Gallego, In re

• Citation: 77 Cal.Rptr.2d 132,959 P.2d 290,18 Cal.4th 825
• Decision Date: 03 August 1998
• Docket Number: No. S042737,S042737
• Parties: , 959 P.2d 290, 98 Daily Journal D.A.R. 8387 In re Gerald A. GALLEGO, On Habeas Corpus
• Court: California Supreme Court

Page 132

77 Cal.Rptr.2d 132

18 Cal.4th 825, 959 P.2d 290, 98 Daily Journal D.A.R. 8387

In re Gerald A. GALLEGO On Habeas Corpus

No. S042737.

Supreme Court of California

Aug. 3, 1998.

Rehearing Denied Sept. 23, 1998. ^*

Linda E. Shostak and Rachel Krevans, under appointments by the Supreme Court, Carolyn A. Johnston, Michael R. Goldstein and Morrison & Foerster, San Francisco, for Petitioner.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass and Dane R. Gillette, Assistant Attorneys General, Stan M. Helfman and Christopher J. Wei, Deputy Attorneys General, for Respondent.

GEORGE, Chief Justice.

Petitioner's judgment of conviction and sentence of death was affirmed on appeal in 1990 (People v. Gallego (1990) 52 Cal.3d 115, 276 Cal.Rptr. 679, 802 P.2d 169, cert. den. (1991) 502 U.S. 924, 112 S.Ct. 337, 116 L.Ed.2d 277 (Gallego I )). In October 1994, shortly after we granted the motion of present counsel to replace petitioner's appellate counsel, petitioner filed this petition for a writ of habeas corpus, his first state habeas corpus petition, raising 35 claims.

We issued an order to show cause in this matter and in the companion case of In re Robbins (1998) 18 Cal.4th 770, 77 Cal.Rptr.2d 153, 959 P.2d 311 (Robbins ), to address issues relating to application of the procedural bar of untimeliness. Our order to show cause herein directed the parties to address a narrow issue: whether, and under what circumstances, this court's denial of a confidential request for habeas corpus investigation We conclude that a petitioner's timely request for investigation funds, and our denial of that request, are, under circumstances described herein, relevant to our inquiry into "substantial delay" in two respects: First, a request for funds is relevant to a petitioner's allegation that information offered in support of certain of his or her claims was obtained recently and was not known earlier. Second, our denial of a petitioner's timely request for investigation funds will support a determination that the petitioner not only did not actually know of the information earlier but also should not reasonably have known of the information earlier. If (i) discovery of the information offered in support of a claim requires the expenditure of funds, (ii) the petitioner is indigent and cannot fund the investigation personally, and (iii) the petitioner timely files a request for funding of a specific proposed investigation, fully disclosing all asserted triggering information in support of the proposed investigation, then the petitioner's appointed counsel has exercised reasonable diligence with respect to the proposed claim. When our court denies such a request for investigation funds -- having determined that the petitioner has failed to present sufficient "triggering facts" to support the proposed investigation -- we cannot properly find that the petitioner should have discovered such information without first obtaining funding from some other source or learning of the information in some other manner. Appointed counsel for the petitioner has no obligation personally to fund a habeas corpus investigation (whether or not the investigation is supported by "triggering facts"). Thus, a denial of a request for investigation funds is, under the described circumstances, relevant to whether a petitioner "should have known" of the information earlier.

funds may be relevant to establishing the absence of substantial delay or good cause for such delay with regard to related, later-filed habeas corpus claims.

Nevertheless, although we conclude that such a request for investigation funds is relevant to the determination of the timeliness of a subsequently filed habeas corpus petition, petitioner in this case, as we shall explain, has failed to meet his burden of establishing that the claims presented in his petition were filed without substantial delay. Furthermore, we also conclude 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 in its entirety the petition for a writ of habeas corpus. ¹

I

We need not recount the facts underlying petitioner's convictions in order to address the procedural question here at issue. It suffices to note that petitioner was convicted in 1983 of murdering a young couple. The prosecution presented evidence at the guilt phase of the trial that petitioner had committed two additional murders, and presented evidence at the penalty phase of the trial that petitioner had committed yet two additional murders. (Gallego I, supra, 52 Cal.3d at pp. 140-158, 276 Cal.Rptr. 679, 802 P.2d 169.)

A

The relevant procedural facts are as follows. In early October 1989 -- approximately 15 months before we filed our opinion on petitioner's automatic appeal -- appellate counsel for petitioner timely filed a confidential application for authorization to incur $7,000 in investigation expenses related to potential claims that might be raised in a subsequent petition for a writ of habeas corpus. ² (See Supreme Ct. Policies Regarding Cases Arising From Judgments of Death, policy 3, Standards governing filing of habeas The confidential application requested, among other things, a sum to investigate petitioner's competence to stand trial. ³ In July 1990, we authorized an expenditure to investigate one possible claim unrelated to any of the claims presented in the present petition, and denied the remainder of the application, including the request for funds to investigate petitioner's competence to stand trial. ⁴ Appellate counsel for petitioner did not subsequently file a habeas corpus petition.

[18 Cal.4th 830] corpus petitions and compensation of counsel in relation to such petitions (Policy 3), pt. 2, Compensation standards, std. 2-3.)

After the United States Supreme Court denied a petition for rehearing of its denial of certiorari (Gallego v. California (1991) 502 U.S. 1009, 112 S.Ct. 650, 116 L.Ed.2d 667), the superior court set petitioner's execution for early March 1992. In early February 1992, petitioner filed, in propria persona, an application for appointment of counsel and for temporary stay of execution in the United States District Court for the Northern District of California. That court granted the application and subsequently issued several stays of execution while the northern district selection board located and recommended appointment of federal habeas corpus counsel for petitioner. The federal court appointed present counsel to represent petitioner in federal court on August 28, 1992. Petitioner secured funds for, and commenced, a habeas corpus investigation. Thereafter, pursuant to various orders, petitioner's execution was stayed by the federal court for another 19 months -- until March 25, 1994 -- at which time petitioner, on order of the federal court, filed a habeas corpus petition in federal court containing both exhausted and unexhausted claims.

The federal district court denied a motion by the Attorney General to dismiss the unexhausted claims, and granted petitioner 60 days in which to file in this court a petition for a writ of habeas corpus to exhaust those claims. In September 1994, we allowed state-appointed appellate counsel to withdraw and granted the motion of federally-appointed counsel for appointment to represent petitioner in this court. Petitioner filed the present petition on October 14, 1994.

B

The petition is not entitled to a presumption of timeliness, because it was not filed "within 90 days after the final due date for the filing of appellant's reply brief on the direct appeal." (Policy 3, supra, std. 1-1.1,

                originally adopted eff.  June 6, 1989.)   Accordingly, in order to avoid the bar of untimeliness, petitioner has the burden of establishing either (i) "absence of substantial delay" (id., std. 1-1.2;  see In re Clark (1993) 5 Cal.4th 750, 782-784, 21 Cal.Rptr.2d 509, [959 P.2d 295] 855 P.2d 729 (Clark )), (ii) "good cause for the delay" (Policy 3, supra, std. 1-2;  Clark, supra, 5 Cal.4th at pp. 783-787, 21 Cal.Rptr.2d 509, 855 P.2d 729), or (iii) that his claims fall within an exception to the bar of untimeliness (Clark, supra, 5 Cal.4th at pp. 797-798, 21 Cal.Rptr.2d 509, 855 P.2d 729).   We address herein only one aspect of the first of these alternative showings that petitioner must make to avoid the bar.  (We consider all three of these matters in the opinion in the companion case, Robbins, supra, 18 Cal.4th 770, 77 Cal.Rptr.2d 153, 959 P.2d 311.)
                

II

A

For purposes of addressing the question posed in our order to show cause (whether, and under what circumstances, this court's prior denial of a confidential request for habeas corpus investigation expenses may be relevant to establishing the absence of substantial delay), we need examine only one of the petition's claims. "Claim X" asserts that penalty phase counsel who entered the trial after petitioner represented himself at the guilt phase provided constitutionally ineffective assistance of counsel because he failed to raise the issue of petitioner's alleged incompetence to stand trial during the penalty phase of the trial.

Claim X is premised in substantial part upon voluminous "family background" information concerning the social, medical, and criminal histories of petitioner and his relatives, and "expert assessments" by seven mental health professionals -- based in large part upon that background information -- that petitioner "suffered the effects of long-standing brain impairment and related psychiatric disorders which, particularly under the stress and complexity of litigation, severely impaired his ability to understand the nature of the proceedings or rationally to assist counsel in investigating, preparing and presenting a defense." Although the...