In re Reno

• Decision Date: 31 October 2012
• Docket Number: No. S124660.,S124660.
• Citation: 55 Cal.4th 428,12 Cal. Daily Op. Serv. 10049,146 Cal.Rptr.3d 297,2012 Daily Journal D.A.R. 12263,283 P.3d 1181
• Court: California Supreme Court
• Parties: In re RENO on Habeas Corpus.

55 Cal.4th 428

283 P.3d 1181

146 Cal.Rptr.3d 297

12 Cal. Daily Op. Serv. 10,049

2012 Daily Journal D.A.R. 12,263

In re RENO on Habeas Corpus.

No. S124660.

Supreme Court of California

Aug. 30, 2012.

As Modified on Denial of Rehearing Oct. 31, 2012.

See 6 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Criminal Writs, § 58.

James S. Thomson, Saor Stetler, Mill Valley, and Peter Giannini, under appointments by the Supreme Court, for Petitioner Reno.

Bill Lockyer, Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Robert R. Anderson and Dane R. Gillette, Chief Assistant Attorneys General, Pamela C. Hamanaka, Assistant Attorney General, John R. Gorey, Joseph P. Lee, Robert David Breton and Mary Sanchez, Deputy Attorneys General, for Respondent State of California.

Kent S. Scheidegger for Criminal Justice Legal Foundation as Amicus Curiae on behalf of Respondent State of California.

Michael Laurence for the Habeas Corpus Resource Center and California Public Defenders Association as Amici Curiae.

Michael J. Hersek, State Public Defender, and Nina Rivkind, Deputy State Public Defender, for the Office of the State Public Defender as Amicus Curiae.

Cliff Gardner, Wilmington; Lawrence A. Gibbs; and John T. Philipsborn, San Francisco, for the Federal Public Defender for the Eastern and Central Districts and the California Attorneys for Criminal Justice as Amici Curiae.

WERDEGAR, J.

We issued an order to show cause in this case to address a problem that, over time, has threatened to undermine the efficacy of the system for adjudicating petitions for collateral relief in cases involving the death penalty. The cases of those individuals sentenced to suffer the ultimate penalty in this state are automatically appealed directly to this court, bypassing the intermediate Court of Appeal. (Cal. Const., art. VI, § 11, subd. (a); Pen.Code, § 1239, subd. (b).) Should this court affirm the judgment on direct appeal, such defendants are entitled to further challenge the judgment by filing in this court a petition for a writ of habeas corpus.

In the event this court denies the habeas corpus petition, all (or nearly all) capital defendants proceed to file a petition for a writ of habeas corpus in federal district court. But because the federal courts require claims presented there to have first been exhausted in state court ( Baldwin v. Reese (2004) 541 U.S. 27, 29, 124 S.Ct. 1347, 158 L.Ed.2d 64;¹ see [146 Cal.Rptr.3d 314]28 U.S.C. § 2254(b)(1)(A)), capital defendants quite typically file a second habeas corpus petition in this court to raise unexhausted claims. Third and fourth petitions are not unknown. The potential for delay, as litigants bounce back and forth between this court and the federal courts, is obvious.

The instant case involves the second habeas corpus petition filed in this court by petitioner Reno.² This “exhaustion petition” (as such petitions are known because they purport to seek to exhaust state claims in order to raise them in federal court) is well over 500 pages long and by its own count raises 143 separate claims. Nearly all of these claims raise legal issues that are, for a variety of reasons, not cognizable or are procedurally barred in this renewed collateral attack. As we explain, in raising claims already adjudicated by this court, and in raising new claims with no serious attempt to justify why such claims were not raised on appeal or in Reno's first habeas corpus petition, this petition exemplifies abusive writ practices that have become all too common in successive habeas corpus petitions filed in this court. Such practices justify denial of the petition without this court's passing on the substantive merits of the abusive claims. Imposing financial sanctions on counsel, although a permissible consequence for abusive writ practices, will not be imposed in this case but remains an option in future cases.

We take this opportunity to establish some new ground rules for exhaustion petitions in capital cases that will speed this court's considerationof them without unfairly limiting petitioners from raising (and exhausting) justifiably new claims. Therefore, we direct that, in future cases, although a petitioner sentenced to death will still be able to file his or her initial habeas corpus petition with no limit as to length, second and subsequent petitions will be limited to 50 pages (or 14,000 words if produced on a computer), subject to a good cause exception.

Partly in reliance on suggestions made by the parties and amici curiae, we adopt measures by which petitions may be streamlined, making preparation and review of the petition simpler and more efficient. As explained in more detail below, such petitions must clearly and frankly disclose: (a) what claims have been raised and rejected before, and where (either on appeal or on habeas corpus, with appropriate record and opinion citations); (b) what claims could have been raised before (e.g., because they are based on facts in the appellate record or were known at the time the first habeas corpus petition was filed), and why they were not raised at an earlier time; (c) what claims are truly new (that is, they have not previously been presented to this court); and (d) which claims were deemed unexhausted by the federal court and are raised for the purpose of exhaustion. This last disclosure must be supported by a copy of the federal court's order. This background information need not be realleged or described in detail, but can and should be placed in a table or chart not to exceed 10 pages (which will not count against the 50–page limit) accompanying the petition. This chart will permit the court to determine at a glance which claims are repetitive and which are newly alleged, and will allow us to more expeditiously evaluate the claims in the petition. It is, moreover, improper to state new claims or theories for the first time in the informal reply or traverse. The same is true for allegations explaining why a procedural bar is inapplicable; such allegations must appear in the petition proper. In addition, the lack of investigative funds will no longer be routinely accepted as an excuse to justify a delayed presentation of a claim. We add that petitioners may cite and incorporate by reference prior briefing, petitions, appellate transcripts, and opinions in the same case but no longer need to separately request judicial notice of such matters, as this court routinely consults these documents when evaluating exhaustion petitions. Thus, an argument raised in a prior appeal or habeas corpus petition and reraised in a subsequent petition may be incorporated by reference and need not be reargued (subject to the discussion, post ).

Finally, in recognition of circumstances in which counsel wish to present issues purely to exhaust remedies in compliance with a federal exhaustion order, a petitioner may elect to submit for our consideration, in a table or chart and in a very summary way, some or all of the claims deemed unexhausted by the federal court. This summary presentation may take the form of a brief statement of the issue and reasons procedural bars may not apply, and no presentation of this nature will be considered to be an abuse of the writ.

I. Background

As we describe below, petitioner committed his crimes in 1976 and 1978. He was tried and convicted of his crimes and sentenced to death. We reversed that first conviction for legal error in 1985. Following his retrial (in which he was again sentenced to death), we affirmed his conviction and sentence in 1995. We also denied his first habeas corpus petition that same year. We consider here his second habeas corpus petition.

A. The Crime

“A jogger found the bodies of Scott Fowler and Ralph Chavez, Jr., sprawled 178 feet apart near a pond in John Anson Ford Park in Bell Gardens early on the morning of July 26, 1976. Fowler was 12 years old, Chavez 10. Each victim's throat had been cut with a sharp instrument. Witnesses testified that the boys had been fishing for hours the day before, staying well into the evening. They were placing their catch in a plastic gallon-size milk jug with the top excised so as to keep the handle intact. The police found the jug nearby, along with bologna wrappers, which were evidence of the boys' picnic. A trail of blood suggested that Chavez had tried to run after the attack. The medical examiner fixed the time of death at about midnight.

“Carl Carter, Jr. [ (hereafter Carl Jr.) ], was reported missing in South Gate on October 22, 1978. He was seven years old. His body was found some five days later amidst dense scrub alongside a road. He had been strangled to death—a cord was still bound around his neck. An enzyme found in his anal area suggested an attempt at sodomy.” ( People v. Memro (1995) 11 Cal.4th 786, 811, 47 Cal.Rptr.2d 219, 905 P.2d 1305( Memro II ).)

The police became aware of petitioner Reno when they were interviewing people who might know where Carl Jr. could be found. When officers went to petitioner's apartment, he introduced himself by saying, “ ‘ “I knew you were coming.... I['v]e been in Atascadero [State Prison]....” ’ ” ( Memro II, supra, 11 Cal.4th at p. 812, 47 Cal.Rptr.2d 219, 905 P.2d 1305.) Petitioner provided no useful information at that time, and the officers returned to the Carter residence. While they were there, petitioner came over to drop off a part for his Volkswagen with Carl Carter, Sr. (hereafter Carl. Sr.), who was a car mechanic. Officer William Sims again asked petitioner where he had been and what he might have seen near the time of Carl Jr.'s disappearance. Petitioner said, “ ‘ “I remember now....” ’ ” ( ibid.) and explained that, just before dark, he had come up to the Carter residence to talk with Carl Sr. about working on his Volkswagen. Carl Jr. was at the rear of the house and spoke briefly with petitioner. Carl Jr. then left with petitioner to buy some soda. After hearing this story, Officer Sims...