s
initial petition for a writ of habeas corpus in a capital case may be filed with no limit
as to length, second and subsequent petitions will be limited to 50 pages in length (or
14,000 words if produced on a computer). Appropriate rules governing the typeface,
spacing, margins, etc., will continue to apply. (Cal. Rules of Court, rule 8.204.) It
will also be prospective only. Should good cause exist, a petitioner can apply to the
Chief Justice for permission to file an overlength brief. (See Cal. Rules of Court, rule
8.204(c)(5) [good cause exception to file an overlength brief in the Ct.App.]; id., rule
8.360(b)(5) [same for criminal appeals].)
The volume of claims in the present petition that are either frivolous on the
merits or devoid of any recognized basis for surmounting applicable procedural bars
is emblematic of the abusive practices we have seen develop over the years. We
believe that if counsel appropriately focused on issues that have potential merit and
that reasonably may be reached even in light of possible procedural bars, counsel
readily can limit the body of the petition to 50 pages (or 14,000 words). A 50-page
limit will encourage an appropriate focus on potentially meritorious issues, without
the lengthy development of exceedingly weak or even frivolous claims either on the
merits or for the purpose of overcoming obvious procedural bars.
This limit is all the more reasonable in that today we adopt another rule of
procedure permitting petitioners to present or supplement certain claims via a brief
table or chart that would not require the full factual development and legal arguments
that ordinarily are required. Here counsel may choose to list (1) repetitive claims
proffered as background support for a new claim in the petition regarding cumulative
Coffey] as a judicially established rule of criminal procedure.‖ (Italics added.) In
short, ―we have prescribed judicial rules of criminal procedure when necessary to
effectuate a fundamental constitutional principle or a specific constitutional protection
of individual liberty.‖ (Stone v. Superior Court (1982) 31 Cal.3d 503, 519, fn. 9
[listing cases].)
104
prejudice, and (2) some or all claims that are raised solely for the purpose of federal
exhaustion. These will include very succinct statements of potentially meritorious
reasons for overcoming any applicable procedural bars, but full development of facts
and law will not be required. We adopt this rule, which is comparable with rule 8.508
of the California Rules of Court for petitions for review, in response to suggestions
made by the parties. Petitioner‘s counsel and various amici curiae argue vigorously
that even very weak claims must be presented to this court in some form for
exhaustion purposes. The table or chart accommodates that argument and will free
counsel to place a greater focus on stronger claims and new (i.e., nonrepetitive) claims
in the body of the petition. Even in this abbreviated listing, of course, counsel should
make every effort to exclude wholly meritless claims, but inclusion of such claims in
this chart will not in any event be considered abusive.
Page limits in petitions for postconviction relief are not uncommon. Florida
limits second and successive petitions from capital defendants to no more than 25
pages in length. (Fla. Rules Crim. Proc., § 3.851(e)(2).) Similarly, in Ohio, where
capital defendants are specifically precluded from raising in a petition for
postconviction relief any defense or due process claim that was or could have been
raised on direct appeal (Miller v. Walton (2005) 163 Ohio App.3d 703, 706 [840
N.E.2d 222, 223-224]), individual claims for relief in petitions for postconviction
relief under section 2953.21 of the Ohio Revised Code are limited to no more than
three pages each. (Ohio Rules of Crim. Proc., rule 35(A) [in addition to setting forth a
case history and statement of facts, the petition should set forth ―separately identified
grounds for relief‖ but ―[e]ach ground for relief shall not exceed three pages in
length‖], italics added.) Given Florida‘s limit of 25 pages for successive petitions,
and Ohio‘s limit of three pages per issue for even first petitions, our proposed limit of
50 pages for successive petitions is unremarkable and should pass constitutional
muster.
105
Petitioner and amici curiae raise a variety of objections to this court‘s imposing
page limits on exhaustion petitions but none are persuasive. For example, petitioner
claims page limits will not allow him to preserve his constitutional rights. He also
contends the pleading requirements set forth in In re Robbins, supra, 18 Cal.4th 770,
and In re Gallego, supra, 18 Cal.4th 825, require petitioners in capital cases to file
briefs that are longer, not shorter. But such petitioners can assert their rights on direct
appeal from their convictions, and can continue to raise nonrecord-based claims in
their initial habeas corpus petitions in this court without observing a page limit. In
addition, we will permit petitioners to raise claims that are presented to us solely for
purposes of federal exhaustion in the abbreviated form of a 10-page table or chart.
Any legitimate claims not raised in those two proceedings or by way of a table or
chart will generally be limited in number, and we expect petitioners wishing to file
additional petitions for postconviction relief will experience no problems raising any
residual claims, or claims based on newly discovered evidence, in 50 pages (or 14,000
words) or less. In an attempt to streamline the process and make it work for all
concerned, we agree with the suggestion of the parties and amici curiae that a
petitioner filing an exhaustion petition include a table or chart listing prior claims so
as to facilitate their consideration along with any new claims.
To the extent petitioner argues that inmates will be unable to raise all possible
nonfrivolous yet unmeritorious claims within the 50-page limit, we cannot say their
constitutional rights will be infringed thereby, especially when the additional table or
chart we authorize is considered. In any event, in the rare case in which the need to
file a petition in excess of 50 pages is supported by good cause, the inmate can apply
to the Chief Justice for permission to file a longer one.
Petitioner also contends the Attorney General, who represents the state in
federal court, approaches the question of exhaustion in a hypertechnical manner,
insisting in federal court that if a petitioner‘s claim, as alleged, does not exactly mirror
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that which was alleged in state court, the claim cannot be considered exhausted under
federal law. As a consequence, petitioner claims, he is forced to file in this court an
exact replica of his federal habeas corpus petition, including repetitive claims already
rejected by this court on appeal or in prior habeas corpus proceedings. He further
asserts that ―by altering the structure of any of their claims in state court, they may
well default those claims as unexhausted in federal court.‖
We understand that the parties and amici curiae have different points of view
on many aspects of procedure, including the Attorney General‘s alleged practice in
federal court regarding the exhaustion of claims. Indeed, habeas corpus counsel
suggests that presentation to the federal court of a claim that differs even slightly from
that raised in state court requires a return to state court for exhaustion. To the extent a
petitioner returns to this court for exhaustion purposes at the behest of the federal
courts, that action cannot be characterized as an abuse of the writ process, even if the
claim raised is procedurally barred under state law. (Petitioner may choose to raise
the issue in a table or chart accompanying the petition, clearly labeling it as being
raised for exhaustion purposes only. (See Cal. Rules of Court, rule 8.508 [indicating
how to raise issues in a petition for review in a noncapital case ―for the sole purpose
of exhausting state remedies before presenting a claim for federal habeas corpus
relief‖].)) In any event, the prospective practice we require in this opinion—clearly
identifying which issues are subject to a federal court‘s order to exhaust, and
supporting that assertion with a copy of the federal court‘s order, along with our
permission to raise any exhaustion issue in an extremely abbreviated form—will
obviate any suggestion such filing was abusive.
Petitioner‘s concerns about the Attorney General‘s practice in federal court
does not cause us to question our conclusion with respect to state practice. Our rules
prohibit raising again in a second or subsequent petition for a writ of habeas corpus
issues that were denied on appeal or in a prior state habeas corpus proceeding. A
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claim is exhausted for purposes of federal law if the state court has been given ―one
full opportunity to resolve‖ the issue (O’Sullivan v. Boerckel, supra, 526 U.S. at p.
845), and the high court‘s exhaustion doctrine does not ―require prisoners to file
repetitive petitions‖ (id. at p. 844). As noted above, if the federal court concludes an
issue raised in that court has not been exhausted, for a petitioner to raise the issue in
this court for exhaustion purposes would not be an abuse of the writ, although this
court‘s procedural bars may still prohibit this court from considering the issue on the
merits.
Petitioner also contends that if the attorney who represented him in his first
state habeas corpus proceeding was constitutionally ineffective because he or she
failed to raise all potentially meritorious claims, 50 pages may not be enough to raise
the claims omitted by previous counsel. Claims that a new round of judicial review is
required because prior counsel was ineffective are well known to this court and
occasionally accepted, but the justification is, at base, infinitely reductive, for
unquestioned acceptance of this reasoning could be used to justify a third, fourth and
fifth petition as well, as litigants continually challenge the effectiveness of their
previous attorneys.
Respect for the finality of state court judgments supports reasonable limits on
this rationale. (Cf. Martinez v. Ryan (2012) 566 U.S. ___, ___ [132 S.Ct. 1309, 1320]
[although attorney error in a first postappeal collateral proceeding can, in limited
circumstances, constitute cause for a failure to raise a claim, that rule does not apply
in ―second or successive collateral proceedings‖].) We reiterate that the mere
omission of a nonfrivolous yet meritless legal claim in a prior proceeding is
insufficient, standing alone, to show prior counsel‘s performance fell below that
which is constitutionally required. To the extent an inmate wishes to argue previous
counsel was ineffective, the claim may be raised in an exhaustion petition but must be
supported by specific allegations demonstrating that the omission was objectively
108
unreasonable and that the petitioner was prejudiced by the omission. In those
situations in which previous counsel actually omitted a potentially meritorious issue
that was arguably prejudicial, we think 50 pages (or 14,000 words) should be
sufficient to raise the claim.
Contrary to petitioner‘s argument, Cullen v. Pinholster, supra, 563 U.S. ___
[131 S.Ct. 1388], does not undermine the 50-page limit for exhaustion petitions we
announce today. As noted, ante, at footnote 1, Pinholster held that review under the
AEDPA ―is limited to the record that was before the state court that adjudicated the
claim on the merits‖ and that ―the record under review is limited to the record in
existence at that same time i.e., the record before the state court.‖ (Pinholster, at
p. ___ [131 S.Ct. at p. 1398].) Petitioner contends that Pinholster‘s restriction of
federal review to the factual record in state court ―thereby requires petitioners to file
repetitive claims and identical state and federal petitions to preserve the ‗record before
the state court‘ for review in federal court.‖ According to petitioner, ―[a] page or
word limit on successive petitions would thus frustrate counsel‘s ability to preserve
the state record in support of their client‘s constitutional rights.‖ We disagree;
nothing in Pinholster obligates a petitioner to file repetitive claims in state court or to
file in state court an exact replica of his federal petition.
Petitioner contends he must file in one petition all claims, including claims
already raised and rejected on appeal and on habeas corpus, in order to exhaust, and
thus preserve, a claim of cumulative prejudice for consideration by the federal courts.
According to petitioner, ―[u]nder federal law, if a petitioner does not present all of his
claims and supporting allegations (including repetitive claims) in a single petition, he
may not be able to exhaust his federal claim of cumulative error.‖ We do not intend
to prevent or impede petitioners from satisfying the federal exhaustion requirement;
we simply believe that our rules, including the rules we adopt today, afford litigants a
reasonable opportunity to do so. (See, e.g., Walker v. Martin, supra, 562 U.S. at
109
p. ___ [131 S.Ct. at p. 1131] [―there is no basis for concluding that California‘s
timeliness rule [for habeas corpus petitions] operates to the particular disadvantage of
petitioners asserting federal rights.‖]; O’Sullivan v. Boerckel, supra, 526 U.S. at
p. 845 [―state prisoners must give the state courts one full opportunity to resolve any
constitutional issues by invoking one complete round of the State‘s established
appellate review process.‖].) In any event, we cannot believe the federal exhaustion
rules were intended to deprive the state court of authority to forbid the filing of an
abusive writ petition. Likewise we are unpersuaded by the declaration submitted by
Wesley Van Winkle, an attorney expert in this field. Although Mr. Van Winkle
opines that numerous justifications support petitioner‘s decision to raise dozens of
repetitive, procedurally barred claims in his second habeas corpus petition before this
court, we reject them all. First, the fact this court possesses discretionary power to
review a previously decided issue does not justify reraising claims already decided.
Were we to accept that explanation, the number of times a petitioner could reraise an
issue would be without limit, and he or she could postpone execution indefinitely by
multiple, serial filings. Second, reraising all previously rejected claims is not
necessary to provide ―context‖ for assessing new claims, including claims of
ineffective assistance of appellate or prior postconviction counsel. As noted, ante, we
always consider a petitioner‘s previous appeal and habeas corpus petitions when
evaluating a second or subsequent petition. Third, as also explained, ante, reraising
all previously rejected claims is not necessary; petitioners need only give this court
―one full opportunity to resolve any constitutional issues.‖ (O’Sullivan v. Boerckel,
supra, 526 U.S. at p. 845; see Coleman v. Thompson (1991) 501 U.S. 722, 732
[petitioner must give state court an opportunity to address his claims ―in the first
instance‖].) Fourth, reraising all previously rejected claims is not necessary to allow
this court to ―better assess the prejudice stemming from the multitude of errors
infecting petitioner‘s capital proceedings.‖ In considering petitioner‘s appeal and his
110
prior habeas corpus petition, we found the vast majority of petitioner‘s claims failed
to show error. Neither Mr. Van Winkle nor petitioner explains how raising claims
previously rejected as unmeritorious (and not just nonprejudicial) assists the court in
assessing cumulative prejudice. Fifth, reraising previously rejected claims is not
justified on the ground that ―many [of the new claims] are based on further
developments of the facts and law.‖ As we have explained, the petition alleges no
new law that justifies the reraised claims, and the allegedly new facts are
insignificant. Finally, that the ―death penalty law itself is in a constant state of flux‖
is no justification for repetitive presentation of claims already rejected by this court.
Should the law change and benefit petitioner, he would be entitled at that time to file a
new petition. Contrary to the suggestion by Mr. Van Winkle, simply filing serial
repetitive petitions to delay execution of sentence in the hope the law may one day
change in the petitioner‘s favor is not a justifiable defense strategy, and in fact
constitutes an abuse of the writ justifying sanctions.
Petitioner and amici curiae assert that the question of page limits for
exhaustion petitions in capital cases is ―better answered through procedures adopted
by the Judicial Council.‖ As noted, it is the considered opinion of the court that we
face an emergency situation in which the time and effort required to read and evaluate
wholly meritless and abusive exhaustion petitions threatens to undermine the proper
functioning of this court. We thus exercise our inherent judicial power to impose
page limits, subject to future modifications and refinements of the rule by the Judicial
Council.
Another argument against this court‘s imposition of page limits is raised by the
Habeas Corpus Resource Center (HCRC) as amicus curiae. It contends this court
lacks the power to impose page limits on exhaustion petitions in capital cases because
noncapital habeas corpus petitions are limited by rule to 50 pages or 14,000 words
(Cal. Rules of Court, rules 8.384(a)(2), 8.204(c)), habeas corpus petitions in capital
111
cases are expressly exempt from that 50-page limit (id., rule 8.384(a)(2)), and only the
Judicial Council may amend the Rules of Court, except the rules in title 8, division 5
(pertaining to the publication of opinions), which may be amended only by the
Supreme Court (id., rule 8.13).
This argument misses the point; by imposing a page (or word) limit for
exhaustion petitions, we do not propose to ―amend‖ the Rules of Court. Under rule
8.384(a)(2), a death penalty inmate‘s first habeas corpus petition in this court may still
be filed without any limit on the number of pages or words. But for second and
subsequent petitions in capital cases, even though the Rules of Court do not impose a
page limit, we have done so in this opinion by exercising our inherent judicial power.
To the extent HCRC‘s argument is premised on the proposition that this court is
powerless to impose such remedial requirements in order to protect its docket and
ensure the proper functioning of the court, it is mistaken. ―It is . . . well established
that courts have fundamental inherent equity, supervisory, and administrative powers,
as well as inherent power to control litigation before them. [Citation.] ‗In addition to
their inherent equitable power derived from the historic power of equity courts, all
courts have inherent supervisory or administrative powers which enable them to
carry out their duties, and which exist apart from any statutory authority. [Citations.]
―It is beyond dispute that ‗Courts have inherent power . . . to adopt any suitable
method of practice, both in ordinary actions and special proceedings, if the procedure
is not specified by statute or by rules adopted by the Judicial Council.‘ [Citation.]‖
[Citation.] That inherent power entitles trial courts to exercise reasonable control
over all proceedings connected with pending litigation . . . in order to insure the
orderly administration of justice. [Citation.] ―Courts are not powerless to formulate
rules of procedure where justice demands it.‖ [Citations.]‘ ‖ (Rutherford v. Owens-
Illinois, Inc. (1997) 16 Cal.4th 953, 967, italics added.)
112
No question exists that this court, as the highest judicial body in the State of
California, has as much inherent judicial power as the trial court at issue in
Rutherford. ―Although some of these [judicial] powers are set out by statute . . . , it is
established that the inherent powers of the courts are derived from the Constitution
(art. VI, § 1 [reserving judicial power to courts] . . .), and are not confined by or
dependent on statute [citations].‖ (Walker v. Superior Court (1991) 53 Cal.3d 257,
267.) Moreover, given our unique role in overseeing the imposition of capital
punishment in this state,40 this court a fortiori possesses inherent power to control
potential abuses of the writ process.
We therefore reject HCRC‘s contention that this court lacks the power to
protect its docket and impose page limits on exhaustion petitions in capital cases.
IV. Conclusion
For the reasons explained above, we conclude the petition for a writ of habeas
corpus, filed in this court on May 10, 2004, exemplifies abusive writ practices that
cause us to deny the petition in its entirety without reaching the merits of any claim,
save the 16 claims mentioned in footnote 17, ante, which are denied on the merits.
(In re Clark, supra, 5 Cal.4th at p. 799.) In addition, counsel in both this and other
40 See, e.g., California Constitution, article VI, section 11, subd. (a) (―The
Supreme Court has appellate jurisdiction when judgment of death has been
pronounced.‖); Penal Code section 1239, subdivision (b) (―When upon any plea a
judgment of death is rendered, an appeal is automatically taken by the defendant
without any action by him or her or his or her counsel.‖); In re Morgan, supra, 50
Cal.4th 932 (exercising this court‘s inherent authority to permit the filing of a ―shell‖
or ―placeholder‖ habeas corpus petition to preserve an unrepresented petitioner‘s right
to federal review under AEDPA); Marks v. Superior Court, supra, 27 Cal.4th at page
188 (recognizing, but not exercising, this court‘s inherent authority in capital cases to
authorize habeas corpus counsel‘s participation in record correction); Supreme Court
Policies, policy 3 (―The Supreme Court promulgates these standards as a means of
implementing [various] goals with respect to petitions for writs of habeas corpus
relating to capital cases . . .‖).
113
cases are forewarned that the filing of abusive petitions in the future may subject them
to financial sanctions under rule 8.276 of the California Rules of Court. Following
finality of this opinion, exhaustion petitions in capital cases will be subject to the page
(or word) limits and other rules described herein.
The order to show cause is discharged, and the petition for a writ of habeas
corpus is denied. The following claims only are denied on the merits: claim Nos.
123, 125, 127, 128, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139 and 143.
(See fn. 17, ante.)
WERDEGAR, J.
WE CONCUR:
CANTIL-SAKAUYE, C. J.
KENNARD, J.
BAXTER, J.
CHIN, J.
CORRIGAN, J.
LIU, J.
114
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion In re Reno
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding XXX
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No. S124660
Date Filed: August 30, 2012
__________________________________________________________________________________
Court: Superior
County: Los Angeles
Judge: John A. Torribio
__________________________________________________________________________________
Counsel:
James S. Thomson, Saor Stetler and Peter Giannini, under appointments by the Supreme Court, for
Petitioner Reno.
Bill Lockyer, Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Robert R. Anderson and
Dane R. Gillette, Chief Assistant Attorneys General, Pamela C. Hamanaka, Assistant Attorney General,
John R. Gorey, Joseph P. Lee, Robert David Breton and Mary Sanchez, Deputy Attorneys General, for
Respondent State of California.
Kent S. Scheidegger for Criminal Justice Legal Foundation as Amicus Curiae on behalf of Respondent
State of California.
Michael Laurence for the Habeas Corpus Resource Center and California Public Defenders Association as
Amici Curiae.
Michael J. Hersek, State Public Defender, and Nina Rivkind, Deputy State Public Defender, for the Office
of the State Public Defender as Amicus Curiae.
Cliff Gardner; Lawrence A. Gibbs; and John T. Philipsborn for the Federal Public Defender for the Eastern
and Central Districts and the California Attorneys for Criminal Justice as Amici Curiae.
Counsel who argued in Supreme Court (not intended for publication with opinion):
James S. Thomson
819 Delaware Street
Berkeley, CA 94710
(510) 525-9123
Mary Sanchez
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
(213) 897-2364