In re Reno (2012) · DecisionDepot

In re Reno

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Supreme Court Aug 30, 2012 No. S124660Published

Before: Werdegar

Filed 8/30/12

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

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 (footnote continued on next page)

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.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

Related research

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. 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.

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

[―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 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)

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 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

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).)

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.‖].)

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 (footnote continued on next page)

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 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 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 competently, that is, with ―diligence,‖ ―learning and skill,‖ and ―mental, emotional, and physical ability reasonably necessary for the performance

example, guideline 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 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 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

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 [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 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

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 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 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 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 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

(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.) 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,

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); 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); (footnote continued on next page)

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); 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); (footnote continued on next page)

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 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 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

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.

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.

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

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 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 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 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.)) 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

(footnote continued from previous page) 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); 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); (footnote continued on next page)

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 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

nonfrivolous issues in order to be deemed competent. (In re Sanders, supra, 21 Cal.4th at pp. 715-716.) Even if 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

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). 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). (footnote continued on next page)

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 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 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 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).)

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. 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. 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. 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

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 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

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 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 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, 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

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 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.) 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. 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 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

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 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. 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 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 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 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 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 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 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

In re Reno

IN THE SUPREME COURT OF CALIFORNIA

More from California Supreme Court

Related research

II. DISCUSSION

AI Brief