18 Cal.4th 770, S048929, In re Robbins

Docket Nº:S048929
Citation:18 Cal.4th 770, 77 Cal.Rptr.2d 153, 959 P.2d 311
Party Name:In re Robbins
Case Date:August 03, 1998
Court:Supreme Court of California

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18 Cal.4th 770

77 Cal.Rptr.2d 153, 959 P.2d 311

In re MALCOLM J. ROBBINS on Habeas Corpus.


Supreme Court of California

August 3, 1998

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Karen R. Smith, under appointment by the Supreme Court, and Richard H. Chapnik for Petitioner.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Assistant Attorney General, Susan Lee Frierson, Donald E. DeNicola and Marc J. Nolan, Deputy Attorneys General, for Respondent.

Kent S. Scheidegger and Charles L. Hobson as Amici Curiae on behalf of Respondent.



In California, as in other states and the federal system, in criminal proceedings it is the trial that is the main arena for determining the guilt or innocence of an accused defendant and, in a capital case, for determining whether or not the death penalty should appropriately be imposed on the defendant for the offense at issue. At trial, a defendant is afforded counsel and a panoply of procedural protections, including state-funded investigation expenses, in order to ensure that the trial proceedings provide a fair and full opportunity to assess the truth of the charges against the defendant and the appropriate punishment. Further, if a defendant is convicted at trial of a capital offense and is sentenced to death, California law provides for an automatic appeal of the judgment to this court, and for the appointment of competent counsel to represent the defendant on that appeal. It is the appeal that provides the basic and primary means for raising challenges to the fairness of the trial.

California law also recognizes that in some circumstances there may be matters that undermine the validity of a judgment or the legality of a defendant's confinement or sentence, but which are not apparent from the record on appeal, and that such circumstances may provide a basis for a collateral challenge to the judgment through a writ of habeas corpus. At the same time, however, our cases emphasize that habeas corpus is an extraordinary remedy that "was not created for the purpose of defeating or embarrassing justice, but to promote it" (In re Alpine (1928) 203 Cal. 731, 744 [265 P. 947, 58 A.L.R. 1500]),

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and that the availability of the writ properly must be tempered by the necessity of giving due consideration to the interest of the public in the orderly and reasonably prompt implementation of its laws and to the important public interest in the finality of judgments. For this reason, a variety of procedural rules have been recognized that govern the proper use of the writ of habeas corpus, including a requirement that claims raised in a habeas corpus petition must be timely filed. 1

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We issued an order to show cause in this matter and in the companion case of In re Gallego, supra, 18 Cal.4th 825 (Gallego), not to consider the merits of the claims raised in the respective habeas corpus petitions, but instead to address a number of general procedural issues relating to petitions for writs of habeas corpus in capital cases, and, in particular, to address the question of the timeliness of claims advanced in such petitions. Under the applicable policies and case law governing the filing of habeas corpus petitions in capital cases in a California court, whenever a habeas corpus petition is filed more than 90 days after the filing of the reply brief in the direct appeal, the petitioner has the burden of establishing the timeliness of the claims raised in the petition. In both this case and in Gallego, the habeas corpus petitions were filed after the 90-day "presumptively timely" date, and respondent, in its informal response to each of the petitions (see Cal. Rules of Court, rule 60), asserted that a variety of claims raised in each of the petitions should be denied as untimely. We issued an order to show cause in these two cases to analyze the timeliness issue and to explain, in the context of specific claims, how the timeliness rules are applied by our court.

The petitioner in the present proceeding is Malcolm J. Robbins. Petitioner's judgment of conviction and sentence of death was affirmed on appeal in 1988. (People v. Robbins (1988) 45 Cal.3d 867 [248 Cal.Rptr. 172], cert. den. (1989) 488 U.S. 1034 [109 S.Ct. 849, 102 L.Ed.2d 981] (Robbins I).) In September 1995, petitioner filed the present petition for a writ of habeas corpus, his second habeas corpus petition filed in a state court. The petition raised 40 separately designated claims. Our order to show cause directed respondent (the Director of Corrections, represented by the Attorney General) to show cause why this court should not find various subclaims advanced in one of the petition's 40 claims (Claim I) to be timely, either because (i) the subclaims were presented "without substantial delay," (ii) "good cause" exists for any substantial delay, or (iii) one of the exceptions to the bar of untimeliness applies.

For the reasons set out below, we conclude, on the timeliness issue in question, that petitioner has established that three subclaims of Claim I are not substantially delayed, but has failed to sustain his burden of establishing absence of substantial delay, good cause for such delay, or that an exception to the bar of untimeliness applies, with regard to the remaining subclaim of Claim i . Furthermore, although we issued our order to show cause in order to address the timeliness issue only, we also conclude, as we shall explain, that all of the claims raised in the petition must be rejected on the merits, and that most claims also must be rejected on various procedural grounds. Accordingly, we shall, in an accompanying order, a copy of which is appended to this opinion, deny the petition for a writ of habeas corpus in its entirety.

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We set out immediately below, and describe in greater detail in the body of the opinion, the basic analytical framework governing our timeliness determination.

Pursuant to policies adopted by this court in June 1989, a habeas corpus petition is not entitled to a presumption of timeliness if it is filed more than 90 days after the final due date for the filing of appellant's reply brief on the direct appeal. In such a case, to avoid the bar of untimeliness with respect to each claim, the petitioner has the burden of establishing (i) absence of substantial delay, (ii) good cause for the delay, or (iii) that the claim falls within an exception to the bar of untimeliness.

Substantial delay is measured from the time the petitioner or his or her counsel knew, or reasonably should have known, of the information offered in support of the claim and the legal basis for the claim. A petitioner must allege, with specificity, facts showing when information offered in support of the claim was obtained, and that the information neither was known, nor reasonably should have been known, at any earlier time. It is not sufficient simply to allege in general terms that the claim recently was discovered, to assert that second or successive postconviction counsel could not reasonably have discovered the information earlier, or to produce a declaration from present or former counsel to that general effect. A petitioner bears the burden of establishing, through his or her specific allegations, which may be supported by any relevant exhibits, the absence of substantial delay.

A claim or a part thereof that is substantially delayed nevertheless will be considered on the merits if the petitioner can demonstrate good cause for the delay. Good cause for substantial delay may be established if, for example, the petitioner can demonstrate that because he or she was conducting an ongoing investigation into at least one potentially meritorious claim, the petitioner delayed presentation of one or more other known claims in order to avoid the piecemeal presentation of claims, but good cause is not established by prior counsel's asserted uncertainty about his or her duty to conduct a habeas corpus investigation and to file an appropriate habeas corpus petition.

A claim that is substantially delayed without good cause, and hence is untimely, nevertheless will be entertained on the merits if the petitioner demonstrates (i) 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; (ii) that the petitioner is actually innocent of the crime or crimes of which he or she was convicted; (iii) that

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the death penalty was imposed by a sentencing authority that had such a grossly misleading profile of the petitioner before it that, absent the trial error or omission, no reasonable judge or jury would have imposed a sentence of death; or (iv) that the petitioner was convicted or sentenced under an invalid statute. When we apply the first three of these exceptions, we shall do so exclusively by reference to state law. When we apply the fourth exception, we apply federal law in resolving any federal constitutional claim.

We also shall clarify the scope of counsel's duty to conduct a habeas corpus investigation. An attorney whose appointment includes responsibility for habeas corpus representation has had, since June 1989, a duty to investigate factual and legal grounds for the filing of a petition for a writ of habeas corpus. This duty requires that counsel (i) conduct a follow-up investigation concerning specific triggering facts that come to counsel's attention in the course of, among...

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