Metropolitan News-Enterprise


Tuesday, June 29, 2021


Page 1


California Supreme Court:

Proposition 66 Doesn’t Bar Showing of New Evidence

Restrictions on ‘Successive’ Petitions Only Apply to Those Raising Grounds That Could Have Been Put Forth Earlier, Opinion Says, Defining ‘Successive’ in Terms of Past Practice, Not Dictionary Definition of Term


By a MetNews Staff Writer


Proposition 66—the “Death Penalty Reform and Savings Act of 2016”—which bars successive petitions for habeas corpus in capital cases unless the defendant can show actual innocence or that the death penalty is applicable, does not preclude relief where the petition presents a ground that could not have been raised earlier, the California Supreme Court held yesterday.

“Successive” is to be taken not according to the dictionary definition of the term, but in conformity with how the term has been used, though not with uniformity, in pre-Proposition 66 cases, Justice Leondra Kruger said in her opinion for a unanimous court.

Proposition 66, enacted by voters on Nov. 8, 2016, adds to the Penal Code §1509, which provides in subd. (d):

“[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.”



Condemned Prisoner


Certificate of Appealability

The initiative also spawned §1509.1 then imposes a related procedural hurdle for litigants seeking to appeal the denial of a successive petition. It provides that “[t]he 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” which attests to the existence of “a substantial claim that the requirements of subdivision (d) of Section 1509 have been met.”

Kruger acknowledged that “dictionaries define the term ‘successive’ to mean ‘[f]ollowing in uninterrupted order; consecutive,” adding:

“If this dictionary definition controls, then Proposition 66’s restrictions on successive petitions would apply without exception to any habeas petition that follows the initial habeas petition.”

‘Dictionary Definition’ Avoided

Eschewing resort to the “dictionary definition,” the jurist employed the term as it has traditionally been applied in cases.

She wrote:

“We have mainly used the term ‘successive petition’ to refer specifically to a petition subject to the successiveness bar—that is, one raising claims that could have been presented in a previous petition.”

Kruger elaborated:

“When we have barred a claim as ‘successive,’ it is because we have concluded that the claim was omitted from an earlier petition without justification, and its presentation therefore constitutes abuse of the writ process. We have not, by contrast, considered the filing of a claim that could not have reasonably been raised in an earlier petition to be an abuse of the writ subject to the bar on successive petitions.”

Proper Understanding

The opinion declares:

“[P]roperly understood, Proposition 66’s successiveness restrictions do not limit the consideration of claims that could not reasonably have been raised earlier, such as those based on newly available evidence or on recent changes in the law—claims that have not previously been thought subject to successiveness limitations. Thus, under the law as amended by Proposition 66, habeas corpus petitioners must make a showing of actual innocence or death ineligibility if they seek a second chance to make an argument they could have made earlier. No such requirement applies to the habeas petitioner who raises a newly available claim at the first opportunity.”

Yesterday’s opinion comes in an unusual context. The Office of Attorney General agrees with the petitioner, Jack Wayne Friend, that the dictionary definition of “successive” should be avoided. Two amicus briefs—those of the Criminal Justice Legal Foundation and a group of legal scholars—argue that the initiative should be applied literally.

Friend was convicted in 1992 of a 1984 robbery/murder; that conviction was affirmed by the California Supreme Court in 2009, in a 117-page opinion; the state high court later denied his petition for a writ of habeas corpus in 2015. A subsequent habeas petition raising six new claims was filed in Alameda Superior Court in 2018; that court dismissed the petition as violative of Proposition 66; the First District Court of Appeal denied a certificate of appealability; the Supreme Court granted review.

Kruger’s opinion reverses the Court of Appeal’s denial of a certificate of appealability and directs that each of Friend’s six claims be evaluated to determine if it is “successive,” as the term has now been defined.

Issues raised by the petition include imposing the death penalty on Friend as constitutionally foreclosed in light of his organic brain damage, and that Justice Carol Corrigan and former Justice Ming Chin impermissibly participated in prior proceedings in the case.

The two justices, he contended, were ethically obliged to recuse themselves because they were former members of the Alameda County District Attorney’s Office which prosecuted him.

The case is In re Friend, 2021 S.O.S. 2764.


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