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September 3, 2012

California Supreme Court details restrictions on successive habeas filings

As reported in this effective piece from The Recorder, headlined "State Supreme Court Puts Strict Limits on Habeas Petitions," that California Supreme Court late last week issued this very lengthy unanimous opinion discussion the problem of excessive capital habeas filings.  Here are excerpts from the press account of the ruling:

Frustrated by 500-page briefs in capital habeas corpus cases, the California Supreme Court issued its own 120-page ruling Thursday laying out strict new limits and warning of sanctions if they're not followed.

The court harshly criticized the defense lawyers in In re Reno, 12 C.D.O.S. 10049, labeling various portions of their petition "untimely," "improper," "patently meritless," "grossly misleading" and based on "stock justifications."  But it stopped short of issuing sanctions, as it had threatened to do before argument in the case, which had caused a storm in the capital defense bar.  Instead, the court cautioned that violating its new rules, which include a 50-page limit on successive habeas petitions, could lead to sanctions and State Bar discipline in the future.

Abusive habeas petitions "along with other factors have created a significant threat to our capacity to timely and fairly adjudicate such matters," Justice Kathryn Mickle Werdegar wrote for a unanimous court.  "Some death row inmates with meritorious legal claims may languish in prison for years waiting for this court's review while we evaluate [other prisoners'] petitions raising dozens or even hundreds of frivolous and untimely claims."

The Sacramento-based victim rights group Criminal Justice Legal Foundation immediately hailed the new limits as "a first step to pare back the time and tax dollars wasted on unnecessary, repetitive appeals on claims that typically have nothing to do with the guilt of the murderer."

But one of the defense lawyers in the case, James Thomson of Berkeley, said the limits could lead to more litigation in federal court over unexhausted habeas claims.  "When you go back to federal court you're going to be limited to what you raised in state court," he said. "It may cause a lot more problems than it solves."...

The court set out procedural rules for habeas petitions 18 years ago in In re Clark, Werdegar noted.  But in the intervening years, "experience has taught that in capital cases, petitioners frequently file second, third and even fourth habeas corpus petitions raising nothing but procedurally barred claims."  Those petitions require "several weeks if not months of dedicated work by members of the court" while rarely justifying their untimely filing.

Werdegar found those transgressions particularly troubling given what she described as California's generally favorable rules for habeas litigation.  "Vis-à-vis other states, we authorize more money to pay post-conviction counsel, authorize more money for post-conviction investigation, allow counsel to file habeas corpus petitions containing more pages, and permit more time following conviction to file a petition for what is, after all, a request for collateral relief."  At the same time, she acknowledged the court's ongoing challenge finding sufficient qualified counsel to take on death penalty habeas cases.

Consequently, the court announced that while there would continue to be no limit on initial habeas petitions, successive petitions must be limited to 50 pages.  They also must spell out which claims have been raised and rejected before, which could have been raised earlier, which are "truly new," and which have been deemed unexhausted by a federal court.  That information, the Supreme Court said, should be included in a table that may run an additional 10 pages.

While not imposing sanctions in this case, Werdegar added, "attorneys (and parties) in future cases are forewarned" that failure to observe the limits "may result in financial sanctions and/or having this court refer the offending attorney to the State Bar for potential discipline."

Thomson said he had a hard time imagining how counsel could observe the new limits in a complex death penalty case.  Just setting out the statements of facts, procedural history, jurisdiction and unlawful restraint typically takes 20 or more pages, he said.  "That's not going to leave much room to fully develop the new claims you have to raise," he said. When counsel return to federal court, many will face judges who want to know why all federal claims weren't fully exhausted, he said he expects.

Thomson stressed that in his case, the previous post-conviction lawyer for Reno declared that he'd failed to raise claims he should have, and an independent defense lawyer validated that admission.  "I did what a lawyer is supposed to do when protecting a client's interest," he said.

In my view, the issues and problems facing the California Supreme Court might be labelled "the revenge of AEDPA."  Before Congress via AEDPA put strict limits on successive habeas petitions brought in federal court, capital defense lawyers would usually be content to head over to federal court with habeas petitions right after a first state habeas action was unsuccessful.  But now that capital defendants really only get one bite at the federal habeas apple, it makes sense for them to seek to keep biting off as much as they are allowed to chew in state courts.  Add in the need for defense counsel to preserve constitutional issues under the Fifth, Sixth and Eighth Amendment that seem often to be "evolving" in recent years to benefit defendants, and it comes as little surprise that the California Supreme Court is tired of having to wade through all the stuff that defense counsel may feel compelled to throw against the habeas wall in the hope that something will stick.

For these reasons (and others), I have often thought a special kind of clemency-type administrative proceeding ought to be made available to state capital defendants after they complete a state habeas appeal but before they bring a federal habeas action.  Often new information about a crime or a defendant can emerge in capital appeals which might prompt state authorities to be willing to take a defendant off death row if the defendant would be willing to stop challenging his conviction.  Some formal mechanism to enable an "equitable" resolution to some death sentences before defendants head to federal court (perhaps combined with a complete prohibition on successive state habeas petitions) might bring a fair an efficient resolution to a lot of capital cases that otherwise seem destined to drag on in both state and federal courts for many years and even decades.

September 3, 2012 at 11:50 AM | Permalink


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A page limit? I can understand restricting grounds for successive writs, but limiting the number of pages in the document seems arbitrary bordering on stupid.

Posted by: Gritsforbreakfast | Sep 3, 2012 2:46:31 PM

From the article: "Frustrated by 500-page briefs in capital habeas corpus cases..."

And that tells you about all you need to know. I was a criminal litigator for about 20 years. The idea of a 500 page brief is preposterous. It has zilch to do with the alleged complexities of the case. It also has zilch to do with lawyer blowhardism, although that's always a plausible candidate.

What it has to do with is (a) ideologically driven PD's trying to create as much delay and expense as possible, the better to litigate the system into the ground, and (b) by-the-hour counsel running the meter to make some extra moolah. Those summer beach houses can get expensive!

It's past time for a page limit, since history shows that nothing else works to inspire any sense of limitation in the fertile minds of the there's-always-an-excuse crowd. And the limits should be backed up with jailtime (contempt) for those who flout them.

We constantly hear that the system is running out of money, and nowhere is this more true than in California. If the prisons have to do their share, which they do, the lawyers can do theirs. However, the idea that they'll do it without complaining is a fantasy. Just wait for the bellyaching that's going to show up on this thread.

Posted by: Bill Otis | Sep 3, 2012 3:17:46 PM

Since AEDPA, Florida death row inmates repeatedly file postconviction appeals. Soon after cert is denied, they file another one.
The Florida Supreme Court has heard some cases between 6-10 times.

Posted by: DaveP | Sep 3, 2012 4:00:58 PM

The Criminal Justice Legal Foundation was founded in 1982, the same year as the California Victim's Bill of Rights (prop 8) and it would interesting to follow that money.

Posted by: Anon | Sep 3, 2012 4:53:59 PM

Anon --

"The Criminal Justice Legal Foundation was founded in 1982, the same year as the California Victim's Bill of Rights (prop 8) and it would interesting to follow that money."

It might be even more interesting to see if you'd like to attempt to rebut CJLF's ideas. Feel free anytime.

But if you're interested in following the money, follow George Soros's. He's got plenty, and he spreads it around.

Posted by: Bill Otis | Sep 3, 2012 5:13:05 PM

"A page limit?"

Yes. I don't understand why something that school children all the way through graduate school do millions of times a year comes as such a shock to the legal system. Conciseness is a virtue. A strong and positive virtue. Being able to separate the wheat from the chaff is a essential part of successfully advocacy expect for those who confuse "throwing shit at the walls and seeing what sticks" as advocacy. It's not advocacy, it's not even being a lawyer; it's throwing shit at the walls which is something even two year old grow out of.

They are lucky as far as I see it. If I were a judge and it was my court I'd put a page limit of 25 pages TOTAL for the briefs in a case.

Posted by: Daniel | Sep 3, 2012 5:15:19 PM

Bill Otis, thanks for the challenge. Where do you get your soundbites?

Victims' Rights and the Struggle over Crime in the Media by Carrie A. Rentschler

"Victims' Rights in California" by Gerald F. Uelman (your former colleague?)

Politics and Plea Bargaining: Victims' Rights in California By Candace McCoy.

Posted by: Anon | Sep 4, 2012 12:11:38 AM

"The Criminal Justice Legal Foundation was founded in 1982, the same year as the California Victim's Bill of Rights (prop 8) and it would interesting to follow that money."

Go right ahead and follow it, Anon. It's public record. (I'm not sure what you're driving at with the 1982 reference, BTW.)

But don't believe loose talk you dredge up on the internet. I have seen many claims that CJLF is "funded" by sources that have, in fact, never given a penny.

Posted by: Kent Scheidegger | Sep 4, 2012 1:29:43 PM

Anon --

I get my "soundbites" from the Constitution, and occasionally SCOTUS cases like Payne v. Tennessee. Where do you get yours? NAMBLA?

Posted by: Bill Otis | Sep 4, 2012 5:40:14 PM

NAMBLA is not found in the Constitution nor in Payne V. Tennessee. Your alma mater in Pigsville?

Posted by: Anon2 | Sep 4, 2012 7:23:22 PM

Anon 2 --

My alma mater is Stanford Law. Yours?

Posted by: Bill Otis | Sep 4, 2012 9:47:32 PM

Victims Still: The Political Manipulation of Crime Victims by Robert Elias.

Official crime policy shifted its focus from crime and criminals to victimization and victims in the 1980s and early 1990s. As a result, crime victims were the subject of extensive new legislation addressing victim needs, rights, and services. But did these initiatives really help victims, or did they help further Reagan and Bush administration "law and order" policies for curbing offender and public rights in favor of increasing police power? And has such power escalated incidents like the Rodney King case in Los Angeles? In this controversial and thought-provoking book, Robert Elias evaluates the effectiveness of the last decade's victim policy and argues that victims have been politically manipulated for official objectives. As a result, little victim support has occurred, and victimization keeps escalating. He reaches these conclusions from a thorough examination of victim legislation, get-tough crime policies, media crime coverage, the victim movement, and the wars on crime and drugs. Finally, he proposes solutions that could lead to substantially less crime. Students and professionals of criminology, victimology, policy studies, and political science will find Victims Still an exceptionally stimulating resource. "In Victims Still, Elias demonstrates again that he is a preeminent scholar in the field of victimology. This work provides a unique, provocative, and elucidative account of the politicization of the victims' movement as well as the social and political ramifications of the 'get tough' crime policies and enforcement strategies of the 1980s. Dr. Elias raises serious and challenging questions about the currency of conventional responses to crime victims and offenders. Victims Still should be required reading for crime victim researchers and program practitioners. This book offers a thoughtful reconsideration of the causes of crime and violence in America. Professor Elias's solutions to the crime problem are sweeping and progressive." --Arthur J. Lurigio, Ph.D., Loyola University of Chicago

Posted by: Anon | Sep 5, 2012 3:43:56 AM

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