referring to California’s standards as "applied as a matter of discretion without regularity,” "impossibly amorphous,” "nebulous as well as riddled with exceptions”; concluding that "such imprecise, circular, and tautological language does not define a 'clear' rule this court can 'consistently apply'____Nor does it even provide guidance.”
How later courts described this case
- referring to California’s standards as "applied as a matter of discretion without regularity,” "impossibly amorphous,” "nebulous as well as riddled with exceptions”; concluding that "such imprecise, circular, and tautological language does not define a 'clear' rule this court can 'consistently apply'____Nor does it even provide guidance.”
- recounting the procedural history of the case and noting that, after the federal district court denied the Attorney General's motion to dismiss petitioner's unexhausted claims, petitioner "file[d] in this court [the California Supreme Court] a petition for writ of habeas corpus to exhaust those claims"
- reviewing petitioner's thirty-five habeas claims in the first instance and rejecting all of them on the merits
- conc. & dis. opn. of Brown, J.
Written by the judges who cited it.
Distinguished
Distinguished by In Re Sanders, 87 Cal. Rptr. 2d 899 (1999)
) Gallego, then, is inapposite.
The opinion
KENNARD, J., Concurring and Dissenting.
I concur in the discharge of the order to show cause and in the denial of the petition for a writ of habeas corpus. But, as in the companion case of In re Robbins (1998) 18 Cal.4th 770 [ 77 Cal.Rptr.2d 153 , 959 P.2d 311 ] {Robbins), I do not agree with everything stated in the majority opinion, which addresses certain questions concerning the timeliness requirement for habeas corpus claims, and in particular the significance of this court’s denial of a confidential request by appointed counsel for authorization to incur expenses to investigate potential habeas corpus claims.
The majority states that if petitioner or petitioner’s counsel knows of claims that may state a prima facie case for relief, counsel should promptly submit a habeas corpus petition presenting those claims (which the majority refers to variously as “known,” “completed,” “developed,” or “perfected”) unless there is an “ongoing bona fide investigation into other potentially meritorious claims.” (Maj. opn., ante, at p. 834.) In a footnote, the majority states that if appointed counsel’s habeas, corpus investigation of potential claims reaches an impasse because this court has denied funding for further investigation, counsel must then present any known claims. (Maj. opn., ante, at p. 838, fn. 13.) Put another way, counsel may not delay presentation of known claims unless counsel is actually engaged in an ongoing investigation of potential claims, and if our denial of investigation funds means that counsel may not immediately proceed with investigation, then any known claim must be promptly presented to this court. {Ibid.) In the companion case, Robbins , the majority appears to assert that this court stated or implied the substance of this ongoing-investigation rule in In re Clark (1993) 5 Cal.4th 750 [ 21 Cal.Rptr.2d 509 , 855 P.2d 729 ] {Clark). { Robbins, supra, 18 Cal.4th at pp. 806-807, fn. 28.)
*841 I do not agree that this court’s decision in Clark, supra, 5 Cal.4th 750 , afforded adequate notice of the substance of the majority’s ongoing-investigation rule. Also, as stated by the majority, the ongoing-investigation rule is overly precise and rigid. Because the rule has not been previously announced, this court should not apply it to pending habeas corpus petitions without giving petitioners and their counsel an opportunity to amend their petitions, if they can, to cure the deficiencies. I will explain each of these points in turn.
In Clark , this court stated: “If the petition is delayed because the petitioner is not able to state a prima facie case for relief on all of the bases believed to exist, the delay in seeking habeas corpus relief may be justified when the petition is ultimately filed if the petitioner can demonstrate that (1) he had good reason to believe other meritorious claims existed, and (2) the existence of facts supporting those claims could not with due diligence have been confirmed at an earlier time” { Clark, supra, 5 Cal.4th 750, 781 , fn. omitted, italics added.) To the same effect, this court said: “When the factual basis for a claim is already known, the claim must be presented promptly unless facts known to counsel suggest the existence of other potentially meritorious claims which cannot be stated without additional investigation.” {Id. at p. 784, italics added.) In a footnote, this court added these observations: “The delay will not be deemed justified, however, unless the petitioner demonstrates that there was good reason to believe that further investigation would lead to facts supportive of a clearly meritorious claim. Nor will the delay be deemed justified if, notwithstanding the existence of substantial, potentially meritorious claims, the petitioner delays filing the petition in order to investigate potential claims of questionable merit.” {Id. at p. 781, fn. 17.)
Nowhere in Clark, supra, 5 Cal.4th 750 , did this court specify that knowledge of the existence of potentially meritorious but unperfected claims would constitute good cause for delay in the presentation of perfected claims only if the petitioner or habeas corpus counsel was engaged in an ongoing bona fide investigation of the potentially meritorious but unperfected claims throughout the period of delay. The cited Clark text and footnote imply, at most, that substantial delay in the presentation of known claims is justified only if it is for the purpose of investigation and that a petitioner must at all stages proceed with “due diligence”; Clark does not state or imply that investigation must be ongoing throughout the period of delay.
The ongoing-investigation rule as stated by the majority is overly precise and rigid because habeas corpus petitioners and their counsel, after this court’s denial of a confidential request for investigation funds, may proceed with due diligence, for the purpose of investigating potentially meritorious *842 claims, even though they are then unable to commence or proceed with the investigation. For example, counsel may proceed with diligence to obtain funding for the investigation from alternative sources. Funds may be obtainable from the petitioner’s relatives, from private organizations, or from the federal courts. Here, for example, petitioner proceeded to federal court where his counsel applied for and received substantial funding with which the investigation of potential claims was undertaken and completed. (Maj. opn., ante, at pp. 830-831.) A reasonable delay occasioned by a diligent search for alternative funds from individuals or from public or private entities that petitioner and counsel reasonably anticipate will provide such funds is, in my view, good cause for substantial delay in the presentation of previously known claims. To the extent the majority decides otherwise, I disagree.
Finally, to the extent that the majority has narrowed the diligence requirement articulated in Clark, supra, 5 Cal.4th 750 , which required only that the delay be for the purpose of investigátion (and not that the petitioner be actually engaged in an ongoing investigation throughout the period of delay), and that the petitioners and their counsel at all times proceed with “due diligence,” the requirement may not in fairness be applied retroactively to bar habeas corpus claims as untimely. To the extent the majority decides otherwise, I disagree.