In re WILLIAM JOHN CLARK on Habeas Corpus, 5 Cal. 4th 750

Opinion BAXTER, J. William John Clark petitions for a writ of habeas corpus, claiming that the judgment pursuant to which he is confined under a sentence of death is invalid. We conclude that his unjustified delay in presenting his claims bars consideration of the merits of the petition. An exception to this bar would be recognized if, as a result of the defects of which petitioner complains, the conviction and/or sentence were shown to constitute a fundamental miscarriage of justice.

A fundamental miscarriage of justice is established by showing: (1) that error of constitutional magnitude led to a trial that was so fundamentally unfair that absent the error no reasonable judge or jury would have convicted the petitioner; (2) that the petitioner is actually innocent of the crime or crimes of which he was convicted; (3) that the death penalty was imposed by a sentencing authority which had such a grossly misleading profile of the petitioner before it that absent the error or omission no reasonable judge or jury would have imposed a sentence of death; or (4) that the petitioner was convicted under an invalid statute.

The allegations of the petition and supporting exhibits fail to demonstrate that petitioner could establish the existence of any of these exceptions, however. We shall, therefore, deny the petition for writ of habeas corpus. I. Prior Proceedings On April 5, 1990, this court affirmed a judgment of conviction of petitioner, and the imposition of the death penalty, after a jury found petitioner guilty of first degree murder with a special circumstance of murder in the commission of arson (Pen.

Code, §§ 189, 190.2, subd. (a)(17)(viii)), two counts of attempted murder (§§ 664/187), arson (§ 451, subd. (a)), and rape (§ 261, subd. (a)(2)). (People v. Clark (1990) 50 Cal.3d 583 [268 Cal.Rptr. 399, 789 P.2d 127].) There was no question that petitioner committed the acts which led to his conviction. On January 6, 1982, he threw one bucket of gasoline into the dining area of the home of David and Ava Gawronski, and another into the couple’s bedroom, where both were sleeping. He ignited the gasoline with lighted highway flares. David Gawronski suffered fatal burns in the ensuing flash fire.

Ava Gawronski was burned so severely that she was hospitalized for 10 months, and suffered permanent injuries and disfigurement, including the loss of her fingers and nose. Petitioner admitted these acts, contesting only the prosecution’s claim that he intended to kill the Gawronskis and their infant daughter, who was rescued unharmed from another bedroom. His intent, he explained, was only to drive the couple out of the home so that he could shoot and kill David Gawronski with the shotgun he carried with him, while Ava Gawronski watched.

His purpose was to demonstrate, by causing her to suffer, how much Ava Gawronski, a licensed social worker and marriage and family counselor, had hurt him when she terminated the counseling she had been giving him. He admitted, however, that when he threw the flare to ignite the gasoline, he knew he was throwing it into the victims’ bedroom. The death penalty verdict was returned after a retrial of the penalty phase at which petitioner represented himself. The original jury had been unable to reach a penalty verdict. None of the experts who examined petitioner diagnosed him as incompetent or mentally ill.

The second penalty jury heard testimony by a psychologist, Dr. John Hatcher, that petitioner had a “borderline personality” between neurotic and psychotic. Petitioner had told Dr. Hatcher that he felt morally justified under his own ethical code, and had stated that he could not have asked that his act of revenge turn out any better than it had. Dr. Linda Weinberger, also a psychologist, testified that petitioner had expressed a desire to kill two other persons, and had said he would consider finding a person about to be released from prison to do this for him.

The judgment of death was imposed on February 1, 1985. Counsel on appeal was appointed by this court on March 5, 1985, the record on appeal was filed on November 21, 1986, and briefing was completed on December 26, 1989. At the time the judgment was affirmed on April 5, 1990, however, no petition for writ of habeas corpus challenging the validity of that judgment had been filed. Almost one year later, petitioner first sought relief by habeas corpus, filing his first such petition on March 15, 1991. No explanation for the delay in seeking relief was offered in the petition.

The first petition alleged: (1) that this court had denied petitioner due process and violated the ex post facto guarantees of the state and federal Constitutions in construing the arson special circumstance (§ 190.2, subd. (a)(17)(viii)); (2) that, because petitioner was incompetent, petitioner had been denied due process, effective assistance of counsel, and protection against cruel and unusual punishment at the penalty phase of his trial when the trial court acceded to petitioner’s request to represent himself; and (3) that this court had failed to apply the test of reversible error required by Chapman v.

California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711, 87 S.Ct. 824, 24 A.L.R.3d 1065], in ruling on the appellate claims of error. After receiving opposition, and denying petitioner’s request for time to supplement the petition with additional factual allegations and supporting documentation, this court concluded that the petition failed to state a prima facie case entitling petitioner to relief. The petition was denied on May 15, 1991. II. The Second Petition On August 16, 1991, this second petition was filed.

Petitioner explains the filing of another petition on the basis that his additional claims were “developed” in response to the decision of the United States Supreme Court in McCleskey v. Zant (1991) 499 U.S. 467 [113 L.Ed.2d 517, 111 S.Ct. 1454], In this petition, petitioner challenges the validity of the judgment on the grounds that in the proceedings leading to his conviction and sentence he was denied due process, a fair trial, effective assistance of counsel, and protection against cruel and unusual punishment. These claims, as characterized by petitioner, are set forth below. 1. Failure to Recuse.

The office of the Los Angeles County District Attorney, members of whose staff prosecuted petitioner, failed to recuse itself after hiring as a deputy district attorney an attorney who had represented petitioner during pretrial proceedings until October 19,1982, when he withdrew as petitioner’s counsel. This, petitioner argues, denied him due process and the right to counsel because the prosecution thereby became privy to more than one year of confidential communications, and successor counsel was denied access to the attorney as a source of information, strategy, or testimony. 2. Effective Counsel.

Petitioner claims he was denied his right to effective assistance of counsel for the reasons set forth below: a.

Petitioner’s counsel failed to investigate petitioner’s competency to represent himself at the retrial of the penalty phase or to request the appointment of separate counsel to undertake that investigation, did not defer to petitioner’s desire to testify at the penalty retrial and thus did not remove one of the bases for petitioner’s election to represent himself, and did not bring to the attention of the court information tending to negate petitioner’s competency to represent himself or even to proceed to the penalty trial.

Had counsel adequately warned petitioner of the dangers of self-representation, accommodated petitioner’s concerns, brought to the attention of the court information tending to show that petitioner’s election was not knowing and voluntary, or investigated petitioner’s competency and developed evidence to establish that petitioner could not make a knowing and intelligent decision, petitioner would have enjoyed his right to representation by effective counsel at the penalty retrial. b.

Petitioner’s counsel failed to investigate and present evidence of petitioner’s conforming conduct, lack of disciplinary record, and the positive image jail personnel held of him during the three years prior to trial, and to present this as mitigating evidence at the penalty phase. c. Petitioner’s counsel failed to investigate and present evidence other than the testimony of petitioner and his parents regarding petitioner’s background and upbringing.

Numerous other witnesses were available, including members of petitioner’s family, and his school and social contacts; in addition, documentary materials were also available. All of these would have had a mitigating effect. d. Petitioner’s counsel erroneously advised him to submit to examination by a psychologist selected by the prosecution, failed to monitor the examination, and failed to insist on a verbatim recording of the examination. 3. Due Process/Fair Trial. Petitioner was denied due process and a fair trial by the prosecutor’s “false implication” to the jury that a penalty retrial was required by law.

This implication assertedly undermined petitioner’s testimony that letters he sent to one of his victims and to her father were not sent for the purpose of causing the recipients further emotional suffering, but in order to provoke a retrial. 4. Due Process/Fair Trial/Cruel and Unusual Punishment. Petitioner contends that he was denied due process, a fair trial, and freedom from cruel and unusual punishment in that: a. Testimony was erroneously introduced regarding the effects of the offenses on a surviving victim and her family.

This prejudicial evidence, petitioner alleges, was improperly discussed and relied on by members of the jury as nonstatutory aggravating evidence. b. The jury discussed and considered the belief that a sentence of life without possibility of parole would not be adequate to ensure incarceration of petitioner and that imposition of the death sentence was necessary to protect society. c. The jury was misled regarding its sentencing responsibilities and discussed and believed that only evidence that would mitigate the gravity of the crime itself could be properly considered. d.

There was invidious and systematic discrimination by prosecutors in seeking the death penalty, and by jurors in imposing the death penalty, on the basis of the victims’ race, social status, and gender. Petitioner was, he alleges, singled out for capital treatment because of the characteristics of the victims. e. The imposition of the death penalty on petitioner was capricious because penologically relevant characteristics of the offense and his background are no more serious or deserving of the death penalty than those in a far greater number of similar cases with noncapital dispositions. III.

Limitations on Habeas Corpus Relief As is apparent from a review of the above claims and the history of this case, many of the grounds asserted for relief are restatements or reformulations of arguments made and rejected on appeal or in the prior habeas corpus petition, while others are claims that could and should have been made on appeal. To the extent that new grounds for relief are stated, the petition fails to demonstrate that these claims could not have been asserted in the prior petition, or that any of the claims could not have been presented by a petition filed in conjunction with the appeal.

Before considering the possible merit of any claim, it is therefore appropriate to review the decisional and statutory law governing collateral attacks on judgments of conviction by petition for writ of habeas corpus. In addition, because no clear guidelines have emerged in our past cases, we consider when departure from those rules is warranted. A. Limitations on Collateral Attack. The rules governing postconviction habeas corpus relief recognize the importance of the “Great Writ," an importance reflected in its constitutional status, and in our past decisions.

Indeed, the writ has been aptly termed “the safe-guard and the palladium of our liberties” (In re Begerow (1901) 133 Cal. 349, 353 [65 P. 828]) and is “regarded as the greatest remedy known to the law whereby one unlawfully restrained of his liberty can secure his release . . . .” (Matter of Ford (1911) 160 Cal. 334, 340 [116 P. 757].) The writ has been available to secure release from unlawful restraint since the founding of the state. (Cal. Const, of 1849, art. I, § 5; Stats. 1850, ch. 122, p. 134. See, e.g., People v.

Smith (1850) 1 Cal. 9; Ex parte The Queen of the Bay (1850) 1 Cal. 157.) Our cases simultaneously recognize, however, the extraordinary nature of habeas corpus relief from a judgment which, for this purpose, is presumed valid (see People v.

Shipman (1965) 62 Cal.2d 226, 232 [42 Cal.Rptr. 1, 397 P.2d 993]; In re Bell (1942) 19 Cal.2d 488, 500 [122 P.2d 22]), the importance of finality of judgments (see In re McInturff (1951) 37 Cal.2d 876 [236 P.2d 22]), and the interest of the state in the prompt implementation of its laws. (See, e.g., In re Arguello (1969) 71 Cal.2d 13, 17 [76 Cal.Rptr. 633, 452 P.2d 921].) Procedural rules have been established by our past decisions to govern petitions for writs of habeas corpus.

Such rules are necessary both to deter use of the writ to unjustifiably delay implementation of the law, and to avoid the need to set aside final judgments of conviction when retrial would be difficult or impossible. (See In re Dixon (1953) 41 Cal.2d 756,761 [264 P.2d 513] [Even when the claim involves an asserted denial of constitutional rights, “[i]t would obviously be improper to permit a collateral attack because of claimed errors in the determination of the facts after expiration of the time for appeal when evidence may have disappeared and witnesses may have become unavailable.”].) It has long been required that a petitioner explain and justify any significant delay in seeking habeas corpus relief. “[I]t is the practice of this court to require that one who belatedly presents a collateral attack such as this explain the delay in raising the question.” (In re Swain (1949) 34 Cal.2d 300, 302 [209 P.2d 793].) In Swain, we noted that such explanation was “particularly necessary” where a petitioner has made prior attacks on the validity of the judgment without raising the issues. (Ibid.) The burden is one placed even on indigent petitioners appearing in propria persona, and is not met by an assertion of counsel that he or she did not represent the petitioner earlier.

It is also the general rule that issues resolved on appeal will not be reconsidered on habeas corpus (In re Waltreus (1965) 62 Cal.2d 218, 225 [42 Cal.Rptr. 9, 397 P.2d 1001]), and, “ ‘in the absence of special circumstances constituting an excuse for failure to employ that remedy, the writ will not lie where the claimed errors could have been, but were not, raised upon a timely appeal from a judgment of conviction.’ (In re Dixon, 41 Cal.2d 756, 759 [264 P.2d 513]; in accord People v.

Morrison, 4 Cal.3d 442, 443, fn. 1 [93 Cal.Rptr. 751, 482 P.2d 663]; In re Black, 66 Cal.2d 881, 886-887 [59 Cal.Rptr. 429, 428 P.2d 293]; In re Shipp, 62 Cal.2d 547, 551-553 [43 Cal.Rptr. 3, 399 P.2d 571].)” (In re Walker (1974) 10 Cal.3d 764, 773 [112 Cal.Rptr. 177, 518 P.2d 1129].) “Without this usual limitation of the use of the writ, judgments of conviction of crime would have only a semblance of finality.” (In re McInturff, supra, 37 Cal.2d 876, 880.) For the same reasons, whether raised in a petition for writ of habeas corpus or by coram nobis, newly discovered evidence is a basis for relief only if it undermines the prosecution’s entire case.

It is not sufficient that the evidence might have weakened the prosecution case or presented a more difficult question for the judge or jury. (In re Hall (1981) 30 Cal.3d 408, 417 [179 Cal.Rptr. 223, 637 P.2d 690]; In re Weber (1974) 11 Cal.3d 703, 724 [114 Cal.Rptr. 429, 523 P.2d 229]; In re Branch (1969) 70 Cal.2d 200, 215 [74 Cal.Rptr. 238, 449 P.2d 174].) “[A] criminal judgment may be collaterally attacked on the basis of ‘newly discovered’ evidence only if the ‘new’ evidence casts fundamental doubt on the accuracy and reliability of the proceedings.

At the guilt phase, such evidence, if credited, must undermine the entire prosecution case and point unerringly to innocence or reduced culpability.” (People v. Gonzalez (1990) 51 Cal.3d 1179, 1246 [275 Cal.Rptr. 729, 800 P.2d 1159].) The rule is similar when a petitioner attributes the failure to discover and present the evidence at trial to trial counsel’s alleged incompetence. The presumption that the essential elements of an accurate and fair proceeding were present is not applicable in that case, as it is when the basis on which relief is sought is newly discovered evidence. (Strickland v.

Washington (1984) 466 U.S. 668, 694 [80 L.Ed.2d 674, 697-698, 104 S.Ct. 2052]; People v. Gonzalez, supra, 51 Cal.3d 1179, 1246.) Nonetheless, the petitioner must establish “prejudice as a ‘demonstrable reality,’ not simply speculation as to the effect of the errors or omissions of counsel. [Citation.] . . . The petitioner must demonstrate that counsel knew or should have known that further investigation was necessary, and must establish the nature and relevance of the evidence that counsel failed to present or discover.” (People v.

Williams (1988) 44 Cal.3d 883, 937 [245 Cal.Rptr. 336, 751 P.2d 395].) Prejudice is established if there is a reasonable probability that a more favorable outcome would have resulted had the evidence been presented, i.e., a probability sufficient to undermine confidence in the outcome. (Strickland v. Washington, supra, 466 U.S. 668, 693-694 [80 L.Ed.2d at pp. 697-698]; People v. Williams, supra, 44 Cal.3d 883, 944-945.) The incompetence must have resulted in a fundamentally unfair proceeding or an unreliable verdict. (Lockhart v.

Fretwell (1993) 506 U.S. _, _ [122 L.Ed.2d 180, 113 S.Ct. 838].) Postconviction habeas corpus attack on the validity of a judgment of conviction is limited to challenges based on newly discovered evidence, claims going to the jurisdiction of the court, and claims of constitutional dimension. (See In re Hall (1981) 30 Cal.3d 408, 420 [179 Cal.Rptr. 223, 637 P.2d 690]; In re Bell, supra, 19 Cal.2d 488, 493-496.) However, some trial errors, even though of constitutional dimension, are not cognizable on habeas corpus because the error “ ‘carries with it no risk of convicting an innocent person.’ ” (In re Sterling (1965) 63 Cal.2d 486, 487 [47 Cal.Rptr. 205, 407 P.2d 5].) In Sterling, as it had in In re Lessard (1965) 62 Cal.2d 497, 503 [42 Cal.Rptr. 583, 399 P.2d 39], the court adopted the view expressed by then-Justice Traynor in In re Harris (1961) 56 Cal.2d 879, 880 [16 Cal.Rptr. 889, 366 P.2d 305] (conc. opn. of Traynor, J.).

Justice Traynor had reasoned that the erroneous admission of unlawfully seized evidence presented no risk that an innocent defendant might be convicted, and “[t]he risk that the deterrent effect of the [exclusionary] rule will be compromised by an occasional erroneous decision refusing to apply it is far outweighed by the disruption of the orderly administration of justice that would ensue if the issue could be relitigated over and over again on collateral attack.” (Id., at p. 884, conc. opn. of Traynor, J.) That reasoning persuaded the court that Fourth Amendment violations need not be considered on habeas corpus even when the issue had not been raised on appeal. “Failure to exercise these readily available remedies will ordinarily constitute such a deliberate bypassing of orderly state procedures as to justify denial of federal as well as state collateral relief.” (In re Sterling, supra, 63 Cal.2d at p. 489.) B.

Repeated Applications, Piecemeal Presentation of Claims, and Delay. As we have noted, this is the second petition for writ of habeas corpus by this petitioner. Several years after his conviction and the affirmance of his appeal, he repeats claims rejected when his initial petition was denied and seeks to raise claims that were not asserted in that petition. 1. Repetitious and piecemeal claims.

It has long been the rule that absent a change in the applicable law or the facts, the court will not consider repeated applications for habeas corpus presenting claims previously rejected. (See In re Terry (1971) 4 Cal.3d 911, 921, fn. 1 [95 Cal.Rptr. 31, 484 P.2d 1375]; In re Horowitz (1949) 33 Cal.2d 534, 546 [203 P.2d 513]; In re De La Roi (1946) 28 Cal.2d 264, 275 [169 P.2d 363]; In re Miller (1941) 17 Cal.2d 734, 735 [112 P2d 10].) The court has also refused to consider newly presented grounds for relief which were known to the petitioner at the time of a prior collateral attack on the judgment (See In re Horowitz, supra, 33 Cal.2d 534, 546-547; In re Drew (1922) 188 Cal. 717, 722 [207 P. 249].) The rule was stated clearly in In re Connor, supra, 16 Cal.2d 701,705: “In this state a defendant is not permitted to try out his contentions piecemeal by successive proceedings attacking the validity of the judgment against him.” These procedural bars to habeas corpus relief have been termed “discretionary,” however (see In re Terry, supra, 4 Cal.3d 911, 921. fn. 1; In re Bevill (1968) 68 Cal.2d 854, 863, fn. 9 [69 Cal.Rptr. 599, 442 P.2d 679]), and have been described as a “policy” of the court. (See In re Horowitz, supra, 33 Cal.2d 534, 546.) And, while In re Horowitz, supra, 33 Cal.2d 534, In re Connor, supra, 16 Cal.2d 701, 705, and In re Drew, supra, 188 Cal. 717, condemned piecemeal presentation of claims, none expressly noted the problem of belated presentation of claims that may not have been identified, but with due diligence should have been known to the petitioner and presented in an earlier petition.

On occasion, the merits of successive petitions have been considered regardless of whether the claim was raised on appeal, or in a prior petition, and without consideration of whether the claim could and should have been presented in a prior petition. (See In re Walker, supra, 10 Cal.3d 764; In re Crumpton (1973) 9 Cal.3d 463, 467 [106 Cal.Rptr. 770, 507 P.2d 74], In re Terry, supra, 4 Cal.3d 911; In re Bevill, supra, 68 Cal.2d 854.) Our past decisions have thereby suggested that the rules against piecemeal presentation of claims and repetitious petitions are subject to undefined exceptions and that the court may be willing to entertain multiple collateral attacks on a judgment notwithstanding the potential for abusive writ practice.

As a result, many prisoners present petitions raising claims that are or should be barred. They do so either in the hope that this court will find their claims sufficiently compelling to justify an exception to the rules, or because the possibility that this court will excuse a procedural default makes the petition a necessity in order to exhaust the petitioners’ state remedies for purposes of review in federal court.

Respondent Director of the Department of Corrections, noting the uncertainty created by our past practice, asks us to identify with greater precision the circumstances which will justify departure from the usual limitations on availability of the writ identified above. He argues that the court already has or should adopt a “cause and prejudice” rule like that applicable in the federal court to successive petitions. Under that rule a petitioner “must show cause for the procedural default and prejudice attributable thereto” (Murray v.

Carrier (1986) 477 U.S. 478, 485 [91 L.Ed.2d 397, 406-407, 106 S.Ct. 2639]) to obtain review of a defaulted claim. (See also McCleskey v. Zant, supra, 499 U.S. 467 [113 L.Ed.2d 517, 111 S.Ct. 1454].) Under that approach, no claims which the petitioner failed to include in the initial habeas corpus petition would be considered unless the petitioner demonstrates (1) diligence in pursuing investigation of potential claims, (2) some external cause for the failure to raise them in the prior petition, and (3) prejudice resulting from the error of which he or she complains.

Petitioner argues that this court does not have an “abuse of the writ” doctrine and should not follow the lead of the federal court in restricting successive habeas corpus petitions. He contends that

section 1475 (discussed post) and sound policy mandate that the court consider successive petitions on their merits not only when the petition alleges a change in the applicable law or facts, but in any case in which no order to show cause issued on a prior petition or petitions. We are not persuaded that either

section 1475 or sound policy mandates or warrants consideration of unjustified successive collateral attacks on a judgment of conviction. a. Abuse of the writ. This court has never condoned abusive writ practice or repetitious collateral attacks on a final judgment.

Entertaining the merits of successive petitions is inconsistent with our recognition that delayed and repetitious presentation of claims is an abuse of the writ. “It is the policy of this court to deny an application for habeas corpus which is based upon grounds urged in a prior petition which has been denied, where there is shown no change in the facts or the law substantially affecting the rights of the petitioner. [Citations.] And as to the presentation of new grounds based on matters known to the petitioner at the time of previous attacks upon the judgment, in In re Drew (1922) 188 Cal. 717, 722 [207 P. 249], it was pointed out that the applicant for habeas corpus ‘not only had his day in court to attack the validity of this judgment, but. . . had several such days, on each of which he could have urged this objection, but did not do so’; it was held that ‘The petitioner cannot be allowed to present his reasons against the validity of the judgment against him piecemeal by successive proceedings for the same general purpose.’ ” (In re Horowitz, supra, 33 Cal.2d 534, 546-547.) When a habeas corpus petition is denied on the merits, the court has determined that the claims made in that petition do not state a prima facie case entitling the petitioner to relief.

A successive petition presenting additional claims that could have been presented in an earlier attack on the judgment is, of necessity, a delayed petition. Petitioner offers no persuasive reason for routinely permitting consideration of the merits of such claims. Were we to do so we would sanction a practice which unreasonably delays execution of judgment and imposes undue burdens on the state both in responding to claims made in delayed petitions and in marshalling stale evidence when retrial is necessary.

Successive petitions also waste scarce judicial resources as the court must repeatedly review the record of the trial in order to assess the merits of the petitioner’s claims and assess the prejudicial impact of the constitutional deprivation of which he complains. Willingness by the court to entertain the merits of successive petitions seeking relief on the basis of the same set of facts undermines the finality of the judgment. Moreover, such piecemeal litigation prevents the positive values of deterrence, certainty, and public confidence from attaching to the judgment.

The values that inhere in a final judgment are equally threatened by petitions for collateral relief raising claims that could have been raised in a prior petition. b.

Section

Section 1475 does not alter our conclusion that such petitions may and should be denied.

Section 1475 does not limit the court’s power to decline to consider successive petitions on their merits. The court may require an explanation for the failure to include the claim or claims on which such petitions are based in the prior petition—a justification sufficient to outweigh the importance of finality of judgments and to justify the imposition on the court of the burden of reviewing multiple petitions, each of which presents claims of prejudicial error or conduct and demands repeated reviews of the record of the trial proceedings. The legislative purpose underlying

section 1475 is to control abuses of the writ and thereby spare courts with jurisdiction over habeas corpus petitions the burden of repetitious petitions. It now provides in pertinent part: “If the writ has been granted by any court or a judge thereof and after the hearing thereof the prisoner has been remanded, he shall not be discharged from custody by the same or any other court of like general jurisdiction, unless upon some ground not existing in fact at the issuing of the prior writ.

Should the prisoner desire to urge some point of law not raised in the petition for or at the hearing upon the return of the prior writ, then, in case such prior writ had been returned or returnable before a superior court or a judge thereof, no writ can be issued upon a second or other application except by the appropriate court of appeal or some judge thereof, or by the Supreme Court or some judge thereof, and in such an event such writ must not be made returnable before any superior court or any judge thereof.

In the event, however, that the prior writ was returned or made returnable before a court of appeal or any judge thereof, no writ can be issued upon a second or other application except by the Supreme Court or some judge thereof, and such writ must be made returnable before said Supreme Court or some judge thereof.” (§ 1475.) Petitioner notes that this provision bars repeated applications to the same level of court only when a petition raises the same issue as a prior petition and only if a writ issued in response to the prior petition.

He assumes on that basis that the Legislature has implicitly permitted successive petitions raising new claims or repeated applications for relief on the same ground if no writ or order to show cause has issued and there has been no hearing on the claim or claims. The history of

section 1475 suggests otherwise. The statute does not compel courts to consider successive petitions on their merits, nor does it purport to restrict the court’s inherent power to control its calendar and prevent abuse of the writ.

Section 1475 was initially codified in 1872 as part of the Penal Code of 1872. The Penal Code reenacted the preexisting statutes implementing the inherent and constitutional authority of a court of record to grant the writ (Stats. 1863, ch. 260, p. 334; Stats. 1859, ch. 19, p. 15), and restricted the authority of the county courts to issuance of the writ on petitions by persons located within the county.

That restriction, however, reflected the initial legislative attempt to control abuse of the writ, and the recognition that this court had already been forced to impose judicial restrictions to curb judge-shopping and repetitious petitions. This court first attempted to do so in Ex parte Ellis (1858) 11 Cal. 222. Ellis, who had been convicted of a misdemeanor in El Dorado County, sought a writ returnable before the Supreme Court.

The act concerning the writ of habeas corpus (Stats. 1850, ch. 122, p. 334) then provided that the writ might be granted by the Supreme Court, any judge of the court, or any district or county court or any judge of those courts, and required that it issue without delay and be heard immediately after the return.

The court noted the “frequency with which applications for the writ are made to this tribunal on the part of persons in custody in other counties” (Ex parte Ellis, supra, 11 Cal. at p. 223), and undertook a construction of the statute which restricted issuance of the writ to the county in which the petitioner was held. We reasoned that the Legislature could not have contemplated giving a misdemeanant “the privilege of selecting from the judiciary of the whole State the individual to whom he prefers to make his application” or allowing a petitioner to make applications to judges of other counties.

Construing the statute in that manner “would lead to possible injustice, contradiction and absurdity.” (Id., at p. 224.) Therefore, we held, the writ should not be issued to run out of the county unless the local judge refused or was unable to act. “This secures the right of a citizen and of the people, and deprives a process intended to be used for beneficial purposes of the power to injure the public interests by possible escapes, and delays, and onerous costs.

The mere caprice of the prisoner ought not to prevail against the interests of the people and the public convenience.” (Id., at p. 225.) An 1862 amendment of the Constitution of 1849 and inclusion of this restriction in

section 1475 when the Penal Code was adopted in 1872 were not sufficient to control abuse, however. The Legislature deemed it necessary to amend

section 1475 in 1905 and again in 1907 (see Stats. 1905, ch. 544, § 1, p. 706; Stats. 1907, ch. 286, § 1, p. 560) to curb continuing abuse of the writ. Because the denial of a petition for writ of habeas corpus was not appealable and a ruling denying a petition is not res judicata as to the issues raised (Matter of Ring (1865) 28 Cal. 247, 251; Matter of Perkins (1852) 2 Cal. 424, 430), the courts continued to be burdened with successive petitions.

The Legislature therefore acted to restrict petitions presented to the same level of court that had heard and rejected a prior petition, unless the petition stated a basis for relief that had not existed when the prior petition was denied. We have never construed

section 1475 as a grant of authority for the filing of any successive petition not expressly barred by the statute, however, and have continuously exercised our authority to protect the courts from imposition on their duties by repetitious writ petitions. Chief Justice Beatty did so in Ex parte Mogenson (1907) 151 Cal. 517 [91 P. 334], shortly after the 1907 amendment of

section 1475, explaining that he deemed it necessary to curb attempts to have a single justice of this court exercise habeas corpus jurisdiction to overrule a ruling of the Court of Appeal on a prior petition: “The authority of one justice of this court to make a writ of habeas corpus issued by himself returnable before the whole court was formerly exercised with great freedom—so much freedom, indeed, as to result in a serious detriment to the more important business of the court.

It was a favorite method with certain practitioners to present their petitions to some one justice, and often to several different justices in succession, asking for a writ returnable before the court, and if they could get the writ allowed in that way the whole court would be compelled on the day named in the writ to drop all other business for the purpose of hearing the return to a petition which would never have been granted if the court or a quorum of the justices had been consulted beforehand. ...[!]... The effect of [the 1907 amendment of

section 1475], as I understand it, is to put an end to the practice heretofore prevailing of going from one judge to another of no greater authority with the same petition for a writ of habeas corpus, in order to secure from one relief that has been denied by another. ...

H] As I construe ... the section, it does not mean that after the district court of appeal has by the unanimous decision of the three judges remanded a prisoner on habeas corpus a single justice of this court may issue a new writ upon a similar petition, returnable before himself, and upon the hearing overrule the decision of the district court of appeal and discharge the prisoner.” (151 Cal. at pp. 518-519.) When similar abuses continued in the form of petitions to a single justice of this court after denial of an earlier petition by the entire court, Chief Justice Angellotti extended the restriction to those petitions as well, even in cases in which no writ had issued, and intimated that successive petitions would not be entertained routinely by the court itself: “Not only was such [prior] application in regard to the same detention or restraint, but the grounds of the former application were the same as those now urged, with a greater degree of elaboration.

While it may be that under certain circumstances the court itself might feel warranted in entertaining a second application from a party regarding the same detention or restraint, it is manifest that no single member of the court, be he chief justice or associate justice, is warranted in granting a writ where the same has been denied as to the same detention or restraint by the whole court in Bank.” (Matter of Udell (1915) 171 Cal. 599, 600 [154 P. 23].) It is clear from these and the subsequent decisions of this court noted above, which have created additional limitations on petitions for writs of habeas corpus, that

section 1475 has never been construed as the sole limitation on successive petitions and that the Legislature has not by the enactment of that

section attempted to compel this court to entertain such petitions on their merits. As noted above, the court has emphasized that repetitious successive petitions are not permitted and, in In re Horowitz, supra, 33 Cal.2d 534, 546-547, In re Connor, supra, 16 Cal.2d 701, 705, and In re Drew, supra, 188 Cal. 717, 722, has condemned piecemeal presentation of known claims. Those decisions reflect policies that supplement legislative restrictions on habeas corpus; they also have as their purpose a curb on abuse of the writ of habeas corpus.

Before a successive petition will be entertained on its merits the petitioner must explain and justify the failure to present claims in a timely manner in his prior petition or petitions. 2. Justification for Delayed and/or Successive Petitions. Before 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.

This requirement is reasonable in view of the interest of the state in carrying out its judgments, the interest of the respondent in having the ability to respond to the petition and to retry the case should the judgment be invalidated, and the burden on the judicial system. In assessing a petitioner’s explanation and justification for delayed presentations of claims in the future, the court will also consider whether the facts on which the claim is based, although only recently discovered, could and should have been discovered earlier.

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. However, 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, or where the petitioner was unable to present his claim, the court will continue to consider the merits of the claim if asserted as promptly as reasonably possible.

And, as in the past, claims which are based on a change in the law which 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. With the exception of petitions which allege facts demonstrating that a fundamental miscarriage of justice has occurred, an exception to be addressed below, unjustified successive petitions will not be entertained on their merits. This petitioner, in common with others who have filed multiple petitions attacking the same judgment of conviction since McCleskey v.

Zant, supra, 499 U.S. 467 (hereafter McCleskey), was decided, states that his new claims were “developed” in response to McCleskey, which was decided after his earlier petition was filed. This petitioner does not allege that the factual and/or legal bases for these claims were unknown at the time the earlier petition was filed. Attempts to justify a failure to make all of a petitioner’s claims in the first petition by relying on the Supreme Court’s McCleskey decision are unpersuasive.

McCleskey construes and implements a federal statute governing successive petitions to federal courts by state prisoners. (Rules Governing [28 U.S.C.] § 2254 Cases in the U.S. Dist. Cts., rule 9(b) [Rule 9(b)].) The decision does not control the availability of relief in the courts of this state. (In re Shipp, supra, 62 Cal.2d 547, 553-554.) McCleskey is instructive, however, since the high court recognized there that abusive writ practice has a serious impact on the states’ administration of criminal justice.

In McCleskey, the Supreme Court reviewed the statutory and common law efforts to control abuse of the writ of habeas corpus in the federal courts.

The high court concluded that abuse in the form of successive petitions exists when a claim has been deliberately abandoned earlier and is also found when a claim presented in a subsequent petition could have been presented in an earlier petition. (499 U.S. at p. 488 [113 L.Ed.2d at pp. 541-542.].) Recognizing that the federal courts have equitable discretion to excuse the failure to include all claims in the first habeas corpus petition, the Supreme Court attempted to resolve the question which often faces this court—how to determine whether a petitioner has a legitimate excuse for failure to raise claims at the appropriate time, i.e., in a prior petition.

The high court clearly recognized the interests which California decisions governing successive and delayed petitions have long reflected: “[T]he writ strikes at finality. One of the law’s very objects is the finality of its judgments. Neither innocence nor just punishment can be vindicated until the final judgment is known. ‘Without finality, the criminal law is deprived of much of its deterrent effect.’ Teague v. Lane, 489 U.S. 288, 309 [103 L.Ed.2d 334, 354-355, 109 S.Ct. 1060] (1989).

And when a habeas petitioner succeeds in obtaining a new trial, the ‘"erosion of memory” and “dispersion of witnesses” that occur with the passage of time,’ Kuhlmann v. Wilson [(1986) 477 U.S. 436] at 453 [91 L.Ed.2d 364, 106 S.Ct. 2616], prejudice the government and diminish the chances of a reliable criminal adjudication. . . . “Far more severe are the disruptions when a claim is presented for the first time in a second or subsequent. . . habeas petition. If ‘[collateral review of a conviction extends the ordeal of trial for both society and the accused,’ Engle v.

Isaac [(1982) 456 U.S. 107] at 126-127 [71 L.Ed.2d at pp. 799-800], the ordeal worsens during subsequent collateral proceedings. Perpetual disrespect for the finality of convictions disparages the entire criminal justice system.” (499 U.S. at pp. 491-492 [113 L.Ed.2d at pp. 542-543].) The court then adopted for purposes of federal habeas corpus review of state criminal convictions the “cause and prejudice” standard analogous to that used in determining if a state procedural default bars federal review (see Wainwright v.

Sykes (1977) 433 U.S. 72, 88 [53 L.Ed.2d 594, 608-609, 97 S.Ct. 2497]: “In procedural default cases, the cause standard requires the petitioner to show that ‘some objective factor external to the defense impeded counsel’s efforts’ to raise the claim in state court. Murray v. Carrier, [supra,] 477 U.S. [478] at 488 [91 L.Ed.2d at pp. 408-409]. Objective factors that constitute cause include ‘’’interference by officials” ’ that makes compliance with the state’s procedural rules impracticable, and ‘a showing that the factual or legal basis for a claim was not reasonably available to counsel.’ Ibid.

In addition, constitutionally ‘ineffective assistance of counsel ... is cause.’ Ibid. Attorney error short of ineffective assistance of counsel, however, does not constitute cause and will not excuse a procedural default. Id., at 486-488 [91 L.Ed.2d at pp. 407-409]. Once the petitioner has established cause, he must show ‘’’actual prejudice” resulting from the errors of which he complains.’ United States v.

Frady, 456 U.S. 152, 168 [71 L.Ed.2d 816, 102 S.Ct. 1584] (1982). “Federal courts retain the authority to issue the writ of habeas corpus in a further, narrow class of cases despite a petitioner’s failure to show cause for a procedural default. These are extraordinary instances when a constitutional violation probably has caused the conviction of one innocent of the crime.

We have described this class of cases as implicating a fundamental miscarriage of justice.” (499 U.S. at p. 494 [113 L.Ed.2d at pp. 544-545].) Under the rule for federal practice announced in McCleskey, the petitioner will bear the burden, once the government pleads abuse of the writ, to disprove abuse by showing cause for the failure to raise his claims in an earlier petition and prejudice therefrom. That decision is irrelevant to petitioner’s burden in this court, however.

The suggestion that the decision of McCleskey justifies piecemeal presentation of claims to this court implies both that there was no prior federal authority identifying piecemeal presentation of claims as an abuse of the writ, and that there has been no comparable state requirement governing habeas corpus claims. Neither proposition is supportable. As we have shown, piecemeal presentation of known claims and repetitious presentation of previously denied claims have not been condoned in this state. The federal courts have also disapproved piecemeal presentation of claims.

Considering a series of repetitious federal habeas corpus petitions, stays of execution of judgment, and appeals by a state prisoner in Barefoot v. Estelle (1983) 463 U.S. 880 [77 L.Ed.2d 1090, 103 S.Ct. 3383], the Supreme Court recognized the interest of the state and the potential for abuse of the writ. “ ‘To the extent that [second and successive habeas corpus petitions] involve the danger that a condemned inmate might attempt to use repeated petitions and appeals as a mere delaying tactic, the State has a quite legitimate interest in preventing such abuses of the writ.’ . . . Rule 9(

b) states that ‘a second or successive petition may be dismissed if the judge finds that it fails to allege new or different grounds for relief... [or if] the failure of the petitioner to assert those grounds in a prior petition constituted an abuse of the writ.’ See Sanders v. United States, 373 U.S. 1, 18 [10 L.Ed.2d 148, 162-163, 83 S.Ct. 1068] (1963); Advisory Committee Note to Rule 9(b), 28 U.S.C., p. 273.” (463 U.S. at p. 895 [77 L.Ed.2d at pp. 1105-1106].) Thereafter, in Woodard v.

Hutchins (1984) 464 U.S. 377 [78 L.Ed.2d 541, 104 S.Ct. 752], the Supreme Court, in a per curiam order, vacated a stay of execution granted by a judge of the United States Court of Appeals for the Fourth Circuit.

Justice Powell, joined by four other justices, concurred, observing that the underlying petition for writ of habeas corpus was a successive petition filed without explanation for failure to raise the claims earlier or to include them in an earlier petition (464 U.S. at pp. 377-378 [78 L.Ed.2d at p. 543] (conc. opn. of Powell, J.)), and characterizing the filing as an abuse of the writ. “This case is a clear example of the abuse of the writ that § 2244(

b) was intended to eliminate. All three . . . claims could and should have been raised in his first petition for federal habeas corpus.” (Id., at p. 379 [78 L.Ed.2d at p. 544].) The opinion notes that there was no evidence that the claims had been deliberately withheld, but no explanation was offered for the failure to raise the claims earlier. (Id., at p. 379, fn. 3 [78 L.Ed.2d at p. 544].) While a major concern of the court was that the second habeas corpus petition in Woodward v.

Hutchins, supra, had been filed on the eve of execution, the court’s statement that failure to include all claims in the original petition was an abuse of the writ was not so limited. A petitioner cannot reasonably claim that McCleskey constituted a change in federal habeas corpus procedure that somehow justified a failure to include all known claims in the initial state petition.

Petitioner argues that a prisoner’s own knowledge of the basis for a claim should be irrelevant if there has been no “previous development of the claim combining all the relevant historical facts and a legal theory.” This is not the rule. A prisoner who has knowledge of the facts upon which he believes that he is entitled to relief must explain any delay in seeking relief. (In re Shipp, supra, 62 Cal.2d 547, 553.) He may rely on counsel who then represents him to include the claim in a petition to be filed by counsel if he has alerted counsel to the issue.

If he is not represented by counsel, he need not “develop” the legal theory on which the claim is based, but must fully and fairly state the facts which underlie the claim for relief. (In re Swain, supra, 34 Cal.2d 300, 304.) Petitioner concedes that whether there has been a change of counsel is irrelevant to whether the merits of claims raised for the first time in a successive petition should be entertained.

The rule has been that the court will look to what petitioner and/or his counsel knew at the time of the appeal or the filing of the first habeas corpus petition, and demand that the failure to raise all issues in a single, timely petition be justified. Any other rule would put a premium on repeated changes of counsel, and would wholly undermine the policy underlying the court’s refusal to consider the merits of successive petitions offering piecemeal presentation of claims.

And, as we have indicated above, in the future a habeas corpus petitioner, like a petitioner who mounts a collateral attack by petition for writ of coram nobis, “ ‘must show that the facts upon which he relies were not known to him and could not in the exercise of due diligence have been discovered by him at any time substantially earlier than the time of his motion for the writ.’ ” (People v. Shipman, supra, 62 Cal.2d 226, 230.) In limited circumstances, consideration may be given to a claim that prior habeas corpus counsel did not competently represent a petitioner.

An imprisoned defendant is entitled by due process to reasonable access to the courts, and to the assistance of counsel if counsel is necessary to ensure that access, but neither the Eighth Amendment nor the due process clause of the United States Constitution gives the prisoner, even in a capital case, the right to counsel to mount a collateral attack on the judgment. (Murray v.

Giarratano (1989) 492 U.S. 1 [106 L.Ed.2d 1, 109 S.Ct. 2765].) This court has held, however, that if a petition attacking the validity of a judgment states a prima facie case leading to issuance of an order to show cause, the appointment of counsel is demanded by due process concerns. (People v. Shipman, supra, 62 Cal.2d 226, 231-232. Cf. Coleman v.

Thompson (1991) 501 U.S. _ [115 L.Ed.2d 640, 111 S.Ct. 2546].) Regardless of whether a constitutional right to counsel exists, a petitioner who is represented by counsel when a petition for writ of habeas corpus is filed has a right to assume that counsel is competent and is presenting all potentially meritorious claims. (But see, Coleman v. Thompson, supra, 501 U.S__[115 L.Ed.2d 640] [where no right to counsel exists there can be no constitutionally ineffective counsel]; Antone v.

Dugger (1984) 465 U.S. 200 [79 L.Ed.2d 147, 104 S.Ct. 962] [failure to raise claims in first petition not excused on ground that counsel was rushed].) If, therefore, counsel failed to afford adequate representation in a prior habeas corpus application, that failure may be offered in explanation and justification of the need to file another petition.

The petitioner must, however, allege with specificity the facts underlying the claim that the inadequate presentation of an issue or omission of any issue reflects incompetence of counsel, i.e., that the issue is one which would have entitled the petitioner to relief had it been raised and adequately presented in the initial petition, and that counsel’s failure to do so reflects a standard of representation falling below that to be expected from an attorney engaged in the representation of criminal defendants.

However, if the petitioner is aware of facts that may be a basis for collateral attack, and of their potential significance, he may not fault counsel for failing to pursue that theory of relief if the petitioner failed to advise counsel of those facts. 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.

Nor will the court consider on the merits successive petitions attacking the competence of trial or prior habeas corpus counsel which reflect nothing more than the ability of present counsel with the benefit of hindsight, additional time and investigative services, and newly retained experts, to demonstrate that a different or better defense could have been mounted had trial counsel or prior habeas corpus counsel had similar advantages.

Petitioner states that the new claims made here would have been included in the prior petition had this court not “summarily and preemptively denied that petition” and that the additional claims had not been “developed” sufficiently to enable him to include them in that petition at the time it was filed. The court must and will assume, however, that a petition for writ of habeas corpus includes all claims then known to the petitioner.

Summary disposition of a petition which does not state a prima facie case for relief is the rule. (People v. Gonzalez, supra, 51 Cal.3d 1179, 1258-1259; see also, 6 Witkin & Epstein, Cal. Criminal Law (2d ed. 1989) Extraordinary Writs, § 3361, p. 4170.) This practice is too well established (see Ex parte Walpole (1890) 84 Cal. 584 [24 P. 308]) to warrant any inference that petitioners are justified in believing that the court will routinely delay action on a filed petition to permit amendment and supplementation of the petition.

A petitioner who is aware of facts adequate to state a prima facie case for habeas corpus relief should include the claim based on those facts in the petition even if the claim is not fully “developed.” If the petition is delayed because the petitioner is not able to state a prima facie case for relief on all of the bases believed to exist, the delay in seeking habeas corpus relief may be justified when the petition is ultimately filed if the petitioner can demonstrate that (1) he had good reason to believe other meritorious claims existed, and (2) the existence of facts supporting those claims could not with due diligence have been confirmed at an earlier time.

Petitioner’s assertion that he would have added additional claims to his prior petition had it not been denied neither explains nor justifies the failure to include the claims in the prior petition. (Cf.

In re Haygood (1975) 14 Cal.3d 802 [122 Cal.Rptr. 760, 537 P.2d 880] [counsel, appointed after issuance of an order to show cause on petition prepared in propria persona by prison inmate, reviewed record and discovered additional ground for relief of which the petitioner had been unaware].) The court may grant leave to file a supplemental petition (see, e.g., In re Haygood, supra, 14 Cal.3d 802, 805), but has no obligation either to do so or to delay action on a petition in the expectation that a supplement to the petition will be forthcoming.

The law mandates prompt disposition of habeas corpus petitions (§ 1476), and the interest of the state in the finality of judgment weighs heavily against delayed disposition of pending petitions. (See In re Eli (1969) 71 Cal.2d 214, 218 [77 Cal.Rptr. 665, 454 P.2d 337]; In re Arguello, supra, 71 Cal.2d 13, 17; In re Anderson (1968) 69 Cal.2d 613, 621 [73 Cal.Rptr. 21, 447 P.2d 117].) Although, as we have noted, petitioner has not adequately explained his failure to include all of his present claims in his prior petition, our disposition of the present petition does not rest on that omission.

Instead, we turn to his delay in making the new claims and in supplementing the evidentiary basis for claims previously made. 3. Delay. Petitioner argues that, as to his newly presented claims, his petition is timely under “settled law” and because his appeal was taken prior to this court’s publication of express timeliness standards for petitions filed in capital cases. (See Supreme Court Policies Regarding Cases Arising From Judgments of Death, eff. June 6, 1989, mod. eff.

December 21, 1992, stds. 1-1.1 to 1-3 [Policies].) Petitioner asserts that counsel began their investigation as soon as this court promulgated those Policies which govern habeas corpus in capital cases. In June 1989 counsel began investigating possible bases for habeas corpus in a case in which judgment had been imposed in February 1985. Almost two years after the Policies were adopted the first petition was filed. This second petition, filed five months after the first, was filed more than two years after publication of the Policies.

Even before June 1989, a habeas corpus petitioner who had knowledge that grounds for a habeas corpus petition existed was on notice that any substantial delay in filing a petition after the grounds became known had to be justified. (In re Stankewitz, supra, 40 Cal.3d 391, 396, fit. 1; People v. Jackson (1973) 10 Cal.3d 265, 268 [110 Cal.Rptr. 142, 514 P.2d 1222].) Stankewitz refutes any suggestion that the petitioner could delay filing the petition until the judgment was affirmed.

The citation of Stankewitz in the Policies made it clear that the requirement that delay be justified applies to all habeas corpus petitions, including those by defendants in capital cases. Petitioner’s argument that a petition filed promptly after affirmance of a judgment on appeal is timely presupposes a rule holding that the more prolonged the appellate process, the greater the justification for delay in seeking habeas corpus relief. That is not and has never been the practice in this state.

It would be particularly unacceptable in capital cases where the time from judgment to decision of the appeal is often several years during which there is increasing difficulty in determining the facts underlying the petition and, thus, in retrying the case, if necessary.

Our decisions have consistently required that a petitioner explain and justify any substantial delay in presenting a claim. (In re Swain, supra, 34 Cal.2d 300, 304.) “It is also the rule that ‘a convicted defendant must fully disclose his reasons for delaying in the presentation of the facts upon which he would have a final judgment overturned. (In re Wells, [(1967)] 67 Cal.2d 873, 875 . . . ; In re Shipp, supra, 62 Cal.2d 547, 553; In re Swain, [supra,] 34 Cal.2d 300, 304. . . .)” (In re Walker, supra, 10 Cal.3d 764, 774.) The Policies did not create or modify the timeliness requirements applicable to all habeas corpus petitions except insofar as they (1) establish a presumption of timeliness if a petition by a capital defendant is filed within 90 days of the final due date for the filing of an appellant’s reply brief (Policies, std. 1-1.1); and (2) take into account this court’s decision in In re Stankewitz, supra, 40 Cal.3d 391, when evaluating the timeliness of a habeas corpus petition in a capital case (Policies, std. 1-1.3).

The Policies did, for the first time, impose an express obligation on counsel representing appellants in capital cases to investigate possible bases for habeas corpus. (Policies, std. 1-1.) This obligation, which counsel in noncapital cases do not share, is limited, however, to an investigation of potentially meritorious grounds for habeas corpus which have come to counsel’s attention in the course of preparing the appeal.

The appointment does not impose on counsel an obligation to conduct an unfocused investigation having as its object uncovering any possible factual basis for a collateral attack on the judgment. Only an investigation into specific facts known to counsel which could reasonably lead to a potentially meritorious habeas corpus claim is anticipated and required. When the factual basis for a claim is already known, the claim must be presented promptly unless facts known to counsel suggest the existence of other potentially meritorious claims which cannot be stated without additional investigation.

The complexity of capital cases and the resultant difficulty that appellate counsel appointed long after trial and conviction may have in determining if a basis for habeas corpus may exist is recognized in the Policies. Where the presumption of timeliness is not applicable, Policies, standards 1-1.2 and 1-1.3 govern. Those standards reflect and incorporate into the Policies the preexisting requirement that any substantial delay in the filing of a petition after the factual and legal bases for the claim are known or should have been known must be explained and justified.

Policies, standard 1-1.2 provides: “A petition filed more than 90 days after the final due date for the filing of appellant’s reply brief on the direct appeal may establish absence of substantial delay if it alleges with specificity facts showing the petition was filed within a reasonable time after petitioner or counsel became aware of information indicating a factual basis for the claim and became aware, or should have become aware, of the legal basis for the claim.” (Italics added.) A petitioner who cannot establish timeliness under Policies, standard 1-1.2, may resort to Policies, standard 1-1.3, which provides: “Alternatively, a petition may establish absence of substantial delay if it alleges with specificity facts showing that although petitioner or counsel was aware of the factual and legal bases for the claim before January 16, 1986 (the date of finality of In re Stankewitz[, supra,] (1985) 40 Cal.3d 391-397, fn. 1) [220 Cal.Rptr. 382, 384, fn. 1, 708 P.2d 1260, 1262, fn. 1], the petition was filed within a reasonable time after that date.” We reject petitioner’s claim that he should be excused from compliance with the Policies.

Not only do the Policies incorporate preexisting timeliness requirements, but the plain language of the Policies demonstrates that their timeliness standards apply to all capital appeals, including those which arose prior to adoption of the Policies. In particular, the reference in the alternative timeliness standard 1-1.3 to In re Stankewitz, supra, 40 Cal.3d at pages 396-397, footnote 1, clearly demonstrates that the Policies anticipate that, insofar as known claims are involved, cases predating the effective date of the Policies will be brought within their reach.

Because counsel’s obligation to investigate possible claims was created only by the Policies, however, claims that were discovered only as a result of investigation commenced promptly after June 6, 1989, the date on which the Policies became effective, will be deemed timely if presented promptly after counsel became aware of them. This petition is not presumptively timely under Policies, standard 1-1.1 since it was not filed within 90 days after the final due date for the filing of petitioner’s reply brief on the direct appeal. We therefore look to Policies, standards 1-1.2 and 1-1.3.

Petitioner has not satisfied the requirements of either standard. The petition was not filed within a reasonable time after In re Stankewitz, supra, 40 Cal.3d 391, and petitioner does not allege with specificity when he became aware of the factual and legal bases for the claims he now raises. Thus, it is impossible to determine whether the claims are raised within a reasonable time after petitioner or counsel became aware of the factual and legal bases for his claims. Indeed, review of his claims reveals that many, if not most, are based on facts that were known at the time of trial.

We conclude that petitioner has failed to establish an absence of substantial delay in the filing of his petition. As Policies, standard 1-1.2 indicates, however, delayed presentation alone does not bar consideration of the merits of a habeas corpus petition.

The court will consider the reasons proffered for the delay: “[A] habeas corpus petition should be filed as promptly as the circumstances of the case allow. . . . [0]ne who seeks extraordinary relief . . . must point to particular circumstances sufficient to justify substantial delay . . . .” (In re Stankewitz, supra, 40 Cal.3d 391, 397, fn. 1.) “The cases clearly hold that petitioner must not only allege with particularity the facts upon which he would attack the final judgment but likewise his reasons for the delayed presentation of such facts.” (In re Shipp, supra, 62 Cal.2d 547, 553.) “We are entitled to and we do require of a convicted defendant that he allege with particularity the facts upon which he would have a final judgment overturned and that he fully disclose his reasons for delaying in the presentation of those facts.” (In re Swain, supra, 34 Cal.2d 300, 304.) In past cases we have accepted as adequate explanation and justification for a five-year delay between conviction and filing of a collateral attack on a judgment, a petitioner’s grade school education and inability to make use of information because he was not aware of the law, when, on learning of the law, the prisoner immediately sought the assistance of counsel. (In re Saunders, supra, 2 Cal.3d 1033, 1040; see also In re Perez (1966) 65 Cal.2d 224, 228 [53 Cal.Rptr. 414, 418 P.2d 6] [three-year delay between sentencing and filing of petition excused where petitioner had not completed seventh grade, was not knowledgeable about legal procedures, and diligently used resources available to prisoners for research and preparation of legal documents].) By contrast, an 11-year delay in making a claim of ineffective assistance of counsel based on failure to present evidence of diminished capacity known to the defendant at the time of trial and when earlier petitions had been filed was held to be unjustified in People v.

Jackson, supra, 10 Cal.3d 265, 268-269. Like the rule barring piecemeal presentation of claims, the requirement that a petitioner explain and justify delayed presentation of habeas corpus claims reflects recognition that a substantial delay will prejudice the respondent’s ability to answer the petition, respects the importance of finality of judgments to the state, and recognizes the difficulty of retrial in the event that a judgment is set aside on habeas corpus many years after the conviction.

Petitioner has made no effort to meet this requirement, relying instead on his unmeritorious assertion that the petition is timely. Petitioner has neither stated when he became aware of the legal and factual bases for his claims, nor justified the substantial delay in presenting the claims that it appears were known at or shortly after entry of judgment. C. Exceptions. The question remains when, if ever, should a California court entertain on the merits claims made in a habeas corpus petition which appears to be barred under decisions of this court imposing procedural limitations on the availability of the writ.

Any attempt to articulate a rule must recognize and accommodate the tension between the invocation of a procedural bar to habeas corpus relief and the function of the writ as the means by which a prisoner may obtain relief from an unwarranted conviction and/or sentence. 1. Federal court limitations. The Supreme Court considered a similar problem in Kuhlmann v.

Wilson (1986) 477 U.S. 436 [91 L.Ed.2d 364, 106 S.Ct. 2616], There the court applied the statutory restriction imposed by Congress on successive federal habeas corpus petitions by state prisoners: “ ‘[A] subsequent application for a writ of habeas corpus in behalf of such person need not be entertained by a court of the United States or a justice or judge of the United States unless the application alleges and is predicated on a factual or other ground not adjudicated on the hearing of the earlier application for the writ, and unless the court, justice, or judge is satisfied that the applicant has not on the earlier application deliberately withheld the newly asserted ground or otherwise abused the writ.’ ” (Id., at p. 449, fn. 10 [91 L.Ed.2d at p. 378], quoting 28 U.S.C. § 2244(b).) In his opinion for a plurality of the court, Justice Powell recognized that the statute had been adopted after Congress had recognized the need to weigh the petitioner’s interest against the interest of the state in administering its criminal justice system.

The court still had an obligation to consider whether the “ends of justice” would be served if a successive petition was dismissed, but should entertain a successive petition only in “rare instances.” It was therefore incumbent on the court to define “ends of justice” in a manner that would serve the purpose of giving finality to federal habeas corpus judgments while preserving the function of habeas corpus in providing relief from unjust incarceration. The issue facing the Supreme Court was, therefore, not unlike that before this court.

The plurality opinion recognized that even where earlier proceedings have determined that the trial was free from constitutional error, “a prisoner retains a powerful and legitimate interest in obtaining his release from custody if he is innocent of the charge for which he was incarcerated. That interest does not extend, however, to prisoners whose guilt is conceded or plain.” (Kuhlmann v.

Wilson, supra, 477 U.S. 436, 452 [91 L.Ed.2d 364, 379-380] (plur. opn. by Powell, J.).) The plurality then recognized the state’s countervailing interest in the finality of its judgments, deterrence of crime, punishment and rehabilitation of the prisoner, and the impact of a delayed reversal of the judgment on the ability of the state to retry a prisoner, and concluded: “[T]he ‘ends of justice’ require federal courts to entertain such petitions only where the prisoner supplements his constitutional claim with a colorable showing of factual innocence.

This standard was proposed by Judge Friendly more than a decade ago as a prerequisite for federal habeas review generally. [Citation.] As Judge Friendly persuasively argued then, a requirement that the prisoner come forward with a colorable showing of innocence identifies those habeas petitioners who are justified in again seeking relief from their incarceration.” (Kuhlmann v.

Wilson, supra, 477 U.S. 436, 454 [91 L.Ed.2d 364, 381-382] (plur. opn. of Powell, J.).) When the Supreme Court revisited the question of abuse of the writ of habeas corpus, and in particular the problem of piecemeal presentation of issues in successive petitions, in McCleskey, supra, 499 U.S. 467, the court concluded that if the petitioner did not establish cause for the failure to present a claim in a prior petition and prejudice from the error, a successive petition presenting a new claim should be entertained only if a “fundamental miscarriage of justice" would result from a failure to do so. (Id., at pp. 494-495 [113 L.Ed.2d at p. 545].) The court noted the reasoning of the plurality in Kuhlmann v.

Wilson, supra, 477 U.S. 436, and concluded that a “fundamental miscarriage of justice” would satisfy the “ends of justice” requirement of federal law. In so doing it apparently embraced the view of the Kuhlmann plurality that only imprisonment notwithstanding factual innocence would constitute that “fundamental miscarriage of justice,” stating: “The miscarriage of justice exception to cause serves as ‘an additional safeguard against compelling an innocent man to suffer an unconstitutional loss of liberty,’ Stone v.

Powell, 428 U.S. at 492-493, n 31 [49 L.Ed.2d at p. 1086], guaranteeing that the ends of justice will be served in full.” (499 U.S. at p. 495 [113 L.Ed.2d at pp. 545-546].) Then, after holding that the petitioner there had not met the “cause and prejudice” test for the late presentation of his claim that a confession had been elicited in violation of Massiah v.

United States (1964) 377 U.S. 201 [12 L.Ed.2d 246, 84 S.Ct. 1199], the court refused to entertain the claim on the merits to correct a “miscarriage of justice” because “[t]he Massiah violation, if it be one, resulted in the admission at trial of truthful inculpatory evidence which did not affect the reliability of the guilt determination. The very statement McCleskey now seeks to embrace confirms his guilt. . . .

McCleskey cannot demonstrate that the alleged Massiah violation caused the conviction of an innocent person.” (499 U.S. at p. 502 [113 L.Ed.2d at p. 550].) More recently, the Supreme Court considered how the factual innocence standard was to be applied in establishing whether a fundamental miscarriage of justice warranted consideration of a state prisoner’s successive habeas corpus petition attacking imposition of the death penalty. In Sawyer v.

Whitley (1992) 505 U.S. _ [120 L.Ed.2d 269, 112 S.Ct. 2514], the court held that to establish that the ends of justice warranted consideration of an abusive, successive, or defaulted constitutional claim, a state prisoner’s petition for writ of habeas corpus must show by clear and convincing evidence that, absent constitutional error or deprivation, no reasonable juror would have found the petitioner eligible for the death penalty.

Applying that standard in the case before it, the court noted that in Louisiana, the state in which the petitioner had been convicted of capital murder and sentenced to death, eligibility for the death penalty was based on conviction of capital murder and a finding that aggravating factors outweighed mitigating factors. Therefore, the sentencer was required to find the existence of at least one aggravating factor or the defendant could not be sentenced to death.

Mitigating evidence that trial counsel had not presented was held to be irrelevant to actual innocence of the death penalty (and thus to finding a fundamental miscarriage of justice) since it could not be said that no reasonable jury would have found the petitioner eligible for the death penalty had the evidence been before it. However, other evidence not available to the petitioner because of an alleged violation of Brady v.

Maryland (1963) 373 U.S. 83 [10 L.Ed.2d 215, 83 S.Ct. 1194] was relevant both to the finding that the petitioner had committed first degree murder, and the finding that the murder was committed in the course of aggravated arson, the requisite aggravating circumstance.

Relief was nonetheless denied because the petitioner had not shown by clear and convincing evidence that, in light of all of the evidence in the record, the new evidence was such that no rational juror would have found the petitioner guilty of the aggravated arson, or of the other aggravating circumstance, had the evidence been before the jury. (505 U.S. at p. _ [120 L.Ed.2d at p. 286].) The federal test, based on a statute limiting federal habeas corpus review of a state prisoner’s claims to those based on alleged deprivation of constitutional rights, and limiting review on successive petitions to circumstances in which consideration of the successive petition was justified in the ends of justice because a fundamental miscarriage of justice had occurred, is not controlling here.

As noted above, the scope of review on habeas corpus in this state is not limited to error of constitutional dimension. Newly discovered evidence may also be the basis for relief. Therefore, it is appropriate to also consider the exceptions to procedural bars which are recognized by the courts of our sister states. 2. State court limitations.

The problem of ensuring the availability of habeas corpus and equivalent postconviction remedies to correct fundamental error which has resulted in imprisonment of a criminal defendant, while controlling abuse of the writ, is not new. (See Robson & Mello, Ariadne’s Provisions: A "Clue of Thread” to the Intricacies of the Procedural Default, Adequate and Independent State Grounds, and Florida’s Death Penalty (1988) 76 Cal.L.Rev. 87; Goldstein, Application of Res Judicata Principles to Successive Federal Habeas Corpus Petitions in Capital Cases: The Search for an Equitable Approach (1987) 21 U.C.

Davis L.Rev. 45; Catz, Federal Habeas Corpus and the Death Penalty; Need for a Preclusion Doctrine Exception (1985) 18 U.C. Davis L.Rev. 1177; Comment, Repetitive Post-Conviction Petitions Alleging Ineffective Assistance of Counsel: Can the Pennsylvania Supreme Court Tame the “Monster?” (1982) 20 Duq. L.Rev. 237.) Like California, most states have statutory and/or judicially created limitations on successive petitions. Some of these states have also attempted to articulate rules, and to achieve consistent application of rules, governing exceptions to the limitations imposed on successive petitions.

Others have no express standards. The Pennsylvania experience is instructive. In 1980, the Pennsylvania Post Conviction Hearing Act (PCHA), 42 Pennsylvania Consolidated Statutes

section 9541 et seq. (now the Post Conviction Relief Act), included an exception to its rules which deemed an issue “finally litigated” or “waived” on bases similar to those applied by this court. That exception permitted the court to consider the merits of a PCHA petition notwithstanding those bars if the petitioner was able ‘to prove the existence of extraordinary circumstances to justify his failure to raise the issue.” (Act of Jan. 25, 1966, Pa. Laws 1580 (1965) § 4, 19 Pa. Stats. § 1180-4 (Supp. 1979-1980).) Construing the “extraordinary circumstances” exception in Com. v.

Watlington (1980) 491 Pa. 241 [420 A.2d 431], the Pennsylvania Supreme Court held that serial ineffectiveness of appellate and succeeding counsel in failing to allege the ineffectiveness of prior counsel and trial counsel constituted an extraordinary circumstance. By 1988 the Watlington rule had proved itself inadequate to stem the tide of successive petitions and was abandoned. In Com. v.

Lawson (1988) 519 Pa. 504 [549 A.2d 107], the Pennsylvania Supreme Court addressed the “vexing problem of repetitive petitions.” (Id., at p. 108.) “This appeal evidences the problems that can arise if we permit post-conviction relief to destroy any concept of finality in our decisional process in the area of criminal law. . . . [I]ts importance to the integrity of our system of jurisprudence requires our attention, . . .” (Id., at p. 110.) The court concluded that the intent of the Legislature, as reflected in the PCHA, to curtail continuing assaults on judgments, had been undermined by “overly generous judicial decisions [which] have in fact permitted the magic words ‘ineffective assistance of prior counsel,’ regardless of the number of prior counsel, to be equated with the concept of ‘extraordinary circumstances. . . .’” (Id., at p. 111.) The solution was to dismiss without hearing a second or subsequent application for postconviction relief “unless a strong prima facie showing is offered to demonstrate that a miscarriage of justice may have occurred, [f] ...[][] We hold today that the mere assertion of ineffective assistance of counsel is not sufficient to override the waiver and ‘finally litigated’ provisions in the P.C.H.A., as to permit the filing of repetitive or serial petitions under the banner of that statute.

A repetitive or serial petition may be entertained only for the purpose of avoiding a demonstrated miscarriage of justice, which no civilized society can tolerate.” (549 A.2d at p. 112, fn. omitted.) The new Lawson standard is satisfied “if the petitioner can demonstrate either: (

a) that the proceedings resulting in his conviction were so unfair that a miscarriage of justice occurred which no civilized society can tole

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