Court: Superior County: Los Angeles Judge: John A. Torribio
The opinion of the court was delivered by: Werdegar, J.
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;*fn1 see 28 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.*fn2 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 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 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.
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 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 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.
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 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.
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 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"*fn3 of the unexhausted claims from the 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,*fn4 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);
"(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.
"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.)*fn5 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 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 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.)
"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 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 post-conviction, 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.)*fn6
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 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 non-capital 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 non-capital 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 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.*fn7 "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 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]courts 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 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 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 defense*fn8 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 post-conviction position: vis-a-vis other states, we authorize more money to pay post-conviction counsel,*fn9 authorize more money for post-conviction investigation,*fn10 allow counsel to file habeas corpus petitions containing more pages,*fn11 and permit more time following conviction to file a petition for what is, after all, a request for collateral relief.*fn12 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,*fn13 or a change in the law,*fn14 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 pleadings such as the informal reply or the traverse,*fn15 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.
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 non-capital 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 non-cognizable--claims wastes scarce judicial resources. The sheer number of such 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.
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 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 corpus petition.*fn16 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 post-conviction 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 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.*fn17 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,*fn18 he has "acted as diligently 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 post-conviction period.
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 non-frivolous claim, however, is not in itself sufficient to establish prior counsel was 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 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 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 ...