Metropolitan News-Enterprise


Tuesday, August 31, 2010


Page 3


S.C. Rejects Brown’s Effort to Throw Out Death Penalty Petitions

Lack of Qualified Habeas Corpus Counsel Requires Delay, Justices Rule


By Kenneth Ofgang, Staff Writer


The California Supreme Court yesterday rejected Attorney General Jerry Brown’s effort to speed up the death penalty review process by throwing out the petitions of Death Row inmates whose sentences have been affirmed but who do not have habeas corpus counsel.

In a pair of companion cases, the Supreme Court reaffirmed its previously informal practice of allowing inmates to file cursory or “shell” petitions in order to satisfy timeliness requirements, then allowing subsequently appointed counsel time to file amended petitions.

One of yesterday’s cases involved Edward Patrick Morgan, convicted in Orange Superior Court in 1996 of kidnapping, sexually assaulting, and murdering Leona Wong. Appellate counsel was appointed in 2000, and the sentence affirmed in 2007, but habeas corpus counsel has not been appointed because “we still have not found qualified counsel willing to accept the appointment,” Justice Joyce L. Kennard wrote.

Morgan’s petition, filed with the assistance of the California Appellate Project—which did not and does not represent him—was filed in April 2008; it raised only a claim of ineffective assistance, contained no supporting exhibits, and asked the court to allow Morgan “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 to defer briefing.

The defendant in the other case, Samuel Zamudio Jimenez, was sentenced to death in 1998 for two counts of murder with special circumstances of robbery-murder and multiple murder. Appellate counsel was appointed in 2002 and the sentence affirmed in 2008.

The Habeas Corpus Resource Center was appointed as habeas corpus counsel in 2007 and filed a single-claim petition, similar to the CAP petition filed by Morgan, along with a motion to allow the petitioner three years to file an amended petition raising additional claims.

The Attorney General’s Office opposed Morgan’s and Jimenez’s efforts to delay the time in which to file complete, legally and factually supported petitions. It noted that such delays may potentially toll the time in which to file federal habeas corpus petitions, thus dragging out the capital review process into one that can last for decades, and urged the high court to summarily deny the cursory petitions as lacking in merit.

Kennard, however, said indigent, non-legally trained. inmates should not be required to bear the consequences of delays in appointing qualified habeas corpus counsel.

Those delays, the justice explained, occur because the number of Death Row inmates has grown to more than 670 and about 300 of them lack habeas counsel, the HCRC is limited by law as to the number of attorneys it can hire and the available fiscal resources, and the number of attorneys who have the combination of trial and appellate skills to handle capital habeas cases is quite limited, Kennard wrote.

“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.”

As long as the source of the potential prejudice was this court’s lengthy but unavoidable delay in recruiting qualified counsel,” the justice said,  requests such as Morgan’s and Zamudio Jimenez’s are reasonable, the justice concluded.

Kennard was joined by Chief Justice Ronald M. George and Justices Ming Chin, Carlos Moreno, and Kathryn M. Werdegar.

Justice Carol Corrigan, joined by Justice Marvin Baxter, concurred in the results of both cases, solely on the ground that the petitioners had relied on past practice.

Corrigan argued that the court should no longer accept shell petitions, a practice that “eliminates any urgency to secure counsel” and “burdens this court and adds greatly to the long delays in death penalty proceedings.”

The court, she said, needs to improve its procedures for securing qualified habeas counsel but does not need “help one class of convicted inmates evade a federal statute of limitations.“ 

The cases are In re Morgan, 10 S.O.S. 5076, and In re Zamudio Jimenez, 10 S.O.S. 5083.


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