observing 6 that “if . . . counsel in this case found himself overextended, he should have sought help by 7 associating other counsel to assist him in complying with his legal obligations or filed a motion to 8 withdraw as attorney of record.”
How later courts described this case
- observing 6 that “if . . . counsel in this case found himself overextended, he should have sought help by 7 associating other counsel to assist him in complying with his legal obligations or filed a motion to 8 withdraw as attorney of record.”
- explaining that California will “excuse delay” for “a litigant mounting a collateral challenge to a final criminal judgment” “on a showing of good cause”
- explaining that appointment of habeas counsel to represent indigent capital defendants “promote[s] the cause of justice”
- considering abandonment by counsel as good cause for delayed presentation of habeas corpus claims and equating abandonment by counsel with a complete lack of representation
Written by the judges who cited it.
The opinion
MOSK, J.
I concur in the result.
In this proceeding, the court considers yet again a petition for writ of habeas corpus by a condemned prisoner and the machinery of “procedural bars” against the granting of relief that decisions such as In re Clark (1993) 5 Cal.4th 750 [ 21 Cal.Rptr.2d 509 , 855 P.2d 729 ] have fabricated. More accurately, it does not examine the substance of the petition itself. Instead, it addresses, at length and in detail, a single procedural bar, namely, “untimeliness,” with its incorporated notions of “substantial delay” and “good cause.” In the end, in discharging the order to show cause, it refuses to dismiss the petition as untimely in favor of determining its claims on the merits. In that refusal I join, fully and without reservation.
Beyond noting my concurrence in the result, I write separately to express my agreement that, on the assumption that Clark s machinery of procedural bars against relief on habeas corpus operates both appropriately and efficiently, former counsel’s abandonment of a petitioner without submitting a petition on his behalf may, and here does, constitute “good cause” for any “substantial delay” by successor counsel in eventually submitting just such a petition. Indeed, Clark itself compels this conclusion. It states: “If . . . *725 counsel failed to afford adequate representation in a prior habeas corpus application, that failure may be offered in explanation and justification of the need to file another petition.” (In re Clark, supra, 5 Cal.4th at p. 780 .) A fortiori, if former counsel failed to afford any representation and hence failed to submit any petition, that failure may be offered in explanation .and justification of the need for successor counsel to submit an initial petition after even substantial delay.
I also write separately, however, to state, yet again, that Clark’s machinery of procedural bars against relief on habeas corpus does not in fact operate either appropriately or efficiently.
To be sure, the “writ of habeas corpus ‘ “was not created for the purpose of defeating or embarrassing justice, but to promote it[,]” ’ ” especially when the challenged confinement is pursuant to a judgment of death. (In re Robbins (1998) 18 Cal.4th 770, 816 [ 77 Cal.Rptr.2d 153 , 959 P.2d 311 ] (conc. opn. of Mosk, J.).)
But the “only path that would guarantee the attainment of justice in such a situation” is “the ‘examin[ation]’ of ‘each’ habeas corpus ‘petition on its own facts’ in order to determine whether the petitioner has alleged specific facts that would entitle him to relief.” (In re Robbins, supra, 18 Cal.4th at p. 816 (conc. opn. of Mosk, J.).)
True, the “ ‘scrutiny’ of the merits” that examination of this sort entails “ ‘requires the expense of considerable judicial resources . . . .’” (In re Robbins, supra, 18 Cal.4th at p. 816 (conc. opn. of Mosk, J.).)
But such “[s]crutiny . . . requires much less than does the effort to invoke each and every procedural bar. Or even the effort to invoke any one such bar.” (In re Robbins, supra, 18 Cal.4th at p. 816 (conc. opn. of Mosk, J.).) For proof, the reader need only consider two facts reflected herein. One is the “many pages” that the court has had to “devote to the single procedural bar of untimeliness . . . .” (Ibid., italics omitted.) The other is the substantial time that it has had to take to resolve the single underlying issue—the petition having been filed more than four and one-half years ago and the order to show cause having issued more than three years ago. I cannot fault any of my colleagues, all of whom I believe have proceeded diligently and properly. Rather, I must blame the procedural bar of untimeliness itself. It is “ ‘indeterminate at [its] very core.’ ” (Id. at p. 817, fn. 3 (conc. opn. of Mosk, J.).) As such, “its application to any given claim [or any given petition] may yield varying results, as reasonable persons differ as to whether the claim [or petition] in question has been presented without ‘substantial delay’ and, if *726 not, whether ‘good cause’ exists for any such delay. But, worse yet, its very meaning is vague, as such persons attempt to discern the sense of ‘substantial delay’ and ‘good cause.’ ” (Ibid.) The result, in spite of the best and most honest efforts, is, and will continue to be, arbitrary and capricious decision-making and arbitrary and capricious decisions.
“Because principle and pragmatism show themselves in rare conjunction in this proceeding, as in all others in which” the challenged confinement is pursuant to a judgment of death (In re Robbins, supra, 18 Cal.4th at p. 817 (conc. opn. of Mosk, J.)), I join the court in discharging the order to show cause, and in refusing to dismiss the petition as untimely in favor of determining its claims on the merits.