explaining that when the State argues that a procedural bar applies, and the California Supreme Court’s order does not cite a case imposing that bar, it means the claim is not barred on the asserted ground
How later courts described this case
- explaining that when the State argues that a procedural bar applies, and the California Supreme Court’s order does not cite a case imposing that bar, it means the claim is not barred on the asserted ground
- explaining that claims filed more than 90 days after the filing of the reply brief in direct appeal in capital cases are presumptively untimely
- clarifying that Clark’s successive bar is independent of federal law
- in order to avoid the bar of untimeliness, petitioner has the burden of establishing either: (1) absence of substantial delay; (2) good cause for the delay; or (3) that his claims fall within an exception to the bar of untimeliness (citing Clark)
Written by the judges who cited it.
The opinion
BROWN, J., Concurring and Dissenting.
For the reasons set forth in my concurring and dissenting opinion in In re Gallego (1998) 18 Cal.4th 825, 842-853 [ 77 Cal.Rptr.2d 132 , 959 P.2d 290 ] (cone, and dis. opn. of Brown, J.), I concur only in the discharge of the order to show cause. I express no opinion on the merits of the substantive discussion regarding habeas pleading requirements but decline to endorse it.
Petitioner’s application for a rehearing was denied September 23, 1998. Kennard, J., was of the opinion that the application should be granted.
*822 APPENDIX
S048929
IN THE SUPREME COURT OF CALIFORNIA
IN RE MALCOLM J. ROBBINS ON HABEAS CORPUS
Petition for writ of habeas corpus denied.
Claim A is denied on the merits. In addition, it is barred as untimely under In re Robbins [(1998) 18 Cal.4th 770 ] (Robbins), and In re Clark (1993) 5 Cal.4th 750 [ 21 Cal.Rptr.2d 509 , 855 P.2d 729 ] (Clark).
Claims B, C, and D are denied on the merits. To the extent they are based solely on the record, they should have been raised on appeal and are barred under In re Dixon (1953) 41 Cal.2d 756, 759 [ 264 P.2d 513 ] (Dixon). In addition, each claim is barred as untimely under Robbins, supra, and Clark, supra.
Claims E and F are denied on the merits. To the extent claim F is based on the appellate record, it is barred under In re Waltreus (1965) 62 Cal.2d 218, 225 [ 42 Cal.Rptr. 9 , 397 P.2d 1001 ] (Waltreus). In addition, claim F is barred as untimely under Robbins, supra, and Clark, supra.
Claim G is denied on the merits and barred under Dixon, supra. In addition, it is barred as untimely under Robbins, supra, and Clark, supra.
Claim H is denied on the merits. Paragraph 2 thereof is barred under Dixon, supra, and paragraph 4 thereof is barred as waived under People v. Green (1980) 27 Cal.3d 1, 27-34 [ 164 Cal.Rptr. 1 , 609 P.2d 468 ], and barred under Dixon, supra. In addition, the claim is barred as untimely under Robbins, supra, and Clark, supra.
The four subclaims advanced in Claim I (pars. 7-12, the Foster subclaim; pars. 13-14, the Fitzgerald/Halliday subclaim; pars. 15-18, the Holmes sub-claim; and pars. 20-22, the Garton subclaim) are each denied on the merits. In addition, the Holmes subclaim is barred as untimely under Robbins, supra, and Clark, supra.
Claim J is denied on the merits. In addition, the claim is barred as untimely under Robbins, supra, and Clark, supra.
*823 Claims K, L, M, N, and O are denied on the merits and are barred under Dixon, supra. In addition, each claim is barred as untimely under Robbins, supra, and Clark, supra.
Claim P is denied on the merits. Paragraph 2 thereof is barred under Waltreus, supra, and paragraphs 3, 4, and 5 thereof are barred under Dixon, supra. In addition, the entire claim is barred as untimely under Robbins, supra, and Clark, supra.
Claim Q is denied on the merits and barred under Dixon, supra. In addition, it is barred as untimely under Robbins, supra, and Clark, supra.
Claim R is denied on the merits. It also is barred under Waltreus, supra, and, to the extent it is based on constitutional theories not previously raised and rejected on appeal, it is barred under Dixon, supra. In addition, it is barred as untimely under Robbins, supra, and Clark, supra.
Claim S is denied on the merits and barred under Dixon, supra. In addition, it is barred as untimely under Robbins, supra, and Clark, supra.
Claim T is denied on the merits, and paragraph 2 thereof is barred under Dixon, supra. In addition, the claim is barred as untimely under Robbins, supra, and Clark, supra.
Claim U is denied on the merits. In addition, the claim is barred as untimely under Robbins, supra, and Clark, supra.
Claims V and W are denied on the merits and barred under Dixon, supra. In addition, each claim is barred as untimely under Robbins, supra, and Clark, supra.
Claim X is denied on the merits, and to the extent it is based solely on the record, it is barred under Dixon, supra. In addition, the claim is barred as untimely under Robbins, supra, and Clark, supra.
Claims Y and Z are denied on the merits and barred under Dixon, supra. In addition, each claim is barred as untimely under Robbins, supra, and Clark, supra.
Claims AA, AB, AC, AD, AE, AF, AG, and AH are denied on the merits, and to the extent they are based solely on the record, they are barred under Dixon, supra. In addition, each claim is barred as untimely under Robbins, supra, and Clark, supra.
*824 Claim AI is denied on the merits. To the extent this claim or any of its subparts was raised and rejected on appeal, it is barred under Waltreus, supra; to the extent this claim or any of its subparts was not raised on appeal, it is barred under Dixon, supra. In addition, the claim is barred as untimely under Robbins, supra, and Clark, supra.
Claim AJ is denied on the merits and, to the extent it is based solely on the record, it is barred under Dixon, supra. In addition, the claim is barred as untimely under Robbins, supra, and Clark, supra.
Claim AK is denied on the merits.
Claim AL is denied on the merits. To the extent this claim is premised on claims raised and rejected on appeal, it is barred by Waltreus, supra. To the extent this claim is premised on claims that should have been, but were not, presented on appeal, it is barred under Dixon, supra. In addition, the claim is barred as untimely under Robbins, supra, and Clark, supra.
Claim AM is denied on the merits. In addition, it is barred as untimely under Robbins, supra, and Clark, supra.
Claim AN is denied on the merits. To the extent paragraph 9 thereof is based on the appellate record, it also is barred under Dixon, supra.
Insofar as any claim asserts ineffective assistance of immediately preceding appellate and habeas corpus counsel, it is denied solely on the merits. (Robbins, supra, at p. 815, fn. 35 .)
Mosk, J., and Brown, J., would deny the petition solely on the merits.