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California Supreme Court Announces Not All Subsequent Habeas Petitions Under Death Penalty Reform and Savings Act Are ‘Successive’

by Dale Chappell


A subsequent petition for habeas corpus relief filed in a California court is not always a “successive” petition, under the death penalty reform law passed in 2016, the Supreme Court of California held, among other important rulings on the law.

It’s called the Death Penalty Reform and Savings Act of 2016, and it bars, among many other things in death penalty cases, more than one petition for habeas corpus relief in any state court. The issue came before the state’s highest court when Jack Friend filed what the lower courts had determined was a “successive” petition, which they said he was barred from doing. He was convicted in 1984 of the robbery and murder of a bartender in Oakland, and all of his appeals had been unsuccessful. In 2015, Friend filed a habeas petition in federal court, and the court stayed those proceedings until he could exhaust his state habeas options. He filed another state habeas petition in this effort, and then the law changed. The sentencing court ruled that the new law prevents it from hearing his claims because he had already filed a petition earlier.

The New Law

The change in law was Proposition 66, the Death Penalty Reform and Savings Act of 2016 (“DPRSA”), codified at Cal. Pen. Code §§ 1509 and 1509.1. Its purpose, according to the Supreme Court, is to “make the system of capital punishment more efficient, less expensive, and more responsive to the rights of victims.” One of the ways lawmakers decided to do this was by prohibiting more than one habeas petition by death-sentenced prisoners. Under the old rules, a prisoner in California could file more than one habeas petition and usually had to do so when seeking relief from a wrongful conviction. This included death row prisoners.

Under the DPRSA, a successive petition by a death row prisoner “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 ... or is ineligible for the [death] sentence.” § 1509(d). The DPRSA also requires that the petition be filed in the sentencing court within one year of the sentence and that an appeal cannot be taken unless a court certifies that there is a “substantial” claim to be heard on appeal. The old method of filing another habeas petition in the court of appeal was abolished for death penalty cases.

The Old Law

Several decades ago, California courts identified the presentation of claims in a “piecemeal” manner in successive petitions as an abuse of the habeas process. See In re Horowitz, 203 P.2d 513 (Cal. 1949). Courts addressed the problem by developing the so-called successiveness bar, which is a set of limits that applied to all habeas cases prior to Prop 66 and still applies to noncapital cases even after Prop 66. See In re Reno, 283 P.3d 1181 (Cal. 2012). The successiveness bar was designed by the courts to “ensure legitimate claims are pressed early in the legal process.” Id. “The bar therefore limits consideration of claims that were unjustifiably omitted from earlier petitions,” the Court explained, “but importantly, it does so while leaving open a ‘safety valve’ for those rare or unusual claims that could not reasonably have been raised at an earlier time.”

In In re Clark, 855 P.2d 729 (Cal. 1993), the California Supreme Court devised a two-step process for determining whether a successive petition can be heard. The first step is determining whether the claim could have been raised earlier, and the second step is whether not hearing the claim would result in a “fundamental miscarriage of justice.” Id. The Clark Court further went into a great deal of detail in it discussion, providing even more steps for courts to follow in allowing a successive petition. But it basically comes down to whether the claim could not have been raised earlier in order to get around the bar.

Does the New Successive Bar Apply to All Subsequent Habeas Petitions?

The Court framed the issue in the present case as follows: “The question before us concerns the scope of [the restrictions in the DPRSA] on successive petitions. Do the restrictions apply to all claims raised in a second or subsequent habeas corpus 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?”

Following an extensive examination of the background principles of habeas law as it has developed in California, the Court held: “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 corpus petitioner who raises a newly available claim at the first opportunity.”

The Court explained that a broad reading of Prop 66 would apply its strict successiveness standard to all second or subsequent capital habeas petitions, which would eliminate the traditional safety valve for those claims based on newly available evidence and other claims that couldn’t have been raised earlier. In contrast, a narrower reading would result in applying the successiveness standard to only petitions raising repetitive or pretermitted claims, according to the Court. It explained: “Under this narrower reading, Proposition 66 preserves the traditional two-step inquiry described in case law, but at the second step it replaces the four-part fundamental miscarriage of justice exception with just two grounds—actual innocence or death ineligibility—that will justify giving a habeas corpus petitioner a second chance to raise a claim that was unjustifiably omitted from a prior petition.”

In opting for the narrower interpretation of Prop 66, the Court reasoned that a broad reading of the DPRSA—specifically, § 1509(d)—banning all subsequent habeas petitions would result in “serious constitutional violations,” where the petitioner did not discover the basis of the claim until after the first petition. The Court provided an example of the problem: “The broad reading of section 1509(d) would … foreclose a claim based on newly available evidence of trial misconduct by jurors, the prosecutor, defense counsel, or the trial judge. Such misconduct might be serious enough to call into question the validity of the judgment, yet fail to meet section 1509(d).” (Citing numerous U.S. Supreme Court cases where a habeas claim was not discoverable for years after the case was final.)

The Court also noted a policy concern that implicated foundation for habeas corpus. “If Proposition 66 were construed to preclude even claims of constitutional error that could not have been raised earlier with reasonable diligence, it would mark the first time that the law has closed that long-standing safety valve for newly available claims. The statute would instead apply the same exacting innocence or ineligibility standard to all claims raised in a second or successive petition, whether justifiably or not. It is a significant question whether such a drastic restriction on the effectiveness of the habeas corpus remedy would comport with the principles of substantial justice that lie at the core of our state Constitution’s habeas protections.” Finality, the Court said, has to give way when it comes to wrongful convictions, and as such, a narrow reading of the successive bar in § 1509(d) is required.

Accordingly, the Court reversed the denial of a certificate of appealability to Friend and remanded with instructions for the court of appeal to hold a hearing and determine whether the petition is in fact barred by the DPRSA’s successive bar rule in light of the Court’s opinion. See: In re Friend, 489 P.3d 309 (Cal. 2021). 

Editor’s note: The Court’s background discussion of the history and state case law on successive habeas corpus petitions, for both capital and noncapital cases, is well beyond the scope of what can be covered in CLN court opinion summaries. Consequently, anyone with a particular interest in the topic is encouraged to read the full opinion.

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Related legal cases

In re Friend

In re Reno

In re Horowitz



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