More Habeas Hypocrisy…

As the article below discusses, the California Supreme Court last week issued a decision putting strict page limits on habeas briefs.  What is ironic to me, however, is that courts have created the situation where attorneys feel they must file ridiculously thick briefs due to all the strict procedural rules created by courts aimed at causing habeas petitioners to default claims for not properly raising or exhausting them.  At the Ohio Innocence Project, we’ve learned through experience that we even have to raise issues that we feel are not supported by the evidence (and possibly subject to Rule 11 sanctions), just to keep the courts from later ruling that we have not properly preserved issues (see story here).


SAN FRANCISCO — Frustrated by 500-page briefs in capital habeas corpuscases, the California Supreme Court issued its own 120-page ruling Thursday laying out strict new limits and warning of sanctions if they’re not followed.

The court harshly criticized the defense lawyers in In re Reno12 C.D.O.S. 10049, labeling various portions of their petition “untimely,” “improper,” “patently meritless,” “grossly misleading” and based on “stock justifications.” But it stopped short of issuing sanctions, as it had threatened to do beforeargument in the case, which had caused a storm in the capital defense bar. Instead, the court cautioned that violating its new rules, which include a 50-page limit on successive habeas petitions, could lead to sanctions and State Bar discipline in the future.

Abusive habeas petitions “along with other factors have created a significant threat to our capacity to timely and fairly adjudicate such matters,” Justice Kathryn Mickle Werdegar wrote for a unanimous court. “Some death row inmates with meritorious legal claims may languish in prison for years waiting for this court’s review while we evaluate [other prisoners’] petitions raising dozens or even hundreds of frivolous and untimely claims.”

The Sacramento-based victim rights group Criminal Justice Legal Foundation immediately hailed the new limits as “a first step to pare back the time and tax dollars wasted on unnecessary, repetitive appeals on claims that typically have nothing to do with the guilt of the murderer.”

But one of the defense lawyers in the case, James Thomson of Berkeley, said the limits could lead to more litigation in federal court over unexhausted habeas claims. “When you go back to federal court you’re going to be limited to what you raised in state court,” he said. “It may cause a lot more problems than it solves.”

The defendant in the case, who goes by the single name Reno and was previously known as Harold Ray Memro, has been on death row for 32 years and gone through eight court-appointed attorneys. He was sentenced to death in 1980 after being convicted for the throat-slashing murders of two pre-teen boys in 1978 and the strangulation and sexual assault of a 7-year-old boy in 1976.

Virtually all of the evidence against Reno is based on his confession, which he says he gave to police only because they were threatening to ram his head into a wall. Two other arrestees testified that they’d been threatened with the same beating by the same police officers. The Supreme Court ordered a new trial in 1985 so that Reno could conduct discovery on the officers’ personnel files. But by the time of his 1987 retrial the police department had destroyed the records.

He was sentenced to death a second time and the California Supreme Court affirmed the judgment and rejected Reno’s first habeas petition in 1995. He then brought new habeas claims in federal court and in 1998 a judge sent the case back to the state Supreme Court, saying 18 of those claims had not yet been exhausted.

In 2004, defense lawyers Thomson and Peter Giannini of Los Angeles filed Reno’s second state habeaspetition, raising 143 claims over 519 pages. Many had already been raised and rejected on appeal or in Reno’s first petition. “Petitioner has included all known claims of constitutional error related to his trial, convictions, sentence and imprisonment for the sake of clear presentation and so this court can assess the cumulative effect and determine that a miscarriage of justice occurred,” states the petition, signed by Giannini. “This includes claims that have been previously presented.”

Werdegar wrote for the court that this was a prime example of abusive writ practice. “Voluminous in size and abounding in detail, the petition nevertheless raises claims almost all of which are procedurally barred,” she wrote, saying defense counsel had an ethical duty to spell out which claims were untimely or otherwise barred.

The court set out procedural rules for habeas petitions 18 years ago in In re Clark, Werdegar noted. But in the intervening years, “experience has taught that in capital cases, petitioners frequently file second, third and even fourth habeas corpus petitions raising nothing but procedurally barred claims.” Those petitions require “several weeks if not months of dedicated work by members of the court” while rarely justifying their untimely filing.

Werdegar found those transgressions particularly troubling given what she described as California’s generally favorable rules for habeas litigation. “Vis-à-vis other states, we authorize more money to pay post-conviction counsel, authorize more money for post-conviction investigation, allow counsel to file habeas corpus petitions containing more pages, and permit more time following conviction to file a petition for what is, after all, a request for collateral relief.” At the same time, she acknowledged the court’s ongoing challenge finding sufficient qualified counsel to take on death penalty habeas cases.

Consequently, the court announced that while there would continue to be no limit on initial habeas petitions, successive petitions must be limited to 50 pages. They also must spell out which claims have been raised and rejected before, which could have been raised earlier, which are “truly new,” and which have been deemed unexhausted by a federal court. That information, the Supreme Court said, should be included in a table that may run an additional 10 pages.

While not imposing sanctions in this case, Werdegar added, “attorneys (and parties) in future cases are forewarned” that failure to observe the limits “may result in financial sanctions and/or having this court refer the offending attorney to the State Bar for potential discipline.”

Thomson said he had a hard time imagining how counsel could observe the new limits in a complex death penalty case. Just setting out the statements of facts, procedural history, jurisdiction and unlawful restraint typically takes 20 or more pages, he said. “That’s not going to leave much room to fully develop the new claims you have to raise,” he said. When counsel return to federal court, many will face judges who want to know why all federal claims weren’t fully exhausted, he said he expects.

Thomson stressed that in his case, the previous post-conviction lawyer for Reno declared that he’d failed to raise claims he should have, and an independent defense lawyer validated that admission. “I did what a lawyer is supposed to do when protecting a client’s interest,” he said.

Deputy attorney general Mary Sanchez argued the case for the state.

One response to “More Habeas Hypocrisy…

  1. Docile Jim Brady – Columbus OH 43209

    “untimely,” “improper,” “patently meritless,” “grossly misleading” and based on “stock justifications.”

    I wonder how many „ if any „ of those labels applied to Clarence Gideon ?

    What if the lawyers in Moore et al. v. Dempsey, 261 U.S. 86 (1923), had been intimidated by Frank v. Mangum 237 U.S. 309 (1915) ?

    Arkansas boldly claimed (albeit in more sophisticated language) „ “Yea , so what if torture was used to obtain confessions and the trial was dominated by a mob ? … no harm „ nor foul „ nor denial of Due Process ”

    Mr. Justice Holmes and five others had a different answer .

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