The opinion of the court was delivered by: Kennard, J.
(this opn. follows companion case, S162413, also filed 8/30/10)
This matter is a companion to In re Morgan (Aug. 30, 2010, S162413) ___ Cal.4th ___ (Morgan).
After a conviction for capital murder and a sentence of death in 1998, petitioner invoked his statutory right to this court's appointment of habeas corpus counsel to challenge his conviction and death sentence. Because of a critical shortage of qualified attorneys willing to represent capital inmates in habeas corpus proceedings, petitioner had to wait eight and one-half years for counsel's appointment.*fn1
In September 2008, like the petitioner in Morgan, supra, ___ Cal.4th ___, this petitioner filed a cursory one-claim habeas corpus petition, without any supporting exhibits. He asked us to defer a decision on the petition until his habeas corpus counsel had an adequate opportunity to investigate various factual and legal matters that might lead to additional claims, to be presented in an amended petition. As in Morgan, the Attorney General opposed the request, urging us to deny the current habeas corpus petition as meritless. For reasons set forth below, we grant petitioner's request.
A jury convicted Samuel Zamudio Jimenez of two counts of robbery (Pen. Code, § 211)*fn2 and two counts of murder (§ 187). It also found true two special circumstance allegations of multiple murder (§ 190.2, subd. (a)(3)) and two special circumstance allegations of robbery murder (id., subd. (a)(17)). On October 5, 1998, the trial court imposed a sentence of death. His appeal to this court from the judgment of death was automatic. (§ 1239, subd. (b).)
In November 1998, petitioner requested that we appoint counsel to represent him on his automatic appeal and to file a habeas corpus petition on his behalf. In August 2002, we appointed counsel to represent petitioner on appeal. In June 2007, we appointed habeas corpus counsel -- the Habeas Corpus Resource Center. (The reasons for the delay in appointing counsel are discussed in pt. II, post.)
In April 2008, we issued a unanimous opinion in the automatic appeal. We vacated one multiple-murder special circumstance but otherwise affirmed the convictions and the judgment of death. (People v. Zamudio (2008) 43 Cal.4th 327, cert. den. sub nom. Kelly v. California (2008) 555 U.S. __ [172 L.Ed.2d 445].)*fn3
In September 2008, the Habeas Corpus Resource Center on petitioner's behalf filed in this court a petition for writ of habeas corpus. The petition lacks any supporting exhibits, and it alleges a single claim: that petitioner "was deprived of his right to effective assistance of counsel by trial counsel's constitutionally deficient performance at the guilt phase of his trial." Specifically, the petition faults trial counsel for not objecting to multiple instances of alleged prosecutorial misconduct, all of which appear in the appellate record. The petition also alleges, without elaboration, that trial counsel "rendered constitutionally deficient representation in failing adequately to investigate, prepare, and present meritorious guilt and special circumstance defenses [and] to competently litigate motions relating to the exclusion and admission of evidence." Included in the prayer for relief is a request that this court "[d]efer informal briefing and stay further proceedings on this petition until June 28, 2010, or the filing of an Amended Petition for Writ of Habeas Corpus, whichever is earlier, so that petitioner may file reasonably available documentation in support of the petition as well as any additional claims that may become known to him during that time."
In response, the Attorney General, as he did in Morgan, supra, ___ Cal.4th ___, filed a "People's Motion for Order to Show Cause." The Attorney General asked that we not defer a decision on the cursory habeas corpus petition, but that instead we deny it as meritless. As we did in Morgan, we issued an order construing the Attorney General's motion as an opposition to petitioner's request. We then asked both the Attorney General and petitioner 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."].)
After this court had heard oral argument in the matter, but within 36 months of habeas corpus counsel's appointment, petitioner submitted an "Amended Petition for Writ of Habeas Corpus" raising additional claims. We marked this document as "received" pending the outcome of this proceeding.
In California, an indigent prisoner who has been convicted of a capital crime and sentenced to death has a statutory right to this court's appointment of habeas corpus counsel to challenge the conviction and the sentence of death. (Gov. Code, § 68662.) But, as we noted in Morgan, because of the difficulty this court has experienced in recruiting qualified habeas corpus counsel, approximately 300 inmates on California's death row, including the petitioner in Morgan, are still without such counsel. (See Morgan, supra, ___ Cal.4th at p. ___ [p. 1].) Although petitioner here does have appointed habeas corpus counsel, the appointment did not occur until eight and one-half years after the judgment of death.
Under this court's rules, a habeas corpus petition challenging a judgment of death is presumed to be timely if filed within 36 months of counsel's appointment. (See Cal. Supreme Ct., Policies Regarding Cases Arising from Judgments of Death, policy 3, std. 1-1.1.) Implicit in this rule is the recognition that, in a capital case, investigating potential habeas corpus claims and preparing an adequate habeas corpus petition may take as long as three years. This is why: Before preparing the petition, counsel must consult with the petitioner and must review not only the trial record (here totaling more than 5,000 pages) but also the police reports and trial counsel's notes. In addition, habeas corpus counsel must investigate various factual and legal matters that may lead to potentially meritorious claims. These tasks become more challenging when, as occurred here, habeas corpus ...