In re Seumanu

319 Cal.Rptr.3d 238

IN RE Ropati Afatia SEUMANU, On Habeas Corpus.

A169146

Court of Appeal, First District, Division 4.

Filed March 11, 2024

As Modified March 27, 2024

Trial Court: Superior Court of California, County of Alameda Trial Judge: Hon. Thomas Stevens (Alameda County Super. Ct. Nos. HCH24057A1, H24057A)

Michael R. Snedeker and Lisa R. Short, under appointment by the Court of Appeal, for Appellant.

Rob Bonta, Attorney General, Lance E. Winters and James William Bilderback II, Senior Assistant Attorneys General, Alice B. Lustre, Supervising Deputy Attorney General, for Respondent.

STREETER, J.

Following the superior court’s dismissal of a petition for habeas corpus relief in this capital case, petitioner Ropati Afatia Seumanu filed a notice of appeal and asked that we issue a certificate of appealability (COA) under Penal Code¹ section 1509.1, subdivision (c) (section 1509.1(c)). For the reasons explained below, we will issue a COA on one of nine claims in Seumanu’s petition but will decline to do so as to the remainder of his claims.

Although this COA request is simply a motion—something we may resolve summarily, since we are not called upon to make a decision on the merits of an appeal—we publish this opinion because of the relative dearth of published case law applying our Supreme Court’s holdings in Briggs v. Brown (2017) 3 Cal.5th 808, 825, 221 Cal.Rptr.3d 465, 400 P.3d 29 (Briggs) and In re Friend (2021) 11 Cal.5th 720, 280 Cal.Rptr.3d 313, 489 P.3d 309 (Friend. I) and to provide some guidance as to how COA requests under 1509.1(c) should be handled more generally.

In the course of the opinion, we address three issues of first impression: (1) Is the 10-day time limit in section 1509.1(c) for the grant or denial of COA requests in the Court of Appeal mandatory or directory? (2) How strong a showing must a COA applicant make to meet the "substantial claim for relief" test in section 1509.1(c)? And (3) is an as-applied attack on the constitutionality of section 1509, subdivision (d) (section 1509(d)) appealable under section 1509.1(c)?

We answer those three questions as follows: (1) section 1509.1(c) sets no mandatory deadline for granting or denying COA requests, (2) a "substantial claim to relief" under section 1509.1(c) requires a showing strong enough for reasonable jurists to debate whether the trial court erred and thus that justifies allowing the appeal to proceed to decision on the merits, and (3) as-applied attacks on the constitutionality of section 1509(d) are appealable under section 1509.1(c).

We also address the requirement that a COA applicant under section 1509.1(c) provide an adequate record for review. Several of Seumanu’s claims fail to warrant issuance of a COA on that ground. Nearly two years ago, the decision in In re Friend (2022) 76 Cal.App.5th 623, 639, 291 Cal. Rptr.3d 616 (Friend II) made clear that COA applicants must provide a record sufficient to test allegations of ineffective assistance of counsel under the demanding standards that apply in this context. We reiterate and in some respects expound upon what our colleagues in Friend II had to say on that issue.

Finally, in a rare but not unknown three-judge concurrence (see, e.g., People v. Nguyen (2017) 12 Cal.App.5th 44, 49–51, 218 Cal.Rptr.3d 282) (conc. opn. of Bedsworth, J.), we add some additional observations about the applicant’s burden to provide adequate record materials. In that separate opinion, we suggest that, for added clarity, the Judicial Council may wish to consider revisiting the rules of court dealing with the procedures for COA requests in proposed section 1509.1 appeals and the forms counsel are to use in preparing these requests.

I. PROCEDURAL BACKGROUND

Because the facts of Seumanu’s conviction offenses are of limited relevance to the nine claims for habeas corpus relief at issue here, we summarize below only the procedural background. To the extent the crime facts bear on our analysis—on issues of prejudice, certainly they do—a factual recitation of the circumstances surrounding the offenses may be found in the Supreme Court’s opinion affirming Seumanu’s convictions and sentence on direct appeal. (See People v. Seumanu (2015) 61 Cal.4th 1293, 1303–1307, 192 Cal.Rptr.3d 195, 355 P.3d 384 (Seumanu).) We assume familiarity with that opinion.

In 2000, a jury in Alameda County Superior Court convicted Seumanu of first degree murder (§ 187), kidnapping to commit robbery (§ 209, subd. (a)), and first degree robbery (§ 211). (Seumanu, supra, 61 Cal.4th at p. 1302, 192 Cal.Rptr.3d 195, 355 P.3d 384.) Along with its verdicts of guilt on the first degree murder and kidnapping charges, the jury found true special circumstance allegations that Seumanu committed a murder while engaged in the commission of a robbery and a kidnapping. (§ 190.2, subd. (a)(17)(A) & (B); Seumanu, at p. 1302, 192 Cal.Rptr.3d 195, 355 P.3d 384.)

In addition, the jury found that for all three felonies, Seumanu used a firearm, to wit, a shotgun. (§ 12022.5; Seumanu, at p. 1302, 192 Cal.Rptr.3d 195, 355 P.3d 384.) After weighing the aggravating and mitigating evidence, the jury set the penalty at death under the 1978 death penalty law. (§ 190.1 et seq.; Seumanu, at p. 1302, 192 Cal.Rptr.3d 195, 355 P.3d 384.) The California Supreme Court affirmed his convictions and death sentence on automatic appeal. (Seumanu, supra, 61 Cal.4th at p. 1377, 192 Cal.Rptr.3d 195, 355 P.3d 384.)

In 2012, Seumanu sought collateral review of his conviction and sentence via habeas corpus petition in the California Supreme Court (the Initial Petition). Following the summary denial of the Initial Petition on the merits, Seumanu filed a petition for writ of habeas corpus in the United States District Court for the Northern District of California (the Federal Petition). Proceedings on the Federal Petition were stayed to allow Seumanu to exhaust his remedies in state court.

In 2022, Seumanu filed a petition for habeas corpus relief (the Exhaustion Petition) in the Alameda County Superior Court alleging nine claims that were not presented in the Initial Petition. In the Exhaustion Petition, he alleged that the failure to raise each of these nine claims by the attorney who prepared and filed his Initial Petition was constitutionally ineffective assistance of counsel.

In late September 2023, a little over 11 months after the Exhaustion Petition was filed, the assigned Alameda County Superior Court judge (the trial court) issued a reasoned order of dismissal under section 1509(d), relying on guidance from the Supreme Court in Friend I, supra, 11 Cal.5th 720, 280 Cal.Rptr.3d 313, and more recently from our First District, Division Three colleagues in Friend II, supra, 76 Cal. App.5th at p. 639, 291 Cal.Rptr.3d 616, which was decided on remand following the decision in Friend I.

The trial court found each of the claims in the Exhaustion Petition to be successive and rejected various arguments from Seumanu that section 1509(d) is unconstitutional. In the same order, the trial court declined to issue a COA. Seumanu filed a timely notice of appeal, which was lodged with this court on November 27, 2023.

Accompanying his notice of appeal was a request that we issue a COA and appoint attorneys Michael Snedeker and Lisa Short to represent him in this appeal. These two attorneys were appointed by the United States District Court for the Northern District of California in 2017 to represent Seumanu in connection with the Federal Petition. They filed and pursued the Exhaustion Petition in the trial court, and then prepared the notice of appeal and the COA request.

II. PROPOSITION 66 BACKGROUND

Before we turn to the core issue presented here—whether Seumanu is entitled to a COA—we preface our analysis by sketching out some general legal background concerning Proposition 66, a statutory ballot initiative adopted by the voters at the November 2016 statewide election. (See Briggs, supra, 3 Cal.5th at pp. 822–823, 221 Cal.Rptr.3d 465, 400 P.3d 29.)

"Proposition 66 enacted a number of statutory reforms in an effort to make the system of capital punishment ‘more efficient, less expensive, and more responsive to the rights of victims.’ [Citation.] Among these reforms were various changes to the procedures for handling and resolving habeas corpus petitions in capital cases. [Citation.] The bulk of these changes are found in newly added Penal Code section 1509." (Friend I, supra, 11 Cal.5th at p. 725, 280 Cal.Rptr.3d 313, 489 P.3d 309.)

The Proposition 66 scheme draws a fundamental distinction between "initial" petitions for habeas corpus relief and "successive" petitions for habeas corpus relief. (See § 1509(d); § 1509, subd. (a).) Central to the scheme is section 1509(d), which requires dismissal of any "successive" petition "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." As defined by section 1509(d), the statutory phrase " ‘[i]neligible for the sentence of death’ " means "circumstances exist placing that sentence outside the range of the sentencer’s discretion" (for example, the petition- er was under the age of 18 when the crime of conviction took place, or suffers from an intellectual disability). "A claim relating to the sentencing decision under Section 190.3 is not a claim of actual innocence or ineligibility for the purpose of this section." (§ 1509(d).)

Prior to Proposition 66, "Whereas the approved practice was for all capital habeas corpus petitioners to file directly" in the California Supreme Court, "Penal Code section 1509 now calls for most capital petitions to be heard initially in the sentencing court." (Friend I, supra, 11 Cal.5th at p. 726, 280 Cal.Rptr.3d 313, 489 P.3d 309; § 1509, subd. (a).) The superior court must issue "a statement of decision explaining the factual and legal basis...