In re EDWARD PATRICK MORGAN on Habeas Corpus, 50 Cal. 4th 932

Opinion KENNARD, J. Thirteen years ago, after he was convicted of capital murder and sentenced to death, indigent petitioner Edward Patrick Morgan invoked his statutory right to this court’s appointment of habeas corpus counsel to challenge his conviction and his death sentence. Today, he still lacks such counsel because of a critical shortage of qualified attorneys willing to represent capital prisoners in state habeas corpus proceedings. Now before us is a cursory one-claim habeas corpus petition, which lacks any supporting exhibits.

Petitioner asks us to defer a decision on his petition until we appoint habeas corpus counsel and until that attorney has had a reasonable opportunity to investigate various factual and legal matters that may lead to additional claims for relief, to be presented in an amended petition. The Attorney General opposes the request, urging us to deny the current petition as meritless. We grant petitioner’s request. I In 1996, an Orange County jury convicted petitioner of kidnapping Leona Wong (Pen. Code, § 207), unlawfully penetrating her with a foreign object (§ 289), and murdering her (§ 187).

The jury also found true special circumstance allegations that defendant committed the murder in the course of committing the first two crimes. (§ 190.2, former subd. (a)(17)(ii), (xi).) Petitioner’s appeal to this court from the judgment of death was automatic. (§ 1239, subd. (b).) In August 1996, petitioner asked us to appoint counsel to represent him on his automatic appeal to this court (§ 1239, subd. (b)), and to appoint counsel to prepare a habeas corpus petition on his behalf. In March 2000, we appointed counsel to represent petitioner on appeal.

But today, some 13 and a half years after petitioner’s request for appointed habeas corpus counsel, we still have not found qualified counsel willing to accept the appointment. (The reasons are set forth in pt. II, post.) In November 2007, this court issued its unanimous opinion in petitioner’s appeal. We reversed the conviction for kidnapping and the kidnap-murder special circumstance but otherwise affirmed the judgment, including the sentence of death. (People v.

Morgan (2007) 42 Cal.4th 593 [67 Cal.Rptr.3d 753, 170 P.3d 129].) In March 2008, the United States Supreme Court denied petitioner’s petition for writ of certiorari. In April 2008, the California Appellate Project (CAP), which has not been appointed as petitioner’s habeas corpus counsel, filed in this court a petition for writ of habeas corpus on his behalf. Unlike the typical capital habeas corpus petition, this petition is cursory and lacks supporting exhibits.

It alleges just one claim: that trial counsel’s prejudicially deficient performance violated petitioner’s “right to the effective assistance of counsel and to a fair and reliable determination” of his guilt of the crimes charged, of the truth of the special circumstance allegations, and of the penalty to be imposed. Specifically, petitioner faults his trial counsel for requesting a standard jury instruction (CALJIC No. 4.20) on voluntary intoxication that was allegedly “inapplicable and detrimental” to his case.

Petitioner also faults counsel for failing to ask the trial court to instruct the jury that CALJIC No. 4.21 (a standard instruction, given by the court, stating that the jury may consider a defendant’s voluntary intoxication when relevant to the defendant’s specific intent) “is an exception to the general rule stated in CALJIC No. 4.20.” The petition also alleges broadly that petitioner’s trial counsel was incompetent because he did not “adequately investigate and present additional evidence at the guilt phase in support of the partial defense of intoxication,” and because he did not “present expert testimony at the guilt phase regarding the intoxicating effects of alcohol, cocaine and steroids, and their potential effect on an intoxicated person’s ability to form the required specific intent for violating Penal Code

section 289 . . the petition, however, alleges no specific facts to support these broad allegations.

Petitioner’s prayer for relief asks us to “[p]ermit petitioner to amend this petition within 36 months after the appointment of habeas corpus counsel to include additional claims as determined by habeas corpus counsel [and] [][] [d]efer informal briefing on this petition, should this Court desire such briefing, until petitioner has filed the amended petition and provided the Court with all reasonably available documentary evidence in support of the allegations in the amended petition.” As it has done here, CAP has filed a cursory petition on behalf of each death row inmate who, upon the finality of the inmate’s automatic appeal, lacked habeas corpus counsel.

Thus far, this court has granted each petition’s request to defer informal briefing and to permit amendment of the petition within 36 months of habeas corpus counsel’s appointment. In June 2008, the Attorney General filed in this court a “Respondent’s Motion for Order to Show Cause,” requesting us to promptly consider the current petition, to find it lacking in merit, and to summarily deny it. We issued an order construing the Attorney General’s request as an opposition to petitioner’s request.

We asked both parties to submit supplemental briefs on the issue, and we scheduled the matter for oral argument so the parties could express their views in open court. (See Cal. Rules of Court, rule 8.54(b)(2) [“On a party’s request or its own motion, the court may place a motion on calendar for a hearing.”].) II In California, an indigent prisoner who has been convicted of a capital crime and sentenced to death has a statutory right to the assistance of court-appointed counsel not only on appeal (Douglas v.

California (1963) 372 U.S. 353, 356-357 [9 L.Ed.2d 811, 83 S.Ct. 814]; § 1240) but also in a habeas corpus proceeding (Gov. Code, § 68662). The latter right is at issue here.

This statutory right to appointed habeas corpus counsel “promotes the state’s interest in the fair and efficient administration of justice and, at the same time, protects the interests of all capital inmates by assuring that they are provided a reasonably adequate opportunity to present us their habeas corpus claims.” (In re Barnett (2003) 31 Cal.4th 466, 475 [3 Cal.Rptr.3d 108, 73 P.3d 1106].) Ideally, the appointment of habeas corpus counsel should occur shortly after an indigent defendant’s judgment of death.

An expeditious appointment would enable habeas corpus counsel to investigate potential claims for relief and to prepare a habeas corpus petition at roughly the same time that appellate counsel is preparing an opening brief on appeal. This would ensure the filing of a habeas corpus petition soon after completion of the briefing on the appeal. (See Cal.

Supreme Ct., Policies Regarding Cases Arising from Judgments of Death, policy 3, std. 1-1.1 [a habeas corpus petition “will be presumed to be filed without substantial delay if it is filed within 180 days after the final due date for the filing of appellant’s reply brief on the direct appeal”].) But our task of recruiting counsel has been made difficult by a serious shortage of qualified counsel willing to accept an appointment as habeas corpus counsel in a death penalty case.

Quite few in number are the attorneys who meet this court’s standards for representation and are willing to represent capital inmates in habeas corpus proceedings. The reasons are these: First, work on a capital habeas corpus petition demands a unique combination of skills. The tasks of investigating potential claims and interviewing potential witnesses require the skills of a trial attorney, but the task of writing the petition, supported by points and authorities, requires the skills of an appellate attorney. Many criminal law practitioners possess one of these skills, but few have both.

Second, the need for qualified habeas corpus counsel has increased dramatically in the past 20 years: The number of inmates on California’s death row has increased from 203 in 1987 to 670 in 2007. (Cal. Com. on the Fair Admin, of Justice, Final Rep. (2008) p. 121 (California Commission Final Report).) California does have a Habeas Corpus Resource Center (HCRC), which the California Legislature established in 1998 to represent indigent capital inmates in postconviction habeas corpus matters. (See Gov.

Code, § 68661.) But, as has been observed, “the number of cases the HCRC can accept is limited both by a statutory cap on the number of attorneys it may hire and by available fiscal resources.” (Alarcon, Remedies for California’s Death Row Deadlock (2007) 80 So.Cal. L.Rev. 697, 739.) Although hundreds of indigent death row inmates already have been provided with appointed habeas corpus counsel, approximately 300 of these inmates still lack such counsel. The search for qualified counsel can take eight to 10 years or longer. (Cal. Com.

Final Rep., supra, at p. 122.) Here, petitioner still does not have habeas corpus counsel after 13 years on death row. In filing a cursory one-claim habeas corpus petition now rather than awaiting this court’s appointment of habeas corpus counsel who could file a more thorough petition at some future date, petitioner’s apparent purpose is to preserve his right to seek habeas corpus relief in the federal courts.

Remedies in state court must be exhausted (see 28 U.S.C. § 2254(b)(1)(A)) before a state prisoner can seek habeas corpus relief in the federal courts, which require that the habeas corpus petition be filed within one year from “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review” (28 U.S.C. § 2244(d)(1)(A)).

A judgment of death is “final” upon the United States Supreme Court’s denial of a capital inmate’s petition for writ of certiorari after our affirmance of the judgment, or upon expiration of the time in which the inmate may seek certiorari in the federal high court. (Bowen v.

Roe (9th Cir. 1999) 188 F.3d 1157, 1159-1160.) To permit the inmate to exhaust state remedies as to claims that must be raised in a habeas corpus petition rather than on appeal, the federal statute of limitations is tolled while there is pending in state court a “properly filed application for State post-conviction or other collateral review.” (28 U.S.C. § 2244(d)(2).) If consideration of the current habeas corpus petition is deferred as petitioner has requested, and if that petition is ultimately denied in this court, presumably petitioner will then seek habeas corpus relief in federal court challenging his state court conviction and judgment of death, and asserting the tolling of the federal statute of limitations during the pendency of his current petition in our court.

To date, no published federal court decision has addressed this specific tolling issue under federal law. We express no view on this issue, observing only that a denial of the current habeas corpus petition, a result advocated by the Attorney General, would immediately stop the tolling of the federal statute of limitations. in Relying primarily on this court’s decision in In re Clark (1993) 5 Cal.4th 750 [21 Cal.Rptr.2d 509, 855 P.2d 729] (Clark), the Attorney General argues that in light of “longstanding state precedent,” we should not defer consideration of the current habeas corpus petition.

We stated in Clark: “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.” (Clark, supra, 5 Cal.4th at p. 782.) Accordingly, this court “must and will assume . . . 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.” (Id. at pp. 780-781.) Clark further stated: “The inclusion in a habeas corpus petition of a statement purporting to reserve the right to supplement or amend the petition at a later date has no effect.

The court will determine the appropriate disposition of a petition for writ of habeas corpus based on the allegations of the petition as originally filed and any amended or supplemental petition for which leave to file has been granted.” (Clark, supra, 5 Cal.4th at p. 781, fn. 16; see also In re Haygood (1975) 14 Cal.3d 802, 805 [122 Cal.Rptr. 760, 537 P.2d 880].) This court will not “routinely delay action on a filed petition to permit amendment and supplementation of the petition.” (Clark, supra, at p. 781.) The purpose of these habeas corpus rules is to enable this court, whenever possible, to consider all of a petitioner’s claims simultaneously and expeditiously, rather than piecemeal.

It is not a practice of this court to routinely defer a decision on a habeas corpus petition and to permit its amendment so additional claims can be raised. (Clark, supra, 5 Cal.4th at p. 781.) But an exception is called for because of the critical shortage of qualified counsel willing to accept appointment as habeas corpus counsel in a capital case. As explained earlier, in California an indigent prisoner who is under a court judgment of death has a statutory right to the assistance of appointed counsel to pursue habeas corpus relief. Here, petitioner invoked that right some 13 years ago.

Due to circumstances beyond our control (see pp. 937-938, ante), we have not yet been able to find a qualified attorney willing to accept appointment as habeas corpus counsel for petitioner. Had there been reasonably prompt compliance with petitioner’s request, presumably he could have filed a timely habeas corpus petition in this court and, if that petition was denied, he could have filed a timely habeas corpus petition in federal court.

The Attorney General characterizes the current petition that CAP has filed on petitioner’s behalf as nothing more than a “shell petition,” filed solely to toll the federal statute of limitations, and he urges us to compel petitioner to file a “real habeas petition in a genuine effort to exhaust state remedies.” It would be grossly unfair, however, to impose this difficult task on petitioner himself, an indigent death row inmate who is untrained in the law and statutorily entitled to appointed habeas corpus counsel.

The advantages of having an experienced attorney prepare and file a habeas corpus petition were succinctly summed up in a prior decision of this court: “[Wjith their formal legal training, professional experience, and unrestricted access to legal and other resources, counsel possess distinct advantages over their inmate clients in investigating the factual and legal grounds for potentially meritorious habeas corpus claims and in recognizing and preparing legally sufficient challenges to the validity of the inmates’ death judgments.” (In re Barnett, supra, 31 Cal.4th at p. 477.) As noted earlier, the current one-claim petition was prepared and filed by CAP, which is not acting in the capacity of appointed habeas corpus counsel, but is performing its task of “providing advocacy as needed during the period of incarceration before counsel is appointed.” (CAP Web site, supra; see fh. 2, ante.) In light of CAP’S limited resources, the current petition is by necessity quite cursory.

The Attorney General argues that federal habeas corpus proceedings are “costly, disruptive, and counter-effective to the enforcement of state law” and that therefore this court should not defer consideration of the petition now before us. But whether federal habeas corpus proceedings are, as the Attorney General contends, detrimental to the enforcement of state law is not at issue here.

At issue is whether this court should defer consideration of petitioner’s incomplete habeas corpus petition (filed without the assistance of appointed counsel) to avoid potential prejudice to his right to seek federal habeas corpus relief in the federal courts. The source of this potential prejudice is this court’s lengthy but unavoidable delay in recruiting qualified counsel willing to accept an appointment as habeas corpus counsel for petitioner, a death row inmate.

In light of the unusual circumstances presented, we grant petitioner’s request to defer a decision in this matter until we have appointed habeas corpus counsel and until that attorney has had a reasonable opportunity to investigate various factual and legal matters for potentially meritorious claims to be presented in an amended habeas corpus petition. If we ultimately deny the petition, any issue pertaining to the adequacy of petitioner’s compliance with the federal statute of limitations governing habeas corpus petitions is for the federal courts to decide.

Disposition We grant petitioner’s request to defer consideration of his current habeas corpus petition pending the appointment of habeas corpus counsel by this court and the filing of an amended petition within 36 months of counsel’s appointment. The Attorney General’s motion in opposition to that request is denied. George, C. J., Werdegar, J., Chin, J., and Moreno, J., concurred. Unless otherwise stated, all statutory citations are to the Penal Code.

On its Web site, CAP gives this description of itself: “The California Appellate Project in San Francisco (CAP-SF) is a non-profit corporation established by the State Bar of California in 1983 as a legal resource center to implement the constitutional right to counsel for indigent persons facing execution.

CAP serves the largest population of condemned individuals in the country and is funded primarily by a contract with the Judicial Council of California. []□ CAP-SF assists private counsel appointed by the California Supreme Court to represent indigent defendants in capital cases challenging their convictions and sentences on direct appeal and through habeas corpus proceedings, and provides them with professional training and litigation resource materials.

In addition, CAP-SF assists unrepresented death row inmates by collecting and preserving evidence for their post-conviction claims, and by providing advocacy as needed during the period of incarceration before counsel is appointed. CAP-SF also consults, at the request of the judiciary, on policy matters regarding indigent defense representation in capital cases.” (<http://www.capsf.org/About-CAPSF.asp> [as of Aug. 30, 2010].) Government Code

section 68662 provides: “The [California] Supreme Court shall offer to appoint counsel to represent all state prisoners subject to a capital sentence for purposes of state postconviction proceedings, and shall enter an order containing one of the following: [$] (

a) The appointment of one or more counsel to represent the prisoner in postconviction state proceedings upon a finding that the person is indigent and has accepted the offer to appoint counsel or is unable to competently decide whether to accept or reject that offer, [f] (

b) A finding, after a hearing if necessary, that the prisoner rejected the offer to appoint counsel and made that decision with full understanding of the legal consequences of the decision. HD (

c) The denial to appoint counsel upon a finding that the person is not indigent.” Our rules of court provide: “An attorney appointed as lead or associate counsel to represent a person in death penalty-related habeas corpus proceedings must have at least the following qualifications and experience: [f]

(1) Active practice of law in California for at least four years, [f]

(2) Either: []Q (

A) Service as counsel of record for a defendant in five completed felony appeals or writ proceedings, including one murder case, and service as counsel of record for a defendant in three jury trials or three habeas corpus proceedings involving serious felonies; or []0 (

B) Service as counsel of record for a defendant in five completed felony appeals or writ proceedings and service as supervised counsel in two death penalty-related habeas corpus proceedings in which the petition has been filed. . . . H]

(3) Familiarity with the practices and procedures of the California Supreme Court and the federal courts in death penalty-related habeas corpus proceedings, [f]

(4) Within three years before appointment, completion of at least nine hours of Supreme Court-approved appellate criminal defense or habeas corpus defense training, continuing education, or course of study, at least six hours of which address death penalty habeas corpus proceedings. ...[]□

(5) Proficiency in issue identification, research, analysis, writing, investigation, and advocacy . . . .” (Cal. Rules of Court, rule 8.605(e).) This court may appoint an attorney who does not meet certain of these requirements if we find that the attorney has other equivalent experience and the attorney can consult with an attorney designated by the court. (Cal.

Rules of Court, rule 8.605(f).) The concurring and dissenting opinion asserts that our practice of deferring consideration of cursory habeas corpus petitions filed by unrepresented defendants “eliminates any urgency to secure counsel” (conc. & dis. opn., post, at p. 942) as a result of which “capital inmates may languish without representation for several years” (ibid..). This practice should have no effect on the urgency of our efforts to recruit qualified habeas corpus counsel to represent death row inmates, and it has not had such effect. Title 28 United States Code

section 2244(d)(2) provides: “The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.” According to the concurring and dissenting opinion, this court’s practice of deferring consideration of cursory habeas corpus petitions filed by unrepresented petitioners is “essentially a gesture of largesse from this court” (conc. & dis. opn., post, at p. 947) that “servefs] no state interest” (id., at p. 946).

To the contrary, California’s “state interest” in providing death row inmates with qualified habeas corpus counsel is reflected in its statutory scheme (Gov. Code, § 68662), and our practice of deferring consideration of cursory habeas corpus petitions is an attempt to remedy a consequence of this court’s inability, due to circumstances beyond our control, to timely provide such inmates with the legal representation that is theirs by right.

The concurring and dissenting opinion asserts that this court’s practice of deferring consideration of cursory habeas corpus petitions filed by unrepresented petitioners “will inevitably contribute to the lengthy delays our state experiences in resolving capital cases.” (Cone. & dis. opn., post, at p. 946.) What is causing the delay, however, is not that practice but this court’s inability so far to recruit qualified habeas corpus counsel for each of the hundreds of death row inmates.