In re Friend

• Decision Date: 28 June 2021
• Docket Number: S256914
• Citation: 280 Cal.Rptr.3d 313,11 Cal.5th 720,489 P.3d 309
• Court: California Supreme Court
• Parties: IN RE Jack Wayne FRIEND on Habeas Corpus.

11 Cal.5th 720

489 P.3d 309

280 Cal.Rptr.3d 313

IN RE Jack Wayne FRIEND on Habeas Corpus.

S256914

Supreme Court of California.

June 28, 2021

As Modified September 1, 2021

Jon M. Sands, Federal Public Defender, Lindsey Layer and Stanley Molever, Assistant Federal Public Defenders, for Petitioner Jack Wayne Friend.

Cuauhtemoc Ortega, Interim Federal Public Defender (Central Dist. of Cal.), and Heather Williams, Federal Public Defender (Eastern Dist. of Cal.), as Amici Curiae on behalf of Petitioner Jack Wayne Friend.

Gibson, Dunn & Crutcher, Kelsey John Helland, San Francisco, Viola H. Li, Zhen He Tan, Theane Evangelis, Ilissa Samplin, Michael Holecek, Los Angeles, and Shaun Mathur, Irvine, for Attorneys for Constitutional Law as Amici Curiae on behalf of Petitioner Jack Wayne Friend.

Xavier Becerra, Attorney General, Michael J. Mongan, State Solicitor General, Lance Winters, Chief Assistant Attorney General, James William Bilderback II, Assistant Attorney General, Helen H. Hong, Deputy State Solicitor General, and Alice B. Lustre, Deputy Attorney General, for Respondent California Department of Corrections and Rehabilitation.

Kent S. Scheidegger and Kymberlee C. Stapleton for Criminal Justice Legal Foundation as Amicus Curiae.

Opinion of the Court by Kruger, J.

Proposition 66, the Death Penalty Reform and Savings Act of 2016 (as approved by voters, Gen. Elec. (Nov. 8, 2016) § 1), made wide-ranging changes to the procedures for challenging convictions and sentences in capital cases. Among other things, Proposition 66 introduced new restrictions on the presentation of habeas corpus claims in what the measure refers to as "successive" petitions: Individuals who file successive petitions must show they are actually innocent or ineligible for the death penalty before courts may consider the merits of their claims. ( Pen. Code, §§ 1509, 1509.1.) The question before us concerns the scope of these restrictions on successive petitions. Do the restrictions apply to all claims raised in a second or subsequent habeas petition, including claims based on newly available evidence and newly decided case law? Or do the restrictions apply only to those claims that were or could have been raised in an earlier petition?

We answer this question by reference to background principles of habeas corpus law. The traditional rules governing the handling of successive petitions have long distinguished between the presentation of newly available claims and the presentation of claims that could have been raised earlier; the law has traditionally limited only the latter, forbidding consideration of repetitive or pretermitted claims except in a few, narrowly defined circumstances. Proposition 66 modified these rules by further narrowing the circumstances under which courts may consider repetitive or pretermitted claims in capital cases. But properly understood, Proposition 66's successiveness restrictions do not limit the consideration of claims that could not reasonably have been raised earlier, such as those based on newly available evidence or on recent changes in the law — claims that have not previously been thought subject to successiveness limitations. Thus, under the law as amended by Proposition 66, habeas corpus petitioners must make a showing of actual innocence or death ineligibility if they seek a second chance to make an argument they could have made earlier. No such requirement applies to the habeas petitioner who raises a newly available claim at the first opportunity.

I.

Petitioner Jack Wayne Friend was convicted of the 1984 robbery murder of Oakland bartender Herbert Pierucci and sentenced to death. On automatic appeal, we affirmed the capital convictions and sentence. ( People v. Friend (2009) 47 Cal.4th 1, 10, 97 Cal.Rptr.3d 1, 211 P.3d 520.) Friend filed a habeas corpus petition in this court, which we denied in 2015. Friend then filed a federal habeas petition in the United States District Court for the Northern District of California. In 2017, the federal court stayed proceedings to allow Friend to exhaust six claims in state court. The following year, Friend filed a second state habeas petition raising the six unexhausted claims in Alameda County Superior Court.¹

In the meantime, before Friend filed his second state court petition, Proposition 66 came into force; the measure took effect in October 2017, after this court considered and decided a number of facial challenges to its constitutionality. (See Briggs v. Brown (2017) 3 Cal.5th 808, 862, 221 Cal.Rptr.3d 465, 400 P.3d 29 ( Briggs ).) Applying Penal Code section 1509, subdivision (d), a provision newly added by Proposition 66, the Alameda County Superior Court dismissed Friend's recently filed habeas petition as successive. It further denied Friend's request for a certificate of appealability under newly added Penal Code section 1509.1, subdivision (c). Friend then filed a notice of appeal and requested a certificate of appealability from the Court of Appeal. That court denied Friend's request for a certificate and marked the notice of appeal inoperative. (See Cal. Rules of Court, rule 8.392(b)(7).)

We granted Friend's petition for review, specifying three issues for briefing: the meaning of the term "successive" in Penal Code sections 1509 and 1509.1, the propriety of applying the provisions’ limits on successive petitions when the litigant's first petition was filed before Proposition 66 took effect, and the appealability of a dismissal for successiveness under Penal Code sections 1509 and 1509.1.

II.

A.

Proposition 66 enacted a number of statutory reforms in an effort to make the system of capital punishment "more efficient, less expensive, and more responsive to the rights of victims." ( Briggs , supra , 3 Cal.5th at p. 831, 221 Cal.Rptr.3d 465, 400 P.3d 29.) Among these reforms were various changes to the procedures for handling and resolving habeas corpus petitions in capital cases. ( Id. at pp. 823–825, 221 Cal.Rptr.3d 465, 400 P.3d 29.) The bulk of these changes are found in newly added Penal Code section 1509.² The most prominent change is a new one-year deadline for filing an "initial" habeas petition after the appointment of counsel ( Pen. Code, § 1509, subd. (c) ); this represents a departure from traditional habeas law in capital as well as noncapital cases, which ordinarily considers the timeliness of habeas petitions without imposing "fixed, determinate deadlines." ( Robinson v. Lewis (2020) 9 Cal.5th 883, 890, 266 Cal.Rptr.3d 13, 469 P.3d 414 ; see In re Robbins (1998) 18 Cal.4th 770, 780, 77 Cal.Rptr.2d 153, 959 P.2d 311 ( Robbins ) [outlining pre-Proposition 66 timeliness rules for capital habeas].) But Proposition 66 changes habeas procedure in other ways as well. Whereas the approved practice was for all capital habeas petitioners to file directly in this court, section 1509 now calls for most capital petitions to be heard initially in the sentencing court. ( Pen. Code, § 1509, subd. (a).) And whereas the law generally requires unsuccessful habeas petitioners to seek review by filing a new habeas petition in a higher court (see Robinson , at p. 895, 266 Cal.Rptr.3d 13, 469 P.3d 414 ), newly added Penal Code section 1509.1 requires capital petitioners to seek review by way of appeal instead. ( Pen. Code, § 1509.1, subd. (a).)³

The provisions at issue in this case set out instructions for handling successive petitions. Penal Code section 1509, subdivision (d) ( section 1509(d) ), provides, as relevant here: "An initial petition which is untimely under subdivision (c) or a successive petition whenever filed shall be dismissed unless the court finds, by the preponderance of all available evidence, whether or not admissible at trial, that the defendant is actually innocent of the crime of which he or she was convicted or is ineligible for the sentence." Penal Code section 1509.1 then imposes a related procedural hurdle for litigants seeking to appeal the denial of a successive petition. It provides that such litigants "may appeal the decision of the superior court denying relief on a successive petition only if the superior court or the court of appeal grants a certificate of appealability." ( Pen. Code, § 1509.1, subd. (c) ( section 1509.1(c) ).) Section 1509.1(c) further specifies that "[a] certificate of appealability may issue under this subdivision only if the petitioner has shown both a substantial claim for relief, which shall be indicated in the certificate, and a substantial claim that the requirements of subdivision (d) of Section 1509 have been met." The overall effect of these restrictions is to forbid courts from considering successive petitions, or appeals from the denial of such petitions, that are unaccompanied by a showing of innocence or ineligibility for the death penalty.

To put this set of reforms in context, we briefly describe the law as it existed before Proposition 66 (and as it continues to exist in noncapital cases). Restrictions on the consideration of successive habeas petitions are not new. Several decades ago, California courts identified presentation of claims in a " ‘piecemeal [manner] by successive proceedings’ " as an abuse of the writ process. ( In re Horowitz (1949) 33 Cal.2d 534, 547, 203 P.2d 513, quoting In re Drew (1922) 188 Cal. 717, 722, 207 P. 249.) The solution was the development of the so-called successiveness bar, a set of limits that applied in all habeas cases before Proposition 66 and that continues to apply to noncapital cases today. Like other procedural bars developed in the case law, the successiveness bar was "designed to ensure legitimate claims are pressed early in the legal process." ( In re Reno (2012) 55 Cal.4th 428, 452, 146 Cal.Rptr.3d 297, 283 P.3d 1181 ( Reno ).) The bar therefore limits consideration of claims that were unjustifiably omitted from earlier petitions. But importantly, it does so "while leaving open a ‘safety valve’ for those rare or unusual claims that could not reasonably...