In re Friend

76 Cal.App.5th 623

291 Cal.Rptr.3d 616

IN RE Jack Wayne FRIEND on Habeas Corpus.

A155955

Court of Appeal, First District, Division 3, California.

Filed March 22, 2022

Jon M. Sands, Federal Public Defender, Lindsey Layer, Assistant Federal Public Defender, Stan Molever, Assistant Federal Public Defender for Defendant and Appellant.

Rob Bonta, Attorney General of California, Lance E. Winters, Chief Assistant Attorney General, James William Bilderback II, Senior Assistant Attorney General, Ronald S. Matthias, Senior Assistant Attorney General, Glenn R. Pruden, Supervising Deputy Attorney General, Alice B. Lustre, Supervising Deputy Attorney General, Gregg E. Zywicke, Deputy Attorney General for Plaintiffs and Appellants.

Fujisaki, J. Petitioner Jack Wayne Friend's appeal of his judgment and first petition for writ of habeas corpus were unanimously rejected by the California Supreme Court. Thereafter, California voters passed Proposition 66, the Death Penalty Reform and Savings Act of 2016¹ (Proposition 66), an initiative measure intended "to make the system of capital punishment ‘more efficient, less expensive, and more responsive to the rights of victims.’ " ( In re Friend (2021) 11 Cal.5th 720, 725, 280 Cal.Rptr.3d 313, 489 P.3d 309 ( Friend ).) As relevant here, Proposition 66 requires that capital habeas corpus petitions generally be presented to the sentencing court and that a successive habeas corpus petition be dismissed unless the court finds that the petitioner makes a showing of actual innocence or ineligibility for the death penalty. If a sentencing court denies a petitioner's second petition for writ of habeas corpus on successiveness or other grounds, the petitioner may appeal that decision only if the sentencing court or the Court of Appeal grants a certificate of appealability.

Here, the sentencing court denied petitioner's second petition for writ of habeas corpus and his request for a certificate of appealability. Petitioner then filed a request for a certificate of appealability in this court, which we denied. The California Supreme Court granted review, reversed our denial of petitioner's request, and remanded the matter to this court with directions to analyze whether petitioner has made a substantial showing that the claims in his second habeas corpus petition are not successive. ( Friend , supra , 11 Cal.5th at pp. 747–748.)

Following the Supreme Court's instructions, we now reconsider the matter in light of the standards and procedures articulated in Friend . Petitioner essentially acknowledges that all the claims in his second habeas petition were either known or could and should have been discovered earlier, but he contends the claims should not be considered successive because they were omitted from his initial habeas petition due to ineffective assistance of prior habeas corpus counsel. We conclude petitioner has not made a substantial showing of claims that are not successive because he fails to allege specific facts showing the omission of the claims from the initial petition reflects incompetence of prior habeas counsel. We also conclude petitioner fails to show a substantial claim that he is either actually innocent or ineligible for the death sentence. Accordingly, we again decline to issue a certificate of appealability as to any of the claims in petitioner's second habeas corpus petition.

FACTUAL AND PROCEDURAL BACKGROUND

In 1984, petitioner robbed an Oakland bar and fatally stabbed bartender Herbert Pierucci. A jury convicted petitioner of first degree murder and robbery ( Pen. Code, §§ 187, 189, 211 ),² and found that he inflicted great bodily injury (§ 12022.7, subd. (a)) in connection with the robbery, and that he personally used a knife in committing both crimes (§ 12022, subd. (a)). A second jury found true a special circumstance that the murder took place during the commission of a robbery (§ 190.2 former subd. (a)(17)(i), now subd. (a)(17)(A)). At the penalty phase, the jury returned a death verdict, and the trial court entered a judgment of death. The California Supreme Court unanimously affirmed the judgment ( People v. Friend (2009) 47 Cal.4th 1, 97 Cal.Rptr.3d 1, 211 P.3d 520 ) and in 2015 denied petitioner's state habeas corpus petition. (In re Friend , July 29, 2015, S150208.)

In 2016, petitioner obtained counsel for federal habeas corpus proceedings. Petitioner filed his initial federal habeas petition in 2016, and an amended petition in 2017. Several of the federal habeas claims had not yet been raised in state court, so the federal court granted a stay of the federal habeas proceedings so that petitioner could return to state court to exhaust his claims.

In June 2018, petitioner filed an "exhaustion petition"—i.e., a second and subsequent petition—in the Superior Court of Alameda County. Petitioner raised six claims in this petition: Claim One: discriminatory use of peremptory challenges by the prosecutor; Claim Two: ineffective assistance of trial counsel in jury selection and investigation of evidence for trial; Claim Three: unconstitutionality of imposing the death penalty due to petitioner's organic brain damage; Claim Four: denial of due process by the participation of Supreme Court Associate Justices Ming W. Chin and Carol A. Corrigan in prior proceedings; Claim Five: introduction of statements taken by police in violation of Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 ( Miranda ); and Claim Six: ineffective assistance of appellate counsel in failing to raise the Miranda claim on direct appeal. ( Friend , supra , 11 Cal.5th at p. 724, fn. 1.)

Pursuant to the provisions of Proposition 66, the superior court dismissed all of the claims in the exhaustion petition as successive. ( § 1509, subd. (d) (1509(d)).) The court also denied petitioner's request for a certificate of appealability. ( § 1509.1, subd. (c) (1509.1(c)).)

Petitioner filed a notice of appeal and, later, a request to this court for a certificate of appealability (sometimes referred to as "certificate request"). We denied the certificate request, and the notice of appeal was marked inoperative. The California Supreme Court granted review and ultimately remanded the matter to this court with directions to analyze whether the claims in petitioner's exhaustion petition are successive under the standard and procedures described in its opinion. ( Friend , supra , 11 Cal.5th at pp. 747–748.) We undertake that task below.

DISCUSSION

Prior to the passage of Proposition 66, California inmates seeking to collaterally attack their death judgments were required to file their state habeas corpus petitions directly in the California Supreme Court. ( Friend , supra , 11 Cal.5th at p. 726.) Whenever an inmate filed a second or subsequent habeas petition, the Supreme Court engaged in the following two-step analysis to assess application of the procedural bar on successive claims. First, the court would determine whether the petitioner who filed a second or subsequent petition had "adequately justified his or her failure to present his or her claims in an earlier petition." ( Id. at p. 728.) "In the rare instance in which the petitioner [was] able to adequately justify not having raised the claim earlier, the successiveness bar [did] not apply." ( Ibid. ) But if a petitioner could not adequately justify the failure to raise a claim earlier, the court proceeded to the second step of the analysis. ( Ibid. ) At this second step, the court would determine whether the petitioner had made a showing that the successive claim fell within the four-part fundamental miscarriage of justice exception set out in In re Clark (1993) 5 Cal.4th 750, 21 Cal.Rptr.2d 509, 855 P.2d 729 ( Clark ).³ ( Friend , at p. 728,.) If the petitioner could not show that the claim qualified for consideration under the fundamental miscarriage of justice exception, the claim was barred as successive. ( Ibid. )

As the Supreme Court explained, "the successiveness bar was ‘designed to ensure legitimate claims [were] pressed early in the legal process,’ " and it operated to preclude "consideration of claims that were unjustifiably omitted from earlier petitions" while providing " ‘a "safety valve" for those rare or unusual claims that could not reasonably have been raised at an earlier time.’ " ( Friend , supra , 11 Cal.5th at p. 728.)

A. Proposition 66 and the Supreme Court's Friend decision

To advance its goal of resolving death penalty cases more expeditiously, Proposition 66 introduced a different process for handling and resolving capital habeas corpus petitions. (Friend , supra , 11 Cal.5th at pp. 725, 727.) The provisions relevant to the issues in this case are found in sections 1509 and 1509.1.

Section 1509 requires that capital habeas corpus petitions generally be presented to the sentencing court instead of the California Supreme Court. ( § 1509, subd. (a).) Section 1509(d) marks a departure from the prior standard set out in Clark for considering claims in a successive petition by providing: "[A] successive petition whenever filed shall be dismissed unless the court finds, by the preponderance of all available evidence, whether or not admissible at trial, that the defendant is actually innocent of the crime of which he or she was convicted or is ineligible for the sentence .... ‘Ineligible for the sentence of death’ means that circumstances exist placing that sentence outside the range of the sentencer's discretion." (Italics added.)

In turn, section 1509.1(c) provides for an appeal of a sentencing court's denial of relief on a successive petition, as follows: "The petitioner may appeal the decision of the superior court denying relief on a successive petition only if the superior court or the court of appeal grants a certificate of appealability. A certificate of appealability may issue under this subdivision only if the petitioner has shown both a substantial claim for relief , which shall be indicated in the...