Supreme Court of California Justia
Citation 50 Cal. 4th 932, 237 P.3d 993, 114 Cal. Rptr. 3d 591
In re Morgan


Filed 8/30/10 (this opn. precedes companion case, S167100, also filed 8/30/1)

IN THE SUPREME COURT OF CALIFORNIA

In re EDWARD PATRICK MORGAN
on Habeas Corpus.
S162413
____________________________________)

Thirteen years ago, after he was convicted of capital murder and sentenced
to death, indigent petitioner Edward Patrick Morgan invoked his statutory right to
this court‟s appointment of habeas corpus counsel to challenge his conviction and
his death sentence. Today, he still lacks such counsel, because of a critical
shortage of qualified attorneys willing to represent capital prisoners in state habeas
corpus proceedings.
Now before us is a cursory one-claim habeas corpus petition, which lacks
any supporting exhibits. Petitioner asks us to defer a decision on his petition until
we appoint habeas corpus counsel and until that attorney has had a reasonable
opportunity to investigate various factual and legal matters that may lead to
additional claims for relief, to be presented in an amended petition. The Attorney
General opposes the request, urging us to deny the current petition as meritless.
We grant petitioner‟s request.

1

I
In 1996, an Orange County jury convicted petitioner of kidnapping Leona
Wong (Pen. Code, § 207),1 unlawfully penetrating her with a foreign object
(§ 289), and murdering her (§ 187). The jury also found true special circumstance
allegations that defendant committed the murder in the course of committing the
first two crimes. (§ 190.2, former subd. (a)(17)(ii), (xi).) Petitioner‟s appeal to
this court from the judgment of death was automatic. (§ 1239, subd. (b).)
In August 1996, petitioner asked us to appoint counsel to represent him on
his automatic appeal to this court (§ 1239, subd. (b)), and to appoint counsel to
prepare a habeas corpus petition on his behalf. In March 2000, we appointed
counsel to represent petitioner on appeal. But today, some 13 and a half years
after petitioner‟s request for appointed habeas corpus counsel, we still have not
found qualified counsel willing to accept the appointment. (The reasons are set
forth in pt. II, post.)
In November 2007, this court issued its unanimous opinion in petitioner‟s
appeal. We reversed the conviction for kidnapping and the kidnap-murder special
circumstance but otherwise affirmed the judgment, including the sentence of
death. (People v. Morgan (2007) 42 Cal.4th 593.) In March 2008, the United
States Supreme Court denied petitioner‟s petition for writ of certiorari.
In April 2008, the California Appellate Project (CAP),2 which has not been
appointed as petitioner‟s habeas corpus counsel, filed in this court a petition for

1
Unless otherwise stated, all statutory citations are to the Penal Code.
2
On its Web site, CAP gives this description of itself: “The California
Appellate Project in San Francisco (CAP-SF) is a non-profit corporation
established by the State Bar of California in 1983 as a legal resource center to
implement the constitutional right to counsel for indigent persons facing
execution. CAP serves the largest population of condemned individuals in the
(Footnote continued on next page.)
2


writ of habeas corpus on his behalf. Unlike the typical capital habeas corpus
petition, this petition is cursory and lacks supporting exhibits. It alleges just one
claim: that trial counsel‟s prejudicially deficient performance violated petitioner‟s
“right to the effective assistance of counsel and to a fair and reliable
determination” of his guilt of the crimes charged, of the truth of the special
circumstance allegations, and of the penalty to be imposed. Specifically,
petitioner faults his trial counsel for requesting a standard jury instruction
(CALJIC No. 4.20) on voluntary intoxication that was allegedly “inapplicable and
detrimental” to his case. Petitioner also faults counsel for failing to ask the trial
court to instruct the jury that CALJIC No. 4.21 (a standard instruction, given by
the court, stating that the jury may consider a defendant‟s voluntary intoxication
when relevant to the defendant‟s specific intent) “is an exception to the general
rule stated in CALJIC No. 4.20.” The petition also alleges broadly that
petitioner‟s trial counsel was incompetent because he did not “adequately
investigate and present additional evidence at the guilt phase in support of the
partial defense of intoxication,” and because he did not “present expert testimony
at the guilt phase regarding the intoxicating effects of alcohol, cocaine and

(Footnote continued from previous page.)
country and is funded primarily by a contract with the Judicial Council of
California. [¶] CAP-SF assists private counsel appointed by the California
Supreme Court to represent indigent defendants in capital cases challenging their
convictions and sentences on direct appeal and through habeas corpus
proceedings, and provides them with professional training and litigation resource
materials. In addition, CAP-SF assists unrepresented death row inmates by
collecting and preserving evidence for their post-conviction claims, and by
providing advocacy as needed during the period of incarceration before counsel is
appointed. CAP-SF also consults, at the request of the judiciary, on policy matters
regarding indigent defense representation in capital cases.”
(<http://www.capsf.org/About-CAPSF.asp> [as of Aug. 30, 2010].)
3


steroids, and their potential effect on an intoxicated person‟s ability to form the
required specific intent for violating Penal Code section 289 . . .”; the petition,
however, alleges no specific facts to support these broad allegations.
Petitioner‟s prayer for relief asks us to “[p]ermit petitioner to amend this
petition within 36 months after the appointment of habeas corpus counsel to
include additional claims as determined by habeas corpus counsel [and] [¶] [d]efer
informal briefing on this petition, should this Court desire such briefing, until
petitioner has filed the amended petition and provided the Court with all
reasonably available documentary evidence in support of the allegations in the
amended petition.”
As it has done here, CAP has filed a cursory petition on behalf of each
death row inmate who, upon the finality of the inmate‟s automatic appeal, lacked
habeas corpus counsel. Thus far, this court has granted each petition‟s request to
defer informal briefing and to permit amendment of the petition within 36 months
of habeas corpus counsel‟s appointment.
In June 2008, the Attorney General filed in this court a “Respondent‟s
Motion for Order to Show Cause,” requesting us to promptly consider the current
petition, to find it lacking in merit, and to summarily deny it. We issued an order
construing the Attorney General‟s request as an opposition to petitioner‟s request.
We asked both parties 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.”].)
II
In California, an indigent prisoner who has been convicted of a capital
crime and sentenced to death has a statutory right to the assistance of court-
appointed counsel not only on appeal (Douglas v. California (1963) 372 U.S. 353,
4


356-357; § 1240) but also in a habeas corpus proceeding (Gov. Code, § 68662).3
The latter right is at issue here. This statutory right to appointed habeas corpus
counsel “promotes the state‟s interest in the fair and efficient administration of
justice and, at the same time, protects the interests of all capital inmates by
assuring that they are provided a reasonably adequate opportunity to present us
their habeas corpus claims.” (In re Barnett (2003) 31 Cal.4th 466, 475.)
Ideally, the appointment of habeas corpus counsel should occur shortly
after an indigent defendant‟s judgment of death. An expeditious appointment
would enable habeas corpus counsel to investigate potential claims for relief and
to prepare a habeas corpus petition at roughly the same time that appellate counsel
is preparing an opening brief on appeal. This would ensure the filing of a habeas
corpus petition soon after completion of the briefing on the appeal. (See Cal.
Supreme Ct., Policies Regarding Cases Arising from Judgments of Death, policy
3, std. 1-1.1 [a habeas corpus petition “will be presumed to be filed without
substantial delay if it is filed within 180 days after the final due date for the filing
of appellant‟s reply brief on the direct appeal”].)
But our task of recruiting counsel has been made difficult by a serious
shortage of qualified counsel willing to accept an appointment as habeas corpus

3
Government Code section 68662 provides: “The [California] Supreme
Court shall offer to appoint counsel to represent all state prisoners subject to a
capital sentence for purposes of state postconviction proceedings, and shall enter
an order containing one of the following: [¶] (a) The appointment of one or more
counsel to represent the prisoner in postconviction state proceedings upon a
finding that the person is indigent and has accepted the offer to appoint counsel or
is unable to competently decide whether to accept or reject that offer. [¶] (b) A
finding, after a hearing if necessary, that the prisoner rejected the offer to appoint
counsel and made that decision with full understanding of the legal consequences
of the decision. [¶] (c) The denial to appoint counsel upon a finding that the
person is not indigent.”
5


counsel in a death penalty case. Quite few in number are the attorneys who meet
this court‟s standards for representation and are willing to represent capital
inmates in habeas corpus proceedings. The reasons are these: First, work on a
capital habeas petition demands a unique combination of skills. The tasks of
investigating potential claims and interviewing potential witnesses require the
skills of a trial attorney, but the task of writing the petition, supported by points
and authorities, requires the skills of an appellate attorney. Many criminal law
practitioners possess one of these skills, but few have both.4 Second, the need for
qualified habeas corpus counsel has increased dramatically in the past 20 years:
The number of inmates on California‟s death row has increased from 203 in 1987
to 670 in 2007. (Cal. Com. on the Fair Admin. of Justice, Final Rep. (2008) p. 121
(California Commission Final Report).)

4
Our rules of court provide: “An attorney appointed as lead or associate
counsel to represent a person in death penalty related habeas corpus proceedings
must have at least the following qualifications and experience: [¶] (1) Active
practice of law in California for at least four years. [¶] (2) Either: [¶] (A)
Service as counsel of record for a defendant in five completed felony appeals or
writ proceedings, including one murder case, and service as counsel of record for a
defendant in three jury trials or three habeas corpus proceedings involving serious
felonies; or [¶] (B) Service as counsel of record for a defendant in five
completed felony appeals or writ proceedings and service as supervised counsel in
two death penalty related habeas corpus proceedings in which the petition has
been filed. . . . [¶] (3) Familiarity with the practices and procedures of the
California Supreme Court and the federal courts in death penalty related habeas
corpus proceedings. [¶] (4) Within three years before appointment, completion
of at least nine hours of Supreme Court approved appellate criminal defense or
habeas corpus defense training, continuing education, or course of study, at least
six hours of which address death penalty habeas corpus proceedings. . . . [¶] (5)
Proficiency in issue identification, research, analysis, writing, investigation, and
advocacy . . . .” (Cal. Rules of Court, rule 8.605(e).) This court may appoint an
attorney who does not meet certain of these requirements if we find that the
attorney has other equivalent experience and the attorney can consult with an
attorney designated by the court. (Cal. Rules of Court, rule 8.605(f).)
6


California does have a Habeas Corpus Resource Center (HCRC), which the
California Legislature established in 1998 to represent indigent capital inmates in
postconviction habeas corpus matters. (See Gov. Code, § 68661.) But, as has
been observed, “the number of cases the HCRC can accept is limited both by a
statutory cap on the number of attorneys it may hire and by available fiscal
resources.” (Alarcon, Remedies for California’s Death Row Deadlock (2007) 80
So.Cal. L.Rev. 697, 739.)
Although hundreds of indigent death row inmates already have been
provided with appointed habeas corpus counsel, approximately 300 of these
inmates still lack such counsel. The search for qualified counsel can take eight to
10 years or longer. (Cal. Com. Final Rep., supra, at p. 122.) Here, petitioner still
does not have habeas corpus counsel after 13 years on death row.5
In filing a cursory one-claim habeas corpus petition now rather than
awaiting this court‟s appointment of habeas corpus counsel who could file a more
thorough petition at some future date, petitioner‟s apparent purpose is to preserve
his right to seek habeas corpus relief in the federal courts. 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 judgment of death is “final”

5
The concurring and dissenting opinion asserts that our practice of deferring
consideration of cursory habeas corpus petitions filed by unrepresented defendants
“eliminates any urgency to secure counsel” (conc. & dis. opn. of Corrigan, J., post,
p. 1) as a result of which “capital inmates may languish without representation for
several years” (ibid.). This practice should have no effect on the urgency of our
efforts to recruit qualified habeas corpus counsel to represent death row inmates,
and it has not had such effect.
7


upon the United States Supreme Court‟s denial of a capital inmate‟s petition for
writ of certiorari after our affirmance of the judgment, or upon expiration of the
time in which the inmate may seek certiorari in the federal high court. (Bowen v.
Roe (9th Cir. 1999) 188 F.3d 1157, 1159-1160.) To permit the inmate to exhaust
state remedies as to claims that must be raised in a habeas corpus petition rather
than on appeal, 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).)6
If consideration of the current habeas corpus petition is deferred as
petitioner has requested, and if that petition is ultimately denied in this court,
presumably petitioner will then seek habeas corpus relief in federal court
challenging his state court conviction and judgment of death, and asserting the
tolling of the federal statute of limitations during the pendency of his current
petition in our court. To date, no published federal court decision has addressed
this specific tolling issue under federal law. We express no view on this issue,
observing only that a denial 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
Relying primarily on this court‟s decision in In re Clark (1993) 5 Cal.4th
750 (Clark), the Attorney General argues that in light of “longstanding state

6
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.”
8


precedent,” we should not defer consideration of the current habeas corpus
petition.
We stated in Clark: “The law mandates prompt disposition of habeas
corpus petitions (§ 1476), and the interest of the state in the finality of judgment
weighs heavily against delayed disposition of pending petitions.” (Clark, supra, 5
Cal.4th at p. 782.) Accordingly, this court “must and will assume . . . that a
petition for writ of habeas corpus includes all claims then known to the petitioner.
Summary disposition of a petition which does not state a prima facie case for relief
is the rule.” (Id. at pp. 780-781.)
Clark further stated: “The inclusion in a habeas corpus petition of a
statement purporting to reserve the right to supplement or amend the petition at a
later date has no effect. The court will determine the appropriate disposition of a
petition for writ of habeas corpus based on the allegations of the petition as
originally filed and any amended or supplemental petition for which leave to file
has been granted.” (Clark, supra, 5 Cal.4th at p. 781, fn. 16; see also In re
Haygood (1975) 14 Cal.3d 802, 805.) This court will not “routinely delay action
on a filed petition to permit amendment and supplementation of the petition.”
(Clark, supra, at p. 781.) The purpose of these habeas corpus rules is to enable
this court, whenever possible, to consider all of a petitioner‟s claims
simultaneously and expeditiously, rather than piecemeal.
It is not a practice of this court to routinely defer a decision on a habeas
corpus petition and to permit its amendment so additional claims can be raised.
(Clark, supra, 5 Cal.4th at p. 781.) But an exception is called for because of the
critical shortage of qualified counsel willing to accept appointment as habeas
corpus counsel in a capital case. 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 counsel to pursue habeas corpus relief. Here, petitioner
9


invoked that right some 13 years ago. Due to circumstances beyond our control
(see pp. 6-7, ante), we have not yet been able to find a qualified attorney willing to
accept appointment as habeas corpus counsel for petitioner. Had there been
reasonably prompt compliance with petitioner‟s request, presumably he could
have filed a timely habeas corpus petition in this court and, if that petition was
denied, he could have filed a timely habeas corpus petition in federal court.7
The Attorney General characterizes the current petition that CAP has filed
on petitioner‟s behalf as nothing more than a “shell petition,” filed solely to toll
the federal statute of limitations, and he urges us to compel petitioner to file a “real
habeas petition in a genuine effort to exhaust state remedies.” It would be grossly
unfair, however, to impose this difficult task on petitioner himself, an indigent
death row inmate who is untrained in the law and statutorily entitled to appointed
habeas corpus counsel. The advantages of having an experienced attorney prepare
and file a habeas corpus petition were succinctly summed up in a prior decision of

7
According to the concurring and dissenting opinion, this court‟s practice of
deferring consideration of cursory habeas corpus petitions filed by unrepresented
petitioners is “essentially a gesture of largesse from this court” (conc. & dis. opn.
of Corrigan, J., post, p. 1) that “serve[s] no state interest” (id., p. 6). To the
contrary, California‟s “state interest” in providing death row inmates with
qualified habeas corpus counsel is reflected in its statutory scheme (Gov. Code,
§ 68662), and our practice of deferring consideration of cursory habeas corpus
petitions is an attempt to remedy a consequence of this court‟s inability, due to
circumstances beyond our control, to timely provide such inmates with the legal
representation that is theirs by right.

The concurring and dissenting opinion asserts that this court‟s practice of
deferring consideration of cursory habeas corpus petitions filed by unrepresented
petitioners “will inevitably contribute to the lengthy delays our state experiences
in resolving capital cases.” (Conc. & dis. opn. of Corrigan, J., post, p. 5.) What is
causing the delay, however, is not that practice but this court‟s inability so far to
recruit qualified habeas corpus counsel for each of the hundreds of death row
inmates.

10


this court: “[W]ith their formal legal training, professional experience, and
unrestricted access to legal and other resources, counsel possess distinct
advantages over their inmate clients in investigating the factual and legal grounds
for potentially meritorious habeas corpus claims and in recognizing and preparing
legally sufficient challenges to the validity of the inmates‟ death judgments.” (In
re Barnett, supra, 31 Cal.4th at p. 477.)
As noted earlier, the current one-claim petition was prepared and filed by
CAP, which is not acting in the capacity of appointed habeas corpus counsel, but
is performing its task of “providing advocacy as needed during the period of
incarceration before counsel is appointed.” (CAP Web site, supra; see fn. 2, ante.)
In light of CAP‟s limited resources, the current petition is by necessity quite
cursory.
The Attorney General argues that federal habeas corpus proceedings are
“costly, disruptive, and counter-effective to the enforcement of state law” and that
therefore this court should not defer consideration of the petition now before us.
But whether federal habeas corpus proceedings are, as the Attorney General
contends, detrimental to the enforcement of state law is not at issue here. At issue
is whether this court should defer consideration of petitioner‟s incomplete habeas
petition (filed without the assistance of appointed counsel) to avoid potential
prejudice to his right to seek federal habeas corpus relief in the federal courts. The
source of this potential prejudice is this court‟s lengthy but unavoidable delay in
recruiting qualified counsel willing to accept an appointment as habeas corpus
counsel for petitioner, a death row inmate.
In light of the unusual circumstances presented, we grant petitioner‟s
request to defer a decision in this matter until we have appointed habeas corpus
counsel and until that attorney has had a reasonable opportunity to investigate
various factual and legal matters for potentially meritorious claims to be presented
11


in an amended habeas corpus petition. If we ultimately deny the petition, any
issue pertaining to the adequacy of petitioner‟s compliance with the federal statute
of limitations governing habeas corpus petitions is for the federal courts to decide.
DISPOSITION
We grant petitioner‟s request to defer consideration of his current habeas
corpus petition pending the appointment of habeas corpus counsel by this court
and the filing of an amended petition within 36 months of counsel‟s appointment.
The Attorney General‟s motion in opposition to that request is denied.
KENNARD, J.
WE CONCUR:

GEORGE, C. J.
WERDEGAR, J.
CHIN, J.
MORENO, J.

12

CONCURRING AND DISSENTING OPINION BY CORRIGAN, J.
I concur in the disposition of this case and In re Jimenez (Aug. __, 2010,
S167100) __ Cal.4th __, because it appears the petitions were filed in reliance on
this court‟s informal practice of accepting them. However, I strongly believe we
should no longer allow the filing of “shell” habeas corpus petitions. Shell
petitions are not true petitions at all, but merely placeholders designed to toll the
federal statute of limitations. Further, shell petitions serve no state interest.
California‟s obligation to ensure due process for capital defendants is addressed by
our state‟s established appellate and habeas corpus procedures. Perversely, the
practice of accepting shell petitions ill serves both defendants and the public.
Because it eliminates any urgency to secure counsel, capital inmates may languish
without representation for several years. The practice also burdens this court and
adds greatly to the long delays in death penalty proceedings. It is our obligation to
find qualified counsel for capital habeas cases. We should seriously consider how
we are discharging that obligation in light of the delays the majority describes. It
is not, however, our proper role to help one class of convicted inmates evade a
federal statute of limitations. I therefore dissent from the majority‟s holding
approving shell petitions.
I.
Background
Congress‟s enactment of a one-year statute of limitations for federal habeas
corpus petitions created special problems for death row inmates in California.
Although capital inmates have a statutory right to counsel for both their state
(Gov. Code, § 68662) and federal (18 U.S.C. § 3599(a)(2)) habeas claims, it has
1


typically taken many years, even after the judgment is final on appeal, before a
lawyer can be found who will represent a capital inmate in state post-conviction
proceedings. This delay does not compromise the inmate‟s state habeas petition,
because we presume such a petition to be timely so long as it is brought within
three years after the appointment of habeas counsel. (Cal. Supreme Ct., Policies
Regarding Cases Arising from Judgments of Death, policy 3-1-1.1.) However, the
short limitations period mandated for federal habeas petitions by AEDPA1 differs
from California‟s substantially more generous timeliness rules. Because of
endemic delays in our state‟s appointment of capital habeas counsel, the federal
statute of limitations can expire before an inmate can “stop the clock” with a
properly filed state habeas petition. (28 U.S.C. § 2244(d)(2) (section 2244(d)(2))
[providing that the federal limitations period is tolled during the time “a properly
filed application for State post-conviction or other collateral review” is pending].)
When AEDPA was first passed, California‟s capital inmates who wished to
preserve their federal remedies faced a difficult choice. They could either file a
state habeas petition without the benefit of counsel, to stop the federal clock, or
file a timely federal habeas petition but risk its dismissal for the failure to exhaust
all claims in state court. (See Rose v. Lundy (1982) 455 U.S. 509.)2
The first shell petition filing was allowed in December 2001, in the case of
In re Taylor, S102652. Taylor‟s habeas counsel had withdrawn relatively late in
the proceedings, and the Habeas Corpus Resource Center (HCRC) refused to
accept an appointment unless we allowed it to file a shell petition. After informal

1
Antiterrorism and Effective Death Penalty Act of 1996 (110 Stat. 1214; see
28 U.S.C. § 2244(d)(1)(A)).
2
The federal courts have since resolved this dilemma by adopting a stay and
abeyance procedure. Rather than dismissing a petition containing unexhausted
claims, the district court now has discretion to stay action on it while the petitioner
returns to state court to exhaust all remedies. (See Rhines v. Weber (2005) 544
U.S. 269.)
2


discussions with HCRC and with no input from the Attorney General, we agreed
to accept a placeholder, or “shell,” petition in that one case. The sole purpose of
the shell petition was to toll the federal statute of limitations while HCRC
investigated and prepared a substantive state habeas petition. The shell petition
procedure thus originated as an informal accommodation made to secure
representation under the unusual circumstances of that single case. It was adopted
after discussions with only one side, and it has never been approved in a formal
rule. Nevertheless, the practice of filing shell petitions has become almost routine
in capital cases. We have accepted more than 50 shell habeas petitions in the
ensuing nine years. Yet, of all these shell petitions, only two have been litigated to
conclusion in this court. Our habeas docket has become the extended home for an
increasing number of capital cases, and the problem is likely to worsen. Michael
Laurence, Executive Director of HCRC, stated at oral argument that there are
currently 322 capital inmates in California without habeas corpus counsel. Two-
thirds of these cases are advancing toward finality because a lawyer has been
appointed for the direct appeal.
II.
The Shell Petition Procedure Disserves California’s Interests
This court does continue to have great difficulty finding counsel to
represent capital inmates in habeas matters. However, allowing capital inmates to
delay federal post-conviction consideration through a sham procedure is not an
appropriate response. The shell petition procedure not only puts an unreasonable
strain on this court, it also undermines California‟s strong interest in the finality of
its judgments. Furthermore, it runs directly contrary to our own well-established
precedent.
Our cases have long emphasized that habeas corpus is an extraordinary
remedy “and that the availability of the writ properly must be tempered by the
necessity of giving due consideration to the interest of the public in the orderly and
reasonably prompt implementation of its laws and to the important public interest
in the finality of judgments.” (In re Robbins (1998) 18 Cal.4th 770, 778; see also
3


In re Clark (1993) 5 Cal.4th 750, 764.) We have developed a variety of
procedural rules governing proper use of the writ to serve these important public
interests and to “protect[] the integrity of our own appeal and habeas corpus
process.” (In re Robbins, at p. 778, fn. 1, italics omitted.) One such rule is this
court‟s longstanding refusal to consider successive petitions, whether they raise
claims previously urged or state new grounds for relief that were known when a
previous petition was filed. (In re Clark, at pp. 769-770; In re Horowitz (1949) 33
Cal.2d 534, 546-547.)
As Justice Baxter explained for the majority in Clark, the rule against
successive petitions is grounded in considerations of fundamental importance:
“When a habeas corpus petition is denied on the merits, the court has determined
that the claims made in that petition do not state a prima facie case entitling the
petitioner to relief. A successive petition presenting additional claims that could
have been presented in an earlier attack on the judgment is, of necessity, a delayed
petition. [There is] no persuasive reason for routinely permitting consideration of
the merits of such claims. Were we to do so we would sanction a practice which
unreasonably delays execution of judgment and imposes undue burdens on the
state both in responding to claims made in delayed petitions and in marshalling
stale evidence when retrial is necessary. Successive petitions also waste scarce
judicial resources as the court must repeatedly review the record of the trial in
order to assess the merits of the petitioner‟s claims and assess the prejudicial
impact of the constitutional deprivation of which he complains. [¶] Willingness
by the court to entertain the merits of successive petitions seeking relief on the
basis of the same set of facts undermines the finality of the judgment. Moreover,
such piecemeal litigation prevents the positive values of deterrence, certainty, and
public confidence from attaching to the judgment. The values that inhere in a final
judgment are equally threatened by petitions for collateral relief raising claims that
could have been raised in a prior petition.” (In re Clark, supra, 5 Cal.4th at
p. 770.)
4


A corollary of the rule against successive petitions is the rule that all known
claims must be brought in a single, timely habeas corpus petition. (In re Clark,
supra, 5 Cal.4th at pp. 780-782, 797.) A petitioner cannot delay, then seek to add
claims to a petition at a later date. We explained in Clark that, if a petitioner “is
aware of facts adequate to state a prima facie case for habeas corpus relief,” the
petition should include a claim based on these facts “even if the claim is not fully
„developed.‟ ” (Id. at p. 781.) Nor should a petitioner expect the court to delay
action on a petition to permit future amendment. “The court must and will assume
. . . that a petition for writ of habeas corpus includes all claims then known to the
petitioner.” (Id. at pp. 780-781.) Further, we expressly cautioned in Clark that
“[t]he inclusion in a habeas corpus petition of a statement purporting to reserve the
right to supplement or amend the petition at a later date has no effect.” (Id. at
p. 781, fn. 16, italics added.)
The shell petition procedure is in obvious conflict with these important
rules. It was created and has been perpetuated to benefit only one side, in post-
conviction litigation in a different forum. It is even more remarkable for the court
to exempt death row inmates from the long-standing rule against successive
habeas petitions, considering that these are the prisoners with the most incentive to
delay.
Shell petitions will inevitably contribute to the lengthy delays our state
experiences in resolving capital cases. Petitioners advised this court that
Louisiana has also adopted a shell petition procedure for tolling the AEDPA
statute of limitations. (See State ex rel. Weary v. State (La. 2009) 12 So.3d 968,
969 fn. 3.) Notably, however, two justices of the Louisiana Supreme Court
recently complained of excessive delays and urged the state to reconsider its use of
the shell procedure. They wrote: “The delays caused in post-conviction
proceedings by filing „shell‟ applications and the granting of continuances have
unreasonably delayed the finality of death penalty cases. This practice has
effectively stopped the State from carrying out the sentence in capital cases at
5


great expense to the State. It appears our courts have had little effect in
discouraging these delaying techniques. It is probably appropriate now for the
Legislature to address this aspect of post-conviction proceedings if this State is
going to continue to have capital sentences.” (Id. at p. 970 (conc. & dis. opn. of
Knoll, J.).)
Not only do shell petitions exacerbate delay, they serve no state interest.
The Legislature has granted capital inmates a right to counsel. (Gov. Code,
§ 68662.) This court has adopted generous rules for compensating these attorneys
and generous timelines for them to litigate state habeas petitions. (See Cal.
Supreme Ct., Payment Guidelines for Appointed Counsel Representing Indigent
Criminal Appellants in the California Supreme Court, guideline 2.) According to
our internal estimates, the average cost to pay private counsel for handling the
direct appeal in a capital case ranges from $180,000 to $250,000. In the rare
instances when an attorney handles both the appeal and the habeas corpus petition,
the median fixed-fee compensation is around $283,000, with an additional
$50,000 provided to reimburse investigation expenses. The typical cost to pay a
second private attorney for preparing a separate state habeas petition ranges from
$230,000 to $250,000 in fixed-fee compensation, or up to $300,000 in hourly
compensation. Thus, when different attorneys handle the appeal and state habeas
petition, their compensation can easily reach or exceed $500,000.
Shell petitions do nothing whatsoever to promote the state‟s interest in
providing counsel to habeas corpus petitioners, nor its interest in having all capital
habeas claims decided first by California courts.3 Moreover, the United States
Supreme Court has made clear that a state‟s delay in appointing state habeas
counsel does not make the state accountable for an inmate‟s failure to satisfy the

3
Even if the conflicting timeliness rules required capital prisoners to file
habeas petitions in federal court first, federal exhaustion rules would still ensure
that the claims were first addressed in a state forum.
6


statute of limitations for seeking federal habeas relief. In Lawrence v. Florida
(2007) 549 U.S. 327, 336-337, a capital prisoner argued he was entitled to
equitable tolling because an attorney who was appointed and supervised by the
state courts had miscalculated the federal limitations period. The Supreme Court
rejected this argument, noting that the petitioner had not alleged the state
prevented him from hiring his own attorney or representing himself. (Id. at
p. 337.)4 The court observed: “[A] State‟s effort to assist prisoners in
postconviction proceedings does not make the State accountable for a prisoner‟s
delay. . . . It would be perverse indeed if providing prisoners with postconviction
counsel deprived States of the benefit of the AEDPA statute of limitations.”
(Lawrence, at p. 337, italics added.)
The shell procedure is essentially a gesture of largesse from this court. Its
sole purpose is to help capital inmates preserve their ability to launch additional
collateral attacks on their convictions in federal court.5 It is true that the AEDPA

4
The court assumed without deciding that 28 U.S.C. section 2244(d) permits
equitable tolling. (Lawrence v. Florida, supra, 549 U.S. at p. 336.) Recently, the
court confirmed that the AEDPA statute of limitations is subject to equitable
tolling. (Holland v. Florida (2010) __ U.S. __ [130 S.Ct. 2549].)
5
We do not even know if the gambit will be successful. It remains uncertain
whether federal courts will ultimately construe a shell petition to be “properly
filed” for purposes of statutory or equitable tolling. (Compare Voravongsa v. Wall
(1st Cir. 2003) 349 F.3d 1, 7 [under Rhode Island law, pro se prisoner‟s
application for appointment of counsel in state habeas proceedings was not a
“properly filed application” sufficient to toll the AEDPA statute of limitations],
with Isley v. Ariz. Dept. of Corrections (9th Cir. 2004) 383 F.3d 1054, 1055-1056
[under Arizona law, prisoner‟s filing of a “Notice of Post-Conviction Relief,”
which invoked the right to counsel, was sufficient to toll the federal statute of
limitations], overruled on a related point in Summers v. Schriro (9th Cir. 2007)
481 F.3d 710; see also Jihad v. Hvass (8th Cir. 2001) 267 F.3d 803 [holding that
the inability to retain counsel is not an extraordinary circumstance justifying
equitable tolling].) Although the federal courts will likely defer to our state rules
in determining whether a petition has been properly filed (see Artuz v. Bennett
(2000) 531 U.S. 4), a capital habeas petition is not considered “pending” under
(Footnote continued on next page.)
7


statute of limitations puts unrepresented capital inmates in a difficult position.
However, California already provides its own more generous system for habeas
review. The federal government is free to regulate its own system, and, in fact, the
federal courts have developed their own procedural solution to the problem at
hand.
III.
The Federal “Stay and Abeyance” Procedure Is Preferable
Shortly after AEDPA went into effect, Justice Stevens identified the
procedural conflict created by the intersection of AEDPA‟s one-year statute of
limitations and the high court‟s holding in Rose v. Lundy, supra, 455 U.S. 509,
that habeas petitions containing any unexhausted claims must be dismissed
without prejudice to refiling after the claims have been exhausted. (Duncan v.
Walker (2001) 533 U.S. 167, 182-183 (conc. opn. of Stevens, J.).) Because the
court in Duncan held that the limitations period is not tolled while a petition is
pending in federal court, by the time a federal district court determined that some
claims required exhaustion, a petitioner could find that the AEDPA statute of
limitations had expired, precluding federal review of any of his claims. (Id. at
p. 182.) Justice Stevens remarked, “[I]n our post-AEDPA world, there is no
reason why a district court should not retain jurisdiction over a meritorious claim
and stay further proceedings pending the complete exhaustion of state remedies.
Indeed, there is every reason to do so . . . .” (Id. at pp. 182-183.) When
confronted with this precise problem four years later, the Supreme Court
unanimously approved the stay and abeyance procedure. In Rhines v. Weber,
supra, 544 U.S. 269, the court held that when a state prisoner files a “mixed”

(Footnote continued from previous page.)
federal law unless it seeks an adjudication on the merits. (Woodford v. Garceau
(2003) 538 U.S. 202, 206-207.) Shell petitions do not satisfy this requirement
because they seek only to delay an adjudication on the merits.
8


habeas corpus petition in federal court containing some claims that have been
exhausted and some that have not, the district court has discretion to stay
proceedings on the mixed petition and hold it in abeyance while the petitioner
returns to state court to litigate the unexhausted claims. Although mixed petitions
should not be stayed indefinitely, particularly in capital cases where petitioners
have a strong incentive to delay, the court warned that “it likely would be an abuse
of discretion for a district court to deny a stay and to dismiss a mixed petition if
the petitioner had good cause for his failure to exhaust, his unexhausted claims are
potentially meritorious, and there is no indication that the petitioner engaged in
dilatory litigation tactics.” (Id. at p. 278.)
The stay and abeyance procedure approved by the Supreme Court offers
California‟s capital inmates an established means of preserving their federal
habeas claims. A federal statute created the timeliness problems these prisoners
face, and the federal courts have crafted a solution. Rather than unilaterally
inventing our own special procedures that may or may not allow capital inmates to
evade the AEDPA statute of limitations, we should end the shell petition practice
and direct these inmates to follow the federal stay and abeyance path.
This approach would require capital inmates to file a habeas petition in
federal district court within one year after their conviction is final. Our difficulty
finding attorneys to represent these prisoners in habeas matters would not
necessarily be an obstacle to this filing because capital inmates have a statutory
right to counsel in federal post-conviction proceedings. (18 U.S.C. § 3599(a)(2).)
This right to counsel attaches before the filing of a federal habeas petition, and it is
invoked when a capital prisoner files an application in federal court seeking
appointment of an attorney. (McFarland v. Scott (1994) 512 U.S. 849, 856-857.)
The legal obligation would therefore be on the federal system to appoint counsel
in time to prepare the federal habeas petition.
For a petitioner to benefit from the stay and abeyance procedure, the federal
petition would have to contain a mixture of exhausted and unexhausted claims. In
9


addition to exhausted claims, which were litigated to conclusion on direct appeal,
petitioners would have to allege the factual basis for possible unexhausted claims
they might wish to litigate in federal habeas proceedings. New claims for relief in
an amended petition do not relate back to the original petition, thus making them
timely, unless they arise from the same “ „conduct, transaction or occurrence‟ ” set
forth in the original petition. (Mayle v. Felix (2005) 545 U.S. 644, 649.)
Certainly, it might be difficult to identify all potential new claims within a year
after an inmate‟s conviction has become final on appeal. Indeed, the time frame
may be even shorter if the district court is slow to appoint counsel. But these
limits on the availability of the federal writ were imposed by Congress and the
federal courts. It is remarkable that we would formally adopt a procedure
designed solely to help capital prisoners evade them. Further, we should be
mindful that capital cases take years to litigate in the trial court and many more
years to resolve by direct appeal. It is not unreasonable to expect that a capital
defense team at least contemplate potential habeas claims during this lengthy
period.
IV.
Conclusion
If California‟s system worked as intended, habeas counsel would be
appointed for capital defendants during the litigation of their direct appeals. Such
counsel would have ample time to investigate, prepare, and file state habeas
petitions within a year after conclusion of the appellate process, thus tolling the
deadline for filing a federal habeas petition under section 2244(d)(2). That should
continue to be our goal.
Our rules do not penalize pre-filing delays in capital habeas proceedings.
Because a state habeas petition is presumed timely if it is filed within six months
after filing of the appellant‟s reply brief or three years after the appointment of
habeas counsel, whichever is later (Cal. Supreme Ct., Policies Regarding Cases
Arising from Judgments of Death, policy 3, std. 1-1.1), capital inmates have little
incentive to demand an expeditious appointment of habeas counsel. Perhaps the
10


time has come to change this aspect of our rules. However, we should resist the
suggestion that this court is somehow obligated to help capital prisoners delay the
federal limitations period because we have had difficulty appointing counsel for
their state habeas petitions. Congress created clear consequences for delay when
it enacted AEDPA‟s one-year statute of limitations for federal habeas petitions.
Nevertheless, without authorization by statute or rule of court, the majority now
approves of an informally adopted procedure designed expressly to thwart this
Congressional aim. This court should not abandon its general rules and fashion a
sham procedure solely to enable a small set of habeas petitioners to evade federal
law.

CORRIGAN, J.
I CONCUR:
BAXTER, J.
11


See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion In re Morgan __________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding XXX
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No. S162413
Date Filed: August 30, 2010
__________________________________________________________________________________

Court:
County:
Judge:


__________________________________________________________________________________

Attorneys for Appellant:
Michael G. Millman for Petitioner Edward Patrick Morgan.

__________________________________________________________________________________

Attorneys for Respondent:
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W.
Schons, Assistant Attorney General, Holly D. Wilkens, Randall D. Einhorn and Ronald S. Matthias,
Deputy Attorneys General, for Respondent State of California.


Counsel who argued in Supreme Court (not intended for publication with opinion):
Michael G. Millman
California Appellate Project
101 Second Street, 6th Floor
San Francisco, CA 94105
(415) 495-0500

Dane R. Gillette
Chief Assistant Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
(415) 703-5858

In this case, which is related to the automatic appeal in People v. Morgan (2007) 42 Cal.4th 593, the Court ordered briefing in relation to respondent's Motion for Order to Show Cause addressing why, under applicable principles of California law, the court should deny petitioner's requests to permit petitioner to amend the petition within 36 months after the appointment of habeas corpus counsel to include additional claims as determined by habeas corpus counsel, and to defer informal briefing on the petition filed on April 9, 2008, until 36 months after the appointment of habeas corpus counsel, and why the court instead should summarily deny the petition.

Opinion Information
Date:Citation:Docket Number:Category:Status:Cross Referenced Cases:
Mon, 08/30/201050 Cal. 4th 932, 237 P.3d 993, 114 Cal. Rptr. 3d 591S162413Habeas (AA Post-Judgment)opinion issued

ZAMUDIO JIMENEZ (SAMUEL) ON H.C. (S167100)


Parties
1Morgan, Edward Patrick (Petitioner)
San Quentin State Prison
Represented by California Appellate Project - Sf
Michael G. Millman, Executive Director
101 Second Street, Suite 600
San Francisco, CA

2Department of Corrections & Rehabilitation (Non-Title Respondent)
Represented by Dane R. Gillette
Office of the Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA

3Department of Corrections & Rehabilitation (Non-Title Respondent)
Represented by Ronald S. Matthias
Office of the Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA

4Department of Corrections & Rehabilitation (Non-Title Respondent)
Represented by Attorney General - San Diego Office
Randall Einhorn, Deputy Attorney General
P.O. Box 85266
San Diego, CA


Opinion Authors
OpinionJustice Joyce L. Kennard
ConcurJustice Carol A. Corrigan

Disposition
Aug 30 2010Opinion filed

Dockets
Apr 4 2008Petition for writ of habeas corpus filed (AA)
  by the California Appellate Project, San Francisco (16 pp.)
Jun 16 2008Motion filed (AA)
  respondent's motion for order to show cause.
Jul 16 2008Letter sent to:
  Michael Millman, Executive Director of the California Appellate Project (CAP), requesting a response to motion for order to show cause, filed on June 16, 2008. The response must be served and filed on or before August 15, 2008. Respondent will then have 20 days in which to serve and file a reply.
Aug 15 2008Opposition filed
  by Michael Millman (CAP), to respondent's motion for order to show cause.
Sep 3 2008Filed:
  "Respondent's Reply to Opposition to Motion for Order to Show Cause"
Apr 29 2009Supplemental briefing ordered
  In relation to the Motion for Order to Show Cause filed on June 16, 2008, the Attorney General is to serve and file, on or before May 29, 2009, a brief addressing why, under applicable principles of California law, the court should deny petitioner's requests to permit petitioner to amend the petition within 36 months after the appointment of habeas corpus counsel to include additional claims as determined by habeas corpus counsel, and to defer informal briefing on the petition filed on April 9, 2008, until 36 months after the appointment of habeas corpus counsel, and why the court instead should summarily deny the petition. Within 30 days of service of the Attorney General's brief, petitioner is to serve and file a response brief. Within 30 days of service of the petitioner's response brief, the Attorney General may serve and file a reply brief. Upon completion of the briefing, the Clerk will set this matter for oral argument pursuant to rule 8.54(b)(2) of the California Rules of Court.
May 29 2009Supplemental brief filed
Non-Title Respondent: Department of Corrections & RehabilitationAttorney: Ronald S. Matthias   Respondent's Supplemental Brief. (24 pp.)
Jun 30 2009Supplemental brief filed
Petitioner: Morgan, Edward PatrickAttorney: California Appellate Project - Sf   petitioner's "Response to respondent's supplemental brief." (20 pp.)
Jul 1 2009Filed:
  by petitioner, "Supplemental Declaration of Service by U.S. Mail" on respondent.
Jul 1 2009Filed:
  by petitioner, Certificate of Compliance. (word count)
Jul 29 2009Supplemental reply brief filed
Non-Title Respondent: Department of Corrections & RehabilitationAttorney: Ronald S. Matthias   by respondent, "People's Supplmental Reply Brief" (17 pp.)
Mar 12 2010Oral argument letter sent
  advising counsel that pursuant to rule 8.54(b)(2) of the California Rules of Court, the court could schedule argument on respondent's motion for order to show cause as early as the first May calendar, to be held the week of May 3, 2010, in San Francisco.
Apr 5 2010Received:
  letter from petitioner's counsel, Michael Millman of the California Appellate Project, dated April 2, 2010, requesting that the court not schedule oral argument for the week of May 24, 2010.
Apr 5 2010Letter sent to:
  Michael Millman, Executive Director of the California Appellate Project (SF), advising that the court has considered his April 2, 2010 letter requesting that oral argument not be scheduled for the week of May 24, 2010. In light of this request, it is likely that both this case and In re Samuel Zamudio Jimenez on Habeas Corpus, No. S167100, will be set on the Los Angeles calendar on June 1 or 2, 2010.
May 5 2010Case ordered on calendar
  to be argued Tuesday, June 1, 2010, at 2:00 p.m., in Los Angeles
May 5 2010Order filed
  For purposes of oral argument, respondent Department of Corrections and Rehabilitation will argue first and may reserve time for rebuttal; petitioner will argue second.
May 11 2010Received:
  appearance sheet from Chief Assistant Attorney General Dane R. Gillette, indicating 30 minutes for oral argument for respondent.
May 11 2010Stipulation filed
  Stipulation by counsel Dane R. Gillette, that respondent has no objection to Justice Kennard's participation in the deliberations and decision in this matter notwithstanding her absence from oral argument.
May 11 2010Received:
  appearance sheet from Executive Director of the California Appellate Project (SF), Michael G. Millman, indicating 30 minutes for oral argument for petitioner.
May 13 2010Stipulation filed
  Stipulation by counsel Michael G. Millman, that petitioner has no objection to Justice Kennard's participation in the deliberations and decision in this matter notwithstanding her absence from oral argument.
May 18 2010Filed:
  respondent's focus issues letter, dated May 18, 2010.
Jun 1 2010Cause argued and submitted
 
Jun 18 2010Received:
  letter from Michael Millman, California Appellate Project - SF, dated June 18, 2010, re USSC decision in Holland v. Florida (June 14, 2010) 560 U.S. __ (2010 WL 2346549).
Jun 21 2010Received:
  letter from Dane Gillette, Chief Assistant Attorney General, dated June 21, 2010, re USSC decision in Holland v. Florida (June 14, 2010) 560 U.S. __ (2010 WL 2346549).
Jul 8 2010Received:
  letter from Chief Assistant Attorney General Dane Gillette, dated July 8, 2010, re Ninth Circuit's decision issued on July 6, 2010 in Lee v. Lampert (July 6, 2010) __F.3d__,2010 WL ____.
Aug 27 2010Notice of forthcoming opinion posted
  To be filed Monday, August 30, 2010 @ 10 a.m.
Aug 30 2010Opinion filed
  We grant petitioner's request to defer consideration of his current habeas corpus petition pending the appointment of habeas corpus counsel by this court and the filing of an amended petition within 36 months of counsel's appointment. The Attorney General's motion in opposition to that request is denied.

Brief Downloads
application/pdf icon
petitioners-petition-for-writ-of-habeas-corpus.pdf (151526 bytes) - Morgan's "shell" habeas petition
application/pdf icon
petitioners-opposition-to-respondents-motiton.pdf (173055 bytes) - Morgan's Opposition to People's Order to Show Cause
application/pdf icon
respondents-supplemental-brief.pdf (222132 bytes) - People's Supplemental Reply Brief
application/pdf icon
petitioners-response-to-respondents-supplemental-brief.pdf (233005 bytes) - Morgan's Response to People's Supplemental Brief
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website
Nov 20, 2010
Annotated by aburns

FACTS/PROCEDURAL POSTURE:
Petitioner was convicted of capital murder, penetrating his victim with a foreign object and kidnapping her. He was sentenced to death in 1996. Petitioner requested appointment of counsel for both automatic appeal and state habeas corpus proceedings. Appellate counsel was appointed, and in 2007, the appeal was decided, reversing the kidnapping charge and kidnap-murder special circumstance, but affirming the murder conviction and death sentence (People v. Morgan, 42 Cal.4th 593). The United States Supreme Court denied certioarari in 2008. The California Appellate Project filed the “shell petition” at issue here, with only one quite general claim (for ineffective assistance of counsel), and no supporting documentation, in April 2008, with the intention amending the petition in the future when counsel was appointed; as of this decision, habeas counsel has still not been appointed. In June 2008, the Attorney General filed a motion for an order to show cause why the petition should not be summarily denied. The Court ordered briefing on the issue, and this opinion addresses the request to dismiss the shell petition immediately.

ISSUE:
Should the Court defer consideration of a cursory, one-claim “shell petition” filed on behalf of a death row inmate who is waiting for statutorily guaranteed appointment of habeas counsel, presumably for the purpose of tolling the statute of limitations on federal habeas corpus petitions, until counsel is appointed and has a chance to investigate the case and amend the petition?

HOLDING:
 Because there is a shortage of available habeas consel, the Court will defer decision until habeas counsel is appointed and has a reasonable chance to investigate and ammend the petition to avoid prejudice to petitioner’s right to federal postconviction proceedings.
(Not decided: whether these shell petitions will actually be considered “properly flied” for puroses of tolling the federal statute.)

REASONING (by Kennard, J.):

California guarantees by statute appointment of habeas counsel for indigent prisoners under a death sentence ( Gov. Code § 68662). There is, however, a critical shortage of qualified and willing attorneys, with the result that prisoners often wait an extraordinarily long time on death row before habeas counsel is appointed.

The passage of the federal statute AEDPA in 1996 instituted, among other provisions, a one-year statute of limitations for filing of a federal habeas petition, which begins to run when direct appeals are exhausted or the time to file them has passed ( 28 U.S.C. § 2244(d)(1)(a)). The statute tolls this limitation period if a state post-conviction proceeding is pending (28 U.S.C. § 2244(d)(2)). In other words, a prisoner has one year from the time his appeal is decided, unless he files a state habeas petition, which would “stop the clock.”

The purpose of the so-called shell petitions thus appears to be to toll the statute of limitations on filing a federal habeas petition while the prisoner is waiting for appointment of state habeas counsel, who will properly investigate and amend the petition. In other words, without the shell petition, the chance to file a federal habeas petition would expire while the prisoner was waiting on death row for the habeas counsel guaranteed to him by California law, and he would lose his chance for federal review.

Though there is precedent in California for reviewing habeas petitions promptly ( In re Clark, 5 Cal.3d 750), the current circumstances of extreme shortage of available habeas counsel warrant an exception to that general principle. To avoid prejudice to the petitioner’s right to seek federal habeas relief, the Court must refrain from considering his incomplete petition until qualified habeas counsel is apointed and has the opportunity to prepare a more complete petition.

CONCURRING AND DISSENTING OPINION (Corrigan, J.):
Judge Corrigan believes that the present petitioner should be allowed to amend his petition when counsel is appointed, as it was filed in reliance on the court’s informal practice of allowing the shell petitions, but would eliminate the practice going forward, forcing petitioners to rely instead on an established federal procedure for staying proceedings.

In particular, she objects that allowing these petitions will eliminate the urgency to secure habeas counsel and delay death penalty proceedings, without serving any state interest. She believes, relying on Clark, that shell petitions, filed with the expectation that they will be amended when counsel is appointed, amount to successive petitions, which California courts have expressly forbidden.

She notes that the federal system already has a procedure for handling the conflict of the AEDPA statute of limitations with the requirement that petitioners first exhaust their remedies in state court, the so-called “Stay and Abeyance” procedure: rather than dismissing petitions containing unexhausted claims (i.e. claims that were not raised in state court), federal district courts can retain jurisdiction over the petitions, and stay federal proceedings while the litigant returns to state court to exhaust his claims, thus preventing the statute of limitations from running while the litigant completes his state postconviction proceedings. Rhines v. Weber, 544 U.S. 269 (2005).

Judge Corrigan would thus have petitioners whose direct appeals are final go ahead and file in federal court, where they have a statutory right to appointed counsel under federal law, ( 18 U.S.C. § 3599(a)(2)), then go to state court to litigate their claims there, then return to federal court. Judge Corrigan finds this solution preferable because it is the federal system’s chosen solution to a federally-created problem.

It is not, she asserts, the place of a state court to help prisoners evade limits imposed by congress.

RELATED CASES:
People v. Morgan, 42 Cal.4th 593 (2007)
In re Clark, 5 Cal.3d 750 (1993)
Rhines v. Weber, 544 U.S. 269 (2005)
In re Zamudio Jimenez (SCOCal listing for companion case)

TAGS: death penalty, habeas corpus, shell petitions, AEDPA, capital defendants, appointed counsel, Gov. Code § 68663, ineffective assistance of counsel, statute of limitations, tolling, criminal law, exhaustion requirement

Annotation By: Amy Burns