In Re Sanders

KENNARD, J., Concurring and Dissenting.

Justice Werdegar’s plurality opinion states: “[Wjhen ... an attorney representing a capital defendant essentially abandons his client and fails, in the face of triggering facts, to conduct an investigation in order to determine whether there exist potentially meritorious claims, such abandonment constitutes good cause for substantial delay in the presentation of potentially meritorious claims by subsequent counsel.” (Plur. opn., ante, at p. 701.) I agree.

I disagree, however, with the plurality’s further conclusion that Dennis Riordan, petitioner’s highly competent appellate counsel, abandoned him in this case. Therefore, with the exception of any issues for which petitioner has explained the delay on grounds other than abandonment, I would deny all claims in the petition for writ of habeas corpus as untimely.

As the plurality explains (plur. opn., ante, at pp. 707-708), the duty imposed on a habeas corpus counsel in a capital case has three phases. In the first phase, directly after counsel’s appointment, counsel should review the record, trial counsel’s case files, and the appellate briefs, and should discuss the case with trial counsel and the client. (See Supreme Ct. Policies Regarding Cases Arising From Judgments of Death, Policy 3, Standards Governing Filing of Habeas Corpus Petitions and Compensation of Counsel in Relation to Such Petitions (Policy 3), std. 1-1.) In the second or investigative phase, counsel should investigate potential habeas corpus claims as to which counsel is aware of “triggering facts,” that is, facts sufficient to warrant further investigation, but not necessarily sufficient to state a prima facie case for relief. (In re Gallego (1998) 18 Cal.4th 825, 833 [77 Cal.Rptr.2d 132, 959 P.2d 290].) Counsel should seek investigative funds from this court when necessary to achieve this task. (Supreme Ct. Policies Regarding Cases Arising From Judgments of Death, Policy 3, stds. 2-1 to 2-8.3.) In the third or petition phase, after counsel has diligently investigated all potential *727claims, counsel should prepare and file, if appropriate, a habeas corpus petition presenting all potentially meritorious claims.

Here, the plurality concludes that appellate counsel abandoned petitioner at the second step of this process: the duty to investigate those potential claims as to which counsel possesses triggering facts. According to the plurality, counsel was aware of triggering facts, yet he failed to seek funds from this court to conduct an investigation. I disagree. In my view, the petition for writ of habeas corpus offers no reason to believe that counsel was aware of triggering facts. As a result, he had no further duty to investigate.

The plurality furnishes a laundry list of 10 claims in the petition for writ of habeas corpus that, it contends, reveal “potentially disturbing aspects of petitioner’s trial . . . .” (Plur. opn., ante, at p. 713.) The plurality asserts that triggering facts for “many” of these claims, which the plurality conveniently neglects to identify, “were either known to petitioner or exist in the appellate record,” and that these claims “would certainly appear to have been ‘potentially meritorious’ for purposes of investigation and, if appropriate, for presentation to this court.” (Ibid., italics added.) But in determining whether appellate counsel abandoned petitioner, petitioner’s knowledge of triggering facts is irrelevant: the only question is whether counsel was aware of such facts but failed to act on them.

As to nine of these ten claims mentioned in the plurality’s list, there is no evidence before this court that counsel was aware of triggering facts, or that such facts appear in the appellate record.1 Indeed, some of these claims are so patently unmeritorious that even if appellate counsel had known of triggering facts, he could reasonably have decided not to investigate them, because investigation was unlikely to lead to an “issue of possible merit.” (Supreme Ct. Policies Regarding Cases Arising From Judgments of Death, Policy 3, std. 2-4.2.) For example, a competent appellate attorney could reasonably have found no need to investigate facts supporting petitioner’s contention that one of the jurors committed misconduct by reading a letter *728sent by petitioner to the juror, because any conceivable misconduct arising from the juror’s decision to read the letter was invited by petitioner. (See People v. Hines (1997) 15 Cal.4th 997, 1054 [64 Cal.Rptr.2d 594, 938 P.2d 388].) But the 10th claim, on which petitioner’s claim of abandonment is primarily based, requires more careful consideration.

Petitioner contends that trial counsel was ineffective because he failed to conduct an adequate penalty investigation. Appellate counsel’s declaration describes his discovery, after one of his associates had met with trial counsel and examined his files, of the following: “[T]rial counsel had conducted almost no penalty investigation. He had not interviewed any potential witnesses about [petitioner’s] family, his life or his character. Nor had trial counsel obtained records and documents about [petitioner’s] background.”

Ordinarily, these are precisely the type of triggering facts that would necessitate a thorough investigation by habeas corpus counsel. In this case, however, petitioner insisted that his trial counsel should present no evidence at the penalty phase of his capital trial, because petitioner believed a sentence of life in prison without the possibility of parole was “unacceptable.” The trial court went to great lengths to ensure that petitioner’s decision not to present penalty phase evidence was knowing and intelligent: It appointed independent counsel to consult with petitioner and it appointed a psychiatrist, Dr. F.A. Matychowiak, to determine whether petitioner’s decision not to present evidence at the penalty phase was a rational one. Dr. Matychowiak concluded that petitioner was of above-average intelligence, that he was “free of any specific disease or disorder that would preclude his being able to reason or understand his present circumstances or which would preclude his assisting intelligently in his own defense,” and that his decision not to present evidence at the penalty phase was “a matter of wisdom rather than of sanity.” Thus, any possible inadequacy in trial counsel’s penalty phase investigation was irrelevant (because petitioner made a knowing and intelligent decision not to present penalty phase evidence at trial), and this court would, in my view, have denied a request by appellate counsel for funds to conduct the type of penalty phase investigation that should ordinarily have been performed by trial counsel. Therefore, appellate counsel did not abandon petitioner by failing to seek funds to conduct such an investigation.

The plurality makes much of a declaration in which appellate counsel, while conceding that he failed to investigate potential habeas corpus claims, attributes this failure to the pressures of other work rather than to the absence of information worthy of investigation. I do not agree that counsel’s declaration establishes that he abandoned petitioner.

*729Counsel’s failure to acknowledge the absence of triggering facts is hardly surprising. To state plainly that he was aware of no information worthy of investigation would put counsel in the position of arguing against the interests of his former client. In attributing his inaction to the press of other business, rather than to a lack of viable issues, counsel is merely demonstrating loyalty to his former client. Although the majority is correct that a heavy caseload cannot excuse an attorney’s failure to discharge his habeas corpus duties, “counsel has a duty to investigate potential habeas corpus claims only if counsel has become aware of information that might reasonably lead to actual facts supporting a potentially meritorious claim.” (Supreme Ct. Policies Regarding Cases Arising From Judgments of Death, Policy 3, std. 1-1.) Petitioner fails to show that counsel was aware of any such information.

In petitioner’s appeal, counsel raised numerous claims of federal constitutional error. Although this court rejected those claims, they were not without substance; indeed, two justices of this court were of the view that petitioner was entitled to relief on four of these grounds. (See People v. Sanders (1990) 51 Cal.3d 471, 530-538 [273 Cal.Rptr. 537, 797 P.2d 561] (dis. opn. of Mosk, J., joined by Broussard, J.); id., pp. 538-547 (dis. opn. of Broussard, J., joined by Mosk, J.).) Because these claims had been raised and rejected on appeal, petitioner could file a habeas corpus petition in federal court raising each of these claims without first filing a habeas corpus petition in this court. Thus, appellate counsel’s decision not to file a habeas corpus petition did not deprive petitioner of the chance to litigate what were likely to be his strongest claims in federal court. With no triggering facts that would warrant additional habeas corpus investigation, appellate counsel could reasonably have concluded that post-appeal attempts to overturn petitioner’s convictions and death sentence should focus on these claims.

Therefore, I would reject petitioner’s contention that this court should excuse his delay in raising certain claims in his habeas corpus petition on the ground that his appellate counsel abandoned him.

On August 24, 1998, petitioner filed a “Motion for Leave to Supplement Timeliness Allegations,” requesting 60 days to amend his timeliness allegations to bring them into compliance with In re Robbins (1998) 18 Cal.4th 770 [77 Cal.Rptr.2d 153, 959 P.2d 311], and In re Gallego, supra, 18 Cal.4th 825, both filed by this court 3 weeks before petitioner’s motion. This court took no action on the request, and today the plurality denies it as moot. (Plur. opn., ante, at p. 724, fn. 16.) Had a majority of the court agreed with me that petitioner has not shown abandonment by appellate counsel, I would have voted to grant this motion. (See In re Robbins, supra, 18 Cal.4th at p. 819 (conc. opn. of Kennard, J.) [stating that the “newly clarified timeliness pleading requirements” in Robbins should not be applied to bar claims in pending petitions “without affording the petitioner an opportunity to amend the petition, whenever possible, to cure the deficiencies”].)