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In re Morgan

August 30, 2010


The opinion of the court was delivered by: Kennard, J.

(this opn. precedes companion case, S167100, also filed 8/30/1)

Thirteen years ago, after he was convicted of capital murder and sentenced to death, indigent petitioner Edward Patrick Morgan invoked his statutory right to this court's appointment of habeas corpus counsel to challenge his conviction and his death sentence. Today, he still lacks such counsel, because of a critical shortage of qualified attorneys willing to represent capital prisoners in state habeas corpus proceedings.

Now before us is a cursory one-claim habeas corpus petition, which lacks any supporting exhibits. Petitioner asks us to defer a decision on his petition until we appoint habeas corpus counsel and until that attorney has had a reasonable opportunity to investigate various factual and legal matters that may lead to additional claims for relief, to be presented in an amended petition. The Attorney General opposes the request, urging us to deny the current petition as meritless. We grant petitioner's request.


In 1996, an Orange County jury convicted petitioner of kidnapping Leona Wong (Pen. Code, § 207),*fn1 unlawfully penetrating her with a foreign object (§ 289), and murdering her (§ 187). The jury also found true special circumstance allegations that defendant committed the murder in the course of committing the first two crimes. (§ 190.2, former subd. (a)(17)(ii), (xi).) Petitioner's appeal to this court from the judgment of death was automatic. (§ 1239, subd. (b).)

In August 1996, petitioner asked us to appoint counsel to represent him on his automatic appeal to this court (§ 1239, subd. (b)), and to appoint counsel to prepare a habeas corpus petition on his behalf. In March 2000, we appointed counsel to represent petitioner on appeal. But today, some 13 and a half years after petitioner's request for appointed habeas corpus counsel, we still have not found qualified counsel willing to accept the appointment. (The reasons are set forth in pt. II, post.)

In November 2007, this court issued its unanimous opinion in petitioner's appeal. We reversed the conviction for kidnapping and the kidnap-murder special circumstance but otherwise affirmed the judgment, including the sentence of death. (People v. Morgan (2007) 42 Cal.4th 593.) In March 2008, the United States Supreme Court denied petitioner's petition for writ of certiorari.

In April 2008, the California Appellate Project (CAP),*fn2 which has not been appointed as petitioner's habeas corpus counsel, filed in this court a petition for writ of habeas corpus on his behalf. Unlike the typical capital habeas corpus petition, this petition is cursory and lacks supporting exhibits. It alleges just one claim: that trial counsel's prejudicially deficient performance violated petitioner's "right to the effective assistance of counsel and to a fair and reliable determination" of his guilt of the crimes charged, of the truth of the special circumstance allegations, and of the penalty to be imposed. Specifically, petitioner faults his trial counsel for requesting a standard jury instruction (CALJIC No. 4.20) on voluntary intoxication that was allegedly "inapplicable and detrimental" to his case. Petitioner also faults counsel for failing to ask the trial court to instruct the jury that CALJIC No. 4.21 (a standard instruction, given by the court, stating that the jury may consider a defendant's voluntary intoxication when relevant to the defendant's specific intent) "is an exception to the general rule stated in CALJIC No. 4.20." The petition also alleges broadly that petitioner's trial counsel was incompetent because he did not "adequately investigate and present additional evidence at the guilt phase in support of the partial defense of intoxication," and because he did not "present expert testimony at the guilt phase regarding the intoxicating effects of alcohol, cocaine and steroids, and their potential effect on an intoxicated person's ability to form the required specific intent for violating Penal Code section 289 . . ."; the petition, however, alleges no specific facts to support these broad allegations.

Petitioner's prayer for relief asks us to "[p]ermit petitioner to amend this petition within 36 months after the appointment of habeas corpus counsel to include additional claims as determined by habeas corpus counsel [and] [¶] [d]efer informal briefing on this petition, should this Court desire such briefing, until petitioner has filed the amended petition and provided the Court with all reasonably available documentary evidence in support of the allegations in the amended petition."

As it has done here, CAP has filed a cursory petition on behalf of each death row inmate who, upon the finality of the inmate's automatic appeal, lacked habeas corpus counsel. Thus far, this court has granted each petition's request to defer informal briefing and to permit amendment of the petition within 36 months of habeas corpus counsel's appointment.

In June 2008, the Attorney General filed in this court a "Respondent's Motion for Order to Show Cause," requesting us to promptly consider the current petition, to find it lacking in merit, and to summarily deny it. We issued an order construing the Attorney General's request as an opposition to petitioner's request. We asked both parties to submit supplemental briefs on the issue, and we scheduled the matter for oral argument so the parties could express their views in open court. (See Cal. Rules of Court, rule 8.54(b)(2) ["On a party's request or its own motion, the court may place a motion on calendar for a hearing."].)


In California, an indigent prisoner who has been convicted of a capital crime and sentenced to death has a statutory right to the assistance of court-appointed counsel not only on appeal (Douglas v. California (1963) 372 U.S. 353, 356-357; § 1240) but also in a habeas corpus proceeding (Gov. Code, § 68662).*fn3 The latter right is at issue here. This statutory right to appointed habeas corpus counsel "promotes the state's interest in the fair and efficient administration of justice and, at the same time, protects the interests of all capital inmates by assuring that they are provided a reasonably adequate opportunity to present us their habeas corpus claims." (In re Barnett (2003) 31 Cal.4th 466, 475.)

Ideally, the appointment of habeas corpus counsel should occur shortly after an indigent defendant's judgment of death. An expeditious appointment would enable habeas corpus counsel to investigate potential claims for relief and to prepare a habeas corpus petition at roughly the same time that appellate counsel is preparing an opening brief on appeal. This would ensure the filing of a habeas corpus petition soon after completion of the briefing on the appeal. (See Cal. Supreme Ct., Policies Regarding Cases Arising from Judgments of Death, policy 3, std. 1-1.1 [a habeas corpus petition "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"].)

But our task of recruiting counsel has been made difficult by a serious shortage of qualified counsel willing to accept an appointment as habeas corpus counsel in a death penalty case. Quite few in number are the attorneys who meet this court's standards for representation and are willing to represent capital inmates in habeas corpus proceedings. The reasons are these: First, work on a capital habeas petition demands a unique combination of skills. The tasks of investigating potential claims and interviewing potential witnesses require the skills of a trial attorney, but the task of writing the petition, supported by points and authorities, requires the skills of an appellate attorney. Many criminal law practitioners possess one of these skills, but few have both.*fn4 Second, the need for qualified habeas corpus counsel has increased dramatically in the past 20 years: The number of inmates on California's death row has increased from 203 in 1987 to 670 in 2007. (Cal. Com. on the Fair Admin. of Justice, Final Rep. (2008) p. 121 (California Commission Final Report).)

California does have a Habeas Corpus Resource Center (HCRC), which the California Legislature established in 1998 to represent indigent capital inmates in post-conviction habeas corpus matters. (See Gov. Code, § 68661.) But, as has been observed, "the number of cases the HCRC can accept is limited both by a statutory cap on the number of attorneys it may hire and by available fiscal resources." (Alarcon, Remedies for California's Death Row Deadlock (2007) 80 So.Cal. L.Rev. 697, 739.)

Although hundreds of indigent death row inmates already have been provided with appointed habeas corpus counsel, approximately 300 of these inmates still lack such counsel. The search for qualified counsel can take eight to 10 years or longer. (Cal. Com. Final Rep., supra, at p. 122.) Here, ...

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