In re Friend ( 2021 )

IN THE SUPREME COURT OF
CALIFORNIA
In re JACK WAYNE FRIEND
on Habeas Corpus.
S256914
First Appellate District, Division Three
A155955
Alameda County Superior Court
81254A
__________________________________________________________
June 28, 2021
Justice Kruger authored the opinion of the Court, in which
Chief Justice Cantil-Sakauye and Justices Corrigan, Liu,
Cuéllar, Groban, and Jenkins concurred.
__________________________________________________________
In re FRIEND
S256914
Opinion of the Court by Kruger, J.
Proposition 66, the Death Penalty Reform and Savings Act
of 2016 (as approved by voters, Gen. Elec. (Nov. 8, 2016) § 1),
made wide-ranging changes to the procedures for challenging
convictions and sentences in capital cases. Among other things,
Proposition 66 introduced new restrictions on the presentation
of habeas corpus claims in what the measure refers to as
“successive” petitions: Individuals who file successive petitions
must show they are actually innocent or ineligible for the death
penalty before courts may consider the merits of their claims.
(Pen. Code, §§ 1509, 1509.1.) The question before us concerns
the scope of these restrictions on successive petitions. Do the
restrictions apply to all claims raised in a second or subsequent
habeas petition, including claims based on newly available
evidence and newly decided case law? Or do the restrictions
apply only to those claims that were or could have been raised
in an earlier petition?
We answer this question by reference to background
principles of habeas corpus law. The traditional rules governing
the handling of successive petitions have long distinguished
between the presentation of newly available claims and the
presentation of claims that could have been raised earlier; the
law has traditionally limited only the latter, forbidding
consideration of repetitive or pretermitted claims except in a
few, narrowly defined circumstances. Proposition 66 modified
these rules by further narrowing the circumstances under which
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Opinion of the Court by Kruger, J.
courts may consider repetitive or pretermitted claims in capital
cases. But properly understood, Proposition 66’s successiveness
restrictions do not limit the consideration of claims that could
not reasonably have been raised earlier, such as those based on
newly available evidence or on recent changes in the law —
claims that have not previously been thought subject to
successiveness limitations. Thus, under the law as amended by
Proposition 66, habeas corpus petitioners must make a showing
of actual innocence or death ineligibility if they seek a second
chance to make an argument they could have made earlier. No
such requirement applies to the habeas petitioner who raises a
newly available claim at the first opportunity.
I.
Petitioner Jack Wayne Friend was convicted of the 1984
robbery murder of Oakland bartender Herbert Pierucci and
sentenced to death. On automatic appeal, we affirmed the
capital convictions and sentence. (People v. Friend (2009) 47
Cal.4th 1, 10.) Friend filed a habeas corpus petition in this
court, which we denied in 2015. Friend then filed a federal
habeas petition in the United States District Court for the
Northern District of California. In 2017, the federal court
stayed proceedings to allow Friend to exhaust six claims in state
court. The following year, Friend filed a second state habeas
petition raising the six unexhausted claims in Alameda County
Superior Court.1
1
As identified in Friend’s present habeas petition, the six
unexhausted claims concern: 1. Discriminatory use of
peremptory challenges by the prosecutor; 2. Ineffective
assistance of trial counsel in jury selection and investigation of
2
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Opinion of the Court by Kruger, J.
In the meantime, before Friend filed his second state court
petition, Proposition 66 came into force; the measure took effect
in October 2017, after this court considered and decided a
number of facial challenges to its constitutionality. (See Briggs
v. Brown (2017) 3 Cal.5th 808, 862 (Briggs).) Applying Penal
Code section 1509, subdivision (d), a provision newly added by
Proposition 66, the Alameda County Superior Court dismissed
Friend’s recently filed habeas petition as successive. It further
denied Friend’s request for a certificate of appealability under
newly added Penal Code section 1509.1, subdivision (c). Friend
then filed a notice of appeal and requested a certificate of
appealability from the Court of Appeal. That court denied
Friend’s request for a certificate and marked the notice of appeal
inoperative. (See Cal. Rules of Court, rule 8.392(b)(7).)
We granted Friend’s petition for review, specifying three
issues for briefing: the meaning of the term “successive” in
Penal Code sections 1509 and 1509.1, the propriety of applying
the provisions’ limits on successive petitions when the litigant’s
first petition was filed before Proposition 66 took effect, and the
appealability of a dismissal for successiveness under Penal Code
sections 1509 and 1509.1.
evidence for trial; 3. Unconstitutionality of imposing the death
penalty due to petitioner’s organic brain damage; 4. Denial of
due process in the participation of Justices Chin and Corrigan
in prior proceedings in this court; 5. Introduction of statements
taken by police in violation of Miranda v. Arizona (1966) 384
U.S. 436; and 6. Ineffective assistance of appellate counsel in
failing to raise the Miranda claim on direct appeal.
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Opinion of the Court by Kruger, J.
II.
A.
Proposition 66 enacted a number of statutory reforms in
an effort to make the system of capital punishment “more
efficient, less expensive, and more responsive to the rights of
victims.” (Briggs, supra, 3 Cal.5th at p. 831.) Among these
reforms were various changes to the procedures for handling
and resolving habeas corpus petitions in capital cases. (Id. at
pp. 823–825.) The bulk of these changes are found in newly
added Penal Code section 1509.2 The most prominent change is
2
Penal Code section 1509 provides in full:
“(a) This section applies to any petition for writ of habeas
corpus filed by a person in custody pursuant to a judgment of
death. A writ of habeas corpus pursuant to this section is the
exclusive procedure for collateral attack on a judgment of death.
A petition filed in any court other than the court which imposed
the sentence should be promptly transferred to that court unless
good cause is shown for the petition to be heard by another court.
A petition filed in or transferred to the court which imposed the
sentence shall be assigned to the original trial judge unless that
judge is unavailable or there is other good cause to assign the
case to a different judge.
“(b) After the entry of a judgment of death in the trial
court, that court shall offer counsel to the prisoner as provided
in Section 68662 of the Government Code.
“(c) Except as provided in subdivisions (d) and (g), the
initial petition must be filed within one year of the order entered
under Section 68662 of the Government Code.
“(d) An initial petition which is untimely under
subdivision (c) or a successive petition whenever filed shall be
dismissed unless the court finds, by the preponderance of all
available evidence, whether or not admissible at trial, that the
defendant is actually innocent of the crime of which he or she
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Opinion of the Court by Kruger, J.
was convicted or is ineligible for the sentence. A stay of
execution shall not be granted for the purpose of considering a
successive or untimely petition unless the court finds that the
petitioner has a substantial claim of actual innocence or
ineligibility. ‘Ineligible for the sentence of death’ means that
circumstances exist placing that sentence outside the range of
the sentencer’s discretion. Claims of ineligibility include a claim
that none of the special circumstances in subdivision (a) of
Section 190.2 is true, a claim that the defendant was under the
age of 18 at the time of the crime, or a claim that the defendant
has an intellectual disability, as defined in Section 1376. A
claim relating to the sentencing decision under Section 190.3 is
not a claim of actual innocence or ineligibility for the purpose of
this section.
“(e) A petitioner claiming innocence or ineligibility under
subdivision (d) shall disclose all material information relating to
guilt or eligibility in the possession of the petitioner or present
or former counsel for petitioner. If the petitioner willfully fails
to make the disclosure required by this subdivision and
authorize disclosure by counsel, the petition may be dismissed.
“(f) Proceedings under this section shall be conducted as
expeditiously as possible, consistent with a fair adjudication.
The superior court shall resolve the initial petition within one
year of filing unless the court finds that a delay is necessary to
resolve a substantial claim of actual innocence, but in no
instance shall the court take longer than two years to resolve
the petition. On decision of an initial petition, the court shall
issue a statement of decision explaining the factual and legal
basis for its decision.
“(g) If a habeas corpus petition is pending on the effective
date of this section, the court may transfer the petition to the
court which imposed the sentence. In a case where a judgment
of death was imposed prior to the effective date of this section,
but no habeas corpus petition has been filed prior to the effective
date of this section, a petition that would otherwise be barred by
subdivision (c) may be filed within one year of the effective date
of this section or within the time allowed under prior law,
whichever is earlier.”
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Opinion of the Court by Kruger, J.
a new one-year deadline for filing an “initial” habeas petition
after the appointment of counsel (Pen. Code, § 1509, subd. (c));
this represents a departure from traditional habeas law in
capital as well as noncapital cases, which ordinarily considers
the timeliness of habeas petitions without imposing “fixed,
determinate deadlines.” (Robinson v. Lewis (2020) 9 Cal.5th
883, 890; see In re Robbins (1998) 18 Cal.4th 770, 780 (Robbins)
[outlining pre-Proposition 66 timeliness rules for capital
habeas].) But Proposition 66 changes habeas procedure in other
ways as well. Whereas the approved practice was for all capital
habeas petitioners to file directly in this court, section 1509 now
calls for most capital petitions to be heard initially in the
sentencing court. (Pen. Code, § 1509, subd. (a).) And whereas
the law generally requires unsuccessful habeas petitioners to
seek review by filing a new habeas petition in a higher court (see
Robinson, at p. 895), newly added Penal Code section 1509.1
requires capital petitioners to seek review by way of appeal
instead. (Pen. Code, § 1509.1, subd. (a).)3
3
Penal Code section 1509.1 provides in full:
“(a) Either party may appeal the decision of a superior
court on an initial petition under Section 1509 to the court of
appeal. An appeal shall be taken by filing a notice of appeal in
the superior court within 30 days of the court’s decision granting
or denying the habeas petition. A successive petition shall not
be used as a means of reviewing a denial of habeas relief.
“(b) The issues considered on an appeal under subdivision
(a) shall be limited to the claims raised in the superior court,
except that the court of appeal may also consider a claim of
ineffective assistance of trial counsel if the failure of habeas
counsel to present that claim to the superior court constituted
ineffective assistance. The court of appeal may, if additional
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Opinion of the Court by Kruger, J.
The provisions at issue in this case set out instructions for
handling successive petitions. Penal Code section 1509,
subdivision (d) (section 1509(d)), provides, as relevant here: “An
initial petition which is untimely under subdivision (c) or a
successive petition whenever filed shall be dismissed unless the
court finds, by the preponderance of all available evidence,
whether or not admissible at trial, that the defendant is actually
innocent of the crime of which he or she was convicted or is
ineligible for the sentence.” Penal Code section 1509.1 then
imposes a related procedural hurdle for litigants seeking to
appeal the denial of a successive petition. It provides that such
litigants “may appeal the decision of the superior court denying
findings of fact are required, make a limited remand to the
superior court to consider the claim.
“(c) The people may appeal the decision of the superior
court granting relief on a successive petition. The petitioner
may appeal the decision of the superior court denying relief on
a successive petition only if the superior court or the court of
appeal grants a certificate of appealability. A certificate of
appealability may issue under this subdivision only if the
petitioner has shown both a substantial claim for relief, which
shall be indicated in the certificate, and a substantial claim that
the requirements of subdivision (d) of Section 1509 have been
met. An appeal under this subdivision shall be taken by filing a
notice of appeal in the superior court within 30 days of the
court’s decision. The superior court shall grant or deny a
certificate of appealability concurrently with a decision denying
relief on the petition. The court of appeal shall grant or deny a
request for a certificate of appealability within 10 days of an
application for a certificate. The jurisdiction of the court of
appeal is limited to the claims identified in the certificate and
any additional claims added by the court of appeal within 60
days of the notice of appeal. An appeal under this subdivision
shall have priority over all other matters and be decided as
expeditiously as possible.”
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Opinion of the Court by Kruger, J.
relief on a successive petition only if the superior court or the
court of appeal grants a certificate of appealability.” (Pen. Code,
§ 1509.1, subd. (c) (section 1509.1(c)).) Section 1509.1(c) further
specifies that “[a] certificate of appealability may issue under
this subdivision only if the petitioner has shown both a
substantial claim for relief, which shall be indicated in the
certificate, and a substantial claim that the requirements of
subdivision (d) of Section 1509 have been met.” The overall
effect of these restrictions is to forbid courts from considering
successive petitions, or appeals from the denial of such petitions,
that are unaccompanied by a showing of innocence or
ineligibility for the death penalty.
To put this set of reforms in context, we briefly describe
the law as it existed before Proposition 66 (and as it continues
to exist in noncapital cases). Restrictions on the consideration
of successive habeas petitions are not new. Several decades ago,
California courts identified presentation of claims in a
“ ‘piecemeal [manner] by successive proceedings’ ” as an abuse
of the writ process. (In re Horowitz (1949) 33 Cal.2d 534, 547,
quoting In re Drew (1922) 188 Cal. 717, 722.) The solution was
the development of the so-called successiveness bar, a set of
limits that applied in all habeas cases before Proposition 66 and
that continues to apply to noncapital cases today. Like other
procedural bars developed in the case law, the successiveness
bar was “designed to ensure legitimate claims are pressed early
in the legal process.” (In re Reno (2012) 55 Cal.4th 428, 452
(Reno).) The bar therefore limits consideration of claims that
were unjustifiably omitted from earlier petitions. But
importantly, it does so “while leaving open a ‘safety valve’ for
those rare or unusual claims that could not reasonably have
been raised at an earlier time.” (Ibid.)
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Opinion of the Court by Kruger, J.
To determine whether the successiveness bar applies
under traditional habeas principles, a court conducts a two-step
analysis. (In re Clark (1993) 5 Cal.4th 750 (Clark).) First, the
court asks whether the habeas petitioner who files a second or
subsequent petition has adequately justified his or her failure to
present his or her claims in an earlier petition. (Id. at pp. 774–
775.) Adequate justifications include the inability to bring the
claim earlier, as where the claim depends on newly available
evidence or on a change in the law that has been made
retroactively applicable to final judgments. (Id. at p. 775.) In
the rare instance in which the petitioner is able to adequately
justify not having raised the claim earlier, the successiveness
bar does not apply. (Ibid.)
If there is no adequate justification for the petitioner’s
failure to raise the claim earlier, the court proceeds to the second
step of the analysis. At that step, the court must generally apply
the successiveness bar to preclude consideration of the claim.
But there is narrow exception for claims alleging “facts
demonstrating that a fundamental miscarriage of justice has
occurred.” (Clark, supra, 5 Cal.4th at p. 775.) In Clark, we
identified four situations in which the fundamental miscarriage
exception is satisfied: (1) a highly prejudicial error of
constitutional magnitude; (2) the petitioner’s actual innocence;
(3) presentation in a capital trial of a grossly misleading and
highly prejudicial profile of the petitioner; or (4) conviction or
sentencing under an invalid statute. (Id. at pp. 797–798; accord,
Reno, 55 Cal.4th at pp. 455–456, 472; Robbins, supra, 18 Cal.4th
at pp. 788, fn. 9, 811.) To determine whether a habeas petitioner
should be given a second chance to make a claim that could have
been made earlier, a court considers whether the petitioner has
made a showing that would bring the claim within this four-part
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Opinion of the Court by Kruger, J.
fundamental miscarriage exception. If so, the court proceeds to
consider the merits; if not, then not.
B.
The successiveness provisions of Proposition 66 changed
existing law by forbidding courts from considering successive
petitions that are unaccompanied by a showing of actual
innocence or ineligibility for the death penalty. This is a more
stringent standard than any standard applicable under
traditional habeas corpus law. The issue before us concerns the
scope of the change. A broad reading of Proposition 66 would
apply its stringent successiveness standard to all second or
subsequent capital habeas petitions, thereby eliminating the
traditional carveout for claims based on newly available
evidence and other claims that could not have been raised
earlier. A narrower, alternative reading of Proposition 66 would
apply this successiveness standard only to those petitions
raising repetitive or pretermitted claims — that is, those claims
that are generally subject to the traditional successiveness bar.
Under this narrower reading, Proposition 66 preserves the
traditional two-step inquiry described in case law, but at the
second step it replaces the four-part fundamental miscarriage of
justice exception with just two grounds — actual innocence or
death ineligibility — that will justify giving a habeas petitioner
a second chance to raise a claim that was unjustifiably omitted
from a prior petition.
On this question, the parties are in agreement; each
maintains that Proposition 66’s stringent successiveness
standard does not apply to claims that could not have been
raised in earlier petitions. Friend contends that this narrower
reading of Proposition 66 is not only consistent with the usual
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Opinion of the Court by Kruger, J.
use of the term “successive” in habeas corpus law, but also
avoids serious questions about the constitutionality of a law that
would bar potentially meritorious habeas claims that could not
have been raised in prior petitions. The Attorney General
concurs. He observes that though the term “successive” might
naturally be read in a colloquial sense to encompass all petitions
subsequent to the first, Friend’s narrower reading is the better
one because it avoids serious constitutional doubts.
By contrast, two amici curiae — the Criminal Justice
Legal Foundation (CJLF) and a group of legal scholars (the
Constitutional Law Amici) — argue that the term “successive”
in Proposition 66 should be broadly construed to refer to any
petition after the petitioner’s first.4 These amici divide, though,
on the constitutionality of sections 1509(d) and 1509.1(c) so
construed. The Constitutional Law Amici argue that insofar as
Proposition 66 eliminates the traditional safety valve for claims
that could not have reasonably been raised earlier, the measure
violates habeas petitioners’ federal and state due process rights,
as well as the California Constitution’s prohibition on
suspension of the writ of habeas corpus (Cal. Const., art I, § 11).
CJLF, by contrast, urges that Proposition 66’s limitations on
successive petitions, broadly construed, are “clearly
constitutional.”
When we interpret statutes, we usually begin by
considering the ordinary and usual meaning of the law’s terms,
viewing them in their context within the statute. (People v.
4
A third amicus curiae brief, filed on behalf of the Offices of
the Federal Public Defenders for the Central and Eastern
Districts of California, takes the same interpretive position as
the parties.
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Opinion of the Court by Kruger, J.
Colbert (2019) 6 Cal.5th 596, 603.) Here, as both the Attorney
General and amici curiae note, dictionaries define the term
“successive” to mean “[f]ollowing in uninterrupted order;
consecutive.” (American Heritage Dict. (4th ed. 2000) p. 1728.)
If this dictionary definition controls, then Proposition 66’s
restrictions on successive petitions would apply without
exception to any habeas petition that follows the initial habeas
petition.
When, however, a term has developed a particular
meaning in the law, we generally presume the legislative body
used the term in that sense rather than relying on ordinary
usage. “It is a well-recognized rule of construction that after the
courts have construed the meaning of any particular word, or
expression, and the legislature subsequently undertakes to use
these exact words in the same connection, the presumption is
almost irresistible that it used them in the precise and technical
sense which had been placed upon them by the courts.” (City of
Long Beach v. Payne (1935) 3 Cal.2d 184, 191; accord, In re
Derrick B. (2006) 39 Cal.4th 535, 540; People v. Lawrence (2000)
24 Cal.4th 219, 231 [principle applies to statutes adopted
through initiative]; see Pen. Code, § 7, subd. (16) [“Words and
phrases . . . as may have acquired a peculiar and appropriate
meaning in law, must be construed according to such peculiar
and appropriate meaning.”].)
As explained above, successiveness restrictions have a
long history in habeas corpus law, and the concept of
successiveness has acquired a particular meaning in that
context. We consider that legal background in discerning the
meaning of the restrictions on successive petitions in
Proposition 66. (Cf. Panetti v. Quarterman (2007) 551 U.S. 930,
943 [the term “second or successive” as used in a federal habeas
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Opinion of the Court by Kruger, J.
statute “is not self-defining,” but “takes its full meaning from
our case law” applying general habeas corpus principles].)
California habeas law traditionally has not imposed
blanket restrictions on the consideration of every petition filed
after an initial petition, as the dictionary definition of the term
“successive” might suggest. The traditional successiveness bar
instead prevents a habeas corpus petitioner from abusing the
writ process by presenting claims in a repetitive or piecemeal
manner. (Briggs, supra, 3 Cal.5th at p. 836, fn. 14.) This means
that a claim will not be barred as successive, even though it may
be presented in a second or subsequent habeas petition, if the
petitioner offers adequate justification for the failure to present
a particular claim in an earlier petition. (Clark, supra, 5 Cal.4th
at p. 774.) Though it is unusual for a petitioner to make the
required showing, we have said consideration of such a claim is
ordinarily warranted “where the factual basis for a claim was
unknown to the petitioner and he had no reason to believe that
the claim might be made” and the claim is “asserted as promptly
as reasonably possible.” (Id. at p. 775.) In addition, claims
based on a change in the law that is retroactively applicable to
final judgments will be considered if promptly asserted and if
application of the former rule is shown to have been prejudicial.
(Ibid.) And finally, the ineffective assistance of prior counsel
may justify raising a claim in a subsequent petition. (Id. at
p. 780.)5
5
To justify a second or subsequent filing based on prior
ineffective assistance of counsel, the petitioner must “allege
with specificity the facts underlying the claim that the
inadequate presentation of an issue or omission of any issue
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Opinion of the Court by Kruger, J.
We have mainly used the term “successive petition” to
refer specifically to a petition subject to the successiveness
bar — that is, one raising claims that could have been presented
in a previous petition. (Briggs, supra, 3 Cal.5th at p. 836,
fn. 14.) In Clark, for example, we used the term “successive
petitions” as a shorthand for subsequent petitions “seeking
relief on the basis of the same set of facts” or “raising claims that
could have been raised in a prior petition.” (Clark, supra, 5
Cal.4th at p. 770.) We explained that “[e]ntertaining the merits
of successive petitions is inconsistent with our recognition that
delayed and repetitious presentation of claims is an abuse of the
writ” (id. at p. 769), and that the consideration of such petitions
“unreasonably delays execution of judgment” and “waste[s]
scarce judicial resources” (id. at p. 770). We went on to explain
that the same is not true of second or subsequent petitions
raising claims that could not reasonably have been raised
before. (Id. at pp. 774–775.)6 Echoing this point in Reno, we
observed that “ ‘[e]ntertaining the merits of successive petitions
is inconsistent with our recognition that delayed and repetitious
presentation of claims is an abuse of the writ.’ ” (Reno, supra,
reflects incompetence of counsel . . . . Moreover, 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.”
(Clark, supra, 5 Cal.4th at p. 780.)
6
In connection with Clark’s substantive exception for
fundamental miscarriages of justice, we also explained that
“[t]hese claims will be considered on their merits even though
presented for the first time in a successive petition or one in
which the delay has not been justified” (Clark, supra, 5 Cal.4th
at p. 798), apparently using “successive” to refer to claims whose
omission from a prior petition has not been justified.
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Opinion of the Court by Kruger, J.
55 Cal.4th at p. 455.) And we used the term “successive” in the
same way in Robbins, where we drew a distinction between
“ ‘subsequent’ ” petitions and “ ‘successive’ ” ones: “[C]laims
presented in a ‘subsequent’ petition that should have been
presented in an earlier filed petition will be barred as
‘successive’ unless the petitioner ‘adequately explains’ his or her
failure to present all claims in the earlier filed petition.”
(Robbins, supra, 18 Cal.4th at p. 788, fn. 9.)
True, our cases have not always been consistent in their
use of terminology. As the Attorney General and amici curiae
point out, we have also sometimes used the term “successive” to
refer to any second or subsequent petition, while referring to
those petitions subject to the successiveness bar as both
successive and unjustified. (E.g., Clark, supra, 5 Cal.4th at
p. 774 [“[b]efore considering the merits of a second or successive
petition, a California court will first ask whether the failure to
present the claims underlying the new petition in a prior
petition has been adequately explained, and whether that
explanation justifies the piecemeal presentation of the
petitioner’s claims”]; Reno, supra, 55 Cal.4th at p. 517 [referring
to the court’s “proposed limit of 50 pages for successive
petitions”].)
Despite these variations in our terminology, however, the
substantive principle has remained constant: When we have
barred a claim as “successive,” it is because we have concluded
that the claim was omitted from an earlier petition without
justification, and its presentation therefore constitutes abuse of
the writ process. We have not, by contrast, considered the filing
of a claim that could not have reasonably been raised in an
earlier petition to be an abuse of the writ subject to the bar on
successive petitions.
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Opinion of the Court by Kruger, J.
Amici curiae acknowledge the scope of the successiveness
bar in California habeas jurisprudence, but contend that
statutory context makes clear Proposition 66 voters intended a
distinctly different approach. Amici emphasize that Penal Code
sections 1509 and 1509.1 refer only to “initial” and “successive”
petitions. Interpreting “successive” narrowly to preserve the
traditional carveout for nonabusive claims, they say, would
require us to recognize a third category consisting of second or
subsequent habeas petitions that are treated as nonsuccessive.
Amici observe that while Proposition 66 contains certain
provisions regarding the timeliness of “initial” petitions and
procedures for appealing both “initial” and “successive”
petitions, it contains no similar provisions pertaining to cases in
this third category. From this, amici deduce that no such third
category was intended.
It is possible, as amici curiae say, that Proposition 66
refers only to “initial” and “successive” habeas corpus petitions
because voters believed that all second or subsequent petitions
should be treated as “successive” — and therefore barred unless
the petitioner is able to show actual innocence or ineligibility for
death, regardless of whether the petitioner could have raised the
claim earlier. But it is equally possible that the voters simply
thought it unnecessary to set out special provisions to govern
the relatively rare situation in which a second or subsequent
habeas corpus petition raises claims that could not reasonably
have been presented in an earlier petition.
Amici curiae’s argument would have more force if we were
convinced that voters intended Proposition 66 to supply
comprehensive instructions for the handling of capital habeas
petitions, but we are not so convinced. The question of how
timeliness of a subsequent but nonsuccessive petition may be
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Opinion of the Court by Kruger, J.
determined is beyond the scope of this case, but suffice it to say
that Proposition 66 did not provide a new timeliness rule for any
kind of petition other than initial petitions (and nothing in the
measure appears to preclude continued application of the
traditional timeliness standards that have been developed and
applied in this court’s habeas cases (see Robbins, supra, 18
Cal.4th at p. 780)). And although Proposition 66 may not speak
specifically to procedures for appealing rulings on subsequent
but nonsuccessive petitions, its appellate provisions appear
capable of being applied to such petitions, as explained in
greater detail below. (See pt. IV., post.) Simply put, the fact
that Proposition 66 does not contain explicit instructions for the
handling of subsequent nonsuccessive petitions does not mean
that no such category of petitions exists.
Amici curiae also point to the use of the term “successive”
in a different subdivision of Penal Code section 1509.1 as
evidence that the term was meant to refer to any and all
petitions following the first. Subdivision (a) of section 1509.1,
which addresses appeals from rulings on initial petitions,
specifies that “[a] successive petition shall not be used as a
means of reviewing a denial of habeas relief.” Amici contend
that here, “successive” is used to mean any petition following the
initial petition. Amici contend the term must mean the same
thing everywhere else it appears in the statute, including
sections 1509(d) and 1509.1(c).
We are unpersuaded. As we explained in Briggs, Penal
Code section 1509.1, subdivision (a), is designed to substitute an
appellate procedure for the usual means for obtaining review of
habeas corpus denials — namely, “filing a new habeas corpus
petition in a higher court” (Briggs, supra, 3 Cal.5th at p. 836).
For this limited purpose the statute uses the term “successive
17
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Opinion of the Court by Kruger, J.
petition” to refer to what our cases would typically call a “ ‘new
petition’ . . . seeking review of a lower court’s ruling.” (Id. at
p. 836, fn. 14.) This distinctive usage of the term “successive
petition” does not compel any particular conclusion about the
meaning of the term as it appears in the context of substantive
restrictions on lower courts’ ability to issue rulings in the first
instance.
Finally, CJLF argues that voters could not have intended
to preserve the overall structure of the traditional
successiveness bar because sections 1509(d) and 1509.1(c) refer
to successive “petitions,” while our precedents have applied the
successiveness bar on a claim-by-claim basis. That is to say,
under our case law, courts may consider the merits of one or
more claims in a subsequent petition even if other claims in the
same petition are procedurally barred as successive. (Reno,
supra, 55 Cal.4th at p. 452; Robbins, supra, 18 Cal.4th at p. 788,
fn. 9; Clark, supra, 5 Cal.4th at pp. 768, 780–782.) But context
makes clear that Proposition 66’s restrictions operate in much
the same way. When a petitioner files a “successive” petition,
section 1509(d) calls for a determination whether “the petitioner
has a substantial claim of actual innocence or ineligibility.”
(§ 1509(d), italics added.) And when the petitioner seeks to
appeal the denial of relief, section 1509.1(c) provides for a
certificate of appealability only where the petition states “a
substantial claim for relief, which shall be indicated in the
certificate,” and limits appellate jurisdiction to “the claims
identified in the certificate and any additional claims added by
the court of appeal within 60 days of the notice of appeal.”
(§ 1509.1(c), italics added.) The statutes thus mark no
fundamental departure from traditional habeas law in this
regard.
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Opinion of the Court by Kruger, J.
In short, the text of the statute contains no definitive
indication that by introducing a new stringent standard for the
presentation of claims in “successive” petitions, voters intended
to eliminate the traditional carveout for claims that could not
feasibly have been presented earlier. Given the legal backdrop
against which voters enacted Proposition 66, it is entirely
plausible that voters intended Proposition 66’s stringent
standard for considering successive petitions to capture only
petitions raising claims that would have traditionally been
considered abusive and therefore subject to the successiveness
bar — that is, claims that were omitted from prior habeas
petitions without justification.
Friend, joined by the Attorney General, argues that this
narrower understanding of Proposition 66’s successiveness
provisions is not only plausible, but compelled by the canon of
constitutional avoidance. This rule of interpretation instructs
that “[i]f a statute is susceptible of two constructions, one of
which will render it constitutional and the other
unconstitutional in whole or in part, or raise serious and
doubtful constitutional questions, the court will adopt the
construction which, without doing violence to the reasonable
meaning of the language used, will render it valid in its entirety,
or free from doubt as to its constitutionality, even though the
other construction is equally reasonable. [Citations.] The basis
of this rule is the presumption that the Legislature intended,
not to violate the Constitution, but to enact a valid statute
within the scope of its constitutional powers.” (Miller v.
Municipal Court (1943) 22 Cal.2d 818, 828; accord, People v.
Lopez (2020) 9 Cal.5th 254, 276 [applying canon to
interpretation of initiative measure]; People v. Engram (2010)
19
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Opinion of the Court by Kruger, J.
50 Cal.4th 1131, 1161; People v. Superior Court (Romero) (1996)
13 Cal.4th 497, 509.)
Friend contends that reading “successive” petition in
section 1509(d) as referring broadly to any second or subsequent
petition would raise significant constitutional concerns insofar
as it would bar relief for serious constitutional violations even
“where the petitioner did not discover the basis of a
constitutional violation despite acting diligently.” This broad
reading would, for example, foreclose a claim based on
revelations that the prosecutor failed to disclose evidence that
would have strongly supported the defendant’s case in
mitigation at the penalty phase. Under traditional standards,
we would order a new penalty phase if the withholding of the
evidence could be said to undermine confidence in the death
verdict.7 But under the broad reading of section 1509(d), the
claim would be barred because it neither establishes the
petitioner’s actual innocence nor ineligibility for the death
penalty.
The broad reading of section 1509(d) would likewise
foreclose a claim based on newly available evidence of trial
misconduct by jurors, the prosecutor, defense counsel, or the
trial judge. Such misconduct might be serious enough to call
into question the validity of the judgment, yet fail to meet
7
See, e.g., In re Bacigalupo (2012) 55 Cal.4th 312, 315–317
(ordering relief from judgment of death based on claim in second
state habeas corpus petition that prosecution suppressed
evidence that petitioner had committed his crime under duress,
which would have supported petitioner’s penalty phase case in
mitigation).
20
In re FRIEND
Opinion of the Court by Kruger, J.
section 1509(d)’s innocence or ineligibility standard.8 Similarly,
posttrial scientific developments might yield evidence that
critically undermines confidence in the jury verdict without
establishing innocence or death ineligibility.9
Friend further maintains the broad reading of “successive”
would encompass potentially meritorious claims that could not
have been brought in the initial petition for procedural
reasons — such as a petition challenging an execution method,
which would have been deemed premature at the time of the
first petition10 — or because they arise from a change in
applicable law.11 Finally, Friend points to the possibility of
8
See, e.g., Tharpe v. Sellers (2018) ___ U.S. ___, ___ [138
S.Ct. 545, 548] (juror’s racist view of defendant discovered more
than seven years after trial); Foster v. Chatman (2016) 578 U.S.
___, ___–___ [136 S.Ct. 1737, 1743–1744] (evidence of
prosecutor’s discriminatory use of peremptory challenges
discovered through public records request); Bracy v.
Gramley (1997) 520 U.S. 899, 906–907 (trial judge indicted for
bribery about 10 years after the petitioner’s trial); In re
Gay (2020) 8 Cal.5th 1059, 1084 (relief granted on second
petition in part because attorney-client relationship was
“poisoned at its root by fraud”).
9
See, e.g., In re Richards (2016) 63 Cal.4th 291, 305 (10
years after trial, prosecution expert recanted his trial testimony
identifying the mark on the victim’s arm as resulting from a bite
by defendant).
10
See People v. DePriest (2007) 42 Cal.4th 1, 61 (on appeal,
claims of “[a]lleged imperfections and illegalities in the
execution process that may or may not exist when [defendant’s]
death sentence is implemented are premature”).
11
See, e.g., In re Richards, supra, 63 Cal.4th at page 294,
footnote 2 (“Because of the change in the applicable law
concerning the definition of false evidence, the petition is not
21
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Opinion of the Court by Kruger, J.
meritorious claims of error, not going to innocence or
ineligibility, that counsel for the petitioner incompetently failed
to include in the first petition. As explained earlier, Clark’s
successiveness rule treats counsel’s ineffective assistance, if
established, as good cause for raising the issue in a subsequent
petition. (See ante, at p. 13.) The broad reading of section
1509(d), by contrast, would bar the petitioner from ever raising
the issue.
In Friend’s view, interpreting section 1509(d) to preclude
all these categories of claims would raise serious questions as to
whether Proposition 66 deprives condemned prisoners of due
process and equal protection of the laws and constitutes an
impermissible suspension of the writ of habeas corpus under the
state and federal Constitutions. The Attorney General agrees
that the broad reading of section 1509(d) would raise serious
constitutional questions, and for that reason is to be avoided.
Although the Constitutional Law Amici agree with CJLF that
section 1509(d) should be interpreted broadly, they contend that
the statute, so interpreted, is in fact unconstitutional because it
screens out meritorious claims that could not have been raised
in the earlier petition. Amicus curiae CJLF, on the other hand,
takes the view that the broad reading of section 1509(d) raises
no serious constitutional doubts.
We need not definitively resolve the constitutional debate
here. For present purposes it is enough to observe that the
constitutional questions Friend raises are both novel and
serious. The California Constitution has protected the right to
subject to the procedural bar of successiveness.”); see Reno,
supra, 55 Cal.4th at page 466 (“A change in the law will also
excuse a successive or repetitive habeas corpus petition.”).
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Opinion of the Court by Kruger, J.
seek relief by habeas corpus since our state’s founding. (Cal.
Const. of 1849, art. I, § 5; see Clark, supra, 5 Cal.4th at p. 764.)
Habeas, we have explained, “often represents a prisoner’s last
chance to obtain judicial review” of a criminal conviction. (Reno,
supra, 55 Cal.4th at p. 450.) The law preserves this avenue to
relief in service of principles of substantial justice: “ ‘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.’ ” (Ibid.) And although we
have long limited piecemeal and repetitive claims as an abuse of
the writ, the same principles of substantial justice have led us
to leave “open a ‘safety valve’ for those rare or unusual claims
that could not reasonably have been raised at an earlier time.”
(Id. at p. 452.) Our rules have thus sought to “permit the
resolution of legitimate claims in the fairest and most efficacious
manner possible,” without barring legitimate claims raised
belatedly through no fault of the petitioner. (Ibid.)
If Proposition 66 were construed to preclude even claims
of constitutional error that could not have been raised earlier
with reasonable diligence, it would mark the first time that the
law has closed that long-standing safety valve for newly
available claims. The statute would instead apply the same
exacting innocence or ineligibility standard to all claims raised
in a second or successive petition, whether justifiably or not. It
is a significant question whether such a drastic restriction on
the effectiveness of the habeas corpus remedy would comport
with the principles of substantial justice that lie at the core of
our state Constitution’s habeas protections.
The due process implications of this approach are likewise
substantial. Under the broad reading of section 1509(d), a
23
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Opinion of the Court by Kruger, J.
capital prisoner who discovers that the prosecution has
suppressed material mitigation evidence, or that one of the
convicting jurors repeatedly expressed racial or other bias
against him or her, would have no recourse if the persons
involved managed to conceal the information long enough. To
foreclose such claims by capital prisoners raises substantial
questions of procedural fairness.
When we consider procedural due process claims under
the California Constitution, we weigh four factors: “ ‘(1) the
private interest that will be affected by the official action; (2) the
risk of an erroneous deprivation of such interest through the
procedures used, and the probable value, if any, of additional or
substitute procedural safeguards; (3) the government’s interest,
including the function involved and the fiscal and
administrative burdens that the additional or substitute
procedural requirement would entail; and (4) the dignitary
interest in informing individuals of the nature, grounds, and
consequences of the action and in enabling them to present their
side of the story before a responsible government official.’ ”
(People v. Allen (2008) 44 Cal.4th 843, 862–863.) Considering
the weighty private interest at stake in a capital habeas corpus
proceeding, the risk of error created when potentially
meritorious claims are barred even if presented as promptly as
reasonably possible upon discovery, and the dignitary
significance of ensuring the validity of death judgments before
execution, it is at least questionable whether governmental
interests in finality of judgments and conservation of judicial
resources can justify a rule barring all but a very narrow class
24
In re FRIEND
Opinion of the Court by Kruger, J.
of claims presented in second or subsequent petitions regardless
of whether barred claims could have been presented earlier.12
Other state courts have concluded that similar
constitutional principles forbid categorical restrictions on the
presentation of habeas claims that could not reasonably have
been raised earlier. (People v. Germany (Colo. 1983) 674 P.2d
345, 353 [statute barring all collateral challenges commenced
after a period of limitation violates state and federal due process
in that it “makes no attempt to distinguish between those
constitutional challenges which could and should have been
asserted in a timely manner and those which, due to special
circumstances or causes, could not have been raised within the
applicable period of limitation”]; Lott v. State (2006) 334 Mont.
270, 278–279 [precluding invalid-conviction claim that is based
on an intervening statutory interpretation would violate the
state Constitution’s suspension clause].) We need not decide
here whether we would follow these cases in applying the
California Constitution; in either event, the decisions
underscore the point that the constitutional questions at stake
are substantial.
Amicus curiae CJLF argues that the United States
Supreme Court’s decision in Felker v. Turpin (1996) 518 U.S.
651 (Felker) disposes of any questions that might arise about the
scope of Proposition 66’s successiveness provisions. The high
court in Felker considered the constitutionality of a provision of
12
While California’s constitutional due process clause has
generally been understood as requiring much the same process
as the federal Constitution, we retain authority to construe the
state charter independently. (People v. Allen, supra, 44 Cal.4th
at p. 863, fn. 14.)
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Opinion of the Court by Kruger, J.
the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA; Pub.L. No. 104-132 (Apr. 24, 1996) 110 Stat. 1214)
that generally requires dismissal of “second or successive”
habeas applications raising claims based on newly discovered
evidence except where “(i) the factual predicate for the claim
could not have been discovered previously through the exercise
of due diligence; and [¶] (ii) the facts underlying the claim, if
proven and viewed in light of the evidence as a whole, would be
sufficient to establish by clear and convincing evidence that, but
for constitutional error, no reasonable factfinder would have
found the applicant guilty of the underlying offense.” (28 U.S.C.
§ 2244(b)(2)(B).) The court rejected challengers’ argument that
applying this standard to newly available claims constituted an
impermissible suspension of the writ of habeas corpus. (U.S.
Const., art. I, § 9.) The court reasoned that the new restrictions
constitute “a restraint on what is called in habeas corpus
practice ‘abuse of the writ,’ ” a doctrine subject to both judicial
and legislative evolution, and that “[t]he added restrictions
which the Act places on second habeas petitions are well within
the compass of this evolutionary process.” (Felker, at p. 664.)
We are unpersuaded that Felker disposes of the
constitutional questions surrounding section 1509(d). For one
thing, section 1509(d) differs in certain respects from the federal
statute on review in Felker, and the high court in Felker had no
occasion to opine on the full range of questions section 1509(d)
raises.13 But more fundamentally, Felker addressed only the
13
For instance, the broad reading of section 1509(d) would
ordinarily mandate dismissal of any subsequent petition raising
claims based on intervening changes in the law. Felker had no
26
In re FRIEND
Opinion of the Court by Kruger, J.
suspension clause of the United States Constitution. It did
not — indeed, could not — provide definitive guidance on
questions arising under the habeas corpus or due process
provisions of the California Constitution.
In California law, procedural bars to habeas corpus claims
serve an important interest in finality of judgments. But these
procedural bars have always been subject to exceptions “designed
occasion to consider the implications of such a limitation, since
AEDPA makes an explicit exception for claims based on new
rules of constitutional law made retroactive on collateral review.
(28 U.S.C. § 2244(b)(2)(A).)
Felker also concerned claims that could, in fact, have been
raised earlier. (See Felker, supra, 518 U.S. at pp. 657–658; see
also Felker v. Turpin (11th Cir. 1996) 83 F.3d 1303, 1306
[“Felker does not contend that the factual predicate for this
claim could not have been discovered previously through the
exercise of due diligence.”].) The high court in Felker had no
reason to address the constitutional implications of preventing
a habeas petitioner from raising a substantial constitutional
claim at the first available opportunity, as the broad reading of
section 1509(d) would do. Subsequent federal cases have
addressed various questions concerning the application of
AEDPA’s second-or-successive rules in circumstances where the
petitioner could not reasonably have raised a particular claim
earlier. (See, e.g., Panetti v. Quarterman, supra, 551 U.S. at
pp. 945–946 [holding that AEDPA’s rules do not apply to claims
of incompetence to be executed, which are typically not ripe until
well after the initial habeas petition is filed, noting that
applying the second-or-successive standards to such claims
would mean “petitioners ‘run the risk’ . . . of ‘forever losing their
opportunity for any federal review’ ”]; Scott v. U.S. (11th Cir.
2018) 890 F.3d 1239, 1247–1258 [criticizing circuit precedent
holding that claims under Brady v. Maryland (1963) 373 U.S. 83are subject to AEDPA’s gatekeeping provisions].) In the end,
however, it bears repeating that these cases do not bind us in
our interpretation of state law.
27
In re FRIEND
Opinion of the Court by Kruger, J.
to ensure fairness and orderly access to the courts.” (Reno, supra,
55 Cal.4th at p. 452.) A successiveness bar lacking an exception
for claims that could not with reasonable diligence have been
presented in an earlier petition threatens the guarantee of fair
access to courts that has traditionally been central to habeas
corpus procedure in this state, and in so doing raises significant
questions under the California Constitution. As between the two
possible readings of section 1509(d), we presume voters did not
intend the interpretation that raises substantial constitutional
doubts.
As amici curiae CJLF and the Constitutional Law Amici
both argue, it is clear that voters did intend to expedite habeas
corpus proceedings in capital cases. (Briggs, supra, 3 Cal.5th at
pp. 823–825.) But while it may be true that a broad reading of
section 1509(d) would serve this purpose by barring more
claims, that is not sufficient reason to adopt the reading. The
narrower, alternative reading also serves voters’ purposes.
Even if construed as incorporating the meaning of “successive”
developed in our case law, section 1509(d) will limit subsequent
habeas corpus petitions through its replacement of Clark’s
substantive exception for fundamental miscarriages of justice
with a narrower exception limited to claims of innocence or
ineligibility.14 Section 1509.1(c)’s certificate requirement for
successive claims will also operate as an additional procedural
check on potentially abusive petitions, even if its scope is not as
broad as possible. And of course other provisions of Penal Code
sections 1509 and 1509.1 also tend to speed up the process of
capital habeas corpus review. (See Pen. Code, § 1509, subds. (a)
14
No issue regarding the constitutionality of this change is
raised here, and we express no opinion on the matter.
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Opinion of the Court by Kruger, J.
[section provides exclusive procedure for collateral attack;
petitions generally to be first adjudicated in sentencing court],
(c) [time limit for filing initial petition] & (f) [calling for
expedition in deciding and setting two-year goal]; id., § 1509.1,
subds. (a) [providing for review by appeal filed within 30 days of
decision] & (b) [limiting issues to be addressed on appeal].)
In any event, “no legislation pursues its purposes at all
costs. Deciding what competing values will or will not be
sacrificed to the achievement of a particular objective is the very
essence of legislative choice — and it frustrates rather than
effectuates legislative intent simplistically to assume
that whatever furthers the statute’s primary objective must be
the law.” (Rodriguez v. United States (1987) 480 U.S. 522, 525–
526; accord, e.g., Sonic-Calabasas A, Inc. v. Moreno (2013) 57
Cal.4th 1109, 1167.) We see no evidence that Proposition 66 was
intended to speed up the process of review to the maximum
extent possible, no matter the costs to the principles of
substantial justice that lie at the core of the Constitution’s
habeas corpus and due process guarantees. Rather, stating its
purposes in uncodified findings and declarations, Proposition 66
was specifically focused on curbing “frivolous and unnecessary
claims” that have “wasted taxpayer dollars and delayed justice.”
(Voter Information Guide, Gen. Elec. (Nov. 8, 2016) text of Prop.
66, § 2, subd. 7, p. 213 (Voter Information Guide).) Making a
claim of constitutional violation that could not reasonably have
been made in an earlier petition is not by its nature a frivolous,
unnecessary, or wasteful act. We cannot assume the voters were
so single-handedly determined to expedite capital habeas corpus
proceedings that they would pass a statute systematically
29
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Opinion of the Court by Kruger, J.
precluding many such claims and thereby raising serious doubts
about the measure’s constitutionality.15
Amici curiae turn to the ballot materials to support their
view. But Proposition 66’s effects on habeas corpus litigation
did not figure heavily in the ballot materials, and nothing in the
ballot arguments for and against the measure sheds light on the
question here.
The analysis provided by the Legislative Analyst did touch
on the topic of limits on successive petitions (though without
using that particular term). Discussing restrictions on habeas
corpus in light of Proposition 66’s newly introduced time limits,
the analysis stated: “In order to help meet the above time
frames, the measure places other limits on legal challenges to
death sentences. For example, the measure does not allow
additional habeas corpus petitions to be filed after the first
petition is filed, except in those cases where the court finds that
the defendant is likely either innocent or not eligible for the
death sentence.” (Voter Information Guide, supra, analysis of
Prop. 66 by Legis. Analyst, p. 106.) And in its discussion of fiscal
15
CJLF also argues from the initiative’s purpose but focuses
on how federal court proceedings may be affected by the
interpretive question here. The gist of the argument is that a
broad reading of section 1509(d)’s bar on successive petitions, by
providing federal district courts with grounds for considering
state prisoners’ petitions defaulted without issuing stays for
exhaustion in state court, will tend to expedite postconviction
proceedings overall. We express no opinion as to whether
section 1509(d), however construed, will or would have this
effect. As an interpretive matter, the argument is unavailing
because neither the text of section 1509(d) nor anything in the
materials presented to the voters indicate Proposition 66 was
intended to affect federal court proceedings in this manner.
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Opinion of the Court by Kruger, J.
effects, the analysis observed that “the limits on the number of
habeas corpus petitions that can be filed” could reduce the time
and resources spent on postconviction proceedings in capital
cases. (Id. at p. 107.) Neither of these passages, however,
brought to voters’ attention the specific problem of claims that
could not reasonably have been brought in a prior petition.
Though the analysis suggests the proposed statutes would place
limits on the number of habeas corpus petitions that a
condemned person could file, it does not establish the voters
intended the measure as operating so strictly as to preclude a
condemned prisoner from seeking relief on grounds of a
prejudicial constitutional error that, even with reasonable
diligence, could not have been discovered and presented earlier.
Again, given the significant constitutional doubts that would be
raised by such a reading, and in the absence of any substantial
evidence to the contrary, we presume this was not the voters’
intent.
We instead conclude that the voters’ intent in using the
term “successive” in section 1509(d) was to build on, rather than
fundamentally reconfigure, the concept of “successiveness” as it
has developed in the case law. Rather than presume the voters
intended a sea change in habeas law that would, for the first
time, eliminate the established safety valve for claims that could
not have reasonably been raised earlier, we instead conclude
they determined to tighten the standards courts have developed
to deter abuse of the writ of habeas corpus by making it harder
for capital petitioners to earn a second chance to raise claims
they could, and should, have raised earlier.
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Opinion of the Court by Kruger, J.
III.
We turn next to the question of whether Proposition 66’s
limits on successive petitions are applicable where, as here, the
petitioner’s previous habeas corpus petition was filed before
Proposition 66 took effect. We conclude they are.
As a rule, courts presume that newly enacted legislation
is intended to operate prospectively and not retroactively. (See,
e.g., Californians for Disability Rights v. Mervyn’s, LLC (2006)
39 Cal.4th 223, 230; Evangelatos v. Superior Court (1988) 44
Cal.3d 1188, 1208–1209.) Friend contends that in cases where
the first petition was filed before Proposition 66, applying
section 1509(d) to a subsequent petition would constitute
retroactive application because it would attach new
consequences to the preenactment act of filing the first petition.
(See Landgraf v. USI Film Products (1994) 511 U.S. 244, 270
(Landgraf) [a statute operates retroactively when it “attaches
new legal consequences to events completed before its
enactment”].) Friend further argues that section 1509(d) does
not manifest an intent for retroactive application sufficient to
overcome the presumption against retroactive statutory
changes. The Attorney General disagrees. He argues that there
is no question of retroactive application when section 1509(d) is
applied to petitions filed after Proposition 66’s effective date.
But in any event, the text of Proposition 66 manifests the voters’
intent to limit all successive capital petitions, regardless of
when the first petition was filed.
The parties have briefed this issue as arising principally if
section 1509(d) is understood to categorize all subsequent
petitions as successive. Under that interpretation, the statute
would treat claims in subsequent petitions quite differently
32
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Opinion of the Court by Kruger, J.
than under prior law, since it would eliminate the
successiveness bar’s traditional carveout for claims that could
not reasonably have been presented earlier. In part II., ante, we
adopt a different reading of section 1509(d), under which it
applies only to claims that would have been deemed successive
under prior law. But Friend argues that even so construed,
section 1509(d) operates retroactively when the prior petition
predated Proposition 66, because section 1509(d) restricts the
types of claims that may be entertained in a successive petition,
replacing Clark’s fundamental-miscarriage-of-justice exception
with a narrower one limited to claims of innocence or
ineligibility.16
Employing current statutory procedures in current
litigation is not ordinarily considered a retroactive application
of the statute, even where the litigation arises from events
antedating the statute’s effectiveness. (Californians for
Disability Rights v. Mervyn’s, LLC, supra, 39 Cal.4th at p. 231.)
But in some circumstances a formally procedural rule may
operate to retroactively affect substantive rights and
expectations. Broadly speaking, whether a statute operates
retroactively — and therefore impermissibly, absent express
16
We consider only cases like this one, in which the prior
petition predated Proposition 66 but postdated our decision in
Clark. We have declined to apply our successiveness bar where
the prior petition predated Clark because, before that decision,
we had not applied a consistent preclusive rule. “Clark serves
to notify habeas corpus litigants that we shall apply the
successiveness rule when we are faced with a petitioner whose
prior petition was filed after the date of finality of Clark.”
(Robbins, supra, 18 Cal.4th at p. 788, fn. 9.) Our analysis here
does not apply to a case where the prior petition was filed before
Clark and the subsequent one after Proposition 66.
33
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Opinion of the Court by Kruger, J.
legislative intent — is a judgment guided by “considerations of
fair notice, reasonable reliance, and settled expectations.”
(Landgraf, supra, 511 U.S. at p. 270.) “In deciding whether the
application of a law is prospective or retroactive, we look to
function, not form. [Citations.] We consider the effect of a law
on a party’s rights and liabilities, not whether a procedural or
substantive label best applies. Does the law ‘change[] the legal
consequences of past conduct by imposing new or different
liabilities based upon such conduct[?]’ [Citation.] Does it
‘substantially affect[] existing rights and obligations[?]’
[Citation.] If so, then application to a trial of preenactment
conduct is forbidden, absent an express legislative intent to
permit such retroactive application. If not, then application to
a trial of preenactment conduct is permitted, because the
application is prospective.” (Elsner v. Uveges (2004) 34 Cal.4th
915, 936–937; see also Strauss v. Horton (2009) 46 Cal.4th 364,
472 [focus is on whether application of the new law would
“impair vested rights acquired under the prior state of the
law”].)
Applying these principles, we conclude that when section
1509(d) is applied to a post-Proposition 66 petition subsequent
to an initial pre-Proposition 66, post-Clark petition, the statute
is not operating retroactively. Application of section 1509(d) in
these circumstances alters no established rights or liabilities,
and defeats no reasonable, settled expectations. Proposition 66
underscores the importance of presenting available claims in
the first petition, but raises no retroactivity concerns because
prior law already required counsel undertake all reasonable
efforts to investigate and present available habeas claims rather
than withholding them for presentation in a later petition.
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Opinion of the Court by Kruger, J.
Under Clark and Reno, counsel has the duty, in the initial
petition, of investigating and presenting all claims that could be
discovered and presented at that time through due diligence.
(Reno, supra, 55 Cal.4th at p. 452; see Clark, supra, 5 Cal.4th at
p. 775 [“A petitioner will be expected to demonstrate due
diligence in pursuing potential claims. If a petitioner had
reason to suspect that a basis for habeas corpus relief was
available, but did nothing to promptly confirm those suspicions,
that failure must be justified.”].) On the other hand, our
established law does not call for habeas counsel to follow every
possibility in the remote hope of finding some unknown claim.
(See Robbins, supra, 18 Cal.4th at p. 781 [“Counsel is not
expected to conduct an unfocused investigation grounded on
mere speculation or hunch, without any basis in triggering
fact.”].) If habeas corpus counsel preparing an initial petition
before Proposition 66 was aware of a potentially meritorious
claim of fundamental miscarriage of justice, counsel had an
obligation to investigate and present that claim; he or she could
not reasonably refrain from presenting it because it might fall
within Clark’s substantive exception and be permissibly
presented in a future successive petition. Nothing in
Proposition 66 changes the scope of counsel’s obligations on an
initial habeas corpus petition: Counsel’s duty remains one of
reasonable diligence in investigation and presentation of claims,
and counsel is still not called on to pursue purely speculative
lines of investigation or to include unfounded claims in an initial
petition, even if those claims fall outside section 1509(d)’s
exception for innocence or ineligibility. The measure’s
narrowing of the substantive exception to successiveness thus
does not make its application retroactive.
35
In re FRIEND
Opinion of the Court by Kruger, J.
Analogizing to federal law, Friend relies on a federal
decision holding that AEDPA’s limits on second or successive
petitions (28 U.S.C. § 2244(b)(2)) have a retroactive effect where
the initial application for relief was filed before AEDPA, if the
subsequent petition would not have been procedurally barred
under pre-AEDPA law. (In re Hanserd (6th Cir. 1997) 123 F.3d
922; see In re Minarik (3d Cir. 1999) 166 F.3d 591 [discussing In
re Hanserd].) Whatever the merits of Hanserd’s retroactivity
reasoning, Hanserd is distinguishable in that it addressed an
application of AEDPA that would have foreclosed consideration
of a claim based on intervening case law, law upon which
Hanserd could not realistically have relied in his earlier
application for relief. (See Hanserd, at p. 924.) Regardless of
when in relation to AEDPA Hanserd’s earlier petition was filed,
then, application of AEDPA’s successiveness bar worked a
severe, and in some ways unique, unfairness in Hanserd’s case.
For reasons explained in part II., ante, our construction of
Proposition 66 raises no similar concerns.
In other cases, federal appellate courts have discerned no
retroactive effect in application of AEDPA’s provisions. (U.S. v.
Villa-Gonzalez (9th Cir. 2000) 208 F.3d 1160, 1163; Mancuso v.
Herbert (2d Cir. 1999) 166 F.3d 97, 101.) And still others have
rejected AEDPA retroactivity claims in particular cases because
the petitioner did not show objectively reasonable reliance in
omitting claims from the first petition. (See Pratt v. U.S. (1st
Cir. 1997) 129 F.3d 54, 59; Graham v. Johnson (5th Cir. 1999)
168 F.3d 762, 786; Alexander v. U.S. (7th Cir. 1997) 121 F.3d
312, 314.)
Here, if counsel on the prior, pre-Proposition 66 petition
knew of an error or violation amounting to a fundamental
miscarriage of justice, counsel’s duty under Clark, Robbins and
36
In re FRIEND
Opinion of the Court by Kruger, J.
Reno was to fully investigate and present that claim in the
earlier petition. It would not have been reasonable to ignore
that duty in the hope that the claim could later be presented in
a successive petition under Clark’s substantive exception.
We therefore conclude that applying section 1509(d) to a
post-Proposition 66 successive petition (following an initial pre-
Proposition 66, post-Clark petition) raises no retroactivity
concerns. While the new statutory rule relates in part to a
preenactment event, the filing of the initial petition, it does not
meaningfully change the legal ramifications of that event. In
light of the “considerations of fair notice, reasonable reliance,
and settled expectations” that govern this determination
(Landgraf, supra, 511 U.S. at p. 270), application of section
1509(d) to a petition filed after the statute’s effectiveness should
not be deemed retroactive, whenever the earlier petition was
filed.
On its face, Penal Code section 1509 applies to “any
petition for writ of habeas corpus filed by a person in custody
pursuant to a judgment of death” (id., subd. (a)), and subdivision
(d)’s restrictions apply to “a successive petition whenever filed.”
Nothing in the text or the accompanying ballot materials
indicates an intent to limit these provisions to cases in which
both the initial and successive petitions are filed after the
measure’s effective date. We conclude there is no such limit on
section 1509(d)’s application.
IV.
Finally, we consider the procedures for appellate review of
a trial court’s determination that one or more claims in a
subsequent petition are successive within the meaning of
section 1509(d).
37
In re FRIEND
Opinion of the Court by Kruger, J.
As noted above, Proposition 66 did not explicitly address
this point. Section 1509.1(c) requires a certificate of
appealability for appeal from the dismissal of a successive
petition, and a certificate may issue (from either the superior
court or the Court of Appeal) only when there is “a substantial
claim that the requirements of subdivision (d) of Section 1509
have been met.” The statute does not expressly provide for
issuance of a certificate upon a showing that the petition is not
successive because one or more of its claims could not have been
raised in an earlier petition or were omitted through ineffective
assistance of counsel on the prior petition. Nor does the statute
explicitly preclude issuance of a certificate on such a showing.17
Friend contends first that a dismissal for successiveness
should be appealable under the provisions of Penal Code section
17
The California Rules of Court are no clearer on this point.
Rule 8.392 provides that the notice of appeal must identify the
appeal as from denial of relief on a successive petition (rule
8.392(b)(2)), and if the superior court denied a certificate of
appealability the notice must “explain how the requirements
of Penal Code section 1509(d) have been met” (rule 8.392(b)(3)).
On its face, this rule appears to preclude a petitioner from filing
a noncertificate appeal and arguing in the briefing that the
superior court erred in finding the petition successive. Left
unclear, though, is whether the petitioner may seek a certificate
from the Court of Appeal on the basis of a substantial showing
that the petition, or some of its claims, were erroneously deemed
successive. Similarly, rule 4.576(b) provides that in issuing a
certificate of appealability on a successive petition the superior
court “must identify the substantial claim or claims for relief
shown by the petitioner and the substantial claim that the
requirements of Penal Code section 1509(d) have been met.”
The rule neither allows nor disallows the issuance of a
certificate on a substantial showing that the petition, or some of
its claims, are not successive.
38
In re FRIEND
Opinion of the Court by Kruger, J.
1509.1, subdivision (a). He acknowledges that this subdivision,
by its terms, applies only to initial petitions, but argues that
that term could be read to include “any petition that is not
properly deemed successive,” and that we should so interpret —
or so reform — the statute in order to avoid the absurd and
unconstitutional result that a petitioner would have no
appellate recourse from the superior court’s successiveness
determination.
Alternatively, if a successiveness dismissal is appealable
only under subdivision (c) of section 1509.1 — as the statutory
text provides — Friend maintains that a certificate should issue
“when the petitioner makes a substantial showing that his
petition is not successive and presents a substantial claim for
relief.” Section 1509.1(c), he argues, may be read to permit a
certificate “to issue when the petitioner has set forth a
substantial argument that section 1509(d) does not apply at
all — not only that the exceptions in section 1509(d) are
satisfied.”18
The Attorney General embraces Friend’s alternative
suggestion — that a certificate may issue on the successiveness
question itself — as “giv[ing] force to the certificate of
appealability requirement, while at the same time assuring
review of a superior court’s determination that a petition is
18
As a third option, Friend suggests the certificate
requirement might be excused for threshold issues such as
successiveness while applying to the merits of the claim. He
points to no textual support for this reading, though, and
explains that it would amount, in practice, to permitting an
appeal under Penal Code section 1509.1, subdivision (a), as an
initial petition. We need not address this unsupported reading
further.
39
In re FRIEND
Opinion of the Court by Kruger, J.
successive.” At the same time, the Attorney General urges us to
reject Friend’s primary argument — that the certificate
requirement can be avoided through application of Penal Code
section 1509.1, subdivision (a), to a petition found successive in
the trial court — as contrary to both statutory text and purpose.
We agree with both parties that Proposition 66 can and
should be read to provide a means for appealing the superior
court’s determination that a subsequent petition is successive.
An interpretation leaving unsuccessful petitioners with no
opportunity for appellate review at all would be contrary to the
voters’ evident intent to provide a statutory right of appeal,
albeit a limited one, from denial of petitions deemed successive
as well as initial petitions. Moreover, when combined with the
measure’s prohibition on review by writ (Pen. Code, § 1509.1,
subd. (a)), such an interpretation would effectively eliminate
appellate court jurisdiction over a substantial class of habeas
corpus petitions — a result that would raise significant
constitutional questions. (See Briggs, supra, 3 Cal.5th at
pp. 833, 841.)
We further agree with the Attorney General that section
1509.1(c) is best read as allowing a certificate of appealability to
issue on the successiveness question itself. In context, and with
the understanding that section 1509(d)’s limits on successive
petitions incorporate the parameters of Clark’s successiveness
bar (see pt. II., ante), section 1509.1(c)’s demand for “a
substantial claim that the requirements of subdivision (d) of
Section 1509 have been met” is reasonably understood to include
a substantial claim that the requirements of section 1509(d) do
not apply because the claim or claims are not successive. Under
this reading, as the Attorney General observes, section
1509.1(c)’s certificate requirement plays its intended screening
40
In re FRIEND
Opinion of the Court by Kruger, J.
role: The appeal is permitted to proceed as to a disputed claim
only if the petitioner is able to make a substantial showing that
the claim, although presented in a subsequent petition, was not
successive within the meaning of Clark’s rule.
As a procedure for appellate review of a superior court’s
determination that a subsequent petition’s claim or claims are
successive within the meaning of section 1509(d), an appeal
under section 1509.1(c), as we interpret it, is superior to one
under Penal Code section 1509.1, subdivision (a), in terms of
implementing the statutory purposes. Allowing an appeal as of
right under Penal Code section 1509.1, subdivision (a) would
unnecessarily vitiate the screening mechanism provided in
section 1509.1(c). When the superior court has determined that
a subsequent petition is not successive, however, but has denied
the petition on its merits, allowing an appeal under Penal Code
section 1509.1, subdivision (a) would result in no evasion of the
statute’s screening mechanism, since no such screening is called
for as to a nonsuccessive petition.
V.
The Court of Appeal’s order denying a certificate of
appealability is reversed, and the matter is remanded to that
court for it to address the successiveness question under the
standard and procedures we have described. For each claim of
the petition, the Court of Appeal is to determine whether
petitioner has made a substantial showing that the claim is not
successive within the meaning of section 1509(d), as we have
construed it here (see pt. II., ante), and is to issue a certificate of
41
In re FRIEND
Opinion of the Court by Kruger, J.
appealability on any claim or claims as to which that showing
has been made.
KRUGER, J.
We Concur:
CANTIL-SAKAUYE, C. J.
CORRIGAN, J.
LIU, J.
CUÉLLAR, J.
GROBAN, J.
JENKINS, J.
42
See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.
Name of Opinion In re Friend
__________________________________________________________________
Procedural Posture (see XX below)
Original Appeal
Original Proceeding
Review Granted (published)
Review Granted (unpublished) XX NP order filed 7/15/19 – 1st
Dist., Div. 3
Rehearing Granted
__________________________________________________________________
Opinion No. S256914
Date Filed: June 28, 2021
__________________________________________________________________
Court: Superior
County: Alameda
Judge: C. Don Clay
__________________________________________________________________
Counsel:
Jon M. Sands, Federal Public Defender, Lindsey Layer and Stanley
Molever, Assistant Federal Public Defenders, for Petitioner Jack
Wayne Friend.
Cuauhtemoc Ortega, Interim Federal Public Defender (Central Dist. of
Cal.), and Heather Williams, Federal Public Defender (Eastern Dist. of
Cal.), as Amici Curiae on behalf of Petitioner Jack Wayne Friend.
Gibson, Dunn & Crutcher, Kelsey John Helland, Viola H. Li, Zhen He
Tan, Theane Evangelis, Ilissa Samplin, Michael Holecek and Shaun
Mathur for Attorneys for Constitutional Law as Amici Curiae on behalf
of Petitioner Jack Wayne Friend.
Xavier Becerra, Attorney General, Michael J. Mongan, State Solicitor
General, Lance Winters, Chief Assistant Attorney General, James
William Bilderback II, Assistant Attorney General, Helen H. Hong,
Deputy State Solicitor General, and Alice B. Lustre, Deputy Attorney
General, for Respondent California Department of Corrections and
Rehabilitation.
Kent S. Scheidegger and Kymberlee C. Stapleton for Criminal Justice
Legal Foundation as Amicus Curiae.
Counsel who argued in Supreme Court (not intended for
publication with opinion):
Lindsey Layer
Federal Public Defender
850 West Adams St,, Suite 201
Phoenix, AZ 85007
(602) 390-3125
Helen H. Hong
Deputy State Solicitor General
600 West Broadway St.
San Diego, CA 92101
(619) 783-9693
Kent S. Scheidegger
Criminal Justice Legal Foundation
2131 L. Street
Sacramento, CA 95816
(916) 446-0345