50 Cal. 4th 951, 237 P.3d 1004, 114 Cal. Rptr. 3d 605
Filed 8/30/10 (this opn. follows companion case, S162413, also filed 8/30/10)
IN THE SUPREME COURT OF CALIFORNIA
In re SAMUEL ZAMUDIO JIMENEZ
S167100
on Habeas Corpus.
____________________________________)
This matter is a companion to In re Morgan (Aug. 30, 2010, S162413) ___
Cal.4th ___ (Morgan).
After a conviction for capital murder and a sentence of death in 1998,
petitioner invoked his statutory right to this court?s appointment of habeas corpus
counsel to challenge his conviction and death sentence. Because of a critical
shortage of qualified attorneys willing to represent capital inmates in habeas
corpus proceedings, petitioner had to wait eight and one-half years for counsel?s
appointment.1
In September 2008, like the petitioner in Morgan, supra, ___ Cal.4th ___,
this petitioner filed a cursory one-claim habeas corpus petition, without any
supporting exhibits. He asked us to defer a decision on the petition until his
habeas corpus counsel had an adequate opportunity to investigate various factual
and legal matters that might lead to additional claims, to be presented in an
amended petition. As in Morgan, the Attorney General opposed the request,
1
By contrast, the petitioner in Morgan, supra, ___ Cal.4th ___, still lacks
appointed habeas corpus counsel 13 years after requesting one.
1
urging us to deny the current habeas corpus petition as meritless. For reasons set
forth below, we grant petitioner?s request.
I
A jury convicted Samuel Zamudio Jimenez of two counts of robbery (Pen.
Code, ? 211)2 and two counts of murder (? 187). It also found true two special
circumstance allegations of multiple murder (? 190.2, subd. (a)(3)) and two special
circumstance allegations of robbery murder (id., subd. (a)(17)). On October 5,
1998, the trial court imposed a sentence of death. His appeal to this court from the
judgment of death was automatic. (? 1239, subd. (b).)
In November 1998, petitioner requested that we appoint counsel to
represent him on his automatic appeal and to file a habeas corpus petition on his
behalf. In August 2002, we appointed counsel to represent petitioner on appeal.
In June 2007, we appointed habeas corpus counsel ? the Habeas Corpus
Resource Center. (The reasons for the delay in appointing counsel are discussed
in pt. II, post.)
In April 2008, we issued a unanimous opinion in the automatic appeal. We
vacated one multiple-murder special circumstance but otherwise affirmed the
convictions and the judgment of death. (People v. Zamudio (2008) 43 Cal.4th
327, cert. den. sub nom. Kelly v. California (2008) 555 U.S. __ [172 L.Ed.2d
445].)3
In September 2008, the Habeas Corpus Resource Center on petitioner?s
behalf filed in this court a petition for writ of habeas corpus. The petition lacks
2
Unless otherwise stated, all further statutory citations are to the Penal Code.
3
Our opinion on appeal showed petitioner?s name as ?Samuel Zamudio,?
which we obtained from the information filed in the trial court. But according to
the habeas corpus petition, petitioner?s true name is Samuel Zamudio Jimenez.
2
any supporting exhibits, and it alleges a single claim: that petitioner ?was
deprived of his right to effective assistance of counsel by trial counsel?s
constitutionally deficient performance at the guilt phase of his trial.? Specifically,
the petition faults trial counsel for not objecting to multiple instances of alleged
prosecutorial misconduct, all of which appear in the appellate record. The petition
also alleges, without elaboration, that trial counsel ?rendered constitutionally
deficient representation in failing adequately to investigate, prepare, and present
meritorious guilt and special circumstance defenses [and] to competently litigate
motions relating to the exclusion and admission of evidence.? Included in the
prayer for relief is a request that this court ?[d]efer informal briefing and stay
further proceedings on this petition until June 28, 2010, or the filing of an
Amended Petition for Writ of Habeas Corpus, whichever is earlier, so that
petitioner may file reasonably available documentation in support of the petition
as well as any additional claims that may become known to him during that time.?
In response, the Attorney General, as he did in Morgan, supra, ___ Cal.4th
___, filed a ?People?s Motion for Order to Show Cause.? The Attorney General
asked that we not defer a decision on the cursory habeas corpus petition, but that
instead we deny it as meritless. As we did in Morgan, we issued an order
construing the Attorney General?s motion as an opposition to petitioner?s request.
We then asked both the Attorney General and petitioner to submit supplemental
briefs on the issue, and we scheduled the matter for oral argument so the parties
could express their views in open court. (See Cal. Rules of Court, rule 8.54(b)(2)
[?On a party?s request or its own motion, the court may place a motion on calendar
for a hearing.?].)
After this court had heard oral argument in the matter, but within 36 months
of habeas corpus counsel?s appointment, petitioner submitted an ?Amended
3
Petition for Writ of Habeas Corpus? raising additional claims. We marked this
document as ?received? pending the outcome of this proceeding.
II
In California, an indigent prisoner who has been convicted of a capital
crime and sentenced to death has a statutory right to this court?s appointment of
habeas corpus counsel to challenge the conviction and the sentence of death.
(Gov. Code, ? 68662.) But, as we noted in Morgan, because of the difficulty this
court has experienced in recruiting qualified habeas corpus counsel, approximately
300 inmates on California?s death row, including the petitioner in Morgan, are still
without such counsel. (See Morgan, supra, ___ Cal.4th at p. ___ [p. 1].)
Although petitioner here does have appointed habeas corpus counsel, the
appointment did not occur until eight and one-half years after the judgment of
death.
Under this court?s rules, a habeas corpus petition challenging a judgment of
death is presumed to be timely if filed within 36 months of counsel?s appointment.
(See Cal. Supreme Ct., Policies Regarding Cases Arising from Judgments of
Death, policy 3, std. 1-1.1.) Implicit in this rule is the recognition that, in a capital
case, investigating potential habeas corpus claims and preparing an adequate
habeas corpus petition may take as long as three years. This is why: Before
preparing the petition, counsel must consult with the petitioner and must review
not only the trial record (here totaling more than 5,000 pages) but also the police
reports and trial counsel?s notes. In addition, habeas corpus counsel must
investigate various factual and legal matters that may lead to potentially
meritorious claims. These tasks become more challenging when, as occurred here,
habeas corpus counsel is not appointed until eight and one-half years after the
judgment of death. In that time span, critical documents may have been destroyed
and witnesses may no longer be available, or their memories may have faded.
4
Petitioner?s habeas corpus counsel was appointed in June 2007. Thus, to
satisfy the 36-month time period mentioned in the preceding paragraph, petitioner
had until June 2010 to file a presumptively timely habeas corpus petition. Instead
of waiting until that date to file a reasonably thorough petition raising all arguably
meritorious claims, petitioner filed a cursory one-claim petition in September
2008, before completion of the habeas corpus investigation. As in Morgan, supra,
___ Cal.4th ___, counsel?s apparent purpose in filing the petition was to preserve
petitioner?s right to seek habeas corpus relief in the federal courts.
Under federal law, remedies in state court must be exhausted (see 28 U.S.C.
? 2254(b)(1)(A)) before a state prisoner can seek habeas corpus relief in the
federal courts, which require that the habeas corpus petition be filed within one
year from ?the date on which the judgment became final by the conclusion of
direct review or the expiration of the time for seeking such review? (28 U.S.C.
? 2244(d)(1)(A)). A California state court judgment of death becomes ?final?
upon the United States Supreme Court?s denial of a capital defendant?s petition for
writ of certiorari filed by the defendant after our affirmance of the judgment of
death, or upon expiration of the time in which the defendant may seek certiorari in
the federal high court. (Bowen v. Roe (9th Cir. 1999) 188 F.3d 1157, 1159-1160.)
But the federal statute of limitations is tolled while there is pending in state court a
?properly filed application for State post-conviction or other collateral review.?
(28 U.S.C. ? 2244(d)(2).)4
4
Title 28, United States Code, section 2244(d)(2) provides: ?The time
during which a properly filed application for State post-conviction or other
collateral review with respect to the pertinent judgment or claim is pending shall
not be counted toward any period of limitation under this subsection.?
5
To date, no published federal court decision has addressed the issue of
whether state habeas corpus petitions such as those filed in this matter and in
Morgan, supra, ___ Cal.4th ___, are adequate to toll the federal statute of
limitations for claims not raised in the original petition but raised later in an
amended petition. We express no view on this issue of tolling under federal law,
observing only that a denial by this court of the current habeas corpus petition, a
result advocated by the Attorney General, would immediately stop the tolling of
the federal statute of limitations.
III
As he did in Morgan, supra, ___ Cal.4th ___, the Attorney General argues
that under ?longstanding state precedent? we should not defer deciding cursory
habeas corpus petitions filed for the purpose of tolling the federal statute of
limitations. As in Morgan, we disagree.
Earlier, we noted that in California an indigent prisoner who is under a
court judgment of death has a statutory right to appointed habeas corpus counsel.
Here, petitioner invoked that right in 1998, five weeks or so after the judgment of
death, but it was not until 2007 that we were able to recruit a qualified attorney
willing to accept the appointment. Had the appointment occurred shortly after
petitioner?s request, presumably counsel could have filed, shortly after the filing of
the briefs on appeal, a reasonably thorough habeas corpus petition. In the event of
this court?s denial of the petition, petitioner could then have pursued habeas
corpus relief in the federal courts within the federal statute of limitations? one-year
period.
But when, as here, habeas corpus counsel is not appointed until shortly
before the capital inmate?s appeal from that conviction becomes final, counsel
faces a procedural dilemma. If counsel, after thoroughly investigating various
factual and legal matters, files a state habeas corpus petition raising all potentially
6
meritorious claims, more than a year will have elapsed after the finality of the
appeal, and therefore the federal statute?s one-year deadline will bar the filing of a
habeas corpus petition in federal court. But if habeas corpus counsel seeks tolling
of the federal statute of limitations by filing in this court a petition that, given the
time constraints, is cursory, and upon this court?s denial of that petition files a
second petition raising additional claims, those claims are likely to be rejected as
being procedurally barred, because we require that, whenever possible, all claims
be presented in a single petition. (See In re Clark (1993) 5 Cal.4th 750, 780-781
(Clark).) Or if, in an effort to toll the federal statute of limitations, habeas corpus
counsel files in this court a habeas corpus petition that, given the time constraints,
is prepared hastily and raises all conceivable issues but without providing
sufficient evidentiary support, the petition is likely to be denied for lack of
adequate documentation. (People v. Duvall (1995) 9 Cal.4th 464, 474 [petition
should contain ?reasonably available documentary evidence supporting the claim,
including pertinent portions of trial transcripts and affidavits or declarations?].)
Here, in an attempt to toll the federal statute of limitations while also
complying with the state procedural requirements, habeas corpus counsel, without
the benefit of a reasonably thorough investigation of relevant factual and legal
matters, filed a cursory one-claim petition. He asked us to defer a decision on that
petition until he had a reasonable opportunity to complete his investigation and to
file an amended petition raising additional claims. Because, under this court?s
rules, a state habeas corpus petition is presumed to be timely if filed within 36
months of his appointment (see Cal. Supreme Ct., Policies Regarding Cases
Arising from Judgments of Death, policy 3, std. 1-1.1), counsel asked us to defer
our decision until expiration of the 36-month period, by which time his
investigation would be complete and an amended petition could be filed.
7
Since 2001, in circumstances similar to those here, habeas corpus counsel
appointed for capital inmates have proceeded in the same manner as counsel here.
In each instance, we have deferred consideration of the petition, allowing counsel
to later file an amended petition within the 36-month period set forth in our court
rules.
The Attorney General challenges this practice as being inconsistent with
this court?s pronouncement in Clark that we will not ?routinely delay action on a
filed petition to permit amendment and supplementation of the petition? (Clark,
supra, 5 Cal.4th at p. 781), and that claims must generally be presented ?in a
single, timely petition for writ of habeas corpus? (id. at p. 797). We are not in the
habit of routinely postponing consideration of a habeas corpus petition so a
petitioner can file an amended petition raising additional claims. (Clark, supra, 5
Cal.4th at p. 781.) But the extraordinary circumstances presented here and in
similar petitions justify an exception. As explained earlier, in California an
indigent prisoner who is under a court judgment of death has a statutory right to
the assistance of appointed habeas corpus counsel. Due to the critical shortage of
qualified counsel willing to accept appointment as habeas corpus counsel in
capital cases (see Morgan, supra, ___ Cal.4th at p. ___ [pp. 6-7]), here it took us
eight and one-half years to find a qualified attorney willing to accept the
appointment. Had there been reasonably prompt compliance with petitioner?s
request for such appointment, counsel would have had the time to conduct a
thorough investigation and to file a habeas corpus petition in this court raising all
potentially meritorious claims within the federal law?s deadline of one year from
the finality of the judgment of death (see p. 5, ante), and, if that petition was
denied, petitioner could have filed a timely habeas corpus petition in federal court.
A denial in this court of this and similar requests to defer consideration of
capital inmates? habeas corpus petitions, a result advocated by the Attorney
8
General, may make it even more difficult for us in the future to recruit qualified
habeas corpus counsel for death row inmates, in light of the procedural dilemma
faced by counsel. (See pp. 6-7, ante.)
Nothing here alters Clark?s requirement that generally a habeas corpus
petitioner must raise all claims in a single unamended petition. (See Clark, supra,
5 Cal.4th at pp. 781, 797.) We here hold only that a departure from that
requirement is appropriate under the extraordinary circumstances presented.
DISPOSITION
On June 28, 2010, while this matter was pending, petitioner submitted to
this court a document entitled ?Amended Habeas Corpus Petition.? In light of that
submission, we treat petitioner?s request to postpone consideration of the
previously filed cursory habeas corpus petition as a motion for leave to amend that
petition with the newly submitted document, and we construe the Attorney
General?s motion in opposition as a motion to deny petitioner leave to amend the
cursory habeas corpus petition and instead to treat the newly submitted document
as a separate and subsequent habeas corpus petition. We grant petitioner?s motion,
we deny the Attorney General?s motion in opposition, and we order the amended
petition filed as of June 28, 2010.
KENNARD, J.
WE CONCUR:
GEORGE, C. J.
WERDEGAR, J.
CHIN, J.
MORENO, J.
9
CONCURRING AND DISSENTING OPINION BY CORRIGAN, J.
I concur in the disposition of this case, but I dissent from the majority?s
holding approving ?shell? habeas corpus petitions for the reasons set forth in my
separate opinion in In re Morgan (Aug. __, 2010, S162413) __ Cal.4th __ .
CORRIGAN, J.
I CONCUR:
BAXTER, J.
10
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion In re Zamudio Jimenez
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding XXX
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No.
S167100
Date Filed: August 30, 2010
__________________________________________________________________________________
Court:
County:
Judge:
__________________________________________________________________________________
Attorneys for Appellant:
Habeas Corpus Resource Center, Michael Laurence, Cristina Bord?, Sara Cohbra and M?nica Oth?n for
Petitioner Samuel Zamudio Jimenez.
Law Office of John T. Philipsborn and John T. Philipsborn for the Government of Mexico as Amicus
Curiae on behalf of Petitioner Samuel Zamudio Jimenez.
Daniel J. Broderick, Federal Defender, and Jennifer M. Corey, Assistant Federal Defender, for Federal
Defenders for the Eastern and Central Districts of California as Amici Curiae on behalf of Petitioner
Samuel Zamudio Jimenez.
__________________________________________________________________________________
Attorneys for Respondent:
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C.
Hamanaka, Gerald A. Engler and Ronald S. Mathias, Assistant Attorneys General, Keith H. Borjon and
Herbert S. Tetef, Deputy Attorneys General, for Respondent State of California.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Michael Laurence
Habeas Corpus Resource Center
303 Second Street, Suite 400 South
San Francisco, CA 94107
(415) 348-3800
Dane R. Gillette
Chief Assistant Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
(415) 703-5858