In re Reno

Filed 10/31/12

IN THE SUPREME COURT OF CALIFORNIA

In re RENO )

) S124660

on Habeas Corpus. )

____________________________________)

ORDER MODIFYING OPINION AND

DENYING PETITION FOR REHEARING

THE COURT:

The opinion in this case, filed August 30, 2012, and appearing at 55 Cal.4th

428, is modified as follows:

In footnote 23 on pages 478-480 of 55 Cal.4th, delete the following lines:

―Claim No. 12 (same claim as claim No. 10); [¶] Claim No. 16 (admission of

Cornejo‘s perjurious testimony at the Evid. Code, § 402 hearing; Memro II, at

pp. 827-828);‖ and ―Claim No. 37 (Cornejo‘s testimony violated petitioner‘s Sixth

Amend. rights; Memro II, at pp. 827-828);‖

On page 500, second full paragraph on that page, delete the phrase ―and raise

the issue in the first petition‖ from the second sentence, which will then read as

follows: ―He contends that prior counsel‘s performance was ‗materially deficient‘ in

that he failed to adequately investigate the claim and discover triggering facts.‖`

This modification of the opinion does not affect the judgment.

The petition for rehearing is denied.

Filed 8/30/12 (unmodified version)

IN THE SUPREME COURT OF CALIFORNIA

In re RENO )

) S124660

on Habeas Corpus. )

____________________________________)

We issued an order to show cause in this case to address a problem that, over

time, has threatened to undermine the efficacy of the system for adjudicating petitions

for collateral relief in cases involving the death penalty. The cases of those

individuals sentenced to suffer the ultimate penalty in this state are automatically

appealed directly to this court, bypassing the intermediate Court of Appeal. (Cal.

Const., art. VI, § 11, subd. (a); Pen. Code, § 1239, subd. (b).) Should this court affirm

the judgment on direct appeal, such defendants are entitled to further challenge the

judgment by filing in this court a petition for a writ of habeas corpus.

In the event this court denies the habeas corpus petition, all (or nearly all)

capital defendants proceed to file a petition for a writ of habeas corpus in federal

district court. But because the federal courts require claims presented there to have

first been exhausted in state court (Baldwin v. Reese (2004) 541 U.S. 27, 29;1 see 28

1 ―Before seeking a federal writ of habeas corpus, a state prisoner must exhaust

available state remedies [citation], thereby giving the State the ‗ ― ‗opportunity to pass

upon and correct‘ alleged violations of its prisoners‘ federal rights.‖ ‘ Duncan v.

Henry, 513 U.S. 364, 365 (1995) (per curiam) . . . . To provide the State with the

necessary ‗opportunity,‘ the prisoner must ‗fairly present‘ his claim in each

appropriate state court (including a state supreme court with powers of discretionary

review), thereby alerting that court to the federal nature of the claim.‖ (Baldwin v.

Reese, supra, 541 U.S. at p. 29.)

U.S.C. § 2254(b)(1)(A)), capital defendants quite typically file a second habeas

corpus petition in this court to raise unexhausted claims. Third and fourth petitions

are not unknown. The potential for delay, as litigants bounce back and forth between

this court and the federal courts, is obvious.

The instant case involves the second habeas corpus petition filed in this court

by petitioner Reno.2 This ―exhaustion petition‖ (as such petitions are known because

they purport to seek to exhaust state claims in order to raise them in federal court) is

well over 500 pages long and by its own count raises 143 separate claims. Nearly all

of these claims raise legal issues that are, for a variety of reasons, not cognizable or

are procedurally barred in this renewed collateral attack. As we explain, in raising

claims already adjudicated by this court, and in raising new claims with no serious

attempt to justify why such claims were not raised on appeal or in Reno‘s first habeas

corpus petition, this petition exemplifies abusive writ practices that have become all

too common in successive habeas corpus petitions filed in this court. Such practices

justify denial of the petition without this court‘s passing on the substantive merits of

the abusive claims. Imposing financial sanctions on counsel, although a permissible

Interpreting title 28 United States Code section 2254, the Antiterrorism and

Effective Death Penalty Act of 1996 (AEDPA), the United States Supreme Court

recently held that review under the act ―is limited to the record that was before the

state court that adjudicated the claim on the merits. Section 2254(d)(1) refers, in the

past tense, to a state-court adjudication that ‗resulted in‘ a decision that was contrary

to, or ‗involved‘ an unreasonable application of, established law. This backward-

looking language requires an examination of the state-court decision at the time it was

made. It follows that the record under review is limited to the record in existence at

that same time i.e., the record before the state court.‖ (Cullen v. Pinholster (2011)

563 U.S. ___, ___ [131 S.Ct. 1388, 1398].)

2 Petitioner was formerly known in this court as Harold Ray Memro. In

December 1994, the Marin County Superior Court granted petitioner‘s request to

change his name to ―Reno.‖

2

consequence for abusive writ practices, will not be imposed in this case but remains

an option in future cases.

We take this opportunity to establish some new ground rules for exhaustion

petitions in capital cases that will speed this court‘s consideration of them without

unfairly limiting petitioners from raising (and exhausting) justifiably new claims.

Therefore, we direct that, in future cases, although a petitioner sentenced to death will

still be able to file his or her initial habeas corpus petition with no limit as to length,

second and subsequent petitions will be limited to 50 pages (or 14,000 words if

produced on a computer), subject to a good cause exception.

Partly in reliance on suggestions made by the parties and amici curiae, we

adopt measures by which petitions may be streamlined, making preparation and

review of the petition simpler and more efficient. As explained in more detail below,

such petitions must clearly and frankly disclose: (a) what claims have been raised and

rejected before, and where (either on appeal or on habeas corpus, with appropriate

record and opinion citations); (b) what claims could have been raised before (e.g.,

because they are based on facts in the appellate record or were known at the time the

first habeas corpus petition was filed), and why they were not raised at an earlier time;

(c) what claims are truly new (that is, they have not previously been presented to this

court); and (d) which claims were deemed unexhausted by the federal court and are

raised for the purpose of exhaustion. This last disclosure must be supported by a copy

of the federal court‘s order. This background information need not be realleged or

described in detail, but can and should be placed in a table or chart not to exceed 10

pages (which will not count against the 50-page limit) accompanying the petition.

This chart will permit the court to determine at a glance which claims are repetitive

and which are newly alleged, and will allow us to more expeditiously evaluate the

claims in the petition. It is, moreover, improper to state new claims or theories for the

first time in the informal reply or traverse. The same is true for allegations explaining

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why a procedural bar is inapplicable; such allegations must appear in the petition

proper. In addition, the lack of investigative funds will no longer be routinely

accepted as an excuse to justify a delayed presentation of a claim. We add that

petitioners may cite and incorporate by reference prior briefing, petitions, appellate

transcripts, and opinions in the same case but no longer need to separately request

judicial notice of such matters, as this court routinely consults these documents when

evaluating exhaustion petitions. Thus, an argument raised in a prior appeal or habeas

corpus petition and reraised in a subsequent petition may be incorporated by reference

and need not be reargued (subject to the discussion, post).

Finally, in recognition of circumstances in which counsel wish to present

issues purely to exhaust remedies in compliance with a federal exhaustion order, a

petitioner may elect to submit for our consideration, in a table or chart and in a very

summary way, some or all of the claims deemed unexhausted by the federal court.

This summary presentation may take the form of a brief statement of the issue and

reasons procedural bars may not apply, and no presentation of this nature will be

considered to be an abuse of the writ.

I. Background

As we describe below, petitioner committed his crimes in 1976 and 1978. He

was tried and convicted of his crimes and sentenced to death. We reversed that first

conviction for legal error in 1985. Following his retrial (in which he was again

sentenced to death), we affirmed his conviction and sentence in 1995. We also denied

his first habeas corpus petition that same year. We consider here his second habeas

corpus petition.

A. The Crime

―A jogger found the bodies of Scott Fowler and Ralph Chavez, Jr., sprawled

178 feet apart near a pond in John Anson Ford Park in Bell Gardens early on the

4

morning of July 26, 1976. Fowler was 12 years old, Chavez 10. Each victim‘s throat

had been cut with a sharp instrument. Witnesses testified that the boys had been

fishing for hours the day before, staying well into the evening. They were placing

their catch in a plastic gallon-size milk jug with the top excised so as to keep the

handle intact. The police found the jug nearby, along with bologna wrappers, which

were evidence of the boys‘ picnic. A trail of blood suggested that Chavez had tried to

run after the attack. The medical examiner fixed the time of death at about midnight.

―Carl Carter, Jr. [(hereafter Carl Jr.)], was reported missing in South Gate on

October 22, 1978. He was seven years old. His body was found some five days later

amidst dense scrub alongside a road. He had been strangled to death—a cord was still

bound around his neck. An enzyme found in his anal area suggested an attempt at

sodomy.‖ (People v. Memro (1995) 11 Cal.4th 786, 811 (Memro II).)

The police became aware of petitioner Reno when they were interviewing

people who might know where Carl Jr. could be found. When officers went to

petitioner‘s apartment, he introduced himself by saying, ― ‗ ―I knew you were coming

. . . . I[‘v]e been in Atascadero [State Prison] . . . .‖ ‘ ‖ (Memro II, supra, 11 Cal.4th

at p. 812.) Petitioner provided no useful information at that time, and the officers

returned to the Carter residence. While they were there, petitioner came over to drop

off a part for his Volkswagen with Carl Carter, Sr. (hereafter Carl. Sr.), who was a car

mechanic. Officer William Sims again asked petitioner where he had been and what

he might have seen near the time of Carl Jr.‘s disappearance. Petitioner said, ― ‗ ―I

remember now . . . .‖ ‘ ‖ (ibid.) and explained that, just before dark, he had come up

to the Carter residence to talk with Carl Sr. about working on his Volkswagen. Carl

Jr. was at the rear of the house and spoke briefly with petitioner. Carl Jr. then left

with petitioner to buy some soda. After hearing this story, Officer Sims arrested

petitioner for kidnapping.

5

Police interrogated petitioner three times that evening. At the third

interview, he confessed to killing Carl Jr. As petitioner explained, when Carl Jr.

said he wanted a soft drink, petitioner invited him into his car and drove to his

apartment, where he hoped to take some pictures of Carl Jr. in the nude. At one

point, however, Carl Jr. said he wanted to leave. This made petitioner angry. He

grabbed a clothesline lying on the nightstand, put it around Carl Jr.‘s neck, and

choked him. He then threw him on the bed, took off all his clothes but his shirt,

and taped his hands behind his back. According to petitioner, he then tried to

sodomize the child‘s dead body but was unsuccessful. Afterward, he wrapped

Carl Jr. in a blanket and dumped his body over the side of a rural road. The next

morning, after a troubled sleep, he went to work. (Memro II, supra, 11 Cal.4th at

pp. 812-813.)

At the interrogating officer‘s invitation to unburden himself further,

petitioner also confessed that about two years earlier he had visited John Anson

Ford Park in Bell Gardens to take pictures of young boys. Around dusk, he saw

two boys walking toward a pond with fishing poles. One of the boys, Scott, was

blond, White, and about 13 years old. His friend Ralph was Hispanic and about 12

years old. Petitioner lingered with the boys and thought about sexually molesting

Scott. Later, after Ralph had fallen asleep, Scott and petitioner walked to the other

side of the pond, where Scott said something to make petitioner angry. Petitioner

grabbed a knife out of his pocket, bent Scott backwards, and slit his throat. The

commotion apparently woke Ralph, who started screaming. Petitioner ran to the

other side of the pond, caught up with Ralph, and slit his throat as well. (Memro

II, supra, 11 Cal.4th at pp. 813-814.)

According to the interrogating officer, petitioner ― ‗started crying and

sobbing, and he said, ―Let‘s go find Carl, Jr.‘s, body.‖ ‘ ‖ (Memro II, supra,

11 Cal.4th at p. 814.) The police took petitioner to the area he had described and

6

found Carl Jr.‘s decomposing body with the cord still around his neck. (Id. at pp.

811, 814.)

Officers then went to petitioner‘s apartment, where they found a boy‘s

shoes, socks, and clothing in a suitcase underneath a workbench, as well as a

length of clothesline similar to that used to strangle Carl Jr. Police also found

sexually explicit magazines featuring unclothed young men and boys, and

hundreds of photographs of boys, including neighborhood children. (Memro II,

supra, 11 Cal.4th at p. 814.) The next day, petitioner spoke with an officer from

the Bell Gardens Police Department and repeated his confession to having killed

Scott Fowler and Ralph Chavez. (Id. at pp. 814-815.) At trial, petitioner

presented an alibi defense to the charges involving Fowler and Chavez and

attempted to show that two other men seen near or talking to the victims were the

perpetrators. (Id. at pp. 815-816.) He conceded he had killed Carl Jr. (Id. at

p. 816.) The jury convicted petitioner as charged and sentenced him to death.

B. Legal Proceedings

Petitioner‘s first judgment (convicting him of three murders and imposing the

death penalty) was reversed by this court for Pitchess error. (People v. Memro (1985)

38 Cal.3d 658 (Memro I); see Pitchess v. Superior Court (1974) 11 Cal.3d 531.) On

retrial in 1987, the jury convicted petitioner of two counts of first degree murder (Carl

Jr., Chavez) and one count of second degree murder (Fowler), found true a multiple-

murder special circumstance, and again returned a verdict of death. We affirmed

those convictions and the death sentence in November 1995 (Memro II, supra, 11

Cal.4th 786), and the United States Supreme Court subsequently denied a petition for

writ of certiorari (Memro v. California (1996) 519 U.S. 834).

Petitioner timely filed a petition for a writ of habeas corpus on January 19,

1995, his first such petition in this court. The petition raised 12 claims, with some

7

additional subclaims. We summarily denied this petition in June of that same year.

(In re Memro on Habeas Corpus, S044437.) Our denial was solely on the merits; as

is our standard practice, the denial was by order with no opinion. (See generally

People v. Romero (1994) 8 Cal.4th 728, 737 [―If the court determines that the petition

does not state a prima facie case for relief or that the claims are all procedurally

barred, the court will deny the petition outright, such dispositions being commonly

referred to as ‗summary denials.‘ ‖]; Crittenden v. Ayers (9th Cir. 2010) 624 F.3d 943,

960 [a summary denial by the Cal. Supreme Ct. ―is a denial on the merits‖].) Unless

otherwise stated in the order, such summary denials indicate this court has considered

and rejected the merits of each claim raised. (In re Clark (1993) 5 Cal.4th 750, 769,

fn. 9; see Walker v. Martin (2011) 562 U.S. ___, ___ [131 S.Ct. 1120, 1124] [in

California, an order ―denying a petition without explanation or citation ordinarily

ranks as a disposition on the merits‖]; Harrington v. Richter (2011) 562 U.S. ___, ___

[131 S.Ct. 770, 784-785] [―When a federal claim has been presented to a state court

and the state court has denied relief, it may be presumed that the state court

adjudicated the claim on the merits in the absence of any indication or state-law

procedural principles to the contrary.‖].)

On September 8, 1998, petitioner filed a petition for a writ of habeas corpus in

federal district court, raising 74 claims for relief. (Reno v. Calderon, Warden, CV 96-

2768 (RT).) In 1999, that court struck ―many‖3 of the unexhausted claims from the

3 The petition for a writ of habeas corpus currently before us nowhere states

which claims were deemed unexhausted for federal purposes. The return merely

states ―many of the 74 grounds for relief‖ were stricken by the federal court, but does

not list which ones. The traverse similarly does not identify which claims were

deemed unexhausted by the federal court. We may surmise that not all of the 143

claims now raised were found to be unexhausted in federal court. From this we may

further infer that many of the 143 claims now raised were considered exhausted by the

federal court, raising the possibility that their re-presentation here, without a specific,

articulated, and justifiable reason for doing so, was done for purposes of delay. In the

future, as a judicially declared rule of criminal procedure, we require that such

8

federal petition, held the matter in abeyance, and directed petitioner to file a new

petition in state court, exhausting those claims that had not yet been presented to a

state court. Reno‘s federally appointed counsel did not do so and instead withdrew

from the case in 2001. In September 2002, this court appointed present counsel to

represent Reno.

On May 10, 2004, petitioner filed the present habeas corpus petition, his

second in this court. Far from the 12 claims he originally raised in this court in 1995,

the current petition raises 143 claims for relief,4 is 521 pages long, and is supported

by two volumes of exhibits. After receiving the People‘s informal response in May

2005 and petitioner‘s informal reply in February 2006 (Cal. Rules of Court, rule

8.385(b); People v. Romero, supra, 8 Cal.4th at p. 737 [court may request informal

response from petitioner‘s custodian]), we issued the following order in September

2010:

―The Secretary of the Department of Corrections and Rehabilitation is ordered

to show cause before this court, when the matter is placed on calendar, whether the

petition for writ of habeas corpus filed in this case should be considered an abuse of

the writ (In re Clark (1993) 5 Cal.4th 750, 769-770), for the following reasons:

―(1) For failure to allege sufficient facts indicating the claims in the petition are

timely or fall within an exception to the rule requiring timely presentation of claims

(In re Robbins (1998) 18 Cal.4th 770, 780-781; In re Clark, supra, 5 Cal.4th at pp.

797-798);

exhaustion petitions clearly and affirmatively allege which claims were deemed by

the federal court to be exhausted, and which were not. Such allegations must be

supported by ―reasonably available documentary evidence‖ (People v. Duvall (1995)

9 Cal.4th 464, 474), such as a copy of the district court‘s order.

4 In 2007, the federal district court temporarily lifted its stay to allow petitioner

to file a second amended petition in that court, increasing the claims raised from 74 to

143. The court then reimposed the stay.

9

―(2) For failure to allege sufficient facts indicating certain claims in the petition

are cognizable despite having been raised and rejected on appeal (In re Waltreus

(1965) 62 Cal.2d 218, 225; In re Harris (1993) 5 Cal.4th 813, 829-841);

‖(3) For failure to allege sufficient facts indicating certain claims in the petition

are cognizable despite the fact they could have been raised on appeal but were not (In

re Dixon (1953) 41 Cal.2d 756, 759; In re Harris, supra, 5 Cal.4th at pp. 829-841);

―(4) For failure to allege sufficient facts indicating certain claims in the petition

are cognizable despite having been raised and rejected in petitioner‘s first habeas

corpus proceeding, In re Memro on Habeas Corpus, S044437, petition denied June

28, 1995 (In re Miller (1941) 17 Cal.2d 734, 735);

―(5) For failure to allege sufficient facts indicating certain claims in the petition

are cognizable despite the fact they could have been raised in the first petition (In re

Clark, supra, 5 Cal.4th at pp. 774-775; In re Horowitz (1949) 33 Cal.2d 534, 546-

547);

―(6) For failure to allege sufficient facts indicating that claims of insufficient

evidence at trial to support a conviction are cognizable in a petition for a writ of

habeas corpus (In re Lindley (1947) 29 Cal.2d 709, 723);

―(7) For failure to allege sufficient facts indicating that claims based on the

Fourth Amendment are cognizable in a petition for a writ of habeas corpus (In re

Sterling (1965) 63 Cal.2d 486, 487-488; In re Sakarias (2005) 35 Cal.4th 140, 169);

and

―(8) For raising legal issues related to petitioner‘s first trial, when his

conviction and sentence resulting from that trial were reversed by this court (People v.

Memro (1985) 38 Cal.3d 658), absent any plausible explanation why such alleged

errors affected the fairness of his subsequent retrial.

―The return is to be served and filed in this court on or before October 16,

2010.

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―The traverse is to be served and filed within 30 days after the return is filed.

―All discussion or briefing of the merits of any claim set forth in the petition is

deferred pending further order of this court.‖

The Secretary of the Department of Corrections and Rehabilitation, represented

by the Attorney General, thereafter filed a return, and petitioner filed his traverse.

(People v. Duvall, supra, 9 Cal.4th at pp. 475-477; see Cal. Rules of Court, rule

8.386.) Following oral argument on May 1, 2012, we directed the parties, and

interested amici curiae, to submit letter briefs addressing whether imposing financial

sanctions on counsel was an appropriate response for abuse of the writ, and whether

this court should impose page limits on exhaustion petitions.

II. Discussion

A. Habeas Corpus and Abuse of the Writ

The right to habeas corpus is guaranteed by the state Constitution and ―may not

be suspended unless required by public safety in cases of rebellion or invasion.‖ (Cal.

Const., art. I, § 11.)5 Frequently used to challenge criminal convictions already

affirmed on appeal, the writ of habeas corpus permits a person deprived of his or her

freedom, such as a prisoner, to bring before a court evidence from outside the trial or

appellate record, and often represents a prisoner‘s last chance to obtain judicial

review. ― ‗ ―[H]abeas corpus cuts through all forms and goes to the very tissue of the

structure. It comes in from the outside . . . and although every form may have been

preserved opens the inquiry whether they have been more than an empty shell.‖ ‘ ‖

(In re Harris, supra, 5 Cal.4th at p. 828, fn. 6, quoting Frank v. Mangum (1915) 237

U.S. 309, 346.) ―Historically, habeas corpus provided an avenue of relief for only

5 The United States Constitution has a similar provision. (U.S. Const., art. I, § 9,

cl. 2 [―The privilege of the writ of habeas corpus shall not be suspended, unless when

in cases of rebellion or invasion the public safety may require it.‖].)

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those criminal defendants confined by a judgment of a court that lacked fundamental

jurisdiction, that is, jurisdiction over the person or subject matter‖ (Harris, at p. 836),

but that view has evolved in modern times and habeas corpus now ―permit[s] judicial

inquiry into a variety of constitutional and jurisdictional issues‖ (People v. Duvall,

supra, 9 Cal.4th at p. 476). ―Despite the substantive and procedural protections

afforded those accused of committing crimes, the basic charters governing our society

wisely hold open a final possibility for prisoners to prove their convictions were

obtained unjustly. [Citations.] A writ of ‗[h]abeas corpus may thus provide an

avenue of relief to those unjustly incarcerated when the normal method of relief—i.e.,

direct appeal—is inadequate.‘ ‖ (In re Sanders (1999) 21 Cal.4th 697, 703-704; see

In re Robbins, supra, 18 Cal.4th at p. 777 [―there may be matters that undermine the

validity of a judgment or the legality of a defendant‘s confinement or sentence, but

which are not apparent from the record on appeal‖ for which habeas corpus is

appropriate].)

Although habeas corpus thus acts as a ―safety valve‖ (see Ledewitz, Habeas

Corpus as a Safety Valve for Innocence (1990-1991) 18 N.Y.U. Rev. L. & Soc.

Change 415) or ―escape hatch‖ (Comment, Repetitive Post-Conviction Petitions

Alleging Ineffective Assistance of Counsel: Can the Pennsylvania Supreme Court

Tame the ―Monster‖? (1981-1982) 20 Duq. L.Rev. 237) for cases in which a criminal

trial has resulted in a miscarriage of justice despite the provision to the accused of

legal representation, a jury trial, and an appeal, this ―safety valve‖ role should not

obscure the fact that ―habeas corpus is an extraordinary, limited remedy against a

presumptively fair and valid final judgment‖ (People v. Gonzalez (1990) 51 Cal.3d

1179, 1260, italics added). Courts presume the correctness of a criminal judgment (In

re Lawley (2008) 42 Cal.4th 1231, 1240), for before the state may obtain such a

judgment, ―a defendant is afforded counsel and a panoply of procedural protections,

including state-funded investigation expenses, in order to ensure that the trial

12

proceedings provide a fair and full opportunity to assess the truth of the charges

against the defendant and the appropriate punishment‖ (In re Robbins, supra, 18

Cal.4th at p. 777). Following a conviction, the defendant has the right to an automatic

appeal, assisted by competent counsel. (Ibid.) If a criminal defendant has

unsuccessfully tested the state‘s evidence at trial and appeal and wishes to mount a

further, collateral attack, ― ‗all presumptions favor the truth, accuracy, and fairness of

the conviction and sentence; defendant thus must undertake the burden of overturning

them. Society‘s interest in the finality of criminal proceedings so demands, and due

process is not thereby offended.‘ ‖ (People v. Duvall, supra, 9 Cal.4th at p. 474,

quoting Gonzalez, at p. 1260.)

This limited nature of the writ of habeas corpus is appropriate because use of

the writ tends to undermine society‘s legitimate interest in the finality of its criminal

judgments, a point this court has emphasized many times. In In re Clark, supra, 5

Cal.4th at page 776, for example, we explained: ― ‗[T]he writ strikes at finality. One

of the law‘s very objects is the finality of its judgments. Neither innocence nor just

punishment can be vindicated until the final judgment is known. ―Without finality,

the criminal law is deprived of much of its deterrent effect.‖ [Citation.] And when a

habeas petitioner succeeds in obtaining a new trial, the ― ‗erosion of memory‘ and

‗dispersion of witnesses‘ that occur with the passage of time,‖ [citation], prejudice the

government and diminish the chances of a reliable criminal adjudication. . . .‖

(Quoting McCleskey v. Zant (1991) 499 U.S. 467, 491.) More recently, this court

opined that ―[o]ur cases have long emphasized that habeas corpus is an extraordinary

remedy ‗and that the availability of the writ properly must be tempered by the

necessity of giving due consideration to the interest of the public in the orderly and

reasonably prompt implementation of its laws and to the important public interest in

the finality of judgments.‘ ‖ (In re Morgan (2010) 50 Cal.4th 932, 944.)

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―As one legal scholar put it: ‗A procedural system which permits an endless

repetition of inquiry into facts and law in a vain search for ultimate certitude implies a

lack of confidence about the possibilities of justice that cannot but war with the

effectiveness of the underlying substantive commands [punishing criminal acts]. . . .

There comes a point where a procedural system which leaves matters perpetually

open no longer reflects humane concern but merely anxiety and a desire for

immobility.‘ (Bator, Finality in Criminal Law and Federal Habeas Corpus for State

Prisoners (1963) 76 Harv. L.Rev. 441, 452–453.)‖ (In re Clark, supra, 5 Cal.4th at

p. 805.) ― ‗ ―No one, not criminal defendants, not the judicial system, not society as a

whole is benefited by a judgment providing a man shall tentatively go to jail today,

but tomorrow and every day thereafter his continued incarceration shall be subject to

fresh litigation.‖ ‘ ‖ (In re Harris, supra, 5 Cal.4th at p. 831, quoting Mackey v.

United States (1971) 401 U.S. 667, 691 (conc. & dis. opn. of Harlan, J.).)

Given the ample opportunities available to a criminal defendant to vindicate

statutory rights and constitutional guarantees, and consistent with the importance of

the finality of criminal judgments, this court has over time recognized certain rules

limiting the availability of habeas corpus relief. Sometimes called ―procedural bars‖

(see, e.g., In re Martinez (2009) 46 Cal.4th 945, 950, fn. 1; In re Lawley, supra, 42

Cal.4th at p. 1239; People v. Kelly (2006) 40 Cal.4th 106, 121; Jackson v. Roe (9th

Cir. 2005) 425 F.3d 654, 656, fn. 2), these rules require a petitioner mounting a

collateral attack on a final criminal judgment by way of habeas corpus to prosecute

his or her case without unreasonable delay, and to have first presented his or her

claims at trial and on appeal, if reasonably possible. Strict limits exist for claims not

raised in a litigant‘s first habeas corpus petition. These rules establish what the high

court, addressing a similar issue, described as ―a background norm of procedural

regularity binding on the petitioner‖ (McCleskey v. Zant, supra, 499 U.S. at p. 490),

and permit the resolution of legitimate claims in the fairest and most efficacious

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manner possible. Untimely claims, or claims already presented to this court and

resolved on the merits, are as a general matter barred from consideration. Claims

alleging the evidence was insufficient to convict, or that police violated a litigant‘s

Fourth Amendment rights, are not cognizable on habeas corpus for other,

nonprocedural reasons. These rules, essentially barriers to access deemed necessary

for institutional reasons, are of course subject to exceptions designed to ensure

fairness and orderly access to the courts, but the judicial machinery is structured to

allow one accused or convicted of a crime—in the vast majority of cases—to

vindicate his or her rights well before a postconviction, postappeal writ of habeas

corpus becomes necessary. Because a criminal defendant enjoys the right to

appointed trial counsel, to a jury trial, and to an appeal, the various procedural

limitations applicable to habeas corpus petitions are designed to ensure legitimate

claims are pressed early in the legal process, while leaving open a ―safety valve‖ for

those rare or unusual claims that could not reasonably have been raised at an earlier

time. The procedural rules applicable to habeas corpus petitions are thus ―a means of

protecting the integrity of our own appeal and habeas corpus process‖ (In re Robbins,

supra, 18 Cal.4th at p. 778, fn. 1, italics omitted) and vindicate ―the interest of the

public in the orderly and reasonably prompt implementation of its laws and to the

important public interest in the finality of judgments‖ (id. at p. 778). In short, our

procedural rules ―are necessary . . . to deter use of the writ to unjustifiably delay

implementation of the law . . . .‖ (In re Clark, supra, 5 Cal.4th at p. 764.)6

Insisting on the prompt presentation of legal claims, most normally at trial and

on appeal, but certainly by the time of the first habeas corpus petition, also works to

conserve scarce judicial resources, for collateral challenges to final criminal

judgments exact a heavy cost on the judiciary. ―Successive petitions . . . waste scarce

6 We discuss these procedural bars in more detail below.

15

judicial resources as the court must repeatedly review the record of the trial in order to

assess the merits of the petitioner‘s claims and assess the prejudicial impact of the

constitutional deprivation of which he complains.‖ (In re Clark, supra, 5 Cal.4th at

p. 770; cf. McCleskey v. Zant, supra, 499 U.S. at p. 491 [―Federal collateral litigation

places a heavy burden on scarce federal judicial resources, and threatens the capacity

of the system to resolve primary disputes.‖].) The United States Supreme Court has

recently recognized the heavy burden this court shoulders in reviewing the

―staggering number of habeas petitions each year‖ in noncapital cases. (Walker v.

Martin, supra, 562 U.S. at p. ___ [131 S.Ct. at pp. 1125-1126].) These concerns are

magnified in capital cases, where the appellate records typically are longer, the habeas

corpus petitions filed are more extensive, and the legal fees paid are substantially

higher than in noncapital cases. Repetitive petitions consume finite judicial resources,

and evaluating them delays this court from turning its attention to timely filed first

petitions that may raise an issue of potential merit. As Justice Robert Jackson once

observed when commenting on the ―flood[] of stale, frivolous and repetitious petitions

inundat[ing] the docket of the lower courts and swell[ing] our own‖: ―It must

prejudice the occasional meritorious application to be buried in a flood of worthless

ones. He who must search a haystack for a needle is likely to end up with the attitude

that the needle is not worth the search.‖ (Brown v. Allen (1953) 344 U.S. 443, 536,

537 (conc. opn. of Jackson, J.).)

With this background in mind, we conclude a petitioner‘s failure, in a second

or successive habeas corpus petition before this court, both to acknowledge the

limitations of habeas corpus as an avenue of collateral attack and to make a plausible

effort to explain why the claims raised are properly before the court, can be

considered an abuse of the writ process. In this way, habeas corpus is no different

from other types of civil writs that constitute extraordinary relief. (See People v. Kim

(2009) 45 Cal.4th 1078, 1094 [― ‗The writ of error coram nobis is not a catch-all by

16

which those convicted may litigate and relitigate the propriety of their convictions ad

infinitum.‘ ‖]; Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The

Rutter Group 1989) ¶ 15:1.2, p. 15-1 (rev. #1, 2011) [addressing civil writs: ―Unlike

appeals, which are heard as a matter of right, relief through writ review is deemed

extraordinary . . .‖].)

The abuse of the writ concept is not new; this court invoked it 100 years ago in

Matter of Ford (1911) 160 Cal. 334. In that case, the defendant was at liberty, having

posted bail before trial. Wishing to challenge the trial court‘s failure to grant his

motion to dismiss the charges on speedy trial grounds, the defendant maneuvered to

submit himself to the sheriff‘s custody for a short time so as to prosecute a petition for

a writ of habeas corpus.7 ―It was evidently intended that the custody should endure

no longer than was necessary to make this application and was solely for the purpose

of making out a case to support the issuance of the writ.‖ (Id. at pp. 340-341.)

Although his speedy trial issue likely had merit, this court nevertheless denied relief

by relying on an abuse of the writ rationale: ―[V]oluntary imprisonment, had for the

sole purpose of making a case on habeas corpus, was contrary to the spirit, purpose,

and object of the writ and was an abuse of it.‖ (Id. at p. 342, original italics omitted,

italics added.)

Although we have had few occasions to address the abuse of the writ doctrine

in the decades following Matter of Ford, supra, 160 Cal. 334 (but see In re Swain

(1949) 34 Cal.2d 300, 303 [―It should be noted that no question of the abuse of the

writ of habeas corpus is before us . . .‖]), our cases have repeatedly said we do not

7 ―In previous eras, the custody requirement [for habeas corpus] was interpreted

strictly to mean actual physical detention. [Citations.] This view has since been

somewhat relaxed. Thus, ‗the decisional law of recent years has expanded the writ‘s

application to persons who are determined to be in constructive custody. Today, the

writ is available to one on . . . bail (In re Petersen (1958) 51 Cal.2d 177 [331 P.2d

24]) . . . .‘ ‖ (People v. Villa (2009) 45 Cal.4th 1063, 1069.)

17

condone abusive writ petitions. (In re Sanders, supra, 21 Cal.4th at p. 721 [noting

that this court ― ‗has never condoned abusive writ practice‘ ‖]; In re Clark, supra, 5

Cal.4th at p. 769 [same]; see also In re Gallego (1998) 18 Cal.4th 825, 842 (conc. &

dis. opn. of Brown, J.) [stating she does not ―countenance abuse of the writ‖];

Sanders, at p. 731 (dis. opn. of Baxter, J.) [noting this court‘s timeliness rules

―discourage abuse of the writ‖].) ―[C]ourts have regularly applied the doctrine of

‗abuse of the writ‘ and refused to entertain a claim presented for the first time in a

second or subsequent petition for writ of habeas corpus.‖ (In re Bittaker (1997) 55

Cal.App.4th 1004, 1012, fn. 3.)

We addressed the abuse of the writ doctrine in a comprehensive way in In re

Clark, supra, 5 Cal.4th 750. In that capital case, we had on April 5, 1990, affirmed

both the guilt and penalty judgments on appeal (People v. Clark (1990) 50 Cal.3d

583) and thereafter, on May 15, 1991, denied Clark‘s first habeas corpus petition.

Three months after our denial, Clark filed a second petition raising several claims that

were merely ―restatements or reformulations of arguments made and rejected on

appeal or in the prior habeas corpus petition.‖ (In re Clark, at p. 763.) Although he

presented other claims for the first time, these could have been raised on appeal or in

the first habeas corpus petition because they were based on facts long known to Clark.

This repetitive petition included no allegations suggesting why Clark was renewing

stale claims, or why the new claims had not been presented to the court previously,

either on appeal or in the first habeas corpus petition. (Ibid.)

We concluded: ―This court has never condoned abusive writ practice or

repetitious collateral attacks on a final judgment. Entertaining the merits of

successive petitions is inconsistent with our recognition that delayed and repetitious

presentation of claims is an abuse of the writ. [¶] ‗It is the policy of this court to deny

an application for habeas corpus which is based upon grounds urged in a prior petition

which has been denied, where there is shown no change in the facts or the law

18

substantially affecting the rights of the petitioner.‘ ‖ (In re Clark, supra, 5 Cal.4th at

p. 769.) Regarding the presentation of new grounds based on matters known to the

petitioner at the time of a previous petition, we observed that ― ‗in In re Drew (1922)

188 Cal. 717, 722 [207 P. 249], it was pointed out that the applicant for habeas corpus

―not only had his day in court to attack the validity of this judgment, but . . . had

several such days, on each of which he could have urged this objection, but did not do

so‖; it was held that ―The petitioner cannot be allowed to present his reasons against

the validity of the judgment against him piecemeal by successive proceedings for the

same general purpose.‖ ‘ ‖ (Clark, at p. 770.) Our conclusion, we noted, was

consistent with the abuse of the writ doctrine as applied in the federal courts, as

explained in McCleskey v. Zant, supra, 499 U.S. 467 (Clark, at pp. 755-780, 787-

790), as well as the rules in other states (id. at pp. 791-795).

Clark thus reiterated the abuse of the writ doctrine in the modern era and

established a strict pleading standard: ―[T]he petitioner . . . bears the initial burden of

alleging the facts on which he relies to explain and justify delay and/or a successive

petition.‖ (In re Clark, supra, 5 Cal.4th at p. 798, fn. 35.) Because the petitioner in

Clark did not ―state[] specific facts to establish that his newly made claims were

presented without substantial delay‖ or explain why any of the claims were based on a

legal error involving ―a fundamental miscarriage of justice,‖ this court denied the

petition without ―consider[ing] the merits of any of the claims.‖ (Id. at p. 799.)

Subsequent cases have echoed Clark‘s strict pleading standard. (In re Robbins, supra,

18 Cal.4th at p. 805 [citing the Clark pleading requirement with approval when

addressing a delayed petition]; In re White (2004) 121 Cal.App.4th 1453, 1481

[same].)

Despite its in-depth discussion of the abuse of the writ doctrine, the

consequences for the petitioner and his counsel in In re Clark, supra, 5 Cal.4th 750,

were relatively mild. Faced with a petitioner who had filed a successive and

19

repetitive petition raising untimely claims, all of which had been either raised and

rejected on appeal or in a prior habeas corpus petition, or which could have been (but

were not) presented on appeal or in the first habeas corpus petition, we simply denied

the petition summarily and did not consider the substantive merits of the claims. (Id.

at p. 799.)

In the years following In re Clark, however, perhaps out of an abundance of

caution, this court has in capital cases continued to address the substantive merits of

abusive and potentially abusive habeas corpus petitions. That is, when considering

second and subsequent habeas corpus petitions, in addition to denying claims on

procedural grounds (signified by the citation of various procedural bars in our denial

orders), we have assessed the substantive merits of barred claims and denied them on

those merits as well.

In a capital case, a detailed and comprehensive first state habeas corpus

petition serves an important purpose, for courts can rest assured that, between the

trial, the appeal, and the habeas corpus petition, the defense8 has had ample

opportunity to raise all meritorious claims, the adversarial process has operated

correctly, and both this court and society can be confident that, before a person is put

to death, the judgment that he or she is guilty of the crimes and deserves the ultimate

punishment is valid and supportable. Indeed, a system of justice that does not allow

for the fair and timely presentation of claims of innocence or the absence of fair

procedure would lack credibility. These concerns perhaps underlie the decision of

this court, and this state, to assume a generous postconviction position: vis-à-vis

8 Our standards for counsel who are eligible for appointment to represent capital

defendants on habeas corpus are high. (See In re Morgan, supra, 50 Cal.4th at p. 938,

fn. 4.)

20

other states, we authorize more money to pay postconviction counsel,9 authorize more

money for postconviction investigation,10 allow counsel to file habeas corpus

9 In California, attorney fees for habeas corpus counsel in capital cases is

governed by the Supreme Court Policies Regarding Cases Arising From Judgments of

Death (hereafter Supreme Court Policies), policy 3, standard 2-1 et seq. Those

standards in turn refer to the Payment Guidelines for Appointed Counsel Representing

Indigent Criminal Appellants in the California Supreme Court. Guideline II.A

provides for a per hour rate of $145. Guideline II.I.3.ii sets forth the benchmarks for

particular tasks in habeas corpus cases. For separate habeas corpus counsel, the upper

benchmark for client contact, investigation, and preparation of the petition and an

informal reply is 690 hours, or over $100,000, excluding the fee for reviewing the

appellate record, for which counsel can bill at 50 pages per hour. In a typical case in

which the record (clerk‘s and reporter‘s transcripts) is about 10,000 pages, that

translates into 200 hours of record review, totaling an additional $29,000. In our

experience, counsel appointed to prepare and file habeas corpus petitions for death

row inmates quite often earn well over the upper benchmark of $130,000. In many

cases, capital habeas corpus counsel earn over $200,000 for a single case.

In Florida, by contrast, capital habeas corpus counsel receives $100 per hour,

up to $2,500 prior to filing the petition. Upon filing the petition in the trial court,

counsel can receive up to an additional $20,000 (at $100 per hour) and can bill an

additional $20,000 after the trial court grants or denies the petition. Thus, counsel can

presumably earn up to $42,500, and more if he or she takes the case to the Florida

Supreme Court. (Fla. Stat., § 27.711, subd. (4)(a)-(f).)

In Texas, habeas corpus counsel is entitled to no more than $25,000 from the

state in ―[c]ompensation and expenses‖ combined (Tex. Code Crim. Proc., art.

11.071, § 2A, subd. (a)), although an individual county can pay more.

10 Under our rules, habeas corpus counsel is preauthorized to spend up to $50,000

investigating a postconviction habeas corpus petition. (Supreme Ct. Policies, supra,

policy 3, std. 2-2.1.)

In Florida, the same attorney may spend, with trial court approval, $40 per

hour for investigator services, up to a total of $15,000 (Fla. Stat., § 27.711, subd. (5))

and may spend, with court approval, up to $15,000 in miscellaneous expenses

investigating postconviction claims (id., § 27.711, subd. (6)). More is available upon

a showing that ―extraordinary circumstances‖ exist. (Ibid.)

In Texas, habeas corpus counsel is entitled to no more than $25,000 from the

state in ―[c]ompensation and expenses‖ combined. (Tex. Code Crim. Proc., art.

11.071, § 2A, subd. (a).)

21

petitions containing more pages,11 and permit more time following conviction to file a

petition for what is, after all, a request for collateral relief.12 Any such justification

for tolerating a detailed and comprehensive first petition all but disappears for second

and subsequent petitions in this court. Absent the unusual circumstance of some

critical evidence that is truly ―newly discovered‖ under our law,13 or a change in the

11 There is no page limit for habeas corpus petitions in California. (See

discussion, post.)

In Florida, a first habeas corpus petition ―shall not exceed 75 pages (Fla. Rules

Crim. Proc., § 3.851(e)(1)), and subsequent petitions ―shall not exceed 25 pages‖ (id.,

subd. (e)(2)).

There is no page limit in Texas, but the strict time limits for filing

postconviction habeas corpus petitions probably act to constrain the length of such

petitions. (Tex. Code Crim. Proc., art. 11.071, § 4, subd. (a) [petition must be filed

within 180 days after counsel is appointed or 45 days after the state‘s brief on appeal,

whichever is later].) The same is probably true in Pennsylvania, where a petition for

postconviction relief must be filed ―within one year of the date the judgment becomes

final.‖ (Pa. Rules of Crim. Proc., rule 901(A).)

12 Supreme Court Policies, policy 3, standard 1-1.1 provides that, to be

considered presumptively timely, a habeas corpus petition must be filed within 180

days of the final due date for the reply brief on appeal or within 36 months after

counsel is appointed. Due to the difficulty in finding counsel, in many cases habeas

corpus counsel is not even appointed until long after the appeal, meaning we may

receive a first habeas corpus petition five or more years after deciding the appeal and

still be required, under our rules, to consider the petition as timely.

In Florida, by contrast, the petition must be filed within one year of the

judgment‘s finality (Fla. Rules Crim. Proc., § 3.851(d)(1)), which in most cases

occurs when the United States Supreme Court denies certiorari (id., subd. (d)(1)(A)).

Florida apparently does not have the time lag in appointing counsel that we

experience, as their rules provide for the appointment of institutional counsel or

private conflict counsel ―[u]pon issuance of the mandate affirming a judgment and

sentence of death on direct appeal.‖ (Id., § 3.851(b)(1); cf. Herrera v. Collins (1993)

506 U.S. 390, 410 [―Texas is one of 17 States that requires a new trial motion based

on newly discovered evidence to be made within 60 days of judgment.‖].)

13 To support a collateral attack, newly discovered evidence of innocence must

cast fundamental doubt on the accuracy of the trial and, if believed, must undermine

the prosecution‘s entire case and point ― ‗ ―unerringly to innocence.‖ ‘ ‖ (In re

Lawley, supra, 42 Cal.4th at p. 1239.) New evidence also may relate to claims of jury

or prosecutorial misconduct, or occasionally to other issues.

22

law,14 such successive petitions rarely raise an issue even remotely plausible, let alone

state a prima facie case for actual relief. In the 18 years since In re Clark, supra, 5

Cal.4th 750, experience has taught that in capital cases, petitioners frequently file

second, third, and even fourth habeas corpus petitions raising nothing but

procedurally barred claims.

As we explain below, the petition for a writ of habeas corpus in the present

case is an example of an abusive writ practice: voluminous in size and abounding in

detail, the petition nevertheless raises claims almost all of which are procedurally

barred. Many claims are barred for more than one reason. Counsel have an ethical

duty to notify the court if an issue in the petition is procedurally barred. (Bus. & Prof.

Code, § 6068 [―It is the duty of an attorney to do all of the following: [¶] . . .

[¶] (d) To employ, for the purpose of maintaining the causes confided to him or her

those means only as are consistent with truth, and never to seek to mislead the judge

or any judicial officer by an artifice or false statement of fact or law.‖].) Petitioner

was permitted three opportunities to allege facts explaining why a particular

procedural bar did not apply: in the petition proper, in the informal reply (Cal. Rules

of Court, rule 8.385(b)(3)), and in the traverse filed in response to the People‘s return

(People v. Duvall, supra, 9 Cal.4th at pp. 476-477). Although normally the

justification for raising a claim must be stated in the petition itself and not in later

14 For example, following the high court‘s decision in Atkins v. Virginia (2002)

536 U.S. 304, which held that execution of mentally retarded persons violated the

Eighth Amendment to the United States Constitution, some death row inmates whose

initial habeas corpus petitions had already been denied by this court filed new

petitions alleging they were ineligible for execution due to their retardation. This

court issued orders to show cause in some of those cases despite the successive nature

of the petitions involved, recognizing Atkins represented a change in the law excusing

both the delay and successive nature of the petitions.

23

pleadings such as the informal reply or the traverse,15 in this case we will consider

arguments raised for the first time in the traverse because our order to show cause

specifically directed petitioner to provide the court with such information.

15 We explained the proper procedure in In re Clark, supra, 5 Cal.4th at

page 781, footnote 16: ―The court determines on the basis of the allegations of the

original petition . . . , as well as the supporting documentary evidence and/or

affidavits, which should be attached if available, whether a prima facie case entitling

the petitioner to relief if the allegations are proven has been stated. If so, the court

issues an order directing the respondent to show cause why the relief sought should

not be granted based on those allegations. When an order to show cause does issue, it

is limited to the claims raised in the petition and the factual bases for those claims

alleged in the petition. It directs the respondent to address only those issues. While

the traverse may allege additional facts in support of the claim on which an order to

show cause has issued, attempts to introduce additional claims or wholly different

factual bases for those claims in a traverse do not expand the scope of the proceeding

which is limited to the claims which the court initially determined stated a prima facie

case for relief.‖ (Italics added; see People v. Duvall, supra, 9 Cal.4th at p. 478

[quoting italicized passage with approval]; Board of Prison Terms v. Superior Court

(2005) 130 Cal.App.4th 1212, 1235 [same].)

For similar reasons, belatedly raising new claims or theories for the first time

in the informal reply brief (see Cal. Rules of Court, rule 8.385(b)(3)) is also improper.

―If the imprisonment is alleged to be illegal, the petition must also state in what the

alleged illegality consists.‖ (Pen. Code, § 1474, italics added.) Although Clark spoke

in terms of evaluating the petition along with ―the amended or supplemental petition,

if any,‖ (In re Clark, supra, 5 Cal.4th at p. 781, fn. 16), Clark also said that we will

not ―routinely delay action on a filed petition to permit amendment and

supplementation‖ (id. at p. 781). We have thereafter followed a policy to deny

permission to file supplemental or amended petitions in capital cases and to require

that new claims be raised in a separate petition. Supplements to shell petitions are

excepted from this rule. (In re Morgan, supra, 50 Cal.4th at pp. 940-941.)

The rule that a claim for relief must be supported by factual allegations in the

petition itself, and not in the traverse, logically applies to a petitioner‘s contention that

a particular procedural bar is inapplicable. Just as a habeas corpus petition is

defective for failing to allege the petitioner‘s custodial status (see People v. Villa,

supra, 45 Cal.4th at p. 1069), or for failing to allege facts showing why allegedly new

evidence ― ‗could not have been discovered with reasonable diligence prior to

judgment‘ ‖ (In re Hardy (2007) 41 Cal.4th 977, 1016, quoting Pen. Code, § 1473.6,

subd. (b)), the petition, not the informal reply or traverse, must include specific

allegations indicating why a seemingly applicable procedural bar does not apply, or

why the case falls within an exception to the procedural bar. ―[T]he petitioner filing a

24

B. Application to This Case

1. Timeliness

a. Introduction

A criminal defendant mounting a collateral attack on a final judgment of

conviction must do so in a timely manner. ―It has long been required that a petitioner

explain and justify any significant delay in seeking habeas corpus relief.‖ (In re

Clark, supra, 5 Cal.4th at p. 765.) ―By requiring that such challenges be made

reasonably promptly, we vindicate society‘s interest in the finality of its criminal

judgments, as well as the public‘s interest ‗in the orderly and reasonably prompt

implementation of its laws.‘ [Citation.] Such timeliness rules serve other salutary

interests as well. Requiring a prisoner to file his or her challenge promptly helps

ensure that possibly vital evidence will not be lost through the passage of time or the

fading of memories. In addition, we cannot overestimate the value of the

psychological repose that may come for the victim, or the surviving family and

friends of the victim, generated by the knowledge the ordeal is finally over.

Accordingly, we enforce time limits on the filing of petitions for writs of habeas

corpus in noncapital cases [citation], as well as in cases in which the death penalty has

been imposed.‖ (In re Sanders, supra, 21 Cal.4th at p. 703.)

The filing of a habeas corpus petition containing untimely—and thus

noncognizable—claims wastes scarce judicial resources. The sheer number of such

petition for writ of habeas corpus . . . bears the initial burden of alleging the facts on

which he relies to explain and justify delay and/or a successive petition.‖ (In re

Clark, supra, 5 Cal.4th at p. 798, fn. 35.) Indeed, in most cases there is no return or

traverse, and we may deny relief without requesting an informal response and reply.

Although in this case the traverse has given petitioner an opportunity to allege

additional facts in support of his claims, new theories addressing the applicability of

various procedural bars are, in the usual case, improper when raised for the first time

in the traverse. Moreover, by waiting until his traverse to raise new justifications for

raising claims barred by various procedural rules, petitioner has deprived the People

of any opportunity to respond to or rebut the argument.

25

improper claims in the petition before us, and in other similar petitions, imposes a

tremendous burden on the judicial system that obstructs the orderly administration of

justice. As we explain, the filing of untimely claims without any serious attempt at

justification is an example of abusive writ practice.

b. The applicable law

Our rules establish a three-level analysis for assessing whether claims in a

petition for a writ of habeas corpus have been timely filed. First, a claim must be

presented without substantial delay. Second, if a petitioner raises a claim after a

substantial delay, we will nevertheless consider it on its merits if the petitioner can

demonstrate good cause for the delay. Third, we will consider the merits of a claim

presented after a substantial delay without good cause if it falls under one of four

narrow exceptions: ―(i) that error of constitutional magnitude led to a trial that was so

fundamentally unfair that absent the error no reasonable judge or jury would have

convicted the petitioner; (ii) that the petitioner is actually innocent of the crime or

crimes of which he or she was convicted; (iii) that the death penalty was imposed by a

sentencing authority that had such a grossly misleading profile of the petitioner before

it that, absent the trial error or omission, no reasonable judge or jury would have

imposed a sentence of death; or (iv) that the petitioner was convicted or sentenced

under an invalid statute.‖ (In re Robbins, supra, 18 Cal.4th at pp. 780-781.) The

petitioner bears the burden to plead and then prove all of the relevant allegations.

(Ibid.)

The United States Supreme Court recently, and accurately, described the law

applicable to habeas corpus petitions in California: ―While most States set

determinate time limits for collateral relief applications, in California, neither statute

nor rule of court does so. Instead, California courts ‗appl[y] a general

―reasonableness‖ standard‘ to judge whether a habeas petition is timely filed. Carey

26

v. Saffold, 536 U.S. 214, 222, . . . (2002). The basic instruction provided by the

California Supreme Court is simply that ‗a [habeas] petition should be filed as

promptly as the circumstances allow . . . .‘ ‖ (Walker v. Martin, supra, 562 U.S. at

p. ___ [131 S.Ct. at p. 1125].) ―A prisoner must seek habeas relief without

‗substantial delay,‘ [citations], as ‗measured from the time the petitioner or counsel

knew, or reasonably should have known, of the information offered in support of the

claim and the legal basis for the claim,‘ [citation].‖ (Ibid.; see also In re Robbins,

supra, 18 Cal.4th at p. 780 [―Substantial delay is measured from the time the

petitioner or his or her counsel knew, or reasonably should have known, of the

information offered in support of the claim and the legal basis for the claim.‖].)

c. Absence of substantial delay

The first step in assessing whether a claim has been filed without substantial

delay is determining whether the claim is presumptively timely. For capital cases, our

rules establish a safe harbor for litigants to show their petition has been filed without

substantial delay. ―A petition for a writ of habeas corpus [in a capital case] will be

presumed to be filed without substantial delay if it is filed within 180 days after the

final due date for the filing of appellant‘s reply brief on the direct appeal or within 36

months after appointment of habeas corpus counsel, whichever is later.‖ (Supreme

Ct. Policies, policy 3, std. 1-1.1.) Petitioner filed the present petition in 2004, nine

and one-half years after the 1994 due date for the reply brief in the automatic appeal.

He thus cannot qualify under the 180-day rule. Moreover, although present counsel

was appointed in September 2002 and the petition was filed in May 2004, petitioner is

not entitled to rely on the 36-month safe harbor, as the rule (Supreme Ct. Policies,

policy 3, std. 1-1.1), read in context, applies only to a petitioner‘s first state habeas

27

corpus petition.16 But even were we to assume the rule is ambiguous in this regard, it

has been the rule since 1993, when we decided In re Clark, supra, 5 Cal.4th 750, that

changes in counsel do not reset the clock for timeliness purposes. (Id. at p. 779.) We

conclude the petition before us today obviously is not presumptively timely under our

rules.

Aside from his ineligibility for the safe harbor provision in policy 3, standard

1-1.1 of the Supreme Court Policies, petitioner argues his claims were filed without

substantial delay. ―Substantial delay is measured from the time the petitioner or his or

her counsel knew, or reasonably should have known, of the information offered in

support of the claim and the legal basis for the claim. A petitioner must allege, with

specificity, facts showing when information offered in support of the claim was

obtained, and that the information neither was known, nor reasonably should have

been known, at any earlier time. It is not sufficient simply to allege in general terms

that the claim recently was discovered, to assert that second or successive

postconviction counsel could not reasonably have discovered the information earlier,

or to produce a declaration from present or former counsel to that general effect. A

petitioner bears the burden of establishing, through his or her specific allegations,

which may be supported by any relevant exhibits, the absence of substantial delay.‖

(In re Robbins, supra, 18 Cal.4th at p. 780.) Specific allegations should be succinct

and to the point; there is no need for them to be lengthy.

As discussed in more detail, post, the majority of petitioner‘s claims face

procedural bars for which petitioner offers patently meritless explanations. (Our

16 Occasionally this court must, for reasons of ill health, conflict, or other factors,

vacate the appointment of habeas corpus counsel and appoint a new attorney to

investigate, prepare, and file an inmate‘s first habeas corpus petition. In such cases,

our order of appointment will specifically note how long new counsel will have to file

the petition and still be entitled to a finding of presumptive timeliness. The

appointment of counsel in the present case included no such notation.

28

discussion speaks of the ―inadequacy‖ of the allegations, meaning that what petitioner

has provided frequently is so patently lacking in weight and merit under our standards

that they offer no plausible basis for granting relief.) The claims are based either on

the appellate record (and thus the factual basis of the claim was known at the time of

his retrial in 1987) or on information known at the time he filed his first habeas corpus

petition in 1995.17 The petition alleges that present counsel did not learn the bases of

these claims until they were appointed to represent petitioner by the federal district

court in 2001, and that the claims were ―presented as quickly as possible after the

legal and factual bases for them became known‖ to counsel. He also alleges that in

light of the multiple changes in attorneys over the years,18 he has ―acted as diligently

17 All of petitioner‘s claims are untimely, with these 16 exceptions:

Claim Nos. 123, 128, 129, 130, 133, 134, 135, 136, 137, 138 and 139

(challenges to the constitutionality of the California death penalty law will not be

denied as untimely (In re Clark, supra, 5 Cal.4th at p. 765, fn. 4));

Claim Nos. 125 and 127 (challenges to the efficacy of this court‘s review will

not be denied as untimely because they could not have been raised until after this

court has ruled on the appeal and first habeas corpus petition);

Claim No. 131 (challenge to lethal injection is premature and thus not untimely

(People v. Boyer (2006) 38 Cal.4th 412, 485));

Claim No. 132 (claim that prolonged preexecution confinement is cruel and

unusual is premature and thus not untimely);

Claim No. 143 (claim that cumulative effect of all errors requires relief is not

untimely because it incorporates some timely claims).

18 For his first habeas corpus petition in state court, which we denied in 1995,

petitioner was represented by Attorneys Thomas Nolan and Andrew Parnes. In 1996,

the federal district court appointed Attorney Stanley Greenberg to represent petitioner.

A year later, the same court appointed Nicholas Arguimbau as cocounsel. Later in

1997, the federal court granted Greenberg leave to withdraw and appointed Attorney

Michael Abzug to replace him. Abzug and Arguimbau filed petitioner‘s federal

petition in 1998. Abzug withdrew in 2001, and the federal court appointed current

counsel Peter Giannini to replace him. Later in 2001, Arguimbau withdrew and the

court appointed Attorneys James Thomson and Saor Stetler as cocounsel. In 2002,

this court allowed Attorney Nolan to withdraw and we appointed Giannini, Thomson,

and Stetler to represent petitioner in this court. In 2011, we vacated the appointment

29

as possible,‖ and that the petition was filed ―as soon as he gathered sufficient legal

and factual bases for a prima facie case for each of the potentially meritorious

claims.‖ These stock justifications fail to undermine our conclusion the petition is

substantially, and fatally, untimely. We reiterate that a petitioner bears the burden of

demonstrating timeliness (In re Robbins, supra, 18 Cal.4th at pp. 780, 787), and ―[t]he

burden . . . is not met by an assertion of counsel that he or she did not represent the

petitioner earlier‖ (In re Clark, supra, 5 Cal.4th at p. 765). ―Were the rule otherwise,

the potential for abuse of the writ would be magnified as counsel withdraw or are

substituted and each successor attorney claims that a petition was filed as soon as the

successor attorney became aware of the new basis for seeking relief.‖ (Id. at pp. 765-

766, fn. 6.)

We therefore conclude that with the exception of those claims listed in footnote

17, ante, the claims contained in the petition were all filed after a substantial delay.

d. Good cause for the delay

Petitioner alleges that if we find the claims in the petition are substantially

delayed, as we now do, he has shown good cause for the delay because the facts were

unknown and present counsel only recently discovered the bases of the claims. These

attempted justifications largely echo the arguments previously made and addressed

above and are patently meritless for the same reasons; that is, it appears the facts were

known either at the time of trial or the first habeas corpus petition, and a change in

attorneys does not reset the clock for habeas corpus purposes. Petitioner‘s further

complaint that he is unschooled in the law is irrelevant, as he has been represented by

legal counsel throughout the postconviction period.

of Stetler as associate counsel. Petitioner is currently represented by Attorneys James

Thomson and Peter Giannini.

30

Petitioner also avers that ineffective assistance of prior counsel demonstrates

good cause for the delay. He claims he was ―unable‖ to raise these claims earlier

because Attorney Thomas Nolan, who represented him on appeal and in his first

habeas corpus petition, was ineffective for failing to raise these issues either on appeal

or in that first petition.

―[A] petitioner who is represented by counsel when a petition for writ of

habeas corpus is filed has a right to assume that counsel is competent and is

presenting all potentially meritorious claims.‖ (In re Clark, supra, 5 Cal.4th at p. 780,

italics omitted.) Thus, ―[i]n limited circumstances, consideration may be given to a

claim that prior habeas corpus counsel did not competently represent a petitioner‖ (id.

at p. 779) which, if established, ―may be offered in explanation and justification of the

need to file another petition‖ (id. at p. 780).

The pleading required for a claim that prior habeas corpus counsel was

ineffective in omitting a particular issue tracks what a habeas corpus petitioner must

plead and prove in order to obtain relief on a claim of ineffective assistance of counsel

generally. The basic standard of performance is whether the conduct of counsel—

including counsel in capital cases—―fell below an objective standard of

reasonableness,‖ ― under prevailing professional norms.‖ (Strickland v. Washington

(1984) 466 U.S. 668, 688; see In re Hardy, supra, 41 Cal.4th at p. 1018.) Thus, ―[t]he

petitioner must . . . allege with specificity the facts underlying the claim that the

inadequate presentation of an issue or omission of any issue reflects incompetence of

counsel, i.e., that the issue is one which would have entitled the petitioner to relief had

it been raised and adequately presented in the initial petition, and that counsel‘s

failure to do so reflects a standard of representation falling below that to be expected

from an attorney engaged in the representation of criminal defendants.‖ (In re Clark,

supra, 5 Cal.4th at p. 780.) The mere fact that prior counsel omitted a particular

nonfrivolous claim, however, is not in itself sufficient to establish prior counsel was

31

incompetent. Habeas corpus counsel, like appellate counsel, ―performs properly and

competently when he or she exercises discretion and presents only the strongest claims

instead of every conceivable claim.‖ (In re Robbins, supra, 18 Cal.4th at p. 810.)

Many of the claims now before us were actually raised on appeal or in

petitioner‘s first habeas corpus petition; as to these claims, the allegations of

ineffectiveness of prior counsel are belied by the record. For most of the remaining

claims (what petitioner terms the ―non-repetitive‖ claims), the facts in support were

known, or should have been known, earlier, rendering it possible prior counsel knew

of the facts and unreasonably failed to assert claims based on them.

Indeed, petitioner alleges prior counsel Nolan had no tactical reason for failing

to raise these claims, a fact Nolan asserts—but does not explain—in his declaration

accompanying the traverse. But the ―mere omission of a claim ‗developed‘ by new

counsel does not raise a presumption that prior habeas corpus counsel was

incompetent, or warrant consideration of the merits of a successive petition. Nor will

the court consider on the merits successive petitions attacking the competence of . . .

prior habeas corpus counsel which reflect nothing more than the ability of present

counsel with the benefit of hindsight, additional time and investigative services, and

newly retained experts, to demonstrate that a different or better defense could have

been mounted had . . . prior habeas corpus counsel had similar advantages.‖ (In re

Clark, supra, 5 Cal.4th at p. 780; accord, Harrington v. Richter, supra, 562 U.S. at

p. ___ [131 S.Ct. at p. 788].) Therefore, Nolan‘s asserted lack of a tactical reason for

omitting certain claims does not necessarily establish that he was ineffective for

failing to raise them on appeal or in the first habeas corpus petition. Unless counsel‘s

failure to raise the issue earlier was objectively unreasonable and the omission caused

the petitioner actual prejudice, counsel‘s omission of the claim does not justify the

presentation of the claim in a subsequent petition. Petitioner contends it was

objectively unreasonable that Nolan did not bring certain omitted claims because

32

those claims were ―potentially meritorious.‖ (Clark, at p. 780.) But, as discussed

further below, the omission of these claims did not constitute ineffective assistance of

counsel within the meaning of Clark.

The mere fact that present counsel has identified some legal claims not

previously pressed on appeal or in a prior habeas corpus petition does not necessarily

suggest prior counsel was constitutionally ineffective, for we presume such unraised

claims exist in all cases. For example, because the range of permissible mitigating

evidence admissible in the penalty phase of a capital trial is ―virtually unlimited‖

(People v. Dunkle (2005) 36 Cal.4th 861, 916), the mere fact that new counsel has

discovered some background information concerning a defendant‘s family,

educational, scholastic or medical history that was not presented to the jury at trial in

mitigation of penalty is insufficient, standing alone, to demonstrate prior counsel‘s

actions fell below the standard of professional competence. Even if we could

conclude prior counsel knew, or should have known, of such information, counsel‘s

decision regarding which issues to raise and how vigorously to investigate them given

time and funding restraints ― ‗falls within the wide range of reasonable professional

assistance‘ ‖ (People v. Lewis (2001) 25 Cal.4th 610, 674, quoting Strickland v.

Washington, supra, 466 U.S. at p. 689) and is entitled to great deference. In short, the

omission of a claim, whether tactical or inadvertent, does not of itself demonstrate

ineffectiveness unless it was objectively unreasonable, meaning that the omitted claim

was one that any reasonably competent counsel would have brought. Even if the

omission of a claim was objectively unreasonable, a petitioner must further show that

the claim entitles him or her to relief. Absent such a showing supported by specific

facts, repeated and continual filings based on the justification that one‘s prior attorney

was ineffective are, in the end, infinitely reductive and thus untenable.

Petitioner contends the duty to raise all potentially meritorious claims required

prior habeas corpus counsel to raise claims that had been previously rejected in other

33

cases because the law might change in petitioner‘s favor. (See, e.g., Roper v.

Simmons (2005) 543 U.S. 551 [Eighth Amend. prohibits execution of those who were

under 18 years of age when they committed their crime], overruling Stanford v.

Kentucky (1989) 492 U.S. 361; Atkins v. Virginia, supra, 536 U.S. 304 [Eighth

Amend. prohibits execution of the mentally retarded], overruling Penry v. Lynaugh

(1989) 492 U.S. 302; Hitchcock v. Dugger (1987) 481 U.S. 393 [Florida jury

instruction limiting jury to mitigating circumstances specifically enumerated by

statute is unconstitutional], reversing Cooper v. State (Fla. 1976) 336 So.2d 1133.)

This argument ignores the rule that, should the law change while a defendant is

still pressing his or her appeal or seeking postconviction relief, the defendant is

entitled to file a new petition to take advantage of a change in the law. For example,

we held in In re Harris, supra, 5 Cal.4th 813, that a habeas corpus petitioner may

raise ―an issue previously rejected on direct appeal when there has been a change in

the law affecting the petitioner.‖ (Id. at p. 841, and cases cited.) A change in the law

will also excuse a successive or repetitive habeas corpus petition. (In re Martinez,

supra, 46 Cal.4th at p. 950 & fn. 1.) The possibility that an inmate could be executed

before an appellate court at some future date changes the law in his favor is not a

reason to repeatedly present a claim to the same court that has previously rejected it,

absent a legitimate and asserted ground for revisiting the issue, rooted in the doctrine

of stare decisis. (See, e.g., People v. Drew (1978) 22 Cal.3d 333, 347-348 [explaining

the court‘s abandonment of the M‘Naghten test for insanity].) Thus, prior counsel‘s

failure to raise claims that we have previously rejected in other cases does not justify

the inclusion of such claims in a successive petition.

Petitioner argues both the California Rules of Professional Conduct and the

American Bar Association Model Rules of Professional Conduct (ABA Model Rules)

support the notion that counsel is ethically obligated to raise defaulted claims. He is

mistaken. The Rules of Professional Conduct merely require counsel to act

34

competently, that is, with ―diligence,‖ ―learning and skill,‖ and ―mental, emotional,

and physical ability reasonably necessary for the performance of [legal] service.‖

(Rules Prof. Conduct, rule 3-110(B).) As noted, ethical and diligent counsel may

winnow the available claims so as to maximize the likelihood of obtaining relief.

(See Jones v. Barnes (1983) 463 U.S. 745, 751-754.)

Considering the ABA Model Rules requires a different analysis. California has

not formally adopted those rules as an ethical standard (General Dynamics Corp. v.

Superior Court (1994) 7 Cal.4th 1164, 1190, fn. 6), but rule 1-100(A) of the Rules of

Professional Conduct, applicable to California attorneys, provides that ―[e]thics

opinions and rules and standards promulgated by . . . bar associations may also be

considered‖ when judging the actions or omissions of an attorney. ―Thus, the ABA

Model Rules of Professional Conduct may be considered as a collateral source,

particularly in areas where there is no direct authority in California and there is no

conflict with the public policy of California.‖ (State Comp. Ins. Fund v. WPS, Inc.

(1999) 70 Cal.App.4th 644, 656.) ―[C]ourts and attorneys find the [ABA Model

Rules] helpful and persuasive in situations where the California rules are unclear or

inadequate.‖ (Witkin, 1 Cal. Procedure (5th ed. 2008) Attorneys, § 407(3), p. 521.)

Our state‘s ethical rules concerning counsel in capital cases are neither unclear

nor inadequate, rendering resort to the ABA Model Rules unnecessary. Although

counsel for petitioner and amici curiae point especially to the American Bar

Association‘s Guidelines for the Appointment and Performance of Defense Counsel in

Death Penalty Cases (Feb. 2003 rev.) (ABA Guidelines) as the source of their ethical

obligation to raise defaulted claims,19 those standards are not congruent with

constitutional standards for effective legal representation. For example, guideline

19 <http://www.americanbar.org/content/dam/aba/migrated/legalservices/

downloads/sclaid/deathpenaltyguidelines2003.authcheckdam.pdf> [as of Aug. 30,

2012].

35

10.15.1(C) of the ABA Guidelines provides: ―Post-conviction counsel should seek to

litigate all issues, whether or not previously presented, that are arguably meritorious

under the standards applicable to high quality capital defense representation,

including challenges to any overly restrictive procedural rules. Counsel should make

every professionally appropriate effort to present issues in a manner that will preserve

them for subsequent review.‖ (ABA Guidelines, p. 123, italics added.) Commentary

to this guideline states: ―As with every other stage of capital proceedings, collateral

counsel has a duty in accordance with Guideline 10.8 to raise and preserve all

arguably meritorious issues. These include not only challenges to the conviction and

sentence, but also issues which may arise subsequently. Collateral counsel should

assume that any meritorious issue not contained in the initial application will be

waived or procedurally defaulted in subsequent litigation, or barred by strict rules

governing subsequent applications.‖ (Id. at pp. 128-129, italics added, fns. omitted.)

Along these same lines, commentary accompanying guideline 10.8 states:

― ‗One of the most fundamental duties of an attorney defending a capital case at trial

is the preservation of any and all conceivable errors for each stage of appellate and

post-conviction review. Failure to preserve an issue may result in the client being

executed even though reversible error occurred at trial.‘ ‖ (ABA Guidelines, p. 87,

italics added.)

The United States Supreme Court recently addressed the ABA Guidelines in

Bobby v. Van Hook (2009) 558 U.S. ___ [130 S.Ct. 13] (per curiam). In that case, the

Sixth Circuit Court of Appeals had reversed a death penalty judgment after finding

the defendant‘s attorneys constitutionally ineffective, citing the ABA Guidelines. The

high court recognized that ―[r]estatements of professional standards . . . can be useful

as ‗guides‘ to what reasonableness entails, but only to the extent they describe the

professional norms prevailing when the representation took place.‖ (Van Hook, at

p. ___ [130 S.Ct. at p. 16].) But the court criticized the Sixth Circuit‘s treatment of

36

the ABA Guidelines ―not merely as evidence of what reasonably diligent attorneys

would do, but as inexorable commands with which all capital defense counsel ‗ ―must

fully comply.‖ ‘ ‖ (Van Hook, at p. ___ [130 S.Ct. at p. 17].) ― ‗[W]hile States are

free to impose whatever specific rules they see fit to ensure that criminal defendants

are well represented, we have held that the Federal Constitution imposes one general

requirement: that counsel make objectively reasonable choices.‘ ‖ (Ibid.)

We agree with the high court‘s characterization of the ABA Guidelines.

California, consistent with federal law, requires that counsel—including in capital

cases—make objectively reasonable choices according to prevailing professional

norms. (In re Hardy, supra, 41 Cal.4th at p. 1018, citing Strickland v. Washington,

supra, 466 U.S. at pp. 687-688.) To the extent petitioner relies on the ABA

Guidelines‘ directives that ―[p]ost-conviction counsel should seek to litigate all

issues, whether or not previously presented‖ (ABA Guidelines, guideline 10.15.1(C),

italics added), and that counsel is required to preserve ― ‗any and all conceivable

errors‘ ‖ (ABA Guidelines, p. 87, italics added), to justify his position that

postconviction counsel in capital cases is ethically bound to raise defaulted claims in

an exhaustion petition, we reject the point because the ABA Guidelines require much

more of counsel than is required by state and federal law governing ineffective

assistance of counsel.

With respect to habeas corpus counsel‘s duty to investigate legal claims in

capital cases, the ABA Guidelines also are inconsistent with this court‘s standards.

Thus, policy 3, standard 1-1 of the Supreme Court Policies provides: ―The duty to

investigate is limited to investigating potentially meritorious grounds for relief that

come to [habeas corpus] counsel‘s attention in the course of reviewing appellate

counsel‘s list of potentially meritorious habeas corpus issues, the transcript notes

prepared by appellate counsel, the appellate record, trial counsel‘s existing case files,

and the appellate briefs, and in the course of making reasonable efforts to discuss the

37

case with the defendant, trial counsel and appellate counsel. The duty to investigate

does not impose on counsel an obligation to conduct, nor does it authorize the

expenditure of public funds for, an unfocused investigation having as its object

uncovering all possible factual bases for a collateral attack on the judgment. Instead,

counsel has a duty to investigate potential habeas corpus claims only if counsel has

become aware of information that might reasonably lead to actual facts supporting a

potentially meritorious claim.‖ (Italics added.)

By contrast, the ABA Guidelines seem to require habeas corpus counsel to

reinvestigate the entire case from the ground up, irrespective of the strength of the

evidence (ABA Guidelines, guideline 10.7(A)(1) [―The investigation regarding guilt

should be conducted regardless of any admission or statement by the client

concerning the facts of the alleged crime, or overwhelming evidence of guilt . . .‖]) or

the client‘s wishes (id., guideline 10.7(A)(2) [―The investigation regarding penalty

should be conducted regardless of any statement by the client that evidence bearing

upon penalty is not to be collected or presented.‖]). For state habeas corpus

proceedings, commentary to ABA guideline 1.1 notes that habeas corpus counsel

―must be prepared to thoroughly reinvestigate the entire case . . . .‖ (Id., p. 12, italics

added.) The ABA Guidelines thus recommend a higher level of rigor than does this

court or the United States Constitution.

Petitioner fails to demonstrate that counsel was deficient in failing to raise any

of the nonrepetitive claims in the petition before us (that is, claims prior counsel did

not raise) or that the omission caused him prejudice. Petitioner attempts to justify his

presentation of untimely claims by asserting that Nolan, who represented petitioner on

appeal and in his 1995 habeas corpus proceeding, was unreasonably ignorant of

certain undescribed triggering facts that underlie some claims. Petitioner‘s allegations

of Nolan‘s supposed deficient performance are for the most part vague, conclusory,

and bereft of persuasive supporting factual allegations, relying largely on Nolan‘s

38

blanket, generic assertion of his own alleged failings. Nor does petitioner in his

traverse add anything of note regarding why he believes Nolan‘s performance fell

short.

To the extent petitioner points to particular pieces of allegedly ―new‖ evidence

to suggest Nolan was constitutionally ineffective, we have examined them and found

them wanting. For example, claim No. 20 in the present petition alleges the

prosecution failed to disclose evidence in its possession that could have been used to

impeach fellow inmates who testified against petitioner. Nolan raised this claim in

the first habeas corpus petition in 1995. To justify the renewed presentation of the

same claim, petitioner now cites exhibit C, a 1990 Los Angeles County grand jury

report on the subject of jailhouse informants. The report comprising exhibit C was

available five years before petitioner filed his first petition, and petitioner suggests

Nolan was ineffective for failing to rely on it to show the prosecution‘s alleged

dereliction of its duty to disclose potentially exculpatory evidence. But Nolan‘s

declaration omits any mention of this piece of evidence, so we have no way of

knowing whether he was or was not aware of it. In any event, Nolan‘s failure to rely

on the report was not objectively unreasonable.

Nor do the allegations show prejudice. Anthony Cornejo was the principal

inmate who provided evidence against petitioner, and on cross-examination before the

jury, ―he was thoroughly impeached as a notorious jailhouse informant.‖ (Memro II,

supra, 11 Cal.4th at p. 827.) Exhibit C is thus cumulative to the evidence presented at

trial, and petitioner does not show he would have obtained a more favorable result had

Nolan discovered and relied on exhibit C in his 1995 habeas corpus petition.

Petitioner thus fails to demonstrate that ineffective assistance of counsel justifies the

untimely presentation of claim No. 20.

As another example, petitioner argues he has presented new evidence

supporting claim No. 68, i.e., that the prosecution‘s evidence he premeditated and

39

deliberated the murders of Fowler and Chavez was insufficient.20 The purportedly

―new‖ evidence is a psychiatrist‘s 1998 opinion that, due to alleged mental problems,

petitioner could not have premeditated and deliberated the crimes 22 years earlier in

1976. Skeptical as one might be of an opinion regarding someone‘s mental state more

than two decades earlier, the petition in any event does not specifically allege this

information was available at the time petitioner filed his first habeas corpus petition in

1995. Nor does the petition explain why, if the information was available in 1995,

Attorney Nolan‘s failure to discover and rely on it ―fell below an objective standard of

reasonableness‖ under ―prevailing professional norms.‖ (Strickland v. Washington,

supra, 466 U.S. at p. 688; see In re Hardy, supra, 41 Cal.4th at p. 1018.) Nolan was

clearly aware of the premeditation issue, having challenged the sufficiency of the

evidence of premeditation on appeal. (Memro II, supra, 11 Cal.4th at pp. 862-864.)

And trial counsel in closing argument at the penalty phase ―emphasized defendant‘s

mental problems.‖ (Id. at p. 817.) The 1998 psychiatrist‘s opinion is thus revealed as

cumulative to evidence presented at trial, and ―reflect[s] nothing more than the ability

of present counsel with the benefit of hindsight, additional time and investigative

services, and newly retained experts, to demonstrate that a different or better defense

could have been mounted had trial counsel or prior habeas corpus counsel had similar

advantages.‖ (In re Clark, supra, 5 Cal.4th at p. 780, italics added.)

Petitioner‘s further attempt at demonstrating good cause for the delay requires

more discussion. He alleges he has shown good cause for the delay because in

preparing his first habeas corpus petition, he was denied adequate funds to investigate

his case. Prefatory to the entire petition and apparently intended to apply to all 143

claims raised therein, petitioner alleges he ―needs and is entitled to adequate funding

20 As we discuss, post, in part II.B.6., this issue is not cognizable on habeas

corpus in any event.

40

[and] discovery,‖ and that ―[f]urther investigation must be conducted.‖ We observed

in In re Gallego that ―a petitioner who earlier presented a [habeas corpus] petition

containing a claim supported by certain information, and who later presents a

subsequent petition raising the same or an analogous claim supported by additional

information‖ may be excused from our timeliness rules if he pleads specific facts

showing he ―reasonably failed to discover the additional information—as a result of a

denial of a request for funds to investigate the claim . . . .‖ (In re Gallego, supra, 18

Cal.4th at p. 835, fn. 8.)

Petitioner‘s allegations regarding the denial of investigative funds are wholly

inadequate to satisfy his pleading burden, as he fails to state he ―timely file[d] a

request for funding of a specific proposed investigation, fully disclosing all asserted

triggering information in support of the proposed investigation.‖ (In re Gallego,

supra, 18 Cal.4th at p. 828, italics added.) Instead of addressing the untimeliness of

any particular claim, petitioner presents a scattershot defense he apparently intends to

apply to all claims. This global approach is insufficient to come within the Gallego

rule. For example, for each claim, petitioner fails to allege when he learned the

pertinent triggering information, when he sought investigative funds, and when this

court denied them. Instead, petitioner‘s briefing discloses but a generalized lament

that he desired more investigative funds, a complaint untethered to any specific set of

claims or issues. These types of general allegations do not demonstrate good cause

for delay under Gallego. We conclude the denial of investigatory funding in

connection with petitioner‘s first petition does not provide good cause for the

untimely presentation of claims.

Because Gallego was decided in 1998, we take this opportunity to announce a

modification of the Gallego rule permitting denial of investigative funds to justify

delay in the presentation of a claim. At the time counsel were preparing the habeas

corpus petition at issue in Gallego, habeas corpus counsel in capital cases were

41

authorized to spend only $3,000 in investigative funds without prior authorization.

(Supreme Ct. Policies, former policy 3, std. 2-2.3.) Under that scheme, counsel could

file requests for additional investigative funds with no set ceiling. Now, under the

present scheme, habeas corpus counsel in capital cases may (under most

circumstances) spend up to $50,000 to investigate the case without preauthorization

from this court (id., policy 3, std. 2-2.1), but will not be reimbursed for more than that

amount unless this court issues an order to show cause. (See Gov. Code, § 68666,

subd. (b) [―The Supreme Court may set a guideline limitation on investigative and

other expenses allowable for counsel to adequately investigate and present collateral

claims of up to fifty thousand dollars ($50,000) without an order to show cause.‖].)

Although this amount of investigative funds may not be sufficient for counsel to

comply with the ABA Guidelines‘ directive to reinvestigate the entire case from the

ground up (nor is it intended to be sufficient in that regard), it should suffice for

counsel to investigate potentially meritorious issues outside the record and thereby

comply with the duty to investigate set forth in policy 3 of the Supreme Court

Policies. Attorneys appointed in capital cases are expected to make tactical decisions

on how to most prudently use this generous allocation of public funds and to prioritize

which issues are most likely to bear fruit, and this court will not second-guess

counsel‘s reasonable tactical decisions in this regard. Therefore, in light of post-

Gallego rule changes, a claim that counsel was denied additional funding after

exhausting his or her $50,000 in allotted investigative funds will be carefully

scrutinized by this court, and a formulaic allegation of insufficient funds will not

justify untimely presentation of a claim on habeas corpus.

e. Exceptions

Petitioner contends that should we find he presented the claims in the petition

after a substantial delay and without good cause, as we do, we should also find that

42

the claims fall within several exceptions set forth in our previous cases. First

announced in In re Clark, supra, 5 Cal.4th at pages 797-798, and later endorsed in In

re Robbins, supra, 18 Cal.4th at pages 780-781, we have explained that, at least in

capital cases, ―[t]he magnitude and gravity of the penalty of death persuades us that

the important values which justify limits on untimely . . . petitions are outweighed by

the need to leave open this avenue of relief. Thus, for purposes of the exception to the

procedural bar against successive or untimely petitions, a ‗fundamental miscarriage of

justice‘ will have occurred in any proceeding in which it can be demonstrated:

(1) that error of constitutional magnitude led to a trial that was so fundamentally

unfair that absent the error no reasonable judge or jury would have convicted the

petitioner; (2) that the petitioner is actually innocent of the crime or crimes of which

the petitioner was convicted; (3) that the death penalty was imposed by a sentencing

authority which had such a grossly misleading profile of the petitioner before it that

absent the trial error or omission no reasonable judge or jury would have imposed a

sentence of death; [or] (4) that the petitioner was convicted or sentenced under an

invalid statute. These claims will be considered on their merits even though presented

for the first time in a successive petition . . . .‖ (Clark, at pp. 797-798, fns. omitted.)

The words used to articulate the Clark exceptions to our timeliness rules—

―fundamentally unfair,‖ ―actually innocent,‖ ―grossly misleading profile,‖ ―invalid

statute‖ (ibid., italics added)—indicate how high the bar is to a litigant‘s successfully

invoking these narrow exceptions.

Seeking to come within the exceptions, petitioner alleges his claims

demonstrate his retrial was a fundamental miscarriage of justice and his jury received

a grossly misleading profile of him at the penalty phase. He also alleges that his

petition ―raises substantial claims of constitutional magnitude‖ and ―involve[s]

constitutional questions of extraordinary importance.‖ Such general allegations are

wholly inadequate: With the possible exception of claim Nos. 107 to 109, which

43

concern mitigating evidence not presented to the penalty jury,21 the petition alleges no

facts suggesting why we should conclude his claims fall within the Clark exceptions

and fails to connect the many other claims raised to this allegedly new evidence. In

short, the petition fails to demonstrate that these claims fall within one of the narrow

Clark exceptions.

The same analysis applies to the informal reply which, like the petition, merely

states in conclusory terms that errors of ―constitutional magnitude‖ occurred, that the

jury was presented with a grossly misleading profile of petitioner at the penalty phase,

and that he was sentenced under an invalid statute. None of these allegations is

sufficiently specific, or states facts sufficient, to come within one of the four narrow

exceptions to our timeliness rules.

Prompted by our order to show cause, the traverse contains more detail.

Petitioner contends in his traverse that he has raised ―eighteen (18) non-repetitive

appellate claims premised on fundamental constitutional error that strikes at the heart

21 In support of claim Nos. 107, 108 and 109 (alleging trial counsel was

ineffective for failing to investigate and present evidence both of petitioner‘s mental

problems and his dissolute and violent family background), petitioner submits the

declarations of nine family members who were available to testify at trial about the

physical and mental abuse petitioner suffered as a child at the hands of a violent,

alcoholic father, petitioner‘s emotional outbursts, and his extended family‘s history of

alcoholism and financial difficulties. He also presents the declaration of Gretchen

White, Ph.D., who prepared a posttrial social history of petitioner based on two

interviews with him in 1998 (11 years after his retrial) and family members‘

declarations. White notes that in a prison psychiatrist‘s 1980 evaluation following

petitioner‘s first conviction in 1978 (subsequently reversed in Memro I, supra, 38

Cal.3d 658), the expert viewed petitioner‘s attraction to young males as a

pathologically motivated wish to experience love and that the crimes occurred

because petitioner was overwhelmed by rage. Finally, petitioner provides the

declaration of George Woods, M.D., who interviewed him four times, also in 1998.

Based on those interviews and his review of petitioner‘s social history and medical

and psychiatric records, Woods diagnosed petitioner with borderline personality

disorder and posttraumatic stress disorder. In Dr. Woods‘s opinion, ―competent

professionals would have drawn the same conclusions at the time of trial.‖

44

of the trial process,‖ identifying those claims simply as ―See Claims 11, 12, 13, 42,

43, 45, 72, 74, 75, 76, 77, 78, 79, 83, 84, 116, 117, and 124.‖ This list matches

generally those claims that could have been, but were not, raised on direct appeal.

(See discussion of claims barred by the Dixon rule post.) Petitioner thus contends that

those appellate claims he could have, but did not, raise on appeal, all have a

constitutional basis and therefore all fall within Clark‘s exception to our timeliness

rules for claims raising ―error[s] of constitutional magnitude [that] led to a trial that

was so fundamentally unfair that absent the error no reasonable judge or jury would

have convicted the petitioner.‖ (In re Clark, supra, 5 Cal.4th at p. 797.) He is

mistaken. As noted, the exception is a narrow one, and merely asserting, without

more, that a claim has a plausible constitutional basis does not satisfy the pleading

burden to allege that an otherwise untimely claim addresses a fundamental

constitutional error such that no reasonable judge or jury would have convicted

petitioner absent the error. We explained in Clark that to qualify under this narrow

exception, the claim ―must be such that it would ‗undermine the entire prosecution

case and point unerringly to innocence or reduced culpability.‘ ‖ (Id. at p. 797, fn.

32.) Petitioner‘s bare allegations, unadorned as they are by factual allegations and

argument, do not demonstrate that any of these claims fall within this narrow

exception.

We reach the same conclusion for another 42 claims petitioner lists, but does

not discuss, save for asserting without explanation that all 42 claims ―include

constitutional errors that are fundamental in nature.‖ But even were we to accept

petitioner‘s unsupported claim that 60 (18 plus 42) of his claims, although untimely,

should be considered because they fall within the exception for fundamental

constitutional errors, dozens of claims remain for which no exception applies, and as

to which petitioner does not even attempt to justify an untimely presentation. To raise

45

so many untimely claims with no explanation is an example of an abusive writ

practice.

The second of the Clark exceptions to our timeliness rules allows for a court to

consider an otherwise untimely claim that ―the petitioner is actually innocent of the

crime or crimes of which [he] was convicted.‖ (In re Clark, supra, 5 Cal.4th at

pp. 797-798.) Petitioner contends his petition falls within this exception because he is

innocent of murdering Fowler and Chavez in 1976 and Carl Jr. in 1978. The

argument need not long detain us, for petitioner‘s allegations of innocence do not

approach the high bar this court has set for such claims; that is, the allegations do not

cast fundamental doubt on the accuracy and reliability of the trial proceedings, nor

undermine the prosecution‘s entire case and ― ‗ ―point unerringly to innocence or

reduced culpability.‖ ‘ ‖ (In re Lawley, supra, 42 Cal.4th at p. 1239; see Clark, at

p. 798, fn. 33.) Although the passage of time and the application of defense counsel‘s

energy and money have allowed counsel to raise some questions at the periphery of

the body of evidence against petitioner, such questions do not strike at the heart of the

prosecution‘s case. ―Evidence relevant only to an issue already disputed at trial,

which does no more than conflict with trial evidence, does not constitute ‗ ―new

evidence‖ that fundamentally undermines the judgment.‘ ‖ (Clark, at p. 798, fn. 33.)

Rather, a petitioner must show ―the evidence of innocence could not have been, and

presently cannot be, refuted.‖ (Ibid.) We conclude the untimeliness of the claims

raised in the present petition cannot be excused by reliance on the exception for

claims of actual innocence.

The third of the Clark exceptions to our timeliness rules is that ―the death

penalty was imposed by a sentencing authority which had such a grossly misleading

profile of the petitioner before it that absent the trial error or omission no reasonable

judge or jury would have imposed a sentence of death.‖ (In re Clark, supra, 5 Cal.4th

at p. 798.) Petitioner contends his petition falls within this exception because his trial

46

attorney performed deficiently in presenting available mitigating evidence to the jury.

Accordingly, he contends claim Nos. 107, 108, 109 (which concern the alleged failure

to present mitigating evidence at the penalty phase), 110 (alleging counsel‘s failure to

argue lingering doubt) and 111 (alleging counsel‘s failure to effectively cross-

examine a prosecution witness at the penalty phase) should be considered despite their

manifest untimeliness.

We explained the contours of this exception in Clark: ―[A] ‗grossly

misleading profile‘ is not one which simply fails to alert the jury to some potentially

mitigating evidence. The picture of the defendant painted by the evidence at trial

must differ so greatly from his or her actual characteristics that the court is satisfied

that no reasonable judge or jury would have imposed the death penalty had it been

aware of the defendant‘s true personality and characteristics.‖ (In re Clark, supra, 5

Cal.4th at p. 798, fn. 34.) Here, the defense called a single witness at the penalty

phase: petitioner‘s youngest sister, Kathy Klabunde. She testified that their father

was a violent alcoholic who verbally abused his children. Their mother was a strict

Catholic who disapproved of petitioner‘s homosexuality. Klabunde also testified that

petitioner had suffered from severe migraine headaches since he was young, which

resulted in his being quick to anger. Petitioner was shocked to discover Klabunde

intended to testify on his behalf, and he was ―very adamant‖ that she not do so.

Although petitioner was represented by counsel, he interrupted Klabunde‘s testimony

at several points with objections, which the court overruled. When Klabunde testified

that petitioner had cried when she called him several years earlier to say their mother

had died, petitioner yelled out, ―You‘re lying!‖ After Klabunde‘s testimony,

petitioner successfully sought to reopen the case so that he could testify. He then read

a statement to the jury, asking for a death verdict. ―At closing argument, counsel

emphasized [petitioner‘s] mental problems‖ as well as the ―positive aspects of his

47

background and character, including his remorse when he was discovered.‖ (Memro

II, supra, 11 Cal.4th at p. 817.)

Although petitioner now presents allegations of additional facts relevant to his

abusive childhood and his mental illness, and supports them with declarations from

nine family members and social historian Dr. Gretchen White, this allegedly new

evidence fails to reach the high standard of showing that the jury was presented with

such a ―grossly misleading profile‖ at the penalty phase that ―no reasonable judge or

jury would have imposed the death penalty had it been aware of the defendant‘s true

personality and characteristics.‖ (In re Clark, supra, 5 Cal.4th at p. 798, fn. 34.)

Instead, it merely elaborates upon and embellishes Klabunde‘s testimony. We

conclude the untimeliness of claim Nos. 107, 108, 109, 110 and 111 cannot be

excused by reliance on the third Clark exception.

The fourth and final of the Clark exceptions permits consideration of a delayed

claim that alleges the petitioner was convicted under an invalid statute. (In re Clark,

supra, 5 Cal.4th at p. 798.) In an attempt to qualify under this exception, petitioner

argues he has ―raised twelve (12) non-repetitive claims challenging the validity of the

California death penalty statutes.‖ Accordingly, he contends claim Nos. 128 through

139—all of which concern the constitutionality of the death penalty law—should be

considered despite the untimeliness of their presentation. (See fn. 17, ante.)

As we noted in footnote 17, ante, we agree claim Nos. 123, 128, 129, 130, 133,

134, 135, 136, 137, 138 and 139 fall within Clark‘s fourth exception. (In re Clark,

supra, 5 Cal.4th at p. 765, fn. 4; id. at p. 798.) Claim Nos. 125 and 127 attack the

efficacy of this court‘s prior review and are similarly not untimely. Claim Nos. 131

and 132 do not challenge the validity of a statute but are not untimely because both

claims are premature: claim No. 131 alleges the unconstitutionality of execution by

lethal injection (People v. Boyer, supra, 38 Cal.4th at p. 485), and claim No. 132

alleges the unconstitutionality of execution after a prolonged confinement. Finally,

48

claim No. 143, alleging the cumulative effect of all errors, is not untimely because it

incorporates some claims that are timely.

In sum, of petitioner‘s 143 claims, 16 are not barred as untimely. (See fn. 17,

ante.) The balance of his 143 claims are untimely under the standards set forth in our

precedents. To raise a multitude of untimely claims without making a plausible effort

to demonstrate a proper justification of timeliness, or without any justification at all,

is an example of abusive writ practice.

2. Waltreus

There may be no more venerable a procedural rule with respect to habeas

corpus than what has come to be known as the Waltreus rule; that is, legal claims that

have previously been raised and rejected on direct appeal ordinarily cannot be reraised

in a collateral attack by filing a petition for a writ of habeas corpus. The origins of the

rule may be traced at least as far back as 1945, where in In re Byrnes (1945) 26 Cal.2d

824 we suggested that a criminal defendant could not properly file a petition for a writ

of habeas corpus in lieu of directly appealing a conviction, noting that ―[i]t is well

settled that a writ of habeas corpus ordinarily may not be employed as a substitute for

an appeal‖ (id. at p. 827, italics added). Relying on Byrnes, we later refined the

concept, opining that habeas corpus ―will not lie ordinarily as a substitute for an

appeal [citation] nor as a second appeal.‖ (In re Winchester (1960) 53 Cal.2d 528,

532, italics added.) These authorities led to the decision from which the Waltreus rule

draws its name. In Waltreus, a defendant filed a petition for a writ of habeas corpus,

repeating several legal issues this court had already considered and found lacking in

merit on direct appeal. We declined to address those renewed claims, noting simply

that ―[t]hese arguments were rejected on appeal, and habeas corpus ordinarily cannot

serve as a second appeal.‖ (In re Waltreus, supra, 62 Cal.2d at p. 225.)

49

We stated the rule plainly in In re Harris, supra, 5 Cal.4th at page 825:

―[W]hen a criminal defendant raises in a petition for a writ of habeas corpus an issue

that was raised and rejected on direct appeal, this court usually has denied the petition

summarily, citing Waltreus, supra, 62 Cal.2d 218. . . . By citing Waltreus in our

summary denial orders, we have intended to communicate that because the issue was

previously raised and rejected on direct appeal, and because the petitioner does not

allege sufficient justification for the issue‘s renewal on habeas corpus, the issue is

procedurally barred from being raised again.‖ The Waltreus rule is thus consistent

with the very nature of habeas corpus; that is, an extraordinary remedy applicable

when the usual channels for vindicating rights—trial and appeal—have failed. If an

issue has been raised and rejected first at trial and then on appeal, no reason exists to

permit what amounts to a third bite of the apple. Indeed, in this age of dramatically

increased filings and shrinking judicial resources, the justification for the Waltreus

rule retains continued, if not enhanced, power, and the rule has been cited consistently

and continuously since 1965 when In re Waltreus was first decided. (See, e.g., In re

Sakarias, supra, 35 Cal.4th at p. 145; In re Seaton (2004) 34 Cal.4th 193, 199; Marks

v. Superior Court (2002) 27 Cal.4th 176, 188; In re Gay (1998) 19 Cal.4th 771, 780,

fn. 4; In re Robbins, supra, 18 Cal.4th at p. 778, fn. 1; In re Harris, supra, 5 Cal.4th at

p. 824 et seq.; In re Jackson (1992) 3 Cal.4th 578, 586, fn. 2; In re Foss (1974) 10

Cal.3d 910, 930; In re Walker (1974) 10 Cal.3d 764, 781.)

We continued in In re Harris, supra, 5 Cal.4th 813, to describe the four

exceptions to the Waltreus rule. As we explained there, a petitioner can renew a legal

issue, despite having raised the issue unsuccessfully on appeal, in four circumstances:

(1) where the issue constitutes a fundamental constitutional error; that is, ―where the

claimed constitutional error is both clear and fundamental, and strikes at the heart of

the trial process‖ (Harris, at p. 834); (2) where the judgment of conviction was

rendered by a court lacking fundamental jurisdiction, described as ―an entire absence

50

of power to hear or determine the case, an absence of authority over the subject matter

or the parties‖ (Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 288; see

Harris, at p. 836 [citing Abelleira in support]);22 (3) where the court acted in excess

of its jurisdiction, such as when it imposes an illegal sentence (Harris, at pp. 838-

839); and (4) ―when there has been a change in the law affecting the petitioner‖ (id. at

p. 841).

In the present petition, petitioner raises numerous claims subject to the

Waltreus rule and for which no exception applies.23 Claim No. 8, in which he alleges

22 Abelleira gave these examples of situations in which a court fundamentally

lacks jurisdiction: ―A state court has no jurisdiction to determine title to land located

outside its territorial borders, for the subject matter is entirely beyond its authority or

power. [Citation.] A court has no jurisdiction to adjudicate upon the marital status of

persons when neither is domiciled within the state. [Citations.] A court has no

jurisdiction to render a personal judgment against one not personally served with

process within its territorial borders . . . . [Citation.] A court has no jurisdiction to

hear or determine a case where the type of proceeding or the amount in controversy is

beyond the jurisdiction defined for that particular court by statute or constitutional

provision. [Citation.]‖ (Abelleira v. District Court of Appeal, supra, 17 Cal.2d at

p. 288.)

23 To give the reader an idea of the scope of the problem, we note that in addition

to the double jeopardy argument raised in claim No. 8, which we address in depth

below, petitioner‘s habeas corpus petition alleges the following claims that, by his

own admission, were raised and rejected on appeal:

Claim No. 1 (lack of probable cause to arrest; see Memro II, supra, 11 Cal.4th

at pp. 838-843);

Claim No. 2 (his confession was coerced; Memro II, at pp. 822-827);

Claim No. 3 (illegal search of his apartment; Memro II, at pp. 846-847);

Claim No. 4 (invalid Miranda waiver; Memro II, at pp. 826-827);

Claim No. 6 (his second confession was tainted by his first confession; Memro

II, at pp. 834-835);

Claim No. 9 (court‘s failure in Memro I, supra, 38 Cal.3d 658, to decide

sufficiency of evidence of premeditation; Memro II, at p. 822);

Claim No. 10 (retrial violated double jeopardy because he was acquitted of

premeditation murder in Memro I; Memro II, at pp. 820-821);

Claim No. 12 (same claim as claim No. 10);

51

Claim No. 16 (admission of Cornejo‘s perjurious testimony at the Evid. Code,

§ 402 hearing; Memro II, at pp. 827-828);

Claim No. 17 (error under Pitchess v. Superior Court, supra, 11 Cal.3d 531;

Memro II, at pp. 829-832);

Claim No. 18 (destruction of police personnel records; Memro II, at pp. 829-

832);

Claim No. 19 (discovery violation; Memro II, at pp. 836-838);

Claim No. 24 (speedy trial violation; Memro II, at pp. 852-853);

Claim No. 27 (denial of motion to exclude police witnesses from courtroom;

Memro II, at p. 844);

Claim No. 28 (seizure of legal materials from petitioner‘s jail cell; Memro II, at

pp. 835-836);

Claim No. 29 (Cornejo‘s testimony violated petitioner‘s right to counsel

because he was a government agent when he questioned petitioner; Memro II, at pp.

827-828);

Claim No. 30 (denial of motion to renew suppression motion; Memro II, at pp.

844-845);

Claim No. 31 (denial of motion to sever counts; Memro II, at pp. 847-851);

Claim No. 32 (denial of motion for an in camera hearing on inconsistent

defenses; Memro II, at pp. 848-849, 851);

Claim No. 33 (denial of motion to substitute counsel; Memro II, at pp. 853-

859);

Claim No. 37 (Cornejo‘s testimony violated petitioner‘s Sixth Amend. rights;

Memro II, at pp. 827-828);

Claim No. 39 (failure to obtain waivers before counsel conceded guilt of Carl

Jr.‘s murder; (Memro II, at pp. 857-858);

Claim No. 40 (admission of postmortem photographs; Memro II, at pp. 865-

866);

Claim No. 41 (admission of photographs and magazines seized at petitioner‘s

home; Memro II, at pp. 864-865);

Claim No. 47 (failure to give CALJIC No. 2.91; Memro II, at pp. 868-869);

Claim No. 48 (failure to instruct on lesser offenses for lewd act; Memro II, at

pp. 870-873);

Claim No. 49 (failure to instruct jurors they must unanimously agree on nature

of lewd act; Memro II, at pp. 869-870);

Claim No. 56 (granting motion to waive jury for penalty trial; Memro II, at

p. 875);

Claim No. 57 (counsel‘s failure to inform petitioner of the defense strategy;

Memro II, at pp. 875-877);

Claim No. 58 (allowing petitioner to testify at the penalty phase without

cautioning him or admonishing the jury; Memro II, at p. 878);

52

his prosecution for murdering Carl Jr. constituted double jeopardy in violation of his

constitutional and statutory rights,24 is representative of the abusive nature of these

Claim No. 59 (failure to omit Pen. Code, § 190.3, factors (e) & (j) as mitigating

circumstances; Memro II, at p. 880);

Claim No. 60 (failure to instruct on elements of uncharged offense; Memro II,

at pp. 880-881);

Claim No. 61 (inadequacy of Pen. Code, § 190.3, factor (k) instruction; Memro

II, at p. 881);

Claim No. 62 (failure to instruct on consequences of jury deadlock at the

penalty phase; Memro II, at p. 882);

Claim No. 63 (refusal to instruct on lingering doubt; Memro II, at p. 883);

Claim No. 65 (improper denial of motion to modify the death verdict; Memro

II, at pp. 883-886);

Claim No. 66 (trial court improperly considered the probation report before it

ruled on the modification motion; Memro II, at p. 886);

Claim No. 67 (insufficient evidence petitioner killed Carl Jr. in the course of a

lewd act; Memro II, at pp. 861-862);

Claim No. 68 (insufficient evidence petitioner premeditated the killing of Carl

Jr. and Chavez; Memro II, at pp. 862-864);

Claim No. 70 (prosecutorial misconduct in failing to inform the defense the

prosecution would rely on a felony-murder theory; Memro II, at p. 869);

Claim No. 73 (comment on petitioner‘s failure to testify; Memro II, at pp. 873-

874);

Claim No. 80 (improper cross-examination of petitioner at the penalty phase;

Memro II, at pp. 878-879);

Claim No. 81 (inadequate notice of aggravating evidence; Memro II, at pp.

877-878).

In addition, to the extent claim No. 78, which alleges the prosecutor‘s

argument impermissibly shifted the burden of proof to petitioner, also alleges the

prosecutor impermissibly commented on petitioner‘s failure to testify, it, too, is barred

by the Waltreus rule. (Memro II, supra, 11 Cal.4th at pp. 873-874.) To the extent

claim No. 37, above, alleges counsel was ineffective, it is not barred by the Waltreus

rule. (See In re Robbins, supra, 18 Cal.4th at p. 814, fn. 34; People v. Mendoza Tello

(1997) 15 Cal.4th 264, 267.)

24 Fifth Amendment to the United States Constitution (―No person shall be . . .

subject for the same offense to be twice put in jeopardy of life or limb . . .‖); Benton v.

Maryland (1969) 395 U.S. 784 (federal double jeopardy clause applicable to the

states); People v. Gurule (2002) 28 Cal.4th 557, 646 (recognizing same); California

Constitution, article 1, section 15; Penal Code section 1023.

53

renewed claims. In petitioner‘s first trial, the prosecution relied on two theories to

support the charge of first degree murder: petitioner killed with premeditation and

deliberation, and he killed during the commission of a felony, i.e., a lewd and

lascivious act on a child (Pen. Code, § 288). In addition, the prosecution charged two

special circumstance allegations: multiple murder and felony murder, identifying the

aforementioned lewd act crime as the triggering felony. (Pen. Code, § 190.2, former

subd. (c)(3)(iv), (5), now see subd. (a)(3), (17)(E).) The trial court, sitting as the trier

of fact, convicted petitioner of two counts of first degree murder (victims Carl Jr. and

Chavez) and one count of second degree murder (victim Fowler), sustained a

multiple-murder special-circumstance allegation, but found the felony-murder (lewd

conduct with a child) special-circumstance allegation not true. (Memro I, supra, 38

Cal.3d at p. 666.) As noted above, we reversed the entire judgment due to a pretrial

discovery violation.

On retrial, the prosecution again charged petitioner with the first degree murder

of Carl Jr. and Chavez and the second degree murder of Fowler. For the retrial, the

prosecution charged petitioner with a multiple-murder special circumstance, but did

not reallege the lewd act felony-murder special-circumstance allegation. (Memro II,

supra, 11 Cal.4th at p. 811.) Regarding the theory of the murder, however, the

prosecution argued—as before—to the jury that petitioner had either premeditated and

deliberated Carl Jr.‘s murder or killed him while committing a lewd act, or both. (Id.

at p. 820.) A jury convicted petitioner on all counts.

On appeal to this court, petitioner claimed his prosecution for murdering

Carl Jr., presented to the jury in part on a felony-murder theory that he had committed

a lewd act on the victim, violated his double jeopardy rights because the trial court in

Memro I had found the felony-murder special circumstance untrue. We disagreed:

―Defendant was convicted of [Carl Jr.‘s] murder at his first trial. Retrying him on a

charge of murder did not place him twice in jeopardy for that offense. ‗ ―It has long

54

been settled . . . that the Double Jeopardy Clause‘s general prohibition against

successive prosecutions does not prevent the government from retrying a defendant

who succeeds in getting his first conviction set aside, through direct appeal or

collateral attack, because of some error in the proceedings leading to conviction.‖ ‘ ‖

(Memro II, supra, 11 Cal.4th at p. 821, quoting People v. Santamaria (1994) 8 Cal.4th

903, 910-911.)

Petitioner‘s petition, however, fails to reveal that the double jeopardy issue was

resolved against him on direct appeal. Raising this issue in the instant petition thus

directly implicates our rule in In re Waltreus, supra, 62 Cal.2d 218.25

The petition also fails to allege any facts suggesting the double jeopardy issue

falls within one of the narrow exceptions to the Waltreus rule, i.e., facts suggesting

the double jeopardy claim involves a fundamental constitutional error, or that the trial

court lacked fundamental jurisdiction, or that the court acted in excess of jurisdiction,

or that there has been a postappeal change in the law. (In re Harris, supra, 5 Cal.4th

at pp. 829-841.) Indeed, the allegations in the petition related to this claim read as if

the claim is being presented to the court for the very first time.

Just as a petitioner bears the burden in a habeas corpus petition to allege why

the petition is timely (In re Robbins, supra, 18 Cal.4th at p. 780 [regarding the

timeliness of the petition, ―the petitioner has the burden of establishing (i) absence of

substantial delay, (ii) good cause for the delay, or (iii) that the claim falls within an

exception to the bar of untimeliness‖]), the petitioner must also allege why a claim

25 Because petitioner failed to raise this issue in his first petition for a writ of

habeas corpus (In re Memro, S044437), the claim is procedurally barred for that

reason as well. (In re Clark, supra, 5 Cal.4th at pp. 774-775; In re Horowitz, supra,

33 Cal.2d at pp. 546-547.) In addition, because the facts underlying the claim were

known at the time of retrial in 1987, petitioner presents the claim after a substantial

and unexplained delay. (See In re Robbins, supra, 18 Cal.4th 770.) For purposes of

illustration, however, we will focus on the Waltreus issue.

55

raised and rejected on appeal is not barred by the Waltreus rule. Petitioner concedes

as much, noting in his traverse that, ―[a]s with all other procedural default exceptions,

[he] has the burden of establishing a prima facie case that the Waltreus bar does not

apply.‖ Yet the petition now before the court, despite its marked prolixity, is lacking

in any proper allegation satisfying this pleading burden.

Petitioner‘s only attempt in his petition to explain why he is raising the double

jeopardy issue again is his global prefatory statement, apparently designed to apply to

all procedurally barred claims but not made specifically applicable to claim No. 8,

that he ―has included all known claims of constitutional error related to his trial,

convictions, sentence and imprisonment for the sake of a clear presentation and so this

Court can assess the cumulative effect [of any errors] and determine that a

miscarriage of justice occurred. This includes claims that have been previously

presented.‖ (Italics added.) In his informal reply, petitioner asserts that he has

presented otherwise barred claims again ―for the purpose of incorporation into the

cumulative error claims, claims 140 through 143, and to exhaust the cumulative error

claims‖ for federal court purposes.

This purported ―cumulative error‖ explanation is patently inadequate, as

petitioner‘s global assertion does not satisfy his pleading burden. Indeed, claim No. 8

is misleadingly phrased as if it is being raised for the first time and not simply to be

considered in conjunction with other claims. We require a litigant seeking relief on

habeas corpus to ―state fully and with particularity the facts on which relief is sought‖

(People v. Duvall, supra, 9 Cal.4th at p. 474; see In re Swain, supra, 34 Cal.2d at pp.

303-304 [warning against ―vague, conclusionary allegations‖ in a habeas corpus

petition]), and this pleading requirement logically applies to explaining why a specific

claim is cognizable in the first place. Merely inserting a general, catchall allegation at

the beginning of a petition, asserting that all substantive claims (including

procedurally improper claims) are being raised anew, despite having been previously

56

considered in various forms and rejected by this court, to allow us to assess the

―cumulative effect‖ of all possible errors, fails to acknowledge that for those claims

previously rejected on appeal on their merits (as opposed to a lack of prejudice), we

have already concluded no error occurred. The petition does not explain how actions

or omissions by the prosecutor and/or the trial court that have been found not to be

error may later be aggregated to comprise a new claim that falls outside the Waltreus

rule. (See People v. Hovarter (2008) 44 Cal.4th 983, 1030 [―Having found no errors

and certainly no prejudicial ones,‖ appellate claim that the ―cumulative effect of the

errors‖ requires reversal rejected]); People v. McDermott (2002) 28 Cal.4th 946, 1005

[same].)

This affirmative pleading rule is similar to the rule followed in other states that

have a death penalty. For example, in order to gain postconviction relief under

Pennsylvania statutory law, ―the petitioner must plead and prove by a preponderance

of the evidence . . . [t]hat the allegation of error has not been previously litigated or

waived.‖ (42 Pa. Cons. Stat. § 9543(a)(3); see 3 Wilkes, State Postconviction

Remedies and Relief Handbook (2011) § 41:12, pp. 506-507 (Wilkes).) Similarly,

Texas requires that ―(a) If a subsequent application for writ of habeas corpus is filed

after final disposition of an initial application challenging the same conviction, a court

may not consider the merits of or grant relief based on the subsequent application

unless the application contains sufficient specific facts establishing that: [¶] (1) the

current claims and issues have not been and could not have been presented previously

in an original application or in a previously considered application filed under this

article because the factual or legal basis for the claim was unavailable on the date the

applicant filed the previous application; or [¶] (2) by a preponderance of the evidence,

but for a violation of the United States Constitution no rational juror could have found

the applicant guilty beyond a reasonable doubt.‖ (Tex. Code of Crim. Proc., art.

11.07, § 4(a); 4 Wilkes, supra, § 46:14, pp. 13-14.) In Florida, a postconviction

57

motion to vacate or set aside a sentence after conviction must state ―whether a

previous postconviction motion has been filed, and if so, how many,‖ as well as allege

―the reason or reasons the claim or claims in the present motion were not raised in the

former motion or motions.‖ (Fla. Rules of Crim. Proc., rule 3.850(c)(3), (4); 1

Wilkes, supra, § 12:3, p. 460.) The same Florida rule states specifically that the

motion must include this statement: ―This rule does not authorize relief based on

grounds that could have or should have been raised at trial and, if properly preserved,

on direct appeal of the judgment and sentence.‖ (Fla. Rules of Crim. Proc., rule

3.850(c); 1 Wilkes, supra, § 12:3, p. 460.)

In theory, the aggregate prejudice from several different errors occurring at

trial could require reversal even if no single error was prejudicial by itself. ―[A] series

of trial errors, though independently harmless, may in some circumstances rise by

accretion to the level of reversible and prejudicial error.‖ (See People v. Hill (1998)

17 Cal.4th 800, 844.) To the extent these errors are based on the appellate record,

however, a petitioner cannot wait and raise the cumulative error claim for the first

time on habeas corpus; he must raise the claim on appeal. (In re Dixon, supra, 41

Cal.2d at p. 759.) Alternatively, if a petitioner has a previously unraised claim based

on newly discovered evidence that was not reasonably discoverable at the time of trial

(or even the first habeas corpus petition), the cumulative prejudice flowing from that

single error, when combined with the prejudice from other errors already raised and

rejected on appeal for lack of individual prejudice, could rise to a level at which a

court could conclude the petitioner was denied a fair trial, even if no single error

required reversal. (In re Jones (1996) 13 Cal.4th 552, 583, and cases cited.) As

noted, claims previously rejected on their substantive merits—i.e., this court found no

legal error—cannot logically be used to support a cumulative error claim because we

have already found there was no error to cumulate.

58

But even admitting the possibility that a litigant could renew past claims

previously rejected solely for lack of prejudice, our consideration of a cumulative

error claim (or more precisely, a cumulative prejudice claim) does not require a

petitioner to restate the entirety of his appellate briefing. If petitioner has a new

claim, the exhaustion petition should state clearly what is factually or legally new, i.e.,

not presented before, either on appeal or in a previous petition. When evaluating an

exhaustion petition, we will assume nothing is new except what is clearly and

specifically identified as such. If a previously raised and rejected claim is being

reasserted as part of a cumulative prejudice claim, that fact should be made clear, not

obscured as it was in this case.

To add previously rejected claims to a new claim, petitioners should simply

raise their new claims, clearly identify them as ―new,‖ and then in a table or chart

accompanying the petition identify which appellate claims, previously denied for lack

of prejudice, are being reraised to support a cumulative prejudice claim. The table

should state where these prior claims appear in the petitioner‘s appellate briefs and

include citations to the part in our opinion where we rejected them. We anticipate this

table should not be longer than 10 pages and in many cases will be shorter. (See pp.

3-4, ante, and p. 112, post.)

Petitioners need not separately or specifically request judicial notice of all

documents connected with their past appeals and habeas corpus proceedings, as in

capital cases this court routinely consults prior proceedings irrespective of a formal

request. This rule will help streamline consideration of habeas corpus petitions in

capital cases and eliminate a potential trap for the unwary, as rules 8.252(a) and

8.520(g) of the California Rules of Court require, among other things, that requests

for judicial notice be served and filed under separate cover with a proposed order,

something petitioner did not do here.

59

We have examined petitioner‘s previous appeal in Memro II, supra, 11 Cal.4th

786, and have identified five appellate claims arguably denied for lack of prejudice

only. First, we determined that ―even if [trial] counsel were deficient for not

questioning each potential juror—an unlikely prospect—we cannot conclude that

defendant was prejudiced.‖ (Id. at p. 819.) Second, in responding to petitioner‘s

claim that following his first trial authorities improperly confiscated his personal legal

papers, we agreed with the trial court that presided over the retrial that ―even if there

was intentional interference with [petitioner‘s Sixth Amendment right to counsel],

[he] had been able to show no prejudice.‖ (Id. at p. 836.) Third, regarding

petitioner‘s claim that trial counsel was ineffective for failing to better brief the

suppression motion, we found the claim meritless because ―there was no reasonable

probability‖ of a different outcome had counsel submitted a better brief. (Id. at

p. 845.) Fourth, concerning the lawfulness of the search of petitioner‘s apartment, we

concluded any error was harmless in light of the overwhelming evidence of guilt. (Id.

at p. 847.) Fifth, we found the trial court‘s consideration of the probation report when

ruling on the motion to modify the verdict was harmless because it played no part in

the trial court‘s ruling. (Id. at p. 886.) Petitioner could theoretically reraise these

claims as part of a cumulative prejudice claim despite the Waltreus rule, arguing that

any prejudice flowing from those alleged errors, when combined with the alleged

prejudice resulting from any legitimately new claim, justifies relief. Such a claim,

however, would require careful pleading to make clear the prior claims were being

reraised not on their own behalf, but in support of a cumulative prejudice claim

comprised of the earlier claims and a legitimately new and timely claim of error.

Were we to reject such a properly pleaded cumulative prejudice claim, the rejection

would necessarily imply that we also reject a cumulative prejudice claim

encompassing any prior claims previously rejected on the merits and not solely for

lack of prejudice.

60

Instead of such pinpoint allegations, however, petitioner has reraised all prior

appellate claims en masse. In his words, he ―has included all known claims of

constitutional error related to his trial, convictions, sentence and imprisonment for the

sake of clear presentation and so this Court can assess the cumulative effect [of any

errors] and determine that a miscarriage of justice occurred.‖ (Italics added.) This

conception of cumulative prejudice, which incorporates all past claims including

those rejected on the merits, does not come within any exception to the Waltreus rule.

(See In re Harris, supra, 5 Cal.4th at pp. 829-841.)

Were we to accept petitioner‘s attempt to evade the Waltreus rule on the

proffered ground that reconsideration of all previously denied claims is necessary in

order to assess his cumulative prejudice argument, we would undermine the very

purpose of the rule. We reiterate that habeas corpus is an extraordinary remedy, a

safety valve for those unlikely and rare instances in which the usual trial and appellate

process proves inadequate to vindicate a defendant‘s right to a fair trial. Allowing a

litigant to repeatedly reopen his case would undermine the finality of criminal

judgments and denigrate society‘s legitimate expectation that judgments will be

carried out. We thus reject petitioner‘s cumulative prejudice argument as

procedurally deficient and also as lacking any basis evident in this petition.

After filing his petition, petitioner had two additional opportunities to allege

facts suggesting why he is entitled to renew a claim specifically rejected on appeal.

First, following the filing of the petition, the People highlighted in their informal

response that claim No. 8 alleging double jeopardy had been raised and rejected on

appeal; that is, that the claim was barred by the Waltreus rule. In his informal reply,

petitioner responded to the People‘s argument simply by repeating the assertion that

claim No. 8 was included ―for the purpose of incorporation into the cumulative error

claims, Claims 140 through 143, and to exhaust [those claims for purposes of federal

61

court review].‖ As noted above, this assertion fails to establish the cognizability of

the claim in a successive habeas corpus petition.

In the same informal reply, petitioner added the global assertion, with no

argument or factual allegations specific to claim No. 8 (or any other claim), that the

Waltreus rule does not apply because the claim comes within one of the narrow

exceptions to the rule described in In re Harris, supra, 5 Cal.4th at pages 829-841.26

The petition fails to allege which of the four exceptions applies or why any of them

might apply. As we have explained, the exceptions to Waltreus described in Harris

are narrow and require particular allegations; they are easy to allege, but difficult to

establish. (Harris, at p. 834 [―Where an issue was available on direct appeal, the

mere assertion that one has been denied a ‗fundamental‘ constitutional right can no

longer justify a postconviction, postappeal collateral attack . . .‖].) As neither the

petition nor the informal reply makes any attempt to allege facts suggesting one of the

Harris exceptions applies here, we ascribe no weight to these assertions, unadorned as

they are by factual allegations or legal argument.

Following issuance of the order to show cause in this case, the People filed a

return in which they again argued claim No. 8 was procedurally barred by the

Waltreus rule. In his traverse, petitioner renews his meritless argument that

reconsideration of the double jeopardy claim is necessary to evaluate his cumulative

prejudice claim. In addition—for the first time—he makes specific allegations that

claim No. 8 falls within several of the exceptions to the Waltreus rule, but as we

explain, his contentions are meritless.

Petitioner first alleges a change in the law has occurred since his appeal (In re

Harris, supra, 5 Cal.4th at p. 841) and that he has ―substantially altered‖ his double

26 Although this argument quite plainly references Waltreus, the argument resides

in a section of the brief addressing In re Dixon, supra, 41 Cal.2d 756, i.e., claims that

were not but should have been raised on appeal. (See discussion, post, pt. II.B.3.)

62

jeopardy claim to take advantage of this new authority. But he neither cites nor

discusses any new authority (that is, any authority decided after the finality of our

November 30, 1995, decision in Memro II, supra, 11 Cal.4th 786). Instead he merely

lists 12 appellate decisions in a long footnote and implies the cited authorities

constitute new authority, unavailable at the time of his appeal, supporting his claim.

This assertion is frivolous. All of the authorities he cites as demonstrating a change in

the law were cited in his opening brief on appeal in 1993 or in his reply brief on

appeal in 1994.27 The petition‘s allegations of a change in the law, allegedly bringing

his case outside the Waltreus rule, are grossly misleading. Petitioner has not

demonstrated a change in the law has occurred.

As a further exception to the Waltreus rule, petitioner contends his double

jeopardy claim constitutes a fundamental constitutional error. (In re Harris, supra, 5

Cal.4th at pp. 829-836.) We explained in Harris that the Waltreus rule did not apply

to errors that were ―both clear and fundamental, and strike[] at the heart of the trial

process.‖ (Harris, at p. 834.) To suggest how such claims differ from the quotidian

type of trial errors, we cited Arizona v. Fulminante (1991) 499 U.S. 279, 309, which

discusses errors amounting to a structural defect for which a harmless error

assessment is impossible (id. at pp. 308-310). Petitioner‘s renewed double jeopardy

claim does not rise to this level. Indeed, other than reasserting that his trial in Memro

II violated his double jeopardy rights, and that those rights find their genesis in the

United States Constitution, petitioner alleges no facts nor provides any argument why

27 Petitioner cites the following authorities, implying they constitute a change in

the law: United States v. Dixon (1993) 509 U.S. 688; Smalis v. Pennsylvania (1986)

476 U.S. 140; Richardson v. United States (1984) 468 U.S. 317; Bullington v.

Missouri (1981) 451 U.S. 430; Brown v. Ohio (1977) 432 U.S. 161; United States v.

Morrison (1976) 429 U.S. 1; Ashe v. Swenson (1970) 397 U.S. 436; Benton v.

Maryland, supra, 395 U.S. 784; Blockburger v. United States (1932) 284 U.S. 299;

People v. McDonald (1984) 37 Cal.3d 351; People v. Superior Court (Engert) (1982)

31 Cal.3d 797; People v. Asbury (1985) 173 Cal.App.3d 362.

63

this error is so serious and fundamental that we should entertain it now, after he failed

to take advantage of the opportunity before his retrial to plead ―[o]nce in jeopardy‖

(Pen. Code, § 1016) but then raised the legal issue on appeal (Memro II, supra, 11

Cal.4th at pp. 820-822). Legal counsel can generally plead some plausible

constitutional basis for any type of trial error, but this exception to the Waltreus rule is

reserved for those errors so serious and fundamental that setting aside the state‘s

weighty interest in the finality of criminal judgments would be justified. Petitioner‘s

allegations in this regard are wholly inadequate.

Aside from the Harris exceptions to the Waltreus rule, petitioner contends

generally in his traverse that he is entitled to present his double jeopardy claim a

second time because his appellate counsel‘s presentation of the issue on appeal was

―inadequate,‖ thereby violating his right to the effective assistance of appellate

counsel. This claim, too, is meritless. The claim of ineffective assistance of appellate

counsel (IAAC) does not raise the same substantive issue, but is instead a new,

independent claim (see In re Harris, supra, 5 Cal.4th at p. 833 [―claims of

‗fundamental‘ constitutional error come to this court clothed in ‗ineffective assistance

of counsel‘ raiment‖]), a point petitioner recognizes by raising an independent claim

of IAAC in claim No. 141. Assessing that independent claim requires the application

of settled law. ―[A] criminal defendant is guaranteed the right to effective legal

representation on appeal‖ (In re Sanders, supra, 21 Cal.4th at p. 715; see also In re

Smith (1970) 3 Cal.3d 192, 202-203 [―the inexcusable failure of petitioner‘s appellate

counsel to raise crucial assignments of error, which arguably might have resulted in a

reversal, deprived petitioner of the effective assistance of appellate counsel . . .‖]); to

be competent, appellate counsel must ― ‗prepare a legal brief containing citations to

the . . . appropriate authority, and set[] forth all arguable issues‘ ‖ (People v. Barton

(1978) 21 Cal.3d 513, 519, fn. omitted), but need not raise all nonfrivolous issues

(Sanders, at pp. 715-716, citing Jones v. Barnes, supra, 463 U.S. 745). Even if

64

petitioner could demonstrate his appellate attorney acted unreasonably, he must still

show prejudice. (Smith v. Robbins (2000) 528 U.S. 259, 285-286; In re Harris, supra,

5 Cal.4th at p. 833.)

Assuming we could review the double jeopardy claim as reflected through a

claim of IAAC, the traverse‘s allegations fail both prongs of the foregoing test.

Petitioner first alleges appellate counsel failed to ―conduct a diligent review of the

appellate record,‖ ―identify triggering facts in the trial record,‖ identify the

―controlling law‖ applicable to the double jeopardy issue, investigate the claim based

on ―triggering facts outside the record,‖ and include the issue in the opening brief on

appeal. Most of these allegations are demonstrably untrue on their face. Appellate

counsel in fact raised the double jeopardy issue in the briefing before this court and

cited appropriate authority. To the extent petitioner now claims appellate counsel

failed to investigate the issue, he cites no facts suggesting what counsel did, what

counsel should have done, and what counsel would have found with a more vigorous

investigation. These pro forma allegations, which the petition apparently intends to

apply to all the Waltreus-barred claims, are inadequate.

Second, the petition includes no allegations regarding how petitioner was

prejudiced. Inasmuch as appellate counsel raised the double jeopardy issue on appeal,

petitioner is left with the argument that appellate counsel‘s presentation of the issue

was so inadequate that, had it been better presented, this court would have accepted it

and reversed the judgment. The petition makes no factual allegations approaching

such a claim. Accordingly, the claim that appellate counsel was constitutionally

ineffective is devoid of appropriate supporting allegations and thus cannot justify the

repetitive presentation of the issue here.

Petitioner adds several other meritless arguments why his double jeopardy

claim is, or should be, excepted from the Waltreus rule. First, he argues that reraising

the double jeopardy claim is necessary to exhaust it for federal court purposes. We

65

are unconvinced such duplicative briefing is necessary for exhaustion purposes.

―Before a state prisoner may file a federal petition for a writ of habeas corpus, the

petitioner must exhaust state court remedies by presenting all federal claims to the

highest state court.‖ (In re Marquez (2007) 153 Cal.App.4th 1, 13, italics added.)

Because this court—California‘s highest state court—has rejected the double jeopardy

issue on appeal, the claim is already exhausted for federal purposes. (In re Robbins,

supra, 18 Cal.4th at p. 815, fn. 34 [―Our imposition of the bar of Waltreus, in this

context, signals that the claim has been exhausted in timely fashion on appeal.‖];

Carter v. Giurbino (9th Cir. 2004) 385 F.3d 1194, 1198 [―If the claim barred from

relitigation by Waltreus has already been decided by the California Supreme Court,

that claim is properly exhausted for federal habeas corpus review. Thus, a citation to

Waltreus does not prevent federal habeas review.‖]; Fields v. Calderon (9th Cir.

1997) 125 F.3d 757, 762, fn. 5 [same]; cf. O’Sullivan v. Boerckel (1999) 526 U.S.

838, 845 [for federal exhaustion purposes, ―state prisoners must give the state courts

one full opportunity to resolve any constitutional issues by invoking one complete

round of the State‘s established appellate review process.‖].)

We note the United States Supreme Court has acknowledged that invocation of

the Waltreus rule when denying a claim means further state review of the claim is

precluded, and that federal courts will ― ‗look[] through‘ ‖ a Waltreus denial to

determine whether the federal issue was exhausted on the ―last reasoned decision‖ on

the merits, i.e., direct appeal. (Ylst v. Nunnemaker (1991) 501 U.S. 797, 804, fn. 3.)

In short, even if petitioner‘s ability to exhaust claims for federal purposes were a

reason to overlook a procedural default under state law, that purported justification

does not apply to claims barred by the Waltreus rule. (To the extent a petitioner

wishes to exhaust a procedurally defaulted claim, he or she should place it in a table

or chart accompanying the petition, along with a summary description of the issue.

(See pp. 3-4, ante.))

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Second, petitioner contends this court should exercise its ―discretionary power

of review‖ to reconsider our prior denial of the double jeopardy issue. Even assuming

we have such power, the petition fails to explain why we should do so. Third,

petitioner contends renewal of the issue is justified because the current iteration of the

issue ―is more complete and detailed‖ than in prior pleadings or briefs. No doubt with

additional time, effort, thought and money, a previously raised issue might be more

clearly or persuasively articulated, but that is scant justification to undermine the

finality of a criminal judgment. Accepting that justification would lead to perpetual

renewals of claims with no judgment ever considered final. Fourth, petitioner

contends he has reraised the issue ―to provide context so that this Court may better

assess the prejudice stemming from the multitude of errors infecting petitioner‘s

capital proceedings.‖ We have already discussed this ―cumulative prejudice‖

justification and found it wanting; thus, on these pleadings, we reject the cumulative

prejudice justification for relitigating the same claim.

In sum, petitioner‘s claim that his prosecution for murder in Memro II, supra,

11 Cal.4th 786, constituted double jeopardy has been raised and rejected on appeal.

Because the habeas corpus petition falls short of demonstrating that this claim falls

within a recognized exception to the rule in In re Waltreus, supra, 62 Cal.2d 218,

prohibiting raising such claims on habeas corpus, this claim is barred by the Waltreus

rule. In addition, the petition alleges dozens of other claims we have determined were

similarly raised and rejected on appeal, and for which petitioner similarly fails to

allege sufficient facts showing the claim is excepted from the Waltreus rule (see fn.

23, ante), and a separate discussion of each of these claims would be fruitless. To

raise a multitude of Waltreus-barred claims without demonstrating those claims

qualify for an exception to the rule is an example of an abusive writ practice.

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3. Dixon

Closely related to the Waltreus rule is the analogous one set forth in In re

Dixon, supra, 41 Cal.2d at page 759: ―[T]he writ [of habeas corpus] will not lie

where the claimed errors could have been, but were not, raised upon a timely appeal

from a judgment of conviction.‖ By insisting on presentation of claims on appeal if

reasonably possible, the Dixon rule speeds resolution of claims, avoids delay, and

encourages the finality of judgments. Prompt presentation on appeal makes sense

because the evidence is relatively fresh; ―[i]t would obviously be improper to permit a

collateral attack because of claimed errors in the determination of the facts after

expiration of the time for appeal when evidence may have disappeared and witnesses

may have become unavailable.‖ (Id. at p. 761.) Like the Waltreus rule, the Dixon

rule is consistent with the concept of habeas corpus as an extraordinary remedy

available in those infrequent and unusual situations in which regular appellate

procedures prove inadequate. In short, a litigant is not entitled to raise an issue on

habeas corpus after having failed to raise the same issue on direct appeal.

This rule is firmly established in law (People v. Abilez (2007) 41 Cal.4th 472,

536; In re Sakarias, supra, 35 Cal.4th at p. 169; In re Seaton, supra, 34 Cal.4th at

p. 199; In re Robbins, supra, 18 Cal.4th at p. 778, fn. 1; People v. Mendoza Tello,

supra, 15 Cal.4th at p. 267; In re Harris, supra, 5 Cal.4th at p. 825, fn. 3; People v.

Jones (1973) 9 Cal.3d 546, 556, fn. 7) and is subject to the same four exceptions that

apply to the Waltreus rule (Robbins, at p. 814, fn. 34, fifth par.; Harris, at p. 825,

fn. 3).

Petitioner raises numerous claims subject to the Dixon rule and for which no

exception applies.28 Claim No. 35 is representative of the claims now raised that are

28 By his own admission, petitioner concedes the following claims could have

been, but were not, raised on appeal:

Claim No. 11 (failure to charge lewd-conduct felony in support of felony-

murder charge);

68

Claim No. 12 (reliance on premeditation theory violated double jeopardy);

Claim No. 13 (reliance on felony-murder theory violated double jeopardy);

Claim No. 22 (written stipulation to be tried by court commissioner not

knowing and intelligent);

Claim No. 23 (commissioner was biased);

Claim No. 34 (commissioner‘s rejection of petitioner‘s request for high

security housing);

Claim No. 35 (commissioner‘s failure to order that petitioner be separately

transported to court);

Claim No. 36 (consideration of evidence from Cornejo, a fellow inmate);

Claim No. 37 (error in admitting Cornejo‘s testimony);

Claim No. 42 (confining petitioner in marked patrol car during jury view of

crime scene);

Claim No. 43 (improper shackling during trial);

Claim No. 44 (admission of photos of nude boys was improper character

evidence);

Claim No. 45 (admission of nude photos and magazines improperly allowed

conviction based on petitioner‘s status as a sufferer of mental illness);

Claim No. 72 (prosecutor committed misconduct during argument by

misstating the law);

Claim No. 74 (prosecutor committed misconduct during argument by taking

advantage of erroneous jury instructions);

Claim No. 75 (prosecutor committed misconduct during argument by

commenting on petitioner‘s sexuality);

Claim No. 76 (prosecutor committed misconduct during argument by arguing

erroneous definitions of second degree murder);

Claim No. 77 (prosecutor committed misconduct during argument by arguing

theories of murder prohibited by double jeopardy);

Claim No. 78 (prosecutor committed misconduct during argument by shifting

burden of proof onto petitioner, except to the extent this claim alleges impermissible

comment on petitioner‘s failure to testify);

Claim No. 79 (prosecutor committed misconduct during argument by making a

fleeting comment on retrial);

Claim No. 83 (prosecutor committed misconduct during penalty phase

argument by arguing theories of murder prohibited by double jeopardy);

Claim No. 84 (prosecutor committed misconduct during penalty phase

argument by repeating petitioner‘s stated wish that he wanted the death penalty);

Claim No. 101 (trial court failed to inquire into a possible conflict);

Claim No. 116 (trial court was biased during pretrial jury selection,

rehabilitating death-leaning jurors while summarily dismissing life-leaning jurors,

resulting in a jury biased in favor of the death penalty);

69

subject to the Dixon rule. In that claim, petitioner contends the trial court erred by

failing to order the sheriff to transport him to court proceedings separately from other

inmates who might be potential jailhouse snitches of questionable veracity.

Apparently concerned that Anthony Cornejo, a fellow jail inmate, would testify he

had overheard statements petitioner allegedly made while the two were together in a

sheriff‘s van being transported to the courthouse (see Memro II, supra, 11 Cal.4th at

Claim No. 117 (trial court improperly informed the jury there had been a

previous trial);

Claim No. 124 (failure to preserve a complete appellate record);

Claim No. 125 (this court failed to provide a meaningful appeal, committing

numerous legal and factual errors in deciding the appeal).

In addition, we have determined presentation of the following claims are also

precluded by the Dixon rule:

Claim No. 50 (trial court‘s failure to instruct on shackling);

Claim No. 51 (instructing the jury sua sponte to presume petitioner‘s

confession was voluntary);

Claim No. 52 (instructing the jury to presume petitioner‘s confession was

voluntary improperly vouched for a prosecution witness);

Claim No. 53 (failure to instruct that the Fowler murder could be second

degree at most);

Claim No. 54

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