In Re Robbins

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 I do not agree with everything stated in the majority opinion, which addresses certain questions concerning the timeliness requirement for habeas corpus claims, elaborates on the timeliness pleading requirements for presumptively untimely habeas corpus petitions, and applies those pleading requirements to one of the forty claims in this habeas corpus petition. The majority divides this single claim into four subclaims and, upon application of the newly articulated pleading requirements, concludes that three of the subclaims have been timely presented but the other subclaim is barred as untimely. I would hold that the claim as a whole has been timely presented, and I would state, as the majority does not, that this court will not apply the newly articulated timeliness pleading requirements to bar claims in this and other pending petitions without affording the petitioner an opportunity to cure the deficiencies by amendment.

The basic timeliness requirement for habeas corpus petitions, under which a court ordinarily will not grant relief to a habeas corpus petitioner who has unreasonably delayed the presentation of claims urged as grounds for attacking the validity of a final judgment of conviction, is well established and not disputed here. If a habeas corpus petition presents only a single claim, determining whether the petitioner has unreasonably delayed the presentation of that single claim is usually a rather simple matter. But the claims urged in a habeas corpus petition attacking a California death judgment are *818 seldom fewer than 10 and often more than 50, with many of the claims encompassing several subclaims and supported by facts that the petitioner or his counsel have discovered at various times. Determining the timeliness of each claim and subclaim in such a petition becomes extraordinarily complex, particularly in light of the tension between the timeliness requirement and the rule against piecemeal presentation of claims.

For some years, this court has labored to articulate a legal framework for making timeliness determinations in these multiclaim death penalty cases. The most important single step in this process was fixing a deadline, subject to certain exceptions, for the filing of habeas corpus petitions in death penalty cases. Petitions filed no more than 90 days after the final due date for the reply brief on the direct appeal receive a presumption of timeliness, whereas later filed petitions are deemed presumptively untimely. (Supreme Ct. Policies Regarding Cases Arising From Judgments of Death (Policies), policy 3, Standards governing filing of habeas corpus petitions and compensation of counsel in relation to such petitions, pt. 1, Timeliness standards, std. 1-1.1.) Another important step was defining what a petitioner would have to establish to avoid the bar of untimeliness as to claims urged in a presumptively untimely petition. This court has explained that the petitioner must establish either that the claim was presented without substantial delay, that the delay in presenting the claim was justified, or that the claim falls within one of the narrow exceptions to the timeliness requirement. (In re Clark (1993) 5 Cal.4th 750, 782-798 [ 21 Cal.Rptr.2d 509 , 855 P.2d 729 ] (Clark).)

Although this basic legal framework for making the timeliness determination was fixed through the Policies and through this court’s decisions in Clark, supra, 5 Cal.4th 750 , and other cases, some points remained unclear. It was precisely to clarify those points that this court took the unusual step of issuing orders to show cause in this case and its companion (In re Gallego (1998) 18 Cal.4th 825 [ 77 Cal.Rptr.2d 132 , 959 P.2d 290 ]) addressed solely to questions of timeliness.

The majority clarifies that a habeas corpus petitioner who contends that a claim has been presented without substantial delay “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.” (Maj. opn., ante, at p. 780, original italics.) To establish absence of substantial delay, the majority requires that presumptively untimely habeas corpus petitions contain these very specific discovery allegations not only as to each claim but also as to each subclaim. (Maj. opn., ante, at p. 799, fn. 21 [“each claim and subclaim” (original italics)]; id. at p. 805 [“claim or subclaim”].) The majority also clarifies that *819 a habeas corpus petitioner who contends that there is good cause for substantially delayed presentation of a claim or subclaim must allege separately and specifically, as to each claim and subclaim, each legal theory relied upon to establish good cause for delay. (Id. at pp. 806-807, fn. 29.) And the majority states that if a habeas corpus petitioner delays presentation of some fully developed claims pending investigation of other potential but not fully developed claims as to which the petitioner has triggering facts, the petitioner must allege that he was conducting an ongoing bona fide investigation of those potential but undeveloped claims throughout the period of delay. 1 (Id. at p. 806, fn. 28.)

I do not disagree with the pleading requirements that the majority articulates, even though Justice Brown makes a strong argument, in her concurring and dissenting opinion, that in these multiclaim death penalty cases the complexities of the timeliness determination are such that the burdens of applying the untimeliness bar far outweigh the resulting benefits. 2 But I would acknowledge, as the majority does not, that these newly clarified timeliness pleading requirements will not be applied to bar claims or subclaims in petitions pending in this court without affording the petitioner an opportunity to amend the petition, whenever possible, to cure the deficiencies.

It has long been established that a habeas corpus petitioner has the burden of “explaining any delay” in the presentation of a claim (In re Bower (1985) 38 Cal.3d 865, 872 [ 215 Cal.Rptr. 267 , 700 P.2d 1269 ]) and must “ ‘fully disclose’ ” the reasons for the delay (In re Walker (1974) 10 Cal.3d 764, 774 [ 112 Cal.Rptr. 177 , 518 P.2d 1129 ], quoting In re Wells (1967) 67 Cal.2d 873, 875 [ 64 Cal.Rptr. 317 , 434 P.2d 613 ]). But our earlier decisions have never expressly required that the petitioner provide this explanation and make this disclosure separately as to each subclaim in a multiclaim petition, that the petition allege with specificity a legal theory of good cause for delay as to each subclaim, or that good cause for delayed presentation of developed claims will invariably require an ongoing bona fide investigation of undeveloped claims. Death penalty habeas corpus petitioners, and the counsel who represent them, had no notice of these previously unarticulated requirements. Indeed, had all these requirements been well and clearly established, there would have been no reason to issue the order to show cause in this case.

*820 The majority applies the newly clarified timeliness pleading requirements to determine whether Claim I, which is but one of the petition’s forty claims, is barred as untimely. The majority concludes that Claim I consists of four subclaims, that petitioner has established by specific allegations that three of these subclaims have been presented without substantial delay and thus are not barred as untimely, and that the fourth subclaim is barred as untimely because petitioner has failed to establish either the absence of substantial delay, good cause for delay, or an exception to the timeliness bar.

It is important to note that the majority, not petitioner, has divided Claim I into four subclaims. In the petition, Claim I is stated in 25 numbered sections, some with subsections. The title of Claim I states its legal theory: “The Prosecutor Introduced and Presented False Evidence Throughout the Guilt and Penalty Phases of Petitioner’s State Court Trial Directly Affecting the Trial Outcome, Rendering the Results of the Trial Completely Unreliable and Fundamentally Unfair in Violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and Article I, Sections 1, 7, 15, 16, 17, 24 and 27 of the California Constitution.” Each of the 25 sections of the claim contains allegations in support of this false evidence theory, and the petition seeks relief based on all allegations in all sections of the claim.

The majority does not conclude that the various allegations that form the basis of Claim I have been improperly grouped together, either in the sense that they have no factual or legal relationship to each other, or in the sense that parts of them would independently warrant relief. Indeed, the decision to deny Claim I on the merits necessarily implies a determination that these facts, whether considered separately or together, do not state a prima facie case for relief. The majority makes this determination expressly as to the Holmes subclaim. (Maj. opn., ante, at pp. 810, 811, 812.) Thus, I do not understand the majority to hold that petitioner was mistaken in treating the Holmes allegations as part of a larger claim rather than as a separate and independent claim. In holding that the Holmes subclaim is barred as untimely, therefore, the majority of necessity relies on the newly articulated requirement that presumptively untimely petitions contain detailed time-of-discovery allegations not only as to claims, but also as to subclaims and parts of claims.

The majority appears to concede that a habeas corpus petitioner has no obligation to promptly present a subclaim that, by itself, fails to state a prima facie case for relief. The obligation to present without undue delay applies only to developed claims—that is, claims that state a prima facie claim for relief. A subclaim that fails to meet this threshold need not be presented unless and until the petitioner discovers and develops other subclaims that, *821 in habeas corpus counsel’s judgment, may be combined with the previously known subclaim to state a prima facie case for relief. The majority declines to consider this justification for the delayed presentation of the Holmes subclaim only because, in the majority’s judgment, petitioner has not clearly articulated it. (Maj. opn., ante, at pp. 806-807, fn. 29.)

The majority’s approach is overly technical. “[I]n the administration of justice pleadings are a means to an end, not an end in themselves . . . .” (Swanson v. Hempstead (1944) 64 Cal.App.2d 681, 682-683 [ 149 P.2d 404 ]-683.) By definition, a subclaim is something less than or inferior to a claim, or a mere part of a claim. By pleading as a single claim what the majority chooses to view as four subclaims, petitioner has impliedly but clearly taken the position that these allegations are interrelated and interdependent. It is hardly surprising that petitioner, through counsel, does not expressly assert that each and every component allegation is essential to the claim for relief, an assertion that would be used against petitioner to justify denial of the entire claim if any single allegation was found to be factually unsupported or otherwise defective. Nor is it surprising that petitioner, through counsel, has not protested this court’s division of Claim I into four subclaims, because counsel could not anticipate the legal consequences of this partition. What is important is that this court finds that the Holmes subclaim by itself does not state a prima facie claim for relief because, even assuming the Holmes evidence was false, its presentation did not affect the verdict in view of the other evidence demonstrating petitioner’s guilt of the Texas murder of Steven Little. (Maj. opn., ante, at pp. 810, 811, 812 [“Holmes’s testimony was tangential to the ultimate question of petitioner’s guilt of the Texas killing . . . .”].) If, as the majority concludes (and I agree), the Holmes subclaim by itself did not establish prejudice sufficient to warrant relief, petitioner was under no obligation to present this subclaim until it could be combined with other false evidence subclaims relating to the same Texas murder. Because the petition does combine the Holmes subclaim with other such subclaims, and because those other subclaims have been presented without substantial delay (maj. opn., ante, at pp. 795, 799, 803), I would hold that Claim I is not barred as untimely.

This newly articulated ongoing-investigation requirement is the subject of my separate opinion in the companion case of In re Gallego, supra, 18 Cal.4th at pages 825, 840-842 (cone, and dis. opn. of Kennard, J.).

One may begin to appreciate the extent of this burden by noting the length of the majority opinion, which addresses the timeliness of just one of forty claims presented in just one habeas corpus petition.